United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50656
DICK W ARRINGTON
Plaintiff - Appellant
v.
SOUTHWESTERN BELL TELEPHONE CO
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
No. MO-00-CV-57
Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Dick W. Arrington appeals the district
court’s grant of summary judgment to Defendant-Appellee
Southwestern Bell Telephone Company (“SW Bell”) on his disability
discrimination and retaliation claims. For the following
reasons, we AFFIRM.
I. BACKGROUND
Arrington was employed by SW Bell from 1974 to 1998.
*
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that this opinion should not be published and is not precedent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.
Beginning in 1979, Arrington worked as a Customer Services
Technician (“CST”), installing and repairing phones and phone
lines for SW Bell’s customers at their homes and places of
business. Arrington was diagnosed with diabetes in 1986, and his
supervisor, Junior Brown, admits that he and the company were
aware of this diagnosis. In fact, in December 1995, Arrington
had to take disability leave due to problems associated with
diabetic ulcers on his feet. After a dispute over his date of
return, Arrington was discharged and filed a complaint with the
Equal Employment Opportunity Commission (“EEOC”). Arrington and
SW Bell subsequently settled their dispute, and Arrington was
reinstated to his position as a CST in January 1997.
SW Bell repeatedly counseled Arrington for absenteeism and
productivity problems beginning in 1987. In addition, the
company began to receive numerous complaints from customers about
Arrington’s physical appearance, attitude, and skill level in
1988, for which Arrington was also repeatedly counseled. In
1995, Arrington was informed by SW Bell that, because of his low
productivity and tendency to waste time on the job, he was
ineligible to work overtime until there was a “noticeable
improvement” in his performance. This restriction continued to
apply after Arrington was reinstated in January 1997.
In November 1997, SW Bell placed Arrington on Decision
Making Leave due to a customer’s complaints that Arrington
mistakenly cut the customer’s doorbell wire, that his appearance
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upset the customer’s daughter, and that he had a poor attitude.
Under the Leave, Arrington was given a day to decide whether to
return to work at SW Bell. He agreed to return and was placed on
probation for one year, during which he was subject to dismissal
for unsatisfactory performance of his job duties. Then, on June
24, 1998, Junior Brown visited a job site listed on Arrington’s
schedule, but he could not find Arrington. Both parties agree
that Brown contacted the customer, Ms. Prickle, the next day to
determine whether Arrington had, indeed, worked there. According
to Brown, Prickle complained about Arrington’s inability to
finish the job and his rude behavior; Brown also contends that
Arrington improperly coded his work for Prickle, in violation of
company policy. As a result, Arrington was suspended from his
CST position, and SW Bell later offered him a Supplies Attendant
position, which did not involve either customer contact or
productivity requirements. When Arrington refused to accept this
position, SW Bell dismissed him.
After his second termination from SW Bell, Arrington
initiated the present lawsuit, alleging that SW Bell violated the
Americans with Disabilities Act (“ADA”) by subjecting him to
disparate treatment and eventually firing him because of his
diabetes. Arrington also alleges that his treatment and
discharge from SW Bell were improperly motivated by retaliation
for his filing of an EEOC complaint in 1996. For example,
Arrington believes that SW Bell solicited all of the customer
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complaints against him and that other, less efficient CSTs were
neither disciplined nor counseled, as he was, for poor
productivity.
In January 2003, SW Bell filed a motion for summary
judgment, asserting that Arrington had failed to establish either
that he suffered from a legally cognizable “disability” or that
SW Bell’s proffered reasons for firing him were pretextual. The
district court agreed, and granted summary judgment in favor of
SW Bell on both the disability discrimination and retaliation
claims in May 2003. Arrington appeals both of these decisions.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo, applying the same standard as the district court. Seaman
v. CSPH, Inc., 179 F.3d 297, 299 (5th Cir. 1999). Summary
judgment is appropriate when the record demonstrates no genuine
issue of material fact and where the moving party is entitled to
a judgment as a matter of law. FED. R. CIV. P. 56(c). Although in
our review of the record we must draw all reasonable inferences
in favor of the nonmoving party, “[t]he moving party is entitled
to a judgment as a matter of law [if] the nonmoving party has
failed to make a sufficient showing on an essential element of
[his] case with respect to which [he] has the burden of proof.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal
quotation marks omitted). Moreover, we have stated that the
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nonmoving party does not demonstrate the existence of a genuine
issue of fact (and does not thereby avoid summary judgment) by
asserting “some metaphysical doubt as to the material facts, by
conclusory allegations, by unsubstantiated assertions, or by only
a scintilla of evidence.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc) (citations and internal
quotation marks omitted).
III. DISCUSSION
A. Disability Discrimination
A plaintiff may prove intentional discrimination under the
ADA either by presenting direct evidence of discrimination or by
utilizing the familiar McDonnell Douglas burden-shifting method
of proof. Seaman, 179 F.3d at 300. Because Arrington provides
only circumstantial evidence of discrimination, we review his
claim under the latter standard. To establish a prima facie case
of disability discrimination, Arrington must show that he “(1)
suffers from a disability; (2) was qualified for the job; (3) was
subject to an adverse employment action, and (4) was replaced by
a non-disabled person or treated less favorably than non-disabled
employees.” Id.; see also 42 U.S.C. § 12112(a) (2000).
The parties dispute whether Arrington has met his burden of
proof regarding the first element of the prima facie case. Under
the ADA, a “disability” is defined as
(A) a physical or mental impairment that
substantially limits one or more of the major life
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activities of [an] individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2) (2000). Arrington asserts that he meets
either definition (A) or definition (B) because he suffers from
diabetes.2 Specifically, he argues that this circuit held, in
Gonzales v. City of New Braunfels, 176 F.3d 834, 837 (5th Cir.
1999), that insulin-dependent diabetes is a “disability” as that
term is defined in the ADA. SW Bell disagrees, and contends that
Arrington must produce evidence suggesting that his diabetic
condition “substantially limits” at least one of his “major life
activities.” See 42 U.S.C. § 12102(2)(A); EEOC v. R.J. Gallagher
Co., 181 F.3d 645, 655 (5th Cir. 1999) (holding that, for a
plaintiff to prove that he has a “record of impairment” under 42
U.S.C. § 12102(2)(B), “there must be a record of an impairment
that substantially limits one or more of [his] major life
activities”).
SW Bell correctly identifies the flaws in Arrington’s
position. Gonzales does not stand for the proposition that
diabetes is a disability per se; rather, Gonzales merely noted
that, at that time, this circuit’s precedents required a
plaintiff’s claim that he suffered a “disability” to be evaluated
by considering the impact of the plaintiff’s untreated impairment
on his major life activities. 176 F.3d at 837. Under that test,
2
Arrington concedes that he was not regarded as
disabled.
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the Gonzales court observed that insulin-dependent diabetes would
qualify as a disability because, if someone with this disease is
deprived of insulin, he will lapse into a coma. Id. But this
observation was mere dicta, and the Gonzales court cautioned that
the Supreme Court was currently considering whether disabilities
should, in fact, be measured without reference to mitigating
factors. Id. Thus, not only is this observation not binding
precedent, but its logical force has been undermined by the
Supreme Court’s subsequent determination, in Sutton v. United Air
Lines, Inc., 527 U.S. 471, 482-83 (1999), that “[a] person whose
physical or mental impairment is corrected by medication or other
measures does not have an impairment that presently
‘substantially limits’ a major life activity.” Instead, whether
a person is disabled under the ADA “depends on whether the
limitations an individual with an impairment actually faces are
in fact substantially limiting.” Id. at 488.3
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,
534 U.S. 184 (2002), the Supreme Court further clarified that
“[i]t is insufficient for individuals attempting to prove
disability status under this test to merely submit evidence of a
3
Moreover, Sutton specifically cautioned that assessing
diseases in their untreated state would require courts to, for
example, treat all diabetics as disabled per se, a result which
the Court noted “is contrary to both the letter and the spirit of
the ADA.” 527 U.S. at 484; see also Waldrip v. Gen. Elec. Co.,
325 F.3d 652, 656 (5th Cir. 2003) (“[N]either the Supreme Court
nor this court has recognized the concept of a per se disability
under the ADA . . . .”).
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medical diagnosis of an impairment”; instead, plaintiffs are
required to offer evidence of the “extent of the limitation . . .
in terms of their own experience.” Id. at 198 (citation and
internal quotation marks omitted). Therefore, because Arrington
attempts to prove that he suffers from a disability simply by
referring to his medical diagnosis of diabetes, Arrington’s claim
must fail. He has not explained, in either his opposition to
summary judgment or his brief on appeal, how his diabetes has
limited any of his major life activities.
Nevertheless, in his deposition, Arrington complained that,
when he worked at SW Bell, his diabetes affected his
“production.”4 Viewing the record in the light most favorable to
Arrington, he may have been attempting to argue that his diabetes
qualifies as a disability because it substantially limited his
major life activity of “working.” But this argument fails as a
matter of law. While we have recognized that “working” is a
major life activity for the purposes of the ADA, R.J. Gallagher
Co., 181 F.3d at 654, this court has also explained that
“[e]vidence of disqualification from a single position or a
narrow range of jobs will not support a finding that an
individual is substantially limited from the major life activity
4
Additionally, in his motion for summary judgment,
Arrington stated that SW Bell should have accommodated his
disability by allowing him additional time to complete his jobs.
But Arrington also conceded that he never requested that SW Bell
provide him with any reasonable accommodations.
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of working.” Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025
(5th Cir. 1999); accord Sutton, 527 U.S. at 491. Thus, because
he does not claim that he was incapable of performing a range of
jobs due to his diabetes, Arrington has not demonstrated that he
has either a disability or a record of impairment under the ADA.5
B. Retaliation
To establish a prima facie case of retaliation, a plaintiff
must prove that (1) he engaged in an activity protected by the
ADA, (2) he was subjected to an adverse employment action, and
(3) a causal connection existed between his participation in the
protected activity and the adverse employment action. Seaman,
179 F.3d at 301. Once the plaintiff has proven a prima facie
case, the burden of production shifts to the defendant to come
forward with a legitimate, non-discriminatory reason for the
adverse employment action. Id. If such a reason is provided,
then the plaintiff must proffer evidence that the given reason is
pretextual. Id. In essence, the plaintiff “must show that ‘but
for’ the protected activity, the adverse employment action would
not have occurred.” Id.
We need not decide whether Arrington has established a prima
5
To the extent that Arrington’s response to SW Bell’s
motion for summary judgment can be read to imply that the
diabetic foot ulcers on his feet substantially limited his major
life activity of “walking,” it fails as a matter of law. Cf.
Talk, 165 F.3d at 1025 (holding that a plaintiff’s ability to
walk was not substantially limited simply because she walked with
a limp, moved slower than other people, and was required to wear
special orthopedic shoes).
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facie case of retaliation because he has failed to demonstrate a
genuine issue of fact regarding whether SW Bell’s legitimate,
non-discriminatory reason for firing him was pretextual. SW Bell
has provided evidence that Arrington was discharged due to his
troubled performance history and the company’s receipt of
numerous customer complaints regarding Arrington’s appearance,
demeanor, and working skills. In addition, SW Bell has shown
that, in an attempt to help Arrington improve his performance and
prevent his termination, SW Bell placed Arrington on five
different Performance Improvement Plans, offered him assistance
from the company’s Employee Assistance Program (he declined), and
offered him two days of “ride along” assistance from a training
manager (he refused to participate on the second day). Yet,
after he was placed on one year of probation and warned that
further problems would warrant immediate dismissal, Arrington was
the subject of another customer complaint. But because
Arrington’s difficulties were centered on interaction with
customers and his level of productivity, SW Bell asserts, and
Arrington concedes, that instead of being immediately fired he
was offered the Supplies Attendant position, which he declined.
Thus, SW Bell has met its burden of providing a legitimate, non-
discriminatory reason for discharging Arrington.
In rebuttal, Arrington provides only a scintilla of evidence
that SW Bell’s proffered reasons are pretextual. Arrington
claims that, after he returned to work in 1997, SW Bell unfairly
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disciplined him for his poor performance while the company’s
other employees with similar productivity levels were not
disciplined. For support, Arrington provides a statement from
Clay Everett, Arrington’s union supervisor, that refers to
Arrington’s job productivity as in the “middle of the pack”
compared to other SW Bell employees.6 Yet, both Everett and
Arrington have also admitted that Arrington was once one of the
slowest employees in Midland and that, although his performance
was improving, he had not achieved the “mark where he needed to
be” before he was terminated.
In addition to contesting SW Bell’s view of his
productivity, Arrington alleges that the customer complaints
lodged against him were improperly solicited by SW Bell’s
employees. But other than the Prickle incident, where Arrington
challenged his supervisor to call the customer and check that he
was really working at her home, Arrington provides no evidence to
support his claim of solicitation. The remainder of Arrington’s
examples of disparate treatment––that he was sent home for
wearing footwear that another CST was allowed to wear, that he
6
Everett’s statement refers to a document comparing the
number of jobs performed per day by many of SW Bell’s employees.
Because this document has not been made a part of the summary-
judgment record, it is impossible for this court to know whether
that document compared a variety of SW Bell’s statewide
employees, only SW Bell’s CSTs or, more specifically, only those
CSTs who worked in the Midland office. In addition, the record
does not reflect whether any of the employees on this list were
subject to discipline nor does it reflect the number of customer
complaints associated with each employee.
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was given an un-air-conditioned van rather than the cable truck
driven by other CSTs, that his tools were substandard, that his
supervisors made rude comments about his age and productivity,
and that he was subjected to more extensive medical evaluations
than his fellow CSTs––are not relevant to the issue at hand:
whether SW Bell’s explanation that Arrington was fired for poor
productivity and customer complaints is merely pretext for
retaliation.
In support of his claim of pretext, Arrington also contends
that SW Bell did not follow its standard practice of allowing a
union supervisor to investigate the customer complaints lodged
against him. Arrington buttresses his argument by pointing out
that Everett has similarly expressed his belief that the final
customer complaint, involving Prickle, was not “objectively”
investigated.7 Moreover, Arrington and Everett dispute SW Bell’s
version of the Prickle incident, asserting that the customer was
mainly upset that Arrington did not complete the job, which they
believe was caused by his ineligibility to work overtime. Yet,
the summary-judgment record contains admissions from both
Arrington and Everett that Arrington did not use an official SW
Bell code when he filed the paperwork regarding his inability to
complete the Prickle job, although neither thinks that this
7
Everett did not claim to have personal knowledge that
the other customer complaints lodged against Arrington were
improperly investigated.
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“offense” was serious.
Viewed in its entirety, Arrington’s evidence of pretext and
retaliatory treatment is insufficient to permit a reasonable jury
to conclude that Arrington would not have been terminated “but
for” his filing of an EEOC complaint in 1996. Arrington fails to
identify any similarly situated employees (i.e., those with a
history of numerous customer complaints and a similarly low
productivity level) who were neither disciplined nor discharged
for their poor job performance. Arrington believes that he was
not a poor CST, but “[m]erely disagreeing with an employer’s
negative performance assessment is insufficient to show pretext.”
Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir.
2002). Moreover, Arrington’s subjective belief that SW Bell
solicited the customer complaints, without more, is also
insufficient to cast doubt on SW Bell’s proffered reason for his
termination. See Auguster v. Vermilion Parish Sch. Bd., 249 F.3d
400, 403 (5th Cir. 2001) (“This court has consistently held that
an employee’s ‘subjective belief of discrimination’ alone is not
sufficient to warrant judicial relief.” (citations omitted)).8
Therefore, the district court properly held that SW Bell was
8
The one factor in Arrington’s favor is his evidence
from Clay Everett, who also believes that Arrington was treated
unfairly. Yet Everett admitted that Arrington had a history of
poor productivity and customer complaints, and he did not claim
to have personal knowledge that the complaints against Arrington
were either baseless or solicited by Arrington’s supervisors at
SW Bell.
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entitled to summary judgment on Arrington’s retaliation claim.
IV. CONCLUSION
Accordingly, we AFFIRM judgment of the district court.
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