                 UNITED STATES COURT OF     APPEALS

                      FOR THE FIFTH CIRCUIT


                             NO. 96-31133


            DAVID L. HYPES, Individually and on behalf
         of his minor child Sarah Hypes, and MEGAN HYPES

                                               Plaintiffs-Appellants



                                VERSUS

                    FIRST COMMERCE CORPORATION

                                                  Defendant-Appellee


          Appeals from the United States District Court
              for the Eastern District of Louisiana

                        February 12, 1998

Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

                                  I.

                        PROCEDURAL HISTORY

     Plaintiff-Appellant David Hypes (hereinafter “Hypes”) worked

for First Commerce Corporation (hereinafter “FCC”) from February of

1993 to December 31, 1994. He was fired ostensibly for excessive

absenteeism and tardiness.    During the period of his employment,

Hypes developed chronic obstructive lung disease, which he argues

precipitated his absences and tardiness. On August 23, 1995, Hypes

filed suit against FCC alleging violations of the Americans with

Disabilities Act (hereinafter “ADA”), 42 U.S.C. § 12101, et seq.,


                                  1
the Louisiana Civil Rights Act for Handicapped Persons (hereinafter

“LCRHP”),     La.   Rev.   Stat.    Ann.    §   46:2251,     et   seq.,    the   Age

Discrimination in Employment Act (hereinafter “ADEA”), 29 U.S.C. §

623, et seq., the Louisiana Age Discrimination in Employment Act

(hereinafter “LADEA”), La. Rev. Stat. Ann. § 23:971, et seq., and

the Family Medical Leave Act (hereinafter “FMLA”), 29 U.S.C. 2601,

et seq. Hypes also interposed claims for intentional infliction of

mental distress and for loss of consortium. On January 19, 1996,

the case was assigned a trial date of September 9, 1996.

     FCC filed a motion for summary judgment on July 30, 1996.                    On

August 2, 1996, with the trial date just over a month away, Hypes

moved   for   leave   to    amend    the    complaint    to    allege     that   FCC

terminated Hypes to avoid paying long-term disability benefits in

violation of Section 510 of the Employee Retirement Income Security

Act (hereinafter “ERISA”). 29 U.S.C. § 1140.                 On August 22, 1996,

the Magistrate denied Hypes’ motion to amend.                 The district court

granted FCC’s motion for summary judgment and judgment was entered

thereon on August 30, 1996.

     On   September    5,    1996,    Hypes     filed   an    objection    to    the

Magistrate’s denial of leave to file a first amended complaint.                   On

September 16, 1996, Hypes filed a motion to reconsider the judgment

dismissing his claims.         On October 1, 1996, the district court

denied Hypes’ objection to the Magistate’s denial of Hypes’ motion

to amend.     On October 10, 1996, the district court denied Hypes’

motion to reconsider.       On October 28, 1996, Hypes filed a notice of

appeal asserting the following alleged errors:


                                        2
1.        The district court erred by granting summary judgment;

2.        The district court erred by upholding the magistrate judge’s
          denial of plaintiff-appellant’s motion to amend.

          Since the evidence viewed in the light most favorable to Hypes

will only support the conclusion that he was fired due to excessive

absence not linked to his disability, and since the proposed

accomodations, as a matter of law, are insufficient to allow Hypes

to perform the essential functions of the job, we affirm the

district court summary judgment.            Furthermore, we find no abuse of

discretion in the district court’s denial of Hypes’ eleventh-hour

motion to amend. Therefore, we affirm.

                                       II.

                                      FACTS

          Hypes was hired by FCC in February of 1993, as a loan review

analyst assigned to a Consumer Assessment Team in the Independent

Review Services Division.          He worked in that position until April

27, 1994, when he was reassigned to a Commercial Portfolio Team.

This reassignment was initiated by Hypes’ immediate team leader,

Bill Burnell, and the Independent Review Services Division leader,

Kim       Lee,   ostensibly   in   response   to    a   pattern   of    improperly

documented absenteeism and tardiness, which naturally led to Hypes’

inability to complete reports and projects on time.1                    After his

April,       1994,   reassignment,    Hypes’       absenteeism    and    tardiness


      1
     Lee and Burnell knew that Hypes’ absences were mostly due to illness
and were concerned that Hypes had not taken the time to provide proper
medical documentation of these absences. During the interview Hypes
promised to provide proper medical documentation for further absences or
tardiness due to illness.

                                        3
continued without proper documentation.              On July 1, 1994, Hypes

began to track his own attendance record, which demonstrated that

he was absent on July 1, 6, 13, 26, 29 and August, 1 and 5, and

worked half days on July 27 and 28 and August 2, 3 and 4.

      On   August     5,   1994,   Hypes     was    diagnosed   with   chronic

obstructive lung disease.          On or about August 11, 1994, Hypes

provided FCC with a letter from his physician, Dr. Brooks Emory,

advising of Hypes’ diagnosis and scheduled treatment beginning on

August 12, 1994.      Thereafter, Hypes was hospitalized for tests on

August 15, 1994.      In a statement dated August 25, 1994, Dr. Emory

advised FCC that the date for Hypes’ release was indeterminate but

that the restrictions on Hypes were temporary.             This prompted FCC

to   notify   Hypes    that   he   was   eligible    to   receive   short-term

disability benefits at a rate of 100% of his pay for the period

August 8 through 29, 1994.          The letter also notified Hypes that

time away from work during short-term disability was counted toward

the twelve weeks for which he was eligible under FCC’s Family

Medical Leave Policy, a copy of which was enclosed with the letter.

Hypes was also notified by telephone that he could use his vacation

pay to cover an additional two weeks of absence through September

9, 1994.

      Hypes’ medical release from Dr. Emory, dated September 9,

1994, indicated that Hypes was able to return to work on September

12, 1994, to full activity, without restrictions.               Hypes returned

to work on September 13, 1994.           The following day, September 14,

Hypes met with Kim Lee and Marilyn Mays, FCC’s Employee Relations


                                         4
Manager. At that time Hypes was informed that he would be expected

to be at work on time, and, if he were medically unable, then the

appropriate documentation would be necessary.             Hypes expressed his

concern   that    his   condition     would   make   it   difficult   if   not

impossible to be at work by 8:30 a.m., and therefore, he requested

an accomodation, i.e., working without a neck tie and starting work

later in the morning.      However, since the release from Dr. Emory

was without      restriction,   his    request   was   denied.     Hypes   was

instructed to obtain a revised release which would identify any

further limitations. By letter dated September 19, 1994, Dr. Emory

advised FCC that travel might be exceedingly difficult for Hypes at

that time, but did not identify any restrictions or limitations

affecting Hypes’ ability to attend work regularly, punctually and

in appropriate attire.

     In spite of Dr. Emory’s conclusion that Hypes should be able

to get to work on time and work a full schedule, Hypes subsequently

missed nine (9) full days (Sept. 19, 20, 26, 27, Oct. 11, Nov. 14,

15, 16, 30) and seventeen (17) half days (Sept. 21, 22, 28, Oct. 3,

5, 13, 17, 18, 20, 25, 28, Nov. 2, 9, 17, 18, 25, 29).             There was

no documentation by Hypes of the reason for the absenteeism and

tardiness after September 19, 1994.           Hypes own notes reflect that

in the five month period from July 1 through December 2, 1994, he

missed sixteen (16) full days and twenty-three (23) half days of

work, exclusive of the twenty-five (25) days he missed while on

short-term disability leave.          In his deposition testimony, Dr.

Emory confirmed Hypes’ ability to work a full schedule without


                                       5
restrictions both before and after the period of Hypes’ short-term

disability leave.     Dr. Emory also testified in his deposition that

during an office visit on September 28, 1994, Hypes had complained

of difficulty getting started in the morning so that he could make

it to work on time. Nevertheless, Dr. Emory apparently believed it

was up to Hypes whether to get up an hour earlier so that he could

make it to work on time.2        Therefore, no further restriction was

obtained or produced by Hypes following the revised release from

Dr. Emory on September 19, 1994, and, contrary to his promise in

the April 27, 1993, meeting with Lee and Mays, Hypes provided no

medical documentation to explain the absences after September 19,

1994.      Because of Hypes’ persistent absenteeism and failure to

provide medical documentation to support these absences or the need

for accomodation, Kim Lee informed Hypes that he no longer had a

position in the Independent Review Services Division.            The final

decision to terminate Hypes was made by Marilyn Mays, and Hypes was

removed from the payroll effective December 31, 1994.             FCC has

continually     maintained    that   Hypes   was   fired   for   excessive

unexplained absenteeism.

                                     III.

        Did the district court err by granting summary judgment?

                                      A.

                             Standard of Review


    2
     In Dr. Emory’s deposition testimony this comment about getting up an
hour earlier was made in a cursory, almost off-hand fashion, and does not
appear to be a medical assessment of how much additional time Hypes would
actually need to get started in the morning because of his condition.

                                      6
     “We review the district court’s grant of summary judgment de

novo, applying the same standards as the district court.” Cleveland

v. Policy Management Systems Corp., 1997 WL 464657, at *2 (5th Cir.

Aug. 14, 1997).        If plaintiff lacks evidence sufficient to create

a genuine issue of fact in support of a necessary element of a

claim or claims, then summary judgment is appropriate against

plaintiff on that claim. River Production Co., Inc. v. Baker Hughes

Production Tools, Inc., 98 F.3d 857, 859 (5th Cir. 1996) (citing

Fed.R.Civ.P. 56(c)).

                                          B.

                                      Law

     All    of   the    statutory   schemes          Hypes    sued    under    prohibit

intentional discrimination based on a specified motive.                        The ADA

and LCRHP prohibit discrimination in employment against disabled

persons, on the basis of a disability, when the disabled person can

perform    the   essential      functions       of    the    job     with   reasonable

accomodation, if necessary. 42 U.S.C. § 12101, et seq.; La. Rev.

Stat. Ann., § 46:2254; Burch v. Coca-Cola Co., 119 F.3d 305 (5th

Cir. 1997) (discussing ADA);Turner v. City of Monroe, 634 So.2d 981

(La. App. 2 Cir. 1994) (discussing LCRHP).                     The ADEA and LADEA

prohibit discrimination in employment on the basis of age. 29

U.S.C. § 623, et seq.; La. Rev. Stat. Ann., § 23:972 (prohibiting

employers    from      taking   various       discriminatory         actions    against

employees “because of such individual’s age”); Price v. Marathon

Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997) (ADEA). The FMLA

prevents    employers      from   discriminating            against    employees    for


                                          7
requesting leave authorized by the Act. 29 U.S.C. § 2617 (FMLA -

provides for private right of action by employee against employer

who “interfere[s] with, restrain[s], or den[ies] the exercise of

... any right provided under this subchapter.”).

     Under each of these statutory anti-discrimination schemes, the

employee bears the burden of proving that the employer’s actions

were motivated by the considerations prohibited by the statute.

Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995)

(in ADA cases “employer’s intent is a question of fact, for which

the plaintiff carries the burden of persuasion”); Turner v. City of

Monroe, 634 So.2d 981, 985 (La. App. 2 Cir. 1994) (describing the

plaintiff’s   burden   of   proof   under   the   LCRHP);   Bienkowski   v.

American Airlines, Inc., 851 F.2d 1503, 1504-05 (5th Cir. 1988)

(describing the application of the McDonnell Douglas-Burdine method

of shifting burdens to suits under the ADEA, where the ultimate

burden of proof remains with plaintiff); DeLoach v. Delchamps,

Inc., 897 F.2d 815, 818 (5th Cir. 1990) (applying the McDonnell

Douglas-Burdine method to suits brought under the LADEA); Oswalt v.

Sara Lee Corp., 889 F. Supp. 253, 259 (N.D.Miss. 1995) (holding

that under the FMLA the plaintiff must prove an adverse employment

decision because of a request for leave, which may be achieved by

using the McDonnell Douglas-Burdine formula).        Therefore, if Hypes

fails to prove that his termination was motivated by his age,

disability, or request for leave, there is no liability under the

ADA, LCRHP, ADEA, LADEA or FMLA.




                                     8
                                     C.

                                  Analysis

        The evidence in the instant case, viewed in the light most

favorable to Hypes, will only support the conclusion that FCC fired

him due to excessive absence. Given that the evidence conclusively

proves that Hypes was fired for excessive absence, no reasonable

juror could conclude that FCC fired Hypes because of his age or any

request for leave under the FMLA.         Therefore, summary judgment was

proper on Hypes’ claims under the ADEA, LADEA and FMLA.

        Nevertheless, if Hypes’ excessive absences were linked to his

disability, and FCC knew it when they fired him, we might say that

excessive    absence   is   a   pretext   or   even   a   proxy   for   Hypes’

disability, and he would have an arguable claim under the ADA and

LCRHP.    However, even if we accept that Hypes was fired because of

his disability, he is still not “otherwise qualified” and therefore

may not prevail on his ADA and LCRHP claims. 42 U.S.C. § 12112(a);

La. Rev. Stat. Ann., 46:2254(A); Daigle, 70 F.3d at 396 (ADA);

Turner, 634 So.2d at 987 (LCRHP).3          To be otherwise qualified to

perform the job and able to state a claim under the ADA and LCRHP,

Hypes must be able to perform the essential functions of the job

with or without reasonable accomodation. 42 U.S.C. § 12111(8); La.

Rev. Stat. Ann., 46:2253(4)(a).

        Hypes was not “otherwise qualified” for his job because: 1) as

    3
     Unlike the LCRHP, the ADA does not use the terminology “otherwise
qualified”. Rather, the ADA protects the “qualified individual with a
disability”. 42 U.S.C. § 12112(a). However, the difference is semantic
only, and does not effect our analysis, which is the same under the ADA and
LCRHP.

                                     9
the   district   court   correctly   concluded,   it   was   an   essential

function of his job, as a member of a team, that Hypes be in the

office, regularly, as near to normal business hours as possible,

and that he work a full schedule; and 2) even with the requested

flex-time accomodation, Hypes could not arrive at work early enough

or often enough to perform the essential functions of the job.          The

evidence demonstrates that this was not the sort of job which could

be done at home.         Hypes’ job required him to review various

confidential loan documents, which could not be taken from the

office. “An employer is not required to allow disabled workers to

work at home, where their productivity inevitably would be greatly

reduced.” Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d

538, 544 (7th Cir. 1995). Furthermore, he was a part of a team and

the efficient functioning of the team necessitated the presence of

all members.     “[T]eam work under supervision generally cannot be

performed at home without a substantial reduction in the quality of

the employee’s performance.” Id. at 544. Therefore, it was critical

to the performance of his essential functions for Hypes to be

present in the office regularly and as near as possible to normal

business hours.

      Other courts are in agreement that regular attendance is an

essential function of most jobs. Rogers v. International Marine

Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (“[a]n essential

element of any government job is an ability to appear for work ...

and to complete assigned tasks within a reasonable period of time”)

(quoting Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)). See also


                                     10
Tyndall v. Nat’l Educ. Centers, Inc. of Cal., 31 F.3d 209, 213 (4th

Cir. 1994) (“a regular and reliable level of attendance is a

necessary element of most jobs”); Law v. United States Postal

Serv., 852 F.2d 1278, 1279-80 (Fed. Cir. 1988) (holding that “an

agency is inherently entitled to require an employee to be present

during scheduled work times, and, unless an agency is notified in

advance, an employee’s absence is disruptive to the agency’s

efficient operation”); Walders v. Garrett, 765 F. Supp. 303, 309-10

(E.D. Va. 1991) (holding that “employees cannot perform their jobs

successfully without meeting some threshold of both attendance and

regularity[;] the necessary level of attendance and regularity is

a   question   of    degree   depending   on   the   circumstances    of    each

position, ... however, ... some degree of regular, predictable

attendance is fundamental to most jobs”), aff’d, 956 F.2d 1163 (4th

Cir. 1992); Santiago v. Temple Univ., 739 F. Supp. 974, 979 (E.D.

Pa. 1990) (“attendance is necessarily the fundamental prerequisite

to job qualification”), aff’d, 928 F.2d 396 (3d Cir. 1991).

      Although Hypes proposed an accomodation of flex-time, that

accomodation still would not enable Hypes to perform the essential

functions of his job.          The evidence, viewed in the light most

favorable to Hypes, at best only establishes that he needed an

additional hour in the morning to get to work.               While Hypes was

still with FCC, Dr. Emory identified only one limitation resulting

from Hypes’ disability: inability to travel.            Hypes’ told Lee and

Mays that he might have difficulty coming to work at 8:30 a.m.

because of     his    disability,   however,    he   did   not   identify   any


                                     11
specific accomodation for that limitation, i.e., one hour, two

hours or more.      “When the nature of the disability, resulting

limitations, and necessary accomodations are uniquely within the

knowledge of the employee and his health-care provider, a disabled

employee cannot remain silent and expect his employer to bear the

initial burden of indentifying the need for, and suggesting, an

appropriate accomodation.” Taylor v. Principal Financial Group,

Inc., 93 F.3d 155, 165 (5th Cir. 1996).           It was only after the

fact, during his deposition testimony that Dr. Emory made the off-

hand remark that Hypes needed an additional hour to get to work.

FCC was clearly not in possession of that information while Hypes

was still employed by them.       On the contrary, the indication they

received from Dr. Emory was that Hypes had no limitations other

than traveling.

       Nevertheless, even if we assume that FCC knew Hypes needed an

additional hour to get to work, and that Hypes had requested a

flex-time accomodation of one hour, Hypes still is not otherwise

qualified to perform the essential functions of the job.                    The

evidence shows that Hypes regularly came to work as late as 10:30

a.m. to 1:00 p.m., and, almost as often, he failed to come to work

at all.     Therefore, the requested flex-time accomodation of one

hour   would   rarely   be   enough   to   actually     ameliorate    Hypes’s

tardiness    and   absenteeism.       Since   regular    attendance    is   an

essential function of Hypes’ job, and since he could not be

expected to have regular attendance even with the requested flex-

time accomodation, Hypes is not “otherwise qualified” to perform


                                      12
this job and thus may not prevail under the ADA or LCRHP.

                                    IV.

     Did the district court err by upholding the magistrate
    judge’s denial of plaintiff-appellant’s motion to amend?

                                     A.

                            Standard of Review

     We review the district court’s denial of Hypes’ motion to

amend   the   complaint   for   abuse     of    discretion.    Fitzgerald,     v.

Secretary, United States Dep’t. of Veterans Affairs, 1997 WL 473337

at *6 (5th Cir. Sept. 5, 1997) (citing Baker v. Putnal, 75 F.3d

190, 196 (5th Cir. 1996).

                                     B.

                                    Law

     This court has recognized that a district court does not abuse

its discretion by refusing to allow an eleventh-hour amendment.

Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1199-

1200 (5th Cir. 1995) (holding that district court did not abuse its

discretion by refusing amendment sought ten months after amendment

deadline, where new matter could have been discovered and asserted

earlier).     The amendment sought in this case came seven months

after the amendment deadline, eleven months after the original

complaint was filed and one month before the trial date, which by

that time had been scheduled for almost eight months.              We need not

reach   the   question    whether   that       delay   and   proximity   to   the

scheduled trial date justified refusing the amendment, because,

even if the amendment had been allowed, summary judgment would have

been required on the ERISA claim as well.

                                     13
     Section 510 of ERISA provides in relevant part that:

     It shall be unlawful for any person to discharge ... a
     participant or beneficiary for exercising any right to
     which he is entitled under the provisions of an employee
     benefit plan ... or for the purpose of interfering with
     the attainment of any right to which such participant may
     become entitled under the Plan ...

“To recover under section 510, a plaintiff ‘need not show that the

sole reason for his termination was to interfere with pension

rights; however, the plaintiff must show that the employer had the

specific intent to violate ERISA.’” Olitsky v. Spencer Gifts, Inc.,

964 F.2d 1471, 1478 (5th Cir. 1992) (quoting Clark v. Resistoflex

Co., Div. of Unidynamics Corp., 854 F.2d 762, 770 (5th Cir. 1988).

See also Hines v. Massachusetts Mut. Life Ins. Co., 43 F.3d 207,

209 (5th Cir. 1995) (“[a]n essential element of a Section 510 claim

is proof of defendant’s specific discriminatory intent”).        As we

have previously explained, the evidence in this case will only

support the conclusion that FCC fired Hypes because of excessive

absenteeism.    Therefore,   the   evidence   will   not   support   the

conclusion that he was fired because of his potential eligibility

for long-term benefits under the pension plan any more than the

conclusion that he was terminated due to his age, disability or

eligibility for leave under FMLA.

     This court has held that, when deciding whether an amendment

should be allowed, the district court may consider the futility of

the amendment. Ashe, 992 F.2d at 542 (citing Foman v. Davis, 371

U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962).            It

would be nonsensical for this court to remand this matter to the

district court so that Hypes might amend his complaint to add a

                                   14
claim under Section 510 of ERISA, only to have the district court

properly grant summary judgment on that claim.              Therefore, our

conclusion that FCC fired Hypes due to excessive absence, and the

concomitant effect of that finding on Hypes’ ERISA claim, renders

the amendment question moot.

                                     V.

                                 CONCLUSION

      Hypes cannot succeed on his claims under the ADEA, LADEA or

FMLA, because the evidence clearly establishes that Hypes was fired

for excessive absenteeism, not because of his Age or requests for

leave.   Furthermore, even accepting that excessive absenteeism is

a pretext for Hypes’ disability, Hypes is not “otherwise qualified”

to   perform   the   essential    functions   of   the   job,   because   the

requested flex-time accomodation would not be enough to ensure

Hypes’ regular and predictable presence at work.                Hence, Hypes

cannot recover under the ADA or LCRHP. Finally, the district court

did not err in refusing to allow Hypes’ eleventh-hour amendment,

because the newly plead ERISA claim would have been subject to

summary judgment as well.        Therefore, we affirm.

AFFIRMED.




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