     Case: 09-60765 Document: 00511297029 Page: 1 Date Filed: 11/17/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         November 17, 2010

                                       No. 09-60765                         Lyle W. Cayce
                                                                                 Clerk

BARBARA WINBORNE

                                                   Plaintiff-Appellee
v.

SUNSHINE HEALTH CARE, INC.

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:07-CV-157


Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:*
       Defendant-Appellant Sunshine Health Care, Inc. (“SHC”) appeals the
district court’s denial of its motion for judgment as a matter of law and, in the
alternative, its motion for a new trial after a jury returned a verdict for Plaintiff-
Appellee Barbara Winborne (“Winborne”). In the district court, SHC argued
that: (1) Winborne failed to present evidence that SHC perceived her to have a
disability within the meaning of the Americans with Disabilities Act (“ADA”); (2)
Winborne failed to establish that SHC’s reasons for termination were pretextual;

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                    No. 09-60765

and (3) the trial court improperly instructed the jury on Winborne’s burden of
proof. SHC raises the same three issues on appeal. We conclude that the
district court erred in denying SHC’s motion for judgment as a matter of law
because Winborne failed to present sufficient evidence that SHC perceived her
as having a disability under the ADA. We therefore REVERSE and RENDER
judgment in favor of Appellant SHC without reaching SHC’s remaining issues.
                 I. FACTS AND PROCEDURAL HISTORY
      Winborne began working as a licensed practical nurse (“LPN”) at Sunshine
Rest Home, SHC’s predecessor, in 1992.1 In 1993, Winborne learned that she
suffered from transient ischemic attacks (“TIAs”).          The symptoms of TIAs
include temporary loss of awareness, weakness, severe headaches, dizziness, and
difficulty concentrating. Winborne took medication to control the attacks and
reported no problems in performing her job duties. In 2005, Winborne informed
SHC’s Director of Nursing, Amy Heatherly (“Heatherly”), that she suffered from
TIAs. Heatherly was under the impression that Winborne’s symptoms were
controlled by medication.
      On July 8, 2005, Winborne made her rounds through the facility,
performing her duties as a treatment nurse. Winborne checked on an elderly
female patient (the “Patient”), who required restraints because she suffered from
dementia and was prone to agitation, finding her safely in bed. Approximately
thirty minutes later, Winborne returned to the Patient’s room to find the Patient
hanging over the side of her bed, suspended by her pelvic restraints. The bed
rails were down at the time. The Patient was rushed to the hospital and was
later returned to SHC.
      Following this incident, as required by law, SHC contacted the Mississippi
Department of Health (“MDOH”) to report the Patient’s injury. Pursuant to


      1
         SHC purchased Sunshine Rest Home and changed its name to Sunshine Health Care,
Inc. in 2005.

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MDOH’s request that Heatherly investigate the incident, Heatherly filed a
supplemental report with MDOH, noting that Winborne suffered from TIAs. In
the report, Heatherly stated that upon questioning other SHC employees,
several told her that Winborne made statements that were inconsistent with
common nursing knowledge “as if she were incoherent” and that Winborne also
said that on “some occasions while at work” she was having TIAs.              The
investigation also revealed that Winborne was the last person to check on the
Patient.   Heatherly reported that “[b]ased on these facts I believe it is a
possibility that the side rail was left down by Barbara Winborne upon first visit
to the room.” SHC suspended Winborne while conducting an investigation into
the incident.
       Several months later, MDOH conducted an on-site investigation into the
incident. Heatherly and SHC’s owner, Eric Holland (“Holland”), maintained that
the MDOH inspector mentioned Winborne in conversations on the day of the
investigation. On February 2, 2006, SHC received a letter from MDOH stating
that the claims of abuse and neglect were “substantiated,” and SHC terminated
Winborne pursuant to its policy that requires termination of an employee found
guilty of patient neglect. Winborne sought and received permission to sue from
the EEOC and then sued, alleging that SHC terminated her in violation of the
ADA.
       At trial, Holland testified that he was concerned for the safety of his
patients and questioned whether a nurse in Winborne’s position who suffered
from TIAs posed a risk to patients. Holland admitted that he contacted the
Mississippi Board of Nursing (“BON”) to inquire whether a nurse who had TIAs
could work with patients.     Holland also testified that “at some point [he]
considered her to possibly have a medical disability that would affect her ability
to work”; however, he also testified that several nurses at SHC worked in
administrative positions. Heatherly admitted requesting a signed release from

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Winborne’s physician that she was “competent and safe at all times to provide
nursing care while receiving treatment for her current medical condition.”
Winborne testified that she had worked as a nurse for over twenty years, that
she had no problems performing her duties, and that she subsequently found a
job as a nurse in another nursing home.
      A jury awarded her $10,000 and over $26,000 in attorney’s fees and costs.
After the jury verdict, SHC filed a motion for judgment as a matter of law and,
in the alternative, a motion for a new trial. The district court denied SHC’s
motions, and SHC filed this appeal.
                         II. STANDARD OF REVIEW
      We review a denial of a motion for judgment as a matter of law de novo,
applying the same legal standard as the district court. Great Am. Ins. Co. v.
AFS/IBEX Fin. Servs., 612 F.3d 800, 808 (5th Cir. 2010). The appellate court
will “consider all of the evidence, drawing all reasonable inferences and resolving
all credibility determinations in the light most favorable to the non-moving
party.” Broussard v. State Farm Fire & Cas. Co., 523 F.3d 618, 624 (5th Cir.
2008) (quoting Brown v. Bryan Cnty., 219 F.3d 450, 456 (5th Cir. 2000)). A
motion for judgment as a matter of law should be granted “[i]f during a trial by
jury a party has been fully heard on an issue and there is no legally sufficient
evidentiary basis for a reasonable jury to find for that party on that issue . . . .”
Bank of Saipan v. CNG Fin. Corp., 380 F.3d 836, 840 (5th Cir. 2004) (emphasis
added); see also Propulsion Techs., Inc. v. Attwood Corp., 369 F.3d 896, 905 (5th
Cir. 2004) (granting judgment as a matter of law on a misappropriation of trade
secrets claim because the party presented no evidence of use of a confidential
design or confidential information).
                               III. DISCUSSION
      SHC argues that Winborne presented insufficient evidence to support the
jury’s finding that SHC regarded Winborne as disabled, which is an essential

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element of Winborne’s prima facie ADA claim. Specifically, SHC argues that
although Winborne presented some evidence that SHC employees believed
Winborne may not be able to perform her particular job as a treatment nurse
because of her TIAs, she did not satisfy her obligation to prove that SHC
regarded her as unable to perform a class of jobs or a broad range of jobs in
various classes.
A.     Pre-Amendment ADA “Regarded as” Liability Requires that
       Winborne Show that SHC Regarded Her as Significantly Restricted
       From a Class of Jobs

       The applicable version of the ADA 2 prohibited covered entities, including
private employers such as SHC, from discriminating against qualified individuals
with a disability. 42 U.S.C. § 12112(a). The ADA defined “disability” as: (1) “a
physical or mental impairment that substantially limits one or more major life
activities”; . . . or (3) “being regarded as having such an impairment . . . .” 42
U.S.C. § 12102(1). Winborne chose to proceed under the third prong of the
definition, alleging that SHC regarded her as disabled. In addition to being
perceived to have an impairment, Winborne had to prove that the perceived
impairment limited a “major life activity” and that the limitation was
“substantial.” 29 C.F.R. § 1630.2(l).
       Winborne claims that SHC regarded her as being substantially limited in
the “major life activity” of working. The ADA and the EEOC regulations included



       2
          Effective January 1, 2009, Congress made substantial changes to the ADA that
affected “regarded as” liability. See ADA Amendments Act of 2008, Pub. L. No. 110-325, 122
Stat. 3553 (2008). We have held that these amendments to the ADA do not apply
retroactively. See EEOC v. Agro Distrib. LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009) (“Congress
recently enacted the ADA Amendments Act of 2008 . . ., but these changes do not apply
retroactively.”). This case was filed on July 2, 2007; therefore, the ADA Amendments Act of
2008 does not apply. All references to the ADA and concomitant regulations are to the
versions in effect at the time of the incidents in question. We express no opinion as to how this
case would be analyzed under the amended law.


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“working” in the definition of “major life activity.” 42 U.S.C. § 12102(2); 29 C.F.R.
§ 1630.2(i). The regulations also provided that, with respect to the major life
activity of working, the term “substantially limits means significantly restricted
in the ability to perform either a class of jobs or a broad range of jobs in various
classes as compared to the average person having comparable training, skills and
abilities.”   29 C.F.R. § 1630.2(j)(3)(I) (emphasis added).         According to the
regulations, “[t]he inability to perform a single, particular job does not constitute
a substantial limitation in the major life activity of working.” Id. Winborne
therefore had the burden of proving that her impairment or perceived
impairment extended beyond her one particular job to a class of jobs or a broad
range of jobs in various classes. Id.; see also Sutton v. United Air Lines, Inc., 527
U.S. 471, 491-93 (1999).
       The Supreme Court, in applying 29 C.F.R. § 1630.2, has held that “[w]hen
the major life activity under consideration is that of working, the statutory
phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they
are unable to work in a broad class of jobs.” Sutton, 527 U.S. at 491. In Sutton,
the Court held that the plaintiffs failed to meet their burden of proof because they
alleged only that the defendant regarded them as disabled from the job of “global
airline pilot.” Id. at 493. According to the Court, this “does not support the claim
that [the employer] regard[ed] petitioners as having a substantially limiting
impairment” because this was a single job, not a class of jobs or a broad range of
jobs in various classes. Id. at 493. According to the Court, “there are a number
of other positions utilizing petitioners’ skills, such as regional pilot and pilot
instructor, to name a few . . . .” Id. Merely alleging that the employer regarded
the plaintiffs as disabled from “one type of job, a specialized job, or a job of choice”
is not sufficient. Id. at 492.
       Applicable precedent of this circuit establishes that proof that a plaintiff
is disqualified from one job is insufficient to state a claim. See, e.g., Deas v.

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Alternative Addiction Treatment Concepts, Inc., 152 F.3d 471, 481 (5th Cir. 1998);
Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998). For example,
in Deas, the plaintiff alleged that her employer regarded her as substantially
limited in her ability to work because the employer fired her from her job as an
addiction technician because of a seizure disorder and told her that “there were
no other jobs in the hospital that could accommodate [her].” Deas, 152 F.3d at
480-81. She argued that her employer’s statement “prove[d] the defendants
perceived [her] to be substantially limited in her ability to work in any clinic or
hospital setting,” but we rejected this argument, noting that she did not make
“any showing either that positions were available or that she applied for,
requested to be considered for, or even showed an interest in other positions at
the hospital.” Id. In affirming summary judgment in favor of the defendants, we
held that the record did not support the plaintiff’s assertion that her employers
regarded her as “substantially limited” in her ability to work and that there was
“no evidence that either [defendant] thought that [she] could not work safely in
either ‘a class of jobs or a broad range of jobs in various classes.’” Id. at 481.
      Winborne had the burden of showing that her impairment or perceived
impairment extends beyond one job to a class of jobs or a broad range of jobs in
various classes. Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 475 (5th
Cir. 2006). A plaintiff must provide evidence to substantiate a “regarded as”
claim of employment discrimination. Id. The EEOC regulations set out the
factors a court may consider in determining whether a person is substantially
limited in the major life activity of working:
      (A) The geographical area to which the individual has reasonable
      access;
      (B) The job from which the individual has been disqualified because
      of an impairment, and the number and types of jobs utilizing similar
      training, knowledge, skills or abilities, within that geographical
      area, from which the individual is also disqualified because of the
      impairment (class of jobs); and/or

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        (C) The job from which the individual has been disqualified because
        of an impairment, and the number and types of other jobs not
        utilizing similar training, knowledge, skills or abilities, within that
        geographical area, from which the individual is also disqualified
        because of the impairment (broad range of jobs in various classes).
29 C.F.R. § 1630.2(j)(3)(ii). In Sutton, the Supreme Court noted that courts
should consider these factors in determining whether a plaintiff is substantially
limited in the major life activity of working. 571 U.S. at 491. In Sherrod, we
affirmed a district court’s decision to grant summary judgment to an employer
in part because the plaintiff failed to “present[] evidence of the number and types
of jobs from which she is disqualified, or evidence that her training and skills
limit her to jobs requiring heavy lifting.” 132 F.3d at 1120. An employer’s
comments that the employee cannot work in a particular job or that there were
no other jobs that could accommodate the employee, without more, are
insufficient to support a finding that the employer regards that employee as
disqualified from a class of jobs or a broad range of jobs in various classes.
Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 506, 508 (5th Cir. 2003);
Deas, 152 F.3d at 480-81. Having set out the law, we now turn to the facts of this
case.

B.      Winborne Presented No Evidence that SHC “Regarded Her as”
        Disabled within the Meaning of the Pre-Amendment ADA

        We conclude that the district court erred in denying SHC’s motion for
judgment as a matter of law because Winborne presented insufficient evidence
that her perceived impairment extended beyond one job to a class of jobs or a
broad range of jobs in various classes. Plaintiff’s evidence on this issue was
limited to demonstrating that SHC may have regarded her as disabled from
working at her job—that of a treatment nurse who cared for patients.
Terminating an employee because the employer regards that employee as unable



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to perform his or her particular job, however, is insufficient to establish an ADA
violation under the applicable law. Gowesky, 321 F.3d at 508; Deas, 152 F.3d at
481. Indeed, in denying SHC’s motion for judgment as a matter of law, the
district court improperly concluded that because the “[e]vidence revealed, for
instance, that the director of nursing at Sunshine Health Care did not believe the
plaintiff to be capable of performing her job despite the plaintiff’s doctor’s
statements to the contrary,” Sept. 15, 2009 Order at 2 (emphasis added),
Winborne offered sufficient evidence to sustain the jury’s verdict. The case law
establishes, however, that this showing is insufficient as a matter of law to show
that SHC regarded her as disabled from working in either a class of jobs or a
broad range of jobs in various classes. Sutton, 527 U.S. at 491; Deas, 152 F.3d at
481.
        At trial, Winborne presented the following evidence to show that SHC
regarded her as disabled: (1) Holland’s testimony that he contacted the BON to
inquire whether a nurse with TIAs could practice; (2) Holland’s testimony that
he did so because he was concerned that TIAs might influence Winborne’s ability
to work; (3) Holland’s testimony that he terminated Winborne because he could
not take a chance of jeopardizing his patients’ safety; and (4) Heatherly’s
testimony that she recommended Winborne’s termination because she was
concerned about Winborne’s ability to practice as a nurse, that she believed
Winborne was not safe to work with patients because of her altered thinking, and
that she wanted a note from Winborne’s neurologist stating that Winborne was
competent and safe to work as a nurse.
        We reject Winborne’s argument that this evidence is sufficient to carry
Winborne’s burden of proof on this element of her claim. Winborne offered no
evidence at trial that SHC regarded her as unable to perform a class of jobs or a
broad range of jobs. It is clear that both Holland and Heatherly were concerned
about Winborne’s ability to care for patients and that the role of Winborne’s TIAs

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in causing the incident with the Patient were a primary concern that led to her
discharge from her job as a treatment nurse. However, Winborne offered no
evidence to show that her condition disqualified her from other nursing positions
or a broad range of healthcare-related positions that did not involve patient care.
      Winborne failed to present any evidence about the “number and types of jobs
utilizing similar training, knowledge, skills or abilities, within that geographical
area” or the “number and types of other jobs not utilizing similar training,
knowledge, skills or abilities, within that geographical area” from which SHC
perceived she was disqualified. 29 C.F.R. § 1630.2(j)(3)(ii). Winborne did not ask
a single question at trial about whether SHC would have hired her in an
administrative role, although Holland testified that several nurses had
administrative positions at SHC. Winborne also failed to ask a single question
about whether SHC perceived her as incapable of performing any job that utilized
her skills. Holland and Heatherly’s statements, taken alone, are insufficient to
support the jury’s verdict.
                               IV. CONCLUSION
      Because Winborne failed to present any evidence to prove that SHC
regarded her as incapable of performing a class of jobs or a broad range of jobs in
various classes, we conclude that the district court erred in denying SHC’s motion
for judgment as a matter of law. As the evidence was insufficient as a matter of
law to support the jury’s verdict, we therefore REVERSE and RENDER judgment
in favor of Defendant-Appellant SHC.




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