             Case: 14-13654    Date Filed: 03/06/2015   Page: 1 of 12


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 14-13654
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:11-cv-03392-MHS



LAFRETA DALTON,

                                                               Plaintiff-Appellant,

                                  versus

CENTERS FOR DISEASE CONTROL AND PREVENTION
AND AGENCY FOR TOXIC SUBSTANCES AND DISEASE
REGISTRY,
HILDA SHEPEARD,
both individually and in her professional capacity as the Chief,
Health Promotion and Community Involvement Branch, for the
Atlanta Branch for the Atlanta office of the Agency for Toxic
Substances and Disease Registry,
SYLVIA ALLEN-LEWIS, both individually and in her professional
capacity as the Lead Health Education Specialist, Health Promotion
and Community Involvement Branch and the Plaintiff's immediate
supervisor at the Atlanta branch of the Agency for Toxic Substances
and Disease Registry,
UNITED STATES OF AMERICA,
SECRETARY OF HEALTH AND HUMAN SERVICES, et al.,

                                                            Defendants-Appellees.
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                         ________________________

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

                                (March 6, 2015)

Before TJOFLAT, HULL and ROSENBAUM, Circuit Judges.

PER CURIAM:

       This case arises out of LaFreta Dalton’s employment as a Health

Communications Specialist at the Agency for Toxic Substances and Disease

Registry (“Agency”), which is part of the Centers for Disease Control and

Prevention (“CDC”), a division of the United States Department of Health and

Human Services (“HHS”). As a Health Communications Specialist, Dalton

worked with communities that lived near contaminated sites to educate them and

provide information they needed. She was supervised by Sylvia Allen-Lewis,

her team leader. Allen-Lewis’s supervisor was Hilda Shepeard.

      On April 14, 2010, Allen-Lewis met with Dalton and provided her with a

quarterly review. Dalton was unhappy with Allen-Lewis’s critique of her job

performance and the next day contacted HHS’s Office of Dispute Resolution and

Equal Employment Opportunity (“EEO”) to complain about the review and to

request a transfer to another division within CDC. While her complaint was being

considered, Allen-Lewis met with Dalton again, on June 23, 2010, and counselled


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her regarding her failure to complete certain assigned tasks adequately. The next,

day, Dalton became ill at work, called 911 and was taken by ambulance out of the

building.

      Dalton was granted leave for a short period under the Family and Medical

Leave Act (“FMLA”). She was denied further FMLA leave after she failed to

submit the additional medical documentation Allen-Lewis requested. Shepeard

thereafter sent Dalton a memorandum notifying her that she was being placed on

Absence Without Leave and that since she had not submitted the requested medical

documentation, the Agency was unable to continue her FMLA status. The

memorandum also ordered Dalton to either report for duty or request FMLA leave

and provide acceptable medical documentation to justify the request. Dalton did

neither. Shepeard consequently issued an Official Reprimand, charging her with

failure to follow instructions. Dalton responded through her attorney, submitting

documentation purporting to support her request for further FMLA leave. The

Agency accepted the submission and adjusted Dalton’s “leave record to reflect

approved use of annual, sick, and Leave without Pay to cover previously granted

FMLA leave.”

      As for Dalton’s request for a transfer, which it treated as a request for

reasonable accommodation (for a medical condition) under the Rehabilitation Act,

the CDC had her examined by a psychiatrist. The psychiatrist concluded that


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Dalton did not display “ any cognitive or psychiatric problems that would

preclude her from working,” but “returning to work” under Allen-Lewis and

Shepeard would not, in his view, be a “viable plan,” considering that she “feels

considerable anxiety and resentment towards” them. He felt that removing

Dalton from “continued interactions” with Allen-Lewis and Shepeard would

“ minimize her anxiety and decrease the risk of exacerbation of her mood

symptoms.”

      The CDC accepted the psychiatrist’s recommendation and notified Dalton

that it had assigned her to another division of the Agency; she would report to that

division’s deputy director and would have no further contact with Allen-Lewis or

Shepeard. Dalton rejected this accommodation and did not return to work. As a

result, her employment was terminated.

      After filing a complaint with the EEO on April 15, 2010, and purportedly

 exhausting her administrative remedies, Dalton brought this lawsuit against the

 CDC, the Agency, Allen-Lewis and Shepherd claiming (1) discrimination and

 retaliation in violation of Title VII of the Civil Rights Act of 1964, as

 amended, 42 U.S.C. § 2000e, et seq. (“Title VII”) and 42 U.S.C. § 1981; (2) a

 violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101

 et seq.; (3) a violation of the FMLA, 29 U.S.C. § 2601 et seq.; (4) intentional

 infliction of emotional distress; and (5) negligent retention, supervision and

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 training.1 The defendants moved the District Court to dismiss Dalton’s

 complaint on various grounds, among them, that the defendants were not proper

 parties to Dalton’s Title VII claims; that many of Dalton’s ADA and Title VII

 claims had not been administratively exhausted because she had not included

 them in the complaint she filed with the EEO office; and that the complaint

 failed to state a claim for relief under the FMLA and § 1981. The District Court

 granted the defendants’ motion to dismiss in full, but granted Dalton leave to

 amend her complaint to correct the deficiencies in her disability discrimination

 and Title VII claims, provided that they were limited to her administratively

 exhausted allegations.

           Dalton filed an amended complaint and this time named the Secretary of

 HHS as the defendant. 2 The amended complaint presented two claims that are

 relevant here.3 The first claim, brought under Title VII, is that the Agency

 retaliated against her for filing a complaint with the EEO by denying her FMLA


       1
         Dalton’s complaint named as defendants the CDC, the Agency, Allen-Lewis and
Shepeard, and the United States. With leave of court, and as indicated in the text, supra, Dalton
subsequently filed an amended complaint, which named the Secretary of the Department of
Health and Human Services as the sole defendant.
       2
           The amended complaint also named as defendants HHS and CDC. The Secretary was
the proper defendant for the relief Dalton sought, and was treated as such by the District Court in
its order granting the Secretary’s motion for summary judgment and dismissing the action. Doc.
101.
       3
          The amended complaint is not a model of clarity, so we take the description of the
claims from the Report and Recommendation the Magistrate Judge submitted to the District
Court, and the District Court adopted in full in granting the Secretary summary judgment.
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leave. 4 The second claim, brought under the Rehabilitation Act, 29 U.S.C. § 701

et seq., is that the CDC discriminated against her because of her disability,

“depression and severe anxiety and Post Traumatic Stress Disorder.” 5 Following

discovery, the Secretary moved the District Court for summary judgment.

Addressing the two claims set out above, the Secretary argued that the Title VII

claim failed because Dalton had not presented evidence that the reasons the

Agency gave for denying FMLA leave were pretextual, i.e., that they were not the

real reasons for the denial. The Secretary also argued that the Rehabilitation Act

claim failed because transferring an employee solely to allow her to work under a

different supervisor constituted a “reasonable accommodation.”

         The District Court granted the Secretary’s motion. Dalton now appeals the

District Court’s orders dismissing her initial complaint and granting summary on

Title VII and Rehabilitation Act claims asserted in her amended complaint.

         Turning to the dismissal of her initial complaint, Dalton argues that the

District Court erred in dismissing seven of the Title VII claims “factually”

presented in her complaint for lack of administrative exhaustion. She contends

that those claims were sufficiently “like, or related to” the claims in her EEO

complaint that they should be considered exhausted. Addressing the summary


     4
         Doc. 95, at 32–34.
     5
         Doc. 34, at 14.
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judgment, she argues, with respect to her Title VII claim, that court erred in

concluding that she had failed to show that the Agency’s proffered legitimate,

non-retaliatory reasons for denying FMLA leave were mere pretext for retaliation.

She argues that the court erred in rejecting her Rehabilitation Act claim because,

in her view, she established that the CDC failed to provide her with a reasonable

accommodation for her disability. We find no merit in Dalton’s appeal of the two

District Court orders and accordingly affirm.

                                          I.


      As Dalton properly recognizes, prior to bringing her Title VII claims she had

to exhaust her administrative remedies. Crawford v. Babbitt, 186 F.3d 1322, 1326

(11th Cir. 1999). The purpose of the exhaustion requirement is “to give the agency

the information it needs to investigate and resolve the dispute between the

employee and the employer.” Brown v. Snow, 440 F.3d 1259, 1263 (11th Cir.

2006) (quotation marks omitted). In exhausting her claims, Dalton had a duty to

make a good-faith effort to cooperate with the EEO by providing any relevant

information the EEO requested. Crawford, 186 F.3d at 1326.


      The seven claims Dalton says the District Court should have recognized in

her initial complaint were not asserted as discrete claims; rather, they were nothing

more than allegations in the complaint’s “Statement of Facts.” The EEO did not


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perceive as discrete claims the seven claims she says her initial complaint

“factually” presented. The seven claims first appeared as discrete claims in the

defendants’ motion to dismiss, as part of their argument that the claims had not

been exhausted. Dalton concedes that she never presented the claims, as discrete

claims, to the EEO or otherwise put the EEO on notice that it should investigate

them, even though the EEO asked her to identify any claims beyond those

discretely asserted that it ought to investigate.

      A party standing in Dalton’s shoes must provide information when the EEO

requests it. Crawford, 186 F.3d at 1326. Dalton failed to honor the requests the

EEO made. In short, she failed to cooperate with the EEO in good faith, to

facilitate a full investigation. See id. Consequently, the District Court did not err

in dismissing the seven claims at issue for lack of administrative exhaustion.

                                                II.

      We review de novo the District Court’s decision granting the Secretary’s

motion for summary judgment, taking the evidence in the record in the light most

favorable to the Dalton and drawing all inferences in her favor. Frederick v.

Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). In opposing the

Secretary’s motion, Dalton was not entitled to “rest upon the mere allegations” of

her amended complaint; instead, she had to convince the District Court that the

evidence in the record created a genuine issue of “material fact” for trial.


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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91

L.Ed.2d 202 (1986) (quotations omitted). With these principles in mind, we turn to

the Title VII and Rehabilitation Act claims now before us.

                                                 A.

         Title VII prohibits the federal government, qua employer, from engaging in

“discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C.

§ 2000e-16(a). Title VII also makes it unlawful for the government, qua employer,

to retaliate against an employee because she has opposed an unlawful employment

practice. 42 U.S.C. § 2000e-3(a).

         If the employee establishes a prima facie case of retaliation, and the

employer articulates a legitimate, non-retaliatory reason for its employment action,

then the employee must show that the reason proffered by the employer was not

the true one, but, instead, was more likely a pretext for retaliation. Goldsmith v.

City of Artmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (applying the McDonnell

Douglas 6 framework to Title VII retaliation cases).

         Dalton claims that the Agency denied her FMLA leave in retaliation for her

filing a complaint with the EEO on April 15, 2010. The Secretary justified the

Agency’s action by saying that Dalton failed “to provide a certification from her

physician indicating whether the leave was needed on an intermittent basis or for a

         6
             McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668
(1973)
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continuous period and the probable duration of her incapacity,” as required by 5

C.F.R. § 630.1208(b)(2).7 Dalton could have shown that this reason was mere

pretext by coming forth with evidence that the Agency’s motive was retaliation

and that its proffered reason was unworthy of credence. Texas Dep’t of Cmty.

Affiairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095, 67 L. Ed. 2d 207

(1981). But she did not. She pointed to nothing in the evidentiary record to show

that Shepeard, who was acting for the Agency in denying FMLA leave, did not

honestly believe that Dalton had submitted inadequate paperwork for the leave.

Moreover, the fact that Shepeard immediately granted FMLA leave when Dalton

first requested it weakens, if not destroys altogether, Dalton’s argument that the

subsequent denial of leave was a pretext. We find no error in the District Court’s

rejection of Dalton’s Title VII retaliation claim.

                                                B.

       The Rehabilitation Act “prohibits federal agencies from discriminating in

employment against otherwise qualified individuals with a disability.” Mullins v.

Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000).8 An employer discriminates under


       7
         The certification Dalton’s physician did provide indicated, with respect to her situation,
“duration estimate two weeks at a time” and “present incapacity could last up to three to four
months until rehabilitation is complete.”
       8
         “To establish a prima facie case of discrimination under the Act, an individual must
show that (1) he has a disability; (2) he is otherwise qualified for the position; and (3) he was
subjected to unlawful discrimination as the result of his disability.” Sutton v. Lader, 185 1203,
1207 (11th Cir. 1999) (citing Gordon v. E.L. Hamm & Assocs., 100 F.3d 907, 910 (11th Cir.
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the Rehabilitation Act when it fails to provide a “reasonable accommodation” for

an employee with a disability, unless the accommodation would cause undue

hardship on the employer. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255

(11th Cir. 2001). The burden of identifying an accommodation that would allow a

qualified individual to perform the job rests with that individual, as does the

ultimate burden of persuasion to demonstrate that such an accommodation is

reasonable. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278,

1286 (11th Cir. 1997).

       The Rehabilitation Act may require an employer to transfer a disabled

employee to a vacant position as a reasonable accommodation. Lucas, 257 F.3d at

1256. However, “[e]mployers are not required to transform the position into

another one by eliminating functions that are essential to the nature of the job as it

exists.” Id.

       Dalton failed to carry her burden to identify an accommodation that would

allow her to perform her job. After she became disabled, she did not identify a job

within the Agency that was available and that she could do; nor did she identify a

vacant position outside the Agency. Dalton points to the complaint she made to

the EEO on April 15, 2010, in which she requested a transfer to a different



1996).” The plaintiff in E.L. Hamm & Associates brought his claim under the ADA. The
standard for determining liability under the Rehabilitation Act is the same as that under the
ADA. Sutton, 185 F.3d at 1208.
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department within the CDC, as evidence that she identified an available position.

However, the complaint was made before she became disabled, on June 24, 2010,

and several months before she requested a reasonable accommodation through a

Reasonable Accommodation Coordinator in March 2011. Identifying a position

that was available before she became disabled obviously could not satisfy Dalton’s

burden to identify a reasonable accommodation. See Stewart, 117 F.3d at 1286.

      Assuming for sake of argument, however, that the CDC was required to

provide Dalton with a reasonable accommodation, the record indicates that it did

just that when it offered her a position with a new supervisor, in a different

location, which would have allowed her to avoid having to communicate with

Allen-Lewis and Shepeard.

                                          III

      For the foregoing reasons, we affirm the judgment of the District Court.

AFFIRMED.




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