Rodriguez v. Conagra Grocery Products Co.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 14, 2005

Charles R. Fulbruge III
No. 04-11473 Clerk

RUDY RODRIGUEZ,

Plaintiff-Appellant,

versus

CONAGRA GROCERY PRODUCTS COMPANY,

Defendant-Appellee.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
--------------------

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Plaintiff-Appellant Rudy Rodriguez (“Rodriguez”) brought this

diversity action against Defendant-Appellee ConAgra Grocery

Products Co. (“ConAgra”) under the Texas Commission on Human Rights

Act (“TCHRA”) alleging disability discrimination on the basis of

his diabetes. The district court denied Rodriguez’s motion for

partial summary judgment and granted ConAgra’s. We reverse, grant

partial summary judgment to Rodriguez, and remand to the district

court for further proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS

Plaintiff-Appellant Rudy Rodriguez was diagnosed with Type II

diabetes in 1997. The general term “diabetes” encompasses a

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category of diseases, all of which are characterized by

hypoglycemia —— heightened blood sugar levels —— resulting from the

difficulty of the body to eliminate sugar (glucose) from the blood

stream. A healthy body produces insulin at adequate levels and

uses that insulin to move sugar from the blood stream to within the

body’s cells where the sugar is used for sustenance. A Type II

diabetic like Rodriguez typically has both a reduced ability to

produce insulin and a reduced ability to use the insulin that his

body does produce. As a result, sugar builds up in the blood

stream, leading to hypoglycemia, the most significant danger Type

II diabetics face. Hypoglycemia develops gradually, though, and is

capable of detection by monitoring blood sugar levels.

Defendant-Appellee ConAgra Grocery Products Company

(“ConAgra”) owns a plant in Fort Worth, Texas, at which it produces

Ranch Style Beans. In January 2002, a temporary staffing agency

placed Rodriguez at this plant where, until March of that year, he

performed heavy manual labor, including unloading delivery trucks

and lifting heavy sacks of beans.

Based on the quality of Rodriguez’s work, a supervisor

recommended to the plant’s Human Resources Manager, Elza Zamora,

that ConAgra offer Rodriguez a permanent position. In late

February 2002, ConAgra offered Rodriguez a job as a “Production

Utility” employee in the plant’s production area. The offer was

contingent on Rodriguez’s passing a background check, a drug

screen, and a physical exam.

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 The following month, with offer in hand, Rodriguez visited

Occupational Health Solutions (“OHS”), a private clinic with which

ConAgra had a standing contractual arrangement to perform all of

its preemployment physical exams. For ConAgra, OHS performs only

those specific tests and procedures that ConAgra pre-approves. At

the time of Rodriguez’s preemployment exam, the standard exam

package did not include a blood test to measure the job applicant’s

blood sugar level.

OHS’s Dr. Jerry Morris performed Rodriguez’s physical exam.

Pursuant to the OHS-ConAgra contract, Dr. Morris was to assess

Rodriguez’s medical qualification for the Production Utility

position at ConAgra. Significantly, however, ConAgra had never

provided Dr. Morris with any data or restrictions applicable to the

position, and Dr. Morris admitted that when he examined Rodriguez

he knew nothing of Rodriguez’s job offer or the qualifications

necessary for the Production Utility position.

Dr. Morris performed a urinalysis on Rodriguez, which showed

an elevated concentration of glucose in his urine. Based on

nothing more than Rodriguez’s concentrated level of glucose and the

fact that Rodriguez could not remember the name of his treating

physician or the name of the medication he was taking to control

his diabetes, Dr. Morris concluded that Rodriguez’s diabetes was

“uncontrolled.” On the medical form that Dr. Morris submitted to

ConAgra, he wrote that Rodriguez was “[n]ot medically qualified”

for the position at the plant because of “uncontrolled diabetes.”

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Dr. Morris also told Rodriguez that he did not believe Rodriguez

was controlling his diabetes.

Rodriguez immediately disputed Dr. Morris’s assessment,

informing him that Rodriguez “had [had] a complete physical not

even two months ago and [his] physical was all right and [he] was

taking pills for [his diabetes] and everything and [he] never had

no trouble.” Indeed, Rodriguez’s oral medical history and physical

exam confirmed that he suffered no physical or mental problems

attributable to his diabetes. And, Dr. Morris testified that he

observed no ill-effects attributable to Rodriguez’s diabetes.

Following the exam, Rodriguez took his completed medical form

to Zamora. She thereupon informed Rodriguez that he would not be

hired because (1) he had failed the physical exam, and (2) Dr.

Morris did not recommend him for employment.

Four days after ConAgra withdrew the job offer, Rodriguez

filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”) and the Texas Commission on Human

Rights (“TCHR”). After both organizations failed to find a

violation of Rodriguez’s rights, the TCHR issued him a right-to-sue

letter. That was in June of 2002; two months later, Rodriguez sued

ConAgra in Texas state court, alleging that ConAgra violated the

TCHRA1 when it refused to hire him because of what it perceived to

be uncontrolled diabetes. ConAgra removed the case to federal

1
TEX. LAB. CODE § 21.051.

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court on the basis of diversity jurisdiction,2 but the district

court remanded it in November of 2002, after concluding that the

diversity jurisdiction statute’s amount-in-controversy requirement

was not satisfied. Rodriguez filed an amended original petition in

state court, and ConAgra again removed the suit on diversity

grounds, after which the matter proceeded in federal court.

In October 2003, ConAgra filed a motion for summary judgment,

and Rodriguez filed for partial summary judgment. In granting

ConAgra’s motion and dismissing Rodriguez’s claims with prejudice,

the district court reasoned that “Rodriguez . . . failed to present

any evidence tending to demonstrate that his employment offer was

withdrawn because of the fact that he had diabetes.”3 “Rather, the

overwhelming undisputed evidence is that Zamora withdrew the job

offer because she believed that Rodriguez’s diabetes was

uncontrolled.”4 This, according to the district court, is “a

distinction with a difference”; “numerous courts have concluded,

albeit on differing grounds, that an employer’s adverse action in

response to a plaintiff’s failure to control an otherwise

controllable illness does not give rise to a disability

discrimination claim.”5 And, in the district court’s opinion,

2
28 U.S.C. § 1332.
3
Rodriguez v. Conagra Grocery Prods. Co., No. 4:03-CV-055-Y,
at 5-6 (N.D. Tex. filed Sept. 16, 2004).
4
Id. at 6 (emphasis in original).
5
Id.

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diabetes is a “generally controllable” illness.6 Therefore, ruled

the court, Rodriguez did not have a claim under the TCHRA.7

Rodriguez timely filed a notice of appeal.8

II. ANALYSIS

A. Standard of Review

We review both grants and denials of summary judgment motions

de novo.9 “[I]f the pleadings, depositions, answers to

interrogatories, and admissions on file, together with affidavits,

. . . 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,” then summary judgment in favor of that party is appropriate.10

Initially, it is the moving party’s burden to “show[ that] there is

no genuine issue of material fact”; if that burden is met, then the

nonmoving party must “produce evidence or designate specific facts

showing the existence of a genuine issue for trial.”11 In

conducting our analysis, we resolve any doubts and draw any

6
Id.
7
Id.
8
Rodriguez is supported in this case by several amici: the
EEOC; the American Association of Retired Persons; Advocacy, Inc.;
the American Diabetes Association; and the Coalition of Texans with
Disabilities.
9
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 507 (5th
Cir. 2003).
10
FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
11
Gowesky, 321 F.3d at 507 (internal quotation marks omitted).

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reasonable inferences raised by the evidence in favor of the

nonmoving party.12

B. The Texas Commission on Human Rights Act and the Americans
with Disabilities Act

The TCHRA, like the Americans with Disabilities Act (“ADA”),13

prohibits employment-based discrimination grounded in an

individual’s disability.14 Given the similarity between the ADA and

the TCHRA, Texas courts “look to analogous federal precedent for

guidance when interpreting the Texas Act.”15 As must federal

diversity courts when deciding an issue of state law, we will

follow the Texas courts’ lead. Our analysis today is thus focused

on those analogous federal precedents and their interpretation of

the federal act banning discrimination in employment on the basis

of disability: the ADA.

The ADA makes it unlawful for an employer to discriminate

against “a qualified individual with a disability because of the

disability of such individual in regard to job application

12
Id.
13
42 U.S.C. § 12101 et seq.
14
TEX. LAB. CODE § 21.051 (characterizing as “an unlawful
employment action” an adverse employment action taken by an
employer because of an individual’s “disability”).
15
NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.
1999); see also Herrera v. CTS Corp., 183 F. Supp. 2d 921, 925
(S.D. Tex. 2002) (“The [TCHRA] purports to correlate state law with
federal law in the area of discrimination in employment. Federal
law prohibiting disability discrimination by employers is found in
the . . . [ADA], and thus courts must look to this statute in
interpreting the TCHRA.”) (citations and quotations omitted).

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procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions,

and privileges of employment.”16 The ADA defines a “qualified

individual with a disability” as “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.”17 “The term ‘disability’ means, with respect to

an individual —— (A) a physical or mental impairment that

substantially limits one or more major life activities of such

individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment.”18 Finally, even if an

employer discriminates against a “qualified individual with a

disability,” that employer can avoid liability by asserting a

legitimate justification for its action, including that the

plaintiff, if hired, would “pose a direct threat to the health or

safety of other individuals in the workplace.”19

Taken together, these statutory and regulatory rules require

that a plaintiff situated like Mr. Rodriguez establish three

elements: (1) At the time he sought employment he had a

16
42 U.S.C. § 12112(a).
17
Id. § 12111(8).
18
Id. § 12102(2)(A)-(C) (emphasis added). The parties agree
that diabetes is a “physical . . . impairment” within the meaning
of the TCHRA/ADA.
19
Id. § 12113(b).

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“disability” within the meaning of the ADA; (2) he was qualified

for the position for which he sought employment; and (3) he was not

hired because of his disability.20 ConAgra has waived any argument

that Rodriguez was not qualified for the Production Utility

position,21 and it has expressly declined to employ the “direct

threat” defense to liability. Thus, the instant dispute turns

entirely on the first and third of the Gonzales prongs: At the time

that ConAgra withdrew its offer to employ Rodriguez, did he have a

“disability” within the meaning of the ADA; and, if so, did ConAgra

withdraw the job offer because of that disability.

We conclude that the district court erred when it held that

ConAgra did not withdraw Rodriguez’s job offer because of his

diabetes. Rodriguez has adduced sufficient evidence to establish

that: (1) He was “regarded as” substantially impaired in a major

life activity by ConAgra; and (2) ConAgra withdrew its offer to

employ him because of his perceived disability. As we explain more

fully below, ConAgra’s argument that Rodriguez’s “failure to

control” his diabetes obviates the protection of the ADA is a red

herring. This case is not about “failure to control”; rather, it

20
See Gonzales v. City of New Braunfels, Tex., 176 F.3d 834,
836 (5th Cir. 1999); Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047,
1050 (5th Cir. 1998).
21
ConAgra waived this argument by failing to brief it. See
Commc’n Workers of Am. v. Ector County Hosp. Dist., 392 F.3d 733,
748 (5th Cir. 2004); see also FED. R. APP. P. 28(a)(9)(A) (stating
that appellant’s brief must contain “appellant’s contentions and
the reasons for them, with citations to the authorities and parts
of the record on which the appellant relies”).

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is a garden variety “regarded as disabled” case. In such cases,

the question of control is never relevant: Any rule requiring that

a plaintiff exercise some level of control over his impairment ——

assuming arguendo that such a rule even exists —— is relevant and

applies only in an actual disability case. At its core, this case

is about the TCHRA/ADA’s emphasis on treating impaired job

applicants as individuals. ConAgra’s blanket policy of refusing to

hire what it characterizes as “uncontrolled” diabetics violates

this fundamental tenet of ADA law; it embraces what the ADA

detests: reliance on “stereotypes and generalizations”22 about an

illness when making employment decisions.

1. ConAgra Regarded Rodriguez as “Disabled” Within the
Meaning of the TCHRA/ADA

a. Background Law

This case falls squarely under the “regarded as” prong of the

ADA’s disjunctive definition of disability. Rodriguez’s theory of

recovery is that at the time ConAgra withdrew his job offer, it

regarded him as having a physical impairment that substantially

limited him in the major life activity of working, not that he in

fact had such an impairment.

Under the ADA, a plaintiff is “regarded as” disabled if he:

22
EEOC v. Prevo’s Family Mkt., Inc., 135 F.3d 1089, 1097 (6th
Cir. 1998).

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 (1) has an impairment which is not substantially limiting
but which the employer perceives as . . . substantially
limiting . . . ; (2) has an impairment which is
substantially limiting only because of the attitudes of
others towards such an impairment; or (3) has no
impairment at all but is regarded by the employer as
having a substantially limiting impairment.23

Rodriguez asserts that his case falls within the first of Bridges’s

three categories. Accordingly, Rodriguez had to show that at the

time ConAgra withdrew his job offer (1) his diabetes did not

actually substantially limit him in a major life activity, and (2)

ConAgra nonetheless perceived his diabetes to be substantially

limiting. As Rodriguez grounds his “regarded as” claim on the

major life activity of working,24 he had to demonstrate that ConAgra

believed that he was “unable to work in a broad class of jobs.”25

To that end, Rodriguez needed to prove that ConAgra perceived him

to be “precluded from more than one type of job, a specialized job,

23
Bridges v. City of Bossier, 92 F.3d 329, 332 (5th Cir.
1996).
24
In this circuit, “[t]he ability to engage in gainful
employment” qualifies as a major life activity. Gowesky, 321 F.3d
at 508; see also 29 C.F.R. § 1630.2(j)(3) (delineating the contours
of the major life activity of working).
25
Sutton v. United Air Lines, Inc., 527 U.S. 471, 491 (1999)
(emphasis added); see also 29 C.F.R. § 1630.2(j)(3)(i) (Defining
“substantially limit[ed] in the major life activity of working as
“significantly restricted in the ability to perform either a class
of jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills, and
abilities. The inability to perform a single, particular job does
not constitute a substantial limitation in the major life activity
of working.”).

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or a particular job of choice.”26 Rodriguez unmistakably carries

this burden.

b. Rodriguez’s Evidence

(i) Rodriguez Proved that His Diabetes Was Not
Substantially Limiting

Rodriguez adduced sufficient evidence to establish that his

diabetes did not substantially limit him in a major life activity.

For example, Rodriguez stated in his affidavit: “At no time in my

life have I experienced any physical or mental problem, other than

a temporary illness or injury, that has affected my ability to

work.” His personal physician, Ramon D. Garcia, averred that

“[f]or as long as I have been treating Rudy Rodriguez, dating back

to approximately 1999, he has not suffered any complications as a

result of his diabetes.” As ConAgra made no attempt to challenge

this evidence, we conclude that Rodriguez’s diabetes did not

substantially limit him in a major life activity.

The only evidence in the record that could be used to find

that Rodriguez’s diabetes was in fact substantially limiting is the

hyperbole of Dr. Morris that “outside of a padded room where he

could even then fall and break his neck from dizziness or

fainting,” there is no working environment in which Rodriguez would

26
Sutton, 527 U.S. at 492.

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be safe.27 But as we explain below,28 Dr. Morris did not base his

assessment on the individualized review of Rodriguez that the ADA

requires.29 An assessment not reached in an individualized manner

is not an assessment that we can credit, at least with regards to

whether Rodriguez is actually substantially limited by his

diabetes.30

(ii) Rodriguez Proved that ConAgra Regarded Him as
Precluded From a Wide Range of Jobs

To determine whether ConAgra regarded Rodriguez’s diabetes as

a substantially limiting impairment, we focus on the statements of

ConAgra itself, primarily those of its decisionmaker, Ms. Zamora,

and of Dr. Morris, on whom Zamora relied in making her decision.31

27
ConAgra, though, does not try to use Dr. Morris’s statement
in this fashion.
28
See infra Part II.B.3.b.
29
See, e.g., Sutton, 527 U.S. at 482-84.
30
It is, though, an assessment that we can credit with regards
to whether ConAgra regarded Rodriguez as substantially limited in
the major life activity of working. See infra note 31 and
accompanying text.
31
See Deas v. River West, L.P., 152 F.3d 471, 476 n.9 (5th
Cir. 1998) (citing Runnebaum v. NationsBank of Md., 123 F.3d 156,
172 (4th Cir. 1997)).
ConAgra argues that Rodriguez may not rely on the testimony of
Dr. Morris to establish that ConAgra regarded Rodriguez as
substantially limited in a major life activity. This argument is
meritless. “Employers do not escape their legal obligations under
the ADA by contracting out certain hiring and personnel functions
to third parties.” Holiday v. City of Chattanooga, 206 F.3d 637,
645 (6th Cir. 2000); see also id. (noting that the “ADA expressly
prohibits employers from ‘participating in a contractual or other
arrangement that has the effect of subjecting a covered entity’s
qualified applicant or employee to . . . discrimination’”) (quoting

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First, Rodriguez presented ConAgra’s response to his

interrogatories, in which ConAgra admitted its position that

Rodriguez was not qualified for any other position at its plant:

Interrogatory No. 7: Was Plaintiff qualified for any
other positions at ConAgra Foods? Please include in your
answer any positions for which he would have been
qualified with a reasonable accommodation on your part.

Answer: No.

Alone, this statement is sufficient to support a reasonable fact-

finder’s conclusion that ConAgra considered Rodriguez unable to

perform a broad class of jobs.32 When this statement is coupled

with the fact that ConAgra withdrew Rodriguez’s job offer for the

express reason that it viewed him as unfit for the entry-level

Production Utility position —— which is a job that, because it

42 U.S.C. § 12112(b)(2)); Gillen v. Fallon Ambulance Serv., Inc.,
283 F.3d 11, 31 (1st Cir. 2002) (relying on Holiday); EEOC v. Texas
Bus Lines, 923 F. Supp. 965, 973-74 (S.D. Tex. 1996); 42 U.S.C. §
12112(b)(2) (defining “discriminate” to include “participating in
a contractual or other arrangement or relationship that has the
effect of subjecting a covered entity’s qualified applicant or
employee with a disability to” discrimination); cf. 42 U.S.C. §
12112(d)(1) (extending the ADA’s prohibition of discrimination to
“medical examinations and inquiries”).
32
In its brief to this court, ConAgra now tries to explain
away this answer, contending that it viewed Rodriguez as not
“‘qualified’ for any other positions at the plant” because of a
collective bargaining agreement that precluded ConAgra from
considering outside hires for fourteen of the plant’s sixteen
positions. We are not convinced.
“[Q]ualified” is a term of art in the ADA context; an
individual is “qualified” if “with or without reasonable
accommodation, [she] can perform the essential functions of the
employment position that such individual . . . desires.” 42 U.S.C.
§ 12111(8) (emphasis added). And without caveat, ConAgra flatly
stated that Rodriguez is not “qualified” for any other position at
its plant. Its post-hoc explanation just does not hold water.

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requires only the most basic skills and abilities, virtually any

able-bodied person could perform —— it follows inescapably that

ConAgra viewed Rodriguez as unfit to perform a wide range of jobs.

This same analysis applies to Zamora. In her deposition,

Zamora stated that, based on Dr. Morris’s assessment, she viewed

Rodriguez’s diabetes as uncontrolled. She confirmed that, in her

mind, an uncontrolled diabetic is one who is not taking his

medication. This, according to Zamora, could lead to dizziness and

blacking out, thereby preventing Rodriguez from performing the

essential duties of his job. Like ConAgra itself, if Zamora

regarded Rodriguez as unable to perform the Production Utility

position because of his diabetes, then there are essentially no

manual labor jobs for which she regarded him as being able to

perform.

Finally, Dr. Morris testified that the results of Rodriguez’s

urinalysis made him unfit to perform any manual labor job. In Dr.

Morris’s own words, “[O]utside of a padded room where he could even

then fall and break his neck from dizziness or fainting, I don’t

know that there would be a safe environment that we could

construct.”

This summary judgment evidence shows beyond cavil, as a matter

of law, that ConAgra regarded Rodriguez’s diabetes as substantially

limiting his ability to engage in the major life activity of

working. Undeterred, though, ConAgra continues to disagree.

c. ConAgra’s Position

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 In response to Rodriguez’s compelling evidence, ConAgra wields

a broad ax in lieu of a scalpel, arguing expansively that the ADA’s

protection simply does not extend to Rodriguez. Its flawed

syllogism goes: (1) Rodriguez has failed to control his diabetes;

(2) because diabetes is a “generally controllable” illness,33

ConAgra regarded Rodriguez not as suffering generally from the

impairment of diabetes, but rather as suffering from the impairment

of the more specific uncontrolled diabetes; ergo (3) uncontrolled

diabetes —— or, as ConAgra puts it, a plaintiff’s “failure to

control [his] controllable” impairment —— is not an impairment that

is protected by the ADA. This overbroad generalization widely

misses the mark.

In firing its broadside argument, ConAgra cites to no less

than seventeen decisions purporting to support its proffered

“failure to control” rule. This extensive citation list, however,

suffers from a fatal flaw: Each decision in the list is completely

inapposite to this case. In fact —— even if we were to assume

arguendo that ConAgra’s “failure to control” rule were a valid

interpretation of the ADA34 —— the rule itself would remain totally

33
Rodriguez, No. 4:03-CF-055-Y, at 7.
34
Notably, ConAgra makes no attempt whatsoever to justify the
“failure to control” rule or to explain why it is a legitimate
reading of the ADA. It need not have looked far, though, to round
up the competing arguments —— the rule’s validity, which we need
not address today, is a thorny and contentious issue. Compare Jill
Elaine Hasday, Mitigation and the Americans with Disabilities Act,
103 MICH. L. REV. 217, 225-26 (2004) (arguing in favor of imposing
a duty on impaired individuals to mitigate the effects of their
impairment) with Sarah Shaw, Comment, Why Courts Cannot Deny ADA
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inapposite to this case.

Fifteen of the seventeen cases to which ConAgra cites are not

“regarded as” disability cases at all: Fourteen of them involved an

actual disability35 and one involved the plaintiff’s record of an

actual disability.36 In other words, the plaintiffs in these cases

Protection to Plaintiffs Who Do Not Use Available Mitigating
Measures for Their Impairments, 90 CAL. L. REV. 1981, 1984-85 (2002)
(arguing the opposite).
35
See Hein v. All Am. Plywood Co., 232 F.3d 482, 487 (6th Cir.
2000); Burroughs v. City of Springfield, 163 F.3d 505, 506 (8th
Cir. 1998); Van Stan v. Fancy Colours & Co., 125 F.3d 563, 566 (7th
Cir. 1997); Siefken v. Village of Arlington Heights, 65 F.3d 664,
665 (7th Cir. 1995); White v. Coyne Int’l Enterprises Corp., No.
3:02-CV-7505, 2003 WL 22060545, at *2 (N.D. Ohio July 23, 2003);
Johnson v. Maynard, No. 01-CIV.7393, 2003 WL 548754, at *4
(S.D.N.Y. Feb. 25, 2003); Rose v. Home Depot U.S.A., Inc., 186 F.
Supp. 2d 595, 596 (D. Md. 2002); Hewitt v. Alcan Aluminum Corp.,
185 F. Supp. 2d 183, 186 (N.D.N.Y. 2001); Brookins v. Indianapolis
Power & Light Co., 90 F. Supp. 2d 993, 995 (S.D. Ind. 2000);
Tangires v. Johns Hopkins Hosp., 79 F. Supp. 2d 587, 589 (D. Md.
2000); Bowers v. Multimedia Cablevision, Inc., No. 96-1298-JTM,
1998 WL 856074, at *4 (D. Kan. Nov. 3, 1998); Pangalos v.
Prudential Life Ins. Co. of Am., No. 96-0167, 1996 WL 612469, at *1
(E.D. Pa. Oct. 15, 1996); Roberts v. County of Fairfax, Va., 937 F.
Supp. 541, 547-48 (E.D. Va. 1996); Franklin v. U.S. Postal. Serv.,
687 F. Supp. 1214, 1216 (S.D. Ohio 1988).
36
See Winters v. Pasadena Indep. Sch. Dist., 124 Fed. Appx.
822, 823 (5th Cir. 2005).
The other two cases on which ConAgra relies, Bayless v. Orkin
Exterminating Co., No. 02-50560 (5th Cir. May 5, 2003) (per
curiam), and Burrell v. Cummins Great Plains, Inc., 324 F. Supp. 2d
1000 (S.D. Iowa 2004), are equally irrelevant. Both cases did
involve “regarded as” disability claims. But contrary to ConAgra’s
description of Bayless, we did not reject the plaintiff’s claim
“because his diabetes was not well controlled.” Rather, we
rejected the plaintiff’s claim because his employer did not regard
his impairment as a “‘permanent or long-term’” limitation on a
major life activity. No. 02-50560, slip op. at 7-8 (quoting Toyota
Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002)). And
in Burrell, the district court grounded its finding that the
plaintiff’s employer did not regard him as substantially limited in
the major life activity of working on the fact that “in light of
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contended that they suffered (or had a record of suffering) from an

impairment that actually substantially limited their ability to

engage in a major life activity. This distinction is important

because in an “actual disability” case there is something for the

plaintiff to control, namely the substantially limiting impairment

from which the plaintiff claims to suffer. In stark and telling

contrast, “regarded as” disability claims, like Rodriguez’s, are

grounded in the foundational distinction that the plaintiff’s

impairment is not substantially limiting. Stated differently, in

this and all other cases involving only a “regarded as” disability

claim, there is nothing for the plaintiff to control or mitigate.

Thus, applying the supposed “failure to control” rule in a

“regarded as” case just makes no sense.37

In a world governed by such reasoning, an impaired but not

substantially limited plaintiff who asserts only a “regarded as”

ADA claim could never succeed: No one can “control” a nonlimiting

[plaintiff’s] skills and the array of jobs available to [him]
utilizing those skills, [he] has failed to show that he is regarded
as unable to perform a class of jobs.” 324 F. Supp. 2d at 1017
(emphasis added). The Burrell court’s only discussion of the
plaintiff’s failure to control his medical condition was in the
context of how that failure to control made the plaintiff a safety
risk to the employer. Id. at 1018. How this helps ConAgra’s case
is unclear, as ConAgra has specifically disavowed any reliance on
the possible safety risks posed by Rodriguez as a basis for its
decision to withdraw his job offer.
37
Cf. Debra Burke & Malcolm Abel, Ameliorating Medication and
ADA Protection: Use It and Lose It or Refuse It and Lose It?, 38
AM. BUS. L.J. 785, 800 (2001) (noting that a rule establishing a
duty to mitigate the effects of a substantially limiting impairment
would “appl[y] only to the case of an actual disability”).
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impairment that by definition is merely “regarded as” substantially

limiting. Such an imagined condition cannot —— and thus need not

—— be controlled. An effort like ConAgra’s to apply the “failure

to control” rule to a “regarded as” claim is a logical

impossibility that flies in the face of Congress’s and the Texas

legislature’s explicit determinations that the ADA and the TCHRA

should protect an individual who is not limited by his impairment

but who is nonetheless “regarded as” substantially limited.38 We

reject ConAgra’s attempt to insert interstitially its “failure to

control” rule into this case. Thus, we need not address the

substantive question whether the rule itself is a valid

interpretation of the TCHRA/ADA, leaving that determination for

another day. Rodriguez is entitled to summary judgment that

ConAgra regarded him as substantially limited in the major life

activity of working by his diabetes.

2. ConAgra Concedes that It Withdrew Rodriguez’s Job Offer
Because of His Diabetes

ConAgra has made resolution of this prong of the TCHRA/ADA

analysis easy: In its appellate brief, ConAgra twice concedes

(albeit coupled with an irrelevant caveat) that it withdrew

Rodriguez’s job offer because it regarded him as substantially

limited by his diabetes in the major life activity of working. In

that caveat, ConAgra continues to contend that the allegedly

“uncontrolled” nature of Rodriguez’s diabetes saves it from

38
See 42 U.S.C. § 12102(2)(C); TEX. LAB. CODE § 21.051.
-19-
liability. At its core, ConAgra’s argument is that Rodriguez’s

alleged “failure to control” his diabetes constitutes a legitimate,

nondiscriminatory justification (à la McDonnell Douglas Corp. v.

Green39) for its withdrawal of Rodriguez’s job offer. This argument

depends for its very viability on ConAgra’s underlying assumption

that its “failure to control” rule is both valid and applicable in

this “regarded as” action: Rodriguez’s alleged “failure to control”

his diabetes would qualify as a “legitimate”40 justification for

ConAgra’s withdrawal of the job offer only if a “failure to

control” one’s substantially limiting impairment did in fact

obviate the protection of the ADA. This contention, however, is

yet another red herring: As we have already emphasized, this is a

“regarded as” case, so the purported “failure to control” rule,

even if valid, simply does not apply here and thus need not be

addressed today. ConAgra’s admission that it withdrew Rodriguez’s

job offer because of its perception that he suffers from

uncontrolled diabetes, is the functional equivalent of an admission

that it withdrew the offer because it regarded him as substantially

limited by his diabetes.

Related to the “because of” prong of the TCHRA/ADA analysis is

the question of discriminatory intent. On this point, ConAgra

argues that neither Rodriguez nor we have any reason to believe

that it harbors ill-will towards diabetics as a class. We agree,

39
411 U.S. 792, 802 (1973).
40
Id.
-20-
especially considering the evidence establishing that ConAgra

employs a number of diabetics —— albeit those whom it characterizes

as “controlled” —— at its Ranch Style Beans plant. But both that

evidence and ConAgra’s assertion are beside the point. This case

is one of those rare ADA cases in which we are presented with

direct (rather than circumstantial) evidence of discriminatory

intent: ConAgra and Ms. Zamora have both admitted that Rodriguez

did not get his job because of his allegedly uncontrolled diabetes.

Discrimination —— even if not motivated by animus towards the

discriminated-against individual —— can still be invidious. And

that is the case here: Without giving Rodriguez the chance to be

evaluated based on his own individualized experience with diabetes,

ConAgra lumped him into a class with all putative “uncontrolled”

diabetics and summarily denied him the Production Utility job. The

ADA does not draw lines between this type of discrimination and

that motivated by open-hostility. All disability discrimination in

employment is unlawful.41 Rodriguez is entitled to partial summary

judgment of liability on his disability discrimination claim.42

41
Cf. Vaughn v. Edel, 918 F.2d 517, 522-23 (5th Cir. 1990)
(reversing the district court’s denial of a Title VII race
discrimination claim; reasoning that Title VII prohibits even
disparate treatment grounded in race but motivated by “self-
interest rather than racial hostility”).
42
ConAgra puts forth two additional arguments that, because
the “failure to control” rule is inapplicable to this case, are
also easily dismissed. First, ConAgra argues that the TCHRA/ADA
does not protect a plaintiff whose employer mistakenly regards a
plaintiff’s controllable impairment as uncontrolled. Second,
ConAgra argues that Rodriguez presented no evidence to the district
court that his diabetes was in fact under control. Obviously, both
-21-
 3. The Allegedly Uncontrolled State of Rodriguez’s Diabetes
Does not Provide a Legitimate Justification for ConAgra’s
Withdrawal of the Job Offer

Even if ConAgra’s “failure to control” rule were a valid

interpretation of the ADA, for another independent reason ConAgra’s

assertion of the rule in this case as a justification for

withdrawing Rodriguez’s job offer fails McDonnell Douglas’s

requirement of legitimacy. In assessing Rodriguez’s fitness for

the Production Utility position, ConAgra failed to follow the ADA’s

mandate that it measure the impact of Rodriguez’s diabetes on his

ability to work in an individualized manner.43 Without such an

individualized assessment, ConAgra had no way of knowing whether

Rodriguez’s presumed failure to control his diabetes would actually

prevent him from performing the requirements of the position. Such

knowledge, however, is a key component of each of the cases

involving an actual (or a record of an actual) disability that

ConAgra cites in support of its “failure to control” rule. Every

one of those courts was presented with particularized evidence of

how the impaired employee’s failure to control his impairment

arguments assume that the “failure to control” rule applies here.
As we have shown, it does not, making both arguments meritless.
43
Indeed, had there been an individualized review of
Rodriguez’s abilities, we likely would not even be here today.
This is a “regarded as” case of disability discrimination; as such
it is premised on ConAgra’s mistaken perception of Rodriguez as
substantially limited by his diabetes. Had ConAgra performed the
individualized review the ADA requires, it likely would have
discovered that Rodriguez is not actually substantially limited by
his diabetes.
-22-
rendered him unable to perform his job adequately.44 Here, there

was no such particularized evidence, and there could not have been

any without the individualized review required by the ADA. In

fact, all of the particularized evidence available to ConAgra about

Rodriguez’s ability to perform his job established exactly the

opposite: He received the full-time employment offer precisely

because he was already performing up to ConAgra’s expectations.

Without any actual evidence of Rodriguez’s unsuitability for the

Production Utility position, ConAgra had to rely on precisely the

type of “‘stereotypes and generalizations’” about diabetes and

diabetics that the ADA abhors.45 Such reliance is impermissible;

it renders ConAgra’s purportedly legitimate justification for its

withdrawal of Rodriguez’s job offer discriminatory.

44
See, e.g., Siefken, 65 F.3d at 667 (holding that “when an
employee knows that he is afflicted with a disability, needs no
reasonable accommodation from his employer, and fails to meet the
employer’s legitimate job expectations, due to his failure to
control a controllable disability, he cannot state a cause of
action under the ADA.”) (emphasis added).
45
Gillen, 283 F.3d at 29 (quoting Prevo’s Family Mkt., Inc.,
135 F.3d at 1097).
-23-
 a. The TCHRA/ADA’s Requirement of Individualized
Assessment

In its Sutton,46 Toyota Motor Manufacturing,47 and Murphy v.

UPS, Inc.48 decisions, the Supreme Court repeatedly emphasized “the

individualized approach of the ADA.”49 The ADA is, after all, an

anti-discrimination law; as such, it is meant to discourage —— not

to promote —— the use of class-based grounds in employment-related

decisionmaking. Under this individualized approach, the question

whether an applicant is disabled must be answered “in . . . a case-

by-case manner.”50 Employers cannot rely on “perceptions of [a]

disability based on ‘myth, fear or stereotype’”51; rather, they must

evaluate an applicant in her actual state. In other words,

employers must focus on whether the particular applicant before it

is actually substantially limited by his impairment and on whether

the applicant is actually capable of performing the essential

functions of the job at issue.52 This emphatic focus on the

46
527 U.S. at 482-84.
47
534 U.S. at 198-99.
48
527 U.S. 516, 521 (1999).
49
Sutton, 527 U.S. at 484; see also Kapche v. City of San
Antonio, 304 F.3d 493, 499 (5th Cir. 2002) (“These intervening
Supreme Court cases consistently point to an individualized
assessment mandated by the ADA under various sections of the
Act.”).
50
Toyota Motor Mfg., Ky., Inc., 534 U.S. at 198.
51
29 C.F.R. § 1630.2(l) App.
52
See Sutton, 527 U.S. at 482-84; cf. Nawrot v. CPC Int’l, 277
F.3d 896, 904 (7th Cir. 2002) (noting that in analyzing whether a
-24-
individual applicant’s actual abilities “effectuate[s] one of the

primary goals of the ADA: ‘to prohibit employers from making

adverse employment decisions based on stereotypes and

generalizations associated with the individual’s disability rather

than on the individual’s actual characteristics.’”53 Further, the

importance of proceeding in a case-by-case manner is even more

pronounced when an impairment such as diabetes is at issue: “An

individualized assessment of the effect of an impairment is

particularly necessary when the impairment is one whose symptoms

vary widely from person to person.”54

b. ConAgra Did Not Assess the Effect of Rodriguez’s
Diabetes in an Individualized Manner

The record in this case unequivocally establishes that ConAgra

did not base its decision to withdraw Rodriguez’s job offer on the

plaintiff is disabled, courts should not “meander in ‘would, could,
or should-have’ land”; rather, courts should “consider only the
[mitigating] measures actually taken and consequences that actually
follow”).
53
Gillen, 283 F.3d at 29 (quoting Prevo’s Family Mkt., Inc.,
135 F.3d at 1097); see also Sutton, 527 U.S. at 483 (rejecting an
approach to the disability determination that would “force
[employers to rely on] general information about . . . an
impairment . . . , rather than on the individual’s actual
condition”). Such generalizations about diabetes clearly
influenced the district court’s resolution of this case, as shown
by its characterization of diabetes as “generally controllable.”
See Rodriguez, No. 4:03-CV-055-Y, at 7. Under an individualized
approach to the ADA, whether or not diabetes is “generally
controllable” simply is not relevant. What is relevant is the
specific and individualized effect of the diabetes on the plaintiff
at issue.
54
Toyota Motor Mfg., Ky., Inc., 534 U.S. at 199 (emphasis
added).
-25-
kind of individualized and fact-intensive assessment envisioned by

the ADA. To start with, Rodriguez’s offer was withdrawn on the

basis of ConAgra’s blanket determination that it would not hire any

diabetic who its physicians characterize as “uncontrolled,”

regardless whether the particular diabetic might be able to perform

the essential functions of the job at issue. Such a policy not

only ignores the ADA’s mandate that employers consider an impaired

applicant on the basis of his actual abilities, but it also

empowers ConAgra to make an end-run around the ADA’s prohibition of

discrimination.55

Any possible doubt as to whether ConAgra proceeded in an

individualized manner is dispelled by Ms. Zamora’s deposition

testimony showing that her view of Rodriguez’s diabetes (and of

diabetes in general) was colored by “stereotypes and

55
A hypothetical case will illustrate the potential for
ConAgra’s end-run: Consider employee “A” who suffers from a walking
impairment and who, as a result, walks with a limp. Even with his
limp, A is able to perform his job up to his employer’s
expectations. A’s limp could be corrected through the use of a
cane, but for personal, legitimate reasons, A has chosen not to use
a cane. Unfortunately, A’s limping makes his employer, “Z” —— who
harbors a prejudice against limpers —— uncomfortable. Z sends A to
the company doctor, who conveniently concludes that A has failed to
control his otherwise controllable impairment by refusing to use a
cane. Under the theory advanced by ConAgra in this case, Z would
then be free, notwithstanding the ADA, and notwithstanding A’s
adequate job performance, to terminate A’s employment simply
because of Z’s discomfort with A’s limp. Z would just need to
follow ConAgra’s argument here: “Yes, A is disabled. Yes, he is
otherwise qualified for his job. And yes, he is performing his job
up to our legitimate expectations. But no, we did not fire him
because of his impairment; we fired him because of his failure to
control his impairment. And A’s failure to control his
controllable impairment is not protected by the ADA.”
-26-
generalizations” about the illness.56 At one point, Rodriguez’s

counsel asked Zamora:

Q: Do you know whether all diabetics take medication?
A: I believe they do, yes.
Q: And do you believe that if someone is diabetic and not
taking medication that they have uncontrolled diabetes?
A: Yes. I understand that to be true.
. . .
Q: So is there a way for a diabetic to control diabetes
without medication?
. . .
A: I would think not.

Dr. Morris himself, though, flatly answered “No” when asked in his

deposition whether “all diabetics need to take medication.”

According to Dr. Morris, some diabetics are able to manage their

illness through “diet and exercise.”

This exchange demonstrates that Zamora (the decisionmaker in

this case) harbored fundamental misunderstandings —— and employed

prejudices —— about diabetes. Yet despite her misunderstandings,

Zamora never asked Dr. Morris what he meant to convey by describing

Rodriguez’s diabetes as “uncontrolled.” Rather, Zamora relied

unscientifically on her personal concepts about the illness gleaned

from working with diabetics and from having two diabetic parents.

On this flimsy foundation —— and without giving any consideration

to the actual, individualized impact of Rodriguez’s diabetes on his

life —— Zamora concluded that she “know[s] that if [a diabetic]

do[esn’t] have [his] medication to control diabetes, it certainly

presents a risk factor.” When asked what kinds of risks, Zamora

56
Prevo’s Family Mkt., Inc., 135 F.3d at 1097.
-27-
said, “I know that, again, talking to our employees that are

diabetic . . . , that if they’re not taking their medication on

time and if they are not eating the proper foods at specific times,

it could cause them to become dizzy and possibly blackout.”

Perhaps most telling is this next statement by Zamora, as it proves

how deeply her misunderstanding of diabetes affects her hiring

decisions:

Q: Would you hire a diabetic who does not take medication
to work at ConAgra?
A: I would have to say if it’s uncontrolled, if the
diabetes is uncontrolled, I wouldn’t hire —— he would not
be hired.

To summarize, despite the fact that ConAgra’s own doctor

stated that a diabetic can control his illness without medication,

Zamora elected to rely on her own beliefs regarding the general

nature of the illness to conclude that any unmedicated diabetic

presents too significant a risk to hire. Her belief, though,

amounts to nothing more than speculation about the danger actually

posed by Rodriguez. Indeed, Zamora admitted as much:

Q: Let me put it this way. Do you know if someone
analyzed, based on [Rodriguez’s] own physical
limitations, whether he was, likely, to cause injury to
himself or others?
A: I don’t know.

Post-Sutton, speculation about the hypothetical risks posed by

a diabetic is not a legitimate ground on which to make an

employment decision. The Sutton Court, after all, specifically

rejected an approach that “would, in many cases, force [the

decisionmaker] to make a disability determination based on general
-28-
information about how an uncorrected impairment usually affects

individuals, rather than on the individual’s actual condition.57

That, however, is precisely what happened in this case. Zamora

decided not to hire Rodriguez based on her general beliefs (and

misconceptions) about the risks Rodriguez posed as an allegedly

uncontrolled diabetic.

Finally, ConAgra cannot escape its obligation to evaluate

Rodriguez’s actual abilities, notwithstanding his diabetes, by

blindly relying on the assessment of Dr. Morris. Dr. Morris

testified that he had no knowledge of the position for which

ConAgra was considering Rodriguez. Indeed, he had not even been

informed by ConAgra of any of the essential functions for which

Rodriguez would be responsible if hired. This, in itself, belies

the notion that Dr. Morris subjected Rodriguez to the

individualized assessment mandated by the ADA. As the First

Circuit has noted, “a medical opinion is often cogent evidence of

nondiscriminatory intent —— in some instances, it may even be

57
Sutton, 527 U.S. at 483 (emphasis added). The EEOC has
elaborated on this point:

The results of a medical inquiry or examination may not
be used to disqualify persons who are currently able to
perform the essential functions of a job, either with or
without an accommodation, because of fear or speculation
that a disability may indicate a greater risk of future
injury, or absenteeism, or may cause future workers’
compensation or insurance costs.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, TECHNICAL ASSISTANCE MANUAL ON THE
EMPLOYMENT PROVISIONS (TITLE I) OF THE AMERICANS WITH DISABILITIES ACT § 6.4
(1992) (emphasis added).
-29-
enough to justify summary judgment —— but the mere obtaining of

such an opinion does not automatically absolve the employer from

liability under the ADA.”58 The employer has an obligation to

ensure that its applicants are treated as individuals; “[t]hus, an

employer cannot slavishly defer to a physician’s opinion without

first pausing to assess the objective reasonableness of the

physician’s conclusions.”59

CONCLUSION

For the foregoing reasons, we reverse the district court’s

grant of ConAgra’s motion for summary judgment and that court’s

denial of Rodriguez’s motion. Further, we grant Rodriguez’s motion

for partial summary judgment, holding as a matter of law that

ConAgra discriminated against Rodriguez under the TCHRA; and we

remand this case to the district court for a determination of the

quantum of Rodriguez’s damages.

REVERSED in part; RENDERED in part; and REMANDED.

58
Gillen, 283 F.3d at 31 (citations omitted).
59
Id.; see also Holiday, 206 F.3d at 645 (reversing summary
judgment in favor of employer because “[c]ourts need not defer to
an individual’s doctor’s opinion that is neither based on an
individualized inquiry mandated by the ADA nor supported by
objective scientific and medical evidence”).
-30-