Case: 20-10295 Document: 00515755866 Page: 1 Date Filed: 02/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 24, 2021
No. 20-10295
Lyle W. Cayce
Clerk
Jay Weber,
Plaintiff—Appellant,
versus
BNSF Railway Company,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-367
Before Dennis, Higginson, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
BNSF Railway Company terminated Jay Weber, a train dispatcher,
after he violated company attendance guidelines. Weber, who is epileptic,
sued, alleging that BNSF failed to provide reasonable accommodations for
his disability. The district court granted summary judgment in favor of
BNSF, and we affirm.
Case: 20-10295 Document: 00515755866 Page: 2 Date Filed: 02/24/2021
No. 20-10295
I
We provide a general background on BNSF’s attendance guidelines
and procedures before discussing the relevant facts.
A
BNSF’s train dispatchers are responsible for providing the safe and
efficient movement of trains over an assigned dispatching district. Given the
nature of these responsibilities, the train dispatcher position is deemed a
safety-sensitive position.
Since 2002, BNSF has maintained written employee attendance
guidelines. These guidelines prohibit “excessive absenteeism.” An
“incident of absenteeism” includes “any non-recognized absence from work
including, but not limited to, laying off sick without justifiable reason, pattern
layoffs, sporadic absences, tardiness or leaving work early, etc.” Absenteeism
is deemed “excessive when an individual’s incidents of absenteeism
disrupt[] the regular working schedule of dispatchers in their assigned
office.”
If an employee needs to be absent from work—but wishes to comply
with the attendance guidelines—the employee may take medical leave,
vacation, or personal leave, as provided for in the guidelines. BNSF also
maintains an “extra board” of employees, whom BNSF can call upon to fill
a vacancy when a dispatcher is absent from work.
Each month, BNSF management reviews a train dispatcher’s
attendance record to determine the number of absences during the prior year.
If a dispatcher has unexcused absences and management decides to take
disciplinary action, BNSF notifies the dispatcher and conducts a hearing
about the potential attendance guidelines violation. After the hearing, BNSF
may (or may not) discipline the dispatcher based on its progressive policy,
2
Case: 20-10295 Document: 00515755866 Page: 3 Date Filed: 02/24/2021
No. 20-10295
under which the seriousness of the disciplinary measure increases as the
number of attendance violations increases.
B
Jay Weber started at BNSF in 1981 and worked as a train dispatcher
from 1989 until his termination in 2016. During his long tenure at BNSF,
Weber violated the attendance guidelines many times. BNSF disciplined
Weber for some violations, while exercising “leniency” on many other
occasions. In 2014, Bobby Pechal, BNSF’s new General Director of
Transportation Support, implemented a new enforcement strategy,
determining that all train dispatchers, including Weber, should be treated
fairly and consistently under BNSF’s attendance guidelines and thus be held
accountable for violations.
In April 2015, Weber, who had been diagnosed with a brain tumor in
2009, had a seizure, was diagnosed with epilepsy, and entered an epilepsy
monitoring facility for in-patient care. Weber’s neurologist informed BNSF
that Weber could not safely perform his train dispatcher job. BNSF placed
Weber on a medical leave of absence for three months, from late April to late
July. A few days after he was placed on leave, Weber spoke with Sterling
Barker, BNSF’s Director of Scheduling, and requested to be reassigned to
the Assistant Chief Dispatcher position (ACD), a non-safety sensitive
position for which he had been cleared to work. Weber says that Barker
denied his request, “stating that no ACD position was available.” Weber
also claims that he spoke with other BNSF supervisors about being
reassigned to a non-safety sensitive position.
After Weber was cleared to safely resume his train dispatcher duties,
he says that he discussed with his supervisors his need for two
accommodations for his disability. First, he needed to attend doctor visits to
monitor his epilepsy and to maintain his job at BNSF. Second, based on his
3
Case: 20-10295 Document: 00515755866 Page: 4 Date Filed: 02/24/2021
No. 20-10295
neurologist’s advice, he needed to be able to take off days when he had
experienced “triggering events” that might increase the risk of seizure, such
sleeping fewer than four hours.
Weber had several absences in 2015 that violated BNSF’s attendance
guidelines. BNSF management exercised leniency toward Weber for these
2015 violations; however, they gave Weber notice that he was being assessed
for a one-year review period beginning in December 2015 and that any future
attendance guidelines violations “could result in further disciplinary action.”
In the first three months of 2016, Weber had five unexcused absences:
January 20 (sleep deprivation); January 29 (neurologist appointment);
February 9 (sleep deprivation); March 4 (neurosurgeon appointment); and
March 11 (colonoscopy procedure). BNSF management notified Weber that
it was conducting investigations regarding his January, February, and March
2016 absences; at each hearing, BNSF disciplined Weber for excessive
absenteeism. BNSF terminated Weber on May 18, 2016.
Weber sued BNSF under the Americans with Disabilities Act,
Rehabilitation Act, Texas Labor Code, Family and Medical Leave Act, and
Federal Railroad Safety Act, asserting claims of disability discrimination,
failure to accommodate, interference, retaliation, and denial of medical leave.
The only claims relevant to this appeal are Weber’s two failure-toaccommodate claims: the first based on BNSF’s failure to reassign him as an
ACD in 2015; and the second based on BNSF’s failure to provide him with
a medical leave of absence in 2016. 1 The district court granted summary
judgment for BNSF, determining that the evidence raised no dispute of fact
1
Weber withdrew his disability discrimination and FMLA retaliation
claims, and he does not challenge the district court’s grant of summary judgment
in BNSF’s favor on any of the other claims.
4
Case: 20-10295 Document: 00515755866 Page: 5 Date Filed: 02/24/2021
No. 20-10295
and Weber failed to show that he was a “qualified individual with a
disability.” Weber timely appealed.
II
We review summary judgment de novo, “applying the same standard
as the district court.” 2 Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” 3 We view “all facts and evidence in
the light most favorable to the non-moving party.” 4 But “where the nonmovant is the party who would have the burden of proof at trial, that party
must point to evidence supporting [his] claim that raises a genuine issue of
material fact.” 5
III
Both of Weber’s failure-to-accommodate claims—the sole claims on
appeal—concern the same issue: whether Weber is a “qualified individual
with a disability.” Before addressing the parties’ arguments for each claim,
we provide background on the failure-to-accommodate claim and what
Weber must show to survive summary judgment.
A failure-to-accommodate claim requires a showing that: “(1) the
plaintiff is a qualified individual with a disability; (2) the disability and its
consequential limitations were known by the covered employer; and (3) the
2
SCA Promotions, Inc. v. Yahoo!, Inc., 868 F.3d 378, 381 (5th Cir. 2017)
(quoting Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001)).
3
Fed. R. Civ. P. 56(a).
4
Juino v. Livingston Par. Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013)
(citation omitted).
5
Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir.
2017) (citation omitted).
5
Case: 20-10295 Document: 00515755866 Page: 6 Date Filed: 02/24/2021
No. 20-10295
employer failed to make reasonable accommodations for such known
limitations.” 6 We only address the first element because it is a threshold
determination. 7 If Weber is not a qualified individual, our inquiry ends.
The parties do not dispute that Weber has a disability. Instead, the
debate centers on whether Weber is a qualified individual. A qualified
individual is one, “who, with or without reasonable accommodation, can
perform the essential functions of the employment position that such
individual holds or desires.” 8 Whether Weber is a qualified individual thus
depends on his ability to perform the “essential functions” of his job, with or
without “reasonable accommodations.” 9 Regulations define essential
functions as “the fundamental job duties of the employment position the
individual with a disability holds or desires.” 10 And the ADA defines
reasonable accommodations as “job restructuring, part-time or modified
work schedules, reassignment to a vacant position, . . . and other similar
accommodations.” 11
So, to avoid summary judgment on the qualified-individual issue,
Weber must show either (1) that “he could perform the essential functions
of his job in spite of his disability” or (2) “that a reasonable accommodation
of his disability would have enabled him to perform the essential functions of
6
Credeur v. Louisiana, 860 F.3d 785, 792 (5th Cir. 2017) (internal quotation
marks omitted).
7
Id.
8
42 U.S.C. § 12111(8).
9
See Turco v. Hoechst Celanese Corp., 101 F.3d 1090, 1093 (5th Cir. 1996).
10
29 C.F.R. § 1630.2(n)(1).
11
42 U.S.C. § 12111(9)(B).
6
Case: 20-10295 Document: 00515755866 Page: 7 Date Filed: 02/24/2021
No. 20-10295
the job.” 12 Weber fails to make this showing for either of his failure-toaccommodate claims.
A
Regarding his 2015 failure-to-accommodate claim, Weber argues that
the district court erred because it did not engage in a discussion of the merits
of his request to be reassigned to the ACD position. We agree that the district
court failed to address whether Weber was a qualified individual with respect
to the ACD position. But we affirm on the alternative basis that Weber
presents no evidence that this position was available.
The district court mentioned Weber’s 2015 and 2016 failure-toaccommodate claims before proceeding to determine that Weber was not a
qualified individual for purposes of any failure-to-accommodate claim. But
the district court analyzed only the facts related to Weber’s 2016 claim—
whether he could perform his train dispatcher essential functions with or
without reasonable accommodations—and failed to analyze whether Weber
could perform the ACD essential functions. BNSF concedes that the
district court “could have elaborated on the qualification issue as it pertained
specifically to the ACD position.” More importantly, the district court’s
analysis conflicts with the text of the ADA, 13 which defines qualified
individual as one, who “with or without reasonable accommodation, can
perform the essential functions of the employment position that such
12
Turco, 101 F.3d at 1093.
13
Although Weber brings the 2015 claim under the Rehabilitation Act, the
“ADA and the Rehabilitation Act generally are interpreted in pari materia,” and
Congress has instructed courts to construe the statutes to apply the same
standards. Frame v. City of Arlington, 657 F.3d 215, 223–24 (5th Cir. 2011) (en banc)
(citations omitted).
7
Case: 20-10295 Document: 00515755866 Page: 8 Date Filed: 02/24/2021
No. 20-10295
individual holds or desires.” 14 Thus, the district court erred because it did not
determine whether Weber was a qualified individual for purposes of the
ACD position that he desired to hold.
Although the district court erred, we may affirm summary judgment
“on any ground supported by the record, including one not reached by the
district court.” 15 BNSF offers several alternative grounds for affirming. 16
We agree that summary judgment for BNSF should be affirmed because
Weber presents no evidence that the ACD position was available or that he
was qualified for that position.
Weber can establish that he is a qualified individual—and thus defeat
summary judgment—if he can show “that a reasonable accommodation of
his disability would have enabled him to perform the essential functions of
the job.” 17 Reassignment may be a reasonable accommodation, but Weber
“bears the burden of proving that an available position exists that he was
qualified for and could, with reasonable accommodations, perform.” 18
Weber must offer evidence “showing that any of the requested positions are,
or were, available” and showing that “he possesses the requisite skill,
experience, education, and other job-related requirements to qualify for these
positions.” 19 Viewing the facts in the light most favorable to Weber, Weber
14
42 U.S.C. § 12111(8) (emphasis added).
15
Gilbert v. Donahue, 751 F.3d 303, 311 (5th Cir. 2014) (quotation omitted).
16
Because we affirm on the grounds that Weber presents no evidence that
BNSF had any available ACD positions, we do not address BNSF’s alternative
grounds for affirming the district court.
17
Turco, 101 F.3d at 1093.
18
Moss, 851 F.3d at 418 (citations omitted).
19
Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997). See
also Burch v. City of Nacogdoches, 174 F.3d 615, 622 (5th Cir. 1999) (“[T]he law
requires [the plaintiff] also to prove that he is qualified for that [requested
8
Case: 20-10295 Document: 00515755866 Page: 9 Date Filed: 02/24/2021
No. 20-10295
asked his supervisor about the ACD position, he was denied that position,
and he had subsequent conversations with other BNSF supervisors about
not being assigned to the position. But Weber presents no evidence that the
ACD position was vacant. And he presents no evidence that he had the
requisite qualifications for that position. Thus, Weber fails to bear his burden
of showing that he was a qualified individual as to the 2015 claim. Summary
judgment in favor of BNSF was thus appropriate on this basis.
B
Regarding his 2016 failure-to-accommodate claim, Weber argues that
the district court erred when it found that he was not a qualified individual
because he could not perform an essential function of his train dispatcher
job—regular worksite attendance—with or without reasonable
accommodations. Weber claims that regular worksite attendance is not an
essential job function because “BNSF granted [him] managerial leniency
numerous times,” and this practice belies BNSF’s judgment that regular
attendance was essential.
We disagree. We have observed that “there is a general consensus
among courts, including ours, that regular work-site attendance is an
essential function of most jobs.” 20 To determine whether a function is
essential, we look to several factors, such as the “employer’s judgment as to
which functions are essential” and “the consequences of not requiring the
reassignment] position.”); Gonzales v. City of New Braunfels, 176 F.3d 834, 839 (5th
Cir. 1999) (plaintiff “must first satisfy his burden of proving that he is qualified,
with or without reasonable accommodation, for the [desired] job”).
20
Credeur, 860 F.3d at 793 (citing Hypes on Behalf of Hypes v. First
Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998) (per curiam) (collecting cases)).
9
Case: 20-10295 Document: 00515755866 Page: 10 Date Filed: 02/24/2021
No. 20-10295
incumbent to perform the function.” 21 The text of the ADA 22 and its
regulations 23 require us to “give greatest weight” to the “employer’s
judgment” factor, though we must “evaluate the employer’s words
alongside its policies and practices.” 24
Pechal, BNSF’s General Director of Transportation Support from
2014–2018, stated in his declaration that regular attendance is an essential
function of the train dispatcher position. Plus, BNSF’s longstanding,
written attendance policy supports his assertion: The guidelines explicitly
provide that “regular, punctual attendance at work” is a “basic condition[]
of employment” and outline the disciplinary consequences that result from
an employee’s excessive absenteeism. Other factors also indicate that regular
attendance is an essential function of being a train dispatcher. For example,
the “consequences” factor supports our determination that regular worksite
attendance is an essential function because, if a train dispatcher does not
show up to work, then BNSF must provide coverage to fill that vacancy. 25
Therefore, BNSF’s judgment, its attendance policy, additional factors, and
our precedent all support our determination that regular workplace
attendance was an essential function of Weber’s train dispatcher position.
Weber presents several counterarguments, but each lacks merit. First,
citing our decision in Carmona v. Southwest Airlines Company, Weber argues
that regular attendance may not be an essential job function when an
21
29 C.F.R. § 1630.2(n)(3)(i)–(vii).
22
42 U.S.C. § 12111(8) (“[C]onsideration shall be given to the employer’s
judgment as to what functions of a job are essential.”) (emphasis added).
23
29 C.F.R. § 1630.2(n)(3)(i).
24
Credeur, 860 F.3d at 792, 794 (citation omitted).
25
29 C.F.R. § 1630.2(n)(iv) (“consequences of not requiring the
incumbent to perform the function”).
10
Case: 20-10295 Document: 00515755866 Page: 11 Date Filed: 02/24/2021
No. 20-10295
employer grants employees frequent leave. 26 Weber’s reliance on Carmona
is misplaced. Unlike the “extremely lenient” attendance policy in Carmona,
BNSF maintains and enforces a strict written attendance policy with
progressive disciplinary measures. 27 Weber also claims that “BNSF granted
[him] managerial leniency numerous times but then ‘fast-tracked’ his
discipline.” While Weber certainly had been shown managerial leniency on
past occasions, BNSF notified Weber before the five incidents of absenteeism
for which he was disciplined—and ultimately terminated—that he was being
assessed for a one-year period and that any future attendance guidelines
violations “could result in further disciplinary action.” This argument thus
fails.
Second, Weber argues that, with his proposed reasonable
accommodations—medical leave to attend “mandatory follow-up doctors’
appointments” and excused absences when “he became sleep-deprived and
was a risk to safety”—he could have performed the essential functions of his
job, including regular attendance. But Weber does not support this argument
with any Fifth Circuit caselaw. Weber also emphasizes that he was
terminated for a “handful of absences” and alleges that BNSF could have
reasonably accommodated these absences because BNSF maintains an extra
board to fill in employee vacancies. Assuming Weber’s proposed
accommodations were reasonable, they would not enable him to perform the
essential function of regular attendance. Neither Weber nor BNSF could
determine in advance how often Weber would become sleep-deprived (i.e.
how often he would sleep fewer than four hours) and would need to take
medical leave. Because Weber cannot show “that a reasonable
26
604 F.3d 848 (5th Cir. 2010).
27
Id. at 860.
11
Case: 20-10295 Document: 00515755866 Page: 12 Date Filed: 02/24/2021
No. 20-10295
accommodation of his disability would have enabled him to perform the
essential functions of the job,” he fails to show that he is a qualified
individual. 28
Finally, Weber argues that BNSF cannot invoke the “undue
hardship” exception to an employer’s obligation to provide reasonable
accommodations and that BNSF had a duty to engage in the interactive
process with Weber but failed to do so. Both of these arguments concern
other elements of a failure-to-accommodate claim. We need not address
these arguments because Weber fails to make the threshold showing that he
is a qualified individual for purposes of his 2016 failure-to-accommodate
claim. 29
Because Weber fails to show that he could perform the essential
functions of his train dispatcher position, with or without reasonable
accommodations, he is not a qualified individual with a disability, and
summary judgment for BNSF on the 2016 failure-to-accommodate claim
was appropriate. 30
IV
For the reasons above, we AFFIRM summary judgment in BNSF’s
favor on both Weber’s 2015 and 2016 failure-to-accommodate claims.
28
Turco, 101 F.3d at 1093.
29
See Credeur, 860 F.3d at 792.
30
Because we affirm the district court on its stated grounds, we do not
address BNSF’s alternative grounds for affirming the district court.
12
