Carey Dorsey v. Boise Cascade Company, et al

Filing

UNPUBLISHED OPINION FILED. [14-31257 Affirmed ] Judge: PEH , Judge: EHJ , Judge: SAH Mandate pull date is 08/24/2015; denying motion to appoint counsel filed by Appellant Mr. Carey Dwayne Dorsey [7840495-3] [14-31257]

Case: 14-31257

Document: 00513139193

Page: 1

Date Filed: 08/03/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 14-31257
Summary Calendar

FILED
August 3, 2015
Lyle W. Cayce
Clerk

CAREY DWAYNE DORSEY,
Plaintiff-Appellant

v.

BOISE CASCADE COMPANY, formerly known as Boise Cascade, L.L.C.;
PROTEMP STAFFING SOLUTIONS, INCORPORATED; B. GERALD
WEEKS
Defendants-Appellees

Appeals from the United States District Court
for the Western District of Louisiana
USDC No. 2:13-cv-2830
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Carey Dwayne Dorsey alleges that he was injured on the job. After
receiving a right-to-sue letter from the EEOC, he brought suit pro se under the
Americans with Disabilities Act (“ADA”) for wrongful discharge and failure to

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

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No. 14-31257
accommodate. 1 The district court granted summary judgment against Mr.
Dorsey’s claims, finding that he was not a “qualified individual” under the ADA
and that no reasonable accommodation was possible. Mr. Dorsey appealed.
We affirm.
Mr. Dorsey explains that he already had back injuries when he applied
to work as an employee of Protemp Staffing at Boise Cascade Company’s plant.
He disclosed those injuries and was hired by Protemp and placed in a job which
he was able to perform. Things went well at the plant until September 21,
2011, when he was asked to help clear a clogged chipper machine. As Mr.
Dorsey explains it, the chipper machine suddenly began moving while he was
using a long hook to remove plywood panels from it. The sudden restarting of
the machine jerked Mr. Dorsey into the air. The jerk and fall onto the ground
caused severe pain in his back and neck. He asked for medical help, but was
told by a supervisor to stay on the job and just “take it easy.” The next day, he
called Boise to explain that he could not come to work due to the pain, and
asked again for medical help. He was told to wait for a Boise representative to
call him back. While doing so, he received a call from a Protemp representative
who told him he was fired for not reporting to work that day, and showed no
interest in the accident other than advising him to get a lawyer. When he
contacted Boise again, he was told he had to deal with Protemp, his employer.
Mr. Dorsey’s testimony and filings raise serious complaints about his
treatment by Boise and Protemp, in whose service he was injured. However,
as the district court found, Mr. Dorsey’s ADA claims cannot survive summary
judgment.

The

ADA

protects

certain

“qualified

individuals”

from

42 U.S.C. § 12112(a) & (b) (5)(A). Mr. Dorsey’s Complaint also referenced a claim for
intentional discriminatory practices under 42 U.S.C. § 12117(a) and 42 U.S.C. § 2000e-5. As
the district court found, however, these provisions combine to set out the procedure for
making a claim under the ADA, rather than providing an additional claim.
1

2

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discrimination based on disability and affords them the right to reasonable
accommodations. 2 “Qualified individuals” are those “who, with or without
reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 3

Mr. Dorsey

argues that he is a “qualified individual,” but his pleadings establish that on
the date of his September 2011 discharge, he could not go in to work due to the
pain. He stated in sworn deposition testimony on June 1, 2012 in a related
Worker’s Compensation case that he could not perform any employment
whatsoever due to his injuries. On June 12, 2014, Mr. Dorsey again agreed in
deposition testimony that he could not “imagine that anyone could . . . create a
job that [he] could do right now.”
Mr. Dorsey’s testimony makes it clear that at the time he was discharged
and denied medical care by Boise and Protemp, he was unable to work, and
that he remained unable to work for some time thereafter, no matter what
accommodations were provided. A person who cannot do any work, let alone
the particular work required for the job from which he was discharged, is not
a “qualified individual” under the ADA. 4 The record suggests that Mr. Dorsey
at some point in 2013 may have become able to do light work, but “[t]he
relevant time for determining whether the plaintiff is a ‘qualified individual
with a disability’ is at the time of discharge.” 5 Moreover, “indefinite leave”
until a worker recovers enough to work is not a reasonable accommodation. 6

42 U.S.C. § 12112.
Id. at § 12111(8).
4 Id. (“The term ‘qualified individual’ means an individual who, with or without
reasonable accommodation, can perform the essential functions of the employment position
that such individual holds or desires.”).
5 Griffith v. Wal-Mart Stores, Inc., 135 F.3d 376, 380 (6th Cir. 1998).
6 Rogers v. Intl. Marine Terminals, Inc., 87 F.3d 755, 759-60 (5th Cir. 1996).
2
3

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The court recognizes the serious nature of Mr. Dorsey’s complaint, but
the ADA is simply not designed for a situation such as this, where a workplace
accident injures a worker so severely that he is unable to continue working.
Because Mr. Dorsey is not a “qualified individual,” his ADA claims cannot
survive summary judgment. Mr. Dorsey’s motion for appointment of counsel
is denied. 7
AFFIRMED.

See Cooper v. Sheriff, Lubbock Cty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991)
(explaining that appointment of appellate counsel is appropriate only in “exceptional
circumstances,” and addressing factors to consider).
7

4