*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-11211

Summary Calendar

Jean Frantz BAZILE,

Plaintiff-Appellant,

VERSUS

AT&T-BELL LABORATORIES, INC. a/k/a AT&T MICROELECTRONICS, and

LUCENT TECHNOLOGIES, INC.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Texas

(3:96-CV-2652-G)

April 20, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

The Plaintiff, Jean Frantz Bazile, sued the Defendant, Lucent

Technologies (“Lucent”), the successor in interest to AT&T-Bell

Laboratories, alleging, inter alia, that Lucent discriminated

against him in violation of the Americans with Disabilities Act 
2

(“ADA”), 42 U.S.C. § 12101. The Plaintiff appeals from an order of

the district court granting the Defendant’s Motion for Summary

Judgment. After reviewing the briefs and the relevant portions of

the record on appeal, we affirm the district court.

I.

The Plaintiff, Jean Frantz Bazile, worked as an engineer for

Lucent in its Power Systems Division from 1980 until his

termination in February, 1995. After being diagnosed with a major

depressive condition, Bazile was hospitalized in 1988 and 1989.

Bazile returned to work under outpatient care from his

psychiatrist. 

In 1990, Lucent transferred Bazile to Mesquite, Texas, where

he worked under the supervision of Richard M. Hunt. Under Hunt,

Bazile was allowed to work a flexible time schedule because of

difficulties associated with insomnia. In 1991, Hal Babitch took

over as Bazile’s supervisor. Babitch informed Bazile that he would

no longer be allowed to work a flexible schedule. Bazile suffered

a relapse of depression in April 1993 and, as a result, took a

thirty-three day leave of absence. Bazile took an additional leave

of absence in March 1994. The plaintiff returned to work, but took

another extended leave of absence on June 28, 1994. Bazile

returned to work for two days in August 1994, before he went on

leave again. Bazile contends that the relapses were caused by

Babitch who refused to allow a flexible work schedule despite the

Plaintiff’s insomnia, refused to transfer Bazile to Florida,
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harassed Bazile for his absences, and wrote a poor evaluation of

Bazile which resulted in his demotion.

In September 1994, while still on leave, Bazile moved to

Florida to join his wife and children who had moved there in

August. On January 10, 1995, Bazile returned to work, but again

returned to Florida two days later. Bazile’s personal

psychiatrist, Dr. Pierre Andre, sent a letter to Lucent on January

16, 1995, indicating that Bazile was too emotionally unstable to

return to work in Texas away from his family. Lucent arranged for

an independent psychiatric examination, by Dr. Ron Kurlander, who

opined that Bazile was well enough to resume his job and that

Bazile was trying to manipulate the company to transfer him to

Florida. As a result of the independent examination, Lucent

informed Bazile by letter dated January 31, 1995, that if he failed

to return to work or fill out the necessary Family and Medical

Leave Act (“FMLA”) forms by February 6, 1995, he would be

terminated. Bazile failed to return to work or fill out the FMLA

forms by February 6th. Consequently, Lucent terminated his

employment and leave benefits. After Bazile’s termination, he

applied for and received social security disability benefits.

II.

Bazile is judicially estopped from claiming that he is a

“qualified individual with a disability.” The application for or

receipt of social security disability benefits creates a

“rebuttable presumption that the claimant or recipient of such

benefits is judicially estopped from asserting that he is a
4

‘qualified individual with a disability.’” Cleveland v. Policy

Mgmt. Systems Corp., 120 F.3d 513, 518 (5th Cir. 1997). In order

to rebut the presumption of judicial estoppel, the plaintiff must

present credible, admissible evidence sufficient to show that, even

though he may be disabled for purposes of social security, he is

otherwise qualified to perform the essential functions of the job

with a reasonable accommodation. See Cleveland, 120 F.3d at 518.

Bazile has failed to create a factual dispute regarding

whether he is otherwise qualified to perform the essential

functions of his job with a reasonable accommodation. The

Plaintiff’s personal psychiatrist continues to opine that Bazile

cannot return to work. “An essential element of any . . . job is

an ability to appear for work . . . and to complete tasks within a

reasonable period of time.” Rogers v. International Marine

Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996)(quoting Carr v.

Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)). As Bazile’s doctor has

not released him to work in Texas and he is unable to return to

work for an indefinite period of time, the plaintiff cannot perform

the essential function of appearing for work.

Moreover, Bazile cannot demonstrate that Lucent could

reasonably accommodate his disability. Bazile contends that Lucent

should have made the following accommodations for his disability:

(1) additional leave time, (2) flexible work schedule, and (3)

transfer to Florida. First, allowing Bazile additional leave time

is not a reasonable accommodation. As we stated in Rogers,

“Nothing in the text of the reasonable accommodation provision
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requires an employer to wait an indefinite period for an

accommodation to achieve its intended effect. . . .[R]easonable

accommodation does not require [an employer] to wait indefinitely

for [the employee's] medical conditions to be corrected.” Id. at

760 (quoting Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995)).

Bazile worked only four days from June 28, 1994 until his

termination on February 6, 1995. The Plaintiff has not produced

summary judgment evidence that allowing the accommodation of

additional leave time would enable him to perform the essential

function of appearing for work. Furthermore, the accommodations of

flex time and a transfer to Florida, even if reasonable, would not

enable Bazile to perform the essential functions of his job.

Although these accommodations may mitigate the effects of Bazile’s

insomnia, the evidence does not show that these accommodations

would enable the Plaintiff to appear for work. Consequently,

Bazile failed to raise a genuine issue regarding whether Lucent

could have reasonably accommodated his disability.

The plaintiff contends that the district court should have

permitted him to present evidence rebutting the presumption of

estoppel, enunciated in Cleveland v. Policy Management Systems

Corp. In Cleveland, the court clarified the relationship between

the ADA and the Social Security Act. The Cleveland opinion was

released one month prior to the district court’s grant of summary

judgment for the Defendant. Bazile had an opportunity to rebut the

presumption of judicial estoppel through a motion for leave to

amend his response to summary judgment, but failed to do so.
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Consequently, the district court did not err by granting summary

judgment.

For the foregoing reasons, the district court’s grant of

summary judgment for Lucent Technologies is

AFFIRMED.