             Case: 12-13684    Date Filed: 03/05/2013   Page: 1 of 8

                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-13684
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 5:10-cv-01374-RDP


CHARLES HETHERINGTON,

                                                               Plaintiff-Appellant,

                                     versus

WAL-MART, INC.,

                                                             Defendant-Appellee.

                         ________________________

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

                                (March 5, 2013)

Before MARCUS, WILSON and MARTIN, Circuit Judges.

PER CURIAM:

      Charles Hetherington appeals the district court’s grant of summary judgment

in favor of his former employer, Wal-Mart, Inc. (“Wal-Mart”), in his disability
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discrimination action under the Americans with Disabilities Act of 1990 (“ADA”),

42 U.S.C. § 12101, et seq. On appeal, Hetherington argues that: (1) the district

court abused his discretion in striking evidence Hetherington submitted in

opposition to Wal-Mart’s summary judgment motion; (2) the district court erred in

granting Wal-Mart’s summary judgment motion since Hetherington opposed

summary judgment by showing that he was substantially limited in thinking,

walking, using his right hand, reading, learning, and working. After thorough

review, we affirm.

      A district court has broad discretion in determining the admissibility of

evidence, and we review evidentiary rulings for abuse of discretion.         Equity

Lifestyle Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232,

1243 (11th Cir. 2009). We review the granting of summary judgment de novo,

construing the facts in the light most favorable to the nonmoving party. Holly v.

Clairson Indus., LLC, 492 F.3d 1247, 1255 (11th Cir. 2007).

      First, we find no merit to Hetherington’s claim that the district court abused

its discretion in striking his evidence on summary judgment. Declarations used to

support or oppose a summary judgment motion must be based on personal

knowledge and must set forth facts that would be admissible under the Federal

Rules of Evidence.     See Fed.R.Civ.P. 56(c)(4).        Hearsay is an out-of-court

statement offered to prove the truth of the matter asserted. See Fed.R.Evid. 801(c).



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A district court may consider hearsay in ruling on a summary judgment motion

where that statement could be “reduced to admissible evidence at trial.” Macuba v.

DeBoer, 193 F.3d 1316, 1323 (11th Cir. 1999) (quotation omitted).

      The Federal Rules of Evidence create an exception to the hearsay rule for the

records of public agencies that set forth factual findings resulting from a legally

authorized investigation, unless the sources of information or other circumstances

indicate lack of trustworthiness. Fed.R.Evid. 803(8). Cause determinations by the

Equal Employment Opportunity Commission (“EEOC”) are generally admissible

under the hearsay exception for public records. See Walker v. NationsBank of Fla.

N.A., 53 F.3d 1548, 1554 & n.7 (11th Cir. 1995). However, the admissibility of

EEOC findings is subject to the sound discretion of the district court, and a court

can refuse to admit an EEOC report if it contains legal conclusions in addition to

its factual content, or if it presents issues of trustworthiness. Barfield v. Orange

Cnty., 911 F.2d 644, 650 (11th Cir. 1990).

      As the record shows here, the magistrate judge did not abuse his discretion

by excluding portions of the declaration of Hetherington’s father (Charles

Hetherington, Sr.) since the statements excluded were not within the father’s

personal knowledge. See Fed.R.Civ.P. 56(c)(4). Further, even assuming that these

statements could be found to be within his personal knowledge, they had no

probative value with respect to whether summary judgment should be granted



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because they were conclusory and lacked specific supporting facts. See Hilburn v.

Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1228 (11th Cir. 1999) (conclusory

allegations without specific supporting facts have no probative value).        The

magistrate also did not abuse his discretion in striking the portion of the EEOC

cause determination that provided that Hetherington was a qualifying legal

individual with a disability because this was a legal conclusion. See Barfield, 911

F.2d at 650. Moreover, because the statement by Wal-Mart employee Margaret

McCluskey would not have been admissible at trial, it was properly stricken. The

document constituted hearsay, and Hetherington has failed to identify any

applicable exception to the hearsay rule.    Finally, any error in excluding the

remainder of the evidence was harmless, as the exclusion of the evidence did not

affect the outcome of the case. See Outside the Box Innovations, LLC v. Travel

Caddy, Inc., 695 F.3d 1285, 1297 (11th Cir. 2012) (providing that any error in the

admission or exclusion of evidence may be tolerated unless it had a substantial

influence on the outcome of the case).

      We are also unpersuaded by Hetherington’s claim that the district court erred

in granting Wal-Mart’s summary judgment motion. A district court shall grant

summary judgment where the evidence shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.

Fed.R.Civ.P. 56(a). To establish a prima facie case of disability discrimination



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under the ADA, a plaintiff must show that (1) 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 the plaintiff establishes a prima facie case, a presumption of

discrimination arises and the burden shifts to the defendant to proffer a legitimate,

non-discriminatory reason for the employment action. Id. If the defendant meets

its burden, then the plaintiff must show that the proffered reason is a pretext for

discrimination. Id.

      The ADA defines “disability” as (1) a physical or mental impairment that

substantially limits one or more of the plaintiff’s major life activities; (2) a record

of such an impairment; or (3) being regarded as having such an impairment.

Hilburn, 181 F.3d at 1226. The term “major life activities” includes functions such

as performing manual tasks, walking, learning, and working. Id. at 1226-27. In

determining whether an individual is substantially limited in a major life activity,

the following factors should be considered: (1) the nature and severity of the

impairment; (2) the duration or expected duration of the impairment; and (3) the

permanent or long-term impact of the impairment. Id. at 1227. An individual’s

ability to work is substantially limited if he is “significantly restricted” in his

ability to perform either a class of jobs or a broad range of jobs in various classes




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as compared to an average person who has comparable training, skills and abilities.

D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1227 (11th Cir. 2005).

       As an initial matter, the district court did not err in not addressing the EEOC

cause determination in deciding Wal-Mart’s summary judgment motion.1 EEOC

findings are not binding with regard to subsequent discrimination suits in federal

court. See Moore v. Devine, 767 F.2d 1541, 1542-43, 1550-51 (11th Cir. 1985),

modified on reh’g, 780 F.2d 1559, 1560, 1562-63 (11th Cir. 1986). Moreover, the

district court was not required to defer or make reference to the EEOC

determination, as it had to conduct a de novo review of his claim. Id. at 1550-51.

       Next, although the evidence shows that Hetherington is somewhat limited in

thinking, reading, and learning, he is able to read and write, and his reading level

has been evaluated to be at a junior high level. He also completed 12 years of

school. Thus, he did not show that he was substantially limited in these activities.

The evidence also shows that he was somewhat limited in walking and using his

right hand, as he limped on his right leg and his right arm shook when he reached

for items. However, the evidence shows that he was able to drive a car, bathe,

shower, and dress himself. He also exercised at a health center by walking and

lifting weights. In previous positions, he performed a number of different jobs
1
  We also reject Hetherington’s argument that we should rely on the legislative history of the
ADA Amendments Act of 2008 (“ADAAA”) in deciding his case since it was not in effect
during the events in question. Hetherington concedes that the ADAAA does not apply
retroactively; accepting his argument would have the effect of applying the ADAAA
retroactively to him.


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including assembling bolts, putting boxes together, packaging and sorting welding

rods, clipping strings from cargo nets, assembling belts, bagging groceries,

assisting customers unload groceries into their cars, unloading merchandise from

trucks, and delivering the items to their proper location in the store. Based on the

evidence concerning his past positions, he is not substantially limited in using his

right hand or walking.

      Hetherington also claims that he is substantially limited in the major life

activity of working. But the fact that he is unable to obtain a job that requires one

to pass the General Education Development (“GED”) exam does not show that he

is unable to perform either a class of jobs or a broad range of jobs in various

classes as compared to an average person, as the comparator is an average person

who has comparable training and skills. D’Angelo, 422 F.3d at 1227.

      Finally, Hetherington contends that he also is disabled because Wal-Mart

had a record of his disability. Hilburn, 181 F.3d at 1226. He claims that his

receipt of an North Alabama Committee on Employment of People with

Disabilities (“NACEPD”) achievement award illustrates this because a Wal-Mart

store manager attended the award ceremony, and a personnel manager supported

his award nomination. He also points to evidence showing that the individual who

terminated Hetherington knew that he limped, had a scar on his head, and was slow

in speaking. To the extent this evidence can even constitute a “record” under the



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ADA, Hetherington fails to explain how these events show that he suffered from

an impairment that would substantially limit one or more life activities. See

Hilburn, 181 F.3d at 1229 (holding that the record-of-impairment standard is

satisfied only if the plaintiff “actually suffered a physical impairment that

substantially limited one or more of h[is] major life activities”). Accordingly,

because he has failed to show that he is disabled under the ADA, the district court

did not err in granting summary judgment in favor of Wal-Mart. 2

       AFFIRMED.




2
 It is unnecessary for this Court to address Hetherington’s arguments concerning pretext, since
he failed to show that he had a disability under the ADA.


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