                           UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT

                                       _________________

                                          No. 99-40156
                                        Summary Calendar
                                       _________________

               BEN DAVIS SIMMONS,

                                               Plaintiff-Appellant,

               versus

               AEP, INC.,

                                               Defendant-Appellee.


                           Appeal from the United States District Court
                                for the Eastern District of Texas
                                         (4:97-CV-265)
                                         March 15, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

       Ben Davis Simmons appeals from the district court’s denial of his Rule 59(e) motion after the

court had granted summary judgment on his Americans with Disabilities Act (“ADA”) claim against

AEP, Inc. (“AEP”). We affirm.

       In 1986, Simmons began working for AEP as a production machine operator. A few years
later, he became a forklift operator. In 1995, Simmons herniated a disk in his lower back, an injury

that required surgery. After the surgery, Simmons’s doctor imposed restrictions on his work,

including that Simmons not lift more than 30 pounds or work more than an eight-hour day. AEP

accommodated Simmons, placing him on janitorial and/or painting duties that comported with his

medical restrictions. However, Simmons incurred another injury, which although not severe enough

for the doctor to further restrict his work activities, made Simmons allegedly unable to perform these



   *
       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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
light duties. AEP then placed Simmons in a position as a “tree cutter.” Simmons then allegedly

developed “carpal tunnel syndrome,” making him unable to perform this work.

       Simmons then received a letter from AEP, which informed him that the company did not

provide full-time light duty opportunities and that the company “currently [had] no full time job

assignments open which will meet [his] requirements.” Simmons complained to the EEOC, which

issued a right to sue letter. On July 9, 1997, Simmons filed suit, pro se, against AEP, alleging that

he was fired in violation of the ADA. When Simmons moved for the appointment of counsel, the

district court denied the motion based on a magistrate’s determination that Simmons’s “chance of

success on the merits is not great.”

       Simmons vigorously pursued his case pro se before he retained counsel on August 12, 1998.

Based on Simmons’s obtaining counsel, the district court granted a motion to extend the docket

control order and allowed Simmons to amend his complaint before September 15, 1998, provided

that he did not “allege any new causes of action.” Simmons, through counsel, then amended his

complaint. The district court, after reviewing both parties’ motions for summary




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judgment, granted



AEP’s motion because Simmons had not produced evidence to prove that he was “disabled” under

the ADA.

        On appeal, Simmons does not challenge the district court’s determination in its grant of

summary judgment that he was not “disabled” as a matter of law because he was not “substantially

limit[ed in] one or more of the major life activities.” 42 U.S.C. § 12102(2)(A); see also Robinson

v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996). Rather, he claims that the district

court “erred and denied [him] due process” by not allowing his attorney to amend his claim and prove

that AEP “regarded him” as “having such an impairment.” 42 U.S.C. § 12102(2)(C); see also EEOC

v. R.J. Gallagher Co., 181 F.3d 645, 656 (5th Cir. 1999).

        Simmons made this claim before the district court as part of a “motion for new trial.” The

district court properly construed the motion as a FED. R. CIV. P. 59(e) motion to alter or amend

judgment,1 and denied it. We review the district court’s denial of this motion for abuse of discretion,

and the decision needs “only [to] be reasonable to be upheld.” Weber v. Roadway Express, Inc., 199

F.3d 270, 272 (5th Cir. 2000) (“the trial court’s discretion in such matters is considerable”).

        Simmons first argues that the district court’s docket control order denied him due process by

not allowing his attorney to add the “regarded as” claim to his complaint. We disagree. Contrary

to Simmons’s assertion, the district court’s order merely prevented Simmons and his attorney from

assert ing “new causes of action.” Amending the complaint to include an allegation that he was

“disabled” as defined by the ADA because he was “regarded as having a disability” by AEP would

not have asserted a “new cause of action.” Rather, it would have merely given notice that Simmons’s

ADA claim was supported by more than one prong of the “disability” definition. See Deas v. River

  1
       While before the district court and on appeal Simmons characterizes his motion as a “motion
for new trial,” “[a]s no trial was held in the district court, it cannot logically be called a motion for
new trial.” St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir. 1997).
Accordingly, “we shall treat [Simmons’s] motion as a Rule 59(e) motion to alter or amend a
judgment.” Id.

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West, L.P., 152 F.3d 471, 475 n.6 (5th Cir. 1998) (“The ADA defines ‘disability’ in the alternative.”).

The district court, therefore, did not forbid Simmons’s counsel from claiming that AEP “regarded”

Simmons as being disabled. Rather, the record reflects that Simmons, while pro se and when

represented by an attorney, failed to allege that AEP “regarded” Simmons as being disabled even

though permitted to make such an allegation. Failing to re-open the proceeding to allow Simmons

to amend his petition again was not an abuse of discretion.

        Simmons’s assertion that he actually pled “regarded as” discrimination is similarly unavailing.

Simmons’s second amended complaint, prepared by his attorney, alleged that:

        4. Plaintiff is a “Handicapped Person” defined under 29 U.S.C. 794; as a person
        having one or more Major Life Functions, which are effected by medical conditions,
        and has a history of same, is a U.S. citizen, and is a resident of Gainesville, Texas.

        5. Plaintiff’s disability is: a severe “Orthopedic Back Injury” disorder, with chronic
        pain, which substantially limits plaintiff in activities of walking and lifting or carrying
        not more than 30 pounds.

Even were we to read Simmons’s complaint liberally, which we need not do because it was prepared

with the assistance of an attorney, the sole allegation made is that Simmons was act ually disabled

because of a chronic back disorder.2 Nothing within the complaint could possibly have alerted AEP,

or the district court, of Simmons’s allegation that AEP regarded him as being disabled.

        Finally, the evidence Simmons presented on “regarded to” discrimination was insufficient as

a matter of law. To prove that AEP “regarded” him as being disabled for ADA purposes, Simmons

would have to prove far more than AEP believed he had an “impairment.” Simmons would have to

prove that AEP regarded him as having 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.” R.J. Gallagher, 181 F.3d at 656; see also Deas, 152 F.3d at 476 (“The more difficult

question is whether [plaintiff] produced summary judgment evidence sufficient for a reasonable trier

of fact to find that [defendant] regarded [plaintiff’s impairment] as substantially limiting a major life

   2
       As t he dist rict court noted, “Plaintiff’s counsel did file Plaintiff’s Amended Complainton
September 15, 1998; however, nowhere in the complaint does Plaintiff allege that he was disabled
because Defendant regarded him as such.”

                                                     -4-
activity.”). To prove that AEP regarded him to be substantially limited in the major life activity of

working, Simmons would have to prove that AEP regarded Simmons to be “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 activities.” Deas, 152 F.3d at 481; see

also Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 860 (5th Cir. 1999) (“The inability to

perform one specific or a narrow range of jobs does not constitute substantial limitation on one’s

ability to work.”).

        Simmons points to his “job appraisal” as evidence that AEP “regarded him” as having a

disability. In that appraisal, an AEP supervisor noted that “Ben is recovering from a [sic] accident

that has required some time loss on his job. He has returned to work and [sic] presently working to

be a viable employee again.” Simmons also points to other affidavits to the effect that AEP knew that

his injuries produced an “impairment.” This evidence, however, proves that while AEP (as shown

by its accommodations after Simmons’s injuries) felt Simmons was able to perform a broad range of

jobs, it believed he was unable to perform one specific job: forklift operator. Thus, the evidence is

insufficient to prove that AEP “regarded him” as being “substantially limited in his ability to work.”

See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121 (5th Cir. 1998) (“There is undisputed

evidence that shows that [the defendant] attempted to place [the plaintiff] in positions for which

[defendant] did not deem her disqualified due to her back condition. Such evidence could only permit

a reasonable jury to conclude that [defendant] believed [plaintiff] to be qualified for other positions.”).



        Accordingly, the district court did not abuse its discretion in denying Simmons’s Rule 59(e)

motion. We AFFIRM.




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