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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
m 00-40966
________________
STEVEN R. HOLTZCLAW,
Plaintiff-Appellant,
VERSUS
DSC COMMUNICATIONS CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Eastern District of Texas
________________________
July 6, 2001
Before SMITH, DUHÉ, and WIENER,
42 U.S.C. § 12112(a), the Employee Retire-
Circuit Judges.
ment Income Security Act of 1974 ("ERISA"),
29 U.S.C. § 1140, and the Age Discrimination
JERRY E. SMITH, Circuit Judge:
in Employment Act ("ADEA"), 29 U.S.C.
§ 623(d). Because Holtzclaw is not physically
Steven Holtzclaw appeals a summary judg-
able to do the job that he sought, either with
ment in his suit against DSC Communications
or without accommodation, he fails to
Corporation ("DSC") asserting claims under
establish a prima facie case for any of his
the Americans with Disabilities Act ("ADA"),
claims; accordingly, we affirm.

While Holtzclaw's appeal was pending, the
I.
Supreme Court decided Cleveland v. Policy
Holtzclaw began working for DSC in 1984.
Mgmt. Sys. Corp., 526 U.S. 795 (1999), which
Ten years later, he was hospitalized for chron-
rejected this circuit's application of judicial es-
ic idiopathic pancreatitis but returned to work
toppel to an ADA accommodation case in
soon after his hospitalization. In April 1995,
which a plaintiff previously had claimed full
the severity of his pancreatitis forced him to
disability. We therefore remanded Holtzclaw's
take short-term disability leave. In December
case to the district court with instructions to
1995, DSC's long-term disability ("LTD")
reconsider his claims in light of Cleveland. On
carrier determined that Holtzclaw qualified for
remand, the district court again granted
LTD benefits, based on his unequivocal state-
summary judgment for DSC.
ments that he was "unable to work at all," that
he would never be able to return to work, and
II.
that his condition could not reasonably be ac-
We review a summary judgment de novo,
commodated by an employer. After making
applying the same standard as did the district
similar unequivocal statements to the Social
court. D.E.W., Inc. v. Local 93, Laborers'
Security Administration ("SSA"), Holtzclaw
Int'l Union, 957 F.2d 196 (5th Cir. 1992).
secured social security disability insurance.
Summary judgment is appropriate only where
there is no genuine issue of material fact. FED.
In August 1996, Holtzclaw reapplied for a
R. CIV. P. 56(c). If the evidence is such that a
job at DSC. In September, the director of hu-
reasonable jury could return a verdict for the
man resources informed him that DSC would
non-moving party, there is a genuine issue of
not hire him because of low ratings on several
material fact. Anderson v. Liberty Lobby, Inc.,
1993 and 1994 performance reviews. In Oc-
477 U.S. 242, 249 (1986). Therefore, if the
tober, Holtzclaw verified to DSC's LTD in-
nonmovant fails to establish facts in support of
surer that he had been completely and continu-
an essential element of his prima facie claim,
ously unable to work for the previous twenty-
summary judgment is appropriate. Celotex
four months, a period that included the time
Corp. v. Catrett, 477 U.S. 317, 322-23
during which he was re-applying for a job at
(1986). We may affirm a summary judgment
DSC.
on any ground supported by the record, even
if it is different from that relied on by the
In May 1997, Holtzclaw filed this suit,
district court. Tex. Refrig. Supply, Inc. v.
claiming that DSC had discriminated against
FDIC, 953 F.2d 975, 980 (5th Cir. 1992).
him under the ADA, had interfered with his re-
ceipt of benefits under ERISA, and had retal-
III.
iated against him under the ADEA. DSC
To present a prima facie case of discrim-
moved for summary judgment on all of the
ination under the ADA, Holtzclaw must show
claims, and Holtzclaw responded with a cross-
that "[he] is a qualified individual with a dis-
motion for summary judgment on the ADA
ability, and that the negative employment ac-
and ERISA discrimination claims. The court
tion occurred because of the disability." Sher-
granted DSC's motion for summary judgment
rod v. Am. Airlines, Inc., 132 F.3d 1112, 1119
and denied Holtzclaw's.
(5th Cir. 1998). A "qualified individual with a
disability" is defined in the ADA as someone
2

who has a disability but who, "with or without
er job and indicated that neither rehabilitation
reasonable accommodation, can perform the
services, job modification, nor vocational
essential functions of the employment position
retraining would allow him to return to work.
that such individual holds or desires." 42
This reaffirmation of his disability for purposes
U.S.C. § 12111(8); accord Giles v. Gen. Elec.
of receiving LTD benefits included a verifica-
Co., 245 F.3d 474, 483 (5th Cir. 2001).
tion that he had been continuously incapaci-
tated from June 1996 through September
The summary judgment evidence indicated
1996SSthe time period during which he reap-
that Holtzclaw could not perform the essential
plied for a job at DSC.
functions of the position he sought. In state-
ments to DSC's LTD insurer and to the SSA,
An ADA plaintiff who, in an application for
Holtzclaw asserted the seriousness and long-
disability benefits, asserts that he is unable to
term effects of his pancreatitis. He certified to
work must produce "an explanation of this
the SSA that his conditions and medications
apparent inconsistency" that is "sufficient" to
"play havoc on [his] thinking and memory
defeat summary judgment on the issue of
skills," "make it impossible to have a clear and
whether the plaintiff is a qualified individual
normal mind," and "keep [him] from being
with a disability. Cleveland, 526 U.S. at 807.
able to think and concentrate." Holtzclaw also
Holtzclaw offers no explanation for the incon-
told the SSA that his "mental and physical
sistency between his sworn testimony in ap-
abilities ha[d] decreased to a level where [he
plying for LTD and SSA and his claim to DSC
is] no longer self-supportive" and that he is
that he is a qualified individual with a disability
simply "unable to function in the real world"
who can perform the essential functions of the
from two to three days per week.
job. In fact, the only evidence he uses to
support his contention that he was able to
Furthermore, Holtzclaw related to DSC's
return to work is his belief that he was "physi-
LTD insurer that returning to work or com-
cally able to return to work as of August
mencing vocational rehabilitation was "not
1996." In Cleveland, however, the Court held
possible," that he could perform none of the
that a plaintiff "cannot create a genuine issue
duties of his former occupation, that it was
of fact sufficient to survive summary judgment
"not possible to work" even with any form of
simply by contradicting his or her own
accommodation, that he was "too sick" to
previous sworn statement." Id. at 806.
consider any form of retraining, that he was
"unable to work at all," and that he was "doing
In an effort to prove his status as a qualified
good [sic] to be alive." Holtzclaw also certi-
individual with a disability, Holtzclaw pre-
fied to the LTD insurer that he never expects
sented a medical release form signed by his
to return to work and that his "illness is chron-
doctor that states merely that he is able to re-
ic and will never go away."
turn to work. The letter was based solely on
Holtzclaw's assertion that he felt well enough
Even after he reapplied to DSC, stating that
to return to work: The doctor conducted no
he was capable of performing all essential
evaluation before writing the letter. The re-
functions of the job, Holtzclaw nevertheless
lease thus is not probative evidence of Holtz-
told DSC's LTD insurer that he was "totally
claw's ability to work.
disabled" from performing his own or any oth-
3

Holtzclaw claims, too, that because none of
IV.
his interviewers at DSC expressed a belief that
To establish a prima facie retaliation claim
he was too disabled to do the job, a reasonable
under the ADEA, Holtzclaw must show
jury could find him physically able to do it.
(1) that he engaged in a protected activity,
This argument is without merit, because the
(2) that there was an adverse employment
purpose of the job interviews was to explore
action, and (3) that a causal link existed
Holtzclaw's technical skills and experience,
between the protected activity and the adverse
not to determine whether he was medically
employment action. Sherrod, 132 F.3d at
able to meet the demands of day-to-day
1112 n.8. Holtzclaw argues that his claim
employment.
should have survived summary judgment, even
though he cannot perform the job at DSC,
because qualification for the job is not a prima
Cleveland teaches that a plaintiff cannot
facie element of an ADEA retaliation claim.
change his story during litigation without a
Instead, he urges that if the employer acted for
sufficient explanation for his inconsistent as-
a discriminatory reason, then even if he was
sertions. Holtzclaw has offered no sufficient
not qualified for the job, he should still recover
explanation for the contradiction between his
on his ADEA retaliation claim.
disability applications and his claim that, when
he re-applied for the job, he could have
worked even without reasonable
accommodation. He therefore has failed to
create a material issue of fact whether he is
former employee, such as Holtzclaw, has been on
qualified for the position he sought. Because
LTD for more than six months, he is not allowed to
reapply for a position at DSC.
he cannot establish that element of his prima
facie claim, summary judgment was
The above-quoted provision merely distin-
appropriate on the ADA claim.1
guishes between (1) employees who are rehired
within six months of being released to return to
work from LTD status and (2) those who are so
1 Holtzclaw also claims that DSC's rehiring
released but are not rehired within six months.
policy is facially discriminatory under the ADA.
Nothing in the provision prohibits an employee
The policy states in pertinent part:
who is released to return to work, or who is re-
hired, more than six months after his original ter-
If an employee is released to return to
mination for LTD from re-applying for employ-
work from a period of LTD incapacity,
ment or from being rehired; the distinction is that
within six (6) months of termination from
such employee is treated as a new hire for purposes
the company for inability to work due to
of employee benefits.
total disability, the employee may apply for
a position with the company. If a position is
Holtzclaw's argument also is unsupported by
available and the employee is returned to
the record, in light of the fact that he was invited to
work within this six (6) month period, all
reapply for a position, was interviewed, and was
benefits will be restored to the employee,
considered for re-employment nine months after he
and the employee's service credit will con-
went on LTD. Because of this fact and of the fact
tinue as if there was no break in service.
that he did not meet the requirements to be a
"qualified individual" under the ADA, his
Holtzclaw's reading of the policy assumes that if a
argument has no merit.
4

We have never expressly made qualification
summary judgment if his complaint were
a prima facie element of an ADEA retaliation
that he was discriminated against
claim, but today we decide that such an
because he complained of age
element is necessary. Retaliation claims are
discrimination. This is much like our
nothing more than a protection against
present case where Plaintiff will have his
discrimination in that the employee against
ADA and ERISA claims dismissed
whom the employer has retaliated suffers dis-
because he is, as a matter of law, not
crimination based on the employee's exercise
qualified for the position applied for, yet
of a right to charge, testify, assist, or par-
has the possibility of surviving summary
ticipate in a protected activity under the
judgment on his ADEA retaliation claim
ADEA. See 29 U.S.C. § 623(d).
based on his being refused the same job
the Court has found he is not qualified
Because, in regard to other types of
to hold. This is illogical, and cuts
discrimination claims, including other ADEA
against the intent of these statutes.
claims, we consistently have required that a
plaintiff be qualified for the job he seeks,2 it
would be illogical not to require one here. A
We therefore conclude that qualification for
contrary holding would be inconsistent with
the job is an element of a prima facie claim of
the observation that "`Congress did not intend
ADEA retaliation. Accordingly, summary
. . . to guarantee a job to a person regardless
judgment is proper on Holtzclaw's claim of
of qualifications. In short, [title VII] does not
ADEA retaliation.
command that any person be hired simply
because he was formerly the subject of dis-
V.
crimination.'" McDonnell Douglas Corp. v.
To establish a prima facie case of
Green, 411 U.S. 792, 800(1973). As the dis-
discrimination under ERISA, a plaintiff must
trict court noted:
establish that his employer fired him in
retaliation for exercising an ERISA right or to
[T]o analyze this issue in any other man-
prevent attainment of benefits to which he
ner would lead to illogical and in-
would have become entitled under an
consistent results. For example: a plain-
employee benefit plan. Rogers v. Int'l Marine
tiff's discrimination suit could be
Terminals, Inc., 87 F.3d 755, 761 (5th Cir.
dismissed because he was unqualified
1996); Hines v. Mass. Mut. Life Ins. Co., 43
for the position applied for, even though
F.3d 207, 209 (5th Cir. 1995). The plaintiff
there was some direct evidence of age
need not prove that the discriminatory reason
discrimination on the part of the
was the only reason for discharge, but he must
employer. However, under the same
show that the loss of benefits was more than
facts, the plaintiff could survive
an incidental loss from his discharge. Stafford
v. True Temper Sports, 123 F.3d 291, 295 (5th
Cir. 1997) (per curiam). This inference of
2
discrimination can be proven by circumstantial
See, e.g., Price v. Marathon Cheese Corp.,
evidence. Id.
119 F.3d 330, 336 (5th Cir. 1997) (holding that a
plaintiff must be qualified for the job in question to
establish a prima facie case of discrimination
Although we have not so held, district
under the ADEA.
5

courts in this circuit have required a plaintiff,
category.5
to succeed on an ERISA claim, to show that
he is qualified for the position he seeks. See,
Because Holtzclaw has not shown that he is
e.g., Smith v. Gencorp, Inc., 971 F. Supp.
qualified for the position he seeks, either with
1071, 1075 (N.D. Miss. 1997). So, too, a ma-
or without accommodation, he can pursue his
jority of the circuits have determined that qual-
ERISA claim no further. Holtzclaw argues
ification for the job is an element of a prima
that being "qualified with a disability" under
facie ERISA claim.3
the ADA is different from being "qualified"
We now join our sister circuits in deciding
under ERISA and that because he has the
that qualification for the position sought is an
expertise necessary to perform the job, he is
element of a prima facie ERISA claim. This
"qualified" for purposes of an ERISA claim.
reinforces our caselaw under title VII and the
This argument is meritless: Holtzclaw has
ADA, neither of which statutes contains qual-
stated plainly that, because of his condition, he
ification as an element, but for both of which
cannot do the job, even with accommodation.
our jurisprudence requires a showing of
Because of this, no employer would consider
qualification as part of a prima facie case.4
him "qualified," and neither can we. Thus,
summary judgment was proper on the ERISA
As we have discussed supra, it is illogical
claim.
to allow one alleging discrimination under any
employment discrimination statute to proceed
AFFIRMED.
with his suit if he is not qualified for the job he
seeks. Failing to require job qualification as an
element of the prima facie case would belie
the purpose of such statutes: to allow those
who are qualified for jobs to seek remedies for
prohibited acts of discrimination. Employment
discrimination statutes do not prohibit
discrimination in a vacuum, but only in the
concrete context of a specific job or job
3 See, e.g., Clark v. Coats & Clark, Inc., 990
F.2d 1217, 1223 (11th Cir. 1993); Henson v. Lig-
gett Group, Inc., 61 F.3d 270, 277 (4th Cir. 1995);
Lehman v. Prudential Ins. Co. of Am., 74 F.3d
323, 330 (1st Cir. 1996); McNemar v. Disney
Store, Inc., 91 F.3d 610, 621 (3d Cir. 1996); Salus
v. GTE Directories Serv. Corp., 104 F.3d 131,
135 (7th Cir. 1997); Dister v. Cont'l Group, Inc.,
859 F.2d 1108, 1114-15 (2d Cir. 1998).
4 See, e.g., Urbano v. Cont'l Airlines, Inc., 138
F.3d 204, 206 (5th Cir. 1998) (title VII); Hamilton
5 Cf. Palsgraf v. Long Island R.R., 162 N.E.
v. Southwestern Bell Tel. Co., 136 F.3d 1047,
99, 99 (N.Y. 1928) ("`Proof of negligence in the
1050 (5th Cir. 1998) (ADA).
air, so to speak, will not do.'") (citation omitted).
6