Shepard v. United Parcel Service, Inc. , 470 F. App'x 726 ( 2012 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                  FILED
    U.S. COURT OF APPEALS
    No. 11-11976                ELEVENTH CIRCUIT
    Non-Argument Calendar              MARCH 14, 2012
    ________________________               JOHN LEY
    CLERK
    D.C. Docket No. 5:08-cv-00906-SLB
    DALE SHEPARD,
    Plaintiff-Appellant,
    versus
    UNITED PARCEL SERVICE, INC.,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    ________________________
    (March 14, 2012)
    Before TJOFLAT, CARNES and WILSON, Circuit Judges.
    PER CURIAM:
    Dale Shepard is an African-American male suffering (since 1997) from
    chronic myeloid leukemia. He brought this action against his employer, United
    Parcel Service, Inc. (“UPS”), claiming disability discrimination in violation of the
    Americans with Disabilities Act (“ADA”), 
    42 U.S.C. § 12112
    (a), race
    discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
    §§ 2000e-2(a), and 
    42 U.S.C. § 1981
    , and invasion of privacy in violation of
    Alabama law.1 Following discovery, the district court granted UPS summary
    judgment on all three claims. Shepard now appeals.
    We address the court’s disposition of the claims in the above order, and,
    concluding that Shepard failed as a matter of law to establish any of them, affirm
    the district court’s judgment.2
    I.
    To establish a circumstantial prima facie case of discrimination under the
    ADA, the plaintiff must demonstrate that he (1) is disabled, (2) is a qualified
    individual, and (3) was subjected to unlawful discrimination because of his
    disability. Greenberg v. BellSouth Telecommunications, Inc., 
    498 F.3d 1258
    ,
    1
    Shepard sought relief against UPS on other legal theories, but they are not at issue in
    this appeal.
    2
    In assessing the correctness of the district court’s grant of summary judgment, we take
    the evidence in the record in the light most favorable to Shepard, the non-moving party.
    Greenberg v. BellSouth Telecommunications, Inc., 
    498 F.3d 1258
    , 1263 (11th Cir. 2007).
    2
    1263 (11th Cir. 2007); see also 
    42 U.S.C. § 12112
    (a) (stating that “no [employer]
    shall discriminate against a qualified individual with a disability because of the
    disability of such individual”).3 The plaintiff is disabled if he has “(A) a physical
    or mental impairment that substantially limits one or more of the major life
    activities of such individual; (B) a record of such an impairment; or (C) [is]
    regarded as having such an impairment.” 
    42 U.S.C. § 12102
    (2). Major life
    activities include “functions such as caring for oneself, performing manual tasks,
    walking, seeing, hearing, speaking, breathing, learning, and working.” Greenberg,
    
    498 F.3d at 1264
     (quoting 
    29 C.F.R. § 1630.2
    (i) (2007)).
    EEOC regulations inform the courts that the following factors are relevant
    in determining whether an individual has a disability: “(i) The nature and severity
    of the impairment; (ii) The duration or expected duration of the impairment; and
    (iii) The permanent or long term impact, or the expected permanent or long term
    impact of or resulting from the impairment.” Garrett v. University of Alabama at
    Birmingham Bd. of Trs., 
    507 F.3d 1306
    , 1311 (11th Cir. 2007) (quoting 29 C.F.R.
    3
    The term “disability” is “interpreted strictly to create a demanding standard for
    qualifying as disabled.” See Carruthers v. BSA Advertising, Inc., 
    357 F.3d 1213
    , 1216 (11th Cir.
    2004) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 
    534 U.S. 184
    , 197, 
    122 S.Ct. 681
    , 691,
    
    151 L.Ed.2d 615
     (2002)). The ADA Amendments Act, effective January 1, 2009. See Pub.L.
    No. 110–325, 
    122 Stat. 3553
    , expanded the definition of disability. 
    Id.
     § 4. In this case,
    however, the district court did not apply the Act retroactively to Shepard’s claims, and Shepard
    does not argue that the court’s failure to apply the Act retroactively constituted error.
    3
    § 1630.2(j)(2) (2007)).
    A plaintiff claiming that he is substantially limited in the major life activity
    of “working” must establish that his condition “significantly restrict[s] [his] ability
    to perform either a class of jobs or a broad range of jobs in various classes as
    compared to the average person having comparable training, skills and abilities.”
    Pritchard v. Southern Co. Services, 
    92 F.3d 1130
    , 1133 (11th Cir.1996). “An
    impairment does not substantially limit the ability to work merely because it
    prevents a person from performing either a particular specialized job or a narrow
    range of jobs. Nor does the inability to perform a single, particular job . . .
    constitute a substantial limitation in the major life activity of working.” Id.1133
    (quotations and citations omitted). The plaintiff must be precluded from more
    than one type of job, even if the job foreclosed is the plaintiff’s job of choice.
    Cash v. Smith, 
    231 F.3d 1301
    , 1306 (11th Cir. 2000).
    An employer’s decision to place an employee on disability leave of absence
    is evidence of a record of impairment. Pritchard, 92 F.3d at 1134. Even so, the
    plaintiff still must demonstrate that his impairment substantially limited him in at
    least one major life activity to support a claim under the record-of-having-an
    impairment standard. Collado v. United Parcel Service, Co., 
    419 F.3d 1143
    , 1157
    (11th Cir. 2005); see also Hillburn v. Murata Electronics North America, Inc., 181
    
    4 F.3d 1220
    , 1229-30 (11th Cir. 1999).
    Under the “regarded as having . . . an impairment” definition of disabled, an
    individual is considered “disabled” if his employer perceives him as having an
    ADA-qualifying disability. See Carruthers v. BSA Advertising, Inc., 
    357 F.3d 1213
    , 1216 (11th Cir. 2004). That is, he “(1) has an impairment that does not
    substantially limit a major life activity, but is treated by an employer as though it
    does; (2) has an impairment that limits a major life activity only because of others’
    attitudes towards the impairment; or (3) has no impairment whatsoever, but is
    treated by an employer as having a disability as recognized by the ADA.”
    Hilburn, 181 F.3d at 1230. “As with actual disabilities, a perceived impairment
    must be believed to substantially limit a major life activity of the individual.” Id.
    The second prong of a prima facie case requires that the plaintiff prove that
    he is a “qualified individual,” i.e., someone with a disability who, “with or without
    reasonable accommodation, can perform the essential functions of the employment
    position that such individual holds or desires.” 
    42 U.S.C. § 12111
    (8); Holly v.
    Clairson Industries, L.L.C., 
    492 F.3d 1247
    , 1256 (11th Cir. 2007). “Accordingly,
    an ADA plaintiff must show either that he can perform the essential functions of
    his job without accommodation, or, failing that, . . . that he can perform the
    essential functions of his job with a reasonable accommodation.” Holly, 
    492 F.3d
                                          5
    at 1256.4 “The use of the word ‘reasonable’ as an adjective for the word
    ‘accommodate’ connotes that an employer is not required to accommodate an
    employee in any manner in which that employee desires.” Stewart, 117 F.3d at
    1285. “Stated plainly, under the ADA a qualified individual with a disability is
    not entitled to the accommodation of [his] choice, but only to a reasonable
    accommodation.” Id. at 1286. An employer is not required to provide
    accommodations that violate the employer’s internal policies or a collective
    bargaining agreement. Davis v. Florida Power & Light Co., 
    205 F.3d 1301
    , 1307
    (11th Cir. 2000); Duckett v. Dunlop Tire Corp., 
    120 F.3d 1222
    , 1225 (11th Cir.
    1997). Furthermore, “an employer who goes beyond the demands of the law to
    help a disabled employee incurs no legal obligation to continue doing so.” Lucas
    v. W.W. Grainger, Inc., 
    257 F.3d 1249
    , 1257 n.3 (11th Cir. 2001). Once a plaintiff
    establishes that he is a “qualified individual with a disability,” the employer may
    show that the otherwise “reasonable accommodation” would impose an undue
    hardship on the employer. 
    42 U.S.C. § 12112
    (b)(5)(A).
    The district court granted UPS summary judgment on Shepard’s ADA claim
    on the ground that Shepard failed to “provide[ ] sufficient evidence to show that
    4
    It goes without saying that an individual who is unable to perform an essential function
    of his job, even with an accommodation, is, by definition, not a “qualified individual.”
    6
    he had a disability under the ADA in September 2006 [when UPS placed him on a
    medical leave of absence], that he was otherwise qualified to perform his job, or
    that he was denied a reasonable accommodation.” Memorandum Opinion at 44.
    We agree.
    Shepard claims that his medical condition substantially limited the major
    life activity of eating and sleeping, one of the bases of his ADA claim; yet, neither
    he nor his physician ever informed UPS of these limitations while he was on
    medical leave of absence. And he also failed to establish that his condition
    substantially limited the major life activity of working; he produced no evidence
    that he was precluded from a broad range or class of jobs, and instead, left the
    district court to speculate as to the impact his medical limitations had on his ability
    to work in other jobs.
    Similarly, Shepard cannot demonstrate that he had a record of having an
    impairment based solely on his prior medical leaves of absence and testimony that
    it was common knowledge at UPS that he had leukemia, because he failed also to
    produce evidence that his impairment substantially limited him in a major life
    activity. Nor did he demonstrate that he was “regarded as disabled” by UPS.
    Although UPS placed him on a leave of absence after learning of his medical
    restrictions and recommended that he apply for short-term disability benefits, the
    7
    evidence failed to show that UPS perceived him as having a disability that
    substantially limited him in a major life activity.
    Assuming, though, that Shepard created a genuine issue of material fact as
    to his asserted ADA disability, he nonetheless failed to demonstrate that he was a
    “qualified individual” for he did not show that he was able to perform the essential
    job functions of any available union position at UPS, with or without reasonable
    accommodation. His request to move back to an administrative position in the
    office would have required UPS to violate its internal policy against assigning
    tasks to union employees that were not covered by the collective bargaining
    agreement. With respect to available union positions at UPS, Shepard admitted
    that the 70-pound lifting requirement was an essential job function of all union
    jobs at the company’s Roebuck center, and he failed to show that he was either
    released from this restriction or that a reasonable accommodation was available to
    permit him to satisfy this requirement. The fact that UPS ultimately
    accommodated Shepard by eliminating or modifying this job function, which it
    reasonably deemed essential, was not sufficient to make out a case for the jury.
    II.
    Title VII makes it unlawful for an employer to discriminate against an
    employee “with respect to his compensation, terms, conditions, or privileges of
    8
    employment, because of [his] race.” 42 U.S.C. § 2000e-2(a)(1). Shepard claims
    that UPS, in making its employment decisions with respect to him, discriminated
    against him on account of his race. Where, as here, the employee is unable to
    prove discrimination via direct evidence, he must prove discrimination
    circumstantially. In such a case, we generally evaluate the claim of discrimination
    under the framework established by McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 
    93 S.Ct. 1817
    , 
    36 L.Ed.2d 668
     (1973), and Texas Dep’t. of Community
    Affairs v. Burdine, 
    450 U.S. 248
    , 
    101 S.Ct. 1089
    , 
    67 L.Ed.2d 207
     (1981). Alvarez
    v. Royal Atlantic Developers, Inc., 
    610 F.3d 1253
    , 1264 (11th Cir. 2010). We use
    the same frame work in evaluating the claim when, as here, brought under 
    42 U.S.C. § 1981
     as well as Title VII. Ferrill v. Parker Group, Inc., 
    168 F.3d 468
    ,
    472 (11th Cir. 1999).
    Under the McDonnell Douglas framework, the plaintiff may establish a
    prima facie case of discrimination by showing “that [he] was a qualified member
    of a protected class and was subjected to an adverse employment action in contrast
    to similarly situated employees outside the protected class.” 
    Id.
     To prove an
    adverse employment action under Title VII’s anti-discrimination clause, an
    employee must show “a serious and material change in the terms, conditions, or
    privileges of employment.” Davis v. Town of Lake Park, Fla., 
    245 F.3d 1232
    ,
    9
    1239 (11th Cir. 2001) (emphasis omitted). An adverse employment action is a
    “significant change in employment status such as hiring, firing, failing to promote,
    reassignment with significantly different responsibilities or a decision causing a
    significant change in benefits.” Webb-Edwards v. Orange County Sheriff's Office,
    
    525 F.3d 1013
    , 1031 (11th Cir. 2008) (quoting Burlington Indus., Inc. v. Ellerth,
    
    524 U.S. 742
    , 761, 
    118 S.Ct. 2257
    , 
    141 L.Ed.2d 633
     (1998)). An involuntary
    transfer to a different position may be an adverse employment action if it
    “involves a reduction in pay, prestige, or responsibility.” Hinson v. Clinch
    County, Ga. Bd. of Educ., 
    231 F.3d 821
    , 829 (11th Cir. 2000). It is not enough
    that a transfer imposes some de minimis inconvenience or alteration of
    responsibilities, however, because all transfers generally require an employee to
    engage in some learning, work with new people, and accept new responsibilities.
    
    Id. at 1453
    .
    The district court concluded that Shepard failed to present evidence
    sufficient to establish a prima facie case of discrimination in violation of Title VII.
    Memorandum Opinion at 48. We agree.
    First, Shepard failed to show that he suffered an adverse employment action.
    He presented no evidence that UPS’s decision-makers were aware of his medical
    limitations at the time he was moved from the office to the warehouse. Without
    10
    considering his later medical restrictions, UPS’s decision to move him from the
    office to the warehouse was a lateral transfer that did not involve a serious and
    material change in the terms, conditions, and benefits of his employment. The
    responsibilities of his new position were defined in the collective bargaining
    agreement and did not result in any change to his compensation, hours of work, or
    benefits. To the extent that he claimed that UPS’s decision to place him on
    medical leave of absence constituted an adverse employment action, the decision
    was a reasonable response to his medical restrictions and not an adverse
    employment action.
    Second, Shepard failed to establish that UPS treated another similarly-
    situated employee outside of his protected class more favorably. And, finally, he
    failed to show that, as a union employee, he was qualified for the office position
    from which he was transferred.
    III.
    Under Alabama law, the tort of invasion of the right of privacy, sometimes
    referred to as the tort of outrage, includes, in relevant part, the wrongful intrusion
    into a plaintiff’s “private concerns” or “emotional sanctum.” Phillips v. Smalley
    Maintenance Serv., Inc., 
    435 So.2d 705
    , 711 (Ala. 1983). The intrusion must be
    offensive or objectionable to a reasonable person. Hogin v. Cottingham, 533
    
    11 So.2d 525
    , 531 (Ala. 1988). A wrongful intrusion may be found where the means
    of gathering the information are excessively objectionable and improper. 
    Id. at 532
    .
    The district court found nothing in the evidence that could constitute the tort
    at issue. All that Shepard cited to establish the tort was an encounter with Gary
    Jones, the Roebuck center’s manager. Jones asked him about his “salvation” and,
    according to Shepard, this amounted to outrage. In the district court’s view,
    however,
    [n]o reasonable jury could find that Jones’s asking Shepard about his
    salvation on one occasion amounts to an outrage claim. The court
    need[ed] only examine the . . . element of the claim, that requires the
    conduct to be extreme and outrageous, to find that the claim fails.
    Extreme and outrageous conduct is “conduct so outrageous in
    character and so extreme in degree as to go beyond all possible
    bounds of decency, and to be regarded as atrocious and utterly
    intolerable in a civilized society.” Thomas [v. BSE Indus.
    Contractors, Inc., 
    624 So.2d 1041
    , 1044 (Ala. 1993)]. Nothing about
    the single question asked by Jones reaches such a high standard of
    offensiveness so as to be “utterly intolerable.” 
    Id.
     Cases that have
    presented actionable outrage have involved much more egregious and
    disturbing conduct.
    Memorandum Opinion at 51-52. We agree with the district court that Shepard’s
    claim failed as a matter of law.
    For the foregoing reasons, the judgment of the district court is
    AFFIRMED.
    12