Myers v. Shell Deer Park

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-21049
Summary Calendar
LANNIE MYERS,
Plaintiff-Appellant,
versus
SHELL DEER PARK REFINING COMPANY, A Division of
Shell Oil Products Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(H-98-CV-4098)
May 29, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Lannie Myers challenges the summary judgment awarded Shell
Deer Park Refining Company. Primarily at issue is whether his
reassignment was a reasonable accommodation under the Americans
with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA). AFFIRMED
*
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this opinion should not be published and is not precedent except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.
I.
Myers has worked at Shell since 1977. In June 1997, pursuant
to the pertinent collective bargaining agreement, Myers “bid” on,
and “won” (subject to meeting the prerequisites for the position),
one of the two control board operator positions at Shell’s
Hydroprocessing Unit. Each of the two control board operators is
cross-trained on the other’s jobs, and each monitors a designated
portion of the refining processes in the Unit. Each also interacts
with two outside operators; together, they monitor, troubleshoot,
and identify any need for corrective action. Whereas the control
board operators spend 100 percent of their time inside the control
room, seated at computerized consoles, the outside operators spend
30 to 40 percent of their time outside the Unit, taking readings,
making visual observations, and occasionally adjusting pumps and
valves.
To be promoted to the control board operator position, Myers
was required first to train on the two outside operator positions.
Shell explained control board operators need to know what they are
asking the outside operators to do because emergency situations may
arise that require immediate responses. Because Myers suffered
from a knee injury that prevented him from training on the two
outside positions, he did not receive the control board operator
position.
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In April 1998, after various temporary assignments to light-
duty tasks, Myers was placed on disability leave because Shell had
no more work that fit his restrictions. He returned to work six
months later in a temporary position scheduling vacations for the
operators, and, when that ended, he received other temporary
assignments from reviewing and updating procedures to scheduling
(he has held that position since November 1998). Although Myers
received the same base pay he would as an operator, he had less
opportunity for overtime work, and lost his union protection.
Claiming Shell discriminated against him on the basis of his
disability by not awarding him the control board operator position,
Myers brought this action against Shell under the ADA. (As of this
appeal, he was still employed by Shell.) Shell was granted summary
judgment.
II.
A summary judgment is reviewed de novo. E.g., Taylor v.
Principal Financial Group, Inc., 93 F.3d 155, 161 (5th Cir.), cert.
denied, 519 U.S. 1029 (1996). Such judgment is appropriate when
the summary judgment record, viewed in the light most favorable to
the nonmovant, presents no material fact issue, and the movant is
entitled to a judgment as a matter of law. Id.; FED. R. CIV. P.
56(c).
To prevail on a claim under the ADA, a plaintiff must prove:
he has a disability; he is qualified for the position for which he
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seeks employment; and he was discriminated against solely because
of his disability. Gonzales v. City of New Braunfels, Tex., 176
F.3d 834, 836 (5th Cir. 1999). The parties concede that Myers is
“disabled” within the meaning of the ADA because he is
significantly limited in the major life activity of walking.
Accordingly, the issues are: whether Myers is qualified for the
control board position; and whether the scheduler assignment is a
reasonable accommodation.
A.
Myers asserts the district court erred by: crediting Shell’s
disputed testimony that control board operators must perform the
job duties of an outside operator; misstating the issue to be
whether Shell was obligated to waive its requirement that the
control board operator first train on two outside jobs; and
concluding the temporary assignment was a reasonable accommodation.
Myers fails to demonstrate that his reassignment was not a
reasonable accommodation. “Under the ADA, reassignment to a vacant
position can be a reasonable accommodation.” Id. at 838. The gist
of Myers’ complaint is that Shell did not modify its training
procedures so that he could have qualified for the control board
position. This, however, merely establishes that Shell could have
made other reasonable accommodations for Myers. It does not show
that Shell’s decisions were discriminatory. Allen v. Rapides
Parish School Bd., 204 F.3d 619, 622-23 (5th Cir. 2000) (“The ADA
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does not require an employer to give an employee with a disability
his job of choice especially when there are qualified individuals
who desire the same position.” (emphasis added)). And, even if
Myers’ reassignment was unfair because it amounted to a demotion,
as Myers asserts, this is not sufficient to establish a claim for
discrimination. See id. (“The ADA gives [a plaintiff] a claim only
for discriminatory action and not for unfair treatment.”).
B.
Myers also maintains Shell had a duty to engage in a good
faith, interactive process with Myers to assess his disability and
ascertain the availability of reasonable accommodations. As the
district court correctly noted, there is no requirement that Shell
engage in this kind of dialogue. See Loulseged v. Akzo Nobel,
Inc., 178 F.3d 731, 736 (5th Cir. 1999) (“[T]here may be some
situations in which the reasonable accommodation is so obvious that
a solution may be developed without either party consciously
participating in an interactive process.”); see also Allen, 204
F.3d at 622 (raising material fact issue whether interactive
process required does not establish ADA claim).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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