Aldrup v. Caldera

• Citation: 274 F.3d 282
• Decision Date: 10 December 2001
• Docket Number: No. 01-50369,01-50369
• Parties: (5th Cir. 2001) WILLIAM M. ALDRUP, Plaintiff-Appellant, v. LOUIS CALDERA, Secretary of the U.S. Department of Army, Defendant-Appellee. Summary Calendar
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 282

274 F.3d 282 (5th Cir. 2001)

WILLIAM M. ALDRUP, Plaintiff-Appellant, v. LOUIS CALDERA, Secretary of the U.S. Department of Army, Defendant-Appellee.

No. 01-50369

Summary Calendar

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

December 10, 2001

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Western District of Texas

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 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 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 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 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 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 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 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 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...