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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10476
Non-Argument Calendar
________________________
D.C. Docket No. 5:16-cv-00402-MTT
NICOLA HUDSON,
Plaintiff-Appellant,
versus
TYSON FARMS, INC.,
Defendant-Appellee,
OLIVIA MCCLELLAN,
Defendant.
__________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(April 29, 2019)
Before WILSON, JORDAN, and BRANCH, Circuit Judges.
PER CURIAM:
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Nicola Hudson, a pro se plaintiff, appeals the district court’s grant of
defendant Tyson Farms, Inc.’s (“Tyson”) motion for summary judgment as to her
complaint alleging that Tyson discriminated against her in violation of the
Americans With Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C.
§ 12112(a). Hudson contends that the district court erred in determining that
(1) her back injury and asthma were not disabilities under the ADA, and (2) Tyson
did not fail to reasonably accommodate those disabilities.1 We affirm.
I. FACTUAL BACKGROUND
Hudson began working for Tyson as a tray packer in August 2015. Hudson’s
post-job offer health assessment showed that Hudson identified asthma and back
problems on her health assessment, but checked the box “No” when asked “Do you
have any work restrictions?” Prior to her Tyson employment, Hudson had been
employed as a Certified Nursing Assistant (“CNA”) at numerous skilled nursing
facilities.
Within her first week on the job, however, she complained of back pain to her
line leader. A day or two later, she was sent to the nurse’s station to discuss her back
complaints. The nurse on duty sent her home, and gave her a Job Placement Physical
1
Hudson originally listed a Tyson employee, Olivia McClellan, as an individual
defendant as well, but the district court later dismissed McClellan. Because Hudson does not
challenge that ruling on appeal, any issue in that respect is abandoned. Wilkerson v. Grinnell
Corp., 270 F.3d 1314, 1322 (11th Cir. 2001).
2
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Recommendations form to be filled out by her personal doctor. Hudson did not
mention her asthma to the nurse.
Tyson had mats and stands spread out throughout the plant, available for
employees to use. Hudson could alleviate her back pain by placing a floor mat on
the concrete floor to stand on, and was able to use a mat and stand during all of her
shifts except for part of one shift on September 9, 2015, when she was unable to find
any available. She requested Tyson assign her a specific mat and stand, but Tyson
declined to do so because there were not enough mats and stands for every employee.
Hudson testified that she saw her personal doctor, Dr. Oliver, on September
11, 2015. He imposed restrictions limiting the amount of time she could stand, and
required her to sit for 15 minutes for every hour of standing. After she returned to
work that evening with Dr. Oliver’s restrictions, Tyson told her that it would be
unable to accommodate those restrictions.
She then went to see another doctor, Dr. Inhulsen, and requested that he
remove Dr. Oliver’s restrictions and recommend instead that she use two floor mats
and a stand. She also requested an inhaler from Dr. Inhulsen. 2 Dr. Inhulsen’s
examination of Hudson determined that her back was “normal” with “full range of
motion, no costovertebral angle tenderness, no kyphosis, no scoliosis, [and] normal
2
She previously received medication for her asthma, but had not previously required an
inhaler.
3
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exam of spine.” He released her to work with no restrictions. Dr. Inhulsen’s notes
also state that Hudson requested that Dr. Inhulsen recommend she use two floor mats
and a stand while at work.
Hudson returned to work on September 15 with Dr. Inhulsen’s note, which
stated that she could return to work without any restrictions and recommended that
she use a stand and two floor mats. This time, Tyson said she could return to work,
and that she could use floor mats and a stand, which were available to employees
throughout the facility. Because Tyson had insufficient mats, however, it was still
unable to assign Hudson a specific mat and stand.
Later that same day, Hudson asked her line leader if she could leave her station
to use her inhaler, stating that the ammonia in the plant was aggravating her asthma.
The line leader instructed her to wait until her lunch break, which was in
approximately 10 minutes. She finished her shift, but did not come back to work the
next day. On September 17, she called Tyson and told them she would not be
returning.
After leaving Tyson, Hudson returned to her work as a CNA.
On September 6, 2016, Hudson filed the present suit against Tyson, alleging
that Tyson violated her rights under the ADA by failing to accommodate her
disabilities. Specifically, in her pro se complaint, she alleged that she was forced to
4
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resign in September 2015 after Tyson was unable to accommodate her back injury
and asthma.
Tyson, in turn, answered, denying liability and asserting certain defenses.
Following discovery, Tyson moved for summary judgment. The district court
granted Tyson’s motion, which Hudson timely appealed.
II. STANDARD OF REVIEW
We review a district court’s entry of summary judgment de novo. Hallmark
Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1276, 1283 (11th Cir. 2006).
However, we will not consider issues raised for the first time on appeal which were
not raised in the district court. Access Now, Inc. v. Southwest Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004).
A court shall grant summary judgment “if the 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.” Fed. R. Civ. P. 56(a). In determining whether there is a genuine
dispute of material fact, “[t]he evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). Although pro se pleadings are liberally construed,
a pro se litigant is still required to establish that there is a genuine issue of material
fact in order to avert summary judgment. Brown v. Crawford, 906 F.2d 667, 670
(11th Cir. 1990).
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III. ADA LEGAL STANDARDS
The ADA prohibits discrimination against a qualified individual on the basis
of disability. 42 U.S.C. § 12112(a). The ADA also imposes upon employers an
affirmative duty to provide reasonable accommodations for known disabilities,
unless doing so would result in undue hardship on the operation of the business.
42 U.S.C. § 12112(b)(5)(A).
The burden-shifting analysis applicable to Title VII also applies to ADA
claims of intentional disability discrimination. Hilburn v. Murata Elec. N. Am.,
Inc., 181 F.3d 1220, 1226 (11th Cir. 1999). “To establish a prima facie case of
discrimination under the ADA, a plaintiff must show: (1) [she] is disabled; (2)
[she] is a qualified individual; and (3) [she] was subjected to unlawful
discrimination because of her disability. Holly v. Clairson Indus., LLC, 492 F.3d
1247, 1255–56 (11th Cir. 2007). A plaintiff can show she is disabled by proving
she has “a physical or mental impairment that substantially limits one or more [of
her] major life activities.” 42 U.S.C. § 12102(1). In order to determine if Hudson
is disabled, this Court applies a three-step approach: (1) “we consider whether [the
alleged disability] was a physical impairment”; 3 (2) “we identify the life activity
3
A physical impairment is “[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body systems, such as neurological,
musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and
endocrine.” 29 C.F.R. § 1630.2(h).
6
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upon which [the plaintiff] relies . . . and determine whether it constitutes a major
life activity”; 4 and (3) “we ask whether the impairment substantially limited the
major life activity.” Bragdon v. Abbott, 524 U.S. 624, 631 (1998). See also
Rossbach v. City of Miami, 371 F.3d 1354, 1357 (11th Cir. 2004).
IV. WHETHER HUDSON’S BACK INJURY AND ASTHMA ARE
DISABILITIES UNDER THE ADA
We consider Hudson’s back injury and asthma claims in turn and find that,
as to both claims, Hudson failed to prove that she was disabled. Hilburn, 181 F.3d
at 1226.5
a. Back Injury
Regarding her back injury, we first consider whether Hudson identified a
physical impairment. Bragdon, 524 U.S. at 631. While Dr. Oliver recommended
work restrictions, he provided no medical diagnosis of back pain or its cause. More
telling is Dr. Inhulsen’s superseding examination of Hudson, which determined that
her back was “normal” with a “full range of motion.” Dr. Inhulsen, at Hudson’s
4
“Major life activities include, but are not limited to: [c]aring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting,
bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,
interacting with others, and working.” 29 C.F.R. § 1630.2(i)(1)(i).
5
The ADA also imposes upon employers an affirmative duty to provide reasonable
accommodations for known disabilities, unless doing so would result in undue hardship on the
operation of the business. 42 U.S.C. § 12112(b)(5)(A). Hudson does not challenge, or appeal,
the district court’s conclusions that she has no past record of a disabling impairment, nor did
Tyson regard her as having such an impairment. Additionally, Hudson does not challenge the
district court’s dismissal of her “constructive discharge” claim. Accordingly, any issues in these
respects are abandoned. Wilkerson, 270 F.3d at 1322.
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request, removed Dr. Oliver’s work restrictions and returned Hudson to work with
no back injury-related restrictions in place.
Hudson’s only evidence lies in her own subjective complaints of back pain
and related limitations. Nevertheless, Hudson did testify in her deposition to a few
ways in which her back limited her. Taking that testimony, and her subjective
complaints of pain, in a light most favorable to her, we acknowledge that she may
have demonstrated the existence of a physical impairment by testifying to a
“physiological disorder or condition . . . affecting [her] . . . musculoskeletal” system.
29 C.F.R. § 1630.2(h).
“A physical impairment, standing alone, however, is not necessarily a
disability as contemplated by the ADA.” Gordon v. E.L. Hamm & Assocs., Inc., 100
F.3d 907, 911 (11th Cir. 1996). We thus turn to the other Bragdon considerations
to determine whether Hudson has identified a major life activity and “whether the
impairment substantially limited the major life activity.” Bragdon, 524 U.S. at 631.
8
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Here, the major life activity identified by Hudson is working.6 Working is a
major life activity, 7 so we must consider whether Hudson’s back injury substantially
limited her from working. A plaintiff claiming that she is substantially limited in the
major life activity of working must establish that her condition significantly restricts
her ability to perform either a class of jobs or a broad range of jobs in various classes
as compared to the average person having comparable training, skills, and abilities.
Rossbach, 371 F.3d at 1359. An impairment does not substantially limit the ability
to work merely because it prevents a person from performing either a particular
specialized job or a narrow range of jobs. Id. When making the “substantially
limits” determination, we consider the manner in which the individual is limited in
the activity as compared to the general population, and may consider the difficulty,
effort, or time required to perform a major life activity as well as the length of time
for which the individual can perform the activity and the pain experienced. Mullins
v. Crowell, 228 F.3d 1305, 1314 (11th Cir. 2000).
6
The district court also considered Hudson’s allegations that her back injury substantially
limits her ability to sleep, bend, play with her son, and run, and found that “from the evidence, a
reasonable jury could not find that Hudson’s back pain substantially limits her in these activities
in comparison to the abilities of an average person. Hudson does not challenge the district
court’s decision on these grounds and, because we affirm on “major life activity of working”
grounds, Rossbach, 371 F.3d at 1359, we need not consider these allegations. Evans v. Georgia
Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir.) (“[W]e may affirm on any ground supported by the
record, regardless of whether that ground was relied on or considered below.”).
7
“[M]ajor life activities include, but are not limited to . . . working.” 42 U.S.C.A. §
12102(2).
9
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Here, the record demonstrates that, even if Hudson’s back pain is considered
an impairment, it does not substantially limit her ability to work. Hudson has held
a variety of jobs since she was first injured in 2010 and returned to a job as a
certified nursing assistant after she left employment with Tyson. Likewise, Hudson
testified in her deposition that normal day-to-day bending did not typically bother
her, and she presented no evidence of any difficulty walking. See Rossbach, 371
F.3d at 1357; Mullins, 228 F.3d at 1314. Tellingly, Hudson also returned to her
work at Tyson with no restrictions after Dr. Inhulsen concluded that her back was
“normal” with a “full range of motion.” Finally, the record suggests only that
Hudson was unable to work at Tyson due to her inability to stand on concrete for
long periods of time without moving around. However, this does not prove that her
“condition significantly restricts her ability to perform either a class of jobs or a
broad range of jobs in various classes as compared to the average person having
comparable training, skills, and abilities.” Rossbach, 371 F.3d at 1359. Hudson
cannot claim that she was substantially limited in the major life area of working.
Overall, Hudson has failed to prove that her back injury is a disability under
the ADA. Hilburn, 181 F.3d at 1226.
b. Asthma
Likewise, Hudson’s asthma claim fails for the same reasons that her back
injury claim fails. The only evidence supporting this claim is Hudson’s own
10
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testimony that the ammonia at the Tyson plant aggravated her asthma. But, again,
Hudson failed to specify any major life activity that her asthma affects. 8 Bragdon,
524 U.S. at 631. Nor has she provided any evidence that her asthma “substantially
limited” a major life activity. Id. Thus, Hudson has failed to prove that her asthma
qualifies as a disability under the ADA.
V. REASONABLE ACCOMMODATIONS
Discrimination under the ADA also includes the failure to make a reasonable
accommodation to the known physical or mental limitations of the individual. 42
U.S.C. § 12112(b)(5)(A). An employer’s failure to provide reasonable
accommodation to a disabled individual is itself discrimination, and the plaintiff
does not bear the additional burden of showing that the employer intentionally
acted in a discriminatory manner toward its disabled employees. Holly, 492 F.3d
at 1262.
The plaintiff bears the burden both to identify an accommodation and to
show that it is reasonable. Willis v. Conopco, Inc., 108 F.3d 282, 284–86 (11th
Cir. 1997). “The term ‘reasonable accommodation’ may include . . . acquisition or
modification of equipment or devices . . . and other similar accommodations for
individuals with disabilities.” 42 U.S.C. § 12111(9)(B).
8
Hudson may not now claim that her asthma substantially limited her ability to breathe,
as she never raised the claim before the district court.
11
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a. Back Injury
As a threshold matter, Hudson’s failure to identify any work restrictions on
the health assessment she completed after receiving a work offer from Tyson is
significant. See, e.g., U.S. Equal Emp. Opportunity Comm’n, EEOC Enforcement
Guidance on Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act (Oct. 17, 2002) (“If the individual with a disability
states that s/he does not need a reasonable accommodation, the employer will have
fulfilled its obligation.”). While she identified prior back issues, she did not identify
them as creating the need for a work restriction, so Tyson was unaware that a
reasonable accommodation would be required. Hudson was nevertheless allowed to
use the mats and stands available throughout the facility. Thus, when Hudson first
requested that a specific mat and stand be assigned to her and Tyson refused, that
refusal was reasonable given that Hudson did not have a known disability and had
not identified a work restriction that required an assigned mat and stand. 9
After meeting with Drs. Oliver and Inhulsen, Hudson again requested an
assigned mat and stand, which Tyson again refused because there were not enough
for every employee. This refusal was reasonable because, although Dr. Oliver
identified work restrictions, those restrictions were removed by Dr. Inhulsen. And,
9
It was also generally unnecessary, given that Hudson testified she was only unable to
locate a mat and stand for part of one shift—a situation that occurred prior to her accommodation
request.
12
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while Dr. Inhulsen recommended the use of a mat and stand, his evaluation did not
conclude that Hudson could not work without a mat or stand.10 It is well-settled
that, where an employee has requested an accommodation, the employer “is not
required to accommodate an employee in any manner in which that employee
desires.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285
(11th Cir. 1997). The employer is only required to offer reasonable
accommodations based on the circumstances. Id.
Moreover, Tyson still allowed her to use a mat and stand, which were
readily available throughout the facility. The only “refusal” on Tyson’s part was a
refusal to guarantee Hudson a specific mat and stand. Under the circumstances,
this refusal was reasonable, as Hudson’s doctor had returned her to work with no
restrictions and there were not enough mats and stands to assign one to Hudson.
See Gaston, 167 F.3d at 1363–64 (affirming summary judgment in favor of
employer because the record indicated that the plaintiff did not refuse a reasonable
request for accommodation). Thus, even if we considered Hudson’s back injury to
be a disability, her claim would still fail because the evidence shows that Tyson did
not fail to provide reasonable accommodation for Hudson’s back injury.
10
Hudson’s argument that Tyson unreasonably refused to restructure her job or work
schedule or reassign her to a vacant position fails because it was not raised in the district court.
See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This
Court will not consider issues raised for the first time on appeal that were not raised in the
district court below.”). In any event, Hudson has failed to show that she requested this
accommodation. Gaston, 167 F.3d at 1363–64; Access Now, Inc., 385 F.3d at 1331.
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b. Asthma
The duty to provide a reasonable accommodation is not triggered under the
ADA unless a specific demand for an accommodation has been made by the
employee. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363–64
(11th Cir. 1999). “Only after the employee has satisfied this burden and the
employer fails to provide that accommodation can the employee prevail on a claim
that her employer has discriminated against her.” Id. at 1364. Under Stewart, an
employer is not liable where it did “not obstruct an informal interactive process;
ma[de] “reasonable efforts to communicate with the employee and to provide
accommodations based on the information it possesse[d]; and where the
employee’s actions caused the breakdown in the interactive process.” 117 F.3d at
1287 (emphasis added).
As for her asthma claim, we cannot say that Hudson made a specific
accommodation request for her asthma. Hudson only asked her line leader, on her
last day on the job, if she could take a break to use an inhaler. The request was
denied for only a short period of time, and she did not pursue the matter any further
once the line leader denied her request. Gaston, 167 F.3d at 1363-64. Hudson’s
request was just “the first step in an informal, interactive process between the
individual and the employer.” U.S. Equal Emp. Opportunity Comm’n, EEOC
Enforcement Guidance on Reasonable Accommodation and Undue Hardship
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Under the Americans with Disabilities Act (Oct. 17, 2002).11 After Hudson
requested a break to use her inhaler, she completed that day’s work, but never
returned to work at Tyson. Even if we determined that this one request to a line
leader was a sufficient request for an accommodation under the ADA, Hudson
caused a breakdown in the interactive process by abruptly quitting the next day—
before Tyson had a chance to adequately respond.
Thus, even if we considered Hudson’s asthma to be an ADA disability, her
asthma ADA claim fails because she never identified an accommodation or an
unreasonable failure to accommodate on the part of Tyson.
Lastly, although Hudson views her situation as a constructive discharge and
argues that Tyson forced her to leave, it is undisputed that Hudson quit after one
inhaler request to her line supervisor. Hudson deprived Tyson of the opportunity
to engage in the interactive accommodations process.12 The evidence does not
support Hudson’s allegations that Tyson denied her request and thereby
constructively discharged her employment. Hudson’s departure unilaterally
11
“The employer and the individual with a disability should engage in an informal
process to clarify what the individual needs and identify the appropriate reasonable
accommodation. The employer may ask the individual relevant questions that will enable it to
make an informed decision about the request. This includes asking what type of reasonable
accommodation is needed. The exact nature of the dialogue will vary.” U.S. Equal Emp.
Opportunity Comm’n, EEOC Enforcement Guidance on Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act (Oct. 17, 2002). Under this Court’s
precedent, “[l]iability simply cannot arise under the ADA when . . . the employee’s actions cause
a breakdown in the interactive process.” Stewart, 117 F.3d at 1287.
12
That process may have required her to provide medical evidence of her asthma so
Tyson could determine if her medical condition met the ADA definition of “disability.”
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terminated any attempts at an interactive ADA-accommodations process with
Tyson. Based on the facts provided, we cannot conclude that Hudson was
constructively discharged.
VI. CONCLUSION
In sum, Hudson has failed to demonstrate that she has a disability under the
ADA because neither her alleged back injury nor her asthma meets the
requirements of an ADA disability. Furthermore, Hudson has not provided
evidence that Tyson unreasonably refused to accommodate either of her alleged
disabilities. The district court correctly granted summary judgment in this case.
Accordingly, we affirm.
AFFIRMED.
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