Filed: Jan. 09, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ m 00-30390 Summary Calendar _ DAVID EDWARDS, Plaintiff-Appellant, VERSUS WAL-MART STORES, INC., Defendant-Appellee. _ Appeal from the United States District Court for the Western District of Louisiana (99-CV-11) _ January 8, 2001 Before JOLLY, SMITH, and DENNIS, Circuit David Edwards appeals a summary Judges. judgment in a suit against his employer under the Americans with Disabilities Act (“ADA”). JERRY E. SMITH, Circuit Judge:* Find
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ m 00-30390 Summary Calendar _ DAVID EDWARDS, Plaintiff-Appellant, VERSUS WAL-MART STORES, INC., Defendant-Appellee. _ Appeal from the United States District Court for the Western District of Louisiana (99-CV-11) _ January 8, 2001 Before JOLLY, SMITH, and DENNIS, Circuit David Edwards appeals a summary Judges. judgment in a suit against his employer under the Americans with Disabilities Act (“ADA”). JERRY E. SMITH, Circuit Judge:* Findi..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 00-30390
Summary Calendar
_______________
DAVID EDWARDS,
Plaintiff-Appellant,
VERSUS
WAL-MART STORES, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
(99-CV-11)
_________________________
January 8, 2001
Before JOLLY, SMITH, and DENNIS, Circuit David Edwards appeals a summary
Judges. judgment in a suit against his employer under
the Americans with Disabilities Act (“ADA”).
JERRY E. SMITH, Circuit Judge:* Finding no reversible error, we affirm.
I.
Edwards, who can neither hear nor speak
*
but can communicate through sign language,
Pursuant to 5TH CIR. R. 47.5, the court has
finger spelling, and written notes, worked as a
determined that this opinion should not be
merchandise stocker for Wal-Mart Stores, Inc.
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. (“Wal-Mart”). He has a high school
R. 47.5.4. equivalency diploma from the Louisiana
School for the Deaf and a degree from a junior He further suggested that a co-worker had re-
college. He worked at Wal-Mart for four ceived permission to drink a damaged
years and held a second job at Pizza Hut for beverage without discipline. Edwards did not
three years using these limited communication see the videotape, because company policy
skills. forbade it.
Edwards’s managers at Wal-Mart learned II.
some sign language, and the assistant manager Edwards sued for violation of the ADA for
carried a notepad for communicating with him. failure to provide him with reasonable
Edwards never asked for or required a accommodations for his disability and by
certified interpreter; although he had no discharging him because of his disability. The
difficulty performing assigned tasks, he district court granted summary judgment for
occasionally received reprimands for sleeping Wal-Mart on the basis that Edwards had failed
past his break. to make any showing of discrimination.
Wal-Mart terminated Edwards for stealing III.
a root beer from the stock room. A co-worker Summary judgment is appropriate “if the
reported that Edwards had removed a can of pleadings, depositions, answers to
root beer from the inventory pallet, opened the interrogatories, and admissions on file,
can, and took a drink. The night shift manager together with the affidavits, if any,” when
reviewed a videotape that allegedly confirmed viewed in the light most favorable to the
the story. She then went to the receiving area nonmoving party, “show that there is no
and found the open root beer but no other genuine issue as to any material fact and that
beverage cans. She reported the incident to the moving party is entitled to judgment as a
the assistant manager, who reviewed the vid- matter of law.” FED. R. CIV. P. 56(c). 1 We
eotape and interviewed the worker who ini- review a summary judgment de novo, using the
tially had reported the theft. same standards as did the district court. Allen
v. Rapides Parish Sch. Bd., 204 F.3d 619, 621
The assistant manager met with Edwards, (5th Cir. 2000). We also review de novo the
discussed the incident, and terminated him, in district court’s interpretation of the ADA.
accordance with company policy, for Lara v. Cinemark USA, Inc.,
207 F.3d 783,
unauthorized removal of property. At that 786 (5th Cir.), cert. denied,
121 S. Ct. 341
meeting, Edwards communicated with his (2000).
superiors in his usual fashionSSthrough finger
spelling, sign language, and written notes. A IV.
co-worker who knew some sign language Edwards contends the court erred in
assisted Edwards. deciding that Wal-Mart had no obligation to
Edwards first denied the incident, then tried
to explain that he had purchased his own
drink, a 7-Up. He said he had been ill that
night and had taken medication; if he had tak-
en a root beer, then he had made a mistake. 1
See also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
2
provide an interpreter.2 The ADA requires Edwards contends that when the employer
e mp lo ye r s t o m a k e r e a s o n a b l e knows the employee has a disability, the em-
accommodations for a qualified individual with ployer should initiate an interactive process to
a disability, defined as a person “who, with or develop a reasonable accommodation.
without reasonable accommodation, can Although the employer does have a good faith
perform the essential functions of the obligation to engage in this process, the
employment position . . . .” 42 U.S.C. employer must have adequate notice that the
§ 12111(8). The ADA recognizes “the employee needs additional assistance.5 An em-
provision of qualified readers or interpreters” ployer “should do what it can to help” when an
as a reasonable accommodation. Id. § “employee may need an accommodation but
12111(9)(B). doesn’t know how to ask for it,” Bultemeyer
v. Fort Wayne Cmty. Schs., 100 F.3d 1281,
Edwards, however, did not ask for a 1285 (7th Cir. 1996), but even in that case, the
certified interpreter.3 “In general . . . it is the employee had his doctor send a letter to his
responsibility of the individual with the employer requesting an accommodation.
Id.
disability to inform the employer that an Thus, an employer need not divine the needs
accommodation is needed. . . . If the of the employee absent any affirmative signal
employee fails to request an accommodation, from that employee.6
the employer cannot be held liable for failing
to provide one.” Taylor v. Principal Fin. Neither party suggests that Edwards could
Group, Inc.,
93 F.3d 155, 165 (5th Cir. 1996) not communicate to Wal-Mart that he desired
(quoting 29 C.F.R. § 1630.9, App. (1995)).4
4
(...continued)
accommodation.”); Burch v. Coca-Cola Co., 119
2
Edwards also contends that Wal-Mart’s F.3d 305, 319-20 (5th Cir. 1997) (holding that
refusal to show him the video constituted a failure employee’s claim that employer had denied a rea-
to make a reasonable accommodation. He did not sonable accommodation was not actionable be-
raise this claim before the district court; thus, he cause he had not requested an accommodation
has waived it. See Abbott v. Equity Group, Inc., before termination).
2 F.3d 613, 627 n.50 (5th Cir. 1993); Jernigan v.
5
Collins, 980 F.2d 292, 297 n.1 (5th Cir. 1992). See Taylor v. Phoenixville Sch. Dist.,
184
F.3d 296, 313 (3d Cir. 1999) (noting that “he em-
3
Although Edwards stated that he needed an ployer must know of both the disability and the
interpreter for “emergency situations” such as store employee’s desire for accommodations”)
meetings, a co-worker who knew sign language (emphasis added).
would interpret for him, or the assistant manager
6
would write notes to him about these meetings. Indeed, Loulseged further distinguishes Bulte-
Edwards had this assistance at the termination meyer by noting that the employee in that case had
meeting and admitted that he had not requested a a mental disability. That court noted that the
certified interpreter for that meeting. mental disability may affect the employee’s ability
to understand that he needs an accommodation but
4
See also Loulseged v. Akzo Nobel, Inc., 178 that “[w]hen, as here, an employee’s disability is
F.3d 731, 736 & n.4 (5th Cir. 1999) (“According- purely physical, the employee will generally be in
ly, the burden is on the employee to request an the best position to determine her own needs and
(continued...) capacities.” Loulseged, 178 F.3d at 736 n.5.
3
a certified interpreter. Wal-Mart’s finding that he had made no prima facie case
management recognized the need for that Wal-Mart discharged him because of his
interpretive help and brought in an employee disability. The ADA prohibits employers from
with rudimentary sign language skills who discriminating “against a qualified individual
usually interpreted for Edwards at company with a disability” on the basis of that disability.
meetings. The manager additionally used 42 U.S.C. § 12112(a). We have recognized
written notes, just as he had done in the past, two methods of establishing a prima facie case
to explain to Edwards that he was being of discrimination under the ADA: One uses
terminated. The fact that Edwards used these direct evidence, the other indirect.
written notes to tell the manager his side of the
story indicates that he had the ability to A.
request additional assistance had he needed it.7 To establish a prima facie case via direct
evidence, Edwards “must show: (1) that he has
a disability; (2) that he was qualified for the
Furthermore, Edwards has not established job; and (3) that he was subject to an adverse
that he ever before had requested employment decision because of his disability.”
accommodations. Even though he believed he Ivy v. Jones, 192 F.3d 514, 516 (5th Cir.
had asked for an interpreter for company 1999). The parties do not contest that
meetings on several occasions, he could not Edwards satisfies each of these requirements
remember any details to substantiate that or that he has not introduced any direct
assertion. “A wrongful termination claim evidence to connect that employment decision
under the ADA is not properly analyzed under to intentional discrimination on the basis of his
a reasonable accommodation theory unless an disability; thus, he has not made out a prima
employer is shown to have terminated a facie case under the third prong of the test.
qualified individual with a disability in order to
avoid accommodating that employee’s B.
impairments at the workplace.” Burch, 119 A plaintiff may use the indirect method of
F.3d at 314. Edwards has not even hinted that proof set forth in McDonnell Douglas Corp. v.
Wal-Mart discharged him to avoid providing Green,
411 U.S. 792, 802-05 (1973). Daigle
reasonable accommodations. Therefore, the v. Liberty Life Ins. Co.,
70 F.3d 394, 396 (5th
district court correctly concluded that Wal- Cir. 1995). Edwards must show that he
Mart had no duty under the ADA to provide a (1) suffers from a disability; (2) is qualified for
certified interpreter at the termination meeting. the job; (3) was subject to an adverse em-
ployment action; and (4) was replaced by a
V. non-disabled person or was treated less
Edwards avers that the court erred in favorably than were non-disabled employees.
Id. The parties do not dispute that Edwards
was replaced by a hearing, speaking individual,
7
Edwards notes that the night shift manager so he has made a prima facie case under
asked the assistant manager to bring in an McDonnell Douglas.
interpreter who was fluent in sign language at the
termination meeting. Because Edwards must Having done so, Edwards is entitled to a
affirmatively indicate a need for additional presumption of discrimination that the
assistance, this fact has no relevance.
4
employer must rebut by “articulat[ing] some then admitted he mistook the root beer for his
legitimate, non-discriminatory reason” for the own 7-Up. Although he suggests that Wal-
employment action. McDonnell Douglas, 411 Mart’s refusal to allow him to view the
U.S. at 802. The employer need not prove the videotape evidences a discriminatory intent,
legitimate reason; it need only put forth Wal-Mart policy prohibits any employee from
evidence; the burden of proving intentional viewing such a videotape.
discrimination “remains at all times with the
plaintiff.” St. Mary’s Honor Ctr. v. Hicks, 509 Edwards asks us to believe that the fact that
U.S. 502, 507 (1993) (quoting Texas Dep’t of Wal-Mart lost the videotape between his ter-
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 mination and his lawsuit suggests pretext, but
(1981)). multiple witnesses testified to the contents of
the videotape.8 Edwards portrays the slight
Wal-Mart has produced evidence that it variations in the testimony of these witnesses
terminated Edwards for violating company as additional evidence of pretext, but each wit-
policy, so “the presumption raised by the pri- ness stated that Edwards took a can of soda
ma facie case is rebutted and drops from the from the pallet and drank the contents.
case.” Id. (quoting Burdine, 450 U.S. at 255
& n.10). At this point, Edwards must show Despite the alleged evidence of
that the pro ffered reason is pretextual or un- discrimination, Edwards makes no reference to
worthy of credence. Burdine, 450 U.S.at 253, any negative or offensive comments related to
256. To show pretext, he may use evidence his disability, to a pattern of discrimination
establishing his prima facie case, Reeves v. against the disabled at the store, or indeed to
Sanderson Plumbing Prods.,
530 U.S. 133, any other negative encounter at Wal-Mart
___,
120 S. Ct. 2097, 2106 (2000), but he still related to his disability in the four years he
must prove that Wal-Mart intended to worked there. Moreover, Edwards
discriminate on the basis of his disability. undermines his own argument by testifying
that management learned some sign language
Edwards has established no nexus between to communicate with him. He admitted that
termination and disability. He stated in the assistant manager who terminated him
deposition that he did not know whether the supported the deaf community. Furthermore,
company discriminated against him based on the same manager who terminated him also
his disability, on his race, or both. He further hired him; thus, Wal-Mart may receive the
admits that his manager would not terminate
him absent plain evidence that he had stolen
company property, and he has not produced 8
any evidence to contradict the testimony of the Edwards argues for the first time on appeal
that the loss of the videotape constitutes spoilation
eyewitnesses and those who viewed the
of the evidence. Because he did not raise this point
videotape that he committed a terminable before the district court, he has waived it. See,
offense under a company policy applicable to e.g., Estate of Martineau v. Arco Chem. Co., 203
all employees. F.3d 904, 913 (5th Cir. 2000) (citing Vaughner v.
Pulito, 804 F.2d 873, 877 (5th Cir. 1986) (noting
Indeed, Edwards’s testi mony was that if a party fails to assert a legal reason why
contradictory: He first denied the incident, summary judgment should not be granted, he
waives the right to assert it on appeal)).
5
benefit of an inferenceSSthe “same actor” single shred of evidence to support Edwards’
inferenceSSthat discrimination did not claim that Wal-Mart terminated him because of
motivate the termination. See Brown v. CSC his disabilities. There is simply no evidence of
Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). discriminatory intent or motive on the part of
Wal-Mart in this case.”
Therefore, Edwards has failed to prove in-
tentional discrimination, even when all the AFFIRMED.
facts are construed in his favor. A district
court may properly award summary judgment
when
a party . . . fails to make a showing
sufficient to establish the existence of an
element essential to that party’s case,
and on which that party will bear the
burden of proof at trial. In such a
situation, there can be ‘no genuine issue
as to any material fact,’ since a complete
failure of proof concerning an essential
element of the nonmoving party’s case
necessarily renders all other facts
immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986).
Edwards has not presented any issue of fact
material to the question of intentional
discrimination. He disputes only Wal-Mart’s
evidence that he stoleSSa fact more relevant to
whether Wal-Mart terminated him without
sufficient proof than to intentional dis-
crimination. Edwards perhaps had more
difficulty communicating his side of the story
than would a hearing and speaking person, but
he has offered no evidence that Wal-Mart
treated him differently from any other
employee.
In sum, Edwards has not connected the ter-
mination to an intent to discriminate on the ba-
sis of disability. As the district court
perceptively stated, “this court finds not a
6
7
