William L. Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249 ( 2001 )

William L. LUCAS, Plaintiff-Appellant,
v.
W.W. GRAINGER, INC., Defendant-Appellee.
No. 00-14323.
United States Court of Appeals,
Eleventh Circuit.
July 17, 2001.
Appeal from the United States District Court for the Northern District of Georgia. (No. 97-03837-CV-CAP-
1), Charles A. Pannell, Jr., Judge.
Before CARNES, COX and NOONAN*, Circuit Judges.
CARNES, Circuit Judge:
William Lucas appeals the district court's grant of summary judgment in favor of W.W. Grainger,
Inc. on his claims under the Americans with Disabilities Act. He contends the district court erred in
concluding that he was not disabled within the meaning of the statute. He also contends the district court
erred in concluding Grainger did not unlawfully retaliate against him for engaging in statutorily protected
expression. On our way to affirming the district court's judgment, we address a number of issues about what
constitutes reasonable accommodation and a few relating to retaliation.
BACKGROUND
Grainger is an industrial commercial supply company that distributes maintenance, repair, and
operating products from warehouses that it operates throughout the United States. On May 22, 1993,
Grainger hired the plaintiff, William Lucas, to work as a Material Handler at its Marietta Boulevard facility
in Atlanta.
Though Lucas was hired as a Material Handler, he began training for the position of Will-Call Service
Representative soon after he was hired. Like Material Handler, the Will-Call job consists primarily of
performing physical labor in Grainger's warehouse. However, unlike Material Handler, the Will-Call job also
involves a significant amount of interaction with Grainger's customers, and it is considered a promotion from
Material Handler. Grainger describes the job duties of a Will-Call Service Representative as follows:
When a customer places an order with a Customer Service Representative, a purchase order is
delivered to the Will-Call Service Representative, who picks [up] and delivers the product from the
*
Honorable John T. Noonan, Jr., U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
warehouse ... to the customer upon the customer's arrival at the branch. Will-Call Service
Representatives ... are also required to work in the warehouse on a daily basis, which includes
performing such functions as receiving freight, stocking products, pulling orders, loading outbound
trailers, and performing maintenance activities in the warehouse. The essential functions ... include,
among other things, bending, stooping, climbing, carrying, reaching, pushing, pulling, lifting up to
seventy pounds on a regular basis, and operating power equipment. Lifting more than ten pounds
is an essential function....
Lucas trained for the Will-Call job for several months after he was hired, although his actual job title
remained Material Handler. By April of 1994, though, Grainger needed someone to handle customer
telephone calls at the Marietta Boulevard facility, and it decided to train Lucas for the job of Customer
Service Representative instead. The Customer Service Representative position is essentially a desk job, and
Lucas trained for it by performing duties such as taking orders from customers over the phone, and filling out
paperwork. The job is considered a promotion from both Material Handler and Will-Call Service
Representative.
Lucas performed primarily Customer Service Representative duties for much of 1994. During that
time, several customers complained about his phone demeanor. For example, one customer complained to
Grainger that Lucas had spoken to him in a degrading fashion and that customer said he would not do
business with Grainger as long as Lucas was answering the phone. Due to the complaints, Grainger decided
Lucas was not cut out to be a Customer Service Representative, and moved him back to working in the
warehouse, where he had less customer contact than he had during his training for the Customer Service
Representative job.
On October 15, 1994, Grainger officially promoted Lucas to the position of Will-Call Service
Representative, and he held that title during the remainder of his employment with Grainger.
In May of 1996 Lucas injured his back while unloading a trailer. After seeing a doctor about the
injury, he told his boss, Paul Stewart, who worked as the Branch Manager at the Marietta Boulevard facility,
that his doctor had placed him on complete bed rest. Lucas also told Stewart that he would be unable to
return to work until June 3, 1996 and that, upon returning to work, he would have to abide by certain work
restrictions, including lifting no more than ten pounds and refraining from repetitive bending or stooping for
two weeks.
Stewart promptly placed Lucas on short-term medical leave, and informed him that when he returned
to work Grainger would try to temporarily assign him to duties that did not interfere with his work
restrictions. Stewart also told Lucas that he would eventually have to return to his Will-Call job, and
reminded him that, due to previous customer complaints, Grainger would not assign him to a Customer
Service Representative position on a regular basis.
On June 12, 1996, Lucas returned to work and presented a note from his doctor to Grainger. The note
permitted Lucas to perform office work, i.e., work that did not entail manual labor, so long as he adhered to
certain work restrictions. At the time, there were no openings at the Marietta Boulevard facility for office
jobs, so Stewart temporarily displaced two employees from their jobs in order to allow Lucas to take over
their office duties. The displaced employees performed the warehouse duties that Lucas would have
performed as a Will-Call Service Representative, while Lucas performed office duties exclusively.
On June 20, 1996, Lucas informed Grainger that he had developed degenerative disk disease and
lumbar disk syndrome in his back. The next day, while he was performing his temporary office duties, Lucas
told a manager at Grainger that he could barely keep his eyes open and felt "knotted up inside." Lucas left
work early that day, and he did not return for several days.
When he returned to work on June 26, 1996, Lucas made a request to Stewart for an accommodation
in the form of a permanent job that entailed "desk work." This was the first time Lucas requested an
accommodation for his back impairment from Grainger, although he subsequently made the same request on
at least one other occasion. At that time there were no desk jobs available at the Marietta Boulevard facility,
so Stewart inquired into job openings at Grainger's other Atlanta facilities. Eventually, Stewart was able to
arrange three job interviews for Lucas. The three positions, which all existed outside of the Marietta
Boulevard facility, were Quotations Specialist, Branch Support Specialist, and Support Specialist for
Grainger's Lockheed account. Lucas testified in his deposition that he applied for these three positions
because he was under the impression that they did not require physical labor.
Lucas interviewed for each of the three positions, but he was not selected to fill any of them.
According to Grainger, Lucas either was not qualified or was not the most qualified person who applied for
each one. The individuals who interviewed and evaluated Lucas for the positions did not consider his work
restrictions in deciding not to select him.
Around July 8, 1996, Lucas notified Stewart that his doctor had yet to release him from his work
restrictions, and that the doctor had recommended he permanently perform "light duty" work in order to avoid
further injuring his back. Lucas also informed Stewart that he would never work in the warehouse again,
even if he became physically able to do so, because he was afraid it might further injure his back. Stewart
responded by reminding Lucas that his office assignment was temporary and that no permanent office jobs
were available at the Marietta Boulevard facility.
Four days later Lucas informed Stewart that his back impairment had not improved and said that he
could not and would not perform warehouse work. Grainger then placed Lucas on workers' compensation
leave effective July 15, 1996, and Lucas began receiving workers' compensation benefits. On January 8,
1997, Lucas filed a discrimination charge with the Equal Employment Opportunity Commission.
Lucas remained on workers' compensation leave for nearly one year. Then, in June of 1997, Grainger
offered him a job as a Bins Sorter at its Zone Distribution Center ("Distribution Center") in Atlanta. Grainger
had created the Bins Sorter position by identifying certain duties from existing jobs at the Distribution Center,
and combining those duties into a job that Grainger felt Lucas could perform given his work restrictions. The
Bins Sorter job entailed sorting small bin items from a cart and placing them on racks, as well as using a scan
gun to identify the items by bar code.
Lucas visited the Distribution Center in order to learn more about the Bins Sorter job first-hand.
Thereafter, Grainger sent a typed form entitled "Job Description" to Lucas' physician, Dr. Christopher Clare.
The form briefly described what it called the "Essential Job Functions" of the Bins Sorter position, listed the
job's physical requirements, and indicated that modifications to those requirements were possible.
Dr. Clare made some changes to the Essential Job Functions part of the Job Description form. First,
where the form indicated that a Bins Sorter was "occasionally" required to squat or kneel, Dr. Clare entered
"Not at all." Second, where the form indicated that a Bins Sorter was "occasionally" required to lift or carry
"up to 40-50 lbs.," and was "frequently" required to lift or carry "up to 10-25 lbs.," he again entered "Not at
all." Dr. Clare then checked a blank space marked "Approved" at the bottom of the form, signed the form,
and returned it to Grainger in September of 1997.
The district court found that by making these changes to the Job Description form, Dr. Clare
approved Lucas for the Bins Sorter position with minor modifications that were consistent with the job's
essential functions. Lucas, on the other hand, claims Dr. Clare rejected the Bins Sorter job because its
minimum requirements exceeded his work restrictions. He also claims that sometime after he visited the
Distribution Center, Dr. Clare's office called and informed him that he had not been approved for the Bins
Sorter position.
Grainger did not offer Dr. Clare's modified version of the Bins Sorter position to Lucas. In fact, after
Lucas visited the Distribution Center, he and Grainger had no further contact regarding the Bins Sorter
position or any other position. Lucas maintains that he would have accepted the modified Bins Sorter
position if Grainger had offered it to him.
Lucas never returned to work with Grainger after he went on workers' compensation leave; instead,
in March of 1998 he began working for a different company as an admissions inspector.
On December 29, 1997, Lucas sued Grainger in the Northern District of Georgia, alleging that
Grainger had violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., by
discriminating against him on the basis of his impairment, by harassing him1, and by unlawfully retaliating
against him. Lucas sought back pay, declaratory relief, reinstatement, front pay in lieu of reinstatement, and
compensatory and punitive damages.
Grainger responded by filing a motion for summary judgment, which the district court granted on
July 14, 2000. The court concluded that Lucas was not "disabled" within the meaning of the ADA and,
therefore, could not establish a prima facie case for discrimination or for harassment. As for Lucas' claim of
unlawful retaliation, the court determined that he had failed to establish a causal link between a statutorily
protected expression and any of Grainger's alleged adverse employment actions. Accordingly, the district
court dismissed all of Lucas' claims and entered summary judgment in favor of Grainger.
DISCUSSION
We review the district court's grant of summary judgment de novo, and apply the same standards as
that court. See Blake v. American Airlines, Inc., 245 F.3d 1213, 1215 (11th Cir.2001).
A. LUCAS' ADA DISCRIMINATION CLAIM
The ADA prohibits an employer from discriminating against "a qualified individual with a disability
because of the disability of such individual in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges
of employment." 42 U.S.C. § 12112(a). In order to establish a prima facie case of discrimination under the
ADA, the plaintiff must show that: (1) he is disabled; (2) he was a "qualified individual" at the relevant time,
meaning he could perform the essential functions of the job in question with or without reasonable
accommodations; and (3) he was discriminated against because of his disability. See Reed v. Heil Co., 206
F.3d 1055, 1061 (11th Cir.2000).
An employer unlawfully discriminates against a qualified individual with a disability when the
employer fails to provide "reasonable accommodations" for the disability—unless doing so would impose
1
Lucas has abandoned his unlawful harassment claim by not raising it in his initial brief on appeal.
See, e.g., Allison v. McGhan Med. Corp., 184 F.3d 1300, 1317 n. 17 (11th Cir.1999).
undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a). An accommodation
can qualify as "reasonable," and thus be required by the ADA, only if it enables the employee to perform the
essential functions of the job. See LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 835 (11th Cir.1998).
The plaintiff bears the burden of identifying an accommodation, and of demonstrating that the
accommodation allows him to perform the job's essential functions. See Stewart v. Happy Herman's Cheshire
Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.1997); Willis v. Conopco, Inc., 108 F.3d 282, 283 (11th
Cir.1997).
The ADA lists as examples of reasonable accommodations "job restructuring, part-time or modified
work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, ...
and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111(9)(B); see 29 C.F.R.
§ 1630.2(o)(2)(ii). As the list indicates, the ADA may require the employer to "reassign," i.e., transfer, the
disabled employee to a vacant position as a reasonable accommodation. The reassignment duty, however,
does not require the employer to bump another employee from a position in order to accommodate a disabled
employee. See Willis, 108 F.3d at 284. Nor does it require the employer to promote a disabled employee.
See EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024, 1029 (7th Cir.2000); Cravens v. Blue Cross & Blue
Shield, 214 F.3d 1011, 1019 (8th Cir.2000); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir.1998);
Shiring v. Runyon, 90 F.3d 827, 832 (3d Cir.1996); see also Terrell v. USAir, 132 F.3d 621, 626 (11th
Cir.1998) (citing White v. York Int'l Corp., 45 F.3d 357, 362 (10th Cir.1995)); 29 C.F.R. pt. 1630, App. §
1630.2(o) ("It should also be noted that an employer is not required to promote an individual with a disability
as an accommodation.").
The district court determined that Lucas had not established a triable issue as to whether he was
disabled, and granted summary judgment in favor of Grainger on his discrimination claim. We need not
decide whether the district court properly resolved that issue if there is another basis for affirming its
judgment, because we may affirm its judgment "on any ground that finds support in the record." Jaffke v.
Dunham, 352 U.S. 280, 281, 77 S.Ct. 307, 308, 1 L.Ed.2d 314 (1957); see Stewart, 117 F.3d at 1286.
Assuming, without deciding, that Lucas' back impairment rendered him disabled, the district court's grant of
summary judgment is still due to be affirmed, because Lucas has failed to put forth evidence sufficient for
a reasonable jury to find that Grainger discriminated against him because of his disability.
Lucas contends that Grainger discriminated against him by failing to reasonably accommodate his
disability. According to Lucas, the ADA required Grainger to accommodate his disability by doing one of
the following: (1) reassigning him to a Customer Service Representative position at the Marietta Boulevard
facility; (2) giving him one of the three positions for which he interviewed; (3) reassigning him to the
Distribution Representative position at the Distribution Center; or (4) restructuring the Bins Sorter position
in accordance with Dr. Clare's changes on the Job Description form and offering him that position.2
1. The Customer Service Representative Position
Lucas contends that Grainger discriminated by not reassigning him to the Customer Service
Representative position at the Marietta Boulevard facility. We find no merit to this argument, because even
if we assume (as we probably should not) that Lucas was otherwise qualified to perform the duties of that
position notwithstanding the prior customer complaints about his lack of interpersonal skills, there were no
vacancies in that position, or in any other position involving desk work, at the Marietta Boulevard facility.
Indeed, the lack of vacancies there is what prompted Stewart to set up interviews for Lucas at Grainger's other
Atlanta facilities. Because there was no vacancy at the Marietta Boulevard facility for Customer Service
Representative, reassigning Lucas to that position would have required Grainger to bump another employee
from it, and that is not required by the ADA.3 See Willis, 108 F.3d at 284.
Even if there had been an opening for Customer Service Representative at the Marietta Boulevard
facility, Grainger would not have been required under the ADA to reassign Lucas to that position. Customer
Service Representative is a step up from Material Handler and from Will-Call Service Representative; it
2
Lucas contends that Grainger failed to engage him in an "interactive process" with the aim of
identifying an accommodation that might allow him to continue working at Grainger after he became
disabled. See 29 C.F.R. § 1620.2(o)(3). However, "where a plaintiff cannot demonstrate 'reasonable
accommodation,' the employer's lack of investigation into reasonable accommodation is unimportant."
See Willis, 108 F.3d at 285 (citation omitted); accord Kennedy v. Dresser Rand Co., 193 F.3d 120, 122
(2d Cir.1999) (summary judgment is appropriate where the plaintiff fails to identify a reasonable
accommodation that the defendant refused to provide). In other words, regardless of whether the ADA
required Grainger to engage Lucas in an interactive process, Lucas' discrimination claims fail unless he
can show that an accommodation reasonably could have been made. The ADA is not intended "to punish
employers for behaving callously if, in fact, no accommodation for the employee's disability could
reasonably have been made." Willis, 108 F.3d at 285.
3
The record reveals that when Stewart provided Lucas with a temporary office position in June of
1996, which was just before Lucas first requested to be accommodated with a permanent desk job,
Stewart displaced two other employees from their office duties and had them perform Lucas' Will-Call
job duties. That was more than the ADA required. Good deeds ought not be punished, and an employer
who goes beyond the demands of the law to help a disabled employee incurs no legal obligation to
continue doing so. See Terrell, 132 F.3d at 626 n. 6 ("An employer that bends over backwards to
accommodate a disabled worker ... must not be punished for its generosity by being deemed to have
conceded the reasonableness of so far-reaching an accommodation.") (internal marks and citation
omitted).
would have been a promotion for Lucas. The ADA does not mandate that employers promote disabled
employees in order to accommodate them, see, e.g., Humiston-Keeling, 227 F.3d at 1029, so Grainger's failure
to reassign Lucas to that job was not discrimination under the ADA.
2. The Three Positions for Which Lucas Interviewed
Lucas next contends that Grainger discriminated against him by not reassigning him to one of the
three positions he interviewed for in June and July of 1996. He insists that there is a genuine issue of material
fact as to whether he was qualified to do those jobs. Be that as it may, as we have already explained, the
ADA does not require an employer to promote a disabled employee in order to accommodate him. The
individuals who interviewed Lucas for the three jobs, as well as Stewart, all testified that the jobs would have
been promotions from the Will-Call Service Representative position, and Lucas offered no evidence to the
contrary. Therefore, Grainger did not discriminate against Lucas by failing to reassign him to one of the three
positions for which he interviewed.4
3. The Distribution Representative Job
Lucas also contends that Grainger discriminated against him by not reassigning him to the
Distribution Representative position at the Distribution Center.5 That position became vacant sometime in
the summer of 1996, when the person who held it was promoted to Branch Support Specialist, which was one
of the jobs Lucas had interviewed for but had not gotten. Gary Powers, who managed the Distribution
4
Grainger's motion for summary judgment characterized the three positions as "alternative
employment opportunities that were reasonably available...." Lucas maintains that, "as a matter of
policy," Grainger's characterization of the three positions in its summary judgment motion ought to
preclude it from arguing on appeal that placing him in those positions was not required under the ADA.
But Grainger's characterization of the positions simply acknowledges that they were "reasonably
available" in the sense that there was a vacancy in each one, and it does not speak to the issue of whether
a promotion of Lucas to any of those three positions was an accommodation Grainger was required to
provide under the ADA.
5
Lucas also argues that Grainger was required under the ADA to reassign him to several other
positions that were available at the Distribution Center, but he does not identify any of them. Instead, he
cites in his brief to the deposition testimony of Gary Powers, who managed the Distribution Center.
Powers testified that he was "sure" there were "several positions" open at the Distribution Center in the
summer of 1996, including "warehousing, night crew, receiving, picking, [and] packing," and that the
majority of those jobs were part-time. This testimony, which consists solely of Powers' speculation
regarding the existence of vacant positions at the Distribution Center, falls far short of the evidence
needed to establish that a specific reasonable accommodation, in the form of a vacant position, actually
existed at the Distribution Center. See Willis, 108 F.3d at 286 ("[E]stablishing that a reasonable
accommodation exists is a part of an ADA plaintiff's case."). Further, Lucas offered no evidence that he
was "otherwise qualified" for those unidentified jobs; he put forward no evidence that he could have
performed the essential functions of whatever jobs there were with or without reasonable accommodation.
See 42 U.S.C. § 12111(8).
Center, testified in his deposition that the Distribution Representative job involved "some office duties ... as
well as ... performing some of the duties on the packing station line," including "[p]reparing orders for
shipment, [and] so forth." According to Powers, the job required physical labor.
In order to have survived Grainger's motion for summary judgment on his discrimination claim,
Lucas must have put forth evidence sufficient for a jury to find that he was "a qualified individual with a
disability"—i.e., that he was "otherwise qualified" for the Distribution Representative job. See Stewart, 117
F.3d at 1285; Duckett v. Dunlop Tire Corp., 120 F.3d at 1222, 1225 (11th Cir.1997). He was "otherwise
qualified" for that job if he could perform its essential functions with or without reasonable accommodation.
See 42 U.S.C. § 12111(8) ("The term 'qualified individual with a disability' means an individual with a
disability who, with or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires."); Davis v. Fla. Power & Light Co., 205 F.3d
1301, 1305 (11th Cir.2000). Our first task is to identify the essential functions of the Distribution
Representative job.
Essential functions are "the fundamental job duties of the employment position the [disabled
employee] holds or desires." 29 C.F.R. § 1630.2(n)(1). Determining whether a particular job duty is an
essential function involves a factual inquiry to be conducted on a case-by-case basis. See Davis, 205 F.3d
at 1305. We have previously stated that, in conducting this inquiry, "consideration shall be given to the
employer's judgment ... and if an employer has prepared a written description ... for the job, this description
shall be considered evidence of the essential functions of the job." Earl v. Mervyns, Inc., 207 F.3d 1361,
1365 (11th Cir.2000) (quoting 42 U.S.C. § 12111(8)); see also 29 C.F.R. § 1630.2(n) (listing additional
factors to consider in determining whether a particular job function is essential).
The evidence establishes without dispute that performing some of the duties on the packing station
line, which includes preparing orders for shipment, is one of the essential functions of the Distribution
Representative job. Performing those duties requires physical labor.6 Lucas has failed to show he was
"otherwise qualified" for the Distribution Representative position, because he has not satisfied his burden of
6
In his brief, Lucas insists that physical labor is not essential to performing the duties of the
Distribution Representative position, but he has failed to provide any evidence in support of that
argument, and Granger has put in evidence to the contrary. See Martinson v. Kinney Shoe Corp., 104
F.3d 683, 687 (4th Cir.1997) (adopting employer's judgment of essential function where plaintiff did not
offer any evidence at the summary judgment stage to contradict that judgment); Milton v. Scrivner, Inc.,
53 F.3d 1118, 1124 (10th Cir.1995) (same).
putting forth evidence that he could, with or without reasonable accommodation, perform the essential
function of engaging in the physical labor necessary to prepare orders for shipment on the packing line. Not
only that, but there is a bushel basket of evidence to the contrary: (1) in June of 1996 Lucas requested to be
accommodated with a permanent desk job because he felt he was unable to perform physical labor in
Grainger's warehouse due to his back injury; (2) Lucas testified in his deposition that he applied for the three
jobs that Stewart had set up interviews for in June and July of 1996 because those jobs "didn't require physical
labor"; (3) in July of 1996 Lucas informed Stewart that he would never work in Grainger's warehouse
again—even if he became physically able to do so—because he did not want to risk further injury to his back;
and (4) in September of 1997, Dr. Clare, Lucas' physician, modified the Job Description form for the Bins
Sorter position to eliminate the duties of squatting, kneeling, lifting, and carrying because he felt that Lucas
could not perform those duties with his back impairment. Viewing all of this evidence in the light most
favorable to Lucas, we conclude that he has not created a triable issue about whether he was "otherwise
qualified" for the Distribution Representative position.7 See 42 U.S.C. § 12111(8); 29 C.F.R. § 1630.2(m);
Duckett, 120 F.3d at 1225; Burch v. City of Nacogdoches, 174 F.3d 615, 619 (5th Cir.1999) ("The law in this
area is crystal clear: an otherwise qualified person is one who is able to meet all of the [job's] requirements
in spite of his handicap.") (internal marks and citation omitted).
4. The Bins Sorter Position
Finally, Lucas contends that Grainger should have restructured the Bins Sorter position and offered
it to him. He correctly points out that "job restructuring" is an accommodation the ADA may require the
employer to make in some cases, see 42 U.S.C. § 12111(9)(B); but job restructuring is required only where
it is reasonable, see Terrell, 132 F.3d at 626. Lucas says that if Grainger had restructured the Bins Sorter
position in accordance with the changes Dr. Clare entered on the Job Description form, and had offered him
that job, he would have accepted it.
An accommodation is "reasonable" and necessary under the ADA only if it enables the employee
to perform the essential functions of the job. See LaChance, 146 F.3d at 835; Willis, 108 F.3d at 284. The
7
Powers did testify that he believed there was "a possibility" Lucas was "minimally qualified" for the
Distribution Representative job. Putting aside questions about the insubstantiality of a mere "possibility,"
the context in which this statement was made shows that Powers was talking about whether Lucas had
developed the requisite job skills and experience to perform the Distribution Representative job, not
whether he could physically withstand the demands of the job and thereby perform all of its essential
functions with or without reasonable accommodation.
essential functions of the Bins Sorter position are described on the Job Description form that Grainger sent
to Dr. Clare. The form states that the position's "Essential Job Functions" include sorting items from a cart
and placing them on racks. According to the form, those functions required "occasionally"—meaning from
1 to 3 hours per shift—lifting or carrying items that weigh up to 40 to 50 pounds, as well as squatting or
kneeling, and "frequently"—meaning from 4 to 6 hours per shift—lifting or carrying items that weigh up to
10 to 25 pounds. In Dr. Clare's opinion, Lucas' back impairment precluded him from doing any of those
things, which is why Dr. Clare struck squatting, kneeling, lifting, and carrying from the list of job functions
or activities on the form. But those were essential functions of the Bins Sorter position.
While it is true that the ADA may require an employer to restructure a particular job by altering or
eliminating some of its marginal functions, employers are not required to transform the position into another
one by eliminating functions that are essential to the nature of the job as it exists. See Earl, 207 F.3d at 1367;
Holbrook v. City of Alpharetta, 112 F.3d 1522, 1528 (11th Cir.1997); Wells v. Shalala, 228 F.3d 1137, 1145
(10th Cir.2000); Donahue v. Consolidated Rail Corp., 224 F.3d 226, 232 (3d Cir.2000); Lloyd v. Hardin
County, 207 F.3d 1080, 1084 (8th Cir.2000); Robertson v. Neuromedical Ctr., 161 F.3d 292, 295-96 (5th
Cir.1998); Gilbert v. Frank, 949 F.2d 637, 642 (2d Cir.1991). The difference between the accommodation
that is required and the transformation that is not is the difference between saddling a camel and removing
its hump. Restructuring the Bins Sorter position by eliminating squatting, bending, lifting, or carrying bin
items would have changed the nature of the beast, and that is not something the ADA requires.8
B. LUCAS' ADA RETALIATION CLAIM
The district court also granted summary judgment in favor of Grainger on Lucas' ADA retaliation
claim. 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 ....
8
Lucas also contends that the ADA required Grainger to restructure his Will-Call Service
Representative job as a reasonable accommodation. See 42 U.S.C. § 12111(9)(B) (listing "job
restructuring" as a possible reasonable accommodation). He maintains that Grainger could have
restructured that job by, for example, instituting "reasonable physical lifting restrictions." However,
performing physical labor in Grainger's warehouse was an essential—indeed the core—function of the
Will-Call job, and Lucas either could not or would not perform that function. Lucas told Stewart that he
would never work in the warehouse again, even if he became physically able to do so, because he did not
want to risk further injuring his back. When asked in his deposition whether there was anything Grainger
could have done after he injured his back to help him perform his warehouse duties, Lucas answered
"no." Lucas either could not or would not perform the essential functions of the Will-Call Service
Representative job and, therefore, he was not "otherwise qualified" to do it. See 42 U.S.C. § 12111(8);
29 C.F.R. § 1630.2(m).
under [the ADA]." 42 U.S.C. § 12203(a). In order to establish a prima facie case of retaliation, Lucas must
show that: (1) he 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. See Farley
v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir.1999); Stewart, 117 F.3d at 1287.
Lucas claims that he engaged in a statutorily protected expression on June 26, 1996, when he asked
Stewart for an accommodation in the form of desk work and, again, on January 8, 1997, when he filed a
charge with the EEOC. Moving straight to the second element of a prima facie case of retaliation, we
conclude that Lucas has failed to produce sufficient evidence to permit a reasonable jury to find that Grainger
took an adverse employment action against him.
Lucas maintains that Grainger took an adverse action against him when Stewart "actively solicited
negative performance memoranda from several of ... Lucas' co-workers." In August of 1996, after Grainger
had placed Lucas on workers' compensation leave, Stewart and two other members of Grainger's management
at the Marietta Boulevard facility submitted evaluations to Lucas' employee file that were critical of his
customer service skills.
An employment action is considered "adverse" only if it results in some tangible, negative effect on
the plaintiff's employment. Here, the negative performance evaluations did not result in any effect on Lucas'
employment with Grainger. Grainger did not rely on the evaluations to make any employment decisions
regarding Lucas. Indeed, Lucas concedes in his brief to us that "Stewart did not use [the evaluations]; he
merely placed them in [my] file." And Stewart testified in his deposition that he "simply wanted something
in the file" to support his position that Lucas was not qualified to be a Customer Service Representative.
Negative performance evaluations, standing alone, do not constitute adverse employment action sufficient
to satisfy the second element of a prima facie case of retaliation under the ADA.9 See Silk v. City of Chicago,
194 F.3d 788, 802-03 (7th Cir.1999) (concluding that the plaintiff's ADA retaliation claim fails because "he
provided no evidence that any injury or adverse employment action resulted from the allegedly lower ratings
[in his performance evaluations]."); Cossette v. Minn. Power & Light., 188 F.3d 964, 972 (8th Cir.1999)
("[T]he negative evaluation does not by itself constitute an adverse employment action within the ADA's
contemplation."); see generally Davis v. Town of Lake Park, 245 F.3d 1232, 1241 (11th Cir.2001) ("[C]ourts
9
Lucas also contends that Stewart took an adverse employment action against him by harassing him
and by threatening his job. However, he does not point to any evidence in support of that contention.
are wisely reluctant to treat job performance memoranda as actionable under Title VII where they do not
trigger any more tangible form of adverse action such as a loss in benefits, ineligibility for promotional
opportunities, or more formal discipline.").
Lucas also contends that Grainger took adverse action against him by failing to reasonably
accommodate him, by refusing to maintain him on light duty work, and by failing to engage him in an
interactive process. But this contention merely reclothes Lucas' ADA discrimination claim, which we have
already rejected, and it fares no better in this garb. See Stewart, 117 F.3d at 1288 ("[T]he acts Stewart
describes relate directly to her 'reasonable accommodation' discrimination claim, not her retaliation claim,
and accordingly provide no basis for denying summary judgment on this issue.").
AFFIRMED.