UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

Summary Calendar No. 02-30280 _______________________

CLAUDELL A. LANDRY, Plaintiff-Appellant,

versus

HOWARD ZERANGUE, SR, Individually and in his official capacity as Sheriff, St Landry Parish; SHERIFF’S DEPARTMENT ST LANDRY PARISH,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana 00-CV-1510 _________________________________________________________________ October 28, 2002

Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff Claudell Landry appeals the district court’s

grant of summary judgment in favor of Defendant Howard Zerangue,

Sr. on Landry’s Americans with Disabilites Act and Title VII sex

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. discrimination claims.1 Landry appeals on two grounds: (1) the

district court erred in granting summary judgment without hearing

oral arguments from Landry’s counsel and (2) there are genuine

issues of material fact that preclude summary judgment in favor of

Zerangue. Finding no reversible error in the judgment, we AFFIRM.

Landry first argues that the district court committed

reversible error by entering summary judgment in favor of Zerangue

prior to the purported hearing date. Specifically, Landry argues

that the court moved the hearing date on her opposition to

Zerangue’s motion for summary judgment from January 17, 2002 to

February 14, 2002 without sufficient notice as required under the

district court’s local rules and that the district court erred in

granting summary judgment at the January 17 hearing without having

heard oral arguments from Landry’s counsel.

We find Landry’s argument to be without merit. The

record plainly indicates that the court set the hearing for

Zerangue’s summary judgment motion on January 17, 2002 and that the

hearing set for February 14, 2002 was on Landry’s cross-motion for

summary judgment. Landry argues that a January 15th amended notice

changed the hearing on Landry’s opposition to Zerangue’s motion

1 Defendant Sheriff’s Department St. Landry’s Parish was dismissed by the district court because Landry failed to serve the Sheriff’s Department within 90 days of the institution of the case. Landry did not appeal this ruling. Additionally, Landry does not appeal the dismissal of her state law claims.

2 from January 17th to February 14th. The January 15th notice,

however, clearly refers to Landry’s cross-motion for summary

judgment. It does not refer to Zerangue’s summary judgment motion

or Landry’s opposition. Thus, Landry’s argument that Zerangue’s

motion was granted without proper notice to Landry is without

merit.

Furthermore, the district court’s grant of summary

judgment without Landry’s oral argument is not improper. Courts

need not hold oral arguments on motions. See Arkwright-Boston

Mfrs. Mut. Ins. Co. v. Aries Marine Corp.,

(5th

Cir. 1991) (recognizing district court’s power to grant summary

judgment sua sponte provided proper notice is given). Landry

received sufficient notice as to when the motion would be heard and

taken under advisement by the court’s notice dated December 10,

2001. Landry filed her brief in opposition to Zerangue’s motion

for summary judgment on December 17, 2001. Thus, the district

court did not err in granting summary judgment for Zerangue despite

the failure of Landry’s counsel to appear for the hearing.

In any event, any error in this case is harmless. After

the district court granted summary judgment Landry filed a “Motion

to Vacate the Judgment and/or New Trial and (Alternatively) Request

for Oral Argument and Written Reasons for Judgment.” The court

denied this motion, except with respect to the request for written

3 reasons. Since Landry had an opportunity to provide additional

evidence and arguments after the court’s grant of summary judgment,

any error by the court is harmless. See Winters v. Diamond

Shamrock Chem. Co.,

(5th Cir. 1998).

We review the district court's grant of summary judgment

de novo. Morris v. Covan World Wide Moving, Inc.,

(5th Cir. 1998); Fed. R. Civ. P. 56(c). At the summary judgment

stage, a court may not weigh the evidence or evaluate the

credibility of witnesses, and all justifiable inferences will be

made in the nonmoving party's favor.

(citing Anderson v.

Liberty Lobby, Inc.,

,

,

(1986)). This burden is not satisfied with some

metaphysical doubt as to the material facts, by conclusory

allegations, by unsubstantiated assertions, or by only a scintilla

of evidence. Little v. Liquid Air Corp.,

(5th

Cir. 1994)(en banc).

The ADA prohibits discrimination "against a qualified

individual with a disability because of the disability of such

individual in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment."

(a). As a threshold requirement in

an ADA claim, the plaintiff must, of course, establish that she has

4 a disability. De la Torres v. Bolger,

(5th

Cir. 1986). The ADA defines a disability as follows: (A) a physical

or mental 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.

(2).

Landry did not produce any evidence to support her claim

that she is disabled within the meaning of the ADA.2 Landry has

not identified what major life activities she believes are limited

by her cervical neuropathy. Landry points to the opinion of Dr.

Calvin White, her treating physician, that she could not perform

the job tasks assigned to her position at the communications desk

and that she should be placed on an indefinite medical leave. The

treating physician’s opinion is no more specific than this.

Additionally, Dr. White, in his deposition testimony that is in the

record, did not identify any major life activity which Landry could

not perform. As a matter of law, the inability to perform a

particular job does not constitute an substantial limitation to

working. Sherrod v. American Airlines,

(5th

2 Landry in her opening brief does not provide any citations to the record at all, let alone any cites identifying any evidence that raises an issue of material fact. The facts addressed here are found in Landry’s reply brief (although lacking citation to the record) and by the Court’s review of the record. The Court would observe that Landry’s failure to support her brief with citations to the record and to the relevant case law violates Fed. R. App. P. 28(a)(6) and 5th Cir. R. 28.2.3

5 Cir. 1998). Thus, Landry failed to raise an issue of material fact

as to whether she is disabled within the terms of the ADA.

Furthermore, to recover under the ADA, Landry must

establish that she is a “qualified individual.”

(8). To be a qualified individual, Landry must show she can

perform the essential functions of the employment position that

such individual holds or desires, with or without reasonable

accommodation. Rogers v. Int’l Marine Terminals,

, 759

(5th Cir. 1996). Landry did not produce any evidence that she

could perform her job with or without reasonable accommodation.

The district court held that Landry did not raise a

genuine issue of material fact that she was disabled or that she is

a qualified individual under the ADA. Upon review of the record,

we agree. Landry failed to produce any evidence that she is

substantially limited from any major life activity

Landry also brings a claim under Title VII of the Civil

Rights Act of 1964 alleging disparity in pay and treatment on

account of Landry’s sex. To establish a Title VII discrimination

claim Landry must establish that 1) she was a member of a protected

class, (2) she was qualified for the position she lost, (3) she

suffered an adverse employment action, and (4) that others

similarly situated were more favorably treated. Urbano v.

Continental Airlines,

(5th Cir. 1998).

6 If Landry establishes her prima facie case, Zerangue has

the opportunity to rebut the inference of discrimination by

producing a legitimate, non-discriminatory business justification

for the action under the McDonnell-Douglas burden shifting

approach. Lacy v. Sitel Corp.,

(5th Cir. 2000)

(citing McDonnell Douglas Corp. v. Green,

,

,

(1973)). To avoid summary judgment,

Landry must show that the evidence creates (1) a fact issue

regarding whether each of the employer's stated reasons was what

actually motivated it and (2) a reasonable inference that sex was

a determinative factor in the actions of which plaintiff complains.

Lawrence v. University of Texas Medical Branch at Galveston,

(5th Cir. 1999). The plaintiff must proffer

“substantial” evidence to establish the prima facie case and to

rebut the employer's reasons must be "substantial.

On appeal,

Landry provides no citations to the record of any evidence that

raises an issue of material fact. Nor does this court find any.

Thus, we agree with the trial court in its grant of summary

judgment on the Title VII claim.

Landry also appeals the court’s taxing costs against her.

Landry again provides no citation to any law supporting her

argument. We do not find any error in the district court’s

decision to tax costs.

7 III. CONCLUSION

Because we find no reversible error in the district

court’s decision to grant of summary judgment, the judgment of the

district court is AFFIRMED.

8