                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE ELEVENTH CIRCUIT                 U.S. COURT OF APPEALS
                             ________________________                  ELEVENTH CIRCUIT
                                                                           MAR 10 2000
                                                                        THOMAS K. KAHN
                               Nos. 99-4076 & 99-10524                       CLERK
                              ________________________

                       D. C. Docket No. 97-8151-CIV-HURLEY

MARVIN DAVIS,
                                                                         Plaintiff-Appellant,

                                            versus

FLORIDA POWER & LIGHT CO.,
a Florida Corporation,
                                                                        Defendant-Appellee.

                              ________________________

                     Appeals from the United States District Court
                      for the Southern District District of Florida
                            _________________________
                                  (March 10, 2000)


Before BLACK and HULL, Circuit Judges, and GOODWIN*, Senior Circuit Judge.

HULL, Circuit Judge:




       *
        Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by
designation.
      Plaintiff Marvin Davis (“Davis”) appeals the entry of judgment for Defendant

Florida Power & Light Company (“FPL”) on his employment discrimination claims

under the American with Disabilities Act of 1990 (“ADA”). After review, we affirm

the district court’s determination that Davis failed to establish a prima facie case of

disability discrimination for two reasons. First, FPL’s mandatory overtime work was

an essential function of Davis’s job of reconnecting electrical power service for FPL’s

customers. Davis was not a qualified individual protected by the ADA because he

could not work the overtime FPL required.               Second, Davis’s requested

accommodations of no or selective overtime work contravened the seniority

provisions of his union’s collective bargaining agreement and were unreasonable

accommodations as a matter of law.

                          I. FACTUAL BACKGROUND

      In 1985, Davis began work with FPL, a utility company providing electricity

to businesses and residences throughout Florida. Overtime was required at FPL due

to the nature of its electric utility business, including the need to maintain a steady

flow of power, to remedy power outages, and to reconnect power quickly to its




                                          2
customers. In completing his job application, Davis indicated his agreement to work

overtime as a condition of employment.1

       A collective bargaining agreement with the International Brotherhood of

Electrical Workers (“IBEW”) governed FPL’s relationship with many employees,

including Davis. Because most FPL jobs required overtime, that agreement dictated

how FPL assigned overtime work. The agreement provided that FPL must offer

voluntary overtime on a most-senior to least-senior basis. If more overtime is needed,

mandatory overtime must be imposed on the most junior employees first. The

agreement also allowed FPL to require employees to work “holdover overtime,”

which was assigned to employees already on a job and irrespective of seniority.

       In 1990, Davis sustained a back injury on the job while working as a lineman.

Davis was placed on “light duty” and later diagnosed as having a herniated disc. After

treatment, Davis returned to “full duty.” When his lineman duties aggravated his back

condition, Davis’s doctor suggested that he transfer to a less strenuous position.

       In 1991, Davis bid for and obtained a “Street Light Maintenance” position at

FPL. After a short time in this position, Davis bid for and obtained another “lineman”



       1
        Specifically, Davis answered “yes” to this question: “FPL must provide 24-hour-a-day
service to its customers. Therefore, many of our jobs require employees to sometimes work
overtime. . . . Are you agreeable, as a condition of employment, to work whatever schedule is
necessary to help us meet . . . our obligations to our customers?”

                                             3
position.2 When that job again aggravated Davis’s back condition, FPL placed Davis

on “light duty.”       A disagreement arose between Davis and FPL leading to a

suspension for a year.

       In late 1993, Davis returned to “light-duty” work and in early 1994 bid for a

Connect and Disconnect (“C&D”) position. The C&D position involves connecting

and disconnecting electric service to FPL’s customers by installing, removing, and

reading electric meters. The C&D position carries out FPL’s connect and reconnect

policy, which requires that customer orders be processed and executed the same day

or within twenty-four hours. Davis met the requirements listed on FPL’s form entitled

“Essential Job Functions - Connect & Disconnect Man.”3 The form and FPL’s written

job description for the C&D position do not address working hours or overtime work,

but the collective bargaining agreement does. That agreement lists the work schedule

of a C&D employee as “five (5) days of eight (8) consecutive hours per day,” and

expressly grants FPL “the right to require employees to work overtime.” In 1996, the

84 C&D employees worked 18,175 hours of overtime, averaging 216 overtime hours


       2
        Davis made this bid due to what Davis alleges were intolerable working conditions.
According to Davis, his various supervisors subjected him to constant harassment and intimidation
because of his disability. Because Davis does not challenge the district court’s finding that pre-
March 1996 conduct was time-barred, we omit the facts surrounding those allegations.
       3
        The form listed nine different job requirements, including frequent walks on varied surfaces
while wearing a 10-pound tool belt, performing duties in direct sunlight and after dark, and
possessing sufficient stamina to work in inclement weather.

                                                 4
each. C&D employees work the third highest average number of overtime hours of

some forty different FPL jobs, although almost all jobs require some overtime. The

relatively high C&D overtime figure was in part due to FPL’s aggressive same-day

connect and reconnect policy. The volume and time constraints of C&D work

occasionally necessitated simultaneous overtime for all C&D employees.

      In 1996, Davis’s doctor suggested that he work no more than eight hours a day

because of his back condition. Shortly thereafter Davis was suspended. According

to Davis, he was suspended because he could not work overtime. FPL contends that

Davis was placed on worker’s compensation leave because his medication caused

drowsiness, interfering with his ability to drive his FPL truck, and because there were

no “light-duty” positions available.

      Over the next eight months a series of meetings, letters, and negotiations

followed. Davis insisted that FPL accommodate his disability by guaranteeing him

no overtime or allowing him to decide each day whether to work overtime depending

on his personal assessment of his back condition at shift end. FPL refused this

request, but offered Davis two options. First, Davis could return to work in a full-duty

C&D position with a guarantee of no overtime for sixty days. The IBEW agreed to

this sixty-day concession. Second, FPL offered to allow Davis to transfer to another

IBEW position or transfer to a non-IBEW position. Pursuant to the collective


                                           5
bargaining agreement, FPL provided Davis with a list of jobs and a seniority roster for

him to determine what jobs were open to someone with his seniority. After Davis’s

contractual right to transfer expired, FPL extended the time period for Davis to request

a transfer and provided him with information regarding average amounts of overtime

per position.

      Davis rejected FPL’s offers, and FPL refused Davis’s requested

accommodations.      Davis refused to return to C&D work without one of his

accommodations and was terminated in March 1997.

                          II. PROCEDURAL HISTORY

      Davis then filed this lawsuit alleging (a) disability discrimination, in violation

of the ADA and the Florida Civil Rights Act of 1992, and (b) discriminatory

retaliation, in violation of the ADA, Florida’s Workers Compensation Law, and

Florida’s Whistle Blower Act. In an order dated January 7, 1999, the district court

granted summary judgment to FPL on all federal and state claims. Davis subsequently

filed a motion for relief from judgment under Rule 60(b), addressing only his

requested accommodations under the ADA. Fed. R. Civ. P. 60(b). In an order dated

March 24, 1999, the district court denied this motion. Davis timely appealed both




                                           6
orders.4 On appeal, however, Davis addresses only his ADA claims and not his state

law claims. Furthermore, the issues Davis raises on appeal about his retaliation claims

under the ADA lack merit.5 Thus, we address only Davis’s disability discrimination

claims under the ADA.

                                       III. DISCUSSION

       The ADA provides that no covered employer shall discriminate against “a

qualified individual with a disability because of the disability of such individual”

in any of the “terms, conditions, [or] privileges of employment.” 42 U.S.C.

§ 12112(a) (1994). “Indeed, the ADA imposes upon employers the duty to provide

reasonable accommodations for known disabilities unless doing so would result in

undue hardship to the employer.” Morisky v. Broward County, 80 F.3d 445, 447

(11th Cir. 1996) (citing 42 U.S.C. 12112(b)(5)(A)). The ADA places the burden

on the employee to establish a prima facie case of disability discrimination. See

Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997). To

       4
         Davis’s appeal of the denial of his Rule 60(b) Motion in Appeal No. 99-10524 was
consolidated with Davis’s appeal from the grant of summary judgment in Appeal No. 99-4076. We
review the district court’s grant of summary judgment de novo, applying the same legal standards
as the district court. See Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir.
1999). Summary judgment is appropriate where there is no genuine issue of material fact. Fed. R.
Civ. P. 56(c). We review the denial of Davis’s Rule 60(b) Motion for abuse of discretion. See
Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115 (11th Cir. 1993).
       5
        Davis primarily alleges that the district court erred in finding that Davis failed to establish
a prima facie case of retaliation under the ADA. Because we find no merit to this contention, we
affirm without further discussion. See 11th Cir. R. 36-1.

                                                  7
establish a prima facie case of disability discrimination, Davis must prove that (1)

he has a disability; (2) he is a qualified individual; and (3) he was subjected to

unlawful discrimination because of his disability. See Morisky, 80 F.3d at 447.

As outlined below, we find that the district court correctly held that Davis failed to

show that he was a qualified individual with a disability.6

A.     Qualified Individual

       A “qualified individual with a disability” is an “individual with a disability

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). Davis must show either that he can perform the essential

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

perform the essential functions of his job with a reasonable accommodation . See

Holbrook, 112 F.3d at 1526. Thus, if Davis is unable to perform an essential

function of his C&D job, even with an accommodation, he is, by definition, not a

“qualified individual” and, therefore, not covered under the ADA. See Cramer v.

Florida, 117 F.3d 1258, 1264 (11th Cir. 1997). In other words, the ADA does not

require FPL to eliminate an essential function of Davis’s job. Therefore, the first


       6
        FPL argues that Davis fails to establish a “disability” because his back condition does not
substantially limit his major life activities. Since we find that Davis is not a qualified individual,
we do not reach whether Davis has a disability within the meaning of the ADA.

                                                  8
issue is whether mandatory overtime work is an essential function of the C&D

position.

      Whether a function is essential is evaluated on a case-by-case basis by

examining a number of factors. The ADA provides that consideration shall be

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

employer’s written description for that job. See 42 U.S.C. § 12111(8). The ADA

regulations provide that other factors to consider are: (1) the amount of time spent

on the job performing the function, (2) the consequences of not requiring the

incumbent to perform the function, (3) the terms of the collective bargaining

agreement, (4) the work experience of past incumbents in the job, and (5) the

current work experience of incumbents in similar jobs. See 29 C.F.R.

§ 1630.2(n)(3) (1999).

      After considering these factors, the district court correctly held that

mandatory overtime work is an essential function of Davis’s C&D position. First,

FPL deems mandatory overtime to be an essential function of that position due to

the unique nature of the electric industry and FPL’s same-day reconnect policy.

Second, FPL’s application indicated that working overtime was “a condition of

employment.” Davis also admitted that overtime was represented to him as a

condition of employment. Third, FPL’s aggressive connect and reconnect policy


                                          9
creates fluctuating production requirements and heightens FPL’s reliance on its

ability to require overtime from C&D employees. Fourth, FPL’s evidence

demonstrated that each C&D position undisputedly required a substantial amount

of overtime work. For example, each C&D employee worked an average of 216

overtime hours in 1996. Fifth and significantly, FPL’s bargained-for-agreement

with the IBEW grants FPL the right to require involuntary overtime and outlines

the specific methods by which it may do so. All of these factors demonstrate that

mandatory overtime is an essential function of the C&D position.

      We recognize that FPL’s job description and form for the C&D position do

not address working hours or overtime. But we disagree with Davis’s argument

that this means that his working hours and overtime cannot be deemed essential

functions as a matter of law. Davis’s argument ignores the undisputed facts that

the collective bargaining agreement expressly sets forth both the working hours

and the overtime requirement and that nothing in FPL’s job description and form

addresses those matters, much less contradicts the collective bargaining agreement.

Moreover, the job application also makes clear that overtime is a condition of

employment in a C&D position.




                                        10
      We also reject the EEOC’s argument that “working overtime” can never be

an “essential function” of a job.7 The EEOC narrowly equates “function” with task

and argues that overtime is not a task to be performed. However, in FPL’s electric

utility business, mandatory overtime work is the means by which FPL implements

its same-day connect and reconnect policy. FPL’s connect and reconnect policy

generates for a C&D employee certain meters that must be installed or reconnected

that day. While certain equipment may be used to install and reconnect the electric

service, overtime is the tool that gets that work done the same day and is thus an

integral part of the C&D position. In effect, overtime work in a C&D position at

this electric utility company is akin to job presence, which has been held to be an

essential function of a job. See Jovanovic v. In-Sink-Erator Div. of Emerson Elec.

Co., 201 F.3d 894, 900 (7th Cir. 2000) (“[O]ur review of the entire record in this

case supports the district court’s finding that regular attendance is an essential

function of the tool and die maker position . . . .”); Tyndall v. National Educ. Ctrs.

Inc., 31 F.3d 209, 213 (4th Cir. 1994) (“An employee who cannot meet the

attendance requirements of [a university teacher] cannot be considered a ‘qualified’

individual protected by the ADA.”); Jackson v. Veterans Admin., 22 F.3d 277



      7
        The Equal Employment Opportunity Commission (“EEOC”) filed an amicus brief on
Davis’s behalf.

                                          11
(11th Cir.) (holding under Rehabilitation Act that a housekeeping aid had failed to

prove that he was “an otherwise qualified individual because he ha[d] failed to

satisfy the presence requirement of his job”), cert. dismissed 513 U.S. 1052 (1994);

see also Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1231 (11th Cir.

1999) (citing with approval Tyndall’s discussion of job presence as an essential

function under the ADA and concluding plaintiff could not prove associational

discrimination because she was not a qualified individual).8

        For all of these reasons, we conclude that the district court correctly held

that mandatory overtime was an essential function of Davis’s C&D position.

B.      Unreasonable Accommodation

        We also conclude that the district court correctly found that Davis’s

requested accommodations were unreasonable as a matter of law. The ADA does

not require accommodations, such as those Davis requested, that contravene the

seniority rights of other employees under a collective bargaining agreement. In so


        8
         In an analogous situation, the First Circuit dismissed the plaintiff’s ADA claim on other
grounds, but nonetheless addressed the “essential function” notion within the context of the
plaintiff’s claim under the Family Medical Leave Act. See Tardie v. Rehabilitation Hosp., 168 F.3d
538 (1st Cir. 1999). The First Circuit wrote that “[a]t bottom, [plaintiff] offers no evidence that she
or anyone else could perform the job in only forty hours per week,” and thus “the district court did
not err in finding that working more than 40 hours per week was an essential function of the
position.” Id. at 544. The court also noted: “At oral argument, [plaintiff’s] counsel argued that the
time spent at a job is not a ‘function’ of the job; it is a capability. [Plaintiff] claims that only specific
duties can be ‘functions’ of a position. . . . [Plaintiff] cites no authority for this distinction, and we
believe it to be mere semantics.” Id. at 543-44.

                                                     12
concluding, we join eight other circuits which have held that an accommodation

that contravenes the seniority rights of other employees under a collective

bargaining agreement is unreasonable as a matter of law. See Willis v. Pacific

Maritime Ass’n, 162 F.3d 561, 566-68 (9th Cir. 1998); Feliciano v. Rhode Island,

160 F.3d 780, 786-87 (1st Cir. 1998); Aldrich v. Boeing Co., 146 F.3d 1265, 1271

n.5 (10th Cir. 1998); Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 (6th Cir.

1998); Kralik v. Durbin, 130 F.3d 76, 83 (3d Cir. 1997); Foreman v. Babcock &

Wilcox Co., 117 F.3d 800, 810 (5th Cir. 1997); Eckles v. Consolidated Rail Corp.,

94 F.3d 1041 (7th Cir. 1996), cert. denied, 520 U.S. 1146 (1997); Benson v.

Northwest Airlines, Inc., 62 F.3d 1108, 1114 (8th Cir. 1995).9 As the Seventh

Circuit held in Eckles, “the ADA does not require disabled individuals to be

accommodated by sacrificing the collectively bargained, bona fide seniority rights


        9
         For example, in Willis v. Pacific Maritime Ass’n, the Ninth Circuit held that “an employee’s
proposed accommodation under the ADA is unreasonable if it conflicts with a bona fide seniority
system established under a [collective bargaining agreement].” Willis, 162 F.3d at 566; see also
Feliciano, 160 F.3d at 787 (“[T]he failure to automatically reassign [the employee] to that position
– in violation of the rights of the person who received the position under the selection process
outlined in the collective bargaining agreement and departmental policies– does not violate the
ADA.”); Foreman, 117 F.3d at 810 (“[T]he ADA does not require an employer to take action
inconsistent with the contractual rights of other workers under a collective bargaining agreement.”);
Benson, 62 F.3d at 1114 (“The ADA does not require that [the employer] take action inconsistent
with the contractual rights of other workers under a collective bargaining agreement.”). A panel of
the D.C. Circuit reached a contrary holding in Aka v. Washington Hosp. Ctr., 116 F.3d 876 (D.C.
Cir. 1997), but that opinion was vacated when the case was taken en banc. The en banc court’s
opinion did not reach a holding on this issue, but its analysis is consistent with the rule that we adopt
in this case. Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1301-03 & n.25 (D.C. Cir. 1998) (en
banc).

                                                   13
of other employees.” Eckles, 94 F.3d at 1051. We agree with the Seventh Circuit

that “collectively bargained seniority rights have a pre-existing special status in the

law and that Congress to date has shown no intent to alter this status by the duties

created under the ADA.” Id. at 1052.10

       Accordingly, FPL is not required to grant either of Davis’s requested

accommodations because they conflict with the seniority rights of other C&D

employees under their union’s collective bargaining agreement. That agreement

expressly distributes mandatory overtime by seniority, so that those with the least

seniority are compelled to work overtime first. If Davis were given the

accommodation of no overtime or selective overtime depending on Davis’s

personal assessment of his back condition at the end of each shift, then more senior

employees, who otherwise would not have to work overtime, would be required to

do so, and that is not required by the ADA. See Kralik, 130 F.3d at 80-83 (finding

accommodation of no forced overtime violates collective bargaining agreement and



       10
           In his Rule 60(b) Motion, Davis emphasized the EEOC’s “Policy Guidance on Reasonable
Accommodation Under the ADA (“Policy Guidance”), which was issued after the district court
granted summary judgment. That Policy Guidance poses this question: “Can an employer claim
that a reasonable accommodation imposes an undue hardship simply because it violates a Collective
Bargaining Agreement (CBA)?” 12 Empl. Discrim. Rep. (BNA) 317 (Mar. 3, 1999). The Policy
Guidance answers the question “no” and recommends analysis on a case-by-case basis, but notes
that circuit courts have rejected this interpretation of the ADA. Joining these circuits, we find that
this Policy Guidance is inconsistent with the ADA statute as construed by the courts before the
EEOC issued its Policy Guidance.

                                                 14
therefore is not required by the ADA); Eckles, 94 F.3d at 1045, 1051-52 (holding

accommodation of being protected from being “bumped” from position conflicts

with the collectively bargained rights of others who otherwise would have seniority

to bump employee, so that accommodation is not required by the ADA).

Therefore, the district court properly held that Davis’s requested overtime

accommodations were unreasonable as a matter of law because each conflicted

with the applicable collective bargaining agreement.

                               IV. CONCLUSION

      In conclusion, we affirm the district court’s grant of summary judgment in

favor of FPL on all of Davis’s claims and affirm the district court’s denial of

Davis’s Rule 60(b) motion for relief from that judgment.

      AFFIRMED.




                                         15
