                                                                [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________           FILED
                                                 U.S. COURT OF APPEALS
                              No. 10-15710         ELEVENTH CIRCUIT
                          Non-Argument Calendar     NOVEMBER 2, 2011
                        ________________________        JOHN LEY
                                                         CLERK
                     D.C. Docket No. 7:08-cv-00156-HL

JENNY I. MORALES,

                                llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellant,

                                    versus

GEORGIA DEPARTMENT OF HUMAN RESOURCES,
Department of Human Resources, Division of Family &
Children Services,

                               llllllllllllllllllllllllllllllllllllllllDefendant-Appellee.

                       ________________________

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

                            (November 2, 2011)



Before HULL, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Jenny Morales appeals from the district court’s grant of summary judgment

in favor of the Georgia Department of Human Resources, Division of Family and

Children Services (“DFCS”) in her disability discrimination and retaliation suit

under the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 794 and

42 U.S.C. § 1981. First, Morales argues that the district court erred when it

dismissed her termination claim because the Rehabilitation Act did not require that

she exhaust her administrative remedies before filing suit. Second, Morales

argues that, contrary to the court’s finding, she was disabled in the major life

activity of walking because she had medical restrictions that limited her walking.

Third, Morales contends that DFCS regarded her as disabled, which it showed

when it placed her on Family and Medical Leave (“FML”) because it could not

accommodate her medical restrictions. Fourth, Morales asserts that she

established a prima facie case of retaliation by showing close temporal proximity

between her charges of discrimination and her written reprimands, placement on

FML, and termination. Finally, Morales contends that DFCS’s reasons for placing

Morales on leave and firing her were pretextual, as evidenced by DFCS’s actions

following Morales’s charges of discrimination.

      “[W]e review the granting of summary judgment de novo, and the district

court’s findings of fact for clear error.” Robinson v. Tyson Foods, Inc., 595 F.3d

                                          2
1269, 1273 (11th Cir. 2010). If the movant satisfies the burden of production

showing that there is no genuine issue of fact, “the nonmoving party must present

evidence beyond the pleadings showing that a reasonable jury could find in its

favor.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008) (quotation

omitted). “We draw all factual inferences in a light most favorable to the non-

moving party.” Id. Nevertheless, the non-moving party cannot create a genuine

issue of material fact through speculation. Id. Moreover, the non-moving party

cannot create a genuine issue through evidence that is “merely colorable” or “not

significantly probative.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50,

106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).

      I.    Termination Claim

      The Rehabilitation Act prohibits federal agencies from discriminating in

employment against qualified individuals with disabilities. Ellis v. England, 432

F.3d 1321, 1326 (11th Cir. 2005); 29 U.S.C. § 794(a). “[P]rivate actions against

federal government employers under the [Rehabilitation] Act, whether brought

under section 791 or 794, must satisfy the requirement of exhaustion of

administrative remedies in the manner prescribed by section [794a(a)(1)] and thus

by Title VII.” Doe v. Garrett, 903 F.2d 1455, 1461 (11th Cir. 1990) (brackets in

original) (quotation omitted). However, an action against a non-federal employer

                                         3
under the Rehabilitation Act does not require exhaustion of administrative

remedies. See id. at 1459-61; 29 U.S.C. § 794a(a)(2); Gean v. Hattaway, 330 F.3d

758, 774-75 (6th Cir. 2003) (holding that suits against non-federal employers

under § 794a(a)(2) do not require exhaustion of administrative remedies).

      DFCS has conceded on appeal that the district court erred when it dismissed

Morales’s termination claim for failure to exhaust. In any event, we may affirm a

judgment on any legal ground, regardless of the grounds addressed and relied

upon by the district court. See National R.R. Passenger Corp. v. Rountree

Transport and Rigging, 286 F.3d 1233, 1263 (11th Cir. 2002) (explaining that an

appellate court may affirm the district court’s grant of summary judgment “as long

as the judgment entered is correct on any legal ground regardless of the grounds

addressed, adopted, or rejected by the district court”) (quotation omitted). As

discussed below, DFCS presented legitimate, non-retaliatory reasons for

terminating Morales, and Morales failed to show that the reasons were pretextual.

      II.    Whether Morales Was Disabled

      “The standard for determining liability under the Rehabilitation Act is the

same as that under the Americans with Disabilities Act.” Ellis v. England, 432

F.3d 1321, 1326 (11th Cir. 2005). “[T]hus, cases involving the ADA are




                                         4
precedent for those involving the Rehabilitation Act.” Id.; see also 29 U.S.C. § 794(d).

       “In order to establish a prima facie case of discrimination under the ADA,

[the plaintiff] must demonstrate that she (1) is disabled, (2) is a qualified

individual, and (3) was subjected to unlawful discrimination because of her

disability.” Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000); 42 U.S.C.

§ 12112(a). The ADA defines disability as “(A) a physical or mental impairment

that substantially limits one or more major life activities of such individual; (B) a

record of such an impairment; or (C) being regarded as having such an

impairment.” 42 U.S.C. § 12102(1).1 On the issue of whether an impairment

substantially limits a major life activity, “[w]e are guided . . . by the regulations

promulgated by the Equal Employment Opportunity Commission, which state that

major life activities means functions such as caring for oneself, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Cash,

231 F.3d at 1305 (quotation omitted). The ADA defines a “qualified individual”



      1
              Congress amended the ADA by enacting the ADA Amendments Act
(“ADAAA”), effective January 1, 2009. See Pub. L. No. 110-325, 122 Stat. 3553. Among
other things, the Act expanded the definition of disability. Id. § 4. The district court
explicitly chose not to apply the changes in the ADAAA retroactively to Morales’s claims.
On appeal, Morales has not argued that the court erred in this decision or that the ADAAA
should be applied retroactively. Thus, we need not decide in this case whether the ADAAA
applies retroactively. See Horsley v. Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002)
(holding that we need not address an issue that was not raised by the appellant on appeal).

                                            5
as an individual with a disability “who, with or without reasonable

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

§ 12111(8).

      As an initial matter, Morales fails to raise any arguments regarding her

disability claims for a mental impairment, back injury, standing, and lifting, and

thus, she has abandoned these claims. See Marek v. Singletary, 62 F.3d 1295,

1298 n.2 (11th Cir. 1995) (holding that “[i]ssues not clearly raised in the briefs are

considered abandoned”).

      The court did not err in finding that Morales was not disabled. She did not

request a handicap permit or special parking space, she used a cane to mitigate her

impairment, she was released back to work by her doctor a number of times, and

she only received an impairment rating of nine percent for her lower extremity and

four percent overall.

      III.    Whether Morales Was Regarded As Disabled

      Under the EEOC regulations interpreting the ADA, to be “regarded as”

having an impairment means that an individual:

      (1) Has a physical or mental impairment that does not substantially
      limit major life activities but is treated by a covered entity as
      constituting such limitation;




                                          6
      (2) Has a physical or mental impairment that substantially limits
      major life activities only as a result of the attitudes of others toward
      such impairment; or

      (3) Has none of the impairments defined in paragraph (h)(1) or (2) of
      this section but is treated by a covered entity as having a substantially
      limiting impairment.

D’Angelo v. Conagra Foods, Inc., 422 F.3d 1220, 1228 (11th Cir. 2005) (citing 29

C.F.R. § 1630.2(l)). “In order for [the plaintiff] to establish that [the defendant]

regarded her as substantially limited in her ability to work, she must prove that

[the defendant] considered her as significantly restricted in the ability to perform

either a class of jobs or a broad range of jobs in various classes as compared to the

average person having comparable training, skills, and abilities.” Cash, 231 F.3d

at 1306 (quotation omitted).

      The evidence did not show that DFCS regarded Morales as disabled.

Although DFCS placed Morales on FML because it could not accommodate her in

her current position, DFCS never said that it regarded Morales as incapable of

working a broad range of jobs. Furthermore, DFCS did not need to provide

Morales with a different position because (1) Morales never asked for a voluntary

demotion and (2) DFCS did not have an accommodating position for her. See

Willis v. Conopco, Inc., 108 F.3d 282, 284 (11th Cir.1997) (holding that




                                           7
reassignment is only a reasonable accommodation if a position for which the

plaintiff is qualified is available).



       IV.    Prima Facie Retaliation

       The Rehabilitation Act incorporates the anti-retaliation provision from

§ 12203(a) of the ADA. 29 U.S.C. §§ 791(g), 793(d), 794(d). Retaliation claims

under the ADA are analyzed under the framework of Title VII. See Standard v.

A.B.E.L. Services, Inc., 161 F.3d 1318, 1328 (11th Cir. 1998) (holding that “[w]e

assess ADA retaliation claims under the same framework we employ for

retaliation claims under Title VII”) (quotation omitted).

       Title VII prohibits an employer from retaliating against an employee for

filing a charge or reporting discrimination. 42 U.S.C. § 2000e-3(a). A retaliation

claim is analyzed according to the burden-shifting framework established by

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

(1973). Goldsmith v. City of Artmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993).

       To establish a prima facie case for retaliation, a plaintiff may show that: (1)

he engaged in a statutorily protected activity; (2) he suffered a materially adverse

employment action; and (3) the adverse employment action was causally related to




                                           8
the protected activity. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,

1277 (11th Cir. 2008).

      Under the first prong, an employee engages in statutorily protected activity

if he has opposed any employment practice made unlawful by Title VII. 42 U.S.C.

§ 2000e-3(a); Clover v. Total System Services, Inc., 176 F.3d 1346, 1350 (11th

Cir. 1999). As to the second prong of a prima facie case, “a plaintiff must show

that a reasonable employee would have found the challenged action materially

adverse.” Burlington Northern and Sante Fe Ry. Co. v. White, 548 U.S. 53, 68,

126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006). A materially adverse action is one

that “well might have dissuaded a reasonable worker from making or supporting a

charge of discrimination.” Id. (quotations omitted). In Burlington Northern, the

Supreme Court clarified that “[t]he antiretaliation provision [of Title VII] protects

an individual not from all retaliation, but from retaliation that produces an injury

or harm.” Id. at 67, 126 S.Ct. at 2414. The acts must be material and significant

and not trivial. Id. at 68, 126 S.Ct. at 2415.

      Under the third prong, we construe the causal-relationship element broadly,

so that a plaintiff simply has to demonstrate that the protected activity and adverse

action are not completely unrelated. Higdon v. Jackson, 393 F.3d 1211, 1220

(11th Cir. 2004). A “close temporal proximity” between the employee’s protected

                                           9
activity and adverse actions may be sufficient circumstantial evidence to create a

genuine issue of material fact of a causal connection. Brungart v. BellSouth

Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000).




      None of Morales’s evaluations or reprimands were (1) adverse or (2)

causally connected to her charges of discrimination. Morales failed to show that

the Documentation of Counseling was a material injury or harm. There is no

evidence that the Documentation affected her salary or job status. Further, she

failed to show that the Documentation would have affected any of her future pay

raises. Additionally, DFCS’s removal of Morales from the Medicaid application

position did not dissuade Morales from making another charge of discrimination

on May 13, 2008. Moreover, the move out of the Medicaid position occurred over

four months after her initial charge, and she thus fails to show any temporal

proximity or causal connection between the two. Similarly, the uncontested

evidence shows that the Documentation of Counseling was contemplated before




                                         10
she filed her second charge.2 Thus, Morales failed to establish a prima facie case

of retaliation as to her evaluations and reprimands.

       V.      Pretext

       Under the McDonnell Douglas framework, if the plaintiff establishes a

prima facie case of discrimination, then the defendant must show a legitimate,

non-discriminatory reason for its employment action. Burke-Fowler v. Orange

County, 447 F.3d 1319, 1323 (11th Cir. 2006). If the defendant’s reason is

legitimate and non-discriminatory, then the plaintiff must prove that the reason

provided by the defendant is a pretext for unlawful discrimination. Id.

       DFCS placed Morales on FML because it could not accommodate her

restriction of walking only one hour per day. Contrary to her contention, Morales

could not have been accommodated by being placed in another position because

DFCS had filled all of its positions and Morales never asked for a voluntary

demotion. Furthermore, DFCS fired Morales because she failed to contact DFCS

or return to work at the end of her FML. Morales provided no evidence that

DFCS’s reasons for placing her on leave and firing her were pretextual.


       2
               Morales’s complaint cited her filing of the charge as the instigating event that caused
DFCS to retaliate against her. It was not until her response to DFCS’s motion for summary
judgment that Morales claimed she had warned in April that she would file again. However, a
plaintiff may not amend her complaint through argument in a brief opposing summary judgment.
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).

                                                 11
      Accordingly, upon review of the record and consideration of the parties’

briefs, we affirm the district court’s grant of summary judgment in favor of DFCS.

      AFFIRMED.3




      3
            Morales’s request for oral argument is denied.

                                            12
