[PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT                            FILED
                                                                       U.S. COURT OF APPEALS
                                  -----------------------                ELEVENTH CIRCUIT
                                                                             MAR 14 2000
                                      No. 98-6982
                                                                          THOMAS K. KAHN
                                  -----------------------                      CLERK
                        D. C. Docket No. 96-02462-CV-ARM-M

WILLIAM BRUCE REED,

                                                                    Plaintiff-Appellant,

       versus

THE HEIL COMPANY,

                                                                    Defendant-Appellee.


                                  ------------------------
                      Appeal from the United States District Court
                         for the Northern District of Alabama
                                 -------------------------

                                      (March 14, 2000)


Before DUBINA, Circuit Judge, KRAVITCH, Senior Circuit Judge, and
NESBITT*, Senior District Judge.


KRAVITCH, Senior Circuit Judge:



   *
      Honorable Lenore C. Nesbitt, Senior U.S. District Judge for the Southern District of Florida,
sitting by designation.
        This appeal involves the limits on federal jurisdiction imposed by 28 U.S.C.

§ 1445(c)1 and the proper interpretation of the Americans with Disabilities Act

(ADA), 42 U.S.C. §§ 12101-12213 (1999). Plaintiff-Appellant Reed suffered a

back injury while working at the Heil Company (Heil), the Defendant and

Appellee. During the ensuing two years Reed performed light duty work, but Heil

then terminated his employment. Reed brought suit in Alabama state court

alleging that his termination constituted a breach of contract and violated both an

Alabama statute barring retaliation against employees who file workers’

compensation claims, see Ala. Code § 25-5-11.1, and the ADA. Heil removed the

case to federal court, which granted summary judgment for the Defendant-

Appellee on all claims. Reed appeals the grant of summary judgment for Heil on

the retaliatory discharge and ADA claims.

        A federal statute, 28 U.S.C. § 1445(c), bars the removal to federal court of

claims arising under state workers’ compensation laws. Because we conclude that

claims brought pursuant to Alabama’s statute barring retaliation for the filing of

workers’ compensation claims do arise under that state’s workers’ compensation

laws, the district court lacked jurisdiction to entertain Reed’s retaliatory discharge



    1
    28 U.S.C. § 1445(c) states: “A civil action in any State court arising under the workmen’s
compensation laws of such State may not be removed to any district court of the United States.”

                                              2
claim. Reed’s ADA claim, however, was properly before the district court.

Summary judgment for the defendant on this claim was appropriate because Reed

did not establish one of the elements of a prima facie case under the ADA, namely

that he was a “qualified individual,” able to perform the essential tasks of any

available job at Heil with or without reasonable accommodation.



                                 I. BACKGROUND

      Reed began work as a welder at Heil, a garbage truck manufacturer, in May

1993. Reed’s job involved heavy lifting and a wide range of bodily motion, such

as frequent crouching, reaching, and bending. In July 1993 Reed was injured

carrying a seventy-five pound sheet of steel.

      Dr. Decker, the company doctor, initially advised Reed that he would have

to limit himself to light duty until further notice, and he notified Heil that Reed

should avoid repetitive motion, stretching, and heavy lifting. In September 1993,

Dr. Decker reiterated that Reed should avoid repetitive motion, stretching, and

lifting more than fifty pounds. Two neurosurgeons, Drs. Hrynkiw and Denton,

diagnosed a pars defect and spondylolysis, abnormalities of the vertebrae. Dr.

Denton determined that Reed should not perform heavy manual labor. Dr.

Hrynkiw formally assessed Reed as having a five-percent permanent disability and


                                           3
also restricted Reed to work requiring light or medium levels of physical exertion

with no bending or twisting, and no standing or sitting for lengthy periods of time.



      For almost two years, Heil gave Reed work through a “light duty” program

designed to accommodate employees recovering from injury. For the first nine

months, Reed ran errands and did a variety of office work. Beginning in May

1994, Reed worked in the pre-delivery department. He inspected truck chassis, did

paper work, and assisted the one permanent, non-supervisory employee in the pre-

delivery department. That employee greased the numerous fittings on the garbage

trucks, cleaned the trucks, and then moved them out of the department. Reed could

not do some of the work this job entailed because it required climbing into, on top

of, and underneath the trucks, and greasing fittings in hard to reach places.

      At the end of May 1995, Heil eliminated the light duty program and

terminated Reed. Heil claims it eliminated the light duty program because there

was not enough work for participants and because some injured employees were

permanently unable to return to their former jobs.

      Heil claims to have evaluated the physical requirements for every position at

the factory and further asserts that Reed’s physical restrictions rendered him

unqualified for any of the vacancies that arose the year after his termination. Reed


                                          4
believes that he can perform a number of office jobs at Heil, as well as jobs on the

factory floor and in the pre-delivery department, perhaps even his previous

welding position. Reed was never medically cleared to return to his previous

duties, however, and he was still on light duty when laid off in 1995.

      In June 1995, Reed filed for workers’ compensation benefits. In September

1996 he filed a complaint against Heil in state court, alleging a violation of the

ADA and state law claims, including retaliatory discharge in violation of Alabama

Code § 25-5-11.1. Heil removed the case to federal court on the basis of subject

matter jurisdiction over the ADA claim and possibly diversity of citizenship as

well. Reed tried unsuccessfully to have the case remanded to state court. The

district court, adopting a magistrate judge’s findings and recommendations,

granted summary judgment to the defendant on all claims.



                                  II. DISCUSSION

      Reed challenges the district court’s disposition of both his retaliatory

discharge and ADA claims. First, Reed argues the district court lacked jurisdiction

over his retaliatory discharge claim because it falls within the ambit of 28 U.S.C. §

1445(c), a federal statute that bars the removal of claims arising under state

workers’ compensation laws. Second, he challenges the district court’s


                                           5
interpretation of the requirement under Alabama law that the plaintiff be willing

and able to return to work in order to make out a retaliatory discharge claim.

Finally, Reed claims that he is disabled within the meaning of the ADA and that he

presented enough evidence of his ability to perform several jobs at Heil to reach a

jury.



A. The Retaliatory Discharge Claim

        Reed argues the federal courts do not have subject matter jurisdiction to

consider his claim that Heil discharged him in retaliation for filing a workers’

compensation claim. Reed filed suit in the Circuit Court of DeKalb County,

Alabama, but Heil removed the case to federal court. Defendants can remove civil

actions over which the federal courts would have had original jurisdiction. See 28

U.S.C. § 1441(a). The federal district court would have had original jurisdiction

over Reed’s ADA claim because it arose under federal law. See 28 U.S.C. § 1331.

In addition, federal courts can exercise supplemental jurisdiction over state law

claims that form part of the same case or controversy as the claim with original

federal jurisdiction. See 28 U.S.C. § 1367(a); see also 28 U.S.C. § 1441(c).

        A few actions, however, cannot be removed from state to federal court.

Specifically, 28 U.S.C. § 1445(c) bars the removal of claims from state court


                                           6
“arising under the workmen’s compensation laws” of the forum state. Thus, we

must decide whether Reed’s retaliatory discharge claim, brought pursuant to

section 25-5-11.1 of the Alabama Code, “arises under the workmen’s

compensation laws” for the purposes of section 1445(c). This question has divided

the district courts of Alabama,2 but it is a matter of first impression for this circuit.

       Alabama’s proscription of retaliatory discharges is codified as part of its

workers’ compensation provisions. See generally Ala. Code. § 25-5 (1999).

Alabama courts have construed a general release of claims related to a workplace

injury to bar a subsequent retaliatory discharge action. See Ex parte Aratex Servs.,

Inc., 

, 369 (Ala. 1993). The Alabama Supreme Court has described

the purpose of section 25-5-11.1 as to ensure that employees are “able to exercise

[their] right to be compensated for work-related injuries in an unfettered fashion

without being subject to reprisal.” McClain v. Birmingham Coca-Cola Bottling

Co., 

, 1301 (Ala. 1991). This, the court reasoned, was necessary

“[i]n order for the beneficent goals of the worker’s compensation chapter to be

realized.” 

threat of losing one’s job would discourage workers

from filing injury compensation claims. See 

e.g., Roberts v. Beaulieu of Am., Inc., 

(N.D. Ala. 1996) (section
25-5-11.1 actions arise under Alabama’s workers’ compensation laws for section 1445(c) purposes),
with Moreland v. Gold Kist, Inc. 

(N.D. Ala. 1995) (section 25-5-11.1 actions do
not arise under Alabama’s workers’ compensation laws for section 1445(c) purposes).

                                               7
      Understanding the Alabama legislature’s intentions and the state court’s

treatment of the retaliatory discharge cause of action is helpful; the Alabama courts

and legislature, however, cannot decide for us whether the retaliatory discharge

provision arises under the workers’ compensation laws within the meaning of

section 1445(c). Because section 1445 is a federal jurisdiction statute with

nationwide application, federal law governs its interpretation. See Grubbs v.

General Electric Credit Corp., 

, 705, 

, 1349 (1972);

Humphrey v. Sequentia, Inc., 

, 1245 (8th Cir. 1995); Arthur v. E.I.

DuPont de Nemours & Co., 

, 125 (4th Cir. 1995); Jones v. Roadway

Express, Inc., 

, 1092 (5th Cir. 1991).

      The only two circuits that have faced this issue have held that a cause of

action created by a state legislature for workers discharged because they file

workers’ compensation claims does indeed “arise” under a state’s “workers’

compensation laws” for the purposes of section 1445(c). See 

; 

. Humphrey and Jones both interpreted the

words “arising under” to have the same meaning in section 1445(c) as in section

1331, which governs federal question jurisdiction.

      The Jones court concluded that Texas’s retaliatory discharge statute arises

under the state’s worker’s compensation laws because it “enables injured workers


                                          8
to exercise their rights under that 

. The court

determined that the legislature enacted the retaliatory discharge statute “to

safeguard its workers’ compensation scheme” and noted that “were it not for the

workers’ compensation laws, [the retaliatory discharge statute] would not exist.”

court followed different reasoning to reach the same

conclusion. The court held that, “[u]nder the plain meaning of the statute, where a

state legislature enacts a provision within its workers’ compensation laws and

creates a specific right of action, a civil action brought to enforce that right of

action is, by definition, a civil action arising under the workers’ compensation laws

of that state.” 

. “Therefore,” the court concluded, “§

1445(c) applies.” 

this conclusion, the court rejected the notion that

a tort-like claim must lie beyond section 1445(c)’s meaning of workers’

compensation laws.

      Cases focusing on whether common law causes of action “arise under”

workers’ compensation laws for section 1445(c) purposes are inapposite. The

Seventh Circuit has held that a court-created tort remedy for employees discharged

in retaliation for filing workers’ compensation claims in Illinois does not arise

under the state’s worker’s compensation laws. See Spearman v. Exxon Coal USA,


                                            9
Inc., 

(7th Cir. 1994). The Spearman court explained that when the

Illinois legislature added an anti-retaliation clause to its workers’ compensation

law, it chose not to create a private remedy. See 

Three years later,

however, the Illinois courts acted on their own, holding that workers’

compensation was one of the substantial public policies that could underlie a

common law claim for wrongful termination in violation of public policy. See

Kelsay v. Motorola, Inc., 

(Ill. 1978). As Spearman notes,

subsequent Illinois cases made clear that the wrongful termination tort claim is

independent of the state workers’ compensation law. 

(citing

Rubenstein Lumber Co. v. Aetna Life & Cas. Co., 

, 661-62 (Ill.

App. Ct. 1st Dist. 1984), and Suddeth v. Caterpillar Tractor Co., 

(Ill. App. Ct. 2d Dist. 1983). In contrast to Alabama, for example, a settlement

discharging an employer from all liability under the workers’ compensation laws

does not bar a retaliatory discharge suit. See 

).



      Similarly, the Fourth Circuit has held that an intentional tort action, brought

when employers act with the deliberate intent to injure workers, does not arise

under state workers’ compensation laws for section 1445(c) purposes. 

. Although West Virginia had codified the deliberate intent cause of


                                          10
action, the Fourth Circuit determined that it “has always been considered a creature

of the common law.” 

The Fourth Circuit noted that an intentional injury

claim had little in common with workers’ compensation claims as understood in

1958, when Congress passed section 1445(c). The court also determined that an

intentional injury claim is not closely related to and does not further the overall

purposes of West Virginia’s workers’ compensation system. 

noted

“the sharp distinction between a retaliatory discharge claim and [an intentional

injury] claim. The action for retaliatory discharge is integrally related to the just

and smooth operation of the workers’ compensation system; it ensures that those

seeking compensation benefits are not scared out of making claims. . . . This cause

of action therefore aids the overriding purpose of providing fixed, no-fault benefits

for workplace injuries.” 

      Because the causes of action at issue in Spearman and Arthur are so different

from Alabama’s retaliatory discharge statute, those cases have little persuasive

force here. Instead, taking into account the history and operation of section 25-5-

11.1 and following the guidance of Jones and Humphrey, we conclude that for the

purposes of section 1445(c), Alabama’s retaliatory discharge cause of action arises

under that state’s workers’ compensation laws.




                                           11
       Section 25-5-11.1 is an integral part of Alabama’s worker’s compensation

regime. Codified together with the remaining worker’s compensation laws, it was

passed to enhance the efficacy of the overall workers’ compensation system. The

retaliatory discharge cause of action increases workers’ willingness to file

compensation claims, and it limits employers’ ability to discourage them. In so

doing, section 25-5-11.1 encourages prompt and thorough medical attention for

workplace injuries. Under the plain meaning of section 1445(c), claims raised

under section 25-5-11.1 arise under Alabama’s workers’ compensation laws.3



   3
     When interpreting statutes, courts should not “resort to the legislative history” if the statutory
language is straightforward. See United States v. Gonzalez, 

, 6, 117 S. ct. 1032, 1035
(1997). In this case, section 1445(c)’s language is clear, and we do not need the legislative history
for interpretive guidance. Even if there were a need to look beyond the plain meaning of section
1445(c), however, the Senate Report for the statute supports our holding or is at worst ambiguous.
See S. Rep. No. 1830 (1958). Congress passed section 1445(c) as part of a bill that also raised the
minimum amount in controversy and imposed other restrictions on diversity jurisdiction. The
“Statement” section of the report concentrates exclusively on easing the workload of the federal
courts. See 

The section of the report concerning the workers’ compensation
provisions also focuses on the increased case load caused by the removal of workers’ compensation
cases. See 

In holding that retaliatory discharge claims in Alabama cannot be
removed from state court because they arise under Alabama’s workers’ compensation laws, we
further section 1445(c)’s apparent purpose of limiting the workload of the federal courts.
        One statement in the Senate Report may indicate that Congress was thinking only of
streamlined, no-fault procedures to compensate employees for work-related injuries when it passed
section 1445(c). The report notes that “[n]early all of the State statutes on workmen’s compensation
provide summary proceedings for the expeditions [sic] and inexpensive settlement of claims by
injured workmen against the employer.” 

That is a weak foundation, however, for a
narrow reading of section 1445(c). The report only provides one example, venue provisions, of state
rules that could be frustrated by removal to federal court. See 

report expresses
concern that litigating in a distant federal court will impose an undue burden on workers. See 

however, applies whether the worker is litigating about compensation for an injury
or being fired for filing a compensation claim.

                                                  12
      Pursuant to this holding, we conclude that the federal court lacks subject

matter jurisdiction to entertain Reed’s retaliatory discharge claim; it must be

remanded to state court. Therefore, we have no occasion to reach Reed’s second

argument relating to his retaliatory discharge claim, that the district court

misconstrued the requirement under Alabama law that plaintiffs show a willingness

and ability to return to work.



B. The Americans With Disabilities Act Claim

      The Americans With Disabilities Act (ADA) provides that “[n]o covered

entity shall discriminate against a qualified individual with a disability because of

the disability of such individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job training,

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

(1999). A plaintiff advancing a claim of employment discrimination under the

ADA must make a prima facie case establishing that (1) he has a disability, (2) he

is a “qualified individual,” which is to say, able to perform the essential functions

of the employment position that he holds or seeks with or without reasonable

accommodation, and (3) the defendant unlawfully discriminated against him




                                          13
because of the disability. See Hilburn v. Murata Elecs. N. Am., Inc., 

, 1226 (11th Cir. 1999).

       The magistrate and district courts concluded that Reed failed to prove both

that his back impairment was a disability within the meaning of the ADA and that,

considering his back problems, he was qualified for any position at Heil. The

district court granted summary judgment for Heil. We review the grant of

summary judgment de novo, reviewing the record in the light most favorable to the

Appellant Reed, the non-moving party. See Holbrook v. City of Alpharetta, 

, 1525-26 (11th Cir. 1997).

       A physical or mental impairment qualifies as a disability under the ADA if it

substantially limits a major life activity, such as working. See 42 U.S.C. §

12102(2)(A).4 “An individual is substantially limited in working if the individual

is significantly restricted in the ability to perform a class of jobs or a broad range

of jobs in various classes, when compared with the ability of the average person

with comparable qualifications to perform those same jobs.” 29 C.F.R. pt. 1630

app. at 351 (1999).




   4
     A person with a record of an impairment substantially limiting a major life activity, or who is
regarded as having such an impairment, also qualifies as disabled under the ADA. See 42 U.S.C.
§ 12102(2)(B)-(C).

                                                14
      This court has never faced the question of whether a restriction to avoid

heavy and extra heavy manual labor, or more specifically, whether a restriction to

lift no more than forty-five or fifty pounds and avoid frequent bending, stretching,

and twisting, fails as a matter of law to establish a disability within the meaning of

the ADA. The magistrate and district courts concluded that these restrictions did

not exclude Reed from a broad range of jobs. A number of circuits have reached

similar conclusions, holding as a matter of law that lifting restrictions comparable

to Reed’s do not constitute a disability. See Thompson v. Holy Family Hosp., 

, 539-40 (9th Cir. 1997) (restriction from lifting more than fifty pounds

twice per day and one hundred pounds once per day not a disability); Williams v.

Channel Master Satellite Sys., Inc., 

, 349 (4th Cir.1996) (twenty-five

pound lifting restriction not a disability); Aucutt v. Six Flags Over Mid-America,

Inc., 

, 1319 (8th Cir.1996) (twenty-five pound lifting restriction not a

disability); Ray v. Glidden Co., 

, 228-29 (5th Cir.1996) (restriction

allowing limited lifting of forty-four to fifty-six pounds not a disability).

      One district court in this circuit has rejected the reasoning of those cases,

finding that restrictions slightly more onerous than Reed’s do constitute a

disability. See Frix v. Florida Tile Ind., Inc., 

, 1034 (N.D. Ga.

1997) (restricted to lifting no more than twenty-five pounds with limited bending


                                           15
and stooping). The Seventh Circuit has held that shoulder injury restrictions of no

heavy lifting, overhead work, pulling, or pushing presented a genuine issue of

material fact as to whether the plaintiff was disabled. See Cochrum v. Old Ben

Coal Co., 

, 911(7th Cir. 1996). The Interpretive Guidelines for the

ADA support this view, providing the following example: “[A]n individual who

has a back condition that prevents the individual from performing any heavy labor

job would be substantially limited in the major life activity of working because the

individual’s impairment eliminates his or her ability to perform a class of jobs.” 29

C.F.R. pt. 1630 app. at 351.

        We do not have to determine whether Reed’s impairment falls short of the

ADA’s definition of a disability as a matter of law, however, because he failed to

establish that he is a “qualified individual,” the second prong of the prima facie

case.

        Determining whether an individual is “qualified” for a job is a two-step

process. See 29 C.F.R. pt. 1630 app. at 352-53. First, does the individual satisfy

the prerequisites for the position; does the individual have sufficient experience

and skills, an adequate educational background, or the appropriate licenses for the

job? See 

the individual perform the essential functions of the job,

either with or without reasonable accommodations? See 

has the


                                          16
burden of proving that reasonable accommodations were available. See 

. Reassignment is only a reasonable accommodation if a position

for which the plaintiff is qualified is available. See Willis v. Conopco, Inc., 

, 284 (11th Cir. 1997).

         Reed did not demonstrate that he was “qualified” for any job available at

Heil. Reed only provided evidence that Heil had vacancies for buyer, welder, pre-

delivery, and grinder positions in the year after his termination when he had “recall

rights” at the company.5 The buyer position requires knowledge of numerous

software applications as well as “[e]xcellent mathmatical [sic], analytical and

communications skills.”6 A bachelor’s degree in business administration was also

desired.7 Reed did not demonstrate he had any of these qualifications.8



   5
     “Recall rights” refers to the priority for job openings that workers laid off from Heil enjoy for
a period after their layoff. The duration of this priority period depends on how long an individual
has worked at Heil. Reed’s recall rights lasted a year after his termination.
   6
     See R2 at tab 43 (Heil’s announcement of the buyer job vacancy, provided as an appendix to
Reed’s Objections to Magistrate Judge’s Findings and Recommendations and Motion for District
Judge to Review De Novo). After conducting an analysis of the tasks performed by the buyer,
plaintiff’s expert Randy Mills concluded that the job required a more limited skills and educational
credentials. See R5 at tab 30 (Job Analysis Narrative Report at 2 (Def. Ex. 10) (providing
requirements for the buyer position)). Even Mills’ report, however, lists a high school diploma as
a prerequisite for the buyer position. See 

R5 at tab 30 (Brandy B. Mills, Vocational Assessment at 1-3 (May 29, 1997) (Def. Ex. 16)
(describing Reed’s skills, educational background, physical condition, and job history)).

                                                 17
         Reed never received medical clearance to return to his position as a welder,

never attempted to perform the tasks required for the job, and could not offer an

opinion as to whether he could handle the physical requirements of the job. His

lifting restrictions preclude him from carrying the type of metal sheets that caused

his injury while working as a welder. Finally, Dr. Hrynkiw testified in a deposition

that the lifting, bending, and stooping requirements of the welding position would

be problematic given Reed’s physical restrictions.9

         The grinder position involves only a medium level of physical activity and

requires no particular educational or experiential background. The job profile

prepared by the Health South Sports Medicine and Rehabilitation Center, however,

lists sustained bending and overhead reaching as frequent on-the-job motions;

repeated stooping is also an occasional activity.10 Reed’s restrictions seem

incompatible with these activities, and Dr. Hrynkiw expressed concern about

Reed’s ability to sustain the torso rotation and lumbar mobility in the grinder’s

work.11




   9
       See R3 at tab 28 (Dep. of Zenko Hrynkiw, M.D. at 26-27 (Sept. 23, 1997)).
   10
        See R3 at tab 28 (Chipper/Grinder Job Description 3 (Def. Ex. 2))
   11
        See R3 at tab 28 (Dep. of Zenko Hrynkiw, M.D. at 30 (Sept. 23, 1997)).

                                                18
         Reed also failed to demonstrate that he could perform the essential tasks of

the pre-delivery position advertised by Heil. The job description shows that the

full-time pre-delivery worker cleans trucks, greases all the fittings on the truck

body, and test drives trucks.12 Reed was unable to reach and grease all the fittings

when he worked in the pre-delivery department.13 It is also undisputed that test-

driving the garbage trucks would painfully aggravate Reed’s back.14

         Finally, Reed did not suggest, let alone prove, any reasonable

accommodations that would have allowed him to perform the essential tasks of

welder, grinder, buyer, or pre-delivery worker at Heil. The burden is on the

plaintiff to prove by a preponderance of the evidence all elements of the prima

facie case. See 

. Even drawing all inferences in his favor,

the record evidence could not show that Reed was qualified for and able to perform

any job available at Heil.



                                     III. CONCLUSION



   12
     See R5 at tab 30 (Job Analysis Narrative Report (Def. Ex. 1) (providing requirements for the
pre-delivery position)).
   13
        See R3 at tab 28 (Second Bruce Reed Dep. at 160-62 (Mar. 12, 1997)).
  14
     See 

Reed Dep. at 133-36 (Mar. 12, 1997)); R5 at tab 30 (Brandy Mills Dep.
at 90 (July 10, 1997)).

                                               19
      We REVERSE the grant of summary judgment for Heil on Reed’s

retaliatory discharge claim and REMAND, with instructions to the district court to

remand the claim to the Circuit Court of DeKalb County, Alabama. We AFFIRM

the district court’s grant of summary judgment for Heil on Reed’s ADA claim.




                                        20