IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 02-60056
Summary Calendar
____________________
EDWARD T LINDSEY
Plaintiff-Appellant
v.
CHEVRON USA INC
Defendant-Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
No. 1:00-CV-379-BrR
_________________________________________________________________
October 10, 2002
Before KING, Chief Judge, and WIENER and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Edward T. Lindsey appeals from the
district court’s decision granting summary judgment to Defendant-
Appellee Chevron U.S.A., Inc. on Lindsey’s claims for race-based
*
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that this opinion should not be published and is not precedent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.
discriminatory discharge and hostile work environment in
violation of Title VII of the Civil Rights Act of 1964,
disability-based discrimination in violation of the Americans
with Disabilities Act, and termination based on a request for
leave in violation of the Family Medical Leave Act. For the
reasons set forth below, we AFFIRM the district court’s grant of
summary judgment to Chevron U.S.A., Inc.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 9, 1984, Edward T. Lindsey, an African-American
male, was hired by Chevron U.S.A., Inc. (“Chevron”) to serve as a
mechanic trainee in the refinery maintenance department. In
April 1990, Chevron promoted Lindsey to the position of refinery
mechanic. He remained in that position until his termination.
While in the employ of Chevron, Lindsey also worked as a
temporary supervisor on several occasions.
On February 22, 1997, Lindsey underwent surgery to receive a
pacemaker in his heart. He subsequently went on medical
disability and received sick leave benefits. Despite the fact
that Lindsey’s physician had released him to return to work on
March 27, Lindsey did not resume his duties at Chevron until May
22, three months after his surgery. When Lindsey returned to
Chevron, he presented a note from his doctor informing his
supervisors of the work limitation brought about by his heart
condition. On doctor’s orders, Lindsey was to avoid working near
2
high voltage equipment. Chevron placed Lindsey on paid leave
while it searched for a temporary job assignment that would
accommodate him. On June 2, Chevron assigned Lindsey to a
temporary clerical position and when that assignment ended,
Chevron again placed Lindsey on paid leave until July 17, on
which date Lindsey’s physician removed the work restriction.
On April 20, 1998, Lindsey filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”),
contending that he had been discriminated against on the basis of
race and disability. On February 21, 2000, Chevron placed
Lindsey on three-day disciplinary suspension without pay for
excessive absenteeism and repeated tardiness over a three-month
period starting in March 1999. Lindsey’s notice of suspension
admonished that failure to improve his record of tardiness and
absence from work could result in further disciplinary action,
including the possibility of termination.
Beginning March 1, 2000, Lindsey failed to report to work
for six consecutive work days. On March 9, Lindsey’s doctor
informed Chevron that Lindsey had not been instructed to stay
home after Lindsey underwent several medical tests, and instead
he had been cleared to work. On March 10, Chevron discharged
Lindsey on account of his numerous absences from work.
On May 5, 2000, Lindsey filed a second EEOC charge, alleging
that Chevron retaliated and discriminated on the basis of
disability in discharging him. On August 9, Lindsey filed this
3
lawsuit asserting that: (1) because of his race, he was denied a
promotion, discharged, and endured a hostile work environment,
all in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. 2000e et seq. (2000); (2) he was
terminated in retaliation for filing his EEOC charge; (3) Chevron
failed to accommodate his disability, in violation of the
Americans with Disabilities Act (“ADA”), 29 U.S.C. 701 et seq.
(1994); (4) he was denied leave time that was protected under the
Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. 2601 et seq.
(1994); and (5) under Mississippi law, Chevron intentionally
inflicted emotional distress upon him.
On October 15, 2001, Chevron moved for summary judgment as
to all of Lindsey’s claims. In its Memorandum Opinion and Order
of December 20, 2001, the district court granted summary judgment
in favor of Chevron, finding that Lindsey had failed to present a
genuine issue of material fact with regard to any of his asserted
claims. Lindsey timely appealed the grant of summary judgment.
II. STANDARD OF REVIEW
We review the district court’s grant of summary judgment to
Chevron de novo, applying the same standard as the district
court, e.g., Brown v. Bunge Corp., 207 F.3d 776, 781 (5th Cir.
2000), and ask whether the pleadings, depositions, and answers to
interrogatories, together with the affidavits, demonstrate that
no genuine issue of material fact remains and that the moving
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party is entitled to judgment as a matter of law. E.g., Boze v.
Branstetter, 912 F.2d 801, 804 (5th Cir. 1990); FED. R. CIV. P.
56(c). A factual dispute is genuine when a reasonable jury could
return a verdict for the non-moving party. Anderson v. Liberty
Lobby Inc., 477 U.S. 242, 248 (1986).
The substantive law dictates which facts are material,
Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999), and an
issue is material if its resolution could affect the outcome of
the action, Anderson, 477 U.S. at 248. Moreover, in summary
judgment determinations, the factual record is reviewed in such a
way that all inferences are drawn in the light most favorable to
the party opposing the motion. E.g., Jurgens v. EEOC, 903 F.2d
386, 388 (5th Cir. 1990). Accordingly, we review the evidence
most favorably to Lindsey.
III. LINDSEY’S RACE DISCRIMINATION CLAIMS
On appeal, Lindsey asserts two theories of discrimination
under Title VII. First, he claims that Chevron discharged him on
the basis of race and second, he claims that he endured a
racially hostile work environment while at Chevron. As to the
first theory, to establish a prima facie case of discriminatory
discharge, Lindsey must show that: (1) he is a member of a
protected group; (2) he was qualified for the position held; (3)
he was discharged from his position; and (4) that he was replaced
by someone outside of the protected group. E.g., Byers v. Dallas
5
Morning News, 209 F.3d 419, 426 (5th Cir. 2000). After Lindsey
makes out a prima facie case of discrimination, Chevron must
provide some legitimate, non-discriminatory reason for the
employee’s rejection. See id. (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973)). If Chevron proffers a
legitimate, non-discriminatory reason for the employment action,
Lindsey must come forward with evidence that Chevron’s reason was
a mere pretext for discrimination. See id.1
To make out his prima facie case, Lindsey contends that he
was a member of a protected class and that he was qualified to
perform his job duties as assigned. He further asserts that
similarly-situated Caucasian employees were treated more
favorably. To explain, Lindsey provides the example of another
Chevron employee, Joseph Guy, who was allegedly given adequate
1
Under the Racial Discrimination section of his Amended
Complaint, Lindsey merely asserts that he was “terminat[ed] . . .
while on medical leave.” Perhaps because of Lindsey’s conclusory
pleading on the issue, the district court did not specifically
address the elements of the discriminatory discharge claim in its
opinion. The court did, however, grant summary judgment on
Lindsey’s discriminatory denial of promotion claim. Even though
the district court did not specifically address the
discriminatory discharge claim, the reason for granting summary
judgment as to the discriminatory denial of promotion claim would
equally apply.
Further, the court need not address whether Lindsey raised a
genuine issue of material fact regarding his claim for
discriminatory denial of promotion (or the retaliation and
intentional infliction of emotional distress claims, for that
matter) because he waived review of these issues by not
incorporating them into his Brief. See, e.g., Sherrod v. Am.
Airlines, 132 F.3d 1112, 1119 n.5 (5th Cir. 1998) (citing cases
and FED. R. APP. P. 28).
6
warning prior to termination, while Lindsey was not provided with
such a warning. Chevron counters that in relying on Lindsey’s
record of excessive absences and tardiness, it presented
uncontested evidence of a legitimate, non-discriminatory reason
for its employment action. Thus, Chevron claims, it satisfied
its burden of production under the Title VII framework and that
Lindsey has not raised a genuine issue of material fact as far as
pretext is concerned.
Our assessment of the discriminatory discharge claim,
however, need not involve the burden shifting analysis because
Lindsey has failed to satisfy his prima facie case of
discrimination. Lindsey does not rely on the proper standard for
discriminatory discharge articulated by the Fifth Circuit. As a
result, Lindsey fails to come forward with any evidence as to one
essential element of his prima facie case, i.e., whether Chevron
replaced him with someone outside of his protected group. There
is no evidence in the record that Chevron replaced Lindsey with a
non-African-American once he was terminated. Because summary
judgment is appropriate if a plaintiff fails to establish facts
supporting an essential element of his prima facie claim, e.g.,
Mason v. United Air Lines, 274 F.3d 314, 316 (5th Cir. 2001),
Lindsey’s claim for discriminatory discharge fails.
As to Lindsey’s claim of a racially hostile work
environment, this court has made it clear that a plaintiff must
7
show the following to satisfy a prima facie case: (1) he belongs
to a protected group; (2) he was subjected to unwelcome
harassment; (3) the harassment complained of was based on race;
(4) the harassment complained of affected a term, condition, or
privilege of employment; and (5) the employer knew or should have
known of the harassment in question and failed to take prompt
remedial action. E.g., Ramsey v. Henderson, 286 F.3d 264, 268
(5th Cir. 2002). Harassment based on race affects a term,
condition, or privilege of employment when it is sufficiently
severe or pervasive so as to alter the conditions of the
plaintiff’s employment and create an abusive working environment.
Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)).
When determining whether a workplace constitutes a hostile
work environment, courts consider the following circumstances:
"the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably interferes with
an employee's work performance.” Id. (quoting Walker v.
Thompson, 214 F.3d 615, 625 (5th Cir. 2000)). All of the alleged
circumstances must be taken into consideration when evaluating a
claim of a racially hostile work environment. See id.
In support of his claim, Lindsey argues that his supervisors
at Chevron used racial epithets in his presence; that while he
8
was hospitalized, Chevron officials did not send him flowers or
visit him in the hospital, which was allegedly unlike the
treatment that several non-African-American employees received;
that he was required to climb a ladder when he was dizzy; that a
supervisor cursed at him; and that Chevron management allegedly
allowed employees to hang Confederate flags in the maintenance
trailer. Chevron argues that none of the alleged harassment
rises to the level of affecting a term, condition, or privilege
of Lindsey’s employment.
Lindsey fails to present competent summary judgment evidence
support a prima facie case. Of all the articulated incidences,
the only acts of harassment alleged to be race-based are the
racial epithets, the hanging of Confederate flags, and the lack
of hospital visits. These incidences do not rise to the
requisite degree of severity and pervasiveness that our
precedents require. While a plaintiff may survive summary
judgment by showing the existence of “routinely [made] racist
remarks,” Walker, 214 F.3d at 626, the instant case is
distinguishable because Lindsey never provides evidence
concerning the frequency (or a chronological description) of the
epithets. Even viewing the evidence in the light most favorable
to Lindsey, we cannot assume that the epithets were routine in
nature. Further, Lindsey provides no evidence to suggest that
these racial slurs, combined with Chevron’s decision not to visit
9
Lindsey or send him flowers when at the hospital and the hanging
of the flags, either unreasonably interfered with his work
performance or caused him to feel physically threatened or
humiliated.
In sum, no reasonable jury could return a verdict in favor
of Lindsey on the ground that he experienced harassment that was
sufficiently severe and pervasive. Accordingly, we again find it
unnecessary to undergo the burden shifting analysis because
Lindsey failed to establish his prima facie case for a racially
hostile work environment. Summary judgment as to this particular
claim was proper.
IV. LINDSEY’S DISABILITY DISCRIMINATION CLAIM
Lindsey also argues that Chevron violated the ADA when it
failed to accommodate his alleged disability. A plaintiff cannot
assert that his employer is required to make reasonable
accommodations to his physical or mental limitation until he
satisfies the test for disability discrimination. See, e.g.,
Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir. 1999).
The first element of a prima facie case for disability
discrimination is that the plaintiff was a qualifiedly disabled
employee. E.g., Dupre v. Charter Behav. Health Sys. of
Lafayette, Inc., 242 F.3d 610, 613 (5th Cir. 2001). Hence, the
threshold issue in this case is whether Lindsey is considered
disabled under the ADA.
10
To qualify as disabled, Lindsey must demonstrate that: (1)
he has a physical or mental impairment that substantially limited
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. E.g., Aldrup v. Caldera, 274 F.3d 282, 286 (5th Cir.
2001). The Supreme Court has defined major life activity as
those activities that are “of central importance to daily life.”
Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, - - -,
122 S. Ct. 681, 691 (2002).2 A substantial limitation on such
life activities would be a limitation that is “considerable” or
“to a large degree.” Id.
On appeal, Lindsey asserts that Chevron failed to move
expeditiously in providing him the necessary equipment that would
assist him at work. Such delay in accommodation, he continues,
violates the ADA. Chevron argues that Lindsey cannot satisfy his
burden that he was terminated because of his alleged disability.
Chevron also agrees with the district court’s determination that
there was no evidence to support the contention that Lindsey’s
heart condition, depression or diabetes substantially limited or
impaired any of his major life activities.
Simply put, Lindsey’s ADA accommodation claim falls short
because he failed to adduce evidence suggesting that he was
2
Examples of major life activities include speaking,
breathing, learning, and working. E.g., Aldrup, 274 F.3d at 286.
11
qualifiedly disabled. The summary judgment record provides no
indication of whether Lindsey’s heart condition, depression or
diabetes substantially limited one or more major life activity.
Lindsey has never provided evidence indicating that his medical
conditions ever came close to limiting his major life activities
considerably or to a large degree.3 Moreover, Lindsey has never
contended that he had a record of such an impairment or that
Chevron regarded him as having such an impairment, preventing him
from establishing disability through these methods.
Because Lindsey could not raise a genuine issue of material
fact as to the first element of a prima facie case for disability
discrimination, he is precluded from claiming that Chevron was
required to make reasonable accommodations to his physical
condition. Summary judgment was appropriate.4
V. LINDSEY’S FMLA CLAIM
Lindsey also claims that Chevron violated the terms of the
FMLA. Under the FMLA, an “eligible” employee is entitled to up
3
In his deposition testimony, Lindsey stated that after
his pacemaker surgery, he had no trouble walking, seeing,
hearing, caring for himself, driving, and lifting objects. In
fact, his doctor cleared him for work a month after surgery.
4
While an in-depth discussion of the other elements of
his prima facie case would only be superfluous, it is also worth
observing that Lindsey failed to raise a genuine issue of
material fact as to whether he was none-the-less qualified to
perform his job at Chevron and he was replaced by or treated less
favorably than non-disabled employees
12
to twelve weeks leave when a serious health condition renders the
employee unable to perform the functions of his or her position.
E.g., Seaman v. CSPH, Inc., 179 F.3d 297, 302 (5th Cir. 1999).5 A
“serious health condition” is defined as “an illness, injury,
impairment, or physical or mental condition that involves—(A)
inpatient care in a hospital, hospice, or residential medical
care facility; or (B) continuing treatment by a health care
provider.” E.g., Price v. Marathon Cheese Corp., 119 F.3d 330,
333-34 (5th Cir. 1997).
Specifically, Lindsey asserts that an FMLA violation
occurred when Chevron gave him an incorrect form. He also
contends that his thirty-four days of sick leave were allowed
under the FMLA, which expressly provides a full sixty days of
leave. Because he did not take leave time beyond that which was
statutorily-allotted, Lindsey claims his termination upon his
request for FMLA leave was unlawful. Chevron reasons that the
FMLA is available only to employees who require leave due to
serious health conditions and Lindsey offers no proof of a such a
condition. Similarly, the district court found that because
there was no documentation whatsoever relating to his medical
condition or care at the time of his termination, Lindsey could
5
The FMLA also provides leave when an employee needs to
care for a newborn child, place a child for adoption or care for
an adopted child, or care for family member with serious medical
condition. None of these circumstances arises in the instant
case, so consideration of them is unnecessary.
13
not show that he endured a serious medical condition for which
leave was not granted.
We agree with the district court’s assessment of Lindsey’s
FMLA claim. To survive summary judgment, Lindsey must first
raise a genuine issue of material fact that he was eligible for
FMLA-protected leave. Lindsey’s claim boils down to the
contention that Chevron retaliated against him when it terminated
him upon his request for leave in March 2000.6 The timing and
justification for the requested leave, not the number of days of
leave not taken, are critical here. Although the summary
judgment record suggests that, in the past, Lindsey’s medical
treatments may have constituted serious medical conditions
warranting FMLA-protected leave, there is no evidence in the
record indicating that the leave requested in March 2000 was
justified by a serious medical condition. Because Lindsey does
not assert such a justification, he is not be eligible for
protection under the FMLA for the leave request at issue. Hence,
Lindsey cannot raise a genuine issue of material fact as to
whether Chevron violated his rights under the FMLA. Summary
judgment was appropriate.
6
Contrary to Lindsey’s assertion, there is no legal
authority to support the claim that distribution of an incorrect
form violates the FMLA.
14
VI. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court granting summary judgment to Chevron on all
asserted claims.
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