                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                               No. 06-10024                     JULY 17, 2006
                           Non-Argument Calendar              THOMAS K. KAHN
                                                                   CLERK
                         ________________________

                    D. C. Docket No. 04-01955-CV-RLV-1

DENNIS MICHAEL SMITH,


                                                          Plaintiff-Appellant,

                                     versus

FEDERAL EXPRESS CORPORATION,

                                                          Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                (July 17, 2006)

Before TJOFLAT, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

     Dennis Michael Smith, proceeding pro se, appeals the district court’s grant
of summary judgment in favor of Federal Express Corp. in his employment

discrimination action. After a thorough review of the record, we affirm.

      Smith filed a counseled complaint against Federal Express alleging that his

employer failed to meet his request for a reasonable accommodation under the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12111, and retaliated

against him for making the request and filing a complaint with the EEOC. Federal

Express moved for summary judgment, asserting, inter alia, that Smith was not

disabled, as he did not have an impairment that substantially limited a major life

activity and it never regarded Smith as disabled, and Smith could not establish a

retaliation claim, as there was no causal connection between his request and his

termination.

      The district court granted summary judgment, finding that (1) Smith was not

disabled because (a) he did not have an impairment that substantially limited a

major life activity, as he had no work restrictions and there were other jobs he

could perform, and (b) Smith was not regarded as disabled; and (2) Smith could

not establish retaliation because, even assuming that he satisfied the prima facie

case, Smith failed to show that Federal Express’s legitimate, non-discriminatory

reasons were a pretext for discrimination in light of his disciplinary history and the

fact that he missed two consecutive work shifts. Smith moved for reconsideration



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or rehearing, which the court denied as untimely and without merit. Smith now

appeals.

      On appeal, Smith argues that the district court ignored evidence that Federal

Express retaliated against him for invoking his ADA rights, and that the court

incorrectly determined that he was not disabled under the ADA, as he contends he

had a record of disability.

      We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the party opposing the motion. Cruz v.

Publix Super Mkts., Inc., 428 F.3d 1379, 1382 (11th Cir. 2005). Summary

judgment is appropriate if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show 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); Eberhardt v. Waters, 901 F.2d

1578, 1580 (11th Cir. 1990). Once the party seeking summary judgment meets its

burden of showing the absence of a genuine issue of material fact, the burden shifts

to the non-moving party to submit sufficient evidence to rebut the showing with

affidavits or other relevant and admissible evidence. Avirgan v. Hull, 932 F.2d

1572, 1577 (11th Cir. 1991). Mere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion. Ellis v.



                                           3
England, 432 F.3d 1321, 1326 (11th Cir. 2005). “Moreover, statements in

affidavits that are based, in part, upon information and belief, cannot raise genuine

issues of fact, and thus also cannot defeat a motion for summary judgment.” Id.

(citation omitted).

      The ADA forbids covered employers from discriminating “against a

qualified individual with a disability because of the disability of such individual in

regard to . . . discharge of employees.” 42 U.S.C. § 12112(a) (2000). To establish

a prima facie case of discrimination under the ADA, a plaintiff must demonstrate

“that (1) he has a disability, (2) he is a ‘qualified individual,’ which is to say, able

to perform the essential functions of the employment position that he holds or

seeks with or without reasonable accommodation, and (3) the defendant unlawfully

discriminated against him because of the disability.” D’Angelo v. ConAgra Foods,

Inc., 422 F.3d 1220, 1226 (11th Cir. 2005). The same burden-shifting analysis

under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36

L.Ed.2d 668 (1973), applicable to other employment discrimination suits applies to

ADA claims. Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226 (11th

Cir. 1999).

      A. Discrimination

      Under the statute, disability is defined as “(A) a physical or mental



                                            4
impairment that substantially limits one or more of the major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having

such an impairment.” 42 U.S.C. § 12102(2).

       As an initial matter, the only issue properly before this court is whether

Smith established that he had a physical impairment that substantially limits one or

more of the major life activities.1 Smith does not challenge the district court’s

decision that he was not “regarded as” disabled, and, therefore, he has abandoned

that claim. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).

Moreover, Smith argues for the first time on appeal that he had a “record of”

disability, and, therefore, we need not consider that argument. Narey v. Dean, 32

F.3d 1521, 1526-27 (11th Cir. 1994).

       This court has held that work can be treated as a major life activity. See,

e.g., Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1216 & n.2 (11th Cir. 2004).

According to the Supreme Court, “[w]hen the major life activity under

consideration is that of working, the statutory phrase ‘substantially limits’ requires,

at a minimum, that plaintiffs allege they are unable to work in a broad class of




       1
          A physical impairment is “[a]ny physiological disorder, or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body systems: . . .
cardiovascular.” 29 U.S.C. § 1630.2(h)(1). Arguably, Smith’s bypass and subsequent cardiac
monitoring is a disorder affecting his cardiovascular system.

                                             5
jobs.”2 Sutton v. United Air Lines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 144

L.Ed.2d 450 (1999). The inability to perform a single, particular job does not

constitute a substantial limitation in the major life activity of working. Id., 527

U.S. at 492; 29 C.F.R.§ 1630.2(j)(3)(i); Stewart v. Happy Herman’s Cheshire

Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). Additionally, the inability to

work a single shift does not qualify as a disability. Colwell v. Suffolk County

Police Dept., 158 F.3d 635, 644-45 (2d Cir. 1998).

       Here, the evidence established that Smith was able to perform a wide range

of jobs, including the one for which he was hired. Smith himself testified that he

had no work restrictions, and his physician’s note indicated that Smith could work

the AM shift. Smith disputes that the note included the Sunday (or graveyard)

shift, but there is no evidence to support his assertion other than his own self-

serving statements, which cannot defeat Federal Express’s summary judgment

motion. Ellis, 432 F.3d at 1326. Moreover, the evidence established that Smith

held down another job and took classes during the relevant time period.


       2
           An impairment is “substantially limiting” when the individual is:

       (i) unable to perform a major life activity that the average person in the general
       population can perform; or (ii) significantly restricted as to the condition, manner or
       duration under which an individual can perform a particular major life activity as
       compared to the condition, manner, or duration under which the average person in
       the general population can perform that same major life activity.
29 C.F.R. § 1630.20(j)(1).

                                                 6
      Furthermore, Smith’s difficulty with the Sunday shift is likely the same for

everyone, and, therefore, should not be the basis of a disability claim. See

Rossbach v. City of Miami, 371 F.3d 1354, 1359 (11th Cir. 2004) (explaining that

allegations that were “couched in vague terms and unaccompanied by any evidence

that the described afflictions were any worse than is suffered by many adults” did

not establish substantial limits on a major life activity); Colwell, 158 F.3d at 645.

Therefore, the court properly concluded that Smith was not substantially limited in

the major life activity of work, and accordingly, was not disabled.

      B. Retaliation

      The ADA also provides that “no person shall discriminate against any

individual because such individual has opposed any act or practice made unlawful

by [the ADA] or because such individual made a charge . . . under [the ADA].” 42

U.S.C. § 12203(a). This provision creates a prohibition on retaliation under the

ADA that is similar to Title VII’s prohibition on retaliation. Stewart, 117 F.3d at

1287. To establish a prima facie case of retaliation, Smith must show that he

engaged in statutorily protected conduct; that he suffered an adverse employment

action; and that there was a causal connection between his conduct and the adverse

action. Williams v. Motorola, Inc, 303 F.3d 1284, 1291 (11th Cir. 2002).

      Assuming, as the district court did, that Smith established a prima facie case



                                           7
of retaliation, he nevertheless is not entitled to relief because he has not shown that

the legitimate, non-discriminatory reason for Federal Express’s conduct was a

pretext for discrimination.

      The evidence showed that Smith repeatedly refused to come to work and that

he had two consecutive absences without proper documentation, in violation of

Federal Express’s policies. The evidence also showed that the policies forbade

Smith from rebidding another position for a certain period of time after accepting

the AM shift. Smith knew of these policies because he had received a copy of the

employee handbook. Thus, under its policies, Federal Express had legitimate, non-

discriminatory reasons for Smith’s discharge and the disciplinary actions taken

against him. Smith has offered nothing except his own allegations to show that

this was a pretext for retaliation. Accordingly, summary judgment was proper on

this claim as well.

      For the foregoing reasons, we AFFIRM.




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