Deas v. River West, L.P.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30154

ALLISON DEAS,

Plaintiff-Appellant,

Cross-Appellee,

versus

RIVER WEST, L.P.; ET AL.,

Defendants,

ALTERNATIVE ADDICTION TREATMENT CONCEPTS,

INC.; STROTHER P. LINDSEY-DIXON

Defendants-Appellees,

RIVER WEST, L.P.,

Defendant-Appellee-

Cross-Appellant.

Appeals from the United States District Court for the

Middle District of Louisiana

September 3, 1998

Before POLITZ, Chief Judge, GARWOOD and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Allison Deas (Deas) appeals the grant of

summary judgment in favor of defendants-appellees, contending that

the court below erred in concluding that she was not disabled under

the Americans with Disabilities Act (ADA). 42 U.S.C. § 12101 et

seq. We affirm.

Facts and Proceedings Below

Responding to a classified advertisement announcing job

opportunities associated with the planned opening of a pilot

substance abuse program by Alternative Addiction Treatment Concepts

(AATC),1 Deas applied for employment as an "Addiction Technician."

During the application process, Deas filled out a health history

questionnaire on which she disclosed that she had suffered from

"epilepsy (fits, seizures)" in the past.2 She was subsequently

1

This case involves two separate business entities, both of

which were named as defendants by Deas in her suit. Alternative

Addiction Treatment Concepts, Inc. (AATC), a Louisiana corporation,

gained permission of the Louisiana Department of Health and

Hospitals to institute a pilot substance abuse program. River

West, L.P., a Delaware limited partnership, operates a hospital

facility (River West Medical Center) in Plaquemine, Louisiana.

AATC and River West entered into a contractual agreement providing

for the development of a substance abuse program to be housed at

the River West Medical Center. In the court below, Deas argued

that both AATC and River West were her "employers" for purposes of

liability under the ADA. The magistrate judge ruled that both

entities qualified as employers, and River West has cross-appealed

this ruling. Because we find that Deas was not "disabled" within

the meaning of the ADA, the cross-appeal is moot, and we do not

address the employment issues argued in the court below. For

simplicity sake, we assume arguendo that both AATC and River West

qualified as Deas’ employers under the ADA, and we refer to these

employers collectively simply as AATC.

2

Initially Deas alleged that the questionnaire violated the

ADA’s prohibition on preemployment medical inquiries. See 42

U.S.C. § 12112(d). This issue, however, has not been briefed on

appeal and is not before this Court.

2

interviewed by Dr. Strother P. Lindsey-Dixon (Dr. Dixon), medical

director of the substance abuse program, and approved for hire by

Dr. Dixon on July 13, 1993.

Deas commenced employment on July 29, 1993.3 On August 9,

1993, during a staff lecture being conducted by Dr. Dixon, Deas

appeared to suffer a petit mal or "absence" seizure during which

she became verbally unresponsive and seemed to lose awareness of

her surroundings for a brief time.4 The seizure lasted only a few

seconds, after which Dr. Dixon asked Deas if she was "all right."

Deas responded that she was, and Dr. Dixon resumed the lecture with

Deas in attendance.

A few hours later, Dr. Dixon was approached by another AATC

employee, Lane Douglas (Douglas), who told her that he had seen

Deas have a seizure earlier in the day. According to Dr. Dixon,

Douglas told her that he had been conversing with Deas when she

suddenly appeared to lose all awareness of her surroundings and was

verbally uncommunicative for several minutes. Upon recovering,

3

Because the substance abuse program was not yet open, Deas’

job initially consisted solely of participating in the employee

orientation program.

4

In her deposition, Dr. Dixon described the episode as follows:

"I was lecturing and I saw [Deas’] head turn around very

automated and it stayed, and her face was blank. And I

called her name, and she did not move. . . . I continued

to lecture and I continued to watch her; and after

several seconds her head came back around, but she had a

blank look on her face. And I called her name, and I

asked her was she all right. And she said she was."

3

Deas apparently seemed to be unaware that she had just suffered a

seizure. When Douglas asked her about it, Deas responded that she

had been diagnosed as having a seizure disorder, but did not

acknowledge that she had just experienced one.

After learning that Deas had suffered two seizures in a single

day, Dr. Dixon concluded that Deas’ seizures were not well

controlled and became concerned that Deas would not be able to

safely and adequately fulfill her duties as an addiction

technician. Soon thereafter, Dr. Dixon determined that Deas could

not perform the functions of an addiction technician and

accordingly made the decision to discharge her. On August 13,

1993, Dr. Dixon and Peggy Miller, River West’s human resources

director, met with Deas to inform her that she was being discharged

from employment due to her seizures. According to Deas, she was

told in her exit interview that she was being fired because of her

seizures and that Miller and Dr. Dixon stated that they had "both

looked for another job somewhere in the hospital that could

accommodate her, but that they were unable to find one, and that

therefore [she] was fired from the hospital altogether."

Deas commenced suit in Louisiana state court alleging, inter

alia, that her discharge violated the ADA. Defendants subsequently

removed the case to the United States District Court for the Middle

District of Louisiana, where, upon consent of the parties, the case

was assigned to a magistrate judge under 28 U.S.C. § 636(c).

4

Ruling on cross-motions for summary judgment, the magistrate judge

granted summary judgment for defendants on the basis that Deas was

not disabled under the ADA.5 Deas brings this appeal.

Discussion

We review a grant of summary judgment applying the same

standard as the court below. Dutcher v. Ingalls Shipbuilding, 53

F.3d 723, 725 (5th Cir. 1995). Summary judgment is proper when no

issue of material fact exists and the moving party is entitled to

judgment as a matter of law. Questions of fact are viewed in the

light most favorable to the nonmovant and questions of law are

reviewed de novo. Id.

Deas has never contended, here or below, that she is

"actually" disabled. Rather, the essence of her claim, both in

this Court and in the court below, is that her seizures do not

substantially limit any major life activity, but that she was

nevertheless regarded as disabled and discharged by Dr. Dixon on

the basis of this misperception. Accordingly, Deas contends that

5

The magistrate judge also ruled that both River West and AATC

were Deas’ "employers" under the ADA. As noted above, River West

has filed a cross-appeal challenging this conclusion. Because we

hold that Deas is not disabled within the meaning of the ADA, the

issue is moot and we do not address it.

5

she qualifies for the protections of the ADA under the "regarded

as" prong of the statute’s definition of "disability."6

Under the ADA, an individual may qualify as "disabled" if he

or she is "regarded as" having an impairment that substantially

limits one or more major life activities. Bridges v. City of

Bossier, 92 F.3d 329, 332 (5th Cir. 1996). In its implementing

regulations, the Equal Opportunity Employment Commission (EEOC)

defines three general situations or contexts in which a plaintiff

qualifies for the ADA’s protection under the "regarded as" prong.7

See Dutcher, 53 F.3d at 728 & n.19. We have summarized the EEOC

guidance on this issue as follows:

"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

6

The ADA defines "disability" in the alternative, providing

that

"[t]he term ‘disability’ means, with respect to an

individual--

(A) a physical or mental impairment that

substantially 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).

For lack of more eloquent terminology, we refer to subsection (C)

as the "regarded as" prong of the definition, and we refer to a

claim of disability pursuant to subsection (A) as an assertion of

"actual" disability.

7

See 29 C.F.R. § 1630.2(l)(1)-(3).

6

such an impairment; or (3) has no impairment at all but

is regarded by the employer as having a substantially

limiting impairment." Bridges, 92 F.3d at 332.

As it is uncontested that Deas’ seizures constitute an

"impairment,"8 this case involves the first of the three scenarios

outlined above (i.e., where an individual has an impairment that is

erroneously perceived by the employer as a substantially limiting

impairment). Because it is also uncontested that Dr. Dixon was the

individual responsible for deciding to terminate Deas and that she

did so "because of" the seizures, the question on this appeal boils

down to whether Deas produced sufficient evidence for a reasonable

trier of fact to find that Dr. Dixon perceived her seizures as

constituting a substantially limiting impairment.9 In other words,

8

The ADA does not define the term "impairment," but the EEOC

regulations provide that "physical or mental impairment" means:

“(1) Any physiological disorder, or condition, cosmetic

disfigurement, or anatomical loss affecting one or more

of the following body systems: neurological,

musculoskeletal, special sense organs, respiratory

(including speech organs), cardiovascular, reproductive,

digestive, genito-urinary, hemic and lymphatic, skin, and

endocrine; or

(2) Any mental or psychological disorder, such as mental

retardation, organic brain syndrome, emotional or mental

illness, and specific learning disabilities.” 29 C.F.R.

§ 1630.2(h)(1) & (2).

9

Under the "regarded as" prong, the disability status of the

plaintiff turns not on the plaintiff’s physical condition, but

rather on how the plaintiff was perceived and treated by those

individuals alleged to have taken discriminatory action. In the

case at bar, the discriminatory act alleged on appeal is Deas’

discharge from employment. The summary judgment evidence indicates

that Dr. Dixon, acting in her capacity as the medical director of

the substance abuse unit, made the decision to discharge Deas.

7

to have made a prima facie showing of disability, Deas must have

produced sufficient evidence for a reasonable trier of fact to

conclude that Dr. Dixon perceived her as having an "impairment" and

that this impairment, if it existed as perceived by Dr. Dixon,

would have substantially limited one or more of Deas’ major life

activities.10

Considered in the light most favorable to Deas, the summary

judgment record clearly contains sufficient evidence to establish

that Dr. Dixon regarded Deas as having an impairment.11 The more

Thus, the opinions or perceptions of other individuals involved are

of little legal significance to Deas’ claim. Dr. Dixon is the

relevant decisionmaker in the case at bar, and our analysis focuses

on how she perceived, and acted toward, Deas. See Runnebaum v.

NationsBank of Maryland, 123 F.3d 156, 172 (4th Cir. 1997)

(analysis of "regarded as" claim "focuses on the reactions and

perceptions of the relevant decisionmakers working with [the

plaintiff]").

10

See, e.g., Deane v. Pocono Med. Ctr., 142 F.3d 138, 143 (3d

Cir. 1998) (en banc) (analysis of a "regarded as" claim requires

the court to determine whether defendant regarded plaintiff as

having an impairment and whether the impairment, as perceived by

the defendant, would have substantially limited one or more of

plaintiff’s major life activities); cf. Francis v. City of Meriden,

129 F.3d 281, 285 (2d Cir. 1997) ("[P]laintiff must allege that the

employer believed, however erroneously, that the plaintiff suffered

from an ‘impairment’ that, if it truly existed, would be covered

under the [ADA] and that the employer discriminated against the

plaintiff on that basis.").

11

The term "impairment" has consistently been defined to include

physiological disorders affecting neurological body functions,

specifically including epilepsy. Moreover, the EEOC’s

"Interpretive Guidance to Title I of the Americans with

Disabilities Act," (hereinafter "Interpretive Guidance"), which is

included as an appendix to the ADA implementing regulations, treats

epilepsy as an impairment per se. 29 C.F.R. Pt. 1630.2(h), App.

(1997).

8

difficult question is whether Deas produced summary judgment

evidence sufficient for a reasonable trier of fact to find that Dr.

Dixon regarded Deas’ seizures as substantially limiting a major

life activity. Deas advances three separate arguments in this

respect. We review each in turn.

I. Seizures as a Disability Per Se

In her first argument on appeal, Deas urges this Court to hold

that "seizures" constitute a disability per se and, consequently,

that because she was regarded as suffering from seizures she was

automatically perceived as suffering from a substantially limiting

impairment.12 Although she cites several cases as supporting her

Although the summary judgment record does not reflect that Dr.

Dixon thought Deas suffered from epilepsy, Dr. Dixon’s belief that

Deas’ seizures were not isolated incidents and her decision to

discharge Deas without further inquiry into Deas’ medical condition

strongly indicate that Dr. Dixon perceived Deas’ seizures as

constituting a neurological disorder sufficient to qualify as an

impairment.

12

We note that there is some logical incongruity in Deas’

argument. If seizures constitute a disability per se, then Deas

would qualify as "disabled" under the first prong of the ADA

definition and there is no need to resort to the "regarded as"

prong. We also note that Deas’ deposition testimony plainly

reflects that she does not consider her seizures to be

substantially limiting. She testified that they do not interfere

with her life in any way, except for limiting her in a few

recreational activities. In light of Deas’ testimony that her

seizures do not pose any significant limitation whatsoever, and in

the absence of any medical evidence to the contrary, we find the

argument that seizures are invariably and inherently disabling is

both contradicted by Deas’ sworn testimony in this case and

unsupported by any evidence in the record before us. In addition,

Deas has provided no evidence of any severe societal prejudice

against individuals who suffer from "seizures."

9

position, Deas relies primarily on Martinson v. Kinney Shoe Corp.,

104 F.3d 683 (4th Cir. 1997), asserting that in that case the

"Fourth Circuit held that seizures are a disability per se under

the ADA." Deas finds support for her position in a passage from

the opinion which reads: "To fire for seizures is to fire for

disability. Seizures are ‘a mental or physical impairment that

substantially limits one or more of [Martinson’s] major life

activities,’ i.e., a disability." Martinson, 104 F.3d at 686.

Although this language would appear to support Deas’ position,

when considered in context it becomes clear that Deas has misread

the court’s holding in Martinson. As is specifically noted in that

opinion, the issue of the plaintiff’s disability status was not

before the court because the district court had assumed, for

purposes of its ruling, that the plaintiff was disabled, and the

defendant-appellee did not challenge this conclusion on appeal.13

As it was not a contested issue, the court on appeal did not

address whether the plaintiff was disabled or whether seizures were

a disability per se. The quoted language appears in a section of

the opinion rejecting the district court’s distinction between

discharging an employee based on disability and discharging an

employee due to the "physical manifestations" of that disability.

13

As stated by the court, "[f]or purposes of summary judgment,

the district court concluded that Martinson had a disability and

thus the first prong of [his prima facie case] had been satisfied,

a conclusion that [defendant-appellee] Kinney does not contest at

this stage." Martinson, 104 F.3d at 686.

10

Thus, Martinson neither discusses nor supports the proposition that

seizures constitute a disability per se.14

The other cases relied on by Deas are equally unavailing. As

the magistrate judge aptly concluded: "the cases cited by [Deas]

are unpersuasive because they contain little or no analysis, assume

for purposes of the ruling that epilepsy or seizures are disabling

impairments, or merely rely upon cases that [similarly] have not

analyzed the issue." In sum, none of the cases cited by Deas

provides a persuasive rationale for recognizing either "seizures"

or epilepsy as a disability per se.

Additionally, Deas makes no attempt to address the numerous

decisions of this and other courts declining to recognize various

impairments as disabilities per se and emphasizing the importance

14

Deas appears to have simply misread the holding of Martinson.

An explanatory footnote which accompanies the language relied on by

Deas states that: "Both a disease and its physical manifestations

can constitute disabilities." Martinson, 104 F.3d at 686 n.2.

This clarification was needed because the district court there had

distinguished between the "general disability" of epilepsy and its

"specific attributes" (i.e., seizures). The district court had

reasoned that because the plaintiff had been fired due to the

symptoms of the disability, rather than the disability itself, the

plaintiff had failed to prove discrimination based on disability.

Id. at 686. The Fourth Circuit corrected this error, clarifying

that there is usually no legal distinction between discharging a

disabled employee because of a disability and discharging an

employee based on the characteristic or defining symptoms of that

disability. Thus in Martinson, discharging the plaintiff based on

his seizures was no different from discharging him due to his

epilepsy. As it was uncontested that the plaintiff’s epilepsy

constituted a disability, the court concluded that, with respect to

that plaintiff, "[t]o fire for seizures is to fire for a

disability." Id.

11

of, and rationale behind, making disability determinations on an

individualized basis. See Matczak v. Frankford Candy and Chocolate

Co., 136 F.3d 933, 938 (3d Cir. 1997) ("Some individuals suffer

from relatively mild forms of epilepsy which cause nothing more

than ‘minor isolated muscle jerks’--so we cannot and do not

conclude that all epileptics are substantially limited by the

impairment."). See also, e.g., Baert v. Euclid Beverage, Limited,

___ F.3d ___, 1998 WL 381442 at *4 (7th Cir. 1998) (insulin

dependent diabetes is not a per se disability under the ADA); Burch

v. Coca-Cola Co., 119 F.3d 305, 316 (5th Cir. 1997), cert. denied,

118 S.Ct. 871 (1998) ("Unlike HIV infection, the EEOC has not

attempted to classify alcoholism as a per se disability, and we

decline to adopt such a questionable position."); Still v.

Freeport-McMoran, Inc., 120 F.3d 50, 52 (5th Cir. 1997) (holding

that blindness in one eye did not automatically constitute a

disability); Bridges v. City of Bossier, 92 F.3d 329, 336 n.11 (5th

Cir. 1996) (rejecting argument that hemophilia is a disability per

se); and Homeyer v. Stanley Tulchin Assocs., Inc., 91 F.3d 959, 962

(7th Cir. 1996) ("A disability determination, however, should not

be based on abstract lists or categories of impairments, as there

are varying degrees of impairments as well as varied individuals

who suffer from the impairments.").

We have consistently emphasized that an individualized, case-

by-case determination of disability best achieves the purposes of

12

the ADA. As the EEOC states in its Interpretive Guidance, "[t]he

determination of whether an individual has a disability is not

necessarily based on the name or diagnosis of the impairment the

person has, but rather on the effect of that impairment on the life

of the individual."15 Deas provides us with no reason to depart

from our general practice of determining disability status on a

case-by-case basis, and we consequently decline to do so.

We note two additional weaknesses in Deas’ argument. First,

she has not provided any expert testimony or other evidence to

support her position or its underlying premises.16 Second, she does

not offer any practical definition of the impairment that she would

have us declare a disability per se. "Seizures" is quite simply

15

29 C.F.R. Pt. 1630.2(j), App. (1997). We also note that the

Supreme Court recently held that asymptomatic HIV infection

inherently limits certain major life activities. Bragdon v.

Abbott, 118 S.Ct. 2196 (1998). The Court specifically declined to

rule on the question of whether HIV infection constitutes a per se

disability, instead conducting an individualized inquiry to

determine whether HIV infection would substantially limit one or

more of the plaintiff’s major life activities. Id. 2206-2207.

16

Although it is not fully articulated, we assume that Deas’

argument in favor of recognizing seizures as a disability per se is

based either on the premise that individuals who suffer from

"seizures" face significant societal prejudice and "attitudinal

barriers" to employment or on the premise that all "seizures" are

actually disabling. Deas has not directed our attention to

substantial evidence offered in support of either proposition, and

our review of the record does not reveal any such evidence.

13

too broad and too amorphous a term to be useful in describing a

class of impairments that is to receive per se treatment.17

17

"Seizures" (as Deas has chosen to identify her impairment)

vary widely both in their symptoms and their causes. The term is

defined somewhat vaguely by one medical reference source as "[a]

sudden episode of uncontrolled activity in the brain" or "transient

neurological abnormalities caused by abnormal electrical activity

in the brain." The American Medical Association Encyclopedia of

Medicine 890 & 412 (Charles B. Clayman ed., 1989). Symptoms vary

from "tingling or twitching of only a small area of the body" to

"hallucinations or intense feelings of fear or familiarity" to

severe convulsions and total unconsciousness. Id. at 890. Severe

seizures can be fatal. Id. at 413. A second reference work notes

that the "clinical manifestations of the [epileptic seizure] may

vary from complex abnormalities of behavior including generalized

or focal convulsions to momentary spells of impaired

consciousness." Stedman’s Medical Dictionary 584 (Marjory Spraycar

ed., 26th ed. 1995).

The causes of seizures are apparently as varied as their

symptoms, including, inter alia, "head injury, infection,

cerebrovascular accident (stroke), brain tumor, metabolic

disturbances, or alcohol (withdrawal or hereditary intolerance of

alcohol)." Clayman, supra at 890. "A tendency to recurrent

seizures or temporary alteration in one or more brain functions"

constitutes "epilepsy," which shares the same variability in

symptoms and causes. Id. at 412. The potential causes of epilepsy

include, inter alia, "head injury, birth trauma, brain infection

(such as meningitis or encephalitis), brain tumor, stroke, drug

intoxication, drug or alcohol withdrawal states, or metabolic

imbalances in the body." Id.

Due to this wide range of symptoms and causes, the term

"seizures" does not appear to describe a class of impairments that

share sufficiently similar characteristics such that they should be

treated as a single "impairment" or "disability" under the ADA.

The result of accepting Deas’ argument that "seizures" constitute

a disability per se would require courts to equate the impairment

of an individual who experiences occasional "tingling" in his

fingertips due to mild seizures with the impairment of an

individual who experiences frequent, prolonged, and potentially

life-threatening convulsions due to severe grand mal seizures. We

view this as a legally untenable position, and conclude that the

determination of whether seizures are disabling for purposes of the

ADA is best left to a case-by-case analysis.

14

In sum, Deas has failed, both on appeal and in the court

below, to provide any evidence or any reasoned argument or

persuasive precedent that would warrant this Court’s recognition of

"seizures" as a disability per se. Consequently, we hold that the

magistrate judge did not err in refusing to recognize Deas’

seizures as a disability per se and in ruling that Deas did not

establish, under this theory, that she was an "individual with a

disability" within the meaning of the ADA.

II. "Awareness" as a Major Life Activity

In her second argument on appeal, Deas contends that the

magistrate judge "erred in failing to recognize that the major life

activities of seeing, hearing, and speaking are by definition and

nature substantially limited in a person who has temporarily lost

awareness of his or her surroundings." She also urges this Court

to hold that "awareness" is a major life activity.18 This argument

is analogous to Deas’ assertion that seizures should be considered

a disability per se, and we reject it for similar reasons. We

decline to accept the broad proposition that every temporary loss

of "awareness," no matter how brief, necessarily constitutes a

18

The term "awareness" has a variety of meanings and is not

susceptible to any precise definition. Moreover, awareness

describes a state of consciousness, not a discrete life "activity."

Consequently, we decline to recognize awareness per se as a major

life activity.

15

substantial limitation of the major life activities of seeing,

hearing, and speaking.19

Deas also attempts to extend this general argument to the

specific context of her case, arguing in essence that because Dr.

Dixon perceived her to suffer from seizures, she must also have

regarded her as substantially limited in the major life activities

of seeing, hearing, and speaking. Accordingly, Deas asserts that

her "discharge was based solely on [Dr. Dixon’s] perception that in

the event of a seizure, Miss Deas would be unable to see, hear, or

speak to the patients or the other workers in the hospital," and

offers this as evidence that Dr. Dixon regarded her as

substantially limited in these major life activities. Deas offers

no additional evidence that Dr. Dixon perceived her as

substantially limited, but simply relies on the bald assertion,

based on the above reasoning, that Dr. Dixon "perceived her as

being substantially limited in the major life activities of seeing,

19

We note that Deas does not direct the attention of this Court

to a single decision supporting this proposition. Nor does she

make any reasoned argument in favor of her position. She simply

asserts that a temporary loss of "awareness," no matter how brief,

must be considered to substantially limit the major life activities

of seeing, hearing, and speaking. This argument is not supported

by either the ADA or the decisions of this Court. Although it is

uncontrovertible that a seizure which causes a temporary loss of

awareness briefly "limits" an individual’s ability to see, hear,

and speak, it is far from clear that all such seizures have the

effect of substantially limiting these major life activities. As

described above, the symptoms of seizures vary widely. We do not

doubt that in many cases epilepsy or a general seizure disorder

will substantially limit one or more major life activities. We

simply decline to accept the premise that all seizures will have

this effect.

16

hearing, and speaking." This assertion is entirely conclusory and

does not constitute evidence from which a reasonable trier of fact

could conclude that Dr. Dixon regarded Deas as "substantially

limited" in her ability to see, hear, and speak.

Moreover, it is axiomatic that "[a] physical impairment,

standing alone, is not necessarily a disability as contemplated by

the ADA." Dutcher, 53 F.3d at 726. To rise to the level of a

disability, an impairment must substantially limit one or more

major life activities. Id. As has been repeatedly noted, "[t]he

statutory language, requiring a substantial limitation of a major

life activity, emphasizes that the impairment must be a significant

one." Forrisi v. Bowen, 794 F.2d 931, 933-34 (4th Cir. 1986).

Where, as in the case sub judice, the claim is that the plaintiff

was "regarded as" having a substantially limiting impairment, the

requirement that the perceived impairment be substantially limiting

remains, and the plaintiff bears the burden of making a prima facie

showing that the impairment, as the defendant perceived it, was

substantially limiting.

The EEOC regulations define "substantially limits" as being

either "[u]nable to perform a major life activity that the average

person . . . can perform" or "[s]ignificantly restricted as to the

condition, manner or duration under which an individual can perform

a particular major life activity as compared to the condition,

manner, or duration under which the average person in the general

17

population can perform that same major life activity." 29 C.F.R.

§ 1620.2(j)(1)(i) & (ii). Dr. Dixon clearly did not regard Deas as

completely "unable" to see, speak, and hear. Nor does the evidence

support the conclusion that Dr. Dixon perceived Deas as being

"significantly restricted as to the condition, manner, or duration"

under which she could see, speak, or hear.

The summary judgment record indicates only that Dr. Dixon

believed that Deas suffered from petit mal seizures, during which

she would lose some or all awareness of her surroundings for a

brief period of time. In her deposition testimony, Dr. Dixon

testified that she believed Deas was experiencing petit mal

seizures and described the symptoms of such seizures as follows:

"[In a] petit mal seizure, one does not necessarily lose

consciousness, but awareness; and they don’t have a

general jerking and spasmodic reaction throughout the

body, but they are not aware of their surroundings. And

they may move their head or face in a certain way for a

certain length of time and not be aware of their

environment for a few seconds."

At most, the summary judgment evidence indicates that Dr. Dixon

believed (correctly) that while experiencing a seizure, Deas was

limited in her ability to see, hear, and speak for "a few seconds."

Other than Dr. Dixon’s decision to discharge Deas, this deposition

testimony constitutes the only evidence in the record as to how

"substantially" Dr. Dixon perceived the seizures to limit Deas’

ability to see, hear, or speak. Being unable to see, hear, or

speak for a period of several seconds does not amount to a

18

"significant restriction" as to "the condition, manner, or

duration" under which Deas could see, hear, and speak in comparison

to an average member of the general population.20 In sum, viewing

the summary judgment evidence in the light most favorable to Deas,

we hold that no rational trier of fact could conclude that Dr.

Dixon actually perceived Deas to be substantially limited in her

ability to see, hear, or speak.

III. The Major Life Activity of Work

Deas’ final argument on appeal is that Dr. Dixon perceived her

as substantially limited in the major life activity of work. She

alleges that during her exit interview "she was told by both Dr.

20

For example, in Still v. Freeport-McMoran, Inc., 120 F.3d 50,

52 (5th Cir. 1997), we held that an individual who was permanently

blind in one eye was not substantially limited in the major life

activity of seeing because he could see well enough with the other

eye to engage in most typical activities. And in Robinson v.

Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996), we

held that an individual who suffered from asbestosis, which

impairment had reduced his lung capacity to 50% of normal and had

caused him to experience shortness of breath and difficulty

climbing stairs, was not substantially limited in the major life

activity of breathing. See also Dutcher v. Ingalls Shipbuilding,

53 F.3d 723, 726 & n.11 (5th Cir. 1995), and Rogers v.

International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.

1996) (holding evidence of "a 13% permanent, partial disability"

insufficient to establish disability for purposes of ADA).

Additionally, we note that Deas’ claim is similar to a

scenario used by the EEOC in describing how substantially limiting

an impairment must be before it constitutes a disability. In its

Compliance Manual the EEOC states that a "borderline" case of

cerebral palsy "that only slightly interferes with an individual’s

ability to read . . . and to speak" is not sufficient to constitute

a disability. Rogers, 87 F.3d at 759 (citing EEOC Compliance

Manual, § 902.4(c)(1)). Similarly, Deas’ seizures interfere only

slightly with the actual activities of seeing, hearing, and

speaking.

19

Dixon and [Peggy Miller] that there were no other jobs in the

hospital that could accommodate [her], and that therefore she was

fired from the hospital altogether." Deas argues that this "proves

the defendants perceived [her] to be substantially limited in her

ability to work in any clinic or hospital setting." (Emphasis

added.)21 Deas further asserts that this demonstrates that Dixon

and Miller believed her to be substantially limited as to both

medical and nonmedical occupations and positions, including those

of "administrators, secretaries, receptionists, clerks,

housekeepers, dieticians, librarians, kitchen workers, maintenance

workers, groundskeepers, janitors, and social service workers."

This assertion is without legal merit and lacks evidentiary

support.

With respect to the major life activity of working,

"substantially limits" is defined as "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." 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

21

Dr. Dixon testified in her deposition that even an individual

suffering from petit mal seizures that are not under "good control"

could work safely in a variety of employment situations. She

specifically stated, for example, that Deas--whose seizures she did

not consider to be under "good control"--could safely work "in a

number of places" and that Deas "could be a good receptionist."

20

activity of working."22 Thus, Dr. Dixon’s belief that Deas was

incapable of fulfilling the essential functions of an "addiction

technician" in a hospital substance abuse treatment unit does not

establish that she regarded her as being substantially limited in

her ability to work in general.

Furthermore, Deas’ assertion that Dr. Dixon and Peggy Miller

regarded her as substantially limited in her ability to work is not

supported by the record. There is no evidence that either thought

that Deas could not work safely in either "a class of jobs or a

broad range of jobs in various classes." Because Dr. Dixon is the

one who decided to discharge Deas, Peggy Miller’s perception of

22

Id. See also Chandler v. City of Dallas, 2 F.3d 1385, 1393

(5th Cir. 1993) ("An employer’s belief that an employee is unable

to perform one task with an adequate safety margin does not

establish per se that the employer regards the employee as having

a substantial limitation on his ability to work in general."); and

Forrisi, 794 F.2d at 934 ("Several courts have previously addressed

this issue, deciding unanimously that an employer does not

necessarily regard an employee as handicapped simply by finding the

employee to be incapable of satisfying the singular demands of a

particular job.").

21

Deas is irrelevant to Deas’ argument.23 Consequently we limit our

discussion to the evidence of Dr. Dixon’s perceptions.

In her deposition testimony, Dr. Dixon stated that she could

name "a number of places" where she thought Deas could work. Dr.

Dixon further made clear that the reason she believed that Deas

could not safely work in a substance abuse clinic was that the

patients being treated for substance abuse "would be of [a] higher

risk" than typical patients. Dr. Dixon also indicated that she

only perceived the seizures as a problem because employment in a

substance abuse unit required a certain level of vigilance that an

individual suffering from seizures would be unable to provide. Dr.

Dixon analogized the requirements for working in a substance abuse

unit to other occupations that require uninterrupted awareness or

vigilance, stating, for example, that "if a person was an airplane

pilot, seizures are not acceptable." Thus, the summary judgment

23

There is a possibility that Deas is attempting to assert the

claim that Miller discriminated against her by refusing to reassign

her to a different position within the hospital. Deas, however,

cannot prevail on this claim because she has not made any showing

either that positions were available or that she applied for,

requested to be considered for, or even showed an interest in other

positions at the hospital. Deas bears the initial burden of

producing evidence on these issues. See Foreman v. Babcock &

Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997). Absent any evidence

that such positions were available and absent any allegation that

Deas requested to be considered for such a position, Deas has not

even stated a claim of discrimination in hiring practices let alone

produced sufficient evidence to survive a motion for summary

judgment. Thus, even if the record contained evidence that Miller

perceived Deas as disabled (which, incidentally, it does not),

Deas’ claim would still fail, and Miller’s perceptions are

therefore irrelevant to the disposition of this case.

22

evidence does not support the assertion that Dr. Dixon regarded

Deas as unable to work safely in a broad range of jobs. In sum,

there is simply no indication in the record that Dr. Dixon regarded

Deas as substantially limited as to anything more than a few,

highly specialized jobs that required relatively high levels of

vigilance or uninterrupted awareness.24

Accordingly, because Deas has produced no evidence from which

a rational trier of fact could conclude that Dr. Dixon perceived

her as substantially limited in her ability to work generally, we

hold that the magistrate judge did not err in granting summary

judgment in favor of the defendants-appellees on this issue.

Conclusion

In conclusion we note that the record is devoid of any

indication that Dr. Dixon overestimated the severity of Deas’

impairment, overreacted to her seizures, or made the decision to

terminate Deas based on a misperception as to Deas’ capabilities.

The ADA prohibits discrimination on the basis of disability "to

24

The magistrate judge concluded that "There is no evidence that

the defendants believed [Deas] could not, or should not, obtain

work in this field [i.e., general psychology] because of her

seizures. Viewing the summary judgment evidence in the light most

favorable to the plaintiff shows that at most the defendants

perceived the plaintiff was unable to work in a single job--as an

addiction technician in a substance abuse unit or a hospital." It

appears, however, that, when viewed in a light most favorable to

Deas, the summary judgment evidence is sufficient that a reasonable

trier of fact could conclude that Dr. Dixon regarded Deas as unable

to perform more than just the single job of "addiction technician,"

but there is no support whatsoever for a finding that Dr. Dixon

perceived Deas to be incapable of working in a broad range of jobs.

23

ensure that [such] individuals are not denied jobs or other

benefits because of the prejudiced attitudes or the ignorance of

others."25 There is no evidence that Dr. Dixon’s decision to

terminate Deas was based on anything but concern for the safety of

Deas and of the patients that would be treated in the substance

abuse unit. Deas has offered no evidence that Dr. Dixon’s decision

was in any way unreasonable or motivated by a malign or legally

prohibited motive. Accordingly, we hold that the magistrate judge

did not err in granting summary judgment in favor of the

defendants-appellees. The judgment of the magistrate judge is

therefore

AFFIRMED.

25

School Bd. of Nassau County v. Arline, 107 S.Ct. 1123, 1129

(1987). See also 29 C.F.R. Pt. 1630.2(l) App. (adopting the

reasoning and rationale of Arline as applying to the ADA).

24