                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT

                   _______________________________

                              No. 01-20234
                           (Summary Calendar)
                   _______________________________


KARL H. PETERSON,

                                               Plaintiff-Appellant,

v.


CITY OF HOUSTON, TEXAS,

                                                Defendant-Appellee.

         _________________________________________________

              Appeal from the United States District Court
         for the Southern District of Texas - Houston Division
                              (H-99-CV-2458)
         _________________________________________________
                             August 20, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM*:

     Plaintiff-Appellant Karl Peterson (“Peterson”) appeals the

granting of summary judgment in favor of Defendant-Appellee City of

Houston (the “City”). Peterson brought suit alleging violations of

the Americans with Disabilities Act (ADA) and the Family Medical

Leave Act (FMLA).      Because we find that Peterson has failed to

establish the existence of a genuine issue of material fact as to



     *
       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this opinion should not be published and is not precedent except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.
either his ability to continue his employment with a reasonable

accommodation or his termination as retaliation for using FMLA

leave, we affirm.

                                         I.

                              FACTS AND PROCEEDINGS

      Peterson, a former curator at the City of Houston Zoo (the

“Zoo”), filed suit against the City following its termination of

his   employment        in    April   1998.         Peterson        suffers    from     a

psychological disorder and as a result, experiences insomnia.

According to Peterson, his insomnia caused his tardiness and

absenteeism at the Zoo, which eventually led to his firing.

      In 1990, Peterson was made a Curator, a high-ranking position

with supervisory        responsibilities.               Throughout   his   employment

Peterson    exhibited        an   irregular      attendance     pattern    marked      by

tardiness and occasional absenteeism.                    In April 1997, he took a

leave of absence from his position because of stress.                         In August

1997, his psychiatrist approved his return to work.                            Peterson

returned to work the next month following his twenty-one week

leave.      When   he    reported     for       work,    he   was   informed    by    his

supervisor that he must begin arriving at 8:00 A.M. every morning.

After Peterson indicated that he could not make that starting time,

his superior allowed him to delay his arrival time until 9:00 A.M.

each day.

      In January 1998, the Houston Parks and Recreation Department

issued a Policy and Procedure Directive (“Attendance Policy”)

                                            2
defining the violations and repercussions of excessive absenteeism

and tardiness.    Peterson’s tardiness and absenteeism nevertheless

continued in the months following the issuance of the Attendance

Policy.     In accordance with the Attendance Policy terms, he was

given a seven-day disciplinary suspension.   On his return to work

following his suspension, however, his attendance problems at the

Zoo continued.    Pursuant to Peterson’s request, his psychiatrist

wrote a letter to the Zoo in April 1998 clarifying that Peterson’s

disorder made it difficult for him to arrive at work on time.   This

letter did not specify an accommodation or arrival time that would

ameliorate Peterson’s attendance problem.    Finally, in June 1998,

he was suspended indefinitely by the City.

     Peterson then filed this action for violations of the ADA and

the FMLA.     After initial discovery, the City moved for summary

judgment of dismissal, which the district court granted on both

claims.   Peterson timely appealed.

                                 II.

                              ANALYSIS

A.   Standard of Review

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

novo, applying the same standard as the district court.1   A motion

for summary judgment is properly granted only if there is no



     1
        Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).

                                  3
genuine issue as to any material fact.2      An issue is material if

its resolution could affect the outcome of the action.3           In

deciding whether a fact issue has been created, the court must view

the facts and the inferences to be drawn therefrom in the light

most favorable to the nonmoving party.4

     The standard for summary judgment mirrors that for judgment as

a matter of law.5    Thus, the court must review all of the evidence

in the record, but make no credibility determinations or weigh any

evidence.6    In reviewing all the evidence, the court must disregard

all evidence favorable to the moving party that the jury is not

required to believe, and should give credence to the evidence

favoring the nonmoving party as well as that evidence supporting

the moving party that is uncontradicted and unimpeached.7

B.   ADA Claim

     Peterson must show that he is a “qualified individual with a

disability” to succeed on his ADA claim.8     Such an individual is


     2
        Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
     3
          Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).
     4
        Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th
Cir. 1999).
     5
          Celotex Corp., 477 U.S. at 323.
     6
          Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150
(2000).
     7
          Id. at 151.
     8
          42 U.S.C. §§ 12111(8), 12112(a).

                                   4
one who can perform the essential functions of his job with or

without reasonable accommodation.9              The district court reasoned

that Peterson was not a qualified individual because (1) regular

attendance was an essential part of his job and (2) the evidence

demonstrates that, even with the requested accommodation, Peterson

would not be able to attend his job in a timely and regular

fashion.         Such attendance on Peterson’s part was essential because

the Zoo was open to the public every day from 10:00 A.M. until 6:00

P.M., and Peterson, as a Curator, supervised keepers and was

responsible for the reptile and amphibian exhibits.

       Peterson claimed that his tardiness and absenteeism resulted

from       his    disabling   insomnia    and   that,     with     the   reasonable

accommodation of a 9:30 A.M. arrival time, he would have been able

to fulfill his responsibilities.              The Zoo’s failure to grant him

this accommodation and its subsequent decision to terminate him

violated the ADA, he argues.

       Peterson’s       attendance   over     the   two   months    preceding   his

termination, however, undercut his contention.                     His attendance

record shows many days when he arrived well past 9:30 or even 10:00

A.M. and, more importantly, many days and even weeks when Peterson

did not come to work at all.             Furthermore, the April 1998 letter

from Peterson’s psychiatrist does not bolster Peterson’s claim.

The letter does not designate specific accommodations that would


       9
            Id.

                                          5
permit his performance of essential job functions and does not

explain how any modification in arrival time would alleviate

Peterson’s chronic absenteeism.           Hence, as the district court

correctly noted, in Peterson’s capacity as Curator, his requested

accommodation still would not have allowed him to perform the

essential functions of the job.           Summary judgment was properly

granted on Peterson’s ADA claim.10

C.    FMLA Claim

      The FMLA ensures that qualifying employees can take up to

twelve weeks of unpaid leave per year without adverse employment

consequences.11     An eligible employee is one who suffers from a

“serious health condition that makes the employee unable to perform

the   functions    of   the   position   of   such   employee.”12   On   the

employee’s return, the employer must restore the employee to a

comparable position.13        To state a prima facie FMLA claim, the

employee must show that (1) his leave was FMLA protected, (2) an

adverse employment action occurred, and (3) the adverse action was



      10
         See Hypes v. First Commerce Corp., 134 F.3d 721 (5th Cir.
1998) (holding that regular attendance is an essential function of
most jobs and plaintiff’s requested time accommodation of arriving
to work later than scheduled would not remedy plaintiff’s tardiness
and absenteeism; therefore, plaintiff was not a qualified
individual under the ADA and summary judgment for the employer was
proper).
      11
           See generally 29 U.S.C. §§ 2612, 2615.
      12
           29 U.S.C. § 2612(a)(1)(D).
      13
           29 U.S.C. § 2614(a)(1).

                                     6
taken in response to his use of FMLA leave.14                    If an employee

establishes       a   prima   facie   case,    the   employer    must   proffer   a

legitimate, nondiscriminatory reason for the adverse action.                   And,

if the employer does so, the burden shifts back to the employee to

show that the employer’s reason is a pretext for discrimination.15

       Here, Peterson cannot establish a prima facie case.                  To gain

FMLA        protection,    Peterson    would    have    had     to   file   proper

documentation and comply with employer notification requirements.

The record does not demonstrate whether Peterson properly took

these actions.        More importantly, out of his twenty-one week leave

from April 1997 until September 1997, no more than twelve weeks

would be protected by the FMLA.

       Assuming arguendo that Peterson’s leave, or a portion of his

leave, qualified for FMLA protection, he nevertheless must raise a

genuine issue as to the causation requirement of his prima facie

case; in other words, he must present enough evidence for a

reasonable trier of fact to conclude that the City indefinitely

suspended him because he took FMLA protected leave.                  Peterson has

not met this burden.            His only evidence of causation is the

testimony of an assistant, employed by the City, who prepared

Peterson’s absence report for evaluation by Peterson’s superiors.

In this report, the assistant itemized Peterson’s absences from

       14
        Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th
Cir. 1999).
       15
             Id. at 320.

                                         7
1996 until his indefinite suspension, including his twenty-one week

absence in the middle of 1997.               As the district court correctly

noted, however, an itemized list of absences reviewed by a superior

does not, by itself, give rise to an inference of causation.                In

fact, in Peterson’s Letter of Indefinite Suspension, his supervisor

documented only absences and tardiness occurring between March 30,

1998 and May 26, 1998.        During that eight and one-half week period,

Peterson missed 218 hours of work —— the equivalent of more than

five weeks.      Under the Attendance Policy, his work record for the

two months immediately preceding his suspension more than qualifies

Peterson for disciplinary action. Peterson presents no evidence to

suggest that his supervisors relied on anything other than that

two-month period as the basis for his suspension.              Put simply, he

obviously was fired for absenteeism well in excess of any possible

FMLA    leave,    not   for    taking     leave    protected   by   the   FMLA.

Accordingly, as Peterson has not raised a genuine dispute of fact

as to the cause of his indefinite suspension, he has failed to

state a viable FMLA claim.

                                        III.

                                  CONCLUSION

       For the foregoing reasons, the district court’s grant of

summary judgment dismissing Peterson’s action is

AFFIRMED.




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