Sally A. Perry v. The City of Avon Park, Florida

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14525
Non-Argument Calendar
________________________
D.C. Docket No. 2:14-cv-14223-JEM
SALLY A. PERRY,
Plaintiff -Appellant,
versus
THE CITY OF AVON PARK, FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 18, 2016)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 15-14525 Date Filed: 11/18/2016 Page: 1 of 15

-- 1 of 15 --

2
Sally Perry appeals the district court’s grant of summary judgment in favor
of the City of Avon Park on her claims under Title VII, 42 U.S.C. § 2000e, the Age
Discrimination in Employment Act, 29 U.S.C. § 633a, the Americans with
Disabilities Act, 42 U.S.C. §§ 12112–12114, and the Florida Civil Rights Act, Fla.
Stat. § 760.01 et seq. She asserts that the district court erred in granting summary
judgment on her ADA and FCRA claims because there was a genuine issue of
material fact as to her qualifications. She also argues that the grant of summary
judgment on her Title VII and ADEA claims was improper because she presented
evidence of her supervisor’s alleged dislike of women and older workers.
Following review of the record and the parties’ briefs, we affirm.
I
Ms. Perry began working for the City of Avon Park in 1999 as a meter
reader for the water department. In 2009, she was reassigned to an inventory
control position. In September of that year, the City hired Julian Deleon as the
Public Works Director. At the time of Mr. Deleon’s hiring, the City was in debt
$7.5 million and borrowing from its infrastructure funds to stay operational.
Mr. Deleon instituted significant changes. He cut several positions and
combined others, revising a significant number of job descriptions for City
employees. For example, he reduced trash pickup to one day per week and
assigned the sanitation workers other tasks, such as landscaping on the days they
Case: 15-14525 Date Filed: 11/18/2016 Page: 2 of 15

-- 2 of 15 --

3
were not collecting trash. As pertinent here, Mr. Deleon significantly altered Ms.
Perry’s position. Her job now consisted of outdoor activities like cleaning and
painting fire hydrants and the water maintenance facilities, as well as maintaining
hedges and shrubbery and pulling weeds. Mr. Deleon’s restructuring efforts
resulted in 50 of 103 City employees having their positions terminated.
Mr. Deleon was named City Manager in April of 2011. A short time prior to
Mr. Deleon’s promotion, in January of 2011, Ms. Perry was diagnosed with breast
cancer. Ms. Perry took time off to treat her illness. After successful treatment, she
returned to work, but had to continue taking medication.
In April of 2012, Mr. Deleon revised Ms. Perry’s job description and title to
reflect the outdoor work she had done the past three years. Her new title was
maintenance technician/assistant, and the updated job description stated that the
position consisted primarily of outdoor field work and limited indoor office duties.
Her tasks in this position were to perform field job functions associated with the
preventative maintenance of facilities in hot or cold weather.
In July of 2012, Ms. Perry sought temporary medical leave for mental health
reasons. She returned with a doctor’s note stating that she was not to work more
than four hours per day outside, and that she could not work in hot or cold
temperatures. When the City asked for clarification, the doctor responded that Ms.
Perry was to avoid direct sunlight, and was to work no more than four hours
Case: 15-14525 Date Filed: 11/18/2016 Page: 3 of 15

-- 3 of 15 --

4
outside in temperatures that were above 50 degrees but below 80 degrees. Ms.
Perry was given a thermometer and instructions to return to City Hall once the
temperature exceeded her threshold.
Because the City is located in South Florida, the temperature thresholds
were exceeded almost immediately. The City then inquired if there was any other
way that Ms. Perry could be accommodated to perform her previous tasks. Ms.
Perry’s doctor’s stated that there was no way for Ms. Perry to perform her previous
work unless the temperature conditions were met. Mr. Deleon considered Ms.
Perry’s duties and the restrictions set by her doctor, deemed that Ms. Perry was no
longer qualified to perform her previous work, and administratively terminated her
position.
II
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court and drawing all factual inferences
in the light most favorable to the nonmoving party. See Johnson v. Bd. of Regents,
263 F.3d 1234, 1242–43 (11th Cir. 2001). Summary judgment is appropriate when
“the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits . . . show that there is no genuine issue as to any
material fact and that the nonmoving party is entitled to judgment as a matter of
law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation
Case: 15-14525 Date Filed: 11/18/2016 Page: 4 of 15

-- 4 of 15 --

5
omitted). In order to overcome a motion for summary judgment, the nonmoving
party must present more than a mere scintilla of evidence supporting its position,
and instead must make a sufficient showing that a jury could reasonably find for
that party. See Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1162
(11th Cir. 2006).
III
Ms. Perry first argues that the district court erred in entering summary
judgment in the City’s favor on her ADA and FCRA claims. We review ADA and
FCRA disability-discrimination claims under the same framework, so we consider
both claims together. See D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1224
n. 2 (11th Cir. 2005).
Ms. Perry asserts that there was a genuine issue of material fact as to
whether she was qualified for the position she was terminated from. The record
does not support this claim.
The ADA provides that no covered employer “shall discriminate against a
qualified individual with a disability on the basis of disability in regard to . . .
discharge” and any of the “terms, conditions, and privileges of employment.” See
42 U.S.C. § 12112(a). Disability-discrimination claims brought under the ADA
and based on circumstantial evidence are generally examined under the burden
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
Case: 15-14525 Date Filed: 11/18/2016 Page: 5 of 15

-- 5 of 15 --

6
(1973). The plaintiff must first establish a prima facie case of discrimination by
showing that (1) she is a member of a protected class; (2) is qualified to perform
the job at issue with or without reasonable accommodation; (3) has suffered some
adverse employment action; and (4) was treated differently from someone outside
of her protected class. See Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012).
If the defendant provides a legitimate, non-discriminatory reason for its action, the
plaintiff must then show that the reason provided by the defendant was pretextual.
See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir.
2004).
The dispute here turns on whether Ms. Perry was qualified to perform her
job. Under the ADA, a qualified individual is a person with a disability who can,
with or without reasonable accommodation, perform the essential functions of the
employment position that the individual holds or desires. See D’Angelo, 422 F.3d
at 1229. An individual who cannot perform the essential job functions, even with
accommodation, is not qualified and therefore not covered under the ADA. See id.
Whether a particular job duty constitutes an essential function is a case-by-case
factual inquiry. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1258 (11th
Cir. 2007). We look to the employer’s judgment as to what functions of a job are
essential, including the written description of the position. Id. at 1257. We give the
employer’s view substantial, but not controlling, weight. Id. at 1258. We also
Case: 15-14525 Date Filed: 11/18/2016 Page: 6 of 15

-- 6 of 15 --

7
consult the ADA’s implementing regulations as a guide for what functions are
central to the performance of a job. See 29 C.F.R. § 1630.2(n) (describing factors
to consider in determining whether a job function is essential, including, the
employer’s judgment, the written job description, the amount of time spent on the
job performing the function, and the work experience of past incumbents in the job
or current incumbents in similar jobs).
The record demonstrates that Ms. Perry was not qualified for her position.
The written description for Ms. Perry’s job description stated as follows:
1) Inspects and restores City facilities by performing
preventative maintenance.
2) Maintains, enters data, orders materials relating to inventory.
3) Helps with non-complex office duties such as data entry and
answering phones, taking messages[.]
4) Helps coordinate field work as assigned by supervisor[.]
5) Performs routine inspection and preventive maintenance on
assigned equipment or city facilities and takes action to
correct.
6) Cleans and paints equipment.
7) Operates light and medium-sized equipment, including the
water truck.
8) Performs all duties in conformance to appropriate safety and
security standards.
The description also stated that Ms. Perry would perform additional work as
needed. See D.E. 65-2 at 8–9. This description was issued to Ms. Perry in April of
2012 and in October of 2012 at the request of her doctor. The duties listed are
consistent with the outside work she had been performing when her job changed in
Case: 15-14525 Date Filed: 11/18/2016 Page: 7 of 15

-- 7 of 15 --

8
2009. Only two of her eight duties involved indoor office work, indicating that the
majority of Ms. Perry’s work was performed outdoors.
Ms. Perry’s own deposition testimony demonstrates that her primary duties
as an employee took place outside doing manual labor. Ms. Perry testified that as
of March of 2012, she was assigned to work outside for more than two days in a
week. See D.E. 56-2 at 65. See also id. at 41 (“I had assignments for each day, and
they were all working outside.”). Mr. Deleon similarly stated in his sworn affidavit
that from October of 2009 forward, Ms. Perry’s position “primarily entailed
outside duties, with limited inside office duties or inventory control functions.”
D.E. 57 at 8. Any discrepancies concerning how much time Ms. Perry spent
outside during a given period are immaterial—both parties testified that since Mr.
Deleon was hired, Ms. Perry had spent most of her time performing physical labor
outside. Although Ms. Perry also helped out in the office on an “as needed” basis,
see D.E. 56-2 at 277, and on some weeks she spent half of her time indoors, see id.
at 64, that limited work did not negate the fact that the core of her duties consisted
primarily of outside work. The ability to perform outdoor work was therefore an
essential function of Ms. Perry’s position. See Holly, 492 F.3d at 1258–59.
Ms. Perry put forward two accommodations that she says would have
allowed her to perform her essential job functions. The first proposed
accommodation was to disregard her previous duties, and to assign her primarily
Case: 15-14525 Date Filed: 11/18/2016 Page: 8 of 15

-- 8 of 15 --

9
office tasks. This proposal, however, would have resulted in changing her job
description and eliminating one of her essential job functions, which the City was
not required to do. See D’Angelo, 422 F.3d at 1229–30. The second
accommodation was to follow her doctor’s restrictions—working a maximum of
four hours per day in temperatures that did not go below 50 degrees or above 80
degrees. As noted, however, the City is located in South Florida, where
temperatures often exceed 80 degrees year round. The City attempted to
accommodate these restrictions, but after three consecutive days of Ms. Perry
being unable to work, it determined that Ms. Perry would be unable to handle her
duties for any extended amount of time in the heat of the Florida sun. In short, the
accommodations recommended by Ms. Perry’s doctor proved to be unmanageable.
If those medical instructions were followed, Ms. Perry would not be able to
perform the essential functions of her job on a consistent basis. See D’Angelo, 422
F.3d at 1229 (“If the individual ‘is unable to perform an essential function of [her] .
. . job, even with an accommodation, [she] is, by definition, not a ‘qualified
individual’ and, therefore, not covered under the ADA. In other words, the ADA
does not require [the employer] to eliminate an essential function of [the
plaintiff’s] job.’”) (citation omitted).
We conclude that Ms. Perry was not qualified to perform the essential
functions of her job, even taking into account the proposed accommodations, and
Case: 15-14525 Date Filed: 11/18/2016 Page: 9 of 15

-- 9 of 15 --

10
therefore she did not make out a prima facie case of discrimination. Accordingly,
we affirm the district court’s entry of summary judgment on the ADA and FCRA
claims.
IV
With respect to her Title VII and ADEA claims, Ms. Perry asserts that
summary judgment was improper because there was evidence that Mr. Deleon
discriminated against her because of her gender and because of her age. We
disagree.
Title VII provides that it is unlawful for an employer “to . . . discriminate
against any individual . . . because of such individual’s . . . sex.” 42 U.S.C.
§ 2000e-2(a)(1). Similarly, under the ADEA it is unlawful for an employer to
discharge or otherwise discriminate against any employee who is at least 40 years
old on the basis of age. See 29 U.S.C. §§ 623(a)(1), 631(a).
Both Title VII and ADEA claims may be proven through either direct or
circumstantial evidence. Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th
Cir. 1997) (Title VII); Mazzeo v. Color Resolutions Intern., LLC, 746 F.3d 1264,
1270 (11th Cir. 2014) (ADEA). Where, as here, a plaintiff proffers circumstantial
evidence, we are again guided by the burden-shifting McDonnell Douglas
framework, which requires that the plaintiff first make a prima facie case in order
to trigger the defendant’s burden of articulating a legitimate, nondiscriminatory
Case: 15-14525 Date Filed: 11/18/2016 Page: 10 of 15

-- 10 of 15 --

11
reason for the adverse employment action. See Carter v. Three Springs Residential
Treatment, 132 F.3d 635, 642–43 (11th Cir. 1998) (Title VII); Mazzeo, 746 F.3d at
1270 (ADEA). If the employer satisfies this burden, then the employee must
provide sufficient evidence that the proffered reason is merely a pretext for
unlawful discrimination. See id.
In order to establish a prima facie case of discrimination under Title VII, a
plaintiff must show that she (1) is a member of a protected class; (2) was qualified
for the position; (3) suffered an adverse employment action; and (4) was “replaced
by a person outside [her] protected class or was treated less favorably than a
similarly-situated individual outside [her] protected class.” Maynard v. Bd. of
Regents of Div. of Universities of Florida Dep’t of Educ. ex rel. Univ. of S.
Florida, 342 F.3d 1281, 1289 (11th Cir. 2003). Similarly, a plaintiff may establish
a prima facie case under the ADEA by showing that (1) she was a member of the
protected group of persons between the ages of forty and seventy; (2) she was
subject to adverse employment action; (3) a substantially younger person filled the
position from which she was discharged; and (4) she was qualified to do that job.
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998). Age
discrimination claims also require that the plaintiff ultimately show that age was
the “but-for” cause of the adverse employment decision. See Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177 (2009).
Case: 15-14525 Date Filed: 11/18/2016 Page: 11 of 15

-- 11 of 15 --

12
The record evidence demonstrates that Mr. Perry was no longer able to
perform the objective duties of her position as a result of her medical condition.
Ms. Perry, however, was a “longtime employee” of the City and held her current
position for over a year before her discharge. Generally, “if a plaintiff has enjoyed
a long tenure at a certain position, we can infer that he or she is qualified to hold
that particular position.” Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1299
(11th Cir. 2015). Even assuming Ms. Perry established a prima facie case of age
and gender discrimination, however, she has failed to sufficiently demonstrate that
the City’s legitimate, non-discriminatory reason for her termination—that Ms.
Perry’s medical condition prevented her from fulfilling the essential functions of
her position—was pretextual.
Ms. Perry first argues that Mr. Deleon’s alleged statement to City employee
Richard Conklin that women do not belong in the workplace is direct evidence of
Mr. Deleon’s negative attitude toward women. See D.E. 65-4 (“I was in Mr. Julian
Deleon’s office talking to him, while he was contemplating on where to place a
female employee. He proceeded to tell me that ‘a woman’s place is in the home
taking care of children and not being in the work place.’”).
Direct evidence is evidence that, “if believed, would prove the existence of a
fact without inference or presumption.” Carter v. City of Miami, 870 F.2d 578,
581–82 (11th Cir. 1989). “[O]nly the most blatant remarks, whose intent could be
Case: 15-14525 Date Filed: 11/18/2016 Page: 12 of 15

-- 12 of 15 --

13
nothing other than to discriminate . . . will constitute direct evidence of
discrimination.” Damon v. Fleming Supermarkets Of Florida, Inc., 196 F.3d 1354,
1359 (11th Cir. 1999) (internal quotation marks and citation omitted). We have
generally held that “remarks unrelated to the decisionmaking process itself are not
direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1330 (11th Cir. 1998) (citing E.E.O.C. v. Alton Packaging Corp., 901 F.2d
920, 924 (11th Cir. 1990)). See also Dixon v. The Hallmark Companies, Inc., 627
F.3d 849, 854–55 (11th Cir. 2010) (comment—“You’re fired, too. You’re too
religious”—uttered by supervisor while terminating employees constituted direct
evidence of religious discrimination); Caban-Wheeler v. Elsea, 71 F.3d 837, 843
(11th Cir. 1996) (statement by black decisionmaker to white employee that he
wanted a black person to have the white employee’s job constituted direct evidence
that the employee was terminated for racially discriminatory reasons); Haynes v.
W.C. Caye & Co., 52 F.3d 928, 930–31 (11th Cir. 1995) (comments to female
employee that “women were simply not tough enough to do the job” from which
employee had been removed and that it would “require a man to do [that] job” was
direct evidence of gender discrimination).
Mr. Deleon’s alleged comment that women do not belong in the workplace
was not made in relation to Ms. Perry’s termination—indeed, it was made in 2009,
three years prior to his decision to fire Ms. Perry. Although this comment may
Case: 15-14525 Date Filed: 11/18/2016 Page: 13 of 15

-- 13 of 15 --

14
have reflected a gender bias generally, the finder of fact would be required to draw
further inference that Mr. Deleon’s sentiments expressed while determining the
placement of a female employee motivated his later decision to terminate Ms.
Perry. See Damon, 196 F.3d at 1359 (comment by supervisor immediately after
employee’s termination that the company “needed . . . aggressive young men . . . to
be promoted” required inference that interest in promoting young men motivated
decision to terminate employee) (emphasis in original); Burrell v. Bd. of Trustees
of Georgia Military Coll., 125 F.3d 1390, 1393 n. 7 (11th Cir. 1997)
(decisionmaker’s comment regarding his unwillingness to promote a female to the
second-highest office in management was not direct evidence because a factfinder
would have to draw inferences that decisionmaker also intended to later terminate
female employees because they were female).
Given this precedent, Mr. Deleon’s alleged statement does not constitute
direct evidence of discrimination. Nor does Mr. Deleon’s remark, by itself,
constitute sufficient circumstantial evidence to establish that the proffered reason
for termination was mere pretext for discrimination, particularly in light of the fact
that this statement was made three years prior to Ms. Perry’s termination in 2012.
In support of her ADEA claim, Ms. Perry cites to the City’s assertion that all
City employees laid off during Mr. Deleon’s restructuring within the Public Works
Department were male and most were younger than Ms. Perry. She argues that of
Case: 15-14525 Date Filed: 11/18/2016 Page: 14 of 15

-- 14 of 15 --

15
those six terminated employees specifically identified by the City, only one was
under the age of 40.
It is undisputed, however, that during Mr. Deleon’s tenure, he reduced the
City’s workforce from approximately 103 employees to less than 50 in 2013. Ms.
Perry’s implied pattern of age discrimination—based solely upon the City’s own
citation to its termination of five employees over the age of forty—without more,
is insufficient to establish pretext. Cf. Damon, 196 F.3d at 1361 (termination
within a one-year period of four older, highly experienced store managers out of a
total of seven managers, with each replaced by an employee under forty years old,
constituted probative circumstantial evidence of age discrimination, which was
further underscored by direct testimony).
Ms. Perry has failed to provide sufficient evidence that the City’s proffered
reason for her termination is merely pretext for gender or age discrimination.
Accordingly, we affirm the district court’s grant of summary judgment.
V
For the foregoing reasons we affirm the district court’s grant of summary
judgment.
AFFIRMED.
Case: 15-14525 Date Filed: 11/18/2016 Page: 15 of 15

-- 15 of 15 --