[PUBLISH]
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ________________ ELEVENTH CIRCUIT DEC 4 2000 THOMAS K. KAHN No. 99-13917 CLERK ________________
D.C. Docket No. 97-00892-CV-KMM
ISHAQ I. CHANDA,
Plaintiff-Appellant,
versus
ENGELHARD/ICC, f.k.a. Ciba-Geigy Corp.,
Defendant-Appellee.
Appeal from the United States District Court for the Southern District of Florida
(December 4, 2000)
Before TJOFLAT, HILL and POLITZ*, Circuit Judges.
POLITZ, Circuit Judge:
* Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation. Ishaq I. Chanda appeals an adverse grant of summary judgment. The trial
court found that he failed to establish that he was “disabled” under the ADA, failed
to pursue any retaliation claim, and failed to rebut defendant’s non-discriminatory
reasons for his termination. Concluding that summary judgment was appropriate,
we affirm.
BACKGROUND
Chanda, a 44-year-old Pakistani male, is licensed in Florida as a professional
engineer. He began working as an engineer technician at Ceiba-Geigy Corp in
1990, and in February 1993 became a shift supervisor in the production
department. His duties included research and development on different materials
used by the corporation, drafting facility lay-outs, and building tool prototypes.
The corporation merged in 1993, becoming Engelhard/ICC. In December of that
year, Englehard laid off Chanda but rehired him the same day for a position in its
Quality Control Department.
In March of 1994 he was reassigned as a quality control technician. This
position required Chanda to cut various widths of honeycomb foam-board with a
retractable utility knife and metal scraper to obtain test samples. While previously
this cutting job rotated between four or five employees, Chanda alone performed it.
Deposition testimony indicates that Engelhard assigned Chanda the cutting job as
2 part of “the Drill,” an operation in which an employee received many nearly
impossible tasks, ultimately leading to resignation or dismissal for poor
performance.
In July of 1994, Chanda’s supervisor and another superior met with Chanda
to discuss his work mistakes. Chanda was persuaded that the supervisor was
prejudiced against him in that he “favored the others.” Engelhard documented the
meeting and complaint in a memorandum dated July 1, 1994. In August, Chanda
began complaining to co-workers and the company’s Environmental Health and
Safety Coordinator about pain in his wrist. The Coordinator told Chanda to use a
wristband and Myoflex cream, and also suggested exercise. Chanda did as he was
told but the pain continued and increased in frequency. In October, Chanda again
complained to his superiors and was told to see his family physician. On
November 12, the family physician diagnosed Chanda with mysositis, an
inflamation of the wrist and forearm.
In December of 1994, Chanda asked his supervisor to reassign him to
engineering duties. The request was denied. At least two other positions came
available at Engelhard during the time Chanda was cutting. Despite his
qualifications, he was not considered for either position.
On July 13, 1995, Chanda submitted a memorandum to the company
3 complaining of pain in his right forearm and asserting it’s relation to his cutting
job. Upon receiving the written complaint, Engelhard sent Chanda to his personal
physician who restricted Chanda from repetitive motions and lifting over 20
pounds.
Engelhard placed Chanda on medical leave on July 18, 1995. On July 26,
Engelhard sent Chanda to its own physician who warned Chanda that his personal
physician’s diagnosis threatened his job. The company physician diagnosed
Chanda with tendinitis, but cleared him to work with similar restrictions,
instructing him to wear a brace. Despite this recommendation, Engelhard refused
to take Chanda off medical leave. In August or September of 1995, Enhelhard
advertised for a position in the wheel manufacturing department, but failed to post
the position internally.
Chanda’s physician removed his restriction in October, and on October 30
Engelhard again assigned Chanda to the cutting job. After only five days Chanda’s
pain returned, rendering him unable to perform such activities as grasping, turning,
lifting, typing, writing, using a computer, or other functions requiring the use of his
right hand. Chanda returned to the company physician who permanently restricted
him from performing the cutting function. Finding that Chanda could no longer
perform the cutting duties required of his position, Engelhard terminated his
4 employment on November 9, 1995. Chanda brought the instant action under the
Americans with Disabilities Act1 and the Florida Civil Rights Act.2 Chanda also
sued for retaliatory discharge under Title VII.3
ANALYSIS
We review the district court’s grant of summary judgment de novo,4
resolving all factual issues with all reasonable inferences being drawn in favor of
the non-movant.5 The moving party has the burden of demonstrating that there is
no genuine issue as to any material fact, and a summary judgment is to be entered
if the evidence is such that a reasonable jury could find only for the moving party.6
Once the moving party provides support for its motion, the non-moving party must
come forward with extrinsic evidence “sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial.”7 The Florida courts have recognized, and both parties agree, that
1 42 U.S.C. §§ 12101 et seq. (1997). 2 FLA. STAT. Ch. 760.10 (1997). 3 42 U.S.C. §§ 2000e et seq. (1997). 4 Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1326 (11th Cir. 1998); Wouters v. Martin County, Florida, 9 F.3d 924, 928 (11th Cir. 1993). 5 Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992). 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). 7 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56(e).
5 actions under the Florida Civil Rights Act are analyzed under the same framework
as the ADA.8 We therefore address Chanda’s disability claims using an ADA
analysis.
A. Disability Discrimination
The ADA mandates that employers shall not discriminate against "a
qualified individual with a disability.”9 A "qualified individual with a disability" is
an "individual with a disability who, with or without reasonable accommodation,
can perform the essential functions of the employment position that such individual
holds or desires."10 This appeal poses the question whether Chanda provided
sufficient evidence for a reasonable jury to find him disabled under the Act.
The ADA defines a "disability" as “a physical or mental impairment that
substantially limits one or more of the major life activities of an individual.”11
Chanda maintains that three doctors diagnosed him with tendinitis and that such an
impairment constitutes a disability under the ADA. While Engelhard appears to
concede that Chanda’s tendinitis is a physical impairment, in order to constitute a
8 See Fromm-Vane v. Lawnwood Med. Ctr., Inc., 995 F. Supp. 1471, 1475 n.4 (S.D. Fla. 1997). 9 42 U.S.C. § 12112(a). 10 42 U.S.C. § 12111(8). 11 42 U.S.C. § 12102(2).
6 disability within the meaning of the statute, a physical impairment must
"substantially limit[ ] one or more of the major life activities of an individual."12
We “look to EEOC regulations to assess the next analytical step of determining
whether a physical impairment substantially limits a major life activity.”13
The regulations define "substantially limits" as rendering an individual
"[u]nable to perform a major life activity that the average person in the general
population can perform" or "[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 condition, manner, or duration under which the average person in
the general population can perform that same major life activity."14 The
regulations also discuss three factors: (1) the nature and severity of the
impairment; (2) the duration or expected duration of the impairment; and (3) the
permanent or long term impact, or the expected permanent or long term impact of
or resulting from the impairment.15
12 42 U.S.C. § 12102(2)(A). See also Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220, 1227 (11th Cir. 1999); Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 (11th Cir.), amended in part on reh’g by, 102 F.3d 1118 (11th Cir. 1996). 13 Hillburn, 181 F.3d at 1226 (citing Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir.1996)). 14 29 C.F.R. §§ 1630.2(j)(1)(i), (ii) (1997). 15 29 C.F.R. § 1630.2(j)(2).
7 1. Major Life Activity
We first must identify the major life activity involved. The regulations
define major life activities as "functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working."16 On appeal Chanda focuses on his major life activity of performing
manual tasks.
2. Substantial Limitation
We next address the crucial issue whether Chanda’s tendinitis substantially
limited his major life activity of performing manual tasks. Chanda asserts that the
manual tasks he no longer can perform include turning handles, grasping, holding
or lifting objects, using a computer or writing with a pen. While not approving the
treatment accorded Chanda herein, our analysis of the regulations and controlling
jurisprudence persuades that the record contains sufficient evidence to support the
summary judgment.
Our reasoning in Hillburn is compelling . Therein we affirmed the trial
court’s finding of a physical impairment based on petitioner’s heart disease, but
held that a diminished activity tolerance for normal daily activities such as lifting,
running and performing manual tasks, as well as a lifting restriction, did not
16 29 C.F.R. § 1630.2(i ) (1997).
8 constitute a disability under the ADA.17 Similarly, while Chanda’s tendinitis
constitutes a physical impairment, his deposition testimony and that of his doctors
fails to establish a genuine issue as to any substantial limitation. Chanda
acknowledged an ability to assist his spouse with household activities, to dress and
feed himself, and to drive an automobile.18 He acknowledged his ability to attend
school and take four classes, all of which required the taking of notes.19 He stated
that he could perform the functions of a quality control engineer, which involved
writing and computer use.20 In light of Chanda’s ability to use his hand for the
purposes acknowledged in his testimony, we conclude that his tendinitis was not
the statutorily required substantial limitation on his ability to perform manual
tasks.21
We note that Chanda’s personal physician stated that the impairment
17 Hilburn, 181 F.3d at 1228. 18 Chanda Dep., pp. 188-89. 19 Id. 20 Id. at 227. Chanda was asked “On October 30th of 1995 when you went back to work after being out of work for several months, could you have spent four hours cutting the honeycomb and four hours doing the engineering work that you had described earlier?” to which he responded “yes, I could have done that.” He also described his engineering work, including drafting the facility layout on AutoCAD and typing reports on the computer. 21 In Hilburn, petitioner answered deposition questions in the affirmative when asked if she could "walk and run," "sit and stand," "sleep and eat," "bathe," "dress," "write with a pencil and pen," "work around the house," "cook," and "work." 181 F.3d at 1228.
9 restricted Chanda in “the major life activities which is [sic] going to require
movement of [sic] right forearm and right wrist,” such as tennis, typing, cutting,
grasping objects, writing with a pen, and working on a computer.”22 We rejected
similar statements by a doctor in Hilburn,23 finding that “the absence of any
specific facts which would substantiate [the doctor’s] conclusion deprives this
medical diagnosis of any probative value.”24 Here also, Chanda’s personal doctor
fails to articulate any specific facts describing his limitation and, given Chanda’s
own deposition testimony contradicting his doctor’s prognosis, we must conclude
that the doctor’s medical conclusion is insufficient to create a genuine issue of
material fact.
We are persuaded that a plaintiff must demonstrate that he is substantially
limited in a range of manual tasks rather than a narrow category thereof.25
22 Abbasi Dep. at 29-30. 23 181 F.3d at 1227-28. 24 Id.; see also Evers v. General Motors Corp., 770 F.2d 984, 986 (11th cir. 1985) (“conclusory allegations without specific supporting facts have no probative value”). 25 See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723 (5th Cir. 1995) (finding that an arm injury that restricted heavy lifting and repetitive movements was not a disability when plaintiff could perform daily activities such as feeding herself, driving, washing dishes, and vacuuming); Khan v. Cook County, No. 96-C1113 6/27/97 (N.D. Ill.)(unpublished opinion) (holding that carpal tunnel syndrome did not substantially limit major life activity of performing manual tasks when impairment only limited a narrow range of tasks, such as writing longer than 15 to 20 minutes, tying shoes, or lifting more than 15 pounds); Ouzts v. USAir, Civ. A. No. 94-625 7/26/96 (W.D. Pa.) (unpublished opinion) (rejecting plaintiff’s claim that her inability to grasp or manipulate an item, or carry more than a few pounds constituted a disability, when plaintiff
10 Chanda’s only restrictions that were severe, of lengthy duration, and with a long
term impact were related to a narrow category of tasks, such as typing or cutting
foamboard for an extensive period of time. He acknowledged that he could
perform daily activities, including dressing himself, driving, and attending classes
or working in a position requiring computer usage. We must conclude that while
his tendinitis constitutes an impairment, it falls short of substantially limiting the
major life activity of performing manual tasks.
We are aware of the recent Sixth Circuit decision in Williams v. Toyota
Motor Mnfr, KY, Inc.,26 in which an employee working on the assembly line
developed carpal tunnel syndrome and tendinitis in her hands and arms. After
being temporarily reassigned to car inspections, her new position was expanded to
include gripping a block of wood with a sponge attached and wiping down cars.
Aside from wiping, the new job required her to keep her hands and arms up around
shoulder height repetitively over several hours. Her ligament and muscle problems
reappeared, this time more severely, with tendinitis now spreading to her shoulder
and neck as well. Toyota refused her request to return to car inspection and
Williams sued. The district court granted the employer’s motion for summary
could make meals, put on make up, comb her hair, and drive). 26 224 F.3d 840 (6th Cir. 2000).
11 judgment, finding that Williams was not disabled under the ADA. The Sixth
Circuit reversed, holding that “the plaintiff’s set of impairments to her arms,
shoulders and neck are sufficiently disabling to allow the fact finder to find she
crosses the threshold into the protected class of individuals under the ADA who
must be accorded reasonable accommodation.”27
The court noted that while Williams could perform “a range of isolated, non-
repetitive manual tasks” over a short period of time, such as personal hygiene
activities or household chores, such an ability did not effect a determination that
her impairment substantially limited her ability to perform the range of manual
tasks associated with an assembly line job.28 The court found the duration of
Williams’s impairment, as well as its expected permanent impact, “inferrable from
the permanent work restrictions prescribed by Williams’s treating physicians.”29
The Sixth Circuit’s extension of ADA protection in Williams is of interest
and value, but recognizing the case-by-case nature of the disability determination
we must distinguish that case on its facts. The tendinitis at issue in Williams
extended far beyond the wrist, encompassing petitioner’s entire upper arm,
27 Id. at 843. 28 Id. 29 Id.
12 shoulders, and neck. It rendered her unable to raise her arms above her head for
extended periods, and proved severe enough for the court to state that “her ailments
are analogous to having missing, damaged or deformed limbs . . ..”30 The
impairment proved so pervasive as to preclude jobs that “require the gripping of
tools and repetitive work with hands and arms extended at or above shoulder level
for extended periods of time.”31
In contrast, Chanda’s tendinitis only rendered him unable to perform a
narrow range of jobs causing pain in his wrist.32 His deposition testimony reveals
that he welcomed an engineering job, which involved the use of computers. We
find little comparison between Chanda’s impairment and “missing, damaged or
deformed limbs.” The record before us contains insufficient evidence to occasion
the vitiation of the entering of summary judgment on his disability claims.33
30 Id. 31 Id. 32 See Terrell v. USAir, 955 F. Supp. 1448 (M.D. Fla. 1996) (failing to find a triable issue whether plaintiff’s carpal tunnel substantially limited her major life activity of caring for herself despite facts establishing that plaintiff could not effectively brush her teeth or hair and experienced discomfort in gripping the steering wheel while driving her car). 33 Chanda also contends in his motion for reconsideration that he is disabled because his medical documents show a “record of discrimination” and, alternatively, that Engelhard fired him because he could no longer cut, and thus “perceived” him to be disabled. After thoroughly examining the record, we see no reference to either of these latter methods of proving a disability in Chanda’s complaint or reply to defendant’s motion for summary judgment. We thus decline to address those issues, noting only in passing that Chanda’s problem would remain that “the impairment indicated in the record must [still] be an impairment that would substantially limit
13 B. Retaliation Claim
Chanda also brought a retaliation claim against Engelhard. This claim is
clouded by Chanda’s EEOC documents and his counsel’s assertion at oral
argument and in his brief. Chanda checked the “retaliation” box as well as the
“disability” box on his EEOC papers and in the “particulars” section thereof wrote
“I also complained about discrimination.” Chanda’s affidavit, however, states that
he was “retaliated against because [he] complained both verbally and in writing
about discrimination due to [his] disability.” While his EEOC affidavit appears to
allege retaliation for complaining of discrimination based on his disability, Chanda
brought the claim under Title VII in his complaint, couching it as a ethnic
discrimination claim. Counsel for Chanda also briefly discussed the retaliation
claim at oral argument, basing it on national origin discrimination, and Chanda’s
brief asserts retaliation because he claimed national origin discrimination.
The filing of an administrative complaint with the EEOC is ordinarily a
jurisdictional prerequisite to a Title VII action.34 A Title VII action, however, may
be based “not only upon the specific complaints made by the employee’s initial
one or more of the individual’s major life activities.” 29 C.F.R. § 1630.2(k) (1997); see also Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 645 (2d Cir.1998); Davidson v. Midelfort Clinic, Ltd., 133 F.3d 499, 510 n.7 (7th Cir.1998); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1120-21 (5th Cir.1998). 34 Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980), cert. denied, 450 U.S. 997 (1981).
14 EEOC charge, but also upon any kind of discrimination like or related to the
charge’s allegations, limited only by the scope of the EEOC investigation that
could reasonably be expected to grow out of the initial charges of
discrimination.”35 Chanda’s EEOC filing reflects an intention to pursue a
retaliation claim, but there is no reference to a national origin claim. In his Charge
of Discrimination, Chanda checked the retaliation box and stated in paragraph one
of the “particulars” section that he was a person with a disability and that he had
“complained about discrimination.” Chanda explains this in the third paragraph,
stating that he believed he was “discriminated and retaliated against in violation of
Title I of the Americans with Disabilities Act and the Florida Human Rights Act
(Chapter 760).” Nothing in his EEOC filing mentions discrimination based on
national origin, any complaint about such discrimination, or a claim under Title
VII.36 We must conclude, therefore, that a reasonable investigation based on the
EEOC charge did not and would not encompass retaliation based on complaints
about national origin discrimination.
35 Fine v. GAF Chemical Corp., 995 F.2d 576, 578 (5th Cir. 1993) (quoting Fellows v. Universal Restaurants Inc., 701 F.2d 447, 451 (5th Cir.), cert. denied, 464 U.S. 828 (1983). 36 We note also that Chanda’s “Intake Questionnaire” states: “I believe I was retaliated against because I complained both verbally and in writing about discrimination due to my disability.” It does not mention complaining about national origin discrimination. Further, Chanda’s affidavit references his written complaint in July, 1995, which involved his disability. Chanda does not reference the documented complaint in July, 1994, where Chanda stated that he felt Catron was prejudiced against him in that he “favored the others.”
15 C. Conclusion
Summary judgment on Chanda’s disability claim was appropriate because
Chanda failed to present sufficient evidence such that a reasonable jury could find
him disabled under the ADA. Chanda also failed to meet the initial jurisdictional
requirement for his Title VII retaliation claim by not including it in his EEOC
charge. Finally, because of the foregoing, the rejection of Chanda’s claims under
the Florida Civil Rights Act also is appropriate.
The judgment appealed is, in all respects, AFFIRMED.