                                                      [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS

                 FOR THE ELEVENTH CIRCUIT            FILED
                   ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                          No. 08-12330                FEBRUARY 11, 2009
                      Non-Argument Calendar            THOMAS K. KAHN
                                                           CLERK
                    ________________________

               D. C. Docket No. 06-04740-CV-LSC-W

SAMMY EDWARD SIMPSON, II,


                                                        Plaintiff-Appellant,

                               versus

ALABAMA DEPARTMENT OF HUMAN RESOURCES,
MARSHALL COUNTY DEPARTMENT OF HUMAN RESOURCES,
DEKALB COUNTY DEPARTMENT OF HUMAN RESOURCES,
ETOWAH COUNTY DEPARTMENT OF HUMAN RESOURCES,
JACKSON COUNTY DEPARTMENT OF HUMAN RESOURCES, et
al.,


                                                     Defendants-Appellees.


                    ________________________

             Appeal from the United States District Court
                for the Northern District of Alabama
                   _________________________

                         (February 11, 2009)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:

       Sammy Edward Simpson, II, brought this suit against Alabama Department

of Human Resources (“DHR”), Marshall County DHR, DeKalb County DHR,

Etowah County DHR, Jackson County DHR, and Jefferson County DHR claiming

that they had discriminated against him on the basis of a disability, i.e., due to his

disability, they would not employ him, in violation of the Rehabilitation Act of

1973 (the “Act”), 29 U.S.C. §§ 791 and 794. Simpson alleged that he (1) was a

person with a disability as defined in the Act, i.e., Attention Deficit Hyperactivity

Disorder (“ADHD”) and a Special Learning Disability (“SLD”), both of which

substantially limited one of his major life activities, (2) had a record of such

disability, and (3) was perceived by the defendants as having such disability.1 He

alleged that Marshall County DHR discharged him from his employment due to

this disability, his record of having this disability, or its perception that he had such

disability; thereafter, the other defendants’ refused to hire him on account of his

disability.

       The district court granted the defendants summary judgment on March 31,

2008, pursuant to the memorandum opinion and ordered it entered the same day.


       1
          At the same time, Simpson alleged that he was able to perform the essential functions
of a social worker employed by the defendants.

                                                2
The court assumed (1) that Simpson had ADHD and SLD, and that, under the Act,

ADHD and SLD are mental impairments, and (2) that learning and working are

major life activities. The court concluded, however, that Simpson failed to present

evidence establishing that these impairments substantially limited his ability to

learn, that they substantially limited one or more major life activities, and that the

defendants relied on a record of such impairments. Nor did the defendants

perceive him as disabled in any life activity. In sum, the court concluded that

Simpson failed to show that he was “disabled” as defined by the Act.

      Simpson now appeals the court’s judgment. As a threshold issue, we must

address the defendants’ argument that Simpson has abandoned his claim that he is

disabled with respect to the major life activity of working, because his brief

addresses only the district court’s findings with respect to the major life activity of

learning.

      “[A] party seeking to raise a claim or issue on appeal must plainly and

prominently so indicate. Otherwise, the issue – even if properly preserved at trial –

will be considered abandoned.” United States v. Jernigan, 341 F.3d 1273, 1283 n.8

(11th Cir. 2003). Passing references to issues are insufficient to raise a claim on

appeal – if the appellant “fails to offer argument on an issue, that issue is

abandoned.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.



                                            3
2005); see also Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6

(11th Cir. 1989). Simpson’s brief presents no argument challenging the district

court’s determination with respect to the major life activity of working. Simpson’s

claim that his disability limits such activity is accordingly abandoned.

      Simpson argues that the district court erred in concluding that, as a matter of

law, the evidence he presented was insufficient to establish that his mental

conditions significantly limited his ability to learn. To establish a prima facie case

of discrimination under the Rehabilitation Act, the plaintiff must show that he was:

(1) disabled or perceived to be disabled; (2) a qualified individual; and (3)

discriminated against on the basis of his disability. Ellis v. England, 432 F.3d

1321, 1326 (11th Cir. 2005). The standards for liability under the Act serve as

precedent for cases under the Americans with Disabilities Act, 42 U.S.C. § 12102,

and vice versa. See Cash v. Smith, 231 F.3d 1301, 1305 n.2 (11th Cir. 2000).

Under the federal regulations, an individual is “disabled” if he (1) has a physical or

mental impairment that substantially limits one or more of his major life activities,

(2) has a record of such an impairment, or (3) is regarded by his employer as

having such an impairment. Cash, 231 F.3d at 1305; see also 42 U.S.C.

§ 12102(2).

      In concluding that Simpson failed to establish for summary judgment



                                           4
purposes that his mental conditions had a significant limiting effect on his ability to

learn, the district court cited Simpson’s past academic success. Simpson contends

that the court erred, that he adduced evidence showing that this success was

dependent upon the accommodations, such as extended time, that he received from

organizations such as Vocational Rehabilitation. He points out, moreover, that the

court had before it evidence, such as his scores on tests conducted by the Alabama

Department of Rehabilitation Services, showing how his “processing speed” limits

him, as compared to others in the general population. Finally, he notes that

doctors, counselors, and other evaluators all considered these test results and

diagnosed him with a disability which substantially limits his ability to learn.

      The Act defines “disability” as “a physical or mental impairment that

substantially limits one or more major life activities.” 29 U.S.C. § 705(9)(B). This

definition of “disability” involves a three-step analysis. Rossbach v. City of

Miami, 371 F.3d 1354, 1357 (11th Cir. 2004). First, has the plaintiff established

that his condition constitutes a physical or mental impairment? See id. Second,

has he established that the life activity he claims has been limited is a “major life

activity.” See id. According to the regulations, “[m]ajor life activities means

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
(emphasis added). Finally, has the plaintiff established that the impairment

“substantially limits” the major life activity he has identified? See Rossbach, 371

F.3d at 1357. The term “substantially limits” means “[u]nable to perform a major

life activity that the average person in the general population can perform” or

“[s]ignificantly restricted as to the condition, manner or duration under which an

individual can perform a particular major life activity as compared to the condition,

manner, or duration under which the average person in the general population can

perform that same major life activity.” 29 C.F.R. § 1630.2(i)(1)(i), (ii).

      In determining whether an individual is substantially limited, the court

considers: “(1) the nature and severity of the impairment; (2) the duration or

expected duration of the impairment; and (3) the permanent or long term impact, or

the expected permanent or long term impact of or resulting from the impairment.”

Sutton, 185 F.3d at 1208-09 (citing 20 C.F.R. § 1630.2(j)(2)). The court considers,

in addition, any alleged disability “with reference to corrective [or mitigating]

measures.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 488, 119 S.Ct. 2139,

2149, 144 L.Ed.2d 450 (1999). The terms “major life activities” and “substantially

limits” are to be strictly interpreted “so as ‘to create a demanding standard for

qualifying as disabled. . . .” Garrett v. Univ. Of Ala. At Birmingham Bd. Of

Trustees, 507 F.3d 1306, 1311 (11th Cir. 2007) (quoting Toyota Motor Mfg., Ky.,



                                           6
Inc. v. Williams, 534 U.S. 184, 197, 122 S.Ct. 681, 691, 151 L.Ed.2d 615 (2002)).

       That a person is disabled means “that [the] person be presently – not

potentially or hypothetically – substantially limited.” Sutton, 527 U.S. at 482, 119

S.Ct. at 2146. “It is insufficient for individuals attempting to prove disability

status under this test to merely submit evidence of a medical diagnosis of an

impairment.” Toyota Motor Mfg., 534 U.S. at 198, 122 S.Ct. at 691. Rather, the

plaintiff must offer evidence “that the extent of the limitation [caused by the

impairment] in terms of their own experience . . . is substantial.” Id.

       Although the test results contained in Simpson’s Vocational Evaluation

Report may indicate that Simpson’s learning ability is somewhat limited in some

specific areas, they do not indicate that his overall ability to learn is substantially

limited. Simpson presented no evidence of the effect his conditions currently have

on his every day activities and, more specifically, his ability to learn. In sum,

Simpson has failed to establish that he suffers from a disability.

       Simpson challenges the court’s determination that he failed, as a matter of

law, to prove a record of an impairment. He asserts that he had a documented

record of his impairment, to-wit: a diagnosed learning disability, which, by

definition, substantially limits his ability to learn.




                                             7
      The relevant regulation defines “record of . . . impairment” as meaning that a

person “has a history of, or has been misclassified as having, a mental or physical

impairment that substantially limits one or more major life activities.” 29 C.F.R. §

1630.2(k) (1997). Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1229

(11th Cir. 1999). “The intent of this provision, in part, is to ensure that people are

not discriminated against because of a history of disability.” Id. “This part of the

definition is satisfied if a record relied on by an employer indicates that the

individual has or has had a substantially limiting impairment. . . . There are many

types of records that could potentially contain this information, including but not

limited to, education, medical, or employment records.”

      The district court was correct in concluding that Simpson failed to show that

his impairment substantially limited his ability to learn. The court had before it no

evidence that the defendants relied on a record of any such impairment. In short,

Simpson has no case of discrimination based on a record of impairment.

      Simpson’s final challenge to the district court’s summary judgment is that

the court erred in holding that he failed to introduce evidence from which a

reasonable jury could find that one or more of the defendants regarded him as

disabled.

      A person may be “disabled” under the Act if he is “regarded by” his



                                           8
employer as disabled, meaning that he

             (1) has an impairment that does not substantially limit a
             major life activity, but is treated by an employer as
             though it does; (2) has an impairment that limits a major
             life activity only because of others’ attitudes towards the
             impairment; or (3) has no impairment whatsoever, but is
             treated by an employer as having a disability as
             recognized by the [Rehabilitation Act].

Hilburn, 181 F.3d at 1230. “[F]or a plaintiff to prevail under this theory, he must

show two things: (1) that the perceived disability involves a major life activity; and

(2) that the perceived disability is substantially limiting and significant.”

Rossbach, 371 F.3d at 1360 (internal quotations omitted). “As with actual

disabilities, a perceived impairment must be believed to substantially limit a major

life activity of the individual.” Hilburn, 181 F.3d at 1230.

      The fact that Wayne Sellers, Director of the Marshall County DHR, may

have been aware of Simpson’s conditions while he was employed by the DHR was

clearly insufficient to establish that Sellers perceived him to have a disability.

Furthermore, Sellers’s comment regarding vocational rehabilitation clients in no

way indicates that Sellers terminated Simpson’s employment because he regarded

Simpson as having a disability, or even that he believed that Simpson was

substantially limited in his ability to learn. We therefore reject Simpson’s final

challenge. The judgment of the district court is, accordingly,



                                            9
AFFIRMED.




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