Turco v. Hoechst Celanese ( 1996 )

United States Court of Appeals,
Fifth Circuit.
No. 96-40038.
John R. TURCO, Plaintiff-Appellant,
v.
HOECHST CELANESE CHEMICAL GROUP, INC., et al., Defendants,
HOECHST CELANESE CHEMICAL GROUP, INC., Defendant-Appellee.
Dec. 23, 1996.
Appeal from the United States District Court for the Southern
District of Texas.
Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.
PER CURIAM:
This appeal arises out of a suit filed under the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et. seq. The
plaintiff, John R. Turco, alleges that he was fired from his job
because of an insulin-dependent diabetic condition. However, the
United States District Court for the Southern District of Texas,
per Judge Hugh Gibson, found otherwise and granted summary judgment
in favor of the defendant. We affirm the district court's
decision.
I. Background
Turco worked as a chemical process operator for Hoechst
Celanese Chemical Group, Inc. ("Hoechst") at its Clear Lake, Texas
plant for thirteen years. He worked a rotating shift, as there was
no "day shift" for any process operator, and was routinely required
to work through the night. In the early to mid-1980s Turco was
diagnosed with adult onset diabetes and began taking oral
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medication to regulate his condition. This treatment seemed to
succeed for several years because he continued working his shift
without complaint. However, in January, 1994, Turco learned that
an exacerbation of his diabetic condition required him to use
insulin. Turco's co-workers, supervisors, and the company's human
resource personnel were all well aware, nearly from the onset,
about Turco's diabetic condition and its progression.
Although Turco's supervisors considered him a capable operator
overall, Turco had a history of ignoring Hoechst policies and
procedures. This was clearly evidenced in his year-end performance
appraisals of 1992 and 1993. Each emphasized his need to improve
his attitude, cooperation, poor attendance record, and commitment
to safety. Turco's performance, by his own admission, began to
deteriorate even more in 1994. Given his admitted, increasing
difficulties on the job, Turco responded on March 11, 1994 to an
internal job posting for an available process analyzer technician
position. However, he was not selected for the job.
On March 21, 1994, Turco submitted a letter written by his
treating physician, Dr. James Eden, recommending that he be
transferred to a daylight position, concluding that the more
predictable eating, sleeping, and exercise patterns accompanying an
exclusively daytime schedule would facilitate the regulation of his
blood sugar levels. In response to this letter, Hoechst's company
nurse met with Turco and requested that he make an appointment with
a company-selected endocrinologist so that his diabetic condition
could be independently evaluated. Whether the responsibility lay
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with Turco or with the nurse to arrange this appointment is subject
to considerable controversy in the record. This factual dispute
notwithstanding, Turco clearly never met with this endocrinologist.
Though evidence of other procedural lapses appears in the
record, it is primarily two incidents of policy infractions which
contributed to Turco's termination. The first occurred on March
24, 1994, when Turco hooked the plant's fire water to the high
pressure side of the liquids incinerator, contaminating the fire
water with highly flammable organic material. The potential
ramifications of using water that is infected with highly flammable
organic materials to put out a fire go without saying. Turco
clearly admitted that this mistake was "extremely dangerous." In
fact, he was afraid he was going to be fired because he could have
not only hurt himself, but could have hurt others. Hoechst
considered firing Turco over this incident, but his supervisor, Don
Hardt, convinced management to give him another chance. Instead,
on May 2, 1994, he was subjected to written corrective action for
his acts.
The second incident occurred while Turco was on written
corrective action. On May 13, 1994, Turco exposed his arms to
acrylic acid polymer while cleaning a strainer on a crude acrylic
truck. Instead of washing the exposed area for fifteen minutes and
promptly reporting the incident to his supervisor, as required by
Hoechst policy, Turco went home after his shift and went to bed.
He was awakened during the early morning because of the discomfort
and swelling in his forearms. He reported the injury upon his
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arrival at work the next morning and a physician subsequently
treated him for first degree chemical burns. Shortly thereafter,
on June 3, 1994, citing Turco's "repeated behavior for not
following procedures" and his "failure to demonstrate a sustained
willingness to change this behavior," Hoechst terminated Turco's
employment.
Following his termination, Turco sued, alleging that Hoechst
violated the ADA in two ways. First, Hoechst failed to accommodate
Turco's diabetes. Second, he alleges that his termination
reflected unlawful discrimination on the basis of his
insulin-dependent diabetic condition. Judge Gibson granted summary
judgment in favor of the defendant, finding that Turco was not a
"qualified individual with a disability" because he could not
perform the essential functions of his job without putting himself
or others in dangers way and no reasonable accommodation would be
able to eliminate this risk. Turco now appeals.
II. Discussion
A. Standard of Review
We review a summary judgment de novo, as if we were the
district court itself. E.g., McMurtray v. Holladay, 11 F.3d 499,
502 (5th Cir.1993). Therefore, summary judgment is appropriate if
there is "no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of law."
FED.R.CIV.P. 56(c).
B. The Americans with Disabilities Act
The Americans with Disabilities Act provides that "no covered
4
entity shall discriminate against a qualified individual with a
disability because of the disability of such individual in regard
to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and
other terms, conditions and privileges of employment." 42 U.S.C.
§ 12112(a). A "disability" includes "a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual." 42 U.S.C. § 12102(2). A
"qualified individual with a disability" means an "individual with
a disability who, with or without reasonable accommodations can
perform the essential functions of the employment position that
such individual holds or desires." Id. at § 12111(8).
To prevail on an ADA claim, a plaintiff must prove that 1) he
has a "disability"; 2) he is "qualified" for the job; and 3) an
adverse employment decision was made solely because of his
disability. Rizzo v. Children's World Learning Centers, Inc., 84
F.3d 758, 763 (5th Cir.1996).
C. Granting summary judgment on grounds not briefed
The crux of Turco's first argument centers around the
allegation that the lower court erred by granting summary judgment
on grounds not urged or briefed by the defendant. He claims that
when Hoechst moved for summary judgment, it argued only that it had
terminated Turco for "legitimate, non-discriminatory reasons" and
that Judge Gibson granted the motion on the basis that Turco was
not a "qualified" individual, the second element of his ADA claim.
We find that Hoechst did in fact raise the issue of whether
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Turco was "qualified" in its motion. Although it was raised in a
footnote, it clearly places Turco on notice that the issue of his
qualification was part of the summary judgment submitted by the
defendant. Hoechst plainly writes in its footnote that "even
assuming the plaintiff is disabled under the ADA, there is no
evidence that plaintiff is a "qualified individual with a
disability' within the meaning of the ADA." (R. 274).
Judge Gibson granted Hoechst's motion on facts that were not
specifically raised in the motion, but it is well settled that he
is entitled to do so. Rule 56 of the Federal Rules of Civil
Procedure requires a court to consider the whole record when ruling
on a motion for summary judgment. The record includes the
"pleadings, depositions, answers to interrogatories, and admissions
on file, together with the affidavits." FED.R.CIV.P. 56(c).
Although a court may not weigh the evidence to determine its truth
nor draw inferences from the facts, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510-11, 91 L. Ed. 2d 202
(1986), Rule 56 clearly permits a court to consider the whole
record, and "not just the portion highlighted by the motion."
Ramirez v. Burr, 607 F. Supp. 170, 173 (S.D.Tex.1980) (citing Keiser
v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir.1984)).
Moreover, a district judge is not compelled to limit the basis for
a summary judgment on those facts listed in the motion for summary
judgment. United States v. Houston Pipeline, 37 F.3d 224, 227 (5th
Cir.1994). In essence, a district court has the ability to grant
a summary judgment on facts not briefed by the movant, as long as
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the non-movant has notice of the issue.
D. Qualified individual with a disability
It is undisputed that Turco's diabetic condition is
considered a "disability" under the ADA. However, the contention
lies in whether Turco is a "qualified individual" with a
disability, that is, whether he is a person who, with or without
reasonable accommodation, can perform the essential functions of
his employment position. Turco asserts that there are genuine
issues of material fact with regards to his "qualification" under
the ADA on several bases.
We have defined an "otherwise qualified person as "one who is
able to meet all of the program's requirements in spite of his
handicap' ". Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th
Cir.1993), cert. denied, --- U.S. ----, 114 S. Ct. 1386, 128 L. Ed. 2d
61 (1994) (quoting Southeastern Community College v. Davis, 442
U.S. 397, 406, 99 S. Ct. 2361, 2367, 60 L. Ed. 2d 980 (1979)). To
avoid summary judgment on whether he is a qualified individual,
Turco needs to show 1) that he could perform the essential
functions of the job in spite of his disability or 2) that a
reasonable accommodation of his disability would have enabled him
to perform the essential functions of the job. Id.
After reviewing the summary judgment evidence before us we
find that Turco was not qualified to perform the essential
functions of a chemical process operator. This is evidenced by his
own testimony. He testified in his deposition that walking and
climbing "are all things that a chemical process operator has to
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do" and that "good concentration" is "most definitely" important to
a process operator. Yet, he recalls specific instances when his
diabetes affected his ability to do his job. For example, he
remembers working on the "control room board" while one of the
operators was putting a piece of apparatus in service and not being
able to concentrate on what to do next. He also recalls walking to
an incinerator at one point and his legs hurting so bad that he
could hardly walk, he couldn't climb, and he lost his
concentration. There were times that his sugar level was so low
that he could not remember his name. On the one hand he sets out
the essential job requirements of a chemical process operator and
on the other he basically admits that he cannot fulfill those basic
requirements.
Turco next contends that his ailments and concentration
problems would all be alleviated if Hoechst had accommodated him
and switched him to a day-time shift. We find this argument
implausible for two reasons. First, regardless of whether Turco
was working a straight day-shift or a rotating shift, he would
still, by his own admission, be unable to perform the essential
functions of an operator because both the physical and mental
demands would be the same. He would still need to walk, climb and
concentrate, but he would still not be able to perform these
essential functions. Second, Hoechst has no straight day-shift
chemical operator positions—all operator positions are on rotating
shifts. Moving one operator to a straight day shift would place a
heavier burden on the rest of the operators in the plant. And an
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accommodation that would result in other employees having to work
harder or longer is not required under the ADA. Milton v.
Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995); 29 C.F.R. §
1630.2(p)(2)(v).
Turco briefly mentions that Hoechst was also unaccommodating
because it did not hire him as an analyzer technician. However,
this position required him to walk, climb, and concentrate as much
as his previous position. Thus, Turco would be, by his own
admission, just as unqualified for this accommodation.
Additionally, Hoechst is not required to create light duty jobs to
accommodate disabled employees.1 The law does not require
affirmative action in favor of individuals with disabilities. It
merely prohibits employment discrimination against qualified
individuals with disabilities, no more and no less. Daugherty v.
City of El Paso, 56 F.3d 695, 700 (5th Cir.1995).
Turco is not only unqualified because he cannot perform the
essential functions of his job, but he is also unqualified due to
the safety risk that he imposes upon himself and others. The ADA
allows qualification standards that "include a requirement that an
individual shall not pose a direct threat to the health or safety
of other individuals in the workplace," and defines a "direct
threat' as a significant risk to the health or safety of others
1
See Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th
Cir.1995), cert. denied, --- U.S. ----, 116 S. Ct. 1263, 134 L. Ed. 2d
211 (1996) ("[an employer] is not required to fundamentally alter
its program. Nor is the [company] required to find or create a new
job for the [plaintiff] ...") (quoting Chiari v. City of League
City, 920 F.2d 311, 318 (5th Cir.1991).
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that cannot be eliminated by reasonable accommodation. 42 U.S.C.
§ 12113(b). Turco's position at Hoechst required him to work with
complicated machinery and dangerous chemicals. Any diabetic
episode or loss of concentration occurring while operating any of
this machinery or chemicals had the potential to harm not only
himself, but also others. This would be a walking time bomb and
woe unto the employer who places an employee in that position.
In sum, Turco was not "qualified" under the ADA for two
reasons. First, he was not qualified to perform essential duties
required by Hoechst. Second, he was not qualified due to the
safety concerns presented by the severity and volatility of his
diabetes. No reasonable accommodation could be made that would
qualify Turco to perform his job in spite of his diabetes.
E. Discriminatory Intent
Turco alleges that the lower court resolved
credibility-intensive fact issues regarding discriminatory intent.
Although Judge Gibson addressed discrimination in his opinion and
order, he never actually rules on this issue. He granted summary
judgment on the sole issue of whether Turco was a "qualified"
individual under the ADA. However, even had this issue been ruled
on by Judge Gibson, there is no evidence whatsoever that the
actions taken by Hoechst were discriminatory in nature. The reason
it fired Turco was because, among other incidents, he had two
accidents in the span of two months. These last two accidents
jeopardized both his safety and the safety of others. Furthermore,
there is no evidence that Turco was treated any differently than
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any other employee with the same condition.
III. Conclusion
Based on the foregoing, we AFFIRM the district court's
decision granting summary judgment in favor of the defendant.
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