     Case: 12-31254       Document: 00512293281         Page: 1     Date Filed: 07/01/2013




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

                                                                            FILED
                                                                            July 1, 2013

                                     No. 12-31254                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



KATHERINE CONNER,

                                                  Plaintiff-Appellant
v.

LOUISIANA DEPARTMENT OF HEALTH AND HOSPITALS,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:02-CV-284


Before KING, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Katherine Conner brought suit against her employer for discrimination
and retaliation in violation of the Americans with Disabilities Act. Summary
judgment was granted to the defendant. We AFFIRM.
       Conner began working for the Louisiana Department of Health and
Hospitals (“the Department”) in May 1977. In July 1999, Conner suffered an
injury as the result of a slip and fall in a parking lot. At the time, she held 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 12-31254     Document: 00512293281      Page: 2   Date Filed: 07/01/2013




                                  No. 12-31254

position of a recreation specialist. Conner took a medical leave of absence and
returned to work in November of that year. In March 2000, she slipped while
exiting a vehicle and suffered a second injury. The Department authorized
Conner to remain absent on leave without pay through July 16, 2000. Conner
later returned to work, having received a physician’s release to resume
employment with “light duty” responsibilities on July 17.
       On July 24, Conner met with personnel from human resources and a
manager to discuss these responsibilities; Conner states the Department “sent
her home with a sample duty list . . . to give to her doctor for approval.” A month
later, Conner submitted a complaint to the Equal Employment Opportunity
Commission, alleging the Department discriminated against her because of a
disability. On August 30, the Department mailed Conner a letter and directed
her to return to work no later than September 7. Conner did so but apparently
left again before September 13. The Department delivered a second letter,
directing her to return to work immediately. The letters referenced two different
treating physicians’ releases for Conner to return to work without restrictions.
Conner complied with the second directive and returned to work, but on
September 21, she fell and suffered a third injury. She again was absent from
work following the injury.
      On October 3, 2000, the Department mailed Conner a letter, stating:
      We propose to remove you from your position as Therapeutic
      Recreation Service Specialist . . . . The reason for this proposed
      action is that you are unable to perform the essential functions of
      your position according to recent medical certification, and you have
      exhausted all sick and annual leave and have been on leave without
      pay since 09/22/2000. Additionally, you exhausted all Family and
      Medical Leave Act (FMLA) leave as of 06/28/2000. The duties of


                                        2
    Case: 12-31254    Document: 00512293281     Page: 3   Date Filed: 07/01/2013




                                 No. 12-31254
      your position must be carried out on a full-time basis without
      further interruption.

      Conner responded on October 10. She wrote that she was unable to
perform her full duties at that time, which she claimed was also the opinion of
her primary care physician. On October 17, after reiterating its reasoning and
acknowledging Conner’s own admission, the Department removed Conner from
her position because of the absenteeism.
      On March 19, 2002, Conner pursued claims in part for disability
discrimination and retaliation in the United States District Court for the Middle
District of Louisiana. The court granted summary judgment in favor of the
Department on these two claims, and Conner appealed.
                                 DISCUSSION
      We review the grant of summary judgment de novo. Kemp v. Holder, 610
F.3d 231, 234 (5th Cir. 2010). Summary judgment is appropriate when “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).
      Conner filed her civil action against the Department in 2002. Significant
amendments to the Americans with Disabilities Act were adopted in 2008.
Kemp, 610 F.3d at 236.      Because the 2008 amendments are not applied
retroactively, the pre-amendment statute controls. Id.
      With regard to her disability-discrimination claim, Conner contended that
she was within a protected class of the Americans with Disabilities Act because
she was “regarded as” having a physical impairment by the Department. The
Department argued in its motion for summary judgment that no evidence
supported such a finding. In response, Conner pointed to the letters in which


                                       3
     Case: 12-31254        Document: 00512293281           Page: 4     Date Filed: 07/01/2013




                                        No. 12-31254
the Department referenced her inability “to perform the essential functions of
[her] position according to recent medical certification.”
       The district court rejected Conner’s argument because the letters referred
only to one position that the Department allegedly believed Conner could not
perform because of her impairment. Applying pre-2009 law, the court correctly
explained that Conner’s theory of recovery would require her to show the
Department regarded her as having “a physical or mental impairment that
substantially limits one or more of the major life activities . . . .” Sutton v.
United Air Lines, Inc., 527 U.S. 471, 489 (1999), superseded by statute, ADA
Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553. In terms of the
major life activity of working, the statute referred to an inability “to work in a
broad class of jobs.” Id. at 491. Because Conner failed to present or identify
evidence to support her rationale for recovery, we agree that summary judgment
in favor of the Department was appropriate.1 Kemp, 610 F.3d at 237.
       The district court also granted summary judgment on Conner’s claim of
retaliation.     Conner contended the Department retaliated against her by
removing her from her position within two months of her disability-
discrimination filing with the Equal Employment Opportunity Commission.
       A prima facie showing of unlawful retaliation requires Conner to establish
that she engaged in a protected activity, the Department took an adverse
employment action against her, and a causal connection exists between the


       1
        On appeal, Conner does not dispute that she alleged only that the Department
regarded her as substantially limited in the major life activity of working, as opposed to some
other major life activity. Accordingly, by failing to present and brief arguments that she was
regarded as having some other limitation, Conner has waived the argument on appeal.
Roberson v. Alltel Info. Servs., 373 F.3d 647, 654 n.9 (5th Cir. 2004); Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).

                                                4
    Case: 12-31254    Document: 00512293281    Page: 5   Date Filed: 07/01/2013




                                No. 12-31254
activity and action. Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999).
Once established, the Department must then provide a legitimate,
nondiscriminatory reason for taking the adverse action. Id. If provided, Conner
“must adduce sufficient evidence that the proffered reason is a pretext for
retaliation.” Id. To prevail on her claim, Conner “must show that ‘but for’ the
protected activity, the adverse employment action would not have occurred.” Id.
      The district court determined Conner established a prima facie case of
retaliation; then the court accepted the Department’s reason of absenteeism as
legitimate and nondiscriminatory.     The court granted summary judgment
because Conner failed to offer evidence that such reason was pretext for
discrimination.
      We will assume that Conner made out a prima facie case, and we agree
that the Department’s reason was legitimate and nondiscriminatory. On appeal,
Conner does not dispute that the evidence shows she was removed from her
position because of her absenteeism. She points to no additional evidence that
shows this reason was pretext. Accordingly, summary judgment was properly
entered in favor of the Department. See id. at 301-02.
      Motion to strike pages from Conner’s record excerpts that consist of
documents not in the record is GRANTED. Judgment AFFIRMED.




                                      5
