     Case: 13-10667      Document: 00512612136         Page: 1    Date Filed: 04/29/2014




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

                                                                                   FILED
                                      No. 13-10667                             April 29, 2014
                                                                              Lyle W. Cayce
MAETTA GREEN,                                                                      Clerk


                                                 Plaintiff-Appellant
v.

MEDCO HEALTH SOLUTIONS OF TEXAS, L.L.C.; MEDCO HEALTH
SOLUTIONS, INCORPORATED; AON HEWITT ABSENCE
MANAGEMENT, L.L.C., formerly known as Disability Management
Alternatives, L.L.C., doing business as Hewitt LCG,

                                                 Defendants-Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:11-CV-2432


Before REAVLEY, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       Maetta Green appeals from the district court’s grant of summary
judgment in favor of the defendants in her suit alleging employment
discrimination and breach of contract. We AFFIRM for essentially the same
reasons given by the district court.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10667
      Green is a former employee of defendant Medco Health Solutions of
Texas, LLC (Medco). Green had a history of attendance issues at work, for
which she was verbally cautioned. In June 2010, Green stopped working
because of health issues related to headaches and blurred vision, for which she
sought treatment from several doctors. She applied for short term disability
benefits under Medco’s benefits program, but the third-party claims
administrator, defendant Aon Hewitt, determined that she was not disabled.
Green subsequently filed two appeals of the benefits decision, both of which
were denied.
      In October 2010, Green’s absences from work up to that point were wiped
clean because her job became subject to a different attendance policy under a
collective bargaining agreement.       In December 2010, after Green’s second
appeal of the benefits decision was denied, Medco determined that Green’s
absences from work had been unexcused, and it terminated her for violating
the company’s attendance policy.        Green filed suit, alleging that Medco
terminated her because of a disability, in violation of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.; that Medco failed to engage
in discussions of accommodation, also in violation of the ADA; and that Medco’s
denial of short term disability benefits was a breach of contract. The district
court rejected each of these claims.
      We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. See Stauffer v. Gearhart,
741 F.3d 574, 581 (5th Cir. 2014); Fed. R. Civ. P. 54(a).
      Green argues first that the district court erred in granting summary
judgment on her breach of contract claim because short term disability benefits
were promised to her as one of the terms of her employment. The benefit plan
summary stated, however, that nothing within the summary “shall be
construed to create any promise or contractual right to employment or to the
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                                 No. 13-10667
benefits of employment.” Green was an at-will employee, and she fails to show
that providing short term disability benefits was promised as a term of
employment. The plan summary specifically stated that providing short term
disability benefits was a payroll practice and that Medco could amend or
terminate the benefits program in whole or in part at any time. The district
court correctly concluded that, under Texas law, there was no valid contract.
See Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993); see
also Hirth v. Metro. Life Ins. Co., 189 F. App’x 292, 293 (5th Cir. 2006); cf.
Gamble v. Gregg Cnty., 932 S.W.2d 253, 255 (Tex. App.—Texarkana 1996, no
writ) (“In an employment-at-will situation, an employee policy handbook or
manual does not, of itself, constitute a binding contract for the benefits or
policies stated unless the manual uses language clearly indicating an intent to
do so.”).
      Moreover, even if there were a contract, Medco and the claims
administrator followed the procedures outlined in the plan summary for
reviewing a disability benefits claim, including the two-step appeals process.
The peer review conducted of Green’s medical records showed that Dr.
McCurley deferred to the neurologist on work functionality issues.          The
neurologist indicated in an affidavit that Green was unable to perform her job
functions due to headaches, impaired cognition from the headaches, and
blurred vision. However, she also stated in the peer-to-peer consultation that
the headaches alone were not disabling. Further, there were no objective
examination reports of Green’s cognition, and Green’s visual acuity and field
examinations were normal. We conclude from our review of the record that
the claims administrator did not abuse its discretion in concluding that Green
failed to present objective medical evidence in support of her disability claim,
and Green has not shown a breach of any purported contract. See Atkins v.
Bert Bell/Pete Rozelle NFL Player Retirement Plan, 694 F.3d 557, 566 (5th Cir.
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2012) (“[R]eview of the administrator’s decision need not be particularly
complex or technical; it need only assure that the administrator’s decision
fall[s] somewhere on a continuum of reasonableness—even if on the low end.”
(internal quotation marks and citation omitted)); see also Aryain v. Wal-Mart
Stores Tex. LP, 534 F.3d 473, 478 (5th Cir. 2008) (“We may affirm the district
court’s summary judgment on any ground raised below and supported by the
record.”).
      Green next challenges the district court’s grant of summary judgment on
her ADA claims. The ADA prohibits employers from discriminating against
qualified employees who have disabilities and requires employers to make
reasonable accommodations for those employees. See 42 U.S.C. § 12112. In
order to prevail on her claim of disability discrimination, Green had to show
that (1) she is disabled, (2) she is qualified for her job, and (3) her employer
discriminated against her because of her disability. See Neely v. PSEG Tex.,
Ltd., 735 F.3d 242, 245 (5th Cir. 2013).
      In the district court, Medco assumed for purposes of summary judgment
that Green was disabled. It argued, however, that she was not qualified insofar
as she could not perform the essential functions of her job because she could
not attend work. See, e.g., Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755,
759 (5th Cir. 1996) (recognizing that the ability to appear for work is an
essential function of most jobs). Green argues that compliance with Medco’s
attendance policy was not an essential part of the job. The district court
assumed, however, as do we, that Green was a qualified individual and had
stated a prima facie case. We therefore proceed to her next argument.
      Medco put forth evidence that it terminated Green because she had an
unallowable number of unexcused absences under its attendance policy, and
that it had terminated other employees for similar reasons.         This was a
legitimate, non-discriminatory reason for the termination, and it shifted the
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                                 No. 13-10667
burden to Green to show that it was merely a pretext for discrimination. See
EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009).
      Green argues that there are factual issues in dispute as to Medco’s
proffered reason because she was eligible for an exception to Medco’s
attendance policy. The exception to the policy permitted an employee to count
an absence from work of “two days or more” as a single “occurrence” rather
than as multiple absences if, inter alia, the employee provided a confirming
doctor’s note. If Green’s absence from work in October and November 2010
were treated as a single occurrence, she would not have been in violation of the
attendance policy. Green did not provide a confirming doctor’s note, however.
She argues that there are factual issues about whether she had an opportunity
to submit a note, but Medco presented evidence that the exception was
inapplicable in any event. Medco’s witnesses explained that the exception
generally applied to common short term absences, such as for a cold or flu, and
was not meant to apply to the kind of prolonged multiple-month absence that
Green experienced, which is generally subject to a reasonableness standard.
As the district court held, Green presented no summary judgment evidence to
contradict Medco’s interpretation of the policy or its calculation of absences,
nor does she point to any evidence on appeal. See, e.g., Simmons v. AT&T, 71
F.3d 876, 1995 WL 725457, at *2 (5th Cir. 1995) (unpublished) (“We have
consistently held that a plaintiff's subjective beliefs and conclusionary
allegations, unsupported even by circumstantial evidence, are insufficient to
sustain a claim of discrimination in the face of evidence showing an adequate,
nondiscriminatory reason for the behavior at issue.”); 5th Cir. R. 47.5.3. Green
thus fails to show pretext.
      Green next argues that Medco violated the ADA by failing to respond to
her requests for a reasonable accommodation in order to return to work. The
ADA requires an employer to respond to an employee’s request for
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                                 No. 13-10667
accommodation by engaging “in a good faith interactive process” to find a
means of accommodating the employee’s disability. See Chevron Phillips, 570
F.3d at 621. The employer may not short-circuit the interactive dialogue by
terminating the employee rather than considering the request. See Cutrera v.
Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005).
      Green argues that Medco violated its obligation under the ADA to engage
in discussions of reasonable accommodation because it failed to respond to two
letters from her attorney, one on December 1, 2010, and another on December
8, 2010. The record shows the following timeline with respect to Green’s
requests: on Friday, November 26, 2010, Aon denied Green’s final appeal of the
denial of short term disability benefits; on Wednesday, December 1, Green
notified Medco through her attorney that she could return to work but
requested an accommodation in the form of a modified work schedule; on
Monday, December 6, Medco contacted Aon about the status of Green’s
disability appeal; the claims administrator notified Medco on December 7 that
Green’s second and final appeal had been denied; Green’s lawyer sent a second
letter to Medco on December 8; on December 9, Medco, having been informed
by the administrator that Green was not disabled, determined that Green’s
absences were unexcused, and it formally terminated her for violation of the
attendance policy.
      The district court held that Medco did not violate the ADA’s requirement
that it engage in discussions with Green about accommodations for two
reasons.   First, the court determined that Green’s request was untimely
because Medco had already effectively determined that Green would be
terminated because of the application of the attendance policy. Second, the
court determined that Green’s request would require Medco to overlook
misconduct that had already occurred, i.e. Green’s unexcused absence from
work in October and November 2010.
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                                 No. 13-10667
      Green, who is represented by counsel, does not address the district
court’s timeliness analysis. Green asserts that Medco could not stymie the
interactive process of discussion once her lawyer made the requests, but she
does not address the district court’s finding that Medco had already effectively
terminated her. Therefore, Green has waived a challenge to this basis for the
court’s decision. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993);
Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987).
      Green argues that Medco’s attendance policy is not an essential function
of the job. To the extent that this argument is meant to assert that Medco
could not have effectively terminated her for violation of the policy, the
argument is belied by the record, which shows that the attendance policy was
strictly enforced, that Medco had enforced it against other employees, and that
Green did not know of any employee who violated the attendance policy but
was not terminated.      Moreover, as the district court held, courts have
recognized that an accommodation that requires an employer to ignore prior
misconduct, including a violation of an attendance policy, is not the kind of
reasonable accommodation mandated under the ADA. See, e.g., Brookins v.
Indianapolis Power & Light Co., 90 F. Supp. 2d 993, 1007 (S.D. Ind. 2000) (“To
the extent [the employee] argues that [the employer] should have overlooked
his long string of absences, this is not an ‘accommodation’ that is required by
the ADA.”). Green’s absences from October through November 2010 were
unexcused because her disability claim was denied, and her request for a
modified work schedule effectively required Medco to ignore that fact. Green
argues, however, that the ADA requires employers to give preferential
treatment to employees with a disability. Because Green’s argument that she
should have been entitled to preferential treatment is made for the first time


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                                No. 13-10667
on appeal, we do not consider it. See Keelan v. Majesco Software, Inc., 407
F.3d 332, 339–40 (5th Cir. 2005).
      AFFIRMED.




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