                                                           [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                                                         U.S. COURT OF APPEALS
                         ________________________          ELEVENTH CIRCUIT
                                                               APRIL 10, 2009
                               No. 08-12773                 THOMAS K. KAHN
                                                                  CLERK
                           Non-Argument Calendar
                         ________________________


                      D. C. Docket No. 07-00339-CV-CB

JAMES L. FIKES,


                                                             Plaintiff-Appellant,

                                    versus

WAL-MART, INC.,

                                                            Defendant-Appellee.



                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                                (April 10, 2009)

Before EDMONDSON, Chief Judge, BIRCH and HULL, Circuit Judges.
PER CURIAM:

       Plaintiff-Appellant James L. Fikes, proceeding pro se, appeals the grant of

summary judgment in favor of his employer, Defendant-Appellee Wal-Mart

Stores, East, LP, dismissing Appellant’s disability discrimination claims under the

Americans With Disabilities Act (“ADA”)1 . No reversible error has been shown;

we affirm.

       Plaintiff asserted two claims under the ADA: that he was denied (at least

initially)2 the position of Asset Protection Associate (“APA”) and subjected to a

hostile work environment, each in violation of the ADA. The district court

concluded that Plaintiff failed to present sufficient evidence to show that he was

disabled within the meaning of the ADA and failed to exhaust administrative



       1
         Congress recently enacted major changes to the ADA. By adoption of the Amendments
Act of 2008, Pub.L. No. 110-325, 122 Stat. 3553 (2008), effective 1 January 2009, Congress has
expressly instructed courts that "[t]he definition of disability in [the ADA] shall be construed in
favor of broad coverage of individuals.” Pub.L. No. 110-325, § 4(a). Plaintiff makes no
argument that the amendments should apply retroactively; and absent Congressional expression
to the contrary, a presumption against retroactive application applies when the new legislation
would “impair rights a party possessed when he acted, increase a party’s liability for past
conduct, or impose new duties with respect to transactions already completed.” Landgraf v. USI
Film Products, 114 S.Ct. 1483, 1505 (1994). So, we look to the ADA as it was in effect at the
time of the alleged discrimination.
       2
          Wal-Mart first offered the APA position in September 2006 to another employee after
interviewing that employee, Plaintiff, and other interested employees. The employee who was
offered the position turned it down. According to Wal-Mart, Plaintiff was their second-choice to
fill the open APA position; but, before they could offer Plaintiff the APA job, a hiring freeze was
instituted. When the hiring freeze was lifted, Plaintiff was offered the APA position; he began
work as an APA in March 2007 and continues in that position during the course of this action.

                                                 2
remedies on his ADA hostile environment claim. We agree.

      About Plaintiff’s disability claim, to establish a prima facie case of disability

discrimination under the ADA, he must show that “(1) he has a disability; (2) he is

a qualified individual; and (3) he was subjected to unlawful discrimination because

of his disability.” Davis v. Florida Power & Light Co., 205 F.3d 1301, 1305 (11 th

Cir. 2000). No dispute exists that Plaintiff was qualified; Wal-Mart maintains that

Plaintiff proffered insufficient evidence to show he has a disability and to show he

was subjected to unlawful discrimination.

      A disability is defined as (1) a physical or mental impairment that

substantially limits one or more major life activities; (2) a record of such an

impairment; or (3) being regarded as so impaired. 42 U.S.C. § 12102. Plaintiff

asserts that he is limited in the major life activities of walking and working.

Plaintiff proffered evidence that he suffered a ten percent impairment of his right

knee and a sixteen percent impairment to his left knee which equated to a 26

percent impairment to the lower extremity or a ten percent impairment to the body

as a whole. While working at Wal-Mart, Plaintiff injured his leg and wears a brace

to stabilize his leg. Plaintiff alleges that he suffers pain when sitting or standing

for “long periods” and also when he bends, kneels, walks, lifts, or climbs

“excessively.”



                                            3
         That Plaintiff suffered some limitation of a major life activity is not enough;

the limitation must be substantial. As the district court noted, in September 2006 --

the time Plaintiff claims he was denied the APA position because of his disability -

- Plaintiff was able to mow his yard, trim his hedges, wash clothes, sweep, wash

dishes, cook, and drive his car (without benefit of a handicap placard). Also at that

time, Plaintiff’s job responsibilities as a Wal-Mart assembler included assembling

bicycles, grills, furniture, swing sets, and displays throughout the store. In

addition, Plaintiff gave new employees tours of the store; and Plaintiff performed

as the store’s unofficial “handyman.” In that capacity, Plaintiff did plumbing,

electrical, welding, and carpentry work. Plaintiff even framed and sheet-rocked an

office for Wal-Mart’s district manager. This broad range of activity evidenced in

the record stands in stark contrast to -- and belies -- Plaintiff’s vague assertions that

he is restricted in the major life activities of working and performing manual tasks.

The district court concluded correctly that the evidence of Plaintiff’s impairment

was insufficient to show he was disabled for purposes of establishing a prima facie

case.3


         3
         Plaintiff claimed also that he was regarded by Wal-Mart as having a disability. But
Plaintiff failed to proffer evidence to show that Wal-Mart perceived that Plaintiff suffered from
an impairment that substantially limited a major life activity. See Hillburn v. Murata Electronics
North America, Inc., 181 F.3d 1220, 1230 (11th Cir. 1999) (“As with actual disabilities, a
perceived impairment must be believed to substantially limit a major life activity of the
individual.”).

                                                4
       About Plaintiff’s hostile environment claim, no substantive argument is

advanced to support the claim that he exhausted his administrative remedies.

Plaintiff’s EEOC charge set out these sentences:

              I am an individual with a disability. I believe [Wal-Mart]
              failed to select me for a position in the loss
              prevention/Asset Protection department in violation of
              Title I of the Americans with Disabilities Act.

Because Plaintiff failed to exhaust his administrative remedies on his hostile work

environment claim, summary judgment was due to be granted on this claim. See

Alexander v. Fulton Co., Georgia, 207 F.3d 1303, 1332 (11th Cir. 2000) (“No

action alleging a violation of [the ADA] may be brought unless the alleged

discrimination has been made the subject of a timely-filed EEOC charge.”).4

       AFFIRMED.




       4
       We express no opinion on whether a hostile work environment claim is cognizable under
the ADA.

                                             5
