                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              DEC 19, 2008
                               No. 08-11798                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                D. C. Docket No. 06-01937-CV-ORL-22-KRS

MARILYN WOODRUFF,


                                                            Plaintiff-Appellant,

                                    versus

THE SCHOOL BOARD OF SEMINOLE COUNTY, FLORIDA,

                                                           Defendant-Appellee.


                         ________________________

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

                             (December 19, 2008)

Before BIRCH, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     Appellant Marilyn Woodruff appeals the district court’s grant of summary
judgment in favor the School Board of Seminole County, Florida (“the School

Board”), in her employment discrimination suit under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12112. In her complaint, she raised claims

of: (1) retaliation; (2) hostile work environment based on disability; (3) disability

discrimination regarding her requests for reasonable accommodation in her job as

Pre-K Assistant; and (4) disability discrimination regarding her requests for

transfer to a Secretary position and other non-sedentary positions. The district

court found that Woodruff did not present a prima facie case on any of her claims

and granted summary judgment to the School Board on all claims.

      On appeal, Woodruff argues that she presented a prima facie case of

retaliation because she suffered several retaliatory acts after the School Board

received notice of her September 2005 Equal Employment Opportunity

Commission (“EEOC”) charge. Second, she argues that she presented evidence

that the School Board subjected her to a hostile work environment beginning in

September 2005. Third, she contends that the district court erred in granting

summary judgment on her disability discrimination claim because she presented

evidence that the School Board did not provide her with reasonable

accommodations in her job as Pre-K Assistant. Finally, she argues that the court

erred in grant summary judgment on her disability discrimination claim because



                                           2
she sought a transfer to a Secretary position and numerous other non-sedentary

positions and she was qualified for those positions.

                                          I.

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

the evidence and making reasonable inferences in the light most favorable to the

non-moving party. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir.

2002). Summary judgment is appropriate when the evidence, viewed in the light

most favorable to the nonmoving party, presents no genuine issue of fact and

compels judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-

23, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). Speculation or conjecture

from a party cannot create a genuine issue of material fact. Cordoba v. Dillard’s,

Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). We may affirm the district court’s

grant of summary judgment on any adequate ground supported by the record.

Smith v. Allen, 502 F.3d 1255, 1280 (11th Cir. 2007). However, when the district

court has not explicitly addressed an issue, we may choose to reverse the order and

remand so that it may address the issue in the first instance. See Beavers v. Am.

Cast Iron Pipe Co., 975 F.2d 792, 800 (11th Cir. 1992).

      “In the absence of direct evidence of discrimination, a plaintiff may establish

a prima facie case of an ADA violation through circumstantial evidence using the



                                          3
familiar burden-shifting analysis employed in Title VII employment discrimination

cases.” Wascura v. City of South Miami, 257 F.3d 1238, 1242 (11th Cir. 2001);

see generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,

36 L. Ed. 2d 668 (1973). Under this burden-shifting analysis, the plaintiff must

first establish a prima facie case, which establishes a presumption of

discrimination, and the burden shifts to the employer to articulate a legitimate, non-

discriminatory reason for the action. Cleveland v. Home Shopping Network, Inc.,

369 F.3d 1189, 1193 (11th Cir. 2004). If the employer articulates a reason, the

presumption of discrimination disappears, and the plaintiff must satisfy the

ultimate burden or showing that the employer’s reason was a pretext for intentional

discrimination. Id. This burden-shifting analysis applies equally to a retaliation

claim. Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287

(11th Cir. 1997).

      The ADA provides that “[n]o person shall discriminate against any

individual because such individual has opposed any act or practice made unlawful

by [the ADA] or because such individual made a charge . . . under the [ADA].” 42

U.S.C. § 12203(a). Previously, we have held that, in order to establish a prima

facie case of retaliation under the ADA, a plaintiff must show that: (1) she engaged

in a statutorily protected expression; (2) she suffered an adverse employment



                                          4
action; and (3) there was a causal link between the adverse action and protected

expression. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001).

We review ADA retaliation claims “under the same rubric used for Title VII

retaliation claims.” Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th

Cir. 1999).

      In Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct.

2405, 165 L. Ed. 2d 345 (2006), the Supreme Court addressed a Title VII

retaliation claim and rejected a rule that would limit the application of a retaliation

claim to only the same conduct that would be actionable in a discrimination claim.

Id., at 67, 126 S. Ct. at 2414. The Supreme Court explained that “a plaintiff must

show that a reasonable employee would have found the challenged action

materially adverse, which in this context means it well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.” Id. at

68, 126 S. Ct. at 2415. Typically, “petty slights, minor annoyances, and simply

lack of good manners” will not be considered retaliatory actions. Id.

      If a plaintiff establishes a prima facie case of retaliation, the employer must

articulate a legitimate, non-discriminatory reason for the challenged action.

Cleveland, 369 F.3d at 1193. In doing so, the employer only has the burden of

production and need not persuade the court that the proffered reasons actually



                                            5
motivated it. Wascura, 257 F.3d at 1242. If the employer carries this burden, the

plaintiff must establish that the proffered reason was pretextual.

      A plaintiff’s evidence of pretext “must reveal such weaknesses,

implausibilities, inconsistencies, incoherencies or contradictions in the employer’s

proferred legitimate reasons for its actions that a reasonable factfinder could find

them unworthy of credence.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,

771 (11th Cir. 2005). “Provided that the proferred reason is one that might

motivate a reasonable employer, an employee must meet that reason head on and

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

Evidence that an incident, relied upon by the employer, did not occur is not alone

sufficient to show pretext. Vessels, 408 F.3d at 771. A plaintiff must present

evidence that employer did not sincerely believe that the incident occurred. Id.

For example, a plaintiff may challenge the employer’s sincere belief by disputing

the employer’s testimony regarding events within the employer’s personal

knowledge. Id. Moreover, a mere “scintilla” of evidence in favor of the

non-moving party, or evidence that is merely colorable or not significantly

probative is not enough. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S. Ct.

2505, 2512, 91 L. Ed. 2d 202 (1986).

      We assume, arguendo, that the standard articulated in Burlington Northern



                                           6
applies to Woodruff’s retaliation claim and that the district court erred in failing to

use that standard to analyze her claim. Still, even though the district court did not

go beyond the prima facie case stage of analysis, we may affirm the decision based

on Woodruff’s failure to demonstrate pretext. See Cuddeback v. Florida Bd. of

Educ., 381 F.3d 1230, 1236 n.5 (11th Cir. 2004) (considering pretext in the first

instance because the record was “clear as to the final outcome” and “sufficiently

developed” to decide the issue).

      Assuming that Woodruff established a prima facie case of retaliation based

on her disability, the district court properly granted the School Board summary

judgment on the claim because she did not demonstrate pretext. The School Board

articulated the following legitimate, non-discriminatory reasons for the alleged

retaliatory actions: (1) it told Woodruff to store her wheelchair outside of the

classroom because of space and safety issues; (2) the job performance counseling

was due to legitimate complaints; (3) the misconduct write-up was in response to

complaints of actual misconduct; and (4) the table, chair, and substitute teacher

were removed in order to return her to her regular duties with accommodations.

Because the School Board articulated legitimate reasons for taking these actions,

Woodruff bore the burden of establishing that they were pretextual. Woodruff did

not introduce any evidence to demonstrate that the School Board’s reasons for



                                           7
taking these challenged actions were pretextual. Therefore, we affirm the grant of

summary judgment on this claim.

                                          II.

      The ADA prohibits discrimination in the “[t]erms, conditions or privileges

of employment.” 42 U.S.C. § 12112(a). In construing identical language in Title

VII, the Supreme Court has recognized the cognizability of such a claim under that

statute. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L.

Ed. 2d 295 (1993). In order to succeed on such a claim, the plaintiff must show

that the harassment was “sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment.” Id.

(quotation omitted). To be actionable, behavior must be both objectively hostile or

abusive, as judged by a reasonable person, and subjectively abusive to the actual

victim. Id. at 21-22, 114 S. Ct. at 370. Factors relevant to the determination of

whether a hostile work environment existed include “the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Id. at 23, 114 S. Ct. at 371.

      Assuming that such a claim is cognizable, we conclude from the record that

the district court properly found that Woodruff failed to present a prima facie case



                                           8
of hostile work environment under the ADA. The incidents that allegedly created

the hostile work environment included false accusations of inappropriate conduct

made against her, uncooperative behavior of co-workers, and skepticism regarding

her disability. Still, the evidence did not demonstrate that she was subjected to an

objectively and subjectively hostile work environment, and summary judgment in

favor of the School Board on this claim was appropriate.1

                                           III.

      The ADA prohibits discrimination against a disabled individual in regard to

employment matters. 42 U.S.C. § 12112(a). In order to prove a prima facie case

of employment discrimination under the ADA, the plaintiff must show that:

“(1) she has a disability; (2) she is a qualified individual; and (3) she was subjected

to unlawful discrimination because of her disability.” Morisky v. Broward County,

80 F.3d 445, 447 (11th Cir. 1996). A qualified individual is unlawfully

discriminated against if the employer does not reasonably accommodate the

disability. 42 U.S.C. § 12112(b)(5)(A). The ADA defines a “qualified individual

with a disability” as an individual with a disability who, with or without reasonable

accommodation, can perform the essential functions of the employment position



      1
         Because Woodruff does not challenge the district court’s related grant of summary
judgment on her constructive discharge claim, she has abandoned that issue. See Mathews v.
Crosby, 480 F.3d 1265, 1268 n.3 (11th Cir. 2007), cert. denied, 128 S. Ct. 865 (2008).

                                            9
that the individual held or desires. 42 U.S.C. § 12111(8). Accordingly, if a

plaintiff is unable to perform an essential function of her job, even with an

accommodation, she is, by definition, not a “qualified individual” covered under

the ADA. Davis v. Florida Power & Light Co., 205 F.3d 1301, 1305 (11th Cir.

2000).

         “Whether a function is essential is evaluated on a case-by-case basis by

examining a number of factors.” Id. An employer’s judgment regarding the

essential functions of a job and its written description for the job are entitled to

substantial weight, but these factors alone may not be conclusive. Id. (citing 42

U.S.C. § 12111(8)); D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1233 (11th

Cir. 2005).

         The ADA regulations provide that other factors to consider are:
         (1) the amount of time spent on the job performing the function,
         (2) the consequences of not requiring the incumbent to perform the
         function, (3) the terms of the collective bargaining agreement, (4) the
         work experience of past incumbents in the job, and (5) the current
         work experience of incumbents in similar jobs.

Davis, 205 F.3d at 1305 (citing 29 C.F.R. § 1630.2(n)(3)).

         A disabled employee only is entitled to reasonable accommodations.

42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations may include “job

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

position, acquisition or modification of equipment or devices, . . . and other similar

                                            10
accommodations.” 42 U.S.C. § 12111(9)(B). An accommodation is not

reasonable, and thus, not required, if it does not enable the employee to perform

the essential functions of her job. 29 C.F.R. § (o)(2)(ii); Lucas, 257 F.3d at 1255-

56. “While it is true that the ADA may require an employer to restructure a

particular job by altering or eliminating some of its marginal functions, employers

are not required to transform the position into another one by eliminating functions

that are essential to the nature of the job as it exists.” Lucas, 257 F.3d at 1260.

Moreover, when harm to the employee may result, an accommodation may not be

reasonable. Id. at 1260 & n.8.

       We conclude from the record that the district court did not err in granting the

School Board summary judgment on Woodruff’s claim that she was discriminated

against based on its failure to reasonably accommodate her in her job as Pre-K

Assistant. She identifies only two requested accommodations that the School

Board allegedly did not grant: permission to sit when possible and use her

wheelchair when needed.2 However, undisputed evidence showed that she was

granted these accommodations and evidence did not support her theory that



       2
         Woodruff’s vague reference to “other accommodations” not granted is not sufficient to
preserve the issue on appeal, and in any event, she waived any consideration of “other
accommodations” by failing to raise the issue in the district court. See Mathews, 480 F.3d at 1268
n.3 (abandonment); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1256 n.6 (11th Cir.
2005) (waiver).

                                               11
employees “sabotaged” her ability to take advantage of these accommodations.

Therefore, we affirm the grant of summary judgment on this claim.

                                          IV.

      As noted above, a reasonable accommodation may include reassignment to a

vacant position. 42 U.S.C. § 12111(9)(B). An employer is not required to grant an

employee a transfer to a different position if such a transfer violates a collective

bargaining agreement because such an accommodation is not reasonable. See

Kralik v. Durbin, 130 F.3d 76, 83 (11th Cir. 1997) (holding that a requested

reassignment was not reasonable because it would violate the seniority rights of

other employees). Moreover, the ADA does not require an employer to promote a

disabled employee to accommodate her. Lucas, 257 F.3d at 1256. If the testimony

from the employer indicates that a job is a promotion, and the plaintiff offers no

evidence to the contrary, there is no genuine issue of material fact. Id. at 1257.

      We conclude from the record that the district court erred, in part, in granting

the School Board’s motion for summary judgment on Woodruff’s claim regarding

her requests for transfer because, although it properly found that the failure to hire

her for the Secretary position was not discriminatory, it erred in finding that she

was not qualified for the non-sedentary positions she sought. First, although she

was qualified for the Secretary position, the School Board’s decision not to hire her



                                           12
for that position was not discriminatory because undisputed evidence showed that

it was a promotion from her position as Pre-K Assistant.

      However, evidence created a genuine issue as to whether Woodruff was

qualified for the numerous other non-sedentary positions she sought. Although

medical evidence showed that she was limited to a desk job, other evidence

showed that she could have performed the functions of the non-sedentary jobs she

sought. For example, evidence showed that she continued to work in a non-

sedentary job, the Pre-K Assistant position, without objection from the School

Board, despite doctors’ notes recommending a desk job. Other evidence showed

that the positions she sought were less physically demanding than her Pre-K

Assistant position, she thought that she could meet the physical requirements of the

new jobs she sought, and the School Board deemed her “minimally qualified” and

cleared her to interview for several of the non-sedentary positions she sought.

Therefore, we conclude that the district court erred when it found that Woodruff

did not present a prima facie case of discrimination in this regard because she was

not a qualified individual for non-sedentary positions

      Because the district court did not go beyond the prima facie phase of the

burden shifting analysis applicable to this claim, we reverse the order of summary

judgment, in part, on this claim and remand for further proceedings. Specifically,



                                         13
Woodruff’s remaining claim is that the School Board discriminated against her

based on her disability when it denied her requests for transfer to several non-

sedentary positions. We decline to consider the second two steps of the burden-

shifting analysis on this claim because the record is not sufficiently clear on the

issue to allow for its resolution on appeal.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

FOR FURTHER PROCEEDINGS.




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