* 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this opinion should not be published and is not precedent except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.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-10192

LINDA SUSAN MORTON,

Plaintiff-Appellant,

VERSUS

GTE SERVICE CORPORATION, ET AL.,

Defendants,

GTE NORTH INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court

For the Northern District of Texas

(3:94-CV-424-P) 

 

April 9, 1997

Before JOLLY, JONES and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:*

Plaintiff-Appellant, Linda Susan Morton (“Morton”) appeals
1Morton was an employee of different GTE subsidiaries from 1969

until 1993. From October 1989 through March 1993, she was employed

by GTE North Incorporated. 

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from a summary judgment for her former employer GTE North

Incorporated (“GTE”) on her claims brought pursuant to the

Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”)

and the Texas Commission on Human Rights Act, TEX. LABOR CODE ANN. ch.

21 (Supp. 1996) (“TCHRA”). We affirm.

FACTS

The summary judgment evidence, considered in the light most

favorable to Morton, established the following facts. Morton

worked for GTE1 for over twenty years, moving up from a clerical

position to a computer programmer. She suffered from psychiatric

illness, diagnosed as major depression and bi-polar disorder, for

approximately five years prior to her termination. 

Morton was hospitalized in early 1989, in March of 1990 and in

the Spring of 1991 for depression. In the Fall of 1991 Morton’s

psychiatrist wrote two letters to GTE and spoke with Morton’s

supervisor two or three times, communicating that Morton needed to

reduce her level of stress at work. In response, GTE limited her

overtime for a three week period, restructured her job duties and

transferred “pressure” projects to other employees. In February

1992, GTE granted Morton another leave of absence for

hospitalization because she was suicidal. After her return from

this leave with a complete release, Morton continued to have

performance and absenteeism problems. The psychiatrist had a

conversation with GTE’s nurse suggesting that Morton needed reduced

interaction with people and that GTE delay disciplining Morton for

excessive absenteeism for two to three weeks. In June 1992, Morton

again threatened suicide. At her doctor’s recommendation, Morton
2Morton did not provide GTE with a release from her physician

indicating that she was recovered and ready to return to work.

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took two weeks off work, which was extended into a six month paid

short-term disability leave. The ADA became effective during her

short-term disability leave, on July 26, 1992.

During her short-term disability leave, Morton applied for

Social Security disability benefits and long-term disability

benefits through a private insurance policy. At the end of

Morton’s short-term disability leave, neither the Social Security

Administration or the private insurer had approved her requests for

benefits. GTE permitted Morton to use the remainder of her 1992

and 1993 vacation time to extend her paid leave until February 12,

1993, at which time her disability benefits had still not been

approved. GTE then placed Morton on a thirty day departmental

leave of absence so that her medical and other insurance would not

lapse. During that thirty day period, she was approved for Social

Security and private insurance disability benefits. Morton was

terminated as a GTE employee in March 1993.

In July and August 1993, Morton wrote three letters to GTE,

each time noting that she was “completely recovered”2 and

“requesting that GTE make reasonable accommodation to reassign me

to a vacant position within the organization as outlined in the

[ADA].” In September 1993, GTE advised Morton that they were not

“currently seeking external candidates with [her] background and

credentials.” Morton attached to her summary judgment pleadings a

list of the jobs filled at GTE during July 1, 1993 through December

31, 1993. However, there is no summary judgment evidence that

shows the essential functions of the jobs listed or establishes

that Morton was qualified to perform one or more of the jobs filled
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during that period. 

ANALYSIS

1. Standard of review.

We review the grant of summary judgement de novo, applying the

same standard as the district court. We must consult the

applicable law to ascertain the material factual issues, review the

evidence bearing on those issues, viewing it in the light most

favorable to the nonmoving party, and affirm the summary judgment

if there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. Burfield v.

Brown, Moore & Flint, Inc., 51 F.3d 583 (5th Cir. 1995). Further,

this Court can affirm the grant of summary judgment on any legal

ground supported in the record and is not limited to those reasons

stated in the district court order. In re Jones, 966 F.2d 169, 172

(5th Cir. 1992).

2. Is Morton a “qualified individual” under the ADA?

Title I of the ADA provides that an employer “shall not

discriminate against a qualified individual with a disability

because of the disability of such individual in regard to job

application procedures, hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms,

conditions and privileges.” 42 U.S.C. § 12112(a)(1995). To

prevail on her ADA claim, Morton must prove that (1) she has a

disability; (2) she was qualified for the job, and (3) an adverse
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employment decision was made solely because of her disability.

Rizzo v. Children’s World Learning Center, Inc., 84 F.3d 758, 763

(5th Cir 1996). A “qualified individual with a disability” is a

disabled employee who, with or without reasonable accommodation,

can perform the essential functions of the job she holds or

desires. 42 U.S.C. § 12111(8) (1995). The district court held

that Morton failed to raise a fact question concerning whether or

not she was a qualified individual on the date the ADA went into

effect or any date thereafter. Rather, the district court found

that the summary judgment evidence showed that Morton continuously

represented that she was unable to perform her job duties and has

failed to create a question of fact on the “qualified individual”

issue. 

The parties do not dispute that Morton has a disability as

defined by the ADA. Morton identifies two adverse employment

actions taken after the effective date of the ADA: Morton’s

termination in March 1993 and GTE’s failure to treat her as an

internal applicant when she asked to be reassigned during the

Summer of 1993. We will assume, arguendo, that Morton established

a genuine issue of fact on the first and third prongs of her ADA

cause of action. 

Focusing on the second prong, we find that Morton failed to

create a genuine issue of fact concerning whether or not she was a

“qualified individual.” Morton submitted to the district court
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copies of the resume she sent to GTE with her letter requesting

reassignment, which evidences her credentials. However, her

requests to GTE identified no specific job or type of work for

which she wanted to be considered. Further, because the summary

judgment record is completely devoid of evidence concerning the

essential elements of any GTE job in 1993, the district court was

correct in holding that Morton submitted no competent summary

judgment evidence that Morton was a “qualified individual.” A

number of types of evidence are relevant to whether a function is

“essential,” including: (I) the employer’s judgment as to which

functions are essential; (ii) written job descriptions prepared

before advertising or interviewing applicants for the job; (iii)

the consequences of not requiring the incumbent to perform the

function; (iv) the work experience of past incumbents in the job;

and/or (v) the current work experience of incumbents in similar

jobs. Riel v. Electronic Data Systems Corporation, 99 F.3d 678,

682-83 (5th Cir. 1996), citing 29 C.F.R. § 1630.2(n)(3).

The crux of Morton’s argument on appeal is that she was

qualified to do “her” job, by which we understand her to argue that

she is qualified for employment as a computer programer at GTE.

Here, the undisputed summary judgment evidence shows that “her” job

at GTE underwent major changes after 1990, including the the

addition of requirements that the employees utilize programming

languages at which Morton was not proficient. Therefore, Morton’s
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reliance on the fact that she was previously qualified for a job at

GTE is misplaced, absent some evidence that the same or

substantially similar job existed in the Summer of 1993. Because

she failed to provide the district court with evidence that she

could perform the essential functions of a presently existing job,

with or without accommodation, she did not create a genuine issue

of material fact concerning her qualifications. 

Likewise, Morton’s arguments concerning the reasonableness of

her proposed accommodations do not advance her argument without the

essential elements evidence.

 CONCLUSION

Based on the foregoing, we affirm the district court’s grant

of summary judgment for GTE on Morton’s ADA claim. 

The district court also granted GTE summary judgment on

Morton’s TCHRA claim. Although the notice of appeal is adequate to

appeal the TCHRA ruling, Morton raises no issues on appeal

regarding that claim. As recognized by the district court, the

majority of courts construing the Texas act have relied almost

exclusively on federal authorities. See, e.g. Fogle v.

Southwestern Bell Telephone Co., 800 F. Supp. 495, 498 (W.D. Tex.

1992). For these reasons, we affirm the district court’s grant of

summary judgment on Morton’s TCHRA claim as well.

AFFIRMED.
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