Charles Irvin Littleton, Jr. v. Wal-Mart Store , 231 F. App'x 874 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 11, 2007
THOMAS K. KAHN
CLERK
No. 05-12770
D.C. Docket No. 04-00066-CV-AR-S
CHARLES IRVIN LITTLETON, JR.,
Plaintiff-Appellant,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Alabama
(May 11, 2007)
Before BIRCH and BLACK, Circuit Judges, and MILLS,* District Judge.
PER CURIAM:
*
Honorable Richard Mills, United States District Judge for the Central District of Illinois,
sitting by designation.
Charles Irvin Littleton, Jr. appeals the district court’s order granting Wal-Mart
Store, Inc. summary judgment on his failure-to-hire disability discrimination claim
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12112, 12132.
Littleton claims that the district court erred in finding that he was not disabled under
the ADA because his permanent condition of mental retardation limits one or more
of his major life activities, namely (1) learning, (2) thinking, (3) communicating, (4)
social interaction, and (5) working. We assume the parties’ familiarity with the facts
and procedural history of this case.
I. BACKGROUND
On appeal, Littleton claims that there is at least a genuine issue of material fact
tending to show that his mental retardation substantially limited him as to certain
major life activities. Regarding the major life activities of learning, thinking,
communicating and social interaction, Littleton contends that the district court failed
to consider the following evidence in the light most favorable to him: (1) testimony
from his job coach and mother concerning his limited ability to think and
communicate; (2) Wal-Mart personnel manager Marlene Barcanic’s awareness of
Littleton’s limitations and need for assistance during the interview process; (3)
observations of Wal-Mart interviewers that Littleton displayed poor interpersonal
skills and a lack of enthusiasm about the job; and (4) his deposition testimony, which
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showed that he had limited cognitive abilities and difficulty navigating the interview
process. Based on these factors, Littleton argues that a reasonable jury could infer
that he is disabled under the ADA.
Charles Irvin Littleton, Jr. is a 29-year old man who was diagnosed with mental
retardation as a young child. Littleton receives social security benefits because of his
disability and lives at home with his mother. He graduated from high school in 1994
with a certificate in special education. Throughout his working life, Littleton has
been a client of various state agencies and public service organizations. He was
referred to Carolyn Agee, an employment coordinator with the Alabama Independent
Living Center. They attempted to secure employment for Littleton as a cart-push
associate with a Wal-Mart Store in Leeds, Alabama. Littleton claims that Barcanic,
the personnel manager at that store, initially said that Agee could accompany him in
the interview. Upon arrival at the store, however, Agee was not allowed to
accompany Littleton in the interview. The interview did not go well and Littleton
was not offered a position.
II. DISCUSSION
“We review de novo a district court’s ruling on summary judgment, applying
the same legal standards as the district court.” Matthews v. Crosby, 480 F.3d 1265,
1268 (11th Cir. 2007) (citation omitted). The Court views the evidence in the light
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most favorable to the nonmoving party. Id. at 1269. Summary judgment is
appropriate if the evidence shows that “there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
To establish a prima facie case of disability discrimination under the ADA, a
plaintiff must show (1) that he has a disability; (2) he is a qualified individual; and
(3) he was discriminated against because of his disability. See Cleveland v. Home
Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). If Littleton
establishes a prima facie case, a presumption of discrimination arises and the burden
shifts to Wal-Mart to proffer a legitimate, non-discriminatory reason for the
employment action. Id. If Wal-Mart meets its burden, then Littleton must show that
the proffered reason is a pretext for discrimination. Id.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(2). To prove that he is disabled due to an impairment, a plaintiff
must prove that the impairment, as personally suffered by him, substantially limits a
major life activity. See Pritchard v. Southern Co. Services, 92 F.3d 1130, 1132 (11th
Cir. 1996) (citing 29 C.F.R. § 1630.2(j) (App.)). Under the “regarded as” prong of
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section 12102(2)(c), an individual is “disabled” if his employer perceives him as
having an ADA-qualifying disability. See Carruthers v. BSA Advertising, Inc., 357
F.3d 1213, 1216 (11th Cir. 2004).
Littleton asserts that: (1) he is substantially limited in the major life activities
of learning, thinking, communicating, social interaction and working; and (2) Wal-
Mart perceived him as being substantially limited in working, communicating, and
social interaction. Courts look to the ADA’s implementing regulations to determine
the functions that qualify as “major life activities.” We are mindful that the Supreme
Court has stated that the term “disability” is to be “interpreted strictly to create a
demanding standard for qualifying as disabled.” See Carruthers, 357 F.3d at 1216(quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002)). The
regulations provide that mental retardation qualifies as a “mental impairment.” See
29 C.F.R. § 1630.2(h)(2). Major life activities include “functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” See 29 C.F.R. § 1630.2(i). This court has not determined
whether thinking, communicating and social interaction constitute “major life
activities” under the ADA.
In his appellate brief Littleton asserts that the district court did not consider
evidence pertaining to limitations on his ability to think and communicate. After
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reviewing the record, however, we conclude that Littleton failed to argue before the
district court that there were any limitations on his ability to think and communicate,
nor did he contend he was substantially limited as to any other alleged major life
activity. This is true even though Wal-Mart asserted that it was entitled to summary
judgment because Littleton could not establish a prima facie case under the ADA, in
that he was unable to show he was substantially limited in any major life activity.
Because Littleton produced no evidence on this point, the district court properly
concluded that “Wal-Mart is entitled to judgment as a matter of law here because
there is no evidence to support Littleton’s necessary contention that his retardation
substantially limits him in one or more major life activities.” See, e.g., Williams, 534
U.S. at 195 ( “Merely having an impairment does not make one disabled for purposes
of the ADA. Claimants also need to demonstrate that the impairment limits a major
life activity.”).
We generally do not consider issues that were not raised before the district
court. See Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir. 1994). Even if the issue
was properly raised, we conclude that Wal-Mart is still entitled to summary judgment
because Littleton has failed to produce any evidence that his mental impairment
substantially limited any major life activities.
As for the major life activity of working, “[t]he term substantially limits means
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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.” See 29
C.F.R. § 1630.2(j)(3)(i). Littleton, his mother and Agee all testified that there are no
jobs he cannot perform because of any alleged disability. Accordingly, Littleton has
not shown that he is substantially limited in this major life activity.
“Learning” is also a major life activity, see 29 C.F.R. § 1630.2(i), so we must
determine whether there is a genuine issue of material fact regarding whether
Littleton’s ability to learn is substantially limited by his mental retardation. Wal-Mart
acknowledges that Littleton’s mental retardation is a permanent condition, which is
a factor that courts consider in determining whether an individual is substantially
limited in a major life activity. See 29 C.F.R. § 1630.2(j)(2)(ii)–(iii). After
graduating from high school with a certificate in special education, Littleton attended
a technical college and majored in mechanical maintenance. The record shows that
Littleton is able to read and comprehend and is able to perform various types of jobs.
It is apparent that Littleton is somewhat limited in his ability to learn because of his
mental retardation. However, he has pointed to no evidence which would create a
genuine issue of material fact regarding whether he was substantially limited in the
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major life activity of learning because of his mental retardation.
It is unclear whether thinking, communicating and social interaction are “major
life activities” under the ADA. We acknowledge that a review of Littleton’s
deposition testimony is not inconsistent with his assertion that he sometimes has
difficulty thinking or communicating. Even if thinking and communicating are major
life activities, however, Littleton has not shown that he is substantially limited in
those activities. As Wal-Mart contends, moreover, the fact that Littleton drives a car
might be determined to be inconsistent with his assertion that his abilities to think and
learn are substantially limited. Additionally, Littleton’s mother and Agee testified
that Littleton is capable of being interviewed for a job without any accommodation,
is “very verbal,” and would not need a job coach to communicate effectively with
other people in the workforce. This bolsters Wal-Mart’s contention that any difficulty
Littleton has with communicating does not appear to be a substantial limitation.
We do not doubt that Littleton has certain limitations because of his mental
retardation. In order to qualify as “disabled” under the ADA, however, Littleton has
the burden of proving that he actually is, is perceived to be, or has a record of being
substantially limited as to “major life activities” under the ADA. 42 U.S.C. §§
12102(2)(A), 12112(a), 12132; see also Hilburn v. Murata Electronics North
America, Inc., 181 F.3d 1220, 1227 (11th Cir. 1997). Assuming that thinking,
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communicating and social interaction are “major life activities” under the ADA, we
conclude that Littleton has failed to create a genuine issue of material fact that he is
substantially limited in those pursuits. Thus he has failed to assert a prima facie case
of discrimination under the ADA.
We AFFIRM the district court’s entry of summary judgment in favor of Wal-
Mart.
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