*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this opinion should not be published and is not precedent except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. 00-21049

Summary Calendar

 

LANNIE MYERS,

Plaintiff-Appellant,

versus

SHELL DEER PARK REFINING COMPANY, A Division of

Shell Oil Products Company,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Southern District of Texas

(H-98-CV-4098)

 

May 29, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Lannie Myers challenges the summary judgment awarded Shell

Deer Park Refining Company. Primarily at issue is whether his

reassignment was a reasonable accommodation under the Americans

with Disabilities Act, 42 U.S.C. § 12101 et seq. (ADA). AFFIRMED
2

I.

Myers has worked at Shell since 1977. In June 1997, pursuant

to the pertinent collective bargaining agreement, Myers “bid” on,

and “won” (subject to meeting the prerequisites for the position),

one of the two control board operator positions at Shell’s

Hydroprocessing Unit. Each of the two control board operators is

cross-trained on the other’s jobs, and each monitors a designated

portion of the refining processes in the Unit. Each also interacts

with two outside operators; together, they monitor, troubleshoot,

and identify any need for corrective action. Whereas the control

board operators spend 100 percent of their time inside the control

room, seated at computerized consoles, the outside operators spend

30 to 40 percent of their time outside the Unit, taking readings,

making visual observations, and occasionally adjusting pumps and

valves.

To be promoted to the control board operator position, Myers

was required first to train on the two outside operator positions.

Shell explained control board operators need to know what they are

asking the outside operators to do because emergency situations may

arise that require immediate responses. Because Myers suffered

from a knee injury that prevented him from training on the two

outside positions, he did not receive the control board operator

position.
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In April 1998, after various temporary assignments to lightduty tasks, Myers was placed on disability leave because Shell had

no more work that fit his restrictions. He returned to work six

months later in a temporary position scheduling vacations for the

operators, and, when that ended, he received other temporary

assignments from reviewing and updating procedures to scheduling

(he has held that position since November 1998). Although Myers

received the same base pay he would as an operator, he had less

opportunity for overtime work, and lost his union protection.

Claiming Shell discriminated against him on the basis of his

disability by not awarding him the control board operator position,

Myers brought this action against Shell under the ADA. (As of this

appeal, he was still employed by Shell.) Shell was granted summary

judgment.

II.

A summary judgment is reviewed de novo. E.g., Taylor v.

Principal Financial Group, Inc., 93 F.3d 155, 161 (5th Cir.), cert.

denied, 519 U.S. 1029 (1996). Such judgment is appropriate when

the summary judgment record, viewed in the light most favorable to

the nonmovant, presents no material fact issue, and the movant is

entitled to a judgment as a matter of law. Id.; FED. R. CIV. P.

56(c).

To prevail on a claim under the ADA, a plaintiff must prove:

he has a disability; he is qualified for the position for which he
4

seeks employment; and he was discriminated against solely because

of his disability. Gonzales v. City of New Braunfels, Tex., 176

F.3d 834, 836 (5th Cir. 1999). The parties concede that Myers is

“disabled” within the meaning of the ADA because he is

significantly limited in the major life activity of walking.

Accordingly, the issues are: whether Myers is qualified for the

control board position; and whether the scheduler assignment is a

reasonable accommodation.

A.

Myers asserts the district court erred by: crediting Shell’s

disputed testimony that control board operators must perform the

job duties of an outside operator; misstating the issue to be

whether Shell was obligated to waive its requirement that the

control board operator first train on two outside jobs; and

concluding the temporary assignment was a reasonable accommodation.

Myers fails to demonstrate that his reassignment was not a

reasonable accommodation. “Under the ADA, reassignment to a vacant

position can be a reasonable accommodation.” Id. at 838. The gist

of Myers’ complaint is that Shell did not modify its training

procedures so that he could have qualified for the control board

position. This, however, merely establishes that Shell could have

made other reasonable accommodations for Myers. It does not show

that Shell’s decisions were discriminatory. Allen v. Rapides

Parish School Bd., 204 F.3d 619, 622-23 (5th Cir. 2000) (“The ADA
5

does not require an employer to give an employee with a disability

his job of choice especially when there are qualified individuals

who desire the same position.” (emphasis added)). And, even if

Myers’ reassignment was unfair because it amounted to a demotion,

as Myers asserts, this is not sufficient to establish a claim for

discrimination. See id. (“The ADA gives [a plaintiff] a claim only

for discriminatory action and not for unfair treatment.”).

B.

Myers also maintains Shell had a duty to engage in a good

faith, interactive process with Myers to assess his disability and

ascertain the availability of reasonable accommodations. As the

district court correctly noted, there is no requirement that Shell

engage in this kind of dialogue. See Loulseged v. Akzo Nobel,

Inc., 178 F.3d 731, 736 (5th Cir. 1999) (“[T]here may be some

situations in which the reasonable accommodation is so obvious that

a solution may be developed without either party consciously

participating in an interactive process.”); see also Allen, 204

F.3d at 622 (raising material fact issue whether interactive

process required does not establish ADA claim).

III.

For the foregoing reasons, the judgment is

AFFIRMED.