IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-40915 _____________________

SILVIA D DAY,

Plaintiff-Appellant,

v.

EARTHGRAINS COMPANY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Eastern District of Texas Docket No. 3:98-CV-44 _________________________________________________________________ February 28, 2000

Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Silvia Day (“Day”) appeals from the

district court’s entry of summary judgment in favor of Defendant-

Appellant Earthgrains Company (“Earthgrains”). For the reasons

stated below, we AFFIRM.

Day began working for Earthgrains in June 1974. In June

1995, Day was diagnosed with breast cancer. Day went on medical

leave and underwent a double mastectomy that same month. She

returned to work in mid-October 1995, though she continued

chemotherapy treatment through December. At the end of her

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. chemotherapy, Day’s doctors diagnosed her as being free from

cancer. When Day came back to work, she was returned to the same

position, with the same salary and responsibilities. Though she

claims her doctors instructed her not to work more than eight

hours a day, Day never demanded that Earthgrains place her on an

eight-hour-a-day schedule, nor did Day produce any evidence that

her doctors directed her to work such a schedule.

In August 1996, Earthgrains terminated Day’s employment.

Earthgrains claims that Day’s termination was part of a

nationwide reduction-in-force (“RIF”) and that Day’s performance

rating was the lowest of any full-time clerical personnel. Day

claims that Earthgrains terminated her because of her disability,

cancer. Day subsequently filed suit, claiming that her

termination violated the Americans with Disabilities Act (“ADA”),

see

, and Texas Labor Code § 21.051.1

Earthgrains moved for summary judgment, and the United States

Magistrate Judge assigned to the case recommended that the motion

be granted. Day filed objections to the magistrate’s

recommendations. The district court, however, adopted the

recommendations, granted Earthgrains’ motion, and entered

judgment against Day. Day timely appeals.

We review a grant of summary judgment de novo, applying the

1 Day’s claims under the ADA and Texas Labor Code are identical. In such a situation, Texas courts look to analogous federal case law under the ADA for guidance in applying the Texas code. See Austin State Hosp. v. Kitchen,

(Tex. App. 1995, no writ). Therefore, we apply the same analysis to both of Day’s causes of action.

2 same standards as the district court. See Chaney v. New Orleans

Pub. Facility Management, Inc.,

, 166 (5th Cir.

1999). Summary judgment is proper when 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). While

we consider all factual issues in a light most favorable to the

non-movant, see Dutcher v. Ingalls Shipbuilding,

(5th Cir. 1995), summary judgment is appropriate if the non-

movant fails to set forth specific facts in support of her

allegations, see Celotex Corp. v. Catrett,

(1986).

The district court granted summary judgment because it found

that Day was not disabled as defined under the ADA.2 Under the

ADA, a party is disabled if she a) has a physical or mental

impairment that substantially limits a major life activity, or b)

has a record of such an impairment, or c) is regarded as having

such an impairment. See

(2). In her appellate

brief, Day concedes that the United States Supreme Court’s recent

decision in Sutton v. United Air Lines,

(1999),

effectively forecloses any argument that she is currently

disabled.

2 In its motion for summary judgment and in its appellate brief, Earthgrains argues that, even if Day was disabled, it had legitimate, nondiscriminatory reasons for terminating her employment. The district court found that Day was not disabled, and therefore it never reached this issue. Because we agree with the district court that Day is not disabled under the ADA, we will not address Earthgrains’ alternative argument either.

3 Nonetheless, Day maintains that she is disabled under the

ADA because her breast cancer caused her to have a record of a

physical impairment that substantially limited a major life

activity, and/or Earthgrains regarded her as having such an

impairment.

We are unpersuaded by Day’s argument. Day relies on our

opinion in Equal Employment Opportunity Comm’n v. R.J. Gallagher

Co.,

(5th Cir. 1999), to support her contention that

she had a record of a physical impairment that substantially

limited a major life activity. In Gallagher, we remanded a

portion of the plaintiff’s case to the district court after we

determined that the district court had not sufficiently inquired

into the issue of whether the plaintiff was substantially limited

in a major life activity while undergoing treatment for cancer.

See

.

Day contends that, as in Gallagher, the district court

failed to consider her condition during treatment when

determining whether she had a record of an impairment that

substantially limited a major life activity. To the contrary,

the district court expressly noted that Day’s cancer limited a

major life activity during her treatment, but because Day’s

limitation was of a temporary nature, it reasoned that any

impairment during her treatment was insufficient to render her

substantially limited in a major life activity. We agree.

Day’s impairment during her treatment would render her

disabled if it “substantially limited” her in a major life

4 activity. The ADA’s regulations list a number of factors to be

considered in determining whether an impairment is “substantially

limiting”, including: “(1) the nature and severity of the

impairment, (2) the duration or expected duration of the

impairment, and (3) the permanent or long term impact ... of the

impairment.”

(j) (Appendix). As we have

recognized, a temporary, non-chronic impairment does not

constitute a disabling impairment. See Rogers v. Int’l Marine

Terminals, Inc.,

, 759 (5th Cir. 1996). Day was

hospitalized for four months and has since made a full recovery.

Although her cancer may have been severe, its duration was short

and its long-term impact minimal. As such, the district court

correctly determined that Day was not disabled because she could

not establish a record of an impairment that substantially

limited a major life activity.

Day next argues that the district court erred in finding

that Earthgrains did not perceive her as disabled. A person may

be considered disabled for the purposes of the ADA if she is

regarded as having an impairment that substantially limits a

major life activity. See

(2)(C). Day contends

that Earthgrains regarded her as disabled because: 1) when she

told her supervisor that her doctor’s thought she should work

only eight hours a day, her supervisor told her that the employee

that had been covering Day’s position “would liked to have worked

some eight hour days too”; 2) the decision to terminate Day was

based upon a job performance evaluation that was completed during

5 her chemotherapy, when she was not performing at her peak;

3)after terminating Day, Earthgrains did not offer her a newly-

created administrative assistant position; and 4) general

evidence exists that employers perceive cancer patients as

disabled.

Day’s evidence fails to raise a fact issue as to whether

Earthgrains regarded her as disabled. None of her evidence

points to the conclusion that Earthgrains regarded her as having

an impairment that substantially limited a major life activity.

In fact, in her deposition, Day testified that upon her return to

work she was reinstated to her old position, drew the same

salary, and had the same responsibilities. Furthermore, Day

admits that she witnessed no rude, inappropriate, or negative

behavior directed towards her because of her cancer.

The statement made by Day’s supervisor regarding Day’s need

to work eight-hour days fails to raise a fact issue as to whether

Earthgrains regarded her as disabled. While we “consider this

comment in the light most favorable to [Day] ... we cannot do so

in isolation.” Ellison v. Software Spectrum, Inc.,

(5th Cir. 1996). Day admits that she was emotional when her

supervisor made the comment, and that she may have taken the

comment very personally. Furthermore, when viewed with

Earthgrains’ reinstatement of Day to her old position, the

comment fails to indicate that the company regarded her as

substantially limited.

Given the evidence presented by Earthgrains, none of Day’s

6 evidence creates a genuine issue of material fact as to whether

the company regarded her as disabled. Rather, the evidence

indicates that Earthgrains welcomed Day back to her old position

after her bout with cancer, but due to her work habits and a

nationwide RIF, Day was terminated. The evidence simply does not

indicate that Earthgrains regarded Day as substantially limited.

Because Day has failed to produce evidence generating a

genuine issue of fact as to whether she has a record of an

impairment that substantially limited a major life activity, or

was regarded as having such an impairment, the district court did

not err in granting Earthgrains’ motion for summary judgment. We

AFFIRM.

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