                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS                  August 3, 2007
                         FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk
                               No. 06-10609


                          STEVEN A. SERLING,

                                                      Plaintiff-Appellant,

                                  versus

           AMERICAN AIRLINES, INC., a Texas Corporation,

                                                      Defendant-Appellee.


           Appeal from the United States District Court
                for the Northern District of Texas
                           (4:05-CV-179)


Before KING, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Steven Serling challenges a summary judgment against his claim

for   unlawful   retaliatory   discharge,     under   the   Americans    with

Disability Act (ADA).      SUMMARY JUDGMENT AFFIRMED; TAXED COSTS

AFFIRMED IN PART AND VACATED IN PART; REMANDED.

                                    I.

      Serling began his employment with American Airlines as an

aircraft mechanic in December 1990.        He was terminated on 31 July

2003.



      *
      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this opinion should not be published and is not precedent except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.
     From September 2001 to March 2002, Serling was placed on a

six-month involuntary suspension due, in part, to a determination

by American’s medical department that he was unable to perform

safety-sensitive work.   In response to this restriction, Serling

filed a disability-discrimination claim with the Equal Employment

Opportunity Commission (EEOC) in September 2001.        Subsequently, in

December 2001, Serling filed a corresponding action in district

court.   In March 2002, after being cleared by American’s medical

department, Serling returned to work.           He settled his action

against American in February 2003.

     In the years preceding his termination, Serling was cited for

a number of work-related problems. His personnel file contained 12

citations, ranging from his failure to perform simple job-related

tasks and follow company protocol, to poor hygiene.                (In early

2004, for the union-related arbitration discussed infra, a neutral

arbitrator found Serling exhibited a “pattern of extremely poor

judgment ...   characterized   by   a   lack   of   safety   and    training

concerns, by many failures to follow simple instructions and

perform relatively simple mechanical tasks, and by failing to

perform when he was watched”.)      Two incidents in July 2003 led to

his termination.

     On 14 July, Serling improperly installed a clamp and failed to

engage a safety latch on an aircraft engine.           He admitted this

mistake to his direct supervisor, Victor Buchenot, who investigated


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the incident and confirmed the error.              American later deemed the

engine damaged beyond repair.

      The next day, Serling committed another serious work-related

error:     while attempting to unmount an aircraft engine from a

shipping stand, Serling began to remove the bolts which secured the

engine to the stand, without first attaching the engine to an

overhead hoist.      (Serling again concedes he made this mistake.)

After the mistake was called to his attention, Serling stopped

working and left the area.        Buchenot investigated the incident and

determined Serling committed a serious error which could have

resulted in damage to the engine.             Buchenot also faulted Serling

for walking away and failing to complete his assignment.

      Because of these incidents, Serling was terminated on 31 July

2003.     Serling filed a grievance under the Collective Bargaining

Agreement (CBA) to contest his termination.               He maintained his

mistakes were not so serious as to merit termination.            Pursuant to

the CBA, the grievance was heard by American’s chief operating

officer, who denied reinstatement.            Serling’s grievance was then

heard by a three-member arbitration panel on 29 January and 20

February 2004. The panel, composed of one American representative,

one     union   representative,        and   the   above-referenced   neutral

arbitrator, upheld the termination.

      Serling filed this action in March 2005 under the ADA, 42

U.S.C.    §§    12101-12213.      He    claimed    American   terminated   his



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employment in response to his having engaged in activity protected

by the ADA:    his EEOC claim in September 2001 (protected activity).

In April 2006, summary judgment was awarded to American.                 Without

deciding whether Serling established a prima facie retaliation

claim, the court concluded:        American showed, as a matter of law,

a   non-retaliatory       justification         for   terminating    Serling’s

employment; and American would have terminated Serling even in the

absence of the protected activity.                Costs were taxed against

Serling that May.

                                     II.

     Serling maintains the district court erred by granting summary

judgment and abused its discretion in taxing costs against him.

                                     A.

     In challenging the summary judgment, Serling contends the

district court erred:        by concluding American established, as a

matter of law, it would have terminated Serling regardless of his

protected activity; and, in reaching this conclusion, improperly

relied on the arbitration panel’s decision.                In the alternative,

Serling claims:     he is entitled to a mixed-motive analysis of his

claim;   and   he   met   that   burden    by    showing   retaliation    was   a

substantial motivating factor in his termination.

     A summary judgment is reviewed de novo, applying the same

standard as the district court.           Rachid v. Jack in the Box, Inc.,

376 F.3d 305, 308 (5th Cir. 2004).              Such judgment is proper when


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“the   pleadings,    depositions,     answers    to    interrogatories,         and

admissions on file, together with the affidavits ... show that

there is no genuine issue as to any material fact and ... the

moving party is entitled to a judgment as a matter of law”.                     FED.

R. CIV. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986).      In reviewing a summary judgment, all justifiable

inferences are drawn in favor of the nonmovant.            E.g., Bodenheimer

v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993).               Concerning

the court’s    admission   of   any   evidence    factually       found    at    an

arbitration hearing, “the district court ... is vested with broad

discretion in determining the admissibility of evidence, and its

rulings on such evidentiary matters are reviewed for abuse of that

discretion”.     Graef v. Chem. Leaman Corp., 106 F.3d 112, 116-117

(5th Cir. 1997); see FED. R. EVID. 103(a).               “Where an arbitral

determination gives full consideration to an employee’s [statutory]

rights, a court may properly accord it great weight.” Alexander v.

Gardner-Denver Co., 415 U.S. 36, 60 n.21 (1974).

       In reviewing a summary judgment against a retaliation claim,

this   court   applies   the   burden-shifting        framework   provided       in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).                    Serling

must establish a prima facie case for retaliation by showing: (1)

he engaged in protected activity; (2) he suffered an adverse-

employment action; and (3) a causal link existed between the

protected activity and the adverse-employment action.               E.g., Long

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v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996).           Once the

employee establishes a prima facie retaliation claim, the burden of

production shifts to the employer who must show a legitimate, non-

retaliatory justification for its action.       E.g., Machinchick v. PB

Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005).          The burden then

shifts back to the employee “to establish that the employer’s

permissible   reason    is   actually   a   pretext   for   retaliation”.

Septimus v. Univ. of Houston, 399 F.3d 601, 607 (5th Cir. 2005).

     Based of our review of the record, summary judgment was

proper, essentially for the reasons stated in the district court’s

April 2006 opinion, which held, inter alia:           Serling “failed to

reveal a conflict in [the] substantial evidence on the ultimate

issue of retaliation”.

                                   B.

     Taxed costs of $3,176.75 against Serling were for: (1) copies

of four depositions of American witnesses; and (2) videotaping

Serling’s deposition.    He contests those costs being taxed to him

but does not dispute their amount.

     Under 28 U.S.C. § 1920, a party may recover fees for copies of

depositions and any other papers as long as they are necessarily

obtained for use in the case.     While, “[i]tems proposed by winning

parties as costs should always be given careful scrutiny”, see

Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964), “[t]he

district court has broad discretion in taxing costs, and we will


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reverse only upon a clear showing of abuse of discretion”.                  Migis

v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998)

(emphasis added).

                                          1.

      Regarding the deposition copies, Serling contends American:

did   not    demonstrate       the   necessity      of    obtaining    copies   of

depositions of their own witnesses; had full knowledge of the

substance of their employees’ testimony; and did not refer to any

portion     of   this   testimony    in    their    summary   judgment    motion.

Despite Serling’s claims, the deposition copies were necessary for

American’s       preparation   for   the       summary   judgement    proceedings,

various pre-trial proceedings (including drafting the joint pre-

trial stipulation), and trial.            Therefore, in accordance with the

“broad discretion” afforded district courts in taxing costs, we

conclude the court did not abuse its discretion in regard to the

deposition copies.

                                          2.

      The district court did err, however, in taxing costs for

American’s videotaping his deposition.                   As we have previously

observed, “[t]here is no provision [in 28 U.S.C. § 1920] for

videotapes of depositions”.               Id.     Therefore, we vacate those

videotaping costs taxed against Serling.




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                                III.

     Accordingly, judgment against Serling is AFFIRMED; the taxed

costs for   the   deposition   copies   are   AFFIRMED,   but   those   for

videotaping Serling’s deposition are VACATED; and this matter is

REMANDED to district court.

                     AFFIRMED IN PART; VACATED IN PART; REMANDED




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