[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
_____________________________U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOVEMBER 9, 2007
No. 06-15650
_____________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-02532 CV-RWS-1
V. STEPHEN MOORE,
Plaintiff-Appellant,
versus
ACCENTURE, LLP,
Defendant-Appellee.
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(November 9, 2007)
Before EDMONDSON, Chief Judge, CARNES and FAY, Circuit Judges.
PER CURIAM:
This case is the third in a series of lawsuits filed by V. Stephen Moore
(“Plaintiff”) against his employer Accenture, LLP (“Defendant”). In the current
round of litigation, Plaintiff alleges that Defendant has discriminated against him
on account of his disability in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101 et. seq., and on account of his age in violation of the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et. seq.
Plaintiff’s main contention is that Defendant refused to accommodate Plaintiff’s
request to return to work after an extended leave of absence. The district court
dismissed Plaintiff’s claims for want of subject matter jurisdiction under Rule
12(b)(1): Plaintiff lacked standing because he suffered no injury in fact. Plaintiff
now appeals. We affirm, although we do so on other grounds.
Background
Plaintiff worked for Defendant from 1987 until he became disabled in 1992.
Then, Defendant accommodated Plaintiff’s disability by placing him on leave of
absence, which allowed him to keep his health, dental, and life insurance
coverage. Defendant also assured Plaintiff that he would continue to receive the
benefits “for as long as the disability lasted.” But, in 2002, Defendant issued a
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new policy memorandum informing Plaintiff and other disabled employees on
long-term leave of absence that they must return to work by 1 January 2005 or
their employment, as well as their insurance coverage, would be terminated.
In March 2004, Plaintiff’s counsel sent a letter1 to Defendant alleging ADA
violations and demanding that Defendant grant one of three proposed
accommodations: (1) Plaintiff remains on leave of absence under the old policy,
which would allow him to retain his employment and insurance benefits; (2)
Plaintiff returns to work with reasonable accommodation; or (3) Plaintiff receives
a severance package that would defray the costs of his ongoing health care. At
Defendant’s request, Plaintiff provided a letter from his physician stating that
Plaintiff could perform work on a limited, part-time basis but that a description of
the applicable position was needed before the physician could clear Plaintiff for
work. Defendant, however, has not provided job descriptions to Plaintiff’s
physician or otherwise identified potentially available positions for Plaintiff.
Despite Plaintiff’s request for accommodation, Defendant did not offer Plaintiff a
position that would accommodate his disability and did not even engage in the
interactive process of determining whether such a position was available.
1
Plaintiff relies on this letter, to which he refers in his complaint, as proof of his demand that he
be allowed to return to work with reasonable accommodation. A copy of the letter was attached to
Plaintiff’s Response to Defendant’s Motion to Dismiss.
3
After filing charges of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), Plaintiff filed a putative class action against
Defendant in October 2004, alleging that the new policy violated the Employment
Retirement Income Security Act (“ERISA”). Moore v. Accenture, LLP, No.
1:04CV3116-TWT (N.D. Ga. filed Oct. 25, 2004) (“Moore I”). But, before
Defendant was served with the complaint, Plaintiff voluntarily dismissed the suit
on 8 December 2004. The next day, Defendant began notifying its disabled
employees who were on leave of absence, including Plaintiff, that they would not
be terminated under the new policy, but would instead retain their leave of absence
status under the old policy.
Even so, on 21 December 2004, Plaintiff filed a second class action suit
against Defendant, seeking a declaratory judgment that the new policy, as formerly
applied, violated ERISA. Moore v. Accenture, LLP, No. 1:04CV3717-TWT (N.D.
Ga. May 6, 2005) (“Moore II”). The complaint stated that, although the
“underlying issues in this matter [had] been resolved by Defendant,” the purpose
of filing suit was “to obtain attorney fees from Defendant based upon [the class
action Plaintiffs] obtaining substantial equitable relief.” Id. at *1 (alteration in
original). The district court granted Defendant’s motion to dismiss on grounds
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that Plaintiff lacked standing – that is, injury in fact – to challenge the new policy
because it no longer applied to him. Id. at *4.
In September 2005, after the EEOC declined to litigate his ADA and ADEA
claims, Plaintiff brought the suit at issue here (“Moore III”). Plaintiff asserts that
Defendant discriminated against him on the basis of his disability and age by
refusing to accommodate his March 2004 request to return to work with
reasonable accommodation or to find some other alternative to his eventual
termination under the new leave of absence policy. Plaintiff specifically alleged
that Defendant denied him (1) access to Defendant’s disability accommodation
process, (2) an alternative to his eventual termination, (3) job descriptions for
available positions, and (4) an accommodated position. Summarizing his
complaint, Plaintiff claims that “[Defendant] essentially refused to enter into the
interactive process of determining whether an accommodated position was
available for [Plaintiff].”
Defendant filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6),
arguing that Plaintiff again lacked standing to file suit and also that his complaint
failed to state a claim. The district court dismissed the entire complaint for lack of
subject matter jurisdiction under Rule 12(b)(1). The court reasoned that Plaintiff
could not establish an injury in fact – and therefore lacked standing to bring suit --
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because Defendant “never failed to provide the accommodation which [Plaintiff]
had previously received and which, when notified of its termination, [Plaintiff]
requested be continued.” The district court also dismissed Plaintiff’s claim under
the ADEA2 and denied as moot Plaintiff’s motion to disqualify Defendant’s
counsel.
Discussion
Plaintiff’s main contention is that Defendant failed to engage in the
interactive process required by the ADA to determine a mutually agreeable
accommodation for his disability. In particular, Plaintiff argues that Defendant
failed to accommodate his request, as set forth in his March 2004 letter to
Defendant, that he be returned to work in an accommodated position with pay.
We disagree with the district court’s conclusion that Plaintiff’s claim does not
present injury in fact for the purpose of constitutional standing. As long as
Defendant had a legal duty under the ADA to engage in the interactive process of
finding Plaintiff an accommodated position, its failure to engage in that process
would create an injury in fact that is both concrete and specific. See Williams v.
2
Plaintiff does not appeal the dismissal of his ADEA claim.
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Bd. of Regents, 477 F.3d 1282, 1302 (11th Cir. 2007) (stating that injury in fact
“arises from the invasion of a legally protected interest that is sufficiently concrete
and particularized, and not abstract and indefinite” (emphasis added)).
By “conflating the standing inquiry with resolution of the merits,” the
district court improperly relied on standing analysis to dismiss Plaintiff’s claim
under Rule 12(b)(1), even though the dispositive issue went to the merits. See
Wooden v. Bd. of Regents, 247 F.3d 1262, 1280 (11th Cir. 2001) (“[Standing] is a
threshold determination that is conceptually distinct from whether the plaintiff is
entitled to prevail on the merits.”). The issue was not whether Plaintiff was
injured by Defendant’s refusal to engage in the interactive process of determining
a reasonable accommodation; instead, the issue was whether Defendant had a legal
duty to do so. Thus, rather than dismissing Plaintiff’s claim for lack of standing,
the district court should have examined whether, accepting Plaintiff’s allegations
as true, his complaint stated a claim for relief under the ADA pursuant to Rule
12(b)(6). See Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003) (“If
a jurisdictional challenge does implicate the merits of the underlying claim then:
‘[T]he proper course of action for the district court . . . is to find that jurisdiction
exists and deal with the objection as a direct attack on the merits of the plaintiff’s
case . . . .’” (alteration in original)).
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We are not bound by the district court’s reasoning, however. Even if the
district court erred by dismissing Plaintiff’s claims for lack of standing, we may
still affirm its decision on different grounds. See, e.g., Powers v. United States,
996 F.2d 1121, 1123 (11th Cir. 1993) (“We affirm the judgment of the district
court dismissing this action, but for reasons other than those used by the district
court.”). To the extent, therefore, that Plaintiff’s claim is based on Defendant’s
failure to engage in the interactive process of finding a reasonable accommodation
for Plaintiff to return to work, we conclude that Plaintiff’s complaint fails to state
a claim for which relief may be granted.
Under the ADA, “[a]n employer unlawfully discriminates against a qualified
individual with a disability when the employer fails to provide ‘reasonable
accommodations’ for the disability – unless doing so would impose undue
hardship on the employer.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255
(11th Cir. 2001) (citing 42 U.S.C. § 12112(b)(5)(A)). Plaintiff does not allege,
however, that his current arrangement, which allows Plaintiff to remain on
extended leave of absence while retaining his insurance benefits, is less than a
reasonable accommodation. Plaintiff’s own complaint acknowledged that “[a]fter
[Plaintiff] became disabled, [Defendant] accommodated [Plaintiff], pursuant to its
obligations under the ADA, by placing him on a leave of absence.” Instead,
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Plaintiff argues that Defendant violated the ADA by refusing to accommodate,
through the interactive accommodation process, Plaintiff’s additional request for a
formal paid position.
To establish an ADA violation, it is not enough to show that Defendant –
while granting a reasonable and full accommodation – denied a different requested
accommodation. We have made clear “that an 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) (internal quotation marks omitted). Stated more plainly, “a qualified
individual with a disability is not entitled to the accommodation of her choice, but
only to a reasonable accommodation.” Id. at 1286 (internal quotation marks
omitted). Absent an allegation that Plaintiff’s ongoing arrangement with
Defendant was unreasonable,3 we cannot conclude that Defendant had an
obligation to offer Plaintiff a paid position or to engage otherwise in the
interactive process of finding a reasonable accommodation for Plaintiff. Cf. Willis
v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (observing that the ADA
3
Plaintiff’s March 2004 letter to Defendant requesting one of three potential accommodations,
the first of which included the option of allowing Plaintiff to retain his leave of absence status,
buttresses the notion that Plaintiff’s current arrangement, whereby he remains on leave of absence,
is reasonable. In effect, by allowing Plaintiff to remain on leave of absence and thereby retain his
insurance benefits, Defendant afforded Plaintiff his first choice of potential accommodations.
9
does not “require an ‘interactive process’ such that an employer can be held liable
merely for failing to engage in the process itself (regardless of whether a
‘reasonable accommodation’ could in reality have been made for the employee)”).
Plaintiff’s complaint fails, therefore, to state a claim for relief under the ADA.
Conclusion
Because Defendant afforded Plaintiff reasonable accommodation by
allowing him to remain on leave of absence and thus to retain his insurance
benefits, we conclude that Defendant had no duty under the ADA to provide
Plaintiff with his choice of a different accommodation. To the extent, then, that
Plaintiff alleges that Defendant violated the ADA by denying him a paid position
or by refusing to engage in the interactive process of finding a reasonable
accommodation for Plaintiff to return to work, Plaintiff’s complaint fails to state a
claim for which we may grant relief. Accordingly, we affirm the district court’s
decision to dismiss Plaintiff’s claim, although we do so under Rule 12(b)(6).4
4
Plaintiff also moved in district court to disqualify Defendant’s counsel because, according to
Plaintiff, Defendant’s counsel was likely to be a witness in the case. Because the district court
correctly dismissed Plaintiff’s complaint, we also conclude that the district court properly dismissed
as moot Plaintiff’s motion to disqualify Defendant’s counsel.
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AFFIRMED.
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