author: RHESA HAWKINS BARKSDALE, Circuit Judge:

text:
    Phyllis ELLISON, Plaintiff-Appellant, v. SOFTWARE SPECTRUM, INC., Defendant-Appellee.
    No. 95-10704.
    United States Court of Appeals, Fifth Circuit.
    May 30, 1996.

      T. Wesley Holmes, James A. Fisher, Wendy R. Blight, Rader, Campbell, Fisher & Pyke, Dallas, TX, for plaintiff-appellant.
    Donald Edward Uloth, Jennifer Burr Altabef, Locke, Purnell, Rain & Harrell, Dallas, TX, for defendant-appellee.
    Before BARKSDALE, DeMOSS and PARKER, Circuit Judges.
   RHESA HAWKINS BARKSDALE, Circuit Judge:

Phyllis Ellison, who was treated for breast cancer, challenges the summary judgment granted her employer, Software Spectrum, Inc. (SSI), on her Americans with Disabilities Act (ADA) claim, contending, inter alia, that a material fact issue exists on whether she had the requisite “disability” under the ADA 42 U.S.C. § 12102(2). Concluding otherwise, we AFFIRM.

I.

In January 1992, Ellison was employed as a “returns person” in SSI’s Product Operations Department, after having worked there for two years as a temporary employee. The next January, when the returns position was eliminated, Ellison became a salaried buyer in the same department. She received a six percent raise after her January 1993 performance review.

In August 1993, Ellison learned that she had breast cancer, immediately had a lumpectomy, and received daily radiation treatment from mid-September through that October. She did not miss work while undergoing treatment but, at her request, SSI allowed her to work on a modified schedule. She arrived at work at 10:30 a.m. following her radiation therapy, skipped her lunch hour and morning break, and took work home. Improving steadily after the treatment ended, Ellison felt “back to normal” by February 1994.

Ellison received a lower evaluation on her January 1994 performance review, and received only a three percent raise; the company average was five percent. And, in early 1994, SSI decided to reduce the number of employees in Ellison’s department from 35 to 31, effective that April. Three positions were eliminated, the number of buyers was reduced from eight to six, and a returns position was created. John Logan, Ellison’s supervisor, and Jim Duster, Director of the Product Operations Department, evaluated and ranked each of the 35 employees. On March 2, Ellison and three other employees were informed that they had 30 days to find other positions in the company or leave. A vacancy developed for the returns position, however; based on her rating, Ellison was next in line for it. She was offered the position and accepted it in mid-March.

Five months later, Ellison filed suit in state court against SSI, claiming violations of the ADA and the Family Medical Leave Act (FMLA), as well as intentional infliction of emotional distress under state law. After SSI removed the action to federal court, Ellison amended her complaint to add an ERISA claim. The district court granted summary judgment for SSI on all but the FMLA claim, and entered a Rule 54(b) judgment for the ADA, ERISA and emotional distress claims.

II.

Ellison contests the summary judgment only on her ADA claim. As is well known, we review a summary judgment de novo, applying the same standard as the district court: factual issues are considered in the light most favorable to the nonmovant, and the “judgment is proper when no issue of material fact exists and the moving party is entitled to judgment as a matter of law”. Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir.1995); Fed.R.Civ.P. 56. “[T]he substantive law will identify which facts are material”, and “[a] dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

For the ADA claim, the court held that Ellison’s breast cancer was not a requisite “disability” within the meaning of the ADA Therefore, it did not rule on the other elements of that claim. (Likewise, because we conclude that summary judgment as to disability is proper, we need not reach those other elements, eliminating also the sub-issue of whether to remand for the district court to consider them first.)

The ADA defines “disability” using three alternatives:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). It is undisputed that Ellison’s cancer was an “impairment”. Because she claims that a material fact issue exists for each of the three § 12102(2) alternatives, we will examine each subpart in turn.

A.

Subpart (A) concerns whether Ellison’s impairment “substantially limit[ed]” one or more of her “major life activities”. Although the ADA does not define “substantially limits” and “major life activities”, the regulations promulgated by the Equal Employment Opportunity Commission “provide significant guidance”. Dutcher, 53 F.3d at 726. They state that “[mjajor life activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working”. 29 C.F.R. § 1630.2(i). In district court, “working” is the only major life activity for which Ellison claimed a substantial limitation.

The regulations provide that whether an impairment substantially limits a major life activity is determined in light of

(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.

29 C.F.R. § 1630.2(j)(2). And, for the major life activity of “working”, the regulations provide that

(i) The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.
(ii) In addition to the factors listed in paragraph (j)(2) of this section [quoted above], the following factors may be considered in determining whether an individual is substantially limited in the major life activity of “working”:
(A) The geographical area to which the individual has reasonable access;
(B) The job from which the individual has been disqualified because of an impairment, and the number and types of jobs utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (class of jobs); and/or
(C) The job from which the individual has been disqualified because of an impairment, and the number and types of other jobs not utilizing similar training, knowledge, skills or abilities, within that geographical area, from which the individual is also disqualified because of the impairment (broad range of jobs in various classes).

29 C.F.R. § 1630.2(j)(3). As hereinafter discussed, in light of the statute and these regulations, a material fact issue does not exist for this subpart.

In support of its summary judgment motion, SSI submitted the affidavit of Duster, the Product Operations Department director; he stated that no special accommodations were necessary for Ellison, and that at all times, she had demonstrated the physical and mental ability to work. SSI also submitted excerpts from Ellison’s deposition; she testified that the radiation treatment made her nauseous and tired and she suffered an allergic reaction to the radiation which caused painful swelling and inflammation, but that the treatment did not affect her ability to do her job and she never missed a day of work. She testified further that her normal workday was seven and one-half hours; that she was able to work almost that amount while receiving treatment, by working from 10:30 a.m. until 6:00 p.m., with no lunch and only an afternoon break; and that she improved steadily after the radiation treatment was completed, and was back to normal in three or four months (by February 1994).

In opposition, Ellison submitted her physician’s deposition; he stated that cancer can cause death if not treated and causes emotional distress from the fear that it will return. She submitted also the deposition of her former supervisor, Logan; he stated that Ellison was not as effective at work, and that the quality of her work suffered while she was receiving radiation treatment. And, in her affidavit, Ellison detailed the nausea, fatigue, swelling, inflammation, and pain she experienced as a result of the treatment and the medication she was given for her allergic reaction to the radiation, but stated that, although she constantly felt sick and fatigued, she “could perform [her] essential job responsibilities ... so long as [SSI] allowed [her] the accommodation of a modified work schedule so that [she] could attend appointments with [her] doctors and receive [her] treatments”.

As stated, the summary judgment evidence, viewed in the light most favorable to Ellison, does not create a material fact issue on whether her cancer and treatment “substantially limited” her major life activity of working. Obviously, her ability to work was affected; but, as reflected in the above-quoted statute and regulations, far more is required to trigger coverage under § 12102(2)(A).

Along this line, Ellison contends that it is irrelevant both that SSI made reasonable accommodations in her work schedule and that her cancer was treated successfully. In support, citing 29 C.F.R. Pt. 1630, App. § 1630.2(h) (the appendix is the EEOC’s “Interpretive Guidance” to the ADA), she asserts that “ADA regulations require that the existence of one’s disability be determined without regard to the effects of mitigating measures such as drugs or prosthesis”, and maintains that acceptance of a contrary position would both “punish employees for seeking reasonable accommodations in order to continue working instead of taking medical leave” and “undermine the salutary purpose of the ADA by discouraging, rather than encouraging, gainful employment”.

Ellison did not present this contention in district court; therefore, we will not consider it. See, e.g., Stults v. Conoco, Inc., 76 F.3d 651, 657 (5th Cir.1996) (internal quotation marks and citation omitted) (“[although on summary judgment the record is reviewed due novo, this court for obvious reasons, will not consider evidence or arguments that were not presented to the district court for its consideration in ruling on the motion”).

B.

Concerning subpart (B) of § 12102(2), Ellison maintains that a material fact issue exists on whether she had a “record” of having a substantially limiting impairment. The regulations state:

Has a record of such impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

29 C.F.R. § 1630.2(k).

SSI presented the affidavit of Celia Boynton, Employee Relations Representative in its Human Resources Department; she stated that nothing in Ellison’s personnel file has ever indicated that she was substantially limited by a physical or mental impairment either in her ability to perform her job or in any other respect. Ellison did not present any evidence to counter that affidavit. Moreover, contrary to the alternative position advanced by Ellison, SSI’s acquiescence in her modified schedule to accommodate her treatment does not create a material fact issue on whether she had the requisite record, in that she did not miss a day of work and her ability to work was not substantially limited.

C.

Finally, Ellison relies upon subpart (C) (“regarded as having such an impairment”), asserting that SSI’s comments to, and about, her create a material fact issue on whether it regarded her cancer as a substantial limitation on her ability to work. The EEOC regulations define “regarded as having such an impairment” as follows:

(1) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a covered entity as constituting such limitation;
(2) Has a physical or mental impairment that substantially limits major life aetivities only as a result of the attitudes of others toward such impairment; or
(3)Has none of the impairments defined in paragraph (h)(1) or (2) of this section but is treated by a covered entity as having a substantially limiting impairment.

29 C.F.R. § 1630.2(1).

As noted, an employer does not necessarily regard an employee as having a substantially limiting impairment simply because it believes she is incapable of performing a particular job; “[t]he statutory reference to a substantial limitation indicates instead that an employer regards an employee as [substantially limited] in his or her ability to work by finding the employee’s impairment to foreclose generally the type of employment involved”. Forrisi v. Bowen, 794 F.2d 931, 935 (4th Cir.1986); see also 29 C.F.R. § 1630.2(j)(3)(i).

In claiming that SSI regarded her cancer as a substantially limiting impairment, Ellison relies on four comments by her supervisor, Logan. The first three fall far short of creating a material fact issue.

First, when Ellison informed Logan that she needed a modified work schedule in order to receive daily radiation treatment, Logan expressed his irritation by suggesting that she get a mastectomy instead because her breasts were not worth saving.

Second, when Ellison suffered from nausea after returning from a treatment, Logan asked her where she had been; a co-worker explained that Ellison had been in the restroom because she was sick. When Ellison stated that she got sick every time she thought of eating or drinking, Logan responded that it had not affected her weight.

Third, upon Ellison arriving at work following a radiation treatment, a power outage occurred at SSI; the employees were told to evacuate the bufiding. When employees responded that they could not see because it was dark, Logan laughed and said, “[D]on’t worry about it. Follow Phyllis ... see, look over there. She’s glowing.”

It goes without saying that these comments are beneath contempt (when deposed, Logan was no longer employed by SSI); but, as stated, they do not create a material fact issue on whether SSI regarded Ellison as having a substantially limiting impairment. The final comment, however, presents a closer question.

During a meeting in 1994, in which the departmental reduction was discussed, a member of the human resources department asked whether any of the potentially affected employees had special circumstances that needed to be considered; Logan responded, “Phyllis has cancer”. Ellison maintains that the remark creates a material fact issue on whether SSI’s decision to discharge her was based on its perception that she had cancer. SSI counters that the remark reflects nothing more than its awareness of Ellison’s cancer and, in fact, could be interpreted as a request that she be given special consideration in determining which employees would be affected by the reduction.

We must consider this comment in the light most favorable to Ellison, but we cannot do so in isolation. As noted, when the returns position became open, it was offered to Ellison and she accepted it. And, as stated in her deposition, she continues to earn the same salary, to be eligible for the pay on performance plan, and to receive the same employee benefits. The fact that SSI offered Ellison another position in the company, as well as the fact that three other employees, in addition to Ellison, were affected by the reduction, precludes there being a material fact issue as to whether Ellison was included in the affected group because SSI “regarded [her] as having ... [a substantially limiting] impairment”.

III.

For the foregoing reasons, the judgment on Ellison’s ADA claim is

AFFIRMED.

      . Regulations promulgated by the Equal Employment Opportunity Commission define a physical impairment as:
      Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine....
      29 C.F.R. § 1630.2(h)(1).

      . Here, as discussed infra in this part, Ellison asserts that all major life activities would have been substantially limited, as part of her contention that her cancer treatment is irrelevant to whether the cancer was an ADA disability. As also discussed infra, because this was not raised in district court, we do not consider major life activities other than working. limitation be determined without regard to mitigating measures, it would have provided for coverage under § 12102(2)(A) for impairments that have the potential to substantially limit a major life activity.

      . As noted, the appendix is not part of the regulations, but is, instead, the EEOC's interpretation of those regulations. See 29 C.F.R. Pt. 1630, App., Introduction. Furthermore, the part Ellison relies on addresses impairment, not disability, stating that
      [t]he existence of an impairment is to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices.... For example, an individual with epilepsy would be considered to have an impairment even if the symptoms of the disorder were completely controlled by medicine. Similarly, an individual with hearing loss would be considered to have an impairment even if the condition were correctable through the use of a hearing aid.
      29 C.F.R. Pt. 1630, App. § 1630.2(h) (emphasis added). Again, it is undisputed that Ellison’s cancer was an impairment; but, "[a] physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA [because t]he statute requires an impairment that substantially limits one or more of the major life activities”. Dutcher, 53 F.3d at 726.
      We recognize, consistent with Ellison's contention, that App. § 1630.2(j) does provide that "[t]he determination of whether an individual is substantially limited in a major life activily must be made on a case by case basis, without regard to mitigating measures such as medicines, or assistive or prosthetic devices”. 29 C.F.R. Pt. 1630, App. § 1630.2(j). Arguably, on the other hand, had Congress intended that substantial

      . Although Forrisi concerns a claim under a similar provision of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq., "the substantial equivalency of the definition of disability under the Rehabilitation Act and the ADA strongly suggests that prior constructions of the Rehabilitation Act should be generally applicable in construing the ADA definition of 'disability' ”. Dutcher, 53 F.3d at 727 n. 14. Dutcher cites the above-quoted portion of Forrisi with approval. Id. at 728 n. 20.


source: Caselaw Access Project

author: BENAVIDES, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Oscar Orlando RIVAS, Defendant-Appellant.
    No. 95-20294
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    May 30, 1996.

      James Lee Turner, Paula Camille Offenhauser, U.S. Attorney’s Office, Houston, TX, for plaintiff-appellee.
    Jerome McConnell Godinich, Jr., Houston, TX, for defendant-appellant.
    Before SMITH, BENAVIDES and . DENNIS, Circuit Judges.
   BENAVIDES, Circuit Judge:

Oscar Orlando Rivas appeals his conviction after a plea of guilty for using or carrying a firearm during a drug trafficking offense and his sentence for conspiracy to possess with intent to distribute cocaine. In our view, the principal issue presented on this appeal is Rivas’s attack on the sufficiency of the factual basis for his guilty plea. Because we conclude that the factual basis was sufficient and, additionally, that the district court did not err in sentencing Rivas, we affirm.

I. FACTS AND PROCEDURAL HISTORY

In May 1994, Department of Public Safety (DPS) officers sent an informant to Dare Motors in Houston to contact Domingo Rodriguez in connection with a drug trafficking investigation in Bryan/College Station, Texas. The attempt was unsuccessful, and no further contact was made until September.

In September, Rivas talked to the confidential informant regarding the drug trafficking at Dare Motors and the lack of reliability of the source of the drug supply. The informant purportedly would take the place of the unreliable supplier. The tentative agreement was that thirty kilograms of cocaine would be provided. However, because the circumstances of the requested delivery were unacceptable to the task force, the transaction did not take place.

On October 5, 1994, Rivas called the informant, indicating that “his people were ready to go ahead.” Thereafter, DPS undercover officers contacted Rodriguez and arrangements were made for the delivery of ten kilograms of cocaine that Rodriguez would pay for at the time of delivery, five kilograms of cocaine that would be fronted by the officers to Rodriguez, and also the delivery of an additional fifteen kilograms at a later date.

On October 6, as planned, Zeek Cavazos, the undercover officer, remained at Dare Motors with Rodriguez and Luis Gonzalez to view the money, and Rivas left with the informant to inspect the cocaine. After Rivas and the informant left Dare Motors in the undercover vehicle, they were stopped by DPS officers on the freeway. The officers arrested Rivas, who had a 9mm Beretta pistol underneath his seat.

After initially entering a not guilty plea, Rivas pleaded guilty at rearraignment, without the benefit of a plea agreement, to two counts of a three-count indictment: conspiracy to possess with intent to distribute cocaine (Count I) and using or carrying a firearm during a drug-trafficking offense (Count II). The district court sentenced him to 151 months in prison — the bottom of the guideline range — as to Count I, to a consecutive five-year term as to Count II, and to concurrent five- and three-year terms of supervised release.

II. SUFFICIENCY OF THE FACTUAL BASIS FOR THE PLEA

Rivas argues that the district court erred in finding that there was a sufficient factual basis for his plea of guilty to the offense of using or carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c). The district court’s acceptance of a guilty plea is considered a factual finding that there is an adequate basis for the plea. We therefore review this finding for clear error. United States v. Adams, 961 F.2d 505, 509 (5th Cir.1992).

Section 924(c)(1) provides, in pertinent part, that:

Whoever, during and in relation to any crime of violence or drug trafficking crime ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years....

Relying on the recent Supreme Court decision in Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), Rivas contends that the factual basis for the guilty plea is insufficient to show that he “used” a firearm during the offense. In Bailey, the Supreme Court held that “§ 924(c)(1) requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense.” — U.S. at -, 116 S.Ct. at 505 (emphasis in opinion). The Court then set forth examples of activities that constitute active employment of a firearm, including brandishing, displaying, striking with, and of course, firing or attempting to fire the gun.

In the instant case, at the rearraignment, while detailing the factual basis for the plea, the Government stated that “[a]t the time [Rivas] was arrested he was carrying a 9mm Beretta in the front of his pants, which he had his hand on when the officer convinced him that probably wouldn’t be a good idea.” The district court subsequently inquired whether the facts recited by the Government were true, and Rivas replied “[n]o.” Defense counsel explained that “[t]he only thing he is saying, Judge, is that the pistol he had was underneath the seat. He is saying it was underneath the seat as opposed to being in the front of his pants.” (emphasis added). The district court responded that for the purposes of the guilty plea, it “doesn’t matter.” (emphasis added).

It is clear that, because the rearraignment was held prior to Bailey, the district court, at that time, was correct. Our prior cases held that all that was needed to establish “use” was “that the firearm was available to [the defendant] to facilitate the commission of an offense.” United States v. Rocha, 916 F.2d 219, 237 (5th Cir.1990), cert. denied, 500 U.S. 934, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991) (citation omitted). We need not determine whether Rivas used his firearm in relation to this offense. In this regard, we note that the Supreme Court in Bailey remanded the case for consideration whether the evidence satisfied the “carrying” prong of § 924(e). Rivas pleaded guilty to count two of the indictment, which charged him with using or carrying a firearm. Accordingly, we must determine whether the factual basis is sufficient to meet the “carrying” requirement of § 924(c). If so, the district court’s response of it “doesn’t matter” would be correct in this case.

As recognized by the Eleventh Circuit, because Bailey did not address the “carrying” requirement, prior precedent analyzing that prong was “not affected.” United States v. Farris, 77 F.3d 391, 395 n. 4 (11th Cir.1996). Prior to Bailey, in United States v. Pineda-Ortuno, 952 F.2d 98, 104 (5th Cir.), cert. denied, 504 U.S. 928, 112 S.Ct. 1990, 118 L.Ed.2d 587 (1992), we examined the “carrying” requirement of § 924(c) and explained that the “word ‘carry derives from the french carter, which means ‘to transport in a vehicle.’ ” (quoting Webster’s Third International Dictionary 353 (1966)). Webster provided the following definitions of “carry”: “ ‘to move while supporting (as in a vehicle or in one’s hands or arms): move an appreciable distance without dragging: sustain as a burden or load and bring along to another place.’ ” Id. We observed that the legislative history did not indicate that the word “carry” should be given any meaning but its ordinary or literal meaning. Significantly, we also recognized that carrying on the person is different from carrying in a vehicle “because the means of carrying is the vehicle itself.” Thus, we held that the “carrying” requirement of § 924(c) is met “if the operator of the vehicle knowingly possesses the firearm in the vehicle during and in relation to a drug trafficking crime.” Id. at 104. Accord United States v. Speer, 30 F.3d 605, 612 (5th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 768, 130 L.Ed.2d 664 (1995); United States v. Ruiz, 986 F.2d 905, 910 (5th Cir.), cert. denied, — U.S. -, 114 S.Ct. 145, 126 L.Ed.2d 107 (1993).

Although Rivas was a passenger rather than the driver of the vehicle, we do not believe that such a distinction means that he was not “carrying” the firearm. At his rearraignment, Rivas did not contest the part of the factual basis indicating that he apparently was going for the gun “when the officer convinced him that probably wouldn’t be a good idea.” “The only thing” Rivas disputed was that the gun was in the waistband of his pants. At sentencing, Rivas admitted that “the pistol he had was underneath the seat.” (emphasis added). In his written objections, Rivas stated “that the pistol he had in his possession was placed underneath the car seat.” He therefore admitted to knowingly possessing the firearm in the vehicle. Further, it is undisputed that he had the gun during or in relation to the drug trafficking offense. As such, Rivas’s actions were sufficient to constitute carrying under § 924(c).

III. SENTENCING CHALLENGES

Rivas also challenges his sentence for conspiracy to possess with intent to distribute cocaine. We find that Rivas’s complaints that the district court erred in denying him a reduction for acceptance of responsibility and in failing to make express findings regarding the amount of cocaine attributable to him are without merit. We note that the district court did not clearly err in denying him the reduction for acceptance of responsibility inasmuch as the record reflects that Rivas attempted to trivialize and mitigate his significant role in the conspiracy. Further, the district court adopted the findings of the PSR, which clearly reflects that 27 kilograms of cocaine were reasonably foreseeable to him.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . Bailey is applicable to this case because a newly announced rule applies to a criminal case on direct appeal. Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987).


author: REAVLEY, Circuit Judge:

text:
    Richard R. BUCHANAN, Plaintiff-Appellee, v. CITY OF SAN ANTONIO, Defendant-Appellant.
    No. 95-50350.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1996.

      Malinda Ann Gaul, Kala S. Dumont, Gaul & Dumont, San Antonio, TX, for Richard R. Buchanan, plaintiff-appellee.
    Luis Augusto Moreno, Villarreal, Moreno & Ruiz, San Antonio, TX, Don W. King, Jr., City Attorney’s Office for the City of San Antonio, San Antonio, TX, for City of San Antonio, defendant-appellant.
    Before REAVLEY, GARWOOD and JOLLY, Circuit Judges.
   REAVLEY, Circuit Judge:

Richard Buchanan sued the City of San Antonio under the Americans with Disabilities Act (ADA), after the city repeatedly turned down his applications to become a city police officer. The district court awarded him a judgment of $300,000 in compensatory damages, together with back pay, attorney’s fees and interest. We reverse and remand for further proceedings.

BACKGROUND

Buchanan is a patrolman with the Bexar County sheriffs department. He injured his back during a foot chase of a suspect in 1986. He claimed that he fully recovered from this injury. After being off work for a few months, he returned to duty with the sheriffs department, and testified that he has had no recurring problems with his back since that time.

Buchanan wanted to join the San Antonio police force, because the pay and benefits were better than those offered by the sheriffs department. On numerous occasions he applied for a job with the police department, but was always turned down. He last applied for employment with the police department in April of 1992, and was rejected in October of 1992. The dates of his last application and rejection are relevant, since the ADA became effective on July 26, 1992. The ADA is not applied retroactively.

In August of 1993 he filed this suit under the ADA, alleging in general terms violation of the Act due to discrimination on the basis of disability. The case proceeded to trial. At the close of plaintiffs evidence, plaintiff moved for judgment as a matter of law. The motion was based on two specific violations of the ADA which were not pleaded in the complaint. Plaintiff claimed that he was entitled to judgment as a matter of law because the city had (1) subjected him to a physical examination before making a offer of employment, in violation of 42 U.S.C. § 12112(d), and (2) failed to keep information regarding his medical condition confidential and in a separate file, also in violation of 42 U.S.C. § 12112(d).

The district court took the motion for judgment under advisement at the close of the first day of trial. The next morning, the court announced that it was granting the motion, would allow each side a few minutes to look over the court’s proposed charge, and would then charge the jury. By these actions the court made clear that it would not allow the introduction of any additional evidence. The court then instructed the jury that the city had violated the ADA and submitted two special interrogatories to the jury on damages. The jury answered “yes” to the first question, inquiring whether Buchanan “has sustained damages from Defendant City of San Antonio’s violation of the [ADA].” It then awarded $300,000 in compensatory damages for “future pecuniary losses, emotional pain and suffering, inconvenience, and mental anguish.” After the verdict, the district court entered judgment for this amount, and also awarded back pay, attorney’s fees and post-judgment interest.

DISCUSSION

A. Judgment as a Matter of Law

Judgment as a matter of law against a party is proper on an issue if “there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue.” A judgment as a matter of law is appropriate if the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable people could not arrive at a verdict to the contrary.

If anything, an even greater showing is required where, as here, the plaintiff moves for and receives judgment as a matter of law before the jury hears from the defendant. Rule 50 itself only contemplates judgment as a matter of law against a party after that party “has been fully heard on an issue.” While courts have the power to direct a verdict in plaintiffs favor at the close of plaintiffs ease,

[t]his power must nonetheless be exercised with great restraint in order to avoid the possibility that a party will be precluded from presenting facts which make out a question for the jury. Where there is any doubt at all as to the propriety of a directed verdict, district courts should not jump the gun but should wait until both sides have presented their evidence before ruling on motions for directed verdict.

Buchanan did not establish as a matter of law a standard claim of discrimination under the ADA, and does not argue otherwise. The ADA provides that “[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” A “disability” includes “a physical or mental impairment that substantially limits one or more of the major life activities of such individual,” “a record of such an impairment,” and “being regarded as having such an impairment.” A “qualified individual with a disability” means “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”

Buchanan did not establish as a matter of law that he has a “disability,” that he was “a qualified individual with a disability,” or that the city discriminated against him because of his disability. For example, evidence was introduced that Buchanan was rejected not because of his prior back injury, but because he had failed to wait one year from his prior rejection before reapplying, as required by city policy, and because of his prior work history.

B. Premature Physical and Confidentiality

The basis for Buchanan’s motion for judgment as a matter of law was two alleged specific violations of the ADA regarding employer information about an applicant’s medical history. He relied on 42 U.S.C. § 12112(d), which prohibits an employer from conducting a medical examination of a job applicant unless, among other requirements, the employer has already made the applicant a job offer conditioned on a medical examination. This provision of the ADA also provides that a post-offer medical examination is only allowed if (in addition to other requirements and exceptions not relevant here) “information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record.”

Buchanan established through the city’s own records that Buchanan was given a medical examination in August of 1992, after the effective date of the ADA. We cannot agree with the city that it conducted a medical examination only after it had made a conditional offer of employment. While Buchanan did sign an acknowledgement in May of 1992 that he was receiving a conditional offer of employment, the document itself makes clear that the offer was not conditioned solely on a medical examination, but was instead conditioned on successful completion of “the entire screening process,” which included “physical and psychological examinations, a polygraph examination, a physical fitness test, an assessment board, and an extensive background investigation.”

Buchanan did not establish as a matter of law that the city failed to keep medical information obtained after the effective date of the ADA in a separate file and failed to treat such information as confidential. While the evidence clearly showed that information regarding Buchanan’s medical condition was provided to the department officials in charge of hiring decisions after the effective date of the ADA, and that medical information was included in Buchanan’s general personnel file, Buchanan did not establish that this information was obtained after the effective date of the Act. We agree with the EEOC that the ADA does not require the segregation or confidential treatment of medical information obtained before the effective date of the ADA.

C. Proof of Damages

A further gap in support for this judgment is the absence of proof of damage, even if the other predicates had been established, caused by a premature medical examination. Our reading of the ADA requires a causal link between the violation and the damages sought by the plaintiff. The remedies provided under the ADA are the same as those provided by Title VII, 42 U.S.C. §§ 2000e — 4 to 2000e-6, 2000e-8, 2000e-9. Title VII allows a private suit by a plaintiff “aggrieved by the alleged unlawful employment practice.” Generally, relief is not afforded to the plaintiff if he was not hired or otherwise subjected to adverse employment action “for any reason other than discrimination. ...” Title VII does recognize as an unlawful employment practice discrimination “which was a motivating factor for any employment practice, even though other factors also motivated the practice.” However, damages may not be awarded for such a violation if the defendant “would have taken the same action in the absence of the impermissible motivating factor....” In such circumstances relief is limited to certain declaratory and injunctive relief, costs and attorney’s fees. While the Civil Rights Act of 1991 expanded the type of damages which may be recovered under Title VII and the ADA to included punitive and general compensatory damages, compensatory damages, like other damages, are not recoverable under Title VII (and derivatively under the ADA) unless the prohibited employment practice was the cause of the applicant’s rejection.

To be sure, the first interrogatory to the jury asked whether Buchanan had sustained damages “from” the city’s violation of the ADA, and the jury was also instructed that it could only award damages that plaintiff proved were “caused” by the city’s wrongful conduct. However, the jury was not properly instructed that it must find a causal link between the specific ADA violations that were the basis of the directed verdict and the injuries sustained. The jury was never informed that the ADA violations found by the court as a matter of law pertained to the medical examination and disclosure of medical information. Instead, it was instructed only that the court “has determined as matter of law that the City of San Antonio has violated the Americans with Disabilities Act.” There was no finding, by the court or the jury, that Buchanan was not given a job offer because of the medical examination. Again, there was considerable evidence to the contrary. In addition to the evidence discussed above, the jury had before it evidence that the city was aware of Buchanan’s back injury before the effective date of the ADA and that it was able to offer jobs to only a small percentage of applicants. Further, by granting the motion for judgment and cutting off additional evidence, the court deprived the city of an opportunity to offer further evidence that Buchanan would not have received a job offer even if the city had not conducted a pre-offer medical examination.

For the foregoing reasons, we remand the case to the district court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

      . 42 U.S.C. §§ 12101-12213.

      . See 42 U.S.C.A. § 12111 note.

        . Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 588 (5th Cir.1995).

      . Fed.R.Civ.P. 50(a).

      . Texas Farm Bureau v. United States, 53 F.3d 120, 123 (5th Cir.1995).

      . United States v. Vahlco Corp., 720 F.2d 885, 889 (5th Cir.1983).

      . 42 U.S.C. § 12112(a).

      . Id. § 12102(2).

      . Id. §12111(8).

      . For example, a city internal memorandum introduced by plaintiff requested that his application be rejected because of his past employment history and failure to wait one year before reapplying. Although the memo discusses his back injury, it states, as reasons for rejecting the application:
      During the investigation of applicant’s May 12, 1989 application, Officer Burleson was advised by Captain D. Gabehart, for the Bexar Counly Sheriff's Department, that applicant “had a bad attitude, a person that wants to do things his own way regardless of procedures!”] He went on to say that applicant was rigid in his decision making with no flexibility, and that he would not be eligible for rehiring.
      Applicant was enrolled at the U.S. Border Patrol Academy from Sept. '88 to Jan. '89 but was released after failing the mandatory Spanish test. When the Border Patrol Academy Director was contacted regarding applicant’s academic record, I was advised that applicant was also failing several of the other courses, and that he was asked to resign.

        . See EEOC Notice No. 915.002 (May 19, 1994) (Example 3).

      . See 42 U.S.C. § 12117(a).

      . 42 U.S.C. § 2000e-5(f).

      . Id. § 2000e-5(g)(2)(A).

      . Id. § 2000e-2(m).

      . Id. § 2000e-5(g)(2)(B).

      . Id. § 2000e-5(g)(2)(B)(i).

      . 42 U.S.C. § 1981a.

      . In this regard we agree with the Eighth Circuit’s recent analysis in Pedigo v. P.A.M. Transport, Inc., 60 F.3d 1300, 1301-03 (8th Cir.1995).


author: ROBERT M. PARKER, Circuit Judge:

text:
    GUNDLE LINING CONSTRUCTION CORPORATION, Plaintiff, and United States Fidelity & Guaranty Company, Defendant/Third-party Plaintiff/Appellee, v. ADAMS COUNTY ASPHALT, INC., Kimbob, Inc., and Robert M. Mumma, II, Third-party Defendants/Appellants.
    No. 95-20155.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1996.

      Ralph Alan Mdkiff, Clements, O’Neill, Pierce & Nickens, Houston, TX, Warren Wayne Harris, Jill Marie Tillman, Porter & Hedges, Houston, TX, for Gundle Lining Construction Corporation, plaintiff.
    J. Mark Brewer, Patrick E. Gaas, Brewer & Pritchard, Houston, TX, for United States Fidelity and Guaranty Company, defendant-third party plaintiff-appellee.
    Carrón Nicks Armstrong, Dallas, TX, for third party defendant appellants.
    Before BARKSDALE, DeMOSS and PARKER, Circuit Judges.
   ROBERT M. PARKER, Circuit Judge:

This diversity ease was filed in the Southern District of Texas by a Texas corporation seeking to recover on a bond issued by the defendant. The defendant, a resident of Maryland, filed a third-party complaint seeking indemnification from the third-party defendants, who were the principals on the bond. The third-party defendants, all residents of Pennsylvania, filed motions to dismiss wherein they challenged the district court’s in personam jurisdiction. The district court denied their motions. The plaintiff and defendant ultimately settled the underlying claim. The district court then granted summary judgment to the third-party plaintiff on its indemnity claim. The third-party defendants appealed, challenging the district court’s decisions as to personal jurisdiction, venue, and the grant of summary judgment to the third-party plaintiff. Finding that personal jurisdiction was proper as to only one of the third-party defendants, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Adams County Asphalt, Inc. (“Adams Inc.”) contracted with the City of Harrisburg, Pennsylvania to perform a large project (“Harrisburg project”) involving the city’s waste disposal system. Adams Inc. is owned by Robert Mumma II (“Mumma”), who also owns Kimbob, Inc (“Kimbob Inc.”). Adams Inc. obtained a payment bond for the benefit of all persons furnishing labor, material, or both on the Harrisburg project from United States Fidelity & Guaranty Company (“USF & G”). USF & G entered into a Master Security Agreement (“MSA”) with Adams Inc., Kimbob Inc., and Mumma as indemnitors to secure reimbursement to USF & G of any payments it made in good faith on claims against the bond.

Adams Inc., as general contractor, entered into a subcontract with Gundle Lining Construction Corporation (“Gundle”) of Houston, Texas to supply and install certain materials for the Harrisburg project. The project owner had specified that Adams Inc. subcontract with Gundle because Gundle had designed the portion of the project that was to employ Gundle’s materials.

During the course of construction, a dispute arose between Adams Inc. and Gundle regarding the quantity of the material Gundle had agreed to supply for the project and the quality of its installation. Adams Inc. paid Gundle the amount for which it had contracted but refused to pay Gundle for amounts in excess of the original contract.

Rather than pursue Adams Inc. on its claim, Gundle elected to make a claim for payment against the payment bond. After USF & G refused to pay the claim, Gundle filed suit against USF & G in Texas state court to recover on the bond. The suit was then removed to federal district court based upon diversity jurisdiction. Seeking indemnification, USF & G filed third-party complaints against Adams Inc., Kimbob Inc., and Mumma (“third-party defendants”), claiming that it was entitled to recover all amounts paid to Gundle from its indemnitors. Shortly thereafter, Gundle and USF & G settled their action for $121,000 (the amount of Gundle’s claim against the bond), and Gundle agreed to dismiss its claim against USF & G.

The third-party defendants, all non-residents of Texas, filed, inter alia, motions to dismiss for lack of personal jurisdiction. USF & G countered with a motion for summary judgment. In October 1993, the district court denied the third-party defendants’ motions for dismissal. Then, nearly a year and a half later, the district court granted USF & G’s motion for summary judgment. The third-party defendants then timely perfected this appeal.

ANALYSIS

I. Personal Jurisdiction

It is undisputed that none of the parties to this appeal are residents of Texas. When the jurisdictional facts are not in dispute this court conducts a de novo review of the district court’s determination that its exercise of personal jurisdiction over a nonresident defendant is proper. Bullion v. Gillespie, 895 F.2d 213, 216 (5th Cir.1990). In analyzing the district court’s decision to exercise personal jurisdiction over a nonresident defendant, it is important to bear in mind that the plaintiff bears the burden of establishing the district court’s jurisdiction over the nonresident. Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir.1985).

In a diversity suit a federal court has jurisdiction over a nonresident defendant to the same extent that a state court in that forum has such jurisdiction. Wilson v. Belin, 20 F.3d 644, 646 (5th Cir.), cert. denied, — U.S. -, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994). The reach of a state court’s jurisdiction is delimited by: (1) the state’s long-arm statute; and (2) the Due Process Clause of the Fourteenth Amendment to the federal Constitution. Bullion, 895 F.2d at 215. The Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents “doing business” in Texas. Tex.Civ.Prac. & Rem.Code § 17.042. The Texas Supreme Court has interpreted the “doing business” requirement broadly, allowing the long-arm statute to reach as far as the federal Constitution permits. Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990). Consequently, we will analyze the exercise of personal jurisdiction over nonresidents with reference to federal constitutional limits. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702 n. 10, 102 S.Ct. 2099, 2104 n. 10, 72 L.Ed.2d 492 (1982) (the restriction on state power to subject a nonresident to suit is “ultimately a function of the individual liberty interest preserved by the Due Process Clause”).

The exercise of personal jurisdiction over a nonresident will not violate due process principles if two requirements are met. First, the nonresident defendant must have purposefully availed himself of the benefits and protections of the forum state by establishing “minimum contacts” with that forum state. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). The defendant’s conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 296, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980).

Second, the exercise of jurisdiction over the nonresident defendant must not offend “traditional notions of fair play and substantial justice.” Asahi Metal Indus. Co. v. Superior Court, 480 U.S. 102, 113, 107 S.Ct. 1026, 1033, 94 L.Ed.2d 92 (1987) (quoting International Shoe, 326 U.S. at 316, 66 S.Ct. at 158).

The “minimum contacts” prong of the inquiry may be further subdivided into contacts that give rise to “specific” personal jurisdiction and those that give rise to “general” personal jurisdiction. It is indisputable that if there is personal jurisdiction over the defendants in the instant case it exists by virtue of “specific” personal jurisdiction. Consequently, our review is limited to this subdivision of the minimum contacts analysis.

The district court’s exercise of specific jurisdiction is appropriate only when the nonresident defendant’s contacts with the forum state arise from, or are directly related to, the cause of action. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404 (1984). To exercise specific jurisdiction, the court must examine the relationship among the defendant, the forum, and the litigation to determine whether maintaining the suit offends traditional notions of fair play and substantial justice. Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2579, 53 L.Ed.2d 683 (1977).

A Jurisdiction as to Adams, Inc.

1. “Minimum contacts”

Adams Inc.’s contacts with Texas can be summarized as follows: (1) Adams Inc. entered into a contract with Gundle, a Texas entity, pertaining to the construction project in Pennsylvania, (2) it mailed payments to Gundle at Gundle’s Texas address, and (3) it, a nonresident, engaged in communications with a resident during the course of developing and carrying out the contract. We have previously held that the combination of mailing payments to the forum state, engaging in communications surrounding the execution and performance of a contract, and the fact that a nonresident enters into a contract with a resident are insufficient to establish the requisite minimum contacts necessary to support the exercise of personal jurisdiction over a nonresident defendant. See Spademan, 772 F.2d at 1193.

However, the Spademan court was careful to recognize that one factor that might affect the minimum contacts analysis is the actual language present in the contract itself. Id. The court, quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), stated:

If the question is whether an individual’s contract with an out-of-state party alone can automatically establish sufficient minimum contacts in the other party’s home forum, we believe the answer clearly is that it cannot____ Instead, we have emphasized the need for a “highly realistic” approach that recognizes that a “contract” is “ordinarily but an intermediate step serving to tie up prior business negotiations and contemplated future consequences which themselves are the real object of the business transaction.” ... It is these factors — prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing — that must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum.

Spademan, 772 F.2d at 1193 (citations omitted). Guided by the direction of the Supreme Court and this court’s well-reasoned opinion in Spademan, we review the terms of the contracts at issue in the instant case in order to determine if they, along with the defendant’s other contacts with Texas, were sufficient to confer jurisdiction over Adams Inc.

In examining the terms of the contracts in the instant case, Adams Inc. contends that we should look only to the Master Security Agreement (“MSA”) which was executed between USF & G and Adams Inc. on April 10, 1990. In the MSA, Adams Inc. agreed to:

exonerate, indemnify, and keep indemnified SURETY [USF & G] from and against any and all liabilities, losses and expenses of whatsoever kind or nature ... incurred by SURETY by reason of: (1) Surety having executed, provided or procured BOND(S) in behalf of PRINCIPAL [Adams Inc.], or (2) UNDERSIGNED’S failure to perform or comply with any provisions of this AGREEMENT.

Examining this document alone, we would agree with Adams Inc. that it is insufficient to confer jurisdiction over them. However, when examining personal jurisdiction we do not subscribe to such a myopic approach. Instead, our approach is “highly realistic”, cognizant of the commercial realities of the transactions that form the basis of the nonresident defendant’s contacts with the forum state. Therefore, we look not only to the MSA but also to the bond agreement between Adams Inc. and USF & G, which states:

[a]ll persons who have performed labor, rendered services or furnished materials ... shall have a direct right of action against the Principal [Adams Inc.] and Surety [USF & G] on this bond, which right of action shall be asserted in proceedings instituted in the State in which such labor was performed, services rendered, or materials furnished.

In Spademan the plaintiffs argued that a choice-of-law provision contained in the contract between the parties was sufficient to establish the necessary contacts with the forum state. The provision “specified that the agreement would be construed and enforced in accordance with the law of the state in which the ‘aggrieved party’ is residing at the time of the breach or grievance.” Spademan, 772 F.2d at 1194. The court found that the provision was insufficient, either standing alone or when considered with the other contacts, so as to justify the exercise of jurisdiction over the defendant. Spademan, 772 F.2d at 1196. In its analysis of the choice-of-law provision the court stated:

At the outset, we note that the plaintiffs misapprehend the very nature of this contractual provision. The provision contemplates a choice of law not forum. Hence, despite plaintiffs’ protestations to the contrary, the provision of itself does not evince [plaintiffs’] anticipation of being haled into a Texas court.

Spademan, 772 F.2d at 1195 (emphasis added). Although the contractual provision contained in the labor and materialman’s bond executed between USF & G and Adams Inc. is neither a choice-of-law provision nor an express choice-of-forum provision, it resembles the latter.

We recognize that under the labor and materialman’s bond Adams Inc. did not agree to have any disputes arising between itself and USF & G settled in a specific forum. However, it agreed that any cause of action brought to recover on the labor and material-man’s bond was subject to being tried in any “State in which such labor was performed, services rendered, or materials furnished.” This acknowledgment by Adams Inc. weighs heavily against its contention that the Texas court’s decision to exercise jurisdiction over it would somehow be unreasonable. See Kevlin Servs. Inc. v. Lexington State Bank, 46 F.3d 13, 15 (5th Cir.1995) (district court erred in refusing to enforce forum selection clause and subsequently dismissing suit for lack of personal jurisdiction because a forum selection clause in a written contract is prima facie valid and enforceable unless the opposing party can show that the enforcement of the provision would be unreasonable).

We are aware of the fact that, unlike the choice-of-law provision at issue in Spademan involving an agreement between a non-resident and a resident, the agreements between USF & G and Adams Inc. involve only nonresidents. While this fact, standing alone, would appear to move the bond agreement outside of our jurisdictional analysis, it is relevant to the analysis in that it indicates what future consequences Adams Inc. should have contemplated when it contracted with Gundle.

But for USF & G’s decision to act as surety for Adams Inc., USF & G never would have found itself being sued by a Texas corporation in a Texas court. Under the MSA, Adams Inc., prior to entering into the subcontract with Gundle, agreed to indemnify USF & G for any payments made under the bonds it issued. On April 23, 1990, Adams Inc. and USF & G executed the labor and materialman’s bond in which Adams Inc. acknowledged that, as contractor, it could be subject to suit in any state in which labor was performed or materials were furnished. Then, on May 24, 1990, Adams Inc. entered into a subcontract with Gundle, a Texas corporation which Adams Inc. knew would be performing services and rendering labor in Texas.

The sequence of contractual commitments made by Adams Inc., concluding with the subcontract with Gundle, should have made Adams Inc. aware that it was subject to being haled into a Texas court. See World-Wide Volkswagen Corp., 444 U.S. at 296, 100 S.Ct. at 567. Consequently, we find that Adams Inc.’s express acknowledgment that it was subject to suit in any state where labor was performed or materials furnished and its subsequent decision to contract with Gundle, along with the other aforementioned contacts, are sufficient to satisfy the “minimum contacts” prong of the personal jurisdiction analysis.

2. “Fair play and substantial justice”

Once there has been a determination that the defendant purposefully directed its activities at the forum state, the defendant “must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.” Burger King Corp., 471 U.S. at 477, 105 S.Ct. at 2185. When determining the fundamental fairness issue this court will normally examine (1) the defendant’s burden; (2) the forum state’s interests; (3) the plaintiff’s interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. Asahi, 480 U.S. at 113, 107 S.Ct. at 1033; World-Wide Volkswagen Corp., 444 U.S. at 292, 100 S.Ct. at 564.

Adams Inc. again urges us to restrict our view when examining whether the exercise of personal jurisdiction over it comports with fair play and substantial justice, asserting that Texas has no interest in this litigation because the Texas company that filed this lawsuit, Gundle, is no longer a party to the action by virtue of its decision to settle with USF & G. If we were to adopt this argument then we would be discouraging parties, such as USF & G, from settling for fear that they might have to pursue third-party defendants in separate actions in order to obtain the indemnification that those third-party defendants had contractually bound themselves to provide. This approach is contrary to a convenient and effective resolution of the dispute for the plaintiff; it is contrary to the judicial systems’ interest of efficiently resolving controversies; and it is contrary to the forum state’s interest in providing for an effective means of redress for its citizens.

We recognize that there is some burden placed on Adams Inc., a Pennsylvania corporation, as a result of the case being tried in Texas. However those burdens do not present the type of compelling reasons necessary to justify a finding that the exercise of jurisdiction over Adams Inc. is contrary to notions of fair play and substantial justice.

B. Jurisdiction as to Mumma and Kim-bob Inc.

It is undisputed that Mumma and Kimbob Inc. had no contacts with Texas. However, USF & G offered three arguments as to why the exercise of jurisdiction over them would be proper. First, USF & G argues that by signing the MSA, Mumma and Kimbob Inc. somehow entered into a contract that was performable in Texas. While Mumma’s and Kimbob Inc.’s signatures on the MSA might obligate them to indemnify USF & G, the MSA, standing alone, is insufficient to establish the requisite contacts with the forum state.

Second, USF & G contends that by signing the MSA, Mumma and Kimbob Inc. put themselves at financial risk so that Adams Inc. could procure the project contract and do business with Gundle in Texas, and that this fact is somehow sufficient to support the exercise of jurisdiction over these two defendants. In support of this argument they cite this court to National Can Corp. v. K. Beverage Co., 674 F.2d 1134 (6th Cir.1982), a case that is readily distinguishable.

In National Can the court examined the contacts of nonresident individual guarantors in order to determine if those contacts supported the forum state’s exercise of jurisdiction over the nonresidents. At issue, inter alia, were the contacts of two individual guarantors who had never set foot in the forum state. The court ultimately found that the defendants had sufficient contacts to support the exercise of jurisdiction and cited three factors in support of its decision.

First, the court found that the defendants knew that the business they were guaranteeing was to be located in Kentucky, the forum state, which made it reasonable for the defendants to anticipate being haled into court in Kentucky. Id. at 1138. Second, the guaranty agreements formed the basis of the action. Id. Third, the court found that the dispute had a substantial enough connection with Kentucky to compel the defendants to defend the suit there. Id.

The first two criteria that supported the exercise of jurisdiction over the nonresident defendants in National Can weigh against exercising jurisdiction over Mumma and Kimbob Inc. First, the guarantee agreement in the instant case, the MSA, contained no statement concerning where the obligations that the defendants were guaranteeing were to be performed. In fact, the bonds that Mumma and Kimbob Inc. were purport ing to guarantee had not yet been issued. Second, the guarantee agreement was not the basis of the initial lawsuit initiated by Gundle. While the dispute may have a connection with Texas, that fact alone is insufficient to justify the exercise of jurisdiction over Mumma and'Kimbob Inc.

USF & G’s final argument in support of the exercise of jurisdiction over Mum-ma and Kimbob Inc. is that we should regard them as alter egos of Adams Inc. They contend that, as alter egos, the contacts of Adams Inc. are attributable to both Mumma and Kimbob Inc., thereby justifying the exercise of jurisdiction. Although USF & G cites no binding authority for this argument, we agree that under Texas law, a finding by the district court that Mumma and Kimbob Inc. were alter egos of Adams Inc. would have permitted the lower court to disregard the corporate fiction and pierce the corporate veil, thereby attributing Adams Inc.’s contacts to its codefendants. See S. Villar, Etc., et al. v. Crowley Maritime Corp., 990 F.2d 1489, 1496 (5th Cir.1993). The only evidence offered to the trial court by USF & G in support of its alter ego theory was to provide financial evidence relating to Kimbob Inc. and Adams Inc. Consequently, our review is limited to examining this evidence in order to determine if it is sufficient to support a finding of alter ego status.

This circuit has developed the following laundry list of factors to be used when determining whether a subsidiary is the alter ego of the parent:

(1) the parent and the subsidiary have common stock ownership;
(2) the parent and the subsidiary have common directors or officers;
(3) the parent and the subsidiary have common business departments;
(4) the parent and the subsidiary file consolidated financial statements and tax returns;
(5) the parent finances the subsidiary;
(6) the parent caused the incorporation of the subsidiary;
(7) the subsidiary operates with grossly inadequate capital;
(8) the parent pays the salaries and other expenses of the subsidiary;
(9) the subsidiary receives no business except that given to it by the parent;
(10)the parent uses the subsidiaries property as its own;
(11) the daily operations of the two corporations are not kept separate; and
(12) the subsidiary does not observe the basic corporate formalities, such as keeping separate books and records and holding shareholder and board meetings.

United States v. Jon-T Chemicals, Inc., 768 F.2d 686, 691-92 (5th Cir.1985) (internal citations omitted), cert. denied, 475 U.S. 1014, 106 S.Ct. 1194, 89 L.Ed.2d 309 (1986). Resolution of alter ego issues must be based on a consideration of “the totality of the circumstances.” Id. at 694.

Concerning its argument that Kimbob Inc. is the alter ego of Adams Inc., USF & G presented no evidence or argument on the following factors listed above: (1) common stock ownership, (2) common officers and directors (with the exception of Mumma), (3) common business departments, (4) the filing of joint tax returns, (5) who caused the incorporation of Kimbob Inc. or Adams Inc., (6) how the corporations receive their business, (7) whether the corporations share property, and (8) the daily operations of the two corporations. In fact, the evidence that USF & G did submit on this issue indicates that the corporations neither operate with grossly inadequate capital nor do they pay one another’s salaries and expenses. In short, USF & G failed to present sufficient evidence to demonstrates that Kimbob Inc. is an alter ego of Adams Inc.

In addition to examining the Jon-T factors for purposes of determining whether an individual is an alter ego of a corporation, courts will examine the total dealings of the corporation and the individual, the amount of financial interest the individual has in the corporation, the ownership and the control that the individual maintains over the corporation, and whether the corporation has been used for personal purposes. Permian Petroleum Co. v. Petroleos Mexicanos, a/k/a Pemex, 934 F.2d 635, 642 (5th Cir.1991) (citing Castleberry v. Branscum, 721 S.W.2d 270, 272 (Tex.1986)).

In support of its alter ego theory between Mumma and Adams Inc., USF & G offered evidence of Mumma’s signature on the MSA and on checks from Adams Inc. to Gundle. USF & G also asserts that Mum-ma’s personal assets guarantee the bank debt of Adams Inc. However, it offered no evidence to support this assertion. Therefore, the only evidence to support its alter ego theory is Mumma’s signature on the MSA and on Adams Inc.’s checks to Gundle. This evidence is wholly insufficient to support an alter ego theory. USF & G had the burden of establishing that the court had personal jurisdiction over Mumma and Kimbob. They failed to meet that burden.

II. Venue

Adams Inc. argues that even if we find that it was subject to the court’s jurisdiction, then the district court abused its discretion in denying its motion to transfer venue. Although we would agree that a district court’s decision denying a motion to transfer venue is typically reviewed under the abuse of discretion standard, we are not dealing with a typical motion to transfer venue. The motion to transfer venue in the instant case is atypical because it was filed by a third-party defendant. “[S]tatutory venue limitations have no application to Rule 14 claims even if they would require the third-party action to be heard in another district had it been brought as an independent action.” Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, 6 Fed.Prac. & Proc.Civ.2d § 1445 (1990); see also Southern Milling Co. v. U.S., 270 F.2d 80 (5th Cir.1959) (dictum) (“In the absence of a showing of substantial inconvenience to a third-party defendant, leave to file a third-party complaint should not be denied on the ground of venue.”)- “[T]he third-party defendant is protected against an inconvenient forum ... by the requirement that the court have personal jurisdiction over him and the court’s ability to take account of venue considerations when exercising its discretion to decide whether to disallow impleader or to sever the third-party claim.” Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, 6 Fed.Prac. & Proc.Civ.2d § 1445. Consequently, we find that the district court did not err when it denied Adams Inc.’s motion to transfer.

III. Summary Judgment

Having determined that the court properly exercised jurisdiction over Adams Inc. and that venue was proper, we turn to Adams Inc.’s challenge to the district court’s decision to grant summary judgment to USF & G on its third-party claim. We conduct a de novo review of a district court’s grant of summary judgment. Fireman’s Fund Ins. Co. v. Murchison, 937 F.2d 204, 207 (5th Cir.1991). No deference is given to the district court and all reasonable inferences from the evidence must be resolved in favor of the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

USF & G filed the third-party complaint against Adams Inc. alleging that Adams Inc. was contractually obligated to indemnify and exonerate USF & G for the losses it incurred as a result of USF & G’s decision to execute bonds on behalf of Adams Inc. Adams Inc. claimed that it was not obligated to indemnify USF & G because USF & G’s decision to pay Gundle on the bond was not made in good faith. In support of this defense, Adams Inc. relied on the following provision of the MSA:

IV. (A) The liability of [Adams Inc.] shall extend to and include all amounts paid by [USF & G] in good faith under the belief that: (1) [USF & G] was or might be liable therefor; (2) such payments were necessary or advisable to protect any of [USF & G’s] rights or avoid or lessen [USF & G’s] liability or alleged liability; ...
(C) the voucher(s) or other evidence of such payment(s) or an itemized statement of payment(s) sworn to by an officer of [USF & G] shall be prima facie evidence of the fact and extent of the liability of the [Adams Inc.] to [USF & G].

(emphasis added). Adams Inc. contends that because USF & G originally disputed Gundle’s claim for payment under the bond, it cannot now claim that the payments it made to Gundle under that bond were made in good faith. Therefore, Adams Inc. argues that a genuine issue of material fact exists as to whether USF & G’s decision to pay the bond was made in good faith, thereby precluding summary judgment.

In accordance with the requirements of the MSA, USF & G presented payment vouchers to the district court evidencing the fact and amount of the indemnitors’ liability. Those vouchers were sworn to as being valid by a surety claim representative of USF & G. USF & G also presented evidence of. the efforts it made to contact Adams Inc. prior to settling with Gundle. This evidence consisted of a letter written to “Robert Mumma, President, Adams County Asphalt.” In that letter USF & G stated:

Gundle has offered and demanded to settle this claim for [$121,060.99] until Monday, March 15, 1993, which does not include attorney’s fees or interest. If you continue to fail to cooperate immediately, USF & G will have no choice but to settle this case on the best terms possible under the circumstances, and then seek indemnity from you.
... We have attempted to contact you every day this week in an effort to get your assistance in resolving this matter. However, you have failed to return any of our phone calls. As you must certainly realize, your cooperation is imperative; the failure to communicate or even return our phone calls leaves USF & G little choice but to settle on the best terms it can, by paying up to the amount claimed by Gundle.

(emphasis in original). The statements contained in this letter were uncontroverted by Adams Inc. and they belie Adams Inc.’s contentions that USF & G failed to act in good faith.

The fact and extent of [a principal’s] liability to [the surety] may be prima facie established by vouchers or affidavits. Bad faith on the part of [the surety] may be urged by [the principal] as a defense, but where a genuine issue of material fact in such respect is not raised by the summary judgment evidence, [the principal’s] reliance on such defense would be ineffective.

Ford v. Aetna Ins. Co., 394 S.W.2d 693, 698 (Tex.Civ.App.—Corpus Christi 1965, writ ref'd n.r.e.); accord Safeco Ins. Co. of America v. Gaubert, 829 S.W.2d 274, 282 (Tex.App.—Dallas 1992, writ denied). Because USF & G offered prima facie evidence of its liability under the bond, and because Adams Inc. failed to present a genuine issue of material fact that would controvert USF & G’s evidence of its good faith efforts to settle the dispute, we find that the district court was correct in granting summary judgment to USF & G.

CONCLUSION

For the foregoing reasons, the district court’s grant of summary judgment against Mumma and Kimbob Inc. is VACATED, and, as to them, the action is DISMISSED for lack of personal jurisdiction. The judgment is AFFIRMED as to Adams Inc.

      . Of course, the nonresident third-party defendants to which we refer would still have to have "minimum contacts’! with the forum state in order to justify the district court’s exercise of jurisdiction.

      . The district court made no findings and issued no opinion on the issue of personal jurisdiction. The trial court’s disposition of this issue is limited to a one sentence denial of the defendants’ motions to dismiss for lack of personal jurisdiction.

      . We are mindful that we are not dealing with a parent-subsidiary relationship in the instant case. However, the factors used for determining whether a subsidiary is an alter ego of its parent provide guidance in determining whether Kim-bob is an alter ego of Adams Inc. This court has also approved of the application of the Jon-T factors to situations where it is asserted that an individual is an alter ego of a corporation. See Century Hotels v. United States, 952 F.2d 107, 110 (5th Cir.1992).

      . In 1989 the Texas legislature amended it Business Corporation Act. The amendments removed “failure to observe corporate formalities” from the list of factors used in proving alter ego theories. See Tex.Bus.Corp. art. 2.21 A(3); see also Western Horizontal Drilling, Inc. v. Jonnet Energy Corp., 11 F.3d 65, 67 (5th Cir.1994) (interpreting the effect of art. 2.21 A(3)). Consequently, we will not consider this factor in our analysis.

      . "A motion to transfer venue is addressed to the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.” Peteet v. Dow Chemical, 868 F.2d 1428, 1436 (5th Cir.1989).


author: PER CURIAM:

text:
    GIRLING HEALTH CARE, INC., Plaintiff-Appellant, v. Donna E. SHALALA, Secretary, Department of Health and Human Services, in her Representative Capacity; United States Department of Health and Human Services, Defendants-Appellees.
    No. 95-50794
    Summary Calendar.
    United States Court of Appeals, Fifth Circuit.
    June 13, 1996.

      William F. Kemp, Austin, TX, George H. David, Newport Beach, CA, for plaintiff-appellant.
    Rodney Alan Johnson, Dallas, TX, Ernest Carlos Garcia, Office of the United States Attorney, Austin, TX, for defendants-appellees.
    Before GARWOOD, WIENER and EMILIO M. GARZA, Circuit Judges.
   PER CURIAM:

In this appeal from the district court’s affirmance of the denial by Defendant-Appellee Donna E. Shalala, Secretary, Department of Health and Human Services (hereafter, Secretary), of reimbursement of Medicare costs claimed by Plaintiff-Appellant Girling Health Care, Inc., Girling challenges the propriety of the district court’s use of the summary judgment mechanism when reviewing a decision of an administrative agency. Girling also asserts the absence of substantial evidence to support the Secretary’s decision. As this appeal involves a “complex and highly technical regulatory program,” we write somewhat more extensively here than we might otherwise have when affirming a district court’s summary judgment disposition of such an agency case. For the reasons hereinafter set forth, we affirm the district court’s summary judgment affirming the Secretary’s decision and dismissing Girling’s action.

I

FACTS AND PROCEEDINGS

A. Background

This case arises under the Medicare Act. Medicare home health care agencies, such as Girling, are reimbursed by the Medicare program through private organizations acting as “fiscal intermediaries” under contract with the Secretary. Under the Medicare Act, the Secretary prescribes methods for determining a provider’s “reasonable cost” of providing services to Medicare beneficiaries.

The fiscal intermediary determines the provider’s reasonable cost based on an annual cost report submitted by the provider. The provider is notified of the intermediary’s determination in a written notice known as a “notice of program reimbursement” (“NPR”).

A provider that is dissatisfied with an intermediary’s determination is entitled to a hearing before the Provider Reimbursement Review Board (“PRRB”) if (1) the amount in controversy is $10,000 or more, and (2) the provider makes a request within 180 days following the date on which the NPR was mailed to the provider. The PRRB’s decision may be reversed, affirmed, or modified by the Secretary. The district court has jurisdiction to review a final reimbursement decision by the PRRB or the Secretary under the Administrative Procedure Act. The Administrator’s reversal of the PRRB’s decision in this case constitutes the final decision of the Secretary.

B. Operable Facts

Girling’s Memphis, Tennessee, sub-unit submitted its cost report for the 1986 fiscal year to Prudential, its fiscal intermediary, on November 6, 1986. On November 5, 1987, Prudential issued its NPR finding that Girling owed the Medicare program $31,591. Girling appealed the decision to the PRRB, contesting Prudential’s failure to include a number of reimbursable costs and charges.

On April 11, 1988, Prudential informed Girling that it had “ordered” a detailed listing of paid claims (a, PS & R ), which would be forwarded to Girling so that it could identify any discrepancies. On July 11, 1988, Prudential wrote to Girling and explained that on April 29, 1988, Prudential had sent the PS & R of paid claims for fiscal years 1986 and 1987 to Girling but that Prudential had never received Girling’s analysis of that report. Prudential requested that Girling submit its reconciliation by July 29, 1988, so that Prudential could analyze the disputed claims prior to terminating its role as intermediary on January 1,1989.

The record contains a letter dated July 28, 1988, indicating Girling’s intent to forward its reconciliation to Prudential; however, the address on the forwarding letter does not include a city or state. Nothing in the record indicates that Girling’s reconciliation was ever received by Prudential. On August 9, 1988, Prudential again wrote to Girling and referred to Girling’s being “in the process of identifying the discrepancies in your records and ours.” Prudential never issued a report concerning Girling’s reconciliation; neither did Prudential furnish its successor, Blue Cross of Iowa, a copy of the PS & R or other supporting information concerning the reimbursement dispute with Girling.

The PRRB held a hearing on November 30,1993. On May 24,1994, the PRRB issued a decision reversing Prudential’s disallowance of the reimbursement costs. The PRRB found that Girling had submitted “sufficient evidence” to show that the PS & R was flawed and that Girling should not be prejudiced by Prudential’s failure to transfer the documentation to Blue Cross of Iowa. The PRRB also determined that Girling had timely submitted reconciliation data to Prudential.

The Administrator of the HCFA reviewed and reversed the decision of the PRRB, finding that Girling had not presented sufficient evidence to show that the cost amounts from the PS & R used by Prudential were inaccurate. The Administrator held that Girling’s “reconstructed” data, which was retrieved with only limited success from Girling’s archived computer billing records, failed to meet the requirements of 42 C.F.R. § 413.20. The Administrator’s decision was the final decision of the Secretaiy.

Girling filed the instant suit in the district court, seeking reversal of the Secretary’s decision. Girling contends that it had submitted adequate data for reimbursement, but that the Secretary had “ignored evidence before the PRRB.” The Secretary and Girling each moved for summary judgment. In its motion, Girling contended that the Secretary had made an arbitrary decision to deny reimbursement, which decision was not supported by substantial evidence, and that the Secretary had conducted an overly broad review of the PRRB’s decision. Concluding that the Secretary’s review of the PRRB’s decision was not limited and that the Secretary’s decision was supported by substantial evidence, the district court granted the Secretary’s motion for summary judgment, and Girling timely appealed.

II

ANALYSIS

A. Summary Judgment Standard

Despite having filed its own motion for summary judgment, Girling argues to us that the summary judgment mechanism used by the district court is inconsistent with the standards for judicial review under the Administrative Procedure Act. Citing Olen-hm,se v. Commodity Credit Corp., Girling argues — for the first time on appeal — that the district court should have reviewed Girling’s summary judgment motion under the Federal Rules of Appellate Procedure and that such review would have required the district court to “examine[ ] the entire administrative record.” Girling insists that the district court’s failure to examine the entire record is the “only logical conclusion” that can be distilled from the district court’s grant of summary judgment in favor of the Secretary.

This argument is frivolous. As more fully explained below, the district court properly focused on whether the Secretary’s decision is supported by substantial evidence in the administrative record. In addition, Olenhouse is factually distinguishable and logically inapplicable. In Olenhouse, the Tenth Circuit addressed an instance in which the district court went beyond the administrative record to decide the administrative case before it, leading the appeals court to hold that summary judgment was an inappropriate mechanism for deciding administrative cases. Here, the district court did not go beyond the administrative record; neither is that the basis for Girling’s contention that the summary judgment standard is inappropriate. On the contrary, Girling contends that the district court did not delve deeply enough into the administrative record, not that the district court reviewed matters not considered by the Secretary which were outside of the record.

We have consistently upheld, without comment, the use of summary judgment as a mechanism for review of agency decisions. Our practice is supported by the commentators.

The summary judgment procedure is particularly appropriate in cases in which the court is asked to review or enforce a decision of a federal administrative agency. The explanation for this lies in the relationship between the summary judgment standard of no genuine issue as to any material fact and the nature of judicial review of administrative decisions____ [T]he administrative agency is the fact finder. Judicial review has the function of determining whether the administrative action is consistent with the law—that and no more.

As Girling presents no compelling argument for changing this practice, we decline the invitation to do so.

B. The Secretary’s Decision

We will not reverse the Secretary’s decision unless it is arbitrary, capricious, an abuse of discretion, not in accordance with law, or unsupported by substantial evidence on the record taken as a whole. Substantial evidence is “ ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ”

Girling argues that the district court’s decision was not based on a “thorough” discussion of the decision by the PRRB and the subsequent reversal of that decision by the Secretary. The expertise of the PRRB and the HCFA Administrator are deemed equivalent, even when the latter reverses the former.

Girling contends that the district court erred by not reviewing the PRRB’s decision that Girling had provided adequate records. Although deemed equal in expertise with the PRRB, the Secretary nevertheless has the option of making the final decision, and hers is the only one that is subject to judicial review.

Congress charged the Secretary with the primary responsibility for interpreting the cost reimbursement provisions of the Medicare Act, so courts accord particular deference to her interpretation of Medicare legislation. Courts are required to “give substantial deference to an agency’s interpretation of its own regulations.” Therefore, “unless an ‘alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation,’ ” we must defer to the Secretary’s interpretation.

The provider bears the burden of maintaining financial records and statistical data sufficient for proper determination of costs payable under the program. The Secretary found that, under the applicable regulations, Girling bore the burden of verifying the data used in computing allowable costs, and that Girling had failed to carry that burden. The Secretary is not permitted to issue payments to a provider unless the provider “has furnished such information as the Secretary may request in order to determine the amounts due____” “The principles of cost reimbursement require that providers maintain sufficient financial records and statistical data for proper determination of costs payable under the program.” These financial records must be “capable of verification by qualified auditors” and “in sufficient detail to accomplish the purposes for which it is intended.” A provider’s own cost accounting system is “only the first step in the ultimate determination of reimbursable costs.” Another step in the ultimate determination of reimbursable costs involves the intermediary’s PS & R.

As part of the reimbursement process, intermediaries are required to report all Medicare charges submitted by a provider along with any reimbursement for those charges in Provider Statistical and Reimbursement Reports (“PS & R reports”), compiled quarterly. Intermediaries must use these reports to check amounts on a provider’s annual cost report. Intermediaries must also send the provider a Provider Summary Report for the PS & R reports used by the intermediary. The provider is then afforded the opportunity to furnish proof that the summary is inaccurate. If the provider fails to show any inaccuracies, the intermediary will then rely on the PS & R report to adjust the charges reported in the provider’s cost report.

Intermediaries, such as Prudential and Blue Cross of Iowa, have been directed by the Secretary to use the information in the PS & R “unless the provider furnishes proof that inaccuracies exist.”

In an attempt to prove the PS & R information inaccurate, Girling proffered a billing transmittal log that could not be reconciled because the period for' reprocessing had expired. Girling also provided claims information that it had reconstructed from a computer billing log. Girling did not contest that the period for reprocessing had expired; rather it explained that it was unable to reconstruct all of the billing information for the pertinent period from the computer tapes. Regarding the accuracy of Girling’s information, a controller for Girling stated that “[w]e were unable to locate a couple of periods during the year[.] [A]s well, some of the data on the tapes was damaged and therefore unretrievable.” As noted by the district court, the sum of the evidence provided to Prudential by Girling in an effort to rebut the PS & R consisted of four pages titled “FY1986 Reconciliations.”

Moreover, an audit coordinator for Blue Cross of Iowa testified before the PRRB that the information provided by Girling was insufficient to enable an intermediary to determine the number of allowable home visits, and that there was no way to reconcile the claims. Failure to provide records susceptible of being audited allows the Secretary to deny reimbursement. Thus Girling’s failure to submit documentation to enable the intermediary to determine Medicare charges accurately is sufficient cause for reliance on the PS & R Reports. The Secretary’s decision to rely on the PS & R Reports, rather than on Girling’s recreated and admittedly incomplete data, is supported by substantial evidence. As the regulations and MIM § 2242 place the burden of maintaining records on the provider, the Secretary’s decision not to reheve Girling of the burden was neither arbitrary nor capricious. For the foregoing reasons, the summary judgment of the district court is, in all respects,

AFFIRMED.

      . See Thomas Jefferson University v. Shalala, - U.S. -, -, 114 S.Ct. 2381, 2387, 129 L.Ed.2d 405 (1994).

      . 42 U.S.C. § 1395 et seq. See Sta-Home Health Agency, Inc. v. Shalala, 34 F.3d 305, 307 & nn. 1-2 (5th Cir.1994) (additional background on the Medicare review process concerning a home health agency).

      . 42 U.S.C. § 1395x(o )(1) (West 1992).

      . In this case, the intermediaries are Blue Cross of Iowa and Prudential; Blue Cross succeeded Prudential on December 31, 1988.

      . See 42 U.S.C. § 1395x(v)(1)(A) (West 1992).

      . In this case, Prudential used a Provider Statistical and Reimbursement report (“PS & R”) to adjust Girling's reimbursement amount. The parties concede that this PS & R is not in the record or otherwise available.

      . 42 U.S.C. § 1395oo(a); 42 C.F.R. §§ 405.1835(a); 405.1841(a) (1995).

      . 42 U.S.C. § 1395oo(f). This review is performed by the Administrator of the Health Care Financing Administration ("HCFA”).

      . 5 U.S.C. § 701 etseq.

      . 42C.F.R. § 405.1875.

      . A report containing all Medicare charges reported by the Provider that is compiled quarterly and produced by the Intermediary as part of the reimbursement process. See Medical Rehabilitation Services, P.C. v. Shalala, 17 F.3d 828, 835 (6th Cir.1994).

      . See 42 C.F.R. § 405.1875.

      . 42 F.3d 1560, 1579 (10th Cir.1994).

      . A determination whether the plain-error standard applies is unnecessary, as the argument advanced is not supported by the cited case law and is otherwise frivolous.

      . See Olenhouse, 42 F.3d at 1579-80.

      . See Sun Towers, Inc. v. Heckler, 725 F.2d 315, 317, 325-26 (5th Cir.1984); Baker v. Bell, 630 F.2d 1046, 1054 (5th Cir.1980).

      . 10A Charles Alan Weight, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2733 (1983) (internal quotations and footnotes omitted; emphasis added).

      . 5 U.S.C. § 706; See Sierra Medical Center v. Sullivan, 902 F.2d 388, 390-91 (5th Cir.1990); Sun Towers, 725 F.2d at 325-26.

      . Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (citation omitted).

      . Sun Towers, 725 F.2d at 326; Homan & Crimen, Inc. v. Harris, 626 F.2d 1201, 1205 (5th Cir.1980), cert. denied, 450 U.S. 975, 101 S.Ct. 1506, 67 L.Ed.2d 809 (1981).

      . See Homan, 626 F.2d at 1205 (“the ultimate decision of the agency is controlling."); 42 U.S.C. § 1395oo(f)(1) (West 1992) ("A decision of the Board shall be final unless the Secretary ... reverses, affirms, or modifies the Board’s decision.”).

      . Batterton v. Francis, 432 U.S. 416, 425, 97 S.Ct. 2399, 2405, 53 L.Ed.2d 448 (1977); Sun Towers, 725 F.2d at 325-26.

      . Thomas Jefferson, - U.S. at -, 114 S.Ct. at 2386 (citations omitted).

      . Thomas Jefferson, - U.S. at -, 114 S.Ct. at 2386 (citations omitted).

      . 42 C.F.R. § 413.20(a).

      . 42 U.S.C. § 1395g(a) (West 1992).

      . 42 C.F.R. § 413.20(a).

      . 42 C.F.R. § 413.24(a), (c).

      . Shalala v. Guernsey Memorial Hosp., - U.S. -, -, 115 S.Ct. 1232, 1236, 131 L.Ed.2d 106 (1995).

        . Medical Rehabilitation Services, 17 F.3d at 835.

      . Medicare Intermediary Manual (“MIM”) § 2242.