United States Court of Appeals Fifth Circuit F I L E D REVISED OCTOBER 26, 2005 October 18, 2005 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _____________________

No. 04 31100 ____________________

BARBARA CUTRERA,

Plaintiff-Appellant,

v.

BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY; LOUISIANA STATE UNIVERSITY FOUNDATION; MARIAN CAILLIER, Defendants - Appellees.

__________________

Appeal from the United States District Court For the Middle District of Louisiana

_______________________

Before DAVIS, JONES, and GARZA, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Appellant Barbara Cutrera, who suffers from a form of macular

degeneration, alleges that her former employer, the Louisiana State

University Foundation (“LSU Foundation”), the Board of Supervisors

of Louisiana State University (“LSU Board”), and LSU ADA

Coordinator Marian Callier failed to accommodate her disability and

terminated her in violation of the Americans with Disabilities Act

of 1990 (“ADA”),

et seq, and

.

Cutrera appeals the district court’s grant of summary judgment for

Appellees, and specifically the court’s holding that (1) Appellant

-1- is not disabled for purposes of the ADA, (2) Appellant failed to

make out a retaliation claim under the ADA, and (3) Appellant

failed to make out a claim under § 1983. Because we conclude that

Appellant raises a genuine question of material fact regarding her

disability status under the ADA, we reverse in part, affirm in

part, and remand.

I.

Appellant Barbara Cutrera was originally hired by LSU as a

coordinator/research associate in the LSU Law Library in 1989. In

1993, Cutrera began experiencing difficulty tracking moving objects

and driving at night, as well as numbness in her eyelids when

reading from a computer screen. After consultation with several

doctors, Cutrera was diagnosed with Stargardt’s disease, a form of

macular degeneration.1 Cutrera’s vision has steadily deteriorated,

and she now has virtually no central vision in her left eye, and

little in her right. Cutrera retains some limited peripheral

vision primarily in her right eye. There is no known cure or

treatment for Stargardt’s disease, and the vision impairment cannot

be corrected with eyeglasses, contact lenses, or surgery.

1 Stargardt's disease (also known as fundus flavimaculatus and Stargardt's macular dystrophy) is the most common form of inherited juvenile macular degeneration. It causes a progressive loss of central vision and, in the early stages patients may have good visual acuity, but may experience difficulty with reading and seeing in dim lighting. The progression of vision loss is variable and can start with a visual acuity of 20/40 and decrease rapidly to 20/200 (legal blindness). There is no effective treatment for Stargardt's disease.

-2- Although Cutrera’s vision impairment was minor at the time of

her diagnosis, by 1997 her vision had deteriorated enough that she

was having difficulty reading information that was handwritten or

typed in small fonts, and Cutrera notified her supervisors at the

LSU Law Library of her condition. Cutrera formally requested

accommodation for her impairment, and the LSU Law Library granted

her additional time to complete her job tasks.

In 1998, Cutrera applied for and was offered a position as a

research assistant with the LSU Foundation. The LSU Foundation

exists to encourage financial support for LSU, and the Foundation

also manages most of the investments and serves as trustee for most

of the private assets contributed for the benefit of the

University. Cutrera was hired to research prospective donors to

LSU and maintain the donor files kept by the Foundation. Cutrera

described her visual impairment during her interview at the

Foundation.

Cutrera began work at the LSU Foundation on July 28, 1998, and

soon discovered she was having difficulty reading many of the

materials included in the donor files, such as handwritten notes

and newspaper clippings, as well as type displayed on her computer

screen. After notifying her supervisors, Cutrera scheduled

meetings with a vocational rehabilitation counselor and the LSU ADA

Coordinator, Marian Callier. During the meeting with Callier on

August 3, 1998, Callier terminated Cutrera and informed her that

she need not return to work.

-3- On August 2, 1999, Cutrera filed suit in Louisiana state

court, alleging disability discrimination and retaliation in

violation of the ADA, deprivation of her liberty interest in

violation of § 1983, and intentional infliction of emotional

distress in violation of state tort law. After removal, the

District Court granted summary judgment for Appellees on the

grounds that (1) Cutrera is not disabled for purposes of the ADA,

(2) Cutrera failed to make out a retaliation claim under the ADA,

(3) Cutrera failed to make out a claim under § 1983, and (4)

Cutrera failed to make out a state law tort claim. This appeal

followed.

II.

We review the district court’s court’s summary judgment

rulings de novo, applying the same standard as the district court.

Wyatt v. Hunt Plywood Co., Inc.,

(5th Cir. 2002).

The Court may grant summary judgment where there is “no genuine

issue as to any material fact” and the moving party is entitled to

judgment as a matter of law. FED. R. CIV. P. 56(c). A “dispute

about a material fact is ‘genuine’ ... if the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc.,

(1986); Mason v.

United Air Lines,

(5th Cir. 2001). Therefore,

summary judgment is appropriate if the nonmovant fails to establish

facts supporting an essential element of her prima facie claim.

-4- Celotex Corp. v. Catrett,

(1986); Mason,

. In making the determination of whether summary judgment

was proper, the Court reviews the facts, and all inferences drawn

from those facts, in the light most favorable to the party opposing

the motion. Jurgens v. EEOC,

(5th Cir. 1990).

We will not, however, “weigh the evidence or evaluate the

credibility of witnesses....” Anderson,

; Mason,

.

III.

A.

1.

Cutrera argues first that the district court erred in

concluding that she is not disabled for purposes of the ADA, as

required to make out a prima facie case of discrimination under the

ADA.2 The term “disability” under the ADA means: “(A) a physical

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). The EEOC’s regulations state that the term “major life

activities” includes “functions such as caring for oneself,

2 The ADA prohibits an employer from discriminating “against a qualified individual with a disability because of the disability of such individual in regard to ... the hiring ... or discharge of employees.”

(a). To establish a prima facie case for discrimination under the ADA, a plaintiff must be a qualified individual with a disability. Mason,

(5th Cir. 2001).

-5- performing manual tasks, walking, seeing, hearing, speaking,

breathing, learning, and working.”

(i).

The District Court granted summary judgment to Appellees on

the grounds that Appellant failed to demonstrate that her vision

impairment imposed a substantial limitation on her ability to see

or work. Cutrera contends on appeal that the record reflects a

genuine question of material fact regarding whether her impaired

vision substantially limits the major life activities of seeing and

working.

Our inquiry into whether Cutrera’s impairment substantially

limits her ability to see is guided by Albertson’s Inc. v.

Kirkingburg,

(1999) and Sutton v. United Airlines,

Inc.,

(1999). In Kirkingburg, the Supreme Court held

that the ADA “requires monocular individuals, like others claiming

the Act’s protection, to prove a disability by offering evidence

that the extent of the limitation in terms of their own experience,

as in loss of depth perception and visual field, is substantial.”

Kirkingburg,

. However, the Court also noted that

monocular individuals do not have an “onerous burden” and that

“people with monocular vision ‘ordinarily’ will meet the Act’s

definition of disability.”

In Sutton, the Supreme Court held

that mitigating measures must be taken into account in judging

whether an individual has a disability. Sutton,

(holding that claimants with 20/200 vision or worse in both eyes

who failed to meet the airline’s minimum vision requirement of

-6- uncorrected visual acuity of 20/100 were not disabled within the

meaning of the ADA because their vision was 20/20 or better

corrected).

Thus, Cutrera must demonstrate that her vision impairment,

taking into account any mitigating measures, substantially limits

her ability to see in terms of her own experience. The record

reflects that a fact issue is presented on this question. The

testimony of both Cutrera and Dr. David Newsome, a specialist in

retinal degeneration, demonstrates that Cutrera’s visual impairment

is not simply a lessening of visual acuity; it is a deterioration

of vision from the inside of her visual field out. The most severe

deterioration is in the center of her vision; she now has virtually

no central vision in her left eye, and little in her right.

Cutrera retains some limited peripheral vision primarily in her

right eye, but is legally blind in her left eye. Although

Cutrera’s condition is currently stable, Dr. Newsome testified that

it is very likely that Cutrera will continue to lose what little

vision she now retains. Cutrera testified that she now does not

believe it would be safe for her to drive, and has significant

difficulty reading small type, handwriting, or any writing with

poor contrast.

There is no known cure or treatment for Stargardt’s disease,

and the vision impairment cannot be corrected with mitigating

measures such as eyeglasses, contact lenses, or surgery. Rather

than adjusting to compensate for the vision impairment, as would

-7- occur in the normal case of reduced vision, Dr. Newsome testified

that Cutrera’s impairment forces her eyes to work against each

other, impairing her ability to read and visually track moving

objects. Rather than relying on her less-impaired eye, her more-

impaired eye actively interferes with her vision.

Dr. Newsome’s testimony regarding the extent of Cutrera’s

impairment, and Cutrera’s own testimony about the effect her

limited vision has on her ability to see give rise to a genuine

question of material fact on whether Cutrera is disabled under the

ADA. Because we find that Appellant raises a genuine question of

material fact with respect to a substantial limitation on her

ability to see, we need not address whether her impaired vision

also imposes a substantial limitation on her ability to work.

2.

Appellees offer as an alternate basis for affirming the

summary judgment the argument that Cutrera failed to request an

accommodation from the LSU Foundation. “In general ... it is the

responsibility of the individual with the disability to inform the

employer that an accommodation is needed.”

,

App. (1995). Once such a request has been made, “[t]he appropriate

reasonable accommodation is best determined through a flexible,

interactive process that involves both the employer and the

qualified individual with a disability.”

Thus, the employee’s

initial request for an accommodation triggers the employer’s

obligation to participate in the interactive process. Taylor v.

-8- Principal Financial Group, Inc.,

, 165 (5th Cir.), cert.

denied,

(1996). However, when an employer’s

unwillingness to engage in a good faith interactive process leads

to a failure to reasonably accommodate an employee, the employer

violates the ADA. See Loulseged v. Akzo Nobel Inc.,

(5th Cir. 1999) (citing Taylor v. Phoenixville School Dist.,

(3d Cir. 1999); Bultemeyer v. Fort Wayne

Community Schools,

(7th Cir. 1996)).

Cutrera argues that although she began the interactive process

by notifying her supervisors and meeting with the LSU ADA

coordinator, Appellees refused to discuss any steps that could be

taken to accommodate her disability, and instead terminated her

immediately. Appellees contend that Cutrera simply informed them

that she could not identify any reasonable accommodation which

would enable her to perform the tasks required of her.

Cutrera began work at the LSU Foundation on Tuesday, July 28,

1998. She testified that she was having difficulty reading many of

the materials included in the donor files, such as handwritten

notes and newspaper clippings, as well as type displayed on her

computer screen, almost immediately after beginning work. Cutrera

testified that after discussing the problems she was having with

her immediate supervisor, she scheduled an appointment with her

vocational rehabilitation counselor for Friday, July 31, 1998, to

discuss potential accommodations. Cutrera also scheduled a meeting

with Appellee Marian Callier, the LSU ADA Coordinator, for the

-9- following Monday, August 3, 1998. Cutrera testified that during

her meeting with Callier, she informed Callier that she had met

with her rehabilitation counselor, and that the rehabilitation

counselor could meet with Callier and the LSU Foundation in order

to discuss potential accommodations. Cutrera testified that

Callier instead terminated her at that meeting. Cutrera further

testified that she told Callier that she wanted to return to work

in order to find a solution, but that Callier told her there was no

need to do so.

Marian Callier testified, however, that Cutrera informed her

in the Monday meeting that she was unable to perform her job duties

and could not immediately identify an appropriate accommodation.

Callier concedes that she was aware of Cutrera’s meeting with a

rehabilitation counselor and her intention to return to work, but

nonetheless argues that Cutrera could not immediately identify a

workable accommodation at the Monday meeting, and therefore was

appropriately terminated.

An employer may not stymie the interactive process of

identifying a reasonable accommodation for an employee’s disability

by preemptively terminating the employee before an accommodation

can be considered or recommended. In this case, Callier’s

awareness of Cutrera’s meeting with a rehabilitation counselor and

her intention to return to work triggered the LSU Foundation’s

obligation to participate in an interactive process with Cutrera to

identify a reasonable accommodation for Cutrera’s disability.

-10- Reviewing these facts, and all inferences drawn from those facts,

in the light most favorable to Appellant Cutrera, we conclude that

summary judgment for Appellees based on the argument that Cutrera

failed to request an accommodation would be inappropriate.

B.

Appellant argues next that the District Court erred when it

granted summary judgment on her ADA retaliation claim. The

District Court found that appellant failed to prove any causal

connection between the protected activity asserted in Appellants

retaliation claim—requesting an accommodation from the LSU Law

Library in 1997 and applying for new positions following her

termination in 1998—and the adverse employment action. Appellant

now argues that the District Court failed to consider her request

for accommodations at the LSU Foundation in 1998 as a basis for the

alleged retaliation. However, Appellant’s new factual theory was

not raised in her complaint, nor raised in her opposition to

Appellee’s motion for summary judgment. We decline to consider

Appellant’s new arguments raised for the first time on appeal.

Greenberg v. Crossroads Sys., Inc.,

(5th

Cir. 2004). The District Court correctly dismissed the retaliation

claims.

C.

Appellant argues next that the District Court erred when it

granted summary judgment on her § 1983 claim, arguing that the

District Court ignored her First Amendment retaliation claim.

-11- Appellant’s First Amendment retaliation claim, however, was not

raised in her complaint, and instead was raised for the first time

in response to Appellee’s motion for summary judgment. A claim

which is not raised in the complaint but, rather, is raised only in

response to a motion for summary judgment is not properly before

the court. Fisher v. Metropolitan Life Ins. Co.,

(5th Cir. 1990).

The district court properly considered only Appellant’s § 1983

claims based on the equal protection and due process grounds raised

in the complaint and correctly granted summary judgment on the

claims as pled. Appellant has not briefed the equal protection or

due process issues on appeal, and has therefore waived those

claims. See Gomez v. Chandler,

(5th Cir. 1999)

(holding that where a claim is not briefed on appeal, it is

abandoned). Because Appellant failed to properly raise the First

Amendment claim, and has abandoned her equal protection and due

process arguments, we conclude that the district court correctly

granted summary judgment to Appellees on the § 1983 claims.

IV.

For reasons stated above, we conclude that Appellant has

raised a genuine question of material fact regarding her

disability status under the ADA and remand her ADA claim to the

District Court for further proceedings. We affirm the District

Court’s judgment in all other respects.

-12- Affirmed in part, reversed in part, and remanded.

-13-