United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 26, 2005
October 18, 2005
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
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No. 04 31100
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BARBARA CUTRERA,
Plaintiff-Appellant,
v.
BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY;
LOUISIANA STATE UNIVERSITY FOUNDATION;
MARIAN CAILLIER,
Defendants - Appellees.
__________________
Appeal from the United States District Court
For the Middle District of Louisiana
_______________________
Before DAVIS, JONES, and GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Appellant Barbara Cutrera, who suffers from a form of macular
degeneration, alleges that her former employer, the Louisiana State
University Foundation (“LSU Foundation”), the Board of Supervisors
of Louisiana State University (“LSU Board”), and LSU ADA
Coordinator Marian Callier failed to accommodate her disability and
terminated her in violation of the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. § 12101 et seq, and 42 U.S.C. § 1983.
Cutrera appeals the district court’s grant of summary judgment for
Appellees, and specifically the court’s holding that (1) Appellant
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is not disabled for purposes of the ADA, (2) Appellant failed to
make out a retaliation claim under the ADA, and (3) Appellant
failed to make out a claim under § 1983. Because we conclude that
Appellant raises a genuine question of material fact regarding her
disability status under the ADA, we reverse in part, affirm in
part, and remand.
I.
Appellant Barbara Cutrera was originally hired by LSU as a
coordinator/research associate in the LSU Law Library in 1989. In
1993, Cutrera began experiencing difficulty tracking moving objects
and driving at night, as well as numbness in her eyelids when
reading from a computer screen. After consultation with several
doctors, Cutrera was diagnosed with Stargardt’s disease, a form of
macular degeneration.1 Cutrera’s vision has steadily deteriorated,
and she now has virtually no central vision in her left eye, and
little in her right. Cutrera retains some limited peripheral
vision primarily in her right eye. There is no known cure or
treatment for Stargardt’s disease, and the vision impairment cannot
be corrected with eyeglasses, contact lenses, or surgery.
1
Stargardt's disease (also known as fundus flavimaculatus
and Stargardt's macular dystrophy) is the most common form of
inherited juvenile macular degeneration. It causes a progressive
loss of central vision and, in the early stages patients may have
good visual acuity, but may experience difficulty with reading
and seeing in dim lighting. The progression of vision loss is
variable and can start with a visual acuity of 20/40 and decrease
rapidly to 20/200 (legal blindness). There is no effective
treatment for Stargardt's disease.
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Although Cutrera’s vision impairment was minor at the time of
her diagnosis, by 1997 her vision had deteriorated enough that she
was having difficulty reading information that was handwritten or
typed in small fonts, and Cutrera notified her supervisors at the
LSU Law Library of her condition. Cutrera formally requested
accommodation for her impairment, and the LSU Law Library granted
her additional time to complete her job tasks.
In 1998, Cutrera applied for and was offered a position as a
research assistant with the LSU Foundation. The LSU Foundation
exists to encourage financial support for LSU, and the Foundation
also manages most of the investments and serves as trustee for most
of the private assets contributed for the benefit of the
University. Cutrera was hired to research prospective donors to
LSU and maintain the donor files kept by the Foundation. Cutrera
described her visual impairment during her interview at the
Foundation.
Cutrera began work at the LSU Foundation on July 28, 1998, and
soon discovered she was having difficulty reading many of the
materials included in the donor files, such as handwritten notes
and newspaper clippings, as well as type displayed on her computer
screen. After notifying her supervisors, Cutrera scheduled
meetings with a vocational rehabilitation counselor and the LSU ADA
Coordinator, Marian Callier. During the meeting with Callier on
August 3, 1998, Callier terminated Cutrera and informed her that
she need not return to work.
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On August 2, 1999, Cutrera filed suit in Louisiana state
court, alleging disability discrimination and retaliation in
violation of the ADA, deprivation of her liberty interest in
violation of § 1983, and intentional infliction of emotional
distress in violation of state tort law. After removal, the
District Court granted summary judgment for Appellees on the
grounds that (1) Cutrera is not disabled for purposes of the ADA,
(2) Cutrera failed to make out a retaliation claim under the ADA,
(3) Cutrera failed to make out a claim under § 1983, and (4)
Cutrera failed to make out a state law tort claim. This appeal
followed.
II.
We review the district court’s court’s summary judgment
rulings de novo, applying the same standard as the district court.
Wyatt v. Hunt Plywood Co., Inc., 297 F.3d 405, 408 (5th Cir. 2002).
The Court may grant summary judgment where there is “no genuine
issue as to any material fact” and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c). 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); Mason v.
United Air Lines, 274 F.3d 314, 316 (5th Cir. 2001). Therefore,
summary judgment is appropriate if the nonmovant fails to establish
facts supporting an essential element of her prima facie claim.
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Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Mason, 274 F.3d
at 316. In making the determination of whether summary judgment
was proper, the Court reviews the facts, and all inferences drawn
from those facts, in the light most favorable to the party opposing
the motion. Jurgens v. EEOC, 903 F.2d 386, 388 (5th Cir. 1990).
We will not, however, “weigh the evidence or evaluate the
credibility of witnesses....” Anderson, 477 U.S. at 248; Mason,
274 F.3d at 316.
III.
A.
1.
Cutrera argues first that the district court erred in
concluding that she is not disabled for purposes of the ADA, as
required to make out a prima facie case of discrimination under the
ADA.2 The term “disability” under the ADA means: “(A) a physical
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). The EEOC’s regulations state that the term “major life
activities” includes “functions such as caring for oneself,
2
The ADA prohibits an employer from discriminating
“against a qualified individual with a disability because of the
disability of such individual in regard to ... the hiring ... or
discharge of employees.” 42 U.S.C. § 12112(a). To establish a
prima facie case for discrimination under the ADA, a plaintiff
must be a qualified individual with a disability. Mason, 274
F.3d at 316 (5th Cir. 2001).
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performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F.R. § 1630.2(i).
The District Court granted summary judgment to Appellees on
the grounds that Appellant failed to demonstrate that her vision
impairment imposed a substantial limitation on her ability to see
or work. Cutrera contends on appeal that the record reflects a
genuine question of material fact regarding whether her impaired
vision substantially limits the major life activities of seeing and
working.
Our inquiry into whether Cutrera’s impairment substantially
limits her ability to see is guided by Albertson’s Inc. v.
Kirkingburg, 527 U.S. 555 (1999) and Sutton v. United Airlines,
Inc., 527 U.S. 471 (1999). In Kirkingburg, the Supreme Court held
that the ADA “requires monocular individuals, like others claiming
the Act’s protection, to prove a disability by offering evidence
that the extent of the limitation in terms of their own experience,
as in loss of depth perception and visual field, is substantial.”
Kirkingburg, 527 U.S. at 568. However, the Court also noted that
monocular individuals do not have an “onerous burden” and that
“people with monocular vision ‘ordinarily’ will meet the Act’s
definition of disability.” Id. In Sutton, the Supreme Court held
that mitigating measures must be taken into account in judging
whether an individual has a disability. Sutton, 527 U.S. at 482
(holding that claimants with 20/200 vision or worse in both eyes
who failed to meet the airline’s minimum vision requirement of
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uncorrected visual acuity of 20/100 were not disabled within the
meaning of the ADA because their vision was 20/20 or better
corrected).
Thus, Cutrera must demonstrate that her vision impairment,
taking into account any mitigating measures, substantially limits
her ability to see in terms of her own experience. The record
reflects that a fact issue is presented on this question. The
testimony of both Cutrera and Dr. David Newsome, a specialist in
retinal degeneration, demonstrates that Cutrera’s visual impairment
is not simply a lessening of visual acuity; it is a deterioration
of vision from the inside of her visual field out. The most severe
deterioration is in the center of her vision; she now has virtually
no central vision in her left eye, and little in her right.
Cutrera retains some limited peripheral vision primarily in her
right eye, but is legally blind in her left eye. Although
Cutrera’s condition is currently stable, Dr. Newsome testified that
it is very likely that Cutrera will continue to lose what little
vision she now retains. Cutrera testified that she now does not
believe it would be safe for her to drive, and has significant
difficulty reading small type, handwriting, or any writing with
poor contrast.
There is no known cure or treatment for Stargardt’s disease,
and the vision impairment cannot be corrected with mitigating
measures such as eyeglasses, contact lenses, or surgery. Rather
than adjusting to compensate for the vision impairment, as would
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occur in the normal case of reduced vision, Dr. Newsome testified
that Cutrera’s impairment forces her eyes to work against each
other, impairing her ability to read and visually track moving
objects. Rather than relying on her less-impaired eye, her more-
impaired eye actively interferes with her vision.
Dr. Newsome’s testimony regarding the extent of Cutrera’s
impairment, and Cutrera’s own testimony about the effect her
limited vision has on her ability to see give rise to a genuine
question of material fact on whether Cutrera is disabled under the
ADA. Because we find that Appellant raises a genuine question of
material fact with respect to a substantial limitation on her
ability to see, we need not address whether her impaired vision
also imposes a substantial limitation on her ability to work.
2.
Appellees offer as an alternate basis for affirming the
summary judgment the argument that Cutrera failed to request an
accommodation from the LSU Foundation. “In general ... it is the
responsibility of the individual with the disability to inform the
employer that an accommodation is needed.” 29 C.F.R. § 1630.9,
App. (1995). Once such a request has been made, “[t]he appropriate
reasonable accommodation is best determined through a flexible,
interactive process that involves both the employer and the
qualified individual with a disability.” Id. Thus, the employee’s
initial request for an accommodation triggers the employer’s
obligation to participate in the interactive process. Taylor v.
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Principal Financial Group, Inc., 93 F.3d 155, 165 (5th Cir.), cert.
denied, 519 U.S. 1029 (1996). However, when an employer’s
unwillingness to engage in a good faith interactive process leads
to a failure to reasonably accommodate an employee, the employer
violates the ADA. See Loulseged v. Akzo Nobel Inc., 178 F.3d 731,
736 (5th Cir. 1999) (citing Taylor v. Phoenixville School Dist.,
174 F.3d 142, 165 (3d Cir. 1999); Bultemeyer v. Fort Wayne
Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996)).
Cutrera argues that although she began the interactive process
by notifying her supervisors and meeting with the LSU ADA
coordinator, Appellees refused to discuss any steps that could be
taken to accommodate her disability, and instead terminated her
immediately. Appellees contend that Cutrera simply informed them
that she could not identify any reasonable accommodation which
would enable her to perform the tasks required of her.
Cutrera began work at the LSU Foundation on Tuesday, July 28,
1998. She testified that she was having difficulty reading many of
the materials included in the donor files, such as handwritten
notes and newspaper clippings, as well as type displayed on her
computer screen, almost immediately after beginning work. Cutrera
testified that after discussing the problems she was having with
her immediate supervisor, she scheduled an appointment with her
vocational rehabilitation counselor for Friday, July 31, 1998, to
discuss potential accommodations. Cutrera also scheduled a meeting
with Appellee Marian Callier, the LSU ADA Coordinator, for the
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following Monday, August 3, 1998. Cutrera testified that during
her meeting with Callier, she informed Callier that she had met
with her rehabilitation counselor, and that the rehabilitation
counselor could meet with Callier and the LSU Foundation in order
to discuss potential accommodations. Cutrera testified that
Callier instead terminated her at that meeting. Cutrera further
testified that she told Callier that she wanted to return to work
in order to find a solution, but that Callier told her there was no
need to do so.
Marian Callier testified, however, that Cutrera informed her
in the Monday meeting that she was unable to perform her job duties
and could not immediately identify an appropriate accommodation.
Callier concedes that she was aware of Cutrera’s meeting with a
rehabilitation counselor and her intention to return to work, but
nonetheless argues that Cutrera could not immediately identify a
workable accommodation at the Monday meeting, and therefore was
appropriately terminated.
An employer may not stymie the interactive process of
identifying a reasonable accommodation for an employee’s disability
by preemptively terminating the employee before an accommodation
can be considered or recommended. In this case, Callier’s
awareness of Cutrera’s meeting with a rehabilitation counselor and
her intention to return to work triggered the LSU Foundation’s
obligation to participate in an interactive process with Cutrera to
identify a reasonable accommodation for Cutrera’s disability.
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Reviewing these facts, and all inferences drawn from those facts,
in the light most favorable to Appellant Cutrera, we conclude that
summary judgment for Appellees based on the argument that Cutrera
failed to request an accommodation would be inappropriate.
B.
Appellant argues next that the District Court erred when it
granted summary judgment on her ADA retaliation claim. The
District Court found that appellant failed to prove any causal
connection between the protected activity asserted in Appellants
retaliation claim—requesting an accommodation from the LSU Law
Library in 1997 and applying for new positions following her
termination in 1998—and the adverse employment action. Appellant
now argues that the District Court failed to consider her request
for accommodations at the LSU Foundation in 1998 as a basis for the
alleged retaliation. However, Appellant’s new factual theory was
not raised in her complaint, nor raised in her opposition to
Appellee’s motion for summary judgment. We decline to consider
Appellant’s new arguments raised for the first time on appeal.
Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 669 (5th
Cir.2004). The District Court correctly dismissed the retaliation
claims.
C.
Appellant argues next that the District Court erred when it
granted summary judgment on her § 1983 claim, arguing that the
District Court ignored her First Amendment retaliation claim.
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Appellant’s First Amendment retaliation claim, however, was not
raised in her complaint, and instead was raised for the first time
in response to Appellee’s motion for summary judgment. A claim
which is not raised in the complaint but, rather, is raised only in
response to a motion for summary judgment is not properly before
the court. Fisher v. Metropolitan Life Ins. Co., 895 F.2d 1073,
1078 (5th Cir. 1990).
The district court properly considered only Appellant’s § 1983
claims based on the equal protection and due process grounds raised
in the complaint and correctly granted summary judgment on the
claims as pled. Appellant has not briefed the equal protection or
due process issues on appeal, and has therefore waived those
claims. See Gomez v. Chandler, 163 F.3d 921, 921 (5th Cir. 1999)
(holding that where a claim is not briefed on appeal, it is
abandoned). Because Appellant failed to properly raise the First
Amendment claim, and has abandoned her equal protection and due
process arguments, we conclude that the district court correctly
granted summary judgment to Appellees on the § 1983 claims.
IV.
For reasons stated above, we conclude that Appellant has
raised a genuine question of material fact regarding her
disability status under the ADA and remand her ADA claim to the
District Court for further proceedings. We affirm the District
Court’s judgment in all other respects.
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Affirmed in part, reversed in part, and remanded.
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