     Case: 10-30719 Document: 00511459624 Page: 1 Date Filed: 04/28/2011




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

                                                 FILED
                                                                            April 28, 2011

                                     No. 10-30719                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



MARIA N. PICARD,

                                                   Plaintiff–Appellant,
v.

ST. TAMMANY PARISH HOSPITAL,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:08-CV-824


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Maria Picard filed suit against her former employer, St. Tammany Parish
Hospital, pursuant to the Americans with Disabilities Act. The jury returned a
verdict in favor of St. Tammany. Picard appeals, asserting error in the district
court’s instructions to the jury and asserting that the verdict lacks evidentiary
support. We affirm.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-30719

                                          I
      Picard worked as a transcriptionist at St. Tammany until November 2006.
As a transcriptionist, Picard’s duties included transcription in addition to tasks
such as assisting her co-workers and answering the phone. During her last five
years at St. Tammany, Picard was subject to annual performance reviews. Each
of these performance reviews rated her as competent or better. She also received
a merit pay-raise after each review.
      Picard has been diagnosed with Charcot-Marie-Tooth disease (CMT). Her
physician describes it as a condition that delays nerve impulse propagation. As
a result, Picard requested that she be permitted to use a dictation software
program, Dragon, which would allow her to limit her typing by speaking the
dictation. She also requested a quiet room in which to work. She testified at
trial that she had difficulty working, walking, shopping, and engaging in
activities requiring fine motor skills. She also stated that her friend took her
shopping and that increased concentration ameliorated her risk of tripping.
      To demonstrate her CMT’s medical relevance to St. Tammany, Picard
referenced her medical correspondence. In 2000, her doctor at the time, Dr.
Palopoli, wrote a letter to the hospital describing Picard’s CMT, as well as her
carpal tunnel syndrome and fibromyalgia. Dr. Palopoli also stated that, in light
of these conditions, he “would recommend from a medical standpoint” that
Picard receive a break every hour to stretch. St. Tammany’s policies already
allowed its transcriptionists to take breaks to stretch. Subsequently, in 2004,
Picard took a medical leave and had surgery to improve her carpal tunnel
syndrome. Her surgeon, Dr. Plauche, released her to work with no restrictions
on work, bending, walking or standing, sitting, lifting, carrying, pushing or
pulling, positioning, or repetitive actions.
      Approximately six months after the carpal tunnel surgery, and roughly
five years after the Palopoli letter, another of Picard’s doctors, Dr. Fischer, wrote

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a letter to St. Tammany. This letter stated that as a result of CMT, Picard’s
ability to perform her transcriptionist duties was “impaired.” Dr. Fischer wrote
that it was his “opinion” that this constituted a “significant handicap” for Picard,
and that it “should be taken into account in any measures of her job
performance.” Some eleven months later, Dr. Plauche wrote a letter stating that
Picard was “interested in obtaining the Dragon program for work.” Dr. Plauche
believed Dragon would be “beneficial” for her and would allow her to devote her
time to meeting her output requirements. St. Tammany did not provide Picard
with the Dragon software. It did permit her to use ExSpeak, which creates a
rough draft of a physician’s dictation. A transcriptionist then edits that draft.
After trying it, Picard told St. Tammany that she could not use ExSpeak, finding
it difficult and painful. Picard resigned from St. Tammany in November 2006.
At that time she thanked her supervisors and offered to “work per diem” for the
hospital in the future. She then began working as a clerk at another hospital.
      Picard subsequently filed suit against St. Tammany. Picard alleged that
she was disabled and that St. Tammany had violated the Americans with
Disabilities Act (ADA).1 At the conclusion of the trial, the jury found that Picard
was not a qualified individual with a disability under the ADA. Picard appeals
the jury instructions and the sufficiency of the evidence supporting the jury’s
verdict. Our jurisdiction over this appeal is properly vested pursuant to 28
U.S.C. § 1291.
                                           II
      Picard appeals the instruction given to the jury, contending that the jury
should have been instructed that “a per se violation of the ADA occurs when the
employer fails to engage in the required ‘interactive process,’ once an employee
requests an accommodation.” We review a district court’s refusal to provide a



      1
          42 U.S.C. § 12102 et seq.

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requested jury instruction for abuse of discretion.2               Given this “substantial
latitude,” refusal to give such a jury instruction “constitutes reversible error
‘only if the instruction 1) was a substantially correct statement of law, 2) was not
substantially covered in the charge as a whole, and 3) concerned an important
point in the trial such that the failure to instruct the jury on the issue seriously
impaired the party’s ability to present a given claim.’” 3
       The       ADA     protects    qualified       individuals   with   disabilities   from
discrimination.4 A “qualified individual with a disability” is “‘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.’”5 A “disability,” in turn, is: “‘(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (B)
a record of such an impairment; or (C) being regarded as having such an
impairment.’”6 Stressing the need for an individual to be substantially limited,
we have held that “[m]erely having an impairment, however, does not make one
disabled for purposes of the ADA.”7 That said, an employer’s failure to make
“‘reasonable accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability’” constitutes discrimination,
unless the accommodation would impose an “‘undue hardship’” on the business.8


       2
           Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 578 (5th Cir. 2004).
       3
        Id. (quoting United States v. McClatchy, 249 F.3d 348, 356 (5th Cir. 2001) (internal
brackets omitted)).
       4
           E.E.O.C. v. Chevron Phillips Chem. Co., L.P., 570 F.3d 606, 613-14 (5th Cir. 2009).
       5
           Id. at 614 (quoting 42 U.S.C. § 12111(8)).
       6
           Id. (quoting 42 U.S.C. § 12102(2)).
       7
           Id.
       8
           Id. at 613-14 (quoting 42 U.S.C. § 12112(b)(5)(a)).

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When a qualifying individual with a disability makes a request for an
accommodation, the ADA calls for an “interactive process” between employer and
employee: “‘a meaningful dialogue with the employee to find the best means of
accommodating that disability.’”9
       Picard requested that the district court instruct the jury that a failure to
engage in the interactive process, once an accommodation is requested,
constitutes a “per se” violation of the ADA. We have previously described a “per
se rule” as providing “an immutable principle” that specific conduct violates the
law.10 This is echoed by B LACK’S L AW D ICTIONARY, which provides the definitions
“[o]f, in, or by itself; standing alone, without reference to additional facts” and
“[a]s a matter of law.”11
       Given these definitions, Picard’s proposed per se jury instruction lacks
support from our prior holdings regarding the ADA and its interactive process.
We have observed that the “ADA’s regulations state that ‘it may be necessary for
the [employer] to initiate an informal, interactive process with the qualified
individual with a disability in need of the accommodation’ in order to craft a
reasonable accommodation.”12 Of course, that which “may be” necessary is not
universally required.          In fact, Picard’s proposed per se rule is ill-suited to
consideration of the interactive process. We have stated that “there 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




       9
           Id. at 621 (quoting Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 108 (1st Cir. 2005)).
       10
            Hills v. Henderson, 529 F.2d 397, 401 (5th Cir. 1976).
       11
            BLACK ’S LAW DICTIONARY 1178 (8th ed. 1999).
       12
         Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999) (quoting 29 C.F.R. §
1630.2(o)(3)).

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                                        No. 10-30719

interactive process.”13 This is so because the “interactive process is not an end
i[n] itself—it is a means to the end of forging reasonable accommodations.” 14
“The process must thus be viewed on a case-by-case basis.” 15
      Picard relies upon our statement regarding the interactive process in
E.E.O.C. v. Chevron Phillips Chemical Co., L.P. There, we stated that if an
employee satisfies her burden “to specifically identify the disability and resulting
limitations, and to suggest the reasonable accommodations,” as a result of “such
a request” “the employer is obligated by law to engage in an ‘interactive
process.’”16 Yet contrary to Picard’s contention, Chevron refers only to those
individuals who specifically identify their disability and the resulting
limitations. Moreover, Chevron indicates that not all impairments constitute
disabilities under the ADA.17 By contrast, Picard’s desired instruction would not
require a jury to consider whether an employee had a disability under the ADA,
an impairment, or neither before imposing liability on employers that fail to
enter the interactive process. Thus, Picard’s argument is unavailing.
      Further, insofar as Picard contends that requesting an accommodation is
a protected activity, regardless of whether she was ultimately disabled, she has
failed to cite to retaliatory measures taken in response to her request for an
accommodation.           Such a failure to provide “the reasons [s]he deserves the
requested relief” constitutes abandonment of an issue.18




      13
           Id. at 736.
      14
           Id.
      15
           Id.
      16
           570 F.3d 606, 621 (5th Cir. 2009).
      17
           Id. at 614.
      18
           Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

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                                                   III
       Picard also contends that the jury’s verdict lacks sufficient evidentiary
support. The jury found that Picard was not a “qualified individual with a
disability under the ADA.” In reviewing the evidentiary support for a jury
verdict, “[u]nless the evidence is of such quality and weight that reasonable and
impartial jurors could not arrive at such a verdict, the findings of the jury must
be upheld.”19 Our inquiry examines the time of the adverse employment action,
not the present.20
       As noted above, an ADA disability is: “(A) a physical or mental impairment
that substantially limits one or more of the major life activities of such
individual; (B) a record of such an impairment; or (C) being regarded as having
such an impairment.”21 For the jury to determine that Picard was disabled,
proof of an impairment is insufficient—for instance, Dr. Fischer’s statement that
Picard’s ability to perform her transcription duties was “impaired.” Instead, an
impairment must substantially limit a major life activity, and we have noted
that the “ADA’s implementing regulations provide a non-exhaustive list of major
life activities, including ‘caring for oneself, performing manual tasks, walking,
seeing, hearing, speaking, breathing, learning, and working.’” 22 In evaluating
whether a limitation is “substantial,” “the EEOC advises that courts should
consider: ‘([i]) the nature and severity of the impairment, (ii) the duration or
expected duration of the impairment; and (iii) the permanent or long term




       19
        Ham Marine, Inc. v. Dresser Indus., Inc., 72 F.3d 454, 459 (5th Cir. 1995) (citing
Chem. Distribs., Inc. v. Exxon Corp., 1 F.3d 1478, 1483 (5th Cir. 1993)).
       20
            Chevron Phillips Chem. Co., L.P., 570 F.3d at 618.
       21
            Id. at 614 (quoting 42 U.S.C. § 12102(2)).
      22
            Id. (quoting 29 C.F.R. § 1630.2(i)).

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impact, or the expected permanent or long term impact of or resulting from the
impairment.’” 23
      On appeal, Picard contends that she is disabled within the meaning of the
ADA because of her difficulties working, walking, shopping, and with her fine
motor skills. Here, we need not address whether these all constitute “major life
activities,” since a reasonable jury could have concluded that none of Picard’s
limitations were substantial. Regarding working, the jury heard evidence of
Picard’s positive performance reviews and her merit raises. She also offered to
continue to work at the hospital in her resignation letter. With respect to
walking, Picard testified that “pa[ying] attention when I walked” was sufficient
to ameliorate her walking problems. Picard testified that she had difficulty
shopping at the time of the trial, but that her friend would take her shopping at
the time she was requesting an accommodation. She also testified that her lack
of fine motor skills led her to drop items. Yet, Picard testified that she was able
to perform her subsequent job—including pulling apart charts and filing the
components accordingly—“[f]airly well.” Moreover, the jury heard her testimony
regarding her typing proficiency. As a result, reasonable and impartial jurors
could have concluded that Picard was not a qualified individual with a disability
within the meaning of the ADA.
                                       *        *           *
      We AFFIRM.




      23
           Id. at 614-15 (quoting 29 C.F.R. § 1630.2(j)).

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