                      UNITED STATES COURT OF APPEALS
                           FOR THE FIFTH CIRCUIT

                             _____________________

                                  No. 95-40107
                             _____________________

                               LYNN M. PAULSEN,

                                                           Plaintiff - Appellant,
                                      versus

                                  BEYOND, INC.,

                                                           Defendant - Appellee.

           ________________________________________________

             Appeal from the United States District Court
                   for the Eastern District of Texas
                              (4:94-CV-22)
           ________________________________________________

                          June 18, 1996
Before POLITZ, Chief Judge, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM:*

     The     critical     issue     in    Lynn      M.     Paulsen's   employment

discrimination      action     is   whether,       under    the    Americans   with

Disabilities Act (ADA), 42 U.S.C. § 12102(2)(C), Paulsen was

"regarded"     by   her   employer,      Beyond,    Inc.,    "as   having   ...   an

impairment" (cancer) that "substantially limit[ed] one or more of

[her] major life activities".            For this challenge to the summary

judgment awarded Beyond as to claimed violations of Title VII and

the ADA, we conclude that a material fact issue does not exist for


*
     Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
either claim, and that Beyond is entitled to judgment as a matter

of law.   Therefore, we AFFIRM.

                                         I.

      Paulsen was employed by Beyond from September 1991 until late

October 1993.        Beyond sold electronic mail software, and Paulsen

served as a regional sales manager. In general, she sold Beyond's

product within an eight-state region and helped her customers, as

well as resellers, to use the product.                Although her title was

manager, Paulsen did not supervise other sales employees; however,

she did supervise an engineer who provided technical support to

Paulsen and her customers.               Of Beyond's seven regional sales

managers, Paulsen was the only female.

      Prior to her employment with Beyond, Paulsen had a form of

cancer, which she believed was related to her mother's use during

pregnancy of the drug diethylstilbestrol (DES).               This had required

removal approximately ten years before she began work with Beyond

of,   among   other    things,     several     of   her   reproductive   organs.

Believing     this    experience    to    be   "a   strong   statement   of   her

determination", Paulsen disclosed her previous condition to Beyond

before being hired, including her inability to have children.                  On

the other hand, Paulsen was in good health when hired.

      As hereinafter discussed, Paulsen was absent from work from

mid-August 1993 until her termination that October.                  While the

summary judgment evidence is conflicting as to some aspects of that



                                      - 2 -
summer, it is apparent at the very least that, by this point,

tensions were forming surrounding Paulsen's position at Beyond.

For example, while the evidence conflicts as to whether Paulsen was

criticized     directly    by   her    supervisors,       the   uncontroverted

deposition testimony of Craig Millard was that, as early as June,

he had been hired to search for someone to fill Paulsen's role.

     In mid-August, Paulsen informed her supervisor, Mike Allen,

that she was ill, was unable to work, and was scheduled for medical

tests.    On September 10, she contacted Allen by e-mail to inform

him of her medical status, stating that, although she required

surgery to remove scar tissue obstructing her small intestine, the

surgery   would   be   postponed      in   order   for   her    to   attend     her

grandmother's funeral; that the rescheduled surgery would take

place the following week; and that she anticipated only a three to

five day recovery.

     A week later, Paulsen contacted Beyond's chief financial

officer   by   facsimile   mail    regarding       her   absence     due   to   her

hospitalization and the death of her family member in order to

provide him with necessary documentation for disability pay.                    And,

at the end of September, Paulsen spoke with Allen by telephone to

discuss both her health and the status of her business.                According

to Paulsen, during their conversation, Allen inquired, "You used to

have cancer, didn't you?          Aren't you afraid it's going to come

back?"



                                      - 3 -
       On October 5, Beyond hired another person to be the regional

sales    manager     for   the   territory     Paulsen    handled.      In     her

deposition, Paulsen stated that she had heard a rumor that Allen

"had an old buddy friend of his from [another] Corporation that he

was thinking about hiring for [her] region".                   That Thursday,

October 7, Paul Guerin telephoned Paulsen to inquire about her

status, and asked Paulsen about her prior cancer and whether she

was concerned that her current problems were related. (By October,

Guerin had assumed the position that had been held by Mike Allen,

and had become Paulsen's supervisor.)             Paulsen did not return to

work    the   next   day   (Friday),    but    spoke   again   with   Guerin    by

telephone to inform him that she was ready to return that Monday,

October 11.

       Guerin and Paulsen spoke again on Sunday, October 10; he

informed her that Beyond did not want her to return to work and

suggested that they negotiate a mutually acceptable separation.

Paulsen asked Guerin to explain why Beyond wanted to terminate her

employment, and he cited her below-goal sales figures, tardy

expense reports, and tardy and inaccurate sales projection reports.

Guerin asserted, but Paulsen denied, that these matters had been

discussed previously with her by her former supervisor, Mike Allen.

       No agreement was reached, and Paulsen filed this action in

February 1994 under Title VII and the ADA.                The district court

granted Beyond's motion for summary judgment on each claim.

                                        II.

                                       - 4 -
     Paulsen contests the summary judgment. It goes without saying

that we review it de novo, applying the same standard as the

district court: the evidence, and reasonable inferences from it,

are considered in the light most favorable to the nonmovant; and

the "judgment is proper when no issue of material fact exists and

the moving party is entitled to judgment as a matter of law".

Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 725 (5th Cir. 1995);

FED. R. CIV. P. 56.        "[T]he substantive law will identify which

facts are material", and "[a] dispute about a material fact is

`genuine' ... if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party".             Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

     No authority need be cited for the rule that we consider only

the summary judgment record that was before the district court.             In

that regard, Beyond moved in district court to strike much of

Paulsen's summary judgment evidence on grounds that parts of her

affidavit   were   based    on   facts   of   which   she   had   no   personal

knowledge, or were inadmissible hearsay, or were conclusory, or

conflicted with her deposition; and that exhibits were not properly

authenticated.     The court granted the motion in part, and Paulsen

challenges this ruling.

     The court struck the following: (1) Paulsen's statements

regarding employment negotiations with other employees as to which

she had no personal knowledge; (2) her statement regarding her


                                    - 5 -
status as a national account manager, noting that it could not

qualify as an admission of a party opponent because Paulsen failed

to identify the declarant; (3) her recitation of statements made by

former employees, which were hearsay; (4) notes on her sales

meetings and the text of an e-mail message, the substance of which

is duplicated elsewhere in the summary judgment evidence, because

Paulsen failed to supply the needed facts to qualify documentary

evidence under the hearsay rule; and (5) portions of her affidavit

and that of a co-worker that contained conclusory statements.   We

need not determine whether the court erred in striking this part of

the record, because none of that evidence is sufficient to create

a material fact issue as to either claim.

                                A.

     It is undisputed that Paulsen has satisfied her initial burden

of presenting a prima facie case for a Title VII claim.   At issue

is whether she fails to satisfy her burden of creating a material

fact issue that Beyond's explanation was not the real reason for

her termination and that unlawful discrimination motivated Beyond.

See, Bodenheimer v. PPG Industries, Inc., 5 F.3d 955, 957 (5th Cir.

1994).

     As its basis for termination, Beyond relies upon (1) Paulsen's

failure to achieve sales quotas; (2) her failure to properly and

timely complete sales projection reports; (3) her failure to timely

submit expense reports; (4) her inaccessibility to customers and


                              - 6 -
supervisors; (5) her failure to return their telephone calls; and

(6) customer complaints.   And, Beyond asserts that Paulsen has not

created a material fact issue as to the required discriminatory

motive.

     Paulsen contends that the following creates a material fact

issue on motivation: (1) she was the only female regional sales

manager; (2) she was ranked second in sales on a monthly report,

yet was dismissed when those male sales managers below her were

retained and not disciplined for low sales; (3) she was fired by,

and replaced by, males; (4) her co-worker stated that Paulsen had

been humiliated in a meeting in a manner the co-worker described as

sexist; (5) early in her tenure with Beyond, it was unresponsive to

her complaints regarding sexual harassment by another employee; and

(6) two male employees were not fired, although they were away from

work for extended periods due to illness.     As discussed below, we

agree with the district court that, on this record, a material fact

issue does not exist as to whether Paulsen's gender was a factor in

her dismissal.

     That Paulsen is female and was replaced by a male merely

establishes her prima facie case (which is undisputed) and is

insufficient to create a material fact issue on discriminatory

motive.

     Paulsen's contention regarding other salespeople not being

disciplined is not borne out by the record.    She admitted that one



                               - 7 -
person was disciplined for low sales and that another, a regional

sales manager of similar seniority, was also dismissed.        Both

persons out-sold Paulsen from January through August 1993.      Two

other sales managers, each of whom occupied the position for a

shorter period than Paulsen, were fired for low sales, even though

their sales were higher than Paulsen's at the time of their

discharge.

     There is no evidence linking Paulsen's being harassed by her

fellow employee to her termination years after the resolution of

the episode, and she admits that the incidents ceased after she

complained to her supervisor, Mike Allen.   Moreover, the employee

who was the subject of the complaints was discharged.

     The only evidence regarding allegedly sexist remarks made to

Paulsen at a sales meeting is the opinion of a former fellow

employee that the comments were of that nature.   Paulsen offered no

evidence linking these remarks, alleged to predate her termination

by a year, to her dismissal. This is insufficient to create a fact

issue on discriminatory motive. See Wilson v. Belmont Homes, Inc.,

970 F.2d 53, 57 (5th Cir. 1992) (plaintiff failed to satisfy burden

of proof on discriminatory motive when she presented evidence of

employer comment that plaintiff's was "a man's job" but failed to

tie comment to motive for firing).

     The male employees whom Paulsen asserted were absent due to

illness neither occupied regional sales manager positions as did


                              - 8 -
Paulsen, nor did they suffer similar illnesses.        Their experiences

also do not suffice to create a fact issue regarding discriminatory

motive.   See generally, Florence v. Frank, 774 F. Supp. 1054 (N.D.

Tex.   1991)   (plaintiff   failed   to   survive   summary   judgment   on

discrimination claim where he compared employer's treatment of him

to treatment of employee who suffered different injury because

employees were not similarly situated).

       While Paulsen offers facts that would suggest Beyond was

pleased with her work (customer compliments, Beyond's request that

she conduct important meetings), these do not create a material

fact issue that the real reason for her termination was her gender.

As stated, summary judgment was proper as to the Title VII claim.

See generally, Rhodes v. Guiberson Oil Tools, 75 F.3d 989, 994 (5th

Cir. 1996) (en banc) (instructing that, in comparable area of ADEA

law, plaintiff can avoid summary judgment if evidence taken as

whole (1) creates fact issue as to whether employer's stated

reasons actually motivated actions, and (2) creates reasonable

inference that [gender] was a determinative factor in actions of

which plaintiff complains).




                                 - 9 -
                               B.

     A person is "disabled" under the Americans with Disabilities

Act, 42 U.S.C. § 12101, et. seq., if she suffers any one of three

alternatives:




                             - 10 -
          (A)    a physical or mental 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).

     Paulsen,    most   belatedly    in   her       reply   brief,   claims   ADA

coverage only as to the third alternative, "being regarded as

having such an impairment".     As to the district court's conclusion

that ADA coverage was lacking, Paulsen's opening brief on appeal

does not adequately brief this point.               While she does urge us at

length to conclude that the district court improperly concluded

that Beyond's inquiries about her condition were not sufficient to

establish discriminatory intent, Paulsen does not adequately brief

whether those same inquiries, combined with other summary judgment

evidence, were sufficient to establish that Beyond regarded Paulsen

as disabled.    Only in her reply brief does she finally address the

failure to prove ADA coverage under the "regarded as" provision,

saying only that (1) she did not claim to be disabled, but rather

that she was perceived to be disabled; (2) that what was required

to establish a prima facie case under this provision "created

problems for the Trial Court"; and (3) that, in a "regarded as"

case, typical standards do not apply.                 Needless to say, this

discussion     does   little   to    frame      a    cogent    issue   for    our

consideration; and, on this basis alone, we could affirm summary


                                    - 11 -
judgment on the ADA claim.           See FED. R. APP. P. 28(a)(6); e.g.,

Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.) (noting that Rule

28   requires   that   appellant's       argument     contain     reasons     and

supporting   authority    appellant      deserves    relief     requested,    and

holding that, because appellant failed to argue point in body of

brief, argument considered abandoned), cert. denied, 498 U.S. 966

(1990).

     In any event, as the district court concluded, Paulsen fails

to demonstrate that she is covered by this statutory provision

because she offered no evidence of Beyond's "perception of the

limiting effects" of her supposed recurrence of cancer.                The EEOC

regulations define "regarded as having such an impairment" as

follows:

           (1) Has a physical or mental impairment that
           does not substantially limit major life
           activities but is treated by a covered entity
           as constituting such a limitation;

           (2) Has a physical or mental impairment that
           substantially limits major life activities
           only as a result of the attitudes of others
           toward such impairment; or

           (3) Has none of the impairments defined in
           paragraph (h)(1) or (2) of this section but is
           treated by a covered entity as having a
           substantially limiting impairment.

29 C.F.R. § 1630.2(l).

     Because    Paulsen      maintains    that   she      did    not   have   an

"impairment"    (did   not    have    cancer),      she   must    satisfy     the

regulation's third alternative: that Beyond "treated ... [her] as

                                     - 12 -
having a substantially limiting impairment".        We agree with the

district court that, to establish ADA coverage under this part,

Paulsen must do far more than simply assert that Beyond believed

she was suffering a recurrence of cancer.          She must create a

material fact issue that Beyond treated her as if the supposed

cancer substantially limited a major life activity.

     In its summary judgment motion, Beyond asserted that Paulsen

had failed to present a material fact issue as to whether she was

"disabled" within the meaning of the ADA.         In response to the

motion, Paulsen addressed the "limiting effects" aspect of her

claim   with   only   a   parenthetical,   conclusory   statement   that

"[c]ancer is an obvious disability - particularly where it has

required removal of important bodily organs and has limited various

major life functions such as childbirth and urinary functions".

     Obviously, this conclusory statement primarily describing a

previous condition, without more, is insufficient to establish ADA

coverage.   Moreover, cancer is not per se a disability; rather, in

individual cases, it may not substantially limit a major life

activity. See, Ellison v. Software Spectrum, Inc., __ F.3d __ (5th

Cir. 1996), 1996 WL 284969 (finding plaintiff's cancer did not

substantially limit any major life activity and thus was not a

disability).

     As record support for the conclusory statement that "[c]ancer

is an obvious disability - particularly where it has required


                                 - 13 -
removal of important bodily organs and has limited various major

life functions such as childbirth and urinary functions", Paulsen

cites to the following portion of her affidavit:

            During the years 1978 through 1983, I had many
            organs removed because of a diagnosis of
            cancer. My mother had taken DES during her
            pregnancy with me to prevent miscarriage, but
            this drug was later found to cause clear-cell
            carcinoma polyps and other bad side effects to
            offspring.     I had the following organs
            removed: Fallopian Tubes, Ovaries, Uterus,
            Appendix, Gallbladder, parts of muscle, liver,
            and abdomen wall. This resulted in my being
            unable to bear children. I also have problems
            with urinary incontinence, and I have no
            natural hormones which results in an inability
            to regulate my body temperature, among other
            things.

As hereinafter discussed, this evidence is insufficient to satisfy

Paulsen's burden under Rule 56 and the law of our circuit.

      As the party who did not bear the burden of proof at trial on

coverage under the ADA, Beyond was not required to produce evidence

negating the existence of a material fact. Instead, its burden was

to point out the absence of evidence supporting Paulsen's case.

E.g., Latimer v. Smithkline & French Laboratories, 919 F.2d 301,

303 (5th Cir. 1990). Accordingly, once Beyond submitted a properly

supported summary judgment motion, in which it pointed, inter alia,

to   the   lack   of   evidence   supporting   Paulsen's   "regarded   as"

contention, Paulsen was required to designate the specific facts in

the record that created a material fact issue.




                                   - 14 -
      Assuming   arguendo    that   Beyond   believed    that   Paulsen   had

cancer, Paulsen did not present any evidence that Beyond treated

her as having cancer that substantially limited a major life

activity.       Standing   alone,   the   above-quoted    portion   of    her

affidavit, upon which she relies for her claimed ADA coverage, does

not address this critical point.       Nor does Paulsen explain how any

of the record evidence created a material fact issue on whether

Beyond so treated her.       Nor are we required to attempt to weave

evidence together for her.      Rule 56 does not impose upon us a duty

to survey the entire record in search of evidence to support the

nonmovant's position. See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th

Cir.) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915

n.7 (5th Cir.), cert. denied, 506 U.S. 832 (1992)), cert. denied,

__ U.S.__, 115 S. Ct. 98 (1994).

      Alternatively, even attempting to piece together the evidence

to create the requisite material fact issue, we are unable to do

so.   The only record evidence that we can hypothesize to be even

arguably relevant to whether Beyond treated Paulsen as having

cancer that substantially limited any of her major life activities

was: (1) Guerin's admissions in his deposition that he questioned

Paulsen about whether she was concerned that the health problems

she experienced in 1993 were in some way related to her previous

cancer;   (2)    Paulsen's   descriptions    in   her   affidavit   of    the

sometimes severe symptoms of her prior cancer; and (3) Guerin's


                                    - 15 -
belief at the time, as he described in his deposition, that Paulsen

would be too sick to return to work.

     As stated, to create a material fact issue on this point, the

evidence must demonstrate that Beyond treated Paulsen, not merely

as if she had cancer, but as if she had cancer that substantially

limited a major life activity.    Even assuming that the problems

caused by Paulsen's prior cancer, as described by Paulsen in her

affidavit, would suffice to demonstrate the limitation of a major

life activity, and even further assuming that Guerin's inquiry

could establish that Beyond treated Paulsen as if her present

inability to return to work established that she was suffering a

recurrence of that same cancer, Paulsen presents no evidence that

Beyond appreciated the gravity of her previous cancer in such a way

that it believed it to have substantially limited a major life

activity.

     Neither logic nor the ADA compel the conclusion that one who

believes a person to be suffering from cancer must believe ipso

facto that the cancer substantially limits a major life activity.

Paulsen simply does not establish, nor can we deduce, in what way

Beyond treated Paulsen as if she suffered from any illness that had

the requisite limiting effects to trigger ADA coverage.    Because

Paulsen failed to establish a material fact issue as to ADA

coverage, summary judgment was proper on that claim.

                               III.


                              - 16 -
For the foregoing reasons, the judgment is

                                             AFFIRMED.




                        - 17 -
