82 F. App'x 873

Peter VITALE, Plaintiff-Appellant, v. GEORGIA GULF CORPORATION, Defendant-Appellee. Peter Vitale, Plaintiff-Appellee, v. Georgia Gulf Corporation, Defendant-Appellant.

Nos. 02-31195, 02-31264.

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 10, 2003.

*874Dan Michael Scheuermann, Keith Harding Grant, Baton Rouge, LA, for Plaintiff-Appellant.

Murphy J. Foster, III, John Thomas Andrishok, Breazeale, Sachse & Wilson, Baton Rouge, LA, for Defendant-Appellee.

Before SMITH, DEMOSS, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge.*

Peter Vitale sued Georgia Gulf Corporation (“Georgia Gulf’) under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. He appeals a Fed. R. Civ. P. 50 judgment as a matter of law (“j.m.1.”). Georgia Gulf appeals the denial of attorney’s fees. Finding no error, we affirm.

I.

Georgia Gulf employed Vitale in a variety of capacities.1 While working as a pipefitter’s helper, Vitale injured his back. Because a neurosurgeon then limited the kind of work Vitale could perform,2 Vitale *875could not return to his original position.3 After leaving Georgia Gulf, he sued.4 At the conclusion of the jury trial, Georgia Gulf successfully moved for j.m.l., then unsuccessfully sought attorney’s fees pursuant to 42 U.S.C. § 12205.

II.

We review a j.m.l. de novo. Delano-Pyle v. Victoria County, 302 F.3d 567, 572 (5th Cir.2002), cert. denied, — U.S. -, 124 S.Ct. 47, 157 L.Ed.2d 22, (2003). We review all the evidence and “must draw all reasonable inferences in favor of the nonmoving party.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). “[A] court may not render |j.m.l.] unless a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” Fitzgerald v. Weasler Eng'g, Inc., 258 F.3d 326, 337 (5th Cir.), amended, 274 F.3d 881 (5th Cir. 2001).

The ADA, 42 U.S.C. § 12112(a), forbids covered employers from discriminating “against a qualified individual with a disability because of the disability of such individual,” with regard to, among other things, “terms, conditions, and privileges of employment.” As one of the “essential elements” of his claim, Vitale must prove that he “was a qualified person with a disability at the time of the alleged discrimination, Rizzo v. Children’s World Learning Ctrs., Inc., 213 F.3d 209, 212 (5th Cir.2000),5 which means a person who “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires,” 42 U.S.C. § 12111(8). A “reasonable accommodation” includes “job restructuring, part-time or modified work schedules, reassignment to a vacant position,” and general concessions involving training and facilities. 42 U.S.C. § 12111(9).

Vitale failed to produce evidence from which a reasonable jury could find that he was a qualified individual with a disability. Based on the testimony of his doctor and as admitted in Vitale’s own brief, he could not continue, with his limitations on lifting and movement, working in his prior position. Thus, to satisfy the “qualified individual” requirement, Vitale needed to produce evidence of a reasonable accommodation, as defined in § 12111(9), that Georgia Gulf could have provided.

Vitale largely points to Georgia Gulf employees who testified that he could have filled other, less-demanding posts6 and that Georgia Gulf had moved individuals with similar disabilities into such posts. Vitale, however, produced no evidence that Georgia Gulf needed to fill a vacant position that would have accommodated his restrictions. For the accommodation ... *876to be reasonable, it is clear that a position must first exist and be vacant.

Under the ADA, an employer is not required to give what it does not have. Foreman v. Babcock & Wilcox, 117 F.3d 800, 810 (5th Cir.1997). Vitale does not contest the fact that Georgia Gulf did not need to fill a vacant light duty post. Again, he merely asserts that Georgia Gulfs assignments of injured individuals to temporary light duty positions indicates that he should receive a light duty assignment of indefinite duration.7

Without evidence to show that he either could have performed his previous job or could have filled a vacant opening, Vitale is not a qualified individual with a disability, so a reasonable jury could not conclude that Georgia Gulf discriminated in violation of the ADA. Therefore, the district court did not err in granting the rule 50 motion.

III.

Because it obtained a j.m.l., Georgia Gulf asserts it is entitled to attorney’s fees.8 We review a ruling on attorney’s fees for abuse of discretion. No Barriers, Inc. v. Brinker Chili’s Tex., Inc., 262 F.3d 496, 498 (5th Cir.2001). The ADA fee-shifting provision has language similar to that of title VII and 42 U.S.C. § 1988. Consequently, the doctrines from these two provisions apply to the case at hand. No Barriers, 262 F.3d at 498.

Although Georgia Gulf effectively cites precedent 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 Bark Enters., Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), prevailing defendants may receive fees under the Christiansburg standard.

Although Vitale did not succeed on his ADA claim, the district court did not abuse its “sound discretion” in denying attorney’s fees. EEOC v. Tarrant Distribs., Inc., 750 F.2d 1249, 1250 (5th Cir.1984) (citing Christiansburg). Although Georgia Gulfs assignments of injured employees to light duty positions do not excuse Vitale from the ADA’s requirements of a “qualified individual with a disability,” those assignments render this suit less frivolous or unreasonable.

*877The district court properly granted j.m.l. and denied attorney’s fees. The judgment is AFFIRMED.

Vitale v. Georgia Gulf Corp.
82 F. App'x 873

Case Details

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Vitale v. Georgia Gulf Corp.
Decision Date
Dec 10, 2003
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82 F. App'x 873

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United States

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