           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         January 30, 2008

                                       No. 06-51631                   Charles R. Fulbruge III
                                                                              Clerk

JOSEPH GRUBIC

                                                  Plaintiff–Appellant
v.

CITY OF WACO

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas,
                                  Waco Division
                              USDC No. 6:04-CV-415


Before GARZA, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       In this ADA retaliation case, Joseph Grubic asks the court to reverse the
district court’s grant of summary judgment in favor of the City of Waco and to
remand the case for trial. Because Grubic presents no issue that could provide
this relief, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                    No. 06-51631

                                         I
      Grubic worked for Waco at the Cameron Park Zoo for more than two
decades. He was terminated in late 2003. During his last nine months of
employment, Grubic helped persons with physical disabilities on three occasions.
The first occasion involved the closing of the Zoo’s petting zoo. Chris Elkins was
a disabled petting zoo employee.         The petting zoo closed, and Grubic
unsuccessfully tried to find a new job for Elkins. Elkins ultimately filed a
grievance with Waco’s EEO Staffing Officer. The Zoo Director responded to the
grievance by writing a letter to which he signed Grubic’s name, without Grubic’s
knowledge or consent. The second occasion involved the Zoo’s Ranch House.
The Ranch House had a wheelchair-accessible entrance; that entrance, however,
was temporarily blocked while the House was under construction. Grubic
complained to the Zoo Director, and later to Waco’s Human Resources
Department, after he saw a Zoo tour guide turn away from the Ranch House
because a tour member was in a wheelchair. The third way in which Grubic
helped a disabled person was by testifying on behalf of a disabled Zoo employee
at the employee’s EEO/ADA grievance hearing. During the time of these three
events, Grubic’s superiors acted against Grubic in various ways, including
suspension and termination.
      Grubic filed this ADA retaliation1 lawsuit in 2004. He argued that the Zoo
suspended and terminated him in retaliation for the three acts described above.
The district court granted Waco’s summary judgment motion after the Supreme
Court handed down Burlington Northern & Santa Fe Railway Co. v. White.2 The
court denied Grubic’s motion to reconsider, and Grubic timely appealed.




      1
          See 42 U.S.C. § 12203.
      2
          126 S. Ct. 2405 (2006).

                                         2
                                        No. 06-51631

                                              II
       Grubic asks this court to “reverse and remand this case for trial in light
of the Burlington case.” He contends that a jury should decide whether Waco
took “adverse employment actions” against him, because the Supreme Court
reversed and remanded for that purpose in Burlington Northern. This court
reviews the district court’s grant of summary judgment de novo, examining the
facts in the light most favorable to the nonmoving party.3
       Before4 and after5 Burlington Northern, courts analyze retaliation claims
in a three-step process.6         In the first step, the plaintiff must prove three
elements: that (1) he engaged in an activity the ADA protects; (2) his employer
took an adverse employment action against him; and (3) a causal link existed
between the protected activity and the adverse employment action.7 Once the
plaintiff makes out this prima facie case, the defendant must give a legitimate,
nondiscriminatory reason for its adverse action.8 If the defendant succeeds, the
plaintiff must then show that the employer’s explanation is pretextual.9




       3
           Seaman v. CSPH, Inc., 179 F.3d 297, 299 (5th Cir. 1999).
       4
           See id. at 301.
       5
         See Washburn v. Harvey, 504 F.3d 505, 510 (5th Cir. 2007) (citing Long v. Eastfield
Coll., 88 F.3d 300, 304 (5th Cir. 1996)).
       6
         Although Burlington Northern was a Title VII case, this court applies the same
analysis to ADA and Title VII retaliation claims. Compare Long, 88 F.3d at 304 (applying the
burden-shifting framework to a Title VII retaliation case), with Seaman, 179 F.3d at 301
(applying the burden-shifting framework to an ADA retaliation case).
       7
           Seaman, 179 F.3d at 301.
       8
           Id.
       9
           Id.

                                              3
                                       No. 06-51631

Burlington Northern clarified the standard that applies to the second element
of the first step: an “adverse employment action.”10
      There is no dispute in this case that Waco took adverse employment
actions against Grubic, including suspension and termination. Indeed, Waco
concedes      that    “the   employment       decisions    at   issue—suspension       and
termination—were material and actionable decisions.”                   The district court
similarly did not question this conclusion. Instead, it granted Waco summary
judgment on the other elements of the retaliation analysis. Regarding the
closing of the petting zoo, the court found that Grubic failed to prove the first
(protected activity) and third (causal connection) elements of the first step, that
Waco met its burden in the second step, and that Grubic failed to show that
Waco’s explanation was pretextual in the third step. The court rejected Grubic’s
arguments relating to the Ranch House for precisely the same reasons. Finally,
the court also relied on other elements regarding Grubic’s testimony at the
EEO/ADA grievance hearing: it found that Waco presented a legitimate, non-
discriminatory reason for terminating Grubic, and that Grubic did not show that
the explanation was pretextual.
      Unlike the parties in Burlington Northern, the parties here agree that the
employer took adverse employment actions against the employee. Thus, there
is no need for a jury trial on this element. Grubic does not dispute the district
court’s other findings; these unchallenged findings compel affirmance.
                                      *       *        *
      We AFFIRM the judgment of the district court.




      10
           Burlington N. & Santa Fe Ry. Co. v. White., 126 S. Ct. 2405, 2409 (2006).

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