Patricia A. Johnson v. Walt Disney Parks and Resorts U.S., Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12696
Non-Argument Calendar
____________________
PATRICIA A. JOHNSON,
Plaintiff-Appellant,
versus
WALT DISNEY PARKS AND RESORTS U.S., INC.,
a Florida profit corporation,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 21-12696
D.C. Docket No. 6:19-cv-02139-GAP-EJK
____________________
Before W ILSON, J ILL PRYOR , and ANDERSON, Circuit Judges.
PER CURIAM:
Patricia A. Johnson appeals the district court’s grant of sum-
mary judgment to Walt Disney Parks and Resorts US, Inc. (“Dis-
ney”) on her claim of disability discrimination under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12112.1 Johnson alleged
that Disney discriminated against her when it terminated her after
denying her requests for a reasonable workplace accommodation.
On appeal, Johnson challenges the district court’s summary
judgment ruling on two grounds. First, she argues that the court
erred in concluding that she failed to demonstrate she was disabled.
Second, she contends that the district court erred in concluding
that she was not a “qualified individual” under the ADA,
42 U.S.C. § 12111(8). After careful review, we affirm.
1 Johnson also brought a handicap discrimination claim under the Florida Civil
Rights Act of 1992 (“FCRA”), Florida Statutes §§ 760.07, 760.10(1)(a), 760.11.
Because handicap discrimination claims under the FCRA are analyzed using
the same framework as disability claims under the ADA, we need not sepa-
rately address the FCRA claim.
See Greenberg v. BellSouth Telecomms., Inc.,
498 F.3d 1258, 1263–64 (11th Cir. 2007). It succeeds or fails for the same rea-
sons as the ADA claim.
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21-12696 Opinion of the Court 3
I. BACKGROUND
In 2014, Johnson injured her neck in a car accident. Her in-
juries included bulging and herniated discs in her cervical verte-
brae. One year later, Johnson began working for one of Disney’s
retail stores as a part-time retail cast member. In this position, her
responsibilities included assisting guests, operating the register,
stocking merchandise, and sorting inventory. It is undisputed that
the position required standing for two to three hours per shift.
When Johnson was hired, the store location where she worked,
Disney Springs, was undergoing extensive construction and reno-
vation. As a result, the store’s parking lot was closed. Employees,
including Johnson, were expected to park in a parking lot located
on the other side of the Disney Springs property and walk about a
mile to the store. Employees with a disability placard, however,
were permitted to park in a parking lot closer to Johnson’s assigned
work location.
During her work shifts, Johnson suffered from pain and
numbness in her right leg. She attributed this pain to her previous
car accident, the walk from the parking lot, and having to stand as
she worked.
After working at this job for about a week, Johnson spoke
with her store manager to discuss her pain. The store manager di-
rected her to submit a “Physician’s Certification for Employee Ac-
commodations Form” to Disney. Johnson completed the form, at-
taching a form from a physician. It is undisputed that she had the
following restrictions: she needed (1) a 15-minute seated break after
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4 Opinion of the Court 21-12696
standing for three hours and (2) a break after walking 100 yards.2
Ultimately, Disney placed her on medical leave and assigned her a
case advocate. While Johnson was on leave, her case advocate re-
viewed 18 jobs to determine whether Johnson could be reassigned.
In addition to the 18 jobs, Johnson inquired about a personalization
artist position; however, the position was seasonal, and Johnson’s
collective bargaining agreement did not permit her to be placed in
a seasonal position. She also inquired about a cast member ward-
robe position, but the position was not vacant. Johnson was not
reassigned to any position.
Instead, she remained on medical leave. Disney’s policy per-
mits employees to take a maximum of 12 consecutive months of
medical leave. After Johnson was on medical leave for more than
12 months, Disney sent her a letter advising that she would be ter-
minated unless she contacted the company with a date when she
could return to work. Johnson did not contact Disney and was ter-
minated.
Based on her termination, Johnson brought a disability dis-
crimination claim under the ADA. She alleged that she was disa-
bled because she suffered from pain from her spinal injuries that
substantially limited her ability to walk and stand and that, with
2 The parties disagree over whether the standing and walking restrictions
were two separate and distinct restrictions or, as Johnson argues, were inter-
twined, meaning Johnson could not stand for more than three hours
and then
walk for 100 yards. Resolving this dispute is unnecessary to our analysis; thus,
we decline further examination.
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21-12696 Opinion of the Court 5
reasonable accommodations, she was qualified to perform the es-
sential functions of a reassigned job.
Disney moved for summary judgment. The district court
granted the motion, ruling that Johnson failed to come forward
with sufficient evidence to show that (1) she was substantially lim-
ited in her ability to walk and stand and (2) she was a “qualified
individual” as defined by the ADA. Johnson moved for reconsider-
ation, and the district court denied her motion. Johnson appeals the
district court’s summary judgment order.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment
de
novo, viewing all evidence and drawing all reasonable inferences
in favor of the nonmoving party.
Hurlbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006). Summary judg-
ment is appropriate only “if the movant shows that there is no gen-
uine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). To avoid sum-
mary judgment, there must be sufficient evidence from which the
jury could reasonably find for the plaintiff; the existence of a scin-
tilla of evidence in support of the plaintiff’s position is insufficient.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). At the
summary judgment stage, initially Disney need only point out the
absence of a genuine issue of material fact.
See Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to Johnson
to go beyond the pleadings and “designate specific facts showing
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6 Opinion of the Court 21-12696
that there is a genuine issue for trial.”
Id. at 324 (internal quotation
marks omitted).
III. DISCUSSION
Johnson’s discrimination claim arises under the ADA. She
contends that the district court erred in concluding that she had not
made out a prima facie claim of ADA discrimination because she
was not (1) substantially limited in her ability to walk and stand or
(2) a qualified individual. Because Johnson failed to introduce evi-
dence showing that she was a qualified individual, we conclude
that the district court did not err in granting summary judgment
on her ADA claim.3
The ADA prohibits employers from discriminating against
qualified individuals on the basis of disability in regard to the dis-
charge of employees or other terms, conditions, and privileges of
employment. 42 U.S.C. § 12112(a). To establish a claim of discrim-
ination, an employee can show an employer’s intent to discrimi-
nate through direct or circumstantial evidence.
See Batson v. Sal-
vation Army, 897 F.3d 1320, 1328–29 (11th Cir. 2018). In the ab-
sence of direct evidence of an employer’s intent to discriminate, we
apply the burden-shifting
McDonnell Douglas framework.4
Id. at
3 Because we conclude that Johnson was not a qualified individual, we need
not decide whether the district court erroneously concluded that she also
failed to establish that she was disabled.
4
See generally McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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21-12696 Opinion of the Court 7
1328–29. Under this framework, the plaintiff has the initial burden
to establish a prima facie claim of disability discrimination.
Cleve-
land v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th
Cir. 2004).
To establish a prima facie claim of employment discrimina-
tion under the ADA, “a plaintiff must show that at the time of the
adverse employment action, she (1) had a disability, (2) was a qual-
ified individual, and (3) was subjected to unlawful discrimination
because of her disability.”
Batson, 897 F.3d at 1326. Under the
ADA, a qualified individual is one who “satisfies the requisite skill,
experience, education and other job-related requirements of the
employment position . . . and, with or without reasonable accom-
modation, can perform the essential functions of such position.”
29 C.F.R. § 1630.2(m);
see 42 U.S.C. § 12111(8).
If the plaintiff establishes a prima facie claim, we apply a pre-
sumption that discrimination occurred.
See Smelter v. S. Home
Care Servs. Inc., 904 F.3d 1276, 1288 (11th Cir. 2018) (applying such
a presumption in the Title VII context). “The burden then shifts to
the employer to rebut the presumption by articulating a legitimate,
nondiscriminatory reason for its actions.”
Id. If the employer meets
this burden of production, the presumption raised by the prima fa-
cie claim is rebutted, and the burden shifts back to the employee to
show that the employer’s proffered reason was actually a pretext
for illegal discrimination.
Id. At issue here is whether Johnson made
out a prima facie claim by establishing that she was a qualified in-
dividual. We agree with the district court that the answer is no.
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8 Opinion of the Court 21-12696
Johnson argues that the district court erred because she in-
troduced evidence showing that she was qualified for the personal-
ization artist position. Disney responds that Johnson was unquali-
fied for the personalization artist position for three reasons. First, it
asserts that she was not qualified for the personalization artist po-
sition because it was a seasonal position, and under the relevant
collective bargaining agreement, Disney could not place her into a
seasonal position.5 Second, it argues that the position required full-
5 Johnson also argues, for the first time on appeal, that the district court erred
by relying on the declaration of Christine Neuberg, a Disney Employee Rela-
tions Manager, in granting summary judgment. The Neuberg declaration re-
ferred to two external documents—a collective bargaining agreement and an
employee policy handbook—which Johnson maintains needed to be intro-
duced into the record. She argues that the references without the documents
themselves violated the best evidence rule. As an initial matter, she did not
object or raise this issue before the district court. Because we generally do not
consider arguments raised for the first time on appeal, and we see no excep-
tional circumstances to warrant disregarding this rule, we consider Johnson’s
argument abandoned.
See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1332 (11th Cir. 2004) (noting that arguments raised for the first time on appeal
are generally abandoned unless exceptional circumstances exist). But even if
we were to consider the issue, we would conclude that the use of the declara-
tion was not improper because at the summary judgment stage, “we may con-
sider . . . evidence which can be reduced to an admissible form” at trial.
Row-
ell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir. 2005);
see Fed. R. Civ. P.
56(c)(3). There is no indication that Disney could not produce the two docu-
ments at trial.
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21-12696 Opinion of the Court 9
time availability, and Johnson had only part-time availability.6
Third, it contends the position required training, which Johnson
was not able to complete while on a medical leave per company
policy. In the district court, Johnson offered no evidence to refute
any of Disney’s arguments; on appeal, she merely argues that Dis-
ney was aware of the personalization artist position and her interest
in the position. Thus, we conclude that the district court did not
err in determining that Johnson was not qualified for the personal-
ization artist position.7
IV. CONCLUSION
Because we conclude that the district court did not err in de-
termining that Johnson failed to demonstrate that she was a
6 Johnson argues that she was “ready, willing, and able to accept the schedul-
ing requirements” of the personalization artist position and directs us to por-
tions of her affidavit as evidence of her availability to work full-time. Appel-
lant’s Reply Brief at 18. But we see no indication in the affidavit that she was
available to work full-time.
7 Johnson argues on appeal that she also was qualified for her original job and
for a floral sales position. But she did not argue in the district court proceedings
that she was qualified for these positions.
See Access Now, Inc., 385 F.3d at
1332. In the district court proceedings, Johnson did argue that she was quali-
fied for a cast member wardrobe position. The district court rejected her ar-
gument, however, and concluded that she was not qualified for that position.
On appeal, Johnson has not argued that she was qualified for the position;
thus, she has abandoned this argument as well.
See Sapuppo v. Allstate Florid-
ian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (noting that issues not clearly
raised in the briefs are considered abandoned, even if properly preserved at
trial).
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10 Opinion of the Court 21-12696
qualified individual as defined by the ADA, we affirm the district
court’s order granting summary judgment to Disney.8
AFFIRMED.
8 To the extent that Johnson appeals the district court’s denial of her motion
for reconsideration, the district court did not abuse its discretion in denying
her motion for the same reasons it did not err in granting summary judgment.
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