                                                                     [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                             FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                            MAY 11, 2007
                                                         THOMAS K. KAHN
                                                              CLERK
                                         No. 05-12770


                           D.C. Docket No. 04-00066-CV-AR-S

CHARLES IRVIN LITTLETON, JR.,

                                                                            Plaintiff-Appellant,

                                              versus

WAL-MART STORES, INC.,

                                                                           Defendant-Appellee.



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


                                        (May 11, 2007)

Before BIRCH and BLACK, Circuit Judges, and MILLS,* District Judge.

PER CURIAM:


       *
         Honorable Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.
      Charles Irvin Littleton, Jr. appeals the district court’s order granting Wal-Mart

Store, Inc. summary judgment on his failure-to-hire disability discrimination claim

under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112, 12132.

Littleton claims that the district court erred in finding that he was not disabled under

the ADA because his permanent condition of mental retardation limits one or more

of his major life activities, namely (1) learning, (2) thinking, (3) communicating, (4)

social interaction, and (5) working. We assume the parties’ familiarity with the facts

and procedural history of this case.

                                 I. BACKGROUND

      On appeal, Littleton claims that there is at least a genuine issue of material fact

tending to show that his mental retardation substantially limited him as to certain

major life activities. Regarding the major life activities of learning, thinking,

communicating and social interaction, Littleton contends that the district court failed

to consider the following evidence in the light most favorable to him: (1) testimony

from his job coach and mother concerning his limited ability to think and

communicate; (2) Wal-Mart personnel manager Marlene Barcanic’s awareness of

Littleton’s limitations and need for assistance during the interview process; (3)

observations of Wal-Mart interviewers that Littleton displayed poor interpersonal

skills and a lack of enthusiasm about the job; and (4) his deposition testimony, which

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showed that he had limited cognitive abilities and difficulty navigating the interview

process. Based on these factors, Littleton argues that a reasonable jury could infer

that he is disabled under the ADA.

      Charles Irvin Littleton, Jr. is a 29-year old man who was diagnosed with mental

retardation as a young child. Littleton receives social security benefits because of his

disability and lives at home with his mother. He graduated from high school in 1994

with a certificate in special education. Throughout his working life, Littleton has

been a client of various state agencies and public service organizations. He was

referred to Carolyn Agee, an employment coordinator with the Alabama Independent

Living Center. They attempted to secure employment for Littleton as a cart-push

associate with a Wal-Mart Store in Leeds, Alabama. Littleton claims that Barcanic,

the personnel manager at that store, initially said that Agee could accompany him in

the interview. Upon arrival at the store, however, Agee was not allowed to

accompany Littleton in the interview. The interview did not go well and Littleton

was not offered a position.

                                  II. DISCUSSION

      “We review de novo a district court’s ruling on summary judgment, applying

the same legal standards as the district court.” Matthews v. Crosby, 480 F.3d 1265,

1268 (11th Cir. 2007) (citation omitted). The Court views the evidence in the light

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most favorable to the nonmoving party. Id. at 1269. Summary judgment is

appropriate if the evidence shows that “there is no genuine issue as to any material

fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c).

      To establish a prima facie case of disability discrimination under the ADA, a

plaintiff must show (1) that he has a disability; (2) he is a qualified individual; and

(3) he was discriminated against because of his disability. See Cleveland v. Home

Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). If Littleton

establishes a prima facie case, a presumption of discrimination arises and the burden

shifts to Wal-Mart to proffer a legitimate, non-discriminatory reason for the

employment action. Id. If Wal-Mart meets its burden, then Littleton must show that

the proffered reason is a pretext for discrimination. Id.

      The ADA defines “disability” 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 impairment; or (C) being regarded as having such an impairment.” 42

U.S.C. § 12102(2). To prove that he is disabled due to an impairment, a plaintiff

must prove that the impairment, as personally suffered by him, substantially limits a

major life activity. See Pritchard v. Southern Co. Services, 92 F.3d 1130, 1132 (11th

Cir. 1996) (citing 29 C.F.R. § 1630.2(j) (App.)). Under the “regarded as” prong of

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section 12102(2)(c), an individual is “disabled” if his employer perceives him as

having an ADA-qualifying disability. See Carruthers v. BSA Advertising, Inc., 357

F.3d 1213, 1216 (11th Cir. 2004).

      Littleton asserts that: (1) he is substantially limited in the major life activities

of learning, thinking, communicating, social interaction and working; and (2) Wal-

Mart perceived him as being substantially limited in working, communicating, and

social interaction. Courts look to the ADA’s implementing regulations to determine

the functions that qualify as “major life activities.” We are mindful that the Supreme

Court has stated that the term “disability” is to be “interpreted strictly to create a

demanding standard for qualifying as disabled.” See Carruthers, 357 F.3d at 1216

(quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002)). The

regulations provide that mental retardation qualifies as a “mental impairment.” See

29 C.F.R. § 1630.2(h)(2). Major life activities include “functions such as caring for

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

learning, and working.” See 29 C.F.R. § 1630.2(i). This court has not determined

whether thinking, communicating and social interaction constitute “major life

activities” under the ADA.

      In his appellate brief Littleton asserts that the district court did not consider

evidence pertaining to limitations on his ability to think and communicate. After

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reviewing the record, however, we conclude that Littleton failed to argue before the

district court that there were any limitations on his ability to think and communicate,

nor did he contend he was substantially limited as to any other alleged major life

activity. This is true even though Wal-Mart asserted that it was entitled to summary

judgment because Littleton could not establish a prima facie case under the ADA, in

that he was unable to show he was substantially limited in any major life activity.

Because Littleton produced no evidence on this point, the district court properly

concluded that “Wal-Mart is entitled to judgment as a matter of law here because

there is no evidence to support Littleton’s necessary contention that his retardation

substantially limits him in one or more major life activities.” See, e.g., Williams, 534

U.S. at 195 ( “Merely having an impairment does not make one disabled for purposes

of the ADA. Claimants also need to demonstrate that the impairment limits a major

life activity.”).

       We generally do not consider issues that were not raised before the district

court. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994). Even if the issue

was properly raised, we conclude that Wal-Mart is still entitled to summary judgment

because Littleton has failed to produce any evidence that his mental impairment

substantially limited any major life activities.

       As for the major life activity of working, “[t]he term substantially limits means

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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.” See 29

C.F.R. § 1630.2(j)(3)(i). Littleton, his mother and Agee all testified that there are no

jobs he cannot perform because of any alleged disability. Accordingly, Littleton has

not shown that he is substantially limited in this major life activity.

      “Learning” is also a major life activity, see 29 C.F.R. § 1630.2(i), so we must

determine whether there is a genuine issue of material fact regarding whether

Littleton’s ability to learn is substantially limited by his mental retardation. Wal-Mart

acknowledges that Littleton’s mental retardation is a permanent condition, which is

a factor that courts consider in determining whether an individual is substantially

limited in a major life activity. See 29 C.F.R. § 1630.2(j)(2)(ii)–(iii). After

graduating from high school with a certificate in special education, Littleton attended

a technical college and majored in mechanical maintenance. The record shows that

Littleton is able to read and comprehend and is able to perform various types of jobs.

It is apparent that Littleton is somewhat limited in his ability to learn because of his

mental retardation. However, he has pointed to no evidence which would create a

genuine issue of material fact regarding whether he was substantially limited in the

                                            7
major life activity of learning because of his mental retardation.

      It is unclear whether thinking, communicating and social interaction are “major

life activities” under the ADA. We acknowledge that a review of Littleton’s

deposition testimony is not inconsistent with his assertion that he sometimes has

difficulty thinking or communicating. Even if thinking and communicating are major

life activities, however, Littleton has not shown that he is substantially limited in

those activities. As Wal-Mart contends, moreover, the fact that Littleton drives a car

might be determined to be inconsistent with his assertion that his abilities to think and

learn are substantially limited. Additionally, Littleton’s mother and Agee testified

that Littleton is capable of being interviewed for a job without any accommodation,

is “very verbal,” and would not need a job coach to communicate effectively with

other people in the workforce. This bolsters Wal-Mart’s contention that any difficulty

Littleton has with communicating does not appear to be a substantial limitation.

      We do not doubt that Littleton has certain limitations because of his mental

retardation. In order to qualify as “disabled” under the ADA, however, Littleton has

the burden of proving that he actually is, is perceived to be, or has a record of being

substantially limited as to “major life activities” under the ADA. 42 U.S.C. §§

12102(2)(A), 12112(a), 12132; see also Hilburn v. Murata Electronics North

America, Inc., 181 F.3d 1220, 1227 (11th Cir. 1997). Assuming that thinking,

                                           8
communicating and social interaction are “major life activities” under the ADA, we

conclude that Littleton has failed to create a genuine issue of material fact that he is

substantially limited in those pursuits. Thus he has failed to assert a prima facie case

of discrimination under the ADA.

        We AFFIRM the district court’s entry of summary judgment in favor of Wal-

Mart.




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