              IN THE COURT OF APPEALS OF TENNESSEE
                          AT NASHVILLE

                             FILED
                                October 28, 1999

                             Cecil Crowson, Jr.
                            Appellate Court Clerk


ROGER D. ANDERSON,                     )
                                       )
      Plaintiff/Appellant   )          Appeal No.
                                       )       01-A-01-9807-CH-00396
vs.                                    )
                                       )       Davidson Chancery
AJAX TURNER CO.                        )       No. 97-290-I
                                       )
      Defendant/Appellee               )


                     COURT OF APPEALS OF TENNESSEE


               APPEAL FROM THE CHANCERY COURT
                       FOR DAVIDSON COUNTY


            THE HONORABLE ELLEN HOBBS LYLE PRESIDING


WILLIAM L. MOORE, JR.
ROGERS & MOORE
119 PUBLIC SQUARE
GALLATIN, TENNESSEE 37066

ATTORNEY FOR PETITIONER/APPELLANT

WAVERLY D. CRENSHAW, JR.
MARK W. PETERS
WALLER LANSDEN DORTCH & DAVIS
511 UNION STREET, SUITE 2100
NASHVILLE, TENNESSEE 37219




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ATTORNEYS FOR RESPONDENT/APPELLEE

                         AFFIRMED AND REMANDED


                                            PATRICIA J. COTTRELL, JUDGE


CONCUR:
CAIN, J.
CRAWFORD, J.



                                   OPINION
      This case involves the viability of claims asserted under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Tennessee Handicap
Discrimination Act ("THDA"), Tenn. Code Ann. § 8-50-103. For the reasons set
out herein, we affirm the trial court’s decision to grant summary judgment to the
Defendant, Ajax Turner Company.
      Roger Anderson began working for Ajax Turner as a route salesman in 1990.
His duties entailed delivering and selling beer, building beer displays, driving a
delivery truck and handling finances. In the course of his duties, he was regularly
required to lift cases of beer. The cases of beer he delivered each weighed over
twenty pounds.
      In June 1995, a case of beer fell on Mr. Anderson while he was unloading a
truck, and he herniated a disk in his back. He remained on medical leave from
September 1995 to June 1996. During his leave, Mr. Anderson underwent a
laminectomy and obtained workers compensation benefits. In May 1996, he
attempted to report back to work with restrictions on his activities, but his employer
sent him home. He was terminated in June 1996.
      He commenced the underlying action after his discharge, alleging violations of
both the state and federal disability in employment statutes. Ajax Turner moved for
summary judgment, arguing that Mr. Anderson’s ADA claim should be dismissed
because he failed to exhaust his administrative remedies as required by that federal


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statute. It also maintained that Mr. Anderson failed to establish a prima facie case
under the THDA because his alleged handicap did not substantially limit a major life
activity and his injury prevented him from performing the essential functions of his
job without accommodation.
       After reviewing Ajax Turner's motion, the trial court dismissed the ADA claim
for lack of subject matter jurisdiction, finding Mr. Anderson had failed to exhaust
his administrative remedies. It also dismissed the State law claim based upon Mr.
Anderson's failure to establish a prima facie case of handicap discrimination
because he was not substantially limited in any major life activity but could not
perform the essential functions of the job without accommodation. After the
dismissal of his claims, Mr. Anderson commenced this appeal.
                                          I.
       Our standard of review in considering the propriety of summary judgment is

well-settled:

       Since our inquiry involves purely a question of law, no presumption of
       correctness attaches to the trial court's judgment, and our task is
       confined to reviewing the record to determine whether the requirements
       of Tenn. R. Civ. P. 56 have been met. Cowden v. Sovran
       Bank/Central South, 816 S.W.2d 741, 744 (Tenn. 1991). Tenn. R.
       Civ. P. 56.03 provides that summary judgment is only appropriate
       where: (1) there is no genuine issue with regard to the material facts
       relevant to the claim or defense contained in the motion, Byrd v. Hall,
       847 S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
       to a judgment as matter of law on the undisputed facts. Anderson v.
       Standard Register Co., 857 S.W.2d 555, 559 (Tenn. 1993). The
       moving party has the burden of proving that its motion satisfies these
       requirements. Downen v. Allstate Ins. Co., 811 S.W.2d 523, 524
       (Tenn. 1991).

       The standards governing the assessment of evidence in the summary
       judgment context are also well established. Courts must view the
       evidence in the light most favorable to the nonmoving party and must
       also draw all reasonable inferences in the nonmoving party's favor.
       Byrd, 847 S.W.2d at 210-11. Courts should grant a summary judgment
       only when both the facts and the conclusions to be drawn from the
       facts permit a reasonable person to reach only one conclusion. Id.

Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995). Applying these standards, we



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review the decision below.

                                           II.

       Mr. Anderson contends that the trial court erred in dismissing his ADA

claim. He maintains that the Tennessee Human Rights Act (“THRA”), Tenn. Code

Ann. § 4-21-101, et seq., confers subject matter jurisdiction on Tennessee courts to

hear ADA claims because its stated purpose is to provide for the execution within

this state of the policies embodied of the federal civil rights statutes. See Tenn.

Code Ann. § 4-21-101(a) (1991). We disagree.



      The ADA incorporates by reference the powers, remedies, and procedures of

Title VII, which requires employees claiming discrimination to file a charge with the

Equal Employment Opportunity Commission or the comparable state administrative

agency. See 42 U.S.C. §§ 2000e-5(e)(1) and (f)(1) and 12117 (a); McSherry v.

Transworld Airlines, Inc, 81 F.3d 739, 740 n. 3 (8 th Cir. 1996). Failure to file a

timely administrative charge is generally fatal to ADA claims asserted in federal

court. See Love v. Pullman Co., 404 U.S. 522, 523-524, 92 S.Ct. 616, 618, 30

L.Ed.2d 679, 683 (1972); Cheek v. Western and Southern Life Ins. Co., 31 F.3d

497, 500 (7 th Cir. 1994). Filing the charge is not a mere procedural requirement.

The purpose is to give the administrative agency the opportunity to investigate the

charge and bring to bear its voluntary compliance and conciliation functions. 42

U.S.C. § 2000e-5(b) (1994).

      Mr. Anderson argues that this substantive statutory requirement of exhaustion

of administrative remedies does not apply when ADA claims are asserted in



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Tennessee state courts. The incongruous result of this theory would be that

plaintiffs suing in state court would not have to exhaust their administrative remedies

while those initiating actions in federal court would. We are unpersuaded that

Congress, having elected to permit concurrent jurisdiction, intended to condone

such unequal treatment between forums. See Donnelly, 494 U.S. at 823, 110 S.Ct.

at 568, 108 L.Ed.2d at 839; Joo v. Capitol Switch, Inc., 650 A.2d 526, 532 (Conn.

1994). Mr. Anderson has provided no case support for his proposition that we

need only selectively apply the provisions of the ADA, and we have found none.

      Nor does the THRA exempt Mr. Anderson from the ADA’s exhaustion

requirement. When the THRA was enacted in 1978, the ADA did not exist. See

Eason v. Memphis Light, Gas & Water Div., 866 S.W.2d 952, 954 (Tenn. App.

1993). The ADA became effective in 1992. The General Assembly could hardly

have intended to modify the requirements of the ADA by enacting the THRA when

the ADA did not exist at the time. In any event, our General Assembly is not

empowered to amend or repeal federal law. U.S. Const. art. VI., cl. 2.

      The record unequivocally shows, by Mr. Anderson’s own testimony, that he

filed no administrative claim. Therefore, the trial court properly granted summary

judgment on the ADA claim.

                                          III.

      Mr. Anderson argues that the THRA requires Tennessee employers to make

reasonable accommodations to otherwise qualified disabled employees. We

disagree.

      The THDA states in pertinent part:



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      (a) There shall be no discrimination in the hiring, firing and other terms
      and conditions of employment of the state of Tennessee or any
      department, agency, institution or political subdivision of the state, or
      of any private employer, against any applicant for employment based
      solely upon any physical, mental or visual handicap of the applicant,
      unless such handicap to some degree prevents the applicant from
      performing the duties required by the employment sought or
      impairs the performance of the work involved.

Tenn. Code Ann. § 8-50-103 (1993).

      To establish a prima facie case of handicap discrimination under this section,

claimants must show: 1) that they have a handicap, and 2) that they can actually do

the work or are "otherwise qualified" to do the work notwithstanding their handicap.

See Abraham v. Cumberland-Swan, Inc., No. 01A01-9201-CH-00032, 1992 WL

207775 at * 7 (Tenn. App. Aug. 28, 1992). Once the plaintiff has established a

prima facie case, the burden then shifts to the defendant employer to show that its

job requirements and standards are bona fide occupational requirements. See Cecil

v. Gibson, 820 S.W.2d 361, 366 (Tenn. App. 1991). It is not necessary for the

employer to go forward unless the plaintiff establishes a prima facie case. See

Jasany v. United States Postal Service, 755 F.2d 1244, 1249-50 (6th Cir. 1985).

      Here, Mr. Anderson failed to establish a prima facie case of employment

discrimination. The record shows that he could not actually do the work. It is

undisputed that Mr. Anderson’s former job required the ability to lift twenty pound

cases of beer. Mr. Anderson admitted that, without assistance, he could no longer

pick up the beer, unload the truck, and push dollies with big loads of beer on them.

He testified that he could not perform his former job alone. He did not argue that he

was “otherwise qualified.” The final clause in Tenn. Code Ann. § 8-50-103(a)

permits employers to discharge disabled employees if their handicap “to some


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degree prevents” or “impairs” job performance.

       Mr. Anderson argues that his employer must make accommodation for his

inability to perform the functions required by his job by providing him with an

assistant to perform the lifting duties. Unlike its federal counterpart, Tenn. Code

Ann. § 8-50-103(a) is silent on the subject of an employer’s duty to reasonably

accommodate a disabled employee. In the face of this silence, our courts have

declined to impose such a duty. Instead, they agree that “the portion of the THRA

that prohibits discrimination on the basis or disability does not require employers to

provide disabled workers with reasonable accommodations.” Pruett v. Wal-Mart

Stores, Inc., No. 02A01-9610-CH-00266, 1997 WL 729260 at * 13 (Tenn. App.

Nov. 25, 1998); see Tuck v. HCA Health Services of Tennessee, Inc., 7 F.3d 465,

474 (6th Cir. 1993); Abraham v. Cumberland-Swan, Inc., No. 01

A01-9201-CH-00032, 1992 WL 207775 (Tenn. App. Aug. 28, 1992); Thus, Ajax

had no legal duty to accommodate Mr. Anderson’s condition under Tennessee law,

and Mr. Anderson has no claim for failure to accommodate.

                                               IV.

       Mr. Anderson argues that summary judgment was inappropriate because a

question of material fact, whether he is disabled under Tenn. Code Ann. § 4-21-102

(9), remains to be tried. The record is clear that he cannot establish the second

element of his prima facie case, that he could actually do the work or was

"otherwise qualified" to do the work notwithstanding his handicap. In light of this

deficiency, the existence of disputed questions of fact on the first element, whether

he actually has a disability, is immaterial.



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      Accordingly, the judgment of the trial court is affirmed and this case is
remanded for any further proceedings which may be necessary. Costs of this
appeal shall be taxed to Appellant, for which execution may issue if necessary.

                                          _____________________________
                                          PATRICIA J. COTTRELL, JUDGE

CONCUR:



________________________________________
WILLIAM B. CAIN, JUDGE



________________________________________
W. FRANK CRAWFORD, JUDGE




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