     Case: 15-60764      Document: 00513714839         Page: 1    Date Filed: 10/12/2016




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

                                      No. 15-60764                              FILED
                                                                         October 12, 2016
                                                                           Lyle W. Cayce
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,                                        Clerk

              Plaintiff - Appellant Cross-Appellee

v.

VICKSBURG HEALTHCARE, L.L.C.,

              Defendant - Appellee Cross-Appellant




                  Appeals from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 3:13-CV-895


Before REAVLEY, DAVIS, and JONES, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant      Equal     Employment        Opportunity        Commission
(“EEOC”) appeals the district court’s grant of summary judgment in favor of
Defendant–Appellee Vicksburg Healthcare, L.L.C., d/b/a Merit Health River
Region (“River Region”). The EEOC sued River Region under the Americans
with Disabilities Act (“ADA”) after Beatrice Chambers was terminated from
her nursing position while recovering from surgery to repair a torn rotator cuff.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60764
The district court ruled that the EEOC’s claims were barred under Cleveland
v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597 (1999).
Despite prevailing below, River Region cross-appeals from an adverse
evidentiary ruling.
                                        I.
      Beatrice Chambers worked for several years as a nurse with River
Region.   In 2011, she tore her rotator cuff, an injury requiring surgery.
Chambers underwent the operation and was granted twelve weeks of leave
under the Family Medical Leave Act (“FMLA”). As her FMLA leave wound
down, Chambers requested a two-week extension. Her supervisor, Sandra
Agnone, rejected the request. After Chambers told her physician, Dr. William
Porter, that she needed to return to work promptly upon the expiration of her
FMLA leave, Dr. Porter provided the necessary release. Dr. Porter stipulated
that Chambers was capable only of “light work” requiring “limited use” of her
left arm. When additional information was requested, Dr. Porter clarified that
Chambers should not lift, pull, or push anything weighing more than ten
pounds. After review of these limitations, River Region terminated Chambers
because of her injury and concomitant inability to perform at work.
      Chambers applied for temporary disability benefits the next day. One
claim form was filled out by Chambers, while the other was filled out by a
member of Dr. Porter’s staff, signed by Dr. Porter, and reviewed by Chambers.
The forms are not detailed but indicate that the disability was the result of a
rotator cuff tear and subsequent surgery, and also that the recovery date was
unknown at the time of submission. With the forms, Chambers represented
she was temporarily totally disabled.
      The EEOC commenced this action in 2012, alleging that River Region
violated the ADA by failing to provide Chambers a reasonable accommodation
and by terminating her. After discovery, River Region moved for summary
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                                 No. 15-60764
judgment, which the district court granted. The EEOC appeals that grant of
summary judgment, and River Region cross-appeals from the district court’s
decision to strike an exhibit filed with River Region’s reply.
                                       II.
                                       A.
      We review the grant of summary judgment de novo, “employing the same
criteria used” by the district court. Rogers v. Int’l Marine Terminals, Inc., 87
F.3d 755, 758 (5th Cir. 1996). Summary judgment is warranted “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.’” EEOC v. LHC Grp., Inc., 773 F.3d
688, 694 (5th Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).
                                       B.
      As the district court saw it, this case has one key fact: the day after her
termination, Chambers filed for disability benefits and, in doing so,
represented that she was temporarily totally disabled.           Because the ADA
protects only individuals “who, with or without accommodation, can perform
the essential functions of the employment position that such individual holds
or desires,” 42 U.S.C. § 12111(8), the district court found Chambers’ disability
claim problematic. Relying on Cleveland, it ruled that the EEOC failed to
provide a “sufficient explanation for the contradicting statements” between
Chambers’ claim of temporary total disability and the EEOC’s contention that
she was “qualified” for purposes of the ADA.
      Under Cleveland, “to survive judgment for the employer, a plaintiff must
address the apparent inconsistency between ‘qualified’ for employment under
the ADA and ‘disabled’ for [Social Security disability] benefits.” McClaren v.
Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 463 (5th Cir. 2005). Cleveland
applies in contexts beyond Social Security disability benefits, and applies here,
where the benefits claimed are for temporary total disability. “A plaintiff’s
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                                  No. 15-60764
explanation of the apparent inconsistency must be ‘sufficient to warrant a
reasonable juror’s concluding that, assuming the truth of, or the plaintiff’s good
faith belief in, the earlier statement, the plaintiff could nonetheless perform
the essential functions of her job, with or without reasonable accommodation.’”
Id. (quoting Cleveland, 526 U.S. at 807, 119 S.Ct. at 1604).
      Where a claim of total disability “implies a context-related legal
conclusion,” the necessary “sufficient explanation” can simply be that the
claimant could have performed the essential duties of the job if granted a
reasonable accommodation. Cleveland, 526 U.S. at 795, 806, 119 S.Ct. at 1601,
1603. Thus, in Giles v. General Electric Co., a case involving “no specific
[factual] assertions,” this Court was satisfied by the plaintiff’s contention “that
a reasonable accommodation would enable him to work at his old position,
despite [his] impairments.” 245 F.3d 474, 485 (5th Cir. 2001).
      This case is like Cleveland and Giles. Chambers’ claim that she was
temporarily totally disabled for the purposes of private disability benefits is
not inconsistent with the claim that she could work if provided an
accommodation. See Cleveland, 526 U.S. at 802–03, 119 S.Ct. at 1602 (claims
to disability benefits and the protections of the ADA “can comfortably exist side
by side” because, for example, the definition of disabled for purposes of
disability benefits “does not take the possibility of ‘reasonable accommodation’
into account”). As the Court observed in Cleveland, “an ADA suit claiming that
the plaintiff can perform her job with reasonable accommodation may well
prove consistent with [a disability benefits] claim that the plaintiff could not
perform her own job (or other jobs) without it.” Id. at 803, 119 S.Ct. at 1602.
      The EEOC bore the burden of providing this explanation to the district
court and did so.    Specifically, the EEOC cited Cleveland when pointing out
that the definition of “qualified individual” in the ADA was not incompatible
with the definition of “disabled” within the insurance policy, and it further
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                                       No. 15-60764
explained that “nothing in the [disability claim forms] indicate that Chambers
represented that she was unable to perform the essential functions of her job
with or without an accommodation.” The district court erred by failing to
recognize that, under the circumstances, this explanation sufficed. 1
                                              C.
       According to River Ridge, even if Cleveland does not bar the EEOC’s
action, there are other reasons to affirm the judgment in its favor. We “may
affirm summary judgment on any basis raised below and supported by the
record.” E.E.O.C. v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014), as revised
(Sept. 18, 2014). Here, however, disputed fact issues prevent us from doing so.
We address River Region’s alternative arguments only briefly.
       (1) River Region contends that it twice offered Chambers a reasonable
accommodation in the form of clerical work, which offers she ignored or
rejected. This first offer was undisputedly made, but made at a time when
Chambers was unable to return to work and on FMLA leave.                          Chambers
declined the offer on the advice of her doctor, and River Region does not argue
that this initial rejection matters. It instead argues that the offer remained
open and that Chambers’ failure to later accept constitutes a rejection of a
reasonable accommodation. The proposition that the offer survived Chambers’
rejection is legally dubious. In any event, as the EEOC has shown, the conduct
of the parties around the time of Chambers’ termination is circumstantial
evidence that there was no known offer to take a light-duty clerical position.
Meanwhile, River Region has provided no affirmative evidence that the offer



       1 In cases where the claim for disability benefits is supported by specific facts, those
factual statements must be explained if they are inconsistent with a claim to be “qualified”
under the ADA. See, e.g., Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 480 (5th Cir.
2000); McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 466 (5th Cir. 2005). This
case involves no factual representations that create doubts as to Chambers’ ability to work
with a reasonable accommodation, and that line of cases is not implicated.
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somehow remained outstanding. The alleged second offer fares no better for
the simple reason that, according to evidence presented by the EEOC, it was
never made. At this stage, we must credit the EEOC’s evidence. Dunn-
McCampbell Royalty Interest, Inc. v. Nat'l Park Serv., 112 F.3d 1283, 1286 (5th
Cir. 1997).
      (2) River Region contends that Chambers never requested light duty as
a reasonable accommodation. This argument is meritless. When requesting
a special accommodation, “[s]pecial words, like ‘reasonable accommodation,’
need not be uttered.” Delaval v. PTech Drilling Tubulars, L.L.C., 824 F.3d 476,
481 (5th Cir. 2016). Rather, “[t]he employee must explain that the adjustment
in working conditions or duties she is seeking is for a medical condition-related
reason.” E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 621 (5th
Cir. 2009).
      Here, Chambers presented doctor’s certifications clearing her to work
with restrictions. The first of these forms indicated a “Light Work” restriction.
The second elaborated: “No lifting, no pulling, no pushing anything greater
than 10 pounds.” These forms were submitted to River Region. A jury could
reasonably view them as a request for a light-duty accommodation.            See
Chevron Phillips Chem. Co., 570 F.3d at 621.
      (3) Assuming the request for light duty was made, River Region contends
that light duty was inconsistent with the “essential functions” of Chambers’
duties. More specifically, River Region contends that lifting or pushing more
than ten pounds are essential functions of Chambers’ job. At the outset, we
note that this argument is hard to square with River Region’s claims that it
could have and would have accommodated Chambers by giving her clerical
work during her recovery.      In any event, fact issues preclude summary
judgment.


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                                  No. 15-60764
      It is undisputed that Chambers could not safely lift or push more than
ten pounds at the time in question.         If such tasks represent “essential
functions” of her nursing duties, the ADA would offer her no protections. See
42 U.S.C. §§ 12111(8), 12112(a). “Fact-finders must determine whether a
function is ‘essential’ on a case-by-case basis.” LHC Grp., Inc., 773 F.3d at 698.
Chambers testified she couldn’t “remember having to lift more than 10 pounds”
as part of her duties, and her colleague, Lorraine Wilson, has provided a
detailed affidavit that, if true, establishes that such exertions are virtually
never required. While River Region’s witnesses testified to the contrary, this
conflict merely establishes an “actual controversy” of fact rendering summary
judgment improper. See Laughlin v. Olszewski, 102 F.3d 190, 193 (5th Cir.
1996). At oral argument, counsel for River Region suggested we reject the
EEOC’s evidence as self-serving. But this is summary judgment, and we may
not weigh the evidence or make credibility determinations.          Heinsohn v.
Carabin & Shaw, P.C., Case No. 15-50300, 2016 WL 4011160, at *13–14 (5th
Cir. July 26, 2016).
      River Region also contends that a written job description in this case
establishes that the essential functions of Chambers’ duties include lifting and
pushing more than ten pounds.         While written job descriptions warrant
deference, “this deference is not absolute,” and we must ask “‘whether the
employer actually requires employees in the position to perform the functions
that the employer asserts are essential.’” LHC Grp. Inc., 773 F.3d at 697–98
(quoting Interpretive Guidance on Title I of the Americans With Disabilities
Act, 29 C.F.R. pt. 1630, app. § 1630.2(n)). LHC Group demonstrates that,
consistent with ordinary rules governing summary judgment, a written job
description is not given dispositive weight in the face of contrary evidence.
Summary judgment on this basis would be improper.


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                                  No. 15-60764
      (4) Based on the foregoing, summary judgment was improper.             The
parties have also briefed and argued questions relating to Chambers’ request
for two-week leave as an alternative reasonable accommodation. We need not
reach these issues and decline to do so.
                                       III.
      River Region’s cross-appeal merits little attention. In seeking summary
judgment, River Region attempted to introduce a report from the EEOC’s
expert witness Bruce Brawner regarding the essential functions of Chambers’
duties. We have authority to correct only prejudicial errors. See Fed. R. Civ.
P. 61. The expert report at issue only deepens the factual dispute regarding
the essential functions of Chambers’ duties. River Region has not been harmed
by the district court’s refusal to consider the evidence, and there is no basis to
reverse the ruling. As the EEOC acknowledges, River Region remains free to
introduce the evidence in subsequent proceedings.
                                       IV.
      Chambers’ claim to temporary total disability, made the day after she
was terminated from her job because of a disability, does not prevent her from
contending that she was able to work if granted a reasonable accommodation.
The district court’s contrary conclusion was incorrect. Further, this record
contains no alternative basis for affirming that court’s judgment.           The
judgment is REVERSED and the case REMANDED for further proceedings.




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