                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                         _____________________

                              No. 95-10704
                         _____________________

                           PHYLLIS ELLISON,

                                                   Plaintiff-Appellant,

                                   versus

                       SOFTWARE SPECTRUM, INC.,

                                                       Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                         (3:94-CV-2068-R)
_________________________________________________________________

                                May 30, 1996

Before BARKSDALE, DeMOSS, and PARKER, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

     Phyllis Ellison, who was treated for breast cancer, challenges

the summary judgment granted her employer, Software Spectrum, Inc.

(SSI),   on   her   Americans   with    Disabilities    Act   (ADA)   claim,

contending, inter alia, that a material fact issue exists on

whether she had the requisite "disability" under the ADA, 42 U.S.C.

§ 12102(2).    Concluding otherwise, we AFFIRM.

                                       I.

     In January 1992, Ellison was employed as a "returns person" in

SSI's Product Operations Department, after having worked there for

two years as a temporary employee.          The next January, when the

returns position was eliminated, Ellison became a salaried buyer in
the same department.      She received a six percent raise after her

January 1993 performance review.

     In August 1993, Ellison learned that she had breast cancer,

immediately    had   a   lumpectomy,   and    received   daily   radiation

treatment from mid-September through that October.           She did not

miss work while undergoing treatment but, at her request, SSI

allowed her to work on a modified schedule.        She arrived at work at

10:30 a.m. following her radiation therapy, skipped her lunch hour

and morning break, and took work home.          Improving steadily after

the treatment ended, Ellison felt "back to normal" by February

1994.

     Ellison received a lower evaluation on her January 1994

performance review, and received only a three percent raise; the

company average was five percent.      And, in early 1994, SSI decided

to reduce the number of employees in Ellison's department from 35

to 31, effective that April.     Three positions were eliminated, the

number of buyers was reduced from eight to six, and a returns

position was created.      John Logan, Ellison's supervisor, and Jim

Duster, Director of the Product Operations Department, evaluated

and ranked each of the 35 employees.      On March 2, Ellison and three

other employees were informed that they had 30 days to find other

positions in the company or leave.           A vacancy developed for the

returns position, however; based on her rating, Ellison was next in

line for it.   She was offered the position and accepted it in mid-

March.




                                  - 2 -
     Five months later, Ellison filed suit in state court against

SSI, claiming violations of the ADA and the Family Medical Leave

Act (FMLA), as well as intentional infliction of emotional distress

under state law.    After SSI removed the action to federal court,

Ellison amended her complaint to add an ERISA claim.             The district

court granted summary judgment for SSI on all but the FMLA claim,

and entered a Rule 54(b) judgment for the ADA, ERISA, and emotional

distress claims.

                                     II.

     Ellison contests the summary judgment only on her ADA claim.

As is well known, we review a summary judgment de novo, applying

the same     standard   as   the   district   court:   factual    issues     are

considered in the light most favorable to the nonmovant, and the

"judgment is proper when no issue of material fact exists and the

moving party is entitled to judgment as a matter of law".              Dutcher

v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995); FED. R.

CIV. P. 56.    "[T]he substantive law will identify which facts are

material", and "[a] dispute about a material fact is `genuine' ...

if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party". Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

     For the ADA claim, the court held that Ellison's breast cancer

was not a requisite "disability" within the meaning of the ADA.

Therefore, it did not rule on the other elements of that claim.

(Likewise,    because   we   conclude      that   summary   judgment    as   to

disability is proper, we need not reach those other elements,


                                    - 3 -
eliminating    also    the    sub-issue       of   whether     to   remand   for    the

district court to consider them first.)

     The ADA defines "disability" using three alternatives:

          (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).         It is undisputed that Ellison's cancer was

an "impairment".1      Because she claims that a material fact issue

exists for each of the three § 12102(2) alternatives, we will

examine each subpart in turn.

                                         A.

     Subpart     (A)         concerns     whether         Ellison's      impairment

"substantially    limit[ed]"       one     or      more   of    her    "major      life

activities".     Although the ADA does not define "substantially

limits" and "major life activities", the regulations promulgated by

the Equal Employment Opportunity Commission "provide significant

guidance".    Dutcher, 53 F.3d at 726.             They state that "[m]ajor life

1
     Regulations promulgated by the Equal Employment Opportunity
Commission define a physical impairment as:

               Any physiological disorder, or condition,
          cosmetic disfigurement, or anatomical loss
          affecting one or more of the following body
          systems:      neurological,    musculoskeletal,
          special sense organs, respiratory (including
          speech organs), cardiovascular, reproductive,
          digestive,     genito-urinary,     hemic    and
          lymphatic, skin, and endocrine ....

29 C.F.R. § 1630.2(h)(1).


                                        - 4 -
activities means functions such as caring for oneself, performing

manual   tasks,   walking,    seeing,    hearing,     speaking,         breathing,

learning, and working". 29 C.F.R. § 1630.2(i). In district court,

"working" is the only major life activity for which Ellison claimed

a substantial limitation.2

     The   regulations       provide     that     whether        an     impairment

substantially limits a major life activity is determined in light

of

                (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.

29 C.F.R. § 1630.2(j)(2).        And, for the major life activity of

"working", the regulations provide that

                (i) 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.

              (ii)    In addition to the factors listed in
           paragraph (j)(2) of this section [quoted
           above],   the    following   factors   may  be
           considered    in    determining   whether   an

2
     Here, as discussed infra in this part, Ellison asserts that
all major life activities would have been substantially limited, as
part of her contention that her cancer treatment is irrelevant to
whether the cancer was an ADA disability. As also discussed infra,
because this was not raised in district court, we do not consider
major life activities other than working.

                                  - 5 -
          individual is substantially limited in 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   disqualified    because   of   an
          impairment, and the number and types of other
          jobs   not    utilizing   similar    training,
          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).

29 C.F.R. § 1630.2(j)(3).     As hereinafter discussed, in light of

the statute and these regulations, a material fact issue does not

exist for this subpart.

     In support of its summary judgment motion, SSI submitted the

affidavit of Duster, the Product Operations Department director; he

stated that no special accommodations were necessary for Ellison,

and that at all times, she had demonstrated the physical and mental

ability to work.    SSI also submitted excerpts from Ellison's

deposition; she testified that the radiation treatment made her

nauseous and tired and she suffered an allergic reaction to the

radiation which caused painful swelling and inflammation, but that

the treatment did not affect her ability to do her job and she

never missed a day of work.   She testified further that her normal

workday was seven and one-half hours; that she was able to work


                                - 6 -
almost that amount while receiving treatment, by working from 10:30

a.m. until 6:00 p.m., with no lunch and only an afternoon break;

and that she improved steadily after the radiation treatment was

completed, and was back to normal in three or four months (by

February 1994).

     In opposition, Ellison submitted her physician's deposition;

he stated that cancer can cause death if not treated and causes

emotional    distress   from   the   fear    that    it   will   return.     She

submitted also the deposition of her former supervisor, Logan; he

stated that Ellison was not as effective at work, and that the

quality of her work suffered while she was receiving radiation

treatment.     And, in her affidavit, Ellison detailed the nausea,

fatigue, swelling, inflammation, and pain she experienced as a

result of the treatment and the medication she was given for her

allergic reaction to the radiation, but stated that, although she

constantly    felt   sick   and    fatigued,   she     "could    perform   [her]

essential job responsibilities ... so long as [SSI] allowed [her]

the accommodation of a modified work schedule so that [she] could

attend   appointments       with   [her]     doctors      and    receive   [her]

treatments".

     As stated, the summary judgment evidence, viewed in the light

most favorable to Ellison, does not create a material fact issue on

whether her cancer and treatment "substantially limited" her major

life activity of working.           Obviously, her ability to work was




                                     - 7 -
affected;   but,    as   reflected     in    the   above-quoted   statute     and

regulations, far more is required to trigger coverage under §

12102(2)(A).

     Along this line, Ellison contends that it is irrelevant both

that SSI made reasonable accommodations in her work schedule and

that her cancer was treated successfully.               In support, citing 29

C.F.R. Pt. 1630, App. § 1630.2(h) (the appendix is the EEOC's

"Interpretive      Guidance"     to   the    ADA),    she   asserts   that   "ADA

regulations require that the existence of one's disability be

determined without regard to the effects of mitigating measures

such as drugs or prosthesis", and maintains that acceptance of a

contrary    position     would    both      "punish   employees   for   seeking

reasonable accommodations in order to continue working instead of

taking medical leave" and "undermine the salutary purpose of the

ADA by discouraging, rather than encouraging, gainful employment".

     Ellison did not present this contention in district court;

therefore, we will not consider it.             See, e.g., Stults v. Conoco,

Inc., 76 F.3d 651, 657 (5th Cir. 1996) (internal quotation marks

and citation omitted) ("[a]lthough on summary judgment the record

is reviewed de novo, this court for obvious reasons, will not

consider evidence or arguments that were not presented to the

district court for its consideration in ruling on the motion").3

3
     As noted, the appendix is not part of the regulations, but is,
instead, the EEOC's interpretation of those regulations. See 29
C.F.R. Pt. 1630, App., Introduction. Furthermore, the part Ellison
relies on addresses impairment, not disability, stating that

            [t]he existence of an impairment is to be
            determined without regard to mitigating

                                      - 8 -
                                     B.

       Concerning subpart (B) of § 12102(2), Ellison maintains that

a material fact issue exists on whether she had a "record" of

having a substantially limiting impairment. The regulations state:

                  Has a record of such impairment means has
             a history of, or has been misclassified as
             having, a mental or physical impairment that
             substantially limits one or more major life
             activities.

29 C.F.R. § 1630.2(k).

       SSI   presented   the   affidavit   of    Celia    Boynton,    Employee

Relations Representative in its Human Resources Department; she

stated that nothing in Ellison's personnel file has ever indicated

that   she   was   substantially   limited      by   a   physical    or   mental

impairment either in her ability to perform her job or in any other


measures such as medicines, or assistive or prosthetic devices....
For example, an
individual with epilepsy would be considered to have an impairment
even if the symptoms of the disorder were completely controlled by
medicine.   Similarly, an individual with hearing loss would be
considered to have an impairment even if the condition were
correctable through the use of a hearing aid.

29 C.F.R. Pt. 1630, App. § 1630.2(h) (emphasis added). Again, it
is undisputed that Ellison's cancer was an impairment; but, "[a]
physical impairment, standing alone, is not necessarily a
disability as contemplated by the ADA [because t]he statute
requires an impairment that substantially limits one or more of the
major life activities". Dutcher, 53 F.3d at 726.

     We recognize, consistent with Ellison's contention, that App.
§ 1630.2(j) does provide that "[t]he determination of whether an
individual is substantially limited in a major life activity must
be made on a case by case basis, without regard to mitigating
measures such as medicines, or assistive or prosthetic devices".
29 C.F.R. Pt. 1630, App. § 1630.2(j). Arguably, on the other hand,
had Congress intended that substantial limitation be determined
without regard to mitigating measures, it would have provided for
coverage under § 12102(2)(A) for impairments that have the
potential to substantially limit a major life activity.

                                   - 9 -
respect.   Ellison did not present any evidence to counter that

affidavit. Moreover, contrary to the alternative position advanced

by   Ellison,   SSI's   acquiescence   in   her   modified   schedule   to

accommodate her treatment does not create a material fact issue on

whether she had the requisite record, in that she did not miss a

day of work and her ability to work was not substantially limited.

                                  C.

      Finally, Ellison relies upon subpart (C) ("regarded as having

such an impairment"), asserting that SSI's comments to, and about,

her create a material fact issue on whether it regarded her cancer

as a substantial limitation on her ability to work.             The EEOC

regulations define "regarded as having such an impairment" as

follows:

                (1) Has a physical or mental impairment
           that does not substantially limit major life
           activities but is treated by a covered entity
           as constituting such limitation;

                (2) Has a physical or mental impairment
           that   substantially   limits    major  life
           activities only as a result of the attitudes
           of others toward such impairment; or

                (3) Has none of the impairments defined
           in paragraph (h)(1) or (2) of this section but
           is treated by a covered entity as having a
           substantially limiting impairment.

29 C.F.R. § 1630.2(l).

      As noted, an employer does not necessarily regard an employee

as having a substantially limiting impairment simply because it

believes she is incapable of performing a particular job; "[t]he

statutory reference to a substantial limitation indicates instead

that an employer regards an employee as [substantially limited] in

                                - 10 -
his or her ability to work by finding the employee's impairment to

foreclose generally the type of employment involved".         Forrisi v.

Bowen, 794 F.2d 931, 935 (4th Cir. 1986); see also 29 C.F.R. §

1630.2(j)(3)(i).4

     In claiming that SSI regarded her cancer as a substantially

limiting   impairment,   Ellison   relies   on   four   comments   by   her

supervisor, Logan.     The first three fall far short of creating a

material fact issue.

     First, when Ellison informed Logan that she needed a modified

work schedule in order to receive daily radiation treatment, Logan

expressed his irritation by suggesting that she get a mastectomy

instead because her breasts were not worth saving.

     Second, when Ellison suffered from nausea after returning from

a treatment, Logan asked her where she had been; a co-worker

explained that Ellison had been in the restroom because she was

sick. When Ellison stated that she got sick every time she thought

of eating or drinking, Logan responded that it had not affected her

weight.

     Third, upon Ellison arriving at work following a radiation

treatment, a power outage occurred at SSI; the employees were told

to evacuate the building. When employees responded that they could


4
     Although Forrisi concerns a claim under a similar provision of
the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., "the
substantial equivalency of the definition of disability under the
Rehabilitation Act and the ADA strongly suggests that prior
constructions of the Rehabilitation Act should be generally
applicable in construing the ADA definition of `disability'".
Dutcher, 53 F.3d at 727 n.14.      Dutcher cites the above-quoted
portion of Forrisi with approval. Id. at 728 n.20.

                                - 11 -
not see because it was dark, Logan laughed and said, "[D]on't worry

about it.        Follow Phyllis ... see, look over there.                 She's

glowing."

     It   goes    without   saying     that    these   comments   are   beneath

contempt (when deposed, Logan was no longer employed by SSI); but,

as stated, they do not create a material fact issue on whether SSI

regarded Ellison as having a substantially limiting impairment.

The final comment, however, presents a closer question.

     During a meeting in 1994, in which the departmental reduction

was discussed, a member of the human resources department asked

whether any of the potentially affected employees had special

circumstances     that   needed   to   be     considered;   Logan   responded,

"Phyllis has cancer".       Ellison maintains that the remark creates a

material fact issue on whether SSI's decision to discharge her was

based on its perception that she had cancer.            SSI counters that the

remark reflects nothing more than its awareness of Ellison's cancer

and, in fact, could be interpreted as a request that she be given

special consideration in determining which employees would be

affected by the reduction.

     We must consider this comment in the light most favorable to

Ellison, but we cannot do so in isolation.               As noted, when the

returns position became open, it was offered to Ellison and she

accepted it.      And, as stated in her deposition, she continues to

earn the same salary, to be eligible for the pay on performance

plan, and to receive the same employee benefits.            The fact that SSI

offered Ellison another position in the company, as well as the


                                     - 12 -
fact that three other employees, in addition to Ellison, were

affected by the reduction, precludes there being a material fact

issue as to whether Ellison was included in the affected group

because   SSI   "regarded   [her]   as     having   ...   [a   substantially

limiting] impairment".

                                    III.

     For the foregoing reasons, the judgment on Ellison's ADA claim

is

                               AFFIRMED.




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