Michael Banim v. State of Florida Department of Business and Professional Regulation

Case: 16-15401 Date Filed: 05/17/2017 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 16-15401
Non-Argument Calendar
________________________

D.C. Docket No. 4:15-cv-00454-RH-CAS

MICHAEL BANIM,

Plaintiff-Appellant,

versus

STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL
REGULATION,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Florida
________________________

(May 17, 2017)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
Case: 16-15401 Date Filed: 05/17/2017 Page: 2 of 7

Michael Banim appeals from the district court’s grant of summary judgment

in favor of his former employer, the State of Florida Department of Business and

Professional Regulation (“Department”), in his employment discrimination and

retaliation suit under the Rehabilitation Act, 29 U.S.C. § 794, and the Florida Civil

Rights Act, Fla. Stat. § 760.10. Banim argues that because the Department

rendered its accommodation for his physical impairment unreasonable by requiring

burdensome daily activity reports (“DARs”), the district court erred when it found

the Department sufficiently accommodated his disability. Next, Banim argues the

district court erred when it found that the DAR requirement was not a pretext for

discrimination. Finally, Banim argues the district court erred because it failed to

consider the evidence of pretext when it granted summary judgment on his

retaliation claim. 1

Banim failed to show the Department refused to accommodate his disability,

or the Department discriminated against him by requiring him to complete DARs.

Finally, Banim failed to show the Department terminated him in retaliation for

filing a discrimination charge rather than the legitimate business reason of

1
Before the district court, Banim also alleged age discrimination. However, he consented to
dismissal of that claim and it is not at issue on appeal.
2
Case: 16-15401 Date Filed: 05/17/2017 Page: 3 of 7

insubordination. Therefore, we affirm2 the district court’s grant of summary

judgment on all claims.

Banin failed to show the Department refused to accommodate his disability.

Discrimination claims brought under the Rehabilitation Act are governed by the

same standards as those brought under the Americans with Disabilities Act

(“ADA”), and cases decided under one act are precedent for cases decided under

the other. 29 U.S.C. § 794(d); see Cash v. Smith, 231 F.3d 1301, 1305 & n.2 (11th

Cir. 2000). Similarly, discrimination claims under the FCRA are interpreted

pursuant to federal ADA case law. Fla. Stat. § 760.10(1)(a); see Ross v. Jim

Adams Ford, Inc., 871 So. 2d 312, 314 (Fla. Dist. Ct. App. 2004).

An employer can unlawfully discriminate against a disabled employee if it

does not reasonably accommodate the disability; however, an employer need not

accommodate a disability if it imposes undue hardship on the employer. Stewart v.

Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). A

qualified employee is “not entitled to the accommodation of [his] choice, but only

to a reasonable accommodation.” Id. at 1285–86. An accommodation is

2
We review a district court’s grant of summary judgment de novo. Weeks v. Harden Mfg. Corp.,
291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is appropriate when the evidence,
viewed in the light most favorable to the nonmoving party, presents no genuine issue of material
fact and compels judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
3
Case: 16-15401 Date Filed: 05/17/2017 Page: 4 of 7

“reasonable” if it allows the employee to perform the essential functions of the job.

Lucas v. W.W. Gainger, Inc., 257 F.3d 1249, 1259–60 (11th Cir. 2001).

Here, the evidence showed that the Department reasonably accommodated

Banim’s disability by allowing him to work from home. Additionally, the

Department reasonably enforced the same DAR requirement for Banim that it

enforced for other employees under similar circumstances. No evidence exists that

Banim could not comply with the requirement, as he never attempted to comply.

Therefore, the district court did not err when it granted summary judgment on his

reasonable accommodation claim.

II.

The district court did not err by finding Banim failed to show the DAR

requirement was pretext for discrimination. We analyze Rehabilitation Act

discrimination claims under the McDonnell Douglas burden-shifting analysis

applied to Title VII employment discrimination claims. 3 See Stutts v. Freeman,

694 F.2d 666, 669 (11th Cir. 1983).

When analyzing pretext, the factfinder must determine whether the

employer’s proffered reasons were “a coverup for a . . . discriminatory decision.”

3
Under that framework, if a plaintiff-employee first establishes a prima facie case of
discrimination, and the defendant articulates a legitimate reason for its employment action, the
plaintiff must then offer evidence that the reason is pretextual. See Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004). If the plaintiff fails to show pretext, we will affirm the
grant of summary judgment on that ground. EEOC v. Total Sys. Servs., 221 F.3d 1171, 1177
(11th Cir. 2000).
4
Case: 16-15401 Date Filed: 05/17/2017 Page: 5 of 7

Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). Considering all the

evidence, the court must ascertain whether the plaintiff sufficiently cast doubt on

the defendant’s proffered non-discriminatory reasons to allow a reasonable

factfinder to find the defendant’s proffered “legitimate reasons were not what

actually motivated its conduct.” Silvera v Orange Cnty. Sch. Bd., 244 F.3d 1253,

1258 (11th Cir. 2001). In doing so, the court must evaluate whether the plaintiff

demonstrated “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 v. Plantation

Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997) (quotation

omitted).

Here, Banim failed to show enforcing the DAR requirement was pretext for

discrimination. Assuming, as the district court did, that Banim made a prima facie

showing of his different treatment than other employees, his discrimination claim

failed. The Department articulated legitimate reasons for its actions, and Banim

failed to show that the legitimate reasons were pretext for disability

discriminations. Agency-wide restructuring and cost-saving plans justified asking

Banim to relocate. The evidence showed the Department established the

telecommuting policies and DAR requirement before Banim sought an

accommodation. Differences between the DAR required of Banim and the DAR

5
Case: 16-15401 Date Filed: 05/17/2017 Page: 6 of 7

required for other inspectors were minimal and simply based on differences in job

duties. The Department put forth legitimate, nondiscriminatory reasons for

requiring Banim to comply with those policies, and Banim presented no evidence

undermining the Department’s explanations. Therefore, the district court did not

err by granting summary judgment on the disparate treatment claim.

III.

The Department had a legitimate, non-retaliatory reason for terminating

Banim. The ADA provides that “[n]o person shall discriminate against any

individual because such individual has opposed any act or practice made unlawful

by [the ADA] or because such individual made a charge . . . under the [ADA].” 42

U.S.C. § 12203(a). The Rehabilitation Act provides the same protection. See 29

U.S.C. § 794(d).

To establish a prima facie case of retaliation, the plaintiff may show that

(1) he engaged in a statutorily protected expression, (2) he suffered an adverse

action, and (3) there was a causal link between the adverse action and his protected

expression. Lucas, 257 F.3d at 1260–61. “Once a prima facie case is established,

the burden then shifts to the defendant employer to come forward with legitimate

non-discriminatory reasons for its actions that negate the inference of retaliation.

The plaintiff must then demonstrate that it will be able to establish at trial that the

employer's proffered non-discriminatory reasons are a pretextual ruse designed to

6
Case: 16-15401 Date Filed: 05/17/2017 Page: 7 of 7

mask retaliation.” Stewart, 117 F.3d at 1287 (citation omitted). To show pretext,

the evidence must allow a reasonable factfinder to determine that the defendant’s

proffered “legitimate reasons were not what actually motivated its conduct.”

Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001) (quotation

omitted). We use implicit findings of a district court when such findings are

supported by the record and the district court’s explicit findings. See Goforth v.

Owens, 766 F.2d 1533, 1535 (11th Cir. 1985).

Here, while the district court did not explicitly find that Banim failed to

establish pretext, it implicitly did so by finding that the record showed that the

Department terminated Banim for insubordination–a legitimate, non-

discriminatory, non-retaliatory reason. See Goforth, 776 F.2d at 1535. The

evidence showed that the Department informed Banim he could be terminated for

failure to complete the DARs. Banim admitted in his deposition that he never

submitted a DAR as directed. The Department formally warned him that he could

be terminated if he did not correct his behavior. None of the evidence Banim put

forth to show pretext would have allowed a reasonable factfinder to conclude that

he was terminated for any reason other than insubordination and failure to comply

with orders. Therefore, the district court did not err by granting summary

judgment to the Department on the retaliation claim.

AFFIRMED.