Petition for Writ of Certiorari — Peeples v. Wright Investment Properties, Inc.

Supreme Court, U.S

9917 80 MAY 9 2000

No. 99- OEEICE OF THe Lien

IN THE

Supreme Court of the United States

FRANCES D. PEEPLES,

Petitioner,

v.

WRIGHT INVESTMENT PROPERTIES, INC., HOTEL

MANAGEMENT, INC., DRIVING FORCE, L.L.C., MACON,

GA. HOTEL PARTNERS, L.P., and STACEY PERRYMAN,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

ae ama neuen

2 nes

PETITION FOR A WRIT OF CERTIORARI

— Ser eam re can

— ror eens mene mae

G. SAM BURNETTE

Attorney for Petitioner

577 Mulberry Street, Suite 1050

Macon, Georgia 31201

(912) 743-4300

158316 @) Counsel Press LLC

: (800) 274-3321 +» (800) 359-6859

i

QUESTIONS PRESENTED

Whether or not the District Court erred in holding that

no genuine issue of material fact existed that Petitioner, who

had at least sixteen years experience as a bartender, including

several years with her visual disability, was not qualified

for this position and thereby failed to establish a prima facie

case of discrimination under the Americans With Disabilities

Act (“ADA”).

Whether the fact that petitioner applied for Social

Security Disability and was receiving partial payments at

the time she was discharged prevents her from bringing a

claim under the Americans With Disabilities Act (“ADA”).

u

TABLE OF CONTENTS

Page

Questions Premegeee .....45 dies Keune beeen 1

Table of Comtemts occ siscts dee ee eee ll

Table of Cited Awthenities «oc cc ce cnccsccuesss Vv

Table of Appenmiiees ...4..is445 100s Vill

Opemions BOIOW . ww. ins cscssae esas l

Statement of Jurie@ictiom ...616 656i seebe eee l

Statutory Provisions Involved ................. 2

Statement of the Case scancaude se 2

A. Backgrounds qo. ccucckks ss5 eee 2

B. The Proceedings Below .........0s.00:: 3

Reasons for Granting the Writ ................. 5

I. The Petition Should Be Granted Because The

Judgment Of The District Court As Affirmed

By The Eleventh Circuit Court Of Appeals

Wrongly Interprets The Americans With

Disabilities Act, 42 U.S.C. §§ 12101 et seq.

And, In Light Of This Court’s Decisions In

Sutton Kirkinburg And Murphy, Effectively

IT.

III.

IV.

ili

Contents

Defeats The Purpose And Intent Of The Law

By Equating The Manner In Which A Task

Is Performed With The Essential Function Of

6 saan BETTE ES Tee Te Oe a Een

The Petition Should Be Granted Because The

Judgment Of The District Court As Affirmed

By The Eleventh Circuit Court Of Appeals

Conflicts With The Provisions Of The

Americans With Disabilities Act, 42 U.S.C.

§§ 12101 er seq. And This Court’s Decisions

Interpreting This Act. ...............

A. Petitioner is “Disabled” Under the

Provisions ofthe ADA .........___.

B. Petitioner Is A Qualified Individual

With A Disability For Purposes Of The

yaks anise vi u's ccs.

The Petition Should Be Granted Because The

Judgment Of The District Court As Affirmed

By The Eleventh Circuit Court Of Appeals

Conflicts With This Court’s Prior Rulings On

The Viability Of An ADA Claim Where The

Claimant Was Declared Disabled For SSDI

MN ene.

The Petition Should Be Granted Because The

Judgment Of The District Court As Affirmed

By The Eleventh Circuit Court Of Appeals

Page

12

ia

iv

Contents

Page

Conflicts With The Law Pertaining To The

Standard To Be Followed For The Grant Of

Motions Of Summary Judgment. .......-- 16

17

6 Eran are rere ee ent ne aa

Vv

TABLE OF CITED AUTHORITIES

Cases:

Apcoa, Inc. v. Fidelity National Bank, 906 F.2d 610

C5576 oe Fo 6 hee ie ce eee

Bell v. Cameron Meadows Land Company, 669 F.2d

REPO EE i 55 8 xahas ean eae ee ees

Cleveland v. Policy Management Systems Corp.,

et al., 526 U.S. 795, 119 S. Ct. 1597 (1999) ....

Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d

ORF 09 eS 5 oho oe ee ee

Griesel v. B. D. Hamlin, 963 F.2d 338 (11" Cir.

SPOR snc aunbbiawadseaeeue el euee eee

Howard v. BP Oil Company, Inc., 32 F.3d 520 (11"

a RUE 6b ov ees ea a eee

Irby v. Bittick, 44 F.3d 949 (11" Cir. 1995) ......

Joiner v. General Electric Company, 78 F.3d 524

‘tia & S.C ee neha lene yt. s

Pritchard v. Southern Co. Services, 92 F.3d 1130

ChE Ce Pee ook vowen sc cca eee

Sankovich v. Life Ins. Co. of North America, 638

Fe AMO EUOEED visi uscaea eee eee

Page

15

vi

Cited Authorities

Page

Sherrod v. American Airlines, Inc., 132 F.3d 1112

(3° Civ. 190RP. voc cs dando eee 11

Snell v. U.S., 680 F.2d 545 (1982 .............. 16

Stewart v. Happy Herman's Cheshire Bridge, Inc.,

177 36 1276 C2? Cle, 2097) ik xv cwnuceeees 9)

Witter v. Delta Airlines, Inc., 138 F.3d 1366 (11"

Cie. 1968) «ices sdseeSaeee eee 9

Statutes:

28 U.S.C. & 1290. 6k cc ccca ead ee l

42 U.S. § 1ZIGL GOR. ckepseevenees 2, 3, 4, 5, 8,9

42 U.S.C. § 129GREEMAD |. veces cen oeeneeeeee 11

42 U.S.C. § UZNGREA I ss xx 0s cee eee eee 11

42 U.S.C. 6 T2IGRA so ewes cp baces eee 11

42 U.S.C. § 120 0NGR). ¢ cass aviuede eee 12

42 U.S.C. § 121 LAG MSNA) occa sceeeuwee eee 9

©O.C.G.A, § 36GOed osc cnanscdceaseeeuneeeeaen +

Vil

Cited Authorities

Page

Other Authorities:

ee ee Te Ao 12

29 CFR pt. 1630.2(h)\(1) ...................... 10

on OP TO ae ee 10

29 CEFR pt.1630.2(j)(i)(ii)(iii) . 10

29-C.F.R. pt. 1630.2G)Gi) ..................... 10

29 C.F.R. pt. § 1630.2(m) ..................... 12

House Education and Labor te 12

setts siasSetegs ok, ET OTT Een Fa

vill

TABLE OF APPENDICES

Appendix A — Order Of The United States Court

Of Appeals For The Eleventh Circuit Dated And

oo ge... Sr eT are

Appendix B — Order And Judgment Of The United

States District Court For The Middle District Of

Georgia, Macon Division Dated And Filed

pe Oe, ee err er eer ee

Appendix C — Order Of The United States Court

Of Appeals For The Eleventh Circuit Denying

Petition For Rehearing Dated And Filed February

ne sare en eens BP re rere Lee re

Page

la

3a

l

Petitioner, Darlene F. Peeples, respectfully requests that

a writ of certiorari issue to review the judgment of the United

States District Court granting respondent’s motion for

summary judgment, the judgment. per curiam, issued by the

United States Court of Appeals for the Eleventh Circuit

affirming the District Court’s judgment and the judgment of

the United States Court of Appeals for the Eleventh Circuit

denying petitioner’s Petition for Rehearing En Banc.

OPINIONS BELOW

The Judgment of the United States Court of Appeals for

the Eleventh Circuit affirming the District Court’s grant of

Summary Judgment was entered per curiam on December 9,

1999, and is unpublished. (App. A).

The Order of the United States District Court for the

Middle District of Georgia, Macon Division, granting

Respondents’ Motion for Summary Judgment filed January

8, 1999 is unpublished. (App. B).

STATEMENT OF JURISDICTION

The Judgment of the United States Court of Appeals for

the Eleventh Circuit denied a timely filed petition for

rehearing en banc on F ebruary 9, 2000. (App. C).

The jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

2

STATUTORY PROVISIONS INVOLVED

Pursuant to The American With Disabilities Act of 1990

(“ADA”) 42 U.S.C. § 12101, et seq. a prima facie case of

discrimination is established by showing that (1) Plaintiff

has a disability; (2) is a qualified individual; and (3) was

discriminated against because of the disability.

STATEMENT OF THE CASE

The issue in this case is whether or not the petitioner is

a qualified individual with a disability for purposes of the

Americans With Disabilities Act. The case of Ms. Peeples

presents the flip side of three Supreme Court cases decided

near the end of the 1998-1999 Term, Sutton, Kirkinburg and

Murphy. While these cases established guidelines limiting.

the circumstances under which a person can claim to be

“disabled” for purposes of the ADA, the case of Ms. Peeples

involves the issue of to what extent a disabled person can be

qualified to perform the essential functions of a job. This

case arises from the grant of respondents’ motion for

summary judgment by the U.S. District Court for the Middle

District of Georgia primarily on the grounds that petitioner

is not qualified to perform the essential functions of the job

of bartender from which she was discharged. To fully

appreciate the significance of the issues presented by this

case, it is necessary to consider its background as well as

the proceedings and arguments presented below.

A. Background

Petitioner was discharged from her position as bartender

because of her disability, a permanent visual impairment

known as histoplasmosis. Petitioner had competently

3

performed her duties in this position with her previous

employer(s) for approximately sixteen years, the last five of

which she performed with her present disability, using

accommodations that both she and her former employer

provided, without any complaints or problems. However, a

short time after her previous employer sold its business to

respondents, she was discharged when the new owners

learned of her disability. Although there had been no

problems with her job performance and her visual acuity was

never adequately tested by respondents, she was summarily

discharged because of her visual impairment.

Notwithstanding expert testimony to the contrary and

the fact that petitioner was competently and satisfactorily

performing her duties as bartender, the District Court

determined that she was not qualified to perform the essential

functions of the position of bartender and granted

respondents’ motion for summary judgment.

The court also alluded to the fact that because petitioner

had applied for Social Security Disability and was receiving

partial benefits she could not then claim that she could

perform the essential functions of the job of bartender and

therefore was not a qualified individual with a disability for

purposes of the Americans With Disabilities Act.

B. The Proceedings Below

On February 27, 1997, petitioner, Frances Darlene

Peeples (“Petitioner”) filed suit against Wright Investment

Properties, Inc., Hotel Management, Inc., Driving Force,

L. L. C., Macon, Georgia, Hotel Partners, L. P., and Stacey

Perryman (hereinafter “the respondents”), alleging violations

of the Americans With Disabilities Act, 42 U.S.C. §§ 12101

4

et seq. (“ADA”) and the Georgia Equal Employment For

Persons With Disabilities Code, O.C.G.A. § 34-6a-1,

(““GEEPDC’’) as the result of being discriminated against and

wrongfully terminated from her employment because of her

disability. Petitioner also sought recovery for intentional and

negligent infliction of emotional distress. Upon completion

of discovery, a motion for summary judgment was filed on

behalf of the employers on July 30, 1998, which alleged,

inter alia, that petitioner was not a “qualified individual with

a disability” under the “ADA”. Following oral argument the

District Court entered an order on January 8, 1999, granting

summary judgment for the employers and dismissing

petitioner’s case, holding that no genuine issues of material

fact existed that petitioner could not perform the essential

functions of the position of bartender and therefore she could

not establish a prima facie case of discrimination under the

ADA. (R-70). Consequently, the court also dismissed the

GEEPDC claim and claims for emotional distress. (App. B).

Following the grant of summary judgment, Petitioner filed

a Notice of Appeal on February 8, 1999. The United States

Court of Appeals for the Eleventh Circuit heard oral argument

on respondents’ motion on November 30, 1999, and entered

an order, per curiam, on December 9, 1999, affirming the

District Court's judgment (App. A). Petitioner timely filed

a petition for Rehearing En Banc which was denied by the

Court of Appeals on February 9, 2000 (App. C).

5

REASONS FOR GRANTING THE WRIT \

I. THE PETITION SHOULD BE GRANTED

BECAUSE THE JUDGMENT OF THE DISTRICT

COURT AS AFFIRMED BY THE ELEVENTH

CIRCUIT COURT OF APPEALS WRONGLY

INTERPRETS THE AMERICANS’ WITH

DISABILITIES ACT, 42 U.S.C. §§ 12101 ef seq. AND,

IN LIGHT OF THIS COURT’S DECISIONS IN

SUTTON KIRKINBURG AND MURPHY,

EFFECTIVELY DEFEATS THE PURPOSE AND

INTENT OF THE LAW BY EQUATING THE

MANNER IN WHICH A TASK IS PERFORMED WITH

THE ESSENTIAL FUNCTION OF THE JOB.

This Court interpreted the American with Disabilities

Act so as to significantly limit the number of people who

can claim to be qualified persons with disabilities under Tile

I of the Act. In the cases of Sutton, Kirkinburg and Murphy,

this Court found that moderate and prevalent conditions such

as correctable vision and hypertension do not qualify as

disabilities under the American with Disabilities Act.

Ms. Peeples’ case presents the flip side of the question

when an individual has a condition that is not moderate or

prevalent. Can an employer arbitrarily change what

constitutes the essential functions of a particular job or insist

upon the functions being performed in a particular way

without a dialogue on reasonable accommodations, thereby

automatically disqualifying someone who has a disability?

More specifically, at the very least does this not present a

question for determination by a jury when an individual has

competently performed a job for sixteen years and upon

learning that the employee is legally blind, new management

6°

automatically assumes that she cannot perform the essential

functions of the position because she does not do some things

as other individuals?

Permitting summary judgment to stand in this case would

seriously frustrate, if not totally defeat, the purpose of the

ADA. On the one hand, this Court’s decisions have rightly

determined that individuals with moderate conditions that

can be corrected by medication or other means are not

qualified individuals with disabilities for purposes of the

ADA because their disabilities are not serious enough to

substantially limit one or more of the major life activities of

such individual. However, based upon the judgment of the

District Court, if someone truly has a disability that limits

one or more of the major life activities of such individual,

an employer could claim that a particular function must be

performed in a way that the disabled person was incapable

of doing. In this way the employer could easily circumvent

the requirements of the ADA by simply declaring that the

individual was not qualified for the position. Thus, Title I of

the ADA would become a nullity as persons with disabling

conditions attempt to hold onto their jobs by navigating

between the Scylla of not being disabled on the one hand,

and the Charybdis of not being qualified because they are

disabled on the other.

According to the regulations, what the statute requires

is not a mere assumption that a person with a severe visual

impairment cannot enforce an Alcohol Management Policy,

but an open, fact-based dialogue as to whether the individual

can enforce the policy (an essential function of bartender)

with or without reasonable accommodations. The District

Court made the same erroneous assumption that the

employer/respondent made, i.e., a person with a severe visual

5

disability cannot possibly enforce the Alcohol Management

Policy. They mistakenly assumed that she cannot see people

sharing drinks — her distance vision being limited — and

that she cannot observe alterations on driver’s licenses since

her near vision is poor.

This assumption is totally wrong. First, the lounge where

she was working when she was terminated features music

from a former era which attracts middle-aged or older persons

and very few, if any, young people. Secondly, if there is an

issue regarding her ability to observe drink sharing, she can

overcome her distance vision problem, as she has often done,

by approaching the table of any younger person(s) who may

have entered the bar. Finally, she can and has overcome her

near vision problem with a magnifier that she, herself,

provided. Further, there are many types of relatively

inexpensive equipment available to enhance both near and

distance vision (e.g., compact high-powered electronic

magnifiers, closed circuit television monitors etc.) should a

younger — looking person choose this particular bar in which

to order a drink. The new management of the hotel did not

contemplate or even permit discussion of these possible

accommodations and the District Court failed to consider

them as well. Notwithstanding the fact that she had

competently performed the essential functions of bartender

for approximately sixteen years (five with her disability),

respondents merely assumed that petitioner was not qualified

to stand behind a bar and perform all of the essential functions

of the job with her naked eye, the way bartenders without a

disability accomplish these tasks.

If petitioner’s vision could be corrected, by whatever

means, to that of persons with normal or near normal vision,

she would, of course, not be disabled within the meaning of

8

the ADA. This is the teaching of Sutton, Kirkinburg and

Murphy. However, the Court should not allow respondents

to require that the essential finctions that were competently

and satisfactorily performed by petitioner in one way before

they realized that she had a disability be performed in a way

that she is incapable of afte: they realized that she had the

disability. The error here is in equating the manner in which

the essential function is performed with the essential function

itself. Management should be required to accommodate the

manner in which an essenial function is performed, if

reasonably possible. Othervise, disabled persons who are

confronted with unfounded assumptions about their inability

to perform a job will not be permitted to work and the ADA

will mean nothing.

Il. THE PETITION SHOULD BE GRANTED

BECAUSE THE JUDGMENT OF THE DISTRICT

COURT AS AFFIRMED BY THE ELEVENTH

CIRCUIT COURT OF APPEALS CONFLICTS WITH

THE PROVISIONS OF THE AMERICANS WITH

DISABILITIES ACT, 42 U.S.C. §§ 12101 et seg. AND

THIS COURT’S DECISIONS INTERPRETING

THIS ACT.

The District Court errec in granting summary judgment

in favor of the respondents because there are undisputed facts

from which different inferences might be drawn and as to

which reasonable minds might differ. Jrby v. Bittick, 44 F.3d

949 (11" Cir. 1995). In graating summary judgment in the

case at bar the District Courterroneously held that no genuine

issue of material fact existed that Petitioner was not a

“qualified individual with a disability”. In reaching this

decision the District Court not only overlooked numerous

portions of the record, including but not limited to,

ST

9

petitioner’ s own testimony as well as that of several experts

which strongly supports petitioner’s position, but apparently

chose to make its own assumptions totally unsupported by

the record.

A prima facie case of discrimination under the American

With Disabilities Act of 1990 (“ADA”) 42 U.S.C. § 12101,

et seq. is established by showing that (1) Plaintiff has a

disability; (2) is a qualified individual; and (3) was

discriminated against because of the disability. Pritchard y.

Southern Co. Services, 92 F.3d 1130 (11" Cir. 1996); Stewart

v. Happy Herman's Cheshire Bridge, Inc., 177 F.3d 1278

(11" Cir. 1997); Witter v. Delta Airlines, Inc., 138 F.3d 1366

(11" Cir. 1998).

First, petitioner is “disabled” for purposes of the ADA

as shown by the reports and depositions of her treating

physician and other experts. Second, she is able to perform

the essential functions of a bartender. Third, she was

discriminated against because of her disability. In addition,

the position of banquet server is not a comparable position

to that of bartender as alleged. The employers’ offer to

transfer petitioner to this position does not constitute a

reasonable accommodation and is in direct violation of the

provisions of the ADA. 42 U.S.C. § 12112(b)(5)(A).

A. Petitioner is “Disabled” Under the Provisions of the

ADA

The ADA defines “disability” as:

(A) a physical or mental impairment that

substantially limits one or more of the major life

activities of such individual;

10

(B) having a record of such impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).

Under the EEOC regulations “physical impairment”

means any physiological disorder or condition cosmetic,

disfigurement, or anatomical loss affecting one or more

systems of the body. 29 CFR pt. 1630.2(h)(1).

“Substantially limits” is defined as “... significantly

restricted as to the condition, manner or duration under which

an individual can perform a particular ‘major life

activity’ as compared to the condition, manner, or duration

under which the average person in the general population

can perform that same major life activity.” 29 C.F.R.

pt. 1630.2 (j)(i1).

The following factors should be considered in

determining whether an individual is substantially limited

in a major life activity: the nature and severity of the

impairment; the duration or expected duration of the

impairment; and the permanent or long term impact or the

expected permanent or long term impact of or resulting from

the impairment. 29 CFR pt.1630.2(j)(i)(i1)(ili).

A “major life activity” is a function such as caring for

oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning and working. 29 CFR

pt. 1630.2(i) (emphasis added).

In the case at bar, petitioner suffers from a condition

known as ocular histoplasmosis which adversely affects her

vision (D’Heurle Dep. p. 16). This condition is permanent

1]

in nature and reduces her “best” visual acuity to 20/200 which

renders her legally blind. (D’Heurle Dep. pp. 56, 62, and

67). This is a physical impairment that substantially limits

the major life activity of seeing. Therefore, petitioner is a

“qualified individual with a disability” for purposes of the

ADA under § 12102(2)(A). In addition, petitioner has a

record of this impairment and Perryman regarded her as being

“legally blind”. (Petitioner Dep. p. 60); (Also see Separation

Notice).

Petitioner’s disability also falls under the definition at

§ 12102(2)(B). It is undisputed that she has a record of visual

impairment dating back sometime prior to July 1992,

when she was first examined by Dr. D’Heurle. (D’Heurle

Dep. at 15).

However, assuming for the sake of argument that

petitioner’s disability does not fall within the definitions of

§§ 12102(2)(A) or 12102(2)(B), which is hereby expressly

denied, she would still be considered a “qualified individual

with a disability” for purposes of the ADA under

§ 12102(2)(C). See Sherrod v. American Airlines, Inc., 132

F.3d 1112 (5" Cir. 1998). It is undisputed that Perryman knew

of petitioner’s visual impairment before she was terminated

(Petitioner Dep. pp. 57-60). In fact, when Perryman learned

of her disability, she removed petitioner from her position

as bartender. (Perryman Dep. pp. 54, 55). Perryman’s reason

for her actions was that she did not think petitioner could

perform the functions of a bartender due to her visual

impairment and that her disability posed a risk of liability

for Holiday Inn. (Perryman Dep. pp. 80, 97). Thus, having

shown that Perryman regarded or perceived petitioner as

having a disability, she has a “qualified “ disability under

the definition of § 12102(2)(C).

12

B. Petitioner Is A Qualified Individual With A Disability

For Purposes Of The ADA

The assessment of whether an individual with a disability

is qualified for purposes of the ADA should be based on the

capabilities of the individual with a disability at the time of

the employment decision. 29 C.F.R. pt. 1630

App. § 1630.2(m); see also Senate Report at 26; House

Education and Labor Report at 55.

Under the provisions of the ADA a qualified individual

with a disability is one who, with or without reasonable

accommodation, can perform the essential functions of a job.

42 U.S.C. § 12111(8).

Essential functions focus on the purpose of the function

and result, rather than the manner in which it is performed.

(Horton expert report p.2); (The Job Placement — ADA

Connection”; “ADA Essential Function Identification, A

Definitive Application of Title I,” 1993).

The essential functions of the job of bartender were

determined by the job analysis performed by Debra J. Horton,

Med., CRC on June 1, 1998. These essential functions were

determined to be as follows: (1) Remove bar brands of liquor

from cabinet, set up in well; (2) Count money in “bank” to

verify, open register; (3) Place beer in ice; (4) Greet

customers, check ID’s when deemed necessary; (5) Take

drink or food orders from customer; (6) Prepare drinks, relay

food orders to kitchen, serve customers; (7) Take payment,

make change for food and drink orders; (8) Clean bar, tables,

ashtrays, bar glasses, bar area; (9) Make judgment call on

sobriety of customers, call cab, arrange for ride or offer hotel

room for night if deemed necessary; and (10) Count money,

13

close register, drop money in vault inside hotel. (Horton

expert report p. 5).

In ADA cases such as the case here, involving actual

disabilities as opposed to perceived disabilities or a history

of a disability, it is usually true that the plaintiff cannot

perform the essential functions of the job without some kind

of reasonable accommodation. Dalton v. Subaru-Isuzu

Automotive, Inc., 141 F.3d 667 (7" Cir. 1998) (emphasis

added). Like the plaintiffs in Dalton, supra, petitioner does

not claim that she could perform all of the essential functions

of the job without any accommodation. However, she is able

to perform all of the essential functions as well as the

marginal functions of her job with the accommodation

provided by the former owners (two directional li ghts directly

over the cash register behind the bar) and the use of a hand-

held magnifier provided by petitioner, herself. (Roberts

Affidavit, p. 4).

Contrary to the findings of the District Court, petitioner

was and is able to perform all of the functions proposed by

the respondents including the proper administration of the

hotel’s Alcohol Management Program which was not

significantly different, if at all from the former owner’s

Alcohol Management Program. At best, Perryman only

performed a cursory examination of petitioner’s near visual

acuity, i.e. she had her identify several denominations of

paper money, identify different types of coins, read some

type of document which had nothing to do with her position

as bartender, etc. The petitioner passed all of these “tests”

without any problem. At no time did anyone attempt to test

petitioner’s distant visual acuity. It was not until after the

fact, i.e., after suit was filed that respondents contended that

petitioner’s distance visual acuity was too poor for her to

14

perform her duties as bartender. There was absolutely no

evidence proffered by the respondents to support

this contention. On the contrary, petitioner demonstrated that

she could perform the essential functions as well as the

marginal functions of the job of bartender. (See Horton

Expert Report p. 5)

Further, the trial court misconstrued petitioner’s

statements in her deposition pertaining to her ability to see

at a distance. Petitioner stated that she had difficulty reading

the smaller letters found on the eye chart at a distance of

twenty feet, not that she had trouble seeing larger objects.

(Petitioner Dep. p. 18).

Although petitioner suffers from a permanent disability,

she was and still is capable of performing the essential

functions and tasks of a bartender.

Ill. THE PETITION SHOULD BE GRANTED

BECAUSE THE JUDGMENT OF THE DISTRICT

COURT AS AFFIRMED BY THE ELEVENTH

CIRCUIT COURT OF APPEALS CONFLICTS WITH

THIS COURT’S PRIOR RULINGS ON THE

VIABILITY OF AN ADA CLAIM WHERE THE

CLAIMANT WAS DECLARED DISABLED FOR SSDI

PURPOSES.

The ADA defines a “qualified individual” to include a

disabled person who “... can perform the essential

functions” of her job “with or without reasonable

accommodation.”

On the other hand, when the SSA determines whether

an individual is disabled for SSDI purposes, it does not take

15

the possibility of “reasonable accommodation” into account

nor need an applicant refer to the possibility of reasonable

accommodation when she applies for SSDI. Consequently,

an ADA suit claiming that the plaintiff can perform her job

with reasonable accommodation may well prove consistent

with an SSDI claim that the plaintiff could not perform her

own job (or other jobs) without it. Cleveland v. Policy

Management Systems Corp., et al., 526 U.S. 795, 119 S. Ct.

1597 (1999). Further, the SSA sometimes grants SSDI

benefits to individuals who not only can work, but are

working. /d. 526 U.S. at 805.

In the case at bar the petitioner was competently and

satisfactorily performing her duties as a bartender but was

limited in the number of hours she was allowed to work while

receiving partial SSDI benefits. -

Due to the fact that petitioner’s employment was

terminated because of her disability, notwithstanding the fact

that she was able to perform the essential functions of

bartender with accommodations provided by herself and her

former employer(s), respondents unlawfully discriminated

against her.

16

IV. THE PETITION SHOULD BE GRANTED

BECAUSE THE JUDGMENT OF THE DISTRICT

COURT AS AFFIRMED BY THE ELEVENTH

CIRCUIT COURT OF APPEALS CONFLICTS WITH

THE LAW PERTAINING TO THE STANDARD TO BE

FOLLOWED FOR THE GRANT OF MOTIONS OF

SUMMARY JUDGMENT.

A Motion for Summary Judgment places an affirmative

burden on the moving party to demonstrate the absence of

genuine issues of material fact and to show that he is entitled

to judgment as a matter of law.'

For purposes of ruling on a Motion for Summary

Judgment, all factual inferences are to be taken against the

moving party and in favor of the opposing party, and a case

is not suitable for summary judgment when there are

undisputed facts from which different inferences might be

drawn and as to which reasonable minds might differ.

On a Motion for Summary Judgment, the Court must

give the non-moving party the benefit of all reasonable

inferences to be drawn from the facts. Snell v. U.S., 680 F.2d

545 (1982); Apcoa, Inc. v. Fidelity National Bank, 906 F.2d

610 (11™ Cir.1990). Where, as here, there are genuine issues

of fact to be tried, summary judgment is not warranted.

1. Bell v. Cameron Meadows Land Company, 669 F.2d 1278

(1982); Howard v. BP Oil Company, Inc., 32 F.3d 520 (11" Cir.

(1994); Joiner v. General Electric Company, 78 F.3d 524 (11" Cir.

1996).

2. Sankovich v. Life Ins. Co. of North America, 638 F.2d 136

(1981); Griesel v. B. D. Hamlin, 963 F.2d 338 (11" Cir. 1992); Irby

v. Bittick, 44 F.3d 949 (11" Cir. 1995).

17

CONCLUSION

Based upon the above-stated facts and cited authority it

is respectfully shown that genuine issues of material fact

exist as to whether petitioner could perform the essential

functions of her position as bartender and was therefore a

“qualified individual with a disability” under the provisions

of the ADA. As the record reflects there are undisputed facts

from which a reasonable inference may be drawn that

petitioner is able to perform all essential functions of the

position of bartender as specified before and after she filed

her complaint.

WHEREFORE, Petitioner respectfully requests that

this Honorable Court reverse the judgment of the Court of

Appeals for the Eleventh Circuit affirming the District

Court’s grant of respondents’ Motion for Summary

Judgment.

Respectfully submitted,

G. SAM BurRNETTE

Attorney for Petitioner

577 Mulberry Street, Suite 1050

Macon, Georgia 31201

(912) 743-4300

APPENDIX

Mek

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la

APPENDIX A — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT DATED AND FILED DECEMBER 9, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-8157

D.C. Docket No-97-00070-5-CV-3-HL

FRANCES D. PEEPLES,

Plaintiff-Appellant,

versus

HOTEL MANAGEMENT, INC.,

Jointly and Severally, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Middle District of Georgia

(December 9, 1999)

Before BIRCH and HULL, Circuit Judges, and HODGES*,

Senior District Judge.

* Honorable William Terrell Hodges, Senior U.S. District

Judge for the Middle District of Florida, sitting by designation.

CLAWS ED

2a

Appendix A

PER CURIAM: AFFIRM2D. See 11th Cir. R. 36-1.!

“Costs taxed against the paintiff-appellant.”

fntered: December 9, 1999

por the Court: Thomas K. Kahn,

clerk

Fy: s/ Matt Davidson

peputy Clerk

ISSUED AS MANDATE: FEB 22 2000

1. 11th Cir. R. 36-1 pro‘des:

When the court determ!es that any of the following

circumstances exist:

(a) the judgment ¢f the district court is based

on findings of act that are not clearly

erroneous;

(b) the evidence # Support of a jury verdict

is sufficient;

(c) the order of a? administrative agency is

supported by sutStantial evidence on the

record as a whole

(d) a summary jxdgment, directed verdict,

or judgment on t'© pleadings is supported

by the record;

(e) the judgment las been entered without a

reversible error 0: ‘#™>

and = Iq 1@Ve no precedential value, the

pearson “aa oe affirmed or enforced without

opinion.

3a

APPENDIX B — ORDER AND JUDGMENT OF

THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF GEORGIA, MACON

DIVISION DATED AND FILED JANUARY 8, 1999

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

CIVIL ACTION

NO. 5:97-CV-70-3

FRANCES D. PEEPLES,

Plaintiff,

v.

WRIGHT INVESTMENT PROPERTIES, INC., HOTEL

MANAGEMENT, INC., DRIVING FORCE, L.L.C.,

_ MACON, GA HOTEL PARTNERS, L.P.,

and STACEY PERRYMAN,

Defendants.

ORDER

Plaintiff has filed claims for violation of the Americans

with Disabilities Act of 1990 (“ADA”), the Georgia Equal

Employment for Persons with Disabilities Code

(“GEEPDC”) and intentional and negligent infliction of

emotional distress. Before the Court is Defendants’ Motion

for Summary Judgment. For the reasons set forth herein, the

Motion is GRANTED and the case DISMISSED.

4a

Appendix B

FACTS

Defendant Macon, Georgia Hotel Partners, L.P. (“HP”)

owns a Holiday Inn located off the I-475 bypass in Macon.

Defendant Hotel Management, Inc. (“HMI”) manages the

day-to-day operations of the Holiday Inn. Defendant Driving

Force L.L.C. is the General Partner of HP and Defendant

Wright Investment Properties, Inc. is a real estate

development company. Defendant Stacy Perryman was

formerly employed by HP as General Manager of the Holiday

Inn during the relevant time period.

HP purchased the Holiday Inn in January 1996 and

invested a substantial amount in improving the property. HP

also hired anew management team and offered employment

to the remainder of the hotel staff. Plaintiff Frances Peeples

(“Peeples”), who had been employed as lounge manager by

the previous owner, was hired as a bartender, subject to her

completing a 90-day evaluation period.

Peeples began having problems with her vision as early

as 1991. Despite surgery, she continues to have blurriness

and blind spots in her vision. In April 1996, her vision was

measured at 20/200 left eye and 20/400 right eye, making

her legally blind in Georgia. She has lost peripheral vision,

has difficulty seeing 20 feet away and has blockage for part

of her vision. In November 1995, she applied for Social

Security Administration (“SSA”) benefits, stating that her

visual impairment rendered her so “disabled” she was

“unable to work.” She received disability benefits the entire

time she worked for HP.

Sa

Appendix B

Prior to its acquisition by HP, the Holiday Inn operated

without a formal alcohol management policy. One of the first

things HP did after it acquired the property was implement

such a policy, the goal of which was to help the hotel avoid

dram shop liability. As part of this plan, bartenders (including

Peeples) were responsible for ensuring that minors were not

served or otherwise drinking in the lounge, that licenses and

other forms of personal identification were authentic, and

that persons who were obviously intoxicated were not served.

A few weeks after Peeples was hired General Manager

Perryman, informed by others that Peeples was suspected of

drinking on the job, questioned her about it. Peeples denied

the accusations and took an alcohol test, which turned out

negative. In a subsequent meeting about the incident,

Perryman questioned Peeples about her watery eyes, at which

point Peeples explained her vision problems. She explained

that she knew the buttons on the cash register and the alcohol

bottles only by memory and that she could see numbers on

credit cards with a magnifying glass, although she had

difficulty ensuring they were not transposed.

In a meeting the next day, Perryman expressed her

concerns about Peeples’ ability to administer the Alcohol

Management Program and with whether the hotel’s insurance

company would allow a legally blind bartender to serve

liquor. She told Peeples that she would move her to work in

the dining room as a banquet server, a position she assured

would provide at least the same base pay and tips. The parties

disagree as to how what happened next transpired, but

Peeples ultimately refused the transfer and was terminated.

6a

Appendix B

DISCUSSION

A. ADA claim

In order to establish a prima facie case of disability

discrimination under the ADA, Plaintiff must prove each of

the following elements: (1) she has a “disability,” (2) she

was “qualified” for the position in question, and (3) she was

discriminated against because of her disability. Witter v.

Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11" Cir. 1988).

The facts of this case show that Plaintiff cannot meet the

second element because she was not qualified for the

position.

1. Qualified Individual With a Disability

“The term “qualified individual with a disability” means

an individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that the individual

holds or desires.” 42 U.S.C. § 12111(8). The facts of this

case, including, Defendants’ Alcohol Management Program

(“AMP”) and Plaintiff's own testimony, establish that

Plaintiff was unable to perform the essential functions of

her job and that no reasonable accommodation existed which

would allow her to do so.

Plaintiffs 20/200 left eye and 20/400 right eye vision at

the time of her employment made her legally blind in

Georgia. In addition, there are parts of her vision where there

is no line of sight, due to blockage from scar tissue. She also

has difficulty seeing more than 20 feet away. Her impairment

-

7a

Appendix B

is permanent and cannot be corrected through the use of

surgery or visual aids.

There is no dispute that proper administration of the

AMP was an essential function of the job in question. In

order to properly administer the AMP, bartenders were

required to monitor the lounge, which is more than 50 feet

long, to prevent obviously intoxicated persons from

continuing to drink. In addition, they were required to protect

against underage drinking, which includes detecting

fraudulent driver’s licenses, as well as monitoring the lounge

to prevent minors from sharing drinks with of-age patrons.

Because there was only one bartender per shift, that person

was the sole individual charged with enforcing the AMP.

Plaintiff steadfastly maintains that she could perform

the essential functions of the job as she had done under

previous ownership. She points to testimony from a

vocational expert, Debra Horton, who Plaintiff retained to

assess her abilities in relation to certain job tasks found in a

bar setting. Ms. Horton tested Plaintiffs ability to tend bar

in a simulated work setting. The test, which was administered

in the bar of a local Best Western, was based on a description

of general requirements for bartenders taken from a Georgia

Department of Labor Handbook and included Plaintiff

performing tasks such as setting up the bar, mixing drinks,

making change, and reading birth dates on drivers’ licenses.

Ms. Horton reached her conclusions based on her

observations while administering the tests, an interview with

Ms. Peeples about her performance and her separation notice.

Ms. Horton’s assessment found that Plaintiff did not

demonstrate a significant risk. However, a close review of

8a

Appendix B

Ms. Horton’s report and subsequent deposition reveals little

evidence of any relevance, so far as this case is concerned.

Significantly, Ms. Horton never reviewed the hotel’s AMP.

As aresult, her tests and subsequent opinion did not include

any analysis of Ms. Peeples’ ability to perform certain tasks

Defendants felt were essential to the job, e.g., detecting the

level of intoxication of bar patrons, checking for fake drivers’

licenses, and insuring that minors were not surreptitiously

sharing drinks with of-age patrons (all of which necessarily

involve subtle visual inspection). There is nothing in the

record to suggest Ms. Peeples could adequately perform any

of these tasks at the Holiday Inn bar (which appears to have

been significantly larger than the Best Western bar at which

Plaintiff was tested), nor is there anything to suggest that

these tasks were not essential functions of the bartender

position.

Perhaps most importantly, Ms. Peeples is not entitled to

define the essential functions of the job. Simply because prior

ownership may have had a less strict description of the

essential functions of the job does not mean Defendants in

this case were required to define the job in the same manner.

It is also of no consequence that Ms. Peeples felt she could

perform these tasks by providing her own reasonable

accommodation — a magnifying glass. While this may have

improved her near visual acuity for performing such tasks

as reading the dates on licenses and the labels on liquor

bottles, the Court can imagine no circumstance — and

Ms. Peeples has suggested none — in which this would assist

her in performing the previously listed distance vision related

tasks for which she was never tested by Ms. Horton. Ms.

Peeples has also not suggested any other accommodation

9a

Appendix B

that would allow her to perform those job functions. This is

because no such accommodation exists for correcting

Ms. Peeples’ permanent disability. While the Court is

sympathetic to the plight of Ms. Peeples, the fact is that she

is not qualified to perform the essential functions of the job,

as defined by Defendants. Her ADA claim must therefore

be DISMISSED, as well as her GEEPDC and emotional

distress claims, which were proper before the Court only as

pendant claims. Summary judgment is therefore GRANTED

to Defendants.

SO ORDERED, this the 8 day of Jan, 1994.

s/ Hugh Lawson

HUGH LAWSON, JUDGE

10a

Appendix B

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

Case no. 5:97-CV-70-3(HL)

FRANCES PEEPLES,

Plaintiff,

v.

WRIGHT INVESTMENT PROPERTIES, INC., HOTEL

MANAGEMENT, INC., DRIVING FORCE, L.L.C.,

MACON, GA HOTEL PARTNERS, L.P.,

and STACEY PERRYMAN,

Defendants.

JUDGMENT

The Court by Order dated and filed January 8, 1999,

having granted Defendant’s Motion for Summary Judgment,

JUDGMENT is hereby entered in favor of Defendants

and against Plaintiff.

This 8th day of January, 1999.

GREGORY J. LEONARD,

CLERK

By: s/ Lee Ann Purvis

Lee-Ann Purvis, Deputy Clerk

lla

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT DENYING PETITION FOR REHEARING

DATED AND FILED FEBRUARY 9, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-8157

FRANCES D. PEEPLES,

Plaintiff-Appellant,

versus

HOTEL MANAGEMENT, INC.,

Jointly and Severally, et al.,

Defendants-Appellees.

On Appeal from the United States District Court for the

Middle District of Georgia

ON PETITION(S) FOR REHEARING AND PETITION(S)

- FOR REHEARING EN BANC

(Opinion , imc. 19... Fag).

Before: BIRCH and HULL, Circuit Judges, and *HODGES,

Senior District Judge.

\

* Honorable William Terrell Hodges, Senior U.S. District

Judge for the Middle District of Florida, sitting by designation.

12a

Appendix C

PER CURIAM:

The Petition(s) for Rehearing are DENIED and no member

of this panel nor other Judge in regular active service on the

Court having requested that the Court be polled on rehearing

en banc (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Petition(s) for Rehearing

En Banc are DENIED.

ENTERED FOR THE COURT:

s/ Frank M. Hull

UNITED STATES CIRCUIT JUDGE