     Case: 10-20620 Document: 00511497437 Page: 1 Date Filed: 06/03/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          June 3, 2011
                                    No. 10-20620
                                  Summary Calendar                       Lyle W. Cayce
                                                                              Clerk

RICHARD HODGES,

                                                 Plaintiff-Appellant,

v.

ISP TECHNOLOGIES, INCORPORATED, Incorrectly Identified as ISP
Texas City,

                                                 Defendant-Appellee.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:08-CV-962


Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:*
       The plaintiff-appellant Richard Hodges appeals from the district court’s
dismissal of his Americans with Disabilities Act (ADA) claim for failure to
establish that he was disabled under the Act. We AFFIRM.
                                            I.
       In 1994, Hodges was seriously injured in an industrial accident that left
him with thirty-four percent whole body impairment, including limited range


       *
        Pursuant to the 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not be published and is not precedent except under the limited circumstances set forth in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.
    Case: 10-20620 Document: 00511497437 Page: 2 Date Filed: 06/03/2011




                                 No. 10-20620

and motion of his left elbow and wrist and lost grip strength of his right hand.
Since the accident, and before beginning work at the defendant-appellee ISP
Technologies Inc. (ISP), Hodges held a series of physically demanding jobs. Two
years after the accident, Hodges began working as a maintenance planner and
electrical technician.   Hodges then worked for some time as an electrical
technician. He was also employed as a production technician operator. Hodges
never required, or requested, accommodations to help him perform those difficult
jobs over the years.
      In 2006, Hodges began working for ISP as a production technician, a job
similar to those he had held previously. Hodges informed ISP in writing of his
impairment at orientation, but admitted in conversation with human resources
that the impairment “had never caused [him] any problems . . . associated to
[his] jobs.” The production technician job required “walking, bending, reaching
and climbing to perform basic duties; bending and stooping while checking
pumps, valves, and motors; moving pallets of drums with a hand truck; filling,
shoving, and sealing drums of copolymer and solvents up to 550 pounds each;
maneuvering and rolling the 550-pound drums; climbing on and off a tow motor;
and climbing storage tanks and a tank wagon loading rack.”
      During his first week at ISP, Hodges reported to his foreman, Eloi Huerta,
that he had some discomfort in his left elbow. The discomfort allegedly arose
from the repetitive motions at the filling and lidding stations in the drum
assembly room. Hodges maintained that he could do his job, but not without
some discomfort. Huerta assured Hodges that he was doing a good job and was
not a “weak link.” Hodges did not ask for any assistance from Huerta.
      Hodges spoke with his union representative about his difficulties. He also


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                                 No. 10-20620

met with ISP’s safety supervisor, who suggested that Hodges use a platform as
an accommodation. However, Hodges said he had tried everything and felt this
accommodation would not work. Hodges said he would continue working as
production technician, but he was certain the discomfort would continue.
      Hodges then met with Brian Johnson, a maintenance supervisor, and ISP’s
human resource supervisor about a “generalist” position Huerta mentioned as
a possible alternative.    The generalist position had many of the same
requirements as the production technician: “walking, bending, reaching, and
climbing; moving pallets of drums with a hand truck; the ability to lift 100
pounds; filling, shoving, and sealing drums of up to 550 pounds each; and
maneuvering and rolling drums of up to 550 pounds.” Johnson advised Hodges
of the similarities between the two positions and told him that it probably would
not solve Hodges’s problems. Hodges told Johnson that he could still perform
the duties of the generalist position, but because the generalist position was no
longer available, told Johnson, “I understand if you don’t have another spot for
me I’ll just go on down the road.”
      In his deposition, Johnson testified he believed that Hodges had quit.
Hodges testified that he did not want to end his employment with ISP, but he
believed he had been fired. Hodges never signed termination papers with ISP.
Also, ISP never contacted Hodges after that last meeting with Johnson. Hodges
took another similar job two months later, and after leaving that job returned
to work for a previous employer—in a job similar to his job at ISP—within the
next year.
      In March 2008, Hodges filed this disability discrimination case against
ISP, alleging violations of the ADA. 42 U.S.C. § 12131 et seq. ISP moved for


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summary judgment, asserting that Hodges does not qualify as an individual with
a disability under the ADA.         The district court granted ISP’s motion for
summary judgment. The court first examined the threshold question of whether
Hodges could show that he had a disability under ADA. The court determined
that because Hodges was not limited from working a “broad range” of jobs,
Hodges was not limited in the major life activity of work.             As a result, the
district court decided that Hodges could not establish that he was disabled under
any of the prongs of the ADA disability test. Hodges filed this appeal, disputing
the district court’s finding that he failed to raise a genuine issue of material fact
as to whether he was disabled under the terms of the ADA.
                                  II. DISCUSSION
      This court reviews a district court’s grant of summary judgment de novo.
Quality Infusion Care, Inc. v. Health Care Serv. Corp., 628 F.3d 725, 728 (5th
Cir. 2010). Summary judgment is appropriate when “there is no genuine issue
as to any material fact and the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The facts and evidence must be taken in the light
most favorable to the non-moving party.         Holt v. State Farm Fire & Cas. Co.,
627 F.3d 188, 191 (5th Cir. 2010).1
      On appeal, Hodges disputes the district court’s decision that he failed to
meet the threshold requirement of showing that he is disabled under the terms
of the ADA. See Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 758 (5th Cir.
1996).    Specifically, he asserts that he is disabled because he is substantially
limited in the major life activity of working. In the alternative, he asserts



      1
         Although the parties dispute whether Hodges was fired from his job or whether he
quit, that dispute is not material to the resolution of this appeal.

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that—whether or not he was actually disabled—ISP regarded him as disabled,
and therefore improperly discriminated against him.
       To bring a claim under the ADA, Hodges must establish that “(1) he is
disabled within the meaning of the ADA, (2) he is qualified and able to perform
the essential functions of his job, and (3) his employer fired him because of his
disability.” Kemp v. Holder, 610 F.3d 231, 235 (5th Cir. 2010).2 Any analysis of
an ADA claim begins with a determination of whether the plaintiff is disabled.
Sutton v. United Air Lines, 527 U.S. 471, 481 (1999). The ADA defines disability
as “(A) a physical or mental impairment that substantially limits one or more
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(1).
       “[W]hether a person has a disability under the ADA is an individualized
inquiry.” Sutton, 527 U.S. at 483. However, “[m]erely having an impairment
does not make one disabled . . . .” Toyota Motor Mfg., Ky., Inc. v. Williams, 534
U.S. 184, 195 (2002). The impairment must “substantially limit” a major life
activity.   Id.   “When the major life activity under consideration is that of
working, the statutory phrase ‘substantially limits’ requires, at a minimum, that
plaintiffs allege they are unable to work in a broad class of jobs.” Sutton, 527


       2
          Hodges contends that the district court improperly applied old law. In 2008,
Congress passed the Americans with Disabilities Act Amendments Act (ADAAA). This Act
effectively superceded the Supreme Court’s narrow construction of “disability” set forth in
Sutton and subsequent cases. Hodges argues that the ADAAA should apply retroactively
to his case. However, this court has found “that Congress [did not intend] the ADAAA to
apply retroactively.” Carmona v. Sw. Airlines Co., 604 F.3d 848, 857 (5th Cir. 2010).
Hodges’s Complaint was filed almost a year before the ADAAA became effective.
Accordingly, this court is bound to follow Sutton and its companion cases and to apply the
pre-ADAAA definition of “disability.” Hodges’s contention is therefore without merit. See
Kemp v. Holder, 610 F.3d 231, 235 (5th Cir. 2010). In any event, Hodges does not explain
why adopting the new interpretation of disability—which in part makes it easier to bring
cases arising from episodic disability—would make any difference to his case.

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U.S. at 491. “The inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.” Id. at 491; see also
Bridges v. City of Bossier, 92 F.3d 329, 334 (5th Cir. 1996) (holding that a broad
class or range “implies more than two job types.”)
      Here, there is nothing in the record to show that Hodges is excluded from
a broad class of jobs and therefore substantially limited in the major life activity
of work. As the district court observed, Hodges has taken many jobs that are
similar to his job at ISP, including production technician operator, shift
electrician, maintenance planner, instrument electrician, and electrical
technician. The fact that he can work all those jobs precludes a finding that
Hodges is disabled in the major life activity of working or has a record of such
impairment for the purposes of the ADA. See 42 U.S.C. § 12102(1)(A), (B). Nor
can Hodges point to anything in the record to show that he is excluded from a
broad range of jobs.
      Hodges’s alternative contention that the district court erred in deciding
that he was not “regarded as” disabled under the ADA fails for similar reasons.
See 42 U.S.C. § 12102(1)(C). An individual is “regarded as” disabled when either
“(1) a covered entity mistakenly believes that a person has a physical
impairment that substantially limits one or more major life activities, or (2) a
covered entity mistakenly believes that an actual, nonlimiting impairment
substantially limits one or more major life activities.” Sutton, 527 U.S. at 489.
Thus, to prevail, Hodges must show that his employer mistakenly regarded him
as “[u]nable to perform a major life activity that the average person in the
general population can perform.” Kemp, 610 F.3d at 237 (internal quotations
omitted). Hodges asserts that ISP improperly believed he was substantially
limited in the major life activity of working. The record, however, does not

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support Hodges’s assertion that ISP regarded him as “substantially limited” in
his ability to work in a broad range of jobs, as required by our precedent. Even
assuming that ISP actually believed Hodges incapable of working as either a
production technician or a generalist, the most Hodges can point to in the record
is that ISP believed him unable to perform one kind of job involving arduous
lifting. That is not sufficient to support a disability claim under the ADA’s
“regarded as.” See Ray v. Glidden Co., 85 F.3d 227, 229-30 (5th Cir. 1996)
(holding that restrictions on heavy lifting did not establish a record of disability
or “regarded as” disability because the inability to perform heavy lifting did not
render the employee substantially limited in the major activities of lifting or
working); cf. EEOC v. E.I. Du Pont de Nemours & Co., 480 F.3d 724, 730 (5th
Cir. 2007) (finding disability under the “regarded as” test where the defendant
mistakenly believed the plaintiff was unable to walk, and was therefore limited
from all jobs at the defendant’s factory).
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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