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United States Court of Appeals,
Fifth Circuit.
No. 97-30305.
Summary Calendar
Phillip T. STILL, Plaintiff-Appellant,
v.
FREEPORT-McMORAN, INC., Defendant-Appellee.
Aug. 27, 1997.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.
PER CURIAM:
Phillip T. Still appeals the district court's grant of summary
judgment in favor of his former employer, Freeport McMoran, Inc.
("Freeport"). Still had sued Freeport, maintaining that he had
been fired because of a disability in violation of the Americans
with Disabilities Act, ("ADA"), 42 U.S.C. § 12101 et seq. The
district court dismissed the suit on Freeport's motion for summary
judgment. Because Still is not legally disabled under the ADA, the
district court's judgment is affirmed.
I
Freeport is a petroleum exploration company. In 1988,
Freeport hired Still to serve as a safety equipment clerk. In June
1993, Still was transferred to Freeport's Caminada Mine, to serve
as a warehouse clerk. Freeport ceased all operations at Caminada
Mine on March 15, 1994, and job transfers were offered to 55
Caminada Mine employees. Freeport laid off the remaining 39
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employees.
Freeport offered Still a transfer to another facility to work
as an outside rig worker. Still, who is blind in one eye, refused
the transfer believing that his limited sight made the position too
dangerous for him to perform. He was therefore discharged. Still
maintains that this discharge violated the ADA.
The district court granted Freeport's motion for summary
judgment, holding that Still was not disabled within the meaning of
the ADA because his partial blindness did not substantially limit
a major life activity. The court also held that he was not a
qualified individual with a disability because he could not perform
the essential functions of the job of an outside rig worker with or
without reasonable accommodation. We affirm this judgment.
II
To make out a prima facie case of discrimination under the
ADA, a plaintiff must show that (a) he has a disability; (b) he is
a qualified individual for the job to which he is applying; and
(c) that an adverse employment decision was made solely because of
his disability. Rizzo v. Children's World Learning Centers, Inc.,
84 F.3d 758 (5th Cir.1996).
Still has failed to demonstrate that he is disabled under the
statute. The ADA defines "disability" 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 impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(1).
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Still contends that his blindness in one eye is a "physical
impairment that substantially limits one or more of the major life
activities." Major life activities include "caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working." 29 C.F.R. § 1630.2(i). Still
concedes that he can care for himself, walk, hear, speak, breath,
and learn without impairment. He contends, however, that his
partial blindness qualifies as a disability because it
"substantially limits" his "seeing and working." This contention
is without record support.
There is no dispute that Still's remaining eye functions
normally. Moreover, although his peripheral vision is limited by
his partial blindness, Still is able to perform normal daily
activities. For example, he drives both cars and motorcycles, and
is a certified marksman. Still offers no evidence that he is
unable to engage in any usual activity because of his partial
blindness. Therefore, Still's sight is not "substantially
limited."
Moreover, Still is not substantially limited from working. A
person is substantially limited from working if he or she is
"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." 29 C.F.R. § 1630.2(j)(3)(I); Dutcher v. Ingalls
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Shipbuilding, 53 F.3d 723, 726 (5th Cir.1995).1
Still has introduced no evidence that he is significantly
restricted in performing any job, other than an outside rig worker.
To the contrary, his employment history demonstrates that Still has
worked as a security officer for the United States Department of
the Navy. He also has served as Acting Sergeant for the Jefferson
Parish Sheriff's Office, and Road Deputy for the Sheriff's Office.
1The regulations accompanying the ADA provide that
(I)
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.
(ii) In addition to the factors listed in paragraph
(j)(2) of this section, the following factors may
be considered in determining whether an individual
is substantially limited in 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,
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).
29 C.F.R. § 1630.2(j)(3); Ellison v. Software Spectrum, Inc.,
85 F.3d 187, 192 (5th Cir.1996).
4

He currently works one day a month as a reserve officer for the
City of Gretna, and has held this position for twelve years. These
positions require Stills to be involved in strenuous and
potentially dangerous work. Still has also worked as a sales
representative for an oil company. He is certified as an Emergency
Medical Technician. Currently, Stills works as a field accountant.
This wide variety of work experiences demonstrates that Still is
able to perform a "broad range" of jobs, and is not legally
disabled.
III
Even if there was record evidence that Still was disabled, we
would still affirm the district court's judgment. The district
court held that Still was not a "qualified individual" under the
ADA. Before a plaintiff may prevail under the ADA, it must be
shown that the plaintiff is qualified to perform the job he or she
holds or desires.
There is no dispute that Still's job as a warehouse clerk at
the Caminada Mine was eliminated when the plant was closed.
Freeport had no contractual or statutory obligation to create a new
job for him at another location. See White v. York Int'l Corp., 45
F.3d 357, 362 (10th Cir.1995) (noting "the ADA does not require an
employer to promote a disabled employee as an accommodation, nor
must an employer reassign the employee to an occupied position, nor
must the employer create a new position to accommodate the disabled
worker.") (citing 29 C.F.R. pt. 1630, App. § 1630.2(o)); Gile v.
United Airlines, Inc., 95 F.3d 492, 498 (7th Cir.1996).
5

Nonetheless, Freeport did offer him a job as a rig worker. Still
contends, however, that he is not qualified to perform the basic
requirements of the job. He also maintains that no reasonable
accommodation would allow him to perform the basic tasks required
of a rig worker. Therefore, by his own admission, Still was not
qualified for the position.
For the foregoing reasons, we AFFIRM the summary judgment
entered by the district court.
AFFIRMED.

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