Janis A. Stalcup v. Communication Workers of America, Local 6203

* District Judge of the Southern District of Texas,
sitting by designation.
** 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-11280
_____________________
JANIS A. STALCUP
Plaintiff - Appellant
v.
COMMUNICATION WORKERS OF AMERICA, LOCAL 6203
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(5:00-CV-221)
_________________________________________________________________
June 13, 2002
Before KING, Chief Judge, PARKER, Circuit Judge, and ELLISON,
District Judge.*
PER CURIAM:**
In federal district court, Plaintiff-Appellant Janis A.
Stalcup asserted a claim of disability discrimination pursuant to

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the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et
seq. (1994). Stalcup appeals from the district court’s grant of
summary judgment in favor of Defendant-Appellee the Communication
Workers of America. For the following reasons, we AFFIRM the
judgment of the district court.
I. Factual and Procedural History
Janis A. Stalcup began her employment with Southwestern Bell
Telephone Company (“SWB”) in July 1977. During her employment
with SWB, Stalcup was a member of the Communication Workers of
America (“CWA”), the collective bargaining representative for SWB
employees. Over the course of her employment, Stalcup suffered
from a condition known as Multiple Chemical Sensitivity.
According to Stalcup, this condition led to chronic sinusitis,
upper respiratory infections, sinus headaches, migraines,
seizures, difficulty sleeping, chronic diarrhea, and colon
spasms. These medical problems caused Stalcup to be absent from
work on many occasions. On July 9, 1993, Stalcup was terminated
from her job as a supplies attendant because of unsatisfactory
attendance.
Stalcup alleges that her attendance problems and eventual
termination were caused, at least in part, by CWA’s
discriminatory behavior. Specifically, Stalcup asserts that CWA
engaged in discrimination prohibited by the Americans with
Disabilities Act of 1990 (the “ADA”) by refusing to file, appeal,

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1 Stalcup sued SWB in a separate lawsuit filed in
September 1995. That suit eventually settled. A third-party
complaint filed in this case by CWA against SWB was voluntarily
dismissed on March 26, 2001.
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or arbitrate Stalcup’s grievances claiming disability
discrimination, by refusing to secure favorable accommodations
for Stalcup under the ADA, and by failing to discipline CWA
members regarding discriminatory acts against Stalcup. Stalcup
filed charges of disability discrimination with the Equal
Employment Opportunity Commission (the “EEOC”) against both SWB
and CWA. Stalcup received a letter from the EEOC, dated April 7,
2000, informing her of her right to sue CWA. Stalcup filed suit
against CWA in federal district court on July 7, 2000.1 CWA
moved for summary judgment on April 16, 2001, and the district
court granted summary judgment in favor of CWA on September 4,
2001. The district court concluded that Stalcup failed to
demonstrate that she is a “qualified individual with a
disability” under the ADA and, in the alternative, failed to
establish a prima facie case of disability discrimination by CWA.
Stalcup timely appealed to this court.
II. Summary Judgment Standard of Review
We review a grant of summary judgment de novo, applying the
same standards as the district court. Chaney v. New Orleans Pub.
Facility Mgmt., Inc., 179 F.3d 164, 167 (5th Cir. 1999). Summary
judgment is proper when “there is no genuine issue as to any
material fact and [] the moving party is entitled to a judgment

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as a matter of law.” FED. R. CIV. P. 56(c). We view the evidence
in a light most favorable to the non-movant. Coleman v. Houston
Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997). However,
if the moving party presents sufficient evidence to support
summary judgment, the non-movant must go beyond the pleadings and
come forward with specific facts indicating a genuine issue for
trial in order to avoid summary judgment. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986).
III. Stalcup’s ADA Claim Against CWA
The ADA prohibits discrimination by a “covered entity”
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 “covered
entity” includes a “labor organization.” Id. at § 12111(2). The
parties do not dispute that the expansive discrimination claims
alleged by Stalcup fall within the purview of the ADA because
they relate to “job application procedures, the hiring,
advancement, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges of
employment.” In response to Stalcup’s claims, CWA argues that
the district court was correct in concluding: (1) that Stalcup is
not a “qualified individual with a disability” under the ADA and

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2 Title VII provides that it is unlawful for an employer:
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his
compensation, terms, conditions, or
privileges of employment, because of such
individual’s race, color, religion, sex, or
national origin; or
(2) to limit, segregate, or classify his
employees or applicants for employment in any
way which would deprive or tend to deprive
any individual of employment opportunities or
otherwise adversely affect his status as an
employee, because of such individual's race,
color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a) (1994).
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(2) that, even if Stalcup is a “qualified individual with a
disability,” she fails to establish a prima facie case of
disability discrimination.
A. Elements of a Prima Facie Case of Discrimination by a
Union
Neither this court nor any of our sister courts of appeals
has specified the elements of a prima facie case for
discrimination by a union in the context of the ADA. However, we
have previously recognized that Title VII of the Civil Rights Act
of 1964 (“Title VII”) and the ADA are similar in their language,
purposes, and remedial structures.2 Flowers v. S. Reg’l
Physician Servs. Inc., 247 F.3d 229, 234 (5th Cir. 2001).
Because of this similarity, we regularly borrow from Title VII
jurisprudence when analyzing ADA claims. See, e.g., id. at 234-
35; Miller v. Pub. Storage Mgmt., Inc., 121 F.3d 215, 218 (5th
Cir. 1997); Buchanan v. City of San Antonio, 85 F.3d 196, 200

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(5th Cir. 1996); Daigle v. Liberty Life Ins. Co., 70 F.3d 394,
396 (5th Cir. 1995). Thus, we now turn to Title VII
jurisprudence for assistance in determining the elements of
Stalcup’s prima facie case.
The Seventh Circuit, in Bugg v. International Union of
Allied Industrial Workers of America, Local 507, 674 F.2d 595
(7th Cir. 1982), first articulated the elements of a prima facie
case of discrimination by a union. Under Bugg, a plaintiff
establishes a prima facie case against a union by showing: “(1)
that the [employer] committed a violation of the collective
bargaining agreement with respect to the plaintiff; (2) that the
[union] permitted that breach to go unrepaired, thus breaching
its own duty of fair representation; and (3) that there was some
indication that the [union’s] actions were motivated by racial
animus.” Id. at 598 n.5. In analyzing Stalcup’s prima facie
case of discrimination, the district court in this case applied
the Bugg elements.
Stalcup argues that, instead of analyzing her prima facie
case under the Bugg elements, the district court should have
looked for guidance from the Supreme Court’s opinion in Goodman
v. Lukens Steel Co., 482 U.S. 656 (1987). In Goodman, African-
American employees asserted racial discrimination claims under
Title VII against their union. Id. at 658-59. The employees
argued that the union discriminated against them by repeatedly
failing to include assertions of racial discrimination in

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grievances filed with their employer. Id. at 666. The Court
concluded that “[a] union which intentionally avoids asserting
discrimination claims, either so as not to antagonize the
employer and thus improve its chances of success on other issues,
or in deference to the perceived desires of its white membership,
is liable under [Title VII].” Id. at 669 (internal citations and
quotations omitted). In coming to this conclusion, the Court
noted that the employees’ claims of disparate treatment required
a showing of intentional discrimination. Id. at 668-69.
Stalcup argues that her case is factually analogous to
Goodman because CWA intentionally avoided asserting her
grievances just as the union in Goodman refused to assert the
grievances of its African American members. Stalcup further
argues that a showing of intentional discrimination is sufficient
under Goodman to establish CWA’s ADA violation. Stalcup
maintains that she is not required to show a breach of the
collective bargaining agreement, a breach of the duty of fair
representation, or animus in order to establish a prima facie
case of discrimination against CWA. For purposes of this appeal
only, we assume that Stalcup is correct. We assume that Stalcup
can establish an ADA violation with evidence of intentional
discrimination and that she need not establish a breach of the

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3 In Vaca v. Sipes, 386 U.S. 171 (1967), the Supreme Court
established the parameters of the duty of fair representation.
The Court explained that a breach of the duty of fair
representation “occurs only when a union’s conduct toward a
member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith.” Id. at 190. Given this
definition of a breach of the duty of fair representation, there
is not much difference between the Bugg and Goodman standards.
Once a Title VII plaintiff establishes intentional discrimination
by a union – either with direct evidence or by using the burden-
shifting framework of McDonnell Douglas – the plaintiff also
inherently establishes a breach of the union’s duty of fair
representation. See Causey v. Ford Motor Co., 516 F.2d 416, 425
n.12 (5th Cir. 1975) (observing that “[t]he fair representation
duty under the [Labor Management Relations Act], as enumerated in
Vaca, overlaps with the Title VII protection, and the Vaca
standards (proscribing arbitrary, discriminatory, and bad faith
conduct) apply in Title VII cases.”) (internal citations and
quotations omitted). Thus, the real effect of our assumption in
this case is to excuse Stalcup from establishing a breach of the
collective bargaining agreement and animus.
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collective bargaining agreement, a breach of the duty of fair
representation, or animus.3
In order to establish intentional discrimination, Stalcup
may produce direct evidence of discrimination or may utilize the
framework established by McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), to raise an inference of discrimination.
Daigle, 70 F.3d at 396. In the ADA context, under the McDonnell
Douglas framework, when asserting an ADA claim against an
employer, a plaintiff can establish a prima facie case of
discrimination by showing that: (1) she suffers from a
disability; (2) she is qualified for the job; (3) she was subject
to an adverse employment action; and (4) she was treated less
favorably than non-disabled employees. Id. It is well-

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4 The second Daigle element, whether the plaintiff is
qualified for the job, is irrelevant in this case because Stalcup
is asserting discrimination in the context of the grievance
process. Stalcup is entitled to a non-discriminatory grievance
process regardless of her job qualifications. However, it is
certainly conceivable that some claims of union discrimination
would require a showing of job qualification to establish a prima
facie case. For example, a prima facie case of discrimination by
a union based on the union’s failure to recommend the plaintiff
for a promotion might require a showing that the plaintiff is
qualified for the promotion.
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established that prima facie elements are not set in stone but,
rather, can be formulated to fit the circumstances of a
particular case. McDonnell Douglas, 411 U.S. at 802 n.13; see
also LaPierre v. Benson Nissan, Inc., 86 F.3d 444, 448 n.3 (5th
Cir. 1996) (noting that “[t]he elements of a plaintiff’s prima
facie case necessarily vary according to the facts of the case
and the nature of the claim”). The prima facie elements of an
ADA claim, as outlined by this court in Daigle, can be easily
manipulated to fit the contours of Stalcup’s discrimination claim
against CWA. Therefore, even assuming that Stalcup is not
required to establish a breach of the collective bargaining
agreement, a breach of the duty of fair representation, or animus
to prevail, Stalcup must still establish that: (1) she suffers
from a disability; (2) she was subject to an adverse union
action; and (3) she was treated less favorably than non-disabled
employees.4 See Alexander v. Local 496, Laborers’ Int’l Union of
N. Am., 177 F.3d 394, 402-03 (6th Cir. 1999) (requiring the

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plaintiff to demonstrate similar elements in order to establish a
prima facie case of discrimination by a union).
B. Did Stalcup Establish a Prima Facie Case of
Discrimination by CWA?
Accepting arguendo that Stalcup is disabled, we nevertheless
conclude that Stalcup did not establish a prima facie case of
discrimination by CWA because Stalcup has not established by a
preponderance of the evidence that CWA treated her less favorably
than non-disabled employees. Stalcup’s evidence shows that CWA
did not fully pursue all of Stalcup’s complaints. Although CWA
pursued some of Stalcup’s complaints with formal grievances, CWA
addressed other complaints with informal grievances or informal
meetings with SWB management. Viewing the evidence in a light
most favorable to Stalcup, CWA apparently decided not to pursue
with SWB some of Stalcup’s complaints at all. However, nothing
in the record suggests that CWA’s handling of Stalcup’s
complaints was different than its handling of complaints from
non-disabled employees.
In Vaca, the Court emphasized the importance of a union’s
power “to settle the majority of grievances short of the costlier
and more time-consuming steps” of the grievance process. 386
U.S. at 192. The evidence in the record shows that CWA addressed
each of Stalcup’s documented complaints in some manner, even if
it ultimately decided not to submit each one to the higher steps
of the grievance process or to arbitration. In answer to

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Stalcup’s many complaints, CWA successfully prompted SWB to
implement a number of workplace accommodations which eased
Stalcup’s discomfort. For example, SWB designated a smoke-free,
fragrance-free vehicle for Stalcup’s use, installed a ventilation
system in the smoking lounge, moved the employee refrigerator out
of the smoking lounge, and prohibited employees from bringing
non-necessary fragrance sources into the workplace. At Stalcup’s
request, CWA also discussed with management SWB’s by-passing of
Stalcup for the position of Operator, a position for which
Stalcup was qualified and was the senior applicant. CWA secured
SWB’s agreement to offer the position to Stalcup, who
subsequently refused to accept the position.
Furthermore, CWA filed formal grievances regarding Stalcup’s
final suspension and termination from SWB. CWA processed those
grievances through all the steps of the grievance process,
arguing at each step that SWB had acted too harshly in
terminating Stalcup. In the grievance meetings, CWA urged SWB to
provide Stalcup with the remedies she sought, including
reinstatement after termination, correction of her attendance
records, improved indoor air quality, unlimited access to
restrooms, a transfer to another department, and a compensatory
lump sum settlement or disability pension. No evidence in the
record suggests that CWA exerts greater efforts for non-disabled
employees than it did for Stalcup. Stalcup’s subjective belief
of discrimination is not sufficient to warrant judicial relief.

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Bauer v. Albemarle Corp., 169 F.3d 962, 967 (5th Cir. 1999).
Thus, we conclude that Stalcup fails to demonstrate by a
preponderance of the evidence that CWA treated her less favorably
than non-disabled employees. Because Stalcup’s prima facie case
of disability discrimination fails on this ground, we need not
consider whether Stalcup has demonstrated the other elements of a
prima facie case of discrimination by a union.
IV. Conclusion
For the foregoing reasons, we find that the district court
properly granted summary judgment for CWA. The district court
correctly concluded that Stalcup has failed to establish her
prima facie case of disability discrimination. Accordingly, we
AFFIRM the district court’s judgment in favor of CWA.

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