                                 United States Court of Appeals,

                                         Eleventh Circuit.

                                           No. 97-3019.

                                Rose SWAIN, Plaintiff-Appellant,

                                                 v.

            HILLSBOROUGH COUNTY SCHOOL BOARD, Defendant-Appellee.

                                          July 15, 1998.

Appeal from the United States District Court for the Middle District of Florida. (No. 95-2142-Civ-T-
23B), Thomas G. Wilson, Magistrate Judge.

Before COX and BLACK, Circuit Judges, and RONEY, Senior Circuit Judge.

       BLACK, Circuit Judge:

       Plaintiff Rose Swain appeals the district court's order granting summary judgment for

Defendant Hillsborough County School Board (HCSB) in her suit alleging that HCSB discriminated

against her due to her incontinence in violation of the Americans With Disabilities Act of

1990(ADA), 42 U.S.C. §§ 12101-12213. We hold that Swain does not have a disability as defined

by the ADA and affirm the decision of the district court.

                                       I. BACKGROUND

       Between 1963 and 1981, Swain worked as a teacher and an administrator in the Hillsborough

County school system. Swain took an extended leave of absence beginning in 1981, but returned

to the school system in 1986. Upon her return, Swain worked as a teacher in the GED day program

for at-risk students at Jefferson High School (Jefferson). In 1992, the principal at Jefferson

terminated the program, so Swain transferred to the GED day program at Plant City High School

(Plant City). Swain taught at Plant City for two years without needing any special accommodation
for her incontinence.1

       In order for students to change classes, they are given a period of time (passing time) to go

from one classroom to another. Although the GED students were in self-contained classes and did

not need the passing time, they were permitted to leave their classrooms during that time. In early

1994, William L. Maxwell, Jr., became the principal at Plant City. At the beginning of the 1994-95

school year, Maxwell instituted a policy prohibiting GED students from leaving their assigned

classroom when other students changed classes (no-passing policy). Maxwell adopted the new

policy to eliminate alleged problems with student tardiness.

       Upset by this policy, Swain complained to Maxwell and Dr. Joan Dye, the assistant principal

for adult education at Plant City. She believed the policy was demeaning to herself and her students.

She also complained that she did not have adequate opportunity to use the restroom herself. After

several informal discussions, Swain met with Maxwell on September 15, 1994, to discuss the policy.

According to Swain, Maxwell refused to hear her complaints and threatened to close the GED day

program if Swain continued to protest the policy. In these initial discussions, Swain did not inform

Maxwell or Dye of her physical problems.

       Swain's condition posed no problem when the GED students were permitted to leave the

room during passing time, but the implementation of the no-passing policy limited Swain's access

to the restroom. Although Swain had sufficient access in the morning due to a conference period

and a lunch break, Swain did not have a break between 1:00 P.M. and 3:55 P.M. Due to the length



   1
    Swain suffers from a combination of ailments which requires her to have frequent access to a
restroom throughout the day. In 1954, Swain became incontinent after encountering difficulties
while giving birth. She can experience leakage when she coughs, laughs, or sneezes, and as a
result, she has worn padded undergarments for twenty years. In addition to her incontinence,
Swain suffers from high blood pressure and takes a diuretic, which increases her need to urinate.
Swain also has an abnormal creatinine level that requires her to drink fluids regularly.
of this period, the lack of restroom access became problematic for Swain.

       On October 3, 1994, Swain met with Dye and informed Dye of her incontinence. Dye

suggested that Swain decrease her intake of fluids in the morning or simply leave her class

unattended when she needed to use the bathroom. In a memorandum to Dye and Maxwell, Swain

rejected these suggestions as unreasonable. Dye then suggested that Swain arrange a trade-off in

which Swain would briefly sit in on another teacher's class in the morning during Swain's conference

period, and the other teacher would briefly sit in on Swain's class in the afternoon during that

teacher's conference period so that Swain could use the restroom.

       Swain did not think that exchanging teachers was an educationally sound practice, but she

did find two colleagues who were willing to relieve her for brief periods during their afternoon

conference periods so that Swain could visit the restroom. On October 21, 1994, Swain informed

Maxwell that she had found a teacher to relieve her during the afternoon period and gave Maxwell

the teacher's name. On November 2, 1994, Maxwell again raised the issue with Swain, who

reiterated that the problem was resolved. After this second occasion, Swain made no mention to

Maxwell or Dye of her problem and made no additional request for an accommodation.

       Swain retired on March 31, 1995. In her deposition, Swain stated that she retired because

her relationship with the administration had deteriorated, in large part because she felt the

administration had denigrated the GED program and demeaned her and her students. Swain did not

indicate that her physical impairments or a lack of an accommodation contributed to the decision,

but she later stated in an affidavit in opposition to summary judgment that they were the primary

reason motivating her departure.

       Swain brought this suit alleging that HCSB failed to provide her with a reasonable

accommodation as required by the ADA and that she was constructively discharged by HCSB as a
result of this failure. HCSB then filed a motion for summary judgment. The court granted the

motion because it concluded that Swain did not have a disability under the ADA, and that even if

she did, HCSB reasonably accommodated Swain's disability and did not constructively discharge

her. Swain appealed.

                                          II. ANALYSIS

       We review a district court's grant of summary judgment de novo applying the same standards

as the district court. Harris v. H & W Contracting Co., 102 F.3d 516, 518 (11th Cir.1996). The

court must view all the evidence and all factual inferences reasonably drawn therefrom in the light

most favorable to the nonmoving party. Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d

1278, 1285 (11th Cir.1997). Summary judgment is proper if the pleadings, depositions, and

affidavits show that there is no genuine issue of material fact and that the moving party is entitled

to judgment as a matter of law. Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317,

322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

        To establish a prima facie case under the ADA, Swain must show: (1) she has a disability;

(2) she is a qualified individual; and (3) she was discriminated against because of the disability.2

42 U.S.C. § 12132; see also, e.g., Harris v. H & W Contracting Co., 102 F.3d 516, 519 (11th

Cir.1996). The ADA defines 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.



   2
   The ADA defines "discriminate" to include "not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a disability." 42
U.S.C. § 12112(b)(5)(A).
42 U.S.C. § 12102(2). Swain makes no argument that she satisfies the second or third prong of the

definition. She relies solely on the assertion that her physical ailments substantially limit a major

life activity. Here, Swain claims her impairments affect the major life activity of working. Thus,

to establish a prima facie case and survive summary judgment, Swain must present sufficient

evidence to create a genuine issue of material fact as to whether her physical impairments

substantially limit her ability to work.

       The governing regulations provide guidance to courts determining whether a person's

impairments substantially limit the major life activity of working:

       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.

29 C.F.R. § 1630.2(j)(3)(i). The regulations also outline several factors to be considered in

determining whether an individual's ability to work is substantially limited by her physical or mental

impairments:

               (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, 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 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)(ii).3


   3
    In addition, the Court should consider more general factors such as:

                       (i) the nature and severity of the impairment;
        Based on the criteria enunciated in these regulations, Swain fails to create a genuine issue

of material fact as to whether she is disabled under the ADA. Swain has presented no evidence to

show that she cannot perform a broad range or class of jobs; instead, she simply makes the vague

assertion that she is unable to perform any job that precludes her from having regular access to a

restroom. In essence, Swain argues that she has a disability under the ADA because she has a

physical impairment which precludes her from working in any job that a person with her impairment

cannot perform. Were the Court to accept this tautological reasoning, no physical or mental

impairment would fall outside the scope of the ADA. Although a plaintiff seeking recovery under

the ADA is not required to provide a comprehensive list of jobs which she cannot perform, the

person must provide some evidence beyond the mere existence and impact of a physical impairment

to survive summary judgment. See Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir.1995);

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727-28 (5th Cir.1995); Bolton v. Scrivner, Inc., 36

F.3d 939, 924-44 (10th Cir.1994). Swain has offered no evidence that addresses the factors listed

in the regulations or that otherwise suggests her impairments substantially limit her ability to work.

She has thus failed to create a genuine issue of material fact as to whether she has a disability under

the ADA.

        Not only does the record contain no evidence to support Swain's argument, but Swain's own

testimony and employment record belie any claim that she cannot perform a broad range or class

of jobs that individuals of similar skill, ability, and training can perform. Prior to the events leading




                        (ii) the duration or expected duration of the impairment; and

                       (iii) the permanent or long term impact, or the expected permanent or long
                term impact of or resulting from the impairment.

        29 C.F.R. § 1630.2(j)(2).
to her retirement, Swain worked as a teacher and administrator for nearly 30 years, including 8 years

as a teacher in the GED day program at Jefferson and Plant City. During that period, Swain's ability

to work was unaffected by her impairments. No evidence suggests that Swain's ailments worsened

at any time relevant to this action. Moreover, Swain acknowledged in her deposition that she could

return to teaching. In sum, Swain's proffered evidence does not create an issue of material fact

concerning her inability to perform a broad class of jobs due to her physical ailments.

        We conclude that Swain does not have a disability under the ADA. We therefore need not

consider whether Swain made a sufficient demand for an accommodation after telling Maxwell the

problem had been resolved or whether HCSB reasonably accommodated Swain. Employers have

no duty to accommodate an employee if the employee is not disabled under the ADA. 42 U.S.C. §

12112(a); see also Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 915 (11th Cir.1996).

Similarly, we need not address whether Swain was constructively discharged.

                                        III. CONCLUSION

       Based on the record in this case, we conclude that Swain is not an individual with a disability

as defined by the ADA. We therefore do not reach the reasonable accommodation and constructive

discharge issues. The district court's judgment is affirmed.

       AFFIRMED.
