     Case: 19-30561      Document: 00515324862         Page: 1    Date Filed: 02/27/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                    No. 19-30561
                                                                               FILED
                                                                        February 27, 2020
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
DWAYNE LUMAR,

              Plaintiff - Appellant

v.

MONSANTO COMPANY,

              Defendant - Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:17-CV-13373


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Dwayne Lumar sued his employer, Monsanto Company, pursuant to the
Americans with Disabilities Act, alleging Monsanto discriminated against him
and subjected him to a hostile work environment because he is morbidly obese.
The magistrate judge issued a carefully detailed opinion and granted summary
judgment in Monsanto’s favor. Lumar appeals and we need only address a
threshold issue in order to affirm.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                       No. 19-30561
       We review the grant of summary judgment de novo, applying the same
standard as the district court. Tango Transp. v. Healthcare Fin. Servs. LLC,
322 F.3d 888, 890 (5th Cir. 2003). Summary judgment is appropriate if no
genuine dispute of material fact exists, and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c).
       Lumar remains an employee of Monsanto and has received several
promotions. Still, he contends Monsanto violated the ADA by “commit[ing]
acts of discrimination against [Lumar] and creat[ing] a hostile work
environment due to his morbid obesity.” Monsanto contends the district court
properly granted summary judgment on Lumar’s ADA discrimination and
hostile work environment claims because, inter alia, Lumar failed to show that
his obesity qualifies as a disability.
       Lumar’s discrimination and hostile work environment claims both
require a prima facie showing that Lumar is disabled. See Rodriquez v. Eli
Lilly & Co., 820 F.3d 759, 765 (5th Cir. 2016) (discrimination); see also Flowers
v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 235–36 (5th Cir. 2001) (hostile
work environment). The ADA defines “disability” as “a physical or mental
impairment that substantially limits one or more major life activities of such
individual.” 42 U.S.C. § 12102(1)(A). Lumar insists that his morbid obesity
qualifies as a disability. 1 But even assuming that Lumar’s obesity is a physical
impairment, there is no evidence that his weight limits his life activities in any



       1 Lumar alternatively contends that, even if his obesity does not qualify as an actual
disability, Monsanto regarded him as being disabled. But, as the lower court found, Lumar’s
regarded-as theory of recovery was not administratively exhausted and was asserted for the
first time in response to Monsanto’s motion for summary judgment. We therefore decline to
consider it. See Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005)
(“A claim which is not raised in the complaint but, rather, is raised only in response to a
motion for summary judgment is not properly before the court.” (citing Greenberg v.
Crossroads Sys, Inc., 364 F.3d 657, 669 (5th Cir. 2004))).

                                              2
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                                       No. 19-30561
way, and Lumar testified emphatically that it does not. Thus, Lumar has not
shown that he suffers from a disability, and summary judgment was proper on
Lumar’s ADA discrimination and hostile work environment claims. See Tucker
v. Unitech Training Acad., Inc., 783 F. App’x 397, 399–400 (5th Cir. 2019). 2
       Accordingly, the judgement of the district court is AFFIRMED.




       2  Although Tucker is an unpublished opinion and is not therefore binding on the court,
it is useful evidence of the court’s treatment of this issue.
                                              3
