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                                                        [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-12749
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:11-cv-23550-EGT



MICHAEL DUBLE,

                                                          Plaintiff-Appellant,

                                versus

FEDEX GROUND PACKAGE SYSTEM, INC.,

                                                        Defendant-Appellee,

FEDERAL EXPRESS CORPORATION,

                                                                   Defendant.

                     ________________________

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

                            (July 24, 2014)
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Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:
     Michael Duble appeals the magistrate judge’s order granting summary

judgment to FedEx Ground System Inc. (“FedEx”), in an action alleging disability

discrimination and retaliation. We affirm.

                               I. BACKGROUND

      Duble worked as a Service Manager for FedEx at one of its facilities in

Miami, Florida, from September 1997 to November 2009. His specific

responsibilities included pickup and delivery (“P&D”), preload, and outbound

duties, which would change depending on FedEx’s business needs. In September

2006, Duble was diagnosed with multiple sclerosis (“MS”).

      In March 2007, Duble began working as a P&D service manager.

Thereafter, the District Managing Director, George Crosby, issued a mandate for a

service manager to be outside each station’s entrance gate to speak to returning

contractor drivers about any packages not delivered to ensure they were held

accountable. This procedure is known as the “gatekeeper” function. R. at 1341,

3323-24, 3770. Duble was assigned the gatekeeper function in February 2008 and

performed his duties until April 2008.

      On April 11, 2008, Duble told his supervisor he was completely exhausted

and could not perform the gatekeeper function. Duble then went to Senior

Manager Bryon Martinez to explain he could not go outside that day because heat
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affects his MS. Human Resources (“HR”) then became involved. Senior HR

Representative Esperanza Cruz met with Duble and completed a Reasonable

Accommodation Form (“HREA form”). Duble reported he “is not allowed to get

overheated [and] [c]an’t be under the sun or heat.” R. at 1344, 3770. Duble’s

suggested accommodation was for someone else to perform the gatekeeper

function between 4:30 p.m. and 8:00 p.m. At Cruz’s request, Duble provided

FedEx with a letter from his treating physician stating “he has a neurologic

condition that is subject to fluctuation and can be worsened by exposure to heat in

his environment,” and he “need[s] to work in an environment that is inside and

away from heat for his own protection.” R. at 1381. Following the April 11, 2008,

incident, Duble was never asked, nor did he perform, the gatekeeper function

again.

         In November 2008, Duble’s supervisor asked him to conduct Customer

Service Rides (“CSRs”). Duble advised his supervisor, because of his MS, he

could not conduct CSRs in vans because they did not have air-conditioning and

involved too many stops. At the Miami facility there were approximately 100 non-

air-conditioned vans and only six bulk trucks with air-conditioning. FedEx

subsequently did not request Duble to perform CSRs in vans.

         In December 2008, Crosby went to the Miami facility and noticed one of the

van lines was being operated without a manager. Martinez told him FedEx had


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pulled some of the managers to assist in opening an annex building, so Crosby

decided to reassess the station. When they did so, Martinez told Crosby they could

not move Duble to the preload dock because he had heat restrictions. Crosby

decided they would have to assess the entire station and have HR review if the

accommodation for Duble was still needed. FedEx thereafter reevaluated its

ability to keep Duble in a managerial role under the constraints identified by his

physician.

      Duble was identified as a possible manager to move to preload, because

there was not enough managerial work to keep Duble in the limited P&D service

manager role. This would have required Duble to work the “graveyard shift,”

which he did not want to do. R. at 28, 30, 513. Duble worked different hours than

other P&D service managers, and he was unable to perform CSRs in vehicles not

equipped with air-conditioning. In January 2009, the Regional HR Manager

Michele Miles instructed Kim Luke, an Employee Relations Specialist, to

complete a second HREA form, regarding Duble’s continued limitations. Duble

stated he could perform the gatekeeper function if the returning delivery trucks

pulled up to bay door 32, an alternative FedEx permitted during inclement weather,

because this would allow him to stay indoors and not to become overheated.

According to the second HREA form, however, this suggested accommodation

posed an undue hardship FedEx.


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      Miles was instructed to offer Duble two options: (1) take short-term

disability leave for approximately three months, or (2) be reclassified to a clerk

position. On January 20, 2009, Miles, Luke, and Martinez met with Duble.

Martinez gave Duble the job descriptions for the P&D and Dock Service Manager

positions and told him to take these to his physician to provide a letter affirming

Duble could perform the listed duties. Duble’s physician sent a letter explaining

Duble could perform either job without difficulty from his neurologic condition.

Martinez reassigned Duble to preload.

      On March 6, 2009, Duble filed a complaint of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) and the Florida Commission on

Human Relations (“FCHR”). He alleged disability discrimination and retaliation,

because FedEx had failed to accommodate. During the EEOC’s investigation,

FedEx’s in-house counsel requested retrieval of Duble’s emails. As a result of

finding what was considered inappropriate content and language in numerous

emails, Duble was terminated on November 19, 2009, for violation of FedEx’s

email policy.

      The EEOC investigation concluded there was no probable cause to believe

unlawful discrimination or retaliation had occurred. Duble then filed suit alleging

disability discrimination by FedEx under the Americans with Disabilities Act

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


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§ 710.10. He alleged FedEx had taken adverse actions against him because of his

disability by failing to provide him with reasonable accommodations for his MS in

his capacity as P&D Service Manager. Further, he alleged FedEx had

discriminated against him, based on disability and had retaliated against him for

engaging in protected activities by (1) imposing adverse changes in the conditions

of his employment, when it transferred him to a different position, and (2) by

terminating him.

       The magistrate judge1 granted FedEx’s motion for summary judgment. The

magistrate judge concluded Duble failed to exhaust his administrative remedies

regarding his termination claims, Duble had not established a prima facie case of

failure to accommodate, and Duble’s transfer was not discriminatory or retaliatory.

On appeal, Duble argues the magistrate judge erred by granting summary judgment

to FedEx on (1) his retaliatory termination claim, 2 because he was not barred for

failure to exhaust his administrative remedies; (2) his discrimination claim for

failure to accommodate, because FedEx failed to accommodate his disability by

requiring him to choose between two options that were unacceptable

accommodations; and (3) his discriminatory and retaliatory transfer claims,

because he suffered an adverse action because of his disability and his protected
1
  The parties consented to jurisdiction before the magistrate judge. 28 U.S.C. § 636(c); Fed. R.
Civ. P. 73.
2
  Because Duble does not challenge on appeal the magistrate judge’s entry of summary judgment
in favor of FedEx on his discriminatory termination claim, Duble has abandoned that argument.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
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expression, and FedEx’s proffered legitimate, non-discriminatory reason for its

action was pretext.

                                 II. DISCUSSION

A. Retaliatory-Termination Claim

      We review de novo whether the requirement of exhaustion of administrative

remedies applies to a claim. Lanfear v. Home Depot, Inc., 536 F.3d 1217, 1221

(11th Cir. 2008). Exhaustion of administrative remedies is a matter in abatement

that should be raised in a motion to dismiss, or treated as such if raised in a motion

for summary judgment. Bryant v. Rich, 530 F.3d 1368, 1374-75 (11th Cir. 2008).

      Prior to filing an action in federal court for discrimination or retaliation, a

plaintiff must file an administrative charge with the EEOC. Gregory v. Ga. Dep’t

of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (discussing the exhaustion

requirement in Title VII actions). The purpose of the exhaustion requirement is to

allow the EEOC the first opportunity to investigate the alleged practices and to

perform its role “in obtaining voluntary compliance and promoting conciliation

efforts.” Id. (citation and internal quotation marks omitted). We have cautioned

“that allegations of new acts of discrimination are inappropriate” for a post-charge

judicial complaint. Id. at 1279-80. Consequently, “a plaintiff’s judicial complaint

is limited by the scope of the EEOC investigation which can reasonably be




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expected to grow out of the charge of discrimination.” Id. at 1280 (citation and

internal quotation marks omitted).

      It is unnecessary for a plaintiff to exhaust administrative remedies prior to

filing a judicial claim of retaliation if that claim grew “out of an earlier charge,”

because the “the district court has ancillary jurisdiction to hear such a claim when

it grows out of an administrative charge that is properly before the court.” Baker v.

Buckeye Cellulose Corp., 856 F.2d 167, 169 (11th Cir. 1988) (quoting Gupta v. E.

Tex. State Univ., 654 F.2d 411, 414 (5th Cir. Unit A Aug. 1981)). This exception,

however, does not apply, when no other properly raised judicial claim exists to

which the retaliation claim may attach.

      In Gupta, the plaintiff filed two EEOC charges and then commenced his

lawsuit arising out of those charges. 654 F.2d at 413. While the case was pending,

the plaintiff was notified his employment contract would not be renewed for the

following year. Id. He argued the termination was a retaliatory action against him,

but he never filed a charge with the EEOC alleging the retaliation. Under those

circumstances, we concluded it was unnecessary for the plaintiff to file a charge

with the EEOC before amending his complaint to include retaliation, because the

claim grew out of the administrative charge that properly was before the district

judge. Id. at 414.




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      We applied the Gupta rule in Baker, where the plaintiff had filed a lawsuit in

district court pursuant to a right-to-sue letter. 856 F.2d at 168. While the

complaint was pending, she filed a motion for preliminary injunction and sought to

enjoin allegedly retaliatory actions taken by her employer as a result of the suit. Id.

She did not file a separate charge with the EEOC regarding these actions, and her

employer argued the district judge had no jurisdiction to entertain the motion,

because she had not exhausted her administrative remedies for those actions. Id.

We held she did not have to exhaust her administrative remedies for the district

judge to have jurisdiction over the motion. Id. at 169.

      In Gupta, we determined the plaintiff could proceed on retaliation claims

growing out of EEOC charges that already were before the district judge. See

Gupta, 654 F.2d at 414 (“[T]he district court has ancillary jurisdiction to hear such

a claim when it grows out of an administrative charge that is properly before the

court.”). In Baker, we did not state whether the administrative charge already had

to be before the district judge, but noted the “complaint had been pending for four

months in the district court,” when the plaintiff filed a motion for preliminary

injunction. Baker, 856 F.2d at 168-69.

      Duble’s termination claims relate to a discrete act of alleged discrimination

that occurred after he filed his initial charge pertaining to FedEx’s purported

failure to accommodate. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,


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114, 122 S. Ct. 2061, 2073 (2002) (“Each incident of discrimination and each

retaliatory adverse employment decision constitutes a separate actionable

‘unlawful employment practice.’”). Moreover, Duble was terminated in November

2009 and did not file suit in district court until September 2011. Because this case

is factually distinguishable from Gupta and Baker, we conclude the Gupta rule

does not apply. Duble’s EEOC claim was still pending, when he was terminated,

ostensibly for violating FedEx’s email policy, and he had the opportunity to amend

his EEOC charge or file a new charge relating to his termination. Duble, however,

chose not to amend or file a new charge. Therefore, Duble failed to exhaust his

administrative remedies regarding his termination claims.

B. Failure-to-Accommodate Claim

      We review de novo “a grant of summary judgment on ADA claims,

construing the facts in the light most favorable to the non-moving party.” Holly v.

Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007). A movant is

entitled to summary judgment if “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).

We also may affirm a judgment on any legal grounds, regardless of the district

judge’s grounds and reasoning. Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230,

1235 (11th Cir. 2004).




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         We apply the burden-shifting analysis of Title VII employment-

discrimination claims to ADA claims. Holly, 492 F.3d at 1255. To establish a

prima face case of employment discrimination based on a disability, the plaintiff

must show “(1) he is disabled; (2) he is a qualified individual; and (3) he was

subjected to unlawful discrimination because of his disability.” Id. at 1255-56.

         Under the second prong,3 to establish a plaintiff was otherwise qualified, he

must prove he is a person with a disability who, “with or without reasonable

accommodation, can perform the essential functions” of the job. 42 U.S.C.

§ 12111(8). He must prove he is able to perform the essential functions of his job

without accommodation, or he is able to perform those functions with a reasonable

accommodation. Holly, 492 F.3d at 1256. “An accommodation is ‘reasonable’

and necessary under the ADA, in turn, only if it enables the employee to perform

the essential functions of the job.” Id. We have noted “prior accommodations do

not make an accommodation reasonable.” Wood v. Green, 323 F.3d 1309, 1314

(11th Cir. 2003). “[A]n employer who goes beyond the demands of the law to help

a disabled employee incurs no legal obligation to continue doing so.” Lucas v.

W.W. Grainger, Inc., 257 F.3d 1249, 1257 n.3 (11th Cir. 2001).

         To establish the third prong, the plaintiff must show the employer

discriminated against him on the basis of his disability. Holly, 492 F.3d at 1261-


3
    The facts are undisputed that Duble was disabled within the context of the ADA.
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62. “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.” Id. at 1262. After

Duble asserted he could not perform the gatekeeper function because of the hot

weather in Miami, FedEx did not require him to perform that function. FedEx also

did not require him to perform the CSRs in its vans, because the vans did not have

air-conditioning. Accordingly, the record does not show FedEx failed to

accommodate Duble for the two functions his MS prevented him from performing.

      Regardless of whether these functions were essential or marginal, or whether

Duble perceived the lack of requests to perform these functions as

accommodations, the record shows FedEx did not require him to perform any job

beyond his medical limitations. After the January 2009 meeting in which Miles

offered Duble the two options of taking short-term disability leave or accepting a

demotion, Miles allowed Duble to acquire another letter from his physician that

lifted his restrictions. FedEx did not require him to perform the gatekeeper

function or CSRs while awaiting that letter, and FedEx did not transfer him to

preload until after it received the requested letter from his physician. If these two

functions were marginal, then FedEx adequately accommodated Duble by not

requiring him to complete them. If they were essential, FedEx was not required to

accommodate Duble. See Wood, 323 F.3d at 1314 (explaining a previously


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provided accommodation does not necessarily make that accommodation

reasonable). Therefore, Duble failed to provide evidence that FedEx unlawfully

discriminated against him by failing to accommodate his disability. See Lucas,

257 F.3d at 1260 (recognizing the ADA may require an employer to restructure a

job “by altering or eliminating some of its marginal functions,” but employers are

not required to eliminate essential functions of a position).

C. Discriminatory and Retaliatory-Transfer Claims

      The ADA prohibits employers from discriminating against qualified

individuals on the basis of disability, regarding the discharge of employees or other

terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). 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.” § 12111(8). The retaliation section of the

ADA states that “[n]o person shall discriminate against any individual because

such individual has opposed any act or practice made unlawful by this chapter or

because such individual made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under this chapter.” § 12203(a).

Under the FCRA, it is unlawful for an employer to discriminate against any person,

because that person has opposed any practice which is an unlawful employment

practice under the FCRA, or because that person has made a charge or participated


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in any manner in an investigation, proceeding, or hearing under the FCRA. Fla.

Stat. § 760.10(7).

        We evaluate ADA and FCRA retaliation cases under the framework set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S. Ct. 1817, 1824

(1973). Holly, 492 F.3d at 1255; Farley v. Nationwide Mut. Ins. Co., 197 F.3d

1322, 1333 (11th Cir. 1999). First, the plaintiff must establish a prima facie case,

which raises a presumption that the employer’s decision was more likely than not

based on an impermissible factor. Richardson v. Leeds Police Dep’t, 71 F.3d 801,

805 (11th Cir. 1995). To establish a prima facie case for retaliation under the

ADA, the plaintiff must show “(1) he engaged in a statutorily protected expression;

(2) he suffered an adverse employment action; and (3) there was a causal link

between the adverse action and his protected expression.” Lucas, 257 F.3d at

1260.

        “An employment action is considered ‘adverse’ only if it results in some

tangible, negative effect on the plaintiff’s employment.” Id. at 1261. We have

held the question of whether an action is adverse is objective, such that “[a]n ADA

plaintiff must demonstrate that a reasonable person in his position would view the

employment action in question as adverse.” Doe v. Dekalb Cnty. Sch. Dist., 145

F.3d 1441, 1449 (11th Cir. 1998). An action is not adverse simply because the

plaintiff dislikes it or disagrees with it. Id. The plaintiff’s subjective preference of


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one position over another is generally not relevant to determine whether an action

was adverse. Id. at 1452.

      The record does not show Duble suffered an adverse action, satisfying the

requirements for a prima facie case of discrimination or retaliation under the ADA

or FCRA. In January 2009, FedEx undertook a needs analysis of the Miami

facility and reviewed all of the managers and their assignments. FedEx determined

Duble was an ideal candidate to move from his P&D Service Manager position,

where he was not performing the gatekeeper function or CSRs, to a Preload

Service Manager position. Duble’s transfer was considered a lateral move and did

not involve a loss in salary or benefits. Although Duble provided evidence the

decision greatly inconvenienced his personal life, an action is not adverse solely

because the plaintiff disliked or disagreed with it. See Doe, 145 F.3d at 1449.

      AFFIRMED.




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