United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 30, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 03-10126 Summary Calendar
CAREY MCCLURE,
Plaintiff-Appellant,
versus
GENERAL MOTORS CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Texas (USDC No. 4:01-CV-878-A) _______________________________________________________
Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.
PER CURIAM:*
Carey McClure, who suffers from a rare form of muscular dystrophy affecting the
muscles in his upper arms and shoulders, appeals the district court’s grant of summary
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. judgment in favor of General Motors Corporation on his claim of employment
discrimination under the Americans With Disabilities Act (ADA). See 42 U.S.C. §
12101 et seq. The district court concluded that McClure could not assert a claim under
the ADA because the evidence does not establish that he is disabled or that General
Motors regarded McClure as disabled. We affirm for the following reasons.
1. We review the district court's summary judgment rulings de novo, applying the
same standard as the district court. Blanks v. Southwestern Bell Communs., Inc.,
310 F.3d 398, 400 (5th Cir. 2002). In making the ultimate determination of
whether summary judgment was proper, the Court reviews the facts, and all
inferences drawn from those facts, in the light most favorable to the party
opposing the motion. Id.
2. “As a threshold requirement in an ADA claim, the plaintiff must, of course,
establish that he has a disability.” Waldrip v. General Elec. Co., 325 F.3d 652, 654
(5th Cir. 2003) (quoting Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758
(5th Cir. 1996)). The ADA defines “disability” as “a physical . . . impairment that
substantially limits one or more major life activities of [an] individual.” 42 U.S.C.
§ 12102(2)(A). There is a three-part test for applying this definition. Bragdon v.
Abbott, 524 U.S. 624, 631 (1998). A court must determine first whether the
individual alleging a violation of the ADA has an “impairment,” next whether the
activity on which he relies is a “major life activity,” and, if so, whether his
2 impairment “substantially limits” that major life activity. Id.
3. McClure argues that the district court erred by employing the wrong legal standard
to determine whether he is disabled under the ADA and by focusing on whether
his impairment substantially limits his ability to work without considering other
major life activities. We disagree. The district court’s opinion indicates that it
considered the difficulties McClure experiences caring for himself, eating, and
performing manual tasks, and concluded that those difficulties did not severely
restrict his ability to engage in those major life activities. See Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (explaining that a “substantially
limiting” impairment is one that “prevents or severely restricts the individual from
doing activities that are of central importance to most people’s daily lives”). The
district court applied the correct legal standard—whether McClure is substantially
limited in the performance of one or more major life activity—and considered
major life activities that McClure identified in his briefing to the lower court.
Thus, the district court’s consideration of McClure’s ability to work (which
McClure never claimed was substantially limited by his impairment) was
immaterial.
4. There is no doubt that McClure performs the major life activities of caring for
himself, eating, engaging in sexual relations in a different manner, under different
conditions, and using more time than the average individual in the general
3 population. But the evidence does not show that these differences rise to the level
of severe restrictions. A “mere difference” in the manner, condition, and duration
of an individual’s performance of a major life activity cannot establish that an
individual is disabled; there must be a “significant restriction” of an individual’s
performance of a major life activity. See Albertson’s, Inc. v. Kirkingburg, 527
U.S. 555, 565-66 (1999).
5. In this regard, courts must consider how each impaired individual seeking relief
under the ADA performs major life activities, and “mitigating measures must be
taken into account in judging whether an individual possesses a disability.” Id. at
565. There is “no principled basis for distinguishing between measures
undertaken with artificial aids, like medications and devices, and measures
undertaken, whether consciously or not, with the body’s own systems.” Id. at 565-
66; see also Sutton v. United Air Lines, Inc.. 527 U.S. 471, 488 (1999) (finding
that severely myopic petitioners were not significantly restricted in seeing because
they used corrective lenses); Murphy v. United Parcel Serv., Inc., 527 U.S. 516,
521 (1999) (finding that the petitioner was not substantially limited in any major
life activity where his high blood pressure was controlled by medication).
McClure has adapted how he bathes, combs his hair, brushes his teeth, dresses,
eats, and performs manual tasks by supporting one arm with the other,
repositioning his body, or using a step-stool or ladder. The district court’s
4 determination that the variations and interferences that McClure experiences in
performing these activities are minor is fully supported by the record, including
McClure’s own briefing to the district court (which noted that “[b]ecause McClure
has lived with muscular dystrophy his entire adult life, he has successfully learned
to live and work with his disability, and to adapt himself accordingly”).
McClure’s ability to overcome the obstacles that life has placed in his path is
admirable. In light of this ability, however, we cannot say that the record supports
the conclusion that his impairment substantially limits his ability to engage in one
or more major life activities.
6. Even if McClure does not suffer from a disability as defined by the ADA, he may
still qualify for the Act’s protections if GM “regarded” him as disabled. See
McInnis v. Alamo Community College Dist., 207 F.3d 276, 281 (5th Cir. 2000).
McClure contends he was “regarded as” disabled because General Motor’s Plant
Medical Director Dr. Karl Kuipers treated him as having an impairment that
substantially limits his ability to work when in fact his impairment does not so
limit his ability to work.
7. An individual must be regarded as precluded from more than a particular job in
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United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS June 30, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk
No. 03-10126 Summary Calendar
CAREY MCCLURE,
Plaintiff-Appellant,
versus
GENERAL MOTORS CORPORATION,
Defendant-Appellee.
Appeal from the United States District Court for the Northern District of Texas (USDC No. 4:01-CV-878-A) _______________________________________________________
Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.
PER CURIAM:*
Carey McClure, who suffers from a rare form of muscular dystrophy affecting the
muscles in his upper arms and shoulders, appeals the district court’s grant of summary
* 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. judgment in favor of General Motors Corporation on his claim of employment
discrimination under the Americans With Disabilities Act (ADA). See 42 U.S.C. §
12101 et seq. The district court concluded that McClure could not assert a claim under
the ADA because the evidence does not establish that he is disabled or that General
Motors regarded McClure as disabled. We affirm for the following reasons.
1. We review the district court's summary judgment rulings de novo, applying the
same standard as the district court. Blanks v. Southwestern Bell Communs., Inc.,
310 F.3d 398, 400 (5th Cir. 2002). In making the ultimate determination of
whether summary judgment was proper, the Court reviews the facts, and all
inferences drawn from those facts, in the light most favorable to the party
opposing the motion. Id.
2. “As a threshold requirement in an ADA claim, the plaintiff must, of course,
establish that he has a disability.” Waldrip v. General Elec. Co., 325 F.3d 652, 654
(5th Cir. 2003) (quoting Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758
(5th Cir. 1996)). The ADA defines “disability” as “a physical . . . impairment that
substantially limits one or more major life activities of [an] individual.” 42 U.S.C.
§ 12102(2)(A). There is a three-part test for applying this definition. Bragdon v.
Abbott, 524 U.S. 624, 631 (1998). A court must determine first whether the
individual alleging a violation of the ADA has an “impairment,” next whether the
activity on which he relies is a “major life activity,” and, if so, whether his
2 impairment “substantially limits” that major life activity. Id.
3. McClure argues that the district court erred by employing the wrong legal standard
to determine whether he is disabled under the ADA and by focusing on whether
his impairment substantially limits his ability to work without considering other
major life activities. We disagree. The district court’s opinion indicates that it
considered the difficulties McClure experiences caring for himself, eating, and
performing manual tasks, and concluded that those difficulties did not severely
restrict his ability to engage in those major life activities. See Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002) (explaining that a “substantially
limiting” impairment is one that “prevents or severely restricts the individual from
doing activities that are of central importance to most people’s daily lives”). The
district court applied the correct legal standard—whether McClure is substantially
limited in the performance of one or more major life activity—and considered
major life activities that McClure identified in his briefing to the lower court.
Thus, the district court’s consideration of McClure’s ability to work (which
McClure never claimed was substantially limited by his impairment) was
immaterial.
4. There is no doubt that McClure performs the major life activities of caring for
himself, eating, engaging in sexual relations in a different manner, under different
conditions, and using more time than the average individual in the general
3 population. But the evidence does not show that these differences rise to the level
of severe restrictions. A “mere difference” in the manner, condition, and duration
of an individual’s performance of a major life activity cannot establish that an
individual is disabled; there must be a “significant restriction” of an individual’s
performance of a major life activity. See Albertson’s, Inc. v. Kirkingburg, 527
U.S. 555, 565-66 (1999).
5. In this regard, courts must consider how each impaired individual seeking relief
under the ADA performs major life activities, and “mitigating measures must be
taken into account in judging whether an individual possesses a disability.” Id. at
565. There is “no principled basis for distinguishing between measures
undertaken with artificial aids, like medications and devices, and measures
undertaken, whether consciously or not, with the body’s own systems.” Id. at 565-
66; see also Sutton v. United Air Lines, Inc.. 527 U.S. 471, 488 (1999) (finding
that severely myopic petitioners were not significantly restricted in seeing because
they used corrective lenses); Murphy v. United Parcel Serv., Inc., 527 U.S. 516,
521 (1999) (finding that the petitioner was not substantially limited in any major
life activity where his high blood pressure was controlled by medication).
McClure has adapted how he bathes, combs his hair, brushes his teeth, dresses,
eats, and performs manual tasks by supporting one arm with the other,
repositioning his body, or using a step-stool or ladder. The district court’s
4 determination that the variations and interferences that McClure experiences in
performing these activities are minor is fully supported by the record, including
McClure’s own briefing to the district court (which noted that “[b]ecause McClure
has lived with muscular dystrophy his entire adult life, he has successfully learned
to live and work with his disability, and to adapt himself accordingly”).
McClure’s ability to overcome the obstacles that life has placed in his path is
admirable. In light of this ability, however, we cannot say that the record supports
the conclusion that his impairment substantially limits his ability to engage in one
or more major life activities.
6. Even if McClure does not suffer from a disability as defined by the ADA, he may
still qualify for the Act’s protections if GM “regarded” him as disabled. See
McInnis v. Alamo Community College Dist., 207 F.3d 276, 281 (5th Cir. 2000).
McClure contends he was “regarded as” disabled because General Motor’s Plant
Medical Director Dr. Karl Kuipers treated him as having an impairment that
substantially limits his ability to work when in fact his impairment does not so
limit his ability to work.
7. An individual must be regarded as precluded from more than a particular job in
order to establish that he was treated a having an impairment that substantially
limits one’s ability to work. See Murphy, 527 U.S. at 523 (“When referring to the
major life activity of working, the EEOC defines ‘substantially limits’ as:
5 ‘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.’”) (quoting 29 C.F.R. § 1630.2(j)(3)(ii));
see also Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 508 (5th Cir. 2003).
8. McClure places great emphasis on Kuipers’s admission that he was not aware of
the essential functions of the job GM had offered to McClure when he
permanently deferred McClure’s employment with GM after a post-offer/pre-
employment physical. This testimony is insufficient to raise an issue of material
fact regarding whether McClure was “regarded as” disabled because it does not
suggest that Dr. Kuipers regarded McClure as disabled from more than one
particular job. In his deposition, Dr. Kuipers gave two reasons for recommending
that GM withdraw McClure’s offer of employment. First, he felt McClure
exhibited a careless disregard for his and others’ safety based on his responses to
Dr. Kuiper’s questions regarding how he would accomplish above-shoulder work.
This does not suggest that Dr. Kuipers believed that McClure’s impairment
significantly limits his ability to perform a class or broad range of jobs. Second,
Dr. Kuipers felt that McClure would not be able to perform all of the functions of
an electrician at the Arlington plant. Although Dr. Kuipers was not aware of the
essential functions of the position, he was aware that General Motors was building
a body shop facility at the Arlington plant and that General Motors was hiring
6 electricians to work on the construction of the body shop. Dr. Kuipers was
concerned with McClure’s ability to perform overhead electrical work in the body
shop, specifically changing light fixtures or repairing a wire conduit at the ceiling.
This testimony suggests only that Dr. Kuipers was concerned with McClure’s
ability to perform the work of an electrician at General Motors’s Arlington plant; it
does not create an issue of material fact as to whether Kuipers considered McClure
disabled from working as an electrician altogether or from any other class or broad
range of jobs.
9. We note that McClure complains that “if one who suffers from undisputed
muscular dystrophy is not an individual with a disability under the ADA,” then the
statute is rendered meaningless. McClure’s complaint is with the Supreme Court’s
interpretation of the ADA, for under that Court’s precedent he was required to
produce evidence that the extent of the limitations caused by his muscular
dystrophy in terms of his own experience is substantial. See Kirkinburg, 527 U.S.
at 567. His failure to do so precludes this court from reversing the district court’s
grant of summary judgment.
AFFIRMED.