                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                       March 21, 2005

                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                No. 04-41056
                              Summary Calendar



                                  LARRY BENNETT,

                                   Plaintiff-Counter Defendant-Appellant,

                                      versus

                         CALABRIAN CHEMICALS CORP.,

                                     Defendant-Counter Claimant-Appellee.



              Appeal from the United States District Court
          for the Eastern District of Texas, Beaumont Division
                          USDC No. 1:03-CV-238


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

             Larry Bennett (“Bennett”) appeals the district court’s

grant of summary judgment for Calabrian Corporation (“Calabrian”)

on Bennett’s Americans With Disabilities Act (“ADA”) disability

discrimination claim. The district court ruled for Calabrian based

on   its    legal    conclusion    that   Bennett   failed   to    proffer      any

competent evidence to establish a prima facie case that there was

a “record” of impairment or that Bennett was “regarded as” being

disabled.     See Bennett v. Calabrian Chemicals Corp., 324 F. Supp.


      *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
2d 815 (E.D.Tex. 2004).          Bennett argues that there is competent

evidence to support both of these conclusions.                 The following

discussion can add little to the district court’s careful opinion.

           We review a summary judgment de novo and are bound by the

same standards as those employed by the district court. See Chaplin

v. NationsCredit Corp., 307 F.3d 368, 371 (5th Cir. 2002). Namely,

summary    judgment    is      appropriate   only   where     the    pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, when viewed in the light most

favorable to the non-movant, show that there is no genuine issue as

to any material fact.          TIG Ins. Co. v. Sedgwick James, 276 F.3d

754, 759 (5th Cir. 2002).

           The record does not support the conclusion that Bennett

has a record of a “physical or mental impairment that substantially

limits one or more of [Bennett’s] major life activities.”                     42

U.S.C. 12102(2).       The fact that Bennett was temporarily off work

for a medical condition and surgery does not mean that he was

disabled under the ADA.          See Pryor v. Trane Co., 138 F.3d 1024,

1026    (5th    Cir.   1998)     (stating    that   temporary,      non-chronic

impairments of short duration, with little or no longer term or

permanent impact, are usually not disabilities).

           Moreover, the fact that Calabrian previously granted

Bennett’s request for twenty-six weeks of short term disability

leave   under    Calabrian’s     self-funded    plan   does   not    by   itself

establish that Calabrian “regarded” Bennett as disabled.                    See,

                                       2
e.g., Linser v. State of Ohio, Dep't of Mental Health, 234 F.3d

1268, 2000 WL 1529809, *4 (6th Cir. 2000).                The legal definition of

a disability under the ADA is different from the eligibility

criterion for Calabrian’s short term disability plan (“not able to

perform any work for pay or profit”).

             Finally, Bennett fails in arguing that the letter to him

from Charles Cogliandro, President of Calabrian, is competent

evidence     to    demonstrate   that         Calabrian    regarded   Bennett    as

disabled.1        Cogliandro testified that he developed a suspicion

Bennett was not in fact unable to work, and when Bennett attempted

to return to work, Cogliandro regarded Bennett as unworthy to

return.    This letter tends to show that Cogliandro was disturbed

that Bennett had been on medical leave for a condition that did not

prevent him from working at the plant.                  The letter, standing by

itself, does not establish a factual basis for the conclusion that

Calabrian regarded Bennett as having an impairment substantially

limiting a major life activity.           At most, it shows that Cogliandro

believed   that     Bennett   had   the       medical     condition   of   arterial

occlusive disease.




     1
             Cogliandro’s letter states, in part:

     [S]ince Dr. Foley had determined that Mr. Bennett was fully disabled
     due to his condition (arterial occlusive disease), that a release
     from Dr. Foley must state that he no longer has the condition in
     order for Mr. Bennett to return to work.

     To date, Mr. Bennett has failed to produce a release from Dr. Foley
     with the requested information. Hence, he cannot return to work.

                                          3
            Accordingly,   the   judgment   of   the   district   court   is

AFFIRMED.




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