Sobner Felix v. Key Largo Management Corp.

USCA11 Case: 21-10381 Date Filed: 10/29/2021 Page: 1 of 10

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-10381

Non-Argument Calendar

____________________

SOBNER FELIX,

Plaintiff-Appellant,

versus

KEY LARGO MANAGEMENT CORP.,

a.k.a. Ocean PR, Inc,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 4:19-cv-10067-JEM

____________________

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2 Opinion of the Court 21-10381

Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Like a bump to a spinning top, a major change in routine can

send people careening. The bump here was a shift in the house-

keeping schedule at Key Largo Management’s hotel. What toppled

was the employment relationship between tenured housekeeper

Sobner Felix and the hotel. Now Felix sues, claiming that KLM

failed to accommodate and wrongfully terminated him because of

a disability. On appeal we must decide whether Felix’s diabetic ret-

inopathy qualified as a disability under the Americans with Disabil-

ities Act when it impaired his vision to the point that night driving

was no longer safe. It did. We accordingly reverse the grant of

summary judgment to Key Largo Management.

I.

Before the scheduling change, KLM had employed Sobner

Felix as a housekeeper for well over a decade. During that tenure

Felix had worked the 8 a.m. to 4 p.m. day shift, making beds, clean-

ing, and removing trash. In 2016, KLM shifted to flexible schedul-

ing and began to ask Felix to work the other housekeeping shift

from 2 p.m. to 10 p.m. on some days. This created a problem for

Felix. He suffered from diabetic retinopathy, a condition that im-

paired his vision enough that it prevented him from driving at

night. And because he drove to work in Key Largo, Florida, from

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21-10381 Opinion of the Court 3

Homestead, Florida, working the later shift would require him to

commute home from the hotel in the dark.

To remedy this problem, Felix informed his supervisor Elsie

Rodriguez of his diabetic retinopathy and requested that she not

schedule him for the later shift. He provided her with a doctor’s

note that explained his condition and that asked KLM to schedule

him for day shifts so that he would not be pressed to drive home at

night.

Although KLM responded to Felix’s request and modified

his schedule, it did not return him exclusively to day shifts like he

wanted. Instead, KLM scheduled him to work reduced hours on

“mid-shifts,” such as from 12 p.m. to 7 p.m. KLM claims it also

permitted him to leave early—“whenever he needed to make it

home before dark.” Felix felt that these changes were insufficient.

He argued that the only viable shift was the day shift—on day shift

he could work a full eight hours and still commute home before

dark.

Felix and KLM dispute how his employment eventually

ended. As KLM tells it, Felix quit: One day, months after his re-

quest, Felix clocked in for work at 8 a.m. despite knowing he was

not scheduled until 12 p.m. Rodriguez confronted him, and he be-

came “super angry” and started “screaming.” Management asked

him to leave to deescalate the situation and warned him that they

would call the police if he refused. Then, although Rodriguez in-

structed him to return for his scheduled shift at 12 p.m., that day

and the rest of the week he skipped work. KLM explains that his

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4 Opinion of the Court 21-10381

employment ended at a follow-up meeting when he quit because

KLM refused to schedule him exclusively between 8 a.m. and

4 p.m.

But as Felix tells it, KLM fired him. Felix admits he clocked

in before his scheduled start that day, but he claims that when Ro-

driguez saw him working she fired him and told him that he had to

leave or she would call the police. Felix also denies quitting at the

follow-up meeting.

So Felix sued. He argued that KLM violated the Americans

with Disabilities Act (ADA) when it failed to accommodate him

and discriminated against him because of his diabetic retinopathy.

KLM moved for summary judgment on both claims. It argued that

Felix’s ADA claims failed because he did not provide evidence of

any disability. Felix responded that he had—pointing to two disa-

bilities: diabetes and diabetic retinopathy. Although his complaint

referred only to diabetic retinopathy, and never to diabetes, Felix

highlighted his deposition testimony and his physician Dr. Richard-

son-Armas’s declaration to show that he was diagnosed with dia-

betes the same month he requested to stay on the day shift.

The district court found that Felix was not disabled as de-

fined by the ADA and granted summary judgment for KLM. The

court concluded that neither diabetes nor diabetic retinopathy

were disabilities because they did not substantially limit any major

life activity. As the court construed it, Felix only argued that his

conditions prevented him from driving, which it concluded was

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21-10381 Opinion of the Court 5

not a major life activity. The court did not go on to address any of

the remaining elements of either ADA claim. Felix appealed.

II.

This Court reviews a grant of summary judgment de novo.

Tesoriero v. Carnival Corp., 965 F.3d 1170, 1177 (11th Cir. 2020).

We view “the evidence and all reasonable inferences drawn from

it in the light most favorable to the nonmoving party.” Id. Sum-

mary judgment is not proper unless the “moving party is entitled

to judgment as a matter of law.” Id.

III.

Felix must prove that he is disabled to bring either a failure

to accommodate or discriminatory termination claim under the

ADA. We analyze these ADA claims under the same burden-shift-

ing framework we apply to Title VII employment discrimination

claims. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255–56

(11th Cir. 2007). “To establish a prima facie case of discrimination

under the ADA, a plaintiff must show: (1) he is disabled; (2) he is a

qualified individual; and (3) he was subjected to unlawful discrimi-

nation because of his disability.” Id. Under this framework “an

employer's failure to reasonably accommodate a disabled individ-

ual” constitutes “unlawful discrimination.” Id. at 1262. In this ap-

peal we only address the one element at issue, whether Felix

showed that he had a disability.

One definition of “disability” under the ADA is “a physical

or mental impairment that substantially limits one or more major

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6 Opinion of the Court 21-10381

life activities.” 42 U.S.C. § 12102(1)(A). Congress revised and ex-

panded the scope of “disability” in 2009 when it passed the ADA

Amendments Act (ADAAA). Prior to the amendment the previous

text of § 12102 had not elaborated on the meaning of “substantially

limits” or “major life activities,” and the Supreme Court had inter-

preted the statute to impose “a demanding standard for qualifying

as disabled.” See Toyota Motor Mfg., Kentucky, Inc. v. Williams,

534 U.S. 184, 197 (2002); see also Sutton v. United Air Lines, Inc.,

527 U.S. 471, 482 (1999) (concluding the ADA excluded disabilities

that could be mitigated). The ADAAA changed the rule established

in Toyota Motor and Sutton, stating that “disability” should be

“construed in favor of broad coverage of individuals.”

§ 12102(4)(A); see Mazzeo v. Color Resols. Int'l, LLC, 746 F.3d

1264, 1267 (11th Cir. 2014). It also added a non-exhaustive list of

major life activities and expanded that category to include major

bodily functions. 1 § 12102(2). Any pre-amendment ADA case thus

applies a defunct standard for defining disability under § 12102, so

a court must always assess whether the ADAAA undercuts the

case’s reasoning before relying on it. Cf. Mazzeo, 746 F.3d at 1268.

1 Major life activities “include, but are not limited to, caring for oneself, per-

forming manual tasks, seeing, hearing, eating, sleeping, walking, standing, lift-

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

communicating, and working” as well as “the operation of a major bodily

function, including but not limited to, functions of the immune system, nor-

mal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,

circulatory, endocrine, and reproductive functions.” 42 U.S.C. § 12102(2).

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21-10381 Opinion of the Court 7

Felix argues that both his diabetic retinopathy and his diabe-

tes qualify as disabilities. We address each in turn below.

A.

Felix’s diabetic retinopathy qualifies as a disability because

he showed that it substantially limited his sight. To establish that

a physical or mental impairment like diabetic retinopathy “substan-

tially impairs” a “major life activity,” a plaintiff must explain (1) the

condition, (2) the pain or restriction it causes, and (3) how that pain

or restriction limits a major life activity. See Mazzeo, 746 F.3d at

1269. He must also provide enough evidence of “severity, fre-

quency, and duration” that a jury could assess the extent that the

impairment limits the major life activity. Lewis v. City of Union

City, 934 F.3d 1169, 1180 (11th Cir. 2019).

In Mazzeo, the plaintiff established that he had a disability

because he showed how and how much his condition limited a ma-

jor life activity. His treating physician explained that he suffered

from a “degenerative disc disease and a herniated disc.” 746 F.3d

at 1268–69. The physician described how these conditions re-

stricted Mazzeo’s “ability to walk, bend, sleep, and lift more than

ten pounds” because they triggered “pain radiating from the lum-

bar spine down Mr. Mazzeo’s right leg” that “increase[d] with pro-

longed sitting and standing.” Id.; see also EEOC v. St. Joseph’s

Hosp., Inc., 842 F.3d 1333, 1344 (11th Cir. 2016) (finding a disability

when spinal stenosis and a hip replacement caused pain that re-

quired the plaintiff to either use a cane or regularly stop and bal-

ance when walking).

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8 Opinion of the Court 21-10381

In contrast, the plaintiff in Lewis failed to establish a disabil-

ity because she never detailed the extent of her impairment. Lewis

argued that it was enough to show that her paroxysmal nocturnal

dyspnea caused periodic shortness of breath that affected her sleep-

ing and breathing. Lewis, 934 F.3d at 1180. But we disagreed, be-

cause Lewis provided no “evidence of the severity, frequency, and

duration of these episodes.” Id.; see also Munoz v. Selig Enters.,

Inc., 981 F.3d 1265, 1273 (11th Cir. 2020) (finding no disability be-

cause of the lack of “timing, frequency, and duration” details).

Felix’s evidence is much more like Mazzeo’s. Felix’s pri-

mary care physician, Dr. Richardson-Armas, explained that his ret-

inopathy was “caused by damage to the blood vessels of the light-

sensitive tissue at the back of the eye (retina).” She also clarified

that despite his condition “Felix could perform the essential func-

tions” of his work but that the retinopathy impaired his vision to

the extent that he was “unable to drive at night.” In his deposition

Felix testified that he visited the doctor because he “was having

trouble seeing at night.” He confirmed that the doctor cautioned

him not to drive because of his faulty night vision: “[S]ometimes I

can [see]; sometimes I cannot.” And unlike in Lewis, Felix detailed

the extent of his impairment. His ability to see to work but not to

drive at night serves as precise severity, frequency, and duration

evidence of the limits on his sight.

With this evidence, a reasonable jury could have concluded

that Felix’s sight was substantially impaired. Felix explained (1) his

diabetic retinopathy, (2) the damage to his retinas, and (3) the

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21-10381 Opinion of the Court 9

extent that this limited his sight. His diabetic retinopathy thus qual-

ifies as a disability.

B.

Felix also claims that his diabetes qualifies as a disability. But

he cannot base his ADA claims on diabetes at this stage because

that condition did not appear in his complaint. The complaint

stated that KLM discriminated against him because of one “medical

condition, diabetic retinopathy.” 2 Not until KLM motioned for

summary judgment—arguing that diabetic retinopathy was not a

disability—did Felix expand his argument to include diabetes. Only

then did he argue that he had two disabilities, “diabetes and reti-

nopathy,” and that diabetes qualified as a disability because it sub-

stantially limited his endocrine system, a major life activity.

Unfortunately for Felix, he needed to amend his complaint

to add this tardy claim. Plaintiffs cannot raise new claims in sum-

mary judgment filings. Flintlock Constr. Servs., LLC v. Well-

Come Holdings, LLC, 710 F.3d 1221, 1227–28 (11th Cir. 2013). Un-

der Federal Rule of Civil Procedure 15(a)(2), a party must request

and be granted leave to amend its complaint to add a new claim.

2 Nor did labeling retinopathy “diabetic” place diabetes into the complaint.

Though the two conditions are associated, they are distinct. Felix concedes as

much—he treats “diabetes and retinopathy” as separate impairments. And

even if we can infer that Felix had diabetes because he had diabetic retinopa-

thy, the complaint does not link the alleged discrimination to diabetes. It only

traces the discrimination back to retinopathy.

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10 Opinion of the Court 21-10381

Id. Because Felix never amended his complaint to include his dia-

betes claim, the court should not have considered it. 3 Nor will we.

* * *

Viewing the facts in the light most favorable to Felix, his di-

abetic retinopathy qualifies as a disability. We therefore REVERSE

the judgment of the district court and REMAND for further pro-

ceedings consistent with this opinion.

3 It is puzzling that the district court’s order assessed whether diabetes was a

disability but overlooked important changes wrought by the ADAAA. Felix

pointed out that endocrine function is a major life activity under the amended

statute, but the court did not address it. See § 12102(2)(B); see also 29 C.F.R.

§ 1630.2(j)(3)(iii). The order also relied on pre-ADAAA cases without consid-

ering how the ADAAA had since relaxed the standard. See, e.g., Collado v.

United Parcel Serv., Co., 419 F.3d 1143, 1155 (11th Cir. 2005) (concluding dia-

betes is not a disability because insulin injections reduce its limitations), over-

ruled by 42 U.S.C. § 12102(4)(E) (courts must disregard insulin’s mitigating ef-

fect). Courts must not revert to the old standard when the ADAAA applies.