     Case: 13-10788      Document: 00512638864         Page: 1    Date Filed: 05/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-10788
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                            May 22, 2014
PAMELA L. CROSSLEY,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellant
v.

CSC APPLIED TECHNOLOGIES, L.L.C.,

                                                 Defendant-Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC No. 6:12-CV-2


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Pamela Crossley (“Crossley”) filed suit against
Defendant-Appellee CSC Applied Technologies, L.L.C. (“CSC”) alleging that
CSC discriminated against her by failing to accommodate her disability, in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12112(b)(5)(A). The district court granted summary judgment in favor of CSC.
Crossley timely appealed.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10788
      Crossley is a United States Army veteran who worked for CSC as an
aircraft mechanic in San Angelo, Texas. CSC has a helicopter servicing
contract with the U.S. Army that requires the company to provide repairs at
varying times and locations. As such, the mechanics have to deploy to other
locations whenever needed. The job description for aircraft mechanic explicitly
lists as qualifications that the employee must be willing to work any shift or
schedule as required to support the workload and must be willing to deploy to
support off-station exercises or other duties as assigned.
      As a result of an incident that occurred during her military service,
Crossley suffered from and received weekly treatment for posttraumatic stress
disorder (“PTSD”). In February 2011, CSC informed its employees that there
would be a reduction in aircraft at the San Angelo site and that it would have
to reassign employees to other locations. Crossley informed her supervisors
that she was unable to travel due to her medical appointments. She submitted
a letter from her physician explaining that she could not travel and
acknowledged that she understood she could be laid off if she was not able to
accept a location transfer.
      On March 4, 2011, CSC terminated Crossley, informing her that she was
eligible for rehire and may apply for positions for which she was qualified that
became available in the future. However, Crossley did not apply for the
positions that subsequently became available at the San Angelo location. On
March 15, 2011, Crossley filed an application with the Department of Veterans
Affairs for total disability benefits, claiming that her disability prevented her
“from securing or following any substantially gainful occupation.” Crossley
subsequently filed the instant suit.
      We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. Milton v. Texas Dep’t of
Criminal Justice, 707 F.3d 570, 572 (5th Cir. 2013). “The court shall grant
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                                  No. 13-10788
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Evidence is construed in the light most favorable to the
non-moving party . . . draw[ing] all reasonable inferences in that party’s favor.
Conclusory allegations, unsubstantiated assertions, or only a scintilla of
evidence are insufficient to create a genuine issue of material fact.” Milton, 707
F.3d at 572 (internal quotation marks and citations omitted). We may affirm
summary judgment on any ground supported by the record. Feist v. Lousiana,
Dep’t of Justice, Office of Att’y Gen., 730 F.3d 450, 452 (5th Cir. 2013).
      The ADA provides: “No covered entity shall discriminate against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a).
Discrimination includes “not making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a
disability . . . unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the
business of such covered entity.” Id. at (b)(5)(A). Therefore, to prevail in her
failure-to-accommodate claim, Crossley must prove that: “(1) [she] is a
qualified individual with a disability; (2) the disability and its consequential
limitations were known by [CSC]; and (3) [CSC] failed to make reasonable
accommodations for such known limitations.” Feist, 730 F.3d at 452 (internal
quotation marks omitted).
      A qualified individual is one who “with or without reasonable
accommodation, can perform the essential functions of the employment
position that such individual holds.” 42 U.S.C. § 12111(8). To avoid summary
judgment on the question of whether she is a qualified individual, Crossley
must show: (1) “that [she] could perform the essential functions of the job in
spite of [her] disability” or (2) “that a reasonable accommodation of [her]


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                                     No. 13-10788
disability would have enabled [her] to perform the essential functions of the
job.” Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996). 1
      CSC’s contract with the government required employees to make repairs
at varying times and locations. Thus, the description of Crossley’s position
explicitly states: “Qualifications: . . . Must be willing to work any shift and/or
flexible schedules as required to support the workload and the mission. Must
be willing to deploy to support off station exercises and perform other
supportive duties as assigned.” Crossley testified that when CSC took over the
contract, she understood that she would have to work in different locations.
Additionally, while still employed Crossley wrote letters stating that she could
not travel and that she understood that she could be laid off due to her inability
to accept work at another location. Indeed, Crossley concedes on appeal that
travel was an essential function of her job that she could not perform when she
states, “There is no dispute that Crossley successfully performed all essential
tasks of her job throughout her employment with CSC, except for the travel
requirement.” Thus, Crossley has not shown that she is a qualified individual
under the ADA. See Gober v. Frankel Family Trust, 537 F. App’x 518, 521-22
(5th Cir. 2013) (unpublished) (affirming summary judgment for employer
where evidence showed that plaintiff could not report to work after hours,




      1EEOC regulations provide:
             (3) Evidence of whether a particular function is essential includes, but is not
             limited to:
             (i) The employer's judgment as to which functions are essential;
             (ii) Written job descriptions prepared before advertising or interviewing
             applicants for the job;
             (iii) The amount of time spent on the job performing the function;
             (iv) The consequences of not requiring the incumbent to perform the function;
             (v) The terms of a collective bargaining agreement;
             (vi) The work experience of past incumbents in the job; and/or
             (vii) The current work experience of incumbents in similar jobs.
      29 C.F.R. §1630.2(n)(3)(i)-(vii).
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                                 No. 13-10788
which was an essential function of the position even if it happened only
infrequently).
      Moreover, after filing the instant suit, Crossley filed an application with
the Department of Veterans Affairs requesting total disability benefits due to
her inability to secure or perform any occupation. In Cleveland v. Policy Mgmt.
Corp., 526 U.S. 795, 797-98 (1995), the Supreme Court held that although a
plaintiff’s pursuit and receipt of Social Security Disability Insurance (“SSDI”)
benefits does not automatically estop her from pursuing an ADA claim, “[t]o
survive a defendant’s motion for summary judgment, she must explain why
that SSDI contention is consistent with her ADA claim that she could perform
the essential functions of her previous job, at least with reasonable
accommodation.” This court has explained that “while an employee's
boilerplate representation of total disability in a benefits application may be a
legal conclusion that can, through an adequate explanation, be reconciled with
a subsequent ADA suit, an employee's specific factual statements that she was
unable to perform her essential job duties at the time of the adverse
employment action entitle the employer to summary judgment, at least absent
a particularized showing that reasonable accommodations were possible.” Bell
v. Hercules Liftboat Co., L.L.C., 524 F. App’x 64, 68 (5th Cir. 2013)
(unpublished) (quoting Reed v. Petroleum Helicopters, Inc., 218 F.3d 477, 479-
80 (5th Cir. 2000)) (internal quotation marks omitted).
      In Reed, 218 F.3d at 478, the plaintiff worked as an offshore helicopter
pilot and injured her back on the job. She filed several applications for SSDI
benefits, in which she claimed that she was totally disabled, unable to work,
and unable to sit, stand, or walk for long periods of time. Id. at 479. After her
termination, she sued her employer under the ADA, and this court affirmed
summary judgment for the employer, reasoning that her specific factual
statements were “inconsistent with her claim that she could fly a helicopter,
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                                 No. 13-10788
an essential function of her job” and that she “did not dispute that the only
reasonable accommodation for an inability to fly is to be placed on temporary
leave.” Id. at 480. This court further reasoned that she gave no explanation for
the inconsistency or her physician’s assessment that she was not safe to fly.
Finally, this court found it irrelevant that some of the factual statements
occurred after her termination because she “provided no evidence that she
could perform an essential function of her job, namely flying, with any
reasonable accommodation.” Id. at 480-81.
      Similarly here, Crossley provides no evidence that she could perform an
essential function of her job—travel. Indeed, as noted above, Crossley concedes
that travel was an essential function and that she could not perform it.
Furthermore, in her statement in support of her claim for total disability
benefits, Crossley explained that CSC terminated her because of her inability
to travel. The benefits application stated that in order to support her claim,
Crossley would have to show that her disability was sufficient, without regard
to other factors, to prevent her from obtaining or keeping any substantially
gainful employment. Crossley’s physician stated in her application that she
was “unemployable” due to her disability.
      Moreover, under Cleveland, 526 U.S. at 807, even when a benefits
application contains only on a legal conclusion, “the court should require an
explanation of any apparent inconsistency.” The only argument Crossley offers
for the inconsistency is her “good faith believe [sic] that she could perform the
essential functions of her job with CSC.” However, to survive summary
judgment, Crossley’s explanation must be sufficient for a reasonable juror to
conclude that, assuming Crossley’s good-faith belief in her statement on her
benefits application, she nevertheless could perform the essential functions of
the job with or without reasonable accommodation. See Cleveland, 526 U.S. at
807. Crossley concedes that she could not perform an essential function of her
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job and asserts that the only reasonable accommodation for her inability to
travel was to be placed on indefinite leave “to see if additional jobs opened up
in San Angelo which could have accommodated her need for treatment at the
VA.” See Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996)
(rejecting as meritless employee’s contention that employer was required to
afford him indefinite leave, explaining that “[n]othing in the text of the
reasonable accommodation provision requires an employer to wait an
indefinite period for an accommodation to achieve its intended effect”); see also
Amsel v. Texas Water Dev. Bd., 464 F. App’x 395, 400 (5th Cir. 2012)
(“Indefinite leave is not a reasonable accommodation.”). Additionally, Crossley
does not allege that indefinite leave would have addressed her inability to
travel. See Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 709 (5th Cir.
1997) (“[T]he law does not require an employer to transfer from the disabled
employee any of the essential functions of his job.”). Finally, Crossley did not
even apply for the jobs that subsequently became available in San Angelo,
despite the fact that she was aware of her eligibility for rehire. Accordingly,
Crossley has not shown that she is a qualified individual under the ADA. 2
      We AFFIRM the district court’s judgment.




      2   Crossley contends, in one sentence, that the district court erred in summarily
overruling Crossley’s objections to CSC’s summary-judgment evidence because the
“affidavits” that CSC submitted did not identify the details of the affiants’ personal
knowledge and contained bare factual allegations and legal conclusions. Crossley does not
explain how the one declaration that CSC submitted, which was based on the declarant’s
direct knowledge gained from his position at CSC and contained more than bare allegations,
was objectionable. This argument is waived, see Carl E. Woodward, L.L.C. v. Acceptance
Indem. Ins. Co., 743 F.3d 91, 96 (5th Cir. 2014), and, in any event, is meritless.
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