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                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11605
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:13-cv-01847-TWT



KIRK MEDEARIS,

                                                       Plaintiff-Appellant,

                                 versus

CVS PHARMACY, INC.,

                                                      Defendant-Appellee.



                       ________________________

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

                              (April 1, 2016)

Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Kirk Medearis, an African-American man with rheumatoid arthritis, appeals

the district court’s grant of summary judgment to his former employer, CVS

Pharmacy, Inc. (“CVS”). Medearis’s complaint alleged a claim against CVS under

the Americans with Disabilities Act (“ADA”), a Title VII race discrimination

claim, and a Title VII constructive discharge claim. On appeal, Medearis argues

that the district court erred in granting CVS summary judgment on each of the

three claims. Upon review of the record and consideration of the parties’ briefs,

we affirm.

                                    I. BACKGROUND

       Medearis worked for CVS from September 1999 to September 2012.1 In

2011 he became a store manager at a CVS store in Atlanta. He characterized the

store manager’s duties as “rally[ing] the troops” and being on call if anything was

required at the store. Medearis described needing to lift, bend, and squat as a part

of his job. At times he would spend the entire day unloading a truck of

merchandise, carrying it up the steps, and stocking shelves. When his store’s total

allowable employee hours were reduced, Medearis was obliged to work up to 70

hours a week. During that time he would vacuum, mop, clean the store, and lift

more than 10 pounds.



       1
         In reviewing the district court’s grant of summary judgment, we recount the facts in the
light most favorable to Medearis. See infra section II.

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      In October 2011, Medearis sent an email to CVS’s District Manager Neal

Lindler and Human Resources Business Partner Bob Henderson requesting,

because of his rheumatoid arthritis, 50 extra allowable employee hours per week, a

palletized delivery truck, and a flexible work schedule. Henderson responded by

email the next day, telling Medearis to call the corporate office to make this

request, and then CVS would “engage in an active accommodation process to see

what we can and cannot accommodate,” and that CVS “welcome[s] the process per

the [ADA] guidelines.” Pl.’s Ex. 3, Doc. 53-24.2 Medearis provided CVS with a

note from his doctor recommending “light duty” and frequent breaks. Pl.’s Ex. 6,

Doc. 53-27. The doctor specified that Medearis could not lift more than 10 pounds

for six weeks.

      Henderson told Lindler to inform Medearis “that he needs to apply for LOA

[leave of absence] immediately, [t]hen we can see if we can accommodate the

restrictions. But 10 lbs as a store manager [we] would not be able to

accommodate. Therefore he needs to be on Full LOA until his restrictions are

applicable.” Pl.’s Ex. 7, Doc. 53-28. Henderson later explained to Medearis:

“[E]ven the restriction of no lifting over 10 lbs I couldn’t guarantee that we could

accommodate in a [store] manager position. We have many items that exceed this




      2
          “Doc.” refers to the docket entry in the district court record in this case.

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limit and didn’t want you to be noncompliant with your Dr. order and trying to

help a customer.” Pl.’s Ex. 9, Doc. 53-30.

       Medearis began a period of leave on October 18, 2011. Medearis’s doctor

provided CVS with a completed reasonable accommodation questionnaire form,

explaining that Medearis should work only part-time with frequent rest periods, lift

no more than 10 pounds, and stand for no more than 30 minutes at a time.

Medearis returned to work on November 29, 2011 with another doctor’s note

requiring that he lift no more than 15 pounds, stand no more than four hours at a

time, and take breaks as needed.3

       In January 2012, Medearis filed an internal complaint with David Purdy,

CVS’s Area Vice President, alleging harassment based on his disability and race.

Specifically, Medearis asserted that Lindler and other CVS officers cut his

operating hours at his store, treated him with hostility on conference calls, and

issued him a written warning based on a fabricated story. CVS investigated the

complaint, but Medearis contends that the investigation was inadequate. He

testified that, when he spoke to Lindler about his complaints, Lindler laughed in

his face. Medearis also testified that Lindler threatened to fire him within a year.

       Medearis then made another internal complaint to CVS and requested a

second leave of absence from March 10, 2012 through April 13, 2012. On April 6,
       3
         Neither party argues that the distinction between 10 and 15 pounds is a meaningful one
in terms of a store manager’s essential functions.

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2012, Medearis sent Lindler an email stating he “will not be able to return to work

at this time,” and in September of 2012, Medearis resigned via email. Def.’s Ex.

13 at 2, Doc. 52-1.

      Medearis filed a complaint against CVS in federal district court, alleging

discrimination based on disability and race. In his deposition, another CVS store

manager, Jihad Jomaa, identified a job description for a CVS store manager, which

contained a physical requirement of the “[a]bility to lift 35 pound trays/cases to [a]

height of 4 feet and move trays/cases from one location to another in the store;

ability to bend and squat frequently to move/locate merchandise.” Pl.’s Ex. Jomaa

1 at 2, Doc. 51-1. Jomaa confirmed that regularly unloading trucks with

merchandise weighing more than ten pounds was “part of [his] duties.” Jomaa

Dep. At 5, Doc. 51. Jomaa testified that a store manager could perform his or her

duties without lifting more than 10 pounds, but the store would require additional

staffing to perform the lifting otherwise performed by the store manager.

      After discovery, CVS filed a motion for summary judgment. In his response

to the motion for summary judgment, Medearis submitted the same job

descriptions as CVS, as well as additional CVS store manager job descriptions that

declined to specify weight-lifting requirements.

      A magistrate judge issued a Report and Recommendation, recommending

that the district court grant CVS’s motion for summary judgment as to all claims.


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The district court adopted the Report and Recommendation in its entirety and

granted summary judgement in favor of CVS. Medearis now appeals the summary

judgment order.

                          II. STANDARD OF REVIEW

      We review a grant of summary judgment de novo. Holly v. Clairson Indus.

L.C.C., 492 F.3d 1247, 1255 (11th Cir. 2007). Summary judgment is appropriate

if, drawing all reasonable inferences in favor of the nonmoving party, the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A genuine issue of

material fact does not exist unless there is sufficient evidence favoring the

nonmoving party for a reasonable jury to return a verdict in its favor.” Chapman v.

AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (internal quotation

marks omitted). Moreover, mere conclusions, unsupported factual allegations, and

statements that are based on belief, as opposed to personal knowledge, are

insufficient to overcome a summary judgment motion. Ellis v. England, 432 F.3d

1321, 1327 (11th Cir. 2005).

                                 III. DISCUSSION

A. ADA Claim

      The ADA mandates that employers shall not discriminate against “a

qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). To establish


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a prima facie case of discrimination under the ADA, a plaintiff must show he: (1)

has a disability; (2) is a qualified individual; and (3) was subjected to unlawful

discrimination because of the disability. Holly, 492 F.3d at 1255-56. It is

undisputed that Medearis was disabled within the meaning of the ADA. Rather,

CVS contested the second prong of Medearis’s prima facie case.

      Under the ADA, a qualified individual is an “individual who, with or

without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).

An accommodation is reasonable and necessary under the ADA “only if it enables

the employee to perform the essential functions of the job.” Holly, 492 F.3d at

1256. The ADA does not require an employer to eliminate essential functions of

the job, however; if an individual is unable to perform them, even with the

accommodation, she cannot meet the definition of qualified. Id. at 1256-57.

      We evaluate whether a function is essential—a fundamental duty of the

“position that an individual with a disability is actually required to perform”—on a

case-by-case basis. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000);

see Holly, 492 F.3d at 1258. We accord substantial weight to the employer’s

judgment as to which functions are essential. Holly, 492 F.3d at 1258. We may

consider additional factors such as written job descriptions prepared for

interviewing applicants. 29 C.F.R. § 1630.2(n)(3).


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      Discrimination under the ADA includes “not making reasonable

accommodations to the known physical . . . limitations of an otherwise qualified

individual with a disability who is an . . . employee, unless such covered entity can

demonstrate that the accommodation would impose an undue hardship on the

operation of the business.” 42 U.S.C. § 12112(b)(5)(A). The burden is on the

plaintiff to identify a reasonable accommodation the employer should have made.

Terrell v. USAir, 132 F.3d 621, 624 (11th Cir. 1998). Nonetheless, an employer is

not required to give an employee his choice of accommodation. Earl, 207 F.3d at

1367. And, although reasonable accommodations may include job restructuring,

part-time hours, or reassignment to a vacant position, an employer is not required

to create and fund a position as an accommodation, nor must an employer

reallocate job duties that would alter the essential function of a job. 42 U.S.C.

§ 12111(9); Earl, 207 F.3d at 1367; Terrell, 132 F.3d at 626.

      The district court properly granted summary judgment in favor of CVS on

Medearis’s ADA claim. We agree with the district court that Medearis failed to

demonstrate that he could perform the “essential functions” of his job, which

included the ability to lift more than 10 pounds, with or without a reasonable

accommodation. See 42 U.S.C. § 12111(8). Medearis acknowledged that his job

required him to unload trucks and stock shelves on a regular basis. On some

occasions, Medearis unloaded deliveries for hours a day, up to an entire day,


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meaning that a substantial number of another employee’s hours would be required

to perform Medearis’s duties if he were unable to perform them himself. And

Jomaa, a fellow store manager, testified that he had to lift more than 10 pounds

every day.

      Moreover, the CVS store manager job descriptions entered into evidence

support Medearis’s own testimony that lifting was a regular requirement of his job.

Because these written descriptions are evidence of the employer’s judgment

regarding which functions of a job are essential, we must give them substantial

weight. See 42 U.S.C. § 12111(8); Holly, 492 F.3d at 1258. The job description

introduced during Jomaa’s deposition stated that a CVS store manager was

required to have the “ability to lift 35 pound tray/cases to a height of four feet and

move trays/cases from one location to another in the store; [and the] ability to bend

and squat frequently.” Pl.’s Ex. Jomaa 1 at 2, Doc. 51-1. Even those job postings

for store managers that Medearis submitted, which were not so specific, included

physical activities such as stocking shelves or loading and unloading deliveries.

Simply because the occasional job posting for store managers lacked specific

physical requirements does not mean that physical requirements were not an

essential function of the job.

      The evidence consistently described the store manager position as one

requiring the lifting of items from floor to shelf, including weighty items.


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Accordingly, Medearis failed to provide evidence sufficient to create a genuine

dispute as to the material issue of fact that it is an essential function of a store

manager’s job to lift more than 10 pounds. Viewing the evidence—Medearis’s

own statements, the testimony of another store manager, and the written job

descriptions themselves—in the light most favorable to Medearis, while also

giving substantial weight to the employer’s judgment as to which functions were

essential, Holly, 492 F.3d at 1258, the district court did not err in granting

summary judgment on this claim.

      Further, it was Medearis’s burden to identify an available reasonable

accommodation that would allow him to perform his job’s essential functions and

then establish that CVS denied him this accommodation. See Terrell, 132 F.3d at

624. Medearis’s requested accommodation of lifting no more than 10 pounds was

unreasonable because such an accommodation would have required that CVS

eliminate an essential function of his job. See Holly, 492 F.3d at 1256; Terrell, 132

F.3d at 626. Additionally, Medearis’s request for an additional 50 allowable

employee hours to help with his duties was an unreasonable accommodation

because CVS would be required to add more employee hours for the sole purpose

of completing Medearis’s essential functions. An employer is required neither to

create and fund a position as an accommodation nor to re-allocate job duties in

order to change an essential function. Earl, 207 F.3d at 1367; Terrell, 132 F.3d at


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624. Medearis thus failed to meet his burden of showing his request for 50

allowable employee hours was a reasonable accommodation.

         Medearis was not a qualified individual within the meaning of the ADA

because he was unable to perform the essential functions of a store manager

position with or without a reasonable accommodation. See 42 U.S.C. § 12111(8).

He has failed to create a disputed material issue of fact that the essential job

functions do not include lifting more than 10 pounds. Accordingly, the district

court properly granted summary judgment on Medearis’s ADA claim in CVS’s

favor.

B. Title VII Race Discrimination Claim

         Under Title VII, it is unlawful for an employer “to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). “On any Title VII

claim the plaintiff bears the ultimate burden of proving discriminatory treatment by

a preponderance of the evidence.” Crawford v. Carroll, 529 F.3d 961, 975 (11th

Cir. 2008) (internal quotation marks omitted).

         When a Title VII claim is supported by circumstantial evidence, the district

court analyzes the case using the burden-shifting framework set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). McCann v. Tillman, 526 F.3d 1370,


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1373 (11th Cir. 2008). Under McDonnell Douglas, the plaintiff has the initial

burden to establish a prima facie case of disparate treatment by showing that: (1)

he is a member of a protected class; (2) he was subjected to adverse employment

action; (3) his employer treated similarly situated employees outside of his class

more favorably; and (4) he was qualified to do the job. Id. If the plaintiff presents

a prima facie case, and the employer offers a legitimate, non-discriminatory reason

for the adverse employment action, the plaintiff must show that the stated reason is

a mere pretext for unlawful discrimination. Id.

      As an initial matter, it is undisputed that Medearis, an African-American,

belongs to a protected class and was qualified for his position as store manager.

The determinative issue here is whether Medearis experienced an adverse

employment action. See id. Medearis asserts that he suffered adverse employment

actions when Lindler and other CVS officials provided Medearis’s store with fewer

allowable employee hours, gave him written reprimands, laughed at him, and

threatened to fire him within a year.

      To qualify as an adverse employment action, an employer’s conduct that

falls short of “an ultimate employment decision, must, in some substantial way,

alter the employee’s compensation, terms, conditions, or privileges of employment,

deprive him or her of employment opportunities, or adversely affect his or her

status as an employee.” Crawford, 529 F.3d at 970 (alterations and internal


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quotation marks omitted). Specifically, a Title VII claim requires the employee to

establish that he experienced “a serious and material change in the terms,

conditions, or privileges of employment.” Davis v. Town of Lake Park, Fla., 245

F.3d 1232, 1239 (11th Cir. 2001).

      In Davis, we affirmed a defendant’s motion for judgment as a matter of law

in a Title VII claim where the employee received two job performance memoranda

harshly criticizing his performance that were placed in his personnel file. Id. at

1235-36. Although the employee received criticism and had his Officer-in-Charge

designation removed, he “did not suffer any reduction in salary, loss of benefits

[or] denial of promotions . . . as a result of these instances.” Id. at 1236. We

affirmed on the ground that there was no adverse employment action to sustain a

Title VII claim. Id. at 1246.

      Title VII, we noted, does not demand proof of direct economic

consequences. The claimed impact of the discrimination “cannot be speculative

and must at least have a tangible adverse effect on the plaintiff’s employment”

when “viewed by a reasonable person in the circumstances,” regardless of the

employee’s subjective view. Id. Federal courts do not sit as “super-personnel

department[s]” that reexamine an employer’s business decisions. Id. at 1244

(internal quotation marks omitted). A Title VII claim based on a work assignment

“strike[s] at the very heart of an employer’s business judgment and expertise


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because [it] challenge[s] an employer’s ability to allocate its assets in response to

shifting and competing market priorities.” Id. Job performance memoranda that

trigger no more tangible form of adverse action are treated as nonactionable under

Title VII. Id. at 1241.

      Here, the district court properly granted summary judgment to CVS because

the evidence showed that Medearis suffered no adverse employment action.

Medearis received several written reprimands, but unlike in Davis, these “write-

ups” were not even made part of his personnel file. Medearis offered no evidence

demonstrating that he experienced a tangible consequence such as a loss of pay or

benefits, further discipline, or denial of a promotion based on these reprimands. Id.

at 1239. Further, any reduction in store hours was “at the very heart of” CVS’s

business judgment and expertise because it challenged the company’s ability to

“allocate its assets in response to shifting and competing market priorities.” Id. at

1244. Thus, Medearis cannot show he suffered an adverse employment action to

support a Title VII discrimination claim.

C. Title VII Constructive Discharge

      Medearis contends that, based on his race, CVS constructively discharged

him when Lindler and other CVS officials created an unendurable work

environment through harassment and the allocation of fewer allowable employee

hours to Medearis’s store. “Constructive discharge occurs when an employer


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deliberately makes an employee's working conditions intolerable and thereby

forces him to quit his job.” Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009)

(internal quotation marks omitted). To make a constructive discharge claim under

Title VII, an employee must demonstrate that his work environment and

employment conditions were so unbearable that a reasonable person in the same

position would have felt compelled to resign. Poole v. Country Club of Columbus,

Inc., 129 F.3d 551, 553 (11th Cir. 1997). “The standard for proving constructive

discharge is higher than the standard for proving a hostile work environment.”

Hipp v. Liberty Nat’l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001).

       Hipp guides us in determining what constitutes a hostile work environment.

In Hipp, an employee claimed that he was harassed by two regional vice presidents

until he felt forced to resign. Id. at 1232. The employee alleged that he was

verbally attacked in multiple public incidents and was informed that he should quit

if he was unable to do his job. Id. at 1233. He was also told that he was doing a

“lousy job” and that he was a terrible district manager. Id. We concluded that the

behavior of the regional vice presidents did not rise to the level of a constructive

discharge under the ADEA. 4 Id. at 1237.



       4
         The standard for constructive discharge is the same in both the Title VII and ADEA
contexts. See Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1282 (11th Cir. 2003)
(citing Hipp in a Title VII constructive discharge case).


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      The district court properly granted summary judgment in this case because,

viewing the evidence in Medearis’s favor, Medearis failed as a matter of law to

establish that the conduct by Lindler and other CVS officials met the level of

severity required to sustain his constructive discharge claim. Similarly to Hipp,

where the employee was told he was doing a “lousy job,” Medearis had to suffer

Lindler’s laughing at his complaints and was told once that he would be fired

within a year. Title VII does not protect employees from stressful workplace

environments. “While we might disagree with the behavior of [Lindler and other

CVS officials], we cannot find that it rises to the level of constructive discharge.”

Id. at 1233. Lindler’s actions failed to rise to the level of severity or pervasiveness

that a reasonable person would be compelled to resign. Id. at 1235. Accordingly,

the district court did not err in granting summary judgment on Medearis’s

constructive discharge claim.

                                IV. CONCLUSION

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment on each of Medearis’s claims.

      AFFIRMED.




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