Kyle Bosarge v. Mobile Area Water & Sewer Service

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-14298

Non-Argument Calendar

____________________

KYLE BOSARGE,

Plaintiff-Appellant,

versus

MOBILE AREA WATER & SEWER SERVICE,

SHARON KING,

FATIMA WASHINGTON,

Defendants-Appellees.

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2 Opinion of the Court 20-14298

____________________

Appeal from the United States District Court

for the Southern District of Alabama

D.C. Docket No. 1:18-cv-00240-TFM-N

____________________

Before JILL PRYOR, LUCK, and JULIE CARNES, Circuit Judges.

PER CURIAM:

Plaintiff appeals the district court’s order granting summary

judgment to Defendants on his employment discrimination and re-

taliation claims arising under the Americans with Disabilities Act

(“ADA”) and on his First Amendment retaliation claim. After a

careful review of the record and briefs, we affirm in part and re-

mand in part.

BACKGROUND

Defendant Mobile Area Water and Sewer Service

(“MAWSS”) is a public entity that does business in Mobile County,

Alabama. MAWSS hired Plaintiff Kyle Bosarge to fill an Auto Ser-

vice Worker (“ASW”) I position in June 2013 and promoted Plain-

tiff to an ASW II position in July 2014. MAWSS garage supervisor

Charles Sumrall supervised Plaintiff in both ASW positions. De-

fendants Sharon King and Fatima Washington were, at all relevant

times, MAWSS Human Resources (“HR”) officers.

Plaintiff was diagnosed with multiple sclerosis (“MS”) in

2000. In September 2015, Plaintiff requested Family and Medical

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20-14298 Opinion of the Court 3

Leave Act (“FMLA”) intermittent leave for occasional absences and

tardiness related to his MS. In support of Plaintiff’s request, his

treating physician, Dr. Terry Millette, submitted an FMLA form to

MAWSS in October 2015 certifying that Plaintiff had a serious

health condition (MS), which caused episodic flare-ups that period-

ically prevented Plaintiff from performing his job functions and re-

quired him to be absent from work. Based on the information pro-

vided by Dr. Millette on the October 2015 form, MAWSS granted

Plaintiff’s request for intermittent FMLA leave.

In May 2016, MAWSS posted a job vacancy for a Vehicu-

lar/Equipment Mechanic position with the Mobile County Person-

nel Board.1 As described in the posting, the duties of the Mechanic

position included, among other things: inspecting, maintaining,

and repairing MAWSS vehicles, test driving vehicles to ensure

proper operation, operating a tow truck when necessary, and mak-

ing repairs to vehicles in the field as necessary. As minimum and

special requirements of the position, the posting listed: (1) comple-

tion of an apprenticeship or trade school program in automotive or

diesel repair, (2) one year’s journeyman level experience in mainte-

nance and repair, (3) knowledge of a variety of engines, systems,

repair methods, and standard mechanics practices, and (4) a com-

mercial driver’s license (“CDL”) or a valid state driver’s license and

1 As a public entity operating in Mobile County, MAWSS is required to fill its

job vacancies through postings with the Mobile County Personnel Board.

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4 Opinion of the Court 20-14298

the ability to obtain a CDL with appropriate endorsements, includ-

ing an air brake endorsement.

Plaintiff applied for the Mechanic position, which would

have been a promotion from the ASW II position he held at the

time. After reviewing his application, the Personnel Board deter-

mined that Plaintiff was not qualified for the promotion because he

did not meet the minimum prior experience requirements listed in

the Mechanic vacancy posting. The Mechanic vacancy initially

closed without being filled, but it was reopened on June 16, 2016,

to give Plaintiff an opportunity to update his application materials.

Plaintiff submitted a revised application that included additional in-

formation about his prior work experience, and the Board certified

him as qualified for the Mechanic position and referred him to

MAWSS for possible promotion. Sumrall, Plaintiff’s supervisor,

recommended that Plaintiff receive the promotion.

While Plaintiff was applying for the Mechanic position, HR

officer Washington learned about Plaintiff’s MS diagnosis and the

FMLA paperwork he had filed in October 2015. 2 Based on the in-

formation provided by Dr. Millette in the October 2015 FMLA

form—which described Plaintiff’s symptoms as including

2 Because FMLA requests were handled by a different section of MAWSS’s

Human Resources department, Washington had been unaware of Plaintiff’s

October 2015 FMLA leave application until after Plaintiff applied for the Me-

chanic position in 2016.

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20-14298 Opinion of the Court 5

extremity weakness, fatigue, dizziness, and balance problems,

among other things—Washington became concerned about Plain-

tiff’s ability to safely drive MAWSS vehicles while at work. Driving

was occasionally required in the ASW II position Plaintiff held at

the time, and more frequently required in the Mechanic position

Plaintiff had applied for.

To address her concerns, Washington requested an updated

FMLA form from Dr. Millette in late June 2016. Dr. Millette re-

sponded on July 17, 2016 with an FMLA form indicating that Plain-

tiff had a permanent condition (MS) that caused him to experience

heat intolerance, as well as episodic symptoms of vision loss, fa-

tigue, and “extremity weakness with spasticity” that occurred

every three to six weeks and lasted three to five days per episode.

Based on this new information about Plaintiff’s symptoms and

their frequency, Washington determined that it was hazardous—

both to Plaintiff and to his co-workers and the general public—for

Plaintiff to drive MAWSS vehicles while at work. Plaintiff was ad-

vised on August 9, 2016 that he was no longer permitted to drive

at work or to operate any of MAWSS’s vehicles or drivable equip-

ment. Defendants sent Plaintiff a letter on August 19, 2016 that

formalized the driving restriction and explained that the restriction

had been imposed for Plaintiff’s safety and to protect MAWSS from

liability resulting from a possible accident.

Defendants accommodated Plaintiff in his ASW II job by re-

moving all driving duties from that position and allowing Plaintiff

to use a fan at work and take breaks as needed to address his heat

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6 Opinion of the Court 20-14298

intolerance, but they determined that Plaintiff was not qualified for

promotion to the Mechanic position. According to Defendants,

driving is an essential function of the Mechanic position, and Plain-

tiff’s driving restriction cannot be reasonably accommodated in

that position. As mentioned, the job posting for the Mechanic po-

sition lists “test driving vehicles” and “operating a tow truck” as job

duties and requires a qualified applicant to have a valid driver’s li-

cense and be able to obtain a CDL. Consistent with the job posting,

Sumrall testified that Mechanics are required to drive vehicles and

equipment in the ordinary course of performing their essential du-

ties, which include: diagnosing problems with and test-driving ve-

hicles and equipment in the field, testing repairs in the garage and

in the field, driving or otherwise transporting vehicles from the

field to the garage for additional repairs if necessary, and respond-

ing to the location of emergencies such as sewer line backups and

water line breaks.

Plaintiff argues that the driving restriction Defendants im-

posed on him was not based on objective medical information, but

rather on Washington and King’s misperceptions about his MS di-

agnosis. In support of his argument, Plaintiff cites a letter, purport-

edly written by Dr. Millette on October 20, 2016, stating that Plain-

tiff was “currently doing well” and that he had “no restrictions from

his job duties or driving.” Unlike Dr. Millette’s prior communica-

tions regarding Plaintiff, the October 2016 letter was not sent by

Dr. Millette directly to MAWSS, and there is no evidence that

Washington, King, or any other HR employee received it.

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20-14298 Opinion of the Court 7

Washington and King both deny receiving the letter, which is di-

rected “To Whom it May Concern” with no listed addressee.

Plaintiff testified in his deposition that he gave the letter to Sumrall,

and we assume that is true for purposes of this appeal. 3 But Plaintiff

admitted that he did not take the letter to HR or put it in interoffice

mail, that he never discussed the letter with HR or asked whether

Washington, King, or any other HR employee had received it, and

that he did not know what Sumrall did with the letter after Plaintiff

handed it to him.

Plaintiff also argues that Defendants could have accommo-

dated his driving restriction in the Mechanic position in the same

manner that they accommodated the restriction in the ASW II po-

sition. According to Plaintiff, Defendants could have promoted

him to the Mechanic position and temporarily diverted his driving

responsibilities in that position to other employees during his epi-

sodic MS flare-ups. Alternatively, Plaintiff argues that Defendants

could have permanently removed his driving responsibilities in the

Mechanic position, with “minimal disruption.”

Between July and December 2016, Plaintiff repeatedly com-

plained to Sumrall and other MAWSS garage supervisors that the

driving restriction and his disqualification from the Mechanic posi-

tion were discriminatory. There is evidence that at least some of

Plaintiff’s complaints were relayed to Washington and King, alt-

hough Plaintiff does not clearly set out in his appellate brief the

3 Sumrall denies receiving the October 2016 letter.

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8 Opinion of the Court 20-14298

dates that occurred. Nevertheless, and despite his complaints,

Plaintiff continued in his ASW II job at MAWSS without incident

for several months after he was disqualified from the Mechanic po-

sition in August 2016.

On November 10, 2016, garage supervisor Norman Rollo

asked Plaintiff to complete a repair on Rollo’s personal vehicle in

the MAWSS garage. According to Plaintiff, he and his MAWSS co-

workers had a custom and practice of performing such personal re-

pairs, which Plaintiff claims were permitted by MAWSS policy so

long as the repairs were not done during work hours. Plaintiff

claims that other MAWSS employees—including the employee

who assisted Plaintiff with Rollo’s repair—engaged in such per-

sonal work in the MAWSS garage on occasion. Plaintiff completed

the repair to Rollo’s personal vehicle on November 10, 2016, as re-

quested.

On the next day, November 11, 2016, Plaintiff was involved

in an incident that resulted in the theft of MAWSS property by

Plaintiff’s co-worker, Tim Turner. Prior to the theft, Plaintiff had

pulled a pair of windshield wiper blades from the MAWSS garage

in anticipation of completing a repair on Turner’s work vehicle.

Turner subsequently was caught and disciplined for stealing the

windshield wiper blades. As part of Turner’s disciplinary process,

Washington reviewed a surveillance video of the incident in late

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20-14298 Opinion of the Court 9

November 2016. 4 The video showed Plaintiff pulling the wind-

shield wiper blades without noting their removal in MAWSS’s in-

ventory system and placing them in a garage bay door where

Turner later retrieved the blades, unsuccessfully tried to conceal

them in his pants leg, and ultimately wrapped them in his jacket

while leaving the garage—all in Plaintiff’s presence.

After Washington reviewed the surveillance video of the in-

cident involving Turner, Defendants engaged the outside investi-

gation company ARCAS Investigations to conduct a targeted inves-

tigation of Plaintiff. As requested by Defendants, ARCAS reviewed

surveillance videos of Plaintiff’s activities in the MAWSS garage

during the relevant time frame and reported its findings to MAWSS

in early December 2016. ARCAS’s report suggested that Plaintiff

had aided Turner’s theft of the windshield wiper blades on Novem-

ber 11, 2016, and that he had also performed a personal repair (the

repair requested by Rollo) using MAWSS materials and while on

MAWSS time on November 10, 2016. Based on the report,

MAWSS scheduled a disciplinary hearing for Plaintiff on January

26, 2017. The hearing was rescheduled for February 9, 2017 per

Plaintiff’s request, so Plaintiff could retain an attorney.

Meanwhile, on February 6, 2017, Plaintiff filed an EEOC

charge alleging disability discrimination and retaliation in violation

of the ADA. The EEOC notified MAWSS of the charge on

4 Turner was placed on administrative leave because of the theft, and he sub-

sequently retired.

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10 Opinion of the Court 20-14298

February 9, 2017. This was the same date as Plaintiff’s rescheduled

disciplinary hearing, but there is no evidence that Washington,

who coordinated Plaintiff’s hearing and assisted with the presenta-

tion of evidence against him, or any other individual on Plaintiff’s

three-person disciplinary hearing panel, was aware of Plaintiff’s

EEOC charge at the time of the hearing on February 9, 2017.

Plaintiff raised issues of discrimination, retaliation, and dis-

parate treatment during his February 9 disciplinary hearing, but ev-

idence also was presented during the hearing indicating that:

(1) Plaintiff had pulled the windshield wiper blades that Turner

stole on November 11, 2016 without noting their removal in

MAWSS’s inventory system, and he had observed Turner trying to

conceal the windshield wiper blades in his pants leg and then leav-

ing the MAWSS garage with them and (2) Plaintiff had made a re-

pair to Rollo’s personal vehicle on November 10, 2016 while on

MAWSS time and using MAWSS materials. Based on the evidence

presented during the hearing, the hearing panel determined that

Plaintiff had violated Personnel Board rules regarding conduct un-

becoming a public employee and neglect of duty, and it recom-

mended that Plaintiff be suspended for fifteen days without pay.

Plaintiff appealed the suspension to the Personnel Board, ar-

guing that the discipline was excessive and retaliatory. Specifically,

Plaintiff claimed that the suspension was imposed in retaliation for

his internal complaints about disability discrimination. After a de

novo hearing, the Board denied Plaintiff’s appeal and upheld his

suspension. In support of its decision, the Board cited evidence

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20-14298 Opinion of the Court 11

presented during Plaintiff’s disciplinary hearing that: (1) Plaintiff

had “repaired [a personal vehicle] for Rollo’s private benefit while

working on MAWSS time using public facilities” and materials con-

trary to MAWSS policy and (2) Plaintiff had stood by and watched

while his co-worker Turner “brazenly concealed the [windshield]

wipers [taken from MAWSS] first in his pants leg, then in his

jacket.” The Board concluded that Plaintiff’s unpaid suspension

was an appropriate sanction because, although Plaintiff had been

recognized as a good employee in the past, he had in these two

recent instances “conduct[ed] personal work on public time” and

“divert[ed] publicly purchased materials to further personal inter-

ests” in violation of Board rules.

Plaintiff claims that Defendants restructured his duties in

September 2017, limiting him to small-engine repairs and seques-

tering him in the small-engine room. Then, in October 2017, Plain-

tiff received an unsatisfactory service rating, resulting in his loss of

a merit raise. It is undisputed that Plaintiff’s unsatisfactory service

rating in October 2017 reflected—and was based solely on—his dis-

ciplinary suspension. Plaintiff responded by filing a second EEOC

charge and, subsequently, his complaint in this case.

In his complaint, Plaintiff asserts claims for disability dis-

crimination and retaliation in violation of the ADA, and a claim for

retaliation in violation of the First Amendment. 5 Plaintiff asserted

5 Plaintiff’s complaint includes numerous other claims, including claims for

disability discrimination and retaliation under § 504 of the Rehabilitation Act,

ADA interference claims, an unauthorized medical inquiry claim under the

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12 Opinion of the Court 20-14298

his discrimination and retaliation claims against MAWSS and

against Washington and King individually.6 Washington and King

moved to dismiss Plaintiff’s claims asserted against them individu-

ally on the ground of qualified immunity. Defendants subse-

quently moved for summary judgment as to all of Plaintiff’s claims.

In connection with the summary judgment motion, Defendants

moved to strike Plaintiff’s affidavit filed in response to their motion

for summary judgment. The district court converted Washington

and King’s motion to dismiss to a motion for summary judgment

and, after striking Plaintiff’s affidavit in part, granted summary

judgment to Defendants on all the claims asserted by Plaintiff.

Plaintiff appeals the court’s ruling on the motion to strike, as well

as its ruling on the summary judgment motions.

ADA, a § 1983 claim for failure to supervise and train in violation of the Four-

teenth Amendment, and state law claims for negligent supervision and train-

ing and invasion of privacy. The district court granted summary judgment on

these claims, and Plaintiff did not raise the district court’s ruling on these

claims as an issue for appeal in his opening appellate brief. Accordingly, Plain-

tiff has waived his appeal of these claims, and we will not consider them. See

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (not-

ing that an appellant abandons a claim that he fails to “specifically and clearly”

identify in his opening brief as an issue on appeal).

6 Plaintiff also asserted claims against Washington and King in their official

capacity as MAWSS Human Resources officials, but those claims merge with

his claims against MAWSS. See Lewis v. Clarke, __U.S.__, 137 S. Ct. 1285,

1290–91 (2017) (“[L]awsuits brought against employees in their official capac-

ity represent only another way of pleading an action against an entity of which

an officer is an agent[.]” (citation and quotation marks omitted)).

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20-14298 Opinion of the Court 13

DISCUSSION

I. Plaintiff’s Affidavit Testimony

Plaintiff submitted an affidavit in his summary judgment re-

sponse in which he stated, in relevant part, that he saw Sumrall

place Dr. Millette’s October 2016 letter in an envelope and then put

the envelope in the “inbox” that was the customary way of deliv-

ering documents to HR. Defendants moved to strike this state-

ment under the sham affidavit rule, which allows a court to disre-

gard affidavit testimony that “flatly contradicts” the affiant’s “own

prior deposition testimony for the transparent purpose of creating

a genuine issue of fact where none existed previously.” See Fur-

cron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1306 (11th Cir.

2016). Plaintiff argues that the district court erred by granting the

motion to strike, and that the error interfered with his ability to

show that Defendants had notice in October 2016 that Plaintiff was

medically cleared to drive.

A. Standard of Review

We review the district court’s decision to strike Plaintiff’s af-

fidavit testimony for an abuse of discretion. See id. at 1304 (noting

that, as with other evidentiary decisions, this Court reviews a dis-

trict court’s decision to exclude affidavit testimony under the sham

affidavit rule for an abuse of discretion). A district court abuses its

discretion when its ruling is based on “a clearly erroneous finding

of fact, an errant conclusion of law, or an improper application of

law to fact.” See id. (citation and quotation marks omitted). We

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14 Opinion of the Court 20-14298

will thus affirm the district court’s ruling as to Plaintiff’s affidavit

testimony unless the court “made a clear error of judgment” or

“applied an incorrect legal standard.” See id. (citations and quota-

tion marks omitted).

B. Analysis

We find no abuse of discretion here. The district court cor-

rectly set out the applicable law, citing authority for the principle

that the sham affidavit rule applies only in “a limited manner to

exclude unexplained discrepancies and inconsistencies, as opposed

to” ambiguities that “create an issue of credibility or go to the

weight of the evidence.” See id. at 1306 (citation and quotation

marks omitted). See also Van T. Junkins & Assocs., Inc. v. U.S.

Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984) (“When a party has

given clear answers to unambiguous questions which negate the

existence of any genuine issue of material fact, that party cannot

thereafter create such an issue with an affidavit that merely contra-

dicts, without explanation, previously given clear testimony.”).

The district court repeatedly emphasized that affidavit testimony

must “directly contradict” the affiant’s deposition testimony—ra-

ther than merely clarifying or supplementing the prior testimony—

to be excluded under the sham affidavit rule.

Applying the sham affidavit rule as set forth above, the dis-

trict court denied Defendants’ motion to strike more than thirty

paragraphs of Plaintiff’s affidavit, after concluding that the state-

ments made in those paragraphs did not “directly contradict” Plain-

tiff’s deposition testimony, but merely raised credibility issues

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20-14298 Opinion of the Court 15

about the facts asserted by Plaintiff. For example, the court de-

clined to strike Plaintiff’s affidavit testimony concerning, among

other things: (1) the reason Plaintiff applied for FMLA leave, (2) the

fact that Plaintiff’s medical condition stabilized in June 2016,

(3) whether Plaintiff submitted an FMLA form to Washington in

June 2016 or an ADA accommodation request form in August 2016,

(4) whether Plaintiff was properly certified for the Mechanic posi-

tion after he submitted revised application materials to the Person-

nel Board, and (5) the efficacy of MAWSS’s EEO policies and pro-

cedures.

The district court granted Defendants’ motion to strike only

as to Plaintiff’s affidavit testimony describing what happened to Dr.

Millette’s October 2016 letter after Plaintiff delivered the letter to

Sumrall. We agree with the district court that, on this one point,

Plaintiff’s affidavit testimony directly contradicts his prior deposi-

tion testimony. As discussed, the copy of the October 2016 letter

produced by Plaintiff shows that Dr. Millette did not send the letter

directly to MAWSS, as had been Dr. Millette’s standard procedure

for communicating with MAWSS in the past. The letter was ad-

dressed “To Whom it May Concern” and it made no reference to

MAWSS, Washington, or King. When asked during his deposition

about the delivery of the letter to MAWSS, Plaintiff stated that he

gave it to Sumrall. Responding to a follow-up question concerning

what Sumrall did with the letter, Plaintiff affirmatively stated,

“That I do not know.” Plaintiff then testified that he did not put

the letter in interoffice mail because it was “not in an envelope.”

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16 Opinion of the Court 20-14298

And Plaintiff later confirmed that he did not ask HR about—or con-

firm that HR had received—the letter.

Testifying about this same subject in his affidavit, Plaintiff

did a complete about-face. Specifically, Plaintiff stated in his affida-

vit that after he gave Dr. Millette’s October 2016 letter to Sumrall,

he saw Sumrall put the letter in an envelope and then place the

envelope in the inbox, which was the customary way to deliver a

document from the MAWSS garage to HR. That is not a clarifica-

tion or supplementation but rather a complete repudiation of

Plaintiff’s prior deposition testimony, which appears to have been

proffered for the purpose of manufacturing a question of fact as to

whether Defendants were on notice of information suggesting that

Plaintiff was medically cleared to drive at the relevant time. As

such, the district court did not err by striking Plaintiff’s statement

in his affidavit regarding the delivery of Dr. Millette’s October 2016

letter to HR.

II. The District Court’s Summary Judgment Rulings

A. Standard of Review

We review the district court’s order granting summary judg-

ment de novo, applying the same legal standards as the district

court. See DeKalb Event Center, Inc. v. City of Chamblee, Geor-

gia, 15 F.4th 1056, 1059 (11th Cir. 2021). We construe the evidence,

and draw all reasonable inferences, in favor of Plaintiff. See Vessels

v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). View-

ing the evidence in that manner, summary judgment is warranted

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20-14298 Opinion of the Court 17

if there are no genuine issues of material fact, and the evidence

shows that Defendants are entitled to judgment as a matter of law.

Id.

B. Plaintiff’s ADA Discrimination Claims

The ADA prohibits discrimination “against a qualified indi-

vidual on the basis of disability in regard to job application proce-

dures, the hiring, advancement, or discharge of employees, em-

ployee compensation, job training, and other terms, conditions,

and privileges of employment.” 42 U.S.C. § 12112(a). Plaintiff ar-

gues that Defendants violated the ADA when they: (1) disqualified

him from being promoted to the Mechanic position in August

2016, and (2) restructured his duties in the ASW II position in Sep-

tember 2017 so that he was assigned to work primarily on small-

engine repairs. For the reasons discussed below, we agree with the

district court that Plaintiff cannot prevail on an ADA discrimination

claim based on either ground.

1. Claims Against Washington and King Individ-

ually

We note as an initial matter that the ADA “does not provide

for individual liability, only for employer liability.” Mason v.

Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996). See also Albra v. Ad-

van, Inc., 490 F.3d 826, 830 (11th Cir. 2007) (“[I]ndividual liability is

precluded for violations of the ADA’s employment discrimination

provision [.]”). Because there is no basis for holding Washington

and King individually liable on Plaintiff’s ADA discrimination

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18 Opinion of the Court 20-14298

claims, we AFFIRM the district court’s order granting summary

judgment to Washington and King on those claims.

2. Mechanic Promotion

To prevail on his ADA discrimination claim based on his dis-

qualification from the Mechanic position, Plaintiff must show that:

(1) he is disabled, (2) he is a “qualified individual” with respect to

the relevant position, and (3) he was subjected to unlawful discrim-

ination with respect to the position because of his disability. Fra-

zier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016). Defendants

concede that Plaintiff satisfies the first requirement because Wash-

ington and King regarded Plaintiff as physically impaired and lim-

ited in his ability to drive on account of his MS. And it is undisputed

that Plaintiff was subjected to an adverse employment action when

he was disqualified from the Mechanic promotion. But Defendants

argue that Plaintiff cannot make out a claim for disability discrimi-

nation based on his disqualification from the Mechanic promotion

because he cannot show that he was qualified to be a Mechanic.

According to Defendants, driving is an essential function of the Me-

chanic position, and Washington and King reasonably concluded,

based on the FMLA form provided by Dr. Millette in June 2016,

that allowing Plaintiff to drive at work would pose a “direct threat”

to the safety of himself and other individuals in the workplace and

in the general public.

The ADA defines a “qualified individual” as a person who

“with or without reasonable accommodation, can perform the es-

sential functions” of the relevant position. See 42 U.S.C. § 12111(8).

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20-14298 Opinion of the Court 19

Essential functions are those fundamental job duties that an indi-

vidual who holds the position is in fact required to perform. See

Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1257 (11th Cir. 2007).

When defining the essential functions of a position for purposes of

the ADA, “consideration [is] given to the employer’s judgment.”

42 U.S.C. § 12111(8). In addition, “if an employer has prepared a

written description before advertising or interviewing applicants

for the job, this description shall be considered evidence of the es-

sential functions of the job.” Id.

Whether an accommodation is reasonable depends on the

circumstances, but the ADA does not require an employer to elim-

inate an essential function of a position to accommodate a disabled

employee. See D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220,

1229 (11th Cir. 2005). Instead, an accommodation is only reasona-

ble under the ADA if it enables an employee to perform the essen-

tial functions of a position. See Holly, 492 F.3d at 1262 n.16 (“[A]n

accommodation that does not enable the employee to perform an

essential function of his position is factually unreasonable and is not

required by the ADA.”). Further, an accommodation is not reason-

able if it would impose an “undue hardship” on the employer. See

42 U.S.C. § 12112(b)(5)(A).

In addition to the above, an employee is not a qualified indi-

vidual if, by performing the essential duties of the relevant position,

he poses a “direct threat” to himself or others in the workplace. See

Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203 n.9 (11th Cir. 2021)

(explaining that the direct threat defense “relates to whether the

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20 Opinion of the Court 20-14298

employee is a qualified individual . . . because it focuses on whether

the plaintiff can perform the essential functions of her job.”). The

ADA defines a “direct threat” as “a significant risk to the health or

safety of others that cannot be eliminated by reasonable accommo-

dation.” 42 U.S.C. § 12111(3). The applicable regulations have ex-

panded the definition of a direct threat to include a risk to the

health or safety of the employee himself. See 29 C.F.R. § 1630.2(r).

An employer’s determination that an individual poses a direct

threat must be based on “reasonable medical judgment that relies

on the most current medical knowledge and/or on the best availa-

ble objective evidence.” See id. When the direct threat defense is

raised, the employee bears the burden of proving either that he was

not a direct threat or that reasonable accommodations were avail-

able to remove the threat. See Moses v. Am. Nonwovens, Inc., 97

F.3d 446, 447 (11th Cir. 1996) (“The employee retains at all times

the burden of persuading the jury either that he was not a direct

threat or that reasonable accommodations were available.”).

The evidence is undisputed that driving is an essential func-

tion of the Mechanic position. As discussed above, the job descrip-

tion for the Mechanic position includes “test driving” vehicles and

“operat[ing] a tow truck” among its primary duties, and it lists hav-

ing a valid state driver’s license and being able to obtain a CDL with

appropriate endorsements, including an air brake endorsement, as

a special requirement. Consistent with the job description, Sumrall

testified that Mechanics have the primary responsibility for repair-

ing disabled vehicles in the field, and that they are frequently called

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20-14298 Opinion of the Court 21

upon to get to the location of a disabled vehicle in the field and

transport the vehicle back to the MAWSS garage—either by driv-

ing or towing it—for additional repairs if necessary. Sumrall testi-

fied further that emergency situations such as sewer line backups

and water line breaks often require a Mechanic to be on standby to

travel to the scene and address equipment issues that occur there.

Finally, Sumrall stated that a Mechanic regularly test drives vehi-

cles—both in the field and in the garage—to diagnose problems

and ensure repairs have been performed correctly.

It is further undisputed that Washington and King reasona-

bly concluded, based on the updated FMLA form Dr. Millette sub-

mitted in June 2016, that allowing Plaintiff to drive MAWSS vehi-

cles while at work would pose a direct threat to Plaintiff’s own

safety and to the safety of other individuals in the workplace. In

pertinent part, and as set out above, the June 2016 FMLA form in-

dicated that Plaintiff’s MS: (1) was a permanent condition, (2) that

episodically caused symptoms including loss of vision, fatigue, and

extremity weakness with spasticity, (3) with episodes occurring

every three to six weeks and lasting three to five days per episode.

Defendants advised Plaintiff in August 2016 that his symptoms—

particularly his symptoms of loss of vision, dizziness, fatigue, and

extremity weakness with spasticity—presented “a safety hazard

when operating MAWSS vehicles and equipment.”

Plaintiff argues that Washington and King’s assessment that

he was unable to drive was based on their assumptions about his

MS diagnosis rather than objective medical evidence. But as just

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22 Opinion of the Court 20-14298

described, Washington and King determined that it would be haz-

ardous to allow Plaintiff to continue driving MAWSS vehicles and

equipment based on Dr. Millette’s description of Plaintiff’s symp-

toms—in particular, loss of vision, dizziness, and extremity weak-

ness with spasticity—rather than on Plaintiff’s MS diagnosis. Dr.

Millette’s description of Plaintiff’s symptoms was the “best . . . ob-

jective evidence” of Plaintiff’s symptoms and their frequency avail-

able to Washington and King at the relevant time. See 29 C.F.R.

§ 1630.2(r).

Plaintiff also argues that Dr. Millette’s October 2016 letter

medically cleared him to drive, despite his symptoms. Even if

Washington and King had seen the October 2016 letter, they might

reasonably have concluded that it was hazardous for Plaintiff to

drive at work, given his episodic symptoms of vision loss, dizziness,

and extremity weakness. But more importantly, Washington and

King testified that they never received Dr. Millette’s October 2016

letter, and Plaintiff has not presented any evidence to rebut their

testimony on that point. Contrary to his ordinary practice, Dr. Mil-

lette did not send the letter directly to MAWSS, as evidenced by

the fact that the letter is unaddressed and directed “To Whom it

May Concern.” Plaintiff testified in his deposition that he gave the

letter to Sumrall and again, we assume that is true for purposes of

this appeal. Nevertheless, Plaintiff admitted in his deposition that

he “d[id] not know” what Sumrall did with the letter. Plaintiff fur-

ther acknowledged that he did not take the letter directly to HR,

put the letter in interoffice mail, which was the ordinary means of

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20-14298 Opinion of the Court 23

transmitting documents to HR, or confirm that HR had ever re-

ceived the letter.

Finally, Plaintiff argues that his perceived inability to drive

could have been accommodated in the Mechanic position. As to

this argument, Plaintiff has the burden of identifying an accommo-

dation and showing that the accommodation is reasonable and

would enable him to perform the essential functions of the Me-

chanic position. See Boyle v. City of Pell City, 866 F.3d 1280, 1289

(11th Cir. 2017) (“The plaintiff bears the burden of identifying an

accommodation and showing that the accommodation would al-

low him to perform the essential functions of the job in question.”).

An employer’s “duty to provide a reasonable accommodation is

not triggered unless a specific demand for an accommodation has

been made.” Frazier-White, 818 F.3d at 1255–56 (quoting Gaston

v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363–64 (11th

Cir. 1999) (“[T]he initial burden of requesting an accommodation

is on the employee. Only after the employee has satisfied this bur-

den and the employer fails to provide that accommodation can the

employee prevail on a claim that her employer has discriminated

against her.”)).

The only accommodation suggested by Plaintiff is that De-

fendants limit his driving restriction to periods of time when Plain-

tiff is having an MS flare-up and his symptoms are active. Even

assuming Plaintiff specifically demanded that accommodation at

the relevant time—that is, when Defendants advised him that he

was disqualified from the Mechanic position—the evidence in the

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24 Opinion of the Court 20-14298

record shows that Plaintiff’s proposed accommodation is not rea-

sonable, and thus it is not required by the ADA. Again, it is undis-

puted that driving MAWSS vehicles and equipment is an essential

function of the Mechanic position, and one that Mechanics fre-

quently are called upon to do during the regular course of their job

duties. Revoking Plaintiff’s authorization to drive during his MS

flare-ups—which Dr. Millette indicated can occur every three to six

weeks and last for three to five days per episode—would not enable

Plaintiff to perform the essential function of driving, but rather

eliminate that essential function for significant portions of his time

at work. As discussed above, the ADA does not require an em-

ployer to eliminate an essential function of a position, or alter the

essential nature of a position, to accommodate a disabled em-

ployee. See D’Angelo, 422 F.3d at 1229.

In short, undisputed evidence in the record shows that:

(1) driving is an essential function of the Mechanic position, (2) De-

fendants reasonably concluded that allowing Plaintiff to drive at

work would pose a direct threat to Plaintiff himself or others in the

workplace, and (3) Plaintiff failed to identify a reasonable accom-

modation that would enable him to perform the essential functions

of the Mechanic position given his driving restriction. Accordingly,

we AFFIRM the district court’s order granting summary judgment

to Defendants as to Plaintiff’s ADA disability discrimination claim

based on his disqualification from the Mechanic position.

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20-14298 Opinion of the Court 25

2. Assignment to Small-Engine Work

As to Plaintiff’s assignment to work primarily on small-en-

gine repairs in his ASW II position, Defendants do not dispute that

Plaintiff was disabled and that he was qualified for the ASW II po-

sition he held when he was given the small-engine assignments at

issue, but they argue that there is no evidence they discriminated

against Plaintiff on account of his disability by giving him small-

engine assignments, and we agree. The undisputed evidence

shows that small-engine repair was part of the routine work of the

MAWSS garage that was shared among various ASW II employees

and distributed as dictated by the needs of the garage. To that end,

multiple MAWSS garage supervisors testified that Plaintiff was not

the only MAWSS employee who did small-engine work, but that

his “name would come up first” for that type of work because he

was “good at it.” Plaintiff did not present any evidence to rebut

this testimony. On the contrary, Plaintiff confirmed in his deposi-

tion testimony that he had worked in the small-engine area since

2015, prior to the time he submitted his FMLA paperwork advising

Defendants of his MS diagnosis.

Sumrall did suggest in his testimony that he tended to direct

small-engine assignments to Plaintiff as an informal accommoda-

tion for his illness, because those assignments allowed Plaintiff to

work away from fumes. But even assuming Plaintiff received more

small-engine assignments because of his illness, Plaintiff does not

cite any evidence to support his argument that the assignments

were adverse in any way. The ADA defines discrimination in terms

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26 Opinion of the Court 20-14298

that relate to “the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions,

and privileges of employment.” See 42 U.S.C. § 12112(a). There is

no evidence that Plaintiff’s small-engine assignments had any effect

on the “terms, conditions, and privileges” of his employment in the

ASW II position. It is undisputed that small-engine work did not

result in less pay, a less desirable schedule, diminished work re-

sponsibilities, or reduced opportunities for advancement. Thus,

Plaintiff cannot establish the final element of his prima facie ADA

discrimination claim—that is, discrimination because of his disabil-

ity—with respect to the small-engine repair assignments he re-

ceived while working as an ASW II. See Holly, 492 F.3d at 1256.

As such, we AFFIRM the district court’s order granting summary

judgment to Defendants on Plaintiff’s ADA discrimination claim

based on his reassignment to small-engine repair duties.

C. Plaintiff’s Retaliation Claims

In addition to disability discrimination, Plaintiff alleges retal-

iation in his complaint. Specifically, Plaintiff claims Defendants re-

taliated against him after he complained about disability discrimi-

nation, filed an EEOC charge alleging disability discrimination, and

testified about disability discrimination at his own and Rollo’s dis-

ciplinary hearings. We analyze Plaintiff’s retaliation claims in three

distinct categories, based on their varying legal underpinnings:

(1) First Amendment retaliation, (2) adverse action retaliation in vi-

olation of the ADA, and (3) retaliatory hostile work environment

in violation of the ADA. As discussed below, we agree with the

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20-14298 Opinion of the Court 27

district court that Plaintiff’s First Amendment retaliation and ADA

adverse action retaliation claims are legally inadequate, and we

therefore AFFIRM the court’s decision to grant summary judg-

ment as to those claims. As to Plaintiff’s retaliatory hostile work

environment claim under the ADA, neither the parties nor the dis-

trict court applied the correct legal analysis to that claim. Accord-

ingly, we REMAND Plaintiff’s retaliatory hostile work environ-

ment claim to the district court for further proceedings consistent

with this opinion.

1. First Amendment Retaliation

a. Claims Against Washington and King

Individually

As is evident from the discussion above, Plaintiff’s First

Amendment claim is the only claim on which Defendants Wash-

ington and King are potentially liable in their individual capacity.

See Albra, 490 F.3d at 830 (explaining that the ADA does not pro-

vide for individual liability). The district court determined that

Washington and King were entitled to qualified immunity as to

Plaintiff’s First Amendment claims asserted against them individu-

ally. Plaintiff did not identify the qualified immunity ruling in his

opening brief as an issue for appeal, nor did he offer any substantive

argument on the qualified immunity issue in his opening brief. Ac-

cordingly, Plaintiff has waived any right to appeal the district’s

court qualified immunity ruling as to his First Amendment claims

asserted against Washington and King individually, and we

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28 Opinion of the Court 20-14298

AFFIRM the district court’s order granting summary judgment as

to those claims on that ground.

b. Claims Against MAWSS

For Plaintiff to prevail on his First Amendment retaliation

claim against Defendant MAWSS, he must show that: (1) he en-

gaged in speech on a matter of public concern, (2) his First Amend-

ment interest in the speech outweighed his employer’s interest in

prohibiting the speech to promote the efficiency of the public ser-

vices it performs through its employees, and (3) his speech played

a substantial part in an adverse employment action taken against

him by MAWSS. See Battle v. Bd. of Regents for Ga., 468 F.3d 755,

759–60 (11th Cir. 2006). Once Plaintiff establishes these factors, the

burden shifts to MAWSS to show by a preponderance of the evi-

dence that it would have reached the same decision even in the

absence of the protected conduct. See id. at 760. “The first two

elements are questions of law designed to determine whether the

First Amendment protects the employee’s speech. The third ele-

ment and affirmative defense are questions of fact designed to de-

termine whether the adverse employment action was in retaliation

for the protected speech.” Id.

As to the first part of the analysis, Plaintiff’s speech is entitled

to constitutional protection only to the extent he “spoke as a citizen

on a matter of public concern.” See id. (quoting Garcetti v. Ce-

ballos, 547 U.S. 410 (2006)). Speech made primarily in Plaintiff’s

role as an employee is not protected by the First Amendment and

cannot give rise to a First Amendment retaliation claim. See id.

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20-14298 Opinion of the Court 29

Plaintiff has not shown that he spoke as a citizen on a matter of

public concern when he complained internally about disability dis-

crimination between July and December 2016, or when he filed

EEOC charges alleging discrimination and retaliation. On the con-

trary, and as described in the complaint, the thrust of Plaintiff’s in-

ternal complaints about discrimination and his subsequent EEOC

charges concerned a matter of private interest—that is, Plaintiff’s

disqualification from a promotion he felt he was entitled to re-

ceive—rather than public concern. See Alves v. Bd. of Regents of

the Univ. Sys. of Ga., 804 F.3d 1149, 1165–68 (11th Cir. 2015) (deny-

ing First Amendment protection where the main thrust of the

speech at issue concerned a personal employee grievance). As

such, this speech is not protected by the First Amendment and can-

not support Plaintiff’s First Amendment retaliation claim. See id.

Plaintiff argues that his testimony at his own disciplinary

hearing and at Rollo’s disciplinary hearing in March 2017 qualifies

as protected speech under Lane v. Franks, 573 U.S. 228, 238 (2014),

in which the Supreme Court held that a public employee’s truthful

testimony, compelled by subpoena but given outside of the course

of his ordinary job duties, was protected by the First Amendment.

Assuming Plaintiff is correct, any First Amendment claim based on

Plaintiff’s testimony at the disciplinary hearings fails because there

is no evidence Plaintiff’s speech at the hearings played a substantial

part in any adverse action MAWSS subsequently took against

Plaintiff. Plaintiff’s disqualification from the Mechanic promotion

occurred in August 2016, prior to Plaintiff’s testimony at the

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30 Opinion of the Court 20-14298

hearings. A disciplinary hearing panel determined that a fifteen-

day suspension was warranted at the conclusion of Plaintiff’s Feb-

ruary 9 disciplinary hearing. This decision was made prior to, and

thus could not have been influenced by, Plaintiff’s testimony at

Rollo’s hearing in March 2017. The disciplinary decision obviously

followed Plaintiff’s testimony at his own hearing, but the decision

was well-supported by the evidence presented at the hearing, and

it was set in motion by an investigation that occurred in December

2016, again predating Plaintiff’s hearing testimony. Plaintiff re-

ceived an unsatisfactory service rating and loss of a merit raise in

October 2017, but it is undisputed that those adverse actions fol-

lowed automatically from his disciplinary suspension. The only

other consequence Plaintiff claims resulted from his testimony at

the disciplinary hearings is the small-engine assignments he re-

ceived after he testified, but we have already explained that those

assignments do not constitute an adverse employment action.

In short, most of the speech alleged by Plaintiff in support of

his First Amendment retaliation claim concerns a personal, em-

ployment-related grievance rather than a matter of public concern.

See Alves, 804 F.3d at 1165–68. To the extent some part of his al-

leged speech arguably is protected by the First Amendment, Plain-

tiff has not shown that the speech played a substantial role in any

adverse employment action Defendants subsequently took against

him. See Battle, 468 F.3d at 759–60. For these reasons, we AFFIRM

the district court’s order granting summary judgment on Plaintiff’s

First Amendment retaliation claim.

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20-14298 Opinion of the Court 31

2. ADA Retaliation

In addition to his First Amendment retaliation claim, Plain-

tiff asserts a retaliation claim arising under the ADA for the same

adverse actions. The ADA prohibits retaliation against an individ-

ual “because such individual has opposed any act or practice made

unlawful [by the Act] or . . . made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hear-

ing” under the Act. 42 U.S.C. § 12203(a). When an ADA retaliation

claim is based on circumstantial evidence, as Plaintiff’s claim is, we

analyze the claim under the McDonnell Douglas burden-shifting

framework. See Batson v. Salvation Army, 897 F.3d 1320, 1328–29

(11th Cir. 2018). Plaintiff must first establish a prima facie case of

retaliation by showing that: (1) he engaged in a statutorily pro-

tected expression, (2) he suffered an adverse action, and (3) there

was a causal link between the two. See id. at 1329. The burden

then shifts to Defendants to articulate a legitimate, non-retaliatory

reason for their actions. See id. Assuming Defendants meet their

burden, Plaintiff must produce evidence showing that the rationale

asserted by Defendants is a pretext for retaliation to avoid sum-

mary judgment. See id.

We assume Plaintiff has established a prima facie case of

ADA retaliation. Defendants do not dispute that Plaintiff engaged

in conduct that is statutorily protected by the ADA when he com-

plained internally about disability discrimination during the latter

part of 2016, and when he subsequently filed EEOC charges and

raised the issue of disability discrimination during his own and

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32 Opinion of the Court 20-14298

Rollo’s disciplinary hearings in February and March 2017. It is also

undisputed that Plaintiff suffered an adverse action when he was

disqualified from the Mechanic promotion in August 2016 and

when he was suspended after a disciplinary hearing in February

2017, which suspension resulted in Plaintiff receiving an unsatisfac-

tory service rating and the loss of a merit raise in October 2017. 7

We assume, without deciding, that Plaintiff likewise has shown

that the adverse actions were not “wholly unrelated” to his pro-

tected conduct, as required to establish a prima facie case of retali-

ation. See Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121,

1135 (11th Cir. 2020) (applying the “not wholly unrelated” causa-

tion standard at the prima facie stage of the McDonnell Douglas

analysis) (quotation marks omitted).

Defendants have articulated a legitimate, nonretaliatory rea-

son for each of the adverse actions taken against Plaintiff. As to

Plaintiff’s disqualification from the Mechanic promotion, Defend-

ants explain that Washington and King imposed a driving re-

striction based on Dr. Millette’s description of Plaintiff’s MS-related

symptoms in July 2016, which restriction meant Plaintiff was una-

ble to perform the essential functions of the Mechanic position.

7 Plaintiff argues that the restructuring of his job duties to include only small-

engine repairs in September 2017 also qualifies as an adverse action for pur-

poses of his ADA retaliation claim. As discussed in relation to Plaintiff’s disa-

bility discrimination and First Amendment retaliation claims, there is no evi-

dence that assigning Plaintiff to small-engine work was in any way adverse.

Thus, we do not consider the assignment an adverse action for purposes of

Plaintiff’s ADA retaliation claim.

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20-14298 Opinion of the Court 33

Regarding Plaintiff’s fifteen-day disciplinary suspension in Febru-

ary 2017, Defendants note that the suspension was recommended

by a three-person hearing panel at the conclusion of Plaintiff’s dis-

ciplinary hearing, during which hearing Plaintiff admitted both that

he had performed a personal vehicle repair while on MAWSS time

and using MAWSS materials and that he had stood by while a co-

worker tried to conceal and ultimately stole MAWSS inventory.

Finally, Defendants explain that Plaintiff’s unsatisfactory service

rating and loss of a merit raise in October 2017 followed automati-

cally from his disciplinary suspension. The legitimate, nonretalia-

tory reasons proffered by Defendants for each of the adverse ac-

tions taken against Plaintiff easily satisfy their burden at the second

stage of the McDonnell Douglas framework. See Chapman v. AI

Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (noting that the em-

ployer’s burden to articulate legitimate, nonretaliatory reasons for

its actions “is merely one of production”).

Plaintiff presents no evidence that the rationale proffered by

Defendants to explain his disqualification from the Mechanic pro-

motion was a pretext for retaliation. It is undisputed that Wash-

ington and King determined Plaintiff was not qualified for the Me-

chanic position because of the driving restriction they imposed on

Plaintiff after Dr. Millette provided updated information to

MAWSS in July 2016 about Plaintiff’s MS-related symptoms. We

have rejected Plaintiff’s argument that the driving restriction was

discriminatory, and we likewise reject his argument that the re-

striction was retaliatory. Indeed, the driving restriction cannot

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34 Opinion of the Court 20-14298

have been retaliatory because it was the subject of—and the impe-

tus for—Plaintiff’s internal complaints about disability discrimina-

tion, which is the only protected conduct Plaintiff engaged in be-

fore he was disqualified from the Mechanic promotion.

As to Plaintiff’s February 2017 suspension—as well as the

October 2017 unsatisfactory service rating and loss of merit raise

that followed automatically from the suspension—it is undisputed

that the suspension was imposed by a three-person hearing panel

at the conclusion of Plaintiff’s disciplinary hearing conducted on

February 9, 2017. The panel was aware that Plaintiff had com-

plained internally about disability discrimination because Plaintiff

testified to that fact during the hearing. However, there is no evi-

dence that Plaintiff’s prior internal complaints about discrimination

influenced the panel’s decision as to the appropriate discipline to

impose on Plaintiff. On the contrary, all the evidence in the record

indicates that the hearing panel decided that a fifteen-day suspen-

sion was warranted based on evidence presented at the hearing—

including video surveillance footage and Plaintiff’s own testi-

mony—showing that Plaintiff violated Personnel Board rules by

completing a personal vehicle repair on MAWSS time and using

MAWSS materials and that he aided and abetted theft of MAWSS

inventory when he stood by while his co-worker tried to conceal

and then stole a pair of windshield wipers that Plaintiff had previ-

ously pulled from the garage without noting their removal in the

MAWSS inventory system.

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20-14298 Opinion of the Court 35

Plaintiff claims he was selectively targeted for discipline, but

he does not present any evidence to support that claim. It is undis-

puted that the other parties involved in the incidents for which

Plaintiff was disciplined—Rollo and Turner—were themselves dis-

ciplined: Turner was forced to retire, and Rollo was suspended.

Plaintiff also points out that his co-worker Jason Simon was in the

MAWSS garage when Turner stole the windshield wipers, but

there is no evidence that Simon pulled the windshield wipers from

MAWSS’s inventory without noting their removal and then stood

idly by while Turner blatantly tried to conceal and subsequently

stole the wipers in Simon’s presence. Finally, Plaintiff notes that

MAWSS garage employees had a custom and practice of perform-

ing minor personal repairs and that Sumrall had engaged in this

practice himself. Assuming that is true, it does not account for the

fact that Plaintiff was disciplined for both performing a personal re-

pair and aiding and abetting a co-worker’s theft. Moreover, there

is no evidence that any HR employees—including Washington and

King, who initiated Plaintiff’s discipline—were aware of the per-

sonal repair practice in the MAWSS garage, which Plaintiff does

not deny violated Personnel Board rules.

In short, Plaintiff presents no evidence from which a jury

could reasonably conclude that he was selectively targeted for dis-

cipline or disciplined unfairly in retaliation for his complaints about

disability discrimination. Nor does Plaintiff present any other evi-

dence that could fairly be interpreted to suggest that the explana-

tions proffered by Defendants for Plaintiff’s disqualification from

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36 Opinion of the Court 20-14298

the Mechanic promotion and his subsequent fifteen-day discipli-

nary suspension are pretextual, and that retaliation is the real rea-

son for either of those adverse actions. As such, Plaintiff’s ADA

retaliation claim fails.

3. Retaliatory Hostile Work Environment

Finally, Plaintiff asserts a retaliatory hostile work environ-

ment claim against Defendants under the ADA. Specifically, Plain-

tiff claims that Defendants subjected him to a “hostile, offensive,

and abusive working environment” because of his internal com-

plaints about disability discrimination between July and December

2016, in violation of the ADA’s anti-retaliation provision. This

Court has not specifically held that a retaliatory hostile work envi-

ronment claim is cognizable under the ADA, but it has held that

such a claim is available under Title VII. See Monaghan v. World-

pay US, Inc., 955 F.3d 855, 860 (11th Cir. 2020). The anti-retaliation

provisions of the ADA and Title VII are nearly identical. Compare

42 U.S.C. § 12203(a) (“No person shall discriminate against any in-

dividual because such individual has opposed any act or practice

made unlawful by [the ADA] or because such individual made a

charge, testified, assisted, or participated in any manner in an in-

vestigation, proceeding, or hearing under [the ADA].”) and 42

U.S.C. § 2000e-3(a) (making it unlawful for an employer “to dis-

criminate against” an individual because such individual “has op-

posed any practice made an unlawful employment practice by [Ti-

tle VII], or because he has made a charge, testified, assisted, or par-

ticipated in any manner in an investigation, proceeding, or hearing

USCA11 Case: 20-14298 Date Filed: 01/24/2022 Page: 37 of 38

20-14298 Opinion of the Court 37

under [Title VII].”). Thus, we assume that Plaintiff’s retaliatory

hostile work environment claim is cognizable under the ADA, and

that the same standard applies to that claim as would apply to a

similar claim under Title VII.

Until recently, this Court had applied the “severe or perva-

sive” standard to a Title VII retaliatory hostile work environment

claim, requiring a plaintiff asserting such a claim to show that he

experienced harassment on account of his protected conduct that

was “sufficiently severe or pervasive to alter the terms and condi-

tions” of his employment. See Gowski v. Peake, 682 F.3d 1299

(11th Cir. 2012). In Monaghan, the Court rejected the standard for-

merly applied in Gowski, and held that a plaintiff can prevail on a

retaliatory hostile work environment claim under Title VII by

showing, in addition to the other elements required to establish a

retaliation claim, that the alleged retaliatory conduct “well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination” under Title VII. Monaghan, 955 F.3d at

857 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 57 (2006) (quotation marks omitted and alterations adopted)).

The district court and the parties below analyzed Plaintiff’s

retaliatory hostile work environment claim under the “severe or

pervasive” standard applied prior to Monaghan. Defendants con-

tinue to rely on the severe or pervasive standard in their appellate

brief, while Plaintiff cites Monaghan in his appellate brief. As made

clear in Monaghan, the proper standard for analyzing a retaliatory

hostile work environment claim is the “well might have dissuaded”

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38 Opinion of the Court 20-14298

standard announced in Burlington Northern rather than the “se-

vere or pervasive” standard of Gowski. See id. We thus remand

Plaintiff’s retaliatory hostile work environment claim to the district

court to give the parties an opportunity to brief, and that court the

opportunity to consider in the first instance, the claim under the

correct legal standard.

CONCLUSION

For the reasons stated above, we AFFIRM the district court’s

order granting summary judgment as to Plaintiff’s ADA discrimi-

nation claim and all his retaliation claims except his ADA retalia-

tory hostile work environment claim. We also AFFIRM the district

court’s order granting summary judgment to Washington and

King as to all claims asserted against them in their individual capac-

ity, on the ground that Plaintiff has not argued and has thus aban-

doned his appeal of the district court’s order granting qualified im-

munity to Washington and King. As to Plaintiffs retaliatory hostile

work environment claim asserted under the ADA, we REMAND

that claim to the district court to consider under the standard re-

cently applied by this Court in Monaghan.