                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                          F I L E D
                                                   In the                                   May 16, 2005
                          United States Court of Appeals                              Charles R. Fulbruge III
                                        for the Fifth Circuit                                 Clerk
                                             _______________

                                               m 04-30958
                                             Summary Calendar
                                             _______________




                                         LEVY J. COLLINS, JR.,

                                                                Plaintiff-Appellant,

                                                  VERSUS

                                 SAIA MOTOR FREIGHT LINES, INC.,

                                                                Defendant-Appellee.


                                   _________________________

                              Appeal from the United States District Court
                                 for the Western District of Louisiana
                                     m 6:03-CV-783-CMH-CMH
                                    m 6:03-CV-1552-TLM-CMH
                                ______________________________



Before DAVIS, SMITH, and                                   Levy Collins brought discrimination claims
DENNIS, Circuit Judges.                                 against his former employer, Saia Motor
                                                        Freight Lines, Inc. (“Saia”), alleging, inter
JERRY E. SMITH, Circuit Judge:*                         alia, claims under the Age Discrimination in
                                                        Employment Act (“ADEA”), the Americans
                                                        with Disabilities Act (“ADA”) , and title VII of
                                                        the Civil Rights Act of 1964. Finding no
   *
     Pursuant to 5TH CIR. R. 47.5, the court has        error, we affirm.
determined that this opinion should not be pub-
lished and is not precedent except under the limited                           I.
circumstances set forth in 5TH CIR. R. 47.5.4.
   Collins was a “city driver” for Saia, operat-           lifting of medium work level of 50 pounds
ing a large truck, delivering and picking up               occasionally.” After reviewing Gidman’s
freight from customers. According to the job               report, Collins’s supervisor informed him that
description as promulgated by Saia, Collins’s              he could not return to work because Gidman
position required him to load and unload                   had imposed a 50-pound lifting limit, and the
trailers weighing as much as 45,000 pounds                 job required that he be able to lift 100 pounds
and to be able regularly to lift, without assis-           regularly.
tance, (a) up to 100 pounds to waist height,
(b) up to 75 pounds to shoulder height, and (c)                Because Collins’s absence continued be-
up to 50 pounds overhead. Collins was bound                yond one year, Saia terminated him on March
by Department of Transportation (“DOT”) and                15, 2002, pursuant to its Separability Policy.2
Federal Motor Carrier Safety Act regulations.              Collins filed a discrimination action, alleging
                                                           that he was illegally terminated on the basis of
   On March 13, 2001, Collins was involved                 race, age, and perceived disability.3 The dis-
in a non-employment related automobile                     trict court granted summary judgment to Saia.
accident that left him unable to perform his
duties as a city driver. He was granted Family                                  II.
Medical Leave Act leave and disability leave                  We review a summary judgment de novo
that maxed out on June 12, 2001. Saia contin-              and are bound by the same standards as was
ued his leave.                                             the district court. Chaplin v. NationsCredit
                                                           Corp., 307 F.3d 368, 371 (5th Cir. 2002).
   On October 22, 2002, Collins’s treating                 Summary judgment is appropriate only where
neurosurgeon, Dr. Appley, released him to                  “the pleadings, depositions, answers to inter-
return to work without restriction. Saia then              rogatories, and admissions on file, together
sent Collins to its company physician, Dr.
Marsh, for his DOT physical, which Saia is
required to give to all employees who attempt                 2
to return to work after having been injured.1                   Saia’s Separability Policy provides that “[u]n-
                                                           less otherwise required by law, employees who are
Marsh referred Collins to an orthopedist, Dr.
                                                           unable to return to work within one (1) year of the
Gidman, for a second opinion.                              commencement of a period of absence will be
                                                           terminated. Intermittent returns to work for peri-
   After examination, Gidman opined that                   ods of less than sixty days will not be considered a
Collins was physically able to return as a truck           ‘return to work’ and will not interrupt the running
driver, although Gidman saw problems with                  of the 1-year period.”
the fact that heavy manual labor was involved.
                                                              3
He suggested that “if possible, [Collins] should                Collins failed to brief his race discrimination
be accommodated at work with maximum                       claim to the district court. Although that district
                                                           court discussed the claim “in the interest of com-
                                                           pleteness” in its order granting summary judgment,
                                                           we decline to consider it here, because we do not
   1
      Under 49 CFR § 391.45, that all DOT-certi-           consider evidence or arguments that were not pre-
fied drivers must be medically examined and cer-           sented to the district court. See Nissho-Iwai Am.
tified in accordance with § 391.43 where their abil-       Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
ity to perform their normal duties has been im-            1988); Little v. Liquid Air Corp., 37 F.3d 1069,
paired by physical injury.                                 1071 n.1 (5th Cir. 1994) (en banc).

                                                       2
with the affidavits, if any, “when viewed in the            substantially limiting only because of the
light most favorable to the non-movant, ‘show               attitudes of others toward such an impair-
that there is no genuine issue as to any material           ment; or (3) has no impairment at all but is
fact.’” TIG Ins. Co. v. Sedgwick James, 276                 regarded by the employer as having a sub-
F.3d 754, 759 (5th Cir. 2002) (quoting Ander-               stantially limiting impairment.
son v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986)). Once the moving party has dem-               Gowesky v. Singing River Hosp. Sys., 321
onstrated that the non-moving party has no               F.3d 503, 508 (5th Cir. 2003) (citing Bridges
evidence such that a reasonable jury could               v. City of Bossier, 92 F.3d 329, 332 (5th Cir.
reach a verdict in its favor, the non-moving             1996)). Collins asserts that his situation falls
party must put-forth specific facts that demon-          under the third prong, because he claims that
strate a genuine factual issue for trial. Id.            although he had recovered from his back
                                                         injury, Saia still considered him as suffering
                       III.                              under a physical impairment that constituted a
    To establish a prima facie case of discrimi-         substantial limitation on his major life activity
nation under the ADA, a plaintiff must estab-            of workingSSas a city truck driver or at other
lish that he is a qualified individual with a            positions at Saia, including line driver or
disability and that a negative employment                warehouse employee.
action occurred because of his disability.
Sherrod v. Am. Airlines, Inc. 132 F.3d 1112,                A plaintiff must show that the employer
1119 (5th Cir. 1998). Therefore, a plaintiff             perceived a disability that substantially limited
must first establish that he has a “disability,”         him in one or more major life activities. See
which, under the ADA, encompasses (1) a                  Sherrod, 132 F.3d at 1119. Where, as here,
mental or physical impairment that substan-              the plaintiff alleges that working is the life
tially limits one or more major life activities of       activity in which he is limited, he must dem-
an individual; (2) a record of such impairment,          onstrate that the perception of disability would
or (3) being regarded as having such an im-              limit him from a broad class of jobs,4 defined
pairment. Id. (citing 42 U.S.C. § 12102(2); 29           as “jobs utilizing similar training, knowledge,
C.F.R. § 1630.2(g)).                                     skills or abilities, within that geographical area

   Collins does not allege that he was actually
disabled, but rather contends that he has a
“disability” under the third subsection, 42
U.S.C. § 12102(2)(C)SSthat he was “regarded                 4
                                                               Gowesky, 321 F.3d at 508 (“The EEOC reg-
as” disabled by Saia. We have previously set             ulations make plain that an inability to perform one
forth the manner in which one might establish            particular job, as opposed to a broad range of jobs,
such a claim:                                            does not constitute an impairment that substantially
                                                         limits one’s ability to work.”) (citing 29 C.F.R.
   One is regarded as having a substantially             § 1630.2(j)(3)(i)); Sherrod, 132 F.3d at 1120 (5th
   limiting impairment if the individual (1) has         Cir. 1998) (“Evidence of disqualification from a
                                                         single position or narrow range of jobs will not
   an impairment which is not substantially
                                                         support a finding that an individual is substantially
   limiting but which the employer perceives
                                                         limited from the major life activity of working.”)
   as constituting a substantially limiting              (citing Dutcher v. Ingalls Shipbuilding, 53 F.3d
   impairment; (2) has an impairment which is            723, 727 (5th Cir. 1995)).

                                                     3
. . . .”5                                                      Collins may have presented enough evi-
                                                            dence to show that any perceived disability
   Collins’s claim fails, because he has at most            prevented him from getting a job at Saia, but
demonstrated that his alleged perceived dis-                that is insufficient to establish a claim.7 Be-
abilitySSan inability to lift over 50 pounds on             cause he has failed to produce sufficient
a regular basis as a result of his back in-                 evidence that could demonstrate that Saia
jurySSaffects only a “narrow range of jobs.”                regarded him as being substantially limited in
He has identified only three specific types of              the life activity of working as the result of any
positions at Saia (all of which Saia claims has             perceived disability, the district court properly
a job requirement that the employee be able                 granted summary judgment on Collins’s ADA
regularly to lift at least 100 pounds), which is            claim.
insufficient to establish a broad range of em-
ployment.6                                                                         IV.
                                                                Collins claims that his termination was age
                                                            discrimination. To maintain such a claim, a
    5                                                       plaintiff must bear the initial burden to make a
    See Bridges, 92 F.3d at 334 (citing 29 C.F.R.
§ 1630.2(j)(3)(ii)(B)).                                     prima facie case of discrimination under the
                                                            burden-shifting framework of McDonnell
    6
      See, e.g., id. (holding that “a limitation that       Douglas Corp. v. Green, 411 U.S. 792 (1973).
prevented one from becoming a firefighterSSor               Where only circumstantial evidence of dis-
even a firefighter and associated municipal para-           crimination is available, a plaintiff must show
medic or EMT backup firefighterSS. . . only affects         that he (1) was a member of the protected
a ‘narrow range of jobs’”). Collins correctly notes         class (over 40 years old); (2) was qualified for
that we have previously held that an employer did           the position; (3) was fired; and (4) was either
not regard a plaintiff as disabled for a broad class        replaced by someone younger, was treated less
of jobs where the employer attempted to return the          favorably than employees who were similarly
plaintiff to his prior position or other positions          situated, or was otherwise discharged because
within the same company. See Gowesky, 321 F.3d
at 508 (holding that employer did not regard
plaintiff as disabled where it repeatedly attempted
to return him to work); see also Sherrod, 132 F.3d
at 1121 (holding that employer did not regard
plaintiff as disabled from a broad class of posit-
ions, because employer tried to place plaintiff in             6
                                                                (...continued)
other positions for which she was not deemed                claim failed as a matter of law because he pro-
disqualified because of her back condition). Al-            duced no evidence that any perceived disability
though Saia did not attempt to place Collins in his         barred him from a “broad class” of jobs, as is the
prior position or another position, such a finding is       case here.
not necessary to defeat a claim based on an allega-
                                                               7
tion that a plaintiff was discriminated against                  We have previously rejected a proposition that
because of a perceived disability. In Bridges, 92           preemption from employment in one’s chosen field
F.3d at 331, the employer took an adverse employ-           establishes a per se substantial limitation on work-
ment action against the plaintiff because of a              ing. See Bridges, 92 F.3d at 335. If such a broad
perceived disability and made no effort to place            prohibition is not a per se substantial limitation on
him in another position, yet we held that plaintiff’s       working, we cannot say that preemption from
                                       (continued...)       employment for one’s chosen employer is.

                                                        4
of his age.8                                            himSSthe violation of its Separability Pol-
                                                        icySSsuch that the burden was shifted to Col-
    If established, a prima facie case raises an        lins to produce evidence that the enforcement
inference of discrimination, and the burden of          of the policy was either a pretext, or merely
production shifts to the employer to proffer a          one motive in his termination, accompanying
“legitimate nondiscriminatory reason” for its           another motive of intentional age discrimina-
adverse employment action. Sandstad, 309                tion.
F.3d at 897. If it meets this burden, the pre-
sumption of discrimination is dissipated, and               Collins attempts to meet his burden of
the burden returns to the plaintiff to prove            showing pretext through the affidavit of Greg
discrimination.9 To survive summary judg-               Slade, Saia’s Human Resources Manager, who
ment, a plaintiff must offer “sufficient evidence       indicated that two other Saia employees,
to create a genuine issue of material fact either       Hollier and Dupuis, believed to be under 40
(1) that the employer’s reason is not true, but         years old, were allowed to return to work after
is instead a pretext for discrimination (pretext        receiving doctors’ releases from their DOT
alternative); or (2) that the reason, although          physicals. On the other hand, despite the fact
true, is only one of the reasons for its conduct,       that Collins received releases from his treating
and another “motivating factor” is the plain-           physician and his DOT physical, he was pre-
tiff’s protected characteristic (mixed-motive[s]        vented from returning to work, which ulti-
alternative).” Rachid v. Jack in the Box, Inc.,         mately resulted in his violation of the Separa-
376 F.3d 305, 312 (5th Cir. 2004) (internal ci-         bility Policy.
tations omitted). “If a plaintiff demonstrates
that age was a motivating factor in the empl-               This evidence is not probative of pretext,
oyment decision, then it falls to the defendant         however, because Collins has not produced
to prove that the same adverse action would             sufficient evidence that would demonstrate
have been made regardless of discriminatory             that his circumstances were sufficiently similar
animus.” Id.                                            to those of Hollier and Dupuy.10 Although
                                                        affidavit testimony indicates that Hollier and
   Saia does not contest that Collins was a             Dupuis were injured in off-the-job accidents,
member of the protected age group. Even if              received physician releases in their DOT
we assume arguendo that Collins otherwise               physicals and were allowed to return to their
properly stated a prima facie case of inten-            jobs at Saia, there was no indication that ei-
tional age discrimination, Saia adequately              ther’s physician release included a notice that
proffered a nondiscriminatory reason for firing
                                                           10
                                                               See Wyvill v. United Cos. Life. Ins. Co., 212
   8                                                    F.3d 298, 304-05 (5th Cir. 2000) (requiring plaint-
     See West v. Nabors Drilling USA, Inc., 330
F.3d 379, 384 (5th Cir. 2003) (citing Brown v.          iff, to demonstrate pretext, to show that employer
CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir.             treated others differently in “nearly identical cir-
1996)); see also Sandstad v. CB Richard Ellis,          cumstances”); Maniccia v. Brown, 171 F.3d 1364,
Inc., 309 F.3d 893, 897 (5th Cir. 2002).                1368 (11th Cir. 1999) (“We require that the quan-
                                                        tity and quality of the comparator’s misconduct be
   9
    Sandstad, 309 F.3d at 897 (citing St. Mary’s        nearly identical to prevent courts from second-
Honor Ctr. v. Hicks, 509 U.S. 502, 511-12               guessing employers’ reasonable decisions and
(1993)).                                                confusing apples with oranges.”).

                                                    5
he should be accommodated in his job by mod-
ifying physical requirements of his position, as
was the case with Collins.

   Because Collins did not meet his burden to
produce evidence from which a factfinder
could reasonably find that Saia’s proffered
reason for terminating his employment was
pretext for age discrimination, or that age
discrimination was an accompanying mixed
motive, the district court appropriately granted
summary judgment.

   AFFIRMED.




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