USCA11 Case: 21-12003 Date Filed: 06/29/2022 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12003
Non-Argument Calendar
____________________
JULIO SEVILLANO,
Plaintiff-Appellant,
versus
BOARD OF COUNTY COMMISSIONERS, ORANGE COUNTY,
FLORIDA,
Defendant,
ORANGE COUNTY FLORIDA,
Defendant-Appellee.
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2 Opinion of the Court 21-12003
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-01461-WWB-DCI
____________________
Before WILSON, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Julio Sevillano appeals from the district court’s order grant-
ing summary judgment to his former employer, Orange County,
Florida (the “County”), 1 in his civil action alleging wrongful termi-
nation and failure to accommodate under the Americans with Dis-
ability Act of 1990 (“ADA”),
42 U.S.C. § 12101, et seq., as amended
by the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No.
110-325,
122 Stat. 3553. Sevillano argues that he timely filed his
lawsuit because, although he did not file it within 90 days of receiv-
ing one right to sue (“RTS”) letter, he did following the receipt of
a second RTS. Sevillano further argues that he was a qualified in-
dividual under the ADA because he was disabled at the time the
County terminated him, the County was aware of his disability,
and he was qualified for the park specialist position.
1 In his amended complaint, Sevillano changed the defendant’s name from the
“Board of County Commissioners, Orange County, Florida,” to “Orange
County, Florida.” For ease of reference, only the latter will be used herein.
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21-12003 Opinion of the Court 3
For ease of reference, we will address each point in turn.
I.
We review a grant of summary judgment de novo. Mayfield
v. Patterson Pump Co.,
101 F.3d 1371, 1374 (11th Cir. 1996). Sum-
mary judgment is proper if there is no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of
law.
Id. We view the evidence in the light most favorable to the
party opposing the motion. Kerr v. McDonald’s Corp.,
427 F.3d
947, 951 (11th Cir. 2006).
A civil action asserting a claim under the ADA must be
brought within 90 days after receipt of the RTS from the EEOC.
See
42 U.S.C. §§ 12117(a), 2000e-5(1); Zillyette v. Cap. One Fin.
Corp.,
179 F.3d 1337, 1339 (11th Cir. 1999). The 90 days commence
“at the time the complainant has adequate notice that the EEOC
has dismissed the charge.” Santini v. Clev. Clinic Fla.,
232 F.3d 823,
825 (11th Cir. 2000).
After the defendant contests the timely filing of a complaint,
the plaintiff bears the burden of showing they met the timely filing
requirement. Kerr, 427 F.3d at 951. Although the statutory notifi-
cation is complete only upon the actual receipt of the RTS letter,
we do not have a rule to determine whether the complainant actu-
ally received notice of the RTS. Id. at 952. Instead, we impose
upon complainants a “minimum responsibility . . . for an orderly
and expeditious resolution” of their claims, which does not extend
to a manipulable extension of time that would render the statutory
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4 Opinion of the Court 21-12003
time requirements meaningless. Id. (quoting Zillyette, 179 F.3d at
1430).
In Kerr, we stated that most cases addressing receipt of the
RTS letter deal with situations where the RTS letter was mailed to
the complainant’s house, but the complainant did not receive it be-
cause another person signed for the letter or because they failed to
retrieve it from the Post Office. Id. There, we explained that de-
spite being on notice that her RTS letter was being mailed, Kerr did
not call to check on the status of her letter when nothing arrived
for several weeks. Id. at 953. Because she failed to assume the min-
imal responsibility to follow up on the RTS letter, she lacked the
due diligence required to timely resolve her case. Id.
We presume the complainant received the RTS letter when
he or she is unable to show that the failure to receive the letter was
in no way his or her fault. Id. at 952. Thus, we held that the com-
plainant’s actual knowledge that the EEOC terminated its investi-
gation of a claim, as evidenced by a request for an RTS letter, may
be sufficient to start the time for filing a complaint to run, within a
reasonable time after written notice of a complainant’s RTS has
been mailed. Id. at 954.
Here, there was no genuine issue of material fact as to the
circumstances surrounding the United States Postal Service’s at-
tempted delivery of Sevillano’s first RTS to his regular address,
how officials notified him of that, and how he did not retrieve the
RTS but, instead, sought and obtained a second one. We conclude,
as the district court did, that he did not meet his burden of having
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a “minimum responsibility . . . for an orderly and expeditious reso-
lution” of his ADA claim against the County, and that the County
was entitled to summary judgment on this basis.
II.
The ADA prohibits employers from discriminating against
qualified individuals because of their disability.
42 U.S.C.
§ 12112(a). We analyze ADA discrimination claims under the bur-
den-shifting framework set forth in McDonnell Douglas Corp. v.
Green,
411 U.S. 792 (1973). See Clev. v. Home Shopping Network,
Inc.,
369 F.3d 1189, 1193 (11th Cir. 2004) (considering whether the
plaintiff proved discrimination under McDonnell Douglas).
To establish a prima facie case of discrimination under the
ADA, a plaintiff must show, among other things, that he is a quali-
fied individual.
Id. If the plaintiff meets his prima facie burden, and
the defendant presents a legitimate, non-discriminatory reason for
its actions, the plaintiff must then demonstrate that the reason
given was a pretext for disability discrimination.
Id.
A “qualified individual” is a person with a disability who,
with or without reasonable accommodations, can perform the es-
sential functions of the job he holds or desires.
42 U.S.C.
§ 12111(8); Holly v. Clairson Indus., L.L.C.,
492 F.3d 1247, 1256
(11th Cir. 2007). An accommodation is reasonable and necessary
under the ADA if it enables the employee to perform the essential
functions of the job. Holly,
492 F.3d at 1256. If an individual can-
not perform the essential functions of his job, even with
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accommodation, then the individual is not qualified and is not pro-
tected by the ADA.
Id.
Essential functions are the fundamental duties of a position
that an individual with a disability is actually required to perform.
Id. at 1257. If an employer has prepared a written description of
the job duties, that description is evidence of the essential functions
of the job.
42 U.S.C. § 12111(8); Holly,
492 F.3d at 1257.
Unlawful discrimination includes a refusal by the employer
to reasonably accommodate a qualified individual unless the ac-
commodation would impose an undue hardship on the employer.
42 U.S.C. § 12112(b)(5)(a); Stewart v. Happy Herman’s Cheshire
Bridge, Inc.,
117 F.3d 1278, 1285 (11th Cir. 1997). The plaintiff,
however, bears the burden of identifying an accommodation and
showing that the accommodation would allow him to perform the
essential functions of the job in question. Boyle v. City of Pell City,
866 F.3d 1280, 1289 (11th Cir. 2017). Whether a reasonable accom-
modation can be made for an otherwise qualified individual is de-
termined by reference to that specific position.
Id. at 1288. Finally,
an employer is not required to create a new position for an em-
ployee with a disability, nor is it required to create a light-duty po-
sition for a disabled employee, nor assign an employee to a position
that is not vacant.
Id. at 1289.
Here, there was no genuine issue of material fact as to Sevil-
lano’s limitations. There was also no dispute as to whether he was
a qualified individual under the ADA, because he did not present
evidence that the functions of the park specialist position were not
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21-12003 Opinion of the Court 7
essential to that position, and evidence otherwise showed that he
could not perform the essential functions of that position. Accord-
ingly, Sevillano failed to make out a prima facie case of disability
discrimination or refusal to accommodate under the ADA, and the
district court did not err in granting summary judgment to the
County for this reason as well.
AFFIRMED.
