United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 12, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________
No. 04-10229
____________________
RICARDO HINOJOSA
Plaintiff - Appellant
v.
JOSTENS INC
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas, Dallas
No. 3:02-CV-0391-K
_________________________________________________________________
Before KING, Chief Judge, and GARZA and BENAVIDES, Circuit
Judges.
KING, Chief Judge:*
Plaintiff-Appellant Ricardo Hinojosa filed suit against
Defendant-Appellee Jostens, Inc. (“Jostens”), asserting claims
for: (1) disability discrimination under the Americans with
Disabilities Act (“ADA”); (2) discriminatory discharge under the
Employment Retirement Income Security Act (“ERISA”); and (3)
breach of fiduciary duty under ERISA. On January 22, 2004, 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that this opinion should not be published and is not precedent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 in favor of Jostens and
dismissed Hinojosa’s claims with prejudice. Hinojosa now
appeals. Addressing each of Hinojosa’s arguments in turn, we
AFFIRM the judgment of the district court.
We review the district court’s grant of summary judgment de
novo, applying the same standards as the district court. Burch
v. City of Nacogdoches, 174 F.3d 615, 618 (5th Cir. 1999).
Summary judgment may be entered if the record, taken as a whole,
shows that there is no genuine issue of material fact and that
the movant is entitled to judgment as a matter of law. FED. R.
CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
We begin by addressing Hinojosa’s claim that Jostens
discriminated against him in violation of the ADA by terminating
him based on his disability and by failing to provide him with
reasonable accommodations. The district court dismissed
Hinojosa’s ADA claim because it concluded that he did not qualify
as disabled under the ADA.1 On appeal, Hinojosa argues that
1
The ADA makes it unlawful for an employer to discriminate
against an employee who is a qualified individual with a disability
because of that employee’s disability. 42 U.S.C. § 12112(a)
(2000). Under the McDonnell Douglas burden-shifting framework, to
make a prima facie case of discrimination, a plaintiff must
establish that he: (1) has a disability; (2) is qualified for the
position; and (3) was discriminated against because of his
disability. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
McInnis v. Alamo Cmty. Coll. Dist., 207 F.3d 276, 279-80 (5th Cir.
2000) (applying the McDonnell Douglas burden-shifting framework to
a case brought under the ADA). If a plaintiff makes this prima
facie showing, then the burden shifts to the employer to articulate
2
there is a genuine issue of fact as to whether he is disabled.
First, Hinojosa argues that he is substantially impaired in
the major life activity of performing the manual tasks of
lifting, pushing, pulling, and holding, which makes it difficult
for him to perform activities of daily living such as putting on
and buttoning his shirt, washing his hair, doing dishes, driving
short distances, and sleeping. Hinojosa also points to the fact
that he was diagnosed with reflex sympathetic dystrophy. The ADA
defines a disability as, inter alia, a physical or mental
impairment that substantially limits one or more major life
activities. 42 U.S.C. § 12102(2)(2000); Sherrod v. Am. Airlines,
Inc., 132 F.3d 1112, 1119 (5th Cir. 1998). Hinojosa has the
burden of demonstrating that his impairment limits a major life
activity. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.
184, 195 (2002). Although a major life activity includes
performing manual tasks, Hinojosa must also show that the
limitation on the major life activity is substantial. Id.;
McInnis, 207 F.3d at 280. The Supreme Court has stated that “to
be substantially limited in performing manual tasks, an
individual must have an impairment that prevents or severely
restricts the individual from doing activities that are of
a legitimate, non-discriminatory reason for the adverse employment
action. McInnis, 207 F.3d at 280. Once the employer articulates
such a reason, the burden shifts back to the plaintiff to establish
by a preponderance of the evidence that the reason was merely a
pretext for discrimination. Id.
3
central importance to most people’s daily lives.” Toyota Motor
Mfg., 534 U.S. at 198. In addition, the impairment’s impact must
be permanent or long term. Id. Hinojosa simply asserts that his
impairment makes it difficult for him to perform activities of
daily living. However, he produces no evidence whatsoever that
he is prevented or even severely restricted from performing such
activities. In addition, Hinojosa presents no evidence, in fact
he does not even allege, that the impact of his impairment is
permanent or long-term. The fact that Hinojosa was diagnosed
with reflex sympathetic dystrophy does not in itself establish
that he was limited in a substantial major life activity because
the determination of whether a plaintiff has a disability is
based on the effect of the impairment in his life, not on the
name or diagnosis of the physical impairment. Taylor v.
Principal Fin. Group, 93 F.3d 155, 164 (5th Cir. 1996) (citing 29
C.F.R. § 1630.2(j), App. (1995)). Thus, Hinojosa has failed to
raise a genuine issue of fact as to whether he was limited in a
substantial major life activity.
Second, Hinojosa argues that he has a record of a disability
because his medical records indicate he has an impairment that
substantially limits major life activities. Under the ADA, a
disability is also defined as having a record of a physical or
mental impairment that substantially limits one or more major
life activities. 42 U.S.C. § 12102(2)(2000); Sherrod, 132 F.3d
at 1119. Hinojosa bears the burden of showing that he has a
4
record of an impairment. Dupre v. Charter Behavioral Health Sys.
of Lafayette, Inc., 242 F.3d 610, 615 (5th Cir. 2001). However,
Hinojosa points to no evidence in the record with regard to this
claim. “[U]nsubstantiated assertions are not competent summary
judgment evidence.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d
455, 458 (5th Cir. 1998). In addition, Hinojosa has not pointed
to any legal authority supporting his argument. Therefore, he
has inadequately briefed this claim on appeal and, as such, has
forfeited it. Gen. Universal Sys., Inc. v. Lee, 379 F.3d 131,
148 (5th Cir. 2004) (per curiam). Thus, we need not review
Hinojosa’s claim that he has a record of a disability.2
Third, Hinojosa argues that Jostens regarded him as having a
disability because it did not assign him to work as a trainer--a
job that he could do and that was available. The ADA also
defines a disability as being regarded as having a physical or
mental impairment that substantially limits one or more major
life activities. 42 U.S.C. § 12102(2)(2000); Sherrod, 132 F.3d
at 1119. Jostens would be deemed to have regarded Hinojosa as
2
Even if we did review Hinojosa’s argument, he has failed
to raise a genuine issue of material fact as to whether he has a
record of an impairment. This court has specifically rejected that
injury, surgery, hospitalization, and inability to work can
establish a record of a disability as a matter of law. Pryor v.
Trane Co., 138 F.3d 1024, 1028 (5th Cir. 1998). In addition,
restrictions indicating an inability to perform continuous, heavy
lifting or an inability to perform a particular job do not
necessarily constitute a record of disability. Id. This court
requires a record of an impairment that substantially limits a
major life activity. Id. There simply is no such record here.
5
disabled if it: (1) mistakenly believed that Hinojosa had a
physical impairment that substantially limited a major life
activity; or (2) mistakenly believed that an actual, nonlimiting
impairment substantially limited one of Hinojosa’s major life
activities. Sutton v. United Airlines, Inc., 527 U.S. 471, 489
(1999); McInnis, 207 F.3d at 281. There is no dispute that
Hinojosa had an impairment to his right arm. The question
remains whether Jostens believed that Hinojosa’s impairment
substantially limited him in a major life activity. This circuit
has held that an employer does not necessarily regard an employee
as substantially limited when it discharges the employee because
he can not perform his job. Ray v. Glidden Co., 85 F.3d 227,
229-30 (5th Cir. 1996); Richards v. Seariver Mar. Fin. Holdings,
Inc., 59 F. Supp. 2d 616, 628 (S.D. Tex. 1998). Thus, the fact
that Jostens terminated Hinojosa because he could not perform the
duties of any job available at Jostens does not establish that
Jostens regarded Hinojosa as substantially limited in a major
life activity. Further, the fact that Hinojosa was not offered a
trainer position does not establish that Jostens considered him
substantially limited in a major life activity. Hinojosa was
assigned to the lay-out clerk position to meet his restrictions,
and Jostens’s inquiry was simply meant to accommodate his
limitations. In addition, Judy Howard, the employee responsible
for the administration of injury claims under the Jostens
Employee Injury Benefit Plan (the “Plan”), testified that she did
6
not consider Hinojosa disabled. Also, the fact that Jostens
inquired into Hinojosa’s capability to perform his duties does
not establish that Jostens considered Hinojosa substantially
limited in a major life activity. See Tice v. Centre Area
Transp. Auth., 247 F.3d 506, 515-16 (3d Cir. 2001). In fact, the
ADA authorizes employers to inquire about an employee’s ability
to perform job-related functions. 42 U.S.C. § 12112(d)(4)(B).
Thus, Hinojosa has failed to raise a genuine issue of fact as to
whether Jostens regarded him as having a disability. We
therefore conclude that the district court did not err in
granting summary judgment on Hinojosa’s ADA claim.3
We next turn to Hinojosa’s claim that Jostens discriminated
against him in violation of § 510 of ERISA, 29 U.S.C. § 1140, by
terminating his employment with the specific intent to deprive
him of medical benefits under the Plan. Section 510 of ERISA
provides:
It shall be unlawful for any person to discharge . . . a
participant or beneficiary for exercising any right to
which he is entitled under the provisions of an employee
benefit plan . . . or for the purpose of interfering with
the attainment of any right to which such participant may
become entitled under the plan.
29 U.S.C. § 1140. To establish a prima facie case under § 510, a
3
Since we have concluded that Hinojosa failed to raise a
genuine issue of fact with respect to a prima facie case of
discrimination under the ADA, we need not address Hinojosa’s
arguments that: (1) Jostens’s reason for terminating him was a
pretext for discrimination; and (2) Jostens discriminated against
him by failing to provide reasonable accommodations.
7
plaintiff must prove, inter alia, that his employer terminated
him with the specific intent to discriminate against him for
exercising, or to interfere with, any ERISA right to which he is
entitled or may become entitled. Holtzclaw v. DSC Communications
Corp., 255 F.3d 254, 261 (5th Cir. 2001). The district court
determined that Hinojosa failed to establish his prima facie case
because, at the time Hinojosa was terminated, he had no right to
receive benefits under the Plan. Pursuant to the terms of the
Plan, Hinojosa’s eligibility for benefits expired on April 2,
1998. Thus, when he was fired on September 15, 2000, Hinojosa
did not have any right under the Plan. Accordingly, Jostens’s
specific intent in terminating Hinojosa could not have been to
retaliate against him for exercising a right under the Plan or to
interfere with any rights under the Plan. See Hines v. Mass.
Mut. Life Ins. Co., 43 F.3d 207, 209-10 (5th Cir. 1995)
(concluding that the district court properly granted summary
judgment because the plaintiff had “no rights” under the benefit
plan); Perdue v. Burger King Corp., 7 F.3d 1251, 1255 (5th Cir.
1993) (granting summary judgment on a § 510 ERISA claim because,
at the time of discharge, the plaintiff did not have rights under
the benefit plan with which the defendant could interfere); Van
Zant v. Todd Shipyards Corp., 847 F. Supp. 69, 73 (S.D. Tex.
1994). Because Hinojosa failed to make a prima facie case of
discriminatory discharge under § 510 of ERISA, Jostens was
entitled to judgment as a matter of law.
8
Finally, we address Hinojosa’s claim that Jostens breached
its fiduciary duty under § 409 and § 502 of ERISA (29 U.S.C.
§ 1109 and § 1132 respectively) because it terminated him to
discontinue his benefits. ERISA imposes personal liability on
any person who is a fiduciary with respect to a plan and who
breaches any of the duties imposed by ERISA. Schloegel v.
Boswell, 994 F.2d 266, 271 (5th Cir. 1993). ERISA provides that
a person is a fiduciary with respect to a plan to the extent he,
inter alia, “has any discretionary authority or discretionary
responsibility in the administration of such plan.” 29 U.S.C.
§ 1002(21)(A). ERISA recognizes that an employer may act in a
dual capacity as both a fiduciary to the plan (as plan
administrator) and as an employer. Long v. Excel Telecomms.
Corp., No. CIV. A. 3:98-CV-3015-G, 1999 WL 1029088, at *2 (N.D.
Tex. Nov. 9, 1999). An employer serving as a plan administrator
assumes fiduciary status when it acts in its capacity of an
administrator, but not when it acts in its capacity as an
employer. Izzarelli v. Rexene Prods. Co., 24 F.3d 1506, 1524
(5th Cir. 1994).
In determining whether an employer acted as a plan
administrator or as an employer, this court looks at the nature
of the act and not at the intent behind it. Bodine v. Employers
Cas. Co., 352 F.3d 245, 252 n.6 (5th Cir. 2003). Several courts,
including the Fifth Circuit, have held that when a business
decides to terminate an employee, it acts in its capacity as an
9
employer. Id. at 251-52 (stating that “a decision to terminate
an employee, who is also a Plan beneficiary, is inherently not
fiduciary in nature”); see also Long, 1999 WL 1029088, at *2.
The district court dismissed Hinojosa’s claim because it
concluded Jostens was not a fiduciary under ERISA. Hinojosa
argues that Jostens is a fiduciary under ERISA because it had
discretionary authority over the Plan’s management. However,
because Jostens terminated Hinojosa, it was acting in its role as
an employer and not as a plan administrator. Thus, Jostens was
not acting as a fiduciary when it terminated Hinojosa. Since
Hinojosa has not produced any evidence that Jostens was acting in
its capacity as a plan administrator when it fired him (which
would have given it fiduciary status), the district court did not
err in granting summary judgment on Hinojosa’s breach of
fiduciary duty claim under ERISA.
Accordingly, the judgment of the district court is AFFIRMED.
10