UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60390 Summary Calendar

SAMUEL L. MITCHELL,

Plaintiff-Appellant,

VERSUS

WARING OIL COMPANY,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:98cv157 January 31, 2000 Before SMITH, BARKSDALE and PARKER, Circuit Judges. PER CURIAM:*

Plaintiff-Appellant Samuel L. Mitchell (“Mitchell”) brought

suit claiming that he was discharged from his employment with

Defendant-Appellee Waring Oil Company (“Waring”) in violation of

the Americans with Disabilities Act of 1990,

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12213 (1995) (“ADA”). Mitchell now appeals the district court’s

grant of summary judgment in favor of Waring. We affirm.

Mitchell was employed by Waring as a convenience store clerk

from June, 1996 to December, 1996. In late November, 1996, a

supervisor asked Mitchell to change an overhead air filter in the

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 store. Mitchell declined, explaining that he could not raise his

left elbow above his shoulder.2 When Mitchell declined a second

request that he change the filter, he was terminated.

Mitchell filed suit, claiming, inter alia, that he was

discharged “because of his disability or perceived disability.”

The district court granted summary judgment to Waring because

Mitchell’s case failed on the threshold issue of showing that he

suffers from, or was perceived by defendant to suffer from, a

disability cognizable under the ADA.

The term “disability” is defined by the ADA as:

(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.

(2)(1995). Mitchell conceded in district court

that his inability to fully raise his left arm does not constitute

an impairment which “limits one or more of the major life

activities” as contemplated by the ADA. However, he contended that

he was “regarded as having such as impairment.” In order to make

a prima facie showing of a disability under the “regarded as”

prong, a plaintiff must produce enough evidence for a reasonable

trier of fact to conclude that the plaintiff was perceived by the

defendant as having an impairment which, if it existed as perceived

2 Plaintiff had been diagnosed with a “probable rotator cuff tear,” although it is disputed whether the doctor’s note setting out the diagnosis was furnished to the defendant before Mitchell’s termination.

2 by the defendant, would have substantially limited one or more of

the plaintiff’s major life activities. See Deas v. River West,

L.P.,

(5th Cir. 1998). The district court

concluded that the summary judgment evidence did not create a

genuine issue of fact concerning whether Waring perceived Mitchell

as having a substantially limiting impairment.

On appeal, Mitchell contends that the district court erred in

granting summary judgment to Waring because the record contains

evidence that Waring asked Mitchell questions prohibited by the ADA

prior to offering him employment and later used the answers as a

basis for his dismissal. Waring’s application contained the

following language:

While physical disabilities do not prevent your employment with this company, you may be required to carry out some tasks that involve physical activity. Because of this please answer the following questions:

Lifting of items up to 35 lbs. may be required in the course of your employment. Are you able to do so? If no, please explain.

Constant physical activity (assisting customers, stocking shelves, cleaning store and property, etc.) is necessary. Are you able to be physically active the entire shift? If no, please explain.

These questions are not prohibited by ADA. Employers may make pre-

employment inquiries concerning an applicant’s ability to perform

specific job functions. See EEOC Interpretive Guidance, §

1630.14(a). Therefore, Mitchell’s contention that the use of

“improper” preemployment questions is evidence of an ADA violation

is without merit.

Mitchell next contends that the written notice Waring gave him

3 prior to termination, as well as the termination notice itself,

gives rise to a fact question on his allegations that Waring

regarded him as having a cognizable impairment. Specifically, the

warning states, “On your application, you did not show any

disabilities. Therefore you should be able to perform all job

duties that are required.” Similarly, on his termination notice,

Waring notes that Mitchell “said on application there were no

disabilities.” First, these notices unequivocally take the

position that Mitchell has no disability. Further, the use of the

term “disability” by Waring in this correspondence does not evoke

the specialized definition set out in the ADA. We therefore find

no error in the district court’s conclusion that there was no

genuine issue of material fact on the question of whether Waring

regarded Mitchell as having a disability cognizable under the ADA.

For the foregoing reasons, the district court’s grant of

summary judgment for Waring is affirmed.

AFFIRMED.

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