                                             United States Court of Appeals
                                                      Fifth Circuit
                                                     F I L E D
                                                    December 10, 2003
             In the
                                                  Charles R. Fulbruge III
United States Court of Appeals                            Clerk
      for the Fifth Circuit

         _______________

           m 02-31195
         Summary Calendar
         _______________

          PETER VITALE,

                            Plaintiff-Appellant,

             VERSUS

    GEORGIA GULF CORPORATION,

                            Defendant-Appellee.


       ***************

         _______________

           m 02-31264
         Summary Calendar
         _______________

          PETER VITALE,

                            Plaintiff-Appellee,

             VERSUS

    GEORGIA GULF CORPORATION,

                            Defendant-Appellant.
                                     _________________________

                             Appeals from the United States District Court
                                 for the Middle District of Louisiana
                                            m 00-858-D
                                   _________________________



Before SMITH, DEMOSS, and STEWART,                         original position.3 After leaving Georgia Gulf,
  Circuit Judges.                                          he sued.4 At the conclusion of the jury trial,
                                                           Georgia Gulf successfully moved for j.m.l.,
JERRY E. SMITH, Circuit Judge:*                            then unsuccessfully sought attorney’s fees pur-
                                                           suant to 42 U.S.C. § 12205.
    Peter Vitale sued Georgia Gulf Corporation
(“Georgia Gulf”) under the Americans with                                        II.
Disabilities Act (“ADA”), 42 U.S.C. § 12101                   We review a j.m.l. de novo. Delano-Pyle v.
et seq. He appeals a FED. R. CIV. P. 50 judg-              Victoria County, 302 F.3d 567, 572 (5th Cir.
ment as a matter of law (“j.m.l.”). Georgia                2002), cert. denied, 124 S. Ct. 47 (2003). We
Gulf appeals the denial of attorney’s fees.                review all the evidence and “must draw all rea-
Finding no error, we affirm.                               sonable inferences in favor of the nonmoving
                                                           party.” Reeves v. Sanderson Plumbing
                        I.                                 Prods., Inc., 530 U.S. 133, 149 (2000). “[A]
   Georgia Gulf employed Vitale in a variety               court may not render [j.m.l.] unless a party has
of capacities.1 While working as a pipefitter’s            been fully heard on an issue and there is no le-
helper, Vitale injured his back. Because a neu-            gally sufficient evidentiary basis for a
rosurgeon then limited the kind of work Vitale             reasonable jury to find for that party on that
could perform,2 Vitale could not return to his             issue.” Fitzgerald v. Weasler Eng’g, Inc., 258
                                                           F.3d 326, 337 (5th Cir.), amended, 274 F.3d

   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                              2
termined that this opinion should not be published             (...continued)
and is not precedent except under the limited cir-         restrictions are permanent . . . because of the
cumstances set forth in 5TH CIR. R. 47.5.4.                degenerative condition of his lumbar spine.”
                                                              3
   1
     Vitale worked as a maintenance technician, in-             Georgia Gulf maintains that Vitale’s doctors
volving a number of duties, including fire-watch-          never released him to work for it. Vitale contends
ing, hold-watching, and pipe-fitting.                      that he pursued “light duty” positions but was re-
                                                           peatedly told that none was available. Adopting ei-
   2
     The neurosurgeon stated Vitale cannot lift            ther contention does not affect this appeal.
“over 10 pounds frequently or 20 pounds occa-
                                                              4
sionally. He may not sit or stand over one hour                 Vitale also sued under the Louisiana equiv-
without breaks. He may not stoop, crawl, climb             alent of the ADA, LA. R.S. 23:303. Neither party
ladders, or perform overhead work[.] All these             discusses the state claims to any significant extent,
                                      (continued...)       however.

                                                       2
881 (5th Cir. 2001).                                     filled other, less-demanding posts6 and that
                                                         Georgia Gulf had moved individuals with
   The ADA, 42 U.S.C. § 12112(a), forbids                similar disabilities into such posts. Vitale,
covered employers from discriminating                    however, produced no evidence that Georgia
“against a qualified individual with a disability        Gulf needed to fill a vacant position that would
because of the disability of such individual,”           have accommodated his restrictions. “For the
with regard to, among other things, “terms,              accommodation . . . to be reasonable, it is clear
conditions, and privileges of employment.” As            that a position must first exist and be vacant.
one of the “essential elements” of his claim,
Vitale must prove that he “was a qualified per-             Under the ADA, an employer is not
son with a disability” at the time of the alleged        required to give what it does not have.”
discrimination, Rizzo v. Children’s World                Foreman v. Babcock & Wilcox, 117 F.3d 800,
Learning Ctrs., Inc., 213 F.3d 209, 212 (5th             810 (5th Cir. 1997). Vitale does not contest
Cir. 2000),5 which means a person who “with              the fact that Georgia Gulf did not need to fill
or without reasonable accommodation, can                 a vacant light duty post. Again, he merely
perform the essential functions of the                   asserts that Georgia Gulf’s assignments of
employment position that such individual holds           injured individuals to temporary light duty
or desires,” 42 U.S.C. § 12111(8). A                     positions indicates that he should receive a
“reasonable accommodation” includes “job re-             light duty assignment of indefinite duration.7
structuring, part-time or modified work
schedules, reassignment to a vacant position,”
and general concessions involving training and              6
facilities. 42 U.S.C. § 12111(9).                             Georgia Gulf’s Human Resources Supervisor
                                                         indicated that Vitale could have filled the fire
                                                         watch position or positions involving the moni-
   Vitale failed to produce evidence from
                                                         toring and checking for leaks in the pipes.
which a reasonable jury could find that he was
a qualified individual with a disability. Based             7
                                                              Vitale’s sole authority in support of his con-
on the testimony of his doctor and as admitted           tention that “the creation of such a position to ac-
in Vitale’s own brief, he could not continue,            commodate similarly situated employees is proof
with his limitations on lifting and movement,            that such a position did . . . exist” does not support
working in his prior position. Thus, to satisfy          his case at all. See Burch v. City of Nacogdoches,
the “qualified individual” requirement, Vitale           174 F.3d 615, 621 n.11 (5th Cir. 1999) (“Had
needed to produce evidence of a reasonable               [plaintiff] shown that the City treated him dif-
accommodation, as defined in § 12111(9), that            ferently from others similarly situated by not re-
Georgia Gulf could have provided.                        assigning him under identical conditions, his posi-
                                                         tion on appeal would have been much stronger”
                                                         (emphasis added)). Reassignment is not equivalent
  Vitale largely points to Georgia Gulf
                                                         to creating a new position. One district court in
employees who testified that he could have               this circuit has held that accommodations to some
                                                         employees do not require similar accommodations
                                                         to all similarly-situated employees. Wilburn v.
   5
     See also Daugherty v. City of El Paso, 56           Lucent Techs., Inc., 2000 U.S. Dist. LEXIS
F.3d 695 (5th Cir. 1995) (The ADA “prohibits em-         17520, at *14 (N.D. Tex. 2000) (stating that
ployment discrimination against qualified individ-       “creating a light-duty position . . . is not a
uals with disabilities, no more and no less.”).          ‘reasonable’ [accommodation]”).

                                                     3
   Without evidence to show that he either                   Christiansburg standard.
could have performed his previous job or
could have filled a vacant opening, Vitale is                    Although Vitale did not succeed on his
not a qualified individual with a disability, so a           ADA claim, the district court did not abuse its
reasonable jury could not conclude that Geor-                “sound discretion” in denying attorney’s fees.
gia Gulf discriminated in violation of the ADA.              EEOC v. Tarrant Distribs., Inc., 750 F.2d
Therefore, the district court did not err in                 1249, 1250 (5th Cir. 1984) (citing Christians-
granting the rule 50 motion.                                 burg). Although Georgia Gulf’s assignments
                                                             of injured employees to light duty positions do
                         III.                                not excuse Vitale from the ADA’s
   Because it obtained a j.m.l., Georgia Gulf                requirements of a “qualified individual with a
asserts it is entitled to attorney’s fees.8 We re-           disability,” those assignments render this suit
view a ruling on attorney’s fees for abuse of                less frivolous or unreasonable.
discretion. No Barriers, Inc. v. Brinker
Chili’s Tex., Inc., 262 F.3d 496, 498 (5th Cir.                 The district court properly granted j.m.l.
2001). The ADA fee-shifting provision has                    and denied attorney’s fees. The judgment is
language similar to that of title VII and 42                 AFFIRMED.
U.S.C. § 1988. Consequently, the doctrines
from these two provisions apply to the case at
hand. No Barriers, 262 F.3d at 498.

   Although Georgia Gulf effectively cites pre-
cedent regarding the circumstances in which a
court may9 award attorney’s fees, it does not
provide examples of when a court must award
fees to prevailing defendants. In contrast to
prevailing plaintiffs in civil rights actions, who
“should ordinarily recover an attorney’s fee
unless special circumstances would render
such an award unjust,” Newman v. Piggie
Park Enters., Inc., 390 U.S. 400 (1968), pre-
vailing defendants may receive fees under the

   8
     42 U.S.C. § 12205 (“In any action . . . com-
menced pursuant to this chapter, the court[,] in its
discretion, may allow the prevailing party . . . a
reasonable attorney’s fee . . . .”).
   9
     A prevailing defendant may not receive fees
unless the plaintiff’s claim “was frivolous, unrea-
sonable, or groundless, or that the plaintiff con-
tinued to litigate after it clearly became so.” Chris-
tiansburg Garment Co. v. EEOC, 434 U.S. 412,
422 (1978).

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