McCulley v. JTM Industries Inc

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

____________

No. 96-50701
____________

BRYAN L McCULLEY,

Plaintiff-Appellant,

versus

JTM INDUSTRIES, INC,

Defendant-Appellee.

Appeal from the United States District Court
For the Western District of Texas
(W-95-CV-273)

May 19, 1997

Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Bryan L. McCulley (“McCulley”) appeals the district

court’s grant of summary judgment in favor of Defendant JTM

Industries, Inc. McCulley also appeals the district court’s

striking of various documents he filed in opposition to JTM’s

summary judgment motion. We affirm.

*
Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.
McCulley was an employee at JTM’s Limestone Facility in

Jewett, Texas. JTM hired McCulley in January 1987; he ultimately

became the facility’s full-time laboratory technician responsible

for conducting daily tests to determine the composition of “bottom

ash,” “fly ash,” and “scrubber sludge” at the facility.

McCulley’s mother and stepfather, Linda and Frank Holt, were

also employed at JTM’s Jewett facility. Frank was plant manager of

the facility from 1988 until June 7, 1993; Linda was the facility’s

office manager until March 31, 1993. JTM terminated Linda after it

adopted a nepotism policy that precluded her from remaining in a

position subordinate to her husband at the same facility.

After JTM terminated Linda, she filed a charge of

discrimination with the Equal Employment Opportunity Commission

(“EEOC”) and the Texas Commission on Human Rights (“TCHR”). After

receiving notice of Linda’s EEOC complaint, JTM placed Frank on

administrative leave and subsequently offered him a transfer to

another position in the Atlanta area. Frank initially accepted the

transfer, but later refused it and quit his job.2

After Frank left JTM’s Jewett facility on June 7, 1993,

several incidents of allegedly “disruptive behavior” by McCulley

2
Both Linda and Frank Holt sued JTM alleging, inter alia, violations
of the Age Discrimination in Employment Act of 1967 (“ADEA”). Specifically, the
Holts alleged age discrimination, in violation of 29 U.S.C. § 621, and
retaliation against Frank for Linda’s EEOC complaint, in violation of 29 U.S.C.
§ 623(d). A jury rejected all of the Holts’ claims against JTM, except for
Frank’s claim of retaliation. On appeal, we reversed Frank’s judgment and
dismissed the case with prejudice. Holt v. JTM Indus., Inc., 89 F.3d 1224 (5th
Cir. 1996), petition for cert. filed, 65 U.S.L.W. 3649 (U.S. Mar. 13, 1997) (No.
96-1472).

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prompted JTM to place McCulley on a paid medical leave of absence

lasting from August 23 to September 19, 1993. During this time,

McCulley attended counseling sessions with Dr. Robert Adelman. On

or about September 24, 1993, a few days after McCulley’s return

from leave, JTM placed him on a one-week suspension without pay for

continued “disruptive behavior and negative work attitude.”

McCulley never returned to his position at JTM. In a letter dated

October 4, 1993, McCulley notified JTM that he did not intend to

return to work.

On August 21, 1995, McCulley filed suit against JTM alleging

violation of the Americans with Disabilities Act of 1990 (“ADA”),

42 U.S.C. § 12101, and Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e.3 McCulley opposed JTM’s subsequent motion for

summary judgment on his claims. He attached to his opposition his

affidavit and those of Dr. Adelman and Jana Hart.4 JTM moved to

strike the affidavits.

On July 17, 1996, the district court granted JTM’s motion to

strike and granted summary judgment in JTM’s favor. The district

court denied McCulley’s subsequent motion for a new trial and JTM’s

3
Section 2000e-3 makes it unlawful for an employer to discriminate
against an employee for exercising rights protected by Title VII. Linda Holt
initially advanced claims of both gender and age discrimination to the EEOC.
McCulley, like Frank Holt, contends that he was constructively discharged in
retaliation for Linda’s EEOC claim and subsequent lawsuit. McCulley’s
retaliation claim, as the district court observed, is apparently under the ADEA’s
retaliation provision, 29 U.S.C. § 623(d), rather than under § 2000e-3.
4
Hart is the director of the Creative Education Institute. She
apparently administered the Learning Efficiency Test and the Kaufman Test of
Educational Achievement to McCulley.

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subsequent motion for attorney’s fees. McCulley appeals.

McCulley argues that the district court erred both in striking

his summary judgment evidence and in granting summary judgment in

JTM’s favor. We review a district court’s decision to strike

summary judgment evidence for an abuse of discretion. Richardson

v. Oldham, 12 F.3d 1373, 1378 (5th Cir. 1994). We review a

district court’s grant of summary judgment de novo, using the same

standard as the district court. Duffy v. Leading Edge Prods.,

Inc., 44 F.3d 308, 312 (5th Cir. 1995). Summary judgment is

appropriate when the record reflects that “there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

McCulley challenges the district court’s striking of his

affidavit, Dr. Adelman’s affidavit, and Hart’s affidavit. We

address each affidavit in turn.

The district court struck McCulley’s affidavit after finding

that it “directly contradict[ed] his deposition in that he had a

remarkable recall of past events that he did not possess during the

taking of his deposition.” McCulley contends on appeal that the

affidavit did not contradict his deposition testimony, but rather

supplemented it. He argues that his nervousness at his first

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deposition and his allegedly limited intelligence explain his

inability to recall during his deposition even the most rudimentary

factual predicates of his claim. He also argues that the

statements in his affidavit merely restate information recorded in

his diary and contained in documents previously filed with the

EEOC.

These arguments are unpersuasive. McCulley presented no

evidence that his purported diminished capacity affected his

ability to testify by deposition. In fact, counsel for both

parties made every effort to emphasize the solemnity of the

proceeding. Moreover, even were McCulley as intellectually

challenged or nervous as he now asserts, the district court would

not be required as a result to excuse his failure to correct or

review the otherwise incomplete answers he provided at his

deposition. McCulley verified that he had read his testimony prior

to signing the deposition transcript. In addition, McCulley’s

characterization of his affidavit as “supplementary” is optimistic

when many of his answers purport to reflect knowledge of persons

and events that, at the time of his deposition, he vigorously

maintained he either did not know or did not recall.5 Accordingly,

5
For example, McCulley testified at his deposition that he did not
remember or did not know when he began work at JTM, whether he continued working
after Frank Holt left JTM, whether anyone ever threatened his job because of
Frank’s departure, or whether anyone ever threatened his job because of Linda
Holt’s EEOC claim. He also testified that he did not remember or did not know
who Greg Perkins (McCulley’s supervisor) was, who Lana Guthrie (a JTM employee
who accused McCulley of slamming a file drawer) was, or what significance, if
any, certain JTM employees had to his case.
Outside of the deposition room, however, McCulley’s ability to recall

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we find that the district court did not abuse its discretion in

excluding McCulley’s affidavit pursuant to Federal Rule of Civil

Procedure 37(c).6

The district court struck Dr. Adelman’s affidavit because it

failed to comply with the requirements governing admissibility of

expert testimony found in Federal Rule of Evidence 702. The

district court also rejected McCulley’s contention that Dr.

Adelman’s affidavit was admissible to show “notice” to JTM of

available reasonable accommodations because the district court

found nothing in Dr. Adelman’s affidavit (or any other affidavit)

to suggest that JTM had received it.

McCulley alleged that JTM sent him to see Dr. Adelman during

his medical leave of absence. Dr. Adelman’s report, dated

September 20, 1993, purports to analyze McCulley’s behavior and to

persons and events improved so dramatically that his affidavit simply cannot be
deemed to reflect the kind of elaboration that qualifies as “supplementation” in
the cases upon which McCulley relies. See Dibidale of La., Inc. v. American Bank
& Trust Co., 916 F.2d 300, 307 (5th Cir. 1990); Clark v. Resistoflex Co., 854
F.2d 762, 766 (5th Cir. 1988); Kennett-Murray Corp. v. Bone, 622 F.2d 887 (5th
Cir. 1980). Rather, McCulley’s improved ability to recall persons and events is
substantially different testimony warranting judicial skepticism. S.W.S.
Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 496 (5th Cir. 1996).
6
The district court concluded that “[w]hether viewed as a deliberate
deception or merely a failure to correct incorrect information, Plaintiff’s
affidavit is excludable under Rule 37(c).” Rule 37(c) provides that a party who,
without substantial justification, fails to disclose information required by Rule
26(e)(1), may not use that evidence “at a trial, at a hearing, or on a motion.”
Fed. R. Civ. P. 37(c). Rule 26(e)(1) imposes a duty on a party to supplement
disclosure “if the party learns that in some material respect the information
disclosed is incomplete or incorrect.” Fed. R. Civ. P. 26(e)(1).
Although portions of McCulley’s excluded affidavit relate to matters not
addressed in his deposition testimony, consideration of these portions does not
suffice to create an issue of material fact barring summary judgment for JTM.

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suggest coping mechanisms. An affidavit stating only that the

report was kept in the regular course of Dr. Adelman’s business and

that it was an exact duplicate of the original accompanied Dr.

Adelman’s report.

McCulley plainly submitted the report for its value as an

expert opinion regarding his alleged disability and the

accommodations, if any, that JTM should have provided to him.

Despite this patent purpose, however, McCulley never even attempted

to qualify Dr. Adelman as an expert in the district court.

“[B]efore a district court may consider expert opinion evidence set

forth in an affidavit or other evidentiary document offered in

support of or in opposition to a motion for summary judgment, the

court must find, among other things, that the evidence meets the

requirements of Federal Rule of Evidence 702, namely, that the

person who provided the evidence is ‘qualified as an expert by

knowledge, skill, experience, training, or education.’” Lavespere

v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 176 (5th Cir.

1990) (quoting Fed. R. Evid. 702), cert. denied, 510 U.S. 859, 114

S. Ct. 171, 126 L. Ed. 2d 131 (1993). That McCulley may have met

the requirements of the business records exception to the hearsay

rule in Federal Rule of Evidence 803(6) does not sufficiently

support his arguments. Even if we accept McCulley’s dubious

assertion that he offered Dr. Adelman’s report solely for its value

as “notice” to JTM of available accommodations, we agree with the

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district court that McCulley failed to provide any summary judgment

evidence suggesting that the report was sent to or received by JTM

at any relevant time before McCulley resigned.7 As a result, we

conclude that the district court did not abuse its discretion in

excluding Dr. Adelman’s affidavit and the accompanying report.

The district court also struck Hart’s affidavit and an

accompanying report because Hart was not qualified as an expert as

required by Rule 702. For the same reasons explained above, we

find that the district court did not abuse its discretion in

excluding Hart’s affidavit and report.8

The district court granted summary judgment in favor of JTM on

McCulley’s retaliation claim because McCulley failed to present

sufficient evidence to demonstrate an issue of fact concerning

either the existence of an adverse employment action or a causal

connection between the “protected act” and the alleged adverse

employment action.9 The district court further found that JTM

7
Even if JTM received Dr. Adelman’s report before it received
McCulley’s resignation letter of October 4, 1993, proof of notice of the contents
of the report would not preclude summary judgment for JTM.
8
McCulley does not advance his “notice” theory with respect to Hart’s
affidavit because Hart’s report purports to have been written more than two
months after McCulley sent his resignation letter to JTM.
9
Under both the ADEA and Title VII, a plaintiff establishes a prima
facie case of retaliation by showing: (1) that he engaged in activity protected
by Title VII or the ADEA; (2) that an adverse employment action occurred; and (3)
that there was a causal connection between the participation in the protected
activity and the adverse employment decision. Shirley v. Chrysler First, Inc.,

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articulated non-retaliatory reasons for actions taken in regard to

McCulley’s employment, and that there was no evidence that these

reasons were pretextual.10 Although we believe that the district

court was correct in its assessment of the evidence, or lack

thereof, supporting McCulley’s retaliation claim, we affirm the

grant of summary judgment in favor of JTM on the same ground that

we rejected Frank Holt’s retaliation claim after this appeal was

filed. See Holt, 89 F.3d at 1225-27.

In Holt, the related case addressing whether Frank Holt could

assert a retaliation claim under 29 U.S.C. § 623(d) alleging JTM

terminated him in retaliation for his wife Linda’s ADEA claim, we

explained:

[W]hen an individual, spouse or otherwise, has not
participated “in any manner” in conduct that is protected
by the ADEA, we hold that he does not have automatic
standing to sue for retaliation under § 623(d) simply
because his spouse has engaged in protected activity.
. . .
Th[e] evidence does not establish that Frank participated
in Linda’s protected activities or that he opposed JTM’s
alleged discriminatory practice. There is no evidence
that Frank helped Linda prepare her charge or that he
assisted in any way in its filing. At best, Frank was a
passive observer of Linda’s protected activities. As
such, he does not have standing to sue for retaliation
under § 623(d).

Id. at 1227 (emphasis in original).

970 F.2d 39, 42 (5th Cir. 1992).
10
The district court outlined the summary judgment evidence supporting
JTM’s assertion that McCulley’s “outbursts” were frequent and disruptive. The
evidence was largely uncontroverted. McCulley acknowledged temper control
problems in his deposition and even the (excluded) Adelman report tends to
support the affidavits submitted by JTM.

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McCulley’s retaliation claim fails for the same reason. He

neither alleged nor presented any summary judgment evidence

suggesting that he “participated in any manner in an investigation,

proceeding, or litigation” concerning his mother’s claim. 29

U.S.C. § 623(d). Furthermore, the record contains no evidence

suggesting that he “opposed any practice” of JTM as it related to

his mother’s claim. Id. As we have held that § 623(d) does not

confer “automatic standing” on family members, McCulley’s

retaliation claim cannot survive JTM’s summary judgment motion.

Holt binds this panel.11 Accordingly, we affirm the district

court’s grant of summary judgment in favor of JTM on McCulley’s

retaliation claim.

Under Title I of the ADA, an employer cannot discriminate

against a “qualified individual with a disability because of the

disability of such individual in regard to . . . the hiring,

advancement, or discharge of employees . . . .” 42 U.S.C. §

12112(a). A plaintiff may establish a claim of disability

discrimination by presenting direct evidence of discrimination.

Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 162 (5th Cir.),

11
Rather than point to evidence that he engaged in some protected
activity, McCulley invites us to revisit the issue decided in Holt. This we
decline to do. One panel of this court cannot overrule a prior panel’s decision
in the absence of an intervening contrary or superseding decision by this court
en banc or the Supreme Court. Oncale v. Sundowner Offshore Servs., 83 F.3d 118,
119 (5th Cir.), petition for cert. filed, 65 U.S.L.W. 3432 (U.S. Dec. 16, 1996)
(No. 96-568).

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cert. denied, ___ U.S. ___, 117 S. Ct. 586, 136 L. Ed. 2d 515

(1996). Alternatively, a plaintiff may establish a prima facie

case of discrimination in violation of the ADA by showing that:

(1) he suffers from a disability; (2) he is qualified for the job;

(3) he was subject to an adverse employment action; and (4) he was

replaced by a non-disabled person or was treated less favorably

than non-disabled employees. Id. The ADA defines “disability” as:

(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 impairment; or
(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2). See also Ellison v. Software Spectrum, 85

F.3d 187, 190-92 (5th Cir. 1996) (noting that impairment, standing

alone, does not constitute disability unless it also substantially

limits major life activity).

McCulley claims that his “learning disabilities and diminished

mental capacities” constitute a disability under § 12102(2)(A).

Such conditions, if established, would come within the definition

of “impairment” under applicable EEOC regulations.12 See C.F.R.

§ 1630.2(h) (adopting definition set forth in 34 C.F.R.

§ 104.3(I)(B)). McCulley also contends that he suffers from a

speech impediment, a physical impairment that, if established,

12
The only summary judgment evidence proffered by McCulley supporting
his claim that he suffered from a learning disorder was Hart’s (excluded)
affidavit and report, compiled after McCulley left JTM. Although we agree that
the district court properly excluded this evidence, we assume arguendo the
existence of such an impairment to demonstrate the infirmities of McCulley’s ADA
claim.

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would also come within the regulatory definition. See id.

(adopting definition set forth in 34 C.F.R. § 104.3(I)(A)).

The district court held that McCulley had failed to present

sufficient summary judgment evidence to demonstrate how either

alleged impairment affected one or more of the “major life

activities.” Although, as the district court acknowledged,

McCulley argues that his (excluded) affidavit made such a showing,

we agree with the district court’s assessment. The district court

explained:

Plaintiff indicates that he lives with his parents and
doesn’t have a driver’s license. There is nothing to
indicate that this is a necessary result of his
impairments. Plaintiff additionally indicates that he
cannot qualify for most jobs in Limestone County. There
is, again, no factual basis for this conclusion and
nothing to indicate that Plaintiff has the abilities to
draw that conclusion. Neither the [excluded] report of
Jana Hart nor that of Robert Adelman supports these
conclusions.

Furthermore, McCulley has not presented any evidence that might

demonstrate a connection between either impairment and his asserted

constructive discharge or on-the-job treatment (the alleged adverse

employment actions). Indeed, the only evidence in the record

addressing the link between JTM’s actions and any potential

“impairment” of McCulley are the affidavits submitted by JTM that

suggest that it was McCulley’s deportment that caused JTM to place

McCulley on medical leave, to curtail certain collateral

responsibilities, and eventually to suspend him without pay.

Personality traits such as poor judgment, quick temper or

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irresponsible behavior are not themselves impairments. 29 C.F.R.

§ 1630.2(h) (app.). JTM concedes that McCulley repeatedly engaged

in “disruptive behavior” and “outbursts,” but McCulley has neither

alleged nor offered any evidence suggesting that these incidents,

to the extent that he does not deny that they ever occurred, were

the result of either alleged impairment. Accordingly, we affirm

the district court’s grant of summary judgment in favor of JTM on

McCulley’s ADA discrimination claim.13

III

Based on the foregoing, we find that McCulley’s retaliatory

discharge claim under the ADEA is barred by Holt and that he has

failed to offer any evidence of a genuine issue of fact for trial

on his ADA discrimination claim. We therefore AFFIRM the district

court’s grant of summary judgment in favor of JTM.

13
In light of McCulley’s failure to advance any plausible, supportable
theory of adverse employment actions on the part of JTM, we agree with the
district court that his constructive discharge claim))upon which both his ADEA
and ADA claims relied))is without merit. See Barrow v. New Orleans Steamship
Ass’n, 10 F.3d 292, 297 (5th Cir. 1994).

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