     Case: 19-30066      Document: 00515104112         Page: 1    Date Filed: 09/04/2019




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


                                    No. 19-30066                             FILED
                                                                     September 4, 2019
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
ANDREA TUCKER,

              Plaintiff - Appellant

v.

UNITECH TRAINING ACADEMY, INCORPORATED, erroneously named
Unitech Training Academy; MICHELLE HAMMOTHE, Officially,
erroneously referred to as Michelle Hammouche; ALANA SARRAZIN,
Officially, erroneously referred to as Alana Farrazin,

              Defendants - Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-7133


Before KING, DUNCAN, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       After her employment was terminated for alleged poor performance,
Andrea Tucker sued her former employer and several of its employees. The
district court entered summary judgment against Tucker on all claims. Tucker
now appeals. For the following reasons, we 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30066
                                        I.
      Andrea Tucker worked as an Administrative Medical Assistant
Instructor at Unitech Training Academy, Inc. (“Unitech”). When she was hired,
she weighed approximately 392 pounds. Although she informed her
interviewers that she was scheduled to have gastric bypass surgery, she did
not inform anyone at Unitech that she was disabled or that she needed a
special accommodation. Tucker had the gastric bypass surgery and returned
to work shortly thereafter.
      Later that year, Tucker’s classroom printer ran out of ink. Tucker
contends that she was told by Unitech’s administration that she would have to
use a printer on another floor because she could no longer get ink refills for her
classroom printer. Tucker testified that, on at least two occasions, the elevator
was broken so she was forced to take the stairs to the printer. Although on one
occasion she complained to the campus director, Defendant Michelle
Hammothe, that taking the stairs caused her physical discomfort, Tucker did
not request an accommodation. Nor did Tucker inform any other Unitech
administrator that she was unable to take the stairs.
      Tucker alleges that she then reached out to Unitech’s IT department.
Through these conversations, Tucker alleges, she discovered a “computer
glitch[]” that would allow students to graduate without completing certain
required coursework. Tucker further alleges that at a later date, an unnamed
“corporate officer” visited Tucker’s classroom with Hammothe. When Tucker
told the corporate officer that she did not have ink for her classroom printer,
the corporate officer told Tucker that she “would have all the ink that [she]
needed” and ordered Hammothe to “immediately order six packs of ink.”
      About a month later, Hammothe terminated Tucker’s employment for
“poor classroom management [and] failure to perform required tasks after
multiple warnings.” Tucker alleges that she was terminated because she
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                                 No. 19-30066
reported the misuse of funds to Unitech’s corporate office. Although not
expressly stated, Tucker seems to imply that Hammothe, working in concert
with Defendant Alana Sarrazin, Unitech’s director of education, used funds
that had been appropriated for ink for other purposes.
      Tucker brought suit against Unitech, Hammothe, and Sarrazin, alleging
causes of action under 42 U.S.C. §§ 1983 and 1986, Title VII of the Civil Rights
Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), and
Louisiana state law. Hammothe and Sarrazin moved for summary judgment.
The district court granted the motion and dismissed Tucker’s claims against
Hammothe and Sarrazin, reasoning that Tucker failed to oppose the motion
and the motion was meritorious. The district court also granted Unitech’s
subsequent motion for summary judgment on the merits. Tucker appeals.
                                       II.
      We review a district court’s grant of summary judgment de novo. Griffin
v. UPS, 661 F.3d 216, 221 (5th Cir. 2011). We will affirm a district court’s
decision to grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing a motion for summary
judgment, we “view[] all evidence in the light most favorable to the non-moving
party and draw[] all reasonable inferences in that party’s favor.” Griffin, 661
F.3d at 221.
      As an initial matter, Tucker does not address on appeal the district
court’s dismissal of her § 1983, § 1986, Title VII discrimination, or intentional
infliction of emotional distress claims. Accordingly, these claims are waived.
United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that
asserts an argument on appeal, but fails to adequately brief it, is deemed to
have waived it.” (quoting Knatt v. Hosp. Serv. Dist. No. 1, 327 F. App’x 472,
483 (5th Cir. 2009) (unpublished))); see also Fed. R. App. P. 28(a)(8)(A). As for
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                                       No. 19-30066
the arguments that Tucker has appropriately raised on appeal, we find that
the district court properly dismissed Tucker’s Title VII retaliation, ADA
discrimination and retaliation, and Louisiana wrongful-termination claims.
       Tucker’s ADA disability-discrimination claim fails because she has not
shown that she is disabled, as is required to demonstrate a prima facie case.
See EEOC v. LHC Grp., Inc., 773 F.3d 688, 695 (5th Cir. 2014). Relevant here,
the ADA defines “disability” as “a physical or mental impairment that
substantially limits one or more major life activities of such individual.” 1 42
U.S.C. § 12102(1)(A). Even accepting that Tucker’s weight was a physical
impairment, she has not shown that it substantially limited a major life
activity. At most, the evidence presented at summary judgment shows that
Tucker’s weight caused her to have to take “breathing break[s]” while climbing
stairs. This is insufficient to demonstrate that Tucker is disabled. See Hale v.
King, 642 F.3d 492, 500 (5th Cir. 2011) (“[T]o be substantially limited means
to be unable to perform a major life activity that the average person in the
general population can perform, or to be significantly restricted in the ability
to perform it.” (alteration in original) (quoting EEOC v. Chevron Phillips
Chem. Co., 570 F.3d 606, 614 (5th Cir. 2009))); see also 29 C.F.R. § 1630.2(j).
Although Tucker argues on appeal that her gastric bypass surgery “caused
problems with her respiratory system and bowel,” she does not point to any
evidence in the record to support this allegation. In contrast, defendants
presented evidence that Tucker was not disabled, including her own testimony
that she was “never limited” by her weight. Thus, Tucker has not demonstrated
that her obesity substantially limits a major life activity, and her disability
discrimination claim must fail.


       1 Tucker has not shown, nor does she argue, that she had a record of impairment or
that she was regarded as having an impairment that substantially limits a major life activity.
See § 12102(1)(B), (C).
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       Tucker’s Title VII and ADA retaliation claims are also without merit. To
establish a prima facie case of retaliation under Title VII or the ADA, Tucker
must show “(1) she participated in an activity protected under the statute; (2)
her employer took an adverse employment action against her; and (3) a causal
connection exists between the protected activity and the adverse action.” Feist
v. La., Dep’t of Justice, Office of the Att’y Gen., 730 F.3d 450, 454 (5th Cir. 2013).
Tucker argues that she engaged in a protected activity when she complained
about the lack of ink in her classroom printer and when she reported the
misuse of funds. She also suggests that she was fired for uncovering a
“computer glitch[].” These actions are not protected activities under Title VII.
See 42 U.S.C. § 2000e-3(a) (prohibiting retaliation for opposing “any practice
made an unlawful employment practice by this subchapter” or for participating
in proceedings “under this subchapter”); Alkhawaldeh v. Dow Chem. Co., 851
F.3d 422, 428 (5th Cir. 2017) (describing “protected activity” as “an activity
protected by Title VII”). Although requesting a reasonable accommodation may
constitute engaging in a protected activity under the ADA, see, e.g., Tabatchnik
v. Cont’l Airlines, 262 F. App’x 674, 676 (5th Cir. 2008) (unpublished), Tucker
never made such a request. 2 Thus, Tucker’s Title VII and ADA retaliation
claims fail on the first prong.
       Tucker also argues that the district court erred by dismissing her
Louisiana wrongful-termination claim. Tucker did not have a written contract



       2 Tucker testified that, on one occasion, she told Hammothe that climbing the stairs
to retrieve ink caused her physical discomfort. A general complaint of physical discomfort is
not enough to put an employer on notice that an employee needs an accommodation. See
Griffin, 661 F.3d at 224 (“This court has recognized that ‘where the disability, resulting
limitations, and necessary reasonable accommodations, are not open, obvious, and apparent
to the employer, the initial burden rests primarily upon the employee . . . to specifically
identify the disability and resulting limitations, and to suggest the reasonable
accommodations.’” (omission in original) (quoting Chevron Phillips Chem. Co., 570 F.3d at
621)).
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of employment, nor did she agree to a specific period of employment. Thus,
under Louisiana law, her employment was terminable at will, as long as her
termination did not otherwise violate federal or state law. See Quebedeaux v.
Dow Chem. Co., 820 So. 2d 542, 545 (La. 2002). As discussed above, Tucker has
not shown that defendants violated federal or state law by terminating her
employment. Therefore, Unitech did not wrongfully terminate Tucker, and the
district court properly entered summary judgment in the defendants’ favor.
      Tucker also accuses the defendants of falsifying evidence. Her
unsupported allegations are insufficient to establish a fact issue warranting
the denial of summary judgment. Relatedly, her request for relief under
Federal Rule of Civil Procedure 60(b)(3) for “fraud on the court” is procedurally
improper because Tucker did not move for relief under Rule 60 in the district
court. Finally, Tucker argues that she has been denied her Seventh
Amendment right to a jury. But “[a] grant of summary judgment does not
violate the Seventh Amendment right to a jury trial. This right exists only with
respect to disputed issues of fact.” Roberson v. McDonald Transit Assocs., Inc.,
574 F. App’x 323, 327 n.5 (5th Cir. 2014) (unpublished) (alteration in original)
(quoting Harris v. Interstate Brands Corp., 348 F.3d 761, 762 (8th Cir. 2003)).
                                      III.
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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