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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15838
Non-Argument Calendar
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D.C. Docket No. 1:10-cv-22873-PCH
SAONARAH JEUDY,
Plaintiff-Appellant,
versus
ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 26, 2012)
Before TJOFLAT, BARKETT and EDMONDSON, Circuit Judges.
PER CURIAM:
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Saonarah Jeudy, a black female who was pregnant during the time period in
question, appeals the district court’s grant of summary judgment to her former
employer, the U.S. Attorney General for the Department of Justice, as to her
complaint alleging disability discrimination, pursuant to the Rehabilitation Act, 29
U.S.C. ' 791, and discrimination based on race, gender, and pregnancy, and
retaliation, pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. ''
2000e-2(a), 3(a)and 16. Jeudy argues that her supervisors at the federal detention
center where she worked as a correctional officer engaged in prohibited behavior
when they refused to accommodate her following complications with her pregnancy
and when the warden of her institution terminated her. Jeudy alleges that these
actions were based on unlawful discrimination, and were in retaliation for reporting
sexual harassment by one of her supervisors. The district court did not err in
granting summary judgment for the reasons discussed below. 1
I. Rehabilitation Act Discrimination
First, Jeudy argues that the district court erroneously granted summary
judgment on her claim that the defendant unlawfully terminated her based on her
pregnancy-related disability, or alternatively based on the defendant’s regard of her
1
We review de novo a district court’s grant of summary judgment. Weeks v. Harden Mfg.
Corp.,
291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is proper if the evidence shows
“that there is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a).
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as disabled, in violation of the Rehabilitation Act. See Mullins v. Crowell,
228 F.3d
1305, 1313 (11th Cir. 2000) (explaining that federal agencies are prohibited from
discriminating in employment against otherwise qualified individuals with a
disability); see also
29 U.S.C. §§ 791, 794(a). Discrimination claims brought under
the Rehabilitation Act are governed by the same standards as those brought under
the Americans with Disabilities Act (“ADA”), 42 U.S.C. ' 12112.
29 U.S.C. §
794(d); Cash v. Smith,
231 F.3d 1301, 1305 (11th Cir. 2000). A plaintiff makes a
prima facie case of disability discrimination by showing that she (1) is disabled, (2)
is a qualified individual, and (3) was subjected to unlawful discrimination because of
her disability. Cleveland v. Home Shopping Network, Inc.,
369 F.3d 1189, 1193
(11th Cir. 2004).
Under the first prong, a person is “disabled” only if she suffers from a
physical or mental impairment that substantially limits one or more major life
activities.
29 U.S.C. § 705(9) (B) (incorporating the ADA’s definition); Chanda v.
Engelhard/ICC,
234 F.3d 1219, 1221 (11th Cir. 2000). “Major life activities” are
“functions such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.”
29 C.F.R. § 1630.2(i);
Chanda,
234 F.3d at 1222. While pregnancy is generally not considered a
disability, a pregnancy-related impairment may be considered a disability, if it
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substantially limits a major life activity. 29 C.F.R. pt. 1630, App. § 1630.2(h).
Here, we cannot say that the district court erred in concluding that Jeudy
failed to raise a genuine issue of fact that her pregnancy qualifies as a disability for
purposes of the Rehabilitation Act. Jeudy argues that during her pregnancy, she
suffered from severe pelvic pain due to fibroids on her uterus and that as a result this
limited her ability to walk, stand and climb stairs. The district court, however,
concluded that the evidence failed to show that whatever impairment Jeudy suffered
from, it did not “substantially limit” these activities. An impairment “substantially
limits” such an activity only if it renders the individual unable to perform “a major
life activity that the average person in the general population can perform” or
significantly restricted 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.” Chanda,
234 F.3d at 1222.
Jeudy’s deposition testimony was that her pain was “off and on,” was not an
ongoing thing and that she was getting better with the fibroids shortly before the end
of her employment. Also, the note from her doctor merely indicated that Jeudy
should not repetitively climb stairs, but did not indicate how, if at all, her ability to
walk or stand was impacted by her pregnancy. Moreover, Jeudy did not present any
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evidence how her pregnancy-related pain affected her ability to walk, stand or
otherwise perform her major life activities. Accordingly, because we see no error
in the district court’s conclusion that Jeudy failed to establish that her
pregnancy-related complications qualified as a disability, she cannot make out a
prima facie case of disability-related discrimination under the Rehabilitation Act.
II. Race and Sex Discrimination under Title VII
Next, Jeudy argues that the district court erred in granting summary judgment
on her claims of race and sex discrimination in violation of Title VII. In particular,
she argues that the defendants discriminated against her based on her pregnancy
when they failed to accommodate her and when they terminated her. Title VII
requires that “[a]ll personnel actions affecting employees or applicants for
employment . . . in executive agencies . . . be made free from any discrimination
based on [race, color, or sex] . . . .” 42 U.S.C. § 2000e-16(a). “The Pregnancy
Discrimination Act amended Title VII to provide that discrimination on the basis of
sex includes discrimination ‘on the basis of pregnancy, childbirth or related medical
conditions.’” Holland v. Gee, C F.3d C,
2012 WL 1292342 *2 (11th Cir. 2012)
(citing 42 U.S.C. § 2000e(k)).
Under Title VII, a plaintiff who is relying on circumstantial evidence, as
Jeudy does here, must make a requisite showing of a prima facie case of
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discrimination. Id. To set out a prima facie case for disparate treatment, the
plaintiff must establish that: (1) she is a member of a protected class; (2) she was
qualified to do the job; (3) she suffered an adverse employment action; and
(4) similarly situated employees, not of the plaintiff’s protected group, were treated
differently. Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004).
Once a plaintiff makes out a prima facie case, “the burden of production shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its actions.”
Id.
At that point, the burden shifts back to the plaintiff to show that the reasons provided
by the employer are pretext for unlawful discrimination. Holland,
2012 WL
1292342 at 3.
Here, Jeudy argues that she suffered two adverse employment actions, namely
(1) the denial of her request for accommodations for her pregnancy by allowing her
to work a different shift and to remain seated on the job and (2) her termination.
First, we find no error in the district court’s conclusion that the denial of Jeudy’s
request for an accommodation could not be considered a materially adverse
employment action, which required Jeudy to establish “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, Fla.,
245 F.3d
1232, 1240 (11th Cir. 2001). The denial of Jeudy’s request for a shift change did
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not change any terms of her employment, and indeed, the defendant did not preclude
Jeudy from changing her shift if she could find another employee who was willing to
switch shifts with her, which she could not. Instead, no reasonable person would
view the defendant’s unwillingness to change Jeudy’s shift as a serious and material
change in her employment where here Jeudy has not shown that her
pregnancy-related complications constitute a disability. See Swain v. Hillsborough
County School Bd.,
146 F.3d 855, 858 (11th Cir. 1998) (“Employers have no duty to
accommodate an employee if the employee is not disabled under the ADA.”).
The district court, however, found that Jeudy=s termination was materially
adverse. Nonetheless, even if we assume that Jeudy established all other elements
of her prima facie case of unlawful race and sex discrimination based on her
termination, we cannot say that the district court erred in granting the defendant
summary judgment. The defendant asserted that it terminated Jeudy because of
two separate work infractions that she committed within a few days of each other
during her probationary period. In the first incident, Jeudy brought her cell phone
to a staff training at the detention center in violation of an employee policy. In the
second incident, Jeudy failed to properly secure her housing unit during a count by
leaving one cell door ajar and unlocked. Both asserted bases for Jeudy’s
termination are legitimate, nondiscriminatory reasons which Jeudy has failed to
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meet head on and rebut, but instead merely “quarrel[s] with the wisdom of th[ose]
reasons.” Chapman v. AI Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000).
Finally, Jeudy argues that the district court erred in granting summary
judgment on her claim that she was retaliated against for making a complaint of
sexual harassment. In order to establish a prima facie case for retaliation, a claimant
must establish that: (1) he engaged in a statutorily protected activity; (2) he suffered
a materially adverse action; and (3) there was a causal link between the protected
activity and the adverse action. Goldsmith v. Bagby Elevator Co.,
513 F.3d 1261,
1277 (11th Cir. 2008). If a plaintiff makes out a prima facie case of retaliation, the
burden shifts to the defendant to produce legitimate, non-retaliatory reasons for the
adverse action.
Id. The plaintiff has the ultimate burden to prove retaliation by the
preponderance of the evidence and that the employer=s reason was pretextual.
Id.
Even assuming that Jeudy established a prima facie case of retaliation, as
discussed above, she failed to show that the legitimate reasons given for her
termination were pretext for unlawful retaliation.
AFFIRMED.
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