Hattie A. Dickerson v. Secretary, Department of Veterans Affairs , 489 F. App'x 358 ( 2012 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13474
Non-Argument Calendar
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D.C. Docket No. 5:08-cv-00122-CAR
HATTIE A. DICKERSON,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF
VETERANS AFFAIRS AGENCY,
CARL VINSON VA MEDICAL CENTER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(September 7, 2012)
Before HULL, MARTIN and ANDERSON, Circuit Judges.
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PER CURIAM:
Hattie A. Dickerson, proceeding pro se, appeals the district court’s order
granting the defendants’ summary judgment motion on her claim of disability
discrimination under Section 501 of the Rehabilitation Act, 29 U.S.C. § 701, et
seq. On appeal, Dickerson argues that, despite her disability involving
occupational asthma and multiple chemical sensitivity, she could perform the
essential functions of her job as a nurse at the Carl Vinson Veterans
Administration Medical Center (“the VA”), with reasonable accommodation. She
asserts that she provided the VA with a list of job positions to which she could
have been reasonably reassigned that would have allowed her to perform her job’s
essential functions and not caused the VA undue hardship. She contends that the
VA nonetheless discriminated against her by not providing her reasonable
accommodation.1
1
Dickerson mentions the issue of whether the district court properly denied her motion
for reconsideration. However, she has abandoned this issue because she has not briefed it. See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro se
litigants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.”) (citation
omitted). We also note that, in addition to her claim for discrimination in violation of the
Rehabilitation Act, Dickerson lists a myriad of other claims deriving from various statutes,
regulations, and the VA’s own policies and procedures. Virtually all of these other claims were not
asserted in Dickerson’s complaint and are being raised for the first time on appeal. We therefore do
not consider them. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330-31 (11th
Cir. 2004).
To the extent Dickerson’s complaint touches upon or makes bare reference to other theories
or claims, we need not address them for the following reasons. The defendants’ motion for summary
2
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We review a grant of summary judgment de novo, viewing all evidence and
drawing all reasonable inferences in favor of the non-moving party. Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005).
“The Rehabilitation Act (the Act) prohibits federal agencies from
discriminating in employment against otherwise qualified individuals with a
disability.” Sutton v. Lader, 185 F.3d 1203, 1207 (11th Cir. 1999).2 “To establish
a prima facie case of discrimination under the Act, a plaintiff must show that (1)
judgment characterized Dickerson’s complaint as alleging only a Rehabilitation Act discrimination
claim, and that motion clearly sought resolution of this case in its entirety; it was not a motion for
partial summary judgment. In Dickerson’s counseled response to the defendants’ motion for
summary judgment, she did not disagree with the defendants’ characterization of her complaint and
thereby alert the district court of any additional cause of action separate and apart from her claim that
the VA violated the Rehabilitation Act by discriminating against her based on her disability. The
summary judgment briefing makes clear that the parties—along with the district judge—shared a
common understanding that Dickerson’s entire case would rise and fall with her ability to
demonstrate that she was a “qualified individual” with a disability. Under these particular
circumstances, Dickerson failed to preserve any claim other than the discrimination claim discussed
herein. See Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995) (“By failing to make
this argument in his opposition to summary judgment, [the plaintiff] has failed to preserve this claim.
. . . Even an issue raised in the complaint but ignored at summary judgment may be deemed
waived.”); Kaplan v. Rose, 49 F.3d 1363, 1369 (9th Cir. 1994); Hargrave v. Fibreboard Corp., 710
F.2d 1154, 1163-64 (5th Cir. 1983).
Finally, Dickerson argues something akin to ineffective assistance of counsel with respect
to the services provided by her court-appointed counsel in the court below. Any such claim would
fail as a matter of law. As we have stated previously, “[a]bsent an erroneous ruling by the district
court in its dealings with the parties, the attorneys’ conduct is not a ground for reversing the
judgment in the original action.” Mekedci v. Merrell Nat’l Labs., 711 F.2d 1510, 1522-23 (11th Cir.
1983).
2
Discrimination claims under the Rehabilitation Act are governed by the same
standards used in cases brought under the Americans with Disabilities Act (“ADA”). Cash v. Smith,
231 F.3d 1301, 1305 (11th Cir. 2000) (citing 29 U.S.C. § 794(d)). Thus, cases decided under the
ADA and the Rehabilitation Act may be used interchangeably. Id. at 1305 n.2.
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[s]he has a disability; (2) [s]he is otherwise qualified for the position; and (3) [s]he
was subjected to unlawful discrimination as the result of h[er] disability.” Id.This appeal hinges on the second element.
A “qualified individual” is an individual who, “with or without reasonable
accommodation, can perform the essential functions of the employment position
that such individual holds or desires.” 42 U.S.C. § 12111(8). Thus, if an
individual is unable to perform an essential function of her job, even with an
accommodation, she is not a “qualified individual.” See Davis v. Fla. Power &
Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000). “Determining whether an
individual is ‘qualified’ for a job is a two-step process.” Reed v. Heil Co., 206
F.3d 1055, 1062 (11th Cir. 2000). First, the individual must satisfy the
prerequisites for the position. Id. Second, the individual must demonstrate that
she can perform “the essential functions of the job, either with or without
reasonable accommodations.” Id. The first step is not at issue here.
Reasonable accommodations may include: “(A) making existing facilities
used by employees readily accessible to and usable by individuals with
disabilities; and (B) job restructuring, part-time or modified work schedules,
reassignment to a vacant position, acquisition or modification of equipment or
devices, appropriate adjustment or modifications of examinations, training
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materials or policies, . . . and other similar accommodations for individuals with
disabilities.” 42 U.S.C. § 12111(9).
“An accommodation can qualify as ‘reasonable’ . . . only if it enables 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). “The term essential
functions means the fundamental job duties of the employment position the
individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1). “Whether
a function is essential is evaluated on a case-by-case basis by examining a number
of factors.” Davis, 205 F.3d at 1305. Consideration is given to the employer’s
judgment as to what functions of a job are essential. 42 U.S.C. § 12111(8); 29
C.F.R. § 1630.2(n)(3)(i). In certain situations, regular daily attendance may be an
essential function of a position. See Jackson v. Veterans Admin., 22 F.3d 277,
279 (11th Cir. 1994). “Performing the essential functions of a job means, among
other things, being able to perform those functions without risk of serious physical
harm to oneself or others.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1126 (11th
Cir. 1993); see also LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 835-36
(11th Cir. 1998).
The plaintiff has the burden to identify an accommodation and establish that
the accommodation is reasonable. See Willis v. Conopco, Inc., 108 F.3d 282, 283
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(11th Cir. 1997). “[A]n employer is not required to accommodate an employee in
any manner in which that employee desires.” Terrell v. USAir, 132 F.3d 621, 626
(11th Cir. 1998) (quotations omitted). The employee “does not satisfy her initial
burden by simply naming a preferred accommodation” because “she must show
that the accommodation is ‘reasonable’ given her situation.” Id. The
Rehabilitation Act does not oblige employers to employ people who are not
capable of performing the duties of the employment to which they aspire or to
create alternative employment opportunities for a disabled person. See Sutton v.
Lader, 185 F.3d 1203, 1211 (11th Cir. 1999). The employer is not required to
reassign the disabled employee if there is no vacant position, see Lucas, 257 F.3d
at 1256-57, or to reallocate job duties to change the essential functions of a job,
see Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000).
As noted, the pertinent issue on appeal is whether Dickerson was a qualified
individual with a disability, in that she could perform the essential functions of her
job as a nurse with reasonable accommodation.3 The record shows that, due to her
3
Dickerson complains that the VA failed to engage in an interactive process with her
to identify potential accommodations. However, we have stated that “where a plaintiff cannot
demonstrate ‘reasonable accommodation,’ the employer’s lack of investigation into reasonable
accommodation is unimportant.” Willis, 108 F.3d at 285. Assuming arguendo that the VA failed
to engage Dickerson in an interactive process, Dickerson’s discrimination claim nevertheless fails
because—as will be discussed—she has not demonstrated that a reasonable accommodation could
have been made. See Lucas, 257 F.3d at 1256 n.2.
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occupational asthma and multiple chemical sensitivity, Dickerson was allergic to
an ever-widening range of chemicals and substances, including—but not limited
to—floor wax. For example, there is evidence that Dickerson had suffered allergic
reactions or experienced sensitivity to floor sealant, floor stripper, cleaning
products, chemical products, chemical solvents, ammonia, rubbing alcohol, sprays,
molds, dust, perfumes, scents and odors, fumes of any kind, latex, insect bites,
changes in temperature or weather, volatile compounds, asbestos, and industrial
equipment. According to one of Dickerson’s doctors, any of the chemicals
commonly used by the VA were more likely than not to trigger an allergic
reaction, and Dickerson “must NOT be within less than one foot of” certain
chemicals or solvents. It is undisputed that during an allergic reaction or when
treating such a reaction with medication, Dickerson would be unable to
concentrate, react to an emergency, make clinical judgments, or deliver patient
care. Moreover, Dickerson’s allergic reactions frequently forced her to leave the
workplace and not return for extended periods of time.
Accordingly, Dickerson’s condition rendered her unable to perform the
essential functions of her job as a staff nurse, which included patient care,
medication administration, and working throughout the VA’s facilities. Because
the VA could not guarantee that she would not come near the hundreds of
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chemicals it commonly used at its facility, Dickerson could not perform the
essential functions of her job, with or without reasonable accommodation.4
Furthermore, the Rehabilitation Act did not require the VA to reassign Dickerson
to a position where there were no vacancies, create an entirely new position for
her, or reallocate the essential functions of her nursing position. Because
Dickerson has not provided probative evidence that she could perform her job’s
essential functions with or without reasonable accommodation, she has not shown
that she is a “qualified individual” for purposes of the Act. The district court
properly granted summary judgment on this basis.
AFFIRMED.5
4
Early on, Dickerson identified positions in which she claimed she could have avoided
waxed floors. The VA maintains that no nursing services position existed that would have enabled
Dickerson to avoid floor wax. Regardless, Dickerson has never suggested a reasonable
accommodation that would have allowed her to avoid coming into contact with the other chemicals,
substances, and odors that were likely to trigger an allergic reaction.
5
Dickerson’s request for oral argument is DENIED.
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