              Case: 18-14488     Date Filed: 11/13/2019   Page: 1 of 16


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 18-14488
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 5:16-cv-00141-MW-MJF


DARRELL C. HARTWELL,

                                                                 Plaintiff-Appellant,

                                        versus

RICHARD V. SPENCER,
in his official capacity as Secretary
U.S. Department of the Navy,

                                                               Defendant-Appellee.

                            ________________________

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

                                (November 13, 2019)

Before MARCUS, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:
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      Darrell Hartwell appeals the district court’s grant of summary judgment in

favor of the Secretary of the United States Department of the Navy in his lawsuit

alleging employment discrimination based on disability, in violation of the

Rehabilitation Act, 29 U.S.C. § 794; and race, in violation of 42 U.S.C. § 1981 and

Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e-16. After

reviewing the record and the parties’ briefs, we affirm.

                                          I.

      Hartwell, a black male, worked as a firefighter/EMT for Naval Support

Activity (NSA) Panama City for more than 16 years, until he was fired by Fire

Chief James Elston—the same chief who hired Hartwell in 1998. For his entire

career at the fire department, Hartwell had trouble getting to work on time.

Hartwell and the other firefighters at NSA Panama City worked on alternating 24-

hour shifts, 7:00 a.m. to 7:00 a.m. According to Chief Elston, Hartwell was late

“almost every shift.” Until 2011, however, Hartwell rarely received more than

verbal reprimands for his lateness.

      In approximately 2011, the fire department made two changes that drew

more attention to Hartwell’s chronic tardiness. First, the fire department

abandoned a 2008 memorandum of agreement (MOA) with the local union, under

which firefighters were permitted to exchange up to 59 minutes at the beginning or

end of their shifts informally and without prior approval by management. Using


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the agreement, a firefighter running late for work could call and ask a coworker on

the outgoing shift to cover for him, and then return the favor later in the pay

period. Most days, one of the firefighters on the outgoing shift would agree to

cover for Hartwell when he was late. But regardless of whether Hartwell could

find a volunteer, if he was late, one of the firefighters coming off shift would have

to stay—like it or not—to make sure that the fire station was fully staffed until

Hartwell got there. In any event, the MOA conflicted with Navy “business rules,”

which required strict timekeeping and compensation for any employee working

overtime. So one day at roll call, fire department management announced that

informal time swaps under the MOA would no longer be allowed. Instead,

firefighters would be permitted to exchange time only occasionally, and only with

prior approval from a supervisor.

      Second, at around the same time, Hartwell’s long-time supervisor, Emory

Hutchinson, retired and was replaced by Assistant Chief Andrew Pfaff. Pfaff did

not appreciate Hartwell’s chronic lateness and commented to another firefighter

that he was going to “take care of” the problem.

      According to the available record, Hartwell had only been written up for

tardiness once before 2011. Beginning in April 2011, however, he was disciplined

more frequently and with increasing severity. He received a “Letter of Caution”

from Hutchinson in April 2011, a written reprimand from Pfaff in December 2012,


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a one-shift/two-day suspension in June 2013, and a four-shift/eight-day suspension

in March 2014, all related to his failure to get to work by the 7:00 a.m. shift

change. In October 2014, to avoid a 14-day suspension, Hartwell signed a “last

chance” agreement, in which he admitted to repeated tardiness and agreed to abide

by certain terms, including the requirement that he report to work on time. But he

was late again a few months later and was suspended for 14 calendar days. In

April 2015, after Hartwell was late to work yet again, Pfaff issued a written notice

proposing that he be removed from federal service.

      After his second violation of the “last chance” agreement, Hartwell notified

Pfaff that he had been recently diagnosed with Attention Deficit/Hyperactivity

Disorder (ADHD), Dysthymic Disorder (persistent depression), and Generalized

Anxiety Disorder. Hartwell said that these conditions caused him to be chronically

late, in part by causing insomnia, for which his doctor prescribed medication that

caused early morning drowsiness. He also submitted a “Request for Reasonable

Accommodation” to Chief Elston, asking that he be allowed to use up to an hour of

sick leave on the mornings that he was late. In addition, he verbally requested that

the fire department reinstate the MOA so that he could again exchange time

informally with other firefighters without prior approval. But after meeting with

Hartwell and reviewing the documentation that he submitted in support of his




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request, Chief Elston accepted Pfaff’s proposal and fired Hartwell effective June 1,

2015.

        Hartwell sued the Secretary of the Navy in federal court, claiming that his

chronic lateness was the result of his diagnosed medical conditions and that the fire

department had refused to implement a reasonable accommodation for his

conditions by reinstating the MOA. He also alleged that his termination was the

result of race discrimination.1 The district court granted the defendant’s motion for

summary judgment on both claims, and this appeal followed.

                                                II.

                                                A.

        “We review a district court’s grant of summary judgment de novo, viewing

all the evidence, and drawing all reasonable factual inferences, in favor of the

nonmoving party.” Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir.

2017). Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact does not

exist unless there is sufficient evidence favoring the nonmoving party for a

reasonable jury to return a verdict in its favor.” Chapman v. AI Transp., 229 F.3d



1
  Hartwell also included a retaliation claim in his complaint, but he affirmatively abandoned that
claim in the district court and has not raised any arguments on appeal related to retaliation.
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1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d

918, 921 (11th Cir. 1995)).

                                         B.

      Where, as here, a plaintiff relies on circumstantial evidence to prove

discrimination, the three-part burden-shifting framework from McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), provides “a sensible, orderly way to evaluate

the evidence in light of common experience as it bears on the critical question of

discrimination.” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978); see

Center v. Sec’y, Dep’t of Homeland Sec., Customs & Border Prot. Agency, 895

F.3d 1295, 1303 (11th Cir. 2018) (applying the McDonnell Douglas framework in

the context of a Rehabilitation Act claim). Under that framework, the plaintiff

must first establish a “prima facie case” of discrimination. McDonnell Douglas,

411 U.S. at 802; Center, 895 F.3d at 1303. If the plaintiff makes this showing, the

burden shifts to the employer, who must “articulate some legitimate,

nondiscriminatory reason” for its adverse employment action. McDonnell

Douglas, 411 U.S. at 802. And if the employer does so, the plaintiff must then “be

afforded a fair opportunity to show” that the employer’s proffered reason was

really pretext for discrimination. Id. at 804. In this third step of the McDonnell

Douglas framework, the plaintiff’s burden “merges with the ultimate burden of




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persuading the court that she has been the victim of intentional discrimination.”

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).

      At the summary judgment stage, the court reviews all of the relevant

evidence submitted by both parties; the “ultimate issue at summary judgment” is

“whether the evidence yields a reasonable inference of the employer’s

discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1346 n.86 (11th

Cir. 2011). A plaintiff may give rise to such an inference by (1) making out a

“prima facie case” of discrimination, as that term is used in McDonnell Douglas,

and (2) producing sufficient evidence for the trier of fact to find that the

employer’s proffered justification for its employment decision is pretext for

unlawful discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

133, 148 (2000); see also St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511

(1993).

      Here, Hartwell contends that his employer discriminated against him based

on disability—by failing to make reasonable accommodation for his medical

conditions—and based on race. We consider each claim in turn.

                                          III.

      The Rehabilitation Act prohibits federal agencies and other entities receiving

federal funds from discriminating against any “otherwise qualified individual with

a disability” solely because of his disability. 29 U.S.C. § 794(a). “To establish a


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prima facie case of discrimination under the Rehabilitation Act, a plaintiff 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 a result of his disability.”

Boyle, 866 F.3d at 1288. A disability is “a physical or mental impairment that

substantially limits one or more major life activities,” “a record of such

impairment,” or “being regarded as having such an impairment.” 2 42 U.S.C.

§ 12102(1) (ADA); see 29 U.S.C. § 705(9)(B) (incorporating the definition of

“disability” from § 12102). “A person with a disability is ‘otherwise qualified’ if

he is able to perform the essential functions of the job in question with or without a

reasonable accommodation.” Boyle, 866 F.3d at 1288. And an employer

discriminates against a disabled person in violation of the Rehabilitation Act if it

fails to provide a reasonable accommodation for the disability. Id. at 1289. The

questions whether an individual is qualified and whether a reasonable

accommodation can be made are determined with reference to the specific position

occupied by the plaintiff. Boyle, 866 F.3d at 1288.

       To prove that he is “otherwise qualified” for purposes of his Rehabilitation

Act claim, Hartwell “must show either that he can perform the essential functions




2
  Because we agree with the district court that Hartwell was not an “otherwise qualified
individual,” we need not decide whether Hartwell had a “disability” within the meaning of the
Rehabilitation Act.


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of his job without accommodation, or, failing that, show that he can perform the

essential functions of his job with a reasonable accommodation.” Davis v. Fla.

Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000). 3 If he cannot perform

all the essential functions of a firefighter/EMT, even with an accommodation, then

he is not a “qualified individual” within the meaning of the Act. See Davis, 205

F.3d at 1305.

       Hartwell contends that his medical conditions impair his time management

skills and the medication that he takes causes morning drowsiness, making it

impossible for him to consistently report for work by 7:00 a.m. The only

accommodation he requested was to allow him to come to work up to an hour late

without prior notice. A few days before he was fired, Hartwell provided a note

from his doctor stating that Hartwell’s condition was permanent, but that his

symptoms could be “minimized” “with long term individual counseling and

medication.” In other words, with or without the accommodation he requested,

Hartwell expected to continue his pattern of frequent tardiness indefinitely. The

pivotal issue on appeal, therefore, is whether punctuality is an essential function of

the job of a firefighter/EMT.




3
  The legal standards used to determine liability under the Rehabilitation Act are the same as
those used in comparable Americans with Disabilities Act (ADA) cases. See 29 U.S.C. § 794(d).
Accordingly, cases discussing ADA standards also serve as precedent for Rehabilitation Act
claims. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam).
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      “‘Essential functions’ are the fundamental job duties of a position that an

individual with a disability is actually required to perform.” Earl v. Mervyns, Inc.,

207 F.3d 1361, 1365 (2000) (per curiam). Under the ADA, “consideration shall be

given to the employer’s judgment as to what functions of a job are essential, and if

an employer has prepared a written description before advertising or interviewing

applicants for the job, this description shall be considered evidence of the essential

functions of the job.” 42 U.S.C. § 12111(8); see also 29 C.F.R. § 1630.2(n).

      James LaConte, Region Fire Chief for Navy Region Southeast, testified that

the Navy considers timely attendance to be an essential function of the job of a

firefighter/EMT. Although the parties have not identified a written job description

for the job of firefighter/EMT, an NSA Panama City Standard Operating Procedure

(SOP) supports this assessment. The SOP provides that firefighters are expected to

be present for roll call, in proper uniform and “physically and mentally capable of

performing their required duties,” at 7:00 a.m. daily. The same SOP also provides

that, should “an emergency occur slightly before or during roll call, the shift

coming on-duty will respond.”

      LaConte explained that the fire department establishes staffing levels based

on the number of firefighters necessary for the fire department to respond to

emergencies and to perform its other functions. If the required number of

firefighters are not present, the fire department may not be able to respond


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appropriately to an emergency. To ensure that the department is fully staffed at all

times, if a firefighter is late for work, one of the firefighters on the off-going shift

must stay until the missing firefighter comes in or is replaced. LaConte further

testified that requiring a firefighter to stay at work after the end of his shift

decreases safety due to fatigue and increases costs due to overtime.

      Hartwell does not dispute the importance of having a full complement of

firefighters present at the fire station and available to respond to emergencies—in

Hartwell’s own words, “A firefighter can’t do his job if he’s not at work.” Instead,

he argues that his requested accommodation was reasonable because the fire

department had allowed early/late relief for several years without adverse

consequences. But “prior accommodations do not make an accommodation

reasonable.” Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003). And just

because an employer has, in the past, done more than required to accommodate an

employee who cannot fulfill all the requirements of his job does not mean that the

employer must continue to do so. Boyle, 866 F.3d at 1289.

      We agree with the district court that reporting to work on time was an

essential function of Hartwell’s job as a firefighter/EMT. Because Hartwell could

not perform this function with or without his requested accommodation, he is not

“otherwise qualified” within the meaning of the Rehabilitation Act, and the district




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court correctly granted the defendant’s motion for summary judgment on this

claim.

                                           IV.

         We now turn to Hartwell’s race discrimination claim. Title VII prohibits

federal employers from discharging or discriminating against any individual

“based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16.

Similarly, 42 U.S.C. § 1981 protects employees against racial discrimination. See

42 U.S.C. § 1981(a); see also Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318,

1330 (11th Cir. 1998). We analyze Hartwell’s § 1981 and Title VII discrimination

claims under the same framework. See Standard, 161 F.3d at 1330.

         Hartwell does not dispute that Chief Elston made the final decision to fire

him. Nor does he contend that Chief Elston, who is also black, was motivated by

racial animus. Instead, he argues that Assistant Chief Pfaff, who is white, targeted

him for formal discipline and termination because of his race, and that Chief

Elston’s decision to fire him was based on Pfaff’s racially motivated disciplinary

actions and recommendation to terminate him. In support of his claim, Hartwell

testified that Pfaff frequently made disparaging comments about blacks, Latinos,

and other minorities. For example, Pfaff once referred to another black firefighter

as a “little monkey,” and he told Hartwell that he thought Hartwell’s children went




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to school for free because they were black. Pfaff also told a white firefighter to

watch out for Hartwell because Hartwell liked to “play the race card.”

      In a so-called “cat’s paw” case, an employer may be held liable for

employment discrimination when the decisionmaker, though unbiased himself,

relies—at least in part—upon the recommendation of a lower-level supervisor who

acts with discriminatory intent. See Stimpson v. City of Tuscaloosa, 186 F.3d

1328, 1332 (11th Cir. 1999) (per curiam); see also Staub v. Proctor Hosp., 562

U.S. 411, 419–20 (2011). In such a case, “the plaintiff must prove that the

discriminatory animus behind the recommendation, and not the underlying

employee misconduct identified in the recommendation, was an actual cause of the

other party’s decision to terminate the employee.” Stimpson, 186 F.3d at 1331. To

the extent that Hartwell raises a “cat’s paw” argument, his claim fails because he

has not shown that racial animus was the real reason for Pfaff’s disciplinary action

against Hartwell, rather than Hartwell’s chronic lateness.

      “Employment discrimination claims all require proof of discriminatory

intent.” Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1191 (11th Cir.

2016). “A plaintiff may raise a reasonable inference of the employer’s

discriminatory intent through various forms of circumstantial evidence.” Smith,

644 F.3d at 1328. Under the McDonnell Douglas framework, a plaintiff in a

disparate-treatment case may raise such an inference by showing that: (1) he is a


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member of the relevant protected class; (2) his employer subjected him to an

adverse employment action; (3) his employer treated him less favorably than

“similarly situated employees” who were not members of his protected class; and

(4) he was qualified for the position. Burke-Fowler v. Orange Cty., 447 F.3d 1319,

1323 (11th Cir. 2006) (per curiam). The parties agree that Hartwell is a member of

a protected class and that his termination was an adverse employment action. They

sharply disagree, however, on whether Hartwell has shown that he was treated

differently than any other “similarly situated” firefighter.

      Discrimination “‘consists of treating like cases differently.’ The converse,

of course, is also true: Treating different cases differently is not discriminatory, let

alone intentionally so.” Lewis v. City of Union City, 918 F.3d 1213, 1222–23 (11th

Cir. 2019) (en banc) (emphasis in the original) (internal citations omitted). To

permit an inference of discrimination, therefore, Hartwell must show that he and

his proposed “comparator” were “similarly situated in all material respects.” Id. at

1224. In the usual case, a comparator who is “similarly situated in all material

respects” “will have engaged in the same basic conduct (or misconduct) as the

plaintiff”; “will have been subject to the same employment policy, guideline, or

rule”; “will ordinarily (although not invariably) have been under the jurisdiction of

the same supervisor as the plaintiff”; and “will share the plaintiff’s employment or

disciplinary history.” Id. at 1227.


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      To show that he was treated differently than other, “similarly situated” white

employees, Hartwell offered a single comparator: Jason Gray, a white firefighter.

Hartwell claimed that Gray was also frequently late, and that on several occasions

Gray overslept by more than an hour and other firefighters had to go to his house

to wake him up. Gray is not a valid comparator, however, because he was

differently situated in two material respects.

      First, Gray worked on a different shift and had a different immediate

supervisor, Assistant Chief Sam Turner. This difference is especially significant

here, where Hartwell claims that his immediate supervisor, Pfaff, was the

discriminatory actor. It makes no sense to say that Turner’s lenience toward Gray

supports the allegation that Pfaff treated white firefighters differently. Hartwell

has not presented any evidence to show that Pfaff treated chronic lateness by white

firefighters under his command any differently than he did Hartwell’s misconduct.

      Second, the evidence shows that Gray was late to work much less frequently

than Hartwell. Chief Elston testified that Hartwell “was late substantially more

than any other firefighter at NSA Panama City, including substantially more than

Jason Gray.” According to Chief Elston, who attended the 7:00 a.m. change of

shift, Hartwell was late “almost every shift.” Gray, by contrast, was counseled

about his tardiness and his conduct improved. According to Gray’s supervisor,




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Gray was late only twice in the year before Hartwell was fired. Gray himself

testified that he had been late approximately ten times in eight or nine years.

         Because Gray had a different supervisor and his conduct was significantly

less egregious than Hartwell’s, he was not “similarly situated in all material

respects,” and the fact that he was not disciplined as severely as Hartwell does not

give rise to an inference of discrimination. Hartwell has not offered any other

evidence to support his allegation that Pfaff’s alleged racial animus was the real

reason for his termination. Accordingly, the district court correctly granted the

defendant’s motion for summary judgment on Hartwell’s racial discrimination

claim.

                                           V.

         Because Hartwell has not established that a reasonable juror could find that

the fire department terminated his employment because of a disability in violation

of the Rehabilitation Act, or based on his race in violation of Title VII and § 1981,

we affirm the district court’s grant of summary judgment in favor of the defendant.

         AFFIRMED.




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