     Case: 12-20034        Document: 00512140008           Page: 1     Date Filed: 02/08/2013




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

                                                                                FILED
                                                                             February 8, 2013

                                        No. 12-20034                          Lyle W. Cayce
                                                                                   Clerk

TINA MILTON,

                                                    Plaintiff - Appellant
v.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                    Defendant - Appellee



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


Before JOLLY, PRADO, and HIGGINSON, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
       Tina Milton, a former Texas Department of Criminal Justice (“TDCJ”)
employee, who is allergic to scented products used in her workplace, appeals the
district court’s summary judgment for TDCJ on her Americans with Disabilities
Act (“ADA”) and Family and Medical Leave Act (“FMLA”) claims.1 For the
following reasons, we AFFIRM the judgment of the district court.




       1
         Milton also argues that the district court abused its discretion in restricting discovery
in this case. Although the district judge’s management of the case was unusual, additional
discovery would not have raised facts that would have made summary judgment unwarranted.
As such, any abuse of discretion in the management of discovery was harmless.
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                                  No. 12-20034

                                        I.
      Tina Milton was a clerical employee with TDCJ for quite a while: from
November 1990 until April 19, 2007. She was employed at the Wynne Unit in
Huntsville, Texas, where she was responsible for looking for coded gang
messages in inmate mail. She was terminated, administratively, in April 2007
after failing to provide medical documentation verifying her FMLA leave.
      Milton’s reaction to the use of scented candles and wall plug-ins around
her work area is the basis of her ADA claim and of this current litigation. She
generally suffers from numerous respiratory issues, including asthma, allergies,
and a severe sensitivity to perfumed or scented products. Exposure to scented
candles, wall plug-ins, and room deodorizers causes her asthma, headaches,
nausea, chest tightness, coughing, rhinitis, and sinusitis. She mitigates these
side effects by self-segregating in public and social settings in an attempt to
avoid exposure to scented products. Her sensitivity, however, usually did not
preclude her from doing her job. On the other side of the ledger is the reason for
scented products at the Wynne Unit: it is located in a century old building and
the dust and musty smells are overwhelming to the large majority of its
employees.
      Milton first called to the attention of TDCJ her problem with the use of
scented products in the workplace in 2006, following her return to work from
sinus surgery. She addressed the issue informally with her TDCJ supervisors,
asking that the scented products be removed. Milton was contacted by an
assistant warden, and she asked the assistant warden whether he could remove
the plug-ins and candles because of her allergies, asthma, and breathing
problems.
      The informal process, however, did not resolve the situation. So, Milton
filed a formal request for ADA accommodation in December 2006. Her requested
accommodation simply stated, “No plug in or candles. Strong [odors].” TDCJ’s

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                                  No. 12-20034

ADA coordinator, Tracy Bailey, denied the request. Bailey viewed Milton as
being allergic to everything airborne–not just the scented candles and plug-ins
used in Milton’s current workspace. After denying the initial accommodation
request, Bailey allowed Milton 90 days to find another available TDCJ position
that could accommodate her respiratory sensitivity. Milton brought other
positions that were available to Bailey’s attention, such as in inmate records, but
Bailey determined that they equally were unsuitable due to the presence of dust.
Because no suitable alternative was found, TDCJ closed Milton’s ADA file in
March 2007.
      The adverse impact on Milton’s health reached its peak when she took
FMLA leave, effective January 3, 2007. Milton stated that her body was worn
down, she was sick, in pain, her face was swollen, and her blood pressure was
elevated. A condition of Milton’s leave, however, was that she submit medical
certification of her continued illness, as provided by the FMLA. Milton provided
this certification in January 2007, and continued to do so until March 2007.
TDCJ never received Milton’s March 2007 certification. TDCJ has no record of
receiving a fax from the medical provider, and the phone records do not show
that the medical provider sent a fax to TDCJ. Milton was not informed of the
missing March certification until April 19, after she had been administratively
terminated. It seems that no one questions that TDCJ never received the March
certification, for whatever reason.
                                        II.
      We review the district court’s decision granting summary judgment de
novo, applying the same standards as the trial court. Griffin v. United Parcel
Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011). “Summary judgment is proper if
the evidence shows that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” Id. Evidence
is construed “in the light most favorable to the non-moving party . . . draw[ing]

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                                     No. 12-20034

all reasonable inferences in that party’s favor.” Id. “[C]onclusory allegations,
unsubstantiated assertions, or only a scintilla of evidence” are insufficient to
create a genuine issue of material fact. Warfield v. Byron, 436 F.3d 551, 557 (5th
Cir. 2006). Summary judgment can be affirmed “on any grounds supported by
the record,” even if we do “not agree with the reasons given by the district court
to support summary judgment.” Lifecare Hosp., Inc. v. Health Plus of La., Inc.,
418 F.3d 436, 439 (5th Cir. 2005).
                                           III.
       Under the ADA, “No covered entity shall discriminate against a qualified
individual on the basis of 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 qualified individual is a person “who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” § 12111(8). Moreover, disability is
defined as: “(A) a physical or mental impairment that substantially limits one
or more major life activities [of such individual]; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.” § 12102(1).
Thus, in order to make out a prima facie case, Milton must show: “(1) [she]
suffers from a disability; (2) [she] is qualified for the job; (3) [she] was subject to
an adverse employment action; and (4) [she] was replaced by a non-disabled
person or was treated less favorably than non-disabled employees.” Daigle v.
Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).
       “Merely having an ‘impairment’ does not make one disabled for purposes
of the ADA.” Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002).2


      2
         Although Williams was overruled by the ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553 (2008), we held in Agro Distribution that the “changes do not apply
retroactively.” EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009). The

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Rather, the impairment must substantially limit the individual. See EEOC v.
Agro Distribution, LLC, 555 F.3d 462, 469 (5th Cir. 2009). “‘Substantially limits’
means a person is ‘[s]ignificantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the average
person in the general population can perform that same major life activity.’” Id.
(quoting 29 C.F.R. § 1630.2(j)(1)(ii) (2008)). In Agro Distribution, we restated
that “whether an impairment is substantially limiting ‘is determined in light of
(1) the nature and severity of the impairment; (2) its duration or expected
duration; and (3) its permanent or expected permanent or long-term impact.’”
Id. at 470 (quoting Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir.
1995)). Furthermore, this is “an individualized assessment that considers the
effects of any mitigating measures taken by the individual.” Id.; see also Sutton
v. United Air Lines, Inc., 527 U.S. 471, 482 (1999) (“A ‘disability’ exists only
where an impairment ‘substantially limits’ a major life activity, not where it
‘might,’ ‘could,’ or ‘would’ be substantially limiting if mitigating measures were
not taken.”).
       Relying on an individualized assessment of the facts of Milton’s case and
our prior precedent on substantial limitations, we hold that Milton has failed to
demonstrate a genuine issue of material fact as to whether she suffers from a
disability. Although there is ample evidence that Milton’s condition affects her
life activities, we generally have not recognized disabilities based on conditions
that the individual can effectively mitigate. See, e.g., Agro Distribution, 555 F.3d
at 470-71; Hamilton v. S.W. Bell Tel. Co., 136 F.3d 1047, 1050-51 (5th Cir. 1998)
(finding no disability because of the temporary nature of the post-traumatic
stress disorder and its impact on the appellant’s ability to work); see also Muller


events giving rise to Milton’s case all took place before the enactment of 2008 Amendments,
and as such, the amendments do not apply.

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                                  No. 12-20034

v. Costello, 187 F.3d 298, 314 (2d Cir. 1999) (finding no disability because
appellant did not suffer enough difficulty breathing when off the job to find that
his condition substantially limited a major life activity). Moreover, there are
significant differences between Milton’s condition and the arguably analogous
case of Albert v. Smith’s Food & Drug Centers, Inc., where the Tenth Circuit
concluded that the individual had raised a genuine issue of material fact as to
whether she did suffer from a disability. 356 F.3d 1242, 1245 (10th Cir. 2004).
In Albert, “a large variety of materials [could] trigger an asthma attack . . . and
such an episode render[ed] her completely unable to function.” Id. Unlike
Milton, however, the individual in Albert was prescribed medication, which still
did not fully control her breathing problems, and she was “symptomatic most of
the time.” Id. at 1251. In addition, the individual made “frequent trips to the
emergency room” and had been hospitalized multiple times. Id. By contrast,
Milton was able to mitigate her symptoms and was not consistently restricted
in her ability to breathe. Milton’s sensitivity to perfumed odors certainly caused
her discomfort and inconvenience, but this condition was narrowly restricted in
time and place and could be avoided in the larger context outside of the
particular workplace at a particular employer. In any event, her disability could
not, in totality, be called severe and in no case was nearly as severe as that
suffered by the individual in Albert; it simply did not rise to the level of a
substantial impairment of the major life activity—that is, the ability to engage
in productive and compensable work for which she was qualified by virtue of her
experience and training. Thus the district court properly concluded, under the
pre-ADA Amendments law that we apply in this case, that Milton did not raise
a genuine issue of material fact as to whether she was a qualified individual
with a disability within the meaning of the ADA.




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                                   No. 12-20034

                                         IV.
      We now turn to her FMLA claim.             Under the FMLA, “[a]n eligible
employee of a covered employer has the right to take unpaid leave for a period
of up to 12 workweeks in any 12-month period when the employee has ‘a serious
health condition that makes [him or her] unable to perform the function of [his
or her] position.’” Bocalbos v. Nat’l W. Life Ins. Co., 162 F.3d 379, 383 (5th Cir.
1998) (quoting 29 U.S.C. § 2612(a)(1)(D)). Moreover, “[f]ollowing a qualified
leave period, the employee is entitled to reinstatement to the former position or
an equivalent one with the same benefits and terms.” Id. Employers, however,
can require medical certification for FMLA leave. See 29 C.F.R. § 825.305(b)
(“The employee must provide the requested certification . . . within 15 calendar
days after the employer’s request, unless it is not practicable under the
particular circumstances to do so despite the employee’s diligent, good faith
efforts.”). “A certification that is not returned to the employer is not considered
incomplete or insufficient, but constitutes a failure to provide certification,” and
the regulations do not require employers to advise employees of missing
certifications. Id. § 825.305(c). If the employee fails to provide certification, “the
employer may deny the taking of FMLA leave.” Id. § 825.305(d).
      Thus, the only issue the district court needed to consider was whether
Milton submitted the required medical certification before April 12, 2007. There
is no genuine dispute that the certification was not timely received. Although
Milton argues that TDCJ never informed her that she could be discharged for
failing to provide the medical certification, the request for leave states, “Your
failure to submit proper documentation as required by policy may be cause for
disciplinary action or separation from employment.” (Emphasis added.) The
district court thus properly granted summary judgment for TDCJ on the FMLA
claim.



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                                 No. 12-20034

                                      V.
     We hold that Milton did not suffer from a disability within the meaning
and coverage of the ADA. Furthermore, there is no dispute that TDCJ did not
receive Milton’s FMLA certification before the deadline. The district court’s
judgment is therefore
                                                                   AFFIRMED.




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