     Case: 15-50133      Document: 00513305317         Page: 1    Date Filed: 12/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-50133
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
WILLIE L. STARTS, JR.,                                                  December 11, 2015
                                                                           Lyle W. Cayce
                                                 Plaintiff–Appellant            Clerk
v.

MARS CHOCOLATE NORTH AMERICA, L.L.C.,

                                                 Defendant–Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:14-CV-64


Before STEWART, Chief Judge, and CLEMENT and ELROD, Circuit Judges.
PER CURIAM: *
       Plaintiff-Appellant Willie L. Starts, Jr., sued his former employer,
Defendant-Appellee Mars Chocolate North America, L.L.C., for disability
discrimination and failure to accommodate in violation of the Americans with
Disabilities Act of 1990 (ADA), as amended by the ADA Amendments Act of
2008 (ADAAA), 42 U.S.C. § 12101 et seq. Starts appeals the district court’s
grant of summary judgment in Mars’s favor. Because there is no genuine issue




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-50133

of material fact as to whether Starts was a “qualified individual” under the
ADA, we AFFIRM.
                                             I.
       Starts worked for Mars from 1997 to 2013 at a Mars plant in Waco where
candy products are produced. At the time of Starts’s employment termination
in 2013, his work involved operating packing machinery, loading film onto
bagging lines, and preventative machine maintenance, as well as other tasks
like training and paperwork.
       Starts suffered a work-related back injury in February 2012.                   After
notifying Mars of the back injury, he received worker’s compensation benefits
and took leave under the Family and Medical Leave Act (FMLA). Starts’s back
injury was initially diagnosed as a back sprain or strain but developed into
multiple conditions, including lesion of the sciatic nerve, lumbar disc
degeneration, sciatica, and lumbar radiculopathy.                 Starts regularly saw a
doctor who provided Starts with medical work restrictions, which included at
times a fifty pound lifting restriction, a twenty pound lifting restriction, an
assignment of ‘light duty,’ and a four-hour per-day work restriction. Mars
complied with Starts’s medical work restrictions, and Starts continued to work.
       Prior to and during this time of accommodation, Starts accumulated
unauthorized absences. 1 Mars uses a point system to record unauthorized
absences, and, under Mars policy, eight or more attendance points could result
in termination of employment. By October 2012, Starts had accumulated 23.5
attendance points for that year and was given a final warning.




       1Some of Starts’s absences were covered by his FMLA leave benefits, but others were
not. Mars considered absences “unauthorized” if they were not authorized by medical
documentation or if they did not otherwise fall into other categories of authorized absences,
such as approved sick leave or vacation leave.


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                                      No. 15-50133

       At Starts’s final worker’s compensation medical exam on March 5, 2013,
his physician recommended that he not lift more than twenty pounds, but he
was otherwise cleared for full-time work of eight-hour shifts. Mars met with
Starts on March 7, 2013, to discuss accommodations.                     Mars agreed to
accommodate Starts’s lifting restriction and, after discussing accommodation
options, both Mars and Starts agreed that he should continue working in the
packing room where there were lifts to accommodate his lifting restriction.
Mars informed Starts that his FMLA benefits, which included his leave
benefits, were now exhausted and that he was expected to work his full eight-
hour shifts because no medical documentation permitted a reduced schedule.
       Thereafter, Starts missed the entire day of work on March 9 and left
work early on March 7, 8, 10, and 11.                Starts did not provide medical
documentation to justify those absences, nor were the absences otherwise
approved. 2 When Starts left early on March 11, 2013, he was told not to return
until Mars contacted him. While Starts was on leave, his supervisors reviewed
his attendance record. Eleven days later, upon completion of the review, Mars
terminated Starts’s employment because he had too many unapproved
absences. At the time of the termination, Starts had accumulated a total of 31
attendance points within the previous twelve months.
       Starts filed his complaint against Mars in March 2014, alleging that
Mars unlawfully discriminated against him in violation of the ADA by failing
to provide reasonable accommodations and by terminating his employment
because of his disability. On November 10, 2014, Mars filed a motion for
summary judgment seeking dismissal of Starts’s claims. The district court


       2 Starts alleges he was told by Mars to go home early on March 11 after he complained
of severe back pain. Mars disputes this, alleging that Starts left on his own. The disputed
fact is not material, as Mars’s reason for terminating Starts’s employment does not depend
on whether he was sent home or went home on his own.


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granted the motion on the bases that Starts was not “disabled” for ADA
purposes at the time of his termination and was not a “qualified individual”
because of his inability to attend work even with an accommodation. Starts
timely appealed.
                                        II.
      We review de novo a district court’s grant of summary judgment. Rogers
v. Bromac Title Servs., LLC, 755 F.3d 347, 350 (5th Cir. 2014). Summary
judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.” Id.; Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Rogers, 755 F.3d at 350. All facts and inferences are
construed in the light most favorable to the nonmoving party. Id.
      Starts asserts his disability discrimination and failure to accommodate
claims under the amended ADA.           “[T]o prevail on a claim of disability
discrimination under the ADA, a party must prove that (1) he has a disability;
(2) he is qualified for the job; and (3) the covered entity made its adverse
employment decision because of the party’s disability.” Neely v. PSEG Tex.,
Ltd., 735 F.3d 242, 245 (5th Cir. 2013) (alterations omitted). To prevail on a
failure to accommodate claim, a party must prove: “(1) the plaintiff is a
qualified individual with a disability; (2) the disability and its consequential
limitations were known by the covered employer; and (3) the employer failed
to make reasonable accommodations for such known limitations.” Id. at 247
(alterations omitted) (citing 42 U.S.C. § 12112(b)(5)).
      For either of Starts’s claims to survive summary judgment, the evidence
must establish at least a genuine dispute as to whether Starts was a “qualified




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                                      No. 15-50133

individual” at the time of the alleged unlawful discrimination. 3 EEOC v. LHC
Grp., Inc., 773 F.3d 688, 695 (5th Cir. 2014); see also Reeves v. Dollar Gen.
Corp., 180 F.3d 264, 1999 WL 274587, at *2 n.2 (5th Cir. Apr. 23, 1999) (“In
assessing whether the plaintiff is a qualified individual, we focus on whether
he or she was qualified at the time of his or her termination.”). An individual
is qualified for his or her job under the ADA if, “with or without reasonable
accommodation,” the individual “can perform the essential functions of the
employment        position     that     such      individual      holds     or    desires.”
42 U.S.C. § 12111(8).
       Here, Mars asserts that attendance is an essential function of Starts’s
job, and Starts does not contend otherwise. Starts argues, rather, that he
would have been able to perform the essential functions of his job if Mars had
provided him with a four-hour workday accommodation. We reject Starts’s
argument on two grounds. First, Starts never asked Mars to allow him to go
back to a four-hour workday. Second, for the reasons that follow, Starts’s
evidence does not create a genuine dispute as to whether he would have been
able to attend work as required even with a four-hour work restriction.
       Starts testified in his deposition that the reason for his work absences
was his severe back pain. To alleviate his back pain, Starts had to take
prescription pain medication, and because of the nature of his job, which
required working on machinery, Starts was not permitted to work while on
prescription pain medicine. In light of this evidence, the district court reasoned
that Starts was not a “qualified individual” because even if Mars had allowed

       3 The district court granted summary judgment for Mars on two grounds: (1) Starts
was not a “qualified individual,” and (2) Starts was not “disabled” under the amended ADA.
We are doubtful that the district court’s analysis of whether Starts was disabled conforms to
the standards of the ADAAA, especially in light of the guidance in the EEOC’s Appendix to
29 C.F.R. § 1630. But because we affirm the district court’s determination that Starts was
not a “qualified individual,” we need not reach the issue of whether Starts was disabled for
ADA purposes.


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Starts to return to a four-hour workday, there was no evidence that Starts
would have been able to work the entire four hours without having to leave due
to his back pain—which could, and did, occur at unpredictable times, including
within a four-hour shift. We agree. See Hypes v. First Commerce Corp., 134
F.3d 721, 727 (5th Cir. 1998) (holding that, even if plaintiff’s absences were
linked to his alleged disability, plaintiff was still not a “qualified individual”
for ADA purposes because (1) attendance was an essential function of his job
and (2) plaintiff failed to show that he could have attended work as required
even with the requested accommodation).
      AFFIRMED.




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