UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
96-50496
__________________
MILDRED ANN ALLEN,
Plaintiff-Appellant,
versus
THE TEXAS DEPARTMENT OF HUMAN SERVICES,
Defendant-Appellee.
______________________________________________
Appeal from the United States District Court for the
Western District of Texas, Austin
(A-95-CV-462)
______________________________________________
April 10, 1997
Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.
PER CURIAM:*
STATEMENT OF THE FACTS
Mildred Ann Allen was employed for over six years as a clerk
by the Texas Department of Human Services (“TDHS”). Allen’s
primary duties were as a Change Verification System clerk, which
entailed recording information using a computer terminal. Allen
was diagnosed with osteoarthritis by her personal physician in
*
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this opinion should not be published and is not precedent except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.
November 1993. Allen subsequently filed a request for
accommodation with TDHS, asking that she no longer be required to
pull or file cases due to her “functional impairment” from
arthritis. Five days after this, Allen amended this request to ask
additionally that she not type “if at all possible.” What Allen
requested to be eliminated from her duties, typing and filing, made
up 70 percent of her job functions.
TDHS decided that no reasonable accommodation could enable
Allen to perform her clerk position. TDHS began searching for
vacant positions at the same salary level for which Allen could
both qualify and be assigned. Allen filed an internal
discrimination complaint with TDHS on March 13, 1994, requesting
that she be transferred to a front desk position, and stating that
she could not perform her current job because of her disability.
Although this requested front desk position was not vacant, TDHS
offered Allen vacant positions in Killeen and Austin that required
minimal or no typing. Allen refused these positions. Following
this rejection, Allen’s supervisor recommended firing Allen due to
her inability to perform her requisite job duties, and Allen’s
employment was terminated in early May. On July 19, 1994, Allen
filed a charge of discrimination with the Texas Commission on Human
Rights and the EEOC, alleging that she was discriminated against on
the basis of disability.1
1
The Texas Commission on Human Rights issued findings on June
12, 1995, which stated that it did not find a violation of the
2
PROCEDURAL HISTORY
Allen filed a pro se suit on August 4, 1995 in federal
district court, alleging disability discrimination in violation of
(1) Title I of the Americans With Disabilities Act, 42 U.S.C. §§
12101-12213, (2) the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-
96, and (3) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e—2000e-17. A claim of race discrimination under Title VII was
added in Allen’s First Amended Complaint. The District Court
appointed counsel for Allen on January 19, 1996. TDHS filed a
Motion for Summary Judgment, to which Allen filed a response, and
the district court granted TDHS’s motion, holding that Allen was
not a qualified individual with a disability/handicap for the
purposes of the Americans with Disabilities Act, and the
Rehabilitation Act. Additionally, the court held that Allen had
failed to exhaust her administrative remedies on her Title VII race
discrimination claim because Allen’s charge of discrimination to
the Texas Commission on Human Rights and the EEOC complained only
of disability discrimination. Allen filed a Notice of Appeal by
Pro Se Appellant, following which her trial counsel entered an
appearance on her behalf and wrote her brief in this appeal.
On appeal, Allen argues that there was a genuine issue of fact
precluding summary judgment regarding Allen’s ability to perform
her job, and whether TDHS fired Allen because she was perceived to
Texas Commission on Human Rights Act.
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have a disability. Allen concedes she may not have been entitled
to a reasonable accommodation, but asserts she was fired simply for
requesting one.
DISCUSSION
On appeal, Allen does not contest the district court’s holding
that her Title VII racial discrimination claim was barred by her
failure to exhaust administrative remedies. Therefore, the only
issue on appeal is whether she was discriminated against because of
a disability. In order to establish an ADA discrimination claim,
a plaintiff must prove: “(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., No. 95-20888, 1996 WL 679295, at *2 (5th Cir. Nov.
25, 1996). An individual is disabled under the ADA if he has “a
physical or mental impairment that substantially limits one or more
of the major life activities of such individual.” 42 U.S.C. §
12102(2)(A). “Major life activities” include basic functions such
as walking, seeing, hearing, speaking, breathing, learning, and
working. 29 C.F.R. § 1630.2(I). The only major life activity in
which Allen claimed to be impaired is working. 29 C.F.R. §
1630.2(j)(3)(I) states that a person is substantially limited with
regard to working when that person is “significantly restricted in
the ability to perform either a class of jobs or a broad range of
jobs in various classes as compared to the average person having
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comparable training, skills, and abilities.” Additionally, “[t]he
inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.”
Id. The trial court found that Allen was not restricted from
performing a class of jobs, and was not, therefore, disabled.
Allen does not address this finding by the trial court on appeal.
Even were this Court to decide that this determination was in
error, Allen has clearly failed to meet the second prong of her ADA
claim, the requirement that she show she was qualified. 42 U.S.C.
§ 12111(8) defines a “qualified individual with a disability” as
“an individual with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.”
Essential functions are “the fundamental job duties of the
employment position the individual with a disability holds,”
excluding “the marginal functions of the position.” 29 C.F.R. §
1630.2(n)(1). TDHS presented summary judgment evidence that
Allen’s requested accommodations would eliminate 70 percent of her
job’s essential functions. The ADA does not require an employer to
fundamentally alter a job or create a new position. Daugherty v.
City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995), cert. denied, --
- U.S. ---, 116 S. Ct. 1263 (1996). Allen has made no attempt to
dispute that typing and filing were her essential duties; rather,
she argues that a factual issue exists whether she could still
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perform these duties. Although Allen stated, in an affidavit
supporting her response to TDHS’ motion for summary judgment, that
she was able to perform all the essential functions of her job, at
no time prior to the trial did she indicate to TDHS that she was
able to fulfill all of her duties. Instead, while still employed
by TDHS, Allen requested that she be relieved of her essential
functions, typing and filing, and Allen specifically stated in her
internal complaint to TDHS: “I can’t do [my job] because of my
disability” (emphasis in the original).
Finally, we note sua sponte that Allen’s claim should fail
because of its inconsistent assertions. If Allen is able to
perform the essential functions of her job, typing and filing, then
the basis of her ADA claim--that she is barred from working in a
broad class of jobs that require her to use her hands--does not
exist. Simply put, if she can perform these essential duties, she
is not barred from a class of jobs involving the use of her hands
and is not, therefore, disabled. On the other hand, if Allen is
disabled, and cannot use her hands, then she is not able to perform
the essential functions of her job, and TDHS is not required to
create a new job for her. In essence, Allen is hoist by her own
petard, and summary judgment would be appropriate based on the
inconsistency of her position alone.
Although Allen failed to raise the issue of her Rehabilitation
Act claim on appeal, we note that summary judgment was proper
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because the elements in a cause of action under the ADA are
virtually the same as those under the Rehabilitation Act.
Daugherty v. City of El Paso, 56 F.3d 695, 697 (5th Cir. 1995),
cert. denied, --- U.S. ---, 116 S. Ct. 1263 (1996).
CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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