                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                       August 31, 2004

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                 04-40141
                             Summary Calendar




                            SHARON J. ZIMMER,

                                                    Plaintiff-Appellant,
                                    VERSUS

                 SOUTHWESTERN BELL TELEPHONE COMPANY,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
                   For the Eastern District of Texas
                             (4:01-CV-139)



Before DUHÉ, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:1

      Plaintiff-Appellant Sharon Zimmer was employed as a directory

assistance     operator   with   Defendant-Appellee      Southwestern       Bell

Telephone Company (SWBT) in McKinney, Texas.          After an automobile

accident on February 1, 1996, Zimmer was on short-term disability

leave until September 1996.2         She then resumed her job without

incident until November 1997.        On Thanksgiving Day she created an

office   disturbance,     causing   customer   service    to   be    affected,


  1
     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this opinion should not be published and is not precedent except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.
  2
      R. 142-43.
according to SWBT’s investigation.3           She was given one-day Decision

Making Leave, with pay, to decide whether she wanted to keep her

job or not.        On her leave day Zimmer visited her psychiatrist, and

the doctor put her on short-term disability leave because of

stress.4

         While Zimmer was on leave, SWBT closed its McKinney facility

and offered her a position in downtown Dallas.               Zimmer rejected

that offer.        SWBT changed Zimmer’s status to retired and gave her

permanent       pension   disability   and    lifetime   medical   and   dental

benefits.5 Zimmer sued SWBT for discrimination under the Americans

with Disabilities Act, and the district court denied her all relief

on a motion for summary judgment by SWBT.             We affirm.

                                       I.

         A plaintiff makes a prima facie showing of ADA discrimination

by establishing that she 1) is disabled or is regarded as disabled;

2) is qualified for the job; 3) was subjected to an adverse

employment action on account of her disability; and 4) was replaced

by       or   treated   less   favorably     than   non-disabled   employees.6

Granting summary judgment for SWBT, the district court found that

Zimmer failed to produce evidence that she is disabled or regarded


     3
         R. 184.
     4
          R. 159-60, 170-73, 213.
     5
          R. 145-148, 189, 191.
     6
     McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th
Cir. 2000).

                                       2
as disabled, that SWBT took adverse employment action against her

because of her disability, and that the SWBT treated her less

favorably than other non-disabled employees similarly situated.

       A   plaintiff’s   failure   to   establish   a   genuine   issue   of

material fact on any of the essential elements of her claim

entitles defendant to summary judgment.7        We affirm on the basis

that Plaintiff has failed to establish that she was replaced by or

treated less favorably than non-disabled employees.

      With the closure of the McKinney facility, Plaintiff was not

replaced at all.    Nor has she shown that SWBT treated her less

favorably than other non-disabled employees similarly situated.

Upon closure of the McKinney office, she was offered her same

position in the downtown Dallas office.      Zimmer testified that her

doctors would not allow her to accept a position that would require

her to walk on curbs and face the stress of traffic.8

      According to Zimmer, some other “surplussed” employees were

offered positions in Garland, Greenville, Plano, and Richardson.9

Zimmer offered no evidence, however, that others were offered jobs

at more than one facility.    Nor did she produce evidence that she

requested a placement in one of the smaller cities.          Her argument

that SWBT employees did not testify that they did not know she was

  7
     See Blanks v. Southwestern Bell Communs., Inc., 310 F.3d 398,
402 (5th Cir. 2002).
  8
      R. 218-19.
  9
      R. 218-20.

                                    3
requesting assignment to a more convenient facility is beside the

point, because Zimmer herself bore the burden of proof on this

element.10

       Even with all the evidence viewed in Zimmer’s favor, her ADA

claim   fails     because    she   has   not    shown   that    she   was   treated

differently from others similarly situated.11

       While the district court presented a careful analysis of other

elements     of   Zimmer’s    claim,     if    she   failed    to   establish   the

essential element that the SWBT treated her less favorably than

other non-disabled employees similarly situated, that element alone

is dispositive.12

  10
      See McInnis, 207 F.3d at 279 (plaintiff must first make prima
facie showing to establish each element); see also Burch v. City of
Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999) (“[W]e will not
attribute extra-sensory perception to the [employer]: the record
does not offer a single example of [plaintiff’s] asking the
[employer] to transfer him . . . .”).
  11
     See Nacogdoches, 174 F.3d at 621 n.11 (“Had [plaintiff] shown
that the [employer] treated him differently from others similarly
situated by not reassigning him under identical conditions, his
position on appeal would have been much stronger. . . . Construing
the facts in the light most favorable to [plaintiff] does not
require us to credit otherwise unsupported assertions.”); see also
Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995)
(“What [plaintiff] failed to show, however, was that any such
alleged failings [in the employer not matching displaced employees
to openings, lining up interviews, etc.] were the result of
discrimination based on his disability. There was no proof that
the [employer] treated him worse than it treated any other
displaced employee,”) cert. denied, 516 U.S. 1172, 116 S.Ct. 1263,
134 L.Ed.2d 211 (1996).
  12
      Herrera v. Millsap, 862 F.2d 1157, 1159 -1160 (5th Cir.
1989)(“[A] complete failure of proof concerning an essential
element of the nonmoving party's case necessarily renders all other
facts immaterial.”).

                                         4
                                   II.

     The    remaining   two   assignments   of   error   are    the   court’s

exclusion    of   Zimmer’s    evidence   and     argument      that   she   is

substantially limited in the major life activity of learning, and

the court’s disallowance of an amendment to the complaint to assert

a learning disability.        These two errors could affect only the

court’s determination that Zimmer is not disabled.              Our decision

does not turn on the disability element of Zimmer’s claim.            With or

without the amendment or the evidence, Zimmer failed to establish

a genuine issue of material fact on an essential element of her

claim as discussed in Part I.       SWBT is entitled to judgment as a

matter of law under Rule 56(c).

     The judgment of the district court is

     AFFIRMED.




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