*1 959 F.2d at Goldfaden, message); strong of a (where in the face government, as to make no recommendation
promise to sentence, “suggested base
the defendant’s level, a minimum offense argued for
offense higher base of- ..., later advanced
level upward ..., and recommended level
fense find that the Accordingly, we
departure”). agree- plea not breach
government did commending to the district the PSR
ment
court.
IX reasons, we REVERSE foregoing
For the that Wilder court’s determination
the district sen- justice, Wilder’s
obstructed VACATE resentencing.
tence, On REMAND
remand, court should the district allegations that he validity of Wilder’s pursuant assistance
rendered substantial and that the plea agreement terms of the agreement.
government breached judgment of AFFIRM the respects,
other we court.
the district DUHON, Plaintiff-Appellee,
Clifford
Cross-Appellant,
TEXACO, INC., al., et Defendants- Cross-Appellees.
Appellants,
No. 92-4843. Appeals, Court
United States
Fifth Circuit.
Feb. Rehearing En Banc
Suggestion for 22, 1994.
Denied March *2 Oubre, Campbell, Caffery,
Michael W. Du- gas Iberia, LA, Campbell, & New for defen- dants-appellants. Ostrich, Orleans, LA,
Mark J. New plaintiff-appellee. “if is able JONES, JOHNSON, JOLLY, cease under the Before is, or she any job for which he Judges.
Circuit become, by training, JOLLY, Judge: Circuit E. GRADY ours). (Emphasis experience.” *3 typical us with a rather presents This case condition evaluated Duhon’s doctors Three ERISA benefits: pertaining to question disability if his in in 1991 order Duhon, im- he was claims plaintiff, Clifford beyond initial should continue benefits disability benefits long-term properly denied period. Duhon was first twenty-four month summary moved for employer and by his Dr. family physician, by his evaluated district court. The in judgment disability a state- Ray, who executed Charles summary judgment in favor granted court to Duhon was unable concluding that ment in- was that the evidence Duhon. It found condition and his a truck driver work as de- plan administrator sufficient because Lahasky, also permanent. Dr. Jacob was reports disability based on the termined Duhon general practitioner, next examined opinion of a when of medical doctors Lahasky executed request. Dr. required. expert was vocational rehabilitation he concluded disability statement which plan adminis- ordered the court The district trucks or do not drive that Duhon should past due pay benefits trator Duhon that Duhon’s appeal, heavy lifting. we at- also On He stated well as future benefits. through procedural Finally, July thick- tempt permanent. to wade was condition inqui- focus on the central the case orthopedist, et of and Dr. seen an Did be made in these cases: ry that should Ford, request. Dr. at Texaco’s Thomas deny- the decision of Duhon had de- report Ford’s concluded that disability to Duhon benefits ing long-term disease, which ren- generative lumbar disc Because of discretion? constitute an abuse bend, squat, stoop, dered him unable not, the district that it did we reverse we find pounds. Dr. Ford twenty-five lift more than summary judg- plaintiffs grant court’s of the general practitioners two agreed with the further remand the case for ment motion and as a not return to work could Duhon proceedings. driver, Duhon was ca- stated truck but “sedentary doing work.” pable of I 1991, in with the In accordance October Duhon, sixty-six now Appellee Clifford and plan, terms old, employed appellant Texaco years all of reviewed Texaco’s chief medical officer (“Texaco”) Trading Transportation, Inc. and determined the medical evidence February July through 1989 as from long- qualify continuing Duhon did not 1,1989, Duhon end- On March truck driver. beyond disability payments the initial term as a truck because employment his driver ed appealed twenty-four period. Duhon month That date degenerative back condition. of a administrator, but to the the decision pur- separation from work for marked his He then filed suit appeal denied. employee plan; he benefits poses of Texaco’s against Texaco and the district court federal receiving disability payments of began administrator, claiming a violation Texaco’s disabili- per Under month. $652.35 suit, filing Shortly Duhon after ERISA. may ty plan, receive summary judgment. The moved for twenty-four first months payments for the summary judg granted Duhon’s motion for employee is disability begins if the after the pay ment, additionally Texaco to ordered his the normal duties unable since it termi for each month Duhon $652.35 comparable one. job assignment or a regular interest, plus disability payments, nated his disputes that party Duhon Neither to Du- paying benefits and to those continue first disability payments for the for these The court de every thereafter. hon month following separation twenty-four months attorney’s request fees. nied twenty-four this initial from work. After appeals disability payments Texaco now period passes, month granted in favor of Duhon.1 applied to the administrator’s denial of plaintiff couched his argu-
II
ment, and the court couched
holding,
its
terms that failed to speak to the
standard of
his motion
summary
judgment, Du-
review to
applied
in analyzing the decision
argued
hon
that additional information was
administrator. The district court
required before
administrator could
summary
entered
judgment ordering bene-
properly determine that Duhon was not dis-
paid
Duhon,
fits be
which reversed the
deny
abled
him
benefits under the
plan administrator’s denial of those benefits.
pointed
out that
A denial of ERISA
by plan
benefits
admin-
administrator to find that Dúhon
was or
istrator challenged
502(a)(1)(B)
§
under
*4
“qualified by
training, education
ERISA,
§
29
1182(a)(1)(B),
U.S.C.
experience”
or
is re-
“any job.” He
viewed
the courts under a
novo
argued
de
stan-
that
the mere fact that a medical
dard
plan gives
unless the
doctor had
administrator
concluded that he was capable of
“discretionary authority to
eligibil-
doing “sedentary
work” did not mean
ity for benefits or to construe the
terms of
“qualified
he was
by training, education
plan.”
Firestone Tire & Rubber
experience”
or
Co. v.
job.
do any 'such
The
Bruch,
101, 115,
489 U.S.
948, 956,
109 S.Ct.
agreed,
district court
finding that “Dr. Ford’s
(1989).
guage, it is clear that the administrator III has the discretionary authority to make a final and conclusive determination A claim. This court has imposed linguis- begin We must our inquiry with a template tic satisfy requirement, determination of the standard of review to be Co., Wildbur v. ARCO Chemical 1. Duhon cross-appeals the Duhon, district court's denial ment to cross-appeal seeking attor- attorney's fees. Because we find that ney’s fees is denied. district court granting erred in summary judg- (5th employee Texaco and there- apparently (5th Cir.), modified, F.2d 1013 conflict of under a plain possibly operated plan’s fore
Cir.1992), in this case but interest. language provides final determi- independent
may make an also, Lowry v. eligibility. See nation of B Plan, Casualty Retirement Bankers &Life argu- merits of the now turn to the Cir.1989). 522, 524-25 appeal. Duhon presented in this ments af discretion argues arguing that sought of discretion under the abuse forded Texaco properly interpret did not plan administrator of Tex limited because of review is standard job, “any” and that “qualified” for the terms the adminis of interest as both aco’s conflict insufficient the evidence was payor of the plan and the own trator of its Thus, qualified for that Duhon was Bruch, He cites where disability summary proponent of the motion as the gives “if a the Court stated of estab- judgment, Duhon had the burden fiduciary an administrator discretion to abused his lishing that the interest, a conflict of operating under who (1) misinterpreting terms of discretion weighed facto[r] must be that conflict *5 (2) by concluding that the medical plan or of there is an abuse determining whether in- by Texaco constituted opinions presented Bruch, 489 U.S. discretion.” upon evidence which sufficient (citation quotes and internal at 957 S.Ct. disability status. We conclude Duhon’s omitted). that the conflict Duhon contends neither, thus not was Duhon established great that the in this case is so of interest summary judgment.2 entitled of review should of discretion standard abuse analysis an examination begin our with of into a de novo standard be transformed administra- of the evidence before more, brief, states without review. He presented to the that evidence was tor —as history indicates the of this claim “[t]he court on —at the decision and conflict indeed influenced to terminate Du- he made his decision time processing of the claim.” pre- court was The district hon’s benefits. argument on this find Duhon’s We fail to documents; parties stipu- with six sented convincing. plan admin- point fully Texaco’s were a “fair that these six documents lated employee of apparently also an istrator was of documents which com- representation Although agree we that this company. prise[d] the administrative record.” a conflict of possibility fact raises court, presentation to the interest, In order of Supreme Court’s we will follow family report is a from Duhon’s weigh possible first exhibit in Bruch and direction Ray, stating Dr. that Duhon “will physician, factor in our determination conflict as a from driv- probably permanently disabled abused his whether report is a from discretion, ing.” The second document adopting ex cathedra instead Lahasky, family practitioner who exam- altering applicable Dr. suggestion behest, which de- Thus, Duhon at Texaco’s the standard ined standard of review. driving limitations as: “No scribes Duhon’s apply in our review of the review we heavy lifting.” Third is a arbitrary of trucks. No is the administrator’s decision Ford, standard, orthopedist selected from Dr. letter capricious or of discretion subsequent by Duhon fact that Texaco who saw given to the with due consideration Lahasky, stating that Duhon Ray and also Drs. in this was case The failure of the suggest an abuse of discretion. Although other- was the dissent seems wise, question parties analyze properly whether ad- the issues before the expressly failing ministrator abused his discretion to raise the issue. is not the same as notes, opinion argued by wheth- Texaco. As our the issues or we to articulate Nor are supporting underlying grounds argued er authority presented statutory and case read the decision, rejecting administrator’s precisely appeal the same manner em- in an question presented this case comes ultimate parties. ployed of Duhon’s benefits down to whether the denial c degenerative suffers from lumbar disc dis- ease and cannot return to work as a truck plaintiff argues the dis driver, but “is doing sedentary to trict court properly granted summary judg light work.” The fourth is a exhibit medical ment in his favor because there is no evi report showing that Duhon ruptured has two dence in the record illustrat disks in his back. ing that he actually perform can any identifi The -final two documents are evaluations able The defendants counter that the Shaw, Dr. Robert Texaco’s chief medical does require the availability of an officer, Miller, Dr. Burton another Texa- alternate as a prerequisite to termination doctor, co staff of the findings medical of long-term disability benefits;. they argue three doctors who examined Duhon. Both the medical presented evidence doctors concur in administrator’s more than justify sufficient to their decision decision to discontinue In benefits, terminate Duhon’s especially Dr. report, Miller’s he notes that “[t]here is a light of the abuse of discretion standard paucity distinct physical findings and in of review. fact, appears [Duhon] to have little difficulty The Formal Text Long-Term flexion, Dis- extension or lateral bending.” ability Plan of Texaco Article He deals only further refers to the document that with cessation of benefits under the presented It before the administrator: a in pertinent states part: letter attorney, Ostrich, from his Mark de- claring that Duhon “cannot stand for more 5.01 Payments under this Plan shall minutes,
than 30 special has a chair to sit in upon cease the earlier of: and ... high school education.” (d) expiration of the period 24-month fol- *6 Dr. Miller stated in his evaluation: lowing Employee’s the LTD separation respect letter, With to Mr. Ostrich’s I can- date or upon any thereafter, date the if any not find medical support reference to Employee is able to any job for his contention that “cannot is, become, which he may or she or quali- stand for more than 30 minutes” or that he by education, training, experi- or fied requires “special a chair to sit in.” Fur- _ ence thermore, his disability initial only ours.) (Emphasis job, his truck, driving usual and this was receiving basis his He question The before us is whether the
was never found “doing disabled from sed- administrator abused his discretion in inter- entary light work,” to in the noted preting the phrase “any job for which he ... opinion of his orthopedic surgeon, Dr. is, may or qualified” actually to in- B. Thomas Ford. that, any job clude required only “sedentary emphasize no other light to work” for which Duhon was other- evidence— the above exhibits from the qualified. administrative wise apply When applica- we presented record —was to the district court ble standard of review to the administrator’s by either Texaco or Duhon. determination, We further say we cannot that he abused emphasize that it is on this record that this in terminating discretion long- Duhon’s appeal must be decided. term benefits.3 3. Some analyzed (1990); cases our circuit have 308 Group, Dennard v. Richards 681 questions 306, similar to the today one before 1982). us F.2d 314 Cir. These fur cases suggested First, two-step analysis. suggest review ther reviewing may factors the court ing legally interpre determines However, correct appropriate. consider when the re tation of the give If viewing administrator did not rigidly court is not confined to this two- legally interpretation, correct step analysis every case. As noted in Wildbur then the court must Co., 637, determine whether the ad v. ARCOChemical 974 F.2d at ”[a]ppli- ministrator’s decision was an abuse of discretion. cation of may the abuse of discretion standard See, e.g., Co., Wildbur v. ARCOChemical 974 two-step F.2d involve process.” (emphasis [the] sup 631, (5th Cir.1992); case, 637 Jordan v. plied). Cameron Iron In this the administrator concluded Works, Inc., 53, (5th Cir.), 56 cert. that Duhon was able to work: The con record denied, U.S. 498 111 S.Ct. education, L.Ed.2d age, tains evidence of Duhon’s work formality merely ... an additional “perhaps medical evi- possessed administrator The capacity,”4 background and per- given to able indicating that
dence
In
light
necessary
in this case.
“sedentary to
work.”
was nonetheless
form
discontin-
will be
clearly
short,
that benefits
turn to
is
argument
states
we
address
peri-
initial
twenty-four month
ued after the
abused his
plan administrator
whether the
is able to
Employee
“if the
od
determining,
expert tes-
without
discretion
become,
is, may
or she
which he
permanently
timony,
education,
experi-
training,
by
disabled.
report, no
noted in his
Dr. Miller
As
ence.”
split
circuits are
on
that the
We are aware
that Duhon is
presented
has been
evidence
whether
the issue of
job;
the evi-
incapable of
vocational rehabili
to obtain
plan administrator —and
dence before
de
he makes a final
tation
before
evidence
is un-
merely stated
he
district court —
Gunderson, disability.
In
position as a
termination
his former
to
able to return
reviewed a
similar
Eighth
of discre-
Circuit
It was not
driver.
truck
terminating
to conclude
that “before
plan administrator
and found
tion for the
high
year
benefits,
old
with a
sixty-five
man
Plan should have obtained
that a
experience in
plenty of
if
diploma
opinion
expert’s
school
vocational
world, although
work-a-day
unable
presently capable,
Mr. Gunderson
bend,
twenty-
than
stoop,
or lift more
squat,
perform ‘any
impairment, to
physical
of his
”
perform the
able
pounds, would be
however,
five
agree,
occupation’.... We
Indeed,
identifiable
of some
functions
reasoning
then-Judge Ruth Bader
blindly and deliber-
would be
otherwise
find
Ginsburg writing for the District Columbia
uncontest-
ately
ignore a common—and
Inc., 952
Pitney
in Block v.
Bowes
Circuit
people in their sixties and seven-
ed—truth:
(D.C.Cir.1992).
F.2d
physical
limita-
similar
ties who have
Block,
complained
plaintiff
employed
this record
tions established
no
evi-
presented
vocational
workplace
throughout
employable
“reasonably
jobs
he was
dence of
for which
today.
capability or
experience,
fitted
*7
Block,
D
1310 a specifically set out two- This Court judgment and RE- summary grant court’s plan-interpreta- reviewing step process court the district the case MAND majority’s por- Contrary to the tion with this cases. inconsistent proceedings further Co., the v. ARCO Chemical trayal of Wildbur opinion.8 process is not discretion- of this application and REMANDED. REVERSED is bind- ary. Fifth Circuit case law—which abundantly clear ing it on this Court —makes JOHNSON, dissenting: two-step process Judge, application of the Circuit mandatory. is plan-interpretation cases this Court and before the issue Were interpre- reviewing an administrator’s Courts majority por- as the case facts within this whether plan must first determine tation of a them, constrained would be trays this writer legally cor- provided a plan administrator However, asked Texaco has not to concur. If plan. the admin- interpretation of rect whether its this Court correct, legally interpretation is not istrator’s by find- his discretion abused the ad- whether courts must then determine was, fact, qualified or Mr. ing that discretion in his or her abused ministrator a qualified could become SONAT, v. interpreting the Jones this Court decide Texaco instead asks Cir.1993) (5th 115, 116 F.2d was not (“In interpreta- analyzing Committee’s [the] view, as finding. make such plan], first decide tion of we must [the capable of physically long as an interpretation of whether the Committee’s qualified and in if un —even Having ... ‘legally correct.’ perform that becoming qualified to capable of interpretation that the Committee’s decided under Texaco’s longer is no disabled —he incorrect,’ must next deter we ‘legally majority Disability Plan. The Long Term its dis the Committee abused mine whether issue, this, before the Court. true ignores added)); v. (emphasis Jordan cretion.” defensible, issue; another, ig- less It creates Works, Inc., 53, 56 Iron Cameron ap- in the administrative nores evidence denied, (5th Cir.), cert. U.S. record; disregards Circuit Fifth pellate (1990) (“First, 344, 112 L.Ed.2d 308 S.Ct. which, applied, compels affir- if precedent legally in correct must decision. This the district court’s mance of If the Plan’s terpretation provisions.... respect- cannot concur therefore writer given plan the has not the administrator fully dissents. interpretation, the court must legally correct administrator’s whether the point of error then determine By disregarding Texaco’s abuse of discre interpretation if a constitutes an here, majority reviews ease added, However, quotation marks de (emphasis dispute. tion.” finding factual were leted)); Board Batchelor International finding fact issue disputed is no there Pension and Re Local 861 did Electric Workers plan administrator this case. Texaco’s Fund, 441, 444-45 actually quali- tirement not find Mr. Cir.1989) (“First, must determine the court fied or could become interpretation of the correctly correct [legally] job.1 claim is that it Texaco’s sole must de Disability [Then w]e Plan’s provisions- Plan as *9 interpreted Long the Term inter the employee [administrators’] or whether finding that an is termine requiring no to an of discretion.” pretation rises qualified perform to work. can become for finding plan 8. did not move the Texaco been in its court had correct procedurally inap- consequently it would be and insufficient before evidence had judgment in favor of propriate us to direct plan the whether Duhon met him to determine opinion. in this Texaco disability, appropriate relief in the definition been to the instance remand would finding there is were such a plan with 1. if there the instructions Even case to —and any alleged error with re- waived not—Texaco to take evidence. additional
13H added; deleted)).2 (emphasis quotation marks job alternate as a prerequisite to termination prior Cases decided to Firestone Tire and long-term disability benefits,” as the ma- Bruch, Rubber v. though Co. reviewed jority under Maj. Op. asserts. at 1308. Texaco arbitrary capricious standard, the and argues also instead plan that its does not contain application determined that of the two-step qualification element at all. Texaco prof- process See, mandatory. e.g., one, one, Denton fers only point of error: Bank, First National The District Court erred in holding that (5th Cir.1985) (“First, the court must deter- the Long-Term Texaco Disability Plan re- mine interpretation the correct of the Plan’s quired the determination plain- whether provisions. Second, the court must deter- was or could qualified become to per- tiff mine whether the Plan administrators acted work for which he physically form arbitrarily capriciously.” or (emphasis add- capable of performing prior any termi- ed)). nation of disability benefits under added). (Emphasis Plan.4 To legally establish the interpreta- correct Texaco, tion of plan, a benefit iv, courts Inc. Brief 16. consider 1) plan whether the given administrator has Texaco’s deletion the second element— plan 2) construction, a uniform whether one of two elements in “permanent interpretation comports with a fair read- total disability” definition —is anything but a ing 3) plan, whether different reading” “fair plan. Additionally, Tex- interpretations will result in un- aco claimed that administering the anticipated Jordan, costs. 56; 900 F.2d at plan under the correct construction will re- Wildbur Co., v. ARCO Chemical sult in expenditure of unanticipated costs. (5th Cir.1992). 637-38 Thus, have no in- under Wildbur, Jordan and Texaco’s formation as to the Texaco interpretation administra- legally, is indeed previous tor’s interpretations of the patently, incorrect. It directly conflicts with plan. However, it seems clear —and the ma- the clear language in Long-Term Dis- jority apparently agrees Long ability Plán rendering totally nugatory a —that Disability Term requires Plan Texaco to element in prove things: two Texaco prove must A legally incorrect interpretation does not question physically is capa- automatically signal an abuse of discretion. ble of performing joba (“physical-capability must Courts consider the following in review-’ element”), prove and it must that “he or she ing plan interpretations for abuse of discre- is, become, may or qualified perform [to 1) tion: whether internally is consis- job] by training, education, experience” or tent under the interpretation, administrator’s element”).3 (“qualification 2) the any existence regulations relevant completely Texaco ignores qualification formulated appropriate plan’s in the “permanent element 3) agencies, total dis- background factual ability” definition. argue It does not that the administrator’s determination and “plan does not require the availability any of an inferences of good a lack of faith. Wild- spect finding, appeal for it did not on regular comparable duties of his or job her or ground. assignment Thereafter, Company. “permanent "disabled” or disability” total Employe means unable majority's explanation 2. The disregarding is, job become, may which or he she or asserting these that the administra- cases— qualified by training, experience. or tor did not abuse finding discretion Mr. could become 4.Hence, majority postures job misleading. the issue it ad- explained As ear- —is lier, dresses. administrator did not inter- finding. administrator made no such pret phrase 'any is, "the for which he ... qualified’ actually to include Article 2.07 of the reads: ” *10 required only ‘sedentary work.’ disability” "Permanent total Maj. Op. (emphasis “disabled" original). at 1308 Texaco during means that the first 24 months follow- makes clear the fact that the administrator inter- ing Employe’s date, separation LTD preted qualification the phrase being the as com- Employe perform is unable to pletely the normal non-existent.
1312 had review committee the benefit ing that Additionally, “[w]hen bur, at 638. F.2d 974 plan, this Court incorrectly the plan a construed interpretation of administrator’s] [the language in that SONAT express facts to decide upon three with relied in direct conflict is 1) of very strong indication members discretion: is a had abused its plan, this action Id. all capricious behavior.” were SO- committee arbitrary and the benefit review of 2) officers, Brother International committee’s corporate v. (quoting Batchelor NAT Pen Local 861 plan Electrical Workers benefit hood of the reduced interpretation of Fund, 441, in- and Retirement sion SONAT’s outlays and therefore advanced Cir.1989)). Moreover, (5th plan unless a 3) expense, 445 and employee’s at the terests interpretation that his shows justify its inter- properly failed to committee reasonable, his participants, benefits by showing that pretation of the incorrect, of the con interpretation but thereby. benefitted participants be would if it advances of discretion an abuse stitutes at 116. expense of fiduciary’s at the interest strikingly similar to are The facts in Jones Id; Blue Brown v. beneficiary. affected plan administra- case. The facts in this Alabama, Inc., 898 and Blue Shield Cross of Also, inas employee.5 Texaco here was a tor Cir.1990), (11th cert. de 1556, 1566-67 F.2d Jones, interpretation of Texaco’s nied, 111 S.Ct. 498 U.S. reducing out- its advances interests SONAT, (1991); v. accord Jones L.Ed.2d 701 employees: lays expense at the disabled Cir.1993). 113, 116 F.2d to discon- interpretation allows Texaco That view, of each of these my application In employees payments to those disability tinue points emphati- to the facts of case rules who, though physically The adminis- cally of discretion. to an abuse to become job, and unable unqualified of an entire element trator’s omission Finally, Texaco perform a qualified to completely disability definition is permanent interpretation justify its attempted not has directly and conflicts inconsistent by showing plan participants inter- plan. Texaco’s plain language of the qualifica- by the deletion the are benefitted anything reason- but pretation therefore Wildbur, Jones, Thus, under tion element. rea- a construction were if such able. Even Brown, undoubtedly abused Texaco finding certainly it is not —a sonable —and plan. The interpreting its discretion inevitable, of discretion would still correctly granted Mr. therefore construction for the administrator’s summary judgment. Duhon’s motion at the ex- promotes Texaco’s interests administrator’s Duhon. pense of The sufficiently proved Mr. Mr. Had Texaco proving makes interpretation qualified to Duhon was or could have inordinately easier and there- disability no appealed on that perform a —and good a lack of inference of fore raises an might with the agree ground writer —this faith. However, majority’s of this case. disposition sufficiently proved could have Texaco never acknowledges, Further, majority quali- or could become that Mr. Duhon was here. This in interest possible conflict exists job on the record before fied situ- eonflict-in-interest faced a similar Court record belies The SONAT, There, administrator. Inc. ation in Jones majority’s that Mr. Duhon is conclusion Natural employer, plaintiff Southern sued some identi- the functions of (“SONAT”), “able challenging SONAT’s Co. Gas Maj. Mr. Duhon’s job.”6 Op. at 1308. fiable After determin- denial rec- fact, Disability specifi- administrative record. Long-Term Plan In shall, It any included at least exhibits. ord cally Company “[t]he states more, case, was not forth- for Texaco permanent contained even coming what constitutes commenced, turning record over the administrative disability, when the same total fact, Mr. Duhon to Mr. counsel such determina- Duhon. or alter reverse time added). complained district court times several (Emphasis tion.” comply with his re- refusal to about Texaco’s appel- record. The majority's “empha- quests for the administrative belies the 6. The also record affirmatively indicate part late record does made a sis” that six exhibits were *11 family physician and one Texaco’s own which he qualified “employable —is physicians throughout concluded without the work place today.” contradiction pre- That sumption is, best, specious. that Mr. physically perma- This writer is more than confident that senior citizens nently of performing “any job for engaged in fruitful employment throughout qualified.”7 Hence, which he is Texaco, nation; however, this those citizens are not bearing the proof burden of on both the hindered physical and other- limitations — physical-capability qualifica- element and the wise—which Mr. Duhon endures. element, tion prove that Mr. Duhon could qualified have become per- Mr. Duhon pointed properly to the lack of job. form a qualification evidence of the element to the court, and Texaco did not contend
However, Texaco failed —indeed refused— that such evidence existed. Under the Su-
to show that Mr. Duhon could have become preme Court’s clear mandate in Celotex
qualified.
so
Contrary
majority’s
to the
ren- Carp. Catrett,
Mr. Duhon sufficiently met
facts,
dition of the
provides
the record
no his burden of proving
genuine
that no
issue
information whatever as to Mr.
prior
fact
material
existed.
317, 325,
477 U.S.
experience
“work-a-day
in the
2548,
world”
2554,
other
(1986)
S.Ct.
passed graduation since his in 1947.8 Noth-
ing in the record reveals that Mr. Duhon
ever used or honed of the skills he
gained in school—whether reading, writing, majority otherwise. Yet presumes
that Mr. Duhon —a man with limited work
experience and limited who cannot
bend, stoop, squat, or lift twenty- more than pounds,9
five who cannot stand longer for thirty
than minutes at a requires time and
special chair sitting,10 and who is physi-
cally incapable completely complied
Texaco discovery with those Lahasky, 9. Dr. physician, a Texaco determined requests. that Mr. Duhon anything could not lift at all. Interestingly, 7. reviewing after conclusions majority correctly here, notes that no medical three doctors consulted Texaco’s own support department health records Mr. Duhon’s advised statement that he Texaco to continue long-term Mr. Duhon's stand longer cannot than 30 minutes and requires However, special sitting. chair for 8. Texaco did not even direct district court's Texaco, which proving shouldered the burden of attention to high Mr. Duhon’s school education. disabled, that Mr. Duhon permanently was not Texaco instead rested its case in the district proffered no evidence which Mr. rebutted Du- court, Court, as it position on its hon’s standing claim. His sitting claimed require proof does not that an undisputed. limitations are therefore employee is can