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

                                                                            FILED
                                                                           June 25, 2008

                                       No. 07-10766                   Charles R. Fulbruge III
                                                                              Clerk

SHERYLIN WILLI; SANGEETA PRABHAKAR; MERRI WILSON

                                                  Plaintiffs–Appellants
v.

AMERICAN AIRLINES INC; CELESTE SIMON

                                                  Defendants–Appellees



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:05-CV-453


Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
       On January 5, 2005, Appellants Sherylin Willi, Sangeeta Prabhakar, and
Merri Wilson filed suit against Appellee American Airlines, Inc. (“American”),
asserting that American’s refusal to grant them chronic catastrophic leave
(“CCL”)1 violated the Family and Medical Leave Act (“FMLA”), the Americans
with Disabilities Act (“ADA”), and the Texas Commission on Human Rights Act

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
        CCL allowed an employee with a chronic medical condition, who was not eligible for
leave under the Family and Medical Leave Act, to be temporarily exempt from American’s
attendance policy for each substantiated absence related to the chronic condition.
                                         No. 07-10766

(“TCHRA”).2 Wilson also asserted claims against Appellee Celeste Simon and
American under Texas law for defamation and intentional infliction of emotional
distress arising from the publication of a security alert regarding Wilson.
American and Simon moved for summary judgment as to all of Appellants’
claims, which the district court granted. Appellants now appeal.3
      Having reviewed the briefs, the record, and the parties’ oral arguments
under de novo review, we AFFIRM the judgment of the district court for the
following reasons:
1. We agree with the district court that regular attendance is an essential
function of Appellants’ positions as reservation agents in the specialized
International Resolutions Desk. See Hypes v. First Commerce Corp., 134 F.3d
721, 727 (5th Cir. 1998) (“[R]egular attendance is an essential function of most
jobs.”); Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th Cir. 1996) (noting that
regular job attendance was an obvious essential function). Because CCL would
permit Appellants to engage in unpredictable, unapproved, and unscheduled
absences, Appellants would still be unable to perform the essential job function
of regular attendance even if American were to grant CCL to Appellants as an
accommodation. Accordingly, Appellants are not protected by the ADA or
TCHRA and cannot prevail on these claims. See 42 U.S.C. § 12111(8) (defining
“qualified individual with a disability” as “an individual with a disability who,
with or without reasonable accommodation, can perform the essential functions
of the employment position that such individual holds or desires”).




      2
        The ADA and TCHRA both prohibit employment discrimination on the basis of an
individual’s disability. See 42 U.S.C. § 12101-12117; TEX. LAB. CODE ANN. § 21.051. Because
the ADA and TCHRA are very similar, Texas courts and this Court focus on federal precedent
regarding the ADA in interpreting the TCHRA. Rodriguez v. ConAgra Grocery Prods. Co., 436
F.3d 468, 473-74 (5th Cir. 2006).
      3
          Appellants do not contest the district court’s dismissal of their FMLA claim on appeal.

                                                2
                                  No. 07-10766

2. The district court properly dismissed Wilson’s defamation claim against
Simon and American because Wilson failed to produce any evidence that Simon
or American published or directed the publication of the security alert. See
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998) (stating that to
maintain a cause of action for defamation, a plaintiff must prove that the
defendant published a defamatory statement).
3. Wilson’s intentional infliction of emotional distress claim fails because it is
based on the exact same allegations as her defamation claim, and “[w]here the
gravamen of a plaintiff’s complaint is really another tort, intentional infliction
of emotional distress should not be available.” Hoffmann-La Roche Inc. v.
Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).
      AFFIRMED.




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