                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS
                     FOR THE ELEVENTH CIRCUIT
                    _____________________________   FILED
                                                 U.S. COURT OF APPEALS
                             No. 04-16695          ELEVENTH CIRCUIT
                                                      MARCH 10, 2006
                    _____________________________
                                                    THOMAS K. KAHN
                                                         CLERK
                     D. C. Docket No. 03-00003-CV-4

REGINA BISHOP,


                                                Plaintiff-Appellant,
     versus

GEORGIA DEPARTMENT OF FAMILY AND
CHILDREN SERVICES,
Floyd County Office,

                                                Defendant-Appellee.

              _________________________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
              _________________________________________

                             (March 10, 2006)


Before EDMONDSON, Chief Judge, BLACK and FAY, Circuit Judges.
PER CURIAM:



       On 10 October 2001, Plaintiff Regina Bishop was terminated from her job

as an economic support supervisor for the Floyd County, Georgia Department of

Family and Children Services (DFCS).1 Plaintiff claims she was terminated

because of her bipolar disorder in violation of the Americans with Disabilities Act

of 1990 (ADA) and the Rehabilitation Act of 1973. The district court concluded

that Plaintiff failed to present a prima facie case of discrimination and granted

summary judgment to the defendant, the Georgia Department of Human

Resources. We now affirm the district court in part, reverse in part, and remand

for further proceedings.



                                     I. BACKGROUND



       Plaintiff started work for the Defendant Georgia Department of Human

Resources (DHR) in 1979. In 1985, Plaintiff became an economic support




  1
   Although Plaintiff performed her job functions for Floyd County DFCS, her actual employer --
and the defendant in this case -- is the Georgia Department of Human Resources.

                                              2
supervisor for Floyd County DFCS, a division of DHR. Her job responsibilities

required her to train new staff in DFCS programs and computer systems.

       In 1987, Plaintiff was diagnosed with rapid-cycling bipolar disorder, which

causes periodic manic and depressive episodes which can include increased

irritability, easy distraction, and verbal hostility. During her manic episodes,

Plaintiff admits that she often makes inappropriate statements, has inappropriate

interactions with other people, and exercises poor judgment. Plaintiff takes

medication to control her bipolar disorder and participates in periodic counseling

sessions.

       In February and March 2001, Plaintiff received two letters of concern

detailing inappropriate acts she had taken during her employment.2 Plaintiff

attributed her acts to her bipolar disorder, and she requested closer communication

with and more direct observation from her supervisor, Diane Ray, as a means of

curbing her inappropriate behavior.

       In May 2001, plaintiff violated DFCS policy when she separately assisted

her son and her boyfriend to obtain medical benefits and food stamps. An

unwritten DFCS policy requires an employee to alert a supervisor when a family



   2
     In the first incident, Plaintiff allegedly called a coworker a “bitch.” In the second, Plaintiff
allegedly used her status with Floyd County DFCS to assist a client in another DFCS office.

                                                 3
member was receiving benefits through the employee’s office. The supervisor is

then supposed to handle the claim. Plaintiff did not alert Ray that Plaintiff’s son

and boyfriend had applied for benefits.

         The Floyd County DFCS director, Kathy Floyd, initiated an investigation

into Plaintiff’s activities. Although Plaintiff claimed she was unaware of this

policy, some evidence indicates that Plaintiff attended a meeting during which the

policy was discussed. The investigation concluded that Plaintiff violated DFCS

policy.3 Plaintiff was fired on 15 October 2001 based on her work history and the

results of the investigation. Before she was terminated, Plaintiff applied for

disability retirement benefits beginning in November 2001.

         Plaintiff filed suit against DHR after receiving a Notice of Right to Sue

from the Equal Employment Opportunity Commission. In her suit, Plaintiff

alleged that her policy violations were directly caused by her bipolar disorder and




  3
      The Office of Investigative Services report concluded that:

         The evidence supports the conclusion of negligence, inefficiency and misconduct by
         Regina Bishop. Ms. Bishop was inappropriately involved in the application process
         of her son and live-in boyfriend. Her involvement compromised program integrity
         and internal controls. She violated office procedures/practices, food stamp/county
         clinic policy and DHR standards of conduct policy. She failed to report the cases to
         her supervisor and recruited subordinate employees/friends to assist her in processing
         the cases.

                                                   4
that DHR violated the ADA and the Rehabilitation Act when it terminated her

without accommodating her or taking her condition into account.

      The district court dismissed Plaintiff’s claims under the ADA because the

complaint failed to name a state official as a defendant. The court granted

summary judgment for DHR on Plaintiff’s remaining claims because, the court

concluded, “exercising good judgment” was an essential job function that Plaintiff

could not perform with or without reasonable accommodation.



                            II. STANDARD OF REVIEW



      We review de novo the district court’s grant of summary judgment. Burton

v. Tampa Hous. Auth., 271 F.3d 1274, 1276-77 (11th Cir. 2001). Summary

judgment is appropriate only if there is no genuine issue of material fact and DHR,

as the moving party, is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;

Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553 (1986). We view

the evidence and all factual inferences therefrom in the light most favorable to

Plaintiff, as the non-moving party, and all reasonable doubts about the facts are

resolved in Plaintiff’s favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187

(11th Cir. 1999).

                                         5
                                      III. DISCUSSION



       Plaintiff raises claims under the Rehabilitation Act (the “Act”) and the

ADA. For reasons discussed in more detail below, Plaintiff’s ADA claims are

barred by her failure to name a state official as a defendant. Plaintiff’s

Rehabilitation Act claims, however, are procedurally sound. Like the ADA, the

Act “prohibits federal agencies from discriminating in employment against

otherwise qualified individuals with a disability.” Sutton v. Lader, 185 F.3d 1203,

1207 (11th Cir. 1999).4 To establish a prima facie case of discrimination under the

Act, Plaintiff must show that she is a qualified person with a disability who was

subjected to unlawful discrimination as the result of her disability. Id.

       To be a “qualified” person Plaintiff must be able to perform the essential

functions of her job, with or without reasonable accommodation. Earl v. Mervyns,

Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Plaintiff contends that her level of

judgment did not impede her ability to perform the essential functions of her job.

Plaintiff further asserts that she established a prima facie case of discrimination

because she could have performed the essential functions of her job with



  4
   The standard for determining liability under the Act is the same as under the ADA. Sutton, 185
F.3d at 1207 n.5.

                                               6
reasonable accommodations, and DHR refused to provide the accommodations she

requested.

      We conclude that issues of material fact exist to block DHR’s motion for

summary judgment.



A. Plaintiff’s essential job functions



      The district court concluded that “exercising good judgment” was an

essential function of Plaintiff’s job. Essential functions are the “fundamental job

duties of a position that an individual with a disability is actually required to

perform.” Earl, 207 F.3d at 1365 (citing 29 C.F.R. § 1630.2(n)(2)(i)). The factors

to consider when deciding whether a particular task is an essential function

include these things: (1) the amount of time spent performing the function; (2) the

work experience of past and current holders of the position; and (3) job

requirements as described in a written job description. 42 U.S.C. § 12111(8); 29

C.F.R. § 1630.2(n)(3).

      Plaintiff’s job duties required her to spend 95 percent of her time training

new employees. But DHR has furnished no written job description from which we




                                           7
can glean Plaintiff’s essential job functions. Nor has DHR provided evidence on

the essential functions of past or current holders of Plaintiff’s position.

      Exercising some degree of good judgment is arguably a function of every

occupation. See, e.g., Williams v. Motorola, Inc., 303 F.3d 1284, 1291 (11th Cir.

2002) (deeming as essential functions similarly broad qualities such as “the ability

to handle reasonably necessary stress and work reasonably well with others”). But

the required degree of acuity and consistency of judgment varies between different

jobs. The question at issue here is the degree of acuity and consistency of

judgment necessary to perform Plaintiff’s job. See Lucas v. W.W. Grainger, Inc.,

257 F.3d 1249, 1258 (11th Cir. 2001) (concluding that essential job functions may

only be determined through factual inquiry conducted on case-by-case basis).

      The evidence includes statements from Plaintiff’s two supervisors who

testified that Plaintiff was a capable worker who, in reality, exercised the level of

good judgment necessary to perform her job adequately for 23 years in DHR’s

employ. Ray, her immediate supervisor, stated that Plaintiff always met or

exceeded expectations in her regular performance reviews and that Ray would

have readily accepted Plaintiff back as an employee even with her disability. And,

after the two incidents in early 2001 when Plaintiff failed to exercise good

judgment, DHR merely issued letters of concern detailing her behavior.

                                           8
      Construing this evidence in the light most favorable to Plaintiff, a

reasonable fact finder might infer from this record that DHR did not really

consider “exercising good judgment” to be an essential function of Plaintiff’s job.

At the very least, a reasonable fact finder might find that Plaintiff exhibited the

degree of acuity and consistency of judgment necessary to be a qualified person

for the specific job in this case. We accordingly conclude that sufficient questions

of fact exist such that summary judgment should not be granted.



B. Reasonable accommodation



      The district court determined that no reasonable accommodation would

allow Plaintiff to exercise good judgment in her job. Plaintiff’s requested

accommodation merits some discussion.

      Plaintiff requested that Ray, her supervisor, meet more frequently with

Plaintiff so that Ray could bring inappropriate acts to Plaintiff’s attention.

Plaintiff contends that more frequent meetings with Ray would have provided a

reasonable means of accommodating her bipolar disorder. To support her

contention, Plaintiff presented an affidavit from her psychologist stating that

closer supervision could have minimized the incidents of Plaintiff’s poor

                                           9
judgment.5 Some evidence indicates that prior, similar meetings with Plaintiff’s

former director had minimized the effects of Plaintiff’s mood swings.

       An employer must provide reasonable accommodations for employees with

known disabilities unless the accommodations would cause undue hardship to the

employer. Earl, 207 F.3d at 1365. Accommodations are reasonable, and thus

required under the Act, only if they allow the employee to perform her essential

job functions. Id. Plaintiff holds the burden of identifying a reasonable

accommodation that would allow her to perform the essential functions of her job.

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.

1997).

       Taking the evidence in the light most favorable to Plaintiff, we cannot

conclude as a matter of law that Plaintiff’s violations of DHR policy were

sufficient to render her unable to perform the essential functions of her job with

some reasonable accommodation.




   5
     Plaintiff’s psychologist, Dr. Robert Connell, presented the value of more frequent meetings
between Plaintiff and her supervisor as “precisely the type of accommodation that [Plaintiff] needed
at the time.” Dr. Connell further testified that “[b]ecause mania frequently interferes with your
perception of yourself, the only way you can control it is to self adjust based on the cues provided
to you by those around you.” With this accommodation, Dr. Connell testified, Plaintiff would have
been able to continue working until her retirement date.

                                                10
C. Plaintiff’s ADA claims



       Plaintiff sought equitable adjustment of her retirement date so that she could

receive retirement benefits. She raised this claim under the ADA. The district

court dismissed the claim because Plaintiff failed to name in her complaint a state

official acting in an official capacity. Plaintiff now asks us to remand her ADA

claim to the district court so that she may amend her complaint.

       Plaintiff had ample opportunity to amend her complaint to include a state

official as a defendant.6 She did not seek such a corrective amendment in district

court. We follow the rule that “[a] district court is not required to grant a plaintiff

leave to amend [her] complaint sua sponte when the plaintiff, who is represented

by counsel, never filed a motion to amend nor requested leave to amend before the

district court.” Wagner v. Daewoo Heavy Indus. America Corp., 314 F.3d 541,

542 (11th Cir. 2002)(en banc).

       Plaintiff raises this argument for the first time on appeal. We have

repeatedly held that “an issue not raised in the district court and raised for the first

time in an appeal will not be considered by this court.” Access Now, Inc. v.



  6
   Plaintiff once amended her complaint to change the defendant from Georgia DFCS to the current
defendant, Georgia DHR. Plaintiff never named a state official as a defendant.

                                              11
Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). We, therefore,

affirm the district court’s dismissal of Plaintiff’s ADA claim.



                                 IV. CONCLUSION



      The district court properly dismissed Plaintiff’s claim under the ADA. But

DHR has not defined “exercising good judgment” sufficiently for the pertinent job

or shown that Plaintiff could not meet the degree and consistency of judgment

required to perform her essential job functions with reasonable accommodation.

Summary judgment, therefore, is unwarranted on Plaintiff’s claims under the

Rehabilitation Act, and we remand for further proceedings consistent with this

opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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