                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 05-1582



RICHARD B. PENCE,

                                              Plaintiff - Appellant,

           versus


TENNECO    AUTOMOTIVE OPERATING   COMPANY,
INCORPORATED, a Delaware Corporation, t/a
Walker Manufacturing Company, t/a Tenneco
Automotive,

                                              Defendant - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Samuel G. Wilson, District
Judge. (CA-04-75-5)


Argued:   February 2, 2006                  Decided:   March 7, 2006


Before WIDENER, LUTTIG, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Timothy Earl Cupp, CUPP & CUPP, P.C., Harrisonburg,
Virginia, for Appellant. Thomas J. Brunner, BAKER & DANIELS, South
Bend, Indiana, for Appellee.   ON BRIEF: Alison G. Fox, BAKER &
DANIELS, L.L.P., South Bend, Indiana; Thomas E. Ullrich, WHARTON,
ALDHIZER & WEAVER, P.C., Harrisonburg, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Richard Pence appeals the district court’s grant of summary

judgment for Tenneco on Pence’s claims under the Americans With

Disabilities Act, 42 U.S.C. § 12101 et seq., and the Family and

Medical Leave Act, 29 U.S.C. § 2611 et seq.       For the reasons that

follow, the judgment of the district court is affirmed.



                                 I.

     Richard Pence had worked for Tenneco for over 30 years before

his termination in 2003.       J.A. 552.     Despite having somewhat

“eccentric” views about federal taxation and Tenneco’s treatment of

him, see J.A. 436, 555, 561-67, 626, Pence was considered by his

bosses to be a “good performer,” J.A. 434-35, and prior to October

2003, it is undisputed that Tenneco had no reason to terminate

Pence, J.A. 512.

     However,   on   Friday,   October     17,   2003,    Pence   had   a

conversation with Nurse Evelyn Burner.     J.A. 163.     Burner e-mailed

Human Resources Manager Rod Little the following Monday, October

20, 2003, claiming that during the course of this conversation

Pence had made threatening remarks.         Specifically, her e-mail

stated that Pence said that “when he leaves here that he will be

taking a bunch of people with him” and that when she “asked him if

he meant here at [Tenneco] or at the court house downtown,” he

“responded by stating both places and that he has AK’s and more


                                 -2-
ammo than Rockingham County.”             J.A. 163.      In addition to e-mailing

Little on Monday, Burner had alerted the FBI to Pence’s statements

over the weekend.        J.A. 119, 132.

       After   talking     to   Burner,     Little      immediately     contacted     a

superior, as well as the legal department.                J.A. 101, 105, 115.       In

addition, Tenneco contacted the local police, J.A. 137-40, as well

as its security consultant, J.A. 102, 105, 116.                        The next day,

October 21, 2003, Pence was removed from work, ordered not to

return    until    notified,       put    on     paid    disability      leave,    and

mandatorily referred to Tenneco’s Employee Assistance Program, J.A.

105-07.     Tenneco’s EAP referred Pence to a psychologist who, on

November 3, 2003, concluded that, based only on Pence’s self-

reporting, he was “unable to provide an opinion one way or another”

on whether Pence had a mental condition.                  J.A. 224.      On November

21,    2003,   a   conference      call    was    held    in   which    several   EAP

employees, Tenneco’s legal counsel, and Little participated.                      J.A.

383.    Little’s notes from the call state that an EAP employee told

him that “[e]veryone should be cautious of safety not only at the

immediate time but in the future,” that “Pence demonstrates a high

level of paranoia,” that Pence “does not have a condition that

would be responsive to counseling,” and that “[i]t is not a

treatable      condition    with    continued      counseling.”         J.A.   519.

       Tenneco thereafter had its security consultant conduct a

safety evaluation of Pence’s plant, made improvements to the plant


                                          -3-
on the basis of this evaluation, and then terminated Pence on

December 22, 2003, when the plant was largely empty due to a

holiday shut-down.   J.A. 108-09.    Pence was terminated on the

formal ground that his threatening statements violated workplace

rule 29, J.A. 72, which in substance “[p]rohibits threatening,

intimidating, coercing, or harassing co-workers,”   J.A. 66, 72.



                               II.

     We first address Pence’s argument that the district court

improperly granted summary judgment to Tenneco on his claim of

wrongful termination under the ADA.     We conclude that summary

judgment was proper because, even assuming that Pence established

his prima facie case, Pence failed to demonstrate that Tenneco’s

asserted non-discriminatory justification for his termination was

pretextual and that a rational factfinder could conclude that his

termination was the result of disability discrimination.   See Rowe

v. Marley Co., 233 F.3d 825, 829 (4th Cir. 2000).

     Tenneco asserted that Pence was fired because it believed that

he had made threatening remarks in violation of a workplace rule.

Unrefuted evidence demonstrates that Tenneco believed that Pence

had threatened the lives of other employees: Burner sent an e-mail

to Little alleging that Pence had said “when he leaves here that he

will be taking a bunch of people with him” and that “he has AK’s

and more ammo than Rockingham County,” J.A. 163, and Little and


                               -4-
Burner, rightly or wrongly, construed those statements as death

threats, calling the FBI, the local police, and Tenneco’s security

consultant within days of learning of the statements, J.A. 105,

119, 132, 137-40.1

     Pence puts forth three reasons why Tenneco’s reliance upon its

belief that he had made threatening remarks in violation of a

workplace rule is merely a pretext for disability discrimination.

None of the reasons is sufficient to meet his burden under Rowe.

     First, Pence repeatedly insists that he did not make any

threat and that Burner misconstrued what he said. This is entirely

immaterial.    Just as “[t]he law is well settled that the ADA is not

violated when an employer discharges an individual based upon the

employee’s misconduct, even if the misconduct is related to a

disability,” Jones v. American Postal Workers Union, 192 F.3d 417,

429 (4th Cir. 1999), it also follows that the ADA is not violated

when an employer discharges an employee because of a mistaken

perception of misconduct, even if the misconduct would have been

related   to   a   disability.   As    the   district   court   correctly

recognized, J.A. 714-15, it makes no difference if the employee was

in fact guilty of misconduct; as long as the employer discharged


     1
      Although Pence was never asked about the threatening
statements, J.A. 453, this fact at most demonstrates that Tenneco
jumped to conclusions by inadequately investigating Burner’s
allegations. But even thus construed in the light most favorable
to Pence, this fact alone is insufficient to demonstrate that
Tenneco did not actually believe that Pence had threatened the
lives of other employees.

                                 -5-
the employee because it honestly believed that the employee had

engaged in misconduct, then the employer has not discriminated on

the basis of disability.

       Second, Pence attempts to demonstrate pretext by proffering

evidence showing that similarly situated employees were not fired.

However, none of his evidence demonstrates that Tenneco ever failed

to fire an employee who it believed had threatened to kill other

employees. In other words, none of the employees whom Pence relies

upon are actually similarly situated.                 See King v. Rumsfeld, 328

F.3d       145,   151-52   (4th   Cir.   2002)   (rejecting     an   attempt   to

demonstrate pretext based upon the defendant’s conduct toward an

employee who was not similarly situated to the plaintiff).                 Two of

the employees Pence cites are not alleged to have threatened to

kill anyone, see J.A. 630-32 (David Cathell); J.A. 643, 646 (Dwight

Hensley), and nothing in the record refutes Little’s testimony that

he   had     not   found   any    evidence     that    supported   an   anonymous

allegation that a third employee, Vernon Parker, had threatened to

kill other employees, see J.A. 504-07, 547-49, 643-44.2

       Third, Pence argues that summary judgment was improper by

relying upon Little’s notes from the conference call, which,


       2
      Moreover, Tenneco affirmatively tendered evidence that it had
terminated employees who it believed had made death threats, J.A.
109, and Pence’s argument that those employees were allowed to give
their side of the story, J.A. 73-75, once again proves at most only
that Tenneco reached a rash decision in his case, not that Tenneco
did not actually base his termination on its belief that he had
made a death threat.

                                         -6-
construed in the light most favorable to Pence, could raise the

inference      that     Tenneco     believed     that    Pence      suffered    from    an

untreatable mental condition of paranoia.                    See J.A. 519.      However,

even given that inference, no reasonable factfinder could conclude

that Tenneco’s asserted reason for Pence’s termination was a

pretext.      Cf. Rowe, 233 F.3d at 830 (recognizing that even when a

plaintiff demonstrates a prima facie case and pretext, summary

judgment for the defendant is required when no rational factfinder

could conclude that the challenged action was discriminatory).3

Based on the record, no rational factfinder could conclude that

this passing reference to a belief that Pence was paranoid was the

reason for his termination, as opposed to evidence that Tenneco

thought the death threat was caused by paranoia.                       And to repeat,

because of Jones, Tenneco’s belief that Pence had made a death

threat      was   a     permissible       nondiscriminatory          reason    for     his

termination, even if Tenneco believed that a mental condition had

caused Pence to make the threat.

      Because         Pence     cannot    demonstrate        that     Tenneco’s      non-

discriminatory reason for his termination was pretextual and that

his       termination         was   the    result       of    unlawful        disability




      3
      Alternatively, Little’s notes could be viewed as direct
evidence of disability discrimination. But even so viewed, summary
judgment would still be appropriate for the same reason discussed
above.

                                           -7-
discrimination, summary judgment was properly granted on Pence’s

claim of wrongful termination under the ADA.4



                                       III.

     Next, we turn to Pence’s claim that he was forced to undergo

a mental examination in violation of the ADA.                  We conclude that the

district court did not err in granting summary judgment to Tenneco

on this claim because the psychological examination was permitted

under the ADA, as it was “job-related and consistent with business

necessity.”     42 U.S.C. § 12112(d)(4)(A).5

     As   a   threshold      matter,     we    note     that    whether    a   mental

examination        was    “job-related     and    consistent        with    business

necessity” is an objective inquiry.                   See Tice v. Centre Area

Transportation Authority, 247 F.3d 506, 518 (3d Cir. 2001).                       We

therefore     do    not    resolve   any      dispute    about     what    Tenneco’s

subjective motivations were for having Pence examined by the EAP.

Rather, we need only decide whether Tenneco’s decision to have

Pence examined, after it was alleged that he had made death threats



     4
      For the same reason, the district court’s grant of summary
judgment to Tenneco on Pence’s ADA retaliation claim is also
affirmed. See J.A. 716-17.
     5
      We therefore have no need to decide whether, as the parties
appear to have assumed, an individual who is not disabled under the
ADA can nevertheless bring a claim under section 12112(d). See
Armstrong v. Turner Indus., Inc., 141 F.3d 554, 558 (5th Cir. 1998)
(recognizing the difficulty of the statutory interpretation
question).

                                         -8-
against other employees, was “job-related and consistent with

business necessity.”

     Analyzing the issue thus framed, we conclude that the ADA does

not prevent an employer from psychologically evaluating an employee

who has been alleged to have made death threats against other

employees.   It is undoubtedly “job-related and consistent with

business necessity” to ascertain whether such an employee poses a

danger to the workplace, to investigate how best to deal with any

security risk that exists, and to determine whether the termination

of the problem employee could potentially trigger the threatened

actions or instigate a violent reprisal against the employee who

informed the employer that the threatening statements were made.

     Pence argues that such an examination is not “consistent with

business necessity” because an examination is unnecessary until the

employer verifies that a threat was actually made.    He therefore

argues that his examination was unnecessary because he did not

actually make any threats and if Tenneco had simply asked him for

his side of the story, it would have realized this as well.      We

reject this argument because it implies that employers must either

alert a potentially dangerous employee that his colleagues have

reported him and take the risk that retaliation will occur or forgo

a psychological examination and take the risk that the security

threat will not be resolved in the safest way possible.   The phrase

“business necessity” need not, and should not, be interpreted to


                               -9-
require such a result.      Instead, we believe that the ADA is

satisfied provided the employer has a good faith belief that an

employee has made death threats, which Tenneco did.6



                                IV.

     Finally, we turn to Pence’s claims under the Family and

Medical Leave Act.   We conclude that the district court correctly

granted summary judgment because Pence does not have a “serious

health condition,” which is a threshold requirement for entitlement

to FMLA leave for Pence.   See 29 U.S.C. § 2612(a)(1)(D); see also

J.A. 718.   As relevant to this case, the FMLA defines a “serious

health condition” as an “illness, injury, impairment, or physical

or mental condition that involves . . . continuing treatment by a

health care provider.”     29 U.S.C. § 2611(11)(B).    There is no



     6
      Pence, relying only upon an EEOC guidance document, also
argues that in order for an examination to be “job-related and
consistent with business necessity,” the employer must have had a
reasonable belief that the employee was impaired by a medical
condition. This argument is flawed for two reasons. First, the
fact that the EEOC advises that an examination will “generally” be
permissible when there is “objective evidence” that “an employee’s
ability to perform essential job functions will be impaired by a
medical condition” does not require the negative inference that an
examination is necessarily prohibited when the employer is
uncertain whether the employee is impaired by a medical condition.
Second, and more fundamentally, such an interpretation would be
absurd in this context since, in the face of perceived death
threats, employers need to determine whether there is a substantial
security risk and how most safely to deal with such a risk if it
exists, questions that a psychological examination helps answer
regardless of whether the threatening employee actually suffers
from a mental condition or is “merely” dangerous and violent.

                               -10-
evidence that Pence has a mental condition or impairment, J.A. 224,

and in any event, Pence has repeatedly insisted that he does not

suffer from any mental condition or impairment, thereby admitting

that he does not have a “serious health condition.”   Pence tries to

evade this concession by relying upon 29 C.F.R. § 825.114(b), which

states that “treatment” includes “examinations to determine if a

serious health condition exists.”       But Pence fails to recognize

that under section 2611(11)(B), “treatment,” however defined, must

be for a mental condition or impairment, and so his concession that

he does not have one is fatal.



                            CONCLUSION

     For the reasons stated herein, the judgment of the district

court is affirmed.

                                                            AFFIRMED




                                 -11-
