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

                                                                            FILED
                                                                           July 29, 2008

                                     No. 08-40122                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MARION CREWS

                                                  Plaintiff-Appellant
v.

THE DOW CHEMICAL COMPANY

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:07-CV-107


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Appellant Marion Crews (“Crews”) was a Resource Leader for Dow
Chemical Company (“Dow”). Crews was responsible for determining which
employees should staff a project, reviewing employees, setting salary
recommendations, and directing assignments. Crews consistently received
strong performance evaluations and was expected to laterally transfer to a Dow
position in Europe. However, Crews’s human resources business partner, Tom


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 08-40122

Hutson, noticed that Crews displayed hand tremors, slurred speech, and
decreased engagement at meetings. Crews’s supervisor, Margaret Walker, also
noticed unusual behavior from Crews, including: inability to make organized
arguments concerning topics she was very knowledgeable about; discussing
improper topics during work-related meetings; missing or failing to cancel
meetings; and difficulty in using routine office equipment. Accordingly, Dow
notified Crews that her work duties were restricted until she completed a
fitness-for-duty assessment by independent medical physicians.             Such
restrictions included restricted access to Dow’s premises, e-mail, and verbal
communications. Crews continued to receive full pay and benefits and was
informed that her “sole work priority” was to cooperate with Dow Health
Services.
      On March 16, 2006, upon receiving written notice of the required fitness-
for-duty assessment, Crews filed a complaint with the Equal Employment
Opportunity Commission, alleging disability-based discrimination in violation
of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.
Four days later, Crews told a Dow physician that she wanted to pursue long-
term disability benefits and admitted that she was being treated for depression
and bipolar disorder via a complex prescription medication regime. Crews
presented a certification from her personal physician and, pursuant to her own
request, was placed on full-time paid medical leave under the Family and
Medical Leave Act (“FMLA”). When the FMLA leave expired, Crews continued
to receive pay and benefits from Dow.
      Crews then applied for long-term disability and Social Security benefits.
Crews submitted documentation from her personal physician, stating: “I do not
believe [Crews] will be able to return to her previous job.” On September 27,
2006, when Crews began receiving long-term disability benefits, she ceased to
be a Dow employee and no longer received payment from Dow. Every two to


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three months, Crews’s personal physician re-certifies that Crews will not be able
to return to work in the “foreseeable future.”
      Crews sued Dow alleging, inter alia, discrimination in violation of the ADA
based upon her physical impairment of severe hand tremors. Specifically, Crews
alleges that Dow discriminated against her by: (1) restricting her access to work
premises and e-mail; (2) cancelling her transfer to Europe; and (3) terminating
her employment.      The district court granted Dow’s motion for summary
judgment, finding that Dow did not discriminate against Crews because she
cannot simultaneously receive long-term disability benefits and remain an
employee of Dow. Crews now appeals.
      We review de novo the district court’s grant of summary judgment. Melton
v. Teachers Ins. & Annuity Ass’n of Am., 114 F.3d 557, 559 (5th Cir. 1997).
Summary judgment is appropriate only where there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c); Clark v. America’s Favorite Chicken Co., 110 F.3d 295, 297
(5th Cir. 1997).
      Under the ADA, an employer may not “discriminate against a qualified
individual with a disability because of the disability of such individual in regard
to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a). A “qualified individual
with a disability” is “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.”          42 U.S.C. §
12111(8). To determine whether someone is a qualified individual, we must
determine “whether the individual could perform the essential functions of the
job” and, if not, determine “whether any reasonable accommodation by the



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                                     No. 08-40122

employer would enable him to perform those functions.” Chandler v. City of
Dallas, 2 F.3d 1385, 1393-94 (5th Cir. 1993).
      Where a “qualified individual with a disability” relies upon circumstantial
evidence to establish unlawful discrimination under the ADA, we apply the well-
known McDonnell Douglas burden-shifting framework. See McInnis v. Alamo
Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000). “Under this framework, a
plaintiff must first make a prima facie showing of discrimination by establishing
that: (1) [h]e is disabled or is regarded as disabled; (2) he is qualified for the job;
(3) he was subjected to an adverse employment action on account of his
disability; and (4) he was replaced by or treated less favorably than non-disabled
employees.” Id. at 279-80. “Once the plaintiff makes his prima facie showing,
the burden then shifts to the defendant-employer to articulate a legitimate,
non-discriminatory reason for the adverse employment action.” Id. at 280.
Then, the burden “shifts back upon the plaintiff to establish by a preponderance
of the evidence that the articulated reason was merely a pretext for unlawful
discrimination.” Id.
      We find that Crews did not suffer unlawful discrimination when Dow
restricted her access to work premises and e-mail and cancelled her transfer to
Europe pending completion of a fitness-for-duty assessment. Even assuming
arguendo that Crews established a prima facie case, Dow articulated a
legitimate, non-discriminatory rationale for requiring Crews to undergo a
fitness-for-duty assessment–namely, the changes in Crews’s workplace behavior
noticed by Hutson and Walker. Dow reasonably could have found that such
changes might impair Crews’s performance as a Resource Leader.1 Based on the
summary judgment record, Crews has not established that this rationale was
pretextual. Therefore, Crews has not established a violation of the ADA.

      1
        It bears noting that Crews’s behavioral changes are distinct from her severe hand
tremors–the basis of her disability claim.

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                                       No. 08-40122

       Regarding Crews’s termination, which occurred upon her receipt of long-
term disability benefits, we find that Crews is not a “qualified individual with
a disability” under the ADA. According to her own physician, Crews cannot
return to work in the forseeable future. Thus, Crews cannot perform the
essential functions of her job, with or without reasonable accommodation. As the
district court found, receipt of long-term disability benefits and Social Security
benefits means that Crews is unable to perform her job.2 Crews cannot claim
incapacity to work for these purposes and then claim capacity to work for
purposes of the ADA. Accordingly, as of her receipt of long-term disability
benefits, Crews is not a “qualified individual with a disability” under the ADA
and the district court properly granted summary judgment in favor of Dow.
       AFFIRMED.




       2
        An individual is entitled to Social Security benefits “only if his physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot . . . engage in any other kind of substantial gainful work which exists in the
national economy . . . .” 42 U.S.C. § 423(d)(2)(A).

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