Queen E. Parker v. Economic Opportunity for Savannah-Chatham County Area, Inc. , 587 F. App'x 631 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11743
Non-Argument Calendar
________________________
D.C. Docket No. 4:12-cv-00315-WTM-GRS
QUEEN E. PARKER,
Plaintiff-Appellant,
versus
ECONOMIC OPPORTUNITY FOR
SAVANNAH-CHATHAM COUNTY AREA, INC.,
JOHN H. FINNEY,
TERRY TOLBERT,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(October 1, 2014)
Before MARCUS, WILLIAM PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Queen Parker appeals the grant of summary judgment to her former
employer, Economic Opportunity for Savannah-Chatham County Area, Inc.
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(“Economic Opportunity”), its executive director John H. Finney, and its deputy
director Terry Tolbert, in her lawsuit alleging retaliation under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). Parker argues that: (1) the
district court erred by granting summary judgment because there were disputed
issues of fact concerning the actions of Economic Opportunity, Finney, and
Tolbert; (2) the district court improperly denied her motion for partial summary
judgment on liability, because she presented direct evidence that she was
terminated for opposing the unlawful actions; and (3) summary judgment on her
ADA retaliation claim arising under the participation clause was improper, since
Economic Opportunity, Finney, and Tolbert did not specifically move for summary
judgment on that claim. After careful review, we affirm. 1
We review a grant of summary judgment de novo, construing the facts and
drawing all reasonable inferences from those facts in the light most favorable to the
nonmovant. Holly v. Clairson Indus., L.C.C., 492 F.3d 1247, 1255 (11th Cir.
2007). A party may move for summary judgment, “identifying each claim or
defense -- or the part of each claim or defense -- on which summary judgment is
sought.” Fed.R.Civ.P. 56(a). Summary judgment is appropriate only “if the
1
However, the motion by Economic Opportunity for Savannah-Chatham County Area, Inc.,
John H. Finney, and Terry Tolbert for an award of damages and costs pursuant to 28 U.S.C. §§
1912 and 1927, and Federal Rule of Appellate Procedure 38 is DENIED.
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movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Id.
First, we are unpersuaded by Parker’s claim that the district court erred in
granting summary judgment on her retaliation claim under the Opposition Clause
of the ADA. The Opposition Clause provides that “[n]o person shall discriminate
against any individual because such individual has opposed any act or practice
made unlawful by” the Act. 42 U.S.C. § 12203(a). It creates a prohibition on
retaliation under the ADA similar to Title VII’s prohibition on retaliation;
therefore, we assess ADA retaliation claims under the same framework employed
for retaliation claims arising under Title VII. Stewart v. Happy Herman's Cheshire
Bridge, 117 F.3d 1278, 1287 (11th Cir. 1997). A claim of retaliation under the
ADA gives rise to a private cause of action. 42 U.S.C. §§ 12203(c).
To establish a prima facie case of retaliation under the ADA, a plaintiff must
show that: (1) she engaged in a statutorily protected expression; (2) she suffered an
adverse employment action; and (3) there was a causal link between the adverse
action and her protected expression. Stewart, 117 F.3d at 1287. A plaintiff may
establish her prima facie case through direct evidence or circumstantial evidence.
Carter v. Three Springs Res. Treatment, 132 F.3d 635, 641 (11th Cir. 1998). At
issue here is whether Parker established the first prong of her prima facie case --
which a plaintiff can demonstrate by showing that she reasonably believed she was
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opposing an employer’s unlawful conduct. Howard v. Walgreen Co., 605 F.3d
1239, 1244 (11th Cir. 2010). While the opposed act need not actually be unlawful,
a plaintiff must have a subjective good faith belief that the opposed act is unlawful,
and this belief must also be objectively reasonable. Id.
Parker’s retaliation claim implicates Title III of the ADA, which seeks to
provide individuals with disabilities access to public accommodations owned,
leased, or operated by private entities. See 42 U.S.C. § 12182(a). Under Title III,
a public accommodation “shall remove architectural barriers in existing facilities . .
. where such removal is readily achievable.” 28 C.F.R. § 36.304(a). This may
include creating designated accessible parking spaces. Id. § 36.304(b)(18).
Here, the district court properly granted summary judgment in favor of
Economic Opportunity because Parker did not establish that she was engaged in a
statutorily protected expression. First, it was not unlawful for Economic
Employment to refuse to enforce parking in a handicapped parking space located
on a public city street because Economic Opportunity satisfied the requirements of
Title III of the ADA by having a handicapped parking space available in its private
lot. See id.
Second, Parker failed to show a reasonable belief that the actions of
Economic Opportunity, Finney, and Tolbert were unlawful under the ADA.
Assuming, arguendo, that Parker’s belief was subjectively reasonable, she did not
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demonstrate that it was objectively reasonable. The subject handicapped parking
spaces were located on a public street, and the police department was responsible
for enforcement of handicapped parking rules in public parking spaces. Moreover,
Parker actually called the police to enforce the parking rules with respect to the
subject handicapped space. Thus, it was not objectively reasonable to believe that
Economic Opportunity, Finney, and Tolbert were required to direct an employee to
move her car from a public parking spot for a violation of parking regulations.
Nor did the district court err in granting summary judgment on Parker’s
retaliation claim under the Participation Clause of the ADA. Under the
Participation Clause, an employee is protected from retaliation by her employer if
she “made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under” the Act. 42 U.S.C. § 12203(a). With
respect to the identical clause found in Title VII, we have held that the clause
exists to protect proceedings and activities which occur in conjunction with or after
the filing of a formal charge with the Equal Employment Opportunity Commission
(“EEOC”). EEOC v. Total Sys. Servs., 221 F.3d 1171, 1174 (11th Cir. 2000).
Thus, at a minimum, some employee must file a charge with the EEOC or
otherwise instigate proceedings under the statute for the conduct to fall within the
purview of the participation clause. Id. at 1174 n.2.
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Here, Parker’s complaint did not allege a claim under the participation
clause of the ADA. Parker did not aver that, prior to her termination, she filed a
claim with the EEOC regarding discrimination in violation of the ADA or assisted
in the investigation of another employee’s formal ADA claim. To the extent that
Parker alleged that she was assisting the police department with an investigation
related to the illegal use of the handicapped parking space, this investigation
related to parking regulations, and not ADA violations. But assuming, arguendo,
that Parker did allege a participation clause claim, Economic Opportunity, Finney,
and Tolbert moved for summary judgment on all claims and made arguments
addressing each of the allegations in the complaint. Accordingly, the district court
properly granted summary judgment in their favor on all claims. 2
AFFIRMED.
2
Moreover, because Parker only cites the language of §12203(b) in her main brief, with no
further elaboration, she has abandoned this argument. See Singh v. United States AG, 561 F.3d
1275, 1278 (11th Cir. 2009) (holding that merely stating an issue exists, without further
argument or discussion, constitutes abandonment of that issue). To the extent she attempts to
delineate the claim in her reply brief, issues raised for the first time on reply are not reviewed.
See Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).
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