            Case: 13-15685   Date Filed: 11/17/2014   Page: 1 of 15


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-15685
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:12-cv-22666-CMA



STACEY MEYER,
individually,

                                                             Plaintiff-Appellant,

                                    versus

SECRETARY, U.S. DEPARTMENT OF
HEALTH AND HUMAN SERVICES,

                                                            Defendant-Appellee.

                        ________________________

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

                             (November 17, 2014)

Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:

     Stacey Meyer appeals the district court’s grant of summary judgment in
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favor of her former employer, the United States Department of Health and Human

Services (HHS). She brought three claims against HHS under the

antidiscrimination provision of the Rehabilitation Act of 1973 (RA). 1 See 29

U.S.C. § 794. She alleged that HHS committed three separate violations of the RA

by: terminating her, failing to accommodate her disability, and retaliating against

her for requesting an accommodation.

       Meyer worked as a Consumer Safety Officer for the Food and Drug

Administration (FDA). 2 She suffers from social phobia, avoidant personality

disorder, and dependent personality disorder. In October 2006 she brought these

disabilities to the attention of William Lyn, her supervisor at the time. He

responded by assigning her less field work and allowing her to work primarily at

the FDA’s office. Despite those changes, Meyer began accumulating unscheduled

absences. After an official, written warning, Lyn placed her on leave restriction in

August 2008. Leave restriction required Meyer to report her arrival and departure

times each day and to provide certification from a doctor any time she stayed home

sick. This lasted six months.


   1
      Meyer also claimed that HHS discriminated against her on the basis of gender, in violation
of Title VII of the Civil Rights Act. See 42 U.S.C. § 2000e et seq. She has not appealed the
district court’s ruling on that claim.
   2
      Because the district court entered summary judgment against Meyer, we recount the facts in
the light most favorable to her claims. See Johnson v. Bd. of Regents, 263 F.3d 1234, 1242–43
(11th Cir. 2001).


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      In April 2010, Meyer’s new supervisor, William Keck, again placed her on

leave restriction for problems with her attendance. This led Meyer to formally

request a reasonable accommodation for her disabilities under the RA in July 2010.

See 29 U.S.C. § 794(d); 42 U.S.C. § 12112(b)(5)(A). On September 14, 2010,

Meyer and her union representatives met with Keck and Facundo Bernal, Keck’s

supervisor, to discuss accommodation options. As a result of that meeting, Bernal

allowed Meyer to work an “Any 80” schedule, which permitted her to adjust her

daily schedule as long as she worked from 10:00 A.M. to 2:00 P.M., Monday

through Friday, and a total of 80 hours every two weeks. Shortly after Meyer’s

schedule change, the FDA and Meyer’s union entered into a new collective

bargaining agreement (CBA), which abolished the Any 80 schedule. Bernal did

not understand the effect of the new CBA and thought that he needed to change

Meyer’s Any 80 schedule, even though it was an accommodation for her disability

and unrelated to the CBA. About three weeks after the September 14 meeting he

met with Meyer to explain that he was changing her accommodation to a “First 40”

schedule, which permitted her to adjust her daily schedule as long as she worked

from 10:00 A.M. to 2:00 P.M., Monday through Friday, and a total of 40 hours

each week.

      In October 2010 two FDA employees separately spoke with Keck, each

alleging that she had been invited by Meyer to go to the park during work hours.


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At Bernal’s request, Keck investigated Meyer’s daily schedule. He discovered

that, when Meyer was in the field inspecting businesses, she would return to the

office two to four hours after having left the business and would have put more

miles on her vehicle than needed to drive to the business and back to the office.

Bernal approached the FDA’s director of the Florida District with Keck’s findings.

Calling Meyer’s behavior “egregious,” the Florida director reported it to the

Southeast Regional director, and they decided to report Meyer to the Office of

Internal Affairs. The Florida director contacted Internal Affairs, which decided to

begin surveillance of Meyer. From November 31, 2010, to February 2, 2011, two

Internal Affairs agents ran a surveillance operation of Meyer that revealed she had

made 31 trips to the park during working hours over the course of 35 workdays,

each time using a government-owned vehicle to get there. On February 3, 2011,

the two agents met with Meyer to discuss their surveillance. At this meeting,

Meyer lied to the agents about the frequency, duration, and purpose of these trips

to the park.

      On April 11, 2011, Keck sent Meyer a notice that he had proposed that

Bernal terminate her. This notice charged three types of misconduct: (1) thirty-

two instances of misuse of a government-owned vehicle, primarily for trips to the

park; (2) providing misleading information to the two agents about her trips to the

park; and (3) twenty-eight instances of misrepresenting time and attendance


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records between November 30, 2010, and January 26, 2011, resulting in records

that over-reported her time worked during that period by about 43 hours. After

Meyer had responded to that notice, Bernal reviewed both it and her response to it,

and then issued a final decision to terminate Meyer on July 12, 2011. Meyer

responded by filing this lawsuit.

      We review de novo the grant of summary judgment against Meyer, applying

the same legal standard that the district court used and drawing all factual

inferences in the light most favorable to Meyer. See Johnson v. Bd. of Regents,

263 F.3d 1234, 1242–43 (11th Cir. 2001). To show that the district court

improperly granted summary judgment, Meyer must present more than a mere

scintilla of evidence supporting her position. She must instead make a sufficient

showing that a jury could reasonably find for her. Brooks v. Cnty. Comm’n, 446

F.3d 1160, 1162 (11th Cir. 2006).

                                          I.

      Meyer first contends that her termination constituted disability-based

discrimination in violation of the RA. The RA prohibits federal employers from

subjecting an “otherwise qualified person with a disability” to discrimination —

including discrimination in the discharge of employees — “solely by reason of her




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or his disability.” 29 U.S.C. § 794(a); see 42 U.S.C. § 12112(a). 3 We apply the

plain meaning of the phrase “solely by reason of,” and Meyer cannot prevail if she

shows that HHS based her termination partially on her disability and partially on

other factors. 4 See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (“It is

not enough for a plaintiff to demonstrate that an adverse employment action was

based partly on his disability.”). Meyer may create a genuine issue of material fact

about whether she was terminated solely by reason of her disability with either

direct or circumstantial evidence. See EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d

1265, 1272 (11th Cir. 2002). She attempts to use both.

                                               A.

       As direct evidence of disability discrimination, Meyer presents comments

made by Bernal and Keck. Direct evidence must prove “without inference or

presumption” that HHS terminated her solely by reason of her disability. See Joe’s

Stone Crabs, 296 F.3d at 1272 (quotation marks omitted). She first asserts that

comments made by Bernal during their September 14 meeting are such evidence.

That meeting was held at Meyer’s request for the sole purpose of discussing

   3
      The RA expressly adopts the Americans with Disabilities Act’s (ADA) standards for
determining violations of the law. 29 U.S.C. § 794(d). For that reason, we apply the RA in light
of the ADA itself and our precedents interpreting that statute. See Cash v. Smith, 231 F.3d 1301,
1305 n.2 (11th Cir. 2000) (“Cases decided under the Rehabilitation Act are precedent for cases
under the ADA, and vice-versa.”).
   4
     HHS concedes that Meyer is an “otherwise qualified person with a disability.” The only
issue before us, then, is whether HHS terminated Meyer “solely by reason of” her disability.


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options for reasonably accommodating her disability. During that meeting, Bernal

referred to her as a “liability” and questioned her ability to do field work “if she

has this inability to communicate with others.” But that meeting did not result in

any adverse action against Meyer. Quite the opposite: Bernal granted her request

for a reasonable accommodation. To take those comments as evidence of

discriminatory intent, we would have to presume that Bernal harbored

discriminatory motives against Meyer despite his actions to the contrary. And if

we must presume those comments reflected Bernal’s discriminatory intent, they are

not direct evidence of discrimination.

      She also points to crude comments by Keck, who on two occasions told her

to “shake [her] ass” to avoid “this problem out there in the field.” Meyer asserts

that Keck’s reference to her “problem” is the inappropriate part of this comment.

She sees it as a reference to her disability. But she does not identify the exact

“problem” Keck was referencing, which means she has asked us to infer that he

referred to a disability-related problem. If we must infer that Keck’s comment

referred to her disability, it is not direct evidence of discrimination.

                                           B.

      Because she has produced no similarly situated comparator, Meyer does not

rely on the familiar burden-shifting analysis of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). She instead attempts to create a


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genuine issue of material fact using the “mosaic theory” of circumstantial

evidence. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.

2011). Under this approach, “[i]f a plaintiff ‘presents circumstantial evidence that

creates a triable issue concerning the employer’s discriminatory intent,’ she ‘will

always survive summary judgment.’” Chapter 7 Tr. v. Gate Gourmet, Inc., 683

F.3d 1249, 1255 (11th Cir. 2012) (quoting Smith, 644 F.3d at 1328).

      Meyer’s RA claim cannot survive summary judgment under the mosaic

theory unless she presents enough circumstantial evidence to raise a reasonable

inference that HHS terminated her “solely by reason of” her disability. See 29

U.S.C. § 794(a); Ellis, 432 F.3d at 1326 (“It is not enough for a plaintiff to

demonstrate that an adverse employment action was based partly on his

disability.”). So her circumstantial evidence must undermine the undisputed

evidence that HHS actually terminated her because she violated agency policy.

See Gate Gourmet, 683 F.3d at 1255–56; Smith, 644 F.3d at 1328. Meyer does not

dispute that the two employees who initially reported her policy violations played

no role in her ongoing discussions with HHS about her disability and reasonable

accommodations. She does not dispute that the Florida District director, who

called her policy violations “egregious,” did not know about her disability. She

does not dispute that the Southeast Regional director, who along with the Florida

director referred her case to Internal Affairs, did not know about her disability.


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She does not dispute that the Internal Affairs investigators assigned to her case did

not know about her disability. And she does not dispute that she committed the

violations of HHS policy discovered by those investigators and upon which Bernal

relied when he terminated her. Meyer’s circumstantial mosaic must, despite that

undisputed evidence, allow a reasonable jury to infer that HHS terminated her

solely by reason of her disability.

      In her attempt to meet this burden, she lists a handful of incidents without

drawing any connection between them, failing to show how they comprise “a

convincing mosaic of circumstantial evidence” of discriminatory intent. See

Smith, 644 F.3d at 1328 (quotation marks omitted). She starts with the same

comments by Bernal and Keck that have already been discussed, now using them

as circumstantial instead of direct evidence of discrimination. She builds on those

comments with evidence of HHS’s “repeated revocation[s]” of her reasonable

accommodations, pointing to three incidents in particular: (1) Keck’s decision to

assign her more field work, (2) Bernal’s decision to change her schedule, and (3)

Keck’s refusal to allow her to move to a less-exposed cubicle. She finishes her

mosaic with Bernal’s decision to report her to Internal Affairs and his failure to

explain her disability and accommodation to the investigators.

      Meyer’s mosaic of evidence does nothing to discredit the undisputed

evidence that HHS terminated her at least partly because she violated agency


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policy. It may suggest that Bernal and Keck harbored some disability-based

hostility against her. It could even be read to suggest that Bernal referred Meyer to

his supervisors at least partly by reason of that hostility. But it does not contradict

the undisputed evidence that Meyer’s policy violations at least partially motivated

HHS’s decision to terminate her. If she shows only that her termination “was

based partly on [her] disability,” then her claim fails. See Ellis, 432 F.3d at 1326

(emphasis added). She must raise an inference that HHS terminated her “solely by

reason of her . . . disability.” 29 U.S.C. § 794(a) (emphasis added). Because her

mosaic of circumstantial evidence can do no more than raise an inference that HHS

terminated her partly because of her disability and partly because of her violations

of HHS policy, Meyer failed to establish a prima facie discrimination claim under

the RA.

                                                II.

       Meyer next contends that the district court erred by rejecting her claim that

by switching her from the Any 80 schedule to the First 40 schedule, Bernal failed

to provide her with a reasonable accommodation. 5 The RA requires an employer

to “mak[e] reasonable accommodations to the known physical or mental

   5
     Meyer also claims that HHS failed to accommodate her when Keck assigned her more field
work and when he refused to allow her to move to a less-exposed cubicle. She made neither
claim before the district court. We therefore do not consider them. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“[A]n issue not raised in the district court
and raised for the first time in an appeal will not be considered by this court.”) (quotation marks
omitted).


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limitations of an otherwise qualified individual with a disability.” 6 42 U.S.C.

§ 12112(b)(5)(A); Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1262 (11th Cir.

2007) (“[A]n employer’s failure to reasonably accommodate a disabled individual

itself constitutes discrimination under the ADA . . . .”) (quotation marks omitted);

see 29 U.S.C. § 794(d). Meyer, however, has “the burden of identifying an

accommodation that would allow [her] to perform the job,” along with “the

ultimate burden of persuasion with respect to demonstrating that such an

accommodation is reasonable.” Stewart v. Happy Herman’s Cheshire Bridge, Inc.,

117 F.3d 1278, 1286 (11th Cir. 1997). HHS had no obligation to accept the

accommodations suggested by her. See id. at 1285 (“[A]n employer is not required

to accommodate an employee in any manner in which that employee desires.”)

(quotation marks omitted).

       Meyer’s disability could cause bouts of anxiety and depression lasting “a

day or two, with the occasional longer period.” To accommodate this condition,

she suggested that HHS allow her a flexible schedule, in particular the Any 80

schedule. Bernal agreed to this suggestion. About three weeks later, he changed

his mind and her schedule, allowing her the First 40 schedule instead. She asserts

that because the First 40 schedule is less flexible than the Any 80 schedule, HHS

   6
     Because HHS has conceded that Meyer is “an otherwise qualified individual with a
disability,” we address only the question of whether HHS failed to make “reasonable
accommodations” for her.


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has therefore failed to provide her with a reasonable accommodation. But she has

not argued that the First 40 schedule is itself not a reasonable accommodation, just

that the Any 80 schedule would be better. HHS had no obligation to provide her

“the maximum accommodation . . . possible,” nor was she “entitled to the

accommodation of her choice, but only a reasonable accommodation.” See id.

(quotation marks omitted).

      Meyer tries to dodge her failure to show that the First 40 schedule is

unreasonable by arguing that Bernal “failed to engage [her] in the interactive

process required under the [RA].” But she cannot evade summary judgment with

this argument. The applicable regulation suggests that to determine an appropriate

reasonable accommodation “it may be necessary for [the employer] to initiate an

informal, interactive process with the individual with a disability in need of the

accommodation.” 29 C.F.R. § 1630.2(o)(3). In applying this regulation, we have

stated that “[l]iability simply cannot arise under the ADA when an employer does

not obstruct an informal interactive process; makes reasonable efforts to

communicate with the employee and provide accommodations based on the

information it possesses; and the employee’s actions cause a breakdown in the

interactive process.” Stewart, 117 F.3d at 1287. Bernal did not obstruct the

interactive process. At the meeting on September 14, 2010, he and Meyer

discussed her disability and options for accommodating it. When he decided to


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change her accommodation three weeks later, he spoke to Meyer about it. She did

not tell Bernal that she disapproved of the change, nor did she request a different

accommodation. If there was a failure in an interactive process, it was Meyer’s

actions that caused it, not Bernal’s.

                                          III.

      Meyer finally contends that HHS discriminated against her by changing her

schedule and terminating her in retaliation for requesting a reasonable

accommodation and for filing charges of discrimination with the EEOC. See 42

U.S.C. § 12203(a) (“No person shall discriminate against any individual because

such individual has opposed any act or practice made unlawful by this chapter or

because such individual made a charge . . . under this chapter.”); 29 U.S.C.

§ 794(d). To establish a prima facie retaliation claim, Meyer must show that

(1) she engaged in a protected activity, (2) she suffered an adverse employment

action, and (3) the protected activity was causally connected to the adverse

employment action. Stewart, 117 F.3d at 1287. Meyer met the first requirement in

two ways: requesting a reasonable accommodation and filing charges of

discrimination with the EEOC. See 42 U.S.C. § 12203(a); Standard v. A.B.E.L.

Servs., Inc., 161 F.3d. 1318, 1328 (11th Cir. 1998) (holding that a request for a

reasonable accommodation is a “statutorily protected activity” only if the plaintiff

“had a good faith, objectively reasonable belief that he was entitled to those


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accommodations”). To prove the causal connection between those activities and

HHS’s termination of her, Meyer relies on their “temporal proximity.” See Higdon

v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (“A ‘close temporal proximity’

between the protected expression and an adverse action is sufficient circumstantial

evidence of a causal connection for purposes of a prima facie case.”).

      First, Meyer highlights the three weeks between Bernal’s alleged hostility

toward her in the reasonable accommodation meeting and his decision to place her

on the First 40 schedule instead of the Any 80 schedule. She asserts that this

“close temporal proximity” creates a triable retaliation issue. See id. We disagree.

Meyer illogically asserts that Bernal retaliated against her for requesting a

reasonable accommodation by agreeing to meet with her to discuss that request,

and then in further retaliation, he agreed to her request. Only after those two steps

did he alter the terms of her accommodation, providing her with a schedule that she

does not dispute is itself a reasonable accommodation. “Close temporal

proximity” cannot overcome the illogic of her argument.

      Meyer’s second retaliation argument — that HHS terminated her because

she filed charges of discrimination with the EEOC — again relies on temporal

proximity to show causation. Meyer filed an informal complaint on March 3,

2011, which resulted in a telephone conference between her, Bernal, Keck, and an

EEOC counselor. She asserts that because Keck proposed her removal “only


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seventeen days after the EEOC conference call,” and because Bernal approved her

termination about two months later, she has shown enough temporal proximity to

defeat summary judgment. See id. But she has not. The Internal Affairs

investigation that led to her termination had finished a month before she

complained to the EEOC. Keck and Bernal already had all the evidence before

them that they would eventually rely on when they terminated her. HHS had

already taken substantial steps towards terminating Meyer, which means she

needed to show more than mere temporal proximity. See Cotton v. Cracker Barrel

Old Country Store, Inc., 434 F.3d 1227, 1232 (11th Cir. 2006) (“When an

employer contemplates a given action before the harassment takes place, temporal

proximity between the action and the incident of harassment alone will not suffice

to show causation.”).

                                        IV.

      For those reasons, HHS was entitled to judgment as a matter of law.

      AFFIRMED.




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