Vitale v. Georgia Gulf Corp

United States Court of Appeals
Fifth Circuit
F I L E D
December 10, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-31195
Summary Calendar
_______________
PETER VITALE,
Plaintiff-Appellant,
VERSUS
GEORGIA GULF CORPORATION,
Defendant-Appellee.
* * * * * * * * * * * * * * *
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m 02-31264
Summary Calendar
_______________
PETER VITALE,
Plaintiff-Appellee,
VERSUS
GEORGIA GULF CORPORATION,
Defendant-Appellant.

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_________________________
Appeals from the United States District Court
for the Middle District of Louisiana
m 00-858-D
_________________________
Before SMITH, DEMOSS, and STEWART,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Peter Vitale sued Georgia Gulf Corporation
(“Georgia Gulf”) under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq. He appeals a FED. R. CIV. P. 50 judg-
ment as a matter of law (“j.m.l.”). Georgia
Gulf appeals the denial of attorney’s fees.
Finding no error, we affirm.
I.
Georgia Gulf employed Vitale in a variety
of capacities.1 While working as a pipefitter’s
helper, Vitale injured his back. Because a neu-
rosurgeon then limited the kind of work Vitale
could perform,2 Vitale could not return to his
original position.3 After leaving Georgia Gulf,
he sued.4 At the conclusion of the jury trial,
Georgia Gulf successfully moved for j.m.l.,
then unsuccessfully sought attorney’s fees pur-
suant to 42 U.S.C. § 12205.
II.
We review a j.m.l. de novo. Delano-Pyle v.
Victoria County, 302 F.3d 567, 572 (5th Cir.
2002), cert. denied, 124 S. Ct. 47 (2003). We
review all the evidence and “must draw all rea-
sonable inferences in favor of the nonmoving
party.” Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 149 (2000). “[A]
court may not render [j.m.l.] unless a party has
been fully heard on an issue and there is no le-
gally sufficient evidentiary basis for a
reasonable jury to find for that party on that
issue.” Fitzgerald v. Weasler Eng’g, Inc., 258
F.3d 326, 337 (5th Cir.), amended, 274 F.3d
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 Vitale worked as a maintenance technician, in-
volving a number of duties, including fire-watch-
ing, hold-watching, and pipe-fitting.
2 The neurosurgeon stated Vitale cannot lift
“over 10 pounds frequently or 20 pounds occa-
sionally. He may not sit or stand over one hour
without breaks. He may not stoop, crawl, climb
ladders, or perform overhead work[.] All these
(continued...)
2(...continued)
restrictions are permanent . . . because of the
degenerative condition of his lumbar spine.”
3 Georgia Gulf maintains that Vitale’s doctors
never released him to work for it. Vitale contends
that he pursued “light duty” positions but was re-
peatedly told that none was available. Adopting ei-
ther contention does not affect this appeal.
4 Vitale also sued under the Louisiana equiv-
alent of the ADA, LA. R.S. 23:303. Neither party
discusses the state claims to any significant extent,
however.

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881 (5th Cir. 2001).
The ADA, 42 U.S.C. § 12112(a), forbids
covered employers from discriminating
“against a qualified individual with a disability
because of the disability of such individual,”
with regard to, among other things, “terms,
conditions, and privileges of employment.” As
one of the “essential elements” of his claim,
Vitale must prove that he “was a qualified per-
son with a disability” at the time of the alleged
discrimination, Rizzo v. Children’s World
Learning Ctrs., Inc., 213 F.3d 209, 212 (5th
Cir. 2000),5 which means a person 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). A
“reasonable accommodation” includes “job re-
structuring, part-time or modified work
schedules, reassignment to a vacant position,”
and general concessions involving training and
facilities. 42 U.S.C. § 12111(9).
Vitale failed to produce evidence from
which a reasonable jury could find that he was
a qualified individual with a disability. Based
on the testimony of his doctor and as admitted
in Vitale’s own brief, he could not continue,
with his limitations on lifting and movement,
working in his prior position. Thus, to satisfy
the “qualified individual” requirement, Vitale
needed to produce evidence of a reasonable
accommodation, as defined in § 12111(9), that
Georgia Gulf could have provided.
Vitale largely points to Georgia Gulf
employees who testified that he could have
filled other, less-demanding posts6 and that
Georgia Gulf had moved individuals with
similar disabilities into such posts. Vitale,
however, produced no evidence that Georgia
Gulf needed to fill a vacant position that would
have accommodated his restrictions. “For the
accommodation . . . to be reasonable, it is clear
that a position must first exist and be vacant.
Under the ADA, an employer is not
required to give what it does not have.”
Foreman v. Babcock & Wilcox, 117 F.3d 800,
810 (5th Cir. 1997). Vitale does not contest
the fact that Georgia Gulf did not need to fill
a vacant light duty post. Again, he merely
asserts that Georgia Gulf’s assignments of
injured individuals to temporary light duty
positions indicates that he should receive a
light duty assignment of indefinite duration.7
5 See also Daugherty v. City of El Paso, 56
F.3d 695 (5th Cir. 1995) (The ADA “prohibits em-
ployment discrimination against qualified individ-
uals with disabilities, no more and no less.”).
6 Georgia Gulf’s Human Resources Supervisor
indicated that Vitale could have filled the fire
watch position or positions involving the moni-
toring and checking for leaks in the pipes.
7 Vitale’s sole authority in support of his con-
tention that “the creation of such a position to ac-
commodate similarly situated employees is proof
that such a position did . . . exist” does not support
his case at all. See Burch v. City of Nacogdoches,
174 F.3d 615, 621 n.11 (5th Cir. 1999) (“Had
[plaintiff] shown that the City treated him dif-
ferently from others similarly situated by not re-
assigning him under identical conditions, his posi-
tion on appeal would have been much stronger”
(emphasis added)). Reassignment is not equivalent
to creating a new position. One district court in
this circuit has held that accommodations to some
employees do not require similar accommodations
to all similarly-situated employees. Wilburn v.
Lucent Techs., Inc., 2000 U.S. Dist. LEXIS
17520, at *14 (N.D. Tex. 2000) (stating that
“creating a light-duty position . . . is not a
‘reasonable’ [accommodation]”).

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Without evidence to show that he either
could have performed his previous job or
could have filled a vacant opening, Vitale is
not a qualified individual with a disability, so a
reasonable jury could not conclude that Geor-
gia Gulf discriminated in violation of the ADA.
Therefore, the district court did not err in
granting the rule 50 motion.
III.
Because it obtained a j.m.l., Georgia Gulf
asserts it is entitled to attorney’s fees.8 We re-
view a ruling on attorney’s fees for abuse of
discretion. No Barriers, Inc. v. Brinker
Chili’s Tex., Inc., 262 F.3d 496, 498 (5th Cir.
2001). The ADA fee-shifting provision has
language similar to that of title VII and 42
U.S.C. § 1988. Consequently, the doctrines
from these two provisions apply to the case at
hand. No Barriers, 262 F.3d at 498.
Although Georgia Gulf effectively cites pre-
cedent regarding the circumstances in which a
court may9 award attorney’s fees, it does not
provide examples of when a court must award
fees to prevailing defendants. In contrast to
prevailing plaintiffs in civil rights actions, who
“should ordinarily recover an attorney’s fee
unless special circumstances would render
such an award unjust,” Newman v. Piggie
Park Enters., Inc., 390 U.S. 400 (1968), pre-
vailing defendants may receive fees under the
Christiansburg standard.
Although Vitale did not succeed on his
ADA claim, the district court did not abuse its
“sound discretion” in denying attorney’s fees.
EEOC v. Tarrant Distribs., Inc., 750 F.2d
1249, 1250 (5th Cir. 1984) (citing Christians-
burg). Although Georgia Gulf’s assignments
of injured employees to light duty positions do
not excuse Vitale from the ADA’s
requirements of a “qualified individual with a
disability,” those assignments render this suit
less frivolous or unreasonable.
The district court properly granted j.m.l.
and denied attorney’s fees. The judgment is
AFFIRMED.
8 42 U.S.C. § 12205 (“In any action . . . com-
menced pursuant to this chapter, the court[,] in its
discretion, may allow the prevailing party . . . a
reasonable attorney’s fee . . . .”).
9 A prevailing defendant may not receive fees
unless the plaintiff’s claim “was frivolous, unrea-
sonable, or groundless, or that the plaintiff con-
tinued to litigate after it clearly became so.” Chris-
tiansburg Garment Co. v. EEOC, 434 U.S. 412,
422 (1978).

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