Bazile v. AT&T ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11211
Summary Calendar
Jean Frantz BAZILE,
Plaintiff-Appellant,
VERSUS
AT&T-BELL LABORATORIES, INC. a/k/a AT&T MICROELECTRONICS, and
LUCENT TECHNOLOGIES, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(3:96-CV-2652-G)
April 20, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
The Plaintiff, Jean Frantz Bazile, sued the Defendant, Lucent
Technologies (“Lucent”), the successor in interest to AT&T-Bell
Laboratories, alleging, inter alia, that Lucent discriminated
against him in violation of the Americans with Disabilities Act
*
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this opinion should not be published and is not precedent except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.
(“ADA”), 42 U.S.C. § 12101. The Plaintiff appeals from an order of
the district court granting the Defendant’s Motion for Summary
Judgment. After reviewing the briefs and the relevant portions of
the record on appeal, we affirm the district court.
I.
The Plaintiff, Jean Frantz Bazile, worked as an engineer for
Lucent in its Power Systems Division from 1980 until his
termination in February, 1995. After being diagnosed with a major
depressive condition, Bazile was hospitalized in 1988 and 1989.
Bazile returned to work under outpatient care from his
psychiatrist.
In 1990, Lucent transferred Bazile to Mesquite, Texas, where
he worked under the supervision of Richard M. Hunt. Under Hunt,
Bazile was allowed to work a flexible time schedule because of
difficulties associated with insomnia. In 1991, Hal Babitch took
over as Bazile’s supervisor. Babitch informed Bazile that he would
no longer be allowed to work a flexible schedule. Bazile suffered
a relapse of depression in April 1993 and, as a result, took a
thirty-three day leave of absence. Bazile took an additional leave
of absence in March 1994. The plaintiff returned to work, but took
another extended leave of absence on June 28, 1994. Bazile
returned to work for two days in August 1994, before he went on
leave again. Bazile contends that the relapses were caused by
Babitch who refused to allow a flexible work schedule despite the
Plaintiff’s insomnia, refused to transfer Bazile to Florida,
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harassed Bazile for his absences, and wrote a poor evaluation of
Bazile which resulted in his demotion.
In September 1994, while still on leave, Bazile moved to
Florida to join his wife and children who had moved there in
August. On January 10, 1995, Bazile returned to work, but again
returned to Florida two days later. Bazile’s personal
psychiatrist, Dr. Pierre Andre, sent a letter to Lucent on January
16, 1995, indicating that Bazile was too emotionally unstable to
return to work in Texas away from his family. Lucent arranged for
an independent psychiatric examination, by Dr. Ron Kurlander, who
opined that Bazile was well enough to resume his job and that
Bazile was trying to manipulate the company to transfer him to
Florida. As a result of the independent examination, Lucent
informed Bazile by letter dated January 31, 1995, that if he failed
to return to work or fill out the necessary Family and Medical
Leave Act (“FMLA”) forms by February 6, 1995, he would be
terminated. Bazile failed to return to work or fill out the FMLA
forms by February 6th. Consequently, Lucent terminated his
employment and leave benefits. After Bazile’s termination, he
applied for and received social security disability benefits.
II.
Bazile is judicially estopped from claiming that he is a
“qualified individual with a disability.” The application for or
receipt of social security disability benefits creates a
“rebuttable presumption that the claimant or recipient of such
benefits is judicially estopped from asserting that he is a
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‘qualified individual with a disability.’” Cleveland v. Policy
Mgmt. Systems Corp., 120 F.3d 513, 518 (5th Cir. 1997). In order
to rebut the presumption of judicial estoppel, the plaintiff must
present credible, admissible evidence sufficient to show that, even
though he may be disabled for purposes of social security, he is
otherwise qualified to perform the essential functions of the job
with a reasonable accommodation. See Cleveland, 120 F.3d at 518.
Bazile has failed to create a factual dispute regarding
whether he is otherwise qualified to perform the essential
functions of his job with a reasonable accommodation. The
Plaintiff’s personal psychiatrist continues to opine that Bazile
cannot return to work. “An essential element of any . . . job is
an ability to appear for work . . . and to complete tasks within a
reasonable period of time.” Rogers v. International Marine
Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996)(quoting Carr v.
Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)). As Bazile’s doctor has
not released him to work in Texas and he is unable to return to
work for an indefinite period of time, the plaintiff cannot perform
the essential function of appearing for work.
Moreover, Bazile cannot demonstrate that Lucent could
reasonably accommodate his disability. Bazile contends that Lucent
should have made the following accommodations for his disability:
(1) additional leave time, (2) flexible work schedule, and (3)
transfer to Florida. First, allowing Bazile additional leave time
is not a reasonable accommodation. As we stated in Rogers,
“Nothing in the text of the reasonable accommodation provision
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requires an employer to wait an indefinite period for an
accommodation to achieve its intended effect. . . .[R]easonable
accommodation does not require [an employer] to wait indefinitely
for [the employee's] medical conditions to be corrected.” Id. at
760 (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995)).
Bazile worked only four days from June 28, 1994 until his
termination on February 6, 1995. The Plaintiff has not produced
summary judgment evidence that allowing the accommodation of
additional leave time would enable him to perform the essential
function of appearing for work. Furthermore, the accommodations of
flex time and a transfer to Florida, even if reasonable, would not
enable Bazile to perform the essential functions of his job.
Although these accommodations may mitigate the effects of Bazile’s
insomnia, the evidence does not show that these accommodations
would enable the Plaintiff to appear for work. Consequently,
Bazile failed to raise a genuine issue regarding whether Lucent
could have reasonably accommodated his disability.
The plaintiff contends that the district court should have
permitted him to present evidence rebutting the presumption of
estoppel, enunciated in Cleveland v. Policy Management Systems
Corp. In Cleveland, the court clarified the relationship between
the ADA and the Social Security Act. The Cleveland opinion was
released one month prior to the district court’s grant of summary
judgment for the Defendant. Bazile had an opportunity to rebut the
presumption of judicial estoppel through a motion for leave to
amend his response to summary judgment, but failed to do so.
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Consequently, the district court did not err by granting summary
judgment.
For the foregoing reasons, the district court’s grant of
summary judgment for Lucent Technologies is
AFFIRMED.
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