Belinda G. Webb v. Michael B. Donley , 347 F. App'x 443 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-10050 ELEVENTH CIRCUIT
SEPTEMBER 14, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00471-CV-D-N
BELINDA G. WEBB,
Plaintiff-Appellant,
versus
MICHAEL B. DONLEY,
Secretary of the Air Force,
Department of the Air Force,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(September 14, 2009)
Before BLACK, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Belinda G. Webb, through counsel, seeks review of the district court’s grant
of summary judgment to her former employer, the U.S. Air Force, which she sued
pursuant to the Rehabilitation Act, 29 U.S.C. § 701, et seq.1 Webb, who suffers
from Fibromyalgia and Myofascial Pain Syndrome, alleged the Air Force
discriminated against her by failing to accommodate her disability by allowing her
to work on a modified schedule. On appeal, Webb argues the district court erred in
finding that she had not raised a genuine issue of material fact with regard to
whether a modified schedule was a reasonable accommodation that would have
allowed her to fulfill the essential requirements of her position.
We review a district court’s grant of summary judgment de novo, applying
the same standards that were to be applied in the district court. Lippert v. Cmty.
Bank, Inc., 438 F.3d 1275, 1278 (11th Cir. 2006). Summary judgment is proper
under Rule 56(c), Fed. R. Civ. P., when there is no genuine issue as to any material
fact and the moving party is entitled to judgment as a matter of law. Celotex v.
Catrett, 106 S. Ct. 2548, 2552 (1986).
In a discrimination case, the complainant carries the initial burden of
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In her complaint, Webb cited only the Americans with Disabilities Act (the ADA),
42 U.S.C. § 12101, et seq. However, because Webb was a federal employee, she was not
covered under the ADA. See 42 U.S.C. § 12111(5)(B)(i). Nevertheless, she would have been
covered under the Rehabilitation Act, which is governed by the same standards as the ADA.
Sutton v. Lader, 185 F.3d 1203, 1208 n.5 (11th Cir. 1999). Because the Air Force did not raise
this issue before the district court, it is not discussed further in this opinion.
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establishing a prima facie case of discrimination. McDonnell Douglas Corp. v.
Green, 93 S. Ct. 1817, 1824 (1973). The burden then shifts to the employer to offer
a “legitimate, nondiscriminatory reason” for its decision. Id. If it does so, the
burden shifts back to the complainant to show that the employer’s proffered reason
was pretextual. Id. at 1825. In the absence of direct evidence of discrimination,
the burden-shifting analysis applies to claims under the Rehabilitation Act. See
Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001) (holding the
burden-shifting analysis applies to claims under the ADA); see also Sutton, 185
F.3d at 1208 n.5 (holding the standards that govern the ADA also apply to the
Rehabilitation Act).
To establish a prima facie case of discrimination, a plaintiff must show
(1) she has a disability, (2) she is a qualified individual, and (3) the defendant
unlawfully discriminated against her because of the disability. D’Angelo v.
ConAgra Foods, Inc., 422 F.3d 1220, 1226 (11th Cir. 2005). A qualified
individual is one with a disability who, “with or without reasonable
accommodation, can perform the essential functions of such position.” 29 C.F.R.
§ 1630.2(m). “Determining whether a particular job duty is an essential function
involves a factual inquiry to be conducted on a case-by-case basis.” Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1258 (11th Cir. 2001); see also 29 C.F.R.
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§ 1630.2(n)(3). In certain situations, daily attendance may be an essential function
of a position, but it is not always an essential function. See Jackson v. Veterans
Admin., 22 F.3d 277, 279 (11th Cir. 1994) (“Unlike other jobs that can be
performed off site or deferred until a later day, the tasks of a housekeeping aide by
their very nature must be performed daily at a specific location.”).
Reasonable accommodation means “[m]odifications or adjustments to the
work environment, or to the manner or circumstances under which the position
held or desired is customarily performed, that enable a qualified individual with a
disability to perform the essential functions of that position.” 29 C.F.R.
§ 1630.2(o)(1)(ii). We have held “prior accommodations do not make an
accommodation reasonable.” Wood v. Green, 323 F.3d 1309, 1314 (11th Cir.
2003). Part-time or modified work schedules may be reasonable accommodations.
42 U.S.C. § 12111(9)(B). However, an employer is not required to reallocate job
duties to change the functions of a job. Earl v. Mervyns, Inc., 207 F.3d 1361, 1367
(11th Cir. 2000). Thus, a request to arrive at work at any time, without reprimand,
is not a reasonable accommodation because it would change the essential functions
of a job that requires punctual attendance. Id. In order to determine an appropriate
reasonable accommodation, an informal, interactive process with the disabled
individual may be necessary. 29 C.F.R. § 1630.2(o)(3) (emphasis added).
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However, if the employee does not identify a reasonable accommodation, the
employer does not have to enter into an interactive dialogue or show undue
hardship. Earl, 207 F.3d at 1367.
Here, the Air Force presented evidence that a modified schedule was
unreasonable because presence at the work site was an essential function of
Webb’s position and allowing her to work a modified schedule would have
changed the essential functions of the job. Although the Air Force previously had
allowed Webb to work a modified schedule, the fact that an employer previously
has granted a requested accommodation does not render that accommodation
reasonable. See Wood, 323 F.3d at 1314. Because Webb did not produce any
evidence showing that she would be able to complete her job functions while
working the modified schedule, she did not raise a genuine issue of material fact
with regard to whether the modified schedule was a reasonable accommodation.
Accordingly, the district court correctly granted summary judgment to the Air
Force.
AFFIRMED.
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