Gross v. Carlisle: Fifth Circuit Clarifies the Employee’s Dual Burden—Proving a “Vacant Position” and Addressing Every Ground on Appeal under the ADA

Introduction

In Gross v. Carlisle Construction Materials, L.L.C., No. 24-60382 (5th Cir. Aug. 22, 2025), the United States Court of Appeals for the Fifth Circuit affirmed a district court’s grant of summary judgment against Brenda Gross, a long-time production operator who alleged discriminatory discharge and failure to accommodate under the Americans with Disabilities Act (“ADA”).

The decision is significant for two reasons. First, it underscores the employee’s evidentiary burden to identify an actually vacant position at the time of termination when reassignment is sought as a reasonable accommodation. Second, it reinforces an often-overlooked appellate principle: an appellant must challenge every independent ground upon which summary judgment was granted; failure to do so is fatal to the appeal.

Summary of the Judgment

The Fifth Circuit, in an unpublished per curiam opinion, ruled as follows:

• Discriminatory Discharge Claim: Affirmed because Gross (a) did not prove she was terminated “because of” her disability, and (b) failed on appeal to contest two of the three independent bases on which the district court had entered judgment.
• Failure-to-Accommodate Claim: Affirmed on the ground that Gross was not a “qualified individual.” She could not perform the essential functions of her position and failed to point to any vacant alternative job that reasonable accommodation would render performable at the time of her discharge.

Analysis

Precedents Cited

• Cannon v. Jacobs Field Servs. N.A., Inc., 813 F.3d 586 (5th Cir. 2016) – standard of review for summary judgment and prima facie ADA framework.
• EEOC v. LHC Group, Inc., 773 F.3d 688 (5th Cir. 2014) – elements of discriminatory discharge under the ADA.
• Neely v. PSEG Texas, Ltd. P’ship, 735 F.3d 242 (5th Cir. 2013) – three-part test for failure-to-accommodate claims.
• Foreman v. Babcock & Wilcox Co., 117 F.3d 800 (5th Cir. 1997) – employer not required to create vacancies; reassignment viable only to an existing open position.
• Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755 (5th Cir. 1996) – “qualified individual” assessed at time of termination.
• Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795 (1999) – SSDI receipt not automatic bar to ADA claims but plaintiff must reconcile assertions.
• Several other Fifth Circuit cases (e.g., Jenkins v. Cleco Power, Toronka v. Continental Airlines, Lithcon Petroleum) illustrate burdens of proof and appellate waiver, each of which the panel leveraged to support its conclusions.

Legal Reasoning

1. Discriminatory Discharge

The panel applied the McDonnell-Douglas burden-shifting framework. Even assuming Gross could satisfy the first two prongs (disability and qualification), the district court found—and the Fifth Circuit saw no challenge to—two fatal holes: absence of causal nexus and failure to show pretext. Because Gross’s brief addressed only the “qualified individual” issue, the unchallenged bases stood unrebutted, compelling affirmance under the “waiver” rule of Lithcon Petrol.

2. Failure to Accommodate

1. Qualified Individual. The court looked at the job’s essential functions—70 % standing/lifting—and Gross’s own testimony that she could no longer stand or walk for requisite periods. This admitted inability rendered her unqualified unless a reasonable accommodation existed.
2. Reasonable Accommodation – Reassignment. Under 42 U.S.C. § 12111(9)(B), reassignment is viable only to a vacant position. Gross pointed to past, not contemporary, openings (e.g., quality-control lab, receiving clerk) and conceded no vacancy existed when she was terminated. Fifth Circuit precedent (Foreman, Rogers) forecloses relief where no opening exists.
3. Interactive Process. Because Gross was not “qualified,” any alleged breakdown in the interactive dialogue or employer’s refusal to modify job duties could not resuscitate her claim.

Impact

The decision, although unpublished, is likely to be cited for two recurring ADA litigation hurdles:

• Evidentiary Burden on the Employee: Plaintiffs must marshal concrete evidence of a vacant position open at the time of termination. Aspirational or past openings will not suffice.
• Appellate Strategy: When summary judgment rests on multiple, independent grounds, appellants must explicitly attack each. The ruling provides a sharp reminder that overlooking any ground is “game over.”
• Practical HR Policies: Employers may adopt policies terminating employment upon transition to long-term disability, provided the policy is uniformly applied and a contemporaneous vacancy search confirms no slots exist.

Complex Concepts Simplified

• Qualified Individual: An employee who can perform the core duties of the job either without help or with reasonable adjustments (e.g., modified schedule, special equipment). If no accommodation permits performance, the individual is unqualified.
• Reasonable Accommodation: Any change in the work environment or in how tasks are customarily done that enables a disabled employee to perform essential job functions—so long as it does not impose “undue hardship” on the employer. Reassignment is one category, but only if an open job exists.
• Vacant Position: A job that is actually open and available for bidding at the relevant time, not one that might open in the future or was filled in the past.
• Pretext: A false reason offered by the employer to disguise discriminatory intent. The employee must produce evidence that the stated reason is not the real one.
• Summary Judgment: A procedural device allowing the court to dispose of a case without trial where no genuine dispute of material fact exists. On appeal, the review is “de novo,” meaning the appellate court gives no deference to the lower court’s legal rulings.

Conclusion

Gross v. Carlisle sharpens two doctrinal edges of ADA jurisprudence in the Fifth Circuit: the necessity for plaintiffs to (1) pin-point an existing vacancy for reassignment and (2) address every dispositive ground on appeal. By affirming summary judgment, the panel reinforces employers’ defenses when employees cannot perform essential job functions and no alternative openings exist. Simultaneously, it serves as a cautionary tale to litigants and counsel: strategic omissions in briefing can doom an otherwise arguable claim. Future ADA litigants within the Fifth Circuit—and likely beyond—must heed the dual burden crystallized in this case.