     Case: 18-11613   Document: 00515338446     Page: 1   Date Filed: 03/10/2020




                       REVISED March 10, 2020

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

                                 No. 18-11613
                                                                        Fifth Circuit

                                                                      FILED
                                                                January 14, 2020

GEORGE CHARLES CLARK,                                            Lyle W. Cayce
                                                                      Clerk
             Plaintiff–Appellant,

v.

CHAMPION NATIONAL SECURITY, INCORPORATED,

             Defendant–Appellee.


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



      ON PETITION FOR REHEARING AND REHEARING EN BANC
Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
DON R. WILLETT, Circuit Judge:
      The petition for rehearing is DENIED and no member of this panel nor
judge in active service having requested that the court be polled on rehearing
en banc, the petition for rehearing en banc is also DENIED. The following is
substituted in place of our opinion.
      In this workplace-discrimination appeal, Charles Clark says he was fired
because of a diabetes-related condition. His employer, Champion National
Security, Inc., offers a simpler explanation: Clark was sleeping at his desk
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                                     No. 18-11613
during work hours, an immediately terminable offense. The district court
granted Champion’s motion for summary judgment. We affirm.

                                   I. BACKGROUND
      Champion provides uniformed security services to other companies. In
October 2015, Champion hired Clark as a Personnel Manager. 1 In this
position, Clark was responsible for human resources and employee-related
issues at his branch. 2 His duties included interviewing, hiring, training,
disciplining, and terminating security guards. For example, Clark “trained
security guards and gave guidance about Champion’s policies, including the
alertness policy.” He also “participated in the process of terminating Champion
employees that [sic] appeared to be asleep at work.” 3 As such, Champion
maintains that it was particularly important “for Clark to set a good example
[for] guards and staff by being alert at work.” Generally, it’s important to
Champion that “managers who are enforcing policy are also compliant with
those same policies.”
      According to Clark, he suffered from multiple physical and mental
ailments prior to and during his employment at Champion. 4 Most relevant to



      1   At that time, Champion had four regions—all of which reported to one corporate
office. Clark worked as the Personnel Manager for the Arlington, Texas branch in the South
Central region.
      2 Champion’s Corporate Human Resources Manager, Jeff Mays, determined the job
functions of the regional personnel managers, like Clark.
      3 According to Champion management, the termination “process typically involves
taking a photograph of the employee, obtaining witness statements, and terminating their
employment immediately (i.e., certainly before they do any further work).”
      4
         Clark claims that he has suffered from several mental disorders, such as Post-
Traumatic Stress Disorder, Major Depressive Disorder, Attention-Deficit/Hyperactivity
Disorder, “depression, psychotic,” and Generalized Anxiety Disorder. Clark also claims that
he has suffered from physical ailments like arthritis. But there is no evidence that Clark
alerted Champion about these mental or physical conditions, and he doesn’t claim that they
impacted his employment, so they don’t affect this dispute.
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this case, Clark has been an insulin-dependent Type II diabetic for over a
decade. Clark requested two accommodations for his diabetes, which
Champion granted: First, he requested a refrigerator in his office in which to
store insulin. Second, Clark requested flexibility to leave work to attend doctor
appointments. Champion provided these accommodations throughout Clark’s
tenure at the company. And Clark didn’t request any other accommodations
related to his diabetes.
       But Clark did request exceptions to Champion policies. Due to the nature
of its customer-facing and public-facing business, Champion requires officers
and staff to adhere to specific dress and grooming requirements. Notably,
Champion requires employees to be clean-shaven and wear dress shirts tucked
into their pants. 5 But Clark wanted to “grow [a] small beard.” He believed
Champion should have granted this request because he interacted with fellow
employees, not clients. Champion denied Clark’s request.
       About three months later, Clark renewed his request. This time, Clark
framed his request as one based upon his diabetes. 6 He submitted a note from
his general practitioner. But the note merely stated, “[p]lease excuse [Clark]
from the shaving requirement as he has eczema and dry skin.” Clark does not
assert that eczema or dry skin is a disability. Champion assented to Clark’s
request based on this doctor’s note. But Bill McCoy, Champion’s then-Senior


       5 The grooming policy requires male employees “to maintain a clean shaven
appearance. No beards, long sideburns (below ear), or goatees. Exceptions: . . . beard for
medical need (provide proof to Human Resources).” “All officers are expected to tuck in their
uniform shirt at all times.”
       6Clark’s email to Champion said, “Diabetics face a variety of potential skin problems.
Those with diabetes are at an increased risk for bacterial or fungal skin infection.” His email
then went on to describe folliculitis and ways to manage it—including “reduc[ing] frequency
of shaving (or grow a beard).” But Clark admitted in his deposition that he had never been
diagnosed with folliculitis. Another email of Clark’s asserts that “[t]he medical note that I
provided to Matt for my facial hair exemption is for a medical issue that is a result of my
diabetes. I have been an insulin-dependent diabetic for eight years.”
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Vice President, offered Clark an extra fifty cents per hour for complying with
the shaving policy. Clark rejected the offer.
       Around the same time, Clark also requested an exception to Champion’s
dress code. Clark had recently undergone shoulder surgery. So he requested
an accommodation permitting him to leave his shirt untucked during his
recovery. In support of this request, Clark submitted a note from his doctor.
The note prohibited “manipulation of the left arm until released by the
surgeon.” Because the note did not state that he was unable to tuck in his shirt,
Champion initially denied Clark’s request, thinking that he could tuck in his
shirt without using his left arm. Clark submitted additional documentation
from his doctor, but it still didn’t explicitly say that he was unable to tuck in
his shirt. 7 McCoy told Clark that Champion did not believe his request to leave
his shirt untucked was reasonable.
       After Clark exchanged a series of emails about his dress and grooming
requests with McCoy, Clark asserted that McCoy was harassing him on the
basis of disability. So McCoy referred Clark to Jeff Mays, Champion’s
Corporate Human Resources Director. 8 Clark submitted a formal complaint to
Mays in April 2016. 9 And Mays investigated the allegations. Mays concluded
that McCoy did not harass Clark on the basis of disability. Mays shared these


       7Clark subsequently submitted a note from his doctor that stated, “Clark should not
be performing any activity that affects the left shoulder cuff and causes pain, including
reaching behind his back.”
       8McCoy’s email to Clark stated, “I have copied in the HR manager [Mays] so that he
can obtain your formal complaint and begin an investigation.”
       9  In this complaint, Clark alleges that McCoy was harassing him by: requiring
multiple notes from Clark’s doctors to justify his need for accommodations under the dress
and grooming policy, sending emails that were “unprofessional” and “mocking,” and denying
him a fifty-cent raise on the basis of disability. We think Clark mischaracterizes both the
tone of the emails and McCoy’s offer to pay Clark an additional fifty cents per hour (he had
already received a 4% raise) to incentivize him to shave in compliance with its grooming
policy.
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findings with both McCoy and Clark—though Clark rejected the legitimacy of
the investigation. 10
       Let’s fast forward to August 2016. A Champion employee told Paul
Bents, Clark’s manager, that “Clark was closing his office door for long periods
of time” and she “could often hear him snoring.” 11 The following month, Bents
received a picture anonymously by text message. This picture appeared to
show Clark asleep at his desk at work. “Lack of alertness” at work—which
includes “sleeping or giving the appearance of sleeping”—is an immediately
terminable offense at Champion. 12 But Champion did not terminate Clark at
this time. Champion explained that using an anonymous picture as sole proof
would have deviated from its usual process of terminating a non-alert
employee, which includes collecting two witness statements. Plus, the
supposed violation of the alertness policy was not properly documented. So
Champion took no action against Clark.
       But December 7, 2017 was a different story. On that morning, another
employee told Bents that it appeared Clark was sleeping at his desk during
work hours. So Bents went to Clark’s office and took a picture of him around
8:30am. Both Bents and the reporting employee stated that they heard Clark
breathing. Bents immediately sent to corporate management the picture of




       10At the time of the investigation, Mays reported to McCoy. So Clark argues that the
investigation lacked fairness and impartiality.
       11   Bents circulated a “general reminder email to all office staff reiterating
[Champion’s] open door policy.” Clark contested the policy, and Bents provided him with a
copy of it.
       12 Champion’s Handbook lists terminable offenses, including “[f]ailure to maintain
alertness: . . . sleeping or giving the appearance of sleeping at any time while on duty or on
the client’s property (including breaks) is considered a terminable offense.”
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Clark sleeping and employee statements corroborating the event. 13 A few
minutes later, Clark awoke on his own. Champion asserts that Clark did not
appear to be in physical distress. And Clark does not provide evidence
otherwise. Bents explained to Clark that at least two people saw him sleeping.
Clark told Bents that he didn’t remember getting up that morning or driving
to work, but woke up at his desk. Clark also told Bents that he might have
been experiencing a diabetic emergency, and that he was going to the hospital.
Then Clark left the office.
       While at the emergency room, he received a call from Mays. Mays
terminated Clark for violating the alertness policy. Clark insisted that he
wasn’t sleeping; he said he passed out from low blood sugar. But Mays simply
wished him well in future endeavors.
       Clark contends that Champion fired him because of a condition resulting
from his disability. 14 So Clark sued Champion, alleging violations of the
Americans with Disabilities Act 15 and the Texas Labor Code. 16 Specifically,



       13Specifically, Bents sent the picture to Mays (Corporate Human Resources Manager),
McCoy (then-Senior Vice President), and Matt Sullivan (then-Director of Field Operations,
and the individual to whom Bents reported).
       14Clark claims that he suffered temporary amnesia and lost consciousness due to
complications of his Type II diabetes.
       15 Congress amended the Americans with Disabilities Act in 2008, and the amended
version became effective on January 1, 2009. The amendment “rejected what Congress
perceived to be the Supreme Court’s unduly restrictive approach to analyzing whether [an
individual] suffered from a ‘disability’ for purposes of the ADA.” Patton v. eCardio Diagnostic
LLC, 793 F. Supp. 2d 964, 968 (S.D. Tex. 2011) (alteration in original) (internal quotation
marks omitted). So Congress expanded the definition of “disability” and instructed courts to
construe that definition “broadly.” Id.; see also 42 U.S.C. § 12102. Here, Clark has asserted
that diabetes is the only disability upon which he bases his claims. And Champion does not
contest that diabetes is a qualifying disability. So the amendments will not play a major role
in this case. Although the amended version is known as the “ADAAA,” for consistency and
convenience, we use “ADA” throughout.
       16Clark’s claims under the Texas Labor Code are based on the Texas Commission on
Human Rights Act (TCHRA). “Because TCHRA ‘parallels the language of the [ADA]’, Texas
courts follow ADA law in evaluating TCHRA discrimination claims. E.g., Pegram v.
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Clark alleges discrimination and harassment on the basis of disability,
retaliation, failure to accommodate a disability, and failure to engage in the
interactive process under both the ADA and TCHRA. Accordingly, he claims
entitlement to myriad damages and fees pursuant to state and federal law.
       Both parties filed motions for summary judgment. The district court
granted Champion’s motion, dismissing all of Clark’s claims. Clark timely
appealed.

                                  II. STANDARD OF REVIEW
       “We review a district court’s summary judgment de novo, applying the
same standard as the district court.” 17 Summary judgment is warranted “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. 18 “A fact is material if it
‘might affect the outcome of the suit under the governing law,’ and a dispute is
genuine if ‘the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’ ” 19 “When considering a motion for summary
judgment, the court views all facts and evidence in the light most favorable to
the non-moving party.” 20 “Mere conclusory allegations are insufficient to defeat
summary judgment.” 21




Honeywell, Inc., 361 F.3d 272, 285–87 (5th Cir. 2004). The following ADA analysis therefore
applies equally to the TCHRA.” Williams v. Tarrant Cty. Coll. Dist., 717 F. App’x 440, 444–
45 (5th Cir. 2018).
       17   Tagore v. United States, 735 F.3d 324, 327 (5th Cir. 2013).
       18   FED. R. CIV. P. 56.
       19   Tagore, 735 F.3d at 328 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)).
       20   Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016).
       21   Moss v. BMC Software, Inc., 610 F.3d 917, 922 (5th Cir. 2010).
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                                       III. DISCUSSION
A.     Direct Evidence of Disability Discrimination
       Title II of the ADA prohibits an employer from discriminating against an
employee who is a qualified individual with a disability on the basis of that
disability. 22 “In a discriminatory-termination action under the ADA, the
employee may either present direct evidence that [he] was discriminated
against because of [his] disability or alternatively proceed under the burden-
shifting analysis first articulated in McDonnell Douglas.” 23
       Clark argues that he presented direct evidence of discrimination based
on disability. But the district court disagreed. The district court determined
that Clark would be unable to establish a claim for disability discrimination
through direct evidence, and that “the evidence proffered fails to establish that
[Champion] relied upon any forbidden factor in making the ultimate decision
to fire [Clark].” Clark believes this finding was in error. The district court did
not explain its conclusion. But we agree with it.
       “[D]irect evidence is rare.” 24 And this is not one of those rare cases. We
have defined “direct evidence” as “evidence which, if believed, proves the fact
without inference or presumption.” 25 “A statement or document which shows
‘on its face that an improper criterion served as a basis—not necessarily the
sole basis, but a basis—for the adverse employment action [is] direct evidence
of discrimination.’ ” 26 Clark’s case for direct evidence of discrimination boils


       22   42 U.S.C. § 12112(a).
        E.E.O.C. v. LHC Grp., Inc., 773 F.3d 688, 694 (5th Cir. 2014) (citing McDonnell
       23

Douglas Corp. v. Green, 411 U.S. 792 (1973)). See infra Part III.B for a discussion of the
McDonnell Douglas burden-shifting analysis.
       24   Portis v. First Nat’l Bank of New Albany, 34 F.3d 325, 328 (5th Cir. 1994).
       25   Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (5th Cir. 1993).
       26Herster v. Bd. of Supervisors of La. State Univ., 887 F.3d 177, 185 (5th Cir. 2018)
(quoting Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005)).
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down to the following assertions: (1) Bents, Mays, and Vice President McCoy
knew Clark had diabetes and believed it to be a condition that constitutes a
disability; (2) Bents, Clark’s supervisor, stated that Clark “may have” informed
him about previous problems with his insulin levels; (3) upon learning that co-
workers discovered Clark not awake at his desk during work hours, McCoy
responded, “perfect. . . . let him go”; and (4) after awakening, Clark told Bents
that he was going to the hospital, but neither Bents nor anyone else attempted
to determine whether there was a medical reason for Clark’s conduct.
         This evidence is a far cry from what we have previously found to be direct
evidence of discrimination. For example, in Portis, a demoted bank employee
alleging sex discrimination in violation of Title VII provided evidence of
multiple occasions where her supervisor told her that she “wouldn’t be worth
as much as the men would be to the bank” and “she would be paid less because
she was a woman.” 27 We held that no inference was required to conclude that
the employee was treated differently because of her sex, meaning her
supervisor’s statements constituted direct evidence of discrimination. 28
         There was also direct evidence of discrimination in Etienne, where a
casino’s former employee, an African-American woman, alleged that she was
not promoted to a managerial position due to her race in violation of Title VII. 29
We held that statements made “on several occasions” by the general
manager—who was responsible for filling the position—that he did not allow
“dark skin black person[s to] handle any money at” the casino and that he




         27   Portis, 34 F.3d at 329.
         28   Id. at 329−31.
         29   Etienne v. Spanish Lake Truck & Casino Plaza, L.L.C., 778 F.3d 473, 474 (5th Cir.
2015).
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“thought [the employee] was too black to do various tasks at the casino”
constituted direct evidence of discrimination. 30
       Direct evidence was also present in our 2005 Jones case. There, an
African-American applicant wasn’t hired for any of a casino’s vacant poker
dealer positions and sued the owner under Title VII for race discrimination. 31
The applicant presented evidence that the casino’s poker room manager—who
was responsible for hiring—regularly used racially derogatory language and
stated that “the[y] were not going to hire a black person unless there were
extenuating circumstances.” 32 Further, the applicant presented evidence that
the same manager told his assistant that “good old white boys don’t want
blacks touching their cards in their face” and said to a former employee “maybe
I’ve been told not to hire too many blacks in the poker room.” 33 The court held
that these statements were direct evidence of discrimination. 34
       Our 2006 decision in Rodriguez is also instructive. “This case is one of
those rare ADA cases in which we are presented with direct (rather than
circumstantial) evidence of discriminatory intent: ConAgra and Ms. Zamora
have both admitted that Rodriguez did not get his job because of his allegedly
uncontrolled diabetes.” 35 “In its appellate brief, ConAgra twice concedes (albeit



       30   Id. at 476.
       31   Jones, 427 F.3d at 991.
       32   Id. at 993.
       33   Id.
       34 Id. Although in Portis, Etienne, and Jones we analyzed allegations of direct evidence
of discrimination in the context of Title VII, the principle of what qualifies as direct evidence
is persuasive in the context of the ADA—a sister antidiscrimination statute. See, e.g.,
Rodriguez v. Eli Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016) (citing discrimination cases
under Title VII and the Age Discrimination in Employment Act of 1967 in its analysis of
whether a former employee presented direct evidence of disability discrimination under the
ADA).
       35   Rodriguez v. ConAgra Grocery Prods. Co., 436 F.3d 468, 480 (5th Cir. 2006).
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coupled with an irrelevant caveat) that it withdrew Rodriguez’s job offer
because it regarded him as substantially limited by his diabetes in the major
life activity of working.” 36
       In this case, Champion’s brief makes no such concession. And Clark fails
to point to any statement or document that directly and expressly links his
disability to a decisionmaker’s choice to terminate him. Rather, Clark points
to generalized knowledge about his diabetes and the termination itself as
direct evidence of discriminatory intent. But that’s not direct evidence; it would
require us to make an inference. 37
       Clark’s strongest argument for direct evidence of discrimination is Vice
President McCoy’s statement, “perfect. . . . let him go,” after he received a
picture of Clark not awake at his desk during business hours with the subject
line “Charles Clark sleeping.” “Where a plaintiff offers remarks as direct
evidence, we apply a four-part test to determine whether they are sufficient to
overcome        summary     judgment.” 38    “To    qualify    as    direct   evidence     of
discrimination, workplace comments must be 1) related [to the protected class
of persons of which plaintiff is a member]; 2) proximate in time to the
terminations; 3) made by an individual with authority over the employment



       36   Id. at 479.
       37Similarly, in Herster, we held that an instructor did not show direct evidence of sex
discrimination in her pay discrimination suit against a university under Title VII where her
male supervisor referred to her as a “trailing spouse” who got her job so that her husband
would accept a professorship, said that he thought she was going to have children and be
happy, and that she was acting like a “princess.” 887 F.3d at 186−87. We determined that
these were “stray remarks,” not direct evidence of discrimination. Id. Although the “trailing
spouse” comment may have implied sex was a factor in compensation, someone could be
referred to as a “trailing spouse” irrespective of sex, and the supervisor’s other comments
would have required an inferential leap to prove that the university paid the instructor less
because of her sex. Id.
       38 Rodriguez, 820 F.3d at 764 (quoting Reed v. Neopost USA, Inc., 701 F.3d 434, 441
(5th Cir. 2012)).
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decision at issue; and 4) related to the employment decision at issue.” 39
McCoy’s statement is from the same day as Clark’s termination and it was
about terminating Clark, thus satisfying the second and fourth requirement.
But unlike in Portis, Etienne, and Jones, the evidence suggests that the
speaker (McCoy) was not the ultimate decisionmaker regarding termination. 40
And Clark admits as much in his brief—undercutting his own argument. Plus,
there’s nothing in the email with the picture or McCoy’s response about Clark’s
disability. So McCoy’s statement can’t be direct evidence of disability
discrimination because it fails to satisfy the first and third requirement. And,
problematically, accepting the statement as direct evidence would require an
inference. If the subject line had been something like “Charles Clark in a
diabetic emergency,” and McCoy had responded “perfect. . . . let him go,” that
might pass muster as direct evidence of discrimination. It would certainly be
more akin to the statements in Portis, Etienne, Jones, and Rodriguez, which
all included explicit references to the forbidden factor (sex, race, or disability).
But those are not the facts here. McCoy’s statement is not direct evidence of
discrimination. 41




       39 Id. (quoting Auguster v. Vermilion Par. Sch. Bd., 249 F.3d 400, 405 (5th Cir. 2001)
(alterations in original) (internal quotation marks omitted)).
        McCoy stated that “[he] didn’t make the termination decision.” Rather, “Mays made
       40

the termination decision based on that picture.” And HR Manager “Jeff Mays makes all
termination decisions.”
       41See Rodriguez, 820 F.3d at 764 (finding that a supervisor’s remarks about a former
employee with PTSD being “unstable” are not direct evidence of disability discrimination
where the former employee failed to prove all elements of the four-part test and the court
would have had to make an inference regarding causation); Sandstad v. CB Richard Ellis,
Inc., 309 F.3d 893, 898 (5th Cir. 2002) (finding that a then-President’s remark that the
company had “skip[ed] a generation” in selecting his replacement is not direct evidence of age
discrimination where the remark was ambiguous and the President was not responsible for
the former employee’s termination).
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       At best, Clark could argue that McCoy’s statement provides
circumstantial evidence that his disability influenced Champion’s decision to
fire him. Thus, the district court did not err in finding no direct evidence of
discrimination on the basis of disability. We affirm the district court’s finding
on this issue.
B.     “Qualified Individual”
       Although Clark—like most plaintiffs in disability discrimination suits—
failed to provide direct evidence of discrimination, he may still “proceed under
the burden-shifting analysis first articulated in McDonnell Douglas.” 42 Under
McDonnell Douglas, the plaintiff must carry the initial burden of establishing
a prima facie case of discrimination. 43 “To establish a prima facie
discrimination claim under the ADA, a plaintiff must prove: (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.” 44
       This discussion focuses on the second prong—whether Clark was
“qualified” for the job. The district court found that Clark was “not a qualified
individual under the ADA.” 45 Clark argues that the court erred. A plaintiff can




       42   LHC Grp., Inc., 773 F.3d at 694.
       43   McDonnell Douglas, 411 U.S. at 802.
       44 Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017)
(internal quotation marks omitted); Americans with Disabilities Act of 1990 § 102, 42 U.S.C.
§ 12112(a). If the plaintiff “is successful, then [the defendant] must articulate a legitimate,
nondiscriminatory reason for terminating [the plaintiff].” LHC Grp., Inc., 773 F.3d at 697.
The burden then shifts back to the plaintiff to show that the defendant’s “proffered reason is
pretextual.” Id. But we don’t reach the second or third step of the burden-shifting analysis
because Clark fails to make a prima facie case for discrimination.
       45The district court prefaced its analysis by finding that, “[Clark] has not met his
burden of establishing a prima facie case for disability discrimination because he fails to
adequately address the McDonnell Douglas burden-shifting framework analysis in his
response. The Court will assume arguendo that [Clark] adequately responded to
[Champion’s] Motion and will address each requirement, in turn, needed to establish a prima
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establish that he is “qualified” by showing that “either (1) [he] could perform
the essential functions of the job in spite of [his] disability,” or “(2) that a
reasonable accommodation of [his] disability would have enabled [him] to
perform the essential functions of the job.” 46 “[T]he question is whether he was
qualified at the time of his termination.” 47
       We agree with the district court: The evidence suggests that Clark could
not perform the essential functions of the job with or without an
accommodation. The Champion Handbook details expectations of employees,
including offenses “that may result in . . . immediate termination.” 48 One such
offense is “failure to maintain alertness.” Clark conceded that if he is not awake
at work, he is not alert and can’t do his job. 49
       But Clark still argues in his brief that he is qualified. Yet Clark fails to
cite a single case from the Fifth Circuit to support his argument that he was a



facie case for disability discrimination.” Our analysis makes the same assumption and then
analyzes the “qualified individual” prong.
       46   Moss, 851 F.3d at 417−18 (internal quotation marks omitted).
       47 Id. at 418. Notably, we consider all relevant factors to determine whether an
employee was qualified at the time of his termination. See 42 U.S.C. § 12111(8). “[T]he
inquiry does not stop with [the employee]; the court must also look at whether [the employer]
met its accommodation obligations.” Grubb v. Sw. Airlines, 296 F. App’x 383, 388 (5th Cir.
2008).
       48   The Handbook’s list of terminable offenses includes “[f]ailure to maintain alertness:
. . . sleeping or giving the appearance of sleeping at any time while on duty or on the client’s
property (including breaks) is considered a terminable offense.” The ADA states that
“consideration shall be given to the employer’s judgment as to what functions of a job are
essential, and if an employer has prepared a written description . . . this description shall be
considered evidence of the essential functions of the job.” § 12111(8). Although not in a
written description of Clark’s specific position, being awake is arguably an essential function
of all jobs at Champion.
       49“[McAllister:] If you are not awake at work, you can’t do your job. Right? [Clark:]
“Obviously, yes.” “[T]he ADA does not insulate an employee from adverse action taken by an
employer because of misconduct in the workplace, even if his improper behavior is arguably
attributable to an impairment.” Green v. Medco Health Sols. of Tex., LLC, 947 F. Supp. 2d
712, 729 (N.D. Tex. 2013) (internal quotation marks omitted).
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“qualified individual.” 50 His argument boils down to two points: First, Clark
contends that his sleeping or being unconscious on the job would not pose a
safety risk to others. Even if true, that does not satisfy Clark’s burden of
proving that he could perform the essential functions of his job. And we have
found that an employee in a non-safety-related position was not a “qualified
individual” under the ADA where he repeatedly fell asleep at work due to his
disability. 51
       Second, Clark argues that Champion fails to present evidence of his poor
performance in general. But Champion doesn’t need to. Champion insists that
it terminated Clark because he was sleeping at his desk during the work day.


       50 Rather, all the cases Clark cites are from the Ninth Circuit or a California federal
district court, except for one Southern District of Indiana case. These cases are nonbinding,
and we did not find them persuasive because, among other things, they seem to overlook the
requirement that the employee be qualified at the time of termination. The cases are also
factually distinguishable. Take Halsey, for example. In that case, unlike this one, the
employer did not have a companywide policy that required alertness and made sleeping on
the job a terminable offense, and the terminated employee was a training attendee—not a
personnel manager like Clark who was responsible for training other employees and served
as an example of the policies he enforced. See generally Halsey v. JP Morgan Chase Bank,
No. 08-01335, 2009 WL 3353459 (N.D. Cal. Oct. 16, 2009). In Rednour, the court concluded
that because there is “a triable issue of fact whether [the proposed accommodation] would
have rendered [the former employee] able to perform the essential functions of her job had it
been implemented, we cannot at this stage conclude that [the former employee] was not a
‘qualified individual’—with this accommodation in place—as a matter of law.” Rednour v.
Wayne, 51 F. Supp. 3d 799, 818 (S.D. Ind. 2014). Similarly, in Dark, the court concluded that
there was “a genuine issue of material fact as to whether Dark was qualified with [his
proposed] reasonable accommodation,” where his employer failed to even consider the
proposed accommodation. Dark v. Curry County, 451 F.3d 1078, 1091 (9th Cir. 2006). Unlike
the former employees in Rednour and Dark, Clark has never proposed an accommodation for
diabetes-induced unconsciousness and amnesia that would enable him to do the essential
functions of his job. Clark’s citation to Gambini is also unpersuasive; at best, the
parenthetical he offers is tangentially related to the “qualified individual” issue, and the
Gambini court applied Washington Supreme Court precedent to Washington state law. See
generally Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007). Clark’s citation
to Walgreen is also unpersuasive; the discussion of the prima facie case “focuses solely on the
third prong” and does not address the second prong—whether the former employee was a
“qualified individual.” E.E.O.C. v. Walgreen Co., 34 F. Supp. 3d 1049, 1058−59 (N.D. Cal.
2014).
       51   Grubb, 296 F. App’x at 388.
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                                         No. 18-11613
Even assuming Clark does his job well while he’s awake, by his own admission
he cannot do his job at all when he’s asleep. As we have held, maintaining
consciousness is a basic element of any job. 52 In Grubb, a flight instructor sued
an airline under the ADA after it terminated him because he repeatedly fell
asleep at work. 53 But we held that the instructor was not a “qualified
individual” under the ADA due to his sleep apnea because being conscious and
alert was a basic element of his job performance. 54 Like the ground-based flight
instructor in Grubb, Clark was responsible for training. Although Champion
doesn’t allege Clark fell asleep during training, he certainly wasn’t able to
train—or complete any other essential functions of his job—without being
awake. So Clark failed to prove that he could perform the essential functions
of his job in spite of his disability.
       Clark also fails to show that a reasonable accommodation would have
allowed him to perform his job. Clark requested—and was granted—multiple
accommodations related to his diabetes, including a refrigerator to store
insulin and time off for doctor appointments. But he did not request an



       52   Id.
       53   Id. at 384.
       54  Id. at 388 (“Grubb’s alleged disability involved a basic element of the performance
of his job as a flight instructor, namely being conscious and alert. . . . [C]ourts have repeatedly
approved of ADA-challenged discharges for falling asleep at work, particularly in safety-
sensitive positions. See, e.g., Leonberger v. Martin Marietta Materials, Inc., 231 F.3d 396, 399
(7th Cir. 2000); Cannon v. Monsanto Co., No. 05-5558, 2008 WL 236922, at *4 (E.D. La. Jan.
28, 2008).”). Although Grubb is unpublished, this circuit, like many of its sister circuits, has
a history of published cases establishing that lack of physical presence is a commonly
accepted disqualification for ADA protection. See, e.g., Rogers v. Int’l Marine Terminals, Inc.,
87 F.3d 755, 759 (5th Cir. 1996); Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir.
1994); Tyndall v. Nat’l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994); Carr v. Reno,
23 F.3d 525, 530 (D.C. Cir. 1994). “An employee who does not come to work cannot perform
any of his job functions, essential or otherwise.” Rogers, 87 F.3d at 759 (quoting Tyndall, 31
F.3d at 213) (internal quotation marks omitted). Similarly, an employee who is sleeping or
unconscious at work cannot perform any of the functions of his job, essential or otherwise,
during that time.
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                                      No. 18-11613
accommodation for loss of consciousness due to diabetes. 55 And Clark still has
not identified any accommodation that would have allowed him to perform his
job while suffering from diabetes-induced amnesia and unconsciousness—
probably because interviewing, hiring, training, disciplining, and terminating
security guards requires him to be awake. Thus, Clark has failed to prove that,
at the time of his termination, he could perform the essential functions of his
job—with or without accommodation. So we affirm the district court’s finding
that Clark was not a “qualified individual.”
C.     Disability-based Harassment
       The next issue is whether the district court erred in finding that Clark’s
“disability harassment claim fails to meet the standards imposed by the Fifth
Circuit.” Clark argues that he was subjected to “a long and ongoing pattern of
harassment” due to “conditions arising from his diabetes.” Specifically, Clark
asserts that he developed eczema and dry skin because of his diabetes, which
prevented him from following Champion’s policy requiring employees to
maintain clean-shaven faces. Clark alleges that Champion denied him part of
a raise because of this inability to shave. And Clark alleges that, due to surgery
on his left shoulder, he was unable to follow Champion’s dress code requiring
that employees tuck in their shirts. Clark claims that he was subjected to
continuing ridicule relating to these dress code and grooming requirements.
       To prevail on a claim of disability-based harassment, “the plaintiff must
prove: (1) that she belongs to a protected group; (2) that she was subjected to
unwelcome harassment; (3) that the harassment complained of was based on
her disability or disabilities; (4) that the harassment complained of affected a
term, condition, or privilege of employment; and (5) that the employer knew or



        “It is the plaintiff’s burden to request reasonable accommodations.” Jenkins v. Cleco
       55

Power, LLC, 487 F.3d 309, 315 (5th Cir. 2007).
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                                         No. 18-11613
should have known of the harassment and failed to take prompt, remedial
action.” 56 The parties don’t dispute that Clark belongs to a protected group. So
we assume for argument’s sake that he does.
       Importantly, the disability-based “harassment must be sufficiently
pervasive or severe to alter the conditions of employment and create an abusive
working environment.” 57 “In determining whether a work environment is
abusive, we consider the entirety of the evidence in the record, including ‘the
frequency of the discriminatory conduct, its severity, whether it is physically
threatening or humiliating, or a mere offensive utterance, and whether it
unreasonably interferes with an employee’s work performance.’ ” 58
       Here, Clark’s disability-based harassment claim is based upon a
disagreement with Champion regarding his compliance with the company’s
dress and grooming policy. In support of Clark’s allegations, he described a
series of emails with Champion. These emails capture a disagreement between
Clark and Champion regarding terms of employment and accommodations. 59
And we held in Credeur that a disagreement with an employer over terms of
employment or an accommodation do not amount to harassment. 60 In fact, we




       56   Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235−36 (5th Cir. 2001).
       57Credeur v. Louisiana Through Office of Att’y Gen., 860 F.3d 785, 796 (5th Cir. 2017)
(quoting Flowers, 247 F.3d at 236).
       58   Id. (quoting Flowers, 247 F.3d at 236).
       59For example, Clark requested an accommodation post-shoulder surgery exempting
him from the requirement to tuck in his shirt. But the doctor’s note he provided simply
prohibited “manipulation of the left arm until released by the surgeon”; it did not state
whether that limitation would prevent Clark from tucking in his shirt. Champion wanted
more clarity, so Clark submitted additional medical documentation. Also, when Champion
agreed to exempt Clark from the shaving requirement for medical reasons, it offered him an
additional fifty cents per hour if he would become compliant with the clean-shaven policy.
Clark asserted that this was harassment and that he was denied a raise.
        Credeur, 860 F.3d at 797 (affirming summary judgment for the employer on former
       60

employee’s harassment claims and finding that disputes with her supervisors concerning job
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                                        No. 18-11613
contrasted the employee−plaintiff’s claims in Credeur to those of the
employee−plaintiff in Flowers, where the alleged harassment included
“humiliating and offensive ad hominem attacks that had no rational relation
to Flowers’s work performance. The conduct Credeur identifies is not at all
analogous.” 61 Notably, Clark does not allege any ad hominem attacks, teasing,
physical or verbal threats, or inappropriate language. Clark’s allegations are
like those in Credeur, not Flowers. Even assuming that the alleged harassment
was based on Clark’s disability, it was not severe or pervasive and did not
create an abusive working environment. So Clark’s disability-based
harassment claim is unavailing.
       But the district court found another reason why Clark’s claim fails: 62
Clark failed to satisfy prong three—that is, he didn’t show that the harassment
was based on his disability. The doctor’s letter excusing Clark from shaving
mentions “eczema and dry skin”—not diabetes. 63 The only evidence Clark
provided to connect the alleged harassment to his diabetes is his own


performance, workplace rules, and reasonable accommodations were not “harassment” and
did not create a hostile work environment).
       61 Id. at 796 (discussing Flowers, 247 F.3d at 237). In Flowers, we held that there was
sufficient evidence that the employer harassed an HIV-positive employee where, once her
HIV-positive status became known, her supervisors suddenly avoided her, intercepted or
eavesdropped on her calls, refused to shake hands or socialize with her, gave her negative
performance appraisals for the first time, lured her into adversarial meetings on false
pretenses, “randomly” drug-tested her four times in one week, called her a “bitch,” and
ultimately fired her. Flowers, 247 F.3d at 236−37.
       62  Although the district court did not address whether the alleged harassment was
severe or pervasive, we may affirm a grant of summary judgment on any ground the record
supports. Windham v. Harris County, 875 F.3d 229, 234 (5th Cir. 2017) (citing United States
ex rel. King v. Solvay Pharm., Inc., 871 F.3d 318, 323 (5th Cir. 2017)); Griffin v. United Parcel
Serv., Inc., 661 F.3d 216, 221 (5th Cir. 2011) (“Even if we do not agree with the reasons given
by the district court to support summary judgment, we may affirm the district court’s ruling
on any grounds supported by the record.”) (quoting Lifecare Hosps., Inc. v. Health Plus of La.,
Inc., 418 F.3d 436, 439 (5th Cir. 2005)).
        The letter states, “[p]lease excuse [Clark] from the shaving requirement as he has
       63

eczema and dry skin.”
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                                       No. 18-11613
conclusory assertion that his diabetes contributes to his skin condition, and
thus his inability to shave. That is not enough. 64 So any alleged harassment is
not based on Clark’s diabetic condition.
       Likewise, the conduct complained of regarding Champion’s dress code is
based upon Clark’s alleged inability to tuck in his shirt due to surgery on his
left shoulder, not diabetes. Yet Clark repeatedly stated in his deposition that
diabetes is the only disability that is the basis for his lawsuit. In sum, Clark
failed to sufficiently connect his harassment claims—based on his alleged
inability to shave or tuck in his shirt—to his diabetes. So Clark failed to satisfy
the third prong—that the alleged harassment was based on his disability. As
such, we affirm the district court’s finding on this issue. 65
D.     Accommodations
       The next issue is whether the district court erred in finding no failure to
accommodate Clark’s disability and no failure to engage in an interactive
process. “Under the ADA, it is unlawful for an employer to fail to accommodate


       64 Credeur, 860 F.3d at 793 (“ ‘[A]n employee’s unsupported testimony that she could
perform her job functions from home’ does not create a genuine dispute of fact to preclude
summary judgment.”) (quoting E.E.O.C. v. Ford Motor Co., 782 F.3d 753, 763−64 (6th Cir.
2015) (en banc)); Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 n.10 (5th Cir. 1996)
(“[C]onclusory allegations, speculation, and unsubstantiated assertions [regarding an alleged
disability] are inadequate to satisfy the [former employee]’s burden.”) (quoting Forsyth v.
Barr, 19 F.3d 1527, 1533 (5th Cir. 1994)).
       65 Clark also asserted disability-based harassment claims under the Texas Labor
Code, pursuant to which a charge “must be filed not later than the 180th day after the date
the alleged unlawful employment practice occurred.” TEX. LABOR CODE § 21.202(a). As the
district court explained, “[a] charge filed with the EEOC, more than 180 days after the
occurrence of an alleged unlawful employment practice under the [TCHRA], is subject to
dismissal as time-barred. See Adams v. DaimlerChrysler Servs. NA LLC, 252 F. App’x 681,
683 (5th Cir. 2007).” Clark filed his EEOC charge on January 10, 2017. Applying the
limitation imposed by the TCHRA, the district court concluded that “all state law claims
arising before July 14, 2016[] must be dismissed as time-barred.” We agree with the district
court’s analysis. Here, the alleged disability-based harassment occurred in the spring of 2016,
so Clark’s harassment claim would be time barred. To the extent he alleges that the
harassment continued on or after July 14, 2016, the analysis regarding Clark’s harassment
claim under the ADA would apply to the TCHRA as well. See supra note 16.
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                                         No. 18-11613
the known limitations of an employee’s disability.” 66 Clark “must prove the
following statutory elements to prevail in [his] failure-to-accommodate claim:
(1) [he] is a qualified individual with a disability; (2) the disability and its
consequential limitations were known by the covered employer; and (3) the
employer failed to make reasonable accommodations for such known
limitations.” 67 As explained in Part III.B, Clark failed to show that he’s a
“qualified individual” under the ADA. That failure alone is fatal to his failure-
to-accommodate claim. 68
       Even if Clark was a “qualified individual,” his failure-to-accommodate
claim fails at a more fundamental level. Clark devoted a mere two sentences
to his argument on this issue. 69 As the district court noted, he “fails to pinpoint
any request(s) that were not subsequently accommodated.” Clark did not
request an accommodation for loss of consciousness due to diabetes. Clark
claims he “never had an opportunity to seek an accommodation or request the
interactive process because he was fired while he was in the emergency room.”
This “argument” is more of an admission. Clark had ample opportunity—over
a year, in fact—to request an accommodation. 70 “It is the plaintiff’s burden to


       66   Credeur, 860 F.3d at 792 (quoting Griffin, 661 F.3d at 224).
       67Feist v. Louisiana, Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 452 (5th
Cir. 2013) (internal quotation marks omitted).
       68See Credeur, 860 F.3d at 792 (analyzing Credeur’s failure-to-accommodate claim
and noting, “[a]t issue is whether Credeur is a ‘qualified’ individual within the meaning of
the ADA. If she is not, our inquiry ends.”).
       69Contrary to Rule 28, this section also lacks a single citation to the record or case
law. FED. R. APP. P. 28(a)(8) (The appellant’s brief “must contain: (A) appellant’s contentions
and the reasons for them, with citations to the authorities and parts of the record on which
appellant relies . . . .”).
       70 Clark knew about his diabetes before he started work at Champion. And he claims
unconsciousness is a potential effect of his condition. Clark worked at Champion for over a
year, but he never requested an accommodation to address diabetes-induced unconsciousness
or amnesia. Yet he managed to make multiple other diabetes-related accommodation
requests during that time. And, as discussed, Champion granted those requests.
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                                       No. 18-11613
request reasonable accommodations.” 71 Clark did not carry his burden.
Regardless of the framing, Clark is really requesting an after-the-fact,
retroactive exception to the alertness policy as an accommodation for his
underlying disability—diabetes. But that is not an accommodation under the
ADA. 72
       Clark’s failure to request an accommodation means that his failure-to
engage-in-the-interactive-process claim is dead on arrival: Without a request,
Champion could not possibly fail to engage in an interactive process. 73 As such,
we affirm the district court’s findings regarding Clark’s failure-to-
accommodate and failure-to-engage-in-the-interactive-process claims.
E.     Retaliation




       71Jenkins, 487 F.3d at 315 (“‘In general . . . it is the responsibility of the individual
with the disability to inform the employer that an accommodation is needed.’ . . . If the
employee fails to request an accommodation, the employer cannot be held liable for failing to
provide one.”); see Taylor, 93 F.3d at 165 (citing 29 C.F.R. § 1630.9, App. (1995)).
       72 Moss, 851 F.3d at 418 n.2 (“Moss also argues that ‘continued employment in his own
Deputy Constable position’ would be a reasonable accommodation, but we fail to see how this
is an accommodation at all, let alone a reasonable accommodation.”); Burch v. Coca-Cola Co.,
119 F.3d 305, 319 (5th Cir. 1997) (finding that a qualified individual with a disability who
asks only to return to work—but who is instead fired by his employer—has not advanced a
failure to accommodate claim under § 12112(b)(5)); see also Siefken v. Vill. of Arlington
Heights, 65 F.3d 664, 666 (7th Cir. 1995) (granting summary judgment in ADA case in which
the plaintiff-employee conceded he was terminated for failing to monitor and control his
diabetes because “Siefken is not asking for an accommodation; he is not asking the Village to
change anything. He is asking for another chance . . . . But the ADA does not require this”),
cited with approval in Burch, 119 F.3d at 319 n.14.
       73 “[O]nce the employee presents a request for an accommodation, the employer is
required to engage in the interactive process so that together they can determine what
reasonable accommodations might be available.” E.E.O.C. v. Chevron Phillips Chem. Co.,
LP, 570 F.3d 606, 622 (5th Cir. 2009); see Taylor, 93 F.3d at 165 (“[I]t is the employee’s
initial request for an accommodation which triggers the employer’s obligation to participate
in the interactive process of determining one. If the employee fails to request an
accommodation, the employer cannot be held liable for failing to provide one.”) (internal
citation omitted).
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                                        No. 18-11613
      The next issue is whether the district court erred in finding that Clark
failed to present sufficient evidence to support his retaliation claim. 74
McDonnell Douglas provides the burden-shifting framework for claims of
unlawful retaliation under the ADA. 75 “To show an unlawful retaliation, a
plaintiff must establish a prima facie case of (1) engagement in an activity
protected by the ADA, (2) an adverse employment action, and (3) a causal
connection between the protected act and the adverse action.” 76 If “the plaintiff
has established a prima facie case, the defendant must come forward with a
legitimate, non-discriminatory reason for the adverse employment action.” 77 If
the defendant does so, “the plaintiff must adduce sufficient evidence that the
proffered reason is a pretext for retaliation. Ultimately, the employee must
show that ‘but for’ the protected activity, the adverse employment action would
not have occurred.” 78
      Here, Clark asserts that he suffered retaliation—in the form of
termination—after lodging an internal complaint alleging disability-based
harassment. Clark easily satisfied prong two of the prima facie case: He
suffered an adverse employment action when he was fired. But Clark runs into
trouble with the rest of the test. Assuming that filing the complaint was
protected activity, we agree with the district court that Clark failed to show a
causal connection between his filing of the internal complaint and his



      74 The ADA states that “[n]o person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
      75   Sherrod v. Am. Airlines, Inc., 132 F.3d 1112, 1112 (5th Cir. 1998).
      76Nall v. BNSF Ry. Co., 917 F.3d 335, 348−49 (5th Cir. 2019) (quoting Seaman v.
CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999)); see also Credeur, 860 F.3d at 797 (same).
      77   Nall, 917 F.3d 335, 349 (5th Cir. 2019) (quoting Seaman, 179 F.3d at 301).
      78   Id.
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                                         No. 18-11613
termination. To establish this requisite causal link—prong three of 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.” 79
       Clark attempts to buttress his retaliation claim with emails suggesting
that certain superiors at Champion were eager to see Clark leave—voluntarily
or involuntarily. 80 To be sure, these emails are not exonerating. But neither
are they incriminating. What matters is that Clark doesn’t connect his alleged
“protected activity”—his complaint about the handling of the grooming issues
filed eight months prior to his termination—to his superiors’ desire for him to
leave. And some of the statements on which Clark relies explicitly undercut
any argument for causation. One email chain specifically references Clark’s
handling of unrelated overtime issues as the reason for his supervisor’s
dissatisfaction: “Hopefully [Clark] resigns soon because if he had his way our
OT would still be at 8%.” Even if Clark’s superiors were out to get him because
of his handling of overtime, or for some other undisclosed reason, he presented



       79   Sherrod, 132 F.3d at 1122.
       80For example, there are multiple emails between management saying variations of
“hopefully [Clark] resigns soon.” Another email—which Clark’s immediate supervisor sent
about seven months after Clark filed his complaint—stated that he wanted to “start applying
more pressure for him to leave.” When asked about this email during his deposition, however,
Clark’s supervisor referenced Clark’s “bad attitude” and “excessive absences” as reasons for
wanting him to leave. And Clark does not present any contradictory evidence.
       Clark also relied on the timing of these emails as circumstantial evidence of causation.
He emphasizes that these emails were all sent after he filed his complaint in April 2016. But
the timing may hurt more than it helps him. The vast majority of Clark’s employment at
Champion occurred after he filed the internal complaint; Champion did not terminate him
until eight months later. Plus, managers exchanged these emails over many months, and
they did not originate immediately—or even shortly—after Clark filed the internal
complaint. Rather, it seems as though independent events (like Clark’s absences or receiving
reports of him sleeping in his office) prompted these emails. Also, in July 2016, Clark told
Mays that he would “continue to do [his] job for the next few months until [he] graduates
from EMT school[] and find[s] a position in the medical field.” So it seems like Clark’s
departure announcement—not his internal complaint—prompted an email chain asking
whether Clark had given notice, and a response hoping that he would soon.
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                                        No. 18-11613
no evidence connecting his internal complaint to his termination. 81 This failure
to show a prima facie case is a sufficient basis to affirm the district court’s
grant of summary judgment on this issue in Champion’s favor. 82


       81 See Reed, 701 F.3d at 440 n.4 (“In addition, to the extent that Reed complains that
the real reason for his termination was his coworkers’ ‘setup job’ so that they could oust him
out of a competition for a free cruise, his claim is not cognizable. The [state civil rights law]
does not protect an employee against unfair business decisions, only discriminatory ones.”)
(citing Nieto v. L & H Packing Co., 108 F.3d 621, 624 (5th Cir. 1997)).
       82 Even if Clark established a prima facie case of unlawful retaliation, his claim would
remain unavailing. Clark failed to show that Champion’s proffered legitimate, non-
discriminatory reason for Clark’s termination—his sleeping at work in violation of
Champion’s alertness policy—was pretextual. “A plaintiff may show pretext either through
evidence of disparate treatment or by showing that the employer’s proffered explanation is
false or unworthy of credence.” Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017)
(quoting Jackson v. Cal-W. Packaging Corp., 602 F.3d 374, 378−79 (5th Cir. 2010)). Clark
doesn’t argue that Champion treated other employees found sleeping or unconscious at work
any differently. In fact, the evidence shows that Champion previously terminated employees
for sleeping on the job in violation of the alertness policy. And Clark was involved in at least
one of those terminations. So he cannot use disparate treatment to show pretext. See Wright
v. Chevron Phillips Chem. Co., L.P., 734 F. App’x 931, 934 (5th Cir. 2018) (affirming summary
judgment in discrimination case because plaintiff failed to show evidence that other
employees caught sleeping on the job received more favorable treatment).
        But Clark can’t show that Champion’s reason for termination was false either. “An
explanation is false or unworthy of credence if it is not the real reason for the adverse
employment action.” Caldwell, 850 F.3d at 242 (quoting Laxton v. Gap Inc., 333 F.3d 572,
578 (5th Cir. 2003)). It’s not the ultimate accuracy of Champion’s reason that matters, but
only whether it believed—in good faith—that Clark violated company policy by failing to be
awake and alert at work. See, e.g., Jackson, 602 F.3d at 379 (explaining that a former
employee’s claim of innocence relating to the proffered basis for termination—violation of the
company’s written sexual harassment policy—does not create a factual issue regarding the
falsity of that reason because the issue is not whether the former employee violated the
policy; rather, it is whether the employer believed the former employee violated the policy
and acted upon that belief in good faith); Miller v. Metro Ford Auto. Sales, Inc., 519 F. App’x
850, 853 (5th Cir. 2013) (“Importantly, even if Metro Ford mistakenly assumed that Miller
intentionally violated company policy by violating the consignment agreement, that mistake
is insufficient to demonstrate that Metro Ford’s stated rationale for terminating him was
mere pretext for retaliation.”). The evidence shows that Champion had received multiple
reports from multiple employees about Clark sleeping in his office during the workday. So he
had a history making it believable that he would be sleeping in his office. And on the day
Champion terminated Clark, multiple employees reported seeing Clark sleeping in his office
and in no apparent distress. In fact, Clark admitted that he was not awake and unable to do
work that morning. But then Clark awakened on his own—without medication or
intervention—and walked about the office talking normally. Sleeping (or appearing to sleep)
at one’s desk during the workday is an immediately terminable offense at Champion. And
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                                         No. 18-11613
        Clark has not proven that he would not have been terminated “but for”
filing an internal harassment complaint eight months prior. 83 So we affirm the
district court’s grant of summary judgment for Champion relating to Clark’s
retaliation claim.
F.      Damages
        Finally, Clark argues that the district court erred in denying all of his
claims for damages. Clark asserts in a conclusory manner that his “claims
should be reinstated and that he is entitled to litigate his damages for back
pay, front pay, compensatory damages, attorney fees, costs and interests.” As
discussed in Parts III.A−E, we agree with the district court’s grant of summary
judgment for Champion. Absent a finding of liability, Clark is not entitled to
litigate his damages claims. So we affirm the district court on this issue as
well.

                                         CONCLUSION
        For these reasons, we AFFIRM the district court across the board.




Champion management actively enforced this policy. Clark never provided any medical
evidence that a diabetic emergency caused him to lose consciousness the morning of his
termination. Based on these facts, it seems like Champion believed in good faith that Clark
had violated its alertness policy. So Clark’s argument that the reason was pretextual is
unpersuasive.
        83   See Sherrod, 132 F.3d at 1122.
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