Sherrod v. American Airlines, Inc.

United States Court of Appeals,

Fifth Circuit.

No. 97-10011.

Rebecca SHERROD, Plaintiff-Appellant,

v.

AMERICAN AIRLINES, INC., Defendant-Appellee.

Jan. 27, 1998.

Appeal from the United States District Court for the Northern
District of Texas.

Before POLITZ, Chief Judge, and BENAVIDES and PARKER, Circuit
Judges.

ROBERT M. PARKER, Circuit Judge:

In this employment discrimination case which originated in

state court, the plaintiff-appellant, Rebecca Sherrod, filed suit

against the defendant-appellee, American Airlines, Inc., under the

Texas Worker's Compensation Act, Texas Labor Code Ann. § 451.001 et

seq. (Vernon 1996); the Texas Commission on Human Rights Act

("TCHRA"), Texas Labor Code Ann. § 21.001 et seq. (Vernon 1996);

and the Age Discrimination in Employment Act, 29 U.S.C. § 621 et

seq. After removal to the United States District Court for the

Northern District of Texas on the basis of federal question

jurisdiction, the plaintiff added claims under the Americans with

Disabilities Act, 42 U.S.C. § 12101 et seq. The plaintiff appeals

the order of the district court granting summary judgment for the

defendant on all plaintiff's claims. We affirm in part and reverse

in part.

I.

1
 Plaintiff, Rebecca Sherrod, worked as a flight attendant for

Defendant, American Airlines, Inc., from 1968 to 1988. In November

1985, Sherrod received an on-the-job injury to her neck which

required surgery. Sherrod returned to work in 1986, but re-injured

her neck in December 1987 while working as a flight attendant. The

second injury required surgery to correct the cervical fusion

attempted in the first surgery. American Airlines placed Sherrod

on sick leave for a term of five years pursuant to the Collective

Bargaining Agreement ("CBA") entered into by American and the

Association of Professional Flight Attendants. Sherrod, however,

never returned to work.

In December 1990, Sherrod sought reinstatement as a flight

attendant. Dr. Norman McCall, a member of American's medical

department, recommended that Sherrod not return to flight status.

Dr. McCall based his recommendation on an examination conducted by

Dr. Tom Mayer which found that Sherrod could only lift 45 pounds

occasionally, and 25 pounds frequently. Consequently, American

medically disqualified Sherrod from returning to a flight attendant

position. Sherrod's personal physician, Dr. Phillip Williams,

concurred with Dr. Mayer's lifting limitation. Once Sherrod's

personal physician concurred with American's medical staff, the CBA

permitted Sherrod's removal from the list of active flight

attendants.

Sherrod filed a grievance against American for medically

disqualifying her from flight service. In arbitration, the

arbitrator found that American did not violate the CBA. Under the

2
CBA, American could not terminate Sherrod until five years of sick

leave had elapsed without her return to flight duty.

Beginning in 1993, the Personnel Department at American

assisted Sherrod in looking for another position within American.

Sherrod interviewed for one position but was turned down. In March

1994, American offered Sherrod an interview for the same position,

but Sherrod declined the interview and informed April Mott in the

Personnel Department that she had filed an EEOC complaint in an

effort to regain her position as flight attendant. In May 1994,

American terminated Sherrod citing the expiration of her five years

of sick leave and her refusal to interview. The letter of

termination which American sent to Sherrod referred to the March

conversation between Sherrod and Mott. In February 1996, Sherrod

applied for another position with American but learned that she was

ineligible for rehire for any position.

In August 1994, Sherrod filed suit against American in the

District Court of Dallas County claiming violations of the Texas

Worker's Compensation Act § 451.001, the Texas Commission on Human

Rights Act ("TCHRA") and the ADEA. American removed the action to

the U.S. District Court for the Northern District of Texas (Civil

Action No. 3:94-CV-2044-D). The case was assigned to Judge

Fitzwater's court.

Sherrod filed a second lawsuit in October 1994 in the U.S.

District Court for the Northern District of Texas (Civil Action No.

3:94-CV-2250-R), alleging violations of the ADA. Sherrod

incorrectly filed under the second civil action number an Objection

3
to Removal, Motion to Remand, and Brief in Support (together

hereinafter referred to as "Motion to Remand"). On November 1,

1994, Judge Fish, in whose court the second civil action was filed,

ordered the Motion to Remand "unfiled" because it had been filed in

the wrong court. Sherrod did not refile the Motion to Remand under

the correct docket number. On November 28, 1994, Judge Fitzwater

consolidated the two pending cases under Civil Action Number 3:94-

CV-2044-D. In January 1995, Judge Fitzwater denied Sherrod's

Motion to Remand without reference to the fact that the Motion to

Remand had been "unfiled" by the previous court.

In November 1995, Sherrod filed a third lawsuit in federal

court (Civil Action No. 3:95-CV-2769-R) alleging unlawful

retaliation under the ADA and ADEA. 29 U.S.C. § 623(d) (ADEA); 42

U.S.C. § 12203(a)(ADA). These claims were consolidated with the

first lawsuit. In May 1996, the District Court granted American's

motion for summary judgment on Sherrod's ADEA, TCHRA, and Texas

Labor Code § 451.001 claims. In December 1996, the District Court

granted summary judgment for American on Sherrod's remaining

claims.

II.

The plaintiff argues that the district court erred by

overruling her Motion to Remand in violation of federal law

prohibiting the removal of state worker's compensation claims. In

reviewing a district court's denial of a plaintiff's motion to

remand a case from federal court to state court, the Court of

Appeals applies a de novo standard of review. Allen v. R & H Oil

4
& Gas Co., 63 F.3d 1326, 1336 (5th Cir.1995). Before deciding

whether the court's denial of the motion to remand was appropriate,

however, we must first decide whether Sherrod waived her right to

move for remand.

A motion to remand a case on the basis of any defect, other

than lack of subject matter jurisdiction, must be made within

thirty days after notice of removal or the plaintiff loses the

opportunity to move for remand. 28 U.S.C. § 1447(c). Thus, if the

plaintiff objects to removal due to some procedural defect, then a

motion to remand must be made within thirty days. See id. See

also Williams v. AC Spark Plugs Division of General Motors Corp.,

985 F.2d 783, 786 (5th Cir.1993) (discussing waiver of the right to

move for remand under § 1447(c)). Additionally, 28 U.S.C. §

1445(c) precludes the removal of an action to federal court which

arises under the worker's compensation laws of any state. See 28

U.S.C. § 1445(c). Therefore, a waiver of the right to move for a

remand of a state worker's compensation claim depends on whether

the removal of such a claim causes a procedural or jurisdictional

defect. See Williams, 985 F.2d at 786. In Williams, the court

held that the wrongful removal of a state worker's compensation

claim is a procedural defect. Id. Consequently, a plaintiff must

make a motion to remand based on the wrongful removal of a state

worker's compensation claim within thirty days after notice of

removal or the plaintiff waives the opportunity to move for remand.

Id.

American claims that Sherrod waived her objection to removal

5
because the Motion to Remand was filed in the wrong court, ordered

"unfiled" by Judge Fish, and not refiled by Sherrod within thirty

days after notice of removal. Thus, American claims that Sherrod's

Motion to Remand was not properly before the district court after

the two cases were consolidated in Judge Fitzwater's court.

Sherrod did not fail to make the motion to remand within 30 days.

On the contrary, Sherrod made the motion, but made it under the

wrong docket number. When the claims were later consolidated, all

motions filed in the second lawsuit were deemed filed in the

consolidated suit. American filed a response in opposition to the

Motion to Remand in the proper court even though the motion had

been incorrectly filed in Judge Fish's court where the second

lawsuit was pending. Although Sherrod had filed the Motion to

Remand in the wrong court, the district court ruled on the motion

after consolidation as if the motion had been filed in the proper

court.

The district court has power under Federal Rule of Civil

Procedure 60(a) to correct clerical mistakes in judgments, orders,

or other parts of the record at any time on its own initiative.

See Fed.R.Civ.P. 60(a). Although the scope of Rule 60(a) is very

limited, Rule 60(a) may be used to correct "mindless mechanistic

mistakes" which require no additional legal reasoning. In re West

Texas Marketing Corp., 12 F.3d 497, 504 (5th Cir.1994). The

relevant test for the application of Rule 60(a) is "whether the

change affects substantive rights of the parties and is therefore

beyond the scope of Rule 60(a) or is instead a clerical error, a

6
copying or computational mistake, which is correctable under the

Rule." Id.

Although Sherrod filed the Motion to Remand under the

incorrect docket number, the district court corrected the error by

treating the motion as if it were filed under the proper docket

number. American recognized the plaintiff's error and filed a

response in opposition to the motion to remand in the appropriate

court. Thus, treating the motion as if it were filed under the

correct number would not affect any substantive rights of the

parties because both parties had the opportunity to address the

issue of remand. Consequently, Sherrod did not waive her right to

move for remand and such motion was properly before the court.

Because Sherrod did not waive her right to remand, the court

must next determine whether the district court applied the correct

standard when deciding whether to remand Sherrod's § 451.001 claim.

Under 28 U.S.C. § 1441, "except as otherwise expressly provided by

Act of Congress," any civil action filed in state court may be

removed to federal court when the district court would have

original jurisdiction. 28 U.S.C. § 1441(a). Thus, civil actions

filed in state court are generally removable to federal court

unless an Act of Congress expressly prohibits removal. As

previously stated, 28 U.S.C. § 1445(c) prohibits the removal of

actions arising under the worker's compensation laws of a state.1

1
18 U.S.C. § 1445(c), entitled "Nonremovable actions,"
provides:

A civil action in any State court arising under the
workmen's compensation laws of such State may not be

7
Sherrod's claim of retaliatory termination under § 451.001 is a

claim arising under Texas worker's compensation laws. See Jones v.

Roadway Express, Inc., 931 F.2d 1086, 1092 (5th Cir.1991). The

court has previously held that § 1445(c) requires an article 8037c

claim to be remanded when the basis of removal is diversity

jurisdiction.2 See id. American, however, removed Sherrod's §

451.001 claim on the basis of federal question jurisdiction because

Sherrod's § 451.001 claim was coupled with an ADEA claim. In this

appeal, we are presented for the first time with the issue of

whether § 1445(c) prohibits the removal of state worker's

compensation claims when the basis of removal is federal question

jurisdiction.

In deciding this issue, we find persuasive the court's

reasoning in Jones. In Jones, the court declared that it would

broadly interpret § 1445(c) in order to further Congressional

intent toward maintaining state court jurisdiction over worker's

compensation cases filed in state court. See Jones, 931 F.2d at

1092. Although the district court's jurisdiction in Jones was

based on diversity, the court did not distinguish between diversity

and federal question jurisdiction when construing § 1445(c).

American urges us to adopt the interpretation utilized by the

district court in Cedillo v. Valcar Enterprises & Darling Delaware

Co., Inc., 773 F.Supp. 932 (N.D.Tex.1991), which distinguishes

removed to any district court of the United States.
2
Tex.Rev.Civ. Stat. art. 8037c was repealed and recodified
under Tex. Labor Code § 451.001, effective September 1, 1993.

8
between diversity and federal question jurisdiction. In Cedillo,

the district court held that it had subject matter jurisdiction

over the plaintiff's § 451.001 claim through its exercise of

supplemental jurisdiction because the state worker's compensation

claim was pendant to a federal question. Thus, the Cedillo court

drew a distinction between diversity and federal question

jurisdiction by concluding that § 1445(c) did not prohibit removal

of a state worker's compensation claim when joined with a pendant

federal claim.

Sherrod, on the other hand, urges us to adopt Humphrey v.

Sequentia, Inc., 58 F.3d 1238 (8th Cir.1995). In Humphrey, the

Eighth Circuit stated that § 1445(c) prohibits removal of state

worker's compensation claims regardless of whether the district

court's original jurisdiction is based on diversity or federal

question jurisdiction. Humphrey, 58 F.3d at 1245. American argues

that the Eighth Circuit did not rely on any authority when it

established this premise. In support of the Eighth Circuit's

proposition, the statutory language draws no distinction between

diversity and federal question jurisdiction. A plain reading of

the statute lends credence to the proposition that § 1445(c)

prohibits the removal of any state worker's compensation claims.

Consequently, we hold that § 1445(c) prohibits removal of state

worker's compensation claims regardless of whether jurisdiction is

based on diversity or federal question.3

3
In Kay v. Home Indemnity Co., the court noted its reluctance
"to strain to find a way to entertain workmen's compensation
suits." 337 F.2d 898, 901 (5th Cir.1964).

9
 In denying Sherrod's Motion to Remand, the district court

concluded that § 1445(c) does not prevent a district court from

exercising supplemental jurisdiction over state worker's

compensation claims when joined with a federal question. Because

the language of § 1445(c) is clear and the court's decision in

Jones does not distinguish between removal based on diversity and

federal question jurisdiction, the district court erred by failing

to sever and remand the state worker's compensation claims. Thus,

we reverse the district court's order denying Sherrod's Motion to

Remand.4

III.

Sherrod argues that the district court erred by granting

summary judgment for American on plaintiff's ADA claim.5 In

employment discrimination cases, the court reviews summary

judgments de novo, applying the same standard as the district

court. See Waltman v. International Paper Co., 875 F.2d 468, 474

(5th Cir.1989). In order to make a prima facie case of

4
After reversing the order of the district court denying the
plaintiff's motion to remand, the issue of whether the district
court erred by granting American's motion for summary judgment
regarding the causal connection between the worker's compensation
claim and Sherrod's termination becomes moot.
5
The court need not address whether the plaintiff raised a
genuine issue of material fact regarding her claims for
discrimination under the ADEA and TCHRA. Sherrod waived review of
these issues by not briefing them in the Argument of her brief.
See Williams v. Time Warner Operation, Inc., 98 F.3d 179, 183 n. 5
(5th Cir.1996); Harris v. Plastics Mfg. Co., 617 F.2d 438, 440
(5th Cir.1980). See also Fed. R.App. P. 28 (stating the
requirement that the appellant's brief include an argument for each
issue). Thus, we affirm the order of the district court granting
summary judgment for American on the plaintiff's ADEA and TCHRA
claims without reviewing the merits of the claims.

10
discrimination under the ADA, a plaintiff must establish that she

is a qualified individual with a disability and that the negative

employment action occurred because of the disability. See 42

U.S.C. § 12112(a). Therefore, the plaintiff must first establish

that she has a disability. See Bridges v. City of Bossier, 92 F.3d

329, 332 (5th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct.

770, 136 L.Ed.2d 715 (1997). The term "disability" encompasses the

following: (1) a mental or physical impairment that substantially

limits one or more major life activities of an individual, (2) a

record of such an impairment, or (3) being regarded as having such

an impairment. See 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g).

First, Sherrod has failed to produce evidence establishing a

genuine issue as to whether she has a physical impairment that

substantially limits a major life activity. See 42 U.S.C. §

12102(2)(A). Under the regulations promulgated by the Equal

Employment Opportunity Commission, the term "substantially limits"

means:

(i) unable to perform a major life activity that the average
person in the general population can perform; or

(ii) significantly restricted as to the condition, manner or
duration under which an individual can perform a particular
major life activity as compared to the condition, manner, or
duration under which the average person in the general
population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1). Additionally, a "major life activity"

consists of such tasks as "caring for oneself, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning and

working." 29 C.F.R. § 1630.2(i). Whether an impairment

substantially limits a major life activity depends on the following

11
factors: (1) the nature and severity of the impairment, (2) the

duration or expected duration of the impairment, and (3) the

permanent or expected long term impact. See 29 C.F.R. §

1630.2(j)(2). In addition to the factors listed in § 1630.2(j)(2),

a court may also look at the following factors when 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)(ii).

Sherrod attempts to establish that her back injury caused a

substantial limitation in the major life activities of lifting and

working. To determine whether an individual is substantially

limited in a major life activity other than working, the court

looks to whether that person can perform the normal activities of

daily living. See Ray v. Glidden Co., 85 F.3d 227, 229 (5th

Cir.1996)(citing Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726

(5th Cir.1995)). In attempting to prove a substantial limitation

on lifting, Sherrod produced medical evidence that she is

restricted to lifting forty-five pounds occasionally and twenty

12
pounds frequently. Sherrod's evidence, however, tends to prove

only that she is limited from heavy lifting, not the routine duties

of daily living. Although the evidence propounded by Sherrod tends

to confirm a restriction on heavy lifting, such evidence alone is

insufficient for a reasonable jury to find a substantial limitation

on a major life activity. See Ray v. Glidden Co., 85 F.3d 227,

(5th Cir.1996); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726

(5th Cir.1995).

Sherrod attempts to establish a substantial limitation on the

major life activity of working through evidence of her heavy

lifting restriction. In order to establish a substantial

limitation on working, the claimant must demonstrate a significant

restriction in the ability to perform either a class of jobs or a

broad range of jobs in various classes. See Dutcher, 53 F.3d at

727 (citing 29 C.F.R. § 1630.2(j)(3)(i)). Evidence of

disqualification from a single position or narrow range of jobs

will not support a finding that an individual is substantially

limited from the major life activity of working. See Dutcher, 53

F.3d at 727. See also Chandler v. City of Dallas, 2 F.3d 1385,

1392 (5th Cir.1993)("An impairment that affects only a narrow range

of jobs can be regarded either as not reaching a major life

activity or as not substantially limiting one.").

Much of the evidence adduced by Sherrod pertains to the nature

and duration of her injury. Based on medical restrictions on heavy

lifting, the plaintiff broadly asserts that she cannot perform any

job requiring even medium lifting. Sherrod fails to bolster her

13
claims of disqualification from a broad range of jobs by presenting

evidence of the number and types of jobs from which she is

disqualified, or evidence that her training and skills limit her to

jobs requiring heavy lifting. See 29 C.F.R. § 1630.2(j)(3)(ii).

Although a plaintiff need not submit evidence of each factor listed

in 29 C.F.R. § 1630.2(j)(3)(ii), the evidence presented by Sherrod

regarding the nature and severity of her injury fails to establish

her disqualification from a broad range or class of jobs. The

evidence produced by Sherrod only tends to prove disqualification

from one job, that of flight attendant. Thus, Sherrod has failed

to adduce evidence sufficient for a reasonable jury to find a

substantial limitation on the major life activity of working.

Second, Sherrod has also failed to produce evidence that she

has a record of impairment. See 42 U.S.C. § 12102(2)(B). Although

the ADA does not define "record of impairment," the regulations

provide: "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 of the major life

activities." 29 C.F.R. § 1630.2(k) (1996). Therefore, in order to

make out a claim for discrimination based on a record of

impairment, the plaintiff must show that at some point in the past,

she was classified or misclassified as having a mental or physical

impairment that substantially limits a major life activity. See

Burch v. Coca-Cola Co., 119 F.3d 305, 321 (5th Cir.1997). Sherrod

points to her prior back surgery and disability leave of absence as

evidence of a record of impairment. Although Sherrod's evidence

14
tends to prove she has a record of impairment, the evidence fails

to show that the impairment substantially limits a major life

activity. See Ray v. Glidden Co., 85 F.3d 227, 229 (5th Cir.1996).

Consequently, Sherrod has failed to raise a genuine issue regarding

whether she has a record of impairment limiting a major life

activity.

Third, Sherrod has failed to produce evidence that American

regarded her as disabled. See 42 U.S.C. § 12102(2)(C). Under the

regulations promulgated by the EEOC, the "regarded as" language

means:

(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 activities only as a result of
the attitudes of others toward such impairment; or

(3) Has none of the impairments defined in paragraphs
(h)(1) or (2) of [§ 1630.2] but is treated by a covered entity
as having a substantially limiting impairment.6

29 C.F.R. § 1630.2(l ). See Burch v. Coca-Cola Co., 119 F.3d 305,

322 (5th Cir.1997); Bridges v. City of Bossier, 92 F.3d 329, 332

(5th Cir.1996). In Bridges, the court held that in order for an

6
The impairments listed in subsection (h) include:

(1) 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; or

(2) Any mental or psychological disorder, such as mental
retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities.

15
employer to have regarded an impairment as substantially limiting

in the activity of working, the employer must regard an individual

as significantly restricted in the ability to perform a class or

broad range of jobs. Bridges, 92 F.3d at 332. Sherrod attempts to

prove that she was regarded as disabled by American through its

refusal to approve her for flight duty due to the fear of

re-injury. There is undisputed evidence which shows that American

attempted to place Sherrod in other positions for which American

did not deem her disqualified due to her back condition. Such

evidence could only permit a reasonable jury to conclude that

American believed Sherrod to be qualified for other positions.

Thus, we hold that American did not regard Sherrod as disabled.

Because Sherrod did not produce evidence establishing a

genuine issue regarding her status as a qualified individual with

a disability, we affirm the district court's grant of summary

judgment on the ADA claims.

IV.

Finally, Sherrod asserts that the district court erred by

granting summary judgment for American on her claims of unlawful

retaliation under the ADA and ADEA. See 29 U.S.C. § 623(d) (ADEA);

42 U.S.C. § 12203(a)(ADA). In employment discrimination cases, the

court reviews summary judgments de novo, applying the same standard

as the district court. See Waltman v. International Paper Co., 875

F.2d 468, 474 (5th Cir.1989).

As a threshold issue, the plaintiff argues that the district

court erred by applying the burden shifting analysis of McDonnell

16
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973). Sherrod contends that Mt. Healthy City School Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977),

provides the appropriate burden-shifting framework for unlawful

retaliation claims under the ADA and ADEA.7 Mt. Healthy, however,

applies only to retaliation claims founded upon violations of

constitutional rights. See Mt. Healthy City School Dist. Bd. of

Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471

(1977)(free speech); North Mississippi Communications, Inc. v.

Jones, 874 F.2d 1064, 1068 (5th Cir.1989)(free speech). Therefore,

the district court did not err by holding that McDonnell Douglas

provides the appropriate burden-shifting analysis for claims of

unlawful retaliation under the ADA or ADEA. See Grizzle v.

Travelers Health Network, Inc., 14 F.3d 261, 267 (5th Cir.1994)

(applying McDonnell Douglas to an ADEA claim); cf. Long v.

Eastfield College, 88 F.3d 300, 304 (5th Cir.1996) (applying

McDonnell Douglas to Title VII unlawful retaliation cases).

Under McDonnell Douglas, if the plaintiff can establish a

prima facie case of retaliation, the burden shifts to the defendant

to come forward with a legitimate, non-discriminatory reason for

7
Sherrod attempts to recharacterize the factual background of
this case as a "mixed motives" discharge. See, e.g., Carter v.
South Central Bell Tel. Co., 912 F.2d 832, 843 (5th
Cir.1990)(explaining the burden of proof in a mixed motives
discharge). Sherrod never established, nor did American concede
that an illegal motive played a part in Sherrod's discharge. Thus,
the mixed motives analysis does not apply.

17
the adverse employment action.8 See McDonnell Douglas, 411 U.S. at

802, 93 S.Ct. at 1824; Grizzle, 14 F.3d at 267. If the defendant

advances a legitimate reason for the adverse employment action,

then the plaintiff must adduce sufficient evidence that would

permit a reasonable trier of fact to find that the proffered reason

is a pretext for retaliation. See McDonnell Douglas, 411 U.S. at

804, 93 S.Ct. at 1825; Grizzle, 14 F.3d at 267. Therefore, the

ultimate issue is whether the employer unlawfully retaliated

against the employee for exercising protected activity. The

ultimate issue of retaliation requires the employee to prove that

the adverse employment action would not have occurred "but-for" the

protected activity. See Long v. Eastfield College, 88 F.3d 300,

308 (5th Cir.1996). The plaintiff must reveal a conflict in

substantial evidence on the ultimate issue of retaliation in order

to withstand a motion for summary judgment. See Rhodes v.

Guiberson Oil Tools, 75 F.3d 989, 993 (5th Cir.1996)(en banc).

Evidence is substantial if it is of "such quality and weight that

reasonable and fair minded persons in the exercise of impartial

judgment might reach different conclusions." Id. (citing Boeing

Co. v. Shipman, 411 F.2d 365, 375 (5th Cir.1969)(en banc)).

Sherrod has made a prima facie case of retaliation. First,

8
A plaintiff establishes a prima facie case of unlawful
retaliation by proving (1) that she engaged in protected activity,
(2) that an adverse employment action occurred, and (3) that a
causal link existed between the protected activity and the adverse
employment action. Long, 88 F.3d at 305 n. 4. The burden of
establishing the "causal link" in the prima facie case is much less
onerous than the burden of proving "but-for" causation required for
the determination of the ultimate issue of retaliation. Id.

18
Sherrod engaged in protected activity by filing EEOC complaints

against American based on the reasonable belief that American's

actions violated the ADA and ADEA. Second, American took adverse

action against Sherrod by terminating her employment and listing

her as ineligible for rehire. And third, Sherrod established a

causal link between the EEOC complaints and her subsequent

termination.

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. A causal link can be established by evidence

that the ultimate decision maker, with final authority to hire and

fire subordinate employees, merely "rubber stamped" a

recommendation to terminate made by an employee with knowledge of

the complaint. See Long, 88 F.3d at 307. The causal link,

however, can be severed if there is evidence that the ultimate

decision maker did not merely "rubber stamp" the recommendation of

the employee with knowledge of the protected activity, but

conducted an independent investigation into the circumstances

surrounding the employee's termination. See id.

Sherrod has introduced evidence that the ultimate decision

maker, Patrick Walsh, signed the termination letter written by

Scott Dennett in which references were made to Sherrod's

conversation with April Mott regarding the EEOC complaints. There

is no evidence that Walsh conducted an independent investigation

19
into the circumstances surrounding Sherrod's termination. Such an

independent investigation would have severed the causal link

between Dennett's knowledge of the EEOC complaint and Sherrod's

termination. Thus, Sherrod has introduced evidence allowing a

reasonable trier of fact to find a causal link between the EEOC

complaint and the termination.

Because Sherrod made a prima facie case of retaliation, the

burden then shifted to American to give a legitimate,

nondiscriminatory explanation for the action it took against

Sherrod. American satisfied this burden by asserting that the

negative employment action was based on Sherrod's refusal to

interview for positions and that Sherrod's five years of sick leave

had expired.

The burden then shifted back to Sherrod to show that the

adverse employment action would not have occurred "but for" her

EEOC claims. Sherrod failed to meet this burden. Although Sherrod

produced unsubstantiated evidence that American does not have a

policy of terminating employees for declining interviews or listing

former employees as ineligible for rehire, this evidence is not

sufficient to overcome American's legitimate, nondiscriminatory

explanation for the action it took against Sherrod. American

refuted any hint of retaliation by producing evidence that Sherrod

declined to interview for any position other than flight attendant,

for which she had already received five years of disability pay due

to medical inability to perform the duties. Viewing the summary

judgment evidence in the light most favorable to Sherrod, a

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"reasonable and fair minded person" would conclude that the

explanation proffered by American was not a pretext for unlawful

retaliation. Thus, Sherrod has failed to establish that she would

not have been terminated but for the previous EEOC complaints. See

Long, 88 F.3d at 308. Consequently, a genuine issue of fact does

not exist as to whether American unlawfully retaliated against

Sherrod. We affirm the order of the district court granting

summary judgment in favor of the defendant on the plaintiff's

federal retaliation claims.

V.

Based on the foregoing, the district court erred by denying

the plaintiff's motion to remand because 28 U.S.C. § 1445(c)

precludes removal of claims arising under the worker's compensation

laws of any state; the district court did not err by granting

summary judgment for defendant on plaintiff's claims of

discrimination under the ADA, ADEA, and TCHRA; and the plaintiff

failed to raise a genuine issue of material fact regarding unlawful

retaliation under the ADA and ADEA. Consequently, the order of the

district court is AFFIRMED insofar as it grants summary judgment

for the defendant on plaintiff's ADA and ADEA discrimination

claims, REVERSED with further instructions for the district court

to remand to state court the state worker's compensation claims

filed under Texas Labor Code § 451.001, and AFFIRMED insofar as the

order grants summary judgment for the defendant on the plaintiff's

federal retaliation claims.

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