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

                                                                            FILED
                                                                         January 30, 2008

                                       No. 07-20067                   Charles R. Fulbruge III
                                                                              Clerk

MAX TABATCHNIK

                                                  Plaintiff-Appellant
v.

CONTINENTAL AIRLINES

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 (4:06-CV-1095)


Before REAVLEY, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Max Tabatchnik (Tabatchnik) appeals an adverse summary judgment in
his suit against his former employer, Continental Airlines (Continental), for
discrimination under the Americans with Disabilities Act (ADA) of 1990, 42
U.S.C. § 12101, et seq.      We affirm.
       I.      BACKGROUND
       In July of 2005, Tabatchnik began working as a Senior Analyst in the
Scheduling and Planning Department of Continental.                     On November 21,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Tabatchnik and his supervisor, Brian Znotins, met to discuss certain behaviors
that needed to be corrected, including being absent without taking leave, taking
long lunches, arriving late, failing to adhere to the dress code, and posting an
inappropriate picture in his cubicle.       Around this same time, Tabatchnik
requested “flex” time to allow him to attend doctor appointments during his
lunch breaks. Znotins responded that Tabatchnik had to take leave (sick,
vacation, or unpaid) when he went to the doctor. Znotins did not want to know
the reason for his appointments.
      On December 9, Znotins gave Tabatchnik a formal written warning
detailing performance issues and stating that if he violated any company policies
and/or failed to show significant improvement, he would likely face more serious
disciplinary action, including termination. The next week, Buddy Anslinger,
Znotin’s supervisor, received a phone call from the vice-president of the
Corporate Security Department, stating that Tabatchnik had violated various
flight pass policies and needed to be questioned. On December 13, during a
corporate security interview, Tabatchnik admitted that he had violated the
company’s policy by letting his family use his Continental identification to book
their own travel and receive a higher priority seating. However, he claimed he
had unknowingly violated the company policy. The next day Tabatchnik was
terminated.
      Tabatchnik filed suit in district court against Continental, alleging
employment discrimination and retaliation in violation of the ADA. Continental
filed a motion for summary judgment, and the district court granted it.
Tabatchnik now appeals.


      II.     ANALYSIS

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              A.   Standard of Review
      This Court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. E.g., Hirras v. Nat'l R.R.
Passenger Corp., 95 F.3d 396, 399 (5th Cir. 1996). Summary judgment is proper
if the record reflects “that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV.
P. 56(c).
              B.   Discrimination
      Tabatchnik contends that the district court erred in ruling that he failed
to present any evidence that he has a disability as defined by the ADA. To
establish a prima facie case of discrimination under the ADA, a plaintiff must
demonstrate that he is a qualified individual with a disability and that the
negative employment action happened because of the disability. Sherrod v. Am.
Airlines, 132 F.3d 1112, 1119 (5th Cir. 1998) (citing 42 U.S.C. § 12112(a)). The
ADA defines disability as follows: “(1) a mental or physical impairment that
substantially limits one or more major life activities of an individual; (2) a record
of such impairment; or (3) being regarded as having such an impairment.” Id.
(citing 42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g)). Major life activities include
“such tasks as ‘caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning and working.’” Id. (quoting 29 C.F.R. §
1630.2(i)).
      Although Tabatchnik stated in an affidavit that he had been diagnosed in
2000 with an anxiety disorder, he does not contend that he has a substantially
limiting impairment under the ADA. Instead, he only argues that he was
regarded as having such an impairment by Continental. Pursuant to Equal


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Employment Opportunity Commission regulations, a person is regarded as
having an impairment if he “[h]as none of the impairments . . . but is treated by
a covered entity as having a substantially limiting impairment.” Id. at 1121
(quoting 29 C.F.R. § 1630.2(l)).       Tabatchnik fails to demonstrate that
Continental treated him as having such an impairment. Indeed, he fails to
identify what substantially limiting impairment Continental regarded him as
having. His only support for this argument is that he asked for “flex” time to
allow him to go to his doctor’s appointments during his lunch breaks. He admits
that his supervisor did not want to know about his medical condition. This
evidence falls woefully short of shouldering a burden of demonstrating that he
was regarded as having an impairment by his employer. In Bennett v. Calabrian
Chemicals, this Court held that an employer having granted the employee’s
request for twenty-six weeks of short term disability leave did not demonstrate
by itself that the employer regarded the employee as disabled. 126 F. App’x.
171, 2005 WL 643278, *1 (5th Cir. 2005) (unpublished); see also Cody v. Cigna
Healthcare of St. Louis, 139 F.3d 595, 599 (8th Cir. 1998) (holding that plaintiff
had not shown that her employer regarded her as disabled simply because the
employer granted her paid medical leave and required her to see a psychologist
before returning to work). In light of Tabatchnik’s failure to demonstrate that
Continental treated him as having a substantially limiting impairment, the
district court properly granted summary judgment in favor of Continental on
this discrimination claim.




      C.    Retaliation


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       Tabatchnik next contends that the district court erred in granting
summary judgment with respect to his claim of retaliation under the ADA. To
demonstrate unlawful retaliation, a plaintiff must make a prima facie case of (1)
engagement in an activity protected by the ADA, (2) an adverse employment
action, and (3) a causal connection between the protected act and the adverse
action. Seaman v. CSPH, 179 F.3d 297, 301 (5th Cir. 1999).                  If the plaintiff
establishes a prima facie case, the defendant must come forward with a
legitimate, non-discriminatory reason for the adverse employment action. Id.
If such a reason is provided, the plaintiff must submit sufficient evidence that
the proffered reason is a pretext for retaliation. Id. The employee must show
that but for the protected activity, the adverse employment action would not
have occurred. Id. Further, “in order to prosecute an ADA retaliation claim,
plaintiff need not show that she suffers from an actual disability. Instead, a
reasonable, good faith belief that the statute has been violated suffices.”
Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001).1
       With respect to the first element, Tabatchnik alleges that his request for
flex time during his lunch breaks to attend medical appointments constituted a
request for an accommodation under the ADA. Thus, he asserts that he has
shown that he engaged in a protected activity. It is undisputed that making a
request for a reasonable accommodation under the ADA may constitute engaging
in a protected activity. E.g., Jones v. U.P.S., 502 F.3d 1176, 1194 (10th Cir.


       1
          In contrast to an ADA discrimination claim, a plaintiff bringing an ADA retaliation
claim need not demonstrate that he has a disability. Krouse v. Am. Sterilizer, 126 F.3d 494,
502 (3d Cir. 1997). “By its own terms, the ADA retaliation provision protects ‘any individual’
who has opposed any act or practice made unlawful by the ADA or who has made a charge
under the ADA.” Id. (quoting 42 U.S.C. § 12203(a)). Therefore, Tabatchnik’s failure to prove
his disability does not preclude him from attempting to establish a retaliation claim.

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2007). The ADA requires “making reasonable accommodations to the known
physical or mental limitations of an otherwise qualified individual with a
disability who is an . . . employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the operation of the
business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A) (emphasis added).
As previously determined, Tabatchnik does not even argue that he believed he
had a disability. His argument was that Continental regarded him as having a
disability. Indeed, when questioned during his deposition whether his anxiety
disorder limited his ability to “do something at work,” Tabatchnik responded “I
don’t think so.” Because Tabatchnik has not shown that he had a good faith
belief that he was disabled or perceived as disabled, his request for an
accommodation cannot be considered protected by the ADA. See Standard v.
A.B.E.L. Servs., 161 F.3d 1318, 1328-29 (11th Cir. 1998) (holding that employee’s
requests for accommodation did not constitute protected activity because the
evidence did not demonstrate that he had a reasonable, good faith belief that he
was disabled or perceived as disabled). Tabatchnik thus has failed to satisfy the
first element of his prima facie case of retaliation. His retaliation claim fails.
      Accordingly, the district court’s judgment is AFFIRMED.




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