     Case: 13-50035   Document: 00512327499   Page: 1   Date Filed: 07/31/2013




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

                                                                FILED
                                                               July 31, 2013

                              No. 13-50035                     Lyle W. Cayce
                            Summary Calendar                        Clerk



JOHN GOBER,

                                         Plaintiff-Appellant
v.

FRANKEL FAMILY TRUST, doing business as Management Support;
EDWARD B. FRANKEL, M.D.,

                                         Defendants-Appellees
________________

ALISSA MOORE,

                                         Plaintiff-Appellant

v.

FRANKEL FAMILY TRUST, doing business as Management Support;
EDWARD B. FRANKEL, M.D.,

                                         Defendants-Appellees



                Appeal from the United States District Court
                     for the Western District of Texas
                      Nos. 5:12-CV-83 and 5:12-CV-85


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
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                                       No. 13-50035

PER CURIAM:*
       The district court granted summary judgment rejecting claims filed by
John Gober and Alissa Moore under the Americans with Disabilities Act, Title
VII of the Civil Rights Act of 1964, and pendent state-law claims.                       The
defendants are their employer, Frankel Family Trust (doing business as
Management Support) and its sole trustee, Edward Frankel. Gober alleges he
was fired because of a disability, and Moore alleges she was fired in retaliation
for opposing Gober’s firing. We AFFIRM.
                                          FACTS
       Management Support, headquartered in California, owns and operates
apartment complexes in Texas, Arizona, and California. Among the complexes
are the Estates of Northwoods and Sedona Ranch located in San Antonio, Texas.
Moore began working for the Frankel Family Trust in 2003. In February 2010,
she became property manager of the Estates of Northwoods and Sedona Ranch
(the “Property”). As property manager, Moore hired and supervised other
employees, including maintenance personnel. Moore reported to Dave Adams,
the Regional Asset Manager. Adams reported directly to Edward Frankel, the
sole trustee and chief executive officer of Management Support.
       In June 2010, the Property had an opening for a maintenance foreman.
Moore knew Gober had experience as a lead maintenance technician from their
prior work together at another apartment complex from 1999 to 2001. Moore
contacted Gober about the opening, and he informed her of his recent surgery to
implant a defibrillator. Several days later, Gober’s cardiologist released Gober
for work with restrictions. Specifically, Gober could not work more than eight
hours per day or on weekends; he could not lift anything over 30 pounds; and he


       *
         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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could not be exposed to temperatures over 80 degrees Fahrenheit for more than
20 to 30 minutes. Upon his release to work, Gober contacted Moore and
informed her of these restrictions. He then completed an application with
Management Support and interviewed with the regional manager Adams and
then with Mike Boyd, a maintenance foreman at another location. The parties
dispute what Gober revealed at the interviews about his medical limitations. On
June 28, 2010, Management Support hired Gober.
      On his first day on the job, Gober completed new-hire forms with Moore.
Gober did not indicate he needed an accommodation on the “Essential Job
Functions” document. Moore also did not request medical verification of Gober’s
restrictions because she believed the job would not require that he work over
eight hours a day or lift heavy items.           On the “Employment Health
Questionnaire,” Gober indicated he could not lift more than 20 pounds, could not
move appliances, could not install air conditioners, and could not be on call. The
evidence establishes that when Gober indicated he could not be on call, he meant
that, because of his eight-hour workday restriction, he could not respond to after-
hours requests to return to the Property.
      Moore sent the new-hire forms to Management Support’s administrative
offices in California. Frankel was informed of the restrictions Gober noted on
the health questionnaire. Frankel directed Adams to fire Gober because being
on call was an essential job function and could not be accommodated. On Friday,
July 9, 2010, Adams fired Gober. Moore was upset that Adams was firing Gober.
She told Adams it was “not right” and “not legal.” On Monday, July 12, Frankel
instructed Adams to rehire Gober if Gober’s inability to be on call was
temporary, but Gober told Adams it was permanent. The same day, Adams fired
Moore for her mishandling Gober’s application.
      Moore and Gober filed complaints with the Equal Employment
Opportunity Commission and the Texas Human Rights Commission. Both

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individuals were issued right-to-sue notices. Gober contended Management
Support violated the Americans with Disabilities Act (“ADA”) and the Texas
Commission on Human Rights Act (“TCHRA”) by firing him because of a
disability and failing to accommodate his disability.              Moore contended
Management Support retaliated against her in violation of Title VII and the
TCHRA.      They both brought claims for intentional infliction of emotional
distress.   The district court granted summary judgment for Management
Support on all claims.
      Gober appeals the grant of summary judgment as to his ADA and TCHRA
claims, and Moore appeals only as to her TCHRA claim.
                                   DISCUSSION
      We review appeals from a grant of summary judgment de novo. Turco v.
Hoechst Celanese Corp., 101 F.3d 1090, 1092 (5th Cir. 1996).               Summary
judgment is appropriate if there “is no genuine dispute as to any material fact.”
Fed. R. Civ. P. 56(a).
I.    Gober’s Claims
      Under the ADA, “[n]o covered entity shall discriminate against a qualified
individual on the basis of a disability 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). To prevail on a claim of disability discrimination under the ADA,
Gober must prove that (1) “he has a ‘disability’”; (2) “he is ‘qualified’ for the job”;
and (3) Management Support made its adverse employment decision solely
because of Gober’s disability. Turco, 101 F.3d at 1092. The TCHRA “purports
to correlate state law with federal law in the area of discrimination in
employment.” NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999)
(quotation marks omitted). Texas “looks to analogous federal precedent for
guidance when interpreting the [TCHRA].” Id. Therefore, we consider these

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claims together and apply the legal standards for the ADA to analyze both
claims.
      Gober’s heart condition qualifies as a disability and Management Support
fired him because of this disability. The only issue, then, is whether Gober was
qualified for the maintenance foreman position. A “qualified individual” is an
“individual 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) (emphasis added). To avoid summary judgment,
Gober must show (1) “that he could perform the essential functions of the job in
spite of his disability” or (2) “that a reasonable accommodation of his disability
would have enabled him to perform the essential functions of the job.” Turco,
101 F.3d at 1093.
      To make the initial determination of whether a job function is essential,
among our considerations are “[t]he employer’s judgment as to which functions
are essential; [w]ritten job descriptions prepared before advertising or
interviewing applicants for the job; [and] [t]he amount of time spent on the job
performing the function.” 29 C.F.R. § 1630.2(n)(3)(i)-(iii). We also may consider
whether there is evidence that the employer actually requires employees in the
particular position to perform the function. See id. § 1630.2(n)(3)(vi)-(vii).
      After a de novo review of the evidence, we conclude that being on call,
which requires after-hours availability, is an essential function of the
maintenance foreman position. That finding means Gober was not qualified for
the position. As the district court noted, Frankel, the CEO of Management
Support, stated that being on call is an essential function; the written job
description for maintenance foreman states that being on call is a requirement;
the current employees of Management Support stated that the maintenance
foreman must respond as needed to after-hours emergencies; and Management
Support is under a legal obligation to have an employee on call 24 hours a day.

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That obligation is one to be performed by the maintenance foreman at the
Property. See TEX. PROP. CODE § 92.020(a) (“A landlord that has [ ] on-site
management . . . for a residential rental property must provide . . . a telephone
number that will be answered 24 hours a day for the purpose of reporting
emergencies related to a condition of the leased premises that materially affects
the physical health or safety of an ordinary tenant.”).
       Gober disputes that it was essential that the foreman be on call, relying
in part on Frankel’s testimony that the document entitled “Essential Job
Functions” applies to maintenance technicians and not necessarily just
maintenance foremen. Frankel also testified, though, that while the foreman is
a supervisory position, the foreman and the technicians’ jobs, “for the most part,
are very close,” which is why, at that time, they used the same job functions form
for the two positions. Additionally, Gober argues that the district court did not
appreciate the difference between being on call and being in the on-call rotation.
Essentially, Gober argues he was only required to answer his phone after hours,
but a maintenance technician who was on call would report to the Property. He
also argues Adams testified that maintenance foremen who are not on the on-
call rotation have physically had to respond to emergencies after hours only
three times during his 14 years with Management Support.1 The evidence
shows, though, that maintenance foremen are expected to report to the Property
after hours when necessary, even if they are not on the on-call rotation. For
example, Adams testified that the foreman who replaced Gober recently reported
to the Property after hours for an air conditioner problem. The evidence Gober



       1
          The record reflects that Adams testified about four specific instances where a
maintenance foreman who was not on-call had to physically report to a property (for a fire, a
sewer line back-up, a car driving into a building, and an air conditioner problem).
Additionally, Adams never stated he was providing an exhaustive list of every time a
maintenance foreman had to report to a property after hours. Adams testified that he had
physically reported to properties about a dozen times.

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has pointed to on appeal demonstrates that reporting to work after hours may
be somewhat infrequent, but it is, nonetheless, an essential function of this
position.
        Gober next argues that a reasonable accommodation would have enabled
him to fulfill his essential job functions.2 Specifically, Gober argues he was
available by phone, but he could not physically respond to emergencies. On
appeal, he argues Moore testified that Gober never told her he would not come
back to the Property after hours. This testimony, though, contradicts the
undisputed medical restriction that Gober could not work more than eight hours
per day. Gober also argues Management Support should have engaged in an
“interactive process” to determine an appropriate accommodation. Yet Gober
specifically told Management Support that being on call was “not acceptable.”
Task reassignment is not a reasonable accommodation if the task is an essential
function of the job. Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 710 (5th
Cir. 1997).
        Because we conclude that being on call and able to report in person to the
Property is an essential job function, Management Support was not required to
relieve Gober of this duty, modify the duty, or reassign other employees to the
duty.       See id.   Accordingly, we need not address Gober’s argument that
accommodating him would not have been an undue burden. Summary judgment
was appropriate as to Gober’s claims.
II.     Moore’s Claim
        To make out a prima facie claim for retaliation under the TCHRA, Moore
must show that (1) she “engaged in a protected activity”; (2) there was an


        2
          Management Support agreed to accommodate Gober’s lifting and air conditioner
installation restrictions. Management Support states it could not have accommodated Gober’s
restriction of not working in high temperatures, but because Gober did not list this restriction
in his new-hire paperwork, Management Support was unaware of the restriction when it fired
Gober.

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adverse employment action; and (3) there was a causal link “between the
protected activity and the adverse action.” Pineda v. United Parcel Serv., Inc.,
360 F.3d 483, 487 (5th Cir. 2004). A “protected activity” includes opposing
discriminatory practices. TEX. LAB. CODE § 21.055(1). If a plaintiff establishes
a prima facie case, “the burden then shifts to the defendant to demonstrate a
legitimate[,] nondiscriminatory purpose for the employment action.” Gee v.
Principi, 289 F.3d 342, 345 (5th Cir. 2002). If the employer meets this burden,
“the plaintiff must prove that the employer’s stated reason for the adverse action
was merely a pretext for the real, discriminatory purpose.” Id. We apply a “but
for” test, requiring the employee to prove that but for the protected activity she
would not have been discharged. Pineda, 360 F.3d at 487.
      Like the district court, we accept that Moore has made a prima facie case
of retaliation. Management Support, though, met its burden of providing a non-
retaliatory reason for why it fired Moore and why her firing was in close
proximity to her protected action. Moore has failed to meet her burden of
presenting evidence that would prove that but for the protected action she would
not have been fired. Id. Moore admitted making serious mistakes regarding
Gober’s application, which is a legitimate non-retaliatory justification for her
firing. Moore was responsible for intake of Gober’s new hire documents and
admitted she made errors in reviewing it and “missed key points.” She was fired
just one business day after her mistakes were brought to Frankel’s attention.
      Moore challenges the district court’s conclusion that she did not present
evidence to rebut Management Support’s claim that she was fired because of her
mishandling of Gober’s application. Moore points out she was fired after she told
Adams that firing Gober was based on his disability and was “not right.” The
district court found no evidence that Frankel, the sole decision maker, knew
anything other than that Moore was upset about Gober’s firing. Both Frankel
and Adams testified that Frankel was aware only that Moore was “upset” about

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Gober’s firing. On appeal, Moore states that if her firing was not in retaliation,
she would have been fired on Friday, July 9, 2010, when the problems with
Gober’s application were identified, instead of on Monday, July 12, after Adams
spoke with Frankel about Moore’s reaction to Gober’s firing. Moore argues this
time line raises a dispute as to the reason for her firing. Even though suspicious
timing can be evidence of pretext, it is sufficient to survive summary judgment
only when combined “with other significant evidence of pretext.” Shackelford v.
Deloitte & Touche, LLP, 190 F.3d 398, 409 (5th Cir. 1999). Once the employer
offers a legitimate, non-discriminatory reason that explains the timing and the
reason for the adverse action, the plaintiff must offer some evidence from which
the jury can infer retaliation was the real motive. Id.
      Moore makes other arguments: (1) Adams and Boyd approved of Gober’s
hiring but were not reprimanded; (2) Moore had an “exemplary career” with
Management Support; (3) Management Support did not follow its normal
procedure when firing her; and (4) Adams testified he did not know of another
instance in which an apartment manager at Management Support was fired for
improperly hiring an employee. Such evidence is relevant to whether there is
a causal link between the protected activity and the employment decision.
Schroeder v. Greater New Orleans Fed. Credit Union, 664 F.3d 1016, 1024 (5th
Cir. 2011). None of these arguments, though, refutes our dispositive finding that
Frankel did not know anything other than that Moore was upset. If Frankel,
who decided to fire Moore, was unaware of her protected activity, this evidence
does not support that she would not have been fired in the absence of having
engaged in protected activity.
      AFFIRMED.




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