           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 18, 2009

                                     No. 09-20231                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ARCHIE WILLIAMS,

                                                   Plaintiff-Appellant,
v.

AT&T INC., FORMERLY SBC COMMUNICATIONS INC.,
SOUTHWESTERN BELL TELEPHONE, L.P., NOW KNOWN AS
SOUTHWESTERN BELL TELEPHONE COMPANY, MICHAEL D. TYSON,
and COMMUNICATION WORKERS OF AMERICA, AFL-CIO,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                       for the Southern District of Texas;
                              USDC. No. 07-CV-559


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Archie Williams appeals the district court’s grant of the
Defendant-Appellees’ motion to dismiss and the Defendant-Appellees’ motion for
summary judgment for claims resulting from what he alleges was an unlawful
termination of his employment. Finding no error in the district court’s grant of


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 09-20231

judgment in favor of the Defendant-Appellees’ on all of the Plaintiff-Appellant’s
claims, we AFFIRM.
       I.     BACKGROUND
       Williams began working for Southwestern Bell Telephone Company
(“SWBT”) as a communications technician 1 in August 1997.                        Williams’s
performance evaluations for 2002, 2003, and 2004 rated his job performance as
“Meets Expectations.” On October 21, 2005, Williams received a performance
notice from his supervisor, Malcolm Clark, notifying him of deficiencies in his
work performance, time reporting, and conduct. Williams’s 2005 performance
evaluation rated his job performance as “Below Expectations.” On January 10,
2006, Clark placed Williams on Decision Making Leave (“DML”) for failing to
improve. Upon returning to work, Williams stated that he wished to continue
working for SWBT. Clark told Williams that he needed to achieve and sustain
required performance levels in all aspects of his job to remain employed. The
discipline record reflects that Williams’s “original Performance Notice in October
2005 was reduced to an employee discussion, and his Decision Making Leave
[DML] was reduced to a Performance Notice in good faith along with additional
training to provide Mr. Williams with multiple chances to improve and sustain
an overall good measurement of work.”
       Williams’s discipline record further reflects that between January 2006
and July 2006, Williams continued to have problems with his performance,
conduct, and time-keeping. The record also includes a report indicating that he


       1
        The essential functions of a communications technician include moving and lifting
material weighing up to seventy-five pounds; climbing ladders and poles, working aloft or in
manholes, and working for extended periods in such positions as kneeling, stooping, crouching,
and crawling.

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                                  No. 09-20231

worked un-authorized overtime and charged several hours of “self-generated
work” that was of no use to his employer. Michael D. Tyson became Williams’s
supervisor on May 16, 2006. On June 1, 2006, Tyson gave Williams a written
notice of the deficiencies in his work, complete with examples of his poor
performance and a warning that his employment would be terminated in the
event that his performance did not improve.
      After several other infractions, for which Williams repeatedly received
notice, Williams was again placed on DML on June 27, 2006. At that time,
Tyson met with Williams to discuss these issues.         A union steward from
Communication Workers of America (“CWA”) was present at the meeting.
During this meeting, Williams did not mention a leg injury affecting his ability
to perform his job. Williams returned from this DML on June 29, 2006.
      When he filed this lawsuit in the district court, Williams alleged that he
sprained his left leg while on the job in 2006. The record is unclear, however, as
to precisely when his leg injury occurred and when he reported it to SWBT since
Williams himself has given numerous different dates at different times. In his
amended complaint, Williams alleged that he hurt his leg on March 6, 2006, and
reported it to his then-manager, Daniel Todd, on March 23, 2006. Yet in an
interview with SWBT’s workers’ compensation claims adjuster, Williams stated
that his injury occurred on June 20, 2006, at approximately 10:00 a.m. In his
EEOC complaint, Williams asserted that he injured his leg on June 7, 2006. And
when he testified before the Workers’ Compensation Division, Williams stated
that his left leg injury occurred in July 2006. In response to the Defendant-
Appellants’ discovery requests, Williams stated that the injury occurred on June
29, 2006. Yet in his amended complaint, Williams alleges that he first reported


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                                  No. 09-20231

his leg injury to Tyson, his immediate supervisor, on June 20, 2006. Thus, it is
unclear, at best, when Williams suffered his left leg injury and when he reported
this injury to his supervisor.
      On July 5 and July 6, 2006, Williams again worked unauthorized
overtime. As a result, on July 7, 2006, Tyson gave Williams a final warning that
SWBT would no longer tolerate his poor performance, unauthorized overtime,
and failure to complete tasks as a result of his repeatedly creating self-generated
work. Williams alleges that it was on this date (July 7, 2006) that he requested
an accommodation for his injury and Family Medical Leave Act (“FMLA”) leave.
Three days later, on July 10, 2006, Williams violated company policy, and as a
result, an entire school district lost all of its telecommunication services for
nearly twenty-four hours.
      When Tyson learned what Williams had done, he suspended him for
violating company policy and the terms of his June 27, 2006 DML. Following the
July 27th suspension, SWBT’s disability and workers’ compensation carrier
denied Williams’s workers’ compensation claim, stating as its reason for denial
the fact that Williams had provided multiple dates “as the date of the injury with
the same mechanism of injury. Claimant failed to timely report an injury within
30 days of the injury.” The carrier also disputed that Williams suffered from a
disability.
      On August 7, 2006, SWBT terminated Williams’s employment. SWBT
asserts that Williams was fired for “his continued unsatisfactory job
performance, poor attendance, the morale problems his misconduct caused
in the work group[,] and outright insubordination in his failure to follow
directions despite being told repeatedly that his job was in jeopardy.” Williams


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                                       No. 09-20231

contends that he was fired as a result of his left leg injury/disability and because
he filed a workers’ compensation claim.              He also asserts that any poor
performance on his part is solely attributable to his left leg injury and SWBT’s
failure    to   provide   him   with    reasonable    accommodations–although    he
simultaneously acknowledges that his performance problems began in 2005, well
before the ambiguous date of his left leg injury.
      On July 17, 2006, CWA filed a grievance on Williams’s behalf from the
July 11 “Suspension and/or Termination . . . without just cause . . . .” As a
result, the grievance went through the process outlined in the collective
bargaining agreement. On January 5, 2007, SWBT denied the grievance. CWA
declined to proceed with Williams’s claim to arbitration.
      On August 21, 2006, Williams filed a Charge of Discrimination with the
EEOC, alleging disability discrimination. Williams did not, however, assert any
claims of retaliation in his EEOC charge. On November 14, 2006, the EEOC
issued a “Dismissal and Notice of Rights,” explaining that, based on its
investigation, the EEOC was “unable to conclude that the information obtained
establishes violations of the statutes.” Williams filed this lawsuit on February
9, 2007.
      On July 20, 2007, the district granted the Defendant-Appellees’ motion to
dismiss and dismissed the Plaintiff-Appellant’s retaliation claims under the
FMLA, 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act,
(“ADA”), 42 U.S.C. § 12101 et seq., for failure to exhaust administrative
remedies.
      On April 6, 2009, the district court granted the Defendant-Appellees’
motion for summary judgment and entered judgment, with prejudice, on all of


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                                  No. 09-20231

the Plaintiff-Appellant’s remaining claims, including his discrimination claims
under the FMLA and the ADA. The district court also granted judgment in favor
of the Defendant-Appellees on the Plaintiff-Appellant’s claims that the Union
breached its duty of fair representation and that SWBT breached the collective
bargaining agreement.
       The Plaintiff-Appellant timely filed the instant appeal. On appeal, the
Plaintiff-Appellant raises thirteen points of error. We address each in turn.
      II.     STANDARD OF REVIEW
      “We review a Rule 12(b)(6) dismissal de novo, accepting all well-pleaded
facts as true and reviewed in the light most favorable to the plaintiff.” Sanders-
Burns v. City of Plano, 578 F.3d 279, 284 (5th Cir. 2009) (citations omitted). We
review “a district court’s grant of summary judgment de novo.” Leasehold
Expense Recovery, Inc. v. Mothers Work, Inc., 331 F.3d 452, 455 (5th Cir. 2003)
(citation omitted).   “Summary judgment is appropriate, when, viewing the
evidence in the light most favorable to the nonmoving party, the record reflects
that no genuine issue of any material fact exists.” Id. (citing Celotex v. Corp. v.
Catrett, 477 U.S. 317, 322-324 (1986)).
      Williams is proceeding pro se. We apply “less stringent standards to
parties proceeding pro se than to parties represented by counsel and liberally
construe the briefs of pro se litigants.” Grant v. Cuellari, 59 F.3d 523, 524 (5th
Cir. 1995).
      III.    ANALYSIS
              A.   ADA Discrimination Claim
      Williams’s first argument on appeal is that the district court erred when
it required him to produce evidence substantiating his claim that he actually


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                                       No. 09-20231

suffered from a disability at the time his employment was terminated.2 Williams
contends that his failure to establish that he suffered from a disability should
not preclude him from succeeding on his discrimination claim against SWBT.
Williams is correct in this summation of the law–in that this Court has
recognized that establishing an actual disability is not necessary to sustain an
action under the ADA if the plaintiff can establish he was “regarded as disabled.”
Rodriguez v. ConAgra Grocery Products Co., 436 F.3d 468, 475 (5th Cir. 2006).3
       In this case, however, summary judgment was awarded in favor of the
Defendant-Appellees because Williams failed to establish that he was “regarded
as disabled.” In dismissing his ADA claim, the district court noted that Williams
failed to produce evidence “that Tyson or anyone at SWBT perceived Williams
as disabled.” The district court correctly noted that in order to succeed on his
claim under the ADA, Williams would have to produce evidence demonstrating
that his employer “entertain[ed] some misperception regarding [Williams] –
either that he has a substantially limiting impairment that he does not have or
the impairment is not so limiting as believed.” Aldrup v. Caldera, 274 F.3d 282,
287 (5th Cir. 2001). Williams failed to do so.
       Because Williams failed to put forth sufficient evidence demonstrating
either that he suffered from a disability, or that he was perceived as disabled,


       2
        In making this argument, Williams concedes that he did not produce sufficient
evidence to demonstrate he suffered from a disability under the ADA.
       3
        Under the ADA, a plaintiff is “regarded as” disabled if he:
      (1) has an impairment which is not substantially limiting but which the
      employer perceives as ... substantially limiting ...; (2) has an impairment which
      is substantially limiting only because of the attitudes of others towards such an
      impairment; or (3) has no impairment at all but is regarded by the employer as
      having a substantially limiting impairment.
Rodriguez, 436 F.3d at 476 (citation omitted).

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                                       No. 09-20231

the district court correctly awarded judgment in favor of the Defendant-
Appellees.4
              B.     ADA and FMLA Retaliation Claims
       In his fourth and fifth issues raised on appeal, Williams argues that the
district court erred in dismissing his retaliation claims under the ADA and the
FMLA.      Although he acknowledges that he did not assert any claims of
retaliation in his EEOC charge, Williams contends that he need not exhaust his
administrative remedies before bringing his retaliation claims in federal district
court. Williams’s characterization of the law, however, is mistaken.
       A plaintiff must exhaust his administrative remedies prior to filing a
retaliation claim, unless the “retaliation claim . . . arise[s] after the filing of the
EEOC charge.” Gupta v. East Tex. State. Univ., 654 F.2d 411, 414 (5th Cir.
1981). Williams claims he was retaliated against as a result of his filing a
workers’ compensation claim.           Williams is not contending that he suffered
retaliation as a result of filing his EEOC charge. Thus, because the alleged acts
of retaliation occurred prior to his filing his EEOC charge, Williams’ failure to
assert his retaliation claims in the EEOC charge now precludes his ability to
assert them in federal district court.


       4
         Because it is clear from the record that the Plaintiff-Appellant did not successfully
establish a prima facie case for a discrimination claim under the ADA, the Court will not
address the Plaintiff-Appellant’s second, third, eleventh, and thirteenth issues raised on
appeal asserting, respectively: (1) that the district court erred in dismissing his ADA claim
because his employer failed to make reasonable accommodations; (2) that the district court
erred in requiring the Plaintiff-Appellant to establish he was disabled on his “ADA
interference claim”; (3) that the district court erred in granting judgment in favor of the
Defendant-Appellees with no proof that they attempted to engage in an “interactive process”;
and (4) that the district court erred in granting judgment in favor of Tyson because Tyson’s
statements in the record constitute evidence of discrimination. Instead, we affirm the district
court’s judgment in favor of the Defendant-Appellees on the aforementioned grounds alone.

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                                       No. 09-20231

       Consequently, we conclude that the district court properly dismissed his
retaliation claims for failure to exhaust administrative remedies.
              C.      FMLA Claim
       In granting summary judgment in favor of the Defendant-Appellees, the
district court concluded that “Williams has not raised a fact issue as to whether
he suffered from a serious health condition as defined by the FMLA.” In his
sixth issue raised on appeal, Williams contends the district court’s conclusion
was in error since it is not necessary for him to establish a “serious health
condition” in order to succeed on an FMLA claim. Williams’s argument is devoid
of any merit.
       In order to succeed on a claim for denial of leave under the FMLA, the
plaintiff must present evidence to establish that he suffers from “a serious
health condition that makes the employee unable to perform the functions of the
position of such employee.” 29 U.S.C.A. § 2612(a)(1)(D). Williams’ failure to put
forth evidence demonstrating he suffers from a “serious health condition” fully
supports the district court’s conclusion that he “did not adduce sufficient
evidence to preclude judgment as a matter of law under the FMLA.” Price v.
Marathon Cheese Corp., 119 F.3d 330, 335 (5th Cir. 1997).5
              D.      Weingarten Claim
       In his seventh issue raised on appeal, Williams argues that the district
court erred in granting judgment in favor of SWBT on his Weingarten claim.


       5
          Because we affirm the district court’s conclusion based on our finding that the
Plaintiff-Appellant failed to put forth sufficient evidence demonstrating he suffered a “serious
health condition,” we do not reach the merits of the Plaintiff-Appellant’s twelfth issue raised
on appeal–arguing that the district court erred in granting the Defendant-Appellees’ motion
for summary judgment with no evidence that they attempted to engage in an “informal
process.” Instead, we affirm the district court on the aforementioned grounds alone.

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                                       No. 09-20231

Williams claims his rights were violated when SWBT moved from the
investigative interview immediately into a disciplinary interview.6
       Weingarten, however, is not violated merely because an employer made a
disciplinary decision before, during, or shortly after an employee interview. This
Court has interpreted an employee’s rights under Weingarten to mean “that an
employee has the right to representation in any interview which he reasonably
believes might result in disciplinary action except when the employer (1) has,
before the interview, reached a decision to discipline the employee, (2) conducts
the interview solely with the purpose of informing the employee of that decision,
and (3) conducts that interview without going beyond that purpose.” Anchortank,
Inc. v. NLRB, 618 F.2d 1153, 1168, n.28 (5th Cir. 1980). Thus, an employee has
no Weingarten right to union representation at a meeting “conducted solely to
inform the employee of, and acting upon, a predetermined disciplinary decision.”
Id. at 1168. We conclude that the district court properly granted summary
judgment in favor of SWBT on Williams’ Weingarten claim.
              E.     TWCA Retaliation Claim
       Williams also argues, in his eighth issue raised on appeal, that the district
court erred when it granted summary judgment in favor of SWBT and Tyson on
his claims for retaliation under the Texas Workers’ Compensation Act
(“TWCA”).7 Because Williams failed to put forth sufficient evidence to establish


       6
         In Weingarten, the Supreme Court held that the National Labor Relations Act
“guarantees an employee’s right to the presence of a union representative at an investigatory
interview in which the risk of discipline reasonably inheres.” Nat’l Labor Relations Bd. v. J.
Weingarten, Inc., 420 U.S. 251, 262 (1975).
       7
         Section 451.001 of the Texas Labor Code prohibits an employer from discharging or
discriminating against an employee because that employee has filed a workers’ compensation
claim in good faith. TEX. LAB. CODE ANN. § 451.001.

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                                        No. 09-20231

a prima facie case of retaliation, we affirm the district court’s entry of judgment
in favor of the Defendant-Appellees.8
       The elements of a prima facie case of retaliation under the workers’
compensation act are that: (1) the employee filed a claim for workers’
compensation benefits in good faith; (2) he suffered an adverse employment
action; and (3) there is a causal link between the adverse employment action and
the filing of the workers’ compensation claim. Terry v. S. Floral Co., 927 S.W.2d
254, 257 (Tex. App.—Houston [1st Dist.] 1996, no writ). In the present case, the
Plaintiff-Appellant failed to produce evidence to establish the necessary causal
link between his application for workers’ compensation benefits and his
employer’s decision to fire him.9
       The fact that Tyson and SWBT were aware of Williams’s workers’
compensation claim at the time they terminated his employment is insufficient.
See Santillan v. Wal-Mart Stores, Inc., 203 S.W.3d 502, 507 (Tex. App.—El Paso
2006, pet. denied) (“[A]n employer’s knowledge of a workers’ compensation claim
standing alone is insufficient to raise a genuine issue of material fact.”)
(quotation and citation omitted). Thus, we affirm the district court’s conclusion



       8
        On appeal, Williams asserts that the district court erred by failing to consider his
evidence as a “modified version” of the Supreme Court’s burden-shifting framework in
McDonnell Douglas v. Green, 411 U.S. 792 (1978). Even if were to conclude that this argument
contains merit, his failure to establish a prima facie case would still prove fatal to his claim.
Under the McDonnell Douglas framework, the plaintiff bears the burden of establishing a
prima facie case. McDonnell Douglas, 411 U.S. at 802.
       9
        The record in this case alone stands as an insurmountable obstacle to Williams’
attempt to establish any sort of casual link between his filing the workers’ compensation claim
and SWBT’s termination of his employment. For almost two whole years prior to the
termination of his employment (since 2005), Williams had been under constant notice that his
performance was deficient and that his failure to improve would result in his termination.

                                               11
                                  No. 09-20231

that Williams failed to establish a prima facie case for retaliation under the
TWCA.
             F.   Labor Management Relations Act Claims
      Williams’s claims under § 301 of the Labor Management Relations Act, 29
U.S.C. § 185(a), for breach of the collective bargaining agreement and a violation
of the duty of fair representation, comprise two distinct causes of action. One is
against the employer, SWBT, and one is against the union, CWA. Section 301
provides an employee with a federal cause of action against his employer for
breach of the collective bargaining agreement. Additionally, the cause of action
against the union for breach of the duty of fair representation is implied under
the National Labor Relations Act. DelCostello v. Teamsters, 462 U.S. 151, 103
(1983). Thus, the two causes of action are “inextricably interdependent” and
together form a hybrid § 301 duty-of-fair-representation suit. United Parcel
Serv., Inc. v. Mitchell, 451 U.S. 56, 61-62 (1981). We will address both causes of
action in turn.
      In his ninth issued raised on appeal, Williams asserts that the district
court erred by entering judgment in favor of CWA, arguing that the evidence he
presented to the district court demonstrated that the Union breached its duty
of fair representation. He argues that CWA treated his case in a “perfunctory
manner” because it did not raise the ADA, FMLA, and workers’ compensation
issues at the “Division and General levels of the grievance process.” Williams
alleges that CWA acted in bad faith by not including these issues in the initial
grievance form or “anything that would alert the Company of the issues
involved.”




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                                  No. 09-20231

      Williams’s evidence, however, does not substantiate his claim because he
has not shown that CWA’s actions were “arbitrary, discriminatory, or in bad
faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967) (“A breach of the statutory duty
of fair representation occurs only when a union’s conduct toward a member of
the collective bargaining unit is arbitrary, discriminatory, or in bad faith.”).
Instead, a review of the record shows that CWA fulfilled its duty of fair
representation. CWA initiated a grievance on Williams’s behalf, investigated his
grievance, and gave him an opportunity to demonstrate that SWBT lacked just
cause to fire him. CWA reviewed all of the evidence before it and reasonably
concluded that it would likely not prevail in arbitration because of Williams’s
extensive disciplinary record and performance problems. Williams failed to
provide evidence that CWA’s actions were in any way “arbitrary, discriminatory,
or in bad faith,” and as a result, we affirm the district court’s entry of judgment
in favor of CWA.
      In his tenth issue raised on appeal, Williams contends that the district
court erred when it concluded that SWBT did not breach the collective
bargaining agreement. However, because the district correctly concluded that
CWA did not breach its duty of fair representation, Williams failed to establish
the “indispensable predicate” for his hybrid claim against SWBT. United Parcel,
451 U.S. at 62 (“the indispensable predicate for such an action is . . . a
demonstration that the Union breached its duty of fair representation.”); see also
Thomas v. LTV Corp., 39 F.3d 611, 621-622 (5th Cir. 1994) (“The indispensable
predicate for a section 301 action against an employer, based on a violation of a
collective-bargaining agreement, is the union’s breach of its duty of fair
representation.”).


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                                  No. 09-20231

      Consequently, we find the district court correctly concluded that SWBT did
not breach the collective bargaining agreement, and we affirm the district court’s
grant of judgment in SWBT’s favor.
      IV.   CONCLUSION
      For the aforementioned reasons, we affirm the district court’s entry of
judgment in favor of the Defendant-Appellees’, with prejudice, on all of the
Plaintifif-Appellant’s claims.




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