USCA11 Case: 20-14604 Document: 38-1 Date Filed: 12/16/2022 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14604
____________________
CHARLES CAMERON COOKE,
Plaintiff-Appellant,
versus
CARPENTER TECHNOLOGY CORPORATION,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:19-cv-00115-AKK
____________________
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2 Opinion of the Court 20-14604
Before JORDAN and ROSENBAUM, Circuit Judges, and STEELE, * Dis-
trict Judge.
PER CURIAM.
Plaintiff-Appellant Charles Cooke sued his former employer
Defendant-Appellee Carpenter Technology Corporation alleging
discrimination in violation of the Americans with Disabilities Act,
42 U.S.C. §§ 12101 et seq., and interference and retaliation in viola-
tion of the Family and Medical Leave Act,
29 U.S.C. §§ 2611 et seq.
The district court granted summary judgment in favor of Carpen-
ter Technology on all claims. After careful review and with the
benefit of oral argument, we reverse and remand.
I
“We review de novo a grant of summary judgment and re-
view findings of fact for clear error.” Buending v. Town of Reding-
ton Beach,
10 F.4th 1125, 1130 (11th Cir. 2021). Summary judg-
ment is proper if the evidence shows “that there is no genuine dis-
pute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). As we recently explained:
A court assessing motions for summary judgment
must “resolve all ambiguities and draw reasonable
factual inferences from the evidence in the non-mo-
*The Honorable John Steele, U.S. District Judge for the Middle District of Flor-
ida, sitting by designation.
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20-14604 Opinion of the Court 1
vant’s favor.” A court “may not weigh conflicting ev-
idence or make credibility determinations of [its]
own. If the record presents disputed issues of fact, the
court may not decide them; rather, [it] must deny the
motion and proceed to trial.”
Buending, 10 F.4th at 1130 (citations omitted). For this reason, the
actual facts may or may not be as described in this opinion. See
Powell v. Snook,
25 F.4th 912, 916 (11th Cir. 2022).
II.
In July 2015, Cooke began working for Carpenter Technol-
ogy as a Nondestructive Testing Unit (“NDT”) employee. NDT
employees worked on a “swing shift” schedule, rotating between
day and night shifts. Carpenter Technology claims that swing shifts
help maintain employee morale and are necessary to meet the de-
mands of the company.
Cooke was diagnosed with severe depression, anorexia, and
anxiety. In May 2017, Cooke informed his supervisor that he was
experiencing suicidal thoughts and starving himself. Cooke’s su-
pervisor informed human resources and suggested that Cooke con-
tact Carpenter Technology’s employee assistance program and ap-
ply for FMLA leave. Carpenter Technology also told Cooke to ap-
ply for short term disability following his FMLA leave.
In June 2017, Cooke sought treatment and applied for inter-
mittent FMLA leave. Carpenter Technology instead put Cooke on
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2 Opinion of the Court 20-14604
continuous leave. At the conclusion of his FMLA leave, Cooke was
placed on short term disability leave.
In November 2017, Cooke contacted Carpenter Technology
about returning to work, and Carpenter Technology requested a
letter from Cooke’s physician. By December 2017, Cooke pro-
vided a letter from a treating nurse practitioner who stated that
Cooke could return to work but would benefit from a consistent
work schedule. Cooke also provided a letter from his therapist,
who recommended that Cooke not return to a swing shift sched-
ule, which could directly affect his progress and future success.
In February 2018, Carpenter Technology offered to put
Cooke on a consistent schedule of only day shift or only night shift
for a period of 30 days, with no possibility of reevaluation thereaf-
ter. Because Cooke had exhausted all his leave options, he would
thereafter have to resume working on a swing shift schedule, quit,
or be terminated.
Cooke declined the offer, wanting to follow his medical pro-
viders’ recommendations. Cooke tried to continue communica-
tions with Carpenter Technology for the next month. Carpenter
Technology refused to consider a permanent consistent schedule
and delayed any substantive discussions with Cooke about poten-
tial accommodations. Without such an accommodation and no re-
maining available leave, Cooke resigned and found a new job.
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20-14604 Opinion of the Court 3
III.
The district court granted Carpenter Technology’s motion
for summary judgment. In relevant part, the district court found
that Cooke could not prevail on his ADA discrimination claim be-
cause Cooke had caused the breakdown in the required interactive
process. As to the FMLA interference and retaliation claims, the
district court struck Cooke’s affidavit and then found the undis-
puted facts supported Carpenter Technology’s summary judgment
request.
A
We start with Cooke’s ADA discrimination claim based on
Carpenter Technology’s alleged failure to accommodate his disa-
bility. 1
The ADA prohibits employers from discriminating against
qualified individuals because of a disability.
42 U.S.C. § 12112(a).
To establish a prima facie case of discrimination under the ADA,
Cooke must show that he: (1) has a disability; (2) is a qualified indi-
vidual; and (3) was unlawfully subjected to discrimination because
of his disability. Stewart v. Happy Herman's Cheshire Bridge, Inc.,
117 F.3d 1278, 1285 (11th Cir. 1997) (citation omitted). “[T]o trig-
ger an employer’s duty to provide a reasonable accommodation,
the employee must (1) make a specific demand for an accommoda-
tion and (2) demonstrate that such accommodation is reasonable.”
1 Cooke also brought an ADA retaliation claim, but the district court found
that Cooke abandoned that claim. Cooke does not appeal that finding or make
any arguments related to ADA retaliation, so we do not disturb that conclu-
sion.
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4 Opinion of the Court 20-14604
Owens v. Governor's Off. of Student Achievement, No. 21-13200,
___ F.4th ___,
2022 WL 16826093, at *4 (11th Cir. Nov. 9, 2022)
(citation omitted) (applying ADA principles in Rehabilitation Act
case). The employee bears the “modest” burden of identifying his
disability and suggesting how the accommodation will overcome
his physical or mental limitations.
Id. at *6. After the employee
provides this information, the employer must “’initiate an infor-
mal, interactive process’ with the employee to discuss the employ-
ee's specific limitations, explore potential accommodations, and se-
lect the most appropriate accommodation for both the employer
and the employee.”
Id. at *4 (citation omitted).
The district court erred when it found that Cooke could not
prevail on his ADA claim because Cooke caused the breakdown in
the interactive process. It is certainly correct that “an employer
will not be liable for failure to accommodate if the employee is re-
sponsible for the breakdown of the interactive process.” D'Onofrio
v. Costco Wholesale Corp.,
964 F.3d 1014, 1022 (11th Cir. 2020)
(citation omitted); see also Stewart,
117 F.3d at 1287 (“Liability
simply cannot arise under the ADA when an employer does not
obstruct an informal interactive process; makes reasonable efforts
to communicate with the employee and provide accommodations
based on the information it possesses; and the employee’s actions
cause a breakdown in the interactive process.”).
But viewing the evidence in light most favorable to Cooke,
Carpenter Technology refused to consider any accommodation be-
yond the 30-day period. Cooke alleges he made repeated attempts
to continue conversations about a reasonable accommodation, but
Carpenter Technology delayed and failed to engage in any mean-
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20-14604 Opinion of the Court 5
ingful manner. Nor did Carpenter Technology show that an ac-
commodation beyond the 30-day period would have been unrea-
sonable or unduly burdensome. A reasonable jury could conclude
that Carpenter Technology – not Cooke – disrupted the interactive
process. Summary judgment on Cooke’s ADA claim was therefore
improper.
B
We next turn to Cooke’s FMLA interference and retaliation
claims. The district court granted summary judgment on both
claims for the same reason, so we will consider them together.
When opposing summary judgment, Cooke submitted an
affidavit which averred that Carpenter Technology required
Cooke to take continuous FMLA leave when he only requested in-
termittent leave. The district court declined to consider the affida-
vit, finding it inconsistent with Cooke’s deposition testimony.
Without the affidavit, the district concluded that Cooke had failed
to negate Carpenter Technology’s undisputed facts and granted
summary judgment.
The district court erred by not considering Cooke’s affidavit.
“It is of course true that ‘when a party has given clear answers to
unambiguous questions which negate the existence of any genuine
issue of material fact for summary judgment, that party cannot
thereafter create such an issue with an affidavit that merely contra-
dicts, without explanation, previously given clear testimony.’”
Liebman v. Metro. Life Ins. Co.,
808 F.3d 1294, 1300 (11th Cir.
2015) (quoting Van T. Junkins & Assoc., Inc. v. U.S. Indus., Inc.,
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6 Opinion of the Court 20-14604
736 F.2d 656, 657 (11th Cir.1984)). To strike an affidavit as a sham,
the new testimony need be in “irreconcilable conflict” with the
prior testimony. Tippens v. Celotex Corp.,
805 F.2d 949, 954 (11th
Cir. 1986).
Cooke’s deposition testimony and affidavit were not in ir-
reconcilable conflict. During the deposition, Cooke briefly testified
that he applied for FMLA leave. Cooke was not asked whether he
applied for continuous or intermittent leave. In his affidavit, Cooke
clarified that he applied for intermittent leave and Carpenter Tech-
nology changed the request to continuous leave. Cooke’s affidavit
creates a genuine issue of material fact with respect to the material
issue of whether Carpenter Technology’s unilateral decision to put
Cooke on continuous leave, instead of Cooke’s requested intermit-
tent leave, constituted FMLA interference or retaliation. The dis-
trict court erred in not considering the affidavit.
IV
We reverse the district court’s grant of summary judgment
in favor of Carpenter Technology and remand for proceedings con-
sistent with our opinion.
REVERSED AND REMANDED.
