United States Court of Appeals Fifth Circuit F I L E D December 10, 2003 In the Charles R. Fulbruge III United States Court of Appeals Clerk for the Fifth Circuit

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m 02-31195 Summary Calendar _______________

PETER VITALE,

Plaintiff-Appellant,

VERSUS

GEORGIA GULF CORPORATION,

Defendant-Appellee.

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m 02-31264 Summary Calendar _______________

PETER VITALE,

Plaintiff-Appellee,

VERSUS

GEORGIA GULF CORPORATION,

Defendant-Appellant. _________________________

Appeals from the United States District Court for the Middle District of Louisiana m 00-858-D _________________________

Before SMITH, DEMOSS, and STEWART, original position.3 After leaving Georgia Gulf, Circuit Judges. he sued.4 At the conclusion of the jury trial, Georgia Gulf successfully moved for j.m.l., JERRY E. SMITH, Circuit Judge:* then unsuccessfully sought attorney’s fees pur- suant to

. Peter Vitale sued Georgia Gulf Corporation (“Georgia Gulf”) under the Americans with II. Disabilities Act (“ADA”),

We review a j.m.l. de novo. Delano-Pyle v. et seq. He appeals a FED. R. CIV. P. 50 judg- Victoria County,

(5th Cir. ment as a matter of law (“j.m.l.”). Georgia 2002), cert. denied,

(2003). We Gulf appeals the denial of attorney’s fees. review all the evidence and “must draw all rea- Finding no error, we affirm. sonable inferences in favor of the nonmoving party.” Reeves v. Sanderson Plumbing I. Prods., Inc.,

(2000). “[A] Georgia Gulf employed Vitale in a variety court may not render [j.m.l.] unless a party has of capacities.1 While working as a pipefitter’s been fully heard on an issue and there is no le- helper, Vitale injured his back. Because a neu- gally sufficient evidentiary basis for a rosurgeon then limited the kind of work Vitale reasonable jury to find for that party on that could perform,2 Vitale could not return to his issue.” Fitzgerald v. Weasler Eng’g, Inc.,

(5th Cir.), amended, 274 F.3d

* Pursuant to 5TH CIR. R. 47.5, the court has de- 2 termined that this opinion should not be published (...continued) and is not precedent except under the limited cir- restrictions are permanent . . . because of the cumstances set forth in 5TH CIR. R. 47.5.4. degenerative condition of his lumbar spine.” 3 1 Vitale worked as a maintenance technician, in- Georgia Gulf maintains that Vitale’s doctors volving a number of duties, including fire-watch- never released him to work for it. Vitale contends ing, hold-watching, and pipe-fitting. that he pursued “light duty” positions but was re- peatedly told that none was available. Adopting ei- 2 The neurosurgeon stated Vitale cannot lift ther contention does not affect this appeal. “over 10 pounds frequently or 20 pounds occa- 4 sionally. He may not sit or stand over one hour Vitale also sued under the Louisiana equiv- without breaks. He may not stoop, crawl, climb alent of the ADA, LA. R.S. 23:303. Neither party ladders, or perform overhead work[.] All these discusses the state claims to any significant extent, (continued...) however.

2 881 (5th Cir. 2001). filled other, less-demanding posts6 and that Georgia Gulf had moved individuals with The ADA,

(a), forbids similar disabilities into such posts. Vitale, covered employers from discriminating however, produced no evidence that Georgia “against a qualified individual with a disability Gulf needed to fill a vacant position that would because of the disability of such individual,” have accommodated his restrictions. “For the with regard to, among other things, “terms, accommodation . . . to be reasonable, it is clear conditions, and privileges of employment.” As that a position must first exist and be vacant. one of the “essential elements” of his claim, Vitale must prove that he “was a qualified per- Under the ADA, an employer is not son with a disability” at the time of the alleged required to give what it does not have.” discrimination, Rizzo v. Children’s World Foreman v. Babcock & Wilcox,

, Learning Ctrs., Inc.,

(5th 810 (5th Cir. 1997). Vitale does not contest Cir. 2000),5 which means a person who “with the fact that Georgia Gulf did not need to fill or without reasonable accommodation, can a vacant light duty post. Again, he merely perform the essential functions of the asserts that Georgia Gulf’s assignments of employment position that such individual holds injured individuals to temporary light duty or desires,”

(8). A positions indicates that he should receive a “reasonable accommodation” includes “job re- light duty assignment of indefinite duration.7 structuring, part-time or modified work schedules, reassignment to a vacant position,” and general concessions involving training and 6 facilities.

(9). Georgia Gulf’s Human Resources Supervisor indicated that Vitale could have filled the fire watch position or positions involving the moni- Vitale failed to produce evidence from toring and checking for leaks in the pipes. which a reasonable jury could find that he was a qualified individual with a disability. Based 7 Vitale’s sole authority in support of his con- on the testimony of his doctor and as admitted tention that “the creation of such a position to ac- in Vitale’s own brief, he could not continue, commodate similarly situated employees is proof with his limitations on lifting and movement, that such a position did . . . exist” does not support working in his prior position. Thus, to satisfy his case at all. See Burch v. City of Nacogdoches, the “qualified individual” requirement, Vitale

, 621 n.11 (5th Cir. 1999) (“Had needed to produce evidence of a reasonable [plaintiff] shown that the City treated him dif- accommodation, as defined in § 12111(9), that ferently from others similarly situated by not re- Georgia Gulf could have provided. assigning him under identical conditions, his posi- tion on appeal would have been much stronger” (emphasis added)). Reassignment is not equivalent Vitale largely points to Georgia Gulf to creating a new position. One district court in employees who testified that he could have this circuit has held that accommodations to some employees do not require similar accommodations to all similarly-situated employees. Wilburn v. 5 See also Daugherty v. City of El Paso, 56 Lucent Techs., Inc., 2000 U.S. Dist. LEXIS F.3d 695 (5th Cir. 1995) (The ADA “prohibits em- 17520, at *14 (N.D. Tex. 2000) (stating that ployment discrimination against qualified individ- “creating a light-duty position . . . is not a uals with disabilities, no more and no less.”). ‘reasonable’ [accommodation]”).

3 Without evidence to show that he either Christiansburg standard. could have performed his previous job or could have filled a vacant opening, Vitale is Although Vitale did not succeed on his not a qualified individual with a disability, so a ADA claim, the district court did not abuse its reasonable jury could not conclude that Geor- “sound discretion” in denying attorney’s fees. gia Gulf discriminated in violation of the ADA. EEOC v. Tarrant Distribs., Inc., 750 F.2d Therefore, the district court did not err in 1249, 1250 (5th Cir. 1984) (citing Christians- granting the rule 50 motion. burg). Although Georgia Gulf’s assignments of injured employees to light duty positions do III. not excuse Vitale from the ADA’s Because it obtained a j.m.l., Georgia Gulf requirements of a “qualified individual with a asserts it is entitled to attorney’s fees.8 We re- disability,” those assignments render this suit view a ruling on attorney’s fees for abuse of less frivolous or unreasonable. discretion. No Barriers, Inc. v. Brinker Chili’s Tex., Inc.,

(5th Cir. The district court properly granted j.m.l. 2001). The ADA fee-shifting provision has and denied attorney’s fees. The judgment is language similar to that of title VII and 42 AFFIRMED. U.S.C. § 1988. Consequently, the doctrines from these two provisions apply to the case at hand. No Barriers,

.

Although Georgia Gulf effectively cites pre- cedent regarding the circumstances in which a court may9 award attorney’s fees, it does not provide examples of when a court must award fees to prevailing defendants. In contrast to prevailing plaintiffs in civil rights actions, who “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust,” Newman v. Piggie Park Enters., Inc.,

(1968), pre- vailing defendants may receive fees under the

8

(“In any action . . . com- menced pursuant to this chapter, the court[,] in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .”). 9 A prevailing defendant may not receive fees unless the plaintiff’s claim “was frivolous, unrea- sonable, or groundless, or that the plaintiff con- tinued to litigate after it clearly became so.” Chris- tiansburg Garment Co. v. EEOC,

(1978).

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