     Case: 17-40911      Document: 00514527305         Page: 1    Date Filed: 06/25/2018




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

                                                                                FILED
                                      No. 17-40911                          June 25, 2018
                                                                           Lyle W. Cayce
PAMELA S. QUICK,                                                                Clerk


              Plaintiff - Appellant

v.

WAL-MART STORES, INCORPORATED, doing business as WalMart,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:16-CV-109


Before JOLLY, JONES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Pamela S. Quick (“Quick”) challenges the district court’s grant of
summary judgment on her age- and disability-discrimination claims against
her former employer Wal-Mart Stores, Inc. (“WalMart”). Because Quick fails
to show that she was qualified for her position at the time of her discharge, we
affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40911
                                             I.
       WalMart hired Quick as a sales associate in the meat department of its
Portland, Texas, store in November 2013. Quick was 64 years old. In March
2014, Quick allegedly slipped at work, injuring her neck and back. Quick
returned to work with doctor-ordered lifting restrictions, yet her injuries
continued to cause her pain. After some time off beginning in December 2014,
Quick received a “Work Excuse” showing that she could return to work on
February 11, 2015. Soon thereafter, Quick met with WalMart’s store manager
and personnel coordinator, and they told her she needed to return to work. But
Quick refused, explaining that “she was physically unable to work at that
time.” According to Quick, she had been told by WalMart management that
she could return to work only if she was “100% with no restrictions.” WalMart
discharged her on February 15.
       Quick filed suit in Texas state court, alleging age, disability, and sex
discrimination under the Texas Labor Code (formerly known as the Texas
Commission on Human Rights Act (the “TCHRA”)) and FMLA interference and
retaliation. Upon removal, the district court granted summary judgment for
WalMart on all claims. 1 Quick now appeals the dismissal of her age- and
disability-discrimination claims.
                                            II.
       This court reviews a grant of summary judgment de novo.                    Reed v.
Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012). “The party moving for
summary judgment bears the burden of identifying the portions of the record
that demonstrate the absence of a genuine issue of material fact,” and “[t]he


       1  The district court originally denied summary judgment on Quick’s age-
discrimination claim but later vacated its original order as to the age-discrimination claim
and granted summary judgment for WalMart. As a procedural matter, neither party disputes
that the district court was well within its authority under Federal Rule of Civil Procedure
54(b) in doing so.
                                             2
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                                       No. 17-40911
nonmovant must then point to or produce specific facts demonstrating that
there is a genuine issue of material fact.” E.E.O.C. v. Chevron Phillips Chem.
Co., LP, 570 F.3d 606, 615 (5th Cir. 2009). We “draw all reasonable inferences
in favor of the nonmoving party, and avoid credibility determinations and
weighing of the evidence.” Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893,
896 (5th Cir. 2002).        We may affirm summary judgment on any ground
supported by the record. Ballard v. Burton, 444 F.3d 391, 402 (5th Cir. 2006).
                                             III.
       Quick alleges that WalMart discharged her because of her age and
disability, in violation of the TCHRA. The TCHRA is “modeled on” the Age
Discrimination in Employment Act (“ADEA”) and the Americans with
Disabilities Act (“ADA”), so “Texas courts look to the developing body of federal
decisional law in resolving discrimination claims.” Jaso v. Travis Cty. Juvenile
Bd., 6 S.W.3d 324, 328 (Tex. App. 1999) (ADEA); Little v. Texas Dep’t of
Criminal Justice, 148 S.W.3d 374, 382 (Tex. 2004) (“[B]oth the federal court
decisions interpreting the ADA and the federal administrative regulations
regarding the ADA guide our interpretation . . . .”). To establish a prima facie
case under both the ADEA and the ADA, a plaintiff must prove that she was
qualified for the position in question at the time of her discharge. 2 Jackson v.
Cal-W. Packaging Corp., 602 F.3d 374, 378 (5th Cir. 2010) (ADEA); E.E.O.C.
v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir. 2009) (ADA).




       2 A plaintiff “can ordinarily establish a prima facie case of age discrimination” by
showing she “had not suffered physical disability . . . or some other occurrence that rendered
h[er] unfit for the position for which [s]he was hired.” Bienkowski v. Am. Airlines, Inc., 851
F.2d 1503, 1506, 1506 n.3 (5th Cir. 1988). And as for disability discrimination, 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)
(2012).
                                              3
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                                      No. 17-40911
       “A person who cannot do any work, let alone the particular work required
for the job from which [s]he was discharged, is not a ‘qualified individual’”
under the ADEA or the ADA. Dorsey v. Boise Cascade Co., 611 F. App’x 212,
214 (5th Cir. 2015) (analyzing ADA); Wooten v. McDonald Transit Assocs., Inc.,
788 F.3d 490, 499 n.7 (5th Cir. 2015) (explaining “qualified” in the ADEA
context refers to “objective job qualifications” such as “physical capacity”); see
also Holtzclaw v. DSC Commc’ns Corp., 255 F.3d 254, 258, 260 (5th Cir. 2001)
(holding plaintiff was not qualified under the ADEA in the light of the court’s
conclusion that plaintiff was not qualified under the ADA because plaintiff said
“it was ‘not possible to work’ even with any form of accommodation”). Quick
testified that “the last time” she believed she was “physically able to work in
any capacity” was “[r]ight around” December 2014. 3 More specifically, the
WalMart meat-sales-associate job description lists “[m]ov[ing] up and down a
ladder” as a physical activity “necessary to perform one or more essential
functions of t[he] position.” Quick testified that, since December 2014, she has
not been able to move up and down a ladder, nor “do any job” requiring
climbing. 4
       By Quick’s own account, she was unqualified for her meat-department
position when WalMart terminated her in February 2015. And when given the
opportunity to explain her testimony in her briefing on appeal, Quick offered



       3  Quick had also testified that the “last time” she was “physically able to work” was
February 2014 before she was fired November 2015. Those dates conflict with the record
evidence regarding Quick’s discharge. But in any event, that testimony confirms Quick was
physically unable to work before WalMart discharged her.
        4 Quick’s cited testimony does not address accommodations and references only her

inability to work in any capacity. So although we acknowledge Quick’s position that she
asked for accommodations and was denied, those requests do not change the fact that she
concedes she could not do any work at the time of her discharge. And she does not contend
that additional leave would have enabled her to perform the essential functions of her
position upon return, saying only that WalMart failed to “explor[e] whether some additional
leave would allow [her] to return to work.”
                                             4
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                                 No. 17-40911
neither rebuttal nor explanation. Thus, we take her at her word. The district
court did not err in granting summary judgment on Quick’s age- and disability-
discrimination claims.
                                      IV.
      In sum, Quick fails to point to specific facts demonstrating that there is
a genuine issue of material fact as to whether she was qualified for her position
at the time of her discharge. The judgment of the district court is
                                                                   AFFIRMED.




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