IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2007
No. 07-20276 Charles R. Fulbruge III
Summary Calendar Clerk
ROBERT ARREDONDO
Plaintiff-Appellant
v.
GULF BEND CENTER
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
No. 4:06-CV-1580
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Robert Arredondo alleged in a pro se suit against his former employer Gulf
Bend Center that he lost his job as a Mental Health Counselor because of sex
discrimination and retaliation, in violation of Title VII of the Civil Rights Act of
1964, and discrimination prohibited by the Americans with Disabilities Act
(“ADA”). The district court granted summary judgment in favor of the
defendant, and Arredondo appeals. Applying de novo review, Nasti v. CIBA
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-20276
Specialty Chemicals Corp., 492 F.3d 589, 592 (5th Cir. 2007), we affirm for the
following reasons.
1. Gulf Bend Center provides care to mental health and mental retardation
patients, who it refers to as “consumers.” On May 3, 2005, staff members
called Arredondo for assistance with a consumer in crisis. The consumer
had become verbally abusive and physically threatening to staff and other
consumers. Arredondo took charge of the consumer and, without
consulting his supervisor, took the consumer for a ride in his personal
vehicle to calm him. Upon learning of these events, Richard Wright,
Arredondo’s immediate supervisor, called Arredondo on his cell phone and
instructed him to return immediately to the Center. Wright and Ernest
Moss, the Director of Clinical Services, met with Arredondo and were
concerned because no other staff members had been present in
Arredondo’s vehicle to assist if the consumer again became violent or
abusive. Wright reported the incident to the Texas Department of Family
and Protective Services, but the Department declined to open an
investigation and referred the matter back to the Center for
administrative review because the consumer had not been injured.
2. The Center considered Arredondo’s actions to be contrary to its policies
concerning consumer care and safety and in derogation of his training.
Director of Human Resources Scott Granz placed Arredondo on paid
administrative leave pending an investigation. Granz and Moss
subsequently recommended to the Director of Administrative Services that
Arredondo be terminated for exercising poor clinical judgment. Arredondo
provided a response to the recommendation and was told that a decision
would be made by May 11, 2005. On May 10, 2005, however, Arredondo’s
attorney sent a letter to the Center referring to Arredondo’s “former
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employment.” The Center construed this letter as Arredondo’s
resignation.
3. Approximately one month before the incident described above, Arredondo
had made a complaint of sexual harassment against a co-worker. Granz
investigated the complaint and in a letter to Arredondo dated April 26,
2005, stated that he was unable to find harassment because there were no
witnesses. He also indicated that he had intended to have the alleged
offender attend additional workplace training but she had subsequently
resigned for unrelated reasons. Arredondo was given the letter on May 2,
2005, and he indicated that he was satisfied with the investigation. The
incident with Arredondo transporting the consumer in his vehicle occurred
the next day.
4. Arredondo alleged in the district court that he was terminated due to his
sex, in violation of 42 U.S.C. § 2000e-2(a). Arredondo has not pursued this
claim on appeal, and his failure to brief the issue constitutes a waiver of
the claim. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
5. Arredondo devotes much of his brief to contesting the Center’s assessment
of his actions, essentially arguing that he did nothing wrong in
transporting the consumer because the consumer was not violent and did
not have a weapon. Arredondo contends that he was constructively
discharged in retaliation for making the sexual harassment complaint and
that the district court applied an incorrect standard to his claim. In
support of his claim, Arredondo primarily relies on the time line of events
and the temporal proximity of the harassment complaint to the end of his
employment. As part of his case, Arredondo was required to put forth
sufficient summary judgment evidence showing that he would not have
lost his job but for the sexual harassment complaint. See Strong v. Univ.
HealthCare Sys., L.L.C., 482 F.3d 802, 806 (5th Cir. 2007). Temporal
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No. 07-20276
proximity alone is insufficient. Id. at 808. We conclude that the Center
put forth a legitimate reason for the employment action and that
Arredondo fails to show a genuine issue of material fact that the reason
was pretextual. See id.
6. Arredondo also argues that the Center violated the ADA because the
adverse employment action occurred because of a disability, specifically
bipolar disorder and a learning disability, of which the Center was aware.
To establish a prima facie case of discrimination under the ADA,
Arredondo must show that (1) he suffers from a disability; (2) he is
qualified for the job; (3) he was subjected to an adverse employment
action; and (4) he was replaced by a non-disabled employee or treated less
favorably than a non-disabled employee. See Seaman v. CSPH, Inc., 179
F.3d 297, 300 (5th Cir. 1999). The district court held that Arredondo was
not disabled under the ADA. A disability within the meaning of the ADA
is “a physical or mental impairment that substantially limits one or more
of the major life activities,” “a record of such an impairment,” or “being
regarded as having such an impairment.” 42 U.S.C. § 12102(2). Although
Arredondo has put forth evidence showing that he has been diagnosed
with a mental impairment, he has not shown a disability because his
exhibits also show that he does well with medication. See Sutton v. United
Air Lines, Inc., 527 U.S. 471, 482–83, 119 S. Ct. 2139, 2146–47 (1999)
(holding that “[a] person whose physical or mental impairment is corrected
by medication or other measures does not have an impairment that
presently ‘substantially limits’ a major life activity”). Individuals claiming
disability status under the ADA may not rely merely on evidence of a
medical diagnosis of an impairment but must present “‘evidence that the
extent of the limitation [caused by their impairment] in terms of their own
experience . . . is substantial.’” Toyota Motor Mfg., Ky., Inc. v. Williams,
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No. 07-20276
534 U.S. 184, 198, 122 S. Ct. 681, 691-92 (2002) (citation omitted).
Arredondo fails to show that his condition has substantially limited his
major life activities, and on the record presented he fails to show a
genuine issue of material fact that he is disabled. Further, assuming for
the sake of argument that Arredondo could make out a prima facie case,
he fails to show that the Center’s reason for the employment action was
a pretext for unlawful discrimination. See McInnis v. Alamo Comm. Coll.
Dist., 207 F.3d 276, 280 (5th Cir. 2000).
7. To the extent Arredondo makes other arguments in his brief, some for the
first time on appeal, we are not persuaded.
AFFIRMED.
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