Filed: Apr. 26, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 26, 2006 Charles R. Fulbruge III Clerk No. 05-10316 TIMOTHY CURL, Plaintiff-Appellant, versus UNITED SUPERMARKETS, LTD., Defendant-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 5:04-CV-149-C - Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges. PER CURIAM:* Timothy Curl sued United Supermarkets in federal district court
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT April 26, 2006 Charles R. Fulbruge III Clerk No. 05-10316 TIMOTHY CURL, Plaintiff-Appellant, versus UNITED SUPERMARKETS, LTD., Defendant-Appellee. - Appeal from the United States District Court for the Northern District of Texas USDC No. 5:04-CV-149-C - Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges. PER CURIAM:* Timothy Curl sued United Supermarkets in federal district court,..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 26, 2006
Charles R. Fulbruge III
Clerk
No. 05-10316
TIMOTHY CURL,
Plaintiff-Appellant,
versus
UNITED SUPERMARKETS, LTD.,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:04-CV-149-C
--------------------
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:*
Timothy Curl sued United Supermarkets in federal district
court, arguing that United, in violation of the Americans with
Disabilities Act,2 fired him from his job as a doughnut fryer
because of his bipolar disorder. The district court granted
summary judgment to United, concluding that Curl failed to raise a
genuine issue of material fact that, inter alia, his disorder
*
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opinion should not be published and is not precedent except under the limited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.
2
See 42 U.S.C. §§ 12101 et seq.
substantially limited a major life activity, including working.
Curl appeals, and we review de novo.3
Under the ADA, Curl must show, inter alia, that he had a
“disability,” defined as “a physical or mental impairment that
substantially limits one or more of the major life activities of
such individual....”4 Emotional or mental illness can be a “mental
impairment.”5 Major life activities include “functions such as
caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working,”6 and
“substantially limited” means “(i) [u]nable to perform a major life
activity that the average person in the general population can
perform; or (ii) [s]ignificantly restricted as to the condition,
manner or duration under which an individual can perform a
particular major life activity as compared to...the average person
in the general population....”7 Regarding the major life activity
of working, the term “substantially limited” means
significantly restricted in the ability to perform either
a class of jobs or a broad range of jobs in various
3
See McAvey v. Lee, 260 F.3d 359, 363 (5th Cir. 2001).
4
42 U.S.C. §§ 12102(2)(A); Talk v. Delta Airlines, Inc., 165 F.3d 1021,
1024 (5th Cir. 1999). Curl does not allege the other two ways to show a
disability.
5
29 C.F.R. § 1630.2(h)(2).
6
Id. § 1630.2(i).
7
Id. § 1630.2(j)(1). In determining whether a person is substantially
limited in a major life activity, we consider the nature, severity, duration,
and effects of the impairment.
Id. § 1630.2(j)(2).
2
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 on the major life activity of
working.8
Factors to consider when determining whether someone is
substantially limited in working include
(A) The geographical area to which the individual has
reasonable access;
(B) The job from which the individual has been
disqualified..., and the number and types of jobs
utilizing similar training, knowledge, skills 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..., and the number and types of other jobs
not 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).9
Even assuming that Curl had an “impairment” affecting his
claimed “substantial life activities” of, inter alia, “sleeping,
concentrating, interacting with crowds of people, thinking, [and]
hearing,” he has not shown a genuine issue of material fact that he
was “substantially limited” in those activities.10 His primary
evidence consists of bald assertions based on textbook explications
of the types of symptoms people with his impairment might
8
Id. § 1630.2(j)(3)(i).
9
Id. § 1630.2(j)(3)(ii).
10
Citing Bragdon v. Abbott, 524 U.S. 624 (1998) and Sutton v. United
Air Lines, Inc.,
527 U.S. 471 (1999), Curls argues that “substantially
limited” is a fact question, inappropriately decided on summary judgment. Of
course, courts often decide fact questions on summary judgment - when there is
no genuine issue as to them.
3
experience, failing to show Curl’s own symptoms - his own “own
experience” of substantial limitation.11 Furthermore, that Curl was
able to care for himself, complete a degree program, and work other
jobs despite his impairment, and his testimony that his condition
“hasn’t affect any abilities,” belie his conclusory testimony
regarding his symptoms.12
Curl also argues that his impairment limited his major life
activity of working because he could not work night shifts.
Because he did not present this issue to the district court, it is
waived.13 And even if we were to consider it, he has not raised a
genuine issue of material fact. He points only to Department of
Labor statistics showing that over four million positions in
various industries involve night shifts, allegedly showing he is
“unable to perform a broad range of jobs in numerous industries.”
Not only are these statistics too broad because not limited to
Curl’s specific geographic area or people with “comparable
training, skills, or abilities,” but Curl’s inability to perform a
11
See Waldrip v. Gen. Elec. Co., 325 F.3d 652, 656 (5th Cir. 2003); 29
C.F.R. § 1630.2(j).
12
See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th
Cir. 1996) (en banc). Moreover, as the district court noted, that testimony
referred to problems he was having before resigning from United the first
time, rendering it irrelevant here. Curl concedes this, arguing instead that
United has not produced any evidence showing that Curl no longer suffers from
the same problems. This misplaces the burden of proof, for a plaintiff to
survive summary judgment must proffer facts sufficient to support the claim.
Only then does the non-movant have the burden to come forward with specific
facts in rebuttal.
13
See Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir.
1994).
4
job at certain times - as opposed to an inability to perform the
job in general - is an insufficient “inability to perform one
aspect of a job while retaining the ability to perform the work in
general....”14 Indeed, Curl concedes that he could perform the work
of a doughnut fryer during the day and that he held daytime bakery
and sales positions after leaving United. Curl was not unable to
work a “broad range of jobs in various classes,” he was only unable
to work any job at a range of times.
For the foregoing reasons, we AFFIRM the judgment of the
district court.
14
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995)
(holding that plaintiff’s inability to perform welding job requiring climbing
due to her injured arm was insufficient because she could work as a welder in
general).
5
