The opinion
PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 98-6637 U.S. COURT OF APPEALS
Non-Argument Calendar ELEVENTH CIRCUIT
________________________ 02/12/99
THOMAS K. KAHN
CLERK
D.C. Docket No. 93-1039-BH-C
JAN C. GASTON,
Plaintiff-Appellant,
versus
BELLINGRATH GARDENS &
HOME, INC.,
Defendant-Appellee.
__________________________
Appeal from the United States District Court for the
Southern District of Alabama
_________________________
(February 12, 1999)
Before COX, DUBINA, and CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Jan Gaston appeals from the district court’s grant of summary
judgment to defendant Bellingrath Gardens & Homes (“Bellingrath Gardens”),
her former employer, on her claim that it discriminated against her on the basis
of her disability in violation of the American with Disabilities Act, 42 U.S.C.
12101 et seq. For the reasons set forth below, we affirm the district court’s
judgment.
I. BACKGROUND
Jan Gaston began working for Bellingrath Gardens in 1983, initially in the
garden area and later in the gift shop as a cashier. She had several surgeries
between 1988 and 1992 due to an osteoarthritic condition but was always able
to return to her cashier job afterwards. Up until December 1992, the guidelines
describing her gift shop cashier position did not require her to carry a weight in
excess of ten pounds or to engage in any bending, lifting, or stooping.
In December 1992, Bellingrath Gardens came under new management.
On December 4, 1992, Ms. Marty Wyas, the new general manager of
Bellingrath Gardens, called Gaston into her office and showed her the new job
guidelines for a gift shop cashier. Those new guidelines required a gift shop
cashier to be able to lift and carry a weight of up to fifty pounds and specified
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that bending, lifting, and stooping were part of the job. Wyas told her that she
must meet those requirements in the guidelines or “else.” Gaston then told
Wyas that she (Wyas) knew Gaston could not meet those requirements. Wyas,
however, did not take any action against Gaston at that time.
On December 30, 1992, Gaston resigned her position, allegedly because
she could not meet the requirements in the new guidelines. Gaston does not
point to any evidence indicating that she informed Bellingrath Gardens of the
reason for her resignation.
On December 28, 1993, Gaston filed a complaint alleging that Bellingrath
Gardens had discriminated against her by failing to provide a reasonable
accommodation for her disability. The suit was subsequently continued,
however, to allow Gaston to pursue a claim for disability benefits from the
Social Security Administration. On June 5, 1996, an Administrative Law Judge
found that Gaston was disabled within the meaning of the Social Security Act
and awarded her disability benefits. Shortly thereafter, the district court lifted
the continuance on Gaston’s ADA suit and Bellingrath Gardens moved for
summary judgment.
The district court granted Bellingrath Gardens summary judgment on the
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grounds that Gaston could not establish that she was a “qualified individual with
a disability” under the ADA, that is, an individual who can perform the essential
functions of the job either with or without reasonable accommodation. See 42
U.S.C. § 12111. The district court reasoned that Gaston’s representation to the
Social Security Administration that she was “permanently disabled” and the
ALJ’s finding, in awarding Gaston disability benefits, that “she could not engage
in even sedentary work,” estopped her from maintaining in the present suit that
she could perform her former job as gift shop cashier either with or without a
reasonable accommodation.
Gaston appealed and we vacated the judgment and remanded the case to
allow the district court to consider our decision in Talavera v. School Bd. of
Palm Beach County, 129 F.3d 1214 (11th Cir. 1997), which had been decided
subsequent to the district court’s entry of judgment. In Talavera, we held that
an ADA plaintiff who the Social Security Administration has certified as “totally
disab[led]” is not judicially estopped from claiming she is able to do her job
with reasonable accommodation for purposes of establishing that she is a
“qualified individual with a disability” under the ADA. Id. at 1220. We also
held, however, that an ADA plaintiff was “estopped from denying the truth of
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any statements made in her disability application [to the Social Security
Administration].” Id.
On remand, the district court again awarded Bellingrath Gardens summary
judgment after finding that its previous order granting summary judgment was
consistent with Talavera. Gaston then filed this appeal.
II. DISCUSSION
“We review a district court's grant of summary judgment de novo,
applying the same legal standard employed by the district court. . . . Summary
judgment is appropriate if the record shows no genuine issue of material fact and
that the moving party is entitled to judgment as a matter of law. When deciding
whether summary judgment is appropriate, all evidence and reasonable factual
inferences drawn therefrom are reviewed in a light most favorable to the
non-moving party.” Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th
Cir. 1998)(citations and quotations omitted).
We find it unnecessary to address the issue of whether Gaston is estopped
from claiming that she could have performed her job with a reasonable
accommodation, because we conclude that her claim that Bellingrath Gardens
discriminated against her by failing to provide a reasonable accommodation fails
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for a more basic reason–she never requested a reasonable accommodation.1
We have previously held that a plaintiff cannot establish a claim under the
Rehabilitation Act alleging that the defendant discriminated against him by
failing to provide a reasonable accommodation unless he demanded such an
accommodation. See Wood v. President and Trustees of Spring Hill College
in the City of Mobile, 978 F.2d 1214, 1222 (11th Cir. 1992). “Congress intended
for courts to rely on Rehabilitation Act cases when interpreting similar language
in the ADA.” Pritchard v. Southern Co. Services, 92 F.2d 1130, 1132 n.2 (11th
Cir. 1996). Like the ADA, the Rehabilitation Act imposes a duty on entities
covered by the act to provide employees with a disability a reasonable
accommodation. See Harris v. Thigpen, 941 F.2d 1495, 1525 (11th Cir. 1991).
Accordingly, our holding in Wood that the duty to provide a reasonable
accommodation is not triggered unless a specific demand for an accommodation
has been made, is binding precedent for purposes of defining the scope of the
1
Bellingrath Gardens raised this argument both before the district court and
on appeal, but Gaston, for whatever reason, chose not to respond to it. While we
recognize that the district court did not address this argument, we may affirm the
district court’s judgment “on any ground that finds support in the record.” See
Jaffe v. Dunham, 77 S. Ct. 307, 308 (1957).
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duty to provide a reasonable accommodation under the ADA.2
Moreover, the EEOC’s interpretive guidelines, issued pursuant to its
authority to issue regulations under the ADA, provide that “[i]n general . . . it is
the responsibility of the individual with a disability to inform the employer that
an accommodation is needed.” 29 C.F.R. pt. 1630 App. § 1630.9. “Once a
qualified individual with a disability has requested provision of reasonable
accommodation, the employer must make a reasonable effort to determine the
appropriate accommodation.” Id.
Thus, both our precedent and the EEOC’s interpretive guidelines clearly
provide that the initial burden of requesting an accommodation is on the
employee. 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.
In this case, Gaston did not request a reasonable accommodation after Ms.
Wyas, her manager, informed her about the new job requirements of a gift shop
2
Although Wood did not involve employment discrimination but instead
involved alleged discrimination in a college admissions decisions, this distinction
is irrelevant. The Rehabilitation Act’s prohibition against discriminating against
an individual with a disability “unquestionabl[y]” applies to employment decisions.
Consolidated Rail Corp. v. Darrone, 104 S. Ct.1238, 1253 (1984).
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cashier. Instead, she simply told Ms. Wyas that she knew Gaston could not meet
those requirements and then resigned without explanation approximately three
weeks later. Gaston’s failure to demand a reasonable accommodation after
being shown the new job requirements is fatal to her ability to prevail on her
claim that Bellingrath Gardens discriminated against her by failing to provide
a reasonable accommodation.3
III. CONCLUSION
AFFIRMED.
3
We note that a different case might be presented if Gaston could show that
the new job requirements were implemented for the purpose of discriminating
against her because of her disability. However, Gaston presented no such
evidence.
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