                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 97-60444



     EMMA JORDAN,

                            Plaintiff-Appellee-Cross-Appellant,

                                  v.

     KELLWOOD COMPANY,

                            Defendant-Appellant-Cross-Appellee.

                        - - - - - - - - - -
          Appeals from the United States District Court
             for the Northern District of Mississippi
                         (1:95-CV-230-B-D)
                        - - - - - - - - - -

                             July 12, 1999

Before GARWOOD, BARKSDALE, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:*

     Following her removal from a supervisor position, Emma

Jordan sued Kellwood Company (“Kellwood”) for violation of the

Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

§ 12101 et seq. Kellwood appeals a jury verdict in Jordan’s

favor, and Jordan cross-appeals the trial court’s refusal to

instruct the jury on punitive damages. We reverse the trial

court’s decision not to grant Kellwood’s motion for judgment as a

matter of law.

                                   I


     *   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that this opinion should not be published and is not precedent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.
     Jordan worked as a line supervisor for Kellwood at its

Calhoun City, Mississippi textile manufacturing plant. Undisputed

evidence at trial established that being a line supervisor at

Kellwood requires nine to ten hours’ work per day and that the

position cannot be readily split between two employees.

     From March 17 to May 31, 1994, Jordan took a 76-day, fully

paid leave of absence to have a hysterectomy. From September 9 to

November 17, 1994, Jordan took a second fully paid leave of

absence, lasting 70 days, to have coronary bypass surgery. During

Jordan’s second leave, Kellwood assigned employee Carolyn

Hamilton to cover Jordan’s supervisory duties.

     Jerry Ellison, Kellwood’s human resources manager, testified

that he initially thought that Jordan would be able to return to

work around October 24. Upon Jordan’s return to work in November,

her cardiothoracic surgeon, Dr. Gerald Wait, restricted her work

to two hours per day. At that time, Kellwood allowed Jordan to

perform part-time textile repair work for two hours per day and

nonetheless receive her full supervisor salary. Hamilton

continued to perform Jordan’s supervisory duties. Dr. Wait

predicted in November that Jordan would be able to return to

full-time work by January 1, 1995. On December 8, 1994, Dr. Wait

released Jordan to work four hours per day, during which Jordan

performed textile repair and continued to receive her full

supervisor salary.

     Late in December 1994, Ellison and Jordan talked about

Jordan resuming full-time work and her supervisory duties after

the plant’s Christmas holiday. Jordan returned to work on January
3, 1995, without an authorization to work full time. On January

6, she presented an authorization from Dr. Wait to work 6 hours

per day. At that time, Kellwood informed Jordan that it would no

longer hold the supervisor position open for her and that it

would make Hamilton the new permanent supervisor of Jordan’s

former line. Although Jordan offered to convince Dr. Wait to

authorize immediate full-time work, Kellwood remained firm in its

decision. Kellwood offered Jordan her choice of two non-

supervisory, hourly positions: utility worker or production

sewing operator. Kellwood also said that it would consider Jordan

for any supervisory position that became available once she was

able to work full-time. Jordan accepted the utility worker

position and remained employed in that capacity at the time of

trial. No supervisor position had become available by the time of

trial.

     Jordan sued Kellwood, claiming that the company’s decision

to remove her from a supervisor position violated the ADA.

Because Jordan’s wages as a utility worker roughly equal what her

supervisor salary would have been, Jordan sought compensatory

damages only for mental anxiety. She also sought punitive

damages.

     The case proceeded to trial. At the close of the plaintiff’s

case, and again at the close of all evidence, Kellwood moved for

judgment as a matter of law. Kellwood argued that no evidence

indicated that Jordan was disabled for ADA purposes or that

Kellwood discriminated against her on the basis of a disability.


                               -3-
The district court denied both motions. Jordan requested a jury

instruction on punitive damages, which the district court refused

to give. The jury found for Jordan and awarded her $350,000 in

compensatory damages. Kellwood then moved again for judgment as a

matter of law, or in the alternative for a new trial or a

remittitur. The district denied the motion for judgment as a

matter of law and for a new trial but granted the remittitur,

reducing Jordan’s award to $50,000. Jordan accepted the

remittitur. The district court also ordered Kellwood to return

Jordan to a supervisor position as soon as one became available.

     Kellwood appeals the district court’s denial of its motion

for judgment as a matter of law and in the alternative for a new

trial. Jordan cross-appeals the district court’s refusal to

instruct the jury on punitive damages. Because we find that it

should have granted Kellwood’s motion for judgment as a matter of

law, we do not reach the district court’s denial of the motion

for a new trial or its refusal to instruct the jury on punitive

damages.

                               II

     We employ the same standards as the district court in

reviewing its denial of Kellwood’s motion for judgment as a

matter of law. We reverse the district court’s decision only if

the facts and inferences point so strongly and overwhelmingly in

favor of Kellwood that a reasonable jury could not have concluded

that Kellwood violated the ADA. See Robinson v. Global Marine

Drilling Co., 110 F.3d 35, 36 (5th Cir. 1996). A mere scintilla


                               -4-
of evidence that Kellwood violated the ADA is not enough for a

reasonable jury to have found in Jordan’s favor; instead, there

must have been a conflict in substantial evidence. See Boeing Co.

v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969) (en banc).

                               III

     The ADA defines a “disability” as “(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). Jordan did not argue to the jury that she

had a disability at the time that Kellwood demoted her. Instead,

she argued that she had a record of a disability and that

Kellwood regarded her as disabled.

     On appeal, Kellwood argues that Jordan proffered

insufficient evidence to show that she either had a record of a

disability or was regarded as disabled. We first examine whether

the jury had before it sufficient evidence that Jordan had a

record of a disability. We find that it did not. A plaintiff has

a record of a disability only after having had (or when being

perceived as having had) a “disability” as the ADA uses that

term. See, e.g., Hamilton v. Southwestern Bell Telephone Co., 136

F.3d 1047, 1051 (5th Cir. 1998); 29 C.F.R. § 1630.2(k). A one-

time illness2 requiring temporary hospitalization but without


     2   We note that a “record of impairment” in the ADA context
generally refers to a condition that, although not necessarily
present at the time of a challenged employment decision, may
recur. See, e.g., School Board of Nassau County v. Arline, 480
U.S. 273, 107 S. Ct. 1123 (1986) (considering the case of a

                               -5-
strong residual effects is not a substantially limiting

impairment. See, e.g., Colwell v. Suffolk County Police

Department, 158 F.3d 635, 646 (2d Cir. 1998) (finding that a

seven-month recovery from a hemorrhage, with “non-particularized

and unspecific residual limitations,” could not amount to a

record of a disability for ADA purposes); Ellison v. Software

Spectrum, Inc., 85 F.3d 187, 192 (5th Cir. 1996) (finding that

breast cancer requiring a lumpectomy and radiation did not

constitute a record of a disability); 29 C.F.R. § 1630.2(j).

Otherwise, any hospitalized person would become “disabled” under

the ADA, an untenable result. Nothing in evidence suggested that

Jordan had a record of a physical or mental impairment that

substantially limits a major life activity.

     We also find that Jordan presented no evidence that Kellwood

demoted her because it regarded her as disabled. Discrimination

under the “regarded as” prong of 42 U.S.C. § 12102(2) requires

the employer to hold a misperception:

     There are two apparent ways in which individuals may

     fall within [the “regarded as”] statutory definition:

     (1) a covered entity mistakenly believes that a person

     has a physical impairment that substantially limits one

     or more major life activities, or (2) a covered entity

     mistakenly believes that an actual, nonlimiting



school teacher fired for susceptibility to tuberculosis). In this
case, no evidence at trial indicated that Jordan would suffer a
relapse or could not return to work at full strength once she
recovered from her heart surgery.

                               -6-
     impairment substantially limits one or more major life

     activities. In both cases, it is necessary that a

     covered entity entertain misperceptions about the

     individual--it must believe either that one has a

     substantially limiting impairment that one does not

     have or that one has a substantially limiting

     impairment when, in fact, the impairment is not so

     limiting.

Sutton v. United Air Lines, Inc., --- U.S. ---, --- S. Ct. ---,

1999 WL 407488, *12 (June 22, 1999); accord Murphy v. United

Parcel Service, Inc., --- U.S. ---, --- S. Ct. ---, 1999 WL

407472, *4 (June 22, 1999); see also 29 C.F.R. § 1630.2(l).

Jordan’s own doctor told Kellwood that as of January 6, 1995,

Jordan could work only six hours per day, not the nine-to-ten

hours per day necessary for the supervisor position. Kellwood

acted not upon a misperception but upon legitimate medical advice

in deciding that Jordan could not supervise.

     Moreover, Jordan provided no evidence that Kellwood

considered her work ability so limited as to qualify for ADA

protection. For ADA purposes, an individual’s limited working

ability does not amount to a disability unless she is unable to

perform a broad class of jobs. See, e.g., Sutton, 1999 WL 407488,

*14 (“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.”); Murphy, 1999 WL 407472, *4 (“[T]o be


                               -7-
regarded as substantially limited in the major life activity of

working, one must be regarded as precluded from more than a

particular job.”); see also Foreman v. Babcock & Wilcox Co., 117

F.3d 800, 805-06 (5th Cir. 1997). The only evidence that Kellwood

regarded Jordan as substantially limited in her work ability was

Jordan’s own unsubstantiated testimony that the plant manager

called her “nothing but an invalid and a cripple.” A reasonable

jury could not have allowed this alleged statement to overshadow

uncontradicted evidence that Kellwood immediately offered Jordan

her choice of alternate positions, made all necessary

accommodations for her in her new job, paid her for full-time

work while she worked part-time during her recovery, and offered

to consider her for future supervisory jobs. Jordan did not

provide sufficient evidence to show that Kellwood perceived her

as unable to perform a class of jobs.

                               IV

     A reasonable jury could not have found that Jordan falls

within the ADA’s protections. The district therefore erred in

failing to grant Kellwood’s motion for judgment as a matter of

law. The judgment for Jordan in the amount of $50,000 is

REVERSED.




                               -8-
