     Case: 18-50903      Document: 00515057670         Page: 1    Date Filed: 07/31/2019




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


                                      No. 18-50903
                                                                                FILED
                                                                            July 31, 2019
                                                                           Lyle W. Cayce
RONALD GONZALEZ,                                                                Clerk

              Plaintiff - Appellant

v.

UNITED PARCEL SERVICE,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:15-CV-986


Before DAVIS, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Ronald Gonzalez sued United Parcel Service, Inc. (UPS) for, inter alia,
discriminating against him in violation of the Americans with Disabilities Act
(ADA). The district court granted summary judgment to UPS. It concluded
that Gonzalez did not establish a prima facie claim of discrimination because
he was not a “qualified individual” under the statute. We agree and 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-50903
                                       I.
      Gonzalez worked for UPS as a “franchise sales consultant.” This was a
full-time desk job, requiring Gonzalez to help service UPS customers. To sat-
isfactorily do this, Gonzalez admitted that he needed to have the cognitive abil-
ity to follow directions, adhere to routine, exercise judgment, concentrate, draw
upon memory, and make logical conclusions.
      In April 2013, Gonzalez took leave from work to have surgery. Perhaps
as a result of previous surgeries, he had developed a condition called “complex
regional pain syndrome”—manifesting as chronic pain in his right hand. Un-
like previous occasions on which he took leave, his recovery period was pro-
longed because he and his doctors had difficulty effectively managing his pain.
      Approximately nine months into his leave, UPS sent Gonzalez a letter.
This letter said two things. First, it informed Gonzalez that UPS had a policy
that employees absent for 12 months are administratively terminated. Second,
it informed Gonzalez that he could request accommodations for any ADA-cov-
ered disabilities.
      After receiving this letter, Gonzalez requested to return to work. He felt
that, with the proper accommodations, he could perform his duties. UPS re-
quested that Gonzalez provide a (1) doctor’s evaluation and (2) self-assessment
of Gonzalez’s abilities and proposed accommodations.
      After an examination, Gonzalez’s doctor concluded that Gonzalez was
not capable of performing his job functions. Specifically, the doctor concluded
that Gonzalez was incapable of “continuous repetitive movements of [his] up-
per extremities” and would be “unable to work for 4 hours or greater.” Fur-
thermore, Gonzalez exhibited a “decreased ability to make decisions due to




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                                       No. 18-50903
medication prescribed” and “decreased ability of concentration.” 1 In all, Gon-
zalez’s condition left him with limitations on his ability to sit, stand, engage in
repetitive motions, concentrate, and make decisions. Gonzalez never chal-
lenged his doctor’s conclusions.
       For his part, Gonzalez filled out an “accommodation checklist,” in which
he said that his medication affected his “retention, focus, concentration and the
ability to make decisions.” He repeated his doctor’s conclusion that he could
not work more than four hours at a time. To compensate for these difficulties,
he requested the following accommodations: (1) a part-time position; with (2)
an ergonomic work station; and (3) various minor accommodations like more
breaks, a quieter work environment, the ability to call doctors during work
hours, and occasional time off for medical treatment. Notably, he could not
identify any other jobs for which he thought he could perform the essential
functions.
       With all of the paperwork completed, UPS met with Gonzalez to discuss
its conclusions. UPS informed him that it could not accommodate his disabil-
ity. While it could provide an ergonomic work station, it had no part-time jobs
available. Moreover, even if it did have such positions available, Gonzalez’s
diminished cognitive abilities disqualified him from the core requirements of
his job. So, approximately a year into his leave, UPS terminated Gonzalez’s
employment. 2



       1 In his deposition, he recalled that his medication caused him “occasional drowsi-
ness.” And in contemporaneous statements to the Social Security Administration, he said
that the medications had various side effects, including loss of focus, concentration, and re-
tention; lightheadedness; fatigue; and loss of coordination. The sum total of these ailments
is that he felt he did “not have the physical and mental ability to perform” his job.
       2 The termination letter was not absolute. UPS said: “Know that we will continue to
look for such available position for up to six (6) months. If your condition or abilities change
in the future, however, or if you become aware of an open position that you believe you are
capable of performing, please contact me so that we may re-evaluate your situation.”
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                                 No. 18-50903
       Gonzalez filed a complaint with the EEOC and then sued UPS for dis-
crimination under the ADA. The district court entered summary judgment for
UPS.
                                       II.
       We review the grant of summary judgment de novo. “The court shall
grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. P. 56(a). Gonzalez identifies a number of issues, but they
all boil down to one question: whether he provided enough evidence to make a
prima facie case of discrimination. He did not.
       The ADA forbids discrimination on “the basis of disability.” 42 U.S.C.
§ 12112(a). “To establish a prima facie discrimination claim under the ADA, a
plaintiff must prove: (1) that he has a disability; (2) that he was qualified for
the job; [and] (3) that he was subject to an adverse employment decision on
account of his disability.” EEOC v. LHC Grp., Inc., 773 F.3d 688, 697 (5th Cir.
2014) (alteration in original) (quoting Zenor v. El Paso Healthcare Sys., Ltd.,
176 F.3d 847, 853 (5th Cir. 1999)).
       Gonzalez’s case fails the second element. He was not a “qualified indi-
vidual” under the statute because he could not “with or without reasonable
accommodation, [] perform the essential functions of the employment posi-
tion.” 42 U.S.C. § 12111(8).
       To begin, Gonzalez concedes that he could not perform his job without
reasonable accommodation. So all that’s left is to consider his proposed accom-
modations. We conclude, as did the district court, that his proposed accommo-
dations were either unreasonable or would not address his limitations.
       Gonzalez’s physical and cognitive impairments directly affected the core
requirements of his job. Physically, Gonzalez was incapable of working more
than four hours a day, and would have difficulty making repetitive arm, hand,
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                                 No. 18-50903
and wrist movements while seated. That is disqualifying for a full-time desk
job requiring computer work. Gonzalez agrees. He admitted that he would not
be able to return to his old job and perform it as capably—or service as many
customers as well—working only four hours a day. UPS would have had to
divide some of his accounts and distribute them to others. And Gonzalez’s pro-
posed accommodations did not fully address his physical impairments. Things
like the ergonomic work station and additional breaks—which UPS was will-
ing to provide—would help alleviate only some of his physical difficulties. Even
with these accommodations, Gonzalez still would not be able to work for more
than four hours at a time.
      There is no evidence that UPS had any part-time positions available that
were suitable for Gonzalez—or indeed evidence that any such position ever ex-
isted. See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315–16 (5th Cir. 2007)
(“The plaintiff bears the burden of proving that an available position exists
that he was qualified for and could, with reasonable accommodations, per-
form.”) (citing Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 & n.14 (5th
Cir. 1997)). He could not name any employees who worked part-time in his
position. And he only asserted, without supporting evidence, that “[b]ased on
[his] past experience,” such part-time positions could exist.
      His request for part-time work would require UPS to essentially create
a new position for him. That is not a reasonable accommodation required by
the ADA. Foreman, 117 F.3d at 810 (“For the accommodation of a reassign-
ment to be reasonable, it is clear that a position must first exist and be va-
cant.”).
      As for his cognitive problems, Gonzalez did not propose any accommoda-
tions to help alleviate his problems with retention, focus, concentration, and
the ability to make decisions. Thus, even if UPS could provide him with a part-
time job, Gonzalez would have been unable to meet its requirements.
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                                 No. 18-50903
      Gonzalez responds by saying that his cognitive problems were only side
effects of the medication that he was taking. But, at the time, taking other
medications was not an option suggested by Gonzalez or his doctor. And the
fact that sometime after his termination he began different treatment does not
alter whether he was “qualified for the job at the time of his termination.” Moss
v. Harris County Constable Precinct One, 851 F.3d 413, 418 (5th Cir. 2017).
      Gonzalez’s final contention is based on process—he alleges he was denied
an “interactive process” to discuss his disability and potential accommodations.
See 29 C.F.R. § 1630.2(o)(3) (“[The interactive] process should identify the pre-
cise limitations resulting from the disability and potential reasonable accom-
modations that could overcome those limitations.”). See also EEOC v. Chevron
Phillips Chem. Co., LP, 570 F.3d 606, 622 (5th Cir. 2009) (“Under the ADA,
once the employee presents a request for an accommodation, the employer is
required to engage in the interactive process so that together they can deter-
mine what reasonable accommodations might be available.”) (citation omitted).
      But nothing in the record indicates that UPS, “instead of engaging in the
interactive process that the ADA requires, simply refused to consider [Gonza-
lez’s] request for accommodation.” Chevron, 570 F.3d at 622. To the contrary,
UPS informed Gonzalez about his ADA rights and solicited input from both
Gonzalez and his doctor. It gathered information about Gonzalez’s medical
limitations and his proposed accommodations. It held a meeting with Gonzalez
about its conclusions, which Gonzalez did not protest at the time. And it con-
tinued to look for open positions for six months after that meeting.
      Gonzalez contends that the process was not interactive because UPS
simply read over the checklist and informed him that it could not accommodate
his disability. But this ignores that Gonzalez also had a role to play in that
meeting. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 735 (5th Cir. 1999)
(“The EEOC’s interpretive guidelines . . . stress that the interactive process
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                                 No. 18-50903
requires the input of the employee as well as the employer.”) (citations omit-
ted). A truly interactive process is a “reciprocal process” in which both em-
ployer and employee contribute—“not one that ends with ‘the first attempt at
accommodation,’ but one that ‘continues when the employee asks for a different
accommodation.’” Dillard v. City of Austin, 837 F.3d 557, 562–63 (5th Cir.
2016) (emphasis added) (quoting Humphrey v. Memorial Hosps. Ass’n, 239 F.3d
1128, 1138 (9th Cir. 2001)).
                                      ***
      The only evidence in the record indicates that Gonzalez suffered pain
that limited his physical abilities—and the medication he used to manage this
pain impaired his cognitive abilities. No accommodations could ameliorate his
cognitive disabilities, and his proposal to redress his physical disabilities was
not a reasonable accommodation, but the creation of a new position altogether.
      Accordingly, we affirm.




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