Waldrip v. General Electric Co

United States Court of Appeals
Fifth Circuit
F I L E D
April 1, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-30155
_______________
WILLIAM R. WALDRIP,
Plaintiff-Appellant,
VERSUS
GENERAL ELECTRIC COMPANY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
_________________________
Before GARWOOD, SMITH, and BARKSDALE,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
William Waldrip sued his former employer,
the General Electric Company (“GE”), for a
violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq. The
district court granted summary judgment to
GE, concluding that Waldrip does not have a
“disability” as defined by the ADA. Finding no
error, we affirm.

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I.
Waldrip worked in various jobs at a GE
manufacturing plant from 1973 to 1999. The
plant contains heavy industrial machinery
whose operators must remain alert. Beginning
in 1984, his job required him to operate heavy
machinery.
In 1996, Waldrip was diagnosed with
chronic pancreatitis, which occasionally re-
quired him to miss a few days of work. He
also began to take pain medication for his con-
dition. These prescription drugs are central
nervous system depressants and come with a
warning not to operate heavy machinery while
under their influence.
GE learned of Waldrip’s medication in
1999 when Waldrip mentioned it to the com-
pany nurse. She asked him to bring his pre-
scription bottles to work. The company doc-
tor observed the warnings on the bottles and
told Waldrip he could not work while under
the influence of these medications; Waldrip
claims company officials then fired him and re-
moved him from the plant. According to GE,
however, they told him he should switch pain
medications or refrain from using the med-
ication the evening before or during the work-
day. Waldrip did not return to work and sued
for discriminatory discharge under the ADA,
42 U.S.C. § 12112(a).
II.
“As a threshold requirement in an ADA
claim, the plaintiff must, of course, establish
that he has a disability.” Rogers v. Int’l Ma-
rine Terminals, Inc., 87 F.3d 755, 758 (5th
Cir. 1996). The parties dispute whether Wal-
drip has a “disability,” so we choose to address
that question first. Because we conclude that
Waldrip does not have a “disability” as defined
by the ADA, we need not consider GE’s other
defenses.
A.
The ADA defines “disability” as, “with re-
spect to an individual[,] . . . a physical . . .
impairment that substantially limits one or
more major life activities of such individual.”
42 U.S.C. § 12102(2)(A). There is a three-
part test for applying this definition. Bragdon
v. Abbott, 524 U.S. 624, 631 (1998). We
must determine first whether Waldrip has an
“impairment,” next whether the activity on
which he relies is a “major life activity,” and, if
so, whether his impairment “substantially lim-
its” that major life activity. Id.
“[T]hese terms need to be interpreted strict-
ly to create a demanding standard for qualify-
ing as disabled.” Toyota Motor Mfg., Ky., Inc.
v. Williams, 534 U.S. 184, 197 (2002). In
enacting the ADA, Congress expressly esti-
mated that “some 43,000,000 Americans have
one or more physical or mental disabilities.”
42 U.S.C. § 12101(a)(1). When one compares
this estimate to the countless aches and pains
from which most of us unhappily suffer, one
can easily see that a lenient interpretation
would expand the class of disabled persons far
beyond Congress’s expectation. Toyota, 534
U.S. at 197; Sutton v. United Air Lines, Inc.,
527 U.S. 471, 487 (1999). We therefore con-
duct a rigorous and carefully individualized
inquiry into Waldrip’s claimed disability to ful-
fill our “statutory obligation to determine the
existence of disabilities on a case-by-case
basis.” Albertson’s, Inc. v. Kirkingburg, 527
U.S. 555, 566 (1999).
1.
Waldrip claims his chronic pancreatitis sub-
stantially limits his ability to eat and digest.
Chronic pancreatitis is a “physical impair-
ment,” is often painful, and can cause bleeding,

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pancreatic necrosis (tissue death), or even pan-
creatic cancer. In Holtzclaw v. DSC Commu-
nications Corp., 255 F.3d 254, 258 (5th Cir.
2001), we treated chronic pancreatitis as an
impairment. It also fits with the definition of
“physical impairment” adopted by the Equal
Employment Opportunity Commission
(“EEOC”): “Any physiological . . . condition
. . . affecting . . . digestive . . . and endocrine
[systems].” 29 C.F.R. § 1630.2(h)(1).1 GE
more or less concedes this point by not argu-
ing otherwise.
2.
We also agree that eating is a “major life
activity.” First, eating satisfies the Supreme
Court’s general standard for a “major life ac-
tivity,” namely, “those activities that are of
central importance to daily life,” Toyota, 534
U.S. at 197, and activities that “are central to
the life process itself,” Bragdon, 524 U.S. at
638. By any measure, eating is of central im-
portance to daily life and the life process.
Second, eating is more important to life
than are many of the activities previously rec-
ognized by the Supreme Court or this court as
major life activities.2 Third, three other cir-
cuits have recognized eating as a major life ac-
tivity, and none has decided to the contrary.3
Fourth, the EEOC’s regulations recognize
many less important activities, for example,
performing manual tasks and speaking, as ma-
jor life activities. 29 C.F.R. § 1630.2(i).
3.
Waldrip, however, offers no evidence that
his chronic pancreatitis “substantially limits”
the major life activity of eating. The sub-
stantial-limit requirement is the linchpin of
§ 12102(2)(A). Without it, the ADA would
cover any minor impairment that might tangen-
tially affect major life activities such as breath-
ing, eating, and walking. For this reason, an
impairment must not just limit or affect, but
must substantially limit a major life activity.
Albertson’s, 527 U.S. at 565 (contrasting
“mere difference” with a “significant restric-
tion”). The effects of an impairment must be
severe to qualify as a disability under the
ADA.4
1 We cite the EEOC regulations as persuasive
authority, not for Chevron deference. We early on
stated, and often have repeated, that the regulations
“provide significant guidance.” Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
Yet, we have never given the regulations Chevron
deference, and recent decisions of the Supreme
Court strongly suggest that the regulations are not
entitled to such deference, because Congress dele-
gated the authority to implement Title I of the
ADA, which regulates employment, to the EEOC,
42 U.S.C. § 12116, but Title I does not include
§ 12102. See Toyota, 534 U.S. at 194; Albert-
son’s, 527 U.S. at 563 n.10; Sutton, 527 U.S.
at 478-80.
2 Bragdon, 524 U.S. at 637-39 (reproduction);
Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999)
(hearing); Talk v. Delta Airlines, Inc., 165 F.3d
1021, 1025 (5th Cir. 1999) (walking); Still v.
Freeport-McMoran, Inc., 120 F.3d 50, 52 (5th
Cir. 1997) (seeing).
3 Lawson v. CSX Transp., Inc., 245 F.3d 916,
923-24 (7th Cir. 2001); Forest City Daly Hous.,
Inc. v. Town of N. Hempstead, 175 F.3d 144, 151
(2d Cir. 1999); Land v. Baptist Med. Ctr., 164
F.3d 423, 424 (8th Cir. 1999).
4 See Toyota, 534 U.S. at 197 (“The word ‘sub-
stantial’ thus clearly precludes impairments that in-
terfere in only a minor way with the performance
of [the major life activity of] manual tasks from
qualifying as disabilities.”); id. at 198 (holding that
(continued...)

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“The particularized inquiry mandated by the
ADA centers on substantial limitation of major
life activities, not mere impairment.” Ivy, 192
F.3d at 516. In Burch v. Coca-Cola Co., 119
F.3d 305 (5th Cir. 1997), for example, this
court held that alcoholism is not a disability,
despite its effects on walking, talking, thinking,
and sleeping, because these effects, though se-
rious, are merely temporary. “Permanency,
not frequency, is the touchstone of a substan-
tially limiting impairment.” Id. at 316. Like-
wise, in Ellison v. Software Spectrum, Inc., 85
F.3d 187 (5th Cir. 1996), we held that cancer
and its treatment did not substantially limit the
major life activity of work. “Obviously, [plain-
tiff’s] ability to work was affected; but . . . far
more is required to trigger coverage under
§ 12102(2)(A).” Id. at 191 (emphasis added).
Many other cases follow this lead and hold
that the effects of an impairment, even some
serious ones, do not rise to a substantial limit.5
Moreover, a plaintiff must prove a substan-
tial limit with specific evidence that his partic-
ular impairment substantially limits his partic-
ular major life activity. “[T]he ADA requires
those ‘claiming the Act’s protection to prove
a disability by offering evidence that the extent
of the limitation caused by their impairment in
terms of their own experience is substantial.’”
Toyota, 534 U.S. at 198 (quoting Albertson’s,
527 U.S. at 567) (alterations omitted). A
plaintiff cannot survive summary judgment by
showing that an impairment like his own could
substantially limit a major life activity of an-
other person or in his own future. Rather, he
must show that his impairment has actually and
substantially limited the major life activity on
which he relies.
For example, in Bragdon, 524 U.S. at 631,
the Court held that the respondent’s HIV sub-
stantially limited her major life activity of re-
production. In Blanks, by contrast, we held
that the plaintiff’s HIV did not substantially
limit his major life activity of reproduction, be-
cause he had failed to allege any substantial
limit and, to the contrary, admitted that his
wife had been sterilized. Blanks, 310 F.3d at
401. In short, neither the Supreme Court nor
this court has recognized the concept of a per
se disability under the ADA, no matter how
serious the impairment; the plaintiff still must
adduce evidence of an impairment that has ac-
tually and substantially limited the major life
activity on which he relies.
(...continued)
“to be substantially limited in performing manual
tasks, an individual must have an impairment that
prevents or severely restricts the individual from
doing activities that are of central importance to
most people’s daily lives”); id. at 196 (“‘Sub-
stantially’ in the phrase ‘substantially limits’ sug-
gests ‘considerable’ or ‘to a large degree.’”); Sut-
ton, 527 U.S. at 491 (same).
5 See, e.g., Blanks v. Southwestern Bell Com-
munications, Inc., 310 F.3d 398, 401 (5th Cir.
2002) (holding HIV not a substantial limit on ma-
jor life activity of reproduction); Dupre v. Charter
Behavioral Health Sys., Inc., 242 F.3d 610, 614
(5th Cir. 2001) (holding back injury not a sub-
stantial limit on major life activities of sitting,
standing, or working); Talk, 165 F.3d at 1025
(holding deformed leg not a substantial limit on
major life activities of walking or working); Still,
120 F.3d at 52 (holding monocular vision not a
substantial limit on major life activity of working);
(continued...)
(...continued)
Robinson v. Global Marine Drilling Co., 101 F.3d
35, 37 (5th Cir. 1996) (holding asbestosis not a
substantial limit on major life activity of breath-
ing); Dutcher, 53 F.3d at 727 (holding permanent
arm injury not a substantial limit on major life ac-
tivity of working).

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Waldrip does not begin to satisfy this ex-
acting standard. He just asserts his conclusion
that “pancreatitis is a serious condition that
substantially limits his major life function of
eating and digesting.” Waldrip’s doctor testi-
fied that, at most, he occasionally must miss a
few days of work when his chronic pancreatitis
flares up. This testimony does not demon-
strate that Waldrip’s chronic pancreatitis sub-
stantially limits his ability to eat; even if it did,
such temporary effects do not amount to a
substantial limit. Burch, 119 F.3d at 316.
Based on this evidence, no reasonable jury
could conclude that Waldrip’s chronic pancre-
atitis “substantially limits” his ability to eat or,
therefore, that he has a “disability” under
§ 12102(2)(A).
B.
Even if a plaintiff does not have an “impair-
ment that substantially limits one or more ma-
jor life activities” as defined by § 12102(2)(A),
he may claim the protection of the ADA if he
is “regarded as having such an impairment.”
42 U.S.C. § 12102(2)(C). A plaintiff has a
“regarded as” disability if he (1) has an impair-
ment that is not substantially limiting but
which the employer perceives as substantially
limiting, (2) has an impairment that is substan-
tially limiting only because of the attitudes of
others, or (3) has no impairment but is per-
ceived by the employer as having a substan-
tially limiting impairment. Gowesky v. Singing
River Hosp. Sys., 2003 U.S. App. LEXIS
2054, *7-*8 (5th Cir. Feb. 6, 2003) (citing
Bridges v. City of Bossier, 92 F.3d 329, 332
(5th Cir. 1996)); see also Sutton, 527 U.S. at
489. Waldrip must assert, if any, the first kind
of “regarded as” disability, because GE’s med-
ical staff learned of his chronic pancreatitis
years before they knew of his medication.
Waldrip has not satisfied his burden to cre-
ate a genuine issue of material fact that GE
misperceived his impairment as substantially
limiting. See Deas v. River West, L.P., 152
F.3d 471, 482 (5th Cir. 1998). To the con-
trary, he routinely took sick leave, without ob-
jection from GE, when his chronic pancreatitis
became especially painful. GE became wor-
ried only once it learned that Waldrip was po-
tentially taking central nervous system depres-
sants while operating heavy machinery.
Waldrip argues finally that GE paid him dis-
ability benefits and therefore must have regard-
ed him as disabled. Yet, GE paid those bene-
fits only after Waldrip alleges he was fired.
Thus, it could not have regarded him as dis-
abled on this basis before allegedly firing him.
Moreover, in his application for benefits, Wal-
drip denied being disabled.
The summary judgment is AFFIRMED.

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