                    Case: 11-12592         Date Filed: 09/04/2012   Page: 1 of 6

                                                                        [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-12592
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 1:09-cv-02748-RLV



NORMAN TOLAND, JR.,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellant,


                                                 versus

AT&T,
BELLSOUTH TELECOMMUNICATIONS, INC.,

llllllllllllllllllllllllllllllllllllllll                               Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (September 4, 2012)

Before TJOFLAT, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:

       Norman Toland, proceeding pro se, appeals from the district court’s grant of

summary judgment in favor of AT&T and BellSouth (together, “BellSouth”) in his

disability discrimination suit under the Americans with Disabilities Act (“ADA”),

42 U.S.C. § 12101 et seq. On appeal, Toland argues that the district court erred by

finding that he was not a qualified individual because possessing a commercial

driver’s license (“CDL”) was not an essential function of the outside plant

technician (“OPT”) job. Toland contends that because neither the Loss of Driver’s

License Policy nor the OPT job description expressly state that a CDL is required,

having a CDL is not an essential job function. Toland contends that he was

actually fired because of a disability, as evidenced by his supervisor once referring

to him as a “cripple.”1

       We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the non-moving party. Holly v.

Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007). Summary

judgment is appropriate when the evidence before the court demonstrates that

“there is no genuine dispute as to any material fact and the movant is entitled to


       1
               This is the only argument properly on appeal. We consider only those arguments
raised in an appellant’s initial brief. Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir.
1994).

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judgment as a matter of law.” Fed. R. Civ. P. 56(a).

       The ADA provides that “[n]o covered entity shall discriminate against a

qualified individual on the basis of disability in regard to job application

procedures, the hiring, advancement, or discharge of employees . . . and other

terms, conditions, and privileges of employment.”2 42 U.S.C. § 12112(a). We

analyze Toland’s ADA claim under the McDonnell Douglas burden-shifting

analysis that is applied to Title VII claims.3 Holly, 492 F.3d at 1255. To

successfully state a claim under this framework, Toland must first establish a

prima facie discrimination case, meaning he must show: “(1) he is disabled;4 (2) he

is a qualified individual; and (3) he was subjected to unlawful discrimination

because of his disability.” Id. at 1255-56.

       A “qualified individual” is “someone with a disability who, with or without

reasonable accommodation, can perform the essential functions of the employment

       2
               BellSouth does not dispute that it is a “covered entity.”
       3
                We use the McDonnell Douglas framework here because there is no direct
evidence, which is composed of “only the most blatant remarks, whose intent could be nothing
other than to discriminate.” Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989). Even
if the comment that Toland was a “cripple” were such a blatant remark, Toland has not
challenged the district court’s conclusion that there is no evidence that the supervisor who said
the statement was actually involved in the decision to terminate Toland. See Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (noting that “remarks by
non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct
evidence of discrimination”).
       4
               BellSouth conceded below that Toland is disabled.

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position that such individual holds or desires.” Id. at 1256 (quotation omitted).

Essential functions are the fundamental job duties of a position that an individual

with a disability is actually required to perform. Id. at 1257. If a disabled

individual is unable to perform an essential function of the job even with a

reasonable accommodation, he is not a “qualified individual” and cannot establish

a prima facie case under the ADA. Id. at 1256.

        Whether a particular job duty is an essential function is evaluated on a

case-by-case basis. Id. at 1258. We give substantial weight to the employer’s

judgment as to what functions of a position are essential. Id.

        In this case, the district court correctly granted BellSouth’s motion for

summary judgment because Toland was not qualified for the OPT position. It is

undisputed that the ability to climb telephone polls and to drive a vehicle are both

essential functions of an OPT.5 Toland acknowledged that even after surgery on

his shoulder and even with accommodation, he still would not be able to climb a

pole.

        As for driving a vehicle, Toland conceded that his doctor restricted him

from driving any vehicles for at least nine months. BellSouth offered to let Toland

ride along and supervise individuals who were training to obtain their own CDLs.


        5
              See Dkt. 42 at 40-41; id. Exh. 1 at 1-2.

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However, Toland could do these ride-alongs only if he had a valid CDL at the

time–which he did not.

       The parties dispute whether the district court correctly concluded that

possessing a CDL is an essential function of being an OPT. Toland insists that it

is not. However, we need not settle this dispute because even if Toland were

correct, he still could not perform all of the essential functions of an OPT (i.e.,

climbing a pole or physically driving a truck), even with reasonable

accommodation.6

       Because Toland could not perform these essential functions even with

reasonable accommodations, he cannot show that he is a qualified individual. See

id. at 1256-58. Therefore, Toland is unable to establish a prima facie case under

the ADA, and we affirm the district court’s grant of BellSouth’s motion for

summary judgment.7


       6
                We can affirm on any ground supported by the record. Bircoll v. Miami-Dade
Cnty., 480 F.3d 1072, 1088 n.21 (11th Cir. 2007). We note that the magistrate’s report and
recommendation, which the district court adopted except for a minor portion irrelevant to this
appeal, similarly concluded that even if a CDL were not required to be an OPT, there were still
other essential functions that Toland could not perform even with reasonable accommodation.
       7
               To the extent that Toland contends he could have been transferred to desk
positions at BellSouth, we note that he never applied for any other jobs at BellSouth. He also has
not challenged on appeal the district court’s conclusion that the staffing of these positions is
controlled by seniority via a collective bargaining agreement. See Davis v. Fla. Power & Light
Co., 205 F.3d 1301, 1306 (11th Cir. 2000) (“The ADA does not require accommodations . . . that
contravene the seniority rights of other employees under a collective bargaining agreement.”).

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AFFIRMED.




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