United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 31, 2004
Charles R. Fulbruge III
Clerk
04-40141
Summary Calendar
SHARON J. ZIMMER,
Plaintiff-Appellant,
VERSUS
SOUTHWESTERN BELL TELEPHONE COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
(4:01-CV-139)
Before DUHÉ, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:1
Plaintiff-Appellant Sharon Zimmer was employed as a directory
assistance operator with Defendant-Appellee Southwestern Bell
Telephone Company (SWBT) in McKinney, Texas. After an automobile
accident on February 1, 1996, Zimmer was on short-term disability
leave until September 1996.2 She then resumed her job without
incident until November 1997. On Thanksgiving Day she created an
office disturbance, causing customer service to be affected,
1
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this opinion should not be published and is not precedent except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.
2
R. 142-43.
according to SWBT’s investigation.3 She was given one-day Decision
Making Leave, with pay, to decide whether she wanted to keep her
job or not. On her leave day Zimmer visited her psychiatrist, and
the doctor put her on short-term disability leave because of
stress.4
While Zimmer was on leave, SWBT closed its McKinney facility
and offered her a position in downtown Dallas. Zimmer rejected
that offer. SWBT changed Zimmer’s status to retired and gave her
permanent pension disability and lifetime medical and dental
benefits.5 Zimmer sued SWBT for discrimination under the Americans
with Disabilities Act, and the district court denied her all relief
on a motion for summary judgment by SWBT. We affirm.
I.
A plaintiff makes a prima facie showing of ADA discrimination
by establishing that she 1) is disabled or is regarded as disabled;
2) is qualified for the job; 3) was subjected to an adverse
employment action on account of her disability; and 4) was replaced
by or treated less favorably than non-disabled employees.6
Granting summary judgment for SWBT, the district court found that
Zimmer failed to produce evidence that she is disabled or regarded
3
R. 184.
4
R. 159-60, 170-73, 213.
5
R. 145-148, 189, 191.
6
McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th
Cir. 2000).
2
as disabled, that SWBT took adverse employment action against her
because of her disability, and that the SWBT treated her less
favorably than other non-disabled employees similarly situated.
A plaintiff’s failure to establish a genuine issue of
material fact on any of the essential elements of her claim
entitles defendant to summary judgment.7 We affirm on the basis
that Plaintiff has failed to establish that she was replaced by or
treated less favorably than non-disabled employees.
With the closure of the McKinney facility, Plaintiff was not
replaced at all. Nor has she shown that SWBT treated her less
favorably than other non-disabled employees similarly situated.
Upon closure of the McKinney office, she was offered her same
position in the downtown Dallas office. Zimmer testified that her
doctors would not allow her to accept a position that would require
her to walk on curbs and face the stress of traffic.8
According to Zimmer, some other “surplussed” employees were
offered positions in Garland, Greenville, Plano, and Richardson.9
Zimmer offered no evidence, however, that others were offered jobs
at more than one facility. Nor did she produce evidence that she
requested a placement in one of the smaller cities. Her argument
that SWBT employees did not testify that they did not know she was
7
See Blanks v. Southwestern Bell Communs., Inc., 310 F.3d 398,
402 (5th Cir. 2002).
8
R. 218-19.
9
R. 218-20.
3
requesting assignment to a more convenient facility is beside the
point, because Zimmer herself bore the burden of proof on this
element.10
Even with all the evidence viewed in Zimmer’s favor, her ADA
claim fails because she has not shown that she was treated
differently from others similarly situated.11
While the district court presented a careful analysis of other
elements of Zimmer’s claim, if she failed to establish the
essential element that the SWBT treated her less favorably than
other non-disabled employees similarly situated, that element alone
is dispositive.12
10
See McInnis, 207 F.3d at 279 (plaintiff must first make prima
facie showing to establish each element); see also Burch v. City of
Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999) (“[W]e will not
attribute extra-sensory perception to the [employer]: the record
does not offer a single example of [plaintiff’s] asking the
[employer] to transfer him . . . .”).
11
See Nacogdoches, 174 F.3d at 621 n.11 (“Had [plaintiff] shown
that the [employer] treated him differently from others similarly
situated by not reassigning him under identical conditions, his
position on appeal would have been much stronger. . . . Construing
the facts in the light most favorable to [plaintiff] does not
require us to credit otherwise unsupported assertions.”); see also
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)
(“What [plaintiff] failed to show, however, was that any such
alleged failings [in the employer not matching displaced employees
to openings, lining up interviews, etc.] were the result of
discrimination based on his disability. There was no proof that
the [employer] treated him worse than it treated any other
displaced employee,”) cert. denied, 516 U.S. 1172, 116 S.Ct. 1263,
134 L.Ed.2d 211 (1996).
12
Herrera v. Millsap, 862 F.2d 1157, 1159 -1160 (5th Cir.
1989)(“[A] complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other
facts immaterial.”).
4
II.
The remaining two assignments of error are the court’s
exclusion of Zimmer’s evidence and argument that she is
substantially limited in the major life activity of learning, and
the court’s disallowance of an amendment to the complaint to assert
a learning disability. These two errors could affect only the
court’s determination that Zimmer is not disabled. Our decision
does not turn on the disability element of Zimmer’s claim. With or
without the amendment or the evidence, Zimmer failed to establish
a genuine issue of material fact on an essential element of her
claim as discussed in Part I. SWBT is entitled to judgment as a
matter of law under Rule 56(c).
The judgment of the district court is
AFFIRMED.
5