Tuten v. Clariant Corporation ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GEORGE D. TUTEN,
Plaintiff-Appellant,
v.
No. 98-1299
CLARIANT CORPORATION, formerly
known as Sandoz Chemical
Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CA-96-2487-9-8AJ)
Argued: December 2, 1998
Decided: March 15, 1999
Before ERVIN and NIEMEYER, Circuit Judges, and
HILTON, Chief United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Marion Clyde Fairey, Jr., SPEIGHTS & RUNYAN,
Hampton, South Carolina, for Appellant. John Hagood Tighe,
ELLZEY & BROOKS, L.L.C., Columbia, South Carolina, for Appel-
lee. ON BRIEF: Jonathan P. Pearson, Stephen C. Mitchell, Nicole P.
Cantey, ELLZEY & BROOKS, L.L.C., Columbia, South Carolina,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
George Tuten was fired as a chemical operator for Clariant Corpo-
ration because he could not tolerate the levels of sulfur dioxide pres-
ent in his workplace and because Clariant had no other job opening.
Tuten filed this action under the Americans with Disabilities Act
("ADA"), alleging that even though he was not disabled within the
meaning of the ADA, Clariant regarded him as disabled. The district
court granted Clariant's motion for summary judgment because,
although Tuten could not perform his job as a chemical operator, he
presented no evidence that Clariant regarded him as being substan-
tially limited in his ability to perform a wide range of jobs. We affirm.
I
Tuten worked as a chemical operator at Clariant, handling various
chemicals, some of which produce sulfur dioxide as a by-product.
After working in this position for approximately 16 months, Tuten
complained, during a physical exam on September 29, 1993, that even
brief exposure to the chemicals that produce sulfur dioxide aggra-
vated his asthma, making him wheeze and become short of breath,
and causing a tightness in his chest. Nevertheless, Tuten continued
performing his job. Again, during a regular respiratory exam on June
15, 1994, Tuten complained that he experienced shortness of breath
and a sharp pain in his side when he was exposed to sulfur dioxide.
Between July 14 and December 7, 1994, Tuten reported eight attacks
of chest pain, one of which was so severe that he had to go to the hos-
pital.
2
In late September 1994, Tuten was advised by a doctor that he
should not be exposed to sodium hydrosulfite (a chemical for which
sulfur dioxide is a by-product) unless wearing a negative pressure res-
pirator. Tuten did not wear a respirator because either he (as Clariant
claims) or the plant safety officer (as Tuten claims) concluded that
wearing a respirator all day would be too strenuous.
Because of the recurring attacks of chest pain, Clariant moved
Tuten out of the production building in which he worked and assigned
him temporarily to an administration building where he performed
clerical duties and odd jobs. But after about two and a half months,
Clariant determined that it had no permanent position for Tuten.
When Clariant presented Tuten with a document proposing a mutual
termination of Tuten's employment, Tuten refused to sign it, and
Clariant then fired him. A few months later, Tuten acquired a job with
another company, working as a utility man with fiberglass poles.
Tuten filed this action, alleging that Clariant's termination of his
employment violated the ADA, 42 U.S.C. § 12101 et seq. The district
court granted Clariant's motion for summary judgment, and this
appeal followed.
II
The ADA protects three classes of persons against discrimination
based on disability: (1) persons who have "a physical or mental
impairment that substantially limits one or more . .. major life activi-
ties;" (2) persons who have "a record of such an impairment;" and (3)
persons who are "regarded as having such an impairment." 42 U.S.C.
§ 12102(2). Tuten concedes that he is not currently, nor has he ever
been, limited in any major life activity. While Tuten's asthma condi-
tion prevents him from working as a chemical operator in Clariant's
chemical production building, it does not disqualify him from a range
of employment. The inability to do one particular job does not consti-
tute a substantial limitation on the major life activity of working. See
Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 1994) (holding that
plaintiff's allergy to tobacco smoke, while making it impossible to
continue in the particular job she had held, did not limit the major life
activity of working); see also Williams v. Channel Master Satellite
Sys., 101 F.3d 346, 349 (4th Cir. 1996) (holding that, as a matter of
3
law, a 25-pound lifting limitation does not limit any major life activ-
ity); Forrisi v. Bowen, 794 F.2d 931, 934-35 (4th Cir. 1986) (noting
that under the Rehabilitation Act, a person is not considered handi-
capped because of the inability to perform a particular job).
Tuten contends, however, that he falls under the protection of the
ADA, claiming that Clariant regarded him as a person with a disabil-
ity. "[T]he ADA protects from employment discrimination individu-
als who are regarded or perceived, albeit erroneously, as having an
impairment that substantially limits one or more of the major life
activities." Runnebaum v. NationsBank, 123 F.3d 156, 172 (4th Cir.
1997) (en banc). Thus, an employee is protected by the ADA if the
employer takes adverse employment action against him"because it
perceived him to be significantly restricted in his ability to perform
either a class of jobs or a broad range of jobs in various classes."
Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 303 (4th Cir. 1998); see
also 29 C.F.R. § 1630.2(1)(1) (stating that a person is regarded as dis-
abled if he "[h]as a physical or mental impairment that does not sub-
stantially limit major life activities but is treated by a covered entity
as constituting such limitation"); Ryan v. Grae & Rybicki, P.C., 135
F.3d 867, 872 (2d Cir. 1998); Sutton v. United Air Lines, Inc., 130
F.3d 893, 904 (10th Cir. 1997); Foreman v. Babock & Wilcox Co.,
117 F.3d 800, 806 (5th Cir. 1997); see generally Deane v. Pocono
Med. Ctr., 142 F.3d 138, 144-45 (3d Cir. 1998) (reversing a grant of
summary judgment in favor of an employer only because there was
"a genuine issue of material fact as to whether[the employer]
regarded [the employee] as substantially limited in the major life
activity of working").
There is no evidence in the record before us that Clariant viewed
Tuten as significantly restricted in his ability to perform a class of
jobs or a broad range of jobs in various classes. To the contrary, the
evidence suggests that Clariant believed, correctly, that Tuten's con-
dition precluded him from working as a chemical operator in Clar-
iant's chemical production plant but did not prevent him from
working at other jobs. This is evidenced by the fact that Clariant gave
Tuten work in an administration building and attempted to find him
a permanent position that would not involve exposure to sulfur diox-
ide or other chemicals.
4
In advancing a theory of liability under the ADA, Tuten distorts
Clariant's concern over his exposure to sulfur dioxide as a concern
that Tuten cannot tolerate any sulfur dioxide, even the small amounts
present everywhere in the air. Tuten points to an internal memoran-
dum from Clariant's production supervisor who, concerned about
finding a way to enable Tuten to do his job without experiencing
chest pain, wrote: "Due to medical reasons, [Tuten] cannot be
exposed to SO2." But there is no evidence that Clariant perceived
Tuten as unable to tolerate air generally or as unable to work in a
broad range of jobs, and its response of moving Tuten from the chem-
ical production plant to the administration building indicates to the
contrary.
Because Tuten failed to present evidence that Clariant regarded
Tuten as substantially limited in working generally outside of the
chemical production plant, he has not established that he is covered
by the ADA. The district court's judgment is therefore
AFFIRMED.
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