                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT

                        _____________________

                             No. 01-11280
                        _____________________



     JANIS A. STALCUP


                                     Plaintiff - Appellant

          v.

     COMMUNICATION WORKERS OF AMERICA, LOCAL 6203


                                     Defendant - Appellee

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
                           (5:00-CV-221)
_________________________________________________________________
                           June 13, 2002


Before KING, Chief Judge, PARKER, Circuit Judge, and ELLISON,
District Judge.*

PER CURIAM:**

     In federal district court, Plaintiff-Appellant Janis A.

Stalcup asserted a claim of disability discrimination pursuant to


     *
        District Judge of the Southern District of Texas,
sitting by designation.
     **
        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that this opinion should not be published and is not precedent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.
the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et

seq. (1994).    Stalcup appeals from the district court’s grant of

summary judgment in favor of Defendant-Appellee the Communication

Workers of America.     For the following reasons, we AFFIRM the

judgment of the district court.

                  I.   Factual and Procedural History

     Janis A. Stalcup began her employment with Southwestern Bell

Telephone Company (“SWB”) in July 1977.     During her employment

with SWB, Stalcup was a member of the Communication Workers of

America (“CWA”), the collective bargaining representative for SWB

employees.     Over the course of her employment, Stalcup suffered

from a condition known as Multiple Chemical Sensitivity.

According to Stalcup, this condition led to chronic sinusitis,

upper respiratory infections, sinus headaches, migraines,

seizures, difficulty sleeping, chronic diarrhea, and colon

spasms.   These medical problems caused Stalcup to be absent from

work on many occasions.     On July 9, 1993, Stalcup was terminated

from her job as a supplies attendant because of unsatisfactory

attendance.

      Stalcup alleges that her attendance problems and eventual

termination were caused, at least in part, by CWA’s

discriminatory behavior.     Specifically, Stalcup asserts that CWA

engaged in discrimination prohibited by the Americans with

Disabilities Act of 1990 (the “ADA”) by refusing to file, appeal,



                                   2
or arbitrate Stalcup’s grievances claiming disability

discrimination, by refusing to secure favorable accommodations

for Stalcup under the ADA, and by failing to discipline CWA

members regarding discriminatory acts against Stalcup.    Stalcup

filed charges of disability discrimination with the Equal

Employment Opportunity Commission (the “EEOC”) against both SWB

and CWA.    Stalcup received a letter from the EEOC, dated April 7,

2000, informing her of her right to sue CWA.    Stalcup filed suit

against CWA in federal district court on July 7, 2000.1    CWA

moved for summary judgment on April 16, 2001, and the district

court granted summary judgment in favor of CWA on September 4,

2001.    The district court concluded that Stalcup failed to

demonstrate that she is a “qualified individual with a

disability” under the ADA and, in the alternative, failed to

establish a prima facie case of disability discrimination by CWA.

Stalcup timely appealed to this court.

              II.   Summary Judgment Standard of Review

     We review a grant of summary judgment de novo, applying the

same standards as the district court.    Chaney v. New Orleans Pub.

Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999).       Summary

judgment is proper when “there is no genuine issue as to any

material fact and [] the moving party is entitled to a judgment

     1
        Stalcup sued SWB in a separate lawsuit filed in
September 1995. That suit eventually settled. A third-party
complaint filed in this case by CWA against SWB was voluntarily
dismissed on March 26, 2001.

                                  3
as a matter of law.”    FED. R. CIV. P. 56(c).    We view the evidence

in a light most favorable to the non-movant.        Coleman v. Houston

Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).       However,

if the moving party presents sufficient evidence to support

summary judgment, the non-movant must go beyond the pleadings and

come forward with specific facts indicating a genuine issue for

trial in order to avoid summary judgment.        Celotex Corp. v.

Catrett, 477 U.S. 317, 324 (1986).

               III.    Stalcup’s ADA Claim Against CWA

     The ADA prohibits discrimination by a “covered entity”

against “a qualified individual with a disability because of the

disability of such individual in regard to job application

procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions,

and privileges of employment.”    42 U.S.C. § 12112(a).     A “covered

entity” includes a “labor organization.”     Id. at § 12111(2).     The

parties do not dispute that the expansive discrimination claims

alleged by Stalcup fall within the purview of the ADA because

they relate to “job application procedures, the hiring,

advancement, or discharge of employees, employee compensation,

job training, and other terms, conditions, and privileges of

employment.”   In response to Stalcup’s claims, CWA argues that

the district court was correct in concluding: (1) that Stalcup is

not a “qualified individual with a disability” under the ADA and



                                   4
(2) that, even if Stalcup is a “qualified individual with a

disability,” she fails to establish a prima facie case of

disability discrimination.

     A. Elements of a Prima Facie Case of Discrimination by a
     Union

     Neither this court nor any of our sister courts of appeals

has specified the elements of a prima facie case for

discrimination by a union in the context of the ADA.   However, we

have previously recognized that Title VII of the Civil Rights Act

of 1964 (“Title VII”) and the ADA are similar in their language,

purposes, and remedial structures.2   Flowers v. S. Reg’l

Physician Servs. Inc., 247 F.3d 229, 234 (5th Cir. 2001).

Because of this similarity, we regularly borrow from Title VII

jurisprudence when analyzing ADA claims.   See, e.g., id. at 234-

35; Miller v. Pub. Storage Mgmt., Inc., 121 F.3d 215, 218 (5th

Cir. 1997); Buchanan v. City of San Antonio, 85 F.3d 196, 200


     2
        Title VII provides that it is unlawful for an employer:
          (1) to fail or refuse to hire or to discharge
          any individual, or otherwise to discriminate
          against any individual with respect to his
          compensation, terms, conditions, or
          privileges of employment, because of such
          individual’s race, color, religion, sex, or
          national origin; or
          (2) to limit, segregate, or classify his
          employees or applicants for employment in any
          way which would deprive or tend to deprive
          any individual of employment opportunities or
          otherwise adversely affect his status as an
          employee, because of such individual's race,
          color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a) (1994).

                                5
(5th Cir. 1996); Daigle v. Liberty Life Ins. Co., 70 F.3d 394,

396 (5th Cir. 1995).   Thus, we now turn to Title VII

jurisprudence for assistance in determining the elements of

Stalcup’s prima facie case.

     The Seventh Circuit, in Bugg v. International Union of

Allied Industrial Workers of America, Local 507, 674 F.2d 595

(7th Cir. 1982), first articulated the elements of a prima facie

case of discrimination by a union.     Under Bugg, a plaintiff

establishes a prima facie case against a union by showing: “(1)

that the [employer] committed a violation of the collective

bargaining agreement with respect to the plaintiff; (2) that the

[union] permitted that breach to go unrepaired, thus breaching

its own duty of fair representation; and (3) that there was some

indication that the [union’s] actions were motivated by racial

animus.”   Id. at 598 n.5.    In analyzing Stalcup’s prima facie

case of discrimination, the district court in this case applied

the Bugg elements.

     Stalcup argues that, instead of analyzing her prima facie

case under the Bugg elements, the district court should have

looked for guidance from the Supreme Court’s opinion in Goodman

v. Lukens Steel Co., 482 U.S. 656 (1987).     In Goodman, African-

American employees asserted racial discrimination claims under

Title VII against their union.     Id. at 658-59.   The employees

argued that the union discriminated against them by repeatedly

failing to include assertions of racial discrimination in

                                   6
grievances filed with their employer.   Id. at 666.   The Court

concluded that “[a] union which intentionally avoids asserting

discrimination claims, either so as not to antagonize the

employer and thus improve its chances of success on other issues,

or in deference to the perceived desires of its white membership,

is liable under [Title VII].”   Id. at 669 (internal citations and

quotations omitted).   In coming to this conclusion, the Court

noted that the employees’ claims of disparate treatment required

a showing of intentional discrimination.   Id. at 668-69.

     Stalcup argues that her case is factually analogous to

Goodman because CWA intentionally avoided asserting her

grievances just as the union in Goodman refused to assert the

grievances of its African American members.   Stalcup further

argues that a showing of intentional discrimination is sufficient

under Goodman to establish CWA’s ADA violation.   Stalcup

maintains that she is not required to show a breach of the

collective bargaining agreement, a breach of the duty of fair

representation, or animus in order to establish a prima facie

case of discrimination against CWA.   For purposes of this appeal

only, we assume that Stalcup is correct.   We assume that Stalcup

can establish an ADA violation with evidence of intentional

discrimination and that she need not establish a breach of the




                                 7
collective bargaining agreement, a breach of the duty of fair

representation, or animus.3

     In order to establish intentional discrimination, Stalcup

may produce direct evidence of discrimination or may utilize the

framework established by McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), to raise an inference of discrimination.

Daigle, 70 F.3d at 396.   In the ADA context, under the McDonnell

Douglas framework, when asserting an ADA claim against an

employer, a plaintiff can establish a prima facie case of

discrimination by showing that: (1) she suffers from a

disability; (2) she is qualified for the job; (3) she was subject

to an adverse employment action; and (4) she was treated less

favorably than non-disabled employees.   Id.   It is well-


     3
        In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court
established the parameters of the duty of fair representation.
The Court explained that a breach of the duty of fair
representation “occurs only when a union’s conduct toward a
member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.” Id. at 190. Given this
definition of a breach of the duty of fair representation, there
is not much difference between the Bugg and Goodman standards.
Once a Title VII plaintiff establishes intentional discrimination
by a union – either with direct evidence or by using the burden-
shifting framework of McDonnell Douglas – the plaintiff also
inherently establishes a breach of the union’s duty of fair
representation. See Causey v. Ford Motor Co., 516 F.2d 416, 425
n.12 (5th Cir. 1975) (observing that “[t]he fair representation
duty under the [Labor Management Relations Act], as enumerated in
Vaca, overlaps with the Title VII protection, and the Vaca
standards (proscribing arbitrary, discriminatory, and bad faith
conduct) apply in Title VII cases.”) (internal citations and
quotations omitted). Thus, the real effect of our assumption in
this case is to excuse Stalcup from establishing a breach of the
collective bargaining agreement and animus.

                                 8
established that prima facie elements are not set in stone but,

rather, can be formulated to fit the circumstances of a

particular case.    McDonnell Douglas, 411 U.S. at 802 n.13; see

also LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n.3 (5th

Cir. 1996) (noting that “[t]he elements of a plaintiff’s prima

facie case necessarily vary according to the facts of the case

and the nature of the claim”).    The prima facie elements of an

ADA claim, as outlined by this court in Daigle, can be easily

manipulated to fit the contours of Stalcup’s discrimination claim

against CWA.    Therefore, even assuming that Stalcup is not

required to establish a breach of the collective bargaining

agreement, a breach of the duty of fair representation, or animus

to prevail, Stalcup must still establish that: (1) she suffers

from a disability; (2) she was subject to an adverse union

action; and (3) she was treated less favorably than non-disabled

employees.4    See Alexander v. Local 496, Laborers’ Int’l Union of

N. Am., 177 F.3d 394, 402-03 (6th Cir. 1999) (requiring the




     4
        The second Daigle element, whether the plaintiff is
qualified for the job, is irrelevant in this case because Stalcup
is asserting discrimination in the context of the grievance
process. Stalcup is entitled to a non-discriminatory grievance
process regardless of her job qualifications. However, it is
certainly conceivable that some claims of union discrimination
would require a showing of job qualification to establish a prima
facie case. For example, a prima facie case of discrimination by
a union based on the union’s failure to recommend the plaintiff
for a promotion might require a showing that the plaintiff is
qualified for the promotion.

                                  9
plaintiff to demonstrate similar elements in order to establish a

prima facie case of discrimination by a union).

     B. Did Stalcup Establish a Prima Facie Case of
     Discrimination by CWA?

     Accepting arguendo that Stalcup is disabled, we nevertheless

conclude that Stalcup did not establish a prima facie case of

discrimination by CWA because Stalcup has not established by a

preponderance of the evidence that CWA treated her less favorably

than non-disabled employees.    Stalcup’s evidence shows that CWA

did not fully pursue all of Stalcup’s complaints.   Although CWA

pursued some of Stalcup’s complaints with formal grievances, CWA

addressed other complaints with informal grievances or informal

meetings with SWB management.   Viewing the evidence in a light

most favorable to Stalcup, CWA apparently decided not to pursue

with SWB some of Stalcup’s complaints at all.   However, nothing

in the record suggests that CWA’s handling of Stalcup’s

complaints was different than its handling of complaints from

non-disabled employees.

     In Vaca, the Court emphasized the importance of a union’s

power “to settle the majority of grievances short of the costlier

and more time-consuming steps” of the grievance process.     386

U.S. at 192.   The evidence in the record shows that CWA addressed

each of Stalcup’s documented complaints in some manner, even if

it ultimately decided not to submit each one to the higher steps

of the grievance process or to arbitration.   In answer to


                                 10
Stalcup’s many complaints, CWA successfully prompted SWB to

implement a number of workplace accommodations which eased

Stalcup’s discomfort.   For example, SWB designated a smoke-free,

fragrance-free vehicle for Stalcup’s use, installed a ventilation

system in the smoking lounge, moved the employee refrigerator out

of the smoking lounge, and prohibited employees from bringing

non-necessary fragrance sources into the workplace.   At Stalcup’s

request, CWA also discussed with management SWB’s by-passing of

Stalcup for the position of Operator, a position for which

Stalcup was qualified and was the senior applicant.   CWA secured

SWB’s agreement to offer the position to Stalcup, who

subsequently refused to accept the position.

     Furthermore, CWA filed formal grievances regarding Stalcup’s

final suspension and termination from SWB.   CWA processed those

grievances through all the steps of the grievance process,

arguing at each step that SWB had acted too harshly in

terminating Stalcup.    In the grievance meetings, CWA urged SWB to

provide Stalcup with the remedies she sought, including

reinstatement after termination, correction of her attendance

records, improved indoor air quality, unlimited access to

restrooms, a transfer to another department, and a compensatory

lump sum settlement or disability pension.   No evidence in the

record suggests that CWA exerts greater efforts for non-disabled

employees than it did for Stalcup.    Stalcup’s subjective belief

of discrimination is not sufficient to warrant judicial relief.

                                 11
Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999).

Thus, we conclude that Stalcup fails to demonstrate by a

preponderance of the evidence that CWA treated her less favorably

than non-disabled employees.   Because Stalcup’s prima facie case

of disability discrimination fails on this ground, we need not

consider whether Stalcup has demonstrated the other elements of a

prima facie case of discrimination by a union.

                         IV.   Conclusion

     For the foregoing reasons, we find that the district court

properly granted summary judgment for CWA.   The district court

correctly concluded that Stalcup has failed to establish her

prima facie case of disability discrimination.   Accordingly, we

AFFIRM the district court’s judgment in favor of CWA.




                                12
