* Pursuant to 5 TH C IR

. 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should not be published and is not precedent except under the limited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 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 18, 1997

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 97-50194

Summary Calender

_______________

VERNON G. JOHNSON,

Plaintiff-Appellant,

VERSUS

BAYLOR UNIVERSITY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(W-96-CV-242)

_________________________ September 18, 1997

Before JOLLY, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge: *

Vernon Johnson appeals a summary judgment in favor of Baylor

University on employment discrimination claims under the Americans

with Disabilities Act (“ADA”) and the Rehabilitation Act. Finding

no error, we affirm.2 I.

Baylor’s former president, Herbert Reynolds, hired Johnson to

be the university’s chief pilot beginning the first day of 1992.

In that position, Johnson was responsible for shuttling Reynolds

and other university VIP's on the university’s airplane. When

hired, Johnson weighed approximately 275 pounds. His weight was a

source of irritation to Reynolds, who insisted that Johnson lose

weight. In fact, Reynolds made the continuation of Johnson’s

employment conditional on losing over one hundred pounds during the

first ninety days of employment.

Not surprisingly, Johnson was unable to lose so much weight in

so little time. Reynolds, however, did not terminate Johnson at

the end of the first ninety days. Instead, Reynolds repeatedly

made Johnso n and the relevant university officials aware of

Johnson’s expertise as a pilot, while at the same time pressing him

to lose weight, to improve his appearance at work (such as tucking

in his shirt tail and remembering to wear a suit jacket on the

airplane), and to correct his grammatically flawed parlance.

Reynolds noted that Johnson’s position put him in contact with

many important university benefactors and therefo re required a

certain comeliness on Johnson’s part that might not otherwise be

required. Moreover, Reynolds expressed concern that Johnson’s

weight made him a health risk, so he continued to prod Johnson to

lose weight in order to help to reduce the university’s health

insurance costs.1 Subject matter jurisdiction based on 28 U.S.C. §§ 1331, 1343.

2 The relevant portion of the Rehabilitation Act provides: “No otherwise

qualified individual with a disability . . . shall, solely by reason of her or

his disability, be excluded from the participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity receiving Federal

financial assistance

. . . .” 29 U.S.C. § 794(a). Furthermore, and relevant for

purposes of this case: “The standards used to determine whether this section has

been violated in a complaint alleging empl o yment discrimination under this

section shall be the standards applied under title I of the Americans with

Disabilities Act of 1990

. . . .” I d. § 794(d). Accordingly, the ensuing

discussion in the text of the ADA’s disability requirement should be treated as

encompassing the disability requirement under the Rehabilitation Act as well.

3 Consequently, Reynolds warned Johnson that failure to correct

these problems put Johnson’s position at Baylor in jeopardy. In

August 1994, Reynolds fired Johnson, noting a substantial failure

to ameliorate the problems noted above.

II.

Johnson sued Baylor, 1 an institution receiving federal funds,

claiming that his termination violated the ADA, 42 U.S.C.

§ 12112(a) (prohibiting discrimination against the disabled in the

workplace), and a substan tially similar provision of the

Rehabilitation Act, 29 U.S.C. § 794 (prohibiting ins t itutions

receiving federal funds from discriminating against the disabled). 2

Johnson based his statutorily required showing of a disability on

a th eory that Baylor, through Reynolds, regarded him as being

unemployable because of his weight and that this perception led to

his termination. Johnson alleged only a “regarded as” claim and

has never asserted that his weight was in fact a disability.

Baylor contended that Johnson had failed to present sufficient4

evidence that Reynolds regarded him as being substantially impaired

from participating in a major life activity, as required by the ADA

to show a disability. Because a plaintiff must show a disability

in order to proceed under the ADA, Baylor accordingly moved for

summary judgment.

The district court agreed with Baylor, finding t hat Johnson

had failed to offer sufficient evid ence that Reynolds regarded

Johnson’s weight as substantially interfering with the only major

life activity at issue SS “working.” Because Johnson could not make

a showing that he was disabled under the ADA, the court granted

summary judgment.

III.

We review a summary judgment de novo. S ee Hanks v.

Transcontinental Gas Pipe Line Corp. , 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, an d admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” F E D

. R. C IV

. P. 56(c). The

party seeking summary judgment carries the burden of demonstrating

that there is an absence of evidence to support the non-moving

party’s ca se. S ee Celotex Corp. v. Catrett

, 477 U.S. 317, 325

(1986). After a proper motion for summary judgment is made, the3 No one denies that Baylor is a “covered entity” under the ADA or the

Rehabilitation Act.

5 non-movant must set forth specific facts showing that there is a

genuine issue for trial. See Hanks , 953 F.2d at 997.

We begin our determination by co nsulting the applicable

sub stantive law to determine what facts and issues are material.

See King v. Chide , 974 F.2d 653, 655-56 (5th Cir. 1992). We then

review the evidence relating to those issues, viewing the facts and

inferences in the light most favorable to the non-movant. S ee id.

If the non-movant sets forth sp ecific facts in support of

allegations essential to his claim, a genuine issue is presented.

See Celotex

, 477 U.S. at 327; Brothers v. Klevenhagen

, 28 F.3d 452,

455 (5th Cir. 1994).

IV.

In order to understand Johnson's evidentiary burden better, we

first review the ADA’s mandate: “No covered entity shall

discriminate against a qualified individual with a disabi l ity

because of the disability of such individual in regard to job

application procedures, the hirin g, advancement, or discharge of

employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). 3

Therefore, a plaintiff is obliged to make an initial showing that4 A plaintiff can prove discrimination under the ADA either directly or

indirectly. Directly, he must show that he is disabled under the act; that with

or without reasonable accommodation he could perform the job; a n d that the

employer discharged him because of his disability. S ee 42 U.S.C. § 12112(a);

Taylor v. Principal Fin. Group, Inc.

, 93 F.3d 155, 162 (5th Cir.), cert. denied

, 117 S. Ct. 586 (1996).

Alternately, he can use a burden-shifting analysis to make out a p rima

facie case of discrimination. S ee, e.g.

, McDonnell Douglas Corp. v. Green

,

411 U.S. 792, 802 (1973)

. To do so, he must show that he is disabled under the

act; that he is qualified with or without accommodation; that he was subject to

an adverse employment action; and finally, that he was replaced with a nondisabled person. S ee id; Burch v. Coca-Cola Co.

, No. 95-10990, 1997 WL 425943,

at *13 (5th Cir. July 30, 1997); Daigle v. Liberty Life Ins. Co. , 70 F.3d 394,

396 (5th Cir. 1995). Both methods, however, require that the plaintiff make an

initial showing that he is “disabled,” as statutorily defined.

6 he has a “disability” in order to invoke the ADA’s protections. 4

The ADA defines a “disability” as follows:

The t erm “disability” means, with respect to an

individual SS

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an

impairment.

42 U .S.C. § 12102(2). Johnson alleges that he is disabled under

§ 12102(2)(C): that Baylor regarded him as having a physical

impairment SS obesity SS that substantially limi ts his major life

activity of “working,” as defined by EEOC regulation. S ee 29

C.F.R. § 1630.2(i) (“ Major Life Activities means functions such as

caring f o r oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.”).

The EEOC regulations strictly construe “substantially limits7

the major life activity of working.” Specifically, the regulations

provide:

(3) With respect to the major life activity of working SS

(i) The term substantially limits means

significantly restricted in the ability to perform

either a class of jobs or a broad range of jobs in

v arious classes as compared to the average person

having comparable training, skills, and abilities.

The inabi lity to perform a single, particular job

does not constitute a substantial limitation in the

major life activity of working.

(ii) In addition

. . ., the following factors may

be considered in determining whether an individual

is substantially limited in the major life activity

of “working”:

(A) The geographical area to which the

individual has reasonable access;

(B) The job from which the individual has

been disqualified because of an impairment,

and the number and types o f jobs utilizing

similar training, knowledge, skill or

abilities, within that geographical area, from

which the individual is also disqualified

because of the impairment (class of jobs);

and/or

(C) The job from which the individual has

been disqualified because of an impairment,

a nd the number and types of other jobs no t

utilizing similar training, knowledge, skills

or abilities, within that geographical area,

from which the individual is also disqualified

because of the impairment (broad range of jobs

in various classes).

29 C.F.R. § 1630.2(j)(3).

Although what “substantially limits [the] major life activity

[of working]” ultimately means is determined on a case -by-case

basis, see Byrne v. Board of Educ.

, 979 F.2d 560, 565 (7th Cir.8

1992); Forri si v. Bowen , 794 F.2d 931, 933 (4th Cir. 1986), the

statutory language plainly does not prevent all adverse employment

actions against a physically- or mentally-impaired employee. Thus,

such an employee does not obtain tenure at his position because of

his impairment. S ee Ellison v. Software Spectrum, Inc.

, 85 F.3d

187, 192 (5th Cir. 1996); 29 C.F.R. § 1630.2(j)(3)(i). Instead,

the “substantially limits” statutory language, as it relates to

“working,” strikes a balance: It allows a disabled person a foot

in the door of the labor market, see Burch

, 1997 WL 425943, at *6,

while at the same time, it tries not to impose an undue burden on

an employer’s freedom to make employment decisions he feels are in

the best interests of his business, see Tudyman v. United Airlines

,

608 F. Supp. 739, 747 (C.D. Cal. 1984) (“[P]rivate employers are

generally free to be arbitrary and even capricious in determining

whom to hire . . . .”).

Johnson contends that Baylor perceived that his obesity

substantially limited his major life activity of working.

Therefore, once Baylor moved for summary judgment asserting that

Johnson lacked the evidence necessary to go forward with a trial,

Johnson, in order to defeat summary judgment, was obliged to offer

enough evidence to show that th ere was a genuine fact issue that

Baylor regarded Johnson's obesity as substantially lim iting his

major life activity of working. C f. Hanks

, 953 F.2d at 997. More

specifically, Johnson would have to offer some evidence that Baylor9

believed (1) that Johnson could not obtain a position in the

geographical area because of his obesity; (2) that Johnson could

not obtain a job in the class of jobs utilizing similar skills and

training SS

he re, as a pilot SS because of his obesity; or (3) that

Johnson was unable to obtain a job, in the same geographical area,

that did not utilize the same skill s or training, but for which

Johnson's obe sity also disqualified him. C f. 29 C.F.R.

§ 1630(j)(3)(ii)(A)-(C).

Johnson contends that requiring evidence of the factors

mentioned above, which are taken verbatim from the EEOC’s

regulations, see 29 C.F.R. § 1630. 2(j)(3)(ii), requires him to

prove that no other employer in the relevant geographical or skill

class areas would hire him. Not so. The “regarded as,” or

“perception,” prong of the “disability” definition requires that a

pl aintiff provide evidence that the e mployer thought that other

employers would not hire him because of his obesity. S ee 42 U.S.C.

§ 12102(2)(C).

Johnson casually addresses this evidentiary requirement and

only with vague accusations. In no instance does any part of the

record, including the pleadings, the briefs, the depositions, the

exhibits, and the other record contents, provide more than general

assertions about Baylor’s perceptions of Johnson’s general

employability. Yet, such evidence lies at the heart of Johnson’s

required showing that he is “d isabled,” s ee 42 U.S.C. §10

12102(2)(C), and is thus necessary to prevent summary judgment.

A review of the evidence, through the three factors outlined

in 29 C.F.R. § 1630.2(j)(3)(ii), reveals insufficient evidence to

prevent summary judgment. First, Johnson's deposition and

Reynolds’s affidavit show conclusively that Reynolds regarded

Johnson as a skilled pilot. Both parties acknowledge that Reynolds

did not believe Johnson was unable to work in the class of pilot

jobs because of his weight.

Second, Johnson offers no evidence th at Baylor thought his

weight made him unemployable in the Waco area labor market or

elsewhere, and thus Reynolds’s affidavit to the contrary stands

unopposed. Finally, Johnson offers no evidence to contradict

Baylor’s affidavit that Baylor believed Johnson could obtain work

in another class of jobs, such as airplane maintenance.

V.

We comment now on two of Johnson’s other contentions. First,

Reynolds’s belief that Johnson could not get “a job at Baylor” or

“a job in public relations” there or elsewhere is not sufficient to

meet the “substantially limiting . . . working” requirement

outlined above. S ee, e.g.

, Bridges v. City of Bossie r , 92 F.3d

329, 332-34 (5th Cir. 1996), cert. denied , 117 S. Ct. 770 (1997).

Such a construction of “working” would read “substantially” right

out of the “substantially limits” language of § 12102(2); it would5 See Heilweil v. Mount Sinai Hosp.

, 32 F.2d 718, 723 (2d Cir. 1994), cert.

d enied

, 513 U.S. 1147 (1995); 12 C.F.R. § 1630.2(j )(3)(i) (“The inability to perform

a single, particular job does not constitute a substantial limitation in the major

life activity of working.”).

6 See 29 C.F.R. § 1630(l) app. (“[C ]ommon attitudinal barriers . . .

frequently result in employers excluding individuals with disabilities. These

include concerns regarding . . . insurance . . . .”).

11 force an employer to guarantee an employee a specific position.

Such a result would run contrary to the ADA’s intentions. 5

Second, an employer’s concern with a plaintiff’s insurability

could, as Johnson notes, provide indirect evidence of the

employer’s belief of the employee’s general unemployability. 6

Thus, such evidence could help to meet the “regarded as” prong that

a plaintiff is disabled. See 42 U.S.C. § 12102(2)(C).

From the record in this case, however, Johnson has offered no

evidence to raise a genuine issue of material fact that Reynolds’s

c oncern about insurance costs resulted in Johnson’s termination

.

Alth ough Reynolds was concerned that overweight people get sick

more often, and thus increase the costs of health insurance,

Johnson offers no evidence to overcome Baylor’s sworn assertions

that appearance standards, not insurance costs, led to his

termination.

Nor does Johnson offer any evidence that his health insurance

costs led Baylor to perceive him as gene rally unemployable.

Indeed, Johnson ’s own discovery revealed that Reynolds, although

worried about health insurance costs of portly people, kn owingly

embraced the university’s employment (and presumably also its12

health insurance coverage) of at least two other overweight

individuals.

VI.

The fact of the matter is that this single, particular job

carried with it certain appearance standards. C f. Tudyman

,

608 F. Supp. at 745 (upholding an airline’s weight limit for flight

attendants). When Johnson failed to meet these standards, he was

terminated. There is no error, and the judgment, accordingly, is

AFFIRMED.