     Case: 15-20471   Document: 00513523737     Page: 1   Date Filed: 05/26/2016




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT

                                                                  United States Court of Appeals

                                 No. 15-20471
                                                                           Fifth Circuit

                                                                         FILED
                                                                     May 26, 2016

DANNY J. DELAVAL,                                                   Lyle W. Cayce
                                                                         Clerk
             Plaintiff - Appellant

v.

PTECH DRILLING TUBULARS, L.L.C.,

             Defendant - Appellee


                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, SOUTHWICK, and HAYNES, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Danny Delaval filed this lawsuit against PTech Drilling Tubulars, LLC,
claiming the company violated the Americans with Disabilities Act in
terminating his employment. The district court granted summary judgment in
PTech’s favor. We AFFIRM.


                FACTS AND PROCEDURAL BACKGROUND
      PTech Drilling Tubulars, LLC, is a small company that “operates
machine shop facilities specializing in oilfield drilling pipe.” In 2009, PTech’s
predecessor hired Danny Delaval as a manual machinist at its Conroe, Texas
facility. Delaval was briefly promoted to shop manager in mid-2013, but was
demoted several months later to his previous position after receiving
    Case: 15-20471   Document: 00513523737      Page: 2   Date Filed: 05/26/2016



                                 No. 15-20471
disciplinary warnings for failure to properly manage employees.
      In early March 2014, Delaval told supervisor Jesse Edwards that his
health was suffering and that he needed to undergo medical testing. On
Friday, March 14, Delaval and Murray Dallas, a PTech owner, exchanged e-
mails regarding Delaval’s conversation with Edwards. Delaval told Dallas that
he was going to the doctor on Monday, March 17, and that he would “need to
use any days, or vacation time [he had] available.” Dallas responded that
Delaval needed to “get some rest and get back to the Doc on Monday so he can
get you the proper treatment.”
      On Tuesday, March 18, Delaval e-mailed again to let Dallas know that
Delaval was “cancer free” but had been diagnosed with kidney stones and an
enlarged spleen. Delaval told Dallas that Delaval hoped he would “be back at
work soon.” Dallas responded that he needed to “follow doctor[’]s orders” and
to keep the company “informed as to what [n]eeds to be done.” Dallas told
Delaval that he was leaving the country and would not have cell access until
April 1.
      Delaval finally returned to work on Tuesday, March 25. The parties
dispute whether Delaval communicated with anyone at PTech, aside from
Dallas, while he was absent. In his deposition, Delaval testified that he was
in constant contact with supervisor Chris Trimble and office manager April
Grayson. When pressed about conversations on specific dates, though, Delaval
waffled, providing that he was not sure that he was in communication with
anyone “on a daily basis.” Edwards testified that at least one supervisor,
Trimble, attempted to contact Delaval when he was absent but Delaval never
responded. Edwards also testified that he asked Delaval for a doctor’s note
corroborating his excuse for his absences, but Delaval never provided any
documentation.   Delaval testified, however, that he provided all relevant
medical documentation to Grayson. The record contains only one medical
                                      2
     Case: 15-20471       Document: 00513523737         Page: 3    Date Filed: 05/26/2016



                                      No. 15-20471
document, a diagnosis dated about one month after Delaval was fired.
       On March 27, PTech fired Delaval for violating its attendance policy,
which lists “failing to show up at work for more than three . . . consecutive days
without notifying a supervisor” as grounds for immediate dismissal. After
exhausting his administrative remedies, Delaval filed this lawsuit alleging
violations of the Americans with Disabilities Act (“ADA”), Age Discrimination
in Employment Act, and Chapter 21 of the Texas Labor Code. PTech moved
for summary judgment on Delaval’s ADA disability and age discrimination
claims, which the district court granted. The district court also sua sponte
granted summary judgment for PTech on Delaval’s ADA failure-to-
accommodate claim. Delaval timely appealed his ADA claims only. 1


                                     DISCUSSION
       Summary judgment is reviewed de novo and is proper “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.’” EEOC v. LHC Grp., Inc., 773 F.3d
688, 694 (5th Cir. 2014) (quoting FED. R. CIV. P. 56(a)). If the “evidence is such
that a reasonable jury could return a verdict for the nonmoving party,” a
genuine dispute of material fact exists and summary judgment is precluded.
Id. Facts and evidence are viewed “in the light most favorable to the non-
moving party.” Id.


I.     Disability Discrimination
       We first examine Delaval’s contention that PTech violated the ADA by




       1 In his brief, Delaval stated that he was abandoning his age discrimination claim.
Because he failed to brief issues concerning his state law claims, we treat them as abandoned
as well. See Huckabay v. Moore, 142 F.3d 233, 238 n.2 (5th Cir. 1998).
                                             3
     Case: 15-20471       Document: 00513523737         Page: 4      Date Filed: 05/26/2016



                                       No. 15-20471
firing him because he was disabled. 2
       The ADA prohibits an employer from “discriminat[ing] against a
qualified individual on the basis of disability” by, among other things,
terminating the individual’s employment. 42 U.S.C. § 12112(a). Because
Delaval offers only circumstantial evidence to prove his claim, we apply the
McDonnell Douglas burden-shifting framework. See LHC Grp., 773 F.3d at
694 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Under
this framework, an employee must show: (1) “he has a disability”; (2) “he was
qualified for the job”; and (3) “he was subject to an adverse employment
decision on account of his disability.” Id. at 697. Once an employee has
established his prima facie case, the burden shifts to the employer to
“articulate    a   legitimate,     nondiscriminatory        reason     for”   the   adverse
employment action. Id. at 694. The employee must then present evidence that
the articulated reason is pretextual. Id. We apply a “motivating factor” test,
which provides that “discrimination need not be the sole reason for the adverse
employment decision . . . [so long as it] actually play[s] a role in the employer’s
decision making process and ha[s] a determinative influence on the outcome.”
Id. at 702 (alterations in original).
       Here, the district court granted summary judgment in favor of PTech
because Delaval did not present any evidence that his impairments
“substantially limit[ed] one or more major life activities,” and because Delaval
failed to rebut PTech’s legitimate, non-discriminatory reason for firing him.




       2 Delaval also argues in a footnote in his initial brief that PTech “‘regarded’ him” as
disabled. See 42 U.S.C. § 12102(1)(C) (“The term ‘disability’ [can also] mean[] . . . being
regarded as having such an impairment . . . .”). Arguments in a footnote are “insufficiently
addressed in the body of the brief” and are therefore waived. Bridas S.A.P.I.C. v. Gov’t of
Turkm., 345 F.3d 347, 356 n.7 (5th Cir. 2003). Regardless, we need not decide whether
Delaval was regarded as disabled because PTech articulated a legitimate, nondiscriminatory
reason for firing him that Delaval failed to rebut.
                                              4
     Case: 15-20471       Document: 00513523737         Page: 5    Date Filed: 05/26/2016



                                      No. 15-20471
We address the district court’s latter conclusion only. 3
       The evidence in the record is scant, but PTech asserts the evidence shows
the company has consistently stated an entirely lawful reason for dismissing
Delaval: he violated the company’s attendance policy. This is supported by
Edwards’s deposition testimony and the written termination notice PTech
issued to Delaval. Delaval admitted in his deposition that he received a copy
of the employee handbook and knew about the attendance policy.
       Delaval, though, claimed in district court that he had been in constant
contact with PTech between March 18 and 25. On appeal, he points to his
deposition testimony supporting that contention and the e-mail exchange with
Dallas. Delaval asserts that the e-mails prove PTech knew about his health
problems and gave him permission to be away from work. PTech responds that
Delaval was unable to provide any information during his deposition about
whom he spoke to between March 18 and 25 and when those communications
occurred.    Regardless, PTech argues, the evidence in the record does not
indicate that Delaval’s termination occurred for discriminatory reasons.
       In response to a motion for summary judgment, an employee must
present     “substantial       evidence”      that     the     employer’s       legitimate,
nondiscriminatory reason for termination is pretextual. Burton v. Freescale
Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir. 2015). Pretext is established
“either through evidence of disparate treatment or by showing that the
employer’s proffered explanation is false or ‘unworthy of credence.’” See Laxton



       3The district court determined that a detailed affidavit submitted by Delaval about
his health problems did not establish an issue of material fact regarding whether his
impairments “substantially limit[ed him in] one or more major life activities.” See 42 U.S.C.
§ 12102(1)(A). The 2008 amendment to the ADA, however, instructs a court to focus on
whether the employer “complied with [its] obligations,” and not on determining whether an
employee is disabled. Neely v. PSEG Tex., Ltd. P’ship, 735 F.3d 242, 245 (5th Cir. 2013).
Because we affirm the district court on other grounds, we need not decide if Delaval provided
enough evidence of a disability to survive summary judgment.
                                             5
      Case: 15-20471     Document: 00513523737         Page: 6    Date Filed: 05/26/2016



                                      No. 15-20471
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)). Delaval does not contend he
was treated differently than any other employee. Further, while the e-mails
between Dallas and Delaval may raise a fact question about whether any of
Delaval’s absences were authorized, they do not indicate that PTech’s stated
reason for firing Delaval was a pretext. “Management does not have to make
proper decisions, only non-discriminatory ones.” See Bryant v. Compass Grp.
USA Inc., 413 F.3d 471, 478 (5th Cir. 2005). While Delaval may have believed
he suffered discrimination, there is no evidence that such a belief was
reasonable. A “subjective belief of discrimination . . . cannot be the basis of
judicial relief.” See EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1448 (5th
Cir. 1995). Summary judgment was properly granted to PTech on Delaval’s
disability discrimination claim.


II.    Reasonable Accommodation
       We now turn to Delaval’s failure-to-accommodate claim. 4                 The ADA
requires an employer to make “reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a
disability . . . .” 42 U.S.C. § 12112(b)(5)(A). “An employee who needs an
accommodation . . . has the responsibility of informing [his] employer.” EEOC
v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009). Special
words, like “reasonable accommodation,” need not be uttered, but the employee
“must explain that the [proposed] adjustment in working conditions . . . is for
a medical condition-related reason . . . .” Id. Once an accommodation is
requested, an employer must engage in the “interactive process,” or a flexible



       4 Again, we assume without deciding that Delaval has established an issue of material
fact regarding whether he is ADA disabled.
                                             6
    Case: 15-20471     Document: 00513523737      Page: 7   Date Filed: 05/26/2016



                                  No. 15-20471
dialogue, with the employee with the goal of finding an appropriate
accommodation for the limitation. Id. An employer that fails to engage in the
interactive process in good faith violates the ADA. Griffin v. United Parcel
Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011).       Where the breakdown “is
traceable to the employee,” though, there is no violation. Id.
      In the present case, without providing any notice to Delaval, the district
court granted PTech sua sponte summary judgment on Delaval’s failure-to-
accommodate claim. The court held that even if Delaval was disabled, he never
asked for an accommodation because permission to take medical tests and
indefinite leave are not reasonable accommodations.
      Delaval first argues that the district court erred in granting summary
judgment where PTech’s motion did not address that claim. Rule 56(a)
contemplates a filed motion, but a district court may grant summary judgment
without a motion provided the party opposed has notice.           Leatherman v.
Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1397–
98 (5th Cir. 1994). Where a district court fails to provide notice, the error is
considered harmless if the party opposed “has no additional evidence anyway
or if . . . the appellate court evaluates all of the . . . additional evidence and
finds no genuine issue of material fact.” Id. at 1398. Delaval did not file a
motion for reconsideration below, nor has he described in briefing on appeal
any additional evidence that should have been considered by the district court
or explained why additional discovery was necessary. Accordingly, the district
court’s failure to provide notice was harmless.
      On the merits, Delaval again leans on the e-mail exchange between him
and Dallas. That conversation, Delaval asserts, shows that he requested —
and was granted — an accommodation in the form of a limited amount of time
off for medical testing. Delaval contends that terminating his employment
constituted a withdrawal of that accommodation, which violated the ADA.
                                        7
    Case: 15-20471     Document: 00513523737     Page: 8   Date Filed: 05/26/2016



                                  No. 15-20471
      PTech, however, argues that, at best, the evidence shows only that
Delaval asked permission to be away from work for one day (March 17). Even
if this amounts to an accommodation request, PTech contends that by failing
to make contact with anyone at the company during his week-long absence,
Delaval stymied the interactive process. Regardless, PTech posits, Delaval
requested indefinite leave, which is not a reasonable accommodation.
      Both parties are correct in some sense. Time off, whether paid or unpaid,
can be a reasonable accommodation, but an employer is not required to provide
a disabled employee with indefinite leave.         See Rogers v. Int’l Marine
Terminals, Inc., 87 F.3d 755, 759–60 (5th Cir. 1996) (indefinite leave); U.S.
EQUAL EMP’T OPPORTUNITY COMM’N, ENFORCEMENT GUIDANCE: REASONABLE
ACCOMMODATION AND UNDUE HARDSHIP UNDER THE AMERICANS WITH
DISABILITIES ACT (2002), 2002 WL 31994335, at *14–17 (paid or unpaid leave).
We decline to decide whether Delaval requested a reasonable accommodation,
as disputed facts are involved. Instead, we assume that the interactive process
was triggered and affirm summary judgment in favor of PTech by concluding
that Delaval fatally hindered that process. See Holtzclaw v. DSC Commc’ns
Corp., 255 F.3d 254, 258 (5th Cir. 2001) (authorizing affirmance “on any
ground supported by the record, even if it is different from that relied on by the
district court”).
      In its Enforcement Guidance, the EEOC provides that “[a]n employer
may require an employee to provide documentation . . . sufficient to
substantiate” the limitation that allegedly requires an accommodation. U.S.
EQUAL EMP’T OPPORTUNITY COMM’N, ENFORCEMENT GUIDANCE: DISABILITY-
RELATED INQUIRIES AND MEDICAL EXAMINATIONS OF EMPLOYEES UNDER THE
AMERICANS WITH DISABILITIES ACT (2000), 2000 WL 33407181, at *10. “[T]he
employer need not take the employee’s word for it that [he] . . . has an illness
that may require special accommodation.” EEOC v. Prevo’s Family Mkt., Inc.,
                                        8
    Case: 15-20471      Document: 00513523737   Page: 9   Date Filed: 05/26/2016



                                 No. 15-20471
135 F.3d 1089, 1094–95 (6th Cir. 1998). Where an employee refuses to provide
such documentation, we have held that he causes a breakdown in the
interactive process that may preclude an employer’s liability. See Griffin, 661
F.3d at 225.
      In his deposition, Edwards testified that he asked Delaval to produce
proof of his whereabouts during his week-long absence, but Delaval never came
forward with so much as a doctor’s note. Delaval does not deny that PTech
asked him for a doctor’s note, but he attempts to create a fact question about
whether he turned over relevant medical documents by citing his deposition
testimony that he gave PTech “all the test results, copies of the arm bands,
[and] prescriptions.”    The thin record, though, contains only one medical
document Delaval attached to his response to PTech’s summary judgment
motion. The document, a diagnosis from one of Delaval’s doctors, was created
almost one month after Delaval was fired.
      When asked during oral argument about the lack of relevant medical
documentation, Delaval’s counsel said his adversary’s assertion below was that
Delaval was fired because he failed to show up for work or call any of his
supervisors, not because he failed to provide PTech with proof of his
whereabouts during his week-long absence. Delaval’s counsel said he had no
notice that any documentation submitted to PTech was “insufficient,” and that
he would have approached summary judgment and appeal “differently” had he
known that was PTech’s position.
      In its motion before the district court, however, PTech contended
Edwards provided Delaval a chance to preserve his job if he would submit a
doctor’s note, but Delaval never did. The district court’s opinion, moreover,
states that “Delaval has not produced a doctor’s note or report specifying the
tests he took or his condition during his absence; he has not shown that he was
unable to work, much less report [to work].” Although PTech’s argument and
                                       9
   Case: 15-20471     Document: 00513523737      Page: 10   Date Filed: 05/26/2016



                                 No. 15-20471
the district court’s finding were in relation to Delaval’s disability
discrimination claim, they are just as relevant to Delaval’s allegation that
PTech failed to accommodate him. Delaval did not attach any relevant medical
documents disputing PTech’s position to his opposition to summary judgment,
file a motion for reconsideration below, or rebut the district court’s finding on
appeal with anything but his own testimony. We conclude that there was
adequate notice that the lack of medical evidence was a key issue here, and
that Delaval simply failed to rebut PTech’s contention that it never received a
doctor’s note or other relevant documents.
      In sum, PTech was acting lawfully in asking Delaval to turn over
documentation corroborating his contention that he was undergoing medical
testing during his week-long absence. See generally Griffin, 661 F.3d at 225.
Based on the record evidence before us, a reasonable juror could only conclude
that Delaval caused a breakdown in the interactive process by failing to
provide the documentation requested.         See id.   Summary judgment was
properly granted in PTech’s favor on Delaval’s failure-to-accommodate claim.
      AFFIRMED.




                                       10
