United States Court of Appeals

for the Fifth Circuit

No. 20-30733

Summary Calendar

Viola Combs, 

Plaintiff—Appellant,

versus

Exxon Mobil Corporation, 

Defendant—Appellee.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:18-CV-459

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant Viola Combs appeals the district court’s summary 

judgment in favor of Defendant-Appellee Exxon Mobil Corporation

(“Exxon”). For the following reasons, we AFFIRM.

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 19, 2021

Lyle W. Cayce

Clerk

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I. Facts & Procedural History 

In 1990, Combs, an African American woman, began working fulltime for Exxon’s Baton Rouge refinery. In 1994, Combs became an Assistant 

Operator with the company. As an operator, Combs was responsible for 

monitoring highly flammable and toxic substances moving under high 

pressure through pipes and vessels. The processes for which she was 

responsible were potentially hazardous. If a procedure was not followed or an 

accident happened, Combs, other employees, and/or people living near the 

refinery could be harmed. 

According to Combs, she suffered from anxiety and depression and 

from January to March of 2015, she took sick leave to address these issues. 

Though she temporarily returned to work, she was soon briefly hospitalized 

and subsequently began receiving outpatient treatment for her anxiety and 

depression. In July of 2015, Combs’ psychiatrists, Dr. Mark Shoptaugh and 

Dr. Kelechi Ohayagha, recommended that she be allowed to take the 

prescription drug Xanax, a benzodiazepine, as needed. Exxon’s medical 

department became concerned that Combs was taking Xanax while working 

in a safety sensitive position. After a fitness for duty examination, Exxon 

determined that Combs was not fit to return to duty and should continue 

working on her recovery with her doctors. In February 2016, Combs was 

prescribed Vistaril, another medication used for the short-term treatment of 

anxiety. 

In late 2015, Exxon personnel determined that Combs was “totally 

and permanently” disabled. This was because her psychiatric conditions 

were only potentially controlled with sedatives that could place Combs, other 

employees, and the community at risk should she attempt to perform her job 

functions while taking them. Effective April 1, 2016, Exxon granted Combs 

long term disability benefits and treated her as a retiree which gave her instant 

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access to her pension.1 Since Combs was a union member at the time of 

Exxon’s decision, the union grieved and the parties submitted to arbitration. 

After full arbitration proceedings, the arbitrator issued an opinion and award 

in Exxon’s favor finding that the disability retirement was proper. 

Additionally, the arbitrator determined that Exxon had not discriminated 

against or failed to accommodate Combs.

In April of 2018, Combs filed suit against Exxon alleging that it had 

subjected her to unlawful discrimination and wrongful termination on 

account of her disability, race, sex, and age. After the district court partially 

granted Exxon’s motion to dismiss in August 2019, three claims remained: 

(1) discriminatory discharge in violation of the Americans with Disabilities 

Act (“ADA”), see 42 U.S.C. § 12101, et seq.; (2) failure to accommodate in 

violation of the ADA; and (3) failure to promote based on race in violation of 

42 U.S.C. § 1981. In February of 2020, Exxon filed a motion for summary 

judgment seeking dismissal of Combs’ remaining claims. In support of its 

motion, Exxon submitted a 149-paragraph list of “undisputed material facts” 

citing to record evidence. Relying on this evidence, Exxon contended that it 

was entitled to judgment as a matter of law because Combs could not prove 

the merits of her claims.

Combs’ opposition to Exxon’s summary judgment motion was due on 

March 2, 2020. Combs sought, and the district court granted, three 

extensions of this deadline. On May 7, 2020, Combs filed her opposition 

generally adopting the facts set forth by Exxon. She did not file an opposing 

statement contesting Exxon’s proposed undisputed facts. In her opposition,

however, she attempted to argue that Exxon’s proposed facts were disputed. 

1 Prior to this time, Exxon determined thatCombs qualified for short term disability

and gave her full pay and benefits for 26 weeks during her absence from work. 

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She then filed a motion to strike certain parts of Exxon’s evidence on grounds 

that it was submitted to her on the discovery cutoff date of January 6, 2020, 

claiming she did not have time to “properly vet” the evidence. Then on May 

12, 2020, she filed a motion for leave seeking three more days to file an 

opposing statement of material facts in opposition to Exxon’s motion for 

summary judgment. Months passed after Combs filed her motion for leave 

but she never supplemented the record with a proposed opposing statement 

of material facts. 

The district court first denied Combs’ motion to strike on grounds 

that she waited four months to challenge Exxon’s disclosures and offered no 

explanation or good cause for her late filing that was due within seven days of 

Exxon’s disclosures. See M.D. La. LR 26(d)(1). The district court also denied 

Combs’ motion for leave for noncompliance with Local Rule 56(c) because

she belatedly suggested she would file a statement of material facts in 

opposition to Exxon’s but never followed through. See M.D. La. LR 56(c).

Finally, the district court granted Exxon’s motion for summary 

judgment on grounds that Combs failed to come forth with competent 

summary judgment evidence addressing Exxon’s arguments or showing the 

existence of a genuine factual dispute. The district court then dismissed 

Combs’ suit with prejudice. Combs filed this appeal. 

II. Standard of Review

“We review a grant of summary judgment de novo.” Sanders v. 

Christwood, 970 F.3d 558, 561 (5th Cir. 2020). “Summary judgment is proper 

‘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.’” Id. (citing Fed. 

R. Civ. P. 56(a)). A dispute regarding a material fact is “genuine” if the 

evidence is such that a reasonable jury could return a verdict in favor of the 

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

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“[U]nsubstantiated assertions may not be relied on as evidence by the 

nonmoving party.” Carnaby v. City of Hous., 636 F.3d 183, 187 (5th Cir. 

2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The party 

opposing summary judgment is required to identify specific evidence in the 

record and to articulate the precise manner in which that evidence supports 

his or her claim.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 

1998).

III. Discussion

On appeal, Combs argues that the district court erred in dismissing 

her failure to accommodate, discriminatory discharge, and failure to promote 

claims.2 We disagree. As the district court stated in its Ruling and Order, 

“summary judgment is about evidence.” Because Combs failed to present 

any competent summary judgment evidence to the district court, she could 

not carry her burden of showing a genuine issue of material fact. Ragas, 136 

F.3d at 458. Consequently, the district court did not err in granting Exxon’s 

summary judgment motion. 

IV. Conclusion

For the foregoing reasons, the district court’s summary judgment in 

favor of Exxon is AFFIRMED.

2 Combs also briefs arguments against Exxon’s claims of preemption and collateral 

estoppel, however, because the district court did not address these arguments, they are not 

properly before this court on appeal. 

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