UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT

                                 _________________________

                                        No. 02-10346
                                   SUMMARY CALENDAR
                                 _________________________

                                     DONALD OATMAN,

                                                     Plaintiff - Appellant

                                                v.

                                FUJI PHOTO FILM USA, INC.,

                                                     Defendant - Appellee.

______________________________________________________________________________

                     Appeal from the United States District Court
                          for the Northern District of Texas
                                  (3:00-CV-2116-R)
______________________________________________________________________________
                                 November 12, 2002
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

       In this appeal we review a district court's decision to grant summary judgement in favor of

Defendant, Fuji Photo Film USA (“Fuji”), regarding all claims brought by Plaintiff Donald

Oatman (“Oatman”) under the anti-retaliation provision of the Employee Retirement Income

Security Act (“ERISA”), 42 U.S.C. § 1140, and the Family Medical Leave Act of 1993

(“FMLA”), 42 U.S.C. § 2601. For the following reasons, we affirm the district court’s judgment.


       1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

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                                                 I.

       Donald Oatman was employed by Fuji for more than fifteen years. From 1985 until his

termination on October 5, 1998, Oatman’s position at Fuji was that of Warehouse Supervisor. At

all times relevant to this litigation, Oatman was supervised by Al Levine (“Levine”), Regional

Human Resources Manager.

       In the early 1990s, Oatman began to experience problems with one of his knees. He was

granted leave to have surgery performed on the knee in 1994. Three weeks after the surgery,

Oatman returned to work. Oatman again required medical attention because of the knee in 1998,

and on March 31 of that year was granted leave to undergo a second surgical procedure.

Following the second surgery, which took place on April 6, 1998, Oatman applied for and

received short-term disability benefits from CIGNA, Fuji’s health insurance carrier. When CIGNA

discontinued his short-term disability payments on July 3, 1998, Oatman, still unable to return to

work, applied for long-term disability benefits. On July 24, 1998, Levine sent Oatman a letter

informing him that his leave had been continued as unpaid FMLA leave, beginning July 20, 1998

and running through October 9, 1998. Oatman was terminated on October 5, 1998.

       On September 27, 2000, Oatman filed suit against Fuji in the Northern District of Texas,

alleging violations of his rights under the FMLA and Section 510 of ERISA. Oatman argued his

termination occurred while he was still entitled to leave under the FMLA, and that Fuji’s failure to

restore him to his former position, or an equivalent position, was wrongful. Relatedly, Oatman

claimed he was terminated and discriminated against due to his exercise of rights under the FMLA

and ERISA. Pursuant to Fed. R. Civ. P. 56, Fuji moved for summary judgment on all claims,

arguing that Oatman had neither evidence he was entitled to FMLA leave or reinstatement, nor


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had he evidence that his employment was terminated in violation of the FMLA or ERISA. The

district court granted Fuji’s motion for summary judgment and Oatman appeals.2

                                                 II.

       We review a grant of summary judgment de novo, applying the same standard as the

district court. See Terrebonne Parish School Board v. Columbia Gulf Transmission Co., 

, 310 (5th Cir. 2002). Summary judgment is proper only if there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. Pro.

56(c). If the moving party meets its initial burden of showing that there is no genuine issue of

material fact, the burden shifts to the nonmoving party to produce evidence establishing a factual

issue. See Evans v. Houston, 

, 348 (5th Cir. 2001). Although we draw all reasonable

inferences in favor of the nonmoving party, conclusory allegations unsupported by concrete and

particular facts are insufficient to defeat a motion for summary judgment. See 

; Hugh Symons Group, PLC v. Motorola, Inc., 

, 468 (5th Cir. 2002);

Marshall v. East Carroll Parish Hosp. Serv. Dist., 

, 324 (5th Cir. 1998).

                                    A. Oatman’s FMLA Claims

       The district court found that Fuji was entitled to summary judgment regarding Oatman’s

FMLA claims because Oatman failed to show that he was eligible to be reinstated when his

FMLA leave expired, as required under the FMLA. Oatman argues that the district court’s

dismissal of his FMLA claim is misplaced because the court failed to consider the effect of

reasonable accommodation on his ability to return to work.


       2
         Plaintiff’s original suit also included claims under Sections 409 and 502 of ERISA. On
appeal, Oatman does not challenge the district court’s summary judgment ruling that both of these
claims were barred due to his failure to exhaust administrative remedies.

                                                 -3-
       Under the FMLA, an employee is entitled, upon returning from FMLA leave, to be

restored “to the position of employment held by the employee when the leave commenced” or “an

equivalent position.” 29 U.S.C. § 2614(a)(1). In addition:

       If the employee is unable to perform an essential function of the position because of a
       physical or mental condition, including the continuation of a serious health condition, the
       employee has no right to restoration to another position under the FMLA. However the
       employer’s obligations may be governed by the Americans With Disabilities Act (ADA).
       See § 825.702.

29 C.F.R. § 825.114(b). Furthermore, if an employee is able to return to work upon the

expiration of FMLA leave, the employer will then be liable for failing to restore the employee to

their former position. See 29 U.S.C. § 2614(a)(1)(A); see also Holmes v. E. Spire

Communications Inc., 

(D.Md. 2001)(holding that plaintiff’s FMLA claim was

precluded as a matter of law because of the admitted fact that plaintiff could not have returned to

work on the date she believed her FMLA leave ended).

       Oatman does not deny that he was unable to perform the essential functions of his job at

Fuji. In fact, according to Plaintiff’s own deposition testimony, he could not have returned to

work on October 9, 1998 –the date when Oatman alleges his FMLA leave ended. Rather, Oatman

argues that, had he been offered reasonable accommodations, he could have returned to work

upon the expiration of his FMLA leave –i.e., he would have been able to perform the essential

functions of his position if he had been offered reasonable accommodations. Under the FMLA,

however, there is no right to reinstatement with “reasonable accommodations.” Indeed, existing

case law suggests otherwise. See, e.g., Tardie v. Rehabilitation Hospital of Rhode Island, 

, 543-44 (1st Cir. 1999)(finding no right to reinstatement where employee was unable to

work more than forty hours each week and it was established that an essential function of her job


                                                -4-
was working between fifty and seventy hours per week).

       Apparently recognizing that the FMLA does not independently provide for reinstatement

with reasonable accommodations, Oatman calls attention to the last sentence of 29 C.F.R. §

825.114(b), which refers both to the Americans With Disabilities Act and to 29 C.F.R. § 825.702.

Oatman argues that 29 C.F.R. § 825.114(b) should apply in conjunction with § 825.702, which, in

part, provides:

       If an employee is a qualified individual with a disability within the meaning of the
       Americans With Disabilities Act, the employer must make reasonable accommodations,
       etc., barring undue hardship, in accordance with the ADA. At the same time, the employer
       must afford an employee his or her rights under the FMLA.

29 C.F.R. § 825.702(b)(emphasis added).

       Undoubtedly, as Plaintiff suggests, there is some level of interplay between the FMLA and

the ADA. However, it does not necessarily follow that Oatman is entitled to the relief he seeks.

Significantly, Oatman did not assert a claim under the ADA in this case. Other than simply stating

that the FMLA should be considered in conjunction with the ADA, Plaintiff offers no authority to

support his assertion that the FMLA requires an employee to be reinstated with reasonable

accommodation at the end of FMLA leave. Had Plaintiff pursued a claim under the the ADA, the

issue of reasonable accommodation might have been pertinent. Because Oatman did not bring

such a claim, however, the issue is not relevant to the resolution of this portion of his case.

Furthermore, as the discussion below regarding Oatman’s ERISA claim shows, Oatman did not

present competent summary judgment evidence regarding his ability to return to his previous

position, even if accommodation had been provided.

       Under the FMLA, Oatman must show that he was able to return to his previous position

when his FMLA leave expired. Oatman does not deny that at the end of his leave he was unable to

                                                 -5-
perform the essential functions of his job at Fuji. Therefore summary judgment was appropriate as

to Plaintiff’s FMLA claims.

                              B. Oatman’s Section 510 ERISA Claim

       Under Section 510 of ERISA, it is unlawful to “discharge . . . or discriminate against a

participant or beneficiary for exercising any right to which he is entitled under the provisions of an

employee benefit plan . . . or for the purpose of interfering with the attainment of any right to

which such participant may become entitled.” 29 U.S.C. § 1140.

       To survive summary judgment, the employee must demonstrate genuine issues of material

fact with regard to whether the employer terminated the employee with the “specific intent” to

interfere with the employee’s ERISA rights or to otherwise retaliate against the employee for

exercising her rights under the ERISA plan. See Stafford v. True Temper Sports, 

,

295 (5th Cir. 1997); Hines v. Mass. Mutual Life Ins. Co., 

, 209 (5th Cir. 1995). The

employee is not required to show that the employer’s sole motivation was to interfere with

ERISA rights, but rather that a specific intent partly motivated the employer. See Nero v.

Industrial Molding Corp., 

, 927 (5th Cir. 1999).

       To meet this burden, absent direct evidence of discrimination, Plaintiff must present a

prima facie case of discrimination. See Bernal v. Randall’s Food & Drugs, Inc., No. CA 3-96-

CV-3464-R, 

, at *12 (N.D. Tex. March 24, 1998). If a prima facie case is

established, the burden shifts to Fuji to present a legitimate, non-discriminatory reason for the

alleged discriminatory conduct, at which point the burden shifts back to Plaintiff to show that the

proffered reason is a mere pretext for discrimination. 

a prima facie case of discrimination under ERISA, a plaintiff must establish


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that his employer fired him in retaliation for exercising an ERISA right or to prevent attainment of

benefits to which he was potentially entitled under an employee benefit plan. See Holtzclaw v.

DSC Communications Corp., 

, 260 (5th Cir. 2001); 

. In

addition, this court requires the Plaintiff to show that he was physically qualified for the position

sought. See 

.

        The district court found that, because Oatman was unable to show he was physically

qualified for his prior position –as required under Holtzclaw– Fuji was entitled to summary

judgment on Plaintiff’s claim under Section 510 of ERISA. Oatman argues that Holtzclaw is not

dispositive of this case because the employee in Holtzclaw admitted that he could not perform his

job, even with an accommodation. The Holtzclaw court found that, “Because Holtzclaw has not

shown he is qualified for the position he seeks, either with or without an accommodation, he can

pursue his ERISA claim no further.” See 

. Oatman argues that the

district court’s judgement on this claim should be reversed because the summary judgment

evidence established issues of material fact regarding the Plaintiff’s ability to perform the job if

provided with reasonable accommodations. The summary judgment evidence Oatman refers to,

however, fails to establish an issue of material fact regarding his ability to perform the job, with or

without reasonable accommodations.

        Plaintiff relies solely on his Declaration to support the assertion that he would be able to

perform his job with reasonable accommodations. Oatman’s Declaration, however, directly

contradicts his prior sworn interrogatory responses and deposition testimony. As discussed

earlier, Oatman does not deny that he was unable to perform the essential functions of his job as

of the day he asserts his FMLA leave would have expired. In fact, he testified under oath that this


                                                  -7-
was the case. Furthermore, Oatman testified that he did not believe there was any other job at Fuji

he could he have performed, that he had not even looked for a job because of his condition, and

that he did not think he would be able to perform any job between the date of his deposition and

the age of 65 as a result of the problems with his knee.

        “It is well settled that this court does not allow a party to defeat a motion for summary

judgment using an affidavit that impeaches, without explanation, sworn testimony.” S.W.S

Erectors, Inc. v. Infax, Inc., 

, 495 (5th Cir. 1996); Thurman v. Sears Roebuck & Co.,

952 S.2d 128, 137 n.23 (5th Cir. 1992), cert. denied, 

(1992); Albertson v. T.J.

Stevenson & Co., 

, 228 (5th Cir. 1984); see also Bank Leumi Le-Israel, B.M. v. Lee,

, 236-37 (7th Cir. 1991)(nonmovant cannot create a genuine issue of material fact by

contradicting his own earlier statements unless he offers a plausible explanation for the

incongruity). Oatman fails to offer any explanation for this contradiction and therefore his

Declaration is not competent summary judgment evidence.

       According to the Plaintiff’s own testimony, he could not physically perform the essential

functions of his former job. Because Plaintiff is unable to show that he is physically qualified for

his prior position, he cannot establish an element of his prima facie case. Fuji is therefore entitled

to summary judgment on Oatman’s claim under Section 510 of ERISA.

                                                  III.

       For the foregoing reasons, we AFFIRM the district court’s grant of Fuji’s motion for

summary judgement.




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