Stanislav Zalezhnev v. Wonderworld Montessori Academy Corporation

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10277
Non-Argument Calendar
____________________
STANISLAV ZALEZHNEV,
Plaintiff-Appellant,
versus
WONDERWORLD MONTESSORI ACADEMY
CORPORATION,
Wonderland Montessori Academy Corporation
f.k.a. Wonderland Montessori Academy Corporation,
Defendant-Appellee.
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2 Opinion of the Court 20-10277
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cv-60268-RAR
____________________
Before LAGOA , BRASHER , and B LACK , Circuit Judges.
PER CURIAM:
Stanislav Zalezhnev appeals the district court’s order
granting Wonderworld Montessori Academy Corporation’s
(WMA) motion for summary judgment on his claims of
discrimination, harassment, and retaliation under the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101. Zalezhnev
contends the district court erred in granting summary judgment to
WMA on his discrimination claim by finding he had not shown he
had a disability and was a qualified individual under the ADA. He
also asserts the district court erred in granting summary judgment
to WMA on his retaliation and harassment claims by finding he was
not disabled and he otherwise failed to establish
prima facie claims.
After review,1 we affirm the district court.
1 We review a district court’s grant of summary judgment
de novo.
Kernel
Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). Summary
judgment is appropriate when there is no genuine issue of material fact, and
the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a).
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20-10277 Opinion of the Court 3
I. BACKGROUND
Zalezhnev was employed for three months as a
maintenance and security guard at WMA. He began his
employment in October 2017. Zalezhnev signed a document
stating he received the employee handbook and understood he was
responsible for reading its contents. The employee handbook
contained the job description of each position at WMA. Under the
“Security” position, the physical requirements include “physical
exertion to manually move, lift, carry, pull, or push heavy objects
or materials,” and “stooping, kneeling, crawling, bending, turning,
and reaching.” The “Maintenance” position included both
operating equipment and machinery as necessary and maintaining
the school property. Despite signing a form stating he received the
employee handbook, Zalezhnev asserts he never received it, but
does remember signing a number of forms when he began his
position. Zalezhnev asserts he understood that he was hired to
work primarily as a security person.
During his three months in his position at WMA, Zalezhnev
used a leaf blower, picked up tree debris and garbage, shampooed
the carpets in the classrooms with heavy equipment, cleaned the
animal cages, ran errands, and assisted parents and children at
arrival and dismissal by operating non-motorized school gates that
required pushing and pulling. Zalezhnev alleges on multiple
occasions he told Camilla Rovshan, the President and Owner of
WMA, that he suffered from a physical condition that “impair[ed]
his ability to walk, push, pull, bend and lift heavy objects.”
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4 Opinion of the Court 20-10277
Zalezhnev had surgery in 2014 to address his cervical cord
compression and myelopathy. Zalezhnev’s condition derives from
the “fusion of his neck (cervical) bones” which causes him to suffer
from numbness in one of his legs. Because of this condition,
Zalezhnev alleges he had difficulty using the leaf blower, operating
the large carpet cleaner, lifting heavy items, and pushing and
pulling the non-motorized school gates. Zalezhnev offered to
provide medical documents from his surgery in order to provide
Rovshan with proof of his condition, but he contends she refused
to review his medical documentation.
Zalezhnev asserts that after he told Rovshan of his physical
impairments, Rovshan threatened to cut his hours and ridiculed
him by asking him “what good are you for?” Similarly, on one
occasion, Zalezhnev told Rovshan his back hurt while cleaning the
exterior trash, and Rovshan threatened to fire him, but did not do
so then. On January 12, 2018, Zalezhnev told Rovshan he had a
doctor’s appointment after work to obtain a physical.
Subsequently, an argument ensued between the parties and
Zalezhnev was fired.
II. DISCUSSION
A. ADA Discrimination
The ADA provides that no employer shall discriminate
against a qualified individual on the basis of disability in discharging
its employees.
See 42 U.S.C. § 12112(a). “To establish a
prima facie
case of discrimination under the ADA, a plaintiff must show that:
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20-10277 Opinion of the Court 5
(1) he is disabled; (2) he is a qualified individual; and (3) he was
subjected to unlawful discrimination because of his disability.”
Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1255–56 (11th Cir.
2007).
The district court did not err in granting summary judgment
to WMA because Zalezhnev failed to establish a
prima facie
discrimination claim. The ADA defines a “disability” as a physical
or mental impairment that “substantially limits” one or more
major life activities of an individual. 42 U.S.C. § 10212(1). WMA
concedes that Zalezhnev has a physical impairment from his
cervical fusion.
As a result, the issue is limited to whether Zalezhnev’s
cervical fusion resulted in impairments that “substantially limited”
his major life activities. “Major life activities” include such things
as “caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.”
Chanda v.
Engelhard/ICC, 234 F.3d 1219, 1222 (11th Cir. 2000). An
impairment is considered to “substantially limit” one of these
activities if the disability renders the individual unable to perform
the activity or significantly restricts its performance compared to
the average person.
Id.
Zalezhnev did not present any medical documentation of
his cervical fusion; instead, WMA submitted records from his
hospitalization in 2014, which stated the procedure went well and
his postoperative course was unremarkable. No other medical
records were submitted. While Zalezhnev asserted he was having
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6 Opinion of the Court 20-10277
difficulty performing physical tasks, his own deposition testimony
undermined any restriction as he stated that he performed the
duties of the position despite the pain and never refused to perform
them. Consequently, there was a dearth of record evidence
showing the severity of Zalezhnev’s impairment and that his fusion
made him unable to perform an activity or significantly restricted
his performance compared to an average person.
See id.
Further, the district court did not err in concluding
Zalezhnev did not establish he was “regarded as” disabled.
See 42
U.S.C. § 12102(1)(C) (providing a person may establish a disability
by being “regarded as having such an impairment”). A plaintiff is
regarded as having an impairment if he establishes he has been
subjected to a prohibited action because of an actual or perceived
physical impairment whether or not the impairment limits or is
perceived to limit a major life activity.
Id. § 12102(3)(A).
Zalezhnev’s own affidavit mentions instances where he
complained to Rovshan about the pain he was experiencing in
performing his duties, she told him to continue, and he did.
Zalezhnev stated he was fulfilling his duties despite his pain.
Zalezhnev has provided no evidence beyond his own conclusory
statements that he was “regarded as” disabled.
Zalezhnev also cannot show that he is a “qualified
individual,” 42 U.S.C. § 12111(8) (providing a plaintiff must show
he is “an individual who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds”). “Essential
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20-10277 Opinion of the Court 7
functions” are the fundamental job duties of a position that an
individual with a disability is actually required to perform.
29 C.F.R. § 1630.2(n)(2)(1). The ADA directs the district court to
consider the employer’s judgment of what functions are essential
including factors such as the amount of time spent performing the
tasks, the consequences of not performing the function, and a
written job description.
Id. § 1630.2(n)(3). The employee
handbook identified both maintenance of the property and the use
of machines as necessary functions of the maintenance position,
and identified several physical requirements of the security
position. The district court reasonably concluded these job
descriptions encompassed maintaining clean school grounds and
operating the non-motorized gates at arrival and dismissal.
See 42
U.S.C. § 12111(8); 29 C.F.R. § 1630.2(n)(3). Moreover, WMA
submitted Zalezhnev’s application for the security/maintenance
position, his acknowledgement of the employee handbook, and his
deposition admission that his duties included opening and closing
the gates. As such, the district court did not err in finding that
maintaining the grounds and opening the gates were essential
functions of Zalezhnev’s position.
See 29 C.FR. § 1630.2(n).
Lastly, the district court did not err in concluding that
Zalezhnev never made a reasonable accommodation request.
42 U.S.C. § 12112(b)(5)(A) (providing discrimination under the
ADA also includes the failure to make a reasonable
accommodation to the known physical or mental limitations of the
individual);
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d
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1361, 1364 (11th Cir. 1999) (explaining the duty to provide a
reasonable accommodation is not triggered under the ADA unless
a specific demand for an accommodation has been made by the
plaintiff). Throughout his filings, Zalezhnev never identified any
accommodation request made to WMA that would have made
him better able to perform his duties, much less an instance where
he requested an accommodation.2 Rather, Zalezhnev only
references informing Rovshan of his pain, not that he requested
help, assistance, or some other form of alteration to his job duties.
Moreover, he testified during his deposition that he “didn’t think
that accommodations [were] available” and did not “see any
opportunity for help.” Without making a request, WMA was not
obligated to offer an accommodation or have an interactive
process.
See Gaston Inc., 167 F.3d at 1364;
Stewart v. Happy
Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir.
1997) (stating an employer is not liable where they made
reasonable efforts to communicate with the employee and to
provide accommodations based on the information it possessed,
and where the employee’s actions caused the breakdown in the
interactive process). Accordingly, we affirm the district court’s
grant of summary judgment on Zalezhnev’s discrimination claim.
2 Zalezhnev abandoned any argument that the motorization of the gate could
be a reasonable accommodation by raising this argument for the first time on
appeal.
See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004) (holding an issue not raised in the district court and raised for
the first time on appeal will not be considered).
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B. ADA Harassment and Retaliation
The district court also did not err in granting summary
judgment to WMA on Zalezhnev’s harassment and retaliation
claims. We have recognized that different forms of discrimination
claims may not be repackaged or “reclothe[d] into other claims.”
Lucas v. W. W. Grainger,
Inc., 257 F.3d 1249, 1261 (11th Cir. 2001)
(recognizing that Lucas’s asserted adverse action for both his
retaliation and failure-to-accommodate claims was identical and
failure in one was fatal to the other);
see also Stewart, 117 F.3d at
1288 (“[T]he acts Stewart describes relate directly to her
‘reasonable accommodation’ discrimination claim, not her
retaliation claim, and accordingly provide no basis for denying
summary judgment on this issue.”). The district court did not err
in concluding the factual support for all three of Zalezhnev’s claims
was identical, and thus his harassment and retaliation claims failed
because he failed to establish he was disabled under the ADA.
See
42 U.S.C. § 12112(a).
While we have not addressed whether a harassment claim
is cognizable under the ADA, in the context of Title VII, to establish
a valid harassment claim based on a supervisor’s conduct, the
plaintiff must show that (1) he belongs to a protected group, (2) he
has been subject to unwelcome harassment, (3) the harassment
was based on a protected characteristic of the employee, (4) the
harassment was sufficiently severe or pervasive to alter the terms
and conditions of employment, and (5) the employer was
responsible for such environment.
Mendoza v. Borden, Inc., 195
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10 Opinion of the Court 20-10277
F.3d 1238, 1245 (11th Cir. 1999) (en banc). Zalezhnev failed to
demonstrate his supervisor’s conduct reached the level of severity
and pervasiveness to constitute harassment.
See Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002)
(Title VII) (explaining to determine severity and pervasiveness, we
look at the totality of the circumstances and consider the conduct’s:
(1) frequency; (2) severity; (3) threatening or humiliating nature, or
mere offensiveness; and (4) unreasonable interference with the
employee’s job performance). Zalezhnev was employed for about
three months with WMA, and during that time he recounts a
number of instances where Rovshan made threatening,
“ridicul[ing]” or negative remarks about him. However,
Zalezhnev provided little evidence of their actual frequency and,
based on his statement that he performed his duties and Rovshan’s
statement that he was a good worker, the comments did not appear
to unreasonably interfere with his performance.
See Miller, 277
F.3d at 1276. Accordingly, the district court did not err in granting
summary judgment to WMA on Zalezhnev’s harassment claim.
Likewise, the district court did not err in granting summary
judgment on Zalezhnev’s retaliation claim. To establish a
prima
facie retaliation claim under the ADA a plaintiff must show that:
(1) he engaged in statutorily protected expression; (2) he suffered
an adverse employment action; and (3) there was a causal
relationship between the action and his protected expression.
Lucas, 257 F.3d at 1260. The district court correctly stated that
Zalezhnev did not identify a specific form of protected expression
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on which he based his retaliation claim. For the first time on
appeal, he contends that when he told Rovshan he had pain and
difficulty pushing, pulling, and bending, she retaliated against him
by threatening to cut his hours and fire him, and then eventually
fired him. Even treating that argument as preserved, the only
adverse action substantiated by the record is his termination, and
Zalezhnev stated in his deposition that his termination was due to
someone replacing him and not because of his disability or an
accommodation request. Thus, the district court did not err in
granting summary judgment to WMA on Zalezhnev’s harassment
and retaliation claims. Accordingly, we affirm.
III. CONCLUSION
The district court did not err in granting summary judgment
to WMA because Zalezhnev did not establish that he had a
disability, was a qualified individual, or requested an
accommodation. Because he based his harassment and retaliation
claims on the same faulty disability allegations, the district court
likewise did not err in granting summary judgment on those
claims. Additionally, he failed to establish
prima facie cases of
harassment or retaliation. Accordingly, we affirm the district
court.
AFFIRMED.
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