[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Dec. 03, 2009
No. 09-12839 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00099-CV-FTM-34-SPC
REINALDO LOPERENA,
Plaintiff-Appellant,
versus
MIKE SCOTT,
in his official capacity as Lee
County Sheriff, a political
subdivision or County Office,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 3, 2009)
Before CARNES, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Reinaldo Loperena appeals the district court’s order granting summary
judgment in his employment discrimination action. After a thorough review of the
record, we affirm.
Loperena served with the New York Police Department for about twenty
years before retiring in 2000. He then served with the National Guard Reserves in
New York following the September 11 attacks, and in 2004, he was activated from
the reserves and deployed to Iraq, where he served until 2005. When he returned
from active duty, Loperena was treated for post-traumatic stress disorder
(“PTSD”). During this time, he began working as a security officer with the
Administrative Office of the Courts in Lee County, Florida. The PTSD did not
impact his employment. He remained in this position for about six months, until
he applied for a position with the Lee County Sheriff’s Office (“LCSO”) to serve
as a bailiff in the state courts.
As part of the hiring process, Loperena completed a “prescreen
questionnaire,” in which he disclosed his military experience and his PTSD
diagnosis. After the LCSO made its initial determination that Loperena was
qualified for the bailiff position, Loperena completed the formal application. The
application including the following questions: “Have you claimed and been
employed using veterans’ preference since October 1, 1987?” and, “Are you
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designated as disabled because of any military service?” Loperena responded yes
to both questions.
Loperena then interviewed with Major Dale Homan and two captains with
the LCSO. Homan began the interview by asking about Loperena’s PTSD.
Loperena answered truthfully that his PTSD was under control. Loperena passed
the interview, and Homan told him he was hired. The human resources department
notified Loperena by letter of his conditional employment, subject to a physical
and psychological examination. After the examinations, conducted by Barbara
Palomino de Velasco, Loperena was deemed fit for employment. Palomino was
aware of Loperena’s mental health treatment and determined that it did not
preclude him from employment.
On May 2, 2007, Loperena arrived at the human resources department to
complete his paperwork and pick up an ID card. While in the office, he spoke with
Dian Bowman. Following this conversation, Bowman spoke with Palomino, who
became concerned about Loperena’s mental status. The LCSO then notified
Loperena that he was required to attend a second psychological evaluation with
Palomino. During this second evaluation, Loperena reported that he was receiving
mental health treatment on a weekly basis, which was more frequent than
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Palomino noted in her previous evaluation.1 Based solely on this exchange,
Palomino changed her evaluation and rated Loperena “unacceptable.” The LCSO
then informed Loperena that he would not be hired.
Loperena filed an amended complaint against Lee County Sheriff Michael
Scott, alleging unlawful employment actions under the Uniform Services
Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C.
§ 4301, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, and the
Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01. Count 1 of the amended
complaint alleged that he was denied employment based on his military status, in
violation of USERRA. Count 2 alleged that Loperena was an otherwise qualified
person with a disability, or was perceived as having a disability, and that he faced
discrimination on that basis. Count 3 alleged that he was subjected to unlawful
employment practices under the FCRA.2
The district court granted summary judgment on all claims. First, the court
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Loperena disputes that he failed to divulge this information during the earlier
interviews. Annmarie Reno, the human resources manager, stated that Palomino informed her
the Loperena was rated “unacceptable” due to concerns that he might hurt himself. We conclude
this discrepancy does not preclude summary judgment. Even if we assume Loperena’s version is
correct, it does not show that Loperena was substantially limited in a major life activity or that
he was perceived as such.
2
Disability discrimination claims under the FCRA are analyzed under the same
framework as the ADA. Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263-64
(11th Cir. 2007).
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rejected Loperena’s claim that the questionnaire was direct evidence of
discrimination. Because Loperena continued the application process after
answering these questions and admitting his PTSD, the court found that, at most,
the question gave rise to an inference of discrimination. The court also rejected
Loperena’s claim that the psychological examinations constituted direct evidence.
Considering whether there was circumstantial evidence of discrimination,
the court found that Loperena had failed to show that he was disabled under the
ADA.3 Specifically, the court found that, although Loperena suffered a mental
impairment, he had not shown that this impairment substantially limited any major
life activity.4 The court next found that there was no evidence the LCSO regarded
Loperena as disabled, as it continued the application process with the knowledge
3
The ADA and its accompanying regulations define “disability” as, inter alia, (1) a
physical or mental impairment that substantially limits one or more of the major life activities of
the individual, or (2) being regarded as having an impairment. 42 U.S.C. § 12102(1) and (2); 34
C.F.R. § 104.3(j)(1); Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1264 (11th Cir.
2007).
4
A mental impairment is defined as “[a]ny mental or psychological disorder, such as . . .
emotional or mental illness . . . .” 29 C.F.R. § 1630.2(h)(2). To be substantially limited, the
employee must be “(i) Unable to perform a major life activity that the average person in the
general population can perform; or (ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a particular major life activity as compared
to . . . the average person . . . .” 29 C.F.R. § 1630.2(j)(1). “Major life activities are “functions
such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.” 29 C.F.R. § 1630.2(i).
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that Loperena suffered from PTSD.5 Finally, the court rejected Loperena’s
USERRA claim because Loperena could not show that “but for” his military
service, he would have been hired, as the evidence showed that the LCSO routinely
hired members of the military.6 This appeal followed.
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 genuine issue of material fact exists,
and it is “entitled to judgment as a matter of law.” Fed. R. Civ. P 56(c).
Loperena asserts that the district court erred by finding that (1) the
questionnaire was not direct evidence of discrimination and was irrelevant; (2) he
was not disabled or regarded as disabled; and (3) he failed to establish a prima
5
To be “regarded as having such an impairment” means that an individual, inter alia,
“[h]as a physical or mental impairment that does not substantially limit major life activities but
is treated by a covered entity as constituting such limitation.” D’Angelo v. Conagra Foods, 422
F.3d 1220, 1228 (11th Cir. 2005) (quoting 29 C.F.R. § 1630.2(l)).
6
To state a claim under USERRA, the plaintiff must show proof of a discriminatory
motive, otherwise known as the “but for” test. 38 U.S.C. § 4311; Coffman v. Chugach Support
Servs., Inc., 411 F.3d 1231, 1238 (11th Cir. 2005). Under this test, Loperena must show by a
preponderance of the evidence that his protected status was a motivating factor in the decision
not to hire him. Coffman, 411 F.3d at 1238.
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facie case under USERRA.
After review of the record and the parties’ briefs, we affirm for the reasons
given in the district court’s thorough order granting summary judgment.
AFFIRMED.
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