              Case: 17-10338   Date Filed: 02/21/2018   Page: 1 of 13


                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-10338
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 4:15-cv-00325-RH-CAS

STANLEY SNEAD,

                                                                  Plaintiff-Appellee,

                                      versus

FLORIDA AGRICULTURAL AND MECHANICAL UNIVERSITY BOARD OF
TRUSTEES,

                                                            Defendant-Appellant.

                          ________________________

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

                               (February 21, 2018)

Before ROSENBAUM, JORDAN, and WILSON, Circuit Judges.

PER CURIAM:

        Appellee Stanley Snead was a campus police officer at the Florida

Agricultural and Mechanical University from May of 2005 until December of

2013.    In August of 2013, under the supervision of a new police chief, the
             Case: 17-10338     Date Filed: 02/21/2018   Page: 2 of 13


department changed its officers’ work schedules.         Whereas under the prior

supervision, officers were scheduled to work eight-hour shifts, under the new

chief, officers were scheduled to work for twelve hours at a time (though one shift

every pay period remained eight hours long). Snead tried working these new shifts

for a while but soon found himself experiencing symptoms related to high blood

pressure. After his doctor identified the twelve-hour shifts as the culprit, Snead

requested to work shorter shifts.    The department refused, and Snead retired.

Snead then sued the university’s Board of Trustees, the appellant in this case

(“FAMU”), under the Americans with Disabilities Act (“ADA”), claiming that the

university effectively forced him into retirement by refusing to provide him with a

reasonable disability accommodation.

      The district court held a jury trial lasting two days. After Snead put on all

his evidence, FAMU moved for judgment as a matter of law, arguing that Snead

had failed to put on any evidence (1) that twelve-hour shifts were not an “essential

function” of his job, and (2) that the accommodation he requested was reasonable.

According to FAMU, Snead had “not provided any evidence whatsoever” to show

that twelve-hour shifts were not a required part of the job, nor had he shown that




                                         2
               Case: 17-10338        Date Filed: 02/21/2018      Page: 3 of 13


reverting to eight-hour workdays was a reasonable accommodation under FAMU’s

new scheduling regime. 1

       The district court took the motion under advisement and let the case go to

the jury. The jury found FAMU liable for violating the ADA and awarded Snead

$142,268.00 for “lost wages and benefits” and $108,810.00 for “mental and

emotional anguish.”        The court then denied FAMU’s outstanding motion for

judgment as a matter of law. On appeal, we must decide whether that was correct.

                                               I.

       We review de novo a district court’s decision to deny judgment as a matter

of law.    Pickett v. Tyson Fresh Meats, Inc., 420 F.3d 1272, 1278 (11th Cir. 2005).

A district court should grant judgment as a matter of law when the plaintiff

“presents no legally sufficient evidentiary basis for a reasonable jury to find for

him on a material element of his cause of action.” Id. Otherwise, the motion

should be denied. Id. We must construe the evidence in the light most favorable

to the non-moving party. Carruthers v. BSA Advertising, Inc., 357 F.3d 1213,

1215 (11th Cir. 2004).

       Snead’s claim arises under the ADA, which provides that employers shall

not discriminate against a qualified employee based on that person’s disability. 42


       1
         Because of the trial court’s break schedule, FAMU presented these arguments after both
sides had finished putting on all their evidence. The judge told the parties that he would “treat
the motion as renewed now at the close of all the evidence.” Neither side objected.
                                               3
               Case: 17-10338   Date Filed: 02/21/2018    Page: 4 of 13


U.S.C. § 12112(a). An employer violates the ADA if it fails “to make reasonable

accommodation for an otherwise qualified disabled employee . . . .” D’Angelo v.

ConAgra Foods, Inc., 422 F.3d 1220, 1225-26 (11th Cir. 2005) (citing 42 U.S.C.

§ 12112(b)).    To establish a failure to accommodate, the employee “must

demonstrate that (1) he has a disability, (2) he is a ‘qualified individual,’ which is

to say, able to perform the essential functions of the employment position that he

holds or seeks with or without reasonable accommodation, and (3) the [employer]

unlawfully discriminated against him because of the disability.” D’Angelo, 422

F.3d at 1226 (internal quotation marks omitted).

      The ADA defines a “qualified individual” as someone with a disability

“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). “Essential functions” are the “fundamental job duties of a

position that an individual with a disability is actually required to perform.” Id. at

1257; see also 29 C.F.R. § 1630.2(n)(2)(i). Whether a job function is “essential”

must be evaluated on a case-by-case basis. Holly v. Clairston Indus., 492 F.3d

1247, 1256 (11th Cir. 2007). Factors to evaluate include the employer’s judgment

as to whether the function is essential, the amount of time the function requires, the

consequences of not requiring the employee to do it, the terms of any collective

bargaining agreements, the experience of those who previously held the job, and


                                          4
             Case: 17-10338    Date Filed: 02/21/2018   Page: 5 of 13


the experience of those currently in similar jobs. Id. “The plaintiff bears the

burden of identifying an accommodation, and of demonstrating that the

accommodation allows him to perform the job’s essential functions.” Lucas v.

W.W. Grainger, Inc., 257 F.3d 1249, 1255-56 (11th Cir. 2001).

      Even if an employer failed to provide a reasonable accommodation, the

employer may still avoid liability by showing “that the accommodation would

impose an undue hardship on the operation of [its] business . . . .” 42 U.S.C.

§ 12112(b)(5)(A).

                                         II.

      We conclude that a reasonable jury could have determined Snead was

entitled to relief under the ADA. FAMU argues that Snead failed to prove (1)

what the “essential functions” of his job were, (2) that he could perform them, and

(3) that his requested accommodation was reasonable. FAMU also asserts that the

district court erred by declining to find that Snead’s requested accommodation

would have caused FAMU undue hardship. The record, however, shows that

Snead in fact provided evidence of all three items raised by FAMU. And the

record further shows that FAMU did not meet its burden to make out the

affirmative defense of undue hardship.

      First, Snead provided evidence of the job’s essential duties by entering into

evidence FAMU’s “Position Description” for the Law Enforcement Officer


                                         5
              Case: 17-10338    Date Filed: 02/21/2018    Page: 6 of 13


position. That document listed a number of “Essential Functions” to the job, which

the document defined as “those tasks or functions that are fundamental to the

position and affects [sic] position classification.” The Position Description sheet

does not list any specified shift length among those job functions labeled as

“essential.” Instead, a separate section of that form entitled “WORKING HOURS”

states the following: “80-hour biweekly pay period, consisting of six (6) 12-hour

workdays and one 8-hour day,” noting also that “[d]epending upon the needs of the

departments, shifts may be changed.”          In other words, FAMU’s own form

specified a number of “essential” job functions but did not include shift length

among them. And in the section in which it did address working hours, the form

specified that those hours could change (without specifying whether they might be

shortened or lengthened).      From all of this, the jury could have reasonably

concluded that the essential functions of Snead’s job were those functions—and

only those functions—listed as “essential” on the job description.

      FAMU argues on appeal that the section of the form listing “essential” job

functions is not exhaustive. It points out the form does specify that officers’

working hours consist of twelve-hour shifts, a fact it says demonstrates that twelve-

hour shifts are essential to the job. This might be a reasonable interpretation of the

Position Description form. But the question we must decide is whether that is the

only reasonable interpretation. As discussed, it is not. FAMU also points to the


                                          6
                Case: 17-10338     Date Filed: 02/21/2018     Page: 7 of 13


testimony of various university officials in which those officials explained the

importance of officers working twelve-hour shifts. This, too, might amount to

some evidence that working those shifts was an essential job function. But our

task is not to weigh evidence or make credibility judgments. A reasonable jury

could have looked to the Position Description form and decided that the form’s

plain labeling outweighed any other evidence presented. Our inquiry must end

there.

         Second, Snead’s testimony and a letter from his cardiologist provided ample

evidence for a reasonable jury to conclude he could perform his job functions.

Snead testified at trial that he was able to perform each and every job duty listed as

either “essential” or “marginal” on his job description. And a letter from Snead’s

cardiologist, admitted into evidence as a trial exhibit, stated that after reviewing

FAMU’s job description for Snead’s job, the cardiologist believed Snead was

“capable of performing the listed job duties” but should “be restricted to working

daytime hours and 8-hour shifts.”

         FAMU      characterizes    Snead’s       testimony   as    “self-serving”   and

“unsupported.” But whether or not it is self-serving, his cardiologist’s letter does

away with any contention that his testimony was “unsupported.” Snead put on

enough evidence for a reasonable jury to conclude he could have performed all

essential job functions even with his requested accommodation.


                                              7
              Case: 17-10338    Date Filed: 02/21/2018    Page: 8 of 13


      Third, Snead provided evidence both that his requested accommodation was

to revert to his previous shift schedule and that such a request was reasonable. He

entered into evidence a letter from his physician, Tracey Hellgren, specifying the

accommodation she recommended on his behalf.             Hellgren’s letter served as

evidence of what the accommodation itself would have entailed because in the

letter, she requested “a medical accommodation to return Mr. Snead to his previous

daytime eight hour shift duties and to be off permanently from his nighttime twelve

hour shifts.” Snead also entered into evidence a copy of his Position Description

sent to FAMU by Hellgren containing Hellgren’s markups. On this document,

Hellgren wrote in the margins that Snead should work “7am-3pm M-F,” that he

should work a “40 hour work week,” and that he is “unable to do 12 (twelve) hour

shifts safely.”   Snead testified at trial that his “previous daytime 8-hour-shift

duties” included finishing up work beyond his scheduled end time, working

football games, and covering a variety of other unlisted duties. Based on all of

this, a jury could have reasonably interpreted “his previous daytime eight hour shift

duties” to mean the shifts he used to work before the department’s switch. The

jury could have concluded that this language Hellgren employed allowed for Snead

to engage in all of his pre-switch duties, even the ones that included finishing up

his work beyond his scheduled end time.




                                          8
              Case: 17-10338     Date Filed: 02/21/2018   Page: 9 of 13


      FAMU argues that Hellgren’s instructions must be read literally and rigidly

to have prohibited him from working anything beyond an eight-hour work day and

a forty-hour work week. True, Hellgren’s instructions could reasonably be read as

prescribing firm limits to Snead’s work hours with no exceptions. But, again, that

is not our inquiry. We must ask only whether the jury could have reasonably

interpreted her instructions as allowing FAMU to return Snead to his previous

work schedule, which included occasional shift extensions and special events

outside of his regular hours. Again the answer is yes.

      Of course, even if Snead really was asking to work exactly the same kinds of

hours he worked before, it is a separate question to ask whether that was a

reasonable-accommodation request. An accommodation is reasonable under the

ADA “only if it enables the employee to perform the essential functions of the

job.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1256 (11th Cir. 2007).

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.A.

§ 12111 (9)(B). As we have discussed, Snead provided enough evidence for a

reasonable jury to conclude he could perform all essential job functions with his


                                          9
             Case: 17-10338     Date Filed: 02/21/2018   Page: 10 of 13


requested accommodation. For this reason, the jury also could have concluded his

accommodation request was reasonable.

                                         III.

      Finally, we must consider whether the jury could have reasonably concluded

that FAMU could not have accommodated Snead without undue hardship. “Undue

hardship” means “significant difficulty or expense incurred by a covered entity,

when considered in light of” several factors. 29 C.F.R. § 1630.2(1). Those factors

include “[t]he nature and net cost of the accommodation needed”; “[t]he overall

financial resources of the facility or facilities involved in the provision of the

reasonable accommodation, the number of persons employed at such facility, and

the effect on expenses and resources”; “[t]he overall financial resources of the

covered entity, the overall size of the business of the covered entity with respect to

the number of its employees, and the number, type and location of its facilities”;

“[t]he type of operation or operations of the covered entity, including the

composition, structure and functions of the workforce of such entity, and the

geographic separateness and administrative or fiscal relationship of the facility or

facilities in question to the covered entity”; and “[t]he impact of the

accommodation upon the operation of the facility, including the impact on the

ability of other employees to perform their duties and the impact on the facility's

ability to conduct business.” 29 C.F.R. § 1630.2(p)(2). Because undue hardship is


                                         10
             Case: 17-10338    Date Filed: 02/21/2018     Page: 11 of 13


an affirmative defense, the burden of proving it lies with the defendant. Willis v.

Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997).

      FAMU relies on the testimony of Terence Calloway, chief of the

university’s police force, who explained the effects he believed Snead’s requested

accommodation would have on the department.             Calloway testified to several

negative consequences: (1) Snead would miss the department’s daily briefings at

6:00 a.m.; (2) letting Snead off promptly after eight hours would disrupt the

handling of any ongoing situations and potentially endanger the officer replacing

him; (3) Snead would have multiple supervisors per week, which would disturb the

accuracy of his evaluations; (4) the department would have diminished manpower

on weekends; (5) there would not be enough patrol cars on weekdays for everyone

working; and (6) the department would have to pay someone overtime to work the

remaining hours of the day after Snead’s shift ended.          FAMU contends that

because Snead provided no evidence the contrary, the only reasonable conclusion a

jury could have reached is that Snead’s requested accommodation would have

imposed an undue hardship on the department.

      This argument falls short for two reasons.          First, much of Calloway’s

hardship testimony assumed a rigid interpretation of Snead’s requested

accommodation. Had Snead in fact requested to work only between 7:00 a.m. and

3:00 p.m. five days per week with no exceptions, then perhaps no reasonable jury


                                        11
             Case: 17-10338    Date Filed: 02/21/2018   Page: 12 of 13


could have declined to find undue hardship. But as we have noted, a reasonable

jury could have found that Snead instead requested to revert back to his former

schedule in which he stayed beyond the end of his shifts as needed and worked

both football games and special events. Assuming as we must that the jury made

this finding, it was free to ignore as irrelevant Calloway’s testimony about any

hardships that would have arisen from accommodating Snead through any other

work schedule he was not actually asking for.

      But second, even as to the rest of the purported hardships Calloway

identified, a reasonable jury could have disregarded them wholesale in light of

several bits of less plausible testimony Calloway gave. Calloway testified that as a

result of changing officers’ default shifts from eight hours to twelve, the

department saved enough money to purchase new police vehicles, computers,

guns, and uniforms, among other things, and started training its officers in-house

instead of contracting training to an outside entity.       On cross-examination,

however, Calloway testified that the department would not have been able to afford

any and all of those things if he had given Snead his requested accommodation.

The jury was not required to believe the claim that reducing the shift length of a

single line-level employee would have required such extreme results. Calloway

did of course offer other testimony that was plausible on its own. For instance, he

testified that the department would have incurred costs from paying overtime to


                                        12
            Case: 17-10338     Date Filed: 02/21/2018    Page: 13 of 13


other employees.    But where a witness has offered some testimony that is

inherently unbelievable, a jury is within its right to disregard the rest of that

witness’s testimony, too. See N.L.R.B. v. Pittsburgh S.S. Co., 337 U.S. 656, 659

(1949) (“[I]n the determination of litigated facts, the testimony of one who has

been found unreliable as to one issue may properly be accorded little weight as to

the next.”); Liberty Mut. Ins. Co. v. Thompson, 171 F.2d 723, 726 (5th Cir. 1948)

(jury “may reject all of [a witness’s testimony] if the jury believes that such

witness has willfully and corruptly sworn falsely to any material fact).            A

reasonable jury could have heard Calloway’s implausible testimony here and

chosen to disregard the rest of what he said, too. Since Calloway’s testimony was

the only evidence of hardship FAMU presented, the jury’s verdict was reasonable.

      For all these reasons, we find no error in the district court’s decision to deny

judgment as a matter of law.

      AFFIRMED.




                                         13
