     Case: 19-10452      Document: 00515208048         Page: 1    Date Filed: 11/21/2019




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

                                                                             FILED
                                    No. 19-10452                     November 21, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
KENNETH HENRY,

              Plaintiff - Appellant

v.

SPECTRUM, L.L.C., formerly doing business as Time Warner Cable Texas,
L.L.C.; CHARTER COMMUNICATIONS, L.L.C., formerly doing business as
Time Warner Cable Texas, L.L.C.,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                               USDC 3:18-CV-1086


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The plaintiff asserts that when he was fired from his job, his employer
had engaged in unlawful discrimination and retaliation under the Americans
with Disabilities Act and state law. The district court granted summary




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 19-10452
judgment in favor of the defendants. We AFFIRM the summary judgment and
DISMISS certain parts of the appeal as explained below.


                         FACTUAL BACKGROUND
      From 1992 to 2015, Kenneth Henry worked as a maintenance technician
for Time Warner Cable Texas, L.L.C. In May 2015, while driving a company
vehicle, he ran a red light.        The accident severely injured multiple
people. Time Warner has a committee that reviews employee accidents. The
committee determined that the severity and avoidable nature of the accident
warranted terminating Henry’s employment. As a result, Henry was fired.
Henry argues that the accident was due to a diabetic emergency.
Consequently, he argues his firing was based on his diabetes and was also in
retaliation for filing a workers’ compensation claim.


                                DISCUSSION
      In addition to appealing the final judgment for the defendants, Henry
seeks to appeal the district court’s denial of his motion to compel as well as
that court’s partial judgment on the pleadings, in which the district court
dismissed two of Henry’s claims. The defendants doubt our jurisdiction to
review those two earlier rulings.
      In analyzing our appellate jurisdiction, we start with the requirement
that an appellant designate the orders being appealed. FED. R. APP. P.
3(c)(1)(B). “Where the appellant notices the appeal of a specified judgment
only or a part thereof, however, this court has no jurisdiction to review other
judgments or issues which are not expressly referred to and which are not
impliedly intended for appeal.” C. A. May Marine Supply Co. v. Brunswick
Corp., 649 F.2d 1049, 1056 (5th Cir. 1981).


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                                  No. 19-10452
      We will have jurisdiction, though, if the notice of appeal refers to an order
that was “predicated” on previous orders, and “the several orders and the
issues they deal with are for the most part inextricably interrelated.” Cates v.
Int’l Tel. & Tel. Corp., 756 F.2d 1161, 1173 n.18 (5th Cir. 1985). In Cates, the
defendants convinced the district court to dismiss two of the plaintiffs. Id. at
1168. The court later denied the remaining plaintiff’s motion to vacate the
earlier ruling, prohibiting the mention of those dismissed plaintiffs in the next
amended complaint. Id. at 1170. Final judgment came several months later.
The court dismissed based on the amended complaint’s failure to state a claim;
the amended allegations directly related to the actions of the previously
dismissed plaintiffs.    Id. at 1172.   The final order in the case thus was
“expressly . . . predicated” on the previous two orders. Id. at 1173 n.18.
      Henry timely filed his notice of appeal after final judgment. He stated
that he was appealing the “Memorandum Opinion and Order granting
summary judgment and the judgment in favor of defendants . . . entered in this
action on March 19, 2019.” Because the notice of appeal specifies only the order
of summary judgment, we have jurisdiction to review the other two orders only
if they are sufficiently related. The order denying the motion to compel was
not factually related to the grant of summary judgment.            The summary
judgment order also disposed of different claims than the order granting
judgment on the pleadings. Because summary judgment was not dependent
on the previous two orders, we conclude the orders were not “inextricably
interrelated.”   Cates, 756 F.2d at 1173 n.18.        Accordingly, we have no
jurisdiction to review those earlier orders.
      The defendants do not argue there is any jurisdictional defect for review
of the district court’s determination that the two remaining claims were
without merit: discrimination under Section 102(a) of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and for retaliation in violation
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                                    No. 19-10452
of the state’s workers’ compensation law. We review a district court’s grant of
summary judgment de novo. United States v. Lawrence, 276 F.3d 193, 195 (5th
Cir. 2001). Summary judgment is proper if there is no genuine dispute of
material fact and the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a).
      In support of reversal on the ADA discrimination claim, Henry asserts
he has presented direct evidence of discrimination. “If the plaintiff produces
direct evidence that discriminatory animus played a role in the employer’s
adverse employment decision, the burden of persuasion shifts to the defendant
who must prove that it would have taken the same action despite any
discriminatory animus.” Nall v. BNSF Ry. Co., 917 F.3d 335, 340 (5th Cir.
2019). Henry, though, had no direct evidence of discrimination. Rather, his
evidence requires chains of inferences and assumptions to reach the conclusion
that Time Warner acted with discriminatory animus. See Rodriguez v. Eli
Lilly & Co., 820 F.3d 759, 764–65 (5th Cir. 2016). Thus, he must rely on
circumstantial   evidence     and    the   McDonnell   Douglas     burden-shifting
framework. Id.
      The district court held that Henry established a prima facie case of
discrimination through evidence of his disability and his being qualified for his
position. The court nonetheless held that the claim failed because Henry did
not show that Time Warner’s stated reason for his firing was pretextual.
      Henry argues that inconsistencies and his employer’s failure to follow its
own protocol show pretext. Henry does identify minor alleged inconsistencies
about how he was fired, but he shows no inconsistencies about why he was
fired. To succeed, Henry needed to create a fact issue about Time Warner’s
motive in firing him. See Rodriguez, 820 F.3d at 765–66. The company’s safety
policy explicitly allowed for immediate termination for severe accidents. The
undisputed facts indicate that is what happened here.
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                                  No. 19-10452
      We need not decide whether Time Warner’s accident review committee
reached the best conclusion in determining the accident was severe and
avoidable. Instead, we review whether the employer acted in good faith in
relying on the investigation, or whether the investigation’s conclusion was
used “as pretext for an otherwise discriminatory dismissal.” Waggoner v. City
of Garland, 987 F.2d 1160, 1165 (5th Cir. 1993) (ADEA).             In a mostly
conclusory fashion, Henry asserts that the review committee was wrong in
determining that the accident was avoidable.         He also cites to his own
declaration and a friend’s declaration to support the fact that he was
experiencing diabetic symptoms on the date of the accident. Regardless of
whether this evidence creates a question of fact as to whether the accident was
avoidable, it does not create a question of fact as to whether Time Warner
relied reasonably and in good faith on the review committee’s conclusion.
Thus, nothing in the record supports that the stated reasons for Henry’s firing
were pretextual.
      The only meaningful question here is the legal relevance of the
possibility that the serious accident was the result of Henry’s diabetes. A
somewhat related question was posed in an appeal in which we upheld the
termination of the employee when a university “dismissed him because of his
work performance and lack of collegiality.” Newberry v. E. Tex. State Univ.,
161 F.3d 276, 279 (5th Cir. 1998). The discharged employee presented evidence
at trial that he suffered from obsessive-compulsive personality disorder and
that any work-performance deficiencies were the result of that condition. Id.
at 278. Jurors found that the former employee had no disability, and the
district court entered judgment upholding the finding. Id. at 279. On appeal,
we held that even when an employer believes that certain conduct may be
symptomatic of a disability, termination is still permissible on the “basis of the


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                                  No. 19-10452
conduct itself, as long as the collateral assessment of disability plays no role in
the decision to dismiss.” Id. at 279–80.
      Applying that analysis here, we conclude that Henry had to introduce
evidence to create a genuine dispute of material fact that he was fired for
reasons related to a qualifying disability. His diabetes was not shown be a
factor in the termination regardless of whether it was a factor in causing the
accident. Therefore, whether the accident was caused in whole or in part by
Henry’s diabetes is not legally relevant to the question of pretext.
      Henry raises additional arguments that were not briefed to the district
court in support of his discrimination claim. Generally, we do not consider
arguments raised for the first time on appeal. See AG Acceptance Corp. v.
Veigel, 564 F.3d 695, 701 (5th Cir. 2009). We do not consider those raised by
Henry.
      The district court also granted summary judgment dismissing Henry’s
workers’ compensation retaliation claim under Section 451.001 of the Texas
Labor Code. To establish a case of retaliation, a plaintiff must show that he
made a workers’ compensation claim that caused him to experience an adverse
employment action. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388
(Tex. 2006). The district court held that Henry failed to establish causation.
We agree that there is nothing in the record to support that Time Warner’s
stated reason for firing Henry was pretextual and that he would have been
treated differently but for his filing for workers’ compensation.
      AFFIRMED.




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