FILED

U.S. COURT OF

APPEALS

ELEVENTH CIRCUIT

JUNE 6, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-14944

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D. C. Docket No. 03-00754 CV-J-TEM

ROY HOWARD SMITH, JR.,

Plaintiff-Appellant,

versus

HCA, INC., a Tennessee corporation

d.b.a. Memorial Hospital Jacksonville,

MEMORIAL HEALTHCARE GROUP, INC., a

Florida Corporation d.b.a. Memorial Hospital Jacksonville,

Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (June 6, 2006)

Before BLACK, PRYOR and COX, Circuit Judges.

PER CURIAM:

Roy Howard Smith (“Smith”) appeals the district court’s grant of summary

judgment in favor of HCA, Inc. (“HCA”) on the basis that it was not a proper
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defendant in the case, as well as the district court’s grant of summary judgment in

favor of Memorial Healthcare Group (“Memorial”) on Smith’s claims under the

Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1140, and the

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

challenges the court’s jury instructions on his claim under the Florida Whistleblower

Act, § 448.101 Florida Statutes, and the court’s refusal on hearsay grounds to admit

an investigative report.

After reviewing the relevant facts and the law, we find no reversible error.

First, it was not error for the district court to dismiss at the summary judgment stage

all of Smith’s claims against HCA. Smith offered no evidence beyond his own bare

assertions that HCA exercised any control over Memorial’s personnel decisions, and

HCA therefore cannot be held liable for those decisions. See Bristol v. Bd. of County

Com’rs, 312 F.3d 1213, 1218 (10th Cir. 2002).

As to Smith’s challenge to the district court’s failure to give his requested jury

instructions, the judge offered Smith’s counsel an opportunity to object to the

instructions in their final form before giving them to the jury. See Fed. R. Civ. Pro.

51(b). Smith did not object. Thus, this alleged error is not preserved for review on

appeal. See Fed. R. Civ. Pro. 51(c).
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Smith’s challenge to the judge’s exclusion of the investigative report also fails.

Smith never authenticated the report for admission, and the report was not a certified

copy of a public record exempt under Federal Rule of Evidence 902(4) from the

authentication requirements of Federal Rule Of Evidence 901(a). Thus, it was

properly excluded.

Finally, Smith appeals the district court’s grant of summary judgment in favor

of Memorial on his claims of retaliation under ERISA and discrimination under the

ADA. Both of these claims stem from the reorganization of his duties, eliminating

his managerial responsibilities for Memorial’s child care facility and enlarging his

responsibilities over Memorial’s cardiac catheterization facility and its physical

rehabilitation facility. Smith offered no direct evidence of discriminatory intent.

Moreover, even assuming that Smith put forth sufficient circumstantial evidence to

make out a prima facie case of retaliation under ERISA and discrimination under the

ADA, the district court did not err in granting Memorial’s motion for summary

judgment. Memorial advanced a legitimate, non-discriminatory reason for its actions

in restructuring Smith’s duties–that it wanted Smith to oversee the expansion of

Memorial’s cardiac unit–and Smith offered no evidence that this reason was

pretextual. See, e.g., Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004). 
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We therefore affirm the district court’s grant of summary judgment to

Memorial and HCA.

AFFIRMED.