     Case: 12-30843       Document: 00512205250         Page: 1     Date Filed: 04/11/2013




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

                                                                            FILED
                                                                           April 11, 2013
                                       No. 12-30843                        Lyle W. Cayce
                                                                                Clerk



SUE BELL,

                                                  Plaintiff - Appellant

v.

HERCULES LIFTBOAT COMPANY, L.L.C.,

                                                  Defendant - Appellee




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                                 No. 3:11-CV-332



Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:*
       In 2011, Sue Bell sued Hercules Liftboat Co., LLC (“Hercules”), claiming
that the company fired her because of her disability in violation of the Louisiana
Employment Discrimination Law (“LEDL”).                    The district court awarded



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30843

summary judgment to Hercules on the ground that Bell was not “otherwise
qualified” within the meaning of the statute, reasoning that by her own words,
she performed her work only by delegating it to two subordinates. We affirm.


                                                 I.
       In March 2007, Hercules hired Sue Bell to serve as the cost
controller/estimator in its Gulf of Mexico Dry Dock Department, located in
Lafayette, Louisiana. In November 2009, Bell was diagnosed with breast cancer.
Following successful surgery in March 2010, Bell went on disability leave. In
July 2010, Bell returned to work cancer-free but on a five-year medication
regimen. She later testified that her medication “made it, basically, impossible
to work,” causing her to delegate her job responsibilities to her two subordinates.
       In January 2011, Hercules advised Bell that it was eliminating her
position. Bell sued Hercules in state court, claiming that it had fired her
because of her medical disability in violation of the LEDL. The statute provides
that “[n]o otherwise qualified disabled person shall, on the basis of a disability,
be subjected to discrimination in employment,”1 defining an “otherwise qualified
disabled person” as “a disabled person who, with reasonable accommodation, can
perform the essential functions of the employment position that such person
holds or desires.”2 Hercules removed Bell’s action to federal court.
       In her original complaint, Bell pleaded the required elements of a LEDL
claim, alleging that Hercules had terminated her because of her cancer and
cancer treatment, and that it had “refused to reasonably accommodate her



       1
           LA. REV. STAT. § 23:323(A).
       2
         Id. § 23:322(8). The statute also provides that a “reasonable accommodation means
an adjustment or modification . . . which would not impose an undue hardship on the
employer,” id. § 23:322(9), and that “essential functions” include only “the fundamental job
duties of the employment position[,] . . . not marginal functions of the position,” id. § 23:322(5).

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                                       No. 12-30843

disability although [it] had the means to [do so].” However, in September 2011,
Bell amended her complaint to add ERISA claims against Hercules and its
parents and insurers — claims upon which Bell apparently thought she could
succeed by demonstrating that she was completely unfit to work after returning
to Hercules in July 2010.3
       In her amended complaint and subsequent pleadings, Bell represented,
among other things, that her post-cancer medical treatment “nearly destroyed
. . . [her] concentration skills;” that “because of [her] health issues, [she] was
attempting to have her subordinate[s] . . . perform . . . her job duties;” that she
was “unable to perform all the material duties of [her] regular occupation;” that
she was “not able to perform eighty percent of her job duties;” and that “the
medical evidence is undisputed that . . . [she] was disabled from the time she
began treating [sic] for cancer in early 2010.” In an affidavit attached to one of
the pleadings, Bell’s professional acquaintance attested that Bell’s “difficulty
with her vision and headaches . . . incapacitates any function on computers;”
that Bell “is experiencing inability to mentally focus on any detail [sic] matter;”
that Bell is “not employable;” and that Bell has suffered her symptoms “without
resolve” since she began taking post-cancer medication in the spring of 2010.
       Moreover, in her deposition, Bell acknowledged that she was “not able to
perform any job . . . since [she] started on [her] post cancer medications;” that
the side-effects from the medication “made it, basically, impossible to work;” that
without her two subordinates, she “wouldn’t have been able to accomplish
anything;” that “basically, [her] job was getting done because of [them];” that she
would be “completely unable to do any kind of work for at least the next three-


       3
         As the district court observed, Bell’s efforts were futile, based on a misapprehension
of Hercules’s ERISA-governed insurance plan. While Bell would have been entitled to
disability coverage if she could demonstrate that, upon returning to Hercules, she (i) could not
perform her job duties and (ii) earned less than 80% of her pre-disability salary, there is no
evidence that Bell’s salary changed as a result of her disability leave.

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                                        No. 12-30843

plus years because [she was on] a five year course of treatment;” and that after
being terminated, she concluded she was ineligible for employment assistance
because “you have to be ready, willing, and able to go to work and I knew I
couldn’t honestly do that.”
       In February 2012, the district court dismissed Bell’s ERISA claims against
the Hercules defendants and granted summary judgment to the insurers,
leaving Hercules as the sole defendant. In June, Hercules moved for summary
judgment on Bell’s LEDL disability discrimination claim, urging that the record
conclusively established that Bell was not “otherwise qualified” at the time of
her termination. The district court agreed and granted Hercules’s motion,
reasoning that “[Bell’s] numerous admissions establish beyond dispute that her
utility had diminished to the point that she could not perform her job functions
without the employees working under her doing substantially all of the work,
reducing Bell to a supervisory capacity.” The court also observed that Bell failed
to “proffer what type of reasonable accommodation might have been
implemented,” noting that though Bell “presumably . . . want[s] to maintain the
status quo of having two employees perform her job duties for her,” such an
arrangement could not reasonably be demanded of an employer. Bell appeals
only her LEDL claim.4


                                              II.
       This Court reviews a district court’s award of summary judgment de novo,
applying the same standard as the district court.5 “Summary judgment is proper
if the evidence shows that there is no genuine issue as to any material fact and


       4
          Below, Bell also asserted claims for retaliation, unpaid wages, and intentional
infliction of emotional distress. However, as Bell does not brief or mention these claims on
appeal, they are waived.
       5
           Jenkins v. Cleco Power, LLC, 487 F.3d 309, 313 (5th Cir. 2007).

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                                         No. 12-30843

that the moving party is entitled to judgment as a matter of law.”6 Though the
moving party bears the burden of establishing the absence of a genuine fact
issue, it can discharge this obligation by pointing out that the non-moving party
“has failed to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof.”7 The burden then shifts to the
non-movant to “produce evidence or designate specific facts showing the
existence of a genuine issue for trial.”8 The non-movant cannot rely on naked,
unsubstantiated allegations to survive summary judgment.9


                                              III.
       To establish a disability discrimination claim under the LEDL, a plaintiff
must show, among other things, that she was (1) “disabled” and (2) “otherwise
qualified” at the time of the complained-of employment action.10 Here, Hercules

       6
           Id.
       7
           Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
       8
           Engelstrom v. First Nat. Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing
Celotex, 477 U.S. at 322–34); see also Celotex, 477 U.S. at 324 (“In cases like the instant one,
where the nonmoving party will bear the burden of proof at trial on a dispositive issue . . . Rule
56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits,
or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific
facts showing that there is a genuine issue for trial.’”).
       9
         Grimes v. Tex. Dep’t. of Mental Health and Mental Retardation, 102 F.3d 137, 139–40
(5th Cir. 1996) (collecting cases).
       10
          E.g., Lindsey v. Foti, 81 So. 3d 41, 44 (La. Ct. App. 2011). The plaintiff must also
establish that her employer took the adverse employment action “because of [her] disability.”
Hook v. Georgia-Gulf Corp., 788 So. 2d 47, 53 (La. Ct. App. 2001). As the LEDL essentially
tracks the Americans with Disabilities Act (“ADA”), both parties appear to assume that the
McDonnell-Douglas burden-shifting framework should govern our summary judgment analysis
on this ultimate question of intentional discrimination. Cf. Daigle v. Liberty Life Ins. Co., 70
F.3d 394, 396 (5th Cir. 1995) (applying McDonnell-Douglas framework to ADA claim). Alas,
it is not clear that Louisiana courts apply McDonnell-Douglas to LEDL disability
discrimination claims. See, e.g., Lindsey, 81 So. 3d at 44; Hook, 788 So. 2d at 53. But we need
not address this complication today, as we can decide the case on the threshold ground that
Bell is not “otherwise qualified” — a showing she must make whether or not McDonnell-

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concedes that Bell was disabled but argues that her admissions preclude her
from demonstrating that, at the time of her termination, she could “perform the
essential      functions    of     [her]    employment     position”   with   “reasonable
accommodation” — as required to render her “otherwise qualified.”
      Federal courts have confronted essentially the same argument in suits
brought under the Americans with Disabilities Act (“ADA”), in which a plaintiff
bears the initial burden of proving that she could, “with or without reasonable
accommodation, . . . perform the essential functions of [her] employment
position.”11 In Cleveland v. Policy Management Systems Corp.,12 the Supreme
Court held that while an employee’s representation of “total disability” in an
application for Social Security Disability Insurance (“SSDI”) benefits does not
automatically estop her from subsequently filing an ADA suit, “[she] cannot
simply ignore the apparent contradiction that arises out of the earlier SSDI total
disability claim[,] [but] must proffer a sufficient explanation.”13 In Reed v.
Petroleum Helicopters Inc.,14 this Circuit clarified its understanding of Cleveland,
observing that while an employee’s boilerplate representation of “total disability”
in a benefits application “may be a legal conclusion” that can, through an
adequate explanation, be reconciled with a subsequent ADA suit,15 an employee’s
“specific factual statements” that she was unable to perform her essential job
duties at the time of the adverse employment action entitle the employer to




Douglas applies. Compare Daigle, 70 F.3d at 396, with Hook, 788 So. 2d at 53.
      11
           42 U.S.C. § 12111(8).
      12
           526 U.S. 795 (1999).
      13
           Id. at 806.
      14
           218 F.3d 477 (5th Cir. 2000).
      15
           Id. at 479.

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summary judgment, at least absent a particularized showing that reasonable
accommodations were possible.16
       A recent Louisiana appellate decision, Smith v. Thurman Oils, Inc.,17
indicates that Louisiana courts will follow Cleveland and its Fifth Circuit
progeny in assessing whether a plaintiff’ is “otherwise qualified” under the
LEDL.18 The plaintiff in Smith represented in an SSDI application that his
myotonic dystrophy prevented him from functioning as a trucker, claiming that
he had “no hand grip, backaches, soreness of muscles, inability to lift light or
heavy objects, [and] numbness in [his] arms and hands.”19 Relying on Cleveland,
Reed, and other federal ADA cases, the Smith court concluded that the plaintiff’s
representations in his application for SSDI benefits “completely undermine his
statements at deposition that he was capable of performing [the essential duties
of] his job,” and that his “failure to reconcile the different statements provides
a[] . . . basis for granting of the motion for summary judgment.”20
       Here, the unchallenged employment description for Bell’s former position
provides that her “[e]ssential [d]uties” included:
       supervis[ing] all dry dock management protocols, conduct[ing] daily
       communications and support to all dry dock vessel managers and
       dry dock personnel, conduct[ing] daily analytical review of all
       project tracking software[] and hard copy file tracking, supervis[ing]
       all electronic and hard copy files, perform[ing] daily reporting and
       support to field personnel and management, [and] resolv[ing] issues

       16
            Id. at 479–80.
       17
            951 So. 2d 359 (La. Ct. App. 2006).
       18
         See id. at 363–64; see also, e.g., Thomas v. La. Casino Cruises, Inc., 886 So. 2d 468,
470 (La. Ct. App. 2004) (noting that the LEDL is “similar to the Americans with Disabilities
Act,” and that “[Louisiana] courts have relied upon [the ADA] and the interpreting federal
jurisprudence” in construing the LEDL).
       19
            951 So. 2d at 363 (internal alterations omitted).
       20
            Id. at 364.

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       to improve project cost and time efficiency while improving vessel
       assets.
Yet according to Bell’s pleadings, testimony, and exhibits, her post-cancer
medical treatment “nearly destroyed . . . [her] concentration skills,”
“incapacitated any function on computers,” and rendered her “unable to perform
all the material duties of [her] regular job,” “[un]able to perform eighty percent
of her job duties,” and “[un]able to perform any job.”
       Bell attempts to bridge the inconsistency between these detailed factual
admissions and her current litigation posture by noting that she returned to
work in June 2010, which, according to Bell, demonstrates that she was able to
function in her job “with the accommodation of her underlings.” But as this
Court has observed in the ADA context, the mere fact that an employee is
“physically able to return to work” does not establish her as “qualified” for
purposes of defeating an employer’s motion for summary judgment.21 Moreover,
the fact that Bell’s subordinates “perform[ed] [her] job duties” after she returned
to Hercules is hardly evidence that the company could have furnished reasonable
accommodations; rather, “if [an employee] can’t perform the essential functions
of [her] job absent assigning those duties to someone else . . . [,][she] cannot be
reasonably accommodated as a matter of law.”22 Under Cleveland and its Fifth
Circuit and Louisiana state court progeny, Hercules is entitled to summary
judgment.23


       21
            Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258–59 (5th Cir. 2001).
       22
            Robertson v. Neuromedical Ctr., 161 F.3d 292, 295 (5th Cir. 1998).
       23
          Indeed, Hercules has a stronger case than the employers in Reed and Smith.
Whereas the plaintiffs in those cases made their inconsistent representations in SSDI
applications to the Social Security Administration, Bell made the vast majority of her
admissions in pleadings, exhibits, and testimony she submitted in this litigation to support
her now-defunct ERISA claims. Bell’s representations thus not only serve as evidence that she
cannot satisfy a necessary element of her LEDL case, but arguably estop her from claiming
otherwise in this appeal. See, e.g., Ecuador v. Connor, — F.3d — , 2013 WL 539011 at *1 (5th

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                                             IV.
       We AFFIRM the judgment of the district court.




Cir. 2013) (“[A] party may be estopped from asserting a position in a judicial proceeding where
it has previously persuaded a court to adopt a clearly contrary position to the disadvantage
of an opponent.”) (citation omitted).

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