Burch v. City of Nacogdoches, 97-41565

Citation174 F.3d 615
Decision Date10 May 1999
Docket NumberNo. 97-41565,97-41565
Parties9 A.D. Cases 509, 9 A.D. Cases 637 Gene A. BURCH, Plaintiff-Appellant, v. CITY OF NACOGDOCHES, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Mark C. Brodeur, Dallas, TX, for Defendant-Appellant.

Robert T. Cain, Jr., Galen Robert Alderman, Jr., Zeleskey, Cornelius, Hallmark, Roper & Hicks, Lufkin, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, BARKSDALE and STEWART, Circuit Judges.

STEWART, Circuit Judge:

This federal question case comes to us after the district court granted summary judgment in favor of Defendant-Appellee City of Nacogdoches 1 ("City") on a claim brought by Plaintiff-Appellant Gene A. Burch ("Burch") of employment discrimination under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 (1998) ("ADA"), and under Texas state law. While fighting a fire, Burch risked his own life to save a co-worker and suffered significant injury doing so. Since the case ultimately concerns the City's decision to terminate rather than to reassign Burch after his injury made it impossible for him to continue his duties as an active firefighter, we examine the summary judgment record carefully.

The district court determined that the City had no duty to reassign Burch or to create a job for him when he was no longer able to perform the essential functions of his job. The court also determined that Burch's state-law claims failed as a matter of law. Based on the factual record presented to us, we agree with the district court that the City had no duty to create a position for Burch either within or outside the Fire Department and that the Texas law claims were properly handled on summary judgment. After our de novo review of the record, we conclude that Burch failed to carry his burden of demonstrating that the City discriminated against him because of his disability. We therefore affirm the judgment of the district court granting summary judgment to the City.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Burch was initially employed as a firefighter by the City in 1969. On December 5, 1993, while rescuing a co-worker trapped in the attic of a burning house, then-Lieutenant Burch fell through a burning and collapsing floor. Burch fell on his back onto a cement garage floor with the co-worker on top of him; although the other firefighter was not injured, Burch suffered a severe lower back injury. This was Burch's third injury to his back; he had also injured it in 1978 and in 1985 while playing baseball with his family. Although Burch was released back to work on light duty in late December 1993 and attempted to work with his injury, he was unable to do so without significant pain; therefore, he began receiving workers' compensation medical benefits under the City's plan on January 13, 1994. 2 After again attempting to work in pain, in March 1994 Burch underwent a back fusion surgery, performed by Dr. Floyd Robinson ("Dr. Robinson"). Burch was placed on leave while he recovered from the surgery.

On December 27, 1994, Robinson responded to a December 21 letter from Fire Chief Fred Green ("Green") inquiring about Burch's status by stating that Burch would likely never be released to resume the usual duties of firefighter (including lifting, bending, and other physical labor) and that it was Robinson's belief that Burch intended to retire from the Fire Department. Although the City had asked Robinson what (light-duty) jobs Burch could perform, Robinson did not address that issue in his response and, indeed, never explained what tasks he believed Burch could perform. While the City never asked Burch himself what jobs he could undertake, Burch never followed up with Dr. Robinson to determine his light-duty status.

Around the time of this correspondence, Burch informed Green that his doctor had released him for light-duty work. Burch then met with the City's Director of Human Resources, Jerry Cessna ("Cessna"), pursuant to Green's recommendation. At this meeting, which Burch urges took place in December 1994, Cessna suggested to Burch that he retire, but Burch replied that he was not ready for retirement and would work in any capacity for the City. Burch then talked to Dave Magnis ("Magnis"), a Dallas workers' compensation insurance representative, who urged Burch to return to work in order to reduce the City's payment of workers' compensation benefits to him. 3 For the first three quarters of 1995, Burch continued to recover from the injury and surgery, but he was never offered reassignment by the City, notwithstanding his expression to the City that he desired to continue working for it. 4

In the approximately two months before his termination, Green (Burch's supervisor) and Cessna did review, however, potential position vacancies for Burch both within the fire department and in other city offices, although the City contends that Burch never specifically asked about the availability of light-duty jobs anywhere else in the City. Burch was not given a temporary light-duty position in the fire department at this time because Green and Cessna were awaiting Burch's clearance for such work. 5 In the past, other firefighters had been given light-duty positions because they had been released for such work, and Green and Cessna indicated that they would have made similar inquiries for Burch had he been officially released. 6 Again in September 1995, Burch alleges that he requested re-assignment to any vacancy in the City, and Cessna promised to alert him to any positions for which Burch was qualified, but Burch offers no proof that he ever demonstrated to the City which jobs (if any) he was physically able to perform. 7

Cessna testified that only two positions were vacant in the City during the period July-September 27--backhoe operator and laborer--and that the City met with Burch, discussed those positions, and determined that he could not perform them. At this point, the City did not revisit the issue of Burch's capabilities with Dr. Robinson because the two positions were definitionally outside the physical limitations that Robinson had permanently placed on Burch in his earlier letter. Burch, however, contends that seven positions were available and that, in October, an eighth became available, but Burch neither (1) made any inquiry with Dr. Robinson about his ability to perform in these positions nor (2) demonstrated to the City that he had the aptitude or the physical ability to take on any of these positions. 8 In any event, at a discussion on September 27, the City informed Burch, 20 months after the injury, that he would be terminated effective October 15 and that he would not be offered further employment with the City. Burch was informed that this was because he had not received a full work release, but the City made no effort to determine if Robinson believed that Burch could perform any of the available jobs. At this time, Burch was still receiving workers' compensation benefits, and Magnis was at the meeting to inform Burch what his benefits would be after discharge. Although it is not contested that Burch was physically unable to serve as a firefighter, the City subsequently filled Burch's Lieutenant position in the Fire Department on November 1, 1995 in order to bring the Fire Department to full capacity and to eliminate overtime work. Burch subsequently went to work as a jailer for the county sheriff's department.

On June 28, 1996, Burch filed suit. He alleged violations of the ADA and the anti-retaliation provisions of the Texas Workers' Compensation Act, TEX. LABOR CODE ANN. § 451.001 (Vernon 1996). Burch submitted that he was discriminated against on account of his disability because the City did not offer him a light-duty position, and that the City was motivated to fire him because he filed a workers' compensation claim. The parties filed disclosures and conducted discovery in the case. On August 30, 1997, the City filed a motion for summary judgment which was granted on September 3. Following a flurry of post-judgment motions and reconsideration by the district court, final judgment was entered against Burch on November 25, 1997. Burch's timely appeal to this court was filed on December 19, 1997.

II. DISCUSSION

After reviewing the record before us and evaluating the applicable law, we conclude that the district court's grant of summary judgment in favor of the City should be affirmed.

A. Standard of Review

We exercise de novo review of a district court's granting of summary judgment. See J&B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 365 (5th Cir.1998). Summary judgment shall be entered in favor of the moving party if the record, taken as a whole, "show[s] 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." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding that the moving party must demonstrate that there is no genuine issue of material fact as to any element of the claim). A factual dispute is "genuine" where a reasonable jury could return a verdict for the nonmoving party. See Crowe v. Henry, 115 F.3d 294, 296 (5th Cir.1997); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that a material fact is one that might affect the outcome of the case under the governing law). If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 597, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). All doubts shall be resolved in favor of the nonmoving party, and any reasonable inferences shall also be drawn in favor of that party. See Huckabay v. Moore, 142 F.3d 233, 238 (5th Cir.1...

To continue reading

Request your trial
119 cases
  • Wilkerson v. Boomerang Tube, LLC
    • United States
    • U.S. District Court — Eastern District of Texas
    • October 15, 2014
    ...800, 808 (5th Cir. 1997), cert. denied, 522 U.S. 1115 (1998) (citing 29 C.F.R. § 1630, App. Background); see Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999); Franklin v. City of Slidell, 969 F. Supp. 2d 644, 655 (E.D. La. 2013); Galvan v. City of Bryan, 367 F. Supp. 2d 1081,......
  • Nadeau v. Echostar
    • United States
    • U.S. District Court — Western District of Texas
    • October 30, 2013
    ...a reasonable accommodation would have enabled her to perform the essential functions of the position. Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999) ("Nacogdoches") (citing Turco, 101 F.3d at 1093). As a result,a fired (demoted, etc.) worker who cannot do the job even with ......
  • Nall v. BNSF Ry. Co.
    • United States
    • U.S. District Court — Southern District of Texas
    • February 14, 2017
    ...employees to perform those jobs, or hire new employees to do so.Hickman, 2012 WL 9100358, at *10 (citing Burch v. City of Nocogdoches, 174 F.3d 615, 621 (5th Cir. 1999)). Like the plaintiff's job in Hickman, Nall's position is safety critical. See Skinner, 489 U.S. at 628 (noting that railr......
  • McClurg v. Gtech Corp.
    • United States
    • U.S. District Court — District of Kansas
    • July 22, 1999
    ...reasonable accommodation of his disability would have enabled him to perform the essential functions of the job." Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir.1999). "The essential functions are those functions that the individual who holds the position must be able to perform u......
  • Request a trial to view additional results
18 books & journal articles
  • Disability discrimination
    • United States
    • James Publishing Practical Law Books Texas Employment Law. Volume 1 Part V. Discrimination in employment
    • May 5, 2018
    ...if not, can the individual perform the essential functions of the job with a reasonable accommodation? See Burch v. City of Nacogdoches , 174 F.3d 615, 619 (5th Cir. 1999) (applying two-step test); Turco v. Hoechst Celanese Corp. , 101 F.3d 1090, 1093 (5th Cir. 1996) (same); Rogers , 87 F.3......
  • Disability Discrimination
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 1 - 2017 Part V. Discrimination in employment
    • August 9, 2017
    ...if not, can the individual perform the essential functions of the job with a reasonable accommodation? See Burch v. City of Nacogdoches , 174 F.3d 615, 619 (5th Cir. 1999) (applying two-step test); Turco v. Hoechst Celanese Corp. , 101 F.3d 1090, 1093 (5th Cir. 1996) (same); Rogers , 87 F.3......
  • Discrimination Claims Under Labor Code Chapter 451
    • United States
    • James Publishing Practical Law Books Archive Texas Employment Law. Volume 2 - 2017 Part VI. Workplace Torts
    • August 19, 2017
    ...Chapter 451 even if the employer, not the employee, filed the claim for workers’ compensation benefits. Burch v. City of Nacogdoches , 174 F.3d 615 (5th Cir. 1999); Borden, Inc. v. Guerra , 860 S.W.2d 515, 521 (Tex. App.—Corpus Christi 1993, writ dism’d by agrmt.) (upholding application of ......
  • Summary judgment practice
    • United States
    • James Publishing Practical Law Books Texas Employment Law. Volume 1 Part VIII. Selected litigation issues
    • May 5, 2018
    ...Cir. 1997). An employer has no duty to create a position for an employee as a reasonable accommodation. Burch v. City of Nacogdoches , 174 F.3d 615, 620 (5th Cir. 1999). PRACTICE NOTE If the plaintiff claims reassignment was a reasonable accommodation, he must offer evidence that a position......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT