     Case: 10-10960 Document: 00511501400 Page: 1 Date Filed: 06/07/2011




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

                                                 FILED
                                                                            June 7, 2011
                                       No. 10-10960
                                                                            Lyle W. Cayce
                                                                                 Clerk



HEATHER APPEL,

                                                   Plaintiff-Appellant,

versus

INSPIRE PHARMACEUTICALS, INC.,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:09-CV-1281




Before GARWOOD, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Heather Appel appeals a summary judgment in favor of her employer,
Inspire Pharmaceuticals, Inc. (“Inspire”), on her sex and pregnancy discrimina-



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-10960

tion claim and her disability discrimination claim. Finding no error, we affirm.


                                         I.
      Appel was hired as a Territory Manager in April 2008 by Inspire, a phar-
maceutical sales company. Territory Managers promote Inspire products to phy-
sicians, managed care organizations, and other health care providers.
      In September 2008, Appel informed Inspire that she was pregnant and
that her pregnancy was considered high-risk. Her physician provided Inspire
with a document stating that Appel would be house-confined from September 16,
2008, until the end of her pregnancy. On September 11, 2008, Inspire terminat-
ed Appel and posted her position for hire on September 23. Appel underwent a
surgical procedure in September 2008, remained on short-term disability leave
for three months, and was formally terminated in December 2008. Her position
was filled in March 2009 by a non-pregnant woman.
      Appel sued, claiming (1) sex and pregnancy discrimination in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 2000e et
seq.; and (2) disability discrimination in violation of the Americans with Disabili-
ties Act (“ADA”) and 42 U.S.C. § 12101 et seq. The district court granted sum-
mary judgment to Inspire, holding that (1) Appel was not qualified to perform
the job of Territory Manager while under her medical condition, a requirement
under her title VII claim; and (2) she was not a qualified individual with a disa-
bility under the ADA.


                                        II.
      We review a summary judgment de novo, “using the same standard as that
employed by the district court under Rule 56.” Kerstetter v. Pac. Scientific Co.,
210 F.3d 431, 435 (5th Cir. 2000). Summary judgment is warranted “if the mov-
ant shows that there is no genuine dispute as to any material fact and the mov-

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                                   No. 10-10960

ant is entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(a). There is
no genuine issue for trial “[i]f the record, taken as a whole, could not lead a ra-
tional trier of fact to find for the non-moving party.” Kipps v. Caillier, 197 F.3d
765, 768 (5th Cir. 1999). We review evidence in the light most favorable to the
nonmoving party, but conclusional allegations and unsubstantiated assertions
may not be relied on as evidence by the nonmoving party. See Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).


                                         A.
      Title VII prohibits intentional discrimination “against any individual with
respect to his compensation, terms, conditions, or privileges of employment, be-
cause of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a). Discrimination on the basis of sex includes discrimination “on the
basis of pregnancy, childbirth, or related medical conditions . . . .” Id. § 2000e(k).
      Title VII discrimination can be established through direct or circumstan-
tial evidence. Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003). Where the
plaintiff has not presented direct summary judgment evidence of discrimination,
we apply the burden-shifting framework in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973): A plaintiff alleging disparate treatment must first prove
a prima facie case of discrimination by showing that (1) he is a member of a pro-
tected class; (2) he was qualified for the position; (3) he suffered an adverse em-
ployment action; and (4) others similarly situated were treated more favorably.
Id. at 802.
      Once a plaintiff has made a prima facie case, the employer must provide
“some legitimate nondiscriminatory reason” for the adverse action taken. Id. at
802. If the employer provides a nondiscriminatory reason, the burden shifts to
the plaintiff to show a genuine issue of material fact that either (1) the employ-
er’s proffered nondiscriminatory reason is a pretext for discrimination or (2) re-

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                                  No. 10-10960

gardless of the nondiscriminatory reason, the discriminatory reason was a moti-
vating factor in the employer’s action. See Alvarado v. Texas Rangers, 492 F.3d
605, 611 (5th Cir. 2007) (citation omitted).
      The record does not support Appel’s assertion that she can show direct dis-
crimination. She points to a statement by one of her supervisors that she was
fired because he believed Apple could not perform all the duties in her job de-
scription as a territory manager because of complications arising from her preg-
nancy. Appel misconstrues that statement as evidence that she was terminated
because of her pregnancy: It is actually evidence that she was terminated be-
cause she was incapable of performing her job functions because of medical com-
plications specific to her pregnancy. This is further evident from the testimony
of another of Appel’s supervisors:
      Q. Just so I understand correctly, if due to the procedure, if she had
      miscarried, for instance, and not been pregnant any longer, and able
      to come back, you wanted to have that opportunity for her; is that
      right?
      A. If she was able to perform her job duties, then we would have
      been welcome to have her back.
      Q. I wasn’t there at the time. When you say complications, are you
      talking about if she was no longer pregnant?
      A. Well, if—my understanding, if she was no longer—I mean, if this
      surgical procedure did not work, if she was no longer pregnant, then
      she would have been able to—she would not need—she would not
      have needed to be on bed rest which would have prevented her from
      doing her job.
(Emphasis added).
      There is nothing in the record that can be construed as direct evidence
that Appel was terminated because of her pregnancy; rather, the record shows
she was terminated because she could not perform her job duties owing to medi-




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                                       No. 10-10960

cal complications that were the result of her pregnancy.1 Thus, Appel has no dir-
ect evidence of discrimination and must instead rely on circumstantial evidence.
       Appel cannot prove a prima facie case of discrimination using circumstan-
tial evidence, because she cannot satisfy the second requirement of McDonnell
Douglas: that she was qualified for the position given the medical restrictions
placed by her physician during the high-risk pregnancy. The job description for
a Territory Manager at Inspire includes the following:
       Inspire’s Territory Manager position is considered an outside sales
       position which requires the ability to physically call on physicians
       in order to promote Inspire’s pharmaceutical products. A major
       component of the position includes detailing the physicians regard-
       ing the products, answering questions and dropping off samples dur-
       ing these visits, which require a signature in order to stay within
       compliance regulations, therefore requiring face to face contact with
       the provider’s officer. The Territory Manager is also required to call
       on pharmacies and other special customers.
       The Territory Manager position requires the ability to receive sam-
       ple shipments of three products along with all promotional material
       which at the time were being distributed to physician offices. These
       boxes may weigh up to 40 lbs, each box needs to be opened and brok-
       en down into smaller allocations. All materials/samples are then
       transferred into the company vehicle for daily use.
       Territory Managers are required to have the ability to spend extend-
       ed periods of time behind the wheel of their company vehicles. Drive
       time per Territory Manager will vary depending on the size and
       demographics of the territory and scheduled rotating. Territory
       routing will usually consist of a 2-3 week call cycle requiring the
       face to face contact with each office.



       1
         Appel also points to statements showing that Inspire waited until after her September
surgery to post a job listing because it would be willing to rehire her if the surgery had gone
poorly and she were to miscarry her baby. Appel argues that waiting for a miscarriage shows
that Inspire plainly cared about her pregnancy status. Although waiting for a possible miscar-
riage might appear unseemly, it is not direct evidence of discrimination. If the surgery had
gone wrong and Appel was no longer pregnant, she would not suffer from the medical compli-
cations that would leave her unable to perform her job duties, so Inspire would have no reason
to terminate her employment—consistent with the other statements made by Inspire.

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                                        No. 10-10960

       Many of these physical responsibilities would be impossible for Appel, who
had been ordered to remain at home, in bed, for the duration of her pregnancy,
rendering her unqualified for the position of Territory Manager.2 Inspire also
presented evidence that these physical aspects of the position were essential:
Appel’s supervisors testified that face-to-face promotion was necessary in the
pharmaceutical sales industry and that, without having someone visit those of-
fices every day, sales would decline in six to eight weeks.3
       Appel argues that there were many aspects of her job that she could ac-
complish even with her medical limitations, but she cannot rebut the fact that
she would be unable to perform many of the physical responsibilities of a Terri-
tory Manager. Nor does she provide any information to rebut Inspire’s evidence
that the physical aspects of the position are essential to proper performance, be-
yond her own base declarations of such, none of which rises to the level of creat-
ing a genuine dispute as to a material fact.4 In sum, as a result of the medical


       2
          Appel claims that this job description should not be accorded any credence, because
“Inspire may have created this job description after Appel was terminated or worse after Appel
filed her EEOC charge.” She does not provide any evidence beyond this allegation to substan-
tiate her conclusional claim that the document did not accurately portray the job responsibili-
ties of a Territory Manager, nor does she rebut the evidence that shows these are the responsi-
bilities she performed in that job before she had her medical complications. In her deposition,
Appel admitted that she had received this job description and that she knew making face-to-
face visits was an essential function of her job.
       3
         Appel argues that Inspire’s failure to fill her vacant position until months after she
had been terminated cuts against Inspire’s claim that face-to-face visits were necessary, but
her argument is unconvincing. Inspire’s failure to find someone to replace Appel has no bear-
ing on the propriety of terminating her employment—there could be many reasons why it was
unable to fill her position (Inspire claims that a hiring freeze was put into place by the corpor-
ation before they could find someone qualified for the position), none of which would affect the
determination that Appel was unqualified for the job.
       4
         Appel does point to the situation of Jason Wisinki, another Inspire employee, who took
a leave of over ninety days without being terminated. Appel does not, however, provide any
evidence to show that her situation was similar to that of Wisinki’s. To the contrary, there is
evidence in the record suggesting their situations were dissimilar. As an initial matter, they
held different formal positions (Wisinski is described as a Sales Representative, but Appel was
                                                                                   (continued...)

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                                       No. 10-10960

complications of her pregnancy, Appel was unqualified for her position, so she
cannot make a prima facie of discrimination, and summary judgment on her
Title VII claim was proper.


                                              B.
       The ADA prohibits discrimination against a qualified individual because
of a disability “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 per-
son is disabled under the ADA if he (1) has a physical or mental impairment that
substantially limits one or more of the major life activities, (2) has a record of
such impairment, or (3) is regarded as having such an impairment.                           Id.
§ 12102(2). A recognized disability is not sufficient for relief under the ADA,
however; a claimant must be a “qualified individual with a disability.” The
relevant statute defines a qualified individual as
       an individual with a disability who, with or without reasonable ac-
       commodation, can perform the essential functions of the employ-
       ment position that such individual holds or desires. For the purpos-
       es of this subchapter, consideration shall be given to the employer’s
       judgment as to what functions of a job are essential, and if an em-
       ployer has prepared a written description before advertising or in-
       terviewing applicants for the job, this description shall be consid-
       ered evidence of the essential functions of the job.
Id. § 12111(8). An employee who cannot perform essential job requirements,
even with accommodation, is not a qualified person with a disability.
       Appel contends that her disability is an incompetent cervix. Assuming


       4
          (...continued)
a Territory Manager). Additionally, Inspire suggests that Wisinski’s leave was pursuant to
a possible Family Medical Leave Act requirement (we do not rely on this to distinguish Wisin-
ski’s situation from Appel’s, because the record is bare on a possible FMLA rationale, but we
point to it as one possible difference Appel has not addressed because she has in fact addressed
no possible differences or possible similarities between her situation and Wisinski’s).

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                                  No. 10-10960

without deciding that an incompetent cervix is a disability within the meaning
of the ADA, Appel is still not a qualified individual with a disability. As dis-
cussed above, the record shows that there are many physical requirements es-
sential to the Territory Manager position that Appel was unable to perform, nor
has she put forth any competent summary judgment evidence showing that she
could perform those physical requirements even with accommodation.


                                        C.
      Appel argues that the district court granted summary judgment on her
Title VII claim sua sponte on grounds not requested by the moving party. She
contends that Inspire’s motion for summary judgment argued for judgment on
only two grounds—that there was no evidence of disparate treatment and no evi-
dence of pretext—but the district court granted summary judgment primarily
on the issue of Appel’s lack of qualification for the Territory Manager position—
also the reason why we affirm the summary judgment.
      Although it is true that the thrust of Inspire’s motion for summary judg-
ment was on the issue of disparate treatment, it raised the issue of Appel’s quali-
fications. For example, here is an excerpt from the introduction to the motion:
      An essential element of Plaintiff's job function was to travel outside
      her home and meet with various doctors in order to provide doctors
      with information about Inspire’s pharmaceutical products. Plaintiff
      provided Inspire with medical documentation that specifically pro-
      hibited Plaintiff from performing this essential element of her em-
      ployment as well as several other elements of her position, and it
      was only after this medical documentation was received that Inspire
      terminated Plaintiff's employment. Further, at no time did Plaintiff
      ever ask for a reasonable accommodation, nor could one have been
      provided if requested given the nature of Plaintiff's medical restric-
      tion as mandated by her doctor. As such, Inspire’s decision to ter-
      minate Plaintiff's employment was based on non-discriminatory and
      legitimate business needs and was not discriminatory.
      Furthermore, the extensive briefing, along with the motion for summary

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                                 No. 10-10960

judgment and Appel’s response to the motion, included a discussion of whether
Appel was a “qualified individual with a disability” pursuant to the ADA, an an-
alysis that mirrors precisely the discussion of whether Appel was qualified for
the position under step two of McDonnell Douglas.
      Accordingly, the district court’s decision regarding Appel’s qualifications
was not made sua sponte. Rather, the court, confronted with the same question
in evaluating Appel’s ADA claim, concluded that her medical condition rendered
her unqualified to perform the job responsibilities of a Territory Manager—a fac-
tual conclusion that also warranted summary judgment on the Title VII claim.
      AFFIRMED.




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