UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-60510

EARL FOREMAN,

Plaintiff-Appellant,

VERSUS

THE BABCOCK & WILCOX COMPANY, ET AL.,

Defendants,

THE BABCOCK & WILCOX COMPANY,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Mississippi

May 22, 1997

Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

In this case under the Americans with Disabilities Act, 42

U.S.C. § 12101, et seq

, Earl Foreman allege d at trial that his

employer failed to reasonably accommodate Foreman’s limitations

arising from his heart conditio n. At the close of all evidence,

the district court entered judgment as a matter of law in favor of

the employer, holding that the evidence could not support a jury

finding that Foreman was either qualified for, or entitled to, the

positions he sought. Foreman now appeals. For the following1 Foreman testified that he began working at B&W on September

31, 1974.

2 Prior to working as an expeditor, Foreman worked at B&W as

a “helper,” “materialman assistant,” “laborer,” and janitor.

3 While the exact job description of an expeditor is disputed,

the follo wing description, found within the record, sufficiently

captures its essence:

Receives, checks, verifies and stores incoming

storeroom material and products. Operates Lift Truck and

similar vehicles to move materials and products from one

locat ion to another. Loads and unloads railroad cars,

trucks, etc. Expedites, moves and distributes items as

required. Identifies items received, storage containers,

bins, etc. Fills out purchase requisitions and submits

for approval. Signs for items received. Uncrates items,

obtains a running inventory on items in stock. Requires

2 reasons, we AFFIRM.

BACKGROUND

Plaintiff/Appellant Earl Foreman (“Foreman”) had been an

employee of Defendant/Appellee Babcock & Wilcox Company (“B&W”) for

over 22 years. 1 B&W is located in West Point, Mississippi, and

operates a welding and steel fabrication facility where it builds

and welds industrial boilers and associated parts. B&W consists,

in part, of two large buildings called “shops,” where the boilers

are assembled and welded. These shops contain approximately 400

welding machines and three electrical sub-stations. High-voltage

power lines run throughout the shops.

Foreman was working at B&W as an “expeditor.” 2 An expeditor

makes deliveries of necessary materials and supplies to the shops,

thereby exp editing the manufacturing process. Expediters also

unload trucks, receive materials, work on compute rs, and store

inventory. 3 Under a collective bargaining agreement (“CBA”)a knowledge of the shops and the locations of the various

operations being performed.

Performs crane hooking and signal s Crane Operator

and/or operates floor-operated jib and semi-gantry

cranes, two and four-wheeled hand trucks, crosstowns and

similar handling equipment. Works from prints, delivery

orders, freight bills, purchase orders or other written

and verbal instructions from Leader, salaried personnel

or employee being assisted. Keeps work areas, machinery,

and equipment clean and orderly.

4 The International Brotherhood of Boilermakers, Iron

Shipbuilders, Blacksmiths, Forgers, and Helpers, Local Lodge No.

903.

5 It is not clear from the record what salary Foreman received

as a level seven expeditor.

3 entered into with the workers’ union, 4 Foreman’s seniority

entitled him to a “level seven” position as an expeditor. 5

In March 1994, Foreman underwent surgery and had a pacemaker

installed by Dr. David H. Mullholland . In a letter dated May 3,

1994, Dr. Mullholland informed B&W that Foreman was medically

restricted from working within six feet of an y welding equipment

because of possible electromagnetic interference with his

pacemaker. Dr. Mulholland further restricted Foreman from working

within 40-50 feet of the power lines which ran throughout the

shops. It is undisputed that these limitations effectively

precluded Foreman from working within the shop areas.

On this same date, May 3, 1994, Foreman also presented to B&W

a sh ort-term disability claim which was signed by Foreman’s

treating ph ysician, Dr. Andrzej Wartak. This disability claim

stated that Foremen needed to miss work from March 25, 1994 until

June 13, 1994.4

On June 13, 1994, Foreman did not return to work; instead, he

submitted another letter from Dr. Wartak stating that Foreman

should remain off work indefinitely. Dr. Wartak affirmed the work

restr ictions as set forth by Dr. Mulholland (presumably in

anticipation of Foreman’s eventual return to work).

In September 1994, Foreman filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”) alleging

that B&W discriminated against him by not allowing him to return to

work as an expeditor, and by failing to reasonably accommodate him

with a n ew position. Foreman also filed a grievance with his

union. In response to Foreman’s complaints, on September 26, 1994,

B&W personnel manager Dal e Ulbrich met with Foreman and union

repr esentative Robert Shaffer for the purpose of discussing

Foreman’s return to work.

It is unclear what was discussed during this meeting.

Apparently, Foreman argued that he should be allowed to either

return to work as a level 7 expeditor, or be given another position

of comparable pay. B&W denied both requests. B&W told Foreman

that he could not return to work as an expeditor because the

medical restrictions imposed upon him by his doctor precluded him

from performing the essential job function of working in the shops.

B&W also told Foreman that it could not offer him other requested

positions because: (1) these positions did not exist or were not

available and (2) the “bona fide seniority provisions” of B&W’s CBA

prevented B&W from doing so.

Two weeks after this meeting, B&W offered Foreman a position6 Foreman states that a level 1 janitor earns approximately

two dollars per hour less than a level 7 expeditor.

5 as a level 1 janitor, a position which Foreman had previously

held. 6 B&W maintains that this was the only position which it

could offer Foreman given his qualifications, medical restrictions,

job availability, and the seniority provisions of the CBA. Foreman

accepted the position of janitor.

In May 1995, Foreman brought suit in federal court alleging

that B&W violated the Americans with Disabilities Act by failing to

accommodate his alleged disability. In July 1996, the case was

tried before a jury. At the close of Plaintiff’s case, B&W moved

for judgment as a matter of law. The district court held that

“Plaintiff has proved, in the Court’s opinion, that he has a

disability.” However, the district court denied B&W’s motion

pen ding further development of the facts “as to the essential

functions of an expeditor.”

At the close of all evidenc e, B&W made a renewed motion for

judgment as a matter of law, contending that no reasonable jury

could find either that Foreman was a qualified individual with a

disability un der the ADA, or that B&W failed to reasonably

accommodate him. The district court granted B&W’s motion,

holding, inter alia , as follows:

I’m of the opinion that no reasonable

jurors could in fact find that the plaintiff,

under these circumstances, is a qualified

individual with a disability, in that the

plaintiff cannot perform the essential

functions of the job expeditor with or without

reasonable accommodation. It is not a

rea sonable accommodation to require this6 manufacturer defendan t to eliminate an

essential function of the job of expeditor and

in effect create a new job for the plaintiff.

The district court did not address the issue of whether the “bona

fide seniority provisions” of B&W’s collective bargaining agreement

prevented B&W from giving Foreman another position. Foreman filed

the instant appeal.

STANDARD OF REVIEW

We review de novo the decision of a district court to grant

judgment as a matter of law, applying the same legal standard as it

u sed. O

mnitech Int'l Inc. v. Clorox Co.

, 11 F.3d 1316, 13 22-23

(5th Cir.1994). Judgment as a matter of law is proper after a

party has been fully heard by the jury on a given issue, and "there

is no legally sufficient evidentiary basis for a reasonable jury to

have found for th at party with respect to that issue." FED. R.

CIV. P. 50(a). In evaluating such a motion, formerly referred to

as a motion for directed verdict, the court is to consider all of

the evidence (and not just that evidence which supports the

n on-mover's case) in the light most favorable to the non-movant,

drawing all factual inferences in favor of the non-moving party,

and leaving credibility determination s, the weighing of the

evidence, and the drawing of legitimate inferences from the facts

to the jury. A nderson v. Liberty Lobby, Inc.

, 106 S. Ct. 2505,

2513 (1986); Conkling v. Turner

, 18 F.3d 1285, 1300 (5th Cir.

1994); Boeing Co. v. Shipman

, 411 F.2d 365, 374 (5th Cir. 1969) (en

banc). “A mere scintilla of evidence is insufficient to present a7

question for the jury.” B oeing Co.

, 411 F.2d at 374. A motion for

judgment as a matter of law “ should not be decided by which side

h as the better of the case, nor should [it] be granted only when

there is a complete absence of probat ive facts to support a jury

verdict. There must be a conflict in substantial evidence to

create a jury question.” Id . at 374-75.

We must affirm a judgment of the district court if the result

is correct, even if our affirmance is upon grounds not relied upon

by the district court. Elizarraras v. Bank of El Paso , 631 F.2d

366 (5th Cir. 1980); see Stegmaier v. Trammell

, 597 F.2d 1027 (5th

Cir. 1979) (it is firmly established that an appellate court must

affirm the lower court’s judgment if the result is correct even

though it is based upon an improper ground); Securities & Exchange

Commission v. Chenery Corp.

, 63 S. Ct. 454 (1943) (limiting the

rule to cases where appellate court need not make findings of

fact); Williams v. AgriBank, FCB

, 972 F.2d 962, 964 (8th Cir. 1992)

(holding that a judgment can be affirmed on any grounds fairly

supported by the record); McKenzie v. Renberg’s Inc.

, 94 F.3d 1478

(10th Cir. 1996) (an appellee may defend the judgment won below any

ground supported by the record, even grounds not relied upon by the

district court), cert. denied , 117 S.Ct. 1498 (1997).

DISCUSSION

We hold that Foreman did not adduce evidence which would allow

a reasonable jury to find that he was disabled, as defined under

the Americans with Disabilities Act. For this reason, we hold that7 Pursuant to 42 U.S.C. § 12116, the Equal Employment

Opportunity Commission is authorized to issue regulations which

effectuate the purpose of the ADA.

8 judgment as a matter of law in favor of B&W is appropriate.

Alternatively, we hold that the district court did not err in

finding that Foreman failed to offer evidence upon which a jury

could reasonably conclude that he was qualified for the position of

expeditor, or that the accommodations which he requested were

reasonable.

The American with Disabilities Act

The American with Disabilities Act (“ADA”) is a federal antidiscrimination statute designed to remove barriers which prev ent

qualified individuals with disabilities from enjoying the same

employment opportunities that are available to individuals without

disabilities. 29 C.F.R. § 1630, App. (1996). 7 The ADA expansively

prohibits discrimination in employment against people with

disabilities, providing that, “[n]o covered entity shall

discriminate against a qualified individual with a disabili t y

because of the disability of such individual in regard to job

application procedures, the h iring, advancement, or discharge of

e mployees, employee compensation, job training, and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a).

A "disability" includes a physical or mental impairment that

substantially limits one or more of an individual’s major life

activities. 42 U.S.C. § 12102(2). "Discrimination" includes “not

making reasonable accommodations to the known physica l or mental9

limitations of an otherwise qualified individual with a disability

who is an applicant or employee, unless such covered entity can

demonstrate that the accommodation would impose an undue hardship

on the operation of the business of s uch covered entity....” 42

U.S.C. § 12112(b)(5)(A).

Disability

Throughout this litigation, B&W has argued that Foreman is not

disabled, as defined under the ADA. If Foreman is not disabled, he

would not be entitled to a reasonable accommodation, nor would his

qualification for the position sought be relevant. Thus, the first

issue we must address is whether Foreman addu ced evidence which

would allow a reaso nable trier of fact to determine that he was

disabled. For the following reasons, we hold that he did not.

Under the ADA, a "disability" means: (1) a physical or mental

impairment that substantially limits one or more of the major life

activities of such individual; (2) a record of such an impairment;

or (3) being regarded as having such an impairment. 42 U.S.C. §

12102(2). Foreman does not argue that he is entitled to relief

under the second part of this definition; however, he does argue

that he is entitled to relief under parts one and three.

Therefore, we must ask if Foreman had an impairment that

substantially limited one or more of his major life activities, or

was regarded by B&W as having such an impairment.

Substantial Limitation

- Foreman is considered disabled under

the ADA if he is substantially limited in a major life activity.

“Substantially limits " generally means (i) unable to perform a8 “The terms ‘number and types of jobs’ and ‘number and types

of other jobs’

... are not intended to require an onerous evidentiary showing. Rather, the terms only require the

presentation of evidence of general employment demographics and/or

of recognized occupational classifications that indicate the

approximate number of jobs (e.g., ‘few’, ‘many’, ‘most’) from which

an individual would be excluded because of an impairment.” 29

C.F.R. § 1630.2(j), App. (1996).

10 major life activity that the average person in the ge neral

population can perform; or (ii) significantly restricted as to the

condition, manner, or duration under which an individ ual can

perform a particular major life activity as compared to the

condition, manner, or duration under which the average persons in

the general population can perform the same m ajor life activity.

29 C.F.R. § 1630.2(j)(1). Foreman argues that his pacemaker

substantially limited him from the major life activity of working

as an expeditor at the B&W facility. We disagree.

Pursuant to the Code of Federal Regulations, “[t]he term

substantially limits means 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 comparable

training, skills and abilities.” 29 C.F.R. § 1630.2(j)(3) (1996)

(emphasis in original). 8 “ The inability to perf orm a single,

particular job does not constitute a substantial limitation in the

major life activity of working

. ” I d. “Thus, an individual is not

substantially limited in working just because he or she is unable

to perform a particular job for one employer, or because he or she

is unable to perform a specialized job or profession requiring

extraordinary skill, prowess, or talent.” 29 C.F.R. § 1630.2(j),9 For example, in his affidavit, Foreman states: “[T]he

pacemaker does not keep me from doing any job at B&W so long as I

am not within six (6) feet of an arc welder. Based on my

experience at B &W, any job at B&W is within my capability except

t he actual operation of the welder and other jobs direc tly

per taining to welding.” In his discrimination charge, Foreman

states, “there are many jobs that I c ould do at B&W....” In his

own deposition, Foreman states, “[b]ased on my experience at B&W,

any job at B&W is within my capability except the actual operation

of the welder and other jobs directly pertaining to welding.” In

a letter by union President Robert Shaffer, which was offered as an

exhibit by Foreman, Shaffer sta tes, “[t]here are over 100 salary

positions that I believe should be considered....” When asked at

deposition whether “there is any type of work that you contend that

you are not able to do,” Foreman replied, “No sir

... other than

maybe digging ditches or things like th at....” Foreman’s doctor

stated by letter that, “[w]ith his permanent pacemaker he will have

one restriction, he will be unable to work around arc welding

equipment. He will be able to perform other duties as long as he

stays at least six feet away from an arc welder.”

11 App. (1996); see Dutcher v. Ingalls Shipbuilding

, 53 F.3d 723, 727

(1995).

At trial and on appeal, Foreman argues that the only job which

he was substantially limited from performing without accommodation

was that of an expeditor. In fact, Foreman argues that he is fully

capable of performing virtually every other job at the plant. The

record is replete with such evidence

. 9 Because the evidence so

overwhelmingly indicates that Foreman was, at best, substantially

limited by his alleged di sability from performing only a single,

particular job, he does not have a substantial limitation in the

major life activity of working, as contemplated by the ADA.

Regarded as Having a Disability

- Even though Foreman does not

have a substantial limitation in the major life activity of

working, he may fall within the statutory definition of disability12

if he was regarded by B&W as being disabled. There are three

different ways in which an individual may satisfy the definition of

“being regarded as having a disability”:

(1) [If he has] a physical or mental

impairment that does not substantially limit

major life activities but is treated by a

covered entity as constituting such

limitation;

(2) [If he has] a physical or mental

impairment that substantially limits major

l ife activities only as a result o f the

attitudes of others toward such impairment; or

(3) [If he has] none of the impairments

defined in paragraph (h)(1) or (2) of this

section but is treated by a covered entity as

having a substantially limiting impairment.

29 C.F.R. § 1630.2(l). Only subpart (1) is relevant to the instant

case.

An individual satisfies subpart (1) of this definition if he

has an impairment th at is not substantially limiting, but the

employer perceives the impairment as being substantially limiting.

29 C.F.R. § 1630.2(l), App. (1996). An employer does not

necessarily regard an employee as having a substantially limiting

impairment simply because it believes that she is incapable of

performing a particular job; the statutory reference to a

substantial limitation indicates instead that an employer regards

an employee as substantially limited in his or her ability to work

by finding the employee's impairment to foreclose generally the

type of employment involved. Ellison v. Software Spectrum, Inc.

,

85 F.3d 187, 192 (5th Cir. 1996); see also 29 C.F.R. §

1630.2(j)(3)(i).1 0 In fact, our review of the record indicates otherwise. When

questioned on direct examination, B&W Training Coordinator Joe

Stallings stated:

A I wanted Earl to come back to work. I very well knew how

to sympathize with him in his condition. The doctor hadn’t

said that he wasn’t able to work. I certainly sympathize with

him.

Q Why did you sympathize so much with him?

A Because I’ve suffered four heart attacks and bypass surgery

myself, and I was blessed well enough that there was not any

restriction, you know, placed on me and, you know, I could

very well sympathize the way he was feeling.

On cross-examination, Stallings stated:

Q Did you have any p roblems with Mr. Foreman coming back to

work when his doctors would release him?

A No, sir. I would have liked for Earl to come back to work

because he was not disabled.

Q You didn’t regard him as disabled?

A No, sir.

***

13 While it is uncontroverted that Foreman does have a heart

impairment, as stated earlier, his impairment does not

substantially limit a major life activity. Thus, for purposes of

satisfying subpart (1) of the definition, the question is whether

Foreman was treated by B&W as having an imp airment that

substantially limits a major life activity. After thoroughly and

carefully reviewing the entire recor d, we find no evidence upon

which a reasonable jury could determine that B&W per ceived or

treated Foreman’s condition as being substantia lly limiting, as

defined under the ADA. 10 Accordingly, Foreman has notshown that heWhen questioned on direct examination, B&W Personnel Manager Dale

Ulbrich stated:

Q Did you have any problem ever returning Mr. Foreman to work

if he could perform the job?

A Absolutely not. That’s why we have employees. We need

employees to do the work.

***

Q Had Mr. Sta llings had any discussions with you before

September 26, 1994 relative to Earl’s condition?

A Yes. We did have some discussions. On several occasions,

Joe had told me that Earl had talked to him about getting his

disability retirement. We discussed what those procedures

were. That he would have to have a statement from his doctor

s aying he was totally and permanently disabled. That’s the

requirement of our pension board down in New Orleans. At that

time Joe asked if there was anything we could do to help him.

That he sympathized with Earl. And I said it was strictly up

to the physicians to determine whether or not he was disabled.

But at this point, there was nothing saying he was disabled.

***

Q Let me ask you this. At that time did you consider Earl

disabled, unable to return to employment?

A No. Absolutely not. Any medical statements that we had

said that he only had restrictions being around medical

equipment.

Q Medical Equipment?

A I’m sorry. Electrical equipment. I’m sorry. Beyond that,

the doctors’ state ments said he could perform any other

function. Earl, himself, as well as Robert, said that he was

st r ong as an ox, strong in the back, that he could do

anything. And that he, himself, felt that he could do any job

either inside or outside o f B&W, for that matter. I had no

reason to believe he was disabled. I have known lot [sic] of

people who have had pacemakers. Never considered them

disabled. Joe has had a lot of heart problems. He’s very

physically active. In fact, the fellow that introduced me to

my wife 20 years ago yesterday

-- I forgot our anniversary, by

the way -- 20 years ago yesterday has a pacemaker. He rides

horses, ranches, farms . So I had no reason to believe that

earl was in any way disabled because of a pacemaker. And also

14based on what he said and what his doctor said.

While Foreman a lleges that Stallings had “heard enough” and was

“determined” to place Foreman on disability retirement, the

uncontroverted fact is that B&W continued to employ him, in spite

of his heart condition. “An employer’s belief that an employee is

unable to perform one task with an adequate safety margin does not

establish per se that the employer regards the employee as having

a s ubstantial limitation on his ability to work in general.”

Chandler v. City of Dallas , 2 F.3d 1385 (5th Cir. 1993); see also

Forrisi v. Bowen

, 794 F.2d 931 (4th C ir. 1986) (holding that an

employer did not regard the employee as handicapped simply because

it found that he could not meet the demands of a particular job).

B&W’s perception that Foreman was able to work in other areas was

evinced by its retention of For eman in a position that did not

require him to go into the shop area. While we recognize that the

position which Foreman was given was less desirable than that which

he had held, the record o verwhelmingly supports B&W’s contention

that the collective bargaining agreement guided B&W’s placement of

Foreman, as opposed to any perception by B&W that Foreman was substantially limited.

15 was regarded by B&W as being disabled.

Qualified Individual

Alternatively, even if Foreman was disabled as defined under

the ADA, he offered no evidence upon which a jury could find that

he was a qualified individual. Under the ADA,

[t]he term "qualified individual with a disability" means an individual with a disability who, with or without reasonable

acc ommodation, can perform the essential

functions of the employment position that such

individual holds or desires. For the purposes

of this subchapter, consideration shall be

given to the employer's judgment a s to what

functions of a job are essential....

42 U.S.C. § 12111. Thus, “[w]hile the ADA focuses on eradicating

barriers, the ADA does not relieve a disabled employee or applicant

from the obligation to perform the essential functions of the job.

To the contrary, the ADA is intended to enable disabled persons to11 On cross-examination, Stallings responded as follows:

Q Based on your 33 years of experience, do you know of

any reason why the company could not have sent Mr.

F oreman back as an expeditor and told the expedit ors,

Y’all try to work this out without him going into the

shop and see if that works out for you, for him to do the

job with all of the duties except going into the shop, do

you know of any reason why the company couldn’t have done

that?

A First off, the expeditor classification, as all

other classifications, are negotiated through our bargaining agent, whic h is Local 903. Going into the

shop is a major function of the expeditor classification.

And if you allow one employee the privilege in a case

like that on a permanent basis, well, it could very well

cause a lot of confusion within our contract and with our

union members and cause confusion, you know, plant wide.

On direct examination, Ulbrich stated:

A As the name implies, the very reason fo r the

existence of an expeditor is to move materials and parts

from our storeroom to the employees on the floor so that

they can produce the products that we build. It is the

very reason it exists.

***

The absolutely most important j ob of an expeditor is

to move the parts fro m the warehouse into the assembly

areas in the shop or from one area of the shop to another

area of the shop. The other duties, there are some that

are important but they all serve that main function. For

instance, they have to unload trucks. The reason you

unload a truck is so that you can move it into the shop

later. They work in the warehouse sometimes. The reason

they pull or in the warehouse and pull things out of the

warehouse are to get them to the shop. So probably the,

after the main function of delivering to the shop, the

16 compete in the work-place based on the same performance standards

a nd requirements that employers expect of persons who are not

disabled.” 29 C.F.R. § 1630, App. Background (1996).

The record is replete with evidence that an essential function

of the expeditor’s job is to carry materials into the shop areas. 11second most important function would probably be unloading trucks.

And then there are also some paperwork things involved, record

keeping.

Q All right. Let me ask you this. Is one expeditor

expected to, say, deliver into the shop and another only

expected to unload trucks and then maybe another one only

to put into the storeroom, or how that is done?

A All expeditors are required to do all functions of

that job. One of the main problems we have in our whole

assembly process or manufacturing process is getting

various parts to the assemblers on time....

So it is, therefore, very critical tha t every

expeditor be able to get things into the shop. And that

shipments are not delayed because one expeditor is just

doing paperwork or just unloading trucks. Every

expeditor has to make deliveries as soon as possible to

make the operation as efficient as possible.

***

Every exeditor is required to del iver to the shop.

That is important to that job as, you know, it would be

like a trial attorney that can’t come into court. They

all have to do that. Taxi cab driver has to be able to

drive a taxi cab. I mean, that is the main reason that

the job exists. We require every expeditor to go into

the shop.

***

All of them are supposed to go into the shop on a

daily basis. There are job descriptions that have been

written. They are presented to the union and discussed

with the union before they’re put into effect. Everybody

in that job classification draws the same rate of pay.

And therefore everyone is e xpected to do the total of

that job.

Q Let me ask you this. On the day shift how many

expeditors do you have?

A We have four expeditors on day shift.

Q And on second shift how many?

A One.

17On cross-examination, Foreman responded as follows:

Q Now, the jo b of expeditor has different

functions, doesn’t it?

A Yes.

Q But certainly one of the functions, and an important

function of the expeditor, is to get the material out of

the storeroom into the shop area so that the boilers and

the parts can be made: isn’t that true?

A True.

***

Q And the role of the expeditor is to get the material

in that shop so it can be manufactured, isn’t it?

A Yes.

1 2 On direct examination, when asked how much time an expeditor

spends in the shop, Foreman’s witness, fellow expeditor Ronnie

Cliett, stated: “I would say on a good day about a third, I

guess.” On direct examination, Ulbrich stated: “That could vary

from day to day. Anywhere from a third of an expeditor’s time up

to 60 percent, 50 or 60 percent or more. And some expeditors might

be required and are required to be in the shop all day.”

18 While it is true that the expeditor’s job is not limited to this

role, it is uncontroverted that going into the shop area

constitutes at least 20-30% of the expeditor’s responsibility. 12

Based upon the record before us, we h old that the district court

did not err in determining that going int o the shop area is an

essential function of the expeditor’s job, and that Foreman’s

pacemaker rendered him medically unqualified to perform that

essential function.

Reasonable Accommodation

Foreman argues that the district court erred by holding that19

B&W was not obligated to provide a reasonable accommodation for the

limitations arising from his alleged disability. In support of his

argument, Foreman asserts that he is entitled to either of two

proposed accommodations: a new job or an alteration of his

existing job responsibilities. Specifically, he argues that he is

entitled to at least one of the “100 salary positions” of which he

claims he is capable of performing, or an alteration to his job as

an expeditor, such that he not be required to make deliveries into

the shop areas. After reviewing the entire record, we hold that,

even if Foreman was disabled and qualified under the ADA, his

requested accommodations are not reasonable.

The ADA defines "Reasonable Accommodation" as follows:

The term "reasonable accommodation" may

include--

(A) making existing facilities used by

employees readily accessible to and usable by

individual with disabilities; and

(B) job restructuring, part-time or modified

work schedules, reassignment to a vacant

position, acquisition o r modification of

equipment of devices, appropriate adj ustment

or modifications of examinations, tra ining

materials or policies, the provision of

qualified readers or interpreters, and other

similar accommodations for individuals with

disabilities.

42 U.S.C. § 12111. An employer is not required to create “light

duty” jobs to accommodate. T urco v. Hoechst Celanese Chemical

Group, Inc. , 101 F.3d 1090, 1094 (5th Cir. 1996).

In granting judgment as a matter of law in favor of B&W, the

district court held, inter alia :

In effect, what the plaintiff is asking this13 On cross-examination, Foreman stated:

Q Now , of course, you know that under the union contract

the company can’t just arbitraril y place people in

different jobs, because under t he provisions of the

contract they have to have previously worked in that job

and have the necessary seniority?

A Yes.

Q And you don’t expect the company to violate the union

contract, do you?

A I never have.

Q And you wouldn’t want them to, would you?

A No, sir.

20 court to do is hold that a new job or a new

job category should be created to accommodate

h im. That job category would be that of an

expeditor but without having to supply the

materials to the shop to expedite production.

***

[H]ere the plaintiff is not seeking

merely restructure of this job.

...[P]lainiff seeks to entirely change one of

his primary job functions.

***

It is not a reasonable accommodation to

require this manufactur er defendant to

eliminate an essential function of the job of

expeditor and in effect creat e a new job for

the plaintiff.

Foreman admits that, under the terms of the CBA, he would not

otherwise be entitled to the reassignments which he seeks because

he does not have the requisite seniority. 13 However, Foreman argues

that the seniority provisions of the CBA violate the ADA because

they preclude B&W from offering him these reassignments. Foreman

argues that B&W’s obligation to accommodate himunder the ADA21

trumps B&W’s obligation to honor its seniority provisions under the

collective bargaining agreement. We disagree

.

Following the other circuits which have considered this issue,

we hold that the ADA does not require an employer to take action

inconsistent with the contractual rights of other workers under a

collective bargaining agreement. S ee Benson v. Northwest Airlines,

Inc.

, 62 F.3d 1108, 1114 (8th Cir. 1995); Eckles v. Consolidated

Rail Corp.

, 94 F.3d 1041, 1051 (7th Cir. 1996) (“After examining

the text, background, and legislative history of the ADA duty of

‘reasonable accommodation’, we conclude that the ADA does not

require disabled individuals to be accommodated by sacrificing the

collectively bargained , bona fide seniority rights of other

employees.”), cert. denied

, 117 S .Ct. 1318 (1997); M ilton v.

Scrivner, Inc

. , 53 F.3d 1118, 1125 (10th Cir. 1995) (recognizing

that plaintiffs' collective bargaining agreement prohibits their

transfer to any other job because plaintiffs lack the requisite

seniority).

Regardless, even if there were no CBA in place, B&W would not

be obligated to accommodate Foreman by reassigning him to a new

position. “[W]e do not read the ADA as requiring affirmative

action in favor of individuals with disabilities, in the sense of

requiring disabled persons be given priority in hiring or

reassignment over those who are not disabled. It prohibits

employment discrimination against qualified individuals with

disabilities, no more and no less.” D augherty v. City of El Paso

,

56 F.3d 695 (5th Cir. 1995), cert. denied , 116 S.Ct. 1263 (1997).1 4 The determination of qualification is two-fold: (1) whether

the individual meets the necessary prerequisites for the job, such

as education, experience, skills, and the like; and (2) whether the

individual can perform the essential job functions, with or without

reasonable accommodation. S ee 42 U.S.C. § 12111(8); 29 C.F.R. §

1630.2(m)(1994)

g:\opin\96-60510.opn

5/21/97 22 Additionally, Foreman offers no evidence showing that any of

the requested positions are, or were, available. For the

accommodation of a reassignment to be reasonable, it is clear that

a position must first exist and be vacant. Under the ADA, an

employer is not required to give what it does not have. Foreman

also fails to offer evidence showing that he is otherwise qualified

to meet the hirin g criteria for these requested positions. 1 4 In

other words, he has failed to establish that he possesses the

requisite skill, experience, education, and other job-related

requirements to qualify for these positions. Indeed, the record is

bare as to what those prerequisit es might be. In short, Foreman

has not offered evidence upon which a reasonable jury could find

that he is entitled to the accommodations sought.

CONCLUSION

Foreman did not adduce evidence which would allow a reasonable

jury to find that he was disabled, as defined under the ADA. For

this reason, we hold that judgment as a matter of law in favor of

B&W is appropriate. Alternatively, we hold that the district court

did not err in finding that Foreman failed to offer evidence upon

which a jury could reasonably conclude that he was qualified for

the position of expeditor, or that the accommodations which heg:\opin\96-60510.opn

5/21/97 23 requested were reasonable. For these reasons, the judgment of the

district court is AFFIRMED

.