Filed: May 14, 2003
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS May 14, 2003 For the Fifth Circuit Charles R. Fulbruge III Clerk No. 02-50869 Summary Calendar KARL A. WHITE, Plaintiff-Appellant, VERSUS AMERICAN HABILITATION SERVICES, INC., Defendant-Appellee. Appeals from the United States District Court For the Western District of Texas (A-01CA-377-SS) Before JONES, STEWART, and DENNIS, Circuit Judges. DENNIS, Circuit Judge:* In this employment discrimination action, Kevin
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS May 14, 2003 For the Fifth Circuit Charles R. Fulbruge III Clerk No. 02-50869 Summary Calendar KARL A. WHITE, Plaintiff-Appellant, VERSUS AMERICAN HABILITATION SERVICES, INC., Defendant-Appellee. Appeals from the United States District Court For the Western District of Texas (A-01CA-377-SS) Before JONES, STEWART, and DENNIS, Circuit Judges. DENNIS, Circuit Judge:* In this employment discrimination action, Kevin ..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
May 14, 2003
For the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 02-50869
Summary Calendar
KARL A. WHITE,
Plaintiff-Appellant,
VERSUS
AMERICAN HABILITATION SERVICES, INC.,
Defendant-Appellee.
Appeals from the United States District Court
For the Western District of Texas
(A-01CA-377-SS)
Before JONES, STEWART, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:*
In this employment discrimination action, Kevin White pro se
alleges that his former employer, American Habilitation Services,
Inc. (“AHS”), demoted and eventually discharged him in violation of
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Title VII and the Americans with Disabilities Act of 1990 (“ADA”).1
The district court granted summary judgment for AHS. White now
appeals. We AFFIRM.
I.
Because White provides no recitation of facts in his brief, we
accept and adopt the district court’s presentation of the relevant
facts:
AHS provides daily living assistance in group homes for
individuals with mental and physical disabilities. White
began working at AHS on July 21, 2000 as a Residential
Manager. He was hired by Rich Franks, the Residential
Director of AHS’s group homes in Austin. White is an
African-American male and is hearing-impaired such that
he can only hear loud noises. White’s responsibilities
as Residential Manager included supervising direct care
staff, staffing the group homes, and being on call.
During his employment with AHS, he also worked at the
Texas School for the Deaf (“TSD”) as central plant
monitor. AHS has a policy that outside employment must
not compete with an employee’s job performance.
On September 8, 2000, while White was on call, Franks
paged him and asked him to assist with a staff shortage
at one of the group homes. At the time, White was at his
TSD job and refused to leave to cover the shortage, even
though Franks explained to him he needed to choose his
primary employer. On September 13, 2000, White was
suspended pending termination. In lieu of termination,
AHS offered him a direct care position at the Kenyon
House, one of the group homes. White was informed if he
did not appear at the job on September 28, the job offer
would be considered rejected and his employment would be
terminated. He did not appear on that date and was
terminated. AHS filled the Residential Manager position
with an African-American female who had worked for the
company since July 2, 1999.
In addition to these facts, the record shows that White presented
1
42 U.S.C. §§ 12101 et seq.
2
AHS with a list of his conditions for taking the direct care
position. Only one of White’s conditions—his demand that AHS
provide a TTY machine with a flashing light—constitutes a request
for an accommodation of his disability. The record shows that AHS
agreed to this condition.
After his demotion but before his termination, White filed a
complaint with the Texas Commission on Human Rights (“TCHR”). He
alleged AHS had discriminated against him on the bases of
disability, race, and gender. The TCHR issued a right-to-sue
letter on March 19, 2001, and White filed this lawsuit on June 18,
2001. The district court granted AHS’s motion for summary
judgment. This appeal followed.
II.
Because White addressed only his ADA claim in his appellate
brief, we assume that he has abandoned his race- and gender-based
discrimination claims.2 We further assume that White’s ADA claim
consists of two parts, one related to his demotion and the other
related to his subsequent termination. We construe the latter part
to allege retaliatory discharge.
2
See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 n.5
(5th Cir. 1998). (“[We] need not address whether the plaintiff
raised a genuine issue of material fact regarding her claims for
discrimination under the [Age Discrimination in Employment Act] and
[Texas Commission on Human Rights Act]. [The plaintiff] waived
review of these issues by not briefing them in the Argument of her
brief.”).
3
A.
We review the district court’s grant of summary judgment de
novo, applying the same standards followed below.3
B.
As an initial matter, we hold that the district court properly
determined that White had exhausted his administrative remedies
prior to filing his lawsuit. The record shows that he filed a
complaint with the TCHR on September 18, 2000—after his demotion
but before his termination. The TCHR issued a right-to-sue letter
on March 19, 2001, and White filed his lawsuit on June 18, 2001.4
To the extent that White contends he was terminated in retaliation
for demanding a TTY machine as a condition of accepting the direct
care position, his retaliatory discharge claim is a natural
extension of the claims presented in his TCHR complaint, which
alleged (among other things) the denial of reasonable
accommodations including interpreters. Accordingly, both the
demotion claim and the retaliatory discharge claim were properly
before the district court.5
3
EEOC v. R.J. Gallagher Co., 181 F.3d 645, 653-54 (5th Cir.
1999).
4
See 42 U.S.C. § 2000e-5(f)(1) (requiring the complainant to
file a lawsuit within 90 days of his receipt of the right-to-sue
letter). AHS implicitly concedes that White’s lawsuit was timely.
5
See Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980) (“As long
as allegations in the judicial complaint and proof are ‘reasonably
related’ to charged in the administrative filing and ‘no material
differences’ between them exist, the court will entertain them.”).
4
White’s first contention is that he was unlawfully demoted
from his managerial position to a direct care position in violation
of the ADA. The ADA prohibits an employer from discriminating
against a “qualified individual with a disability” on the basis of
his disability.6 A plaintiff alleging disability discrimination in
employment must make out a prima facie showing that (1) he has a
disability, (2) he was qualified for the job, and (3) he was
subject to an adverse employment action because of his disability.7
Based on our review of the record, we conclude that White has
failed to make a prima facie case of discrimination in relation to
his demotion. In particular, White has shown no evidence that he
was qualified for the job or that he was demoted from his
managerial position because of his disability. On the contrary,
the uncontradicted evidence shows that he was demoted because he
was unwilling to perform the on-call duties of his position. Thus,
the record supports only one conclusion: AHS demoted White because
his second job, not his disability, rendered him unable to function
as a manager.
White’s second contention is that AHS terminated him because
he demanded that it supply him with a TTY machine and interpreters.
The ADA prohibits an employer from retaliating against an employee
6
Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999) (citing 42
U.S.C. § 12112(a)).
7
Id.
5
who asserts his rights under the ADA.8 To make out a prima facie
case of retaliation, a plaintiff must show that (1) he was engaged
in protected activity, (2) there was an adverse employment action,
and (3) a causal link existed between the two.9 “In order to
establish the causal link between the protected conduct and the
illegal employment action as required by the prima facie case, the
evidence must show that the employer’s decision to terminate was
based in part on knowledge of the employee’s protected activity.”10
If the plaintiff makes the prima facie showing, the burden shifts
to the employer “to come forward with a legitimate, non-
discriminatory reason for the adverse employment action.”11 If the
employer satisfies this requirement, the burden shifts back to the
employee to “adduce sufficient evidence that would permit a
reasonable trier of fact to find that the proffered reason is a
pretext for retaliation.”12
The evidence shows that White at various points during his
tenure requested interpreters for meetings and that he demanded a
TTY machine as a condition of accepting his demotion to the direct
care position. We assume for the present purpose that White can
8
42 U.S.C. § 12203(a).
9
Sherrod, 132 F.3d at 1122 n.8.
10
Id. at 1122.
11
Id. (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792,
802 (1973)).
12
Id. (citing McDonnell Douglas, 411 U.S. at 804).
6
satisfy the first and second elements of the required prima facie
showing. But we can find no evidence in the record, and White has
identified none beyond his self-serving “gut feelings,”13 supporting
even an inference of a causal link between his accommodation
requests and his termination. The only evidence linking the two is
the uncontroverted fact that AHS acceded to White’s demand that it
install a TTY machine equipped with a flashing light. This
evidence supports only an inference in support of AHS’s position.
Viewed in the light most favorable to White, we conclude that no
evidence shows that AHS’s decision to discharge White was based in
any part on his accommodation requests.
Even if White had made the required prima facie showing,
however, he could not meet his burden of responding to AHS’s reason
for his discharge. AHS explained that White’s employment
terminated when he failed to report to work on September 28, 2000,
after being told that his failure to report would be considered a
resignation. White has failed to adduce any evidence showing that
his failure to report was not the real reason for his discharge.
Indeed, the uncontradicted evidence shows that AHS agreed to
provide White with a new TTY machine, as demanded, and had in other
ways accommodated White’s disability during his short tenure with
13
See Douglass v. United Servs. Auto Ass’n., 79 F.3d 1415, 1430
(5th Cir. 1996) (en banc) (“It is more than well-settled that an
employee’s subjective belief that he suffered an adverse employment
action as a result of discrimination, without more, is not enough
to survive a summary judgment motion.”).
7
the company. Because there is no evidence of disability-related
animus directed at White by AHS, and because there is unimpeached
evidence to the contrary, no reasonable jury could find for White
on the ultimate question of whether the adverse employment action
would have occurred but for the protected activity.14
III.
For the foregoing reasons, we AFFIRM the district court.
AFFIRMED.
14
Sherrod, 132 F.3d at 1122.
8
