Bradford v. Cellxion LLC , 269 F. App'x 508 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2008
No. 07-30875 Charles R. Fulbruge III
Summary Calendar Clerk
LOUIS J BRADFORD
Plaintiff-Appellant
v.
CELLXION LLC
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:06-CV-1147
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Louis Bradford (“Bradford”) began work for Appellee Cellxion,
LLC (“Cellxion”) in May 2003 as a carpentry employee. On September 16, 2004,
Bradford suffered a heart attack that required a brief hospitalization and several
weeks of recovery time. After exhausting leave available under the Family and
Medical Leave Act (“FMLA”), Bradford attempted to return to work in December
2004, but his doctor’s note did not clear him for work until Bradford’s next
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30875
medical appointment in February 2005. Cellxion officials offered Bradford an
additional thirty days of leave for him to return to his doctor and attempt to
obtain a work release. Bradford, however, rejected the offer. Cellxion then
terminated Bradford’s employment on December 9, 2004.
Bradford filed a charge of discrimination with the EEOC, alleging
discrimination on the basis of disability (coronary artery disease). After
receiving a right-to-sue letter from the EEOC, Bradford–acting pro se–filed the
present suit, alleging that he was denied a reasonable accommodation in
violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq.
Bradford and Cellxion thereafter filed cross-motions for summary
judgment. The district court denied Bradford’s motion for summary judgment
and granted Cellxion’s motion for summary judgment. The district court found
that Bradford had failed to produce any evidence to demonstrate that he was a
qualified individual under the ADA. Specifically, the district court found that
Bradford’s impairment did not substantially limit any major life activity for
more than the ordinary recuperation time,1 and, therefore, Bradford’s claim
failed because he was not “disabled” under the ADA. Bradford now appeals.2
Bradford, however, wholly fails to argue how the district court’s
determination that he is not “disabled” under the ADA is erroneous. Bradford
does not make legal arguments but only conclusory assertions that he produced
1
The ADA defines disability as “a physical or mental impairment that substantially
limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)(A).
Furthermore, “[t]he impairment’s impact must . . . be permanent or long term.” Toyota Motor
Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002). The district court found that within
several weeks or a few months after his heart attack, Bradford was able to participate in major
life activities such as completing household chores, working as a busboy at a restaurant,
driving, fishing, and hunting.
2
The district court also granted Cellxion summary judgment on its counterclaim for
money it loaned to Bradford. Bradford does not appeal this ruling.
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No. 07-30875
sufficient evidence creating a genuine issue of material fact and that the district
court erred. Federal Rule of Appellate Procedure 28(a)(4) requires that
“appellant’s argument contain the reasons he deserves the requested relief with
citation to the authorities, statutes and parts of the record relied on.” Weaver v.
Puckett, 896 F.2d 126, 128 (5th Cir. 1990) (internal quotations omitted)
(emphasis added). “Although we liberally construe briefs of pro se litigants and
apply less stringent standards to parties proceeding pro se than to parties
represented by counsel, pro se parties must still brief the issues and reasonably
comply with the standards of Rule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995) (footnote omitted). Because Bradford makes no argument as to why
the summary judgment evidence creates a genuine issue of fact regarding the
impact of his impairment on his major life activities, Bradford has abandoned
this argument.3 See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993)
(holding that issues not argued are abandoned).
Bradford does argue that he need not have an impairment that
substantially limits major life activities because the ADA also protects those who
are “regarded as having such an impairment.” 42 U.S.C. § 12102(2)(C).
Bradford, however, never claimed that Cellxion regarded him as disabled or
presented this claim to the district court, and he cannot raise it now for the first
time on appeal. FDIC v. Mijalis, 15 F.3d 1314, 1327 (5th Cir. 1994) (“If an
argument is not raised to such a degree that the district court has an
opportunity to rule on it, we will not address it on appeal.”).
3
The closest Bradford comes to making an actual argument is when Bradford cites
evidence that his manual tasks are limited to 50 pounds. The district court, however,
considered this evidence and determined that this limitation did not limit any of Bradford’s
major life activities. In his appeal, Bradford simply repeats this limitation but wholly fails to
explain how this limitation impairs any major life activity. Such an “argument” is simply
insufficient.
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No. 07-30875
Furthermore, on appeal, Bradford seeks to assert claims under Title VII
and the FMLA. Bradford attempted to amend his pleadings before the district
court to include these claims. The district court denied Bradford’s motion to
amend for failure to exhaust administrative remedies–for his Title VII
claim–and for failure to allege sufficient facts to state a claim–for his FMLA
claim. Bradford has not appealed that ruling to this Court, and these claims are,
therefore, not properly before us. Fless v. State Farm Lloyds, 392 F.3d 802, 806-
07 & n.12 (5th Cir. 2004).
Finally, Bradford’s convoluted reply brief asserts new arguments
regarding the alleged failure of the district court to strike an unsigned admission
and bad faith by Cellxion for failing to send him a copy of a filing. This Court,
however, “will not consider . . . new claim[s] raised for the first time in an
appellate reply brief.” United States v. Prince, 868 F.2d 1379, 1386 (5th Cir.
1989).
AFFIRMED.
4