### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-31254 Summary Calendar

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 brough t s uit against her employer for discrimination and r e taliation in violat i on o f the Americans with D isabilities A ct. Summary judgment was granted to the defendant. We AFFIRM. Conner began working for t h e L o u isiana Department o f Health and Hospitals (“the Department”) in May 1977. In July 1999, C onner s u f f ered an injury as the result of a s lip and fall in a p a rking lot. At t he time, she h eld the U n i t e d S t a te s C o u r t o f A p p e al s

F i f t h C i rc u i t 

### F I L E D J uly 1, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-31254 Document: 00512293281 Page: 1 Date Filed: 07/01/2013No. 12-31254

position of a recreation specialist. Conner took a medical leave of absence and returned to work i n November of that year. In M a rch 2000, she slipped while

e xiting a vehicle and s uffered a second injury. The Department authorize d Conner to remain absent on leave without pay through July 16, 2000. Conner later r eturned to work, having receive d a physician’s release to resume employment with “light duty” responsibilities on July 17. On July 24, Conner met with per s o n n e l f r om human resources and a manager to discuss these responsibilities; Conner s tates t he Department “sent her home with a sample duty list

. . . to give to h er doctor for approval.” A month later, Conn e r submitted a complaint t o the Equal Employment Opportunity Commission, alleging the Department discriminated against h er becau s e o f a disability. On August 30, the Department mailed Conner a letter and directed her t o return to work no l ater than September 7. Conner did so but apparently left again before September 13. The Department deliver e d a s e c ond letter, directing her to return to work immediately. The l etters r efer e nced two different treating physicians’ releases for Conner to r e turn to work without restrictions. Conner compl i e d 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 t o r e m ove you from your p o sition as Therapeutic Recreation Service Specialist

. . . . The reason for this proposed a c t i o n is that you a re unable to perform the e ssential functions of your position according to recent medical certification, and y ou have exhausted a ll s ick a nd annual leave and have been on l eave without pay since 09/22/2000. Additionally, you exhau s ted a ll Family and Medical L eave Act (FMLA) leave as of 06/28/2000. The d u t i e s of

2 Case: 12-31254 Document: 00512293281 Page: 2 Date Filed: 07/01/2013No. 12-31254

your position must be carried o ut o n a full-time basis without further interruption.
Conner responded on O c t o ber 10. She w rote 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 C onner’s own admission, the Department r emoved Conner from her position because of the absenteeism. On March 19, 2002, Conner p ursued cl a ims in part for disability discrimination and retaliation in the U nited States District Court for the Middle District of Louisiana. The court granted summary judgment i n favor of the Department on these two claims, and Conner appealed. DISCUSSION We review the g r ant o f summary judgment de novo . Kemp v. Holder , 610 F.3d 2 31, 234 (5th C i r . 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 a ction against the Department in 2002. Significant amendments to t h e A mericans with Disabilities A ct w e re adopted in 2008. Kemp , 610 F.3d at 2 36. Because the 2008 ame n d m e n t s a re not applied retroactively, the pre-amendment statute controls. Id. With regard to her disability-discrimination claim, Conner con t e n ded that she w as w ithin a protected class of the Americans with Disabilities Act because she wa s “ r e g a rded as” having a physical impairment by the Department. The Department argued in its m otion for su m m a ry judgment that no evidence
sup p o r t e d s u ch a f

inding. I n response, Conner pointed to the l etters in which

3 Case: 12-31254 Document: 00512293281 Page: 3 Date Filed: 07/01/2013No. 12-31254

the Department referenced h er inabi l i t y “to perform the essential f unctions of [her] position according to recent medical certification.” The district c ourt rejected Conner’s argument b ecause t he letters referred only to one position that the Department alle g e d l y b elieved Conner could not perform because of her impairment. Applying pre-2009 l aw, the court c orrectly explained that Conner’s theory of re c o v e r y would require her to show the Department regarded her as having “a physical or me n t a l i mpairment that substantially limits o ne or more of the m ajor 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 w ork i n a broad c lass of jobs.” Id. a t 491. Because C onne r f a i l e d to p resent or identify evidence to support her rationale for recovery, w e agree t hat s ummary 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 c o n t ended t he Department retaliated against her by removing her from her position within t wo m onths of h er disabil i t y discrimination filing with the Equal Employment Opportunity Commission. A prima facie s howing of unlawful retaliation requires Conner to establish that she e ngaged i n a p r otected activity, the Department took an adverse employment action against her, and a causal connection exists between the

1 On ap p eal, Conner d oes n ot d is p ute that s he alleged only that the Dep artm ent regard ed her as s ubs tantially lim ited in the m ajor lif e activity of w ork ing, as op p os ed to s om e other m ajor lif

e activity. A ccord ingly, by f ailing to p res ent and brief argum ents that s he w as regard ed as having s om e other lim itation, Conner has w aived the argum e n t on ap p eal. Roberson v . A l l tel Inf

o. Serv s. , 373 F

. 3d 647, 654 n. 9 ( 5th Cir. 2004) ; Yohey v . Col l i ns , 985 F

. 2d 222, 224- 25 ( 5th Cir. 1993)

. 4 Case: 12-31254 Document: 00512293281 Page: 4 Date Filed: 07/01/2013No. 12-31254

activity and action. Seaman v. CSPH , I n c . , 1 79 F.3d 297, 301 (5th Cir. 1999). Once established, the Department m ust then provi d e a legitimate, nondiscriminatory reason for taking the adverse a ction. Id. If provided, Conner

“ m u s t adduce s ufficient e vidence that the proffered reason is a pretext f or retaliation.” Id. To prevail on her claim, Conner “must show that ‘but for’ the protected activity, the adverse employment action would n ot have occurred.” I d. The district court determined Conner established a prima facie case of retaliation; then t h e court accepted the Department’s reason of absenteeism as legitimate and nondiscriminatory. The court granted summary judgment because Conner failed to o f f e r evidence that such r eason was pretext for discrimination. We will assume t hat Conner made o ut a prima facie c a s e, and w e agree that the Department’s reas o n w a s l e g i t i m a t e and nondiscriminatory. On appeal, Conner do e s not dispute that the evidence s hows she was r emoved from her position because of her absenteeism. She points to no additional evidence that shows this reason was pretext. Accordingly, summary judgment w a s p roperly 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 Case: 12-31254 Document: 00512293281 Page: 5 Date Filed: 07/01/2013