IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-10366
Summary Calender
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NADINE MALLERY,
Plaintiff-Appellant,
VERSUS
CITY OF DALLAS,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:95-CV-1919-H)
_________________________
June 11, 1998
Before JONES, SMITH, and STEWART, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Nadine Mallery appeals a summary judgment for the City of
Dallas on employment discrimination claims brought under the
Americans with Disabilities Act (“ADA”) and related retaliation
claims. Finding no error, we affirm.
*
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should not be published and is not precedent except under the limited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.
I.
Mallery began work for the Dallas City Auditor's Office in
July 1992 as an Auditor class 11. About two months later, she
sought counseling for chronic depression. One day she missed
several hours of work because of counseling and informed the Audit
Manager, Jon Coffee, of her therapy in order to explain the lost
time.
In March 1993, Mallery was promoted to Auditor class 13.
Shortly thereafter, she was forced to miss a day of work because of
sealant fumes emanating from a newly refinished office door.
Instead of taking vacation or sick time, Coffee recommended filing
a workers' compensation claim, which she did.
In May 1993, Mallery's boss, Daniel Paul, the City Auditor,
notified Mallery that she had not been successful in her six-month
probationary period as Auditor class 13. He cited performance and
deportment problems since advancing to her new post. As a result,
he demoted her to her original position of Auditor class 11.
Simultaneously, however, Paul promoted Mallery to Auditor class 12,
thus beginning a six-month probationary period in that position.1
In July 1993, Paul informed Mallery of several problems with
her performance since her promotion to Auditor class 12, including
1
The City of Dallas Personnel Rules provide that a city employee is
“probationary” for the first six months of employment. During that time, he has
no property interest in his job. If his superiors determine that his
performance is not satisfactory, they may terminate him (if it is his first
position with the city), or demote him to his last non-probationary position.
2
being late to work sixteen times in less than two months; using
office equipment for personal use; and having bad working
relationships with her supervisors. The next day, Mallery filed a
complaint with the EEOC in which she alleged that her demotion was
the result of sex discrimination in violation of title VII.2
In September 1993, the Assistant City Auditor, Rob Darby, sent
a letter to Paul concerning Mallery's use of her sick leave without
a documented medical excuse. Thereafter, Paul terminated Mallery's
probationary status as Auditor class 12 and demoted her to her
original position as Auditor class 11. Paul cited performance and
attendance problems for the demotion. In response, Mallery filed
another EEOC complaint, this time alleging retaliation for her
previous complaint in violation of title VII and alleging
discrimination because of her chronic depression.
Again, Mallery's supervisors requested medical documentation
for her extensive use of sick time, as required by the Dallas City
Personnel Rules. In reaction to the request, Mallery yelled at her
supervisor and refused to provide the documentation. A few days
later, Mallery was suspended with pay pending a review of her
conduct for possible violations of the Dallas City Personnel Rules
for unacceptable conduct in the office.
During that time, Mallery requested a transfer to a “more
2
In the litigation that ensued, the district court granted summary
judgment to the City on Mallery's sex discrimination suit; she does not appeal
that ruling.
3
understanding and nurturing environment” as a “reasonable
accommodation” for her disability of chronic depression. The
City's committee on accommodating persons with disabilities
refused, concluding that her performance and interpersonal problems
would likely follow her to any position within city government.
In April 1994, Mallery was ordered to return to work to face
a hearing on the pending disciplinary charges. She refused to do
so, and after four months of repeated requests and repeated
refusals, Paul fired her, citing her refusal to return to work to
face the disciplinary hearing; her refusal to provide medical
documentation for her extended use of sick time; and her disorderly
conduct when requested to provide medical documentation for her use
of sick leave.
Again, Mallery filed an EEOC complaint alleging retaliation
for her previous EEOC complaints. In May 1995, the EEOC issued
determination letters concluding that there were no violations of
title VII or the ADA, and advised Mallery of her right to sue.
II.
We review a summary judgment de novo. See Hanks v.
Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.
1992). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
4
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). The mov-
ant bears the burden of demonstrating that there is an absence of
evidence to support the respondent’s case. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). The non-movant then must set
forth specific facts showing there is a genuine issue for trial.
See Hanks, 953 F.2d at 997.
We begin by consulting the applicable substantive law to
determine what facts and issues are material. See King v. Chide,
974 F.2d 653, 655-56 (5th Cir. 1992). If there are fact issues, we
review the evidence relating to them, viewing the facts and
inferences in the light most favorable to the non-movant. See id.
If the non-movant sets forth specific facts in support of
allegations essential to his claim, a genuine issue is presented.
See Celotex, 477 U.S. at 323; Brothers v. Klevenhagen, 28 F.3d 452,
455 (5th Cir. 1994).
III.
A.
Mallery's “chronic depression” does not constitute a
disability under the ADA. In order to understand a plaintiff’s
evidentiary burden better, we first review the ADA’s mandate: “No
covered entity shall discriminate against a qualified individual
with a disability because of the disability of such individual in
5
regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and
other terms, conditions, and privileges of employment.” 42 U.S.C.
§ 12112(a). Therefore, a plaintiff is obliged to make an initial
showing that he has a “disability” in order to invoke the ADA’s
protections.3
The ADA defines a “disability” as follows:
The term “disability” means, with respect to an
individualSS
(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).
“Major 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)
3
A plaintiff can prove discrimination directly or indirectly. Directly,
he must show that he is disabled under the act; that with or without reasonable
accommodation he could perform the job; and that the employer discharged him
because of his disability. See 42 U.S.C. § 12112(a); Taylor v. Principal Fin.
Group, Inc., 93 F.3d 155, 162 (5th Cir.), cert. denied, 117 S. Ct. 586 (1996).
Alternately, he can use a burden-shifting analysis to make out a prima
facie case of discrimination. See, e.g., McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973). To do so, he must show that he is disabled under the
act; that he is qualified with or without accommodation; that he was subject to
an adverse employment action; and finally, that he was replaced with a non-
disabled person. See id; Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th
Cir. 1995). Both methods, however, require that the plaintiff make an initial
showing that he is “disabled,” as statutorily defined.
6
(1997). This list is illustrative, rather than exclusive. See id.
§ 1630 app.
Federal regulations interpret “substantially limit” as
follows:
(1) 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.
(2) The following factors should be considered in
determining whether an individual is substantially
limited in a major life activity:
(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). What “substantially limits one or more
major life activities” ultimately means is determined on a case-by-
case basis. See Byrne v. Board of Educ., 979 F.2d 560, 565 (7th
Cir. 1992); Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986).
B.
7
Mallery alleges that she is disabled under §§ 12102(2)(A)
and (C): that her depression substantially limits her major life
activities of sleep, thinking, and concentration; and that the city
regarded her as having a mental impairmentSSchronic depressionSSthat
substantially limits one or more of her major life activities.
1.
Even if sleeping, thinking, and concentrating are properly
“major life activities,” Mallery has provided no more than general
assertions that her chronic depression “substantially limits” these
activities. She has offered nothing to support a jury's finding
that the ailment is severe; of long duration; or has a permanent or
long-term impact. Mallery's evidence is accordingly insufficient
to withstand summary judgment on her claim of disability under
§ 12202(2)(A).
2.
Mallery also claims that she is disabled because her employer
“regards her as” having a disability that substantially limits one
or more of her major life activities.
One is regarded as having a substantially limiting
impairment if the individual (1) has an impairment which
is not substantially limiting but which the employer
perceives as constituting a substantially limiting
impairment; (2) has an impairment which is substantially
limiting only because of the attitudes of others toward
such an impairment; (3) has no impairment at all but is
regarded by the employer as having a substantially
limiting impairment.
8
Burch v. Coca-Cola Co., 119 F.3d 305, 322 (5th Cir. 1997) (internal
quotation and citation omitted), cert. denied, 118 S. Ct. 871
(1998). The key to any “regarded as” claim is some showing that
the employer had a perception that the employee was not up to the
job because of his real or imputed mental or physical impairment.
Mallery presents no evidence to raise a fact issue concerning
whether her employer regarded her as having a disability. She
asserts only that the employer knew about her disability, but can
offer no evidence to support a connection between that knowledge
and adverse employer perceptions. In fact, the record appears to
support the opposite conclusionSSthat her employer regarded her as
a capable auditor, twice granted her promotions, and finally
terminated her because of her insubordination.4
IV.
Next, Mallery asserts that the City took adverse employment
actions against her because she had filed claims with the EEOC.
“To establish a Title VII retaliation claim, [Mallery] must prove:
(1) that she engaged in activity protected by Title VII; (2) that
an adverse employment action occurred; and (3) that a causal
4
Because Mallery has no disability under the ADA, her claims of
discrimination under that act must fail. Accordingly, we need not consider
whether she has made a prima facie case of discrimination; whether the City has
a legitimate non-discriminatory excuse; or whether that excuse is pretextual.
We also do not reach whether the City's refusal to transfer Mallery to a more
“understanding” and “nurturing” work environment constituted a failure to make
reasonable accommodation to the disabled.
9
connection existed between the participation in the protected
activity and the adverse employment action.” Pierce v. Texas Dep't
of Crim. Justice, Inst. Div., 37 F.3d 1146, 1151 (5th Cir. 1994)
(citation omitted). “Once the prima facie case is established, the
burden of producing some non-discriminatory reason falls upon the
defendant. The employee then assumes the burden of showing that
the reasons given were a pretext for retaliation.” Shirley v.
Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992) (ADEA claim)
(citation omitted).
Assuming Mallery has properly made a prima facie case, the
City offers, as its non-discriminatory reason for her demotions and
termination, her unacceptable conduct in the workplace, her
insubordination, and her unsatisfactory performance. Mallery
offers nothing to show that these reasons are a pretext for
retaliation. As such, her claims cannot withstand judgment as a
matter of law.
V.
Finally, Mallery brings a state law retaliation claim, in
which she maintains that the City took adverse employment actions
against her because she had filed a workers' compensation claim.
Under Texas law, an employer “may not discharge or in any other
manner discriminate against an employee because the employee has
. . . filed a workers' compensation claim in good faith.” TEX.
10
LABOR CODE ANN. § 451.001 (West 1996).
An employee claiming discharge in violation of § 451.001
has the burden of at least demonstrating a causal link
between the discharge and the filing of the claim for
workers' compensation benefits. While the employee can
meet this burden without showing that he was fired solely
because of the filing of the workers' compensation claim,
he must show that the filing of the claim was at least a
determining factor in the discharge.
Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 589-90 (5th
Cir. 1995) (per curiam) (citations omitted).
Mallery offers only her subjective belief that there is a
causal connection between her filing of a workers' compensation
claim and her demotions and eventual termination. Under Texas law,
that is not enough to support causation. See Hughes Tool Co. v.
Richards, 624 S.W.2d 598, 599 (Tex. App.SSHouston [14th Dist.]
1981, writ ref'd n.r.e.).5
AFFIRMED.
5
Mallery also offers no evidence that the only employee with the power to
demote or fire her, Paul, ever disapproved of her filing a workers' compensation
claim.
11