           Case: 15-15274   Date Filed: 01/18/2017   Page: 1 of 13


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-15274
                         Non-Argument Calendar
                       ________________________

                   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:
              Case: 15-15274     Date Filed: 01/18/2017   Page: 2 of 13


      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


                                          2
              Case: 15-15274     Date Filed: 01/18/2017    Page: 3 of 13


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




                                           3
              Case: 15-15274      Date Filed: 01/18/2017    Page: 4 of 13


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


                                            4
              Case: 15-15274     Date Filed: 01/18/2017   Page: 5 of 13


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


                                           5
              Case: 15-15274    Date Filed: 01/18/2017    Page: 6 of 13


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


                                          6
              Case: 15-15274    Date Filed: 01/18/2017    Page: 7 of 13


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.


                                          7
              Case: 15-15274     Date Filed: 01/18/2017     Page: 8 of 13


      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


                                           8
              Case: 15-15274      Date Filed: 01/18/2017    Page: 9 of 13


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.


                                           9
             Case: 15-15274     Date Filed: 01/18/2017    Page: 10 of 13


      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


                                          10
             Case: 15-15274     Date Filed: 01/18/2017    Page: 11 of 13


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).


                                          11
             Case: 15-15274      Date Filed: 01/18/2017    Page: 12 of 13


      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




                                          12
             Case: 15-15274    Date Filed: 01/18/2017   Page: 13 of 13


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.




                                        13
