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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10441
Non-Argument Calendar
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D.C. Docket No. 4:18-cv-00002-CDL
TONY KASSA,
Plaintiff-Appellant,
versus
SYNOVUS FINANCIAL CORPORATION,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(February 3, 2020)
Before WILLIAM PRYOR, GRANT, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Tony Kassa (“Plaintiff”) appeals the district court’s grant of summary
judgment in favor of Plaintiff’s former employer, Synovus,1 in his disability
discrimination and retaliation suit under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12112(a), 12203(a). In pertinent part, Plaintiff suffers
from bipolar disorder and from intermittent explosive disorder. Reversible error
has been shown; we affirm in part, vacate in part, and remand for further
proceedings.
In 2015, Plaintiff began working for Synovus as a Lead Network Support
Analyst in the Network Operation Center (“NOC”) during night and weekend
shifts. Plaintiff told his then-supervisor, Diana Young, about his disorders and that
he would sometimes get angry or upset. Plaintiff told Young that he was able to
control his anger if he took his medicine and could take a short break. Young
granted Plaintiff’s request to take a short break when he got frustrated as long as
his area was covered and he could be reached if necessary.
1
In his initial complaint, Plaintiff named “Synovus Financial Corporation” as the defendant.
After Synovus Bank asserted that “Synovus” was the proper party, the district court permitted
Plaintiff to amend his complaint to name “Synovus” as the defendant.
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In 2016 -- as part of a corporate restructuring -- Synovus’s NOC department
was outsourced to a third-party vendor, and Synovus laid off many of Plaintiff’s
NOC co-workers. Because of Plaintiff’s technical expertise, Synovus wanted to
retain Plaintiff’s employment. Plaintiff was thus transferred to the Automated
Teller Machine (“ATM”) team, which handled customer service calls about issues
with Synovus ATMs. Plaintiff believed initially that he was going to serve as a
technical resource for ATM technicians. Plaintiff later learned that his position on
the ATM team would involve answering customer service calls from both technical
and non-technical personnel.
Plaintiff expressed to his senior director and to a human resources manager
his worry that, because of his disorders, he might lose his temper while talking to
someone on the phone. Plaintiff also told his new supervisor -- Wes Mason -- that
he had “a condition that sometimes I can’t control what I say” and that it was not a
good idea to have him answering phones. Plaintiff asked Mason if Plaintiff could
take customer service calls only from technicians, work nights, work from home,
or could take a short break when he was having an episode. Plaintiff says none of
these requests were granted.
In February 2017, Plaintiff received a written reprimand from Synovus after
Plaintiff made “rude and unprofessional statements” to team members during an
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online chat session. In July 2017, Plaintiff’s employment was terminated after
Plaintiff made another rude and unprofessional comment during a customer service
call.
Plaintiff filed this civil action against Synovus, alleging that Synovus
discriminated against him by not providing him with a reasonable accommodation
for his disability. Plaintiff also alleged that Synovus retaliated against him for
complaining about disability discrimination.
The district court granted Synovus’s motion for summary judgment. The
district court concluded that Plaintiff failed to establish a prima facie case of
disability discrimination: Plaintiff had failed to show (1) that Synovus withheld a
reasonable accommodation or (2) that Synovus terminated Plaintiff’s employment
because of his disorders. The district court also concluded that Plaintiff failed to
establish a prima facie case of retaliation: he had shown no causal connection
between his protected activity and his termination. In the alternative, the district
court also determined that Plaintiff had failed to rebut Synovus’s legitimate non-
retaliatory reason for terminating Plaintiff’s employment.
We review the grant of summary judgment de novo, “viewing the evidence
and all reasonable inferences drawn from it in the light most favorable to the
nonmoving party.” Hornsby-Culpepper v. Ware,
906 F.3d 1302, 1311 (11th Cir.
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2018) (quotations omitted). Summary judgment is appropriate if there exists “no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). “A genuine factual dispute exists only if a
reasonable fact-finder could find by a preponderance of the evidence that the
plaintiff is entitled to a verdict.” Kernel Records Oy v. Mosley,
694 F.3d 1294,
1300 (11th Cir. 2012) (quotations omitted).
“Credibility determinations, the weighing of the evidence, and the drawing
of legitimate inferences from the facts” are not appropriate at the summary
judgment stage. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). To
the contrary, “[t]he evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id.
I. DISABILITY DISCRIMINATION
To establish a prima facie case of discrimination under the ADA, a plaintiff
must show that he (1) is disabled, (2) is a qualified individual, and (3) that he was
subjected to unlawful discrimination because of his disability. Holly v. Clairson
Indus., LLC,
492 F.3d 1247, 1255-56 (11th Cir. 2007). For purposes of summary
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judgment, the district court assumed that Plaintiff was both disabled and was a
qualified individual. Thus, only the third factor is at issue in this appeal.
On appeal, Plaintiff raises these challenges to the district court’s ruling on
his ADA discrimination claim: 2 (1) whether the district court erred in considering
Mason’s testimony; (2) whether answering phone calls constituted an “essential
function” of Plaintiff’s job; and (3) whether Synovus failed to provide a reasonable
accommodation to Plaintiff.
A. Mason’s Testimony
Plaintiff contends that Mason testified untruthfully and, thus, the district
court was required to discredit the entirety of Mason’s testimony. 3 During
2
To the extent Plaintiff attempts to assert that the district court should have applied the
“convincing mosaic” standard for evaluating Plaintiff’s discrimination claim, Plaintiff makes
only passing references to the “convincing mosaic” standard without argument or citation to
authority and, thus, has abandoned that argument. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim
when he either makes only passing references to it or raises it in a perfunctory manner without
supporting arguments and authority.”).
Plaintiff also failed to raise a distinct challenge to the district court’s determination that
Synovus’s termination of Plaintiff’s employment constituted no disability discrimination. That
issue is not before us in this appeal. See id.
3
In support of this argument, Plaintiff cites to N.L.R.B. v. Pittsburgh S.S. Co.,
337 U.S. 656
(1949), and to Liberty Mut. Ins. Co. v. Thompson,
171 F.2d 723 (5th Cir. 1948). These cases --
which stand for the proposition that a factfinder may reject a witness’s entire testimony if the
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Mason’s deposition, Mason testified that he did not “recall” whether Plaintiff had
told him about Plaintiff’s disorders and denied having said -- during an earlier
Georgia Department of Labor (“DOL”) unemployment hearing -- that Plaintiff had
requested accommodations. Mason later revised his testimony after listening to a
recording of the pertinent DOL hearing, which Mason said “refreshed [his]
recollection.”
First, we decline to adopt Plaintiff’s contention that the district court should
have deemed Mason an unreliable witness and discounted his entire testimony. In
deciding a motion for summary judgment, the district court is precluded from
making credibility determinations. See Anderson, 477 U.S. at 255. The district
court must instead view the record and draw all reasonable inferences in favor of
the non-moving party. Hornsby-Culpepper, 906 F.3d at 1311. “Variations in a
witness’s testimony and any failure of memory throughout the course of discovery
create an issue of credibility” that must be resolved by the trier of fact. Tippens v.
Celotex Corp.,
805 F.2d 949, 954 (11th Cir. 1986) (reversing the grant of summary
judgment where the district court assessed improperly the credibility and weight of
the evidence).
factfinder determines that a witness is not credible -- say nothing about a district court’s standard
of review when ruling on a motion for summary judgment.
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Here, the district court committed no error in considering Mason’s testimony
-- together with the entire record -- in ruling on Synovus’s motion for summary
judgment. Moreover, to the extent Mason provided inconsistent testimony, that
testimony pertained only to issues that were not in dispute: whether Plaintiff
notified Mason of his anger issues and asked for accommodations. Mason’s
testimony gave rise to no genuine dispute of material fact. Nor did the district
court engage in impermissible credibility findings with respect to Mason’s
testimony.
B. Essential Function
Plaintiff contends that the district court erred in determining that answering
customer service calls was an essential function of Plaintiff’s position on the ATM
team.
The “essential functions” of a position “are the fundamental job duties of a
position that an individual with a disability is actually required to perform.” Holly,
492 F.3d at 1257. Whether a function is “essential” is determined on a case-by-
case basis. Id. at 1258. A function may be considered “essential” if the position
exists to perform that function, a limited number of employees can perform the
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function, or if the function is highly specialized and requires expertise. 29 C.F.R. §
1630.2(n)(2). In determining whether a function is essential, the district court must
consider the employer’s judgment about the essential functions of a position,
including the testimony of an employee’s supervisor. Holly, 492 F.3d at 1257.
“[A]lthough the employer’s view is entitled to substantial weight in the calculus,
this factor alone may not be conclusive.” Id. at 1258 (quotations omitted). Other
pertinent factors to consider include (1) the amount of time the employee spends
performing the function; (2) the consequences of not requiring the employee to
perform the function; (3) the work experience of past employees in the position;
and (4) the current work experience of employees in similar jobs. Id. (citing 29
C.F.R. § 1630.2(n)(3)).
The district court committed no error in concluding that answering customer
service calls was an essential function of Plaintiff’s job on the ATM team. Mason
testified that the “core function” of the ATM team -- and Plaintiff’s chief
responsibility after transferring to the ATM team -- was to answer the phones.
And we owe the employer’s judgment “substantial weight.” See Holly, 492 F.3d
at 1258. Moreover, Plaintiff’s own testimony established that (1) answering
customer service calls was “just about all” he did in his position on the ATM team;
(2) he was one of four employees on the ATM team, each of whom was placed in a
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queue to answer calls; and (3) that Plaintiff was at times the only person available
to answer calls. In the light of this evidence, the district court determined correctly
that answering customer service calls constituted an essential function of Plaintiff’s
job.
C. Reasonable Accommodation
An employer is liable for unlawful discrimination under the ADA when the
employer fails to “mak[e] reasonable accommodations to the known physical or
mental limitations of an otherwise qualified individual with a disability” -- unless
doing so “would impose an undue hardship” on the employer. 42 U.S.C. §
12112(b)(5)(A). An accommodation is “reasonable” “only if it enables the
employee to perform the essential functions of the job.” Lucas v. W.W. Granger,
Inc.,
257 F.3d 1249, 1255 (11th Cir. 2001). The employee bears “the burden of
identifying an accommodation and demonstrating that it is reasonable.” Frazier-
White v. Gee,
818 F.3d 1249, 1255 (11th Cir. 2016).
“[A]n employer may in some circumstances need ‘to initiate an informal,
interactive process’ with a disabled employee to determine the appropriate
reasonable accommodation.” Id. at 1257 (citing 29 C.F.R. § 1630.2(o)(3)). When
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an employee fails to satisfy his burden of identifying an accommodation that
would be reasonable, however, no liability attaches to the employer for failing to
engage in an “interactive process.” Id. at 1257-58; Willis v. Conopco, Inc.,
108
F.3d 282, 285 (11th Cir. 1997) (“[W]here a plaintiff cannot demonstrate
‘reasonable accommodation,’ the employer’s lack of investigation into reasonable
accommodation is unimportant.”). 4
i. Short breaks
Plaintiff has established that his request to take short breaks was a
reasonable one. The record evidences that Plaintiff could control his anger in part
by taking short breaks, which would thus enable him to perform an essential
function of his job. While Plaintiff worked on the NOC team, Young had allowed
Plaintiff to take short breaks with positive results. Mason also testified that he
generally permits his customer-service employees to take breaks when they get
frustrated.
4
We reject Plaintiff’s argument that our decision in Willis is inapplicable to this case: Willis is
not so narrow to apply only in circumstances where the employee made no specific request for
an accommodation.
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The district court determined that Plaintiff had failed to produce evidence
showing that Mason prevented Plaintiff from taking breaks when he was frustrated.
Plaintiff testified, however, that when he transferred to Mason’s team the
accommodations provided previously by Young “all stopped.” The chief
accommodation Plaintiff received while working for Young was the ability to take
short breaks. Viewing the record and drawing all reasonable inferences in
Plaintiff’s favor, we draw the inference that Plaintiff was not permitted to take
short breaks while working for Mason. Because an employer’s failure to provide a
reasonable accommodation is itself a violation of the ADA, Synovus is unentitled
to summary judgment on this claim. Accordingly, we vacate in part the district
court’s grant of summary judgment on Plaintiff’s failure-to-accommodate
discrimination claim with respect to Plaintiff’s request to take short breaks; and we
remand for further proceedings.
ii. Remaining Requests for Accommodation
Plaintiff has failed to establish that his remaining proposed accommodations
were reasonable. Because answering customer service calls constituted an
“essential function” of Plaintiff’s position on the ATM team, Plaintiff’s request
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that he be exempted from answering all or some of those calls was not reasonable.
“[E]mployers are not required to transform [a] position into another one by
eliminating functions that are essential to the nature of the job as it exists.” Lucas,
257 F.3d at 1260.
About Plaintiff’s requests to work from home and to work at night, Mason
testified -- and nothing in the record disputes -- that Synovus’s telephone system
would not enable customer service calls to be routed to off-site employees and that
no night shift position existed on the ATM team. Given this evidence, Plaintiff has
not shown that these requests were reasonable ones. See United States EEOC v.
St. Joseph’s Hosp., Inc.,
842 F.3d 1333, 1345 (11th Cir. 2016) (“employers are
only required to provide alternative employment opportunities reasonably available
under the employer’s existing policies”); Lucas, 257 F.3d at 1257 (under the ADA,
an employer had no obligation to reassign an employee to a non-vacant position).
II. RETALIATION
The ADA prohibits employers from retaliating against an employee for
making a charge of discrimination under the ADA. 42 U.S.C. § 12203(a). To
establish a prima facie case of retaliation, a plaintiff must show that “(1) he
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engaged in a statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there was a causal link between the adverse action and
his protected expression.” Lucas, 257 F.3d at 1260.
Once a plaintiff establishes a prima facie case of retaliation, the burden shifts
to the employer to produce a “legitimate, non-discriminatory reason[]” for its
action. Stewart v. Happy Herman’s Cheshire Bridge,
117 F.3d 1278, 1287 (11th
Cir. 1997). If the employer does so, the burden shifts back to the plaintiff to show
that the employer’s proffered reason is a pretext for retaliation. Id.
In support of his claim for retaliation, Plaintiff identifies two purported
adverse employment acts: (1) Synovus’s denial of Plaintiff’s request to be exempt
from answering the phones and (2) Synovus’s termination of Plaintiff’s
employment.
Plaintiff’s first ground merely duplicates Plaintiff’s failure-to-accommodate
discrimination claim: a claim that we rejected after concluding that answering
customer service calls constituted an “essential function” of Plaintiff’s position on
the ATM team. Thus, Plaintiff’s retaliation claim on this ground also must fail.
See Lucas, 257 F.3d at 1261 (affirming summary judgment on plaintiff’s ADA
retaliation claim when plaintiff’s argument -- that his employer “took adverse
action against him by failing to reasonably accommodate him” -- “merely
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reclothe[d] [plaintiff’s] ADA discrimination claim” which the Court had already
rejected).
About Plaintiff’s second ground for retaliation, Plaintiff raises no challenge
to the district court’s alternative determination that Plaintiff failed to rebut
Synovus’s legitimate, non-retaliatory reason for terminating Plaintiff’s
employment. Accordingly, we affirm on that ground. See Sappupo, 739 F.3d at
680 (“When an appellant fails to challenge properly on appeal one of the grounds
on which the district court based its judgment, he is deemed to have abandoned any
challenge on that ground, and it follows that the judgment is due to be affirmed.”).
In sum, we vacate the district court’s entry of judgment on Plaintiff’s failure-
to-accommodate discrimination claim with respect to Plaintiff’s request to take
short breaks and remand for further proceedings on that issue. We affirm the entry
of judgment in favor of Synovus on Plaintiff’s remaining claims.
AFFIRMED IN PART, VACATED IN PART AND REMANDED.
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