Stacy Word v. BellSouth Telecommunication

Filing

Opinion issued by court as to Appellant Stacy Lanet Word. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion for Leave to File Reply Brief Out of Time filed by Appellant Stacy Lanet Word is GRANTED. [7071401-2].

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12164
Non-Argument Calendar
________________________
D.C. Docket No. 2:10-cv-01149-AKK

STACY LANET WORD,
Plaintiff-Appellant,
versus
AT&T,
Defendant,
BELLSOUTH TELECOMMUNICATIONS, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(August 13, 2014)

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Before TJOFLAT, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Stacy Word appeals the district court’s grant of summary
judgment 1 to Defendant-Appellee BellSouth Telecommunications (“BellSouth”)2
as to her complaint alleging: (1) retaliation in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and in violation of 42
U.S.C. § 1981; (2) discrimination on the basis of race and color, in violation of
Title VII and § 1981; (3) interference and retaliation in violation of the Family and
Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.; and (4) disability

1

Plaintiff’s Notice of Appeal identifies only the district court’s March 29, 2013
order, which denied Plaintiff’s Motion to Alter, Amend or Vacate Order granting summary
judgment to Defendant. However, both parties on appeal address only the district court’s grant
of summary judgment to Defendant. Because the arguments contained in Plaintiff’s Motion to
Alter, Amend or Vacate Order were intertwined with the arguments Plaintiff made in opposition
to summary judgment, and because Defendant does not argue that the omission of the summary
judgment order from the Notice of Appeal caused it any prejudice—indeed, Defendant does not
even mention Plaintiff’s omission—we treat Plaintiff’s Notice of Appeal as an appeal from the
summary judgment order. See Wainwright v. Sec’y, Dep’t of Corr., 537 F.3d 1282, 1284–85
(11th Cir. 2007) (concluding that this Court had appellate jurisdiction to review the district
court’s grant of summary judgment to the defendant, even though the plaintiff had designated in
his notice of appeal only the district court’s denial of his Rule 59(e) motion to alter or amend the
judgment, because the plaintiff’s arguments in his Rule 59(e) motion were intertwined with the
arguments he made in opposition to summary judgment, the plaintiff had no reason to appeal
only the denial of his Rule 59(e) motion, and the omission of the underlying judgment in his
notice of appeal did not cause the defendant any prejudice).
2

Word initially identified AT&T as her employer. However, because BellSouth
later entered an appearance, answered, and has since been treated as the proper party in interest,
only it will be referred to herein.
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discrimination in violation of the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq. 3 After careful review, we affirm.
I. 4
The record here shows that BellSouth used a four-step progressive discipline
process in which employees advanced through the following levels: (1) informal
discussion; (2) counseling; (3) warning; (4) suspension or letter in lieu of
suspension; and (5) termination. For employees, like Plaintiff, covered by
BellSouth’s collective bargaining agreement with the Communications Workers
Association (“CWA”), Defendant removed counseling entries from an employee’s
file after six months, warnings after twenty-four months, and all remaining entries
after thirty-six months if no intervening disciplinary action was taken.
As for attendance issues, Defendant’s written policy was to deal with
absenteeism problems on an individual employee basis with no fixed formula.
Instead, those supervisors closest to the problem were expected to handle
attendance issues by applying reasonable criteria and using discretion when taking
disciplinary action. It was also policy to consider an absence with no intervening
work time as one “occurrence.” If an absence was broken by work time, the
absences were considered separate “occurrences.” Company policy also instructed
3

Plaintiff-Appellant Stacy Word’s motion to file a reply brief out of time is

GRANTED.
4

As both parties on appeal have adopted the facts of the case as laid out by the
district court, the facts recounted here are adapted in large part from the district court’s opinion.
3

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that the most useful measurement of absenteeism was a percentage—the days
absent divided by the days scheduled.
Plaintiff worked as a BellSouth sales associate and progressed through each
level of discipline due to attendance-related issues until she was issued a letter in
lieu of suspension (“SL”) on June 23, 2008. She filed a union grievance
challenging the SL, and after a meeting between Plaintiff, a CWA representative,
and Plaintiff’s supervisor, her supervisor agreed on July 22, 2008, to remove the
SL within six months if Plaintiff maintained satisfactory attendance during that
time. Plaintiff then missed work on several occasions before her termination on
December 9, 2008. Plaintiff filed a grievance alleging that her supervisor failed to
timely advise her that she needed to submit a copy of a subpoena to excuse three of
her absences, during which she appeared in family court with her son.
On June 22, 2009, at the third level of the grievance process, a CWA
representative accepted Defendant’s offer to change Plaintiff’s termination into a
thirty-day suspension entry in BellSouth’s system, remove the SL from her
personnel file, and change two of her previous absences for court appearances to
“excused unpaid” absences. Plaintiff alleges that the CWA representative
explained to her that the thirty-day suspension was “administrative” to allow her to
retain her seniority and benefits, which Plaintiff claims she understood to mean
that the suspension would not count against her going forward. She returned to
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work on June 29, 2009, after having filed an Equal Employment Opportunity
Commission (“EEOC”) charge on June 4, 2009.
After returning to work, Plaintiff requested to use vacation time from August
3 to August 7 but did not submit a vacation request form because, she claims, she
was told that she was not yet in the system to be able to request vacation. Plaintiff
therefore called in each day of the entire week of August 3–7, 2009, to report that
she would miss work for personal reasons because she was moving to a new
apartment. After she called in the second day, an upper-level employee called the
CWA representative to inform him that Plaintiff had called in the last two days and
to request that he remind Plaintiff of the necessity of improving her attendance.
Plaintiff returned to work on August 10 and was terminated on August 12, 2009.
Plaintiff filed a grievance challenging the discharge, but the CWA declined to
arbitrate the grievance. Plaintiff then filed the present suit on May 3, 2010.
On appeal, Plaintiff argues that the district court erred in granting summary
judgment to Defendant on her retaliation and discrimination claims, her FMLA
interference and retaliation claims, and her ADA claim. She argues that Defendant
retaliated against her for filing an EEOC charge by terminating her after just one
attendance-related “occurrence” once she was reinstated. She also argues that
Defendant discriminated against her on the basis of her race and color, as
evidenced by the fact that Caucasian and lighter-skinned African-Americans who
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had been reinstated after termination were reinstated more quickly, were allowed
to use vacation time after reinstatement, and were allowed more attendance-related
“occurrences” before they were terminated a second time. Furthermore, she asserts
that Defendant interfered with her ability to take FMLA leave by ordering her back
to work before her FMLA leave expired and retaliated against her for taking
FMLA days by counting those absences against her to support disciplinary action.
Finally, Word maintains that her stress and anxiety prevented her from working
and that Defendant violated the ADA by denying her a reasonable accommodation.
We address each of her claims in turn, and we affirm the district court’s grant of
summary judgment to Defendant.
II.
“We review de novo a district court’s grant of summary judgment, viewing
all the evidence, and drawing all reasonable inferences, in favor of the non-moving
party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005).
However, the court is not required to credit the non-movant’s evidence if that
evidence is so inherently implausible or blatantly contradictory that no reasonable
juror could believe it. Scott v. Harris, 550 U.S. 372, 380, 127 S. Ct. 1769, 1776
(2007). We will affirm the court’s grant of summary judgment if no genuine issue
of material fact exists. Id. A fact is material only if it could affect the outcome of
the suit, and a dispute is genuine only if evidence exists that could cause a rational
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jury to return a verdict in favor of the non-movant. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). For factual issues to be
considered genuine, they must have a basis in the record. Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). Furthermore, “mere conclusions
and unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005).
III.
First, Plaintiff claims that Defendant retaliated against her for filing an
EEOC charge on June 4, 2009, by terminating her on August 12, 2009. Title VII
makes it unlawful for an employer to discriminate against an employee because the
employee “has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C.
§ 2000e-3(a). Section 1981 also encompasses retaliation claims, CBOCS West,
Inc. v. Humphries, 553 U.S. 442, 451, 128 S. Ct. 1951, 1958 (2008), and the
elements required to establish retaliation claims under § 1981 are the same as those
required for retaliation claims under Title VII. See Goldsmith v. Bagby Elevator
Co., 513 F.3d 1261, 1277 (11th Cir. 2008). To establish a prima facie case of
retaliation, a plaintiff must show that (1) he engaged in statutorily protected
conduct, (2) he suffered an adverse employment action, and (3) the adverse action
was causally related to the protected conduct. Id.
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If the plaintiff establishes a prima facie case of retaliation, the employer has
an opportunity to articulate a legitimate, nonretaliatory reason for the challenged
employment action. Id. If the employer does so, the plaintiff must show by a
preponderance of the evidence that the reason provided by the employer is pretext
for prohibited retaliatory conduct. Id. A plaintiff may show pretext by
demonstrating “such weaknesses, implausibilities, inconsistencies, incoherencies
or contradictions in [the employer’s] proffered legitimate reasons for its actions
that a reasonable factfinder could find them unworthy of credence.” Springer v.
Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1348 (11th Cir. 2007). “If
the proffered reason is one that might motivate a reasonable employer, a plaintiff
cannot recast the reason but must meet it head on and rebut it. Quarrelling with
that reason is not sufficient.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088
(11th Cir. 2004) (citation omitted).
Here, Defendant concedes for purposes of appeal that Plaintiff established a
prima facie case of retaliation, and Defendant has provided a legitimate,
nonretaliatory reason for discharging Plaintiff in August 2009—Plaintiff’s five
consecutive unexcused absences during the week of August 3–7, 2009, while at the
suspension level of the company’s progressive discipline process for prior
attendance violations. Therefore, the only issue remaining as to Plaintiff’s Title

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VII and § 1981 retaliation claims is whether Plaintiff met her burden of proving
that Defendant’s proffered reason for discharging Plaintiff was pretextual.
Plaintiff argues that she has demonstrated pretext by showing that Defendant
(1) treated her thirty-day suspension, which replaced her December 2008
termination, as administrative and yet counted it against her in its decision to move
to the next level of discipline—discharge—in August 2009, (2) advanced her to the
next level of discipline after only one “occurrence” while allowing other allegedly
similarly situated employees at least two “occurrences” before discharging them a
second time, and (3) offered inconsistent reasons for denying her vacation time for
the week of August 3–7, 2009, first allegedly telling her that she was not yet in the
system to be able to request vacation and then contending that vacation time was
not available that week due to other employees taking vacation.
Plaintiff’s evidence did not meet Defendant’s proffered reason “head on and
rebut it,” and she therefore failed to prove pretext. Id. Plaintiff’s argument that
Defendant told her that her suspension was administrative and would not count
against her in the disciplinary process finds no support in the record, and her
argument of pretext based on Defendant’s allegedly changing the suspension from
administrative to punitive in retaliation for her EEOC charge is likewise
unsupported by the record. Even if Plaintiff was told that the suspension was
administrative, she was told such by her CWA representative, not by Defendant,
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and there is no evidence that any reference to the suspension indicated that it
would not count against Plaintiff in the discipline process or that Plaintiff would be
reinstated with a clean disciplinary slate; rather, Plaintiff’s own deposition suggests
that the suspension was administrative only, if at all, in the sense that it allowed
Plaintiff to retain her seniority and benefits, which she would have lost if entered
into the company’s system as a new employee.
Moreover, Plaintiff did not establish that she was the only employee who
was ever advanced to the next level of discipline after only one “occurrence,” not
to mention that Plaintiff’s one “occurrence” in reality consisted of five consecutive
unexcused absences from work. Furthermore, BellSouth’s Attendance and
Punctuality Guidelines did not dictate the number of “occurrences” as the sole
measuring stick for determining when discipline was appropriate; rather, the
Guidelines placed the decision of when discipline for attendance-related infractions
was fitting under the managerial discretion of supervisors. Thus, challenging her
termination based on the fact that she only incurred one “occurrence” merely
quarrels with Defendant’s business decision and does not show pretext. Id.
Additionally, Plaintiff’s inability to use vacation time for the week of
August 3–7 does not show pretext because whether Defendant denied her vacation
because she was not in the system or because vacation was not available, the
denial, without more, does not show pretext. Even if Plaintiff was told that she
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could not take vacation until she was put into the system, Plaintiff also admitted
that she never filled out the proper paperwork to request vacation, and no
reasonable jury could find based on the evidence presented by Plaintiff that
Defendant retaliated against her by obstructing her use of vacation time. Thus,
Plaintiff did not demonstrate “such weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions” in Defendant’s proffered nonretaliatory reason for
terminating her such that a reasonable factfinder could find that the proffered
reason was pretextual. Springer, 509 F.3d at 1348. Defendant was therefore
entitled to summary judgment on Plaintiff’s retaliation claims.
IV.
Second, Plaintiff claims that Defendant discriminated against her on the
basis of her race and skin color in violation of Title VII and § 1981. Title VII
makes it unlawful for employers to “discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race [or] color.” 42 U.S.C. § 2000e-2(a)(1). Title VII
and § 1981 have the same requirements of proof and use the same analytical
framework, so it is appropriate to “explicitly address [a] Title VII claim with the
understanding that the analysis applies to the § 1981 claim as well.” Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

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Discrimination claims based on circumstantial evidence are evaluated under
the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973). Burke-Fowler v. Orange Cnty., 447 F.3d
1319, 1323 (11th Cir. 2006). To establish a prima facie case of discrimination
under that framework, a plaintiff may show that (1) she is a member of a protected
class, (2) she was subjected to an adverse employment action, (3) her employer
treated similarly situated employees outside of her protected class more favorably,
and (4) she was qualified to do the job. Id. If the plaintiff establishes a prima facie
case, the defendant must show a legitimate, non-discriminatory reason for its
employment action. Id. If it does so, the plaintiff must prove that the reason
proffered by the defendant is pretext for unlawful discrimination. Id.
To compare Plaintiff’s treatment with that of other employees outside of her
protected class, Plaintiff must show that she and her comparators “are similarly
situated in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997). In the disciplinary context, we consider whether the employees were
accused of the same or similar conduct and were disciplined in different ways.
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
No reasonable jury could find that Plaintiff’s comparators, two Caucasians
and two lighter-skinned African-Americans who were also reinstated after
termination and subsequently discharged a second time, were similarly situated to
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her in all relevant respects regarding their conduct. Plaintiff was terminated after
missing five consecutive days of work totaling approximately forty hours, while
three of her proffered comparators were terminated after multiple short absences
and tardies totaling less than three hours of missed work each. 5 Under Defendant’s
policy of measuring absenteeism by dividing days absent by days scheduled,
Plaintiff’s absenteeism rate was significantly higher than that of her comparators.
Therefore, even though Defendant’s attendance-reporting system counted
Plaintiff’s five-day absence as one “occurrence” and her comparators’ tardies and
short absences as multiple “occurrences,” the quality and quantity of her
comparators’ attendance infractions were not similar to the quality and quantity of
Plaintiff’s absences. Id. Thus, Plaintiff cannot show that her proffered
comparators were similarly situated to her for the purpose of establishing a prima
facie case of race or color discrimination. See Knight v. Baptist Hosp. of Miami,
Inc., 330 F.3d 1313, 1318 (11th Cir. 2003) (“In light of the entire record, [Plaintiff]
and [her comparator] are not similarly situated. [Plaintiff]’s documented
performance and tardiness problems were much worse than [her comparator]’s in
both number and nature.”).
Plaintiff also argues that her comparators were treated more favorably in the
reinstatement process in that they were reinstated more quickly and were allowed
5

As to the fourth comparator, no evidence in the record showed how many
absences he had before he was terminated a second time.
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to take vacation after reinstatement. However, the circumstances surrounding their
reinstatement differed significantly. For instance, one of the comparators was
reinstated after Defendant realized that an administrative error in his record had
caused him to be advanced one level too many in the disciplinary process, and
another comparator was reinstated after Defendant learned that the absence
resulting in his termination was prompted by the sudden death of his significant
other. As to vacation, Plaintiff’s comparator had worked for five months after
reinstatement before taking vacation, which provided him ample opportunity to
request vacation time and have his request approved, whereas Plaintiff only
worked for five weeks after her reinstatement before she was terminated again,
during which time she never filed a formal request for vacation. Because Plaintiff
was not similarly situated to her comparators in all relevant respects, no reasonable
jury could find that the differences surrounding their reinstatements or vacation
time showed discrimination. Thus, Plaintiff failed to establish a prima facie case
of race or color discrimination, and summary judgment was appropriate. See
Holifield, 115 F.3d at 1562 (“If a plaintiff fails to show the existence of a similarly
situated employee, summary judgment is appropriate where no other evidence of
discrimination is present.”).
Moreover, even if Plaintiff were able to establish that similarly situated
employees outside of her protected class were treated more favorably by
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Defendant, no genuine issue of material fact exists as to whether Defendant’s
proffered legitimate, nondiscriminatory reason for terminating Plaintiff was
pretextual for the same reasons explained in Part III, supra. In addition, Plaintiff’s
arguments that Defendant counted FMLA absences as unexcused and counted
absences due to court appearances against her fail to meet Defendant’s reason head
on and rebut it, as Plaintiff admitted in her deposition that she had several absences
in addition to any FMLA and court-related absences that justified Defendant
advancing her through the disciplinary process. 6 Thus, Defendant was entitled to
summary judgment on Plaintiff’s discrimination claims, as well.
V.
Third, Plaintiff claims that Defendant violated the FMLA by interfering with
her FMLA leave and by retaliating against her for taking such leave. The FMLA
provides that eligible employees are entitled to “12 workweeks of leave during any
12-month period . . . [b]ecause of a serious health condition that makes the
employee unable to perform the functions of the position.” 29 U.S.C.
§ 2612(a)(1)(D). The FMLA creates two types of claims to preserve and enforce
the rights it creates: “interference claims, in which an employee asserts that his
6

“We do not sit as a ‘super-personnel department,’ and it is not our role to secondguess the wisdom of an employer’s business decisions—indeed the wisdom of them is
irrelevant—as long as those decisions were not made with a discriminatory motive.” Alvarez v.
Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010); see also Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir.1984) (“[An] employer may fire an
employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at
all, as long as its action is not for a discriminatory reason.”).
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employer denied or otherwise interfered with his substantive rights under the Act,
and retaliation claims, in which an employee asserts that his employer
discriminated against him because he engaged in activity protected by the Act.”
Strickland v. Water Works & Sewer Bd. of Birmingham, 239 F.3d 1199, 1206
(11th Cir. 2001) (citations omitted). Plaintiff claims that Defendant interfered with
her FMLA leave by forcing her to return to work prior to the expiration of her
leave and that Defendant retaliated against her for taking FMLA leave by counting
FMLA absences against her when implementing discipline.
An FMLA interference claim requires a plaintiff to show by a preponderance
of the evidence that she was entitled to a benefit denied by the defendant. Id. at
1206–07. An employer may be held liable for interfering with FMLA rights even
if it did not intend to deny the benefit. Krutzig v. Pulte Home Corp., 602 F.3d
1231, 1235 (11th Cir. 2010). The only evidence supporting Plaintiff’s contention
that Defendant interfered with her FMLA leave by requesting that she return to
work before the expiration of her leave is Plaintiff’s own uncorroborated affidavit,
which references two exhibits that Plaintiff failed to submit. Because “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion,” Plaintiff’s affidavit, standing alone, was not enough
to survive Defendant’s motion for summary judgment. Ellis, 432 F.3d at 1326; see
also Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1161 (11th Cir.
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2006) (“A mere ‘scintilla’ of evidence supporting the opposing party’s position
will not suffice; there must be enough of a showing that the jury could reasonably
find for that party.”).
To succeed on an FMLA retaliation claim, an employee must demonstrate
that her employer intentionally discriminated against her in the form of an adverse
employment action for having exercised an FMLA right. Strickland, 239 F.3d at
1207. In the absence of direct evidence, we apply the McDonnell Douglas burdenshifting framework. Id. To establish a prima facie case of retaliation under the
FMLA, a plaintiff must show that (1) she engaged in statutorily protected conduct,
(2) she suffered an adverse employment action, and (3) there is a causal connection
between the protected conduct and the adverse employment action. Id. After the
plaintiff establishes a prima facie case, the employer must provide a legitimate,
nondiscriminatory reason for the adverse action. Schaaf v. Smithkline Beecham
Corp., 602 F.3d 1236, 1243 (11th Cir. 2010). If the employer does so, then the
plaintiff has the burden of proving that the reason was merely pretext for
retaliation. Id. at 1244.
No genuine issue of material fact exists here as to whether Defendant
retaliated against Plaintiff for taking FMLA leave. Plaintiff claims that Defendant
retaliated against her for taking FMLA leave by issuing an SL when she returned
to work from FMLA leave on January 11, 2008. However, Plaintiff testified in her
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deposition that she did not receive an SL in January 2008, and Defendant
introduced evidence that the letter in the record dated January 2008 was the
product of a clerical error and was misdated—it was actually the SL issued to
Plaintiff on June 8, 2008, but Plaintiff’s supervisor failed to change the date on the
template she used to craft the June 2008 SL. Additionally, if Plaintiff had been
issued such a letter in January 2008, she most likely would not have received
another one in June 2008, as she would have been past that disciplinary step, but
rather would have been advanced to termination. The letter dated January 11,
2008, in the record was, at most, a “mere ‘scintilla’ of evidence” supporting an
FMLA retaliation claim; it was therefore insufficient, standing alone, to survive a
motion for summary judgment. Brooks, 446 F.3d at 1162.
Furthermore, no reasonable jury could find that Plaintiff’s December 2008
termination was retaliatory, as Plaintiff admitted in her affidavit that she was
assured during her grievance hearing that her November 2008 FMLA days were
not a factor in that termination. The termination brief in Plaintiff’s file
corroborated that testimony in that it showed that her termination was based on
“occurrences” not including any FMLA absences. Similarly, no genuine issue of
material fact exists as to whether the SL issued to Plaintiff in June 2008 was
retaliatory, as no FMLA days were counted toward that disciplinary action.

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Therefore, Plaintiff failed to establish a prima facie case of FMLA retaliation, and
summary judgment was appropriate on both of Plaintiff’s claims under the FMLA.
VI.
Fourth, Plaintiff claims that Defendant violated the ADA by not providing a
reasonable accommodation for her disability. The ADA prohibits employers from
“discriminat[ing] against a qualified individual on the basis of disability 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). When an ADA discrimination claim is
based on circumstantial evidence, we apply the McDonnell Douglas burdenshifting framework, which requires a plaintiff to establish a prima facie case by
showing that (1) she has a disability, (2) she was otherwise qualified to perform the
job, and (3) she was discriminated against based upon the disability. Cleveland v.
Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004). Once the
plaintiff establishes a prima facie case, the employer must articulate a legitimate,
non-discriminatory reason for terminating the plaintiff. Id. If the employer does
so, the plaintiff is then left with the ultimate burden of proving that the employer
intentionally discriminated against her and that the proffered reason for the
termination was pretext for discrimination. Id.

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The ADA defines “disability” as: “(A) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(1). “Major life activities” include working. Id.
§ 12102(2)(A). No genuine issue of material fact exists as to whether Plaintiff had
a disability that substantially limited her ability to work. Both Plaintiff and her
supervisor testified that Plaintiff did not have job-performance issues; rather, she
only had attendance-related problems. Plaintiff also never requested
accommodation for a disability through the company’s formal accommodation
process, and there is no record of any impairment limiting her job performance.
Moreover, no reasonable jury could find that Plaintiff was regarded as
having a disability. Plaintiff argues that she was regarded as disabled by
Defendant because an upper-level employee agreed to help transfer Plaintiff from
her supervisor’s team after Plaintiff complained that the supervisor was tough on
her and caused her stress and anxiety. Plaintiff claims that she requested the
transfer as an accommodation for her disability. However, there is no evidence
indicating that the employee agreed to help move Plaintiff as an accommodation
for a disability as opposed to a simple resolution of a personality conflict. In
addition, any stress and anxiety Plaintiff suffered only interfered with her ability to
work with that supervisor, not with her ability to perform her job. Thus, because
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Plaintiff failed to show that she has a disability, she failed to establish a prima facie
case of discrimination under the ADA, and Defendant was entitled to summary
judgment on Plaintiff’s ADA claims, as well.
In sum, Plaintiff did not show a genuine issue of material fact as to any of
her claims, and summary judgment was proper. Accordingly, the order of the
district court granting summary judgment to Defendant is
AFFIRMED.

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