IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-50081
Summary Calendar
BETTY MARIE DUSING,
Plaintiff-Appellant,
versus
TOGO D. WEST, JR.,
in his official capacity as United States Secretary of the Army,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Texas
(EP-92-CV-21)
November 20, 1997
Before JOHNSON, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
The executrix of John Addis’ estate, Betty Marie Dusing,
appeals the district court’s finding that John Addis was not
“otherwise qualified” within the meaning of the Rehabilitation Act.
Specifically, Dusing argues that the district court erred in
requiring her, rather than the Army (Addis’ former employer), to
prove that Addis remained qualified after taking disability
retirement. She also argues that the district court erred by
ignoring evidence that Addis continued to be capable of performing
*
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this opinion should not be published and is not precedent except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.
work after taking disability retirement.
The district court did not err in requiring Dusing to prove
that Addis was “otherwise qualified.” In this circuit, a
Rehabilitation Act plaintiff bears the burden of proving that he or
she is otherwise qualified, or capable of performing the essential
functions of a given job. Chandler v. City of Dallas, 2 F.3d 1385,
1390 (5th Cir. 1993). To determine whether an individual is
otherwise qualified for a given job, we conduct a two part inquiry.
Id. at 1393. First, we determine whether the individual can
perform the essential functions of the job. Id. Second, if (but
only if) we conclude that the individual is not capable of
performing the essential functions of the job, we then determine
whether any reasonable accommodation by the employer would enable
the individual to perform those functions. Id. at 1393-94. If the
employee demonstrates that the suggested accommodation is
reasonable in the “run of cases,” an employer may still prevail by
carrying its burden of proof on one of two affirmative defenses:
undue burden or business necessity. Reil v. Electronic Data Sys.
Corp., 99 F.3d 678, 681-82 (5th Cir. 1996).
Dusing argues that the district court erred by requiring her
to prove that Addis was otherwise qualified without considering
what she has termed the “burden shifting effect” of Addis’
requested accommodation. However, the district court found that
Addis could not be accommodated such that he could perform the
essential elements of his position. Dusing has not challenged that
finding. Therefore, the reasonableness of the accommodation is not
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at issue. Clearly, the district court did not err by requiring
Dusing to prove that Addis was otherwise qualified.
Dusing invites us to depart from this circuit’s well settled
precedent and carve out an exception to our rules allocating
burdens of proof when the factors of progressive illness and
hostile work environment are present. We decline this invitation.
As discussed above, a Rehabilitation Act plaintiff bears the burden
of proving that he or she is otherwise qualified. Chandler, 2 F.3d
at 1394; Chiari v. City of League City, 920 F.2d 311, 315 (5th Cir.
1991).
The district court’s finding that Addis was not a qualified
individual with a handicap under the Rehabilitation Act was not
clearly erroneous. Whether an employee is a qualified individual
with a handicap is a question of fact to be reviewed for clear
error. Leckelt v. Bd. of Comm’rs of Hosp. Dist. No. 1, 909 F.2d
820, 827 (5th Cir. 1990). After carefully reviewing the record, we
conclude that the district court’s finding is plausible in light of
the record as a whole. See United States v. Bermea, 30 F.3d 1539,
1575 (5th Cir. 1994), cert. denied, 514 U.S. 1097 (1995).
Therefore, for the foregoing reasons, the District Court’s
judgment is
AFFIRMED.
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