[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 30, 2009
No. 08-15901 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00566-CV-4-SPM-WCS
TAWANA MICHELLE DICKEY,
Plaintiff-Appellant,
versus
DOLLAR GENERAL CORPORATION,
DOLGENCORP, INC., a wholly
owned subsidiary of Dollar
General Corporation,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 30, 2009)
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Pro se plaintiff-appellant Tawana Dickey appeals from the district court’s
grant of summary judgment in favor of her former employer on her disability
discrimination and retaliation claims, brought under the Florida Civil Rights Act
(“FCRA”), Fla. Stat. §§ 760.10(1)(a) and (7).1
In her complaint, Dickey alleged that her former employer discriminated
against her based on her medical diagnosis of sarcoidosis, an immune system
disorder, and that she was ultimately terminated from her cashier job in retaliation
for filing her claim with the Florida Commission on Human Relations (FCHR).
The district court granted summary judgment, finding that Dickey failed to
establish a prima facie case of discrimination or retaliation. The district court
found that Dickey did not meet her burden to show (1) a disability that
substantially limited a major life activity, and (2) that she was a qualified
individual because she could not perform the essential functions of her job with or
without reasonable accommodation.2 With respect to the retaliation claim, the
district court found that Dickey failed to prove causation because she knew before
she filed her FCHR claim that she was going to be terminated for her inability to
do the work and her failure to provide a certificate of fitness to return to work.
1
The district court exercised diversity jurisdiction over the complaint. 28 U.S.C.
§ 1332.
2
The only accommodation Dickey suggested was to have another employee perform her
lifting duties. The district court concluded that this accommodation was unreasonable.
2
This appeal followed.
On appeal, Dickey argues that she sufficiently demonstrated a disability and
that she could perform the essential functions of the cashier job with a reasonable
accommodation. She further argues that she introduced evidence sufficient to
support her claim that she was terminated in retaliation for filing her discrimination
complaint.
We review a district court order granting summary judgment de novo,
viewing all of the facts in the record in the light most favorable to the non-moving
party. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1161-
62 (11th Cir. 2006). Summary judgment is appropriate where the moving party
demonstrates, through “pleadings, interrogatories, and admissions on file, together
with the affidavits, if any,” that no issue of material fact exists, and it is “entitled to
judgment as a matter of law.” Fed. R. Civ. P 56(c).
I. Discrimination
Disability discrimination claims under the FCRA are analyzed under the
same framework as the Americans With Disabilities Act (ADA). Greenberg v.
BellSouth Telecomms, Inc., 498 F.3d 1258, 1263-64 (11th Cir. 2007). “In order to
establish a prima facie case of discrimination under the ADA, [a plaintiff] must
demonstrate that [she] (1) is disabled, (2) is a qualified individual, and (3) was
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subjected to unlawful discrimination because of [her] disability.” Id. at 1263-64
(citation omitted).3
A plaintiff qualifies as disabled under the ADA “if [s]he has ‘a physical or
mental impairment that substantially limits one or more of the major life
activities[.]’” Id. at 1264. A person is “substantially limited” in her ability to work
if she is “significantly restricted in the ability to perform either a class of jobs or a
broad range of jobs in various classes.” Cash v. Smith, 231 F.3d 1301, 1306 (11th
Cir. 2000).
To avoid summary judgment in a disability discrimination case, the plaintiff
must provide evidence sufficient for a jury to find that she was “a qualified
individual with a disability,” meaning that she was “otherwise qualified” for the
job in that she could perform the essential functions of that job with or without
reasonable accommodation. Lucas v. Grainger, 257 F.3d 1249, 1255-56, 1258
(11th Cir. 2001) (citations omitted). “An 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. . . . An accommodation can qualify as
3
All of the conduct alleged in Dickey’s complaint occurred prior to the effective date of
the ADA Amendments Act of 2008 (“ADAAA”), Pub.L. No. 110-325, 122 Stat. 3553 (2008),
which became effective on January 1, 2009. Dickey has not asserted that the Act should be
applied retroactively, and we therefore do not address the possible retroactivity of the ADAAA.
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‘reasonable,’ and thus be required by the ADA, only if it enables the employee to
perform the essential functions of the job.” Id. (citations omitted).
Here, the district court properly concluded that Dickey failed to establish a
prima facie case of discrimination. Assuming for the sake of argument that Dickey
was disabled, Dickey failed to show that she was a qualified individual who could
perform the essential functions of her job with or without a reasonable
accommodation.
Dickey admitted that her medical condition prevented her from lifting more
than 15 pounds or standing for long periods of time, which she knew were essential
requirements of the position when she was hired. The only accommodation
Dickey requested was that someone else perform all the significant lifting tasks
otherwise assigned to her. Such an accommodation was not reasonable. “An
employer is not required by the ADA to reallocate job duties in order to change the
essential functions of a job.” Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522,
1528 (11th Cir. 1997).
Because Dickey failed to show that she was a qualified individual or that
Dollar General refused to make a reasonable accommodation, summary judgment
on Dickey’s disability claim was appropriate and we affirm the district court’s
ruling on this issue.
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II. Retaliation
A plaintiff can establish a retaliation claim through either direct or
circumstantial evidence.4 Damon v. Fleming Supermarkets of Florida, Inc., 196
F.3d 1354, 1358 (11th Cir. 1999). Direct evidence is defined as “evidence, which,
if believed, proves the existence of a fact in issue without inference or
presumption. Evidence that only suggests discrimination [or retaliation], or that is
subject to more than one interpretation, does not constitute direct evidence.”
Merritt, 120 F.3d at 1189.
Proceeding with direct evidence has been referred to as the “traditional
framework” for proving discrimination and requires the plaintiff produce evidence
from which the trier of fact could conclude, more likely than not, that an adverse
employment decision was made based on a protected characteristic. See Wright v.
Southland Corp., 187 F.3d 1287, 1289-90 (11th Cir. 1999). If the plaintiff is
successful in carrying this initial burden, the trier of fact is required to consider all
of the evidence and determine whether a protected personal characteristic was the
4
The McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), burden-shifting analysis applies to cases involving circumstantial evidence. The plaintiff
must first show that she established a prima facie case of retaliation. The employer then puts
forth a legitimate, non-retaliatory reason for its decision. The burden then shifts back to the
plaintiff to show that the reason given was a pretext for retaliation. Goldsmith v. Bagby Elevator
Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008). The McDonnell Douglas burden shifting and
pretext analysis does not apply to claims of direct evidence of retaliation. Merritt, 120 F.3d at
1191.
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cause of an adverse employment decision vel non. Id.; see also Merritt v. Dillard
Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (“Where the non-movant presents
direct evidence that, if believed by the jury, would be sufficient to win at trial,
summary judgment is not appropriate even where the movant presents conflicting
evidence.”) (citations omitted).
Here, in her opposition to summary judgment, Dickey provided sworn
testimony that a Dollar General district manager expressly informed her in a phone
call that she was terminated, in part, because she had filed a claim with the FCHR.
This proffer constitutes direct evidence because finding a retaliatory motive based
on this statement requires no inference or presumption. Because the district court
analyzed the claim only under the burden-shifting analysis applicable to
circumstantial evidence, the district court’s ruling regarding Dickey’s retaliation
claim must be reversed and the case remanded for further proceedings, as direct
evidence sufficient to create a genuine issue of material fact precludes summary
judgment under our precedent. Merritt, 120 F.3d at 1189. On remand, the district
court should consider whether or not the protected activity was the cause of
Dickey’s termination.
AFFIRMED IN PART, REVERSED IN PART.
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