Queen E. Parker v. Economic Opportunity for Savannah-Chatham County Area, Inc.

Case: 14-11743 Date Filed: 10/01/2014 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 14-11743
Non-Argument Calendar
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D.C. Docket No. 4:12-cv-00315-WTM-GRS

QUEEN E. PARKER,

Plaintiff-Appellant,

versus

ECONOMIC OPPORTUNITY FOR
SAVANNAH-CHATHAM COUNTY AREA, INC.,
JOHN H. FINNEY,
TERRY TOLBERT,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
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(October 1, 2014)

Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

Queen Parker appeals the grant of summary judgment to her former

employer, Economic Opportunity for Savannah-Chatham County Area, Inc.
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(“Economic Opportunity”), its executive director John H. Finney, and its deputy

director Terry Tolbert, in her lawsuit alleging retaliation under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). Parker argues that: (1) the

district court erred by granting summary judgment because there were disputed

issues of fact concerning the actions of Economic Opportunity, Finney, and

Tolbert; (2) the district court improperly denied her motion for partial summary

judgment on liability, because she presented direct evidence that she was

terminated for opposing the unlawful actions; and (3) summary judgment on her

ADA retaliation claim arising under the participation clause was improper, since

Economic Opportunity, Finney, and Tolbert did not specifically move for summary

judgment on that claim. After careful review, we affirm. 1

We review a grant of summary judgment de novo, construing the facts and

drawing all reasonable inferences from those facts in the light most favorable to the

nonmovant. Holly v. Clairson Indus., L.C.C., 492 F.3d 1247, 1255 (11th Cir.

2007). A party may move for summary judgment, “identifying each claim or

defense -- or the part of each claim or defense -- on which summary judgment is

sought.” Fed.R.Civ.P. 56(a). Summary judgment is appropriate only “if the

1
However, the motion by Economic Opportunity for Savannah-Chatham County Area, Inc.,
John H. Finney, and Terry Tolbert for an award of damages and costs pursuant to 28 U.S.C. §§
1912 and 1927, and Federal Rule of Appellate Procedure 38 is DENIED.
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movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Id.

First, we are unpersuaded by Parker’s claim that the district court erred in

granting summary judgment on her retaliation claim under the Opposition Clause

of the ADA. The Opposition Clause provides that “[n]o person shall discriminate

against any individual because such individual has opposed any act or practice

made unlawful by” the Act. 42 U.S.C. § 12203(a). It creates a prohibition on

retaliation under the ADA similar to Title VII’s prohibition on retaliation;

therefore, we assess ADA retaliation claims under the same framework employed

for retaliation claims arising under Title VII. Stewart v. Happy Herman's Cheshire

Bridge, 117 F.3d 1278, 1287 (11th Cir. 1997). A claim of retaliation under the

ADA gives rise to a private cause of action. 42 U.S.C. §§ 12203(c).

To establish a prima facie case of retaliation under the ADA, a plaintiff must

show that: (1) she engaged in a statutorily protected expression; (2) she suffered an

adverse employment action; and (3) there was a causal link between the adverse

action and her protected expression. Stewart, 117 F.3d at 1287. A plaintiff may

establish her prima facie case through direct evidence or circumstantial evidence.

Carter v. Three Springs Res. Treatment, 132 F.3d 635, 641 (11th Cir. 1998). At

issue here is whether Parker established the first prong of her prima facie case --

which a plaintiff can demonstrate by showing that she reasonably believed she was

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opposing an employer’s unlawful conduct. Howard v. Walgreen Co., 605 F.3d

1239, 1244 (11th Cir. 2010). While the opposed act need not actually be unlawful,

a plaintiff must have a subjective good faith belief that the opposed act is unlawful,

and this belief must also be objectively reasonable. Id.

Parker’s retaliation claim implicates Title III of the ADA, which seeks to

provide individuals with disabilities access to public accommodations owned,

leased, or operated by private entities. See 42 U.S.C. § 12182(a). Under Title III,

a public accommodation “shall remove architectural barriers in existing facilities . .

. where such removal is readily achievable.” 28 C.F.R. § 36.304(a). This may

include creating designated accessible parking spaces. Id. § 36.304(b)(18).

Here, the district court properly granted summary judgment in favor of

Economic Opportunity because Parker did not establish that she was engaged in a

statutorily protected expression. First, it was not unlawful for Economic

Employment to refuse to enforce parking in a handicapped parking space located

on a public city street because Economic Opportunity satisfied the requirements of

Title III of the ADA by having a handicapped parking space available in its private

lot. See id.

Second, Parker failed to show a reasonable belief that the actions of

Economic Opportunity, Finney, and Tolbert were unlawful under the ADA.

Assuming, arguendo, that Parker’s belief was subjectively reasonable, she did not

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demonstrate that it was objectively reasonable. The subject handicapped parking

spaces were located on a public street, and the police department was responsible

for enforcement of handicapped parking rules in public parking spaces. Moreover,

Parker actually called the police to enforce the parking rules with respect to the

subject handicapped space. Thus, it was not objectively reasonable to believe that

Economic Opportunity, Finney, and Tolbert were required to direct an employee to

move her car from a public parking spot for a violation of parking regulations.

Nor did the district court err in granting summary judgment on Parker’s

retaliation claim under the Participation Clause of the ADA. Under the

Participation Clause, an employee is protected from retaliation by her employer if

she “made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under” the Act. 42 U.S.C. § 12203(a). With

respect to the identical clause found in Title VII, we have held that the clause

exists to protect proceedings and activities which occur in conjunction with or after

the filing of a formal charge with the Equal Employment Opportunity Commission

(“EEOC”). EEOC v. Total Sys. Servs., 221 F.3d 1171, 1174 (11th Cir. 2000).

Thus, at a minimum, some employee must file a charge with the EEOC or

otherwise instigate proceedings under the statute for the conduct to fall within the

purview of the participation clause. Id. at 1174 n.2.

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Here, Parker’s complaint did not allege a claim under the participation

clause of the ADA. Parker did not aver that, prior to her termination, she filed a

claim with the EEOC regarding discrimination in violation of the ADA or assisted

in the investigation of another employee’s formal ADA claim. To the extent that

Parker alleged that she was assisting the police department with an investigation

related to the illegal use of the handicapped parking space, this investigation

related to parking regulations, and not ADA violations. But assuming, arguendo,

that Parker did allege a participation clause claim, Economic Opportunity, Finney,

and Tolbert moved for summary judgment on all claims and made arguments

addressing each of the allegations in the complaint. Accordingly, the district court

properly granted summary judgment in their favor on all claims. 2

AFFIRMED.

2
Moreover, because Parker only cites the language of §12203(b) in her main brief, with no
further elaboration, she has abandoned this argument. See Singh v. United States AG, 561 F.3d
1275, 1278 (11th Cir. 2009) (holding that merely stating an issue exists, without further
argument or discussion, constitutes abandonment of that issue). To the extent she attempts to
delineate the claim in her reply brief, issues raised for the first time on reply are not reviewed.
See Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).
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