SELECTED 11th CIRCUIT COURT OF APPEALS ADA/504 CASES
Cases highlited in blue are linked to the actual decision in Findlaw

Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269 (6/2006) Assuming arguendo that the evidence proffered by appellants did satisfy their burden of production for barrier removal, we conclude that the district court’s grant of summary judgment would still be appropriate because The Fox rebutted any showing by establishing that removal of the alleged barriers could not be accomplished without much difficulty or expense. The Fox presented undisputed evidence that lowering a portion of the floor, as appellants proposed, would directly affect the historic nature of the theater; the actual seating configuration in the theater is a character-defining feature of The Fox, and the permanent removal of seats would require the approval of the State Historic Preservation Officer; the floor that would be affected by appellants’ proposals is historically significant; the implementation of certain of appellants’ proposals would involve closing the theater for a period of time; the appellants’ proposals would result in the elimination of seats belonging to season ticket holders; and a decrease in the number of regular theater seats would directly impact The Fox’s ability to compete with other venues, possibly resulting in lost revenue. Therefore, The Fox satisfied its burden of persuasion, proving that barrier removal was not “readily achievable."

Miller v. King, 449 F.3d 1149 (5/2006) Miller’s Complaint essentially makes the following claims against the defendants: (1) that there is no room in his small cell for him to maneuver his wheelchair, making him immobile and restrained for extended periods of time and that this problem is exacerbated by GSP staff’s failure to remove his bed from his cell daily, as prison policy requires for wheelchair-bound inmates; (2) that the showers and toilets in the K-Building are not wheelchair-accessible, that he has been denied the opportunity to bathe regularly and to obtain basic hygiene, and that GSP staff have not provided him necessary urine catheters or assistance in using portable toilets, resulting in Miller’s urination and defecation on himself; and (3) that GSP officials and staff have ignored his medical complaints, failed to provide him with rudimentary medical devices required for his paraplegic condition, including leg braces, orthopedic shoes, a wheelchair-accessible van, and wheelchair repairs, and failed to provide him with required medical care, including physical therapy, occupational therapy, and medical evaluation for his spinal condition, resulting in bed sores, serious atrophy, and deterioration of his spinal condition. As additional ADA claims, Miller asserts that he has been denied basic privileges provided to able-bodied inmates in isolation, including removal from isolation for one day after each thirty-day isolation period, and participation in “yard call” and “gym call” during each such removal day. Miller alleges that GSP officials and staff, including Warden Sikes personally, were aware of his paraplegic condition, the inhumane conditions of his confinement and his serious medical needs, and were deliberately indifferent to those conditions and needs. On these bases, Miller seeks monetary damages and injunctive relief under § 1983 and Title II of the ADA. While a prison’s unique needs may impact what is reasonable, it is still clear that the ADA affects far more stateprison conduct and far more prison services, programs, and activities than the Eighth Amendment. Simply put, to uphold Title II’s application to state prisons would allow Congress to “rewrite” the Eighth-Amendment law. See Garrett, 531 U.S. at 374, 121 S. Ct. at 968. Therefore, Title II of the ADA, as applied in this prison case, does not validly abrogate the States’ sovereign immunity and cannot be enforced against the State of Georgia or the GDOC in a suit for monetary damages.

Slomcenski v. Citibank, N.A., 432 F.3d 1271 (12/2005) Slomcenski could not have been considered a qualified individual with a disability when Citibank attempted to enforce the mental or nervous disorder limitation provision against her in January 2002 because her claim for LTD benefits was premised on her representation that she was unable to perform every occupation for which she was qualified or could become qualified. because the district court properly concluded that Slomcenski was not a “qualified individual with a disability” under the ADA, the that she was a qualified individual with a disability as required to bring a claim under the ADA, the district court properly granted summary judgment in favor of Citibank on Slomcenski’s ADA claim.

D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220 (8/2005) Appellant Cris D'Angelo, who suffers from vertigo, sued her former employer, ConAgra Foods, Inc., ("ConAgra") arguing that she was terminated from her job as a product transporter on the basis of a disability, in violation of Title I of the Americans with Disabilities Act (ADA). D'Angelo maintains that she is disabled under the ADA both because she suffers from an impairment -- her vertigo condition -- that substantially limits her ability to perform the major life function of working, and because her employer regarded her as suffering from such an impairment. The district court granted summary judgment for ConAgra on both issues. We now affirm as to the former, since D'Angelo's vertigo prevents her only from holding a narrow category of jobs and thus does not substantially impair her ability to work. We reverse, however, as to D'Angelo's claim that she was regarded as having such an impairment. There are genuine issues of material fact concerning whether ConAgra regarded D'Angelo as disabled and whether she was able to perform the essential functions of her job in spite of her vertigo condition. Moreover, we conclude that the ADA, by its plain language, requires employers to provide reasonable accommodations for employees they regard as disabled. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Cordoba v. Dillard's, Inc.,419 F.3d 1169, (8/2005) If Dillard's is, in fact, correct that it absolutely could not have gotten heard on an early motion for summary judgment - that is, that the district judge has a per se rule against timely consideration of such motions - and, for that reason, Dillard's did not make such a motion, then the district judge's rigid way of disposing of cases caused much unnecessary discovery and expense. This case thus illustrates that such a rigid practice inevitably undermines several of the purposes of Rule 56, such as "to prevent vexation and delay, improve the machinery of justice, promote the expeditious disposition of cases." See 10A Charles Alan Wright et al., Federal Practice and Procedure § 2712 (2d ed. 2002)(footnotes omitted). But if, as we think is more likely, the district judge is somewhat more flexible than Dillard's represented at oral argument, then the unnecessary cost and expense is attributable instead to Dillard's failure to move for summary judgment on the knowledge issue as soon as was practical—whether because it misjudged the district judge's likely response to such a motion or because Dillard's itself did not perceive Cordoba's claims to have been as frivolous as it now argues they were. For the foregoing reasons, the judgment of the district court requiring Cordoba to pay Dillard's $10,000 in attorney's fees and expenses, and requiring Dempsey to pay Dillard's $191,339.95 in attorney's fees and expenses is REVERSED.

Collado v. United Parcel Service, Co., 419 F.3d 1143 (8/2005) There is no evidence that UPS regarded Collado as substantially limited from any job other than that of full-time driver at UPS, much less from a class or broad range of jobs. UPS gave Collado several different positions after pulling him from the full-time driving position. In fact, Collado currently works at UPS in a position where he pre-loads in the morning and drives an unregulated truck in the afternoon. No jury reasonably could find that UPS regarded Collado asvsubstantially impaired from the major life activity of working. vNor does the evidence support Collado's contention that UPS regarded him as substantially impaired in driving, which he contends is a major life activity. In any event, we have held that driving is not a major life activity for purposes of the ADA. See Chenoweth v. Hillsborough County, 250 F.3d 1328, 1329 (11th Cir. 2001) (noting that, while the enumeration of major life activities in the EEOC regulations is not exhaustive, "driving is not only absent from the list but is conspicuously different in character from the activities that are listed"). Because Collado failed to provide sufficient evidence for a jury reasonably to find that he suffered from a "disability" within the meaning of that term as it is defined in the ADA, § 12102(2)(A)–(C), judgment as a matter of law was due to be granted to UPS on the ADA discrimination claim. The grant of the Rule 50(b) motion and the resulting judgment for UPS on that claim will be affirmed

Association for Disabled Americans, Inc. v. Florida Intern. University, --- F.3d --- (4/2005) The issue presented in this case is whether the Eleventh Amendment prevents a disabled person from suing a state university under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ("Title II of the ADA"). Discrimination against disabled students in education affects disabled persons' future ability to exercise and participate in the most basic rights and responsibilities of citizenship, such as voting and participation in public programs and services. The relief available under Title II of the ADA is congruent and proportional to the injury and the means adopted to remedy the injury. III. CONCLUSIONFor the foregoing reasons, we REVERSE the district court's grant of FIU's motion to dismiss based on Eleventh Amendment immunity and REMAND the case for further proceedings consistent with this opinion.

Higdon v. Jackson,393 F.3d 1211 (12/2004)  The main issue presented in this appeal is whether Debra Janine Higdon can establish a prima facie case of retaliation against two employees of the State of Georgia because, months after Higdon complained of disability discrimination, the first employee treated Higdon rudely and the second employee bumped her car into Higdon's car, but caused no damage and had no exchange of words. Because Higdon failed to establish that the first employee's rude behavior was an adverse action and Higdon failed to show a causal relation between the car bumping by the second employee and Higdon's complaint of discrimination, Higdon cannot establish a prima facie case of retaliation under the Americans with Disabilities Act. We affirm the summary judgment entered against Higdon's retaliation claim, and we affirm the summary judgment entered against her claims under state law.

Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324 (9/2004) The question raised before the district court-- whether a web site is a place of public accommodation covered by Title III--is a question of substantial public interest, because it concerns the application of one of the landmark civil rights statutes in the country to a major new form of media that has only gained wide use in the past decade. However, the plaintiffs' argument before this Court that Southwest.com is covered by Title III because of its "nexus" with Southwest Airlines' "travel service" is narrower, and complicated by the specific exemption that Title III gives to airlines. Because of the special exemption Congress has given to the airlines, but not to other forms of public transportation (or to the numerous other forms of public accommodation listed in Title III), any ruling we would make would likely be inapplicable to any future cases other than to challenges of airline web sites. And this case would shed little light even on Title III challenges to other airline web sites, because our ruling would necessarily be based on facts specific to the physical places owned and operated by Southwest Airlines. Accordingly, we are constrained to conclude that this case is not one of the "exceptional" ones in which we should elect to entertain a new theory and argument never raised in the district court. Indeed, to evaluate it now, without the benefit of any record or district court ruling, invites disaster for an appellate court. In declining to evaluate the merits of this case, we are in no way unmindful that the legal questions raised are significant. The Internet is transforming our economy and culture, and the question whether it is covered by the ADA--one of the landmark civil rights laws in this country--is of substantial public importance. Title III's applicability to web sites--either because web sites are themselves places of public accommodation or because they have a sufficient nexus to such physical places of public accommodation--is a matter of first impression before this Court. Unfortunately, this case does not provide the proper vehicle for answering these questions. Thus, as we see it, there are no substantive questions properly before us. We will not address a claim that has been abandoned on appeal or one that is being raised for the first time on appeal, without any special conditions. Accordingly, we must dismiss this appeal.

Miller v. King, 384 F.3d 1248 (9/2004)  Plaintiff Tracy Miller ("Miller"), a paraplegic state prisoner, appeals the grant of summary judgment on his Eighth-Amendment claims brought under 42 U.S.C. § 1983 and his disability-discrimination claims brought under Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12165 ("ADA"). After review and oral argument, we reverse as to Miller's: (1) Eighth-Amendment claims under § 1983 for monetary damages against defendant Sikes in his individual capacity; (2) Eighth-Amendment claims under § 1983 for injunctive relief against defendant Sikes in his official capacity; and (3) ADA claims for injunctive relief against defendant Sikes in his official capacity. We affirm as to Miller's ADA claims for monetary damages as to all defendants and as to all other claims against all defendants. Miller is a paraplegic, wheelchair-bound inmate at Georgia State Prison ("GSP") in Reidsville, Georgia. Miller suffers from complete paralysis in his right leg, partial paralysis in his left leg, and a neurogenic bladder condition that causes urinary incontinence. At GSP, Miller is housed in disciplinary isolation in the "K-Building," which is designated a "high maximum" security section of the prison. As a result of more than 180 disciplinary reports, Miller has been held in isolation in the K-Building since at least 1998, and is due to remain in isolation for a total of more than eight years. Able-bodied inmates in disciplinary isolation are housed in less stringent units than the "high maximum" security K-Building. Because K-Building cells are so small and not accommodated for the wheelchair-bound, prison policy calls for beds to be removed daily so that the wheelchair-bound inmates have some minimal area within which to move around their cells.

Troiano v. Supervisor of Elections in Palm Beach County, Fla. 382 F.3d 1276 (9/2004)The plaintiffs in this case represent visually impaired registered voters in Palm Beach County, Florida who sued Theresa LePore, Supervisor of Elections for Palm Beach County, under federal and state law in the United States District Court for the Southern District of Florida, for the County's failure to make available audio components in voting booths to assist persons who are blind or visually impaired.The district court entered summary judgment in favor of LePore, finding that the plaintiffs did not have standing to assert their claims and that their claims were also moot. After thorough review, we agree that the case is moot, because, on this record, the requested audio components have been furnished by the defendant and will be available in all the County's voting precincts in upcoming elections. Accordingly, we affirm the dismissal of the cause for lack of subject matter jurisdiction.

National Alliance for Mentally Ill, St. Johns Inc. v. Board of County Com'rs of St. Johns County, 376 F.3d 1292 (7/2004) Unfortunately for NAMI-St. Johns and NAMI-Jax, they have not shown that any of their members had standing to sue. The only constituents NAMI-St. John's and NAMI-Jax mention in their brief are O'Hearn and A.A., and neither of them has been injured. NAMI-St. Johns and NAMI-Jax blame their failure to identify any other injured constituents on the Board. According to them, the Board had sole possession of the identities of individual patients. The district court analyzed this assertion and correctly rejected it. As the district court explained, the Board provided NAMI-St Johns and NAMI-Jax with information pertaining to persons who were eligible for treatment when it tendered discovery materials from the director of the Mental Health Department, Dr. Kenneth Robertson. NAMI-St Johns and NAMI-Jax could have used those materials to ascertain the identities of injured constituents. They did not do so. NAMI-St Johns and NAMI-Jax failure to identify an injured constituent prevents them from asserting associational standing. See Arizonans for Official English v. Arizona, 520 U.S. 43, 66, 117 S.Ct. 1055, 1068, 137 L.Ed.2d 170 (1997)("An association has standing to sue or defend in such capacity, however, only if its members would have standing in their own right.") (citations omitted); Doe v. Stincer, 175 F.3d 879, 886 (11th Cir.1999)(the right of an association to sue on behalf of its constituents does not relieve it of its obligation to show that one of its constituents otherwise had standing to sue).

Rossbach v. City of Miami, 371 F.3d 1354 (6/2004) We are persuaded by these decisions, and hold that "police officer" is too narrow a range of jobs to constitute a "class of jobs" as that term is defined in the EEOC regulations. We believe this ruling is dictated by our Court's earlier decision in Witter that piloting airplanes is not a broad range of jobs in the context of ADA litigation. Witter, 138 F.3d at 1369-70. Accordingly, we affirm the district court's finding that Rossbach and his fellow officers failed to show that each was disabled under the ADA.

Cleveland v. Home Shopping Network, Inc., --- F.3d --- (5/2004) We REVERSE the district court's grant of judgment as a matter of law to HSN because there was a sufficient evidentiary basis for the jury to conclude that Cleveland was terminated because of her disability

Carruthers v. BSA Advertising, Inc., 357 F.3d 1213 (1/2004) Because no reasonable juror could conclude that Carruthers was disabled, the district court did not err in granting BSA's motion for judgment as a matter of law. Because Carruthers filed her motion for leave to amend her first amended complaint after the discovery deadline and after the close of pleadings, without adequately justifying the delay, the district court did not abuse its discretion in denying it.

Garrett v. University of Alabama at Birmingham Bd. of Trustees, 344 F.3d 1288 (9/2003)   Patricia Garrett, Milton Ash and Joseph Stephenson (collectively "Appellants") are residents of Alabama who suffer from disabilities. In separate civil actions in the Northern District of Alabama, they sued their former employers, the Board of Trustees of the University of Alabama in Birmingham (UAB) (Garrett), the Alabama Department of Youth Services (ADYS) (Ash), and the Alabama Department of Corrections (Stephenson) (collectively "the state agencies"), under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The state agencies moved for summary judgment based on their Eleventh Amendment immunity. Appellants responded that the state agencies, which all receive federal funds, waived their Eleventh Amendment immunity to claims under section 504 of the Rehabilitation Act. The district court determined that the state agencies were immune from suit and granted summary judgment dismissing Appellants' claims. Because the state agencies have waived their Eleventh Amendment immunity by accepting federal funds, we VACATE the district court's judgment and REMAND the cases for further proceedings.

Shotz v. City of Plantation, Fla., 344 F.3d 1161 (9/2003)  The Americans with Disabilities Act, § 503, 42 U.S.C. § 12203 (1995) ("ADA" or "the Act"), prohibits retaliation against an individual who has "opposed any act or practice made unlawful by" the Act's anti-discrimination provisions. Part A of Subchapter II of the Act, 42 U.S.C. § 12131-12134, generally makes disability discrimination in the provision of public services unlawful. As a matter of first impression, we decide that § 12203 establishes individual liability for a violation of its prohibitions, where the "act or practice" opposed is one made unlawful by Subchapter II. We also decide that releasing personal information to the media, gained after a public entity regulated by Subchapter II has retained a private investigator to conduct a comprehensive background check, is adverse action for the purpose of establishing a prima facie case of retaliation. In light of these decisions, we REVERSE the district court's order granting summary judgment to some of the individual defendants on the ADA retaliation claim, and REMAND for further consideration consonant with this opinion.

Wood v. Green, 323 F.3d 1309 (3/2003) Green created Wood's new position to accommodate Wood's absences from work. In addition, Green previously granted Wood indefinite leaves of absence to deal with his cluster headaches. However, prior accommodations do not make an accommodation reasonable. Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1528 (11th Cir. 1997). Furthermore, Wood's absenteeism had been increasing before his termination. Wood was requesting an accommodation of indefinite leaves of absence so that he could work at some uncertain point in the future. Wood's requested accommodation was not reasonable. See Duckett, 120 F.3d at 1226. The ADA covers people who can perform the essential functions of their jobs presently or in the immediate future. Id. As a result, we conclude from the record that Wood was not a qualified individual under the ADA. Therefore, the district court erred in denying Green's motion for judgment as a matter of law. Because of our disposition of the first issue presented in this appeal, we need not reach the remaining issues. Based on our foregoing discussion, we reverse the district court's order denying Green's motion for judgment as a matter of law and render judgment in favor of Green

Williams v. Motorola, Inc., 303 F.3d 1284 (8/2002)  Melanie Williams brought this action against Defendants Motorola, Inc., and several individuals. Her Amended Complaint contained thirteen counts and alleged federal claims under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), codified at 29 U.S.C. §§ 1160 et seq., the Employment Retirement Income Security Act of 1974 ("ERISA"), codified at 29 U.S.C. §§ 1001 et seq., Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, codified at 42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act ("ADA"), codified at 42 U.S.C. §§ 12101 et seq., as well as various state law claims. Following a complicated procedural history which we detail within, the District Court awarded nominal damages of one dollar to Williams against Motorola after dismissing most of her claims on motions for judgment as a matter of law. Both Williams and Motorola appeal different aspects of the District Court's orders. We will remand this matter to the District Court with the instruction to vacate its Judgment of one dollar nominal damages and to dismiss Williams' case with prejudice.

Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (6/2002)  The complaint alleges that Valleycrest Productions Limited ("Valleycrest") and the American Broadcasting Network, Inc. ("ABC") (collectively "Defendants") violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12181 et seq., by operating a telephone selection process that screened out disabled individuals who wished to be contestants on the show "Who Wants To Be A Millionaire" ("Millionaire"). The district court dismissed Plaintiffs' complaint upon finding that, because the automated telephone contestant selection process was not conducted at a physical location, it was not a place of "public accommodation" under the ADA. Plaintiffs now appeal. For the reasons discussed below, we conclude that Plaintiffs state a valid Title III claim in alleging that the contestant hotline was a discriminatory procedure that screened out disabled persons aspiring to compete on Millionaire, a place of public accommodation. We therefore REVERSE and remand.

Weeks v. Harden Mfg. Corp., 291 F.3d 1307 (5/2002) the court was asked to determine whether an employee's refusal to agree to a compulsory arbitration provision regarding employment discrimination claims constituted protected activity for the purposes of alleging a prima facie case of retaliation. We find that it does not.

Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275 (12/2001)  Spencer Waddell appeals the district court's order granting summary judgment to the defendant, Valley Forge Dental Associates, Inc., on his discrimination claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act, 29 U.S.C. § 701 et seq. This case requires us to decide whether the district court properly held that Waddell, an HIV-positive dental hygienist, was not otherwise qualified for his employment position because he posed a direct threat to his patients. We AFFIRM.

Johnson v. K Mart Corp., 273 F.3d 1035 (11/2001)  whether a former employee-as against a current employee or an applicant-is eligible to file suit under 42 U.S.C. § 12112(a), which makes it unlawful to "discriminate [with respect to employment] against a qualified individual with a disability because of the disability of such individual . . . ." This court has previously-over strong dissent-answered the question in the negative. See Gonzales v. Garner Food Services, Inc., 89 F.3d 1523 (11^th Cir. 1996), reh'g denied, 104 F.3d 373 (11^th Cir. 1996), cert. denied, 520 U.S. 1229 (1997). Herein we revisit this question in light of the principles set forth in a subsequent Supreme Court opinion, Robinson v. Shell Oil Co., 519 U.S. 337 (1997), which addressed the same question as it arose under a cognate statute, Title VII of the Civil Rights Act of 1964, answering the question in the affirmative. In our judgment, Robinson mandates the conclusion that Gonzales is no longer good law and must be deemed overruled. Accordingly, appellant is eligible to file suit under Title I.    We conclude that McMann and Betts make clear that if K Mart adopted the policy of providing differing long-term disability benefits for mental and physical disabilities prior to the enactment of the ADA, K Mart could not be found to be using § 12201(c) as a subterfuge to evade the purposes of the Act. If, however, K Mart adopted the mental health cap following the passage of the ADA, then appellant, in order to impose liability on K Mart, would have to establish that K Mart, in setting a 24- month cap on mental health disability benefits, specifically intended to use § 12201(c) as a subterfuge to evade the purposes of Title I.

Wascura v. City of South Miami, 257 F.3d 1238 (7/2001)  Viewing the record as a whole, we conclude that Wascura has failed to come forward with sufficient evidence to convince a reasonable jury that the City's proffered reasons for terminating Wascura were pretext for discrimination. Accordingly, we affirm the district court's order granting summary judgment to the City on Wascura's ADA claim.

Lucas v. W.W. Grainger, Ivc., 257 F.3d 1249 (7/2001)  William Lucas appeals the district court's grant of summary judgment in favor of W.W. Grainger, Inc. on his claims under the Americans with Disabilities Act. He contends the district court erred in concluding that he was not disabled within the meaning of the statute. He also contends the district court erred in concluding Grainger did not unlawfully retaliate against him for engaging in statutorily protected expression. On our way to affirming the district court's judgment, we address a number of issues about what constitutes reasonable accommodation and a few relating to retaliation.

Shotz v. Cates, 256 F.3d 1007 (7/2001)  The plaintiffs, who allege that architectural barriers impede their attendance at trials held in the Levy County Courthouse, have stated a cause of action under Title II of the Americans with Disabilities Act. The plaintiffs, however, do not have standing to seek injunctive relief because they have not alleged an immediate and real threat of future injury. Accordingly, the district court properly granted defendants' motion to dismiss.

Chenoweth v. Hillsborough County, 250 F.3d 1328 (5/2001)  Charlotte J. Chenoweth appeals the judgment of the district court for the middle district of Florida. The principal issue on this appeal is whether inability to drive to work for six months qualifies as an impairment substantially limiting a major life activity under the Americans with Disabilities Act, 42 U.S.C. § 12102(2)(A) (the ADA) or under the Rehabilitation Act, 29 U.S.C. § 794. Recognizing that many Americans do drive to work and that in rural areas public transportation may sometimes not be available when needed, we nonetheless hold that such inability does not qualify under either act, and we therefore affirm the summary judgment granted by the district court.

Lowe v. Alabama Power. Co., 245 F.3d 1305 (3/2001) Douglas Lowe appeals the district court's grant of summary judgment to Alabama Power Company in his suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., for discrimination, failure to accommodate and retaliation. Lowe urges us to reverse our holding in Moses v. American Nonwovens, Inc., 97 F.3d 446 (11th Cir.1996), in which we determined that "[t]he employee retains at all times the burden of persuading the jury either that he was not a direct threat or that reasonable accommodations were available." Id. at 447. He also argues that 29 C.F.R. § 1630.2(r), which defines a direct threat as "a significant risk of substantial harm to the health or safety of the individual or others," impermissibly broadens the definition provided by statute because it includes a risk of injury to the disabled employee as well as to others. We need not address these issues, however, because, since Alabama Power's company physician did not base his decision to restrict Lowe's work activity on a timely, particularized assessment of Lowe's capabilities, summary judgment was improperly granted. Accordingly, we REVERSE and REMAND.

Durley v. APAC, Inc., 236 F.3d 651 (12/2000)  The burden of proof for an ADA claim is also based on the framework set forth in McDonnell Douglas Corp. See 411 U.S. at 802, 93 S. Ct. at 1824. In order to establish a prima facie ADA violation, Durley must demonstrate that she is a qualified individual with a disability and was discriminated against because of that disability. Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998). In order to meet the definition of disabled, Durley must show that she was substantially limited in a major life activity as a result of a physical or mental impairment. 42 U.S.C. § 12102(2). Durley argues that she is limited in the major life activity of working as a result of her CFS. Her own testimony, however, defeats her claim. Durley testified that, even when her condition was allegedly being aggravated by work-related stress, she "was able to perform the job . . . The work got done always." Durley Depo. at 208-09. The district judge properly found that Durley was not disabled within the meaning of the statute at the time of the alleged failure to promote, and summary judgment on the ADA claim was appropriate.

Chanda v. Engelhard/ICC, 234 F.3d 1219 (12/2000)  Summary judgment on Chanda's disability claim was appropriate because Chanda failed to present sufficient evidence such that a reasonable jury could find him disabled under the ADA.

Maynard v. Pneumatic Products Corp., 233 F.3d 1344 (11/2000)  An ADA complainant who alleges that an impairment significantly restricts the performance of a major life activity must present some evidence of how well the average person in the general population performs the major life activity in question. The ADA requires this comparator evidence. Since Maynard failed to present such comparator evidence, the district court properly granted Pneumatic judgment as a matter of law.

Cash v. Smith, 231 F.3d 1301 (11/2000)  Cash did not present any evidence that she suffered from a disability as that term is defined by the ADA and the Rehabilitation Act. She has therefore failed to establish a prima facie case under these statutes, and the district court was correct in granting APCO's motion for summary judgment on these counts.

Mullins v. Crowell, 228 F.3d 1305 (9/2000)  The district court noted the Supreme Court's "reticence" to conclude that working is a "major life activity" under the Americans with Disabilities Act (ADA) in Sutton. But the Supreme Court did not hold that working was not a "major life activity." Accordingly, our precedent treating working as a "major life activity" is still valid, and the district court erred by interpreting the Act contrary to our precedent. See, e.g., Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 (11th Cir. 1998) (addressing whether a plaintiff was substantially limited in the "major life activity" of working and quoting 29 C.F.R. § 1630.2(i)'s definition of "major life activity" that includes "working").

Stevens v. Premier Cruises, Inc., 215 F.3d 1237 (2000)  The district court erred in concluding that Title III of the ADA, as a matter of law, does not apply at all to foreign-flag cruise ships sailing in United States waters. The district court, accordingly, erred in dismissing Plaintiff's complaint for failure to state a claim. As such, Plaintiff's proffered, amended complaint would not have been futile, and the district court should have granted Plaintiff leave to amend her complaint and to plead properly her standing to pursue injunctive relief.

Earl v. Mervyns, Inc., 207 F.3d 1361 (2000)  Appellant was unable to perform the essential functions of her job as Store Area Coordinator, with or without a reasonable accommodation. Appellant is therefore not a "qualified individual" under the ADA. In addition, Appellee did not terminate Appellant because of her engagement in a protected activity. Accordingly, the district court properly granted summary judgment in favor of Appellee on Appellant's ADA and FMLA claims.

Reed v. Heil Co., 206 F.3d 1055 (2000)  Reed's ADA claim, however, was properly before the district court. Summary judgment for the defendant on this claim was appropriate because Reed did not establish one of the elements of a prima facie case under the ADA, namely that he was a "qualified individual," able to perform the essential tasks of any available job at Heil with or without reasonable accommodation

Davis v. Florida Power & Light Co., 205 F.3d 1301 (2000)  Plaintiff Marvin Davis ("Davis") appeals the entry of judgment for Defendant Florida Power & Light Company ("FPL") on his employment discrimination claims under the American with Disabilities Act of 1990 ("ADA"). After review, we affirm the district court's determination that Davis failed to establish a prima facie case of disability discrimination for two reasons. First, FPL's mandatory overtime work was an essential function of Davis's job of reconnecting electrical power service for FPL's customers. Davis was not a qualified individual protected by the ADA because he could not work the overtime FPL required. Second, Davis's requested accommodations of no or selective overtime work contravened the seniority provisions of his union's collective bargaining agreement and were unreasonable accommodations as a matter of law.

Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322 (1999)  we find that the magistrate court did not plainly err in its jury instructions or verdict form, nor abuse its discretion in remitting Farley's compensatory damages to the maximum allowed by statute. We also conclude that the magistrate court did not abuse its discretion in awarding front pay in lieu of reinstatement, precluding frontpay from its liquidated damages award, or awarding attorney's fees to the prevailing party. However, we conclude that the magistrate court did err in granting summary judgment on Plaintiff's retaliation claims

Watson v. City of Miami Beach, 177 F.3d 932 (1999)  Appellant William Watson, a police officer for the City of Miami Beach (the City), brought this action against his employer under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Watson challenges the district court's grant of summary judgment in favor of the City on his claims that: (1) the City discriminated against him by relieving him from duty pending a fitness for duty examination; (2) the City violated the ADA's medical examination and inquiries prohibitions by ordering him to complete a fitness for duty examination; and (3) the City violated the ADA's medical examination and inquiries prohibitions by requiring him to undergo a tuberculosis examination and disclose his HIV/AIDS status as part of a mandatory department-wide tuberculosis testing program.   As to the first claim, the district court reasoned Watson failed to present sufficient evidence to show he was an individual with a disability within the meaning of the Act. As to the second and third claims, the court reasoned Watson failed to present evidence from which a reasonable juror could reject the City's evidence that the fitness for duty and tuberculosis examinations were job-related and consistent with business necessity. We affirm.

Onishea v. Hopper, 171 F.3d 1289 (1999)  The plaintiff class, all of whom are prison inmates who have tested positive for the Human Immunodeficiency Virus (HIV), have sued officials of the Alabama Department of Corrections under § 504 of the Rehabilitation Act to force integration of prison recreational, religious, and educational programs. The district court denied relief, and we affirm.

Hilburn v. Murata Electronics North America, Inc., 181 F.3d 1220 (1999)  The Appellant, Linda Hilburn, appeals from the granting of a summary judgment in favor of the Appellee, Murata Electronics North America, Inc. (Murata), on her claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Hilburn v. Murata Elecs. N. Am., 17 F.Supp.2d 1377 (N.D.Ga.1998). Hilburn alleges that Murata (1) failed to promote or transfer her, (2) wrongfully terminated her employment, and (3) declined to rehire her because of her disability or the disabilities of her family. The trial court found that Hilburn had not created a genuine issue of a material fact concerning whether she, her son, or husband were disabled within the meaning of the ADA. It also concluded that Hilburn was not qualified for the positions that she sought to obtain due to a record of extensive absences from work that had been occasioned by her own health problems and those of her family. For the reasons that have been set forth below, we affirm

Chapman v. AI Transport, 180 F.3d 1244 (1999)  Following a nearly two-week trial, the jury found both that travel constituted an essential function of Chapman's job as SIR Manager and that his refusal to engage in business travel was not based on a disability that was known or should have been known to his employer

Sutton v. Lader, 185 F.3d 1203 (1999)  Sutton has failed to make a prima facie case of employment discrimination under the Rehabilitation Act because there was insufficient evidence that the SBA perceived him as a disabled person or that he was "otherwise qualified" for the position of construction analyst during the relevant time frame.

Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361 (1999).  In this case, Gaston did not request a reasonable accommodation after Ms. Wyas, her manager, informed her about the new job requirements of a gift shop cashier. Instead, she simply told Ms. Wyas that she knew Gaston could not meet those requirements and then resigned without explanation approximately three weeks later. Gaston's failure to demand a reasonable accommodation after being shown the new job requirements is fatal to her ability to prevail on her claim that Bellingrath Gardens discriminated against her by failing to provide a reasonable accommodation.

Berg v. Florida Dept. of Labor and Employment Sec., Div. of Vocational Rehabilitation, 163 F.3d 1251 (1998).  We add only the observation that the laws in this country directed towards ending discrimination against people with disabilities are designed not to provide a disabled person with benefits because of his or her disability (except when the law authorizes an affirmative action program to correct past injustice), but to eliminate unfair burdens imposed only on those with disabilities. See Kornblau v. Dade County , 86 F.3d 193, 194 (11 ^th Cir. 1996) ("The purpose of the [Americans with Disabilities Act] is to place those with disabilities on an equal footing, not to give them an unfair advantage."). Section 504 does not entitle Berg to a free legal education, see Johnson v. Thompson , 971 F.2d 1487, 1494 (10 ^th Cir. 1992) (stating that § 504 "does not create any absolute substantive right" to the benefits sought by a disabled person); it only provides him with the right to enjoy access to that education as if he were non-disabled. Although Berg may be unable to finance his education without assistance, that inability is due to Berg's lack of funds, not to discrimination based on the fact that he is disabled. He may not, therefore, use section 504 of the Rehabilitation Act as a vehicle to obtain those funds from the DVR.

Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318 (1998).  Given the tentative nature of Morgan's alleged statement, her position relative to Standard's employment, and the evidence that all of the decision makers perceived Standard as having a temporary injury, we hold that Standard has failed to present sufficient evidence to allow a rational juror to find him disabled under § 12102(2)(C) of the ADA. We must, therefore, affirm the district court's grant of summary judgement for defendants on the ADA wrongful termination claim.

Doe v. Dekalb County School Dist., 145 F.3d 1441 (1998).  We review in this case an injunction under the ADA that prohibits the School District from transferring Doe out of the District's psychoeducation program because of his infection with HIV. To establish a prima facie case under the ADA, Doe must prove that he has a disability; that he is otherwise qualified to teach psychoeducation, with or without some reasonable accommodation; and that he has suffered an adverse employment action because of his HIV status ( i.e. , that the School District has discriminated against him because of his disability).  To determine whether Doe is qualified, the district court should have found and weighed the four factors explained in Arline . The district court, however, failed to make explicit findings of fact regarding any dangers that Doe's illness might pose to violent psychoeducation students. In addition, the district court erred by applying a subjective standard for determining whether Doe's transfer was adverse. Moreover, because the district court did not enter explicit findings of fact or conclusions of law with regard to those aspects of Doe's transfer that might render it objectively adverse, we believe that it would be imprudent for us to attempt to assess whether the School District subjected Doe to an adverse employment action.   Therefore, we REVERSE the district court's judgment, VACATE the injunction, and REMAND the case to the district court for further proceedings consistent with this opinion

Swain v. Hillsborough County School Bd., 146 F.3d 855 (1998). Not only does the record contain no evidence to support Swain's argument, but Swain's own testimony and employment record belie any claim that she cannot perform a broad range or class of jobs that individuals of similar skill, ability, and training can perform. Prior to the events leading to her retirement, Swain worked as a teacher and administrator for nearly 30 years, including 8 years as a teacher in the GED day program at Jefferson and Plant City. During that period, Swain's ability to work was unaffected by her impairments. No evidence suggests that Swain's ailments worsened at any time relevant to this action. Moreover, Swain acknowledged in her deposition that she could return to teaching. In sum, Swain's proffered evidence does not create an issue of material fact concerning her inability to perform a broad class of jobs due to her physical ailments.  We conclude that Swain does not have a disability under the ADA.

L.C. by Zimring v. Olmstead, 138 F.3d 893 (1998).  In granting summary judgment in favor of L.C. and E.W., the district court declared that the State's failure to place them in an appropriate community-based treatment program, instead confining them at the state hospital, violates the anti-discrimination provision of Title II of the ADA, 42 U.S.C. § 12132, and its accompanying regulations. The district court enjoined the State from violating plaintiffs' rights under the ADA, determined that the denial of community placements could not be justified by the State's purported lack of funds, and ordered the State to release E.W. to an appropriate community-based treatment program and to provide L.C. with all appropriate services necessary to maintain her current placement in a community-based treatment program.  We affirm the district court's judgment that the State discriminated against L.C. and E.W. by confining them in a segregated institution rather than in an integrated community-based program. However, we remand this case to the district court for further findings related to the State's defense that the relief sought by plaintiffs would "fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7)

Onishea v. Hopper, 126 F.3d 1323 (1997).  The Alabama Department of Corrections ("DOC") prohibits inmates who test positive for the Human Immunodeficiency Virus ("HIV") from participating in most of the educational, vocational, rehabilitative, religious, and recreational programs offered in state prisons. The appellant class, which consists of Alabama inmates who are HIV-positive ("HIV+" or "seropositive"), claims that excluding HIV+ prisoners from these programs violates the Rehabilitation Act of 1973 Section 504, 29 U.S.C. § 794 ("section 504" or "the Act"). A prior panel of this court, on an appeal by these appellants from a post-trial dismissal of their class action, remanded the section 504 claim "for additional findings and clarification by the district court." Harris v. Thigpen, 941 F.2d 1495, 1528 (11th Cir.1991). On remand, the district court ruled in favor of DOC but failed to comply with the panel's mandate. Accordingly, we again vacate the district court's decision and remand.

Duckett v. Dunlop Tire Corp., 120 F.3d 1222 (1997).  Plaintiff appeals the grant of summary judgment of his Americans with Disabilities Act ("ADA") claim. The district court held that Plaintiff failed to establish that he is an "otherwise qualified individual" within the meaning of the ADA: he was employed by Defendant as a supervisor and was no longer able to supervise. Plaintiff says that he was an otherwise qualified individual because he was qualified to perform other work for Defendant, and his employer was under an obligation to transfer him to another position for which he was qualified. Because we affirm the district court's judgment on other grounds, we decline to rule on this issue. We hold that Plaintiff has failed to present evidence sufficient to establish that Defendant discriminated against him by failing to provide a reasonable accommodation.

Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278 (1997).  Employer adequately accommodated former employee's inability to stand for long periods of time by offering paid break five minutes shorter than her previous break, but not subject to any interruption, unpaid break of up to sixty minutes, shorter work shifts, leave of absence, and planned break time, and (2) former employee failed to establish that she was retaliated against in violation of the ADA.
Affirmed.

Harris v. H & W Contracting Co., 102 F.3d 516 (1996).  The district court granted summary judgment in favor of the Company on the grounds that Harris, who has been diagnosed with and receives ongoing treatment for Graves' disease, cannot show that she has a "disability" within the meaning of the ADA. We reverse, because we find that genuine issues of material fact do exist about whether Harris has a disability within the meaning of the ADA, and there is no other basis in the record for affirming the grant of summary judgment.

Gordon v. E.L. Hamm & Associates, Inc., 100 F.3d 907 (1996).  Because we find that there was insufficient evidence adduced at trial to support the jury's finding that Gordon had a physical or mental impairment that substantially limited one or more of his major life activities or that he was regarded by Hamm as having such an impairment, we conclude that the district court erred in denying Hamm's renewed motion for judgment as a matter of law on the ADA claim. We hold that Gordon did not have a disability under the ADA. Accordingly, he is not entitled to the Act's protections.

Pritchard v. Southern Co. Services, 92 F.3d 1130 (1996).  Pritchard was placed on paid disability leave through November of 1992, and then on unpaid disability leave. This constitutes evidence that Pritchard had a record of being impaired and that SCSI regarded her as being impaired. Again, this evidence creates genuine issues of material fact as to whether Pritchard was disabled under the ADA.   Of course, in order to prevail, Pritchard must not only show that she has a disability, but also that she was discriminated against because of her disability and that she was a qualified individual. See 42 U.S.C. § 12132. The District Court did not rule on these elements in its summary judgment order. We leave the issues open on remand.

Kornblau v. Dade County, 86 F.3d 193 (1996).  The court finds that Dade County is in compliance with section 4.6.2 as it provides accessible parking spaces for the government center on the shortest accessible route of travel. Dade County is also in compliance with section 4.1.2(5)(a). Accordingly, summary judgment in favor of Dade County is appropriate.  In sum, to base a claim on the ADA, plaintiff must first show she was denied a public benefit. She has failed to do that.

Arline v. School Bd. of Nassau County, 772 F.2d 759 (1985).