IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30007

Summary Calendar

HUI G. CHEN, 

 Plaintiff–Appellant,

v.

OCHSNER CLINIC FOUNDATION; OCHSNER CLINIC, a Professional 

Corporation,

 Defendants–Appellees.

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:13-CV-5808

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

In this employment discrimination case, the district court granted 

summary judgment to the defendants, Ochsner Clinic Foundation and Ochsner 

Clinic, a Professional Corporation (Ochsner). The plaintiff, Hui Guo Chen 

(Chen), appeals. We affirm.

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 5, 2015

Lyle W. Cayce

Clerk

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I

The following facts are not in dispute, unless otherwise noted. Chen, a 

native of China, began working for Ochsner in 1990. After many years as an 

equipment mechanic, he assumed responsibility in 2006 for the maintenance 

of the tube system at one of Ochsner’s hospitals. Because the tube system—

which transported medications, specimens, and other items between various 

locations in the hospital—required extensive maintenance, it was his “sole 

responsibility.”

When Chen’s work with the tube system began, his supervisor was 

Nicholas Sciambra. Sciambra gave Chen positive performance reviews in 

2008, 2009, and 2010, and rated him “Exceeds Expectations.” Even so, those 

evaluations did include suggestions for improvement. The 2008 and 2009 

evaluations contained generic comments that Chen should continue to “develop 

his skills” with the tube system. The 2010 evaluation went further, adding 

that “[i]n the last 12 months Chen has had some problems with trouble 

shooting different types” of tube-system problems and noting he “seems to lose 

his confidence and rely on . . . co-workers” when he encounters a problem he 

cannot resolve. Chen’s overall rating in that evaluation was 6.25, down from 

6.80 in 2008 and 2009. To protest the lower performance rating and critical 

comments in the 2010 evaluation, Chen initially refused to sign it.

Chen’s 2011 evaluation was completed by Gary Jallans, his new 

supervisor. That evaluation rated him as “Achieves Expectations,” with a 

performance rating of 4.85. According to the evaluation, Chen’s continued 

“problems trouble shooting the tube system” led the hospital to “bring in 

addition[al] help to resolve” tube-system problems. It further noted that Chen 

needed to “work on his communications skills so that he can speak . . . in a 

relaxed manner.” Attached to the evaluation was an “Employee Learning 

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Map” that required Chen attend an advanced training class on the tube system 

offered by the manufacturer at the hospital’s expense. 

In July 2011, Jallans and Sciambra met with Chen to discuss his 

evaluation. It did not go well. The facilities director, Michael Lawson, 

happened upon the meeting and heard a “loud discussion” prompted by a 

disagreement about Chen’s “Achieves Expectations” rating. The meeting 

ended early and Chen was sent to the employee health unit because he was 

feeling faint. Chen met twice the following week with Allison Atkinson, a 

human resources associate for Ochsner, to discuss the evaluation. Two more 

meetings with Lawson followed, but Chen continued to decline to sign the 

evaluation or agree to attend tube-system training. 

 Later that year, Chen injured his ankle at work. He filed a workers’

compensation claim and was on leave from September 2011 to November 2011. 

While Chen was on leave, the back-up tube-system technician, Eric Danos, 

took his place. Danos found what he and his supervisors believed were 

indications that the tube system was not properly maintained under Chen’s 

care; for example, Danos concluded that the system was missing eighty-nine 

tubes and forty-two more were cracked. To remedy these issues and prevent 

further problems, the supervisors instituted a number of requirements, 

including daily inspections of each of the hospital’s fifty-eight tube stations and 

systematic monthly reporting on the state of the tube system. 

Upon Chen’s return in November 2011, he met with Lawson to discuss 

the list of necessary maintenance on the tube system and the new inspection 

and reporting requirements. Lawson reported that Chen disputed the 

necessity of the repairs and again declined to attend the manufacturer’s 

training class. Later that month, Chen relented and agreed to participate in 

training. 

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Jallans issued Chen a “corrective action” on December 5, 2011, citing 

various instances of excessive tube-system downtime that he attributed to 

Chen’s failure to correctly diagnose problems. The corrective action noted 

“Chen is expected to be able to assess and accurately diagno[se] tube system 

problems” promptly. Chen disputed the factual basis for the reprimand and 

appealed. While that appeal was pending, Chen was placed on probation in 

connection with another dispute. In the course of responding to an after-hours 

call for assistance, Chen spoke to Jallans by telephone. According to Jallans, 

Chen refused to follow basic instructions that would have re-established a 

connection between the tube system computer and power station computer and 

allowed the tube system to be remotely monitored. Supervisors did not learn 

of the failure to reestablish the connection until the following morning. Chen 

disputed the accuracy of Jallans’s account, accused Jallans of trying to set him 

up, and appealed.

Ochsner denied Chen’s appeal of his first corrective action in January 

2012, noting that “[Chen’s] refusal to take direction from [his] direct supervisor 

and [his] continued disruptive behavior . . . [was] unacceptable.” The appeal 

of his probation was denied a month later; the denial concluded that “[Chen’s] 

manager provided [him] with clear direction of the steps that needed to be 

taken to resolve the shutdown and that [Chen’s] failure to follow said 

instructions resulted in unnecessary downtime,” which “compromise[d] 

[Ochsner’s] ability as an organization to deliver top quality care to [its] 

patients.”

In the weeks leading up to Chen’s termination, he informed Jallans that 

ankle pain sometimes bothered him as he performed the required daily 

inspections of the tube stations; Jallans responded that he should rest when 

that occurs and resume the inspections once he is able. In one twenty-five day 

period, Chen had performed only six of the required inspections. On April 19, 

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2012, Chen’s employment with Ochsner was terminated. The termination 

notice cited Chen’s receipt of multiple corrective actions and probation, as well 

as his prolonged refusal to agree to attend training.

Chen sued Ochsner in September 2013, alleging his termination was the 

result of discrimination. He brought claims for race and national origin 

discrimination, hostile work environment, and retaliation under Title VII of 

the Civil Rights Act of 1964,1 under 42 U.S.C. § 1981, and under the 

corresponding Louisiana law.2 He also brought claims under the Americans

with Disabilities Act3 and its Louisiana counterpart.4 The district court 

granted summary judgment on these claims to Ochsner and Chen timely 

appealed.

II

“We review a district court's grant or denial of summary judgment de 

novo, applying the same standard as the district court.”5 Summary judgment 

is appropriate “if 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.”6 If 

the nonmoving party “fails to make a showing sufficient to establish the 

existence of an element essential to that party’s case, and on which that party 

will bear the burden of proof at trial,” the moving party is entitled to summary 

judgment.7 To avoid summary judgment, the nonmoving party must supply 

 

1 42 U.S.C. § 2000e et seq. 2 LA. REV. STAT. § 23:301 et seq. 3 42 U.S.C. § 12101 et seq. 4 LA. REV. STAT. § 23:322 et seq. Chen also brought various state-law claims that are 

not at issue here; two were dismissed for failure to state a claim, while two others were 

dismissed without prejudice to allow a first-filed suit to proceed in state court.

5 Thomas v. Johnson, 788 F.3d 177, 179 (5th Cir. 2015) (quoting Robinson v. Orient 

Marine Co., 505 F.3d 364, 365 (5th Cir. 2007)).

6 FED. R. CIV. P. 56(a).

7 Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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“evidence on which the jury could reasonably find for the plaintiff.”8 Mere 

“conclusory allegations, speculation, [or] unsubstantiated assertions are 

inadequate to satisfy the nonmovant’s burden.”9

III

We first address Chen’s claims of national origin and race 

discrimination, hostile work environment, and retaliation brought under Title 

VII. This will also determine which of his claims are viable under 42 U.S.C. 

§ 1981 and Louisiana employment discrimination law, which are “governed by 

the same analysis.”10

A

Title VII makes it unlawful to “fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any individual with respect to 

his compensation, terms, conditions, or privileges of employment, because of 

such individual's race, color, religion, sex, or national origin . . . .”11 When the 

plaintiff cannot adduce direct evidence of intentional discrimination, courts 

apply the well-established framework set forth in McDonnell Douglas Corp. v. 

Green.12 Under that framework, the plaintiff “must carry the initial burden 

under the statute of establishing a prima facie case” of discrimination.13 To 

establish a prima facie case, the employee must demonstrate that he “(1) is a 

member of a protected group; (2) was qualified for the position at issue; (3) was 

discharged or suffered some adverse employment action by the employer; and 

(4) was replaced by someone outside his protected group or was treated less 

 

8 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

9 Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (citing 

Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994)).

10 DeCorte v. Jordan, 497 F.3d 433, 437 (5th Cir. 2007). 11 42 U.S.C. § 2000e-2(a)(1). 12 411 U.S. 792 (1973); see McCoy v. City of Shreveport, 492 F.3d 551, 556 (5th Cir. 

2007) (per curiam).

13 McDonnell Douglas, 411 U.S. at 802.

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favorably than other similarly situated employees outside the protected 

group.”14 If he does so, “[t]he burden then must shift to the employer to 

articulate some legitimate, nondiscriminatory reason” for the adverse 

personnel action.15 Once the employer articulates such a reason for the 

employee’s discharge, the employee bears the “ultimate burden of proving that 

the employer’s proffered reason is not true but instead is a pretext for the real 

discriminatory or retaliatory purpose.”16 “To carry this burden, the plaintiff 

must rebut each nondiscriminatory or nonretaliatory reason articulated by the 

employer.”17

We agree with the district court that Chen has not made out a prima 

facie case of national origin or race discrimination. Chen does not suggest that 

he was replaced by someone outside his protected group,18 and his assertions 

that he was treated less favorably than other similarly situated employees

outside his protected group is not supported by any evidence. In particular, 

Chen’s opposition to Ochsner’s motion for summary judgment does not identify 

any employees outside a protected group whose “circumstances, including their 

misconduct,” were “nearly identical,” yet who received more favorable 

treatment.19

To be sure, Chen did assert that “all of the white employees at Ochsner 

remained and the only two employees terminated from the facilities 

departement [sic]” were Chen and Quang Nguyen, a technician of Vietnamese 

 

14 Willis v. Cleco Corp., 749 F.3d 314, 320 (5th Cir. 2014) (citing McCoy, 492 F.3d at 

556). 15 McDonnell Douglas, 411 U.S. at 802.

16 McCoy, 492 F.3d at 557.

17 Id. (citing Laxton v. Gap Inc., 333 F.3d 572, 578 (5th Cir. 2003)). 18 Chen did allege in his complaint that he was written up as part of his supervisors’ 

“attempt . . . to get rid of the foreigner and replace him with a white guy,” but this allegation 

was merely conclusory, does not speak to Chen’s actual replacement, and is never supported

by reference to “particular parts of materials in the record,” FED. R. CIV. P. 56(c)(1)(A). 

19 Perez v. Tex. Dep’t of Criminal Justice, 395 F.3d 206, 213 (5th Cir. 2004).

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descent. But this does not suggest that the white employees were similarly 

situated to Chen; indeed, there is no evidence that any of those employees had 

a record of performance problems and insubordination similar to Chen’s. Chen

also asserted that he was subjected to disciplinary actions due to tube-system 

downtime for which other, white technicians were actually responsible. But 

since only Chen had primary responsibility for the tube system, his 

supervisors’ failure to discipline other technicians for tube-system outages does 

not amount to disparate treatment of similarly situated employees. In sum, 

the district court correctly found that Chen failed to make a prima facie case 

that his termination constituted disparate treatment.

B

We now turn to Chen’s hostile work environment claim. A hostile work 

environment claim will lie if the plaintiff can show his “work environment was 

so pervaded by discrimination that the terms and conditions of employment 

were altered.”20 A plaintiff must show he belongs to a protected group; was 

subjected to harassment based on membership in a protected group that 

“affected a term, condition, or privilege of employment”; and the employer 

“knew or should have known of the harassment in question and failed to take 

prompt remedial action.”21

Chen cites a litany of workplace incidents that, he says, create a genuine 

issue of fact as to whether he was subjected to a hostile working environment. 

As an initial matter, we note that most of the incidents alleged by Chen had 

no clear connection to his race or national origin: between approximately 2005 

and 2012, someone urinated in his work area while he was not present; Jallans 

passed gas in Chen’s work area before Jallans became his supervisor; pieces of 

 

20 Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013).

21 Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (quoting 

Ramsey v. Henderson, 286 F.3d 264, 268 (5th Cir. 2002)).

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scrambled egg were left in Chen’s desk drawer; Sciambra would use profanity 

with colleagues and then stop when Chen approached; a ceiling light fell to the 

ground in his work area; Sciambra called Chen a “rat”; an unknown substance 

was placed on Chen’s chair and telephone receiver; his telephone was moved 

without his permission; the sign on the tube system room door was replaced 

with a sign reading, “Keith and Steve’s Office”; and his boss’s office had a sign 

instructing callers not to knock if the door was locked. Chen’s only example of 

a possible reference to his race or national origin came in 2008, when Sciambra 

allegedly told Chen—who was planning a trip to China to visit family—that he 

would fire him if he saw him on television during the Olympic Games. But 

even this comment is not a derogatory reference to Chen’s national origin, and 

does not reasonably support an inference that he was subjected to harassment 

based on his membership in a protected group. As a result, the district court 

properly entered summary judgment for Ochsner on the hostile work 

environment claim.

Summary judgment was proper for another reason as well: the 

harassment to which Chen was subjected, however unwelcome, was not 

“sufficiently severe or pervasive to alter the conditions of [the victim’s] 

employment and create an abusive working environment.”22 Whether 

harassment is actionable requires “‘looking at all the circumstances,’ including 

the ‘frequency of the discriminatory conduct; its severity; whether it is 

physically threatening or humiliating, or a mere offensive utterance; and 

whether it unreasonably interferes with an employee’s work performance.’”23

 

22 See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).

23 Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998) (quoting Harris v. 

Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).

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Properly applied, this standard will “filter out complaints attacking ‘the 

ordinary tribulations of the workplace, such as the sporadic use of abusive 

language, [race]-related jokes, and occasional teasing.’”24

The occurrences alleged by Chen do not rise to this level. Chen correctly 

points out that a “regular pattern of frequent verbal ridicule” can give rise to a 

Title VII claim. But the conduct cited by Chen, to the extent that it was 

harassment at all, was neither regular nor frequent. Instead, it arose 

sporadically, and was merely offensive rather than threatening or humiliating. 

The district court thus correctly concluded that the harassment alleged by 

Chen was not so pervasive or severe as to “affect[] a term, condition, or 

privilege of employment.”

C

Chen also alleged that his termination constituted unlawful retaliation 

for protected Title VII activity. “A Title VII retaliation plaintiff must establish 

that: ‘(1) the employee engaged in activity protected by Title VII; (2) the 

employer took adverse employment action against the employee; and (3) a 

causal connection exists between that protected activity and the adverse 

employment action.’”25 “[O]pposing any practice made an unlawful 

employment practice” by Title VII is a protected activity for purposes of the 

anti-retaliation provision of the law.26

We agree with the district court that Chen has pointed to no evidence 

that substantiates his claim that his discharge was in retaliation for protected 

Title VII activity. Ochsner’s summary judgment memorandum argued that “it 

appears that [Chen] alleged that he was being discriminated against for the 

 

24 Id. at 788 (quoting BARBARA LINDEMANN & DAVID D. KADUE, SEXUAL HARASSMENT 

IN EMPLOYMENT LAW 175 (1992)).

25 Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015) (quoting Thomas v. 

Tex. Dep’t of Criminal Justice, 220 F.3d 389, 394 (5th Cir. 2000)).

26 42 U.S.C. § 2000e-3(a).

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first time on December 7, 2011.” Aside from a conclusory statement, 

unsupported by any citation to the record, that “[Chen] had previously made 

complaints that he was being discriminated against because of his national 

origin and race,” Chen did not dispute this claim.27 Thus, by the time of Chen’s 

first identified instance of protected activity, he had already refused for months 

to agree to attend required training, received performance evaluations critical 

of his technical skills and demeanor, and received a corrective action for 

excessive tube-system downtime. It is true that Chen’s actual termination 

came in the months following his complaints of discrimination, but since “[t]he 

record contains nothing connecting the allegedly protected activity and the 

alleged retaliation,” mere proximity in time, without more, cannot establish a 

prima facie case that the termination was retaliatory.28

D

 Chen also argues that summary judgment was improper as to his 42 

U.S.C. § 1981 claim because Ochsner did not specifically cite § 1981 in its 

summary judgment motion. “Because Ochsner did not initially put [him] on 

notice that it was seeking summary judgment on the 42 U.S.C. § 1981 claim,” 

Chen argues, “Ochsner did not meet its ‘responsibility of informing the district 

court of the basis for its motion.’”

We disagree. To begin with, Ochsner’s motion adequately informed the 

court, and Chen, that it was seeking summary judgment on the § 1981 claim. 

The motion itself “request[ed] that the Court grant[] Ochsner’s Motion for 

Summary Judgment on Plaintiff’s remaining claims, which 

include: . . . [n]ational origin . . . and race discrimination, hostile work 

 

27 See Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (“Rule 56 does not impose 

upon the district court [or the court of appeals] a duty to sift through the record in search of 

evidence to support a party's opposition to summary judgment.” (alteration in original) 

(quoting Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998))). 28 Zaffuto v. City of Hammond, 308 F.3d 485, 493 (5th Cir. 2002).

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environment and retaliation under Title VII . . . and the Louisiana 

Employment Discrimination Law.” That portion of the motion contained 

citations to Title VII and the Louisiana law in question, but no explicit 

reference or citation to § 1981. But in this context—and in view of the 

memorandum in support’s statement that “[s]ummary [j]udgment on all of 

Plaintiff’s remaining claims should be granted”—we decline to infer that the 

motion’s list of “include[d]” claims was meant to be exhaustive.29 In addition, 

Ochsner did aver—in a footnote of its memorandum discussing the equivalence 

of federal and Louisiana law for purposes of the motion—that “the analysis 

applicable to Plaintiff’s Title VII [and § 1981] claims also governs Plaintiff’s 

state claims.” The interpolation in brackets referring to § 1981 was supplied 

by Ochsner as it quoted a district court case in support of its proposition, after 

a lengthy discussion of the plaintiff’s burden of proof in Title VII and ADA 

cases, that “[t]he same analysis applies to Plaintiff’s state law claim of race 

and national origin discrimination and of disability discrimination.”

To be sure, our analysis might be different if the factual and legal 

grounds for summary judgment on the § 1981 claim were not adequately 

presented by the motion or if Chen had otherwise been prejudiced by Ochsner’s 

failure to cite § 1981.30 But the analysis of employment discrimination claims

under Title VII and § 1981 is “identical,” because “the only substantive 

differences” between the two statutes are “their respective statutes of 

limitations and the requirement under Title VII that the employee exhaust 

 

29 See BLACK’S LAW DICTIONARY 880 (10th ed. 2014) (defining “to include” as “to 

contain as a part of something”); see also id. (“The participle including typically indicates a 

partial list.”).

30 See Johnson v. Weld Cnty., 594 F.3d 1202, 1214 (10th Cir. 2010) (holding, where 

adequacy of notice was at issue in court’s sua sponte grant of summary judgment, that “even 

if such notice is lacking, we will still affirm a grant of summary judgment if the losing party 

suffered no prejudice from the lack of notice” (citing Scull v. New Mexico, 236 F.3d 588, 600-

01 (10th Cir. 2000))). 

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administrative remedies.”31 Each legal argument and putative dispute of 

material fact relevant to Chen’s § 1981 claim would thus be equally relevant 

to his Title VII claim, and Chen had every opportunity—and incentive—to 

raise those arguments in opposition to Ochsner’s motion for summary 

judgment. In addition, Chen requested and received leave to file a sur-reply 

once Ochsner’s reply removed any doubt as to whether it was seeking summary 

judgment on the § 1981 claim. We thus conclude that Chen was on notice that 

Ochsner was seeking summary judgment on that claim and was not prejudiced 

by Ochsner’s failure to cite § 1981 explicitly in its motion. Summary judgment 

was proper.

IV

Finally, Chen appeals the district court’s entry of summary judgment in 

favor of Ochsner on his claims of disability discrimination in violation of the 

Americans with Disabilities Act (ADA)32 and a corresponding Louisiana law.33

The ADA prohibits “discriminat[ion] against a qualified individual on the 

basis of disability in regard to job application procedures, the hiring, 

advancement, or discharge of employees, employee compensation, job training, 

and other terms, conditions, and privileges of employment.”34 A “disability,” 

for purposes of the statute, is “a physical or mental impairment that 

substantially limits one or more major life activities of such individual.”35 

Major life activities include, among many other things, walking and working.36 

An individual may also meet the disability requirement by demonstrating he 

 

31 Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005).

32 42 U.S.C. § 12101 et seq. 33 LA. REV. STAT. § 23:322 et seq. 34 42 U.S.C. § 12112(a). 35 Id. § 12102(1).

36 Id. § 12102(2)(A).

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was “regarded as having [a physical or mental] impairment.”37 When the 

plaintiff cannot proffer direct evidence of disability-based discrimination, the 

McDonnell Douglas burden-shifting framework applies.38 To establish a prima 

facie case of disability discrimination, the plaintiff must, among other things, 

“establish[] that . . . [h]e is disabled or is regarded as disabled . . . .”39

Louisiana law likewise prohibits employment discrimination “on the 

basis of a disability.”40 It defines “[p]erson with a disability” as a person with 

“a physical or mental impairment which substantially limits one or more of the 

major life activities, or has a record of such an impairment, or is regarded as 

having such an impairment.”41 “To defeat a motion for summary judgment 

against an employment disability claim” under Louisiana law, “the claimant 

must establish a prima facie case that . . . he has a disability, as defined by the 

statute . . . .”42

Although Chen labors to demonstrate that the inspection requirements 

instituted in his absence were unnecessary and introduced solely to furnish a 

pretext for his removal, he does not meaningfully dispute the holding below. 

The district court, after summarizing the legal standard governing 

disability-based discrimination claims, held that “Chen has not established 

that he was disabled.”

Chen’s opening brief on appeal recognizes—as it must—that a “threshold 

requirement in any case brought under the ADA is a showing that the plaintiff 

suffers from a disability protected under the Act.” But he does not argue that 

 

37 Id. § 12102(1)(C); see also id. § 12102(3)(A).

38 McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279 (5th Cir. 2000) (citing 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). 39 Id. 40 LA. REV. STAT. § 23:323.

41 Id. § 23:322(3).

42 Lindsey v. Foti, 2011-0426, p. 6 (La. App. 1 Cir. 11/9/11); 81 So. 3d 41, 44.

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the district court’s reasoning was flawed, suggest how his sprained ankle met 

the statutory definition of disability, or otherwise demonstrate that a genuine 

issue of material fact existed as to whether he was disabled. He merely offers 

this: “Chen alleges his work related left ankle injury sustained in September, 

2011, is a disability under the ADA and that he is declared disabled as of 

October 2012. Plaintiff was suffering from this same injury at the time he was 

working for Ochsner.” That passage of his brief contains a footnote: “Exhibit 

25, medical examiner certificate of mobility impairment.” Although the 

meaning of that footnote is not altogether clear, we note that an identical 

passage—with an identical footnote—appears in Chen’s opposition to 

summary judgment filed in the district court. There, Exhibit 25 was Chen’s 

October 2012 application for a disabled parking permit, signed by a medical 

examiner. As the district court explained, that application was not 

contemporaneous with the events in question and in fact, plaintiffs’ medical 

examination records during the relevant period yield no indication he was 

disabled.

As the appellant, Chen was required to include in his brief his 

“contentions and the reasons for them, with citations to the authorities and 

parts of the record on which the appellant relies.”43 A point asserted on appeal, 

but not “adequately briefed,” is waived.44 Here, Chen has “[made] a conclusory 

argument without addressing any aspects of the district court’s opinion” and 

has “therefore waived review of [his] argument.”45 Even had the issue not been 

 

43 FED. R. APP. P. 28(a)(8)(A).

44 United States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (quoting Knatt v. 

Hospital Serv. Dist. No. 1 of E. Baton Rouge Parish, 327 Fed. Appx. 472, 483 (5th Cir. 2009)). 45 Test Masters Educ. Servs., Inc. v. Robin Singh Educ. Servs., Inc., No. 13-20250, 2015 

WL 4997705, at *10 (5th Cir. Aug. 21, 2015); see also Coury v. Moss, 529 F.3d 579, 587 (5th 

Cir. 2008) (deeming argument abandoned when appellant “present[ed] no argument to 

explain how [the cases it cited] constitute[d] authority” for its assertion). 

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waived, Chen’s mere references to an ankle injury are insufficient to create a 

genuine issue of material fact as to his alleged disability, especially in view of 

his acknowledgment in his opening brief that upon returning to work he “was 

able to perform the job the same as he was prior to his injury.”

* * *

For the foregoing reasons, we AFFIRM the judgment of the district court.

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