* 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should not be published and is not precedent except under the limited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. 97-10366

Summary Calender

_______________

NADINE MALLERY,

Plaintiff-Appellant,

VERSUS

CITY OF DALLAS,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:95-CV-1919-H)

_________________________

June 11, 1998

Before JONES, SMITH, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Nadine Mallery appeals a summary judgment for the City of

Dallas on employment discrimination claims brought under the

Americans with Disabilities Act (“ADA”) and related retaliation

claims. Finding no error, we affirm.
1 The City of Dallas Personnel Rules provide that a city employee is

“probationary” for the first six months of employment. During that time, he has

no property interest in his job. If his superiors determine that his

performance is not satisfactory, they may terminate him (if it is his first

position with the city), or demote him to his last non-probationary position.

2

I.

Mallery began work for the Dallas City Auditor's Office in

July 1992 as an Auditor class 11. About two months later, she

sought counseling for chronic depression. One day she missed

several hours of work because of counseling and informed the Audit

Manager, Jon Coffee, of her therapy in order to explain the lost

time.

In March 1993, Mallery was promoted to Auditor class 13.

Shortly thereafter, she was forced to miss a day of work because of

sealant fumes emanating from a newly refinished office door.

Instead of taking vacation or sick time, Coffee recommended filing

a workers' compensation claim, which she did.

In May 1993, Mallery's boss, Daniel Paul, the City Auditor,

notified Mallery that she had not been successful in her six-month

probationary period as Auditor class 13. He cited performance and

deportment problems since advancing to her new post. As a result,

he demoted her to her original position of Auditor class 11.

Simultaneously, however, Paul promoted Mallery to Auditor class 12,

thus beginning a six-month probationary period in that position.1

In July 1993, Paul informed Mallery of several problems with

her performance since her promotion to Auditor class 12, including
2 In the litigation that ensued, the district court granted summary

judgment to the City on Mallery's sex discrimination suit; she does not appeal

that ruling.

3

being late to work sixteen times in less than two months; using

office equipment for personal use; and having bad working

relationships with her supervisors. The next day, Mallery filed a

complaint with the EEOC in which she alleged that her demotion was

the result of sex discrimination in violation of title VII.2

In September 1993, the Assistant City Auditor, Rob Darby, sent

a letter to Paul concerning Mallery's use of her sick leave without

a documented medical excuse. Thereafter, Paul terminated Mallery's

probationary status as Auditor class 12 and demoted her to her

original position as Auditor class 11. Paul cited performance and

attendance problems for the demotion. In response, Mallery filed

another EEOC complaint, this time alleging retaliation for her

previous complaint in violation of title VII and alleging

discrimination because of her chronic depression.

Again, Mallery's supervisors requested medical documentation

for her extensive use of sick time, as required by the Dallas City

Personnel Rules. In reaction to the request, Mallery yelled at her

supervisor and refused to provide the documentation. A few days

later, Mallery was suspended with pay pending a review of her

conduct for possible violations of the Dallas City Personnel Rules

for unacceptable conduct in the office.

During that time, Mallery requested a transfer to a “more
4

understanding and nurturing environment” as a “reasonable

accommodation” for her disability of chronic depression. The

City's committee on accommodating persons with disabilities

refused, concluding that her performance and interpersonal problems

would likely follow her to any position within city government.

In April 1994, Mallery was ordered to return to work to face

a hearing on the pending disciplinary charges. She refused to do

so, and after four months of repeated requests and repeated

refusals, Paul fired her, citing her refusal to return to work to

face the disciplinary hearing; her refusal to provide medical

documentation for her extended use of sick time; and her disorderly

conduct when requested to provide medical documentation for her use

of sick leave.

Again, Mallery filed an EEOC complaint alleging retaliation

for her previous EEOC complaints. In May 1995, the EEOC issued

determination letters concluding that there were no violations of

title VII or the ADA, and advised Mallery of her right to sue. 

II.

We review a summary judgment de novo. See Hanks v.

Transcontinental Gas Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine
5

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” FED. R. CIV. P. 56(c). The movant bears the burden of demonstrating that there is an absence of

evidence to support the respondent’s case. See Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). The non-movant then must set

forth specific facts showing there is a genuine issue for trial.

See Hanks, 953 F.2d at 997.

We begin by consulting the applicable substantive law to

determine what facts and issues are material. See King v. Chide,

974 F.2d 653, 655-56 (5th Cir. 1992). If there are fact issues, we

review the evidence relating to them, viewing the facts and

inferences in the light most favorable to the non-movant. See id.

If the non-movant sets forth specific facts in support of

allegations essential to his claim, a genuine issue is presented.

See Celotex, 477 U.S. at 323; Brothers v. Klevenhagen, 28 F.3d 452,

455 (5th Cir. 1994).

III.

A.

Mallery's “chronic depression” does not constitute a

disability under the ADA. In order to understand a plaintiff’s

evidentiary burden better, we first review the ADA’s mandate: “No

covered entity shall discriminate against a qualified individual

with a disability because of the disability of such individual in
3 A plaintiff can prove discrimination directly or indirectly. Directly,

he must show that he is disabled under the act; that with or without reasonable

accommodation he could perform the job; and that the employer discharged him

because of his disability. See 42 U.S.C. § 12112(a); Taylor v. Principal Fin.

Group, Inc., 93 F.3d 155, 162 (5th Cir.), cert. denied, 117 S. Ct. 586 (1996).

Alternately, he can use a burden-shifting analysis to make out a prima

facie case of discrimination. See, e.g., McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802 (1973). To do so, he must show that he is disabled under the

act; that he is qualified with or without accommodation; that he was subject to

an adverse employment action; and finally, that he was replaced with a nondisabled person. See id; Daigle v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th

Cir. 1995). Both methods, however, require that the plaintiff make an initial

showing that he is “disabled,” as statutorily defined.

6

regard to job application procedures, the hiring, advancement, or

discharge of employees, employee compensation, job training, and

other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). Therefore, a plaintiff is obliged to make an initial

showing that he has a “disability” in order to invoke the ADA’s

protections.3

The ADA defines a “disability” as follows:

The term “disability” means, with respect to an

individualSS

(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).

“Major life activities means functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.” 29 C.F.R. § 1630.2(i)
7

(1997). This list is illustrative, rather than exclusive. See id.

§ 1630 app. 

Federal regulations interpret “substantially limit” as

follows:

(1) The term substantially limits means:

(i) Unable to perform a major life activity

that the average person in the general

population can perform; or

(ii) Significantly restricted as to the

condition, manner or duration under which an

individual can perform a particular major life

activity as compared to the condition, manner,

or duration under which the average person in

the general population can perform that same

major life activity.

(2) The following factors should be considered in

determining whether an individual is substantially

limited in a major life activity:

(i) The nature and severity of the impairment;

(ii) The duration or expected duration of the

impairment; and

(iii) The permanent or long term impact, or

the expected permanent or long term impact of

or resulting from the impairment.

29 C.F.R. § 1630.2(j). What “substantially limits one or more

major life activities” ultimately means is determined on a case-bycase basis. See Byrne v. Board of Educ., 979 F.2d 560, 565 (7th

Cir. 1992); Forrisi v. Bowen, 794 F.2d 931, 933 (4th Cir. 1986).

B.
8

Mallery alleges that she is disabled under §§ 12102(2)(A)

and (C): that her depression substantially limits her major life

activities of sleep, thinking, and concentration; and that the city

regarded her as having a mental impairmentSSchronic depressionSSthat

substantially limits one or more of her major life activities.

1.

Even if sleeping, thinking, and concentrating are properly

“major life activities,” Mallery has provided no more than general

assertions that her chronic depression “substantially limits” these

activities. She has offered nothing to support a jury's finding

that the ailment is severe; of long duration; or has a permanent or

long-term impact. Mallery's evidence is accordingly insufficient

to withstand summary judgment on her claim of disability under

§ 12202(2)(A).

2.

Mallery also claims that she is disabled because her employer

“regards her as” having a disability that substantially limits one

or more of her major life activities. 

One is regarded as having a substantially limiting

impairment if the individual (1) has an impairment which

is not substantially limiting but which the employer

perceives as constituting a substantially limiting

impairment; (2) has an impairment which is substantially

limiting only because of the attitudes of others toward

such an impairment; (3) has no impairment at all but is

regarded by the employer as having a substantially

limiting impairment. 
4 Because Mallery has no disability under the ADA, her claims of

discrimination under that act must fail. Accordingly, we need not consider

whether she has made a prima facie case of discrimination; whether the City has

a legitimate non-discriminatory excuse; or whether that excuse is pretextual.

We also do not reach whether the City's refusal to transfer Mallery to a more

“understanding” and “nurturing” work environment constituted a failure to make

reasonable accommodation to the disabled.

9

Burch v. Coca-Cola Co., 119 F.3d 305, 322 (5th Cir. 1997) (internal

quotation and citation omitted), cert. denied, 118 S. Ct. 871

(1998). The key to any “regarded as” claim is some showing that

the employer had a perception that the employee was not up to the

job because of his real or imputed mental or physical impairment.

Mallery presents no evidence to raise a fact issue concerning

whether her employer regarded her as having a disability. She

asserts only that the employer knew about her disability, but can

offer no evidence to support a connection between that knowledge

and adverse employer perceptions. In fact, the record appears to

support the opposite conclusionSSthat her employer regarded her as

a capable auditor, twice granted her promotions, and finally

terminated her because of her insubordination.4

IV.

Next, Mallery asserts that the City took adverse employment

actions against her because she had filed claims with the EEOC.

“To establish a Title VII retaliation claim, [Mallery] must prove:

(1) that she engaged in activity protected by Title VII; (2) that

an adverse employment action occurred; and (3) that a causal
10

connection existed between the participation in the protected

activity and the adverse employment action.” Pierce v. Texas Dep't

of Crim. Justice, Inst. Div., 37 F.3d 1146, 1151 (5th Cir. 1994)

(citation omitted). “Once the prima facie case is established, the

burden of producing some non-discriminatory reason falls upon the

defendant. The employee then assumes the burden of showing that

the reasons given were a pretext for retaliation.” Shirley v.

Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir. 1992) (ADEA claim)

(citation omitted).

Assuming Mallery has properly made a prima facie case, the

City offers, as its non-discriminatory reason for her demotions and

termination, her unacceptable conduct in the workplace, her

insubordination, and her unsatisfactory performance. Mallery

offers nothing to show that these reasons are a pretext for

retaliation. As such, her claims cannot withstand judgment as a

matter of law.

V.

Finally, Mallery brings a state law retaliation claim, in

which she maintains that the City took adverse employment actions

against her because she had filed a workers' compensation claim.

Under Texas law, an employer “may not discharge or in any other

manner discriminate against an employee because the employee has

. . . filed a workers' compensation claim in good faith.” TEX.
5 Mallery also offers no evidence that the only employee with the power to

demote or fire her, Paul, ever disapproved of her filing a workers' compensation

claim.

11

LABOR CODE ANN. § 451.001 (West 1996). 

An employee claiming discharge in violation of § 451.001

has the burden of at least demonstrating a causal link

between the discharge and the filing of the claim for

workers' compensation benefits. While the employee can

meet this burden without showing that he was fired solely

because of the filing of the workers' compensation claim,

he must show that the filing of the claim was at least a

determining factor in the discharge. 

Burfield v. Brown, Moore & Flint, Inc., 51 F.3d 583, 589-90 (5th

Cir. 1995) (per curiam) (citations omitted).

Mallery offers only her subjective belief that there is a

causal connection between her filing of a workers' compensation

claim and her demotions and eventual termination. Under Texas law,

that is not enough to support causation. See Hughes Tool Co. v.

Richards, 624 S.W.2d 598, 599 (Tex. App.SSHouston [14th Dist.]

1981, writ ref'd n.r.e.).5

AFFIRMED.