                 UNITED STATES COURT OF     APPEALS

                      FOR THE FIFTH CIRCUIT


                           NO. 97-50321
                         Summary Calendar


                         CORA JEAN JONES

                                                 Plaintiff-Appellee,



                              VERSUS

     KERRVILLE STATE HOSPITAL; TEXAS DEPARTMENT OF MENTAL
  HEALTH AND MENTAL RETARDATION; GLORIA P. OLSEN PH.D., in her
   individual and official capacities; EDWARD BASKIN, in his
   individual and official capacities; LARUE HAWKINS, in her
   individual and official capacities; BERYL BOERNER, in her
              individual and official capacities,

                                                         Defendants,

           KERRVILLE STATE HOSPITAL; TEXAS DEPARTMENT
            OF MENTAL HEALTH AND MENTAL RETARDATION,

                                              Defendants-Appellants.




          Appeal from the United States District Court
                For the Western District of Texas

                           June 4, 1998
Before JOLLY, BENAVIDES and PARKER, Circuit Judges.

PER CURIAM:

                                I.

                   FACTS & PROCEDURAL HISTORY

     Plaintiff-Appellee, Cora Jean Jones, was employed as an LVN at


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the Kerrville State Hospital (“Kerrville”), a facility operated by

the Texas Department of Mental Health and Mental Retardation

(“TDMHMR”) for the care and treatment of the mentally ill.                   Upon

being hired at Kerrville, Jones was required to complete a course

of training in the Prevention and Management of Aggressive Behavior

(“PMAB”), followed by a yearly refresher course.                PMAB training

included a physical portion, wherein employees were trained to use

the weight and force of the patient to subdue them with the least

risk of harm to the employee or patient.            This portion of the PMAB

training was known as the “mats” portion, because it was conducted

on padded mats.

     Upon being hired at Kerrville in September, 1992, Jones took

the PMAB training course.       She informed her instructors that she

could not participate in the “mats” portion, because she had

physical    limitations       caused       by   surgical       treatments      of

osteoarthritis    and   degenerative       joint   disease.1     She   was    not

required   to   participate    in   the    “mats”    portion,    and   yet    her

employment records reflect that she completed PMAB training.

     In March, 1993, Jones was asked to transfer to another ward to

cover for an LVN who had not been able to complete the “mats”


     1
      Jones and her physician, Dr. James Mitchell, testified that Jones
had osteoarthritis and degenerative joint disease which had been treated
with surgery on each shoulder and a cervical laminectomy. Dr. Mitchell
testified that Jones had a maximum 45 degree rotation of her neck, which
she demonstrated on the stand, limited function and weakness in raising her
arms over her head, and limited strength and mobility in her arms. Dr.
Mitchell testified that Jones was limited in her ability to push, pull,
lift and carry objects and that these limitations were permanent.

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portion of PMAB.   She notified the supervisor that she too had not

been able to complete the “mats” portion of PMAB training.      Jones’

case was presented to the hospital’s Americans with Disabilities

Committee on Jones’ request for an accomodation, i.e., exemption

from the “mats” portion of PMAB.       Jones’ immediate supervisor,

Barbara Gotcher, stated on a form submitted to the ADA committee

that Jones’ disability “[did] not affect safety of individuals

served, [did] not affect personal safety, and [did] not affect

safety of co-workers.”     Dr. Mitchell also submitted a statement

indicating that Jones could perform the duties of her current

position.    Jones testified at trial that during her time at

Kerrville, she never saw the techniques taught in the “mats”

portion actually used.   The ADA committee took no action on Jones’

request for accomodation.    She heard nothing further from the ADA

committee and she was allowed to remain at her original position

until September, 1993, when it came time for Jones to participate

in the PMAB refresher course.    Again she could not participate in

the “mats” portion.      After a consultation with Beryl Boerner,

Director of Nurses, Jones was notified on October 29, 1993, that

she could no longer work in a direct-care position.2      On November

3, 1993, Jones was placed on leave without pay.

     Jones sued under the Americans with Disability Act (“ADA”), 42

U.S.C. §12101, et seq.   The case against Kerrville and TDMHMR went

     2
      At the time of her removal from direct care, Jones was working in
the geriatric ward.

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to the jury on special interrogatories.           The jury found “that

successful completion of the more physical aspects of PMAB training

is an essential function of the position of licensed vocational

nurse at Kerrville State Hospital.”       The jury then found “that an

exemption from completion of the more physical aspects of PMAB

training would be a reasonable accomodation of Plaintiff Cora Jean

Jones’ disability.” The jury awarded Jones $25,000 in compensatory

damages.

     Jones filed a motion for equitable relief (injunctive relief,

back pay and front pay in lieu of reinstatement), and motion for

attorney’s fees and costs.      Defendants opposed Jones’ motion for

equitable relief and filed their own Fed. R. Civ. P. 60(b) motion

for judgment as a matter of law, or, in the alternative, motion for

new trial. The district court denied Defendants’ Rule 60(b) motion

and Jones’ request for injunctive relief.              The district court

granted Jones’ motion for back pay and front pay “in specific

amounts to be determined by future Court order.”             The district

court directed Jones to file an advisory “detailing the amount of

back pay requested[,] ... recalculating that amount to the date of

this judgment” and “also contain[ing] a detailed breakdown of all

components of Plaintiff’s request for front pay and specify[ing]

the manner in which that request has been calculated.”              Finally,

the district court granted Jones’ motion for attorney’s fees and

costs.

     Jones   filed   a   Supplemental   Motion   for    Equitable   Relief,

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Advisory for Back Pay and Front Pay and Supplemental Motion for

Attorney’s Fees. Defendants filed their objections.     Then, before

the district court could rule on Jones’ supplemental motions,

Defendants filed a notice of appeal challenging the denial of their

Rule 60(b) motion, the award of back pay and front pay, and the

award of attorney’s fees. Subsequent to the filing of this appeal,

the district court entered its order establishing the exact amounts

of front pay and back pay awarded to Jones.     Jones has filed a

motion to supplement the record with the district court’s order

establishing the exact amounts of front and back pay.    That motion

is granted, and therefore we need not address Appellee’s motion to

dismiss for lack of a final order.

                               II.

                          LAW & ANALYSIS

     “A motion for judgment as a matter of law ... in an action

tried by jury is a challenge to the legal sufficiency of the

evidence supporting the jury’s verdict.” Harrington v. Harris, 118

F.3d 359, 367 (5th Cir. 1997), quoting Hiltgen v. Sumrall, 47 F.3d

695, 699 (5th Cir. 1995).     “On review of the district court’s

denial of such a motion, the appellate court uses the same standard

to review the verdict that the district court used in first passing

on the motion,” i.e., “[a] jury verdict must be upheld unless

‘there is no legally sufficient evidentiary basis for a reasonable

jury to find’ as the jury did.” Id. citing Fed. R. Civ. P. 50


                                5
(a)(1).

     Special Interrogatory Number two asked the jury to determine

whether “successful completion of the more physical aspects [“mats”

portion] of PMAB training is an essential function of the position

of licensed vocational nurse at Kerrville State Hospital.”      The

jury held that it was.    Special Interrogatory Number three then

asked the jury to determine whether “an exemption from completion

of the more physical aspects of PMAB training would be a reasonable

accomodation of Plaintiff Cora Jean Jones’ disability.”    The jury

held that it would be.   Even given the highly deferential standard

stated above, the verdict in this case is fatally flawed.

     As a matter of law, it is an unreasonable accomodation for the

employer to have to exempt the employee from performance of an

essential function of the job.   See Barber v. Nabors, 130 F.3d 702,

709 (5th Cir. 1997)(“We cannot say that [the employee] can perform

the essential functions of the job with reasonable accomodation, if

the only successful accomodation is for [the employee] not to

perform those essential functions”).     The ADA protects disabled

persons who are “otherwise qualified”. 42 U.S.C. § 12112(a).   To be

otherwise qualified, the disabled person must be able to perform

the essential functions of the job with or without reasonable

accomodation. 42 U.S.C. § 12111(8).   If the disabled person must be

exempted from performance of an essential function of the job, then

she is not otherwise qualified and not protected by the ADA.   As it



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stands, the jury clearly found that Kerrville violated the ADA by

failing to make an accomodation that is unreasonable as a matter of

law.     Exemption from the “mats” portion was not a reasonable

accomodation and that alone is enough to overturn the finding of

liability in this case. The only question which remains is whether

this Court should remand this case for a new trial or render it

here and now.     We conclude that we must render for defendants.

       Jones built her entire case on two premises; 1) that the

“mats” portion of PMAB is not an essential function of the job; and

2) it is a reasonable accomodation for Jones to be exempted from

“mats”.    The jury decided the first point against Jones, holding

that “mats” was an essential function of her job.             The evidence

clearly supports the jury’s finding, implicit in their response to

Special Interrogatory Number two, that “mats” was an essential

function of Jones’ job.      As we mentioned, supra, as a matter of law

that holding forecloses the possibility of exemption from the

“mats” portion as an accomodation.          Jones presented no proof that

she    could   have   performed   the   “mats”   portion   with   reasonable

accomodation.     Accordingly, she did not demonstrate that she is an

otherwise qualified individual--that is, that she is capable of

performing the essential functions of the direct care LVN position

with or without reasonable accomodation--and she is thus not




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entitled to recover under the ADA.3

                                  III.

                               CONCLUSION

     To   remedy   the   shortcomings    of   this   verdict,   we   see   no

alternative but to reverse and render for defendants. Accordingly,

the district court’s award of back pay, front pay, attorney’s fees

and costs to plaintiff is vacated.

REVERSED AND RENDERED.




     3
      We express no opinion whether it would have been a reasonable
accomodation to reassign Jones to a non-direct care LVN position at
Kerrville where the “mats” portion was not an essential function, because
Jones did not pursue that possibility at trial.

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