[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15710 ELEVENTH CIRCUIT
Non-Argument Calendar NOVEMBER 2, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 7:08-cv-00156-HL
JENNY I. MORALES,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF HUMAN RESOURCES,
Department of Human Resources, Division of Family &
Children Services,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 2, 2011)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Jenny Morales appeals from the district court’s grant of summary judgment
in favor of the Georgia Department of Human Resources, Division of Family and
Children Services (“DFCS”) in her disability discrimination and retaliation suit
under the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794 and
42 U.S.C. § 1981. First, Morales argues that the district court erred when it
dismissed her termination claim because the Rehabilitation Act did not require that
she exhaust her administrative remedies before filing suit. Second, Morales
argues that, contrary to the court’s finding, she was disabled in the major life
activity of walking because she had medical restrictions that limited her walking.
Third, Morales contends that DFCS regarded her as disabled, which it showed
when it placed her on Family and Medical Leave (“FML”) because it could not
accommodate her medical restrictions. Fourth, Morales asserts that she
established a prima facie case of retaliation by showing close temporal proximity
between her charges of discrimination and her written reprimands, placement on
FML, and termination. Finally, Morales contends that DFCS’s reasons for placing
Morales on leave and firing her were pretextual, as evidenced by DFCS’s actions
following Morales’s charges of discrimination.
“[W]e review the granting of summary judgment de novo, and the district
court’s findings of fact for clear error.” Robinson v. Tyson Foods, Inc., 595 F.3d
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1269, 1273 (11th Cir. 2010). If the movant satisfies the burden of production
showing that there is no genuine issue of fact, “the nonmoving party must present
evidence beyond the pleadings showing that a reasonable jury could find in its
favor.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (quotation
omitted). “We draw all factual inferences in a light most favorable to the non-
moving party.” Id. Nevertheless, the non-moving party cannot create a genuine
issue of material fact through speculation. Id. Moreover, the non-moving party
cannot create a genuine issue through evidence that is “merely colorable” or “not
significantly probative.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50,
106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
I. Termination Claim
The Rehabilitation Act prohibits federal agencies from discriminating in
employment against qualified individuals with disabilities. Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005); 29 U.S.C. § 794(a). “[P]rivate actions against
federal government employers under the [Rehabilitation] Act, whether brought
under section 791 or 794, must satisfy the requirement of exhaustion of
administrative remedies in the manner prescribed by section [794a(a)(1)] and thus
by Title VII.” Doe v. Garrett, 903 F.2d 1455, 1461 (11th Cir. 1990) (brackets in
original) (quotation omitted). However, an action against a non-federal employer
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under the Rehabilitation Act does not require exhaustion of administrative
remedies. See id. at 1459-61; 29 U.S.C. § 794a(a)(2); Gean v. Hattaway, 330 F.3d
758, 774-75 (6th Cir. 2003) (holding that suits against non-federal employers
under § 794a(a)(2) do not require exhaustion of administrative remedies).
DFCS has conceded on appeal that the district court erred when it dismissed
Morales’s termination claim for failure to exhaust. In any event, we may affirm a
judgment on any legal ground, regardless of the grounds addressed and relied
upon by the district court. See National R.R. Passenger Corp. v. Rountree
Transport and Rigging, 286 F.3d 1233, 1263 (11th Cir. 2002) (explaining that an
appellate court may affirm the district court’s grant of summary judgment “as long
as the judgment entered is correct on any legal ground regardless of the grounds
addressed, adopted, or rejected by the district court”) (quotation omitted). As
discussed below, DFCS presented legitimate, non-retaliatory reasons for
terminating Morales, and Morales failed to show that the reasons were pretextual.
II. Whether Morales Was Disabled
“The standard for determining liability under the Rehabilitation Act is the
same as that under the Americans with Disabilities Act.” Ellis v. England, 432
F.3d 1321, 1326 (11th Cir. 2005). “[T]hus, cases involving the ADA are
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precedent for those involving the Rehabilitation Act.” Id.; see also 29 U.S.C. § 794(d).
“In order to establish a prima facie case of discrimination under the ADA,
[the plaintiff] must demonstrate that she (1) is disabled, (2) is a qualified
individual, and (3) was subjected to unlawful discrimination because of her
disability.” Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000); 42 U.S.C.
§ 12112(a). The ADA defines disability as “(A) a physical or mental impairment
that substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1).1 On the issue of whether an impairment
substantially limits a major life activity, “[w]e are guided . . . by the regulations
promulgated by the Equal Employment Opportunity Commission, which state that
major life activities means functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Cash,
231 F.3d at 1305 (quotation omitted). The ADA defines a “qualified individual”
1
Congress amended the ADA by enacting the ADA Amendments Act
(“ADAAA”), effective January 1, 2009. See Pub. L. No. 110-325, 122 Stat. 3553. Among
other things, the Act expanded the definition of disability. Id. § 4. The district court
explicitly chose not to apply the changes in the ADAAA retroactively to Morales’s claims.
On appeal, Morales has not argued that the court erred in this decision or that the ADAAA
should be applied retroactively. Thus, we need not decide in this case whether the ADAAA
applies retroactively. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002)
(holding that we need not address an issue that was not raised by the appellant on appeal).
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as an individual with a disability “who, with or without reasonable
accommodation, can perform the essential functions” of her job. 42 U.S.C.
§ 12111(8).
As an initial matter, Morales fails to raise any arguments regarding her
disability claims for a mental impairment, back injury, standing, and lifting, and
thus, she has abandoned these claims. See Marek v. Singletary, 62 F.3d 1295,
1298 n.2 (11th Cir. 1995) (holding that “[i]ssues not clearly raised in the briefs are
considered abandoned”).
The court did not err in finding that Morales was not disabled. She did not
request a handicap permit or special parking space, she used a cane to mitigate her
impairment, she was released back to work by her doctor a number of times, and
she only received an impairment rating of nine percent for her lower extremity and
four percent overall.
III. Whether Morales Was Regarded As Disabled
Under the EEOC regulations interpreting the ADA, to be “regarded as”
having an impairment means that an individual:
(1) Has a physical or mental impairment that does not substantially
limit major life activities but is treated by a covered entity as
constituting such limitation;
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(2) Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or
(3) Has none of the impairments defined in paragraph (h)(1) or (2) of
this section but is treated by a covered entity as having a substantially
limiting impairment.
D’Angelo v. Conagra Foods, Inc., 422 F.3d 1220, 1228 (11th Cir. 2005) (citing 29
C.F.R. § 1630.2(l)). “In order for [the plaintiff] to establish that [the defendant]
regarded her as substantially limited in her ability to work, she must prove that
[the defendant] considered her as significantly restricted in the ability to perform
either a class of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills, and abilities.” Cash, 231 F.3d
at 1306 (quotation omitted).
The evidence did not show that DFCS regarded Morales as disabled.
Although DFCS placed Morales on FML because it could not accommodate her in
her current position, DFCS never said that it regarded Morales as incapable of
working a broad range of jobs. Furthermore, DFCS did not need to provide
Morales with a different position because (1) Morales never asked for a voluntary
demotion and (2) DFCS did not have an accommodating position for her. See
Willis v. Conopco, Inc., 108 F.3d 282, 284 (11th Cir.1997) (holding that
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reassignment is only a reasonable accommodation if a position for which the
plaintiff is qualified is available).
IV. Prima Facie Retaliation
The Rehabilitation Act incorporates the anti-retaliation provision from
§ 12203(a) of the ADA. 29 U.S.C. §§ 791(g), 793(d), 794(d). Retaliation claims
under the ADA are analyzed under the framework of Title VII. See Standard v.
A.B.E.L. Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998) (holding that “[w]e
assess ADA retaliation claims under the same framework we employ for
retaliation claims under Title VII”) (quotation omitted).
Title VII prohibits an employer from retaliating against an employee for
filing a charge or reporting discrimination. 42 U.S.C. § 2000e-3(a). A retaliation
claim is analyzed according to the burden-shifting framework established by
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). Goldsmith v. City of Artmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993).
To establish a prima facie case for retaliation, a plaintiff may show that: (1)
he engaged in a statutorily protected activity; (2) he suffered a materially adverse
employment action; and (3) the adverse employment action was causally related to
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the protected activity. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,
1277 (11th Cir. 2008).
Under the first prong, an employee engages in statutorily protected activity
if he has opposed any employment practice made unlawful by Title VII. 42 U.S.C.
§ 2000e-3(a); Clover v. Total System Services, Inc., 176 F.3d 1346, 1350 (11th
Cir. 1999). As to the second prong of a prima facie case, “a plaintiff must show
that a reasonable employee would have found the challenged action materially
adverse.” Burlington Northern and Sante Fe Ry. Co. v. White, 548 U.S. 53, 68,
126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006). A materially adverse action is one
that “well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. (quotations omitted). In Burlington Northern, the
Supreme Court clarified that “[t]he antiretaliation provision [of Title VII] protects
an individual not from all retaliation, but from retaliation that produces an injury
or harm.” Id. at 67, 126 S.Ct. at 2414. The acts must be material and significant
and not trivial. Id. at 68, 126 S.Ct. at 2415.
Under the third prong, we construe the causal-relationship element broadly,
so that a plaintiff simply has to demonstrate that the protected activity and adverse
action are not completely unrelated. Higdon v. Jackson, 393 F.3d 1211, 1220
(11th Cir. 2004). A “close temporal proximity” between the employee’s protected
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activity and adverse actions may be sufficient circumstantial evidence to create a
genuine issue of material fact of a causal connection. Brungart v. BellSouth
Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000).
None of Morales’s evaluations or reprimands were (1) adverse or (2)
causally connected to her charges of discrimination. Morales failed to show that
the Documentation of Counseling was a material injury or harm. There is no
evidence that the Documentation affected her salary or job status. Further, she
failed to show that the Documentation would have affected any of her future pay
raises. Additionally, DFCS’s removal of Morales from the Medicaid application
position did not dissuade Morales from making another charge of discrimination
on May 13, 2008. Moreover, the move out of the Medicaid position occurred over
four months after her initial charge, and she thus fails to show any temporal
proximity or causal connection between the two. Similarly, the uncontested
evidence shows that the Documentation of Counseling was contemplated before
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she filed her second charge.2 Thus, Morales failed to establish a prima facie case
of retaliation as to her evaluations and reprimands.
V. Pretext
Under the McDonnell Douglas framework, if the plaintiff establishes a
prima facie case of discrimination, then the defendant must show a legitimate,
non-discriminatory reason for its employment action. Burke-Fowler v. Orange
County, 447 F.3d 1319, 1323 (11th Cir. 2006). If the defendant’s reason is
legitimate and non-discriminatory, then the plaintiff must prove that the reason
provided by the defendant is a pretext for unlawful discrimination. Id.
DFCS placed Morales on FML because it could not accommodate her
restriction of walking only one hour per day. Contrary to her contention, Morales
could not have been accommodated by being placed in another position because
DFCS had filled all of its positions and Morales never asked for a voluntary
demotion. Furthermore, DFCS fired Morales because she failed to contact DFCS
or return to work at the end of her FML. Morales provided no evidence that
DFCS’s reasons for placing her on leave and firing her were pretextual.
2
Morales’s complaint cited her filing of the charge as the instigating event that caused
DFCS to retaliate against her. It was not until her response to DFCS’s motion for summary
judgment that Morales claimed she had warned in April that she would file again. However, a
plaintiff may not amend her complaint through argument in a brief opposing summary judgment.
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
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Accordingly, upon review of the record and consideration of the parties’
briefs, we affirm the district court’s grant of summary judgment in favor of DFCS.
AFFIRMED.3
3
Morales’s request for oral argument is denied.
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