                          REVISED, April 6, 2000

                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                                No. 99-50612



                             DANIEL D. MCINNIS,

                                                      Plaintiff-Appellant,


                                   VERSUS


                  ALAMO COMMUNITY COLLEGE DISTRICT,

                                                       Defendant-Appellee.




           Appeal from the United States District Court
                 For the Western District of Texas
                               March 20, 2000


Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:

      D. Dwain McInnis (“McInnis”) appeals from the final judgment

entered by the district court, Magistrate Judge Pamela Mathy

presiding, which granted summary judgment to the defendant Alamo

Community College District (“ACCD”) on his claims brought pursuant

to the Americans With Disabilities Act.              The magistrate judge

granted summary judgment after concluding that McInnis failed to

establish a prima facie case of discrimination under the ADA since

he   neither   was,    nor   was   regarded    as   being,   disabled,   and

alternatively that ACCD had presented a legitimate, non-
discriminatory reason for terminating his employment which he

failed      to    establish        was     a   mere     pretext      for       intentional

discrimination.            Because we find that there remain genuine issues

as to the material facts in this case, we vacate the order of the

magistrate judge granting summary judgment in favor of ACCD, and

remand for further proceedings.



                                     I.    BACKGROUND

       In 1975, McInnis suffered a severe closed head injury when he

was    involved       in    an   automobile        accident.    After      a    period   of

rehabilitation, McInnis was able to return to work full time and

has not received any physical therapy since approximately 1980.

His resulting permanent impairments include slurred speech, walking

with    a   limp,     a     language      communication    disorder,       and    partial

paralysis        of   his    right     side.        According   to    McInnis,       these

impairments have substantially limited the major life activities of

walking, speaking, communicating, and performing some manual tasks.

       After having first worked for several banks and bank holding

companies in Beaumont, Texas, McInnis was hired on January 11, 1988

as part of Palo Alto College's (“PAC”) full-time faculty.                          His job

duties included both classroom instruction and coordinating a joint

program sponsored by the American Institute of Banking (“AIB”) and

PAC.    During his employment, McInnis concedes that he did not feel

the need for, nor did he request any, “reasonable accommodation”

for his impairments.              And there is no dispute as to McInnis's

qualifications to perform the essential functions of his position


                                               2
as a business administration instructor.

       At some point in June 1992, McInnis was moved from his

position as coordinator of the AIB/PAC banking program to a full-

time teaching position.        Brian Skinner, who was then president of

PAC, drafted an un-dated letter in which he provided McInnis with

the reasons for his transfer.         He stated that “first, the banking

program was not functioning well and, secondly, you had a handicap

that may have contributed to this problem.                  You were put into

teaching to provide 'reasonable accommodation.'”1

       At some point during his employment as a teacher, a student

complained to Department Chair John Schlegel, who relayed the oral

complaint in writing to Judith Cardenas, the acting Dean of the

Business      and    Applied   Science       Department,    that    McInnis    was

intoxicated in class. Schlegel recommended investigation since the

student who was a trained nurse observed McInnis's slurred speech,

unsteady gait, blood-shot eyes, and pauses during his lecture.                  In

his memorandum, Schlegel also indicated that he believed the

student's impression may have been based upon a misperception

regarding McInnis's disability since her report focused, and was

based primarily upon, his unsteady gait and slurred speech.

       The record contains three letters which were sent from AIB to

ACCD       regarding     McInnis's    performance      as     banking     program

coordinator.        The first, dated June 10, 1991, was sent by Amanda

Talaat,      executive     director    of     AIB,   to     the    Dean   of   the

       1
         The Americans With Disabilities Act went into effect on
July 26, 1992, approximately one month following McInnis's
“accommodation.”

                                         3
Occupational/Technical Education Department at PAC.      The letter

related AIB's concerns about the program and the belief that the

problems were related to McInnis.     The second, dated April 15,

1992, was sent by Peggy Walker, chairman of the AIB board, to John

Schlegel, the Business and Applied Science Department Chair.   That

letter stated that McInnis should not continue as director because

of his problems with “oral communication.”         The third, dated

November 19, 1993, was drafted by William Goetz, chairman of the

AIB board in San Antonio, to Dr. Joel Vela, the new President of

Palo Alto College (Vela was hired in May, 1993).   That letter noted

a marked improvement in the AIB/PAC banking program after McInnis

had been removed and stated that AIB would rethink its relationship

with PAC if McInnis were returned to the position of coordinator.

Ms. Talaat testified that the third letter was prepared at the

request of ACCD, more than one year after McInnis was removed from

the coordinator position, because Dr. Vela “needed it.”

     The decision to renew McInnis's teaching contract in 1993 was

vested in Vela, the new president of PAC.    On November 22, 1993,

Vela informed McInnis by letter that his contract would not be

renewed beyond December 31, 1993.    His termination date, however,

was subsequently extended to the end of the Spring semester of

1994.   Despite this letter, the committees in charge of promotion

and tenure recommended to Vela that McInnis be both promoted and

granted tenure.   Notwithstanding the committees’ recommendation,

Vela recommended to the Chancellor, who in turn recommended to the

ACCD Board of Trustees, that McInnis receive neither a promotion


                                 4
nor tenure.   Predictably, he got neither.        Vela stated in his

deposition that there were two reasons why he did not want to renew

McInnis's contract: (1) the November 19, 1993 letter addressed to

him from AIB, and (2) the allegation that McInnis taught a class

while intoxicated.

     On January 13, 1994, McInnis filed a charge of discrimination

with the EEOC, alleging that he had been discriminated against on

the basis of a perceived disability when his employment contract

was not renewed.   McInnis received a right to sue letter from the

EEOC, and the present lawsuit resulted.

     As noted above, the magistrate judge concluded that McInnis

failed to establish a prima facie case of discrimination under the

ADA since he neither was nor was regarded as disabled.        In the

alternative, the magistrate judge concluded that ACCD had presented

a legitimate, non-discriminatory reason for terminating McInnis's

employment, which he failed to establish was a mere pretext for

intentional discrimination.     McInnis timely appealed.



                          II.    DISCUSSION

     We review the grant of summary judgment de novo, applying the

same standards as the district court.         See Sherrod v. American

Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998).          Summary

judgment under Rule 56 of the Federal Rules of Civil Procedure is

appropriate only if

          . . . the pleadings, depositions, answers to
          interrogatories, and admissions on file,
          together with the affidavits, if any, show
          that there is no genuine issue as to any

                                   5
             material fact and that the moving party is
             entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

      A fact is material if it could affect the outcome of the

lawsuit, and a dispute about a material fact is genuine if the

evidence is such that a reasonable jury could return a verdict for

the non-moving party.          See Anderson v. Liberty Lobby, Inc., 106

S. Ct. 2505 (1986).         In reviewing all of the evidence, courts must

look at the evidence and draw all inferences therefrom in a light

most favorable to the non-moving party.            See Hibernia Nat'l Bank v.

Carner, 997 F.2d 94, 97 (5th Cir. 1993).           Thus, we review all of the

evidence in this case in a light most favorable to McInnis, drawing

all   reasonable       factual      inferences   therefrom       and   making    all

credibility determinations related thereto in his favor.



             1.    The Prima Facie Case of Discrimination.

      This    being     a    case    brought     under     the   Americans      With

Disabilities Act where only circumstantial evidence is offered to

show the alleged unlawful discrimination, we apply the McDonnell

Douglas, Title VII burden-shifting analysis. See Daigle v. Liberty

Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995) (citing McDonnell

Douglas Corp. v. Green, 93 S. Ct. 1817, 1824 (1973)).                  Under this

framework, a plaintiff must first make a prima facie showing of

discrimination by establishing that: (1) He is disabled or is

regarded as disabled; (2) he is qualified for the job; (3) he was

subjected    to   an    adverse     employment    action    on   account   of    his

disability; and (4) he was replaced by or treated less favorably

                                          6
than non-disabled employees.        See Burch v. Coca-Cola Co., 119 F.3d

305, 320 (5th Cir. 1997), cert. denied 118 S. Ct. 871 (1998).                    Once

the plaintiff makes his prima facie showing, the burden then shifts

to   the    defendant-employer     to       articulate    a       legitimate,    non-

discriminatory reason for the adverse employment action.                    Once the

employer articulates such a reason, the burden then shifts back

upon the plaintiff to establish by a preponderance of the evidence

that the articulated reason was merely a pretext for unlawful

discrimination.      See Daigle, 70 F.3d at 396.

      As noted above, the threshold element of a prima facie showing

of discrimination under the ADA is a showing that the plaintiff

either is, or is regarded as being disabled.              Failure to establish

an actual or perceived disability is thus fatal to a plaintiff's

case.      The magistrate judge based her conclusion that McInnis

failed to set forth a prima facie case of ADA discrimination on two

sub-determinations: (1) that McInnis was neither actually disabled

nor regarded as disabled; and (2) that he was not terminated on

account of the alleged disability or perception of disability.                     We

confine our consideration of this case to those two issues.



     A.    Is McInnis either disabled or “regarded as” disabled?

      The    magistrate   judge     properly      identified         the    relevant

standards for defining and determining when one is disabled under

the ADA.    A “disability” under the ADA is defined as “a physical or

mental impairment that substantially limits one or more of the

major     life   activities   of   [an]     individual;       a    record   of   such


                                        7
impairment; or being regarded as having such an impairment.”                42

U.S.C. § 12102.    A “major life activity,” as defined by the EEOC

regulations    includes    such    functions   as   “caring    for    oneself,

performing    manual   tasks,     walking,   seeing,   hearing,      speaking,

breathing, learning, and working.”         29 C.F.R. § 1630.2.       And one is

“substantially limited' in a major life activity if he is:

           (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 condition, manner, or
           duration under which the average person in the
           general population can perform that same major life
           activity.

29 C.F.R. § 1630.2. Furthermore, an individual may be “regarded as

disabled” if he has a physical or mental impairment that does not

substantially   limit     major   life    activities   but   nonetheless    is

treated by a covered entity as constituting such a limitation. See

id.

      With respect to whether McInnis is actually disabled, we note

that the analysis of whether a plaintiff's claimed impairment

interferes with a major life activity in such a substantial way as

to constitute a disability requires an individualized inquiry. See

Sutton v. United Air Lines, Inc, 119 S. Ct. 2139, 2147 (1999).

ACCD argues that McInnis has failed to articulate with specificity

any substantial limitation of his ability to perform everyday

activities, and that what he has alleged is only mild difficulty in

walking, speaking, and performing manual tasks.              ACCD notes that


                                      8
McInnis claims only that, as a result of an automobile accident, he

has somewhat slurred speech (which he calls an expressive language

disorder (“ELD”)), a slight limp which is exaggerated when he is

fatigued, and stiffness and fatigue in his hands which prohibit him

from properly forming script letters.    ACCD also notes that when

provided an opportunity to disclose any physical limitations that

would affect his ability to perform his job functions on his

employment application, he responded “none.”

     ACCD cites several cases in support of its contention that the

mild impairments suffered by McInnis do not rise to the level of

“disability” under the ADA.   See Talk v. Delta Air Lines, Inc., 165

F.3d 1021, 1022-1025 (5th Cir. 1999); Deas v. River West, L.P., 152

F.3d 471, 480 n.2 (5th Cir. 1998), cert. denied, 119 S. Ct. 2392

(1999); McGraw v. Sears, Roebuck & Co., 21 F.Supp.2d 1017, 1021 (D.

Minn. 1998).   However, as noted above, disability determinations

must be made on a case-by-case basis, without strict categorical

reliance on disability determinations made in prior cases as

establishing per se disability or non-disability.   See Sutton, 119

S. Ct. at 2147.

     In the circumstances of this case, we need not reach the issue

of whether McInnis was actually disabled because, even if he does

not suffer from an “actual” disability, McInnis may still recover

if his employer “regards” him as being disabled.        As will be

discussed below our review of the record of this case leads us to

conclude that there remains a genuine factual issue as to whether

McInnis was “regarded as” disabled by his employer.


                                 9
      In order to be “regarded as” disabled a plaintiff must: (1)

have a physical or mental impairment that does not substantially

limit major life activities, but be treated as such by an employer;

(2) have a physical or mental impairment that substantially limits

one   or   more   major      life   activities,    but   only    because   of    the

attitudes of others toward the impairment; or (3) have no actual

impairment at all, but be treated by an employer as having a

substantially limiting impairment.              See Sherrod, 132 F.3d at 1121.

The plaintiff also must establish that the impairment, if it

existed as perceived, would be substantially limiting.                 See Deas,

152 F.3d at 476.

      McInnis appropriately relies on the testimony of ACCD's ADA

compliance coordinator that she could tell from his file that he

was either disabled or perceived as disabled by ACCD.                      Perhaps

understandably, ACCD fails to address this damaging testimony in

its brief.        McInnis also relies on former President Skinner's

letter     in   which   he    told    McInnis    that    his    transfer   was    an

“accommodation” for his “handicap.” ACCD counters that Skinner was

not a decision maker in the adverse employment action taken against

McInnis (contract non-renewal), that the statement was made prior

to enactment of the ADA,2 and that there is no evidence that




      2
       ACCD's argument here is suspect. ACCD is correct that the
ADA was not made retroactive, but there is no support for the
conclusion that pre-ADA activities cannot be used as evidence that
a plaintiff was “regarded as” disabled.         Rather, the non-
retroactivity of the ADA merely removes adverse employment actions
taken prior to enactment from the scope of the statute.

                                         10
Skinner understood the legal meaning of the terms “handicap” and

“reasonable accommodation.”

      ACCD also argues that merely because it may have been aware of

a disability, that does not require a finding that it “perceived”

McInnis as disabled.     And according to ACCD, there is no evidence

that President Vela or anyone whom he consulted prior to deciding

not   to    renew   McInnis's   contract     viewed    McInnis    as    being

substantially limited in any major life activity.

      McInnis   argues   that   he   need   only   establish   that    he   was

regarded as unable to perform or significantly restricted in

performing a major life activity (speech).             He argues that the

reasonable accommodation provided by Skinner in transferring him to

teaching only was to allow him to perform his essential job

functions in spite of his disability (that is, his substantially

limited major life activity of speech).

      Construing all of the evidence and factual inferences in favor

of McInnis, especially the testimony of ACCD's own ADA compliance

coordinator, and irrespective of whether he suffered an actual

disability, there is ample evidence from which a reasonable jury

could find that ACCD perceived or regarded McInnis as disabled

because he was substantially limited in his major life activity of

speaking.



      B.   Was McInnis terminated “because of” his disability?

      In order to make his prima facie showing of discrimination,

McInnis must also establish that he was terminated “because of” his


                                     11
disability.        Here the undisputed evidence is that the stated

reasons   given      by    Vela     for    not    renewing     McInnis's       contract

(effectively    terminating         him)    were     two-fold:     (1)    a   student's

allegation of intoxication in the classroom; and (2) concerns over

his poor performance as banking coordinator.

     Neither of these two reasons is supported by the record of

this case.      By its own admission in its supplemental position

statement to the EEOC, ACCD stated that “the only allegation

related to a 'disability' [the memorandum regarding a student

allegation of intoxication while teaching] was investigated and

summarily dismissed.”            The relied upon complaints about McInnis's

job performance as AIB/PAC program coordinator were stale, as he

transferred to a new position as a teacher some one and a half

years prior to ACCD's decision not to renew his contract, and

McInnis   received        only    outstanding        performance     reviews     as    an

instructor     during      the     one    and    a    half   years   preceding        his

termination.       Moreover, both of the reasons given for McInnis's

termination    are       entirely    related     to    and    predicated      upon    his

perceived disabilities.            He was in effect terminated for his poor

performance    as    banking       coordinator,       and    his   poor   performance

resulted from his disability or perceived disability.                         Likewise,

the intoxication allegation had, by ACCD's own admission, been

summarily dismissed as caused by the symptoms of his disability.

     McInnis states that he was “a disabled employee performing in

an outstanding fashion under a reasonable accommodation [who] was

terminated    as     a    direct    consequence        of    the   symptoms     of    his


                                           12
disability.”          Construing all of the evidence in a light most

favorable to McInnis, we find that a reasonable jury could have

agreed with McInnis's statement and concluded from the evidence

presented that McInnis was terminated because his employer regarded

him as disabled.           We therefore conclude that McInnis has sustained

his initial burden of establishing a prima facie case of unlawful

disability based discrimination.



               2.    Reasonable Inference of Discrimination

      As   noted       above,      under      the     McDonnell         Douglas    framework

applicable to cases based on circumstantial evidence, once a

plaintiff makes his prima facie showing, the burden then shifts to

the   defendant-employer               to     articulate          a     legitimate,     non-

discriminatory reason for the adverse employment action.                             And once

the employer articulates such a reason, the presumption of unlawful

discrimination disappears and the burden then shifts back upon the

plaintiff to establish by a preponderance of the evidence that the

articulated         reason       was        merely       a   pretext         for    unlawful

discrimination.            See Daigle, 70 F.3d at 396.

      In Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th Cir.

1996) (en banc), we held that in order to sustain a finding of

discrimination, “circumstantial evidence must be such as to allow

a   rational        factfinder      to      make     a    reasonable        inference   that

[disability]         was     a   determinative           reason       for   the    employment

decision.”      Id.        With respect to creating such an inference, we

held in Rhodes that “a jury issue will be presented and a plaintiff


                                               13
can avoid summary judgment . . . if the evidence taken as a whole

(1) creates a fact issue as to whether each of the employer's

stated reasons was what actually motivated the employer and (2)

creates    a    reasonable        inference       that     [disability]         was     a

determinative factor in the actions of which plaintiff complains.”

Id.

      McInnis contends that he has satisfied his burden under

Rhodes.       First, he argues that the summary judgment evidence

created establishes that ACCD's two proffered reasons for not

renewing      his     contract    were      neither      legitimate,      nor     non-

discriminatory; he argues that he was terminated for reasons

directly related to the symptoms of his disability.                          Second,

McInnis    argues     that   there    is     ample   evidence      to   establish      a

reasonable      inference     that     his      perceived       disability      was    a

determinative factor in the decision not to renew his contract.

      While     the     reasons      advanced      by    ACCD     for   termination

(intoxication and poor performance as banking coordinator), may be

facially legitimate, we express doubt as to whether they are non-

discriminatory.         As   noted    above,     neither    of    the   reasons       are

supported by the record evidence.               That is, ACCD conceded that the

intoxication allegation was summarily dismissed, and it relied upon

complaints about McInnis's poor performance as the AIB/PAC program

coordinator which were stale by more than one and a half years

without regard to his notably improved performance once transferred

to a teaching only position.             In our view, there was sufficient

evidence presented to create a fact issue as to whether ACCD's


                                           14
stated reasons were what actually motivated the decision to not

renew McInnis's contract.

     Our review of the record also reveals ample evidence from

which a reasonable jury could conclude that ACCD's proffered

reasons     were    nothing   more    than      a    pretext    for   unlawful

discrimination based upon McInnis's perceived disability.                   The

following    is    the   evidence   proffered       by   McInnis,   which   when

construed in his favor, supports an inference of discrimination:

(1) contradictions between Department Chair Schlegel and President

Vela regarding whether they discussed McInnis and the intoxication

allegation; (2) contradictions regarding the disposition of the

intoxication allegation (summarily dismissed or active complaint

serving as primary reason for termination); (3) ACCD's report to

the EEOC which it confessed contained false statements regarding

committee recommendations on tenure; (4) the admission by Vela that

he knew the EEOC statements were false when they were made yet he

did nothing to correct them; (5) ACCD's denial that it ever

accommodated McInnis's disability versus the statement of then-

President Skinner to the contrary; (6) Ms. Talaat being requested

by Vela out of the blue to prepare a letter criticizing McInnis's

earlier performance in a position he no longer held so that the

letter could be used as a “trigger” only days later to terminate

McInnis;3 (7) the sworn contradictions between ACCD's EEO manager


     3
       This fact seems most damning of pretext as Ms. Talaat
specifically stated that she was asked to prepare the letter
complaining about McInnis some one and a half years after he had
been removed from that position because Vela “needed it.”

                                      15
and its ADA coordinator regarding conversations about McInnis and

the reasons for his termination; and (8) the testimony of the ADA

coordinator that she was asked by the EEO manager to destroy

documents which might hurt ACCD's position.

       ACCD    argues    that     Dr.      Vela,   the     decision-maker    in    this

scenario,      was    unaware    of     McInnis's    file,     his   disability,     or

Skinner's alleged accommodation thereof.                    Thus, ACCD argues that

right or wrong, for all Vela knew, McInnis was still the banking

coordinator who performed poorly in the past and who had appeared

for a class intoxicated.              Yet we find that Vela's “ignorance” is

suspect in light of the evidence that he solicited the third

complaint letter from Ms. Talaat specifically to build a case for

firing   McInnis       and     that   he    made   no    effort    to   validate    the

intoxication complaint before making his non-renewal decision.                       We

note that the student's misperception as to McInnis's intoxication

was acknowledged as being related to his disability when in its

EEOC    response,       ACCD    acknowledged        that    her   perceptions      were

disability related and affirmatively represented that the complaint

had been summarily dismissed in order to diminish the effects of

the complaint. However, Dr. Vela stated later that this admittedly

“disability related misperception” formed half of the basis for his

decision to take adverse action against McInnis.

       We conclude that McInnis has put forth evidence which a

reasonable jury could use to determine that the true, driving

reason   for    not     renewing      McInnis's     contract      was   impermissible

discrimination based on his actual or perceived disability.                       Thus,


                                             16
we also conclude that the magistrate judge erred in finding as a

matter of law that McInnis failed to create a genuine issue of

material fact as to that issue.   A reasonable jury, viewing all of

the evidence in a light most favorable to McInnis, could certainly

resolve these matters in his favor.    As such, and thus, summary

judgment was improvidently entered against him.



                         III.   CONCLUSION

     For all of the foregoing reasons, we VACATE the magistrate

judge's order granting summary judgment in favor of ACCD and REMAND

this cause for further proceedings consistent herewith.




                                  17
