*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 42 U.S.C. §§ 12101-12213 (1995).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30335

Summary Calendar

_____________________

HAROLD JOHN CLOUSE,

Plaintiff-Appellant,

versus

BOISE CASCADE, INC. d/b/a

Boise Cascade DeRidder Paper Mill, Et Al.,

Defendants,

BOISE CASCADE CORP.,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Louisiana

(95-CV-1415)

_______________________________________________________

October 30, 1997

Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

Harold John Clouse appeals an adverse summary judgment in

his suit against his employer, Boise Cascade Corporation, for

discrimination under the Americans with Disabilities Act (ADA),1
2 LA. REV. STAT. ANN. §§ 46:2251-2256 (1997).

3 LA. REV. STAT. ANN. §§ 51:2231-2265 (1997).

2

the Louisiana Civil Rights for Handicapped Persons Act,2 and the

Louisiana Human Rights Commission Act.3 We affirm.

Background

Harold Clouse is a five-step mechanic at Boise Cascade’s

paper mill in DeRidder, Louisiana. Five-step mechanics are

responsible for the maintenance and repair of the machinery at

the mill. The position includes heavy physical labor, such as

changing out conveyors, repairing pumps and replacing refiner

plates. 

In 1992, Clouse had surgery to alleviate a back problem. 

After a few months, he returned to work under restrictions and

was steadily improving to a point where he could perform his

regular duties. However, he was then involved in a car wreck and

re-injured his back. Clouse again was off work for a number of

months. He returned to work under restrictions, but this time

his condition did not improve as quickly. In December 1994,

Clouse underwent a functional capacity evaluation to determine

his physical capabilities. As a result of this evaluation, his

doctor restricted him from lifting more than fifteen pounds from

floor to knuckle height. 
3

In January 1995, Clouse presented these restrictions to

Boise. The management of the mill determined that the

restrictions prevented Clouse from performing the job of a fivestep mechanic. After a meeting, Boise placed Clouse on inactive

status, retaining him as an employee without pay. Clouse

provided Boise with a reevaluation in March 1996, at which point

the restrictions were modified to allow him to lift up to fifty

pounds from floor to knuckle height. Boise returned Clouse to

work in an unlimited capacity in his job as a five-step mechanic.

Clouse filed suit in August 1995, claiming that Boise

Cascade Corporation had violated the ADA and Louisiana disability

discrimination laws when it placed him on unpaid leave of

absence. After several months of discovery, Boise moved for

summary judgment on the grounds that Clouse did not have the

requisite “disability” to be protected by the ADA. The trial

court granted Boise’s motion, holding that Clouse failed to prove

he had a disability under any definition of the term. Following

dismissal of the federal claims, Boise moved for summary judgment

on Clouse’s state law disability claims. The court granted this

motion, reasoning that Louisiana’s disability discrimination laws

contained definitions of disability virtually identical to the

ADA. The court entered judgment dismissing all of Clouse’s

claims with prejudice.
4 Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 758 (5th

Cir. 1996).

5 Fed. R. Civ. P. 56(c) (1997). 

6 Rogers, 87 F.3d at 758.

7 42 U.S.C. § 12102(2) (1995).

4

DISCUSSION

I. Standard of Review

We review the district court’s grant of summary judgment as

a matter of law de novo, employing the same criteria used in that

court.4 Summary judgment is proper only if the evidence shows

that “there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as matter of law.”5

II. ADA claims

“As a threshold requirement in an ADA claim, the plaintiff

must, of course, establish that he has a disability.”6 The ADA

defines “disability” three ways: (1) having an impairment that

substantially limits one or more of the major life activities;

(2) a record of such impairment; or (3) being regarded as having

such an impairment.7 

There is no dispute as to Clouse’s physical capabilities in

January 1995. He could, during an eight hour day, walk for six
8 29 C.F.R. § 1630.2(i) (1996). 

9 29 C.F.R. § 1630.2(j)(1) (1996).

5

to eight hours, sit for one to three hours and drive for one to

three hours. He could also use his hands for repetitive single

grasping, pushing and pulling and fine manipulation. He could

bend frequently and squat and climb occasionally. He could lift

fifteen pounds from floor to knuckle height and up to fifty hands

above knuckle height. The issue is whether the lifting

restriction substantially limited a major life activity.

The ADA does not define “substantially limit” or “major life

activity.” The Equal Employment Opportunity Commission

regulations define “major life activities” as “functions such as

caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.”8 The

regulations define “substantially limits” as:

(i) Unable to perform a major life activity

that the average person in the general

population can perform; or

(ii) Significantly restricted as to the

condition, manner or duration under which an

individual can perform a particular major

life activity as compared to the condition,

manner, or duration under which the average

person in the general population can perform

that same major life activity.9

In his affidavit opposing summary judgment, Clouse stated

that his back impairment limited his work capabilities, his

activities with his grandchildren, and “other activities that
10 See Fed. R. Civ. P. 56(e) (1997). 

11 29 C.F.R. § 1630.2(j)(3) (1996).

12 29 C.F.R. § 1630.2(j)(2) (1996). 

13 29 C.F.R. § 1630.2(j)(3)(ii) (1996).

6

required activity outside his limitations.” Clouse’s reference

to “other activities” does not constitute specific facts

sufficient to demonstrate a genuine issue for trial.10 Playing

with one’s grandchildren is not a major life activity in the same

category as walking or speaking; an inability to lift the

children up from the ground does not constitute a disability. 

Thus, the only potential major life activity that may have been

substantially limited was Clouse’s work capabilities.

The EEOC regulations define “substantially limits” with

regards to working as:

significantly restricted in the ability to

perform either a class of jobs or a broad

range of jobs in various classes as compared

to the average person having comparable

training, skills and abilities. The

inability to perform a single, particular job

does not constitute a substantial limitation

in the major life activity of working.11 

The following factors should be considered: (1) the nature and

severity of the impairment; (2) its duration; and (3) the

permanent or long term impact of the impairment.12 Additionally,

with regards to working, the geographical area is relevant.13

An inability to perform a discrete task, such as lifting

heavy objects, does not constitute a “disability.” In Aucutt v.
14 Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1319 (8th

Cir. 1996).

15 Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996).

16 Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).

7

Six Flags Over Mid-America, Inc., the Eighth Circuit found no

impact on a plaintiff’s major life activities where he was

subject to a 25 pound lifting restriction.14 In Ray v. Glidden

Co., the plaintiff was restricted from lifting 44-56 pound

containers continuously, yet this Court found no impact on a

major life activity.15 Similarly, in Dutcher v. Ingalls

Shipbuilding, this Court held that the plaintiff’s inability to

climb did not constitute a disability although it restricted her

ability to perform specific jobs as a welder.16

Clouse offered no evidence regarding the jobs available in

his geographic area or to people with his skills so as to

distinguish his limitation from these cases. For a little over a

year, he was restricted from lifting medium to heavy objects from

floor to knuckle height. He was not restricted in lifting nor

carrying items above knuckle height. We hold that Clouse’s

limited restriction did not substantially limit a major life

activity.

Clouse also contends that he has a record of impairment, the

second definition of disability under the statute. However, just

as there was no evidence that Clouse suffered from an impairment

that substantially limited a major life activity, he does not
17 42 U.S.C. § 12102 (1995).

18 Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996), cert.

denied, 117 S.Ct. 770 (1997). 

19 See Aucutt, 85 F.3d at 1320.

8

have a record of “such impairment.”17 There is no evidence that

Clouse’s medical history disqualified him from a broad class of

jobs. Clouse has worked for Boise since 1970, and continues to

do so today. Clouse cannot conclude that his employer

discriminated against him simply because his medical records

reveal past medical problems. 

Finally, Clouse contends that Boise “regarded” him as having

the requisite ADA impairment, under § 12102(2)(C). An employer

violates the ADA if the employee has an impairment which is not

substantially limiting, but which the employer perceives as

constituting a substantially limiting impairment.18 An

assessment of an employee’s ability to perform a job, based on

actual medical conditions, does not constitute regarding the

employee as disabled.19 The record indicates that Boise believed

that Clouse was unable to perform the five-step mechanic’s job

based on his inability to lift heavy objects from the floor. 

Nothing in the record suggests that Boise believed that Clouse’s

condition substantially limited his ability to perform a whole

class of jobs.

III. State law claims
20

 LA. REV. STAT. ANN. §§ 46:2251-46:2256 (1997).

21 LA. REV. STAT. ANN. §§ 51:2231-2265 (1997).

22 Rogers v. Corrosion Products, Inc., 42 F.3d 292, 295 (5th Cir.),

cert. denied, 115 S.Ct. 2614 (1995).

23 Id. 

24 See, e.g., Plummer v. Marriott Corp., 654 So.2d 843, 848 (La. App. 4

Cir.), writ denied, 660 So.2d 460 (La. 1995). 

9

Clouse also brought claims under the Civil Rights for

Handicapped Persons Act20 and the Louisiana Human Rights

Commission Act.21

The Louisiana Supreme Court has not determined what

constitutes a disability under the state discrimination laws. 

Accordingly, the federal court must determine, to the best of its

ability, what the Louisiana Supreme Court would decide if faced

with the issue.22 The decisions of lower state courts should be

given some weight, but they are not controlling.23

In granting summary judgment for Boise, the district court

noted the “remarkably similar” definitions of “disability,”

“impairment,” and “major life activities” in the two state

statutes, when compared with the ADA. In other areas of

employment discrimination law, the Louisiana courts have looked

to the federal case law to determine the meaning of terms in

state statutes which parallel terms in federal statutes.24

Three Louisiana appellate courts have addressed the issue of

what constitutes a disability under the Civil Rights for

Handicapped Persons Act. In Kraemer v. Santa Fe Offshore
25 Kraemer v. Santa Fe Offshore Constr. Co., 579 So.2d 488 (La. App.

4th Cir. 1991).

26 Id.

27 Id. at 490.

28 Lege v. N.F. McCall Crews, Inc., 625 So.2d 185 (La. App. 3d Cir.),

writ denied, 627 So.2d 638 (La. 1993). 

29 Id. at 187.

30 Id. at 188.

10

Construction Co., the plaintiff was a welder who, because of

allergies, could work onshore, but not offshore.25 Due to the

restriction, he was discharged.26 The court found that no major

life activities were curtailed due to plaintiff’s inability to

work offshore.27

In Lege v. N.F. McCall Crews, Inc., a boat captain was

discharged by his employer because an abdominal virus required

him to “take it easy at times,” and to stop and catch his breath

after moving up and down the stairs.28 The court found that the

plaintiff did not have a health condition which substantially

limited one of life’s major activities because he eventually

found employment with another company as captain and did not

consider himself handicapped.29 In holding that the jury

correctly found that N.F. McCall Crews did not regard the

plaintiff as handicapped under the statute, the court stated,

“[t]his statute does not protect a person who is unsuited for one

position for one employer.”30
31 Turner v. City of Monroe, 634 So.2d 981 (La. App. 2d Cir. 1994). 

32 Id. at 983.

33 Id. at 984.

34 LA. REV. STAT. ANN. § 51:2232(11)(a) (1997).

35 LA. REV. STAT. ANN. § 51:2231 (1997).

11

In Turner v. City of Monroe, the plaintiff underwent back

surgery and was cleared for work as a signal technician after a

full recovery, but the defendant refused to allow him to return

to work.31 The trial court found that the plaintiff had no

impairment which would affect his ability to work, but that his

employer regarded him as being impaired.32 Affirming the lower

court’s decision, the Louisiana appellate court noted that the

definitions in the Louisiana statute mirror those in the federal

law.33 These cases indicate that the Louisiana Supreme Court

would interpret disability in the same manner as this Court has.

We have found no Louisiana cases addressing disability

claims under the Louisiana Commission on Human Rights Act. The 

statute’s definitions track the ADA language virtually

verbatim.34 Moreover, the stated purpose and intent of the Act

is to execute in Louisiana the policies embodied in the several

federal civil rights acts.35 A secondary purpose of the Act is

to justify deferral of cases by the federal Equal Employment

Opportunity Commission, U.S. Labor Department, and the U.S.
36 Id.

12

Justice Department.36 Whether the Louisiana Supreme Court

follows federal law or state case law under the closely related

Louisiana Handicapped Persons Act, we reach the same result:

plaintiff does not have a disability under the statute.

AFFIRM