Filed: May 30, 1996
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-10704 _ PHYLLIS ELLISON, Plaintiff-Appellant, versus SOFTWARE SPECTRUM, INC., Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas (3:94-CV-2068-R) _ May 30, 1996 Before BARKSDALE, DeMOSS, and PARKER, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge: Phyllis Ellison, who was treated for breast cancer, challenges the summary judgment granted her employer, Software Spectrum, Inc. (S
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 95-10704 _ PHYLLIS ELLISON, Plaintiff-Appellant, versus SOFTWARE SPECTRUM, INC., Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Texas (3:94-CV-2068-R) _ May 30, 1996 Before BARKSDALE, DeMOSS, and PARKER, Circuit Judges. RHESA HAWKINS BARKSDALE, Circuit Judge: Phyllis Ellison, who was treated for breast cancer, challenges the summary judgment granted her employer, Software Spectrum, Inc. (SS..
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-10704
_____________________
PHYLLIS ELLISON,
Plaintiff-Appellant,
versus
SOFTWARE SPECTRUM, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:94-CV-2068-R)
_________________________________________________________________
May 30, 1996
Before BARKSDALE, DeMOSS, and PARKER, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Phyllis Ellison, who was treated for breast cancer, challenges
the summary judgment granted her employer, Software Spectrum, Inc.
(SSI), on her Americans with Disabilities Act (ADA) claim,
contending, inter alia, that a material fact issue exists on
whether she had the requisite "disability" under the ADA, 42 U.S.C.
§ 12102(2). Concluding otherwise, we AFFIRM.
I.
In January 1992, Ellison was employed as a "returns person" in
SSI's Product Operations Department, after having worked there for
two years as a temporary employee. The next January, when the
returns position was eliminated, Ellison became a salaried buyer in
the same department. She received a six percent raise after her
January 1993 performance review.
In August 1993, Ellison learned that she had breast cancer,
immediately had a lumpectomy, and received daily radiation
treatment from mid-September through that October. She did not
miss work while undergoing treatment but, at her request, SSI
allowed her to work on a modified schedule. She arrived at work at
10:30 a.m. following her radiation therapy, skipped her lunch hour
and morning break, and took work home. Improving steadily after
the treatment ended, Ellison felt "back to normal" by February
1994.
Ellison received a lower evaluation on her January 1994
performance review, and received only a three percent raise; the
company average was five percent. And, in early 1994, SSI decided
to reduce the number of employees in Ellison's department from 35
to 31, effective that April. Three positions were eliminated, the
number of buyers was reduced from eight to six, and a returns
position was created. John Logan, Ellison's supervisor, and Jim
Duster, Director of the Product Operations Department, evaluated
and ranked each of the 35 employees. On March 2, Ellison and three
other employees were informed that they had 30 days to find other
positions in the company or leave. A vacancy developed for the
returns position, however; based on her rating, Ellison was next in
line for it. She was offered the position and accepted it in mid-
March.
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Five months later, Ellison filed suit in state court against
SSI, claiming violations of the ADA and the Family Medical Leave
Act (FMLA), as well as intentional infliction of emotional distress
under state law. After SSI removed the action to federal court,
Ellison amended her complaint to add an ERISA claim. The district
court granted summary judgment for SSI on all but the FMLA claim,
and entered a Rule 54(b) judgment for the ADA, ERISA, and emotional
distress claims.
II.
Ellison contests the summary judgment only on her ADA claim.
As is well known, we review a summary judgment de novo, applying
the same standard as the district court: factual issues are
considered in the light most favorable to the nonmovant, and the
"judgment is proper when no issue of material fact exists and the
moving party is entitled to judgment as a matter of law". Dutcher
v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995); FED. R.
CIV. P. 56. "[T]he substantive law will identify which facts are
material", and "[a] dispute about a material fact is `genuine' ...
if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party". Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
For the ADA claim, the court held that Ellison's breast cancer
was not a requisite "disability" within the meaning of the ADA.
Therefore, it did not rule on the other elements of that claim.
(Likewise, because we conclude that summary judgment as to
disability is proper, we need not reach those other elements,
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eliminating also the sub-issue of whether to remand for the
district court to consider them first.)
The ADA defines "disability" using three alternatives:
(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). It is undisputed that Ellison's cancer was
an "impairment".1 Because she claims that a material fact issue
exists for each of the three § 12102(2) alternatives, we will
examine each subpart in turn.
A.
Subpart (A) concerns whether Ellison's impairment
"substantially limit[ed]" one or more of her "major life
activities". Although the ADA does not define "substantially
limits" and "major life activities", the regulations promulgated by
the Equal Employment Opportunity Commission "provide significant
guidance". Dutcher, 53 F.3d at 726. They state that "[m]ajor life
1
Regulations promulgated by the Equal Employment Opportunity
Commission define a physical impairment as:
Any physiological disorder, or condition,
cosmetic disfigurement, or anatomical loss
affecting one or more of the following body
systems: neurological, musculoskeletal,
special sense organs, respiratory (including
speech organs), cardiovascular, reproductive,
digestive, genito-urinary, hemic and
lymphatic, skin, and endocrine ....
29 C.F.R. § 1630.2(h)(1).
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activities means functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working". 29 C.F.R. § 1630.2(i). In district court,
"working" is the only major life activity for which Ellison claimed
a substantial limitation.2
The regulations provide that whether an impairment
substantially limits a major life activity is determined in light
of
(i) The nature and severity of the
impairment;
(ii) The duration or expected duration of
the impairment; and
(iii) The permanent or long term impact,
or the expected permanent or long term impact
of or resulting from the impairment.
29 C.F.R. § 1630.2(j)(2). And, for the major life activity of
"working", the regulations provide that
(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 various 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 in the
major life activity of working.
(ii) In addition to the factors listed in
paragraph (j)(2) of this section [quoted
above], the following factors may be
considered in determining whether an
2
Here, as discussed infra in this part, Ellison asserts that
all major life activities would have been substantially limited, as
part of her contention that her cancer treatment is irrelevant to
whether the cancer was an ADA disability. As also discussed infra,
because this was not raised in district court, we do not consider
major life activities other than working.
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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 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 because of an
impairment, 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).
29 C.F.R. § 1630.2(j)(3). As hereinafter discussed, in light of
the statute and these regulations, a material fact issue does not
exist for this subpart.
In support of its summary judgment motion, SSI submitted the
affidavit of Duster, the Product Operations Department director; he
stated that no special accommodations were necessary for Ellison,
and that at all times, she had demonstrated the physical and mental
ability to work. SSI also submitted excerpts from Ellison's
deposition; she testified that the radiation treatment made her
nauseous and tired and she suffered an allergic reaction to the
radiation which caused painful swelling and inflammation, but that
the treatment did not affect her ability to do her job and she
never missed a day of work. She testified further that her normal
workday was seven and one-half hours; that she was able to work
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almost that amount while receiving treatment, by working from 10:30
a.m. until 6:00 p.m., with no lunch and only an afternoon break;
and that she improved steadily after the radiation treatment was
completed, and was back to normal in three or four months (by
February 1994).
In opposition, Ellison submitted her physician's deposition;
he stated that cancer can cause death if not treated and causes
emotional distress from the fear that it will return. She
submitted also the deposition of her former supervisor, Logan; he
stated that Ellison was not as effective at work, and that the
quality of her work suffered while she was receiving radiation
treatment. And, in her affidavit, Ellison detailed the nausea,
fatigue, swelling, inflammation, and pain she experienced as a
result of the treatment and the medication she was given for her
allergic reaction to the radiation, but stated that, although she
constantly felt sick and fatigued, she "could perform [her]
essential job responsibilities ... so long as [SSI] allowed [her]
the accommodation of a modified work schedule so that [she] could
attend appointments with [her] doctors and receive [her]
treatments".
As stated, the summary judgment evidence, viewed in the light
most favorable to Ellison, does not create a material fact issue on
whether her cancer and treatment "substantially limited" her major
life activity of working. Obviously, her ability to work was
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affected; but, as reflected in the above-quoted statute and
regulations, far more is required to trigger coverage under §
12102(2)(A).
Along this line, Ellison contends that it is irrelevant both
that SSI made reasonable accommodations in her work schedule and
that her cancer was treated successfully. In support, citing 29
C.F.R. Pt. 1630, App. § 1630.2(h) (the appendix is the EEOC's
"Interpretive Guidance" to the ADA), she asserts that "ADA
regulations require that the existence of one's disability be
determined without regard to the effects of mitigating measures
such as drugs or prosthesis", and maintains that acceptance of a
contrary position would both "punish employees for seeking
reasonable accommodations in order to continue working instead of
taking medical leave" and "undermine the salutary purpose of the
ADA by discouraging, rather than encouraging, gainful employment".
Ellison did not present this contention in district court;
therefore, we will not consider it. See, e.g., Stults v. Conoco,
Inc., 76 F.3d 651, 657 (5th Cir. 1996) (internal quotation marks
and citation omitted) ("[a]lthough on summary judgment the record
is reviewed de novo, this court for obvious reasons, will not
consider evidence or arguments that were not presented to the
district court for its consideration in ruling on the motion").3
3
As noted, the appendix is not part of the regulations, but is,
instead, the EEOC's interpretation of those regulations. See 29
C.F.R. Pt. 1630, App., Introduction. Furthermore, the part Ellison
relies on addresses impairment, not disability, stating that
[t]he existence of an impairment is to be
determined without regard to mitigating
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B.
Concerning subpart (B) of § 12102(2), Ellison maintains that
a material fact issue exists on whether she had a "record" of
having a substantially limiting impairment. The regulations state:
Has a record of such impairment means has
a history of, or has been misclassified as
having, a mental or physical impairment that
substantially limits one or more major life
activities.
29 C.F.R. § 1630.2(k).
SSI presented the affidavit of Celia Boynton, Employee
Relations Representative in its Human Resources Department; she
stated that nothing in Ellison's personnel file has ever indicated
that she was substantially limited by a physical or mental
impairment either in her ability to perform her job or in any other
measures such as medicines, or assistive or prosthetic devices....
For example, an
individual with epilepsy would be considered to have an impairment
even if the symptoms of the disorder were completely controlled by
medicine. Similarly, an individual with hearing loss would be
considered to have an impairment even if the condition were
correctable through the use of a hearing aid.
29 C.F.R. Pt. 1630, App. § 1630.2(h) (emphasis added). Again, it
is undisputed that Ellison's cancer was an impairment; but, "[a]
physical impairment, standing alone, is not necessarily a
disability as contemplated by the ADA [because t]he statute
requires an impairment that substantially limits one or more of the
major life activities". Dutcher, 53 F.3d at 726.
We recognize, consistent with Ellison's contention, that App.
§ 1630.2(j) does provide that "[t]he determination of whether an
individual is substantially limited in a major life activity must
be made on a case by case basis, without regard to mitigating
measures such as medicines, or assistive or prosthetic devices".
29 C.F.R. Pt. 1630, App. § 1630.2(j). Arguably, on the other hand,
had Congress intended that substantial limitation be determined
without regard to mitigating measures, it would have provided for
coverage under § 12102(2)(A) for impairments that have the
potential to substantially limit a major life activity.
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respect. Ellison did not present any evidence to counter that
affidavit. Moreover, contrary to the alternative position advanced
by Ellison, SSI's acquiescence in her modified schedule to
accommodate her treatment does not create a material fact issue on
whether she had the requisite record, in that she did not miss a
day of work and her ability to work was not substantially limited.
C.
Finally, Ellison relies upon subpart (C) ("regarded as having
such an impairment"), asserting that SSI's comments to, and about,
her create a material fact issue on whether it regarded her cancer
as a substantial limitation on her ability to work. The EEOC
regulations define "regarded as having such an impairment" as
follows:
(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 others toward such impairment; or
(3) Has none of the impairments defined
in paragraph (h)(1) or (2) of this section but
is treated by a covered entity as having a
substantially limiting impairment.
29 C.F.R. § 1630.2(l).
As noted, an employer does not necessarily regard an employee
as having a substantially limiting impairment simply because it
believes she is incapable of performing a particular job; "[t]he
statutory reference to a substantial limitation indicates instead
that an employer regards an employee as [substantially limited] in
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his or her ability to work by finding the employee's impairment to
foreclose generally the type of employment involved". Forrisi v.
Bowen, 794 F.2d 931, 935 (4th Cir. 1986); see also 29 C.F.R. §
1630.2(j)(3)(i).4
In claiming that SSI regarded her cancer as a substantially
limiting impairment, Ellison relies on four comments by her
supervisor, Logan. The first three fall far short of creating a
material fact issue.
First, when Ellison informed Logan that she needed a modified
work schedule in order to receive daily radiation treatment, Logan
expressed his irritation by suggesting that she get a mastectomy
instead because her breasts were not worth saving.
Second, when Ellison suffered from nausea after returning from
a treatment, Logan asked her where she had been; a co-worker
explained that Ellison had been in the restroom because she was
sick. When Ellison stated that she got sick every time she thought
of eating or drinking, Logan responded that it had not affected her
weight.
Third, upon Ellison arriving at work following a radiation
treatment, a power outage occurred at SSI; the employees were told
to evacuate the building. When employees responded that they could
4
Although Forrisi concerns a claim under a similar provision of
the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., "the
substantial equivalency of the definition of disability under the
Rehabilitation Act and the ADA strongly suggests that prior
constructions of the Rehabilitation Act should be generally
applicable in construing the ADA definition of `disability'".
Dutcher, 53 F.3d at 727 n.14. Dutcher cites the above-quoted
portion of Forrisi with approval.
Id. at 728 n.20.
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not see because it was dark, Logan laughed and said, "[D]on't worry
about it. Follow Phyllis ... see, look over there. She's
glowing."
It goes without saying that these comments are beneath
contempt (when deposed, Logan was no longer employed by SSI); but,
as stated, they do not create a material fact issue on whether SSI
regarded Ellison as having a substantially limiting impairment.
The final comment, however, presents a closer question.
During a meeting in 1994, in which the departmental reduction
was discussed, a member of the human resources department asked
whether any of the potentially affected employees had special
circumstances that needed to be considered; Logan responded,
"Phyllis has cancer". Ellison maintains that the remark creates a
material fact issue on whether SSI's decision to discharge her was
based on its perception that she had cancer. SSI counters that the
remark reflects nothing more than its awareness of Ellison's cancer
and, in fact, could be interpreted as a request that she be given
special consideration in determining which employees would be
affected by the reduction.
We must consider this comment in the light most favorable to
Ellison, but we cannot do so in isolation. As noted, when the
returns position became open, it was offered to Ellison and she
accepted it. And, as stated in her deposition, she continues to
earn the same salary, to be eligible for the pay on performance
plan, and to receive the same employee benefits. The fact that SSI
offered Ellison another position in the company, as well as the
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fact that three other employees, in addition to Ellison, were
affected by the reduction, precludes there being a material fact
issue as to whether Ellison was included in the affected group
because SSI "regarded [her] as having ... [a substantially
limiting] impairment".
III.
For the foregoing reasons, the judgment on Ellison's ADA claim
is
AFFIRMED.
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