Before the Court in the captioned case is Defendant's Motion for Summary Judgment. A hearing took place on October 27, 2000. For the reasons given below, Defendant's motion is GRANTED.
I. Background
Plaintiff is a white female. Plaintiff claims that Defendant discriminated against her in violation of the Americans with Disabilities Act ("the ADA"), 42 U.S.C. § 12101-12213. Plaintiff also claims that Defendant violated both the ADA and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-2000e-17 ("Title VII") by retaliating against her for filing an earlier lawsuit and for testifying on behalf of someone who filed a separate discrimination lawsuit against Defendant.
Defendant manufactures various chemical products at its Augusta facility. (Bridges Dep. at 52-53.) Defendant's facility consists of huge equipment and machinery enclosed indoors. (See id. at 60-6l.) According to Defense counsel, some apparatus are larger than the courtroom. Parts of it are tall and laddered. (Id. at 89-90.)
Defendant initially hired Plaintiff as a laboratory technician in 1988. (Id. at 54.) After a year, Plaintiff became a field operator. (Id.) In 1993, Defendant promoted Plaintiff to the position of control room operator. (Id. at 55.) Plaintiff remained at this position for several months. (Id. at 56.) In October 1993, Plaintiff began working in the "compounding" unit of Defendant's Augusta plant. (Id.)
Plaintiff's job duties were both manual and technical. Plaintiff monitored computers and prepared the equipment for start-up and shut-down. (Id. at 69.) In the field, Plaintiff cleaned equipment, took equipment apart, washed it with high pressure hoses, and filled bins with chemical products. (Id. at 70-72.) Plaintiff's job also included mixing raw materials. (Id. at 61.) The raw materials came in large, heavy packages. (Id. at 61-62.) Plaintiff had to carry fifty-pound bags and fifty-pound drums to put the raw materials in a blender. (Id.) There is a hoist that can lift certain material for pouring into the blender. (Id. at 62.) Plaintiff claims that on occasion, she asked for help lifting the raw materials. (Id. at 63.) Plaintiff testified:
And I wasn't provided help. I don't know if they couldn't afford me help or what, but pretty much most of the time I made the mixes alone.
(Id. at 63-64.)
In April 1998, Plaintiff injured her back preparing a mix. (Id. at 72.) Plaintiff went to the emergency room at a local hospital. (Id. at 74.) A physician released her to work but told her not to lift anything over ten pounds. (Ex. 5 to Bridges Dep.) Two days later, Plaintiff saw a University Hospital physician who is Defendant's "company doctor." (Bridges Dep. at 76-78.) According to Plaintiff, he said that she had mild scoliosis. (Id. at 77.) Defendant's physician told Plaintiff not to engage in repetitive lifting of objects over thirty-five pounds. (Ex. 6 to Bridges Dep.) On May 12, 1998, Plaintiff saw another one of Defendant's physicians, Dr. Polak. (Bridges Dep. at 78.) Dr. Polak is also a University Hospital physician who visits Defendant's plant to care for Defendant's employees. (Id.) Dr. Polak told her not to lift objects over thirty-five pounds and not to engage in any repetitive lifting. (Ex. 7 to Bridges Dep.)
At some point, Plaintiff allegedly was diagnosed with carpal tunnel syndrome. (See Bridges Dep. at 139, 147-48.) Plaintiff primarily claims that her back injury constitutes her purported disability. Plaintiff has not linked any adverse action to scoliosis or to carpal tunnel syndrome. Only Plaintiff's back condition occasioned this dispute.
During this time, Plaintiff stopped making mixes. (Bridges Dep. at 79.) Plaintiff admits that in the month following her injury, Defendant did not assign her tasks that violated her work restrictions. (Id. at 86-87, 144.) Nevertheless, Plaintiff allegedly experienced weakness in her legs and tingling in her extremities. (Id. at 81.) Plaintiff claims that she had trouble sleeping. (Id.) Plaintiff believes that Defendant should have placed restrictions on her job duties more extensive than those prescribed by Dr. Polak. (Id. at 148-49.)
In June 1998, Defendant transferred Plaintiff to a different production unit. (Id. at 92.) Plaintiff worked as a control room operator there. (Id. at 94.) The control room in this unit consists of four or five large computers that monitor the chemical compounding process. (Id. at 91-92.) Plaintiff's duties included monitoring manufacturing processes, taking readings, and "start-ups" and "shut-downs." (Id. at 94.) This new control room operator's job also included physical tasks. (Id. at 95.) On occasion, the control room operator in this unit must lift objects over fifty pounds, climb ladders and stairs, push heavy wheelbarrows, adjust valves, and carry equipment. (Id. at 95-98.) Plaintiff never had to do any work that violated her work restrictions. (Id. at 131-32.)
Plaintiff continued to see Dr. Polak. (Id. at 81-84.) Dr. Polak prescribed drugs for Plaintiff. (Id. at 82.) On June 23, 1998, Dr. Polak placed Plaintiff on an indefinite work restriction that prohibited her from lifting over thirty-five pounds and from engaging in repetitive lifting. (Ex. 9 to Bridges Dep.) Dr. Polak also referred Plaintiff to a number of specialists. (Bridges Dep. at 132-36.) Plaintiff admits that throughout 1998, she never performed any work that violated her work restrictions. (Id. at 131-32.)
On December 22, 1998, Dr. Polak examined Plaintiff. (Ex. 13 to Bridges Dep.) Dr. Polak left in place the earlier restriction on lifting over thirty-five pounds. (Id.) Dr. Polak cleared Plaintiff to push, pull, or drag up to fifty pounds. (Id.) Defendant never violated these work restrictions. (Bridges Dep. at 154-55.)
Defendant claims that Plaintiff accumulated four unexcused absences between December 8, 1998 and April 22, 1999. Sometime in March or April 1999, Plaintiff's supervisor issued an "oral reminder" that Plaintiff had missed work on four occasions. (Weaver Decl. ¶ 4.) There is a written record of this "oral reminder." (Ex. 16 to Bridges Dep.) This written form reports that "Betty has received 4 occurances [sic] since 12-8-98 due to being out of work sick." (Id.) On April 22, 1999, Plaintiff signed this form and wrote that she had been "unable to work due to job related injury." (Id.) Defendant asserts that company policy requires employees who miss work because of job-related injuries to get permission from a physician before returning to work. (Weaver Decl. ¶ 5.) Plaintiff never obtained permission from a doctor to return to work. (Bridges Dep. at 167-68.) Plaintiff testified that she never knew about this requirement. (Id.)
On May 20, 1999, Plaintiff received her annual performance review. (Ex. 17 to Bridges Dep.) The performance review reports that Plaintiff met expectations in some categories of evaluation. (Id.) In others, Plaintiff received an "O," indicating that she had an "opportunity for development." (Id.) An "O" is the least favorable rating. Plaintiff's supervisor wrote further that:
During my brief time with Betty on "D" shift it appears that she is not comfortable working in production although she has had years of experience in the Amodel process. Betty has not achieved the confidence nor the competence she needs to perform and take ownership of her job. Betty from my observations is relying too much on her co-workers to prompt her when something needs to be done or take over for her during a crisis. There are only a few tasks that Betty can perform without her notes or instructions and guidance from someone else. Betty presently has completed 64% of her Amodel console operator's [illegible] but still needs a lot of work in developing her operating and troubleshooting skills.
(Id.) Plaintiff disagreed. On the performance review, she wrote:
I disagree with [illegible] comments written against my performance and abilities on first page. I feel this is directly related to case building against [illegible]
(Id.) This performance review upset Plaintiff. (Bridges Dep. at 186-87.) Plaintiff's performance review did not affect her wages. (Weaver Decl. ¶ 8.)
Plaintiff received this performance review around 4:00 P.M. (Bridges Dep. at 185.) There was a training session scheduled. (Id.) When Plaintiff's shift ended, she left work and did not attend the training session. (Id. at 186.) Defendant claims that Plaintiff was required to attend. Plaintiff disputes this claim. (Id.) The written notification that Plaintiff received does not explicitly require attendance. (Ex. A to Harris Decl.) Plaintiff did not tell her supervisor that she was leaving. (Harris Decl. ¶ 17.) Plaintiff asserts that she told one of her co-workers that she was not feeling well and that she would not attend the training session. (Bridges Dep. at 186.) Plaintiff's superiors characterized Plaintiff's absence as "unacceptable." (Harris Decl. ¶ 17.)
Plaintiff had the next two days off. (Bridges Dep. at 190.) Plaintiff missed several days for back pain. (Id.) A note from Plaintiff's physician confirmed the reason for her absence. (Ex. 18 to Bridges Dep.) Plaintiff returned to work on May 28. (Bridges Dep. at 191.) Plaintiff was told that she needed to see Defendant's physician and was sent home. (Id.)
When Plaintiff went home, she received a telephone call from Kathy Harris ("Harris"), one of Defendant's personnel managers. (Id.) Harris placed Plaintiff on "crisis suspension" for leaving work and for failing to attend the training session. (Id. at 192.) As a result, Plaintiff could not return to work until Harris had completed her investigation into the matter. (Id. at 191.) Plaintiff received full pay while on crisis suspension. (Id. at 192.)
When Plaintiff returned to work, she met with Harris. (Id. at 193.) Harris discussed Plaintiff's suspension and told Plaintiff that her failure to attend the training session was unacceptable. (Harris Decl. ¶ 19.) Harris also told Plaintiff that her job performance had been unsatisfactory. (Id.) Harris presented Plaintiff with a written warning. (Id.; Ex. 19 to Bridges Dep.) Harris asked Plaintiff to sign the written warning to acknowledge that she had received it. (Harris Decl. ¶ 20.) Plaintiff refused. (Id.) Harris claims that she explained to Plaintiff that her signature was required but that it would acknowledge only receipt of the warning and not its content. (Id.) Plaintiff does not recall this alleged explanation. (Bridges Dep. at 197-98.) Plaintiff refused to sign the document. (Id. at 197.) Plaintiff's understanding was that she did not have to sign any statement with which she did not agree. (Id. at 198.)
Harris ordered Plaintiff to sign the written warning. (Harris Decl. ¶ 21.) Harris told Plaintiff that she would place her on "decision-making leave" (known as "DML") if she did not sign the written warning. (Bridges Dep. at 194.) Plaintiff refused, and Harris placed her on DML. (Harris Decl. ¶ 23; Ex. C to Harris Decl.) DML is a paid day off during which an employee can decide whether to remain with Defendant. (Harris Decl. ¶ 22.) On June 22, Plaintiff committed in writing to remain with Defendant.
In the meantime, Plaintiff saw a specialist to whom Dr. Polak had referred her. (Bridges Dep. at 225.) This specialist told her that she should not climb ladders, turn valves, or perform other tasks that aggravated her back pain. (Id. at 226.) Plaintiff underwent a "functional capacity exam" on June 22, 1999. (Ex. 34 to Bridges Dep.) Plaintiff requested an accommodation by "tak[ing her] out of the field." (Id.)
Plaintiff returned to work. Plaintiff's duties included climbing to check equipment for safety, studying operations manuals, and checking safety sheets. (Bridges Dep. at 240.) Plaintiff experienced numbness in her hands from turning valves. (Id. at 243.) Plaintiff admits that she did not do any heavy lifting. (Id. at 240.) Plaintiff does not know whether she violated her work restrictions when she turned valves because she does not know how much torque was required to turn the valves. (Id.) Plaintiff does not specifically recall any occasion on which Defendant violated her work restrictions before or after she saw Dr. Polak on June 22. (Id. at 222-23, 240.)
On July 16, 1999, Plaintiff filed a charge of discrimination with the Augusta Human Relations Commission ("the HRC"). (Ex. 32 to Bridges Dep.) Plaintiff indicated that she wanted the charge filed simultaneously with the federal Equal Employment Opportunity Commission ("the EEOC"). (Id.) The charge accuses Defendant of assigning Plaintiff job duties that violated her medical restrictions. (Id.) Plaintiff complained therein about the May 20 performance review, about her crisis suspension, and about her DML. (Id.) Plaintiff charged that Defendant discriminated against her on the basis of her gender and her disability. (Id.) Plaintiff also charged that Defendant retaliated against her for having filed earlier charges of discrimination. (Id.)
On August 3, Plaintiff again saw Dr. Polak. Dr. Polak permanently restricted her from lifting over thirty-five pounds, from pulling or pushing over fifty pounds with her whole body, from pulling or pushing over twenty-five pounds with either arm, and from climbing ladders over ten feet. (Ex. 28 to Bridges Dep.)
On August 5, Plaintiff met with Harris and Jerry Usry ("Usry"), who is another one of Defendant's managers. (Bridges Dep. at 244.) Harris and Usry removed Plaintiff from her "operations" work because none of this work fit her work restrictions. (Id.) Harris and Usry told Plaintiff that the only job available was an administrative position. (Id.) According to Harris, the administrative position was the only job that fit her work restrictions. (Harris Decl. ¶ 32.) The administrative position paid $20,000 per year. (Bridges Dep. at 248.) It would have entailed a $28,000 pay cut. (Id.) To ease the transition, Harris offered to let Plaintiff retain her higher salary for the first three months of her working in the administrative position. (Id. at 252.) Plaintiff turned down the administrative position. (Id. at 253.) In addition to her obvious concern about working for a lower salary, Plaintiff was concerned that she had little experience in the area and that she might be vulnerable to a layoff. (Id.)
Plaintiff asked for a job in which she could remain in the "control room" without doing "field" work. (Id. at 245.) Plaintiff apparently envisioned a job where she could work on the brink of the manufacturing process without performing the manual labor that aggravated her back pain. Remaining in the control room would have required Plaintiff to monitor information and to type data into computers. (Id. at 254.) It is not clear whether such a position was available; most "control room" jobs seem to involve manual "field" work. (E.g., id. at 63, 94-95, 245-48.) Plaintiff also asked about work in the packaging department, in the warehouse, or as a fork lift operator. (Id. at 245-46.)
Harris sent Plaintiff a letter dated August 13, 1999. (Ex. 30 to Bridges Dep.) Harris wrote that Plaintiff was not qualified to be a "Console Operator." (Id.) Harris insisted that the administrative position was the only available job that could accommodate Plaintiff's work restrictions. (Id.) Harris informed Plaintiff that refusing the administrative position would be tantamount to quitting. (Id.) Harris placed Plaintiff on personal leave. (Id.)
Plaintiff responded in a letter dated August 23, 1999. (Ex. 31 to Bridges Dep.) The subject heading was "Rational [sic] for decision — Legal document for my attorneys and EEOC filing." (Id.) Plaintiff refused the administrative position. (Id.) Plaintiff explained that she:
would still have problems with [her] back and hands due to continuous computer data entry and long intervals seated in front of a computer terminal.
(Id.) Plaintiff complained:
Since March 1999 I have had write ups, bad performance reviews, sent home for crisis suspension, sent home for DML, now taken out of operations and demoted and continue [sic] to be victimized by a hostile work environment. Without a doubt, there would be ongoing harassment wherever I'm placed within Amoco. I've asked to be taken out of field duties before my restrictions became permanent. I've asked to be accommodated as E shift console operator, which is my primary position, with someone assisting in the control room during my shift. However, I was refused this accommodation even though similar accommodations have been made for other physically restricted operators, without demotion and deep cuts in salary.
(Id.) Plaintiff applied for long-term disability benefits. (Bridges Dep. at 14.) Defendant approved Plaintiff's application. (Id.) At the time of her deposition, Plaintiff was not working but nevertheless received her full salary because of her occupational injury. (Id.) Plaintiff testified that at the time of her deposition, she had not yet suffered any decrease in wages. (Id.)
On August 25, 1999, Plaintiff filed another charge of discrimination with the HRC and the EEOC. (Ex. 33 to Bridges Dep.) Plaintiff claimed that she had to choose between resigning or accepting the lower-paying administrative position. (Id.) The charge does not specifically allege that Defendant fired Plaintiff.
This is not the first time that Plaintiff has been involved in litigation against Defendant. In 1996, Plaintiff sued Defendant for alleged violations of the Fair Labor Standards Act of 1938 and Title VII. (Def.'s Ex. 6.) Plaintiff's current counsel did not represent Plaintiff in the 1996 suit. Plaintiff voluntarily dismissed her Title VII claim. An Order dated December 30, 1997 granted Defendant's summary judgment motion in that case. Bridges v. Amoco Polymers, Inc., 19 F. Supp.2d 1375 (S.D. Ga.). Also, Plaintiff testified in 1998 on behalf of Larry Grant in his race discrimination suit against Defendant,Grant v. Amoco Polymers, Inc., CV 196-098. A jury trial began on May 8, 1998. The jury found in Defendant's favor.
II. Requirements for Summary Judgment
The Court should grant summary judgment only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw "all justifiable inferences in [its] favor," United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted)
The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof at trial, that party "must show that, on all the essential elements of its case, . . . no reasonable jury could find for the non-moving party." Four Parcels, 941 F.2d at 1438. On the other hand, if the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways — by negating an essential element of the nonmovant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining Adickes v. S.H. Kress Co., 398 U.S. 144 (1970) and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Before the Court can evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.Jones v. City of Columbus, 120 F.3d 248, 254 (11th Cir. 1997) (per curiam). A mere conclusory statement that the non-movant cannot meet the burden at trial is insufficient. Clark, 929 F.2d at 608.
If — and only if — the movant carries its initial burden, the non-movant may avoid summary judgment only by "demonstrat[ing] that there is indeed a material issue of fact that precludes summary judgment." Id. Again, how to carry this burden depends on who bears the burden of proof at trial. If the movant has the burden of proof at trial, the non-movant may avoid summary judgment only by coming forward with evidence from which a reasonable jury could find in its favor.Anderson, 477 U.S. at 249. If the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carries its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant "must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated." Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence of evidence on a material fact, the non-movant must either show that the record contains evidence that was "overlooked or ignored" by the movant or "come forward with additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency." Id. at 1116-17. The non-movant cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. See Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) Rather, the non-movant must respond by affidavits or as otherwise provided by Fed.R.Civ.P. 56.
The Clerk has given the non-moving party notice of the summary judgment motion and the summary judgment rules, of the right to file affidavits or other materials in opposition, and of the consequences of default. (Doc. No. 20.) Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied. The time for filing materials in opposition has expired, and the motion is ripe for consideration.
III. Plaintiff's ADA Discrimination Claim
Defendant argues that Plaintiff cannot establish a prima facie case of disability discrimination. The ADA prohibits disability discrimination "in regard to . . . employee compensation . . . and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). The burden-shifting analysis of Title VII employment discrimination claims governs ADA claims. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000) (per curiam). To establish a prima facie case, Plaintiff must show:
1) that she is disabled;
2) that she is a qualified individual; and
3) that she was subject to unlawful discrimination because of her disability.
Id.
Defendant argues that Plaintiff has failed to establish two elements of a prima facie case. Defendant argues that Plaintiff is not disabled and that Plaintiff is not qualified to do her job. It is not clear whether Plaintiff's back condition and her permanent work restrictions constitute a disability. See Reed v. Heil Co., 206 F.3d 1055, 1061-62 (11th Cir. 2000) (declining to decide the issue). It is clear, however, that Plaintiff is not a qualified individual.
To show that she is a qualified individual, Plaintiff must show that she can perform the essential functions of the job she desires, with or without reasonable accommodation. 42 U.S.C. § 12111(8). Consideration must be given to Defendant's judgment as to what constitutes essential job functions. Id. In this case, Plaintiff wants to be a control room operator. Determining whether Plaintiff is qualified is a two-step inquiry. Reed, 206 F.3d at 1062. The first inquiry is whether Plaintiff has the skills, experience, and educational background to hold the position. Id. The second inquiry is whether Plaintiff can perform the essential functions of the position, with or without reasonable accommodation. Id.
Plaintiff undeniably has the necessary skills, experience, and education. Defendant correctly argues that Plaintiff cannot perform the essential job functions of a control room operator because the job requires physical exertion that would violate her work restrictions. Harris explains:
The Amodel ® unit has a number of valves that are used to control pieces of equipment. Some of the valves have wheels that must be turned, others have pull levers and still others have different operating methods. Due to their location on the equipment, frequency of use, as well as what equipment they control, it is impossible to determine what amount of exertion is necessary to maneuver any given valve . . . .
The June 29, 1999 medical restrictions for the first time placed limitations on the weight and kinds of movements that are normally associated with maneuvering valves. However, because neither Amoco nor Ms. Bridges could determine what amount of force was necessary to maneuver any given valve, it was unclear what work in the field might violate her work restrictions.
(Harris Decl. ¶¶ 28-29.) Harris concludes that
[i]t was evident that Ms. Bridges' medical restrictions prevented her from doing a significant portion of the essential functions of a control room operator position.
(Id. ¶ 31.)
The record supports Harris's assessment. The written job description supplied by Plaintiff explains:
To perform this job successfully, an individual must be able to perform each essential duty satisfactorily. The requirements listed below are representative of the knowledge, skill, and/or ability required.
(Exs. attached to Doc. No. 29.) Among these requirements are a list of physical demands. Specifically, a control room operator
is regularly required to stand; walk; use hands and fingers, handle, or feel; and talk or hear. The employee frequently is required to reach with hands and arms; climb or balance; and stoop, kneel, crouch, or crawl. The employee is occasionally required to sit and taste or smell. The employee must regularly lift and/or move up to 10 pounds, frequently lift and/or move up to 25 pounds, and occasionally lift and/or move up to 50 pounds. Specific vision abilities required by this job include close vision, distance vision, color vision, peripheral vision, depth perception, and ability to adjust focus.
(Id.) Plaintiff admitted in her deposition that working as a control room operator required the demanding labor needed to make mixes. (Bridges Dep. at 63.) Plaintiff admitted, "I did have some field duties or you do have field duties as a control room operator." (Id. at 95.) Plaintiff explained that these field duties included lifting as much as fifty pounds and climbing ladders. (Id. at 95-96.) The work also involves turning valves, some of which require "some real elbow grease." (Id. at 99.) Plaintiff cannot perform these duties without violating her permanent work restrictions. (See Ex. 28 to Bridges Dep.) Plaintiff acknowledged that she had difficulty performing her job duties. (Bridges Dep. at 226.) Furthermore, emergencies that involve demanding physical labor might arise. (Id. at 86.)
Plaintiff is not qualified to be a control room operator without accommodation or modification of its essential job functions. Plaintiff has not seriously contended otherwise. In response to Defendant's contention that Plaintiff is not qualified, the only argument in Plaintiff's brief is that Defendant intentionally exacerbated her back injury. Plaintiff has referred to no evidence that Defendant willfully injured her. Plaintiff avers generally that Defendant accommodated other injured co-workers, but her brief refers to no occasion on which Defendant eliminated the field duties of a control room operator. (See id at 246-48.)
Plaintiff argues that she could be a control room operator if Defendant were to accommodate her alleged disability. At the August 5 meeting with Harris and Usry, Plaintiff asked if they could accommodate her back condition by letting her work in the control room without requiring the vigorous field work normally associated with the control room operator's duties. (Id. at 245-46.) Plaintiff also asked about other jobs, none of which was available. (Id.)
When specifically prompted at oral argument, Plaintiff's counsel referred to no other accommodation requested at the August 5 meeting. On occasion some time before her back injury, Plaintiff allegedly asked if someone could help her with the heavier lifting. (Id. at 65-67.) Plaintiff has not shown that she had a disability at this point in time. Therefore, Defendant had no duty to accommodate her request. Plaintiff did not propose this solution when the matter came to a head at the August 5 meeting — a meeting specifically intended to resolve the problems posed by Plaintiff's work restrictions. Defendant has no obligation to provide an accommodation that Plaintiff did not request at that meeting. Gaston v. Bellingrath Gardens Home Inc., 167 F.3d 1361, 1363-64 (11th Cir. 1999) (per curiam)
Plaintiff correctly observes that the ADA requires Defendant to reasonably accommodate statutory disabilities. Earl, 207 F.3d at 1365. Plaintiff has satisfied her burden of identifying an accommodation. Id. at 1367. The issue, then, is whether the accommodations requested at the August 5 meeting were reasonable. Id.
The problem with Plaintiff's argument is that she asked Defendant to eliminate essential functions of the control room operator position. A request to change the essential functions of a job is not a request for a reasonable accommodation. Id. Plaintiff is not entitled to the accommodation of her choice. Id.
Plaintiff asked to work as a fork lift operator, in the warehouse, and in the packaging department. (Bridges Dep. at 245-46.) Plaintiff has referred to no evidence that these positions were available. Reassignment is a reasonable accommodation only if a position is available. Reed, 206 F.3d at 1062. Plaintiff has not disputed Defendant's assertion that the administrative position was the only available position that fit her work restrictions. (Harris Decl. ¶ 32.) Defendant thereby accommodated Plaintiff's back condition to the greatest extent possible. Further, Defendant reasonably relied on the medically prescribed work restrictions and accommodated Plaintiff's injury insofar as it never assigned Plaintiff work that violated those restrictions. (See Bridges Dep. at 86-87, 131-32, 144, 154-55, 222-23.) Plaintiff asserts otherwise, but her brief refers to no evidence that Defendant ever violated her work restrictions.
No reasonable trier of fact could conclude that Plaintiff is qualified to be a control room operator. Defendant is therefore entitled to summary judgment on Plaintiff's ADA claim.
IV. Plaintiff's Retaliation Claims
Plaintiff claims that Defendant retaliated against her because she testified in a prior discrimination lawsuit against Defendant and because she filed earlier charges of discrimination. Defendant argues that Plaintiff cannot establish a prima facie of retaliation. To establish a prima facie case of retaliation under either the ADA or Title VII, Plaintiff must show:
(1) that she engaged in statutorily protected activity;
(2) that she suffered an adverse employment action; and
(3) that there is a causal link between the protected activity and the adverse action.
Griffin v. GTE Fla. Inc.,
182 F.3d 1279, 1281 (11th Cir. 1999) (per curiam). If Plaintiff establishes a prima facie case of retaliation, the burden shifts to Defendant to articulate a legitimate, nondiscriminatory reason for the adverse action.
Gupta v. Florida Bd. of Regents,
212 F.3d 571, 590 (11th Cir. 2000),
petition for cert. filed, No. 00-726 (U.S. Nov. 2, 2000). If Defendant satisfies this burden, Plaintiff must come forward with evidence that Defendant's articulated nondiscriminatory reason is pretextual.
Farley v. Nationwide Mut. Ins. Co.,
197 F.3d 1322, 1336 (11th Cir. 1999).
Plaintiff testified in Larry Grant's case in May 1998. Plaintiff has supplied no reason to link her testimony with any putative adverse action that took place after September 1998. See Maniccia v. Brown, 171 F.3d 1364, 1369-70 (11th Cir. 1999) (discussing time gaps in retaliation cases). In particular, the performance review of May 20, 1999 and the related disciplinary measures occurred over a year later. There is no reason to believe that the disciplinary measures imposed on Plaintiff or her unfavorable performance review were acts of retaliation.
I will assume for Plaintiff's benefit that she has established a prima facie case of retaliation with respect to her resignation in August 1999. Plaintiff resigned within weeks of filing two charges of discrimination. Defendant effectuated Plaintiff's resignation from her position as a control room operator because its job duties would have violated her permanent medical restrictions. Plaintiff has referred to no evidence that Defendant's motive was retaliatory. Defendant is therefore entitled to summary judgment on Plaintiff's retaliation claims.
V. Conclusion
Upon the foregoing, Defendant's Motion for Summary Judgment (Doc. No. 18) is hereby GRANTED. The Clerk is instructed to CLOSE this case and enter FINAL JUDGMENT in favor of Defendant. Costs are taxed against Plaintiff.