                     IN THE UNITED STATES COURT OF APPEALS

                                 FOR THE FIFTH CIRCUIT



                                           No. 95-31228



ANTHONY FREDERICK, individually
and on behalf of Adrien Rene Frederick,
                                                                               Plaintiff-Appellant,

                                               versus

GREAT LAKES CHEMICAL CORPORATION
FUNDED BENEFIT PLAN,
                                                                             Defendant-Appellee.



                          Appeal from the United States District Court
                             for the Western District of Louisiana
                                            (95-31228)

                                          October 31, 1996


Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:*

       Anthony Frederick individually and on behalf of Adrien Rene Frederick appeals to this court

the district court’s grant ing of summary judgment in favor of defendant/appellee regarding his

employment discrimination claim under Title I of the Americans with Disabilities Act, 42 U.S.C. §§




   *
   Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published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 Local Rule 47.5.4.
12101-12213 (“ADA”). The judgment of the district court is AFFIRMED for the reasons stated

below.



                                              FACTS

         Anthony Frederick is a Louisiana resident and an employee of OSCA, Inc., a subsidiary of

Great Lakes Chemical Corporation. The parent company administers Great Lakes Chemical

Corporation Funded Welfare Benefit Plan (the “Plan”), an employee benefit plan organized under

the Employee Retirement Income Security Act, 29 U.S.C. §§ 1001 et seq. (“ERISA”). Frederick is

a participant in the Plan; and his daughter, Adrien Rene Frederick, is a covered beneficiary.

CoreSource is the plan supervisor, providing technical service and advice to the Plan’s administrator.

         On January 7, 1994, Frederick filed his first complaint under ERISA against the Plan. The

suit claimed that the Plan denied welfare benefits to his daughter in violation of 29 U.S.C. § 1140.

His then eight-year-old daughter has been profoundly brain-damaged since birth and required

continuous skilled home nursing care which the Plan had provided in 1992 and 1993. In April 1993,

Adrien had surgery to insert a G-tube for feeding. After a medical review, CoreSource concluded

that Adrien no longer needed continual private care and that her medical needs could be met with

periodic home care services. Effective January 1, 1994, the Plan was amended to place a $15,000

per year ceiling on reimbursements for home health care. Frederick sought declaratory relief, the

costs of prior and future care for Adrien, and attorneys’ fees.

         The Plan moved for summary judgment on the ERISA claim. In opposition to the motion,

Frederick raised for the first time a claim of discrimination under the ADA. On February 1, 1995,

the district court granted Frederick’s motion for leave to file an amended complaint. The Plan


                                                  2
retorted that the cap has been evenhandedly applied to all participants and that it was not motivated

by a desire to discriminate against Frederick or anyone else. They also argued that Frederick’s ADA

claim should be dismissed because he did not file a discrimination charge with the Equal Employment

Opportunity Commission.

        On February 24, 1995, after the ADA claim was added, the Plan re-urged its summary

judgment motion on the ERISA claim and moved for dismissal or summary judgment on the ADA

claim. In connection with the ADA motion, the Plan submitted a statement of uncontested, material

facts. Frederick did not file a response to the ADA motion to dismiss. On November 2, 1995, the

district court granted the Plan’s summary judgment motion on the ERISA and ADA claims.

Frederick filed a timely notice of appeal, but it is limited to the ADA claim.

                                            DISCUSSION

        “Summary judgment is reviewed de novo, under the same standards the district court applies

to determine whether summary judgment is appropriate.” Amburgey v. Corhart Refractories Corp.,

936 F.2d 805, 809 (5th Cir. 1991). Summary judgment is proper when, viewing the evidence in the

light most favorable to the nonmovant, “there is no genuine issue as to any material fact and . . . the

moving party is entitled to judgment as a matter of law.” Id.; Fed. R. Civ. P. 56(c). If the moving

party meets the initial burden of establishing that there is no genuine issue, the burden shifts to the

nonmoving party to produce evidence of the existence of a genuine issue for trial. Celotex Corp. V.

Catrett, 477 U.S. 317, 321 (1986). A nonmovant “may not rest upon the mere allegations or denials

of [his] pleading, but [his] response, by affidavits or as otherwise provided in [Rule 56], must set forth

specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).




                                                    3
       In Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994) (en banc), this court stated, “[w]e

resolve fact ual controversies in favor of the nonmoving party, but only when there is an actual

controversy, that is, when both parties have submitted evidence of contradictory facts. We do not,

however, in the absence of any proof, assume that the nonmoving party could or would prove the

necessary facts.” Id. at 1075 (emphasis in original). Moreover, this court will affirm a summary

judgment whenever a nonmoving party “has failed to respond to the defendant’s evidence and indicate

a material issue that is unresolved.” Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995).

       In this case, Frederick did not challenge the Plan’s motion for leave to file its second summary

judgment motion and has offered no argument on appeal regarding his failure to respond to that

summary judgment motion. Instead, in arguing that the Plan violated his and Adrien’s rights under

the ADA, he relies on a set of uncontested facts that has been submitted with the Plan’s motion for

summary judgment.

       The set of facts upon which Frederick has relied and continues to rely may be summarized as

follows: In 1992, the Plan reimbursed Frederick for $151,032 in home health care costs; all other

beneficiaries received only $218,948.41.    In 1993, Frederick received $142,455, while all other

beneficiaries received o nly $195,416.05. Frederick was thus receiving more than 40% of all Plan

reimbursements for home health care for the years 1993 and 1994. As of January 1, 1994, the Plan

was amended to place a $15,000 per year cap on reimbursements for home care. The January 1,

1994, amendments to the Plan apply to all Plan participants. The January 1, 1994 amendments were

adopted with no intent to discriminate.

       The ADA prohibits discrimination against “a qualified individual with a disability because of

the disability of such individual with regard to job application procedures, the hiring, advancement,


                                                  4
or discharge of employees, employee compensation, job training and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a); Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396

(5th Cir. 1995).

           Under the ADA, a plaintiff may establish a claim of discrimination by presenting either direct

evidence of discrimination or by using the indirect method of proof set for Ti tle VII actions in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Daigle, 70 F.3d at 396. Frederick

has not offered any evidence of direct discrimination. Instead, he argues that the Plan failed in its

burden of showing that the January 1, 1994, amendment is a disability-based distinction. In essence,

Frederick advances his claim on a theory of “disparate impact.”1 Fatal to Frederick’s claim, however,

is the fact he has neither explicitly disputed the Plan’s assertion that, on its face, the cap applies to

all participants, nor submitted any evidence in opposition to the Plan’s summary judgment motion.2

In effect, he is only relying on the undisputed facts proffered by the Plan.

                                             CONCLUSION

           Frederick’s failure to submit any evidence of discrimination, and his failure to challenge the

Plan’s statement of uncontested facts, compels summary judgment in favor of the defendant as a

matter of law since no factual controversy exists. The judgment of the district court is AFFIRMED.




       1
        Under the disparate impact model, discrimination occurs when employment practices are
“facially neutral in their treatment of different groups but . . . in fact fall more harshly on one group
than another and cannot be justified by business necessity.” International Bhd. Of Teamsters v.
United States, 431 U.S. 324, n.15 (1977).
   2
      Since we resolve this case based upon the lack of a factual controversy, we do not reach the
merits of Frederick’s ADA claim concerning the limitation of his benefits as a disability based
distinction. Accordingly, discussion of the Supreme Court’s decision in Alexander v. Choate, 469
U.S. 287 (1985), is unnecessary.

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