* Pursuant to 5 TH C IR . R. 47.5, the Court has determ ined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. 1 United States Court of A ppeals Fifth Circuit 

## FILED July 13, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30953 (Sum mary Calendar)

WESLEY R. GREENE, Pl aint iff- Appellant,
versus JOHN E. POTTER, U.S. POSTMASTER GENERAL, Defendant-Appellee.

Appeal from the United States District Court fo r the Western District of Louisiana

(6:02-CV-1567) Before DeMOSS, STEWART, and PRADO, Circuit Judges. PER CURIAM: * This appeal aris es f

rom the district court’s grant of judgment as a matter of law, pursuant to Federal Rules of Civil Procedure Rule 52(c), in favor of the United States Postal Service2

(“Postal Service”) on Walt er Greene’s claims of discriminat ion under the Civil Right s Act of 1964, 42 U.S.C. § 2000e-16, and the Rehabilitation Act of 1973, 29 U.S.C. § 794. We affirm t he district court’s judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND Greene, an African-American male, suffers from Chronic Paranoid Schizophrenia and Depression. Greene worked as a distribution clerk fo r the Postal Service in New Iberia, Loui siana from October 16, 1982 to Septem ber 15, 2000. On June 21, 2000, the Postal Service sent a Notice of Proposed Rem oval to Greene, citing his unsatisfactory attendance due to excessive unscheduled absences wit hin a two-m onth period. Greene contends that the absences
were a resu lt of his medical condition but declined to submit medical documentation. The Postal Service eventually terminated his employment. Prior to his term

inat io n, the Postal Service referred Greene to the Em ployee Assistance Program and alt ered his schedule twice , but the unscheduled absences continued. According to the Postal Service, Greene’s absences disrupted postal operations. Greene argues that Robbie LeBlanc, a whit e male, non-disabled distribution clerk fo r the Postal Service, accrued even mo re unscheduled absences th an himself wit hout the consequence of te rmination. In response, the Postal Service maint ains th at LeBlanc was ty pically lat e ret urning from l unch, which did not disrupt postal operations. On July 24, 2002, Greene filed suit against the Postal Service, alleging disc ri mination based on his race and disabilit y. The Postal Service filed a motion fo r summary j udgment. On May 4, 2004, the district court granted in part and denied in part summary judgment. The court3

granted the mo tion on Greene’s claims u nder the Am ericans with Disabilities Act and retaliatory discharge, and denied the motion on Greene’s claims under the Rehabilitation Act of 1973 and Ti tle VII of the Civil Rights Act of 1964. On August 14, 2006, the district court conducted a bench tri al an d at the close of Greene’s case-in-chief, dismissed the discriminat io n claims wit h prejudic e pursuant to Rule 52(c). On September 8, 2006, Greene filed a timely notice of appeal. II. STANDARD OF REVIEW Rule 52(c) provides th at “[i]f during a tri al without a j ury a party has been fully heard on
an issue and the court finds against the party on that i ssue, the court may enter judgment as a mat ter of law against th at party .” We review findings of fact mad e pursuant to Rule 52(c) for clear error and conclusions of law de novo. Bursztajn v. United States , 367 F.3d 485, 488-89 (5th Cir. 2004). III. DISCUSSION A. Disabilit y Discriminat io n To establish a prima facie case of disabilit y discriminat io n und er the Rehabilit ation Act, the employe e must prove the f ollo wing: (1) he suffers from a disability; (2) he was otherwise q ualified fo r the work; (3) he worked fo r an employer th at receives federal assistance; and (4 ) he
was discriminat ed against solely because of his disabilit y. 29 U.S.C. §§ 701 e t seq. ; Hileman v. City of Dallas, Tex
. , 115 F.3d 352, 353 (5th Ci r. 1997). Section 705 of the Rehabilitation Act defines disabilit y as a “phy sical or mental impairment that substantially limits one or more of the majo r life activit ies of such individual; a record of such impai rment; or being regarded as having4

such an impairment .” 29 U.S.C. § 705(9)(B). “Merely having an impairment does not make one disabled fo r purpo ses of the ADA. Cl aimant s also need to demonstrate that the impairment limit s a majo r life activity.” T oyota Motor Mfg. Ky. v. Williams , 534 U.S. 184, 194 (2002). Major life activit ies include functio ns such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. 1630.2. In this case, Greene asserts th at he suffers from a “ment al impairment th at substantially limit s one or mo re of [his] majo r life act i vit ies
. . . .” Whether a person is substantially limited in
a majo r life activit y mu st be determined on a case-by -case basis. S utton v. United Airlines, Inc. , 527 U.S. 471, 481 (1999). “If a person is taking measures t o correct f or, or m it igate, a physical
or ment al impairment , the effects of th ose measures-both positive and negative-must be taken int o account when judging whether that person is ‘substantially limited’ in a major life activity and thus ‘disabled’ under the Act.” I d. at 482. Therefore, Greene must prove he is disabled in light of any mit igating measures, including medication. Greene maint ains th at the medication prescribed to treat his Chronic Paranoid Schizophrenia and Depression cause d him t o s leep late, which in turn, made him unable to arrive at work i n a timely manner. The parties stipulated that Greene was diagnosed with Chronic Paranoid Schizophrenia and Major Depression. The record lacks evidence, however, that his condition affected a majo r life activit y. To establish his disability, Greene relied so lely o n t he pre-tri al sti

pu lat io n regarding his medical condition and his own testimony regarding the drowsiness experienced aft er taking the prescribed medication. At tri al, Greene also adm it ted to not taking his medication on a regular schedule, as necessary to control his symptoms, and to his5

occasional use of drugs and alcohol. Alt hough Greene contends that he provided the Postal Service wit h a doctor’s note stating the need fo r him to st art work at a l ater time, he did not int roduce this evidence at tri al. Further, Greene presented no medical evidence that his i mpairment limit ed his majo r life activit y of sleeping or working or th at his imp airment int erfered wit h his abil

it y t o be in attendance at work. On the other hand, the Postal Service estab lished t hat i

t ref erred Greene to the Employee Assistance Program on May 27, 1999, and again on December 20, 1999. The Postal Service also adjusted Greene’s start time at two points during his employment
. Based on the evidence, the di strict court properl y fo und that Greene
was not d isabled under the Rehabilitation Act. Accordingly, Greene failed to establish a prima facie case of disability discrimination. B. Race Discrimination To establish a prima facie case of race discrimination, a plaintiff must show the fo llo wing: (1) he is a member of a protected group; (2) he w as qualified for his position of employment ; (3) he suffered an adverse employment action; and (4) som eone outside his protected group replaced him. S t. Mary’s Honor Center v. Hicks , 509 U.S. 502, 506 (1993). If the plaint iff establishes a prima facie case, then the burden shifts to the def endant to show a legit imat e, non-discriminat ory justification for the adverse employment action. P rice v. Federal Express Corp
. , 283 F.3d 715, 720 (5th Ci r. 2002). If the defendant fulfills this burden, then the plaint iff must prove the defendant’s prof fer ed reason for the employment action is merely a pretext for intentional race discrimination. Price , 283 F.3d at 720.6

As a legit imat e, non-discriminatory justification for Greene’s termination, the Postal Service maintains that Greene had twenty-six unexcused absences documented between February 14, and May 17, 2000, which impacted postal operations. Greene contends that Robbie LeBl anc, a white distribution clerk, accumulated more that twenty-six unexcused absences wit hout the consequence of termination. “When a supervisor of one race treats em ployees of the same race more favorably than similarly sit uated employees of another race under circumstances th at are essentially identical, a presumption of discriminat ory int ent is raised.” W allace v. Methodist Hospital Sys. , 271 F.ed 212, 221 (5th Ci

r. 2001) (quoting, B arnes v. Yellow Freight Sys., Inc. , 778 F.2d 1096, 1 101 (5th Cir. 1985)). To establ

ish disparate treatment, the plaintiff must show that the employer t reated other employees in “nearly identical circumstances” in a different manner. Okoye v. The Univ. of Tex. Houston Health Sci. Ctr. , 245 F.3d 507, 5 14 (5th Cir. 2001). In the situation of a work rule vio lat io n, “a Ti

tle VII plaint iff may establish a prima facie case by showing ‘eit her th at he did not vio lat e the rule or th at, if he did, whit e employees who engaged in similar acts were not p unished similarly.’” Mayberry v. Vought Aircraft Co. , 55 F.3d 1086, 1090 (5th Cir. 1995) (quoting, Green v. Armstrong Rubber Co. , 612 F.2d 967, 968 (5th Cir. 1980)). Unexcused absences and excessive tardiness are vio lati ons of the Postal Service rules and regulations. The rules do not distinguish these violations in terms of “impact” on postal operations. Whether t o designate an absence as scheduled or unscheduled, however, rests in the discretion of the supervisor. Keith LeBlanc testified that Robbie LeBlanc’s absences substantially varied from Greene’s absences in th at Greene caused disruption to postal7

operations. Greene either arrived late or simply failed t o show up for work. On the other hand, Robbie LeBlanc arrived to work but of ten returned lat e from lunch breaks. The district court fo und Keit h Le Blanc’s testimo ny credible and objective on the legitimate, non-discriminatory
reas on offered to j ustify Greene’s termination and the disparate treatment of Greene and Robbie LeBlanc. Moreover, Greene presents no evidence to rebut the Postal Service’s legitimate, nondiscriminat ory reason fo r his term inat io n. The di strict court al so heard testimony that Greene
re ceived leniency on previous occasions for unscheduled tardiness and absences from his supervisor, the Postal Service twice adjusted Greene’s tour time, and he received warnings about his absence to no avail. We conclude that the district court properly held t hat Greene f ailed to show the Postal Service’s reason for terminating him was pretextual. IV. CONCLUSION For the foregoing reasons, we affirm the district court’s judgment.