Guerra v. United Parcel Svc ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40435
IRMA GUERRA,
Plaintiff-Appellant,
v.
UNITED PARCEL SERVICE, INC.,
Defendant-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas, Corpus Christi
C-98-CV-528
_________________________________________________
February 13, 2001
Before JOLLY, MAGILL* and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:**
Irma Guerra worked for the United Parcel Service for twelve
years as a package car driver in UPS’ Corpus Christi facility.
An essential element of her job is that she be able to lift
seventy pounds. In fact, all of the positions at the Corpus
Christi location require that an employee lift seventy pounds.
UPS employees are allowed to seek assistance from either the
customer or an employee in the central office to lift packages
exceeding seventy pounds.
*
Circuit Judge of the Eighth Circuit, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
In May 1996, Guerra suffered a back injury which left her
permanently restricted by her doctor to lifting no more than
fifty pounds. From May 1996 until August 1996, UPS allowed
Guerra to do temporary “light-duty” work. UPS, however, would
not permit Guerra to return to her position as a package car
driver. Guerra is seeking relief under the Americans with
Disability Act of 1990 and Title VII of the Civil Rights Act of
1964. Guerra claims that she was not allowed to return to her
position because of her disability and that similarly situated
male employees were treated more favorably than she. The
district court granted summary judgment in favor of UPS on all
issues. Guerra now appeals.
We review a district court's grant of summary judgment de
novo, applying the same standard of review as would the district
court. See Ellison v. Connor, 153 F.3d 247, 251 (5th Cir.1998).
Summary judgment is only proper when there is not a genuine issue
as to any material fact and the movant is entitled to judgment as
a matter of law. See id. The evidence is viewed in a light most
favorable to the non-movant. See Cardinal Towing & Auto Repair,
Inc. v. City of Bedford, 180 F.3d 686, 690 (5th Cir. 1999).
ADA
To prevail on a discrimination claim under the ADA, Guerra
must prove that 1) she has a disability; 2) she is a qualified
individual for the position; and 3) there was an adverse
employment decision. Turco v. Hoechst Celanese Corp., 101 F.3d
1090, 1092 (5th Cir. 1996). The ADA defines a disability as “(A)
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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).
Despite her acknowledgment that this court reviews this case
de novo, Guerra first argues that she has a disability under the
ADA in her reply brief. She asserts that because the district
court assumed in its decision that she was disabled, this court
must also assume as such. In the statement of facts, however,
Guerra contends that her doctor determined that she was
permanently restricted to lifting less than fifty pounds.
Assuming arguendo that this is enough to sustain her burden that
she in fact suffers from a disability, she has not presented
issues of material fact that support the remaining requirements
of her prima facie case under the ADA.
Guerra contends that she is a “qualified individual” as
required by the ADA, because the requirement to lift seventy
pounds is an arbitrary standard and not truly an essential
element of her job. A “qualified individual” under the ADA
means:
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. For the purposes of this
subchapter, consideration shall be given to the
employer’s judgment as to what functions of a job are
essential . . . .
42 U.S.C. § 12111(8). Guerra’s job description requires that she
be able to lift seventy pounds. Guerra acknowledges that there
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are packages she delivers which weigh seventy pounds. Moreover,
the requirement is contained in all job descriptions at the
Corpus Christi facility. In fact, in the Joint Pretrial Order,
signed by the attorneys for both Guerra and UPS, the parties set
forth as an admission of fact that there is no genuine dispute
that “the ability to lift seventy (70) pounds is an essential job
function for a UPS delivery driver including a package car
driver.” Given the relatively small size of the Corpus Christi
facility, UPS has consistently required that employees be able to
lift seventy pounds and has not waived this lifting requirement
for other permanent employees. Moreover, “[Congress] provided
that whenever an employer gives written descriptions of the
essential function of a job, those descriptions are entitled to
substantial deference.” Riel v. Electronic Data Sys. Corp., 99
F.3d 678, 682 (5th Cir. 1996); 42 U.S.C. § 12111(8).
Nonetheless, Guerra contends that with reasonable
accommodation she could perform this function of her job. “[T]he
term ‘discriminate’ in the context of the ADA ‘includes not
making reasonable accommodations to the known physical or mental
limitations for an otherwise qualified individual with a
disability . . . .” Gammage v. West Jasper School Board of
Education, 179 F.3d 952, 954 (5th Cir. 1999). For example, she
suggests that UPS could provide her with dollies and lifts or
that it could allow her to ask for help from the customer or
other employees when the package weighs more than fifty pounds.
Alternatively she argues that UPS could put her on a route with
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traditionally lighter packages or combine clerical or car washing
positions to create a full time position for her. Moreover,
Guerra assets that UPS did not engage in an interactive process
to find a way to accommodate her disability.
“The ADA does not require an employer to relieve an employee
of an essential function of his or her job, modify those duties,
reassign existing employees to perform those jobs, or hire new
employees to do so.” Burch v. City of Nacogdoches, 174 F.3d 615,
621 (5th Cir. 1999); Robertson v. Neuromedical Ctr., 161 F.3d
292, 295 (5th Cir. 1998). Even if UPS were to provide Guerra
with a lift and dollies, it is unclear how Guerra would then be
able to put the package on the dolly, bring the dolly up stairs
or lift the package off the dolly. Moreover, UPS has no duty to
have someone else do Guerra’s job to accommodate her disability.
The essential function of her job is to lift up to seventy
pounds, requiring someone else to lift packages weighing more
than 50 pounds is not accommodating her disability to allow her
to do the essential function of her job, but merely hiring
someone else to do it.
We have held that an employer is not required to create
light duty jobs to accommodate disabled employees. Foreman v.
The Babcock and Wilcox Co., 117 F.3d 800, 809 (5th Cir. 1997);
Turco v. Hoechst Celanese Chemical Group, Inc., 101 F.3d 1090,
1094 (5th Cir. 1996). “For the accommodation of a reassignment
to be reasonable, it is clear that a position must first exist
and be vacant. Under the ADA, an employer is not required to
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give what it does not have.” Foreman, 117 F.3d at 810. In fact,
[the employer] would not be obligated to accommodate
[the employee] by reassigning him to a new position.
“We do not read the ADA as requiring affirmative action
in favor of individuals with disabilities, in the sense
of requiring disabled persons be given priority in
hiring or reassignment over those who are not disabled.
It prohibits employment discrimination against
qualified individual with disabilities, no more and no
less.”
Id. Thus, UPS has no duty under the ADA to create a position
for Guerra or to hire someone else to do her job.
Guerra also argues that UPS refused to engage in the
interactive process which is why UPS failed to find a way to
accommodate her. “When 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).
The employer, however, need only engage in an informal
interactive process. Id. at 736. The record reflects that UPS
did indeed engage in this process — it did so through letters,
phone calls and the scheduling of a medical examination to
determine if any reassignment would be possible.
In the instant case, all permanent positions in the Corpus
Christi facility require as an essential element of the position
that the employee be able to lift seventy pounds. There are no
permanent clerical or car washing positions available in the
Corpus Christi facility. Accordingly, Guerra is not a qualified
employee as a matter of law under the ADA and has therefore
failed to show a prima facie case of disability discrimination
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under the ADA.
TITLE VII
Under Title VII, it is unlawful “for an employer . . . to
fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex or
national origin.” 42 U.S.C. § 2000e-2(a)(1). To establish a
prima facie case for a gender discrimination claim Guerra must
show 1) she was in a protected class; 2) she was qualified for
her position; 3) she suffered an adverse employment action; and
4) male employees were treated more favorably in similar
circumstances. Rutherford v. Harris County, Texas, 197 F.3d 173
(5th Cir 1999). To show similar circumstances, the employees’
situations must be “nearly identical.” Mayberry v. Vought
Aircraft, 55 F.3d 1086, 1090 (5th Cir. 1995).
Guerra claims that male employees were treated more
favorably than she. As support, however, Guerra uses examples of
individuals in different circumstances than she. For example,
one man was disabled because of his sight and could no longer be
a driver. He was, however, still able to lift seventy pounds and
therefore, UPS kept him as a full time employee in a different
position. Guerra also points to an employee who was restricted
to lifting no more than 50 pounds, but nonetheless, UPS created a
full time car washing position for him. This employee, however,
worked in the larger Houston facility where light duty positions
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were available. In the smaller Corpus Christi facility, no
permanent positions exist or are available that do not require an
employee to lift seventy pounds. The third male employee to
whom Guerra compares herself did not have a permanent injury and
returned to his position only after his lifting restriction was
waived by his doctor. Guerra has not shown that a fact issue
exists with respect to treatment of similarly situated employees
and has not supported her prima facie case.
Assuming however, that Guerra has established a prima facie
case, UPS has articulated a legitimate, nondiscriminatory reason
for terminating Guerra’s employment. See McDonnell-Douglas v.
Green, 411 U.S. 792, 802-04 (1973). UPS’ burden in this regard
“is one of production, not persuasion; it ‘can involve no
credibility assessment.’” Reeves v. Sanderson Plumbing Products,
Inc., 120 S. Ct. 2097, 2106 (2000)(citations omitted). If UPS
satisfies this burden, the burden shifts back to Guerra, who must
prove that “the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.”
Id.
In regard to pretext, the Court held that “[t]he ultimate
question is whether ‘the employer intentionally discriminated,
and proof that the employer’s proffered reason is unpersuasive or
even obviously contrived, does not necessarily establish that the
plaintiff’s proffered reason . . . is correct.’” Reeves, 120 S.
Ct. at 2107. “In other words, ‘it is not enough . . . to
disbelieve the employer, the fact finder must believe the
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plaintiff’s explanation of intentional discrimination.’” Id. at
2108. “A plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is
false, may permit the trier of fact to conclude that the employer
unlawfully discriminated.” Id. at 2109. “This is not to say
that such a showing by the plaintiff will always be adequate to
sustain a jury’s finding of liability. Certainly there will be
instances where, although the plaintiff has established a prima
facie case and set forth sufficient evidence to reject the
defendant’s explanation, no rational factfinder could conclude
that the action was discriminatory.” Id.
UPS contends that Guerra was terminated because she was not
able to perform essential functions of her job. Guerra offers no
evidence that this reason is pretextual or that the real reason
was discriminatory. There is no evidence that the seventy-pound
restriction was waived for any permanent male employee at a
facility the size of Corpus Christi. There is no evidence that
UPS discriminated against her because she was a female. Thus,
Guerra has not shown that an issue of material fact exists with
regard to gender discrimination.
Accordingly, we AFFIRM the district court’s granting of
summary judgment in favor of UPS.
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