                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE FIFTH CIRCUIT



                                No. 97-10648



JAMES H NEWBERRY
                                                Plaintiff-Appellant

v.

EAST TEXAS STATE UNIVERSITY;
WILLIAM WADLEY; ROBERT E HOUSTON
                                                Defendants-Appellees



           Appeal from the United States District Court
                for the Northern District of Texas


                              November 18, 1998


Before GARWOOD, KING, and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

      In this disabilities case, plaintiff James H. Newberry appeals

the   district    court’s     refusal   to   instruct   the     jury   that    a

“perception of disability” or “record of disability” would qualify

as a disability under the Americans with Disabilities Act.              Under

the facts of this case, no reasonable jury could have found that

there   existed    a   “perception      of   disability”   or    “record      of

disability” without first finding that Newberry had a “disability.”

We thus find that he was not entitled to an instruction concerning

“perception of disability” or “record of disability.” We also

affirm the trial court’s dismissal of various other claims.
                                          I

     James H. Newberry, a tenured professor of photography at East

Texas State University, was fired in 1994. He filed suit, alleging

that he suffered a psychiatric disability. Newberry claimed that

Dr. William Wadley and Dr. Robert E. Houston, superiors of his at

ETSU, conspired to violate his civil rights and that ETSU dismissed

him illegally on account of his disability.

     Newberry’s      association     with       ETSU,       which    has    since   moved

underneath the umbrella of Texas A&M University and is called Texas

A&M--Commerce,      began    in   1979,       when    he    started       working   as   a

professor of photography there.               The employment relationship was

troubled    from     early    on,    as       Newberry’s          faculty    colleagues

recommended that he be denied tenure.                  Nonetheless, ETSU granted

Newberry tenure in 1984.

     Newberry’s      initial      appointment         was     in    the Department of

Journalism and Graphic Arts.         Tension, however, developed between

Newberry and Dr. Jack Hillwig, appointed as department chair in

August 1989.       Newberry, according to Hillwig, worked fewer hours

than his    colleagues,      preferred        to     work    only    on    Tuesdays   and

Thursdays, did not work in the morning, and kept no office hours.

Hillwig also testified that Newberry threatened and harassed him.

Hillwig subsequently resigned, out of fear, according to ETSU, that

Newberry would undermine Hillwig’s own chance of winning tenure.

At that time, Houston, the Dean of the College of Arts and

Sciences,   found     Newberry’s     conduct          to     be     noncollegial,     and

suggested to Newberry that he obtain counseling.


                                          2
     In 1992, a group that included Newberry recommended that the

photography program be moved to the Department of Art, and ETSU

acceded to the request.         The Department was headed by Dr. Wadley,

and Houston was Wadley’s superior.                Soon enough, however, Newberry

wished he was back in the Department of Journalism and Graphic

Arts.     Witnesses testified that he threatened to sue Wadley,

refused     to   attend     8   a.m.   faculty         meetings,    and   resisted

participating in graduate reviews of art students. Several faculty

members, apparently concerned that Newberry’s behavior would cause

Wadley to leave, approached Houston.                On December 1, 1993, Houston

sent a memorandum to Newberry warning him that if his behavior

towards his colleagues did not become more professional, he might

be dismissed.

     Newberry and Houston met several times in the next two weeks,

but the substance of those meetings is unclear.                  Houston also met

with Newberry’s campus counselor Randy Bodenhemer, who later denied

that he told Houston that Newberry was disabled.                   On February 15,

1994, Newberry drafted a proposal under which ETSU would grant him

a year’s paid sick leave, during which he would study art in New

York.     There is some dispute as to whether Newberry made this

proposal spontaneously or whether Houston had earlier suggested the

year off.    In any event, Houston refused to grant the request in

the absence      of   a   letter   from       a   psychiatrist   indicating   that

Newberry required accommodation.

     On May 23, 1994, Wadley recommended Newberry’s dismissal, and

Newberry was dismissed two days later, though he would continue to


                                          3
receive salary and benefits for a year.                Newberry duly filed an

appeal according to ETSU procedures. A faculty committee voted, 6-

5, that Newberry’s tenure should not be revoked, but recommended

that Newberry not be returned to the Department of Art.                 This vote,

however, was merely advisory, and ETSU President Jerry Morris

upheld Newberry’s dismissal. ETSU’s Board of Regents in turn upheld

this decision.

      Newberry      filed   suit   against     ETSU,   Wadley,    and    Houston,

alleging numerous claims.          The most important of these claims for

purposes of this appeal are that ETSU violated the Americans with

Disabilities Act, 42 U.S.C. §§ 12111-12213, and that the defendants

conspired to violate his civil rights in violation of 42 U.S.C. §§

1985 and 1986.       Newberry filed additional federal claims under 42

U.S.C. § 1983 and the Rehabilitation Act, 29 U.S.C. §§ 701-797b.

State claims included intentional infliction of emotional distress,

civil conspiracy, and a claim under the Texas Labor Code.

      The trial lasted six days.             At trial, a psychiatrist and a

licensed professional counselor who had treated Newberry between

1992 and     1994    both   testified.       The   counselor     testified      that

Newberry     suffered   from    obsessive      compulsive    traits,      and   the

psychiatrist specifically diagnosed him as suffering from obsessive

compulsive personality disorder. Testimony indicated that Newberry

had   also    seen    another      psychiatrist     for     treatment.          That

psychiatrist and Newberry’s regular physician made diagnoses of

obsessive compulsive disorder as well.




                                         4
      According to Newberry’s testifying witnesses, the obsessive

compulsive    disorder      had   numerous    effects     on    Newberry’s     basic

physical and mental functions at work and at home.                           Newberry

himself testified that he had difficulty cleaning himself, waking

up, sleeping, scheduling his daily routine, and controlling his

bowel function.      The disorder, he testified, also interfered with

his     relations    with     others    by   instilling        in   him    excessive

perfectionism, rigidly ethical behavior, and an insistence on

addressing all details of his interpersonal relationships.

      As early as late 1992, according to Newberry, Wadley observed

physical symptoms of depression and suggested that Newberry obtain

counseling.     In April 1993, Houston advised Newberry that he

believed Newberry suffered from a serious psychological problem and

should seek psychiatric or other mental health care.                      In December

1993,    Houston,     aware     that    Newberry    was    seeing     a     licensed

professional counselor employed by ETSU, met with the counselor and

allegedly indicated that he believed Newberry was suffering from

psychological       problems,     and   suggested    to    the      counselor     the

possibility of Newberry’s taking a leave of absence.                 At around the

same time, Houston discussed Newberry with other faculty members,

who allegedly characterized Newberry with phrases like “paranoid,”

“nuts,” “crazy,” and “having mental difficulties.” Houston also

discussed Newberry with ETSU’s inside counsel and its president.

Finally, between February and April, 1994, Houston was authorized

to visit with Newberry’s psychiatrist to obtain a diagnosis of a




                                         5
mental disorder.           Although the psychiatrist contacted him, Houston

decided not to visit with the psychiatrist.

           No    witness    testified    that    he    perceived    Newberry       to    be

disabled.         Dr. Alan Harris, Newberry’s psychiatric expert; Randy

Bodenhemer, his psychologist; James Cornehls, Newberry’s economic

expert; two former students of Newberry’s; and various members of

the faculty and administration all testified that they did not

regard him as disabled.

       After Newberry rested his case, the defendants moved for

judgment pursuant to Federal Rule of Civil Procedure 50(a).                             The

court dismissed the §§ 1985 and 1986 claims on the basis that

Wadley and Houston were protected by qualified immunity.                                In

addition, it dismissed the § 1983 claim, on the basis that ETSU is

not    a   “person”      subject    to   suit    under    that    section,       and    the

emotional distress claim, in the absence of evidence of outrageous

conduct.         The court refused to dismiss the ADA claim.

       While the court did not specifically comment on the remaining

claims,         the   Rehabilitation     Act    and    Texas     Labor    Code    claims

essentially overlap with the ADA claim, and Newberry’s proposed

jury    instructions        did    not   mention      these   claims     specifically.

Newberry’s proposed jury instructions did specifically mention the

Texas civil conspiracy claim.                   The court’s jury instructions

omitted this claim, perhaps because the court had dismissed the

similar § 1985 claim.

       At the charge conference, Newberry did not object to the

omission of the conspiracy claim.                He did, however, specifically


                                            6
object to the judge’s truncation of the definition of “disability”

that Newberry had offered with respect to the first element of the

ADA claim.      Under the plaintiff’s proposal, Newberry would satisfy

this element by showing “that he had a disability or perceived

disability or record of disability.” The court, however, refused to

include    the     “perceived    disability         or    record   of     disability”

language. At the charge conference, the court overruled Newberry’s

objection.

       The jury found that Newberry was not a qualified individual

with a disability under the ADA, and the court entered judgment on

the verdict.       Newberry appeals.          He specifically challenges only

the district court’s charge as to “disability” and the dismissal of

the conspiracy claims.

                                         II

       It is uncontested that the definition of “disability” that

appellant requested tracked the statutory language.                     See 42 U.S.C.

§    12102(2)    (“Disability    means       ...    (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.”).       In

addition, at least some evidence indicated that administration

officials and other faculty members believed that Newberry had

mental problems and suggested counseling.                       A reasonable jury

therefore might have concluded that a perception existed that

Newberry suffered from such conditions, which we assume, arguendo

only, could be found to constitute a perception of disability.


                                         7
Under the facts of this case, however, no reasonable jury could

have concluded both that Newberry did not suffer from a disability

and that he was dismissed because of a perception that he was

disabled.

      Newberry         was    required    to       show   that      his    disability     (or

perception or record thereof) was a motivating factor in the

decision to dismiss him. See, e.g., Hypes v. First Commerce Corp.,

134 F.3d 721, 726 (5th Cir. 1998).                   Had he been able to show that

he   in   fact    suffered       a    substantial         impairment       of    major   life

functions,       then    he    might     have      been    able     to    show    that   this

impairment motivated his dismissal and that ETSU refused to allow

a reasonable accommodation.              Now that Newberry must rely only on a

perception       of     disability,       however,        he    must      show   that    this

perception was a motivating factor in his dismissal.

      Newberry cannot show this.                   All the evidence indicates that

the university dismissed him because of his work performance and

lack of collegiality.                In the absence of any evidence that the

university       was    concerned       specifically           about     Newberry’s      being

mentally ill--which            would     be    the   case      if   they    believed,     for

example, that mentally ill people are inherently dangerous, and

they fired him to avoid the danger--then the perception of him as

mentally ill could not have been a motivating factor in his

dismissal.

      Section 12102(2)(C) is concerned not with symptoms, but with

categorization. That is, where an employee engages in conduct that

is legitimately a basis for dismissal, and the employer believes


                                               8
that the employee’s conduct is symptomatic of disability,           the

employer may fire the employee on the basis of the conduct itself,

as long as the collateral assessment of disability plays no role in

the decision to dismiss.    An employee dismissed for unprofessional

behavior might seek refuge in § 12102(2)(A).     But an employer need

not provide reasonable accommodation to an employee who does not

suffer from a substantially limiting impairment merely because the

employer thinks the employee has such an impairment.

      The regulations and the EEOC’s “Interpretive Guidance on Title

I of the Americans with Disabilities Act” state:

      (l) Is regarded as having such an impairment means:
           (1)    Has a physical or mental impairment that does not
                  substantially limit major life activities but is
                  treated by a covered entity as constituting such
                  limitation;
           (2)    Has a physical or mental impairment that
                  substantially limits major life activities only as
                  a result of the attitudes of others toward such
                  impairment; or
           (3)    Has none of the impairments defined [above] but is
                  treated by a covered entity as having a
                  substantially limiting impairment.

29 C.F.R. § 1630.2(l).

      Subsection (1) is inapposite. It protects employees from

employers who believe a minor impairment to be more serious than it

is.      For example, if Newberry had a mild case of obsessive

compulsive disorder that did not interfere with his work, but ETSU

unnecessarily worried that the disorder would prevent him from

working successfully, this subsection would apply.       In this case,

the issue urged by appellant is not whether ETSU exaggerated the

effect    of   Newberry’s   impairment,   but   rather   whether   ETSU

misattributed Newberry’s poor work performance to a disability.

                                   9
     Subsection (2) is also irrelevant.             There is no evidence that

Newberry’s    obsessive       compulsiveness       caused     difficulties        only

because of others’ attitudes about the disorder.                       Newberry’s

dismissal came about not because of others’ attitudes about the

disorder,    but    because    his    behavior     interfered      with     his   job

performance, and perhaps because the behavior displeased others.

     Subsection      (3)   might     appear   to   apply     literally      but   the

Guidelines clearly explain its purpose with the following example:

“This situation could occur, for example, if an employer discharged

an employee in response to a rumor that the employee is infected

with Human Immunodeficiency Virus (HIV).             Even though the rumor is

totally unfounded and the individual has no impairment at all, the

individual is considered an individual with a disability ....” 29

C.F.R. pt. 1630 app.       Here, Newberry was dismissed not because of

rumors that    he    was   obsessive     compulsive,        but   because    of   his

conduct.

     We must uphold a jury verdict if “based upon the record . . .

the challenged instruction could not have affected the outcome of

the case.” Bender v. Brumley, 1 F.3d 271, 276-77 (5th Cir. 1993)

(internal quotation marks omitted); see also Russell v. Plano Bank

& Trust, 130 F.3d 715, 719 (5th Cir. 1997).                  A judgment will be

reversed based on a faulty jury charge only where “the charge as a

whole leaves us with substantial and ineradicable doubt the jury

has been properly guided in its deliberations.” Hall v. State Farm

Fire & Cas. Co., 937 F.2d 210, 214 (5th Cir. 1991) (internal

quotation marks omitted).          Because under the facts of this case,


                                        10
there are no circumstances in which the change in the jury charge

could have affected the verdict, no such doubt exists.




                               III

     The evidence furnishes no support for Newberry’s § 1985(3)

claim that he was dismissed because of animus directed against him

on account of his alleged disability.1 In Burns-Toole v. Byrne, 11

F.3d 1270 (5th Cir. 1994), we refused to consider a claim that §

1985(3) extends to religious discrimination.   We acknowledged that

the scope of § 1985(3) was an “interesting” question.    Id. at 1275

n.25.2 Nonetheless, we held that § 1985(3) could not be applied in

the absence of evidence of “some class-based animus.” Id. at 1276.

We noted: “[The plaintiff] contends that she was discriminated

against because she is a Seventh Day Adventist.    She has failed,

however, to present any evidence in support of the proposition that


     1
      Given this finding, we need not address whether the claims
were barred under the intra-corporate conspiracy doctrine or the
approach taken in Great American Fed. S&L Ass’n v. Novotny, 99
S.Ct. 2345 (1979).
      2
       In Deubert v. Gulf Fed. Sav. Bank, 820 F.2d 754 (5th Cir.
1987), we held that to state a claim under § 1985(3), plaintiffs
must allege that they are victims of a race-based conspiracy. This
holding was clouded by the Supreme Court’s statement that “some
racial or perhaps otherwise class-based, invidiously discriminatory
animus” is a prerequisite to a § 1985(3) action. Griffin v.
Breckenridge, 403 U.S. 88, 102 (1971). The Court, however, has
never held that nonracial animus is sufficient. See United Bhd. of
Carpenters v. Scott, 463 U.S. 825 (1983) (refusing to extend §
1985(3) to commercial or economic conspiracies); Bray v. Alexandria
Women’s Health Clinic, 506 U.S. 263 (1993) (refusing to extend §
1985(3) to conspiracies against women seeking abortions). Thus,
Deubert remains the law in this circuit.

                                11
the defendants discriminate against Seventh Day Adventists as a

class.” Id.

     Even if Newberry has presented some evidence that he was

discriminated    against   because   of   his   mental   illness,    he   has

presented no evidence that ETSU discriminated against the mentally

ill or disabled as a class.      Therefore, Newberry cannot maintain

his §§ 1985 and 1986 claims.3

                                     IV

     Newberry has not contested the dismissal of his § 1983 claim

or of his emotional distress claim, and they are waived.            See Fed.

R. App. P. 28(a).    He failed to object to the jury instruction that

omitted the civil conspiracy claim under Texas law, and it is also

waived.     See Latuso v. Uniroyal, Inc., 783 F.2d 1241, 1242 (5th

Cir. 1986); see also Fed. R. Civ. P. 49(a).          To the extent that

Newberry’s Rehabilitation Act claim does not overlap his ADA claim,

that claim is also defeated, because Newberry has offered no

evidence that he was adversely treated solely because of his

handicap.     See Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th

Cir. 1993).    Finally, the Texas Labor Code claim overlaps entirely

with the ADA claim.    See Tex. Lab. Code § 21.001(3) (Vernon 1996).



                                     V

     For the above reasons, we AFFIRM the judgment.


     3
      If the § 1985 claim fails, so must the § 1986 claim. See 42
U.S.C. § 1986 (“Every person who, having knowledge that any of the
wrongs conspired to be done, and mentioned in section 1985 of this
title, are about to be committed ... shall be liable ....”).

                                     12
AFFIRMED.




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