1 The plaintiff’s correct last name is “Robison.” His name was

misspelled on the original complaint, however, so the case is

styled “Robinson.” UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-20888

WILLIAM ROBINSON,

Plaintiff - Appellee Cross-Appellant,

VERSUS

GLOBAL MARINE DRILLING COMPANY,

Defendant - Appellant Cross-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

November 25, 1996

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

William Robison, 1 a worker with asb estosis, filed this

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq

. (“ADA”),

case against his employer, Global Marine Drilling Company, claiming

that he was not rehired bec ause of his disability. While the

evidence shows that Robison had an impairment, the evidence is

insufficient to prove that his asbestosis substantially limited a

major life function. Thus Robison’s impairment does not rise to2

the level of a disability under the ADA. Accordingly, we reverse

the district court’s denial of judgment as a matter of law and

render a take-nothing judgment in favor of Global Marine.

BACKGROUND

William Robison worked for Global Marine for ten years as a

rig mechanic and rig engineer. In 1992 he was a rig engineer on

the Adriatic IV , a Global Marine drill ship working off the coast

of Sicily in the Mediterranean Sea. In August 1992, the Adriatic

IV lost its contract and, because there was no work available in

the Mediterranean, the rig was taken out of service and stacked.

Robison, along with most of the crew, was laid off when the rig was

stacked. Robison admits that his layoff was caused by economic

considerations and not by discrimination.

After the layoff, Robison’s name was placed on a list of

Global Marine employees eligible to be recalled. This list was

circulated throughout Global Marine’s fleet for review by rig

managers who had vacancies to fill on t heir rigs. Each Global

Marine rig manager had the authority to hire employees for the rigs

he supervised. All other crewmen of the Adriatic IV who had been

laid off were hired back. After the vessel was stacked, Global

Marine had 20-25 openings for which Robison was qualified.

Nonetheless, Robison was never hired back by Global Marine.

In 1986, Robison had been diagnosed with asbestosis, a

progressive and often fatal condition of the lungs. Robison was

“up front” about his diagnosis and always notified his tool pusher,3

who was his supervisor on the rig, about hi s condition. In

addition, his personnel file at Global Marine contained a reference

to his pulmonary problems. Due to his asbestosis, Robison’s lung

capacity was less than 50% of normal and he had shortness of breath

while climbing ladders on the Adriatic IV

.

Robison filed suit against Global Marine, alleging violations

of the ADA and the Age Discrimination in Employment Act, 29 U.S.C.

§ 621 et seq

. (“ADEA”). The jury found for Robison on his ADA

claim, but against him on his ADEA claim. The jury awarded him

$49,000 for back pay, $31,000 as liquidated damages and $50,000 for

punitive damages. Liquidated damages are not recoverable under the

ADA and the interrogatory concerning them was predicated on finding

liability under the ADEA. The district court, therefore,

disregarded the answer to that interrogatory and did not award the

$31,000 to the Robison. The district court also found that

punitive damages were not warranted and reduced Robison’s award by

$50,000.

Global Marine filed a motion for judgment as a matter of law

as to Robison’s ADA claim, which the district court denied.

DISCUSSION

In reviewing a denial of a motion for judgment as a matter of

law we employ:

[T] he same standards as the district court to

determine whether sufficient evidence exists to

support the jury verdict. . . . “If th e facts and

inferences point so strongly and overwhelmingly in

favor of one party that it would be unreasonable

for jurors to arrive at a contrary verdict,” the

motion for judgment should be granted.4

Leatherwood v. Houston Post Co

., 59 F.3d 533, 535-36 (5th Cir.

1995) (quoting Boeing Co. v. Shipman , 411 F.2d 365, 374 (5th Cir.

1969) (en banc)).

To establish a claim for discriminati on under the ADA, a

plaintiff must prove that : (1) he has a d isability; (2) he was

qualified for the job; and (3) an adverse employment decision was

made because of his disability. R izzo v. Children’s World Learning

Centers, I nc ., 84 F.3d 758, 763 (5th Cir. 1996). Global Marine

argues that Robison fails on the first prong of his case. While

Robison had asbestosis, Global Marine contends that he was not

disabled under the ADA and thus was not entitled to ADA protection.

A disability under the ADA is:

(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 impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). The EEOC’s regulations define “major life

activities” as “functions suc h as caring for oneself, performing

manual tasks, walking, seeing, hearing, speaking, breathing

,

learning, and working.” 2 9 C.F.R. § 1630.2(i) (emphasis added).

An individual is “substantially limit[ed]” if he is:

(i) unabl e to perform a major life activity that

the average person and 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 t he average person in the general

population can perform the same major life2 Robison also testified that his lung capacity was less than

50% of normal. While this may be evidence of an impairment, the

fact of a lower lung capacity is not eviden ce of a disability.

Other than the shortness of breath while climbing, Robison

intro duced no evidence purporting to show how this lower lung

capacity “significantly restricted [him] as to the cond i tion,

manner or duration under which [he could breathe] as compared to

the condition, manner, or duration under which the average person

i n the general population can [breathe].” 29 C.F.R. §

1630.2(j)(1)(ii).

5

activity.

29 C.F.R. § 1630.2(j)(1).

The evidence establishes that Robis on’s asbestosis was an

“impairment.” 29 C.F.R. § 1630.2(h)(1) (regulations define impairment as a physiological disorder or condi tion affecting, i nter

alia

, the respiratory system). Thus, the issue is whether his

impairment substantially limits a major life activity, thereby

becoming a disability. Ellison v. Software Spectrum, Inc

. , 85 F.3d

187, 189-90 (5th Cir. 1996).

The only problem Robison experienced from his asbestosis was

a few instances of shortness of breath while climbing stairs. 2 As

noted above, breathing is a major life activity, while “[c]limbing

is not such a basic, necessary function and this court does not

consider it to qualify as a major life acti vity under the ADA.”

Rogers v. Int’l Marine Terminals, Inc ., 87 F.3d 755, 758 n.2 (5th

Cir. 1996). Several instances of shortness of breath when climbing

stairs do not rise to the level of substantially limiting the major

life activity of breathing. It is important to note that Robison

offered no medical expert testimony. The only evidence regarding

his asbestosis and its effects came from the plaintiff himself.3 "Regarded as having such an impairment” means that the

individual:

(1) Has a physical or mental impairment that does

not substantially limit major life activities but

is treated by a covered entity as constituting such

limitation;

(2) Has a physical or mental impairment that

substantially limits major life activities only as

a result of the attitudes of ot hers toward such

impairment; or

(3) Has none of the impairments d efined in . . .

[29 C.F.R. § 1630(h)] but is treated by a covered

entity as having a substantially limiting

impairment.

29 C.F.R. § 1630.2(l)(1)-(3); Dutcher v. Ingalls Shipbuilding ; 53

F.3d 723, 727-28 n.19 (5th Cir. 1995).

6 Robison can also fall under the ADA’s protection if there is

evidence that he had a record of disability or was regarded as

disabled. 42 U.S.C. § 12102(2)(B) & (C). There was testimony at

trial that Robison told his supervisors of his asbestosis and that

the personnel file Global Marine kept on him noted his condition.

While these facts are evidence of a history of an impairment

, they

are not evidence of a history of a disability. There is no

evidence in t he record that Robison had a history of, or was

regarde d as, having an impairment which substantially limits a

major life function. 3

CONCLUSION

Robison is not disabled. He does have asbestosis, but that

impairment does not substantially limit his major life activity of

breathing. Because Robison failed to prove that he is disabled,

the evidence is insufficient to sustain the jury verdict on his ADA

claim. The district court erred in denying Global Marine’s motion4 Robison cross-appealed, arguing that the district court erred

in reversing the punitive damages award and in denying certain

costs. Because we find no liability, we need not consider the

punitive damages and costs issues.

7 for judgment as a matter of law on Robison’s ADA cause of action.

Accordingly, we REVERSE the judgment of the district court and

RENDER a take-nothing judgment in favor of Global Marine. 4