                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                               No. 01-10065


                           JEFFREY D. WATKINS,

                                   Plaintiff-Appellant Cross-Appellee,

                                     v.

                         ROADWAY EXPRESS, INC.,

                                   Defendant-Appellee Cross-Appellant.


            Appeal from the United States District Court
                 for the Northern District of Texas
                          (3:99-CV-1893-M)

                             August 30, 2001

Before JONES, DeMoss, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

           Defendant-Appellee      Roadway    Express,   Inc.    (“Roadway”)

appeals from the district court’s denial of its motion for judgment

as a matter of law following a jury verdict finding that Roadway

had discriminated against Plaintiff-Appellant Jeffrey D. Watkins

(“Watkins”) on the basis of his disability.          Because we find that

Watkins is not disabled, he has not made out an actionable claim of

discrimination under the Americans with Disabilities Act (“ADA”).

The other issues raised by the parties are moot.                We therefore

reverse and render judgment in favor of 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opinion should not be published and is not precedent except under the limited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.
                                 BACKGROUND

            Watkins was employed as a dockworker by Roadway, a

trucking company, at its Garland, Texas, facility commencing in

1987.   His job consisted primarily of the loading and unloading of

freight of varying weights from trucks onto a loading dock.                 In

June 1995, Watkins injured his back while loading freight at work.

Following    surgery,       physical   therapy,     and    various   medical

procedures, Watkins was given a medical release by his physician

authorizing him to return to work with a 20-pound lifting/carrying

restriction.   Because of this restriction, Roadway did not return

Watkins to duty.   Roadway informed Watkins that all of the jobs on

the docks required the ability to lift in excess of 20 pounds.

This lawsuit ensued.

            Following   a    trial,    a   jury   found   that   Roadway   had

discriminated against Watkins because of his disability.             The jury

awarded Watkins $45,500 in compensatory damages and $450,000 in

punitive damages. After an evidentiary hearing, the district court

determined that Watkins was also entitled to an award of back pay

in the amount of $58,024.       Roadway moved for judgment as a matter

of law.     This motion was granted in part and denied in part:

finding no evidence that Roadway acted with malice, the district

court set aside the jury’s award of punitive damages but left the

underlying finding of disability discrimination intact.                    Both

parties appealed, raising several issues.           One is dispositive.



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                                DISCUSSION

           Because the decision to deny a motion for judgment as a

matter of law is a legal question, we review the district court’s

decision not to grant Roadway’s motion de novo.        However, we do so

viewing the entire trial record in the light most favorable to the

non-movant, Watkins, and drawing all reasonable factual inferences

in Watkins’s favor.   See Burch v. Coca-Cola, 119 F.3d 305, 313 (5th

Cir. 1997).    We reverse a district court’s decision not to grant a

motion for a judgment as a matter of law only where “there is no

legally sufficient evidentiary basis for a reasonable jury to find

for that [non-moving] party on that issue.”        See id.; Fed. R. Civ.

P. 50(a)(1).

           Governed by this standard, we hold that no reasonable

jury could have concluded that Watkins was disabled within the

meaning of the ADA.      There is no dispute that Watkins’s back

condition constitutes an impairment.         But not all impairments are

serious enough to be considered disabilities under the ADA.             To

constitute a “disability,” an impairment must “substantially limit”

a “major life activity.”   See Dupre v. Charter Behavioral Systems,

242 F.3d 610,614 (5th Cir. 2001); Dutcher v. Ingalls Shipbuilding,

53 F.3d 723, 726 (5th Cir. 1995).       Major life activities include

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

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




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working.”    29 C.F.R. 1630.2(h) (2001).1        A person is “substantially

limited” if he is

      1) Unable to perform a major life activity that the
      average person in the general population can perform; or

      2) Significantly restricted as to the condition, manner
      or duration under which an individual can perform a
      particular major life activity as compared to the
      condition, manner, or duration under which the average
      person in the general population can perform the same
      major life activity.

29 C.F.R. § 1630.2(i).

            As a matter of law, Watkins is not substantially limited

in the performance of any major life activity.             First, Watkins is

not substantially limited in the major life activity of working

because he is not significantly restricted in his ability to

perform “either a class of jobs or a broad range of jobs in various

classes . . .” 29 C.F.R. § 1630.2(h)(3)(I); see also Sutton v.

United Airlines,      527   U.S.   471,    491   (1999).     Further,    “[t]he

inability to perform a single, particular job does not constitute

a substantial limitation in the major life activity of working.”

29 C.F.R. § 1630.3(j)(3)(I).

            Here, the only work-related impact of Watkins’s back

injury was his inability to lift, in his own words, “real, real

heavy” boxes.     Despite the 20-pound lifting restriction imposed by

his doctors, at the time of the trial Watkins was working full-time

in a position with the Allen Independent School District that

      1
             The ADA itself does not define either “substantially limits” or
“major life activity,” but the Equal Employment Opportunity Commission (EEOC) has
promulgated regulations under the ADA defining these terms.

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routinely    required   him   to   carry   computer   monitors    and   other

equipment weighing up to 40 pounds.         At trial, in response to the

question “What can’t you do?” Watkins answered that he could not

“lift, you know, 200 or 300 pounds or –- you know, I have weight

restrictions.”     Watkins also testified that he could lift the

“majority”    of   boxes   handled    by   Roadway    without    difficulty,

excluding only “extremely heavy ones” such as a “200 pound box

[that is] eight foot tall.”        Watkins even demonstrated his still-

potent post-injury lifting prowess before the trial court, hoisting

without difficulty a pair of barbells weighing a combined 80 pounds

over his head.

            Watkins’s employment as a manual laborer, his testimony

as to his abilities, and his demonstrated lifting power combine to

show that he is not precluded from all -– or even most -- jobs

involving physical labor or activity.          Watkins’s impairment does

not exclude him from any class of jobs or from a broad range of

jobs in various classes.      Watkins was not so impaired that he could

not continue to earn a living as a manual laborer –- indeed, he was

earning his living in this manner at the time of the trial.                On

this basis, no reasonable jury could conclude that Watkins was

significantly limited in the major life activity of working.

            This conclusion is consistent with this court’s decisions

in previous ADA cases.        We have held that a preclusion from jobs

involving “very strenuous physical activity, prolonged standing or

sitting, heavy lifting, or prolonged walking” does not constitute

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a substantial limitation on working.   Dupre, 242 F.3d at 615.   This

is because “[a]n inability to engage in the kind of intense

physical exertion required of some jobs hardly disqualifies [the

plaintiff] from all jobs involving manual labor.”   Id.   Similarly,

in Sherrod v. American Airlines, 132 F.3d 1112, 1120 (5th Cir.

1998), this court explicitly held that a restriction on heavy

lifting was not alone sufficient to “demonstrate a significant

restriction in the ability to perform either a class of jobs or a

broad range of jobs in various classes.”   Indeed, we indicated that

a heavy lifting restriction disqualified the plaintiff from at most

a “narrow range of jobs.”   Id.

          Nor has Watkins demonstrated a substantial limitation in

any other major life activity.    A restriction on heavy lifting is

not a disability in and of itself so long as the impaired person

“can perform the normal activities of daily living.”   Sherrod, 132

F.3d at 1120.   Watkins is not limited in performing any of the

routine duties of daily living: he drives without assistance, walks

without assistance, can groom and dress himself, can tie his shoes,

works full time, engages in recreation and even plays 18 holes of

golf on a regular basis.

          Watkins does vaguely complain of a reduced ability (but

not an inability) to enjoy sexual relations with his wife, but no

medical testimony or other evidence substantiates his claim.     This

unsupported assertion is insufficient to permit a reasonable jury

to find that Watkins suffers from a disability.     See Conteras v.

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Suncast Corp., 237 F.3d 756, 763 (7th Cir. 2001) (holding that a

plaintiff’s bare assertion that an accident prevented him from

having sex as often as he had previously did not create an issue of

fact as to the existence of a disability).

          In short, because of the seemingly full and active life

enjoyed by Watkins, no reasonable jury could conclude that he was

substantially limited in any major life activity. Watkins was thus

not disabled within the meaning of the ADA, and he has no action

under that statute.   We must REVERSE and RENDER a judgment in favor

of Roadway.

          REVERSED and RENDERED




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