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AS OF DEC 31, 2023 This case was green based on 72 citation events through that date. View current →
“several instances of shortness of breath when climbing stairs do not rise to the level of substantially limiting the major life activity of breathing”
72 citation events as of Dec 31, 2023.
Treatment trajectory · 1997 → 2026 · viewing as of 2023
1997 2011 2026
Top citers, strongest first. 40 distinct citers. (filtered to citers dated on or before 2023)
discussed Limited City of Houston v. Shayn A. Proler
Tex. App. · 2012 · confidence medium
See Waldrip, 325 F.3d at 656 (holding that evidence of temporary effects of pancreatitis did not amount to proof of an impairment that substantially limited a major life activity); Burch v. Coca-Cola Co., 119 F.3d 305 , 315–18 (5th Cir. 1997) (holding 5 evidence was insufficient to raise a fact issue as to whether plaintiff’s alcoholism was an impairment that substantially limited a major life activity); Foreman v. The Babcock & Wilcox Co., (holding employee’s heart condition with surgically implanted pacemaker did not substantially limit the major life activity of working); Robinson v. …
discussed Limited Garcia, Roel v. Allen, William Stuart, Hector Mario Garcia, and Hoechst Celanese Corp.
Tex. App. · 2000 · signal: see also · confidence medium
See also Robinson v. Global Marine Drilling Co. , 101 F.3d 35, 37 (5th Cir. 1996) (holding that individual with asbestosis who suffered only a few instances of shortness of breath while climbing stairs was not substantially limited in the major life activity of breathing); Penny v. United Parcel Serv. , 128 F.3d 408, 415 (6th Cir. 1997) (noting that cases make clear that moderate difficulty or pain experienced while walking does not rise to level of disability); Sherrod v. American Airlines, Inc ., 132 F.3d 1112, 1120 (5th Cir. 1998) (holding that plaintiff failed to establish that back injury…
discussed Cited "but see" Treadwell v. Dow-United Technologies
M.D. Ala. · 1997 · signal: but see · confidence high
But see Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996)(holding that in the case of a plaintiff with asbestosis, “a few instances of shortness of breath while climbing stairs____ do not rise to the level of substantially limiting the major life activity of breathing”).
discussed Cited as authority (verbatim quote) Miles-Hickman v. David Powers Homes, Inc. (2×) also: Cited as authority (rule)
S.D. Tex. · 2008 · quote attribution · 1 verbatim quote · confidence high
several instances of shortness of breath when climbing stairs do not rise to the level of substantially limiting the major life activity of breathing
discussed Cited as authority (rule) Spindle v. CKJ Trucking LP
E.D. Tex. · 2020 · confidence medium
But the conclusory allegation of shortness of breath, without more, is insufficient to establish a substantial limitation on a major life activity, see Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996) (holding that asbestosis, which reduced the plaintiff’s lung capacity by half and caused occasional shortness of breath, was not substantially limiting), particularly where Spindle has failed to provide any examples of shortness of breath or any explanation of how it substantially limits his abilities, see Lopez-Baca v. Geren, 599 F. Supp. 2d 744, 754 (W.D.
discussed Cited as authority (rule) Susan England v. Janice Kolbe, as Guardian of the Estate of Edna Moon
Tex. App. · 2015 · confidence medium
Because changed from "asbestosis with no impairment" to asbestosis is a progressive disease, see, e.g., Robinson v. "asbestosis with mild impairment," because Bailey did not Global Marine Drilling Co., 101 F.3d 35, 36 (5th timely supplement his discovery responses to reflect the Cir.1996); Pustejovsky v. Rapid-American Corp., 35 revised diagnosis.
discussed Cited as authority (rule) Equal Employment Opportunity Commission v. LHC Group, Inc.
5th Cir. · 2014 · confidence medium
One line of cases requires the employee to prove “(3) that he was subject to an adverse employment decision on account of his disability.” Zenor, 176 F.3d at 853 (citing, inter alia, Robertson v. Neuromedical Ctr., 161 F.3d 292 , 294 (5th Cir.1998) (per curiam), and Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir.1996)); see also Chiari v. City of League City, 920 F.2d 311 (5th Cir.1991) (interpreting the Rehabilitation Act of 1973, 29 U.S.C.A. § 794 (a), the ADA’s predecessor).
discussed Cited as authority (rule) City of Houston v. Shayn A. Proler
Tex. App. · 2012 · confidence medium
See Waldrip, 325 F.3d at 656 (holding that evidence of temporary effects of pancreatitis did not amount to proof of an impairment that substantially limited a major life activity); Burch v. Coca-Cola Co., 119 F.3d 305, 315-18 (5th Cir.1997) (holding evidence was insufficient to raise a fact issue as to whether plaintiffs alcoholism was an impairment that substantially limited a major life activity); Foreman v. The Babcock & Wilcox Co., (holding employee’s heart condition with surgically implanted pacemaker did not substantially limit the major life activity of working); Robinson v. Global Ma…
discussed Cited as authority (rule) Cato v. FIRST FEDERAL COMMUNITY BANK
E.D. Tex. · 2009 · confidence medium
See, e.g., Dupre v. Charter Behavioral Health Sys., Inc., 242 F.3d 610, 614 (5th Cir.2001) (holding back injury not a substantial limit on major life activities of sitting, standing or working); Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.1999) (holding “moderate difficulty experienced while walking does not rise to the level of a disability”); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (holding asbestosis not a substantial limit on the major life activity of breathing).
discussed Cited as authority (rule) Lopez-Baca v. Geren (2×) also: Cited "see"
W.D. Tex. · 2008 · confidence medium
Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996).
cited Cited as authority (rule) Desmond v. Mukasey
D.C. Cir. · 2008 · confidence medium
Ctr., 164 F.3d 423, 424 (8th Cir.1999) (breathing and eating); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (breathing).
discussed Cited as authority (rule) Bukta v. JC Penney Co., Inc.
N.D. Ohio · 2004 · confidence medium
Sys., Inc., 111 F.3d 80, 81 (8th Cir.1997) (finding plaintiffs panic attacks, although they hampered breathing did not substantially limit breathing because the attacks were infrequent and very manageable); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (finding plaintiffs breathing not substantially limited because “[s]everal instances of shortness of breath when climbing stairs do not rise to the level of substantially limiting the major life activity of breathing”); see also White v. Honda of America Mfg., Inc., 241 F.Supp.2d 852 (S.D.Ohio 2003) (finding plaintif…
discussed Cited as authority (rule) Bennett v. Calabrian Chemicals Corp. (2×)
E.D. Tex. · 2004 · confidence medium
See 42 U.S.C. § 12102 (2)(B); Sher-rod, 132 F.3d at 1120 ; see also Pryor, 138 F.3d at 1028 ; Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996).
discussed Cited as authority (rule) Waldrip v. General Electric Co.
5th Cir. · 2003 · confidence medium
See, e.g., Blanks v. Southwestern Bell Communications, Inc., 310 F.3d 398, 401 (5th Cir.2002) (holding HIV not a substantial limit on major life activity of reproduction); Dupre v. Charter Behavioral Health Sys., Inc., 242 F.3d 610, 614 (5th Cir.2001) (holding back injury not a substantial limit on major life activities of sitting, standing, or working); Talk, 165 F.3d at 1025 (holding deformed leg not a substantial limit on major life activities of walking or working); Still, 120 F.3d at 52 (holding monocular vision not a substantial limit on major life activity of working); Robinson v. Globa…
discussed Cited as authority (rule) Dose v. Buena Vista University (2×)
N.D. Iowa · 2002 · confidence medium
Information Sys., Inc., 111 F.3d 80, 81 (8th Cir.1997) (holding that although breathing was hampered during actual panic attack, disorder did not substantially limit plaintiffs major life activities where attacks were infrequent and very manageable); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (holding that several instances of asbestosis-related shortness of breath did not substantially limit major life activity of breathing).
discussed Cited as authority (rule) Norfolk Southern Railway Co. v. Bailey
Tex. App. · 2002 · confidence medium
Because asbestosis is a progressive disease, see, e.g., Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir.1996); Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex.2000), it should have been no surprise to Norfolk Southern that Bailey’s condition might worsen between the original diagnosis in early 1997 and the trial over four years later in October 2001.
discussed Cited as authority (rule) Norfolk Southern Railway Company v. James Allen Bailey
Tex. App. · 2002 · confidence medium
Because asbestosis is a progressive disease, see, e.g. , Robinson v. Global Marine Drilling Co. , 101 F.3d 35, 36 (5th Cir. 1996); Pustejovsky v. Rapid-American Corp. , 35 S.W.3d 643, 646 (Tex. 2000), it should have been no surprise to Norfolk Southern that Bailey's condition might worsen between the original diagnosis in early 1997 and the trial over four years later in October 2001.
discussed Cited as authority (rule) Norfolk Southern Railway Company v. James Allen Bailey
Tex. App. · 2002 · confidence medium
Because asbestosis is a progressive disease, see, e.g., Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996); Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000), it should have been no surprise to Norfolk Southern that Bailey=s condition might worsen between the original diagnosis in early 1997 and the trial over four years later in October 2001.
discussed Cited as authority (rule) Simonson v. Trinity Regional Health System
N.D. Iowa · 2002 · confidence medium
Ctr., 164 F.3d 423, 425 (8th Cir.1999) (concluding plaintiffs allergy did not substantially limit her ability to eat or breathe — major life activities) (quoting Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996)).
discussed Cited as authority (rule) Lottinger v. Shell Oil Co.
S.D. Tex. · 2001 · confidence medium
Co., 136 F.3d 1047, 1052 (5th Cir.1998); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir.1996); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir.1996), cert. denied, 520 U.S. 1228 , 117 S.Ct. 1820 , 137 L.Ed.2d 1028 (1997).
discussed Cited as authority (rule) Middleton v. Ball-Foster Glass Container Co.
N.D. Tex. · 2001 · confidence medium
“Substantially limits ... means ... [u]n-able to perform a major life activity that the average person in the general population can perform; or [significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. §§ 1630.2 (j)(l)(i)-(ii); Robinson v. Global Marine, 101 F.3d 35, 36 (5th Cir.1996), cert. denied, 520 U.S. 1228 , 117 S.Ct. 1820 , 137 L.Ed.2d 1028 (1…
discussed Cited as authority (rule) Eber v. Harris County Hospital District (2×) also: Cited "see"
S.D. Tex. · 2001 · confidence medium
Co. 136 F.3d 1047, 1052 (5th Cir.1998); Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir.1996); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir.1996), cert. denied, 520 U.S. 1228 , 117 S.Ct. 1820 , 137 L.Ed.2d 1028 (1997).
discussed Cited as authority (rule) Equal Employment Opportunity Commission, - Mary Boyle, Intervenor v. R.J. Gallagher Company
5th Cir. · 1999 · confidence medium
Co., 136 F.3d 1047 , 1050 n.8 (5th Cir.1998); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir.1998); Still v. Freeport-McMoran, Inc., 120 F.3d 50, 52 (5th Cir.1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir.1996); Riel v. Electronic Data Sys.
cited Cited as authority (rule) Zenor v. El Paso Healthcare
5th Cir. · 1999 · confidence medium
See also Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir. 1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996).
cited Cited as authority (rule) Tom Zenor v. El Paso Healthcare System, Limited, Doing Business as Columbia Medical Center-East Columbia Medical Center-East
5th Cir. · 1999 · confidence medium
See also Burch v. Cocar-Cola Co., 119 F.3d 305, 320 (5th Cir.1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir.1996).
discussed Cited as authority (rule) Marie Land v. Baptist Med. Center (2×)
8th Cir. · 1999 · confidence medium
Sys., Inc., 111 F.3d 80, 81 (8th Cir. 1997) (although speaking and breathing were hampered during actual panic attack, disorder did not substantially limit plaintiff’s major life activities where attacks were infrequent and very manageable); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir. 1996), cert. denied, 117 S. Ct. 1820 (1997) (several instances of asbestosis-related shortness of breath did not substantially limit major life activity of breathing).
examined Cited as authority (rule) Marie Land, Individually and as Natural Guardian of Megan Land, a Minor v. Baptist Medical Center (4×)
8th Cir. · 1999 · confidence medium
Sys., Inc., 111 F.3d 80, 81 (8th Cir.1997) (although speaking and breathing were hampered during actual panic attack, disorder did not substantially limit plaintiffs major life activities where attacks were infrequent and very manageable); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996), cert. denied, — U.S. -, 117 S.Ct. 1820 , 137 L.Ed.2d 1028 (1997) (several instances of asbestosis-related shortness of breath did not substantially limit major life activity of breathing).
discussed Cited as authority (rule) Deas v. River West, L.P.
5th Cir. · 1998 · confidence medium
And in Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996), we held that an individual who suffered from asbestosis, which impairment had reduced his lung capacity to 50% of normal and had caused him to experience shortness of breath and difficulty climbing stairs, was not substantially limited in the major life activity of breathing.
discussed Cited as authority (rule) Dupré v. Harris County Hospital District
S.D. Tex. · 1998 · confidence medium
Co., 136 F.3d 1047, 1050 (5th Cir.1998); Still v. Freeport-McMoran, Inc., 120 F.3d 50, 52 (5th Cir.1997); Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir.1996), cert, denied, - U.S. -, 117 S.Ct. 1820 , 137 L.Ed.2d 1028 (1997).
discussed Cited as authority (rule) Logan v. Pennaco Hosiery
5th Cir. · 1998 · confidence medium
DISCUSSION In order to establish a prima facie claim under the ADA, a claimant must prove that “(1) he has a disability; (2) he was qualified for the job; and (3) an adverse employment decision was made because of his disability.” Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996), cert. denied, 117 S. Ct. 1820 (1997).
cited Cited as authority (rule) Barber v. Nabors Drilling USA
5th Cir. · 1997 · confidence medium
Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir. 1996).
cited Cited as authority (rule) Jimmy W. Barber v. Nabors Drilling U.S.A., Inc. Nabors Loffland Drilling Company, Nabors Drilling U.S.A., Inc.
5th Cir. · 1997 · confidence medium
Robinson v. Global Marine Drilling Co., 101 F.3d 35, 36 (5th Cir.1996).
discussed Cited as authority (rule) Cannizzaro v. Neiman Marcus, Inc.
N.D. Tex. · 1997 · confidence medium
Stibstantial Limitation “Substantially limits ... means :.. [ujnable to perform a major life activity that the average person in the general population can perform; or [significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condi *474 tion, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. §§ 1630.2 (j)(l)(i)-(ii); Robinson v. Global Marine, 101 F.3d 35, 36 (5th Cir. 1996), cert, denied — U.S.-, 117 S.Ct. 18…
examined Cited as authority (rule) Henderson v. New York Life, Inc. (3×) also: Cited "see"
N.D. Tex. · 1997 · confidence medium
“Substantially limits ... means ... [u]nable to perform a major life activity that the average person in the ' general population can perform; or [significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. §§ 1630.2 (j)(l)(i)-(ii); Robinson v. Global Marine, 101 F.3d 35, 36 (5th Cir.1996), cert. denied — U.S. -, 117 S.Ct. 1820 , 137 L.Ed.2d 1028 (1997)…
cited Cited as authority (rule) Boren v. Wolverine Tube, Inc.
N.D. Miss. · 1997 · confidence medium
Robinson v. Global Marine Drilling, 101 F.3d 35, 36 (5th Cir.1996), cert. denied, — U.S. -, — S.Ct. -, — L.Ed.2d-; Howard v. North Miss.
discussed Cited "see" Sebest v. Campbell City School District Board of Education
6th Cir. · 2004 · signal: see · confidence high
See Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (noting that “[s]everal instances of shortness of breath when climbing stairs do not rise to the level of substantially limiting the major life activity of breathing”); Minnix v. City of Chillicothe, No. 98-4285, 2000 WL 191828 , at *2 (6th Cir. Fed. 10, 2000) (holding that plaintiff failed to present a genuine question of material fact that impairment substantially limited breathing when there was no medical evidence that plaintiffs breathing problems were “severe, long term, or permanent”); Ventura v. City of …
discussed Cited "see" Piascyk v. City of New Haven
D. Conn. · 1999 · signal: see · confidence high
Compare 29 C.F.R. § 1630.2 (h)(2)(i) (“functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working” constitute major life activities under the ADA); see Robinson v. Global Marine Drilling Co., *27 101 F.3d 35, 37 (5th Cir.1996) (climbing stairs is not a sufficiently “basic, necessary function ... to qualify as a major life activity under the ADA.
discussed Cited "see" Santiago Clemente v. Executive Airlines
D.P.R. · 1998 · signal: see · confidence high
See Robinson v. Global Marine Drilling Co. 101 F.3d 35, 37 (5th Cir.1996) (“While these facts are evidence of a history of an impairment, they are not evidence of a history of a disability.”). “[I]n order to make out a claim for discrimination based on a record of impairment, the plaintiff must show that at some point in the past, she was classified or misclassified as having a mental or physical impairment that substantially limits a major life activity.” Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1121 (5th Cir., 1998).
discussed Cited "see, e.g." Miller v. McHugh
S.D.N.Y. · 2011 · signal: see also · confidence medium
See also Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (climbing stairs is not a sufficiently "basic, necessary function ... to qualify as a major life activity under the ADA”); Missick v. City of New York, 707 F.Supp.2d 336, 352-53 (E.D.N.Y.2010) (same); Addoo v. New York City Bd. of Educ., No. 04 Civ. 2255, 2006 WL 5838977 , at *8 (E.D.N.Y.
discussed Cited "see, e.g." Garcia v. Allen
Tex. App. · 2000 · signal: see also · confidence medium
See also Robinson v. Global Marine Drilling Co., 101 F.3d 35, 37 (5th Cir.1996) (holding that individual with asbestosis who suffered only a few instances of shortness of breath while climbing stairs was not substantially limited in the major life activity of breathing); Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir.1997) (noting that cases make clear that moderate difficulty or pain experienced while walking does not rise to level of disability); Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir.1998) (holding that plaintiff failed to establish that back injury subst…
101 F.3d 35
DeMOSS, Circuit Judge:

William Robison, [1] a worker with asbestosis, filed this Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), ease against his employer, Global Marine Drilling Company, claiming that he was not rehired because of his disability. While the evidence shows that Robison had an impairment, the evidence is insufficient to prove that his asbestosis substantially limited a major life function. Thus, Robison’s impairment does not rise to the level of a disability under the ADA. Accordingly, we reverse the district court’s denial of judgment as a matter of law and render a take-nothing judgment in favor of Global Marine.

BACKGROUND

William Robison worked for Global Marine for ten years as a rig mechanic and rig engineer. In 1992 he was a rig engineer on the Adriatic IV, a Global Marine drill ship working off the coast of Sicily in the Mediterranean Sea. In August 1992, the Adriatic IV lost its contract and, because there was no work available in the Mediterranean, the rig was taken out of service and stacked. Robi-son, along with most of the crew, was laid off when the rig was stacked. Robison admits that his layoff was caused by economic considerations and not by discrimination.

[*36] After the layoff, Robison’s name was placed on a list of Global Marine employees eligible to be recalled. This list was circulated throughout Global Marine’s fleet for review by rig managers who had vacancies to fill on their rigs. Each Global Marine rig manager had the authority to hire employees for the rigs he supervised. All other crewmen of the Adriatic IV who had been laid off were hired back. After the vessel was stacked, Global Marine had 20-25 openings for which Robison was qualified. Nonetheless, Robison was never hired back by Global Marine.

In 1986, Robison had been diagnosed with asbestosis, a progressive and often fatal condition of the lungs. Robison was “up front” about his diagnosis and always notified his tool pusher, who was his supervisor on the rig, about his condition. In addition, his personnel file at Global Marine contained a reference to his pulmonary problems. Due to his asbestosis, Robison’s lung capacity was less than 50% of normal and he had shortness of breath while climbing ladders on the Adriatic IV.

Robison filed suit against Global Marine, alleging violations of the ADA and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (“ADEA”). The jury found for Robison on his ADA claim, but against him on his ADEA claim. The jury awarded him $49,000 for back pay, $31,000 as liquidated damages and $50,000 for punitive damages. Liquidated damages are not recoverable under the ADA and the interrogatory concerning them was predicated on finding liability under the ADEA. The district court, therefore, disregarded the answer to that interrogatory and did not award the $31,000 to the Robison. The district court also found that punitive damages were not warranted and reduced Robison’s award by $50,000.

Global Marine filed a motion for judgment as a matter of law as to Robison’s ADA claim, which the district court denied.

DISCUSSION

In reviewing a denial of a motion for judgment as a matter of law we employ:

[T]he same standards as the district court to determine whether sufficient evidence exists to support the jury verdict.... “If the facts and inferences point so strongly and overwhelmingly in favor of one party that it would be unreasonable for jurors to arrive at a contrary verdict,” the motion for judgment should be granted.

Leatherwood v. Houston Post Co., 59 F.3d 533, 535-36 (5th Cir.1995) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc)).

To establish a claim for discrimination under the ADA, a plaintiff must prove that: (1) he has a disability; (2) he was qualified for the job; and (3) an adverse employment decision was made because of his disability. Rizzo v. Children’s World Learning Centers, Inc., 84 F.3d 758, 763 (5th Cir.1996). Global Marine argues that Robison fails on the first prong of his case. While Robison had asbestosis, Global Marine contends that he was not disabled under the ADA and thus was not entitled to ADA protection.

A disability under the ADA is:

(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). The EEOC’s regulations define “major life activities” as “functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i) (emphasis added). An individual is “substantially limitfed]” if he is:

(ij unable to perform a major life activity that the average person and the general population can perform; or
(ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity.

29 C.F.R. § 1630.2(j)(l).

The evidence establishes that Robi-son’s asbestosis was an “impairment.” 29[*37] C.F.R. § 1630.2(h)(1) (regulations define impairment as a physiological disorder or condition affecting, inter alia, the respiratory system). Thus, the issue is whether his impairment substantially limits a major life activity, thereby becoming a disability. Ellison v. Software Spectrum, Inc., 85 F.3d 187, 189-90 (5th Cir.1996).

The only problem Robison experienced from his asbestosis was a few instances of shortness of breath while climbing stairs. [2] As noted above, breathing is a major life activity, while “[ejlimbing is not such a basic, necessary function and this court does not consider it to qualify as a major life activity under the ADA.” Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 758 n. 2 (5th Cir.1996). Several instances of shortness of breath when climbing stairs do not rise to the level of substantially limiting the major life activity of breathing. It is important to note that Robison offered no medical expert testimony. The only evidence regarding his asbestosis and its effects came from the plaintiff himself.

Robison can also fall under the ADA’s protection if there is evidence that he had a record of disability or was regarded as disabled. 42 U.S.C. § 12102(2)(B) & (C). There was testimony at trial that Robison told his supervisors of his asbestosis and that the personnel file Global Marine kept on him noted his condition. While these facts are evidence of a history of an impairment, they are not evidence of a history of a disability. There is no evidence in the record that Robi-son had a history of, or was regarded as, having an impairment which substantially limits a major life function. [3]

CONCLUSION

Robison is not disabled. He does have asbestosis, but that impairment does not substantially limit his major life activity of breathing. Because Robison failed to prove that he is disabled, the evidence is insufficient to sustain the jury verdict on his ADA claim. The district court erred in denying Global Marine’s motion for judgment as a matter of law on Robison’s ADA cause of action. Accordingly, we REVERSE the judgment of the district court and RENDER a take-nothing judgment in favor of Global Marine. [4]

1

. The plaintiff's correct last name is “Robison.” His name was misspelled on the original complaint, however, so the case is styled “Robinson."

2

.Robison also testified that his lung capacity was less than 50% of normal. While this may be evidence of an impairment, the fact of a lower lung capacity is not evidence of a disability. Other than the shortness of breath while climbing, Robison introduced no evidence purporting to show how this lower lung capacity "significantly restricted [him] as to the condition, manner or duration under which [he could breathe] as compared to the condition, manner, or duration under which the average person in the general population can [breathe]." 29 C.F.R. § 1630.2(j)(l)(ii).

3

."Regarded as having such an impairment” means that the individual;

(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(3) Has none of the impairments defined in ... [29 C.F.R. § 1630(h) ] but is treated by a covered entity as having a substantially limiting impairment.

29 C.F.R. § 1630.2(l)(l)-(3); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727-28 n. 19 (5th Cir.1995).

4

.Robison cross-appealed, arguing that the district court erred in reversing the punitive damages award and in denying certain costs. Because we find no liability, we need not consider the punitive damages and costs issues.