UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-41458
Summary Calendar
GLENNA SCHUBERT; ET AL
Plaintiffs
ANGELENA SIMMONS
Plaintiff - Appellant
VERSUS
J C PENNY COMPANY, INCORPORATED; ET AL
Defendants
J C PENNY COMPANY, INCORPORATED
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Texas
(2:95-CV-180)
March 1, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
Per Curiam:1
Angelena Simmons (“Simmons”) sued her former employer, J.C.
Penny, for violating her rights under the Americans With
Disabilities Act (“ADA”). She appeals the district court’s grant
of summary judgment in favor of J.C. Penny. For the following
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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this opinion should not be published and is not precedent except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.
reasons, we affirm.
BACKGROUND
In 1992, J.C. Penny relocated its corporate headquarters to
Legacy Drive in Plano Texas (“Legacy Complex”). Simmons worked as
a print operator for J.C. Penny at the time of the move. Simmons
complained to J.C. Penny’s management that the indoor air and
environment at the Legacy Complex was causing her and other
employees to become ill and unable to work. From 1992 until her
termination in 1994, J.C. Penny repeatedly warned and counseled
Simmons about her excessive absences and tardiness. In June 1994,
Simmons received a final warning for excessive tardiness. In
August 1994, J.C. Penny fired Simmons for arriving late three more
times.
Simmons, along with four other plaintiffs, sued J.C. Penny
and several other defendants in Texas state court. Among other
things, Simmons alleged that J.C. Penny violated the ADA by
discriminating and retaliating against her for complaining about
the poor air quality at the Legacy Complex. J.C. Penny and the
other defendants removed the case to federal court. The district
court remanded the state law claims to state court but retained
jurisdiction over Simmons’ ADA claim. J.C. Penny moved for summary
judgment. The district court granted J.C. Penny’s motion. Simmons
appeals.
DISCUSSION
I. Jurisdiction
We must examine the basis of our jurisdiction on our own
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motion if necessary. See Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). Rule 58 provides in part that “[every judgment shall
be set forth on a separate document. A judgment is effective only
when so set forth.” Fed. R. Civ. P. 58. The requirement of a
separate document may be waived, however. See Simon v. City of
Clute, Tex., 825 F.2d 940, 942 (5th Cir. 1987). The district court
entered an order granting Penny’s motion for summary judgment but
failed to enter a final judgment dismissing Simmons’ complaint.
Because J.C. Penny waived its objections to the lack of a separate
document, we may consider Simmons’ appeal.
II. Summary Judgment on the ADA Claims
We review the grant of summary judgment de novo, using the
same criteria used by the district court. See Easley v. Southern
Shipbuilding Corp., 936 F.2d 839, 841-42 (5th Cir. 1991).
A. ADA Disability Claim
To establish an ADA discrimination claim, a plaintiff must
show that: (1) she has a disability; (2) she was qualified for the
job; and (3) an adverse employment decision was made solely because
of her disability. See Rizzo v. Children’s World Learning Centers,
Inc., 84 F.3d 758, 763 (5th Cir. 1996). “[O]nce established, [a]
prima facie case raises an inference of discrimination. The burden
of production then shifts to the defendant to proffer a legitimate,
nondiscriminatory reason for the challenged employment action.”
Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir. 1996) (en
banc) (citations omitted). “If the [defendant] produces any
evidence which, taken as true, would permit the conclusion that
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there was a nondiscriminatory reason for the adverse action, then
the [defendant] has satisfied its burden of production.” Daigle v.
Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).
If the defendant meets its burden, the presumption of
discrimination disappears. See Rhodes, 75 F.3d at 993. “However,
the plaintiff is accorded the opportunity to demonstrate that the
defendant’s articulated rationale was merely a pretext for
discrimination.” Id. A plaintiff can avoid summary judgment by
(1) creating a fact issue as to whether the defendant’s stated
reason is what actually motivated the defendant and (2) creating a
reasonable inference that the plaintiff’s disability was a
determinative factor in the adverse employment action. See id. at
994.
In the case at bar, the district court assumed that Simmons
established a prima facie ADA discrimination case. The district
court concluded that J.C. Penny’s proffered reason for firing
Simmons--that she repeatedly failed to follow its tardiness policy-
-supported a finding that Simmons was not fired because of her
disability. Because J.C. Penny proffered a nondiscriminatory
reason for firing Simmons, the presumption of discrimination
disappeared and Simmons was given an opportunity to show that the
proffered reason was a pretext for discrimination.
The district court found that Simmons presented some evidence
that J.C. Penny’s proffered reason was a pretext. According to
Simmons, J.C. Penny fired her for complaining about the poor air
quality. Noting that firing someone for complaining about air
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quality does not violate the ADA, the district court concluded that
Simmons’ evidence failed to created a genuine issue of material
fact as to whether J.C. Penny’s reason for firing her was a pretext
for discrimination.
Simmons maintains that the district court erred by granting
summary judgment for J.C. Penny.2 We disagree. Simmons’ evidence
does not create a reasonable inference that her alleged disability
was a determinative factor in J.C. Penny’s decision to fire her.
Simmons presented some evidence that J.C. Penny terminated her
because of her complaints about the air quality at the Legacy
Complex. She has presented no evidence, however, that J.C. Penny
terminated her because of her alleged disability. Accordingly, the
district court properly granted summary judgment for J.C. Penny on
Simmons’ ADA discrimination claim.
B. ADA Retaliation Claim
Simmons’ allegation that J.C. Penny terminated her in
retaliation for complaining about the poor indoor air quality does
not implicate the ADA’s anti-retaliation provision. See 42
U.S.C.A. § 12203(a) (West 1998). The anti-retaliation provision
provides that “[n]o person shall discriminate against any
individual because such individual has opposed any act or practice
made illegal by this chapter or because such individual has made a
charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” Id.
2
Simmons also argues that she offered direct evidence of
discrimination, making summary judgment inappropriate. We find no
direct evidence of discrimination, however.
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There is no evidence that Simmons was terminated for opposing an
ADA violation or participating in an ADA-related investigation or
proceeding. Therefore, Simmons failed to create an issue of
material fact as to her ADA retaliation claim.
CONCLUSION
We affirm the summary judgment in favor of J.C. Penny.
AFFIRMED.
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