Anthony McCarroll v. Somerby of Mobile, LLC

Case: 14-11040 Date Filed: 12/12/2014 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 14-11040
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-00709-CG-C

ANTHONY MCCARROLL,

Plaintiff-Appellant,

versus

SOMERBY OF MOBILE, LLC,

Defendant-Appellee.

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Appeal from the United States District Court
for the Southern District of Alabama
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(December 12, 2014)

Before JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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Anthony McCarroll, proceeding pro se, appeals from the district court’s

grant of summary judgment in favor of Somerby of Mobile, LLC (“Somerby”), in

his employment-discrimination suit based on the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12112(a), and the Family and Medical Leave Act

(“FMLA”), 29 U.S.C. § 2615(a). McCarroll argues that the record contained

sufficient evidence before the district court to preclude summary judgment. After

careful review, we affirm the judgment of the district court.

McCarroll was employed as a part-time bus driver for Somerby, a senior-

living community in Mobile, Alabama. He was terminated from that employment

on December 12, 2011, after he missed work twice without giving proper notice

that he would be absent. The two instances, the facts of which are not

meaningfully disputed, are as follows.

On November 29, 2011, McCarroll called in twenty minutes before his shift

was scheduled to begin, stating that he was “too sore to work.” According to

Somerby’s attendance policy, McCarroll was required to give at least four hours’

notice of any absence. On December 10, 2011, McCarroll was scheduled to work

from 6:15 p.m. to 11:00 p.m., and he went to Somerby at about 3:30 p.m. to tell his

supervisor that he would not be able to work his shift. Because he was unable to

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directly inform his supervisor, as required by Somerby’s attendance policy,

McCarroll instead left a message with the concierge on duty.

On the morning of December 12, 2011, Somerby executives decided to fire

McCarroll, ostensibly due to his violations of the attendance policy. McCarroll

was told of the decision at a meeting later that morning. During that same meeting,

McCarroll produced a doctor’s note recommending that he take a two-week leave

of absence “while adjustment in his treatment plan becomes effective.” The note

did not affect Somerby’s decision to terminate McCarroll’s employment.

Believing that his termination was related to his disability 1 and to his request

for medical leave, McCarroll brought this federal suit alleging violations of the

ADA and the FMLA. He also indicated that he thought Somerby fired him

because he was unwilling to work full time. The district court granted summary

judgment to Somerby on all claims.

II.

We review de novo the district court’s grant of summary judgment, viewing

all evidence and factual inferences drawn from the evidence in the light most

favorable to the non-moving party. Greenberg v. BellSouth Telecomm., Inc., 498

F.3d 1258, 1263 (11th Cir. 2007). Summary judgment is appropriate if the movant

1
While McCarroll did not allege a specific disability in his complaint, he states in his
initial brief on appeal that he suffers from a “mental health disability,” and record evidence
indicates that he has received treatment for depression- and anxiety-related disorders. He also
states that his “back problem was a persistent disability.”
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shows that there is no genuine dispute of material fact and that he is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). We liberally construe briefs

filed by pro se litigants. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

III.

McCarroll contends that Somerby failed to accommodate his disability by

adjusting its attendance policy and excusing his absence on December 10, 2011,

based on the doctor’s note that he provided on December 12, 2011. He also asserts

that the district court erred in requiring him to prove more than that he could not

comply with Somerby’s attendance policy because of his disability.

The ADA prohibits an employer from discriminating against a “qualified

individual on the basis of disability.” 42 U.S.C. § 12112(a). To establish a prima

face case of discrimination under the ADA, a plaintiff must show that he was (1)

disabled; (2) qualified; and (3) discriminated against because of his disability. 2

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); Earl v.

Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000).

“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.”

Lucas, 257 F.3d at 1255; see 42 U.S.C. § 12112(b)(5)(A). An accommodation is

2
The burden-shifting analysis of Title VII employment-discrimination claims applies to
the ADA. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007).
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reasonable only if it would allow the employee to perform the essential functions

of the job. Lucas, 257 F.3d at 1255. But “the duty to provide a reasonable

accommodation is not triggered unless a specific demand for an accommodation

has been made.” Gaston v. Bellingrath Gardens & Homes, Inc., 167 F.3d 1361,

1363 (11th Cir. 1999); Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997)

(“[T]he ADA provides no cause of action for ‘failure to investigate’ possible

accommodations.”)

The district court properly granted summary judgment on McCarroll’s

failure-to-accommodate claim under the ADA. McCarroll did not establish any

facts to show that he made a specific demand for an accommodation before his

supervisors decided to fire him. Instead, the uncontested facts reflect that

McCarroll did not request medical leave or a modification of Somerby’s

attendance policy until after his supervisors had already made the decision to fire

him. McCarroll’s comment to his supervisor on November 29, 2011, that he was

“too sore to work” was not specific enough to constitute a demand for a reasonable

accommodation, nor does it appear to relate to the mental disability on which the

later request for medical leave was based. Because McCarroll did not make a

specific demand for an accommodation until after the decision to fire him had been

made, Somerby is not liable for failing to accommodate McCarroll’s disability or

for failing to investigate McCarroll’s disability before making the decision to

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terminate McCarroll’s employment. See Gaston, 167 F.3d at 1364; Willis, 108

F.3d at 285.

In addition, McCarroll presented no evidence to show that his disabilities

prevented him from following Somerby’s absence-reporting policy, nor does he

explain how the accommodations of a temporary leave of absence or a more

lenient attendance policy would have allowed him to perform the job’s essential

functions. See Lucas, 257 F.3d at 1255-56 (stating that the plaintiff bears the

burden of identifying an accommodation and demonstrating its reasonableness).

Consequently, Somerby was entitled to judgment as a matter of law on

McCarroll’s failure-to-accommodate claim.

IV.

McCarroll contends that he stated claims under the FMLA because he was

denied the right to take medical leave as recommended in the doctor’s note, and

because the doctor’s note, presented the next business day after his absence, shows

that his request for FMLA leave and his termination were causally related.

The FMLA provides that “an eligible employee shall be entitled to a total of

12 workweeks of leave during any 12-month period . . . [b]ecause of a serious

health condition that makes the employee unable to perform the functions of the

position of such employee.” 29 U.S.C. § 2612(a)(1)(D). To protect the

availability of these rights, the FMLA prohibits employers from interfering with,

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restraining, or denying “the exercise of or the attempt to exercise” any rights

guaranteed under the Act. 29 U.S.C. § 2615(a)(1).

“We have recognized that § 2615(a) 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 demonstrate interference, the employee need show only that his employer

interfered with or denied him an FMLA benefit to which he was entitled, not that

the employer intended to interfere with or deny an FMLA benefit. Strickland v.

Water Works & Sewer Bd., 239 F.3d 1199, 1207-08 (11th Cir. 2001). To establish

retaliation, however, an employee must demonstrate that his employer intentionally

discriminated against him for exercising a right guaranteed under the FMLA.

Martin v. Brevard Cnty. Pub. Sch., 543 F.3d 1261, 1267-68 (11th Cir. 2008)

(“Unlike an interference claim, an employee bringing a retaliation claim faces the

increased burden of showing that his employer’s actions were motivated by an

impermissible retaliatory or discriminatory animus.” (internal quotation marks

omitted)).

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The district court properly granted summary judgment on McCarroll’s

FMLA interference claim because the record shows that Somerby made the

decision to terminate McCarroll before he requested two weeks off from work for

his medical condition. Although “a causal nexus is not an element of an

interference claim,” Somerby is not liable for FMLA interference if it

“demonstrates that it would have discharged [McCarroll] for a reason wholly

unrelated to the FMLA leave.” Spakes v. Broward Cnty. Sheriff’s Office, 631 F.3d

1307, 1309-10 (11th Cir. 2011) (internal quotation marks omitted). Here, we agree

with the district court that the timing of Somerby’s decision to fire McCarroll,

before it knew of his request for FMLA leave, shows that the termination decision

was “wholly unrelated” to his request for medical leave. See id. Nor is there

record evidence indicating that Somerby was aware that McCarroll intended to

take medical leave around the time that it made the decision to fire him.

Furthermore, McCarroll likely could not be considered an “eligible employee”

entitled to benefits under the FMLA, given that it is undisputed that Somerby had

decided to terminate McCarroll’s employment before he asked for medical leave.

For these same reasons, the district court properly granted summary

judgment on McCarroll’s FMLA retaliation claim. See Strickland, 239 F.3d at

1207. Because McCarroll has not shown a causal connection between his request

for medical leave and his termination, he cannot meet the “increased burden of

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showing that his employer’s actions were motivated by an impermissible

retaliatory or discriminatory animus.” See Martin, 543 F.3d at 1267-68.

Accordingly, the district court did not err in granting summary judgment to

Somerby on McCarroll’s FMLA claims.

Because the district court properly granted summary judgment to Somerby

on McCarroll’s claims under the ADA and FMLA, we affirm.

AFFIRMED.