1Pursuant 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this opinion should not be published and is not precedent except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.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 97-41458

Summary Calendar

GLENNA SCHUBERT; ET AL

Plaintiffs

ANGELENA SIMMONS

Plaintiff - Appellant

VERSUS

J C PENNY COMPANY, INCORPORATED; ET AL

Defendants

J C PENNY COMPANY, INCORPORATED

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

(2:95-CV-180)

March 1, 1999

Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

Per Curiam:1

Angelena Simmons (“Simmons”) sued her former employer, J.C.

Penny, for violating her rights under the Americans With

Disabilities Act (“ADA”). She appeals the district court’s grant

of summary judgment in favor of J.C. Penny. For the following
2

reasons, we affirm.

BACKGROUND

In 1992, J.C. Penny relocated its corporate headquarters to

Legacy Drive in Plano Texas (“Legacy Complex”). Simmons worked as

a print operator for J.C. Penny at the time of the move. Simmons

complained to J.C. Penny’s management that the indoor air and

environment at the Legacy Complex was causing her and other

employees to become ill and unable to work. From 1992 until her

termination in 1994, J.C. Penny repeatedly warned and counseled

Simmons about her excessive absences and tardiness. In June 1994,

Simmons received a final warning for excessive tardiness. In

August 1994, J.C. Penny fired Simmons for arriving late three more

times. 

Simmons, along with four other plaintiffs, sued J.C. Penny

and several other defendants in Texas state court. Among other

things, Simmons alleged that J.C. Penny violated the ADA by

discriminating and retaliating against her for complaining about

the poor air quality at the Legacy Complex. J.C. Penny and the

other defendants removed the case to federal court. The district

court remanded the state law claims to state court but retained

jurisdiction over Simmons’ ADA claim. J.C. Penny moved for summary

judgment. The district court granted J.C. Penny’s motion. Simmons

appeals. 

DISCUSSION

I. Jurisdiction

We must examine the basis of our jurisdiction on our own
3

motion if necessary. See Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987). Rule 58 provides in part that “[every judgment shall

be set forth on a separate document. A judgment is effective only

when so set forth.” Fed. R. Civ. P. 58. The requirement of a

separate document may be waived, however. See Simon v. City of

Clute, Tex., 825 F.2d 940, 942 (5th Cir. 1987). The district court

entered an order granting Penny’s motion for summary judgment but

failed to enter a final judgment dismissing Simmons’ complaint.

Because J.C. Penny waived its objections to the lack of a separate

document, we may consider Simmons’ appeal.

II. Summary Judgment on the ADA Claims

We review the grant of summary judgment de novo, using the

same criteria used by the district court. See Easley v. Southern

Shipbuilding Corp., 936 F.2d 839, 841-42 (5th Cir. 1991). 

 A. ADA Disability Claim

To establish an ADA discrimination claim, a plaintiff must

show that: (1) she has a disability; (2) she was qualified for the

job; and (3) an adverse employment decision was made solely because

of her disability. See Rizzo v. Children’s World Learning Centers,

Inc., 84 F.3d 758, 763 (5th Cir. 1996). “[O]nce established, [a]

prima facie case raises an inference of discrimination. The burden

of production then shifts to the defendant to proffer a legitimate,

nondiscriminatory reason for the challenged employment action.”

Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 992 (5th Cir. 1996) (en

banc) (citations omitted). “If the [defendant] produces any

evidence which, taken as true, would permit the conclusion that
4

there was a nondiscriminatory reason for the adverse action, then

the [defendant] has satisfied its burden of production.” Daigle v.

Liberty Life Ins. Co., 70 F.3d 394, 396 (5th Cir. 1995).

If the defendant meets its burden, the presumption of

discrimination disappears. See Rhodes, 75 F.3d at 993. “However,

the plaintiff is accorded the opportunity to demonstrate that the

defendant’s articulated rationale was merely a pretext for

discrimination.” Id. A plaintiff can avoid summary judgment by

(1) creating a fact issue as to whether the defendant’s stated

reason is what actually motivated the defendant and (2) creating a

reasonable inference that the plaintiff’s disability was a

determinative factor in the adverse employment action. See id. at

994. 

In the case at bar, the district court assumed that Simmons

established a prima facie ADA discrimination case. The district

court concluded that J.C. Penny’s proffered reason for firing

Simmons--that she repeatedly failed to follow its tardiness policy-

-supported a finding that Simmons was not fired because of her

disability. Because J.C. Penny proffered a nondiscriminatory

reason for firing Simmons, the presumption of discrimination

disappeared and Simmons was given an opportunity to show that the

proffered reason was a pretext for discrimination. 

The district court found that Simmons presented some evidence

that J.C. Penny’s proffered reason was a pretext. According to

Simmons, J.C. Penny fired her for complaining about the poor air

quality. Noting that firing someone for complaining about air
 

2Simmons also argues that she offered direct evidence of

discrimination, making summary judgment inappropriate. We find no

direct evidence of discrimination, however.

5

quality does not violate the ADA, the district court concluded that

Simmons’ evidence failed to created a genuine issue of material

fact as to whether J.C. Penny’s reason for firing her was a pretext

for discrimination.

Simmons maintains that the district court erred by granting

summary judgment for J.C. Penny.2 We disagree. Simmons’ evidence

does not create a reasonable inference that her alleged disability

was a determinative factor in J.C. Penny’s decision to fire her.

Simmons presented some evidence that J.C. Penny terminated her

because of her complaints about the air quality at the Legacy

Complex. She has presented no evidence, however, that J.C. Penny

terminated her because of her alleged disability. Accordingly, the

district court properly granted summary judgment for J.C. Penny on

Simmons’ ADA discrimination claim.

 B. ADA Retaliation Claim

Simmons’ allegation that J.C. Penny terminated her in

retaliation for complaining about the poor indoor air quality does

not implicate the ADA’s anti-retaliation provision. See 42

U.S.C.A. § 12203(a) (West 1998). The anti-retaliation provision

provides that “[n]o person shall discriminate against any

individual because such individual has opposed any act or practice

made illegal by this chapter or because such individual has made a

charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under this chapter.” Id.
6

There is no evidence that Simmons was terminated for opposing an

ADA violation or participating in an ADA-related investigation or

proceeding. Therefore, Simmons failed to create an issue of

material fact as to her ADA retaliation claim.

CONCLUSION

We affirm the summary judgment in favor of J.C. Penny.

AFFIRMED.