                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                                                             April 12, 2005
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk
                      ____________________

                          No. 04-10229
                      ____________________


RICARDO HINOJOSA

               Plaintiff - Appellant

v.

JOSTENS INC

               Defendant - Appellee

_________________________________________________________________

           Appeal from the United States District Court
            for the Northern District of Texas, Dallas
                        No. 3:02-CV-0391-K
_________________________________________________________________

Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit
Judges.

KING, Chief Judge:*

     Plaintiff-Appellant Ricardo Hinojosa filed suit against

Defendant-Appellee Jostens, Inc. (“Jostens”), asserting claims

for: (1) disability discrimination under the Americans with

Disabilities Act (“ADA”); (2) discriminatory discharge under the

Employment Retirement Income Security Act (“ERISA”); and (3)

breach of fiduciary duty under ERISA.   On January 22, 2004, the


     *
          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that this opinion should not be published and is not precedent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.
district court granted summary judgment in favor of Jostens and

dismissed Hinojosa’s claims with prejudice.     Hinojosa now

appeals.     Addressing each of Hinojosa’s arguments in turn, we

AFFIRM the judgment of the district court.

        We review the district court’s grant of summary judgment de

novo, applying the same standards as the district court.       Burch

v. City of Nacogdoches, 174 F.3d 615, 618 (5th Cir. 1999).

Summary judgment may be entered if the record, taken as a whole,

shows that there is no genuine issue of material fact and that

the movant is entitled to judgment as a matter of law.     FED. R.

CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986).

        We begin by addressing Hinojosa’s claim that Jostens

discriminated against him in violation of the ADA by terminating

him based on his disability and by failing to provide him with

reasonable accommodations.     The district court dismissed

Hinojosa’s ADA claim because it concluded that he did not qualify

as disabled under the ADA.1    On appeal, Hinojosa argues that

    1
          The ADA makes it unlawful for an employer to discriminate
against an employee who is a qualified individual with a disability
because of that employee’s disability.       42 U.S.C. § 12112(a)
(2000). Under the McDonnell Douglas burden-shifting framework, to
make a prima facie case of discrimination, a plaintiff must
establish that he: (1) has a disability; (2) is qualified for the
position; and (3) was discriminated against because of his
disability. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir.
2000) (applying the McDonnell Douglas burden-shifting framework to
a case brought under the ADA). If a plaintiff makes this prima
facie showing, then the burden shifts to the employer to articulate

                                   2
there is a genuine issue of fact as to whether he is disabled.

     First, Hinojosa argues that he is substantially impaired in

the major life activity of performing the manual tasks of

lifting, pushing, pulling, and holding, which makes it difficult

for him to perform activities of daily living such as putting on

and buttoning his shirt, washing his hair, doing dishes, driving

short distances, and sleeping.   Hinojosa also points to the fact

that he was diagnosed with reflex sympathetic dystrophy.     The ADA

defines a disability as, inter alia, a physical or mental

impairment that substantially limits one or more major life

activities.   42 U.S.C. § 12102(2)(2000); Sherrod v. Am. Airlines,

Inc., 132 F.3d 1112, 1119 (5th Cir. 1998).   Hinojosa has the

burden of demonstrating that his impairment limits a major life

activity.   Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.

184, 195 (2002).   Although a major life activity includes

performing manual tasks, Hinojosa must also show that the

limitation on the major life activity is substantial.     Id.;

McInnis, 207 F.3d at 280.   The Supreme Court has stated that “to

be substantially limited in performing manual tasks, an

individual must have an impairment that prevents or severely

restricts the individual from doing activities that are of



a legitimate, non-discriminatory reason for the adverse employment
action. McInnis, 207 F.3d at 280. Once the employer articulates
such a reason, the burden shifts back to the plaintiff to establish
by a preponderance of the evidence that the reason was merely a
pretext for discrimination. Id.

                                 3
central importance to most people’s daily lives.”       Toyota Motor

Mfg., 534 U.S. at 198.    In addition, the impairment’s impact must

be permanent or long term.    Id.    Hinojosa simply asserts that his

impairment makes it difficult for him to perform activities of

daily living.   However, he produces no evidence whatsoever that

he is prevented or even severely restricted from performing such

activities.   In addition, Hinojosa presents no evidence, in fact

he does not even allege, that the impact of his impairment is

permanent or long-term.    The fact that Hinojosa was diagnosed

with reflex sympathetic dystrophy does not in itself establish

that he was limited in a substantial major life activity because

the determination of whether a plaintiff has a disability is

based on the effect of the impairment in his life, not on the

name or diagnosis of the physical impairment.       Taylor v.

Principal Fin. Group, 93 F.3d 155, 164 (5th Cir. 1996) (citing 29

C.F.R. § 1630.2(j), App. (1995)).       Thus, Hinojosa has failed to

raise a genuine issue of fact as to whether he was limited in a

substantial major life activity.

     Second, Hinojosa argues that he has a record of a disability

because his medical records indicate he has an impairment that

substantially limits major life activities.      Under the ADA, a

disability is also defined as having a record of a physical or

mental impairment that substantially limits one or more major

life activities.   42 U.S.C. § 12102(2)(2000); Sherrod, 132 F.3d

at 1119.   Hinojosa bears the burden of showing that he has a

                                    4
record of an impairment.    Dupre v. Charter Behavioral Health Sys.

of Lafayette, Inc., 242 F.3d 610, 615 (5th Cir. 2001).    However,

Hinojosa points to no evidence in the record with regard to this

claim.   “[U]nsubstantiated assertions are not competent summary

judgment evidence.”   Ragas v. Tenn. Gas Pipeline Co., 136 F.3d

455, 458 (5th Cir. 1998).   In addition, Hinojosa has not pointed

to any legal authority supporting his argument.    Therefore, he

has inadequately briefed this claim on appeal and, as such, has

forfeited it.   Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131,

148 (5th Cir. 2004) (per curiam).     Thus, we need not review

Hinojosa’s claim that he has a record of a disability.2

     Third, Hinojosa argues that Jostens regarded him as having a

disability because it did not assign him to work as a trainer--a

job that he could do and that was available.    The ADA also

defines a disability as being regarded as having a physical or

mental impairment that substantially limits one or more major

life activities.   42 U.S.C. § 12102(2)(2000); Sherrod, 132 F.3d

at 1119.   Jostens would be deemed to have regarded Hinojosa as


    2
          Even if we did review Hinojosa’s argument, he has failed
to raise a genuine issue of material fact as to whether he has a
record of an impairment. This court has specifically rejected that
injury, surgery, hospitalization, and inability to work can
establish a record of a disability as a matter of law. Pryor v.
Trane Co., 138 F.3d 1024, 1028 (5th Cir. 1998).      In addition,
restrictions indicating an inability to perform continuous, heavy
lifting or an inability to perform a particular job do not
necessarily constitute a record of disability. Id. This court
requires a record of an impairment that substantially limits a
major life activity. Id. There simply is no such record here.

                                  5
disabled if it: (1) mistakenly believed that Hinojosa had a

physical impairment that substantially limited a major life

activity; or (2) mistakenly believed that an actual, nonlimiting

impairment substantially limited one of Hinojosa’s major life

activities.    Sutton v. United Airlines, Inc., 527 U.S. 471, 489

(1999); McInnis, 207 F.3d at 281.     There is no dispute that

Hinojosa had an impairment to his right arm.    The question

remains whether Jostens believed that Hinojosa’s impairment

substantially limited him in a major life activity.    This circuit

has held that an employer does not necessarily regard an employee

as substantially limited when it discharges the employee because

he can not perform his job.    Ray v. Glidden Co., 85 F.3d 227,

229-30 (5th Cir. 1996); Richards v. Seariver Mar. Fin. Holdings,

Inc., 59 F. Supp. 2d 616, 628 (S.D. Tex. 1998).    Thus, the fact

that Jostens terminated Hinojosa because he could not perform the

duties of any job available at Jostens does not establish that

Jostens regarded Hinojosa as substantially limited in a major

life activity.   Further, the fact that Hinojosa was not offered a

trainer position does not establish that Jostens considered him

substantially limited in a major life activity.    Hinojosa was

assigned to the lay-out clerk position to meet his restrictions,

and Jostens’s inquiry was simply meant to accommodate his

limitations.   In addition, Judy Howard, the employee responsible

for the administration of injury claims under the Jostens

Employee Injury Benefit Plan (the “Plan”), testified that she did

                                  6
not consider Hinojosa disabled.   Also, the fact that Jostens

inquired into Hinojosa’s capability to perform his duties does

not establish that Jostens considered Hinojosa substantially

limited in a major life activity.     See Tice v. Centre Area

Transp. Auth., 247 F.3d 506, 515-16 (3d Cir. 2001).     In fact, the

ADA authorizes employers to inquire about an employee’s ability

to perform job-related functions.     42 U.S.C. § 12112(d)(4)(B).

Thus, Hinojosa has failed to raise a genuine issue of fact as to

whether Jostens regarded him as having a disability.     We

therefore conclude that the district court did not err in

granting summary judgment on Hinojosa’s ADA claim.3

     We next turn to Hinojosa’s claim that Jostens discriminated

against him in violation of § 510 of ERISA, 29 U.S.C. § 1140, by

terminating his employment with the specific intent to deprive

him of medical benefits under the Plan.     Section 510 of ERISA

provides:

     It shall be unlawful for any person to discharge . . . a
     participant or beneficiary for exercising any right to
     which he is entitled under the provisions of an employee
     benefit plan . . . or for the purpose of interfering with
     the attainment of any right to which such participant may
     become entitled under the plan.

29 U.S.C. § 1140.   To establish a prima facie case under § 510, a


     3
          Since we have concluded that Hinojosa failed to raise a
genuine issue of fact with respect to a prima facie case of
discrimination under the ADA, we need not address Hinojosa’s
arguments that: (1) Jostens’s reason for terminating him was a
pretext for discrimination; and (2) Jostens discriminated against
him by failing to provide reasonable accommodations.

                                  7
plaintiff must prove, inter alia, that his employer terminated

him with the specific intent to discriminate against him for

exercising, or to interfere with, any ERISA right to which he is

entitled or may become entitled.       Holtzclaw v. DSC Communications

Corp., 255 F.3d 254, 261 (5th Cir. 2001).       The district court

determined that Hinojosa failed to establish his prima facie case

because, at the time Hinojosa was terminated, he had no right to

receive benefits under the Plan.       Pursuant to the terms of the

Plan, Hinojosa’s eligibility for benefits expired on April 2,

1998.    Thus, when he was fired on September 15, 2000, Hinojosa

did not have any right under the Plan.      Accordingly, Jostens’s

specific intent in terminating Hinojosa could not have been to

retaliate against him for exercising a right under the Plan or to

interfere with any rights under the Plan.       See Hines v. Mass.

Mut. Life Ins. Co., 43 F.3d 207, 209-10 (5th Cir. 1995)

(concluding that the district court properly granted summary

judgment because the plaintiff had “no rights” under the benefit

plan); Perdue v. Burger King Corp., 7 F.3d 1251, 1255 (5th Cir.

1993) (granting summary judgment on a § 510 ERISA claim because,

at the time of discharge, the plaintiff did not have rights under

the benefit plan with which the defendant could interfere); Van

Zant v. Todd Shipyards Corp., 847 F. Supp. 69, 73 (S.D. Tex.

1994).    Because Hinojosa failed to make a prima facie case of

discriminatory discharge under § 510 of ERISA, Jostens was

entitled to judgment as a matter of law.

                                   8
     Finally, we address Hinojosa’s claim that Jostens breached

its fiduciary duty under § 409 and § 502 of ERISA (29 U.S.C.

§ 1109 and § 1132 respectively) because it terminated him to

discontinue his benefits.   ERISA imposes personal liability on

any person who is a fiduciary with respect to a plan and who

breaches any of the duties imposed by ERISA.    Schloegel v.

Boswell, 994 F.2d 266, 271 (5th Cir. 1993).    ERISA provides that

a person is a fiduciary with respect to a plan to the extent he,

inter alia, “has any discretionary authority or discretionary

responsibility in the administration of such plan.”   29 U.S.C.

§ 1002(21)(A).   ERISA recognizes that an employer may act in a

dual capacity as both a fiduciary to the plan (as plan

administrator) and as an employer.   Long v. Excel Telecomms.

Corp., No. CIV. A. 3:98-CV-3015-G, 1999 WL 1029088, at *2 (N.D.

Tex. Nov. 9, 1999).   An employer serving as a plan administrator

assumes fiduciary status when it acts in its capacity of an

administrator, but not when it acts in its capacity as an

employer.   Izzarelli v. Rexene Prods. Co., 24 F.3d 1506, 1524

(5th Cir. 1994).

     In determining whether an employer acted as a plan

administrator or as an employer, this court looks at the nature

of the act and not at the intent behind it.    Bodine v. Employers

Cas. Co., 352 F.3d 245, 252 n.6 (5th Cir. 2003).    Several courts,

including the Fifth Circuit, have held that when a business

decides to terminate an employee, it acts in its capacity as an

                                 9
employer.   Id. at 251-52 (stating that “a decision to terminate

an employee, who is also a Plan beneficiary, is inherently not

fiduciary in nature”); see also Long, 1999 WL 1029088, at *2.

The district court dismissed Hinojosa’s claim because it

concluded Jostens was not a fiduciary under ERISA.    Hinojosa

argues that Jostens is a fiduciary under ERISA because it had

discretionary authority over the Plan’s management.    However,

because Jostens terminated Hinojosa, it was acting in its role as

an employer and not as a plan administrator.   Thus, Jostens was

not acting as a fiduciary when it terminated Hinojosa.    Since

Hinojosa has not produced any evidence that Jostens was acting in

its capacity as a plan administrator when it fired him (which

would have given it fiduciary status), the district court did not

err in granting summary judgment on Hinojosa’s breach of

fiduciary duty claim under ERISA.

     Accordingly, the judgment of the district court is AFFIRMED.




                                10
