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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                      No. 16-10270                             FILED
                                                                            July 6, 2017

KRIS ARTHUR,
                                                                          Lyle W. Cayce
                                                                               Clerk

              Plaintiff - Appellant

v.

BNSF RAILWAY COMPANY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:14-CV-1023


Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:*
       Kris Arthur filed this discrimination suit, alleging that BNSF Railway
Company (“BNSF”) refused to hire her because it regarded her as “disabled”
within the meaning of the Americans with Disabilities Act (“ADA”).                             The
district court granted BNSF’s motion for summary judgment, holding that
BNSF did not regard Arthur as disabled under the ADA. Because we find that
Arthur failed to present an issue of material fact to support that BNSF


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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regarded her as disabled, we AFFIRM the district court’s grant of summary
judgment.
                                       I.
      In April 2006, Arthur applied for multiple positions at BNSF, eventually
receiving a conditional job offer for the position of “Assistant Signalperson.”
For nearly 28 years, Arthur had worked as a telephone technician and
lineman. An assistant signalperson is responsible for physical maintenance of
train signal equipment, which was closely related to her prior employment.
The assistant signalperson job involves substantial physical labor, including
digging trenches, climbing and painting signal poles, and heavy lifting. It is a
“heavy labor” position.
      Arthur’s job offer was conditioned on the successful completion of a pre-
employment     medical    examination       and   a   physical-capability     test.
Comprehensive Health Service (“CHS”), a medical services contractor for
BNSF, coordinated BNSF’s pre-employment medical-evaluation process,
including a test assessing the strength and range of motion of prospective
employees’ shoulders and knees. Arthur initially failed this test, but after she
retook it, CHS found that she met the “minimum physical demands of the
essential functions of Assistant Signal[person].”      Arthur also completed a
physical examination and a medical questionnaire.
      CHS submitted Arthur’s medical information to Dr. Michael Jarrard,
who was responsible for making medical-qualification decisions for BNSF
candidates. The information transmitted to Jarrard included notes by CHS
nurses and a BNSF “Occupational Assessment” form completed by the doctor
who examined Arthur for CHS, as well as information from Arthur’s orthopedic
surgeon, primary care physician, and physical therapist. Arthur’s medical
records showed that after an injury in 2003, she began experiencing numbness
in her right hand and pain in her right arm and neck. After having surgery in
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August 2005 and completing physical therapy in early 2006, Arthur’s right arm
continued to “bother[] her.” She began having “problems” with her left neck
and shoulder after she did some manual labor around her farm and started a
job performing telephone installation and maintenance.            In March 2006,
Arthur’s orthopedic surgeon advised her to “cut back a bit on her activities with
the right arm if at all possible to allow the ulnar nerve to resolve,” and to return
to the surgeon when necessary. Arthur’s primary care physician filled out a
questionnaire in September 2006 indicating that Arthur was being prescribed
medication for ulnar neuropathy, muscle pain, and right tendonitis.
      After her medical evaluations, on September 28, 2006, Jarrard notified
Arthur via email that she was “[n]ot currently medically qualified for [the]
safety sensitive Assistant Signalman position due to [the] potential[ly]
significant risk associated with [her] chronic condition of right arm and
cervical thoracic syndrome based on recent neck and arm pain episode.”
Jarrard continued that Arthur could be reconsidered for this position if she
remained “free of recurrent symptoms or treatment for at least 6 months.” He
added that she “may be qualified for other BNSF positions at this time such as
dispatcher, yard master, etc.”
      In response, Arthur submitted a note from her surgeon stating that her
neck and shoulder pain was not chronic and that, to the best of his knowledge,
she had been “pain and symptom free since [March 10, 2006].” Arthur also
submitted a note from a physical therapist stating that she last treated Arthur
in February 2006 and that Arthur had reported being pain-free since March
2006. BNSF did not reverse its decision.
      After exhausting her administrative remedies, Arthur filed this lawsuit
against BNSF alleging, among other things, that BNSF violated the ADA by
denying her employment because it regarded her as disabled. BNSF moved
for summary judgment. The district court granted BNSF’s motion, finding that
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Arthur did not put forth evidence to create a genuine issue of material fact as
to whether BNSF considered her “disabled” under the ADA.
                                            II.
       We review a district court’s grant of summary judgment de novo. 1
Summary judgment is appropriate if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” 2
When reviewing a summary judgment decision, “[t]he evidence of the
nonmovant is to be believed, and all justifiable inferences are to be drawn in
[her] favor.” 3
                                           III.
       The version of the ADA applicable to Arthur’s case 4 makes it unlawful
for an employer to discriminate with regard to hiring “a qualified individual
with a disability because of the disability of such individual.” 5 “The term
‘disability’ means . . . a physical or mental impairment that substantially
limits one or more of the major life activities of such individual” or “being
regarded as having such an impairment.” 6 “The substantiality of a limitation
is analyzed with regard to: (1) the nature and severity of the impairment, (2)
its duration or expected duration, and (3) its permanent or expected permanent
or long-term impact.” 7




       1  Kemp v. Holder, 610 F.3d 231, 234 (5th Cir. 2010).
       2  FED. R. CIV. P. 56(a).
        3 Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986)).
        4 The parties agree that because the events at issue took place before 2008, the

statutory law and regulations in effect prior to the ADA Amendments Act of 2008 apply. See
Milton v. Tex. Dep’t of Crim. Justice, 707 F.3d 570, 573 n.2 (5th Cir. 2013) (ADA Amendments
Act is not retroactive). Thus, the authority cited herein reflects the unamended law.
        5 42 U.S.C. § 12112(a) (2006).
        6 Id. § 12102(2).
        7 Dupre v. Charter Behavioral Health Sys. of Lafayette, Inc., 242 F.3d 610, 614 (5th

Cir. 2001) (quoting Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995)).
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       To regard an individual as having a disability, an employer must “believe
either that [the individual] has a substantially limiting impairment that [the
individual] does not have or that [the individual] has a substantially limiting
impairment when, in fact, the impairment is not so limiting.” 8 For purposes of
defining disability, “major life activities” include reaching or lifting objects, as
well as working. 9 Arthur argues that BNSF regarded her as substantially
limited with respect to the major life activities of lifting, reaching, and working.
   A. Lifting and Reaching
       First, we address Arthur’s lifting and reaching claims. 10 Arthur argues
that BNSF’s suggestion that she could be qualified for certain “light” jobs,
coupled with BNSF’s statement that Arthur was “eligible for other positions
with BNSF that are less physically demanding,” is sufficient evidence to create
a genuine issue of material fact as to whether BNSF considered her
substantially limited in her ability to lift and reach objects.
       Viewing the evidence in the light most favorable to Arthur, we find that
any suggestion that she was regarded as limited in her ability to lift and reach
objects was temporary. We have noted that “EEOC regulations provide that
temporary, non-chronic impairments of short duration, with little or no
permanent long-term impact are usually not disabilities.” 11 It is also true that
“[t]he EEOC Compliance Manual indicates that an impairment that
substantially limits or is expected to substantially limit a major life activity
and whose ‘duration is indefinite and unknowable or is expected to be at least



       8   Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999).
       9   Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir. 1996) (citing Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723, 726 n.7 (5th Cir. 1995)).
         10 See Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 n.10 (5th Cir. 1995) (citing 42

U.S.C. § 12102(2)(A); 29 C.F.R. § 1630 app.) (noting that courts should address limitation on
other life activities before limitation on working).
         11 Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1051 (5th Cir. 1998) (quoting Rogers

v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996)).
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                                   No. 16-10270
several months’ qualifies as a disability under the ADA.” 12 The six-month
timeframe Jarrad imposed on Arthur’s reevaluation was a temporary
condition, not an indefinite or unknowable duration. Jarrad testified in his
deposition that he imposed this condition because Arthur “was temporarily not
qualified because of the significant risk of an injury to herself or coworkers.”
Jarrad explained that the newest assistant signalperson starts at the lowest
level of seniority and is given the heaviest duty jobs like “digging the ditches,
moving the heavy components, working with very heavy batteries, . . . or . . .
climbing ladders.” Because the signalpersons do not work in isolation, Jarrad
said, if Arthur experienced a “flare-up” or a “sudden burst of pain,” she could
have dropped something and been a risk to herself and others. Jarrad testified
that he imposed the six-month waiting period due to her then-recent neck and
arm pain, which could completely subside after that period of time.
      Therefore, Arthur has not presented evidence that there is an issue of
fact to demonstrate she was regarded as substantially limited in her ability to
reach or lift objects because BNSF’s decision not to hire her was a temporary
one. Therefore, she has not shown that she was regarded as disabled in this
respect.
   B. Working
      Arthur also argues that the evidence shows a genuine issue of material
fact as to whether BNSF considered her substantially limited in her ability to
work because BNSF regarded her as only qualified to perform jobs classified
as light-duty work, thereby excluding her from medium- and heavy-duty jobs.
      An applicant is perceived as substantially limited in her ability to work
if she is “regarded as ‘significantly restricted in the ability to perform either a



       EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 618 (5th Cir. 2009) (quoting
      12

DURATION AND IMPACT OF IMPAIRMENT, EEOC COMPLIANCE MANUAL (2007) § 902.4(d)).
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class of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training skills and abilities.’” 13 “A class of
jobs includes ‘jobs utilizing similar training, knowledge, skills or abilities,
within that geographical area.’” 14 Someone who cannot perform any heavy
labor job would be substantially limited in her ability to work even if she was
able to perform another class of labor. 15
       Arthur points to the email written by Jarrad that declared her not
medically qualified for the assistant signalperson position, but did say that she
“may be qualified for other BNSF positions at this time such as dispatcher,
yard master, etc.,” which are light-duty work jobs. This statement, Arthur
argues, amounts to BNSF regarding her as restricted from performing
medium- and heavy-duty jobs.
       We disagree. The evidence demonstrates that BNSF only evaluated
Arthur for the one position she was conditionally hired for, assistant
signalperson, not all heavy-duty jobs. The record is clear, Jarrad testified, “I
only know what I was evaluating her for, which is what she was offered, which
was the assistant signalperson position.” When pressed to give an opinion on
whether Arthur was qualified for a track laborer position, another heavy-duty
job, Jarrad said, after significant prodding and requests for speculation, that
he “most likely” would have found Arthur not medically qualified at the time
“because of the heavy nature of that job.” We are not persuaded that this
statement is enough to create an issue of material fact. Jarrad answered a
hypothetical question and speculated as to his likely medical evaluation in his
response. We also find that Jarrad’s suggestion via email that Arthur may be



       13 Kemp, 610 F.3d at 238 (quoting Sutton, 527 U.S. at 491) (emphasis omitted).
       14 Bridges v. City of Bossier, 92 F.3d 329, 334 (5th Cir. 1996) (quoting 29 C.F.R. §
1630.2(j)(3)(ii)(B)).
       15 29 C.F.R. § 1630 app. § 1630.2(j).

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qualified for other jobs that were light-duty work positions was merely a
suggested list of other jobs with BNSF that Arthur might be qualified for. Once
Arthur remained free of symptoms and treatment for six months she would be
eligible to be reevaluated for the assistant signalperson position.
                                      IV.
      In sum, BNSF determined Arthur was medically not qualified for the
position of assistant signalperson for a limited period of six months. After that
period, she could be reevaluated for the position if she remained free of
recurrent symptoms or treatment. This temporary medical disqualification
from one position did not constitute an exclusion from all other medium- or
heavy-duty jobs.     Because Arthur did not raise an issue of material fact to
demonstrate that BNSF regarded her as disabled under the ADA, the
judgment of the district court is AFFIRMED.




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                                  No. 16-10270
JAMES L. DENNIS, Circuit Judge, dissenting in part:
      Kris Arthur argues that BNSF Railway Company (BNSF) refused to hire
her because it regarded her as “disabled” within the meaning of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. (2006), inasmuch as it
considered her substantially limited in her ability to lift, reach, and work.
Although I agree with the majority opinion’s conclusion that Arthur has not
established a material dispute of fact as to the reaching and lifting issue, I
cannot agree that her claim fails because of the perceived duration of her
injury. Furthermore, that BNSF only evaluated Arthur’s ability to perform a
single job is not dispositive, as our precedents make clear that we should
consider the basis for the hiring decision. For these reasons, as explained in
more detail below, I respectfully dissent from the judgment of the majority
opinion as it relates to Arthur’s perceived ability to work.
                                        *
      The majority holds that BNSF could not have considered Arthur
substantially limited in her ability to lift or reach because her disqualification
from the position of assistant signalperson was only temporary. After noting
that “[t]he EEOC Compliance Manual indicates that an impairment that
substantially limits or is expected to substantially limit a major life activity
and whose ‘duration is indefinite and unknowable or is expected to be at least
several months’ qualifies as a disability under the ADA,” EEOC v. Chevron
Phillips Chem. Co., LP, 570 F.3d 606, 618 (5th Cir. 2009) (quoting DURATION
AND IMPACT OF IMPAIRMENT,      EEOC COMPLIANCE MANUAL (2007) § 902.4(d)),
the majority opinion states that “[t]he six-month timeframe [Dr. Michael]
Jarrard imposed on Arthur’s reevaluation was . . . not an indefinite or
unknowable duration,” Op. at 5–6. But Jarrard said that he intended to
exclude Arthur from consideration for the position of assistant signalperson for


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at least six months, through March of 2007, at which time he would reconsider
her “if [she could] show a period of stability.” Jarrard stated that he believed
Arthur was being treated for chronic pain prior to his assessment and that he
took into account that Arthur had not recovered from surgery within a “typical”
time frame and that “she had done some heavier work” prior to a flare-up of
her condition earlier that year. Arthur’s medical records indicate that her
injury and attendant pain began in 2003 and her pain persisted, at least
intermittently, through 2006.           We have held that where an individual
experienced symptoms over the course of approximately eight months, and the
prognosis for her relapsing-remitting condition was unclear, summary
judgment dismissing the plaintiff’s ADA claim was not appropriate.                       See
Chevron Phillips Chem. Co., 570 F.3d at 618–19. Thus, I do not believe that
Arthur’s perceived limitation was categorically too ephemeral to constitute a
disability for purposes of the ADA. 1
       Nevertheless, I agree with the majority opinion’s ultimate resolution of
this issue because Arthur presents no competent evidence that BNSF
considered her substantially limited in her ability to reach and lift. With
respect to lifting, at best Arthur’s evidence establishes that BNSF considered
her limited in her ability to lift heavy objects, as this is one of the duties of the
assistant signalperson.         As a matter of law, a “restriction on heavy
lifting . . . alone is insufficient for a reasonable jury to find a substantial


       1The majority opinion appears to be influenced by BNSF’s claim that it cannot have
regarded Arthur as disabled because it considered her a safety risk. Under the ADA, an
employer’s qualification standards “may include a requirement that an individual shall not
pose a direct threat to the health or safety of other individuals in the workplace,” 42 U.S.C.
§ 12113(b) (2006), but for purposes of this appeal, BNSF has expressly disavowed the
argument that Arthur posed a “direct threat” to herself or others as an alternate basis for
affirmance. Unfounded concerns about “safety, insurance, [or] liability” can be sufficient to
support “regarded as” claims. See 29 C.F.R. § 1630, App. § 1630.2(l). Thus, whether Arthur
presented a direct threat to herself or others should be irrelevant to our analysis.


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                                  No. 16-10270
limitation on a major life activity.” Sherrod v. Am. Airlines, Inc., 132 F.3d
1112, 1120 (5th Cir. 1998); see Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir.
1996) (restrictions on heavy lifting did not establish that plaintiff was regarded
as having a disability because the inability to perform heavy lifting did not
render him substantially limited in the major life activity of lifting). With
respect to reaching, while BNSF considered her unqualified to perform the
assistant signalperson position, there is no evidence that BNSF considered her
unqualified because of her inability to reach; Jarrard specifically noted that
BNSF did not find any “limitations in the motions of her joints.” I therefore
agree that Arthur has not created an issue of fact as to whether she was
regarded as substantially limited in her ability to reach or lift objects.
      The majority opinion next holds that Arthur has not created a material
issue of fact as to whether BNSF regarded her as disabled inasmuch as it
considered her substantially limited in her ability to work. I respectfully
disagree. An employer does not regard an employee as disabled simply because
it finds the employee incapable of satisfying the singular demands of a
particular job. See, e.g., Kemp v. Holder, 610 F.3d 231, 238 (5th Cir. 2010).
However, it does not follow that BNSF cannot have regarded Arthur as
substantially limited in her ability to work because it only disqualified her from
a single position. We must consider evidence regarding the basis for the
disqualification, not the mere fact of disqualification. In Tullos v. City of
Nassau Bay, 137 F. App’x 638, 649 (5th Cir. 2005), we concluded based on an
employer’s belief that the plaintiff had impulse control and rage disorders that
a “jury could reasonably infer” that the employer’s perception of the plaintiff
“precluded essentially any job involving interaction with others.” Similarly, in
Deas v. River W., L.P., 152 F.3d 471, 481–82 & n.24 (5th Cir. 1998), we found
that even though the plaintiff was only deemed unable to perform the specific


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job of addiction technician at a hospital’s substance abuse treatment unit,
because the basis for her disqualification was her inability to maintain
uninterrupted vigilance, the employer considered her unable to perform jobs
that required “high levels of vigilance or uninterrupted awareness.”
      Here, there is evidence that the disqualification was broader than the
assistant signalperson position.      Jarrard testified that the decision to
disqualify Arthur from the assistant signalperson position was based on his
opinion that, in light of evidence that Arthur “had done some heavier work”
before a flare-up of her condition, the “heavy demands” of the position “put
[Arthur] at risk” of injury. Jarrard could not say whether his disqualification
of Arthur was based on any “specific demands” of the assistant signalperson
position, or his more general concerns about the “heavy physical demands” of
the job.   We cannot fairly assume at the summary judgment stage that his
assessment was strictly limited to the assistant signalperson position: as noted
by the majority opinion, Jarrard testified that he would likely have disqualified
Arthur from another heavy labor position at BNSF based on the “heavy nature
of that job.”    The majority opinion dismisses Jarrard’s statement as
“speculat[ion]” in response to “a hypothetical question.” Op. at 7. Speculative
or not, Jarrard’s statement that he would not have cleared Arthur for another
heavy labor position at BNSF due to its “heavy nature” reasonably supports an
inference that his basis for disqualifying Arthur from the assistant
signalperson position was broader than the singular demands of that
particular position. Viewing the evidence in the light most favorable to Arthur,
I believe that Jarrard’s testimony raises a material dispute as to whether
BNSF regarded Arthur as unable to perform any heavy labor position.




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                                       ***
        For these reasons, I respectfully dissent from the majority opinion as it
relates to Arthur’s claim that she was substantially limited in her ability to
work.




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