                          UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT
                           ___________________________________

                                       No. 98-30899
                           ___________________________________

                                      Oscar Lavan Merritt,

                                                     Plaintiff-Appellant,

                                                v.

                                   Boise Cascade Corporation,

                                                     Defendant-Appellee.

                           ___________________________________

                          Appeal from the United States District Court
                             for the Western District of Louisiana
                                         (97-CV-440)
                          ___________________________________

                                       December 20, 1999

Before KING, Chief Judge, REYNALDO G. GARZA, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

       Appellant Oscar Lavan Merritt (“Merritt”) appeals the district court’s grant of summary

judgment to appellee, Boise Cascade Corporation (“Boise”). Merritt brought suit under the

Section 794(a) of the Rehabilitation Act, 29 U.S.C. § 793, and under the Louisiana Employment

Discrimination Law, La. R.S. 23:301, et seq. Both claims require determining whether Merritt

was an individual with a disability as defined by the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12112(a). Because the summary judgment evidence does not establish that Merritt was

       1
           Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.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.
                                                                                                       2

disabled, we affirm the district court’s order, dismissing his claims under both acts.

                                                  I.

       Merritt was a maintenance employee for Boise. He suffered a back injury on the job

resulting in surgery. Merritt’s treating physician allowed Merritt to return to work after a

recuperative period and subject to a 25/50 pound weight restriction. Merritt returned to full-time

work on July 26, 1994. Boise allowed Merritt to slowly return to his normal workday, permitting

Merritt to work in the mechanic’s repair shop and to come to work late and leave early to

accommodate his pain and endurance. Boise allowed Merritt to continue on this schedule until

March 6, 1996. Around that time Boise received a number of complaints from other workers that

Merritt was not completing his work. After receiving reports from the independent physician and

Merritt’s treating physician that Merritt could return to full duty, Merritt’s supervisor told Merritt

that he would have to return to his regular work schedule subject to the stated lifting restriction.

Merritt protested that he would not be able to work regular hours due to his pain and the side

effects of pain medicine. Cascade then terminated Merritt’s position for his failure to perform the

job. Merritt brought suit asserting the State and Federal claims discussed above. Cascade then

filed a motion for summary judgment based on, inter alia, the fact that Merritt was not disabled

under the ADA. The district court granted the motion for summary judgment and Merritt

appeals.

       An order granting summary judgment is reviewed de novo, Dutcher v. Ingalls

Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995).

                                                  II.

       The starting point for both of Merritt’s claims is whether Merritt was an individual with a
                                                                                                    3

disability under the definition of the ADA. An individual with a disability is defined as “any

person who has a physical or mental impairment which substantially limits one or more of such

persons’ major life activities, or has a record of such an impairment, or is regarded as having such

an impairment.” 42 U.S.C. § 12112(a); La. R.S. 23:322(3). Both parties agree that Merritt had a

physical impairment. Boise maintains, however, that Merritt’s impairment did not substantially

limit one of his major life activities, and that Merritt had no record of such an impairment nor was

he regarded as having such an impairment.

        The ADA does not define the phrase “substantially limits.” However, the regulations

promulgated by the Equal Employment Opportunity Commission (“EEOC”) implementing the

ADA provide guidance. The district court relied on the following EEOC definition of

“substantially limits:”

       (I) Unable to perform a major life activity that the average person in the general
population can perform; or

       (ii) Significantly 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.

45 C.F.R. § 1630.2(j)(1)

The following factors are considered in determining whether an individual is limited in a major life

activity:

        (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.

45 C.F.R. § 1630.2(j)(1-2). See also Dutcher, 53 F.3d 723 (5th Cir. 1995).
                                                                                                      4

       “Major life activities” are “functions such as taking care of one’s self, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” La. R.S. 23 § 322

(7). “This listing is not intended to be exhaustive. Other major life activities could include lifting,

reaching, sitting, or standing.” Dutcher, 53 F.3d at 726 n.7.

       The court must first address whether the plaintiff’s impairment substantially limits a major

life activity other than working. Id. at 726. Merritt presented affidavits from two doctors in

support of his contention that he was substantially limited in one or more major life activities.

Boise presented deposition testimony in which Merritt agreed that he was able to take care of

himself after surgery and that he had been on several hunting trips in Colorado in the past year.

       The district court concluded that based on the entirety of the evidence, Merritt did not

have an impairment that substantially limited one or more major life activities other than working.

We agree. Although there is evidence showing that Merritt endured some pain in performing

everyday activities, Merritt testified that he was able to care for himself, perform manual tasks,

work, travel substantial distances, and hunt.

       The district court also found that Merritt was not substantially limited in performing the

major life activity of working. At Boise’s request, a functional capacity examination and job

analysis was conducted by Dr. Phillip Osborne. Dr. Osborne concluded that Merritt could return

to full-time work subject to a maximum lift of no more than 50 pounds and frequent lifting of no

more than 25 pounds. Merritt’s then attending physician, Dr. Jorge Martinez, concurred with Dr.

Osborne’s conclusions.

       In the context 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
                                                                                                        5

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). The district court concluded that the only restriction of

which Cascade was aware prior to Merritt’s termination was a lifting restriction. Such a lifting

restriction alone does not constitute a substantial limitation on the major life activity of working.

Sherrod v. American Airlines, 132 F.3d 1112, 1120 (5th Cir. 1998).

                                                   II.

        Merritt alternatively alleges that he “had a record of such an impairment” or was

“regarded as having such an impairment” by Boise. This means that “the plaintiff must show that

at some point in the past, “[he] was classified or misclassified as having a mental or physical

impairment that substantially limits a major life activity.” Sherrod at 1120-21, citing Burch v.

Coca-Cola Co., 119 F.3d 305, 321 (5th Cir. 1997). To show that he “was regarded as having

such an impairment,” Merritt must show that Boise regarded Merritt as significantly restricted in

his ability to perform a class or a broad range of jobs. Bridges v. City of Bossier, 92 F.3d 329,

332 (5th Cir. 1996). The district court found that while Merritt may have been regarded as

having an impairment, his impairment was not regarded as substantially limiting any of his major

life activities. We agree.

        At the time of Merritt’s termination, there was no medical evidence before Boise stating

that Merritt needed a flexible work schedule. Merritt contends that Boise regarded Merritt as

disabled because Boise allowed Merritt to work a flexible schedule for 18 months. However, as

the Seventh Circuit aptly stated an employer “must not be punished for its generosity by being

deemed to have conceded the reasonableness of so far-reaching an accommodation,” Vande
                                                                                                       6

Zande v. State of Wisconsin Dept. of Admin., 44 F.3d 538, 545 (7th Cir. 1995). Boise

accommodated Merritt after he had returned to work full-time far longer and more fully than any

medical evidence suggested it needed to accommodate him. Based on Boise’s independent

evaluation of Merritt and the fact that Merritt’s attending physician agreed with the evaluation’s

results, Boise concluded that Merritt could work full-time, subject only to lifting restriction. As

stated previously, a lifting restriction in and of itself does not constitute a disability under the

ADA. Sherrod, 132 F.3d at 1120. Thus, Boise’s own evaluation of Merritt prevented Boise from

“regarding Merritt as disabled” within the meaning of the ADA.

                                            CONCLUSION

        Merritt failed to show that he was an individual with a disability under the ADA. This

element is essential to his claims under both Section 794(a) of the Rehabilitation Act, 29 U.S.C. §

793 and under the Louisiana Employment Discrimination Law, La. R.S. 23:301, et seq.

Therefore, the order of the district court is AFFIRMED.
