* Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

96-50496

__________________

MILDRED ANN ALLEN,

Plaintiff-Appellant,

versus

THE TEXAS DEPARTMENT OF HUMAN SERVICES,

Defendant-Appellee.

______________________________________________

Appeal from the United States District Court for the

Western District of Texas, Austin

(A-95-CV-462)

______________________________________________

April 10, 1997

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

STATEMENT OF THE FACTS

Mildred Ann Allen was employed for over six years as a clerk

by the Texas Department of Human Services (“TDHS”). Allen’s

primary duties were as a Change Verification System clerk, which

entailed recording information using a computer terminal. Allen

was diagnosed with osteoarthritis by her personal physician in
1 The Texas Commission on Human Rights issued findings on June

12, 1995, which stated that it did not find a violation of the

2

November 1993. Allen subsequently filed a request for

accommodation with TDHS, asking that she no longer be required to

pull or file cases due to her “functional impairment” from

arthritis. Five days after this, Allen amended this request to ask

additionally that she not type “if at all possible.” What Allen

requested to be eliminated from her duties, typing and filing, made

up 70 percent of her job functions. 

TDHS decided that no reasonable accommodation could enable

Allen to perform her clerk position. TDHS began searching for

vacant positions at the same salary level for which Allen could

both qualify and be assigned. Allen filed an internal

discrimination complaint with TDHS on March 13, 1994, requesting

that she be transferred to a front desk position, and stating that

she could not perform her current job because of her disability.

Although this requested front desk position was not vacant, TDHS

offered Allen vacant positions in Killeen and Austin that required

minimal or no typing. Allen refused these positions. Following

this rejection, Allen’s supervisor recommended firing Allen due to

her inability to perform her requisite job duties, and Allen’s

employment was terminated in early May. On July 19, 1994, Allen

filed a charge of discrimination with the Texas Commission on Human

Rights and the EEOC, alleging that she was discriminated against on

the basis of disability.1
Texas Commission on Human Rights Act.

3

PROCEDURAL HISTORY

Allen filed a pro se suit on August 4, 1995 in federal

district court, alleging disability discrimination in violation of

(1) Title I of the Americans With Disabilities Act, 42 U.S.C. §§

12101-12213, (2) the Rehabilitation Act of 1973, 29 U.S.C. §§ 701-

96, and (3) Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e—2000e-17. A claim of race discrimination under Title VII was

added in Allen’s First Amended Complaint. The District Court

appointed counsel for Allen on January 19, 1996. TDHS filed a

Motion for Summary Judgment, to which Allen filed a response, and

the district court granted TDHS’s motion, holding that Allen was

not a qualified individual with a disability/handicap for the

purposes of the Americans with Disabilities Act, and the

Rehabilitation Act. Additionally, the court held that Allen had

failed to exhaust her administrative remedies on her Title VII race

discrimination claim because Allen’s charge of discrimination to

the Texas Commission on Human Rights and the EEOC complained only

of disability discrimination. Allen filed a Notice of Appeal by

Pro Se Appellant, following which her trial counsel entered an

appearance on her behalf and wrote her brief in this appeal.

On appeal, Allen argues that there was a genuine issue of fact

precluding summary judgment regarding Allen’s ability to perform

her job, and whether TDHS fired Allen because she was perceived to
4

have a disability. Allen concedes she may not have been entitled

to a reasonable accommodation, but asserts she was fired simply for

requesting one.

DISCUSSION

On appeal, Allen does not contest the district court’s holding

that her Title VII racial discrimination claim was barred by her

failure to exhaust administrative remedies. Therefore, the only

issue on appeal is whether she was discriminated against because of

a disability. In order to establish an ADA discrimination claim,

a plaintiff must prove: “(1) he has a disability; (2) he was

qualified for the job; and (3) an adverse employment decision was

made because of his disability.” Robinson v. Global Marine

Drilling Co., No. 95-20888, 1996 WL 679295, at *2 (5th Cir. Nov.

25, 1996). An individual is disabled under the ADA if he has “a

physical or mental impairment that substantially limits one or more

of the major life activities of such individual.” 42 U.S.C. §

12102(2)(A). “Major life activities” include basic functions such

as walking, seeing, hearing, speaking, breathing, learning, and

working. 29 C.F.R. § 1630.2(I). The only major life activity in

which Allen claimed to be impaired is working. 29 C.F.R. §

1630.2(j)(3)(I) states that a person is substantially limited with

regard to working when that person is “significantly restricted in

the ability to perform either a class of jobs or a broad range of

jobs in various classes as compared to the average person having
5

comparable training, skills, and abilities.” Additionally, “[t]he

inability to perform a single, particular job does not constitute

a substantial limitation in the major life activity of working.”

Id. The trial court found that Allen was not restricted from

performing a class of jobs, and was not, therefore, disabled.

Allen does not address this finding by the trial court on appeal.

Even were this Court to decide that this determination was in

error, Allen has clearly failed to meet the second prong of her ADA

claim, the requirement that she show she was qualified. 42 U.S.C.

§ 12111(8) defines a “qualified individual with a disability” as

“an individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires.”

Essential functions are “the fundamental job duties of the

employment position the individual with a disability holds,”

excluding “the marginal functions of the position.” 29 C.F.R. §

1630.2(n)(1). TDHS presented summary judgment evidence that

Allen’s requested accommodations would eliminate 70 percent of her

job’s essential functions. The ADA does not require an employer to

fundamentally alter a job or create a new position. Daugherty v.

City of El Paso, 56 F.3d 695, 700 (5th Cir. 1995), cert. denied, --

- U.S. ---, 116 S. Ct. 1263 (1996). Allen has made no attempt to

dispute that typing and filing were her essential duties; rather,

she argues that a factual issue exists whether she could still
6

perform these duties. Although Allen stated, in an affidavit

supporting her response to TDHS’ motion for summary judgment, that

she was able to perform all the essential functions of her job, at

no time prior to the trial did she indicate to TDHS that she was

able to fulfill all of her duties. Instead, while still employed

by TDHS, Allen requested that she be relieved of her essential

functions, typing and filing, and Allen specifically stated in her

internal complaint to TDHS: “I can’t do [my job] because of my

disability” (emphasis in the original). 

Finally, we note sua sponte that Allen’s claim should fail

because of its inconsistent assertions. If Allen is able to

perform the essential functions of her job, typing and filing, then

the basis of her ADA claim--that she is barred from working in a

broad class of jobs that require her to use her hands--does not

exist. Simply put, if she can perform these essential duties, she

is not barred from a class of jobs involving the use of her hands

and is not, therefore, disabled. On the other hand, if Allen is

disabled, and cannot use her hands, then she is not able to perform

the essential functions of her job, and TDHS is not required to

create a new job for her. In essence, Allen is hoist by her own

petard, and summary judgment would be appropriate based on the

inconsistency of her position alone.

Although Allen failed to raise the issue of her Rehabilitation

Act claim on appeal, we note that summary judgment was proper
7

because the elements in a cause of action under the ADA are

virtually the same as those under the Rehabilitation Act.

Daugherty v. City of El Paso, 56 F.3d 695, 697 (5th Cir. 1995),

cert. denied, --- U.S. ---, 116 S. Ct. 1263 (1996).

CONCLUSION 

For the foregoing reasons, the judgment of the district court

is AFFIRMED.