USCA11 Case: 22-13976 Document: 25-1 Date Filed: 10/10/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13976
Non-Argument Calendar
____________________
KENNETH G. LEWIS,
Plaintiff-Appellant,
versus
UNION HOME MORTGAGE CORP.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cv-00728-PGB-DAB
____________________
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2 Opinion of the Court 22-13976
Before WILSON, LUCK, and BRASHER, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Kenneth G. Lewis appeals the district
court order granting summary judgment to his prospective em-
ployer, Defendant-Appellee Union Home Mortgage Corporation
(Union Home), in an employment discrimination action under the
Americans with Disabilities Act,
42 U.S.C. § 12112(a) (ADA) and
the Florida Civil Rights Act, Fla Stat. § 760.10(1)(a) (FCRA). After
careful review, we affirm.
I. Background
In December 2016, Lewis suffered an ischemic stroke that
left him partially disabled and unable to work for over two years.
Prior to his stroke, he worked as a licensed mortgage loan officer
for approximately twenty years. Following his recovery, from
March to September 2019, Lewis worked as a loan officer for Car-
rington Mortgage Services (CMS). In January 2020, Lewis applied
for a loan officer position at Union Home. He was not hired for the
position, and Union Home cited Lewis’s inability to self-source
business as grounds for its decision. Because Union Home employ-
ees are paid on commission, not salary, the company requires loan
officers to establish and maintain their own client relationships.
Lewis subsequently filed a Charge of Discrimination against
Union Home with the Equal Employment Opportunity Commis-
sion and the Florida Commission of Human Relations. In 2021, he
sued Union Home, alleging violations of the ADA and FCRA. His
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22-13976 Opinion of the Court 3
complaint alleged that Union Home discriminated against him be-
cause of his disability, and that its explanation for not hiring him
was a pretext for discrimination.
Union Home moved for summary judgment, arguing that
Lewis failed to establish that he was qualified for the position.
Through discovery, Union Home obtained Lewis’s income docu-
ments from 2019, which showed that he closed only two loans dur-
ing his six-month employment with CMS. Union Home requires
their loan officers to close three loans per month. Union Home also
argued that while Lewis was employed by CMS, he did not request
accommodations, nor did he contend that his low production was
a result of his disability. Moreover, after Union Home declined to
hire him, Lewis worked for another mortgage servicer and closed
only three loans in six months. Additionally, Union Home argued
that even if Lewis had established he was qualified for the role, he
failed to show that Union Home declined to hire him because of his
disability.
The district court found that no reasonable jury could have
concluded that Lewis was qualified or that discrimination was the
reason that Union Home did not hire him, and therefore granted
summary judgment for Union Home without considering pretext.
Lewis timely appealed.
II. Discussion
This court reviews a district court’s grant of summary judg-
ment de novo, “viewing all evidence and drawing all reasonable
factual inferences in favor of the nonmoving party.” Lewis v. Union
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4 Opinion of the Court 22-13976
City,
934 F.3d 1169, 1179 (11th Cir. 2019) (quoting Strickland v. Nor-
folk S. Ry. Co.,
692 F.3d 1151, 1154 (11th Cir. 2012)). This court af-
firms a grant of summary judgment only if there “is no genuine
dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a).
The ADA prohibits covered private employers from “dis-
criminat[ing] against a qualified individual on the basis of [his] dis-
ability.”
42 U.S.C. § 12112(a). Claims brought under the FCRA are
analyzed under the same framework as claims brought under the
ADA. Chanda v. Engelhard/ICC,
234 F.3d 1219, 1221 (11th Cir. 2000).
Under the ADA framework, a plaintiff must make out a prima facie
case of discrimination. If the plaintiff is successful, the burden of
production shifts to the defendant to articulate a legitimate, non-
discriminatory reason for the employment action, and the plaintiff
must then demonstrate that the employer’s proffered reason was a
pretext for discrimination. Lewis, 934 F.3d at 1179; see also McDon-
nell Douglas Corp. v. Green,
411 U.S. 792, 804–07 (1973).
To establish a prima facie case of discrimination under the
ADA, a plaintiff must show that he: “(1) is disabled, (2) is a qualified
individual, (3) and was discriminated against because of [his] disa-
bility.” Lewis, 934 F.3d at 1179. It is undisputed that Lewis is disa-
bled. We begin our analysis, then, by considering whether Lewis
was “qualified” for the role to which he applied.
A. Qualified
A qualified individual is one who “with or without reasona-
ble accommodation, can perform the essential functions of the
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22-13976 Opinion of the Court 5
employment position that such individual holds or desires.” Lewis,
934 F.3d at 1182 (quoting
42 U.S.C. § 12111(8)). Essential functions
include “the fundamental job duties of the employment position
the individual with a disability holds or desires.”
29 C.F.R.
§ 1630.2(n)(1). Whether a function is essential “is evaluated on a
case-by-case basis,” and factors to consider include: (1) the em-
ployer’s judgment regarding which functions are essential; (2) the
posted job descriptions; (3) the time spent on the job performing
the function; (4) the consequences of not performing the function;
(5) the terms of a collective bargaining agreement; (6) the work ex-
perience of past employees; and (7) the current work experience of
employees in similar jobs. Lewis, 934 F.3d at 1182 (quoting D’Angelo
v. ConAgra Foods, Inc.,
422 F.3d 1220, 1230 (11th Cir. 2005)); see also
20 C.F.R. § 1630.2(n)(3). No matter how mistaken an employer
may be, this court’s “inquiry is limited to whether an employer
gave an honest explanation of its behavior.” Elrod v. Sears,
939 F.2d
1466, 1470 (11th Cir. 1991) (quoting Mechnig v. Sears, Roebuck & Co.,
864 F.2d 1359, 1365 (7th Cir. 1988)).
Viewing all facts in a light most favorable to Lewis, we find
that Lewis did not establish that he was qualified to serve as a Un-
ion Home loan officer. Union Home has demonstrated, through
the qualifications and output of their workforce, that self-sourcing
business is a key qualification for loan officer candidates. Lewis’s
employment history—as well as his performance after being re-
jected from Union Home—indicate that there is no genuine issue
as to his inability to perform essential job functions.
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6 Opinion of the Court 22-13976
B. Causation
Even if Lewis could meet the second prong of the prima fa-
cie test, he fails to meet the element of causation and thus cannot
show a prime facie case of discrimination. A plaintiff can prove that
an employer treated an individual outside of his protected class
more favorably by showing that he and a comparator were “simi-
larly situated in all material respects.” Lewis v. City of Union City,
918
F.3d 1213, 1229 (11th Cir. 2019) (en banc). Generally, a “similarly
situated” comparator will have “engaged in the same basic conduct
(or misconduct) as the plaintiff,” “been subject to the same employ-
ment policy,” “will ordinarily (although not invariably) have been
under the jurisdiction of the same supervisor,” and “will share the
plaintiff’s employment or disciplinary history.”
Id. at 1227–28.
We find persuasive United Home’s argument that, even if
Lewis had established he was qualified, he failed to show that
United Home declined to hire him because of his disability. Lewis
failed to identify similarly situated comparators, as his alleged com-
parators were hired for different positions, by different regional
managers, and demonstrated an ability to self-source business.
Thus, Lewis failed to establish a prima facie case of disability
discrimination. 1
1 Because Lewis failed to demonstrate a prime facie case of disability discrimi-
nation, we do not need to address the pretext arguments.
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22-13976 Opinion of the Court 7
III. Conclusion
For the reasons given above, the district court did not err in
granting summary judgment to Union Home.
AFFIRMED.
