     Case: 10-20540 Document: 00511380906 Page: 1 Date Filed: 02/14/2011




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

                                                 FILED
                                                                          February 14, 2011
                                     No. 10-20540
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




ALFRED R. TORONKA,

                                                   Plaintiff-Appellant,

versus

CONTINENTAL AIRLINES, INC.,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:08-CV-2582




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Alfred Toronka appeals a summary judgment in favor of Continental Air-
lines (“Continental”) on charges of employment discrimination based on race, col-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20540

or, national origin, and religion, and on failure reasonably to accommodate his
disability. Because there were no similarly situated employees of a different
race, color, national origin, or religion from Toronka’s who were treated better
than he was, and because Continental could not reasonably accommodate Tor-
onka’s disability, we affirm.


                                             I.
      The district court issued thorough factual findings, which we only sum-
marize. Toronka is black, sixty-three years old, and originally from Sierra Le-
one. He identifies as a Seventh Day Adventist but also expresses a belief in voo-
doo, though he does not practice it. In 1997, Continental hired him as a material
specialist in the Stores department, part of Continental’s Technical Operations
division. The Stores department orders, ships, receives, warehouses, and deliv-
ers aircraft parts to locations around George Bush Intercontinental Airport
(“IAH”). Toronka worked in the technical operations warehouse at IAH. As of
November 2009, the Stores department employed 112 people: 40 blacks, 41
whites, and 31 employees that were either hispanic or Asian-American. Of the
112 employees, 86 were material specialists like Toronka, and 74 had greater
seniority than he did.
      A material specialist is expected to work forty hours during one of three
shifts, with two days off, each week. Every material specialist is expected to
drive, operate a forklift and other machinery, and handle hazardous materials.
There are two material specialist tasks that are not safety-sensitive—inventory
and logbook.1 Inventory is performed only on the first shift. Job openings,
shifts, and days off are awarded by seniority according to the Stores Employ-
ment Policy. Because of his level of seniority, Toronka could not bid on the first



      1
          Inventory may require operating an order picker.

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                                  No. 10-20540

shift and therefore could not do inventory.
      Continental’s employment manual contains disciplinary procedures for re-
solving performance problems and recommends termination of employees who
are involved in severe performance incidents. In the alternative, the manual
suggests the lesser sanction of suspension without pay. The manual also pro-
vides an Employee Assistance Program (“EAP”) for mental health assessment,
referral, follow-up, and monitoring of employees who experience personal or
mental health problems. Continental can issue a mandatory EAP referral based
on unsatisfactory job performance or behavior.
      If Continental requires an employee to participate in the EAP, he must
comply with all required referrals for diagnosis, treatment, and monitoring to
manage or resolve the mental health issue. As required by law, EAP evaluations
are independent and confidential; Continental has no input regarding treatment.
The only facts not kept confidential from Continental are (1) whether the em-
ployee has kept the appointment and complied with the EAP referral and eval-
uation and (2) the final assessment of the employee’s fitness to work. Between
2002 and 2007, twenty-nine people in Technical Operations were issued manda-
tory EAP referrals, including whites, Hispanics, and blacks.
      In February 2003, Toronka was given a written warning following a seri-
ous safety violation for mishandling hazardous materials, resulting in manda-
tory participation in a four-day training program and a warning that a “[f]uture
violation will result in an increase[d] degree of disciplinary action, up to and in-
cluding termination.” In October 2007, Toronka crashed a Continental van into
the avionics department at IAH. Eyewitnesses testified that, while delivering
a part from the warehouse to the avionics department, Toronka rounded the cor-
ner by Gate 45 at high speed, grazed an aircraft tug, and crashed through the
front wall of the avionics department. Five employees were injured, and three,
including Toronka, were taken to the hospital by ambulance. Toronka was is-

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                                 No. 10-20540

sued a speeding ticket by city police. An inspection of the van indicated that it
did not experience mechanical failure, contrary to Toronka’s assertion that the
gas pedal got stuck.
      At a meeting with Continental officials, Toronka offered no explanation
other than the faulty gas pedal and that the accident was inevitable because of
a dream his wife had. Continental concluded Toronka was at fault and that the
accident was serious enough to result in termination, but it gave him an oppor-
tunity to keep his job after a two-week suspension and a mandatory EAP re-
ferral. Continental told Toronka that if he did not accept those terms, he would
be terminated.
      As part of the EAP process, Toronka was evaluated by a psychiatrist, a
psychologist, and a neurologist. George Glass, a psychiatrist, recommended that
Toronka undergo a thorough psychological evaluation to determine whether he
was competent to return to work. That evaluation was performed by Arthur
Tarbox, a clinical psychologist, who reported that Toronka suffered severely im-
paired cognitive functioning, moderately impaired verbal logic and abstract rea-
soning, severely impaired ability to attend to visual stimuli, a below-average
ability to attend to complex verbal stimuli, severely impaired rote memorization
ability, and severely impaired judgment and reasoning on demanding tasks.
Tarbox was unable to rule out dementia and suggested that Toronka consult a
neurologist.
      Toronka then saw Randolph Evans, a neurologist, who recommended that
he not drive and referred him to Glass to determine whether he could return to
work. Glass’s final report indicated that Toronka should not return to work in
his previous capacity, because he was not fit for duty in safety-sensitive areas,
although Glass expressed optimism regarding Toronka’s ability to find work in
some other capacity at Continental. Glass recommended that Toronka take
Alzheimer’s medication. Tarbox recommended an antidepressant.

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                                    No. 10-20540

        In February 2008, Continental advised Toronka he could no longer work
as a material specialist because he was not fit for safety-sensitive tasks. Toron-
ka met with his supervisors on three occasions to discuss other possible positions
within Continental, but he did not express any interest or pursue any of their
suggestions. He did not apply for any of the 584 job openings posted from Jan-
uary 2008 to June 2009.
        In August 2008, David Schwartz, Toronka’s physician, sent a brief letter
to Continental’s human resources department saying he had evaluated Toronka
and believed he was physically and mentally fit to drive. Continental then ar-
ranged yet another independent evaluation with another psychiatrist, Michael
Pipkin, who concluded Toronka should not return to work until a repeat neuro-
psychological evaluation demonstrated improvement in his cognitive impair-
ment.
        Toronka then consulted a psychiatrist of his own, Ifeoma Arene, who said
she saw no reason he could not return to work. So Continental obtained an inde-
pendent evaluation from yet another neurologist, Carlos Porges, who concluded
that Toronka suffered from marked cognitive defects and opined it was not safe
for him to drive and did not think he could return to work.


                                          II.
        We review a summary judgment de novo. Floyd v. Amite Cnty. Sch. Dist.,
581 F.3d 244, 247 (5th Cir. 2009). Summary judgment is appropriate where
there is no genuine issue of material fact and the movant is entitled to judgment
as a matter of law. Id. at 247-48. We review the evidence in the light most fa-
vorable to the nonmovant and resolve all reasonable doubts in the nonmovant’s
favor. Boston Old Colony Ins. Co. v. Tiner Assocs., 288 F.3d 222, 227 (5th Cir.
2002).
        Title VII prohibits an employer from “fail[ing] or refus[ing] to hire or . . .

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                                         No. 10-20540

discharg[ing] any individual, or otherwise . . . discriminat[ing] against any indi-
vidual with respect to his compensation, terms, conditions, or privileges of em-
ployment, because of such individual’s race, color, religion . . . or national origin.”
42 U.S.C. § 2000e-2(a)(1) (2006). Without direct evidence of discrimination, a
plaintiff can rely on circumstantial evidence. Rutherford v. Harris Cnty., 197
F.3d 173, 180 n.4 (5th Cir. 1999). In that case, to prove a prima facie case of dis-
parate treatment based on race, color, national origin, or religion, he must show
(1) membership in a protected class, (2) that he was qualified for the position,
(3) that he was subject to an adverse employment action, and (4) that he was
treated less favorably than was a similarly situated employee outside the pro-
tected class.2
       Whether two employees are similarly situated turns not on whether their
situations are “similar” but on whether they are “nearly identical.” Williams v.


       2
          See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 512-13 (5th Cir.
2001); Kretchmer v. Eveden, Inc., 374 F. App’x 493, 495 (5th Cir. 2010) (applying Okoye stan-
dard to claim of disparate treatment based on religion). In addition, in the case of discrimin-
ation based on a protected status of which the employer would not obviously be aware, as is,
for example, sometimes the case with religion or national origin, the employee must show that
the employer was sufficiently aware of the employee’s status to have been capable of discrimin-
ating based on it. See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 81 (2d Cir. 2005) (“With-
out some evidence that an employer knew that it was replacing an older worker with a young-
er one, intentional discrimination cannot be the required conclusion. . . . [I]t is counter-intui-
tive to infer that the employer discriminated on the basis of a condition of which it was wholly
ignorant.”) (internal quotation marks and citation omitted); Reed v. Great Lakes Cos., 330 F.3d
931, 934 (7th Cir. 2003) (“It is difficult to see how an employer can be charged with discrimina-
tion on the basis of an employee’s religion when he doesn’t know the employee’s religion (or
lack thereof[)] . . . .”); Geraci v. Moody-Tottrup, Int’l, Inc., 82 F.3d 578, 581 (3d Cir. 1996) (“We
cannot presume that an employer most likely practiced unlawful discrimination when it does
not know that the plaintiff even belongs to the protected class. . . . If the pregnancy is not ap-
parent and the employee has not disclosed it to her employer, she must allege knowledge and
present, as part of her prima facie case, evidence from which a rational jury could infer that
the employer knew that she was pregnant.”); cf. Daniels v. City of Arlington, 246 F.3d 500, 506
(5th Cir. 2001) (holding employee must show employer was informed of employee’s religious
belief to establish a prima facie case in a title VII reasonable-accommodations claim). Because
Toronka has not satisfied his prima facie case (for the reason that no other employees were
similarly situated to him), we need not address Continental’s awareness (or lack thereof) of
Toronka’s religion or national origin.

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                                       No. 10-20540

Trader Publ’g Co., 218 F.3d 481, 484 (5th Cir. 2000). That employees’ situations
must be nearly identical means, inter alia, that the misconduct they engaged in
must be nearly identical.3 Assuming without deciding that Toronka satisfies the
first three prongs, he must show that Continental treated another employee who
was not of the same race, color, national origin, or religion more favorably than
it treated Toronka in response to nearly identical misconduct.
       Toronka names Elett Mercado, Chris Zirzle, Carlos Salazar, Angel Men-
dez, and Steve Alexa as similarly-situated employees who were treated more fa-
vorably. But there is no genuine issue of material fact as to whether any of them
was responsible for an accident as serious as Toronka’s: None of them caused
an accident that sent someone to the hospital or caused similar property dam-
age. Nor was any of them issued a police citation.
       Mercado had driven her car into an unbarricaded ditch and injured no one
but herself. Zirzle’s accident involved no injuries to anyone, including himself,
and no property damage to anything other than his vehicle. It is not evident
whether Salazar and Mendez even got into accidents; Continental has no record
of accidents involving either of them. But even if they did, the evidence shows
only that they damaged the front of their vehicles, and there is no indication that
they injured anyone. Finally, Alexa hit a wall with his vehicle, causing damage
to his vehicle and the wall, but again there was no personal injury. All those ac-
cidents were a far cry from Toronka’s crashing through a wall at high speed, in-
juring five people and sending three, including himself, to the hospital.
       Indeed, Toronka’s supervisor testified that Toronka’s accident was the
most serious in twenty years, and Toronka testified that he was not aware of any


       3
         See, e.g., Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 221 (5th Cir. 2001) (“We have
held that in order for a plaintiff to show disparate treatment, she must demonstrate that the
misconduct for which she was discharged was nearly identical to that engaged in by an em-
ployee not within her protected class whom the company retained.”) (emphasis added) (brack-
ets, internal quotation marks, and citations omitted)).

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                                       No. 10-20540

other coworkers’ being involved in an accident similar to the one he caused.
Therefore, even viewing the other accidents in the light most favorable to him,
none is nearly identical in severity to what he did. What the evidence shows is
that Continental’s failure to reinstate Toronka to his previous position after his
accident was because of the seriousness of the accident, not his race, color, na-
tional origin, or religion.


                                             III.
       Toronka also claims that he has been discriminated on the basis of disabil-
ity under the ADA. 42 U.S.C. § 12112(a) (2006). To prevail, he must prove that
(1) he has a disability, (2) he is qualified, and (3) his employer made an adverse
employment decision solely because of his disability. Turco v. Hoechst Celanese
Corp., 101 F.3d 1090, 1092 (5th Cir. 1996) (per curiam). To be a “qualified indi-
vidual,” the employee must be “an individual who, with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” 42 U.S.C. § 12111(8). It would not be a
reasonable accommodation to require the employer to eliminate essential job
functions, modify job duties, reassign existing employees, or hire new employees,
Burch v. City of Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999), or, absent spe-
cial circumstances, to undermine an established seniority system, US Airways,
Inc. v. Barnett, 535 U.S. 391, 405-06 (2002). An employer may be required to
reassign a disabled employee to a vacant position, but only if that is reasonable.4
       In his brief on appeal, Toronka concedes that he has an impairment that
substantially limits his ability to drive and do other safety-sensitive work. As-
suming arguendo that he is disabled, the next question is whether, viewing the


       4
        See 42 U.S.C. § 12111(9) (“The term ‘reasonable accommodation' may include . . . re-
assignment to a vacant position” (emphasis added)); Daugherty v. City of El Paso, 56 F.3d 695,
698-99 (5th Cir. 1995).

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                                        No. 10-20540

evidence in the light most favorable to him, he could perform the essential func-
tions of a material specialist with reasonable accommodations or could reasona-
bly be reassigned to a different, vacant job. The answer is no. The only way Tor-
onka could avoid both driving and safety-sensitive duties as a material specialist
is if he were permanently assigned to logbook and/or inventory duties to the ex-
clusion of all the other tasks a material specialist does—Z-runner, outbound, in-
bound, puller, AOG, window, and utility.5 But neither a permanent logbook posi-
tion nor a permanent inventory position would be a reasonable accommodation.
       Continental has no permanent logbook position. Our precedent is plain
that an employer is not required to create a new job type to accommodate a disa-
bled employee. Burch, 174 F.3d at 621. Toronka asserts that the absence of a
permanent logbook position is immaterial, because some employees, on occasion,
have been temporarily assigned to do exclusively logbook work to accommodate
an injury. But that does not logically follow. That Continental, to avoid the
costs of replacing an employee, occasionally has allowed employees to do nothing
but logbook for a few months until they recovered from an injury does not mean
that Continental should be forced to create a permanent logbook position, which
SSas distinguished from a temporary oneSSwould mean that Continental would
have to suffer permanent operating inefficiency. That is not reasonable: Be-
cause forcing Continental to create a permanent logbook position would elimin-
ate essential duties of a material specialist and create a new job type, it is not
a reasonable accommodation.

       5
          The record describes the tasks as follows: (i) Z-runner (short for zoned runner), in-
volves transporting parts from the warehouse to mechanics in different airport zones; (ii) out-
bound and inbound involve driving from the warehouse to aircraft and vice-versa to deliver
parts; (iii) puller involves pulling parts with the forklift and order picker; (iv) AOG involves
urgent delivery of parts to a grounded aircraft; (v) window involves identifying, pulling, and
delivering parts on request; and (vi) utility involves assisting in all of the above functions. By
contrast, logbook involves entering orders and weighing packages, and inventory involves tak-
ing stock of warehouse inventory. The evidence is not pellucid whether inventory also involves
pulling parts.

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                                  No. 10-20540

      With respect to inventory duties, it is true that Continental has permanent
inventory positions for some employees, but they are available only for the first
shift, and Toronka is not senior enough to get those jobs. Giving him one of
them anyway would thus violate a bona fide seniority system, so, without any-
thing more than a conclusional assertion on Toronka’s part that his circumstanc-
es are special, Continental is not required to upend its seniority system just for
his sake. See US Airways, 535 U.S. at 405-06.
      Toronka alternatively contends that a lone inventory position can be creat-
ed just for him in the second shift. But Continental has only one inventory su-
pervisor, who works on the first shift. Toronka provides no evidence other than
his ipse dixit to counter Continental’s evidence (and common sense) that having
a lone worker do inventory during the second shift would require either hiring
an additional inventory supervisor to supervise the second shift or transferring
more responsibility to existing second-shift supervisors. Therefore, there are no
reasonable accommodations that would allow Toronka to take on a permanent-
inventory position.
      Toronka’s last option is thus reassignment to another position at Contin-
ental. He argues that Continental violated the ADA because it did not engage
in an “interactive process” with him in order reasonably to accommodate him in
another position at Continental. An employer violates the ADA “when [its] un-
willingness to engage in a good faith interactive process leads to a failure to rea-
sonably accommodate an employee.” Loulseged v. Akzo Nobel, Inc., 178 F.3d 731,
736 (5th Cir. 1999). An employer is not, however, liable if the breakdown in the
interactive process is traceable to the employee. Id. Toronka maintains that
Continental referred him only to its jobs bank, but Continental has provided un-
controverted evidence that Toronka’s supervisors met with him multiple times
to discuss available positions for which Toronka met the minimum requirements
based on his resume. Toronka did not apply for those jobs.

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                                        No. 10-20540

       Toronka responds that he was not qualified for any of the available jobs
and that Continental was required to provide a job for which he was qualified,
but Toronka misunderstands the responsibility of an employer to provide a rea-
sonable accommodation for a disabled employee. It is not an employer’s respon-
sibility to “fashion” a new job, as Toronka asserts. For reassignment to be a rea-
sonable accommodation, a position “must first exist and be vacant.”6 Therefore,
if Toronka was not qualified for any of the existing, vacant positions at Continen-
tal, then Continental did all it could, and Toronka has not shown that he can be
reasonably accommodated by reassignment.7
       The summary judgment is AFFIRMED.




       6
         Burch, 174 F.3d at 620 (quoting Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810
(5th Cir. 1997)).
       7
         See Foreman, 117 F.3d at 810 (“[An employer is] not . . . obligated to accommodate [a
disabled employee] by reassigning him to a new position. ‘[W]e do not read the ADA as requir-
ing affirmative action in favor of individuals with disabilities, in the sense of requiring disa-
bled persons be given priority in hiring or reassignment over those who are not disabled. It
prohibits employment discrimination against qualified individuals with disabilities, no more
and no less.” (quoting Daugherty, 56 F.3d at 700)).

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