Anderson v. JPMorgan Chase & Co.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-11483 MARCH 22, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 6:08-cv-00662-MSS-DAB
SHARON ANN ANDERSON,
Plaintiff - Appellant,
versus
JPMORGAN CHASE & CO.,
CHASE BANKCARD SERVICES, INC.,
JPMORGAN CHASE BANK, N.A.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 22, 2011)
Before EDMONDSON, CARNES and MARTIN, Circuit Judges.
PER CURIAM:
Sharon Ann Anderson, appearing pro se, appeals the grant of summary
judgment in favor of her former employer in her discrimination and retaliation suit
brought pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§
12112(a) and 12203(a). No reversible error has been shown; we affirm.
Anderson, who suffers from reactive airway disease and chronic asthma,
worked for JPMorgan Chase & Company as a First Response Coordinator in the
call center. She alleged that her asthma symptoms flared up when Chase began
having carpets cleaned around Anderson’s work area. Chase temporarily moved
her to the Human Resources (“HR”) department; but the carpets there eventually
had to be cleaned too. Over the next six months, Chase offered Anderson other
accommodations; but these accommodations also caused her asthma symptoms to
flare. Anderson alleged that Chase discriminated against her by not providing her
with a reasonable accommodation and that her termination was in retaliation for
complaining to the Equal Employment Opportunity Commission (“EEOC”).
The district court concluded that Anderson made no prima facie case of
disability discrimination because Chase reasonably tried to accommodate her and
because she identified no reasonable accommodation that would have allowed her
to perform the essential functions of her job. About retaliation, the district court
concluded that Anderson’s refusal to return to work after being specifically
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directed to do so constituted a legitimate, non-retaliatory reason for Chase’s
termination of her and that Anderson failed to show that this reason was
pretextual.
On appeal, Anderson argues that the district court improperly granted
summary judgment and repeats her argument that Chase provided her with no
reasonable accommodation. We review the grant of summary judgment de novo,
viewing the evidence and all reasonable factual inferences in the light most
favorable to the nonmoving party. Weeks v. Harden Mfg. Corp., 291 F.3d 1307,
1311 (11th Cir. 2002).
Under the ADA, an employer discriminates against a qualified person if the
employer fails to provide reasonable accommodation for the person’s disability,
unless the employer can demonstrate that the accommodation would impose an
undue hardship on the employer’s business. 42 U.S.C. § 12112(b)(5)(A). “The
plaintiff bears the burden of identifying an accommodation, and of demonstrating
that the accommodation allows [her] to perform the job’s essential functions.”
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255-56 (11th Cir. 2001).
“Whether an accommodation is reasonable depends on specific circumstances.”
Terrell v. USAir, 132 F.3d 621, 626 (11th Cir. 1998).
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Contrary to Anderson’s assertion, Chase engaged fully in an interactive
process to accommodate Anderson. After Anderson started having breathing
problems at her original work station, Chase moved her to five different work
stations in an effort to accommodate her. Chase also allowed Anderson to take
many days of paid leave, provided her with fans, offered to remove the carpet from
her workspace, suggested that she take short-term disability, cleaned her carpet
with only water, and tested the air quality of her work stations. Chase also tried to
discuss Anderson’s condition with her doctor, but Anderson would not allow
Chase to do so.1
That Chase offered Anderson many accommodations is no concession that
any attempted accommodation was reasonable. See Terrell, 132 F.3d at 627 n.6.
While Chase’s attempted accommodations were unsuccessful, Anderson showed
no reasonable accommodation that would have allowed her to perform the
essential functions of her job, which included being present physically at work.2
1
On these facts, Anderson’s assertion that Chase intentionally moved her to
work stations that would make her asthma flare up is simply unsupported by the
record.
2
Anderson argues that being allowed to remain in the HR Department or to
work from a small conference room was reasonable accommodation. But
undisputed record evidence showed that Anderson had breathing troubles while in
the HR Department and that the HR Department carpets needed to be cleaned
periodically. The small conference rooms were needed for other purposes, and
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Anderson was entitled only to a reasonable accommodation, not the
accommodation of her choice. Earl v. Mervyn’s, Inc., 207 F.3d 1361, 1367 (11th
Cir. 2000).
Under these circumstances, no reasonable juror could find in Anderson’s
favor; and summary judgment was thus appropriate. Anderson’s arguments to the
contrary are unavailing. “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.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d
1278, 1287 (11th Cir. 1997).
About retaliation, Anderson repeats her argument that Chase fired her
because she complained to the EEOC about Chase’s failure to accommodate her
Anderson still could have been exposed to fumes that would affect her asthma and
make her leave work. Anderson also argues that Chase could have reassigned her
to a different position in Chase’s Home Finance Department, which was located in
another town. But Anderson failed to identify a specific job or to explain why she
was qualified for the job or whether she could fulfill the job’s essential
requirements. See Lucas, 257 F.3d at 1258-59 (where a plaintiff is able to show
evidence that a vacant job in another department may have existed, but offered no
evidence about whether he was qualified for that job or could perform the job’s
essential functions, the plaintiff failed to satisfy his burden of showing a
reasonable accommodation that his employer could have provided).
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and that Chase’s reason for firing her was pretextual. When a plaintiff makes a
prima facie case of retaliation, the burden shifts to the employer to articulate
legitimate reasons for the challenged employment act.3 Johnson v. Booker T.
Washington Broad. Serv., Inc., 234 F.3d 501, 507 n.6 (11th Cir. 2000). When the
employer meets its burden, the plaintiff then must demonstrate that the employer’s
reasons are a pretext for prohibited retaliatory conduct. Id.After Chase’s attempted accommodations did not work, Anderson was
absent from work for two weeks. Chase excused the time away. But Chase then
instructed Anderson to return to work or to allow its medical director to speak
with her doctor. Chase terminated Anderson for failing to return to work after
being instructed to do so. Not being physically able to come to work when
physical attendance is a requirement of one’s job is a legitimate reason for an
employer to take an adverse employment act against an employee. See Gilchrist v.
Bolger, 733 F.2d 1551, 1553 (11th Cir. 1984) (concluding that the employer’s
explanation that it did not promote plaintiff because of her poor attendance record
was a legitimate, nondiscriminatory reason). That Anderson’s job required that
she regularly be physically present in Chase’s office and that Anderson had a large
3
We assume, as did the district court, that Anderson made a prima facie case
of retaliation.
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number of absences is undisputed. Chase also had a written policy which stated
that employees could be fired for excessive absences.
To show pretext when an employer claims that a plaintiff was fired for
violating a work rule, a plaintiff must show evidence that (1) she did not violate
the cited work rule, or (2) that if she did violate the rule, other employees outside
the protected class who engaged in similar acts were not similarly treated. Damon
v. Fleming Supermarkets, Inc., 196 F.3d 1354, 1363 (11th Cir. 1999). We agree
with the district court that Anderson failed to show that Chase’s reasons for
terminating her were pretextual. She failed to show either that she did attend work
or that other employees who were absent from work for prolonged periods were
not fired.
Anderson argues that she showed pretext because Chase employees
intentionally placed her in work stations with chemicals, thus preventing her from
coming to work. But conclusory allegations and unsupported assertions like this
one are insufficient to establish an inference of pretext. See Mayfield v. Patterson
Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996). As noted, Chase tried to
accommodate Anderson’s asthma for six months before it terminated her.
In sum, Anderson failed to carry her burden of showing a reasonable
accommodation that would allow her to perform the essential functions of her job
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or of proving that she was fired because of a retaliatory motive instead of for
refusing to come to work. So, the district court correctly granted summary
judgment to Chase.
AFFIRMED.
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