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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 1231

## Text

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
Re

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1002%3A1. Public record. Not legal advice.