*1 AFFIRM.2 ARTHUR, Plaintiff-Appellant

Kris COMPANY,

BNSF RAILWAY

Defendant-Appellee

No. 16-10270 Appeals, Court of

United States

Fifth Circuit. July

Filed appeal DENIED as moot. Vallery's expedite motion to *2 Parker, Darryl Rights Civil Cen- Justice ment medical examination physical- and a ter, P.L.L.C., Seattle, WA, for Plaintiff- capability Comprehensive test. Health Ser- Appellant (“CHS”), vice a medical services contractor BNSF, for coordinated pre-em- BNSF’s Neal,

Bryan Patrick Thompson & ployment process, medical-evaluation in- L.L.P., Dallas, TX, Knight, for Defendant- cluding a assessing test strength and Appellee range of prospective employees’ motion DENNIS, DAVIS, Before and shoulders and Arthur initially knees. failed SOUTHWICK, Judges. Circuit test, it, this but after she retook CHS found that she met the physical “minimum * DAVIS, W. EUGENE Judge: Circuit demands the essential functions As- Kris Arthur filed this discrimination Signal[person].” sistant Arthur also com- suit, alleging that Railway Compa- pleted physical examination and a medi- (“BNSF”) ny refused hire her because it questionnaire. cal regarded her as “disabled” within the meaning of the Americans with CHS Disabilities submitted Arthur’s medical infor- (“ADA”). Act The granted Jarrard, district mation to court Dr. Michael who was motion for summary judgment, BNSF’s responsible making for medical-qualifica- holding regard that BNSF did not tion decisions for BNSF candidates. as disabled under the ADA. Because we information transmitted includ- find that Arthur present failed to an issue by *3 BNSF consid- material fact as whether evaluations, Sep-

After her medical ADA. under the ered her “disabled” 2006, 28, notified Jarrard tember currently email that she was “[n]ot via safety sensi-

medically qualified [the] II. Signalman position due tive Assistant of grant risk a district court’s potentially] significant associat- We review [the] de novo.1 right Summary of summary judgment with chronic condition [her] ed syndrome based arm and cervical thoracic if is no judgment appropriate is “there pain episode.” arm on recent neck and material fact and genuine dispute as be continued that could judgment as a the movant is entitled if for this she re- reconsidered reviewing of a sum- matter law.”2 When or symptoms mained “free recurrent decision, mary judgment “[t]he evidence 6 months.” He treatment for at added least believed, nonmovant is to be and all “may qualified that she for other BNSF justifiable inferences are be drawn dispatcher, at this positions time such favor.”3 [her] master, yard etc.” Arthur submitted a note response, III. surgeon stating that her neck from her applicable was not chronic and ADA and shoulder The version of the that, knowledge, to the best of his she had it for an Arthur’s case4 makes unlawful “pain symptom since [March been free regard to employer to discriminate with 10, Arthur also submitted a note 2006].” hiring “a individual with disabil- therapist stating that she physical from a disability of ity because of the such individ- February 2006 and last treated Arthur ‘disability’ ... ual.”5 “The means term reported being pain-free that Arthur had or that sub- physical impairment mental March 2006. reverse since BNSF did major stantially limits one or more its decision. “being or life activities of such individual” having impairment.”6 such an exhausting

After administrative substantiality “The of a limitation is ana- remedies, against Arthur filed this lawsuit (1) lyzed regard to: the nature and things, that alleging, among other (2) severity impairment, its duration by denying ADA BNSF violated the (3) duration, expected perma- employment it her as or its because Holder, 231, regulations prior the ADA Kemp law and in effect 1. apply. Act of 2008 See Milton v. Amendments 2010). Justice, 570, Dep’t Tex. Crim. 56(a). 2. Fed. R. Civ. P. 2013) (ADA Act is n.2 Amendments retroactive). Thus, authority cited — —, Cotton, S.Ct. U.S. 3. Tolan v. herein reflects the unamended law. 1861, 1863, (2014) (quoting L.Ed.2d 895 Inc., Liberty Lobby, Anderson v. 477 U.S. (2006). 12112(a) (1986)). 5. 42 U.S.C. 106 S.Ct. 91 L.Ed.2d 202 agree parties the events at 4. that because 12102(2). Id. place statutory issue before took expected permanent nent or long-term regulations or provide temporary, non- impact.”7 impairments duration, chronic of short or no permanent long-term with little im-

To regard having an individual as dis- pact usually are not disabilities.”11 It is ability, employer an must “believe either also true that Compliance “[t]he EEOC substantially [the has a individual] Manual impairment indicates limiting impairment that [the individual] expected limits to sub- does not have or that has a [the individual] stantially limit a activity when, limiting impairment fact, whose ‘duration impairment is not so is indefinite limiting.”8 and unknow- purposes defining disability, expected For or is “major able to be at least several life activities” include reaching lifting qualifies months’ as a disability under the *4 objects, as working.9 argues well as ADA.”12 Arthur The six-month timeframe Jarrad regarded that BNSF her as substantially imposed on Arthur’s reevaluation was a respect limited to with the activ- condition, temporary not an indefinite of lifting, ities reaching, working. and unknowable duration. Jarrad testified in his deposition imposed that he this condi- Lifting Reaching A. tion because Arthur temporarily “was not First, we lifting address Arthur’s significant because of the risk of reaching argues claims.10Arthur that injury an herself coworkers.” Jarrad suggestion qual BNSF’s that could she explained signal- that the newest assistant “light” coupled ified for certain jobs, with person starts at the lowest level seniori- BNSF’s statement that “eligi Arthur was ty given jobs and is the duty heaviest like positions ble other that with BNSF are ditches, “digging moving physically demanding,” less is sufficient components, working very heavy bat- evidence genuine of mate create issue teries, ... or ... climbing ladders.” Be- rial fact toas whether BNSF considered cause the signalpersons in do work her ability limited to isolation, said, if experi- Jarrad Arthur objects. lift and reach “flare-up” enced a or a “sudden burst pain,” Viewing light she dropped something evidence most could have Arthur, favorable sug- we find that and been a risk to herself and others. gestion that regarded she was as that imposed limited Jarrad testified he six- to lift objects and reach month waiting period was due her then- temporary. have that pain, We noted “EEOC recent neck arm which could 12102(2)(A); Dupre Sys. 7. v. § Charter app.) Behavioral Health U.S.C. 1630 29 C.F.R. Inc., 610, (5th Lafayette, (noting 242 F.3d 614 Cir. that courts should address limitation 2001) (quoting Shipbuild- Ingalls v. Dutcher on other life activities before limitation on 723, (5th 1995)). ing, 53 F.3d working). 726 Cir. Lines, Inc., Co., 8. v. Sutton United U.S. Air 527 11. Sw. Bell Hamilton v. Tel. 136 F.3d 471, 489, 2139, 1047, (5th 1998) 119 S.Ct. 144 L.Ed.2d 450 (quoting Rogers 1051 Cir. v. (1999). Terminals, Inc., 755, Int’l Marine 759 (5th 1996)). Cir. Co., (5th Ray v. Glidden 229 1996) (citing Ingalls Shipbuild- Cir. Co., v. Dutcher Phillips 12. EEOC v. Chevron Chem. 570 (5th 1995)). ing, 53 F.3d 2009) n.7 Cir. (quoting F.3d DURA- IMPAIRMENT, TION AND IMPACT OF (2007) Ingalls Shipbuilding, 10. See Dutcher EEOC COMPLIANCE MANUAL 1995) 902.4(d)). (citing F.3d 726 n.10 ment, argues, to BNSF Arthur amounts period after that completely subside perform- from regarding her as restricted time. jobs, ing heavy-duty medium- and Therefore, presented evi- Arthur has fact that there is an issue demonstrates disagree. dence The evidence substan- regarded she was as for the Arthur only BNSF evaluated demonstrate or lift tially conditionally reach hired position she was one not to BNSF’s decision not all heavy- objects for, because signalperson, assistant Therefore, temporary clear, her was a one. hire testi- duty jobs. The Jarrad record she was evaluating has not shown she fied, only “I what was know respect. in this offered, disabled for, she was which is what posi- was the which Working B. give pressed tion.” When evi argues Arthur also qualified for a track whether genuine of material shows issue dence heavy-duty-job, position, laborer another as to BNSF considered fact whether said, prodding and significant Jarrad after in her to work he “most requests speculation, quali only her as because likely” medi- would found have jobs light-duty to perform fied classified cally qualified the time “because *5 work, excluding thereby her from medium- not are heavy job.” of that nature jobs. heavy-duty and to enough is that this persuaded statement Jarrad of fact. create an issue material perceived is applicant An as substantial question and hypothetical a answered if is her to she ly limited work evalua- likely to his speculated as medical in the “regarded ‘significantly as restricted response. find that tion in his We also perform jobs either of or to a class that Arthur suggestion via email Jarrad’s range jobs of as various classes a broad may qualified jobs for that were be other average having person to the compared 13 merely positions a was light-duty work training skills comparable and abilities.’” jobs-with BNSF list other suggested jobs ‘jobs utilizing “A class includes for. might Once qualified that be Arthur training, skills or abili knowledge, similar ”14 symptoms free of and Arthur remained ties, geographical area.’ that within months be for six she would treatment perform who cannot Someone eligible for assistant reevaluated be job substantially would be labor signalperson position. able to ability work if she was even perform another class of labor.15 IV. the email written points sum, medically was that her not BNSF determined declared

Jarrad medically position for signalperson po- qualified not the assistant period sition, signalperson for say quali- assistant a limited “may that she but did be period, of six she could positions at this time months. After that other BNSF fied master, etc.,” position if she for the re- dispatcher, yard be as reevaluated such or symptoms state- free of recurrent light-duty jobs. work This mained are which Sutton, Bossier, Bridges City (quoting 334 13. Kemp, 238 v. F.3d at 1996) (quoting 2139) C.F.R. (emphasis 119 S.Ct. 527 U.S. at 1630.2(j)(3)(ii)(B)). § omitted). 1630.2(j). app. § 15. 29 C.F.R. ^[00] CO t—4 temporary treatment. This pairment medical dis- substantially limits or is ex- from qualification one pected did con- limit activity stitute an from all exclusion and whose other medium- ‘duration is indefinite heavy-duty jobs. expected Because Arthur unknowable did at qualifies least several raise issue material fact to months’ dem- a disabil- ity ADA,” under the onstrate EEOC BNSF as dis- Chevron Phillips Co., LP, Chem. ADA, abled under the judgment of the 2009) (quoting Duration district court is AFFIRMED. and Im- EEOC pact op Compliance Impairment, DENNIS, JAMES L. Circuit Judge, (2007) § 902.4(d)), the majority Manual dissenting in part: opinion states that “[t]he six-month time- Arthur’s fully perceived majority opinion as it relates to Arthur’s reach, thur has not established a not dispositive, explained abilities Furthermore, I cannot of fact as to seq. clear that we should consider the basis cause it Company Kris Arthur hiring majority opinion’s meaning (2006), dissent perceived Act agree ability ability to in more detail (BNSF) decision. work. inasmuch as it considered her (ADA), from that BNSF argues that her claim fails because to reaching as our the Americans with Dis- duration of Although refused to hire her be- perform work. For the judgment of conclusion that Ar- U.S.C. these precedents below, “disabled” material only a single job lifting issue, reasons, agree I evaluated 12101 et respect- Railway dispute injury. within make lift, for, as Arthur’s reevaluation began in least frame [Dr. 829. But Jarrard said position of proximately eight *6 that “she had done some heavier work” exclude Arthur from consideration for the definite or unknowable least six prior to a flare-up of her condition earlier that enced his assessment and that he took into ac- have surgery within cate that sis count that Arthur [she which for her being year. held that where an individual could] show intermittently, symptoms stated months, time he would 2003 and her treated her Arthur’s medical records indi- Michael] Jarrard relapsing-remitting injury that he “typical” months, through March of over the for chronic had period was and attendant through 2006. We pain persisted, reconsider duration,” believed Arthur and the time frame and recovered he ... not course of of stability.” imposed intended to condition prior progno- experi- her “if Op. at for at an in- from ap- majority holds that BNSF could unclear, summary judgment was dismiss- not substantially have considered Arthur ing plaintiffs ADA not ap- was claim limited in ability her to lift or reach be- propriate. Phillips See Chevron Chem. disqualification posi- Co., cause her from the Thus, 570 I not F.3d at 618-19. do of tion signalperson only was perceived believe that Arthur’s limitation temporary. noting After that EEOC categorically ephemeral “[t]he was too consti- to Compliance Manual indicates that an im- a disability tute of purposes the ADA.1 majority opinion 1. The appears requirement elude to influ- a an individual that shall enced pose BNSF’s claim cannot it have or safety a direct to the health threat regarded Arthur as workplace,” disabled because it con- of other individuals in the 42 ADA, 12113(b) (2006), safety sidered her a risk. purposes Under the U.S.C. but employer’s qualification "may appeal, expressly standards im- this BNSF has disavowed 832 Holder, See, Kemp v.

Nevertheless, job. e.g., majority ticular agree I with the However, (5th 2010). it of this issue F.3d Cir. resolution opinion’s ultimate evi- cannot have presents competent no not follow that BNSF because does substan- substantially that BNSF considered her limited dence Arthur as to tially her reach limited only to because it dis- work her Ar- lifting, respect to at best lift. With single position. from her a qualified that BNSF establishes thur’s evidence regarding evidence the ba- must consider to lift her limited considered disqualification, not the mere sis for the heavy objects, this is one of the duties City v. disqualification. fact of Tullos signalperson. As a matter of the assistant (5th Bay, Fed.Appx. Nassau law, heavy lifting on ... a “restriction 2005), based on an em- Cir. we concluded jury for a alone is insufficient reasonable plaintiff im- ployer’s had belief limitation on a to find a substantial rage pulse control and disorders that Airlines, activity.” v. Am. Sherrod reasonably infer” that the em- “jury could (5th 1998); Inc., 1112, 1120 Cir. 132 F.3d “pre- perception plaintiff ployer’s Co., Ray see Glidden essentially any job involving inter- cluded 1996) (restrictions heavy lift- Similarly, in Deas v. others.” action with plaintiff was ing did not establish W., L.P., & 481-82 River disability having because the 1998), that even n.24 we found inability perform lifting did un- though plaintiff only was deemed him in the ma- render job of perform specific addic- able activity lifting). respect With jor life hospital’s substance tion technician at reaching, while BNSF considered her un- unit, because the basis abuse treatment signal- perform the assistant inability disqualification for her was no person position, there is evidence that the em- uninterrupted vigilance, maintain unqualified because BNSF considered her perform her unable ployer considered reach; inability specifical- Jarrard required “high vigilance jobs that levels of “limi- ly noted BNSF did find uninterrupted awareness.” joints.” tations in the motions agree that Arthur has not creat- therefore Here, disquali- that the there is evidence of fact as to was ed an issue whether she than the assistant fication broader regarded as position. testified *7 objects. or to reach lift Arthur from disqualify that the decision signalperson position was the assistant majority opinion The next holds that, light opinion on his evi- based Arthur not created a material issue of has some heavier that Arthur “had done dence as to her as fact whether BNSF condition, of her flare-up work” before inasmuch as it considered her disabled position “put “heavy the demands” in her to work. substantially limited injury. at risk” of Jarrard could respectfully disagree. employer I An does [Arthur] disqualification his of Ar- say whether simply regard employee as disabled any “specific demands” thur was based employee incapable because it the finds position, or singular par- signalperson the assistant satisfying demands of a 1630.2(Z).Thus, 1630, App. § argument posed See 29 C.F.R. that Arthur a "direct herself or as an presented threat” to others alternate direct threat to whether basis for affirmance. Unfounded concerns should be irrelevant our herself others insurance, "safety, liability” about can be [or] analysis. support "regarded sufficient claims. as” general his more concerns about physical job.

“heavy demands” of the fairly summary judg-

cannot at assume stage that his strict- ment assessment was America, UNITED STATES po- ly the assistant Plaintiff-Appellee by opinion, majority sition: as noted likely Jarrard testified that he have would disqualified heavy Arthur from another la- GOMEZ-VALDIVA, Hernan “heavy

bor at position BNSF based on the Defendant-Appellant job.” of that majority nature No. 15-41463 “spec- dismisses Jarrard’s statement response hypothetical “a ulation]” of Appeals, United States Court not, Op. question.” Speculative at 830. Fifth Circuit. Jarrard’s statement would not he have Arthur for la- cleared another September Filed “heavy bor to its BNSF due reasonably supports

nature” an inference basis disqualifying

that his signalperson position

from the assistant singular than was broader demands Reed, Attorney, John A. Assistant U.S. particular position. Viewing the evi- Mitchell, Carmen Castillo Assistant U.S. to Ar- light dence in the most favorable Office, Attorney’s Attorney, U.S. Southern thur, testimony I believe that Jarrard’s Texas, Houston, TX, District of for Plain- material whether dispute raises a as to tiff-Appellee to per- Arthur as unable Cervantes, Esq., Of- Gabriel Marc Law any heavy position. form labor Cervantes, P.L.L.C., Corpus fice Marc * * * Christi, TX, Defendant-Appellant reasons, respectfully For these dissent DAVIS, COSTA, GRAVES, Before majority opinion from the it relates to Judges. Circuit claim Arthur’s that she was in her to work. PER CURIAM: his appeals

Heman Gomez-Valdiva eight-level adjustment under Unit upward Sentencing ed States Guideline (2014). 2L1.2(b)(1)(C) He contends finding plainly the district court erred con prior Georgia by taking” that a “theft *8 aggravated felony viction constitutes 2L1.2(b)(1)(C) purposes. Because err, district court did we AFFIRM judgement. district court’s 47.5, to 5th court has forth in Pursuant Cir. R. the limited circumstances set 5th that this not be determined should R. 47.5.4. except published precedent and is under notes ed nurses and CHS a BNSF of material to support fact that BNSF “Occupational complet- Assessment” form as-disabled, we AFFIRM the ed the doctor who examined Arthur for grant district of summary judg- court’s CHS, as well information from Arthur’s ment. orthopedic surgeon, primary physi- care cian, physical and therapist. Arthur’s medi- I. cal injury records that after an showed In April applied for multi- 2003, began she experiencing numbness ple positions BNSF, eventually receiv- right hand right and in her arm ing job for conditional offer having surgery and neck. After in August of “Assistant For Signalperson.” nearly 28 completing physical therapy and years, Arthur telephone had worked as a early right Arthur’s arm continued sig- technician An and lineman. assistant began having “prob- “bother[] her.” She nalperson responsible physical main- lems” left neck and shoulder after tenance of train signal equipment, which she did some manual labor around closely prior employ- related to her job farm performing and tele- started a ment. The signalperson job in- phone installation and maintenance. labor, physical including volves substantial surgeon orthopedic March Arthur’s trenches, digging climbing painting and advised her to “cut back a bit signal poles, heavy lifting. It is a right activities arm if possi- with the at all “heavy position. labor” resolve,” ble to ulnar allow the nerve to job Arthur’s offer surgeon was conditioned on return to the neces- when completion successful of pre-employ- sary. primary Arthur’s physician care 47.5, Pursuant to 5th Cir. R. has court the limited circumstances set forth in 5th determined this should R. 47.5.4. published precedent except and is under summary judg- September BNSF moved questionnaire out a disabled. filled pre- indicating being granted that Arthur was court BNSF’s The district ment. neuropathy, motion, for ulnar finding put scribed medication that Arthur did pain, right tendonitis. muscle genuine to create a issue forth evidence