Case: 18-41186 Document: 00515313980 Page: 1 Date Filed: 02/18/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-41186
Fifth Circuit
FILED
February 18, 2020
ROBERT ARREDONDO, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON,
doing business as UTMB Health, doing business as UTMB Correctional
Managed Care; UTMB CORRECTIONAL MANAGED CARE; DONALD
HLAVINKA; DEBORAH S. DANSBE; SHANA L. KHAWAJA; DAVID L.
CALLENDER; OWEN MURRAY, in his official capacity,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, SMITH, and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
Appellant Robert Arredondo (“Arredondo”) sued his employer, the
University of Texas Medical Branch at Galveston (“UTMB”) and his
supervisors for various claims brought under Title VII of the Civil Rights Act
(42 U.S.C. § 2000e et seq.), the Family and Medical Leave Act (“FMLA”) (29
U.S.C. § 2601 et seq.), and the Americans with Disabilities Act (“ADA”) (42
U.S.C. § 12101 et seq.). Appellees moved for summary judgment on all claims
which the district court granted. Arredondo appealed, filing pro se, to this
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court. For the reasons set forth herein, we DISMISS this appeal for want of
prosecution for Arredondo’s failure to adhere to the federal and our local rules
of appellate procedure.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Facts
The facts here are derived from the district court’s order granting
summary judgment. Arredondo was employed with UTMB from April 2007 to
October 2013 as a mental health case manager at a psychiatric hospital, the
Beauford H. Jester IV Unit. In that role, Arredondo was required to (a) meet
with at least 200 patients per month; (b) promptly complete patient charts; and
(c) document patients’ suicidal and homicidal thoughts. Senior psychologist
Shana Khawaja and mental health manager Donald Hlavinka supervised
Arredondo.
In April 2013, Arredondo was notified that his position would change
from exempt to non-exempt under the Fair Labor Standards Act. This change
required him to clock-in and clock-out each day, to monitor the hours he
worked, and to ask his supervisors for permission to work overtime. A week
after this change, Arredondo worked overtime without permission. Those
additional hours were not reported though Arredondo was orally warned by
Hlavinka of the consequences resulting from inaccurate time reporting. He
rarely met the 200 patient per month visitation quota—in May 2013, he saw
only 26 patients; in June, 68 patients. Hlavinka routinely talked with
Arredondo about his subpar performance and they met regularly to discuss
ways to improve his performance.
Arredondo alleges that he applied for 46 promotions between 2007 and
2013 and was denied all of them. In early June 2013, Arredondo filed an
internal complaint with the Office of Diversity and Inclusion complaining of
these various denials for promotion. Deborah Dansbe, a senior human
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resources consultant, reviewed eleven of those positions, meeting directly with
Arredondo and with the hiring managers.
In that meeting with Dansbe, Arredondo said that he felt the hiring
decisions were discriminatory because he did not understand why he was not
selected. He also said that his seventeen years of experience warranted his
hiring for those positions despite the interview or the qualifications for the
positions. To be sure, he did not say that he was discriminated or retaliated
against because he was a man or because he was disabled. Dansbe concluded
her investigation and determined that the most qualified candidates had been
selected for each job. The investigation closed because Dansbe could not
substantiate Arredondo’s claims.
Arredondo also met with Dansbe and senior mental health manager
Tonya Campbell to discuss his interview skills. She said that he did not
interview well and advised him how to improve his responses. On July 22,
2013, Arredondo applied to be a mental health clinician. The job listed several
requirements including a master’s degree in counseling, social work, or
related fields and licensure, or that the applicant be eligible for licensure, as a
professional counselor, social worker, or psychological associate. Campbell and
three others interviewed eight applicants, including Arredondo. On July 24,
2013, UTMB informed Arredondo that he had not been selected for that
position. UTMB instead hired Crystal McGown.
Later in the month, UTMB evaluated Arredondo’s 2013 performance.
Hlavinka summarized the reasons for Arredondo’s below-standard rating: (a)
he was excessively absent; (b) he did not meet the monthly patient quota; and
(c) his clinical notes were unsatisfactory. In response, Arredondo filed a
grievance claiming that the evaluation was unfair.
Unrelatedly, Arredondo requested permission to leave occasionally due
to chronic insomnia. UTMB gave him the necessary paperwork for leave. It
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received a copy from his physician indicating that he needed leave “one time a
week for up to one day per episode.” UTMB approved the request. Arredondo
also asked to modify his schedule because of his diabetes. He met with his
supervisors and UTMB’s ADA coordinator, Lela Lockette-Ware. In that
meeting, he asked for recovery time if his blood-sugar increased and to leave
the premises during that time. He also expressed his concerns about storing
insulin in his car during the day. Arredondo acknowledged that prior to the
2013 performance evaluation, he neither needed nor requested an
accommodation. Lockette-Ware asked him to submit paperwork from his
physician describing his diabetes and detailing the specific accommodations he
needed. Arredondo never provided the paperwork. In the meantime, UTMB
allowed Arredondo to use a flexible schedule with his supervisors’ approval. He
was allowed to leave and return to work without its counting as an
unscheduled absence. Again, Arredondo did not submit the doctors’ paperwork.
Instead, he e-mailed the personnel department withdrawing his request and
would “revisit the issue if his health circumstances changed.”
In early October 2013, Khawaja noticed that Arredondo’s patient
encounters spiked in August and September. She audited his clinical records
on October 2 and found that the patient charts were inaccurate, incomplete,
and late. In August, Arredondo reported that he saw 362 patients but his
records reflect that he saw only 205 patients. 157 patients were unaccounted
for, if he in fact saw them. Arredondo said that the increase was from his
participation in clinical groups but Khawaja said that those groups were no
longer offered. He also did not document patients’ suicidal or homicidal
thoughts. Khawaja also said that several patient charts were duplicated vis-à-
vis Arredondo’s cutting and pasting the same note in every patient’s chart. As
a result, UTMB fired him on October 30, 2013.
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On May 15, 2014, Arredondo filed a charge of discrimination with the
Equal Employment Opportunity Commission (“EEOC”). He said that he was
discriminated and retaliated against because of his race, disability, age, sex,
and national origin. The EEOC issued a right-to-sue letter in June 2016.
B. Procedural History
Following the issuance of the EEOC’s right to sue notice, on September 5, 2016,
Arredondo filed suit against the school and two names the school apparently
uses when it furnishes medical care to inmates: UTMB Correctional Managed
Care and UTMB Healthcare Systems, Inc. He also named in his complaint five
people who work for the school: Donald Hlavinka, Shana Khawaja, Deborah
Dansbe, David Callender, and ophthalmologist Owen Murray. He amended his
complaint on October 26, 2016 asserting Title VII, FMLA, Age Discrimination
in Employment Act of 1967 (“ADEA”) (29 U.S.C. § 621), and ADA claims. The
next day, Arredondo filed a second amended complaint dropping the ADEA
claims. The appellees moved for summary judgment on March 9, 2018.
Arredondo filed a response in opposition to the motion for summary judgment
on March 30, 2018. The district court granted the appellees’ motion for
summary judgment on all of Arredondo’s claims. Arredondo timely appealed.
II. DISCUSSION
On appeal, Arredondo moved to introduce a supplemental appendix of
materials into evidence. ECF 26. That motion was carried with the case; we
address it now, and address why Arredondo’s appeal fails in totality thereafter.
Arredondo seeks to admit three exhibits that include, inter alia, five
years-worth of performance reviews, copies of awards and accolades that he
received on the job, and internal emails between he and his supervisors. He
posits that the district court’s grant of summary judgment to UTMB “opened
the door for rebuttal evidence to be entered on appeal . . . . ” However, this is
not so. This motion is denied because most of the documents produced in this
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supplemental appendix were not first introduced to the district court and are
therefore not part of the record on appeal. See Tradewinds Environmental
Restoration, Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 262 (5th Cir. 2009).
Additionally, the motion was unnecessary with respect to the documents that
do appear in the district court record but are not in the record excerpts
appendix. See FED. R. APP. P. 30(a)(2). Thus, Arredondo’s motion is improper
and as such, is denied.
More generally, the appellees argue that this appeal should be
summarily dismissed because Arredondo abandoned all of the issues for failure
to cite to the record in his opening brief as required by Federal Rule of
Appellate Procedure 28.
While we “liberally construe pro se briefs,” it is true that parties filing
appeals in this court, including those filing pro se, must adhere to the
requirements of the Federal Rules of Appellate Procedure (“FRAP Rules”).
Clark v. Waters, 407 F. App’x 794, 796 (5th Cir. 2011) (“Although we liberally
construe pro se briefs, such litigants must still brief the issues and reasonably
comply with the standards of Rule 28 in order to preserve them.”); see also
United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (“[P]ro se litigants,
like all other parties, must abide by the Federal Rules of Appellate
Procedure.”). Indeed, Rule 28(a) of the FRAP Rules requires an appellant to
set forth his “contentions and the reasons for them, with citations to the
authorities and parts of the record on which the appellant relies.” FED. R. APP.
P. 28(a)(8)(A). Likewise, our local rules require “[e]very assertion in briefs
regarding matter in the record [to] be supported by a reference to the page
number of the original record, whether in paper or electronic form, where the
matter is found using the record citation form as directed by the Clerk of
Court.” 5TH CIR. R. 28.2.2. Failure to adhere to these rules usually results in
dismissal of the appeal. Id. at R. 42.3.2 (“In all other appeals when appellant .
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. . fails to comply with the rules of the court, the clerk must dismiss the appeal
for want of prosecution.”).
The appellees are correct that Arredondo’s brief does not have the
technical record citations that are required of appellate briefings. But,
Arredondo argues that this should be overlooked because he cited to a list of
the documents that he references throughout his brief at the very end. He also
asks that we not be so strict in our adherence to these rules and asserts that
doing so functionally deters parties who file appeals in this court pro se because
they cannot afford counsel or, in Arredondo’s case, their counsel of record
withdraws representation within the requisite period to file a notice of appeal.
Indeed, in his reply brief, Arredondo calls our attention to this dichotomy—
that is strict procedural adherence on par with procedural due process. To be
sure, those effects are present for those pro se litigants who proceed before this
court and others in forma pauperis in criminal cases or are otherwise indigent
in civil cases. Arredondo has not demonstrated that he is indigent.
Furthermore, citations to the record on appeal, as required by the federal
appellate rules and our local rules, help us parse out the issues that are
actually before us on appeal. For example, Arredondo provides legal support
from this circuit and other jurisdictions in support of the issues that he raises
but does not provide record citations. Indeed, one of the issues raised by
Arredondo is that the district court erred in granting summary judgment to
the appellee’s because, in his view, they denied him rights under the FMLA.
In response, the appellees correctly pointed out, with a proper record citation,
that this issue was not properly preserved at the district court and thus, is not
before us on appeal.
On the contrary, we can consider a pro se litigant’s non-compliant brief
when the non-compliance did not prejudice the opposing party. Compare Grant
v. Cuellar, 59 F.3d 523, 525 (5th Cir. 1995) (declining to consider appellant’s
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non-compliant pro se brief because his “failure to articulate any appellate
argument therefore deprived the [appellees] of their opportunity to address
fully all the issues . . . .”) with Price v. Digital Equip. Corp., 846 F.2d 1026,
1028 (5th Cir. 1988) (considering plaintiff-appellant’s pro se appellate brief
that did not set forth an argument for the one issue on appeal in accordance
with Fed. R. App. P. 28(a)(4) because the defendant-appellee was able to fully
address that singular issue).
Here, the prejudice is clear. First, the four issues listed by Arredondo in
the “Statement of Issues” section of his opening brief are not those addressed
by the district court on summary judgment. Significantly, the issue statements
Arredondo provides do not coincide with what he discusses in his brief and
what he ultimately requests from this court—vacatur of the district court’s
order granting summary judgment to the appellees. Second, he also posits that
in granting the appellees’ motion for summary judgment, the district court
found him “guilty of felonies without due process of law from the bench . . . .”
The district court’s grant of summary judgment did no such thing. Appellant’s
brief is not only non-compliant with the FRAP Rules and our local rules with
respect to record citations, it is also confusing and layered with arguments that
are not supported by the record.
What’s more, beyond the imperfections of the briefing, the appellees
correctly pointed out that Arredondo’s claims fail for abandonment, waiver,
lapse of time, or lack of evidentiary support. Particularly, the district court
dismissed the Title VII claims against all five individual defendants because
Title VII does not authorize claims against individuals and no evidence
supports that they were proper parties to the suit in the first instance. On
appeal, Arredondo argues that direct evidence supported his claims when he
argued that his claims were supported by circumstantial evidence at the
district court. Accordingly, that position is waived on appeal. Likewise, he
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argues a “failure to accommodate” ADA claim that was not raised before the
district court that is also waived on appeal. Furthermore, the district court
correctly held that the claims that remain all failed for lack of evidentiary
support.
III. CONCLUSION
For the foregoing reasons, we DISMISS this appeal for want of
prosecution.
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