Dee Russell v. City of Tampa

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14946
Non-Argument Calendar
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D.C. Docket No. 8:14-cv-00814-EAK-AEP
DEE RUSSELL,
Plaintiff-Appellant,
versus
CITY OF TAMPA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 8, 2016)
Before MARCUS, JORDAN and JULIE CARNES, Circuit Judges.
PER CURIAM:
Dee Russell, proceeding pro se, appeals the district court’s grant of summary
judgment to his former employer, the City of Tampa (“the City”) in his
employment discrimination and retaliation suit, which he brought under the
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Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a) and the Florida
Civil Rights Act (“FCRA”), Fla. Stat. § 760.01 et seq. On appeal, Russell argues
that: (1) the district court erroneously granted summary judgment in the City’s
favor on his discrimination claim because a jury could have reasonably found that
the City treated him differently due to his request for an accommodation on the
basis of a disability; and (2) he was unable to properly articulate his retaliation
claim because he was a pro se litigant. After thorough review, we affirm. 1
We review de novo a district court order granting 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
should be granted 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). A party moving for summary judgment has the burden of showing
that there is no genuine issue of fact. Rice-Lamar v. City of Ft. Lauderdale, Fla.,
232 F.3d 836, 840 (11th Cir. 2000). On the other hand, a party opposing a
properly submitted motion for summary judgment may not rest upon mere
1
As an initial matter, to the extent that Russell challenges the district court’s decision regarding
the contested affidavits of Michael Smith and Emil Joseph, Russell appears to misread the
district court’s order. Although the district court did not explicitly grant or deny the defendant’s
motion to strike these affidavits, the district court implicitly denied that motion by considering
the contents of those affidavits in its order granting summary judgment. Thus, Russell’s
arguments regarding the inclusion of his affidavits are moot because the district court considered
the affidavits.
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allegation or denials of his pleadings, but must set forth specific facts showing that
there is a genuine issue for trial. Id.
We hold pro se complaints to less stringent standards than formal pleadings
drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, while
we construe a pro se litigant’s pleadings liberally, “this leniency does not give a
court license to serve as de facto counsel for a party, or to rewrite an otherwise
deficient pleading in order to sustain an action.” Campbell v. Air Jam. Ltd., 760
F.3d 1165, 1168-69 (11th Cir. 2014).
First, we are unpersuaded by Russell’s claim that the district court erred in
granting summary judgment in the City’s favor on his discrimination claim.
Discrimination under the ADA includes:
not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the
business of such covered entity.
42 U.S.C. § 12112(b)(5)(A); see also 29 C.F.R. § 1630.9. To state a prima facie
claim for failure to accommodate under the ADA, a plaintiff must show that: (1) he
is disabled; (2) he is a qualified individual, meaning able to perform the essential
functions of the job; and (3) he was discriminated against because of his disability
by way of the defendant’s failure to provide a reasonable accommodation. See
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001).
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In Terrell v. USAir, we held that an employer’s delay in granting a requested
accommodation was not unreasonable. 132 F.3d 621, 628 (11th Cir. 1998).
Terrell was diagnosed with carpal tunnel syndrome (“CTS”) and requested a work
station with a drop keyboard as a reasonable accommodation. Id. at 623. Terrell
was not provided a drop keyboard at her workstation, but was allowed to use a
workstation with a drop keyboard when it was available. Id. When it was not
available and she informed her supervisor of pain, she was tasked with a job that
did not require her to type. Id. Eventually, Terrell was placed on unpaid medical
leave because she exceeded the 60-day limit for injured employees to work on
limited duty, meaning fewer hours than the employee’s scheduled shift. Id.
However, when part-time positions became available at USAir, the company
contacted Terrell, who then returned to work and was provided the drop keyboard.
Id. at 623-24. We calculated the “delay” in providing a drop keyboard for Terrell
as three months. Id. at 628. We held that “[t]he district court did not err in
concluding that this delay was reasonable, considering that Plaintiff had some
access to a drop keyboard position during this time and that she was not required to
type when she had no access.” Id.
Here, the district court did not err in determining that, based on the
uncontested facts, the City’s 28-day delay in granting Russell’s requested
accommodation was reasonable. Notably, Russell’s 28-day delay was significantly
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shorter than Terrell’s 3-month delay, and Russell, unlike Terrell, was never
furloughed after exhausting time to work on limited duty. See Terrell, 132 F.3d at
623-24, 628. Plus, even with the harsher circumstances in Terrell, we held that the
district court did not err in concluding that the delay in granting an accommodation
was reasonable. See id. at 628. Moreover, like Terrell, Russell was given
temporary accommodations -- he was allowed to use the LODAL truck he
requested when it was available and was allowed to use paid sick leave as
necessary while the accommodation request was pending. See id. at 623-24.
Additionally, the delay in granting Russell’s requested accommodation was not
without cause. Indeed, the City explained that trucks were assigned to routes,
rather than drivers, and the reassignment of a different truck to a different route
would need approval. Finally, although Russell presented some evidence that
other employees were allowed to drive a truck other than the one assigned to them,
he did not present any evidence that other employees were permanently reassigned
to a different truck without delay. Thus, construing the facts in the light most
favorable to Russell, the district court did not err in concluding that the 28-day
delay in approving Russell’s requested accommodation was reasonable.
We are also unpersuaded by Russell’s argument that the district court did not
afford him the proper amount of leniency in construing his pro se pleadings
concerning his retaliation claim. This claim, it appears, is based on his allegation
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that in order to continue working, he was forced to sign a paper in which he agreed
that he was capable of performing his job functions. However, the record indicates
that Russell’s only mention of this paper was in his complaint, and nowhere else in
the record. Further, the district court specifically addressed Russell’s allegations
and found them insufficient to state a claim of retaliation. Russell does not
otherwise challenge the district court’s grant of summary judgment on his
retaliation claim. Thus, we affirm.
AFFIRMED.
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