                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 98-51154
                           Summary Calendar


AVA Y FULMER,

                                            Plaintiff-Appellant,

                                versus

GEORGE GERVIN YOUTH CENTER, INC.,

                                            Defendant-Appellee.



           Appeal from the United States District Court
                 for the Western District of Texas
                           (SA-97-CV-142)


                            July 19, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Ava Fulmer brings this appeal of a summary judgment disposing

of her disability discrimination lawsuit against George Gervin

Youth Center, Inc. We review the district court’s grant of summary

judgment de novo, applying the same standards as the district

court.   See Hypes v. First Commerce Corp., 134 F.3d 721, 725 (5th

Cir. 1998).    Our review supports the determination of the district

court; hence, we AFFIRM.

     Fulmer contends that she was fired because of her disability

-- severe migraine headaches that occasionally spawned debilitating

     *
      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this opinion should not be published and is not precedent except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.
seizures.       In support of her claim, Fulmer alleges that she was

fired after her supervisor, Barbara Hawkins, witnessed one of the

seizures and told Fulmer that she was being terminated because of

liability concerns associated with Fulmer’s condition.          Fulmer

points to a memo signed by Hawkins which states that Fulmer was

“laid off . . . due to medical reasons.”      The Center counters that

Fulmer was terminated due to her excessive absenteeism.

       Even if the court accepts Fulmer’s contentions as true -- that

the Center fired her because of her disability and that the

absenteeism rationale offered by the Center is a pretext -- she

still must first establish that she was “qualified” for the job

under the A.D.A to prevail on her claim.        See Hypes, 134 F.3d at

726.       That is, Fulmer must have been able to perform the essential

functions of her job with or without reasonable accommodation. See

42 U.S.C. § 12111(8).1       Whether Fulmer was qualified for the job

was the central issue in the court below.

       The district court relied upon two alternative bases for

granting the Center’s motion for summary judgment, both of which

relate to whether Fulmer was qualified to perform her job at the

Center with no more than reasonable accommodation.          First, the

court held that Fulmer was estopped from claiming that she was a

qualified person with a disability because, throughout the entire

       1
      To qualify for relief under the Americans with Disabilities
Act, a plaintiff must establish that she is (1) “disabled” within
the meaning of the act; (2) qualified (with no more than a
reasonable accommodation) to perform the essential functions of the
job; and (3) suffering from an adverse employment action taken
because of her disability. See Robertson v. Neuromedical Ctr., 161
F.3d 292, 294 (5th Cir. 1998).

                                     2
term   of     her   employment          with   the   Center,    she     had    a    pending

application for social security disability benefits.                        Citing Fifth

Circuit       precedent,         the    district     court    stated    that       Fulmer’s

application for social security disability benefits created a

rebuttable      presumption            that   she   was   judicially     estopped      from

asserting that she was a qualified individual with a disability for

A.D.A. purposes.            The court, emphasizing that the presumption was

strong    and      that     the   circumstances       wherein    a     plaintiff     could

overcome      it    were     highly      limited,    determined      that     Fulmer   was

judicially estopped to claim that she was a qualified person with

a disability.

       A recent Supreme Court decision unsettles the district court’s

analysis.       In Cleveland v. Policy Management Sys. Corp., No. 97-

1008, 1999 WL 320795 (U.S. May 24, 1999), the Court rejected this

circuit’s rule that simultaneous pursuit of both social security

disability benefits and an A.D.A. claim erects a strong presumption

against the plaintiff’s A.D.A. success.                      Instead, the Court held

that there was no presumption and that, to survive a summary

judgment motion, an A.D.A. plaintiff must explain why the claim for

disability benefits is consistent with the A.D.A. claim. The Court

noted that there are many situations when the two claims can co-

exist.      For example, because the Social Security Administration

does    not     take      into     account     the    possibility      of     “reasonable

accommodation”         in    determining       benefits      eligibility,      an    A.D.A.

plaintiff’s claim that she can perform her job with reasonable




                                               3
accommodation may prove consistent with her social security claim

that she could not perform her own job (or other jobs) without it.

      Thus, the district court applied an incorrect standard in

examining the effect of her claim for social security disability

benefits on Fulmer’s A.D.A. lawsuit.                    Further, it appears that,

under the Supreme Court’s recently enunciated standard, summary

judgment should not have been granted on the basis of estoppel

because Fulmer contends in her A.D.A. claim that she could have

performed   her    job     at    the     Center       had     there   been    reasonable

accommodation of her disability.                 That is, her A.D.A. claim fits

comfortably    beside      her    claim     for       social    security      disability

benefits, so estoppel should not apply.

      The district court’s second basis for granting the Center’s

motion for summary judgment was that Fulmer was not a qualified

individual with a disability because Fulmer’s proposed reasonable

accommodation did not permit her to fulfill her duties.                          Fulmer’s

condition caused her to miss at least 27 days of work during her

nine-month tenure at the Center. Fulmer maintains that by means of

a reasonable accommodation -- working at home during the days when

she   suffered      from        migraines        --     she     fulfilled        her   job

responsibilities.        The district court disagreed.                    It found that

Fulmer’s    job    as      a    program         director       entailed      recruiting,

supervising,      and    coordinating           staff    members      and    volunteers;

establishing a community presence; and attending events sponsored

by the Center.      The court determined that regular attendance was

necessary   to     perform       these    essential         functions       of   Fulmer’s


                                            4
position, so working at home would not qualify as a reasonable

accommodation.

     The district court’s holding can be upheld based on this

second alternative rationale.   “‘An employer is not required to

allow disabled workers to work at home, where their productivity

inevitably would be greatly reduced.’” Hypes, 134 F.3d at 726-27

(quoting Vande Zande v. State of Wis. Dep’t of Admin., 44 F.3d 538,

544 (7th Cir. 1995)).   In this case, the very nature of Fulmer’s

position dictates that Fulmer could not adequately fulfill her job

responsibilities by working from home; Fulmer was part of a team,

and the efficient functioning of the team necessitated the presence

of all its members.   Indeed, courts are in agreement that regular

attendance is an essential function of most jobs.   See id. at 727

(listing cases).

     AFFIRMED.




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