                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                      April 26, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                                 No. 05-10316



TIMOTHY CURL,

                                          Plaintiff-Appellant,

versus

UNITED SUPERMARKETS, LTD.,

                                          Defendant-Appellee.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 5:04-CV-149-C
                         --------------------

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

     Timothy Curl sued United Supermarkets in federal district

court, arguing that United, in violation of the Americans with

Disabilities Act,2 fired him from his job as a doughnut fryer

because of his bipolar disorder.            The district court granted

summary judgment to United, concluding that Curl failed to raise a

genuine issue of material fact that, inter alia, his disorder




     *
        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opinion should not be published and is not precedent except under the limited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.
     2
         See 42 U.S.C. §§ 12101 et seq.
substantially limited a major life activity, including working.

Curl appeals, and we review de novo.3

      Under the ADA, Curl must show, inter alia, that he had a

“disability,” defined as “a physical or mental impairment that

substantially limits one or more of the major life activities of

such individual....”4        Emotional or mental illness can be a “mental

impairment.”5       Major life activities include “functions such as

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

hearing,        speaking,    breathing,       learning,   and    working,”6   and

“substantially limited” means “(i) [u]nable to perform a major life

activity that the average person in the general population can

perform; or (ii) [s]ignificantly restricted as to the condition,

manner     or    duration    under    which    an   individual   can   perform   a

particular major life activity as compared to...the average person

in the general population....”7           Regarding the major life activity

of working, the term “substantially limited” means

      significantly restricted in the ability to perform either
      a class of jobs or a broad range of jobs in various


      3
          See McAvey v. Lee, 260 F.3d 359, 363 (5th Cir. 2001).
      4
        42 U.S.C. §§ 12102(2)(A); Talk v. Delta Airlines, Inc., 165 F.3d 1021,
1024 (5th Cir. 1999). Curl does not allege the other two ways to show a
disability.
      5
          29 C.F.R. § 1630.2(h)(2).
      6
          Id. § 1630.2(i).

      7
        Id. § 1630.2(j)(1). In determining whether a person is substantially
limited in a major life activity, we consider the nature, severity, duration,
and effects of the impairment. Id. § 1630.2(j)(2).

                                          2
      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 on the major life activity of
      working.8

Factors       to     consider   when    determining     whether   someone    is

substantially limited in working include

      (A) The geographical area to which the individual has
      reasonable access;
      (B) The job from which the individual has been
      disqualified..., and the number and types of jobs
      utilizing similar training, knowledge, skills 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..., 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).9

      Even assuming that Curl had an “impairment” affecting his

claimed “substantial life activities” of, inter alia, “sleeping,

concentrating, interacting with crowds of people, thinking, [and]

hearing,” he has not shown a genuine issue of material fact that he

was “substantially limited” in those activities.10                His primary

evidence consists of bald assertions based on textbook explications

of   the     types    of   symptoms    people   with   his   impairment   might


      8
           Id. § 1630.2(j)(3)(i).

      9
           Id. § 1630.2(j)(3)(ii).
      10
        Citing Bragdon v. Abbott, 524 U.S. 624 (1998) and Sutton v. United
Air Lines, Inc., 527 U.S. 471 (1999), Curls argues that “substantially
limited” is a fact question, inappropriately decided on summary judgment. Of
course, courts often decide fact questions on summary judgment - when there is
no genuine issue as to them.

                                         3
experience, failing to show Curl’s own symptoms - his own “own

experience” of substantial limitation.11 Furthermore, that Curl was

able to care for himself, complete a degree program, and work other

jobs despite his impairment, and his testimony that his condition

“hasn’t affect any abilities,” belie his conclusory testimony

regarding his symptoms.12

      Curl also argues that his impairment limited his major life

activity of       working   because    he    could    not   work   night   shifts.

Because he did not present this issue to the district court, it is

waived.13     And even if we were to consider it, he has not raised a

genuine issue of material fact.             He points only to Department of

Labor statistics showing that over four million positions in

various industries involve night shifts, allegedly showing he is

“unable to perform a broad range of jobs in numerous industries.”

Not only are these statistics too broad because not limited to

Curl’s      specific    geographic    area    or     people   with   “comparable

training, skills, or abilities,” but Curl’s inability to perform a


      11
         See Waldrip v. Gen. Elec. Co., 325 F.3d 652, 656 (5th Cir. 2003); 29
C.F.R. § 1630.2(j).
      12
        See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th
Cir. 1996) (en banc). Moreover, as the district court noted, that testimony
referred to problems he was having before resigning from United the first
time, rendering it irrelevant here. Curl concedes this, arguing instead that
United has not produced any evidence showing that Curl no longer suffers from
the same problems. This misplaces the burden of proof, for a plaintiff to
survive summary judgment must proffer facts sufficient to support the claim.
Only then does the non-movant have the burden to come forward with specific
facts in rebuttal.
      13
           See Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir.
1994).

                                        4
job at certain times - as opposed to an inability to perform the

job in general - is an insufficient “inability to perform one

aspect of a job while retaining the ability to perform the work in

general....”14 Indeed, Curl concedes that he could perform the work

of a doughnut fryer during the day and that he held daytime bakery

and sales positions after leaving United.          Curl was not unable to

work a “broad range of jobs in various classes,” he was only unable

to work any job at a range of times.

     For the foregoing reasons, we AFFIRM the judgment of the

district court.




     14
        Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727 (5th Cir. 1995)
(holding that plaintiff’s inability to perform welding job requiring climbing
due to her injured arm was insufficient because she could work as a welder in
general).

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