                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        February 26, 2004
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-50656


     DICK W ARRINGTON

                          Plaintiff - Appellant

     v.

     SOUTHWESTERN BELL TELEPHONE CO

                          Defendant - Appellee


          Appeal from the United States District Court
                for the Western District of Texas
                         No. MO-00-CV-57


Before KING, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.

PER CURIAM:*

     Plaintiff-Appellant Dick W. Arrington appeals the district

court’s grant of summary judgment to Defendant-Appellee

Southwestern Bell Telephone Company (“SW Bell”) on his disability

discrimination and retaliation claims.    For the following

reasons, we AFFIRM.

I.   BACKGROUND

     Arrington was employed by SW Bell from 1974 to 1998.



     *
          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that this opinion should not be published and is not precedent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.
Beginning in 1979, Arrington worked as a Customer Services

Technician (“CST”), installing and repairing phones and phone

lines for SW Bell’s customers at their homes and places of

business.   Arrington was diagnosed with diabetes in 1986, and his

supervisor, Junior Brown, admits that he and the company were

aware of this diagnosis.   In fact, in December 1995, Arrington

had to take disability leave due to problems associated with

diabetic ulcers on his feet.   After a dispute over his date of

return, Arrington was discharged and filed a complaint with the

Equal Employment Opportunity Commission (“EEOC”).    Arrington and

SW Bell subsequently settled their dispute, and Arrington was

reinstated to his position as a CST in January 1997.

     SW Bell repeatedly counseled Arrington for absenteeism and

productivity problems beginning in 1987.   In addition, the

company began to receive numerous complaints from customers about

Arrington’s physical appearance, attitude, and skill level in

1988, for which Arrington was also repeatedly counseled.    In

1995, Arrington was informed by SW Bell that, because of his low

productivity and tendency to waste time on the job, he was

ineligible to work overtime until there was a “noticeable

improvement” in his performance.   This restriction continued to

apply after Arrington was reinstated in January 1997.

     In November 1997, SW Bell placed Arrington on Decision

Making Leave due to a customer’s complaints that Arrington

mistakenly cut the customer’s doorbell wire, that his appearance

                                -2-
upset the customer’s daughter, and that he had a poor attitude.

Under the Leave, Arrington was given a day to decide whether to

return to work at SW Bell.   He agreed to return and was placed on

probation for one year, during which he was subject to dismissal

for unsatisfactory performance of his job duties.   Then, on June

24, 1998, Junior Brown visited a job site listed on Arrington’s

schedule, but he could not find Arrington.   Both parties agree

that Brown contacted the customer, Ms. Prickle, the next day to

determine whether Arrington had, indeed, worked there.   According

to Brown, Prickle complained about Arrington’s inability to

finish the job and his rude behavior; Brown also contends that

Arrington improperly coded his work for Prickle, in violation of

company policy.   As a result, Arrington was suspended from his

CST position, and SW Bell later offered him a Supplies Attendant

position, which did not involve either customer contact or

productivity requirements.   When Arrington refused to accept this

position, SW Bell dismissed him.

     After his second termination from SW Bell, Arrington

initiated the present lawsuit, alleging that SW Bell violated the

Americans with Disabilities Act (“ADA”) by subjecting him to

disparate treatment and eventually firing him because of his

diabetes.   Arrington also alleges that his treatment and

discharge from SW Bell were improperly motivated by retaliation

for his filing of an EEOC complaint in 1996.   For example,

Arrington believes that SW Bell solicited all of the customer

                                -3-
complaints against him and that other, less efficient CSTs were

neither disciplined nor counseled, as he was, for poor

productivity.

      In January 2003, SW Bell filed a motion for summary

judgment, asserting that Arrington had failed to establish either

that he suffered from a legally cognizable “disability” or that

SW Bell’s proffered reasons for firing him were pretextual.     The

district court agreed, and granted summary judgment in favor of

SW Bell on both the disability discrimination and retaliation

claims in May 2003. Arrington appeals both of these decisions.

II.   STANDARD OF REVIEW

      We review a district court’s grant of summary judgment de

novo, applying the same standard as the district court.        Seaman

v. CSPH, Inc., 179 F.3d 297, 299 (5th Cir. 1999).    Summary

judgment is appropriate when the record demonstrates no genuine

issue of material fact and where the moving party is entitled to

a judgment as a matter of law.   FED. R. CIV. P. 56(c).   Although in

our review of the record we must draw all reasonable inferences

in favor of the nonmoving party, “[t]he moving party is entitled

to a judgment as a matter of law [if] the nonmoving party has

failed to make a sufficient showing on an essential element of

[his] case with respect to which [he] has the burden of proof.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal

quotation marks omitted).   Moreover, we have stated that the



                                 -4-
nonmoving party does not demonstrate the existence of a genuine

issue of fact (and does not thereby avoid summary judgment) by

asserting “some metaphysical doubt as to the material facts, by

conclusory allegations, by unsubstantiated assertions, or by only

a scintilla of evidence.”    Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc) (citations and internal

quotation marks omitted).

III. DISCUSSION

     A.     Disability Discrimination

     A plaintiff may prove intentional discrimination under the

ADA either by presenting direct evidence of discrimination or by

utilizing the familiar McDonnell Douglas burden-shifting method

of proof.    Seaman, 179 F.3d at 300.   Because Arrington provides

only circumstantial evidence of discrimination, we review his

claim under the latter standard.    To establish a prima facie case

of disability discrimination, Arrington must show that he “(1)

suffers from a disability; (2) was qualified for the job; (3) was

subject to an adverse employment action, and (4) was replaced by

a non-disabled person or treated less favorably than non-disabled

employees.”    Id.; see also 42 U.S.C. § 12112(a) (2000).

     The parties dispute whether Arrington has met his burden of

proof regarding the first element of the prima facie case.    Under

the ADA, a “disability” is defined as

          (A) a physical or mental impairment that
     substantially limits one or more of the major life

                                 -5-
     activities of [an] individual;
          (B) a record of such an impairment; or
          (C) being regarded as having such an impairment.

42 U.S.C. § 12102(2) (2000).     Arrington asserts that he meets

either definition (A) or definition (B) because he suffers from

diabetes.2    Specifically, he argues that this circuit held, in

Gonzales v. City of New Braunfels, 176 F.3d 834, 837 (5th Cir.

1999), that insulin-dependent diabetes is a “disability” as that

term is defined in the ADA.     SW Bell disagrees, and contends that

Arrington must produce evidence suggesting that his diabetic

condition “substantially limits” at least one of his “major life

activities.”     See 42 U.S.C. § 12102(2)(A); EEOC v. R.J. Gallagher

Co., 181 F.3d 645, 655 (5th Cir. 1999) (holding that, for a

plaintiff to prove that he has a “record of impairment” under 42

U.S.C. § 12102(2)(B), “there must be a record of an impairment

that substantially limits one or more of [his] major life

activities”).

     SW Bell correctly identifies the flaws in Arrington’s

position.     Gonzales does not stand for the proposition that

diabetes is a disability per se; rather, Gonzales merely noted

that, at that time, this circuit’s precedents required a

plaintiff’s claim that he suffered a “disability” to be evaluated

by considering the impact of the plaintiff’s untreated impairment

on his major life activities.     176 F.3d at 837.   Under that test,

     2
             Arrington concedes that he was not regarded as
disabled.

                                  -6-
the Gonzales court observed that insulin-dependent diabetes would

qualify as a disability because, if someone with this disease is

deprived of insulin, he will lapse into a coma.     Id.   But this

observation was mere dicta, and the Gonzales court cautioned that

the Supreme Court was currently considering whether disabilities

should, in fact, be measured without reference to mitigating

factors.   Id.   Thus, not only is this observation not binding

precedent, but its logical force has been undermined by the

Supreme Court’s subsequent determination, in Sutton v. United Air

Lines, Inc., 527 U.S. 471, 482-83 (1999), that “[a] person whose

physical or mental impairment is corrected by medication or other

measures does not have an impairment that presently

‘substantially limits’ a major life activity.”     Instead, whether

a person is disabled under the ADA “depends on whether the

limitations an individual with an impairment actually faces are

in fact substantially limiting.”    Id. at 488.3

     In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams,

534 U.S. 184 (2002), the Supreme Court further clarified that

“[i]t is insufficient for individuals attempting to prove

disability status under this test to merely submit evidence of a

     3
          Moreover, Sutton specifically cautioned that assessing
diseases in their untreated state would require courts to, for
example, treat all diabetics as disabled per se, a result which
the Court noted “is contrary to both the letter and the spirit of
the ADA.” 527 U.S. at 484; see also Waldrip v. Gen. Elec. Co.,
325 F.3d 652, 656 (5th Cir. 2003) (“[N]either the Supreme Court
nor this court has recognized the concept of a per se disability
under the ADA . . . .”).

                                 -7-
medical diagnosis of an impairment”; instead, plaintiffs are

required to offer evidence of the “extent of the limitation . . .

in terms of their own experience.”    Id. at 198 (citation and

internal quotation marks omitted).    Therefore, because Arrington

attempts to prove that he suffers from a disability simply by

referring to his medical diagnosis of diabetes, Arrington’s claim

must fail.   He has not explained, in either his opposition to

summary judgment or his brief on appeal, how his diabetes has

limited any of his major life activities.

     Nevertheless, in his deposition, Arrington complained that,

when he worked at SW Bell, his diabetes affected his

“production.”4   Viewing the record in the light most favorable to

Arrington, he may have been attempting to argue that his diabetes

qualifies as a disability because it substantially limited his

major life activity of “working.” But this argument fails as a

matter of law.   While we have recognized that “working” is a

major life activity for the purposes of the ADA, R.J. Gallagher

Co., 181 F.3d at 654, this court has also explained that

“[e]vidence of disqualification from a single position or a

narrow range of jobs will not support a finding that an

individual is substantially limited from the major life activity


     4
          Additionally, in his motion for summary judgment,
Arrington stated that SW Bell should have accommodated his
disability by allowing him additional time to complete his jobs.
But Arrington also conceded that he never requested that SW Bell
provide him with any reasonable accommodations.

                                -8-
of working.”    Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025

(5th Cir. 1999); accord Sutton, 527 U.S. at 491.       Thus, because

he does not claim that he was incapable of performing a range of

jobs due to his diabetes, Arrington has not demonstrated that he

has either a disability or a record of impairment under the ADA.5

     B.   Retaliation

     To establish a prima facie case of retaliation, a plaintiff

must prove that (1) he engaged in an activity protected by the

ADA, (2) he was subjected to an adverse employment action, and

(3) a causal connection existed between his participation in the

protected activity and the adverse employment action.       Seaman,

179 F.3d at 301.     Once the plaintiff has proven a prima facie

case, the burden of production shifts to the defendant to come

forward with a legitimate, non-discriminatory reason for the

adverse employment action.     Id.    If such a reason is provided,

then the plaintiff must proffer evidence that the given reason is

pretextual.    Id.   In essence, the plaintiff “must show that ‘but

for’ the protected activity, the adverse employment action would

not have occurred.”     Id.

     We need not decide whether Arrington has established a prima

     5
          To the extent that Arrington’s response to SW Bell’s
motion for summary judgment can be read to imply that the
diabetic foot ulcers on his feet substantially limited his major
life activity of “walking,” it fails as a matter of law. Cf.
Talk, 165 F.3d at 1025 (holding that a plaintiff’s ability to
walk was not substantially limited simply because she walked with
a limp, moved slower than other people, and was required to wear
special orthopedic shoes).

                                     -9-
facie case of retaliation because he has failed to demonstrate a

genuine issue of fact regarding whether SW Bell’s legitimate,

non-discriminatory reason for firing him was pretextual.     SW Bell

has provided evidence that Arrington was discharged due to his

troubled performance history and the company’s receipt of

numerous customer complaints regarding Arrington’s appearance,

demeanor, and working skills.   In addition, SW Bell has shown

that, in an attempt to help Arrington improve his performance and

prevent his termination, SW Bell placed Arrington on five

different Performance Improvement Plans, offered him assistance

from the company’s Employee Assistance Program (he declined), and

offered him two days of “ride along” assistance from a training

manager (he refused to participate on the second day).     Yet,

after he was placed on one year of probation and warned that

further problems would warrant immediate dismissal, Arrington was

the subject of another customer complaint.   But because

Arrington’s difficulties were centered on interaction with

customers and his level of productivity, SW Bell asserts, and

Arrington concedes, that instead of being immediately fired he

was offered the Supplies Attendant position, which he declined.

Thus, SW Bell has met its burden of providing a legitimate, non-

discriminatory reason for discharging Arrington.

     In rebuttal, Arrington provides only a scintilla of evidence

that SW Bell’s proffered reasons are pretextual.   Arrington

claims that, after he returned to work in 1997, SW Bell unfairly

                                -10-
disciplined him for his poor performance while the company’s

other employees with similar productivity levels were not

disciplined.   For support, Arrington provides a statement from

Clay Everett, Arrington’s union supervisor, that refers to

Arrington’s job productivity as in the “middle of the pack”

compared to other SW Bell employees.6    Yet, both Everett and

Arrington have also admitted that Arrington was once one of the

slowest employees in Midland and that, although his performance

was improving, he had not achieved the “mark where he needed to

be” before he was terminated.

     In addition to contesting SW Bell’s view of his

productivity, Arrington alleges that the customer complaints

lodged against him were improperly solicited by SW Bell’s

employees.   But other than the Prickle incident, where Arrington

challenged his supervisor to call the customer and check that he

was really working at her home, Arrington provides no evidence to

support his claim of solicitation.     The remainder of Arrington’s

examples of disparate treatment––that he was sent home for

wearing footwear that another CST was allowed to wear, that he

     6
          Everett’s statement refers to a document comparing the
number of jobs performed per day by many of SW Bell’s employees.
Because this document has not been made a part of the summary-
judgment record, it is impossible for this court to know whether
that document compared a variety of SW Bell’s statewide
employees, only SW Bell’s CSTs or, more specifically, only those
CSTs who worked in the Midland office. In addition, the record
does not reflect whether any of the employees on this list were
subject to discipline nor does it reflect the number of customer
complaints associated with each employee.

                                -11-
was given an un-air-conditioned van rather than the cable truck

driven by other CSTs, that his tools were substandard, that his

supervisors made rude comments about his age and productivity,

and that he was subjected to more extensive medical evaluations

than his fellow CSTs––are not relevant to the issue at hand:

whether SW Bell’s explanation that Arrington was fired for poor

productivity and customer complaints is merely pretext for

retaliation.

     In support of his claim of pretext, Arrington also contends

that SW Bell did not follow its standard practice of allowing a

union supervisor to investigate the customer complaints lodged

against him.     Arrington buttresses his argument by pointing out

that Everett has similarly expressed his belief that the final

customer complaint, involving Prickle, was not “objectively”

investigated.7    Moreover, Arrington and Everett dispute SW Bell’s

version of the Prickle incident, asserting that the customer was

mainly upset that Arrington did not complete the job, which they

believe was caused by his ineligibility to work overtime.    Yet,

the summary-judgment record contains admissions from both

Arrington and Everett that Arrington did not use an official SW

Bell code when he filed the paperwork regarding his inability to

complete the Prickle job, although neither thinks that this


     7
          Everett did not claim to have personal knowledge that
the other customer complaints lodged against Arrington were
improperly investigated.

                                 -12-
“offense” was serious.

     Viewed in its entirety, Arrington’s evidence of pretext and

retaliatory treatment is insufficient to permit a reasonable jury

to conclude that Arrington would not have been terminated “but

for” his filing of an EEOC complaint in 1996.   Arrington fails to

identify any similarly situated employees (i.e., those with a

history of numerous customer complaints and a similarly low

productivity level) who were neither disciplined nor discharged

for their poor job performance.   Arrington believes that he was

not a poor CST, but “[m]erely disagreeing with an employer’s

negative performance assessment is insufficient to show pretext.”

Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 325 (5th Cir.

2002).   Moreover, Arrington’s subjective belief that SW Bell

solicited the customer complaints, without more, is also

insufficient to cast doubt on SW Bell’s proffered reason for his

termination.   See Auguster v. Vermilion Parish Sch. Bd., 249 F.3d

400, 403 (5th Cir. 2001) (“This court has consistently held that

an employee’s ‘subjective belief of discrimination’ alone is not

sufficient to warrant judicial relief.” (citations omitted)).8

Therefore, the district court properly held that SW Bell was


     8
          The one factor in Arrington’s favor is his evidence
from Clay Everett, who also believes that Arrington was treated
unfairly. Yet Everett admitted that Arrington had a history of
poor productivity and customer complaints, and he did not claim
to have personal knowledge that the complaints against Arrington
were either baseless or solicited by Arrington’s supervisors at
SW Bell.

                               -13-
entitled to summary judgment on Arrington’s retaliation claim.

IV.   CONCLUSION

      Accordingly, we AFFIRM judgment of the district court.




                               -14-
