USCA11 Case: 20-10799 Date Filed: 06/03/2022 Page: 1 of 20
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10799
____________________
PAMELA WILSON,
Plaintiff-Appellant,
versus
SECRETARY OF VETERANS AFFAIRS
DEPARTMENT OF VETERANS
AFFAIRS,
Atlanta Regional Benefits Office,
Defendants-Appellees.
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2 Opinion of the Court 20-10799
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-02110-JPB
____________________
Before WILSON, LAGOA, Circuit Judges, and MARTINEZ, ∗ District
Judge.
PER CURIAM:
Plaintiff-Appellant Pamela Wilson, a veteran suffering from
certain health limitations, appeals the district court’s order of sum-
mary judgment against her claims of discrimination and retaliation
under the Rehabilitation Act of 1973,
29 U.S.C. § 794 (the Rehabil-
itation Act), and in favor of her former employer, the Department
of Veterans Affairs, and its Secretary, Dr. David J. Shulkin (collec-
tively, the VA).
Wilson presents two issues on appeal. First, Wilson argues
that the district court erred in finding that she thwarted the inter-
active process and therefore failed to demonstrate that the VA dis-
criminated against her. Second, Wilson argues that the district
court erred in finding that she failed to set out a prima facie case of
retaliation because her unauthorized parking was not statutorily
∗Honorable Jose E. Martinez, United States District Judge for the Southern
District of Florida, sitting by designation.
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20-10799 Opinion of the Court 3
protected activity. After careful review, and with the benefit of oral
argument, we conclude that there are genuine factual disputes con-
cerning whether the VA engaged in the interactive process in good
faith and thus failed to accommodate Wilson’s requests for accom-
modations. However, we agree with the district court that Wilson
failed to set out a prima facie claim of retaliation. Accordingly, we
reverse in part and affirm in part.
I.
This case concerns Wilson’s claim that the VA failed to ac-
commodate her by ignoring her repeated requests for a parking ac-
commodation due to her disability. Wilson, a veteran, suffers from
degenerative disc disease and partial paralysis in both feet. In Feb-
ruary 2009, Wilson started as a probationary Veteran Claims Ex-
aminer (VCE) for the Atlanta VA Regional Office. At the time, the
Atlanta VA Regional Office only permitted permanent employees
to use the on-site parking deck. Probationary VCEs could park at
an off-site parking area roughly one mile from the office, from
which they could either take a shuttle or walk to work. The VA
shuttle ran for one hour in the morning and one hour in the even-
ing. It ran sporadically at best and could only hold up to 25 indi-
viduals at a time—even then, there were only 15 seats. And be-
cause the shuttle lacked handlebars, standing passengers were
forced to either be “pressed against an individual” or “use [their]
body as a stance” to avoid falling over. Roughly 80 probationary
VCEs commuted per day. Because of the shuttle’s shortcomings,
Wilson effectively faced the option of either walking to work—
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4 Opinion of the Court 20-10799
which “put enormous pressure on her nerves” and caused her legs
and feet to swell—or parking in unassigned handicapped spaces in
the on-site parking deck. 1 Wilson made the latter choice, leading
to numerous parking tickets and counseling memos about her un-
authorized parking.
As an employee with a disability, Wilson was told to bring
any requests she may have for workplace accommodations to Ce-
lesta Chapin, her Vocational Rehabilitation Counselor with the
VA’s Rehabilitation and Employment Division. Between March
and July 2009, Wilson communicated her needs for a parking ac-
commodation on six occasions to VA personnel—in all instances,
Wilson stated that the VA refused to accommodate her requests in
violation of the Rehabilitation Act.
Wilson identified six distinct failures by the VA to accom-
modate or respond to her requests for an accommodation, occur-
ring on the following dates in 2009: (1) March 31, (2) April 13, (3)
April 17, 2 (4) May 12, (5) July 7, and (6) July 8 and thereafter. The
record evidence shows the following regarding these events.
Wilson described the first instance in a sworn statement. On
March 31, 2009, Wilson emailed Chapin to inform her that the
parking situation at the VA aggravated her disability and that she
1 Wilson confirmed at oral argument that she had a Georgia handicapped park-
ing placard on her vehicle at the time.
2 The April 17 allegation appears to be a mistaken reference to an email, at-
tached as an exhibit that was actually dated April 21, 2009.
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20-10799 Opinion of the Court 5
needed a parking accommodation. Chapin informed Wilson that
she would make a workplace accommodation request to Human
Resources (HR) on her behalf. Wilson never received follow-up
from this meeting.
With regard to the second occasion, occurring on April 13,
2009, Wilson stated that she met with Eboni White, her direct su-
pervisor, after receiving a counseling memo for unauthorized park-
ing in the on-site parking deck. During the meeting, Wilson ex-
plained that her disability forced her to park on-site and that she
was working with Chapin to obtain permission to park in the on-
site parking deck, for which she needed White’s assistance. White
then said that she would communicate with Chapin. However,
White did not relay Wilson’s request to Chapin or anyone in HR,
nor did White follow up with Wilson regarding her request.
Wilson’s affidavit states that the third occasion occurred on
April 21, 2009. Wilson stated that she emailed Praileau Young, an
HR assistant, to ask where she could find the paperwork necessary
to submit a parking accommodation request. Young responded
that she had forwarded Wilson’s email to the “appropriate person,”
but Wilson never received the requested information. On the
same day, Wilson emailed Chapin again to confirm the status of
her request. Chapin responded that she thought Wilson dropped
the matter, but then requested from Wilson the name of her super-
visor so that Chapin could request an assessment. Wilson re-
sponded and asked Chapin to submit the request on her behalf.
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6 Opinion of the Court 20-10799
In the same affidavit, concerning the fourth instance, Wilson
stated that she met again with Chapin on May 12, 2009. At this
meeting, Chapin reminded her to discuss her request with her su-
pervisor. Wilson testified that she believed management was ig-
noring her since she had already spoken with White to no avail.
On July 1, 2009, union representative Rebecca Manning
gave her own parking badge to Wilson with permission to use it to
park at the on-site parking deck. Because the badge did not work,
Wilson asked an HR Liaison, Vivian DeLoach, for help. On July 7,
2009, DeLoach informed Wilson that she was not authorized to
park there. Making this the fifth occasion, Wilson testified that she
believed then that her request had been denied after all.
Regarding the last occasion, Wilson testified that she
emailed DeLoach on July 8, 2009, to request “the appropriate pa-
perwork to file for reasonable parking accommodations due to my
service-connected disability,” which she identified as “degenerative
disc disease, with [herniated] discs and partial paralysis in both of
[her] feet.” Wilson stated that she would be willing to provide
medical documentation and facilitate contact with her doctor if
necessary. On July 16, 2009, Unit Chief John Clayton Smith—who
replaced White as Wilson’s direct supervisor—followed-up to ver-
bally inform Wilson that he consulted with HR and that they “d[id]
not see a connection [between parking privileges] and the essential
function of you performing your job.” Wilson interpreted this as
the sixth instance of the VA’s failure to accommodate. Wilson then
emailed DeLoach for written confirmation of Smith’s “denial” of
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20-10799 Opinion of the Court 7
her request for accommodations. Smith followed up with Wilson
via email and reiterated that neither he nor HR saw the need for an
accommodation but did not deny the request outright. DeLoach
responded that although she was not the approving official for ac-
commodation requests, she would assist Smith in helping Wilson
understand how to properly submit a request.
On July 22, 2009, Wilson filed a complaint with the Equal
Employment Opportunity Commission (EEOC) alleging discrimi-
nation by the VA. Within hours of filing the complaint, Wilson
received a letter from Smith titled “Certification of Need for a Rea-
sonable Accommodation.” Smith therein acknowledged Wilson’s
accommodation request and requested, inter alia, medical docu-
mentation to evaluate her request. The letter also reminded Wil-
son yet again that “parking is not a condition of employment, nor
related to the essential functions of your position.” This was the
same language that Smith used in previously denying her request.
Wilson testified that she never provided the documentation be-
cause she understood the letter to be a preemptive denial. Wilson
did not receive any follow-up.
Wilson testified that she soon thereafter suffered harass-
ment. This harassment consisted, in part, of what she considered
a pretextual disciplinary reprimand for leaving overtime work 45
minutes early because she felt ill. Wilson also applied for a Rating
Veteran’s Service Representative position (RVSR) around this time
but was not selected despite her allegation that she was more qual-
ified than the selected applicant. On September 3, 2009, Wilson
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8 Opinion of the Court 20-10799
withdrew her EEOC complaint on advisement from her EEOC
counselor. Her EEOC counselor discussed the matter with De-
Loach, who responded, “if [parking] was going to be a problem
[Wilson] might want to reevaluate her decision to work there.”
Wilson stated that she continued to park in on-site handicapped
spaces and amassed several parking tickets and letters of counseling
because she believed that the VA unlawfully denied her accommo-
dations request. Wilson also received a negative performance ap-
praisal during this time, to which she filed a union grievance.
Shortly thereafter, Jeannie Daniel, the VA Regional Assistant Edu-
cation Officer, recommended to the VA regional Director Alfred
Bocchicchio that Wilson be terminated for poor performance. The
VA terminated Wilson on December 18, 2009, with a letter citing
both her parking violations and poor performance as justification.
Wilson applied again for the RVSR position in 2011, and was
again not selected, despite her allegation that here, too, she was the
most qualified candidate. Wilson stated that she believed she was
not selected on either occasion because the decisionmakers knew
of her disability and her EEOC complaint.
In 2017, Wilson sued the VA for violating the Rehabilitation
Act by (1) unlawfully discriminating against her, a disabled individ-
ual, as to the terms and conditions of her employment, and (2) re-
taliating after she made protected complaints about such discrimi-
nation. The district court granted summary judgment in favor of
the VA. On Wilson’s first claim, the district court found that Wil-
son failed to show a genuine issue of material fact concerning
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20-10799 Opinion of the Court 9
whether the VA had denied her request for reasonable accommo-
dations. The district court also found that Wilson thwarted the in-
teractive process that the VA eventually entered with her by refus-
ing to provide the medical documentation that the VA requested
to assess her request. On Wilson’s second claim, the district court
found that Wilson failed to establish a prima facie retaliation case
because her unauthorized parking was not protected activity. Fur-
ther, the district court found that Wilson could not show that her
termination was pretextual. Wilson timely appealed.
II.
We review an entry of summary judgment de novo, viewing
the evidence in the light most favorable to the non-moving party.
Collar v. Abalux, Inc.,
895 F.3d 1278, 1281 (11th Cir. 2018). “The
court shall grant summary judgment if the 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.” Fed. R. Civ. P. 56(a).
No genuine issue of material fact exists unless a reasonable jury
could return a verdict in favor of the non-moving party. Morton
v. Kirkwood,
707 F.3d 1276, 1284 (11th Cir. 2013).
III.
The first issue that Wilson raises on appeal is whether the
district court erred in awarding summary judgment to the VA on
her discrimination claim. Because we find that Wilson raises a gen-
uine issue of material fact concerning whether the VA failed to pro-
vide a reasonable accommodation, we reverse.
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10 Opinion of the Court 20-10799
In making its determination on this claim, the district court
found that Wilson’s accommodations requests prior to July 8, 2009,
were not specific enough to trigger the VA’s obligation to provide
an accommodation or to engage in the interactive process. It fur-
ther held that because Wilson failed to provide the medical docu-
mentation that the VA requested, she thereby thwarted the inter-
active process and was thus barred from recovery on her failure-to-
accommodate claim. Wilson argues that the district court erred on
both points. We agree.
The Rehabilitation Act prohibits federal agencies from dis-
criminating against employees based on their disability. Sutton v.
Lader,
185 F.3d 1203, 1207 (11th Cir. 1999). “Discrimination claims
under the ADA and the Rehabilitation Act are governed by the
same standards, and the two claims are generally discussed to-
gether.” J.S., III ex rel. J.S. Jr. v. Houston Cnty. Bd. of Educ.,
877
F.3d 979, 985 (11th Cir. 2017) (per curiam). As such, “[c]ases de-
cided under the Rehabilitation Act are precedent for cases under
the ADA, and vice-versa.” Cash v. Smith,
231 F.3d 1301, 1305 n.2
(11th Cir. 2000).
Under the Rehabilitation Act, a disabled, otherwise quali-
fied, individual may establish a prima facie case of discrimination
by showing that the employer failed to provide a reasonable ac-
commodation, unless doing so would impose an undue hardship
on the employer. Boyle v. City of Pell City,
866 F.3d 1280, 1289
(11th Cir. 2017). To trigger the employer’s duty to provide a rea-
sonable accommodation, the plaintiff must make a specific demand
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20-10799 Opinion of the Court 11
for such an accommodation. Gaston v. Bellingrath Gardens &
Home, Inc.,
167 F.3d 1361, 1363 (11th Cir. 1999) (per curiam). The
plaintiff also must meet the burden of “establishing that the partic-
ular accommodation is reasonable.” Willis v. Conopco, Inc.,
108
F.3d 282, 284–85 (11th Cir. 1997) (per curiam).
After the employer is placed on notice of the employee’s dis-
ability and request for an accommodation, it is obligated to “make
a reasonable effort to determine the appropriate accommodation.”
Gaston,
167 F.3d at 1364 (internal quotation mark omitted). In “de-
termin[ing] the appropriate reasonable accommodation[,] it may
be necessary for the covered entity to initiate an informal, interac-
tive process with the individual with a disability in need of the ac-
commodation.”
29 C.F.R. § 1630.2(o)(3) (emphasis added). Only
when the employer fails to provide the accommodation after it was
demanded can the plaintiff sustain a discrimination claim under the
Rehabilitation Act. See Gaston,
167 F.3d at 1363–64.
On appeal, Wilson argues that the VA failed to accommo-
date her disability because it spent nearly four months “ignoring or
outright denying” her requests for a reasonable accommodation
until it finally initiated the interactive process on July 22, 2009.
Therefore, she argues that the district court erred in finding that
she thwarted the interactive process by failing to provide the re-
quested medical documentation.
The VA responds that Wilson neither made a specific re-
quest for a reasonable accommodation before July 8, 2009, nor en-
gaged with the interactive process in good faith. Further, the only
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12 Opinion of the Court 20-10799
proper request for an accommodation, per the VA’s employee
handbook, was Wilson’s email on July 8, 2009. The VA contends
that Wilson caused the breakdown of the interactive process by
failing to respond to the VA’s request for medical documentation
to better evaluate Wilson’s accommodation request.
The VA does not dispute that Wilson is a qualified individual
with a disability. We thus focus our analysis here on whether Wil-
son has demonstrated that there are triable issues of fact that she
(1) made a specific demand for a reasonable accommodation, and
(2) did not cause the breakdown of the interactive process. We find
that she does. We now discuss each point in turn.
A.
As discussed above, to trigger an employer’s obligation to
provide a reasonable accommodation, the employee must make a
specific demand for one, Gaston,
167 F.3d at 1363, and demonstrate
that the requested accommodation is reasonable, Willis,
108 F.3d
at 284–85. Viewing the evidence in the light most favorable to Wil-
son, she creates a triable issue over whether she made a reasonable
and specific demand for an accommodation.
Starting on March 31, 2009, Wilson made repeated requests
for one specific accommodation: the ability to park in the VA park-
ing deck. Wilson repeatedly explained her reasoning and her re-
quest to a growing cast of VA personnel who either discouraged,
ignored, or provided inadequate follow-up to her requests.
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The VA argues that none of Wilson’s five alleged requests
before her July 8, 2009 email to DeLoach adequately followed the
VA’s procedures, identified Wilson as the requestor, or linked Wil-
son’s request to her disability. But according to the VA’s reasona-
ble accommodation policy, a request for a reasonable accommoda-
tion may be made orally or in writing to an employee’s immediate
supervisor or HR. Further, it states: “[a] health care professional,
or other representative may request an accommodation on behalf
of a VA employee . . . [which] may be submitted to the appropriate
Human Resources Officer designated to receive such requests.”
Here, we exhibit the error of the VA’s position with respect to even
the first two alleged instances of discrimination.
The first instance of discrimination occurred on March 31,
2009, when Wilson made her initial request to Chapin, to whom
she had been advised to bring any need for workplace accommo-
dation. Wilson stated in her declaration that she “informed Ms.
Chapin that the parking condition at the VA was further aggravat-
ing [her] disability and [she] needed parking accommodation.” In
response, “Chapin told [her] that she would make a request to HR,
which would then assess [her] worksite.” Chapin forwarded this
request to her supervisor, Amy Thompson. Later that day,
Thompson emailed the regional Assistant Director of the VA that
two “disabled veterans” were “being considered for assessment of
accommodation needs,” further asking “what are our options on
parking for these or similar individuals?” This email was forwarded
to regional VA Director Bocchicchio.
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14 Opinion of the Court 20-10799
The second instance occurred on April 13, 2009, when Wil-
son met with White—then her direct supervisor—after White is-
sued Wilson a counseling memorandum for unauthorized parking.
Wilson explained her mobility impairments and asked for White’s
assistance with the request that she made through Chapin. White
later testified that this meeting made her aware of Wilson’s disabil-
ity and accommodation request. White promised to communicate
with Chapin, but Wilson never received a response.
Whether Wilson followed the VA’s policy creates a triable
issue of fact because a reasonable juror could find that even Wil-
son’s first two communications with the VA were requests for an
accommodation. To illustrate this, we quote the relevant portions
of the VA’s own reasonable accommodation policy in explaining
why. On March 31, 2009, Wilson, “a VA employee,” made a re-
quest to a representative, Chapin, who “may” and did “request an
accommodation” on her behalf, which Chapin forwarded as repre-
sentative to “her [own] immediate supervisor,” Amy Thompson.
If this was not enough, Thompson testified that she then forwarded
it to the regional Director and the Assistant Director of the VA,
who as supervisors (even if not immediate) were either procedur-
ally or practically responsible for forwarding the request to HR.
And on April 13, 2009, Wilson made “a request for a reasonable
accommodation . . . orally . . . to [her] immediate supervisor,” Eb-
oni White. Thus, the VA’s position that there are no triable issues
of fact as to whether Wilson procedurally made an appropriate re-
quest is unsound.
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20-10799 Opinion of the Court 15
Further, under the Rehabilitation Act, Wilson needed only
request the accommodation and demonstrate that it is reasonable.
Willis,
108 F.3d at 284–85. It was therefore sufficient that Wilson
requested to park on-site and justified her request by informing the
VA about her mobility limitations and her belief that the accom-
modation would resolve the issue. We thus find that a jury could
reasonably determine that Wilson made a specific request for ac-
commodations, sufficient to notify the VA, before July 8, 2009.
B.
We now consider whether the district court properly
granted summary judgment on Wilson’s discrimination claim to
the VA on the basis that she caused a breakdown in the interactive
process by failing to provide the requested documentation.
After the VA was notified of Wilson’s disability and her re-
quests, it was obligated to “make a reasonable effort to determine
the appropriate accommodation.” See Gaston,
167 F.3d at 1364
(internal quotation marks omitted). Wilson alleges that the VA did
not fulfill that obligation. And both parties acknowledge that the
interactive process was ultimately unsuccessful. Even so, we have
held that “liability for failure to provide reasonable accommoda-
tions ensues only where the employer bears responsibility for the
breakdown.” Stewart v. Happy Herman’s Cheshire Bridge, Inc.,
117 F.3d 1278, 1287 (11th Cir. 1997). But Wilson alleges that the
process broke down because of the VA’s actions—not her own.
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16 Opinion of the Court 20-10799
Taking the facts in the light most favorable to Wilson, there
is at least a genuine issue of material fact as to whether the VA,
rather than Wilson, was responsible for the breakdown of the in-
teractive process. It took the VA four months to even attempt to
initiate the interactive process, despite being repeatedly placed on
notice of Wilson’s disability and her request. A jury could thus find
that the VA’s four-month-long inaction in addressing Wilson’s re-
quest constitutes a failure to accommodate in violation of its obli-
gations under the Rehabilitation Act, regardless of Wilson’s subse-
quent failure to provide the documentation. Even still, a jury could
reasonably construe Smith’s July 16, 2009 response to Wilson’s ac-
commodations requests as a denial.
Having found that Wilson properly sets out a prima facie
case of disability discrimination under the Rehabilitation Act, we
reverse summary judgment on Wilson’s discrimination claim.
IV.
The second issue that Wilson raises on appeal is whether the
district court erred in finding that she failed to establish a prima
facie showing of retaliation by the VA. Here, Wilson argues that
her efforts to accommodate her own disability by parking on-site
despite the VA’s discrimination constituted a protected activity
that caused her termination and later non-selection. We affirm the
grant of summary judgment to the VA on this issue.
The Rehabilitation Act incorporates the anti-retaliation pro-
vision of the ADA. See
29 U.S.C. § 794(a), (d);
42 U.S.C. § 12203(a).
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The ADA provides that “[n]o person shall discriminate against any
individual because such individual has opposed any act or practice
made unlawful by this [Act].”
42 U.S.C. § 12203(a). ADA retalia-
tion claims are analyzed under the same framework as Title VII.
See Stewart,
117 F.3d at 1287.
Because we have held that “[c]ases decided under the Reha-
bilitation Act are precedent for cases under the ADA, and vice-
versa,” we thus analyze retaliation claims under the Rehabilitation
Act under the same framework. Cash, 231 F.3d at 1305 n.2. There-
fore, to establish a prima facie retaliation claim, Wilson must show:
(1) she engaged in statutorily protected activity; (2) she suffered an
adverse action; and (3) there was a causal relationship between the
action and her protected activity. Garrett v. Univ. of Ala. at Bir-
mingham Bd. of Trs.,
507 F.3d 1306, 1316 (11th Cir. 2007).
Title VII’s opposition clause makes it unlawful to discrimi-
nate against an employee “because he has opposed any practice
made an unlawful employment practice” by the clause. 42 U.S.C.
§ 2000e-3. A plaintiff stating that she engaged in protected activity
under the opposition clause must have staged her “opposition” on
“a good-faith, reasonable belief that the employer was engaged in
unlawful employment practices.” See Weeks v. Harden Mfg.
Corp.,
291 F.3d 1307, 1311 (11th Cir. 2012). 3
3 Although this case applies Title VII, we establish in the preceding paragraph
of this opinion that we analyze retaliation claims brought under the Rehabili-
tation Act using the same framework as the ADA, and therefore, Title VII.
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18 Opinion of the Court 20-10799
Wilson argues that her unauthorized parking was protected
activity because it was done in protest of the VA’s discrimination.
Wilson also notes the Supreme Court’s holding in Crawford v.
Metropolitan Government of Nashville that “oppose” as used in
the opposition clause carries its ordinary meaning of “to resist . . .
[or] to contend against.”
555 U.S. 271, 276 (2006). From this, Wil-
son argues that her unauthorized parking constitutes civil disobe-
dience and is thus protected conduct for ADA purposes. Wilson
also asserts for the first time on appeal that a reasonable factfinder
could find that her persistence in demanding accommodations,
apart from the parking itself, was the cause of her termination.
The VA responds that Wilson failed to show either that she
“engaged in a statutorily protected expression” or a “causal link”
existed between the expression and the adverse employment ac-
tion that she suffered. Frazier-White v. Gee,
818 F.3d 1249, 1258
(11th Cir. 2016). The VA further argues that Wilson’s parking vio-
lations were not protected activity because her alleged belief that
she was acting in civil disobedience was not objectively reasonable.
The VA adds that there were alternative appropriate grounds for
summary judgment, including the fact that her poor performance
was another reason for her termination, and that she was not the
most qualified candidate for the position she applied for thereafter.
First, Wilson’s argument that her parking requests were in-
dependent protected activity is new on appeal. Because this court
will generally not consider an issue raised for the first time on
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20-10799 Opinion of the Court 19
appeal, this argument is waived. Finnegan v. Comm’r of Internal
Revenue,
926 F.3d 1261, 1270–71 (11th Cir. 2019).
Second, even if Wilson’s unauthorized parking was pro-
tected, her retaliation claim fails because she does not demonstrate
that the VA’s other basis for her termination—Wilson’s sub-par
work performance—was pretextual. She thus cannot show “that
the protected activity was causally connected to the adverse em-
ployment action.” Garrett,
507 F.3d at 1316. To show causation,
“a plaintiff merely has to prove that the protected activity . . . and
the adverse action are not completely unrelated.” Higdon v. Jack-
son,
393 F.3d 1211, 1220 (11th Cir. 2004) (quotation marks omitted
and alteration adopted). The employer can then proffer a legiti-
mate, non-retaliatory reason for the adverse action. Pennington v.
City of Huntsville,
261 F.3d 1262, 1266 (11th Cir. 2001). Once the
employer proffers a legitimate, non-retaliatory reason, the plaintiff
bears “[t]he ultimate burden of proving by a preponderance of the
evidence that the reason provided by the employer is a pretext for
prohibited, retaliatory conduct.”
Id. A reason is not pretextual un-
less it is shown both that it was false, and that discrimination was
the real reason. See Brooks v. Cnty. Comm’n of Jefferson Cnty.,
Ala.,
446 F.3d 1160, 1163 (11th Cir. 2006).
In addition to Wilson’s parking violations, the VA also cited
her poor work performance as justification for her termination.
The VA produced evidence that the regional VA Director consid-
ered that Wilson “failed to meet the minimum monthly expected
184 end products,” produced numerous errors in her work that had
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20 Opinion of the Court 20-10799
to be corrected by supervisors, and “requested overtime pay for
hours she did not work and received a counseling memo for doing
so.” To this point, Wilson does not dispute that her record was
unsatisfactory, and she did not produce evidence that would lead a
reasonable jury to find pretext. See Brooks,
446 F.3d at 1163. Nor
does she offer evidence to rebut the VA’s defense that she was not
the most qualified applicant for the positions she applied for. We
thus affirm the grant of summary judgment on Wilson’s retaliation
claim.
V.
Upon review of the district court’s decision, we reverse in
part and affirm in part. We reverse the district court’s grant of sum-
mary judgment on Wilson’s discrimination claim because a reason-
able jury could conclude that Wilson made a reasonable request
for an accommodation and that the VA did not engage in the inter-
active process in good faith. We affirm the district’s grant of sum-
mary judgment on Wilson’s retaliation claim because Wilson can-
not demonstrate that her termination was pretextual.
REVERSED IN PART AND AFFIRMED IN PART.
