# United States Court **of Appeals**  **f or 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 A ct 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 Case: 22-60109 Document: 00516678766 Page: 1 Date Filed: 03/16/2023No. 22

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2 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 use d a walker due to knee pain while working at the Hospital

. Second , he has hearing loss and stated that he wears hearing a ids.
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 o f 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 w hen 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 al arms going off , but he claims he was ignoring false alarms.

Chandler testified that Dr. Brand told him three or four times that
Cro mwell 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. Case: 22-60109 Document: 00516678766 Page: 2 Date Filed: 03/16/2023No. 22

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3 In November 2017, Cromwell had difficulty intubating a patient. According to Dr. Brand, Cromwell tried to intuba te the patient multiple times without success, which caused significant bleeding and en dange red the patient. Cromwell testified that the patient had undergone more than twenty surgeries on her face, which made her difficult to intubate. Dr. Brand
testifi ed 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 occ urred, 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 patie nt, 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, a fter 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
deteriora ted to the point of potential liability. Chandler recommended
terminat ing Cromwell

. B efore terminating Cromwell, Dr. Singh contacted
Dr. Brand , who expressed patient safety concerns regarding Cromwell’s job performance. In January 2018 , Chandle r informed Cromwell that his contract was being terminated. Chandler explained to Cromwell that there Case: 22-60109 Document: 00516678766 Page: 3 Date Filed: 03/16/2023No. 22

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4 needed to be “a change in the anesthesia departmen t

. ” 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 cla im, 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, conclud ing 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

.
I I
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 R ehabilitation 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) ). Case: 22-60109 Document: 00516678766 Page: 4 Date Filed: 03/16/2023No. 22

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5 claim is analyzed at summary judgment under the McDonnell Douglas 3
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 he r 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
evide nce ‘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, 14 2 (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, 30 0

- 0 1 (5th Cir. 1999) ). Case: 22-60109 Document: 00516678766 Page: 5 Date Filed: 03/16/2023No. 22

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6 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 review ed 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, 27 6 (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 t o refer to it in the response to the motion for summary judgment, that evidence is not Case: 22-60109 Document: 00516678766 Page: 6 Date Filed: 03/16/2023No. 22

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7 W e 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 “legi timate, 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 th at the Hospital’s purported reason s w ere pretext ual such that a reasonable jur y 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 reason s for terminating his employment.
Although Cromwell denies that he had performance problems, merely disputing the Hospital’s assessment of his performan ce 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 whi ch 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 ). Case: 22-60109 Document: 00516678766 Page: 7 Date Filed: 03/16/2023No. 22

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8 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 investi gated the November 2017 incident and asked him about his communication with the patient’s family. That the Hospital

w as sufficiently concerned with the event that it conducted an investigation weighs against a finding of pretext. Finally, t he fact that t he 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 p roblem 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 conversation s 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) ( “ W here 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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9 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 no t 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 arg uments 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 re asons 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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10 * * *
The judgment of the district court is **AFFIRMED**

. Case: 22-60109 Document: 00516678766 Page: 10 Date Filed: 03/16/2023