53 F.3d 723 (5th Cir. 1995), 94-60499, Dutcher v. Ingalls Shipbuilding

Docket Nº:94-60499
Citation:53 F.3d 723
Party Name:Tamela J. DUTCHER, Plaintiff-Appellant, v. INGALLS SHIPBUILDING, Defendant-Appellee.
Case Date:June 05, 1995
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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53 F.3d 723 (5th Cir. 1995)

Tamela J. DUTCHER, Plaintiff-Appellant,



No. 94-60499

United States Court of Appeals, Fifth Circuit

June 5, 1995

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James Clayton Gardner, Sr., Marie Paulette Turner, Sabrina Johnson, Pascagoula, MS, for appellant.

Brooks Eason, Brunini, Grantham, Grower & Hewes, Jackson, MS, Robert J. Ariatti, Jr., William J. Powers, Jr., Pascagoula, MS, for appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before POLITZ, Chief Judge, JOLLY and BENAVIDES, Circuit Judges.

POLITZ, Chief Judge:

Tamela J. Dutcher appeals an adverse summary judgment in her suit against her former employer, Ingalls Shipbuilding, Inc., for discrimination under the Americans with Disabilities Act. 1 We affirm.


On November 27, 1989 Dutcher sustained serious injury to her right arm in a gun accident. After extensive repair surgery, Dutcher began training as a welder, hoping

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thereby to prevent deterioration in the use of her arm. In July of 1991 she completed welding school and was hired by Ingalls.

Ingalls initially assigned Dutcher to the "bay area," a job requiring welders to climb as much as 40 feet to reach their work. On her second day of work Dutcher requested a transfer to the fab shop, an assignment involving little or no climbing, because of difficulties she experienced due to the injury to her arm. The request was denied because she had insufficient seniority to transfer to a fab shop position.

During the following month Dutcher worked in the bay area without any time off because of problems with her arm. At the end of that month, however, she secured a transfer to the fab shop because of her father's influence with the welding superintendent. She worked as a welder in the fab shop, or similar assignments, until laid off as part of a large-scale reduction in force in May 1992.

Ingalls recalled Dutcher on September 8, 1992 at which time she was told to report to the infirmary for a pre-employment physical. She advised the examining doctor that the condition of her arm prevented her from climbing and that she needed a job which did not require such. The doctor gave Dutcher the requested job restriction. Ingalls then advised Dutcher that it could not then employ her in light of the job restriction.

Dutcher contacted Ingalls' labor relations office which asked her to provide a current medical report on her arm. Five weeks later she returned with the requested information. Ingalls asked for an explanation of the delay and while reviewing the proffered reasons experienced another reduction in force resulting in every welder in Dutcher's job classification being laid off.

On June 21, 1993 Dutcher filed the instant action, asserting that Ingalls violated the ADA by refusing reinstatement in September of 1992 to her job in the fab area. The district court entered summary judgment in favor of Ingalls, finding that the impairment of Dutcher's arm did not qualify as a "disability" under the ADA. Dutcher timely appealed.


We review a grant of summary judgment applying the same standard as the district court. 2 Summary judgment is proper when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fact questions are viewed in the light most favorable to the nonmovant and questions of law are reviewed de novo.

Dutcher contends that the district court erred when it concluded that she does not have an ADA-qualified disability. She maintains that when the summary judgment evidence on the extent of her disability is viewed in the most favorable light that there is a genuine issue of material fact whether her injured arm qualifies as a disability.

The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 3 The term "disability" as used in the ADA means:

(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. 4

The ADA restricts the meaning of impairment; the parties, however, do not dispute that Dutcher's gun accident left her with a permanent impairment within the meaning of

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the statute. 5 Dutcher, however, misconstrues the significance of this finding. A physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA. The statute requires an impairment that substantially limits one or more of the major life activities.

The ADA defines neither "substantial limits" nor "major life activities," but the regulations promulgated by the EEOC under the ADA provide significant guidance. These regulations adopt the same definition of major life activities as used in the...

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