     Case: 16-60167      Document: 00513791532         Page: 1    Date Filed: 12/09/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 16-60167
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
SUMIE K. CLARK,                                                          December 9, 2016
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

BOYD TUNICA, INCORPORATED, doing business as Sam’s Town Hotel and
Gambling Hall,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 3:14-CV-204


Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       After fracturing her ankle in a workplace accident, Plaintiff–Appellant
Sumie Clark was tested for drugs and alcohol pursuant to the policy of her
employer, Defendant–Appellee Boyd Tunica, Incorporated, d/b/a Sam’s Town
Hotel and Gambling Hall. One of Clark’s samples tested positive for alcohol.
Upon confirming the positive alcohol sample, Clark’s employer fired her. Clark



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60167
sued her employer (among others), alleging that she was fired because of her
fractured ankle, in violation of the Americans with Disabilities Act.
Concluding that Clark’s fractured ankle did not qualify as a disability and that,
even if it did, Clark failed to create a genuine factual dispute that her
employer’s stated reason for termination—the positive alcohol sample—was a
pretext for disability discrimination, the district court entered summary
judgment in favor of Clark’s employer. For the following reasons, we AFFIRM
the district court’s judgment.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Sumie Clark worked as a specialty room chef for Boyd Tunica,
Incorporated, d/b/a Sam’s Town Hotel and Gambling Hall (Sam’s Town) in
Tunica, Mississippi. Sam’s Town has a substance abuse and testing policy that
requires drug and alcohol testing to be administered, in relevant part,
following workplace injuries that require medical attention. The policy states
that “being under the influence of any alcoholic beverage . . . on Company
premises . . . will not be tolerated,” and that, if a test reveals “a blood alcohol
level at or above the legal limit,” the employee will “be subject to immediate
termination.” Sam’s Town has repeatedly and consistently enforced the policy,
firing every employee who tested positive (as least since 2009) for drugs or
alcohol.
      On August 17, 2013, Clark tripped over an exposed drainage pipe in
Sam’s Town’s kitchen. Employees present at the time of the accident testified
that Clark did not appear to be under the influence of alcohol—she did not
smell of alcohol, have bloodshot eyes, or have impaired speech. After tripping,
Clark went to a clinic to have her ankle examined. The clinic also took a blood
and alcohol sample for testing pursuant to Sam’s Town’s substance abuse and




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testing policy, 1 took an x-ray of her ankle, and diagnosed her with an ankle
fracture. The clinic then sent Clark’s samples to Quest Diagnostics (Quest) for
screening.
        On August 21, Quest notified Sam’s Town that Clark’s blood sample
tested negative for drugs and alcohol, but her urine sample tested positive for
alcohol, at a level of .12%, which is above the legal limit in Mississippi. See
Miss. Code § 63-11-30(1)(d)(i) (setting .08% limit on alcohol concentration in
breath, blood, or urine of a person operating a vehicle). Clark testified that she
has never consumed alcohol, and Sam’s Town’s staff recognized that “the
alcohol seem[ed] out of character” for Clark, who was widely regarded as a
hardworking and competent employee.                   When Sam’s Town’s director of
operations, Michael Pastore, contacted Clark to inform her of the positive
alcohol sample, he also inquired about what Clark was drinking the day of the
accident and what medications she was taking in an attempt to determine
what triggered the positive result. Clark responded that she drank green tea
and provided a list of the medications she was taking. According to Clark,
Pastore also told her that he knew she does not drink alcohol, although she
admitted Pastore (like Sam’s Town’s other staff) did not interact socially with
her.
        After speaking with Clark, Pastore passed along the name of the green
tea and medications Clark was taking to Sam’s Town’s safety and loss
manager, Greg Lacki, who was handling the investigation. Lacki, in turn,
provided the information to Quest to determine whether these items could



        1 Clark does not challenge Sam’s Town’s substance abuse and testing policy or her
testing pursuant to it. Clark received a copy of Sam’s Town’s policy when she was hired,
attended a training class on Sam’s Town’s policy, and understood that she too could be fired
if she failed a test. Prior to the events forming the basis of this lawsuit, Clark was subjected
to testing pursuant to Sam’s Town policy at least once and tested negative for drugs and
alcohol.
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                                  No. 16-60167
account for the positive alcohol sample. Quest then conducted an additional
test for glucose levels in an attempt determine whether Clark’s diabetes (for
which she was taking medication) could account for the positive alcohol
sample.
      On August 28, Clark visited an orthopedist who confirmed the initial
diagnosis of a fractured ankle. The orthopedist recommended as a treatment
plan that Clark wear a boot; remain off work, on bed rest, with her foot
elevated; and use a walker to move around her house.
      On September 12, Lacki spoke with a lab scientist from Quest who told
him that (1) neither the green tea nor the medications Clark was using could
account for the positive alcohol sample; (2) “there is no physical evidence to
indicate the excess alcohol in her system was due to her diabetes” because her
glucose levels were in the normal range; and (3) the urine test for alcohol was
more reliable than the blood test for alcohol because “it registers alcohol in the
system up to 24 hours earlier” and is generally “used in court, not blood tests.”
When Lacki told Pastore that the green tea and medications Clark was using
could not account for the positive alcohol sample, Pastore made the decision to
fire Clark. On September 23, Sam’s Town’s human resources department
notified Clark—who had been cleared by her orthopedist three days prior to
work from a seated position, but was still out of work and receiving workers’
compensation benefits for her fractured ankle—of the termination decision.
      Following her termination, Clark made several return visits to her
orthopedist, with the orthopedist noting steady improvement each time. Clark
was ambulatory and walking with only a light brace by her visit on October 25,
2013, and was fully healed by her final visit on January 13, 2014, less than five
months after her accident.
      Clark obtained her right to sue letter from the Equal Employment
Opportunity Commission on June 25, 2014, and filed the instant suit against
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                                       No. 16-60167
Sam’s Town on September 18, 2014, alleging that Sam’s Town violated the
Americans with Disabilities Act (ADA). 2               Clark asserted that one of the
medications she was taking for her diabetes, Metformin, impacted the alcohol
levels in her urine. She further asserted that Sam’s Town knew or should have
known that she did not drink alcohol, but it nevertheless used the positive
alcohol sample “to be rid of [Clark] because she had a disability”—namely, a
fractured ankle. Sam’s Town moved for summary judgment, and the district
court granted Sam’s Town’s motion. The district court found that Clark failed
to establish that she was, in fact, disabled and thus failed to make out a prima
facie case of discrimination under the ADA. The district court further found
that, even if Clark had made out a prima facie case of discrimination, Clark
failed to show that Sam’s Town’s legitimate, non-discriminatory reason for her
firing—the positive alcohol sample—was pretext for discrimination. Clark
timely appealed.
                            II. STANDARD OF REVIEW
       We review a district court’s grant of summary judgment de novo, viewing
“all facts and evidence in the light most favorable to the non-moving party.”
Juino v. Livingston Parish Fire Dist. No. 5, 717 F.3d 431, 433 (5th Cir. 2013).
Summary judgment is appropriate if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact
exists when the “evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Royal v. CCC & R Tres Arboles, L.L.C., 736 F.3d
396, 400 (5th Cir. 2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)).



       2 Clark also filed suit against Quest, but conceded Quest’s motion to dismiss for failure
to state a claim and stipulated to its dismissal.
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                                  No. 16-60167
                              III. DISCUSSION
      The ADA prohibits employers from terminating employees “on the basis
of disability.” 42 U.S.C. § 12112(a). Here, Clark elected to establish her
discriminatory-termination claim under the burden-shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
EEOC v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014). This framework
required Clark to first establish a prima facie case of discrimination. Id. To
prove her prima facie case, Clark was required to prove that (1) she had a
disability; (2) she was qualified for the job she held; and (3) she was subject to
an adverse employment decision on account of her disability. Id. at 697. On
appeal, the parties disagree on the first element, without contesting the second
or third. Specifically, they dispute whether a simple ankle fracture, completely
healed in less than five months, constitutes a disability under the ADA.
      Clark concedes that “[p]rior to the ADA Amendments Act of 2008, . . . it
was clear that ‘temporary, non-chronic impairments of short duration, with
little or no long term impact’ such as ‘broken limbs,’ were not considered
disabilities under the ADA.” Silva v. City of Hidalgo, 575 F. App’x 419, 423
n.2 (5th Cir. 2014) (per curiam) (unpublished) (quoting 29 C.F.R. pt. 1630 app.,
§ 1630.2(j) (1998)); see also EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606,
619 (5th Cir. 2009). But she argues that the Amendments Act was passed with
the stated purpose of “reject[ing]” what Congress considered narrow
interpretations of a “disability” and “reinstating a broad scope of protection”
under the ADA, Pub. L. No. 110–325, § 2(b), 122 Stat. 3553, 3554 (2008), and
that such impairments qualify as disabilities under the current EEOC
regulations and interpretative guidance implementing the Amendments Act.
See 29 C.F.R. pt. 1630 app., § 1630.2(j)(1)(ix) (2013) (recognizing that a “back
impairment that results in a 20-pound lifting restriction that lasts several
months” may satisfy the definition of a disability). The district court, Clark
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contends, failed to recognize this fact, improperly relying on pre-Amendments
Act case law and regulations.
       Sam’s Town counters that, even under the current EEOC regulations
and interpretative guidance, only “sufficiently severe” temporary impairments
may qualify as disabilities. 29 C.F.R. pt. 1630 app., § 1630.2(j)(1)(ix) (2013).
According to Sam’s Town, the district court properly focused on the severity,
or lack of severity, of Clark’s injury and found it was not sufficiently severe to
rise to the level of a disability, even under the broadened definition of the
Amendments Act.
       Assuming arguendo that Clark is correct that she was, in fact, disabled
at the time of her firing, the district court was nonetheless correct in granting
summary judgment. 3            Sam’s Town has articulated a legitimate, non-
discriminatory reason for firing her: the positive alcohol sample. See Raytheon
v. Hernandez, 540 U.S. 44, 53 (2003). Therefore, to survive summary judgment
under the McDonnell Douglas framework, Clark was required to “offer
sufficient evidence to create a genuine issue of material fact . . . that [Sam’s
Town’s] reason is not true, but is instead a pretext for discrimination.” LHC
Grp., 773 F.3d at 702 (quoting Rachid v. Jack In The Box, Inc., 376 F.3d 305,
312 (5th Cir. 2004)); see also Pinkerton v. Spellings, 529 F.3d 513, 518–19 (5th
Cir. 2008) (per curiam). 4


       3  We need not, and do not, resolve the question of whether Clark was, in fact, disabled
at the time of her accident.
        4 This court has also recognized a mixed-motives alternative, whereby a plaintiff can

survive summary judgment by offering “sufficient evidence to create a genuine issue of
material fact . . . that the defendant’s reason, while true, is only one of the reasons for its
conduct, and another motivating factor is the plaintiff’s protected characteristic.” LHC Grp.,
773 F.3d at 702 (quoting Rachid, 376 F.3d at 312). In the district court, both parties
questioned whether the mixed-motives alternative survived the Supreme Court’s decision in
Gross v. FBL Financial Services, Inc. 557 U.S. 167 (2009). Compare LHC Grp., 773 F.3d at
702 (applying mixed-motives alternative without addressing Gross), with, e.g., Lewis v.
Humboldt Acquisition Corp., 681 F.3d 312, 318–21 (6th Cir. 2011) (en banc) (concluding that
mixed-motives claims are not viable under the ADA in light of Gross). We need not, and do
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       When considered as a whole, we find that the evidence presented would
not allow a reasonable jury to find that Sam’s Town’s proffered reason for firing
Clark—the positive alcohol sample—was pretext for discrimination. Pretext
for discrimination may be established “either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or
‘unworthy of credence.’” Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)
(quoting Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 220 (5th Cir. 2001)).
Clark has not shown she was treated differently than any other employee; at
least since 2009, Sam’s Town has fired every employee who has tested positive
for drugs or alcohol. Further, Clark has not shown that Sam’s Town’s proffered
reason is false; her urine sample was positive for alcohol. Instead, Clark
contends that Sam’s Town’s proffered reason is unworthy of credence because
there is a paucity of evidence indicating she was consuming alcohol at work.
To explain her positive result, Clark posits that the alcohol in her sample was
attributable to her use of Metformin. But she has not presented any evidence
to that effect.     And even if she had, she still would not have necessarily
prevailed in establishing pretext.




not, resolve that question here because Clark has relegated her discussion of the mixed-
motives alternative on appeal to a single footnote and has not provided any separate or
additional evidence or argument in support of that alternative. Thus, Clark has waived any
argument as to a mixed-motives alternative. See Arbuckle Mountain Ranch of Tex., Inc. v.
Chesapeake Energy Corp., 810 F.3d 335, 339 n.4 (5th Cir. 2016) (“Arguments subordinated in
a footnote are ‘insufficiently addressed in the body of the brief,’ and thus waived.” (quoting
Bridas S.A.P.I.C. v. Turkm., 345 F.3d 347, 356 n.7 (5th Cir. 2003))). In any event, the result
in this case would remain the same if we considered a mixed-motives alternative because a
reasonable jury could not conclude that Clark’s alleged disability—her fractured ankle—was
a motivating factor in Sam’s Town’s decision to fire her for essentially the same reasons a
reasonable jury could not infer that Sam’s Town’s proffered reason was pretext for
discrimination. See Keelan v. Majesco Software, Inc., 407 F.3d 332, 341 n.2 (5th Cir. 2005)
(recognizing that evidence was insufficient to establish a fact issue on whether discrimination
was a motivating factor in discharge “for the same reasons” it did not establish a fact issue
on whether the employer’s proffered reason was pretext for discrimination).
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      The focus of the pretext inquiry is not whether the alcohol in Clark’s
sample was, in fact, attributable to her improper consumption of alcohol, but
whether Sam’s Town reasonably believed it was and acted on that basis. See
Waggoner v. City of Garland, 987 F.2d 1160, 1165–66 (5th Cir. 1993) (“[T]he
inquiry is limited to whether the employer believed the allegation in good faith
and whether the decision to discharge the employee was based on that belief.”);
Cervantez v. KMGP Servs. Co., 349 F. App’x 4, 10 (5th Cir. 2009) (per curiam)
(unpublished) (“[A] fired employee’s actual innocence of his employer’s
proffered accusation is irrelevant as long as the employer reasonably believed
it and acted on it in good faith.”); see also Bailey v. Real Time Staffing Servs.,
Inc., 543 F. App’x 520, 524 (6th Cir. 2013) (unpublished); Keys v. Foamex, L.P.,
264 F. App’x 507, 513 (7th Cir. 2008) (unpublished); Graham v. Long Island
R.R., 230 F.3d 34, 44 (2d Cir. 2000). Clark has failed to show that it was
unreasonable for Sam’s Town to rely upon her positive alcohol sample in
making its decision to fire her.
      Sam’s Town “went through a reasoned process” to determine whether
there was a plausible account (other than Clark’s having consumed alcohol) for
the positive alcohol sample and was told by Quest’s lab scientist that there was
not. Bailey, 543 F. App’x at 524. In the absence of any alternative explanation
for the positive result, Sam’s Town had to decide whether to credit Clark’s
statements and its subjective perceptions or to credit the statements of Quest’s
lab scientist and the objective result of her positive alcohol sample. Sam’s
Town’s decision to credit the latter was reasonable under the circumstances
and does not serve to establish pretext. See Bailey, 543 F. App’x at 524 (“[The
employer’s] decision to credit the medical review officer’s [story over the
plaintiff’s] does not support an inference of discriminatory animus.”); Graham,
230 F.3d at 44 (“Reasonable reliance by an employer on a laboratory test, even
where misplaced, does not provide any basis for a jury to find pretext.”); see
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                                 No. 16-60167
also, e.g., Hunter v. Union Pac. R.R. Co., No. H-11-3408, 2013 WL 3229910, at
*7–9 (S.D. Tex. June 25, 2013); Grant v. Select Specialty Hosp.–S. Dall., Inc.,
No. 3:09-CV-1303-K, 2010 WL 3606029, at *3 (N.D. Tex. Sept. 15, 2010); Hall
v. Smurfit–Stone Container Enters., Inc., No. 3:07-CV-0501-G, 2008 WL
3823252, at *4–5 (N.D. Tex. Aug. 14, 2008). Irrespective of whether Sam’s
Town’s decision was the proper one, Clark has not shown that it was one
motivated by discrimination, let alone discrimination on the account of a
disability. Accordingly, the district court properly granted summary judgment
on Clark’s ADA claim. See Bryant v. Compass Grp. USA Inc., 413 F.3d 471,
478 (5th Cir. 2005) (“Management does not have to make proper decisions, only
non-discriminatory ones.”); see also LeMaire v. La. Dep’t of Transp. & Dev., 480
F.3d 383, 391 (5th Cir. 2007).
                             IV. CONCLUSION
      In sum, we agree with the district court that Sam’s Town is entitled to
an award of summary judgment. Therefore, the judgment of the district court
is AFFIRMED.




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