Carter v. ISP Technologies Inc

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40311 Summary Calendar

HARTENSE M. CARTER,

Plaintiff-Appellee,

versus

ISP TECHNOLOGIES, INC.,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court for the Northern District of Texas (G-01-CV-68) _________________________________________________________________ August 19, 2002

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

For her race discrimination claim, Hartense Carter appeals an

adverse summary judgment for failure to establish a necessary

element of her prima facie case — that, when she was terminated,

she was qualified for the position. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973); Sreeram v. Louisiana State Univ.

Med. Ctr. - Shreveport, 188 F.3d 314, 318 (5th Cir. 1999).

Carter was hired by ISP Technologies, Inc., in 1991; fell

while at work in 1997, injuring her knee; and began a leave of

absence in May 1998 to have knee surgery. Because of continuing

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. pain, she had three surgeries, the last just prior to 25 November

1998.

Carter attempted to return to work in March 1999 but was

unable to perform her duties. On 22 June 1999, ISP informed Carter

that company policy required her termination because she was

disabled more than 26 weeks.

It is undisputed that Carter was not physically qualified for

her position on both the date she was eligible for termination

(after receiving 26 weeks of disability benefits) and the date she

was terminated. Because Carter was not physically qualified for

her position when she was terminated, her prima facie case of

discrimination fails. See Davis v. Chevron U.S.A., Inc., 14 F.3d

1082, 1087 (5th Cir. 1994).

AFFIRMED