                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                                                               May 14, 2003
                       For the Fifth Circuit
                                                         Charles R. Fulbruge III
                                                                 Clerk

                            No. 02-50869
                          Summary Calendar


                          KARL A. WHITE,

                                               Plaintiff-Appellant,


                               VERSUS


               AMERICAN HABILITATION SERVICES, INC.,

                                               Defendant-Appellee.




          Appeals from the United States District Court
                For the Western District of Texas
                          (A-01CA-377-SS)


Before JONES, STEWART, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:*

      In this employment discrimination action, Kevin White pro se

alleges that his former employer, American Habilitation Services,

Inc. (“AHS”), demoted and eventually discharged him in violation of




  *
   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opinion should not be published and is not precedent except under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.

                                 1
Title VII and the Americans with Disabilities Act of 1990 (“ADA”).1

The district court granted summary judgment for AHS.      White now

appeals.   We AFFIRM.

                                   I.

      Because White provides no recitation of facts in his brief, we

accept and adopt the district court’s presentation of the relevant

facts:

      AHS provides daily living assistance in group homes for
      individuals with mental and physical disabilities. White
      began working at AHS on July 21, 2000 as a Residential
      Manager. He was hired by Rich Franks, the Residential
      Director of AHS’s group homes in Austin. White is an
      African-American male and is hearing-impaired such that
      he can only hear loud noises. White’s responsibilities
      as Residential Manager included supervising direct care
      staff, staffing the group homes, and being on call.
      During his employment with AHS, he also worked at the
      Texas School for the Deaf (“TSD”) as central plant
      monitor. AHS has a policy that outside employment must
      not compete with an employee’s job performance.

      On September 8, 2000, while White was on call, Franks
      paged him and asked him to assist with a staff shortage
      at one of the group homes. At the time, White was at his
      TSD job and refused to leave to cover the shortage, even
      though Franks explained to him he needed to choose his
      primary employer.    On September 13, 2000, White was
      suspended pending termination. In lieu of termination,
      AHS offered him a direct care position at the Kenyon
      House, one of the group homes. White was informed if he
      did not appear at the job on September 28, the job offer
      would be considered rejected and his employment would be
      terminated.   He did not appear on that date and was
      terminated. AHS filled the Residential Manager position
      with an African-American female who had worked for the
      company since July 2, 1999.

In addition to these facts, the record shows that White presented


  1
      42 U.S.C. §§ 12101 et seq.

                                   2
AHS with a list of his conditions for taking the direct care

position.       Only one of White’s conditions—his demand that AHS

provide a TTY machine with a flashing light—constitutes a request

for an accommodation of his disability.          The record shows that AHS

agreed to this condition.

      After his demotion but before his termination, White filed a

complaint with the Texas Commission on Human Rights (“TCHR”).                 He

alleged   AHS    had   discriminated       against   him   on   the   bases   of

disability, race, and gender.              The TCHR issued a right-to-sue

letter on March 19, 2001, and White filed this lawsuit on June 18,

2001.     The    district   court   granted     AHS’s   motion   for   summary

judgment.   This appeal followed.

                                     II.

      Because White addressed only his ADA claim in his appellate

brief, we assume that he has abandoned his race- and gender-based

discrimination claims.2      We further assume that White’s ADA claim

consists of two parts, one related to his demotion and the other

related to his subsequent termination. We construe the latter part

to allege retaliatory discharge.




  2
    See Sherrod v. American Airlines, Inc., 132 F.3d 1112, 1119 n.5
(5th Cir. 1998). (“[We] need not address whether the plaintiff
raised a genuine issue of material fact regarding her claims for
discrimination under the [Age Discrimination in Employment Act] and
[Texas Commission on Human Rights Act]. [The plaintiff] waived
review of these issues by not briefing them in the Argument of her
brief.”).

                                       3
                                    A.

       We review the district court’s grant of summary judgment de

novo, applying the same standards followed below.3

                                    B.

       As an initial matter, we hold that the district court properly

determined that White had exhausted his administrative remedies

prior to filing his lawsuit.        The record shows that he filed a

complaint with the TCHR on September 18, 2000—after his demotion

but before his termination.      The TCHR issued a right-to-sue letter

on March 19, 2001, and White filed his lawsuit on June 18, 2001.4

To the extent that White contends he was terminated in retaliation

for demanding a TTY machine as a condition of accepting the direct

care   position,    his   retaliatory    discharge   claim    is   a    natural

extension of the claims presented in his TCHR complaint, which

alleged    (among    other     things)    the   denial       of    reasonable

accommodations     including   interpreters.     Accordingly,          both   the

demotion claim and the retaliatory discharge claim were properly

before the district court.5



  3
    EEOC v. R.J. Gallagher Co., 181 F.3d 645, 653-54 (5th Cir.
1999).
  4
    See 42 U.S.C. § 2000e-5(f)(1) (requiring the complainant to
file a lawsuit within 90 days of his receipt of the right-to-sue
letter). AHS implicitly concedes that White’s lawsuit was timely.
  5
    See Ray v. Freeman, 626 F.2d 439, 442 (5th Cir. 1980) (“As long
as allegations in the judicial complaint and proof are ‘reasonably
related’ to charged in the administrative filing and ‘no material
differences’ between them exist, the court will entertain them.”).

                                    4
      White’s first contention is that he was unlawfully demoted

from his managerial position to a direct care position in violation

of the ADA.       The ADA prohibits an employer from discriminating

against a “qualified individual with a disability” on the basis of

his disability.6 A plaintiff alleging disability discrimination in

employment must make out a prima facie showing that (1) he has a

disability, (2) he was qualified for the job, and (3) he was

subject to an adverse employment action because of his disability.7

      Based on our review of the record, we conclude that White has

failed to make a prima facie case of discrimination in relation to

his demotion.     In particular, White has shown no evidence that he

was   qualified    for   the   job   or       that   he   was   demoted   from   his

managerial position because of his disability.                   On the contrary,

the uncontradicted evidence shows that he was demoted because he

was unwilling to perform the on-call duties of his position.                 Thus,

the record supports only one conclusion: AHS demoted White because

his second job, not his disability, rendered him unable to function

as a manager.

      White’s second contention is that AHS terminated him because

he demanded that it supply him with a TTY machine and interpreters.

The ADA prohibits an employer from retaliating against an employee




  6
    Ivy v. Jones, 192 F.3d 514, 516 (5th Cir. 1999) (citing 42
U.S.C. § 12112(a)).
  7
      Id.

                                          5
who asserts his rights under the ADA.8              To make out a prima facie

case of retaliation, a plaintiff must show that (1) he was engaged

in protected activity, (2) there was an adverse employment action,

and (3) a causal link existed between the two.9                       “In order to

establish the causal link between the protected conduct and the

illegal employment action as required by the prima facie case, the

evidence must show that the employer’s decision to terminate was

based in part on knowledge of the employee’s protected activity.”10

If the plaintiff makes the prima facie showing, the burden shifts

to        the   employer   “to    come   forward    with    a     legitimate,    non-

discriminatory reason for the adverse employment action.”11                     If the

employer satisfies this requirement, the burden shifts back to the

employee        to   “adduce     sufficient    evidence    that    would   permit   a

reasonable trier of fact to find that the proffered reason is a

pretext for retaliation.”12

           The evidence shows that White at various points during his

tenure requested interpreters for meetings and that he demanded a

TTY machine as a condition of accepting his demotion to the direct

care position.         We assume for the present purpose that White can


     8
          42 U.S.C. § 12203(a).
     9
          Sherrod, 132 F.3d at 1122 n.8.
     10
          Id. at 1122.
     11
     Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973)).
     12
          Id. (citing McDonnell Douglas, 411 U.S. at 804).

                                           6
satisfy the first and second elements of the required prima facie

showing.     But we can find no evidence in the record, and White has

identified none beyond his self-serving “gut feelings,”13 supporting

even an inference of a causal link between his accommodation

requests and his termination. The only evidence linking the two is

the uncontroverted fact that AHS acceded to White’s demand that it

install a TTY machine equipped with a flashing light.               This

evidence supports only an inference in support of AHS’s position.

Viewed in the light most favorable to White, we conclude that no

evidence shows that AHS’s decision to discharge White was based in

any part on his accommodation requests.

       Even if White had made the required prima facie showing,

however, he could not meet his burden of responding to AHS’s reason

for    his   discharge.    AHS   explained   that   White’s   employment

terminated when he failed to report to work on September 28, 2000,

after being told that his failure to report would be considered a

resignation.     White has failed to adduce any evidence showing that

his failure to report was not the real reason for his discharge.

Indeed, the uncontradicted evidence shows that AHS agreed to

provide White with a new TTY machine, as demanded, and had in other

ways accommodated White’s disability during his short tenure with


  13
     See Douglass v. United Servs. Auto Ass’n., 79 F.3d 1415, 1430
(5th Cir. 1996) (en banc) (“It is more than well-settled that an
employee’s subjective belief that he suffered an adverse employment
action as a result of discrimination, without more, is not enough
to survive a summary judgment motion.”).

                                    7
the company.    Because there is no evidence of disability-related

animus directed at White by AHS, and because there is unimpeached

evidence to the contrary, no reasonable jury could find for White

on the ultimate question of whether the adverse employment action

would have occurred but for the protected activity.14

                                III.

       For the foregoing reasons, we AFFIRM the district court.

AFFIRMED.




  14
       Sherrod, 132 F.3d at 1122.

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