Return to Selected Americans With Disabilities Act/504 Cases Court's Index

E.E.O.C. v. E.I. Du Pont de Nemours & Co., --- F.3d --- (3/2007) E.I. DuPont de Nemours and Company (“DuPont”) appeals the partial grant of summary judgment to the EEOC and its refusal to alter the judgment following a jury verdict awarding Laura Barrios backpay, frontpay, and punitive damages for violations of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101    et seq. DuPont argues that Barrios was not disabled under the ADA, that it did not “regard her” as disabled, that she could not   perform an essential function of her job, and that the awards of punitive damages and front- and backpay were inappropriate. Finding only the frontpay award to be infirm, we AFFIRM in part and REVERSE in part.

E.E.O.C. v. Jefferson Dental Clinics, PA, --- F.3d --- (2/2007) This court holds that the EEOC serves a public interest sufficiently independent of the charging parties to avoid a finding of privity under Texas law when it seeks injunctive and equitable relief. In seeking damages and any other make-whole relief, the EEOC’s interests are not sufficiently independent to avoid being in privity with the charging parties.

Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468 (1/2006) Zamora decided not to hire Rodriguez based on her general beliefs (and misconceptions) about the risks Rodriguez posed as an allegedly uncontrolled diabetic. Finally, ConAgra cannot escape its obligation to evaluate Rodriguez's actual abilities, notwithstanding his diabetes, by blindly relying on the assessment of Dr. Morris.  the mere obtaining of such an opinion does not automatically absolve the employer from liability under the ADA." The employer has an obligation to ensure that its applicants are treated as individuals; "[t]hus, an employer cannot slavishly defer to a physician's opinion without first pausing to assess the objective reasonableness of the physician's conclusions."For the foregoing reasons, we reverse the district court's grant of ConAgra's motion for summary judgment and that court's denial of Rodriguez's motion. Further, we grant Rodriguez's motion for partial summary judgment, holding as a matter of law that ConAgra discriminated against Rodriguez under the TCHRA; and we remand this case to the district court for a determination of the quantum of Rodriguez's damages.

Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448 (11/2005) Two hearing impaired students at Louisiana Tech University ("the University"), Wendy Renee Bennett-Nelson and Joy Marie Boykin ("the appellants"), brought this action under Title II of the Americans with Disabilities Act of 1990 ("ADA") and § 504 of the Rehabilitation Act of 1973. The appellants alleged that the University denied them equal access to education by failing to provide educational aids and services, such as sign language interpreters and note takers, in a timely and effective manner. The district court dismissed the appellants’ claims, holding that they were barred by the immunity from suit in the federal courts granted to Louisiana by the Eleventh Amendment.On appeal, the appellants contend (1) that the University has waived its immunity from suit under § 504 of the Rehabilitation Act by accepting federal funding; and (2) that Congress has validly abrogated Eleventh Amendment immunity from suit under Title II of the ADA. We agree that the University, as a recipient of federal financial assistance, has waived its Eleventh Amendment immunity. We therefore need not go further to address the abrogation issue. Accordingly, we REVERSE and REMAND for further proceedings.

Cutrera v. Board of Sup'rs of Louisiana State University, 429 F.3d 108 (10/2005) An employer may not stymie the interactive process of identifying a reasonable accommodation for an employee's disability by preemptively terminating the employee before an accommodation can be considered or recommended. In this case, Callier's awareness of Cutrera's meeting with a rehabilitation counselor and her intention to return to work triggered the LSU Foundation's obligation to participate in an interactive process with Cutrera to identify a reasonable accommodation for Cutrera's disability. Reviewing these facts, and all inferences drawn from those facts, in the light most favorable to Appellant Cutrera, we conclude that summary judgment for Appellees based on the argument that Cutrera failed to request an accommodation would be inappropriate. we conclude that Appellant has raised a genuine question of material fact regarding her disability status under the ADA and remand her ADA claim to the District Court for further proceedings.

Marino v. Dillard's, Inc., 413 F.3d 530 (6/2005) Plaintiff sued under ADA ignoring arbitration agreement with employer. Louisiana state courts recognize that contract law does not require written acceptance of an arbitration agreement. Marino contends that even if written acceptance of an agreement to arbitrate is not required under Louisiana state law, the district court's judgment should be affirmed on the alternative ground that the arbitration documents are ambiguous. We disagree. In May v. Higbee Co., we found that arbitration documents identical to those here were unambiguous. 372 F.3d 757, 764 (5th Cir. 2004). As in May, the Acknowledgment Form here is clear in advising Marino of the new Rules of Arbitration and of the means of consent, i.e., Marino's continued employment with Dillard's.

Meyers ex rel. Benzing v. Texas, 410 F.3d 236 (5/2005) having decided the determinative issue of thisappeal——that the federal district court has subject matter jurisdiction because Texas waived its immunity from suit by removal of this case to federal court——we will not address Texas's remaining arguments, which pertain to its defenses on the merits of the case, not raised below and prematurely presented here, viz., that the five dollar fee does not violate the statute or the regulation; that the regulation is invalid under Chevron; and that ADA Title II and the regulation are not authorized by the Commerce Clause, as limited by the Tenth Amendment. These matters may or may not contribute relevantly to Texas's defenses on the merits of the case, but they can have no bearing or effect on our determination that the federal district court has subject matter jurisdiction over this case. For these reasons, the judgment of the district court is reversed, and the case is remanded for further proceedings consistent with this opinion. We do not determine and the state is not precluded from pursuing a claim that it is immune from liability under principles of Texas sovereign immunity law, separate and apart from its waiver of its immunity from suit in federal court in this case.

Pace v. Bogalusa City School Bd., 403 F.3d 272 (3/2005) We took this case en banc, first to consider whether the state defendants were entitled to immunity from Pace's claims under the Eleventh Amendment and, second, to consider the merits of Pace's claims under the IDEA, ADA and § 504. For the reasons discussed below, we now conclude that the State waived its right to immunity under the Eleventh Amendment and therefore the State defendants are not entitled to immunity from Pace's § 504 and IDEA claims. On the merits, we conclude that the district court did not err in dismissing Pace's IDEA claims and that the district court correctly concluded that the dismissal of Pace's IDEA claims precluded his inaccessibility claims under the ADA and § 504. We reject Pace's argument that because different legal standards control his inaccessibility claims under ADA/504, those claims were not litigated in his IDEA action. A 1997 amendment and implementing regulations to the IDEA expressly require schools to comply with the identical standards for new construction that ADA/504 and their regulations require.

Melton v. Dallas Area Rapid Transit, 391 F.3d 669 (11/2004) Between 1992 and early 1999, Dallas Area Rapid Transit's paratransit service picked up the disabled Jason Melton in the alley directly behind his house. Dallas Area Rapid Transit ("DART") discontinued this practice in early 1999, citing safety concerns. Since 1999, DART has picked up Jason where the alley meets the street, approximately one block away from the house.Plaintiffs-appellants Roger and Sue Melton, as next friends of their disabled adult son Jason Melton, and Advocacy, Incorporated (collectively the "Meltons") seek an injunction requiring defendant-appellee DART to make "reasonable modification" to its paratransit services to require alley pick-up for Jason, contending that the failure to modify its plan is in violation of title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12131, et. seq., and section 504 of the Rehabilitation Act, 29 U.S.C. §§ 794, et. seq.. We hold that DART is not required by the ADA or the Rehabilitation Act to make reasonable modification to its paratransit services. This holding means that the Meltons have failed to establish a prima facie case of discrimination under either the ADA or the Rehabilitation Act, and we thus affirm the judgment of the district court.

Brennan v. Mercedes Benz USA 388 F.3d 133 (10/2004) Plaintiff John Brennan appeals a summary judgment in favor of defendants Mercedes Benz USA ("Mercedes") and United Technical Institute of Texas, Inc. ("UTI"). The district court dismissed Brennan's claim of employment discrimination under title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112-12117, because Brennan could not prove "the requisite employer-employee relationship to have standing to sue" under the ADA. Brennan further appeals the summary judgment on his claim of intentional infliction of emotional distress with respect to which the district court found that Brennan could not demonstrate the necessary conduct. Agreeing with both determinations, we affirm.

McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407 (8/2004) Plaintiffs sued several Texas state officials, asserting violations of the Medicaid statute, the Americans with Disabilities Act, and the Rehabilitation Act. Relying in part on state-sovereign immunity, Defendants moved the district court to dismiss Plaintiffs' claims. The district court denied Defendants' motion in part, concluding that the doctrine of Ex parte Young, 209 U.S. 123 (1908), provided jurisdiction over this official-capacity suit seeking prospective relief against state officers. Disappointed, Defendants filed this interlocutory appeal, seeking to vindicate their Eleventh Amendment immunity from suit. We agree with the district court that state officers, sued in their official capacities for prospective relief, are proper defendants under Title II of the Americans with Disabilities Act and are not immune under the Eleventh Amendment. Further, we hold that Defendants' other contentions on appeal relate to the merits of this controversy, not the Eleventh Amendment; therefore, these arguments are beyond the scope of this interlocutory appeal. We affirm.

Pegram v. Honeywell, Inc., 361 F.3d 272 (3/2004) Due to his back condition, Pegram contends that he is impaired in climbing stairs, walking, standing for longer than five minutes, sitting for longer than five minutes, with balance, and pain. Honeywell concedes that Pegram suffers from an "impairment" as defined under the TCHRA. Honeywell, however, counters that Pegram's "impairment" did not interfere with his ability to perform at least one major life activity, and therefore is not legally redressable. We agree with Honeywell.

Spector v. Norwegian Cruise Line Ltd., 356 F.3d 641 (1/ 2004) Foreign-flagged cruise ships are not subject to Title III of the ADA unless and until Congress clearly expresses its intention to do so. We therefore sustain, albeit on different grounds, the district court's dismissal of the disabled plaintiffs' barrier removal claims. However, we reverse the district court to the extent that any Title III ADA claims remained, including those of the non-disabled plaintiffs, and remand for further proceedings consistent herewith.

Martin v. Alamo Community College Dist., 353 F.3d 409 (12/2003) Robin Martin ("Martin") appeals the district court's dismissal of her claim as time barred. Alamo Community College District ("Alamo") cross-appeals the district court's denial of Eleventh Amendment immunity and attorney's fees. We REVERSE the district court's dismissal of Martin's claim as time barred and DISMISS Alamo's appeal of the district court's denial of its claim of Eleventh Amendment immunity.

Johnson v. Louisiana Dept. of Educ., 330 F.3d 362 (5/2003) "Believing that the acts validly abrogated their sovereign immunity, the [appellants] did not and could not know that they retained any sovereign immunity to waive by accepting conditioned federal funds." Pace, 2003 WL 1455194, at *5.5 Because the appellants could not have knowingly waived their sovereign immunity during the period covered by their lawsuits, Johnson's and August's individual claims for money damages under § 504 are barred.

Miller v. Texas Tech University Health Sciences Center,330 F.3d 691 (5/2003) Tech concedes that King Miller suffers a "disability" as defined in § 504 and that Tech received federal funds from 1998 to 2000. Nevertheless, Tech moved to dismiss on the basis of state sovereign immunity. The district court denied the motion, and Tech filed this interlocutory appeal. Reversed

Fuzy v. S & B Engineers & Constructors, Ltd., 332 F.3d 301 (5/2003) As Fuzy concedes that he is not disabled, he has no standing to sue under § 12112(b). This leaves Fuzy with only the argument that he may sue under §12112(d) despite the fact that he is not disabled. As to this argument, Fuzy is correct in noting that the Tenth Circuit has recognized that a non-disabled person may still maintain a cause of action under § 12112(d). Under §12112(d)(4)(A) and (B), an employer may inquire and make medical examinations if they are shown to be job-related and consistent with business necessity. Therefore, even if this Court assumes, without deciding, that a person who is not disabled may assert a claim against an employer or prospective employer for noncompliance with particular provisions of § 12112, we must still affirm the district court's dismissal because Fuzy has not raised a genuine issue of material fact that the weight lifting test was not a job related function as to the pipefitting job for which he sought employment. The district court's grant of summary judgment is therefore AFFIRMED.

Waldrip v. General Elec. Co., 325 F.3d 652 (3/2003) Waldrip has not satisfied his burden to create a genuine issue of material fact that GE misperceived his impairment as substantially limiting. See Deas v. River West, L.P., 152 F.3d 471, 482 (5th Cir. 1998). To the contrary, he routinely took sick leave, without objection from GE, when his chronic pancreatitis became especially painful. GE became worried only once it learned that Waldrip was potentially taking central nervous system depressants while operating heavy machinery.  reasonable jury could conclude that Waldrip's chronic pancreatitis "substantially limits" his ability to eat or, therefore, that he has a b"disability" under § 12102(2)(A). Waldrip argues finally that GE paid him disability benefits and therefore must have regarded him as disabled. Yet, GE paid those bbenefits only after Waldrip alleges he was fired. Thus, it could not have regarded him as disabled on this basis before allegedly firing him. Moreover, in his application for benefits, Waldrip denied being disabled. The summary judgment is AFFIRMED.

Gowesky v. Singing River Hosp. Systems, 321 F.3d 503, (2/2003) This is an appeal from the district court's grant of summary judgment to defendant Singing River Hospital Systems ("Singing River") on plaintiff Brenda A. Gowesky's ("Gowesky") ADA claims for disability-based workplace harassment and employment discrimination. 42 U.S.C. § 12112(a); see also Flowers v. S. Reg'l Physician Servs., 247 F.3d 229 (5th Cir. 2001). Gowesky has not created a material fact issue concerning whether she was "regarded as disabled" by her employer after undergoing successful treatment for hepatitis C infection; nor has she surmounted the evidentiary burden concerning disability-based harassment or an adverse employment decision. We affirm the summary judgment.

U.S. v. Mississippi Dept. of Public Safety, 321 F.3d 495, (2/2003)  Plaintiff-Appellant United States of America appeals the order entered by the District Court for the Southern District of Mississippi dismissing the United States' civil action against Defendant-Appellee Mississippi Department of Public Safety for alleged violations of the Americans with Disabilities Act on the grounds that the suit was barred by the Eleventh Amendment. We reverse the district court's decision and remand for further proceedings. Congress rationally concluded that regulation of employment discrimination was necessary to regulate the national market of employment. It is not necessary to "pile inference upon inference" to see the effect of such discrimination on interstate commerce. Lopez, 514 U.S. at 567. Unlike the statutes at issue in Morrison and Lopez, the ADA's regulation of employment is a permissible exercise of Congress' powers under the Commerce Clause.

Blanks v. Southwestern Bell Communications, Inc. 310 F.3d 398 11/2002 Appellant, who is HIV positive, alleges that his former employer, Southwestern Bell ("SWB"), failed to accommodate him as required by the Americans with Disabilities Act of 1990 ("ADA"). 42 U.S.C. § 12101 ,Italic">et seq. Appellant further alleges that appellee constructively discharged him from the company. The district court found that, viewing the evidence in the light most favorable to the appellant, there was no triable issue of fact to show: (1) that appellant's HIV status qualified him as disabled under the ADA; (2) that appellee failed to offer appellant reasonable accommodation; or (3) that appellee constructively discharged appellant. Because we conclude Blanks was not a qualified individual with a disability for purposes of the ADA, we affirm.

Soledad v. U.S. Dept of Treasury, 304 F.3d 500 (9/2002)  The jury returned a verdict in favor of Soledad concluding that he was discriminated against "because of" his disability. The jury could also have made the further conclusion that he was discriminated "solely because of" his disability. While we question whether the evidence was sufficient for a jury to conclude that Soledad was discriminated against "solely because of" his disability, Appellees have not persuaded us that there was an absolute absence of evidence supporting the jury's finding. We therefore reverse the district court's grant of the Treasury Department's Rule 50 motion and remand for further proceedings consistent with this opinion.  The district court correctly found that the acts complained of were not sufficiently pervasive or severe. As we said in Flowers, "the disability-based harassment must ‘be sufficiently pervasive or severe to alter the conditions of employment and create an abusive working environment.'" 247 F.3d at 236 (quoting McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 563 (5th Cir. 1998)). The record convinces us that the facts clearly demonstrate that Fuentes' acts were not sufficiently pervasive or severe.9 We therefore find no error in the district court's grant of judgment as a matter of law on the Rehabilitation Act hostile work environment claim.

Delano-Pyle v. Victoria County, Tex. 302 F.3d 567 (9/2002)  There is no "deliberate indifference" standard applicable to public entities for purposes of the ADA or the RA. However, in order to receive compensatory damages for violations of the Acts, a plaintiff must show intentional discrimination. Carter, 725 F.2d at 264. The facts addressed at trial support the jury's finding of intentional discrimination.

Kapche v. City of San Antonio, 304 F.3d 493 (8/2002)  For the reasons stated above, we hold that an individualized assessment of Kapche's present ability to safely perform the essential functions of an SAPD police officer is required. We again VACATE the district court's grant of the City's motions for summary judgment and the denial of Kapche's motions for summary judgment. In accordance with the mandate of Kapche I, we REMAND the action for the district court to determine whether, under an individualized assessment, Kapche could perform the essential functions of an SAPD police officer.

Mason v. United Air Lines, Inc., 274 F.3d 314 (12/2001)  Because of his lower back injury Mason's ability to perform physical work was greatly limited. The job in Dallas required that he be able to perform certain tasks, including lifting, pushing, and pulling weight above his physical limitations. United correctly concluded, based on his medical history, that Mason could not perform the job of Customer Service Representative in Dallas. There is no evidence that Mason was not qualified for a broad range of other jobs that did not require the manipulation of weighty objects, or that United incorrectly made broad generalizations regarding his impairments. Rather, the record reflects that United encouraged Mason to apply for alternative positions in Dallas and elsewhere.

Aldrup v. Caldera, 274 F.3d 282 (12/2001)  In granting defendant's motion for summary judgment, the district court determined that Aldrup had failed to offer evidence that he was substantially limited in the life activity of working and that he had failed to create a fact issue that the defendant's proffered reason for his removal was pretextual.  Aldrup also asserts that he was "regarded as" disabled by defendant. An individual is "regarded as" disabled when a covered entity mistakenly believes that: (1) a person has a physical impairment that substantially limits one or more major life activities; or (2) an actual, non-limiting impairment substantially limits one or more major life activities.⁽²²⁾ In both situations, the covered entity must entertain some misperception regarding the individual-either that he has a substantially limiting impairment that he does not have or the impairment is not so limiting as believed.⁽²³⁾ Aldrup has presented no evidence whatsoever to base the slightest inference that defendant believed he was disabled.

Holtzclawv. DSC Communications Corp., 255 F.3d 254 (7/2001)  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.

Flowers v. Southern Regional Physician Services, Inc., 247 F.3d 229 (3/2001)  As the record makes clear, daily harassment towards an HIV-positive individual such as Flowers may not only affect that individual emotionally, but may also cause a decline in the health of that individual, resulting in a particularized physical consequence. Dr. Osterberger, Flowers's personal physician at the time of her employment with Southern Regional, provided general testimony regarding the effects of stress on a person with HIV and stated that such stress "can" aggravate HIV; however, this general testimony did not connect the possible effects of such stress with a particular injury to Flowers. Dr. Osterberger did not testify that Flowers suffered injury, but only stated that it was possible for HIV-positive individuals to suffer injury. Moreover, there is no testimony that Flowers's health deteriorated during the period of time between Hallmark's discovery of Flowers's HIV-positive condition and Flowers's termination from Southern Regional.    Because there is no evidence in the record focusing on the existence of actual injury during the time period before Flowers was discharged, we must vacate the jury's award of damages.  For the foregoing reasons, we AFFIRM the final judgment entered on the jury verdict as to Southern Regional's liability for disability-based harassment. However, we VACATE the jury's damages award and REMAND the case for the entry of an award of nominal damages.

Giles v. General Elec. Co., 245 F.d 474 (3/2001)    This appeal arises out of a disability discrimination suit filed by Charles Giles against General Electric Company ("GE"), which appeals the denial of its motion for judgment as a matter of law ("j.m.l.") following a verdict in favor of Giles. GE further appeals the award of attorneys' fees. Giles cross-appeals the quantum of damages and the dismissal of his retaliation claim under state law. The jury's compensatory award is excessive, even as limited by § 1981a(b)(3). We therefore offer the plaintiff a remittitur of $150,000 in compensatory damages or a new trial on compensatory damages alone. In all other respects, we affirm the judgment.

Dupre v. Charter Behavioral Health Systems of Lafayette Inc., 242 F.3d 610 (2/2001) Our holding that Dupre was not disabled is determinative in this case, and we therefore need not address the propriety of the district court's application of Taylor v. Principal Financial Group, 93 F.3d 144 (5^th Cir. 1996), to the present case. Since the record indicates that Dupre was not disabled, she has no cause of action under the ADA, and summary judgment for Charter was appropriate.

Dolese v. Office Depot, Inc., 231 F.3d 202 (11/2000) Summary judgment was appropriate on Dolese's ADA claims. He was not "disabled" under the meaning of the statute, and can not therefore establish the requisite prima facie case

Neinast v. Texas, 217 F.3d 275 (2000)

Lara v. Cinemark USA, Inc., 207 F.3d 783 (2000)  Defendant-Appellant Cinemark USA, Inc. challenges the district court's determinations that the Americans with Disabilities Act ("ADA") requires "stadium-style" movie theaters to offer wheelchair-bound patrons lines of sight comparable to those enjoyed by the general public and that Cinemark's theaters failed to provide such sight lines. For the reasons that follow, we hold that although the ADA does impose such a requirement, the district court erred in concluding that Cinemark failed to meet its obligations under the Act. Accordingly, we reverse the judgment of the district court

McInnis v. Alamo Community College Dist., 207 F.3d 276 (2000)  Dwain McInnis ("McInnis") appeals from the final judgment entered by the district court, Magistrate Judge Pamela Mathy presiding, which granted summary judgment to the defendant Alamo Community College District ("ACCD") on his claims brought pursuant to the Americans With Disabilities Act. The magistrate judge granted summary judgment after concluding that McInnis failed to establish a prima facie case of discrimination under the ADA since he neither was, nor was regarded as being, disabled, and alternatively that ACCD had presented a legitimate, non-discriminatory reason for terminating his employment which he failed to establish was a mere pretext for intentional discrimination. Because we find that there remain genuine issues as to the material facts in this case, we vacate the order of the magistrate judge granting summary judgment in favor of ACCD, and remand for further proceedings.

McNeill v. Time Ins. Co.,  205 F.3d 179 (2000) In this case, we are presented difficult questions of statutory interpretation that determine whether the defendant insurance company is liable for more than $400,000 in hospital bills, which the insured, now deceased, incurred as a result of his losing battle with AIDS. In addition to state statutory questions, we must decide whether the Americans with Disabilities Act's ("ADA") anti-discrimination provisions regulate the terms and content of an insurance policy. We ultimately decide that the ADA does not regulate the terms or content of goods and services, of which this insurance policy is one. We therefore affirm the district court's grant of summary judgment dismissing the complaint.

Allen v. Rapides Parish School Bd., 204 F.3d 619 (2000)  Robert D. Allen sued the Rapides Parish School Board ("Board") for discrimination under the Americans with Disabilities Act of 1990 ("ADA"). Allen asserts that the Board discriminatorily diminished his position and commensurate salary within the Rapides Parish school district because he suffered from tinnitus, a condition causing him to hear a continuous loud ringing in his ears. The Board contends that it did not discriminate against Allen and afforded him a reasonable accommodation. Because the district court correctly granted summary judgment for the Board, we affirm.

E.E.O.C. v. Exxon Corp., 203 F3d 871 (2000)  In this appeal under the Americans with Disabilities Act ("ADA"), we review the measure of a safety-based qualification standard defended as a business necessity. The EEOC moved for partial summary judgment arguing that the only defense available under the ADA when an employer imposes a safety qualification standard is for the employer to prove that the individual poses a "direct threat." The district court granted the motion. We are not persuaded by the position of the EEOC and accepted by the district court. Rather, we find that applying direct threat only in cases in which the employer imposes a special safety standard in an individual case offers a more coherent meaning of the statute and of the role of safety under it. We REVERSE

Bass v. Parkwood Hosp., 180 F.3d 234 (1999)

Ivy v. Jones, 192 F.3d 514 (1999)

Seaman v. CSPH, Inc., 179 F.3d 297 (1999)  Seaman contends that CSPH failed to accommodate his disability-engendered limitations by not providing sufficient co-employees so that he could take time off to seek medical care. Seaman challenges the district court's finding that although he had presented sufficient evidence to support the conclusion that he was a "qualified individual with a disability" within the meaning of the ADA, he failed to show that CSPH knew of his disability and his resulting limitations. Our review of the record persuades that the district court did not err in finding that Seaman failed to present sufficient evidence that he notified CSPH of his disability or any limitations resulting therefrom before his breakdown in March 1996 or after his subsequent return to work.   Assuming arguendo that CSPH knew of Seaman's disability engendered limitations, the record reflects that CSPH made sufficient efforts to accommodate Seaman's requests. Dain cooperated with Seaman and sought to grant his requests. Dain did not discipline Seaman for his unexcused absences and allowed him time off to seek medical attention once Seaman requested time off. When Seaman asked for a return to an assistant manager position, Dain and Zielinski acquiesced, allowing him two days off per week and relieving him of the obligation of wearing a pager. We have found that in cases involving mental difficulties like Seaman's, in which the resulting limitations are not obvious to the employer, an employee cannot remain silent and expect his employer to bear the burden of identifying the need for and suggesting appropriate accommodation. Because Seaman has produced no evidence that he requested any specific accommodation and that such a request was denied, his claim must fail.

Chaffin v. John H. Carter Co., Inc., 179 F.3d 316 (6/1999)  On balance, we are persuaded that Chaffin has not countered the evidence offered by Carter of its legitimate, nondiscriminatory reason for her termination

Loulseged v. Akzo Nobel Inc., 178 F.3d 731 (1999)  Loulseged--who suffered from a physical, not a mental, disability and was not fired but quit--was not presented with any statement that could be reasonably interpreted as clearly foreclosing further discussion and announcing the company expected her to perform without a reasonable accommodation. She was never asked to perform under such conditions, and made no effort to determine what conditions she could have expected to encounter when her rotation came due. Nothing was clearly final or settled. Loulseged could have simply waited a few days to see whether further proposals or discussions developed. She also could have at several points vocalized her concerns--thus participating in the informal interactive process--and in the process given Akzo a chance to correct her misperception that further discussion was futile. Instead she chose to quit. The fact that Loulseged may have unreasonably believed the process had terminated, or may have been so attached to the contract worker scheme that she was unwilling to entertain reasonable alternatives, is irrelevant. In light of these undisputed facts, no reasonable jury could find that responsibility for the failure of the process to reasonably accomodate Loulseged rested with anyone but herself. Accordingly, the district court was correct to grant judgment as a matter of law in favor of Akzo. To hold otherwise would reward Loulseged's unilateral withdrawal from a process designed for her own benefit

Zenor v. El Paso Healthcare System, Ltd., 176 F.3d 847 (1999)  Zenor presented no evidence that Columbia regarded him as limited in his ability to work in a broad range of jobs. Zenor does not argue that he was qualified for, or sought, alternative employment positions at Columbia other than as pharmacist. Nor is there any evidence that Columbia perceived Zenor as unable to perform any number of clerical, service-related, administrative, or even other medical positions within the hospital. As discussed above, Columbia maintained a policy of returning some employees to work after they had undergone addiction rehabilitation programs. Clearly, therefore, Columbia does not view all persons with drug-related problems as substantially limited in their ability to work. Here, however, Columbia felt that a recent cocaine addict was unqualified for one specific job: that of a pharmacist. Columbia was entitled to conclude that if a person is a pharmacist, cocaine addiction is not acceptable.  As Zenor presented no evidence from which a reasonable jury could conclude that Columbia perceived Zenor's addiction to substantially impair his ability to work in a broad range or class of jobs, Zenor failed to establish that he was regarded as suffering from a disability within the meaning of the ADA. Nor, for the reasons discussed above, could a reasonable jury find that Zenor was an "otherwise qualified individual" for the position of a pharmacist. Therefore, the district court correctly granted judgment as a matter of law for Columbia on Zenor's ADA claim.

Gonzales v. City of New Braunfels, Tex., 176 F.3d 834 (1999) Based on our de novo review, we conclude that there is no genuine issue of material fact as to whether the department failed to meet its reasonable accommodation obligation under the ADA. The only accommodations sought by Gonzales were retesting and reassignment to the position of evidence technician. For the foregoing reasons, neither of these alternatives are viable. Consequently, even if, as we have assumed without granting, Gonzales is "disabled" for purposes of the ADA, he is not qualified, with or without accommodation, for the position of police officer. The district court's summary judgment in favor of the City is, therefore AFFIRMED.

Kapche v. City of San Antonio, 176 F.3d 840 (1999)  Plaintiff-Appellant Jeff Kapche appeals the district court's grant of summary judgment dismissing his employment discrimination claims against the City of San Antonio on the ground that, under Fifth Circuit precedent, a driver with insulin-dependent diabetes poses a direct threat to the health and safety of others, as a matter of law. In light of changes to the federal regulations on which our precedent was partly based, as well as possible advancements in medical technology, we vacate the district court's order and remand the case for a determination of the continued viability of this per se rule.

Burch v. City of Nacogdoches, 174 F.3d 615 (1999)  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.

Rizzo v. Children's World Learning Centers, Inc., 173 F.3d 254 (1999)

E.E.O.C. v. R.J. Gallagher Co., 181 F.3d 645 (1999)

Gammage v. West Jasper School Bd. of Educ., 179 F.3d 952 (1999)  The Chancery Court concluded in its opinion that there was no merit to a claim of animus discrimination when it stated that there was no evidence that the School Board or School District had discriminated against Gammage due to her health. The court also negated Gammage's argument that the School Board and School District instituted standards that screened her out because of her disability when it determined that the deficiencies that led to her nonrenewal were unrelated to her condition.

Nero v. Industrial Molding Corp., 167 F.3d 921 (1999)

Talk v. Delta Airlines, Inc., 165 F.3d 1021 (1999).   Plaintiff suffered a childhood injury that left her right leg shorter than her left and her right foot in a permanent flexed position. She therefore has to walk on the ball of the right foot and wear a built-up shoe causing her to walk with a limp. The court found that her disability was not so severe as to affect the major life activity of walking or working and thus dismissed her employment discrimination case.

Washington v. HCA Health Services of Texas, Inc., 152 F.3d 464 (1998).  Court held plaintiff's disability should be assessed in an un-medicated rather than a medicated state. Therefore a disability should be assessed without regard to mitigating measures.

Deas v. River West, L.P., 152 F.3d 471 (1998).  Court found that seizures are not a disability per se. Plaintiff suffered several petit mal seizures in a single day at work. When plaintiff was fired her employer told her it could not find another job at the hospital where she worked that could accommodate her. Court further found that plaintiff's discharge was based on a concern for plaintiff's safety and that of the patients she would be treating in a substance abuse unit.

Pryor v. Trane Co., 138 F.3d 1024 (1998).  Plaintiff appealed a jury verdict that she was not disabled within the meaning of the ADA. The Court held that plaintiff's neck injury which prevented her from lifting a 13 pound cart was not disabling because no evidence was presented that she could not perform a wide variety of jobs. She was only not capable of performing jobs that required constant or overhead lifting. Plaintiff's employer had ultimately structured a job she could perform, and plaintiff brought suit seeking back pay for the four months she was without a job. The employer was also found not to have perceived plaintiff as disabled. There was no evidence that the employer considered plaintiff's neck injury as preventing her from performing an entire class of jobs. It merely showed that there were no jobs available that fit plaintiff's restrictions.

Hamilton v. Southwestern Bell Telephone Co., 136 F.3d 1047 (1998).  Court found that plaintiff's post traumatic stress disorder did not rise to the level of a disability because it did not limit his ability to perform a class of jobs or a broad range of jobs. Nothing in the record showed that he employer treated him as having a substantially limiting impairment. Even if plaintiff were disabled, he was fired not because of a disability but because he violated the employer's policy on workplace violence.

Coolbaugh v. State of La. on Behalf of Louisiana Dept. of Public Safety & Corr. on Behalf of Louisianna Dept. of Motor Vehicles, 136 F.3d 430 (1998).  Plaintiff, a paraplegic, moved to Louisiana from California. He had a driver's license to drive a specially equipped vehicle. He and his wife, who was not disabled, applied for driver's licenses, but only he was required to take a road test. The Court held that the 11^th Amendment did not prohibit suit under the ADA. It also held that plaintiff was not the victim of discrimination. The state's motive was not discrimination but public safety. The evidence showed plaintiff had not actually driven a vehicle since obtaining his California license and had used it only for identification purposes.

Bloom v. Bexar County, Tex., 130 F.3d 165 (1997).  Plaintiff could not maintain an ADA suit under Title I against defendant county because it was not her employer. Her actual employer was the state of Texas. The Court also dismissed plaintiff's claims under Title II holding that public accommodations does not apply to public entities including local government. Title III defines public accommodations as private entities.

Cleveland v. Policy Management Systems Corp., 120 F.3d 513 (1997).   Plaintiff was estopped from asserting she was a qualified individual with a disability under the ADA because she represented to the Social Security Administration in an application for SSDI that she was totally disabled and therefore unable to work in any job.

Lightbourn v. County of El Paso, Tex., 118 F.3d 421 (1997).  Texas Secretary of State had no duty under the ADA to ensure that local election officials comply with the ADA. 504 was inapplicable because the Secretary did not receive federal funds.

Burch v. Coca-Cola Co., 119 F.3d 305 (1997).  Plaintiff failed to establish that his alcoholism ever substantially limited a major life activity including working.

Johnson v. Gambrinus Company/Spoetzl Brewery, 116 F.3d 1052 (1997).  Brewery violated ADA by denying blind person to take public brewery tour with guide dog. Requirements of Food, Drug, and Cosmetics Act did not prevent brewery from modifying its "no animals" policy to allow guide dogs on at least portion of tour.

Robinson v. Global Marine Drilling Co., 101 F.3d 35 (1996).  Plaintiff was laid off from his job for economic reasons. Everyone else from his previous job site except plaintiff was hired back. Plaintiff claimed he was not hired back because he suffered from asbestosis in violation of the ADA. Court found plaintiff was not disabled as defined by the ADA. His condition caused him to have shortness of breath when climbing ladders. "Several instances of shortness of breath when climbing stairs do not substantially limit the major life activity of breathing." Court also stated that it was "important to note that Robison offered no medical expert testimony. The only evidence regarding his asbestosis and its effects came from plaintiff himself."

Bridges v. City of Bossier, 92 F.3d 329 (1996).  Plaintiff who suffered from hemophilia was denied employment as a firefighter. Court found this was not a violate of the ADA stating plaintiff's condition was not a substantial limitation on the activity of working in that firefighting is too narrow a field to describe a "class of jobs. Court also found hemophilia is not a disability per se.

Rogers v. International Marine Terminals, Inc. 87 F.3d 755 (1996).   Plaintiff's employment discrimination case was dismissed.   Plaintiff's ankle injuries were an impairment but were temporary and not severe enough to constitute a disability under the ADA.  There was also no evidence to support plaintiff's claim that he was discharged because of his association with his disabled wife.