                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                               No. 95-10472
                             Summary Calendar



                            Kenneth E. Smith,

                                              Plaintiff-Appellant,



                                   VERSUS


                 Rockwell International Corporation,

                                              Defendant-Appellee.




          Appeal from the United States District Court
       For the Northern District of Texas Dallas Division
                          (3:93CV00331)
                        December 13, 1995


Before HIGGINBOTHAM, DUHÉ, AND EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

     Kenneth E. Smith appeals the district court’s grant of summary

judgment   to   his    employer,   Rockwell   International   Corporation

(Rockwell).     Smith sought relief under Title VII of the Civil

Rights Act, the Texas Worker’s Compensation Act, and the Americans


     Local Rule 47.5 provides: “The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
with Disabilities Act (ADA) for his medical layoff and Rockwell’s

refusal to reinstate him.                 The district court granted summary

judgment in favor of Rockwell.              We affirm.

                                     BACKGROUND

      After sustaining ankle and back injuries, Smith received

workers’     compensation         benefits       in    March     of   1992.     Shortly

thereafter,     Rockwell       placed     Smith       on   medical    layoff,   because

Smith’s medical restrictions prevented him from performing the

essential duties of his Facilities and Maintenance II position.

Smith then filed a grievance with his labor union.

      In response to Smith’s union grievance, Smith and Rockwell

entered into an agreement governing the conditions under which

Smith might be reinstated.           The agreement gave Rockwell the right

to   send   Smith     to   a   doctor      of    Rockwell’s      choice   for   a   work

evaluation examination.            If this evaluation conflicted with the

evaluation of Smith’s personal doctor, then Rockwell and the union

would choose a doctor to perform an independent evaluation.

      In November of 1992, Smith requested reinstatement into an

open position.        Appellant submitted a report from his personal

physician    stating       that    with    some       accommodations,     Smith     could

perform the position’s functions.                 However, Rockwell’s physician

concluded that it would be dangerous for Smith to perform the job.

As   a result    of    these      conflicting         reports,    a   third   physician

evaluated Smith and determined that he was fit to resume his normal

duties.     Thus, in May of 1994, Rockwell reinstated Smith.

      Smith sued Rockwell, claiming that Rockwell (1) violated Title


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VII by placing him on medical layoff because of his race; (2)

violated Article 8307(c) of the Texas Worker’s Compensation Act by

discharging him in retaliation for his workers’ compensation claim.

(3) violated the ADA when Rockwell refused to reinstate Smith in

his former position due to his disability.

     The district court granted summary judgment in favor of

Rockwell.    This appeal followed.

                                       DISCUSSION

     We review a district court’s grant of summary judgment de

novo.     Summary judgment is appropriate if the record discloses

“that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The pleadings, depositions, admissions, and

answers     to    interrogatories,         together        with     affidavits,    must

demonstrate       that    no   genuine    issue       of   material    fact   remains.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).                    To that end we must

“review the facts drawing all inferences most favorable to the

party opposing the motion.”              Reid v. State Farm Mut. Auto. Ins.

Co., 784 F.2d 577, 578 (5th Cir. 1986).

I.   Retaliatory Discharge Claim

     Smith       argues    that   he    was       discharged   in    retaliation   for

pursuing his workers’ compensation benefits.                   To establish a prima

facie case of discrimination under Article 8307(c) of the Texas

Worker’s Compensation Act, an employee bears the burden of proving

that his workers’ compensation claim was a “determining factor” in




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the discharge.2    Burfield v. Brown, Moore & Flint, Inc., 51 F.3d

583, 590 (5th Cir. 1995).   The employer may then rebut by showing

a legitimate reason for the discharge.    Id.

       Although Appellant created a fact issue as to whether his

workers’ compensation claim played a determinative role in his

discharge, he did not rebut Rockwell’s reason for his discharge.

Rockwell avers that it placed Smith on medical layoff pursuant to

its neutrally applied accommodation policy.     Under the policy, if

permanent medical restrictions prevent an employee from performing

his job duties, Rockwell does not accommodate that employee with

another position.    Smith has not presented any evidence refuting

the existence or neutral application of this company policy.

Therefore, Rockwell is entitled to summary judgment as a matter of

law.

II.    Title VII Claim

       Smith argues that Rockwell placed him on medical layoff

because he is African-American, thereby violating Title VII.     To

establish a violation of Title VII, the plaintiff first must prove

a prima facie case by a preponderance of the evidence; once

established, the prima facie case raises an inference of unlawful

discrimination.   St. Mary’s Honor Center v. Hicks, 113 S. Ct. 2742,

2747 (1993); Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

248, 252-53 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802 (1973).   The burden of production then shifts to the defendant


      Tex. Rev. Civ. Stat. Ann. art. 8307(c) was recodified as
Chapter 451 of the Texas Labor Code on September 1, 1993.


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to     proffer    a     legitimate,      nondiscriminatory         reason     for      the

challenged employment action.                Hicks, 113 S. Ct. at 2747; Burdine,

450 U.S. at 253; McDonnell Douglas, 411 U.S. at 802.                              If the

defendant       meets    its     burden,      the    presumption    raised     by      the

plaintiff’s prima facie case disappears.                  Burdine, 450 U.S. at 255

& n.10. However, the plaintiff is then accorded the opportunity to

demonstrate that the defendant’s articulated rationale was merely

a pretext for discrimination.                     Hicks, 113 S. Ct. at 2748-49;

Burdine, 450 U.S. at 253; McDonnell Douglas, 411 U.S. at 804-05.

       Pursuant to the McDonnell Douglas-Burdine procedural scheme,

Rockwell offered a legitimate reason for placing Smith on medical

layoff:     Smith’s       physicians         had     imposed    permanent      medical

restrictions on his activities that precluded him from performing

the material duties of his position.                   To discredit the employer’s

reason, Smith alleged that he was treated differently than injured

white employees at Rockwell. The evidence, however, indicates that

Smith was not comparably situated to these employees.                               Thus,

because    Appellant       has    not    introduced       any   evidence     to     rebut

Rockwell’s       nondiscriminatory           reason,    Rockwell   is   entitled        to

judgment as a matter of law.

III.    ADA Claim

       Smith also argues that Rockwell violated the ADA when Rockwell

refused    to    reinstate       him    to   his    former   position   due       to   his

disability.      The ADA prohibits discrimination “against a qualified

individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,


                                              5
advancement or discharge of employees, employee compensation, job

training,      and    other    terms,    conditions,      and     privileges   of

employment.”     42 U.S.C. § 12112(a).         As a threshold requirement in

an ADA action, a plaintiff must establish that he has a disability.

de la Torres v. Bolger, 781 F.2d 1134, 1136 (5th Cir. 1986).

      The ADA defines an individual’s “disability” as:

            (A) a physical or mental impairment that substantially
            limits one or more of the major life activities of such
            individual;
            (B) a record of such an impairment; or
            (C) being regarded as having such an impairment.

42 U.S.C. § 12112(a). Our inquiry, therefore, is whether Appellant

has a physical or mental impairment, and whether that impairment

substantially limits one or more of his major life activities.

Rockwell does not dispute that Smith had a physical impairment, so

we turn to the second part of the inquiry.

      Smith argues that his impairment substantially limits the

major   life    activity      of   working.     In    determining    whether   an

impairment      substantially        limits   an     individual’s     employment

potential, we look to “the number and type of jobs from which the

individual was disqualified, the geographic area to which he has

reasonable access, and the individual’s employment qualifications.”

Chandler v. City of Dallas, 2 F.3d 1385, 1392 (5th Cir. 1993),

cert. denied, 114 S. Ct. 1386 (1994).              Appellant failed to present

any   evidence       demonstrating    that    his    impairment    significantly

decreases his ability to obtain satisfactory employment.                       The

physicians who examined Smith restricted only his ability to lift

or do heavy duty work.         Although this restriction prevented Smith


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from   performing   an   essential   function   of   the    Facilities   and

Maintenance II position, “an impairment that affects only a narrow

range of jobs can be regarded either as not reaching a major life

activity or as not substantially limiting one.”            Jasany v. United

States Postal Service, 755 F.2d 1244, 1249 n.3 (6th Cir. 1985).

Therefore, summary judgment was appropriate.

                               CONCLUSION

       For the foregoing reasons, we affirm the district court’s

granting of summary judgment in favor of Rockwell.




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