Gloria ABRAM, Plaintiff-Appellant, v. FULTON COUNTY GOVERNMENT, Defendant-Appellee.
No. 14-11550
United States Court of Appeals, Eleventh Circuit.
Jan. 29, 2015.
Non-Argument Calendar.
Gloria Abram, Decatur, GA, pro se.
Sandy R. Burney, Kaye Woodard Burwell, Lanna Renee Hill, Nwakaego Nkumeh, R. David Ware, Fulton County Attorney‘s Offiсe, Atlanta, GA, for Defendant-Appellee.
Before MARCUS, WILLIAM PRYOR, and EDMONDSON, Circuit Judges.
PER CURIAM:
Gloria Abram, proceeding pro se, appeals the district court‘s grant of summary judgment for the Fulton County Government (“Fulton County“) on her claims that Fulton County denied a number of her requests for accommodation, in violation of Title I of the Americans with Disabilities Act,
Briefly stated, Abram argues (1) that the district court erred in concluding that she failed to satisfy the statutory filing requirements for all but one of her claims and, alternatively, that the court erred by declining to toll equitably the statutory limitations period; (2) that the district
(1)
On appeal, Abram argues that, pursuant to Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407 (11th Cir. 1998), the applicable statute of limitations in this case is twо years. See Everett, 138 F.3d at 1409-10 (holding that, for claims brought in federal courts in Georgia under Title II of the ADA, which does not contain a statute of limitations, the applicable limitations period is two years, pursuant to Georgia‘s personal injury statute of limitations). In addition, Abram argues that the district court erred by not applying the continuing violations doctrine bеcause the record demonstrated that Fulton County had denied her requests for accommodations from December 2006 through March 2009 and that the denials were frequent and recurring. In addition, Abram contends that she did not fail to exhaust administrative remedies on claims stemming from Fulton County‘s acts in 2006 and 2007 because those claims were reasonаbly related to the claims she alleged in the charges she filed with the Equal Employment Opportunity Commission (“EEOC“) on 24 March 2008 and 11 August 2009.
Abram alternatively argues that the district court erred by not equitably tolling the statutory limitations period. In sole support of her equitable tolling contention, she asserts (for the first time: on appeal) that, from 15 October 2007 through 26
We review a district сourt‘s grant of summary judgment de novo, applying the same legal standards used by the district court. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). We view the evidence and draw all factual inferences therefrom in the light most favorable to the non-moving party. Id. at 1242-43. We liberally construe pro se filings. See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the аffidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also
Title I of the ADA prohibits discrimination on the basis of disability for job application procedures; hiring, advancement, or discharge of employees; compensation; job training; and other terms, conditions, and privileges of employment.
Federal courts historically have applied the continuing-violation doctrine to permit a plaintiff to recover on an otherwise time-barred claim, where at least one of the violations she alleges occurred within the statutory limitations period. See Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1221-22 (11th Cir. 2001). But, in Nat‘l R.R. Passenger Corp. v. Morgan, the Supreme Court clarified that
Discrete acts include “termination, failure to promote, denial of transfer, or refusal to hire,” each of which is easy to identify. Id., 536 U.S. at 114, 122 S.Ct. at 2073; see also Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 970, 972-978 (11th Cir. 2008) (concluding that employer‘s refusal to promote plaintiffs to vacant supervisory positions, denial of their requеsts for light work assignments, and alleged retaliation against them for filing EEOC charges constituted discrete acts). In Morgan, the Supreme Court distinguished discrimination and retaliation claims based on a series of discrete acts from hostile-work-environment claims; the Court concluded that, where the plaintiff raises a hostile-work-environment claim,
In Morgan, the Supreme Court noted that courts may equitably toll the limitations period in
We review de novo a district court‘s legal determination about the availability of equitable tolling. Bhd. of Locomotive Eng‘rs & Trainmen Gen. Comm. of Adjustment CSX Transр. N. Lines v. CSX Transp., Inc., 522 F.3d 1190, 1194 (11th Cir. 2008). We review the district court‘s application of the law to the facts for abuse of discretion. Id. In general, we will not review issues—particularly fact-bound issues—not presented to the district court, and on which the district court did not have an opportunity to make factual findings. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004). We ordinarily treat as abandoned an issue that a party fails to raise prominently on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2014).
As an initial matter, Abram is incorrect that Georgia‘s personal injury statute of limitations applies in this case: Title I of the ADA incorporates the filing requirements, including the statute of limitations, in
The district court correctly concluded that the continuing violations doctrine was inapplicable in this case because Abram did not raise a hostile-work-environment claim; and all of her claims, each of which alleged a specific instance of Fulton County‘s failure to grant her requested accommodations, involved discrete acts of alleged discrimination. See Morgan, 536 U.S. at 105, 114, 122 S.Ct. at 2068, 2073. We decline to consider Abram‘s appeal of the district court‘s failure to toll equitably the limitations period because the only argument she offers on appeal was not before the district court. See Access Now, 385 F.3d at 1331-32. Abram has waived the arguments she presented to the district court by failing to raise them on appeal. See Sapuppo, 739 F.3d at 681-82.
(2)
On appeal, Abram argues that the record contained evidence supporting a finding that her physical presence was not an essential function of her position and that her request to wоrk from home was reasonable. She argues that (1) the job description for the Administrative Coordinator I position did not list greeting visitors or physical presence as essential functions; (2) Fulton County allowed employees to telework under its flex-time and compressed work-week policies; (3) Fulton County had many employees who regularly covered the front desk, among whom front-desk duties could have been distributed; (4) Fulton County had a practice of hiring temporary employees to cover the front desk, as needed; (5) Abram spent only a small amount of time at the front desk, and she was not scheduled to cover the front desk on a daily basis; and (6) working at the front desk did not require specialized skills or expertise.
The burden shifting analysis of Title VII employment discrimination claims is partially applicable to ADA claims. See Holly v. Clairson Industries, L.L.C., 492 F.3d 1247, 1255, 1262 (11th Cir. 2007). As such, once the plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the employer to demonstrate undue hardship. See id. at 1255-56, 1262. Unlike in Title VII cases, hоwever, the plaintiff has no subsequent burden to demonstrate pretext. Id. at 1262.
To establish a prima facie case of discrimination under the ADA, a plaintiff must show that she (i) is disabled; (ii) is a qualified individual; and (iii) was subjected to unlawful discrimination because of her disability. Holly, 492 F.3d at 1255-56. A “qualified individual” is someone who can perform the essential functions of her job, with or without reasonable accommodation.
A reasonable accommodation means a modification or adjustment to the work environment, or the manner or circumstances under which the work is customarily performed, that enables a qualified person to perform the essential functions of her position.
Discrimination against a qualified individual includes the failure to make a reasonable accommodation to the known physical or mental limitations of the individual, unlеss the accommodation would cause the employer undue hardship.
The district court correctly concluded that a reasonable jury would have been compelled to find that Abram‘s physical presence at the front desk was an essential function of her position and that her request to work from home (where she would not have been able to perform this essential function of her position), was for no reasonable accommodation. Fulton County asserted that Abram‘s physical presence at the front desk was an essential function of her position, and it supported its assertion with an affidavit from Abram‘s direct supervisor containing testimony to that effect. Under the ADA, the district court was required to consider Fulton County‘s judgment about the essential functions of Abram‘s position.
Contrary to Abram‘s contentions on appeal, the record did not contain evidence that Fulton County allowed its employees, particularly those who served as front-desk receptionists, to telework or that Fulton Cоunty had a practice of hiring temporary workers to cover the front desk. In addition, Abram‘s own evidence (including front-desk schedules from December 2006
(3)
Abram argues that the district сourt erred in concluding that she presented her constructive discharge claim for the first time in her brief in opposition to Fulton County‘s motion for summary judgment. She maintains that she raised the constructive discharge claim in her complaint by way of her allegations that her working environment had become so intolerable that she was forcеd to resign and that she was forced to resign due to Fulton County‘s failure to accommodate her disability. She also argues that the district court erred in alternatively determining that she failed to establish a prima facie case of constructive discharge.
Even if Abram had pleaded a constructive discharge claim, she failed to еxhaust administrative remedies for the claim because she did not first present it to the EEOC. See
Accordingly, the district court‘s grant of summary judgment for Fulton County on all of Abram‘s claims is AFFIRMED.
James Eric JONES, Petitioner-Appellant, v. WARDEN, FCC COLEMAN-USP I, Respondent-Appellee.
No. 14-11182
United States Court of Appeals, Eleventh Circuit.
Jan. 29, 2015.