John Oirya v. Mando American Corporation

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11429
Non-Argument Calendar
____________________
JOHN OIRYA,
Plaintiff-Appellant,
versus
MANDO AMERICAN CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 3:19-cv-00635-ECM-CWB
____________________
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2 Opinion of the Court 23-11429
Before ROSENBAUM, G RANT, and H ULL, Circuit Judges.
PER CURIAM:
Defendant Mando American Corporation (“Mando”)
terminated plaintiff John Oirya for sleeping on the job.
Subsequently, Oirya filed this action alleging that Mando failed to
accommodate his medical conditions that caused drowsiness and
retaliated against him for requesting an accommodation and
complaining about disability discrimination, all in violation of the
American Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
On appeal, Oirya challenges: (1) the magistrate judge’s order
denying Oirya’s second motion for leave to amend his complaint;
and (2) the district court’s order granting summary judgment in
favor of Mando on Oirya’s claims. After review of the parties’
briefs and the record, we dismiss Oirya’s appeal of the magistrate
judge’s denial of Oirya’s motion to amend because we lack
jurisdiction to review it. We affirm the district court’s grant of
summary judgment because Oirya failed to establish a prima facie
case as to his failure-to-accommodate or his retaliation claims.
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23-11429 Opinion of the Court 3
I. BACKGROUND1
A. Mando’s Employment Policies
Oirya worked at Mando as a training coordinator under the
supervision of April Regier, the corporate training supervisor.
When promoted to training coordinator, Oirya was given
Mando’s salary employee handbook. The handbook included an
ADA policy that (1) instructed employees to request an
accommodation for a disability by notifying Human Resources and
(2) reserved the right to request medical documentation. Similarly,
the handbook instructed employees to report discrimination or
retaliation to Human Resources.
The employee handbook also included a conduct policy that
stated, “Some examples of misconduct, which may result in
immediate termination, include, but are not limited to . . .
[s]leeping on the job.” Salaried employees were supposed to take
their lunch breaks around midday, and they could also take
comfort breaks throughout the day as needed. Comfort breaks
allowed employees to take a few moments to regroup, if needed.
It was acceptable for employees to sleep during their lunch break,
but not while working.
1 These are the summary judgment facts, construed in the light most favorable
to Oirya, as the non-moving party. See Batson v. Salvation Army, 897 F.3d 1320,
1322 (11th Cir. 2018).
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4 Opinion of the Court 23-11429
B. Oirya’s Medical Conditions Causing Drowsiness
Oirya suffered from several medical conditions, including
major depression and PTSD, for which he received treatment at
Columbus Psychological Associates. And Columbus diagnosed
Oirya with a sleep disorder. Oirya also had chronic bouts of
gastrointestinal problems, including food poisoning, stomach flu,
and severe stomach pains. Oirya maintained that he notified all of
his supervisors, including Regier, of these disabilities. As a result of
his conditions, Oirya sometimes had trouble sleeping at night and
then could not stay awake at work. To treat his symptoms, Oirya
took over-the-counter medications that also made him drowsy.
C. February 2, 2018: Oirya Disciplined for Sleeping on Job
In late 2018 and early 2019, Oirya’s supervisor Regier was
advised by Mando’s then-Human Resources manager, Darlene
Schumacher, that three Mando employees, Brandon Yoon, Kayte
Dulaney, and Felix Owen, had observed Oirya on multiple
occasions sleeping at his desk while not on a break. Because
sleeping on the job violated Mando’s conduct policy, Regier
decided to issue Oirya a “Last Chance Agreement,” a decision
approved by senior Human Resources manager, Gerald Wyatt.
At a February 2, 2018 meeting, Regier presented Oirya with
the Last Chance Agreement. In the Last Chance Agreement,
Regier noted that on February 1, 2018, Oirya was witnessed
violating Mando’s conduct policy “by sleeping on the job and
abusing [his] designation [sic] lunch period.” The Last Chance
Agreement stated that, in lieu of termination, Oirya was being
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23-11429 Opinion of the Court 5
placed under the terms of the Agreement and was required to
review and sign Mando’s conduct policy. The Last Chance
Agreement stated that Oirya’s continued employment was
contingent on following Mando’s policies for conduct and behavior
and would remain in effect for two years.
Oirya denied the accusations of the other Mando employees
that he had been sleeping on the job and challenged Regier to
produce evidence supporting the accusations. In response, Regier
conceded she had not investigated the accusations and did not have
evidence to prove them.
Oirya explained to Regier about his diagnosed medical
conditions and that he “took frequent breaks whenever [his]
medical disabilities were active, during which [he] took drowsy-
causing stomach flu capsules to manage [his] bouts of stomach flu
symptoms.” Oirya also told Regier he laid down on his back during
those breaks until his stomach pains subsided. Oirya said that these
accommodations—frequent breaks and lying down during
breaks—“enabled [him] to resume the essential functions and
responsibilities of [his] job.” Oirya pointed out that his prior
supervisors when he worked as an operator 2 at Mando had
“readily granted [him] the reasonable accommodation of breaks.”
Oirya refused to sign the Last Chance Agreement. Oirya
complained that it was “unfairly issued” and “devoid of any
meaningful due process” since Regier did not obtain his side of the
story and witness accounts. Oirya asked Regier to “grant [him] an
interactive process” before taking disciplinary action that included
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6 Opinion of the Court 23-11429
advanced notice in the form of a full written complaint, a “full
evidentiary hearing,” a written decision, and an opportunity to
appeal.
Oirya also asked for an opportunity to respond to the Last
Chance Agreement. Regier agreed and told Oirya she would place
his response in the file with the agreement.
D. February 9, 2018: Oirya’s Written Response to Discipline
A week later, on February 9, 2018, Oirya sent a written
statement to Regier explaining why he had not signed the Last
Chance Agreement. Oirya’s written explanation complained that:
(1) there was a lack of meaningful due process before the Last
Chance Agreement was issued; (2) the “alleged incident” was
protected by Mando’s ADA policy; and (3) the “prescribed
solutions were provided at the disciplinary meeting” rather than
when the employees’ reports of sleeping on the job were made and
could be investigated.
Oirya’s written explanation also stated that at the time of the
February 1 “alleged incident,” he “was suffering the effects of food
poisoning with stomach flu symptoms, due to having eaten
sandwiches that were ‘on sale’ at Walmart,” for which he had taken
flu capsules and antacid medication. Oirya maintained that
Mando’s ADA policy had “an inherent ‘accommodation for a
disability’ within it, in the form of breaks. Accordingly, the food
poisoning did not require [him] to ask for costly accommodation,
since the company-provided breaks are already provided for in this
policy.”
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23-11429 Opinion of the Court 7
Regier reviewed Oirya’s written explanation and gave a
copy to Human Resources managers, including Schumacher and
Wyatt, to review and to place it in Oirya’s file. Oirya’s written
explanation did not change Regier’s position on the propriety of
the Last Chance Agreement. Regier had received numerous
reports of Oirya sleeping on the job and did not believe she needed
to interview him before disciplining him. Regier also did not
believe Oirya’s sleeping caused by food poisoning was protected by
Mando’s ADA policy. In any event, Oirya had never asked Regier
“for an accommodation for a medical condition, additional breaks,
or any other changes to his job duties or responsibilities due to a
medical condition.”
Similarly, Schumacher did not consider Oirya’s written
explanation to be a request for an accommodation. Schumacher
read the written explanation as Oirya disagreeing with the Last
Chance Agreement and complaining that he was not interviewed
before being issued discipline. Schumacher said that Mando did
not require employees to be interviewed before being disciplined
and that it was not unusual for employees to be disciplined before
being interviewed. Like Regier, Schumacher did not think Oirya’s
food poisoning was a disability under the ADA, and Oirya never
asked for additional breaks due to his medical conditions.
E. April 2018: Oirya Sent Home for Food Poisoning
In April 2018, Oirya reported to Human Resources manager
Schumacher that he was not feeling well after eating at a pizza
buffet. Schumacher consulted with Regier and then sent Oirya
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8 Opinion of the Court 23-11429
home, telling him to return to work with a doctor’s note. Oirya
was treated at Auburn Urgent Care for stomach pains, diagnosed
with food poisoning, and prescribed Zofran and acidophilus
capsules.
F. December 3, 2018: Oirya Terminated for Sleeping on Job
In November 2018, Mando’s new Human Resources
manager, Audie Swegman, notified Regier that two Mando
employees, Shinae Pak and Beth Yates, had witnessed Oirya
sleeping on the job, and one of them had taken a photograph of
Oirya sleeping at his desk. In particular, after the lunch break, at
3:00 p.m., Pak observed Oirya sleeping for a long period of time at
his desk. Yates also observed Oirya sleeping, “laid back in his chair
at his desk,” and discussed it with Pak, who used her cell phone to
take the picture.2
Based on the employees’ reports and the photograph, Regier
and Swegman concluded Oirya had been sleeping on the job in
violation of Mando’s conduct policy. Regier told Swegman about
the Last Chance Agreement, and the two agreed that Oirya’s
termination was warranted. Before concurring in Regier’s
recommendation, Swegman reviewed Oirya’s personnel file,
including the Last Chance Agreement and Oirya’s written
explanation.
2 Oirya did not dispute that he was sleeping at his desk. When asked at his
deposition whether he fell asleep on the job in November 2018, Oirya said he
could not recall.
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23-11429 Opinion of the Court 9
On December 3, 2018, after obtaining approval from senior
Human Resources manager James Kendrick, Swegman and Regier
met with Oirya. Swegman notified Oirya that he was terminated
for sleeping on the job while on the Last Chance Agreement.
II. MOTION TO AMEND COMPLAINT
In September 2019, Oirya, proceeding with counsel, filed a
complaint alleging two ADA claims. Count I alleged that Mando
denied Oirya a reasonable accommodation for his disabilities of a
“sleep disorder that was a symptom of clinical major depression
and PTSD, and bouts of severe food poisoning and allergies.”
Count II alleged that Mando terminated Oirya in retaliation “for
requesting a reasonable accommodation, and for opposing or
protesting against unlawful disability discrimination” when he
complained to Mando about being deprived of the opportunity “to
confront the disability-related allegations” during the disciplinary
process.
The deadline to amend pleadings was April 9, 2020. On
November 24, 2020, seven months after the deadline, Mando filed
a first motion to amend his complaint to add two new ADA
claims—Count III alleging disparate treatment and Count IV
alleging wrongful termination. As to the disparate treatment claim
in Count III, Oirya’s proposed amended complaint alleged that a
“similarly situated” employee, Veronica Alfa, was accused of
sleeping on the job, and Mando treated her more favorably by
giving her a reasonable accommodation for her disability, which
required medication that caused drowsiness.
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The district court denied Oirya’s motion to amend his
complaint as untimely and concluded Oirya had offered “no good
cause for the delay.”
On March 14, 2021, Oirya filed a second motion for leave to
amend his complaint. This time, Oirya sought to add two claims
of gender discrimination under Title VII of the Civil Rights Act
based on employee Alfa’s more favorable treatment. Specifically,
Oirya’s proposed amended complaint alleged in Count III that he
received disparate disciplinary treatment from Alfa and in Count
IV that he was denied a reasonable accommodation that Alfa was
granted.
After briefing on Oirya’s second motion to amend
concluded, Oirya’s counsel filed a motion to withdraw, which the
district court granted. In the same order, the district court referred
the case to a magistrate judge pursuant to 28 U.S.C. § 636 “for all
pretrial proceedings and entry of any orders or recommendations
as may be appropriate.”
Thereafter, on January 14, 2022, the magistrate judge
entered an order denying Oirya’s second motion to amend his
complaint as untimely. The magistrate judge found that Oirya
lacked diligence in pursuing his proposed Title VII claims and had
not shown good cause for failing to seek leave to amend earlier.
Oirya did not appeal the magistrate judge’s order or otherwise
object to it in the district court.
On appeal, Oirya now challenges the magistrate judge’s
ruling on his second motion to amend, arguing that he
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23-11429 Opinion of the Court 11
demonstrated both diligence and good cause to excuse the
untimeliness of his motion.3 Before we can consider Oirya’s
arguments that the magistrate judge erred, we must determine that
we have jurisdiction to do so. See Peden v. Stephens, 50 F.4th 972,
977 (11th Cir. 2022).
We ordinarily have jurisdiction to review only decisions of
the district court that are “final.” 28 U.S.C. § 1291. This Court has
long held that when a magistrate judge is proceeding under the
supervision of the district court pursuant to § 636(b), its decisions
“are not final orders and may not be appealed until rendered final
by a district court.” Donovan v. Sarasota Concrete Co., 693 F.2d 1061,
1066-67 (11th Cir. 1982); see also United States v. Schultz, 565 F.3d
1353, 1359 (11th Cir. 2009) (“The law is settled that appellate courts
are without jurisdiction to hear appeals directly from federal
magistrates.” (quotation marks omitted)). Thus, where a party did
not appeal a magistrate judge’s order to the district court, we lack
jurisdiction to review the magistrate judge’s ruling on appeal. See
Schultz, 565 F.3d at 1362-63.
Here, the magistrate judge was proceeding under § 636(b)
when he denied Oirya’s second motion to amend his complaint.
Because Oirya did not challenge the magistrate judge’s January 14,
2022 order in the district court, the order is not final and appealable
under § 1291. We therefore lack jurisdiction to review the
magistrate judge’s order denying the second motion to amend and
3 On appeal, Oirya does not challenge the district court’s denial of his first
motion to amend as untimely.
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12 Opinion of the Court 23-11429
must dismiss Oirya’s appeal as to that ruling. See id.; Donovan, 693
F.2d at 1066-67.
III. SUMMARY JUDGMENT
On appeal, Oirya, proceeding pro se, argues the district court
erred in granting summary judgment to Mando on both his failure-
to-accommodate and retaliation claims under the ADA.4 We
address each claim in turn.5
A. Reasonable Accommodation Principles
The ADA prohibits an employer from discriminating against
an employee because of his disability. 42 U.S.C. § 12112(a). To
establish a prima facie case of discrimination under the ADA, a
plaintiff must show that (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., L.L.C., 492 F.3d
1247, 1255-56 (11th Cir. 2007). An employer unlawfully
discriminates against a disabled employee when it fails to provide
reasonable accommodations for known physical or mental
4 We have appellate jurisdiction to review the summary judgment ruling
because the district court adopted the magistrate judge’s report and
recommendation over Oirya’s objection. See Schultz, 565 F.3d at 1359-60
5 We review de novo a district court’s grant of summary judgment, “viewing
all the evidence, and drawing all reasonable factual inferences, in favor of the
nonmoving party.” Amy v. Carnival Corp., 961 F.3d 1303, 1308 (11th Cir. 2020)
(quotation marks omitted). Summary judgment is appropriate “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).
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23-11429 Opinion of the Court 13
limitations unless the accommodation would impose an undue
hardship on the employer’s business. Id. at 1262; 42 U.S.C.
§ 12112(b)(5)(A).
A reasonable accommodation is a modification or
adjustment that enables the employee to perform the essential
functions of the position. Frazier-White v. Gee, 818 F.3d 1249, 1255
(11th Cir. 2016); see also U.S. Airways, Inc. v. Barnett, 535 U.S. 391,
399-401 (2002). A reasonable accommodation depends on the
circumstances, but can include modifying work schedules or
policies. See 42 U.S.C. § 12111(9)(B); Barnett, 535 U.S. at 402-03;
Frazier-White, 818 F.3d at 1255.
“The employee has the burden of identifying an
accommodation and demonstrating that it is reasonable.” Frazier-
White, 818 F.3d at 1255. Further, an employer’s duty to provide a
reasonable accommodation is not triggered unless the employee
makes a specific demand for an accommodation. Gaston v.
Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir.
1999). If the employee provides this information, the employer
may need to “initiate an informal, interactive process” with the
employee to identify the employee’s limitations resulting from the
disability and determine the appropriate reasonable
accommodation. 29 C.F.R. § 1630.2(o)(3); Frazier-White, 818 F.3d
at 1257. However, absent a specific request for an accommodation
and a denial, “there can be no failure to accommodate under the
ADA.” Batson v. Salvation Army, 897 F.3d 1320, 1327 (11th Cir.
2018).
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14 Opinion of the Court 23-11429
B. Oirya’s Failure-to-Accommodate Claim
The district court did not err in granting summary judgment
to Mando on Oirya’s failure-to-accommodate claim. For purposes
of this appeal, we assume that Oirya met the first two prongs of a
prima facie case—that is, that Oirya’s medical conditions qualified
as a disability and that he was a “qualified individual” under the
ADA.
We agree with the district court, however, that Oirya did
not satisfy the third prong because he failed to present evidence
from which a jury could find that he made a specific demand for a
reasonable accommodation. And absent such a showing, Oirya did
not trigger Mando’s obligations to provide a reasonable
accommodation or to engage in an interactive process with him
and cannot prevail on his failure-to-accommodate claim.
In the February 2, 2018 meeting with Regier and in his
follow-up written explanation, Oirya explained that his medical
conditions and the medications he took sometimes made him
drowsy at work and that he managed his drowsiness by taking
frequent breaks. Oirya also explained that he sometimes had
gastrointestinal issues, which he managed by lying down on his
back during his breaks. But Oirya denied sleeping at his desk when
not on breaks and claimed that other Mando employees’ reports to
the contrary were false.
More importantly, Oirya did not request that Regier modify
any of Mando’s work or break policies and schedules, such as
asking for longer breaks or to be allowed to nap at his desk even
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23-11429 Opinion of the Court 15
when not on a break. In fact, Oirya maintained that he did not need
an accommodation from Mando because he was able to use the
breaks that Mando already provided to manage his symptoms
when they were active. In the February 2, 2018 meeting, Oirya
specifically advised Regier that what he was already doing—taking
frequent breaks and lying on his back during breaks—enabled him
to perform the essential functions of his job.
Instead, Oirya’s primary complaint to Regier was that it was
unfair for her to issue a Last Chance Agreement without first
investigating the employees’ (false) reports that he was sleeping on
the job and giving him a chance to defend himself. Contending he
was deprived of “meaningful due process,” Oirya asked Regier to
change Mando’s disciplinary procedures to provide him with
written notice of the complaints against him, a full evidentiary
hearing at which Oirya could present evidence and cross-examine
witnesses, and a chance to appeal the decision.
Oirya’s request to modify Mando’s disciplinary procedures
to give him due-process-type protections does not constitute a
request for reasonable accommodation under the ADA. A
reasonable accommodation is one that enables the employee to
perform the essential functions of his job. Holly, 492 F.3d at 1256;
see also 29 C.F.R. § 1630.2(o)(1)(ii) (defining “reasonable
accommodation” to mean modifications or adjustments that
enable an employee with a disability “to perform the essential
functions” of a position).
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Further, as part of the obligation to make a specific demand
for an accommodation, “an employee must link her disability to
her requested accommodation by explaining how the requested
accommodation could alleviate the workplace challenges posed by
her specific disability.” Owens v. Governor’s Off. of Student
Achievement, 52 F.4th 1327, 1333-34, 1335 (11th Cir. 2022) (involving
a failure-to-accommodate claim under Section 504 of the
Rehabilitation Act, which, in the employment context, applies the
same standards as an ADA claim). “[I]f an employee does not
require an accommodation to perform her essential job functions,
then the employer is under no obligation to make an
accommodation . . . .” D’Onofrio v. Costco Wholesale Corp., 964 F.3d
1014, 1022 (11th Cir. 2020).
Oirya’s requested modifications to Mando’s disciplinary
procedures were not ones that would alleviate workplace
challenges posed by his disability or enable him to perform the
essential functions of his job as a training coordinator. Rather, they
would enable Oirya to challenge Regier’s decision to discipline him
for what Oirya said were false reports of sleeping on the job.
Because, even under Oirya’s version of events, he did not make a
specific demand for an accommodation, Oirya failed to show
Mando denied him a reasonable accommodation or that Mando
had a duty to initiate an interactive process with him to determine
whether there was a reasonable accommodation. See Batson, 897
F.3d at 1327, Frazier-White, 818 F.3d at 1255, 1257; Gaston, 167 F.3d
at 1363.
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C. ADA Retaliation Principles
The ADA prohibits retaliation against an individual
“because such individual has opposed any act or practice made
unlawful [by the Act] or . . . made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under [the Act].” 42 U.S.C. § 12203(a).
When a plaintiff relies on circumstantial evidence, courts
evaluate an ADA retaliation claim using the same burden-shifting
framework applied to Title VII retaliation claims. Todd v. Fayette
Cnty. Sch. Dist., 998 F.3d 1203, 1219 (11th Cir. 2021). Under that
framework, the plaintiff must first establish a prima facie case of
retaliation. Batson, 897 F.3d at 1328-29. To establish a prima facie
case of retaliation under the ADA, the plaintiff must show that:
(1) he engaged in statutorily protected conduct; (2) he suffered an
adverse employment action; and (3) a causal connection exists
between the two. Id. at 1329.
Here, the parties agree that Oirya’s termination satisfied the
second element, but dispute whether Oirya presented evidence of
the other two elements of a prima facie case of retaliation.
As to the first element, an employee participates in protected
expression when he opposes a practice the ADA makes unlawful or
when he makes a request for a reasonable accommodation.
42 U.S.C. § 12203(a); Frazier-White, 818 F.3d at 1258. To establish
the first element, “it is sufficient that an employee have a good
faith, objectively reasonable belief that his activity is protected by
the [ADA].” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328
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(11th Cir. 1998), abrogated on other grounds by Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006).
As to the third causation element, the plaintiff need only
“prove that the protected activity and the adverse action are not
completely unrelated.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th
Cir. 2004) (quotation marks, ellipses, and brackets omitted). This
element is satisfied if the plaintiff “provides sufficient evidence of
knowledge of the protected expression and that there was a close
temporal proximity between this awareness and the adverse
action.” Id. (quotation marks and ellipses omitted). For temporal
proximity alone to be sufficient circumstantial evidence of a causal
connection, it “must be very close.” Id. (quotation marks omitted).
“If there is a substantial delay between the protected expression
and the adverse action in the absence of other evidence tending to
show causation, the complaint of retaliation fails as a matter of
law.” Id. This Court has concluded that a one-month period
between the protected activity and the adverse action was “not too
protracted,” but that “a three to four month disparity” was
insufficient to show a causal connection. Id.
D. Oirya’s Retaliation Claim
The district court did not err in granting summary judgment
to Mando because Oirya failed to present evidence establishing a
prima facie case of retaliation.
As to the first element, Oirya contends he engaged in
protected activity during the February 2, 2018 meeting with Regier
and in his February 9, 2018 written statement. As we have already
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23-11429 Opinion of the Court 19
explained, Oirya did not show that he asked for a reasonable
accommodation during these February 2018 interactions with
Regier. Thus, Oirya did not establish that he had engaged in
protected activity on that basis. See Frazier-White, 818 F.3d at 1258.
Opposing a practice that the ADA makes unlawful also
constitutes protected expression. See 42 U.S.C. § 12203(a). Oirya
contends he engaged in protected activity when he refused to sign
the Last Chance Agreement. Even assuming Oirya’s conduct—in
either the meeting or in his follow-up written explanation—
qualified under the ADA’s opposition clause, we agree with the
district court that Oirya did not present evidence establishing a
causal connection between his February 2018 conduct and his
December 3, 2018 termination. A span of ten months between
Oirya’s conduct and his termination, without more, is too
temporally remote to permit a reasonable inference that the two
were causally connected. See Higdon, 393 F.3d at 1220.
Finally, Oirya suggests that the act of taking a company-
provided break to manage disability-related symptoms is itself
protected activity under 42 U.S.C. § 12203(a) and that Mando
terminated him for taking such breaks. Oirya argues that
terminating an employee for exercising his ADA-protected rights
violates the ADA.
This argument ignores that there was no evidence that
Oirya requested additional breaks, was ever denied breaks, or was
terminated for taking breaks. Even Oirya’s evidence showed he
was terminated for sleeping on the job while under the Last
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Chance Agreement, not for taking breaks. In any event, Oirya’s
argument conflates an ADA interference claim under 42 U.S.C.
§ 12203(b) with an ADA retaliation claim under 42 U.S.C.
§ 12203(a). See 42 U.S.C. § 12203(b) (making it “unlawful to coerce,
intimidate, threaten, or interfere with any individual in the exercise
or enjoyment of, . . . any right granted or protected by” the ADA).
Oirya did not assert an ADA interference claim in the district court.
Even when viewing the facts in the light most favorable to
Oirya, a reasonable jury could not conclude that his termination
was causally connected to any activity protected under the ADA.
Because Oirya failed to establish a prima facie case, the district court
properly granted summary judgment to Mando on his retaliation
claim.
IV. CONCLUSION
In sum, we dismiss Oirya’s appeal of the magistrate judge’s
order denying his second motion to amend his complaint for lack
of appellate jurisdiction. We affirm the district court’s grant of
summary judgment in favor of Mando on Oirya’s failure-to-
accommodate and retaliation claims under the ADA.
DISMISSED IN PART, AFFIRMED IN PART.
USCA11 Case: 23-11429 Document: 17-1 Date Filed: 04/04/2024 Page: 20 of 20

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