     Case: 16-20553      Document: 00513890907         Page: 1    Date Filed: 02/27/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 16-20553                                  FILED
                                  Summary Calendar                         February 27, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
MICHELLE SPENCER,

              Plaintiff - Appellant

v.

KS MANAGEMENT SERVICES, L.L.C., doing business as Kelsey-Seybold
Clinic,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 4:14-CV-274


Before KING, GRAVES, and COSTA, Circuit Judges.
PER CURIAM:*
       The typical appeal we see in employment discrimination cases is a
plaintiff challenging a grant of summary judgment that prevented her case
from reaching trial. Michelle Spencer’s claim that her termination violated the
Americans with Disabilities Act made it to trial. Spencer did not prevail at
trial so brings this appeal. Even though her case made it past the summary


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-20553
judgment stage, Spencer’s appeal invokes the McDonnell Douglas standard
that determines whether sufficient circumstantial evidence of discrimination
exists to warrant a trial. Under the different standard that applies when a
factfinder rejects a claim after trial, Spencer’s appeal fails.
                                       ***
      Kelsey-Seybold Clinic employed Spencer as a Medical Assistant I (MA-
I). After a few years with Kelsey-Seybold, Spencer took time off to receive
treatment for depression. The treatment included electroconvulsive therapy,
which results in short-term memory loss and increased difficulty in retaining
new information. After her treatment, Spencer was able to return to work and
accepted a position in Kelsey-Seybold’s Family Medicine Department.
      In 2005, as part of a staff reorganization, Kelsey-Seybold decided to
eliminate the MA-I position and transition to using MA-IIs in all primary care
departments. Family Medicine is a primary care department, so this change
affected Spencer’s position. Unlike an MA-I, an MA-II administers medication
and vaccines.    But all was not lost for Spencer, because Kelsey-Seybold
provided MA-Is with the opportunity to transition to MA-II positions. To
successfully transition, MA-I’s had to complete a training program and pass an
exam testing knowledge of medications and immunizations.
      Spencer struggled to learn and retain the testing information.           She
notified Kelsey-Seybold of her difficulties and asked for either a tutor or study
partner to help her prepare for the examination. After failing the test in 2007,
Spencer again asked Kelsey-Seybold for help on the exam. In response to this
second request, Kelsey-Seybold permitted Spencer to do the following:
         • Copy study materials and notes used by MA-I’s who had passed
           the test;
         • Review questions and answers from previous MA-II tests;
         • Study for the test during paid-work hours;

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         • Schedule other staff members to cover for her while she studied;
         • Receive tutoring from coworkers who had passed the test; and
         • Review test questions and answers with a supervisor.
Spencer also was given unlimited time to complete the test. Even with these
accommodations, Spencer failed the test again in 2010.             Kelsey-Seybold
terminated her employment on the grounds that her MA-I position had been
phased out and she had failed to successfully transition to an MA-II. Spencer
was the only MA-I who failed to transition.
      Spencer filed suit, arguing that Kelsey-Seybold failed to reasonably
accommodate her learning disability and unlawfully terminated her
employment in violation of the ADA. 42 U.S.C. § 12101, et seq. After a bench
trial, the magistrate judge held that Spencer was not unlawfully terminated.
The magistrate judge explained that Spencer could not pass the MA-II test
even with reasonable accommodations, and successful completion of the test
was required to perform the essential job functions of administering medicine
and vaccines. He also found that the termination was not the product of
disability discrimination.
      Spencer errs by asserting that we should consider her claims under the
familiar McDonnell Douglas framework used to determine if a plaintiff has
sufficient circumstantial evidence of discrimination to get past summary
judgment. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). She argues
she satisfies the prima facie case of discrimination that is the first stage of that
inquiry. McDonnell Douglas, however, is only an “evidentiary framework”
used to evaluate whether a plaintiff has identified a genuine dispute of
material fact on the ultimate question of discrimination. Swierkiewicz v.
Sorema N.A., 534 U.S. 506 (2002) (rejecting the argument that a plaintiff has
to plead a prima facie case under the standard); U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 715 (1983) (explaining that the prima facie
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standard is “merely a sensible, orderly way to evaluate the evidence in light of
common experience as it bears on the critical question of discrimination”).
Given that limited purpose, we have explained that a jury should not be asked
whether a plaintiff has established a prima facie case; instead it should be
asked whether she has proved the ultimate question of discrimination.
Walther v. Lone Star Gas Co., 952 F.2d 119, 127 (5th Cir. 1992).
      As the case was tried, Spencer had to prove to the factfinder that (1) she
was disabled, (2) was qualified for the job she lost, and (3) was fired because of
her disability. Neely v. PSEG Tex., Ltd., 735 F.3d 242, 245 (5th Cir. 2013).
Spencer is disabled, but the magistrate found that she did not prove the final
two requirements.
      The magistrate judge found that Spencer was not qualified for the MA-
II position because she could not pass the test covering medications and
vaccinations.   An individual is qualified for her job if, “with or without
reasonable accommodation, [she] can perform the essential functions of the
employment position that [she] holds or desires.” 42 U.S.C. § 12111(8); Turco
v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996). A job function
is “essential if it bears more than a marginal relationship to the employee’s
job.” EEOC v. LHC Grp., 773 F.3d 688, 697 (5th Cir. 2014). We review the
trial court’s factual finding on this point for clear error. Knight v. City of
Bogalusa, La., 717 F.2d 249, 251 (5th Cir. 1983).
      Administering medicine and vaccines is an essential function of the MA-
II position, as it is the primary difference between the MA-I and MA-II
positions.   The magistrate judge reasonably concluded that successful
completion of the MA-II test is a legitimate requirement that measures
whether the employee can safely perform that function on which the health of
patients depends. Successful completion of the test has more than a “marginal
relationship” to an MA-II’s duties; it measures the taker’s ability to perform
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                                  No. 16-20553
vital parts of the job. See Jones v. Kerrville State Hosp., 142 F.3d 263, 265 (5th
Cir. 1998) (recognizing that failure to complete training for an essential job
function indicates inability to perform essential job function).
       Nor did the magistrate judge err in finding that no reasonable
accommodations would allow Spencer to pass the test. 42 U.S.C. § 12111(9)(B)
(providing that reasonable accommodations may include “reassignment to a
vacant position . . . appropriate adjustment or modifications of examinations,
[or] training materials or policies”).   Kelsey-Seybold had already provided
Spencer with the laundry list of accommodations cited above, yet she was still
20 percentage points away from passing the test the second time she took it.
The magistrate judge did not clearly err in concluding that the special tutor
Spencer requested was unlikely to help her make up this significant gap given
all the help Spencer had already received. Kelsey-Seybold also would have
allowed her to take the test again, but Spencer insisted on only taking it twice.
We see no error in the magistrate’s finding that reasonable accommodations
would not have allowed Spencer to pass the test, which was required before
she could administer medicine and vaccines.
      Spencer also seems to argue that other MA-I positions were available,
and that a reasonable accommodation would have been to transfer her to one
of those positions.   This argument ignores the magistrate judge’s factual
finding that Kelsey Seybold’s remaining MA-I positions were in specialized
departments.    The magistrate found that Spencer was not qualified for
placement in specialized departments, and Spencer does not make any
argument on appeal that contradicts this finding.
      The magistrate thus did not clearly err in finding that Spencer was not
qualified for any MA position.
      The magistrate also found against Spencer on the final element, which
asks the ultimate question of whether disability discrimination motivated the
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                                   No. 16-20553
termination. He concluded that the firing “was based on legitimate business
reasons, and not motivated in whole or in part by Spencer’s disability.”
Spencer does not present any arguments on appeal that overcome the
deference afforded that finding.
      The judgment is AFFIRMED.




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