               Case: 15-12119       Date Filed: 04/07/2016       Page: 1 of 17


                                                                                 [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-12119
                              ________________________

                      D.C. Docket No. 8:13-cv-01854-CEH-TBM



DELORES FRAZIER-WHITE,

                                                                        Plaintiff-Appellant,

versus


DAVID GEE, in his official capacity as Sheriff
of Hillsborough County, Florida,


                                                                       Defendant-Appellee.

                              ________________________

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

                                       (April 7, 2016)

Before HULL, JULIE CARNES, and CLEVENGER, * Circuit Judges.

         *
           Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal
Circuit, sitting by designation.
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JULIE CARNES, Circuit Judge:

      Plaintiff appeals the district court’s order granting summary judgment to

Defendant on her disability discrimination and retaliation claims arising under the

Americans with Disabilities Act (“ADA”) and the Florida Civil Rights Act

(“FCRA”). After a careful review of the record, and with the benefit of oral

argument, we affirm.

                                 BACKGROUND

I.    Factual Background

      This case arises from the termination of Plaintiff’s employment from the

Hillsborough County Sheriff’s Office (“HCSO”) in June 2011. Plaintiff was hired

by the HCSO in 1990, and she held various positions there until her termination.

During her last few years at the HCSO, Plaintiff was a community service officer

(“CSO”). As a CSO, Plaintiff was responsible for security-related duties at the

sheriff’s detention center, including checking in and screening visitors, issuing

badges, completing paperwork and logs, answering and routing telephone calls,

and locking and unlocking secure doors within the center.

      Plaintiff was injured in a work-related accident on July 29, 2010, when a

heavy metal door closed on her right arm and pinned her against a door frame. She

returned to work a few days later, but was unable to perform her regular CSO




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duties. She was thus placed on light-duty status and temporarily assigned to a

position as an inactive records desk clerk.

      HCSO standard operating procedure 213.00 defines “light duty” as a

temporary disability status. Pursuant to SOP 213.00, light-duty positions are not

available to HCSO employees on a permanent basis. Rather, they are temporarily

available so that employees can work at full salary while they recover from an

illness or injury. SOP 213.00 requires a medical due process hearing when an

employee has been on light-duty status for 270 days during a two-year period. The

purpose of the hearing is to determine whether the employee can return to full duty

within a reasonable period of time. If not, the employee is subject to a non-

disciplinary dismissal.

      Plaintiff was on light-duty status from August 2010 until her termination in

June 2011. During that time, Plaintiff was evaluated by several workers’

compensation doctors. Dr. Stuart Goldsmith, an orthopedic surgeon, examined

Plaintiff in September 2010. He diagnosed her with a contusion/sprain of her right

shoulder, right hip, and lower back, and prescribed physical therapy. After several

months of therapy and evaluation, Dr. Goldsmith determined that Plaintiff had

reached maximum medical improvement (“MMI”) and discharged her with no

work restrictions on February 10, 2011. Dr. Thomas Newman, a neurologist,

performed an EMG and a nerve conduction test on Plaintiff in December 2010.



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The results were essentially normal, and determining that Plaintiff had reached

MMI, Dr. Newman discharged her with no impairments or work restrictions in

January 2011.

         Plaintiff sought an evaluation and second opinion by Dr. Thomas Greene, an

orthopedic surgeon, in March 2011. Dr. Greene ordered a cervical MRI, which

revealed disc abnormalities and spinal stenosis with cord compression.1 Dr.

Greene noted that the abnormalities were degenerative and probably were not

caused, although they possibly were aggravated, by the July 2010 accident. He

recommended evaluation by an orthopedist or neurosurgeon, but placed Plaintiff at

MMI status with no impairment or restrictions as of April 26, 2011.

         In the meantime, Defendant kept Plaintiff abreast of her accumulated light-

duty days and of the requirement, pursuant to SOP 213.00, that she return to full

duty after 270 days. On January 6, 2011, HCSO risk management director Richard

Swann sent Plaintiff a letter informing her that she had been on light-duty status

for 162 days, and that she would be subject to termination if she did not either

return to full duty by April 24, 2011 or obtain a discretionary extension. Assuming

she was not able to resume full duty in her CSO position by that date, the letter

encouraged Plaintiff to contact Swann to discuss possible ADA accommodations

and civil service application for other jobs in the HCSO.


1
    Plaintiff had previously refused to have an MRI because of claustrophobia.


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       In response to the January 6 letter, Plaintiff sent a handwritten note to Swann

on April 3, 2011. Plaintiff stated in the note that she was still having diagnostic

procedures to find out why she had not fully recovered from her injuries. She

requested “an extension to continue to receive care” so that she could “get better

and return to full duty 100%.” However, she did not specify the length of the

requested extension or suggest any other accommodations that would enable her to

return to full duty by April 24, 2011, either in her CSO position or in any capacity.

       On April 11, 2011, Swann sent Plaintiff a second letter concerning her light-

duty status. The letter informed Plaintiff that she had been on light duty for 256

days, and advised her that she was expected to return to full duty by April 24,

2011, pursuant to SOP 213.00. It again encouraged Plaintiff to contact Swann to

discuss potential ADA accommodations and a civil service application for other

jobs if she was unable to resume her full-duty CSO position by that date. Plaintiff

was familiar with the HCSO’s online job search and application process, and she

had used it in the past. However, she did not submit any applications or otherwise

respond to the April 11 letter.

       On April 15, 2011, Defendant sent Plaintiff notice of a non-disciplinary

medical due process hearing pursuant to SOP 213.00. 2 The notice informed


2
  Plaintiff received a second notice on May 3, 2011. It was identical to the first, except it
rescheduled the due process hearing from April 27, 2011 to May 24, 2011, to account for
Plaintiff’s accrued sick and vacation time.


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Plaintiff that she had exceeded 270 days of light-duty status in a two-year period,

and that a hearing was thus required to determine her prospects for returning to full

duty. It advised Plaintiff that the hearing could result in her dismissal, and that

possible topics for discussion at the hearing were application of the ADA and

options for alternative employment within the HCSO or in the civil service system.

Plaintiff did not submit any applications, and she did not contact Swann to discuss

accommodations, job opportunities, or any other topic identified in the notice.

      A hearing panel, led by Swann, conducted Plaintiff’s due process hearing on

May 24, 2011. Swann opened the hearing by explaining that full-duty service by

every employee is essential to the efficient operation of the HCSO, and that SOP

213.00 thus limits light-duty eligibility to 270 days within a two-year period. It

was noted that Plaintiff had been in a light-duty status for 299 days, and Swann

asked whether she would be able to return to full duty within a reasonable period

of time. Plaintiff responded that her most recent MRI showed serious spinal

damage, and that she could not estimate when she would be able to return to full

duty. She confirmed that she could not perform the essential duties of her CSO

position, and she did not suggest any accommodations that would enable her to

immediately resume full duty in any capacity.

      At the conclusion of the hearing, Swann informed Plaintiff that the panel had

decided to recommend her termination. Although Plaintiff had not applied for any



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other jobs, she asked if she had the “option of . . . doing something else.” Swann

told Plaintiff that she would be considered for any full-duty position she was

qualified and able to do with her medical condition, but he noted that she had not

submitted any applications or even identified a potentially suitable position. It was

clarified that Plaintiff’s termination was non-disciplinary, and that she would

remain eligible for any benefits she had accrued while working for the HCSO.

       A few days after the due process hearing, Plaintiff consulted with Dr. Larry

Fishman, a neurosurgeon, concerning her cervical disc abnormalities. Dr. Fishman

determined that Plaintiff had a large herniated disc in her cervical spine, with cord

compression.3 He recommended immediate spinal fusion surgery to prevent spinal

cord damage, and he performed the surgery on June 7, 2011. A few months after

the surgery, Dr. Fishman examined Plaintiff and determined that she was at MMI

as of August 19, 2011, with no restrictions except heavy lifting. However, Plaintiff

claims that she continued to experience constant and severe pain after the surgery.

       Consistent with the recommendation of the due process panel, Plaintiff was

dismissed from her employment with the HCSO on June 10, 2011. The stated

reason for her dismissal was a “demonstrated physical impairment, with or without

reasonable accommodations, that prevents [her] from performing the essential



3
  Dr. Fishman concurred with Drs. Newman and Greene that her cervical damage was likely
unrelated to her July 2010 accident.


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functions of [her] position.” Plaintiff did not, at any time after her termination,

apply for any other positions at the HCSO.

      In November 2011, Plaintiff submitted a claim to the HCSO for disability

benefits. In support of her claim, Plaintiff presented the results of an examination

conducted by her orthopedic surgeon and independent medical examiner, Dr. Paul

Zak, on November 11, 2011. Dr. Zak found that, as of the date of his examination,

Plaintiff was temporarily totally disabled and not at MMI as a result of pain and

physical limitations caused by her cervical disc problems. Nevertheless, the HCSO

denied Plaintiff’s claim for benefits, citing a lack of competent evidence that her

work-related accident was a major contributing cause of her disability.

      Plaintiff subsequently applied for social security disability benefits. In

support of her application, Plaintiff asserted that she was disabled and unable to

work. Based on that assertion, and presumably on supporting documentation

provided by her treating doctors, Plaintiff was approved for benefits in April 2012.

In her deposition in this case, Plaintiff confirmed that, as of January 2014, she still

is unable to work because of continuing physical limitations, including nerve

damage and constant pain, and that she currently receives disability benefits.

II.   Procedural History

      Following her termination, Plaintiff filed this lawsuit asserting disability




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discrimination and retaliation claims under the ADA and the FCRA. 4 Defendant

moved for summary judgment, and the district court granted its motion. The court

concluded that Plaintiff was not a “qualified individual” as required to support a

disability discrimination claim under either the ADA or the FCRA. In addition, the

court determined that Plaintiff’s only specific request for an accommodation of her

disability—an indefinite extension of her light-duty status—was unreasonable as a

matter of law. As to her retaliation claims, the court found no evidence of a causal

link between Plaintiff’s protected expression of requesting an accommodation and

her termination, which was the only alleged adverse action.

                                       DISCUSSION

I.     Standard of Review

       We review the district court’s order granting summary judgment de novo,

“viewing all the evidence, and drawing all reasonable inferences” in favor of

Plaintiff. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005).

Summary judgment is only proper if there are no genuine issues of material fact,

and Defendant is entitled to judgment as a matter of law. Id.




4
  Plaintiff also asserted a workers’ compensation retaliation claim under Fla. Stat. § 440.205, a
Title VII race discrimination claim, and interference and retaliation claims under the Family
Medical Leave Act (“FMLA”). The district court remanded Plaintiff’s worker’s compensation
claim to state court and granted summary judgment on her Title VII and FMLA claims. Plaintiff
does not appeal those decisions.


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II.   Plaintiff’s Disability Discrimination Claims

      The ADA prohibits discrimination “against a qualified individual on the

basis of disability.” 42 U.S.C. § 12112(a). To prevail on her disability

discrimination claim under the ADA, Plaintiff must show that: (1) she is disabled,

(2) she was a “qualified individual” when she was terminated, and (3) she was

discriminated against on account of her disability. Wood v. Green, 323 F.3d 1309,

1312 (11th Cir. 2003). Plaintiff’s disability discrimination claim under the FCRA

includes the same essential elements. See Greenberg v. BellSouth Telecomm., Inc.,

498 F.3d 1258, 1263–64 (11th Cir. 2007) (“Claims raised under the Florida law are

analyzed under the same framework as the ADA.”).

      The issues in this case are narrow. The parties agree that Plaintiff is

disabled. And Plaintiff concedes that, at the time of her termination, she was not

“qualified” without some form of accommodation, because she could not perform

the essential duties of her CSO position. The only question is thus whether

Defendant discriminated against Plaintiff by failing to provide a reasonable

accommodation that would have enabled her to perform either her CSO duties or

the essential duties of another position for which she was qualified. See 42 U.S.C.

§ 12111(8) (defining the term “qualified individual” to mean “an individual who,

with or without reasonable accommodation, can perform the essential functions of

the employment position that such individual holds or desires”).



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      The ADA requires an employer to make “reasonable accommodations” to an

otherwise qualified employee with a disability, “unless doing so would impose [an]

undue hardship.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.

2001) (citing 42 U.S.C. § 12112(b)(5)(A) and 29 C.F.R. § 1630.9(a)). An

accommodation is only reasonable if it allows the disabled employee to perform

the essential functions of the job in question. Id. What constitutes a reasonable

accommodation depends on the circumstances, but it may include “job

restructuring, part-time or modified work schedules, [and] reassignment to a vacant

position” among other things. 42 U.S.C. § 12111(9)(B).

      The employee has the burden of identifying an accommodation and

demonstrating that it is reasonable. Lucas, 257 F.3d at 1255–56. Assuming she

cannot do so, the employer has no affirmative duty to show undue hardship. Earl

v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000). Moreover, an employer’s

“duty to provide a reasonable accommodation is not triggered unless a specific

demand for an accommodation has been made.” Gaston v. Bellingrath Gardens &

Home, Inc., 167 F.3d 1361, 1363–64 (11th Cir. 1999) (“[T]he initial burden of

requesting an accommodation is on the employee. Only after the employee has

satisfied this burden and the employer fails to provide that accommodation can the

employee prevail on a claim that her employer has discriminated against her.”).

      Generously construing her communications to Defendant prior to and during



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the May 24 due process hearing, Plaintiff proposed two accommodations: (1) an

indefinite extension of her light-duty status, and (2) reassignment to some other,

unspecified position. As discussed below, we agree with the district court that

neither proposal was reasonable. We further agree that Defendant is not liable for

failing to engage in an “interactive process” to identify a different accommodation,

as Plaintiff suggests. Accordingly, the district court properly granted summary

judgment to Defendant on Plaintiff’s disability discrimination claims.

      A.     Indefinite Extension of Light-Duty Status

      In her April 3 handwritten note to Swann, Plaintiff requested “an extension

to continue to receive care” so that she could “get better and return to full duty

100%.” Presumably Plaintiff was referring to an extension of her light-duty status

for some time beyond the April 24, 2011 date that she was required by SOP 213.00

to return to full duty. But Plaintiff did not suggest a time frame for when she

would be able to resume her full-duty position, and she later admitted at the due

process hearing that she did not know how much time she needed or whether any

amount of time would be sufficient. As the district court correctly held, Plaintiff’s

request for an indefinite extension of light-duty status was unreasonable as a matter

of law. See Wood, 323 F.3d at 1314 (“The ADA covers people who can perform

the essential functions of their jobs presently or in the immediate future.”).

      To the extent Plaintiff intended to request a permanent light-duty position, it



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is undisputed that no such position existed. SOP 213.00 provides that every HCSO

employee is essential to its efficient operation, and that eligibility for light-duty

status is thus limited to 270 days during a two-year period. Defendant was not

required by the ADA to create a permanent light-duty position especially for

Plaintiff. See Sutton v. Lader, 185 F.3d 1203, 1211 (11th Cir. 1999) (holding that

the Rehabilitation Act did not require an employer to create a light-duty position

for a disabled plaintiff); Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117

F.3d 1278, 1286 (11th Cir. 1997) (“Stated plainly, under the ADA a qualified

individual with a disability is not entitled to the accommodation of her choice, but

only to a reasonable accommodation.” (internal quotation marks omitted)).

      B.     Reassignment

      At the conclusion of the May 24 due process hearing, Plaintiff asked

whether she had the “option of . . . doing something else.” Construing her

statement as a request for reassignment, Plaintiff did not support the request with

any evidence that there was a specific, full-duty vacant position she was qualified

for and could have done, given her medical condition. See Duckett v. Dunlop Tire

Corp., 120 F.3d 1222, 1224–25 (11th Cir. 1997) (“[T]he issue of whether an

employee is an otherwise qualified individual and whether a reasonable

accommodation can be made for that employee is determined by reference to a

specific position.”)



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      In opposition to Defendant’s motion for summary judgment, Plaintiff

produced records showing numerous vacancies in the HCSO during the time she

was on light duty. But again, Plaintiff did not ever request reassignment to a

specific position or provide any information that would have enabled Defendant to

determine whether she could perform the essential duties of a vacant position given

her physical limitations. Plaintiff’s testimony at the due process hearing suggests

that she could not have returned to full duty in any capacity. And Plaintiff stated in

her deposition that she still could not work, and that she had been approved for and

was receiving disability benefits on that basis. Plaintiff does not explain how she

would nevertheless be able to perform the essential duties of the vacant positions

she has identified, beyond her conclusory statement that there were jobs she

“believe[s] she could have performed” with additional, unspecified

accommodations. See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797–

98 (1999) (providing that the “pursuit, and receipt, of SSDI benefits does not

automatically estop the recipient from pursuing an ADA claim” but “an ADA

plaintiff cannot simply ignore her SSDI contention that she was too disabled to

work”).

      Moreover, Plaintiff admits that she did not apply for any position. The civil

service rules governing the HCSO require that an employee submit a civil service

application and be placed on a list of qualified employees prior to being hired to a



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position. For that reason, Plaintiff was advised multiple times that, if she could not

return to full duty in her CSO position at the expiration of her light-duty eligibility,

she should consider submitting a civil service application for other positions.

Plaintiff was familiar with the HCSO’s online job search and application process

and had used it in the past, but she simply did not avail herself of the process in

this case. The ADA does not require Defendant to reassign Plaintiff in violation of

its governing civil service rules. See Davis v. Fla. Power & Light Co., 205 F.3d

1301, 1306 (11th Cir. 2000) (“The ADA does not require accommodations . . . that

contravene the seniority rights of other employees under a collective bargaining

agreement.”).

      C.     Failing to Initiate an Interactive Process

      Finally, the district court properly rejected Plaintiff’s claim that Defendant

failed to initiate an “interactive process” to identify a reasonable accommodation,

as required by ADA regulations. The regulations state that an employer may in

some circumstances need to “initiate an informal, interactive process” with a

disabled employee to determine the appropriate reasonable accommodation. 29

C.F.R. § 1630.2(o)(3). As the district court noted, Defendant tried to initiate such

a process by encouraging Plaintiff to (1) contact Swann to discuss ADA

accommodations and (2) submit a civil service application for any other positions

Plaintiff believed she was qualified and able to do. Plaintiff’s only response was to



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request an indefinite extension of her light-duty status, an unreasonable

accommodation as a matter of law. Any failure in the interactive process must

therefore be attributed to Plaintiff.

       Moreover, Plaintiff has failed to identify any reasonable accommodation that

would have allowed her to return to full duty within the time required by SOP

213.00. Her request for indefinite light-duty status is unreasonable as a matter of

law, and her request for reassignment is unsupported by evidence that it would

have enabled her to perform the essential functions of any specific, vacant full-duty

position. Consequently, there is no basis for imposing liability on Defendant for

failing to engage in an “interactive process” to identify accommodations. See

Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997) (“[W]here a plaintiff

cannot demonstrate ‘reasonable accommodation,’ the employer’s lack of

investigation into reasonable accommodation is unimportant.”).

III.   Plaintiff’s Retaliation Claim

       The ADA prohibits retaliation against an individual for opposing an

unlawful practice or making a charge under the ADA. 42 U.S.C. § 12203(a). To

prevail on her ADA retaliation claim, Plaintiff must show that: (1) she engaged in

a statutorily protected expression, (2) she suffered an adverse employment action,

and (3) there was a causal link between the two. Lucas, 257 F.3d at 1260. The

first element may be met by a request for a reasonable accommodation. See



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Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1328 (11th Cir. 1998). The third

element requires a showing of but-for causation. See Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 133 S. Ct. 2517, 2533–34 (2013).

       In support of her retaliation claim, Plaintiff argues that she was terminated

because she requested an accommodation. Assuming Plaintiff’s request for

indefinite extension of her light-duty status and reassignment constitute protected

expression, there is no evidence that either request was in any way related to her

termination. Plaintiff did not request the extension until after being advised that

she was subject to dismissal pursuant to SOP 213.00, and she did not request

reassignment until after being informed that the hearing panel had decided to

recommend her termination, negating any logical inference of causation. In

addition, all of the evidence in the record shows that Plaintiff was terminated

solely as the result of her inability to return to full duty at the expiration of her

eligibility for light-duty status under SOP 213.00. As there is no evidence to

support causation, the district court properly granted summary judgment on

Plaintiff’s retaliation claim.

                                    CONCLUSION

      For the reasons stated above, we find no error in the district court’s order

granting summary judgment to Defendant on Plaintiff’s claims. Accordingly, we

affirm.



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