Alexis Sicilia v. United Parcel Service, Inc. , 279 F. App'x 936 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-15077 ELEVENTH CIRCUIT
May 30, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 06-22848-CV-ASG
ALEXIS SICILIA,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE, INC.,
a foreign corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Florida
----------------------------------------
(May 30, 2008)
Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Alexis Sicilia appeals the grant of summary judgment in
favor of his former employer United Parcel Service (“UPS”), in Sicilia’s suit
claiming violations of the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.10et seq.1 No reversible error has been shown; we affirm.
Sicilia started working at UPS in 1997, but never informed anyone there
that he had been diagnosed with epilepsy until after he suffered his first seizure at
work in February 2006. Sicilia then was working a night shift as an Export PM
shift clerk.2 The seizure lasted only a few minutes, and he returned to his normal
work activities afterwards. At a later doctor’s visit, Sicilia’s doctor told him he
likely was having breakthrough seizures because of noncompliance with his
medication. Sicilia had a second seizure in April 2006, but again, he did not lose
time from work because of it.
After the second seizure, Sicilia told his doctor that he thought the seizures
were caused by working the night shift. The doctor recommended that Sicilia stop
working the night shift. In June 2006, UPS sent Sicilia to another doctor for a
“fitness for duty” evaluation to determine if he could continue working as an
Export PM shift clerk. This doctor restricted Sicilia to working the day shift and
having no quality control responsibilities.
1
Sicilia originally filed his disability discrimination suit in Florida state court, but UPS removed
it to federal court based on diversity of jurisdiction. See 28 U.S.C. §§ 1332(a), 1446. Sicilia then
filed an amended complaint adding a claim for retaliation under the FCRA.
2
In this position, it was essential that Sicilia be able to work nights and perform quality control
functions.
2
Because of the doctor-imposed restrictions, UPS removed Sicilia from the
Export PM shift clerk position in July 2006. Because no other positions were then
available, UPS suspended his employment but continued to pay his benefits while
he looked for another position. In August 2006, Sicilia requested a job-related
accommodation; but Sicilia’s doctor filled out the required medical forms and
stated that Sicilia could perform all functions of his position. UPS, thus,
concluded that Sicilia did not qualify for an accommodation. Still, UPS informed
Sicilia of available positions. And Sicilia applied for two available day-shift
positions. The positions were filled by equally-qualified employees who had
worked for UPS longer than Sicilia, pursuant to UPS’s length-of-service seniority
system. Sicilia received UPS benefits for the seven months he was not working
but eventually UPS terminated his employment.
In his complaint, Sicilia contended that his epilepsy diagnosis qualified him
as “handicapped” under the FCRA. He alleged that UPS suspended and
terminated him because of his epilepsy and failed to provide him with a reasonable
accommodation. The district court concluded that UPS was entitled to summary
judgment because Sicilia had not demonstrated that he was disabled under the
FCRA and, thus, had failed to make a prima facie case of disability discrimination.
On appeal, Sicilia argues that the district court erred when it failed to
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construe the FCRA with Fla. Stat. § 385.207(1) in making its handicap
determination. Sicilia posits that section 385.207(1) gives a particularized
definition of “handicap” for FCRA purposes. We review a district court’s grant of
summary judgment de novo; and we view the evidence and all reasonable factual
inferences in the light most favorable to the nonmoving party. Maniccia v. Brown,
171 F.3d 1364, 1367 (11th Cir. 1999).
Disability discrimination claims raised under the FCRA are analyzed under
the same framework as the Americans With Disabilities Act (“ADA”). Greenberg
v. Bellsouth Telecomm., Inc., 498 F.3d 1258, 1263-64 (11th Cir. 2007).3 And a
plaintiff qualifies as disabled under the ADA if, in pertinent part, he has a physical
or mental impairment that substantially limits a major life activity. 42 U.S.C.
§ 12102(2)(A).
Sicilia’s epilepsy does not substantially limit him in a major life activity.
By his own admission, his seizures are infrequent, not severe, and controlled with
medication; he can tell when he is going to have a seizure and does not lose
consciousness during one. See generally Sutton v. United Air Lines, Inc., 119
3
To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show
that (1) he has a disability; (2) he is a qualified person; and (3) his employer unlawfully
discriminated against him because of his disability. Reed v. Heil Co., 206 F.3d 1055, 1061 (11th
Cir. 2000).
4
S.Ct. 2139, 2146-47 (1999) (if a plaintiff’s impairment is corrected by medication
or other measures, he does not have an impairment that presently substantially
limits a major life activity). In addition, he lost no work time because of the two
seizures he suffered.
Even with the doctor-imposed restrictions, Sicilia still can perform certain
jobs. See id. at 2151 (“when the major life activity under consideration is that of
working, the statutory phrase ‘substantially limits’ requires, at a minimum, that” a
plaintiff allege he is unable to work in a broad class of jobs); see also 29 C.F.R.
§ 1630.2(j)(3)(i) (“inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working”).4
Sicilia also argues that UPS did not meet its burden in showing that they
attempted to accommodate him reasonably. But because Sicilia did not qualify as
disabled, UPS was not required to accommodate him. See Earl v. Mervyns, Inc.,
207 F.3d 1361, 1365 (11th Cir. 2000) (employers must provide a reasonable
accommodation only for employees with known disabilities). Even if Sicilia did
qualify for an accommodation, UPS was not required to violate its own seniority
4
We reject Sicilia’s argument that the district court erred in applying the ADA framework instead
of construing the FCRA in conjunction with section 385.207(1). Section 385.207 directs the
Department of Health to establish programs for the medical care and assistance of persons with
epilepsy; it is no civil rights statute. This statute is unrelated to the FCRA and is not required to be
read in conjunction with it. In addition, both federal and state caselaw plainly mandate that disability
claims under the FCRA be analyzed under the ADA.
5
system to accommodate him to the day-shift positions for which he applied. See
U.S. Airways, Inc. v. Barnett, 122 S.Ct. 1516, 1524 (2002) (explaining that it
ordinarily will be unreasonable for an employer to violate its own seniority system
to accommodate an otherwise qualified disabled person); Fla. Stat. §
760.10(8)(b).5
We turn to Sicilia’s retaliation claim. He alleged that UPS suspended and
terminated him in retaliation for filing his administrative and civil complaints.
Sicilia filed his charge of discrimination with the EEOC after his employment was
suspended and filed his state court complaint in November 2006. Soon after, UPS
removed the state action to federal court. In February 2007, UPS informed Sicilia
that his employment would be terminated as of 3 March 2007. The district court
concluded that no causal connection existed between his protected activities and
his suspension and termination.
To establish a prima facie case of retaliation under the ADA, a plaintiff
must show that (1) he engaged in statutorily protected expression, (2) he suffered
an adverse employment action, and (3) the adverse action causally was related to
the protected expression. Higdon v. Jackson, 393 F.3d 1211, 1219 (11th Cir.
5
We decline to address Sicilia’s appellate arguments that he was not required to prove
discriminatory intent and that UPS regarded him as disabled: he raised these arguments for the first
time in a reply brief. See United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002).
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2004).6 To establish a causal connection, a plaintiff must show that the decision-
makers were aware of the protected conduct and that the protected activity and the
adverse act were at least somewhat related and in close temporal proximity. Id. at
1220.
Sicilia’s retaliation claim is defeated because he can show no causal link
between his suspension and termination and the filing of his EEOC charge and
civil rights complaint. He was removed from his position before he filed his
EEOC charge and state court complaint. See Griffin v. GTE Fla., Inc., 182 F.3d
1279, 1284 (11th Cir. 1999) (stating that the adverse act must follow the protected
conduct). And the 4-month period between when he filed his state court complaint
and when he was terminated is, by itself, insufficient to establish retaliation See
Higdon, 393 F.3d at 1221 (stating that three-month interval between protected
speech and adverse act is too long, standing alone, to establish an inference of
retaliation). Sicilia has presented no other causation evidence. Therefore, the
district court properly granted summary judgment to UPS on the retaliation claim.
AFFIRMED.
6
Retaliation claims under the FCRA’s anti-retaliation provision, section 760.10(7), are analyzed
under the framework of Title VII. See Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387
(11th Cir. 1998). And we assess ADA retaliation claims under the same framework as Title VII
retaliation claims. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998).
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