[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 3, 2006
No. 06-12024 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-02452-CV-T-26-TGW
MATTHEW T. BARNHART,
Plaintiff-Appellant,
versus
WAL-MART STORES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 3, 2006)
Before BLACK, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Matthew Barnhart appeals the summary judgment against his complaint of
discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12117(a).
Barnhart, who is unable to hear without the use of a hearing aid, filed a complaint
against his employer, Wal-Mart Stores, Inc., and alleged that Wal-Mart had
discriminated against him on the basis of his disability when Wal-Mart refused to
transfer Barnhart to the position of Loss Prevention Associate. Because the district
court correctly concluded that Barnhart cannot perform an essential function of the
Loss Prevention Associate position and that he did not suffer an adverse
employment action, we affirm.
We review a grant of summary judgment de novo. Merritt v. Dillard Paper
Co., 120 F.3d 1181, 1184 (11th Cir. 1997). Summary judgment is appropriate if
the “pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c). We may affirm the district court on any ground that
appears in the record. Jaffke v. Dunham, 352 U.S. 380, 381, 77 S. Ct. 307, 308
(1957).
The district court erroneously considered Barnhart’s claim under the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S. Ct. 1817, 1824 (1973), but that framework typically applies to claims under
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Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Barnhart
brought his complaint under the ADA. Despite its error, the district court, in its
use of the McDonnell Douglas framework, still properly considered elements of
the framework used for resolving ADA claims.
“[T]o establish a prima facie case of employment discrimination under the
ADA, a plaintiff must demonstrate ‘that (1) he has a disability, (2) he is a
‘qualified individual,’ which is to say, able to perform the essential functions of the
employment position that he holds or seeks with or without reasonable
accommodation, and (3) the defendant unlawfully discriminated against him
because of the disability.’” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220,
1226 (11th Cir. 2005) (quoting Reed v. The Heil Co., 206 F.3d 1055, 1061 (11th
Cir.2000)). “If the individual is unable to perform an essential function of his ···
job, even with an accommodation, he is, by definition, not a ‘qualified individual’
and, therefore, not covered under the ADA.” Id. at 1229 (internal quotation mark
omitted). To establish unlawful discrimination based on the disability, an
employee must present evidence of an adverse employment action. Doe v. Dekalb
County School Dist., 145 F.3d 1441, 1445 (11th Cir. 1998).
Wal-Mart does not dispute that Barnhart is an individual with a disability, in
that he is permanently substantially limited in his ability to hear as compared to
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members of the general population. Wal-Mart argues that, because of his
disability, Barnhart is unable to perform an essential function of the Loss
Prevention Association position: to hear and communicate instantaneously with
other Loss Prevention Associates throughout the store. To perform this function,
Loss Prevention Associates use walkie-talkies and an intercom system. Barnhart
argues that the ability to hear is not essential because he can communicate
instantaneously with the use of a T-Mobile Sidekick, a two-way pager.
An essential function of a position is a fundamental duty of the
“employment position the individual with a disability holds or desires,” and “does
not include the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1).
Evidence of whether a particular function is essential can include the employer’s
judgment, the written job descriptions, and the consequences of not requiring the
individual to perform the function. Id. A reasonable accommodation includes
“[m]odifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed,
that enable a qualified individual with a disability to perform the essential
functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii).
We agree with the district court that Barnhart’s claim fails because he is
unable to perform the essential functions of the employment position that he seeks.
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The primary purpose of the Loss Prevention Associate is to identify and apprehend
shoplifters. To apprehend a shoplifter, Wal-Mart requires an associate to maintain
constant and consistent visual contact with the suspected shoplifter to observe the
shoplifter through the stages of removing an item from the shelf, concealing the
item, and leaving the store with the item without paying. The Loss Prevention
Associate must be able to communicate with other Wal-Mart personnel while
performing these observations. The use of walkie-talkies and the intercom system
allows instantaneous communication between associates, management, and law
enforcement. Because of his hearing impairment, Barnhart cannot perform this
function of the Loss Prevention Association position.
Barnhart argues that instantaneous communication is only necessary for
emergencies and that he can perform the function of instantaneous communication
with the reasonable accommodation of the use of a Sidekick. This argument fails.
First, the evidence does not support the conclusion that instantaneous
communication is necessary only for emergencies. Second, although a Sidekick
would allow communication between an associate and other associates or
management, the use of the Sidekick would require the Loss Prevention Associate
to break his constant observation of the suspect. To send and receive messages on
the Sidekick, an individual must divert his attention to the screen of the Sidekick to
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type or read a message. Because it would not permit Barnhart to perform an
essential function of the position, the Sidekick is not a reasonable accommodation.
The district court also correctly concluded that the denial of a lateral transfer
to the Loss Prevention Associate position was not an adverse employment action.
Whether an employment action is adverse is determined based on an objective
standard. Dekalb County, 145 F.3d at 1448-49. A lateral transfer that does not
result in “lesser pay, responsibilities, or prestige” is not adverse. Id. Likewise, the
refusal to give an employee such a transfer cannot be an adverse employment
action.
Because Barnhart is not a qualified individual under the ADA and because
he has not suffered an adverse employment action, the summary judgment against
Barnhart’s complaint is
AFFIRMED.
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