IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 98-21016
Summary Calendar
____________________
SAMUEL HERNANDEZ,
Plaintiff-Appellant,
v.
ALDINE INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-97-CV-2942)
_________________________________________________________________
August 4, 1999
Before KING, Chief Judge, STEWART and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Samuel Hernandez appeals from the
district court’s grant of summary judgment on his Americans with
Disabilities Act claim in favor of defendant-appellee Aldine
Independent School District. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
The facts of this case are straightforward. In 1984,
plaintiff-appellant Samuel Hernandez began working for defendant-
appellee Aldine Independent School District (“AISD” or “the
District”) as a custodian. In 1991, Hernandez injured his back
*
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this opinion should not be published and is not precedent except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.
while moving desks for the District, and in 1992, he suffered
another injury while on the job. After the second injury,
Hernandez’s physician imposed certain work restrictions on him,
and the District placed him in its light duty program, in which
Hernandez remained from August 1992 until October 1993, when his
doctor decided that he should discontinue working. After
undergoing back surgery, Hernandez reentered the District’s light
duty program in January 1995 but ceased working on March 25, 1996
in order to have another surgery.
On January 6, 1997, Hernandez’s physicians cleared him to
return to light duty work. According to Hernandez’s affidavit,
the doctors told him that he had “reached maximum medical
improvement” and had “sustained permanent physical impairment of
sixteen percent to thirty-two percent” to his entire body as a
result of his back injury. That same day, Hernandez reapplied
for a light duty custodial position with the District, but Edwin
Mercado, one of his supervisors, told him that his work
restrictions would prevent him from doing any manual labor.
Hernandez later obtained employment elsewhere as a security
guard.
On July 10, 1997, Hernandez filed suit in Texas state court
against the District alleging disability discrimination under the
Texas Commission on Human Rights Act, TEX. LAB. CODE §§ 21.001-
.306. On August 18, 1997, Hernandez amended his complaint to add
claims for disability discrimination under the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12213, and Title VII of the
2
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, and for
intentional infliction of emotional distress under Texas common
law. The District then removed the suit to the United States
District Court for the Southern District of Texas and filed a
motion for summary judgment on all of Hernandez’s claims, which
the district judge granted.1 Hernandez appealed.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo, applying the same standards as the district court. See
United States v. Johnson, 160 F.3d 1061, 1063 (5th Cir. 1998).
After consulting applicable law in order to ascertain the
material factual issues, we consider the evidence bearing on
those issues, viewing the facts and the inferences to be drawn
therefrom in the light most favorable to the non-movant. See Doe
v. Dallas Indep. Sch. Dist., 153 F.3d 211, 214-15 (5th Cir.
1998). Summary judgment is properly granted if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c).
1
The district court did not explicitly address Hernandez’s
Title VII claim in its Memorandum Opinion and Order, noting only
that “Hernandez filed this lawsuit alleging that the refusal to
place him back in the light duty work program violated the ADA
and Texas Commission on Human Rights Act (“TCHRA”) and that
Aldine I.S.D. intentionally inflicted emotional distress upon
him.” As noted below, however, Hernandez’s appeal appears to
concern only his ADA claim.
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III. DISCUSSION
On appeal, Hernandez argues that the district court erred in
determining that he was not a “qualified individual with a
disability” entitled to protection under the ADA because he
failed to propose a reasonable accommodation that would allow him
to perform the essential functions of his job.2 The ADA provides
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 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). The term “discriminate”
includes “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified
individual with a disability . . . unless such covered entity can
demonstrate that the accommodation would impose an undue hardship
on the operation of the business of such covered entity.” Id.
§ 12112(b)(5)(A). A “disability” includes “a physical or mental
2
As we noted above, Hernandez also asserted claims for
disability discrimination under the Texas Commission on Human
Rights Act and Title VII of the Civil Rights Act of 1964 and for
intentional infliction of emotional distress under Texas common
law. His briefs on appeal, however, address only his ADA claim.
We therefore consider all other claims waived. See Cavallini v.
State Farm Mut. Auto Ins. Co., 44 F.3d 256, 260 n.9 (5th Cir
1995); see also FED. R. APP. P. 28(a)(6)(“The argument must
contain the contentions of the appellant on the issues presented,
and the reasons therefor, with citations to the authorities,
statutes, and parts of the record relied on.”); Gann v. Fruehauf
Corp., 52 F.3d 1320, 1328 (5th Cir. 1995) (holding that appellant
waived claims on appeal by failing to advance arguments in
support of them in the body of his brief).
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impairment that substantially limits one or more of the major
life activities of such individual.” 42 U.S.C. § 12102(2). A
“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.” Id. at § 12111(8).
Because Hernandez concedes that his back injury prevents him from
doing the “regular work,” including lifting objects weighing up
to 150 pounds, of a District custodian, he is a “qualified
individual with a disability” under the ADA only if he can
perform the essential functions of that position
“with . . . reasonable accommodation.”
Although the parties disputed below whether Hernandez was
disabled within the meaning of the ADA, the only controversy on
appeal is whether the district court properly granted summary
judgment on the basis of its conclusions (1) that Hernandez’s
proposed accommodation was permanent reassignment to light duty
and (2) that such an accommodation was unreasonable as a matter
of law. We address these issues in turn.
Our review of the record convinces us that there is no
genuine issue of material fact as to whether Hernandez asked to
be permanently reassigned to light duty. Although there is no
testimony about the exact wording of Hernandez’s request, he
stated at his deposition that he considered his condition
permanent and that he wanted to perform only light duty work.
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For example, the following colloquy took place between Hernandez
and the District’s counsel:
Q. [by counsel] Okay. All right. We’ll talk about the
accident in a--is this a permanent or temporary condition?
A. Permanent.
Q. And how do you know that it’s permanent?
A. Because they have operated twice on me--surgery. They
have pulled out two disks. They have made transplantation
of those disks. They took from my right side to make up
those disks.
Q. Has a doctor ever told you that this is a permanent
condition?
A. Yes, ma’am.
Because of this permanent injury, Hernandez explained, he needed
to be accommodated by being assigned to light duty:
Q. Okay. The place where you work, the hours that you
work, everything could change trying to accommodate you with
light duty?
A. Yes, ma’am.
. . .
Q. [by counsel] So you are saying that you always were
ready to work when they wanted you to work?
A. Exactly. But the light duty--but not the way I used to
work from ’84 until ’92. I used to work almost 365 days of
a year and I didn’t have any physical problem. But now that
I need it because I’m suffering my pains in my back--of my
back--as I repeat now to you, madam, I don’t want to be paid
for not doing anything. I want to do something. I want to
work, but light duty work.
The record thus shows that Hernandez asked for light duty as an
accommodation for a disability he knew to be permanent. There is
no evidence that he indicated in any way that he was requesting
only temporary assignment to light duty. We conclude that there
is no genuine issue of fact as to whether Hernandez was
requesting a permanent light duty assignment.
We next turn to the question of whether Hernandez met his
burden of proving that his proposed accommodation was reasonable.
See Riel v. Electronic Data Sys. Corp., 99 F.3d 678, 683 (5th
6
Cir. 1996).3 In general, a reasonable accommodation is “a method
of accommodation that is reasonable in the run of cases,” id.
(quoting Barth v. Gelb, 2 F.3d 1180, 1187 (D.C. Cir. 1993)), and
while it may include job restructuring, see 42 U.S.C. § 12111(9),
the ADA does not require an employer to eliminate or transfer any
of the essential functions of a position, see Barber v. Nabors
Drilling U.S.A., Inc., 130 F.3d 702, 709 (5th Cir. 1997). Nor
does the ADA require an employer to create a new job as an
accommodation. See Still v. Freeport-McMoran, Inc., 120 F.3d 50,
53 (5th Cir. 1997). An employer “is not required to create light
duty jobs to accommodate disabled employees. The law does not
require affirmative action in favor of individuals with
disabilities. It merely prohibits employment discrimination
3
Hernandez complains that the district court improperly
“placed the burden of establishing [] undue hardship upon []
Hernandez.” We disagree. The district court concluded that
Hernandez failed to propose a reasonable accommodation, not that
the reasonable accommodation he suggested would impose an undue
hardship upon the District. The plaintiff, in this case
Hernandez, bears the burden of proving that his proposed
accommodation is reasonable. See Riel, 99 F.3d at 683.
Reasonable accommodation and undue hardship are analytically
distinct; as Riel pointed out, a reasonable accommodation is “a
method of accommodation that is reasonable in the run of cases,
whereas the undue hardship inquiry focuses on the hardships
imposed by the plaintiff’s preferred accommodation in the context
of the particular [employer’s] operations.” Id. (quoting Barth,
2 F.3d at 1187); see Johnson v. Gambrinus Co./Spoetzl Brewery,
116 F.3d 1052, 1058-59 (5th Cir. 1997) (“The court concluded that
this evidence focused upon the plaintiff’s specific circumstances
and thus could not be used to rebut the plaintiff’s showing of an
accommodation reasonable in the run of cases, but instead was
relevant only to meeting the employer’s burden of showing undue
hardship.”) (discussing Riel, 99 F.3d at 683-84). As we explain
below, the accommodation Hernandez proposed amounted to creating
a new position for him. Such a method of accommodation is not
reasonable “in the run of cases.” Riel, 99 F.3d at 683.
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against qualified individuals with disabilities, no more and no
less.” Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1094 (5th
Cir. 1996) (citation and footnote omitted).
The undisputed evidence in the record shows that the
District had only temporary light duty positions. Emitte Roque,
the District’s Director of Buildings and Properties, stated
explicitly in his affidavit that “Aldine has no permanent light
duty positions.” Hernandez admitted in his deposition that no
one had ever informed him that permanent light duty positions
were available and that he knew of no one, other than perhaps
“teachers that are in wheelchairs,” who held permanent light duty
positions. Therefore, placing Hernandez in a permanent light
duty position would amount to creating a new light duty job as an
accommodation. Under the principles we explained above, such an
accommodation is not reasonable, and Hernandez therefore cannot
demonstrate that he is a qualified individual with a disability.
His ADA claim fails.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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