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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10746
Non-Argument Calendar
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D.C. Docket No. 1:18-cv-00148-JRH-BKE
CASANDRA WILLIAMS-EVANS,
Plaintiff-Appellant,
versus
ADVANCE AUTO PARTS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Georgia
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(January 7, 2021)
Before JORDAN, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Casandra Williams-Evans appeals the district court’s order granting
Advance Auto Parts’ motion for summary judgment on her ADA claims. She
thinks that Advance violated the ADA by not providing her with a reasonable
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accommodation for her disability and by retaliating against her for engaging in
protected expression. But because Williams-Evans failed to reconcile her current
position with statements to the Social Security Administration that she was
disabled and unable to work, she is estopped from arguing that she is a qualified
individual under the ADA—meaning that her failure-to-accommodate claim fails.
And because she did not establish that she suffered a materially adverse
employment action, her retaliation claim fails too. We therefore affirm.
I.
Williams-Evans, a salesperson at an Advance store in Augusta, Georgia,
injured her lower back at work when picking up a car battery. That injury, which
occurred on June 19, 2014, prompted a three week leave of absence. Though she
returned to work the next month, she continued to suffer from substantial back
pain.
Advance provided her with a metal folding chair to sit on while she worked
to help alleviate her pain, but she thinks that wasn’t enough. According to
Williams-Evans, the chair was so low that she had to repeatedly sit and stand
throughout the day to perform her job duties—aggravating her injuries further.
She requested that the chair be replaced with a stool with back support, but to no
avail; Advance denied her request.
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Throughout the four months following her return, Williams-Evans began
working at Advance less and less. She often showed up late, left work early, or
missed entire shifts because of her back pain. In October and November of 2014,
she worked only two shifts at Advance for a total of six hours.
Advance did not discipline her for these absences. Instead, it allowed her to
work a flexible schedule and used other employees to cover for her when she was
absent. When she did show up to work, Advance excused some of her job duties
to help manage her pain.
Even so, Williams-Evans’s last shift at Advance was in November of 2014.
She says she stopped working because her physician determined she was unable to
work—at her sales job or any other. Though Williams-Evans has not worked a
shift at Advance in years, Advance has not terminated her employment and has not
required her to go on a leave of absence.
Prior to initiating this lawsuit, Williams-Evans filed a charge with the Equal
Employment Opportunity Commission asserting that Advance violated the ADA
by discriminating against her on the basis of disability and retaliating against her.
The EEOC issued her a right-to-sue letter on August 24, 2018, and she filed an
action in district court the next month.
In her suit, Williams-Evans alleges that Advance violated the ADA in two
ways. She first claims that Advance discriminated against her on the basis of
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disability by failing to provide her with a reasonable accommodation and by
forcing her to take workers’ compensation leave. She next claims that Advance
retaliated against her for engaging in protected conduct by taking a whole host of
adverse employment actions, such as increasing her hours and threatening her with
termination.
The district court granted Advance’s motion for summary judgment on both
claims. It found that Williams-Evans was not a “qualified individual” under the
ADA to make out her discrimination claim and that she failed to show any
“adverse employment action” by Advance to make out her retaliation claim. This
appeal followed.
II.
We review the district court’s application of judicial estoppel for abuse of
discretion. Taylor v. Food World, Inc., 133 F.3d 1419, 1422 (11th Cir. 1998). We
review a district court’s grant of summary judgment de novo. Id. Summary
judgment is appropriate 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).
III.
The ADA prohibits covered private employers from discriminating against
qualified individuals on the basis of disability. 42 U.S.C. § 12112(a). To show she
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is a “qualified individual,” a plaintiff must show she is “an individual who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
Because the ADA protects only individuals still able to perform the essential
functions of their job, a plaintiff who is totally disabled and unable to work cannot
sue for discrimination under the ADA. Slomcenski v. Citibank, N.A., 432 F.3d
1271, 1280 (11th Cir. 2005).
A plaintiff may be estopped from asserting that she is a qualified individual
under the ADA if she already applied for and received disability benefits. Taylor,
133 F.3d at 1423. Whether a plaintiff is estopped depends on the specific
statements she made to the Social Security Administration. Id. If she made a
previous sworn statement asserting that she is disabled and unable to work, the
“court should require an explanation of any apparent inconsistency with the
necessary elements of an ADA claim” before allowing her claim to proceed.
Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 807 (1999).
The first two elements of Williams-Evans’s ADA claim are not at issue; the
parties only dispute whether she is a “qualified individual” under the ADA. The
district court, noting that her submissions and testimony before the Social Security
Administration conflicted with her position in her ADA claim, found that she was
judicially estopped from claiming that she was a qualified individual; Williams-
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Evans thinks this was error. The task for us is deciding whether the district court
abused its discretion in applying the doctrine of judicial estoppel here.
Williams-Evans asserts in her ADA claim that she was able to perform the
essential functions of her job with Advance, but her position before the Social
Security Administration tells a different story. In September of 2012, she
submitted a sworn application for Social Security disability benefits stating that she
had been “unable to work” since June 22, 2012. Though she started working for
Advance in 2014, she never updated or revised this application to reflect that she
was no longer disabled. In fact, on January 4, 2016, she testified at a hearing
before a Social Security Administration Administrative Law Judge that she was
unable to lift more than five or six pounds, must lie down for 30 minutes every
hour, and could only stand or sit for 20 to 25 minutes. Based on this evidence, the
ALJ found that she had been disabled since October 1, 2012 and awarded her
disability benefits retroactive to that date.
These statements to the Social Security Administration are inconsistent with
her position in this case that she could perform essential functions of her job with
Advance. Her job required that she install car batteries, clean the store, and man
the cash register—all while “predominantly walking or standing.” Yet her position
before the Social Security Administration was that she was unable to sit or stand
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for more than 20 to 25 minutes, and that she must lie down for 30 minutes every
hour.
To survive a motion for summary judgment, Williams-Evans needed to
explain why her contentions before the Social Security Administration were
consistent with her ADA claim—but she failed to do so. Cleveland, 526 U.S. at
807. She did not explain how she could be disabled yet still able to perform the
essential functions of her sales position. And that means the district court did not
abuse its discretion in holding that she was estopped from asserting that she was a
qualified individual under the ADA.
Williams-Evans claims on appeal that her statements are in fact consistent,
but any argument she did not raise below or in her initial brief is waived. She first
says that because she only worked at Advance part-time, her claim to the Social
Security Administration that she was unable to work 40-hour weeks is still
consistent with being able to work for Advance for shorter workweeks. But she
did not make this argument in the district court. We are a court of review, not “a
court of first view,” and that means we will not consider arguments raised for the
first time on appeal. Callahan v. U.S. Dep’t of Health and Human Servs., 939 F.3d
1251, 1266 (11th Cir. 2019); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004).
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She also asserts—for the first time in her reply brief—that her testimony
before the Social Security Administration was referring to her medical condition
and injuries in 2016, not to her condition any time before. But we have repeatedly
refused to consider arguments raised for the first time in an appellant’s reply brief.
U.S. v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004).
In short, the district court did not abuse its discretion in finding that
Williams-Evans was judicially estopped from arguing that she was a qualified
individual under the ADA. And for that reason, summary judgment for Advance
on her ADA discrimination claim was warranted.
IV.
To establish a retaliation claim under the ADA, a plaintiff must show that:
1) she engaged in statutorily protected conduct; 2) she suffered an adverse
employment action; and 3) there was a causal relationship between the action and
her protected expression. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336
(11th Cir. 1999). We analyze ADA retaliation claims under the same framework
used for Title VII retaliation claims. Stewart v. Happy Herman’s Cheshire Bridge,
Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). A plaintiff must show that “a
reasonable employee would have found the challenged action materially adverse,”
which, in the Title VII retaliation context, means it well might have “dissuaded a
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reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
Williams-Evans alleges quite a few adverse employment actions by
Advance. But after considering each in turn, we agree with the district court that
none are sufficient to make out a claim for retaliation under the ADA.
First, Williams-Evans claims that Advance forced her to take workers’
compensation leave, thereby retaliating against her. But the parties do not dispute
that it was her personal physician—not Advance—who told her to take this leave.
In fact, Williams-Evans testified at her deposition that her physician told her she
was unable to continue working and no one at Advance required her to go on
leave. Though she seems to argue now that the physician was Advance’s agent,
she provides no factual or legal basis for that claim. The record does not show that
Advance forced Williams-Evans to take this leave—and instead shows that it was
her physician’s decision—meaning that Advance cannot be held liable for this
decision.
Second, she claims that by denying her a stool as a reasonable
accommodation, Advance retaliated against her. But this is merely an attempt to
repackage her discrimination claim—which we already rejected for reasons
described above—as a retaliation claim. Under the ADA, an allegation based on
the employer’s failure to fulfill affirmative duties prescribed by the ADA—such as
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the duty to accommodate disabilities—forms the basis of a discrimination claim.
See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 396 (2002) (“the ADA says that
‘discrimination’ includes an employer’s ‘not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified’” employee)
(quoting 42 U.S.C. § 12112(b)(5)(A)). In contrast, an allegation based on an
employer taking actions prohibited by the ADA forms the basis of a retaliation
claim. See 42 U.S.C. § 12203. Here, Williams-Evans’s claim is about what
Advance failed to do—not about what it did do—and that means it was a claim of
discrimination. She cannot recharacterize her claim as one of retaliation simply to
get a second bite at the apple.
Third, Williams-Evans thinks she was retaliated against because Advance
threatened her with termination. But a threat of termination, without more, is not a
“materially adverse” employment action. Burlington, 548 U.S. at 68. Nothing
suggests, nor does Williams-Evans argue, that at the time of the threat, Advance
took any action—such as termination or demotion—that would be so harmful as to
“dissuade a reasonable worker from making or supporting a charge” under the
ADA. Id. at 57.
Fourth, she points to the fact that Advance increased her scheduled hours of
work for one week by one hour. Of note, though its undisputed that she was
scheduled to work an additional hour in the week at issue, she was also scheduled
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to work fewer hours than usual for each of the subsequent weeks that month.
Further, the number of hours she actually worked that month decreased because
she was frequently absent or unable to complete a full shift. So once we consider
this one-hour increase in context, it’s clear that the change was not a “materially
adverse” action. Id.
Fifth, she claims that she was subjected to a hostile work environment in
retaliation for her activity. To establish a retaliatory hostile work environment,
Williams-Evans needed to show that the mistreatment she endured “might have
dissuaded a reasonable worker from making or supporting a charge” under the
ADA. Monaghan v. Worldpay US, Inc., 955 F.3d 855, 861 (11th Cir. 2020)
(quoting Burlington, 548 U.S. at 68). Williams-Evans points to two statements:
one by another employee after her injury saying that she was going to get fired and
one by her manager saying that she would be terminated if she did not show up for
work. But a reasonable person would not view those two statements, without
more, as constituting “material adversity.” Burlington, 548 U.S. at 68. Indeed,
text messages from her coworkers show that they were sympathetic to her plight
and encouraged her to recuperate before returning to work. And Williams-Evans
testified that no one at Advance made derogatory or offensive comments about
herself or others with disabilities. The two statements, especially in light of their
context, are not enough to show a retaliatory hostile work environment.
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Finally, she alleges three additional retaliatory actions, none of which were
properly raised in the district court. She claims on appeal that Advance retaliated
against her by reporting that she worked on days she was actually absent and by
ignoring a complaint she filed with the human resources department. But she did
not raise either argument in the court below in a way that would afford the district
court an opportunity to recognize and rule on it, so we will not consider these
arguments for the first time on appeal. Access Now, 385 F.3d at 1331. And even if
Advance ignored her human resources complaint, that shows only a failure to act,
not a material adverse action sufficient to make out a retaliation claim. See U.S.
Airways, 535 U.S. at 396.
She also claims that Advance retaliated against her by changing her schedule
without notice, causing her to lose pay. That argument was not raised until her
response brief at the summary-judgment stage, and it is improper for a plaintiff to
raise new claims through briefs opposing summary judgment. Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). We therefore decline to
consider any of these three arguments for the first time on appeal. Access Now,
385 F.3d at 1331.
Because Williams-Evans failed to allege that Advance took an adverse
employment action against her, her retaliation claim fails as a matter of law. For
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that reason, it was proper to grant Advance’s motion for summary judgment on her
claim.
* * *
In sum, the district court did not err in holding that Williams-Evans was
judicially estopped from claiming that she was a qualified individual under the
ADA. Because she failed to reconcile her statements before the Social Security
Administration with her position in this case, she could not make out a prima facie
case of discrimination. More, Williams-Evans failed to allege an adverse
employment action taken by Advance, meaning her retaliation claim fails as a
matter of law too. For those reasons, the judgment of the district court is
AFFIRMED.
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