                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   May 11, 2004

                        _____________________             Charles R. Fulbruge III
                                                                  Clerk
                             No. 03-20720
                        _____________________

                           DWAYNE PREJEAN,

                        Plaintiff - Appellant,

                                versus

           CYPRESS-FAIRBANKS INDEPENDENT SCHOOL DISTRICT,

                      Defendant - Appellee.
_________________________________________________________________

           Appeal from the United States District Court
      for the Southern District of Texas, Houston Division
               District Court Cause No. H-02-CV-1524
_________________________________________________________________

Before JOLLY, JONES and PRADO, Circuit Judges.1

PRADO, Circuit Judge.

     This appeal arises from a lawsuit in which appellant Dwayne

Prejean sued his former employer, appellee Cypress-Fairbanks

Independent School District (the School District), for violations

of the Rehabilitation Act and the Family Medical Leave Act

(FMLA).   In his complaint, Prejean alleged the School District

unlawfully terminated him because of his disability (depression),

and failed to accommodate his disability by denying him FMLA

leave.    The School District moved for summary judgment on both of

     1
      Pursuant to 5th Cir. R. 47.5, this 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that this opinion should not be published and is not precedent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.

                                  1
these claims.    After considering the summary judgment evidence,

the district court determined Prejean failed to produce evidence

that he is an individual with a disability, that he is otherwise

qualified to perform the essential functions of his former job as

a buyer, and that the School District discharged him from his job

as a buyer solely because of his alleged disability.     Based on

these determinations, the district court dismissed Prejean's

Rehabilitation Act claim.    The district court also determined

Prejean failed to present any evidence from which a reasonable

trier of fact could conclude that Prejean notified the School

District he needed to take additional FMLA leave or that the

School District wrongfully denied his request for additional

leave.    Consequently, the district court dismissed Prejean's FMLA

claim, and entered summary judgment in favor of the School

District.   Prejean challenges the summary judgment in this

appeal.

                          Standard of Review

     This Court reviews a district court’s summary judgment

decision de novo.    See Daniels v. City of Arlington, Tex., 246

F.3d 500, 502 (5th Cir. 2001).     Consequently, this Court will

uphold a summary judgment if there is no genuine issue of

material fact.    See FED. R. CIV. PROC. 56(c).




                                   2
          Prejean’s Claim Under the Rehabilitation Act

     In its motion, the School District maintained that Prejean

could proffer no evidence to satisfy the elements of his claim

under the Rehabilitation Act.   To establish a prima facie case

under the Rehabilitation Act, a plaintiff must show: (1) he is an

individual with a disability, (2) he was otherwise qualified to

perform the duties of his position, (3) he worked for a program

or activity that received federal financial assistance, and (4)

he suffered an adverse employment action solely because of his

disability.2   The School District challenged the first, second

and fourth elements.   After reviewing the evidence in this case,

this Court agrees.

     Whether Prejean is an individual with a disability.

Although Prejean presented evidence that indicates he suffers

from depression, he did not present evidence that raised a

genuine issue of material fact about whether he is an individual

with a disability.   Prejean attested in an affidavit that at

times his depression prevented him from doing simple tasks like

mowing the grass or working on his car, and that his depression

made it difficult to attend work, but he failed to present

evidence that raised a question about whether his depression

limits his ability to perform a major life activity.   To show



     2
      See Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir.
1993).

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that he is substantially limited with regard to the activity of

working, a plaintiff must show that he is

     significantly restricted in the ability to perform
     either a class of jobs or a broad range of jobs in
     various classes as compared to the average person
     having comparable training, skills and abilities. The
     inability to perform a single, particular job does not
     constitute a substantial limitation in the major life
     activity of working.3

Prejean attested that his depression required him to take time

off from work from his job as a buyer, but did not raise a

question of fact about whether his depression rendered him unable

to work in a broad class of jobs.    Prejean also failed to present

evidence that indicated his ability to perform manual tasks at

home was substantially limited by his depression.   As a result,

the district court did not err in its determination that Prejean

failed to produce evidence that he is an individual with a

disability.4




     3
      29 C.F.R. § 1630.2(j)(3)(i).
     4
      After being placed on a deficiency plan, Prejean informed
his supervisor he was being treated for depression and that “when
[my] medication has been balanced, I will be able to perform my
duties in compliance with the expectations of the district.”
Prejean relies on Kimbro v. Atlantic Richfield Company, 889 F.2d
869 (9th Cir. 1989), to suggest the School District was obliged
to accommodate him while his medications were balanced.
Plaintiff Kimbro, however, presented evidence that his migraine
headaches constituted a handicap under Washington law. To the
extent Prejean complains the School District failed to
accommodate his depression, the claim fails because he did not
present evidence that raised a question about whether he is
disabled.

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     Whether Prejean was otherwise qualified to perform the

duties of his position.     “The term ‘qualified individual with a

disability’ means an individual with a disability who, with or

without reasonable accommodation, can perform the essential

functions of the employment position that such individual holds

or desires.”5    To determine whether an individual is otherwise

qualified for a given job, a court must first determine whether

the individual can perform the essential functions of the job,

and then determine whether any reasonable accommodation by the

employer would enable that person to perform those functions.6

In this case, the School District complained that Prejean did

not, or was     unable, to attend work and therefore was not

otherwise qualified to perform the duties of his position as a

buyer.

     An essential element of most jobs is an ability to appear

for work and to complete assigned tasks within a reasonable

period of time.7    Here, Prejean maintains he could have returned

to work as a buyer if the School District had granted him

additional leave.     The summary judgment evidence, however,

indicates Prejean did not ask for additional leave until he was

terminated.     But even if a belated request for additional leave

     5
      42 U.S.C. § 12111(8).
     6
      See Chandler, 2 F.3d at 1393-94.
     7
      See Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755,
759 (5th Cir. 1996).

                                   5
constituted a request for a reasonable accommodation, Prejean’s

assertion that he could have returned to work had he been given

additional leave is too conclusory to raise a genuine issue of

material fact about whether he was otherwise qualified for his

job as a buyer.   As a result, the district court did not err in

its determination that Prejean failed to produce evidence that he

is otherwise qualified for the essential functions of his former

job as a buyer.

     Whether Prejean was terminated solely because of his

disability.    To constitute a violation under the Rehabilitation

Act, an employee’s disability must play a role in the employer’s

decision making process and have a determinative influence on the

outcome.8   Although Prejean maintains the School District

terminated him because of his disabling depression, he failed to

present any evidence that suggests the School District terminated

him for any reason other than Prejean’s declining job

performance.   Prejean contends his depression caused his poor

performance, but he presented no evidence to support that

assertion other than his own conclusory opinion.    Notably,

neither of the notes written by Prejean’s doctors suggest that

depression caused Prejean’s performance problems.    As a result,

the district court did not err in determining Prejean presented

no evidence that raised a question of fact about whether he was

     8
      See Soledad v. U.S. Dept. of Treasury, 304 F.3d 500, 504
(5th Cir. 2002).

                                  6
terminated solely because of his alleged disability.

     Because Prejean failed to present summary judgment evidence

that raised a question of fact about whether he is disabled,

whether he is otherwise qualified to perform the duties of his

job as a buyer, and whether he was terminated solely because of

his alleged disability, the School District was entitled to

summary judgment on Prejean’s claim under the Rehabilitation Act.

Consequently, the district court did not err by granting the

School District’s motion for summary judgment on this claim.

                       Prejean’s FMLA Claim

     In its motion for summary judgment, the School District

maintained it was entitled to summary judgment on Prejean’s FMLA

claim because Prejean took FMLA leave when he requested it, and

because Prejean failed to give adequate notice of the need to

take additional leave before he was terminated.   The FMLA allows

eligible employees working for covered employers to take

temporary leave for medical reasons without the risk of losing

employment.9   Prejean maintains the School District improperly

denied his request for additional leave because he maintains the

School District knew that he returned to work with a partial

release–that is, that he might need additional time off from work

to balance his medications.   The record, however, does not



     9
      See 29 U.S.C. § 2601(b)(1) & (2); see also Hunt v. Rapides
Healthcare Sys., L.L.C., 277 F.3d 757, 763 (5th Cir. 2001).

                                 7
support this claim.   Instead, the summary judgment evidence

indicates although the School District granted Prejean’s request

for FMLA leave and approved leave from February 25 to June 30,

Prejean returned to work on March 20 with a note from his doctor.

The note read that “Prejean should be able to return to work

without restrictions on 3-20-00.”    The note did not indicate

Prejean might need additional time off to balance his medication

or that Prejean was only partially released for work.

     The School District terminated Prejean on April 28 after he

failed to complete items on his deficiency plan.    To the extent

he requested the balance of his earlier-approved FMLA leave,

Prejean waited until after he was terminated to ask for more

leave.   The FMLA, however, requires an employee to provide his

employer written notice at least 30 days before the leave or, if

the leave is not foreseeable, as soon as practicable.    Because

operation of the deficiency plan had not been suspended,

Prejean’s notice was not as soon as practicable because he was

released to work without restrictions, and he knew that he was

not meeting the requirements of the deficiency plan.    To have

given notice as soon as practicable, Prejean should have

requested leave as soon as he was unable to adequately meet the

requirements of his deficiency plan.    Because Prejean failed to

give the School District adequate notice of a request for FMLA

lease, the School District was entitled to summary judgment on

Prejean’s FMLA claim.   Consequently, the district court did not

                                 8
err by granting the School District’s motion for summary judgment

on this claim.

                            Conclusion

     Prejean failed to present summary judgment evidence that

raised a question of fact about the elements of his claim under

the Rehabilitation Act.   As a result, the district court did not

err by granting summary judgment on that claim.   Prejean also

failed to present summary judgment evidence that raised a

question of fact about whether he gave the School District notice

of a request to take additional FMLA leave.   As a result, the

district court did not err by granting summary judgment on that

claim.   Because the district court properly granted the School

District’s motion, this Court AFFIRMS the district court’s

judgment.

AFFIRMED.




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