UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-10337
(Summary Calendar)
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ROBERT VAN WINKLE,
Plaintiff-Appellant,
versus
WHITE SWAN, INC.,
Defendant-Appellee.
Appeal from the United States District Court
For the Northern District of Texas
(3:94-CV-2498-T)
October 23, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Plaintiff Robert Winkle appeals the district court’s grant of
summary judgment in his claim against Defendant White Swan, Inc.
under the Americans with Disabilities Act (“ADA”). We affirm.
I
Robert Winkle seriously injured his back while working as a
*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
truck driver for White Swan. After back surgery, Winkle returned
to work and injured his back again. White Swan intermittently
employed Winkle throughout the late 1980s and early 1990s, a period
characterized by Winkle’s long disability leave, collection of
worker’s compensation benefits, litigation, and repeated episodes
of short employment followed by long, back-related injury leave.
Winkle returned to work for White Swan after the two parties
settled a retaliatory discharge suit. Under the terms of the
settlement, the company paid Winkle a sum for compensation and
agreed to reinstate him to his former job as a driver, provided
that he receive a full medical release to return to work. On
Winkle’s first day back on the job, he reinjured his back.
Thereafter, his doctor restricted him to work that did not include
climbing, using stairs or ramps, or lifting more than twenty
pounds. As its truck driving jobs required drivers to lift more
than twenty pounds, White Swan prohibited Winkle from bidding on
trucking jobs and later fired him.
Winkle filed this action, alleging that his firing constituted
actionable discrimination under the ADA. The district court
dismissed the case on summary judgment, holding that Winkle had not
shown that he was able to perform the essential tasks of his job,
either with or without accommodation. Winkle filed a timely notice
of appeal.
II
Appellate review of a grant of summary judgment employs the
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same standard of review used by the trial court. Rizzo v.
Children’s World Learning Ctrs., Inc., 84 F.3d 758, 761 (5th Cir.
1996). Summary judgment is appropriate when “there is no genuine
issue as to any material fact and . . . the moving party is
entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c).
A dispute as to material fact is “genuine” if the evidence is such
that a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510 (1986). Therefore, we will affirm a grant of
summary judgment against any party who fails to establish an
essential element of that party’s case, and on which that party
will bear the burden of proof at trial. Celotex v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986).
When ruling on summary judgment motions, we credit the
evidence of the nonmovant and draw all justifiable inferences in
his favor. Anderson, 477 U.S. at 255. However, the nonmoving
party may not show a genuine issue for trial by mere “metaphysical
doubt as to the material facts, by conclusory allegations, by
unsubstantiated assertions, or by only a scintilla of evidence.”
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
III
Where an employer concedes that he made an employment decision
based on an employee’s disability, an employee must make three
showings for a successful ADA claim: (1) that the employee is a
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disabled person within the meaning of the ADA; (2) that he is
qualified to perform the essential functions of his job, either
with or without reasonable accommodation; and (3) that the employer
discriminated against him because of his disability. Rizzo, 84
F.3d at 763. Winkle conceded that he was unable to perform the
essential functions of the truck driver’s job without
accommodation, and the district court granted summary judgment
because he presented insufficient evidence to show that he could
perform the job with reasonable accommodation by White Swan.
White Swan produced evidence that the essential functions of
a backhaul driver required the driver to lift, carry, and load
cases weighing 23.5 pounds. Winkle does not dispute that his
doctor restricted him from such work, but instead contends that (1)
he could perform other jobs, such as a forklift driver, spotter, or
full load driver on a route that would not require lifting; and (2)
White Swan could accommodate him by employing a helper to ride in
the truck with him to do any necessary lifting.
As to his first contention, Winkle states that there were
other jobs available at White Swan that he could have performed;
however, he failed to show that such jobs were available, the
essential functions of those jobs, or that he could perform them.
As the district court pointed out, such conclusions are
insufficient where the plaintiff “offered nothing beyond his own
subjective opinion that he could perform the other jobs.” Order at
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6 (quoting White v. New York Int’l Corp., 45 F.3d 357, 362 & n.9
(10th Cir. 1995)). The ADA does not require White Swan to displace
another worker to place Winkle in a job, Milton v. Scriverner,
Inc., 53 F.3d 1118, 1124-25 (10th Cir. 1995), nor to create a new
job especially for him. Kiess v. D&H Dist. Co., No. 93-6398, 1996
WL 384634 at *3 (D. Md. Jan. 5, 1995). Here Winkle has failed to
produce more than conclusory allegations and assertions regarding
his qualifications for and the availability of other jobs.
Winkle separately contends that White Swan failed to
accommodate him by providing a helper to ride routes and perform
lifting tasks. Winkle stated that he had once seen another driver
with such a helper. The district court held that this evidence was
insufficient to withstand summary judgment because Winkle failed to
show that the helper was an accommodation for the other driver and
because Winkle did not produce such evidence as the nature or
duration of the helper’s assignment. The court also held that such
an accommodation “seems unreasonable.”
We need not reach the reasonability of such an accommodation,
because White Swan has no obligation to create new positions at the
company to accommodate an injured worker. Kiess, 1996 WL 384634 at
*3. Furthermore, Winkle failed to introduce enough evidence to
show that the worker he saw was hired as an accommodation in the
first place. This bare allegation without evidentiary support is
insufficient to withstand summary judgment.
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We hold that the district court did not err when it granted
White Swan’s motion for summary judgment. Accordingly, we AFFIRM.
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