IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 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

United States Court of Appeals

Fifth Circuit

F I L E D

July 1, 2013

Lyle W. Cayce

Clerk

* 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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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

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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

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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 disabilitydiscrimination 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).

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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. 

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