IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 02-60056

Summary Calendar ____________________

EDWARD T LINDSEY

Plaintiff-Appellant

v.

CHEVRON USA INC

Defendant-Appellee

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi No. 1:00-CV-379-BrR _________________________________________________________________ October 10, 2002

Before KING, Chief Judge, and WIENER and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Edward T. Lindsey appeals from the

district court’s decision granting summary judgment to Defendant-

Appellee Chevron U.S.A., Inc. on Lindsey’s claims for race-based

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. discriminatory discharge and hostile work environment in

violation of Title VII of the Civil Rights Act of 1964,

disability-based discrimination in violation of the Americans

with Disabilities Act, and termination based on a request for

leave in violation of the Family Medical Leave Act. For the

reasons set forth below, we AFFIRM the district court’s grant of

summary judgment to Chevron U.S.A., Inc.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 9, 1984, Edward T. Lindsey, an African-American

male, was hired by Chevron U.S.A., Inc. (“Chevron”) to serve as a

mechanic trainee in the refinery maintenance department. In

April 1990, Chevron promoted Lindsey to the position of refinery

mechanic. He remained in that position until his termination.

While in the employ of Chevron, Lindsey also worked as a

temporary supervisor on several occasions.

On February 22, 1997, Lindsey underwent surgery to receive a

pacemaker in his heart. He subsequently went on medical

disability and received sick leave benefits. Despite the fact

that Lindsey’s physician had released him to return to work on

March 27, Lindsey did not resume his duties at Chevron until May

22, three months after his surgery. When Lindsey returned to

Chevron, he presented a note from his doctor informing his

supervisors of the work limitation brought about by his heart

condition. On doctor’s orders, Lindsey was to avoid working near

2 high voltage equipment. Chevron placed Lindsey on paid leave

while it searched for a temporary job assignment that would

accommodate him. On June 2, Chevron assigned Lindsey to a

temporary clerical position and when that assignment ended,

Chevron again placed Lindsey on paid leave until July 17, on

which date Lindsey’s physician removed the work restriction.

On April 20, 1998, Lindsey filed a charge of discrimination

with the Equal Employment Opportunity Commission (“EEOC”),

contending that he had been discriminated against on the basis of

race and disability. On February 21, 2000, Chevron placed

Lindsey on three-day disciplinary suspension without pay for

excessive absenteeism and repeated tardiness over a three-month

period starting in March 1999. Lindsey’s notice of suspension

admonished that failure to improve his record of tardiness and

absence from work could result in further disciplinary action,

including the possibility of termination.

Beginning March 1, 2000, Lindsey failed to report to work

for six consecutive work days. On March 9, Lindsey’s doctor

informed Chevron that Lindsey had not been instructed to stay

home after Lindsey underwent several medical tests, and instead

he had been cleared to work. On March 10, Chevron discharged

Lindsey on account of his numerous absences from work.

On May 5, 2000, Lindsey filed a second EEOC charge, alleging

that Chevron retaliated and discriminated on the basis of

disability in discharging him. On August 9, Lindsey filed this

3 lawsuit asserting that: (1) because of his race, he was denied a

promotion, discharged, and endured a hostile work environment,

all in violation of Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. 2000e et seq. (2000); (2) he was

terminated in retaliation for filing his EEOC charge; (3) Chevron

failed to accommodate his disability, in violation of the

Americans with Disabilities Act (“ADA”), 29 U.S.C. 701 et seq.

(1994); (4) he was denied leave time that was protected under the

Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. 2601 et seq.

(1994); and (5) under Mississippi law, Chevron intentionally

inflicted emotional distress upon him.

On October 15, 2001, Chevron moved for summary judgment as

to all of Lindsey’s claims. In its Memorandum Opinion and Order

of December 20, 2001, the district court granted summary judgment

in favor of Chevron, finding that Lindsey had failed to present a

genuine issue of material fact with regard to any of his asserted

claims. Lindsey timely appealed the grant of summary judgment.

II. STANDARD OF REVIEW

We review the district court’s grant of summary judgment to

Chevron de novo, applying the same standard as the district

court, e.g., Brown v. Bunge Corp.,

(5th Cir.

2000), and ask whether the pleadings, depositions, and answers to

interrogatories, together with the affidavits, demonstrate that

no genuine issue of material fact remains and that the moving

4 party is entitled to judgment as a matter of law. E.g., Boze v.

Branstetter,

(5th Cir. 1990); FED. R. CIV. P.

56(c). A factual dispute is genuine when a reasonable jury could

return a verdict for the non-moving party. Anderson v. Liberty

Lobby Inc.,

(1986).

The substantive law dictates which facts are material,

Stewart v. Murphy,

(5th Cir. 1999), and an

issue is material if its resolution could affect the outcome of

the action, Anderson,

. Moreover, in summary

judgment determinations, the factual record is reviewed in such a

way that all inferences are drawn in the light most favorable to

the party opposing the motion. E.g., Jurgens v. EEOC,

(5th Cir. 1990). Accordingly, we review the evidence

most favorably to Lindsey.

III. LINDSEY’S RACE DISCRIMINATION CLAIMS

On appeal, Lindsey asserts two theories of discrimination

under Title VII. First, he claims that Chevron discharged him on

the basis of race and second, he claims that he endured a

racially hostile work environment while at Chevron. As to the

first theory, to establish a prima facie case of discriminatory

discharge, Lindsey must show that: (1) he is a member of a

protected group; (2) he was qualified for the position held; (3)

he was discharged from his position; and (4) that he was replaced

by someone outside of the protected group. E.g., Byers v. Dallas

5 Morning News,

(5th Cir. 2000). After Lindsey

makes out a prima facie case of discrimination, Chevron must

provide some legitimate, non-discriminatory reason for the

employee’s rejection. See

(citing McDonnell Douglas Corp. v.

Green,

(1973)). If Chevron proffers a

legitimate, non-discriminatory reason for the employment action,

Lindsey must come forward with evidence that Chevron’s reason was

a mere pretext for discrimination. See id.1

To make out his prima facie case, Lindsey contends that he

was a member of a protected class and that he was qualified to

perform his job duties as assigned. He further asserts that

similarly-situated Caucasian employees were treated more

favorably. To explain, Lindsey provides the example of another

Chevron employee, Joseph Guy, who was allegedly given adequate

1 Under the Racial Discrimination section of his Amended Complaint, Lindsey merely asserts that he was “terminat[ed] . . . while on medical leave.” Perhaps because of Lindsey’s conclusory pleading on the issue, the district court did not specifically address the elements of the discriminatory discharge claim in its opinion. The court did, however, grant summary judgment on Lindsey’s discriminatory denial of promotion claim. Even though the district court did not specifically address the discriminatory discharge claim, the reason for granting summary judgment as to the discriminatory denial of promotion claim would equally apply. Further, the court need not address whether Lindsey raised a genuine issue of material fact regarding his claim for discriminatory denial of promotion (or the retaliation and intentional infliction of emotional distress claims, for that matter) because he waived review of these issues by not incorporating them into his Brief. See, e.g., Sherrod v. Am. Airlines,

, 1119 n.5 (5th Cir. 1998) (citing cases and FED. R. APP. P. 28).

6 warning prior to termination, while Lindsey was not provided with

such a warning. Chevron counters that in relying on Lindsey’s

record of excessive absences and tardiness, it presented

uncontested evidence of a legitimate, non-discriminatory reason

for its employment action. Thus, Chevron claims, it satisfied

its burden of production under the Title VII framework and that

Lindsey has not raised a genuine issue of material fact as far as

pretext is concerned.

Our assessment of the discriminatory discharge claim,

however, need not involve the burden shifting analysis because

Lindsey has failed to satisfy his prima facie case of

discrimination. Lindsey does not rely on the proper standard for

discriminatory discharge articulated by the Fifth Circuit. As a

result, Lindsey fails to come forward with any evidence as to one

essential element of his prima facie case, i.e., whether Chevron

replaced him with someone outside of his protected group. There

is no evidence in the record that Chevron replaced Lindsey with a

non-African-American once he was terminated. Because summary

judgment is appropriate if a plaintiff fails to establish facts

supporting an essential element of his prima facie claim, e.g.,

Mason v. United Air Lines,

(5th Cir. 2001),

Lindsey’s claim for discriminatory discharge fails.

As to Lindsey’s claim of a racially hostile work

environment, this court has made it clear that a plaintiff must

7 show the following to satisfy a prima facie case: (1) he belongs

to a protected group; (2) he was subjected to unwelcome

harassment; (3) the harassment complained of was based on race;

(4) the harassment complained of affected a term, condition, or

privilege of employment; and (5) the employer knew or should have

known of the harassment in question and failed to take prompt

remedial action. E.g., Ramsey v. Henderson,

(5th Cir. 2002). Harassment based on race affects a term,

condition, or privilege of employment when it is sufficiently

severe or pervasive so as to alter the conditions of the

plaintiff’s employment and create an abusive working environment.

(citing Harris v. Forklift Sys., Inc.,

(1993)).

When determining whether a workplace constitutes a hostile

work environment, courts consider the following circumstances:

"the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with

an employee's work performance.”

(quoting Walker v.

Thompson,

(5th Cir. 2000)). All of the alleged

circumstances must be taken into consideration when evaluating a

claim of a racially hostile work environment. See

In support of his claim, Lindsey argues that his supervisors

at Chevron used racial epithets in his presence; that while he

8 was hospitalized, Chevron officials did not send him flowers or

visit him in the hospital, which was allegedly unlike the

treatment that several non-African-American employees received;

that he was required to climb a ladder when he was dizzy; that a

supervisor cursed at him; and that Chevron management allegedly

allowed employees to hang Confederate flags in the maintenance

trailer. Chevron argues that none of the alleged harassment

rises to the level of affecting a term, condition, or privilege

of Lindsey’s employment.

Lindsey fails to present competent summary judgment evidence

support a prima facie case. Of all the articulated incidences,

the only acts of harassment alleged to be race-based are the

racial epithets, the hanging of Confederate flags, and the lack

of hospital visits. These incidences do not rise to the

requisite degree of severity and pervasiveness that our

precedents require. While a plaintiff may survive summary

judgment by showing the existence of “routinely [made] racist

remarks,” Walker,

, the instant case is

distinguishable because Lindsey never provides evidence

concerning the frequency (or a chronological description) of the

epithets. Even viewing the evidence in the light most favorable

to Lindsey, we cannot assume that the epithets were routine in

nature. Further, Lindsey provides no evidence to suggest that

these racial slurs, combined with Chevron’s decision not to visit

9 Lindsey or send him flowers when at the hospital and the hanging

of the flags, either unreasonably interfered with his work

performance or caused him to feel physically threatened or

humiliated.

In sum, no reasonable jury could return a verdict in favor

of Lindsey on the ground that he experienced harassment that was

sufficiently severe and pervasive. Accordingly, we again find it

unnecessary to undergo the burden shifting analysis because

Lindsey failed to establish his prima facie case for a racially

hostile work environment. Summary judgment as to this particular

claim was proper.

IV. LINDSEY’S DISABILITY DISCRIMINATION CLAIM

Lindsey also argues that Chevron violated the ADA when it

failed to accommodate his alleged disability. A plaintiff cannot

assert that his employer is required to make reasonable

accommodations to his physical or mental limitation until he

satisfies the test for disability discrimination. See, e.g.,

Burch v. City of Nacogdoches,

(5th Cir. 1999).

The first element of a prima facie case for disability

discrimination is that the plaintiff was a qualifiedly disabled

employee. E.g., Dupre v. Charter Behav. Health Sys. of

Lafayette, Inc.,

(5th Cir. 2001). Hence, the

threshold issue in this case is whether Lindsey is considered

disabled under the ADA.

10 To qualify as disabled, Lindsey must demonstrate that: (1)

he has a physical or mental impairment that substantially limited

one or more of his major life activities; (2) he has a record of

such impairment; or (3) he is regarded as having such an

impairment. E.g., Aldrup v. Caldera,

(5th Cir.

2001). The Supreme Court has defined major life activity as

those activities that are “of central importance to daily life.”

Toyota Motor Mfg., Ky., Inc. v. Williams,

, - - -,

(2002).2 A substantial limitation on such

life activities would be a limitation that is “considerable” or

“to a large degree.”

On appeal, Lindsey asserts that Chevron failed to move

expeditiously in providing him the necessary equipment that would

assist him at work. Such delay in accommodation, he continues,

violates the ADA. Chevron argues that Lindsey cannot satisfy his

burden that he was terminated because of his alleged disability.

Chevron also agrees with the district court’s determination that

there was no evidence to support the contention that Lindsey’s

heart condition, depression or diabetes substantially limited or

impaired any of his major life activities.

Simply put, Lindsey’s ADA accommodation claim falls short

because he failed to adduce evidence suggesting that he was

2 Examples of major life activities include speaking, breathing, learning, and working. E.g., Aldrup,

.

11 qualifiedly disabled. The summary judgment record provides no

indication of whether Lindsey’s heart condition, depression or

diabetes substantially limited one or more major life activity.

Lindsey has never provided evidence indicating that his medical

conditions ever came close to limiting his major life activities

considerably or to a large degree.3 Moreover, Lindsey has never

contended that he had a record of such an impairment or that

Chevron regarded him as having such an impairment, preventing him

from establishing disability through these methods.

Because Lindsey could not raise a genuine issue of material

fact as to the first element of a prima facie case for disability

discrimination, he is precluded from claiming that Chevron was

required to make reasonable accommodations to his physical

condition. Summary judgment was appropriate.4

V. LINDSEY’S FMLA CLAIM

Lindsey also claims that Chevron violated the terms of the

FMLA. Under the FMLA, an “eligible” employee is entitled to up

3 In his deposition testimony, Lindsey stated that after his pacemaker surgery, he had no trouble walking, seeing, hearing, caring for himself, driving, and lifting objects. In fact, his doctor cleared him for work a month after surgery. 4 While an in-depth discussion of the other elements of his prima facie case would only be superfluous, it is also worth observing that Lindsey failed to raise a genuine issue of material fact as to whether he was none-the-less qualified to perform his job at Chevron and he was replaced by or treated less favorably than non-disabled employees

12 to twelve weeks leave when a serious health condition renders the

employee unable to perform the functions of his or her position.

E.g., Seaman v. CSPH, Inc.,

(5th Cir. 1999).5 A

“serious health condition” is defined as “an illness, injury,

impairment, or physical or mental condition that involves—(A)

inpatient care in a hospital, hospice, or residential medical

care facility; or (B) continuing treatment by a health care

provider.” E.g., Price v. Marathon Cheese Corp.,

(5th Cir. 1997).

Specifically, Lindsey asserts that an FMLA violation

occurred when Chevron gave him an incorrect form. He also

contends that his thirty-four days of sick leave were allowed

under the FMLA, which expressly provides a full sixty days of

leave. Because he did not take leave time beyond that which was

statutorily-allotted, Lindsey claims his termination upon his

request for FMLA leave was unlawful. Chevron reasons that the

FMLA is available only to employees who require leave due to

serious health conditions and Lindsey offers no proof of a such a

condition. Similarly, the district court found that because

there was no documentation whatsoever relating to his medical

condition or care at the time of his termination, Lindsey could

5 The FMLA also provides leave when an employee needs to care for a newborn child, place a child for adoption or care for an adopted child, or care for family member with serious medical condition. None of these circumstances arises in the instant case, so consideration of them is unnecessary.

13 not show that he endured a serious medical condition for which

leave was not granted.

We agree with the district court’s assessment of Lindsey’s

FMLA claim. To survive summary judgment, Lindsey must first

raise a genuine issue of material fact that he was eligible for

FMLA-protected leave. Lindsey’s claim boils down to the

contention that Chevron retaliated against him when it terminated

him upon his request for leave in March 2000.6 The timing and

justification for the requested leave, not the number of days of

leave not taken, are critical here. Although the summary

judgment record suggests that, in the past, Lindsey’s medical

treatments may have constituted serious medical conditions

warranting FMLA-protected leave, there is no evidence in the

record indicating that the leave requested in March 2000 was

justified by a serious medical condition. Because Lindsey does

not assert such a justification, he is not be eligible for

protection under the FMLA for the leave request at issue. Hence,

Lindsey cannot raise a genuine issue of material fact as to

whether Chevron violated his rights under the FMLA. Summary

judgment was appropriate.

6 Contrary to Lindsey’s assertion, there is no legal authority to support the claim that distribution of an incorrect form violates the FMLA.

14 VI. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court granting summary judgment to Chevron on all

asserted claims.

15