                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-13666                ELEVENTH CIRCUIT
                                                            MAY 20, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                 D. C. Docket No. 08-00054-CV-CAM-1

DONALD D. ANDERSON,


                                                          Plaintiff-Appellant,

                                 versus

EMBARQ / SPRINT,

                                                         Defendant-Appellee.


                      ________________________

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

                             (May 20, 2010)

Before EDMONDSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
       Donald D. Anderson, a 51-year-old black man, proceeding pro se, appeals

the district court’s grant of summary judgment to Embarq on his claims under the

Americans with Disabilities Act of 1990 (ADA),1 Title VII of the Civil Rights Act

of 1964 (Title VII),2 and the Age Discrimination in Employment Act of 1967

(ADEA).3 Anderson challenges the district court’s disposition of his claims for

(1) failure to promote, (2) disability discrimination under the ADA, (3) racial

discrimination under Title VII, (4) age discrimination under the ADEA, and

(5) retaliation under Title VII. Because the district court properly disposed of

Anderson’s claims, the judgment is affirmed.

                  I. ANDERSON’S FAILURE TO PROMOTE CLAIM

       Anderson argues that his employer, Embarq, wrongly failed to promote

him.4 The district court dismissed this claim, explaining that Anderson had not

exhausted the available administrative remedies. We review this determination de

novo. See Alexander v. Hawk, 159 F.3d 1321, 1323 (11th Cir. 1998).




       1
           42 U.S.C. § 12101 et seq.
       2
           42 U.S.C. § 2000e et seq.
       3
           29 U.S.C. § 621 et seq.
       4
          As the district court noted, it is not clear under which statute Anderson seeks to advance
his failure to promote claim.

                                                 2
      Before filing suit under Title VII, the ADA, or the ADEA, a plaintiff must

exhaust the available administrative remedies by filing a charge with the EEOC.

See 42 U.S.C. § 2000e-5(e)(1) (stating plaintiff must file Title VII charge within

180 days after the alleged unlawful employment practice); 42 U.S.C. § 12117(a)

(applying remedies and procedures of Title VII to ADA); 29 U.S.C. § 626(d)

(stating plaintiff must file age discrimination charge within 180 days after the

alleged discrimination).

      “The starting point of ascertaining the permissible scope of a judicial

complaint alleging employment discrimination is the administrative charge and

investigation.” Alexander v. Fulton County, 207 F.3d 1303, 1332 (11th Cir. 2000).

“A plaintiff’s judicial complaint is limited by the scope of the EEOC investigation

which can reasonably be expected to grow out of the charge of discrimination.” Id.

(quotation omitted). We have noted that “judicial claims are allowed if they

‘amplify, clarify, or more clearly focus’ the allegations in the EEOC complaint,”

but we have also warned that “allegations of new acts of discrimination are

inappropriate.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279–80

(11th Cir. 2004).

      Anderson did not include a failure to promote claim in his EEOC charges.

In his EEOC charges, Anderson complained only of race discrimination, age



                                           3
discrimination, disability discrimination, and retaliation. According to Anderson,

his failure to promote claim developed in July 2006, before the events that gave

rise to his EEOC charges. The EEOC could not reasonably have been expected to

investigate this claim that arose before the acts that Anderson cited in his charge.

Because this new allegation of discrimination does not clarify the allegations in his

EEOC charges, the district court properly dismissed this claim for failure to

exhaust administrative remedies.

       II. ANDERSON’S ADA DISABILITY-DISCRIMINATION CLAIM

       Anderson alleges that Embarq wrongly denied him the reasonable

accommodation of “light-duty work” after he injured himself in an off-the-job

accident.5 The district court granted summary judgment in favor of Embarq on this

ADA discrimination claim; we review that determination de novo, viewing all the

evidence and drawing all reasonable inferences in favor of Anderson, the non-

moving party. See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir.

2005). Summary judgment is proper if the pleadings, depositions, and affidavits in

this case show there is no genuine issue of material fact such that Embarq is


       5
          On September 7, 2006, Anderson slipped, fell, and injured himself at a Publix grocery
store. Prior to this accident and the resulting short-term disability leave, Anderson worked for
Embarq as a “distribution center person”—a physical job that required Anderson to both stand
and walk, as well as to push, pull, lift, and carry boxes that weighed up to seventy pounds
frequently and continuously. In December 2006, Anderson requested “light-duty work” as an
accommodation for his reduced physical capacity because of his injuries.

                                                4
entitled to judgment as a matter of law. See Holly v. Clairson Indus., L.L.C., 492

F.3d 1247, 1255 (11th Cir. 2007) (internal quotations omitted).

          This Circuit analyzes ADA discrimination claims under the McDonnell-

Douglas6 burden-shifting analysis. Holly, 492 F.3d at 1255 (internal quotation

omitted). To successfully state a claim under this framework, Anderson must first

establish a prima facie discrimination case, meaning he must show: (1) he is

disabled, (2) he is a qualified individual, and (3) he was subjected to unlawful

discrimination because of his disability. See id. at 1255–56.

          As to the second element, relevant here, the ADA defines “qualified

individual” as an individual with a disability “who, with or without reasonable

accommodation, can perform the essential functions of” his job. 42 U.S.C.

§ 12111(8). An employer impermissibly discriminates against a qualified

individual when the employer does not reasonably accommodate the individual’s

disability. 42 U.S.C. § 12112(b)(5)(A). An accommodation is “reasonable,” and

therefore required under the statute, “only if it enables the employee to perform the

essential functions of the job.” Holly, 492 F.3d at 1256. Importantly, “[i]f the

individual is unable to perform an essential function of his job, even with an




          6
              McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973).

                                                  5
accommodation, he is, by definition, not a ‘qualified individual’ and, therefore, not

covered under the ADA.” Id. (quotation omitted).

      “[E]ssential functions are the fundamental job duties of a position that an

individual with a disability is actually required to perform.” Id. at 1257.

Determining whether a particular job duty is an essential function involves a

factual inquiry to be conducted on a case-by-case basis. Id. at 1258. Courts

consider the employer’s judgment regarding whether a function is essential, as well

as (1) the amount of time spent on the job performing the function, (2) the

consequences of not requiring the individual to perform the function, (3) the terms

of a collective-bargaining agreement, (4) the work experience of individuals who

held the job in the past, and (5) the work experience of individuals currently in

similar jobs. Id. at 1257–58.

      In this case, Anderson has failed to show he is a “qualified individual” for

purposes of the ADA because he has not shown he could perform the “essential

functions” of his job. See 42 U.S.C. § 12111(8). Anderson’s job required him to

lift boxes that weighed less than ten pounds, although he occasionally lifted boxes

weighing forty, fifty, or sixty pounds. The job description for Anderson’s

position—“distribution center person”—stated that Anderson’s tasks required him

to stand, walk, as well as push, pull, lift, and carry boxes that weighed up to



                                           6
seventy pounds frequently and continuously, which, according to the job-

description form, was more than 33% of the time. Accordingly, lifting was an

essential function of Anderson’s job. Anderson’s request for forklift work only,

however, eliminates this essential function. Thus, because Anderson’s requested

accommodation would eliminate an essential function of his job, it was not

reasonable and was therefore not required under the statute. See Holly, 492 F.3d at

1256. Accordingly, his accommodation claim fails and the district court properly

granted summary judgment in Embarq’s favor.7

       III. ANDERSON’S TITLE VII RACIAL-DISCRIMINATION CLAIM

       Anderson further argues that Embarq racially discriminated against him. The

district court likewise granted summary judgment on this Title VII racial-

discrimination claim. We review this determination de novo, applying the same

standards applicable to the ADA discussed in Part II. See Vessels, 408 F.3d at 767.

       Title VII makes it unlawful for an employer “to discharge any individual, or

otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race,

       7
          Furthermore, Anderson cannot show that even with his requested
accommodation—light-duty work on a forklift—he could have performed the essential functions
of his job. Anderson suffered from other issues that prevented him from returning to work, and,
by his own admission, these issues did not improve until July 2007. Further, Anderson expressed
concern over operating a forklift while on pain medication and, at the time of his light-duty work
requests, Anderson’s doctors had not approved his return to work. Anderson’s termination claim
is deficient for the same reasons.

                                                7
color, religion, sex, or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). When a

plaintiff relies on circumstantial evidence to prove discrimination or retaliation

under Title VII, we employ the McDonnell-Douglas burden-shifting analysis,

under which Anderson bears the initial burden of establishing a prima facie case of

discrimination. Crawford v. Carroll, 529 F.3d 961, 975–76 (11th Cir. 2008).

      To establish a prima facie case under Title VII, Anderson must show (1) he

is a member of a protected class, (2) he was qualified for the job in question, (3) he

was subjected to an adverse employment action, and (4) his employer treated

similarly situated employees outside his class more favorably. See Maynard v. Bd.

of Regents of Div. of Univs. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.

2003). As to the second element—that he was qualified for the job—Anderson

must show only that he satisfied Embarq’s objective employment qualifications.

See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005).

      As discussed in Part II. supra, Anderson has not shown he was qualified for

his job: he could not lift up to 70 pounds frequently and continuously, he suffered

from neurological issues that caused bowel problems, he expressed concern

regarding his ability to operate a forklift, and, above all, he had not been cleared by

a physician to return to work. Accordingly, because Anderson has failed to satisfy

at least one of the elements of his prima facie case, the district court properly



                                           8
granted summary judgment in Embarq’s favor on the Title VII discrimination

claim.

             IV. ANDERSON’S ADEA AGE-DISCRIMINATION CLAIM

         Anderson also alleges that Embarq wrongly discharged him because of his

age. This claim was based primarily on an Embarq human resources employee’s

alleged comment to Anderson that he was discharged “because [he] was 51 years

old and had back problems [such] that [he] couldn’t do the job anymore.” The

district court granted summary judgment on this age-discrimination claim, and we

likewise review this determination de novo, viewing the evidence and drawing all

reasonable inferences in Anderson’s favor. See Vessels, 408 F.3d at 767.

         Under the ADEA, it is “unlawful for an employer to fail or refuse to hire or

to discharge any individual or otherwise discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s age.” Chapman, 229 F.3d at 1024 (citing 29 U.S.C.

§ 623(a)(1)). Like in ADA and Title VII contexts, when a plaintiff relies on

circumstantial evidence to prove a discrimination under the ADEA, we employ the

McDonnell-Douglas burden-shifting analysis.8 Chapman, 229 F.3d at 1024.


         8
         Although Anderson also could have stated a prima facie case with direct evidence of
discrimination, see Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.
1999), Anderson presented no such evidence to the district court. Direct evidence is “evidence
which reflects a discriminatory or retaliatory attitude correlating to the discrimination or

                                               9
Under this framework, Anderson must first establish a prima facie case of

discrimination. Id. To do so, Anderson must show he was (1) a member of the

protected age group, (2) subjected to an adverse employment action, (3) qualified

to do the job, and (4) replaced by or otherwise lost a position to a younger

individual. Id.

       Anderson’s ADEA claim suffers from the same deficiency as does his Title

VII claim discussed in Part III supra—that is, at the time of his light-duty request

and his termination, Anderson could no longer meet the objective qualifications of

his job. Moreover, Anderson did not identify a younger person that Embarq

treated more favorably. Accordingly, because Anderson has failed to meet at least

two of the elements of a prima facie case for age discrimination under the ADEA,

the district court properly granted summary judgment in Embarq’s favor.

                V. ANDERSON’S TITLE VII RETALIATION CLAIM

       Finally, Anderson contends that the denial of his light-duty work request and

his ultimate termination was in retaliation for his comments at a company




retaliation complained of by the employee.” Id. (quotation and citation omitted). Such evidence
“must indicate that the complained-of employment decision was motivated by the decision-
maker’s ageism.” Id. at 1358–59. Accordingly, “only the most blatant remarks, whose intent
could be nothing other than to discriminate on the basis of age will constitute direct evidence of
discrimination.” Id. at 1359 (quotation and citation omitted).

                                                10
meeting.9 The district court also granted summary judgment on this Title VII

retaliation claim; like the other grants of summary judgment, we review this

determination de novo, viewing the evidence and drawing all reasonable inferences

in Anderson’s favor. See Vessels, 408 F.3d at 767.

       Under Title VII, an employer may not retaliate against an employee because

the employee has opposed an unlawful employment practice. EEOC v. Total Sys.

Serv., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (citing 42 U.S.C. § 2000e-3(a)).

To establish a prima facie case of retaliation under Title VII, a plaintiff must show

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

action, and (3) there was a causal connection between the protected activity and the

adverse employment action. Crawford, 529 F.3d at 970–74. The causal-

connection prong requires a plaintiff to demonstrate that “the decision-makers were

aware of the protected conduct, and that the protected activity and the adverse

action were not wholly unrelated.” McCann v. Tillman, 526 F.3d 1370, 1376 (11th

Cir. 2008) (quotation and alterations omitted). Although a causal connection can

be established by the close temporal proximity between the protected activity and

the adverse action, id., we have held that a “three to four month disparity between


       9
        At an August 23, 2006, meeting, Anderson commented on Embarq’s policy regarding
employees’ “perfect attendance.” Another employee commented on Embarq’s alleged failure to
promote African Americans. Anderson believes Embarq may have attributed the other
employee’s comment to him.

                                            11
the statutorily protected expression and the adverse employment action is not

enough,” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).

      Here, Anderson has not established a prima facie case of retaliation. Even

assuming arguendo that Anderson’s perfect-attendance comment at the August

2006 Embarq meeting constituted protected expression—or that another

employee’s objection that was erroneously attributed to Anderson constitutes

protected expression—Anderson has not established a causal connection between

those remarks and either the denial of light-duty work or his termination.

See Crawford, 529 F.3d at 970. Neither the decisionmaker who denied Anderson’s

light-duty request nor the decisionmaker who terminated Anderson’s employment

was aware of Anderson’s comment. Further, the respective decisions were made

some four and eight months after the August 2006 meeting in question. Thus,

because Anderson has not shown a causal connection between any protected

activity and the adverse employment action, he has not established a prima facie

case of retaliation. Accordingly, the district court properly granted summary

judgment in Embarq’s favor.

      AFFIRMED.




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