            Case: 14-11287   Date Filed: 10/23/2014   Page: 1 of 10


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 14-11287
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 6:12-cv-01562-JA-KRS



CYNTHIA LOUISE RABB,

                                                             Plaintiff-Appellant,

                                   versus

THE SCHOOL BOARD OF ORANGE
COUNTY, FLORIDA,
d.b.a. Orange County Public Schools,

                                                            Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                       ________________________
                             (October 23, 2014)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
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       Cynthia Rabb appeals the grant of summary judgment in favor of her former

employer, the School Board of Orange County, Florida (“School Board”), in her

employment discrimination suit filed pursuant to the Americans with Disabilities

Act (“ADA”), 42 U.S.C. § 12112(a), and the Florida Civil Rights Act (“FCRA”),

Fla. Stat. § 760.10(1). Rabb, who suffers from aphasia and reduced physical

stamina as a result of a stroke, alleged that the School Board failed to reasonably

accommodate her disability by offering her a part-time teaching position. The

district court granted summary judgment to the School Board because, although

Rabb was disabled, she had failed to present evidence that she was a “qualified

individual” under the ADA or the FCRA. After review, we affirm. 1

                          I. GENERAL ADA PRINCIPLES

       The ADA prohibits employers from discriminating against “a qualified

individual on the basis of disability.” 42 U.S.C. § 12112(a). 2 Discrimination

under the ADA includes the failure to make a reasonable accommodation to the

known physical or mental limitations of the individual. Id. § 12112(b)(5)(A);

Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1262 (11th Cir. 2007) (explaining

       1
         We review a grant of summary judgment de novo, construing the facts and drawing all
reasonable inferences in favor of the nonmoving party. Holly v. Clairson Indus., LLC, 492 F.3d
1247, 1255 (11th Cir. 2007). Summary judgment is appropriate only “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.” Fed. R. Civ. P. 56(a).
       2
        Because disability discrimination claims under the FCRA are analyzed under the same
standards as ADA claims, our reasoning with respect to Rabb’s ADA claim applies equally to
her FCRA claim. See Holly, 492 F.3d at 1255.
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that “an employer’s failure to reasonably accommodate a disabled individual itself

constitutes discrimination under the ADA, so long as that individual is ‘otherwise

qualified,’ and unless the employer can show undue hardship”).

      To establish a prima facie case of discrimination under the ADA, a plaintiff

must show: (1) she is disabled; (2) she is a qualified individual; and (3) she was

subjected to unlawful discrimination because of her disability. Id. at 1255-56. In

the district court, the parties agreed that Rabb was disabled, but contested the

second and third elements of the prima facie case.

      A qualified individual is one “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). In other words, the

plaintiff must show that she “can perform the essential functions of [her] job

without accommodation, or, failing that, show that [she] can perform the essential

functions of [her] job with a reasonable accommodation.” Davis v. Fla. Power &

Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000). If the plaintiff cannot perform

the essential functions of her job even with an accommodation, by definition she is

not a qualified individual under the ADA. Id.

      The plaintiff bears the burden both to identify an accommodation and show

that it is reasonable. Willis v. Conopco, Inc., 108 F.3d 282, 284-86 (11th Cir.

1997). Once the plaintiff has met her burden of proving that reasonable


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accommodations exist, the defendant-employer may present evidence that the

plaintiff’s requested accommodation imposes an undue hardship on the employer.

Id. at 286 (explaining that undue hardship is an affirmative defense, but that

evidence of whether an accommodation is reasonable will often also bear on

whether the accommodation poses an undue burden on the employer).

      Accommodations are “modifications or adjustments to the work

environment, or to the manner or circumstances under which the position . . . is

customarily performed . . . .” 29 C.F.R. § 1630.2(o)(1)(ii). The ADA, however,

does not require an employer to accommodate an employee in the manner she

desires, so long as the accommodation it provides is reasonable. Stewart v. Happy

Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997). An

employer also is “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

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

      A reasonable accommodation “may include . . . job restructuring; part-time

or modified work schedules; [or] reassignment to a vacant position . . . .” 42

U.S.C. § 12111(9) (emphasis added); see also 29 C.F.R. § 1630.2(o)(2)(ii). The

fact that both the statute and regulations list part-time work “as a potential

reasonable accommodation” does not mean “part-time work is always a reasonable

accommodation.” Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998). Rather,


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“[w]hether an accommodation is reasonable depends on specific circumstances,”

and “[i]n a specific situation, part-time employment may or may not be

reasonable.” Id. Further, while part-time work may be reasonable if the employer

has part-time positions “readily available,” there is no duty to create a part-time

position where the employer has eliminated part-time positions. Id. at 626-27

(“Whether a company will staff itself with part-time workers, full-time workers, or

a mix of both is a core management policy with which the ADA was not intended

to interfere.”); see also Willis, 108 F.3d at 284, 286 (stating that reassignment to a

new position is required as a reasonable accommodation only if there is an

available, vacant position and concluding that the plaintiff presented no evidence

of the existence of any vacant positions).

                II. ESSENTIAL FUNCTIONS OF RABB’S JOB

      In Rabb’s case, there is no dispute that, without accommodation, Rabb could

not perform the essential functions of her position as a full-time fifth grade teacher

at Winegard Elementary School (“Winegard”). Specifically, according to her job

description, Rabb was required, as a full-time teacher, to be able to communicate

effectively both orally and in writing, to manage a classroom and supervise the

students, to work 196 days a year, seven and a half hours a day, in the classroom,

and to stay after school to prepare lesson plans, grade homework, and conduct

parent conferences. Rabb had suffered two earlier strokes, but was able to return


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to full-time teaching after each one. After her third stroke in December 2008,

however, Rabb’s aphasia and other physical impairments prevented her from

teaching a full classroom of students or from teaching for a full day. 3 Rabb’s

doctor released her to work part time, twenty hours a week, with small groups of

up to six children in sessions limited to one hour. In short, the parties agree that

Rabb was no longer able be a full-time classroom teacher.

       Because Rabb does not dispute that she could not perform the essential

functions of her full-time teaching position without accommodation, the issue on

appeal is whether Rabb presented evidence of a reasonable accommodation that

would enable her to perform the essential functions.

           III. RABB’S REASONABLE ACCOMMODATION CLAIM

       Rabb contends that allowing her to work part-time was a reasonable

accommodation. As evidence, Rabb points to the fact that she worked as a part-

time tutor at Winegard for over two years after her third stroke.

       The problem for Rabb is that it is undisputed this part-time tutoring position

was created solely for her benefit while she rehabilitated, was not considered

permanent, and had to be eliminated for the 2011 – 2012 school year due to budget


       3
         Rabb explained that with aphasia, she knew what she wanted to say, but could not
always verbalize her thoughts correctly and had to take time to find the right words. As a result,
Rabb said that she risked losing her students’ attention or conveying the incorrect information.
To properly present a lesson to a full class, Rabb would have had to do more preparatory work,
practicing the words ahead of time. Rabb agreed that she did not have the energy to do this for
all the subjects a full-time teacher would have to teach each day.
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constraints. Specifically, in the 2009 – 2010 school year, Rabb, on the advice of

her doctor, began volunteering at Winegard, doing part-time administrative work.

During this time, Winegard’s then-principal, Dr. Ella Thompson, learned that Rabb

was experiencing financial hardship and tried to find paid work for her. Dr.

Thompson was able to use a portion of some Title I funds Winegard received that

school year from the federal government to pay Rabb to tutor students on a part-

time basis as an Instructional Resource Teacher. In this position, Rabb worked

about four hours a day, three days a week, tutoring small groups of students in

preparation for test assessments. Each tutoring session lasted twenty to thirty

minutes, with breaks in between sessions.

      Ordinarily, Winegard’s Instructional Resource Teachers were full-time

positions that involved numerous duties, not the limited, small-group tutoring Rabb

performed. Further, Winegard historically used tutors from temporary

employment services to perform that kind of tutoring. Indeed, while Rabb worked

at Winegard, there were no other part-time teachers at all. Dr. Thompson

explained that she hoped Rabb would recover with rehabilitation and return to full-

time teaching and never promised Rabb that the part-time tutoring position would

be permanent.

      Rabb continued in this part-time position for the 2010 – 2011 school year,

during which Dr. Jhunu Mohopatra became Winegard’s principal. Dr. Mohopatra


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explained that Dr. Thompson’s school budget, which had funded Rabb’s position,

resulted in an overfunding to Winegard in excess of $300,000. In preparing the

new budget for the 2011 – 2012 school year, Dr. Mohopatra had to repay the

overfunding to the school district and to staff the school in compliance with state-

mandated class-size requirements. As a result, Dr. Mohopatra could not fund

Rabb’s part-time tutoring position because it did not impact class size. 4

       Dr. Mohopatra explained the situation to Rabb and offered her a full-time

fifth grade teaching position with a class of advanced students that would present

less academic and disciplinary challenges. As an alternative, Dr. Mohopatra

offered Rabb the option to have her name placed on a list for reassignment to

another school that might have an available part-time teaching position. Rabb’s

doctor then advised Winegard that, while working at Winegard had been

therapeutic for Rabb, transferring her to another school where people did not know

her or respect her condition was “ill-advised medically.” 5


       4
         In the district court, Rabb did not present any evidence to dispute Dr. Mohopatra’s
explanation that she eliminated Rabb’s part-time tutoring position due to budget constraints.
Rather, citing the school district’s website, Rabb argued that because the School Board’s general
fund budget increased by $80,000 for the 2011 – 2012 school year, a reasonable inference could
be drawn that budget concerns “may not have been the reason for Defendant’s failure to make
reasonable accommodations . . . .” This general fund budget information does not address, much
less dispute, Dr. Mohopatra’s testimony that Winegard had to repay an overfunding to the School
Board and that she eliminated Rabb’s position in an effort to balance Winegard’s own budget
and, more importantly, does not create a genuine issue of material fact as to whether Winegard
had an available, part-time teaching position in the 2010 – 2011 school year.
       5
        The School Board’s ADA coordinator and Rabb’s union representative discussed finding
another position for Rabb within her doctor’s restrictions, but no position was found. Rabb
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       In other words, the only accommodation Rabb identified was a part-time

teaching position at Winegard, yet she failed to present any evidence that a part-

time teaching position was available at Winegard. Indeed, it is undisputed that

Winegard generally did not employ part-time teachers. Under this circuit’s

precedent, a part-time position that does not exist is not a “reasonable”

accommodation because the ADA imposes no duty on the employer to create a

part-time position to accommodate an employee’s disability. See Terrell, 132 F.3d

at 626-27 (concluding that a requested part-time position was not a reasonable

accommodation where the employer already had eliminated all part-time

positions).

       Furthermore, the fact that Winegard specially created (and was able to fund

for two years) a part-time tutoring position for Rabb in the hope that she would

recover enough to be able to return to full-time teaching does not prove that Rabb’s

requested accommodation was reasonable. “Prior accommodations do not make an

accommodation reasonable.” Wood v. Green, 323 F.3d 1309, 1314 (11th Cir.

2003) (concluding that a request for an indefinite leave of absence to recover from

cluster headaches was not a reasonable accommodation although employer had

ultimately resigned her position to seek disability benefits. To the extent Rabb contends her
employer failed to engage in an interactive process with her to identify other potential
accommodations, we have concluded that “where a plaintiff cannot demonstrate ‘reasonable
accommodation,’ the employer’s lack of investigation into reasonable accommodation is
unimportant.” Willis, 108 F.3d at 285. Because Rabb failed to meet her burden to show that a
reasonable accommodation could have been made, we do not address the School Board’s efforts
to find some other accommodation. See Lucas, 257 F.3d at 1256 n.2.
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previously granted such requests). As we have explained, “[a]n employer that

bends over backwards to accommodate a disabled worker . . . must not be punished

for its generosity by being deemed to have conceded the reasonableness of so far-

reaching an accommodation.” Terrell, 132 F.3d at 626 n.6 (quotation marks

omitted); see also Lucas, 257 F.3d at 1257 n.3 (“Good deeds ought not be

punished, and an employer who goes beyond the demands of the law to help a

disabled employee incurs no legal obligation to continue doing so.”) Under the

specific facts of this case, requiring the School Board to continue to fund the

temporary, part-time tutoring position or to create another part-time teaching

position at Winegard would not be reasonable.

       Given that Rabb failed to present evidence that her proposed

accommodation was reasonable, she did not establish her prima facie case. See

Terrell, 132 F.3d at 626; Willis, 108 F.3d at 284-86. Accordingly, the district court

properly granted the School Board’s motion for summary judgment. 6

       AFFIRMED.




       6
        The School Board’s motion to strike Rabb’s brief and for sanctions pursuant to 28
U.S.C. § 1927 and Federal Rule of Appellate Procedure 38 is denied.
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