                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                Dec. 03, 2009
                                  No. 09-12839                THOMAS K. KAHN
                              Non-Argument Calendar               CLERK
                            ________________________

                   D. C. Docket No. 08-00099-CV-FTM-34-SPC

REINALDO LOPERENA,


                                                               Plaintiff-Appellant,

                                       versus

MIKE SCOTT,
in his official capacity as Lee
County Sheriff, a political
subdivision or County Office,

                                                              Defendant-Appellee.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                  (December 3, 2009)

Before CARNES, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
       Reinaldo Loperena appeals the district court’s order granting summary

judgment in his employment discrimination action. After a thorough review of the

record, we affirm.

       Loperena served with the New York Police Department for about twenty

years before retiring in 2000. He then served with the National Guard Reserves in

New York following the September 11 attacks, and in 2004, he was activated from

the reserves and deployed to Iraq, where he served until 2005. When he returned

from active duty, Loperena was treated for post-traumatic stress disorder

(“PTSD”). During this time, he began working as a security officer with the

Administrative Office of the Courts in Lee County, Florida. The PTSD did not

impact his employment. He remained in this position for about six months, until

he applied for a position with the Lee County Sheriff’s Office (“LCSO”) to serve

as a bailiff in the state courts.

       As part of the hiring process, Loperena completed a “prescreen

questionnaire,” in which he disclosed his military experience and his PTSD

diagnosis. After the LCSO made its initial determination that Loperena was

qualified for the bailiff position, Loperena completed the formal application. The

application including the following questions: “Have you claimed and been

employed using veterans’ preference since October 1, 1987?” and, “Are you



                                         2
designated as disabled because of any military service?” Loperena responded yes

to both questions.

      Loperena then interviewed with Major Dale Homan and two captains with

the LCSO. Homan began the interview by asking about Loperena’s PTSD.

Loperena answered truthfully that his PTSD was under control. Loperena passed

the interview, and Homan told him he was hired. The human resources department

notified Loperena by letter of his conditional employment, subject to a physical

and psychological examination. After the examinations, conducted by Barbara

Palomino de Velasco, Loperena was deemed fit for employment. Palomino was

aware of Loperena’s mental health treatment and determined that it did not

preclude him from employment.

      On May 2, 2007, Loperena arrived at the human resources department to

complete his paperwork and pick up an ID card. While in the office, he spoke with

Dian Bowman. Following this conversation, Bowman spoke with Palomino, who

became concerned about Loperena’s mental status. The LCSO then notified

Loperena that he was required to attend a second psychological evaluation with

Palomino. During this second evaluation, Loperena reported that he was receiving

mental health treatment on a weekly basis, which was more frequent than




                                         3
Palomino noted in her previous evaluation.1 Based solely on this exchange,

Palomino changed her evaluation and rated Loperena “unacceptable.” The LCSO

then informed Loperena that he would not be hired.

       Loperena filed an amended complaint against Lee County Sheriff Michael

Scott, alleging unlawful employment actions under the Uniform Services

Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C.

§ 4301, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, and the

Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01. Count 1 of the amended

complaint alleged that he was denied employment based on his military status, in

violation of USERRA. Count 2 alleged that Loperena was an otherwise qualified

person with a disability, or was perceived as having a disability, and that he faced

discrimination on that basis. Count 3 alleged that he was subjected to unlawful

employment practices under the FCRA.2

       The district court granted summary judgment on all claims. First, the court

       1
           Loperena disputes that he failed to divulge this information during the earlier
interviews. Annmarie Reno, the human resources manager, stated that Palomino informed her
the Loperena was rated “unacceptable” due to concerns that he might hurt himself. We conclude
this discrepancy does not preclude summary judgment. Even if we assume Loperena’s version is
correct, it does not show that Loperena was substantially limited in a major life activity or that
he was perceived as such.
       2
          Disability discrimination claims under the FCRA are analyzed under the same
framework as the ADA. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263-64
(11th Cir. 2007).



                                                4
rejected Loperena’s claim that the questionnaire was direct evidence of

discrimination. Because Loperena continued the application process after

answering these questions and admitting his PTSD, the court found that, at most,

the question gave rise to an inference of discrimination. The court also rejected

Loperena’s claim that the psychological examinations constituted direct evidence.

       Considering whether there was circumstantial evidence of discrimination,

the court found that Loperena had failed to show that he was disabled under the

ADA.3 Specifically, the court found that, although Loperena suffered a mental

impairment, he had not shown that this impairment substantially limited any major

life activity.4 The court next found that there was no evidence the LCSO regarded

Loperena as disabled, as it continued the application process with the knowledge




       3
          The ADA and its accompanying regulations define “disability” as, inter alia, (1) a
physical or mental impairment that substantially limits one or more of the major life activities of
the individual, or (2) being regarded as having an impairment. 42 U.S.C. § 12102(1) and (2); 34
C.F.R. § 104.3(j)(1); Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1264 (11th Cir.
2007).
       4
            A mental impairment is defined as “[a]ny mental or psychological disorder, such as . . .
emotional or mental illness . . . .” 29 C.F.R. § 1630.2(h)(2). To be substantially limited, the
employee must be “(i) Unable to perform a major life activity that the average person in the
general population can perform; or (ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life activity as compared
to . . . the average person . . . .” 29 C.F.R. § 1630.2(j)(1). “Major life activities are “functions
such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F.R. § 1630.2(i).

                                                 5
that Loperena suffered from PTSD.5 Finally, the court rejected Loperena’s

USERRA claim because Loperena could not show that “but for” his military

service, he would have been hired, as the evidence showed that the LCSO routinely

hired members of the military.6 This appeal followed.

       We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160,

1161-62 (11th Cir. 2006). Summary judgment is appropriate where the moving

party demonstrates, through “pleadings, interrogatories, and admissions on file,

together with the affidavits, if any,” that no genuine issue of material fact exists,

and it is “entitled to judgment as a matter of law.” Fed. R. Civ. P 56(c).

       Loperena asserts that the district court erred by finding that (1) the

questionnaire was not direct evidence of discrimination and was irrelevant; (2) he

was not disabled or regarded as disabled; and (3) he failed to establish a prima



       5
           To be “regarded as having such an impairment” means that an individual, inter alia,
“[h]as a physical or mental impairment that does not substantially limit major life activities but
is treated by a covered entity as constituting such limitation.” D’Angelo v. Conagra Foods, 422
F.3d 1220, 1228 (11th Cir. 2005) (quoting 29 C.F.R. § 1630.2(l)).
       6
          To state a claim under USERRA, the plaintiff must show proof of a discriminatory
motive, otherwise known as the “but for” test. 38 U.S.C. § 4311; Coffman v. Chugach Support
Servs., Inc., 411 F.3d 1231, 1238 (11th Cir. 2005). Under this test, Loperena must show by a
preponderance of the evidence that his protected status was a motivating factor in the decision
not to hire him. Coffman, 411 F.3d at 1238.

                                                 6
facie case under USERRA.

      After review of the record and the parties’ briefs, we affirm for the reasons

given in the district court’s thorough order granting summary judgment.

      AFFIRMED.




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