                      United States Court of Appeals,

                               Fifth Circuit.

                                No. 96-40038.

                    John R. TURCO, Plaintiff-Appellant,

                                       v.

     HOECHST CELANESE CHEMICAL GROUP, INC., et al., Defendants,

     HOECHST CELANESE CHEMICAL GROUP, INC., Defendant-Appellee.

                               Dec. 23, 1996.

Appeal from the United States District Court for the Southern
District of Texas.

Before REYNALDO G. GARZA, JONES and DeMOSS, Circuit Judges.

      PER CURIAM:

      This appeal arises out of a suit filed under the Americans

with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et. seq.                The

plaintiff, John R. Turco, alleges that he was fired from his job

because of an insulin-dependent diabetic condition.             However, the

United States District Court for the Southern District of Texas,

per Judge Hugh Gibson, found otherwise and granted summary judgment

in   favor   of   the   defendant.      We   affirm   the   district   court's

decision.

                                I. Background

      Turco worked as a chemical process operator for Hoechst

Celanese Chemical Group, Inc. ("Hoechst") at its Clear Lake, Texas

plant for thirteen years.       He worked a rotating shift, as there was

no "day shift" for any process operator, and was routinely required

to work through the night.           In the early to mid-1980s Turco was

diagnosed    with     adult   onset   diabetes    and   began   taking    oral

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medication to regulate his condition.             This treatment seemed to

succeed for several years because he continued working his shift

without complaint.       However, in January, 1994, Turco learned that

an exacerbation of his diabetic condition required him to use

insulin.    Turco's co-workers, supervisors, and the company's human

resource personnel were all well aware, nearly from the onset,

about Turco's diabetic condition and its progression.

     Although Turco's supervisors considered him a capable operator

overall, Turco had a history of ignoring Hoechst policies and

procedures. This was clearly evidenced in his year-end performance

appraisals of 1992 and 1993.       Each emphasized his need to improve

his attitude, cooperation, poor attendance record, and commitment

to safety.    Turco's performance, by his own admission, began to

deteriorate even more in 1994.              Given his admitted, increasing

difficulties on the job, Turco responded on March 11, 1994 to an

internal job posting for an available process analyzer technician

position.    However, he was not selected for the job.

     On March 21, 1994, Turco submitted a letter written by his

treating    physician,    Dr.   James   Eden,    recommending   that   he   be

transferred to a daylight position, concluding that the more

predictable eating, sleeping, and exercise patterns accompanying an

exclusively daytime schedule would facilitate the regulation of his

blood sugar levels.      In response to this letter, Hoechst's company

nurse met with Turco and requested that he make an appointment with

a company-selected endocrinologist so that his diabetic condition

could be independently evaluated.           Whether the responsibility lay


                                        2
with Turco or with the nurse to arrange this appointment is subject

to considerable controversy in the record.    This factual dispute

notwithstanding, Turco clearly never met with this endocrinologist.

     Though evidence of other procedural lapses appears in the

record, it is primarily two incidents of policy infractions which

contributed to Turco's termination.   The first occurred on March

24, 1994, when Turco hooked the plant's fire water to the high

pressure side of the liquids incinerator, contaminating the fire

water with highly flammable organic material.       The potential

ramifications of using water that is infected with highly flammable

organic materials to put out a fire go without saying.       Turco

clearly admitted that this mistake was "extremely dangerous."   In

fact, he was afraid he was going to be fired because he could have

not only hurt himself, but could have hurt others.         Hoechst

considered firing Turco over this incident, but his supervisor, Don

Hardt, convinced management to give him another chance.   Instead,

on May 2, 1994, he was subjected to written corrective action for

his acts.

     The second incident occurred while Turco was on written

corrective action.   On May 13, 1994, Turco exposed his arms to

acrylic acid polymer while cleaning a strainer on a crude acrylic

truck. Instead of washing the exposed area for fifteen minutes and

promptly reporting the incident to his supervisor, as required by

Hoechst policy, Turco went home after his shift and went to bed.

He was awakened during the early morning because of the discomfort

and swelling in his forearms.    He reported the injury upon his


                                3
arrival at work the next morning and a physician subsequently

treated him for first degree chemical burns.               Shortly thereafter,

on   June   3,    1994,     citing   Turco's   "repeated      behavior   for   not

following procedures" and his "failure to demonstrate a sustained

willingness to change this behavior," Hoechst terminated Turco's

employment.

      Following his termination, Turco sued, alleging that Hoechst

violated the ADA in two ways. First, Hoechst failed to accommodate

Turco's     diabetes.        Second,   he    alleges   that    his   termination

reflected        unlawful     discrimination     on    the      basis    of    his

insulin-dependent diabetic condition. Judge Gibson granted summary

judgment in favor of the defendant, finding that Turco was not a

"qualified individual with a disability" because he could not

perform the essential functions of his job without putting himself

or others in dangers way and no reasonable accommodation would be

able to eliminate this risk.           Turco now appeals.

                                 II. Discussion

A. Standard of Review

       We review a summary judgment de novo, as if we were the

district court itself.         E.g., McMurtray v. Holladay, 11 F.3d 499,

502 (5th Cir.1993).         Therefore, summary judgment is appropriate if

there is "no genuine issue as to any material fact and ... the

moving party is entitled to a judgment as a matter of law."

FED.R.CIV.P. 56(c).

B. The Americans with Disabilities Act

      The Americans with Disabilities Act provides that "no covered


                                         4
entity shall discriminate 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    "disability"     includes      "a   physical    or   mental

impairment that substantially limits one or more of the major life

activities       of   such     individual."        42    U.S.C.    §   12102(2).       A

"qualified individual with a disability" means an "individual with

a disability who, with or without reasonable accommodations can

perform the essential functions of the employment position that

such individual holds or desires."                 Id. at § 12111(8).

        To prevail on an ADA claim, a plaintiff must prove that 1) he

has a "disability";            2) he is "qualified" for the job;           and 3) an

adverse     employment         decision    was    made    solely   because      of   his

disability.       Rizzo v. Children's World Learning Centers, Inc., 84

F.3d 758, 763 (5th Cir.1996).

C. Granting summary judgment on grounds not briefed

        The   crux        of   Turco's    first    argument    centers    around     the

allegation that the lower court erred by granting summary judgment

on grounds not urged or briefed by the defendant.                      He claims that

when Hoechst moved for summary judgment, it argued only that it had

terminated Turco for "legitimate, non-discriminatory reasons" and

that Judge Gibson granted the motion on the basis that Turco was

not a "qualified" individual, the second element of his ADA claim.

       We find that Hoechst did in fact raise the issue of whether


                                            5
Turco was "qualified" in its motion.             Although it was raised in a

footnote, it clearly places Turco on notice that the issue of his

qualification was part of the summary judgment submitted by the

defendant.        Hoechst plainly writes in its footnote that "even

assuming the plaintiff is disabled under the ADA, there is no

evidence     that    plaintiff      is   a    "qualified    individual   with    a

disability' within the meaning of the ADA."                (R. 274).

         Judge Gibson granted Hoechst's motion on facts that were not

specifically raised in the motion, but it is well settled that he

is entitled to do so.            Rule 56 of the Federal Rules of Civil

Procedure requires a court to consider the whole record when ruling

on   a   motion     for   summary   judgment.      The     record   includes   the

"pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits."                    FED.R.CIV.P. 56(c).

Although a court may not weigh the evidence to determine its truth

nor draw inferences from the facts, Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202

(1986), Rule 56 clearly permits a court to consider the whole

record, and "not just the portion highlighted by the motion."

Ramirez v. Burr, 607 F.Supp. 170, 173 (S.D.Tex.1980) (citing Keiser

v. Coliseum Properties, Inc., 614 F.2d 406, 410 (5th Cir.1984)).

Moreover, a district judge is not compelled to limit the basis for

a summary judgment on those facts listed in the motion for summary

judgment. United States v. Houston Pipeline, 37 F.3d 224, 227 (5th

Cir.1994).     In essence, a district court has the ability to grant

a summary judgment on facts not briefed by the movant, as long as


                                          6
the non-movant has notice of the issue.

D. Qualified individual with a disability

         It     is    undisputed       that        Turco's   diabetic    condition      is

considered a "disability" under the ADA.                     However, the contention

lies    in     whether      Turco     is   a       "qualified   individual"      with   a

disability, that is, whether he is a person who, with or without

reasonable accommodation, can perform the essential functions of

his employment position.               Turco asserts that there are genuine

issues of material fact with regards to his "qualification" under

the ADA on several bases.

        We have defined an "otherwise qualified person as "one who is

able to meet all of the program's requirements in spite of his

handicap' ".         Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th

Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1386, 128 L.Ed.2d

61 (1994) (quoting Southeastern Community College v. Davis, 442

U.S. 397, 406, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979)).                             To

avoid summary judgment on whether he is a qualified individual,

Turco   needs        to   show   1)    that    he    could   perform     the   essential

functions of the job in spite of his disability or 2) that a

reasonable accommodation of his disability would have enabled him

to perform the essential functions of the job.                     Id.

       After reviewing the summary judgment evidence before us we

find    that    Turco      was   not    qualified       to   perform     the   essential

functions of a chemical process operator. This is evidenced by his

own testimony.            He testified in his deposition that walking and

climbing "are all things that a chemical process operator has to


                                               7
do" and that "good concentration" is "most definitely" important to

a process operator.        Yet, he recalls specific instances when his

diabetes affected his ability to do his job.                   For example, he

remembers working on the "control room board" while one of the

operators was putting a piece of apparatus in service and not being

able to concentrate on what to do next.         He also recalls walking to

an incinerator at one point and his legs hurting so bad that he

could     hardly   walk,    he   couldn't     climb,     and     he   lost   his

concentration.       There were times that his sugar level was so low

that he could not remember his name.          On the one hand he sets out

the essential job requirements of a chemical process operator and

on the other he basically admits that he cannot fulfill those basic

requirements.

     Turco    next    contends   that   his   ailments    and    concentration

problems would all be alleviated if Hoechst had accommodated him

and switched him to a day-time shift.             We find this argument

implausible for two reasons.        First, regardless of whether Turco

was working a straight day-shift or a rotating shift, he would

still, by his own admission, be unable to perform the essential

functions of an operator because both the physical and mental

demands would be the same.       He would still need to walk, climb and

concentrate, but he would still not be able to perform these

essential functions.        Second, Hoechst has no straight day-shift

chemical operator positions—all operator positions are on rotating

shifts.    Moving one operator to a straight day shift would place a

heavier burden on the rest of the operators in the plant.                And an


                                        8
accommodation that would result in other employees having to work

harder or longer is not required under the ADA.                     Milton v.

Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir.1995);              29 C.F.R. §

1630.2(p)(2)(v).

     Turco briefly mentions that Hoechst was also unaccommodating

because it did not hire him as an analyzer technician.                 However,

this position required him to walk, climb, and concentrate as much

as his previous position.             Thus, Turco would be, by his own

admission,       just    as    unqualified    for    this     accommodation.

Additionally, Hoechst is not required to create light duty jobs to

accommodate      disabled     employees.1    The    law   does   not    require

affirmative action in favor of individuals with disabilities.                It

merely       prohibits   employment    discrimination     against   qualified

individuals with disabilities, no more and no less.              Daugherty v.

City of El Paso, 56 F.3d 695, 700 (5th Cir.1995).

     Turco is not only unqualified because he cannot perform the

essential functions of his job, but he is also unqualified due to

the safety risk that he imposes upon himself and others.                The ADA

allows qualification standards that "include a requirement that an

individual shall not pose a direct threat to the health or safety

of other individuals in the workplace," and defines a "direct

threat' as a significant risk to the health or safety of others


         1
       See Daugherty v. City of El Paso, 56 F.3d 695, 700 (5th
Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1263, 134 L.Ed.2d
211 (1996) ("[an employer] is not required to fundamentally alter
its program. Nor is the [company] required to find or create a new
job for the [plaintiff] ...") (quoting Chiari v. City of League
City, 920 F.2d 311, 318 (5th Cir.1991).

                                        9
that cannot be eliminated by reasonable accommodation.           42 U.S.C.

§ 12113(b).    Turco's position at Hoechst required him to work with

complicated    machinery   and    dangerous   chemicals.   Any   diabetic

episode or loss of concentration occurring while operating any of

this machinery or chemicals had the potential to harm not only

himself, but also others.        This would be a walking time bomb and

woe unto the employer who places an employee in that position.

     In sum, Turco was not "qualified" under the ADA for two

reasons.     First, he was not qualified to perform essential duties

required by Hoechst.       Second, he was not qualified due to the

safety concerns presented by the severity and volatility of his

diabetes.     No reasonable accommodation could be made that would

qualify Turco to perform his job in spite of his diabetes.

E. Discriminatory Intent

     Turco      alleges     that      the     lower    court      resolved

credibility-intensive fact issues regarding discriminatory intent.

Although Judge Gibson addressed discrimination in his opinion and

order, he never actually rules on this issue.         He granted summary

judgment on the sole issue of whether Turco was a "qualified"

individual under the ADA.        However, even had this issue been ruled

on by Judge Gibson, there is no evidence whatsoever that the

actions taken by Hoechst were discriminatory in nature. The reason

it fired Turco was because, among other incidents, he had two

accidents in the span of two months.           These last two accidents

jeopardized both his safety and the safety of others. Furthermore,

there is no evidence that Turco was treated any differently than


                                     10
any other employee with the same condition.

                            III. Conclusion

     Based   on   the   foregoing,   we   AFFIRM   the   district   court's

decision granting summary judgment in favor of the defendant.




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