Case: 10-30854 Document: 00511637982 Page: 1 Date Filed: 10/19/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 19, 2011
No. 10-30854 Lyle W. Cayce
Clerk
ROMMEL E. GRIFFIN, SR.,
Plaintiff-Appellant
v.
UNITED PARCEL SERVICE, INCORPORATED,
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District Of Louisiana
Before JONES, Chief Judge, STEWART and SOUTHWICK, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Plaintiff-Appellant, Rommel E. Griffin, Sr., brought suit under the
Americans with Disabilities Act (ADA) against Defendant-Appellee, United
Parcel Service (UPS), for failing to provide a reasonable employment
accommodation in consideration of his diabetes. The district court entered
summary judgment in favor of UPS. As Griffin is not disabled within the
meaning of the ADA, and as UPS did not refuse to provide a reasonable
accommodation of a known limitation of Griffin’s condition, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Griffin, an insulin-dependent Type-II diabetic, was an employee of UPS for
nearly twenty-eight years, from March 1978 until he retired on December 1,
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2006. For most of his career at UPS, Griffin worked in a supervisory or
managerial capacity. Griffin’s most recent position at UPS was twilight hub
manager of the Morrison Road Center in New Orleans, Louisiana. The
“twilight” position required Griffin to work from approximately 2:00 p.m. until
10:00 p.m. five days per week.
Following Hurricane Katrina, Griffin began to experience unusual
numbness and pain, which his doctor attributed to stress. In March 2006,
Griffin took a medical leave of absence from UPS and attended an outpatient
counseling program at the West Jefferson Behavioral Medicine Center. During
this period, Griffin received the same salary and benefits that he had received
prior to his leave of absence. As a result of the counseling program, Griffin was
able to better manage his stress, and his stress-related symptoms improved.
Griffin was released to return to work on June 21, 2006. By way of a
letter, the Behavioral Medicine Center recommended that Griffin be acclimated
back to work on a part-time schedule and resume a full-time schedule on the
third week following his return to work.
Upon his return to UPS, Griffin was informed that his former position of
twilight hub manager had been filled. Gerald Barnes, then the employee
relations manager, told Griffin that he had requested a transfer to Atlanta, and
suggested that Griffin apply for his job. In late June, Griffin approached Roman
Williams, the district human resource manager, about the employee relations
manager position, but was informed that the position had been filled. In August
2006, Williams recommended to Griffin the position of training manager, a
newly-created position then under consideration. Griffin and Williams then met
with Alan Rundle, the operations manager, who informed them that the
proposed training manager position was not in the cost budget. Rundle then
assigned Griffin to the available midnight hub manager position. This position
would have required Griffin to work overnight hours.
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On August 24, 2006, Griffin delivered a letter, which included
“Accommodation Request” in the subject line, to Williams and Geraldine L.
Haydon, health management manager, stating that his doctors required that his
schedule be adjusted to daytime working hours in order to accommodate his
diabetes. On September 20, 2006, Sherry A. Anderson, district workforce
planning manager, notified Griffin by letter that he and his physician must
complete medical forms within four weeks so that UPS could assess his
accommodation request.
On November 13, 2006, Plaintiff wrote a letter to Haydon, which stated,
in part, “My diabetes is a condition that does not have to be a disability if I
manage it properly, but to do so I will need UPS to make the accommodation to
permit me to work days.” Attached to this letter were reports and forms from
his doctors. Dr. R. Fridge Cameron’s plan notes regarding Griffin’s discharge
from the Behavioral Medicine Center, dated June 20, 2006, stated that Griffin
would be best served by working day hours, as this would help him control his
diabetes. However, Dr. Cameron, in his completed medical form, dated
November 6, 2006, answered “No” to a question asking whether Griffin’s
impairments substantially limited his ability to perform any major life activities
other than working. A note from Dr. Tina K. Thethi, dated November 7, 2006,
stated that Griffin would be in a better position to follow his therapeutic diabetes
regimen if he worked morning hours.
Thereafter, by way of a letter dated November 16, 2006, Anderson notified
Griffin that his accommodation request was being denied because, based upon
the information provided, UPS was unable to conclude that he was eligible for
a reasonable accommodation under the Americans with Disabilities Act.
Subsequently, Griffin replied to Anderson, via a letter dated December 1, 2006,
and announced his retirement from UPS. Griffin never made any complaints to
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the regional human resources department, and did not participate in the formal
employee dispute resolution program.
On or about May 22, 2007, Griffin filed a charge of discrimination with the
Equal Employment Opportunity Commission. The EEOC failed to timely
investigate the charge, and issued Griffin a Notice of the Right to Sue. On April
28, 2008, Griffin filed his complaint, asserting a claim that UPS failed to provide
a reasonable accommodation as required by the ADA, as well as claims for age
and race discrimination which were disposed of separately and are not at issue
in this appeal. On August 5, 2010, the district court granted summary judgment
in favor of UPS on the ADA claim, having determined, inter alia, that Griffin
was not disabled within the meaning of the ADA. Griffin appealed.
II. STANDARD OF REVIEW
This court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the trial court. See Urbano v. Cont’l Airlines,
Inc., 138 F.3d 204, 205 (5th Cir. 1998). Summary judgment is proper if the
evidence shows that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Kee v. City of
Rowlett, 247 F.3d 206, 210 (5th Cir. 2001). The Court views all evidence in the
light most favorable to the non-moving party and draws all reasonable
inferences in that party’s favor. Crawford v. Formosa Plastics Corp., 234 F.3d
899, 902 (5th Cir. 2000). “Even if we do not agree with the reasons given by the
district court to support summary judgment, we may affirm the district court’s
ruling on any grounds supported by the record.” Lifecare Hosps., Inc. v. Health
Plus, Inc., 418 F.3d 436, 439 (5th Cir. 2005).
III. DISCUSSION
A. Disability
The ADA, 42 U.S.C. §§ 12102 et seq., prohibits discrimination in
employment against a qualified individual on the basis of his disability. The
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parties acknowledge that under our established precedent, the settled
interpretation of the ADA prior to the ADA Amendments Act of 2008, 122 Stat.
3553, governs the resolution of this case. See Carmona v. Sw. Airlines Co., 604
F.3d 848 (5th Cir. 2010).
To prevail on his ADA claim, Griffin must establish that 1) he has a
disability; 2) he is qualified for the position in which he seeks employment; and
3) he was discriminated against because of his disability. Jenkins v. Cleco
Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007). Under the ADA, to
“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.” 42 U.S.C. § 12112(b)(5)(A).
“‘As a threshold requirement in an ADA claim, the plaintiff must, of
course, establish that he has a disability.’” Waldrip v. Gen. Elec. Co., 325 F.3d
652, 654 (5th Cir. 2003) (quoting Rogers v. Int’l Marine Terminals, Inc., 87 F.3d
755, 758 (5th Cir.1996)). A disability is “[a] physical or mental impairment that
substantially limits one or more of the major life activities of such individual[.]”
29 C.F.R. § 1630.2(g).
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), the Supreme
Court instructed that courts are to make an individualized determination of
whether an employee’s impairment constitutes a disability, taking into
consideration measures taken by the employee to mitigate the effects of the
impairment. In so doing, the Court explained that a contrary interpretation of
the ADA
would almost certainly find all diabetics to be disabled, because if
they failed to monitor their blood sugar levels and administer
insulin, they would almost certainly be substantially limited in one
or more major life activities. A diabetic whose illness does not
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impair his or her daily activities would therefore be considered
disabled simply because he or she has diabetes. Thus, the [contrary]
approach would create a system in which persons often must be
treated as members of a group of people with similar impairments,
rather than as individuals.
Sutton, 527 U.S. at 483. Accordingly, under Sutton, the ADA requires a case-by-
case determination of the nature of the employee’s impairment. “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.” Toyota Motor Mfg. v. Williams, 534 U.S. 184, 199 (2002).
In this case, Griffin asserts that his diabetic condition substantially limits
his major life activity of eating. “Major life activities refer to those activities that
are of central importance to most people’s everyday lives.” Jenkins, 487 F.3d at
315. It is established in this circuit that eating is a major life activity. Waldrip,
325 F.3d at 655. Additionally, it is clear that diabetes, a disease affecting the
digestive, hemic, and endocrine systems, is a physical impairment under the
ADA. See Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003). Accordingly, the
remaining question is whether Griffin’s diabetic condition substantially limited
his eating.
Griffin was diagnosed with diabetes in approximately 1997. He was
initially able to manage his diabetes without medication, but, in 2004, he was
prescribed injectable insulin and medication, in addition to his routine of diet
and exercise. Griffin testified in his deposition that when his blood sugar drops,
he begins to perspire and must eat a meal. However, as long as he sticks to his
regimen of medication, meals, and rest, his diabetes is manageable. Griffin
further testified that the primary restrictions with regard to his diet are to
control his portion size, and to refrain from eating fatty, sugary, or otherwise
unhealthy foods. Griffin acknowledged that he occasionally indulges in small
portions of fried food without significant impact on his overall health. In an
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affidavit, Griffin stated that he must constantly monitor what and how much he
eats, and should eat on a consistent schedule.
Dr. Tilak K. Mallik, who treated Griffin, testified in his deposition that
Griffin’s diet required “proportion control” and “not tak[ing] quick sugar-
containing food.” Referring to his notes, Dr. Mallik was not aware of any
requirement that Griffin must work only during daytime hours in order to
maintain his dietary regimen. Dr. Cameron, Griffin’s primary physician,
testified in his deposition that Griffin’s dietary regimen could be maintained
even if he worked on a nighttime schedule.
“The analysis of when and under what conditions diabetes is considered
a disability for ADA purposes is a matter of degree.” Carreras v. Sajo, Garcia &
Partners, 596 F.3d 25, 34 (1st Cir. 2010) (internal quotation marks and citation
omitted). In addition to his once-daily insulin shot and medication, Griffin’s
diabetic condition requires only modest adjustments to his diet. Griffin
acknowledged that even when he makes mild deviations from his dietary plan,
the consequences are not imminently dangerous, and may be corrected by simply
eating more or less.
Griffin would have us conclude that, because diabetes can, as a general
matter, be a restrictive and debilitating condition, and Griffin could, if he did not
follow his dietary regimen, suffer serious health consequences, Griffin’s diabetes
amounts to a disability under the ADA. This proposed analysis is directly
contrary to Sutton, because it relies on hypothetical generalizations rather than
an individualized inquiry, and it fails to take into account the admittedly modest
dietary measures Griffin must take to mitigate the effects of his condition. “To
so hold would be to recognize all persons with diabetes, lactose intolerance, food
allergies, and various other eating-related impairments as disabled.” Walker v.
City of Vicksburg, No. 5:06-cv-60-DCB-JMR, 2007 WL 3245169, at *8 (S.D. Miss.
2007).
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“[N]either the Supreme Court nor this court has recognized the concept of
a per se disability under the ADA, no matter how serious the impairment; the
plaintiff still must adduce evidence of an impairment that has actually and
substantially limited the major life activity on which he relies.” Waldrip, 325
F.3d at 656. Griffin’s restrictions on what and how much to eat are at the
moderate end of the diabetes spectrum and do not amount to a significant
restriction on his eating. Accordingly, this case is closely analogous to those in
which our sister circuits have concluded that modest dietary restrictions
concomitant with an employee’s diabetic condition do not amount to substantial
limitations under the ADA. See Carreras, 596 F.3d at 34 (“Proof that a medical
condition requires medication, a fixed meal schedule, [and] timely snack breaks,
without more, does not amount to a ‘substantial limitation’ under the ADA.”
(internal quotation marks and citation omitted)); Collado v. United Parcel Serv.,
Co., 419 F.3d 1143, 1156 (11th Cir. 2005) (“Many people have to monitor their
food intake for health and lifestyle reasons, and avoiding ‘mostly sugars’ is not
‘significantly restricted’ for this purpose. If it were, all insulin-dependent
diabetics would have a ‘disability’ for ADA purposes, and we know from Sutton
that they do not.”); but see Fraser, 342 F.3d at 1041 (“We must carefully separate
those who have simple dietary restrictions from those who are truly disabled. At
the same time, we must permit those who are disabled because of severe dietary
restrictions to enjoy the protections of the ADA.”).
As Griffin’s diabetes treatment regimen requires only modest dietary and
lifestyle changes, no genuine issue exists as to whether his impairment
substantially limits his eating. Accordingly, the district court properly concluded
that Griffin is not disabled within the meaning of the ADA.
B. Reasonable Accommodation
Even assuming that Griffin is disabled within the meaning of the ADA, no
reasonable jury could find that UPS failed to reasonably accommodate Griffin’s
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known disability. Under the ADA, it is unlawful for an employer to fail to
accommodate the known limitations of an employee’s disability. “An employee
who needs an accommodation because of a disability has the responsibility of
informing her employer.” E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606,
621 (5th Cir. 2009). “This court has recognized that ‘where the disability,
resulting limitations, and necessary reasonable accommodations, are not open,
obvious, and apparent to the employer, the initial burden rests primarily upon
the employee . . . to specifically identify the disability and resulting limitations,
and to suggest the reasonable accommodations.’” Id. (quoting Taylor v. Principal
Fin. Grp., 93 F.3d 155, 165 (5th Cir. 1996)). “When a qualified individual with
a disability requests a reasonable accommodation, the employer and employee
should engage in flexible, interactive discussions to determine the appropriate
accommodation.” E.E.O.C. v. Agro Distrib., 555 F.3d 462, 471 (5th Cir. 2009).
“The ADA provides a right to reasonable accommodation, not to the
employee’s preferred accommodation.” Id. “The plaintiff bears the burden of
proving that an available position exists that he was qualified for and could,
with reasonable accommodations, perform.” Jenkins, 487 F.3d at 315. “A
disabled employee has no right to a promotion, to choose what job to which he
will be assigned, or to receive the same compensation as he received previously.”
Id. at 316. “[W]hen an employer’s unwillingness to engage in a good faith
interactive process leads to a failure to reasonably accommodate an employee,
the employer violates the ADA.” Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 736
(5th Cir. 1999). However, “an employer cannot be found to have violated the
ADA when responsibility for the breakdown of the ‘informal, interactive process’
is traceable to the employee and not the employer.” Id.
In the present case, Griffin objects to having been assigned the position of
midnight hub manager, because the position would have required him to work
an overnight shift. However, at the time that he was assigned this position, the
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only direction that UPS had received regarding Griffin’s schedule was a letter
from the West Jefferson Behavioral Medicine Center, which advised that Griffin
should be eased back into full-time work over the course of three weeks. This
letter made no mention of a restriction on overnight hours. At the time of the
assignment, UPS had no reason to be aware of such a restriction on the basis of
Griffin’s diabetes, as his prior medical leave of absence was attributed to stress.
After Griffin objected to the assignment and requested the accommodation
that he work only daytime hours, UPS responded to him by letter requesting
additional information and asking that he submit his medical forms within four
weeks so that it could process his request. Nearly two months later, Griffin
responded with a letter stating that his diabetes does not have to be a disability
if managed properly. Enclosed with the letter were reports and notes from his
doctors. None of the doctors reported that working the day shift was necessary
for the management of Griffin’s diabetes; rather, they suggested that a daytime
shift would be preferable. Moreover, Dr. Cameron responded that Griffin was
not substantially limited in the ability to perform any major life activity.
Thereafter, a district manager notified Griffin by letter that, based on the
information he provided, she was not able to conclude that he was entitled to the
requested accommodation under the ADA. Approximately two weeks later,
Griffin retired from UPS.
There is simply no evidence that UPS was unwilling to engage in a good-
faith, interactive process with Griffin regarding his request for a reasonable
accommodation. None of the information Griffin provided UPS indicated that
his requested accommodation was necessary for the management of his diabetes.
Rather than providing additional information about his illness or requesting
that UPS reconsider its decision, Griffin retired on his own accord a short time
later. Where an employee terminates the interactive process by voluntarily
retiring, it is difficult to discern what measures may have been taken had
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accommodation discussions continued. See Loulseged, 178 F.3d at 734 (“It is
difficult to judge the reasonableness of accommodations when the employee
withdraws before we can say with any authority what these accommodations
would have been.”); Agro Distrib., 555 F.3d at 471 (“The reasonable
accommodation analysis is hindered because [the plaintiff] did not show up for
work. Any discussion of the accommodations that might have been provided or
denied is mere speculation.”). Griffin also failed to identify an available position
that he should have received instead. Based upon the record evidence, no
reasonable juror could conclude that UPS was unwilling to, in good faith,
participate in an interactive process to reasonably accommodate Griffin’s needs.
IV. CONCLUSION
For the reasons expressed above, there is no genuine issue of material fact
as to whether Griffin’s diabetes amounted to a disability within the meaning of
the ADA, or whether UPS failed to reasonably accommodate a known limitation
of his condition. Summary judgment in favor of UPS was thus appropriate.
Accordingly, the judgment is AFFIRMED.
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