IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
_____________________
No. 99-30748 _____________________
ELZADIA MILLER,
Plaintiff-Appellant,
versus
BELLSOUTH BUSINESS SYSTEMS, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Western District of Louisiana (98-CV-2039) _________________________________________________________________ March 14, 2000
Before JOLLY and DENNIS, Circuit Judges, and DAVID D. DOWD,* District Judge.
PER CURIAM:** After reviewing the record and the district court’s memorandum
ruling, we find no reversible error in the district court’s
judgment holding that the plaintiff failed to create a genuine
issue of material fact with respect to whether she was
substantially limited in the major life activity of working. See
Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995).
Furthermore, we find the district court’s opinion to be completely
* District Judge of the Northern District of Ohio, sitting by designation. m 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 consistent with our precedent. See Sherrod v. American Airlines,
Inc., 132 F.3d 1112, 1120 (5th Cir. 1998)(stating that evidence
establishing that the plaintiff cannot perform one particular job
is “insufficient for a reasonable jury to find a substantial
limitation on a major life activity”); Price v. Marathon Cheese
Corp., 119 F.3d 330, 336 (5th Cir. 1997)(stating that because
plaintiff worked prior to her discharge, and because “she testified
that she believed she was capable of doing other jobs;” she was not
“disabled” within the meaning of the ADA); Ellison v. Software
Spectrum, Inc., 85 F.3d 187, 191 (5th Cir. 1996)(stating that
despite the fact that plaintiff’s “ability to work was affected, .
. . far more is required to trigger coverage under [the ADA]”);
Dutcher, 53 F.3d at 723; and Chandler v. City of Dallas, 2 F.3d
1385 (5th Cir. 1993).
The judgment of the district court is
A F F I R M E D.
2 Dennis, Circuit Judge, dissenting.
Elzadia Miller was employed by South Central Bell and related
companies for over twenty years. She worked as a service order
typist and a service order writer beginning in 1972. In July 1991
she injured her wrists and hands. In May 1992, as a result of
these injuries, her doctors permanently restricted her from
performing certain types of work involving fine gripping and
repetitive motion work on computers and typewriters. In May 1993,
her medical restrictions were modified to restrict her from more
than an occasional use of office equipment that would require
holding her hands in a fixed position. Miller returned to light
duty work in October 1993. In the first quarter of 1994, Miller’s
employer eliminated the position of service order writer in
Louisiana as well as in other states. Miller was offered the
option of moving to Baton Rouge or New Orleans and being promoted
to a service representative. She declined to leave Shreveport and
entered the company’s job bank, which enabled her to receive
termination pay at her regular monthly rate of pay spread over a
period of several months while continuing to receive preferential
consideration for vacancies in equal or lower rated jobs that might
become available. No such vacancies occurred in the Shreveport
area.
In response to this suit by Miller against BellSouth alleging
violations of the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12117, et seq., BellSouth moved for summary judgment,
contending that Miller could not establish a prima facie case of
3 disability discrimination because, among other reasons, she is not
an individual with a disability. Miller filed an opposition to
which BellSouth replied. Miller attached brochures for a variety
of voice input computer systems to her opposition. She asserted
that these systems could have allowed BellSouth to adequately
accommodate her disability.
The district court granted BellSouth’s motion for summary
judgment on the ground that Miller had failed to show that there
was a genuine dispute as to the crucial threshold issue of fact,
viz., whether Miller’s impairment significantly restricts her
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. See 29 C.F.R. §
1630.2(j)(3). The summary judgment record, including Miller’s
affidavit and deposition testimony, establishes without dispute
that Miller’s impairment prevented her from typewriter and computer
and keyboard use as well as more than an occasional use of any
office equipment that would require holding her hands in a fixed
position. Miller contended that her opposition evidence was
sufficient to defeat summary judgment because (1) it established
that typing was virtually always the primary aspect of her work for
her employer for over twenty years and (2) that her inability to
perform typewriter, computer and other keyboard and office machine
work significantly restricts her in the ability to perform a class
of jobs and a broad range of jobs in various classes as compared to
the average person having comparable training, skills and abilities
4 to her own; that, in fact, her training, knowledge and skills
restrict her to jobs that she can no longer perform because of her
impairment. The district court, however, found her opposition
insufficient because: “There is no evidence, other than Miller’s
own testimony and her medical restrictions, concerning her ability
to perform her job duties....[She] offers no affidavits or other
methods of proof regarding her assertions beyond her conclusory
allegations. Furthermore, ‘[t]he inability to perform one aspect
of a job while retaining the ability to perform the work in general
does not amount to a substantial limitation of the activity of
working.’” (citing Dutcher v. Ingalls Shipbuilding, 53 F.3d 723,727
(5th Cir. 1995)); see also 29 C.F.R. § 1630.2(j)(3); Sherrod v.
American Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998);
Ellison v. Software Spectrum, Inc., 85 F.3d 187, 191 (5th Cir.
1996).
To determine whether an impairment rises to the level of a
"disability" as defined by the ADA, courts use a two-step analysis:
first, they consider whether the impairment substantially limits a
major life activity other than working, and second, they consider
whether the impairment substantially limits the plaintiff in
working. See, e.g., Dutcher, 53 F.3d at 726, n.10; Love v. City of
Dallas, 1997 WL 278126 *4 (N.D. Tex. 1997)(Buchmeyer, C.J.). In
this appeal, Miller does not argue that her impairment has any
effect on any activity other than her work. Accordingly, this
court need only consider whether Miller presented sufficient
5 evidence to create a genuine issue of fact as to whether her
impairment substantially limits her in working.
With regard to the activity of working:
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.
29 C.F.R. § 1630.2(j)(3)(i); see also Dutcher, 53 F.3d at 727.
This Circuit has stated that three other factors can be considered
when determining whether an impairment substantially limits 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
types of other jobs not utilizing similar training,
6 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).
Dutcher, 53 F.3d at 727, n. 13 (citing 29 C.F.R. §
1630.2(j)(3)(ii)(A)-(C)).
In my opinion, Miller has created a fact issue for the jury as
to whether she is substantially restricted in her ability to
perform a class of jobs or a broad range of jobs in various classes
due to her impairment. Therefore, I cannot agree that summary
judgment was correctly rendered against Miller on the issue of
whether her impairment constitutes a "disability" under the ADA.
The district court, in effect, adopted a standard of proof in
ADA cases that is unprecedented in this Circuit and has
overwhelmingly been rejected by other circuits. In essence, the
district court held that, because Miller provided no quantitative
evidence detailing the relevant job market, no reasonable juror
could conclude that she was significantly restricted in her ability
to perform either a class or a broad range of jobs. The statute,
regulations and case law do not require quantitative evidence of
the sort the district court seems to demand for an ADA plaintiff’s
prima facie case of disability.
This court has not required a plaintiff to present vocational
experts at the summary judgment stage to assess the number and
types of jobs utilizing similar training, knowledge, skills or
abilities within the plaintiffs geographic area. Although this
7 court in Dutcher did list such factors as factors that "can be
considered" by a court, the factors are not required to enable a
plaintiff to survive summary judgment when the plaintiff, through
other evidence, can make out a fact issue as to whether he or she
was substantially limited in his or her ability to perform a class
of jobs.
The correct interpretation of the EEOC guideline and our
Dutcher opinion is that the factors listed in 29 C.F.R. §
1630.2(j)(3)(ii) are factors that "may be considered" "[i]n
addition to" the nature, severity, duration, and impact of the
impairment. “If either party chooses to use those factors to
bolster its case, such evidence is relevant; however, neither party
must present such evidence, and such evidence is not a part of the
plaintiff's burden of production. Thus, a plaintiff (as in the
instant case) can create a fact issue as to whether he or she has
a disability without reference to those factors if the plaintiff
presents other sufficient evidence that he or she has a
disability.” Love, 1997 WL 278126 at *6, n.2.
Of course, a plaintiff cannot establish that she is
substantially limited in her ability to work simply by showing an
impairment to her performance of one particular job. See Sutton v.
United Airlines, Inc., 527 U.S. 471, 119 S.Ct. 2139, 2151 (1999).
It is not required, however, that ADA plaintiffs prove a negative,
viz., that almost all jobs are outside their reach in order to
avoid summary judgment or a judgment as a matter of law. See
DePaoli v. Abbott Labs., 140 F.3d 668, 672 (7th Cir. 1998) ("[A]n
8 employer cannot avoid liability by showing that the employee is
still generally capable of doing some economically valuable work in
the national economy..."). Rather, a plaintiff is only required to
present "at least some evidence from which one might infer that
[she] faced 'significant restrictions' in her ability to meet the
requirements of other jobs." Davidson v. Midelfort Clinic, Ltd.,
133 F.3d 499, 507 (7th Cir. 1998) (describing what plaintiff must
do to defeat a motion for summary judgment); see also Duncan v.
Washington Metropolitan Area Transit Authority, 201 F.3d 482, 490-
91 (D.C. Cir. 2000) (Edwards, C.J., dissenting); Swain v.
Hillsborough County Sch. Bd., 146 F.3d 855, 858 (11th Cir. 1998)
("Although a plaintiff seeking recovery under the ADA is not
required to provide a comprehensive list of jobs which she cannot
perform, the person must provide some evidence beyond the mere
existence and impact of a physical impairment to survive summary
judgment.") (citing Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th
Cir. 1995); Dutcher, 53 F.3d at 727-28; Bolton v. Scrivner, Inc.,
36 F.3d 939, 942-44 (10th Cir. 1994)).
As Chief Judge Edwards observed in his dissenting opinion in
Duncan:
Most of the decisions from our sister circuits have found
a triable issue of fact regarding a plaintiff's
disability without even mentioning quantitative evidence
detailing the relevant job market. See Mustafa v. Clark
County Sch. Dist., 157 F.3d 1169, 1175 (9th Cir. 1998)
(per curiam) (finding that plaintiff was substantially
9 limited in his ability to work because of depression,
post-traumatic stress disorder, and panic attacks, while
referring to no quantitative vocational evidence); Cehrs
v. Northeast Ohio Alzheimer's Research Ctr., 155 F.3d
775, 781 (6th Cir. 1998) (finding genuine issue of
material fact regarding whether plaintiff's psoriasis
substantially limited her ability to work with no
reference to evidence regarding job availability); Baert
v. Euclid Beverage, Ltd., 149 F.3d 626, 630 (7th Cir. 1998) (finding
plaintiff's evidence sufficient to overcome summary judgment where
he testified to potential hospitalization due to insulin-dependent
diabetes); Criado v. IBM Corp., 145 F.3d 437, 442 (1st Cir. 1998)
(finding, in affirming district court's denial of employer's motion
for a judgment as a matter of law, that the jury could have
reasonably concluded that plaintiff's depression, testified to by
plaintiff and physician, "substantially impaired the major life
activity of working," while referring to no evidence regarding
classes of jobs for which she was disqualified); Cline, 144 F.3d at
303-04 (finding a jury verdict of intentional discrimination under
the ADA supportable where plaintiff showed that he was disqualified
from maintenance supervisory work, and where the court made no
mention of vocational evidence); Gilday v. Mecosta County, 124 F.3d
760, 765 (6th Cir. 1997) (finding sufficient evidence to create a
question of fact as to whether plaintiff's diabetes is a disability
under the ADA because plaintiff's condition made him irritable and
unable to cooperate with co-workers, an ability "necessary for all
10 but the most solitary of occupations," without reference to
quantitative vocational evidence); Best v. Shell Oil Co., 107 F.3d
544, 548 (7th Cir. 1997) (finding that summary judgment for
defendant was improper even though the record did not show how many
jobs plaintiff was disqualified from because of the impairment);
Roush v. Weastec, Inc., 96 F.3d 840, 844 (6th Cir. 1996) (finding
a genuine issue of material fact as to whether bladder infection
resulted in a substantial limitation of working with no reference
to testimony about job market); Pritchard v. Southern Co. Svcs., 92
F.3d 1130, 1134 (11th Cir. 1996) (finding sufficient evidence for
the case to go to the jury where an engineer suffered symptoms of
"marked fatigue, lack of energy, lack of interest, poor
concentration, memory problems, suicidal thoughts, depressed
affect, and irritability" that limited her ability to work in
nuclear engineering, even though she was able to work as a
non-nuclear engineer).
Duncan, 201 F.3d at 493-494 (Edwards, C.J., dissenting).
The present case is not one in which the plaintiff’s
impairment disables her from performing one aspect of a job while
retaining the ability to perform the work in general. See Sherrod,
132 F.3d at 1120 (medical restrictions on heavy lifting
disqualified plaintiff for the position of flight attendant but not
a class of jobs or broad range of jobs); Ellison, 85 F.3d at 191
(cancer treatment affected but did not significantly restrict
employee in continuing to work); Dutcher, 53 F.3d at 727 (welder
continued to work for the same employer as a non-climbing welder,
11 although her ability as a climbing welder was impaired); see also
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999)(myopic pilots
were neither disabled (because their impairments were fully
correctable with visual devices) nor regarded as disabled, although
airline refused to hire them as global pilots (because global pilot
is a single job and other pilot positions were available to them,
such as regional pilot and pilot instructor)).
Nor is the present case an obvious situation in which the
plaintiff failed to allege exclusion from a sufficiently broad
class of jobs. See Zenor v. El Paso Healthcare Sys., Ltd., 176
F.3d 847, 861 (5th Cir. 1999) (finding position of pharmacist not
to be a class of jobs); Bridges v. City of Bossier, 92 F.3d 329,
334-36 (5th Cir. 1996) (finding that the category of firefighting
jobs is not a "class of jobs"); Muller v. Costello, 187 F.3d 298,
313 (2d Cir. 1999) (stating that the category of "correctional
officer" was not a "class of jobs" under the ADA); Patterson v.
Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 725-26 (7th Cir.
1998) (finding insufficient evidence of a substantial limitation
where plaintiff was only disqualified from one sort of teaching
position); Daley v. Koch, 892 F.2d 212, 215 (2d Cir. 1989) ("Being
declared unsuitable for the particular position of police officer
is not a substantial limitation of a major life activity."); cf.
Duncan v. Washington Metropolitan Area Transit Authority, 201 F.3d
482, 488-89 (D.C. Cir. 2000)(Transit authority employee’s back-
related 20-pound lifting restriction insufficient to show
substantial limitation on ability to work).
12 Keyboard work on typewriters, computers, and similar office
equipment was the primary aspect and core function of Miller’s
work. Although the plaintiff has not provided detailed evidence of
her educational background, training, or qualifications for other
jobs, she has demonstrated that for over twenty years she has done
nothing but secretarial or clerical work in which typewriter and
computer keyboard labor was the main essential physical element;
and that she cannot perform the jobs she had been doing most of her
life or any other comparable job that would require full-time
typing or keyboard work or more than occasional use of any office
equipment requiring a fixed hands position. It is not subject to
reasonable dispute and is generally known within the territorial
jurisdiction of the trial court that in Shreveport, Louisiana, and
cities of its size, secretarial and clerical jobs requiring
skillful performance of keyboard work on typewriters, computers and
similar office equipment is both a major class of jobs and a broad
range of jobs in various classes.
Because the summary judgment cannot be legitimately affirmed
on the basis upon which it was granted, I respectfully dissent from
the majority’s summary affirmation.