Nicola Hudson v. Tyson Farms, Inc.

Case: 18-10476 Date Filed: 04/29/2019 Page: 1 of 16

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-10476

Non-Argument Calendar

________________________

D.C. Docket No. 5:16-cv-00402-MTT

NICOLA HUDSON,

Plaintiff-Appellant,

versus

TYSON FARMS, INC.,

Defendant-Appellee,

OLIVIA MCCLELLAN,

Defendant.

__________________________

Appeal from the United States District Court

for the Middle District of Georgia

_________________________

(April 29, 2019)

Before WILSON, JORDAN, and BRANCH, Circuit Judges.

PER CURIAM:

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Nicola Hudson, a pro se plaintiff, appeals the district court’s grant of

defendant Tyson Farms, Inc.’s (“Tyson”) motion for summary judgment as to her

complaint alleging that Tyson discriminated against her in violation of the

Americans With Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C.

§ 12112(a). Hudson contends that the district court erred in determining that

(1) her back injury and asthma were not disabilities under the ADA, and (2) Tyson

did not fail to reasonably accommodate those disabilities.1 We affirm.

I. FACTUAL BACKGROUND

Hudson began working for Tyson as a tray packer in August 2015. Hudson’s

post-job offer health assessment showed that Hudson identified asthma and back

problems on her health assessment, but checked the box “No” when asked “Do you

have any work restrictions?” Prior to her Tyson employment, Hudson had been

employed as a Certified Nursing Assistant (“CNA”) at numerous skilled nursing

facilities.

Within her first week on the job, however, she complained of back pain to her

line leader. A day or two later, she was sent to the nurse’s station to discuss her back

complaints. The nurse on duty sent her home, and gave her a Job Placement Physical

1

Hudson originally listed a Tyson employee, Olivia McClellan, as an individual

defendant as well, but the district court later dismissed McClellan. Because Hudson does not

challenge that ruling on appeal, any issue in that respect is abandoned. Wilkerson v. Grinnell

Corp., 270 F.3d 1314, 1322 (11th Cir. 2001).

2

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Recommendations form to be filled out by her personal doctor. Hudson did not

mention her asthma to the nurse.

Tyson had mats and stands spread out throughout the plant, available for

employees to use. Hudson could alleviate her back pain by placing a floor mat on

the concrete floor to stand on, and was able to use a mat and stand during all of her

shifts except for part of one shift on September 9, 2015, when she was unable to find

any available. She requested Tyson assign her a specific mat and stand, but Tyson

declined to do so because there were not enough mats and stands for every employee.

Hudson testified that she saw her personal doctor, Dr. Oliver, on September

11, 2015. He imposed restrictions limiting the amount of time she could stand, and

required her to sit for 15 minutes for every hour of standing. After she returned to

work that evening with Dr. Oliver’s restrictions, Tyson told her that it would be

unable to accommodate those restrictions.

She then went to see another doctor, Dr. Inhulsen, and requested that he

remove Dr. Oliver’s restrictions and recommend instead that she use two floor mats

and a stand. She also requested an inhaler from Dr. Inhulsen. 2 Dr. Inhulsen’s

examination of Hudson determined that her back was “normal” with “full range of

motion, no costovertebral angle tenderness, no kyphosis, no scoliosis, [and] normal

2

She previously received medication for her asthma, but had not previously required an

inhaler.

3

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exam of spine.” He released her to work with no restrictions. Dr. Inhulsen’s notes

also state that Hudson requested that Dr. Inhulsen recommend she use two floor mats

and a stand while at work.

Hudson returned to work on September 15 with Dr. Inhulsen’s note, which

stated that she could return to work without any restrictions and recommended that

she use a stand and two floor mats. This time, Tyson said she could return to work,

and that she could use floor mats and a stand, which were available to employees

throughout the facility. Because Tyson had insufficient mats, however, it was still

unable to assign Hudson a specific mat and stand.

Later that same day, Hudson asked her line leader if she could leave her station

to use her inhaler, stating that the ammonia in the plant was aggravating her asthma.

The line leader instructed her to wait until her lunch break, which was in

approximately 10 minutes. She finished her shift, but did not come back to work the

next day. On September 17, she called Tyson and told them she would not be

returning.

After leaving Tyson, Hudson returned to her work as a CNA.

On September 6, 2016, Hudson filed the present suit against Tyson, alleging

that Tyson violated her rights under the ADA by failing to accommodate her

disabilities. Specifically, in her pro se complaint, she alleged that she was forced to

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resign in September 2015 after Tyson was unable to accommodate her back injury

and asthma.

Tyson, in turn, answered, denying liability and asserting certain defenses.

Following discovery, Tyson moved for summary judgment. The district court

granted Tyson’s motion, which Hudson timely appealed.

II. STANDARD OF REVIEW

We review a district court’s entry of summary judgment de novo. Hallmark

Developers, Inc. v. Fulton Cty., Ga., 466 F.3d 1276, 1283 (11th Cir. 2006).

However, we will not consider issues raised for the first time on appeal which were

not raised in the district court. Access Now, Inc. v. Southwest Airlines Co., 385

F.3d 1324, 1331 (11th Cir. 2004).

A court shall grant summary judgment “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). In determining whether there is a genuine

dispute of material fact, “[t]he evidence of the non-movant is to be believed, and

all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986). Although pro se pleadings are liberally construed,

a pro se litigant is still required to establish that there is a genuine issue of material

fact in order to avert summary judgment. Brown v. Crawford, 906 F.2d 667, 670

(11th Cir. 1990).

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III. ADA LEGAL STANDARDS

The ADA prohibits discrimination against a qualified individual on the basis

of disability. 42 U.S.C. § 12112(a). The ADA also imposes upon employers an

affirmative duty to provide reasonable accommodations for known disabilities,

unless doing so would result in undue hardship on the operation of the business.

42 U.S.C. § 12112(b)(5)(A).

The burden-shifting analysis applicable to Title VII also applies to ADA

claims of intentional disability discrimination. Hilburn v. Murata Elec. N. Am.,

Inc., 181 F.3d 1220, 1226 (11th Cir. 1999). “To establish a prima facie case of

discrimination under the ADA, a plaintiff must show: (1) [she] is disabled; (2)

[she] is a qualified individual; and (3) [she] was subjected to unlawful

discrimination because of her disability. Holly v. Clairson Indus., LLC, 492 F.3d

1247, 1255–56 (11th Cir. 2007). A plaintiff can show she is disabled by proving

she has “a physical or mental impairment that substantially limits one or more [of

her] major life activities.” 42 U.S.C. § 12102(1). In order to determine if Hudson

is disabled, this Court applies a three-step approach: (1) “we consider whether [the

alleged disability] was a physical impairment”; 3 (2) “we identify the life activity

3

A physical impairment is “[a]ny physiological disorder or condition, cosmetic

disfigurement, or anatomical loss affecting one or more body systems, such as neurological,

musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and

endocrine.” 29 C.F.R. § 1630.2(h).

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upon which [the plaintiff] relies . . . and determine whether it constitutes a major

life activity”; 4 and (3) “we ask whether the impairment substantially limited the

major life activity.” Bragdon v. Abbott, 524 U.S. 624, 631 (1998). See also

Rossbach v. City of Miami, 371 F.3d 1354, 1357 (11th Cir. 2004).

IV. WHETHER HUDSON’S BACK INJURY AND ASTHMA ARE

DISABILITIES UNDER THE ADA

We consider Hudson’s back injury and asthma claims in turn and find that,

as to both claims, Hudson failed to prove that she was disabled. Hilburn, 181 F.3d

at 1226.5

a. Back Injury

Regarding her back injury, we first consider whether Hudson identified a

physical impairment. Bragdon, 524 U.S. at 631. While Dr. Oliver recommended

work restrictions, he provided no medical diagnosis of back pain or its cause. More

telling is Dr. Inhulsen’s superseding examination of Hudson, which determined that

her back was “normal” with a “full range of motion.” Dr. Inhulsen, at Hudson’s

4

“Major life activities include, but are not limited to: [c]aring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting,

bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,

interacting with others, and working.” 29 C.F.R. § 1630.2(i)(1)(i).

5

The ADA also imposes upon employers an affirmative duty to provide reasonable

accommodations for known disabilities, unless doing so would result in undue hardship on the

operation of the business. 42 U.S.C. § 12112(b)(5)(A). Hudson does not challenge, or appeal,

the district court’s conclusions that she has no past record of a disabling impairment, nor did

Tyson regard her as having such an impairment. Additionally, Hudson does not challenge the

district court’s dismissal of her “constructive discharge” claim. Accordingly, any issues in these

respects are abandoned. Wilkerson, 270 F.3d at 1322.

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request, removed Dr. Oliver’s work restrictions and returned Hudson to work with

no back injury-related restrictions in place.

Hudson’s only evidence lies in her own subjective complaints of back pain

and related limitations. Nevertheless, Hudson did testify in her deposition to a few

ways in which her back limited her. Taking that testimony, and her subjective

complaints of pain, in a light most favorable to her, we acknowledge that she may

have demonstrated the existence of a physical impairment by testifying to a

“physiological disorder or condition . . . affecting [her] . . . musculoskeletal” system.

29 C.F.R. § 1630.2(h).

“A physical impairment, standing alone, however, is not necessarily a

disability as contemplated by the ADA.” Gordon v. E.L. Hamm & Assocs., Inc., 100

F.3d 907, 911 (11th Cir. 1996). We thus turn to the other Bragdon considerations

to determine whether Hudson has identified a major life activity and “whether the

impairment substantially limited the major life activity.” Bragdon, 524 U.S. at 631.

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Here, the major life activity identified by Hudson is working.6 Working is a

major life activity, 7 so we must consider whether Hudson’s back injury substantially

limited her from working. A plaintiff claiming that she is substantially limited in the

major life activity of working must establish that her condition significantly restricts

her ability to perform either a class of jobs or a broad range of jobs in various classes

as compared to the average person having comparable training, skills, and abilities.

Rossbach, 371 F.3d at 1359. An impairment does not substantially limit the ability

to work merely because it prevents a person from performing either a particular

specialized job or a narrow range of jobs. Id. When making the “substantially

limits” determination, we consider the manner in which the individual is limited in

the activity as compared to the general population, and may consider the difficulty,

effort, or time required to perform a major life activity as well as the length of time

for which the individual can perform the activity and the pain experienced. Mullins

v. Crowell, 228 F.3d 1305, 1314 (11th Cir. 2000).

6

The district court also considered Hudson’s allegations that her back injury substantially

limits her ability to sleep, bend, play with her son, and run, and found that “from the evidence, a

reasonable jury could not find that Hudson’s back pain substantially limits her in these activities

in comparison to the abilities of an average person. Hudson does not challenge the district

court’s decision on these grounds and, because we affirm on “major life activity of working”

grounds, Rossbach, 371 F.3d at 1359, we need not consider these allegations. Evans v. Georgia

Reg’l Hosp., 850 F.3d 1248, 1253 (11th Cir.) (“[W]e may affirm on any ground supported by the

record, regardless of whether that ground was relied on or considered below.”).

7

“[M]ajor life activities include, but are not limited to . . . working.” 42 U.S.C.A. §

12102(2).

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Here, the record demonstrates that, even if Hudson’s back pain is considered

an impairment, it does not substantially limit her ability to work. Hudson has held

a variety of jobs since she was first injured in 2010 and returned to a job as a

certified nursing assistant after she left employment with Tyson. Likewise, Hudson

testified in her deposition that normal day-to-day bending did not typically bother

her, and she presented no evidence of any difficulty walking. See Rossbach, 371

F.3d at 1357; Mullins, 228 F.3d at 1314. Tellingly, Hudson also returned to her

work at Tyson with no restrictions after Dr. Inhulsen concluded that her back was

“normal” with a “full range of motion.” Finally, the record suggests only that

Hudson was unable to work at Tyson due to her inability to stand on concrete for

long periods of time without moving around. However, this does not prove that her

“condition significantly restricts her ability to perform either a class of jobs or a

broad range of jobs in various classes as compared to the average person having

comparable training, skills, and abilities.” Rossbach, 371 F.3d at 1359. Hudson

cannot claim that she was substantially limited in the major life area of working.

Overall, Hudson has failed to prove that her back injury is a disability under

the ADA. Hilburn, 181 F.3d at 1226.

b. Asthma

Likewise, Hudson’s asthma claim fails for the same reasons that her back

injury claim fails. The only evidence supporting this claim is Hudson’s own

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testimony that the ammonia at the Tyson plant aggravated her asthma. But, again,

Hudson failed to specify any major life activity that her asthma affects. 8 Bragdon,

524 U.S. at 631. Nor has she provided any evidence that her asthma “substantially

limited” a major life activity. Id. Thus, Hudson has failed to prove that her asthma

qualifies as a disability under the ADA.

V. REASONABLE ACCOMMODATIONS

Discrimination under the ADA also includes the failure to make a reasonable

accommodation to the known physical or mental limitations of the individual. 42

U.S.C. § 12112(b)(5)(A). An employer’s failure to provide reasonable

accommodation to a disabled individual is itself discrimination, and the plaintiff

does not bear the additional burden of showing that the employer intentionally

acted in a discriminatory manner toward its disabled employees. Holly, 492 F.3d

at 1262.

The plaintiff bears the burden both to identify an accommodation and to

show that it is reasonable. Willis v. Conopco, Inc., 108 F.3d 282, 284–86 (11th

Cir. 1997). “The term ‘reasonable accommodation’ may include . . . acquisition or

modification of equipment or devices . . . and other similar accommodations for

individuals with disabilities.” 42 U.S.C. § 12111(9)(B).

8

Hudson may not now claim that her asthma substantially limited her ability to breathe,

as she never raised the claim before the district court.

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a. Back Injury

As a threshold matter, Hudson’s failure to identify any work restrictions on

the health assessment she completed after receiving a work offer from Tyson is

significant. See, e.g., U.S. Equal Emp. Opportunity Comm’n, EEOC Enforcement

Guidance on Reasonable Accommodation and Undue Hardship Under the

Americans with Disabilities Act (Oct. 17, 2002) (“If the individual with a disability

states that s/he does not need a reasonable accommodation, the employer will have

fulfilled its obligation.”). While she identified prior back issues, she did not identify

them as creating the need for a work restriction, so Tyson was unaware that a

reasonable accommodation would be required. Hudson was nevertheless allowed to

use the mats and stands available throughout the facility. Thus, when Hudson first

requested that a specific mat and stand be assigned to her and Tyson refused, that

refusal was reasonable given that Hudson did not have a known disability and had

not identified a work restriction that required an assigned mat and stand. 9

After meeting with Drs. Oliver and Inhulsen, Hudson again requested an

assigned mat and stand, which Tyson again refused because there were not enough

for every employee. This refusal was reasonable because, although Dr. Oliver

identified work restrictions, those restrictions were removed by Dr. Inhulsen. And,

9

It was also generally unnecessary, given that Hudson testified she was only unable to

locate a mat and stand for part of one shift—a situation that occurred prior to her accommodation

request.

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while Dr. Inhulsen recommended the use of a mat and stand, his evaluation did not

conclude that Hudson could not work without a mat or stand.10 It is well-settled

that, where an employee has requested an accommodation, the employer “is not

required to accommodate an employee in any manner in which that employee

desires.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285

(11th Cir. 1997). The employer is only required to offer reasonable

accommodations based on the circumstances. Id.

Moreover, Tyson still allowed her to use a mat and stand, which were

readily available throughout the facility. The only “refusal” on Tyson’s part was a

refusal to guarantee Hudson a specific mat and stand. Under the circumstances,

this refusal was reasonable, as Hudson’s doctor had returned her to work with no

restrictions and there were not enough mats and stands to assign one to Hudson.

See Gaston, 167 F.3d at 1363–64 (affirming summary judgment in favor of

employer because the record indicated that the plaintiff did not refuse a reasonable

request for accommodation). Thus, even if we considered Hudson’s back injury to

be a disability, her claim would still fail because the evidence shows that Tyson did

not fail to provide reasonable accommodation for Hudson’s back injury.

10

Hudson’s argument that Tyson unreasonably refused to restructure her job or work

schedule or reassign her to a vacant position fails because it was not raised in the district court.

See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (“This

Court will not consider issues raised for the first time on appeal that were not raised in the

district court below.”). In any event, Hudson has failed to show that she requested this

accommodation. Gaston, 167 F.3d at 1363–64; Access Now, Inc., 385 F.3d at 1331.

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b. Asthma

The duty to provide a reasonable accommodation is not triggered under the

ADA unless a specific demand for an accommodation has been made by the

employee. Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363–64

(11th Cir. 1999). “Only after the employee has satisfied this burden and the

employer fails to provide that accommodation can the employee prevail on a claim

that her employer has discriminated against her.” Id. at 1364. Under Stewart, an

employer is not liable where it did “not obstruct an informal interactive process;

ma[de] “reasonable efforts to communicate with the employee and to provide

accommodations based on the information it possesse[d]; and where the

employee’s actions caused the breakdown in the interactive process.” 117 F.3d at

1287 (emphasis added).

As for her asthma claim, we cannot say that Hudson made a specific

accommodation request for her asthma. Hudson only asked her line leader, on her

last day on the job, if she could take a break to use an inhaler. The request was

denied for only a short period of time, and she did not pursue the matter any further

once the line leader denied her request. Gaston, 167 F.3d at 1363-64. Hudson’s

request was just “the first step in an informal, interactive process between the

individual and the employer.” U.S. Equal Emp. Opportunity Comm’n, EEOC

Enforcement Guidance on Reasonable Accommodation and Undue Hardship

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Under the Americans with Disabilities Act (Oct. 17, 2002).11 After Hudson

requested a break to use her inhaler, she completed that day’s work, but never

returned to work at Tyson. Even if we determined that this one request to a line

leader was a sufficient request for an accommodation under the ADA, Hudson

caused a breakdown in the interactive process by abruptly quitting the next day—

before Tyson had a chance to adequately respond.

Thus, even if we considered Hudson’s asthma to be an ADA disability, her

asthma ADA claim fails because she never identified an accommodation or an

unreasonable failure to accommodate on the part of Tyson.

Lastly, although Hudson views her situation as a constructive discharge and

argues that Tyson forced her to leave, it is undisputed that Hudson quit after one

inhaler request to her line supervisor. Hudson deprived Tyson of the opportunity

to engage in the interactive accommodations process.12 The evidence does not

support Hudson’s allegations that Tyson denied her request and thereby

constructively discharged her employment. Hudson’s departure unilaterally

11

“The employer and the individual with a disability should engage in an informal

process to clarify what the individual needs and identify the appropriate reasonable

accommodation. The employer may ask the individual relevant questions that will enable it to

make an informed decision about the request. This includes asking what type of reasonable

accommodation is needed. The exact nature of the dialogue will vary.” U.S. Equal Emp.

Opportunity Comm’n, EEOC Enforcement Guidance on Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act (Oct. 17, 2002). Under this Court’s

precedent, “[l]iability simply cannot arise under the ADA when . . . the employee’s actions cause

a breakdown in the interactive process.” Stewart, 117 F.3d at 1287.

12

That process may have required her to provide medical evidence of her asthma so

Tyson could determine if her medical condition met the ADA definition of “disability.”

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terminated any attempts at an interactive ADA-accommodations process with

Tyson. Based on the facts provided, we cannot conclude that Hudson was

constructively discharged.

VI. CONCLUSION

In sum, Hudson has failed to demonstrate that she has a disability under the

ADA because neither her alleged back injury nor her asthma meets the

requirements of an ADA disability. Furthermore, Hudson has not provided

evidence that Tyson unreasonably refused to accommodate either of her alleged

disabilities. The district court correctly granted summary judgment in this case.

Accordingly, we affirm.

AFFIRMED.

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