United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 11, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-10434
_____________________
LOLA MCDOWELL,
Plaintiff-Appellant,
versus
THE HOME DEPOT USA, INC., doing business as The Home Depot,
Defendant-Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-1294-D
_________________________________________________________________
Before REAVLEY, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
In March 2001, after hip replacement surgery and an extended
medical leave, Lola McDowell returned to work for her employer, The
Home Depot. Soon after, McDowell began experiencing what she
regarded as “harassment” by her new supervisor. As a result,
McDowell brought this action under the Americans with Disabilities
Act (ADA). McDowell contends that Home Depot (1) unlawfully
discriminated against her on the basis of disability; (2) failed to
reasonably accommodate her disability; and (3) retaliated against
her for engaging in activities protected under the ADA. The
*
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this opinion should not be published and is not precedent except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.
district court granted summary judgment for Home Depot as to all
three claims. We AFFIRM.
I
We review a grant of summary judgment de novo, applying the
same standard as the district court. See Seaman v. CSPH, Inc., 179
F.3d 297, 299 (5th Cir. 1999). Summary judgment is appropriate
where the record demonstrates no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(c).
The district court did not err in granting summary judgment as
to McDowell’s discrimination and reasonable accommodation claims.
The ADA provides that “[n]o covered entity shall discriminate
against a qualified individual with a disability because of the
disability of such individual”. 42 U.S.C. § 12112(a). Thus, to
prevail on her discrimination claim, McDowell must prove that: (1)
she has a “disability”, as the term is defined by the ADA; (2) she
is qualified for the job; and (3) an adverse employment decision
was made because of her disability. See Turco v. Hoechst Celanese
Corp., 101 F.3d 1090, 1092 (5th Cir. 1996). Failure to accommodate
is a form of discrimination under the ADA, and likewise, requires
a showing that the plaintiff is disabled. See 42 U.S.C. §
12112(b)(5)(A).
2
The district court held that no reasonable jury could conclude
that McDowell was disabled within the meaning of the ADA.1
Although we agree with the substantive conclusion reached by the
district court, we need not address its merits, as McDowell has
abandoned the issue on appeal.
Where a claim is not briefed on appeal, it is abandoned. See
Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999). In this case, the
crux of McDowell’s case is her contention that the district court
erred in concluding that hers was not an impairment that
“substantially limits one or more ... major life activities”. In
her brief, McDowell recites this standard and summarily states that
she has “satisfied that burden”. This single, wholly conclusory
sentence is not an “argument” within the meaning of FED. R. APP. P.
28(a)(9). As such, McDowell has abandoned her discrimination and
reasonable accommodation claims, both of which require a showing
that she is disabled under the terms of the ADA.
We turn, then, to McDowell’s retaliation claim. To prevail on
a claim of retaliation, a plaintiff must show that (1) she engaged
in an activity protected under the ADA; (2) an adverse employment
action occurred; and (3) a causal link exists between the protected
activity and the adverse employment action. See 42 U.S.C. §
1
The ADA defines disability as “(A) a physical or mental
impairment that substantially limits one or more of the major life
activities of [an] individual; (B) a record of such an impairment;
or (C) being regarded as having such an impairment”. 42 U.S.C. §
12102(2).
3
12203(a). The district court held that McDowell’s complaint to
Home Depot’s Workplace Alert hotline was protected under the ADA
and that her subsequent demotion was an “adverse employment
action”. The court nonetheless dismissed the claim, holding that
McDowell failed to proffer any evidence of a causal link between
the protected activities and her subsequent demotion.
McDowell contends that the close proximity of her call to
Workplace Alert on August 17 and her demotion on August 18 is
sufficient evidence of causation to survive summary judgment. This
court, however, has rejected temporal proximity, without more, as
a basis for showing causation in retaliation cases. See Swanson v.
General Services Admin., 110 F.3d 1180, 1188 (5th Cir. 1997). As
such, the district court did not err in granting Home Depot’s
motion for summary judgment as to McDowell’s retaliation claim.
II
For the foregoing reasons, the decision of the district court
is
AFFIRMED.
4