                         Revised August 2, 1999

                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit



                                No. 98-20351



            EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                   Plaintiff - Appellant,



                                 MARY BOYLE,

                                      Intervenor Plaintiff - Appellant,



                                   VERSUS


                        R.J. GALLAGHER COMPANY,

                                                    Defendant - Appellee.




          Appeals from the United States District Court
                for the Southern District of Texas


                                July 15, 1999
Before WIENER, DeMOSS, and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

     The Equal Employment Opportunity Commission and Mary Boyle,

executrix of the Michael Boyle estate, appeal the district court’s

adverse grant   of    summary    judgment   on   their   claims   that   R.J.
Gallagher Company breached an employment contract and violated the

Americans with Disabilities Act when Michael Boyle was demoted from

his   position   as     president   and    subjected    to    a   fifty-percent

reduction in salary.          Boyle also alleges that the filing of a

lawsuit against him constituted unlawful retaliation under the ADA.

We    conclude   that     a   material     factual     dispute    precludes   a

determination on summary judgment that the company did not breach

its employment contract with Boyle. We also conclude that there is

a material factual dispute concerning whether Boyle had a record of

disability or was regarded as having a disability.                 Finally, we

conclude that the filing of a lawsuit does not trigger the ADA’s

anti-retaliation provisions.          Accordingly, we affirm in part,

vacate in part, and remand for further proceedings.



                                      I.

      In this appeal from summary judgment entered in favor of the

employer, we consider the facts of the case in the light most

favorable to the appellants.

      Michael Boyle worked for over twenty years for R.J. Gallagher

Company (hereinafter, “Gallagher Co.”), a distributor of steel

pipe, valves, and tube.          Over the course of his employment he

worked his way up from salesman to president.                In February 1990,

when Boyle was executive vice president, Boyle and Gallagher Co.

entered into an employment agreement under which Boyle would earn



                                     -2-
an annual salary of $205,000.     That agreement provided that it

would “automatically be renewed for consecutive one-year periods,

unless either party gives notice to the other that said party does

not intend to renew and extend this agreement.”   The agreement was

modified in February 1991 to extend Boyle’s employment term to

three years.

     In February 1993, Boyle was promoted to president.   Over the

course of his tenure as an executive of Gallagher Co., Boyle was

routinely praised for the excellence of his job performance.

Robert Gallagher, Jr. (hereinafter, “Gallagher”), chief executive

officer and chairman of the board of Gallagher Co., told Boyle in

late 1993 that the company expected and desired that Boyle would

stay in office until reaching the retirement age of sixty-five.

     At the same time, Boyle began to experience health problems.

Testing revealed that he had an elevated white blood cell count.

He began to wear glasses with one darkened lens because he suffered

from double vision.    Coworkers commented upon Boyle’s unhealthy

appearance.

     On December 15, 1993, Boyle was diagnosed with myelodysplastic

syndrome (MDS), a form of blood cancer.    His doctor recommended a

month of chemotherapy treatment.      The timing was favorable for

undergoing this treatment because of slow business during the

holiday season.   Boyle informed Gallagher Co. of his prognosis and

made appropriate work assignments to assure smooth operations



                                -3-
during his absence.       He was treated over the course of thirty days,

during which time he stayed in touch with the office and continued

to make executive decisions and work assignments.

       Boyle was released from the hospital on January 18, 1994,

having lost all the hair on his head, his eyelashes and eyebrows,

and twenty-five pounds.       He spoke with Gallagher on January 19 and

gave an update on his condition.            Gallagher asked to speak to or

meet with Boyle after a scheduled doctor’s appointment on January

21.    Boyle’s treating physician, Dr. Hagop M. Kantarjian, was not

available on January 21 and Boyle saw a different doctor.                    The

visit with Dr. Kantarjian was rescheduled for January 25.                Boyle

spoke to Gallagher after the January 21 visit and informed him that

he would return to work on January 26.               Gallagher asked Boyle

several questions about whether Boyle would be able to work a full

day and how many hours he would be able to work.

       On January 25, Dr. Kantarjian declared Boyle’s cancer to be in

“complete remission” and advised that he could return to work

without     limitation,    other    than   six   monthly   three-to-five     day

chemotherapy sessions.        Upon his return to work at 9:00 a.m. on

January 26, Boyle was immediately and aggressively confronted in

his office by Gallagher, who demanded to know whether Boyle would

be able to continue as president.           Boyle conveyed the information

he    had   received   from   Dr.   Kantarjian,     but    Gallagher   was   not

satisfied; he wanted Boyle to guarantee that he could continue



                                      -4-
serving as president of the company.   Boyle responded that he and

his doctors had reason to be optimistic, but that there was no way

to guarantee that the cancer would not return. Gallagher expressed

doubt that Boyle could continue to work after being treated for

cancer, as well as concerns about the company’s profitability under

Boyle’s leadership. He also demanded a report from Boyle’s doctor.

Boyle reiterated that he felt that he was able to work, that his

doctors knew of no medical impediment to his doing so.          He

confirmed his intention to continue working until he reached the

age of sixty-five.   Boyle also stated that he would schedule his

chemotherapy on weekends to minimize his time away from the office.

     Gallagher suggested that Boyle should retire and alluded to

his knowledge that Boyle had completely paid for his home and had

over $600,000 in his retirement account.    After Boyle reiterated

his intention to keep working, Gallagher ended the meeting by

demoting Boyle to the position of executive vice president and

telling Boyle that his compensation would be reduced by half.

Boyle expressed dissatisfaction with the reassignment, but said he

would think about it.   The next day, Gallagher issued a memorandum

which stated that Boyle had been demoted to vice president of

sales, an even lower position than the executive vice president

position offered the previous day, and a lower position in the

corporate hierarchy than any Boyle had occupied for the past




                                -5-
fifteen years.     Boyle was humiliated and demoralized by this

demotion.

     Boyle entered the hospital again on January 28 for a scheduled

chemotherapy   treatment.   He   and   Gallagher   corresponded   about

Gallagher’s decisions and Boyle’s prognosis.       On February 8, Boyle

wrote to Gallagher and declined to accept the demotion and pay cut.

Gallagher responded on February 10, once again accusing Boyle of

poor performance and reiterating the importance of the president’s

position.   Gallagher also claimed that he had been left in the dark

about the “full ramifications” of Boyle’s condition, and he stated

his belief that Boyle’s employment contract had expired on January

31, and that Boyle had rejected the company’s offer of continued

employment. Gallagher also noted that Boyle’s medical coverage had

been paid through the end of the month (February 1994).           Boyle

replied on February 16, enclosing a copy of Dr. Kantarjian’s

written statement of Boyle’s prognosis. Boyle insisted that he had

kept Gallagher Co. fully apprised of his condition, and that the

automatic renewal provision in his contract had extended the

contract for an additional year.       Boyle ended his letter with a

note of concern about his medical coverage, pointing out that he

understood his employment contract to have pledged medical coverage

for life.   Gallagher replied on February 17, asserting that the

“sparse information” provided by Dr. Kantarjian did not help his

understanding of Boyle’s condition.     He stated, “What your doctor



                                 -6-
does say is that you can return to work, but I have not seen you

here.”

     Boyle never did return to the office.          On April 21, 1994,

Boyle filed a charge of discrimination with the Equal Employment

Opportunity Commission.

     The EEOC filed this suit, seeking injunctive relief for Boyle,

based on its allegations that Gallagher Co. had violated the

Americans with Disabilities Act (ADA) by constructively discharging

Boyle and otherwise discriminating against him.          Boyle intervened

and alleged, among other things, that Gallagher Co. had breached

his employment contract.      The district court initially granted

summary judgment   in    Boyle’s   favor.   Then,   in    December   1994,

Gallagher Co. filed suit against Boyle and others, alleging among

other things that Boyle had breached his employment contract and

his fiduciary duties by serving on the board of directors of Burch

Biscuit Company. That action was removed to federal district court

and consolidated with the action already pending there.              Boyle

added a claim of retaliation under the ADA, based on the lawsuit

filed by Gallagher Co.

     In April 1997, the district court reversed course and granted

motions for summary judgment which had been filed by Gallagher Co.

The court decided that its earlier ruling -- that Gallagher Co. had

breached its employment contract with Boyle -- had been in error.

See EEOC v. R.J. Gallagher Co., 959 F. Supp. 405, 409-10 (S.D. Tex.



                                   -7-
1997). The district court subsequently granted summary judgment in

favor    of   Gallagher     Co.    on   its      counterclaims      against   Boyle,

disposing of all remaining issues in the case.                The district court

also awarded Gallagher Co. its attorneys’ fees, to be collected

from the Boyle estate1 and the EEOC.

     Both     the    EEOC   and    Boyle    timely   appeal    from    the    summary

judgment awarded in favor of Gallagher Co. on their claims against

Gallagher Co., as well as the award of fees.



                                           II.

     Boyle alleges that Gallagher Co. breached its employment

contract with him when his salary was cut in half.                    Gallagher Co.

responds      that   Boyle’s      employment      contract    had    expired,   and,

alternatively,       that   Boyle’s     preceding     material      breach    excused

Gallagher Co. from performance.




     1
          Michael Boyle died in January 1995, and his wife, Mary
Boyle, was substituted as a party in her capacity as executrix of
his estate. For the sake of brevity and simplicity, hereinafter
this opinion refers simply to “Boyle,” although all legal actions
after his death were obviously undertaken by Mary Boyle on behalf
of the Michael Boyle estate, not by Michael Boyle himself.


                                           -8-
                                    A.

     Section 3.1 of the “Executive Employment Agreement,” as it

originally provided effective February 1, 1989, established Boyle’s

salary as follows: “During the period of Employee’s Executive

Employment, Employer shall pay to Employee an annual salary herein

called ‘Base Salary’ of $145,000.00/xx per year in approximately

equal monthly installments.” The amount of salary was hand-written

in a blank.     When the Agreement was first revised and renewed

effective February 1, 1990, the original salary amount was crossed

out and revised to read “$205,000.00/xx.”            Section 1.2 of the

Agreement,    including   its   handwritten   1990   revision,   reads   as

follows:

                Executive Employment.     Employer employs
           Employee as a member of the Board of Directors of
           the R. J. Gallagher Company and as its Executive
           Vice   President,    and  Employee   accepts   such
           employment, for a one year term beginning December
           February 1, 1989 90.      Said term is sometimes
           hereinafter referred to as the term of “Executive
           Employment.”      However, this Agreement shall
           automatically be renewed for consecutive one-year
           periods, unless either party gives notice to the
           other at least sixty (60) days prior to the
           termination date that said party does not intend to
           renew and extend this Agreement.

An “Extension and Amendment of Executive Employment Agreement” was

executed on February 12, 1991, and it provided:

                Extension of agreement.   Employer and Employee
           hereby agree to extend the term of the Executive
           Employee Agreement between Employer and Employee,
           dated February 1, 1990, for an additional three (3)
           years, commencing February 1, 1991, and expiring



                                   -9-
            January 31, 1994. Employee shall continue             to
            receive a base salary of $205,000.00 per year.

The district court concluded that “[d]emoting Boyle did not violate

the contract because it was for a term and not a position.”        959 F.

Supp. at 409.2

     Boyle contends that when Gallagher Co. failed to provide

notice of its intention not to renew the Agreement sixty days

before the expiration of the employment term on January 31, 1994,

the contract automatically renewed for one year pursuant to section

1.2 of the Agreement.         Gallagher Co. responds that the 1991

Extension and Amendment negated the automatic renewal provision of

the original Agreement, replacing it with a three-year term with no

automatic   renewal.    The   company    therefore   contends   that   the

contract expired on January 31, 1994, at which time Boyle became an

at-will employee.

     Texas law requires that we read a contract and its subsequent

modifications as a whole, giving effect to new provisions and

discarding old provisions which are inconsistent with the new

terms.   See, e.g., Boudreaux Civic Ass’n v. Cox, 882 S.W.2d 543,

547-48   (Tex.    App.--Houston    [1st    Dist.]    1994,   no    writ).

Furthermore, we must interpret a contractual agreement so as to


     2
          We are inclined to agree that the demotion did not
constitute a breach. As the district court noted, the Agreement
“was for a term and not a position. It had been signed when Boyle
was vice-president.” 959 F. Supp. at 409. Boyle does not press
this point on appeal.


                                  -10-
give effect to each and every provision of the contract.         See

Westwood Exploration, Inc. v. Homestate Savings Ass’n, 696 S.W.2d

378, 382 (Tex. 1985).   The renewal provision was still part of the

contract after Boyle and Gallagher Co. adopted the Extension and

Amendment.   The operative sentence, “However, this Agreement shall

automatically be renewed for consecutive one-year periods, unless

either party gives notice to the other at least sixty (60) days

prior to the termination date that said party does not intend to

renew and extend this Agreement,” is not inconsistent with an

initial three-year term. Whatever came before, the employment term

“shall automatically be renewed . . . unless either party gives

notice.”   The Extension and Agreement does not explicitly disavow

automatic renewal, so the flaw of the interpretation suggested by

Gallagher Co. is that it fails to give meaning to the still

operative renewal terms.   We therefore conclude that Gallagher’s

reduction of Boyle’s salary was a material breach -– unless Boyle

had already breached the contract, thereby excusing Gallagher Co.

from performance.



                                 B.

     Gallagher Co. alleges that Boyle breached another provision of

the Agreement –- that which required him to “[d]evote his full time

and best efforts towards furthering the interest of Employer.”    If

Boyle materially breached the Agreement first, Gallagher Co. was


                                -11-
excused from performance.             See, e.g., Hernandez v. Gulf Group

Lloyds, 875 S.W.2d 691, 692 (Tex. 1994).

       Gallagher Co. points to Boyle’s service on the board of

directors of Burch Biscuit Company as being inconsistent with his

duty to devote his best efforts to Gallagher Co.                 Gallagher Co.

also       alleges   that   Boyle   abused    his    executive   privileges    by

submitting fraudulent reimbursement requests.

       With respect to Boyle’s involvement with Burch Biscuit, the

evidence offered by Gallagher Co. shows that Boyle spent “some of

his time” attending meetings, and received $10,000 in annual

salary. Gallagher Co. asserts that if Boyle spent some time, i.e.,

any    time    at    all,   working   for    Burch    Biscuit,   that   work   is

inconsistent with devotion of “full time and best efforts” to

Gallagher Co. and therefore constitutes a breach.                 We disagree.

The evidence shows that Boyle’s duties and actual performance were

limited to attendance at one annual board meeting.               “Full time and

best efforts” obviously does not mean that Boyle had to devote

twenty-four hours a day, or even every waking hour, to advancing

the interests of Gallagher Co.3             A weekend family vacation would


       3
          See Transamerica Ins. Co. v. Frost Nat’l Bank, 501 S.W.2d
418, 423-24 (Tex. Civ. App.--Beaumont 1973, writ ref’d n.r.e.)
(quoting with approval Long v. Forbes, 136 P.2d 242, 246 (Wyo.
1943) (“The cases seem to hold that full-time employment does not
mean that the employee may not have some time that he may use in
his personal affairs, or in other business, without breach of the
employment contract.”)).



                                       -12-
not be inconsistent with working “full time” for Gallagher Co., and

neither was attending one Burch Biscuit board meeting a year. “Best

efforts” means “such efforts as are reasonable in the light of that

party’s ability and the means at its disposal and of the other

party’s justifiable expectations.”4 Burch Biscuit does not compete

with Gallagher Co., and therefore Boyle’s assistance to Burch

Biscuit was not inconsistent with providing “best efforts” on

behalf of Gallagher Co.      We thus conclude that the mere fact of

Boyle’s status as a director of Burch Biscuit did not constitute

breach of a “full time and best efforts” clause.

     With   respect   to   Gallagher   Co.’s   allegations   that   Boyle

misappropriated its funds by submitting improper reimbursement

requests, Gallagher Co. relies on evidence that Boyle requested

reimbursement for business meals and entertainment that either

never took place or that Boyle did not pay for.       These charges are

supported by the statements of individuals listed on Boyle’s

reports as those whom he had entertained.        Gallagher Co. contends

that the filing of false expense reports was inconsistent with the

fiduciary duties owed to it by Boyle.          In response, Boyle swore

that he did not submit false reports, specifically denying each of

the charges of Gallagher Co.    This is a swearing match -- a factual




     4
            E. Allan Farnsworth, Contracts § 7.17, at 553 (2d ed.
1990).


                                  -13-
dispute which must be resolved by the ultimate fact finder, not by

the judge on summary judgment.

     In sum, by submitting false expense reports Boyle may have

breached his employment contract before Gallagher Co. did. For the

time being, however, that is a question of disputed material fact.

The question of whether Gallagher Co. committed an actionable

breach depends on the resolution of this dispute, and that question

therefore cannot be resolved on summary judgment.



                                      III.

     The district court concluded that Boyle was not covered by the

ADA because he did not have a “disability” as that term is

understood under the statute.          For the purposes of the ADA, an

individual has a “disability” if he has “a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual,” if he has “a record of such an

impairment,”   or   if    he   is   “being   regarded   as   having   such   an

impairment.”    42 U.S.C. § 12102(2).

     We   review    the   district    court’s   determination    on   summary

judgment de novo, applying the same standards as does the district

court.    See, e.g., Chaney v. New Orleans Pub. Facility Management,

Inc., No. 98-30063, 1999 WL 402551, at *2 (5th Cir. June 17, 1999).

We shall consider each category of ADA “disability” in turn.




                                      -14-
                                    A.

     The   district   determined   that    Boyle    was   not     disabled   by

employing the following analysis:

                The analysis       under   the     act    poses    these
           questions:

           •    Can you walk, see, hear, speak, breathe, lift,
                learn, etc? (objective function)

           •    Despite the combination of these inabilities,
                are you substantially unrestricted in your
                ability to work and take care of yourself?
                (abstract function)

           •    Is the objective function essential to the
                job? (qualification)

           •    Is more than a reasonable accommodation needed
                for you to be able to be at work to do the
                job? (accommodation)

           •    Is there a plausible explanation for the job
                action?   (contradiction  of   inference  of
                irrational reaction--“reactive distaste”)

                An answer of “yes” to any one of these
           questions defeats a claim. For Boyle, no matter
           which questions are assumed to be “no,” the record
           shows a “yes” answer to another one.

959 F. Supp. at 405.

     The EEOC and Boyle contend that this test is not grounded in

statutory or common-law authority, and it fails to consider the

effect of Boyle’s cancer in its unmitigated state.

     We reject the five-part test employed by the district court,

mainly because it unnecessarily complicates matters.                The plain

text of the ADA prescribes three marks of a “disability” under




                                   -15-
§ 12102(2)(A): (1) impairment (2) affecting a major life activity

and (3) resulting in substantial limitation of that major life

activity.    The Supreme Court demonstrated the application of this

test in Bragdon v. Abbott, 524 U.S. 624, 118 S. Ct. 2196 (1998),

and we follow that example.



                                           1.

       We do not doubt that Boyle’s affliction with MDS qualifies as

a physical impairment under § 12102(2).                  The affidavit of Boyle’s

treating physician, Dr. Kantarjian, describes MDS as “a disorder or

condition of the blood and bone marrow that primarily effects [sic]

the hematopietic system, and may infiltrate other body systems,

such   as   the    neurologic         system.”        Without    treatment,     Boyle’s

condition     would      have    resulted        in    “severe    anemia,     systemic

infection, internal bleeding” and would “infiltrate other organs or

body systems.”         As Gallagher Co. concedes that MDS is a qualifying

impairment,       we    need    not    further    explore       whether   MDS    is   an

impairment.



                                           2.

       Next, we consider whether Boyle’s MDS affected a major life

activity.     As a threshold matter, the EEOC and Boyle have argued

that Boyle’s condition should be analyzed without consideration of

the mitigating influence of medical treatment.                       Thus, we would


                                          -16-
assume that Boyle was suffering from “severe anemia, systemic

infection, internal bleeding” and that his MDS would “infiltrate

other organs or body systems.”    As a result, in Dr. Kantarjian’s

words, Boyle would be “bed ridden and unable to perform the

ordinary activities of his life, such as caring for himself,

walking, seeing, working, or other major life activities.”

     We do not doubt that Boyle’s condition, if left untreated,

would affect the full panorama of life activities, and indeed would

likely result in an untimely death.     Use of the predicted effects

of the impairment in its untreated state for the purposes of

considering whether a major life activity has been affected by a

physical or mental impairment has, however, been foreclosed by the

recent opinion of the Supreme Court in Sutton v. United Air Lines,

Inc., 67 U.S.L.W. 4537 (U.S. June 22, 1999).    The Court made clear

that § 12102(2)(A) requires “that a person be presently -- not

potentially or hypothetically -- substantially limited.”     Sutton,

67 U.S.L.W. at 4540; see also HCA Health Servs. v. Washington, 67

U.S.L.W. 3783 (U.S. June 24, 1999), vacating 152 F.3d 464 (5th Cir.

1998); Murphy v. United Parcel Serv., Inc., 67 U.S.L.W. 4549, 4550

(U.S. June 22, 1999); Albertsons, Inc. v. Kirkingburg, 67 U.S.L.W.

4560, 4563 (U.S. June 22, 1999).        “A person whose physical or

mental impairment is corrected by medication or other measures does




                                 -17-
not have an impairment that presently ‘substantially limits’ a

major life activity.”   Sutton, 67 U.S.L.W. at 4540.

      We must consider the actual effects of Boyle’s impairment and

the side effects of his treatment.     That being the case, the only

major life activity which the EEOC and Boyle have alleged to have

been affected by that impairment was Boyle’s ability to work.

Although Boyle could carry out the duties of his job, the fact that

he had to receive monthly chemotherapy treatments lasting three to

five days meant that he would have to be away from the job for one

to three days of an ordinary work week each month.

      Just as the Bragdon Court did with respect to reproduction, we

conclude based on the plain text of the ADA that working is a

covered “major life activity.”5    The Court in Bragdon explained


  5
     Our Court has routinely echoed the guidance of the EEOC’s
interpretive guidelines concerning which activities constitute
“major life activities.” The EEOC’s list includes “functions such
as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.” 29 C.F.R.
§ 1630.2(i), cited in Zenor v. El Paso Healthcare Sys., Ltd., 176
F.3d 847, ___ n.8 (5th Cir. 1999); Gonzales v. City of New
Braunfels, Tex. ex rel. New Braunfels Police Dep’t, 176 F.3d 834,
___ (5th Cir. 1999); Talk v. Delta Airlines, Inc., 165 F.3d 1021,
1024-25 (5th Cir. 1999) (summary calendar); Pryor v. Trane Co., 138
F.3d 1024, 1026 & n.10 (5th Cir. 1998) (summary calendar); Hamilton
v. Southwestern Bell Tel. Co., 136 F.3d 1047, 1050 n.8 (5th Cir.
1998); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th
Cir. 1998); Still v. Freeport-McMoran, Inc., 120 F.3d 50, 52 (5th
Cir. 1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36
(5th Cir. 1996); Riel v. Electronic Data Sys. Corp., 99 F.3d 678,
682 (5th Cir. 1996); Bridges v. City of Bossier, 92 F.3d 329, 332
(5th Cir. 1996); Rogers v. International Marine Terminals, Inc., 87
F.3d 755, 758 n.2 (5th Cir. 1996); Ray v. Glidden Co., 85 F.3d 227,


                                -18-
that “‘[t]he plain meaning of the word “major” denotes comparative

importance’ and ‘suggest[s] that the touchstone for determining an

activity’s    inclusion     under      the   statutory       rubric    is    its

significance.’”     Bragdon, 118 S. Ct. at 2205 (quoting Abbott v.

Bragdon, 107 F.3d 934, 939, 940 (1st Cir. 1997), aff’d, 524 U.S.

624, 118 S. Ct. 2196 (1998), alterations in original).                  Working

falls well within the phrase “major life activity.”                   For many,

working is necessary for self-sustenance or to support an entire

family. The choice of an occupation often provides the opportunity

for self-expression and for contribution to productive society.

Importantly, most jobs involve some degree of social interaction,

both with    coworkers    and   with   the   public    at   large,    providing

opportunities for collegial collaboration and friendship.                   For

those of us who are able to work and choose to work, our jobs are

an important element of how we define ourselves and how we are

perceived    by   others.       The    inability      to    access    the   many


229 (5th Cir. 1996) (summary calendar); Ellison v. Software
Spectrum, Inc., 85 F.3d 187, 190 (5th Cir. 1996); Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995) (summary
calendar).

     The Supreme Court’s recent observance that “[n]o agency . . .
has been given authority to issue regulations implementing the
generally applicable provisions of the ADA” now casts a shadow of
doubt over the validity and authority of the EEOC’s regulations.
Sutton, 67 U.S.L.W. at 4539. However, because we conclude, based
on the plain text of the ADA, that working is indeed a major life
activity, we need not decide whether the EEOC’s regulations are due
any deference, or whether we are bound by our own precedent to
respect them.


                                      -19-
opportunities afforded by working constitutes exclusion from many

of the significant experiences of life.             Without doubt, then,

working is a major life activity.



                                     3.

     Finally, we consider whether Boyle’s MDS impairment resulted

in a substantial limitation of his major life activity of working.

We conclude that it did not.        At the time Boyle returned to the

office and was confronted by Gallagher, his cancer had gone into

complete    remission   and   his   doctors   had   cleared    him    for   an

unqualified return to work.         This necessarily implies that the

doctors believed that Boyle’s major life activities were largely

unaffected by the physical impairment of MDS.         The district court

observed that the only actual present limitation claimed by Boyle

was his need to return to the hospital for six monthly chemotherapy

treatments.    Boyle insisted to his former employer, and both the

EEOC and Boyle have argued on appeal, that he could follow this

treatment schedule and still maintain his full workload.              We have

no doubt that this is so, especially given the flexibility most

executives have in scheduling professional obligations.              He could

still access his job and all of its accoutrements: salary and

benefits;   personal    and   professional    opportunities;    and    social

interaction with his colleagues. As a result, Boyle did not suffer




                                    -20-
from a substantial limitation necessary to invoke “disability”

status under § 12102(2)(A).



                                      B.

     The second possible way of establishing “disability” is to

prove a record of impairment which substantially limited a major

life activity.    The differences between the present effect of

Boyle’s   impairment   at    the     time    he   left   Gallagher   Co.   (for

§ 12102(2)(A)) and the record of that impairment’s effect (for

§ 12102(2)(B)) are: a pre-diagnosis effect on Boyle’s vision due to

cancer-related   nerve      palsy;    a     thirty-day   hospitalization     to

complete his initial round of treatment, which prevented Boyle from

caring for himself; and isolation from other persons due to Boyle’s

weakened immune system, which affected his ability to work.

     The EEOC relies on its interpretative regulation, 29 C.F.R.

§ 1630.2, for its position that the ADA “protects former cancer

patients from discrimination on the basis of their prior medical

history.”   This broad position obviously cannot be the rule in the

wake of Sutton, which emphasizes both the ADA’s requirement of

individualized inquiry and a focus on the actual effects of the

impairment.   In other words, it is not enough for an ADA plaintiff

to simply show that he has a record of a cancer diagnosis; in order

to establish the existence of a “disability” under § 12102(2)(B),




                                     -21-
there must be a record of an impairment that substantially limits

one or more of the ADA plaintiff’s major life activities.

     The EEOC and Boyle also contend that Boyle had a record of

substantial limitation on major life activities beginning around

the time he was diagnosed with MDS and lasting until he completed

his initial course of treatment and the cancer went into remission.

The district court did not specifically confront this allegation;

it merely asserted that Boyle could not satisfy the five-part test

posed by the court.      See 959 F. Supp. at 409.         This assertion by

the district court does not support summary judgment in favor of

the employer.    Consider, for example, the first question posed by

the district court: “Can you walk, see, hear, speak, breathe, lift,

learn, etc?”     The district court believed that a “yes” answer to

this question would defeat any claim under the ADA.            See id.    But

an affirmative response simply does not preclude the possibility

that a major life activity was substantially affected.                  It is

possible that during his thirty-day stay at the hospital, Boyle

could walk, see, hear, speak, breathe, lift, and learn, and yet his

ability to work might still have been substantially affected.

Boyle’s limited vision might have caused a substantial limitation

of major life activities. His long hospital stay and his isolation

from others, results of the treatment Boyle undertook to treat his

impairment,     may   also   be   considered   as   the    cause   of    such

limitations.     See Sutton, 67 U.S.L.W. at 4540 (suggesting that


                                    -22-
“negative side effects suffered by an individual resulting from the

use of mitigating measures” are an appropriate component of the

individualized      approach   mandated   by   the   ADA).       We    need   not

speculate as to what major life activities may have been affected;

that is an issue ripe for fresh consideration before the district

court.     All we decide is that the district court’s analysis does

not resolve the matter.         On remand, the district court should

follow the example of Bragdon v. Abbott to determine whether the

record of Boyle’s impairment includes a substantial effect on a

major life activity.



                                    C.

     The    final   possible    basis   for    ADA   liability    is    Boyle’s

allegation that Gallagher Co. discriminated against Boyle based on

a perception of disability. The district court resolved this issue

by reasoning as follows:

            Assuming that Gallagher perceived Boyle as ill,
            that is not a perception of disability. The “or
            perceived” language is in the law to protect people
            who have some obvious specific handicap that
            employers might generalize into a disability.
            Boyle did not have a condition -- a defect -- that
            Gallagher, based on erroneous social stereotypes,
            could generalize into an inability to function on
            the job.

959 F. Supp. at 409.     At the summary judgment hearing, the district

court elaborated on this novel view by stating that the application




                                   -23-
of the “regarded as” prong is exemplified by cases involving

“people with one arm” or those who “show up wearing an eye patch.”

     This analysis is off the mark.             The text of the ADA could not

be clearer on this point. The protection for individuals “regarded

as” being disabled is for individuals who are “regarded as” having

“such    an   impairment,”    42     U.S.C.     §   12102(2)(C).         “Such”   an

impairment means the same kind of impairment as would give rise to

protection if it actually existed, that is, one that “substantially

limits    one    or   more   of    the    major     life    activities    of   such

individual,” 42 U.S.C. § 12102(2)(A).               See Sutton, 67 U.S.L.W. at

4541.    One does not have to have “some obvious specific handicap”

in order to fall into             this category.           As the Supreme Court

explained,

              There are two apparent ways in which individuals
              may fall within this statutory definition: (1) a
              covered entity mistakenly believes that a person
              has a physical impairment that substantially limits
              one or more major life activities, or (2) a covered
              entity   mistakenly   believes   that    an   actual,
              nonlimiting impairment substantially limits one or
              more major life activities. In both cases, it is
              necessary   that    a  covered    entity    entertain
              misperceptions   about   the   individual--it    must
              believe either that one has a substantially
              limiting impairment that one does not have or that
              one has a substantially limiting impairment when,
              in fact, the impairment is not so limiting.

Sutton, 67 U.S.L.W. at 4541-42; see also Murphy, 67 U.S.L.W. at

4550-51.




                                         -24-
        Not surprisingly, Gallagher Co. takes a different tack and

relies on the fact that Boyle was offered the position of vice

president of sales as evidence that he was not regarded as being

unable to perform.             Our precedents do suggest that the employer’s

offer of another position in the same class of occupations may

disprove an allegation of discrimination based on perception of

disability.             See, e.g., Bridges v. City of Bossier, 92 F.3d 329,

334-36 (5th Cir. 1996).               Boyle’s claims are distinguishable from

that line of cases; a jury could conclude, based upon the summary

judgment evidence, that Boyle was constructively discharged when

Gallagher Co. reduced his salary by half.               If that is the case, it

makes no difference that Gallagher Co. has a legal fig leaf to hide

behind.        If the offer of the vice president for sales position,

tied to a fifty-percent reduction in salary, was designed to force

Boyle to resign because Gallagher regarded Boyle as disabled and

incapable of performing his job, the presumption that Boyle was not

regarded as disabled dissolves.                 Such a pretextual offer cannot

shield the employer from ADA liability for its discriminatory

actions.

        Based          on   Boyle’s   factual   allegations   about   Gallagher’s

conduct, we conclude that there is a genuine issue of material fact

as to whether Boyle was regarded as disabled, and therefore summary

judgment was inappropriate.




g:\opin\98-20351.opn                       -25-
                                     IV.

        Boyle also appeals the summary judgment entered in favor of

Gallagher Co. on his retaliation claims under the ADA.             The

district court correctly ruled that the filing of a lawsuit cannot

be an “adverse employment action” such as required to trigger the

ADA’s protection against retaliation under 42 U.S.C. § 12203,

because it is not an employment action at all.      See 959 F. Supp. at

410.        We affirm this aspect of the judgment below.



                                     V.

        For the foregoing reasons, the judgment of the district court

is AFFIRMED in part, and VACATED in part, and we REMAND for further

proceedings consistent with this opinion.6




        6
          Because of our disposition on the merits of the case, we
also must vacate the district court’s fee award. We express no
opinion regarding whether fees were properly assessed based on the
district court’s judgment on the merits.

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