                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                           No. 98-20711
                         Summary Calendar


                           GWEN ELLIOT

                                              Plaintiff-Appellant,

                              versus

                  HORIZON HEALTHCARE CORPORATION

                                               Defendant-Appellee.

          Appeal from the United States District Court
               for the Southern District of Texas
                          (H-97-CV-378)
                         April 27, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

          In this pregnancy discrimination case, appellant Gwen

Elliot challenges the district court’s grant of summary judgment in

favor of Horizon Healthcare Corporation (“Horizon”).   The district

court wrote a comprehensive and careful opinion.   Because we agree

with the district court that Elliott was no longer qualified as a

nursing assistant, due to medical restrictions imposed on her by

her doctor, and because she produced no evidence that she was

treated differently than non-pregnant employees, we affirm the

grant of summary judgment for Horizon.




     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
for the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                               BACKGROUND

            On January 4, 1996, Elliott began working for Horizon as

a nursing assistant, a job that required her to perform such

functions as grooming and bathing elderly patients, turning and

repositioning patients, taking patients on walks, and assisting

them into wheelchairs from their beds.        Because of the physical

demands placed on nursing assistants, the formal job description

stated that they would be required to “continuously”1 lift objects

from 1-75 pounds.     Eight    days after beginning work, Elliott

informed her supervisor, Jill Schwartz, that she was pregnant.

Elliott also produced a note from her doctor ordering her to

perform “no lifting.”      Schwartz told Elliot that her doctor’s

restriction   rendered   her   unqualified   for   a   nursing   assistant

position and unless she could get the lifting restriction raised,

there was no longer a position for her.      Thus, Elliott returned to

her doctor (three more times) and eventually obtained a doctor’s

order raising the restriction to 35 pounds.

            Elliott then attempted to be reinstated as a nursing

assistant or be reassigned to a different position.2         Her efforts

failed to secure a job because each of the jobs she requested had

lifting requirements that exceeded the 35 pound restriction imposed



    1
     “Continuously” meant that nurses would be lifting objects at
least 67% of the time.
        2
       After appellant unsuccessfully requested reinstatement or
reassignment from Schwartz, she made similar requests to Henry
Backstrom, Horizon’s regional manager for human resources, and
Nancy Pearson, the facility administrator.

                                   2
by her doctor.3      Each of the Horizon supervisors she spoke to

reiterated that she did not qualify for any available position due

to her lifting restriction and unless the restriction was raised,

there was no position available for her.

          After     her   attempts   at   securing   continued   employment

failed, Elliott resorted to the courts for relief.         She brought the

present suit in Texas state court under the Texas Commission on

Human Rights Act (“TCHRA”) alleging that Horizon discriminated

against her because she was pregnant.          After Horizon removed the

case to federal court, the district court granted summary judgment

for Horizon, holding that Elliott failed to show a prima facie case

of discrimination.

                            STANDARD OF REVIEW

          This court reviews the grant of summary judgment de novo.

Summary judgment is proper if “the pleadings, depositions, answers

to interrogatories, and admissions on file, together with any

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as

a matter of law.”    Fed. R. Civ. P. 56(c); see also Celotex Corp. v.

Citrate, 477 U.S. 317, 322-24 (1986).          Under this standard, all

fact questions must be viewed in the light most favorable to the

non moving party, and questions of law are reviewed de novo.           See

    3
     The formal job description for each of the three alternative
positions requested by Elliott had lifting requirements that
exceeded her limitations imposed by her doctor.     For instance,
Laundry Assistants and Dietary Assistants were required to lift
objects weighing between 36-75 pounds up to 33% of the time while
Housekeepers were required to lift objects weighing between 36-50
pounds up to 10% of the time.

                                      3
Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir.

1995).

                                DISCUSSION

          The TCHRA forbids employment discrimination on the basis

of sex.   See Tex. Lab. Code Ann. § 21.051 (West 1996).          Under the

TCHRA, sex discrimination includes “discrimination because of or on

the   basis   of   pregnancy,   childbirth,   or   a   related    medical

condition.”   Tex. Lab. Code Ann. § 21.106(a) (West 1996).

          Texas courts may rely on pertinent federal discrimination

law in interpreting the relevant provisions of the TCHRA. See Gold

v. Exxon Corp., 960 S.W.2d 378, 380 (Tex. App.--Houston [14th

Dist.] 1998, no writ); Specialty Retailers, Inc. v. DeMoranville,

933 S.W.2d 490, 492 (Tex. 1996) (“Because one purpose of the

Commission on Human Rights Act is to bring Texas law in line with

federal laws addressing discrimination, federal case law may be

cited as authority.”).     To create a genuine, material fact issue

concerning pregnancy discrimination under the federal and state

standards, a plaintiff may offer either direct evidence or indirect

evidence that satisfies her share of the burden-shifting test

established by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).    This test requires the

plaintiff to show: “(1) she was a member of a protected class, (2)

she was qualified for the position she lost, (3) she suffered an

adverse employment action, and (4) that others similarly situated

were more favorably treated.”        Urbano v. Continental Airlines,




                                    4
Inc., 138 F.3d 204, 206 (5th Cir.), cert. denied __ U.S. __, 119 S.

Ct. 509 (1998); see also Gold, supra.

               Appellant claims here, as in the district court, that

Texas    has    abolished    the   prima       facie   requirements    and   burden

shifting scheme of McDonnell Douglas, and she need only demonstrate

that her pregnancy was a motivating factor in the termination.                  See

Texas Dep’t of Human Serv. v. Hinds, 904 S.W.2d 629 (Tex. 1995);

Passons v. University of Texas, 969 S.W.2d 560 (Tx. App.--Austin

1998,    no    writ).    These     cases,      however,   do   not   abrogate   the

McDonnell Douglas standard as Elliott contends. Hinds specifically

observes that the McDonnell Douglas burden-shifting scheme is

applicable in employment discrimination cases, although the Texas

court did not find that scheme, which requires the employer to

articulate a legitimate nondiscriminatory reason, compatible with

the plaintiff’s burden of proof under the Texas Whistleblower

Statute.       Passons held only that but-for causation is the test of

actionable discrimination rather than sole cause, and Passons held

that federal standards apply to state law discrimination cases, 969

S.W.2d at 563.       Elliott’s ingenious argument is completely wrong.



               Elliott alleges first that she adduced direct evidence of

discrimination.         Direct evidence of discrimination is evidence

which,    if     believed,   would    prove       discrimination      without   any

inferences or presumptions.          See Bodenheimer v. PPG Indus., Inc.,

5 F.3d 955, 958 (5th Cir. 1993).               Appellant’s only direct evidence

of discrimination is the initial conversation she had with Schwartz


                                           5
in which, according to appellant’s brief, Schwartz told her that

she could not keep her job because she was pregnant.                 Neither

Appellant’s   affidavit    nor   her       deposition   indicates   any    such

comment; instead, they show there was no work for her at Horizon

because she could not perform the physical demands of employment.

In her affidavit, Elliott testified that Schwartz “stated that I

could not keep my job at the San Jacinto Manor while I was pregnant

because I could not do the things that I was hired on to do.”                In

her deposition, Elliott testified that Schwartz said “that with me

being pregnant and unable to lift, she no longer had a position for

me unless I could have the weight limit lifted.”            At the time the

conversation occurred, Elliott showed Schwartz a doctor’s note that

ordered Elliott to perform “no lifting.”           Because Elliot could no

longer perform all of the duties for which she was hired, she was

told that she could retain her job only if her doctor raised the

lifting restriction.      The employer’s concern was for her physical

capability to do the work, not her pregnancy.

          Alternatively, Elliott relies on indirect evidence under

the McDonnell Douglas framework.             In making a prima facie case

based on indirect proof of discrimination, Elliott was required to

show that “she was qualified for the position she lost.”             Urbano,

138 F.3d at 206.   With a lifting restriction of 35 pounds, she was

not qualified to be a nursing assistant or to hold the other

physical labor positions at Horizon which she sought.                     Thus,

Horizon was entitled to terminate her employment.             Neither Texas

law nor its federal counterpart requires employers “to grant


                                       6
preferential treatment to pregnant women.”            Id. at 207.     Instead,

employers must ignore a woman’s pregnancy and treat her like

similarly situated employees.    Id.       This is what Horizon did.      Each

of the supervisors told Elliott that the lifting restriction -- not

her pregnancy -- resulted in her termination.

           Elliott   has   produced       no   evidence    casting    doubt   on

Horizon’s policy or suggesting that she was treated differently

than a nonpregnant employee who was physically unable to perform

the demands of the job.       In addition, Elliot admitted in her

deposition that, due to her medical restriction, she did not meet

the formal requirements for a nursing assistant, laundry assistant,

dietary assistant, or housekeeper. In short, as the district court

found, Elliott’s indirect proof of discrimination fails because she

failed to create genuine issues of material fact either on her

qualifications or on disparate treatment of others.

                              CONCLUSION

           For the foregoing reasons, the district court’s order,

granting   summary   judgment    for       appellee       Horizon    Healthcare

Corporation is AFFIRMED.




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