UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-50369

Summary Calendar

WILLIAM M. ALDRUP,

Plaintiff-Appellant,

versus

LOUIS CALDERA, Secretary of the U.S. Department of Army,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

Decem ber 10, 2001

Before POLITZ, WIENER and PA RKER, Circuit Judges:

POLITZ, Circuit Judge:

William M. Aldrup appeals an adverse summary judgment on his claims of

retaliation under Title VII, discrimination under the ADA, and error committed by

the Merit Systems Protection Board. For the reasons assigned, we affirm.2 BACKGROUND

The present action conc erns the involuntary removal of Aldrup from his

employment as a firefighter by the United States Army. During his fifteen years

of employment, Aldrup filed fifty-one Equal Employment Opportunity complaints,

none resulted in a finding of discrimination.

On November 27, 1997, Aldrup reported for work at the Camp Bullis Fire

Station. Due to staffing shortages, one of the firefighters from the Bullis Station

had to be assigned for the day to the Fort Sam Houston Station. The Bullis Station

had a rotation list for designating firefighters to be sent to other stations in case of

staffing shortages. On the date in question Aldrup was next on the list and was

ordered to report to the Houston Station, some twenty-three miles distant.

Aldrup refused to drive his personal vehicle between the stations, citing a

regulation that prohibits the u se of privately-owned vehicles for government

purposes. He insisted that a government vehicle be provided to transport him

between the stations, even after being informed that no government vehicles were

available and told that he would be reimbursed for the expense of travel. Aldrup

did not report to the Houston Station and his super visors charged him with

insubordination.

When Aldrup was removed from his posi tion he had been employed for3

fifteen years. Prior to the incident resulting in his removal, he had been suspended

twice for insubordination. The suspensions were progressively more severe–the

first, in March, 1996, was for two days and the sec ond, in August, 1997, was for

five days. Aldrup does not contest that he failed to comply with the orders leading

up to the charges of insubordination. Rather, he asserts that he had valid reasons

for not obeying the orders.

Aldrup’s failure to report to the Houston Station constituted his third act of

insubordination and he was removed from federal employment. He appealed to the

Merit Systems Protection Board which affirmed his removal.

Following the decision of the Merit Systems Protection Board Aldrup filed

the present action, complaining that the decision of the Merit Systems Protection

Board was arbitrary and capricious. He asserts that he did not fail to report for

work, but that he merely refused to follow the order to use his personal vehicle to

transport himself between the stations. He further contends that even if he did fail

to report, th e punishment of removal was too severe, and he really was removed

because of his disability and in retaliation for his complaints.

Aldrup asserts mixed claims, based both on discrimi nation and other grounds.

Although this court does not generally have jurisdiction to review decisions of the

Merit Systems Protection Board, we have jurisdiction over t h is type of “mixed1 Wiggins v. U.S. Postal Serv. , 653 F.2d 219, 221 (5th Cir. 1981).

2 M orris v. Covan World Wide Moving, Inc.

, 144 F.3d 377, 380 (5th Cir.

1998).

3 F ED

. R. C IV

. P. 56(c); Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).

4 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).

5 Id.

6 Id.

7 Celotex Corp. , 477 U.S. at 322-23.

4 case.” 1

ANALYSIS

We review the district court's grant of summary judgment de novo. 2 Summary

judgment is proper when there is no genuine issue as to any material fact. 3 A factual

issue is material if its resolution could affect the outcome of the action. 4 In determining

whether there is a genuine issue as to any material fact, all justifiable inferences will

b e made in the nonmoving party’s favor, and we will “not weigh the evidence or

evaluate the credibility of witnesses

. . ..” 5 A “dispute about a material fact is 'genuine'.

. . if the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” 6 Therefore, summary judgment is appropriate if the nonmovant fails to establish

facts supporting an essential element of his prima facie claim. 7

In a “mixed case” appeal from the Merit Systems Protection Board, we8 5 U.S.C. § 7703(c).

9 411 U.S. 792 (1973).

10 St. Mary’s Honor Ctr. v. Hicks , 509 U.S. 50, 506 (1993).

11 Long v. Eastfield Coll. , 88 F.3d 300, 304 (5th Cir. 1996).

12 Tex. Dept. of Cmty. Affairs v. Burdine , 450 U.S. 248, 254 (1981).

13 McDonnell Douglas Corp. v. Green

, 411 U.S. at 804.

5 review de novo discrimination claims raised adm inistratively. 8 W e apply the

McDonnell Douglas Corp. v. Green

, 9 burden-shifting framework in Title VII

actions. 10 In order to establish a prima facie case of retaliation, the plaintiff must

prove that: (1) he engaged in activity protected by Title VII; (2) an adverse

employment action occurred; and (3) there was a caus al connection between the

protected activity and the adverse employment action. 11 Assuming the plaintiff is

able to establish his prima facie case, the burden then shifts to the defendant to

demonstrate a legitimate nondiscriminatory purpose for the employment action. 12

If the defendant makes the required showing, the burden returns to the plaintiff to

demonstrate that the employer’s articulated reason for the employment action was

a pretext for the real, discriminatory reason. 13

In granting summa ry judgment on his Title VII claims the district court found

that although Ald rup had produced prima facie evidence of retaliation, the14 C haney v. New Orleans Pub. Facility Mgmt.

, 179 F.3d 164, 167 (5th Cir.

1999).

15 42 U.S.C. § 12112 (1995).

16 M cInnis v. Alamo Cmty. Coll. Dist.

, 207 F.3d 276, 279-80 (5th Cir. 2000).

6 defendant had presented evidenc e of a legitimate nondiscriminatory purpose for

removing him–his repeated insubordination–and that he had failed to offer

evidence to create a fact issue that the defendant’s proffered reason was pretextual.

The failure of a subord inate to follow a direct order of a supervisor is a

legitimate nondiscriminatory reason for taking adverse employment action. 1 4

Aldrup’s insubordination on three separate occasions was a sufficient

nondiscriminatory reason for his removal.

As to the disability claim, the ADA prohibits discrimin ation by private

employers against any qualified individual with a disability. 1 5 To establish

discrimination based on disability, he had to demonstrate that: (1) he was disabled;

(2) he was none-the-less qualified to do the job; (3) an adverse employment action

was taken against him; and (4) that he was replaced by or treated less favorably

than non-disabled employees. 16 An individual is disabled under the ADA if he

demonstrates: (1) he has a physical or mental impairment that substantially limits17 42 U.S.C. § 12102(2).

18 29 C.F.R. § 1630.2(I) (1998). The EEOC guidelines, “while not

controllin g upon the courts by reason of their authority, do constitute a body of

experience and informed judgment to which courts and litigants may pro p erly

resort for guidance.” Meritor Sav. Bank v. Vinson , 477 U.S. 57, 65 (1986).

19 29 C.F.R. § 1630(j)(3)(I).

7 one or more of his major life activities; (2) he has a record of such impairment; or

(3) he is regarded as having such an impairment. 17

Major life activities include caring for on e self, performing manual tasks,

walking, seeing, he a ring, speaking, breathing, learning, and working. 18 An

impairment is substantially limiting only if it “significantly restricts [the

individual’s]

. . . ability to perform either a class of jobs or a broad range of jobs in

various classes as compared to the average person having comparable training,

skills, and abilities.” 19

In granting defendant’s motion for summary judgment, th e district court

determined that Aldrup had failed to offer eviden ce that he was substantially

limited in the life activity of working and that he had failed to create a fact issue

that the defendant’s proffered reason for his removal was pretextual.

Aldrup alleges th at he suffers from the disability of depression caused by

“the stress and anxiety of having to work with certain employees at the [Houston20 S ee, e.g.

, Prytania Park Hotel, Ltd. v. Gen. Star Indem. Co.

, 179 F.3d 169,

180 (5th Cir. 1999).

21 Sutton v. United Airlines, Inc. , 527 U.S. 471, 489 (1999).

8 Station].” This claim, if supported by the record, would merely tend to show that

he was unable to perform any job at one specific location, and is not evidence of

Aldrup’s general inability to perform a broad class of jobs. The central evidence

offered by Aldru p in support of his disability claim is a letter from a physician

concluding that he “has a medical condition that substantially limits one or more

of his major life activities

. . ..” The district court properly determined that such

unsupported conclusi onal statements are not entitled to evidentiary weight. 2 0

Additionally, Aldrup offe r s that he was on medical leave from his employment

from March 28, 1997 through May 1, 1997. This evidence is not sufficient to

create a jury question as to whether he was disabled.

Aldrup also asserts that he was “regarded as” disabled by defendant. An

individual is “regarded as” disabled when a covered entity mistakenly bel ieves that:

(1) a person has a physical impairment that substantially limits one or more major

life activities; or (2) an actual, non-limiting impairment substantially limits one or

more major life activities. 21 In both situations, the covered entity must entertain

s ome misperception regarding the individual–either that he has a substant ially22 Id.

23 M ayberry v. Vought Aircraft Co. , 55 F.3d 1086, 1090 (5th Cir. 1995)

(requiring the plaintiff to establish that other employees were in “nearly identical

circumstances” to support disparate treatment claim).

24 5 U.S.C. § 7703(c).

9 limiting impairment that he does not have or the impairment is not so limiting as

believed. 22 Aldrup has presented no evidence whatsoever to base the slightest

inference that defendant believed he was disabled.

In addition, Aldrup claims th at the punishment of removal for his

insubor dination was excessive in light of the disciplinary actions taken by

defendant in dealing with other individuals. Aldrup cites a number of examples of

purported bad conduct by other employees for which they were ei ther not

disciplined or not removed from federal employment. None of the examples listed

are similar to Aldrup’s acts of insubordination. 23

Finally, we review non-di scrimination claims based on the administrative

record, and will uphold the Merit Systems Protection Board’s determ inations unless

they are clearly arbitrary and capricious, unsupported by substanti al evidence or

otherwise not in accordance with law. 24

In attacking the Merit Systems Prot e ction Board’s determination, Aldrup

raises a numb er of issues. The majority of these claims were waived under the25 The parties’ stipulation of January 4, 2001, limited the claims to include

only the allegations that: (1) Aldrup’s removal was retaliatory under Title VII of

the Civil Rights Act o f 1964; (2) the removal was motivated by disability

discrimination; and (3) the decision of the Merit Syste ms Protection Board

affirming Aldrup’s removal was arbitrary, capricious, not supported by substantial

evidence or otherwise not in accordance with the law.

26 Stewart Glass & Mirror, Inc. v. U.S. Auto Glass Disc. Centers, Inc. , 200

F.3d 307, 316-17 (5th Cir. 2000) (“It is a bedrock principle of appellate review that

c laims raised for the first time on appeal will not be considered. This rule is

equally applicable to summary judgment cases.”).

10 parties’ stipulation 25 or are raised for the first time on appeal. 26 Therefore, we limit

our review to the determination, whether the decision of the Merit Systems

Protection Board affirming the removal of Aldrup was arbitrary and capricious, not

supported by substantial evidence, or otherwise not in accordance with the law.

In granting summary judgment, the district court fou nd that “Aldrup’s refusal

to report to work at Fort Sam Houston, even when described as merely a refusal to

use his [personal vehicle], was a serious infraction.” The court reasoned that given

the wide discretion grant ed to administrative agencies in disciplining their

employees, removal after three instances of insubordination was not arbitrary and

capricious. Under the facts at bar, we agree.

Aldrup ass erts that his supervisor’s order that he use his personal vehicle

violated the federal Joint Travel Regulations and that he believed the order to be

illegal. He also contends that he was entitled to disobey his supervisor’s order27 B igelow v. Dep’t of Health & Human Servs.

, 750 F.2d 962, 965 (Fed. Cir.

1984) (holding that “[g]overnment employees

. . . may not refuse to do work

merely because of disagreements with management

. . . [and failure] to perform

their duties . . . [is done] at the risk of being insubordinate.”).

28 Cragg v. U.S. Air Force , 13 M.S.P.R. 296, 299 (1982).

29 Stanek v. Dep’t of Transp. , 805 F.2d 1572, 1580 (Fed. Cir. 1986).

11 because it placed him in personal jeopardy. Generally, a subordinate must obey an

ord er first and complain later. 2 7 There is an exception when obeying the order

would place the subordinate in a clearly dangerous situation. 28 Aldrup notes that

his automotive insurer would not cover his vehicle whil e driven for government

purposes. Such real or imagined concerns over insurance coverage do not rise to

the sort of personal jeopardy that would justify disobeying a direct order from a

supervisor.

Aldrup raises a number of additional complaints regarding the administrative

determinations, including that the penalty of removal was too severe under the

totality of the circumstances, and that the administrative panel should have allowed

him to mount a renewed challenge to his two previous suspensions. Agencies are

given wide discretion in disciplining their employees 29 and, based on the record, it

cannot be said that the decision to remove Aldrup was arbitrary and capricious.

Regardless, Aldrup’s claim that the administrative panel should have allowed him30 V aughner v. Pulito , 804 F.2d 873, 877 n.2 (5th Cir. 1986) ( noting that

failure to assert a legal reason why summary judgment should not be granted is waived

if later raised on appeal).

12 a renewed attack on his previous suspensions was waived because it was not raised

in his response to defendant’s motion for summary judgment. 30

For these reasons, the judgment appealed is AFFIRMED.