United States Court of Appeals

for the Fifth Circuit

No. 22-60109

William Jody Cromwell,

Plaintiff—Appellant,

versus

Boa Vida Hospital of Aberdeen, MS, L.L.C., doing business as

Monroe Regional Hospital,

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:20-CV-174

Before Richman, Chief Judge, and King and Higginson, Circuit 

Judges.

Per Curiam:*

William Jody Cromwell, a former anesthetist at Boa Vida Hospital 

(Hospital), alleges that he was terminated solely due to his disabilities in 

violation of § 504(a) of the Rehabilitation Act of 1973.

1

 The district court 

granted the Hospital’s motion for summary judgment. Because Cromwell 

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

1 See 29 U.S.C. § 794(a).

United States Court of Appeals

Fifth Circuit

FILED

March 16, 2023

Lyle W. Cayce

Clerk

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failed to show that the Hospital’s nondiscriminatory reasons for his 

termination were merely pretextual, we affirm.

I

Cromwell has been an anesthetist since 1976 and began working for 

the Hospital in 2014. He has multiple disabilities. First, he acknowledges 

that he used a walker due to knee pain while working at the Hospital. Second, 

he has hearing loss and stated that he wears hearing aids.

At the Hospital, Nancy Williams managed the operating room. 

Although four physicians used the operating room, most of the surgeries and 

the most complex surgeries were performed by the chief of surgery, Dr. 

Woodrow Brand. In late 2015, Williams told Chris Chandler, the Hospital’s 

administrator, about Cromwell’s mobility struggles. Before the end of 2015, 

Dr. Brand also brought concerns regarding Cromwell’s limited mobility to 

Chandler.

Chandler testified that Dr. Brand, Williams, and other members of the 

surgery team raised concerns over the quality of Cromwell’s anesthesia 

services. Both Dr. Brand and an operating room nurse, Dana Thompson,

testified that Cromwell appeared to have trouble hearing alarms going off 

during surgery. Thompson testified that when this happened, she would 

check on the patients to make sure they were safe. Williams testified that she 

received questions from patients and their families about Cromwell’s 

inability to hear. Cromwell admits that nurses questioned him about alarms 

going off, but he claims he was ignoring false alarms.

Chandler testified that Dr. Brand told him three or four times that 

Cromwell had provided patients with insufficient anesthesia. Further, Dr. 

Brand, Williams, and Thompson all testified that intubation seemed more 

difficult for Cromwell than for others in his position.

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In November 2017, Cromwell had difficulty intubating a patient. 

According to Dr. Brand, Cromwell tried to intubate the patient multiple 

times without success, which caused significant bleeding and endangered the 

patient. Cromwell testified that the patient had undergone more than twenty 

surgeries on her face, which made her difficult to intubate. Dr. Brand 

testified that Cromwell did not discuss the second intubation attempt with 

him, which was symptomatic of Cromwell’s inability to communicate 

effectively. Williams and Thompson testified that before Dr. Brand could 

speak to the patient’s family about what had occurred, Cromwell spoke to 

the family, even though the conversation should have been reserved for the 

treating physician.

Chandler testified that when he heard what had occurred, he launched 

an investigation into the incident and sought information from the surgery 

team. Chandler testified that he concluded that Cromwell’s intubation 

difficulty was a concern and that Cromwell had overstepped his role in his 

conversation with the patient’s family. Cromwell admitted that he had 

difficulty intubating the patient, he spoke with the family of the patient who 

was difficult to intubate, and there was an investigation into the 

circumstances surrounding the difficult intubation. However, he did not 

admit to having done anything wrong.

Chandler testified that, after the investigation, he contacted Dr. 

Kimjot Singh, the Hospital’s owner, who had ultimate authority in 

employment decisions. Dr. Singh had never met Cromwell. Chandler told 

Dr. Singh that, over time, the quality of Cromwell’s job performance had 

deteriorated to the point of potential liability. Chandler recommended 

terminating Cromwell. Before terminating Cromwell, Dr. Singh contacted 

Dr. Brand, who expressed patient safety concerns regarding Cromwell’s job 

performance. In January 2018, Chandler informed Cromwell that his 

contract was being terminated. Chandler explained to Cromwell that there 

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needed to be “a change in the anesthesia department.” Cromwell testified 

that Chandler told him that Williams and Dr. Brand were the individuals who 

wanted the change.

Cromwell contends that he was fired not because of poor job 

performance, but rather, because of his disabilities. In support of this claim, 

he points to the two statements regarding his disabilities that were made by 

Dr. Brand and Williams. Further, to negate the testimony of Dr. Brand and 

Williams, five witnesses testified that they did not have any issues with 

Cromwell’s job performance.

The district court granted the Hospital’s motion for summary 

judgment, concluding that Cromwell failed to prove a prima facie case of 

employment discrimination or, in the alternative, that Cromwell failed to 

show that the Hospital’s justification for his termination was pretextual. 

Cromwell timely appealed. This court has jurisdiction under 28 U.S.C. 

§ 1291.

II

Cromwell argues that the district court erred in dismissing his claim 

for discrimination under the Rehabilitation Act. “The Rehabilitation Act 

‘prohibits discrimination on the basis of disability by recipients of federal 

funds.’”2 Where a plaintiff relies on circumstantial evidence in support of a

discrimination claim under the Rehabilitation Act, as is the case here, the

2 Cohen v. Univ. of Tex. Health Sci. Ctr., 557 F. App’x 273, 277 (5th Cir. 2014) (per 

curiam) (unpublished) (quoting E.E.O.C. v. Chevron Phillips Chem. Co., 570 F.3d 606, 614 

n.5 (5th Cir. 2009)).

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claim is analyzed at summary judgment under the McDonnell Douglas3

burden-shifting framework.4

Under this framework, a plaintiff must first establish a prima facie case 

of discrimination. “To establish a prima facie case of discrimination under 

the Rehabilitation Act, ‘a plaintiff must prove that (1) she is an “individual 

with a disability”; (2) who is “otherwise qualified”; (3) who worked for a 

“program or activity receiving Federal financial assistance”; and (4) that she 

was discriminated against “solely by reason of her or his disability.”’”5

If the plaintiff establishes a prima facie case, “the burden shifts to the 

defendant to ‘articulate some legitimate nondiscriminatory reason’ for its 

actions.”6 To satisfy this burden, the defendant need only produce “any 

evidence ‘which, taken as true, would permit the conclusion that there was a 

nondiscriminatory reason for the adverse action. . . .’”7

“If the defendant meets his burden . . . , then the burden shifts back to 

the plaintiff to show that the nondiscriminatory justification was mere pretext 

for discrimination . . . .”8 A plaintiff may demonstrate pretext “by showing 

3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

4 See Houston v. Tex. Dep’t of Agric., 17 F.4th 576, 585 (5th Cir. 2021) (citing Cohen, 

557 F. App’x at 277).

5 Id. at 586 (quoting Hileman v. City of Dall., 115 F.3d 352, 353 (5th Cir. 1997)

(quoting 29 U.S.C. § 794(a))).

6 Cohen, 557 F. App’x at 278 (quoting Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 

396 (5th Cir. 1995)).

7 Daigle, 70 F.3d at 396 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 

(1993)); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (“This 

burden is one of production, not persuasion; it ‘can involve no credibility assessment.’” 

(quoting St. Mary’s Honor Ctr., 509 U.S. at 509)).

8 Cohen, 557 F. App’x at 278 (citing Seaman v. CSPH, Inc., 179 F.3d 297, 300-01 

(5th Cir. 1999)).

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that the employer’s proffered explanation is unworthy of credence.”9 “An 

explanation is false or unworthy of credence if it is not the real reason for the 

adverse employment action.”10

A district court’s grant of summary judgment is reviewed de novo.11

“Summary judgment is appropriate ‘if the movant shows that there is no 

genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law’”12 and not appropriate if “a reasonable jury could return 

a verdict for the non-moving party.”13 We view the evidence in the light most 

favorable to the non-movant.14 “However, the non-movant must go beyond 

the pleadings and present specific facts indicating a genuine issue for trial in 

order to avoid summary judgment.”15 “[T]his court typically will not 

consider evidence or arguments that were not presented to the district court 

for its consideration in ruling on the motion.”16

9 Reeves, 530 U.S. at 143 (citation omitted).

10 Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003) (citing Sandstad v. CB 

Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002)).

11 See Feist v. La., Dep’t of Justice, Off.of the Att’y Gen., 730 F.3d 450, 452 (5th Cir. 

2013) (citation omitted).

12 Johnston & Johnston v. Conseco Life Ins. Co., 732 F.3d 555, 561 (5th Cir. 2013) 

(quoting Fed. R. Civ. P. 56(a)).

13 Bluebonnet Hotel Ventures, L.L.C. v. Wells Fargo Bank, N.A., 754 F.3d 272, 276

(5th Cir. 2014) (quoting Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir.

2000)).

14 Feist, 730 F.3d at 452 (citation omitted).

15 Bluebonnet Hotel Ventures, 754 F.3d at 276 (citing Celotex Corp. v. Catrett, 477 

U.S. 317, 324 (1986)).

16 Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017) (internal quotation marks and 

citations omitted); see also Davidson v. Fairchild Controls Corp., 882 F.3d 180, 185 (5th Cir. 

2018) (“When evidence exists in the summary judgment record but the nonmovant fails 

even to refer to it in the response to the motion for summary judgment, that evidence is not 

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We assume—but do not decide—that Cromwell has established a 

prima facie case of discrimination under the Rehabilitation Act.

17 Pursuant 

to the second step of the McDonnell Douglas framework, the Hospital has 

asserted its “legitimate, non-discriminatory reason[s]”18 for terminating 

Cromwell’s employment, which were Cromwell improperly dosing patients,

ignoring alarms, struggling with intubation, and ineffectively 

communicating. We therefore consider whether Cromwell can show that the 

Hospital’s purported reasons were pretextual such that a reasonable jury

could conclude that his termination was due to his disabilities. The district 

court concluded that Cromwell failed to show pretext, and we similarly

conclude that none of the evidence upon which Cromwell relies creates an 

issue of fact as to the Hospital’s articulated reasons for terminating his 

employment.

Although Cromwell denies that he had performance problems, merely 

disputing the Hospital’s assessment of his performance does not create an 

issue of fact because the issue at the pretext stage is whether the reason for 

termination was the real reason for termination, not whether the reason was 

correct.19 Moreover, Cromwell admits to many of the underlying events 

upon which the Hospital claims it based its termination decision, including 

properly before the district court.” (quoting Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 

2003))).

17 See Houston v. Tex. Dep’t of Agric., 17 F.4th 576, 582 (5th Cir. 2021); Cohen v. 

Univ. of Tex. Health Sci. Ctr., 557 F. App’x 273, 278 (5th Cir. 2014) (per curiam) 

(unpublished).

18 Richardson v. Monitronics Int’l, Inc., 434 F.3d 327, 333 (5th Cir. 2005).

19 See Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 899 (5th Cir. 2002) (citing 

Evans v. City of Hous., 246 F.3d 344, 355 (5th Cir. 2001)); see also Ogden v. Brennan, 657 F. 

App’x 232, 236 (5th Cir. 2016) (per curiam) (unpublished) (citing Sandstad, 309 F.3d at

899).

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ignoring alarms, having difficulty intubating a patient, and speaking with the 

family of the patient who was difficult to intubate. Additionally, he admits 

that Hospital employees investigated the November 2017 incident and asked 

him about his communication with the patient’s family. That the Hospital 

was sufficiently concerned with the event that it conducted an investigation 

weighs against a finding of pretext. Finally, the fact that the hospital received 

no written complaints about Cromwell does not undermine the deficiencies 

in his performance observed directly by hospital employees, and the district 

court correctly stated that Cromwell’s testimony that some employees did 

not have a problem with his work “did not negate the testimony of those that 

did.”

To connect his termination to his disabilities, Cromwell provides 

evidence of disability-related comments made by Dr. Brand and Williams. 

Dr. Brand testified regarding his conversations with Chandler: “Really, as 

best I can recall, the first conversations were more about just [Cromwell’s]

walking and the difficulty hearing and the perception. It was just about the 

perception that the patients would have. . . . [I]nitially it was pretty, you 

know, limited to just those concerns and how can we make it better.” 

Cromwell admits in his reply brief that these comments occurred two years 

prior to his termination. Thus, this comment is insufficient to show 

pretext.20 Similarly, that Williams described Cromwell’s admitted disability 

20 See, e.g., Wallace v. Methodist Hosp. Sys., 271 F.3d 212, 222 (5th Cir. 2001)

(“Where comments are vague and remote in time they are insufficient to establish 

discrimination.” (internal brackets, internal quotation marks, and citation omitted)); 

Nguyen v. Univ. of Tex. Sch. of L., 542 F. App’x 320, 325 (5th Cir. 2013) (per curiam) 

(unpublished) (finding statements made over a year before discharge to be too remote to 

raise a fact issue).

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to Chandler does not show pretext, especially where the conversation

occurred multiple years prior to Cromwell’s termination.21

Additionally, the Hospital knew of Cromwell’s disabilities by 2015 but 

did not terminate his employment until early 2018. The timing of his 

termination does not indicate pretext because (1) for multiple years, the 

Hospital accommodated his disabilities and (2) the termination occurred two 

months after the November 2017 incident.22

On appeal, Cromwell also argues that there is evidence of pretext 

because Dr. Singh did not mention the November 2017 incident explicitly in 

his deposition and because Williams and Dr. Brand are “interested 

witnesses.” However, he did not raise these arguments for pretext in the 

district court. We therefore do not consider them here.23

Considered individually and collectively, Cromwell’s evidence

properly before this court does not show that the Hospital’s articulated 

nondiscriminatory reasons for Cromwell’s termination were merely 

pretextual. Accordingly, we hold that the district court did not err in granting 

the Hospital’s motion for summary judgment and dismissing Cromwell’s 

claims under the Rehabilitation Act.

21 See Wallace, 271 F.3d at 222; Nguyen, 542 F. App’x at 325.

22 See Burton v. Freescale Semiconductor, Inc., 798 F.3d 222, 240 (5th Cir. 2015)

(“Timing standing alone is not sufficient absent other evidence of pretext.” (quoting Boyd 

v. State Farm Ins. Cos., 158 F.3d 326, 330 (5th Cir. 1998))); Rogers v. Bromac Title Servs., 

L.L.C., 755 F.3d 347, 354 (5th Cir. 2014) (finding possible inference of pretext due to 

temporal proximity of protected conduct negated by even greater temporal proximity to 

inappropriate, nonprotected conduct).

23 See Grogan v. Kumar, 873 F.3d 273, 277 (5th Cir. 2017).

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* * *

The judgment of the district court is AFFIRMED.

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