* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

___________________________

No. 98-20165

Summary Calendar

___________________________

LOUIS A. CARRIER,

Plaintiff-Appellant,

VERSUS

DR. ROD PAIGE, PAUL OFIELD, AND

THE HOUSTON INDEPENDENT SCHOOL DISTRICT,

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-96-CV-1748)

 ___________________________________________________

September 24, 1998

Before DAVIS, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

Louis A. Carrier appeals the district court’s grant of summary

judgment on his claims of discrimination under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12111 et seq., and

retaliation under the Texas Commission on Human Rights Act

(“TCHRA”), TEX. LAB. CODE ANN. §§ 21.001 et seq. The district court

held that Carrier failed to set forth evidence of a “disability”

under the ADA, or of a causal connection between participation in

a protected activity and an adverse employment decision under the
2

TCHRA. For the reasons set forth below, we AFFIRM.

I.

Plaintiff Carrier has been an employee of Defendant The

Houston Independent School District (“HISD”) since 1963. In 1976,

he became principal of the Houston Night High School (“HNHS”). As

principal of HNHS, Carrier reported to Defendant Paul Ofield, who

has been Deputy Superintendent of Alternative Schools for HISD

since 1991. One of Ofield’s duties is evaluating the administrators

of HNHS.

In February 1993, Ofield conducted a year-end assessment of

Carrier that covered the period from September 1992 through

February 1993. Following an assessment conference, Ofield completed

an evaluation form documenting Carrier’s job performance during the

period in question. Carrier received performance ratings of either

“meets expectations” or “below expectations” in each category

listed on the evaluation form.

Additionally, in the section of the evaluation form entitled

“Career Potential-Narrative,” Ofield wrote, “Because of health and

school related problems, it might be in Mr. Carrier’s best interest

to consider retirement at the end of the 1993-94 school year.” At

the time of the evaluation, Carrier was suffering from sleep apnea,

a sleeping disorder characterized by interrupted breathing. It is

unclear whether Ofield knew of this disorder prior to the

assessment conference. Following this evaluation, Carrier received

a one-year renewal contract as principal of HNHS.

Carrier filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) in October 1993,
3

alleging that HISD had discriminated against him on the basis of a

false perception of disability by granting him only a one-year

renewal contract rather than a three-year renewal contract.

In June 1995, Carrier was reassigned as Assistant Principal of

the Contemporary Learning Center for the 1995-96 school year.

Carrier filed a second charge of discrimination with the EEOC,

alleging that HISD was retaliating against him for bringing the

1993 charge.

In May 1996, Carrier brought the present action, alleging

discrimination under the ADA and retaliation under the TCHRA.

Defendants brought a motion for summary judgment, which the

district court granted. Carrier timely appealed.

II.

This Court reviews a grant of summary judgment de novo, as if

it were the district court itself. See Turco v. Hoechst Celanese

Corp., 101 F.3d 1090, 1092 (5th Cir. 1996). Summary judgment is

therefore appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter

of law.” FED. R. CIV. P. 56(c). Once a proper motion for summary

judgment has been made, the non-moving party may not rest upon mere

allegations or denials in the pleadings, but must set forth

specific facts showing the existence of a genuine issue for trial.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

III.

In order to establish a prima facie case of disability
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discrimination under the ADA, a plaintiff must show that he 1) had

a “disability” within the meaning of the ADA, 2) was qualified,

with or without accommodation, for the position in question, 3) was

subject to an adverse employment action, and 4) was replaced by a

non-disabled person or was treated less favorably than non-disabled

persons. See Burch v. Coca-Cola Co., 119 F.3d 305, 320 (5th Cir.

1997), cert. denied, ___ U.S. ___, 118 S. Ct. 871 (1998).

The ADA defines “disability” as follows:

The term ‘disability’ means, with respect to an individual--

(A) a physical or mental impairment that substantially

limits one or more of the major life activities of such

individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).

The district court held that Carrier provided “no evidence

that he had an impairment that substantially limited a major life

activity or that Defendants regarded him as having such an

impairment.” Order at 4. Carrier argues on appeal that he alleged

a “reverse disability claim” and that the district court thus erred

in requiring evidence of a disability. We disagree.

Carrier offers no authority for the proposition that the ADA

creates a cause of action for “reverse disability discrimination,”

nor is there any language in the ADA providing for such a cause of

action. It is clear from the Appellant’s Brief that what Carrier is

actually asserting is a disability discrimination claim under a
 

2“The District Court correctly stated that Plaintiff’s ADA

claim is based on Defendants’ effort to remove him ‘because of

perceived health problems.’ Plaintiff alleged that he was not

suffering from health problems and that is why he filed the

original discrimination charge.” Appellant’s Brief at 10.

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perceived disability theory, pursuant to 42 U.S.C. § 12102(2)(C).2

As such, Carrier is obliged to set forth specific facts showing

that Defendants perceived an impairment and treated the perceived

impairment as substantially limiting one or more of Carrier’s major

life activities. See E.E.O.C. v. Texas Bus Lines, 923 F. Supp. 965,

975 (S.D. Tex. 1996).

We agree with the district court that Carrier has failed to

meet his burden. The only evidence he has offered to show that

Defendants regarded him as impaired is the evaluation form

containing the note about Carrier’s health problems, and the

evidence that he dozed periodically in staff meetings. Construing

this evidence in the light most favorable to Carrier, it may be

sufficient to show that Defendants perceived some impairment, but

remains insufficient to show that Defendants treated the perceived

impairment as substantially limiting one or more of Carrier’s major

life activities. Indeed, the fact that Defendants continued to

employ Carrier as a principal and as an assistant principal for

years after his health problems were noted by Ofield directly

contradicts that conclusion.

In addition, Defendants have articulated a legitimate,

nondiscriminatory reason for their decision to extend Carrier a

one-year contract rather than a three-year contract: that the

decision was based on then-Superintendent Frank Petruzielo’s

recommendation to extend only one-year renewal contracts to
6

administrators such as Carrier whose ratings were “meets

expectations” or “below expectations” on their year-end

evaluations.

Where a legitimate, nondiscriminatory reason for an employment

decision is articulated, the burden shifts to the person alleging

discrimination to show that the articulated reason was pretextual.

See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253

(1981). Carrier has failed to set forth any evidence, other than

his subjective opinion, tending to show that HISD’s following of

Petruzielo’s recommendation in this case was a pretext for

disability discrimination. Subjective speculation is insufficient

once a legitimate, nondiscriminatory reason for the employment

decision has been articulated. See Nichols v. Loral Vought Sys.

Corp., 81 F.3d 38, 42 (5th Cir. 1996).

IV.

The burdens of proof applicable under the TCHRA are determined

by reference to federal case law interpreting Title VII. See

Schroader v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.

1991). In order to establish a prima facie case of retaliation

under the TCHRA, therefore, a plaintiff must show 1) that he

engaged in a protected activity, 2) that an adverse employment

action followed, and 3) that there was a causal connection between

the activity and the adverse action. See Southard v. Texas Bd. of

Criminal Justice, 114 F.3d 539, 554 (5th Cir. 1997).

The district court held that Carrier failed to set forth facts

showing a causal link between his participation in a protected

activity (filing an EEOC claim) and the adverse employment decision
7

against him (demotion to assistant principal). On appeal, Carrier

points to three pieces of evidence: 1) a memorandum by Carrier

relating a conversation he had with a third party who told him of

a conversation with a fourth party in which it was revealed that

Ofield was “out to get” Carrier; 2) Ofield’s deposition testimony

that he took Carrier’s employment discrimination charge personally;

and 3) Carrier’s demotion and reassignment to another school

following his filing of the 1993 discrimination charge. We agree

with the district court that this evidence is insufficient to show

a causal connection between the protected activity and the adverse

employment decision.

The memorandum that Ofield was “out to get” Carrier is

unauthenticated and multiple hearsay not falling within any

exception, and as such is unreliable and inadmissible under FED.

R. EVID. 801, 802, and 901. It cannot be considered on summary

judgment.

The deposition evidence that Ofield “took it personally” when

a discrimination charge was filed against him and the evidence that

Carrier was demoted almost two years after he filed the

discrimination charge also does not suffice to show any connection

between the protected activity and the adverse employment decision.

See generally Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1092

(5th Cir. 1995) (holding that a disciplinary suspension following

several years of protected activity was not inherently suspicious).

For the reasons set forth above, we conclude that the district

court correctly granted the Defendants’ motion for summary

judgment, and we AFFIRM the judgment of the district court.