Sanquinette Porterfield v. Social Security Administration ( 2021 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-10538
Non-Argument Calendar
________________________
D.C. Docket No. 2:17-cv-00939-JEO
SANQUINETTE PORTERFIELD,
Plaintiff - Appellant,
versus
SOCIAL SECURITY ADMINISTRATION,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(August 30, 2021)
Before JORDAN, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
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Sanquinette Porterfield appeals from the district court’s grant of summary
judgment in favor of her employer, the Social Security Administration, in her
disability discrimination suit filed pursuant to the Rehabilitation Act of 1973, U.S.C.
§ 794 et seq. In her complaint, Mrs. Porterfield alleged that the SSA discriminated
against her due to her disabilities—anxiety, depression, carpal tunnel syndrome, and
migraines—and failed to make any reasonable accommodation.
On appeal, Mrs. Porterfield argues that the district court erred in ruling that
she failed to establish a prima facie case. For the reasons set out below, we affirm.
I
Mrs. Porterfield began employment as a Teleservice Representative/Customer
Service Representative for the SSA in 2007. Her job was to her to answer phone
calls from the public at the Teleservice Center in Birmingham, Alabama.
In 2009, Mrs. Porterfield fell and injured her left wrist, which required surgery
and left her “with a permanent disability as a result of the injury.” After taking
several days off due to her surgery, Mrs. Porterfield returned to work. She was able
to use only her right hand to perform her duties. Consequently, she developed carpal
tunnel syndrome in her right wrist, for which she had surgery in 2011. Mrs.
Porterfield has stated that her wrist injuries were work-related and thus covered by
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worker’s compensation. As a result of her treatment for carpal tunnel, she stated that
she was “forced to take time [off] work to receive treatment and recover.”
Mrs. Porterfield also suffers from migraine headaches. She provided the SSA
with a letter dated May 19, 2014, from her physician which stated:
Mrs. Porterfield is being treated in my office for chronic daily
headaches and migraines, these are chronic life-long conditions.
Migraines are unpredictable and may flare up from time to time. If the
migraines cannot be controlled with the patient[’]s medications she
may be absent from work.
D.E. 58-1 at 45. In an effort to prevent getting migraine headaches from her
computer station while at work, Mrs. Porterfield requested an accommodation and
the SSA purchased a screen protector for her computer after her request was
approved. Mrs. Porterfield routinely took leave when her medication failed to
manage her migraines. The SSA never refused her leave time for her migraine
headaches and designated those absences as leave time under the Family Medical
Leave Act, 29 U.S.C. § 2615. See Porterfield Dep. at 71, 72-73, 106. Mrs. Porterfield
developed anxiety and depression and stated that her chronic migraines, combined
with her other disabilities, forced her to request intermittent leave under the FMLA.
The SSA provides several different types of leave to its employees, including
sick leave, annual leave, and leave without pay (“LWOP”). Mrs. Porterfield asserts
that all of her absences from December 4, 2012, through February 25, 2013, were
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due to her worker’s compensation and associated treatment, and that her absences
from February 26, 2013, through February 17, 2015, were due to her migraines and
other disabilities and that such leave thus qualified as workers compensation and/or
FMLA leave. See D.E. 39 at 6. Furthermore, she contends that she “supported her
disability condition with medical documentation from her physician.” Id.A
On June 9, 2014, her first line supervisor, George Green, counseled Mrs.
Porterfield over her leave situation and informed her that her absences were “in
violation of regulations and policies of the SSA.” In response, in July of 2014, Mrs.
Porterfield contacted one of the SSA’s Equal Employment Opportunity counselors.
Mrs. Porterfield then filed a formal complaint with the Equal Employment
Opportunity Commission (“EEOC”), in which she asserted that the SSA had
subjected her to discrimination when her supervisor, Mr. Green, conducted the
interview to discuss her LWOP usage.
Mr. Green gave a statement to the EEOC as part of the charge of
discrimination investigation. During his interview, Mr. Green told the EEOC
investigator “that the leave that was discussed [during the counseling interview] was
the leave [Mrs. Porterfield] requested for her migraine headaches.” D.E. 62, Exh. 15
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at 8. Mr. Green later testified, however, that the counseling session was due to her
“leave balance” and “for the leave that she had taken.” Green Dep. at 54-55.
In a “Record of Interview,” Mr. Green wrote that the counseling interview
with Mrs. Porterfield was to “discuss her leave record and the requirements for
requesting and obtaining approved leave in advance.” D.E. 58-1 at 41. The Record
of Interview states that during the counseling Mr. Green discussed with Mrs.
Porterfield the following: (1) her negative sick leave balance was 223.5 hours, and
that she had a negative annual leave balance of negative 33 hours, which he
described as being at a “critical stage and [that she] needs to make an effort to accrue
leave;” (2) Mrs. Porterfield had used 79.5 hours of advanced annual leave, out of a
maximum allowance of 80 hours, and that advanced sick leave would only be
granted in cases of injury or serious illness; (3) Mr. Green explained to Mrs.
Porterfield the process by which she should apply for leave, and the procedure for
calling in for leave when and if it cannot be anticipated; (4) Mr. Green discussed her
“frequent use of leave and the manner in which she requests sick leave,” including
“long periods of sick leave over the past nine [ ] months” that had “become a pattern
for her since July 2013” (to which Mrs. Porterfield noted that she always had
supplied documentation when requesting leave); and (5) Mr. Green discussed with
her the effects of LWOP, and that LWOP was not an employee right, but rather was
granted only in certain circumstances, including 12-week FMLA leave which
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requires specific documentation. See id. at 41-43. Additionally, Mr. Green informed
Mrs. Porterfield that going forward she needed to report to Section Manager Rhonda
Groveman for further LWOP requests as she had surpassed 240 hours of LWOP,
and thus her immediate supervisor lacked authority to grant additional LWOP. Mr.
Green stated that as of June 9, 2014, Mrs. Porterfield had taken 601.75 hours of
LWOP.
After Mr. Green placed a record of the leave counseling in her personnel file,
Mrs. Porterfield claims that he disciplined her for taking leave due to her disability.
Mrs. Porterfield stated that she was counseled “under the pretext that the leave
counseling…was [Mr. Green’s] attempt to provide information to [her] about her
lack of leave.” Mrs. Porterfield does not dispute that the leave time balances were
correct, but does not recall whether Mr. Green went over the negative leave balances
with her. Mrs. Porterfield testified that Mr. Green had not covered all the above
during their interview, which is why “when [she] got this write-up, [she] didn't agree
with it and [she] rebutted it.” Porterfield Dep. at 66.
Mrs. Porterfield believes that she was counseled for taking approved leave
due to her disability, even though the SSA’s employee policies “explicitly state that
leave for [w]orker’s [c]ompensation and FMLA should not be considered a leave
pattern indicating an abuse of sick leave.” Id. at 8. During the relevant period,
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however, Mrs. Porterfield utilized a variety of categories of leave for a number of
different reasons, including: (1) annual leave for vacation and advanced leave for
trips with her daughter, see D.E. 58, Exh. 1 at 45-47; (2) leave to care for her
daughter and her own hospital stay, see id. at 64; and (3) worker’s compensation
injuries, migraines, and fibromyalgia, see id. at 38-39.
Five months later, in December of 2014, Mrs. Porterfield received her PACS
Performance Plan Non-Manager’s Appraisal. This Performance Appraisal ranked
her in four areas: interpersonal skills, participation, demonstration of job knowledge,
and achievement of business results. Mrs. Porterfield received a 5 out of 5 rating in
the first three categories. In the final category, however, she received a rating of 3
out of 5, causing her overall rating to drop to a 4.5. In the two prior years, she had
received a rating of 5. During her performance appraisal discussion with Mr. Green,
Mrs. Porterfield objected to her rating for achievement of business results stating:
I totally disagree with this rating, you can not rate me when I'm not
here. you can only rate me when I am here. How can you do an
outstanding job [and] achieve the agency business result[s] when you
are not here to service the American public.
D.E. 62-13 at 4. Mrs. Porterfield testified that she had received a lower bonus as a
result of her rating and states that Mr. Green informed her that the reason for the
lowered rating was because of her leave. See Porterfield Dep. at 81-82.
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B
In addition to her adverse employment action claim, Mrs. Porterfield alleged
that the SSA failed to provide her with any reasonable accommodation regarding her
disability. She claimed that the nature of her migraines, as detailed in her doctor’s
note, essentially required that the SSA provide her with intermittent leave, with little
to no notice, on the days that her migraine headaches could not be managed. The
SSA argued that Mrs. Porterfield never submitted a request for such a reasonable
accommodation and that even if she had, all of her leave requests were granted so it
never failed to provide an accommodation.
Without addressing whether Mrs. Porterfield’s doctor’s note amounted to a
request for a reasonable accommodation, the district court found that the
accommodation allegedly requested was unreasonable as a matter of law. The court
reasoned that her request essentially amounted to indefinite intermittent leave
whereby she would be permitted to come and go from work whenever she got a
migraine. Mrs. Porterfield timely appealed.
II
We review a district court’s summary judgment order de novo. See Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgement is
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appropriate when the evidence, viewed in the light most favorable to the nonmoving
party, presents no genuine dispute of material fact and the movant is entitled to
judgement as a matter of law. See Fed. R. Civ. P. 56(a). An issue of fact is material
if it “might affect the outcome of the suit under governing law” and it is genuine “if
the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Western Grp. Nurseries, Inc. v. Ergas, 167 F.3d 1354, 1360–61 (11th
Cir.1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
However, “an inference based on speculation and conjecture is not reasonable.” Ave.
CLO Fund, Ltd., et al. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013).
Similarly, a “mere scintilla of evidence” supporting the nonmoving party’s position
will not suffice to defeat a grant of summary judgment. See Brooks v. Cty. Comm’n
of Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006) (quotation marks
omitted).
The Rehabilitation Act prohibits federal agencies from discriminating in
employment against otherwise-qualified individuals with disabilities. See Mullins v.
Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000). The standards for determining
liability under the Rehabilitation Act are the same standards as the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101. See Ellis v. England, 432 F. 3d 1321,
1326 (11th Cir. 2005) (cases involving the ADA “are precedent” for those involving
the Rehabilitation Act); Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir.
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2017). The burden for establishing causation under the Rehabilitation Act, however,
requires proof that the individual was discriminated against “solely by reason of her
disability,” while the ADA requires a lesser showing of “but for” causation. See
Schwarz v. City of Treasure Island, 544 F.3d 1201, 1212 n.6 (11th Cir. 2008).
A plaintiff may prove disability discrimination in two ways—disparate
treatment or a failure to make a reasonable accommodation. Disparate treatment
involves discriminatory intent or animus and occurs when a disabled individual is
treated differently than a non-disabled individual. See 42 U.S.C. § 12112(b). A
failure to make a reasonable accommodation requires no animus and occurs where
a covered entity fails to fulfill its affirmative duty to make “reasonable
accommodations to the known physical or mental limitations of an otherwise
qualified individual with a disability who is an applicant or employee, unless such
covered entity can demonstrate that the accommodation would impose an undue
hardship on the operation of the business.” 42 U.S.C. § 12112(b)(5)(A). “The
reasonable accommodation requirement is best understood as a means by which
barriers to the equal employment opportunity of an individual with a disability are
removed or alleviated.” 29 C.F.R. § 1630, app. (2003).
A plaintiff may support her claim of discrimination through direct or
circumstantial evidence. See Jefferson v. Sewon America, Inc., 891 F.3d 911, 921
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(11th Cir. 2018). “Direct evidence is evidence that, if believed, proves the existence
of a fact without inference or presumption.” Id. Only the most blatant remarks,
whose intent could be nothing other than to discriminate on the basis of the protected
classification, constitute direct evidence of discrimination. See E.E.O.C. v. Alton
Packaging Corp., 901 F.2d 920, 923 (11th Cir. 1990) (Title VII case) (holding
production manager’s statements to black employee that “you people can’t do a ____
thing right” constituted direct evidence).
A disparate treatment claim under the Rehabilitation Act based on
circumstantial evidence is analyzed under the burden-shifting approach of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Ctr. v. Sec’y, Dep’t
of Homeland Sec., Customs & Border Prot. Agency, 895 F.3d 1295, 1303 (11th Cir.
2018). Under this burden shifting framework, if the plaintiff establishes her prima
facie case of disability discrimination, and the employer proposes legitimate,
nondiscriminatory reasons for its decision, then the plaintiff must show (or create an
issue of fact) that the reasons were a pretext for discrimination. See id.To establish a prima facie case of disability discrimination, a plaintiff must
demonstrate that: (1) she has a disability; (2) she was a “qualified individual” for the
position; and (3) she was subjected to unlawful discrimination as a result of her
disability. See Sutton v. Lader, 185 F.3d 1203, 1207-08 (11th Cir. 1999). In order to
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establish the third element, the plaintiff must show that she suffered an adverse
employment action because of her disability. See Doe v. Dekalb County Sch. Dist.,
145 F.3d 1441, 1445 (11th Cir. 1998) (ADA case).
As noted earlier, under the Rehabilitation Act the plaintiff must prove that the
adverse employment action was “solely by reason of” her disability. See 29 U.S.C.
§ 794(a). We have previously held, however, that a plaintiff cannot prevail if she
shows that her employer based the adverse employment action partially on her
disability and partially on other factors. See Ellis 432 F.3d at 1326 (Rehabilitation
Act case holding that “[i]t is not enough [under the Rehabilitation Act] for a plaintiff
to demonstrate that an adverse employment action was based partly on his
disability.”). To establish an adverse employment action, “an employee must show
a serious and material change in the terms, conditions, or privileges of employment
… as viewed by a reasonable person in the circumstances.” Davis v. Town of Lake
Park, 245 F.3d 1232, 1239 (11th Cir. 2001), overruled on other grounds by
Burlington Northern v. White, 548 U.S. 53 (2006). Moreover, the “asserted impact
cannot be speculative and must at least have a tangible adverse effect on the
plaintiff’s employment.” Id.12
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III
We conclude that the district court did not err in granting summary judgment
to the SSA, as Mrs. Porterfield failed to establish a prima facie case of disability
discrimination. On the adverse employment action claim, Mrs. Porterfield’s June
2014 counseling session was not an adverse employment action. Her lower
performance evaluation score, however, was an adverse employment action because
she received a lower bonus as a result. Nevertheless, the claim falls because Mrs.
Porterfield failed to demonstrate that the adverse employment action was taken
solely due to her disability. We hold that Mrs. Porterfield’s failure to accommodate
claim fails. Every time she requested leave due to her migraines as an
accommodation, the SSA approved the request, and thus the SSA never failed to
accommodate her. We discuss each of the claims separately.
A
Mrs. Porterfield asserts two potential adverse employment actions: her
counseling session with Mr. Green and the decreased PACS performance rating. In
order to establish an adverse employment action, “an employee must show a serious
and material change in the terms, conditions, or privileges of employment … as
viewed by a reasonable person in the circumstances.” Davis, 245 F.3d at 1239. After
the counseling session, Mrs. Porterfield retained the same job, duties, hours, pay
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rate, benefits, and ability to apply for promotions. See Porterfield Dep. at 79-82, 85.
The only detectable change was that, as a result of her LWOP balance, her first line
manager was unable to approve further LWOP and she had to request such leave
from a different supervisor. We agree with the district court that simply having to
request leave from a different supervisor cannot be characterized as a material job
consequence, particularly considering Mrs. Porterfield’s testimony that all
subsequently requested leave was approved.
The same cannot be said, however, of her lowered performance evaluation
score. The lowered performance evaluation score was a materially adverse
employment action because it lowered her bonus. See Crawford v. Carrol, 529 F.3d
961, 974 (11th Cir. 2008) (holding an employee suffered an adverse employment
action when she received an unfavorable performance review that affected her
eligibility for a merit pay increase). Mrs. Porterfield failed, however, to demonstrate
a genuine issue of material fact as to whether the adverse employment action was
taken “solely by reason of” her disabilities. See 29 U.S.C. § 794(a). Even assuming
that Mrs. Porterfield was able to establish facts indicating that the adverse
employment action taken was based to some degree on her disability, such a finding
is insufficient to satisfy the “solely by reason of” requirement. See Ellis 432 F.3d at
1326 (finding it was “not enough for a plaintiff to demonstrate that an adverse
employment action was based partly on his disability.”). There is some evidence that
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the adverse employment action was based on her disability, such as Mr. Green’s
comment to the EEOC, shifting justifications, and conflicts with SSA policy. But
Mrs. Porterfield had also accrued hundreds of hours of annual leave, sick leave,
advanced annual leave, advanced sick leave, and LWOP. The record indicates that
she took leave for various different reasons—vacation leave, leave related to her
workers’ compensation, FMLA leave for her daughter's asthma, and leave related to
her migraines. Ultimately, the evidence offered amounts to no more than a scintilla
that the rating decrease was due solely to her disability. As a result, Mrs. Porterfield
failed to establish a prima facie claim of disability discrimination. The district court,
therefore did not err in granting summary judgement to the SSA.
Mrs. Porterfield asserts that the SSA failed to provide her with reasonable
accommodation by not providing her leave required for her migraines. In the context
of a failure to accommodate claim, “a qualified individual is discriminated against
when his employer fails to reasonably accommodate his disability.” See D’Angelo
v. ConAgra Foods, Inc., 422 F.3d 1220, 1236 (11th Cir. 2005). “[A]n employer's
failure to reasonably accommodate a disabled individual itself constitutes
discrimination under the [Rehabilitation Act], so long as that individual is ‘otherwise
qualified,’ and unless the employer can show undue hardship.” Holly v. Clairson
Indus., L.L.C., 492 F.3d 1247, 1262 (11th Cir. 2007).
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A reasonable accommodation is one that would allow the employee to
perform the essential functions of the job. See Lucas v. W.W. Grainger, Inc., 257
F.3d 1249, 1255 (11th Cir. 2001). But, “a plaintiff cannot establish a claim under the
Rehabilitation Act alleging that the defendant discriminated against [her] by failing
to provide a reasonable accommodation unless [she] demanded such an
accommodation.” Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361,
1364 (11th Cir. 1999) (citing Wood v. President and Trustees of Spring Hill College
in the City of Mobile, 978 F.2d 1214, 1222 (11th Cir. 1992)). Notably, we have yet
to determine “precisely what form the request [for a reasonable accommodation]
must take.” Holly, 492 F.3d at 1261 n. 14. Still, “a plaintiff can be said to have made
a request for accommodation when the defendant has enough information to know
of both the disability and desire for an accommodation.” Hunt v. Aimco Properties,
L.P., 814 F.3d 1213, 1226 (11th Cir. 2016). Mrs. Porterfield provided the SSA with
a note from her doctor (updated every six months) which she argues should have
allowed her to be absent for her migraines as much as needed, based on the SSA’s
policy of allowing an unlimited amount of leave without pay as long as it was not
for an inappropriate purpose. But indefinite leave is not reasonable as an
accommodation because “[n]othing in the text of the reasonable accommodation
provision requires an employer to wait for an indefinite period for an
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accommodation to achieve its intended effect.” Wood v. Green, 323 F.3d 1309, 1313
(11th Cir. 2003).
We need not address the district court’s determination that Mrs. Porterfield’s
request for unlimited intermittent leave was akin to a request for indefinite leave that
is unreasonable as a matter of law. Nor do we need to decide if the documentation
provided amounted to a request for a reasonable accommodation. Mrs. Porterfield’s
claim ultimately fails for the simple reason that a claim for a failure to accommodate
necessarily presupposes a failure, on the part of the SSA, to accommodate. Even
assuming that her documentation was a request for a reasonable accommodation,
and that she did not ask for indefinite leave, Mrs. Porterfield testified that she was
never denied any leave when she requested it. Every time she asked for leave due to
her migraines the SSA approved the request and so it never failed to accommodate.
Thus, there is no genuine issue of material fact, and the district court did not err in
granting summary judgment on this claim to the SSA.
IV
The district court did not err in granting summary judgment to the SSA on
Mrs. Porterfield’s claims under the Rehabilitation Act.
AFFIRMED.
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