                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                 MAR 25 1998
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                        Clerk

 SETH WAITES,
               Plaintiff - Appellant,                         No. 97-1003
 v.                                                       (D.C. No. 95-S-2879)
 MCI TELECOMMUNICATIONS                                         (D. Colo.)
 CORPORATION, a Delaware
 corporation,
               Defendant - Appellee.


                              ORDER AND JUDGMENT*


Before PORFILIO, McKAY, and LUCERO, Circuit Judges.


       Mr. Seth Waites (Plaintiff) appeals an order of the district court granting summary

judgment to Defendant, MCI Telecommunications Corporation (MCI). Plaintiff alleges

that his discharge from MCI was motivated by an anti-disability bias, in violation of the

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. See Appellant’s Br.

at 2. MCI contends that Plaintiff was discharged because he violated MCI’s conflict-of-

interest policy by (1) hiring his wife to provide him with sign language interpreting

services; and (2) using his wife’s interpreting services agency, Sign Language Services


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
(SLS), to personally profit by overcharging MCI for SLS’s services. See Appellee’s

Answer Br. at 10. Plaintiff contends that MCI’s proffered reasons for firing him are

pretextual and that MCI’s real reason for his discharge violates the ADA. See

Appellant’s Br. at 2.

       We review a district court’s grant of summary judgment de novo, applying the

same legal standard as the district court. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th

Cir. 1996). Summary judgment is appropriate when there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.

Civ. P. 56(c); White v. York Int’l Corp., 45 F.3d 357, 360 (10th Cir. 1995).

       To qualify for relief under the ADA, a plaintiff must establish (1) that he is
       a disabled person within the meaning of the ADA; (2) that he is qualified
       . . . with or without reasonable accommodation . . . to perform the essential
       function of the job; and (3) that the employer terminated him because of his
       disability.

White, 45 F.3d at 360-61. Once a plaintiff establishes a prima facie case of

discrimination, the burden of production shifts to the employer. See McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802 (1973) (mandating this process in the context of a Title

VII claim); Morgan v. Hilti Inc., 108 F.3d 1319, 1321-22, 1323 (10th Cir. 1997); accord

Kocsis v. Multi-Care Management, Inc., 97 F.3d 876, 883 (6th Cir. 1996). The employer

must then present evidence of a facially nondiscriminatory reason for the challenged

employment decision. See Morgan, 108 F.3d at 1323. “If the [employer] carries that

burden of production, plaintiff must then prove ‘by a preponderance of the evidence’ that


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the [employer’s] proffered reasons were not its true reasons, but were merely a pretext for

illegal discrimination.” Kocsis, 97 F.3d at 883, (quoting Texas Dep’t of Community

Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)); see Morgan, 108 F.3d at 1321. To

defeat a motion for summary judgment the plaintiff must show that there is a genuine

dispute regarding whether the employer’s reasons for the termination were pretextual or

unworthy of belief. See Morgan, 108 F.3d at 1321; Randle v. City of Aurora, 69 F.3d

441, 451-52 (10th Cir. 1995).

       Plaintiff claims that a question of material fact exists, i.e., whether he was actually

discharged because of his disability. See Appellant’s Br. at 7. Plaintiff contends that

there is sufficient evidence to believe that MCI terminated him because of his disability.

See id. He supports this claim with allegations that MCI officials complained about the

expense of hiring interpreters for him and that MCI officials knew that Plaintiff’s wife

was providing him with interpretive services. See id. Plaintiff argues that if MCI

officials knew his wife was interpreting for him, they at least impliedly approved of the

situation, and, therefore, that firing him for this practice was pretextual. See id.

       We hold Plaintiff did not produce enough evidence to prove MCI’s stated reasons

for firing him were pretextual, or unworthy of credence, under the preponderance

standard. MCI’s stated reasons for terminating Plaintiff are that Plaintiff violated MCI’s

employment policies, see Appellant’s Br. App. at 208, by (1) using his wife to provide

interpretive services; and (2) using SLS to personally profit from the company’s


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association with MCI. The evidence reveals that MCI’s conflict-of-interest policy

prohibited Plaintiff from employing his wife as a sign language interpreter. See id. at

204-05, 207. The evidence demonstrates that Plaintiff’s wife established a sign language

interpretive services company and that the company billed MCI a fee of $25.00 per hour

for its services while paying its interpreters only $15.00 per hour. See id. at 47, 228. The

evidence establishes that MCI accommodated Plaintiff’s disability at reasonable expense

to the company, see Appellee’s Supplemental App. at 67-85, until a third party informed

MCI of Plaintiff’s actions. See id. at 90, 158. Although Plaintiff maintains that MCI

knew he was using his wife as an interpreter, the evidence in the record supports the

conclusion that few MCI employees were acquainted with Plaintiff’s wife, and those

employees had no knowledge of the wife’s connection to SLS or the payments being

made to SLS by MCI. See id. at 206-08, 212. Additionally, there is evidence in the

record that Plaintiff asked others to hide his wife’s identity and his relationship with SLS,

see id. at 92, 158, 163, 169-70, belying his contention that MCI knew and approved of the

situation.

       The district court found that “Plaintiff’s evidence does not show, by a

preponderance of the evidence, that MCI’s proffered nondiscriminatory reason for his

termination is unworthy of belief and that illegal discrimination took place. The court

concludes that a jury could not reasonably reject MCI’s explanation for its decision[].”

Appellant’s Br. App. at 302. We conclude that there was no error in the district court’s


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decision.

      AFFIRMED.

                        ENTERED FOR THE COURT


                        Monroe G. McKay
                        Circuit Judge




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