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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11751
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-03269-GGB
BEVERLY GILLIARD,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF CORRECTIONS,
CHARLES SMITH,
SCOTT POITEVINT,
UTE SHEPHERD,
BECKY EAST,
CINDY SCHWEIGER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 7, 2012)
Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Beverly Gilliard, appearing pro se, appeals the magistrate judge’s
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grant of summary judgment to Becky East, Scott Poitevint, Ute Shepherd, Charles
Smith, Cindy Schweigler (collectively, “individual defendants”), and the Georgia
Department of Corrections (“GDC”), her employer (collectively, “defendants”) in
her disability-discrimination suit brought under the Americans with Disabilities
Act (“ADA”), the Rehabilitation Act (“Rehab Act”), and the Family and Medical
Leave Act (“FMLA”).1 Gilliard sought monetary damages and prospective
injunctive relief.
I.
On appeal, Gilliard argues that she qualified for FMLA leave, she exercised
her FMLA rights, she suffered adverse employment actions, namely, a five-percent
salary reduction and termination, and there was a causal connection between her
exercising her FMLA rights and those adverse actions. Gilliard argues that, to the
extent she took excessive leave, it was due to the defendants’ refusal to
accommodate her. Furthermore, Gilliard contends that the defendants violated the
FMLA by requiring her to return a certain form completed by her doctor sooner
than the 15-day period provided under the FMLA, and that the defendants
interfered with her FMLA rights because she received 3 days less than the full 12
1
Both parties consented to jurisdiction by a U.S. Magistrate Judge pursuant to 28 U.S.C.
§ 636 et seq.
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weeks of FMLA leave, as she had sick and annual leave available when she was
terminated. Gilliard alleges that Schweiger designated Gilliard’s FMLA leave
retroactively, in violation of the FMLA. Gilliard also argues that she was denied
extended leave after her FMLA leave expired on October 20, 2008, which was
unreasonable where she provided a physician’s form indicating that she would be
disabled until February 1, 2009. Finally, Gilliard argues that, based on the timing
between her requests for accommodations, her filing of a charge with the Equal
Employment Opportunity Commission (“EEOC”), her use of FMLA leave, and her
termination, she produced enough evidence for a reasonable trier of fact to
conclude that the defendants’ proffered reasons—that she failed to return to work
at the expiration of her FMLA leave, she was not satisfactorily performing her
duties prior to taking FMLA leave, and her absence would burden other
employees—were pretextual.
The defendants respond that Gilliard’s FMLA claims against GDC and the
individual defendants in their official capacities are barred by Eleventh
Amendment immunity. They contend that, with regard to Gilliard’s claims for
injunctive relief, she applied for Social Security Disability (“SSDI”) benefits in a
separate proceeding and claimed that she was totally disabled as of August 2008,
which would estop her claims for reinstatement or front pay because she was
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claiming to be unable to work prior to her termination in October 2008.
We review a court’s order granting summary judgment de novo, “viewing
all the evidence, and drawing all reasonable inferences, in favor of the
non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th
Cir. 2005) (per curiam). Summary judgment is only proper if there are no genuine
issues of material fact, and the moving party is entitled to judgment as a matter of
law. Id. “A mere ‘scintilla’ of evidence supporting the opposing party’s position
will not suffice; there must be enough of a showing that the jury could reasonably
find for that party.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d
1160, 1162 (11th Cir. 2006). Arguments that are not briefed on appeal are deemed
abandoned. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.
2004).
Under the FMLA, “an eligible employee shall be entitled to a total of 12
workweeks of leave during any 12-month period” for “a serious health condition
that makes the employee unable to perform the functions of [her] position.” 29
U.S.C. § 2612(a)(1)(D). Employers are responsible for designating leave as
FMLA-qualifying, and when the employer has enough information to determine
whether leave is being taken for a FMLA-qualifying reason, the employer must
notify the employee within five business days whether the leave will be designated
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and counted as FMLA leave. 29 C.F.R. § 825.300(d)(1). An employee is entitled
to additional notification if the employer retroactively designates FMLA leave
only if the employer does not designate the leave as required by § 825.300. 29
C.F.R. § 825.301(d). The leave provisions of the FMLA are “wholly distinct from
the reasonable accommodation obligations of employers covered under the ADA.”
29 C.F.R. § 825.702(a) (internal brackets omitted).
We have recognized that the FMLA “creates two types of claims:
interference claims, in which an employee asserts that his employer denied or
otherwise interfered with his substantive rights under the Act, and retaliation
claims, in which an employee asserts that his employer discriminated against him
because he engaged in activity protected by the Act.” Hurlbert v. St. Mary’s
Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) (internal quotation
marks omitted). “To establish an interference claim, an employee need only
demonstrate by a preponderance of the evidence that he was entitled to the benefit
denied.” Id. (internal quotation marks omitted).
Where a plaintiff alleges an FMLA retaliation claim without direct evidence
of the employer’s retaliatory intent, we apply the burden-shifting framework for
evaluating discrimination claims under Title VII of the Civil Rights Act of 1964
(“Title VII”) established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
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S. Ct. 1817 (1973). Id. at 1297. To establish a prima facie case of retaliation
under that framework, the plaintiff must show that (1) she engaged in statutorily
protected conduct; (2) she experienced an adverse employment action; and (3)
there is a causal connection between the protected activity and the adverse
employment action. Id. If the plaintiff establishes a prima facie case, the burden
then shifts to the defendant to articulate a legitimate reason for the adverse action.
Id. If the defendant provides such a reason, the plaintiff must then show that the
defendant’s proffered reason for the adverse action is pretextual. Id. To establish
a retaliation claim, the plaintiff also must show that the employer’s actions were
motivated by an “impermissible retaliatory or discriminatory animus.” Strickland
v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th
Cir. 2001). The causation element may be shown by the temporal proximity of the
complaints to the adverse employment action, “[b]ut mere temporal proximity,
without more, must be ‘very close.’” Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007) (per curiam) (quoting Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001). In Thomas, we stated
that a three-to-four-month disparity between the protected activity and the adverse
employment action was not sufficient without other evidence tending to show
causation. 506 F.3d at 1364.
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Pretext means that the reason given by the employer was not the real reason
for the adverse employment decision. Combs v. Plantation Patterns, 106 F.3d
1519, 1528 (11th Cir. 1997). “[A] reason cannot be proved to be a ‘pretext for
discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515, 113 S. Ct. 2742, 2752 (1993). In this respect, conclusory allegations or
unsupported assertions of discrimination, without more, do not raise an inference
of pretext where an employer has offered extensive evidence of legitimate,
nondiscriminatory reasons for its actions. Mayfield v. Patterson Pump Co., 101
F.3d 1371, 1376 (11th Cir. 1996). Instead, the plaintiff “must meet [the proffered]
reason head on and rebut it, and the employee cannot succeed by simply
quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d
1012, 1030 (11th Cir. 2000) (en banc). A plaintiff will withstand summary
judgment by demonstrating “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy of credence.”
Combs, 106 F.3d at 1538 (internal quotation marks omitted).
In Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797, 119 S. Ct.
1597, 1600 (1999), the Supreme Court stated that the pursuit, and receipt, of SSDI
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benefits, which are provided to persons with disabilities so severe that they are
unable to do their previous work and cannot engage in gainful employment, does
not automatically estop a recipient from pursuing an ADA claim. We have not
addressed whether Cleveland applies in the context of a plaintiff’s FMLA claims.
As an initial matter, Gilliard does not argue on appeal that the magistrate
judge erred in finding that her FMLA claims for monetary relief against GDC and
the individual defendants in their official capacities were barred by the Eleventh
Amendment, and, thus, she has abandoned those claims. Gilliard’s claims for
prospective injunctive relief remain, and even if we held that Cleveland applied in
the context of Gilliard’s FMLA claims, an issue we need not reach, she would not
be estopped from pursuing her remaining claims, as discussed below.
With regard to Gilliard’s FMLA interference claim, any issue of fact was
not material because Gilliard did not present more than a scintilla of evidence
showing that her 12-week FMLA leave period was reduced by 3 days. To the
extent that Gilliard argues that the failure to provide her with extended leave at the
conclusion of her FMLA leave denied her of a reasonable accommodation, the
reasonable-accommodation requirement under the ADA is distinct from a FMLA
interference claim. Moreover, the FMLA did not require GDC to provide more
than the 12 weeks of job-protected leave that Gilliard received.
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With regard to Gilliard’s FMLA retaliation claims, assuming, arguendo,
that she established a prima facie case of retaliation under the FMLA, she did not
establish that the legitimate, nondiscriminatory reasons proffered by the
defendants for the proposed five-percent salary reduction and her termination were
pretexts for retaliation. She did not demonstrate that the proffered reasons were
not the “real” reasons for those employment actions, or that the real reasons were
discriminatory animus against her.
Finally, Gilliard received notice that her leave was designated as FMLA
leave in accordance with § 825.300(d)(1) because she received notice within five
business days of East’s receipt of the necessary information. Thus, Gilliard’s
leave was not improperly designated retroactively as FMLA leave. Accordingly,
we conclude that the magistrate judge did not err in concluding that the defendants
were entitled to summary judgment as to Gilliard’s FMLA claims.
II.
Gilliard argues that she was locked in her supervisor Smith’s office, which
placed her in a hostile environment, that she filed an internal complaint, and Smith
then retaliated against her by writing a Memorandum of Concern (“MOC”).
Gilliard argues that she established a prima facie case for disability discrimination
under the Rehab Act and the ADA because she is a qualified individual with a
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disability, she suffered adverse employment actions, including termination and a
salary reduction, and she was replaced by a less qualified and non-disabled
employee after she was reassigned or demoted. Gilliard argues that she was
impaired under the ADA and Rehab Act based on (1) “stroke level” hypertension,
(2) mental illness that affected her ability to concentrate and sleep, (3) spinal
arthritis and a bulging disc or sciatica causing chronic back pain, and (4)
osteoarthritis that required knee-replacement surgery that affected her ability to
walk, stand, and sit. Gilliard contends that she was denied various reasonable
accommodations she requested, including (1) to wear sneakers, (2) an adjusted
four-day workweek schedule to attend therapy, (3) an office to accommodate her
wheelchair, and (4) a closer parking space that she did not receive until after 30
days. Gilliard argues that Smith called her a “cripple” and a “hopalong,” and the
Rehab Act prohibits employers from treating an employee as impaired. Gilliard
argues that, after she filed a charge with the EEOC, Smith retaliated against her by
requiring her to sign in and out daily.
Again, we review a district court’s order granting summary judgment de
novo, “viewing all the evidence, and drawing all reasonable inferences, in favor of
the non-moving party.” Vessels, 408 F.3d at 767. A mere ‘scintilla’ of evidence
supporting the opposing party’s position will not suffice to withstand summary
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judgment. Brooks, 446 F.3d at 1162. The proper procedure for a plaintiff to assert
a new claim is to amend the complaint, and not through argument in a brief
opposing summary judgment. Gilmour v. Gates, McDonald & Co., 382 F.3d
1312, 1315 (11th Cir. 2004) (per curiam). We may affirm on any ground that
appears in the record, regardless of whether the district court considered or relied
upon that ground. Thomas, 506 F.3d at 1364.
The ADA provides that no covered employer “shall discriminate against a
qualified individual with a disability because of the disability of such individual in
regard to . . . discharge of employees” and any of the “terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a) (2007).2 We evaluate
disability-discrimination claims brought under the ADA under the McDonnell
Douglas framework, under which, the plaintiff must first establish a prima facie
case of discrimination. Cleveland v. Home Shopping Network, Inc., 369 F.3d
1189, 1193 (11th Cir. 2004). To establish a prima facie case of employment
discrimination under the ADA, a plaintiff must show that: (1) she has a disability;
2
Congress recently enacted major changes to the ADA by adoption of the Americans
with Disabilities Act Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat.
3553 (2008), effective Jan. 1, 2009. All of the conduct alleged in Gilliard’s complaint occurred
prior to the ADAAA’s effective date. In granting the defendants’ motion for summary judgment,
the magistrate judge applied pre-amendment ADA law. We have not addressed in a published
opinion the issue of whether the ADAAA applies retroactively. Because Gilliard does not assert
that the magistrate erred by applying the pre-amendment ADA laws, we do not address the
ADAAA’s potential retroactivity.
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(2) she is a qualified individual with or without a reasonable accommodation; and
(3) she was discriminated against because of her disability. Rossbach v. City of
Miami, 371 F.3d 1354, 1356–57 (11th Cir. 2004) (per curiam). Claims brought
under the Rehab Act are analyzed under the same framework as the ADA, and,
thus, need not be addressed separately. Cash v. Smith, 231 F.3d 1301, 1305 (11th
Cir. 2000).
The pre-amendment ADA defines “disability” as “(A) a physical or mental
impairment that substantially limits one or more of the 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(2) (2008). To prove that she is disabled
due to an impairment, a plaintiff must prove that the impairment, as personally
suffered by her in that particular case, substantially limits a major life activity.
Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 & n.3 (11th Cir. 1996)
(citing 29 C.F.R. § 1630.2(j)). A major life activity can be, inter alia, working and
walking. 29 C.F.R. § 1630.2(i) (2008); see Rossbach, 371 F.3d at 1357 (listing
major life activities).
The pre-ADAAA EEOC regulations state:
The term substantially limits means 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
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training, skill and abilities. The inability to perform a single,
particular job does not constitute a substantial limitation in the major
life activity of working.
29 C.F.R. § 1630.2(j)(3)(i) (2008). The EEOC regulations also list the factors to
be considered in determining whether an individual’s impairment is substantially
limiting, including: “(i) [t]he nature and severity of the impairment; (ii) [t]he
duration or expected duration of the impairment; and (iii) [t]he permanent or long
term impact, or the expected permanent or long term impact of or resulting from
the impairment.” 29 C.F.R. § 1630.2(j)(2) (2008). We have held that a plaintiff
who performs “moderately below average” in a life activity is not disabled under
the ADA. See Rossbach, 371 F.3d at 1358–59.
In Rossbach, the plaintiffs suffered from a variety of impairments, including
significant knee injuries, and one plaintiff suffered from a herniated disc and high
blood pressure. Id. at 1357–58. The plaintiffs alleged that they were limited in the
major life activities of walking, sitting, standing, and sleeping, and that they could
not perform those activities for extended periods of time. Id. at 1358–59.
However, the plaintiffs did not provide evidence that the described afflictions
were any worse than those suffered by many adults, and we held that the district
court did not err in finding that the plaintiffs were not substantially limited in the
activities of walking, sitting, standing, and sleeping. Id. at 1359.
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A plaintiff may prove that she is a disabled person because the defendant
regarded her as being disabled if she
(1) has an impairment that does not substantially limit a major life
activity, but is treated by an employer as though it does; (2) has an
impairment that limits a major life activity only because of others’
attitudes towards the impairment; or (3) has no impairment
whatsoever, but is treated by an employer as having a disability as
recognized by the ADA.
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 n.2 (11th Cir. 1998) (citing
29 C.F.R. § 1630.2(l)). To prevail under this theory, a plaintiff must show that the
perceived disability involved a major life activity, and that the perceived disability
is substantially limiting and significant. Sutton v. Lader, 185 F.3d 1203, 1208
(11th Cir. 1999). Because “substantially limiting” requires the plaintiff to allege
that she is unable to work in a broad class of jobs, a plaintiff alleging that she was
regarded as disabled would need to allege that her disability was regarded as
preventing her from performing a broad class of jobs. See 29 C.F.R. §
1630.2(j)(3)(i) (2008). “The mere fact that an employer is aware of an employee’s
impairment is insufficient to demonstrate that the employer regarded the employee
as disabled,” and “[a]n employee who is perceived by her employer as having only
a temporary incapacity to perform the essential functions of the job is not
perceived as ‘disabled.’” Sutton, 185 F.3d at 1209. “A temporary inability to
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work while recuperating from surgery is not such a permanent or long-term
impairment and does not constitute evidence of a disability covered by the [Rehab]
Act.” Id.
As to the third element needed to establish a prima facie case, a qualified
individual is unlawfully discriminated against if the employer does not make
reasonable accommodations for the disability, unless such an accommodation
would impose an undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A)
(2008). An accommodation is “reasonable,” and, thus, required by the ADA, only
if it enables the employee to perform the essential functions of the job. Lucas v.
W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). The plaintiff bears
the burden of identifying a reasonable accommodation that would allow a
qualified individual to perform the job, and an employer is not required to
accommodate an employee in any manner in which the employee desires. Stewart
v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285–86 (11th Cir.
1997). The regulations governing the ADA provide that, to determine the
appropriate reasonable accommodation, it may be necessary for an employer “to
initiate an informal, interactive process with the qualified individual with a
disability in need of an accommodation” to identify the person’s limitations and
possible accommodations. 29 C.F.R. § 1630.2(o)(3) (2007). In Stewart, we held
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that there could be no liability under the ADA where the employer did not obstruct
the informal interactive process, made reasonable efforts to communicate with the
employee and to provide accommodations based on the information it possessed,
and where the employee’s actions caused the breakdown in the interactive process.
Stewart, 117 F.3d at 1287. Moreover, the employee failed to engage in the
interactive process because she did not give the employer any substantive reasons
as to why the proffered accommodations were unreasonable, but instead, simply
demanded that the employer grant her demands. Id. at 1286–87.
We have not addressed the availability of a claim for a hostile work
environment under either the ADA or the Rehab Act. Where a plaintiff presents a
claim based on harassment by a supervisor, she must establish that: (1) she
belongs to a protected group; (2) she has been subjected to unwelcome
harassment; (3) the harassment was based on a protected characteristic; (4) the
harassment was sufficiently severe or pervasive to alter the terms and conditions
of employment and, thus, creates a discriminatorily abusive work environment;
and (5) the employer is responsible for that environment under a theory of either
direct or vicarious liability. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th
Cir. 1999) (en banc) (involving Title VII). With regard to whether the harassment
is severe or pervasive, we have held that several instances of racially derogatory
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slurs, extending over a period of more than two years, were too sporadic and
isolated to establish that the employers’ conduct was so objectively severe or
pervasive as to alter the terms and conditions of the plaintiff’s employment.
McCann v. Tillman, 526 F.3d 1370, 1378–79 (11th Cir. 2008). Alternatively, we
have held that 15 incidents of sexual harassment in four months were not
infrequent, and were sufficiently severe or pervasive to constitute sexual
harassment. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501,
509 (11th Cir. 2000).
Section 12203(a) of Title 42 of the U.S. Code states: “[n]o person shall
discriminate against any individual because such individual has opposed any act or
practice made unlawful by this chapter or because such individual made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this chapter.” 42 U.S.C. § 12203(a) (2008). We assess ADA
retaliation claims under the same framework used for Title VII retaliation claims.
Stewart, 117 F.3d at 1287. To establish a prima facie case of retaliation, “a
plaintiff must show (1) a statutorily protected expression; (2) adverse employment
action; and (3) a causal link between the protected expression and the adverse
action.” Id. We have recognized that “[a] decision maker cannot have been
motivated to retaliate by something unknown to him.” Brungart v. BellSouth
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Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). The general rule is that
close temporal proximity between the protected activity and the adverse
employment action is sufficient circumstantial evidence to create a genuine issue
of fact as to causation, except that temporal proximity alone is insufficient to
create a genuine issue of fact as to causation where it is unrebutted that the
decision maker did not have knowledge that the employee engaged in protected
activity. Id.
Once a prima facie case of retaliation is established, the burden then shifts
to the employer to present legitimate, non-discriminatory reasons for its actions.
Stewart, 117 F.3d at 1287. If the employer offers legitimate reasons for its action,
the plaintiff must then demonstrate that the proffered explanation is a pretext for
retaliation. Id. We have refused to address a plaintiff’s retaliation claims based on
an employer’s refusal to accommodate her where the described acts “relate directly
to her ‘reasonable accommodation’ discrimination claim, not her retaliation
claim.” Id. at 1288. As discussed above, a plaintiff cannot prove that a reason is a
pretext for discrimination unless she shows both that the reason was false, and that
discrimination was the real reason. Hicks, 509 U.S. at 515, 113 S. Ct. at 2752. A
plaintiff must meet the proffered reason “head on and rebut it.” Chapman, 229
F.3d at 1030.
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The pursuit and receipt of SSDI benefits does not automatically estop the
recipient from pursuing an ADA claim. Cleveland, 526 U.S. at 797, 119 S. Ct. at
1600. However, an ADA plaintiff may not ignore her SSDI contention that she
was too disabled to work, but “must explain why that SSDI contention is
consistent with her ADA claim that she could perform the essential functions of
her previous job, at least with reasonable accommodation.” Id. at 798, 119 S. Ct.
at 1600 (internal quotation marks omitted). Where the plaintiff merely applied for
but was not awarded SSDI benefits, any inconsistency in the theory of the claims
is “of the sort normally tolerated by our legal system.” Id. at 805, 129 S. Ct. at
1603.
As an initial matter, Gilliard does not argue on appeal that the magistrate
judge erred in finding that her ADA and Rehab Act claims for monetary relief
against GDC and the individual defendants in their official capacities were barred
by the Eleventh Amendment, and, thus, she has abandoned those claims and only
her claims for prospective injunctive relief under the ADA and Rehab Act remain.
Because the Social Security Administration determined that Gilliard was not
disabled within the meaning of the Social Security Act, to the extent that she seeks
prospective relief, she is not estopped from pursuing her ADA and Rehab Act
claims.
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With regard to whether Gilliard established a prima facie case of disability
discrimination, she did not present more than a scintilla of evidence establishing
that her physical or mental conditions were severe, long-term, or permanent.
Moreover, she did not provide evidence indicating that her difficulties walking,
sitting, standing, concentrating, and thinking were any worse than similar
afflictions suffered by many adults. To the contrary, she stated in her deposition
that her conditions did not affect her ability to perform her job. Further, Gilliard
was not regarded as substantially limited in a broad range of jobs, nor as having a
permanent disability, and, thus, she was not “regarded as” disabled by the
defendants. Accordingly, Gilliard was not “disabled” within the meaning of the
ADA, and she cannot establish a prima facie case with regard to her disparate
treatment or failure-to-accommodate claims. Similarly, assuming her claims of
hostile work environment are cognizable under the ADA and Rehab Act, she
could not establish that she was a member of a protected class.
Even assuming that Gilliard established a prima facie case with regard to
her disparate-treatment claim, the defendants proffered legitimate,
nondiscriminatory reasons for her reassignment or demotion, and she failed to
establish that the reasons were false, or that the true reason was discrimination.
With regard to her failure-to-accommodate claims, Gilliard did not include her
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request to wear sneakers in her amended complaint, and the magistrate properly
did not consider that claim. Gilliard did not establish that her requested
accommodations of an office and a parking space were “reasonable” within the
meaning of the ADA. With regard to her request for a four-day workweek, the
defendants engaged in the interactive process and made reasonable efforts to
communicate with Gilliard and to provide accommodations based on the available
information. Gilliard caused a breakdown in that process where she failed to
provide any medical documentation outlining her work limitations or any
substantive reason explaining why the proposed alternative accommodation was
unreasonable.
With regard to Gilliard’s hostile-work-environment claim, even assuming it
is cognizable and that she was a member of a protected group due to her alleged
disability, the alleged harassment by Smith lasted for only one week in her nearly
11-month employment with GDC, and, thus, was not sufficiently severe or
pervasive as to alter the terms and conditions of her employment. To the extent
that Gilliard argues that the incident in which she was allegedly locked in Smith’s
office also establishes a claim of hostile work environment, even assuming that the
incident constitutes actionable harassment, we conclude it was not based on a
protected characteristic, and she could not establish the third element of her claim.
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Finally, with regard to Gilliard’s retaliation claims, even assuming that the
MOC or her reassignment or demotion constituted adverse employment actions,
there could be no causal connection between those actions and statutorily
protected activity because those acts occurred before she filed an EEOC charge.
With regard to the requirement that she sign in and out, and with regard to her
termination, even assuming that she could establish a prima facie case of
retaliation, she did not demonstrate that the defendants’ proffered reasons were not
the “real” reasons for those employment actions or that the real reason was
discriminatory animus against her. Accordingly, we conclude that the magistrate
judge correctly found that the defendants were entitled to summary judgment as to
Gilliard’s ADA and Rehab Act claims.
III.
Finally, Gilliard argues that Smith and Shepherd violated her right to
confidentiality under the ADA, FMLA, and Rehab Act, by failing to maintain
Gilliard’s medical information separately and leaving the files unattended on a
receptionist’s desk. Gilliard argues that Schweiger, East, and Poitevint allowed
ten people to have access to Gilliard’s medical information. Additionally, the
individual defendants intentionally failed to specify what medical information they
required, which caused Gilliard to disclose her entire medical record.
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As discussed above, we review a decision to grant summary judgment de
novo, summary judgment is appropriate where there is no genuine issue as to any
material fact and the movant is entitled to judgment as a matter of law, and a mere
scintilla of evidence is insufficient to establish that a reasonable jury could find in
the non-moving party’s favor. Vessels, 408 F.3d at 767; Brooks, 446 F.3d at 1162.
The ADA restricts an employer’s ability to make medical examinations or
inquiries that relate to an applicant’s disability status. 42 U.S.C. § 12112(d)
(2008). Pursuant to § 12112(d)(4)(A) of the ADA,
[a] covered entity shall not require a medical examination and shall
not make inquiries of an employee as to whether such employee is an
individual with a disability or as to the nature or severity of the
disability, unless such examination or inquiry is shown to be
job-related and consistent with business necessity.
42 U.S.C. § 12112(d)(4)(A).
In Watson v. City of Miami Beach, 177 F.3d 932, 934 (11th Cir. 1999), the
appellant, a police officer, exhibited behavior issues on the job, and after an
incident at a hospital where he refused to undergo a department-wide tuberculosis
test, which required disclosing his HIV status, the department put Watson on
unpaid leave and required that he submit to a fitness-for-duty evaluation. We held
that “[i]n any case where a police department reasonably perceives an officer to be
even mildly paranoid, hostile, or oppositional, a fitness-for-duty examination is
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job related and consistent with business necessity.” Id. at 935. Based mainly on
the nature of Watson’s employment as an armed police officer, and his history of
apparent overreaction and paranoia, we concluded that no rational jury could find
that the City acted improperly by requiring him to undergo a fitness-for-duty
evaluation. Id.
We have not yet addressed whether a plaintiff must be disabled to bring a
cause of action pursuant to § 12112(d)(4). Id. (declining to address the issue
because “the fitness for duty and tuberculosis examinations were job-related and
consistent with business necessity”). We have, however, held that in the context
of a medical inquiry made before an employer extended a job offer to an
individual, a plaintiff “has a private right of action under 42 U.S.C. § 12112(d)(2),
irrespective of his disability status,” but that an employee who does not have a
disability must also show damages caused by the ADA violation. Harrison v.
Benchmark Elec. Huntsville, Inc., 593 F.3d 1206, 1214, 1216–17 (11th Cir. 2010).
Information obtained through a permissible medical inquiry regarding the
medical condition or history of an employee must be collected and maintained on
separate forms and in separate medical files. 42 U.S.C. § 12112(d)(3)(B), (4)(C)
(2008). Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of the employee and necessary accommodations.
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42 U.S.C. § 12112(d)(3)(B)(i), (d)(4)(C) (2008). However, when an employee
voluntarily discloses information to the employer, rather than providing it to the
employer in response to a permissible inquiry or examination, the employee
cannot establish an unlawful disclosure under the ADA. Cash, 231 F.3d at
1307–08.
Because Gilliard failed to provide more than a scintilla of evidence to
support her allegations that the defendants breached the confidentiality of her
medical records or made overly broad requests that caused her to release her entire
medical record, we conclude that the magistrate judge correctly found that the
defendants were entitled to summary judgment as to her confidentiality claims.
IV.
For the aforementioned reasons, we affirm the magistrate judge’s grant of
summary judgment in favor of the defendants.
AFFIRMED.
BARKETT, Circuit Judge, concurs in the result.
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