           Case: 13-14479   Date Filed: 09/08/2014   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-14479
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 2:11-cv-03609-VEH



ROBERT A. CHANCEY,

                                                            Plaintiff-Appellant,

                                  versus

FAIRFIELD SOUTHERN COMPANY, INC.,
UNITED STATES STEEL CORPORATION,

                                                        Defendants-Appellees,

EMPLOYEE ASSISTANCE SERVICES,

                                                                    Defendant.

                      ________________________

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

                            (September 8, 2014)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.
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PER CURIAM:

      Robert Chancey appeals the summary judgment in favor of his previous

employer, Fairfield Southern Company, Inc., and its parent company, United States

Steel Corporation, and against his complaint of discrimination in violation of the

Americans with Disabilities Act. See 42 U.S.C. § 12101, et seq. We affirm.

      Chancey alleged that Fairfield put him on suspension after he refused to

work a double shift and his supervisor noticed he was trembling; required him to

undergo psychological testing and treatment; and refused to reinstate him as a train

operator helper after he was released to return to work by his treating physician.

Chancey, who served in the military before being hired by Fairfield, was diagnosed

with Post Traumatic Stress Disorder, treated, and released to return to work by

Andrea Hood, a nurse practitioner at Grayson & Associates, but Dr. Cheryl Szabo,

the Medical Director for US Steel, determined that Chancey should not work on or

around moving trains because of the physical and mental impairments caused by

his disorder and because of the cumulative effect of the four medications

prescribed as part of his treatment regimen, Seroquel, Zoloft, Ativan, and

Wellbutrin. Chancey complained that Fairfield discriminated against him based on

his disability, see id. § 12112(a), and that Fairfield violated the Act by requiring

him to undergo a medical examination to determine the nature or severity of his

disorder, see id. § 12112(d)(4)(A).


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      Fairfield moved for summary judgment and argued that Chancey was not a

“qualified individual” protected by the Act; he was equitably estopped from

arguing that he was a qualified individual after he represented that he was disabled

to and obtained benefits from the Department of Veterans Affairs, see Cleveland v.

Policy Mgmt. Sys. Corp., 526 U.S. 795, 119 S. Ct. 1597 (1999); and his medical

examination was permitted under the Act because it was “job related and

consistent with business necessity,” 42 U.S.C. § 12112(d)(4)(A). Fairfield

attached to its motion a written description of the mental and physical requirements

for train operator helpers; Chancey’s application for disability benefits; Chancey’s

deposition testimony; and the decision of the Department rating Chancey with a

“50 percent” disability because of an “occupational and social impairment with

reduced reliability and productivity due to such symptoms as: Flattened affect; . . .

difficulty in understanding complex commands; impairment of short- and long-

term memory (e.g., retention of only highly learned material; forgetting to

complete tasks); impaired judgment; impaired abstract thinking; disturbances of

motivation and mood; [and] difficulty in establishing and maintain[ing] effective

work and social relationships.” Chancey responded that he was a qualified

individual because he could continue to perform the functions of his job without

accommodation; his medication did not hamper his ability to complete the




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functions of his job; and he had been released to return to work by his treating

physician.

      The district court entered summary judgment in favor of Fairfield. The

district court ruled that Chancey failed to establish a prima facie case of

discrimination based on a disability because he could not prove that he was a

“qualified individual” under the Act. See id. § 12112(a); Cleveland, 526 U.S. 795,

119 S. Ct. 1597. The district court ruled that Chancey was like the plaintiff in

Cleveland, who was estopped from arguing that he was a qualified individual

under the Act after making a sworn representation to the Social Security

Administration that he was totally disabled. Cleveland, 526 U.S. at 806–07, 119 S.

Ct. at 1603–04. The district court reasoned that Chancey was estopped from

arguing that he was a qualified individual because he had told the Department that

he was disabled and had applied for full disability benefits and because the

Department had found that he could not perform essential functions of a train

operator helper. The district court also ruled that Chancey abandoned his

complaint about the propriety of his medical examination. See 42 U.S.C.

§ 12112(d)(4)(A).

      We review a summary judgment de novo. Fitzpatrick v. City of Atlanta, 2

F.3d 1112, 1117 (11th Cir. 1993). Summary judgment is appropriate when there is

no genuine dispute as to any material fact and the movant is entitled to judgment as


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a matter of law. Fed. R. Civ. P. 56(a). “When reviewing a grant of summary

judgment, [we] may affirm if there exists any adequate ground for doing so,

regardless of whether it is the one on which the district court relied.” Fitzpatrick, 2

F.3d at 1117.

      Chancey challenges the summary judgment against his complaint that he

was discriminated because of his disability. He argues that he is not estopped from

arguing that he is a qualified individual because, unlike the plaintiff in Cleveland,

he did not state in his application to the Department that he was “totally unable to

work in any occupation” or “totally disabled.” But we need not decide whether

Cleveland applies to Chancey. We affirm on the alternative ground fairly

presented in the record that Chancey failed to create a genuine factual dispute

about whether he was a qualified individual protected by the Act.

      The Act prohibits employers from “discriminat[ing] against a qualified

individual on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of employment.” 42 U.S.C.

§ 12112(a). To survive summary judgment, a plaintiff must prove by a

preponderance of the evidence that he is disabled and that he is a qualified

individual who was discriminated against because of his disability. See Hilburn v.

Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226 (11th Cir. 1999). A “qualified


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individual” is a person “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). An employer is not required to provide a

reasonable accommodation unless and until the employee makes a specific demand

for an accommodation. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d

1361, 1363–64 (11th Cir. 1999).

      The written description of the mental and physical requirements for train

operator helpers submitted by Fairfield served as “evidence of the essential

functions of [Chancey’s] job.” See 42 U.S.C. § 12111(8). Chancey argued that the

written description highlighted the “duties that would cause the position [of train

operator helper] to appear more dangerous,” but he did not challenge the accuracy

of the duties described. That description tasked Chancey with “all things necessary

for the safe and prompt movement of engines and cars” and required him to be

“[a]lert”; have a “[s]ense of safety and responsibility for himself and others”; be

able to “plan work and act independent of [his] supervisor”; be “[a]ble to give and

relay signals from [the] ground, on [a] ladder and from [the] side of cars”; maintain

a “[h]igh degree of responsibility for the safety of the public and other employees

as well as property”; perform tasks with “[a]gility”; be “[c]apable of boarding and

alighting from moving cars and engines”; be able to “[a]scend and descend vertical

ladders on car and engines in motion,” “to pull pins and disconnect air hoses,” and


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“to operate hand brakes on top of cars”; to “work irregular hours”; and be “[a]ble

to open and close doors on rail cars with and without hand tools.”

      Chancey did not request that Fairfield accommodate his disability, see

Gaston, 167 F.3d at 1363–64, and the evidence submitted by Fairfield established

that Chancey could not perform the essential functions of a train operator helper

with or without a reasonable accommodation. See 42 U.S.C. § 12111(8). Chancey

testified that he had issues with his memory; he was constantly on edge and easily

startled; and his tremors made it difficult to hold silverware. Chancey admitted in

his application for disability benefits and to a physician who examined him for

those benefits that he suffered from “tremor[s] [in his] upper extremities,”

insomnia, headaches, irritability, anger, anxiety, hypervigilance, poor attention and

concentration, and an exaggerated startle response. See Talavera v. Sch. Bd. of

Palm Beach Cnty., 129 F.3d 1214, 1220 (11th Cir. 1997) (“[A]n ADA plaintiff is

estopped from denying the truth of any statements made in her disability

application.”). Both that physician and Dr. Szabo reported that Chancey acted very

anxious and had poor eye contact, and Dr. Szabo also reported that Chancey was

tremulous, stuttered, and appeared depressed, and he was unable to follow

instructions, to finish coordination tests, or to complete a finger-to-nose test. And

Dr. Szabo testified that Chancey could not return to his position because his

tremors, his lack of coordination, and the combined effects of his four medications


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interfered with his abilities to concentrate, to focus, to make hurried decisions, and

to react quickly as required when working around moving trains and equipment.

Although Dr. Andrea Thomas, a physician at Grayson, opined in a letter that

Chancey’s medication would not thwart him from performing the functions as a

train operator helper, Dr. Thomas later testified that she did not know the scope of

Chancey’s duties and she had not treated, examined, or talked to Chancey. No

genuine dispute exists as to whether Chancey can perform the tasks required of a

train operator helper.

      The district court did not err by entering summary judgment against

Chancey’s complaint about discrimination under the Act. Chancey could not

establish a prima facie case that he was discriminated against based on his

disability. See Hilburn, 181 F.3d at 1226. The undisputed evidence established

that Chancey is not a qualified individual who can fulfill the essential functions of

a train operator helper. See 42 U.S.C. § 12111(8).

      We AFFIRM the summary judgment in favor of Fairfield and US Steel.




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