Holtzclaw v. DSC Communications Corp.

• Decision Date: 06 July 2001
• Docket Number: No. 00-40966,00-40966
• Parties: (5th Cir. 2001) Steven R. Holtzclaw, Plaintiff-Appellant, v. DSC Communications Corporation, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 254

255 F.3d 254 (5th Cir. 2001)

Steven R. Holtzclaw, Plaintiff-Appellant, v. DSC Communications Corporation, Defendant-Appellee.

No. 00-40966

UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

July 6, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Texas.

Before SMITH, DUHE, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Steven Holtzclaw appeals a summary judgment in his suit against DSC Communications Corporation ("DSC") asserting claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a), the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1140, and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 623(d). Because Holtzclaw is not physically able to do the job that he sought, either with or without accommodation, he fails to establish a prima facie case for any of his claims; accordingly, we affirm.

I.

Holtzclaw began working for DSC in 1984. Ten years later, he was hospitalized for chronic idiopathic pancreatitis but returned to work soon after his hospitalization. In April 1995, the severity of his pancreatitis forced him to take short-term disability leave. In December 1995, DSC's long-term disability ("LTD") carrier determined that Holtzclaw qualified for LTD benefits, based on his unequivocal statements that he was "unable to work at all," that he would never be able to return to work, and that his condition could not reasonably be accommodated by an employer. After making similar unequivocal statements to the Social Security Administration ("SSA"), Holtzclaw secured social security disability insurance.

In August 1996, Holtzclaw reapplied for a job at DSC. In September, the director of human resources informed him that DSC would not hire him because of low ratings on several 1993 and 1994 performance reviews. In October, Holtzclaw verified to DSC's LTD insurer that he had been completely and continuously unable to work for the previous twenty-four months, a period that included the time during which he was re-applying for a job at DSC.

In May 1997, Holtzclaw filed this suit, claiming that DSC had discriminated against him under the ADA, had interfered with his receipt of benefits under ERISA, and had retaliated against him under the ADEA. DSC moved for summary judgment on all of the claims, and Holtzclaw responded with a cross-motion for summary judgment on the ADA and ERISA discrimination claims. The court granted DSC's motion for summary judgment and denied Holtzclaw's.

While Holtzclaw's appeal was pending, the Supreme Court decided Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999), which rejected this circuit's application of judicial estoppel to an ADA accommodation case in which a plaintiff previously had claimed full disability. We therefore remanded Holtzclaw's case to the district court with instructions to reconsider his claims in light of Cleveland. On remand, the district court again granted summary judgment for DSC.

II.

We review a summary judgment de novo, applying the same standard as did the district court. D.E.W., Inc. v. Local 93, Laborers' Int'l Union, 957 F.2d 196 (5th Cir. 1992). Summary judgment is appropriate only where there is no genuine issue of material fact. Fed. R. Civ. P. 56(c). If the evidence is such that a reasonable jury could return a verdict for the non-moving party, there is a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Therefore, if the nonmovant fails to establish facts in support of an essential element of his prima facie claim, summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We may affirm a summary judgment on any ground supported by the record, even if it is different from that relied on by the district court. Tex. Refrig. Supply, Inc. v. FDIC, 953 F.2d 975, 980 (5th Cir. 1992).

III.

To present a prima facie case of discrimination under the ADA, Holtzclaw must show that "[he] is a qualified individual with a disability, and that the negative employment action occurred because of the disability." Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998). A "qualified individual with a disability" is defined in the ADA as someone who has a disability but who, "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8); accord Giles v. Gen. Elec. Co., 245 F.3d 474, 483 (5th Cir. 2001).

The summary judgment evidence indicated that Holtzclaw could not perform the essential functions of the position he sought. In statements to DSC's LTD insurer and to the SSA, Holtzclaw asserted the seriousness and long-term effects of his pancreatitis. He certified to the SSA that his conditions and medications "play havoc on [his] thinking and memory skills," "make it impossible to have a clear and normal mind," and "keep [him] from being able to think and concentrate." Holtzclaw also told the SSA that his "mental and physical abilities ha[d] decreased to a level where [he is] no longer self-supportive" and that he is simply "unable to function in the real world" from two to three days per week.

Furthermore, Holtzclaw related to DSC's LTD insurer that returning to work or commencing vocational rehabilitation was "not possible," that he could perform none of the duties of his former occupation, that it was "not possible to work" even with any form of accommodation, that he was "too sick" to consider any form of retraining, that he was "unable to work at all," and that he was "doing good [sic] to be alive." Holtzclaw also certified to the LTD insurer that he never expects to return to work and that his "illness is chronic and will never go away."

Even after he reapplied to DSC, stating that he was capable of performing all essential functions of the job, Holtzclaw nevertheless told DSC's LTD insurer that he was "totally disabled" from performing his own or any other job and indicated that neither rehabilitation services, job modification, nor vocational retraining would allow him to return to work. This reaffirmation of his disability for purposes of receiving LTD benefits included a verification that he had been continuously incapacitated from June 1996 through September 1996 the time period during which he reapplied for a job at DSC.

An ADA plaintiff who, in an application for disability benefits, asserts that he is unable to work must produce "an explanation of this apparent inconsistency" that is "sufficient" to defeat summary judgment on the issue of whether the plaintiff is a qualified individual with a disability. Cleveland, 526 U.S. at 807. Holtzclaw offers no explanation for the inconsistency between his sworn testimony in applying for LTD and SSA and his claim to DSC that he is a qualified individual with a disability who can perform the essential functions of the job. In fact, the only evidence he uses to support his contention that he was able to return to work is his belief that he was "physically able to return to work as of August 1996." In Cleveland, however, the Court held that a plaintiff "cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement." Id. at 806.

In an effort to prove his status as a qualified individual with a disability, Holtzclaw presented a medical release form signed by his doctor that states merely that he is able to return to work. The letter was based solely on Holtzclaw's assertion that he felt well enough to return to work: The doctor conducted no evaluation before writing the letter. The release thus is not probative evidence of Holtzclaw's ability to work.

Holtzclaw claims, too, that because none of his interviewers at DSC expressed a belief that he was too disabled to do the job, a reasonable jury could find him physically able to do it. This argument is without merit, because the purpose of the job interviews was to explore Holtzclaw's technical skills and experience, not to determine whether he was medically able to meet the demands of day-to-day employment.

Cleveland teaches that a plaintiff cannot change his story during litigation without a sufficient explanation for his inconsistent assertions. Holtzclaw has offered no sufficient explanation for the contradiction between his disability applications and his claim that, when he re-applied for the job, he could have worked even without reasonable accommodation. He therefore has failed to create a material issue of fact whether he is qualified for the position he sought. Because he cannot establish that element of his prima facie claim, summary judgment was appropriate on the ADA claim.¹

IV.

To establish a prima facie retaliation claim under the ADEA, Holtzclaw must show (1) that he engaged in a protected activity, (2) that there was an adverse employment action, and (3) that a causal link existed between the protected activity and the adverse employment action. Sherrod, 132 F.3d at 1112 n.8. Holtzclaw argues that his claim should have survived summary judgment, even though he cannot perform the job at DSC because qualification for the job is not a prima facie element of an ADEA retaliation claim. Instead, he urges that if the employer acted for a discriminatory reason, then even if he was not qualified for the job, he should still recover on his ADEA retaliation claim.

We have never expressly made qualification a prima facie element of an ADEA retaliation claim, but today we decide that such an element is necessary. Retaliation claims are nothing more than a protection against discrimination in that the employee against whom the employer has retaliated suffers discrimination based on the employee's exercise of a right to charge, testify, assist, or participate in a protected activity under the ADEA. See 29 U.S.C. § 623(d).

Because, in...