     Case: 15-50341   Document: 00513276547     Page: 1   Date Filed: 11/18/2015




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

                                                                          FILED
                                No. 15-50341                      November 18, 2015
                              Summary Calendar
                                                                     Lyle W. Cayce
                                                                          Clerk
ALFRED ORTIZ, III,

             Plaintiff - Appellant

v.

CITY OF SAN ANTONIO FIRE DEPARTMENT,

             Defendant - Appellee




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


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Plaintiff Alfred Ortiz, III, works for defendant City of San Antonio Fire
Department (“SAFD”). He appeals a grant of summary judgment in favor of
SAFD on his claims for (1) employment discrimination in violation of the
Genetic Information Nondiscrimination Act (“GINA”), (2) retaliation in
violation of GINA, and (3) national origin discrimination in violation of Title
VII of the Civil Rights Act of 1964. Finding no reversible error, we AFFIRM.
                                I. Background
      Ortiz began working for SAFD over thirty years ago, first as a firefighter
and then as a paramedic. Since 2002, the collective bargaining agreement
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between firefighters and the City of San Antonio has provided for a “mandatory
wellness program for all employees,” to be approved by the union and the City.
As explained below, Ortiz’s primary complaint is the mandatory nature of the
program eventually adopted.
      In December 2010, SAFD announced a “Wellness Program” mandatory
for “all uniformed employees.” That program is “designed to provide early
detection of serious medical conditions and encourage better health, thereby
allowing . . . employees to do their job more safely and effectively.” Under the
Wellness Program, SAFD provides to each employee a free and comprehensive
“job-related medical evaluation.” An employee may, at his own expense, have
his personal physician conduct the examination instead.            The required
examination includes a medical history; a “complete physical examination”;
blood and urine tests; and tests for vision, hearing, and lung capacity. SAFD
also requires a chest X-ray every five years as well as a stress test and
“Prostate-Specific Antigen” testing for employees over the age of forty.
      If an employee is not certified fit for his position’s essential duties, the
Wellness Program provides that he is to be placed on “Alternate Duty,” and
that SAFD “will work closely with the employee and the Wellness Physician to
expedite a return to full duty status.” An employee can also be placed on
temporary “Conditional Full Duty” under some circumstances.            An SAFD
official describes alternate duty as “administrative detail,” and the general
order outlining the Wellness Program describes alternate duties as “non-
operational.” After sixty days, employees on alternate duty are no longer
eligible for overtime.
      On June 23, 2011, SAFD Emergency Medical Services personnel,
including Ortiz, received an email regarding upcoming physicals. In a letter
to the Fire Chief one month later, Ortiz wrote that he did not want to
participate in the Wellness Program and did not wish “to allow release of [his]
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Personal Protected Health information to any entity without [his] express
written consent.” 1 Ortiz was then asked to explain why he did not want to
participate. In a second letter written eight days later, Ortiz stated that he
was seeking “clarification as to the constitutionality of releasing [his] personal
‘protected’ health information to any entity, without ‘cause’ and without [his]
expressed written consent.” He requested “additional time to meet with [his]
lawyer . . . before subjecting [himself] to the physical and lab work.”
      In early 2012, SAFD compiled a list of all uniformed employees who had
not yet complied with the Wellness Program. This list included Ortiz, who was
placed on alternate duty in February 2012. One week later, Ortiz submitted
paperwork from a physical conducted by his personal physician, and he was
immediately returned to regular duty.
      Ortiz’s physician did not administer the mandatory stress test because,
in that physician’s opinion, it was not necessary. On April 13, 2012, when
SAFD learned that Ortiz had not taken a stress test and refused to submit to
one, he was again placed on alternate duty. The official who placed Ortiz on
administrative detail avers that the placement was “based only on [Ortiz’s]
failure to comply with” the Wellness Program. After nine months of alternate
duty, Ortiz submitted results of a stress test to SAFD and was returned to
regular duty.
      As evidence of disparate treatment, Ortiz submitted a declaration by
Brian McEnery, a Battalion Chief with SAFD. McEnery declared that, during
a physical administered pursuant to the Wellness Program, he refused to
answer whether high blood pressure ran in his family because he “viewed that


      1  Ortiz misstates the record when he characterizes this letter and portions of his
deposition testimony as expressing a refusal to allow SAFD to collect his “family medical
history pursuant to the GINA.” Neither the letter nor the cited deposition testimony
mentions GINA or family medical history. And Ortiz has not pointed to any record evidence
that he was required to provide family medical history.
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[question] as a violation of GINA.” The examining physician nevertheless
certified McEnery as fit for “full duty.”      During another annual physical,
McEnery was told that he needed to take a stress test or be placed on
conditional or alternate duty. McEnery declares that although he was told he
would have to complete a stress test, he “was not placed on administrative duty
for [his] refusal to take a stress test or [his] refusal to provide information [he]
believed was in violation of GINA”; indeed, he was promoted.
      Record evidence indicates that McEnery was placed on conditional duty
due to his failure to take a stress test, but that he was never placed on
administrative duty because his primary duties were already “administrative
in nature,” and because SAFD was awaiting a decision on an EEOC complaint
McEnery had filed challenging the Wellness Program. SAFD also submitted
evidence that McEnery’s promotion was made pursuant to the collective
bargaining agreement, and was not discretionary. According to SAFD official
Noel T. Horan, the only other uniformed employee besides Ortiz and McEnery
who failed to fully comply with the Wellness Program’s physical requirement
was also placed on alternate duty.
      In February 2012, Ortiz filed a union grievance concerning his first
placement on alternate duty. He filed a second union grievance in April of that
year, when he was told that his physical did not satisfy the Wellness Program
because it did not include a stress test. On April 13, 2012, Ortiz filed an EEOC
complaint alleging that his first placement on alternate duty constituted
discrimination and retaliation in violation of Title VII and GINA. He then
amended that complaint to include his second placement on alternate duty.
Ortiz filed the instant lawsuit on May 30, 2013. After the City moved for
summary judgment, the district court referred the matter to a magistrate
judge, who recommended granting the motion in full. No party filed any
objection to that recommendation, which warned that a failure to file timely
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written objections would prevent the matter from being reviewed de novo by
the district judge or appellate court.                The district court adopted the
recommendation, and this appeal timely followed.
                                II. Standard of Review
       Ordinarily, “[w]e review a district court’s grant of summary judgment de
novo, applying the same standards as the district court.” Humana Health
Plan, Inc. v. Nguyen, 785 F.3d 1023, 1026 (5th Cir. 2015) (citation omitted).
But plain error review applies where, as here, “a party did not object to a
magistrate judge’s findings of fact, conclusions of law, or recommendation to
the district court” despite being “served with notice of the consequences of
failing to object.” United States ex rel. Steury v. Cardinal Health, Inc., 735 F.3d
202, 205 n.2 (5th Cir. 2013) (citing Douglass v. United Servs. Auto Ass’n, 79
F.3d 1415, 1428–29 (5th Cir. 1996) (en banc), superseded by statute on other
grounds, 28 U.S.C. § 636(b)(1)). “The plain error exception is designed to
prevent a miscarriage of justice where the error is clear under current law.”
Septimus v. Univ. of Hous., 399 F.3d 601, 607 (5th Cir. 2005). To prevail under
this standard, the appellant “must show (1) that an error occurred; (2) that the
error was plain, which means clear or obvious; (3) the plain error must affect
substantial rights; and (4) not correcting the error would seriously impact the
fairness, integrity, or public reputation of judicial proceedings.” Id. 2




       2 Ortiz failed to acknowledge the applicability of plain error review in his opening brief
and filed no reply after SAFD provided the appropriate standard of review in its brief.
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                                   III. Discussion
         For the reasons stated below, the district court did not plainly err by
dismissing any of Ortiz’s claims.
A. GINA Discrimination Claim
         Ortiz first argues that the district court wrongly dismissed his claim that
SAFD discriminated against him in violation of GINA by requiring that he
participate in a mandatory wellness program. GINA prohibits an employer
from discriminating or taking adverse actions against an employee “because of
genetic information with respect to the employee.” 42 U.S.C. § 2000ff-1(a)(1),
(2). The Act also makes it unlawful “for an employer to request, require, or
purchase genetic information with respect to an employee or a family member
of the employee,” with some exceptions.          Id. § 2000ff-1(b).   One of these
exceptions is that an employer that offers medical services “as part of a
wellness program” may request genetic information if the “employee provides
prior,    knowing,    voluntary,    and   written    authorization”   and    certain
confidentiality requirements are met. Id. § 2000ff-1(b)(2); see also 29 C.F.R. §
1635.8(b)(2).     GINA provides a private right of action, incorporating the
enforcement and remedies procedures of Title VII of the Civil Rights Act of
1964. See 42 U.S.C. § 2000ff-6(a)(1).
         For purposes of GINA, “genetic information” means information about
the “genetic tests” of an individual or her family members, and information
about “the manifestation of a disease or disorder in family members of such
individual.” Id. § 2000ff(4)(A); see also 29 C.F.R. § 1635.3(c). “Genetic test,” in
turn, “means an analysis of human DNA, RNA, chromosomes, proteins, or
metabolites, that detects genotypes, mutations, or chromosomal changes.” Id.
§ 2000ff(7)(A). “The term ‘genetic test’ does not mean an analysis of proteins
or metabolites that does not detect genotypes, mutations, or chromosomal
changes.” 42 U.S.C. § 2000ff(7)(B). Nor does that term encompass medical
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tests such as those for blood counts, cholesterol, or liver function. See 29 C.F.R.
§ 1635.3(f)(3). And an employer does not violate GINA through “the use,
acquisition, or disclosure of medical information that is not genetic information
about a manifested disease, disorder, or pathological condition of an employee
or member, including a manifested disease, disorder, or pathological condition
that has or may have a genetic basis.” Id. § 2000ff-9.
      The district court correctly dismissed this claim because Ortiz presented
no evidence that SAFD requested, required, or purchased his genetic
information, or discriminated against him on the basis of genetic information.
Rather, he appears to misread the statute as forbidding any mandatory
wellness program, regardless of whether it involves a request for or the
acquisition of genetic information. Ortiz also ignores the statutory distinction
between “medical information” and “genetic information.” Far from plainly
erroneous, the district court’s decision comports with the plain language of the
statute and the sparse case law in this area. See Dumas v. Hurley Med. Ctr.,
837 F. Supp. 2d 655, 666 (E.D. Mich. 2011) (dismissing GINA claim for failure
to allege use or misuse of “genetic information” as defined by the statute);
Smith v. Donahoe, 917 F. Supp. 2d 562, 571 (E.D. Va. 2013) (similar).
B. GINA Retaliation Claim
      Ortiz also argues that the district court erred in dismissing his claim for
retaliation on the basis of GINA-protected activity. Borrowing from the Title
VII context, the district court applied the McDonnell Douglas burden-shifting
framework, which the parties appear to agree was appropriate.                That
framework requires a retaliation plaintiff to first make out a prima facie case
by showing (1) that he engaged in protected activity, (2) that he suffered an
adverse employment action, and (3) “that a causal link existed between the
protected activity and the adverse action.” Davis v. Fort Bend County, 765 F.3d
480, 489–90 (5th Cir. 2014). “If the employee establishes a prima facie case,
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the burden shifts to the employer to state a legitimate, non-retaliatory reason
for its decision. After the employer states its reason, the burden shifts back to
the employee to demonstrate that the employer’s reason is actually a pretext
for retaliation.” Id. at 490 (citation omitted).
      Ortiz contends that he engaged in GINA-protected activity when he
refused to comply with the Wellness Program at various times, and when he
filed grievances regarding his placements on alternate duty. The district court
concluded that all but one of these activities were not protected by GINA
because Ortiz did not in those instances mention GINA or genetic information.
This conclusion was not clearly or obviously wrong. See Riley v. Napolitano,
537 F. App’x 391, 392 (5th Cir. 2013) (“[O]ur court has consistently held that a
vague complaint, without reference to an unlawful employment practice under
[the relevant anti-discrimination statute], does not constitute protected
activity.”).
      The district court found that Ortiz’s April 2012 EEOC complaint could
constitute protected activity because it alleged discrimination on the basis of
genetic information, and decided that Ortiz’s placement on alternate duty was
an adverse employment action because he lost eligibility for overtime. But the
district court concluded that there was no causal link between the protected
activity and adverse action because Ortiz was placed on alternate duty for the
second time as soon as he again refused to complete the mandated physical,
and before his EEOC complaint was even filed. In the alternative, the district
court concluded that the record demonstrated a legitimate reason for the
administrate duty placements—Ortiz’s refusals to comply with a mandatory
program designed to ensure that firefighters can perform their jobs safely and
effectively—and that Ortiz had not created a genuine issue of material fact as
to pretext. The district court reasoned that the timeline of events and SAFD’s
submitted evidence showed that SAFD’s actions were motivated by Ortiz’s
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refusal to take a stress test, “not because he opposed practices protected under
GINA.” These conclusions were not plainly erroneous.
C. Title VII National Origin Claim
      Finally, Ortiz challenges the district court’s dismissal of his claim that
he was discriminated against because he is Hispanic, which he attempted to
show through comparison to McEnery’s allegedly disparate treatment. The
district court found that Ortiz had established a prima facie case of
discrimination in violation of Title VII, but correctly recognized that SAFD
would nevertheless be entitled to summary judgment if it “articulate[d] a
legitimate, nondiscriminatory . . . reason for its employment action” and Ortiz
could not show a triable issue of fact as to whether “the employer’s proffered
reason is not true but instead is a pretext” for a discriminatory purpose. McCoy
v. City of Shreveport, 492 F.3d 551, 557 (5th Cir. 2007).
      The district court concluded that the Wellness Program’s stated goal of
assuring that firefighters and other department employees could “safely and
effectively perform their job[s]” was a legitimate motive for requiring medical
examinations and assigning noncompliant Ortiz to alternate duty. The district
court then found that Ortiz had failed to create a genuine issue of material fact
on pretext.   The district court noted that SAFD had advanced legitimate
reasons for not placing McEnery on alternate duty, and determined that Ortiz
had not created a triable issue as to whether those reasons were false. As with
Ortiz’s GINA retaliation claim, the district court also found that the timing of
Ortiz’s placements on administrative duty showed that SAFD’s motive was
ensuring compliance with the Wellness Program and furthering its goals, not
discriminating against Ortiz because of his national origin. Again, we cannot
say that these conclusions were plainly erroneous.




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                                No. 15-50341
                              IV. Conclusion
     Because the district court did not plainly err in dismissing any of Ortiz’s
claims, we AFFIRM.




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