Teffera v. North Texas Tollway Authority

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 22, 2004
Charles R. Fulbruge III
Clerk
04-10666
Summary Calendar
SOLOMON TEFFERA,
Plaintiff-Appellant,
versus
NORTH TEXAS TOLLWAY AUTHORITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(3:02-CV-1525-K)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Solomon Teffera appeals the summary judgment awarded his
employer, North Texas Toll Authority (NTTA). Teffera claimed NTTA
violated Title VII of the Civil Rights Act of 1964, as amended, 29
U.S.C. § 621 et seq. (Title VII), the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (ADA), and 42 U.S.C. § 1981.
Teffera worked as a vault handler for NTTA in the toll
collection department. NTTA promulgated employee policies and
procedures in its employee manual, and Teffera signed for, and
*
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this opinion should not be published and is not precedent except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.
received, a copy of it. The unauthorized leave without pay policy
(the Policy), as published in the employee manual, stated: an
employee in the toll department would be dismissed if he violated
the Policy three times in a 12-month period. Teffera violated the
Policy twice and received two warnings; he was fired upon his third
violation in a year.
Teffera, a black male of Ethiopian origin, sued NTTA for
racial and national origin discrimination under Title VII, racial
discrimination in the workplace under § 1981, and discrimination in
violation of the ADA. In granting summary judgment, the district
court held: Teffera could not establish a prima facie case of
discrimination under Title VII because he did not show his
termination was as a result of his race or national origin; no
adverse actions against Teffera amounted to actionable
discrimination under Title VII; he could not show he was disabled
for ADA purposes, or that NTTA fired him because it regarded him as
disabled; Teffera did not establish that he suffered an adverse
employment action based on a disability; he could not establish a
prima facie case for § 1981 discrimination because those elements
are identical to the prima facie elements of a Title VII claim,
which he did not successfully present; and there was no evidence
NTTA terminated Teffera in retaliation for his seeking reasonable
alternate accommodations.
2
We review a summary judgment de novo, applying the same
standards as the district court. Mayo v. Hartford Life Ins. Co.,
354 F.3d 400, 403 (5th Cir. 2004). Summary judgment is proper when
“there is no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of law”. FED.
R. CIV. P. 56(c). The evidence is viewed in the light most
favorable to the nonmovant. E.g., Coleman v. Houston Indep. Sch.
Dist., 113 F.3d 528, 533 (5th Cir. 1997).
Teffera presents four issues: (1) his deposition testimony
offered by NTTA as summary judgment evidence is insufficient for
that purpose; (2) the district court erroneously found he did not
properly bring his Title VII retaliation claim to the notice of the
Equal Employment Opportunity Commission (EEOC); (3) the district
court improperly dismissed that retaliation claim because NTTA’s
reasons for firing him were mere pretexts for masking retaliation,
and; (4) the district court should not have dismissed his ADA
retaliation claim because he was terminated in retaliation for
requesting a reasonable accommodation. (Teffera does not contest
the other bases for the summary judgment. Issues not raised or
argued on appeal are waived. E.g., United Paperworkers Int'l.
Union, AFL-CIO, CLC v. Champion Int'l. Corp., 908 F.2d 1252 (5th
Cir. 1990).)
Teffera’s contention that his deposition was defective and
therefore cannot serve as summary judgment evidence is meritless.
3
The NTTA began to depose Teffera in May 2003 and, at the end of the
day, recessed the deposition until that September. The day before
the deposition was to resume, NTTA informed Teffera’s attorney it
wished not to continue the deposition. As he did in district
court, Teffera contends this cancellation violated FED. R. CIV. P.
30(c) because it prevented his lawyer from examining him and
clarifying key components of this case. Although other courts have
found the unilateral termination of a deposition by the lawyer of
the party being deposed may violate Rule 30(c), see Johnson v.
Wayne Manor Apartments, 152 F.R.D. 56 (E.D. Pa. 1993), such
termination by the party deposing the witness is within that
party’s discretion and does not render the deposition testimony
defective. Needless to say, Teffera’s lawyer could have requested
the deposition continue, but did not.
The rest of Teffera’s issues on appeal concern his retaliation
claims under Title VII and the ADA. Teffera first claims the
district court erred in finding he did not properly present Title
VII retaliation claims to the EEOC. “[T]he filing of a charge of
discrimination with the EEOC is a condition precedent to the
bringing of a civil action under Title VII.” Sanchez v. Standard
Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970). Although Teffera
checked “retaliation” on the pre-charge EEOC form, he did not do so
on the EEOC charge; there, he referenced only discrimination
because of national origin. The district court correctly dismissed
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Teffera’s Title VII retaliation claim for not exhausting it with
the EEOC.
Teffera’s two ADA retaliation claims fail because he presented
no supporting evidence in district court. Teffera charges NTTA
with falsifying facts supporting the citations they issued him
under the Policy. He claims there is a genuine issue of material
fact on whether NTTA’s reasons for firing him were mere pretexts
for retaliation for his requesting a transfer to another plaza, to
work under a different supervisor.
To establish a prima facie case of retaliation, a plaintiff
must prove: (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. E.g., Seaman
v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999). Assuming,
arguendo, that merely filing a form requesting accommodation is
protected activity under the ADA, Teffera’s “pretext” charges
nevertheless fail for lack of a causal connection between such
protected activity and his termination.
The first two citations against Teffera were filed on 25 July
and 29 August 2000, before he submitted a 15 January 2001 letter
requesting a transfer. The fact that the third citation, which
triggered his termination under the Policy, was issued after his
transfer request does not create a material fact issue on whether
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NTTA fired him in retaliation for this request. Each of the
citations against Teffera is supported by the Policy; and, while on
the whole they may evince NTTA’s disinclination to exercise
discretion in Teffera’s favor, this does not rise to the level of
retaliation.
AFFIRMED
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