[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________ FILED
U.S. COURT OF APPEALS
No. 04-16695 ELEVENTH CIRCUIT
MARCH 10, 2006
_____________________________
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00003-CV-4
REGINA BISHOP,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF FAMILY AND
CHILDREN SERVICES,
Floyd County Office,
Defendant-Appellee.
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(March 10, 2006)
Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.
PER CURIAM:
On 10 October 2001, Plaintiff Regina Bishop was terminated from her job
as an economic support supervisor for the Floyd County, Georgia Department of
Family and Children Services (DFCS).1 Plaintiff claims she was terminated
because of her bipolar disorder in violation of the Americans with Disabilities Act
of 1990 (ADA) and the Rehabilitation Act of 1973. The district court concluded
that Plaintiff failed to present a prima facie case of discrimination and granted
summary judgment to the defendant, the Georgia Department of Human
Resources. We now affirm the district court in part, reverse in part, and remand
for further proceedings.
I. BACKGROUND
Plaintiff started work for the Defendant Georgia Department of Human
Resources (DHR) in 1979. In 1985, Plaintiff became an economic support
1
Although Plaintiff performed her job functions for Floyd County DFCS, her actual employer --
and the defendant in this case -- is the Georgia Department of Human Resources.
2
supervisor for Floyd County DFCS, a division of DHR. Her job responsibilities
required her to train new staff in DFCS programs and computer systems.
In 1987, Plaintiff was diagnosed with rapid-cycling bipolar disorder, which
causes periodic manic and depressive episodes which can include increased
irritability, easy distraction, and verbal hostility. During her manic episodes,
Plaintiff admits that she often makes inappropriate statements, has inappropriate
interactions with other people, and exercises poor judgment. Plaintiff takes
medication to control her bipolar disorder and participates in periodic counseling
sessions.
In February and March 2001, Plaintiff received two letters of concern
detailing inappropriate acts she had taken during her employment.2 Plaintiff
attributed her acts to her bipolar disorder, and she requested closer communication
with and more direct observation from her supervisor, Diane Ray, as a means of
curbing her inappropriate behavior.
In May 2001, plaintiff violated DFCS policy when she separately assisted
her son and her boyfriend to obtain medical benefits and food stamps. An
unwritten DFCS policy requires an employee to alert a supervisor when a family
2
In the first incident, Plaintiff allegedly called a coworker a “bitch.” In the second, Plaintiff
allegedly used her status with Floyd County DFCS to assist a client in another DFCS office.
3
member was receiving benefits through the employee’s office. The supervisor is
then supposed to handle the claim. Plaintiff did not alert Ray that Plaintiff’s son
and boyfriend had applied for benefits.
The Floyd County DFCS director, Kathy Floyd, initiated an investigation
into Plaintiff’s activities. Although Plaintiff claimed she was unaware of this
policy, some evidence indicates that Plaintiff attended a meeting during which the
policy was discussed. The investigation concluded that Plaintiff violated DFCS
policy.3 Plaintiff was fired on 15 October 2001 based on her work history and the
results of the investigation. Before she was terminated, Plaintiff applied for
disability retirement benefits beginning in November 2001.
Plaintiff filed suit against DHR after receiving a Notice of Right to Sue
from the Equal Employment Opportunity Commission. In her suit, Plaintiff
alleged that her policy violations were directly caused by her bipolar disorder and
3
The Office of Investigative Services report concluded that:
The evidence supports the conclusion of negligence, inefficiency and misconduct by
Regina Bishop. Ms. Bishop was inappropriately involved in the application process
of her son and live-in boyfriend. Her involvement compromised program integrity
and internal controls. She violated office procedures/practices, food stamp/county
clinic policy and DHR standards of conduct policy. She failed to report the cases to
her supervisor and recruited subordinate employees/friends to assist her in processing
the cases.
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that DHR violated the ADA and the Rehabilitation Act when it terminated her
without accommodating her or taking her condition into account.
The district court dismissed Plaintiff’s claims under the ADA because the
complaint failed to name a state official as a defendant. The court granted
summary judgment for DHR on Plaintiff’s remaining claims because, the court
concluded, “exercising good judgment” was an essential job function that Plaintiff
could not perform with or without reasonable accommodation.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment. Burton
v. Tampa Hous. Auth., 271 F.3d 1274, 1276-77 (11th Cir. 2001). Summary
judgment is appropriate only if there is no genuine issue of material fact and DHR,
as the moving party, is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;
Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553 (1986). We view
the evidence and all factual inferences therefrom in the light most favorable to
Plaintiff, as the non-moving party, and all reasonable doubts about the facts are
resolved in Plaintiff’s favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187
(11th Cir. 1999).
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III. DISCUSSION
Plaintiff raises claims under the Rehabilitation Act (the “Act”) and the
ADA. For reasons discussed in more detail below, Plaintiff’s ADA claims are
barred by her failure to name a state official as a defendant. Plaintiff’s
Rehabilitation Act claims, however, are procedurally sound. Like the ADA, the
Act “prohibits federal agencies from discriminating in employment against
otherwise qualified individuals with a disability.” Sutton v. Lader, 185 F.3d 1203,
1207 (11th Cir. 1999).4 To establish a prima facie case of discrimination under the
Act, Plaintiff must show that she is a qualified person with a disability who was
subjected to unlawful discrimination as the result of her disability. Id.
To be a “qualified” person Plaintiff must be able to perform the essential
functions of her job, with or without reasonable accommodation. Earl v. Mervyns,
Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Plaintiff contends that her level of
judgment did not impede her ability to perform the essential functions of her job.
Plaintiff further asserts that she established a prima facie case of discrimination
because she could have performed the essential functions of her job with
4
The standard for determining liability under the Act is the same as under the ADA. Sutton, 185
F.3d at 1207 n.5.
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reasonable accommodations, and DHR refused to provide the accommodations she
requested.
We conclude that issues of material fact exist to block DHR’s motion for
summary judgment.
A. Plaintiff’s essential job functions
The district court concluded that “exercising good judgment” was an
essential function of Plaintiff’s job. Essential functions are the “fundamental job
duties of a position that an individual with a disability is actually required to
perform.” Earl, 207 F.3d at 1365 (citing 29 C.F.R. § 1630.2(n)(2)(i)). The factors
to consider when deciding whether a particular task is an essential function
include these things: (1) the amount of time spent performing the function; (2) the
work experience of past and current holders of the position; and (3) job
requirements as described in a written job description. 42 U.S.C. § 12111(8); 29
C.F.R. § 1630.2(n)(3).
Plaintiff’s job duties required her to spend 95 percent of her time training
new employees. But DHR has furnished no written job description from which we
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can glean Plaintiff’s essential job functions. Nor has DHR provided evidence on
the essential functions of past or current holders of Plaintiff’s position.
Exercising some degree of good judgment is arguably a function of every
occupation. See, e.g., Williams v. Motorola, Inc., 303 F.3d 1284, 1291 (11th Cir.
2002) (deeming as essential functions similarly broad qualities such as “the ability
to handle reasonably necessary stress and work reasonably well with others”). But
the required degree of acuity and consistency of judgment varies between different
jobs. The question at issue here is the degree of acuity and consistency of
judgment necessary to perform Plaintiff’s job. See Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1258 (11th Cir. 2001) (concluding that essential job functions may
only be determined through factual inquiry conducted on case-by-case basis).
The evidence includes statements from Plaintiff’s two supervisors who
testified that Plaintiff was a capable worker who, in reality, exercised the level of
good judgment necessary to perform her job adequately for 23 years in DHR’s
employ. Ray, her immediate supervisor, stated that Plaintiff always met or
exceeded expectations in her regular performance reviews and that Ray would
have readily accepted Plaintiff back as an employee even with her disability. And,
after the two incidents in early 2001 when Plaintiff failed to exercise good
judgment, DHR merely issued letters of concern detailing her behavior.
8
Construing this evidence in the light most favorable to Plaintiff, a
reasonable fact finder might infer from this record that DHR did not really
consider “exercising good judgment” to be an essential function of Plaintiff’s job.
At the very least, a reasonable fact finder might find that Plaintiff exhibited the
degree of acuity and consistency of judgment necessary to be a qualified person
for the specific job in this case. We accordingly conclude that sufficient questions
of fact exist such that summary judgment should not be granted.
B. Reasonable accommodation
The district court determined that no reasonable accommodation would
allow Plaintiff to exercise good judgment in her job. Plaintiff’s requested
accommodation merits some discussion.
Plaintiff requested that Ray, her supervisor, meet more frequently with
Plaintiff so that Ray could bring inappropriate acts to Plaintiff’s attention.
Plaintiff contends that more frequent meetings with Ray would have provided a
reasonable means of accommodating her bipolar disorder. To support her
contention, Plaintiff presented an affidavit from her psychologist stating that
closer supervision could have minimized the incidents of Plaintiff’s poor
9
judgment.5 Some evidence indicates that prior, similar meetings with Plaintiff’s
former director had minimized the effects of Plaintiff’s mood swings.
An employer must provide reasonable accommodations for employees with
known disabilities unless the accommodations would cause undue hardship to the
employer. Earl, 207 F.3d at 1365. Accommodations are reasonable, and thus
required under the Act, only if they allow the employee to perform her essential
job functions. Id. Plaintiff holds the burden of identifying a reasonable
accommodation that would allow her to perform the essential functions of her job.
Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.
1997).
Taking the evidence in the light most favorable to Plaintiff, we cannot
conclude as a matter of law that Plaintiff’s violations of DHR policy were
sufficient to render her unable to perform the essential functions of her job with
some reasonable accommodation.
5
Plaintiff’s psychologist, Dr. Robert Connell, presented the value of more frequent meetings
between Plaintiff and her supervisor as “precisely the type of accommodation that [Plaintiff] needed
at the time.” Dr. Connell further testified that “[b]ecause mania frequently interferes with your
perception of yourself, the only way you can control it is to self adjust based on the cues provided
to you by those around you.” With this accommodation, Dr. Connell testified, Plaintiff would have
been able to continue working until her retirement date.
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C. Plaintiff’s ADA claims
Plaintiff sought equitable adjustment of her retirement date so that she could
receive retirement benefits. She raised this claim under the ADA. The district
court dismissed the claim because Plaintiff failed to name in her complaint a state
official acting in an official capacity. Plaintiff now asks us to remand her ADA
claim to the district court so that she may amend her complaint.
Plaintiff had ample opportunity to amend her complaint to include a state
official as a defendant.6 She did not seek such a corrective amendment in district
court. We follow the rule that “[a] district court is not required to grant a plaintiff
leave to amend [her] complaint sua sponte when the plaintiff, who is represented
by counsel, never filed a motion to amend nor requested leave to amend before the
district court.” Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541,
542 (11th Cir. 2002)(en banc).
Plaintiff raises this argument for the first time on appeal. We have
repeatedly held that “an issue not raised in the district court and raised for the first
time in an appeal will not be considered by this court.” Access Now, Inc. v.
6
Plaintiff once amended her complaint to change the defendant from Georgia DFCS to the current
defendant, Georgia DHR. Plaintiff never named a state official as a defendant.
11
Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). We, therefore,
affirm the district court’s dismissal of Plaintiff’s ADA claim.
IV. CONCLUSION
The district court properly dismissed Plaintiff’s claim under the ADA. But
DHR has not defined “exercising good judgment” sufficiently for the pertinent job
or shown that Plaintiff could not meet the degree and consistency of judgment
required to perform her essential job functions with reasonable accommodation.
Summary judgment, therefore, is unwarranted on Plaintiff’s claims under the
Rehabilitation Act, and we remand for further proceedings consistent with this
opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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