                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                            February 27, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                       ____________________

                           No. 03-60686

                         Summary Calendar
                       ____________________


     NANCY WINDLY

                                    Plaintiff - Appellant

          v.

     HIGHTOWER OIL COMPANY INC

                                    Defendant - Appellee


_________________________________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
                      USDC No. 2:02-CV-80-SAA
_________________________________________________________________

Before KING, Chief Judge, and JOLLY and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff Nancy Windly appeals the district court’s summary-

judgment dismissal of her claim that she was discriminated

against in employment in violation of the Americans with

Disabilities Act, 42 U.S.C. § 12112.   For the following reasons,

we affirm.


     *
        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that this opinion should not be published and is not precedent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.
                            I. BACKGROUND

     Windly began working for defendant Hightower Oil Co., Inc.

(“Hightower Oil”) on June 6, 1998, as the manager of Hightower

Oil’s convenience store in Coldwater, Mississippi.    Windly

received positive feedback on her performance in managing the

store, including an encouraging note from Hightower Oil’s

principal, George Hightower, dated August 8, 1998.    The Coldwater

store was regarded as a difficult store to manage--a “hornets’

nest,” the parties call it.

     On August 12, 1998, Windly informed her employer that she

had made an appointment to see a doctor regarding rectal

hemorrhaging.    She also informed her employer that she had

experienced related problems that required colon surgery ten

years earlier.    After the appointment, she told her employer that

she needed to take medical leave from August 17 to September 5.

At some point, George Hightower heard about Windly’s absence, but

he was apparently misinformed that Windly was suffering from a

bleeding ulcer.

     On September 8, only a few days after Windly had returned to

work, George Hightower met with Windly and told her that she was

going to be terminated.    There were no other witnesses to the

conversation, and the two participants have somewhat conflicting

recollections of what was said.    According to Windly’s version,

George Hightower told her that his father had suffered from a



                                  2
bleeding ulcer that would flare up whenever he was under stress

at work.   George Hightower told Windly that her ulcer would flare

up the same way.

     And he said due to the bleeding ulcer that I had that he
     felt it would be in his and my best interest to terminate
     me. . . . And he said that, you know, that he knew that
     he had put me in a hornets’ nest and it was going to be
     [a] problem and then said that he was intending to
     purchase another store in Hernando, and he said due to
     this ulcer, he said maybe when I get that, if I get it
     and open it, that you could start out in a brand new
     store and work in it. I can’t promise you that I would
     hire you for it, but he said maybe later that I could go
     to work up there.

Windly told George Hightower that she did not have a bleeding

ulcer, but she was still terminated.

     In his deposition testimony, George Hightower admitted that

he had at some point mentioned to Windly, in urging her to seek

medical treatment, that his father had nearly died from a

bleeding ulcer.    He did not recall discussing her medical

condition at the September 8 meeting.    According to George

Hightower, Windly’s medical condition had no bearing on her

termination; rather, she was let go because she could not handle

the store manager position, lacked the necessary organizational

skills, and did not respond well to training and instructions.

An internal memo written by George Hightower and dated September

8 states that Windly “will be laid off due to stress related to

the job in managing personnel.”    On September 28, 1998, the state

agency charged with paying unemployment compensation contacted

Hightower Oil regarding the reasons for Windly’s termination and

                                  3
was told that she was no longer needed and was having some health

problems.

     There were no other openings in the Coldwater store when

Windly was terminated, but various positions became available at

later dates.   Hightower Oil has never offered Windly another

position, though she does not allege that she asked for one.

     Windly filed a complaint with the EEOC, which determined

that there was a reasonable basis to believe that Hightower Oil

had discriminated against Windly on the basis of a perceived

disability.    The EEOC issued a right-to-sue letter, and Windly

filed suit against Hightower Oil in the district court.     The

parties consented to proceed before a magistrate judge.

Hightower Oil moved for summary judgment, contending that Windly

had no evidence that she was terminated for being regarded as

disabled.   The magistrate judge granted the motion and dismissed

the case, and Windly now appeals.

                            II. ANALYSIS

A.   Standard of Review

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

novo, applying the same standard as the district court.    Gowesky

v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003).

Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to


                                  4
any material fact and that the moving party is entitled to a

judgment as a matter of law.”   FED. R. CIV. P. 56(c).   We view the

facts in the light most favorable to the non-moving party,

drawing all reasonable inferences in that party’s favor.     See

Gowesky, 321 F.3d at 507.

B.   Windly’s “regarded as” claim

     Windly claims that Hightower Oil terminated her in violation

of the Americans with Disabilities Act (ADA).    See 42 U.S.C.

§ 12112(a) (2000) (prohibiting disability-based job

discrimination).   The ADA defines “disability” as, inter alia, “a

physical or mental impairment that substantially limits one or

more of [a person’s] major life activities.”    42 U.S.C.

§ 12102(2)(A) (2000).   Windly does not claim to suffer from a

disability; on the contrary, she asserts that she is not

disabled.   Her claim is instead that her employer regarded her as

disabled and illegally discriminated against her on the basis of

that perceived disability.   See id. § 12102(2)(C) (defining

“disability” also to include “being regarded as” having a

disability).   A person is “regarded as” disabled if the person:

     (1) has an impairment which is not substantially limiting
     but which the employer perceives as constituting a
     substantially limiting impairment; (2) has an impairment
     which is substantially limiting only because of the
     attitudes of others toward such an impairment; or (3) has
     no impairment at all but is regarded by the employer as
     having a substantially limiting impairment.




                                 5
Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir. 1996).

     The major life activity involved in this case is the

activity of working.    A person is substantially limited (i.e.,

disabled) with respect to the activity of working when that

person is

     significantly restricted in the ability to perform either
     a class of jobs or a broad range of jobs in various
     classes as compared to the average person having
     comparable training, skills and abilities. The inability
     to perform a single, particular job does not constitute
     a substantial limitation in the major life activity of
     working.

29 C.F.R. § 1630.2(j)(3)(i) (2003); see also Sutton v. United Air

Lines, 527 U.S. 471, 491 (1999) (citing regulations and

explaining that the phrase “substantially limits” means, “at a

minimum, that [a person is] unable to work in a broad class of

jobs”).2    In order to succeed on her “regarded as” claim, Windly

must show that her impairment, if it existed as perceived, would

be substantially limiting in the way just described.     See McInnis

v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 281 (5th Cir. 2000).

     In granting the defendant’s motion for summary judgment, the

district court concluded that Windly could not show that George

Hightower, the relevant decisionmaker, regarded her as




     2
          In Sutton, the Supreme Court assumed without deciding
that the regulations defining “substantially limits” were
reasonable interpretations of the statute. 527 U.S. at 492. Our
cases treat the regulations as providing significant guidance.
See, e.g., Gowesky, 321 F.3d at 508; Bridges, 92 F.3d at 332.

                                  6
substantially limited in the life activity of working.3    We agree

with that conclusion.   Viewing the record in the light most

favorable to Windly, and drawing all reasonable inferences in her

favor, a reasonable fact-finder could decide that George

Hightower believed that she had a medical condition (namely,

bleeding ulcers) that could be brought on by job-related stress.

In order to survive summary judgment, however, the record must

contain sufficient evidence from which a reasonable fact-finder

could conclude that George Hightower believed that Windly’s

condition would exclude her from an entire class of jobs or a

broad range of jobs.

     Citing Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 303-04

(4th Cir. 1998), Windly argues that she should be regarded as

disabled for ADA purposes if her employer considered her

incapable of filling supervisory positions because of the level

     3
          The district court employed the McDonnell Douglas
burden-shifting framework familiar from the Title VII context.
Our cases use that framework in ADA cases where the plaintiff
puts forward circumstantial evidence of discrimination. See
McInnis, 207 F.3d at 279. Under that framework, a plaintiff’s
prima facie case of discrimination includes, inter alia, a
showing that the plaintiff is disabled or is regarded as
disabled. Id. The McDonnell Douglas framework is unnecessary,
however, to the extent that the plaintiff relies on direct
evidence of discrimination. Trans World Airlines, Inc. v.
Thurston, 469 U.S. 111, 121 (1985); Brady v. Fort Bend County,
145 F.3d 691, 711-12 (5th Cir. 1998). Windly has direct evidence
of the reasons for her termination, namely George Hightower’s
statements in the September 8 conversation. Nonetheless,
whichever method of proof is involved, a plaintiff is required to
show that he or she is disabled or regarded as such. The
district court’s decision on summary judgment, and our decision
here, turns on whether Windly was regarded as disabled.

                                 7
of stress that they involve.   We do not believe that the record

here reasonably suggests that Windly was regarded as incapable of

filling supervisory positions in general.   Both sides agree that

the Coldwater store was a particularly tough and stressful

assignment.   On Windly’s own version of her conversation with

George Hightower, he stated that she could perhaps fill the store

manager position in a different store.   George Hightower’s

apparent belief that Windly was unable to handle the stresses of

the Coldwater position does not in this case license a reasonable

inference that he perceived her to be unable to fill supervisory

positions more broadly.   See Chandler v. City of Dallas, 2 F.3d

1385, 1393 (5th Cir. 1993) (“An employer’s belief that an

employee is unable to perform one task . . . does not establish

per se that the employer regards the employee as having a

substantial limitation on his ability to work in general.”).     The

summary-judgment record reasonably supports at most an inference

that Windly was regarded as unable to perform a relatively narrow

range of particularly demanding managerial jobs.   That kind of

perceived limitation does not rise to the level of a

“substantially limiting” (i.e., disabling) condition under the

ADA.   See Bridges, 92 F.3d at 334 (holding that disqualification

from an especially traumatic occupation does not constitute a

substantial limitation on the major life activity of working);

see also Ryan v. Grae & Rybicki, P.C., 135 F.3d 867, 872-73 (2d

Cir. 1998) (holding that legal secretary was not regarded as

                                 8
substantially limited in her ability to work when she was told

that “this job is too stressful for you because you have

colitis”; employer’s statement was limited to “this job” and

employer offered a good recommendation to give to future

employers).

     Since Windly failed to demonstrate a genuine issue of fact

concerning whether she was regarded as disabled in the major life

activity of working, the magistrate judge correctly granted

Hightower Oil’s motion for summary judgment.

                         III. CONCLUSION

     For the foregoing reasons, the district court’s judgment is

AFFIRMED.




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