                  United States Court of Appeals,

                          Fifth Circuit.

                           No. 95-30075.

              Wade E. ROGERS, Plaintiff-Appellant,

                                v.

        INTERNATIONAL MARINE TERMINALS, INC., Defendant,

                                and

    International Marine Terminals, erroneously designated as
International Marine Terminals, Inc., Defendant-Appellee.

                          July 12, 1996.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before JOLLY, JONES and BENAVIDES, Circuit Judges.

     EDITH H. JONES, Circuit Judge:

     Wade E. Rogers ("Rogers") appeals the district court's grant

of summary judgment to his former employer, International Marine

Terminals ("IMT"), on Rogers' claims of employment discrimination.

Rogers sought relief under the Americans with Disabilities Act

("ADA") and § 510 of the Employee Retirement Income Securities Act

("ERISA") after he was terminated during a reduction in force

("RIF") at IMT.   On his ADA claims, the district court held that

Rogers was not disabled for purposes of the ADA, that he was

nevertheless not qualified for his position, and that he was not

discriminated against because of his association with his disabled

wife.   The district court denied his ERISA claim, holding that

evidence of IMT's specific intent to discriminate was lacking.

After reviewing de novo the summary judgment to IMT, this court


                                 1
AFFIRMS.     We also hold that Rogers was not a qualified employee

under ADA because he was not able to attend work at the time he was

terminated,     and   IMT    was    not       required    to    make   reasonable

accommodation in the form of an indefinite leave of absence.

                                   BACKGROUND

     Rogers was employed by IMT from 1984 to 1993, and worked as a

Class I mechanic with the company from 1990 until his layoff in

1992.      In October 1992, Rogers took paid sick leave for the

treatment of persistent pain, swelling, and other problems in his

right ankle attributable to bone spurs, ligament damage, and gout.

After using all of his sick leave, Rogers received a year of

disability benefits pursuant to a disability plan sponsored by IMT.

Rogers had surgery to correct the problems with his right ankle,

but was not released for work by his physician until December of

1993.   He obtained employment elsewhere.

     Early in January of 1993, while Rogers was unavailable for

work, IMT began to implement a RIF with the goal of laying off at

least 25 employees by the end of March.                  Rogers and five other

employees were terminated.         According to IMT's Vice-President of

Operations, Thomas Lange ("Lange"), Rogers was fired because of his

prior absenteeism and his unavailability for work since October of

1992.

     Rogers's    wife   is   afflicted         with   Crohn's    disease,   which

requires her to take parenteral nutrition.                     Medicare paid for




                                          2
nutritional    formulas    for   Mrs.    Rogers.1      IMT's      Group   Employee

Benefit      Plan    ("Benefit          Plan")       specifically         excluded

"nutrients/nutritional supplements provided as an inpatient or

outpatient beyond 30 months of the initial treatment of an illness

or injury."     Because of this exclusion, IMT never paid for Mrs.

Rogers' nutritional formulas or treatments.                 Eight months after

Rogers's    termination,    however,        IMT   amended   its   Benefit   Plan,

effective the preceding January to cover nutrients or nutritional

supplements when such supplements are "prescribed by a medical

doctor for life sustaining purposes."

     Rogers filed suit against IMT alleging that the company

violated the ADA by terminating him because of (1) his alleged

disability;     (2) the perception, albeit inaccurate, that he was

disabled;    and (3) his association with his disabled wife.                Rogers

further alleged that IMT violated ERISA by terminating him with the

specific intent to prevent him from exercising his rights under

IMT's Benefit Plan. The district court's rejection of the claims as

a matter of law prompts this appeal.

                                 DISCUSSION

I. Standard of Review

         We review the district court's grant of judgment as a matter

of law de novo, employing the same criteria used in that court.

Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 588 (5th

Cir.1995).     Summary judgment is proper only "if the pleadings,


     1
      The cost of such parenteral nutrition approaches $100,000
yearly.

                                        3
depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law."          Fed.R.Civ.P. 56(c).        Factual

questions and inferences are viewed in the light most favorable to

the nonmovant. Lemelle v. Universal Mfg. Corp., 18 F.3d 1268, 1272

(5th Cir.1994).

II. ADA Claims

A. Actual 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,

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 claim, the plaintiff must, of course, establish that he has

a disability.       De la Torres v. Bolger, 781 F.2d 1134, 1136 (5th

Cir.1986).

     The ADA defines a disability as follows:

     (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 © being regarded as
     having such an impairment.

42 U.S.C. § 12102(2).           The pertinent inquiries are therefore

whether Rogers had a physical or mental impairment, and, if so,

whether it substantially limited one or more of his major life

activities.     See, e.g., Dutcher v. Ingalls Shipbuilding, 53 F.3d


                                      4
723,       725-26    and     n.   4   (5th    Cir.1995)     (noting    that    ADA   and

Rehabilitation Act definitions of "disability" are substantially

equivalent);          Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 722 (2d

Cir.1994).            The    parties    agree      that    Rogers'    ankle   problems

constituted a physical impairment.

           The dispute is whether Rogers's ankle problems substantially

limited      his     major     life   activities     of    standing,    walking,     and

working.2       Under the ADA, not all limitations are substantial;

Rogers's difficulties with his ankle do not substantially limit him

unless they render him

       (i) Unable to perform a major life activity that the average
       person in the general population can perform; or

       (ii) Significantly restricted as to the condition, manner or
       duration under which an individual can perform a particular
       major life activity as compared to the condition, manner, or
       duration under which the average person in the general
       population can perform the same major life activity.

29 C.F.R. § 1630.2(j)(1).                    In the instant case, there is no

evidence that Rogers's impairment substantially limits his ability

to   stand     and     walk.      For   instance,     an    occupational      therapist

evaluated Rogers after surgery as having "good body mechanics,"

"fluid transitional movement into/out of squatting, crouching,

kneeling,       and    crawling,"       and    a   "tolerance    for    standing     and

sitting."

       2
      Rogers also contends that his impairment substantially
limited his major life activity of climbing. While not an
exhaustive list, "[m]ajor life activities means functions such as
caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 29 C.F.R.
§ 1630.2(i) (1995); Dutcher, 53 F.3d at 726 n. 7. Climbing is
not such a basic, necessary function and this court does not
consider it to qualify as a major life activity under the ADA.

                                               5
      Rogers also contends that his ankle impairment substantially

limits his ability to work.               To support this contention, Rogers

stresses that he continues to suffer from a 13% permanent, partial

disability to his entire body.              However, there is no evidence to

connect this impairment with an inability to perform numerous jobs

or other of life's ordinary functions;                  absent such evidence, the

mere existence of a 13% permanent, partial disability does not

demonstrate   that        Rogers    has    been    substantially      impaired    from

performing a major life activity. Importantly, Rogers acknowledges

that before surgery, he was able to work at IMT without any

limitation    and    that     his    condition         improved   after    the    ankle

operation.     Also, the therapist concluded that Rogers has the

current functional capacity for heavy work and has the ability to

perform without any restriction his previous duties, including

welding, fitting, and millwrighting.

      In sum, Rogers's ankle afflictions were temporary and did not

constitute a permanent disability;                Rogers conceded as much in his

affidavit    to     the    EEOC.      The       EEOC    regulations      concur    that

"temporary, non-chronic impairments of short duration, with little

or no long term or permanent impact, are usually not disabilities."

29 C.F.R. § 1630.2(j) (Appendix).                 A wide range of afflictions,

many considerably more severe than Rogers's surgically correctable

and   now    corrected       ankle        difficulties,      do    not    constitute

disabilities under the ADA;           for example, a " "borderline' case of

cerebral palsy that only slightly interferes with an individual's

ability to read ... and to speak ... is not a disability."                        EEOC


                                            6
Compliance Manual, § 902.4(c)(1).         The record is bereft of support

for Rogers's claim that the physical impairments imposed by the

problems with his ankle are either chronic or severe enough to

constitute a disability under the ADA.

      Furthermore, even assuming Rogers was disabled for purposes

of the ADA, he did not demonstrate both that he was a "qualified

individual"   and    that   IMT   could     accommodate   his   disability

reasonably.    The   ADA    defines   a   "qualified   individual   with   a

disability" as "an individual who, with or without accommodation,

can perform the essential functions of the employment position that

such individual holds or desires."         42 U.S.C. § 12111(8).    Hence,

this court considers whether Rogers could "perform the essential

functions of the job, i.e., functions that bear more than a

marginal relationship to the job at issue," and, if not, whether

"any reasonable accommodation by the employer would enable [him] to

perform those functions." Chandler v. City of Dallas, 2 F.3d 1385,

1393-94 (5th Cir.1993).

     When Rogers was terminated effective January 6, 1993, he

acknowledges that he was unavailable for work, recuperating from

elective ankle surgery performed a month earlier.         In fact, Rogers

remained unavailable for work until released by his physician in

December of 1993.    Because Rogers could not attend work, he is not

a "qualified individual with a disability" under the ADA.                  As

several courts have recognized, "[a]n essential element of any ...

job is an ability to appear for work ... and to complete assigned

tasks within a reasonable period of time."         Carr v. Reno, 23 F.3d


                                      7
525, 530 (D.C.Cir.1994). See also, Tyndall v. Nat'l Educ. Centers,

Inc. of Cal., 31 F.3d 209, 213 (4th Cir.1994) (an employee "who

does not come to work cannot perform any of his job functions,

essential or otherwise.").

         Moreover, Rogers cannot demonstrate that IMT could reasonably

accommodate his purported disability.      While Rogers contends that

IMT was required to accommodate him by allowing him to enjoy

indefinite leave, this argument is meritless.          As the Fourth

Circuit recently explained,

     Nothing in the text of the reasonable accommodation provision
     requires an employer to wait an indefinite period for an
     accommodation to achieve its intended effect.          Rather,
     reasonable accommodation is by its terms most logically
     construed as that which presently, or in the immediate future,
     enables the employee to perform the essential functions of the
     job in question....     [R]easonable accommodation does not
     require [an employer] to wait indefinitely for [the
     employee's] medical conditions to be corrected....

Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995).

B. Perceived Disability

         In the alternative, Rogers urges that IMT violated the ADA by

firing him due to the perception, albeit inaccurate, that he was

disabled.3     The district court found no evidence to support this

perception, emphasizing that Rogers openly assessed his condition

as temporary and that Michael Carter, Rogers' supervisor while at

IMT, testified that he never considered or perceived Rogers as

truly disabled.


     3
      Of course, the facts, already discussed, that Rogers was
unavailable for work and that he cannot demonstrate that IMT
could accommodate him reasonably also dispose of his claim that
he was terminated because he was perceived as disabled.

                                    8
      The ADA protects individuals who are regarded or perceived as

disabled from employment discrimination.             The ADA's definition of

"disability" includes any individual that is "regarded as having

... an impairment" that substantially limits one or more of his

major life activities.        42 U.S.C. § 12102(2).4        But as the district

court correctly concluded, the record does not establish that IMT

regarded or perceived Rogers as disabled and that it discriminated

against him on this basis.              Similarly, the assertion that IMT

regarded Rogers as disabled because of his chronic absenteeism is

unsupported.     In July of 1991, Rogers was indeed counseled for his

absenteeism, but from the date of that counseling until October of

1992, IMT's records document not a single instance of absenteeism

by Rogers.     Quite simply, Rogers did not hold himself out to IMT as

suffering from a disability; IMT did not regard or perceive Rogers

as   disabled;       and     the   record     does   not     contain      evidence

demonstrating otherwise.        As a result, the district court properly

awarded   IMT    summary     judgment    on   Rogers's     claim   that    he   was

terminated because IMT perceived him as disabled.

      Rogers     makes   a   related    assertion    that    IMT   "wrongfully"

perceived him as disabled because of his absenteeism. Rogers cites

an ADA implementing regulation that describes attitudinal barriers

of   employers    toward     disabled    individuals,    including     "concerns


      4
      In part, this provision is intended to combat "attitudinal
barriers that frequently result in employers excluding
individuals with disabilities. These include concerns regarding
productivity, safety, insurance, liability, attendance, cost ...
and acceptance by coworkers and customers." Comment, 29 C.F.R. §
1630.2(1).

                                         9
regarding      productivity,           safety,        insurance,         liability,

attendance...."      Comment, 29 C.F.R. § 1630.2(1) (emphasis added).

Rogers    misreads    this       regulation.        The     regulation   prohibits

discrimination on the basis of unfounded concerns about disabled

people.    Here, the concerns about Rogers's unavailability to work

from October 1992 to January 1993 and beyond were very real.

C. Association with a Disabled Person

         Rogers also asserts that IMT unlawfully terminated him

because of his association with his disabled wife.                         The ADA

prohibits employers from taking adverse employment action "because

of the known disability of an individual with whom the qualified

individual is known to have a relationship or association."                        42

U.S.C. § 12112(b)(4).            For instance, an employer cannot make an

adverse    employment      decision    based   on     the    "belie[f]    that   the

[employee] would have to miss work" in order to care for a disabled

person.    See, e.g., Comment, 29 C.F.R. § 1630.

     Although IMT knew that Mrs. Rogers has Crohn's disease, there

is no evidence to substantiate the assertion that IMT terminated

Rogers because of his association with her.                  While IMT was aware

that Rogers occasionally missed work to care for his wife, the

record does not suggest that IMT fired Rogers for that reason.                     In

fact, before Rogers was counseled for his absenteeism in July of

1991,     Carter   wrote     a    memorandum     to   Lange     discussing       this

absenteeism and attributing all of the absences to Rogers's, not

his wife's ailment.          Later, Lange recommended counselling for

Rogers's absenteeism, which Lange likewise attributed exclusively


                                        10
to Rogers's own health problems.        The record contains no evidence

that the absences that, in part, led to Rogers' discharge were

attributed to his wife's disability in any way.        Because there is

no genuine, material fact issue on this claim, judgment as a matter

of law in favor of IMT was proper.

III. ERISA Claim

     Last, Rogers argues that IMT terminated him to eliminate from

its employee health benefit program the prospective costs of his

wife's    medical   treatment,   especially    those   incurred   by   her

parenteral nutrition.    But IMT had never borne any of those costs;

Medicare paid for the costs of these nutritional formulas for Mrs.

Rogers.    As noted earlier, the Benefit Plan specifically excluded

parenteral nutrition from coverage while Rogers worked for IMT.

Undaunted, however, Rogers points out that after his termination,

IMT amended its Benefit Plan to cover nutrients or nutritional

supplements "prescribed by a medical doctor for life sustaining

purposes."   From this subsequent amendment, Rogers infers that IMT

terminated him intentionally to prevent him from enjoying this

coverage for his wife.

     To establish a prima facie case under § 510 of ERISA, Rogers

must prove that IMT, acting with specific discriminatory intent,

retaliated against him or his wife for filing medical claims

interfered with any right to which Rogers may have become entitled

under the Benefit Plan.     See, e.g., 29 U.S.C. § 1140.      See also,

Hines v. Mass. Mutual Life Ins. Co., 43 F.3d 207, 209 (5th

Cir.1995) ("[a]n essential element of a Section 510 claim is proof


                                   11
of defendant's specific discriminatory intent.");            McGann v. H & H

Music Co., 946 F.2d 401, 404 (5th Cir.1991), cert. denied, 506 U.S.

981, 113 S.Ct. 482, 121 L.Ed.2d 387 (1992).

     As   before,     there   is   no   evidentiary   support   for   Rogers'

assertion.5      To     the   contrary,      the   record   demonstrates    a

nondiscriminatory reason for IMT's decision to amend the Benefit

Plan;     the company sought to insure the cost of nutritional

supplements for an employee who was terminally ill.              IMT, as an

employer, has the right to amend its Benefit Plan in this fashion

and is free to modify the terms and conditions of benefit plans

offered to employees.     See IMT Benefit Plan § 20;        see also McGann,

946 F.2d at 407 ("ERISA does not broadly prevent an employer from

"discriminating' in the creation, alteration, or termination of

employee benefit plans.").           Also, by the time IMT amended its

Benefit Plan, Rogers was no longer a participant, as he was a

former employee.       Because Rogers offered no evidence that IMT

specifically intended to deprive him of a right to which he was

entitled under the company's Benefit Plan, summary judgment for IMT

was warranted.

                                   CONCLUSION

     5
      Indeed, even assuming Mrs. Rogers had a valid claim under
the Benefit Plan, IMT could have attempted to limit her claims by
terminating Rogers for his absenteeism. The Benefit Plan
expressly provides that "[c]overage will terminate for an
employee on the ... [d]ate employment terminates." Benefit Plan
§ 16. Should IMT have terminated Rogers in this manner, Mrs.
Rogers would have had the right to continue coverage for herself,
provided her spouse's termination was "for reasons other than
gross misconduct" and if she had informed IMT in writing within
60 days from the date of Rogers' termination of her intent to
continue coverage. Benefit Plan § 17.

                                        12
     For the foregoing reasons, the decision of the district court

granting summary judgment in favor of IMT on all of the claims

asserted against it by Rogers is AFFIRMED.




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