               IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT

                        ____________________

                           Summary Calendar
                          Case No. 02-60413
                     __________________________


GEORGE O LAMBUS

     Plaintiff-Appellant,

v.


CITY OF JACKSON FIRE DEPARTMENT


     Defendant-Appellee.

         ___________________________________________________

             Appeal from the United States District Court
               for the Southern District of Mississippi
                           (3:01-CV-524-LN)
         ___________________________________________________

                           November 13, 2002


Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM*:

     Plaintiff-appellant George O. Lambus challenges the district

court’s ruling granting the motion for summary judgment by the

Defendant City of Jackson Fire Department (“JFD”). For the reasons

stated below, we affirm.


     *
       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this opinion should not be published and is not precedent except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.

                                   1
                           FACTUAL PREDICATE

     Lambus claims JFD discriminated against him because of his age

(fifty-three) and his alleged disability (diabetes, hypertension,

and back problems) and unlawfully retaliated against him for filing

charges with the EEOC in violation of both the ADEA and the ADA.

The alleged facts giving rise to his claims of discrimination

originate from his time with the JFD as a firefighter recruit

trainee in August and September 2000.2

     On   March   27,   2000,   the   JFD   allegedly   rejected   Lambus’s

application   for   the   position     of   firefighter.3    Allegedly   in

response, on August 8, 2000, Lambus filed a charge with the EEOC,

alleging age discrimination.          Lambus was hired as a firefighter

recruit trainee by the JFD shortly thereafter.               Following an

altercation between Lambus and an instructor at the JFD Training

Academy, the JFD Chief, Raymond J. McNulty, formally terminated


     2
          The district court stated that it was “unclear” whether
Lambus was also claiming that he was subjected to a hostile work
environment. As Lambus does not urge this point on appeal, the
issue is not before this court. See Melton v. Teachers Ins. &
Annuity Ass’n of Am., 114 F.3d 557, 561 (5th Cir. 1997) (issues
not raised in the statement of the issues or body of the brief
are waived and are not considered on appeal); Carmon v. Lubrizol
Corp., 17 F.3d 791, 794 (5th Cir. 1994) (issues not raised on
appeal are waived).
     3
          On this point, the JFD claims to have never rejected
Lambus’s application. Rather, it alleges that all of Lambus’s
paperwork had not yet been received by the JFD to either accept
or reject him into its training academy. It alleges that Lambus
read in the newspaper that a new class of recruits was to begin
training at the Academy and because he had not heard from JFD
yet, assumed his application had been rejected.

                                       2
Lambus’s employment with the JFD.         The termination letter (dated

September 26, 2000) attributes the termination to Lambus’s failure

to   master     relevant   firefighting     skills   and   to   acts    of

insubordination.     On October 16, 2000, Lambus filed an amended

charge with the EEOC, alleging unlawful retaliation. He thereafter

received a right to sue letter from the EEOC and subsequently filed

this lawsuit.

                           STANDARD OF REVIEW

     This court reviews a grant of summary judgment de novo,

applying the same standards as the district court. Daniels v. City

of Arlington, 246 F.3d 500, 502 (5th Cir.), cert. denied, 122 S.

Ct. 347 (2001).    Summary judgment should be granted if there is no

genuine issue of material fact for trial and the moving party is

entitled to judgment as a matter of law.       FED. R. CIV. P. 56(c).   In

determining if there is a genuine issue of material fact, the court

reviews the evidence in the light most favorable to the non-moving

party.    Daniels, 246 F.3d at 502.        However, when the non-moving

party bears the burden of proof on a claim, the moving party may

obtain summary judgment without providing evidence that negates the

non-moving party’s claim.     See Celotex Corp. v. Catrett, 477 U.S.

317, 322-25 (1986).    Rather, the moving party need only highlight

the absence of evidence in support of the non-moving party’s claim.

See id.

                                ANALYSIS



                                   3
     A.    ADEA

     The Age Discrimination in Employment Act (“ADEA”) states that

it   is   unlawful   “to    discharge     any   individual   or    otherwise

discriminate      against    any   individual     with   respect    to   his

compensation,     terms,    conditions,   or    privileges   of   employment

because of such individual’s age.”         29 U.S.C. § 623(a)(1) (2000).

To establish a prima facie case of discrimination under the ADEA,

Lambus is required to show that (1) he is a member of a protected

class – those persons over the age of forty, (2) he is qualified

for the position, (3) he suffered an adverse employment action, and

(4) he was either replaced by someone outside of the protected

class, replaced by someone younger, or otherwise discharged because

of age. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,

142 (2000); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 232-33

(5th Cir. 2000); Bauer v. Albemarle, 169 F.3d 962, 968 (5th Cir.

1999).

     In its Memorandum Opinion, the district court stated that,

     While it is undisputed that Lambus was in a protected
     class and was subjected to an adverse employment
     decision, he has submitted no evidence, in response to
     the JFD’s motion, that he was qualified to be a fireman.
     By contrast, the JFD has submitted affidavits from Deputy
     Chief C.E. Graham and Instructor Stephen Parkman in which
     both state that Lambus was ‘unable to perform certain
     tasks required by the Fire Academy’s training courses.’”

Rec. at 5 (emphasis added).        We concur with the district court’s

finding that no material fact issue persists as to whether Lambus



                                     4
was qualified to graduate from the JFD Training Academy.                 The

overwhelming and uncontroverted evidence presented both to the

district court and to this court demonstrates that, although Lambus

may have met the minimum qualifications to be admitted to the

Training Academy, he did not possess the minimum qualifications,

abilities or attitude to complete the Training Academy course work

in order to become a firefighter.4

     Further, even assuming that Lambus was qualified for the

position of firefighter, the record demonstrates that JFD has

proffered a legitimate, non-discriminatory justification for his

termination – undisputed acts of insubordination by Lambus.              See

McDonnell   Douglas   Corp.   v.   Green,   411   U.S.   792,   802   (1973)

     4
          Indeed, conclusory allegations represent the sum total
of Lambus’s evidence. For example, in response to JFD’s motion
for summary judgment, Lambus simply states that,

     The Court dismissed my motion for a summary judgement
     [sic] and the Defendant’s should be dismissed for the
     same reasons. On April 2, 2002, before Judge Nicols, I
     offered to settle this case . . . the Defendant should
     have taken it. Theresa Kiely at the Clarion-Ledger
     will reveal plenty about my case before a Jury!

In addition to the conclusory-based allegations and mere threats
of proof, Lambus submits a complaint against the Jackson Area
Office of the EEOC for advising him to drop his claims in this
case, in which he states, “The Jackson Area Office is populated
by middle-class, incompetent Negroes who want to sit on their
asses and draw a salary without working for it.” This type of
evidence is plainly unrelated to the issue before the district
court and will not forestall summary dismissal of Lambus’s
claims. See, e.g., Celotex Corp., 477 U.S. at 328 (White, J.,
concurring) (mere conclusory allegations are not competent
summary judgment evidence); Macklin v. City of New Orleans, 293
F.3d 237, 241 (5th Cir. 2002); Eason v. Thaler, 73 F.3d 1322,
1325 (5th Cir. 1996).

                                    5
(discussing the burden analysis under Title VII); Russell, 235 F.3d

at 222 (holding that the McDonnell Douglas analysis is applicable

to the ADEA); Bauer, 169 F.3d at 966 (“The same evidentiary

procedure for allocating burdens of production and proof applies to

discrimination claims under both [Title VII and the ADEA]”).    The

record on this point is clear.       The evidence demonstrates that

Lambus acted to instructions by his training instructor in a manner

perceived to be defiant by his superiors.5      See Schackelford v.

Deloitte & Touche, L.L.P., 190 F.3d 398, 408-09 (5th Cir. 1999)

(the relevant summary judgment issue is whether “[JFD’s] perception

of [Lambus’s] performance, accurate or not, was the real reason for

his termination”).   JFD’s position on this point is supported by

contemporaneous records of Lambus’s acts of alleged insubordination

and deficient performance by other instructors.   See Evans v. City

of Houston, 246 F.3d 344, 355 (5th Cir. 2001) (looking to whether

     5
          Deputy Chief Charles Graham described the incident to
Chief Raymond McNulty in a letter dated September 20, 2000,

     I am writing this letter in reference to an incident
     reported to me which occurred today around 10:00 a.m.
     Recruit Lambus was given an order by Instructor Parkman
     to stop running laps and walk it out. He did not stop
     running, held up two fingers indicating he had two more
     laps to go. After a brief altercation between Recruit
     Lambus and Instructor Parkman, Recruit Lambus then
     proceeded to walk as instructed. This type of behavior
     undermines the training program and disrupts the esprit
     de corps. This incident clearly shows disrespect by
     the recruit.

In his affidavit, Lambus himself further states that when the
instructor became angry with him, Lambus demanded that the
instructor refer to him as “Mr. Lambus” or “Recruit Lambus.”

                                 6
there       is    “contemporaneous       evidence       in     the   record     of    any

disciplinary action” taken against the employee). As Lambus failed

at the district court to rebut this evidence with any response

worthy of note, the district court’s finding that no genuine fact

issues exist on this claim is supported by the record.

      B.         ADA

      To establish a prima facie case of discrimination under the

American with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a)

(2000),      Lambus    must    demonstrate        that       “[he]   is   a   qualified

individual with a disability, and that the negative employment

action occurred         because     of   the    disability.”         Sherrod     v.   Am.

Airlines, Inc., 132 F.3d 1112, 1119 (5th Cir. 1998).                      A “qualified

individual with a disability” is defined in the ADA as someone who

has     a    disability       but    who,       “with    or     without       reasonable

accommodation,         can    perform    the      essential      functions      of    the

employment position that such individual holds or desires.” 42

U.S.C. § 12111; Giles v. Gen. Elec. Co., 245 F.3d 474, 483 (5th

Cir. 2001).

      As discussed in reference to Lambus’s ADEA claim, the summary

judgment evidence indicates that Lambus failed to produce any

evidence that he was qualified for the position of firefighter.

Moreover, as found by the district court, Lambus produced no

evidence to show that he was “disabled” within the meaning of the

ADA – that is, that he suffered from an “impairment that prevents

or severely restricts” him from “doing activities that are of
                                            7
central importance to most people’s daily lives.”                 Toyota Motor

Mfg. v. Williams, 122 S. Ct. 681, 691 (2002).                  Although Lambus

claims to have suffered from diabetes, hypertension, and back

problems during his employment with JFD, he was rated by Dr. Howard

T.   Katz as     having   “0%   impairment   to   the   body    as   a   whole.”6

Further, his response to JFD’s motion for summary judgment did not

point the district court to any major life activity that was

severely restricted or impaired by his alleged disabilities.                  In

these      circumstances,   support   exists   for   the   district      court’s

finding that Lambus cannot meet the ADA’s test for disability

because the evidence does not reveal that his “impairment’s impact

[is] permanent or long term.”         Toyota Motor Mfg., 122 S. Ct. At

691.       Thus, there is no genuine issue for a jury to decide on

Lambus’s ADA claim.

       C.     Retaliation

       To establish a prima facie retaliation claim under the ADA and

ADEA, Plaintiff must show that, (1) he is qualified for the job in

question, (2) he engaged in a protected activity, (3) there was an

adverse employment action, and (4) a causal link existed between


       6
          Lambus raises arguments on appeal that his alleged
chest pains, irregular heart rate, and high blood pressure also
constitute disabilities within the meaning of the ADA. As these
arguments were not raised before the district court, they were
waived by Lambus. Stokes v. Emerson Elec. Co., 217 F.3d 353, 358
n. 19 (5th Cir. 2000) (holding that arguments not raised in the
district court cannot be asserted for the first time on appeal);
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“As a
general rule, this Court does not review issues raised for the
first time on appeal.”).
                                8
the   protected   activity    and     the    adverse   employment   action.

Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 260 (5th Cir.

2001) (“We have never expressly made qualification a prima facie

element of an ADEA retaliation claim, but today we decide that such

an element is necessary . . . [b]ecause, in regard to other types

of discrimination claims . . . it would be illogical not to require

[it.]”).     The summary judgment evidence demonstrates no genuine

factual dispute as to whether Lambus was qualified for the position

of firefighter because Lambus simply did not produce any competent

summary judgment evidence to counter JFD’s evidence that he was not

qualified.    His retaliation claims thus fail.

                                  CONCLUSION

      The   judgment   of   the   district     court   is   AFFIRMED.   All

outstanding motions are DENIED as moot.




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