UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-10192
LINDA SUSAN MORTON,
Plaintiff-Appellant,
VERSUS
GTE SERVICE CORPORATION, ET AL.,
Defendants,
GTE NORTH INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:94-CV-424-P)
April 9, 1997
Before JOLLY, JONES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:*
Plaintiff-Appellant, Linda Susan Morton (“Morton”) appeals
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
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from a summary judgment for her former employer GTE North
Incorporated (“GTE”) on her claims brought pursuant to the
Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”)
and the Texas Commission on Human Rights Act, TEX. LABOR CODE ANN. ch.
21 (Supp. 1996) (“TCHRA”). We affirm.
FACTS
The summary judgment evidence, considered in the light most
favorable to Morton, established the following facts. Morton
worked for GTE1 for over twenty years, moving up from a clerical
position to a computer programmer. She suffered from psychiatric
illness, diagnosed as major depression and bi-polar disorder, for
approximately five years prior to her termination.
Morton was hospitalized in early 1989, in March of 1990 and in
the Spring of 1991 for depression. In the Fall of 1991 Morton’s
psychiatrist wrote two letters to GTE and spoke with Morton’s
supervisor two or three times, communicating that Morton needed to
reduce her level of stress at work. In response, GTE limited her
overtime for a three week period, restructured her job duties and
transferred “pressure” projects to other employees. In February
1992, GTE granted Morton another leave of absence for
hospitalization because she was suicidal. After her return from
this leave with a complete release, Morton continued to have
performance and absenteeism problems. The psychiatrist had a
conversation with GTE’s nurse suggesting that Morton needed reduced
interaction with people and that GTE delay disciplining Morton for
excessive absenteeism for two to three weeks. In June 1992, Morton
again threatened suicide. At her doctor’s recommendation, Morton
1
Morton was an employee of different GTE subsidiaries from 1969
until 1993. From October 1989 through March 1993, she was employed
by GTE North Incorporated.
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took two weeks off work, which was extended into a six month paid
short-term disability leave. The ADA became effective during her
short-term disability leave, on July 26, 1992.
During her short-term disability leave, Morton applied for
Social Security disability benefits and long-term disability
benefits through a private insurance policy. At the end of
Morton’s short-term disability leave, neither the Social Security
Administration or the private insurer had approved her requests for
benefits. GTE permitted Morton to use the remainder of her 1992
and 1993 vacation time to extend her paid leave until February 12,
1993, at which time her disability benefits had still not been
approved. GTE then placed Morton on a thirty day departmental
leave of absence so that her medical and other insurance would not
lapse. During that thirty day period, she was approved for Social
Security and private insurance disability benefits. Morton was
terminated as a GTE employee in March 1993.
In July and August 1993, Morton wrote three letters to GTE,
each time noting that she was “completely recovered”2 and
“requesting that GTE make reasonable accommodation to reassign me
to a vacant position within the organization as outlined in the
[ADA].” In September 1993, GTE advised Morton that they were not
“currently seeking external candidates with [her] background and
credentials.” Morton attached to her summary judgment pleadings a
list of the jobs filled at GTE during July 1, 1993 through December
31, 1993. However, there is no summary judgment evidence that
shows the essential functions of the jobs listed or establishes
that Morton was qualified to perform one or more of the jobs filled
2
Morton did not provide GTE with a release from her physician
indicating that she was recovered and ready to return to work.
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during that period.
ANALYSIS
1. Standard of review.
We review the grant of summary judgement de novo, applying the
same standard as the district court. We must consult the
applicable law to ascertain the material factual issues, review the
evidence bearing on those issues, viewing it in the light most
favorable to the nonmoving party, and affirm the summary judgment
if there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. Burfield v.
Brown, Moore & Flint, Inc., 51 F.3d 583 (5th Cir. 1995). Further,
this Court can affirm the grant of summary judgment on any legal
ground supported in the record and is not limited to those reasons
stated in the district court order. In re Jones, 966 F.2d 169, 172
(5th Cir. 1992).
2. Is Morton a “qualified individual” under the ADA?
Title I of the ADA provides that an employer “shall not
discriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions and privileges.” 42 U.S.C. § 12112(a)(1995). To
prevail on her ADA claim, Morton must prove that (1) she has a
disability; (2) she was qualified for the job, and (3) an adverse
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employment decision was made solely because of her disability.
Rizzo v. Children’s World Learning Center, Inc., 84 F.3d 758, 763
(5th Cir 1996). A “qualified individual with a disability” is a
disabled employee who, with or without reasonable accommodation,
can perform the essential functions of the job she holds or
desires. 42 U.S.C. § 12111(8) (1995). The district court held
that Morton failed to raise a fact question concerning whether or
not she was a qualified individual on the date the ADA went into
effect or any date thereafter. Rather, the district court found
that the summary judgment evidence showed that Morton continuously
represented that she was unable to perform her job duties and has
failed to create a question of fact on the “qualified individual”
issue.
The parties do not dispute that Morton has a disability as
defined by the ADA. Morton identifies two adverse employment
actions taken after the effective date of the ADA: Morton’s
termination in March 1993 and GTE’s failure to treat her as an
internal applicant when she asked to be reassigned during the
Summer of 1993. We will assume, arguendo, that Morton established
a genuine issue of fact on the first and third prongs of her ADA
cause of action.
Focusing on the second prong, we find that Morton failed to
create a genuine issue of fact concerning whether or not she was a
“qualified individual.” Morton submitted to the district court
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copies of the resume she sent to GTE with her letter requesting
reassignment, which evidences her credentials. However, her
requests to GTE identified no specific job or type of work for
which she wanted to be considered. Further, because the summary
judgment record is completely devoid of evidence concerning the
essential elements of any GTE job in 1993, the district court was
correct in holding that Morton submitted no competent summary
judgment evidence that Morton was a “qualified individual.” A
number of types of evidence are relevant to whether a function is
“essential,” including: (I) the employer’s judgment as to which
functions are essential; (ii) written job descriptions prepared
before advertising or interviewing applicants for the job; (iii)
the consequences of not requiring the incumbent to perform the
function; (iv) the work experience of past incumbents in the job;
and/or (v) the current work experience of incumbents in similar
jobs. Riel v. Electronic Data Systems Corporation, 99 F.3d 678,
682-83 (5th Cir. 1996), citing 29 C.F.R. § 1630.2(n)(3).
The crux of Morton’s argument on appeal is that she was
qualified to do “her” job, by which we understand her to argue that
she is qualified for employment as a computer programer at GTE.
Here, the undisputed summary judgment evidence shows that “her” job
at GTE underwent major changes after 1990, including the the
addition of requirements that the employees utilize programming
languages at which Morton was not proficient. Therefore, Morton’s
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reliance on the fact that she was previously qualified for a job at
GTE is misplaced, absent some evidence that the same or
substantially similar job existed in the Summer of 1993. Because
she failed to provide the district court with evidence that she
could perform the essential functions of a presently existing job,
with or without accommodation, she did not create a genuine issue
of material fact concerning her qualifications.
Likewise, Morton’s arguments concerning the reasonableness of
her proposed accommodations do not advance her argument without the
essential elements evidence.
CONCLUSION
Based on the foregoing, we affirm the district court’s grant
of summary judgment for GTE on Morton’s ADA claim.
The district court also granted GTE summary judgment on
Morton’s TCHRA claim. Although the notice of appeal is adequate to
appeal the TCHRA ruling, Morton raises no issues on appeal
regarding that claim. As recognized by the district court, the
majority of courts construing the Texas act have relied almost
exclusively on federal authorities. See, e.g. Fogle v.
Southwestern Bell Telephone Co., 800 F. Supp. 495, 498 (W.D. Tex.
1992). For these reasons, we affirm the district court’s grant of
summary judgment on Morton’s TCHRA claim as well.
AFFIRMED.
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