IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 96-11546
__________________________
CHRISTINE LOUGHMAN,
Plaintiff-Appellant,
versus
SOUTHWESTERN BELL TELEPHONE COMPANY,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
Dallas Division
(3:95-CV-2828-T)
___________________________________________________
October 28, 1997
Before KING, DUHÉ and WIENER, Circuit Judges
PER CURIAM*:
Plaintiff-Appellant Christine Loughman appeals the district
court’s grant of summary judgment in favor of her former employer,
Defendant-Appellee Southwestern Bell Telephone Company (SWBT),
dismissing her claim of discrimination under the Americans with
*
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this opinion should not be published and is not precedent except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.
Disabilities Act (ADA).1 Concluding that the district court’s sua
sponte grant of SWBT’s motion was made without Loughman’s being
furnished notice as required by FED. R. CIV. P. 56(c), we reverse
and remand for further proceedings.
I.
FACTS AND PROCEEDINGS
Loughman went to work for SWBT as a service representative for
SWBT in November 1989, handling customer calls and entering service
orders and other data into a computer. In 1990, she began to show
signs of carpal tunnel syndrome —— a repetitive stress disorder
that can be associated with sustained typing —— in her right hand.
After a positive diagnosis, she underwent carpal tunnel release
surgery in 1992. In 1993, she underwent similar surgery for her
left wrist after experiencing pain in her left hand.
Following the 1993 surgery, her physician imposed a work
restriction requiring her to take one fifteen-minute break each
hour. During each such break, Loughman was not to type but would
be permitted to perform other tasks. SWBT refused to implement the
work restriction,2 which refusal allegedly caused Loughman further
1
42 U.S.C. §12101 et seq. (1994).
2
Loughman claims, on appeal, that SWBT permitted her to work
under the conditions prescribed by her physician from May to
October of 1994, after which SWBT discontinued its accommodation.
This contention appears to be inconsistent with Loughman’s
complaint and her affidavit in support of her response to SWBT’s
motion for summary judgment. SWBT does not acknowledge that it
complied with the work restriction at any time.
2
injury. In November 1994, her physician advised her to take a
leave of absence from work until January 1995. In response to her
doctor’s recommendation, SWBT placed Loughman on thirty days leave
without pay. She returned to work in January 1995 but SWBT
continued to deny her the prescribed typing breaks. Loughman
claims that SWBT’s refusal resulted in further injury that required
yet another surgery in May 1995.
After the 1995 surgery, Loughman’s physician released her to
work in August but with permanent restrictions, including “no
typing for more than thirty minutes at a time, with five minute
breaks in between.” SWBT did not permit Loughman to work with
these typing breaks when she returned. It concluded —— based upon
an internal study of service representatives and a videotape study
of Loughman’s work —— that no accommodation was necessary;
according to these studies, Loughman’s job did not require thirty
minutes of continuous typing and, in fact, afforded her more non-
typing time than prescribed by her doctors. Loughman refused to
return to work without an accommodation authorizing the typing
breaks prescribed by her physician,3 and filed a Charge of
Discrimination with the EEOC, leading to this case.
Loughman brought suit charging that SWBT discriminated against
her, in violation of §12112(a), by refusing to accommodate her
physical limitations. SWBT moved for summary judgment solely on
3
SWBT claims that it deemed Loughman to have abandoned her job
after her benefits expired; Loughman claims that SWBT fired her.
3
the ground that Loughman was not a “qualified individual with a
disability” within the meaning of the ADA, and thus could not make
out a prima facie case under the Act.4 The district court agreed
that Loughman could not establish a prima facie case, but on a
ground entirely different from the one urged in SWBT’s motion for
summary judgment. In fact, for purposes of ruling on SWBT’s
motion, the court assumed that the conditions precedent to a
discrimination claim under the ADA had been met, i.e., that
Loughman suffered from a disability and that she was qualified to
perform the essential functions of her job. Nevertheless, the
court determined that, under those of the facts that are
undisputed, Loughman was not the victim of unlawful discrimination,
and dismissed her case.
In its order, the district court characterized Loughman’s
discrimination claim as requiring her to show “(1) that she is a
disabled person within the meaning of the ADA; (2) that she is
qualified to perform the essential functions of her job, with or
without reasonable accommodation; and (3) that Southwestern Bell
discriminated against her because of her disability.” With respect
to the third element, the court appears to have conflated what this
4
To establish a prima facie case of intentional discrimination
under the ADA, the plaintiff must either present direct evidence of
discrimination or show that: “(1) he or she suffers from a
disability; (2) he or she is qualified for the job; (3) he or she
was subject to an adverse employment action; and (4) he or she was
replaced by a non-disabled person or was treated less favorably
than non-disabled employees.” Daigle v. Liberty Life Ins. Co., 70
F.3d 394, 396 (5th Cir. 1995).
4
Circuit recognizes as two separate elements needed to establish a
prima facie case of discrimination under the ADA.5 Among other
things, the plaintiff must show both (1) that the defendant took an
adverse employment action against the plaintiff, and (2) that the
defendant replaced the plaintiff with a non-disabled person or
treated the plaintiff less favorably than non-disabled employees.
The district court based its determination on SWBT’s internal
service representative study and video tape study of Loughman
individually. The internal study indicated that service
representatives averaged 11.1 minutes of typing per hour, with a
standard deviation of 6.9 minutes. An analysis of the video tape
study, according to a SWBT disabilities service manager, showed
that Loughman spent most of her time at work talking, thinking and
listening, rather then entering data into a computer. The studies
reflected that the average service representative spends less than
twenty minutes per hour actually typing and that Loughman’s work
did not require continuous data entry. The court concluded that,
inasmuch as the physician-mandated work restriction was already a
facet of Loughman’s job, the typing breaks were not a necessary
accommodation under the ADA and, as a result, SWBT acted reasonably
and not discriminatorily in refusing to implement the prescribed
breaks. In drawing its conclusion, the court relied additionally
5
Daigle, 70 F.3d at 396; Burch v. Coca-Cola Co., 119 F.3d
305, 320 (5th Cir. 1997). This conflation, however, does not
affect our analysis of the district court’s order.
5
on Loughman’s failure to point to any evidence indicating the
amount of time that she actually spent typing as well as her
failure to contest the validity of SWBT’s studies. Dismissing as
insufficient the “vague” statement in Loughman’s affidavit that she
typed “extensively,” the court determined that no evidence
contradicted the results of SWBT’s studies.
Loughman timely appeals the district court’s order, arguing
that it granted summary judgment sua sponte on an entirely
different ground than the one advanced by SWBT in its summary
judgment motion. She contends that the court thus erred reversibly
when it granted summary judgment without providing her ten days
notice of its intention to consider granting the motion on grounds
other than those advanced by the movant. Alternatively, Loughman
argues that even if the court’s consideration of the discrimination
question was proper, it nonetheless erred in granting the motion
because there was sufficient evidence in the record to create a
fact issue on the matter. As evidence that the prescribed work
restrictions were necessary and that SWBT’s refusal to implement
them thus constitutes discrimination against her on the basis of
her disability, Loughman points, inter alia, to the facts that (1)
she was injured in the course of performing her job without the
recommended breaks, (2) her treating physician disagreed with the
results of the service representative study, and (3) given the
opportunity, she would have contested the accuracy of the studies.
II.
6
ANALYSIS
A. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de
novo, applying the same standards as the district court.6 Summary
judgment is proper when the evidence, viewed in the light most
favorable to the nonmoving party, shows that there is no genuine
issue of material fact and that the moving party is entitled to
judgment as a matter of law.7
B. APPLICABLE LAW8
A district court cannot grant summary judgment sua sponte
unless it gives ten days notice to the adverse party.9 Absent
6
Melton v. Teachers Ins. & Annuity Ass’n of America, 114 F.3d
557, 559 (5th Cir. 1997).
7
River Prod. Co., Inc. v. Baker Hughes Prod. Tools, Inc., 98
F.3d 857, 859 (5th Cir. 1996)(citing Fed. R. Civ. P. 56(c)).
8
We do not address whether Loughman discharged her burden of
producing evidence on the discrimination question as we agree with
her contention that the court erred by considering the motion on
its own grounds without giving her proper notice. As an
alternative basis for affirming the district court’s order, SWBT
reurges the original grounds upon which it sought summary judgment,
i.e., that Loughman cannot prove that she is a qualified individual
with a disability within the meaning of the ADA. Notwithstanding
our de novo review of orders granting summary judgment, we decline
to address this issue given that (1) the district judge assumed,
without deciding, that Loughman was a qualified individual with a
disability, and (2) the issue was not briefed by Loughman and was
not raised as a point of error; rather, it was raised by SWBT as an
alternative ground for affirmance. Even so, we have the distinct
impression that the summary judgment evidence in the record on
appeal is sufficient to demonstrate the existence of material
issues of fact on the question of ADA discrimination.
9
Judwin Properties, Inc. v. United States Fire Ins. Co., 973
F.2d 432, 436-37 (5th Cir. 1992); John Deere Co. v. American Nat’l
7
formal notice, the nonmoving party may nevertheless be deemed to be
on notice —— enabling a court to enter summary judgment sua sponte
—— if the basis on which the motion is granted is otherwise raised
in a manner sufficient to make the nonmoving party aware that
failure to present evidence on the issue could be grounds for
summary judgment.10
SWBT argues that the district court did not enter summary
judgment sua sponte. Rather, insists SWBT, the court did not act
of its own volition or without prompting from a party, but in
response to SWBT’s detailed motion. In so arguing, SWBT
misconstrues the meaning of “sua sponte” in the context of summary
judgment consideration. A court enters a summary judgment sua
sponte when it grants the motion on grounds other than those urged
by the movant.11 In such instances, FED. R. CIV. P. 56(c)’s ten-day
notice requirement mandates that the court afford the nonmoving
party “an opportunity to respond and develop the record in
Bank, 809 F.2d 1190, 1191 (5th Cir. 1987); Capital Films Corp. v.
Charles Fries Prods., Inc., 628 F.2d 387, 391 (5th Cir. 1980).
10
See John Deere, 809 F.2d at 1191; See also Celotex Corp. v.
Catrett, 477 U.S. 317, 326 (1986) (“[D]istrict courts are widely
acknowledged to possess the power to enter summary judgment sua
sponte, so long as the losing party was on notice that she had to
come forward with all of her evidence.”).
11
See John Deere, 809 F.2d at 1192 (“Since the district court
relied on grounds not advanced by the moving party as a basis for
granting summary judgment, and did not give proper notice to the
[adverse party] before granting judgment on such grounds, its
judgment cannot be upheld on appeal.”); see also Judwin, 973 F.2d
at 436-37.
8
opposition to requested summary judgment.”12
SWBT further argues that Loughman was on notice that SWBT was
seeking summary judgment on the ground that she could not meet her
burden of production on any of the elements of her discrimination
claim, expressly including the question whether SWBT’s denial of
the prescribed typing breaks constituted an adverse employment
action. In support of its argument, SWBT maintains that Loughman
was aware that her ADA claim was being challenged in its entirety
and that SWBT had offered undisputed summary judgment evidence that
she was not required to type for periods longer than recommended by
her doctors.
Our review of SWBT’s motion and its brief filed in the
district court in support of that motion convinces us that the
necessity of Loughman’s medical restrictions —— and, therefore, the
question whether SWBT’s refusal to implement her requested
accommodation amounted to an adverse employment action —— was not
raised in a manner sufficient to put Loughman on notice that her
failure to present evidence on the issue could be grounds for a
summary judgment dismissing her claims. At the outset of its
motion, SWBT explicitly stated that summary judgment should be
entered because Loughman could not prove an essential element of
her claim —— namely, that she is a qualified individual with a
disability. Likewise, SWBT’s district court brief in support of
12
John Deere, 809 F.2d at 1192, n. 2
9
its motion is dedicated exclusively to advocating dismissal on that
ground. SWBT mentions the issue on which the district court
granted summary judgment only in passing, noting that, “[o]ne does
not reach the reasonableness of the accommodation sought until
first establishing that the plaintiff is disabled within the
meaning of the ADA.” SWBT did not propose dismissal on the adverse
employment action element of Loughman’s claim until its reply brief
in support of its motion, by which time Loughman could not have
presented evidence on the issue for the court’s consideration.
SWBT also argues that even if the court’s order was entered
sua sponte, it still should stand because the deadline for
designating testifying experts and expert reports, as mandated by
the Scheduling Order, had passed by the time the court considered
the motion. Thus, asserts SWBT, even if Loughman had received the
ten-day notice, it would have been to no avail because she could
not have introduced testimony to controvert SWBT’s evidence that
the requested accommodation was unnecessary. Even assuming,
arguendo, that Loughman were precluded from presenting
controverting expert testimony, such preclusion would not be fatal
to her case. We are not persuaded that expert testimony would be
required to create genuine issues of material fact concerning the
necessity of Loughman’s proposed accommodation.13 In fact, we
discern that, in its present state, the record contains disputed
13
Loughman, with or without the assistance of expert testimony,
could challenge the validity of the SWBT studies relied on by the
district court in finding that the requested accommodation was
unnecessary.
10
factual issues on that very question.
When a district court enters summary judgment sua sponte
without ensuring that the nonmoving party has had adequate notice
of the court’s intentions, we are constrained to reverse. The
nonmovant is entitled to an opportunity to present his case to the
court prior to such a dismissal, “[e]ven though summary judgment
may have been proper on the merits.”14 Under the instant
circumstances, Loughman was deprived of such an opportunity.
III.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is REVERSED and REMANDED for further proceedings consistent with
this opinion.
14
Judwin, 973 F.2d at 437. See also John Deere 809 F.2d at
1192 (“Since the district court’s grant of summary judgment was not
based on grounds advanced by the [defendant], and no opportunity
was given to [the plaintiff] to respond, we must reverse.”).
11