Michael Banim v. State of Florida Department of

Filing

Opinion issued by court as to Appellant Michael Banim. 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.

Case: 16-15401

Date Filed: 05/17/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15401
Non-Argument Calendar
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D.C. Docket No. 4:15-cv-00454-RH-CAS

MICHAEL BANIM,
Plaintiff-Appellant,
versus
STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL
REGULATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(May 17, 2017)
Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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Michael Banim appeals from the district court’s grant of summary judgment
in favor of his former employer, the State of Florida Department of Business and
Professional Regulation (“Department”), in his employment discrimination and
retaliation suit under the Rehabilitation Act, 29 U.S.C. § 794, and the Florida Civil
Rights Act, Fla. Stat. § 760.10. Banim argues that because the Department
rendered its accommodation for his physical impairment unreasonable by requiring
burdensome daily activity reports (“DARs”), the district court erred when it found
the Department sufficiently accommodated his disability. Next, Banim argues the
district court erred when it found that the DAR requirement was not a pretext for
discrimination. Finally, Banim argues the district court erred because it failed to
consider the evidence of pretext when it granted summary judgment on his
retaliation claim. 1
Banim failed to show the Department refused to accommodate his disability,
or the Department discriminated against him by requiring him to complete DARs.
Finally, Banim failed to show the Department terminated him in retaliation for
filing a discrimination charge rather than the legitimate business reason of

1

Before the district court, Banim also alleged age discrimination. However, he consented to
dismissal of that claim and it is not at issue on appeal.
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insubordination. Therefore, we affirm2 the district court’s grant of summary
judgment on all claims.
I.
Banin failed to show the Department refused to accommodate his disability.
Discrimination claims brought under the Rehabilitation Act are governed by the
same standards as those brought under the Americans with Disabilities Act
(“ADA”), and cases decided under one act are precedent for cases decided under
the other. 29 U.S.C. § 794(d); see Cash v. Smith, 231 F.3d 1301, 1305 & n.2 (11th
Cir. 2000). Similarly, discrimination claims under the FCRA are interpreted
pursuant to federal ADA case law. Fla. Stat. § 760.10(1)(a); see Ross v. Jim
Adams Ford, Inc., 871 So. 2d 312, 314 (Fla. Dist. Ct. App. 2004).
An employer can unlawfully discriminate against a disabled employee if it
does not reasonably accommodate the disability; however, an employer need not
accommodate a disability if it imposes undue hardship on the employer. Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). A
qualified employee is “not entitled to the accommodation of [his] choice, but only
to a reasonable accommodation.” Id. at 1285–86. An accommodation is

2

We review a district court’s grant of summary judgment de novo. Weeks v. Harden Mfg. Corp.,
291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is appropriate when the evidence,
viewed in the light most favorable to the nonmoving party, presents no genuine issue of material
fact and compels judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
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“reasonable” if it allows the employee to perform the essential functions of the job.
Lucas v. W.W. Gainger, Inc., 257 F.3d 1249, 1259–60 (11th Cir. 2001).
Here, the evidence showed that the Department reasonably accommodated
Banim’s disability by allowing him to work from home. Additionally, the
Department reasonably enforced the same DAR requirement for Banim that it
enforced for other employees under similar circumstances. No evidence exists that
Banim could not comply with the requirement, as he never attempted to comply.
Therefore, the district court did not err when it granted summary judgment on his
reasonable accommodation claim.
II.
The district court did not err by finding Banim failed to show the DAR
requirement was pretext for discrimination. We analyze Rehabilitation Act
discrimination claims under the McDonnell Douglas burden-shifting analysis
applied to Title VII employment discrimination claims. 3 See Stutts v. Freeman,
694 F.2d 666, 669 (11th Cir. 1983).
When analyzing pretext, the factfinder must determine whether the
employer’s proffered reasons were “a coverup for a . . . discriminatory decision.”
3

Under that framework, if a plaintiff-employee first establishes a prima facie case of
discrimination, and the defendant articulates a legitimate reason for its employment action, the
plaintiff must then offer evidence that the reason is pretextual. See Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004). If the plaintiff fails to show pretext, we will affirm the
grant of summary judgment on that ground. EEOC v. Total Sys. Servs., 221 F.3d 1171, 1177
(11th Cir. 2000).
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Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). Considering all the
evidence, the court must ascertain whether the plaintiff sufficiently cast doubt on
the defendant’s proffered non-discriminatory reasons to allow a reasonable
factfinder to find the defendant’s proffered “legitimate reasons were not what
actually motivated its conduct.” Silvera v Orange Cnty. Sch. Bd., 244 F.3d 1253,
1258 (11th Cir. 2001). In doing so, the court must evaluate whether the plaintiff
demonstrated “such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Combs v. Plantation
Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997) (quotation
omitted).
Here, Banim failed to show enforcing the DAR requirement was pretext for
discrimination. Assuming, as the district court did, that Banim made a prima facie
showing of his different treatment than other employees, his discrimination claim
failed. The Department articulated legitimate reasons for its actions, and Banim
failed to show that the legitimate reasons were pretext for disability
discriminations. Agency-wide restructuring and cost-saving plans justified asking
Banim to relocate. The evidence showed the Department established the
telecommuting policies and DAR requirement before Banim sought an
accommodation. Differences between the DAR required of Banim and the DAR
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required for other inspectors were minimal and simply based on differences in job
duties. The Department put forth legitimate, nondiscriminatory reasons for
requiring Banim to comply with those policies, and Banim presented no evidence
undermining the Department’s explanations. Therefore, the district court did not
err by granting summary judgment on the disparate treatment claim.
III.
The Department had a legitimate, non-retaliatory reason for terminating
Banim. 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 . . . under the [ADA].” 42
U.S.C. § 12203(a). The Rehabilitation Act provides the same protection. See 29
U.S.C. § 794(d).
To establish a prima facie case of retaliation, the plaintiff may show that
(1) he engaged in a statutorily protected expression, (2) he suffered an adverse
action, and (3) there was a causal link between the adverse action and his protected
expression. Lucas, 257 F.3d at 1260–61. “Once a prima facie case is established,
the burden then shifts to the defendant employer to come forward with legitimate
non-discriminatory reasons for its actions that negate the inference of retaliation.
The plaintiff must then demonstrate that it will be able to establish at trial that the
employer's proffered non-discriminatory reasons are a pretextual ruse designed to
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mask retaliation.” Stewart, 117 F.3d at 1287 (citation omitted). To show pretext,
the evidence must allow a reasonable factfinder to determine that the defendant’s
proffered “legitimate reasons were not what actually motivated its conduct.”
Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001) (quotation
omitted). We use implicit findings of a district court when such findings are
supported by the record and the district court’s explicit findings. See Goforth v.
Owens, 766 F.2d 1533, 1535 (11th Cir. 1985).
Here, while the district court did not explicitly find that Banim failed to
establish pretext, it implicitly did so by finding that the record showed that the
Department terminated Banim for insubordination–a legitimate, nondiscriminatory, non-retaliatory reason. See Goforth, 776 F.2d at 1535. The
evidence showed that the Department informed Banim he could be terminated for
failure to complete the DARs. Banim admitted in his deposition that he never
submitted a DAR as directed. The Department formally warned him that he could
be terminated if he did not correct his behavior. None of the evidence Banim put
forth to show pretext would have allowed a reasonable factfinder to conclude that
he was terminated for any reason other than insubordination and failure to comply
with orders. Therefore, the district court did not err by granting summary
judgment to the Department on the retaliation claim.
AFFIRMED.
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