## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 00-30804

Summary Calendar

_______________



### S ANDRA 

### J. B RIDGES



### ,

Plaintiff-Appellant,

VERSUS



### D EPARTMENT OF 

### S OCIAL 

### S ERVICES



### ,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Middle District of Louisiana

(98-CV-931)

_________________________ April 27, 2001

Before SMITH, BENAVIDES,

and DENNIS, Circuit Judges.

JERRY E. SMITH, Circuit Judge: * Sandra Bridges requested a designated handicapped parking space from her employer, the

Department of Social Services (“DSS”).

When she did not get one, she sued under the

Americans with Disabilit ies A ct (“ADA”),

claiming that she did not receive a reasonable

accommodation. The district court granted

summary judgment for DSS, and we affirm.

I.

Bridges experiences pain in walking.

Although her condition does not prevent her * Pursuan t to 5 T H C IR

. R. 47.5, the court has

determined that this opinion should not be

published and is not precedent except under the

limited circum stances set forth in 5 T H C IR

. R.

47.5.4.2

either from worki ng in the office or from

household chores, she requested a parking

space close to the building to min imize her

walking distance. The DSS accommodated

her reque st by assigning her to a space in the

parking garage near the building as soon as it

became available, whereas she previously had

to park in an open lot across the s treet.

Bridges c o ntends that she should have

received a designated “handicapped” parking

space. She co mplains that when the

handicapped space became available, it was

assigned to another employee who had

requested an accommodation.

Bridges avers that she must pa rk in a

“stacked” space, which requ i res her to make

extra t r ips to the garage to accommodate the

person in the other space. DSS explains that

the handicapped slot is the only parking space

closer to the buildi ng t han is the one Bridges

uses; the two spaces are separated only by the

width of a driveway.

II.

We review a summary judgment de novo,

applying the same standards as did the district

court. V ielma v. Eureka Co., 2 18 F.3d 458,

462 (5th Cir. 2000). We draw all reasonable

inferences in favor o f the non-movant.

Anderson v. Liberty L obby, Inc., 4 77 U.S.

242, 248 (19 86). Summary judgment is

proper “if the pleadings, depositions, answers

to interrogatories, and admissions on file,

together wit h the affidavits, if any, show that

there is no genuine issue of ma t erial fact and

that the mov ing party is entitled to judgment

as a matter of law.” F ED

. R. C IV

. P. 56(c).

III.

The ADA requires that co vered entities

make “reasonable accommodations to the

known physical or mental limitations of an

otherwise qualified individual with a disabilit y who is an applicant o r employee unless such

c o vered entity can demonstrate that the

accommodation would impose an undue

hardship on the operati on o f t he business of

such covered entity.” 42 U.S.C. § 12112(b)-

(5)(A). Bridges can state a claim for

discrimination based on her employer’s failure

to accommodate a disabilit y by showing that

(1) the employer is covered by the statute; (2)

she is an individua l wit h a disability; (3) she

can perform the essential functio n s of the job

with or without reasonable accommoda tions;

and (4) the employer had notice of the

disabilit y and failed to provide

accommodation. L

yons v. Legal Aid Soc’y, 68

F.3d 1512, 1515 (2d Cir. 1995) (stating that a

f ailure to provide a parking space for a

disabled emp l oyee may present a cognizable

claim under the ADA).

DSS doe s not contest that i t i s a covered

entity and t hat Bridges can perform the

essential fun ct ions of the job. 1 Although

1 A failure-to-accommodate claim under the

ADA is distinct from a claim of disparate treatment

and is analyzed separately under th e law. E .g.,

Green v. Nat’l Steel Corp., 197 F.3d 894, 897-98

(7th Cir. 1999). Such failure to accommodate,

however, may provide evidence of disparate

treatment. S ee Burch v. Coca-Cola Co., 119 F.3d

305, 314 (5th Cir. 1997) (“A wrongful termination

claim under the ADA i s not properly analyzed

unde r a reasonable accommodation theory unless

an emplo yer is shown to have terminated a

qualified individual with a disability in or der to

avoid accommodating that employee’s impairments

at the workplace .”). Because Bridges alleges no

a dverse employment action, we need not apply

disparate treatment analysis here. To the extent

that the district court relied on disparate treatment

analysis to grant summary judg ment for DSS, it

erred. We may affirm, however, on any basis

(continued...)3

Bridges has suffe red no adverse employment

action, she may still

raise a claim of

discrimination based on the allege d failure

reasonably to accommodate her disabilit y. S ee

Loulseged v. Akzo Nobel, Inc., 178 F.3d 731,

734 (5th Cir. 1999). To raise this claim

independent l y of a disparate treatment claim,

however, she “must demon strate that a

substantiall

y limiting impairment somehow

affected [her] abilit

y to perform

[her] j ob.

Without such a showin g, there would be

nothing for an employer to accommodate.”

Burch, 119 F.3d at 315 n.4.

A.

We must cons ider whether Bridges is disabled within the meaning of the ADA, which

defines “dis a bilit y” as “(A) a physical or

mental impairment that substantially limit s one

or mo re o f the major life functions of such

individual; (B) a record of such impairment; or

(C) being regarded as having such impairment.” 42 U.S.C. § 12102(2). “[T]he

impairment must be substantially limit ing at the

time of the requested accommodation.” B urch

v. Coca-Cola Co., 119 F.3d 305, 315 (5th Cir.

1997).

To examine “major life functions” and substantial limitations, we look to the regulations

pr o mulgated by the Equal Employment

Opportunity Commission. D utcher v. Ingalls

Shipbuilding, 5 3 F.3d 723, 726 (5th Cir.

1995). These regulations classify walking as a

major life function. I

d. (cit ing 29 C.F.R.

§ 1630.2(i)). The definition of “substantially

limit s” includes “significant ly res tricted as to

the condition, manner, or dura tion under

which an individual can perfo rm a particular major life activity as co m pared to the

condition, manner, or duration und er which

the avera ge person under which the average

person in the general popu lat ion can perform

the same major life activity.” Id. (citing 29

C.F.R. § 1630.2(j)(1)(ii)).

Bridges can walk around the office and can

do household chores, sho pping, and yard

work. She has identified no activity in which

she cannot engage. She asserts, however, that

she attem pts to minimize walking because it

causes her pain. This condition does not qualify as a “sign ificant” restriction on her ability

to walk within the meaning of the ADA. 2

B.

Even if we were to conclude that Bridges is

“significant ly restricted as to the

. . . duration”

of her walking, she could not recover, because

she has not demonstrated that DSS knew of

her disabilit

y and failed to mak e reasonable

accommodation. Bridges had several informal

conversations with

her supervisors about her

p arking assignment in an open lot s ome

distance from the office building, and she made

a formal request for accommodation in J u ly

1996. In September 1996, the DSS assigned

her a parking space in the offi ce building

garage. This spot is precisely sixty feet, six

inches from the entranc e t o the building.

Bridges’s main complaint with the

1 (...continued)

supported by the record. Berry v. Brady, 192 F.3d

504, 507 (5th Cir. 1999). 2 See Dutcher, 53 F.3d at 726 n.11 (concluding

that difficulty in picking little things up from t h e

floor, operating a car ignition, or holding things

high up or really tightly for long periods of time did

not present sufficient evidence for a jury to

determine that impairment significantly limit e d a

major life activity). The district court found that

Bridges had not demonstrated a substantial limit to

the major life activity of working. Bridges does not

contest this finding.4

accommodation is that she occasionally has to

ma ke an extra trip to the garage because she

parks in a stacked space.

“The ADA is a feder al discrimination

statute designed to remove barriers whic h

prevent qualified individuals with disabilities

from enjoying the same employm ent

opportunities that are available to persons

without disabilities.” Taylor v. Principal Fin.

Group, Inc., 93 F.3d 155, 161 (5th Cir. 1996).

B ridges has alleged no barrier to her

employment opportunities. Moreover, “the

ADA requires employers to reasonably

accommodate limitations, not disabilities.” I d.

at 164.

“This is a critical di st inction, because the

existence vel non of a disabilit y or impairment

is ma t erial to a reasonable accommodation

claim only insofar as it li mit s an employee’s

abilit y to perform his or her job.” B urc h v.

Coca-Cola, Co., 1 19 F.3d 305, 314 (5th Cir.

1997). Bridges has not alleged any limitation

on her abilit

y to perform her job under the

current arrangement. Therefore, the district

court co r rectly concluded that DSS had no

duty to provide her with the specif ic parking

space that she requested.

AFFIRMED.