IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-30307 Summary Calendar

TIMOTHY SCOTT HEFFERN,

Plaintiff-Appellant,

v.

WILLIS-KNIGHTON MEDICAL CENTER,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (96-CV-1026) _________________________________________________________________ September 18, 1997

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Timothy Heffern brought suit under both the Americans with

Disabilities Act (ADA) and the Family and Medical Leave Act

(FMLA) alleging that defendant Willis-Knighton Medical Center

violated his rights by failing to reinstate him in his former

position upon his completion of a substance abuse treatment

program. The district court granted Willis-Knighton’s motion for

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. summary judgment, and Heffern appeals. We affirm the decision of

the district court.

I. BACKGROUND

From July 6, 1993 until October 4, 1994, Willis-Knighton

Medical Center employed Timothy Heffern, a registered nurse, as

the cardiology coordinator for its electrophysiology laboratory.

Beginning on October 5, 1994, Heffern took a leave of absence

from his job in order to undergo treatment for substance abuse.

Heffern was initially treated on an inpatient basis at Willis-

Knighton Medical Center, but he was discharged without completing

the program because he failed to abide by program rules and

regulations. Heffern was then admitted to and successfully

completed CPC Brentwood Hospital’s outpatient Addictive Disease

Recovery Program.

Upon entering the Brentwood program, Heffern signed a

Program Agreement with the Recovering Nurse Program of the

Louisiana State Board of Nursing. Among other things, the

Program Agreement required that Heffern submit to continued

monitoring and provided that for at least one year following

treatment Heffern could not work in high stress areas or

unsupervised positions. As a result of the restrictions

contained in the Program Agreement, and on the advice of Barbara

McGill, the Director of the Recovering Nurse Program, Heffern was

2 reassigned to the Renal Dialysis Unit when he returned to work in

December of 1994. The reassignment was based on the fact that

the electrophysiology department was a “critical care” unit and

work in the unit was therefore considered highly stressful. As a

caveat to her transfer recommendation, however, McGill noted that

Heffern could resume work as the cardiology coordinator in the

electrophysiology department only if he could be excused from

providing direct patient care. Heffern’s transfer resulted in a

substantial decrease in salary, and he was therefore dissatisfied

with the position.

After the one-year period had elapsed, in February of 1996,

Heffern requested a transfer back to the electrophysiology unit.

His request was denied pursuant to a company policy prohibiting

the transfer of any employee who had received a corrective action

notice within six months prior to the time of the transfer

request. At the time of his request for a transfer, Heffern had

received eight corrective action notices in the preceding six

months. Heffern subsequently filed this lawsuit alleging that

his assignment to the Renal Dialysis Unit and Willis-Knighton’s

later refusal to transfer him back to the electrophysiology lab

violated his rights under both the ADA and the FMLA.

II. STANDARD OF REVIEW

3 We review the granting of a motion for summary judgment de

novo, applying the same criteria used by the district court in

the first instance. Nichols v. Loral Vought Systems Corp.,

(5th Cir. 1996). In reviewing the evidence contained

in the record, we view the facts and inferences to be drawn

therefrom in the light most favorable to the nonmoving party.

Summary judgment is appropriate only where there is “no

genuine issue as to any material fact.” Fed. R. Civ. P. 56(c).

A genuine dispute of fact exists where “the evidence is such that

a reasonable jury could return a verdict for the nonmoving

party,” but a fact is material only if its determination “might

affect the outcome of the suit under governing law.” Anderson v.

Liberty Lobby,

(1985).

III. DISCUSSION

Heffern contends that the district court erred in granting

defendant Willis-Knighton’s motion for summary judgment. He

focuses on two main points of error under the ADA, the first

relating to his claim that he is protected by the ADA as a

qualified individual with a disability, and the second relating

to his claim that direct patient contact was not an “essential

function” of the job of cardiac coordinator and that “reasonable

accommodation” by Willis-Knighton would have made his

reinstatement as cardiac coordinator feasible. As to both these

4 claims, Heffern insists that fact questions exist, precluding

summary judgment. Heffern further argues that fact questions

exist regarding his claim that Willis-Knighton violated his

rights under the FMLA by failing to return him to his previous

position or to an equivalent one upon his return from medical

leave. We address each of these issues in turn.

A. ADA Claim

Heffern’s first argument relates to the district court’s

conclusion that Heffern was not protected by the ADA and was

therefore ineligible to bring a claim under that statute. We

need not address that argument because even if Heffern were to

qualify as a disabled individual under the ADA, he would

nevertheless be required to prove a prima facie case of

discrimination in order to survive a motion for summary judgment.

Because the record would permit only one conclusion -- Heffern

was not qualified for the position of cardiology coordinator at

the time of his reinstatement -- Heffern has failed to prove a

prima facie case of discrimination.

The ADA defines a “qualified individual with a disability”

as “an individual with a disability who, with or without

reasonable accommodation, can perform the essential functions of

the employment position that such individual holds or desires.”

(8) (1995). The burden is on the plaintiff in

5 an ADA discrimination case to show that “(1) he or she suffers

from a disability; (2) he or she is qualified for the job; (3) he

or she was subject to an adverse employment action; and (4) he or

she was replaced by a non-disabled person or was treated less

favorably than non-disabled employees.” Daigle v. Liberty Life

Insurance Co.,

(5th Cir. 1995).

Due to his agreement with the Recovering Nurse Program,

Heffern was prohibited from working in any position that was

highly stressful or unsupervised. Moreover, Barbara McGill

specifically recommended that he not return to the

electrophysiology lab unless he was excused from patient care.

Thus, in order to determine if Heffern was qualified for the

position of cardiology coordinator of the electrophysiology lab,

the district court was called upon to determine whether patient

care is an essential function of that position. If patient care

is an essential function of the job, the district court was then

required to determine whether reasonable accommodation by Willis-

Knighton would have made it possible for Heffern to perform it.

According to the EEOC regulations promulgated to implement

the ADA, the essential functions of a job are those that are the

“fundamental job duties of the employment position.”

(n)(1) (1997). Along with other factors, the regulations

indicate that “[w]ritten job descriptions” prepared prior to

advertising or interviewing applicants and “the employer’s

judgment as to which functions are essential” may be considered.

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(n)(3). Heffern’s 1994 pre-printed evaluation

form contained the following statements as part of the job

description: ”Supervises or assists in all departmental

procedures,” . . . “[a]ssures that patients receive maximum care

services in accordance with established methods and techniques

under the supervision of the Cardiologists.” In addition, the

evaluation form noted that “[t]he above statements reflect the

general duties considered necessary to describe the principal

functions of the job as identified, and shall not be considered

as a detailed description of all the work requirements that may

be inherent in the position.” Based on this job description, the

district court found that providing patient care was an essential

function of the job of cardiac coordinator of the

electrophysiology lab.

Heffern argues that this description is insufficient to

support summary judgment, but there is in fact additional

evidence in the record to support the district court’s decision.

Kathy Rowland, Administrative Director of the Cardiology

Departments, testified that the job is “highly demanding” and

“required substantial patient contact.” In addition, Dr. Scott

Wiggins, a physician who worked in the electrophysiology lab,

testified that the cardiac coordinator provides direct patient

care and that the job was stressful. Finally, although Heffern’s

affidavit contains a line to the effect that the cardiac

coordinator position did not require “substantial patient

7 contact,” Heffern goes on to state that, “I did have substantial

patient contact while I held it since I was a qualified and

unrestricted registered nurse.” Nevertheless, Heffern argues

that although the department is generally staffed with four

people -- two registered nurses, a physician, and an x-ray

technician -- there was no requirement that either nurse be the

cardiac coordinator. Although it may be true that the positions

of nurse and cardiac coordinator can be severed, the EEOC

regulations promulgated to implement the ADA specify that a

“function may be essential because of the limited number of

employees available among whom the performance of that job

function can be distributed.”

(n)(2)(ii)

(1997). In this case, in order to relieve the cardiac

coordinator position of direct patient care responsibilities,

Willis-Knighton would have had to hire a fifth person to work in

the electrophysiology lab.

In sum, the summary judgment evidence (including evidence

drawn from Heffern’s own experience) indicates that patient care

was an essential function of the job of cardiac coordinator.

Although Heffern disputes this conclusion, he presents no

evidence other than a bare conclusion, undermined by his own

experience, in his own affidavit to support his contention, and

he therefore has failed to create a genuine issue of material

fact that precludes summary judgment on this claim.

8 Having determined that patient care is an essential function

of the job of cardiac coordinator, the next question that we must

address is whether Willis-Knighton could have reasonably

accommodated Heffern’s disability by redefining the position to

exclude patient care.

Often, reasonable accommodation refers to the modification

of the job description or of the work environment in such a way

as to allow the disabled individual to perform the essential

function at issue.

(o) (1997). In this case,

however, the Program Agreement that Heffern signed prohibited him

from working without supervision and from providing patient care

in a critical care unit. Thus, the only possible way to

accommodate Heffern’s disability was to eliminate patient care

from the responsibilities of the cardiac coordinator. This court

has previously held that requiring an employer to use another

employee to substitute for the portions of the job that the

disabled individual cannot perform “exceeds reasonable

accommodation.” Bradley v. University of Texas M.D. Anderson

Cancer Center,

(5th Cir. 1993), cert. denied,

(1994); see also EEOC v. Amego, Inc.,

(1st

Cir. 1997) (holding, in similar employment dispute, that hiring

additional staff to compensate for plaintiff’s disability went

beyond reasonable accommodation).

The EEOC guidelines indicate that reasonable accommodation

also may include “reassignment to a vacant position.” 29 C.F.R.

9 § 1630.2(o)(2)(ii) (1997). In this case, Heffern was in fact

reassigned to another position for which he was qualified. We

therefore agree with the district court’s finding that on this

record, there was no reasonable accommodation which would have

allowed Heffern to resume his position as cardiac coordinator,

and that Willis-Knighton did in fact reasonably accommodate

Heffern to the extent possible by reassigning him to a position

for which he was qualified.

B. FMLA

Heffern claims that a similar fact question exists relating

to his claim that Willis-Knighton also violated his rights under

the FMLA by failing to either return him to his previous position

or reassign him to an equivalent one. We disagree.

The FMLA provides that an eligible employee who takes

medical or family leave is entitled to “be restored by the

employer to the position of employment held by the employee when

the leave commenced” or to be “restored to an equivalent position

with equivalent employment benefits, pay, and other terms and

conditions of employment.”

(a)(1) (Supp. 1997).

Because the FMLA is a relatively new statute, few courts have had

the opportunity to interpret it. Nevertheless, those that have

considered the statute have applied the burden-shifting framework

that was introduced in McDonnell Douglas Corp. v. Green,

792 (1973). See, e.g., Kaylor v. Fannin Regional Hospital, Inc.,

(N.D. Ga. 1996) (“The burden shifting

approach best effectuates the intent of the FMLA to prohibit

discrimination against employees using FMLA leave because it can

most accurately balance providing employees a broader basis for

proving an employer violated the FMLA while also protecting the

interests of employers.”); see also Morgan v. Hilti, Inc.,

, 1323 n.3 (10th Cir. 1997) (applying McDonnell Douglas

analysis to FMLA claim); Oswalt v. Sara Lee Corp,

(N.D. Miss. 1995) (same), aff’d

(5th Cir.

1996).

Under the McDonnell Douglas framework, the plaintiff must

establish a prima facie case of discrimination. In other words,

the plaintiff “must produce evidence that he or she is protected

under the FMLA, that he or she suffered an adverse employment

decision, and . . . that the adverse decision was made because of

the plaintiff’s request for leave.” Oswalt,

.

Once the plaintiff establishes a prima facie case, then the

burden shifts to the defendant, who must provide a legitimate and

non-discriminatory reason for the action.

Once the

defendant has introduced an appropriate reason, then the burden

again shifts to the plaintiff to provide evidence that the reason

given by the defendant was merely a pretext.

In the present case, Heffern has presented no evidence that

the adverse decision was made on the basis of his taking FMLA

11 leave. Moreover, even if Heffern had proved a prima facie case,

Willis-Knighton has provided a legitimate reason for the

transfer--the Program Agreement’s restrictions on his working

conditions. In addition, Willis-Knighton has provided a

legitimate reason, in the form of an existing company policy not

to transfer those with corrective action notices in the last six

months, for refusing to transfer Heffern back to the

electrophysiology department upon his request. Heffern has

introduced no evidence tending to show that these reasons were

pretextual or illegitimate. Thus, as the district court

correctly determined, Willis-Knighton did not violate the FMLA by

reassigning Heffern to the Renal Dialysis Unit upon his return or

by later refusing to transfer him.

IV. CONCLUSION

For the foregoing reasons, we find that the district court

properly granted summary judgment in favor of Willis-Knighton.

The judgment is AFFIRMED.

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