Summary Calendar) KARL H. PETERSON v. City of Houston, Texas

* 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this opinion should not be published and is not precedent except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. 01-20234
(Summary Calendar)
_______________________________
KARL H. PETERSON,
Plaintiff-Appellant,
v.
CITY OF HOUSTON, TEXAS,
Defendant-Appellee.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas - Houston Division
(H-99-CV-2458)
_________________________________________________
August 20, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM*:
Plaintiff-Appellant Karl Peterson (“Peterson”) appeals the
granting of summary judgment in favor of Defendant-Appellee City of
Houston (the “City”). Peterson brought suit alleging violations of
the Americans with Disabilities Act (ADA) and the Family Medical
Leave Act (FMLA). Because we find that Peterson has failed to
establish the existence of a genuine issue of material fact as to

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either his ability to continue his employment with a reasonable
accommodation or his termination as retaliation for using FMLA
leave, we affirm.
I.
FACTS AND PROCEEDINGS
Peterson, a former curator at the City of Houston Zoo (the
“Zoo”), filed suit against the City following its termination of
his employment in April 1998. Peterson suffers from a
psychological disorder and as a result, experiences insomnia.
According to Peterson, his insomnia caused his tardiness and
absenteeism at the Zoo, which eventually led to his firing.
In 1990, Peterson was made a Curator, a high-ranking position
with supervisory responsibilities. Throughout his employment
Peterson exhibited an irregular attendance pattern marked by
tardiness and occasional absenteeism. In April 1997, he took a
leave of absence from his position because of stress. In August
1997, his psychiatrist approved his return to work. Peterson
returned to work the next month following his twenty-one week
leave. When he reported for work, he was informed by his
supervisor that he must begin arriving at 8:00 A.M. every morning.
After Peterson indicated that he could not make that starting time,
his superior allowed him to delay his arrival time until 9:00 A.M.
each day.
In January 1998, the Houston Parks and Recreation Department
issued a Policy and Procedure Directive (“Attendance Policy”)

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1 Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
3
defining the violations and repercussions of excessive absenteeism
and tardiness. Peterson’s tardiness and absenteeism nevertheless
continued in the months following the issuance of the Attendance
Policy. In accordance with the Attendance Policy terms, he was
given a seven-day disciplinary suspension. On his return to work
following his suspension, however, his attendance problems at the
Zoo continued. Pursuant to Peterson’s request, his psychiatrist
wrote a letter to the Zoo in April 1998 clarifying that Peterson’s
disorder made it difficult for him to arrive at work on time. This
letter did not specify an accommodation or arrival time that would
ameliorate Peterson’s attendance problem. Finally, in June 1998,
he was suspended indefinitely by the City.
Peterson then filed this action for violations of the ADA and
the FMLA. After initial discovery, the City moved for summary
judgment of dismissal, which the district court granted on both
claims. Peterson timely appealed.
II.
ANALYSIS
A. Standard of Review
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court.1 A motion
for summary judgment is properly granted only if there is no

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2 Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
3 Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986).
4 Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th
Cir. 1999).
5 Celotex Corp., 477 U.S. at 323.
6 Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150
(2000).
7 Id. at 151.
8 42 U.S.C. §§ 12111(8), 12112(a).
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genuine issue as to any material fact.2 An issue is material if
its resolution could affect the outcome of the action.3 In
deciding whether a fact issue has been created, the court must view
the facts and the inferences to be drawn therefrom in the light
most favorable to the nonmoving party.4
The standard for summary judgment mirrors that for judgment as
a matter of law.5 Thus, the court must review all of the evidence
in the record, but make no credibility determinations or weigh any
evidence.6 In reviewing all the evidence, the court must disregard
all evidence favorable to the moving party that the jury is not
required to believe, and should give credence to the evidence
favoring the nonmoving party as well as that evidence supporting
the moving party that is uncontradicted and unimpeached.7
B. ADA Claim
Peterson must show that he is a “qualified individual with a
disability” to succeed on his ADA claim.8 Such an individual is

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9 Id.
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one who can perform the essential functions of his job with or
without reasonable accommodation.9 The district court reasoned
that Peterson was not a qualified individual because (1) regular
attendance was an essential part of his job and (2) the evidence
demonstrates that, even with the requested accommodation, Peterson
would not be able to attend his job in a timely and regular
fashion. Such attendance on Peterson’s part was essential because
the Zoo was open to the public every day from 10:00 A.M. until 6:00
P.M., and Peterson, as a Curator, supervised keepers and was
responsible for the reptile and amphibian exhibits.
Peterson claimed that his tardiness and absenteeism resulted
from his disabling insomnia and that, with the reasonable
accommodation of a 9:30 A.M. arrival time, he would have been able
to fulfill his responsibilities. The Zoo’s failure to grant him
this accommodation and its subsequent decision to terminate him
violated the ADA, he argues.
Peterson’s attendance over the two months preceding his
termination, however, undercut his contention. His attendance
record shows many days when he arrived well past 9:30 or even 10:00
A.M. and, more importantly, many days and even weeks when Peterson
did not come to work at all. Furthermore, the April 1998 letter
from Peterson’s psychiatrist does not bolster Peterson’s claim.
The letter does not designate specific accommodations that would

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10 See Hypes v. First Commerce Corp., 134 F.3d 721 (5th Cir.
1998) (holding that regular attendance is an essential function of
most jobs and plaintiff’s requested time accommodation of arriving
to work later than scheduled would not remedy plaintiff’s tardiness
and absenteeism; therefore, plaintiff was not a qualified
individual under the ADA and summary judgment for the employer was
proper).
11 See generally 29 U.S.C. §§ 2612, 2615.
12 29 U.S.C. § 2612(a)(1)(D).
13 29 U.S.C. § 2614(a)(1).
6
permit his performance of essential job functions and does not
explain how any modification in arrival time would alleviate
Peterson’s chronic absenteeism. Hence, as the district court
correctly noted, in Peterson’s capacity as Curator, his requested
accommodation still would not have allowed him to perform the
essential functions of the job. Summary judgment was properly
granted on Peterson’s ADA claim.10
C. FMLA Claim
The FMLA ensures that qualifying employees can take up to
twelve weeks of unpaid leave per year without adverse employment
consequences.11 An eligible employee is one who suffers from a
“serious health condition that makes the employee unable to perform
the functions of the position of such employee.”12 On the
employee’s return, the employer must restore the employee to a
comparable position.13 To state a prima facie FMLA claim, the
employee must show that (1) his leave was FMLA protected, (2) an
adverse employment action occurred, and (3) the adverse action was

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14 Chaffin v. John H. Carter Co., Inc., 179 F.3d 316, 319 (5th
Cir. 1999).
15 Id. at 320.
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taken in response to his use of FMLA leave.14 If an employee
establishes a prima facie case, the employer must proffer a
legitimate, nondiscriminatory reason for the adverse action. And,
if the employer does so, the burden shifts back to the employee to
show that the employer’s reason is a pretext for discrimination.15
Here, Peterson cannot establish a prima facie case. To gain
FMLA protection, Peterson would have had to file proper
documentation and comply with employer notification requirements.
The record does not demonstrate whether Peterson properly took
these actions. More importantly, out of his twenty-one week leave
from April 1997 until September 1997, no more than twelve weeks
would be protected by the FMLA.
Assuming arguendo that Peterson’s leave, or a portion of his
leave, qualified for FMLA protection, he nevertheless must raise a
genuine issue as to the causation requirement of his prima facie
case; in other words, he must present enough evidence for a
reasonable trier of fact to conclude that the City indefinitely
suspended him because he took FMLA protected leave. Peterson has
not met this burden. His only evidence of causation is the
testimony of an assistant, employed by the City, who prepared
Peterson’s absence report for evaluation by Peterson’s superiors.
In this report, the assistant itemized Peterson’s absences from

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1996 until his indefinite suspension, including his twenty-one week
absence in the middle of 1997. As the district court correctly
noted, however, an itemized list of absences reviewed by a superior
does not, by itself, give rise to an inference of causation. In
fact, in Peterson’s Letter of Indefinite Suspension, his supervisor
documented only absences and tardiness occurring between March 30,
1998 and May 26, 1998. During that eight and one-half week period,
Peterson missed 218 hours of work —— the equivalent of more than
five weeks. Under the Attendance Policy, his work record for the
two months immediately preceding his suspension more than qualifies
Peterson for disciplinary action. Peterson presents no evidence to
suggest that his supervisors relied on anything other than that
two-month period as the basis for his suspension. Put simply, he
obviously was fired for absenteeism well in excess of any possible
FMLA leave, not for taking leave protected by the FMLA.
Accordingly, as Peterson has not raised a genuine dispute of fact
as to the cause of his indefinite suspension, he has failed to
state a viable FMLA claim.
III.
CONCLUSION
For the foregoing reasons, the district court’s grant of
summary judgment dismissing Peterson’s action is
AFFIRMED.

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