* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-20757

Summary Calendar

_______________

JO ANN MOODY,

Plaintiff-Appellant,

VERSUS

THE M.W. KELLOGG COMPANY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-95-CV-3848)

_________________________

March 8, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Jo Ann Moody appeals a summary judgment in favor of

M.W. Kellogg Company (“Kellogg” or “the company”) on her claims

under the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12101 et seq., and the Texas Workers' Compensation Act (“TWCA”),

TEX. LABOR CODE § 451.001 et seq. Finding no genuine issue of

material fact, we affirm.
2

I.

Moody worked for Kellogg from 1976 to 1991, receiving several

promotions and ultimately attaining the position of lead document

coordinator (a “Clerk VII” position in Kellogg's employment

scheme), responsible for supervising four employees. Kellogg

requires its employees to maintain weekly time sheets, which must

be verified and approved by supervisors. When the document

supervisor was unavailable, Moody was responsible for approving the

time sheets of her supervisees. 

Moody injured her back at work on three separate occasions.

Two of the injuries required surgery, and after each injury, she

sought and received workers' compensation. Following the third

injury, her doctor suggested that she receive a specially designed

chair and a parking spot close to the building. Kellogg supplied

a special chair, but she never got to use it because, as detailed

below, she was fired upon her return to work. Kellogg denied the

request for a closer parking spot, claiming that Moody's doctor had

said only that a closer spot was recommended, not required. 

During Moody's third medical leave, Carol Jones, an employee

Moody supervised, confessed to falsifying time sheets at Moody's

request. Kellogg conducted an investigation of Jones's allegation.

The investigation was led by Doris Frisby, who is the supervisor of

the employee to whom Jones confessed, and Teresa Vannoy, manager of

employee relations, who determined that (1) Jones is a credible

person, (2) the altered time sheets corroborated Jones's

allegations that Moody had marked and revised the number of hours
3

worked, and (3) the parking garage records corroborated Jones's

allegations that Moody had left Kellogg's premises during the work

day. In addition, Vanessa Reed, another employee in Moody's work

group, stated that Moody had told Reed to add hours to her time

sheet that Reed had not actually worked. 

On the basis of Jones's and Reed's statements and the

corroborating evidence, Frisby made the decision to terminate

Moody's employment. She was fired on September 6, 1994, her first

day back to full-time work after her third back injury. The reason

for her discharge, Kellogg claims, is that she abused her

supervisory positionSSin particular, she directed subordinate

employees to submit inaccurate time sheets in violation of

Kellogg's policies and procedures. Moody claims that this

proffered reason for her termination is a pretext. 

II.

Moody sued, asserting that Kellogg had violated her rights

under the ADA by denying her reasonable accommodation (a special

chair and close parking space) and terminating her because of her

disability. She claims the company violated the TWCA by firing her

in retaliation for her filing of workers' compensation claims.

The court granted summary judgment for Kellogg. Moody

appealed, arguing that she had not been allowed to engage in

sufficient discovery to contest summary judgment. We reversed and

remanded for further proceedings. After the parties had engaged in

extensive discovery, the district court granted Kellogg's second
4

motion for summary judgment.

III.

We review a summary judgment de novo, applying the same

standard as did the district court. Melton v. Teachers Ins. &

Annuity Ass'n of Am., 114 F.3d 557, 559 (5th Cir. 1997). Summary

judgment is proper when the pleadings and summary judgment evidence

present no genuine issue of material fact and indicate that the

moving party is entitled to judgment as a matter of law. FED. R.

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

Disputed facts preclude granting summary judgment if the evidence

is such that a reasonable jury could return a verdict for the

nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). We may neither weigh the evidence nor make credibility

determinations. Anderson, 477 U.S. at 248. 

IV.

The ADA prohibits an employer from “discriminating against a

qualified individual with a disability because of the disability.”

42 U.S.C. § 12112(a). To state a claim under the ADA, Moody must

prove that (1) she suffers from a “disability” as defined by the

ADA; (2) she is a “qualified individual” under the ADA; and

(3) Kellogg took an adverse employment action solely because of her

disability. Rizzo v. Children's World Learning Ctrs., 84 F.3d 758,

763 (5th Cir. 1996); see also Chandler v. City of Dallas, 2 F.3d

1385, 1390 (5th Cir. 1993). Moody bears the burden of proving each
 

2 Moody also references a memo from her doctor (Doctor McKeever) detailing how

the injuries Moody sustained in her last fall would affect her work abilities. The

memo states:

This patient will certainly need to limit any prolonged standing,

stooping, bending or lifting. She should not really lift anything

weighing over about 10 lbs. It would be recommended she obtain a

parking space close to her job site. It would be recommended that when

she does have to sit down to operate her computer keyboard etc[.] that

she have a special straight back chair with adequate lumbar support.

It would be recommended she have breaks to prevent prolonged standing

(continued...)

5

of these elements. Id. Because she has produced no evidence to

create a genuine issue of material fact as to the first and third

elements, summary judgment was proper on the ADA claim.

A.

Moody has failed to produce evidence that would permit a

rational juror to conclude that she suffers from a disability as

defined by the ADA. A person has a disability under the ADA if he

(1) suffers “from a physical impairment that substantially limits

one or more of [his] major life activities,” (2) has “a record of

such impairment,” or (3) is “regarded as having such an

impairment.” 42 U.S.C. § 12102(2)(A)-(C).

1.

The evidence Moody has produced to show that she suffers from

a physical impairment that substantially limits a major life

activity is unpersuasive, for, while it shows that she has a bad

back, it does not show that she is substantially limited in any

major life activity. The primary evidence she points to is her

deposition testimony.2 She testified that her back injury caused
(...continued)

or sitting in one position. Again, she should limit her bending or

lifting of anything over 10 lbs. I understand she has to deliver

documents and drawings etc. Sometimes these weigh quite a bit. A

rolling cart for such deliveries would be recommended. If these

precautions are taken and provided, I feel Mrs. Moody could perform her

job and I know she wants very much to continue to do so.

By its terms, this memo is describing the results of a particular

injurySSMoody's third fall. It does not purport to describe a long-term disability.

The regulations under the ADA distinguish injuries (“temporary, non-chronic

impairments of short duration”) and state that they “are usually not disabilities.”

29 C.F.R. § 1630 app. at § 1630.2(j). Read as a whole, the memo from McKeever

plainly addresses injuries sustained in Moody's third fall and the restrictions she

needed to observe as a result of those particular short-term injuries. When read

in conjunction with McKeever's deposition testimony, discussed in the text below,

the memo cannot establish that Moody was substantially limited in a major life

activity. 

6

the following restrictions: She does not play as many sports as

she once did; she has difficulty putting on pantyhose or fastening

a dress in the back; she has numbness in her leg and pain in her

lower back if she stands “too long”; she has lower back pain if she

walks “too far” or if she has to climb stairs; she uses her own

judgment to decide what she is capable of lifting; and she has

difficulty getting up and down while singing in her church choir.

These restrictions on her physical abilities are not sufficient to

constitute a substantial limitation of a major life activity.

The ADA does not define “substantially limits” or “major life

activities,” but we have looked to regulations promulgated under

the act by the Equal Employment Opportunity Commission in defining

both terms. The regulations define major life activities as

“functions such as caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

working.” 29 C.F.R. § 1630.2(i). “Other major life activities

could include lifting, reaching, sitting, or standing.” Dutcher v.

Ingalls Shipbuilding, 53 F.3d 723, 726 n.7 (5th Cir. 1995). Moody
 

3 See also Dutcher, 53 F.3d at 726 (holding that ADA plaintiff was not

substantially limited when she could perform tasks of everyday living and “c[ould]

do lifting and reaching as long as she avoid[ed] heavy lifting and repetitive

rotational movements”).

 

4 This conclusion is bolstered by the deposition testimony of Dr. McKeever,

Moody's expert witness and treating physician, who admitted that Moody could bend

to dress herself and could lift more than ten pounds and could walk a considerable

distance. He even admitted that he had suggested that Moody “increase her

(continued...)

7

grasps onto these statements, arguing that because she has trouble

putting on certain clothes (“caring for oneself”) and must avoid

walking too far, standing too long, and lifting objects that are

too heavy, she must be substantially limited in a major life

activity.

The limitations must be more significant than those Moody

claims to experience. In Ray v. Glidden, 85 F.3d 227, 229 (5th

Cir. 1996), we held that an ADA plaintiff was not substantially

limited in a major life activity when he could not life heavy

objects and his doctor had recommended that he be limited to

lifting objects weighing from five to ten pounds. We stated that

“[t]o determine whether a person is substantially limited in a

major life activity other than working, we look to whether that

person can perform the normal activities of daily living.” Id.

(citing Dutcher, 53 F.3d at 726). The plaintiff was not

substantially limited, we held, because he “c[ould] lift and reach

as long as he avoid[ed] heavy lifting.” Id.3 

Similarly, Moody can care for herself and can sit, stand,

walk, and lift, as long as she avoids extremes. The summary

judgment evidence therefore does not support a finding that Moody

is substantially limited in a major life activity.4
(...continued)

activities, including walking, riding, exercising on a bicycle, and doing partial

sit-ups.” He agreed that she could stand for a period of time longer than 30 to 45

minutes and could stand for three or four days “if she had to.” 

In addition, McKeever testified that from 1987 to December 1995, Moody

consistently rated a “seven or eight” on a scale on which 1 represents the most

disabled patient with a back injury and 10 represents the healthiest back patient.

Noting that Moody's condition has stabilized, he stated, “She's been able to go back

to work. She's been able to live her life, you know, and do things in a reasonable

manner.” This testimony confirms that Moody “can perform the normal activities of

daily living,” which precludes a finding that she is substantially limited in a

major life activity. See Ray, 85 F.3d at 229.

 

5 The evidence Moody points to as constituting a record of disability

includes:

(continued...)

8

2.

Moody also cannot point to a record of disability to establish

that she was “disabled” under the ADA. To have a record of a

substantially limiting impairment, one must “ha[ve] a history of,

or ha[ve] been misclassified as having, a mental or physical

impairment that substantially limits one or more major life

activities.” 29 C.F.R. § 1630.2(k). While Moody has produced

evidence of past injuries, she has produced no evidence of a

history of disability. Evidence of past discrete injuries is

insufficient, for “[t]he impairment indicated in the record must be

an impairment that would substantially limit one or more of the

individual's major life activities.” 29 C.F.R. § 1630 app. at

§ 1630.2(k). As noted above, there is a difference between a

particular, temporary injury (such as a back injury resulting from

a fall) and a substantially limiting impairment. See 29 C.F.R.

§ 1630 app. at § 1630.2(j). The records to which Moody points

constitute a record of mere injuries, not of disability.5
(...continued)

(1) A “First Report of Injury or Illness” form, filed with the

Texas Industrial Accident Board in 1988, which states that Moody

fell at work and felt “discomfort in her back.”

(2) A 1985 letter from her doctor describing her treatment

following her first workplace fall. (The letter also states, “The

extent of her injuries is not considered severe. Prognosis for full

recovery is excellent.”)

(3) Kellogg's employee data sheet stating that Moody was terminated

in 1985 “due to long term illness (disability).”

(4) A letter from Moody's lawyer, James Potts, indicating that she

had been released to work with certain limitations, and inquiring as

to her work status.

(5) A 1986 Kellogg “separation report” form that included the

notation “long term disability” in the space for comments.

None of these documents indicates that Moody ever had an impairment that

substantially limited a major life activity, and the documents thus cannot

establish a “record of disability” as that term is defined by the ADA. See

C.F.R. § 1630.2(k) (“Has a record of such impairment means has a history of, or

has been misclassified as having, a mental or physical impairment that

substantially limits one or more major life activities.”).

 

6 See Evans v. Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (holding that knee

injury, which required surgery, was not a disability); 29 C.F.R. § 1630 app. at

§ 1630.2(j) (noting that appendicitis, which generally requires hospitalization, is

a temporary injury and not a disability).

9

Moody's contention that she can establish a record of

impairment because she was hospitalized for back surgery in 1986

and 1987 is also unavailing. Citing School Board v. Arline,

480 U.S. 273, 281 (1987), Moody claims that “[an] employee may

establish that she has a record of an impairment if the impairment

was serious enough to require hospitalization.” But she is reading

Arline too broadly. The Arline Court held that a school teacher

who had recurrent, acute tuberculosis that required hospitalization

had a record of disability under the Rehabilitation Act. Id. The

Court did not establish a per se rule that hospitalization for any

condition constitutes a record of disability.6 Indeed, there are

many injuries that require hospitalization but that would not give
 

7 Kellogg claims that these documents were related to Moody's application in

1986 for long-term disability benefits under the company's disability-benefits plan.

The use of the term “disability,” Kellogg maintains, indicates that Moody, for a

period of time in 1986, may have qualified for benefits under Kellogg's long-term

disability plan. 

Kellogg's assertion is persuasive. The handwritten memo referring to

(continued...)

10

rise to a record of substantial impairment sufficient to convey ADA

protection. 

3.

Finally, Moody has not produced evidence that would permit a

finding that Kellogg regarded her as disabled at the time it took

the “adverse employment actions.” One is regarded as having a

disability only if he (1) has an impairment that is not

substantially limiting but that the employer perceives as

substantially limiting; (2) has an impairment that is substantially

limiting only because of the attitudes of others toward the

impairment; or (3) has no impairment at all but is regarded by the

employer as having a substantially limiting impairment. Burch v.

Coca-Cola Co., 119 F.3d 305, 322 (5th Cir. 1997), cert. denied, 118

S. Ct. 871 (1998). Moody does not claim to fall into the second

category, so she must show that Kellogg perceived that she was

impaired in a way that is substantially limiting. 

The evidence Moody points to as establishing that Kellogg

perceived her as disabled is insufficient. Her most persuasive

evidence is probative only of Kellogg's perceptions in 1986. She

points to documents from her 1986 termination that appear to

indicate that the reason for her termination was disability.7
(...continued)

“termination due to long term sickness (disability)” explains, “FYI the insurance

carrier is evaluating Moody's application for disability.” We need not resolve what

the references to disability meant, however, for Kellogg's belief about Moody in

1986 is not relevant to whether it perceived her as disabled in 1994.

 

8 In addition, it is worth noting that the ADA, enacted in 1986,

transformed the legal meaning of “disability.” The fact that Kellogg in 1986

referred to Moody's injury as a disability does not indicate that it believed,

even then, that she was subject to an impairment that substantially limited a

major life activity.

 

9 Vannoy stated:

[Frisby and I] had a conversation about some other issues that might

come up [regarding] the recommendation to terminate Jo Ann [Moody]

. . . . And one of them was the disability issue, and we discussed

whether or not Jo Ann fit under the definition of the law. And we

decided that she didn't . . . . [T]he reason why we were talking

about that was . . . because Jo Ann had been out for a few days and

(continued...)

11

These documents do not establish that Kellogg perceived Moody as

disabled in 1994, when it took the adverse employment actions

complained of.8 

The remaining evidence to which Moody points cannot sustain a

finding that Kellogg perceived Moody as disabled in 1994. Moody

points to Frisby's notes that include the phrase “consider her

disabled.” This document is simply a piece of paper with three

handwritten phrases: “fabrication on her partSSfalsifying time

sheets,” “consider her disabled,” and “who's in group.” Frisby

jotted down the notes before the conversation in which she fired

Moody, and Frisby maintains that the phrase “consider her disabled”

was a reminder that Moody might take the position that she (Moody)

was disabled. This testimony is corroborated by human resources

employee Teresa Vannoy, who testified that she and Frisby discussed

various theories that might come up in connection with Moody's

termination, including the “disability issue.”9 Frisby also stated
(...continued)

was coming back, and we anticipated that she might raise that as an

issue. We knew that it wasn't part of the decision we were making

andSSbut, you know, we wanted to beSSI wanted [Frisby] to be aware

of the risk involved and that Jo Ann could raise the issue . . . .

12

in her deposition and affidavit that she neither perceived Moody as

“disabled” nor took her back condition into account in making the

termination decision. Given the totality of the evidence in the

summary judgment record, the solitary statement in Frisby's notes

fails to raise a genuine issue of material fact as to whether

Kellogg perceived Moody as substantially limited in a major life

activity.

Moody points to the deposition testimony of Carol Jones, an

employee who worked under her, as establishing that other employees

thought she had some type of disability, but that evidence is

insufficient for two reasons. First, the workplace comments of coworkers, who were not decision makers at the company, are nothing

more than stray remarks and cannot establish how Kellogg perceived

Jones. See Stendebach v. C.P.C. Int'l Inc., 691 F.2d 735, 738 (5th

Cir. 1982). In addition, a full reading of Jones's deposition

indicates that Jones was using the term “disability,” a term of

art, to refer to any physical limitation, not simply to an

“impairment that substantially limits a major life activity.”

Admitting that she never talked directly to any of Moody's

supervisors about Moody's disability, Jones testified only that a

supervisor had said “something like” Jo Ann was disabled and would

need help lifting boxes. 

At most, the testimony establishes that some employees
 

10 See Rogers v. International Marine Terminals, 87 F.3d 755, 759 (5th Cir.

1996); Evans, 861 F.2d at 852-53; 29 C.F.R. § 1630 app. at § 1630.2(j).

 

11 Moody's brief also refers to the failure to accommodate her “disability”

(continued...)

13

believed Moody had limitations on her ability to do heavy lifting.

Because a limitation on heavy lifting is not a substantial

limitation of a major life activity under the ADA, a perception

that an employee has a heavy lifting limitation cannot amount to a

perception that the employee is disabled. See Sherrod v. American

Airlines, Inc., 132 F.3d 1112, 1119-20 (5th Cir. 1998); Ray,

85 F.3d at 229 (5th Cir. 1996).

Finally, Moody points to evidence indicating that Frisby and

Vannoy were aware that Frisby had experienced injuries and had

filed workers' compensation claims. This evidence can show only

that Kellogg perceived Moody as having been injuredSSnot as having

a disability as defined by the ADA. An injurySSeven one requiring

surgerySSdoes not necessarily constitute a disability.10

B.

Moody's ADA claim fails also because she has produced no

evidence to sustain a finding that Kellogg took an adverse

employment action solely because of her disability. See Rizzo,

84 F.3d at 763 (5th Cir. 1996) (listing elements of ADA claim); see

also Chandler, 2 F.3d at 1390. Moody points to two

discriminatorily-motivated adverse employment actions: Kellogg's

failure to give her a parking space close to the building and the

decision to fire her.11 Neither action, however, constituted
(...continued)

by providing her with a special chair. When questioned about her accommodation

claims at her deposition, however, Moody admitted that Kellogg did provide her a

special chair in 1986 and again in 1994 but that she did not have an opportunity to

use the chair in 1994 because of her termination.

 

12 Moody's position is that her doctor's recommendation of a closer parking

spot constituted a request for an accommodation. As the district court found,

however, Moody's doctor merely “recommended” a closer parking space; he did not

indicate that one was required. Kellogg's records indicate that the company

informed Moody that her doctor would need to indicate that a closer space was

required before it would allow her to park in one of the close spaces. There is

no evidence suggesting that she tried to obtain such a “prescription” from her

doctor.

14

adverse employment action based solely on Moody's “disability.”

1.

Kellogg's failure to provide Moody with a parking space close

to the building was not a failure reasonably to accommodate her

“disability,” because the evidence cannot establish that she

requested a close parking space. She testified at her deposition

that she did not recall talking to anyone at Kellogg about a

request for a parking accommodation and that she never applied for

a decal that would permit her to park in one of the disabled

parking spaces. As the ADA regulations state, “it is the

responsibility of the individual with a disability to inform the

employer that an accommodation is needed.” 29 C.F.R. app.

§ 1630.9. Moody's failure to make a specific request precludes her

from arguing that Kellogg did not accommodate her “disability.”12

2.

The summary judgment evidence also supports a finding that

Kellogg terminated Moody not because of her “disability” but
 

13 In a disability discrimination case in which, as here, there is no direct

proof of discrimination, the plaintiff must present prima facie evidence of

discrimination on the basis of disability, after which the employer has the burden

to articulate some legitimate, nondiscriminatory reason for the termination, and the

burden then shifts to the plaintiff to prove by a preponderance of the evidence that

the employer's proffered reason was a pretext for discrimination. See Sherrod, 132

F.3d at 1121 (approving the title VII burden-shifting scheme for ADA claims);

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973) (establishing burdens

of proof for title VII claims). Kellogg articulated a nondiscriminatory reason for

Moody's termination (i.e., that Moody was directing her subordinates to falsify time

sheets), and Moody thus has the burden of proving that this proffered reason is

pretextual. As we will discuss, she has not sustained that burden.

15

because it believed she was directing subordinates to falsify time

sheets.13 Moody's termination stemmed from allegations by Carol

Jones, one of her subordinates, who stated that Moody had directed

her to add hours to her time sheet that she had not worked.

Specifically, Jones stated that she had accompanied Moody on

personal errands during the work week; that, on August 26, 1994,

Jones submitted to Moody a time sheet of hours worked; that Moody

crossed out Jones's actual hours and added three hours of overtime

that Jones had not worked; and that Moody instructed Jones to

complete a new time sheet with the revised numbers. 

Jones said this was not the first time Moody had directed her

to add hours to her time sheet. In support of her allegations,

Jones showed Frisby the original August 26 time sheet containing

Moody's markings and revisions.

After Jones came forward with her allegations, Frisby

contacted Vannoy, and they investigated Jones's allegations,

concluding that Jones was a credible person and that parking garage

records corroborated her allegations that Moody had left Kellogg's
 

14 Moody insists that Frisby and Vannoy should have given her a chance to

explain her parking record, because she car pooled with another person, and the

recorded exits from the garage could have been made by that colleague. Moody

misapprehends the significance of the parking records. They indicate that her car

left precisely when Jones claimed to have gone on errands with her. Frisby and

Vannoy did not use the parking records simply to see whether Moody's car was absent

during the work week; rather, they used them to corroborate Jones's story that Moody

left, with Jones in the car, at particular times.

 

15 Moody asserts that Reed's statement could not have provided support for her

termination, because the statement was “tainted” by the fact that when Frisby took

Reed's statement, Frisby advised Reed that Moody was no longer with Kellogg. But

Reed's deposition indicates that Reed gave her statement before she was told that

Moody had been fired:

MR. POTTS (Moody's Attorney): . . . [W]hat I'm really trying to find

out, Ms. Reed, is whether at that meeting you were informed that they

were going to fire Jo Ann Moody, regardless of what you said or whether

or not your signed statement would help them, then they would fire Jo

Ann Moody. Do you understand what I'm getting at?

REED: Well, I wasn't told any of that. I was just told to give the

statement. And I gave my statement and they said are you awareSS“Are

you aware that Jo Ann Moody is no longer an employee at Kellogg?”

This discussion shows that Reed gave her statement before she knew Moody was

going to be fired. Moreover, Frisby's deposition testimony indicates that Frisby

took Reed's statement before Vannoy and Frisby terminated Moody, and the fact that

Reed's handwritten and signed statement is dated 8:35 a.m., September 6, 1994 (the

day Moody was fired), corroborates Frisby's testimony.

16

premises when Jones claimed she had.14 In addition, Frisby and

Vannoy heard from Vanessa Reed, another subordinate of Moody's,

that Moody “as a supervisor” told Reed to add hours to her time

sheets that Reed had not worked.15

Moody claims that the manner in which the investigation was

conducted indicates that Kellogg's stated reason was pretextual.

She claims the investigation was tainted because Kellogg should

have better investigated the parking records and because Frisby

intimidated employees into making statements against her. We

disagree that these contentions establish pretext. 

Moody's assertion that Kellogg's failure to do more to

investigate her side of the story indicates that the stated reason
 

16 See Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1256 (5th Cir.

1977), overruled in part on other grounds, 647 F.2d 513 (5th Cir. May 1981)

(holding that employer's action based on “honest belief” that the plaintiff

violated time card policy did not constitute unlawful discrimination, even if

employer's belief was based on inaccurate information); Corley v. Jackson Police

Dep't, 566 F.2d 994, 1003 n.14 (5th Cir. 1978) (“[W]here an employer wrongly

believes that an employee has violated company policy, [the employer] does not

discriminate in violation of Title VII if it acts on this belief.”). 

 

17 The evidence reflects that Frisby may have indicated to Sherry Dancer and

Vanessa Reed that they would be terminated if they did not give a statement

(continued...)

17

was pretextual fails for two reasons. First, it rests on the

mistaken notion that Kellogg's decision to fire Moody is lawful

only if it proved she had engaged in improprieties. Kellogg

needed only to base its termination decision on a good-faith belief

that Moody had abused her supervisory position in violation of

company policy.16 It did not need to undertake heroic efforts to

ensure that its investigation was flawless.

Moreover, Moody misunderstands the role of the parking

records. The records showing that Moody's car left Kellogg's

premises during the work week were not, by themselves, the basis

for the termination; they merely corroborated Jones's allegation

that Moody and Jones had left work during hours the women's time

sheets showed they worked. Given this limited role, Kellogg did

not need to ask Moody about the parking records to form a

reasonable, good faith belief that Jones was telling the truth.

Moody's claim that Frisby's “intimidation” of employees

indicates a lack of good faith is also unavailing. Frisby may well

have used questionable tactics in questioning some Kellogg

employees about Moody's alleged misconduct. Kellogg's decision to

fire her was not based on coerced testimony, however,17 but on
(...continued)

supportive of the case against Moody. Reed, however, expressly stated that fear of

losing her job did not influence her statement, and Dancer's statement was not part

of the basis of Kellogg's decision to fire Moody. At any rate, Jones's unsolicited

allegations, corroborated by the marked-up time sheets and the parking records, gave

Kellogg a sufficient reason for firing Moody. 

18

Jones's allegations, corroborated by the marked-up time sheets and

the parking records, and on Reed's statement.

The evidence compels the conclusion that Kellogg had a

nondiscriminatory business reason for terminating Moody, and Moody

has not produced evidence that would permit a rational juror to

find pretext. Hence, she cannot prove a discriminatorily motivated

adverse employment action, and her ADA claim would fail even if she

had a statutory disability, which she does not.

V.

The court properly granted summary judgment on Moody's

workers' compensation retaliation claim, because she has not

produced sufficient evidence to establish a causal connection

between her filing a claim and Kellogg's decision to fire her.

Section 451 of the Texas Labor Code forbids discrimination against

employees who engage in specific protected activity, including

filing workers' compensation claims. See TEX. LABOR CODE § 451.001;

Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 589 (5th Cir.

1995). To prevail on a § 451 claim, an employee must establish

that his participation in one of the specified types of protected

activity motivated the employer to discharge or otherwise
 

18 See Burfield, 51 F.3d at 589 (citing Swearingin v. Owens-Corning Fiberglass

Corp., 968 F.2d 559, 561 (5th Cir. 1992)).

 

19 Moody's brief cites a number of cases holding that circumstantial evidence

may establish causation and stating that an employee may prevail on the issue of

causation if he can establish that his protected activity contributed to, but was

not necessarily a “but for” cause of, the termination. All these cases preceded

Cazarez, however. Moody's brief does not even mention Cazarez, the Texas Supreme

Court's controlling case on the causation requirement under § 451. 

Moody's reply brief then misconstrues Kellogg's brief as contending that

Cazarez holds that the employee's protected activity must be the sole cause of the

termination. Kellogg actually assertedSScorrectlySSthat Cazarez requires a § 451

plaintiff to establish only but for causation. Moody's initial brief had asserted

that Moody need only establish that her filing for workers' compensation contributed

to Kellogg's decision to fire her. Moody's counsel are advised to be more careful

in the future.

19

discriminate against him.18 Moody would have to establish that her

filing the workers' compensation claims was a “but for” cause of

Kellogg's decision; she would have to show that her “protected

conduct [was] such that, without it, the employer's prohibited

conduct would not have occurred when it did.” Continental Coffee

Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).19 This she

cannot do.

Moody first attempts to create a fact issue on causation by

claiming that Marianne Fulghum, the engineering documentation

supervisor, told Moody's co-worker, Pamela Vance, that, if it were

not for Moody and Vance (who also had filed a compensation claim),

the department would have a perfect safety record. This statement,

which is a fact, is insufficient to constitute a causal connection

between Moody's filing of a claim and her termination. There is no

nexus between Fulghum's comment and Frisby's decision to terminate

Moody's employment, and the comment is but a stray remark that
 

20 See Armendariz v. Pinkerton Tobacco Co., 58 F.3d 144, 153 (5th Cir. 1995)

(stating that vague and remote comments are insufficient to establish

discrimination).

 

21 See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir.

1996) (en banc) (recognizing that it is “well settled that an employee's subjective

belief . . . without more, is not enough to survive a summary judgment motion”);

Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (holding

that an employee's “subjective beliefs are no more than conclusions and are not

competent summary judgment evidence”).

20

cannot support causation.20

Moody next points to Vance's statement, made in an affidavit

submitted after Vance was terminated, that Vance believed her

discharge was retaliatory. Vance stated, “I am of the opinion that

I was terminated because . . . I had sustained an on the job injury

that had resulted in the filing of a workers' compensation claim.”

Moody reasons that this statement, which shows that Kellogg engaged

in retaliatory discharge in other cases, raises a fact question as

to whether Kellogg had terminated Moody with retaliatory motives.

But Vance's conclusionary and speculative affidavit would not

constitute competent evidence of causation in her own case21 and

certainly cannot create an issue of material fact regarding Moody's

claim.

Moody's attempt to prove but for causation using “statistics”

regarding the percentage of workers' compensation claimants who

leave Kellogg is similarly unavailing. Moody notes that from

October 22, 1991, to June 20, 1994, 27 clerical and administrative

personnel similarly situated to Moody filed workers' compensation

claims and that by August 30, 1996, 21 of them, or 77.7 per cent,

were no longer with the company. This evidence, however, is

insufficient to raise a fact issue as to causation. Moody makes no
 

22 The record does not support Moody's claim that Judy Gaedchens, Vanessa

Reed, or Sherry Dancer engaged in the same misconduct as did Moody. First of all,

Reed and Dancer were not supervisors and thus could not engage in abuse of

supervisory authority. Moreover, the deposition testimony of the three employees

indicates that any misconduct by Gaedchens was different from Moody's. Reed

testified that Moody directed her to write down time that Reed had not worked and

that Gaedchens never gave a similar instruction. Likewise, Dancer testified that

Gaedchens permitted Dancer to work through lunch to make up time missed; Dancer did

not testify that Gaedchens told Dancer to add time to her time sheet that was never

worked. Gaedchens agreed that this was her practice. 

21

comparison between the attrition rate of workers' compensation

claimants and that of all similarly situated employees. Moreover,

she does not analyze the reasons for the termination of the

workers' compensation claimants; indeed, ten of the twenty-one

resigned voluntarily.

Moody cannot create a fact issue as to causation on the basis

of the fact that similarly situated employees were not disciplined

or discharged for time sheet improprieties, because the employees

to whom Moody refers did not engage in the same misconduct as did

she.22 The record suggests that Judy Gaedchens may have permitted

employees to work through lunch to make up time missedSSadmittedly

a violation of Kellogg's time policies. There is no evidence,

however, that Gaedchens told anyone to augment time sheets with

hours that were never worked. The impropriety Moody apparently

committed is graver than Gaedchens's, and it therefore not

discrimination for Kellogg to take actions against Moody but not

Gaedchens.

Finally, Moody attempts to create a fact issue as to causation

by noting that she was fired the day she presented her doctor's

slip returning her to full-time duty. This evidence is

insufficient to sustain a finding of a causal nexus between her
 

23 Moody cites Carnation Co. v. Borner, 610 S.W.2d 450, 451 (Tex. 1980), in

support of her claim that the timing of her dismissal establishes causation.

Borner, however, never discusses causation.

 

24 See, e.g., Burfield, 51 F.3d at 590; Worsham Steel Co. v. Arias, 831 S.W.2d

81, 82 (Tex. App.SSEl Paso 1992, no writ) (finding a retaliatory motive where an

employer terminated an employee a few days after injury, specifically to deny the

employee the opportunity to file a claim); Chemical Express Carriers, Inc. v. Pina,

819 S.W.2d 585, 590 (Tex. App.SSEl Paso 1991, writ denied) (finding a retaliatory

motive where discharge occurred only one month after compensation claim was filed).

22

workers' compensation claims and her termination.23 The cases

finding the timing of the adverse employment decision to be

circumstantial evidence of causation have looked to the temporal

proximity of the injury or workers' compensation filing to the date

of the adverse employment action.24 Moody was fired over six months

after her injury and her final workers' compensation filing.

Hence, the timing of the termination does not create a material

fact issue regarding the causal nexus between her workers'

compensation claim and her termination.

In addition, as stated above, the summary judgment record

compels the conclusion that Kellogg had a legitimate,

nondiscriminatory business reason for terminating Moody: a

reasonable, good faith belief that she was abusing her supervisory

authority. Even if she could establish a causal link between her

termination and her filing for compensation, Kellogg's

nondiscriminatory reason for terminating her would rebut the

alleged discrimination. See Burfield, 51 F.3d at 590.

AFFIRMED.