Andrew Amsel v. Texas Water Development Bd

Case: 11-50255 Document: 00511792991 Page: 1 Date Filed: 03/19/2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

March 19, 2012

No. 11-50255

Lyle W. Cayce

Clerk

ANDREW AMSEL,

Plaintiff-Appellant Cross-Appellee

v.

THE TEXAS WATER DEVELOPMENT BOARD; MELANIE CALLAHAN,

Successor, In Her Official Capacity as the Executive Administrator of the Texas

Water Development Board,

Defendants-Appellees Cross-Appellants

Appeals from the United States District Court

for the Western District of Texas

USDC No. 1:09-CV-389

Before KING, WIENER, and HAYNES, Circuit Judges.

PER CURIAM:*

Andrew Amsel (“Amsel”) appeals from the district court’s grant of

summary judgment in favor of the Texas Water Development Board, and

Melanie Callahan in her official capacity (collectively, “TWDB”). Amsel sued for

disability discrimination under Title I of the Americans with Disabilities Act

(“ADA”) and Rehabilitation Act, for age discrimination under the Age

Discrimination in Employment Act, and for retaliation under the Family and

*

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.

Case: 11-50255 Document: 00511792991 Page: 2 Date Filed: 03/19/2012

Medical Leave Act (“FMLA”). Amsel appeals only the judgment relative to his

disability and FMLA retaliation claims. For the following reasons, we AFFIRM.

I. FACTS AND PROCEDURAL BACKGROUND

TWDB is a state agency that provides water planning, financial and

technical assistance, and data collection for the State of Texas. Amsel worked

in various positions there from May 1997 until his termination in August 2007.

During his tenure, Amsel suffered from several medical conditions including

ischemic heart disease, functional class IV angina, and a major digestive

disorder. From 1997 to 2005, Amsel worked in TWDB’s information technology

group as a Systems Analyst. There, he was provided significant telecommuting

accommodations designed to allow him to work despite his health difficulties.

Amsel’s conditions stem from a 1992 quadruple coronary bypass and

cancer in 1993. As a result of these health conditions, Amsel’s ability to walk,

bend, and engage in daily tasks is significantly limited. Amsel’s heart problems

also cause severe chest pain and shortness of breath. The cancer also

necessitated removal of Amsel’s esophagus and relocation to his chest, resulting

in poor gastric emptying and several other related symptoms including nausea,

indigestion, vomiting, reflux, and a dumping reflex. Amsel testified that he is

thus rendered homebound until these symptoms are “stabilized.”

Changing Positions

In August 2004, Amsel’s position was identified as one of four in the IT

department facing a threat of outsourcing. As a result of the additional stress

this caused, Amsel sought treatment from his primary care physician, Dr. Ace

Alsup, who recommended that Amsel be provided a job with reduced stress and

a flexible work schedule that would allow him to continue telecommuting.

Amsel met with then Human Resources Director Robert Ruiz (“Ruiz”)

about Dr. Alsup’s recommendation. In turn, Ruiz approached Lisa Glenn

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(“Glenn”), then director of Administration at TWDB, about creating a new

position for Amsel. Glenn determined that Amsel qualified to fill a back-up role

to a TWDB employee in another department.

In a memo dated November 9, 2005, Ruiz offered this position to Amsel

while expressing concern about Amsel’s health and suggesting that Amsel may

want to apply for disability benefits instead. In support of this recommendation,

Ruiz cited Dr. Alsup’s analysis of Amsel’s condition: “Andrew has severe

inoperable coronary artery disease and has had increasing frequency of his chest

pain despite aggressive medical management. His condition is such that he

could have an acute cardiac event at any time. His short and long-term

prognosis is fairly poor.” Ruiz also pointed out that the new position would

“require regular office work hours,” supervisor schedule approval, and that

telecommuting would not be an option at that time. Amsel had repeatedly

expressed a desire to continue working, despite his health conditions. Thus, he

accepted the position.

Amsel alleges that even after he changed positions, TWDB left him on the

outsourcing list, and required him to move his office four times in a twelve

month period. Amsel also says that in March 2006, Glenn required him to work

eight hours in the office, rather than the eight hours total that he was previously

allowed in the IT department.

TWDB contends, however, that Amsel was only required to confirm the

hours he would be in the office because his job was customer service-based and

the team needed schedule consistency to serve its client-base. Amsel was still

allowed to telecommute so long as his supervisor, Carla Daws (“Daws”)

approved. TWDB also provides an e-mail where Amsel responded to his new

work requirements with approval, stating, “I enjoyed our conversation very

much today. It made me feel very good about our working together in the future.

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I intend to be an important asset to our team.” Amsel’s telecommuting was

ultimately reduced from about two hours a day to one hour a day.

Amsel’s FMLA History

On May 30, 2006, Amsel was granted FMLA leave due to bronchitis.

Amsel took intermittent leave between May 2006 and April 2007, and exhausted

all leave associated with his May 2006 FMLA leave event on April 25, 2007.

In January 2007, after exhausting all his domestic medical options, Amsel

traveled to Thailand to receive cardiac stem-cell treatment. Amsel took leave,

relying on the FMLA leave associated with his May 30, 2006, bronchitis event.

Upon Amsel’s return in March 2007, he was unable to return to work but

requested assignments he could perform from home or the ability to transition

back part-time. TWDB did not provide Amsel with these opportunities because

Amsel was on sick leave and not expected to work.

On April 11, 2007, Dr. Alsup submitted another FMLA application to

TWDB and indicated that Amsel was “unable to work at all” under his present

condition. Amsel, however, was ineligible for additional FMLA leave because he

had not worked 1250 hours in the previous calendar year. TWDB thus awarded

Amsel 720 hours from the sick-leave pool. Despite TWDB’s grant of sick-pool

leave, Amsel made inquiries to TWDB about his FMLA leave status in April and

June of 2007.

Elimination of Amsel’s Position

On June 6, 2007, Amsel told Daws, his supervisor, that he was still

interested in working from home, but that his situation was unchanged and he

was not released to work. That same month, Glenn was informed of pending

budget cuts by TWDB’s Budget Director. Based on that shortfall, and a

subsequent budget analysis, Glenn determined that two positions needed to be

eliminated. She selected a vacant position as one and Amsel’s position as the

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other. On July 3, 2007, Glenn sent Amsel a letter notifying him that his

position was being eliminated, effective August 31, 2007. Amsel applied, and

was approved, for disability benefits to become effective on the date of his

termination.

Amsel later sued TWDB for, inter alia, disability discrimination and

FMLA retaliation. On referral by the district court, the Magistrate Judge issued

a Report and Recommendation to grant TWDB’s motion for summary judgment.

The district court affirmed the Magistrate’s report and rendered final summary

judgment in favor of TWDB on all claims. Amsel timely appealed.

II. STANDARD OF REVIEW

“We review a district court’s grant of summary judgment de novo, applying

the same standards as the district court.” Noble Energy Inc. v. Bituminous Cas.

Co., 529 F.3d 642, 645 (5th Cir. 2008). Summary judgment is thus proper when

“there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.” FED. R. CIV. P. 56(a). “Where the record taken

as a whole could not lead a rational trier of fact to find for the nonmoving party,

there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986) (citation and internal quotation marks omitted).

“Doubts are to be resolved in favor of the nonmoving party, and any reasonable

inferences are to be drawn in favor of that party.” Gowesky v. Singing River

Hosp. Sys., 321 F.3d 503, 507 (5th Cir. 2003) (citation omitted).

III. DISCUSSION

On appeal, Amsel’s only remaining claims are based on disability

discrimination under the ADA and Rehabilitation Act, and retaliatory discharge

in violation of the FMLA.

A. Amsel’s Disability Discrimination Claim

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Both the ADA, 42 U.S.C. § 12112(a), and the Rehabilitation Act, 29 U.S.C.

§ 794(a), prohibit discrimination on the basis of an employee’s disability. The

Rehabilitation Act adopts the standards used in determining claims under the

ADA. 29 U.S.C. § 794(d); see Soledad v. U.S. Dep’t of Treasury, 304 F.3d 500,

503-04 (5th Cir. 2002).1

To sustain a claim for disability discrimination, Amsel must provide

evidence sufficient to make out a prima facie case. The ADA makes it unlawful

for an employer to “discriminate against a qualified individual on the basis of

disability in regard to job application procedures, . . . discharge of employees, . . .

and other terms, conditions, and privileges of employment.” 42 U.S.C. §

12112(a).2 To make out his prima facie case, Amsel must therefore show that he:

(1) suffers from a disability; (2) was qualified for the job; (3) was subject to an

adverse employment action; and (4) was replaced by a non-disabled person or

was treated less favorably than non-disabled employees. See, e.g., Daigle v.

Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).

We respect Amsel’s desire to work despite his disability. However, we

conclude that he has not raised a material fact issue as to whether or not he was

1

We pause briefly to note that Board of Trustees of the University of Alabama v.

Garrett, 531 U.S. 356, 363-64 (2001), immunizes TWDB from suit under the ADA for money

damages. The district court ruled, however, that this bar does not prevent Amsel from suing

for prospective relief—reinstatement—under Ex Parte Young, 209 U.S. 123 (1908). The

district court also authorized Amsel to pursue all remedies authorized by law under the

Rehabilitation Act. We need not address the propriety of this ruling because Amsel fails to

establish a prima facie case of disability discrimination under the ADA or Rehabilitation Act.

2

The current version of the ADA incorporates the ADA Amendments Act of 2008

(“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008). The ADAAA, however, only applies

to claims arising on or after January 1, 2009, and thus does not apply to Amsel’s claim. See,

e.g., Carmona v. Sw. Airlines Co., 604 F.3d 848, 856-57 (5th Cir. 2010). Many of the cases

cited in this discussion will be superseded in whole or in part as applied to cases arising under

the new law, but they are applicable here.

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a “qualified individual” at the time of his discharge; thus, he cannot meet the

second element of his prima facie case.3

“Qualified Individual”

An individual is qualified under the ADA if, with or without reasonable

accommodation, the person can perform the essential functions of the position.

42 U.S.C. § 12111(8); Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468,

477 n.32 (5th Cir. 2006).

Amsel admirably worked at TWDB for ten years without any kind of

reprimand or a hint of evidence that he was unqualified to perform his duties.

Amsel’s medical documentation further supports his ability to work with

reasonable accommodation through most of 2006. TWDB provided various

accommodations throughout his tenure, allowing Amsel to telecommute,

providing a flexible work schedule, and creating a new position for him when

stress exacerbated his conditions. Despite his health problems during this time

period, Amsel was undoubtedly a “qualified” individual under the ADA at that

time. Amsel’s problems, however, took a turn for the worse toward the end of

2006 and through the first half of 2007. The evidence undisputedly reflects that

Amsel was completely unable to come to work at the time of the adverse

employment action. Indeed, though his e-mails to TWDB expressed a desire to

work from home, Amsel himself clearly indicated that he was not cleared to

work.

Amsel was only “qualified” if he could do the job with reasonable

accommodation. Amsel, however, was not able to come to work and had not been

in the office for months at the time of his discharge. Indefinite leave is not a

reasonable accommodation. See, e.g., Carmona, 604 F.3d at 860 n.3; Rogers v.

3

We may affirm based on any grounds supported by the record. See Lifecare Hosps.,

Inc. v. Health Plus of La., Inc., 418 F.3d 436, 439 (5th Cir. 2005).

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Int’l Marine Terminals, Inc., 87 F.3d 755, 759-60 (5th Cir. 1996) (“Nothing in the

text of the reasonable accommodation provision requires an employer to wait an

indefinite period for an accommodation to achieve its intended effect.” (citation

omitted)).

Amsel focuses on his qualifications during his overall tenure. However,

the question here is whether he was qualified at the time his position was

eliminated. At that point in time, Amsel had not been to work for five months,

his FMLA leave had been exhausted, and he gave TWDB no indication of when

he would again be cleared to return to work. Although he may have desired to

work from home, he submitted nothing to TWDB showing his ability to work,

from home or elsewhere. Furthermore, TWDB has consistently required at least

some in-office time, and Amsel does not dispute the necessity of in-office time for

purposes of customer service and team work. “Team work under supervision

generally cannot be performed at home without a substantial reduction in the

quality of the employee’s performance.” Hypes v. First Commerce Corp., 134

F.3d 721, 727 (5th Cir. 1998) (per curiam) (citation and quotation marks

omitted); see also Carmona, 604 F.3d at 859 (“Regular attendance is a necessary

qualification for most jobs.”). The undisputed summary judgment evidence

shows that Amsel was not “qualified” for his job at the time of his dismissal

because he could not perform the job’s essential functions.

Because Amsel was not a “qualified individual” with a disability, he cannot

establish a prima facie case of disability discrimination under the ADA or the

Rehabilitation Act. We thus need not address the other prima facie elements,

or the McDonnell Douglas burden-shifting analysis.4

4

When the plaintiff’s claim is based on circumstantial evidence of discrimination, this

court applies the McDonnell Douglas burden-shifting framework. See McInnis v. Alamo Cmty.

Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000). If the plaintiff makes out a prima facie case, the

burden shifts to the employer to produce evidence of a nondiscriminatory reason for the

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B. Amsel’s FMLA Claim

The FMLA makes it unlawful for employers to “interfere with, restrain,

or deny the exercise of or the attempt to exercise, any right provided under” the

Act. 29 U.S.C. § 2615(a)(1). The FMLA also prohibits employers from

“discharg[ing] or in any other manner discriminat[ing] against any individual”

for exercising FMLA-protected rights. Id. § 2615(a)(2). Amsel’s only FMLA

claim on appeal is a proscriptive one: that TWDB retaliated against Amsel for

his exercise of a right protected under the Act.5

To survive summary judgment on an FMLA retaliation claim, Amsel must

establish a prima facie case by showing: (1) he was protected under the FMLA;

(2) he suffered an adverse employment action; and (3) there was a causal

connection between the protected activity and the discharge. See, e.g.,

Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 332 (5th Cir. 2005) (citing

Hunt, 277 F.3d at 768).6

employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). If such

evidence is proffered, the burden of production shifts back to the plaintiff to show by a

preponderance of the evidence that the nondiscriminatory justification was mere pretext for

discrimination. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

5

“There is no significant difference between [a retaliation claim] under the FMLA and

similar claims under other anti-discrimination laws.” Hunt v. Rapides Healthcare Sys., LLC,

277 F.3d 757, 768 (5th Cir. 2001) (citation omitted), abrogated on other grounds by Burlington

N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).

6

Similar to claims under the ADA, if a plaintiff has established a prima facie case and

is relying on circumstantial evidence of discrimination, the burden shifts to the defendant to

proffer legitimate, non-retaliatory reasons for its adverse employment action. See Richardson,

434 F.3d at 333. If the defendant proffers a legitimate reason, the burden shifts back to the

plaintiff to show that the employer’s articulated reason is a pretext for retaliation or that,

while true, it is coupled with a retaliatory motive. Id. at 332-33. In the event the employee

can show that discrimination was at least a motivating factor in the employment decision, the

burden shifts back to the employer to prove it would have taken the same action despite the

discriminatory animus. Id. at 333.

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There is no dispute that Amsel suffered an adverse employment action.

For this reason, we only discuss the first and third prongs of his prima facie case.

As to Amsel’s protected activity, the district court aptly concluded—and the

parties do not dispute on appeal—that Amsel was no longer eligible for FMLA

coverage at the time of his discharge. See 29 U.S.C. §§ 2611-12. The FMLA’s

proscriptive protections, however, encompass “the employer’s conduct both

during and after the employee’s FMLA leave.” Hunt, 277 F.3d at 768-69. This

is in accord with Department of Labor regulations that restrict an employer from

retaliating against an employee upon return from extended FMLA leave. See 29

C.F.R. § 825.220(c) (2012). For this reason, Amsel’s past use of FMLA leave is

protected activity sufficient to surpass the first prima facie element even though

Amsel was not an “eligible employee,” 29 U.S.C. § 2611(2), at the time of his

discharge.7

We then turn to causation. The causal inquiry only looks to whether the

employer retaliated against Amsel for his FMLA-protected conduct. As stated,

the only protected activity at issue here is Amsel’s FMLA leave, which ended on

April 25, 2007, more than two months prior to his dismissal. While this time

period is short, it is not, by itself, enough to show a causal connection based upon

temporal proximity alone. See, e.g., Clark Cnty. Sch. Dist. v. Breeden, 532 U.S.

268, 273 (2001) (requiring “very close” proximity). Though the relevant time

7

We disagree with the district court’s conclusion that Amsel’s later inquiries about

FMLA leave were themselves protected activity. It is undisputed that he was not eligible for

further leave at the time he inquired. See Walker v. Elmore Cnty. Bd of Educ., 379 F.3d 1249,

1253 (11th Cir. 2004) (“There can be no doubt that the request—made by an ineligible

employee for leave that would begin when she would still have been ineligible—is not

protected by the FMLA.”); see also Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383-84 (5th

Cir. 1998) (concluding that the first prima facie prong of an FMLA retaliation claim was not

met where an employer granted FMLA leave in error, and subsequently discharged the

plaintiff). Amsel’s June inquiries were made when Amsel was ineligible for FMLA leave and

thus are not protected under the Act.

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frame for what is considered “very close” varies,8 the circumstances here do not

indicate a causal relationship between Amsel’s FMLA leave and his discharge.

Moreover, we have observed that timing alone “will not always be enough

for a prima facie case.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 n.3

(5th Cir. 1997). Amsel is required to raise a fact question showing that the

protected activity was not “wholly unrelated” to his discharge. Medina v.

Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). The record, however,

provides no support linking Amsel’s discharge to his FMLA-protected activity.

The evidence is actually to the contrary. In the face of Amsel’s exhausted FMLA

leave, TWDB provided Amsel 720 hours of extended sick-pool leave and 26 hours

of emergency leave. These undisputed facts do not support a conclusion of

retaliatory animus.9

Amsel’s ultimate contention, then, comes down to the speculative

argument that TWDB dismissed Amsel because it knew he was disabled and

would likely continue to request FMLA leave. Such speculation does not support

a causal inference. See, e.g., Mauder v. Metro. Transit Auth., 446 F.3d 574, 584

(5th Cir. 2006) (discounting plaintiff’s conclusory allegations). Because Amsel

fails to establish a causal connection between his adverse employment action

8

“The cases that accept mere temporal proximity between an employer’s knowledge of

protected activity and an adverse employment action as sufficient evidence of causality to

establish a prima facie case uniformly hold that the temporal proximity must be ‘very close.’”

Breeden, 532 U.S. at 273 (quoting Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir.

2001), and citing Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (3-month period

insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75 (7th Cir. 1992) (4-month period

insufficient)). But see Richard v. Cingular Wireless LLC, 233 F. App’x 334, 338 (5th Cir. 2007)

(unpublished) (finding a two and a half month temporal disparity sufficient to support a causal

connection).

9

Amsel’s unsupported allegations that TWDB moved his cubicle and maintained his

position on the IT outsourcing list refer to events that occurred before Amsel sought FMLA

leave. It thus strains logic to presume that TWDB evinced a retaliatory motive against Amsel

for FMLA rights he had not yet exercised.

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and his protected FMLA leave, he cannot establish a prima facie case of FMLA

retaliation, and we need not address the McDonnell Douglas burden-shifting

analysis.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s grant of

summary judgment in favor of Defendants-Appellees.

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