     Case: 17-30384      Document: 00514151944         Page: 1    Date Filed: 09/12/2017




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

                                                                                    FILED
                                    No. 17-30384                            September 12, 2017
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk


VERNA J. FLOYD, as the Personal Representative of the Estate of her
Deceased Son, Jody Floyd,

              Plaintiff - Appellant
v.

CHILLY'S L.L.C. OF ALABAMA,

              Defendant - Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:15-CV-544


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Chilly’s L.L.C. of Alabama (“Chilly’s”) fired Jody Floyd soon after he
informed the company of his cancer diagnosis. Jody’s mother Verna Floyd
(“Floyd”) sued on behalf of his estate, alleging that his firing was a
discriminatory act in violation of the Americans with Disabilities Act of 1990




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-30384    Document: 00514151944     Page: 2   Date Filed: 09/12/2017


                                 No. 17-30384

(“ADA”). The district court granted summary judgment in favor of Chilly’s.
Floyd appeals. We AFFIRM.
                                       I
      Chilly’s is a licensed distributor of “Good Humor” ice cream, placing
freezers containing ice cream on retail premises. Chilly’s hired Jody in May,
2012 as a Business Development Manager. He was responsible for convincing
retailers in the Baton Rouge area to place Chilly’s’ freezers on their premises.
Jody was hired in large part because he indicated to Chilly’s that he had
hundreds of accounts he could acquire on its behalf.
      About a month after Jody was hired, he began feeling ill. He was
diagnosed with squamous cell carcinoma. In July, 2012, Jody informed his
supervisor at Chilly’s that he was undergoing radiation treatment at a cancer
center in Houston. Either due to his illness or for other reasons, Jody was not
able to acquire the bulk of the promised accounts for Chilly’s. Chilly’s fired
Jody soon after. Jody eventually succumbed to his disease.
      Floyd sued, alleging that Jody’s termination was a prohibited act of
discrimination in violation of the ADA, 42 U.S.C. §§ 12102 et seq. Chilly’s
moved for summary judgment. The district court applied the familiar burden-
shifting framework laid out in McDonell Douglas Corp. v. Green, 411 U.S. 792
(1973), and concluded that, although Floyd established a prima facie case of
discrimination, Chilly’s was able to provide a non-discriminatory reason for
firing Jody—a reason Floyd could not show was pretextual. Accordingly, the
district court granted summary judgment in favor of Chilly’s.
                                       II
      We review a grant of summary judgment de novo, applying the same
standard as the district court. E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694
(5th Cir. 2014). Summary judgment is appropriate if “the movant shows that


                                       2
    Case: 17-30384     Document: 00514151944     Page: 3   Date Filed: 09/12/2017


                                  No. 17-30384

there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
                                       III
      Chilly’s does not contend on appeal that the district court erred in finding
that Floyd established a prima facie case of discrimination. Our focus is thus
entirely on the latter part of the McDonnell Douglas framework: whether the
district court erred in concluding that there was no dispute of material fact
that (1) Chilly’s was able to establish a non-discriminatory reason for Floyd’s
firing and (2) Floyd was not able to show that the reason was pretextual.
      Chilly’s argues that Jody was not fired because of his illness but rather
because of his inability to deliver clients. The record evidence supports this
contention. In an email to Jody just three days after he was fired, for example,
Jody’s (ex-)supervisor wrote, “I am sorry that your position in Baton Rouge was
discontinued . . . as you are aware, production of effective accounts did not fall
into place.” At his deposition, the same supervisor again testified that “[t]he
wording in the e-mail is exactly why [Jody] was terminated.” The supervisor
also read from a document titled “Employee Termination Information,” which
included a passage under the heading “Termination Reason” that read
“[p]osition as sales agent is discontinued due to market conditions.” Floyd
offers no evidence to contradict this record evidence tending to show that Jody
was fired for a non-discriminatory reason. The district court did not err in
holding that Chilly’s established a non-discriminatory reason for Jody’s firing.
      The burden thus shifts back to Floyd, who must show a dispute of
material fact as to whether the proffered non-discriminatory reason is
pretextual. She first notes that Chilly’s initially made certain arguments
unrelated to Jody’s job performance in arguing that Floyd could not make out
a prima facie case of discrimination. She then contends that, because Chilly’s


                                        3
    Case: 17-30384    Document: 00514151944      Page: 4    Date Filed: 09/12/2017


                                  No. 17-30384

“shifted” its reasoning at the non-discriminatory reason stage in arguing that
the firing was due to Jody’s alleged inadequate job performance, its proffered
reason must therefore be pretextual.
      Floyd’s argument is nonsensical. It is true that “the trier of fact may still
consider the evidence establishing the plaintiff’s prima facie case and
inferences properly drawn therefrom . . . on the issue of whether the
defendant’s explanation is pretextual.” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000) (internal quotation marks omitted). But it does
not follow that, simply by arguing that an employee cannot make out a prima
facie case of discrimination, an employer has necessarily rendered any
proffered non-discriminatory reasons pretextual. If the argument made at the
prima facie stage does not contradict the argument made at the non-
discriminatory reasons stage, then the simple fact of having made both
arguments does not render the latter pretextual. Because Floyd cannot point
to any genuine evidence tending to raise a dispute as to whether the proffered
non-discriminatory reason is pretextual, her argument must fail.
                                       IV
      The district court’s judgment is AFFIRMED.




                                        4
