Weldon Williams v. Revco Discount Drug Centers, Inc.

Case: 13-11673 Date Filed: 01/14/2014 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-11673

Non-Argument Calendar

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D.C. Docket No. 4:11-cv-00027-WTM-GRS

WELDON WILLIAMS,

Plaintiff-Appellant,

versus

REVCO DISCOUNT DRUG CENTERS, INC.,

d.b.a. CVS Pharmacy Inc.,

Defendant-Appellee.

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Appeal from the United States District Court

for the Southern District of Georgia

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(January 14, 2014)

Before WILSON, KRAVITCH and ANDERSON, Circuit Judges.

PER CURIAM:

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Weldon Williams appeals from the district court’s grant of summary

judgment in favor of his former employer, Revco Discount Drug Centers, Inc.,

d/b/a CVS Pharmacy, Inc. (CVS), in his employment suit alleging: (1) disability

discrimination and retaliation under the Americans with Disabilities Act (ADA),

42 U.S.C. § 12101, et seq.; (2) violations of the Family and Medical Leave Act

(FMLA), 29 U.S.C. § 2601, et seq.; and (3) age discrimination under the Age

Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et seq. After a

thorough review of the record, we affirm.

Williams filed this employment action alleging that CVS failed to

accommodate his reasonable requests for assistance under the ADA, terminated

him despite his FMLA request, placed unreasonable demands on him before

allowing him to return to work, and treated younger pharmacists more favorably.

CVS moved for summary judgment, arguing that most of Williams’s claims

were time barred or unexhausted and that the timely and exhausted claims failed on

the merits. The district court granted CVS’s motion, finding that Williams’s ADA

claims failed because (1) he was not able to perform the essential functions of staff

pharmacist, (2) the accommodation Williams requested was not reasonable, and (3)

any claim of retaliation under the ADA was unexhausted. Addressing Williams’s

ADEA claim, the court concluded that it too was not exhausted, as Williams did

not include it in his EEOC charge. With respect to Williams’s FMLA claims, the

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court found that there was no merit to the interference claims because Williams

had been given leave, and there was no evidence to support a retaliation claim.

Williams now appeals, arguing that the court erred in concluding that he was

not a qualified individual under the ADA and that his requested accommodation

was unreasonable. He contends that the court failed to consider other

accommodations he requested or CVS’s obstruction of the interactive process. He

asserts that deposition testimony given by CVS employees raised questions of fact

as to CVS’s motivation. Finally, Williams argues that the court erred by rejecting

his retaliation claim.

As a preliminary matter, Williams offers no argument with regard to his

ADEA and FMLA claims on appeal.1 Thus, he has abandoned them. Rowe v.

Schreiber, 139 F.3d 1381, 1382 n.1 (11th Cir. 1998). Moreover, the district court

correctly determined that Williams’s ADA retaliation claim was unexhausted

because Williams failed to include this claim in his EEOC charge. Gregory v. Ga.

Dep’t of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004). Thus, the only issue

before us is Williams’s discrimination claim under the ADA.

We review the grant of a summary judgment motion de novo, construing the

facts in the light most favorable to the nonmoving party. Holly v. Clairson Indus.,

1

Williams’s passing reference to whether CVS obstructed the interactive process addresses the

motives of CVS employees in rejecting the medical evidence he submitted to show the necessary

accommodations under the ADA and is insufficient to preserve a claim under the FMLA.

Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

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LLC, 492 F.3d 1247, 1255 (11th Cir. 2007). A district court shall grant summary

judgment where the evidence shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law. Id.

We evaluate disability-discrimination claims under the McDonnell Douglas 2

framework, which requires the plaintiff to first establish a prima facie case of

discrimination. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193

(11th Cir. 2004). To make such a showing under the ADA, a plaintiff must prove

that (1) he is disabled; (2) he is a qualified individual; and (3) he was subjected to

unlawful discrimination because of his disability. Holly, 492 F.3d at 1255-56.

To show that he is a qualified individual, a plaintiff must show that he can

perform the essential functions of his position with or without reasonable

accommodations. Id. at 1256. Essential functions are “the fundamental job duties

of the employment position the [disabled employee] holds or desires.” 29 C.F.R.

§ 1630.2(n)(1). Whether a function of a position is essential is evaluated on a case-

by-case basis by examining a number of factors, including the employer’s

judgment of what it believes to be the essential functions, any written description

of the position, the amount of time spent on the job performing the function, and

the consequences of not requiring the employee to perform the function. D’Angelo

v. ConAgra Foods, Inc., 422 F.3d 1220, 1230 (11th Cir. 2005).

2

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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An accommodation is reasonable and necessary under the ADA only if it

will enable the employee to perform the essential functions of the job. Earl v.

Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). The employee has the

burden of identifying a reasonable accommodation. Id. at 1365. An

accommodation is not reasonable if it places an undue hardship on the employer.

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001).

“To determine the appropriate reasonable accommodation, it may be

necessary for [an employer] to initiate an informal, interactive process with the

qualified individual with a disability in need of the accommodation” to identify the

employee’s limitations and any possible accommodations. 29 C.F.R. §

1630.2(o)(3). “[A]n employer is not required to accommodate an employee in any

manner in which that employee desires.” Earl, 207 F.3d at 1367 (internal

quotation marks omitted). Nor does the ADA require an employer to eliminate an

essential function of an employee’s job or reallocate job duties to change the

essential functions of a job. Lucas, 257 F.3d at 1260; Earl, 207 F.3d at 1367.

Here, CVS does not dispute that Williams was disabled, thus the central

issue on appeal is whether Williams was a qualified individual who could perform

the essential job functions of a staff pharmacist with or without a reasonable

accommodation. Williams’s own deposition testimony indicates that he was not.

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During discovery, Williams acknowledged that his position involved

extended standing over the course of an eight-hour shift and frequent movement

around the pharmacy. And he admitted that he could not perform these essential

job functions without the accommodation of the full-time assistance of another

intern or technician. 3

The ADA did not require CVS to permanently provide Williams with full-

time technical support because this would require it to eliminate essential functions

of the staff pharmacist job as it existed and reallocate those functions to other

employees. Even though the record evidence shows that CVS had provided

Williams with technical support in the past, this did not make his request for

additional support from another CVS employee reasonable. Wood v. Green, 323

F.3d 1309, 1314 (11th Cir. 2003).

Finally, Williams’s claim that CVS “obstructed the interactive process” is

without merit. In his deposition, Williams admitted that his physician never

submitted any paperwork outlining the types of accommodations that Williams

might require, even though CVS sent Williams multiple e-mails and letters seeking

supporting medical documentation. Thus, Williams’s claim that CVS obstructed

the process is without merit.

3

Although Williams states that he requested other accommodations, he also clearly

communicated to CVS that he would only be able to perform his duties with the assistance of a

full-time pharmacy technician.

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AFFIRMED.

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