            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 00-30390
                                         Summary Calendar
                                         _______________



                                        DAVID EDWARDS,

                                                             Plaintiff-Appellant,

                                              VERSUS

                                   WAL-MART STORES, INC.,

                                                             Defendant-Appellee.


                                   _________________________

                            Appeal from the United States District Court
                               for the Western District of Louisiana
                                           (99-CV-11)
                                  _________________________
                                         January 8, 2001



Before JOLLY, SMITH, and DENNIS, Circuit                David Edwards appeals a summary
  Judges.                                            judgment in a suit against his employer under
                                                     the Americans with Disabilities Act (“ADA”).
JERRY E. SMITH, Circuit Judge:*                      Finding no reversible error, we affirm.

                                                                            I.
                                                        Edwards, who can neither hear nor speak
   *
                                                     but can communicate through sign language,
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                     finger spelling, and written notes, worked as a
determined that this opinion should not be
                                                     merchandise stocker for Wal-Mart Stores, Inc.
published and is not precedent except under the
limited circumstances set forth in 5TH CIR.          (“Wal-Mart”).       He has a high school
R. 47.5.4.                                           equivalency diploma from the Louisiana
School for the Deaf and a degree from a junior         He further suggested that a co-worker had re-
college. He worked at Wal-Mart for four                ceived permission to drink a damaged
years and held a second job at Pizza Hut for           beverage without discipline. Edwards did not
three years using these limited communication          see the videotape, because company policy
skills.                                                forbade it.

   Edwards’s managers at Wal-Mart learned                                    II.
some sign language, and the assistant manager              Edwards sued for violation of the ADA for
carried a notepad for communicating with him.          failure to provide him with reasonable
Edwards never asked for or required a                  accommodations for his disability and by
certified interpreter; although he had no              discharging him because of his disability. The
difficulty performing assigned tasks, he               district court granted summary judgment for
occasionally received reprimands for sleeping          Wal-Mart on the basis that Edwards had failed
past his break.                                        to make any showing of discrimination.

    Wal-Mart terminated Edwards for stealing                                 III.
a root beer from the stock room. A co-worker              Summary judgment is appropriate “if the
reported that Edwards had removed a can of             pleadings, depositions, answers to
root beer from the inventory pallet, opened the        interrogatories, and admissions on file,
can, and took a drink. The night shift manager         together with the affidavits, if any,” when
reviewed a videotape that allegedly confirmed          viewed in the light most favorable to the
the story. She then went to the receiving area         nonmoving party, “show that there is no
and found the open root beer but no other              genuine issue as to any material fact and that
beverage cans. She reported the incident to            the moving party is entitled to judgment as a
the assistant manager, who reviewed the vid-           matter of law.” FED. R. CIV. P. 56(c). 1 We
eotape and interviewed the worker who ini-             review a summary judgment de novo, using the
tially had reported the theft.                         same standards as did the district court. Allen
                                                       v. Rapides Parish Sch. Bd., 204 F.3d 619, 621
   The assistant manager met with Edwards,             (5th Cir. 2000). We also review de novo the
discussed the incident, and terminated him, in         district court’s interpretation of the ADA.
accordance with company policy, for                    Lara v. Cinemark USA, Inc., 207 F.3d 783,
unauthorized removal of property. At that              786 (5th Cir.), cert. denied, 121 S. Ct. 341
meeting, Edwards communicated with his                 (2000).
superiors in his usual fashionSSthrough finger
spelling, sign language, and written notes. A                             IV.
co-worker who knew some sign language                     Edwards contends the court erred in
assisted Edwards.                                      deciding that Wal-Mart had no obligation to

   Edwards first denied the incident, then tried
to explain that he had purchased his own
drink, a 7-Up. He said he had been ill that
night and had taken medication; if he had tak-
en a root beer, then he had made a mistake.               1
                                                            See also Matsushita Elec. Indus. Co. v.
                                                       Zenith Radio Corp., 475 U.S. 574, 587 (1986).

                                                   2
provide an interpreter.2 The ADA requires                     Edwards contends that when the employer
e mp lo ye r s t o m a k e r e a s o n a b l e             knows the employee has a disability, the em-
accommodations for a qualified individual with             ployer should initiate an interactive process to
a disability, defined as a person “who, with or            develop a reasonable accommodation.
without reasonable accommodation, can                      Although the employer does have a good faith
perform the essential functions of the                     obligation to engage in this process, the
employment position . . . .” 42 U.S.C.                     employer must have adequate notice that the
§ 12111(8). The ADA recognizes “the                        employee needs additional assistance.5 An em-
provision of qualified readers or interpreters”            ployer “should do what it can to help” when an
as a reasonable accommodation. Id. §                       “employee may need an accommodation but
12111(9)(B).                                               doesn’t know how to ask for it,” Bultemeyer
                                                           v. Fort Wayne Cmty. Schs., 100 F.3d 1281,
   Edwards, however, did not ask for a                     1285 (7th Cir. 1996), but even in that case, the
certified interpreter.3 “In general . . . it is the        employee had his doctor send a letter to his
responsibility of the individual with the                  employer requesting an accommodation. Id.
disability to inform the employer that an                  Thus, an employer need not divine the needs
accommodation is needed. . . . If the                      of the employee absent any affirmative signal
employee fails to request an accommodation,                from that employee.6
the employer cannot be held liable for failing
to provide one.” Taylor v. Principal Fin.                     Neither party suggests that Edwards could
Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)              not communicate to Wal-Mart that he desired
(quoting 29 C.F.R. § 1630.9, App. (1995)).4
                                                              4
                                                               (...continued)
                                                           accommodation.”); Burch v. Coca-Cola Co., 119
   2
      Edwards also contends that Wal-Mart’s                F.3d 305, 319-20 (5th Cir. 1997) (holding that
refusal to show him the video constituted a failure        employee’s claim that employer had denied a rea-
to make a reasonable accommodation. He did not             sonable accommodation was not actionable be-
raise this claim before the district court; thus, he       cause he had not requested an accommodation
has waived it. See Abbott v. Equity Group, Inc.,           before termination).
2 F.3d 613, 627 n.50 (5th Cir. 1993); Jernigan v.
                                                              5
Collins, 980 F.2d 292, 297 n.1 (5th Cir. 1992).                 See Taylor v. Phoenixville Sch. Dist., 184
                                                           F.3d 296, 313 (3d Cir. 1999) (noting that “he em-
   3
      Although Edwards stated that he needed an            ployer must know of both the disability and the
interpreter for “emergency situations” such as store       employee’s desire for accommodations”)
meetings, a co-worker who knew sign language               (emphasis added).
would interpret for him, or the assistant manager
                                                              6
would write notes to him about these meetings.                  Indeed, Loulseged further distinguishes Bulte-
Edwards had this assistance at the termination             meyer by noting that the employee in that case had
meeting and admitted that he had not requested a           a mental disability. That court noted that the
certified interpreter for that meeting.                    mental disability may affect the employee’s ability
                                                           to understand that he needs an accommodation but
   4
     See also Loulseged v. Akzo Nobel, Inc., 178           that “[w]hen, as here, an employee’s disability is
F.3d 731, 736 & n.4 (5th Cir. 1999) (“According-           purely physical, the employee will generally be in
ly, the burden is on the employee to request an            the best position to determine her own needs and
                                    (continued...)         capacities.” Loulseged, 178 F.3d at 736 n.5.

                                                       3
a certified interpreter.           Wal-Mart’s            finding that he had made no prima facie case
management recognized the need for                       that Wal-Mart discharged him because of his
interpretive help and brought in an employee             disability. The ADA prohibits employers from
with rudimentary sign language skills who                discriminating “against a qualified individual
usually interpreted for Edwards at company               with a disability” on the basis of that disability.
meetings. The manager additionally used                  42 U.S.C. § 12112(a). We have recognized
written notes, just as he had done in the past,          two methods of establishing a prima facie case
to explain to Edwards that he was being                  of discrimination under the ADA: One uses
terminated. The fact that Edwards used these             direct evidence, the other indirect.
written notes to tell the manager his side of the
story indicates that he had the ability to                                      A.
request additional assistance had he needed it.7             To establish a prima facie case via direct
                                                         evidence, Edwards “must show: (1) that he has
                                                         a disability; (2) that he was qualified for the
   Furthermore, Edwards has not established              job; and (3) that he was subject to an adverse
that he ever before had requested                        employment decision because of his disability.”
accommodations. Even though he believed he               Ivy v. Jones, 192 F.3d 514, 516 (5th Cir.
had asked for an interpreter for company                 1999). The parties do not contest that
meetings on several occasions, he could not              Edwards satisfies each of these requirements
remember any details to substantiate that                or that he has not introduced any direct
assertion. “A wrongful termination claim                 evidence to connect that employment decision
under the ADA is not properly analyzed under             to intentional discrimination on the basis of his
a reasonable accommodation theory unless an              disability; thus, he has not made out a prima
employer is shown to have terminated a                   facie case under the third prong of the test.
qualified individual with a disability in order to
avoid accommodating that employee’s                                             B.
impairments at the workplace.” Burch, 119                    A plaintiff may use the indirect method of
F.3d at 314. Edwards has not even hinted that            proof set forth in McDonnell Douglas Corp. v.
Wal-Mart discharged him to avoid providing               Green, 411 U.S. 792, 802-05 (1973). Daigle
reasonable accommodations. Therefore, the                v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th
district court correctly concluded that Wal-             Cir. 1995). Edwards must show that he
Mart had no duty under the ADA to provide a              (1) suffers from a disability; (2) is qualified for
certified interpreter at the termination meeting.        the job; (3) was subject to an adverse em-
                                                         ployment action; and (4) was replaced by a
                   V.                                    non-disabled person or was treated less
   Edwards avers that the court erred in                 favorably than were non-disabled employees.
                                                         Id. The parties do not dispute that Edwards
                                                         was replaced by a hearing, speaking individual,
   7
     Edwards notes that the night shift manager          so he has made a prima facie case under
asked the assistant manager to bring in an               McDonnell Douglas.
interpreter who was fluent in sign language at the
termination meeting. Because Edwards must                   Having done so, Edwards is entitled to a
affirmatively indicate a need for additional             presumption of discrimination that the
assistance, this fact has no relevance.

                                                     4
employer must rebut by “articulat[ing] some            then admitted he mistook the root beer for his
legitimate, non-discriminatory reason” for the         own 7-Up. Although he suggests that Wal-
employment action. McDonnell Douglas, 411              Mart’s refusal to allow him to view the
U.S. at 802. The employer need not prove the           videotape evidences a discriminatory intent,
legitimate reason; it need only put forth              Wal-Mart policy prohibits any employee from
evidence; the burden of proving intentional            viewing such a videotape.
discrimination “remains at all times with the
plaintiff.” St. Mary’s Honor Ctr. v. Hicks, 509           Edwards asks us to believe that the fact that
U.S. 502, 507 (1993) (quoting Texas Dep’t of           Wal-Mart lost the videotape between his ter-
Cmty. Affairs v. Burdine, 450 U.S. 248, 253            mination and his lawsuit suggests pretext, but
(1981)).                                               multiple witnesses testified to the contents of
                                                       the videotape.8 Edwards portrays the slight
   Wal-Mart has produced evidence that it              variations in the testimony of these witnesses
terminated Edwards for violating company               as additional evidence of pretext, but each wit-
policy, so “the presumption raised by the pri-         ness stated that Edwards took a can of soda
ma facie case is rebutted and drops from the           from the pallet and drank the contents.
case.” Id. (quoting Burdine, 450 U.S. at 255
& n.10). At this point, Edwards must show                 Despite the alleged evidence of
that the pro ffered reason is pretextual or un-        discrimination, Edwards makes no reference to
worthy of credence. Burdine, 450 U.S.at 253,           any negative or offensive comments related to
256. To show pretext, he may use evidence              his disability, to a pattern of discrimination
establishing his prima facie case, Reeves v.           against the disabled at the store, or indeed to
Sanderson Plumbing Prods., 530 U.S. 133,               any other negative encounter at Wal-Mart
___, 120 S. Ct. 2097, 2106 (2000), but he still        related to his disability in the four years he
must prove that Wal-Mart intended to                   worked there.           Moreover, Edwards
discriminate on the basis of his disability.           undermines his own argument by testifying
                                                       that management learned some sign language
    Edwards has established no nexus between           to communicate with him. He admitted that
termination and disability. He stated in               the assistant manager who terminated him
deposition that he did not know whether the            supported the deaf community. Furthermore,
company discriminated against him based on             the same manager who terminated him also
his disability, on his race, or both. He further       hired him; thus, Wal-Mart may receive the
admits that his manager would not terminate
him absent plain evidence that he had stolen
company property, and he has not produced                 8
any evidence to contradict the testimony of the              Edwards argues for the first time on appeal
                                                       that the loss of the videotape constitutes spoilation
eyewitnesses and those who viewed the
                                                       of the evidence. Because he did not raise this point
videotape that he committed a terminable               before the district court, he has waived it. See,
offense under a company policy applicable to           e.g., Estate of Martineau v. Arco Chem. Co., 203
all employees.                                         F.3d 904, 913 (5th Cir. 2000) (citing Vaughner v.
                                                       Pulito, 804 F.2d 873, 877 (5th Cir. 1986) (noting
   Indeed, Edwards’s testi mony was                    that if a party fails to assert a legal reason why
contradictory: He first denied the incident,           summary judgment should not be granted, he
                                                       waives the right to assert it on appeal)).

                                                   5
benefit of an inferenceSSthe “same actor”              single shred of evidence to support Edwards’
inferenceSSthat discrimination did not                 claim that Wal-Mart terminated him because of
motivate the termination. See Brown v. CSC             his disabilities. There is simply no evidence of
Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996).         discriminatory intent or motive on the part of
                                                       Wal-Mart in this case.”
   Therefore, Edwards has failed to prove in-
tentional discrimination, even when all the               AFFIRMED.
facts are construed in his favor. A district
court may properly award summary judgment
when

   a party . . . fails to make a showing
   sufficient to establish the existence of an
   element essential to that party’s case,
   and on which that party will bear the
   burden of proof at trial. In such a
   situation, there can be ‘no genuine issue
   as to any material fact,’ since a complete
   failure of proof concerning an essential
   element of the nonmoving party’s case
   necessarily renders all other facts
   immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986).

   Edwards has not presented any issue of fact
material to the question of intentional
discrimination. He disputes only Wal-Mart’s
evidence that he stoleSSa fact more relevant to
whether Wal-Mart terminated him without
sufficient proof than to intentional dis-
crimination. Edwards perhaps had more
difficulty communicating his side of the story
than would a hearing and speaking person, but
he has offered no evidence that Wal-Mart
treated him differently from any other
employee.

   In sum, Edwards has not connected the ter-
mination to an intent to discriminate on the ba-
sis of disability. As the district court
perceptively stated, “this court finds not a


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