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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20888
WILLIAM ROBINSON,
Plaintiff - Appellee Cross-Appellant,
VERSUS
GLOBAL MARINE DRILLING COMPANY,
Defendant - Appellant Cross-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
November 25, 1996
Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
William Robison,1 a worker with asbestosis, filed this
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"),
case against his employer, Global Marine Drilling Company, claiming
that he was not rehired because of his disability. While the
evidence shows that Robison had an impairment, the evidence is
insufficient to prove that his asbestosis substantially limited a
major life function. Thus Robison's impairment does not rise to
1The plaintiff's correct last name is "Robison." His name was
misspelled on the original complaint, however, so the case is
styled "Robinson."

the level of a disability under the ADA. Accordingly, we reverse
the district court's denial of judgment as a matter of law and
render a take-nothing judgment in favor of Global Marine.
BACKGROUND
William Robison worked for Global Marine for ten years as a
rig mechanic and rig engineer. In 1992 he was a rig engineer on
the Adriatic IV, a Global Marine drill ship working off the coast
of Sicily in the Mediterranean Sea. In August 1992, the Adriatic
IV lost its contract and, because there was no work available in
the Mediterranean, the rig was taken out of service and stacked.
Robison, along with most of the crew, was laid off when the rig was
stacked. Robison admits that his layoff was caused by economic
considerations and not by discrimination.
After the layoff, Robison's name was placed on a list of
Global Marine employees eligible to be recalled. This list was
circulated throughout Global Marine's fleet for review by rig
managers who had vacancies to fill on their rigs. Each Global
Marine rig manager had the authority to hire employees for the rigs
he supervised. All other crewmen of the Adriatic IV who had been
laid off were hired back. After the vessel was stacked, Global
Marine had 20-25 openings for which Robison was qualified.
Nonetheless, Robison was never hired back by Global Marine.
In 1986, Robison had been diagnosed with asbestosis, a
progressive and often fatal condition of the lungs. Robison was
"up front" about his diagnosis and always notified his tool pusher,
2

who was his supervisor on the rig, about his condition. In
addition, his personnel file at Global Marine contained a reference
to his pulmonary problems. Due to his asbestosis, Robison's lung
capacity was less than 50% of normal and he had shortness of breath
while climbing ladders on the Adriatic IV.
Robison filed suit against Global Marine, alleging violations
of the ADA and the Age Discrimination in Employment Act, 29 U.S.C.
§ 621 et seq. ("ADEA"). The jury found for Robison on his ADA
claim, but against him on his ADEA claim. The jury awarded him
$49,000 for back pay, $31,000 as liquidated damages and $50,000 for
punitive damages. Liquidated damages are not recoverable under the
ADA and the interrogatory concerning them was predicated on finding
liability under the ADEA. The district court, therefore,
disregarded the answer to that interrogatory and did not award the
$31,000 to the Robison. The district court also found that
punitive damages were not warranted and reduced Robison's award by
$50,000.
Global Marine filed a motion for judgment as a matter of law
as to Robison's ADA claim, which the district court denied.
DISCUSSION
In reviewing a denial of a motion for judgment as a matter of
law we employ:
[T]he same standards as the district court to
determine whether sufficient evidence exists to
support the jury verdict. . . . "If the facts and
inferences point so strongly and overwhelmingly in
favor of one party that it would be unreasonable
for jurors to arrive at a contrary verdict," the
motion for judgment should be granted.
3

Leatherwood v. Houston Post Co., 59 F.3d 533, 535-36 (5th Cir.
1995) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.
1969) (en banc)).
To establish a claim for discrimination under the ADA, a
plaintiff must prove that: (1) he has a disability; (2) he was
qualified for the job; and (3) an adverse employment decision was
made because of his disability. Rizzo v. Children's World Learning
Centers, Inc., 84 F.3d 758, 763 (5th Cir. 1996). Global Marine
argues that Robison fails on the first prong of his case. While
Robison had asbestosis, Global Marine contends that he was not
disabled under the ADA and thus was not entitled to ADA protection.
A disability under the ADA is:
(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 impairment; or
(C)
being regarded as having such an impairment.
42 U.S.C. § 12102(2). The EEOC's regulations define "major life
activities" as "functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working." 29 C.F.R. § 1630.2(i) (emphasis added).
An individual is "substantially limit[ed]" if he is:
(i)
unable to perform a major life activity that
the average person and the general population can
perform; or
(ii) significantly 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
population can perform the same major life
4

activity.
29 C.F.R. § 1630.2(j)(1).
The evidence establishes that Robison's asbestosis was an
"impairment." 29 C.F.R. § 1630.2(h)(1) (regulations define impair-
ment as a physiological disorder or condition affecting, inter
alia, the respiratory system). Thus, the issue is whether his
impairment substantially limits a major life activity, thereby
becoming a disability. Ellison v. Software Spectrum, Inc., 85 F.3d
187, 189-90 (5th Cir. 1996).
The only problem Robison experienced from his asbestosis was
a few instances of shortness of breath while climbing stairs.2 As
noted above, breathing is a major life activity, while "[c]limbing
is not such a basic, necessary function and this court does not
consider it to qualify as a major life activity under the ADA."
Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 758 n.2 (5th
Cir. 1996). Several instances of shortness of breath when climbing
stairs do not rise to the level of substantially limiting the major
life activity of breathing. It is important to note that Robison
offered no medical expert testimony. The only evidence regarding
his asbestosis and its effects came from the plaintiff himself.
2Robison also testified that his lung capacity was less than
50% of normal. While this may be evidence of an impairment, the
fact of a lower lung capacity is not evidence of a disability.
Other than the shortness of breath while climbing, Robison
introduced no evidence purporting to show how this lower lung
capacity "significantly restricted [him] as to the condition,
manner or duration under which [he could breathe] as compared to
the condition, manner, or duration under which the average person
in the general population can [breathe]." 29 C.F.R. §
1630.2(j)(1)(ii).
5

Robison can also fall under the ADA's protection if there is
evidence that he had a record of disability or was regarded as
disabled. 42 U.S.C. § 12102(2)(B) & (C). There was testimony at
trial that Robison told his supervisors of his asbestosis and that
the personnel file Global Marine kept on him noted his condition.
While these facts are evidence of a history of an impairment, they
are not evidence of a history of a disability. There is no
evidence in the record that Robison had a history of, or was
regarded as, having an impairment which substantially limits a
major life function.3
CONCLUSION
Robison is not disabled. He does have asbestosis, but that
impairment does not substantially limit his major life activity of
breathing. Because Robison failed to prove that he is disabled,
the evidence is insufficient to sustain the jury verdict on his ADA
claim. The district court erred in denying Global Marine's motion
3"Regarded as having such an impairment" means that the
individual:
(1)
Has a physical or mental impairment that does
not substantially limit major life activities but
is treated by a covered entity as constituting such
limitation;
(2)
Has a physical or mental impairment that
substantially limits major life activities only as
a result of the attitudes of others toward such
impairment; or
(3)
Has none of the impairments defined in . . .
[29 C.F.R. § 1630(h)] but is treated by a covered
entity
as
having
a
substantially
limiting
impairment.
29 C.F.R. § 1630.2(l)(1)-(3); Dutcher v. Ingalls Shipbuilding; 53
F.3d 723, 727-28 n.19 (5th Cir. 1995).
6

for judgment as a matter of law on Robison's ADA cause of action.
Accordingly, we REVERSE the judgment of the district court and
RENDER a take-nothing judgment in favor of Global Marine.4
4Robison cross-appealed, arguing that the district court erred
in reversing the punitive damages award and in denying certain
costs. Because we find no liability, we need not consider the
punitive damages and costs issues.
7