* Pursuant to Local Rule 47.5, the court has deter mined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40107

_____________________

LYNN M. PAULSEN,

Plaintiff - Appellant,

versus

BEYOND, INC.,

Defendant - Appellee.

________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(4:94-CV-22)

________________________________________________

June 18, 1996

Before POLITZ, Chief Judge, WIENER and BARKSDALE, Circuit Judges.

PER CURIAM: *

The critical issue in Lynn M. Paulsen's em ployment

discrimination action is whether, under the Americans with

D isabilities Act (ADA), 42 U.S.C. § 12102(2)(C), Pauls en was

"regarded" by her employer, Beyond, Inc., "as having

... an

impairment" (cancer) that "substantially limit[ed] one or more of

[her] major life activities". For this challenge to the summary

judgment awarded Beyond as to claimed violations of Title VII and

the ADA, we conclude that a material fact issue does not exist for- 2 -

either claim, and that Beyond is entitled to judgment as a matter

of law. Therefore, we AFFIRM.

I.

Paulsen was employed by Beyond from September 1991 until late

October 1993. Beyond sold electronic mail software, and Paulsen

served as a regional sales manager. In general, she sold Beyond's

product within an eight-state region and helped her customers, as

well as resellers, to u se the product. Although her title was

manager, Paulsen did not supervise other sales employees; however,

she did supervise an eng ineer who provided technical support to

Paulsen and her customers . Of Beyond's seven regional sales

managers, Paulsen was the only female.

Prior to her employment with Beyond, Paulsen had a form of

cancer, which she believed was related to her mother's use during

pregnancy of the drug diethylstilbestrol (DES). This had required

removal approximately ten years before she began work with Beyond

of, among other things, several of her r eproductive organs.

Believing t his experience to be "a strong statement of her

determination", Paulsen disclosed her previous condition to Beyond

before being hired, including her inability to have children. On

the other hand, Paulsen was in good health when hired.

As hereinafter discussed, Paulsen was a bsent from work from

mid-August 1993 until her termination that October. While the

summary judgment evidence is conflicting as to some aspects of that- 3 -

summer, it is apparent at the very least that, by this point,

tensions were forming surrounding Paulsen's position at Beyond.

For example, while the evidence conflicts as to whether Paulsen was

criticized directly by her supervisors, the uncontroverted

deposition testimony of Craig Millard was that, as early as June,

he had been hired to search for someone to fill Paulsen's role.

In mid-August, Paulsen informed her supervisor, Mike Allen,

that she was ill, was unable to work, and was scheduled for medical

tests. On September 10, she contacted Allen by e-mail to inform

him of her medical status, stating that, although she required

surgery to remove scar tissue obstructing her small intestine, the

surgery would be postponed in order for her to attend her

grandmother's funeral; that the rescheduled surgery would take

place the following week; and that she anticipated only a three to

five day recovery.

A week later, Paulsen contacted Beyond's chie f financial

officer by facs imile mail regarding her absence due to her

hospitalization and the death of her family member in order to

provide him with necessary documentation for disability pay. And,

at the end of September, Paulsen spoke with Allen by telephone to

discuss both her health and the status of her business. According

to Paulsen, during their conversation, Allen inquired, "You used to

have cancer, didn't you? Aren't you afraid it's going to come

back?"- 4 -

On October 5, Beyond hired another person to be the regional

sales manager for the territory Paulsen handled. In her

deposition, Paulsen stated that she had heard a rumor that Allen

"had an old buddy friend of his from [another] Corporation that he

was thinking about hiring for [her] region" . That Thursday,

October 7, Paul Guerin telephoned Paulsen to inquire about her

status, and asked Paulsen about her prior cancer and whether she

was concerned that her current problems were related. (By October,

Guerin had assumed the position that had been held by Mike Allen,

and had become Paulsen's supervisor.) Paulsen did not return to

work the next day (Friday), but spoke again with Guerin by

telephone to inform him that she was ready to return that Monday,

October 11.

G uerin and Paulsen spoke again on Sunday, October 10; he

informed her that Beyond did not want her to return to work and

suggested that they nego tiate a mutually acceptable separation.

Paulsen asked Guerin to explain why Beyond wanted to terminate her

employment, and he cited her below-goal s ales figures, tardy

expense reports, and tardy and inaccurate sales projection reports.

Guerin asserted, but Paulsen denied, that these matters had been

discussed previously with her by her former supervisor, Mike Allen.

No agreement was reache d, and Paulsen filed this action in

February 1994 under Title VII and the ADA. The district court

granted Beyond's motion for summary judgment on each claim.

II.- 5 -

Paulsen contests the summary judgment. It goes without saying

that we review it de novo

, a pplying the same standard as the

district court: the evide nce, and reasonable inferences from it,

are considered in the light most favorable to the nonmovant; and

the "judgment is proper when no issue of material fact exists and

the moving party is entitled to judgment as a matter of law".

Dutcher v. Ingalls Shipbuilding

, 53 F.3d 723, 725 (5th Cir. 1995);

F ED

. R. C IV

. P. 56. "[T]he substantive law will identify which

facts are material", and "[a] dispute about a material fact is

`genuine'

... if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party". A nderson v. Liberty

Lobby, Inc. , 477 U.S. 242, 248 (1986).

No authority need be cited for the rule that we consider only

the summary judgment record that was before the district court. In

that regard, Beyond moved in district court to strike much of

Paulsen's summary j udgment evidence on grounds that parts of her

affidavit were based on facts of which she had no personal

knowledge, or were inadmissible hearsay, or were conclusory, or

conflicted with her deposition; and that exhibits were not properly

authenticated. The court granted the motion in part, and Paulsen

challenges this ruling.

The court struck the following: (1) Pau l sen's statements

regarding employment negotiations with other employees as to which

she had no personal knowledge; (2) her statement regarding her- 6 -

status as a national account manager, noting that it could not

qualify as an admission of a party opponent because Paulsen failed

to identify the declarant; (3) her recitation of statements made by

former employees, which were hearsay; (4) notes on her sales

meetings and the text of an e-mail message, the substance of which

is duplicated elsewhere in the summary judgment evidence, because

Paulsen failed to supply the needed facts to qualify docume ntary

evidence under the hearsay rule; and (5) portions of her affidavit

and that of a co-worker that contained conclusory statements. We

need not determine whether the court erred in striking this part of

the record, because none of that evidence is sufficient to create

a material fact issue as to either claim.

A.

It is undisputed that Paulsen has satisfied her initial burden

of presenting a prima facie case for a Title VII claim. At issue

is whether she fails to satisfy her burden of creating a material

fact issue that Beyond's explanation was not the real reason for

her termination and that unlawful discrimination motivated Beyond.

See

, Bodenheimer v. PPG Industries, Inc.

, 5 F.3d 955, 957 (5th Cir.

1994).

As its basis for termination, Beyond relies upon (1) Paulsen's

failure to achieve sales quotas; (2) her failure to properly and

timely complete sales projection reports; (3) her failure to timely

submit expense repo rts; (4) her inaccessibility to customers and- 7 -

supervisors; (5) her failure to return their telephone calls; and

(6) customer complaints. And, Beyond asserts that Paulsen has not

created a material fact issue as to the required discriminatory

motive.

P aulsen contends that the following creates a material fact

issue on motivation: (1) she was the only female regional sales

manager; (2) she was ranked second in sales on a monthly report,

yet was dismissed when those male sales managers below her were

retained and not disciplined for low sales; (3) she was fired by,

and replaced by, males; (4) her co-worker stated that Paulsen had

been humiliated in a meeting in a manner the co-worker described as

sexist; (5) early in her tenure with Beyond, it was unresponsive to

her complaints regarding sexual harassment by another employee; and

(6) two male employees were not fired, although they were away from

work for extended periods due to illness. As discussed below, we

agree with the district court that, on this record, a material fact

issue does not exist as to whether Paulsen's gender was a factor in

her dismissal.

That Paulsen is female and was replaced by a male merely

establishes her prima facie ca se (which is undisputed) and is

insufficient to create a materi al fact issue on discriminatory

motive.

Paulsen's contention regarding other salespeople not being

disciplined is not borne out by the record. She admitted that one- 8 -

person was disciplined for low sales and that another, a regional

sales manager of si milar seniority, was also dismissed. Both

persons out-sold Paulsen from January through August 1993. Two

other sales managers, each of whom occupied the position for a

shorter period than Paulsen, were fired for low sales, even though

their sales were higher than Paulsen's at the time of their

discharge.

There is no evidence linking Paulsen's being harassed by her

fellow employee to he r termination years after the resolution of

the episode, and she admits that the incidents ceased after she

complained to her supervisor, Mike Allen. Moreover, the employee

who was the subject of the complaints was discharged.

The only evidence regarding allegedly sexist remarks made to

Paulsen at a sales meeting is the opinion of a fo rmer fellow

employee that the comments were of that nature. Paulsen offered no

evidence linking these remarks, alleged to predate her termination

by a year, to her dismissal. This is insufficient to create a fact

issue on discriminatory motive. S ee Wilson v. Belmont Homes, Inc.

,

970 F.2d 53, 57 (5th Cir. 1992) (plaintiff failed to satisfy burden

of proof on discriminatory motive when she presen ted evidence of

employer comment that plaintiff's was "a man's job" but failed to

tie comment to motive for firing).

The male employees whom Paulsen asserted were absent due to

illness neither occupied regional sales manager positions as did- 9 -

Paulsen, nor did they suffer similar illnesses. Their experiences

also do not suffice to create a fact issue regarding discriminatory

motive. S ee generally, Florence v. Frank

, 774 F. Supp. 1054 (N.D.

Tex. 1991) (plaintiff failed to survive summary judgment on

discrimination claim where he compared employer's treatment of him

t o treatment of employee who suffered different injury becaus e

employees were not similarly situated).

While Paulsen offers facts that would suggest Beyond was

pleased with her work (customer compliments, Beyond's request that

she conduct important meet ings), these do not create a material

fact issue that the real reason for her termination was her gender.

As stated, summary judgment was proper as to the Title VII claim.

See generally

, Rhodes v. Guiberson Oil Tools

, 75 F.3d 989, 994 (5th

Cir. 1996) (en banc) (instructing that, in comparable area of ADEA

law, plaintiff can avoid summary judgment if evidence taken as

whole (1) creates fact is sue as to whether employer's stated

reasons actually motivated actions, and (2) creates reasonable

inference that [gender] w as a determinative factor in actions of

which plaintiff complains).- 10 - B.

A person is "disabled" under the Americans with Disabilities

Act, 42 U.S.C. § 12101, et. seq. , if she suffers any one of three

alternatives:- 11 - (A) a physical or mental impairment that

substantially limits one or more of the

major life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102 (2).

Paulsen, most belatedly in her repl y brief, claims ADA

coverage only as to the third alternative, "being regar ded as

having such an impairment". As to the district court's conclusion

that ADA covera ge was lacking, Paulsen's opening brief on appeal

does not adequately brief this point. While she does urge us at

length to conclude that the district court improperly concluded

that Beyond's inquiries about her condition were not sufficient to

establish discriminatory intent

, Paulsen does not adequately brief

whether those same inquiries, combined with other summary judgment

evidence, were sufficient to establish that Beyond regarded Paulsen

as disabled

. Only in her reply brief does she finally address the

failure to prove ADA coverage under the "regarded as" provision,

saying only that (1) she did not claim to be disabled, but rather

that she was perceived to be disabled; (2) that what was required

to establish a prima facie case under this provi sion "created

probl ems for the Trial Court"; and (3) that, in a "regarded as"

case, typical standards do not apply. Needless to say, this

discussion does lit tle to frame a cogent issue for our

consideration; and, on this basis alone, we could affirm summary- 12 -

judgment on the ADA claim. S ee F ED

. R. A PP

. P. 28(a)(6); e.g.

,

Weaver v. Puckett , 896 F.2d 126, 128 (5th Cir.) (noting that Rule

28 require s that appellant's argument contain reasons and

supporting authority appellant deserves relief requested, and

holding that, because appellant failed to argue point in body of

brief, argument considered abandoned), cert. denied , 498 U.S. 966

(1990).

In any event, as the district court concluded, Paulsen fails

to demonstrate that she is covered by this statutory provision

because she offered no evidence of Beyond's "perception of the

limiting effects" of her supposed recurrence of cancer. The EEOC

regulations define "regarded as having such an impairment" as

follows:

(1) Has a physical or mental impairment that

does not substantially limit major life

activities but is treated by a covered entity

as constituting such a limitation;

(2) Has a physical or mental impairment that

substanti ally limits major life activities

only as a result of the attitudes of others

toward such impairment; or

(3) Has none of the impairments defined in

paragraph (h)(1) or (2) of this section but is

treated b y a covered entity as having a

substantially limiting impairment.

29 C.F.R. § 1630.2(l).

Because Paulsen maintains that she did not have an

"impairment" (did no t have cancer), she must satisfy the

regulation's third alternative: that Beyond "treated ... [her] as- 13 -

having a substantially limiting impairment". We agree with the

district court that, to establish ADA coverage under this part,

Paulsen must do far more than simply assert that Beyond believed

she was suffering a recurrence of cancer. She must create a

material fact issue that Beyond treated her as if the supposed

cancer substantially limited a major life activity.

In its summary judgment motion, Beyond asserted that Paulsen

had failed to present a material fact issue as to whether she was

"disabled" within the m eaning of the ADA. In response to the

motion, Paulsen addressed the "limiting eff ects" aspect of her

claim with only a parenthetical, conclusory statement that

"[c]ancer is an obvious disability

- particularly where it has

required removal of important bodily organs and has limited various

major life functions such as childbirth and urinary functions".

Obviously, this conclusory statement primarily describing a

previous condition, without more, is insufficient to establish ADA

coverage. Moreover, cancer is not p er se a disability; rather, in

individ ual cases, it may not substantially limit a major life

activity. See

, Ellison v. Software Spectrum, Inc

.,

__ F.3d

__ (5th

Cir. 1996), 1996 WL 284969 (finding plaintiff's cancer did not

substantially limit any major life activity and thus was not a

disability).

As record support for the conclusory statement that "[c]ancer

is an obvious disability

- particularly w here it has required- 14 -

removal of important bodily organs and has limited various major

life functions such as childbirth and urinary functions", Paulsen

cites to the following portion of her affidavit:

During the years 1978 through 1983, I had many

organs removed because of a diagnosis of

cancer. My mother had taken DES during her

pregnancy with me to prevent miscarriage, but

this drug was later found to cause clear-cell

carcinoma polyps and other bad side effects to

offspring. I had the following organs

removed: Fallopian Tubes, Ovarie s, Uterus,

Appendix, Gallbladder, parts of muscle, liver,

and abdomen wall. This resulted in my being

unable to bear children. I also have problems

with urinary incontinence, and I have no

natural hormones which results in an inability

to regulate my body temperature, among other

things.

As hereinafter discussed, this evidence is insufficient to satisfy

Paulsen's burden under Rule 56 and the law of our circuit.

As the party who did not bear the burden of proof at trial on

coverage under the ADA, Beyond was not required to produce evidence

negating the existence of a material fact. Instead, its burden was

to p oint out the absence of evidence supporting Paulsen's case.

E.g.

, Latime r v. Smithkline & French Laboratories , 919 F.2d 301,

303 (5th Cir. 1990). Accordingly, once Beyond submitted a properly

supported summary judgment motion, in which it pointed, inter alia

,

to the lack of evidence supporting Paulsen's "r egarded as"

contention, Paulsen was required to designate the specific facts in

the record that created a material fact issue.- 15 -

Assuming arguendo that Beyond believe d that Paulsen had

cancer, Paulsen did not present any evidence that Beyond t reated

her as having cancer that substantially limited a major life

activity

. Standing alone, the above-quoted portion of her

affidavit, upon which she relies for her claimed ADA coverage, does

not address this critical point. Nor does Paulsen explain how any

of the record evidence created a material fact issue on whether

Beyond so treated her. Nor are we required to attempt to weave

evidence together for her. Rule 56 does not impose upon us a duty

to survey the ent ire record in search of evidence to support the

nonmovant's position. S ee Forsyth v. Barr

, 19 F.3d 1527, 1537 (5th

Cir.) (quoting Skotak v. Tenneco Resins, Inc.

, 953 F.2d 909, 915

n.7 (5th Cir.), cert. denied , 506 U.S. 832 (1992)), cert. denied

,

__ U.S.__, 115 S. Ct. 98 (1994).

Alternatively, even attempting to piece together the evidence

to create the requisite material fa ct issue, we are unable to do

so. The only record evidence that we can hypothesize to be even

arguably relevant to whether Beyond treated Paulsen as having

cancer that substantially limited any of her major life activities

was: (1) Guerin's admissions in his deposition that he questioned

Paulsen about whether she was concerned that the heal th problems

she experienced in 1993 were in some way related to her previous

c ancer; (2) Paulsen's descriptions in her affidavit of the

sometimes severe symptoms of her pri or cancer; and (3) Guerin's- 16 -

belief at the time, as he described in his deposition, that Paulsen

would be too sick to return to work.

As stated, to create a material fact issue on this point, the

evidence must demonstrate that Beyond treated Paulsen, not merely

as if she had cancer, but as if she had cancer that substantially

limited a major life activity. E ven assuming that the problems

caused by Paulsen's prior cancer, as described by Paulsen in her

affidavit, would suffice to demonstrate the limitation of a major

life act ivity, a nd even further assuming that Guerin's inquiry

could establish tha t Beyond treated Paulsen as if her present

inability to return to work established that she was suffering a

recurrence of that same cancer , Paulsen presents no evidence that

Beyond appreciated the gravity of her previous cancer in such a way

that it believed it to have substantially limited a major life

activity.

Neither logic nor the ADA compel the conclusion that one who

believes a person to be suffering from cancer must believe ipso

facto that the cancer substantially limits a major life activity.

Paulsen simply does not establish, nor can we deduce, in what way

Beyond treated Paulsen as if she suffered from any illness that had

the requisite limiting effects to trigger ADA cov erage. Because

Paulsen failed to establish a material fact issue as to ADA

coverage, summary judgment was proper on that claim.

III.- 17 -

For the foregoing reasons, the judgment is

AFFIRMED.