UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30259

DOROTHY A. DEASON,

Plaintiff - Appellant,

VERSUS

DUKE ENERGY TRUNKLINE LNG; CMS ENERGY TRUNKLINE LNG,

Defendants - Appellees.

Appeal from the United States District Court For the Western District of Louisiana, Lake Charles 99-CV-2110 March 20, 2002

Before ALDISERT1, DAVIS, and PARKER, Circuit Judges.

PER CURIAM*:

This is an appeal of the district court’s grant of summary

judgment on behalf of defendants Duke Energy/Trunkline LNG (“Duke”)

1 Circuit Judge of the Third Circuit Court of Appeals, sitting by designation. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

1 and CMS Energy/Trunkline LNG (“CMS”).

I. PROCEEDINGS IN THE DISTRICT COURT

Dorothy A. Deason (“Deason”) filed her original complaint in

the 14th Judicial Court of Calcasieu Parish, Louisiana, on October

20, 1999. She alleged that she had been illegally terminated

because of a disability, that she had been subjected to sexual

harassment and racial epithets by her employer and that her illegal

termination was retaliatory because of her harassment complaints

and for seeking long-term disability benefits. In addition, she

claimed that the defendants had intentionally inflicted emotional

distress upon her. She made all of her claims under various

Louisiana state statutes.

Duke and CMS removed the complaint to federal district court

on November 17, 1999, under

, federal diversity

jurisdiction. Deason filed a complaint dated November 9, 1999,

with the Equal Employment Opportunity Commission (“EEOC”) and the

Louisiana Commission on Human Rights, alleging employment

discrimination on the basis of disability (but not race). The EEOC

closed its file on December 14, 1999, because Deason’s “allegations

did not involve a disability that is covered by the Americans with

Disabilities Act.” The EEOC did issue a “right to sue” letter.

The district court granted Deason leave to file an amended

complaint, which she did on March 14, 2000, alleging her claims

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,

2 et. seq., the Americans with Disabilities Act (“ADA”),

, et. seq., and

. She retained her

retaliation and emotional distress claims under Louisiana state

law.

CMS and Duke moved, separately, for summary judgment. CMS

argued that there was no evidence that it was ever Deason’s

employer. Duke argued that Deason had not stated a claim under the

ADA, that her harassment complaints were proscribed, that her

retaliation claim had been abandoned and that she failed to

establish a claim of emotional distress. On January 23, 2001, the

district court entered a memorandum ruling which granted summary

judgment to both Duke and CMS.

II. BACKGROUND

Deason began work with Trunkline LNG, then a Duke division, in

March 1989. She rose from the position of Controller “C” to

Controller “A” while so employed.

On two occasions, Deason either discussed or complained of

having heard sexually oriented comments and racial epithets with

Duke’s Site Manager, David Cobb. Those occasions were in 1994 and

1996. The record is unclear whether any of the comments were

directed toward Deason herself. She does not assert that she took

any other action and has provided no supporting evidence.

On August 12, 1998, she underwent a hysterectomy and was not

released by her doctor to return to work until October 15, 1998.

3 Upon being released to return to work, Duke Energy required Deason

to undergo a Functional Capacity Evaluation (FCE) before resuming

her duties. While completing the FCE, Deason tore a rotator cuff,

which required surgery in November 1998 followed by physical

therapy. She was released to return to work in August 1999 with a

ten percent residual disability. From August 1998 to August 1999,

Deason received either short or long-term disability leave and

compensation as a Duke employee.

During this time, Duke and CMS entered negotiations for CMS to

purchase the Trunkline LNG operation from Duke. The impending sale

was announced to Duke’s employees and Deason was informed of the

sale in November 1998. One of the terms of the sale was that any

individual who was out on long-term disability at the time of the

sale would be retained by Duke and would not become a CMS employee.

The sale was completed in March 1999. Deason asserts she did not

learn of the exclusion clause and her status as a retained employee

until May 1999. She remained a Duke employee and continued to

receive long-term disability compensation and leave until she was

released to return to work in August 1999.

Upon Deason’s return, Duke offered her another job as an

offshore Utility Pipeliner at her Controller “A” rate of pay of $23

an hour although the Utility Pipeliner job normally paid less. She

refused that offer for two reasons: first, taking the job would

have required her to be separated from her terminally ill son for

4 up to three weeks at a time and, second, the job required training

in downed helicopter evacuation in the water and she did not swim.

She was offered a severance package in the alternative, which

amounted to a lump sum of $42,350. She refused that alternative as

well, and commenced this lawsuit. She alleged that Duke had

constructive knowledge of her personal situation which it knew

would preclude her from taking the job accommodation and that

Duke’s actions were aimed at her termination in retaliation for her

earlier complaints and for her disability claims. She further

alleged that CMS is liable as a successor employer.

Deason now appeals the district court’s ruling and raises five

issues on appeal: whether the district court erred by (1)

determining that she was neither disabled nor regarded as disabled

by Duke and CMS as defined by the ADA; (2) finding that the

alternative job offered by Duke was a reasonable accommodation

under the ADA; (3) determining that she had not suffered an adverse

employment action based on the exclusion clause in the terms of the

sale of the Trunkline LNG division from Duke to CMS; (4) finding

that CMS never employed her; and (5) finding that Duke did not

retaliate against her for her complaints of racial and sexual

harassment and disability discrimination under Louisiana Revised

Statute 51:2256, et. seq.

III. STANDARD OF REVIEW

This court conducts a de novo review of a grant of summary

5 judgment, ensuring that no genuine issue of material fact exists

and that judgment in favor of the appellee was warranted as a

matter of law. See Haynes v. Pennzoil Co.,

(5th

Cir. 2000). Under Federal Rule of Civil Procedure 56(c), summary

judgment is appropriate when the evidence, viewed in the light most

favorable to the non-movant, reflects no genuine issues of material

fact. See Celotex Corp. v. Catrett,

,

,

(1986); Hall v. Gillman, Inc.,

(5th Cir. 1996).

IV. ANALYSIS

In order to establish a prima facie case of discrimination

under the ADA, Deason must demonstrate that: (1) she has a

disability; (2) she is a qualified individual for the job in

question; and (3) that an adverse employment decision was made

solely because of her disability. See Still v. Freeport-McMoran,

Inc.,

(5th Cir. 1997).

A. Disability

The parties dispute whether Deason’s rotator cuff injury2

2 Deason’s earlier hysterectomy, which first placed her on either short or long-term disability status with Duke, is not the subject of her disability claim here. She recovered fully from that surgery. The only disability she asserts to be limiting under the ADA is the residual disability from her rotator cuff surgery. As a result of that surgery, she develops pain when working overhead for an extended period of time and has a limited range of motion behind her back, restricting, for example, her ability to wash herself or to close a brassiere.

6 constituted an ADA disability, either while she was on long-term

disability or after she was medically released to return to duty

(albeit with a ten percent residual disability). The district

court applied the ADA’s definition of a “disability” under

(1)3 to determine that Deason’s rotator cuff

condition did not substantially limit any of her major life

activities. The district court also determined that Deason did not

have a record of being substantially limited in a major life

activity and was not regarded by Duke as being substantially

limited in a major life activity. Therefore, the district court

found that Deason failed to state a prima facie claim under the

ADA. Although we generally agree with the district court’s

“disability” determination, the rationale for this determination

needs to be further explained based upon Deason’s theory of the

case.4

Deason contends that the relevant date for determining whether

she was disabled for purposes of the ADA was the date of the

adverse employment action. In her view, the adverse employment

3 A disability under the ADA is (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such impairment; or (3) being regarded as having such impairment.

(1). 4 We agree with the district court’s reasons for finding that Deason did not have a record of such impairment and was not regarded as having such an impairment. Therefore, we will only delve into whether Deason’s rotator cuff condition substantially limited her in one or more of the major life activities.

7 action occurred on March 29, 1999 when Duke sold its LNG Trunkline

Division to CMS. Therefore, whether or not she was substantially

limited in any major life activity, must be evaluated by looking to

her rotator cuff condition as it existed on March 29, 1999.

Deason correctly asserts that the “substantially limited”

inquiry5 must be made by looking to the nature and severity of the

condition as it existed at the time of the adverse employment

action, the parties’ expectations at the time of the adverse

employment action concerning whether the condition would improve or

fully heal, and the parties’ expectations at the time of the

adverse employment action concerning the long-term impact of the

condition. See Eber v. Harris County Hospital Dist.,

(S.D. Tex. 2001) (“[a]n ADA claimant must prove that he

was disabled at the time of the alleged discriminatory act”).

The district court reasoned that Deason had not made a prima

facie case of disability because: (1) her rotator cuff injury was

nearly completely healed by September 19996; and (2) Deason’s

doctor released her to go back to work without restrictions on

5 The EEOC regulations instruct that the following factors be considered in determining whether an individual is substantially limited in a major life activity: “[t]he nature and severity of the impairment; [t]he duration or expected duration of the impairment; and [t]he permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment.”

(j)(2)(i)-(iii) (2001). 6 The district court noted that after completion of physical therapy Deason still had a 10% residual disability which prevented her from working over her head for extended periods of time.

8 August 24, 1999. Although the district court did not specifically

address how the parties’ viewed the rotator cuff impairment on

March 29, 1999, we find ample evidence in the record to suggest

that both parties believed in March 1999 that Deason would recover

from the rotator cuff condition and return to work at Duke.

Therefore, evaluating her alleged disability as of March 1999, we

still find that Deason did not make out a prima facie case of

disability.7

As would be expected when one undergoes shoulder surgery,

Deason still has lingering stiffness in the shoulder area and may

have difficulty working overhead for extended periods of time.

However, her own testimony indicates that the shoulder injury only

affects her ability to care for herself a little bit (she is

dependent on bra closure). As a matter of law, this type of slight

limitation does not substantially limit her in the major life

activity of caring for herself.

Neither can we accept Deason’s argument that being unable to

work for extended periods of time overhead makes her substantially

limited in the major life activities of performing manual tasks or

working. The United States Supreme Court’s most recent ADA

decision forecloses Deason’s “manual tasks” argument. See Toyota

7 Because we find that Deason has not raised a genuine issue of material fact concerning whether she was disabled under the ADA, the second, third, and fourth issues which she raises in this appeal are moot and will not be addressed.

9 Motor Manufacturing Kentucky, Inc. v. Williams,

(2002)(repetitive work with hands and arms extended at or above

shoulder level for extended periods of time is not an important

part of most people’s daily lives and therefore is not sufficient

proof that an individual is substantially limited in performing

manual tasks).

Deason’s contention that she is substantially limited in the

major life activity of working is similarly unpersuasive under both

the EEOC regulations and our Circuit’s jurisprudence because,

despite her shoulder problem, she can still perform a class of jobs

or a broad range of jobs. See

(j)(3) (2001)(“With

respect to the major life activity of working, the term

substantially limits means significantly restricted in the ability

to perform either a class of jobs or a broad range of jobs in

various classes as compared to the average person having comparable

training, skills and abilities”); see also Dutcher v. Ingalls

Shipbuilding,

(5th Cir. 1995)(“inability to

perform one aspect of a job while retaining the ability to perform

the work in general does not amount to substantial limitation of

the activity of working.”). Ray v. Glidden Co.,

(5th Cir. 1996) (plaintiff’s inability to perform continuous heavy

lifting did not constitute a substantial limitation on a major life

activity); Pryor v. Trane Company,

(5th Cir.

1998) (upholding jury determination that individual who could not

10 perform continuous lifting from shoulder to overhead and ability to

push and pull was below average was not substantially limited in a

major life activity). Indeed, Deason contends that she could have

performed her old Controller “A” job at Duke despite her shoulder

condition. Further, while she claims she could not have performed

the job offered to her by Duke in September 1999, the Utility

Pipeliner position, the reasons for her inability to do so are

unrelated to her shoulder condition.

B. Retaliation

Deason claims that Duke retaliated against her because she had

previously made discrimination complaints. She suggests that Duke

retaliated in three ways. First, Duke did not tell her about the

buyout provision until six weeks after the sale became final.

Second, Duke did not transfer her over to CMS at the time of sale.

Third, Duke did not provide COBRA benefits information to her in a

timely fashion.

Deason has abandoned any claim under Title VII but has couched

her retaliation claim under Louisiana anti-retaliation statutes.

The analysis of a retaliation claim following a complaint of sexual

harassment and the use of racial epithets is the same under

Louisiana law as it is under Title VII. See McMillon v. Corridan,

No. 97-3981,

, at *8-9 (E.D. La. Aug.

31, 1998). To prevail on a claim of retaliation under Title VII

and hence Louisiana law, Deason must show that: (1) she engaged in

11 a protected activity; (2) an adverse employment action occurred;

and (3) a causal connection existed between the protected activity

and the adverse employment action. Dollis v. Rubin,

(5th Cir. 1995).

In our view, Duke’s delays in informing Deason about the

buyout provision and sending her the COBRA benefits information do

not constitute an adverse employment action under our case law

because they do not concern “ultimate employment decisions.”

Dollis,

. On the other hand, whether Duke’s

retaining of Deason pursuant to the exclusionary terms of the long-

term disability buyout provision and subsequent offer of a new

position to Deason at her former salary constitutes an adverse

employment action under our case law is less than crystal clear.

Fortunately, however, we need not decide this issue because,

irrespective of the adverse employment action prong, Deason has not

presented sufficient evidence on the “causal connection” prong to

survive summary judgment on her retaliation claim.8

8 At the prima facie stage, the proof required to raise a fact issue on the “causal connection” prong is not as stringent as the “but for” standard. Evans v. City of Houston,

(5th Cir. 2001). Applying this lesser standard, we still find that Deason has not raised a fact issue on this final prong for two reasons. First, a three year time gap exists between her discrimination complaints and the alleged adverse employment actions. There is no indication that Duke treated Deason unfairly or attempted to retaliate against her during this three year period. Second, the mere fact that Deason was the only employee caught in the snares of the long-term disability buyout provision does not lead to a reasonable inference that Duke devised the provision to punish Deason for her past complaints.

12 V. CONCLUSION

In sum, Deason has not raised a genuine issue of material fact

concerning whether she had an ADA disability. Neither has she

presented sufficient summary judgment evidence to raise a fact

issue concerning whether Duke retaliated against her for making

past discrimination complaints. Therefore, her ADA claims against

Duke and CMS and retaliation claim against Duke fail as a matter of

law. The judgment of the district court is hereby AFFIRMED in all

respects.

AFFIRMED.

13