Scottie Lewis v. Georgia Power Company

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 8, 2023
• Docket: 22-11395
• Status: Unpublished

Opinion

USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 1 of 10

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-11395 Non-Argument Calendar ____________________

SCOTTIE LEWIS, Plaintiff-Appellant, versus GEORGIA POWER COMPANY,

Defendant-Appellee, ____________________

Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 1:19-cv-00173-LAG ____________________ USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 2 of 10

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Before NEWSOM, GRANT, and LUCK, Circuit Judges. PER CURIAM: Scottie Lewis appeals the summary judgment for his former employer, Georgia Power Co., on his discrimination and retalia- tion claims under the Americans with Disabilities Act. We affirm. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Lewis began working as a lineman at Georgia Power in 2001, and he held that same position until his termination in 2019. He also suffers from monocular vision: he has been blind in his right eye since the age of five. Lewis’s condition didn’t affect his ability to perform his work normally, but it did mean that he needed a medical examiner’s certification, plus a federal vision waiver, to obtain a commercial driver’s license (CDL). Georgia Power required all of its linemen to have a valid CDL to drive its company vehicles. To keep his CDL valid, Lewis needed to submit paperwork for his federal vision waiver every two years. Georgia Power considered a CDL as “essential” to a line- man’s job functions. Linemen did not necessarily drive a commer- cial vehicle every day, and whether any particular lineman needed to do so was “unpredictable.” It was uncommon that all four mem- bers of a line crew would need to drive vehicles to a job site. But various conditions could increase the need for more drivers: bro- ken electric poles, multiple simultaneous failures, severe storms, and the like. Lewis drove both a pickup truck and commercial ve- hicles as a lineman, but he only drove the commercial vehicles USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 3 of 10

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around four days per month. Still, Georgia Power required a valid CDL for linemen to drive even non-commercial vehicles, including a pickup truck, while on duty. Its policy permitted reasonable ac- commodations for a lineman who lost his CDL due to medical cir- cumstances. But Georgia Power would not offer modified job du- ties to an employee after more than one loss of a CDL for a non- medical reason. In 2007, Lewis’s CDL was suspended following a traffic cita- tion for driving under the influence of alcohol. Ten years later, in 2017, he lost his CDL for thirty days while he waited for the gov- ernment to approve the paperwork he’d submitted to renew his federal vision exemption. He asked Georgia Power to accommo- date him while his vision exemption was processed, and Georgia Power permitted him to work without driving a company vehicle for thirty days until his CDL was reinstated. Beverly Turner—then the supervisor of Georgia Power’s disability management depart- ment—helped Lewis fill out the accommodation paperwork, and she categorized his accommodation request as related to a medical circumstance. In 2019, Lewis’s vision exemption expired again—automati- cally suspending his CDL—because he didn’t submit paperwork in time for it to be approved. The day his CDL expired, Lewis asked his supervisor for the same accommodation he’d requested in 2017—to work without driving until his CDL was reinstated. This time, when Ms. Turner reviewed Lewis’s application for an accom- modation, she told Lewis’s supervisor that the failure to timely USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 4 of 10

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submit paperwork was not a medical issue. Georgia Power’s labor relations supervisor reviewed Lewis’s files and determined that Lewis’s 2017 accommodation had been “mishandled” as a medical issue because he lost his license for submitting paperwork too late, not because of his monocular vision. Lewis’s supervisor and other management then decided to terminate Lewis; his termination let- ter stated that he was being discharged for failing to maintain a valid CDL for non-medical reasons in 2007, 2017, and 2019. Lewis sued Georgia Power in 2019. He alleged that Georgia Power had violated the Americans with Disabilities Act through failure to reasonably accommodate his disability (count one), in- tentional discrimination on the basis of disability (count two), and retaliation against his request for an accommodation (count three). After discovery ended, Georgia Power moved for summary judg- ment. The district court granted summary judgment for Georgia Power. As to the intentional-discrimination and reasonable-ac- commodation claims, the district court concluded that Lewis was not a “qualified individual.” To be a qualified individual under the Americans with Disabilities Act, Lewis had to present summary judgment evidence that, with or without a reasonable accommo- dation, he could perform the essential functions of his job. But, the district court explained, the summary judgment evidence showed that having a valid CDL was an essential function of Lewis’s line- man job. His “failure to maintain his CDL made him unqualified for the position at the time of his termination.” USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 5 of 10

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As to the retaliation claim, the district court concluded that Lewis’s “adverse employment action—his termination—was caused not by a request for an accommodation, but by his own fail- ure timely to submit his vision exemption paperwork.” Lewis, the district court explained, “admitted during his deposition that he was not terminated in retaliation for requesting an accommoda- tion.” Lewis appealed the summary judgment for Georgia Power. STANDARD OF REVIEW We review de novo the district court’s grant of summary judgment, viewing the record in the light most favorable to the nonmoving party. Owens v. Governor’s Off. of Student Achieve- ment, 52 F.4th 1327, 1333 (11th Cir. 2022). Summary judgment is appropriate where “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). DISCUSSION Lewis alleged three counts in his complaint—(1) failure to accommodate his disability, (2) intentional discrimination against his disability, and (3) retaliatory discharge—all in violation of the Americans with Disabilities Act. We address the discrimination claims together first, then turn to the retaliation claim. USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 6 of 10

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Discrimination The Americans with Disabilities Act prohibits employers from taking adverse employment action “against a qualified indi- vidual on the basis of disability.” 42 U.S.C. § 12112(a). An em- ployer can violate section 12112(a) either by intentional discrimi- nation or by failing to make a reasonable accommodation for an employee’s disability. Id. § 12112(b)(5)(A); Lucas v. W.W. Grain- ger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). Under either theory of discrimination, a plaintiff must show that “he was a ‘qualified individual’ at the relevant time, meaning he could perform the es- sential functions of the job in question with or without reasonable accommodations.” Id. (citing Reed v. Heil Co., 206 F.3d 1055, 1061 (11th Cir. 2000). “If the individual is unable to perform an essential function of his job, even with an accommodation, he is, by defini- tion, not a ‘qualified individual’ and, therefore, not covered under the ADA.” Holly v. Clairson Indus., 492 F.3d 1247 (11th Cir. 2007) (quoting D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1229 (11th Cir. 2005)). “Whether a function is essential is evaluated on a case-by- case basis by examining a number of factors.” Lewis v. City of Un- ion City, 934 F.3d 1169, 1182 (11th Cir. 2019) (quoting D’Angelo, 422 F.3d at 1230). Those factors include “the employer’s judgment of whether a particular function is essential,” id., as well as: a “writ- ten job description prepared before . . . interviewing applicants for the job; the amount of time spent on the job performing the func- tion; the consequences of not requiring the employee to perform USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 7 of 10

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the function”; and whether the requirement applies to “past em- ployees in the job” or “employees in similar jobs.” Id. (quoting Sampson v. Fed. Exp. Corp., 746 F.3d 1196, 1201 (11th Cir. 2014)); see also 29 C.F.R. § 1630.2(n)(3). A job function can be essential even if an employer insists on it merely to improve its responsiveness to customers’ needs. In Davis v. Florida Power & Light Co., for example, the plaintiff worked for a power company that required its technicians to work overtime when necessary to restore power outages the same day they occurred. 205 F.3d 1301, 1303 (11th Cir. 2000). The plaintiff had suffered a back injury and sought a light duty schedule where he didn’t need to work overtime, but the power company sus- pended him for refusing to work the extra hours. Id. at 1304. We held that the plaintiff was not a qualified individual under the Americans with Disabilities Act because the ability to work over- time was an essential function of his job: the plaintiff agreed to it as a job requirement when he hired on, the power company relied on unpredictable overtime work to guarantee customers a same- day power restoration, and overtime work comprised a “substan- tial amount” of employees’ schedules. Id. at 1305. Because over- time was necessary to fulfill the plaintiff’s job requirements, we concluded that refusing to work overtime essentially amounted to refusing to show up for work. Id. at 1306. Here, having a CDL was an essential function of Lewis’s lineman job. Like the overtime requirement in Davis, Georgia Power’s company policy required its linemen to have a valid CDL. USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 8 of 10

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And, while driving a company vehicle was not necessary every day, it still comprised a “substantial amount” of Lewis’s job—some ten to twenty hours per week, and roughly four days per month driv- ing a commercial vehicle that Georgia law required a CDL to op- erate. Cf. Davis, 205 F.3d at 1305 (holding that two hundred hours of annual overtime—less than twenty hours per month—consti- tuted a “substantial amount” that weighed in favor of overtime be- ing an essential job function). As in Davis, Lewis’s supervisor tes- tified that it was unpredictable when all four linemen on a crew team would need to operate a vehicle at a job site. Finally, if a crew member didn’t have a CDL when he needed to drive, he needed to be replaced with another crew member, so the consequences of Lewis’s lack of a CDL meant that Georgia Power would need to pay someone else to cover for him. The district court correctly concluded that having a CDL was an essential function of Lewis’s job. Lewis argues that having a CDL was not an essential job function because he mostly drove a pickup truck, which he did not need a CDL to do under Georgia law. He doesn’t dispute that Georgia Power required a CDL for him to drive its pickup trucks, but he contends this requirement was “arbitrary” and thus not es- sential. But, as the district court correctly noted, “[f]ederal courts do not sit as a super-personnel department that reexamines an en- tity’s business decisions.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (marks omitted)). Lewis doesn’t USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 9 of 10

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argue that Georgia Power’s CDL requirement was itself discrimi- natory, and he wasn’t a “qualified employee” under the Americans with Disabilities Act when he was terminated. See Davis, 205 F.3d at 1305. The district court did not err in granting summary judg- ment on Lewis’s intentional-discrimination and reasonable-accom- modation claims. Retaliation In addition to prohibiting discrimination, the Americans with Disabilities Act protects disabled employees from retaliation on the basis of “oppos[ing] any act or practice made unlawful by” the Act. 42 U.S.C. § 12203(a). “To establish a prima facie case of retaliation, a plaintiff must show: (1) statutorily protected expres- sion; (2) adverse employment action; and (3) a causal link between the protected expression and the adverse action.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997) (emphasis omitted). We agree with the district court that there’s no genuine dis- pute that Lewis’s request for an accommodation was not the cause of his termination. Lewis admitted in his deposition that he was fired not because he requested an accommodation but because he could not get his paperwork in on time to renew his CDL. Lewis testified that he was not “terminated because [he] asked for more time to get [his] paperwork in.” Instead, Lewis agreed, he was “ter- minated because [he] couldn’t get [his] paperwork in.” Because Lewis hasn’t shown a genuine dispute that his request for an USCA11 Case: 22-11395 Document: 25-1 Date Filed: 02/08/2023 Page: 10 of 10

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accommodation caused his termination, he hasn’t shown a prima facie case of retaliation. AFFIRMED.