                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                   September 18, 1997
                           FOR THE FIFTH CIRCUIT
                              _______________                    Charles R. Fulbruge III
                                                                         Clerk
                                 No. 97-50194
                              Summary Calender
                               _______________



                            VERNON G. JOHNSON,

                                                 Plaintiff-Appellant,


                                    VERSUS

                            BAYLOR UNIVERSITY,

                                                 Defendant-Appellee.


                        _________________________

            Appeal from the United States District Court
                  for the Western District of Texas
                             (W-96-CV-242)
                      _________________________
                          September 18, 1997


Before JOLLY, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*



      Vernon Johnson appeals a summary judgment in favor of Baylor

University on employment discrimination claims under the Americans

with Disabilities Act (“ADA”) and the Rehabilitation Act.               Finding

no error, we affirm.



      *
        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should not be published and is not precedent except under the limited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.
                                    I.

       Baylor’s former president, Herbert Reynolds, hired Johnson to

be the university’s chief pilot beginning the first day of 1992.

In that position, Johnson was responsible for shuttling Reynolds

and other university VIP's on the university’s airplane.                 When

hired, Johnson weighed approximately 275 pounds.            His weight was a

source of irritation to Reynolds, who insisted that Johnson lose

weight.     In fact, Reynolds made the continuation of Johnson’s

employment conditional on losing over one hundred pounds during the

first ninety days of employment.

       Not surprisingly, Johnson was unable to lose so much weight in

so little time.    Reynolds, however, did not terminate Johnson at

the end of the first ninety days.             Instead, Reynolds repeatedly

made   Johnson   and   the   relevant       university   officials   aware   of

Johnson’s expertise as a pilot, while at the same time pressing him

to lose weight, to improve his appearance at work (such as tucking

in his shirt tail and remembering to wear a suit jacket on the

airplane), and to correct his grammatically flawed parlance.

       Reynolds noted that Johnson’s position put him in contact with

many important university benefactors and therefore required a

certain comeliness on Johnson’s part that might not otherwise be

required.     Moreover, Reynolds expressed concern that Johnson’s

weight made him a health risk, so he continued to prod Johnson to

lose weight in order to help to reduce the university’s health

insurance costs.

                                        2
      Consequently, Reynolds warned Johnson that failure to correct

these problems put Johnson’s position at Baylor in jeopardy.                     In

August 1994, Reynolds fired Johnson, noting a substantial failure

to ameliorate the problems noted above.



                                       II.

      Johnson sued Baylor,1 an institution receiving federal funds,

claiming      that   his    termination       violated   the   ADA,   42    U.S.C.

§ 12112(a) (prohibiting discrimination against the disabled in the

workplace),       and   a   substantially        similar   provision       of   the

Rehabilitation Act, 29 U.S.C. § 794 (prohibiting institutions

receiving federal funds from discriminating against the disabled).2

Johnson based his statutorily required showing of a disability on

a theory that Baylor, through Reynolds, regarded him as being

unemployable because of his weight and that this perception led to

his termination.        Johnson alleged only a “regarded as” claim and

has never asserted that his weight was in fact a disability.

      Baylor contended that Johnson had failed to present sufficient


      1
          Subject matter jurisdiction based on 28 U.S.C. §§ 1331, 1343.
      2
        The relevant portion of the Rehabilitation Act provides: “No otherwise
qualified individual with a disability . . . shall, solely by reason of her or
his disability, be excluded from the participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity receiving Federal
financial assistance . . . .” 29 U.S.C. § 794(a). Furthermore, and relevant for
purposes of this case: “The standards used to determine whether this section has
been violated in a complaint alleging employment discrimination under this
section shall be the standards applied under title I of the Americans with
Disabilities Act of 1990 . . . .” Id. § 794(d).         Accordingly, the ensuing
discussion in the text of the ADA’s disability requirement should be treated as
encompassing the disability requirement under the Rehabilitation Act as well.

                                          3
evidence that Reynolds regarded him as being substantially impaired

from participating in a major life activity, as required by the ADA

to show a disability.       Because a plaintiff must show a disability

in order to proceed under the ADA, Baylor accordingly moved for

summary judgment.

     The district court agreed with Baylor, finding that Johnson

had failed to offer sufficient evidence that Reynolds regarded

Johnson’s weight as substantially interfering with the only major

life activity at issueSS“working.”             Because Johnson could not make

a showing that he was disabled under the ADA, the court granted

summary judgment.



                                        III.

     We   review    a    summary   judgment       de   novo.    See    Hanks    v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992).    Summary       judgment   is    appropriate     “if   the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show 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).        The

party seeking summary judgment carries the burden of demonstrating

that there is an absence of evidence to support the non-moving

party’s case.      See Celotex Corp. v. Catrett, 477 U.S. 317, 325

(1986).   After a proper motion for summary judgment is made, the


                                         4
non-movant must set forth specific facts showing that there is a

genuine issue for trial.         See Hanks, 953 F.2d at 997.

      We   begin   our   determination        by   consulting      the   applicable

substantive law to determine what facts and issues are material.

See King v. Chide, 974 F.2d 653, 655-56 (5th Cir. 1992).                    We then

review the evidence relating to those issues, viewing the facts and

inferences in the light most favorable to the non-movant.                    See id.

If   the   non-movant     sets   forth       specific    facts     in    support   of

allegations essential to his claim, a genuine issue is presented.

See Celotex, 477 U.S. at 327; Brothers v. Klevenhagen, 28 F.3d 452,

455 (5th Cir. 1994).



                                      IV.

      In order to understand Johnson's evidentiary burden better, we

first   review     the   ADA’s   mandate:          “No   covered    entity    shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms,

conditions, and privileges of employment.”               42 U.S.C. § 12112(a).3

Therefore, a plaintiff is obliged to make an initial showing that




      3
        No one denies that Baylor is a “covered entity” under the ADA or the
Rehabilitation Act.

                                         5
he has a “disability” in order to invoke the ADA’s protections.4

      The ADA defines a “disability” as follows:

           The term “disability” means, with respect to an
      individual SS

            (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.


42 U.S.C. § 12102(2).       Johnson alleges that he is disabled under

§ 12102(2)(C): that Baylor regarded him as having a physical

impairmentSSobesitySSthat       substantially      limits   his   major    life

activity of “working,” as defined by EEOC regulation.                   See 29

C.F.R. § 1630.2(i) (“Major Life Activities means functions such as

caring for oneself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.”).

      The EEOC regulations strictly construe “substantially limits


      4
        A plaintiff can prove discrimination under the ADA either directly or
indirectly. Directly, he must show that he is disabled under the act; that with
or without reasonable accommodation he could perform the job; and that the
employer discharged him because of his disability. See 42 U.S.C. § 12112(a);
Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 162 (5th Cir.), cert. denied,
117 S. Ct. 586 (1996).

      Alternately, he can use a burden-shifting analysis to make out a prima
facie case of discrimination. See, e.g., McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). To do so, he must show that he is disabled under the
act; that he is qualified with or without accommodation; that he was subject to
an adverse employment action; and finally, that he was replaced with a non-
disabled person. See id; Burch v. Coca-Cola Co., No. 95-10990, 1997 WL 425943,
at *13 (5th Cir. July 30, 1997); Daigle v. Liberty Life Ins. Co., 70 F.3d 394,
396 (5th Cir. 1995). Both methods, however, require that the plaintiff make an
initial showing that he is “disabled,” as statutorily defined.

                                       6
the major life activity of working.” Specifically, the regulations

provide:

     (3)   With respect to the major life activity of workingSS

           (i) The     term   substantially    limits    means
           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.

           (ii) In addition . . ., the following factors may
           be considered in determining whether an individual
           is substantially limited in the major life activity
           of “working”:

                (A) The geographical area to        which   the
                individual has reasonable access;

                (B) The job from which the individual has
                been disqualified because of an impairment,
                and the number and types of jobs utilizing
                similar   training,    knowledge,   skill   or
                abilities, within that geographical area, from
                which the individual is also disqualified
                because of the impairment (class of jobs);
                and/or

                (C) 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 (broad range of jobs
                in various classes).

29 C.F.R. § 1630.2(j)(3).

     Although what “substantially limits [the] major life activity

[of working]” ultimately means is determined on a case-by-case

basis, see Byrne v. Board of Educ., 979 F.2d 560, 565 (7th Cir.

                                 7
1992); Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986), the

statutory language plainly does not prevent all adverse employment

actions against a physically- or mentally-impaired employee. Thus,

such an employee does not obtain tenure at his position because of

his impairment.     See Ellison v. Software Spectrum, Inc., 85 F.3d

187, 192 (5th Cir. 1996); 29 C.F.R. § 1630.2(j)(3)(i).               Instead,

the “substantially limits” statutory language, as it relates to

“working,” strikes a balance:       It allows a disabled person a foot

in the door of the labor market, see Burch, 1997 WL 425943, at *6,

while at the same time, it tries not to impose an undue burden on

an employer’s freedom to make employment decisions he feels are in

the best interests of his business, see Tudyman v. United Airlines,

608 F. Supp. 739, 747 (C.D. Cal. 1984) (“[P]rivate employers are

generally free to be arbitrary and even capricious in determining

whom to hire . . . .”).

     Johnson    contends    that   Baylor   perceived   that   his   obesity

substantially     limited   his    major    life   activity    of    working.

Therefore, once Baylor moved for summary judgment asserting that

Johnson lacked the evidence necessary to go forward with a trial,

Johnson, in order to defeat summary judgment, was obliged to offer

enough evidence to show that there was a genuine fact issue that

Baylor regarded Johnson's obesity as substantially limiting his

major life activity of working.       Cf. Hanks, 953 F.2d at 997.        More

specifically, Johnson would have to offer some evidence that Baylor


                                     8
believed (1) that Johnson could not obtain a position in the

geographical area because of his obesity; (2) that Johnson could

not obtain a job in the class of jobs utilizing similar skills and

trainingSShere, as a pilotSSbecause of his obesity; or (3) that

Johnson was unable to obtain a job, in the same geographical area,

that did not utilize the same skills or training, but for which

Johnson's     obesity    also     disqualified         him.       Cf.       29     C.F.R.

§ 1630(j)(3)(ii)(A)-(C).

     Johnson    contends       that    requiring      evidence    of    the       factors

mentioned    above,     which    are    taken       verbatim     from       the    EEOC’s

regulations, see 29 C.F.R. § 1630.2(j)(3)(ii), requires him to

prove that no other employer in the relevant geographical or skill

class areas would hire him.                 Not so.     The “regarded as,” or

“perception,” prong of the “disability” definition requires that a

plaintiff provide evidence that the employer thought that other

employers would not hire him because of his obesity.                    See 42 U.S.C.

§ 12102(2)(C).

     Johnson casually addresses this evidentiary requirement and

only with vague accusations.           In no instance does any part of the

record, including the pleadings, the briefs, the depositions, the

exhibits, and the other record contents, provide more than general

assertions     about    Baylor’s       perceptions       of    Johnson’s          general

employability.    Yet, such evidence lies at the heart of Johnson’s

required     showing    that    he     is       “disabled,”    see     42    U.S.C.     §


                                            9
12102(2)(C), and is thus necessary to prevent summary judgment.

       A review of the evidence, through the three factors outlined

in 29 C.F.R. § 1630.2(j)(3)(ii), reveals insufficient evidence to

prevent      summary   judgment.     First,    Johnson's    deposition    and

Reynolds’s     affidavit   show    conclusively    that   Reynolds   regarded

Johnson as a skilled pilot. Both parties acknowledge that Reynolds

did not believe Johnson was unable to work in the class of pilot

jobs because of his weight.

       Second, Johnson offers no evidence that Baylor thought his

weight made him unemployable in the Waco area labor market or

elsewhere, and thus Reynolds’s affidavit to the contrary stands

unopposed.       Finally, Johnson offers no evidence to contradict

Baylor’s affidavit that Baylor believed Johnson could obtain work

in another class of jobs, such as airplane maintenance.



                                      V.

       We comment now on two of Johnson’s other contentions.           First,

Reynolds’s belief that Johnson could not get “a job at Baylor” or

“a job in public relations” there or elsewhere is not sufficient to

meet   the    “substantially   limiting    .   .   .   working”   requirement

outlined above.        See, e.g., Bridges v. City of Bossier, 92 F.3d

329, 332-34 (5th Cir. 1996), cert. denied, 117 S. Ct. 770 (1997).

Such a construction of “working” would read “substantially” right

out of the “substantially limits” language of § 12102(2); it would


                                      10
force an employer to guarantee an employee a specific position.

Such a result would run contrary to the ADA’s intentions.5

       Second, an employer’s concern with a plaintiff’s insurability

could,       as   Johnson     notes,     provide     indirect       evidence   of   the

employer’s        belief    of   the    employee’s        general   unemployability.6

Thus, such evidence could help to meet the “regarded as” prong that

a plaintiff is disabled.            See 42 U.S.C. § 12102(2)(C).

       From the record in this case, however, Johnson has offered no

evidence to raise a genuine issue of material fact that Reynolds’s

concern about insurance costs resulted in Johnson’s termination.

Although Reynolds was concerned that overweight people get sick

more often, and thus increase the costs of health insurance,

Johnson offers no evidence to overcome Baylor’s sworn assertions

that       appearance      standards,    not     insurance     costs,    led   to   his

termination.

       Nor does Johnson offer any evidence that his health insurance

costs      led    Baylor    to   perceive      him   as    generally    unemployable.

Indeed, Johnson’s own discovery revealed that Reynolds, although

worried about health insurance costs of portly people, knowingly

embraced the university’s employment (and presumably also its


       5
        See Heilweil v. Mount Sinai Hosp., 32 F.2d 718, 723 (2d Cir. 1994), cert.
denied, 513 U.S. 1147 (1995); 12 C.F.R. § 1630.2(j)(3)(i) (“The inability to perform
a single, particular job does not constitute a substantial limitation in the major
life activity of working.”).

       6
        See 29 C.F.R. § 1630(l) app. (“[C]ommon attitudinal barriers . . .
frequently result in employers excluding individuals with disabilities. These
include concerns regarding . . . insurance . . . .”).

                                            11
health    insurance     coverage)   of    at   least   two   other   overweight

individuals.



                                      VI.

     The fact of the matter is that this single, particular job

carried    with    it   certain   appearance     standards.      Cf.   Tudyman,

608 F. Supp. at 745 (upholding an airline’s weight limit for flight

attendants).      When Johnson failed to meet these standards, he was

terminated.       There is no error, and the judgment, accordingly, is

AFFIRMED.




                                         12
