                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               JULY 29, 2008
                               No. 07-15685
                                                             THOMAS K. KAHN
                           Non-Argument Calendar
                                                                 CLERK
                         ________________________

                     D. C. Docket No. 06-01841-CV-BE-E

SCOTT BOYKIN,


                                                       Plaintiff-Appellant,

                                    versus

HONDA MANUFACTURING OF ALABAMA,

                                                       Defendant-Appellee.

                         ________________________

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

                                (July 29, 2008)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Scott Boykin appeals the district court’s grant of summary judgment to
Honda Manufacturing of Alabama (“Honda”) on his claim that he was

discriminated against on the basis of his disability in violation of the Americans

with Disabilities Act (“ADA”), 42 U.S.C. § 12111, et seq. Boykin was a Process

Associate at Honda’s open-area Alabama plant until he was terminated following

an extended period of non-occupational long-term disability leave due to his

chronic obstructive pulmonary disorder (“COPD”), also known as emphysema.

The district court below held that Boykin was not a qualified individual with a

disability under the Act, principally because his COPD was not an impairment that

substantially limited him in a major life activity. Boykin challenges the district

court’s summary judgment dismissal of his discrimination claim on appeal.

      We review de novo the district court’s grant of summary judgment. Burton

v. Tampa Housing Authority, 271 F.3d 1274, 1276-77 (11th Cir. 2001). Summary

judgment is appropriate if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56; Celotex v. Catrett, 477 U.S. 317,

323-24, 106 S. Ct. 2548, 2553 (1986). We view the evidence and all factual

inferences therefrom in the light most favorable to the party opposing the motion,

and all reasonable doubts about the facts are resolved in favor of the non-movant.



                                           2
Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999).

       In order to establish a prima facie case of employment discrimination under

the ADA, a plaintiff must show: (1) he has a disability; (2) he is a qualified

individual with or without reasonable accommodation; and (3) he was

discriminated against because of his disability. Rossbach v. City of Miami, 371

F.3d 1354, 1356-57 (11th Cir. 2004). The ADA defines the first element of the

prima facie case, disability, as follows: “(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.”1 42 U.S.C. § 12102(2). The determination of whether an employee

has a disability is done on a case-by-case basis. Toyota Motor Mfg., Kentucky,

Inc. v. Williams, 534 U.S. 184, 198, 122 S. Ct. 681, 692 (2002). There is no

dispute that Boykin’s COPD is a physical impairment, but Boykin has nevertheless

failed to create a genuine issue of material fact with respect to his prima facie case.



       1
          Boykin argues on appeal that he can prevail under prongs (B) and (C) of this analysis as
well. Boykin failed to raise an argument below that he had a record of impairment, and therefore
we will not consider this argument for the first time on appeal. See Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held
that an issue not raised in the district court and raised for the first time in an appeal will not be
considered by this court.” (internal citations and quotations omitted)). As for Boykin’s
“regarded as” argument on appeal, although not clearly raised below, we also find it foreclosed
by Boykin’s failure to dispute, pursuant to the court’s order, Honda’s statement of facts at
summary judgment that established Honda did not regard Boykin as disabled as a result of his
COPD. See Curran v. Kwon, 153 F.3d 481, 485-86 (7th Cir. 1998).

                                                  3
      “In determining whether an individual is substantially limited in a major life

activity . . . the following factors should be considered: ‘the nature and severity of

the impairment; the duration or expected duration of the impairment; and the

permanent or long-term impact, or the expected permanent or long-term impact of

or resulting from the impairment.’” Toyota, 534 U.S. at 196, 122 S. Ct. at 690

(quoting 29 C.F.R. § 1630(j)(2)) (alterations omitted). ADA plaintiffs must show

that “the extent of the limitation caused by their impairment in terms of their own

experience is substantial.” Id. at 198, 122 S. Ct. at 691-92 (quotation and

alternations omitted).

      “When the major life activity under consideration is that of working, the

statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege

they are unable to work in a broad class of jobs.” Sutton v. United Air Lines, Inc.,

527 U.S. 471, 491, 119 S. Ct. 2139, 2151 (1999); see also 29 C.F.R.

§ 1630.2(j)(3)(i) (requiring a showing that plaintiff is “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”). A “class of jobs” is defined as: “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



                                            4
area, from which the individual is also disqualified because of an impairment.” 29

C.F.R. § 1630.2(j)(3)(ii)(B). A “broad range of jobs in various classes” is defined

as: “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.” 29 C.F.R.

§ 1630.2(j)(3)(ii)(C). “The inability to perform a single, particular job does not

constitute a substantial limitation in the major life activity of working.” 29 C.F.R.

§ 1630.2(j)(3)(i).

      The district court held, and we agree, that Boykin’s COPD does not

substantially limit him in either of the two major life activities he identifies—

breathing or working. Boykin is not substantially limited in the major life activity

of breathing because his breathing problems are short—approximately one to three

minutes in duration—and infrequent—no more often than approximately once a

month. He manages his symptoms with two inhalers and does not require any

additional breathing devices or an oxygen mask. Indeed, after use of an inhaler

and after a few minutes of rest, Boykin is able to breath normally following a

bronchial spasm. Therefore, his breathing is not “significantly” restricted as

compared to the average person in the general population. His COPD also does



                                           5
not substantially limit him in the major life activity of working because the

evidence showed that Boykin is fully capable of working anywhere that did not

expose him to the heat, humidity, dust, and pace of the Honda manufacturing line

and, therefore, he is not disqualified from a class of jobs. Further, the fact that, at

the time of his deposition, he was working two jobs hauling fertilizer and concrete,

and was not under any medical restrictions with regard to those jobs or other jobs,

shows that he is not disqualified from a broad range of jobs within various classes.

       Having failed to demonstrate that his COPD substantially limits him in a

major life activity, Boykin is not a qualified individual with a disability under the

ADA. Having also failed below to properly raise challenges under either the

record of impairment or regarded as prongs of the disability analysis, we are

constrained to consider Boykin’s additional arguments on appeal.2 Accordingly,

the district court’s grant of summary judgment to Honda is

       AFFIRMED.




       2
         Regardless, we observe that our holding as to Boykin’s failure to demonstrate that his
COPD substantially limits him in a major life activity also forecloses his relying on a record of
this impairment as a route to establishing a disability under the ADA. See Hilburn v. Murata
Electronics North America, Inc., 181 F.3d 1220, 1229 (11th Cir. 1999).

                                                 6
