IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 99-30748 _____________________

ELZADIA MILLER,

Plaintiff-Appellant,

versus

BELLSOUTH BUSINESS SYSTEMS, INC.,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (98-CV-2039) _________________________________________________________________ March 14, 2000

Before JOLLY and DENNIS, Circuit Judges, and DAVID D. DOWD,* District Judge.

PER CURIAM:** After reviewing the record and the district court’s memorandum

ruling, we find no reversible error in the district court’s

judgment holding that the plaintiff failed to create a genuine

issue of material fact with respect to whether she was

substantially limited in the major life activity of working. See

Dutcher v. Ingalls Shipbuilding,

(5th Cir. 1995).

Furthermore, we find the district court’s opinion to be completely

* District Judge of the Northern District of Ohio, sitting by designation. m 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 consistent with our precedent. See Sherrod v. American Airlines,

Inc.,

(5th Cir. 1998)(stating that evidence

establishing that the plaintiff cannot perform one particular job

is “insufficient for a reasonable jury to find a substantial

limitation on a major life activity”); Price v. Marathon Cheese

Corp.,

(5th Cir. 1997)(stating that because

plaintiff worked prior to her discharge, and because “she testified

that she believed she was capable of doing other jobs;” she was not

“disabled” within the meaning of the ADA); Ellison v. Software

Spectrum, Inc.,

(5th Cir. 1996)(stating that

despite the fact that plaintiff’s “ability to work was affected, .

. . far more is required to trigger coverage under [the ADA]”);

Dutcher,

; and Chandler v. City of Dallas,

(5th Cir. 1993).

The judgment of the district court is

A F F I R M E D.

2 Dennis, Circuit Judge, dissenting.

Elzadia Miller was employed by South Central Bell and related

companies for over twenty years. She worked as a service order

typist and a service order writer beginning in 1972. In July 1991

she injured her wrists and hands. In May 1992, as a result of

these injuries, her doctors permanently restricted her from

performing certain types of work involving fine gripping and

repetitive motion work on computers and typewriters. In May 1993,

her medical restrictions were modified to restrict her from more

than an occasional use of office equipment that would require

holding her hands in a fixed position. Miller returned to light

duty work in October 1993. In the first quarter of 1994, Miller’s

employer eliminated the position of service order writer in

Louisiana as well as in other states. Miller was offered the

option of moving to Baton Rouge or New Orleans and being promoted

to a service representative. She declined to leave Shreveport and

entered the company’s job bank, which enabled her to receive

termination pay at her regular monthly rate of pay spread over a

period of several months while continuing to receive preferential

consideration for vacancies in equal or lower rated jobs that might

become available. No such vacancies occurred in the Shreveport

area.

In response to this suit by Miller against BellSouth alleging

violations of the Americans with Disabilities Act of 1990 (“ADA”),

, et seq., BellSouth moved for summary judgment,

contending that Miller could not establish a prima facie case of

3 disability discrimination because, among other reasons, she is not

an individual with a disability. Miller filed an opposition to

which BellSouth replied. Miller attached brochures for a variety

of voice input computer systems to her opposition. She asserted

that these systems could have allowed BellSouth to adequately

accommodate her disability.

The district court granted BellSouth’s motion for summary

judgment on the ground that Miller had failed to show that there

was a genuine dispute as to the crucial threshold issue of fact,

viz., whether Miller’s impairment significantly restricts her

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. See

(j)(3). The summary judgment record, including Miller’s

affidavit and deposition testimony, establishes without dispute

that Miller’s impairment prevented her from typewriter and computer

and keyboard use as well as more than an occasional use of any

office equipment that would require holding her hands in a fixed

position. Miller contended that her opposition evidence was

sufficient to defeat summary judgment because (1) it established

that typing was virtually always the primary aspect of her work for

her employer for over twenty years and (2) that her inability to

perform typewriter, computer and other keyboard and office machine

work significantly restricts her in the ability to perform a class

of jobs and a broad range of jobs in various classes as compared to

the average person having comparable training, skills and abilities

4 to her own; that, in fact, her training, knowledge and skills

restrict her to jobs that she can no longer perform because of her

impairment. The district court, however, found her opposition

insufficient because: “There is no evidence, other than Miller’s

own testimony and her medical restrictions, concerning her ability

to perform her job duties....[She] offers no affidavits or other

methods of proof regarding her assertions beyond her conclusory

allegations. Furthermore, ‘[t]he inability to perform one aspect

of a job while retaining the ability to perform the work in general

does not amount to a substantial limitation of the activity of

working.’” (citing Dutcher v. Ingalls Shipbuilding,

(5th Cir. 1995)); see also

(j)(3); Sherrod v.

American Airlines, Inc.,

(5th Cir. 1998);

Ellison v. Software Spectrum, Inc.,

(5th Cir.

1996).

To determine whether an impairment rises to the level of a

"disability" as defined by the ADA, courts use a two-step analysis:

first, they consider whether the impairment substantially limits a

major life activity other than working, and second, they consider

whether the impairment substantially limits the plaintiff in

working. See, e.g., Dutcher,

; Love v. City of

Dallas,

*4 (N.D. Tex. 1997)(Buchmeyer, C.J.). In

this appeal, Miller does not argue that her impairment has any

effect on any activity other than her work. Accordingly, this

court need only consider whether Miller presented sufficient

5 evidence to create a genuine issue of fact as to whether her

impairment substantially limits her in working.

With regard to the activity of working:

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.

(j)(3)(i); see also Dutcher,

.

This Circuit has stated that three other factors can be considered

when determining whether an impairment substantially limits the

major life activity of working:

(A) The geographical area to which the individual has

reasonable access;

(B) The job from which the individual has been

disqualified because of an impairment, and the number and

types of jobs utilizing similar training, knowledge,

skills or abilities, within that geographical area, from

which the individual is also disqualified because of the

impairment (class of jobs); and/or

(C) The job from which the individual has been

disqualified because of an impairment, and the number and

types of other jobs not utilizing similar training,

6 knowledge, skills or abilities, within that geographical

area, from which the individual is also disqualified

because of the impairment (broad range of jobs in various

classes).

Dutcher,

, n. 13 (citing

(j)(3)(ii)(A)-(C)).

In my opinion, Miller has created a fact issue for the jury as

to whether she is substantially restricted in her ability to

perform a class of jobs or a broad range of jobs in various classes

due to her impairment. Therefore, I cannot agree that summary

judgment was correctly rendered against Miller on the issue of

whether her impairment constitutes a "disability" under the ADA.

The district court, in effect, adopted a standard of proof in

ADA cases that is unprecedented in this Circuit and has

overwhelmingly been rejected by other circuits. In essence, the

district court held that, because Miller provided no quantitative

evidence detailing the relevant job market, no reasonable juror

could conclude that she was significantly restricted in her ability

to perform either a class or a broad range of jobs. The statute,

regulations and case law do not require quantitative evidence of

the sort the district court seems to demand for an ADA plaintiff’s

prima facie case of disability.

This court has not required a plaintiff to present vocational

experts at the summary judgment stage to assess the number and

types of jobs utilizing similar training, knowledge, skills or

abilities within the plaintiffs geographic area. Although this

7 court in Dutcher did list such factors as factors that "can be

considered" by a court, the factors are not required to enable a

plaintiff to survive summary judgment when the plaintiff, through

other evidence, can make out a fact issue as to whether he or she

was substantially limited in his or her ability to perform a class

of jobs.

The correct interpretation of the EEOC guideline and our

Dutcher opinion is that the factors listed in

(j)(3)(ii) are factors that "may be considered" "[i]n

addition to" the nature, severity, duration, and impact of the

impairment. “If either party chooses to use those factors to

bolster its case, such evidence is relevant; however, neither party

must present such evidence, and such evidence is not a part of the

plaintiff's burden of production. Thus, a plaintiff (as in the

instant case) can create a fact issue as to whether he or she has

a disability without reference to those factors if the plaintiff

presents other sufficient evidence that he or she has a

disability.” Love,

at *6, n.2.

Of course, a plaintiff cannot establish that she is

substantially limited in her ability to work simply by showing an

impairment to her performance of one particular job. See Sutton v.

United Airlines, Inc.,

,

(1999).

It is not required, however, that ADA plaintiffs prove a negative,

viz., that almost all jobs are outside their reach in order to

avoid summary judgment or a judgment as a matter of law. See

DePaoli v. Abbott Labs.,

(7th Cir. 1998) ("[A]n

8 employer cannot avoid liability by showing that the employee is

still generally capable of doing some economically valuable work in

the national economy..."). Rather, a plaintiff is only required to

present "at least some evidence from which one might infer that

[she] faced 'significant restrictions' in her ability to meet the

requirements of other jobs." Davidson v. Midelfort Clinic, Ltd.,

(7th Cir. 1998) (describing what plaintiff must

do to defeat a motion for summary judgment); see also Duncan v.

Washington Metropolitan Area Transit Authority,

, 490-

91 (D.C. Cir. 2000) (Edwards, C.J., dissenting); Swain v.

Hillsborough County Sch. Bd.,

(11th Cir. 1998)

("Although a plaintiff seeking recovery under the ADA is not

required to provide a comprehensive list of jobs which she cannot

perform, the person must provide some evidence beyond the mere

existence and impact of a physical impairment to survive summary

judgment.") (citing Wooten v. Farmland Foods,

(8th

Cir. 1995); Dutcher,

; Bolton v. Scrivner, Inc.,

(10th Cir. 1994)).

As Chief Judge Edwards observed in his dissenting opinion in

Duncan:

Most of the decisions from our sister circuits have found

a triable issue of fact regarding a plaintiff's

disability without even mentioning quantitative evidence

detailing the relevant job market. See Mustafa v. Clark

County Sch. Dist.,

(9th Cir. 1998)

(per curiam) (finding that plaintiff was substantially

9 limited in his ability to work because of depression,

post-traumatic stress disorder, and panic attacks, while

referring to no quantitative vocational evidence); Cehrs

v. Northeast Ohio Alzheimer's Research Ctr.,

(6th Cir. 1998) (finding genuine issue of

material fact regarding whether plaintiff's psoriasis

substantially limited her ability to work with no

reference to evidence regarding job availability); Baert

v. Euclid Beverage, Ltd.,

(7th Cir. 1998) (finding

plaintiff's evidence sufficient to overcome summary judgment where

he testified to potential hospitalization due to insulin-dependent

diabetes); Criado v. IBM Corp.,

(1st Cir. 1998)

(finding, in affirming district court's denial of employer's motion

for a judgment as a matter of law, that the jury could have

reasonably concluded that plaintiff's depression, testified to by

plaintiff and physician, "substantially impaired the major life

activity of working," while referring to no evidence regarding

classes of jobs for which she was disqualified); Cline, 144 F.3d at

303-04 (finding a jury verdict of intentional discrimination under

the ADA supportable where plaintiff showed that he was disqualified

from maintenance supervisory work, and where the court made no

mention of vocational evidence); Gilday v. Mecosta County,

(6th Cir. 1997) (finding sufficient evidence to create a

question of fact as to whether plaintiff's diabetes is a disability

under the ADA because plaintiff's condition made him irritable and

unable to cooperate with co-workers, an ability "necessary for all

10 but the most solitary of occupations," without reference to

quantitative vocational evidence); Best v. Shell Oil Co.,

(7th Cir. 1997) (finding that summary judgment for

defendant was improper even though the record did not show how many

jobs plaintiff was disqualified from because of the impairment);

Roush v. Weastec, Inc.,

(6th Cir. 1996) (finding

a genuine issue of material fact as to whether bladder infection

resulted in a substantial limitation of working with no reference

to testimony about job market); Pritchard v. Southern Co. Svcs.,

, 1134 (11th Cir. 1996) (finding sufficient evidence for

the case to go to the jury where an engineer suffered symptoms of

"marked fatigue, lack of energy, lack of interest, poor

concentration, memory problems, suicidal thoughts, depressed

affect, and irritability" that limited her ability to work in

nuclear engineering, even though she was able to work as a

non-nuclear engineer).

Duncan,

(Edwards, C.J., dissenting).

The present case is not one in which the plaintiff’s

impairment disables her from performing one aspect of a job while

retaining the ability to perform the work in general. See Sherrod,

(medical restrictions on heavy lifting

disqualified plaintiff for the position of flight attendant but not

a class of jobs or broad range of jobs); Ellison,

(cancer treatment affected but did not significantly restrict

employee in continuing to work); Dutcher,

(welder

continued to work for the same employer as a non-climbing welder,

11 although her ability as a climbing welder was impaired); see also

Sutton v. United Air Lines, Inc.,

(1999)(myopic pilots

were neither disabled (because their impairments were fully

correctable with visual devices) nor regarded as disabled, although

airline refused to hire them as global pilots (because global pilot

is a single job and other pilot positions were available to them,

such as regional pilot and pilot instructor)).

Nor is the present case an obvious situation in which the

plaintiff failed to allege exclusion from a sufficiently broad

class of jobs. See Zenor v. El Paso Healthcare Sys., Ltd.,

(5th Cir. 1999) (finding position of pharmacist not

to be a class of jobs); Bridges v. City of Bossier,

(5th Cir. 1996) (finding that the category of firefighting

jobs is not a "class of jobs"); Muller v. Costello,

(2d Cir. 1999) (stating that the category of "correctional

officer" was not a "class of jobs" under the ADA); Patterson v.

Chicago Ass'n for Retarded Citizens,

(7th Cir.

1998) (finding insufficient evidence of a substantial limitation

where plaintiff was only disqualified from one sort of teaching

position); Daley v. Koch,

(2d Cir. 1989) ("Being

declared unsuitable for the particular position of police officer

is not a substantial limitation of a major life activity."); cf.

Duncan v. Washington Metropolitan Area Transit Authority,

(D.C. Cir. 2000)(Transit authority employee’s back-

related 20-pound lifting restriction insufficient to show

substantial limitation on ability to work).

12 Keyboard work on typewriters, computers, and similar office

equipment was the primary aspect and core function of Miller’s

work. Although the plaintiff has not provided detailed evidence of

her educational background, training, or qualifications for other

jobs, she has demonstrated that for over twenty years she has done

nothing but secretarial or clerical work in which typewriter and

computer keyboard labor was the main essential physical element;

and that she cannot perform the jobs she had been doing most of her

life or any other comparable job that would require full-time

typing or keyboard work or more than occasional use of any office

equipment requiring a fixed hands position. It is not subject to

reasonable dispute and is generally known within the territorial

jurisdiction of the trial court that in Shreveport, Louisiana, and

cities of its size, secretarial and clerical jobs requiring

skillful performance of keyboard work on typewriters, computers and

similar office equipment is both a major class of jobs and a broad

range of jobs in various classes.

Because the summary judgment cannot be legitimately affirmed

on the basis upon which it was granted, I respectfully dissent from

the majority’s summary affirmation.

13