Collins v. Saia Motor Freight

United States Court of Appeals
Fifth Circuit
F I L E D
May 16, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-30958
Summary Calendar
_______________
LEVY J. COLLINS, JR.,
Plaintiff-Appellant,
VERSUS
SAIA MOTOR FREIGHT LINES, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
m 6:03-CV-783-CMH-CMH
m 6:03-CV-1552-TLM-CMH
______________________________
Before DAVIS, SMITH, and
DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Levy Collins brought discrimination claims
against his former employer, Saia Motor
Freight Lines, Inc. (“Saia”), alleging, inter
alia, claims under the Age Discrimination in
Employment Act (“ADEA”), the Americans
with Disabilities Act (“ADA”) , and title VII of
the Civil Rights Act of 1964. Finding no
error, we affirm.
I.
* 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.

-- 1 of 6 --

2
Collins was a “city driver” for Saia, operat-
ing a large truck, delivering and picking up
freight from customers. According to the job
description as promulgated by Saia, Collins’s
position required him to load and unload
trailers weighing as much as 45,000 pounds
and to be able regularly to lift, without assis-
tance, (a) up to 100 pounds to waist height,
(b) up to 75 pounds to shoulder height, and (c)
up to 50 pounds overhead. Collins was bound
by Department of Transportation (“DOT”) and
Federal Motor Carrier Safety Act regulations.
On March 13, 2001, Collins was involved
in a non-employment related automobile
accident that left him unable to perform his
duties as a city driver. He was granted Family
Medical Leave Act leave and disability leave
that maxed out on June 12, 2001. Saia contin-
ued his leave.
On October 22, 2002, Collins’s treating
neurosurgeon, Dr. Appley, released him to
return to work without restriction. Saia then
sent Collins to its company physician, Dr.
Marsh, for his DOT physical, which Saia is
required to give to all employees who attempt
to return to work after having been injured.1
Marsh referred Collins to an orthopedist, Dr.
Gidman, for a second opinion.
After examination, Gidman opined that
Collins was physically able to return as a truck
driver, although Gidman saw problems with
the fact that heavy manual labor was involved.
He suggested that “if possible, [Collins] should
be accommodated at work with maximum
lifting of medium work level of 50 pounds
occasionally.” After reviewing Gidman’s
report, Collins’s supervisor informed him that
he could not return to work because Gidman
had imposed a 50-pound lifting limit, and the
job required that he be able to lift 100 pounds
regularly.
Because Collins’s absence continued be-
yond one year, Saia terminated him on March
15, 2002, pursuant to its Separability Policy.2
Collins filed a discrimination action, alleging
that he was illegally terminated on the basis of
race, age, and perceived disability.3 The dis-
trict court granted summary judgment to Saia.
II.
We review a summary judgment de novo
and are bound by the same standards as was
the district court. Chaplin v. NationsCredit
Corp., 307 F.3d 368, 371 (5th Cir. 2002).
Summary judgment is appropriate only where
“the pleadings, depositions, answers to inter-
rogatories, and admissions on file, together
1 Under 49 CFR § 391.45, that all DOT-certi-
fied drivers must be medically examined and cer-
tified in accordance with § 391.43 where their abil-
ity to perform their normal duties has been im-
paired by physical injury.
2 Saia’s Separability Policy provides that “[u]n-
less otherwise required by law, employees who are
unable to return to work within one (1) year of the
commencement of a period of absence will be
terminated. Intermittent returns to work for peri-
ods of less than sixty days will not be considered a
‘return to work’ and will not interrupt the running
of the 1-year period.”
3 Collins failed to brief his race discrimination
claim to the district court. Although that district
court discussed the claim “in the interest of com-
pleteness” in its order granting summary judgment,
we decline to consider it here, because we do not
consider evidence or arguments that were not pre-
sented to the district court. See Nissho-Iwai Am.
Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir.
1988); Little v. Liquid Air Corp., 37 F.3d 1069,
1071 n.1 (5th Cir. 1994) (en banc).

-- 2 of 6 --

3
with the affidavits, if any, “when viewed in the
light most favorable to the non-movant, ‘show
that there is no genuine issue as to any material
fact.’” TIG Ins. Co. v. Sedgwick James, 276
F.3d 754, 759 (5th Cir. 2002) (quoting Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 249-
50 (1986)). Once the moving party has dem-
onstrated that the non-moving party has no
evidence such that a reasonable jury could
reach a verdict in its favor, the non-moving
party must put-forth specific facts that demon-
strate a genuine factual issue for trial. Id.
III.
To establish a prima facie case of discrimi-
nation under the ADA, a plaintiff must estab-
lish that he is a qualified individual with a
disability and that a negative employment
action occurred because of his disability.
Sherrod v. Am. Airlines, Inc. 132 F.3d 1112,
1119 (5th Cir. 1998). Therefore, a plaintiff
must first establish that he has a “disability,”
which, under the ADA, encompasses (1) a
mental or physical impairment that substan-
tially limits one or more major life activities of
an individual; (2) a record of such impairment,
or (3) being regarded as having such an im-
pairment. Id. (citing 42 U.S.C. § 12102(2); 29
C.F.R. § 1630.2(g)).
Collins does not allege that he was actually
disabled, but rather contends that he has a
“disability” under the third subsection, 42
U.S.C. § 12102(2)(C)SSthat he was “regarded
as” disabled by Saia. We have previously set
forth the manner in which one might establish
such a claim:
One is regarded as having a substantially
limiting impairment if the individual (1) has
an impairment which is not substantially
limiting but which the employer perceives
as constituting a substantially limiting
impairment; (2) has an impairment which is
substantially limiting only because of the
attitudes of others toward such an impair-
ment; or (3) has no impairment at all but is
regarded by the employer as having a sub-
stantially limiting impairment.
Gowesky v. Singing River Hosp. Sys., 321
F.3d 503, 508 (5th Cir. 2003) (citing Bridges
v. City of Bossier, 92 F.3d 329, 332 (5th Cir.
1996)). Collins asserts that his situation falls
under the third prong, because he claims that
although he had recovered from his back
injury, Saia still considered him as suffering
under a physical impairment that constituted a
substantial limitation on his major life activity
of workingSSas a city truck driver or at other
positions at Saia, including line driver or
warehouse employee.
A plaintiff must show that the employer
perceived a disability that substantially limited
him in one or more major life activities. See
Sherrod, 132 F.3d at 1119. Where, as here,
the plaintiff alleges that working is the life
activity in which he is limited, he must dem-
onstrate that the perception of disability would
limit him from a broad class of jobs,4 defined
as “jobs utilizing similar training, knowledge,
skills or abilities, within that geographical area
4 Gowesky, 321 F.3d at 508 (“The EEOC reg-
ulations make plain that an inability to perform one
particular job, as opposed to a broad range of jobs,
does not constitute an impairment that substantially
limits one’s ability to work.”) (citing 29 C.F.R.
§ 1630.2(j)(3)(i)); Sherrod, 132 F.3d at 1120 (5th
Cir. 1998) (“Evidence of disqualification from a
single position or narrow range of jobs will not
support a finding that an individual is substantially
limited from the major life activity of working.”)
(citing Dutcher v. Ingalls Shipbuilding, 53 F.3d
723, 727 (5th Cir. 1995)).

-- 3 of 6 --

4
. . . .”5
Collins’s claim fails, because he has at most
demonstrated that his alleged perceived dis-
abilitySSan inability to lift over 50 pounds on
a regular basis as a result of his back in-
jurySSaffects only a “narrow range of jobs.”
He has identified only three specific types of
positions at Saia (all of which Saia claims has
a job requirement that the employee be able
regularly to lift at least 100 pounds), which is
insufficient to establish a broad range of em-
ployment.6
Collins may have presented enough evi-
dence to show that any perceived disability
prevented him from getting a job at Saia, but
that is insufficient to establish a claim.7 Be-
cause he has failed to produce sufficient
evidence that could demonstrate that Saia
regarded him as being substantially limited in
the life activity of working as the result of any
perceived disability, the district court properly
granted summary judgment on Collins’s ADA
claim.
IV.
Collins claims that his termination was age
discrimination. To maintain such a claim, a
plaintiff must bear the initial burden to make a
prima facie case of discrimination under the
burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Where only circumstantial evidence of dis-
crimination is available, a plaintiff must show
that he (1) was a member of the protected
class (over 40 years old); (2) was qualified for
the position; (3) was fired; and (4) was either
replaced by someone younger, was treated less
favorably than employees who were similarly
situated, or was otherwise discharged because
5 See Bridges, 92 F.3d at 334 (citing 29 C.F.R.
§ 1630.2(j)(3)(ii)(B)).
6 See, e.g., id. (holding that “a limitation that
prevented one from becoming a firefighterSSor
even a firefighter and associated municipal para-
medic or EMT backup firefighterSS. . . only affects
a ‘narrow range of jobs’”). Collins correctly notes
that we have previously held that an employer did
not regard a plaintiff as disabled for a broad class
of jobs where the employer attempted to return the
plaintiff to his prior position or other positions
within the same company. See Gowesky, 321 F.3d
at 508 (holding that employer did not regard
plaintiff as disabled where it repeatedly attempted
to return him to work); see also Sherrod, 132 F.3d
at 1121 (holding that employer did not regard
plaintiff as disabled from a broad class of posit-
ions, because employer tried to place plaintiff in
other positions for which she was not deemed
disqualified because of her back condition). Al-
though Saia did not attempt to place Collins in his
prior position or another position, such a finding is
not necessary to defeat a claim based on an allega-
tion that a plaintiff was discriminated against
because of a perceived disability. In Bridges, 92
F.3d at 331, the employer took an adverse employ-
ment action against the plaintiff because of a
perceived disability and made no effort to place
him in another position, yet we held that plaintiff’s
(continued...)
6(...continued)
claim failed as a matter of law because he pro-
duced no evidence that any perceived disability
barred him from a “broad class” of jobs, as is the
case here.
7 We have previously rejected a proposition that
preemption from employment in one’s chosen field
establishes a per se substantial limitation on work-
ing. See Bridges, 92 F.3d at 335. If such a broad
prohibition is not a per se substantial limitation on
working, we cannot say that preemption from
employment for one’s chosen employer is.

-- 4 of 6 --

5
of his age.8
If established, a prima facie case raises an
inference of discrimination, and the burden of
production shifts to the employer to proffer a
“legitimate nondiscriminatory reason” for its
adverse employment action. Sandstad, 309
F.3d at 897. If it meets this burden, the pre-
sumption of discrimination is dissipated, and
the burden returns to the plaintiff to prove
discrimination.9 To survive summary judg-
ment, a plaintiff must offer “sufficient evidence
to create a genuine issue of material fact either
(1) that the employer’s reason is not true, but
is instead a pretext for discrimination (pretext
alternative); or (2) that the reason, although
true, is only one of the reasons for its conduct,
and another “motivating factor” is the plain-
tiff’s protected characteristic (mixed-motive[s]
alternative).” Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 312 (5th Cir. 2004) (internal ci-
tations omitted). “If a plaintiff demonstrates
that age was a motivating factor in the empl-
oyment decision, then it falls to the defendant
to prove that the same adverse action would
have been made regardless of discriminatory
animus.” Id.
Saia does not contest that Collins was a
member of the protected age group. Even if
we assume arguendo that Collins otherwise
properly stated a prima facie case of inten-
tional age discrimination, Saia adequately
proffered a nondiscriminatory reason for firing
himSSthe violation of its Separability Pol-
icySSsuch that the burden was shifted to Col-
lins to produce evidence that the enforcement
of the policy was either a pretext, or merely
one motive in his termination, accompanying
another motive of intentional age discrimina-
tion.
Collins attempts to meet his burden of
showing pretext through the affidavit of Greg
Slade, Saia’s Human Resources Manager, who
indicated that two other Saia employees,
Hollier and Dupuis, believed to be under 40
years old, were allowed to return to work after
receiving doctors’ releases from their DOT
physicals. On the other hand, despite the fact
that Collins received releases from his treating
physician and his DOT physical, he was pre-
vented from returning to work, which ulti-
mately resulted in his violation of the Separa-
bility Policy.
This evidence is not probative of pretext,
however, because Collins has not produced
sufficient evidence that would demonstrate
that his circumstances were sufficiently similar
to those of Hollier and Dupuy.10 Although
affidavit testimony indicates that Hollier and
Dupuis were injured in off-the-job accidents,
received physician releases in their DOT
physicals and were allowed to return to their
jobs at Saia, there was no indication that ei-
ther’s physician release included a notice that
8 See West v. Nabors Drilling USA, Inc., 330
F.3d 379, 384 (5th Cir. 2003) (citing Brown v.
CSC Logic, Inc., 82 F.3d 651, 654 (5th Cir.
1996)); see also Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 897 (5th Cir. 2002).
9 Sandstad, 309 F.3d at 897 (citing St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 511-12
(1993)).
10 See Wyvill v. United Cos. Life. Ins. Co., 212
F.3d 298, 304-05 (5th Cir. 2000) (requiring plaint-
iff, to demonstrate pretext, to show that employer
treated others differently in “nearly identical cir-
cumstances”); Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999) (“We require that the quan-
tity and quality of the comparator’s misconduct be
nearly identical to prevent courts from second-
guessing employers’ reasonable decisions and
confusing apples with oranges.”).

-- 5 of 6 --

6
he should be accommodated in his job by mod-
ifying physical requirements of his position, as
was the case with Collins.
Because Collins did not meet his burden to
produce evidence from which a factfinder
could reasonably find that Saia’s proffered
reason for terminating his employment was
pretext for age discrimination, or that age
discrimination was an accompanying mixed
motive, the district court appropriately granted
summary judgment.
AFFIRMED.

-- 6 of 6 --