             Case: 18-14664    Date Filed: 11/15/2019   Page: 1 of 9


                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-14664
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 5:17-cv-00477-JSM-PRL



THOMAS O’STEEN MONROE,

                                                              Plaintiff-Appellant,

                                     versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                                             Defendant-Appellee.

                         ________________________

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

                              (November 15, 2019)

Before WILSON, GRANT, and HULL, Circuit Judges.

PER CURIAM:

      This is an employment dispute. Thomas Monroe is a former correctional

officer with the Florida Department of Corrections (FDOC) who was diagnosed
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with Post-Traumatic Stress Disorder (PTSD). He requested an indefinite leave of

absence due to his PTSD, and, shortly thereafter, the FDOC terminated his

employment. Monroe then filed this action, asserting claims of disability

discrimination and retaliation, in violation of the Florida Civil Rights Act (FCRA),

Fla. Stat. §§ 760.10(1)(a), (7). The district court granted summary judgment in

favor of the FDOC on all of Monroe’s claims.

       On appeal, Monroe argues that the court erred when it granted summary

judgment on his disability discrimination claim because he established a prima

facie case of discrimination. He also argues that the court disregarded Young v.

United Parcel Serv., Inc., 575 U.S. ___, 135 S. Ct. 1338 (2015), by failing to

properly consider whether the FDOC accommodated other employees’ requests for

indefinite leave. As to his retaliation claim, Monroe contends that the court erred

when it concluded that he could not have had an objectively reasonable belief that

his request for indefinite leave was a statutorily protected activity. We conclude

that the district court did not err and therefore affirm.1




1
  We dispense at the outset with Monroe’s argument that the district court failed to construe as a
“qualification standard,” and thus failed to analyze under Chevron U.S.A. Inc. v. Echazabal, 536
U.S. 73 (2002), the FDOC’s requirement that his leave request specify a return date. As Chevron
explains, asserting that a requirement is a qualification standard is an employer’s affirmative
defense, not an employee’s. And the FDOC did not raise this defense in its motion for summary
judgment. See id. at 78.

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                                          I.

      We first address Monroe’s argument that the district court erroneously

concluded that he failed to establish a prima facie case of disability discrimination.

We review orders granting summary judgment de novo, viewing all evidence and

drawing all reasonable inferences in favor of the non-moving party. Vessels v.

Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005) (per curiam).

Summary judgment is appropriate when the record shows that there is no genuine

issue as to any material fact and the movant is entitled to judgment as a matter of

law. Id. We “may affirm the judgment of the district court on any ground

supported by the record, regardless of whether that ground was relied upon or even

considered by the district court.” Kernel Records Oy v. Mosley, 694 F.3d 1294,

1309 (11th Cir. 2012).

      The FCRA prohibits employers from discharging or otherwise

discriminating against any individual “because of such individual’s . . . handicap.”

Fla. Stat. § 760.10(1)(a). Disability discrimination claims brought under the FCRA

are analyzed under the American with Disabilities Act (ADA) framework.

Greenberg v. BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263–64 (2007)

(per curiam). The ADA likewise prohibits employment discrimination “against a

qualified individual on the basis of disability.” 42 U.S.C. § 12112(a).




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      Courts apply a burden-shifting analysis to ADA claims. Holly v. Clairson

Indus., LLC, 492 F.3d 1247, 1255 (11th Cir. 2007). Under this framework, a

plaintiff must first establish a prima facie case of employment discrimination by

showing that “(1) he [was] disabled; (2) he [was] a qualified individual; and (3) he

was subjected to unlawful discrimination because of his disability.” Holly, 492

F.3d at 1255–56. If an employee makes this showing, the employer must articulate

“a legitimate, non-discriminatory reason for the challenged action.” Wascura v.

City of S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). Once an employer

articulates such a reason, the employee must present evidence showing that the

employer’s proffered reason was pretextual. See id. at 1243.

      A “qualified individual” is defined under the ADA as “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). “Thus, if [the plaintiff] is unable to perform an essential function of

his . . . job, even with an accommodation, he is, by definition, not a ‘qualified

individual’ and, therefore, not covered under the ADA.” Davis v. Fla. Power &

Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000).

      An employer’s failure to reasonably accommodate a disabled individual is

discrimination under the ADA. Holly, 492 F.3d at 1262; 42 U.S.C.

§ 12112(b)(5)(A). In establishing a prima facie case of discrimination, the plaintiff


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bears the burden both to identify an accommodation and to show that it is

reasonable. See Willis v. Conopco, Inc., 108 F.3d 282, 284–86 (11th Cir. 1997)

(per curiam). Reasonable accommodations may include: “job restructuring, part-

time or modified work schedules, reassignment to a vacant position, acquisition or

modification of equipment or devices, . . . and other similar accommodations for

individuals with disabilities.” 42 U.S.C. § 12111(9)(B). However, because the

ADA covers people who can perform their essential job functions in the present or

immediate future, requests for indefinite leave so an employee can work “at some

uncertain point in the future” are inherently unreasonable. See Wood v. Green, 323

F.3d 1309, 1314 (11th Cir. 2003). This is true even if the employer previously

granted periods of indefinite leave because “prior accommodations do not make an

accommodation reasonable.” Id.

      Here, the district court correctly granted the FDOC’s summary judgment

motion on Monroe’s discrimination claim. Monroe’s doctor’s note indicated that

he could not work at the time he was fired, and Monroe admitted that he could not

perform his job duties at that time. Additionally, Monroe’s doctor did not give,

and could not have given, a date when Monroe could return to work. Our case law

is clear that indefinite leave is not a reasonable accommodation and that it was

Monroe’s duty to identify such an accommodation. Wood, 323 F.3d at 1314;

Willis, 108 F.3d at 284–86. Thus, because the record indicates that Monroe could


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not perform his job duties with or without a reasonable accommodation, Monroe

was not a qualified individual under the ADA. Davis, 205 F.3d at 1305.

Therefore, he failed to establish a prima facie case of disability discrimination.

Accordingly, we affirm the grant of summary judgment for this claim. 2

                                              II.

       Next, we consider Monroe’s argument that the district court’s grant of

summary judgment was contrary to Young. In Young, the Supreme Court

determined that, in a claim under the Pregnancy Discrimination Act (PDA), an

employer’s apparently legitimate reasons for failing to accommodate a pregnant

employee could be rebutted by showing that the employer accommodated a large

percentage of nonpregnant workers but did not accommodate a large percentage of

pregnant workers. 135 S. Ct. at 1353–55. The Court noted that this approach was

“consistent with [its] longstanding rule that a plaintiff can use circumstantial proof

to rebut an employer’s apparently legitimate, nondiscriminatory reasons for

treating individuals within a protected class differently than those outside the



2
  We have considered Monroe’s arguments that he was discriminated against under
“mixed-motives,” “convincing mosaic,” and disparate treatment theories and note that, to the
extent these theories apply to FCRA disability discrimination claims, they fail for the same
reason. The same is true for Monroe’s argument that the FDOC failed to engage in an interactive
dialogue with him. See Frazier-White v. Gee, 818 F.3d 1249, 1257–58 (11th Cir. 2016) (holding
that where an employee failed to identify a reasonable accommodation, there was “no basis for
imposing liability on [the defendant] for failing to engage in an interactive process” (internal
quotation mark omitted)).

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protected class.” Id. at 1355. Subsequently, we determined that “[t]he rationale

and holding in Young [were] based on, and therefore limited to, the language in a

specific provision of the PDA” and, thus, were not automatically transferable

outside of that context. EEOC v. Catastrophe Mgmt. Sols., 852 F.3d 1018, 1025

(11th Cir. 2016).

      Monroe’s claims were brought under the FCRA and analyzed under the

ADA. But Young applies to the PDA and did not create any special considerations

for ADA claims. We note that, even if it Young does apply, Monroe did not

provide any evidence showing that he was treated differently than other employees

who took leave, as he did not show how long they were out, whether they were out

for medical reasons, or whether they had PTSD or depression. Accordingly, the

district court’s decision was not contrary to Young.

                                         III.

      Finally, we address whether the district court erred by granting summary

judgment in favor of the FDOC on Monroe’s retaliation claim. The FCRA

provides that an employer cannot “discriminate against any person because that

person has opposed” an unlawful employment practice or made a charge under the

FCRA. Fla. Stat. § 760.10(7). As with disability discrimination claims, retaliation

claims brought under the FCRA are analyzed under the ADA framework.

Frazier-White, 818 F.3d at 1258. The ADA, in turn, provides that “[n]o person


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shall discriminate against any individual because such individual has opposed any

act or practice made unlawful by [the ADA] or because such individual made a

charge . . . under [the ADA].” 42 U.S.C. § 12203(a).

        The burden-shifting analysis applicable to ADA discrimination claims is

applicable to ADA retaliation claims. See Batson v. Salvation Army, 897 F.3d

1320, 1328–29 (11th Cir. 2018). To establish a prima facie case of retaliation

under the ADA, the plaintiff must show, among other things, that he engaged in a

statutorily protected expression. Id. at 1329. The employee must have had a good

faith, reasonable belief that the activity was protected by the statute. Standard v.

A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998). As with

discrimination claims, once the prima facie case is established, and the defendant

produces a legitimate, non-discriminatory reason for an action, the plaintiff must

show that the defendant’s proffered reason was pretextual. Batson, 897 F.3d at

1329.

        Here, Monroe’s only purported protected activity was his request for

indefinite leave. Because our caselaw was and is clear that a request for indefinite

leave is not a reasonable accommodation, Monroe could not have had a good faith,

reasonable belief that he was engaging in protected activity. See Wood, 323 F.3d

at 1314; Standard, 161 F.3d at 1328. Additionally, Monroe did not present any

evidence showing that the FDOC’s proffered reason for terminating him—that he


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was unable to perform his assigned duties—was pretextual. Batson, 897 F.3d

at 1329. Accordingly, we affirm the district court’s grant of summary judgment on

Monroe’s retaliation claim.

      AFFIRMED.




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