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 employment
discrimination action is whether, under the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12102(2)(C), Paulsen 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
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. 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 use the product. Although her title was
manager, Paulsen did not supervise other sales employees; however,
she did supervise an engineer 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 reproductive organs.
Believing this 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 absent from work from
mid-August 1993 until her termination that October. While the
summary judgment evidence is conflicting as to some aspects of that
- 2 - 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 chief financial
officer by facsimile 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?"
- 3 - 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.
Guerin 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 negotiate a mutually acceptable separation.
Paulsen asked Guerin to explain why Beyond wanted to terminate her
employment, and he cited her below-goal sales 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 reached, 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.
- 4 - Paulsen contests the summary judgment. It goes without saying
that we review it de novo, applying the same standard as the
district court: the evidence, 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);
FED. R. CIV. 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". Anderson 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 judgment 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) Paulsen's statements
regarding employment negotiations with other employees as to which
she had no personal knowledge; (2) her statement regarding her
- 5 - 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 documentary
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 reports; (4) her inaccessibility to customers and
- 6 - 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.
Paulsen 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 case (which is undisputed) and is
insufficient to create a material fact issue on discriminatory
Paulsen's contention regarding other salespeople not being
disciplined is not borne out by the record. She admitted that one
- 7 - person was disciplined for low sales and that another, a regional
sales manager of similar 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 her 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 former 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. See 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 presented 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
- 8 - Paulsen, nor did they suffer similar illnesses. Their experiences
also do not suffice to create a fact issue regarding discriminatory
motive. See 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
to treatment of employee who suffered different injury because
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 meetings), 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 issue as to whether employer's stated
reasons actually motivated actions, and (2) creates reasonable
inference that [gender] was a determinative factor in actions of
which plaintiff complains).
- 9 - 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:
- 10 - (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 reply brief, claims ADA
coverage only as to the third alternative, "being regarded as
having such an impairment". As to the district court's conclusion
that ADA coverage 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 provision "created
problems for the Trial Court"; and (3) that, in a "regarded as"
case, typical standards do not apply. Needless to say, this
discussion does little to frame a cogent issue for our
consideration; and, on this basis alone, we could affirm summary
- 11 - judgment on the ADA claim. See FED. R. APP. P. 28(a)(6); e.g.,
Weaver v. Puckett, 896 F.2d 126, 128 (5th Cir.) (noting that Rule
28 requires 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 substantially 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 by 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 not have cancer), she must satisfy the
regulation's third alternative: that Beyond "treated ... [her] as
- 12 - 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 meaning of the ADA. In response to the
motion, Paulsen addressed the "limiting effects" 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 per se a disability; rather, in
individual 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 where it has required
- 13 - 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, Ovaries, 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 point out the absence of evidence supporting Paulsen's case.
E.g., Latimer 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 "regarded as"
contention, Paulsen was required to designate the specific facts in
the record that created a material fact issue.
- 14 - Assuming arguendo that Beyond believed that Paulsen had
cancer, Paulsen did not present any evidence that Beyond treated
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 entire record in search of evidence to support the
nonmovant's position. See 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 fact 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 health problems
she experienced in 1993 were in some way related to her previous
cancer; (2) Paulsen's descriptions in her affidavit of the
sometimes severe symptoms of her prior cancer; and (3) Guerin's
- 15 - 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. Even 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 activity, and even further assuming that Guerin's inquiry
could establish that 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 coverage. Because
Paulsen failed to establish a material fact issue as to ADA
coverage, summary judgment was proper on that claim.
III.
- 16 - For the foregoing reasons, the judgment is
AFFIRMED.
- 17 -