Mendicino v. Dell Computer

* 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that this opinion should not be published and is not precedent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
FOR THE FIFTH CIRCUIT
No. 02-50363
Summary Calendar
FRANK D. MENDICINO,
Plaintiff-Appellant,
versus
DELL COMPUTER,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(A-01-CA-561-H)
December 3, 2002
Before BARKSDALE, DEMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Frank D. Mendicino, pro se, appeals the summary judgment
granted his former employer, Dell Computer, on his discrimination
claim under the Americans with Disabilities Act. A summary
judgment, reviewed de novo, is appropriate where, viewing the
evidence in a light most favorable to the non-movant, there is no
genuine issue of material fact and the movant is entitled to a
judgment as a matter of law. E.g., Hunt v. Rapides Healthcare
Sys., LLC, 277 F.3d 757, 762 (2001). Mendicino maintains there are

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material fact issues concerning whether he was “disabled” as
defined by the ADA and whether Dell knew of his disability.
For an ADA claim, Mendicino must first show he has a protected
disability. E.g., Hamilton v. Southwestern Bell Tel. Co., 136 F.3d
1047, 1050 (5th Cir. 1998). Mendicino suffers from hydrocephalus,
a condition in which “an excessive amount of cerebrospinal fluid,
usually under increased pressure, [exists] within the skull”. THE
AMERICAN MEDICAL ASSOCIATION, ENCYCLOPEDIA OF MEDICINE (Charles B. Clayman,
M.D. ed., 1989). The evidence shows that, because of this
condition, Mendicino cannot participate in tumbling, contact sports
or heavy lifting; and he suffers from sporadic seizures, which do
not prevent him from driving a car. Mendicino has failed to make
the threshold showing of disability, because the impairment does
not “prevent[] or severely restrict[]” him from engaging in
activities “of central importance to most people’s daily lives”.
Toyota Motor Mfg., Kentucky, Inc. v. Williams, ___ U.S. ___, 122 S.
Ct. 681, 691 (2002); 42 U.S.C. § 12102(2)(A). See Sherrod v.
American Airlines, Inc., 132 F.3d 1112, 1120 (5th Cir. 1998)
(holding inability to do heavy lifting is not a substantial
limitation on a major life activity).
Further, even if Mendicino made the threshold showing, he
admits to neither requesting an accommodation nor informing Dell of
his disability until after his termination. “If the employee fails
to request an accommodation, the employer cannot be held liable for

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failing to provide one.” Taylor v. Principal Fin. Group, 93 F.3d
155, 165 (5th Cir. 1996), cert. denied 519 U.S. 1029 (1996). See
also 42 U.S.C. § 12112(b)(5)(A) (defining “discrimination” as “not
making reasonable accommodations to the known physical or mental
limitations....” (emphasis added)). Finally, Mendicino asserts
the district court erred in denying several of his motions
including: a motion to appoint counsel, a motion for leave to amend
his complaint, various discovery motions, and a motion for
reconsideration. He also contests the district court’s use of the
magistrate judge. There was no reversible error.
AFFIRMED

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