Holtzclaw v. DSC Communications

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
m 00-40966
________________
STEVEN R. HOLTZCLAW,
Plaintiff-Appellant,
VERSUS
DSC COMMUNICATIONS CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Eastern District of Texas
________________________
July 6, 2001
Before SMITH, DUHÉ, and WIENER,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Steven Holtzclaw appeals a summary judg-
ment in his suit against DSC Communications
Corporation (“DSC”) asserting claims under
the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12112(a), the Employee Retire-
ment Income Security Act of 1974 (“ERISA”),
29 U.S.C. § 1140, and the Age Discrimination
in Employment Act (“ADEA”), 29 U.S.C.
§ 623(d). Because Holtzclaw is not physically
able to do the job that he sought, either with
or without accommodation, he fails to
establish a prima facie case for any of his
claims; accordingly, we affirm.

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I.
Holtzclaw began working for DSC in 1984.
Ten years later, he was hospitalized for chron-
ic idiopathic pancreatitis but returned to work
soon after his hospitalization. In April 1995,
the severity of his pancreatitis forced him to
take short-term disability leave. In December
1995, DSC’s long-term disability (“LTD”)
carrier determined that Holtzclaw qualified for
LTD benefits, based on his unequivocal state-
ments that he was “unable to work at all,” that
he would never be able to return to work, and
that his condition could not reasonably be ac-
commodated by an employer. After making
similar unequivocal statements to the Social
Security Administration (“SSA”), Holtzclaw
secured social security disability insurance.
In August 1996, Holtzclaw reapplied for a
job at DSC. In September, the director of hu-
man resources informed him that DSC would
not hire him because of low ratings on several
1993 and 1994 performance reviews. In Oc-
tober, Holtzclaw verified to DSC’s LTD in-
surer that he had been completely and continu-
ously unable to work for the previous twenty-
four months, a period that included the time
during which he was re-applying for a job at
DSC.
In May 1997, Holtzclaw filed this suit,
claiming that DSC had discriminated against
him under the ADA, had interfered with his re-
ceipt of benefits under ERISA, and had retal-
iated against him under the ADEA. DSC
moved for summary judgment on all of the
claims, and Holtzclaw responded with a cross-
motion for summary judgment on the ADA
and ERISA discrimination claims. The court
granted DSC’s motion for summary judgment
and denied Holtzclaw’s.
While Holtzclaw’s appeal was pending, the
Supreme Court decided Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795 (1999), which
rejected this circuit’s application of judicial es-
toppel to an ADA accommodation case in
which a plaintiff previously had claimed full
disability. We therefore remanded Holtzclaw’s
case to the district court with instructions to
reconsider his claims in light of Cleveland. On
remand, the district court again granted
summary judgment for DSC.
II.
We review a summary judgment de novo,
applying the same standard as did the district
court. D.E.W., Inc. v. Local 93, Laborers’
Int’l Union, 957 F.2d 196 (5th Cir. 1992).
Summary judgment is appropriate only where
there is no genuine issue of material fact. FED.
R. CIV. P. 56(c). If the evidence is such that a
reasonable jury could return a verdict for the
non-moving party, there is a genuine issue of
material fact. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249 (1986). Therefore, if the
nonmovant fails to establish facts in support of
an essential element of his prima facie claim,
summary judgment is appropriate. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). We may affirm a summary judgment
on any ground supported by the record, even
if it is different from that relied on by the
district court. Tex. Refrig. Supply, Inc. v.
FDIC, 953 F.2d 975, 980 (5th Cir. 1992).
III.
To present a prima facie case of discrim-
ination under the ADA, Holtzclaw must show
that “[he] is a qualified individual with a dis-
ability, and that the negative employment ac-
tion occurred because of the disability.” Sher-
rod v. Am. Airlines, Inc., 132 F.3d 1112, 1119
(5th Cir. 1998). A “qualified individual with a
disability” is defined in the ADA as someone

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who has a disability but 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); accord Giles v. Gen. Elec.
Co., 245 F.3d 474, 483 (5th Cir. 2001).
The summary judgment evidence indicated
that Holtzclaw could not perform the essential
functions of the position he sought. In state-
ments to DSC’s LTD insurer and to the SSA,
Holtzclaw asserted the seriousness and long-
term effects of his pancreatitis. He certified to
the SSA that his conditions and medications
“play havoc on [his] thinking and memory
skills,” “make it impossible to have a clear and
normal mind,” and “keep [him] from being
able to think and concentrate.” Holtzclaw also
told the SSA that his “mental and physical
abilities ha[d] decreased to a level where [he
is] no longer self-supportive” and that he is
simply “unable to function in the real world”
from two to three days per week.
Furthermore, Holtzclaw related to DSC’s
LTD insurer that returning to work or com-
mencing vocational rehabilitation was “not
possible,” that he could perform none of the
duties of his former occupation, that it was
“not possible to work” even with any form of
accommodation, that he was “too sick” to
consider any form of retraining, that he was
“unable to work at all,” and that he was “doing
good [sic] to be alive.” Holtzclaw also certi-
fied to the LTD insurer that he never expects
to return to work and that his “illness is chron-
ic and will never go away.”
Even after he reapplied to DSC, stating that
he was capable of performing all essential
functions of the job, Holtzclaw nevertheless
told DSC’s LTD insurer that he was “totally
disabled” from performing his own or any oth-
er job and indicated that neither rehabilitation
services, job modification, nor vocational
retraining would allow him to return to work.
This reaffirmation of his disability for purposes
of receiving LTD benefits included a verifica-
tion that he had been continuously incapaci-
tated from June 1996 through September
1996SSthe time period during which he reap-
plied for a job at DSC.
An ADA plaintiff who, in an application for
disability benefits, asserts that he is unable to
work must produce “an explanation of this
apparent inconsistency” that is “sufficient” to
defeat summary judgment on the issue of
whether the plaintiff is a qualified individual
with a disability. Cleveland, 526 U.S. at 807.
Holtzclaw offers no explanation for the incon-
sistency between his sworn testimony in ap-
plying for LTD and SSA and his claim to DSC
that he is a qualified individual with a disability
who can perform the essential functions of the
job. In fact, the only evidence he uses to
support his contention that he was able to
return to work is his belief that he was “physi-
cally able to return to work as of August
1996.” In Cleveland, however, the Court held
that a plaintiff “cannot create a genuine issue
of fact sufficient to survive summary judgment
simply by contradicting his or her own
previous sworn statement.” Id. at 806.
In an effort to prove his status as a qualified
individual with a disability, Holtzclaw pre-
sented a medical release form signed by his
doctor that states merely that he is able to re-
turn to work. The letter was based solely on
Holtzclaw’s assertion that he felt well enough
to return to work: The doctor conducted no
evaluation before writing the letter. The re-
lease thus is not probative evidence of Holtz-
claw’s ability to work.

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Holtzclaw claims, too, that because none of
his interviewers at DSC expressed a belief that
he was too disabled to do the job, a reasonable
jury could find him physically able to do it.
This argument is without merit, because the
purpose of the job interviews was to explore
Holtzclaw’s technical skills and experience,
not to determine whether he was medically
able to meet the demands of day-to-day
employment.
Cleveland teaches that a plaintiff cannot
change his story during litigation without a
sufficient explanation for his inconsistent as-
sertions. Holtzclaw has offered no sufficient
explanation for the contradiction between his
disability applications and his claim that, when
he re-applied for the job, he could have
worked even without reasonable
accommodation. He therefore has failed to
create a material issue of fact whether he is
qualified for the position he sought. Because
he cannot establish that element of his prima
facie claim, summary judgment was
appropriate on the ADA claim.1
IV.
To establish a prima facie retaliation claim
under the ADEA, Holtzclaw must show
(1) that he engaged in a protected activity,
(2) that there was an adverse employment
action, and (3) that a causal link existed
between the protected activity and the adverse
employment action. Sherrod, 132 F.3d at
1112 n.8. Holtzclaw argues that his claim
should have survived summary judgment, even
though he cannot perform the job at DSC,
because qualification for the job is not a prima
facie element of an ADEA retaliation claim.
Instead, he urges that if the employer acted for
a discriminatory reason, then even if he was
not qualified for the job, he should still recover
on his ADEA retaliation claim.
1 Holtzclaw also claims that DSC’s rehiring
policy is facially discriminatory under the ADA.
The policy states in pertinent part:
If an employee is released to return to
work from a period of LTD incapacity,
within six (6) months of termination from
the company for inability to work due to
total disability, the employee may apply for
a position with the company. If a position is
available and the employee is returned to
work within this six (6) month period, all
benefits will be restored to the employee,
and the employee’s service credit will con-
tinue as if there was no break in service.
Holtzclaw’s reading of the policy assumes that if a
former employee, such as Holtzclaw, has been on
LTD for more than six months, he is not allowed to
reapply for a position at DSC.
The above-quoted provision merely distin-
guishes between (1) employees who are rehired
within six months of being released to return to
work from LTD status and (2) those who are so
released but are not rehired within six months.
Nothing in the provision prohibits an employee
who is released to return to work, or who is re-
hired, more than six months after his original ter-
mination for LTD from re-applying for employ-
ment or from being rehired; the distinction is that
such employee is treated as a new hire for purposes
of employee benefits.
Holtzclaw’s argument also is unsupported by
the record, in light of the fact that he was invited to
reapply for a position, was interviewed, and was
considered for re-employment nine months after he
went on LTD. Because of this fact and of the fact
that he did not meet the requirements to be a
“qualified individual” under the ADA, his
argument has no merit.

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We have never expressly made qualification
a prima facie element of an ADEA retaliation
claim, but today we decide that such an
element is necessary. Retaliation claims are
nothing more than a protection against
discrimination in that the employee against
whom the employer has retaliated suffers dis-
crimination based on the employee’s exercise
of a right to charge, testify, assist, or par-
ticipate in a protected activity under the
ADEA. See 29 U.S.C. § 623(d).
Because, in regard to other types of
discrimination claims, including other ADEA
claims, we consistently have required that a
plaintiff be qualified for the job he seeks,2 it
would be illogical not to require one here. A
contrary holding would be inconsistent with
the observation that “‘Congress did not intend
. . . to guarantee a job to a person regardless
of qualifications. In short, [title VII] does not
command that any person be hired simply
because he was formerly the subject of dis-
crimination.’” McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 800(1973). As the dis-
trict court noted:
[T]o analyze this issue in any other man-
ner would lead to illogical and in-
consistent results. For example: a plain-
tiff’s discrimination suit could be
dismissed because he was unqualified
for the position applied for, even though
there was some direct evidence of age
discrimination on the part of the
employer. However, under the same
facts, the plaintiff could survive
summary judgment if his complaint were
that he was discriminated against
because he complained of age
discrimination. This is much like our
present case where Plaintiff will have his
ADA and ERISA claims dismissed
because he is, as a matter of law, not
qualified for the position applied for, yet
has the possibility of surviving summary
judgment on his ADEA retaliation claim
based on his being refused the same job
the Court has found he is not qualified
to hold. This is illogical, and cuts
against the intent of these statutes.
We therefore conclude that qualification for
the job is an element of a prima facie claim of
ADEA retaliation. Accordingly, summary
judgment is proper on Holtzclaw’s claim of
ADEA retaliation.
V.
To establish a prima facie case of
discrimination under ERISA, a plaintiff must
establish that his employer fired him in
retaliation for exercising an ERISA right or to
prevent attainment of benefits to which he
would have become entitled under an
employee benefit plan. Rogers v. Int’l Marine
Terminals, Inc., 87 F.3d 755, 761 (5th Cir.
1996); Hines v. Mass. Mut. Life Ins. Co., 43
F.3d 207, 209 (5th Cir. 1995). The plaintiff
need not prove that the discriminatory reason
was the only reason for discharge, but he must
show that the loss of benefits was more than
an incidental loss from his discharge. Stafford
v. True Temper Sports, 123 F.3d 291, 295 (5th
Cir. 1997) (per curiam). This inference of
discrimination can be proven by circumstantial
evidence. Id.
Although we have not so held, district
2 See, e.g., Price v. Marathon Cheese Corp.,
119 F.3d 330, 336 (5th Cir. 1997) (holding that a
plaintiff must be qualified for the job in question to
establish a prima facie case of discrimination
under the ADEA.

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courts in this circuit have required a plaintiff,
to succeed on an ERISA claim, to show that
he is qualified for the position he seeks. See,
e.g., Smith v. Gencorp, Inc., 971 F. Supp.
1071, 1075 (N.D. Miss. 1997). So, too, a ma-
jority of the circuits have determined that qual-
ification for the job is an element of a prima
facie ERISA claim.3
We now join our sister circuits in deciding
that qualification for the position sought is an
element of a prima facie ERISA claim. This
reinforces our caselaw under title VII and the
ADA, neither of which statutes contains qual-
ification as an element, but for both of which
our jurisprudence requires a showing of
qualification as part of a prima facie case.4
As we have discussed supra, it is illogical
to allow one alleging discrimination under any
employment discrimination statute to proceed
with his suit if he is not qualified for the job he
seeks. Failing to require job qualification as an
element of the prima facie case would belie
the purpose of such statutes: to allow those
who are qualified for jobs to seek remedies for
prohibited acts of discrimination. Employment
discrimination statutes do not prohibit
discrimination in a vacuum, but only in the
concrete context of a specific job or job
category.5
Because Holtzclaw has not shown that he is
qualified for the position he seeks, either with
or without accommodation, he can pursue his
ERISA claim no further. Holtzclaw argues
that being “qualified with a disability” under
the ADA is different from being “qualified”
under ERISA and that because he has the
expertise necessary to perform the job, he is
“qualified” for purposes of an ERISA claim.
This argument is meritless: Holtzclaw has
stated plainly that, because of his condition, he
cannot do the job, even with accommodation.
Because of this, no employer would consider
him “qualified,” and neither can we. Thus,
summary judgment was proper on the ERISA
claim.
AFFIRMED.
3 See, e.g., Clark v. Coats & Clark, Inc., 990
F.2d 1217, 1223 (11th Cir. 1993); Henson v. Lig-
gett Group, Inc., 61 F.3d 270, 277 (4th Cir. 1995);
Lehman v. Prudential Ins. Co. of Am., 74 F.3d
323, 330 (1st Cir. 1996); McNemar v. Disney
Store, Inc., 91 F.3d 610, 621 (3d Cir. 1996); Salus
v. GTE Directories Serv. Corp., 104 F.3d 131,
135 (7th Cir. 1997); Dister v. Cont’l Group, Inc.,
859 F.2d 1108, 1114-15 (2d Cir. 1998).
4 See, e.g., Urbano v. Cont’l Airlines, Inc., 138
F.3d 204, 206 (5th Cir. 1998) (title VII); Hamilton
v. Southwestern Bell Tel. Co., 136 F.3d 1047,
1050 (5th Cir. 1998) (ADA).
5 Cf. Palsgraf v. Long Island R.R., 162 N.E.
99, 99 (N.Y. 1928) (“‘Proof of negligence in the
air, so to speak, will not do.’”) (citation omitted).

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