IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 98-20757
Summary Calendar
_______________
JO ANN MOODY,
Plaintiff-Appellant,
VERSUS
THE M.W. KELLOGG COMPANY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CV-3848)
_________________________
March 8, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Jo Ann Moody appeals a summary judgment in favor of
M.W. Kellogg Company (“Kellogg” or “the company”) on her claims
under the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12101 et seq., and the Texas Workers' Compensation Act (“TWCA”),
TEX. LABOR CODE § 451.001 et seq. Finding no genuine issue of
material fact, 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should not be published and is not precedent except under the limited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.
Moody worked for Kellogg from 1976 to 1991, receiving several
promotions and ultimately attaining the position of lead document
coordinator (a “Clerk VII” position in Kellogg's employment
scheme), responsible for supervising four employees. Kellogg
requires its employees to maintain weekly time sheets, which must
be verified and approved by supervisors. When the document
supervisor was unavailable, Moody was responsible for approving the
time sheets of her supervisees.
Moody injured her back at work on three separate occasions.
Two of the injuries required surgery, and after each injury, she
sought and received workers' compensation. Following the third
injury, her doctor suggested that she receive a specially designed
chair and a parking spot close to the building. Kellogg supplied
a special chair, but she never got to use it because, as detailed
below, she was fired upon her return to work. Kellogg denied the
request for a closer parking spot, claiming that Moody's doctor had
said only that a closer spot was recommended, not required.
During Moody's third medical leave, Carol Jones, an employee
Moody supervised, confessed to falsifying time sheets at Moody's
request. Kellogg conducted an investigation of Jones's allegation.
The investigation was led by Doris Frisby, who is the supervisor of
the employee to whom Jones confessed, and Teresa Vannoy, manager of
employee relations, who determined that (1) Jones is a credible
person, (2) the altered time sheets corroborated Jones's
allegations that Moody had marked and revised the number of hours
2
worked, and (3) the parking garage records corroborated Jones's
allegations that Moody had left Kellogg's premises during the work
day. In addition, Vanessa Reed, another employee in Moody's work
group, stated that Moody had told Reed to add hours to her time
sheet that Reed had not actually worked.
On the basis of Jones's and Reed's statements and the
corroborating evidence, Frisby made the decision to terminate
Moody's employment. She was fired on September 6, 1994, her first
day back to full-time work after her third back injury. The reason
for her discharge, Kellogg claims, is that she abused her
supervisory positionSSin particular, she directed subordinate
employees to submit inaccurate time sheets in violation of
Kellogg's policies and procedures. Moody claims that this
proffered reason for her termination is a pretext.
II.
Moody sued, asserting that Kellogg had violated her rights
under the ADA by denying her reasonable accommodation (a special
chair and close parking space) and terminating her because of her
disability. She claims the company violated the TWCA by firing her
in retaliation for her filing of workers' compensation claims.
The court granted summary judgment for Kellogg. Moody
appealed, arguing that she had not been allowed to engage in
sufficient discovery to contest summary judgment. We reversed and
remanded for further proceedings. After the parties had engaged in
extensive discovery, the district court granted Kellogg's second
3
motion for summary judgment.
III.
We review a summary judgment de novo, applying the same
standard as did the district court. Melton v. Teachers Ins. &
Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). Summary
judgment is proper when the pleadings and summary judgment evidence
present no genuine issue of material fact and indicate that the
moving party is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Disputed facts preclude granting summary judgment if the evidence
is such that a reasonable jury could return a verdict for the
nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). We may neither weigh the evidence nor make credibility
determinations. Anderson, 477 U.S. at 248.
IV.
The ADA prohibits an employer from “discriminating against a
qualified individual with a disability because of the disability.”
42 U.S.C. § 12112(a). To state a claim under the ADA, Moody must
prove that (1) she suffers from a “disability” as defined by the
ADA; (2) she is a “qualified individual” under the ADA; and
(3) Kellogg took an adverse employment action solely because of her
disability. Rizzo v. Children's World Learning Ctrs., 84 F.3d 758,
763 (5th Cir. 1996); see also Chandler v. City of Dallas, 2 F.3d
1385, 1390 (5th Cir. 1993). Moody bears the burden of proving each
4
of these elements. Id. Because she has produced no evidence to
create a genuine issue of material fact as to the first and third
elements, summary judgment was proper on the ADA claim.
A.
Moody has failed to produce evidence that would permit a
rational juror to conclude that she suffers from a disability as
defined by the ADA. A person has a disability under the ADA if he
(1) suffers “from a physical impairment that substantially limits
one or more of [his] major life activities,” (2) has “a record of
such impairment,” or (3) is “regarded as having such an
impairment.” 42 U.S.C. § 12102(2)(A)-(C).
1.
The evidence Moody has produced to show that she suffers from
a physical impairment that substantially limits a major life
activity is unpersuasive, for, while it shows that she has a bad
back, it does not show that she is substantially limited in any
major life activity. The primary evidence she points to is her
deposition testimony.2 She testified that her back injury caused
2
Moody also references a memo from her doctor (Doctor McKeever) detailing how
the injuries Moody sustained in her last fall would affect her work abilities. The
memo states:
This patient will certainly need to limit any prolonged standing,
stooping, bending or lifting. She should not really lift anything
weighing over about 10 lbs. It would be recommended she obtain a
parking space close to her job site. It would be recommended that when
she does have to sit down to operate her computer keyboard etc[.] that
she have a special straight back chair with adequate lumbar support.
It would be recommended she have breaks to prevent prolonged standing
(continued...)
5
the following restrictions: She does not play as many sports as
she once did; she has difficulty putting on pantyhose or fastening
a dress in the back; she has numbness in her leg and pain in her
lower back if she stands “too long”; she has lower back pain if she
walks “too far” or if she has to climb stairs; she uses her own
judgment to decide what she is capable of lifting; and she has
difficulty getting up and down while singing in her church choir.
These restrictions on her physical abilities are not sufficient to
constitute a substantial limitation of a major life activity.
The ADA does not define “substantially limits” or “major life
activities,” but we have looked to regulations promulgated under
the act by the Equal Employment Opportunity Commission in defining
both terms. The regulations define major life activities as
“functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(i). “Other major life activities
could include lifting, reaching, sitting, or standing.” Dutcher v.
Ingalls Shipbuilding, 53 F.3d 723, 726 n.7 (5th Cir. 1995). Moody
(...continued)
or sitting in one position. Again, she should limit her bending or
lifting of anything over 10 lbs. I understand she has to deliver
documents and drawings etc. Sometimes these weigh quite a bit. A
rolling cart for such deliveries would be recommended. If these
precautions are taken and provided, I feel Mrs. Moody could perform her
job and I know she wants very much to continue to do so.
By its terms, this memo is describing the results of a particular
injurySSMoody's third fall. It does not purport to describe a long-term disability.
The regulations under the ADA distinguish injuries (“temporary, non-chronic
impairments of short duration”) and state that they “are usually not disabilities.”
29 C.F.R. § 1630 app. at § 1630.2(j). Read as a whole, the memo from McKeever
plainly addresses injuries sustained in Moody's third fall and the restrictions she
needed to observe as a result of those particular short-term injuries. When read
in conjunction with McKeever's deposition testimony, discussed in the text below,
the memo cannot establish that Moody was substantially limited in a major life
activity.
6
grasps onto these statements, arguing that because she has trouble
putting on certain clothes (“caring for oneself”) and must avoid
walking too far, standing too long, and lifting objects that are
too heavy, she must be substantially limited in a major life
activity.
The limitations must be more significant than those Moody
claims to experience. In Ray v. Glidden, 85 F.3d 227, 229 (5th
Cir. 1996), we held that an ADA plaintiff was not substantially
limited in a major life activity when he could not life heavy
objects and his doctor had recommended that he be limited to
lifting objects weighing from five to ten pounds. We stated that
“[t]o determine whether a person is substantially limited in a
major life activity other than working, we look to whether that
person can perform the normal activities of daily living.” Id.
(citing Dutcher, 53 F.3d at 726). The plaintiff was not
substantially limited, we held, because he “c[ould] lift and reach
as long as he avoid[ed] heavy lifting.” Id.3
Similarly, Moody can care for herself and can sit, stand,
walk, and lift, as long as she avoids extremes. The summary
judgment evidence therefore does not support a finding that Moody
is substantially limited in a major life activity.4
3
See also Dutcher, 53 F.3d at 726 (holding that ADA plaintiff was not
substantially limited when she could perform tasks of everyday living and “c[ould]
do lifting and reaching as long as she avoid[ed] heavy lifting and repetitive
rotational movements”).
4
This conclusion is bolstered by the deposition testimony of Dr. McKeever,
Moody's expert witness and treating physician, who admitted that Moody could bend
to dress herself and could lift more than ten pounds and could walk a considerable
distance. He even admitted that he had suggested that Moody “increase her
(continued...)
7
2.
Moody also cannot point to a record of disability to establish
that she was “disabled” under the ADA. To have a record of a
substantially limiting impairment, one must “ha[ve] a history of,
or ha[ve] been misclassified as having, a mental or physical
impairment that substantially limits one or more major life
activities.” 29 C.F.R. § 1630.2(k). While Moody has produced
evidence of past injuries, she has produced no evidence of a
history of disability. Evidence of past discrete injuries is
insufficient, for “[t]he impairment indicated in the record must be
an impairment that would substantially limit one or more of the
individual's major life activities.” 29 C.F.R. § 1630 app. at
§ 1630.2(k). As noted above, there is a difference between a
particular, temporary injury (such as a back injury resulting from
a fall) and a substantially limiting impairment. See 29 C.F.R.
§ 1630 app. at § 1630.2(j). The records to which Moody points
constitute a record of mere injuries, not of disability.5
(...continued)
activities, including walking, riding, exercising on a bicycle, and doing partial
sit-ups.” He agreed that she could stand for a period of time longer than 30 to 45
minutes and could stand for three or four days “if she had to.”
In addition, McKeever testified that from 1987 to December 1995, Moody
consistently rated a “seven or eight” on a scale on which 1 represents the most
disabled patient with a back injury and 10 represents the healthiest back patient.
Noting that Moody's condition has stabilized, he stated, “She's been able to go back
to work. She's been able to live her life, you know, and do things in a reasonable
manner.” This testimony confirms that Moody “can perform the normal activities of
daily living,” which precludes a finding that she is substantially limited in a
major life activity. See Ray, 85 F.3d at 229.
5
The evidence Moody points to as constituting a record of disability
includes:
(continued...)
8
Moody's contention that she can establish a record of
impairment because she was hospitalized for back surgery in 1986
and 1987 is also unavailing. Citing School Board v. Arline,
480 U.S. 273, 281 (1987), Moody claims that “[an] employee may
establish that she has a record of an impairment if the impairment
was serious enough to require hospitalization.” But she is reading
Arline too broadly. The Arline Court held that a school teacher
who had recurrent, acute tuberculosis that required hospitalization
had a record of disability under the Rehabilitation Act. Id. The
Court did not establish a per se rule that hospitalization for any
condition constitutes a record of disability.6 Indeed, there are
many injuries that require hospitalization but that would not give
(...continued)
(1) A “First Report of Injury or Illness” form, filed with the
Texas Industrial Accident Board in 1988, which states that Moody
fell at work and felt “discomfort in her back.”
(2) A 1985 letter from her doctor describing her treatment
following her first workplace fall. (The letter also states, “The
extent of her injuries is not considered severe. Prognosis for full
recovery is excellent.”)
(3) Kellogg's employee data sheet stating that Moody was terminated
in 1985 “due to long term illness (disability).”
(4) A letter from Moody's lawyer, James Potts, indicating that she
had been released to work with certain limitations, and inquiring as
to her work status.
(5) A 1986 Kellogg “separation report” form that included the
notation “long term disability” in the space for comments.
None of these documents indicates that Moody ever had an impairment that
substantially limited a major life activity, and the documents thus cannot
establish a “record of disability” as that term is defined by the ADA. See
C.F.R. § 1630.2(k) (“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 major life activities.”).
6
See Evans v. Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (holding that knee
injury, which required surgery, was not a disability); 29 C.F.R. § 1630 app. at
§ 1630.2(j) (noting that appendicitis, which generally requires hospitalization, is
a temporary injury and not a disability).
9
rise to a record of substantial impairment sufficient to convey ADA
protection.
3.
Finally, Moody has not produced evidence that would permit a
finding that Kellogg regarded her as disabled at the time it took
the “adverse employment actions.” One is regarded as having a
disability only if he (1) has an impairment that is not
substantially limiting but that the employer perceives as
substantially limiting; (2) has an impairment that is substantially
limiting only because of the attitudes of others toward the
impairment; or (3) has no impairment at all but is regarded by the
employer as having a substantially limiting impairment. Burch v.
Coca-Cola Co., 119 F.3d 305, 322 (5th Cir. 1997), cert. denied, 118
S. Ct. 871 (1998). Moody does not claim to fall into the second
category, so she must show that Kellogg perceived that she was
impaired in a way that is substantially limiting.
The evidence Moody points to as establishing that Kellogg
perceived her as disabled is insufficient. Her most persuasive
evidence is probative only of Kellogg's perceptions in 1986. She
points to documents from her 1986 termination that appear to
indicate that the reason for her termination was disability.7
7
Kellogg claims that these documents were related to Moody's application in
1986 for long-term disability benefits under the company's disability-benefits plan.
The use of the term “disability,” Kellogg maintains, indicates that Moody, for a
period of time in 1986, may have qualified for benefits under Kellogg's long-term
disability plan.
Kellogg's assertion is persuasive. The handwritten memo referring to
(continued...)
10
These documents do not establish that Kellogg perceived Moody as
disabled in 1994, when it took the adverse employment actions
complained of.8
The remaining evidence to which Moody points cannot sustain a
finding that Kellogg perceived Moody as disabled in 1994. Moody
points to Frisby's notes that include the phrase “consider her
disabled.” This document is simply a piece of paper with three
handwritten phrases: “fabrication on her partSSfalsifying time
sheets,” “consider her disabled,” and “who's in group.” Frisby
jotted down the notes before the conversation in which she fired
Moody, and Frisby maintains that the phrase “consider her disabled”
was a reminder that Moody might take the position that she (Moody)
was disabled. This testimony is corroborated by human resources
employee Teresa Vannoy, who testified that she and Frisby discussed
various theories that might come up in connection with Moody's
termination, including the “disability issue.”9 Frisby also stated
(...continued)
“termination due to long term sickness (disability)” explains, “FYI the insurance
carrier is evaluating Moody's application for disability.” We need not resolve what
the references to disability meant, however, for Kellogg's belief about Moody in
1986 is not relevant to whether it perceived her as disabled in 1994.
8
In addition, it is worth noting that the ADA, enacted in 1986,
transformed the legal meaning of “disability.” The fact that Kellogg in 1986
referred to Moody's injury as a disability does not indicate that it believed,
even then, that she was subject to an impairment that substantially limited a
major life activity.
9
Vannoy stated:
[Frisby and I] had a conversation about some other issues that might
come up [regarding] the recommendation to terminate Jo Ann [Moody]
. . . . And one of them was the disability issue, and we discussed
whether or not Jo Ann fit under the definition of the law. And we
decided that she didn't . . . . [T]he reason why we were talking
about that was . . . because Jo Ann had been out for a few days and
(continued...)
11
in her deposition and affidavit that she neither perceived Moody as
“disabled” nor took her back condition into account in making the
termination decision. Given the totality of the evidence in the
summary judgment record, the solitary statement in Frisby's notes
fails to raise a genuine issue of material fact as to whether
Kellogg perceived Moody as substantially limited in a major life
activity.
Moody points to the deposition testimony of Carol Jones, an
employee who worked under her, as establishing that other employees
thought she had some type of disability, but that evidence is
insufficient for two reasons. First, the workplace comments of co-
workers, who were not decision makers at the company, are nothing
more than stray remarks and cannot establish how Kellogg perceived
Jones. See Stendebach v. C.P.C. Int'l Inc., 691 F.2d 735, 738 (5th
Cir. 1982). In addition, a full reading of Jones's deposition
indicates that Jones was using the term “disability,” a term of
art, to refer to any physical limitation, not simply to an
“impairment that substantially limits a major life activity.”
Admitting that she never talked directly to any of Moody's
supervisors about Moody's disability, Jones testified only that a
supervisor had said “something like” Jo Ann was disabled and would
need help lifting boxes.
At most, the testimony establishes that some employees
(...continued)
was coming back, and we anticipated that she might raise that as an
issue. We knew that it wasn't part of the decision we were making
andSSbut, you know, we wanted to beSSI wanted [Frisby] to be aware
of the risk involved and that Jo Ann could raise the issue . . . .
12
believed Moody had limitations on her ability to do heavy lifting.
Because a limitation on heavy lifting is not a substantial
limitation of a major life activity under the ADA, a perception
that an employee has a heavy lifting limitation cannot amount to a
perception that the employee is disabled. See Sherrod v. American
Airlines, Inc., 132 F.3d 1112, 1119-20 (5th Cir. 1998); Ray,
85 F.3d at 229 (5th Cir. 1996).
Finally, Moody points to evidence indicating that Frisby and
Vannoy were aware that Frisby had experienced injuries and had
filed workers' compensation claims. This evidence can show only
that Kellogg perceived Moody as having been injuredSSnot as having
a disability as defined by the ADA. An injurySSeven one requiring
surgerySSdoes not necessarily constitute a disability.10
B.
Moody's ADA claim fails also because she has produced no
evidence to sustain a finding that Kellogg took an adverse
employment action solely because of her disability. See Rizzo,
84 F.3d at 763 (5th Cir. 1996) (listing elements of ADA claim); see
also Chandler, 2 F.3d at 1390. Moody points to two
discriminatorily-motivated adverse employment actions: Kellogg's
failure to give her a parking space close to the building and the
decision to fire her.11 Neither action, however, constituted
10
See Rogers v. International Marine Terminals, 87 F.3d 755, 759 (5th Cir.
1996); Evans, 861 F.2d at 852-53; 29 C.F.R. § 1630 app. at § 1630.2(j).
11
Moody's brief also refers to the failure to accommodate her “disability”
(continued...)
13
adverse employment action based solely on Moody's “disability.”
1.
Kellogg's failure to provide Moody with a parking space close
to the building was not a failure reasonably to accommodate her
“disability,” because the evidence cannot establish that she
requested a close parking space. She testified at her deposition
that she did not recall talking to anyone at Kellogg about a
request for a parking accommodation and that she never applied for
a decal that would permit her to park in one of the disabled
parking spaces. As the ADA regulations state, “it is the
responsibility of the individual with a disability to inform the
employer that an accommodation is needed.” 29 C.F.R. app.
§ 1630.9. Moody's failure to make a specific request precludes her
from arguing that Kellogg did not accommodate her “disability.”12
2.
The summary judgment evidence also supports a finding that
Kellogg terminated Moody not because of her “disability” but
(...continued)
by providing her with a special chair. When questioned about her accommodation
claims at her deposition, however, Moody admitted that Kellogg did provide her a
special chair in 1986 and again in 1994 but that she did not have an opportunity to
use the chair in 1994 because of her termination.
12
Moody's position is that her doctor's recommendation of a closer parking
spot constituted a request for an accommodation. As the district court found,
however, Moody's doctor merely “recommended” a closer parking space; he did not
indicate that one was required. Kellogg's records indicate that the company
informed Moody that her doctor would need to indicate that a closer space was
required before it would allow her to park in one of the close spaces. There is
no evidence suggesting that she tried to obtain such a “prescription” from her
doctor.
14
because it believed she was directing subordinates to falsify time
sheets.13 Moody's termination stemmed from allegations by Carol
Jones, one of her subordinates, who stated that Moody had directed
her to add hours to her time sheet that she had not worked.
Specifically, Jones stated that she had accompanied Moody on
personal errands during the work week; that, on August 26, 1994,
Jones submitted to Moody a time sheet of hours worked; that Moody
crossed out Jones's actual hours and added three hours of overtime
that Jones had not worked; and that Moody instructed Jones to
complete a new time sheet with the revised numbers.
Jones said this was not the first time Moody had directed her
to add hours to her time sheet. In support of her allegations,
Jones showed Frisby the original August 26 time sheet containing
Moody's markings and revisions.
After Jones came forward with her allegations, Frisby
contacted Vannoy, and they investigated Jones's allegations,
concluding that Jones was a credible person and that parking garage
records corroborated her allegations that Moody had left Kellogg's
13
In a disability discrimination case in which, as here, there is no direct
proof of discrimination, the plaintiff must present prima facie evidence of
discrimination on the basis of disability, after which the employer has the burden
to articulate some legitimate, nondiscriminatory reason for the termination, and the
burden then shifts to the plaintiff to prove by a preponderance of the evidence that
the employer's proffered reason was a pretext for discrimination. See Sherrod, 132
F.3d at 1121 (approving the title VII burden-shifting scheme for ADA claims);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) (establishing burdens
of proof for title VII claims). Kellogg articulated a nondiscriminatory reason for
Moody's termination (i.e., that Moody was directing her subordinates to falsify time
sheets), and Moody thus has the burden of proving that this proffered reason is
pretextual. As we will discuss, she has not sustained that burden.
15
premises when Jones claimed she had.14 In addition, Frisby and
Vannoy heard from Vanessa Reed, another subordinate of Moody's,
that Moody “as a supervisor” told Reed to add hours to her time
sheets that Reed had not worked.15
Moody claims that the manner in which the investigation was
conducted indicates that Kellogg's stated reason was pretextual.
She claims the investigation was tainted because Kellogg should
have better investigated the parking records and because Frisby
intimidated employees into making statements against her. We
disagree that these contentions establish pretext.
Moody's assertion that Kellogg's failure to do more to
investigate her side of the story indicates that the stated reason
14
Moody insists that Frisby and Vannoy should have given her a chance to
explain her parking record, because she car pooled with another person, and the
recorded exits from the garage could have been made by that colleague. Moody
misapprehends the significance of the parking records. They indicate that her car
left precisely when Jones claimed to have gone on errands with her. Frisby and
Vannoy did not use the parking records simply to see whether Moody's car was absent
during the work week; rather, they used them to corroborate Jones's story that Moody
left, with Jones in the car, at particular times.
15
Moody asserts that Reed's statement could not have provided support for her
termination, because the statement was “tainted” by the fact that when Frisby took
Reed's statement, Frisby advised Reed that Moody was no longer with Kellogg. But
Reed's deposition indicates that Reed gave her statement before she was told that
Moody had been fired:
MR. POTTS (Moody's Attorney): . . . [W]hat I'm really trying to find
out, Ms. Reed, is whether at that meeting you were informed that they
were going to fire Jo Ann Moody, regardless of what you said or whether
or not your signed statement would help them, then they would fire Jo
Ann Moody. Do you understand what I'm getting at?
REED: Well, I wasn't told any of that. I was just told to give the
statement. And I gave my statement and they said are you aware SS“Are
you aware that Jo Ann Moody is no longer an employee at Kellogg?”
This discussion shows that Reed gave her statement before she knew Moody was
going to be fired. Moreover, Frisby's deposition testimony indicates that Frisby
took Reed's statement before Vannoy and Frisby terminated Moody, and the fact that
Reed's handwritten and signed statement is dated 8:35 a.m., September 6, 1994 (the
day Moody was fired), corroborates Frisby's testimony.
16
was pretextual fails for two reasons. First, it rests on the
mistaken notion that Kellogg's decision to fire Moody is lawful
only if it proved she had engaged in improprieties. Kellogg
needed only to base its termination decision on a good-faith belief
that Moody had abused her supervisory position in violation of
company policy.16 It did not need to undertake heroic efforts to
ensure that its investigation was flawless.
Moreover, Moody misunderstands the role of the parking
records. The records showing that Moody's car left Kellogg's
premises during the work week were not, by themselves, the basis
for the termination; they merely corroborated Jones's allegation
that Moody and Jones had left work during hours the women's time
sheets showed they worked. Given this limited role, Kellogg did
not need to ask Moody about the parking records to form a
reasonable, good faith belief that Jones was telling the truth.
Moody's claim that Frisby's “intimidation” of employees
indicates a lack of good faith is also unavailing. Frisby may well
have used questionable tactics in questioning some Kellogg
employees about Moody's alleged misconduct. Kellogg's decision to
fire her was not based on coerced testimony, however,17 but on
16
See Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1256 (5th Cir.
1977), overruled in part on other grounds, 647 F.2d 513 (5th Cir. May 1981)
(holding that employer's action based on “honest belief” that the plaintiff
violated time card policy did not constitute unlawful discrimination, even if
employer's belief was based on inaccurate information); Corley v. Jackson Police
Dep't, 566 F.2d 994, 1003 n.14 (5th Cir. 1978) (“[W]here an employer wrongly
believes that an employee has violated company policy, [the employer] does not
discriminate in violation of Title VII if it acts on this belief.”).
17
The evidence reflects that Frisby may have indicated to Sherry Dancer and
Vanessa Reed that they would be terminated if they did not give a statement
(continued...)
17
Jones's allegations, corroborated by the marked-up time sheets and
the parking records, and on Reed's statement.
The evidence compels the conclusion that Kellogg had a
nondiscriminatory business reason for terminating Moody, and Moody
has not produced evidence that would permit a rational juror to
find pretext. Hence, she cannot prove a discriminatorily motivated
adverse employment action, and her ADA claim would fail even if she
had a statutory disability, which she does not.
V.
The court properly granted summary judgment on Moody's
workers' compensation retaliation claim, because she has not
produced sufficient evidence to establish a causal connection
between her filing a claim and Kellogg's decision to fire her.
Section 451 of the Texas Labor Code forbids discrimination against
employees who engage in specific protected activity, including
filing workers' compensation claims. See TEX. LABOR CODE § 451.001;
Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 589 (5th Cir.
1995). To prevail on a § 451 claim, an employee must establish
that his participation in one of the specified types of protected
activity motivated the employer to discharge or otherwise
(...continued)
supportive of the case against Moody. Reed, however, expressly stated that fear of
losing her job did not influence her statement, and Dancer's statement was not part
of the basis of Kellogg's decision to fire Moody. At any rate, Jones's unsolicited
allegations, corroborated by the marked-up time sheets and the parking records, gave
Kellogg a sufficient reason for firing Moody.
18
discriminate against him.18 Moody would have to establish that her
filing the workers' compensation claims was a “but for” cause of
Kellogg's decision; she would have to show that her “protected
conduct [was] such that, without it, the employer's prohibited
conduct would not have occurred when it did.” Continental Coffee
Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).19 This she
cannot do.
Moody first attempts to create a fact issue on causation by
claiming that Marianne Fulghum, the engineering documentation
supervisor, told Moody's co-worker, Pamela Vance, that, if it were
not for Moody and Vance (who also had filed a compensation claim),
the department would have a perfect safety record. This statement,
which is a fact, is insufficient to constitute a causal connection
between Moody's filing of a claim and her termination. There is no
nexus between Fulghum's comment and Frisby's decision to terminate
Moody's employment, and the comment is but a stray remark that
18
See Burfield, 51 F.3d at 589 (citing Swearingin v. Owens-Corning Fiberglass
Corp., 968 F.2d 559, 561 (5th Cir. 1992)).
19
Moody's brief cites a number of cases holding that circumstantial evidence
may establish causation and stating that an employee may prevail on the issue of
causation if he can establish that his protected activity contributed to, but was
not necessarily a “but for” cause of, the termination. All these cases preceded
Cazarez, however. Moody's brief does not even mention Cazarez, the Texas Supreme
Court's controlling case on the causation requirement under § 451.
Moody's reply brief then misconstrues Kellogg's brief as contending that
Cazarez holds that the employee's protected activity must be the sole cause of the
termination. Kellogg actually assertedSScorrectlySSthat Cazarez requires a § 451
plaintiff to establish only but for causation. Moody's initial brief had asserted
that Moody need only establish that her filing for workers' compensation contributed
to Kellogg's decision to fire her. Moody's counsel are advised to be more careful
in the future.
19
cannot support causation.20
Moody next points to Vance's statement, made in an affidavit
submitted after Vance was terminated, that Vance believed her
discharge was retaliatory. Vance stated, “I am of the opinion that
I was terminated because . . . I had sustained an on the job injury
that had resulted in the filing of a workers' compensation claim.”
Moody reasons that this statement, which shows that Kellogg engaged
in retaliatory discharge in other cases, raises a fact question as
to whether Kellogg had terminated Moody with retaliatory motives.
But Vance's conclusionary and speculative affidavit would not
constitute competent evidence of causation in her own case21 and
certainly cannot create an issue of material fact regarding Moody's
claim.
Moody's attempt to prove but for causation using “statistics”
regarding the percentage of workers' compensation claimants who
leave Kellogg is similarly unavailing. Moody notes that from
October 22, 1991, to June 20, 1994, 27 clerical and administrative
personnel similarly situated to Moody filed workers' compensation
claims and that by August 30, 1996, 21 of them, or 77.7 per cent,
were no longer with the company. This evidence, however, is
insufficient to raise a fact issue as to causation. Moody makes no
20
See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir. 1995)
(stating that vague and remote comments are insufficient to establish
discrimination).
21
See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir.
1996) (en banc) (recognizing that it is “well settled that an employee's subjective
belief . . . without more, is not enough to survive a summary judgment motion”);
Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding
that an employee's “subjective beliefs are no more than conclusions and are not
competent summary judgment evidence”).
20
comparison between the attrition rate of workers' compensation
claimants and that of all similarly situated employees. Moreover,
she does not analyze the reasons for the termination of the
workers' compensation claimants; indeed, ten of the twenty-one
resigned voluntarily.
Moody cannot create a fact issue as to causation on the basis
of the fact that similarly situated employees were not disciplined
or discharged for time sheet improprieties, because the employees
to whom Moody refers did not engage in the same misconduct as did
she.22 The record suggests that Judy Gaedchens may have permitted
employees to work through lunch to make up time missedSSadmittedly
a violation of Kellogg's time policies. There is no evidence,
however, that Gaedchens told anyone to augment time sheets with
hours that were never worked. The impropriety Moody apparently
committed is graver than Gaedchens's, and it therefore not
discrimination for Kellogg to take actions against Moody but not
Gaedchens.
Finally, Moody attempts to create a fact issue as to causation
by noting that she was fired the day she presented her doctor's
slip returning her to full-time duty. This evidence is
insufficient to sustain a finding of a causal nexus between her
22
The record does not support Moody's claim that Judy Gaedchens, Vanessa
Reed, or Sherry Dancer engaged in the same misconduct as did Moody. First of all,
Reed and Dancer were not supervisors and thus could not engage in abuse of
supervisory authority. Moreover, the deposition testimony of the three employees
indicates that any misconduct by Gaedchens was different from Moody's. Reed
testified that Moody directed her to write down time that Reed had not worked and
that Gaedchens never gave a similar instruction. Likewise, Dancer testified that
Gaedchens permitted Dancer to work through lunch to make up time missed; Dancer did
not testify that Gaedchens told Dancer to add time to her time sheet that was never
worked. Gaedchens agreed that this was her practice.
21
workers' compensation claims and her termination.23 The cases
finding the timing of the adverse employment decision to be
circumstantial evidence of causation have looked to the temporal
proximity of the injury or workers' compensation filing to the date
of the adverse employment action.24 Moody was fired over six months
after her injury and her final workers' compensation filing.
Hence, the timing of the termination does not create a material
fact issue regarding the causal nexus between her workers'
compensation claim and her termination.
In addition, as stated above, the summary judgment record
compels the conclusion that Kellogg had a legitimate,
nondiscriminatory business reason for terminating Moody: a
reasonable, good faith belief that she was abusing her supervisory
authority. Even if she could establish a causal link between her
termination and her filing for compensation, Kellogg's
nondiscriminatory reason for terminating her would rebut the
alleged discrimination. See Burfield, 51 F.3d at 590.
AFFIRMED.
23
Moody cites Carnation Co. v. Borner, 610 S.W.2d 450, 451 (Tex. 1980), in
support of her claim that the timing of her dismissal establishes causation.
Borner, however, never discusses causation.
24
See, e.g., Burfield, 51 F.3d at 590; Worsham Steel Co. v. Arias, 831 S.W.2d
81, 82 (Tex. App.SSEl Paso 1992, no writ) (finding a retaliatory motive where an
employer terminated an employee a few days after injury, specifically to deny the
employee the opportunity to file a claim); Chemical Express Carriers, Inc. v. Pina,
819 S.W.2d 585, 590 (Tex. App.SSEl Paso 1991, writ denied) (finding a retaliatory
motive where discharge occurred only one month after compensation claim was filed).
22