Bob Nadler v. Francis J. Harvey

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12692 AUGUST 24, 2007
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 02-2289-CV-5-VEH

BOB NADLER,

Plaintiff-Appellant,

versus

FRANCIS J. HARVEY,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Alabama
_________________________

(August 24, 2007)

Before EDMONDSON, Chief Judge, HULL, Circuit Judge, and FORRESTER,*
District Judge.

*
Honorable J. Owen Forrester, Senior United States District Judge for the Northern
District of Georgia, sitting by designation.
FORRESTER, District Judge:

Appellant, Bob Nadler, appeals from the district court’s order granting

summary judgment in favor of Appellee, Francis Harvey, Secretary of the Army,

on his claims pursuant to the Rehabilitation Act of 1973 (“the Act”), 29 U.S.C.

§ 791, § 501, as amended; 29 U.S.C. §§ 791 and 794. Nadler alleges that his

supervisor, James Newell, (1) refused to accommodate his insomnia and

depression with a flexible work schedule, (2) refused to accommodate his back

injury by allowing him to work while standing, and (3) discriminated against him

by improperly handling his absences because of his disabilities.1 The district court

found that Nadler had not presented evidence sufficient to create a genuine issue

of a material fact as to whether his impairments “substantially limited a major life

activity” and rendered him disabled within the meaning of the Act. Further, the

district court concluded that even if Nadler had adequately proven his disability,

his claim should fail because he had not presented sufficient evidence under the

burden-shifting framework of McDonnell Douglas v. Green that the non-

discriminatory reasons for its actions asserted by the Defendant were pretextual.

1
Before the district court, Nadler also alleged that the Army retaliated against him for
engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964, as
amended; 42 U.S.C. §§ 2000e, et seq. The district court determined that Nadler had produced
no evidence to establish a prima facie case of retaliation. Nadler does not raise his retaliation
claim on appeal and we deem it waived. McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1263
(11th Cir. 2004).

2
 For the reasons set forth below, we affirm the district court’s grant of

summary judgment and hold that (1) sleep is a major life activity; (2) a plaintiff is

not substantially impaired in sleeping when he sleeps an average of five and a half

to six and a half hours per night and his sleep patterns do not differ significantly

from those experienced by the general population; and (3) the Title VII burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 793 (1973),

while appropriate for determining the existence of disability discrimination in

disparate treatment cases, is not necessary or useful in determining whether a

defendant has discriminated by failing to provide a reasonable accommodation.

I. Backgound

Bob Nadler is a civilian employee of the Department of the Army who

works as a GS-12 Operation Research Analyst at Redstone Arsenal in Huntsville,

Alabama. Between the spring of 1994 and the fall of 2002, Nadler worked under

the immediate supervision of James Newell, and Newell was responsible for

Nadler’s work and leave schedules. During this period Nadler was treated for

sleep disorder, depression, and back pain.

A. Nadler’s Impairments

Newell became aware of Nadler’s problems with insomnia soon after he

began supervising Nadler in 1994. Nadler was experiencing difficulty arriving at

3
work on time. He provided medical documentation from a sleep clinic, and

Newell placed him on a modified compressed work schedule. A psychologist who

treated Nadler from January 1999 to October 2003 testified that Nadler “had

suffered from insomnia for a number of years” and that his symptoms could not be

completely mitigated with medication. The psychologist responded affirmatively

when asked if Nadler’s condition was severe. Nadler’s psychiatrist wrote a letter

in 1999 stating that Nadler suffered from “disordered sleep resulting in extreme

fatigue and chronic sleep deprivation” and that his condition was “severe” and

“unremitting.”

Nadler himself testified he had been treated for insomnia and depression

continuously since 1988 and had attended six sleep clinics and seen numerous

sleep specialists. He testified that his sleep without medication was “very

fragmented and [was] only two to three hours per night,” and his sleep with

medication “[was] only four hours per night on a fragmented basis.” Sleep

studies, conducted in 1990 and 1995, indicated that Nadler slept an average of five

and a half to six and a half hours per night, as little four hours on one night, and as

long as seven and a half hours on other nights. Nadler’s sleep quality ranked

between fifty and eighty percent on a 1-100% scale of very poor to very good.

4
Three nocturnal polysomnograms indicated that Nadler slept for 4.9 hours, 2.1

hours, and 5.6 hours, respectively.

Nadler also provided Newell with documentation of depression in 1999.

Letters from Nadler’s psychologist, written in July 2001 and January of 2002,

recommended reassignment and indicated that Nadler was suffering from stress.

A January 2001 letter from Nadler’s treating psychiatrist stated that Nadler

suffered from “recurrent, and treatment-resistent major depression” resulting in

“disordered sleep.”

Nadler also claimed to have suffered from severe back pain while under

Newell’s supervision. Nadler testified that he had a back condition known as

grade II Spondylolisthesis, which had been confirmed by X-ray, CAT scan,

myelogram and MRI. He complained of chronic low back pain and sciatica

related to disc disease. A “Physical Activity Report” signed by Nadler’s physician

noted that he should avoid “prolonged sitting” for a four-week period. Nadler

presented further recommendations from medical care providers made in June and

September of 2000 and July of 2001 stating that he should “change posture as

needed,” “change positions or stand as needed,” and should be limited to

occasional sitting. In August of 2001, Nadler sustained an additional back injury

at work. His treating chiropractor estimated his recovery period to be eight to

5
twelve weeks. Nadler took time off from work and received worker’s

compensation. He returned to limited duty in February of 2002. A letter from

Nadler’s chiropractor in October of that year stated that Nadler should continue to

take short breaks from sitting in order to stand up and walk around.

B. Incidents of Discrimination

Nadler alleged that Newell discriminated against him on four occasions

between 1994 and 2002 when Newell: (1) requested that Nadler present medical

documentation before returning to work from leave in 1999; (2) terminated

Nadler’s modified compressed work schedule in 1999; (3) instructed Nadler that

he must work from his desk rather than standing up in 2000; and (4) designated

Nadler as away without leave during 2001.

In January of 1999 Nadler provided Newell with documentation indicating

that he was under a doctor’s care for extreme emotional distress, and Newell

approved sick leave. Newell informed Nadler that any employee on sick leave for

more than three days must receive written approval to return to work. An

employee could provide a release from a physician or from the occupational health

office at Redstone. When Newell returned to work on March 3, 1999, he did not

provide a release from any doctor or from the installation’s occupational health

office. Newell would not allow him to return to work until he got documentation

6
and placed him on annual leave without his permission, ensuring that Nadler did

not lose pay. Nadler could not obtain a release from his own physician because

his physician was unavailable. Nadler returned roughly a month later with

permission from occupational health, and he was restored to duty.

All employees in Nadler’s division had the option of choosing a compressed

work schedule. A compressed work schedule allows employees to work eight

nine-hour days and one eight-hour day rather than nine eight-hour days so that

they may have one day off during every two-week work period. Employees may

choose the hours they work each day as long as they are present at work during the

core hours between 8:00 a.m. and 3:00 p.m. All employees must leave the

building by 6:00 p.m. For example, an employee may choose to work 6:30 a.m. to

3:30 p.m. or 8:00 a.m. to 5:00 p.m. Newell authorized a modified compressed

work schedule for Nadler in 1995 in response to documentation of Nadler’s

sleeping disorder. Newell allowed Nadler to depart from core hours and work

from 8:15 a.m. to 6:00 p.m. with forty-five minutes for lunch on his nine-hour

days and 9:15 a.m. to 6:00 p.m. on his eight-hour day.

Newell testified that Nadler continued to experience attendance problems

and that he discussed these problems with Nadler on several occasions. On

May 19, 1999, Newell placed Nadler on a fixed work schedule that required

7
Nadler to work Monday through Friday from 9:15 a.m. to 6:00 p.m. with forty-five

minutes for lunch. Newell instituted the change because Nadler was not

consistently reporting in a timely manner for nine-hour work days. The new

schedule allowed Nadler to come in later to work and gave Nadler the option of

informing the time-keeper when he was late and coordinating with her to make up

the time. Newell was not allowed to work after 6:00 p.m. Newell testified that

Nadler was still not arriving at work on time and failed to coordinate with the

time-keeper. When Newell retired in 2002, the Army allowed Nadler to resume

his modified compressed work schedule. Nadler currently works a compressed

schedule with management allowances for a reasonable time to report.

In June of 2000, Newell noticed that Nadler had lifted his computer off of

his desk and propped it up on the top of a partition in order to work standing.

Newell, out of concern that the monitor would fall and injure another worker,

instructed Nadler to move the computer back to his desk and to work sitting.

Newell testified that he was unaware that Nadler was standing due to back pain.

When Nadler presented medical documentation, Newell secured his computer and

allowed him to work standing.

In June 2001 Newell charged Nadler with away-without-leave status for five

days. This sanction arose out of a dispute regarding Nadler’s time and attendance

8
during ten days in December 2000 and January 2001. Newell, while away on

holiday leave, asked a fellow supervisor to keep track of Nadler’s time. The

supervisor documented that Newell did not meet the minimum attendance

requirements for eight of the ten days. Newell requested an explanation and did

not receive one. Nadler presented evidence that he had sent e-mail messages from

his desk on three of the days, and Newell agreed to only charge him with away-

without-leave status for five of the eight days.

II. Discussion

The Rehabilitation Act prohibits federal agencies from discriminating

against any otherwise qualified individual with a disability solely by reason of his

or her disability. 29 U.S.C. § 794(a). A plaintiff may prove discrimination in two

ways, disparate treatment and a failure to make a reasonable accommodation.

There has been considerable confusion throughout this case as to what type of

discrimination Nadler has alleged.

Disparate treatment involves discriminatory animus or intent and occurs

when a disabled individual is treated differently than a non-disabled or less

disabled individual because of his disability. 42 U.S.C. § 12112(b).2 By contrast,

2
The Rehabilitation Act does not explicitly define discrimination, however, section
794(d) of the Act, added in 1992, adopts the definition of “discrimination” found within the
Americans with Disabilities Act or ADA, 42 U.S.C. §12112(b).

9
a failure to make reasonable accommodation claim requires no animus and occurs

when a covered entity fails to fulfill its affirmative duty to “make reasonable

accommodation to the known physical or mental limitations of an otherwise

qualified applicant or employee with a disability” without demonstrating that “the

accommodation would impose an undue hardship on the operation of the

business.” 42 U.S.C. § 12111(b)(5)(A). Thus, while disparate treatment claims

are concerned with policing employers’ actions based on invidious discriminatory

intent, “[t]he reasonable accommodation requirement is best understood as a

means by which barriers to the equal employment opportunity of an individual

with a disability are removed or alleviated.” 29 C.F.R. § 1630, app. (2003).

Determining the type of discrimination alleged by Nadler is not merely a matter of

nomenclature; rather, it affects the evidentiary framework in which the Plaintiff

must operate.

We allow plaintiffs to prove disparate treatment in disability cases “through

circumstantial evidence using the familiar burden-shifting analysis employed in

Title VII employment discrimination cases.” Wascura v. City of South Miami, 257

F.3d 1238, 1242 (11th Cir. 2001). This burden-shifting analysis, often referred to

as McDonnell Douglas burden-shifting, is a three-step process: (1) A plaintiff

establishes a prima facie case of disparate treatment; (2) a defendant articulates a

10
legitimate, non-discriminatory reason for the challenged action; and (3) a plaintiff

meets the ultimate burden of proof by proffering “sufficient evidence to create a

genuine issue of material fact as to whether each of the defendant’s proffered

reasons is pretextual.” Id. at 1243. It is considerably less clear that such burden-

shifting applies in reasonable accommodation cases. We have not directly

addressed this issue,3 and we believe this case, which presents claims of both

disparate treatment and reasonable accommodation, presents an appropriate

opportunity to do so.

We will first address whether Nadler has met his prima facie case with

respect to his back pain and insomnia/depression claims and then address whether

the district court appropriately applied McDonnell Douglas burden-shifting. We

review the district court’s grant of summary judgment on Rehabilitation Act

claims de novo. Hilburn v. Murata Elec., 181 F.3d 1220, 1225 (11th Cir. 1999).

3
We recognize that several of our reasonable accommodation cases contain language from
which courts have implied that the burden-shifting analysis of Title VII is applicable. See e.g.,
Hawkins v. Dale Med. Ctr., No. 1:05-CV-540-SRW, 2006 WL 1537228, *8 (M.D. Ala. May 31,
2006) (“In the Eleventh Circuit, the McDonnell Douglas burden-shifting framework applies to
claims of failure to accommodate under the ADA.”), citing Boone v. Rumsfeld, 172 Fed. Appx.
268, *1 (11th Cir. 2006) (“Discrimination claims brought under the Rehabilitation Act . . . are
analyzed under the three-part test outlined in McDonnell Douglas.”). See also Holly v. Clairson
Indust., No. 06-13365, 2007 U.S. App. LEXIS 17151, *23 (11th Cir. 2007), citing Earl v.
Mervyns, 207 F.3d 1361, 1365 (11th Cir. 2000) (“The burden-shifting analysis of Title VII
employment discrimination claims is applicable to ADA claims.”). However, each of these cases
was resolved on questions of disability or qualification, and the court was never required to reach
the issue of discrimination or to apply or not apply burden shifting.

11
Summary judgment is only proper when the evidence, viewed in the light most

favorable to the non-moving party, indicates that there are no genuine issues of

material fact. Id.

A. The Prima Facie Case for Disability Discrimination

To make out a claim under the Rehabilitation Act, a plaintiff must generally

show (1) he was disabled at the time of the discrimination; (2) he was otherwise

qualified; and (3) he was a victim of discrimination solely because of his

disability. Sutton v. Lader, 185 F. 3d 1203, 1207 (11th Cir. 1999). If establishing

discrimination by disparate treatment, a plaintiff must show (1) that he was subject

to an adverse employment action, (2) that he was qualified for the job at the time,

(3) that his employer knew at the time of the action that the plaintiff had a

disability, and (4) that the adverse action took place in circumstances raising a

reasonable inference that the plaintiff’s disability was a determining factor in the

decision. Wascura, 257 F.3d at 1242. If establishing discrimination by failure to

make reasonable accommodation, a plaintiff must merely show that (1) he was

disabled, (2) he was otherwise qualified, and (3) a reasonable accommodation was

not provided. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.

2001).

12
 In either instance, a plaintiff’s first step is to show that he is disabled. A

plaintiff has a disability within the meaning of the Rehabilitation Act if he can

show (1) he is impaired; (2) his impairment limits a major life activity; and (3) the

limitation is substantial. Rossbach v. City of Miami, 371 F.3d 1354, 1357 (11th

Cir. 2004). Nadler presented evidence that he suffered from insomnia, depression,

and back pain. There is no question that these conditions constituted an

impairment.4 At issue, is whether Plaintiff’s impairments substantially limited a

major life activity. We have considered Plaintiff’s back pain claim for a

reasonable accommodation, and we find it to have no merit. We affirm the district

court’s finding that Nadler’s back pain did not rise to the level of a disability under

the Rehabilitation Act. We will devote the remainder of this opinion to addressing

the Plaintiff’s claims of disparate treatment and failure to make a reasonable

accommodation with respect to his insomnia and depression.

Nadler claims that he was substantially impaired by his insomnia and

depression in the major life activity of sleeping. The first step in analyzing

4
On appeal, the Army points to the fact that the sleep studies in the record were conducted
during the mid-1990s and contends that Nadler did not provide evidence that he was disabled
within the relevant time period 1998-2002 when the alleged discrimination took place. We note,
however, that Nadler presented letters and testimony from his health care providers between
1999-2003 that indicate ongoing impairment. Further, there is nothing in the record to indicate
that Nadler’s condition changed between 1995, when the last sleep study was conducted, and
2002. In any event, as we determine that Nadler is not substantially impaired in sleeping even
considering all the evidence, we need not determine whether any of the evidence was stale.

13
Plaintiff’s claims is determining whether sleeping is a major life activity within the

meaning of the Act. A major life activity is a basic activity that the average person

in the general population can perform with little or no difficulty. 29 C.F.R.

§ 1630, app. Major life activities include “functions such as caring for oneself,

performing manual tasks, walking, seeing, hearing, speaking, breathing, learning

and working.” 45 C.F.R. § 84.3(j)(2)(ii).

While illustrative, this list is not exhaustive, and “the touchstone for

determining an activity’s inclusion under the statutory rubric is its significance.”

Bragdon v. Abbott, 524 U.S. 624, 638 (1998) (discussing reproduction as a

significant activity that is no less important than walking or working). We find

that sleep is a major life activity. See Rossbach, 371 F.3d at 1358 (“the district

court sorted through the variety of activities . . . and properly focused on the major

life activities of walking, sitting, standing, and sleeping”). Our opinion in

Rossbach cited the Tenth Circuit’s holding in Pack v. Kmart Corp., 166 F.3d

1300, 1305 (10th Cir. 1999) (holding that sleep is a major activity), and

characterized sleep as a major life activity without specifically so holding.

Sleeping is a basic activity such as walking, seeing, hearing, or speaking that an

average person can and does perform with little or no difficulty. The majority of

our other sister circuits addressing this issue have also found sleep to be a major

14
life activity. Burks v. Wisconsin Dep’t of Transp., 464 F.3d 744, 755 (7th Cir.

2006); Nuzum v. Ozark Auto. Distrib., Inc., 432 F.3d 839, 848 (8th Cir. 2005);

Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1060 (9th Cir. 2005); Swanson v.

Univ. of Cincinnati, 268 F.3d 307, 314 (6th Cir. 2001); Colwell v. Suffolk Co.

Police Dep’t, 158 F.3d 635, 643 (2d Cir. 1998). We adopt the holdings of our

sister circuits and our characterization in Rossbach and formally hold that sleep

constitutes a major life activity.

After a plaintiff identifies a relevant major life activity, he must present

evidence on the way in which his impairments limit that activity and on how

substantially his impairments limit that activity. An impairment substantially

limits a major activity if it makes an individual completely unable to perform the

activity or if it “significantly restricts the duration, manner or condition under

which an individual can perform a particular major life activity as compared to the

average person in the general population’s ability to perform that same major life

activity.” 29 C.F.R. § 1630, app.; Toyota Motor Mfg., Kentucky, Inc. v. Williams,

534 U.S. 184, 196 (2002) (The court should consider “the nature and severity of

the impairment; the duration or expected duration of the impairment; and the

permanent or long-term impact, or the expected permanent or long-term impact of

or resulting from the impairment”).

15
 We have applied these guidelines to the major life activity of sleeping and

have stated, “Difficulty sleeping is extremely widespread,” and a plaintiff must

present evidence, beyond vague assertions of “a rough night’s sleep” or a need for

medication, “that his affliction is [] worse than [that] suffered by large portion of

the nation’s adult population.” Rossbach, 371 F.3d at 1358 (citing Colwell, 188

F.3d at 644). “[S]omeone who . . . sleeps ‘moderately below average’ is not

disabled under the Act.” Id. Our sister circuits have also applied these guidelines

to insomnia and have found plaintiffs sleeping as little as two and a half hours at a

time and as little as four and a half hours a night not to be substantially impaired.

See Burks, 464 F.3d at 755 (difficulty sleeping for more than three hours is not

substantial when plaintiff presented no medical records or other evidence to

demonstrate the effect of this situation on her ability to function in daily life),

Nuzum, 432 F.3d at 848 (two and a half hours at a time and five hours a night is

not substantially impaired); Swanson, 268 F.3d at 314 (holding that while less than

five hours sleep is not optimal, it is generally not significantly restricted in

comparison to the average person in the general population); but see Head, 413

F.3d at 1060 (holding five to six hours of sleep are enough to raise a genuine issue

16
of material fact when the plaintiff testified that he was drowsy at work due to

medication and a lack of sleep) .5

Here, Nadler asserts that his depression and insomnia limited his ability to

sleep because he slept fewer hours than he felt he needed and the sleep he got was

fragmented. The record indicates that Nadler was getting between four and seven

and a half hours of sleep a night, with an average of five and a half to six and a

half hours and that his sleep quality was between fifty and eighty percent.6 This

evidence established that Nadler’s sleep was limited by his insomnia and

depression, but it did not establish that Nadler was substantially limited. With

medication, Nadler was getting significantly more sleep than the plaintiffs in

Swanson and Newman. Nadler presented no evidence that getting less than a full

night of sleep affected him differently than others. While five and a half to six and

a half hours of sleep per night “is not ideal,” it is likely no more than “moderately

5
If a plaintiff is able to mitigate his sleeping disorder by taking medication, a court must
consider the effect of the medication when determining the plaintiff’s sleep patterns. Sutton v.
United Air Lines, 527 U.S. 471, 482 (1999) (“[I]f a person is taking measures to correct for, or
mitigate, a physical or mental impairment, the effects of those measures – both positive and
negative – must be taken into account when judging whether that person is ‘substantially limited’
in a major life activity and thus ‘disabled’ under the Act.”).
6
Appellant contends that this data does not accurately reflect his sleep because he was
medicated during these studies. However, as we have explained, under the Supreme Court’s
ruling in Sutton, a court can and should consider the mitigating effects of medication when
determining substantial impairment.

17
below average.” Thus, the district court correctly found that Nadler had not

presented sufficient evidence that his insomnia and depression substantially

limited his major life activity of sleeping.7

Even if Nadler was “disabled” within the meaning of the Act, he would not

necessarily be entitled to relief. We will address Nadler’s three allegations of

discrimination separately.

First, Nadler alleges that Newell refused to accommodate his sleep disorder

with a modified compressed work schedule that allowed a flexible start time. In

order to succeed on this claim, Nadler would have to prove that he was otherwise

qualified and that a reasonable accommodation was not provided. A plaintiff is

“otherwise qualified” if he, with or without any reasonable accommodation, can

7
Appellant directs the court to the testimony of Dr. John Sandy who responded
affirmatively in deposition to questions of whether Nadler’s condition “substantially limited his
sleep activity compared to the normal population” and whether he considered Plaintiff to be
suffering “a severe sleep disorder.” Following the Supreme Court’s guidance in Williams,
however, we focus not merely on the medical diagnosis of the plaintiff’s physicians, but rather on
the effect the diagnosed impairment has on the life and abilities of the plaintiff and the plaintiff’s
own testimony concerning his abilities. 534 U.S. at 691 (It “is insufficient for individuals
attempting to prove disability status under this test to merely submit evidence of a medical
diagnosis of an impairment. Instead, the ADA requires those claiming the Act’s protection . . . to
prove a disability by offering evidence that the extent of the limitation [caused by their
impairment] in terms of their own experience . . . is substantial.”); see also 29 C.F.R. pt. 1630
background (explaining that the determination of whether an individual has a disability “must be
made on a case-by-case basis” and “is not necessary based on the name or diagnosis of the
impairment the person has, but rather on the effect of that impairment on the life of the
individual”).

18
perform the essential functions of the job. 42 U.S.C. § 12111(8); Earl, 207 F.3d at

1365. This is a two-step inquiry which requires the court to determine first,

whether the plaintiff can perform the essential functions of the job and second,

whether there is any reasonable accommodation that would allow him to do so.

Lucas, 257 F.3d at 1255. Under the ADA, “part time or modified work

schedule[s]” may be reasonable accommodations. 42 U.S.C. § 12111(9)(B). A

plaintiff bears the burden of identifying his accommodation, and of demonstrating

that the accommodation allows him to perform the essential functions of the job.

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.

1997).

Here, the district court correctly determined, and the parties did not dispute

on appeal, that attendance and punctuality are essential functions of the job and

that Nadler could not arrive on time without an accommodation. The parties

disagreed as to whether Nadler had shown that there was a reasonable

accommodation that would allow him to arrive on time. Nadler demanded a

modified compressed work schedule with a flexible reporting time, however, he

offered no concrete evidence that he could arrive on time or had arrived on time

while on a modified compressed work schedule. The only evidence offered by

Plaintiff was the fact that he had been allowed to work on this schedule for a

19
number of years before Defendant terminated it and that he was currently working

on this schedule. We find this evidence to be insufficient. Defendant’s past

tolerance of Plaintiff’s tardiness is not evidence that Plaintiff could arrive on time.

We hold that Nadler has not met his burden of proving he was “otherwise

qualified.”

Further, Nadler has not shown that a reasonable accommodation was not

provided. Defendant offered Plaintiff a five-day-a-week schedule with a later

reporting time and an option to come in late as needed as long as the time-keeper

was notified and the time was made up. This allowed Plaintiff to arrive at work

outside of core hours and an hour later than his reporting time under a modified

compressed schedule and gave him the flexibility to be later if necessary. Plaintiff

argues that this is not sufficient, yet he offered no evidence on how a modified

compressed work schedule would more appropriately accommodate his disability.

The only evidence he offered was to say that the compressed schedule would

allow him to take Fridays off to take care of personal matters and that he would

otherwise have to utilize leave time for these matters. We do not see the

connection between this benefit and Plaintiff’s insomnia. Plaintiff’s counsel

virtually admitted as much during oral argument when he explained that Plaintiff

could arrive at work as early as 7:00 a.m. if he was allowed every second Friday

20
off, whereas he could only arrive at 9:00 a.m. if required to work five days a week.

Under the Rehabilitation Act “a qualified individual with a disability is not

entitled to the accommodation of [his] choice, but only to a reasonable

accommodation.” Stewart, 117 F.3d at 1285. We find Defendant’s

accommodation was reasonable.

Plaintiff further argues that Defendant engaged in disparate treatment when

he (1) refused to allow Plaintiff to return to work in 1999 without a medical

release and (2) charged Nadler with away-without-leave status in the winter of

2000 and 2001. In order to succeed on this argument, Nadler must prove that

Newell’s acts took place in circumstances raising a reasonable inference that his

disability was a determining factor in the decision. “It is not enough for a plaintiff

to demonstrate that an adverse employment action was based partly on his

disability.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005). “Rather,

under the Rehabilitation Act, a plaintiff must prove that he suffered an adverse

employment action ‘solely by reason of’ his handicap.” Id. (citing 29 U.S.C.

§ 794(a)). We adopt the reasoning of the district court and hold that Nadler met

this burden with respect to the former occurrence but not the latter. Further, we

agree with the district court that Defendant presented valid non-discriminatory

reasons for its actions and that Plaintiff did not prove pretext.

21
 B. McDonnell Douglas Burden-Shifting

After assuming that Plaintiff could make out his prima facie case for

disability, the district court applied McDonnell Douglas burden-shifting to all

three of the Plaintiff’s insomnia claims and held that Plaintiff had failed to

establish pretext. We hold that this analysis was improper as applied to Plaintiff’s

claim that Defendant failed to accommodate his insomnia with a modified

compressed work schedule.

The purpose of McDonnell Douglas burden-shifting is to “sharpen[] the

inquiry into the elusive factual question of intentional discrimination.” St. Mary’s

Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993) (quoting Texas Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 255 n.8 (1981)); accord Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 141 (2000) (stating that “[w]hen a plaintiff

alleges disparate treatment, ‘liability depends on whether the protected trait . . .

actually motivated the employer’s decision’”; thus, McDonnell Douglas is utilized

to alleviate the burden of dealing with this “sensitive and difficult” question that is

seldom subject to direct evidence). Such elusive questions are almost always

present in the sex and race cases from which McDonnell Douglas arose, as an

employer is unlikely to admit that he impermissibly took an employee’s race or

sex into account. Disability disparate treatment cases, in which an employer

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claims that he took an adverse action for reasons unrelated to the employee’s

handicap, also involve the sort of inquiry into subjective facts of motivation that

McDonnell Douglas was designed to address, but these facts are not present in

accommodation cases. An employer must reasonably accommodate an otherwise

qualified employee with a known disability unless the accommodation would

impose an undue hardship in the operation of the business. See 42 U.S.C.

§12111(b)(5)(A) (discussing undue hardship as an affirmative defense). Thus,

applying McDonnell Douglas to reasonable accommodation cases would be

superfluous, since there is no need to prove discriminatory motivation.

A majority of our sister circuits have been persuaded by this distinction, and

we join with them today and hold that McDonnell Douglas burden-shifting is not

applicable to reasonable accommodation cases. Pebbles v. Potter, 354 F.3d 761,

765 (8th Cir. 2004); Lenker v. Methodist Hosp., 210 F.3d 792, 799 (7th Cir. 2002)

(“[W]hen a plaintiff brings a claim under the reasonable accommodation part of

the ADA, the burden shifting method of proof is both unnecessary and

inappropriate”); Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 264

(1st Cir. 1999) (arguing that reasonable accommodation does not require an

employer’s action be motivated by discriminatory animus directed at disability,

and thus “[i]t follows inexorably that the McDonnell Douglas scheme is inapposite

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in respect to such claims.”); Aka v. Washington Hosp. Center, 156 F.3d 1284,

1288 (D.C. Cir. 1998) (en banc) (adopting the analysis of Barth v. Gelb, 2 F. 3d

1180, 1186 (D.C. Cir. 1993)); William v. Channel Master Satellite Sys., Inc., 101

F.3d 346, 348 n.1 (4th Cir. 1996) (“The McDonnell Douglas test is designed to

circumvent a factual dispute over the reasons for discharge, and is therefore most

appropriate when the defendant disavows any reliance on discriminatory reasons

for its adverse employment action.”). Once a plaintiff has shown that he is an

otherwise qualified disabled individual within the meaning of the Act and that a

defendant has not provided a reasonable accommodation, a defendant must

provide a reasonable accommodation unless he can assert an undue hardship as an

affirmative defense. Undue hardship is an affirmative defense to be pled by an

ADA defendant. Willis v. Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997).

Here, Nadler has not presented evidence that he is disabled or otherwise

qualified within the meaning of the Act, and in any event, we find Defendant’s

offered accommodation to be reasonable. Therefore, both Nadler’s disparate

treatment and reasonable accommodation claims fail.

III. Conclusion

For the foregoing reasons, the judgment of the district court is AFFIRMED.

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