### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-50035 Summary Calendar

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. U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly31, 2013 Ly l e W . Cayce Clerk Case: 13-50035 Document: 00512327499 Page: 1 Date Filed: 07/31/2013No. 13-50035

PER CURIAM: * T h e district court granted summary judgment rejecting claims filed by John Gober and Alissa Moore under the Americans with D isabilities Act, Title VII of the Civil Rights Act of 1964, and pendent s tate-law c l a i m s . The d e f e ndants are their employer, Frankel Family Trust (doing business as Management Support) and its sole trustee, Edward Frankel. Gober alleges he

was f ired b ecause of a disability, and Moore alleges she was fired in retaliation for opposing Gober’s firing. We AFFIRM. FACTS Management Support, headquarter ed 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 b egan working for the Frankel Family Trust i n 2003. I n F ebruary 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 r eported 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 a n o pening for a m a i n tenance f oreman. Moore knew Gober had experience as a lead maintenance technician from their prior work toget h e r a t a n other apartment complex from 1999 to 2001. Moore contacted Gober about the opening, and he informed her of his recent surgery to implant a defibrillator. S everal days later, Gober’s cardiologist r eleased Gober for work with restrictions. Specifically, Gober could not work more than eight hours per day or on w e e kends; he c ould not lift anything over 30 p o unds; and he

* Purs uant to 5 T H C I R

. R. 47. 5, the court hasd eterm ined that this op inion s houldnot be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et f orth in 5 T H C I R

. R. 47. 5. 4. 2 Case: 13-50035 Document: 00512327499 Page: 2 Date Filed: 07/31/2013No. 13-50035

could not be e xp osed t o temperatures over 80 degrees F ahrenheit f or more than 20 to 30 minutes. Upon his release to work, Gobe r c o n t a c t e d Moore and informed he r of these restrictions. He then completed an application with Management S u ppo r t a nd i nterviewed with the regional manager Adams and then with Mike Boyd, a m aintenance f oreman at another location. The parties dispute what Gober r evealed at the i nterviews about his m edical limitations. On June 28, 2010, Management Support hired Gober. On his first day o n the job, Gober completed n ew-hire forms with Moore. Gober did not indicate he needed a n accommodation on the “Essential Job Functions” document. Moore also did not request medical verification o f Gober’s restrictions because s he be l i e v e d t h e job would n ot require that he work over eight hou r s a d a y or lift heavy items. On the “Employment Health Questionnaire,” Gober indicated h e could n ot lift m ore than 20 pounds, could not

move appliances, could not install air conditioners, and could not b e o n call. The evidence establishes that when G ober indicated he could not be on call, he meant that, b ecause of his eight-hour workday restriction, he could not respond to af t e r hours requests to return to the Property. Moore sent the new-hire forms to Management Support’s administrative offices in California. Frankel was i nformed of the r estrictions Gobe r n o t e d 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 w as “not right” and “not legal.” On M onday, July 12, Frankel instructed Adams to rehir e G o b e r i f Gober’s inability to b e on c all was temporary, but Gober told Adams it was permanent. The same day, Adams fired Moore for her mishandling Gober’s application. Moore and G ober filed complaints wi t h the Equal Employment Opportunity Commission and the Texas Human Rights C o m m i s s i o n. Both

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individuals w e r e issued right-to-sue n otices. Gober contended Management Support violated the Americans with Disabilities Act (“ADA”) and the Texas Commission on Human Rights Act (“TCHRA” ) b y firing him because of a disability and failing to accommodate his di sability. Moore contended M a n a gement Support retaliated against her in violation of Title VII and the TCHRA. They both brought claims for intentional infliction o f e motional dis t r ess. The district court granted summary judgment for Management Support on all claims. Gober appeals the grant of s ummary judgment as to his ADA and TCHRA claims, and Moore appeals only as to her TCHRA claim. DISCUSSION We review appeals from a grant o f summary judgment de novo

. T urco v. Hoechst Celanese Corp. , 101 F.3d 1090, 1092 (5th Cir. 1996). S u m m a ry judgment is appropriate if there “is no genuine dispute as to any m aterial fact.” Fed. R. Civ. P. 56(a). I. Gober’s Claims Under the ADA, “[n]o covered entity s hall discriminate against a qualified individual on the basis of a disability in regard t o job application procedures, the hir i ng, advancement, o r 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 u nder 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 de c i sion solely because of Gober’s disability. Turco , 101 F.3d at 1092. The TCHRA “purports t o correlate s tate law with federal law in the area of discrimination in employment.” NME Hosps., In c . v. Rennels , 994 S.W.2d 142, 144 (Tex. 1999) (quotation m arks omitted). Texas “looks to analogous federal pr e c edent for guidance when i nterpreting 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 G ober was qualified for the maintenance foreman position. A “qualified individual” is an

“i n d ividual who, with o r without r easonable a ccommodation, can perform th e essential functions of the employment position that such individual h olds or desires.” 42 U.S.C. § 12111(8) (emphasis added). To avoid summary judgment, Gober m ust show (1) “that he could perform the essential functions of the job in spite o f his disability” or (2) “that a reasonable accommodation of his disability would h ave enabled him t o perform the essential f unctions of the j o b

. ” Turco , 101 F.3d at 1093. T o make the initial determination of whether a job function is essential, among our considerations are “[t]he employer’s judgment a s to which f unctions

are essential; [w]ritten job descriptions prepared before advertising or interviewing applicants f or the job; [and] [t]he amount of time spent o n 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 a ctually 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 , w e c o n clude that being on call, which requires aft er-hours availability, is an e ssential function of the maintenance foreman position. That finding means Gober was not qualified for the position. As the district court no t ed, Frankel, the CEO of Management Suppor t , s t ated that being on call is an essential f unction; the written job description for maintenance f oreman s tates that being on call is a requirement; the current employees of Management S upport stated that the mai n t enance foreman must respond as needed to after-hours emergencies; a nd Management Support is under a legal obligation to have an employee on call 24 h ours a day.

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That obligation is o ne to be p e rformed by the maintenance foreman at the P r o p e r ty. See T E X

. P R O P

. C O D E § 92.020(a) (“A landlord that has [ ] on-site management

. . . for a residential rental property must provide

. . . a t e lephone number that will be answered 2 4 hour s a d ay for the p urpose of reporting emergencies related to a condition of the leased premises that materially affects the physical health or safety of an ordinary tenant.”). Gober d i s p u tes that it was essential that the foreman be on call, relying in part on Frankel’s testimony that the document entitled “Essential Job Funct i o n s ” applies to maintenance technicians and not n ecessarily just maintenance f

oremen. Frankel also testified, though, that while the foreman is

a supervisory position, the foreman a nd the technicians’ jobs, “for the most part,

are v ery close,” which is why, at that time, th ey used the same job functions form for the two positions. Additionally, Gober argues that the district c o urt did not appreciate the difference between being on call and b eing in the on-call rotation. Essentially, Gober argues he w as only r equired to answer his phone after hours, but a maintenance technician who was on c all would report to the Property. He

a l s o a r gues Adams testified that maintenance foremen who are not on the o n call r otation have physically had to respond to emergenci e s after h ours only three times during his 1 4 years with Management Suppo r t

. 1 The evidence shows, though, that maintenance foremen are expected to report to the Property after hours when necessary, even if they are not o n t h e on-call rotation. For example, Ad a m s t e s tif

i e d th at th e f

oreman who replaced Gober recently reported to the Property after h ours for an air c o nditioner problem. The evidence Gober

1 The record ref

lects that Ad am s tes tif ied about f

our s p ecif

ic i n s tances w here a m aintenance f

orem an w ho w as not on- call had to p hys ically rep ort to a prop erty (f or a f ire, a s ew er line back

- up , a car driving into a building, and a n air cond itioner p roblem )

. Ad dition a l l y , A d am s never s tated he w as p rovid ing an exhaus tive lis t of every tim e a m ainte nance f

orem an had to rep ort to a p rop erty af ter hours

. Ad am s tes tif ied that he had p hys ically rep orted to p rop erties about a dozen tim es . 6 Case: 13-50035 Document: 00512327499 Page: 6 Date Filed: 07/31/2013No. 13-50035

has pointed to on appeal demonstrates that reporting to work after hours may be somewhat infrequent, but it is, nonetheless, an essen t i a l f u n c tion 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 p hone, but he could not physic a l l y r e s p ond to emergencies. On appeal, he argues Moore testified that Gober n ever told her he w ould not come back to the Property after h ours. This testimony, though, contradicts the undisputed m edical restriction that Gober could n o t work more than eight hours
per day. Gober also argues Management Supp o r t s hould have engaged in an “interactive process” to determine a n appropriate accommodation. Yet Gober specifically t old Management Support that being on c all w as “not a c c e p t able.” T ask reassignment is not a reasonable accommodation if the task is an e ssential 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 G ober of this duty, modify the duty, or reassign other employees to the duty. See id. Accordingly, we need n ot a ddress Go b e r ’ s a r gu ment 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 t h a t ( 1 ) s h e “engaged in a p r otected activity”; (2) there was an

2 Manag em ent Sup p ort agreed to accom m od ate G ober’s lif ting and air cond itioner ins tallation res trictions. Managem ent Sup p ort states it could not have accom m od ated G ober’s res triction of not w ork ing in high tem p eratures , but becaus e G ober did not lis t this res triction in his new - hire p ap erw ork , M anagem ent Sup p ort w as unaw are of the res triction w hen it f ired G ober. 7 Case: 13-50035 Document: 00512327499 Page: 7 Date Filed: 07/31/2013No. 13-50035

adverse employment action; and (3) there w as a c a u s a l l i nk “between the protected activity and the adverse action.” Pineda v . United Parcel Serv., Inc. , 360 F.3d 483, 487 (5th Cir. 2004). A “pro t e c t e d a ctivity” includes opposing discriminatory practices. T E X

. LA B

. C O D E § 21.055(1). If a plaintiff establishes

a prima facie case, “th e b u r d e n t h en shifts to the defendant to demonstrate a legitimate[,] nondiscriminatory purpose f or the employment action.” Gee v. Principi , 289 F.3d 342, 345 (5th Cir. 2002). I f th e e mployer meets this burden, “the p laintiff must prove that the employer’s stated r e ason f or the adverse action

was merely a pretext for the r eal, 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 nonretaliatory reason for why it fired Moore a nd why her fi r i ng was in close proximity to h e r p rotected action. Moore has fai l ed to meet her burden of presenting evidence that would prove that but for the protected action she would not have b e e n fired. Id. Moore admitted making serious m istakes regarding Gober’s application, which is a l egitimate non-retaliatory justific a t i o n f or her firing. Moore was re s ponsible for intake of Gober’s new hire documents and admitted she made errors in reviewing it and “ m issed key points.” She was fired just one business day after her mistakes were brought to Frankel’s attention. M o o r e challenges the district court’s conclusion that she did n ot presen t evidence to rebut Management Support’s c l aim that s he 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 a n d was “not right.” The district court foun d n o evidence that Frankel, the sole decision m aker, knew anything other than that Moore was upset about Gober’s firing. B oth Frankel and Adams testified that Frankel w as 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 w ere i dentified, instead of on Monday, July 1 2, after Adams spoke with Frankel about Moore’s reaction to G ober’s firing. Moore argues this time line raises a dispute as to the r eason for her firing. Even though suspicious timing can be evidence of pretext, it is sufficient t o 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). O nce the employer offers a legitimate, n on-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 o ther arguments: ( 1) Adams and Boyd approved of Gober’s hi ri n g but were not reprimanded; ( 2) M o ore h ad an “exemplary career” with Management S upport; (3) Management Sup p o r t did not f ollow its normal procedure when f

iring her; and (4) Adams testified he did not know of another instance in which an apartment manager at M anagement Support w as fired for improperly hiring an employee. Such e vidence is relevant to whether there is

a causal link between t h e p r otected activity and the employment decision. Schroeder v. Greater New Orleans Fed. Credit Union , 664 F.3d 1 016, 1024 (5th Cir. 2011). None of these arguments, though, refutes our dispositive f inding that Frankel did not know anythi n g o t h e r than that Moore was upset. If Frankel, who decided to fire Moore, was unaware o f h er protected a ctivity, this evidence does not support that she would not h ave b e e n f i r e d in the absence of having engaged in protected activity. AFFIRMED.

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