UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 96-31133
DAVID L. HYPES, Individually and on behalf of his minor child Sarah Hypes, and MEGAN HYPES
Plaintiffs-Appellants
VERSUS
FIRST COMMERCE CORPORATION
Defendant-Appellee
Appeals from the United States District Court for the Eastern District of Louisiana
February 12, 1998
Before JONES, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:
I.
PROCEDURAL HISTORY
Plaintiff-Appellant David Hypes (hereinafter “Hypes”) worked
for First Commerce Corporation (hereinafter “FCC”) from February of
1993 to December 31, 1994. He was fired ostensibly for excessive
absenteeism and tardiness. During the period of his employment,
Hypes developed chronic obstructive lung disease, which he argues
precipitated his absences and tardiness. On August 23, 1995, Hypes
filed suit against FCC alleging violations of the Americans with
Disabilities Act (hereinafter “ADA”), 42 U.S.C. § 12101, et seq.,
1 the Louisiana Civil Rights Act for Handicapped Persons (hereinafter
“LCRHP”), La. Rev. Stat. Ann. § 46:2251, et seq., the Age
Discrimination in Employment Act (hereinafter “ADEA”), 29 U.S.C. §
623, et seq., the Louisiana Age Discrimination in Employment Act
(hereinafter “LADEA”), La. Rev. Stat. Ann. § 23:971, et seq., and
the Family Medical Leave Act (hereinafter “FMLA”), 29 U.S.C. 2601,
et seq. Hypes also interposed claims for intentional infliction of
mental distress and for loss of consortium. On January 19, 1996,
the case was assigned a trial date of September 9, 1996.
FCC filed a motion for summary judgment on July 30, 1996. On
August 2, 1996, with the trial date just over a month away, Hypes
moved for leave to amend the complaint to allege that FCC
terminated Hypes to avoid paying long-term disability benefits in
violation of Section 510 of the Employee Retirement Income Security
Act (hereinafter “ERISA”). 29 U.S.C. § 1140. On August 22, 1996,
the Magistrate denied Hypes’ motion to amend. The district court
granted FCC’s motion for summary judgment and judgment was entered
thereon on August 30, 1996.
On September 5, 1996, Hypes filed an objection to the
Magistrate’s denial of leave to file a first amended complaint. On
September 16, 1996, Hypes filed a motion to reconsider the judgment
dismissing his claims. On October 1, 1996, the district court
denied Hypes’ objection to the Magistate’s denial of Hypes’ motion
to amend. On October 10, 1996, the district court denied Hypes’
motion to reconsider. On October 28, 1996, Hypes filed a notice of
appeal asserting the following alleged errors:
2 1. The district court erred by granting summary judgment;
2. The district court erred by upholding the magistrate judge’s denial of plaintiff-appellant’s motion to amend.
Since the evidence viewed in the light most favorable to Hypes
will only support the conclusion that he was fired due to excessive
absence not linked to his disability, and since the proposed
accomodations, as a matter of law, are insufficient to allow Hypes
to perform the essential functions of the job, we affirm the
district court summary judgment. Furthermore, we find no abuse of
discretion in the district court’s denial of Hypes’ eleventh-hour
motion to amend. Therefore, we affirm.
II.
FACTS
Hypes was hired by FCC in February of 1993, as a loan review
analyst assigned to a Consumer Assessment Team in the Independent
Review Services Division. He worked in that position until April
27, 1994, when he was reassigned to a Commercial Portfolio Team.
This reassignment was initiated by Hypes’ immediate team leader,
Bill Burnell, and the Independent Review Services Division leader,
Kim Lee, ostensibly in response to a pattern of improperly
documented absenteeism and tardiness, which naturally led to Hypes’
inability to complete reports and projects on time.1 After his
April, 1994, reassignment, Hypes’ absenteeism and tardiness
1 Lee and Burnell knew that Hypes’ absences were mostly due to illness and were concerned that Hypes had not taken the time to provide proper medical documentation of these absences. During the interview Hypes promised to provide proper medical documentation for further absences or tardiness due to illness.
3 continued without proper documentation. On July 1, 1994, Hypes
began to track his own attendance record, which demonstrated that
he was absent on July 1, 6, 13, 26, 29 and August, 1 and 5, and
worked half days on July 27 and 28 and August 2, 3 and 4.
On August 5, 1994, Hypes was diagnosed with chronic
obstructive lung disease. On or about August 11, 1994, Hypes
provided FCC with a letter from his physician, Dr. Brooks Emory,
advising of Hypes’ diagnosis and scheduled treatment beginning on
August 12, 1994. Thereafter, Hypes was hospitalized for tests on
August 15, 1994. In a statement dated August 25, 1994, Dr. Emory
advised FCC that the date for Hypes’ release was indeterminate but
that the restrictions on Hypes were temporary. This prompted FCC
to notify Hypes that he was eligible to receive short-term
disability benefits at a rate of 100% of his pay for the period
August 8 through 29, 1994. The letter also notified Hypes that
time away from work during short-term disability was counted toward
the twelve weeks for which he was eligible under FCC’s Family
Medical Leave Policy, a copy of which was enclosed with the letter.
Hypes was also notified by telephone that he could use his vacation
pay to cover an additional two weeks of absence through September
9, 1994.
Hypes’ medical release from Dr. Emory, dated September 9,
1994, indicated that Hypes was able to return to work on September
12, 1994, to full activity, without restrictions. Hypes returned
to work on September 13, 1994. The following day, September 14,
Hypes met with Kim Lee and Marilyn Mays, FCC’s Employee Relations
4 Manager. At that time Hypes was informed that he would be expected
to be at work on time, and, if he were medically unable, then the
appropriate documentation would be necessary. Hypes expressed his
concern that his condition would make it difficult if not
impossible to be at work by 8:30 a.m., and therefore, he requested
an accomodation, i.e., working without a neck tie and starting work
later in the morning. However, since the release from Dr. Emory
was without restriction, his request was denied. Hypes was
instructed to obtain a revised release which would identify any
further limitations. By letter dated September 19, 1994, Dr. Emory
advised FCC that travel might be exceedingly difficult for Hypes at
that time, but did not identify any restrictions or limitations
affecting Hypes’ ability to attend work regularly, punctually and
in appropriate attire.
In spite of Dr. Emory’s conclusion that Hypes should be able
to get to work on time and work a full schedule, Hypes subsequently
missed nine (9) full days (Sept. 19, 20, 26, 27, Oct. 11, Nov. 14,
15, 16, 30) and seventeen (17) half days (Sept. 21, 22, 28, Oct. 3,
5, 13, 17, 18, 20, 25, 28, Nov. 2, 9, 17, 18, 25, 29). There was
no documentation by Hypes of the reason for the absenteeism and
tardiness after September 19, 1994. Hypes own notes reflect that
in the five month period from July 1 through December 2, 1994, he
missed sixteen (16) full days and twenty-three (23) half days of
work, exclusive of the twenty-five (25) days he missed while on
short-term disability leave. In his deposition testimony, Dr.
Emory confirmed Hypes’ ability to work a full schedule without
5 restrictions both before and after the period of Hypes’ short-term
disability leave. Dr. Emory also testified in his deposition that
during an office visit on September 28, 1994, Hypes had complained
of difficulty getting started in the morning so that he could make
it to work on time. Nevertheless, Dr. Emory apparently believed it
was up to Hypes whether to get up an hour earlier so that he could
make it to work on time.2 Therefore, no further restriction was
obtained or produced by Hypes following the revised release from
Dr. Emory on September 19, 1994, and, contrary to his promise in
the April 27, 1993, meeting with Lee and Mays, Hypes provided no
medical documentation to explain the absences after September 19,
1994. Because of Hypes’ persistent absenteeism and failure to
provide medical documentation to support these absences or the need
for accomodation, Kim Lee informed Hypes that he no longer had a
position in the Independent Review Services Division. The final
decision to terminate Hypes was made by Marilyn Mays, and Hypes was
removed from the payroll effective December 31, 1994. FCC has
continually maintained that Hypes was fired for excessive
unexplained absenteeism.
III.
Did the district court err by granting summary judgment?
A.
Standard of Review
2 In Dr. Emory’s deposition testimony this comment about getting up an hour earlier was made in a cursory, almost off-hand fashion, and does not appear to be a medical assessment of how much additional time Hypes would actually need to get started in the morning because of his condition.
6 “We review the district court’s grant of summary judgment de
novo, applying the same standards as the district court.” Cleveland
v. Policy Management Systems Corp., 1997 WL 464657, at *2 (5th Cir.
Aug. 14, 1997). If plaintiff lacks evidence sufficient to create
a genuine issue of fact in support of a necessary element of a
claim or claims, then summary judgment is appropriate against
plaintiff on that claim. River Production Co., Inc. v. Baker Hughes
Production Tools, Inc., 98 F.3d 857, 859 (5th Cir. 1996) (citing
Fed.R.Civ.P. 56(c)).
B.
Law
All of the statutory schemes Hypes sued under prohibit
intentional discrimination based on a specified motive. The ADA
and LCRHP prohibit discrimination in employment against disabled
persons, on the basis of a disability, when the disabled person can
perform the essential functions of the job with reasonable
accomodation, if necessary. 42 U.S.C. § 12101, et seq.; La. Rev.
Stat. Ann., § 46:2254; Burch v. Coca-Cola Co., 119 F.3d 305 (5th
Cir. 1997) (discussing ADA);Turner v. City of Monroe, 634 So.2d 981
(La. App. 2 Cir. 1994) (discussing LCRHP). The ADEA and LADEA
prohibit discrimination in employment on the basis of age. 29
U.S.C. § 623, et seq.; La. Rev. Stat. Ann., § 23:972 (prohibiting
employers from taking various discriminatory actions against
employees “because of such individual’s age”); Price v. Marathon
Cheese Corp., 119 F.3d 330, 336 (5th Cir. 1997) (ADEA). The FMLA
prevents employers from discriminating against employees for
7 requesting leave authorized by the Act. 29 U.S.C. § 2617 (FMLA -
provides for private right of action by employee against employer
who “interfere[s] with, restrain[s], or den[ies] the exercise of
... any right provided under this subchapter.”).
Under each of these statutory anti-discrimination schemes, the
employee bears the burden of proving that the employer’s actions
were motivated by the considerations prohibited by the statute.
Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995)
(in ADA cases “employer’s intent is a question of fact, for which
the plaintiff carries the burden of persuasion”); Turner v. City of
Monroe, 634 So.2d 981, 985 (La. App. 2 Cir. 1994) (describing the
plaintiff’s burden of proof under the LCRHP); Bienkowski v.
American Airlines, Inc., 851 F.2d 1503, 1504-05 (5th Cir. 1988)
(describing the application of the McDonnell Douglas-Burdine method
of shifting burdens to suits under the ADEA, where the ultimate
burden of proof remains with plaintiff); DeLoach v. Delchamps,
Inc., 897 F.2d 815, 818 (5th Cir. 1990) (applying the McDonnell
Douglas-Burdine method to suits brought under the LADEA); Oswalt v.
Sara Lee Corp., 889 F. Supp. 253, 259 (N.D.Miss. 1995) (holding
that under the FMLA the plaintiff must prove an adverse employment
decision because of a request for leave, which may be achieved by
using the McDonnell Douglas-Burdine formula). Therefore, if Hypes
fails to prove that his termination was motivated by his age,
disability, or request for leave, there is no liability under the
ADA, LCRHP, ADEA, LADEA or FMLA.
8 C.
Analysis
The evidence in the instant case, viewed in the light most
favorable to Hypes, will only support the conclusion that FCC fired
him due to excessive absence. Given that the evidence conclusively
proves that Hypes was fired for excessive absence, no reasonable
juror could conclude that FCC fired Hypes because of his age or any
request for leave under the FMLA. Therefore, summary judgment was
proper on Hypes’ claims under the ADEA, LADEA and FMLA.
Nevertheless, if Hypes’ excessive absences were linked to his
disability, and FCC knew it when they fired him, we might say that
excessive absence is a pretext or even a proxy for Hypes’
disability, and he would have an arguable claim under the ADA and
LCRHP. However, even if we accept that Hypes was fired because of
his disability, he is still not “otherwise qualified” and therefore
may not prevail on his ADA and LCRHP claims. 42 U.S.C. § 12112(a);
La. Rev. Stat. Ann., 46:2254(A); Daigle, 70 F.3d at 396 (ADA);
Turner, 634 So.2d at 987 (LCRHP).3 To be otherwise qualified to
perform the job and able to state a claim under the ADA and LCRHP,
Hypes must be able to perform the essential functions of the job
with or without reasonable accomodation. 42 U.S.C. § 12111(8); La.
Rev. Stat. Ann., 46:2253(4)(a).
Hypes was not “otherwise qualified” for his job because: 1) as
3 Unlike the LCRHP, the ADA does not use the terminology “otherwise qualified”. Rather, the ADA protects the “qualified individual with a disability”. 42 U.S.C. § 12112(a). However, the difference is semantic only, and does not effect our analysis, which is the same under the ADA and LCRHP.
9 the district court correctly concluded, it was an essential
function of his job, as a member of a team, that Hypes be in the
office, regularly, as near to normal business hours as possible,
and that he work a full schedule; and 2) even with the requested
flex-time accomodation, Hypes could not arrive at work early enough
or often enough to perform the essential functions of the job. The
evidence demonstrates that this was not the sort of job which could
be done at home. Hypes’ job required him to review various
confidential loan documents, which could not be taken from the
office. “An employer is not required to allow disabled workers to
work at home, where their productivity inevitably would be greatly
reduced.” Vande Zande v. State of Wis. Dept. of Admin., 44 F.3d
538, 544 (7th Cir. 1995). Furthermore, he was a part of a team and
the efficient functioning of the team necessitated the presence of
all members. “[T]eam work under supervision generally cannot be
performed at home without a substantial reduction in the quality of
the employee’s performance.” Id. at 544. Therefore, it was critical
to the performance of his essential functions for Hypes to be
present in the office regularly and as near as possible to normal
business hours.
Other courts are in agreement that regular attendance is an
essential function of most jobs. Rogers v. International Marine
Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (“[a]n essential
element of any government job is an ability to appear for work ...
and to complete assigned tasks within a reasonable period of time”)
(quoting Carr v. Reno, 23 F.3d 525, 530 (D.C. Cir. 1994)). See also
10 Tyndall v. Nat’l Educ. Centers, Inc. of Cal., 31 F.3d 209, 213 (4th
Cir. 1994) (“a regular and reliable level of attendance is a
necessary element of most jobs”); Law v. United States Postal
Serv., 852 F.2d 1278, 1279-80 (Fed. Cir. 1988) (holding that “an
agency is inherently entitled to require an employee to be present
during scheduled work times, and, unless an agency is notified in
advance, an employee’s absence is disruptive to the agency’s
efficient operation”); Walders v. Garrett, 765 F. Supp. 303, 309-10
(E.D. Va. 1991) (holding that “employees cannot perform their jobs
successfully without meeting some threshold of both attendance and
regularity[;] the necessary level of attendance and regularity is
a question of degree depending on the circumstances of each
position, ... however, ... some degree of regular, predictable
attendance is fundamental to most jobs”), aff’d, 956 F.2d 1163 (4th
Cir. 1992); Santiago v. Temple Univ., 739 F. Supp. 974, 979 (E.D.
Pa. 1990) (“attendance is necessarily the fundamental prerequisite
to job qualification”), aff’d, 928 F.2d 396 (3d Cir. 1991).
Although Hypes proposed an accomodation of flex-time, that
accomodation still would not enable Hypes to perform the essential
functions of his job. The evidence, viewed in the light most
favorable to Hypes, at best only establishes that he needed an
additional hour in the morning to get to work. While Hypes was
still with FCC, Dr. Emory identified only one limitation resulting
from Hypes’ disability: inability to travel. Hypes’ told Lee and
Mays that he might have difficulty coming to work at 8:30 a.m.
because of his disability, however, he did not identify any
11 specific accomodation for that limitation, i.e., one hour, two
hours or more. “When the nature of the disability, resulting
limitations, and necessary accomodations are uniquely within the
knowledge of the employee and his health-care provider, a disabled
employee cannot remain silent and expect his employer to bear the
initial burden of indentifying the need for, and suggesting, an
appropriate accomodation.” Taylor v. Principal Financial Group,
Inc., 93 F.3d 155, 165 (5th Cir. 1996). It was only after the
fact, during his deposition testimony that Dr. Emory made the off-
hand remark that Hypes needed an additional hour to get to work.
FCC was clearly not in possession of that information while Hypes
was still employed by them. On the contrary, the indication they
received from Dr. Emory was that Hypes had no limitations other
than traveling.
Nevertheless, even if we assume that FCC knew Hypes needed an
additional hour to get to work, and that Hypes had requested a
flex-time accomodation of one hour, Hypes still is not otherwise
qualified to perform the essential functions of the job. The
evidence shows that Hypes regularly came to work as late as 10:30
a.m. to 1:00 p.m., and, almost as often, he failed to come to work
at all. Therefore, the requested flex-time accomodation of one
hour would rarely be enough to actually ameliorate Hypes’s
tardiness and absenteeism. Since regular attendance is an
essential function of Hypes’ job, and since he could not be
expected to have regular attendance even with the requested flex-
time accomodation, Hypes is not “otherwise qualified” to perform
12 this job and thus may not prevail under the ADA or LCRHP.
IV.
Did the district court err by upholding the magistrate judge’s denial of plaintiff-appellant’s motion to amend?
We review the district court’s denial of Hypes’ motion to
amend the complaint for abuse of discretion. Fitzgerald, v.
Secretary, United States Dep’t. of Veterans Affairs, 1997 WL 473337
at *6 (5th Cir. Sept. 5, 1997) (citing Baker v. Putnal, 75 F.3d
190, 196 (5th Cir. 1996).
This court has recognized that a district court does not abuse
its discretion by refusing to allow an eleventh-hour amendment.
Banc One Capital Partners Corp. v. Kneipper, 67 F.3d 1187, 1199-
1200 (5th Cir. 1995) (holding that district court did not abuse its
discretion by refusing amendment sought ten months after amendment
deadline, where new matter could have been discovered and asserted
earlier). The amendment sought in this case came seven months
after the amendment deadline, eleven months after the original
complaint was filed and one month before the trial date, which by
that time had been scheduled for almost eight months. We need not
reach the question whether that delay and proximity to the
scheduled trial date justified refusing the amendment, because,
even if the amendment had been allowed, summary judgment would have
been required on the ERISA claim as well.
13 Section 510 of ERISA provides in relevant part that:
It shall be unlawful for any person to discharge ... a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan ... or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the Plan ...
“To recover under section 510, a plaintiff ‘need not show that the
sole reason for his termination was to interfere with pension
rights; however, the plaintiff must show that the employer had the
specific intent to violate ERISA.’” Olitsky v. Spencer Gifts, Inc.,
964 F.2d 1471, 1478 (5th Cir. 1992) (quoting Clark v. Resistoflex
Co., Div. of Unidynamics Corp., 854 F.2d 762, 770 (5th Cir. 1988).
See also Hines v. Massachusetts Mut. Life Ins. Co., 43 F.3d 207,
209 (5th Cir. 1995) (“[a]n essential element of a Section 510 claim
is proof of defendant’s specific discriminatory intent”). As we
have previously explained, the evidence in this case will only
support the conclusion that FCC fired Hypes because of excessive
absenteeism. Therefore, the evidence will not support the
conclusion that he was fired because of his potential eligibility
for long-term benefits under the pension plan any more than the
conclusion that he was terminated due to his age, disability or
eligibility for leave under FMLA.
This court has held that, when deciding whether an amendment
should be allowed, the district court may consider the futility of
the amendment. Ashe, 992 F.2d at 542 (citing Foman v. Davis, 371
U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). It
would be nonsensical for this court to remand this matter to the
district court so that Hypes might amend his complaint to add a
14 claim under Section 510 of ERISA, only to have the district court
properly grant summary judgment on that claim. Therefore, our
conclusion that FCC fired Hypes due to excessive absence, and the
concomitant effect of that finding on Hypes’ ERISA claim, renders
the amendment question moot.
V.
CONCLUSION
Hypes cannot succeed on his claims under the ADEA, LADEA or
FMLA, because the evidence clearly establishes that Hypes was fired
for excessive absenteeism, not because of his Age or requests for
leave. Furthermore, even accepting that excessive absenteeism is
a pretext for Hypes’ disability, Hypes is not “otherwise qualified”
to perform the essential functions of the job, because the
requested flex-time accomodation would not be enough to ensure
Hypes’ regular and predictable presence at work. Hence, Hypes
cannot recover under the ADA or LCRHP. Finally, the district court
did not err in refusing to allow Hypes’ eleventh-hour amendment,
because the newly plead ERISA claim would have been subject to
summary judgment as well. Therefore, we affirm.
AFFIRMED.