     Case: 19-50500      Document: 00515319281         Page: 1    Date Filed: 02/21/2020




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

                                                                                  FILED
                                        No. 19-50500                      February 21, 2020
                                                                             Lyle W. Cayce
GABRIEL SANCHEZ,                                                                  Clerk


              Plaintiff - Appellant

v.

CITY OF SAN ANTONIO, BY AND THROUGH ITS AGENT, CITY PUBLIC
SERVICE BOARD OF SAN ANTONIO,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                               USDC 5:18-CV-184


Before ELROD, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
                                   I.     Background
       Gabriel Sanchez worked as a journeyman cable splicer for the City of San
Antonio, by and through its agent, City Public Service Board of San Antonio
(“CPS”). Throughout his employment, Sanchez was involved in five workplace
safety incidents; he caused four and suffered injuries in three.                     His fifth



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 19-50500
workplace safety incident occurred on September 21, 2015, and sent him to the
hospital, where he was diagnosed with Post-Traumatic Stress Disorder
(“PTSD”). The incident also left him unable to return to work for the remainder
of 2015. On March 8, 2016, CPS terminated Sanchez for “a pattern of poor
judgment, unsafe acts & behavior and unwillingness to follow critical work
instructions.” When he was terminated, Sanchez had not been released to
work by his physician, Dr. Hernandez.
      Sanchez sued CPS, alleging that it violated the Americans with
Disabilities Act by terminating his employment because of his PTSD. CPS
moved for summary judgment, claiming that Sanchez failed to show that he
was qualified for his job position, a requirement for a prima facie case of
disability discrimination, and that even if Sanchez was qualified, he failed to
establish that CPS’s reason for termination was pretext for disability
discrimination. The district court agreed and granted summary judgment for
CPS. Sanchez timely appealed.
                               II.   Discussion
      We review a district court’s grant of summary judgment de novo and
apply the same standard as the district court. Ferraro v. Liberty Mut. Fire Ins.
Co., 796 F.3d 529, 531 (5th Cir. 2015). In so doing, “[w]e view all facts and
evidence in the light most favorable to the non-moving party.” Id. Summary
judgment is proper when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a).
      To bring an employment discrimination claim using circumstantial
evidence, as Sanchez does here, the employee must first make a prima facie
showing of discrimination, which requires showing that “(1) [he] has a
disability, or was regarded as disabled; (2) he was qualified for the job; and
(3) he was subject to an adverse employment decision on account of his
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                                    No. 19-50500
disability.” Cannon v. Jacobs Field Servs. N. Am., Inc., 813 F.3d 586, 590 (5th
Cir. 2016).    Sanchez argues that the district court erred by holding that
Sanchez was not qualified for his job position.
      To be qualified, a plaintiff must provide evidence that, at the time of his
termination, “he could perform the essential functions of the job in spite of his
disability.” Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th
Cir. 2017) (brackets omitted). Thus, to prove that he was qualified, Sanchez
must show that on March 8, 2016—the date of his termination—he could
perform the essential functions of his job as a journeyman cable splicer. 1
      Sanchez claims that he was qualified for his job based on three doctor’s
reports: (1) a Work Status Report from Dr. Hernandez on January 25, 2016;
(2) another Work Status Report from Dr. Hernandez on March 21, 2016; and
(3) a psychological evaluation by a Dr. McMains on May 19, 2016. The only
possible doctor’s report that could show that Sanchez was qualified during his
employment is the January 25 Work Status Report, as the others were created
after Sanchez was fired. The January 25 Work Status Report does not show
that Sanchez was qualified to work on March 8, 2016. It states: “The injured
employee’s medical condition resulting from the workers’ compensation injury
. . . has prevented and still prevents the employee from returning to work as of
01/25/2016 . . . and is expected to continue through 03/07/2016.” The report
does not state that Sanchez could return to work on March 8, 2016.
      Sanchez also claims that he was qualified for his job because he testified
to that effect in his Equal Employment Opportunity Commission (“EEOC”)
Charge of Discrimination.        However, the EEOC Charge of Discrimination



      1  A plaintiff may also show that he was qualified with evidence “that a reasonable
accommodation of his disability would have enabled him to perform the essential functions
of the job.” Moss, 851 F.3d at 417 (brackets omitted). However, Sanchez makes no such
claim.
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                                      No. 19-50500
makes no mention that Sanchez would be released to work on March 8, 2016;
it states only that he “would soon be released to return to work.”
       Thus, Sanchez failed to show that he was qualified for his position as a
journeyman cable splicer at the time he was terminated, and for that reason,
we AFFIRM the district court’s grant of summary judgment for CPS. 2




       2Sanchez also argues that the district court erred in holding that he did not create a
genuine dispute of material fact that CPS’s proffered reason for termination was pretextual.
To consider the pretext issue, an employee must first establish a prima facie case of
discrimination. See Cannon, 813 F.3d at 590. Thus, we do not reach Sanchez’s pretext
argument.
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