            Case: 11-15951   Date Filed: 03/21/2013   Page: 1 of 9

                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 11-15951
                        _______________________

                   D.C. Docket No. 1:10-cv-24616-CMA



JUAN SANTANDREU,

                                                           Plaintiff - Appellant,

                                   versus

MIAMI DADE COUNTY,
Stephen P. Clark Center
Miami-Dade County Attorney
111 NW 1st St
Miami, FL 33128,

                                                          Defendant - Appellee.

                       ________________________

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

                             (March 21, 2013)

Before TJOFLAT, PRYOR, and FAY, Circuit Judges.

PER CURIAM:
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      Plaintiff Juan Santandreu appeals from an order granting partial summary

judgment and a final order of judgment as a matter of law in favor of Miami Dade

County (“County”), in an action under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101. On appeal, Santandreu argues that the district court

erred by dismissing, as a matter of law, his disability and retaliation claims.

Specifically, he argues that the County improperly denied him reasonable

accommodations—including additional leave or a transfer to a vacant position—

and that the County retaliated against him by drafting a proposed Disciplinary

Action Report (“DAR”). At the end of the day, Santandreu’s claims fail because

he is unable to show that he was capable of performing any job duties, even with

accommodations.

                                          I.

      From 2002 to 2007, Santandreu was employed as an engineer in the

County’s Water and Sewer Department. In 2004, Santandreu was diagnosed with

high blood pressure, sleep apnea, depressive disorder, and generalized anxiety

disorder. Based on his conditions, Santandreu was instructed to refrain from

stressful activities. Accordingly, Santandreu requested medical leaves of absence

from work.

      Santandreu was on medical leave from January 2006 until May 2007.

Specifically, in January 2006, Santandreu requested a leave of absence due to


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“illness,” and the County approved the request. Santandreu was then given an

extension until March 25, 2006. Prior to Santandreu’s leave expiring, he requested

an extension to July 25, 2006. When this leave period was about to expire,

Santandreu again requested an extension, this time until January 25, 2007. Finally,

in January 2007, Santandreu submitted another request for leave, which the County

granted until May 4, 2007.

      On May 1, 2007, the County sent Santandreu a letter, advising him that he

was required to return to work on May 5, 2007. Santandreu did not return to work,

but advised the County on May 15, 2007, that his leave of absence should be

extended until July 25, 2007. The County responded that Santandreu had

exhausted his leave and that his employment would be terminated if he did not

return to work or voluntarily resign.

      Subsequently, on June 15, 2007, the County sent Santandreu a proposed

Disciplinary Action Report (“DAR”) for failing to return to work. In lieu of

receiving or opposing the DAR, Santandreu voluntarily resigned via email on June

21, 2007, explaining that his health conditions would not allow him to work.

However, four days later, Santandreu attempted to rescind his resignation. The

County denied his request.

      On August 12, 2007, Santandreu filed a charge with the Equal Employment

Opportunity Commission (“EEOC”) and Florida Commission on Human Rights,


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claiming he was discriminated against based on a “disability.” Santandreu then

filed a complaint in Florida state court, which the County removed to federal court.

In that complaint, Santandreu alleged disability discrimination and retaliation in

violation of the ADA and Florida Civil Rights Act.

      After deposing Santandreu, the County moved for summary judgment on the

grounds that it was not initially aware that Santandreu was disabled and that he

was not discharged but voluntarily resigned. The district court partially granted the

County’s motion for summary judgment, finding, among other things, that

Santandreu voluntarily resigned. However, the court held that there was a question

of fact as to whether: (1) the County was aware Santandreu was disabled; (2) the

County should have provided additional leave as an accommodation; and (3) the

County retaliated against him by issuing a proposed DAR.

      At trial, after Santandreu rested, the County moved for judgment as a matter

of law under Federal Rule of Civil Procedure 50. The district court granted the

County’s motion, finding that Santandreu had failed to produce sufficient evidence

to show that additional leave would have enabled him to return to work within a

reasonably definite period of time. The court further held that Santandreu’s

retaliation claim was outside the scope of the EEOC charge and that he had not

suffered any adverse employment action because he had voluntarily resigned

before the proposed DAR became part of his record. This appeal follows.


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                                          II.

      We review an order granting a motion for summary judgment de novo.

Holloman v. Mail-Well Corp, 443 F.3d 832, 836 (11th Cir. 2006) (citation

omitted). Similarly, we review a district court’s grant of a “motion for judgment as

a matter of law de novo, considering only the evidence that may properly be

considered and the reasonable inferences drawn from it in the light most favorable

to the nonmoving party.” Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th

Cir. 2004) (citation omitted).

                                          III.

      We first address Santandreu’s claim that he was entitled to reasonable

accommodations under the ADA. Specifically, Santandreu argues that the County

should have provided additional leave or a transfer to a vacant position. We

disagree.

      The ADA prohibits discrimination “against a qualified individual on the

basis of disability in regard to” any of the “terms, conditions, and privileges of

employment.” 42 U.S.C. §§ 12112(a). For a plaintiff to demonstrate a prima facie

case of disability discrimination under the Act, he must prove: “(1) he has a

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

discrimination because of his disability.” Davis v. Fla. Power & Light Co., 205

F.3d 1301, 1305 (11th Cir. 2000) (citation omitted).


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       In the present matter, the second element is determinative. “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.’” Id. (quoting 42 U.S.C. §

12111(8)). “The plaintiff bears the burden of identifying an accommodation, and

of demonstrating that the accommodation allows him to perform the job’s essential

functions.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255-56 (11th Cir.

2001) (citations omitted). An employer must provide reasonable accommodations

unless those accommodations would cause an undue hardship on the employer.

Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 (11th Cir. 1998) (citations

omitted). 1

       While a leave of absence may be a reasonable accommodation, the ADA

does not require an employer to provide leave for an indefinite period of time

because an employee is uncertain about the duration of his condition. Duckett v.

Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir. 1997); see also Wood v. Green,

323 F.3d 1309, 1314 (11th Cir. 2003) (ruling a request for an indefinite leave of

absence was unreasonable because “[t]he ADA covers people who can perform the

essential functions of their jobs presently or in the immediate future.”).
1
  Santandreu argues that being regarded as disabled can obligate an employer to provide
accommodations. However, being regarded as having a disability goes to the first element. See
42 U.S.C. § 12102(1) (defining disability as an actual disability, a record of disability, or being
regarded as having such a disability). Because the issue of qualified individual is determinative,
we need not address this argument.
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       In the instant case, Santandreu never demonstrated that he would be able to

return to work within a reasonable time. Santandreu had already taken several

leaves of absence, received a total of fifteen months of leave, and still had no way

of knowing when his doctor would allow him to resume full-time work. Even at

the time of trial, Santandreu and his doctors attested that he still had not received

medical clearance showing that he was able to work. Because Santandreu was

unable to show that he would be able to perform the essential functions of the job

anytime in the reasonably immediate future, his request for additional leave was

not a request for a reasonable accommodation.

       For similar reasons, the County was not required to accommodate

Santandreu by transferring him to another position. Santandreu argues that the

County should have granted his request for a different position, but fails to show

that he was able to perform the essential duties of any position. Since his medical

condition prevented him from performing any work, Santandreu was not qualified

for any alternate position. Thus, the County did not violate the ADA by refusing to

provide such an accommodation. 2 There was, in fact, no accommodation possible

based upon Santandreu’s medical condition.

                                                    IV.
2
  On appeal, Santandreu also challenges the district court’s evidentiary decision not to admit
evidence relating to the County’s practice of allowing longer medical leaves of absence and a list
of vacant positions to which Santandreu could have been transferred. We find this issue moot in
view of the evidence at trial that Santandreu was not able to perform any job. He simply failed
to show that he was a “qualified individual.”
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      We next address Santandreu’s retaliation claim. Santandreu argues that the

County retaliated against him by issuing a proposed DAR.

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

plaintiff] must show (1) that he engaged in statutorily protected activity; (2) that he

suffered an adverse employment action; and (3) a causal link between the protected

activity and the adverse action.” Standard, 161 F.3d at 1328 (citation omitted).

An adverse employment action is any act by the employer that dissuades a

reasonable employee from engaging in the protected activity. Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).

      Here, Santandreu has failed to establish that he suffered an adverse

employment action. After Santandreu had exhausted his leave, the County

informed him that he had the choice of returning to work, resigning, or being

terminated. The County gave Santandreu a proposed DAR and advised him that he

could respond to the proposed DAR before final action. Nevertheless, Santandreu

chose to voluntarily resign and thus did not suffer an adverse employment action.

See Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995)

(“Resignations obtained in cases where an employee is faced with such unpleasant




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alternatives are nevertheless voluntary because the fact remains that plaintiff had a

choice. [Plaintiff] could stand pat and fight.” (quotation omitted)). 3

                                                      V.

       Based on the foregoing discussion, we affirm the district court’s order

granting partial summary judgment and the final order of judgment as a matter of

law in favor of the County.

       AFFIRMED.




3
  Because Santandreu has failed to suffer an adverse employment action, we need not address
the district court’s alternate ruling that Santandreu’s retaliation claim is outside the scope of his
EEOC charge.
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