Foreman v. Babcock & Wilcox Co.

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 96-60510

EARL FOREMAN,

Plaintiff-Appellant,

VERSUS

THE BABCOCK & WILCOX COMPANY, ET AL.,

Defendants,

THE BABCOCK & WILCOX COMPANY,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of Mississippi
July 10, 1997

REVISED OPINION

Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

The opinion issued in this case under date of May 22, 1997 is

withdrawn and the following is issued in place thereof.

In this case under the Americans with Disabilities Act, 42

U.S.C. § 12101, et seq, Earl Foreman alleged at trial that his

employer failed to reasonably accommodate Foreman’s limitations

arising from his heart condition. At the close of all evidence,
the district court entered judgment as a matter of law in favor of

the employer, holding that the evidence could not support a jury

finding that Foreman was either qualified for, or entitled to, the

positions he sought. Foreman now appeals. For the following

reasons, we AFFIRM.

BACKGROUND

Plaintiff/Appellant Earl Foreman (“Foreman”) had been an

employee of Defendant/Appellee Babcock & Wilcox Company (“B&W”) for

over 22 years.1 B&W is located in West Point, Mississippi, and

operates a welding and steel fabrication facility where it builds

and welds industrial boilers and associated parts. B&W consists,

in part, of two large buildings called “shops,” where the boilers

are assembled and welded. These shops contain approximately 400

welding machines and three electrical sub-stations. High-voltage

power lines run throughout the shops.

Foreman was working at B&W as an “expeditor.”2 An expeditor

makes deliveries of necessary materials and supplies to the shops,

thereby expediting the manufacturing process. Expediters also

unload trucks, receive materials, work on computers, and store

inventory.3 Under a collective bargaining agreement (“CBA”)

1
Foreman testified that he began working at B&W on September
31, 1974.
2
Prior to working as an expeditor, Foreman worked at B&W as
a “helper,” “materialman assistant,” “laborer,” and janitor.
3
While the exact job description of an expeditor is disputed,
the following description, found within the record, sufficiently
captures its essence:

2
entered into with the workers’ union,4 Foreman’s seniority

entitled him to a “level seven” position as an expeditor.5

In March 1994, Foreman underwent surgery and had a pacemaker

installed by Dr. David H. Mulholland. In a letter dated May 3,

1994, Dr. Mullholland informed B&W that Foreman was medically

restricted from working within six feet of any welding equipment

because of possible electromagnetic interference with his

pacemaker. Dr. Mulholland further restricted Foreman from working

within 40-50 feet of the power lines which ran throughout the

shops. It is undisputed that these limitations effectively

precluded Foreman from working within the shop areas.

Receives, checks, verifies and stores incoming
storeroom material and products. Operates Lift Truck and
similar vehicles to move materials and products from one
location to another. Loads and unloads railroad cars,
trucks, etc. Expedites, moves and distributes items as
required. Identifies items received, storage containers,
bins, etc. Fills out purchase requisitions and submits
for approval. Signs for items received. Uncrates items,
obtains a running inventory on items in stock. Requires
a knowledge of the shops and the locations of the various
operations being performed.

Performs crane hooking and signals Crane Operator
and/or operates floor-operated jib and semi-gantry
cranes, two and four-wheeled hand trucks, crosstowns and
similar handling equipment. Works from prints, delivery
orders, freight bills, purchase orders or other written
and verbal instructions from Leader, salaried personnel
or employee being assisted. Keeps work areas, machinery,
and equipment clean and orderly.
4
The International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers, and Helpers, Local Lodge No.
903.
5
It is not clear from the record what salary Foreman received
as a level seven expeditor.

3
 On this same date, May 3, 1994, Foreman also presented to B&W

a short-term disability claim which was signed by Foreman’s

treating physician, Dr. Andrzej Wartak. This disability claim

stated that Foremen needed to miss work from March 25, 1994 until

June 13, 1994.

On June 13, 1994, Foreman did not return to work; instead, he

submitted another letter from Dr. Wartak stating that Foreman

should remain off work indefinitely. Dr. Wartak affirmed the work

restrictions as set forth by Dr. Mulholland (presumably in

anticipation of Foreman’s eventual return to work).

In September 1994, Foreman filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”) alleging

that B&W discriminated against him by not allowing him to return to

work as an expeditor, and by failing to reasonably accommodate him

with a new position. Foreman also filed a grievance with his

union. In response to Foreman’s complaints, on September 26, 1994,

B&W personnel manager Dale Ulbrich met with Foreman and union

representative Robert Shaffer for the purpose of discussing

Foreman’s return to work.

It is unclear what was discussed during this meeting.

Apparently, Foreman argued that he should be allowed to either

return to work as a level 7 expeditor, or be given another position

of comparable pay. B&W denied both requests. B&W told Foreman

that he could not return to work as an expeditor because the

medical restrictions imposed upon him by his doctor precluded him

from performing the essential job function of working in the shops.

4
B&W also told Foreman that it could not offer him other requested

positions because: (1) these positions did not exist or were not

available and (2) the “bona fide seniority provisions” of B&W’s CBA

prevented B&W from doing so.

Two weeks after this meeting, B&W offered Foreman a position

as a level 1 janitor, a position which Foreman had previously

held.6 B&W maintains that this was the only position which it

could offer Foreman given his qualifications, medical restrictions,

job availability, and the seniority provisions of the CBA. Foreman

accepted the position of janitor.

In May 1995, Foreman brought suit in federal court alleging

that B&W violated the Americans with Disabilities Act by failing to

accommodate his alleged disability. In July 1996, the case was

tried before a jury. At the close of Plaintiff’s case, B&W moved

for judgment as a matter of law. The district court held that

“Plaintiff has proved, in the Court’s opinion, that he has a

disability.” However, the district court denied B&W’s motion

pending further development of the facts “as to the essential

functions of an expeditor.”

At the close of all evidence, B&W made a renewed motion for

judgment as a matter of law, contending that no reasonable jury

could find either that Foreman was a qualified individual with a

disability under the ADA, or that B&W failed to reasonably

6
Foreman states that a level 1 janitor earns approximately
two dollars per hour less than a level 7 expeditor.

5
accommodate him. The district court granted B&W’s motion,

holding, inter alia, as follows:

I’m of the opinion that no reasonable
jurors could in fact find that the plaintiff,
under these circumstances, is a qualified
individual with a disability, in that the
plaintiff cannot perform the essential
functions of the job expeditor with or without
reasonable accommodation. It is not a
reasonable accommodation to require this
manufacturer defendant to eliminate an
essential function of the job of expeditor and
in effect create a new job for the plaintiff.

The district court did not address the issue of whether the “bona

fide seniority provisions” of B&W’s collective bargaining agreement

prevented B&W from giving Foreman another position. Foreman filed

the instant appeal.

STANDARD OF REVIEW

We review de novo the decision of a district court to grant

judgment as a matter of law, applying the same legal standard as it

used. Omnitech Int'l Inc. v. Clorox Co., 11 F.3d 1316, 1322-23

(5th Cir.1994). Judgment as a matter of law is proper after a

party has been fully heard by the jury on a given issue, and "there

is no legally sufficient evidentiary basis for a reasonable jury to

have found for that party with respect to that issue." FED. R.

CIV. P. 50(a). In evaluating such a motion, formerly referred to

as a motion for directed verdict, the court is to consider all of

the evidence (and not just that evidence which supports the

non-mover's case) in the light most favorable to the non-movant,

drawing all factual inferences in favor of the non-moving party,

6
and leaving credibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts

to the jury. Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505,

2513 (1986); Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir.

1994); Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en

banc). “A mere scintilla of evidence is insufficient to present a

question for the jury.” Boeing Co., 411 F.2d at 374. A motion for

judgment as a matter of law “should not be decided by which side

has the better of the case, nor should [it] be granted only when

there is a complete absence of probative facts to support a jury

verdict. There must be a conflict in substantial evidence to

create a jury question.” Id. at 374-75.

We must affirm a judgment of the district court if the result

is correct, even if our affirmance is upon grounds not relied upon

by the district court. Elizarraras v. Bank of El Paso, 631 F.2d

366 (5th Cir. 1980); see Stegmaier v. Trammell, 597 F.2d 1027 (5th

Cir. 1979) (it is firmly established that an appellate court must

affirm the lower court’s judgment if the result is correct even

though it is based upon an improper ground); Securities & Exchange

Commission v. Chenery Corp., 63 S. Ct. 454 (1943) (limiting the

rule to cases where appellate court need not make findings of

fact); Williams v. AgriBank, FCB, 972 F.2d 962, 964 (8th Cir. 1992)

(holding that a judgment can be affirmed on any grounds fairly

supported by the record); McKenzie v. Renberg’s Inc., 94 F.3d 1478

(10th Cir. 1996) (an appellee may defend the judgment won below any

7
ground supported by the record, even grounds not relied upon by the

district court), cert. denied, 117 S.Ct. 1498 (1997).

DISCUSSION

We hold that Foreman did not adduce evidence which would allow

a reasonable jury to find that he was disabled, as defined under

the Americans with Disabilities Act. For this reason, we hold that

judgment as a matter of law in favor of B&W is appropriate.

Alternatively, we hold that the district court did not err in

finding that Foreman failed to offer evidence upon which a jury

could reasonably conclude that he was qualified for the position of

expeditor, or that the accommodations which he requested were

reasonable.

The American with Disabilities Act

The American with Disabilities Act (“ADA”) is a federal anti-

discrimination statute designed to remove barriers which prevent

qualified individuals with disabilities from enjoying the same

employment opportunities that are available to individuals without

disabilities. 29 C.F.R. § 1630, App. (1996).7 The ADA expansively

prohibits discrimination in employment against people with

disabilities, providing that, “[n]o covered entity shall

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job

7
Pursuant to 42 U.S.C. § 12116, the Equal Employment
Opportunity Commission is authorized to issue regulations which
effectuate the purpose of the ADA.

8
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).

A "disability" includes a physical or mental impairment that

substantially limits one or more of an individual’s major life

activities. 42 U.S.C. § 12102(2). "Discrimination" includes “not

making reasonable accommodations to the known physical or mental

limitations of an otherwise qualified individual with a disability

who is an applicant or employee, unless such covered entity can

demonstrate that the accommodation would impose an undue hardship

on the operation of the business of such covered entity....” 42

U.S.C. § 12112(b)(5)(A).

Disability

Throughout this litigation, B&W has argued that Foreman is not

disabled, as defined under the ADA. If Foreman is not disabled, he

would not be entitled to a reasonable accommodation, nor would his

qualification for the position sought be relevant. Thus, the first

issue we must address is whether Foreman adduced evidence which

would allow a reasonable trier of fact to determine that he was

disabled. For the following reasons, we hold that he did not.

Under the ADA, a "disability" means: (1) a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual; (2) a record of such an impairment;

or (3) being regarded as having such an impairment. 42 U.S.C. §

12102(2). Foreman does not argue that he is entitled to relief

under the second part of this definition; however, he does argue

9
that he is entitled to relief under parts one and three.

Therefore, we must ask if Foreman had an impairment that

substantially limited one or more of his major life activities, or

was regarded by B&W as having such an impairment.

Substantial Limitation -- Foreman is considered disabled under

the ADA if he is substantially limited in a major life activity.

“Substantially limits" generally means (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 persons in

the general population can perform the same major life activity.

29 C.F.R. § 1630.2(j)(1). Foreman argues that his pacemaker

substantially limited him from the major life activity of working

as an expeditor at the B&W facility. We disagree.

Pursuant to the Code of Federal Regulations, “[t]he term

substantially limits means 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 comparable

training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3) (1996)

(emphasis in original).8 “The inability to perform a single,

8
“The terms ‘number and types of jobs’ and ‘number and types of
other jobs’ ... are not intended to require an onerous evidentiary
showing. Rather, the terms only require the presentation of
evidence of general employment demographics and/or of recognized
occupational classifications that indicate the approximate number
of jobs (e.g., ‘few’, ‘many’, ‘most’) from which an individual

10
particular job does not constitute a substantial limitation in the

major life activity of working.” Id. “Thus, an individual is not

substantially limited in working just because he or she is unable

to perform a particular job for one employer, or because he or she

is unable to perform a specialized job or profession requiring

extraordinary skill, prowess, or talent.” 29 C.F.R. § 1630.2(j),

App. (1996); see Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 727

(1995). “The determination of whether an individual is

substantially limited in a major life activity must be made on a

case by case basis, without regard to mitigating measures such as

medicines, or assistive or prosthetic devices.” C.F.R. §

1630.2(j), App. (1996).

After reviewing the entire record, we hold that Foreman has

offered no evidence upon which a jury could conclude that his heart

condition, prior to the installation of his pacemaker,

significantly restricted his ability to perform either a class of

jobs or a broad range of jobs in various classes as compared to the

average person having comparable training, skills and abilities.

Likewise, Foreman has offered no evidence upon which a jury could

conclude that his heart condition significantly restricted his

ability to perform either a class of jobs or a broad range of jobs

even after the installation of his pacemaker. At trial and on

appeal, Foreman argues that the only job which he was substantially

limited from performing with his pacemaker was that of an

would be excluded because of an impairment.” 29 C.F.R. §
1630.2(j), App. (1996).

11
expeditor. In fact, Foreman argues that he is fully capable of

performing virtually every other job at the plant. The record is

replete with such evidence.9 Because the evidence so

overwhelmingly indicates that Foreman was substantially limited by

his alleged disability from performing only a single, particular

job, a jury could not reasonably find that he has a substantial

limitation in the major life activity of working, as contemplated

by the ADA.

Regarded as Having a Disability -- Even though Foreman does

not have a substantial limitation in the major life activity of

working, he may fall within the statutory definition of disability

if he was regarded by B&W as being disabled. There are three

different ways in which an individual may satisfy the definition of

“being regarded as having a disability”:

9
For example, in his affidavit, Foreman states: “[T]he
pacemaker does not keep me from doing any job at B&W so long as I
am not within six (6) feet of an arc welder. Based on my
experience at B&W, any job at B&W is within my capability except
the actual operation of the welder and other jobs directly
pertaining to welding.” In his discrimination charge, Foreman
states, “there are many jobs that I could do at B&W....” In his
own deposition, Foreman states, “[b]ased on my experience at B&W,
any job at B&W is within my capability except the actual operation
of the welder and other jobs directly pertaining to welding.” In
a letter by union President Robert Shaffer, which was offered as an
exhibit by Foreman, Shaffer states, “[t]here are over 100 salary
positions that I believe should be considered....” When asked at
deposition whether “there is any type of work that you contend that
you are not able to do,” Foreman replied, “No sir ... other than
maybe digging ditches or things like that....” Foreman’s doctor
stated by letter that, “[w]ith his permanent pacemaker he will have
one restriction, he will be unable to work around arc welding
equipment. He will be able to perform other duties as long as he
stays at least six feet away from an arc welder.”

12
 (1) [If he 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) [If he 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) [If he has] none of the impairments
defined in paragraph (h)(1) or (2) of this
section but is treated by a covered entity as
having a substantially limiting impairment.

29 C.F.R. § 1630.2(l). Only subpart (1) is relevant to the instant

case.

An individual satisfies subpart (1) of this definition if he

has an impairment that is not substantially limiting, but the

employer perceives the impairment as being substantially limiting.

29 C.F.R. § 1630.2(l), App. (1996). An employer does not

necessarily regard an employee as having a substantially limiting

impairment simply because it believes that she is incapable of

performing a particular job; the statutory reference to a

substantial limitation indicates instead that an employer regards

an employee as substantially limited in his or her ability to work

by finding the employee's impairment to foreclose generally the

type of employment involved. Ellison v. Software Spectrum, Inc.,

85 F.3d 187, 192 (5th Cir. 1996); see also 29 C.F.R. §

1630.2(j)(3)(I).

While it is uncontroverted that Foreman does have a heart

impairment, as stated earlier, his impairment does not

substantially limit a major life activity. Thus, for purposes of

13
satisfying subpart (1) of the definition, the question is whether

Foreman was treated by B&W as having an impairment that

substantially limits a major life activity. After thoroughly and

carefully reviewing the entire record, we find no evidence upon

which a reasonable jury could determine that B&W perceived or

treated Foreman’s condition as being substantially limiting, as

defined under the ADA.10 Accordingly, Foreman has not shown that

10
In fact, our review of the record indicates otherwise. When
questioned on direct examination, B&W Training Coordinator Joe
Stallings stated:

A I wanted Earl to come back to work. I very well knew how
to sympathize with him in his condition. The doctor hadn’t
said that he wasn’t able to work. I certainly sympathize with
him.

Q Why did you sympathize so much with him?

A Because I’ve suffered four heart attacks and bypass surgery
myself, and I was blessed well enough that there was not any
restriction, you know, placed on me and, you know, I could
very well sympathize the way he was feeling.

On cross-examination, Stallings stated:

Q Did you have any problems with Mr. Foreman coming back to
work when his doctors would release him?

A No, sir. I would have liked for Earl to come back to work
because he was not disabled.

Q You didn’t regard him as disabled?

A No, sir.

***

When questioned on direct examination, B&W Personnel Manager Dale
Ulbrich stated:

Q Did you have any problem ever returning Mr. Foreman to work
if he could perform the job?

A Absolutely not. That’s why we have employees. We need

14
 employees to do the work.

***

Q Had Mr. Stallings had any discussions with you before
September 26, 1994 relative to Earl’s condition?

A Yes. We did have some discussions. On several occasions,
Joe had told me that Earl had talked to him about getting his
disability retirement. We discussed what those procedures
were. That he would have to have a statement from his doctor
saying he was totally and permanently disabled. That’s the
requirement of our pension board down in New Orleans. At that
time Joe asked if there was anything we could do to help him.
That he sympathized with Earl. And I said it was strictly up
to the physicians to determine whether or not he was disabled.
But at this point, there was nothing saying he was disabled.

***

Q Let me ask you this. At that time did you consider Earl
disabled, unable to return to employment?

A No. Absolutely not. Any medical statements that we had
said that he only had restrictions being around medical
equipment.

Q Medical Equipment?

A I’m sorry. Electrical equipment. I’m sorry. Beyond that,
the doctors’ statements said he could perform any other
function. Earl, himself, as well as Robert, said that he was
strong as an ox, strong in the back, that he could do
anything. And that he, himself, felt that he could do any job
either inside or outside of B&W, for that matter. I had no
reason to believe he was disabled. I have known lot [sic] of
people who have had pacemakers. Never considered them
disabled. Joe has had a lot of heart problems. He’s very
physically active. In fact, the fellow that introduced me to
my wife 20 years ago yesterday -- I forgot our anniversary, by
the way -- 20 years ago yesterday has a pacemaker. He rides
horses, ranches, farms. So I had no reason to believe that
earl was in any way disabled because of a pacemaker. And also
based on what he said and what his doctor said.

While Foreman alleges that Stallings had “heard enough” and was
“determined” to place Foreman on disability retirement, the
uncontroverted fact is that B&W continued to employ him, in spite
of his heart condition. “An employer’s belief that an employee is
unable to perform one task with an adequate safety margin does not

15
he was regarded by B&W as being disabled.

Qualified Individual

Alternatively, even if Foreman was disabled as defined under

the ADA, he offered no evidence upon which a jury could find that

he was a qualified individual. Under the ADA,

[t]he term "qualified individual with a
disability" means 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. For the purposes
of this subchapter, consideration shall be
given to the employer's judgment as to what
functions of a job are essential....

42 U.S.C. § 12111. Thus, “[w]hile the ADA focuses on eradicating

barriers, the ADA does not relieve a disabled employee or applicant

from the obligation to perform the essential functions of the job.

To the contrary, the ADA is intended to enable disabled persons to

compete in the work-place based on the same performance standards

and requirements that employers expect of persons who are not

disabled.” 29 C.F.R. § 1630, App. Background (1996).

establish per se that the employer regards the employee as having
a substantial limitation on his ability to work in general.”
Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993); see also
Forrisi v. Bowen, 794 F.2d 931 (4th Cir. 1986) (holding that an
employer did not regard the employee as handicapped simply because
it found that he could not meet the demands of a particular job).
B&W’s perception that Foreman was able to work in other areas was
evinced by its retention of Foreman in a position that did not
require him to go into the shop area. While we recognize that the
position which Foreman was given was less desirable than that which
he had held, the record overwhelmingly supports B&W’s contention
that the collective bargaining agreement guided B&W’s placement of
Foreman, as opposed to any perception by B&W that Foreman was
substantially limited.

16
 The record is replete with evidence that an essential function

of the expeditor’s job is to carry materials into the shop areas.11

11
On cross-examination, Stallings responded as follows:

Q Based on your 33 years of experience, do you know of
any reason why the company could not have sent Mr.
Foreman back as an expeditor and told the expeditors,
Y’all try to work this out without him going into the
shop and see if that works out for you, for him to do the
job with all of the duties except going into the shop, do
you know of any reason why the company couldn’t have done
that?

A First off, the expeditor classification, as all
other classifications, are negotiated through our
bargaining agent, which is Local 903. Going into the
shop is a major function of the expeditor classification.
And if you allow one employee the privilege in a case
like that on a permanent basis, well, it could very well
cause a lot of confusion within our contract and with our
union members and cause confusion, you know, plant wide.

On direct examination, Ulbrich stated:

A As the name implies, the very reason for the
existence of an expeditor is to move materials and parts
from our storeroom to the employees on the floor so that
they can produce the products that we build. It is the
very reason it exists.

***

The absolutely most important job of an expeditor is
to move the parts from the warehouse into the assembly
areas in the shop or from one area of the shop to another
area of the shop. The other duties, there are some that
are important but they all serve that main function. For
instance, they have to unload trucks. The reason you
unload a truck is so that you can move it into the shop
later. They work in the warehouse sometimes. The reason
they pull or in the warehouse and pull things out of the
warehouse are to get them to the shop. So probably the,
after the main function of delivering to the shop, the
second most important function would probably be
unloading trucks. And then there are also some paperwork
things involved, record keeping.

Q All right. Let me ask you this. Is one expeditor
expected to, say, deliver into the shop and another only

17
 expected to unload trucks and then maybe another one only
to put into the storeroom, or how that is done?

A All expeditors are required to do all functions of
that job. One of the main problems we have in our whole
assembly process or manufacturing process is getting
various parts to the assemblers on time....

So it is, therefore, very critical that every
expeditor be able to get things into the shop. And that
shipments are not delayed because one expeditor is just
doing paperwork or just unloading trucks. Every
expeditor has to make deliveries as soon as possible to
make the operation as efficient as possible.

***

Every exeditor is required to deliver to the shop.
That is important to that job as, you know, it would be
like a trial attorney that can’t come into court. They
all have to do that. Taxi cab driver has to be able to
drive a taxi cab. I mean, that is the main reason that
the job exists. We require every expeditor to go into
the shop.

***

All of them are supposed to go into the shop on a
daily basis. There are job descriptions that have been
written. They are presented to the union and discussed
with the union before they’re put into effect. Everybody
in that job classification draws the same rate of pay.
And therefore everyone is expected to do the total of
that job.

Q Let me ask you this. On the day shift how many
expeditors do you have?

A We have four expeditors on day shift.

Q And on second shift how many?

A One.

On cross-examination, Foreman responded as follows:

Q Now, the job of expeditor has different
functions, doesn’t it?

A Yes.

18
While it is true that the expeditor’s job is not limited to this

role, it is uncontroverted that going into the shop area

constitutes at least 20-30% of the expeditor’s responsibility.12

Based upon the record before us, we hold that the district court

did not err in determining that going into the shop area is an

essential function of the expeditor’s job, and that Foreman’s

pacemaker rendered him medically unqualified to perform that

essential function.

Reasonable Accommodation

Foreman argues that the district court erred by holding that

B&W was not obligated to provide a reasonable accommodation for the

limitations arising from his alleged disability. In support of his

argument, Foreman asserts that he is entitled to either of two

Q But certainly one of the functions, and an important
function of the expeditor, is to get the material out of
the storeroom into the shop area so that the boilers and
the parts can be made: isn’t that true?

A True.

***

Q And the role of the expeditor is to get the material
in that shop so it can be manufactured, isn’t it?

A Yes.

12
On direct examination, when asked how much time an expeditor
spends in the shop, Foreman’s witness, fellow expeditor Ronnie
Cliett, stated: “I would say on a good day about a third, I
guess.” On direct examination, Ulbrich stated: “That could vary
from day to day. Anywhere from a third of an expeditor’s time up
to 60 percent, 50 or 60 percent or more. And some expeditors might
be required and are required to be in the shop all day.”

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proposed accommodations: a new job or an alteration of his

existing job responsibilities. Specifically, he argues that he is

entitled to at least one of the “100 salary positions” of which he

claims he is capable of performing, or an alteration to his job as

an expeditor, such that he not be required to make deliveries into

the shop areas. After reviewing the entire record, we hold that,

even if Foreman was disabled and qualified under the ADA, his

requested accommodations are not reasonable.

The ADA defines "Reasonable Accommodation" as follows:

The term "reasonable accommodation" may
include--

(A) making existing facilities used by
employees readily accessible to and usable by
individual with disabilities; and

(B) job restructuring, part-time or modified
work schedules, reassignment to a vacant
position, acquisition or modification of
equipment of devices, appropriate adjustment
or modifications of examinations, training
materials or policies, the provision of
qualified readers or interpreters, and other
similar accommodations for individuals with
disabilities.

42 U.S.C. § 12111. An employer is not required to create “light

duty” jobs to accommodate. Turco v. Hoechst Celanese Chemical

Group, Inc., 101 F.3d 1090, 1094 (5th Cir. 1996).

In granting judgment as a matter of law in favor of B&W, the

district court held, inter alia:

In effect, what the plaintiff is asking this
court to do is hold that a new job or a new
job category should be created to accommodate
him. That job category would be that of an
expeditor but without having to supply the
materials to the shop to expedite production.

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 ***

[H]ere the plaintiff is not seeking
merely restructure of this job.
...[P]lainiff seeks to entirely change one of
his primary job functions.

***

It is not a reasonable accommodation to
require this manufacturer defendant to
eliminate an essential function of the job of
expeditor and in effect create a new job for
the plaintiff.

Foreman admits that, under the terms of the CBA, he would not

otherwise be entitled to the reassignments which he seeks because

he does not have the requisite seniority.13 However, Foreman argues

that the seniority provisions of the CBA violate the ADA because

they preclude B&W from offering him these reassignments. Foreman

argues that B&W’s obligation to accommodate him under the ADA

trumps B&W’s obligation to honor its seniority provisions under the

collective bargaining agreement. We disagree.

Following the other circuits which have considered this issue,

13
On cross-examination, Foreman stated:

Q Now, of course, you know that under the union contract
the company can’t just arbitrarily place people in
different jobs, because under the provisions of the
contract they have to have previously worked in that job
and have the necessary seniority?

A Yes.

Q And you don’t expect the company to violate the union
contract, do you?

A I never have.

Q And you wouldn’t want them to, would you?

A No, sir.

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we hold that the ADA does not require an employer to take action

inconsistent with the contractual rights of other workers under a

collective bargaining agreement. See Benson v. Northwest Airlines,

Inc., 62 F.3d 1108, 1114 (8th Cir. 1995); Eckles v. Consolidated

Rail Corp., 94 F.3d 1041, 1051 (7th Cir. 1996) (“After examining

the text, background, and legislative history of the ADA duty of

‘reasonable accommodation’, we conclude that the ADA does not

require disabled individuals to be accommodated by sacrificing the

collectively bargained, bona fide seniority rights of other

employees.”), cert. denied, 117 S.Ct. 1318 (1997); Milton v.

Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (recognizing

that plaintiffs' collective bargaining agreement prohibits their

transfer to any other job because plaintiffs lack the requisite

seniority).

Regardless, even if there were no CBA in place, B&W would not

be obligated to accommodate Foreman by reassigning him to a new

position. “[W]e do not read the ADA as requiring affirmative

action in favor of individuals with disabilities, in the sense of

requiring disabled persons be given priority in hiring or

reassignment over those who are not disabled. It prohibits

employment discrimination against qualified individuals with

disabilities, no more and no less.” Daugherty v. City of El Paso,

56 F.3d 695 (5th Cir. 1995), cert. denied, 116 S.Ct. 1263 (1997).

Additionally, Foreman offers no evidence showing that any of

the requested positions are, or were, available. For the

accommodation of a reassignment to be reasonable, it is clear that

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a position must first exist and be vacant. Under the ADA, an

employer is not required to give what it does not have. Foreman

also fails to offer evidence showing that he is otherwise qualified

to meet the hiring criteria for these requested positions.14 In

other words, he has failed to establish that he possesses the

requisite skill, experience, education, and other job-related

requirements to qualify for these positions. Indeed, the record is

bare as to what those prerequisites might be. In short, Foreman

has not offered evidence upon which a reasonable jury could find

that he is entitled to the accommodations sought.

CONCLUSION

Foreman did not adduce evidence which would allow a reasonable

jury to find that he was disabled, as defined under the ADA. For

this reason, we hold that judgment as a matter of law in favor of

B&W is appropriate. Alternatively, we hold that the district court

did not err in finding that Foreman failed to offer evidence upon

which a jury could reasonably conclude that he was qualified for

the position of expeditor, or that the accommodations which he

requested were reasonable. For these reasons, the judgment of the

district court is AFFIRMED.

14
The determination of qualification is two-fold: (1) whether
the individual meets the necessary prerequisites for the job, such
as education, experience, skills, and the like; and (2) whether the
individual can perform the essential job functions, with or without
reasonable accommodation. See 42 U.S.C. § 12111(8); 29 C.F.R. §
1630.2(m)(1994)

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