             IN THE UNITED STATES COURT OF APPEALS

                                FOR THE FIFTH CIRCUIT
                                             _______________

                                               m 01-50186
                                             _______________



                                            JOHNNY MORENO,

                                                               Plaintiff-Appellee,

                                                  VERSUS

                  PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC.,

                                                               Defendant-Appellant.


                                      _________________________

                              Appeal from the United States District Court
                                   for the Western District of Texas
                                    _________________________
                                            March 28, 2002




Before REAVLEY, SMITH, and DENNIS,                     itan Bottling Company, Inc. (“Pepsi”), in this
  Circuit Judges,                                      title VII and Americans with Disabilities Act
                                                       (“ADA”) case. We affirm.
JERRY E. SMITH, Circuit Judge:*
                                                                             I.
  Johnny Moreno appeals a summary judg-                   Moreno, who is hispanic, had worked for
ment entered in favor of Pepsi-Cola Metropol-          Pepsi since June 1986 as a field service me-
                                                       chanic in the marketing equipment manage-
                                                       ment department. His duties involved install-
   *                                                   ing and servicing cold beverage equipment in
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                       the Kileen-Waco-Bryan area of Texas. By
determined that this opinion should not be pub-
lished and is not precedent except under the limited   1992, Moreno had attained the position of
circumstances set forth in 5TH CIR. R. 47.5.4.         master mechanic and was working under the
direct supervision of Billy Swindell, the mar-            allegations of misconduct. He admits to the
keting equipment manager.                                 violation of the call-swapping procedure but
                                                          notes that the man he swapped with (a white
   In June 1997, Moreno inured his right knee             co-worker) was only reprimanded. As for the
while installing a piece of equipment. He re-             failure to follow proper absence procedures,
turned to work after this incident but operated           Moreno contends he was never in violation of
under a restriction to lift no more than thirty           the policy, because Pepsi never provided him
pounds. In September, he had arthroscopic                 a copy of any written policy, and when asked
knee surgery and subsequently returned to                 to do so in discovery, produced a handbook
work under the same weight restriction. For a             from a different office. Moreno disputes the
few weeks following the operation, he per-                sleeping on the job allegation, claiming the dis-
formed administrative duties, then received               ciplinary action report on the incident does not
full-duty clearance and returned to regular               even mention he was asleep. Finally, he does
work without restriction. In May 1998, he                 not deny smoking in the company warehouse
sprained his ankle while stepping out of a com-           but notes there is a white employee who does,
pany vehicle; this injury did not limit his ability       and notes the presence of ashtrays in the
to perform his job.                                       building. Notably, he does not respond to the
                                                          allegations he was reprimanded and suspended
    In May 1998, Pepsi terminated Moreno,                 for poor job performance while dealing di-
citing his insubordination for refusing to install        rectly with customers.
an ice machine. The parties dispute Moreno’s
disciplinary track record before this incident.              The final incident precipitating Moreno’s
Pepsi points to six acts of misconduct that,              termination involved Swindell’s request that
coupled with the insubordination, justified the           Moreno install an ice machine for a customer.
discharge: A customer complaint relating to               Again, the parties dispute the facts. Moreno
Moreno’s failure to maintain the customer’s               avers he was asked to install a 700-pound ma-
equipment, the swapping of on-call duty, fail-            chine himself, but Pepsi claims Moreno was in-
ure to follow the company call-in procedure               formed that there were a technician and a
for planned absence, a reprimand for sleeping             truck available to help with the installation.
during company time, a charge of smoking in
the warehouse, and a three-day suspension for                 When Swindell discovered the machine was
poor performance in the installation of a dis-            not installed, he called Moreno, who informed
penser.1                                                  him he had swapped call with another employ-
                                                          ee. Pepsi notes this was unauthorized and was
   Moreno responds to only some of these                  not logged in at the dispatch office. The par-
                                                          ties do agree that after Moreno informed
                                                          Swindell of his swapped call status, he turned
   1
      Pepsi also notes an anonymous caller who
                                                          off his pager and phone, leaving Swindell with
claimed Moreno was working his own ice machine            no way to contact him, and thus no way to co-
installation and repair business on company time.         ordinate the installation on time.
Moreno correctly responds that this accusation is
hearsay and is not competent summary judgment
evidence. Fowler v. Smith, 68 F.3d 124, 126 (5th
Cir. 1995).

                                                      2
                      II.                                                   IV.
   Moreno filed a charge of discrimination               The ADA bars discrimination in employ-
with the Equal Employment Opportunity                 ment against those with a disability who are
Commission (“EEOC”) in November 1998 and              otherwise qualified for a job. 42 U.S.C.
amended it in January 1999. He claims to              § 12112(a). To establish a prima facie case, a
have amended the charge once again, in May            plaintiff must (1) have a disability, (2) be
1999, via a letter sent to the Texas Commis-          otherwise qualified, and (3) be subject to ad-
sion on Human Rights. This letter is not in the       verse employment action because of the dis-
EEOC file. The sole basis of his claim of dis-        ability. Ivy v. Jones, 192 F.3d 514, 515 (5th
crimination in these documents was disability.        Cir. 1999).

                                                          “Disability” as used in the ADA means “(A)
   The EEOC issued a right to sue letter in           a physical or mental impairment that substan-
July 1999. Moreno claims to have sent a new           tially limits one or more of the major life
charge to the EEOC in September 1999 alleg-           activities of such individual; (B) a record of
ing he was terminated also because of national        such an impairment; or (C) being regarded as
origin. Moreno sued in September 1999.                having such an impairment.” 42 U.S.C.
                                                      § 12102(2). An “impairment” includes almost
                      III.                            all disorders or conditions affecting one of the
   Moreno offers two legal theories to support        body systems. 29 C.F.R. § 1630.2(h)(1).2 A
his argument that Pepsi discharged him un-            “major life activity” is usually defined by re-
lawfully: a title VII claim based on national         ference to the EEOC guidelines implementing
origin discrimination and an ADA claim based          the ADA. These include “caring for oneself,
on limitations stemming from his knee injury.         performing manual tasks, walking, seeing,
The district court dismissed both claims on           hearing, speaking, breathing, learning, and
summary judgment. Accordingly, we review              working;” also “sitting, standing, lifting, [and]
that judgment de novo. Walton v. Alexander,           reaching.”      29 C.F.R. 1630.2(i); App.
44 F.3d 1297, 1301 (5th Cir. 1995) (en banc).         § 1630.2(i).

    Summary judgment is proper where “there
                                                         2
is no genuine issue as to any material fact and              More specifically, an impairment is
the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c). All in-                  Any physiological disorder, or
ferences from the record must be construed in                   condition, cosmetic disfigurement,
the light most favorable to the non-movant.                     or anatomical loss affecting one
Matsushita Elec. Indus. Co. v. Zenith Radio                     or more of the following body
                                                                systems: neurological, musculo-
Corp., 475 U.S. 574, 587-88 (1986); Walker
                                                                skeletal, special sense organs, re-
v. Thompson, 214 F.3d 615, 624 (5th Cir.                        spiratory (including speech
2000). For a plaintiff to survive summary                       organs), cardiovascular,
judgment, there must be evidence in the record                  reproductive, digestive,
sufficient to sustain a finding in favor of the                 genito-urinary, hemic and lym-
non-movant. Little v. Liquid Air Corp., 37                      phatic, skin, and endocrine.
F.3d 109, 1075 (5th Cir. 1994) (en banc).
                                                         29 C.F.R. 1630.2(h)(1).

                                                  3
    To be “substantially limited,” a plaintiff             plaintiff is disabled for purposes of the ADA is
must show an inability to perform one of the               a case-specific determination. Toyota Motor
listed life activities up to the standards of an           Mfg., Inc. v. Williams, 122 S. Ct. 681 (2002).
average person.3 The question whether a

   3
                                                               In his brief, liberally construed, Moreno
       The regulation reads, in its entirety:              claims he is either disabled or regarded as such
                                                           in that he is substantially limited in the major
          The term substantially limits
                                                           life activities of lifting, walking, climbing, and
          means:
                                                           working. We address these in turn.
          (i) Unable to perform a major life
          activity that the average person in                                     A.
          the general population can                          Moreno avers he is not able to lift in the
          perform; or                                      manner of an average person and thus is
                                                           disabled under the definitions laid out above.
          (ii) Significantly restricted as to              Moreno’s statements as to specific limitations
          the condition, manner or duration                on his ability to lift are scant. The only
          under which an individual can                    concrete examples he has offered involve his
          perform a particular major life ac-              ability to lift at least thirty pounds and his
          tivity as compared to the                        inability to lift 700 pounds (the weight of the
          condition, manner, or duration                   ice machine Swindell allegedly required him to
          under which the average person in                install solo). The ADA does not posit Atlas as
          the general population can
                                                           the average person; Moreno’s inability to lift
          perform that same major life
                                                           more than a quarter ton has no relevance to
          activity.
                                                           the disability question. Even assuming More-
          (2) The following factors should                 no could lift no more than thirty pounds, this
          be considered in determining                     limitation would not constitute a disability
          whether an individual is
          substantially limited in a major
          life activity:
                                                              3
                                                               (...continued)
          (i) The nature and severity of the                        (i) The term substantially limits
          impairment;                                               means significantly restricted in
                                                                    the ability to perform either a
          (ii) The duration or expected                             class of jobs or a broad range of
          duration of the impairment; and                           jobs in various classes as
                                                                    compared to the average person
          (iii) The permanent or long term                          having comparable training, skills
          impact, or the expected permanent                         and abilities. The inability to
          or long term impact of or                                 perform a single, particular job
          resulting from the impairment.                            does not constitute a substantial
                                                                    limitation in the major life activity
          (3) With respect to the major life                        of working.
          activity of workingSS
                                      (continued...)          29 C.F.R. § 1630.2(j)(1),(2).

                                                       4
within the meaning of the ADA.4 Moreno is                                      D.
not disabled because of his limitations in the            Finally, we turn to the major life activity of
major life activity of lifting.                        working, but only after rejecting all other pos-
                                                       sible major life activities. App. 29 C.F.R.
                       B.                              § 1630.2(j); Dutcher v. Ingalls Shipbuilding,
    Moreno’s argument regarding the major life         53 F.3d 723, 726 n.10 (5th Cir. 1995). To be
activity of walking amounts to his testimony           substantially limited in the major life activity of
that his needs to be more careful and cautious         working, a plaintiff must be precluded from a
when walking and cannot walk as far as the             “class of jobs” or “a broad range of jobs.” 29
average person his age. Minor deviations from          C.F.R. § 1630.2(j)(3)(i); Sutton, 527 U.S. 471,
the average person’s ability to walk do not rise       491 (1999).
to the level of substantial limitations on one’s
ability to partake of this major life activity.           Moreno has not offered any evidence he is
Talk v. Delta Airlines, Inc., 165 F.3d 1021,           unable to perform either a class or a broad
1025 (5th Cir. 1999) (“It is clear, however,           range of jobs. Indeed, the summary judgment
that moderate difficulty experienced while             evidence reveals he is currently employed as a
walking does not rise to the level of a                deliveryman for an auto parts wholesaler and
disability.”). Moreno is not disabled because          also operates his own ice machine vending
of his limitations in the major life activity of       business. Moreno is not disabled because of
walking.                                               his limitations in the major life activity of
                                                       working.
                       C.
    Moreno also argues his knee injury renders                               V.
him disabled in that he is unable to engage in            Moreno argues that Pepsi “regarded” him
the major life activity of climbing to the same        as disabled. To be regarded as disabled for
degree as is an average person. Moreno does            purposes of the ADA, the employer must be-
not offer any more definite explanation of how         lieve the employee either
he is limited in climbing. If he means merely
climbing that is attendant to walking, his ar-            (1) Has a physical or mental impairment
gument is foreclosed by Talk. If he means                 that does not substantially limit major
climbing in a more vigorous sense, that                   life activities but is treated by a covered
argument has also been rejected by this circuit.          entity as constituting such limitation;
Rogers v. Int’l Marine Terminals, Inc., 87                (2) Has a physical or mental impairment
F.3d 755, 758 n.2 (5th Cir. 1996) (concluding             that substantially limits major life
that climbing is not a major life activity). Mo-          activities only as a result of the attitudes
reno is not disabled because of his limitations           of others toward such impairment; [or]
in the activity of climbing.                              (3) Has none of the impairments defined
                                                          in paragraphs (h) (1) or (2) of this
                                                          section but is treated by a covered entity
                                                          as having a substantially limiting
   4
     Ray v. Glidden Co., 85 F.3d 227, 229 (5th            impairment.
Cir. 1996) (ho lding that inability regularly to
lift more than ten pounds did not substantially        29 C.F.R. § 1630.2(l). Thus, for the employee
limit the major life activity of lifting).

                                                   5
to be “regarded as” disabled, the employer               few weeks after his knee surgery. That Swin-
must have a perception of the employee’s dis-            dell asked Moreno to help him install the ice
ability, that, if true, would constitute a               machine cuts strongly against any implication
disability. Murphy v. United Parcel Serv., 527           that Pepsi “regarded” Moreno as disabled.
U.S. 516, 521-22 (1999); Dupre v. Charter                Moreno is not disabled within the meaning of
Behavioral Health Sys., Inc., 242 F.3d 610,              the ADA, because his employer did not regard
616 (5th Cir. 2001).                                     him as having any impairment that rises to the
                                                         level of a disability under the ADA.
    Moreno raises this “regarded as” argument
for the first time on appeal. We routinely treat                              VI.
as waived those arguments advanced for the                  Moreno challenges his discharge on the
first time on appeal. Lackey v. Johnson, 116             ground of national origin discrimination.6 In
F.3d 149, 152 (5th Cir. 1997); Hernandez v.              an EEOC “deferral state,” a charge of
Hill Country Tel. Coop. Inc., 849 F.2d 139,              discrimination must be filed with the EEOC
142 (5th Cir. 1988). Although we forego this             not more than 300 days after the alleged
waiver in extraordinary cases, Moreno does               adverse employment action.7 42 U.S.C. §
not present such a case. N. Alamo Water                  2000e-5(e)(1); Byers v. Dallas Morning News,
Supply Corp. v. City of San Juan, Tex., 90               Inc., 209 F.3d 419, 424 (5th Cir. 2000).
F.3d 910, 916 (5th Cir.1996).                            Moreno was terminated by Pepsi on May 28,
                                                         1998; he filed a charge of discrimination on
   Even were we to consider Moreno’s newly-              September 7, 1999, 467 days after the
raised argument, we would be compelled to                discharge.
reject it. His “regarded as” argument stems
almost entirely from his subjective belief that              Moreno’s national origin claim is thus
Pepsi thought he had an ADA disability. He               barred unless he can show his initial charge of
supports this supposition by noting that Pepsi           disability discrimination, filed on November
participated in a disability proceeding before           23, 1998, triggered his national origin claim.
the Texas Worker’s Compensation                          Moreno notes that he completed the blank
Commission. Acknowledging that Moreno                    next to race with the appropriate designation
may have been impaired for purposes of                   (“Hispanic”) on this November 23 charge. His
worker’s compensation does not mean he                   initial charge and his subsequent amendment
necessarily was disabled for purposes of the             on January 11, 1999, make no mention of na-
ADA.5                                                    tional origin discrimination, however.

   The summary judgment evidence shows                      Moreno relies entirely on Sanchez v.
that Pepsi allowed Moreno to work at a desk              Standard Brands, Inc., 431 F.2d 455, 464 (5th
job and then returned him to full duty status a          Cir. 1970), which held that failure to mark the
                                                         appropriate box on the EEOC charge form

   5
     Cf. Cleveland v. Policy Mgmt. Sys. Corp.,
526 U.S. 795 (1999) (holding that disability for            6
                                                                42 U.S.C. § 2000e-2(a)(1).
purposes of Social Security benefits is not
                                                            7
necessarily the same as disability for purposes of          Texas is a deferral state. See Huckaby v.
the ADA).                                                Moore, 142 F.3d 233, 238 (5th Cir. 1998).

                                                     6
does not preclude a suit premised on that              LAB. CODE ANN. § 213.007 (Vernon 2001).8
theory of discrimination. Sanchez further held         Moreno’s argument is without merit.
that a plaintiff’s out-of-time amendment to an
initial charge could add an additional theory of         AFFIRMED.
discrimination if the amendment contained
“mere clarification and amplification of the
original charge.” Id. at 465. Where the out-
of-time amendment alleges a new theory of
discrimination and adds new facts to support
that charge, the new theory of discrimination
is time-barred. Hornsby v. Conoco, Inc., 777
F.2d 243, 247 (5th Cir. 1985). In other
words, the new theory of discrimination must
rely on the facts alleged in the initial charge.
Id.

   Moreno’s claim of national origin
discrimination fails, because it is more
analogous to Hornsby than to Sanchez. His
amended EEOC charge of national origin
discrimination alleges facts that have no
predicate in his initial charge. The factual
narrative in the initial charge describes his
termination as stemming only from a disability
or a perceived disability.

                     VII.
   Moreno contends that the findings of the
Texas Workforce Commission awarding him
                                                         8
benefits should have res judicata effect in this             The statute reads,
federal lawsuit. This issue was not presented
to the district court and is thereby waived.                    A finding of fact, conclusion of
Hernandez, 849 F.2d at 142.                                     law, judgment, or final order
                                                                made under this subtitle is not
    Were we to consider this argument, it                       binding and may not be used as
would be foreclosed by precedent. We give a                     evidence in an action or
                                                                proceeding, other than an action
state agency the same deference it would
                                                                or proceeding brought under this
receive in state court. Univ. of Tenn. v. Elli-                 subtitle, even if the action or
ott, 478 U.S. 788, 799 (1986). The Texas                        proceeding is between the same or
Workforce Commission’s decision is entitled                     related parties or involves the
to no deference in Texas state courts. TEX.                     same facts.

                                                          TEX. LAB. CODE ANN. § 213.007 (Vernon
                                                       2001).

                                                   7
