                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT



                           No. 99-60390
                         Summary Calendar

                        SAMUEL L. MITCHELL,

                                                Plaintiff-Appellant,

                              VERSUS

                        WARING OIL COMPANY,

                                                Defendant-Appellee.


          Appeal from the United States District Court
            for the Southern District of Mississippi
                       USDC No. 3:98cv157
                         January 31, 2000
Before SMITH, BARKSDALE and PARKER, Circuit Judges.
PER CURIAM:*

     Plaintiff-Appellant Samuel L. Mitchell (“Mitchell”) brought

suit claiming that he was discharged from his employment with

Defendant-Appellee Waring Oil Company (“Waring”) in violation of

the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101-

12213 (1995) (“ADA”).   Mitchell now appeals the district court’s

grant of summary judgment in favor of Waring.    We affirm.

     Mitchell was employed by Waring as a convenience store clerk

from June, 1996 to December, 1996.     In late November, 1996, a

supervisor asked Mitchell to change an overhead air filter in the


     *
      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this opinion should not be published and is not precedent except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.

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store.    Mitchell declined, explaining that he could not raise his

left elbow above his shoulder.2           When Mitchell declined a second

request that he change the filter, he was terminated.

      Mitchell    filed   suit,   claiming,      inter   alia,      that   he   was

discharged “because of his disability or perceived disability.”

The district court granted summary judgment to Waring because

Mitchell’s case failed on the threshold issue of showing that he

suffers from, or was perceived by defendant to suffer from, a

disability cognizable under the ADA.

      The term “disability” is defined by the ADA as:

      (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)(1995).         Mitchell conceded in district court

that his inability to fully raise his left arm does not constitute

an   impairment   which   “limits    one    or   more    of   the    major      life

activities” as contemplated by the ADA. However, he contended that

he was “regarded as having such as impairment.”               In order to make

a prima facie showing of a disability under the “regarded as”

prong, a plaintiff must produce enough evidence for a reasonable

trier of fact to conclude that the plaintiff was perceived by the

defendant as having an impairment which, if it existed as perceived


      2
      Plaintiff had been diagnosed with a “probable rotator cuff
tear,” although it is disputed whether the doctor’s note setting
out the diagnosis was furnished to the defendant before Mitchell’s
termination.

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by the defendant, would have substantially limited one or more of

the plaintiff’s major life activities.          See Deas v. River West,

L.P., 152 F.3d 471, 476 (5th Cir. 1998).             The district court

concluded that the summary judgment evidence did not create a

genuine issue of fact concerning whether Waring perceived Mitchell

as having a substantially limiting impairment.

     On appeal, Mitchell contends that the district court erred in

granting summary judgment to Waring because the record contains

evidence that Waring asked Mitchell questions prohibited by the ADA

prior to offering him employment and later used the answers as a

basis for his dismissal.       Waring’s application contained the

following language:

     While physical disabilities do not prevent your
     employment with this company, you may be required to
     carry out some tasks that involve physical activity.
     Because of this please answer the following questions:

           Lifting of items up to 35 lbs. may be required
           in the course of your employment.      Are you
           able to do so? If no, please explain.

           Constant    physical    activity    (assisting
           customers, stocking shelves, cleaning store
           and property, etc.) is necessary.      Are you
           able to be physically active the entire shift?
           If no, please explain.

These questions are not prohibited by ADA. Employers may make pre-

employment inquiries concerning an applicant’s ability to perform

specific   job   functions.   See       EEOC   Interpretive   Guidance,   §

1630.14(a).      Therefore, Mitchell’s contention that the use of

“improper” preemployment questions is evidence of an ADA violation

is without merit.

     Mitchell next contends that the written notice Waring gave him

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prior to termination, as well as the termination notice itself,

gives rise to a fact question on his allegations that Waring

regarded him as having a cognizable impairment.        Specifically, the

warning   states,   “On   your   application,   you   did   not   show   any

disabilities.    Therefore you should be able to perform all job

duties that are required.”       Similarly, on his termination notice,

Waring notes that Mitchell “said on application there were no

disabilities.”      First,   these   notices    unequivocally     take   the

position that Mitchell has no disability.        Further, the use of the

term “disability” by Waring in this correspondence does not evoke

the specialized definition set out in the ADA.         We therefore find

no error in the district court’s conclusion that there was no

genuine issue of material fact on the question of whether Waring

regarded Mitchell as having a disability cognizable under the ADA.

     For the foregoing reasons, the district court’s grant of

summary judgment for Waring is affirmed.

     AFFIRMED.




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