Michaelene tTtteh v. WAFF Television, Raycom Media, Inc. , 638 F. App'x 986 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12278
Non-Argument Calendar
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D.C. Docket No. 5:11-cv-00825-MHH
MICHAELENE TETTEH,
Plaintiff-Appellant,
versus
WAFF TELEVISION,
RAYCOM MEDIA, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 17, 2016)
Before ED CARNES, Chief Judge, WILLIAM PRYOR, and FAY, Circuit Judges.
PER CURIAM:
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Michaelene Tetteh worked as a sports anchor, reporter, and photographer for
WAFF Television and Raycom Media, Inc. (collectively “WAFF”). In that
capacity, Tetteh attended sports events, served as an on-air personality, and shot
footage using a camera that WAFF provided. In February 2009 Tetteh suffered an
injury while filming one such event when a basketball player crashed into her. As
a result of that injury, her physician imposed “lifting restrictions,” which prevented
her from lifting objects weighing over 5 pounds, and those restrictions extended to
the approximately 20-pound camera she ordinarily used on her assignments.
Tetteh informed WAFF of her injury and suggested that she could use a lighter
camera or have another photographer accompany her on assignments. WAFF
advised Tetteh that she could not return to work until she was able to carry the
camera it provided. When Tetteh eventually attempted to return to work, WAFF
informed her that she had been replaced and no other positions were available for
her.
Tetteh brought this pro se lawsuit against WAFF, alleging disability
discrimination in violation of the Americans with Disabilities Act. 1 The magistrate
judge issued a report recommending that the district court grant summary judgment
in favor of WAFF on the ground that Tetteh was not a “qualified individual”
1
Tetteh asserted a number of other claims against WAFF and the district court granted
summary judgment in favor of WAFF on all of them. Tetteh appeals only the district court’s
grant of summary judgment with respect to her claim of disability discrimination.
2
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within the meaning of the ADA. Specifically, the magistrate judge found that
photography was an essential function of Tetteh’s employment and that she had
failed to show that reasonable accommodations were available that would have
rendered her able to perform that function. The district court adopted the report
and recommendation, and granted summary judgment against Tetteh. This is her
appeal. 2
We review de novo a district court’s grant of summary judgment, viewing
the facts in the light most favorable to the non-moving party. Witter v. Delta Air
Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998). “Summary judgment is
appropriate if the record shows no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law.” Id. (quotation marks
omitted).
The ADA prohibits covered employers from “discrimat[ing] against a
qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). “[T]o
establish a prima facie case of discrimination in violation of the ADA, the plaintiff
must prove that (1) she has a disability; (2) she is a qualified individual; and
(3) she was subjected to unlawful discrimination because of her disability.”
Morisky v. Broward Cty., 80 F.3d 445, 447 (11th Cir. 1996). Here, the parties
2
In conjunction with this appeal, WAFF has filed a motion to exclude additional
evidence that Tetteh included as an appendix to her reply brief. Because Tetteh did not introduce
that evidence to the district court, despite the opportunity to do so, we will not consider it on
appeal. WAFF’s motion to exclude that evidence is denied as moot.
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disagree about the second element, that is, whether Tetteh is a qualified individual
within the meaning of the ADA. A person is a “qualified individual” when she is
“able to perform the essential functions of the employment position that [s]he
holds or seeks with or without reasonable accommodation.” Reed v. Heil Co., 206
F.3d 1055, 1061 (11th Cir. 2000).
Tetteh first contends that the district court erred in finding that video
photography was an essential function of her job. “Essential functions are the
fundamental job duties of the employment position.” Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1258 (11th Cir. 2001) (quotation marks omitted).
“Determining whether a particular job duty is an essential function involves a
factual inquiry to be conducted on a case-by-case basis.” Id. “[I]n conducting this
inquiry, consideration shall be given to the employer’s judgment and if an
employer has prepared a written description for the job, this description shall be
considered evidence of the essential functions of the job.” Id. (quotation marks
and alterations omitted).
Here, the parties’ employment agreement explicitly provided that Tetteh’s
duties included “acting as Sports Anchor/Reporter/Photographer,” and Tetteh
acknowledges that the term “photographer,” as used in the television news
industry, encompasses a person who operates a video camera. More to the point,
Tetteh concedes that her “job duties . . . included carrying a video camera and
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shooting video footage.” In light of those facts, video photography was an
essential function of Tetteh’s job and that function necessarily required her to carry
a video camera.
Tetteh next contends that even if video photography was an essential
function of her job, reasonable accommodations were available that would have
rendered her able to perform that function. Reasonable accommodations are
“[m]odifications or adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is customarily performed,
that enable an individual with a disability who is qualified to perform the essential
functions of that position.” 29 C.F.R. § 1630.2(o)(1)(ii). The employee has “the
burden of persuading the [factfinder] that reasonable accommodations were
available.” Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997).
Tetteh maintains that at least two reasonable accommodations were available
that would have rendered her able to perform video photography work. She first
argues that WAFF could have provided her with a lighter camera. That argument
fails. Although she had the opportunity to do so, Tetteh did not present the district
court with any credible evidence that another video camera was available that both
fell within her lifting restrictions and was compatible with WAFF’s broadcasting
equipment. Although she asserts that WAFF failed to research whether such a
camera existed, “[an employer’s] failure to investigate d[oes] not relieve [the
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employee] of h[er] burden of producing probative evidence that reasonable
accommodations were available.” Moses v. Am. Nonwovens, Inc., 97 F.3d 446,
448 (11th Cir. 1996). Accordingly, Tetteh has failed to show that WAFF could
have accommodated her disability by supplying a lighter video camera.
Tetteh next argues that WAFF could have accommodated her disability by
having another photographer accompany her on assignments while she was
recovering from her injuries. That argument likewise fails. Even if WAFF could
have assigned another photographer to assist Tetteh, the ADA does not require an
employer “to reallocate job duties in order to change the essential functions of a
job.” Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000) (quotation
marks omitted). Because Tetteh has not shown that reasonable accommodations
were available, she has failed to show that she was a qualified individual within the
meaning of the ADA. And because she has failed to show that she was a qualified
individual, her claim of disability discrimination fails. The district court therefore
correctly granted summary judgment against her.
AFFIRMED.
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