Lambus v. City of Jackson Fire

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
Summary Calendar
Case No. 02-60413
__________________________
GEORGE O LAMBUS
Plaintiff-Appellant,
v.
CITY OF JACKSON FIRE DEPARTMENT
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(3:01-CV-524-LN)
___________________________________________________
November 13, 2002
Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.
PER CURIAM*:
Plaintiff-appellant George O. Lambus challenges the district
court’s ruling granting the motion for summary judgment by the
Defendant City of Jackson Fire Department (“JFD”). For the reasons
stated below, 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this opinion should not be published and is not precedent except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.
1
FACTUAL PREDICATE
Lambus claims JFD discriminated against him because of his age
(fifty-three) and his alleged disability (diabetes, hypertension,
and back problems) and unlawfully retaliated against him for filing
charges with the EEOC in violation of both the ADEA and the ADA.
The alleged facts giving rise to his claims of discrimination
originate from his time with the JFD as a firefighter recruit
trainee in August and September 2000.2
On March 27, 2000, the JFD allegedly rejected Lambus’s
application for the position of firefighter.3 Allegedly in
response, on August 8, 2000, Lambus filed a charge with the EEOC,
alleging age discrimination. Lambus was hired as a firefighter
recruit trainee by the JFD shortly thereafter. Following an
altercation between Lambus and an instructor at the JFD Training
Academy, the JFD Chief, Raymond J. McNulty, formally terminated
2
The district court stated that it was “unclear” whether
Lambus was also claiming that he was subjected to a hostile work
environment. As Lambus does not urge this point on appeal, the
issue is not before this court. See Melton v. Teachers Ins. &
Annuity Ass’n of Am., 114 F.3d 557, 561 (5th Cir. 1997) (issues
not raised in the statement of the issues or body of the brief
are waived and are not considered on appeal); Carmon v. Lubrizol
Corp., 17 F.3d 791, 794 (5th Cir. 1994) (issues not raised on
appeal are waived).
3
On this point, the JFD claims to have never rejected
Lambus’s application. Rather, it alleges that all of Lambus’s
paperwork had not yet been received by the JFD to either accept
or reject him into its training academy. It alleges that Lambus
read in the newspaper that a new class of recruits was to begin
training at the Academy and because he had not heard from JFD
yet, assumed his application had been rejected.
2
Lambus’s employment with the JFD. The termination letter (dated
September 26, 2000) attributes the termination to Lambus’s failure
to master relevant firefighting skills and to acts of
insubordination. On October 16, 2000, Lambus filed an amended
charge with the EEOC, alleging unlawful retaliation. He thereafter
received a right to sue letter from the EEOC and subsequently filed
this lawsuit.
STANDARD OF REVIEW
This court reviews a grant of summary judgment de novo,
applying the same standards as the district court. Daniels v. City
of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 122 S.
Ct. 347 (2001). Summary judgment should be granted if there is no
genuine issue of material fact for trial and the moving party is
entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In
determining if there is a genuine issue of material fact, the court
reviews the evidence in the light most favorable to the non-moving
party. Daniels, 246 F.3d at 502. However, when the non-moving
party bears the burden of proof on a claim, the moving party may
obtain summary judgment without providing evidence that negates the
non-moving party’s claim. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-25 (1986). Rather, the moving party need only highlight
the absence of evidence in support of the non-moving party’s claim.
See id.ANALYSIS
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A. ADEA
The Age Discrimination in Employment Act (“ADEA”) states that
it is unlawful “to discharge any individual or otherwise
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment
because of such individual’s age.” 29 U.S.C. § 623(a)(1) (2000).
To establish a prima facie case of discrimination under the ADEA,
Lambus is required to show that (1) he is a member of a protected
class – those persons over the age of forty, (2) he is qualified
for the position, (3) he suffered an adverse employment action, and
(4) he was either replaced by someone outside of the protected
class, replaced by someone younger, or otherwise discharged because
of age. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
142 (2000); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 232-33
(5th Cir. 2000); Bauer v. Albemarle, 169 F.3d 962, 968 (5th Cir.
1999).
In its Memorandum Opinion, the district court stated that,
While it is undisputed that Lambus was in a protected
class and was subjected to an adverse employment
decision, he has submitted no evidence, in response to
the JFD’s motion, that he was qualified to be a fireman.
By contrast, the JFD has submitted affidavits from Deputy
Chief C.E. Graham and Instructor Stephen Parkman in which
both state that Lambus was ‘unable to perform certain
tasks required by the Fire Academy’s training courses.’”
Rec. at 5 (emphasis added). We concur with the district court’s
finding that no material fact issue persists as to whether Lambus
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was qualified to graduate from the JFD Training Academy. The
overwhelming and uncontroverted evidence presented both to the
district court and to this court demonstrates that, although Lambus
may have met the minimum qualifications to be admitted to the
Training Academy, he did not possess the minimum qualifications,
abilities or attitude to complete the Training Academy course work
in order to become a firefighter.4
Further, even assuming that Lambus was qualified for the
position of firefighter, the record demonstrates that JFD has
proffered a legitimate, non-discriminatory justification for his
termination – undisputed acts of insubordination by Lambus. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)
4
Indeed, conclusory allegations represent the sum total
of Lambus’s evidence. For example, in response to JFD’s motion
for summary judgment, Lambus simply states that,
The Court dismissed my motion for a summary judgement
[sic] and the Defendant’s should be dismissed for the
same reasons. On April 2, 2002, before Judge Nicols, I
offered to settle this case . . . the Defendant should
have taken it. Theresa Kiely at the Clarion-Ledger
will reveal plenty about my case before a Jury!
In addition to the conclusory-based allegations and mere threats
of proof, Lambus submits a complaint against the Jackson Area
Office of the EEOC for advising him to drop his claims in this
case, in which he states, “The Jackson Area Office is populated
by middle-class, incompetent Negroes who want to sit on their
asses and draw a salary without working for it.” This type of
evidence is plainly unrelated to the issue before the district
court and will not forestall summary dismissal of Lambus’s
claims. See, e.g., Celotex Corp., 477 U.S. at 328 (White, J.,
concurring) (mere conclusory allegations are not competent
summary judgment evidence); Macklin v. City of New Orleans, 293
F.3d 237, 241 (5th Cir. 2002); Eason v. Thaler, 73 F.3d 1322,
1325 (5th Cir. 1996).
5
(discussing the burden analysis under Title VII); Russell, 235 F.3d
at 222 (holding that the McDonnell Douglas analysis is applicable
to the ADEA); Bauer, 169 F.3d at 966 (“The same evidentiary
procedure for allocating burdens of production and proof applies to
discrimination claims under both [Title VII and the ADEA]”). The
record on this point is clear. The evidence demonstrates that
Lambus acted to instructions by his training instructor in a manner
perceived to be defiant by his superiors.5 See Schackelford v.
Deloitte & Touche, L.L.P., 190 F.3d 398, 408-09 (5th Cir. 1999)
(the relevant summary judgment issue is whether “[JFD’s] perception
of [Lambus’s] performance, accurate or not, was the real reason for
his termination”). JFD’s position on this point is supported by
contemporaneous records of Lambus’s acts of alleged insubordination
and deficient performance by other instructors. See Evans v. City
of Houston, 246 F.3d 344, 355 (5th Cir. 2001) (looking to whether
5
Deputy Chief Charles Graham described the incident to
Chief Raymond McNulty in a letter dated September 20, 2000,
I am writing this letter in reference to an incident
reported to me which occurred today around 10:00 a.m.
Recruit Lambus was given an order by Instructor Parkman
to stop running laps and walk it out. He did not stop
running, held up two fingers indicating he had two more
laps to go. After a brief altercation between Recruit
Lambus and Instructor Parkman, Recruit Lambus then
proceeded to walk as instructed. This type of behavior
undermines the training program and disrupts the esprit
de corps. This incident clearly shows disrespect by
the recruit.
In his affidavit, Lambus himself further states that when the
instructor became angry with him, Lambus demanded that the
instructor refer to him as “Mr. Lambus” or “Recruit Lambus.”
6
there is “contemporaneous evidence in the record of any
disciplinary action” taken against the employee). As Lambus failed
at the district court to rebut this evidence with any response
worthy of note, the district court’s finding that no genuine fact
issues exist on this claim is supported by the record.
B. ADA
To establish a prima facie case of discrimination under the
American with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a)
(2000), Lambus must demonstrate that “[he] is a qualified
individual with a disability, and that the negative employment
action occurred because of the disability.” Sherrod v. Am.
Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998). A “qualified
individual with a disability” is defined in the ADA as someone who
has a disability but who, “with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42
U.S.C. § 12111; Giles v. Gen. Elec. Co., 245 F.3d 474, 483 (5th
Cir. 2001).
As discussed in reference to Lambus’s ADEA claim, the summary
judgment evidence indicates that Lambus failed to produce any
evidence that he was qualified for the position of firefighter.
Moreover, as found by the district court, Lambus produced no
evidence to show that he was “disabled” within the meaning of the
ADA – that is, that he suffered from an “impairment that prevents
or severely restricts” him from “doing activities that are of
7
central importance to most people’s daily lives.” Toyota Motor
Mfg. v. Williams, 122 S. Ct. 681, 691 (2002). Although Lambus
claims to have suffered from diabetes, hypertension, and back
problems during his employment with JFD, he was rated by Dr. Howard
T. Katz as having “0% impairment to the body as a whole.”6
Further, his response to JFD’s motion for summary judgment did not
point the district court to any major life activity that was
severely restricted or impaired by his alleged disabilities. In
these circumstances, support exists for the district court’s
finding that Lambus cannot meet the ADA’s test for disability
because the evidence does not reveal that his “impairment’s impact
[is] permanent or long term.” Toyota Motor Mfg., 122 S. Ct. At
691. Thus, there is no genuine issue for a jury to decide on
Lambus’s ADA claim.
C. Retaliation
To establish a prima facie retaliation claim under the ADA and
ADEA, Plaintiff must show that, (1) he is qualified for the job in
question, (2) he engaged in a protected activity, (3) there was an
adverse employment action, and (4) a causal link existed between
6
Lambus raises arguments on appeal that his alleged
chest pains, irregular heart rate, and high blood pressure also
constitute disabilities within the meaning of the ADA. As these
arguments were not raised before the district court, they were
waived by Lambus. Stokes v. Emerson Elec. Co., 217 F.3d 353, 358
n. 19 (5th Cir. 2000) (holding that arguments not raised in the
district court cannot be asserted for the first time on appeal);
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“As a
general rule, this Court does not review issues raised for the
first time on appeal.”).
8
the protected activity and the adverse employment action.
Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 260 (5th Cir.
2001) (“We have never expressly made qualification a prima facie
element of an ADEA retaliation claim, but today we decide that such
an element is necessary . . . [b]ecause, in regard to other types
of discrimination claims . . . it would be illogical not to require
[it.]”). The summary judgment evidence demonstrates no genuine
factual dispute as to whether Lambus was qualified for the position
of firefighter because Lambus simply did not produce any competent
summary judgment evidence to counter JFD’s evidence that he was not
qualified. His retaliation claims thus fail.
CONCLUSION
The judgment of the district court is AFFIRMED. All
outstanding motions are DENIED as moot.
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