Shannon v. Postmaster General of United States Postal Service , 335 F. App'x 21 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 9, 2009
No. 08-16827 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-81301-CV-WJZ
RICHARD SHANNON,
Plaintiff-Appellant,
versus
POSTMASTER GENERAL OF UNITED STATES
POSTAL SERVICE,
John E. Potter,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 9, 2009)
Before BIRCH, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
This case stems from alleged discrimination and retaliation against Plaintiff-
Appellant Richard Shannon by his employer, the United States Postal Service (the
“Postal Service”). The district court granted summary judgment in favor the Postal
Service. Shannon appeals, arguing that: (1) he established a prima facie case of
discrimination under the Rehabilitation Act; (2) he established a prima facie case
of retaliation under the Rehabilitation Act; and (3) the district court erred in
excluding certain evidence. For the reasons set forth below, we affirm the order of
the district court.
I. Facts and Background 1
Shannon was employed as a building equipment mechanic (“BEM”) at the
Postal Service’s Processing and Distribution Center in West Palm Beach, Florida.
In 1999, Shannon had a heart attack while at work. Following his heart attack,
Shannon’s cardiologist certified that Shannon was “fit for light duty,” but, among
other things, was fully restricted from lifting more than ten pounds, pulling,
pushing, carrying, and climbing. The manager of the Building Maintenance Unit,
Carl Powell, was aware of these limitations. Shannon returned to work, where he
was placed on “light duty status” and every thirty days he was required to submit a
1
Because this case is an appeal from the grant of summary judgment, we recite the facts
in the light most favorable to the non-movant, Shannon. Butler v. Ala. Dep’t of Transp., 536
F.3d 1209, 1212 n.1 (11th Cir. 2008).
2
formal request for permission to continue his light duty status. When he stopped
submitting these forms, he relied on co-workers to assist him with strenuous duties.
In September 2000, Shannon submitted a form indicating that he was no longer
restricted from engaging in ordinary activity, but should avoid strenuous activity.
In early 2003, Shannon collapsed at work and was transported to the hospital.
Following this incident, Shannon submitted medical forms indicating substantially
the same restrictions on lifting, pushing, and pulling as those prescribed by his
cardiologist in 1999.
In 2004, Shannon filed two complaints with the Equal Employment
Opportunity Commission (“EEOC”), alleging discrimination because his
supervisor instructed him to provide medical documentation in support of his
request for sick leave and the Postal Service changed his sick leave to annual leave.
In early 2005, John Gesswein was hired as Shannon’s new immediate supervisor.
On or about February 24, 2005, Gusswein informed Shannon that on February 28
Shannon would be assigned to“travel detail” because a co-worker would be retiring
from that position in July. Under this role, Shannon’s job description would still
include performing maintenance and repair tasks, but would require traveling to
various remote Postal Service facilities in the West Palm Beach area.
Shannon began his new traveling maintenance position on February 28,
3
2005, but on March 1, Shannon informed Gesswein that he had certain medical
restrictions and could not perform the work required by the travel detail without
exceeding those restrictions. Shannon resumed work at his previous assignment on
March 8. On March 14, Gesswein submitted a written request for Shannon to
provide documentation substantiating his physical restrictions within ten days.
Shannon did not comply with this request and contacted the EEOC. On May 2,
Gesswein requested that Shannon submit the requested documentation within two
days, explaining that such documentation was necessary for the Postal Service to
ascertain his fitness for duty and that if Shannon did not submit the information as
requested, he would be returned to full-duty status with no medical restrictions.
On the same day, Gesswein offered Shannon a job modification to a clerk position
that had the same benefits, hours, and salary, but did not require heavy lifting or
other physically-exhausting tasks. Shannon signed the modification “under
protest.” Shannon never submitted the medical documentation and took sick leave
before beginning the clerk position. He never returned to the Postal Service.
Shannon filed his third and fourth EEOC complaints on May 162 and July 7,
2005, alleging that the Postal Service discriminated against him, based on his
disability and in retaliation for his prior complaints, by moving him to the travel
2
Shannon alleges that this complaint was filed in March, however, the record indicates
that he contacted the EEOC in March, but he did not file a formal complaint until May.
4
detail position, ordering him to provide medical documentation within ten days,
and “forcing” him to sign a modified job offer.
Shannon thereafter brought the instant suit under the Rehabilitation Act of
1973 (the “Rehabilitation Act”), 20 U.S.C. § 791, et seq., alleging that he was
denied reasonable accommodations for his purported disabilities and was retaliated
against for filing complaints with the EEOC, in connection with his purported
disabilities.3 Following a motion by the Postal Service, the district court issued an
order finding that several of Shannon’s exhibits were inadmissible and that the
Postal Service was entitled to summary judgment on both of Shannon’s claims.
Shannon now appeals the evidentiary rulings and the grant of summary
judgment on the reasonable accommodations and retaliation claims.
II. Discussion
A. Discrimination and Retaliation Claims
1. Standard of Review
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the non-movant. Skrtich v. Thornton,
280 F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is appropriate if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
3
Shannon also asserted a constructive discharge claim, but this claim was dismissed by
the district court and Shannon does not now challenge this dismissal on appeal.
5
with the affidavits, if any, show there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).
2. Discrimination Claim
“The [Rehabilitation] Act prohibits federal agencies from discriminating in
employment against otherwise qualified individuals with a disability.” Mullins v.
Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); see also 29 U.S.C. §§ 791(g),
794(a). To establish a prima facie case of discrimination under the Rehabilitation
Act, the plaintiff must show that he was: (1) disabled or perceived to be disabled;
(2) a qualified individual; and (3) discriminated against on the basis of his
disability. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).
An individual is “disabled” if he (A) has a physical or mental impairment
that substantially limits one or more of his major life activities, (B) has a record of
such an impairment, or (C) is regarded by his employer as having such an
impairment. Cash, 231 F.3d at 1305; see also 42 U.S.C. § 12102(2).4 Shannon,
citing the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122
Stat. 3553 (2008), contends that he established the first element of a prima facie
4
The standards for liability under the Rehabilitation Act serve as precedent for cases
under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12102, and vice versa. See
Cash v. Smith, 231 F.3d 1301, 1305 n.2 (11th Cir. 2000).
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case of discrimination because he was unable to lift and lifting is a major life
activity. Even assuming arguendo that lifting is a major life activity, however,
Shannon has failed to establish that he is a “qualified individual.”5
A “qualified individual” is one “who, with or without reasonable
accommodation, can perform the essential functions of the employment position.”
42 U.S.C. § 12111(8); see also Onishea v. Hopper, 171 F.3d 1289, 1301 (11th Cir.
1999). “Whether a function is essential is evaluated on a case-by-case basis by
examining a number of factors.” Davis v. Florida Power & Light Co., 205 F.3d
1301, 1305 (11th Cir. 2000). Accommodations are “reasonable” if they will allow
the employee to perform the essential functions of his job. LaChance v. Duffy’s
Draft House, 146 F.3d 832, 835 (11th Cir. 1998); see 42 U.S.C. § 12111(9) (listing
examples of reasonable accommodations, including “job restructuring, part-time or
modified work schedules, [and] reassignment to a vacant position”). “An
accommodation is not reasonable if it either [1] imposes undue financial and
administrative burdens on a grantee or [2] requires a fundamental alteration in the
nature of the program.” Schwarz v. City of Treasure Island, 544 F.3d 1201, 1220
5
The ADAAA changes the definition of major life activities to include lifting. This
amendment became effective January 1, 2009, after the district court issued its order granting
summary judgment in the instant case. This court has not yet issued a published opinion
addressing the potential retroactive effect of the ADAAA, and need not do so here because
Shannon has not established that he is a “qualified individual.”
7
(11th Cir. 2008) (quotation marks, alteration, and citations omitted). A qualified
individual with a disability is not entitled to the accommodation of his choice, but
only to a reasonable accommodation. Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997). The plaintiff has the
burden of proving that an accommodation is reasonable. Willis v. Conopco, Inc.,
108 F.3d 282, 385 (11th Cir. 1997).
Shannon has not shown that he is a qualified individual because he has not
shown that, with reasonable accommodations, he could perform the essential
functions of his job. A sworn statement by Gesswein explained that the BEM job
description included “the ability to perform arduous exertion including the
intermittent lifting and carrying of heavy tools, tool boxes, and equipment on level
surfaces and up ladders and stairways.” Shannon admitted as much during his
deposition when he answered “yes” to questions such as whether “the physical
requirements [of a BEM] would include carrying heavy pieces of equipment.” The
Postal Service was “not required to transform the position into another one by
eliminating functions that are essential to the nature of the job as it exists.” Lucas
v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001). Moreover,
Shannon has not presented any reasonable accommodations that would enable him
to perform the essential functions of his position. Shannon argues that he could
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ask other employees do the lifting for him, as he did in the period following his
heart attack. This is not an accommodation of the sort identified in this court’s
Rehabilitation Act and ADA jurisprudence, but rather a re-delegation of the
essential attributes of Shannon’s job description. See Holbrook v. City of
Alpharetta, Ga., 112 F.3d 1522, 1528 (11th Cir. 1997) (an employer is not required
to reallocate essential functions).
Because Shannon has not presented evidence showing he is a “qualified
individual” within the meaning of the Rehabilitation Act, the district court did not
err in granting summary judgment on his discrimination claim.
3. Retaliation Claim
The Rehabilitation Act incorporates the ADA’s anti-retaliation provision,
see 29 U.S.C. §§ 791(g), 793(d), 794(d), which provides, “[n]o person shall
discriminate against any individual because such individual has opposed any act or
practice made unlawful by this chapter.” 42 U.S.C. § 12203(a). This
anti-retaliation provision is similar to Title VII’s prohibition on retaliation. See
Stewart, 117 F.3d at 1287. Accordingly, this court assesses retaliation claims
pursuant to the Retaliation Act under the same framework used for Title VII
retaliation claims. See id.To establish a prima facie case of retaliation a plaintiff must show that:
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(1) he engaged in statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there was some causal relationship between the two
events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997). “[A] plaintiff
must show that a reasonable employee would have found the challenged action
materially adverse.” Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006). A materially adverse action is one that “well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.” Id.(internal quotation and citation omitted). “To establish a causal connection, a
plaintiff must show that the decision-makers were aware of the protected conduct
and that the protected activity and the adverse action were not wholly unrelated.”
Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000) (quotations and
alterations omitted). “The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case uniformly hold that
the temporal proximity must be ‘very close.’” Clark County School Dist. v.
Breeden, 532 U.S. 268, 273 (2001). Thus, in the absence of other evidence tending
to show causation, if there is a substantial delay between the protected expression
and the adverse action, the complaint of retaliation fails as a matter of law.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
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In this case, both parties concede that Shannon engaged in a statutorily
protected expression, and thus we need only consider whether Shannon has
demonstrated the existence of an adverse action and some causal relationship
between the action and statutorily protected expression. Shannon alleges that
Gesswein’s assignment of Shannon to travel detail, request for additional medical
forms within an unreasonably short period of time, threat to return Shannon to full-
duty status, and transfer of Shannon to a clerk’s position, all constituted adverse
action related to his protected expression. We disagree.
Shannon has not demonstrated the existence of an adverse action. First,
even though Shannon alleges that the transfer to travel detail was an adverse
action, there was no reason for Gesswein to retaliate against him, considering that
these first two complaints related to grievances unrelated to Gesswein and pre-
dated Gesswein’s arrival. Second, Gesswein did not give Shannon an
unreasonably short amount of time to obtain the required medical forms because,
even though Gesswein gave a ten-day deadline, the deadline was not enforced and
Gesswein asked Shannon for the requested forms two months later, but Shannon
never provided them. Third, it is not reasonable to infer from Gesswein’s threat to
return Shannon to full-duty for failing to provide medical updates that Gusswein
was retaliating. Because Shannon refused to provide medical updates on his
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limitations, it was reasonable for Gesswein to consider removing Shannon’s
restrictions. Fourth, Shannon alleges that even though the clerk’s position entailed
less physical labor and had the same salary, he would lose certain privileges, such
as the ability to “bid” for particular vacation days based on his seniority. Shannon,
however, has not provided any documentation in support of this assertion.
Shannon has also failed to establish any causal link between the alleged
adverse actions and his protected expression. Shannon filed his first two
complaints in March and November 2004, months before any of these alleged
adverse actions, the first of which took place in February 2005. See Id. (“A three
to four month disparity between the statutorily protected expression and the
adverse employment action is not enough.”). Moreover, Shannon filed his last two
complaints after the alleged adverse actions, thus casting further doubt on whether
these actions are of the sort that “might have dissuaded a reasonable worker from
making . . . a charge of discrimination.” White, 548 U.S. at 68.
Shannon has failed to establish the existence of an adverse employment
action. As such, the district court did not err in granting summary judgment on the
retaliation claim.
B. Evidentiary Rulings
Shannon’s final argument is that the district court abused its discretion by
12
excluding Exhibits C (Powell’s Affidavit) and D (Powell’s statement regarding
Shannon’s application for disability benefits).6
“We review a district court’s rulings on the admissibility of evidence for
abuse of discretion and will reverse only if the moving party establishes a
substantial prejudicial effect.” Morgan v. Family Dollar Stores, Inc., 551 F.3d
1233, 1281 n.75 (11th Cir. 2008). As the district court noted, these exhibits, which
Shannon submitted in connection with his opposition to the Postal Service’s
motion for summary judgment, failed to comply with federal and local
authentication requirements. See Fed. R. Civ. P. 56(e); Fed. R. Evid. 901(a); S.D.
Fla. L.R. 7.5.B. In any event, Shannon has failed to establish any substantial
prejudice because the district court nonetheless discussed the substance of these
exhibits and noted that they did not alter the disposition of the order.
The district court, therefore, did not abuse its discretion by excluding
Exhibits C and D.
III. Conclusion
For the reasons set forth, the rulings of the district court are hereby affirmed.
AFFIRMED.
6
Shannon does not challenge the exclusion of Exhibits A, G, and H. Thus, he has
abandoned any argument that the court improperly excluded these exhibits. See Rowe v.
Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998).
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