            Case: 12-11751    Date Filed: 12/07/2012   Page: 1 of 25

                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 12-11751
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:10-cv-03269-GGB

BEVERLY GILLIARD,

                                                 Plaintiff-Appellant,

                                    versus

GEORGIA DEPARTMENT OF CORRECTIONS,
CHARLES SMITH,
SCOTT POITEVINT,
UTE SHEPHERD,
BECKY EAST,
CINDY SCHWEIGER,

                                             Defendants-Appellees.
                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                        ________________________
                             (December 7, 2012)

Before DUBINA, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Beverly Gilliard, appearing pro se, appeals the magistrate judge’s
               Case: 12-11751        Date Filed: 12/07/2012      Page: 2 of 25

grant of summary judgment to Becky East, Scott Poitevint, Ute Shepherd, Charles

Smith, Cindy Schweigler (collectively, “individual defendants”), and the Georgia

Department of Corrections (“GDC”), her employer (collectively, “defendants”) in

her disability-discrimination suit brought under the Americans with Disabilities

Act (“ADA”), the Rehabilitation Act (“Rehab Act”), and the Family and Medical

Leave Act (“FMLA”).1 Gilliard sought monetary damages and prospective

injunctive relief.

                                               I.

       On appeal, Gilliard argues that she qualified for FMLA leave, she exercised

her FMLA rights, she suffered adverse employment actions, namely, a five-percent

salary reduction and termination, and there was a causal connection between her

exercising her FMLA rights and those adverse actions. Gilliard argues that, to the

extent she took excessive leave, it was due to the defendants’ refusal to

accommodate her. Furthermore, Gilliard contends that the defendants violated the

FMLA by requiring her to return a certain form completed by her doctor sooner

than the 15-day period provided under the FMLA, and that the defendants

interfered with her FMLA rights because she received 3 days less than the full 12



       1
         Both parties consented to jurisdiction by a U.S. Magistrate Judge pursuant to 28 U.S.C.
§ 636 et seq.

                                                2
              Case: 12-11751    Date Filed: 12/07/2012    Page: 3 of 25

weeks of FMLA leave, as she had sick and annual leave available when she was

terminated. Gilliard alleges that Schweiger designated Gilliard’s FMLA leave

retroactively, in violation of the FMLA. Gilliard also argues that she was denied

extended leave after her FMLA leave expired on October 20, 2008, which was

unreasonable where she provided a physician’s form indicating that she would be

disabled until February 1, 2009. Finally, Gilliard argues that, based on the timing

between her requests for accommodations, her filing of a charge with the Equal

Employment Opportunity Commission (“EEOC”), her use of FMLA leave, and her

termination, she produced enough evidence for a reasonable trier of fact to

conclude that the defendants’ proffered reasons—that she failed to return to work

at the expiration of her FMLA leave, she was not satisfactorily performing her

duties prior to taking FMLA leave, and her absence would burden other

employees—were pretextual.

      The defendants respond that Gilliard’s FMLA claims against GDC and the

individual defendants in their official capacities are barred by Eleventh

Amendment immunity. They contend that, with regard to Gilliard’s claims for

injunctive relief, she applied for Social Security Disability (“SSDI”) benefits in a

separate proceeding and claimed that she was totally disabled as of August 2008,

which would estop her claims for reinstatement or front pay because she was

                                          3
              Case: 12-11751    Date Filed: 12/07/2012   Page: 4 of 25

claiming to be unable to work prior to her termination in October 2008.

      We review a court’s order granting summary judgment de novo, “viewing

all the evidence, and drawing all reasonable inferences, in favor of the

non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th

Cir. 2005) (per curiam). Summary judgment is only proper if there are no genuine

issues of material fact, and the moving party is entitled to judgment as a matter of

law. Id. “A mere ‘scintilla’ of evidence supporting the opposing party’s position

will not suffice; there must be enough of a showing that the jury could reasonably

find for that party.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d

1160, 1162 (11th Cir. 2006). Arguments that are not briefed on appeal are deemed

abandoned. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.

2004).

      Under the FMLA, “an eligible employee shall be entitled to a total of 12

workweeks of leave during any 12-month period” for “a serious health condition

that makes the employee unable to perform the functions of [her] position.” 29

U.S.C. § 2612(a)(1)(D). Employers are responsible for designating leave as

FMLA-qualifying, and when the employer has enough information to determine

whether leave is being taken for a FMLA-qualifying reason, the employer must

notify the employee within five business days whether the leave will be designated

                                          4
              Case: 12-11751    Date Filed: 12/07/2012   Page: 5 of 25

and counted as FMLA leave. 29 C.F.R. § 825.300(d)(1). An employee is entitled

to additional notification if the employer retroactively designates FMLA leave

only if the employer does not designate the leave as required by § 825.300. 29

C.F.R. § 825.301(d). The leave provisions of the FMLA are “wholly distinct from

the reasonable accommodation obligations of employers covered under the ADA.”

29 C.F.R. § 825.702(a) (internal brackets omitted).

      We have recognized that the FMLA “creates two types of claims:

interference claims, in which an employee asserts that his employer denied or

otherwise interfered with his substantive rights under the Act, and retaliation

claims, in which an employee asserts that his employer discriminated against him

because he engaged in activity protected by the Act.” Hurlbert v. St. Mary’s

Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006) (internal quotation

marks omitted). “To establish an interference claim, an employee need only

demonstrate by a preponderance of the evidence that he was entitled to the benefit

denied.” Id. (internal quotation marks omitted).

      Where a plaintiff alleges an FMLA retaliation claim without direct evidence

of the employer’s retaliatory intent, we apply the burden-shifting framework for

evaluating discrimination claims under Title VII of the Civil Rights Act of 1964

(“Title VII”) established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

                                          5
              Case: 12-11751     Date Filed: 12/07/2012   Page: 6 of 25

S. Ct. 1817 (1973). Id. at 1297. To establish a prima facie case of retaliation

under that framework, the plaintiff must show that (1) she engaged in statutorily

protected conduct; (2) she experienced an adverse employment action; and (3)

there is a causal connection between the protected activity and the adverse

employment action. Id. If the plaintiff establishes a prima facie case, the burden

then shifts to the defendant to articulate a legitimate reason for the adverse action.

Id. If the defendant provides such a reason, the plaintiff must then show that the

defendant’s proffered reason for the adverse action is pretextual. Id. To establish

a retaliation claim, the plaintiff also must show that the employer’s actions were

motivated by an “impermissible retaliatory or discriminatory animus.” Strickland

v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1207 (11th

Cir. 2001). The causation element may be shown by the temporal proximity of the

complaints to the adverse employment action, “[b]ut mere temporal proximity,

without more, must be ‘very close.’” Thomas v. Cooper Lighting, Inc., 506 F.3d

1361, 1364 (11th Cir. 2007) (per curiam) (quoting Clark Cnty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001). In Thomas, we stated

that a three-to-four-month disparity between the protected activity and the adverse

employment action was not sufficient without other evidence tending to show

causation. 506 F.3d at 1364.

                                           6
             Case: 12-11751     Date Filed: 12/07/2012   Page: 7 of 25

      Pretext means that the reason given by the employer was not the real reason

for the adverse employment decision. Combs v. Plantation Patterns, 106 F.3d

1519, 1528 (11th Cir. 1997). “[A] reason cannot be proved to be a ‘pretext for

discrimination’ unless it is shown both that the reason was false, and that

discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

515, 113 S. Ct. 2742, 2752 (1993). In this respect, conclusory allegations or

unsupported assertions of discrimination, without more, do not raise an inference

of pretext where an employer has offered extensive evidence of legitimate,

nondiscriminatory reasons for its actions. Mayfield v. Patterson Pump Co., 101

F.3d 1371, 1376 (11th Cir. 1996). Instead, the plaintiff “must meet [the proffered]

reason head on and rebut it, and the employee cannot succeed by simply

quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d

1012, 1030 (11th Cir. 2000) (en banc). A plaintiff will withstand summary

judgment by demonstrating “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could find them unworthy of credence.”

Combs, 106 F.3d at 1538 (internal quotation marks omitted).

      In Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797, 119 S. Ct.

1597, 1600 (1999), the Supreme Court stated that the pursuit, and receipt, of SSDI

                                         7
              Case: 12-11751    Date Filed: 12/07/2012    Page: 8 of 25

benefits, which are provided to persons with disabilities so severe that they are

unable to do their previous work and cannot engage in gainful employment, does

not automatically estop a recipient from pursuing an ADA claim. We have not

addressed whether Cleveland applies in the context of a plaintiff’s FMLA claims.

      As an initial matter, Gilliard does not argue on appeal that the magistrate

judge erred in finding that her FMLA claims for monetary relief against GDC and

the individual defendants in their official capacities were barred by the Eleventh

Amendment, and, thus, she has abandoned those claims. Gilliard’s claims for

prospective injunctive relief remain, and even if we held that Cleveland applied in

the context of Gilliard’s FMLA claims, an issue we need not reach, she would not

be estopped from pursuing her remaining claims, as discussed below.

      With regard to Gilliard’s FMLA interference claim, any issue of fact was

not material because Gilliard did not present more than a scintilla of evidence

showing that her 12-week FMLA leave period was reduced by 3 days. To the

extent that Gilliard argues that the failure to provide her with extended leave at the

conclusion of her FMLA leave denied her of a reasonable accommodation, the

reasonable-accommodation requirement under the ADA is distinct from a FMLA

interference claim. Moreover, the FMLA did not require GDC to provide more

than the 12 weeks of job-protected leave that Gilliard received.

                                          8
              Case: 12-11751    Date Filed: 12/07/2012    Page: 9 of 25

      With regard to Gilliard’s FMLA retaliation claims, assuming, arguendo,

that she established a prima facie case of retaliation under the FMLA, she did not

establish that the legitimate, nondiscriminatory reasons proffered by the

defendants for the proposed five-percent salary reduction and her termination were

pretexts for retaliation. She did not demonstrate that the proffered reasons were

not the “real” reasons for those employment actions, or that the real reasons were

discriminatory animus against her.

      Finally, Gilliard received notice that her leave was designated as FMLA

leave in accordance with § 825.300(d)(1) because she received notice within five

business days of East’s receipt of the necessary information. Thus, Gilliard’s

leave was not improperly designated retroactively as FMLA leave. Accordingly,

we conclude that the magistrate judge did not err in concluding that the defendants

were entitled to summary judgment as to Gilliard’s FMLA claims.

                                         II.

      Gilliard argues that she was locked in her supervisor Smith’s office, which

placed her in a hostile environment, that she filed an internal complaint, and Smith

then retaliated against her by writing a Memorandum of Concern (“MOC”).

Gilliard argues that she established a prima facie case for disability discrimination

under the Rehab Act and the ADA because she is a qualified individual with a

                                          9
             Case: 12-11751     Date Filed: 12/07/2012    Page: 10 of 25

disability, she suffered adverse employment actions, including termination and a

salary reduction, and she was replaced by a less qualified and non-disabled

employee after she was reassigned or demoted. Gilliard argues that she was

impaired under the ADA and Rehab Act based on (1) “stroke level” hypertension,

(2) mental illness that affected her ability to concentrate and sleep, (3) spinal

arthritis and a bulging disc or sciatica causing chronic back pain, and (4)

osteoarthritis that required knee-replacement surgery that affected her ability to

walk, stand, and sit. Gilliard contends that she was denied various reasonable

accommodations she requested, including (1) to wear sneakers, (2) an adjusted

four-day workweek schedule to attend therapy, (3) an office to accommodate her

wheelchair, and (4) a closer parking space that she did not receive until after 30

days. Gilliard argues that Smith called her a “cripple” and a “hopalong,” and the

Rehab Act prohibits employers from treating an employee as impaired. Gilliard

argues that, after she filed a charge with the EEOC, Smith retaliated against her by

requiring her to sign in and out daily.

      Again, we review a district court’s order granting summary judgment de

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

the non-moving party.” Vessels, 408 F.3d at 767. A mere ‘scintilla’ of evidence

supporting the opposing party’s position will not suffice to withstand summary

                                          10
               Case: 12-11751       Date Filed: 12/07/2012      Page: 11 of 25

judgment. Brooks, 446 F.3d at 1162. The proper procedure for a plaintiff to assert

a new claim is to amend the complaint, and not through argument in a brief

opposing summary judgment. Gilmour v. Gates, McDonald & Co., 382 F.3d

1312, 1315 (11th Cir. 2004) (per curiam). We may affirm on any ground that

appears in the record, regardless of whether the district court considered or relied

upon that ground. Thomas, 506 F.3d at 1364.

       The ADA provides that no covered employer “shall discriminate against a

qualified individual with a disability because of the disability of such individual in

regard to . . . discharge of employees” and any of the “terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a) (2007).2 We evaluate

disability-discrimination claims brought under the ADA under the McDonnell

Douglas framework, under which, the plaintiff must first establish a prima facie

case of discrimination. Cleveland v. Home Shopping Network, Inc., 369 F.3d

1189, 1193 (11th Cir. 2004). To establish a prima facie case of employment

discrimination under the ADA, a plaintiff must show that: (1) she has a disability;

       2
          Congress recently enacted major changes to the ADA by adoption of the Americans
with Disabilities Act Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat.
3553 (2008), effective Jan. 1, 2009. All of the conduct alleged in Gilliard’s complaint occurred
prior to the ADAAA’s effective date. In granting the defendants’ motion for summary judgment,
the magistrate judge applied pre-amendment ADA law. We have not addressed in a published
opinion the issue of whether the ADAAA applies retroactively. Because Gilliard does not assert
that the magistrate erred by applying the pre-amendment ADA laws, we do not address the
ADAAA’s potential retroactivity.

                                              11
              Case: 12-11751     Date Filed: 12/07/2012    Page: 12 of 25

(2) she is a qualified individual with or without a reasonable accommodation; and

(3) she was discriminated against because of her disability. Rossbach v. City of

Miami, 371 F.3d 1354, 1356–57 (11th Cir. 2004) (per curiam). Claims brought

under the Rehab Act are analyzed under the same framework as the ADA, and,

thus, need not be addressed separately. Cash v. Smith, 231 F.3d 1301, 1305 (11th

Cir. 2000).

       The pre-amendment ADA defines “disability” as “(A) a physical or mental

impairment that substantially limits one or more of the major life activities of such

individual; (B) a record of such an impairment; or (C) being regarded as having

such an impairment.” 42 U.S.C. § 12102(2) (2008). To prove that she is disabled

due to an impairment, a plaintiff must prove that the impairment, as personally

suffered by her in that particular case, substantially limits a major life activity.

Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1132 & n.3 (11th Cir. 1996)

(citing 29 C.F.R. § 1630.2(j)). A major life activity can be, inter alia, working and

walking. 29 C.F.R. § 1630.2(i) (2008); see Rossbach, 371 F.3d at 1357 (listing

major life activities).

       The pre-ADAAA EEOC regulations state:

       The term substantially limits means significantly restricted in the
       ability to perform either a class of jobs or a broad range of jobs in
       various classes as compared to the average person having comparable

                                           12
             Case: 12-11751      Date Filed: 12/07/2012    Page: 13 of 25

      training, skill and abilities. The inability to perform a single,
      particular job does not constitute a substantial limitation in the major
      life activity of working.

29 C.F.R. § 1630.2(j)(3)(i) (2008). The EEOC regulations also list the factors to

be considered in determining whether an individual’s impairment is substantially

limiting, including: “(i) [t]he nature and severity of the impairment; (ii) [t]he

duration or expected duration of the impairment; and (iii) [t]he permanent or long

term impact, or the expected permanent or long term impact of or resulting from

the impairment.” 29 C.F.R. § 1630.2(j)(2) (2008). We have held that a plaintiff

who performs “moderately below average” in a life activity is not disabled under

the ADA. See Rossbach, 371 F.3d at 1358–59.

      In Rossbach, the plaintiffs suffered from a variety of impairments, including

significant knee injuries, and one plaintiff suffered from a herniated disc and high

blood pressure. Id. at 1357–58. The plaintiffs alleged that they were limited in the

major life activities of walking, sitting, standing, and sleeping, and that they could

not perform those activities for extended periods of time. Id. at 1358–59.

However, the plaintiffs did not provide evidence that the described afflictions

were any worse than those suffered by many adults, and we held that the district

court did not err in finding that the plaintiffs were not substantially limited in the

activities of walking, sitting, standing, and sleeping. Id. at 1359.

                                           13
             Case: 12-11751     Date Filed: 12/07/2012    Page: 14 of 25

      A plaintiff may prove that she is a disabled person because the defendant

regarded her as being disabled if she

      (1) has an impairment that does not substantially limit a major life
      activity, but is treated by an employer as though it does; (2) has an
      impairment that limits a major life activity only because of others’
      attitudes towards the impairment; or (3) has no impairment
      whatsoever, but is treated by an employer as having a disability as
      recognized by the ADA.

Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 n.2 (11th Cir. 1998) (citing

29 C.F.R. § 1630.2(l)). To prevail under this theory, a plaintiff must show that the

perceived disability involved a major life activity, and that the perceived disability

is substantially limiting and significant. Sutton v. Lader, 185 F.3d 1203, 1208

(11th Cir. 1999). Because “substantially limiting” requires the plaintiff to allege

that she is unable to work in a broad class of jobs, a plaintiff alleging that she was

regarded as disabled would need to allege that her disability was regarded as

preventing her from performing a broad class of jobs. See 29 C.F.R. §

1630.2(j)(3)(i) (2008). “The mere fact that an employer is aware of an employee’s

impairment is insufficient to demonstrate that the employer regarded the employee

as disabled,” and “[a]n employee who is perceived by her employer as having only

a temporary incapacity to perform the essential functions of the job is not

perceived as ‘disabled.’” Sutton, 185 F.3d at 1209. “A temporary inability to



                                          14
             Case: 12-11751     Date Filed: 12/07/2012   Page: 15 of 25

work while recuperating from surgery is not such a permanent or long-term

impairment and does not constitute evidence of a disability covered by the [Rehab]

Act.” Id.

      As to the third element needed to establish a prima facie case, a qualified

individual is unlawfully discriminated against if the employer does not make

reasonable accommodations for the disability, unless such an accommodation

would impose an undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A)

(2008). An accommodation is “reasonable,” and, thus, required by the ADA, only

if it enables the employee to perform the essential functions of the job. Lucas v.

W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). The plaintiff bears

the burden of identifying a reasonable accommodation that would allow a

qualified individual to perform the job, and an employer is not required to

accommodate an employee in any manner in which the employee desires. Stewart

v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285–86 (11th Cir.

1997). The regulations governing the ADA provide that, to determine the

appropriate reasonable accommodation, it may be necessary for an employer “to

initiate an informal, interactive process with the qualified individual with a

disability in need of an accommodation” to identify the person’s limitations and

possible accommodations. 29 C.F.R. § 1630.2(o)(3) (2007). In Stewart, we held

                                          15
             Case: 12-11751    Date Filed: 12/07/2012   Page: 16 of 25

that there could be no liability under the ADA where the employer did not obstruct

the informal interactive process, made reasonable efforts to communicate with the

employee and to provide accommodations based on the information it possessed,

and where the employee’s actions caused the breakdown in the interactive process.

Stewart, 117 F.3d at 1287. Moreover, the employee failed to engage in the

interactive process because she did not give the employer any substantive reasons

as to why the proffered accommodations were unreasonable, but instead, simply

demanded that the employer grant her demands. Id. at 1286–87.

      We have not addressed the availability of a claim for a hostile work

environment under either the ADA or the Rehab Act. Where a plaintiff presents a

claim based on harassment by a supervisor, she must establish that: (1) she

belongs to a protected group; (2) she has been subjected to unwelcome

harassment; (3) the harassment was based on a protected characteristic; (4) the

harassment was sufficiently severe or pervasive to alter the terms and conditions

of employment and, thus, creates a discriminatorily abusive work environment;

and (5) the employer is responsible for that environment under a theory of either

direct or vicarious liability. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th

Cir. 1999) (en banc) (involving Title VII). With regard to whether the harassment

is severe or pervasive, we have held that several instances of racially derogatory

                                         16
             Case: 12-11751     Date Filed: 12/07/2012   Page: 17 of 25

slurs, extending over a period of more than two years, were too sporadic and

isolated to establish that the employers’ conduct was so objectively severe or

pervasive as to alter the terms and conditions of the plaintiff’s employment.

McCann v. Tillman, 526 F.3d 1370, 1378–79 (11th Cir. 2008). Alternatively, we

have held that 15 incidents of sexual harassment in four months were not

infrequent, and were sufficiently severe or pervasive to constitute sexual

harassment. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501,

509 (11th Cir. 2000).

      Section 12203(a) of Title 42 of the U.S. Code states: “[n]o person shall

discriminate against any individual because such individual has opposed any act or

practice made unlawful by this chapter or because such individual made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing under this chapter.” 42 U.S.C. § 12203(a) (2008). We assess ADA

retaliation claims under the same framework used for Title VII retaliation claims.

Stewart, 117 F.3d at 1287. To establish a prima facie case of retaliation, “a

plaintiff must show (1) a statutorily protected expression; (2) adverse employment

action; and (3) a causal link between the protected expression and the adverse

action.” Id. We have recognized that “[a] decision maker cannot have been

motivated to retaliate by something unknown to him.” Brungart v. BellSouth

                                          17
                Case: 12-11751   Date Filed: 12/07/2012   Page: 18 of 25

Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000). The general rule is that

close temporal proximity between the protected activity and the adverse

employment action is sufficient circumstantial evidence to create a genuine issue

of fact as to causation, except that temporal proximity alone is insufficient to

create a genuine issue of fact as to causation where it is unrebutted that the

decision maker did not have knowledge that the employee engaged in protected

activity. Id.

      Once a prima facie case of retaliation is established, the burden then shifts

to the employer to present legitimate, non-discriminatory reasons for its actions.

Stewart, 117 F.3d at 1287. If the employer offers legitimate reasons for its action,

the plaintiff must then demonstrate that the proffered explanation is a pretext for

retaliation. Id. We have refused to address a plaintiff’s retaliation claims based on

an employer’s refusal to accommodate her where the described acts “relate directly

to her ‘reasonable accommodation’ discrimination claim, not her retaliation

claim.” Id. at 1288. As discussed above, a plaintiff cannot prove that a reason is a

pretext for discrimination unless she shows both that the reason was false, and that

discrimination was the real reason. Hicks, 509 U.S. at 515, 113 S. Ct. at 2752. A

plaintiff must meet the proffered reason “head on and rebut it.” Chapman, 229

F.3d at 1030.

                                          18
              Case: 12-11751     Date Filed: 12/07/2012   Page: 19 of 25

        The pursuit and receipt of SSDI benefits does not automatically estop the

recipient from pursuing an ADA claim. Cleveland, 526 U.S. at 797, 119 S. Ct. at

1600. However, an ADA plaintiff may not ignore her SSDI contention that she

was too disabled to work, but “must explain why that SSDI contention is

consistent with her ADA claim that she could perform the essential functions of

her previous job, at least with reasonable accommodation.” Id. at 798, 119 S. Ct.

at 1600 (internal quotation marks omitted). Where the plaintiff merely applied for

but was not awarded SSDI benefits, any inconsistency in the theory of the claims

is “of the sort normally tolerated by our legal system.” Id. at 805, 129 S. Ct. at

1603.

        As an initial matter, Gilliard does not argue on appeal that the magistrate

judge erred in finding that her ADA and Rehab Act claims for monetary relief

against GDC and the individual defendants in their official capacities were barred

by the Eleventh Amendment, and, thus, she has abandoned those claims and only

her claims for prospective injunctive relief under the ADA and Rehab Act remain.

Because the Social Security Administration determined that Gilliard was not

disabled within the meaning of the Social Security Act, to the extent that she seeks

prospective relief, she is not estopped from pursuing her ADA and Rehab Act

claims.

                                           19
             Case: 12-11751     Date Filed: 12/07/2012    Page: 20 of 25

      With regard to whether Gilliard established a prima facie case of disability

discrimination, she did not present more than a scintilla of evidence establishing

that her physical or mental conditions were severe, long-term, or permanent.

Moreover, she did not provide evidence indicating that her difficulties walking,

sitting, standing, concentrating, and thinking were any worse than similar

afflictions suffered by many adults. To the contrary, she stated in her deposition

that her conditions did not affect her ability to perform her job. Further, Gilliard

was not regarded as substantially limited in a broad range of jobs, nor as having a

permanent disability, and, thus, she was not “regarded as” disabled by the

defendants. Accordingly, Gilliard was not “disabled” within the meaning of the

ADA, and she cannot establish a prima facie case with regard to her disparate

treatment or failure-to-accommodate claims. Similarly, assuming her claims of

hostile work environment are cognizable under the ADA and Rehab Act, she

could not establish that she was a member of a protected class.

      Even assuming that Gilliard established a prima facie case with regard to

her disparate-treatment claim, the defendants proffered legitimate,

nondiscriminatory reasons for her reassignment or demotion, and she failed to

establish that the reasons were false, or that the true reason was discrimination.

With regard to her failure-to-accommodate claims, Gilliard did not include her

                                          20
             Case: 12-11751     Date Filed: 12/07/2012   Page: 21 of 25

request to wear sneakers in her amended complaint, and the magistrate properly

did not consider that claim. Gilliard did not establish that her requested

accommodations of an office and a parking space were “reasonable” within the

meaning of the ADA. With regard to her request for a four-day workweek, the

defendants engaged in the interactive process and made reasonable efforts to

communicate with Gilliard and to provide accommodations based on the available

information. Gilliard caused a breakdown in that process where she failed to

provide any medical documentation outlining her work limitations or any

substantive reason explaining why the proposed alternative accommodation was

unreasonable.

      With regard to Gilliard’s hostile-work-environment claim, even assuming it

is cognizable and that she was a member of a protected group due to her alleged

disability, the alleged harassment by Smith lasted for only one week in her nearly

11-month employment with GDC, and, thus, was not sufficiently severe or

pervasive as to alter the terms and conditions of her employment. To the extent

that Gilliard argues that the incident in which she was allegedly locked in Smith’s

office also establishes a claim of hostile work environment, even assuming that the

incident constitutes actionable harassment, we conclude it was not based on a

protected characteristic, and she could not establish the third element of her claim.

                                         21
             Case: 12-11751    Date Filed: 12/07/2012   Page: 22 of 25

      Finally, with regard to Gilliard’s retaliation claims, even assuming that the

MOC or her reassignment or demotion constituted adverse employment actions,

there could be no causal connection between those actions and statutorily

protected activity because those acts occurred before she filed an EEOC charge.

With regard to the requirement that she sign in and out, and with regard to her

termination, even assuming that she could establish a prima facie case of

retaliation, she did not demonstrate that the defendants’ proffered reasons were not

the “real” reasons for those employment actions or that the real reason was

discriminatory animus against her. Accordingly, we conclude that the magistrate

judge correctly found that the defendants were entitled to summary judgment as to

Gilliard’s ADA and Rehab Act claims.

                                        III.

      Finally, Gilliard argues that Smith and Shepherd violated her right to

confidentiality under the ADA, FMLA, and Rehab Act, by failing to maintain

Gilliard’s medical information separately and leaving the files unattended on a

receptionist’s desk. Gilliard argues that Schweiger, East, and Poitevint allowed

ten people to have access to Gilliard’s medical information. Additionally, the

individual defendants intentionally failed to specify what medical information they

required, which caused Gilliard to disclose her entire medical record.

                                         22
             Case: 12-11751      Date Filed: 12/07/2012    Page: 23 of 25

      As discussed above, we review a decision to grant summary judgment de

novo, summary judgment is appropriate where there is no genuine issue as to any

material fact and the movant is entitled to judgment as a matter of law, and a mere

scintilla of evidence is insufficient to establish that a reasonable jury could find in

the non-moving party’s favor. Vessels, 408 F.3d at 767; Brooks, 446 F.3d at 1162.

The ADA restricts an employer’s ability to make medical examinations or

inquiries that relate to an applicant’s disability status. 42 U.S.C. § 12112(d)

(2008). Pursuant to § 12112(d)(4)(A) of the ADA,

      [a] covered entity shall not require a medical examination and shall
      not make inquiries of an employee as to whether such employee is an
      individual with a disability or as to the nature or severity of the
      disability, unless such examination or inquiry is shown to be
      job-related and consistent with business necessity.

42 U.S.C. § 12112(d)(4)(A).

      In Watson v. City of Miami Beach, 177 F.3d 932, 934 (11th Cir. 1999), the

appellant, a police officer, exhibited behavior issues on the job, and after an

incident at a hospital where he refused to undergo a department-wide tuberculosis

test, which required disclosing his HIV status, the department put Watson on

unpaid leave and required that he submit to a fitness-for-duty evaluation. We held

that “[i]n any case where a police department reasonably perceives an officer to be

even mildly paranoid, hostile, or oppositional, a fitness-for-duty examination is

                                          23
             Case: 12-11751     Date Filed: 12/07/2012   Page: 24 of 25

job related and consistent with business necessity.” Id. at 935. Based mainly on

the nature of Watson’s employment as an armed police officer, and his history of

apparent overreaction and paranoia, we concluded that no rational jury could find

that the City acted improperly by requiring him to undergo a fitness-for-duty

evaluation. Id.

      We have not yet addressed whether a plaintiff must be disabled to bring a

cause of action pursuant to § 12112(d)(4). Id. (declining to address the issue

because “the fitness for duty and tuberculosis examinations were job-related and

consistent with business necessity”). We have, however, held that in the context

of a medical inquiry made before an employer extended a job offer to an

individual, a plaintiff “has a private right of action under 42 U.S.C. § 12112(d)(2),

irrespective of his disability status,” but that an employee who does not have a

disability must also show damages caused by the ADA violation. Harrison v.

Benchmark Elec. Huntsville, Inc., 593 F.3d 1206, 1214, 1216–17 (11th Cir. 2010).

      Information obtained through a permissible medical inquiry regarding the

medical condition or history of an employee must be collected and maintained on

separate forms and in separate medical files. 42 U.S.C. § 12112(d)(3)(B), (4)(C)

(2008). Supervisors and managers may be informed regarding necessary

restrictions on the work or duties of the employee and necessary accommodations.

                                         24
             Case: 12-11751    Date Filed: 12/07/2012   Page: 25 of 25

42 U.S.C. § 12112(d)(3)(B)(i), (d)(4)(C) (2008). However, when an employee

voluntarily discloses information to the employer, rather than providing it to the

employer in response to a permissible inquiry or examination, the employee

cannot establish an unlawful disclosure under the ADA. Cash, 231 F.3d at

1307–08.

      Because Gilliard failed to provide more than a scintilla of evidence to

support her allegations that the defendants breached the confidentiality of her

medical records or made overly broad requests that caused her to release her entire

medical record, we conclude that the magistrate judge correctly found that the

defendants were entitled to summary judgment as to her confidentiality claims.

                                        IV.

      For the aforementioned reasons, we affirm the magistrate judge’s grant of

summary judgment in favor of the defendants.

      AFFIRMED.

BARKETT, Circuit Judge, concurs in the result.




                                         25
