                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                                F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                 April 29, 2005
                        FOR THE FIFTH CIRCUIT
                           ________________                  Charles R. Fulbruge III
                                                                     Clerk
                            No. 04-60785
                          Summary Calendar
                          ________________

ED DILLON

            Plaintiff - Appellant

     v.

ROADWAY EXPRESS

          Defendant - Appellee
_________________________________________________________________

           Appeal from the United States District Court
        for the Southern District of Mississippi, Jackson
                        No. 3:02-CV-1821-LN
_________________________________________________________________

Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.

PER CURIAM:*

     Ed Dillon, Plaintiff-Appellant, sued his former employer for

disability and racial discrimination.    The district court granted

summary judgment in favor of his employer.      We AFFIRM.

                           I.   BACKGROUND

A.   Factual Background

     In the mid-1980s, Plaintiff-Appellant Ed Dillon, an African-

American male, began working for Defendant-Appellee Roadway


     *
          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that this opinion should not be published and is not precedent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.

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Express, Inc. (“Roadway”) as a dockworker at a Texas facility.

In the mid-1990s, Dillon transferred to Roadway’s facility in

Brookhaven, Mississippi to work as a pickup and delivery driver.

The Brookhaven facility is a satellite shipping terminal with

three full-time drivers and one casual driver.   Dillon’s job

involved receiving freight at the terminal, loading it onto a

truck, and delivering it to customers.

     On September 26, 1997, Dillon was assigned to truck number

10717.   Dillon initially refused to drive the truck, complaining

that exhaust fumes leaked into the truck’s cab and made him sick.

After arguing with his supervisor and attempting to contact a

representative from his union, Dillon finally agreed to drive the

truck.   Dillon made a few deliveries, but soon began suffering

from headaches and nausea.   He proceeded to the emergency room at

Hardy Wilson Hospital in Hazelhurst, Mississippi.   After being

examined and given medication, Dillon was discharged from the

hospital.   He then completed his deliveries and returned the

truck to the Brookhaven terminal.

     Due to medical problems he claims stem from being forced to

drive truck number 10717, Dillon has been unable to work since

September 26, 1997.   Dillon was initially diagnosed as having

carbon monoxide poisoning suffered as a result of the fumes

leaking into the cab of truck number 10717.   However, after

extensive medical testing, Dillon’s symptoms were diagnosed as

having a psychological, rather than physical, origin.   His

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current diagnosis is post-traumatic stress disorder and

environmental sensitivity syndrome due to work-related factors.

Dillon claims his present symptoms include dizziness,

irritability, loss of short-term memory, jitteriness, anxiety,

temporary respiratory difficulties, auditory difficulties, hives,

muscle weakness, and temporary paralysis.   These symptoms

allegedly are triggered by stress and exposure to various fumes

including those from anti-freeze, diesel fuel, and overheated

radiators.   As a result of these symptoms, Dillon currently

receives disability benefits from the United States Social

Security Administration for his claimed permanent disability.

     In October 1999, Dillon began consulting with Dr. Jule

Miller, a psychologist, on a regular basis.   By November 2000,

Dr. Miller felt that Dillon’s symptoms had improved sufficiently

for him to attempt to return to work.   On November 20, 2000, Dr.

Miller wrote a letter clearing Dillon to return to work subject

to two restrictions.   The first restriction was that Dillon

should be allowed to “leave work if his stress level gets too

high, only to return when he feels it is manageable again.”    The

second restriction was that Dillon “continue to make his

appointments with me, even if that means having to miss some

work.”

     Roadway sought from Dr. Miller clarification regarding his

proposed accommodations.   On January 22, 2001, Dr. Miller sent a

second letter in which he stated that Dillon:

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           is not totally cured and will need some
           accommodations to be made.      Particularly,
           there may be times when the stress level
           becomes too much for him and he will need to
           walk off the job for a time.    This is most
           likely to happen during a conflict with
           management or from over-exposure to exhaust
           fumes. . . . He should only drive equiptment
           [sic]   that   fully  meets   Department   Of
           Transportation regulations, particularly in
           regard to exhaust fumes.

     On February 15, 2001, Roadway informed Dillon that Dr.

Miller’s letters represented an unacceptable return to work

release.   On March 12, 2001, Dr. Miller wrote a third letter in

which he stated:

           If Mr. Dillon is stressed too much, it is
           dangerous for his health and he needs to leave
           to prevent further psychological damage. He
           may only have to leave for an hour. . . . Or
           he may have to take the whole day off. . . .
           To not allow him to do this is to not provide
           reasonable accommodation to someone with a
           medical disability, which, as you know, is
           illegal.

     On March 16, 2001, Roadway sent a letter to Dillon informing

him that Dr. Miller’s proposed accommodations were not

reasonable.   In closing, the letter informed Dillon that he

should get in contact with the company if he had “any other

suggestions of how to facilitate a return . . . .”

B.   Procedural Background

     On September 10, 2001, Dillon filed a complaint with the

United States Equal Employment Opportunity Commission.      Dillon

received his right to sue letter on September 26, 2002.      On



                               - 4 -
December 26, 2002, Dillon filed suit in the United States

District Court for the Southern District of Mississippi.      Dillon

raised three claims in his complaint, two of which are relevant

here.1   First, he alleged that in failing to grant him the

accommodations outlined in Dr. Miller’s letters, Roadway violated

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et

seq. (2000).   Second, Dillon alleged that Roadway’s failure to

grant him the requested accommodations was motivated by racial

animus in violation of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e et seq. (2000).

     On February 17, 2004, Roadway filed a motion for summary

judgment.   On August 2, 2004, the district court granted

Roadway’s summary judgment motion.      The district court found that

Dillon was not disabled within the meaning of the ADA.     Further,

the court found that even if Dillon were disabled, he is not

otherwise qualified to return to work because Dr. Miller’s

accommodations were unreasonable.    Finally, as to the Title VII

claim, the court found that the record contained no evidence to

support Dillon’s claims of racial discrimination.

     Dillon now appeals the district court’s grant of summary

judgment.

                      II.   STANDARD OF REVIEW


     1
          Dillon also raised a state law retaliation claim, which
the court found was not cognizable under Mississippi law. Dillon
does not appeal this determination.

                                - 5 -
     We review a district court’s grant of summary judgment de

novo, applying the same legal standards as the district court.

Fierros v. Tex. Dep’t of Health, 274 F.3d 187, 190 (5th Cir.

2001).   Summary judgment is appropriate if there are no genuine

issues of material fact and the movant is entitled to judgment as

a matter of law.   FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).    The initial burden to demonstrate the

absence of a genuine issue of material fact is on the movant.

Celotex, 477 U.S. at 324.    Upon showing that there is an absence

of evidence to support an essential element of the non-movant’s

case, the burden shifts to the non-movant to establish that there

is a genuine issue of material fact in dispute.      Id.

                            III.    ANALYSIS

A.   Dillon’s ADA Claim

     To establish a prima facie case for discrimination under the

ADA, Dillon must prove that: (1) he is disabled; (2) with

reasonable accommodations, he is qualified for the position; and

(3) he suffered an adverse employment decision based on his

disability.   Still v. Freeport-McMoran, Inc., 120 F.3d 50, 51-52

(5th Cir. 1997) (per curiam).      The ADA defines a disability as a

“a physical or mental impairment that substantially limits one or

more of the major life activities . . . .” 42 U.S.C. § 12102

(2)(A) (2000).   The phrase “major life activities” includes

“functions such as caring for oneself, performing manual tasks,


                                   - 6 -
walking, seeing, hearing, speaking, breathing, learning, and

working.”   29 C.F.R. 1630.2(i) (2004).     On appeal, Dillon

contends that the district court erred in ignoring evidence that

his mental impairment substantially limits his ability to perform

the major life activities of breathing, hearing, and walking.

     We find Dillon’s arguments regarding the district court’s

supposed errors unavailing.   As for his claim that he has

difficulty breathing, Dillon argues that the record is replete

with evidence showing that his symptoms are brought on, in part,

by inhaling fumes.   Dillon reasons that because the act of

inhalation is a necessary part of breathing, he is substantially

limited in his ability to breathe.      This evidence does nothing

whatsoever to indicate that Dillon is hampered in his ability to

breathe.    Rather, all it shows is that the act of breathing is a

trigger for other alleged impairments.      The record also lacks

evidence showing that Dillon is substantially limited in his

ability to hear.   The only symptom he complains of is an

occasional inability to localize a sound, i.e., ascertain the

direction from where the sound is coming.      He does not contend

that he suffers from any actual hearing loss.      Thus, there is no

substantial limitation on his ability to hear.      Finally, the

record also does not reflect that Dillon is substantially limited

in his ability to walk.   Dillon claims that the inhalation of

fumes sometimes triggers muscle weakness.      At times, the weakness

is so severe that Dillon finds it difficult to walk.      Thus,

                                - 7 -
Dillon argues, he suffers from temporary paralysis.    This

“paralysis” does not qualify as a disability because it is merely

the most extreme manifestation of an only occasional symptom.     We

agree with the district court’s view that such an occasionally

occurring problem does not qualify as a substantial limitation.

See Waldrip v. Gen. Elec. Co., 325 F.3d 652, 656-57 (5th Cir.

2003) (holding that occasional flare-ups of plaintiff’s chronic

pancreatitis which required him to miss work did not qualify as a

disability);   Burch v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir.

1997) (“We have previously rejected attempts to transform

temporary afflictions into qualifying disabilities.”).

     Because Dillon is not disabled, we need not consider whether

Roadway failed to reasonably accommodate him.     See Blanks v.

Southwestern Bell Communications, Inc., 310 F.3d 398, 402 (5th

Cir. 2002) (“We conclude that Blanks is not entitled to ADA

protection, hence, we need not decide whether [Southwestern Bell]

failed to reasonably accommodate him . . . .”).

B.   Dillon’s Title VII Race Discrimination Claim

     To state a prima facie case for discrimination under Title

VII, a plaintiff must show that: (1) he is a member of a

protected class; (2) he was qualified for the position; (3) he

suffered an adverse employment action; and (4) others similarly

situated were more favorably treated or that he was replaced by

someone outside the protected class.   See, e.g., Okoye v. Univ.



                               - 8 -
of Tex. Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir. 2001).

The record is devoid of any evidence as to the fourth element of

the prima facie case.   There is simply no evidence to suggest

that similarly situated white employees were treated any

differently.   Dillon has also not pointed to any evidence

indicating who has been selected to take over his old job.   In

the end, there is simply nothing to suggest that Roadway’s

refusal to allow Dillon to return to work derives from anything

other than his inability to do his job with reasonable

accommodations.

                          IV.   CONCLUSION

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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