                               UNITED STATES COURT OF APPEALS
                                        FIFTH CIRCUIT

                                              _________________

                                                 No. 99-41324
                                              (Summary Calendar)
                                              _________________


                  RANDOLPH JACK GARRETT,


                                                      Plaintiff - Appellant,

                  versus


                  AUTOZONE INC,


                                                      Defendant - Appellee.



                               Appeal from the United States District Court
                                    For the Eastern District of Texas
                                   District Court Number 98-CV-163

                                                  June 23, 2000

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

PER CURIAM:*

         Randolph Jack Garrett appeals the district court’s grant of summary judgment against him on

his Americans with Disabilities Act (“ADA”) claim. 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 R. 47.5, the court has determined that this opinion should not be published and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.
        Garrett was an employee of AutoZone Inc. (“AutoZone”) when he was diagnosed with lupus.1

He alleges that his condition made it difficult for him to perform some physically demanding tasks and

to work in the sun.

        Garrett told AutoZone store manager Graham Heflin about his diagnosis. While Heflin

repeatedly expressed concern about his condition, Garrett claims that Heflin failed to take easy steps

to accommodate his condition and that both Heflin and Area Manager Mark Cleveland told him that

his condition “better not” affect his work.

        AutoZone terminated Garrett six weeks after Garrett’s diagnosis, stating that he was fired for

removing five dollars from a cash register. Arguing that his termination was pretextual and that

AutoZone actually fired him for being disabled, Garrett brought this ADA suit. Garrett now appeals

the district court’s grant of summary judgment to AutoZone. We review the court’s decision de

novo, affirming if “there is no genuine issue as to any material fact and . . . and the moving party is

entitled to judgment as a matter of law.” Hawking v. Ford Motor Credit Co., 210 F.3d 540, 545 (5th

Cir. 2000) (quoting Fed. R. Civ. P. 56(c)).

        The ADA prohibits discrimination against disabled employees. See 42 U.S.C. § 12112(a).

A plaintiff makes out a prima facie case of an ADA violation by showing “(1) that he has a disability;

(2) that he was qualified for the job; and (3) that he was subject to an adverse employment decision

because of his disability.” Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999). An individual has a

“disability” if the individual has “a physical or mental impairment that substantially limits one or more

of the major life activities of such individual” or is “regarded as having such an impairment.” 42



        1
                 Although Garrett claims he was told he had lupus, he was later rediagnosed as having “folliculitis
and fibromyalgia-like problems.”

                                                       -2-
U.S.C. § 12102(2); see also Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S. Ct. 2139, 2144,

144 L. Ed. 2d 450 (1999) (same).

         Garrett claimed that he was regarded by AutoZone as having a disability. The district court

found that he made no such showing, mostly because his “own testimony demonstrates that he was

treated in the same manner as he was before he informed Autozone that he had been diagnosed with

lupus.”2

         To regard an employee as disabled, t he employer “must believe either that one has a

substantially limiting impairment that one does not have or that one has a substantially limiting

impairment when, in fact, the impairment is not so limiting.” Sutton, 119 S. Ct. at 2150 (“In both

cases, it is necessary that a covered entity entertain misperceptions about the individual . . . .”); see

also McInnis v. Alamo Community College Dist., 207 F.3d 276, 281 (5th Cir. 2000) (same). In both

instances, the key to a “regarded as” claim is that the employee is viewed as having a “substantially

limiting impairment,” which means that the person is perceived as being either unable to perform or

significantly restricted in the performance of a “major life activity.” See 29 C.F.R. § 1630.2(j)(1),

quoted in McInnis, 207 F.3d at 280. Major life activities include “functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and



         2
                   Garrett also argued that he was actually disabled. The district court rejected this claim after
determining that Garrett produced no evidence of actual impairment. It noted that he “admitted that he can work in
a variety of jobs” and that he failed to produce “some evidence that [he] is precluded from a wide range of jobs.”
Garrett has abandoned this argument by not fully presenting it on appeal. See Ross v. University of Texas at San
Antonio, 139 F.3d 521, 524 n.1 (5th Cir. 1998) (“Ross has not articulated any cogent argument with respect to his
disparate impact claim. [This] claim[] [is] therefore deemed abandoned and form[s] no part of the Court's
discussion.”). Similarly, his failure to renew his intentional infliction of emotional distress claim on appeal waives
this claim. See id.
         Even if we were to consider his actual disability claim, we would affirm for substantially the reasons noted
by the district court. Garrett has not identified evidence showing that the district court erred in finding there was no
genuine issue of material fact as to whether he was actually disabled.

                                                          -3-
working.” 29 C.F.R. § 1630.2(i), quoted in McInnis, 207 F.3d at 280. Garrett identifies three major

life activities he was allegedly regarded as unable to perform: working, walking, and standing.

         Garrett’s evidence that he was regarded as disabled consists of his co-workers’ knowledge

of his illness, Heflin’s request for information about his illness and Heflin’s statement that he needed

the information to know if Garrett’s condition was “going to affect his performance,” statements from

Heflin and Cleveland that Garrett should not let his illness affect his performance, and Heflin’s

statements about how serious he thought Garrett’s illness was. While this evidence shows concern

over Garrett’s condition and knowledge that he suffered some illness, it does not show that he was

regarded as unable or limited in his ability to perform a major life activity. An employer’s knowledge

of the employee’s condition does not alone show that the employee was regarded as disabled. See

Kelly v. Drexel University, 94 F.3d 102, 109 (3d Cir. 1996) (“Moreover, we hold that the mere fact

that an employer is aware of an employee's impairment is insufficient to demonstrate either that the

employer regarded the employee as disabled or that that perception caused the adverse employment

action.”); Cody v. CIGNA Healthcare of St. Louis, Inc., 139 F.3d 595, 599 (8th Cir. 1998) (“Schultz's

mere knowledge of behavior that could be associated with an impairment does not show that Cigna

treated Cody as if she were disabled.”). Garrett’s evidence does nothing more than show that other

AutoZone employees knew about his condition.3



         3
                   For example, his most persuasive evidence is various statements made by Heflin: he understood
Garrett was in pain but directed Garrett to continue working; he knew “there might be times when [Garrett would] have
trouble doing a lot of walking” or “doing a lot of standing”; he thought Garrett was “gonna get tired all the time, gonna
be more reactive to sunlight, gonna have spells of feeling worse and better . . . from day to day, and fatigue”; he knew
that if Garrett’s condition “went badly” it could become life-threatening; and he felt entitled to receive information
about Garrett’s condition if it might “affect his performance.” This evidence shows a knowledge of Garrett’s illness
and concern about it, but it does not establish the requisite belief that Garrett was substantially limited in his ability
to work, stand, or walk or that his illness was actually affecting his performance.


                                                           -4-
       Additionally, AutoZone’s ongoing treatment of Garrett belies any claim that AutoZone

regarded him as unable to work, stand, or walk. Garrett concedes that AutoZone continued to make

him work without making minor accommodations for him after he told Heflin about his condition.

See Hamilton v. Southwestern Bell Tele. Co., 136 F.3d 1047, 1051-52 (5th Cir. 1998) (rejecting a

claim that the employer regarded the employee as disabled where the employer “continued to employ

[the employee] after he reported his mental difficulties” and where the employee produced no

evidence that the employer regarded him as unable to perform a wide range of jobs). He never shows

that AutoZone determined at some point that his abilities were limited.

       Garrett relies heavily on his claim that his firing was pretextual. Even we found this relevant

to his showing of a disability, but cf. McInnis, 207 F.3d at 280 (noting that a showing of pretext

generally becomes relevant after the employee establishes a prima facie case of disability and after

the employer articulates a non-discriminatory reason for the termination), the firing does not establish

that he was regarded as unable to do anything more than the job he lost. Garrett still would not have

shown that he was viewed as unable to perform a wide range of jobs, or substantially limited in his

ability to walk or stand. See Deas v. River West, L.P., 152 F.3d 471, 481 (5th Cir. 1998) (rejecting

a claim where the plaintiff showed his employer viewed him as unable to perform a specific job but

where “[t]here is no evidence that either [supervisor] thought that Deas could not work safely in

either ‘a class of jobs or a broad range of jobs in various classes’”) (quoting 29 C.F.R. §

1630.2(j)(3)(i)); 29 C.F.R. § 1630.2(j)(3)(i) (“The inability to perform a single, particular job does

not constitute a substantial limitation in the major life activity of working.”)); cf., e.g., Rogers v.

International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (“[T]here is no evidence to

connect this impairment with an inability to perform numerous jobs or other of life's ordinary


                                                  -5-
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.”).

          In sum, Garrett failed to introduce evidence showing that he was regarded as disabled—as

that term is used in the ADA—by AutoZone. Accordingly, summary judgment against him was

proper.

          AFFIRMED.




                                                -6-
