Filed: Jul. 14, 1996
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals, Fifth Circuit. No. 95-30075. Wade E. ROGERS, Plaintiff-Appellant, v. INTERNATIONAL MARINE TERMINALS, INC., Defendant, and International Marine Terminals, erroneously designated as International Marine Terminals, Inc., Defendant-Appellee. July 12, 1996. Appeal from the United States District Court for the Eastern District of Louisiana. Before JOLLY, JONES and BENAVIDES, Circuit Judges. EDITH H. JONES, Circuit Judge: Wade E. Rogers ("Rogers") appeals the district co
Summary: United States Court of Appeals, Fifth Circuit. No. 95-30075. Wade E. ROGERS, Plaintiff-Appellant, v. INTERNATIONAL MARINE TERMINALS, INC., Defendant, and International Marine Terminals, erroneously designated as International Marine Terminals, Inc., Defendant-Appellee. July 12, 1996. Appeal from the United States District Court for the Eastern District of Louisiana. Before JOLLY, JONES and BENAVIDES, Circuit Judges. EDITH H. JONES, Circuit Judge: Wade E. Rogers ("Rogers") appeals the district cou..
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United States Court of Appeals,
Fifth Circuit.
No. 95-30075.
Wade E. ROGERS, Plaintiff-Appellant,
v.
INTERNATIONAL MARINE TERMINALS, INC., Defendant,
and
International Marine Terminals, erroneously designated as
International Marine Terminals, Inc., Defendant-Appellee.
July 12, 1996.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before JOLLY, JONES and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Wade E. Rogers ("Rogers") appeals the district court's grant
of summary judgment to his former employer, International Marine
Terminals ("IMT"), on Rogers' claims of employment discrimination.
Rogers sought relief under the Americans with Disabilities Act
("ADA") and § 510 of the Employee Retirement Income Securities Act
("ERISA") after he was terminated during a reduction in force
("RIF") at IMT. On his ADA claims, the district court held that
Rogers was not disabled for purposes of the ADA, that he was
nevertheless not qualified for his position, and that he was not
discriminated against because of his association with his disabled
wife. The district court denied his ERISA claim, holding that
evidence of IMT's specific intent to discriminate was lacking.
After reviewing de novo the summary judgment to IMT, this court
1
AFFIRMS. We also hold that Rogers was not a qualified employee
under ADA because he was not able to attend work at the time he was
terminated, and IMT was not required to make reasonable
accommodation in the form of an indefinite leave of absence.
BACKGROUND
Rogers was employed by IMT from 1984 to 1993, and worked as a
Class I mechanic with the company from 1990 until his layoff in
1992. In October 1992, Rogers took paid sick leave for the
treatment of persistent pain, swelling, and other problems in his
right ankle attributable to bone spurs, ligament damage, and gout.
After using all of his sick leave, Rogers received a year of
disability benefits pursuant to a disability plan sponsored by IMT.
Rogers had surgery to correct the problems with his right ankle,
but was not released for work by his physician until December of
1993. He obtained employment elsewhere.
Early in January of 1993, while Rogers was unavailable for
work, IMT began to implement a RIF with the goal of laying off at
least 25 employees by the end of March. Rogers and five other
employees were terminated. According to IMT's Vice-President of
Operations, Thomas Lange ("Lange"), Rogers was fired because of his
prior absenteeism and his unavailability for work since October of
1992.
Rogers's wife is afflicted with Crohn's disease, which
requires her to take parenteral nutrition. Medicare paid for
2
nutritional formulas for Mrs. Rogers.1 IMT's Group Employee
Benefit Plan ("Benefit Plan") specifically excluded
"nutrients/nutritional supplements provided as an inpatient or
outpatient beyond 30 months of the initial treatment of an illness
or injury." Because of this exclusion, IMT never paid for Mrs.
Rogers' nutritional formulas or treatments. Eight months after
Rogers's termination, however, IMT amended its Benefit Plan,
effective the preceding January to cover nutrients or nutritional
supplements when such supplements are "prescribed by a medical
doctor for life sustaining purposes."
Rogers filed suit against IMT alleging that the company
violated the ADA by terminating him because of (1) his alleged
disability; (2) the perception, albeit inaccurate, that he was
disabled; and (3) his association with his disabled wife. Rogers
further alleged that IMT violated ERISA by terminating him with the
specific intent to prevent him from exercising his rights under
IMT's Benefit Plan. The district court's rejection of the claims as
a matter of law prompts this appeal.
DISCUSSION
I. Standard of Review
We review the district court's grant of judgment as a matter
of law de novo, employing the same criteria used in that court.
Burfield v. Brown, Moore & Flint, Inc.,
51 F.3d 583, 588 (5th
Cir.1995). Summary judgment is proper only "if the pleadings,
1
The cost of such parenteral nutrition approaches $100,000
yearly.
3
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law." Fed.R.Civ.P. 56(c). Factual
questions and inferences are viewed in the light most favorable to
the nonmovant. Lemelle v. Universal Mfg. Corp.,
18 F.3d 1268, 1272
(5th Cir.1994).
II. ADA Claims
A. Actual 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." 42 U.S.C. § 12112(a). As a threshold requirement in
an ADA claim, the plaintiff must, of course, establish that he has
a disability. De la Torres v. Bolger,
781 F.2d 1134, 1136 (5th
Cir.1986).
The ADA defines a disability as follows:
(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 © being regarded as
having such an impairment.
42 U.S.C. § 12102(2). The pertinent inquiries are therefore
whether Rogers had a physical or mental impairment, and, if so,
whether it substantially limited one or more of his major life
activities. See, e.g., Dutcher v. Ingalls Shipbuilding,
53 F.3d
4
723, 725-26 and n. 4 (5th Cir.1995) (noting that ADA and
Rehabilitation Act definitions of "disability" are substantially
equivalent); Heilweil v. Mount Sinai Hosp.,
32 F.3d 718, 722 (2d
Cir.1994). The parties agree that Rogers' ankle problems
constituted a physical impairment.
The dispute is whether Rogers's ankle problems substantially
limited his major life activities of standing, walking, and
working.2 Under the ADA, not all limitations are substantial;
Rogers's difficulties with his ankle do not substantially limit him
unless they render him
(i) Unable to perform a major life activity that the average
person in 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)(1). In the instant case, there is no
evidence that Rogers's impairment substantially limits his ability
to stand and walk. For instance, an occupational therapist
evaluated Rogers after surgery as having "good body mechanics,"
"fluid transitional movement into/out of squatting, crouching,
kneeling, and crawling," and a "tolerance for standing and
sitting."
2
Rogers also contends that his impairment substantially
limited his major life activity of climbing. While not an
exhaustive list, "[m]ajor life activities means functions such as
caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 29 C.F.R.
§ 1630.2(i) (1995);
Dutcher, 53 F.3d at 726 n. 7. Climbing is
not such a basic, necessary function and this court does not
consider it to qualify as a major life activity under the ADA.
5
Rogers also contends that his ankle impairment substantially
limits his ability to work. To support this contention, Rogers
stresses that he continues to suffer from a 13% permanent, partial
disability to his entire body. However, there is no evidence to
connect this impairment with an inability to perform numerous jobs
or other of life's ordinary functions; absent such evidence, the
mere existence of a 13% permanent, partial disability does not
demonstrate that Rogers has been substantially impaired from
performing a major life activity. Importantly, Rogers acknowledges
that before surgery, he was able to work at IMT without any
limitation and that his condition improved after the ankle
operation. Also, the therapist concluded that Rogers has the
current functional capacity for heavy work and has the ability to
perform without any restriction his previous duties, including
welding, fitting, and millwrighting.
In sum, Rogers's ankle afflictions were temporary and did not
constitute a permanent disability; Rogers conceded as much in his
affidavit to the EEOC. The EEOC regulations concur that
"temporary, non-chronic impairments of short duration, with little
or no long term or permanent impact, are usually not disabilities."
29 C.F.R. § 1630.2(j) (Appendix). A wide range of afflictions,
many considerably more severe than Rogers's surgically correctable
and now corrected ankle difficulties, do not constitute
disabilities under the ADA; for example, a " "borderline' case of
cerebral palsy that only slightly interferes with an individual's
ability to read ... and to speak ... is not a disability." EEOC
6
Compliance Manual, § 902.4(c)(1). The record is bereft of support
for Rogers's claim that the physical impairments imposed by the
problems with his ankle are either chronic or severe enough to
constitute a disability under the ADA.
Furthermore, even assuming Rogers was disabled for purposes
of the ADA, he did not demonstrate both that he was a "qualified
individual" and that IMT could accommodate his disability
reasonably. The ADA defines a "qualified individual with a
disability" as "an individual who, with or without accommodation,
can perform the essential functions of the employment position that
such individual holds or desires." 42 U.S.C. § 12111(8). Hence,
this court considers whether Rogers could "perform the essential
functions of the job, i.e., functions that bear more than a
marginal relationship to the job at issue," and, if not, whether
"any reasonable accommodation by the employer would enable [him] to
perform those functions." Chandler v. City of Dallas,
2 F.3d 1385,
1393-94 (5th Cir.1993).
When Rogers was terminated effective January 6, 1993, he
acknowledges that he was unavailable for work, recuperating from
elective ankle surgery performed a month earlier. In fact, Rogers
remained unavailable for work until released by his physician in
December of 1993. Because Rogers could not attend work, he is not
a "qualified individual with a disability" under the ADA. As
several courts have recognized, "[a]n essential element of any ...
job is an ability to appear for work ... and to complete assigned
tasks within a reasonable period of time." Carr v. Reno,
23 F.3d
7
525, 530 (D.C.Cir.1994). See also, Tyndall v. Nat'l Educ. Centers,
Inc. of Cal.,
31 F.3d 209, 213 (4th Cir.1994) (an employee "who
does not come to work cannot perform any of his job functions,
essential or otherwise.").
Moreover, Rogers cannot demonstrate that IMT could reasonably
accommodate his purported disability. While Rogers contends that
IMT was required to accommodate him by allowing him to enjoy
indefinite leave, this argument is meritless. As the Fourth
Circuit recently explained,
Nothing in the text of the reasonable accommodation provision
requires an employer to wait an indefinite period for an
accommodation to achieve its intended effect. Rather,
reasonable accommodation is by its terms most logically
construed as that which presently, or in the immediate future,
enables the employee to perform the essential functions of the
job in question.... [R]easonable accommodation does not
require [an employer] to wait indefinitely for [the
employee's] medical conditions to be corrected....
Myers v. Hose,
50 F.3d 278, 283 (4th Cir.1995).
B. Perceived Disability
In the alternative, Rogers urges that IMT violated the ADA by
firing him due to the perception, albeit inaccurate, that he was
disabled.3 The district court found no evidence to support this
perception, emphasizing that Rogers openly assessed his condition
as temporary and that Michael Carter, Rogers' supervisor while at
IMT, testified that he never considered or perceived Rogers as
truly disabled.
3
Of course, the facts, already discussed, that Rogers was
unavailable for work and that he cannot demonstrate that IMT
could accommodate him reasonably also dispose of his claim that
he was terminated because he was perceived as disabled.
8
The ADA protects individuals who are regarded or perceived as
disabled from employment discrimination. The ADA's definition of
"disability" includes any individual that is "regarded as having
... an impairment" that substantially limits one or more of his
major life activities. 42 U.S.C. § 12102(2).4 But as the district
court correctly concluded, the record does not establish that IMT
regarded or perceived Rogers as disabled and that it discriminated
against him on this basis. Similarly, the assertion that IMT
regarded Rogers as disabled because of his chronic absenteeism is
unsupported. In July of 1991, Rogers was indeed counseled for his
absenteeism, but from the date of that counseling until October of
1992, IMT's records document not a single instance of absenteeism
by Rogers. Quite simply, Rogers did not hold himself out to IMT as
suffering from a disability; IMT did not regard or perceive Rogers
as disabled; and the record does not contain evidence
demonstrating otherwise. As a result, the district court properly
awarded IMT summary judgment on Rogers's claim that he was
terminated because IMT perceived him as disabled.
Rogers makes a related assertion that IMT "wrongfully"
perceived him as disabled because of his absenteeism. Rogers cites
an ADA implementing regulation that describes attitudinal barriers
of employers toward disabled individuals, including "concerns
4
In part, this provision is intended to combat "attitudinal
barriers that frequently result in employers excluding
individuals with disabilities. These include concerns regarding
productivity, safety, insurance, liability, attendance, cost ...
and acceptance by coworkers and customers." Comment, 29 C.F.R. §
1630.2(1).
9
regarding productivity, safety, insurance, liability,
attendance...." Comment, 29 C.F.R. § 1630.2(1) (emphasis added).
Rogers misreads this regulation. The regulation prohibits
discrimination on the basis of unfounded concerns about disabled
people. Here, the concerns about Rogers's unavailability to work
from October 1992 to January 1993 and beyond were very real.
C. Association with a Disabled Person
Rogers also asserts that IMT unlawfully terminated him
because of his association with his disabled wife. The ADA
prohibits employers from taking adverse employment action "because
of the known disability of an individual with whom the qualified
individual is known to have a relationship or association." 42
U.S.C. § 12112(b)(4). For instance, an employer cannot make an
adverse employment decision based on the "belie[f] that the
[employee] would have to miss work" in order to care for a disabled
person. See, e.g., Comment, 29 C.F.R. § 1630.
Although IMT knew that Mrs. Rogers has Crohn's disease, there
is no evidence to substantiate the assertion that IMT terminated
Rogers because of his association with her. While IMT was aware
that Rogers occasionally missed work to care for his wife, the
record does not suggest that IMT fired Rogers for that reason. In
fact, before Rogers was counseled for his absenteeism in July of
1991, Carter wrote a memorandum to Lange discussing this
absenteeism and attributing all of the absences to Rogers's, not
his wife's ailment. Later, Lange recommended counselling for
Rogers's absenteeism, which Lange likewise attributed exclusively
10
to Rogers's own health problems. The record contains no evidence
that the absences that, in part, led to Rogers' discharge were
attributed to his wife's disability in any way. Because there is
no genuine, material fact issue on this claim, judgment as a matter
of law in favor of IMT was proper.
III. ERISA Claim
Last, Rogers argues that IMT terminated him to eliminate from
its employee health benefit program the prospective costs of his
wife's medical treatment, especially those incurred by her
parenteral nutrition. But IMT had never borne any of those costs;
Medicare paid for the costs of these nutritional formulas for Mrs.
Rogers. As noted earlier, the Benefit Plan specifically excluded
parenteral nutrition from coverage while Rogers worked for IMT.
Undaunted, however, Rogers points out that after his termination,
IMT amended its Benefit Plan to cover nutrients or nutritional
supplements "prescribed by a medical doctor for life sustaining
purposes." From this subsequent amendment, Rogers infers that IMT
terminated him intentionally to prevent him from enjoying this
coverage for his wife.
To establish a prima facie case under § 510 of ERISA, Rogers
must prove that IMT, acting with specific discriminatory intent,
retaliated against him or his wife for filing medical claims
interfered with any right to which Rogers may have become entitled
under the Benefit Plan. See, e.g., 29 U.S.C. § 1140. See also,
Hines v. Mass. Mutual Life Ins. Co.,
43 F.3d 207, 209 (5th
Cir.1995) ("[a]n essential element of a Section 510 claim is proof
11
of defendant's specific discriminatory intent."); McGann v. H & H
Music Co.,
946 F.2d 401, 404 (5th Cir.1991), cert. denied,
506 U.S.
981,
113 S. Ct. 482,
121 L. Ed. 2d 387 (1992).
As before, there is no evidentiary support for Rogers'
assertion.5 To the contrary, the record demonstrates a
nondiscriminatory reason for IMT's decision to amend the Benefit
Plan; the company sought to insure the cost of nutritional
supplements for an employee who was terminally ill. IMT, as an
employer, has the right to amend its Benefit Plan in this fashion
and is free to modify the terms and conditions of benefit plans
offered to employees. See IMT Benefit Plan § 20; see also
McGann,
946 F.2d at 407 ("ERISA does not broadly prevent an employer from
"discriminating' in the creation, alteration, or termination of
employee benefit plans."). Also, by the time IMT amended its
Benefit Plan, Rogers was no longer a participant, as he was a
former employee. Because Rogers offered no evidence that IMT
specifically intended to deprive him of a right to which he was
entitled under the company's Benefit Plan, summary judgment for IMT
was warranted.
CONCLUSION
5
Indeed, even assuming Mrs. Rogers had a valid claim under
the Benefit Plan, IMT could have attempted to limit her claims by
terminating Rogers for his absenteeism. The Benefit Plan
expressly provides that "[c]overage will terminate for an
employee on the ... [d]ate employment terminates." Benefit Plan
§ 16. Should IMT have terminated Rogers in this manner, Mrs.
Rogers would have had the right to continue coverage for herself,
provided her spouse's termination was "for reasons other than
gross misconduct" and if she had informed IMT in writing within
60 days from the date of Rogers' termination of her intent to
continue coverage. Benefit Plan § 17.
12
For the foregoing reasons, the decision of the district court
granting summary judgment in favor of IMT on all of the claims
asserted against it by Rogers is AFFIRMED.
13