           Case: 16-13494   Date Filed: 04/05/2018   Page: 1 of 11




                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-13494
                       ________________________

                D.C. Docket No. 8:14-cv-02131-CEH-UAM


LISA CAPORICCI,

                                                      Plaintiff-Appellant,

                                  versus

CHIPOTLE MEXICAN GRILL, INC.,

                                                      Defendant-Appellee.

                       ________________________

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

                              (April 5, 2018)

Before MARCUS, MARTIN, and NEWSOM, Circuit Judges.

PER CURIAM:
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      Lisa Caporicci appeals the district court’s grant of summary judgment in

favor of her former employer, Chipotle Mexican Grill, Inc. She sued Chipotle,

making claims that it discriminated against her based on her disability in violation

of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a), and the

Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10(1)(a). After careful review,

and with the benefit of oral argument, we affirm.

                               I. BACKGROUND

      Caporicci was diagnosed with bipolar disorder when she was eighteen years

old. When not on medication to treat the disorder, she suffers from “[m]ania and

depression.” In July 2012, Caporicci began working for Chipotle as a crew

member at Chipotle’s South Tampa location. The general manager of that location

was Jared Miesel. In April 2013, a few months after Miesel became general

manager, Caporicci told him she had bipolar disorder and “was on medication” for

it. Caporicci testified that his reaction was “[n]eutral” and he said “okay.” She

didn’t tell him what medication she was on, whether there were any side effects, or

whether it could interfere with her work. According to Caporicci, Miesel treated

all employees the same, and he never reprimanded her.

      On May 30, 2013, Caporicci saw Sandra Weeks, the nurse practitioner who

treated her bipolar disorder. Caporicci complained of not being able to eat or sleep

and having frequent panic attacks, including while she was at work. To control


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these symptoms, Nurse Practitioner Weeks modified Caporicci’s treatment, taking

her off of one medication and starting her on a new one named Saphris. Caporicci

started taking Saphris that day. Nurse Practitioner Weeks’s treatment notes from

the May 30th visit recommended that Caporicci take FMLA leave until Monday,

June 3.

       That same day, Nurse Practitioner Weeks faxed a letter to Miesel requesting

FMLA leave for Caporicci. The letter said:

       This is to verify our telephone conversation earlier today regarding
       Ms. Caporicci needing to take FMLA today through Monday, June 6,1
       secondary to severe panic attacks. At this time, her medication is
       being titrated, and I hope that she will not need further medical leave.
       I expect that a brief period of time for respite, along with changes in
       her medication will be sufficient.

According to Caporicci, when Miesel took the fax out of the printer, he didn’t read

it, laughed, crumpled it up, and threw it out. Caporicci then talked to Miesel about

taking some time off because of her condition. Miesel gave her five days off work:

from May 30th to June 3rd.

       During her time off work, Caporicci adjusted to her new medication. She

said it made her feel “a little tired” and “ knock[ed] [her] out at night.” Caporicci

went back to work on June 4th. On June 4th, 5th, and 6th, Caporicci felt “tired,

slow[,] and groggy,” but was able to work without incident.
       1
        The requested date in the letter—“Monday, June 6”—may have been an error, as June
6, 2013 was a Thursday, not a Monday. Nurse Practitioner Weeks’s treatment notes
recommended leave through Monday, June 3.

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         June 7, 2013 was Caporicci’s last day at Chipotle. She clocked in around

11:50 a.m. Around thirty minutes into her shift, she started to feel “dizzy and

disoriented.” She began “having issues serving customers.” Caporicci

acknowledges she was “very slow, messed up orders, and was incoherent.” When

her coworkers asked her what was wrong, she told them her new medication was

“messing with [her] right now.”

         Miesel noticed Caporicci’s condition, took her off the line and sent her

home. Caporicci agreed that taking her off the line and sending her home were

appropriate. Caporicci testified that she “tried to explain to [Miesel] what was

going on,” and he told her “it’s fine” and that she should “go home and get some

rest.”

         After Caporicci was home, she had two phone conversations with Miesel. In

the first call, Miesel “seem[ed] more empathetic.” Caporicci told him she was on

medication and that she believed her behavior was a side effect of her medication.

According to Caporicci, although Miesel listened and seemed to want to offer her a

second chance, he called back ten minutes later and told her, “I’m really sorry, but

you just looked like you were on some shit, so you’re fired and you are not

rehirable at Chipotle.”

         After the termination, Miesel sent an email to Chipotle Headquarters

explaining his decision to fire Caporicci. The email said:


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      The final incident was the employee arriving late to work and
      appeared to be under the influence of some kind of medication. I had
      face to face talks with her regarding performance previously, but with
      a zero tolerance for inebriation of any kind there had been no prior
      incident.

      It came to my attention during peak hour when she attempted to roll a
      burrito and basically flipped it upside down releasing the contents into
      a foil, she then placed the foil and tortilla (still upside down) into a
      bowl and slid it to the expeditor. I calmly sent her home since making
      a scene in front of a peak hour line of customers would have been a
      terrible idea. I then called and terminated her later in the afternoon.

      Chipotle’s employee handbook includes a Drug and Alcohol Policy, which

provides, in relevant part:

      No employee shall report to work or be at work under the influence of
      alcohol, drugs, or controlled substances, or with any detectable
      amount of alcohol, drugs, or controlled substances in his or her
      system.

      Employees who must use medically prescribed or over-the-counter
      drugs that may adversely affect their ability to perform work in a safe
      manner must notify their Manager prior to starting work. The
      Manager will decide if the employee can remain at work and/or if
      work restrictions are necessary. The employee may be required to
      take a medical leave of absence or disability leave for the duration of
      the medication.
      ...
      Any violation of this policy may result in disciplinary action, up to
      and including termination.

In sum, this policy contains two parts: first, it prohibits workplace intoxication

from any drug; second, it requires that employees notify their manager if they take

a prescription drug that “may adversely affect their ability to perform work in a

safe manner.”
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       Caporicci acknowledged in her deposition that “[m]e being intoxicated” was

the given reason why she was fired. She also agreed that “it is appropriate to

terminate people if they come to work intoxicated.”

       On June 17, 2013, Caporicci filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”). The EEOC issued a right-to-

sue letter, finding that “the evidence obtained during the investigation establishes

that there is reasonable cause to believe that Respondent terminated Charging Party

due to her disability in violation of the [ADA].”

       In August 2014, Caporicci filed this suit against Chipotle. She alleged that

Chipotle discriminated against her “because of her disability,” in violation of the

ADA and the FCRA. 2 After discovery was complete, Chipotle moved for summary

judgment. The district court found that “[w]hile Plaintiff may well have been fired

because of conduct related to medication side effects, that fact is not sufficient to

demonstrate disparate treatment based on Plaintiff’s disability.” The court

therefore granted summary judgment in favor of Chipotle on Caporicci’s claims

under the ADA and FCRA. Caporicci appealed.




       2
          Caporicci also alleged interference and retaliation claims under the Family Medical
Leave Act of 1996, 29 U.S.C. § 2615, but she does not challenge on appeal the district court’s
grant of summary judgment to Chipotle on those claims.

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                                II. LEGAL STANDARD

      We review de novo the district court’s grant of summary judgment, viewing

the facts and drawing all reasonable inferences in the light most favorable to the

non-moving party. Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008).

Summary judgment is appropriate where there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).

                                      III. ANALYSIS

      Under the ADA, covered employers may not “discriminate against a

qualified individual on the basis of disability.” 42 U.S.C. § 12112(a); see generally

Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226 (11th Cir. 1999).

Claims brought under FCRA (the Florida analog to the ADA) are analyzed using

the same framework as claims under the ADA. Holly v. Clairson Indus., L.L.C.,

492 F.3d 1247, 1255 (11th Cir. 2007).

      We analyze disparate-treatment claims under the ADA using the McDonnell

Douglas3 burden-shifting framework. See Earl v. Mervyns, Inc., 207 F.3d 1361,

1365 (11th Cir. 2000) (per curiam). Under that framework, the plaintiff has the

initial burden of establishing a prima facie case of disability discrimination.

Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004).

      3
          McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

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To establish a prima facie case, the plaintiff must show “(1) a disability, (2) that

she was otherwise qualified to perform the job, and (3) that she was discriminated

against based upon the disability.” Id. If the plaintiff establishes a prima facie

case, the burden shifts to the defendant “to articulate a legitimate, non-

discriminatory reason” for terminating the plaintiff. Id. Once the defendant

proffers a legitimate, nondiscriminatory reason for its adverse action, the burden

swings back to the plaintiff to prove that the employer’s explanation is pretextual

and that its true motive was the plaintiff’s disability. Id.

      Chipotle does not dispute that Caporicci is disabled, nor does it dispute that

she was a qualified individual. Thus, Caporicci has satisfied the first two elements

of the prima facie case. However, Caporicci’s claim fails because she cannot show

she was terminated because of her disability and—even if she could—she cannot

demonstrate that Chipotle’s nondiscriminatory explanation is pretext.

      Caporicci admitted that Miesel’s stated reason for terminating her was that

she was “intoxicated” at work. And she does not dispute that she was in fact

intoxicated on Saphris on the day she was fired. She conceded that because of the

Saphris, she became “very slow, messed up orders, and was incoherent.” Further,

she agreed that “it is appropriate to terminate people if they come to work

intoxicated.” Based on these admissions, she did not dispute in the district court

that she violated the provision of Chipotle’s Drug and Alcohol Policy that prohibits


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employees from being “at work under the influence of alcohol, drugs, or controlled

substances.”

       The district court found that Chipotle had fired Caporicci because she

violated this neutral, generally applicable rule, meaning her firing was not

disability-related. Whether a firing based on disability-related intoxication

constitutes disability-based discrimination under the ADA is an open question in

this circuit 4 and one on which other circuits are split.5 However, Caporicci did not

raise this issue in her brief. 6 Therefore that issue is considered abandoned on

appeal. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam)

(“[I]ssues not briefed on appeal . . . are deemed abandoned.”).



       4
          There is an unpublished Eleventh Circuit opinion that refuses allowance for disability-
related intoxication. In J.A.M. v. Nova Se. Univ., Inc., 646 F. App’x 921 (11th Cir. 2016) (per
curiam), the plaintiff, a medical student, suffered from major depressive disorder, a mental
disability. Id. at 923, 926. His depression caused him to abuse alcohol. Id. at 923. The
plaintiff’s medical school expelled him for “breach[ing] his agreement to abstain from alcohol
consumption.” Id. at 926. This Court held that, on those facts, the plaintiff failed to state a claim
for disability discrimination under the ADA. Id.
       5
          The Fourth Circuit has held that “misconduct—even misconduct related to a
disability—is not itself a disability and may be a basis for dismissal.” Halpern v. Wake Forest
Univ. Health Scis., 669 F.3d 454, 465 (4th Cir. 2012) (quotation omitted); see also J.A.M., 646
F. App’x at 926 (citing Halpern). On the other hand, the Ninth Circuit has held that “conduct
resulting from a disability is considered to be part of the disability, rather than a separate basis
for termination.” Dark v. Curry Cty., 451 F.3d 1078, 1084 (9th Cir. 2006) (quotation omitted).
       6
          Caporicci referenced this argument in a single sentence on the last page of argument in
her brief. Such a fleeting reference is not sufficient to raise the issue to this court. See Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an
appellant abandons a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”).

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       Instead, Caporicci’s argument is based on the second part of Chipotle’s Drug

and Alcohol Policy, which requires employees to notify their manager “prior to

starting work” if they take a prescription drug that “may adversely affect their

ability to perform work in a safe manner.” Ms. Caporicci asserts she didn’t

actually violate this provision, thus establishing the third prong of her prima facie

case and showing a pretext for discrimination.7

       This argument is unavailing. Miesel told Caporicci that she was fired for

“being intoxicated” at work. Miesel did not say anything to her about violating the

notification provision. Neither did he mention the notification requirement in his

email to Chipotle Headquarters explaining his decision to fire her. Rather, he said

he fired her because she was “under the influence of some kind of medication,”

causing her to mess up an order during “peak hour.” He also invoked the

company’s “zero tolerance for inebriation of any kind.”

       Caporicci violated the policy’s prohibition on workplace intoxication, and

this violation was Chipotle’s stated reason for firing her.8 “A plaintiff is not

       7
         Where a plaintiff was fired for violating a company rule, she can satisfy both the third
prong of the prima facie case and the pretext prong by showing she did not violate the rule the
employer claims she violated. See Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989)
(explaining that in cases involving discipline for violation of work rules, the plaintiff can
establish the prima facie case by showing she “did not violate the work rule”); Damon v.
Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 (11th Cir. 1999) (“[T]he ‘work rule’
defense is arguably pretextual when a plaintiff submits evidence [] that she did not violate the
cited work rule.”).
       8
         At oral argument Caporicci suggested the notification provision must be read in
conjunction with the workplace intoxication provisions. However, Caporicci never raised this
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allowed to recast an employer’s proffered nondiscriminatory reasons . . . .

Provided that the proffered reason is one that might motivate a reasonable

employer, [the] employee must meet that reason head on and rebut it . . . .”

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

Caporicci has failed to do so.

       AFFIRMED.




argument to the district court. In her response to Chipotle’s motion for summary judgment,
Caporicci only mentioned the notice requirement in support of her argument that Miesel “failed
to ascertain whether [she] was under the influence of illegal drugs” before firing her. She did not
put forward her preferred reading of Chiptole’s policies, nor did she argue that her compliance
with the notification provision rendered Chipotle's stated reason for her firing pretextual.
Therefore, she cannot now raise that argument on appeal. See Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“[A]n issue not raised in the district court and raised
for the first time in an appeal will not be considered by this court.” (quotation omitted)).

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