IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

No. 95-60331 Summary Calendar _______________

JOHNNIE HAWKINS,

Plaintiff-Appellant,

VERSUS

MICROFIBRES, INC.,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Northern District of Mississippi (1:94-CV-86) _________________________

January 31, 1996 Before KING, SMITH, and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Plaintiff Johnnie Hawkins appeals a summary judgment.1 In her

first claim, she alleges wrongful discharge under Mississippi law,

contending that defendant Microfibres discharged her because she

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 1 Hawkins also raises a contractual claim, which she refers to as “estoppel.” We do not review this claim, as it is a new issue raised for the first time on appeal. See Atlantic Mut. Ins. Co. v. Truck Ins. Exch.,

(5th Cir. 1986). reported to company officials an allegedly illegal act committed by

her supervisor. In her second claim, she alleges employment

discrimination in violation of the Americans with Disabilities Act,

(West 1995) (“ADA”), contending that

Microfibres discharged her because it regarded her as disabled. We

affirm the summary judgment as to the state law claim and reverse

and remand as to the ADA claim.

I.

Microfibres, a North Carolina corporation, manufactures and

distributes fabric for upholstered furniture. Hawkins, a citizen

and resident of Mississippi, worked for Microfibres at their

warehouse distribution facility in Tupelo, Mississippi. Although

her job title was “office manager,” her duties primarily consisted

of data entry and general office duties. Microfibres actively

employed Hawkins from about September 1987 to mid-January 1994,

when Microfibres put her on an indefinite, unpaid leave of absence.

Hawkins’s immediate supervisor, Darnell George, gave her good

performance reviews until the 1993 inventory, which revealed that

the warehouse had no “Reno Onyx” fabric in stock, even though

Hawkins’s computer records showed that it should have. Hawkins

allegedly became suspicious and investigated the matter, concluding

that George was improperly holding shipping records in a “hold

file,” causing the company not to be paid for fabric that had been

shipped out. In April 1993, Hawkins reported to Microfibres’s

management that George was allegedly committing mismanagement

2 and/or theft.

According to Hawkins, George learned of Hawkins’s

investigation and initiated a pattern of harassment, including

such behavior as eliminating Hawkins’s overtime and stripping her

of her duties as office manager. In response to Hawkins’s initial

report to management, the company’s director of human resources,

Janice Vogler, came to Tupelo to investigate Hawkins’s reports.

According to Hawkins, Vogler was unconcerned about the alleged

improprieties.

George, after discussing Hawkins’s allegations with Vogler,

offered to resign. Vogler refused to accept the resignation and

visited George’s home because, according to Hawkins, Vogler was

very upset about the whole matter.

After Vogler’s investigationSSonce again, according to

HawkinsSSGeorge began systematically filing complaints about

Hawkins’s behavior and relaying them to Vogler. On January 14,

1994, Vogler placed Hawkins on an indefinite, unpaid leave of

absence, purportedly because of Hawkins’s allegedly disruptive

behavior.

Vogler referred Hawkins to Microfibres’s employee assistance

program (“EAP”) to assist her in correcting that behavior. Vogler

told Hawkins that she would have to cooperate fully with any

treatment recommended through the EAP, and that an EAP provider had

to provide her with clearance to return to work before she would be

considered for reinstatement.

Two psychologists examined Hawkins through the EAP. The

3 first, who later stopped treating Hawkins because of a conflict of

interest, reported his findings to Microfibres. His report stated

that he could not release Hawkins to return to work because she

persisted in denying that she had a problem. The second psycholo-

gist cleared Hawkins to return to work; however, while Hawkins

appears to imply that Microfibres saw this report, the company

contends that it never received the report until Hawkins made her

mandatory pre-discovery disclosures during this litigation.

It is undisputed that Microfibres persisted in refusing to

permit Hawkins to return to work. She remains on an unpaid,

indefinite leave of absence.

Some issues of fact are hotly contested.2 Hawkins contends

that Microfibres has discharged her. While it is undisputed that

Hawkins remains on leave, the parties cannot agree as to whether

she has been discharged. That is a mixed question of law and fact,

the answer to which depends in significant part upon the facts

surrounding Microfibres’s decision to place Hawkins on leave.

Another disputed fact involves the reasons behind

Microfibres’s decision to place Hawkins on leave. Microfibres

contends that it was for disruptive behavior, including but not

limited to the following: (1) refusing to speak with fellow

employees for prolonged periods, even days at a time; (2) turning

around and looking away when answering direct questions;

(3) arguing frequently over incidental matters; (4) refusing to

2 We focus here on contested facts relevant to the ADA claim, as we affirm summary judgment on the wrongful discharge claim.

4 help answer the telephones during busy periods; (5) refusing to

cooperate in routine procedures, causing work to pile up;

(6) staring at a co-worker for protracted periods; (7) sitting in

her car in the parking lot for a long time while watching other

employees leave work; (8) waving papers in George’s face while

saying in a sing-song voice, “I’m working, I’m working”; (9)

letting her work pile up while reading recreational materials;

(10) throwing documents and paperwork on co-workers’ desks instead

of handing it to them; (11) spying and eavesdropping on co-workers;

and (12) dancing jigs around a co-worker’s desk while singing or

humming “When the Saints Go Marching In.”

Hawkins either directly contradicts these allegations or

characterizes them in a much more innocent light. For example, she

admits to occasionally humming a song, usually one she heard at

church, but denies that she danced a jig around a desk.

Hawkins offers an alternative reason for Microfibres’s

actions, contending that the company put her on leave because it

regarded her as disabled. In support of this claim, she alleges

that Vogler insist she undergo “behavior modification” therapy.

According to Hawkins, Vogler advised her to apply for disability

benefits, gave her disability claim forms, and referred her to

psychologists for treatment.

II.

We review a grant of summary judgment de novo. Hanks v.

Transcontinental Gas Pipe Line Corp.,

(5th Cir.

5 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

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

party seeking summary judgment carries the burden of demonstrating

that there is an absence of evidence to support the non-moving

party's case. Celotex Corp. v. Catrett,

(1986).

After a proper motion for summary judgment is made, the non-movant

must set forth specific facts showing that there is a genuine issue

for trial. Hanks,

.

We begin our determination by consulting the applicable

substantive law to determine what facts and issues are material.

King v. Chide,

(5th Cir. 1992). We then

review the evidence relating to those issues, viewing the facts and

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

If

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

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

.

III.

Mississippi is an employment-at-will state, although certain

exceptions to that doctrine have arisen. McArn v. Allied Bruce-

Terminix Co.,

(Miss. 1993). McArn estab-

lished a “narrow public policy exception” to the employment-at-will

doctrine: An employee may sue for wrongful discharge when fired

6 (1) for refusing to participate in an illegal act and (2) for

reporting “illegal acts of his employer” to his employer or anyone

else.

.

Hawkins argues that she was fired in violation of the second

prong of this public policy exception. That prong applies,

however, only if the reported acts were (1) illegal and

(2) committed by her employer.

Hawkins’s conclusionary allegations and summary judgment

evidence establish no more than a poor business practice or perhaps

petty theft. Poor business practices are not illegal and do not

satisfy McArn. We assume arguendo that Hawkins has established her

allegations of petty theft and that petty theft is sufficient to

meet the illegality requirement of McArn. She still cannot

prevail, however, as she cannot demonstrate that the theft was

committed by her employer.

Hawkins alleged that George, her supervisor, was stealing from

Microfibres by manipulating its shipping records. Hawkins,

however, necessarily must argue that George was acting on behalf of

MicrofibresSSi.e., as its agentSSin order to meet the requirement

in McArn that the reported act have been committed by her employer.

If George was stealing from Microfibres, then she was acting in her

individual capacity, and not as Microfibres’s agent. To assert the

contrary would lead to the absurd conclusion that Microfibres was

stealing from itself.

Hawkins therefore cannot prove that the act she reported was

both illegal and an act of her employer. Because she cannot

7 satisfy the requirements of the McArn exception, her state law

claim cannot proceed.

IV.

Hawkins also alleges that Microfibres violated the ADA by

terminating her because the company regarded her as disabled. The

ADA prohibits an employer from discriminating against a qualified

individual with a disability because of the disability.

(a).

The ADA has three definitions of “disability.”

(2). The third one defines “disability” as being regarded

as having a physical or mental impairment that substantially limits

one or more major life activities.

(2)(C); see

also

(A). Being significantly restricted in the

general activity of working is a substantial limitation of a major

life activity, but being unable to perform a particular job is not.

See

(j)(3)(I); see also § 1630.2(j)(2)(I)

(stating that working is a major life activity). “Qualified

individual with a disability” means an individual with a disability

who can perform the essential functions of his job, either with or

without reasonable accommodation.

Hawkins brings a “regarded-as-having-a-disability” claim,

proceeding under the ADA’s third definition of “disability.” An

employment discrimination plaintiff, in order to defeat summary

judgment on a “regarded-as-having-a-disability” claim under the

ADA, must establish at least that a genuine issue of material fact

8 exists with respect to the following elements of the claim: (1) He

was qualified, i.e., could perform the essential functions of his

job, either with or without reasonable accommodation; (2) he was

regarded as “disabled” within the meaning of the ADA, i.e., his

employer regarded him as having a physical or mental impairment

that substantially limited one or more major life activities; and

(3) he was discriminated against because of the disability.

The record shows that a genuine issue of material fact exists

as to each of these elements except the first. Microfibres admits

that Hawkins is qualified, conceding that she is capable of

performing her job.

Hawkins alleges that Microfibres considered her as having a

mental impairment that substantially limited her ability to work in

general. Microfibres admits that it placed her on an indefinite

leave of absence, which constitutes a significant restriction on

Hawkins’s ability to work. Microfibres also concedes that it asked

Hawkins to undergo psychological evaluations, although it claims

that it did so to correct behavioral problems rather than a mental

impairment. Microfibres’s position in this regard is undermined by

the fact that Vogler gave Hawkins an application to fill out so

that she could receive disability benefits. This application,

furthermore, was entitled “Disability Claim.”

Finally, Hawkins contends that Microfibres put her on an

unpaid leave of absence because it regarded her as disabled. The

most direct evidence on this element is that Vogler gave Hawkins

the disability forms right after placing her on an indefinite leave

9 of absence. Furthermore, George’s documentation of Hawkins’s

behavior, which George had made available to the company, concluded

that “[s]omething [was] wrong” with her [Hawkins] and that she was

“ill.”3

It would not be beyond reason for a trier of fact to conclude

from this evidence that Microfibres regarded Hawkins as disabled.

Summary judgment on this claim was therefore inappropriate.

Accordingly, we AFFIRM summary judgment on the wrongful discharge

claim, REVERSE summary judgment on the ADA claim, and REMAND for

further proceedings as to the latter. We express no view on the

parties’ respective chances of ultimate success in this case.

3 Hawkins also points to the fact that she was not reinstated to her former position, even after the second psychologist from the EAP cleared her to return to work. Whether Microfibres had access to the second psychologist’s report is critical to an accurate interpretation of this action. In any event, a jury could consider the first psychologist’s reportSSwhich characterized Hawkins as having a problem preventing her from returning to workSSas evidence supporting the inference that Microfibres resisted reinstating Hawkins because it regarded her, in a general sense, as unfit to return to work.

10