Katrina Bagwell v. Morgan County Commission

Filing

Opinion issued by court as to Appellant Katrina Bagwell. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15274
Non-Argument Calendar
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D.C. Docket No. 5:14-cv-00464-CLS

KATRINA BAGWELL,
Plaintiff-Appellant,
versus
MORGAN COUNTY COMMISSION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 18, 2017)
Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Katrina Bagwell appeals the district court’s grant of summary judgment in
favor of Morgan County Commission (“the County”) in her employment
discrimination lawsuit brought under the Americans With Disabilities Act
(“ADA”), 42 U.S.C. §§ 12112 and 12203(a), and Section 504 of the Rehabilitation
Act of 1974 (“Rehabilitation Act”), 29 U.S.C. § 794. On appeal, Bagwell argues
that the district court erred by granting summary judgment to the County on her
reasonable accommodation claim, “regarded-as” disabled discrimination claim,
and her retaliation claim. After a thorough review of the record, consideration of
the parties’ briefs, and the applicable law, we affirm.
I. Reasonable Accommodation Claim
Bagwell contends that the district court erred by finding that the “essential
functions” of her groundskeeper job included all of the duties listed on the
County’s job description. Additionally, she asserts that she could perform the
“essential functions” of the groundskeeper position with or without a reasonable
accommodation.
We review de novo a summary judgment determination, viewing all
evidence in the light most favorable to the non-moving party. Ellis v. England,
432 F.3d 1321, 1325 (11th Cir. 2005). Summary judgment is appropriate where
there is no genuine issue of material fact. Id. The non-moving party cannot show
a genuine issue of material fact through “mere conclusions and unsupported factual
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allegations,” such as “statements in affidavits that are based, in part, upon
information and belief.” Id. at 1326. Rule 56 mandates the entry of summary
judgment, upon motion, against a party who fails to make a showing sufficient to
establish an element essential to his case on which he bears the burden of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“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.’” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.
2001) (citing 42 U.S.C. § 12112(a)). To state a prima facie claim for failure to
accommodate under the ADA, the plaintiff must show that: (1) she is disabled; (2)
she is a qualified individual; and (3) she was discriminated against by way of the
defendant’s failure to provide a reasonable accommodation. Id. “The plaintiff
bears the burden of identifying an accommodation, and of demonstrating that the
accommodation allows [her] to perform the job’s essential functions.” Id. at 1255–
56. The same standards govern discrimination claims brought under the
Rehabilitation Act as those brought under the Americans with Disabilities Act
(“ADA”), and cases decided under one act provide precedent for cases decided

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under the other. 29 U.S.C. § 794(d); Cash v. Smith, 231 F.3d 1301, 1305 n.2 (11th
Cir. 2000).
A qualified individual with a disability is “an individual 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).
The plaintiff, in other words, “must show either that [s]he can perform the essential
functions of h[er] job without accommodation, or, failing that, show that [s]he can
perform the essential functions of h[er] job with a reasonable accommodation.”
Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000). “Thus, if
[the plaintiff] is unable to perform an essential function of h[er] . . . job, even with
an accommodation, [s]he is, by definition, not a qualified individual and, therefore,
not covered under the ADA.” Id. (quotation omitted).
First, we determine the “essential functions” of a job. We evaluate whether
a function is essential on a case-by-case basis. Earl v. Mervyns, Inc., 207 F.3d
1361, 1365 (11th Cir. 2000). An essential function is a fundamental job duty of a
position. 29 C.F.R. § 1630.2(n)(1). A function may be essential because the
position exists to perform that function, a limited number of employees can
perform the function, or the function is highly specialized and requires expertise.
Id. § 1630.2(n)(2). In determining if a task is an essential function, relevant
evidence may include: (1) the employer’s judgment as to what functions are
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essential, (2) a written job description, (3) the amount of time spent on the job
performing the function, (4) the consequences of not requiring the employee to
perform the function, (5) the terms of a collective bargaining agreement, (6) the
work experience of past employees in the position, and (7) the current work
experience of employees in similar jobs. Id. § 1630.2(n)(3). In particular, we give
substantial weight to an employer’s judgment as to which functions are essential.
Holly v. Clairson Industries, L.L.C., 492 F.3d 1247, 1258 (11th Cir. 2007).
For example, in Holbrook v. City of Alpharetta, Ga., we held that two of a
police detective’s job functions—driving an automobile and collecting certain
kinds of evidence—were “essential functions” of the detective position. Holbrook
v. City of Alpharetta, Ga., 112 F.3d 1522, 1527–28 (11th Cir. 1997). The plaintiff,
a blind detective, argued that the field work his disability prevented him from
performing, such as driving or collecting certain evidence occurred rarely in
Alpharetta, such that the job functions were not “essential.” Id. at 1527. We
rejected that argument, stating that the record showed that “it is not possible to
anticipate, in every instance, precisely what evidence will need to be collected and
what duties will need to be performed in any given investigation.” Id.
Next, we determine whether a reasonable accommodation exists that
“enables the employee to perform the essential functions of the job.” Lucas, 257
F.3d at 1255. An employer must provide such a reasonable accommodation for an
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employee with a known disability, unless it would result in undue hardship. Id.
Moreover, the plaintiff bears the burden of identifying a reasonable
accommodation. Id. The employer’s duty to provide a reasonable accommodation
is not triggered unless the plaintiff makes a specific demand for an
accommodation. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361,
1363 (11th Cir. 1999).
Reasonable accommodations may include: “job restructuring, part-time or
modified work schedules, reassignment to a vacant position, acquisition or
modification of equipment or devices, appropriate adjustment or modifications of
examinations, training materials or policies, the provision of qualified readers or
interpreters, and other similar accommodations for individuals with disabilities.”
42 U.S.C. § 12111(9)(B). An employer is not required to re-allocate job duties in
order to change the essential function of the job or remove another employee from
a position in order to accommodate a disabled employee. Earl, 207 F.3d at 1367;
Lucas, 257 F.3d at 1256. An employer may be required to restructure a particular
job by altering or eliminating marginal functions, but an employer is not required
to transform a position into another one by eliminating essential functions. Lucas,
257 F.3d at 1260.
For example, in Holbrook, the detective suggested that a “minor
‘reshuffling’” of case assignments was a “reasonable accommodation” that allowed
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him to perform all of the essential functions of a police detective. Holbrook, 112
F.3d at 1528. We rejected the argument, stating that “being prepared to respond to
unexpected events” defined a detective. Id. Thus, Alpharetta was not legally
required to provide such an accommodation. Id. However, we added that it did
not mean to “imply that an employer invariably is absolved from having to make
reasonable accommodations for a disabled employee whenever a given job
involves any measure of unpredictability.” Id. at 1528 n.4.
Lastly, the regulations governing the ADA provide that, to determine the
appropriate reasonable accommodation, an employer may need “to initiate an
informal, interactive process with the individual with a disability in need of an
accommodation” to identify the person’s limitations and potential reasonable
accommodations. 29 C.F.R. § 1630.2(o)(ii)(3). However, where the employee
fails to identify a reasonable accommodation, the employer has no affirmative duty
to engage in an “interactive process” or to show undue hardship. Earl, 207 F.3d at
1367. For example, in Earl, we held that an employee’s request to arrive at work
at any time, without reprimand, was not a request for a reasonable accommodation
because it changed the essential functions of the job, including punctuality. Id. at
1366–67. Because the employee failed to identify a reasonable accommodation,
the employer was under no duty to engage in an interactive process or to show
undue hardship. Id. at 1367.
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Here, the district court did not err by finding that the essential functions of
the groundskeeper position included all of those activities listed in the County’s
written job description. Although Bagwell contends a material dispute of fact
exists because the groundskeeper position in practice involved far fewer essential
functions than the written job description, her argument merely asserts that the
district court inappropriately weighed the legal factors for determining the
“essential functions.” For example, the County does not dispute Bagwell’s
assertion that some of the job functions listed on the job description were rarely
performed. Likewise, Bagwell does not dispute the text of the written job
description or the County’s assertion that the groundskeeper position exists to
“maintain” West Park. Accordingly, there is no dispute that the job could entail
any function needed to maintain the park, which included, but was not limited to,
all of the functions listed in the written job description, as well as the job functions
mentioned by Bagwell.
Additionally, the district court did not err in weighting the factors when
determining whether these job functions were “essential” as a matter of law. The
court gave appropriate deference to Bagwell’s assertion that some of the functions
were rarely performed, as well as the County’s own view of the job functions. See
Holly, 492 F.3d at 1258. Thus, although Bagwell described her position as one
mainly focused on cleaning bathrooms and removing trash, it is clear that the
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County expected the person in the position to be capable of performing any
number of tasks when needed, including all of the tasks listed on the County’s
written job description. See 29 C.F.R. § 1630.2(n)(2). Moreover, Bagwell failed
to present any evidence contradicting the County’s expectations for the position
beyond her own envisioning of the groundskeeper job. Accordingly, the district
court did not err by finding that the “essential functions” of Bagwell’s job included
all of those functions listed in the written job description.
Likewise, the district court did not err by finding that Bagwell was unable to
perform the essential functions of the groundskeeper position with or without
reasonable accommodation. First, even considering all of the reasonable
accommodations suggested by Bagwell throughout this litigation, she could not
perform the essential functions of the position. The essential functions required
traversing uneven and wet surfaces, standing, and walking, which Bagwell could
not perform safely and consistently, even with the assistance of an ATV. Bagwell
can only tolerate walking and standing for one-third of the day. Although rotating
between sitting, walking, and standing increases Bagwell’s tolerance, the nature of
the groundskeeper position required the employee’s duties to shift based on West
Park’s specific needs. Accordingly, it would be unreasonable to require the
County to ensure Bagwell could rotate between those activities every day. See
Holbrook, 112 F.3d at 1528.
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While Bagwell asserted that several of the functions requiring the most
significant accommodations for her disability, such as construction work, were
rarely performed, Bagwell and the County agreed that the most problematic
functions were those performed regularly. For example, Bagwell did not dispute
that repeated actions led to swelling or pain in her knee, and that a significant part
of her job involved cleaning bathrooms, picking up trash and tree limbs, and
traversing the park daily—all repetitive actions. On some days, Bagwell may have
been able to clean the park’s bathrooms and pick up trash, conducting all of the
maintenance and functions of the job. However, on a different day, the stamina
and endurance issues with Bagwell’s right leg could limit her ability to perform
those same functions, as well as introduce additional safety issues on wet surfaces
given her reduced ability to balance. Moreover, poor weather or other outdoor
conditions outside the County’s control could introduce additional issues
exacerbating Bagwell’s reduced balance. While some accommodations, such as an
ATV and adaptive equipment, would reduce Bagwell’s endurance and balance
related deficits, the common, repetitive functions of the groundskeeper position
could not be accommodated.
Finally, groundskeeping staff could be presented with a novel maintenance
issue that Bagwell could not perform at all. In such a situation, the County would
be forced to make a significant accommodation, requiring a co-groundskeeper or
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hiring a third-party service to complete the work. These accommodations are
unreasonable because the groundskeeper position exists to perform such work, and
the accommodation would undermine the reason for the position’s existence. See
Holbrook, 112 F.3d at 1528.
Thus, the district court did not err by granting summary judgment in favor of
the County on Bagwell’s reasonable accommodation claim, as Bagwell failed to
articulate a prima facie case of disability discrimination. Additionally, Bagwell
did not establish that she was a “qualified individual” because she did not show
that she could perform the “essential functions” of the groundskeeper position at
West Park with or without a “reasonable accommodation.”
II. “Regarded-as” Disabled Claim
Bagwell also contends that the district court erred by granting summary
judgment in favor of the County on her “regarded-as” disabled claim. She asserts
that her supervisor improperly regarded her as disabled, such that her termination
was discriminatory.
Similar to the framework for evaluating a claim based on an actual
disability, to succeed on a perceived disability claim, a plaintiff must show that (1)
the employer regarded her as having a disability; (2) she was “qualified”; and (3)
she was discriminated against because of her perceived disability. Sutton v. Lader,
185 F.3d 1203, 1207-08 (11th Cir. 1999).
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Here, the district court did not err in concluding that Bagwell failed to make
a prima facie claim of “regarded-as” discrimination. The district court correctly
found that Bagwell was not a “qualified individual,” such that she could not
recover regardless of whether her supervisor perceived her to be disabled.
III. Retaliation Claim
Lastly, Bagwell argues that the district court erred by granting summary
judgment in favor of the County on her retaliation claim. Bagwell asserts that she
could establish discriminatory retaliation because she was terminated merely a day
after requesting a reasonable accommodation.
To establish a prima facie case of discriminatory retaliation under the ADA,
a plaintiff must show that: (1) she participated in a protected activity; (2) she
suffered an adverse employment action; and (3) there was a causal connection
between the plaintiff’s participation in the protected activity and the adverse
employment action. See Frazier-White v. Gee, 818 F.3d 1249, 1258 (11th Cir.
2016).
Bagwell failed to show evidence of a causal connection between the
protected activity—her request for accommodation—and the adverse employment
action. The County began termination proceedings prior to Bagwell’s request for
accommodation at her termination hearing. Bagwell’s argument that the

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termination was in anticipation of a request for accommodation is speculative and
unsupported by any evidence in the record.
The district court did not err by granting summary judgment in favor of the
County on Bagwell’s retaliation claim. Bagwell did not demonstrate that she was a
“qualified individual” under the ADA and the Rehabilitation Act because she
failed to demonstrate the existence of a reasonable accommodation that would
allow her to perform the “essential functions” of her job as groundskeeper.
Furthermore, Bagwell failed to show evidence of a causal connection between her
request for an accommodation, the protected activity, and the adverse employment
action, because the County began termination proceedings prior to Bagwell’s
request for an accommodation and Bagwell showed no evidence that such
termination anticipated a request for accommodation.
AFFIRMED.

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