### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 12-30222

EARNEST HAMMOND, JR., Plaintiff - Appellant
v. JACOBS FIELD SERVICES, Defendant - Appellee

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:10-CV-56

Before STEWART, Chief Judge, and KING and OWEN, Circuit Judges. PER CURIAM: * In this case, we are asked to de c i d e wh ether Defendant-Appellee Jacobs Field Services North America w a s e n titled to summary judgment on PlaintiffAppellant Earnest Hammond, Jr.’s claims for discrimination based on his race and disability in violation of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, and for retaliation. The district court granted summary judgment for Jacobs Field Services. We affirm with res p e c t to the discrimination claims, but reverse and remand as to the retaliation claim. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Decem ber 5 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-30222 Document: 00512073755 Page: 1 Date Filed: 12/05/2012No. 12-30222 I. FACTS AND PROCEDURAL HISTORY Jacobs Fi e l d Services North America (“Jacobs”) performs general construction and construction-related services, industrial maintenance, and plant operations for chemical and refining companies throughout the Gulf Coast region. Earn e s t H a m mond, Jr. (“Hammond”) was first employed by Jacobs in 1996. After a gap in employment, he returned to work for Jacobs in 1998 at the Exxon Lube facility in Port Allen. The Exxon Lube facility packages motor oil, and employees in this facility work in shifts and rotate among the various types of automated lines which package the oil. As an operator, Hammond worked on the high-speed gallon line most often. His job duties involved climbing, b al ancin g , s to op in g, kneeling, pulling, pushing, lifting, grasping, an d u s in g to ol s . For security purposes, the Exxon facility wh e r e Hammond worked required employees to use a gate pass assigned t o each employee which is scanned to gain entry into the plant. This procedure is a safety measure which

ensures that only authorized personnel have access to the facility and also allows Exxon to know how many people are in the facility in the event of an emergency. If an employee’s badge is not u s e d f o r an extended period of time, it is deactivated. It is against the rules of both Exxon and Jacobs for an employee to enter the facility on someone else’s pass. This rul e was discussed at a safety meeting which Hammond attended during his employment. In the year leading up to his termination in March 2008, Hammond had experie nc e d h e alth problems, including carpal tunnel syndrome, neck pain, back pain and weakness in the legs. In February 2008, after an extended sick leave, Hammond attempted to retu r n to work with a limited duty release. Jacobs Superintendent Brent Watts informed Hammond that no limited or light duty work was available at that time and he coul d n o t r e t u r n to work until he obtained a full medical release. On February 29, 2008, Hammond returned and attempted to enter the plant but his d e a c tiv a ted badge would not allow him

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entry. Rather than use the intercom to communicate with security, Hammond followed another vehicle into the plant. Hammond knew that this practice was against company policy. 1 On March 3, 2008, Hammond discussed this incident with Bre n t Watts and Jacobs employees Wayne Tyson and Darryl Fuentes. During this meeting, Hammond admitted that he entered the plant on someone e l s e ’ s b adge and acknowledged that he knew this was against both Exxon’s and Jacobs’s rules. His only excuse for violating the rules was that he w a n t ed to discuss his returning to work with someone. Based on this security breach, Jacobs Project Manager Wayne Tyson terminated Hammond. This decision was later affirmed b y McClelland, who told Tyson that even if Jacobs had not terminat e d Hammond, Exxon would h ave refused to allow Hammond entrance to the facility. At the time of his termination, Jacobs contends that Hammond could not perform any of his job duties, let al o n e th e essential ones. The record reflects that Hammond has worked for other employers only for a few months since he

was terminat e d

. Since his termination, Hammond has received disability b e n efits, and Hammond began to receive Social Security disability benefit s i n February 2010. On May 22, 2008, Hammond filed a charge of discrimin a ti on with the EEOC, which issued a Notice of Right-to-Sue in October 2009. In January 2010, Hammond sued Jacobs in the Middle District of Louisiana for di s c ri m i nation

There is so me dis put e as t o the event s that fol low ed on Februa ry 29, 2008. Jacobs 1 ins ist s that , aft er ent erin g the plant , H amm ond w ent tosee Watt s and w as to ld toleave the plan t beca use his pr es ence wa s unauthori zed. Jacobsfurther claim s that Ha mm ond ignored this dir ective and att em pt ed to se e the Exxon plan t man ager Mark Mc Clella nd. Finally, Jacobs ass ert s that wh en Ha mm ond coul d not ente r the se cur e doo r to Mc Clella nd’ s off ice, he allegedly poun ded on the doo r, res ulti ng in Mc Clella nd’ s off ice cont acting the pol ice. Ha mm ond allege s that thes e event s occ urr ed on his sub se quent visi t, on Mar ch 3, 2008, and als o deni es thathep ound ed on the doo r. 3 Case: 12-30222 Document: 00512073755 Page: 3 Date Filed: 12/05/2012No. 12-30222

based on his disability and race in violation of the Americans with Disabiliti es Act (“ADA”) and of T itl e VI I of the Civil Rights Act of 1964 (“Title VII”), respectively, and for retaliation in viol a ti on of the ADA. Jacobs moved for 2
summary judgment o n all of the claims and in response, Hammond filed a motion in opposition. The district court granted Jacobs’s motion for summary judgment, and dismissed Hammond’s federal claims with prejudice. 3 II. STANDARD OF REVIEW We review a grant of summary judgment de novo, applying th e same standard as the district court. Holt v. State Farm Fire & Cas. Co. , 627 F.3d 188, 191 (5th Cir. 2010). Summary judgment is appropriate if there is no g e nuine dispute as to any material fact and the moving party is entitled to judgment as

a matter of law. Fed. R. Civ. P. 56(a). The facts and evidence in the record must be viewed in the light most favorable to the nonmovant. Holt , 627 F.3d at 191.“If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, then there is no genuine issue for trial.” Steadman v. Texas Rangers , 179 F.3d 360, 366 (5th Cir. 1999) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 597 (1986)). III. DISCUSSION A. Hammond’s Discrimination Claims 1. ADA To decide whether summary judgment was a p p ropriate on Hammond’s ADA discrimination claim, we begin with the burden-shifting framework o f

In his com plai nt, Ha mm ond allege d that Jacobs ret aliat ed agains t him for requ es ting 2
a c c o m m o dat ion for his dis abilit y (an ADA ret aliat ion clai m) , as we ll as for his com plai n t s about rac ial dis cri mi natio n by Jacobs agains t its em plo yees (a Title VII r e tali atio n clai m)

. Ho we ver, Ha mm ond app ears to have aband oned his Title VII ret aliat ion clai m i n his Op pos itio n to Jacobs’ s mo tio n for sum mary judgm ent, and doe s not clea rly indi cat e that he is pur sui ng this clai m on app eal. There for e, we revie w only Ha mm ond’ s ADA ret aliation clai m. The dis tri ct court dis m i s s e d Ha mm ond’ s st ate law clai ms withou t pr ejudi ce, as it 3
exerc ise d itsdisc ret ion unde r 28 U .S .C. § 1367 not to ass ertf ede ral juris dic tio n o ver them

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McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Raytheon Co. v. Hernandez , 540 U.S. 44 (2003); E.E.O.C. v. Chevron Phillips Chem. Co., LP, 570 F.3d 606, 615 (5th Cir

. 2 009). Under this framework, the plaintiff must first establish a prima facie case of discrimination

. 411 U.S. at 802. If the plaintiff succeeds, then the employer must articulate a legitimate, nondiscriminatory

reason for the adverse employment action. Id. If the employer meets its burden, then the burden o f p r o du c tion shifts back to the plaintiff to show that the defendant’s proffered reason was a pretext for unlawful discrimination. Id. at 8 04. A prima facie case coupled with a showing that the proffered re a s o n w a s pretextual will usually be sufficient to survive summary judgment. See Reeves

v . Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 146-48 (2000) (ADEA case); see also E.E.O.C. v. Chevron , 570 F.3d at 615 (citing Reeves for the proposition that McDonnell Douglasapplies in ADA discrimination cases). The ADA provides th a t “ [n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to

. . . discharge of employees

. . . and other terms, conditions, and privileges of employment.” 4 2 U .S.C. § 12112(a) (2006). To prevail on an ADA claim, a plaintiff must prove that he has a disability, that he is qualified for the job, and that he suffered an adverse employment decision because of his disability. T

urco v. Hoechst Celanese Corp. , 101 F.3d 1090, 1092-93 (5th Cir. 1996); see also Pinkerton v. Spellings , 529 F.3d 513, 517-19 (5th Cir. 2008) (c l arifying the ADA’s causation standard). The district court found that 4 Hammond was not disabled, that he was not qualified f or his position as line 5

The dis tri ct court in c o r r e c t l y c ite d Turc o for the pr opo sit ion that the ADA requ ires 4
so le caus atio n. This court, in Pinke rton , conc lude d that the ADA caus atio n st andar d doe s not requ ire a s how ing o f so le caus e. 529 F.3dat519

. Thedist ric t court wa s correc t to cit e l anguage fr omthe vers ion of the ADA in eff ect 5 at the tim e of the allege d dis cri mi natio n. The ADA wa s ame nded in 2008 and the ame ndm ents to o k eff ect on January 1, 2009. See ADA Ame ndm ents Act of 2008, Pub. L. No. 11-3 25, 122 5 Case: 12-30222 Document: 00512073755 Page: 5 Date Filed: 12/05/2012No. 12-30222

operator, and that he did not offer any evidence th a t the nondiscriminatory

r e a s o n Jacobs gave for the adverse employment decisions it made as to Hammond was pretextual. We assume arguendo that Hammond was disabled. As discussed below, 6

we think there is a fact question as to whether Jacobs ’ s proffered nondiscriminatory reason was legitimate. But we ultimately agree with the district court that summary judgment on Hammond’s ADA discrimination claim was correct because Hammond was not qualified for his position. “The term ‘qualified individual with a disability’ means 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); see also 29 C.F.R. § 1630.2(m) (“Qualified individual with a disability

means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the emplo y m e nt position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.”). As the record reflects, a line operator is required to perform moderately heavy manual tasks that Hammond was unable to do at the time o f h is termination. Some of these duties ar e n o t p hysically intensive (e.g., cutting

excess wrapp i n g m a t e rial off of pallets, and adding glue to the glue pot), and sometimes operators are tasked, along with their other responsibilities, with the duty of training other employees. There is evidence—and on appeal Hammond

Sta t. 3553 (200 8). We have pr evious ly h e l d that thes e ame ndm ents are not retroac tive. See EEOC v. A

gro Di stri b., LLC, 555 F.3d462 , 469 n.8 (5th Cir

. 2009)

. The dis tri ct court reli ed on Du pre v. Char ter Beha vi ora l He al th Sys. of Laf aye tte, Inc. , 6 242 F.3d 610 (5th Cir. 2001) , in hol ding that Ha mm ond is not dis abled

. But Ha mm ond’ s phys ical lim itat ions are mo re se vere than the plai ntif f’ s in Du pre . The plai ntif

f in Du pre wa s cap able of “ben ding at the kn ees , wa lking a half mile, lif ting up to thirty poun ds , and driving a car for an hour. ” Id. at 615. By com pariso n, the rec ord sho ws that Ha mm ond wa s unable to bend , st oop , or clim b, and coul d not wa lkm orethan one bloc k or lif t mo re than five poun ds

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argues—that Jacobs could have retained Hammond by reassigning him exclusively to training responsibilities or light duty tasks, which at the time

were distributed among all of the l i n e o p e r a tors in the plant. But this is not a “reasonable accommodation.” It is w e l l established that the ADA does not require an employer to reass i gn a n employee where doing so would result in other employees having to work harder or longer. See Turco , 101 F.3d at 1094;

see also Burch v. City of Nacogdoches , 174 F.3d 615, 621 (5th Cir. 1999) (“The ADA does not requir e a n e m p l oyer to relieve an employee of any essential f u n c tions of his or her job, modify those duties, reassign existing employees t o perform those jobs, or hire new employees to do so.”). Because Hammond was not qualified for his position, and because the accommodations he sought were not reasonable under the ADA, summary judgment was appropriate on Hammond’s ADA discrimination claim. 2. Title VII The dist ri c t court appears to have applied the McDonnell Douglas framework in ruling on Hammond’s Title VII ra c i al discrimination claim. However, “we a p p ly the modified McDonnell Douglas framework in racial discrimination cases under Title VII.” Vaughn v. Woodforest Bank , 665 F.3d 632, 636 (5th Cir. 2011) (citing Rachid v. Jack in the Box, Inc. , 376 F.3d 305, 308 (5th Cir. 2004). This modified framework differs from the traditional McDonnell Douglas framework only in the third stage of the analysis, af t er the plaintiff establi s h e s a p rima facie case of discrimination, and the defendant offers a legitimate, nondiscriminatory reason for its adv erse employment action. Id. Under the traditional framework, a plaintiff, having the burden of production shifted back to him, must show that the defendant’s reaso n w a s a pretext for unlawful discrimination. McDonnell Do ug las , 411 U.S. at 802. But under the modified framework, the plaintiff in this situation i s r e quir ed to show either that the defendant’s reason was pretextual, or that the reason, while true, was
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only one of the reasons for its adv e r s e action, and that another “motivating f actor” for the action was the plaintiff’s protected characteristic, Vaughn , 665 F.3d at 636 (citing Rachid , 376 F.3d at 312). We nee d n ot venture far into our modified McDonnell Douglas analysis because Hammond cannot establish a prima facie case of racial discrimination. To establish a prima facie case, Hammond must show that he was qualified for his position. McDonnell Douglas , 411 U.S. at 802; Rutherford v. Harris Cnty., Tex. , 197 F.3d 173, 184 (5th Cir. 1999). As discussed above, Hammond was not qualified for his position. Thu s , summary judgment for Jacobs was proper on Hammond’s Title VII claim. See, e.g. , Johnson v. Louisiana , 351 F.3d 616, 622 (5th Cir. 2003) (“Employers may succeed on summary judgment by establishing that the plaintiff is not qualified for the coveted position.”). B. Hammond’s Retaliation Claim We evalu a te Hammond’s ADA retaliation claim under the McDonnell Douglas framework. See Jenkins v. Cieco Power, LLC, 487 F.3d 309, 316-17 (5th Cir. 2007) (citing Sherrod v. Am. Airlines, Inc. , 132 F.3d 1112, 1121-22 (5th Cir. 1998)). To establish a prima facie case of unlawful retaliation, Hammond must show that he was engaged in an a ctivity protected by statute, that he was subj e c t t o an adverse employment action, and that there was a causal link between the protected act a n d th e adverse action. See id. at 317 n.3; Davis v. Dallas Area Rapid Transit , 383 F.3d 309, 319 (5th Cir. 2004); Seaman v. CSPH, Inc. , 1 7 9 F

. 3d 297, 301 (5th Cir. 1999); Sherrod , 132 F.3d at 1122 n.8. An

a dver s e employment action is any action that might have dissuade d a re a s o n ab l e worker from making or supporting a charge of discrimination. Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 57 (2006); McCoy v. City of Shreveport , 492 F.3d 551, 559 (5th Cir.2007). A “causal link” is shown when the evidence d emonstrates that “the employer’s decision to terminate was based in p a rt o n knowledge of the employee’s protected activity.” Sherrod , 132 F.3d at 1122.
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Upon his termination, Hammond suffered an adverse employment action. The record evidence i n di cates that Hammond also has satisfied the first and third requirements for showing a prima facie case of retaliation. Hammond
appears to have engaged in protected activity under the ADA when he requested accommodation for his disability shortly before he was fired. In addition, Hammond has presented sufficient evidence to establish a causal link between his firing and his requests for accommodation. G iv en that Hammond has presented sufficient evidence to establish a prima facie case for retaliation under the ADA, Jacobs is required to articulate

a legitimate, nondiscriminatory reason for its decision to terminate Hammond. McDonnell Douglas , 411 U.S. at 802. Jacobs alleged that it fired Hammond for entering the plant by following another employee’s vehicle through the security gate. Although it is true that Hammond’s action violated Jacobs policy, there is evidence in the record indicating that this policy w a s s e l d o m if ever enforced. Rather, the record shows that entering the plant by following another vehicle through the gate was routine and even encouraged for new employees who have yet to be issued access cards. A reasonable factfinder could conclude th a t Ja c obs’s articulated reason for the alleged retaliatory termination was pretextual. Because the evidence pertaining to Jacobs’s security policy creates

a genuine issue for trial, summary judgment wa s i n a ppropriate as to Hammond’s retaliation claim. CONCLUSION For the foregoing reasons, we AFFIRM the grant of summary judgment with respect to Hammond’s ADA and Titl e VI I discrimination claims, but REVERSE the grant of summary judgment with respect to Hammond’s ADA retaliation claim and REMAND for proceedings consistent with this opinion.

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