     Case: 17-60649      Document: 00514627385         Page: 1    Date Filed: 09/04/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 17-60649                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
WILLARD HEAD,                                                           September 4, 2018
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

CITY OF COLUMBUS LIGHT AND WATER DEPARTMENT,

              Defendant - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:16-CV-77


Before SMITH, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Willard Head appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee City of Columbus Light and
Water Department (“CLWD”) on his claim for disability discrimination under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101. For the
reasons set forth 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 17-60649    Document: 00514627385      Page: 2   Date Filed: 09/04/2018



                                  No. 17-60649
                                       I
      In 1992, Head was involved in an automobile accident while driving a
truck for his former employer and required a right hip replacement. Unable to
continue his employment as a result of his injuries, Head enrolled in
community college and ultimately received a job as a “mapper” at CWLD in
1995. Head’s duties as a mapper included maintaining and updating the
computerized map of the city’s electric system. He was also responsible for
dispatching trucks in response to power outage calls. In his CWLD
employment application, Head noted that he had “physical defects which
preclude [him] from performing certain types of work,” specifically, “hip
replacement, no heavy lifting.”
      Head was directly supervised by Chief Engineer Rusty Jaudon, with
whom he shared an office space for nearly 19 years. Jaudon reported to
Superintendent C.F. Harris until April 2014, when Harris retired and was
succeeded by Marcus Rushing. Head and Jaudon had a strained personal
relationship throughout Head’s tenure at CWLD. Specifically, Head
complained that Jaudon gave him too many additional duties, which distracted
him from his job as a mapper. According to Head, on some occasions, Jaudon
required him to do physical work that he was unable to perform. He references
one specific occasion in which he complained to Jaudon that he was unable to
climb a ladder to post pole numbers on electrical poles. Harris confirmed that
Head was sometimes sent into the field to get contracts signed for security
lighting projects and perform some minor jobs that required minimal physical
exertion.
      In September 2013, CWLD General Manager Todd Gale found Head
asleep at his desk, and reported that he was acting disoriented and slurring
his speech. Harris testified that, at some point, Head appeared to “just kind of
lose focus.” Head was on multiple heavy medications—some related to his 1992
                                       2
    Case: 17-60649    Document: 00514627385     Page: 3   Date Filed: 09/04/2018



                                 No. 17-60649
hip injury—and Harris testified that there were “some issues with me smelling
alcohol on him.” Harris advised Head not to leave CWLD property in any of
the department vehicles for some time as a result of his concerns. Head was
warned that his behavior could lead to disciplinary action, and he apparently
requested that his doctor taper him off of painkillers and Xanax. Harris also
testified that Jaudon showed him multiple errors in Head’s work that
ultimately had to be redone several times.
      Head’s performance issues continued after Rushing succeeded Harris in
April 2014. On May 30, 2014, Head was issued a verbal warning after he forgot
to pass along an electrical outage call to the regular dispatcher, resulting in a
four hour delay on the service request. Only a few days later, on June 5, Head
received a written warning for failing to follow instructions and making several
errors in updating the transformer database. On September 8, 2014, Head was
suspended for arriving an hour and a half late for work and being unable to
remember what clients had said on several service calls he received that day.
      Head was ultimately terminated on October 10, 2014, after Jaudon
discovered that roughly 20% of a group of 164 “staking sheets” updates he was
reviewing contained errors. As part of his mapping responsibilities, Head was
charged with making changes to the electrical map according to “staking
sheets,” which note items that need to be added to, replaced, or removed on the
master map. Head filed a discrimination claim with the Equal Employment
Opportunity Commission and received a right-to-sue letter. He filed suit in the
district court alleging that he was terminated on the basis of his age and
disability in violation of the ADA and the Age Discrimination in Employment
Act (“ADEA”). On appeal, Head abandons his ADEA claim and his ADA
accommodation claim, but contends that the district court erred in granting
summary judgment on his ADA discrimination claim because there is a


                                       3
    Case: 17-60649       Document: 00514627385   Page: 4   Date Filed: 09/04/2018



                                  No. 17-60649
genuine issue of material fact as to whether Head was discharged on the basis
of his disability.
                                        II
      This court reviews a grant of summary judgment de novo, applying the
same standard as the district court. Rogers v. Bromac Title Servs., L.L.C., 755
F.3d 347, 350 (5th Cir. 2014). “Summary judgment 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.’” Id. (quoting Fed. R. Civ. P. 56(a)).
We construe “all facts and inferences in the light most favorable to the
nonmoving party,” Dillon v. Rogers, 596 F.3d 260, 266 (5th Cir. 2010) (citation
omitted); but, “[s]ummary judgment may not be thwarted by conclusional
allegations, unsupported assertions, or presentation of only a scintilla of
evidence.” McFaul v. Valenzuela, 684 F.3d 564, 571 (5th Cir. 2012).
                                       III
      The ADA prohibits “discriminat[ion] against a qualified individual on the
basis of a disability in regard to . . . the hiring, advancement, or discharge of
employees . . . and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). Head does not provide any direct evidence in support of his
disability discrimination claim. Accordingly, we apply the burden shifting
framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), to determine whether Head’s circumstantial evidence can sustain his
ADA claim. See E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 694 (5th Cir. 2014).
The analysis requires Head to establish a prima facie case of discrimination.
See E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 615 (5th Cir. 2009).
If Head establishes a prima facie case, the burden shifts to CWLD to articulate
a legitimate, nondiscriminatory reason for discharging Head. See id. The
burden then shifts back to Head to demonstrate that CWLD’s proffered reason
is pretextual. See id.
                                        4
    Case: 17-60649     Document: 00514627385      Page: 5   Date Filed: 09/04/2018



                                  No. 17-60649
      To establish a prima facie case of discrimination, Head must
demonstrate “(1) that he has a disability; (2) that he was qualified for the job;
[and] (3) that he was subject to an adverse employment decision on account of
his disability.” E.E.O.C. v. LHC Group, Inc., 773 F.3d 688, 697 (5th Cir. 2014)
(quoting Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir.
1999)). As the district court explained, Head has not demonstrated that his
termination was at all motivated by his disability. Head references a specific
incident in which he complained to Jaudon about his inability to climb a ladder,
but he does not provide any evidence that this incident was related to his
termination. Indeed, the evidence in the record demonstrates that CWLD had
an issue with Head’s performance of his designated mapping duties and his
general lack of focus—not his inability to perform ancillary physical tasks.
      Even if Head had made a preliminary showing that he was discharged
on account of his disability, he has failed to present “‘substantial evidence’ that
[CWLD’s] legitimate, nondiscriminatory reason for termination is pretextual.”
Delaval v. PTech Drilling Tubulars, L.L.C, 824 F.3d 476, 480 (5th Cir. 2016)
(quoting Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 233 (5th Cir.
2015)). Head “may establish pretext either through evidence of disparate
treatment or by showing that the employer’s proffered explanation is false or
‘unworthy of credence.’” Laxton 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).
Head has demonstrated neither.
      First, Head has not alleged that he was treated differently from any
other employee in his position; he claims only that was treated unfairly as a
general matter. Moreover, the record amply supports that CWLD had many
issues with Head’s job performance—several of which were documented and
signed by Head himself. And the issues were reported by multiple
complainants. Even former Superintendent Harris, whom Head admits he
                                        5
    Case: 17-60649     Document: 00514627385     Page: 6   Date Filed: 09/04/2018



                                  No. 17-60649
respected and who was invested in Harris’s employment, testified that Head
had lost focus, was making multiple errors, and smelled of alcohol on more
than    one    occasion.   In   short,   CWLD    has   articulated    legitimate,
nondiscriminatory reasons for Head’s termination, and Head has provided no
evidence that those reasons were false or “unworthy of credence.” Wallace, 271
F.3d at 220.
                                         IV
       For the foregoing reasons, we AFFIRM the district court’s grant of
summary judgment.




                                         6
