                                                                [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                         FILED
                                                              U.S. COURT OF APPEALS
                             No. 10-14544                       ELEVENTH CIRCUIT
                         Non-Argument Calendar                      JULY 6, 2011
                       ________________________                      JOHN LEY
                                                                      CLERK
                    D.C. Docket No. 7:09-cv-00866-LSC

KIMBERLY CUNNINGHAM,

                            llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,


                                    versus


NATURE'S EARTH PELLETS, L.L.C.,

                            llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                               (July 6, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Kimberly Cunningham appeals the summary judgment in favor of her
former employer, Nature’s Earth Pellets, and against her complaint of

discrimination in violation of the Americans with Disabilities Act. 42 U.S.C. §

12102. Cunningham argues that Nature’s Earth Pellets discriminated against her

and regarded her as disabled based on her addiction to prescription drugs. We

affirm.

      The Americans with Disabilities Act provides that no covered employer

“shall discriminate against a qualified individual with a disability because of the

disability of such individual” in any of the “terms, conditions, [or] privileges of

employment.” 42 U.S.C. § 12112(a). To establish a prima facie case of

employment discrimination under the Act, a plaintiff must prove that she has a

“physical or mental impairment that substantially limits one or more [of her] major

life activities” or is “regarded as having such an impairment.” 42 U.S.C. §

12102(1)(A), (C). “[A] person is ‘regarded as’ disabled within the meaning of the

[Americans with Disabilities Act] if a covered entity mistakenly believes that the

person’s actual, nonlimiting impairment substantially limits one or more major life

activities.” Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 521–22, 119 S. Ct.

2133, 2137 (1999). “[T]o prevail on a perception theory of disability

discrimination, [the employee] must be able to show that, as with a real

impairment, the perceived impairment is “‘substantially limiting’ and significant.”

                                          2
Sutton v. Lader, 185 F.3d 1203, 1208 (11th Cir. 1999). A major life activity is a

basic action performed by an average person in the general population and

includes actions like performing manual tasks, physical movements and

communication, breathing, thinking, communicating, and working. Id. §

12102(2)(A); 29 C.F.R. § 1630.2(j)(1).

      Cunningham failed to establish a prima facie case of discrimination based

on either an actual or perceived disability. Cunningham argues that her addiction

to anti-depressant medications prevented her from resolving other mental

disorders, caused her to suffer about ten panic attacks a month, and interfered with

her ability to breathe, concentrate, interact with others, and care for herself, but

Cunningham failed to establish that any of these impairments were or were

regarded as substantially limiting. See 42 U.S.C. § 12102(1); Sutton, 185 F.3d at

1208. Cunningham testified that she was able to breathe and get ready for work;

she performed regularly the tasks of a shipping clerk, which required her to

monitor the supply of company products and coordinate deliveries of those

products; and she exercised sufficient independence of thought and concentration

to withdraw from a rehabilitation facility against the advice of her physicians.

      Even if Cunningham had established a prima facie case of discrimination,

she failed to prove that the legitimate reason proffered for her termination was

                                           3
pretextual. Nature’s Earth Pellets introduced evidence that Cunningham had been

terminated because of her extensive absenteeism and the number of final warnings

that she had been given under the company’s progressive discipline system. To

establish pretext, Cunningham was required to prove that the “‘the proffered

reason was not the true reason for the employment decision . . . either by

persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation [was]

unworthy of credence.’” Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276,

1289 (11th Cir. 2005) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248, 256, 101 S. Ct. 1089, 1095 (1981)). Cunningham argues that Nature’s Earth

Pellets had not considered terminating her for past infractions of its leave policy,

but that argument does not establish that the decision to fire Cunningham lacked

credence. Based on Cunningham’s history of absenteeism, Nature’s Earth Pellets

could legitimately refuse to grant Cunningham sick leave of an indefinite duration.

      The summary judgment in favor of Nature’s Earth Pellets is AFFIRMED.




                                          4
