Edwards v. Wal-Mart Stores Inc

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 00-30390
Summary Calendar
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DAVID EDWARDS,
Plaintiff-Appellant,
VERSUS
WAL-MART STORES, INC.,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Louisiana
(99-CV-11)
_________________________
January 8, 2001
Before JOLLY, SMITH, and DENNIS, Circuit
Judges.
JERRY E. SMITH, Circuit Judge:*
David Edwards appeals a summary
judgment in a suit against his employer under
the Americans with Disabilities Act (“ADA”).
Finding no reversible error, we affirm.
I.
Edwards, who can neither hear nor speak
but can communicate through sign language,
finger spelling, and written notes, worked as a
merchandise stocker for Wal-Mart Stores, Inc.
(“Wal-Mart”). He has a high school
equivalency diploma from the Louisiana
* 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determined that this opinion should not be
published and is not precedent except under the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.

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School for the Deaf and a degree from a junior
college. He worked at Wal-Mart for four
years and held a second job at Pizza Hut for
three years using these limited communication
skills.
Edwards’s managers at Wal-Mart learned
some sign language, and the assistant manager
carried a notepad for communicating with him.
Edwards never asked for or required a
certified interpreter; although he had no
difficulty performing assigned tasks, he
occasionally received reprimands for sleeping
past his break.
Wal-Mart terminated Edwards for stealing
a root beer from the stock room. A co-worker
reported that Edwards had removed a can of
root beer from the inventory pallet, opened the
can, and took a drink. The night shift manager
reviewed a videotape that allegedly confirmed
the story. She then went to the receiving area
and found the open root beer but no other
beverage cans. She reported the incident to
the assistant manager, who reviewed the vid-
eotape and interviewed the worker who ini-
tially had reported the theft.
The assistant manager met with Edwards,
discussed the incident, and terminated him, in
accordance with company policy, for
unauthorized removal of property. At that
meeting, Edwards communicated with his
superiors in his usual fashionSSthrough finger
spelling, sign language, and written notes. A
co-worker who knew some sign language
assisted Edwards.
Edwards first denied the incident, then tried
to explain that he had purchased his own
drink, a 7-Up. He said he had been ill that
night and had taken medication; if he had tak-
en a root beer, then he had made a mistake.
He further suggested that a co-worker had re-
ceived permission to drink a damaged
beverage without discipline. Edwards did not
see the videotape, because company policy
forbade it.
II.
Edwards sued for violation of the ADA for
failure to provide him with reasonable
accommodations for his disability and by
discharging him because of his disability. The
district court granted summary judgment for
Wal-Mart on the basis that Edwards had failed
to make any showing of discrimination.
III.
Summary judgment is appropriate “if the
pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any,” when
viewed in the light most favorable to the
nonmoving party, “show that there is no
genuine issue as to any material fact and that
the moving party is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(c).1 We
review a summary judgment de novo, using the
same standards as did the district court. Allen
v. Rapides Parish Sch. Bd., 204 F.3d 619, 621
(5th Cir. 2000). We also review de novo the
district court’s interpretation of the ADA.
Lara v. Cinemark USA, Inc., 207 F.3d 783,
786 (5th Cir.), cert. denied, 121 S. Ct. 341
(2000).
IV.
Edwards contends the court erred in
deciding that Wal-Mart had no obligation to
1 See also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).

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provide an interpreter.2 The ADA requires
e mp lo ye r s t o m a k e r e a s o n a b l e
accommodations for a qualified individual with
a disability, defined as a person “who, with or
without reasonable accommodation, can
perform the essential functions of the
employment position . . . .” 42 U.S.C.
§ 12111(8). The ADA recognizes “the
provision of qualified readers or interpreters”
as a reasonable accommodation. Id. §
12111(9)(B).
Edwards, however, did not ask for a
certified interpreter.3 “In general . . . it is the
responsibility of the individual with the
disability to inform the employer that an
accommodation is needed. . . . If the
employee fails to request an accommodation,
the employer cannot be held liable for failing
to provide one.” Taylor v. Principal Fin.
Group, Inc., 93 F.3d 155, 165 (5th Cir. 1996)
(quoting 29 C.F.R. § 1630.9, App. (1995)).4
Edwards contends that when the employer
knows the employee has a disability, the em-
ployer should initiate an interactive process to
develop a reasonable accommodation.
Although the employer does have a good faith
obligation to engage in this process, the
employer must have adequate notice that the
employee needs additional assistance.5 An em-
ployer “should do what it can to help” when an
“employee may need an accommodation but
doesn’t know how to ask for it,” Bultemeyer
v. Fort Wayne Cmty. Schs., 100 F.3d 1281,
1285 (7th Cir. 1996), but even in that case, the
employee had his doctor send a letter to his
employer requesting an accommodation. Id.
Thus, an employer need not divine the needs
of the employee absent any affirmative signal
from that employee.6
Neither party suggests that Edwards could
not communicate to Wal-Mart that he desired
2 Edwards also contends that Wal-Mart’s
refusal to show him the video constituted a failure
to make a reasonable accommodation. He did not
raise this claim before the district court; thus, he
has waived it. See Abbott v. Equity Group, Inc.,
2 F.3d 613, 627 n.50 (5th Cir. 1993); Jernigan v.
Collins, 980 F.2d 292, 297 n.1 (5th Cir. 1992).
3 Although Edwards stated that he needed an
interpreter for “emergency situations” such as store
meetings, a co-worker who knew sign language
would interpret for him, or the assistant manager
would write notes to him about these meetings.
Edwards had this assistance at the termination
meeting and admitted that he had not requested a
certified interpreter for that meeting.
4 See also Loulseged v. Akzo Nobel, Inc., 178
F.3d 731, 736 & n.4 (5th Cir. 1999) (“According-
ly, the burden is on the employee to request an
(continued...)
4(...continued)
accommodation.”); Burch v. Coca-Cola Co., 119
F.3d 305, 319-20 (5th Cir. 1997) (holding that
employee’s claim that employer had denied a rea-
sonable accommodation was not actionable be-
cause he had not requested an accommodation
before termination).
5 See Taylor v. Phoenixville Sch. Dist., 184
F.3d 296, 313 (3d Cir. 1999) (noting that “he em-
ployer must know of both the disability and the
employee’s desire for accommodations”)
(emphasis added).
6 Indeed, Loulseged further distinguishes Bulte-
meyer by noting that the employee in that case had
a mental disability. That court noted that the
mental disability may affect the employee’s ability
to understand that he needs an accommodation but
that “[w]hen, as here, an employee’s disability is
purely physical, the employee will generally be in
the best position to determine her own needs and
capacities.” Loulseged, 178 F.3d at 736 n.5.

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a certified interpreter. Wal-Mart’s
management recognized the need for
interpretive help and brought in an employee
with rudimentary sign language skills who
usually interpreted for Edwards at company
meetings. The manager additionally used
written notes, just as he had done in the past,
to explain to Edwards that he was being
terminated. The fact that Edwards used these
written notes to tell the manager his side of the
story indicates that he had the ability to
request additional assistance had he needed it.7
Furthermore, Edwards has not established
that he ever before had requested
accommodations. Even though he believed he
had asked for an interpreter for company
meetings on several occasions, he could not
remember any details to substantiate that
assertion. “A wrongful termination claim
under the ADA is not properly analyzed under
a reasonable accommodation theory unless an
employer is shown to have terminated a
qualified individual with a disability in order to
avoid accommodating that employee’s
impairments at the workplace.” Burch, 119
F.3d at 314. Edwards has not even hinted that
Wal-Mart discharged him to avoid providing
reasonable accommodations. Therefore, the
district court correctly concluded that Wal-
Mart had no duty under the ADA to provide a
certified interpreter at the termination meeting.
V.
Edwards avers that the court erred in
finding that he had made no prima facie case
that Wal-Mart discharged him because of his
disability. The ADA prohibits employers from
discriminating “against a qualified individual
with a disability” on the basis of that disability.
42 U.S.C. § 12112(a). We have recognized
two methods of establishing a prima facie case
of discrimination under the ADA: One uses
direct evidence, the other indirect.
A.
To establish a prima facie case via direct
evidence, Edwards “must show: (1) that he has
a disability; (2) that he was qualified for the
job; and (3) that he was subject to an adverse
employment decision because of his disability.”
Ivy v. Jones, 192 F.3d 514, 516 (5th Cir.
1999). The parties do not contest that
Edwards satisfies each of these requirements
or that he has not introduced any direct
evidence to connect that employment decision
to intentional discrimination on the basis of his
disability; thus, he has not made out a prima
facie case under the third prong of the test.
B.
A plaintiff may use the indirect method of
proof set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973). Daigle
v. Liberty Life Ins. Co., 70 F.3d 394, 396 (5th
Cir. 1995). Edwards must show that he
(1) suffers from a disability; (2) is qualified for
the job; (3) was subject to an adverse em-
ployment action; and (4) was replaced by a
non-disabled person or was treated less
favorably than were non-disabled employees.
Id. The parties do not dispute that Edwards
was replaced by a hearing, speaking individual,
so he has made a prima facie case under
McDonnell Douglas.
Having done so, Edwards is entitled to a
presumption of discrimination that the
7 Edwards notes that the night shift manager
asked the assistant manager to bring in an
interpreter who was fluent in sign language at the
termination meeting. Because Edwards must
affirmatively indicate a need for additional
assistance, this fact has no relevance.

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employer must rebut by “articulat[ing] some
legitimate, non-discriminatory reason” for the
employment action. McDonnell Douglas, 411
U.S. at 802. The employer need not prove the
legitimate reason; it need only put forth
evidence; the burden of proving intentional
discrimination “remains at all times with the
plaintiff.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 507 (1993) (quoting Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981)).
Wal-Mart has produced evidence that it
terminated Edwards for violating company
policy, so “the presumption raised by the pri-
ma facie case is rebutted and drops from the
case.” Id. (quoting Burdine, 450 U.S. at 255
& n.10). At this point, Edwards must show
that the pro ffered reason is pretextual or un-
worthy of credence. Burdine, 450 U.S.at 253,
256. To show pretext, he may use evidence
establishing his prima facie case, Reeves v.
Sanderson Plumbing Prods., 530 U.S. 133,
___, 120 S. Ct. 2097, 2106 (2000), but he still
must prove that Wal-Mart intended to
discriminate on the basis of his disability.
Edwards has established no nexus between
termination and disability. He stated in
deposition that he did not know whether the
company discriminated against him based on
his disability, on his race, or both. He further
admits that his manager would not terminate
him absent plain evidence that he had stolen
company property, and he has not produced
any evidence to contradict the testimony of the
eyewitnesses and those who viewed the
videotape that he committed a terminable
offense under a company policy applicable to
all employees.
Indeed, Edwards’s testi mony was
contradictory: He first denied the incident,
then admitted he mistook the root beer for his
own 7-Up. Although he suggests that Wal-
Mart’s refusal to allow him to view the
videotape evidences a discriminatory intent,
Wal-Mart policy prohibits any employee from
viewing such a videotape.
Edwards asks us to believe that the fact that
Wal-Mart lost the videotape between his ter-
mination and his lawsuit suggests pretext, but
multiple witnesses testified to the contents of
the videotape.8 Edwards portrays the slight
variations in the testimony of these witnesses
as additional evidence of pretext, but each wit-
ness stated that Edwards took a can of soda
from the pallet and drank the contents.
Despite the alleged evidence of
discrimination, Edwards makes no reference to
any negative or offensive comments related to
his disability, to a pattern of discrimination
against the disabled at the store, or indeed to
any other negative encounter at Wal-Mart
related to his disability in the four years he
worked there. Moreover, Edwards
undermines his own argument by testifying
that management learned some sign language
to communicate with him. He admitted that
the assistant manager who terminated him
supported the deaf community. Furthermore,
the same manager who terminated him also
hired him; thus, Wal-Mart may receive the
8 Edwards argues for the first time on appeal
that the loss of the videotape constitutes spoilation
of the evidence. Because he did not raise this point
before the district court, he has waived it. See,
e.g., Estate of Martineau v. Arco Chem. Co., 203
F.3d 904, 913 (5th Cir. 2000) (citing Vaughner v.
Pulito, 804 F.2d 873, 877 (5th Cir. 1986) (noting
that if a party fails to assert a legal reason why
summary judgment should not be granted, he
waives the right to assert it on appeal)).

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benefit of an inferenceSSthe “same actor”
inferenceSSthat discrimination did not
motivate the termination. See Brown v. CSC
Logic, Inc., 82 F.3d 651, 658 (5th Cir. 1996).
Therefore, Edwards has failed to prove in-
tentional discrimination, even when all the
facts are construed in his favor. A district
court may properly award summary judgment
when
a party . . . fails to make a showing
sufficient to establish the existence of an
element essential to that party’s case,
and on which that party will bear the
burden of proof at trial. In such a
situation, there can be ‘no genuine issue
as to any material fact,’ since a complete
failure of proof concerning an essential
element of the nonmoving party’s case
necessarily renders all other facts
immaterial.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986).
Edwards has not presented any issue of fact
material to the question of intentional
discrimination. He disputes only Wal-Mart’s
evidence that he stoleSSa fact more relevant to
whether Wal-Mart terminated him without
sufficient proof than to intentional dis-
crimination. Edwards perhaps had more
difficulty communicating his side of the story
than would a hearing and speaking person, but
he has offered no evidence that Wal-Mart
treated him differently from any other
employee.
In sum, Edwards has not connected the ter-
mination to an intent to discriminate on the ba-
sis of disability. As the district court
perceptively stated, “this court finds not a
single shred of evidence to support Edwards’
claim that Wal-Mart terminated him because of
his disabilities. There is simply no evidence of
discriminatory intent or motive on the part of
Wal-Mart in this case.”
AFFIRMED.

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