                Case: 12-14776        Date Filed: 12/18/2013       Page: 1 of 7


                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                            FOR THE ELEVENTH CIRCUIT
                                       _____________

                                        No. 12-14776
                                       _____________


                       D.C. Docket No. 2:10-cv-00932-MEF-WC


JOSEPH HOWARD,
                                                            Plaintiff – Appellant,
versus

STERIS CORPORATION,
                                                            Defendant – Appellee.


                               ________________________

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

                                    (December 18, 2013)


Before HULL and HILL, Circuit Judges, and PANNELL, ∗ District Judge.




∗
 Honorable Charles A. Pannell, Jr., United States District Judge for the Northern District of
Georgia, sitting by designation.
                Case: 12-14776      Date Filed: 12/18/2013      Page: 2 of 7


HILL, Circuit Judge:

       Appellant Joseph Howard (Howard) appeals from the district court=s order

granting summary judgment to Howard=s employer-defendant, STERIS

Corporation (STERIS), in his employment discrimination suit, brought under the

Age Discrimination in Employment Act (ADEA), 29 U.S.C. '' 621-623; the

Americans with Disabilities Act (ADA) of 1990, 42 U.S.C. ' 12112(a); and

supplemental state law, 28 U.S.C. ' 1367. Having reviewed the record and

considered oral argument of the parties, we affirm the district court in all respects

related to this appeal.

                                             I.

       Howard, a fifty-eight-year-old male, was terminated by STERIS after

twenty-three years of service, for sleeping on the job, in violation of established

company policy. 1 The record reflects that Howard=s medical history was a virtual

lifetime of daytime sleepiness and difficulty sleeping at night. It is also clear from

the record that Howard had nodded off at work Athousands of times@ over the years,




       1
          STERIS manufactures surgical tables, cabinets, and lights in Montgomery, Alabama.
Howard began as a grinder, and later became an assembler. Malcolm McBride was director of
facility operations. Ken Thomas was senior human resources manager. Jimmy Williams was
Howard=s direct supervisor. STERIS admits that Howard maintained an excellent work
performance record throughout his employment.

                                              2
                Case: 12-14776        Date Filed: 12/18/2013      Page: 3 of 7


and that Avirtually every one of Howard=s 250 co-workers recognized that he had

some kind of sleep disorder.@ 2

       The evidence was that Howard never told any of his supervisors that he

thought he had narcolepsy, or any other form of sleep disorder, as he found his

condition embarrassing. More critically, Howard never sought treatment for, or

was diagnosed by, any medical physician as having a sleep disorder. 3

       On June 11, 2009, supervisor Randy Bridges caught Howard sleeping at his

workstation. Bridges contacted Williams, Howard=s direct supervisor. He too

observed Howard asleep at his desk.4 The two confirmed their observations to

Thomas, human resources manager. Howard was immediately suspended. The

next day he was terminated.



       2
        The record is replete with multiple examples of Howard falling asleep at plant-wide
meetings, sometimes in the presence of high-ranking, out-of-state corporate officials. One time,
Howard almost fell out of his chair.
       3
         In high school, in 1973, a doctor gave Howard caffeine pills and told him that he might
have narcolepsy. In 2009, Howard went to a doctor about his sleeping problems, but the
physician determined Howard to have heart problems and Graves’ disease which took
precedence, and postponed any official diagnosis and treatment of a sleep disorder. Howard did
inform his supervisors that he had Graves= disease. The medications for that thyroid disorder are
not sleep-inducing.
       4
         The record indicates that the STERIS employee handbook rule was that anyone caught
sleeping on the job would be fired after the first offense, but only if two supervisors
independently confirmed the violation. The company followed this policy consistently. In 2002,
STERIS fired three employees, ages 39, 48, and 49, for sleeping on the job.

                                                3
                   Case: 12-14776    Date Filed: 12/18/2013      Page: 4 of 7


       Two weeks later, Howard requested a meeting with plant manager McBride,

to appeal the termination decision. McBride scheduled a meeting; Howard chose

not to attend. 5

       Thereafter Howard filed suit in district court for disability and age

discrimination. The district court granted summary judgment to STERIS. This

appeal follows.

                                              II.

       We review the district court=s grant of summary judgment to STERIS de

novo and apply the same legal standards as the district court. Scantland v. Jeffry

Knight, Inc., 721 F.3d 1308, 1310 (11th Cir. 2013). Federal Rule of Civil

Procedure 56(a) provides that A[t]he court shall grant summary judgment 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). AThe court

must view all evidence most favorably toward the nonmoving party, and all




       5
         After Howard was terminated, STERIS officials combined his former position with
several other positions and staffed it by a rotating team of eight employees, one of whom may
have been older than Howard, but one of whom was likely younger than Howard.
        STERIS, as part of a cost-saving, reduction-in-force program, had offered a voluntary
AEarly Retirement Plan@ in May 2009 to senior employees. Though eligible, Howard did not opt
into the program. Of twenty employees recruited, only seventeen volunteered to take early
retirement.
                                               4
              Case: 12-14776     Date Filed: 12/18/2013    Page: 5 of 7


justifiable inferences are to be drawn in the nonmoving party=s favor.@ Hoffman v.

Allied Corp., 912 F.2d 1379, 1383 (11th Cir. 1990).

                                         III.

      The ADA prohibits discrimination based on a disability. 42 U.S.C. '

12112(a). Under the statute, employers must provide reasonable accommodations

for known disabilities unless doing so would result in undue hardship. Id. '

12112(b)(5)(A). Howard claims that STERIS violated the ADA when it fired him

for sleeping on the job; by not offering him a reasonable accommodation; and, by

retaliating against him for complaining about his treatment.

      Under the controlling law in this circuit, A[t]he burden-shifting analysis of

Title VII employment discrimination claims is applicable to ADA claims.@ Earl v.

Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). To establish a prima facie

case of discrimination under the ADA, Howard must show: (1) he is disabled; (2)

he is a qualified individual; and, (3) he was subjected to unlawful discrimination

because of his disability. Id. A person has a disability if he Ahas a physical or

mental impairment that substantially limits one or more major life activities.@ 42

U.S.C. ' 12102(1)(A).




                                          5
              Case: 12-14776     Date Filed: 12/18/2013    Page: 6 of 7


      The district court found that Howard had met his initial burden of showing

he has a disability. The evidence was that a pulmonologist and sleep specialist, Dr.

Franco, diagnosed him with obstructive sleep apnea after Howard was terminated.

His endocrinologist, Dr. Casals, testified that Graves= disease can cause trouble

sleeping too. The district court determined that a reasonable jury had enough

evidence to conclude that Howard=s physical impairments substantially limited his

ability to sleep, a major life activity under the ADA. 42 U.S.C. ' 12102(2)(A).

      Liability under the ADA requires the employer to have discriminated

because of the employee=s disability as the employer had actual knowledge of the

alleged disability at the time it took adverse employment action. See Cordoba v.

Dillard=s, Inc., 419 F.3d 1169, 1185 (11th Cir. 2005). Howard argues that the

decision makers had constructive notice of his sleep disorder. This argument fails

as A’[d]iscrimination is about actual knowledge, and real intent, not constructive

knowledge and assumed intent.’” Id. at 1183 (emphasis added).

      The district court found that, as Howard has failed to prove that STERIS had

actual knowledge of his alleged sleep disorder disability, together with the fact that

Howard had received no medical diagnosis (before he was terminated) that he

suffered from a sleep disorder of any kind, no reasonable jury could infer that

STERIS discriminated against Howard because of a disability. We agree.
                  Case: 12-14776   Date Filed: 12/18/2013    Page: 7 of 7


       Howard has failed to make a prima facie case under the ADA. We affirm

the district court on this issue for the reasons stated by the district court.

                                           IV.

       The ADEA makes it illegal for an employer Ato discharge any individual or

otherwise discriminate against any individual@ because of his age. 29 U.S.C. '

623(a)(1). These are Aindividuals who are at least 40 years of age.@ Id. ' 631(a).

       On appeal, Howard argues that the district court erred in denying his ADEA

claim based on its conclusion that no reasonable jury could find that he was

replaced with substantially younger employees. See note 5 supra. He claims that

his sleeping on the job termination was mere pretext for the company=s true motive

to cut costs by firing older, more costly employees. Howard also points to the

early retirement option as proof of age discrimination. Id.

       The district court found these arguments to be meritless and concluded that

Howard had failed to establish a prima facie case or a pretext under the ADEA.

We agree. We affirm the district court on this issue for the reasons stated by the

district court.

                                           V.

       Based on the foregoing, we affirm the judgment of the district court.

       AFFIRMED.

                                            7
