Moreno v. Pepsi-Cola Metro

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-50186
_______________
JOHNNY MORENO,
Plaintiff-Appellee,
VERSUS
PEPSI-COLA METROPOLITAN BOTTLING COMPANY, INC.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________
March 28, 2002
Before REAVLEY, SMITH, and DENNIS,
Circuit Judges,
JERRY E. SMITH, Circuit Judge:*
Johnny Moreno appeals a summary judg-
ment entered in favor of Pepsi-Cola Metropol-
itan Bottling Company, Inc. (“Pepsi”), in this
title VII and Americans with Disabilities Act
(“ADA”) case. We affirm.
I.
Moreno, who is hispanic, had worked for
Pepsi since June 1986 as a field service me-
chanic in the marketing equipment manage-
ment department. His duties involved install-
ing and servicing cold beverage equipment in
the Kileen-Waco-Bryan area of Texas. By
1992, Moreno had attained the position of
master mechanic and was working under the
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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direct supervision of Billy Swindell, the mar-
keting equipment manager.
In June 1997, Moreno inured his right knee
while installing a piece of equipment. He re-
turned to work after this incident but operated
under a restriction to lift no more than thirty
pounds. In September, he had arthroscopic
knee surgery and subsequently returned to
work under the same weight restriction. For a
few weeks following the operation, he per-
formed administrative duties, then received
full-duty clearance and returned to regular
work without restriction. In May 1998, he
sprained his ankle while stepping out of a com-
pany vehicle; this injury did not limit his ability
to perform his job.
In May 1998, Pepsi terminated Moreno,
citing his insubordination for refusing to install
an ice machine. The parties dispute Moreno’s
disciplinary track record before this incident.
Pepsi points to six acts of misconduct that,
coupled with the insubordination, justified the
discharge: A customer complaint relating to
Moreno’s failure to maintain the customer’s
equipment, the swapping of on-call duty, fail-
ure to follow the company call-in procedure
for planned absence, a reprimand for sleeping
during company time, a charge of smoking in
the warehouse, and a three-day suspension for
poor performance in the installation of a dis-
penser.1
Moreno responds to only some of these
allegations of misconduct. He admits to the
violation of the call-swapping procedure but
notes that the man he swapped with (a white
co-worker) was only reprimanded. As for the
failure to follow proper absence procedures,
Moreno contends he was never in violation of
the policy, because Pepsi never provided him
a copy of any written policy, and when asked
to do so in discovery, produced a handbook
from a different office. Moreno disputes the
sleeping on the job allegation, claiming the dis-
ciplinary action report on the incident does not
even mention he was asleep. Finally, he does
not deny smoking in the company warehouse
but notes there is a white employee who does,
and notes the presence of ashtrays in the
building. Notably, he does not respond to the
allegations he was reprimanded and suspended
for poor job performance while dealing di-
rectly with customers.
The final incident precipitating Moreno’s
termination involved Swindell’s request that
Moreno install an ice machine for a customer.
Again, the parties dispute the facts. Moreno
avers he was asked to install a 700-pound ma-
chine himself, but Pepsi claims Moreno was in-
formed that there were a technician and a
truck available to help with the installation.
When Swindell discovered the machine was
not installed, he called Moreno, who informed
him he had swapped call with another employ-
ee. Pepsi notes this was unauthorized and was
not logged in at the dispatch office. The par-
ties do agree that after Moreno informed
Swindell of his swapped call status, he turned
off his pager and phone, leaving Swindell with
no way to contact him, and thus no way to co-
ordinate the installation on time.
1 Pepsi also notes an anonymous caller who
claimed Moreno was working his own ice machine
installation and repair business on company time.
Moreno correctly responds that this accusation is
hearsay and is not competent summary judgment
evidence. Fowler v. Smith, 68 F.3d 124, 126 (5th
Cir. 1995).

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II.
Moreno filed a charge of discrimination
with the Equal Employment Opportunity
Commission (“EEOC”) in November 1998 and
amended it in January 1999. He claims to
have amended the charge once again, in May
1999, via a letter sent to the Texas Commis-
sion on Human Rights. This letter is not in the
EEOC file. The sole basis of his claim of dis-
crimination in these documents was disability.
The EEOC issued a right to sue letter in
July 1999. Moreno claims to have sent a new
charge to the EEOC in September 1999 alleg-
ing he was terminated also because of national
origin. Moreno sued in September 1999.
III.
Moreno offers two legal theories to support
his argument that Pepsi discharged him un-
lawfully: a title VII claim based on national
origin discrimination and an ADA claim based
on limitations stemming from his knee injury.
The district court dismissed both claims on
summary judgment. Accordingly, we review
that judgment de novo. Walton v. Alexander,
44 F.3d 1297, 1301 (5th Cir. 1995) (en banc).
Summary judgment is proper where “there
is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a
matter of law.” FED. R. CIV. P. 56(c). All in-
ferences from the record must be construed in
the light most favorable to the non-movant.
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587-88 (1986); Walker
v. Thompson, 214 F.3d 615, 624 (5th Cir.
2000). For a plaintiff to survive summary
judgment, there must be evidence in the record
sufficient to sustain a finding in favor of the
non-movant. Little v. Liquid Air Corp., 37
F.3d 109, 1075 (5th Cir. 1994) (en banc).
IV.
The ADA bars discrimination in employ-
ment against those with a disability who are
otherwise qualified for a job. 42 U.S.C.
§ 12112(a). To establish a prima facie case, a
plaintiff must (1) have a disability, (2) be
otherwise qualified, and (3) be subject to ad-
verse employment action because of the dis-
ability. Ivy v. Jones, 192 F.3d 514, 515 (5th
Cir. 1999).
“Disability” as used in the ADA means “(A)
a physical or mental impairment that substan-
tially limits one or more of the major life
activities of such individual; (B) a record of
such an impairment; or (C) being regarded as
having such an impairment.” 42 U.S.C.
§ 12102(2). An “impairment” includes almost
all disorders or conditions affecting one of the
body systems. 29 C.F.R. § 1630.2(h)(1).2 A
“major life activity” is usually defined by re-
ference to the EEOC guidelines implementing
the ADA. These include “caring for oneself,
performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and
working;” also “sitting, standing, lifting, [and]
reaching.” 29 C.F.R. 1630.2(i); App.
§ 1630.2(i).
2 More specifically, an impairment is
Any physiological disorder, or
condition, cosmetic disfigurement,
or anatomical loss affecting one
or more of the following body
systems: neurological, musculo-
skeletal, special sense organs, re-
spiratory (including speech
o r g a n s ) , c a r d i o v a s c u l a r ,
r e p r o d u c t i v e , d i g e s t i v e ,
genito-urinary, hemic and lym-
phatic, skin, and endocrine.
29 C.F.R. 1630.2(h)(1).

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To be “substantially limited,” a plaintiff
must show an inability to perform one of the
listed life activities up to the standards of an
average person.3 The question whether a
plaintiff is disabled for purposes of the ADA is
a case-specific determination. Toyota Motor
Mfg., Inc. v. Williams, 122 S. Ct. 681 (2002).
In his brief, liberally construed, Moreno
claims he is either disabled or regarded as such
in that he is substantially limited in the major
life activities of lifting, walking, climbing, and
working. We address these in turn.
A.
Moreno avers he is not able to lift in the
manner of an average person and thus is
disabled under the definitions laid out above.
Moreno’s statements as to specific limitations
on his ability to lift are scant. The only
concrete examples he has offered involve his
ability to lift at least thirty pounds and his
inability to lift 700 pounds (the weight of the
ice machine Swindell allegedly required him to
install solo). The ADA does not posit Atlas as
the average person; Moreno’s inability to lift
more than a quarter ton has no relevance to
the disability question. Even assuming More-
no could lift no more than thirty pounds, this
limitation would not constitute a disability
3 The regulation reads, in its entirety:
The term substantially limits
means:
(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 ac-
tivity as compared to the
condition, manner, or duration
under which the average person in
the general population can
perform that same major life
activity.
(2) The following factors should
be considered in determining
whether an individual is
substantially limited in a major
life activity:
(i) The nature and severity of the
impairment;
(ii) The duration or expected
duration of the impairment; and
(iii) The permanent or long term
impact, or the expected permanent
or long term impact of or
resulting from the impairment.
(3) With respect to the major life
activity of workingSS
(continued...)
3(...continued)
(i) The term substantially limits
means significantly restricted in
the ability 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 constitute a substantial
limitation in the major life activity
of working.
29 C.F.R. § 1630.2(j)(1),(2).

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within the meaning of the ADA.4 Moreno is
not disabled because of his limitations in the
major life activity of lifting.
B.
Moreno’s argument regarding the major life
activity of walking amounts to his testimony
that his needs to be more careful and cautious
when walking and cannot walk as far as the
average person his age. Minor deviations from
the average person’s ability to walk do not rise
to the level of substantial limitations on one’s
ability to partake of this major life activity.
Talk v. Delta Airlines, Inc., 165 F.3d 1021,
1025 (5th Cir. 1999) (“It is clear, however,
that moderate difficulty experienced while
walking does not rise to the level of a
disability.”). Moreno is not disabled because
of his limitations in the major life activity of
walking.
C.
Moreno also argues his knee injury renders
him disabled in that he is unable to engage in
the major life activity of climbing to the same
degree as is an average person. Moreno does
not offer any more definite explanation of how
he is limited in climbing. If he means merely
climbing that is attendant to walking, his ar-
gument is foreclosed by Talk. If he means
climbing in a more vigorous sense, that
argument has also been rejected by this circuit.
Rogers v. Int’l Marine Terminals, Inc., 87
F.3d 755, 758 n.2 (5th Cir. 1996) (concluding
that climbing is not a major life activity). Mo-
reno is not disabled because of his limitations
in the activity of climbing.
D.
Finally, we turn to the major life activity of
working, but only after rejecting all other pos-
sible major life activities. App. 29 C.F.R.
§ 1630.2(j); Dutcher v. Ingalls Shipbuilding,
53 F.3d 723, 726 n.10 (5th Cir. 1995). To be
substantially limited in the major life activity of
working, a plaintiff must be precluded from a
“class of jobs” or “a broad range of jobs.” 29
C.F.R. § 1630.2(j)(3)(i); Sutton, 527 U.S. 471,
491 (1999).
Moreno has not offered any evidence he is
unable to perform either a class or a broad
range of jobs. Indeed, the summary judgment
evidence reveals he is currently employed as a
deliveryman for an auto parts wholesaler and
also operates his own ice machine vending
business. Moreno is not disabled because of
his limitations in the major life activity of
working.
V.
Moreno argues that Pepsi “regarded” him
as disabled. To be regarded as disabled for
purposes of the ADA, the employer must be-
lieve the employee either
(1) Has a physical or mental impairment
that does not substantially limit major
life activities but is treated by a covered
entity as constituting such limitation;
(2) Has a physical or mental impairment
that substantially limits major life
activities only as a result of the attitudes
of others toward such impairment; [or]
(3) Has none of the impairments defined
in paragraphs (h) (1) or (2) of this
section but is treated by a covered entity
as having a substantially limiting
impairment.
29 C.F.R. § 1630.2(l). Thus, for the employee
4 Ray v. Glidden Co., 85 F.3d 227, 229 (5th
Cir. 1996) (ho lding that inability regularly to
lift more than ten pounds did not substantially
limit the major life activity of lifting).

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to be “regarded as” disabled, the employer
must have a perception of the employee’s dis-
ability, that, if true, would constitute a
disability. Murphy v. United Parcel Serv., 527
U.S. 516, 521-22 (1999); Dupre v. Charter
Behavioral Health Sys., Inc., 242 F.3d 610,
616 (5th Cir. 2001).
Moreno raises this “regarded as” argument
for the first time on appeal. We routinely treat
as waived those arguments advanced for the
first time on appeal. Lackey v. Johnson, 116
F.3d 149, 152 (5th Cir. 1997); Hernandez v.
Hill Country Tel. Coop. Inc., 849 F.2d 139,
142 (5th Cir. 1988). Although we forego this
waiver in extraordinary cases, Moreno does
not present such a case. N. Alamo Water
Supply Corp. v. City of San Juan, Tex., 90
F.3d 910, 916 (5th Cir.1996).
Even were we to consider Moreno’s newly-
raised argument, we would be compelled to
reject it. His “regarded as” argument stems
almost entirely from his subjective belief that
Pepsi thought he had an ADA disability. He
supports this supposition by noting that Pepsi
participated in a disability proceeding before
the Texas Worker’s Compensation
Commission. Acknowledging that Moreno
may have been impaired for purposes of
worker’s compensation does not mean he
necessarily was disabled for purposes of the
ADA.5
The summary judgment evidence shows
that Pepsi allowed Moreno to work at a desk
job and then returned him to full duty status a
few weeks after his knee surgery. That Swin-
dell asked Moreno to help him install the ice
machine cuts strongly against any implication
that Pepsi “regarded” Moreno as disabled.
Moreno is not disabled within the meaning of
the ADA, because his employer did not regard
him as having any impairment that rises to the
level of a disability under the ADA.
VI.
Moreno challenges his discharge on the
ground of national origin discrimination.6 In
an EEOC “deferral state,” a charge of
discrimination must be filed with the EEOC
not more than 300 days after the alleged
adverse employment action.7 42 U.S.C. §
2000e-5(e)(1); Byers v. Dallas Morning News,
Inc., 209 F.3d 419, 424 (5th Cir. 2000).
Moreno was terminated by Pepsi on May 28,
1998; he filed a charge of discrimination on
September 7, 1999, 467 days after the
discharge.
Moreno’s national origin claim is thus
barred unless he can show his initial charge of
disability discrimination, filed on November
23, 1998, triggered his national origin claim.
Moreno notes that he completed the blank
next to race with the appropriate designation
(“Hispanic”) on this November 23 charge. His
initial charge and his subsequent amendment
on January 11, 1999, make no mention of na-
tional origin discrimination, however.
Moreno relies entirely on Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 464 (5th
Cir. 1970), which held that failure to mark the
appropriate box on the EEOC charge form
5 Cf. Cleveland v. Policy Mgmt. Sys. Corp.,
526 U.S. 795 (1999) (holding that disability for
purposes of Social Security benefits is not
necessarily the same as disability for purposes of
the ADA).
6 42 U.S.C. § 2000e-2(a)(1).
7 Texas is a deferral state. See Huckaby v.
Moore, 142 F.3d 233, 238 (5th Cir. 1998).

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does not preclude a suit premised on that
theory of discrimination. Sanchez further held
that a plaintiff’s out-of-time amendment to an
initial charge could add an additional theory of
discrimination if the amendment contained
“mere clarification and amplification of the
original charge.” Id. at 465. Where the out-
of-time amendment alleges a new theory of
discrimination and adds new facts to support
that charge, the new theory of discrimination
is time-barred. Hornsby v. Conoco, Inc., 777
F.2d 243, 247 (5th Cir. 1985). In other
words, the new theory of discrimination must
rely on the facts alleged in the initial charge.
Id.
Moreno’s claim of national origin
discrimination fails, because it is more
analogous to Hornsby than to Sanchez. His
amended EEOC charge of national origin
discrimination alleges facts that have no
predicate in his initial charge. The factual
narrative in the initial charge describes his
termination as stemming only from a disability
or a perceived disability.
VII.
Moreno contends that the findings of the
Texas Workforce Commission awarding him
benefits should have res judicata effect in this
federal lawsuit. This issue was not presented
to the district court and is thereby waived.
Hernandez, 849 F.2d at 142.
Were we to consider this argument, it
would be foreclosed by precedent. We give a
state agency the same deference it would
receive in state court. Univ. of Tenn. v. Elli-
ott, 478 U.S. 788, 799 (1986). The Texas
Workforce Commission’s decision is entitled
to no deference in Texas state courts. TEX.
LAB. CODE ANN. § 213.007 (Vernon 2001).8
Moreno’s argument is without merit.
AFFIRMED.
8 The statute reads,
A finding of fact, conclusion of
law, judgment, or final order
made under this subtitle is not
binding and may not be used as
evidence in an action or
proceeding, other than an action
or proceeding brought under this
subtitle, even if the action or
proceeding is between the same or
related parties or involves the
same facts.
TEX. LAB. CODE ANN. § 213.007 (Vernon
2001).

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