                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 99-10604
                           Summary Calendar
                        _____________________

           DAN M WEBSTER,

                                            Plaintiff-Appellant,

           v.

           TEXAS ENGINEERING EXTENSION SERVICE,

                                            Defendant-Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                     Docket No. 3:97-CV-2505-L
_________________________________________________________________

                            December 14, 1999

Before KING, Chief Judge, and JOLLY and PARKER, Circuit Judges.

PER CURIAM:*

      Plaintiff-Appellant Dan M. Webster appeals the district

court’s entry of summary judgment in favor of Defendant-Appellee

Texas Engineering Extension Service.     For the reasons stated

below, we AFFIRM.




                  FACTUAL AND PROCEDURAL BACKGROUND

      Plaintiff-Appellant Dan M. Webster (“Webster”) filed this


  *
   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this opinion should not be published and is not precedent except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.
action asserting violations of the Americans with Disabilities

Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”)

against Defendant-Appellee Texas Engineering Extension Services

(“TEEX”) after he was terminated from his position as an

instructor in TEEX’s Management and Leadership Development

Training Division.   TEEX is a program affiliated with Texas A & M

University.   It is headquartered in College Station, Texas but

has offices throughout the state.       Webster’s division offered

classes to clients in both the public and private sectors.       Those

classes covered management topics such as situational leadership,

customer service, time management, and team building.

     Although TEEX is a state entity, it is responsible for

raising 90% of its operating budget.       Funds were raised, in part,

by selling its instructional services.       TEEX instructors,

including Webster, were responsible for signing-up new clients

and generating revenue.    In 1996, TEEX began to encounter

substantial competition from private sector sources.       In

response, TEEX implemented a number of measures in an attempt to

improve revenue and lower costs.       Those measures included the

implementation of “financial objectives” for each instructor.

The objectives set a certain amount of revenue each instructor

was expected to generate.

     In late May 1996 Webster and another instructor, Carl Schwab

(“Schwab”), met with the head of the division, Dr. Milton Radke

(“Radke”).    Radke informed both men that they were not on track

to meet their financial projections and that their jobs would be


                                   2
eliminated if their performance failed to improve.    By August

1996, neither Schwab nor Webster was meeting his projection, and

both men were placed on half-time status.    TEEX’s revenue

continued to decline, and by December 1996 TEEX realized that a

reduction in workforce would be necessary to save the financially

struggling program.

      In early January 1997 Webster told Radke that his

performance had improved and that he had met Radke’s requirement

of generating approximately $5,000 in business a month over the

last three months.    Radke represented to Webster that, if this

was true, Webster would be returned to full-time status.      Radke

later learned that Webster had misrepresented his progress.1

      On January 16, 1997, Webster suffered a grand mal seizure.

After being transported to the hospital, Webster was diagnosed as

suffering from epilepsy.    The January seizure was the first grand

mal seizure Webster had ever suffered, although previous episodes

of dizziness he had experienced were diagnosed as petit mal

seizures consistent with epilepsy.    Webster was placed on anti-

convulsant medication, instructed not to drive for thirty days,

and discharged from the hospital the same day.    Webster’s doctor

also recommended that he not work near water, in high places, or

be the sole caretaker of children.    Although Webster was unable

to drive, he informed Radke that he would work from home.     During


  1
     It appears that while Webster did generate over $15,000 in
business in three months, he did not consistently generate
$5,000+ a month for three months. Rather, Webster generated $300
in October, $3,955 in November, and $10,836 in December.

                                  3
the period between his seizure and his dismissal from TEEX,

Webster continued to work and had his wife or son-in-law drive

him when he needed to travel on business.    On January 30, 1997,

Radke presented Webster with a letter stating that his position

was being eliminated and that he would no longer be employed by

TEEX.2   Since being terminated, Webster has apparently not

suffered another grand mal seizure though he has continued to

experience petit mal seizures as evidenced though periodic

episodes of dizziness.

      After Webster was discharged, Schwab, who earned a lower

salary than Webster and was expected to generate more revenue,

was returned to full-time status.    Despite these cost-saving

measures the division continued to struggle financially.      In

September 1997 Schwab and the remaining employees of TEEX’s

Management and Leadership Training Division were terminated and

the division was closed.

      Webster’s complaint alleged that his termination violated

both the ADA and the ADEA. The district court granted summary

judgment in favor of TEEX on Webster’s ADA claim because it found



  2
     The precise date on which the decision was made to terminate
Webster is an issue of some debate. TEEX claims that it
performed evaluations of Webster, Schwab, and another TEEX
employee on January 10, 1996, and that Webster scored lowest on
these evaluations and was therefore terminated. Webster argues
that the decision to terminate him was not made until after his
seizure and that TEEX went back and created a paper trail to
cover-up its illegal discrimination. Because we find that
Webster has failed to establish he is disabled under the ADA, we
need not determine the precise date on which the decision to
terminate Webster was made.

                                 4
that Webster failed to show he is disabled.    The court further

held that, even if Webster was disabled, he had failed to show

that the non-discriminatory reasons proffered by TEEX for

dismissing him were mere pretext for unlawful discrimination.

       The district court also granted summary judgment in favor of

TEEX on Webster’s ADEA claim.    The court found that, although

Webster made out a prima facie ADEA claim, TEEX had come forward

with legitimate, non-discriminatory reasons for dismissing him.

The court found that Webster failed to set forth any “discrete

facts” showing a causal nexus between his age and TEEX’s decision

to dismiss him.    Because Webster had failed to raise any genuine

issues of material fact regarding his termination, the court

granted summary judgment in favor of TEEX.



                             DISCUSSION

       This court reviews a grant of summary judgment de novo,

applying the same standards as the court below.     See Matagorda

County v. Law, 19 F.3d 215, 217 (5th Cir. 1994).    Summary

judgment is proper when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of

law.    See Celotex Corp. v. Catrett, 477 U.S. 317 (1986);

Fed.R.Civ.P. 56(c).    A dispute regarding a material fact is

“genuine” if the evidence is such that a reasonable jury could

find in favor of the nonmoving party.     See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).    If the moving party meets

the initial burden of establishing that there is no genuine


                                  5
issue, the burden shifts to the nonmoving party to produce

evidence of the existence of a genuine issue for trial. See

Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)

(en banc).    The nonmovant cannot satisfy his summary judgment

burden with conclusory allegations, unsubstantiated assertions,

or mere scintillas of evidence.        See id.

     Viewing all inferences in a light most favorable to Webster,

as we must under Matsushita Electrical Industries Company v.

Zenith Radio, 475 U.S. 574 587 (1986), we find that he has not

presented any genuine issues of material fact.        As will be

discussed below, we find that Webster has failed to present a

prima facie ADA claim because he can not show that he is

disabled.    And while Webster has presented a prima facie ADEA

claim, he has failed to demonstrate that TEEX’s proffered

legitimate, non-discriminatory reasons for terminating him were

mere pretext for unlawful discrimination.        We address each of

Webster’s claims in turn.



1. Webster’s ADA Claim

     Webster alleges that TEEX violated the ADA when it

terminated him.    To establish a prima facie case under the ADA,

Webster must show that: 1) he is disabled as defined by the ADA,

2) he is otherwise qualified for the job, and 3) he was fired

because of his disability.    See Talk v. Delta Airlines, Inc., 165

F.3d 1021, 1024 (5th Cir. 1999).       A person is disabled under the

ADA if they 1) have a physical or mental impairment that


                                   6
substantially limits one or more major life activities, or 2)

have record of such impairment, or 3) are regarded as having such

an impairment.    42 U.S.C. §12102(2).   Webster argues that he has

an impairment that substantially limits a major life activity and

that TEEX regarded him as having such an impairment.



     a. Does Webster Have an Impairment that Substantially Limits
     a Major Life Activity?


     TEEX concedes that Wester’s epilepsy constitutes a physical

impairment.    The debate between the parties revolves around

whether this impairment substantially limits a major life

activity.   Major life activities can include “functions such as

caring for onself, performing manual tasks, walking, seeing,

hearing, speaking, breathing, learning, and working.”    29 C.F.R.

§ 1630.2(i).    A person is “substantially limited” if they are

unable to perform a major life activity that can be performed by

the average person in the general population or they are

significantly restricted as to the time, place, condition,

duration, or manner under which they can perform the activity.

See 29 C.F.R. § 1630.2(j)(1).    Webster claims that his epilepsy

substantially limits him in the major life activity of working.

     A person is substantially limited in the major life activity

of working if they are unable 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 abilities.

The inability to perform a single, particular job does not


                                  7
constitute a substantial limitation in the major life activity of

working.”    Talk 165 F.3d at 1025 (citing 29 C.F.R. §

1630.2(j)(3)(i)).    We agree with the district court that Webster

has failed to show that he is substantially limited in the major

life activity of working.

      The affidavit submitted by Webster’s doctor indicated that

Webster was able to work as a management trainer for TEEX.    The

only restrictions placed on Webster (no working in high places,

near water, or with children) exclude him only from a narrow

category of jobs and do not render him unable to work.    Webster

admitted that he was able to, and did, work after having the

seizure.    Moreover, the four-week prohibition from driving did

not impair Webster’s ability to work.    We have noted in cases

dealing with the Rehabilitation Act, see 28 U.S.C. §701,3 that

the law contemplates an impairment “of a continuing nature,” and

not simply a temporary restriction.     Evans v. City of Dallas, 861

F.2d 846, 853 (5th Cir. 1988) (citations omitted).    Therefore, we

decline to consider Webster’s four-week driving prohibition when

determining whether he is substantially limited in the major life

activity of working.    Webster has failed to set forth any

evidence showing that he is substantially limited in the major



  3
     The definition of an individual with a disability under the
ADA is identical to the Rehabilitation Act’s definition of an
individual with a “handicap.” Compare 42 U.S.C. § 12102 with 29
U.S.C. §706(8)(B). The Rehabilitation Act is regarded as the
predecessor to the ADA and cases interpreting it are considered
relevant in ADA cases. See Zenor v. El Paso Healthcare Sys.,
Ltd., 176 F.3d 847, 854 n.2 (5th Cir. 1999).

                                  8
life activity of working.



       b. Was Webster Regarded by TEEX as Having an Impairment that
       Substantially Limits a Major Life Activity?


       Webster also alleges that officials at TEEX regarded him as

having a physical impairment that substantially limited a major

life activity and therefore he was disabled as defined by the

ADA.    Webster fails to present evidence showing that TEEX

regarded him as disabled.    The Supreme Court has recently stated

that there are two ways an individual “may fall within this

statutory definition: (1) a covered entity mistakenly believes

that a person has a physical impairment that substantially limits

one or more major life activities, or (2) a covered entity

mistakenly believes that an actual, nonlimiting impairment

substantially limits one or more major life activities.”      Sutton

v. United Air Lines, Inc. 119 S. Ct. 2139, 2149-50 (1999).

       Webster has failed to submit evidence that raises a factual

question regarding TEEX’s perception of Webster’s impairment.

Webster admits that he never told any of his co-workers about his

petit mal seizures (the dizzy spells), and he presents no

evidence indicating that anyone at TEEX who had the authority to

make employment decisions was aware of Webster’s condition prior

to his grand mal seizure.

       Webster claims that Radke was aware that Webster had

suffered a grand mal seizure within two days after it occurred.

Viewing Webster’s allegation as true, this still fails to raise a


                                  9
fact question as to whether Radke regarded Webster as

substantially limited in working.      The fact that Radke was aware

that Webster suffered a seizure, standing alone, does not show

that he believed Webster was substantially limited in his ability

to work.

     The Supreme Court has held that for an employer to regard an

employee as substantially limited in a major life activity, and

thus disabled, “it is necessary that [the employer] entertain

misperceptions about the individual.”      Sutton, 119 S. Ct. at

2150.   The Court noted that these “misperceptions” oftentimes

“‘resul[t] from stereotypic assumptions not truly indicative

of...individual ability.’” Id. (citing 42 U.S.C. §2101(7)).

Webster has failed to come forward with any evidence indicating

that Radke, or TEEX, believed that Webster was unable to perform

his job because of his seizure.    Webster’s evidence only

indicates that Radke knew Webster had suffered a seizure and that

Radke apparently allowed Webster to work at home, not that Radke

perceived him to be substantially limited in his ability to work.

We conclude that the district court correctly determined that

Webster failed to show he is disabled under the ADA.



2. Webster’s ADEA Claim.

     To make a prima facie showing under the ADEA, Webster must

show that he was terminated from his job, that he was qualified

for his position, that he was over forty years old when he was

fired, and that he was replaced by someone younger.      See Brown v.


                                  10
CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir. 1996).    TEEX admits

that Webster has made out a prima facie case under the ADEA.

     Once Webster proved his prima facie case, he established a

rebuttable presumption that he was discriminated against by TEEX

because of his age.     See Moore v. Eli Lilly & Co., 990 F.2d 812,

815 (5th Cir. 1993).    This presumption can be rebutted by TEEX if

it can “articulate a legitimate, non-discriminatory reason” for

firing Webster.   Id.   TEEX may meet this burden by setting forth

evidence that, “if believed by the trier of fact would support a

finding that unlawful discrimination was not the cause of the

employment action.”     Rhodes v. Guiberson Oil Tools, 75 F.3d 989,

993 (5th Cir. 1996) (en banc) (citing St. Mary’s Honor Center v.

Hicks, 509 U.S. 502 (1993)).    If TEEX produces such evidence, the

burden is shifted back to Webster to show that TEEX’s stated

reasons are mere pretext for otherwise unlawful discrimination.

See Moore, 990 F.2d at 812.

     We find that TEEX presented sufficient evidence showing that

its decision to terminate Webster was motivated by legitimate,

non-discriminatory reasons.    To withstand a motion for summary

judgment after TEEX carries its burden, Webster must submit

evidence creating a genuine issue of fact concerning pretext.

See id. at 815.   This proof must “consist of more than a mere

refutation of the employer’s legitimate nondiscriminatory reason”

but must offer “some proof that age motivated the employer’s

action.”   Id. at 815-16 (citations omitted).

     We agree with the district court that Webster failed to come


                                  11
forward with evidence raising a genuine issue of fact concerning

pretext.   TEEX raised a number of legitimate, non-discriminatory

reasons for dismissing Webster, including his poor performance

and the general financial strain on the division.    Webster cost

more to employ, and generated less income for the division, than

other TEEX employees.   Webster failed to present any evidence

demonstrating a causal nexus between his age and the decision to

terminate him.   Webster asserts that TEEX’s proffered reasons for

dismissing him were pretext for unlawful discrimination, but he

offers no evidence in support of this proposition.   Webster

merely argues that he was a better employee than Schwab and TEEX

should have chosen to terminate Schwab instead of him.   “The ADEA

was not intended to be a vehicle for judicial second guessing of

employment decisions, nor was it intended to transform the courts

into personnel mangers.”   Bienkowski v. American Airlines, Inc.,

851 F.2d 1503, 1507-08 (5th Cir. 1988) (citations omitted).

While Webster’s evidence may indicate that TEEX made an unwise

business decision in choosing to terminate him, rather than a

different employee, it does not demonstrate any causal links

between Webster’s age and TEEX’s decision.



                            CONCLUSION

     Webster has failed to come forward with any genuine issues

of material fact.   He is not disabled under the ADA and he failed

to introduce evidence showing that TEEX’s legitimate, non-

discriminatory reasons for terminating him were mere pretext for


                                12
unlawful age discrimination.   For these reasons, the district

court was correct in granting TEEX’s motion for summary judgment

and we therefore AFFIRM.




                                13
