Edwards v. Wal-Mart Stores Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 9, 2001
• Docket: 00-30390
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 00-30390 Summary Calendar _______________

DAVID EDWARDS,

Plaintiff-Appellant,

VERSUS

WAL-MART STORES, INC.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Western District of Louisiana (99-CV-11) _________________________ January 8, 2001

Before JOLLY, SMITH, and DENNIS, Circuit David Edwards appeals a summary Judges. judgment in a suit against his employer under the Americans with Disabilities Act (“ADA”). JERRY E. SMITH, Circuit Judge:* Finding no reversible error, we affirm.

I. Edwards, who can neither hear nor speak * but can communicate through sign language, Pursuant to 5TH CIR. R. 47.5, the court has finger spelling, and written notes, worked as a determined that this opinion should not be merchandise stocker for Wal-Mart Stores, Inc. published and is not precedent except under the limited circumstances set forth in 5TH CIR. (“Wal-Mart”). He has a high school R. 47.5.4. equivalency diploma from the Louisiana School for the Deaf and a degree from a junior He further suggested that a co-worker had re- college. He worked at Wal-Mart for four ceived permission to drink a damaged years and held a second job at Pizza Hut for beverage without discipline. Edwards did not three years using these limited communication see the videotape, because company policy skills. forbade it.

Edwards’s managers at Wal-Mart learned II. some sign language, and the assistant manager Edwards sued for violation of the ADA for carried a notepad for communicating with him. failure to provide him with reasonable Edwards never asked for or required a accommodations for his disability and by certified interpreter; although he had no discharging him because of his disability. The difficulty performing assigned tasks, he district court granted summary judgment for occasionally received reprimands for sleeping Wal-Mart on the basis that Edwards had failed past his break. to make any showing of discrimination.

Wal-Mart terminated Edwards for stealing III. a root beer from the stock room. A co-worker Summary judgment is appropriate “if the reported that Edwards had removed a can of pleadings, depositions, answers to root beer from the inventory pallet, opened the interrogatories, and admissions on file, can, and took a drink. The night shift manager together with the affidavits, if any,” when reviewed a videotape that allegedly confirmed viewed in the light most favorable to the the story. She then went to the receiving area nonmoving party, “show that there is no and found the open root beer but no other genuine issue as to any material fact and that beverage cans. She reported the incident to the moving party is entitled to judgment as a the assistant manager, who reviewed the vid- matter of law.” FED. R. CIV. P. 56(c). 1 We eotape and interviewed the worker who ini- review a summary judgment de novo, using the tially had reported the theft. same standards as did the district court. Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621 The assistant manager met with Edwards, (5th Cir. 2000). We also review de novo the discussed the incident, and terminated him, in district court’s interpretation of the ADA. accordance with company policy, for Lara v. Cinemark USA, Inc., 207 F.3d 783, unauthorized removal of property. At that 786 (5th Cir.), cert. denied, 121 S. Ct. 341 meeting, Edwards communicated with his (2000). superiors in his usual fashionSSthrough finger spelling, sign language, and written notes. A IV. co-worker who knew some sign language Edwards contends the court erred in assisted Edwards. deciding that Wal-Mart had no obligation to

Edwards first denied the incident, then tried to explain that he had purchased his own drink, a 7-Up. He said he had been ill that night and had taken medication; if he had tak- en a root beer, then he had made a mistake. 1 See also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

2 provide an interpreter.2 The ADA requires Edwards contends that when the employer e mp lo ye r s t o m a k e r e a s o n a b l e knows the employee has a disability, the em- accommodations for a qualified individual with ployer should initiate an interactive process to a disability, defined as a person “who, with or develop a reasonable accommodation. without reasonable accommodation, can Although the employer does have a good faith perform the essential functions of the obligation to engage in this process, the employment position . . . .” 42 U.S.C. employer must have adequate notice that the § 12111(8). The ADA recognizes “the employee needs additional assistance.5 An em- provision of qualified readers or interpreters” ployer “should do what it can to help” when an as a reasonable accommodation. Id. § “employee may need an accommodation but 12111(9)(B). doesn’t know how to ask for it,” Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, Edwards, however, did not ask for a 1285 (7th Cir. 1996), but even in that case, the certified interpreter.3 “In general . . . it is the employee had his doctor send a letter to his responsibility of the individual with the employer requesting an accommodation. Id. disability to inform the employer that an Thus, an employer need not divine the needs accommodation is needed. . . . If the of the employee absent any affirmative signal employee fails to request an accommodation, from that employee.6 the employer cannot be held liable for failing to provide one.” Taylor v. Principal Fin. Neither party suggests that Edwards could Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996) not communicate to Wal-Mart that he desired (quoting 29 C.F.R. § 1630.9, App. (1995)).4 4 (...continued) accommodation.”); Burch v. Coca-Cola Co., 119 2 Edwards also contends that Wal-Mart’s F.3d 305, 319-20 (5th Cir. 1997) (holding that refusal to show him the video constituted a failure employee’s claim that employer had denied a rea- to make a reasonable accommodation. He did not sonable accommodation was not actionable be- raise this claim before the district court; thus, he cause he had not requested an accommodation has waived it. See Abbott v. Equity Group, Inc., before termination). 2 F.3d 613, 627 n.50 (5th Cir. 1993); Jernigan v. 5 Collins, 980 F.2d 292, 297 n.1 (5th Cir. 1992). See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313 (3d Cir. 1999) (noting that “he em- 3 Although Edwards stated that he needed an ployer must know of both the disability and the interpreter for “emergency situations” such as store employee’s desire for accommodations”) meetings, a co-worker who knew sign language (emphasis added). would interpret for him, or the assistant manager 6 would write notes to him about these meetings. Indeed, Loulseged further distinguishes Bulte- Edwards had this assistance at the termination meyer by noting that the employee in that case had meeting and admitted that he had not requested a a mental disability. That court noted that the certified interpreter for that meeting. mental disability may affect the employee’s ability to understand that he needs an accommodation but 4 See also Loulseged v. Akzo Nobel, Inc., 178 that “[w]hen, as here, an employee’s disability is F.3d 731, 736 & n.4 (5th Cir. 1999) (“According- purely physical, the employee will generally be in ly, the burden is on the employee to request an the best position to determine her own needs and (continued...) capacities.” Loulseged, 178 F.3d at 736 n.5.

3 a certified interpreter. Wal-Mart’s finding that he had made no prima facie case management recognized the need for that Wal-Mart discharged him because of his interpretive help and brought in an employee disability. The ADA prohibits employers from with rudimentary sign language skills who discriminating “against a qualified individual usually interpreted for Edwards at company with a disability” on the basis of that disability. meetings. The manager additionally used 42 U.S.C. § 12112(a). We have recognized written notes, just as he had done in the past, two methods of establishing a prima facie case to explain to Edwards that he was being of discrimination under the ADA: One uses terminated. The fact that Edwards used these direct evidence, the other indirect. written notes to tell the manager his side of the story indicates that he had the ability to A. request additional assistance had he needed it.7 To establish a prima facie case via direct evidence, Edwards “must show: (1) that he has a disability; (2) that he was qualified for the Furthermore, Edwards has not established job; and (3) that he was subject to an adverse that he ever before had requested employment decision because of his disability.” accommodations. Even though he believed he Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. had asked for an interpreter for company 1999). The parties do not contest that meetings on several occasions, he could not Edwards satisfies each of these requirements remember any details to substantiate that or that he has not introduced any direct assertion. “A wrongful termination claim evidence to connect that employment decision under the ADA is not properly analyzed under to intentional discrimination on the basis of his a reasonable accommodation theory unless an disability; thus, he has not made out a prima employer is shown to have terminated a facie case under the third prong of the test. qualified individual with a disability in order to avoid accommodating that employee’s B. impairments at the workplace.” Burch, 119 A plaintiff may use the indirect method of F.3d at 314. Edwards has not even hinted that proof set forth in McDonnell Douglas Corp. v. Wal-Mart discharged him to avoid providing Green, 411 U.S. 792, 802-05 (1973). Daigle reasonable accommodations. Therefore, the v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th district court correctly concluded that Wal- Cir. 1995). Edwards must show that he Mart had no duty under the ADA to provide a (1) suffers from a disability; (2) is qualified for certified interpreter at the termination meeting. the job; (3) was subject to an adverse em- ployment action; and (4) was replaced by a V. non-disabled person or was treated less Edwards avers that the court erred in favorably than were non-disabled employees. Id. The parties do not dispute that Edwards was replaced by a hearing, speaking individual, 7 Edwards notes that the night shift manager so he has made a prima facie case under asked the assistant manager to bring in an McDonnell Douglas. interpreter who was fluent in sign language at the termination meeting. Because Edwards must Having done so, Edwards is entitled to a affirmatively indicate a need for additional presumption of discrimination that the assistance, this fact has no relevance.

4 employer must rebut by “articulat[ing] some then admitted he mistook the root beer for his legitimate, non-discriminatory reason” for the own 7-Up. Although he suggests that Wal- employment action. McDonnell Douglas, 411 Mart’s refusal to allow him to view the U.S. at 802. The employer need not prove the videotape evidences a discriminatory intent, legitimate reason; it need only put forth Wal-Mart policy prohibits any employee from evidence; the burden of proving intentional viewing such a videotape. discrimination “remains at all times with the plaintiff.” St. Mary’s Honor Ctr. v. Hicks, 509 Edwards asks us to believe that the fact that U.S. 502, 507 (1993) (quoting Texas Dep’t of Wal-Mart lost the videotape between his ter- Cmty. Affairs v. Burdine, 450 U.S. 248, 253 mination and his lawsuit suggests pretext, but (1981)). multiple witnesses testified to the contents of the videotape.8 Edwards portrays the slight Wal-Mart has produced evidence that it variations in the testimony of these witnesses terminated Edwards for violating company as additional evidence of pretext, but each wit- policy, so “the presumption raised by the pri- ness stated that Edwards took a can of soda ma facie case is rebutted and drops from the from the pallet and drank the contents. case.” Id. (quoting Burdine, 450 U.S. at 255 & n.10). At this point, Edwards must show Despite the alleged evidence of that the pro ffered reason is pretextual or un- discrimination, Edwards makes no reference to worthy of credence. Burdine, 450 U.S.at 253, any negative or offensive comments related to 256. To show pretext, he may use evidence his disability, to a pattern of discrimination establishing his prima facie case, Reeves v. against the disabled at the store, or indeed to Sanderson Plumbing Prods., 530 U.S. 133, any other negative encounter at Wal-Mart ___, 120 S. Ct. 2097, 2106 (2000), but he still related to his disability in the four years he must prove that Wal-Mart intended to worked there. Moreover, Edwards discriminate on the basis of his disability. undermines his own argument by testifying that management learned some sign language Edwards has established no nexus between to communicate with him. He admitted that termination and disability. He stated in the assistant manager who terminated him deposition that he did not know whether the supported the deaf community. Furthermore, company discriminated against him based on the same manager who terminated him also his disability, on his race, or both. He further hired him; thus, Wal-Mart may receive the admits that his manager would not terminate him absent plain evidence that he had stolen company property, and he has not produced 8 any evidence to contradict the testimony of the Edwards argues for the first time on appeal that the loss of the videotape constitutes spoilation eyewitnesses and those who viewed the of the evidence. Because he did not raise this point videotape that he committed a terminable before the district court, he has waived it. See, offense under a company policy applicable to e.g., Estate of Martineau v. Arco Chem. Co., 203 all employees. F.3d 904, 913 (5th Cir. 2000) (citing Vaughner v. Pulito, 804 F.2d 873, 877 (5th Cir. 1986) (noting Indeed, Edwards’s testi mony was that if a party fails to assert a legal reason why contradictory: He first denied the incident, summary judgment should not be granted, he waives the right to assert it on appeal)).

5 benefit of an inferenceSSthe “same actor” single shred of evidence to support Edwards’ inferenceSSthat discrimination did not claim that Wal-Mart terminated him because of motivate the termination. See Brown v. CSC his disabilities. There is simply no evidence of Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996). discriminatory intent or motive on the part of Wal-Mart in this case.” Therefore, Edwards has failed to prove in- tentional discrimination, even when all the AFFIRMED. facts are construed in his favor. A district court may properly award summary judgment when

a party . . . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322- 23 (1986).

Edwards has not presented any issue of fact material to the question of intentional discrimination. He disputes only Wal-Mart’s evidence that he stoleSSa fact more relevant to whether Wal-Mart terminated him without sufficient proof than to intentional dis- crimination. Edwards perhaps had more difficulty communicating his side of the story than would a hearing and speaking person, but he has offered no evidence that Wal-Mart treated him differently from any other employee.

In sum, Edwards has not connected the ter- mination to an intent to discriminate on the ba- sis of disability. As the district court perceptively stated, “this court finds not a

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