UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50369
Summary Calendar
WILLIAM M. ALDRUP,
Plaintiff-Appellant,
versus
LOUIS CALDERA, Secretary of the U.S. Department of Army,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
December 10, 2001
Before POLITZ, WIENER and PARKER, Circuit Judges:
POLITZ, Circuit Judge:
William M. Aldrup appeals an adverse summary judgment on his claims of
retaliation under Title VII, discrimination under the ADA, and error committed by
the Merit Systems Protection Board. For the reasons assigned, we affirm.
BACKGROUND
The present action concerns the involuntary removal of Aldrup from his
employment as a firefighter by the United States Army. During his fifteen years
of employment, Aldrup filed fifty-one Equal Employment Opportunity complaints,
none resulted in a finding of discrimination.
On November 27, 1997, Aldrup reported for work at the Camp Bullis Fire
Station. Due to staffing shortages, one of the firefighters from the Bullis Station
had to be assigned for the day to the Fort Sam Houston Station. The Bullis Station
had a rotation list for designating firefighters to be sent to other stations in case of
staffing shortages. On the date in question Aldrup was next on the list and was
ordered to report to the Houston Station, some twenty-three miles distant.
Aldrup refused to drive his personal vehicle between the stations, citing a
regulation that prohibits the use of privately-owned vehicles for government
purposes. He insisted that a government vehicle be provided to transport him
between the stations, even after being informed that no government vehicles were
available and told that he would be reimbursed for the expense of travel. Aldrup
did not report to the Houston Station and his supervisors charged him with
insubordination.
When Aldrup was removed from his position he had been employed for
2
fifteen years. Prior to the incident resulting in his removal, he had been suspended
twice for insubordination. The suspensions were progressively more severe–the
first, in March, 1996, was for two days and the second, in August, 1997, was for
five days. Aldrup does not contest that he failed to comply with the orders leading
up to the charges of insubordination. Rather, he asserts that he had valid reasons
for not obeying the orders.
Aldrup’s failure to report to the Houston Station constituted his third act of
insubordination and he was removed from federal employment. He appealed to the
Merit Systems Protection Board which affirmed his removal.
Following the decision of the Merit Systems Protection Board Aldrup filed
the present action, complaining that the decision of the Merit Systems Protection
Board was arbitrary and capricious. He asserts that he did not fail to report for
work, but that he merely refused to follow the order to use his personal vehicle to
transport himself between the stations. He further contends that even if he did fail
to report, the punishment of removal was too severe, and he really was removed
because of his disability and in retaliation for his complaints.
Aldrup asserts mixed claims, based both on discrimination and other grounds.
Although this court does not generally have jurisdiction to review decisions of the
Merit Systems Protection Board, we have jurisdiction over this type of “mixed
3
case.”1
ANALYSIS
We review the district court's grant of summary judgment de novo.2 Summary
judgment is proper when there is no genuine issue as to any material fact.3 A factual
issue is material if its resolution could affect the outcome of the action.4 In determining
whether there is a genuine issue as to any material fact, all justifiable inferences will
be made in the nonmoving party’s favor, and we will “not weigh the evidence or
evaluate the credibility of witnesses . . ..”5 A “dispute about a material fact is 'genuine'.
. . if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.”6 Therefore, summary judgment is appropriate if the nonmovant fails to establish
facts supporting an essential element of his prima facie claim.7
In a “mixed case” appeal from the Merit Systems Protection Board, we
1
Wiggins v. U.S. Postal Serv., 653 F.2d 219, 221 (5th Cir. 1981).
2
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.
1998).
3
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
5
Id.
6
Id.
7
Celotex Corp., 477 U.S. at 322-23.
4
review de novo discrimination claims raised administratively.8 We apply the
McDonnell Douglas Corp. v. Green,9 burden-shifting framework in Title VII
actions.10 In order to establish a prima facie case of retaliation, the plaintiff must
prove that: (1) he engaged in activity protected by Title VII; (2) an adverse
employment action occurred; and (3) there was a causal connection between the
protected activity and the adverse employment action.11 Assuming the plaintiff is
able to establish his prima facie case, the burden then shifts to the defendant to
demonstrate a legitimate nondiscriminatory purpose for the employment action.12
If the defendant makes the required showing, the burden returns to the plaintiff to
demonstrate that the employer’s articulated reason for the employment action was
a pretext for the real, discriminatory reason.13
In granting summary judgment on his Title VII claims the district court found
that although Aldrup had produced prima facie evidence of retaliation, the
8
5 U.S.C. § 7703(c).
9
411 U.S. 792 (1973).
10
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 50, 506 (1993).
11
Long v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).
12
Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
13
McDonnell Douglas Corp. v. Green, 411 U.S. at 804.
5
defendant had presented evidence of a legitimate nondiscriminatory purpose for
removing him–his repeated insubordination–and that he had failed to offer
evidence to create a fact issue that the defendant’s proffered reason was pretextual.
The failure of a subordinate to follow a direct order of a supervisor is a
legitimate nondiscriminatory reason for taking adverse employment action. 14
Aldrup’s insubordination on three separate occasions was a sufficient
nondiscriminatory reason for his removal.
As to the disability claim, the ADA prohibits discrimination by private
employers against any qualified individual with a disability.15 To establish
discrimination based on disability, he had to demonstrate that: (1) he was disabled;
(2) he was none-the-less qualified to do the job; (3) an adverse employment action
was taken against him; and (4) that he was replaced by or treated less favorably
than non-disabled employees.16 An individual is disabled under the ADA if he
demonstrates: (1) he has a physical or mental impairment that substantially limits
14
Chaney v. New Orleans Pub. Facility Mgmt., 179 F.3d 164, 167 (5th Cir.
1999).
15
42 U.S.C. § 12112 (1995).
16
McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir. 2000).
6
one or more of his major life activities; (2) he has a record of such impairment; or
(3) he is regarded as having such an impairment.17
Major life activities include caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.18 An
impairment is substantially limiting only if it “significantly restricts [the
individual’s] . . . ability to perform either a class of jobs or a broad range of jobs in
various classes as compared to the average person having comparable training,
skills, and abilities.”19
In granting defendant’s motion for summary judgment, the district court
determined that Aldrup had failed to offer evidence that he was substantially
limited in the life activity of working and that he had failed to create a fact issue
that the defendant’s proffered reason for his removal was pretextual.
Aldrup alleges that he suffers from the disability of depression caused by
“the stress and anxiety of having to work with certain employees at the [Houston
17
42 U.S.C. § 12102(2).
18
29 C.F.R. § 1630.2(I) (1998). The EEOC guidelines, “while not
controlling upon the courts by reason of their authority, do constitute a body of
experience and informed judgment to which courts and litigants may properly
resort for guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986).
19
29 C.F.R. § 1630(j)(3)(I).
7
Station].” This claim, if supported by the record, would merely tend to show that
he was unable to perform any job at one specific location, and is not evidence of
Aldrup’s general inability to perform a broad class of jobs. The central evidence
offered by Aldrup in support of his disability claim is a letter from a physician
concluding that he “has a medical condition that substantially limits one or more
of his major life activities . . ..” The district court properly determined that such
unsupported conclusional statements are not entitled to evidentiary weight.20
Additionally, Aldrup offers that he was on medical leave from his employment
from March 28, 1997 through May 1, 1997. This evidence is not sufficient to
create a jury question as to whether he was disabled.
Aldrup also asserts that he was “regarded as” disabled by defendant. An
individual is “regarded as” disabled when a covered entity mistakenly believes that:
(1) a person has a physical impairment that substantially limits one or more major
life activities; or (2) an actual, non-limiting impairment substantially limits one or
more major life activities.21 In both situations, the covered entity must entertain
some misperception regarding the individual–either that he has a substantially
20
See, e.g., Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co., 179 F.3d 169,
180 (5th Cir. 1999).
21
Sutton v. United Airlines, Inc., 527 U.S. 471, 489 (1999).
8
limiting impairment that he does not have or the impairment is not so limiting as
believed.22 Aldrup has presented no evidence whatsoever to base the slightest
inference that defendant believed he was disabled.
In addition, Aldrup claims that the punishment of removal for his
insubordination was excessive in light of the disciplinary actions taken by
defendant in dealing with other individuals. Aldrup cites a number of examples of
purported bad conduct by other employees for which they were either not
disciplined or not removed from federal employment. None of the examples listed
are similar to Aldrup’s acts of insubordination.23
Finally, we review non-discrimination claims based on the administrative
record, and will uphold the Merit Systems Protection Board’s determinations unless
they are clearly arbitrary and capricious, unsupported by substantial evidence or
otherwise not in accordance with law.24
In attacking the Merit Systems Protection Board’s determination, Aldrup
raises a number of issues. The majority of these claims were waived under the
22
Id.
23
Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)
(requiring the plaintiff to establish that other employees were in “nearly identical
circumstances” to support disparate treatment claim).
24
5 U.S.C. § 7703(c).
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parties’ stipulation25 or are raised for the first time on appeal.26 Therefore, we limit
our review to the determination, whether the decision of the Merit Systems
Protection Board affirming the removal of Aldrup was arbitrary and capricious, not
supported by substantial evidence, or otherwise not in accordance with the law.
In granting summary judgment, the district court found that “Aldrup’s refusal
to report to work at Fort Sam Houston, even when described as merely a refusal to
use his [personal vehicle], was a serious infraction.” The court reasoned that given
the wide discretion granted to administrative agencies in disciplining their
employees, removal after three instances of insubordination was not arbitrary and
capricious. Under the facts at bar, we agree.
Aldrup asserts that his supervisor’s order that he use his personal vehicle
violated the federal Joint Travel Regulations and that he believed the order to be
illegal. He also contends that he was entitled to disobey his supervisor’s order
25
The parties’ stipulation of January 4, 2001, limited the claims to include
only the allegations that: (1) Aldrup’s removal was retaliatory under Title VII of
the Civil Rights Act of 1964; (2) the removal was motivated by disability
discrimination; and (3) the decision of the Merit Systems Protection Board
affirming Aldrup’s removal was arbitrary, capricious, not supported by substantial
evidence or otherwise not in accordance with the law.
26
Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Centers, Inc., 200
F.3d 307, 316-17 (5th Cir. 2000) (“It is a bedrock principle of appellate review that
claims raised for the first time on appeal will not be considered. This rule is
equally applicable to summary judgment cases.”).
10
because it placed him in personal jeopardy. Generally, a subordinate must obey an
order first and complain later.27 There is an exception when obeying the order
would place the subordinate in a clearly dangerous situation.28 Aldrup notes that
his automotive insurer would not cover his vehicle while driven for government
purposes. Such real or imagined concerns over insurance coverage do not rise to
the sort of personal jeopardy that would justify disobeying a direct order from a
supervisor.
Aldrup raises a number of additional complaints regarding the administrative
determinations, including that the penalty of removal was too severe under the
totality of the circumstances, and that the administrative panel should have allowed
him to mount a renewed challenge to his two previous suspensions. Agencies are
given wide discretion in disciplining their employees29 and, based on the record, it
cannot be said that the decision to remove Aldrup was arbitrary and capricious.
Regardless, Aldrup’s claim that the administrative panel should have allowed him
27
Bigelow v. Dep’t of Health & Human Servs., 750 F.2d 962, 965 (Fed. Cir.
1984) (holding that “[g]overnment employees . . . may not refuse to do work
merely because of disagreements with management . . . [and failure] to perform
their duties . . . [is done] at the risk of being insubordinate.”).
28
Cragg v. U.S. Air Force, 13 M.S.P.R. 296, 299 (1982).
29
Stanek v. Dep’t of Transp., 805 F.2d 1572, 1580 (Fed. Cir. 1986).
11
a renewed attack on his previous suspensions was waived because it was not raised
in his response to defendant’s motion for summary judgment. 30
For these reasons, the judgment appealed is AFFIRMED.
30
Vaughner v. Pulito, 804 F.2d 873, 877 n.2 (5th Cir. 1986) (noting that
failure to assert a legal reason why summary judgment should not be granted is waived
if later raised on appeal).
12