Serling v. American Airlines

*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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 3, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-10609
STEVEN A. SERLING,
Plaintiff-Appellant,
versus
AMERICAN AIRLINES, INC., a Texas Corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(4:05-CV-179)
Before KING, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Steven Serling challenges a summary judgment against his claim
for unlawful retaliatory discharge, under the Americans with
Disability Act (ADA). SUMMARY JUDGMENT AFFIRMED; TAXED COSTS
AFFIRMED IN PART AND VACATED IN PART; REMANDED.
I.
Serling began his employment with American Airlines as an
aircraft mechanic in December 1990. He was terminated on 31 July
2003.

-- 1 of 8 --

2
From September 2001 to March 2002, Serling was placed on a
six-month involuntary suspension due, in part, to a determination
by American’s medical department that he was unable to perform
safety-sensitive work. In response to this restriction, Serling
filed a disability-discrimination claim with the Equal Employment
Opportunity Commission (EEOC) in September 2001. Subsequently, in
December 2001, Serling filed a corresponding action in district
court. In March 2002, after being cleared by American’s medical
department, Serling returned to work. He settled his action
against American in February 2003.
In the years preceding his termination, Serling was cited for
a number of work-related problems. His personnel file contained 12
citations, ranging from his failure to perform simple job-related
tasks and follow company protocol, to poor hygiene. (In early
2004, for the union-related arbitration discussed infra, a neutral
arbitrator found Serling exhibited a “pattern of extremely poor
judgment ... characterized by a lack of safety and training
concerns, by many failures to follow simple instructions and
perform relatively simple mechanical tasks, and by failing to
perform when he was watched”.) Two incidents in July 2003 led to
his termination.
On 14 July, Serling improperly installed a clamp and failed to
engage a safety latch on an aircraft engine. He admitted this
mistake to his direct supervisor, Victor Buchenot, who investigated

-- 2 of 8 --

3
the incident and confirmed the error. American later deemed the
engine damaged beyond repair.
The next day, Serling committed another serious work-related
error: while attempting to unmount an aircraft engine from a
shipping stand, Serling began to remove the bolts which secured the
engine to the stand, without first attaching the engine to an
overhead hoist. (Serling again concedes he made this mistake.)
After the mistake was called to his attention, Serling stopped
working and left the area. Buchenot investigated the incident and
determined Serling committed a serious error which could have
resulted in damage to the engine. Buchenot also faulted Serling
for walking away and failing to complete his assignment.
Because of these incidents, Serling was terminated on 31 July
2003. Serling filed a grievance under the Collective Bargaining
Agreement (CBA) to contest his termination. He maintained his
mistakes were not so serious as to merit termination. Pursuant to
the CBA, the grievance was heard by American’s chief operating
officer, who denied reinstatement. Serling’s grievance was then
heard by a three-member arbitration panel on 29 January and 20
February 2004. The panel, composed of one American representative,
one union representative, and the above-referenced neutral
arbitrator, upheld the termination.
Serling filed this action in March 2005 under the ADA, 42
U.S.C. §§ 12101-12213. He claimed American terminated his

-- 3 of 8 --

4
employment in response to his having engaged in activity protected
by the ADA: his EEOC claim in September 2001 (protected activity).
In April 2006, summary judgment was awarded to American. Without
deciding whether Serling established a prima facie retaliation
claim, the court concluded: American showed, as a matter of law,
a non-retaliatory justification for terminating Serling’s
employment; and American would have terminated Serling even in the
absence of the protected activity. Costs were taxed against
Serling that May.
II.
Serling maintains the district court erred by granting summary
judgment and abused its discretion in taxing costs against him.
A.
In challenging the summary judgment, Serling contends the
district court erred: by concluding American established, as a
matter of law, it would have terminated Serling regardless of his
protected activity; and, in reaching this conclusion, improperly
relied on the arbitration panel’s decision. In the alternative,
Serling claims: he is entitled to a mixed-motive analysis of his
claim; and he met that burden by showing retaliation was a
substantial motivating factor in his termination.
A summary judgment is reviewed de novo, applying the same
standard as the district court. Rachid v. Jack in the Box, Inc.,
376 F.3d 305, 308 (5th Cir. 2004). Such judgment is proper when

-- 4 of 8 --

5
“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits ... show that
there is no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of law”. FED.
R. CIV. P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986). In reviewing a summary judgment, all justifiable
inferences are drawn in favor of the nonmovant. E.g., Bodenheimer
v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993). Concerning
the court’s admission of any evidence factually found at an
arbitration hearing, “the district court ... is vested with broad
discretion in determining the admissibility of evidence, and its
rulings on such evidentiary matters are reviewed for abuse of that
discretion”. Graef v. Chem. Leaman Corp., 106 F.3d 112, 116-117
(5th Cir. 1997); see FED. R. EVID. 103(a). “Where an arbitral
determination gives full consideration to an employee’s [statutory]
rights, a court may properly accord it great weight.” Alexander v.
Gardner-Denver Co., 415 U.S. 36, 60 n.21 (1974).
In reviewing a summary judgment against a retaliation claim,
this court applies the burden-shifting framework provided in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Serling
must establish a prima facie case for retaliation by showing: (1)
he engaged in protected activity; (2) he suffered an adverse-
employment action; and (3) a causal link existed between the
protected activity and the adverse-employment action. E.g., Long

-- 5 of 8 --

6
v. Eastfield Coll., 88 F.3d 300, 304 (5th Cir. 1996). Once the
employee establishes a prima facie retaliation claim, the burden of
production shifts to the employer who must show a legitimate, non-
retaliatory justification for its action. E.g., Machinchick v. PB
Power, Inc., 398 F.3d 345, 350 (5th Cir. 2005). The burden then
shifts back to the employee “to establish that the employer’s
permissible reason is actually a pretext for retaliation”.
Septimus v. Univ. of Houston, 399 F.3d 601, 607 (5th Cir. 2005).
Based of our review of the record, summary judgment was
proper, essentially for the reasons stated in the district court’s
April 2006 opinion, which held, inter alia: Serling “failed to
reveal a conflict in [the] substantial evidence on the ultimate
issue of retaliation”.
B.
Taxed costs of $3,176.75 against Serling were for: (1) copies
of four depositions of American witnesses; and (2) videotaping
Serling’s deposition. He contests those costs being taxed to him
but does not dispute their amount.
Under 28 U.S.C. § 1920, a party may recover fees for copies of
depositions and any other papers as long as they are necessarily
obtained for use in the case. While, “[i]tems proposed by winning
parties as costs should always be given careful scrutiny”, see
Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964), “[t]he
district court has broad discretion in taxing costs, and we will

-- 6 of 8 --

7
reverse only upon a clear showing of abuse of discretion”. Migis
v. Pearle Vision, Inc., 135 F.3d 1041, 1049 (5th Cir. 1998)
(emphasis added).
1.
Regarding the deposition copies, Serling contends American:
did not demonstrate the necessity of obtaining copies of
depositions of their own witnesses; had full knowledge of the
substance of their employees’ testimony; and did not refer to any
portion of this testimony in their summary judgment motion.
Despite Serling’s claims, the deposition copies were necessary for
American’s preparation for the summary judgement proceedings,
various pre-trial proceedings (including drafting the joint pre-
trial stipulation), and trial. Therefore, in accordance with the
“broad discretion” afforded district courts in taxing costs, we
conclude the court did not abuse its discretion in regard to the
deposition copies.
2.
The district court did err, however, in taxing costs for
American’s videotaping his deposition. As we have previously
observed, “[t]here is no provision [in 28 U.S.C. § 1920] for
videotapes of depositions”. Id. Therefore, we vacate those
videotaping costs taxed against Serling.

-- 7 of 8 --

8
III.
Accordingly, judgment against Serling is AFFIRMED; the taxed
costs for the deposition copies are AFFIRMED, but those for
videotaping Serling’s deposition are VACATED; and this matter is
REMANDED to district court.
AFFIRMED IN PART; VACATED IN PART; REMANDED

-- 8 of 8 --