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

                                                                            FILED
                                                                         October 26, 2007

                                     No. 07-20276                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ROBERT ARREDONDO

                                                  Plaintiff-Appellant
v.

GULF BEND CENTER

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:06-CV-1580


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Robert Arredondo alleged in a pro se suit against his former employer Gulf
Bend Center that he lost his job as a Mental Health Counselor because of sex
discrimination and retaliation, in violation of Title VII of the Civil Rights Act of
1964, and discrimination prohibited by the Americans with Disabilities Act
(“ADA”).     The district court granted summary judgment in favor of the
defendant, and Arredondo appeals. Applying de novo review, Nasti v. CIBA


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                No. 07-20276

Specialty Chemicals Corp., 492 F.3d 589, 592 (5th Cir. 2007), we affirm for the
following reasons.
1.    Gulf Bend Center provides care to mental health and mental retardation
      patients, who it refers to as “consumers.” On May 3, 2005, staff members
      called Arredondo for assistance with a consumer in crisis. The consumer
      had become verbally abusive and physically threatening to staff and other
      consumers. Arredondo took charge of the consumer and, without
      consulting his supervisor, took the consumer for a ride in his personal
      vehicle to calm him. Upon learning of these events, Richard Wright,
      Arredondo’s immediate supervisor, called Arredondo on his cell phone and
      instructed him to return immediately to the Center. Wright and Ernest
      Moss, the Director of Clinical Services, met with Arredondo and were
      concerned because no other staff members had been present in
      Arredondo’s vehicle to assist if the consumer again became violent or
      abusive. Wright reported the incident to the Texas Department of Family
      and Protective Services, but the Department declined to open an
      investigation and referred the matter back to the Center for
      administrative review because the consumer had not been injured.
2.    The Center considered Arredondo’s actions to be contrary to its policies
      concerning consumer care and safety and in derogation of his training.
      Director of Human Resources Scott Granz placed Arredondo on paid
      administrative leave pending an investigation. Granz and Moss
      subsequently recommended to the Director of Administrative Services that
      Arredondo be terminated for exercising poor clinical judgment. Arredondo
      provided a response to the recommendation and was told that a decision
      would be made by May 11, 2005. On May 10, 2005, however, Arredondo’s
      attorney sent a letter to the Center referring to Arredondo’s “former



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     employment.”      The Center construed this letter as Arredondo’s
     resignation.
3.   Approximately one month before the incident described above, Arredondo
     had made a complaint of sexual harassment against a co-worker. Granz
     investigated the complaint and in a letter to Arredondo dated April 26,
     2005, stated that he was unable to find harassment because there were no
     witnesses. He also indicated that he had intended to have the alleged
     offender attend additional workplace training but she had subsequently
     resigned for unrelated reasons. Arredondo was given the letter on May 2,
     2005, and he indicated that he was satisfied with the investigation. The
     incident with Arredondo transporting the consumer in his vehicle occurred
     the next day.
4.   Arredondo alleged in the district court that he was terminated due to his
     sex, in violation of 42 U.S.C. § 2000e-2(a). Arredondo has not pursued this
     claim on appeal, and his failure to brief the issue constitutes a waiver of
     the claim. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
5.   Arredondo devotes much of his brief to contesting the Center’s assessment
     of his actions, essentially arguing that he did nothing wrong in
     transporting the consumer because the consumer was not violent and did
     not have a weapon. Arredondo contends that he was constructively
     discharged in retaliation for making the sexual harassment complaint and
     that the district court applied an incorrect standard to his claim. In
     support of his claim, Arredondo primarily relies on the time line of events
     and the temporal proximity of the harassment complaint to the end of his
     employment. As part of his case, Arredondo was required to put forth
     sufficient summary judgment evidence showing that he would not have
     lost his job but for the sexual harassment complaint. See Strong v. Univ.
     HealthCare Sys., L.L.C., 482 F.3d 802, 806 (5th Cir. 2007).     Temporal

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     proximity alone is insufficient. Id. at 808. We conclude that the Center
     put forth a legitimate reason for the employment action and that
     Arredondo fails to show a genuine issue of material fact that the reason
     was pretextual. See id.
6.   Arredondo also argues that the Center violated the ADA because the
     adverse employment action occurred because of a disability, specifically
     bipolar disorder and a learning disability, of which the Center was aware.
     To establish a prima facie case of discrimination under the ADA,
     Arredondo must show that (1) he suffers from a disability; (2) he is
     qualified for the job; (3) he was subjected to an adverse employment
     action; and (4) he was replaced by a non-disabled employee or treated less
     favorably than a non-disabled employee. See Seaman v. CSPH, Inc., 179
     F.3d 297, 300 (5th Cir. 1999). The district court held that Arredondo was
     not disabled under the ADA. A disability within the meaning of the ADA
     is “a physical or mental impairment that substantially limits one or more
     of the major life activities,” “a record of such an impairment,” or “being
     regarded as having such an impairment.” 42 U.S.C. § 12102(2). Although
     Arredondo has put forth evidence showing that he has been diagnosed
     with a mental impairment, he has not shown a disability because his
     exhibits also show that he does well with medication. See Sutton v. United
     Air Lines, Inc., 527 U.S. 471, 482–83, 119 S. Ct. 2139, 2146–47 (1999)
     (holding that “[a] person whose physical or mental impairment is corrected
     by medication or other measures does not have an impairment that
     presently ‘substantially limits’ a major life activity”). Individuals claiming
     disability status under the ADA may not rely merely on evidence of a
     medical diagnosis of an impairment but must present “‘evidence that the
     extent of the limitation [caused by their impairment] in terms of their own
     experience . . . is substantial.’” Toyota Motor Mfg., Ky., Inc. v. Williams,

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     534 U.S. 184, 198, 122 S. Ct. 681, 691-92 (2002) (citation omitted).
     Arredondo fails to show that his condition has substantially limited his
     major life activities, and on the record presented he fails to show a
     genuine issue of material fact that he is disabled. Further, assuming for
     the sake of argument that Arredondo could make out a prima facie case,
     he fails to show that the Center’s reason for the employment action was
     a pretext for unlawful discrimination. See McInnis v. Alamo Comm. Coll.
     Dist., 207 F.3d 276, 280 (5th Cir. 2000).
7.   To the extent Arredondo makes other arguments in his brief, some for the
     first time on appeal, we are not persuaded.
AFFIRMED.




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