           Case: 17-10391   Date Filed: 10/26/2017   Page: 1 of 19


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10391
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 3:15-cv-00491-MCR-CJK



RODERICK BILLUPS,

                                                            Plaintiff-Appellant,

                                  versus

EMERALD COAST UTILITIES AUTHORITY,

                                                           Defendant-Appellee.

                       ________________________

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

                            (October 26, 2017)

Before HULL, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Roderick Billups appeals from the district court’s grant of summary

judgment in favor of Emerald Coast Utilities Authority (“Emerald Coast”) in his

lawsuit alleging that Emerald Coast failed to provide reasonable accommodations

for his disability, in violation of the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12101 et seq., and retaliated against him for seeking worker’s

compensation benefits, in violation of the Florida Workers Compensation Law,

Fla. Stat. § 440.205. After careful review, we affirm.

                                          I.

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

“considering the facts and drawing all reasonable inferences in the light most

favorable to the non-moving party.” Melton v. Abston, 841 F.3d 1207, 1219 (11th

Cir. 2016). “Summary judgment is appropriate ‘if 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.’” Id. (quoting Fed. R. Civ. P. 56(a)).

                                         II.

      The relevant facts, in the light most favorable to Billups, are as follows.

Emerald Coast is a local governmental body that provides water, wastewater

(sewer), and sanitation collection services in and around Escambia County,

Florida’s westernmost county.      Billups began working for Emerald Coast in

September 1995.


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      At all times relevant to this lawsuit, Billups held the position of Utility

Service Technician II (“UST-2”) in Emerald Coast’s Regional Services

Department (the “Department”).         The Department is responsible for the

maintenance of all water and sewer infrastructure, including waterlines, sewer

lines, manholes, valves, and water hydrants.       As a UST-2, Billups primarily

repaired water and sewer lines and the valves and equipment on those lines.

      The UST-2 position was physically demanding. Billups routinely lifted

moderate to heavy weight and used heavy tools like jackhammers.             He also

manipulated valves, which required significant exertion.

      On December 18, 2013, Billups felt something pop in his right shoulder

while attempting to open an old air-release valve. Later that day, an examining

physician diagnosed a probable right shoulder strain and ordered an MRI. The

physician stated that Billups could not lift, push, or pull more than fifteen pounds.

At a follow-up visit on January 2, 2014, the physician prescribed physical therapy

and advised Billups to avoid lifting more than five pounds with his right arm.

With these limitations, Billups could not perform the essential functions of the

UST-2 position.

      Billups began leave under the Family and Medical Leave Act (“FMLA”) on

December 19, 2013. He expected to be able to return to work in about a month.




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By late January 2014, however, his physician had determined that conservative

treatment was unsuccessful and referred Billups to an orthopedic surgeon.

      On February 11, 2014, Billups saw the orthopedic surgeon, who scheduled

him for surgery to repair a bicep tear around a week later. The surgery had to be

rescheduled, however, because of issues with obtaining approval from Emerald

Coast’s third-party administrator for workers’ compensation benefits.           Once

Billups received approval, the surgery was rescheduled for March 14, 2014, but it

had to be called off when Billups had an adverse reaction to anesthesia. Billups’s

shoulder surgery eventually took place on April 16, 2014.

      In the meantime, Billups’s twelve weeks of FMLA leave expired on March

12, 2014, about a month before the surgery.       On March 26, 2014, Billups’s

supervisor emailed the Director of the Department, Ernest Dawson, about hiring a

temporary employee to fill in for Billups until his return. Dawson responded,

      I don’t mind your getting a temporary, but I want Human Resources
      to give me a status on this guy. I need to know about his FMLA
      status. I don’t plan to keep him. I will let him go. His record in the
      past is not good. This is his last chance with [Emerald Coast].

Thereafter, Dawson spoke with Human Resources, which reminded him that, as a

matter of Emerald Coast policy, Billups was entitled to receive twenty-six weeks




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of leave instead of twelve because he had been injured on the job.1 No action was

taken at that time.

      After Billups’s surgery in April 2014, the surgeon informed him that it

would likely take six months to recover and return to work without restriction. On

April 29, 2014, the surgeon signed a worker’s compensation form stating that

Billups could not perform job-related activities even at a sedentary level.

      The next day, April 30, Escambia County experienced a massive storm that

dropped around twenty inches of rain and caused severe flooding. According to

Dawson, the flooding caused extensive damage to Emerald Coast’s water and

sewer infrastructure, from which the Department was still recovering in December

2014. This placed considerable demands upon personnel tasked with repairing and

maintaining those facilities.




      1
          In particular, Emerald Coast’s policies provided, in relevant part,

      Employees will return to work any time they are medically able, up to six (6)
      months from the date of injury. At that point, if unable to return to work the
      employee must retire, resign, or be terminated. The department head, after
      consultation with the Human Resources Director, may extend this time based on
      evaluation of the employee’s ability to work.

      After one (1) year from the date of the injury, if the employee is continuing to
      have intermittent disability from the injury, the department head and Human
      Resources Director would review the case to determine if there is cause for
      extension of time. If there is none, the employee must retire, resign, or be
      terminated.


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      On May 27, 2014, the surgeon signed a worker’s compensation form

identifying Billups’s post-surgery restrictions as “sedentary only” and stating that

he was likely to return with no restrictions in six weeks.

      In early June 2014, Emerald Coast sent Billups notice that he would likely

be terminated due to his continuing inability to perform the essential functions of

his job with or without a reasonable accommodation. The letter stated that, as of

June 18, 2014, it would be six months since the date of his injury, and it informed

him of the policy that employees who suffer an on-the-job injury generally must

return to work within six months or retire, resign, or be terminated. The letter

stated that Billups could attend a “predetermination” hearing on June 19, 2014.

      Billups appeared at the hearing on June 19 before Dawson and Cindy

Sutherland, the Human Resources Director. Billups summarized the history of his

injury and stressed that the surgery had been delayed through no fault of his own.

He also presented some medical records, including the surgeon’s report from May

27, 2014, which reflected that he could be cleared for duty by July 15, 2014. Even

on that date, however, Billups indicated that he would have to do most work with

his arms close to his body. Sutherland noted that Billups’s next appointment was

on July 8, 2014, but that Emerald Coast had no information showing that he could

return to work full duty “today,” the date of the hearing. Sutherland also stressed

that Emerald Coast needed a release slip from his doctor before he could return to


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work. Billups was given until the end of the following day to obtain a more

definitive statement of a return date from his physician or physical therapist.

      Also at the hearing, Sutherland and Dawson asked Billups about his prior

on-the-job injuries.   Dawson noted that Billups had suffered more on-the-job

injuries than most employees. Before the events giving rise to this case, Billups

had experienced four on-the-job injuries: a thumb sprain, a left-bicep strain, an eye

injury, and a left shoulder injury. After a series of questions about the injuries,

Dawson summarized that most of the injuries were to the left part of Billups’s

body, while the recent injury was to his right. When Billups agreed, Dawson

responded, “Okay. That answered my question.”

      The next day, June 20, Billups produced a letter from his physical therapist

stating that Billups “continue[d] to progress through strengthening exercises” and

that he could return to work as a UST-2 without restrictions when he completed his

physical therapy. The letter noted, however, that only Billups’s physician could

clear him to return to work.      At that time, Billups was not projected to be

discharged from physical therapy until July 21, 2014.

      On June 23, 2014, a Monday, Billups received notice that his employment

had been terminated. The letter explained that Billups’s “continuing inability to

perform the essential requirements of [his] job, with or without accommodation,




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[created] a substantial hardship and impair[ed] [Emerald Coast’s] ability to

properly fulfill its public mission.”

      Billups continued to attend physical therapy sessions after his termination.

On July 22, 2014, his physician limited him to lifting no more than twenty pounds

overhead and advised him to complete all work with his arms close to his body.

He was discharged from physical therapy on August 13, 2014, but he was not

cleared to return to work without restrictions until October 23, 2014. Billups

received worker’s compensation benefits until October 23.

                                         III.

      Billups filed a complaint in state court against Emerald Coast, which

removed the action to federal district court. In his complaint, Billups brought two

claims. First, he alleged that Emerald Coast violated the ADA by failing to

provide a reasonable accommodation for his disability. Second, he alleged that

Emerald Coast violated the Florida Workers Compensation Law, Fla. Stat.

§ 440.205, by retaliating against him for seeking worker’s compensation benefits.

      After discovery, the district court granted summary judgment to Emerald

Coast. The court concluded, in relevant part, that Billups had not identified a

reasonable accommodation that would have allowed him to perform the essential

functions of his position, and that no reasonable jury could conclude that Billups




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was retaliated against for obtaining worker’s compensation benefits. Billups now

appeals.

                                        IV.

      The ADA prohibits employers from discriminating against “qualified

individual[s] on the basis of disability.” 42 U.S.C. § 12112(a). A “qualified

individual” is a person who, with or without reasonable accommodations, is able to

perform the essential functions of the job she holds or desires.         42 U.S.C.

§ 12111(8). To establish a prima facie case of employment discrimination under

the ADA, a plaintiff must show that he had a disability, that he was a “qualified

individual,” and that he was subjected to unlawful discrimination because of his

disability. Mazzeo v. Color Resolutions Int’l, LLC, 746 F.2d 1264, 1268 (11th Cir.

2014).

      “An employer unlawfully discriminates against a qualified individual with a

disability when the employer fails to provide ‘reasonable accommodations’ for the

disability—unless doing so would impose undue hardship on the employer.”

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001).            An

accommodation is “reasonable” only if it allows the employee to perform the job’s

essential functions.   Id.   The employee bears the burden of identifying an

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

Id.; Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000).


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       On appeal, Billups contends that Emerald Coast should have accommodated

his disability by offering a limited period of unpaid leave while he recovered from

surgery. 2 The district court did not directly address this argument. Regardless, we

affirm the district court’s grant of summary judgment because Billups has not

shown his requested accommodation would have allowed him to return to work “in

the present or in the immediate future.” Wood v. Green, 323 F.3d 1309, 1314

(11th Cir. 2003); see Lucas, 257 F.3d at 1256 (stating that we may affirm the

district court’s judgment on any grounds supported by the record).

       This Circuit has recognized that a “leave of absence might be a reasonable

accommodation in some cases.” Wood, 323 F.3d at 1314. We first addressed this

issue in Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (11th Cir. 1997), where we

held that an employer was not required to allow an employee to stay on medical

leave under a salary continuation program. See id. at 1225–26. Relying on the

Fourth Circuit’s decision in Myers v. Hose, 50 F.3d 278, 282 (4th Cir. 1995), we


       2
         Before the district court, Billups also argued that he should have been given light-duty
work or reassigned to another position as a reasonable accommodation. But he has abandoned
these issues on appeal by failing to address them in his initial brief. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (issues not raised on appeal are
abandoned). In any case, we would affirm the district court even if these issues had been
properly raised. In providing reasonable accommodations under the ADA, employers are not
required to change the essential functions of a position or to reassign an employee when no
positions are available. See Frazier-White v. Gee, 818 F.3d 1249, 1256 (11th Cir. 2016)
(“Defendant was not required by the ADA to create a permanent light-duty position especially
for Plaintiff.”); Willis v. Conopco, Inc., 108 F.3d 282, 284 (11th Cir. 1997) (stating that
reassignment is only a reasonable accommodation if a position for which the plaintiff is qualified
was available). Emerald Coast presented uncontradicted evidence that there were no open and
available light-duty positions at the relevant time.
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explained that an employer does not violate the ADA “by refusing to grant an

employee a period of time in which to cure his disabilities where the employee sets

no temporal limit on the advocated grace period, urging only that he deserves

sufficient time to ameliorate his conditions.” 120 F.3d at 1225–26 (brackets and

internal quotation marks omitted).       We quoted with approval the following

reasoning of the Myers court regarding leave as a reasonable accommodation:

      Significantly, these provisions [42 U.S.C. § 12111(8); 45 C.F.R. §
      1232.3(i)] contain no reference to a person’s future ability to perform
      the essential functions of his position. To the contrary, they are
      formulated entirely in the present tense, framing the precise issue as to
      whether an individual “can” (not “will be able to”) perform the job
      with reasonable accommodations. Nothing in the text of the
      reasonable accommodation provision requires an employer to wait for
      an indefinite period for an accommodation to achieve its intended
      effect. Rather, reasonable accommodation is by its terms most
      logically construed as that which, presently, or in the immediate
      future, enables the employee to perform the essential functions of the
      job in question.

Id. (quoting Myers, 50 F.3d at 283).

      Because the plaintiff in Duckett “had already been on medical leave for ten

months . . . and had no way of knowing when his doctor would allow him to return

to work in any capacity,” we concluded that his requested accommodation of

additional medical leave was not reasonable. See id. at 1226. Nevertheless, we

noted that more compelling facts might lead to a different result, such as “if an

employee was terminated immediately upon becoming disabled without a chance

to use his leave to recover.” Id. n.2.
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      After Duckett, we held in Wood that a plaintiff’s request for a leave of

absence to recover from cluster headaches was not reasonable. 323 F.3d at 1314.

We explained that Duckett had held “that an accommodation is unreasonable if it

does not allow someone to perform his or her job duties in the present or in the

immediate future.” Id. at 1313. Thus, “a leave of absence might be a reasonable

accommodation in some cases” if it would allow an employee to continue work “in

the immediate future.” Id. at 1314. But an accommodation is unreasonable if it

would only allow an employee to “work at some uncertain point in the future.” Id.

      Based on these standards, we held that Wood’s requested accommodation

was not reasonable because he was essentially requesting indefinite leave. Id.

Even with a leave of absence, “he could be stricken with another cluster headache

soon after his return and require another indefinite leave of absence.” Id. Thus,

Wood was not requesting an accommodation that would have allowed him to

continue to work presently, “but rather, in the future—at some indefinite time.” Id.

We also distinguished Duckett’s “parenthetical[] not[ation] that more compelling

facts might lead to a different result,” stating that Wood had not been “terminated

immediately upon becoming disabled,” but rather “had been granted years of

discretionary leave and had been on a discretionary leave for over one month at the

time of his termination.” Id.




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       Here, Billups’s situation is different from that of the plaintiffs in Wood and

Duckett because his disabling condition was temporary, not chronic.3 Cf. Wood,

323 F.3d at 1312 (fourteen-year history with cluster headaches); Duckett, 120 F.3d

at 1223–24 (ten-year history with high blood pressure). In other words, Billups’s

condition was likely to be fully corrected, or nearly so, at some point in the future.

Nevertheless, we cannot say, on this record, that the requested accommodation was

reasonable under the legal standards set out in Wood and Duckett.

       As explained above, an accommodation is unreasonable under our precedent

unless it would allow the employee to “perform the essential functions of their jobs

presently or in the immediate future.” Wood, 323 F.3d at 1314. It is undisputed

that Billups was unable to perform the essential functions of his position as of the

date of his termination.         And the record shows that Billups was essentially

requesting a leave of absence that would allow him to work “at some indefinite

point” in the future. See id.

       At the predetermination hearing on June 19, 2014, Billups did not request a

specific period of time in which to recover, nor would it have been reasonable to

expect him to. He was still participating in physical therapy and it was unclear

when he would be cleared to return to work without the limitations that rendered

       3
         We assume, as the district court did, that Billups’s temporary restrictions on lifting,
pushing, and pulling constitute a “disability” within the meaning of the ADA. See 29 C.F.R.
§ 1630.2(j)(1)(ix) (noting that an impairment lasting or expected to last less than six months can
in some circumstances qualify as a disability).
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him unable to perform the essential functions of the UST-2 position. While the

surgeon indicated in late May 2014 that Billups might be able to return in mid-

July, Billups was not scheduled to see the surgeon again until July 8.           And

according to his physical therapist, Billups was not projected to be discharged from

physical therapy until July 21, 2014. Thus, at best, there was a possibility, but no

certainty, that Billups could return to work by mid-July 2014.

      The record also shows, however, that Billups likely still would not have

been able to perform the essential functions of the UST-2 position at that time. As

Billups foreshadowed at the hearing, his physician in mid-July 2014 limited him to

lifting no more than twenty pounds overhead and advised him to complete all work

with his arms close to his body. According to Dawson, those limitations would

have prevented Billups from performing the essential functions of the UST-2

position.   Although Billups believed he could perform the job with those

limitations, his testimony reflects that he could only perform “most” of the work,

but not all of it. And even a “relative[ly] infrequen[t]” inability to perform a job’s

essential functions is enough to render a plaintiff not a “qualified individual” under

the ADA. Holbrook v. City of Alpharetta, 112 F.3d 1522, 1528 (11th Cir. 1997).

Nor would Emerald Coast have been required to “reallocate . . . an essential part of

his job” to another employee. Id.




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      Thus, Billups’s request for additional leave was essentially an open-ended

request for “sufficient time to ameliorate his conditions” following the surgery.

See Duckett, 120 F.3d at 1226. Indeed, the record shows that he continued to

attend physical therapy until August 13, 2014, and that he was not cleared to return

to work without restriction until October 23, 2014. We also note that Billups was

not “terminated immediately upon becoming disabled,” see id. at 1226 n.2, but

rather received over six months of medical leave to allow recovery. That period of

time ultimately was not sufficient, largely as a result of the surgery’s delay through

no fault of Billups’s own. Nevertheless, in light of Emerald Coast’s allowance of

six months of leave and the uncertainty about when Billups could perform the

essential functions of his position in the future, Billups has not shown that a

reasonable jury could conclude that he was denied a reasonable accommodation

that would have allowed him to perform the essential functions of his job either

presently or in the immediate future. See Wood, 323 F.3d at 1314.

      Billups’s argument that Emerald Coast applied a general rule without

conducting an “individualized assessment” of his needs is off the mark. See Holly

v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262–63 (11th Cir. 2007) (“Allowing

uniformly-applied, disability-neutral policies to trump the ADA requirement of

reasonable accommodations would utterly eviscerate that ADA requirement.”).

While Emerald Coast’s policy provides, as a general rule, six months for an


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employee who suffered an on-the-job injury to return to employment, it also

expressly incorporates an individualized assessment of the employee’s ability to

work:       “The department head, after consultation with the Human Resources

Director, may extend this time based on evaluation of the employee’s ability to

work.” In addition, at the hearing, Emerald Coast considered the specifics of his

situation and allowed him to submit medical records and other evidence. Emerald

Coast then terminated him because he could not perform the essential functions of

the position. For the reasons explained above, that decision did not violate the

ADA.

        Because we conclude that Billups was not a “qualified individual” under the

ADA, we do not address whether Emerald Coast has presented sufficient evidence

of undue hardship. We also do not address Billups’s arguments regarding pretext,

which are not, in any event, directly relevant to a reasonable-accommodation

claim. 4    See Holly, 492 F.3d at 1262 (explaining that there is no “additional

burden” to show pretext when proving a reasonable-accommodation claim).




        4
         Billups’s argument appears to be that Emerald Coast terminated him because it regarded
him as disabled based on his record of on-the-job injuries, and that its proffered reason for his
termination—his inability to perform the essential functions of the position—is pretextual. But
as he concedes, there is no requirement to provide reasonable accommodations where an
employee is only regarded as disabled, see 42 U.S.C. § 12201(h), and it is undisputed that
Billups was unable to perform the essential functions of his position at the time of his
termination. Accordingly, Billups’s regarded-as claim fails at the prima facie stage because he is
not a “qualified individual” under the ADA. See Mazzeo, 746 F.2d at 1268.
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Accordingly, we affirm the district court’s grant of summary judgment on

Billups’s ADA claim.

                                         V.

      Finally, we address Billups’s state-law claim alleging unlawful retaliation

for pursing worker’s compensation benefits. Under Fla. Stat. § 440.205, “[n]o

employer shall discharge, threaten to discharge, intimidate, or coerce any employee

by reason of such employee’s valid claim for compensation or attempt to claim

compensation under the Workers’ Compensation Law.” However, “[t]he statute

cannot be interpreted to prohibit the discharge of an employee for any reason once

the employee has filed or pursued a workers’ compensation claim.” Pericich v.

Climatrol, Inc., 523 So. 2d 684, 685 (Fla. Dist. Ct. App. 1988).

      Retaliation claims brought pursuant to § 440.205 require a plaintiff to show

the following: (1) he engaged in protected expression; (2) he suffered an adverse

employment action; (3) a causal connection exists between the expression and the

adverse action. Ortega v. Eng’g. Sys. Tech., Inc., 30 So. 3d 525, 528 (Fla. Dist. Ct.

App. 2010). Billups met the first two elements. As to the third element, for

purposes of establishing a prima facie case, the plaintiff must show that “the

protected activity and the adverse action are not completely unrelated,” which can

be satisfied through close temporal proximity. Id. at 529.




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       If the plaintiff establishes these elements as a prima facie matter, the burden

shifts to the employer to proffer a legitimate reason for the adverse employment

action. Id. At that point, the plaintiff bears the burden of showing that the

employer’s reason is pretext for retaliation. See id.

       Here, the district court properly granted the Authority’s motion for summary

judgment on Billups’s retaliation claim. First, we agree with the court that the

temporal proximity between Billups worker’s compensation claim and his

termination—over six months—was not sufficiently close to establish a causal

connection. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.

2007) (“A three to four month disparity between the statutorily protected [activity]

and the adverse employment action is not enough.”) (Title VII case).

       Second, even assuming arguendo that Billups made out a prima facie case,

he has not shown that Emerald Coast’s stated reason for his termination is

unworthy of credence. 5         While Billups’s evidence indicates that Dawson was

concerned about Billups’s record of on-the-job injuries, the record evidence is

undisputed that, at the time of his termination, and following an extended period of

medical leave, Billups simply was unable to perform the essential functions of his

job. Billups’s termination was consistent with Emerald Coast’s express policy.

       5
          The district court did not reach the issue of pretext, but the record is sufficiently
developed for us to decide the issue. See Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1236
n.5 (11th Cir. 2004) (stating that we may address the issue of pretext in the first instance if the
record is sufficiently developed).
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And on appeal Billups does not point to any comparator evidence showing that

Emerald Coast retained an employee who did not have a history of on-the-job

injuries, after six months of medical leave despite an inability to perform the

essential functions of the position.      Thus, despite Dawson’s comments about

Billups’s injuries, Billups has not “has demonstrated 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.” See Ortega, 30 So. 3d at 529 (quotation marks

omitted). Accordingly, we affirm the district court’s grant of summary judgment

on Billups’s retaliation claim.

                                          VI.

      For the reasons stated, the district court properly granted summary judgment

in favor of Emerald Coast on Billups’s claims of discrimination in violation of the

ADA and retaliation in violation of the Florida Workers Compensation Law.

      We therefore AFFIRM the judgment of the district court.




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