Jimenez v. Potter

* 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 22, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 06-50104
(Summary Calendar)
_________________
OSCAR JIMENEZ,
Plaintiff-Appellant,
versus
JOHN E POTTER, Postmaster General, United States Postal Service,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(3:03-CV-169)
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Oscar Jimenez appeals the district court’s grant of summary judgment in favor of his
employer, the United States Postal Service (“USPS”), on claims that USPS retaliated against him in
violation of Title VII and violated his rights under the Rehabilitation Act of 1973. We affirm.

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1 Jimenez does not argue, on appeal, that he suffered unlawful retaliation as a result of this
second incident. Thus, this claim is waived. See Edwards v. Johnson, 209 F.3d 772, 776 n.1 (5th
Cir. 2000); Justiss Oil Co., Inc. v. Kerr-McGee Refining Corp., 75 F.3d. 1057, 1067 (5th Cir. 1996).
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Jimenez was a Supervisor of Distribution Operations for USPS in El Paso between 1985 and
his retirement in 2001. Jimenez’s Title VII and Rehabilitation Act claims are based on two workplace
incidents: first, when USPS demoted him for two months, and second, when a manager yelled at him
after Jimenez accused a subordinate employee of acting aggressively toward him.1 The district court
granted summary judgment in favor of USPS, concluding that Jimenez failed to raise a genuine issue
of material fact to substantiate his claims.
We review a grant of summary judgment de novo. Honeywell Intern., Inc. v. Phillips
Petroleum Co., 415 F.3d 429, 434 (5th Cir. 2005). We affirm only when there is no issue of material
fact and the movant is entitled to judgment as a matter of law. Id. We may affirm a summary
judgment on any ground supported by the record, even if it is different from that relied on by the
district court. Holtzclaw v. DSC Communications Corp., 255 F.3d 254, 258 (5th Cir. 2001) (citing
Tex. Refrig. Supply, Inc. v. FDIC, 953F.2d 975, 980 (5th Cir. 1992)).
Jimenez first contends that his two-month demotion constituted unlawful retaliation under
Title VII. To establish a prima facie case of retaliation under Title VII, Jimenez must present some
evidence that he (1) engaged in activity protected by Title VII; (2) the employer took adverse
employment action against him; and (3) a causal connection exists between that protected activity and
the adverse employment action. See Shirley v. Chrysler First, Inc., 970 F.2d 39, 41 (5th Cir. 1992).
The summary judgment evidence indicates that Jimenez did not engage in a protected activity.
Jimenez asserts that he was demoted in retaliation for filing a workers’ compensation claim in 1994;
however, a workers’ compensation claim is not a protected activity under Title VII. Only those

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2 In his response to USPS’s motion for summary judgment before the district court, Jimenez
makes reference to two other Title VII protected activities for which he suffered an adverse
employment action. One was an “EEO complaint” in 1994; another is an “EEO complaint” in March
1998, before his demotion. However, Jimenez presented no evidence of these alleged complaints in
the district court.
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activities listed under Title VII are protected from retaliation, and filing for worker’s compensation
is not one. See 42 U.S.C. § 2000e-3(a) (defining retaliation as suffering an adverse employment
action “because he has opposed any practice made an unlawful employment practice by this
subchapter”) (emphases added); compare 5 U.S.C. § 8101 et. seq. (providing for workers’
compensation benefits under the Federal Employees Compensation Act).
Nor can Jimenez claim that he was retaliated against for filing an internal complaint with
USPS’s equal employment office (“EEO”). His EEO complaint was filed after his demotion, which
could not possibly have been the result of his EEO complaint.2 Thus, Jimenez cannot meet the
threshold for a retaliation claim because he cannot show a causal connection between his EEO
complaint and his two-month demotion. See Shirley, 970 F.2d at 41. As Jimenez has not submitted
any evidence that he engaged in a protected activity or that there was a causal connection between
the protected activity and the adverse employment action, he has failed to establish a prima facie case
of retaliation under Title VII.
Next, Jimenez argues that the district court erred in concluding that Jimenez cannot prove his
claims under the Rehabilitation Act because he does not show that he suffers from a disability that
substantially limits a major life activity. The Rehabilitation Act prohibits discrimination against an
otherwise qualified individual with a disability in programs that receive federal funding, including
employment with USPS. See 29 U.S.C. § 794(a). In order to bring a discrimination claim under the
Rehabilitation Act, Jimenez’s prima facie case must present some evidence that he (1) was an

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3 Jimenez does not argue that his disabilities have caused him to be substantially limited in
any other major life activity.
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individual with a disability; (2) was otherwise qualified; (3) worked for a program that receives
federal funding; (4) and was denied the benefits of his employment or subjected to discrimination
solely because of his disability. See Chandler v. City of Dallas, 2 F.3d 1385, 1390 (5th Cir. 1993).
The Act defines “disability” as “a physical or mental impairment that substantially limits one
or more major life activities.” 29 U.S.C. § 705(9)(B). We look to cases and regulations interpreting
the Americans with Disabilities Act to define disability under the Rehabilitation Act. Chandler, 2
F.3d at 1391. Jimenez contends that he is disabled because he suffers from headaches, anxiety, panic
attacks, post traumatic stress disorder, stress, insomnia, cramping in his neck, ear aches, lack of
concentration, gastrointestinal problems, vomiting and diarrhea, rectal bleeding, stomach pains, and
diabetes. He argues that these maladies have caused him to be “substantially limited in the major life
activity of working.” See 29 C.F.R. § 1630.2(i) (listing “working” as a major life activity). However,
while Jimenez establishes through medical records and physician testimony that he has a litany of
medical impairments, he does not proffer evidence showing that such impairments substantially limit
his ability to work.3 See Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5th Cir. 1996)
(requiring showing that impairments substantially limit a major life activity, not merely that the
individual is impaired). In fact, the evidence suggests the opposite. Jimenez spent sixteen years
working successfully for the USPS, the very “major life activity” in which he claims to be impaired
because of his disability. Once diagnosed with anxiety disorder, panic attacks, and diabetes in 1993,
still he successfully fulfilled his position as supervisor until his retirement in 2001. During this time,
Jimenez’s received achievement awards, pay increases, and letters of appreciation from managers for

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job performance. See Gowesky v. Singing River Hosp. Sys., 321 F.3d 503, 508 (5th Cir. 2003)
(noting evidence that employee retained approval by her supervisors shows her not to be limited from
working); see also Hamilton v. Sw. Bell Tel. Co., 136 F.3d 1047, 1051 (5th Cir. 1998). His fine
employment record was hardly limited by his disabilities.
Jimenez’s only support that his ailments substantially limit his ability to work is the testimony
of his physician, who stated that Jimenez’s “afflictions affect major life activities.” However, this
same doctor also testified that he “did not believe that [Jimenez] was disabled as far as going to
work.” Additionally, to the extent that these two complained-of episodes might suggest that Jimenez
is impaired in doing his job as a supervisor, we note that these were mere discreet, isolated incidents
of workplace strife, which do not amount to a disability under the Rehabilitation Act. See Hamilton,
136 F.3d at 1051 (“[T]emporary, non-chronic impairments of short duration, with little or no
permanent long-term impact, are usually not disabilities.”). Thus, we agree with the district court that
Jimenez has failed to establish a prima facie case of a claim under the Rehabilitation Act.
For the foregoing reasons, we AFFIRM the judgment of the district court.

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