                IN THE UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT



                               No. 95-40965



LARRY RIEL
                                              Plaintiff-Appellant,

                                  versus

ELECTRONIC DATA SYSTEMS CORPORATION
                                              Defendant-Appellee.




             Appeal from the United States District Court
                   For the Eastern District of Texas

                             November 1, 1996
                       (                         )

Before HIGGINBOTHAM, DUHÉ, and BENAVIDES, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

     This is a suit under the Americans with Disabilities Act, 42

U.S.C. §§ 12102-213 (West 1994).           The district court granted

summary judgment to the employer, and the employee appeals.          We

review de novo. Finding questions of material fact, we reverse and

remand.



                                    I.

     We take plaintiff’s summary judgment evidence as true and draw

all reasonable inferences in his favor.         Rosado v. Deters, 5 F.3d

119, 122 (5th Cir. 1993).

     Electronic Data Systems Corp. develops, markets, and maintains

computer-based systems for other companies.           Typically, an EDS
contract with a customer defines the customer’s requirements and

the test and delivery dates for the computer system.                           Having

defined   the     customer’s     needs    and    timetable,    EDS       breaks    the

development and design of the system into small, discrete segments.

EDS   assigns     each    segment    to   an    individual    or    group     of   its

employees.      Progressive segments of a project are generally built

on the prior segments.              As a part of this process, EDS sets

completion dates for each segment, as well as intermediate (or

“milestone”) dates.          The completion dates for the segments are

coordinated to insure that EDS meets the date for final delivery to

the customer.

      Plaintiff     Larry    Riel    worked     for   eight   years      in   various

positions    at   EDS.       Most   recently,     Riel   worked     as    a   systems

engineer.    Riel has been a diabetic for decades.                 As a result, he

experiences vision and renal-system health problems.                  Riel alleges

that his diabetes and renal problems also cause severe fatigue,

periodically interfering with his job performance.

      As a systems engineer, Riel worked on various segments of

EDS’s projects.      In 1992, EDS assigned Riel to a computer project

under a new supervisor.              Later in the same year, Riel began

suffering from fatigue.             At that time, Riel did not know the

fatigue’s cause.         Riel began to miss certain “milestone deadlines”

in his particular project.            His new supervisor attributed this

failure to Riel’s tendency to socialize during work hours.                         Riel

attributes these failures to the fatigue caused by his renal

condition and diabetes. Whatever the cause, the parties agree that


                                          2
Riel never failed to meet the final deadline on any project; he

missed only the milestone deadlines. Riel claims that EDS adjusted

milestone deadlines for other employees when it was apparent that

a   particular      assignment     was    more      burdensome     than     had    been

previously thought, or when the employee in question needed special

accommodation.

       In late 1992 and early 1993, EDS supervisors began trying to

remedy Riel’s inability to meet the milestone deadlines. After two

formal    counseling       sessions   and     a   “below   average”       performance

rating, the supervisors resolved to place Riel on a “Personal

Improvement Plan.”           The PIP included a series of several new

milestone    deadlines.        When   they        implemented    Riel’s     PIP,   the

supervisors informed Riel that failure to meet any one of the new

milestones could constitute grounds for discharge.                   However, Riel

claims that in previous cases failure to meet milestone deadlines

by other employees on PIPs did not result in discharge.

       Apparently consulting with an internal officer familiar with

the ADA, Riel’s supervisors also gave him a written list of what

EDS considered the essential functions of a systems engineer.                      The

list     included    the     following:       coding   and      testing     programs,

responding    to    customer     communications,       interacting        with    other

staff, and working flexible hours. Meeting milestone deadlines was

not on the list.           According to Riel, the record shows that he

performed all of the listed functions completely.

       During the same month that EDS placed Riel on the PIP, Riel

had an emergency appendectomy.           During surgery, doctors discovered


                                          3
that Riel’s diabetes had blossomed into renal failure.                   Riel and

his physician suggest that this renal failure caused his fatigue.

When EDS learned of Riel’s health problems, EDS asked Riel to see

EDS’s doctor.        Riel twice complied.            In the midst of these

physician    visits,      Riel’s    direct    supervisor     spoke     to   Riel’s

physician, and listed for the doctor the essential functions of a

systems engineer; again, the list did not include meeting milestone

deadlines.

      Eventually, Riel missed a total of thirteen PIP milestone

deadlines.    Riel requested a transfer, but EDS refused and cited

its policy against transferring employees on PIPs or with “below

average” ratings.      Then EDS fired Riel.         The parties agree that EDS

fired Riel for failing to meet the milestone deadlines.                        The

parties dispute the extent of Riel’s progress at the time he was

fired.   Accepting, as we must, Riel’s version of the record, Riel

was within two or three days of completing all of his assigned

tasks, and would have been able to complete all of them by EDS’s

scheduled final deadlines.

      Following     his   termination,       Riel   sued,   alleging    that   EDS

violated the ADA by failing to accommodate his renal failure and

accompanying fatigue.        The district court applied the McDonnell

Douglas framework to analyze Riel’s contention of discrimination.

It   found   that   Riel    was    not   a   “qualified     individual      with   a

disability” because he could not perform the essential function of

meeting milestone deadlines, with or without accommodation, and

granted summary judgment.          In the alternative, the district court


                                         4
also   found    that   the    accommodations      sought   by   Riel    were   not

“reasonable accommodations” within the meaning of the act, which

also justified summary judgment for EDS.              Riel now appeals.



                                        II.

       The ADA provides that “[n]o covered entity shall discriminate

against a qualified individual with a disability because of the

disability . . . .”        42 U.S.C. § 12112(a).      The term “discriminate”

includes    “not     making   reasonable       accommodations     to   the   known

physical or mental limitations of an otherwise qualified individual

with a disability . . . unless such covered entity can demonstrate

that the accommodation would impose an undue hardship on the

operation of the business of such covered entity.”                      Id. at §

12112(b)(5)(A).        The ADA defines “qualified individual with a

disability” as “an individual with a disability who, with or

without    reasonable      accommodation,       can   perform   the    essential

functions of the employment position that such individual holds or

desires.”      Id. at § 12111(8).             “Reasonable accommodation” may

include “job restructuring, part-time or modified work schedules

. . . .”       Id. at § 12111(9)(B).           The “undue hardship” analysis

requires courts to consider factors including “the nature and cost

of the accommodation;” the size of the facility and the business

entity involved in terms of financial resources, personnel, and

geography;     and   the    type   of   operations    including    composition,

structure, and function.           Id. at (10)(B).




                                         5
       The ADA mandate that employers must accommodate sets it apart

from     most     other    anti-discrimination            legislation.            Race

discrimination statutes mandate equality of treatment, in most

cases prohibiting consideration of race in any employment decision.

In contrast, an employer who treats a disabled employee the same as

a    non-disabled   employee     may    violate     the     ADA.    By   requiring

reasonable      accommodation,    the       ADA    shifts    away   from    similar

treatment to different treatment of the disabled by accommodating

their disabilities.

       The terms “reasonable accommodation” and “undue hardship”

often go hand-in-hand.       Although the terms are separately defined,

see § 12111(9)-(10), the ADA provides that employers are liable for

failing to make reasonable accommodations to qualified individuals

unless the employer demonstrates that the accommodation imposes

undue hardship.      § 12112(b)(5)(A).        Furthermore, employers with a

“business necessity” have a defense when they impose “qualification

standards, tests, or selection criteria that . . . tend to screen

out” individuals with disabilities.               § 12113(a).

       Ultimately, the employer bears the burden of proof for both

“undue    burden”    and    “business        necessity”       because    both     are

affirmative defenses under the language of the statute.                     Section

12112(b)(5)(A) states that “unless [the employer] can demonstrate”

an undue burden, it may not discriminate.                     Similarly, section

12113(a) (titled “Defenses”) begins with the phrase “[i]t may be a

defense.”    In contrast, discrimination is defined to be a “failure

to    implement    reasonable    accommodations,”           suggesting     that    the


                                        6
plaintiff bears the burden of proof on that issue.           This places the

burdens where they comfortably fit--both within the statutory

scheme and the practical administration of pre-trial and trial

proceedings.     The employee must show that the employer failed to

implement a reasonable accommodation, and the employer may defend

by showing business necessity or undue burden.



                                  A.

     Riel’s condition is a disability if he has “a physical or

mental impairment that substantially limits one or more of [his]

major life activities.”      § 12102(2).         The ADA does not define

“major life activities.”     But EEOC regulations promulgated under

the ADA define “major life activities” as “functions such as caring

for oneself, performing manual tasks, walking, seeing, hearing,

speaking,    breathing,   learning,       and   working.”      29   C.F.R.   §

1630.2(I).     Riel must show that he has a physical impairment and

that it substantially limits major life activities.             Because Riel

points to fatigue related to his renal condition as causing his

substantial limitations, his evidence must show that his physical

condition of renal failure caused his fatigue.              An employer does

not violate the ADA when it fires an employee for inability to

perform any job function, however trivial, when that inability has

nothing to do with the employee’s disability.

     The record contains ample evidence to support a finding of

fact that Riel’s renal condition caused fatigue.               Riel offered

medical testimony supporting his motion for summary judgment that


                                      7
one symptom of his renal condition was fatigue.              Riel also offered

affidavits tending to show that the fatigue caused his inability to

meet the milestone deadlines.           As the parties agree that EDS fired

Riel   for   missing   the    milestone       deadlines,    Riel   has    offered

sufficient evidence to avoid summary judgment on this element.



                                         B.

       Riel must also demonstrate that he is a “qualified individual

with a disability.”       See §§ 12111(8), 12112(b)(5)(A).                He must

demonstrate that “with or without reasonable accommodation, [he]

can perform the essential functions of the employment position.”

Id. at § 12111(8).      The parties agree that Riel did not meet the

milestone deadlines. On the other hand, Riel’s evidence, viewed in

the light most favorable to him, shows that he can meet final

deadlines.       The   question    is    thus   whether     meeting   milestone

deadlines alone, without regard to final deadlines, is an essential

function of the systems engineer position.

       Congress did not specify which job functions are “essential”

under the ADA. It provided that whenever an employer gives written

descriptions of the essential functions of a job, that description

is entitled to substantial deference.               42 U.S.C. § 12111(8).

However, none of EDS’s written descriptions mention milestone

deadlines.       The EEOC regulations accompanying the ADA define

“essential   functions”      as   “the    fundamental      job   duties   of   the

employment position.” 29 C.F.R. § 1630.2(n). Though the term does

not    include   “marginal    functions,”       those   functions     that     are


                                         8
essential are not limited to those that are not marginal.            See id.

A number of types of evidence are relevant to whether a function is

“essential,” including:

     (i) The employer’s judgment as to which functions are
     essential;
     (ii) Written job descriptions prepared before advertising or
     interviewing applicants for the job; . . .
     (iv) The consequences of not requiring the incumbent to
     perform the function; . . .
     (vi) The work experience of past incumbents in the job; and/or
     (vii) The current work experience of incumbents in similar
     jobs.

Id. § 1630.2(n)(3).     Riel introduced evidence suggesting that only

final deadlines are important to whether a systems engineer can

function within the EDS structure.        Riel also introduced evidence

that EDS often adjusted milestone deadlines according to the

ongoing needs of other employees.          And, as noted, neither the

written   description   of   the   essential   functions    of   a   systems

engineer given to Riel nor the oral description given to Riel’s

physician included meeting milestone deadlines.       EDS now takes the

position that milestone deadlines are essential. Given the dispute

as to this material fact, Riel is entitled to present his evidence

to a jury.

     We do not here hold that the absence of milestone deadlines

from either list is conclusive.          On the contrary, neither list

included other obviously essential functions, such as regular job

attendance. Meeting all deadlines might fall into this category of

obviously essential tasks, absent other evidence.          But Riel’s non-

list evidence is sufficient under the plain language of the statute




                                     9
to raise an issue of fact as to whether meeting milestone deadlines

is essential to the position of a systems engineer.



                                      C.

      Given that Riel’s summary judgment evidence presents questions

of fact on the first two issues, we still must address whether Riel

has   proposed   a    “reasonable    accommodation”     to   his   disability.

Reasonable accommodation is an element of a prima facie case of

discrimination under the ADA, § 12111(8), and Riel thus bears the

burden   of   proof    of   reasonableness.        However,    a    reasonable

accommodation is “a method of accommodation that is reasonable in

the run of cases, whereas the undue hardship inquiry focuses on the

hardships imposed by the plaintiff’s preferred accommodation in the

context of the particular [employer’s] operations.” Barth v. Gelb,

2 F.3d 1180, 1187 (D.C. Cir. 1993), cert. denied, 114 S.Ct. 1538

(1994)    (interpreting      “reasonable     accommodation”        under    the

Rehabilitation Act) (emphasis original).

      Riel proposed two alternative accommodations to EDS: further

adjustment of the milestone deadlines and transfer to another

position within EDS that does not have milestone deadlines. Riel’s

summary judgment evidence tends to establish that he was capable of

meeting final deadlines and that he had always met them in the

past.    In support of his proposed accommodations, Riel offered

evidence in the summary judgment proceedings illustrating that EDS

often    transferred     employees    and   that   he    himself    had    been

transferred repeatedly.      At least one job that Riel had previously


                                      10
performed, teaching new systems engineers, had no deadlines at all.

Finally, Riel’s evidence suggests that EDS often relaxed milestone

deadlines for other employees who ran into unexpected difficulty

meeting them and that this caused no disruption to EDS so long as

the systems engineers finished project segments by the final

deadlines.       These facts, put forward by Riel, meet his burden to

propose “reasonable accommodations.”

       EDS argues it may prevail on summary judgment by demonstrating

that    Riel’s    proposed   accommodations     were    unreasonable.         EDS

contends that a relaxation of milestone deadlines would cause

disruption in its working structure, but this is for the trier of

fact.    EDS also argues that it could not transfer Riel because of

its policy against transferring employees on PIPs or whose ratings

were “below average.”        This contention turns the focus upon Riel’s

specific circumstances.          In so doing, it mistakes the burdens of

proof    allocated     to    the   parties;    Riel     need   only    show    an

accommodation reasonable “in the run of cases.”                The evidence of

reasonableness “in the run of cases” and undue hardship will often

be overlapping and resist neat compartmentalization.               Nonetheless,

they remain distinct inquiries even if asked of similar evidence.

       EDS   legally    enjoys     the    affirmative    defense      of   “undue

hardship.” But as EDS did not plead “undue hardship” and conceded

below that it was not defending on those grounds at the summary

judgment stage, our focus is limited to whether Riel has identified

accommodations reasonable “in the run of cases.”               As we conclude

that a trier of fact could conclude that neither adjustment of his


                                         11
milestone deadlines nor transfer to a teaching position without

such deadlines is unreasonable “in the run of cases,” we must find

that Riel has met his burden at this stage.           EDS may not place the

burden of proof of undue hardship on Riel merely by refusing to

plead the affirmative defense and then attacking his proposed

accommodations      as    unreasonable   in   his   specific   circumstance;

Congress’ intent was to place that burden on the employer.           Rather,

if   EDS   wishes    to    refute   Riel’s    proposed    accommodations   as

unreasonable in his specific circumstance, it must plead the

defense and offer evidence to support it.                Because EDS did not

raise this issue at the summary judgment stage, we are unable to

evaluate whether a question of fact exists on the issue, and we

remand to the district court for further proceedings consistent

with this opinion.

      REVERSED and REMANDED.




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