IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31378
MARY KAY DUPRE,
Plaintiff-Appellant,
versus
CHARTER BEHAVIORAL HEALTH
SYSTEMS OF LAFAYETTE INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
February 16, 2001
Before GOODWIN1, GARWOOD and JONES, Circuit Judges.
GARWOOD, Circuit Judge:
Plaintiff-appellant Mary Kay Dupre (Dupre) appeals the
district court’s grant of summary judgment as a matter of law in
favor of her former employer, defendant-appellee Charter Behavioral
Health Systems of Lafayette (Charter). We affirm.
Facts and Proceedings Below
Dupre was employed by Charter in the newly-created position of
“Mobile Assessment Coordinator” (MAC) from July 1, 1997 until July
1
Circuit Judge of the Ninth Circuit, sitting by designation.
18, 1997. The essential functions of the MAC position included
working eight hours a day, five days a week, as well as being on
call twenty-four hours a day (which was alternated between Dupre
and Jennifer Nichols, another employee). The MAC position was
designed to respond to requests from outside medical providers for
psychological assessments of their patients and to provide
referrals for psychological hospitalization. Dupre has training in
both business and psychotherapy–she has a masters degree in
psychology and has completed some course work towards an MBA
degree.
Dupre was late on two of the thirteen working days she was
employed, absent on two days, and left work early on two days.
Dupre suffered from a back condition known as “degenerative disc
disease and degenerative facet joint disease.” Dupre’s condition
required her to leave work early on July 1, 1997 for a follow-up
medical visit in connection with a surgery she underwent on June
23, 1997. In addition, Dupre missed work on July 9 and July 17,
1997, in order to have follow-up surgical procedures performed on
her back. Dupre obtained prior authorization from her supervisors
at Charter for both absences. Dupre was also late to work twice.
On one occasion, she phoned her supervisor in the morning and
informed him she would be late due to pre-operative lab work that
needed to be completed. On the other occasion Dupre had no
explanation for her absence other than she had “messed up” her
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schedule. Finally, Dupre’s immediate supervisor witnessed Dupre
experiencing discomfort with her back on one occasion and permitted
her to leave work early.
Dupre asked for, and received, permission to use a “certain
chair that was more comfortable” and better for her back condition.
However, when Dupre requested a special nurse’s uniform with an
elastic waistband that she claimed would not impinge on a device
implanted in her back, Charter refused to grant her permission.
Even without this special uniform, Dupre stated under oath in sworn
documents filed with the EEOC that: “I was capable of performing
the essential functions of my job without a reasonable
accommodation. Therefore, I never requested a reasonable
accommodation.”
On July 18, 1997, Charter terminated Dupre’s employment.
According to Dupre’s deposition, she was called into a meeting with
Cheryl Dronet, Charter’s Human Resources Manager, and her immediate
supervisor, Jamie Molbert. During the meeting, Dronet informed
Dupre that she was not meeting the requirements of the new job and
would be let go. Dupre alleges that after she asked Dronet for
further explanation, Dronet stated that Charter was aware that “a
while back, [she] couldn’t sit at work,” and informed her that this
could render her unable to perform her job effectively at times,
such as when she would be required to sit a long time at the
hospital. When Dupre asked “so this has to do with my back,
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because I took off some days for my back ...?” Molbert replied to
the effect that Dupre neglected to inform Charter of her back
injury at the time she was hired.
Charter denied that it discharged Dupre because of disability,
stating that its decision was based on her excessive absenteeism,
which made her unqualified for a job in which she would have to be
on twenty-four hour call, work nights and weekends, and be
available for days at a time at a moment’s notice. According to
Charter, “excessive absenteeism made her an undependable employee.”
On January 20, 1998, Dupre filed a Charge of Discrimination
with the EEOC alleging that she was the victim of disability
discrimination. On June 17, 1998, the EEOC notified Dupre of its
finding that she had been terminated for a legitimate non-
discriminatory business reason, and informed her that a Dismissal
and Notice of Right to Sue would be issued. Dupre then sued Charter
in the district court below, claiming that Charter terminated her
employment because of a disability in violation of, inter alia, the
Americans with Disabilities Act, 41 U.S.C. § 12112, et seq. (ADA).
In a memorandum opinion the district court indicated its
intention to grant summary judgment for Charter based on our
decision in Taylor v. Principal Financial Group, 93 F.3d 144 (5th
Cir. 1996). According to the district court, Dupre failed to
either request a reasonable accommodation for her alleged
disability or produce summary judgment evidence that would allow a
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reasonable trier of fact to find that Charter knew of any
limitations arising from her alleged disability. The district
court held that because Charter was not made aware of any specific
job limitations, under the Taylor framework its ADA obligations to
provide reasonable accommodation were never triggered. See Taylor,
93 F.3d at 164.
Since the applicability of Taylor had not been addressed by
either party, the district court gave Dupre an opportunity to brief
the court on why Taylor was not controlling. The parties filed
supplemental briefs, but the district court thereafter finalized
its original decision and entered an order granting Charter’s
Motion for Summary Judgment. Judgment was accordingly entered for
Charter. Dupre now appeals.
Discussion
We review de novo the grant of a motion for summary judgment,
applying the same standard as the district court is required to.
McDaniel v. Anheuser-Busch, Inc., 987 F.2d 298, 301 (5th Cir. 1993).
Summary judgment is appropriate when the record demonstrates “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). In summary judgment proceedings, the record is
considered in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587-88 (1986). As to issues on which the non-movant would bear the
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burden of proof at trial, summary judgment is appropriate unless
the record contains evidence sufficient to sustain a finding in
favor of the non-movant. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994).
The ADA prohibits discrimination in employment against
qualified persons with a disability.2 To establish a prima facie
discrimination claim under the ADA, Dupre must show that she was
disabled, was qualified for the job, and was the subject of an
adverse employment action because of her disability. Zenor v. El
Paso Healthcare System, Ltd., 176 F.3d 847, 851 (5th Cir. 1999).
See also Burch v. Coca-Cola Co., 119 F.3d 395, 320 (5th Cir. 1997).
Although the district court focused on whether Dupre had requested
a reasonable accommodation, the fundamental issue in this case,
which was raised by Charter below, is whether Dupre was disabled so
as to come within the protection of the ADA. “Disability” as used
in the ADA means: “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of
such individual; (B) a record of such an impairment; or (C) being
regarded as having such an impairment.” 42 U.S.C. § 12102(2). We
will consider each variation of the statutory definition in turn.
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).
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Substantially Limiting Impairment
“[C]onsideration of [a claim under] subsection A of the
definition [of disability] proceeds in three steps.” Bragdon v.
Abbott, 118 S.Ct. 2196, 2202 (1998). The plaintiff must (1) have
a mental or physical impairment that (2) substantially limits (3)
a major life activity. Id. Dupre argues that she was
substantially limited in three major life activities: standing,
sitting, and working. For purposes of this appeal, Charter
concedes that sitting and standing are major life activities.3 The
parties also do not dispute that Dupre’s back condition constitutes
an impairment within the meaning of the ADA. However, not all
impairments are serious enough to be considered disabilities under
the statute. To be considered a “disability,” an impairment must
substantially limit a major life activity. Dutcher v. Ingalls
Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995).
The ADA does not define either “substantially limits” or
“major life activity,” but the EEOC has promulgated regulations
3
Under the relevant EEOC regulations, “[m]ajor life activities
means functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(i). This list is not meant to be
exclusive, and the Appendix to § 1630 suggests that other major
life activities could include lifting, sitting, or standing. See
29 C.F.R. § 1630, Appendix to Part 1630–Interpretive Guide on Title
I of the Americans with Disabilities Act, § 1630.2(1). For
purposes of this opinion we assume without deciding that sitting
and standing are both major life activities.
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under the ADA that define those terms.4 Whether an impairment is
substantially limiting depends on “(1) the nature and severity of
the impairment, (2) its duration or expected duration, and (3) its
permanent or expected permanent or long-term impact.” Id. (citing
29 C.F.R. § 1630, App., § 1630.2(j)). Dupre claims that the
limitation on her ability to sit and stand for long periods of time
constitutes a substantial limitation of a major life activity.
According to Dupre, her limitations in sitting require her to get
up every hour and walk around, and her limitations in standing
require that for every hour that she stands, she must walk or sit
for a while.
In Colwell v. Suffolk County Police Dep’t, 158 F.3d 635, 644
(2nd Cir. 1998), the Second Circuit considered whether police
officers who had difficulty standing and sitting were substantially
limited in a major life activity. The officers complained that
they had difficulty standing for “any period of time,” could not
sit for prolonged periods, and had to move around after sitting for
too long. Id. The court held that none of these impairments were
sufficiently substantial, “particularly when evaluated in light of
... ‘the nature and severity of the impairment’ as compared with
the average person’s ability....” Id. (quoting 29 C.F.R. §
1630.2(j)(2)).
4
But see Sutton v. United Airlines, Inc., 119 S.Ct. 2139, 2145
(1999).
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In the case before us, Dupre’s ability to sit or stand in one
place for up to one hour at a time before having to walk around
makes clear that the “condition, manner, or duration” under which
she was able to sit or stand was not significantly restricted as
compared with the average person. 29 C.F.R. § 1630.2(j)(1). See
also Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 186 (3rd Cir.
1999) (upholding summary judgment against an employee who required
hourly breaks while sitting or walking because the employee’s
ability to stand and walk was not significantly less than that of
an average person). Dupre was therefore not substantially limited
in the major life activities of standing and sitting.
Dupre also claims that she was disabled because she was
substantially limited in the major life activity of working. In
order to prove that she was so limited, Dupre is required to
demonstrate that her back injury precluded her from a class of jobs
or a broad range of jobs. See Sutton v. United Air Lines, Inc.,
527 U.S. 471, 491 (1999); Pryor v. Trane, 138 F.3d 1024, 1027 (5th
Cir. 1998). “‘The inability to perform a single, particular job
does not constitute a substantial limitation in the major life
activity of working.’” Pryor, 138 F.3d at 1027 (quoting 29 C.F.R.
§ 1630.3(j)(3)(I)). “If jobs utilizing an individual’s skills (but
perhaps not his or her unique talents) are available, one is not
precluded from a substantial class of jobs. Similarly, if a host
of different types of jobs are available, one is not precluded from
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a broad range of jobs.” Sutton, 119 S.Ct. at 2151.
Dupre argues that her impairment disqualifies her from all
manual labor, and that therefore she was precluded from a broad
range of jobs. However, Dupre has presented no evidence that she
would be disqualified from all jobs requiring manual labor.
Although Dupre testified she was unable to perform any manual
labor, citing digging holes or repairing railroad track as
examples, she also stated in her answer that she was capable of
bending at the knees, walking a half mile, lifting up to thirty
pounds, and driving a car for an hour. Dupre was also able to sit
and stand for up to an hour at a time.
From these facts, it appears that Dupre was only precluded
from jobs involving very strenuous physical activity (like laying
track), prolonged standing or sitting, heavy lifting, or prolonged
walking. There exist, however, many jobs involving only light
labor that Dupre seemed perfectly capable of performing. In Zenor
v. El Paso Healthcare Systems, Ltd., 176 F.3d 847 (5th Cir. 1999),
we found that a former pharmacist was not regarded as substantially
limited in working since there was no evidence that he was unable
to perform “any number of clerical, service-related,
administrative” jobs within the hospital where he formerly worked.
Id. at 861. An inability to engage in the kind of intense physical
exertion required of some jobs hardly disqualifies Dupre from all
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jobs involving manual labor.5 Moreover, the fact that Dupre
obtained a job as a Social Services Director at a nursing home
after her discharge suggests both that she “retain[ed] the ability
to compete successfully with similarly skilled individuals” and
that she was not therefore restricted from performing a broad range
or class of jobs. Hamilton v. Southwestern Bell Telephone Co., 136
F.3d 1047, 1051 (5th Cir. 1998). In light of the evidence Dupre
presented, no reasonable juror could have concluded that she was
substantially limited in the major life activity of working.
Accordingly, Dupre is not disabled within the meaning of 42 U.S.C.
§ 12102(2)(A).
Record of Disability
Dupre also claims that she has a record of a disability that
Charter was aware of when she was fired. See 42 U.S.C. §
12102(2)(B). Dupre points to the “Employee Health Screening Form”
she filled out for Charter as well as any information relating to
Dupre’s alleged disability that became known to Charter during its
various interactions with Dupre. The screening form indicated that
5
Even if her claim regarding an inability to perform manual
labor were true, Dupre would not necessarily be excluded from a
substantial class of jobs. Dupre’s complaint states specifically
that “[n]o manual labor...was required for the position” of Mobile
Assessment Coordinator at Charter. Dupre’s alleged inability to
perform manual labor would not bear on the “number and types of
jobs utilizing similar training, knowledge, skills, or abilities
... from which the individual is also disqualified because of the
impairment.” 29 C.F.R. § 1630.2(j)(3)(B). See also Sutton, 119
S.Ct. at 2151.
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Dupre had back pain, that she was under the care of a physician for
this pain, and that she had undergone surgery related to her back
problem.
This evidence is insufficient to constitute a record of
impairment under the ADA. The EEOC regulations provide: “Has a
record of such impairment means has a history of, or has been
misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.” 29 C.F.R.
§ 1630.2(k). Therefore, not only must Dupre demonstrate that she
has a record of an injury or impairment, but the evidence must show
that her impairment limited a major life activity. See Sherrod v.
American Airlines, 132 F.3d 1112, 1120-21 (5th Cir. 1998); Burch v.
Coca-Cola Co., 119 F.3d 305, 321 (5th Cir. 1997).
The screening form made only vague mention of the existence
and treatment of Dupre’s back problem and did not indicate whether
or how this problem substantially limited any major life activity.
In Sherrod, we ruled that a record of prior back surgery and
disability leave, without more, was not a record of an impairment
that substantially limits a major life activity. Sherrod, 132 F.3d
at 1120-21. Dupre did not have a record of a disability within the
meaning of 42 U.S.C. § 12102(2)(B).
Regarded as Disabled
Finally, Dupre argues that the record established a genuine
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issue of fact as to whether Charter regarded her as disabled.6 “In
order to be ‘regarded as’ disabled a plaintiff must: ...have a
physical or mental impairment that does not substantially limit
major life activities, but be treated as such by an employer.”
McInnis v. Alamo Community College District, 207 F.3d 276, 281 (5th
Cir. 2000). See also 29 C.F.R. § 1630.2(1). Additionally, Dupre
must establish that the impairment, if it existed as perceived,
would be substantially limiting. McInnis, 207 F.3d at 281.
It is undisputed that Charter knew that Dupre had some kind of
back impairment. Dupre had filled out a screening form that
indicated she had a back injury, had undergone surgery, and was
currently taking medication for back pain. She requested a more
comfortable chair and a uniform that did not aggravate an implant
in her back. Dupre was also allowed to leave work early after her
supervisor observed her having difficulties sitting in her chair.
And, in her affidavit Dupre stated that when she was fired her
immediate supervisor and Charter’s Human Resources Manager referred
to her back problem as if it were a reason for her termination.7
6
Dupre does not specify in which major life activity Charter
allegedly regarded her as substantially limited.
7
Dupre’s deposition reads, in relevant part:
Q. Tell me about the discussion you were having
during this discharge meeting regarding your back
problems.
A. It was short and brief.
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Dupre argues that the record would allow a jury to find that
Charter regarded her as having a substantially limiting impairment
of a major life activity. However, Dupre was not in fact
substantially limited in any major life activity and nothing in the
record indicates that Charter’s perception of Dupre’s condition was
in any way inaccurate. Even if we assume that Charter thought that
Dupre’s condition would cause her to be absent, there is no
evidence that Charter thought that Dupre was unable to perform
other jobs. The statements Dupre claims were made at her
termination do indicate that Charter doubted that Dupre was capable
of performing the required duties of the MAC position with the
requisite consistency. But, an employer does not necessarily
Q. OK. Well, tell me as much of it as you
remember.
A. I walked in and Jamie was sitting behind his
desk and Sheryl was sitting like to the left of
me. And I sat down like in this chair and Sheryl
starts off, she says, we’re going to have to let
you go because it looks like–she didn’t say it
looked like. She says. you’re not meeting the
requirements or the standards of the job. And I
said, what are you talking about? And she says–she
says, well, a while back you couldn’t sit at work,
because I had had a procedure. I had trouble.
She says, hypothetically, you know, one of the
things that might come up in your job is sitting
a long time at the hospital waiting. She said,
what would you do? I said, well, I’d stand. So I
said, this has to do with my back, because I took
off some days for my back which you all–which
Jamie, I pointed to Jamie, which you approved?
And he says, you didn’t tell us about your–I don’t
know whether he said back or that at the time you
were hired. That was it....
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regard an employee as having a substantially limiting impairment
simply because it believes the employee is incapable of performing
a particular job. Deas v. River West, L.P., 152 F.3d 471, 480 (5th
Cir. 1998). Nothing in the record, including Dupre’s account of
her firing, provides support for Dupre’s claim that Charter
perceived her as having more of an impairment than she actually
had. Dupre has presented no evidence that Charter regarded her as
substantially limited in any major life activity. The record is
insufficient to support a finding that Charter regarded Dupre as
disabled within the meaning 42 U.S.C. § 12102(2)(C).
Conclusion
We may affirm a grant of summary judgment if there is any
adequate basis in the record to do so on a ground properly raised
below, regardless of the correctness of the trial court’s ruling.
Rodrigue v. Western and Southern Life Ins. Co., 948 F.2d 969, 970
(5th Cir. 1991). Our holding that Dupre was not disabled is
determinative in this case, and we therefore need not address the
propriety of the district court’s application of Taylor v.
Principal Financial Group, 93 F.3d 144 (5th Cir. 1996), to the
present case. Since the record indicates that Dupre was not
disabled, she has no cause of action under the ADA, and summary
judgment for Charter was appropriate. Accordingly, the order of
the district court granting summary judgment is
AFFIRMED.
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