Page
CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE
STATEMENT. C-1
TABLE OF CONTENTS. i
TABLE OF CITATIONS. iii
STATEMENT OF INTEREST. 1
STATEMENT OF THE ISSUES. 2
STATEMENT OF THE CASE.. 3
A. Factual Background. 3
B. District Court’s Decision. 5
SUMMARY OF ARGUMENT. 7
ARGUMENT. 11
I. Belgrave filed a timely charge of discrimination with
the EEOC. 11
A. Belgrave’s intake questionnaire constitutes a charge of
discrimination. 12
B. Belgrave cured any technical defect by later providing
the required verification. 14
C. This Court’s precedents do not compel a different result. 17
II. Under the correct legal standards, genuine issues of
material fact preclude summary judgment on Belgrave’s discrimination and
retaliation claims. 19
A. Belgrave’s testimony in his workers’ compensation case
does not foreclose his contention that he is a “qualified individual.” 20
B. There are open factual questions about what
accommodations Belgrave requested and whether they were reasonable. 25
C. Belgrave provided evidence that Publix fired him for discriminatory
or retaliatory reasons and that Publix’s proffered reasons for firing him were
pretextual. 30
CONCLUSION.. 34
CERTIFICATE OF COMPLIANCE.. 35
CERTIFICATE OF SERVICE.. 36
Page(s)
Cases
Abram v. Fulton Cnty. Gov’t,
598 F. App’x 672 (11th Cir. 2015)....................... 12
Aly v. Mohegan Council, Boy Scouts of Am.,
711 F.3d 34 (1st Cir. 2013).................................. 16
Barber v. Cellco P’ship,
808 F. App’x 929 (11th Cir. 2020)....................... 31
Basden v. Pro. Transp., Inc.,
714 F.3d 1034 (7th Cir. 2013)............................. 22
Bost v. Fed. Express Corp.,
372 F.3d 1233 (11th Cir. 2004)........................... 17
Brooks v. Midwest Heart Grp.,
655 F.3d 796 (8th Cir. 2011)............................... 16
Burch v. City of Nacogdoches,
174 F.3d 615 (5th Cir. 1999)............................... 26
Byrd v. UPS,
814 F. App’x 536 (11th Cir. 2020)....................... 17
*Cleveland v. Policy Management Systems Corp.,
526 U.S. 795 (1999)..................................... passim
Combs v. Plantation Patterns,
106 F.3d 1519 (11th Cir. 1997)........................... 33
Conner v. Louisiana Dep’t of Health & Hosps.,
247 F. App’x 480 (5th Cir. 2007)......................... 16
Dennis v. Fitzsimons,
850 F. App’x 598 (10th Cir. 2021)....................... 31
Edelman v. Lynchburg College,
300 F.3d 400 (4th Cir. 2002)............................... 15
Edelman v. Lynchburg College,
535 U.S. 106 (2002)............................................. 15
EEOC v. LHC Grp., Inc.,
773 F.3d 688 (5th Cir. 2014)............................... 28
EEOC v. Summer Classics, Inc.,
41 F. Supp. 3d 1287 (N.D. Ala. 2011)................. 18
*EEOC v. Vantage Energy Servs., Inc.,
954 F.3d 749 (5th Cir. 2020)................... 13, 16, 17
Emrit v. Sec’y, U.S. Dep’t of Educ.,
829 F. App’x 474 (11th Cir. 2020)....................... 18
Fatz v. Winn-Dixie Stores, Inc.,
2013 WL 4080330 (M.D. Fla. Aug. 13, 2013)...... 14
*Fed. Express Corp. v. Holowecki,
552 U.S. 389 (2008)..................................... passim
Francois v. Miami Dade Cnty., Port of Miami,
432 F. App’x 819 (11th Cir. 2011)....................... 18
Frazier-White v. Gee,
818 F.3d 1249 (11th Cir. 2016)........................... 19
Hicks-Washington v. Hous. Auth. of City of Fort Lauderdale,
803 F. App’x 295 (11th Cir. 2020)....................... 17
Higdon v. Jackson,
393 F.3d 1211 (11th Cir. 2004)........................... 31
*Hildebrand v. Allegheny Cnty.,
757 F.3d 99 (3d Cir. 2014)................................... 14
*Holly v. Clairson Indus., LLC,
492 F.3d 1247 (11th Cir. 2007)............... 19, 26, 28
Macia v. U.S. Marshals Serv.,
277 F. App’x 914 (11th Cir. 2008)................. 18, 19
Maynard v. Pneumatic Prods. Corp.,
256 F.3d 1259 (11th Cir. 2001)..................... 11, 12
Miller v. Dugger,
838 F.2d 1530 (11th Cir. 1988)..................... 27, 28
Minter v. District of Columbia,
809 F.3d 66 (D.C. Cir. 2015)............................... 22
Pastran v. K-Mart Corp.,
210 F.3d 1201 (10th Cir. 2000)........................... 33
Pijnenburg v. W. Georgia Health Sys., Inc.,
255 F.3d 1304 (11th Cir. 2001)........................... 17
Ray v. McCullough Payne & Haan, LLC,
838 F.3d 1107 (11th Cir. 2016)........................... 18
Rorrer v. City of Stow,
743 F.3d 1025 (6th Cir. 2014)............................. 26
Salley v. Goldston,
727 F. App’x 981 (11th Cir. 2018)....................... 18
Samson v. Fed. Express Corp.,
746 F.3d 1196 (11th Cir. 2014)........................... 19
Schaw v. Habitat for Human. of Citrus Cnty., Inc.,
938 F.3d 1259 (11th Cir. 2019)........................... 27
Shi v. Montgomery,
679 F. App’x 828 (11th Cir. 2017)................. 17, 18
Singleton v. Pub. Health Tr. of Miami-Dade Cnty.,
725 F. App’x 736 (11th Cir. 2018)....................... 31
Sprenger v. Fed. Home Loan Bank of Des Moines,
253 F.3d 1106 (8th Cir. 2001)............................. 31
Stern v. St. Anthony’s Health Ctr.,
788 F.3d 276 (7th Cir. 2015)............................... 28
Supinski v. United Parcel Serv., Inc.,
413 F. App’x 536 (3d Cir. 2011).......................... 26
Thomas v. Montgomery Cnty. Bd. of Educ.,
170 F. App’x 623 (11th Cir. 2006)....................... 19
*Wilcox v. Corrections Corp. of America,
603 F. App’x 862 (11th Cir. 2015)........... 15, 16, 17
Wilkerson v. Grinnell Corp.,
270 F.3d 1314 (11th Cir. 2001)........................... 12
Woodward v. Jim Hudson Luxury Cars, Inc.,
2019 WL 4793058 (S.D. Ga. Sept. 30, 2019)....... 14
Statutes
42 U.S.C. § 12101..................................................... 1
42 U.S.C. § 12111............................................. 20,
26
42 U.S.C. § 12112................................................... 19
42 U.S.C. § 12117............................................... 1,
11
42 U.S.C. § 2000e-5...................................... 1,
12, 14
Rules and Regulations
29 C.F.R. § 1601.12....................................... 8,
15, 16
29 C.F.R. § 1601.3.................................................... 5
29 C.F.R. § 1626.6.................................................. 13
29 C.F.R. § 1630.2............................................ 28,
30
Fed. R. App. P. 29..................................................... 1
Other Authorities
EEOC, Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act,
2002 WL 31994335 (2002).................................. 29
Interpretive Guidance on Title I of the Americans with
Disabilities Act,
29 C.F.R. pt. 1630, app. § 1630.2(m)................... 22
* indicates citations upon which the EEOC primarily relies
Congress tasked the Equal
Employment Opportunity Commission (EEOC) with interpreting, administering, and
enforcing federal laws prohibiting employment discrimination, including Title I
of the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. §§ 12101
et seq. The ADA adopts the powers, remedies, and procedures
of Title VII of the Civil Rights Act of 1964, which requires individuals
to file a timely charge with the EEOC before they may proceed in court. See
42 U.S.C. § 12117(a) (ADA); id. § 2000e-5(e)(1) (Title VII enforcement provision).
In this case, the magistrate
judge determined that the plaintiff’s unverified EEOC intake questionnaire did
not constitute a timely charge of discrimination, that the plaintiff’s
testimony in a separate workers’ compensation case defeated his ADA
discrimination claim, and that the plaintiff’s discrimination and retaliation claims
failed for additional reasons. These issues
raise important questions regarding the interpretation and application of the
ADA’s antidiscrimination and antiretaliation provisions, and the EEOC’s procedural
regulations. Accordingly, the EEOC offers its views. See Fed. R. App. P.
29(a)(2).
1. Whether a plaintiff’s unverified EEOC intake
questionnaire constitutes a timely charge of discrimination where the
questionnaire satisfies the elements of a charge, and the plaintiff later
provides the required verification.
2. Whether the district court erred in granting
summary judgment against the plaintiff on his discrimination and retaliation
claims where the magistrate judge:
(a) incorrectly treated the plaintiff’s testimony in a
workers’ compensation case as dispositive on whether he was a “qualified
individual” capable of performing the essential functions of his job;
(b) did not conduct the proper analysis in assessing the
reasonableness of the accommodation the plaintiff requested, by failing to
consider whether the tasks with which the plaintiff requested help were
essential functions or, instead, marginal duties; and
(c) improperly credited the employer’s proffered
reasons for firing the plaintiff without considering the close temporal
proximity between the plaintiff’s disclosure of his disability, request for
accommodations, and termination, and despite the fact that the plaintiff
submitted evidence contradicting the employer’s explanation.
A.
Factual Background.
From 2014 to 2019, Cleon Belgrave worked as a dough room
production operator at Publix Super Markets, Inc.’s bakery plant in Atlanta,
Georgia. R.48-2 at 1 (¶ 1).
Belgrave’s duties included preparing and mixing pie dough—which involved operating
industrial mixers and manually opening and emptying ingredient containers—and
pushing mixed dough down a production line. R.48-2 at 1-2 (¶¶ 2-10); R.52
at 4-5 (¶¶ 2-10).
While working at Publix, Belgrave suffered several
injuries that affected his ability to work. In July 2015, Belgrave hit his head
on a freezer door, causing injuries to his head and neck. R.48-2 at 5
(¶ 25). In March 2018, another employee hit Belgrave with a pallet,
injuring his legs. R.48-2 at 5 (¶ 27). Publix accommodated Belgrave’s
injuries by placing him on light duty, allowing him to work on other parts of
the production line, providing him with a stool or chair to sit on while
working, or occasionally assigning another employee as a “helper” to assist
Belgrave with his tasks. R.48-2 at 5-6 (¶¶ 26, 28-29).
On May 25, 2019, Belgrave hit his head on an air hose
pipe, again injuring his head and neck. R.48-2 at 6 (¶ 30). Belgrave did
not return to work until June 3, 2019. R.48-2 at 6 (¶ 34). On the same
day, Belgrave requested accommodations, though the parties dispute exactly what
he asked for. Consistent with the accommodations Publix had previously
provided, Belgrave alleges that he asked Publix to assign a “helper” to assist
him, and he sometimes asked for the assignment to be permanent. R.48-2 at 6-7
(¶ 36); R.52 at 8 (¶ 28). He also alleges that he asked whether
Publix could adjust the “speed” on the equipment he used to make it easier for
him to work. R.48-2 at 37 (73:4-5); R.52 at 16. According to Publix, Belgrave’s
sole request was for the company to hire a “permanent full-time helper” to
perform his job for him. R.48-2 at 7 (¶ 37).
On June 7, 2019—just four days after Belgrave requested accommodations,
thereby disclosing his condition—Publix fired him. R.48-2 at 7 (¶ 39).
Publix maintains that it fired Belgrave for insubordination after he refused to
sign a written recap of a safety meeting. R.48-2 at 7 (¶¶ 38-39). Belgrave
asserts that he signed and returned the form. R.48-2 at 58-59. Belgrave also alleges
that, on the same day Publix fired him, he raised complaints about potential
discrimination with a supervisor. R.52 at 10 (¶ 44), 14.
Believing that he had been subjected to unlawful discrimination
and retaliation, Belgrave completed an EEOC intake questionnaire on November
22, 2019—168 days after his termination. R.48-2 at 95-98; R.52 at 10 (¶ 43).
Belgrave checked “Box 2” in the questionnaire, indicating his intent to file a
charge and authorizing the EEOC to investigate. R.48-2 at 98. On February 10,
2020, Belgrave filed a “Form 5” charge of discrimination, which he verified
with a declaration under penalty of perjury. R.48-2 at 93; see also 29 C.F.R. § 1601.3(a). After the EEOC issued a right-to-sue letter,
Belgrave filed this pro se action.
B.
District Court’s Decision.
In a report and recommendation (R&R) on Publix’s
motion for summary judgment, the magistrate judge determined that Belgrave’s claims
were barred because he had not timely filed a charge of discrimination with the
EEOC. R.56 at 7-9. The judge reasoned that, although Belgrave filed an intake
questionnaire within the time limit, a questionnaire “is generally not
equivalent to a charge,” and Belgrave’s questionnaire was unverified. R.56 at 8-9.
Alternatively, the judge concluded that Belgrave could not establish a prima
facie case of discrimination or retaliation. R.56 at 9-14.[4]
The magistrate judge also notified Belgrave that he had
fourteen days to object to the R&R. R.57. Belgrave timely filed a document
challenging the magistrate judge’s proposed rulings, though he styled it as a
“Notice of Appeal and Enumeration of Errors.” R.58 at 2. Nevertheless, Belgrave
made clear that he was “objecting to the Judges [sic] ruling,” identified
errors he believed the magistrate judge had made, and provided record citations
to support his arguments. R.58 at 2-12. The district court, however, treated
Belgrave’s filing as a notice of appeal and transmitted it to this Court, which
docketed the appeal. R.60; R.61.
Despite Belgrave’s pending appeal, the district court
retained jurisdiction. R.62 at 1-2 & n.1. While noting an apparent “absence
of objections,” the district court acknowledged that Belgrave’s notice of
appeal “may pose objections under the guise of ‘Enumerations of Error.’” R.62
at 2 & n.1. Accordingly, the court conducted a de novo review of the
portions to which Belgrave objected, overruled those objections without
explanation, adopted the R&R, and granted summary judgment to Publix. R.62
at 2 & n.1. Shortly thereafter, this Court dismissed Belgrave’s first
appeal as premature. R.65.
Belgrave then timely filed a second notice of appeal
challenging the district court’s order. R.67; R.70.
I. Belgrave’s EEOC intake questionnaire served as a
timely charge of discrimination.
A. It is well settled that an intake questionnaire constitutes
a charge of discrimination if it contains information required by EEOC
regulations (i.e., an allegation of discrimination and the respondent’s name) and
can be “reasonably construed as a request for the agency to take remedial
action to protect the employee’s rights.” Fed. Express Corp. v. Holowecki,
552 U.S. 389, 402 (2008).
Here, there is no dispute that Belgrave’s questionnaire identifies Publix as
the respondent, alleges that Publix engaged in discrimination and retaliation,
and sets forth facts supporting those allegations. Furthermore, Belgrave
requested that the EEOC take remedial action by checking “Box 2” on the form,
indicating his intent to file a charge and authorizing the EEOC to investigate.
As the two other circuits that have addressed this issue have made clear, those
actions suffice to render a questionnaire a charge.
B. EEOC regulations also allow an employee to amend a
charge to cure technical defects, “including the failure to verify the charge,”
and such amendments relate back to the original filing. 29 C.F.R.
§ 1601.12(b).
Thus, if an employee timely files an unverified intake questionnaire that
otherwise qualifies as a charge, he may provide the required verification outside
the charge-filing period. Here, Belgrave’s February 2020 verified charge of
discrimination related back to his November 2019 questionnaire, cured any
technical defect, and rendered his charge timely.
C. To the extent this Court has held that an intake
questionnaire may constitute a charge of discrimination only under exceptional
circumstances, those decisions have been abrogated by Supreme Court precedent,
are unpublished, or do not address the specific circumstances presented here. Thus,
no precedent prevents this Court from correctly holding that Holowecki governs
whether and when an intake questionnaire constitutes a charge of discrimination.
II. Under the correct legal standards, genuine issues of
material fact preclude summary judgment on Belgrave’s discrimination and
retaliation claims.
A. The magistrate judge incorrectly concluded that
Belgrave is unable to perform the essential functions of his job—and therefore
is not a “qualified individual”—based solely on his December 2020 testimony in
a workers’ compensation case that he was unable to work. The Supreme Court rejected
the same reasoning in Cleveland v. Policy Management Systems Corp., 526
U.S. 795 (1999),
holding that a plaintiff’s pursuit of Social Security disability benefits does
not preclude him from pursuing an ADA discrimination claim. As Cleveland
instructs, Belgrave’s testimony that he was unable to work in December 2020 is
not dispositive because, among other things, it does not address his abilities when
he requested accommodations in June 2019—which is the relevant timeframe for
his ADA discrimination claim. Moreover, Belgrave explained why the two claims
were compatible: his condition deteriorated after he left Publix. Under Cleveland,
that explanation was sufficient to survive summary judgment.
B. The magistrate judge likewise erred in determining that
the accommodation Belgrave requested was unreasonable as a matter of law. Restructuring
a job to reassign “marginal duties” to other workers can be a reasonable
accommodation. Liberally construed, Belgrave’s allegations suggest he asked
Publix to restructure his job in this fashion by assigning some of his tasks other
existing workers. Thus, the relevant question is whether those tasks were marginal
duties rather than essential functions. Because the record is silent on that
question, and neither the parties nor the magistrate judge addressed it below,
the appropriate remedy is for this Court to remand for the district court to
consider the issue in the first instance.
C. Finally, the magistrate judge improperly credited Publix’s
assertion that it fired Belgrave for insubordination, ignoring contrary evidence.
Under settled precedent, temporal proximity alone can establish causation at
the prima facie stage. Here, Publix fired Belgrave just thirteen days after he was
injured and four days after he disclosed his condition and requested
accommodations. Belgrave also provided additional evidence that Publix’s
proffered reasons for firing him were pretextual.
For these reasons, the district court’s grant of summary
judgment should be reversed, and the case should be remanded for further
proceedings.
I.
Belgrave filed a timely charge of discrimination with the EEOC.
As a prerequisite to pursuing an ADA claim in federal
court, an employee ordinarily must file a “charge of discrimination” with the
EEOC within 180 days of his employer’s last discriminatory act. Maynard v.
Pneumatic Prods. Corp., 256 F.3d 1259, 1262 (11th Cir. 2001);
see also 42 U.S.C. § 12117(a) (ADA incorporating Title VII
procedures); id. § 2000e-5(e)(1) (Title
VII enforcement provisions).
Here, Belgrave completed an unverified intake questionnaire in November 2019
(fewer than 180 days after Publix fired him) and a verified “Form 5” charge of
discrimination in February 2020 (more than 180 days after Publix fired him).
R.48-2 at 8 (¶ 43), 93, 98. Thus, in assessing the timeliness of
Belgrave’s filing, the dispositive question is whether his intake questionnaire
served as a charge of discrimination.
The magistrate judge found that it did not because an
intake questionnaire “is generally not equivalent to a charge” and, in any
event, Belgrave’s was unverified. R.56 at 8. Neither rationale is correct.
A.
Belgrave’s intake questionnaire constitutes a charge of discrimination.
Unquestionably, an EEOC intake questionnaire “may
constitute a charge” under certain circumstances. Wilkerson v. Grinnell
Corp., 270 F.3d 1314, 1321 (11th Cir. 2001).
The Supreme Court has held that an intake questionnaire may be “deemed a
charge” if it contains information required by the regulations (i.e., an
allegation of discrimination and the respondent’s name) and can be “reasonably
construed as a request for the agency to take remedial action to protect the
employee’s rights.” Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402
(2008); see also 29 C.F.R. § 1626.6.
The intake form itself states, “this questionnaire may serve as a charge
if it meets the elements of a charge.” R.48-2 at 98 (emphasis added).
Belgrave’s intake questionnaire easily clears that low
hurdle. In the questionnaire, Belgrave named Publix as the respondent, alleged
that Publix discriminated and retaliated against him, and provided facts to
support those allegations. R.48-2 at 95-98. Belgrave also requested that the
EEOC take remedial action by checking “Box 2” on the form, which states, “I
want to file a charge of discrimination, and I authorize the EEOC to look into
the discrimination I described above.” R.48-2 at 98.
As other circuits have held, that was enough to meet the
elements of a charge. See EEOC v. Vantage Energy Servs., Inc., 954 F.3d
749, 755 (5th Cir. 2020) (checking
“Box 2” on EEOC intake questionnaire “constitutes a clear manifestation of [the
employee’s] intent for the EEOC [to] take remedial action”), cert. denied,
141 S. Ct. 1048 (2021); Hildebrand v. Allegheny Cnty., 757 F.3d 99, 113
(3d Cir. 2014) (“[A]n
employee who completes [EEOC’s] Intake Questionnaire and checks Box 2
unquestionably files a charge of discrimination.”); see also Woodward v. Jim
Hudson Luxury Cars, Inc., 2019 WL 4793058, at *6 (S.D. Ga. Sept. 30, 2019) (checking
Box 2 in intake questionnaire can be reasonably construed as “manifesting [an]
intent to activate the administrative process”); Fatz v. Winn-Dixie Stores,
Inc., 2013 WL 4080330, at *9 (M.D. Fla. Aug. 13, 2013) (same).
This Court should hold likewise.
B.
Belgrave cured any technical defect by later providing the required
verification.
The fact that Belgrave did not initially verify his
intake questionnaire does not change the result. True, a charge must be “in
writing under oath or affirmation.” 42 U.S.C. 2000e-5(b).
But EEOC regulations allow an employee to amend a charge to cure technical
defects, “including the failure to verify the charge,” and provide that “such
amendments . . . will relate back to the date the charge was first
received.” 29 C.F.R. § 1601.12(b). Thus, “[a]n unverified but otherwise
valid charge may be verified after the time for filing a charge has expired.” Edelman
v. Lynchburg College, 300 F.3d 400, 404 (4th Cir. 2002);
see also Edelman v. Lynchburg College, 535 U.S. 106, 113 (2002) (Title
VII’s verification requirement “demands an oath only by the time the employer
is obliged to respond to the charge, not at the time an employee files it with
the EEOC”).
The relation-back regulation applies with equal force
when the employee’s charge of discrimination comprises an intake questionnaire,
as this Court recognized in Wilcox v. Corrections Corp. of America, 603
F. App’x 862 (11th Cir. 2015).
There, as here, the plaintiff filed an unverified intake questionnaire within
180 days of her employer’s last act of discrimination, and she later filed a verified
“Form 5” charge of discrimination concerning the same conduct. Id. at 864, 866. Citing the relation-back regulation, the panel had no difficulty concluding
that the plaintiff’s verified charge related back to her unverified intake
questionnaire, cured any verification defect, and rendered her charge timely. Id. at 866 (citing 29 C.F.R. § 1601.12(b)).
Other circuits have applied the relation-back regulation
in precisely the same manner, holding that an employee’s timely but unverified
intake questionnaire may serve as a charge of discrimination if the employee
later provides the required verification. See Vantage Energy,
954 F.3d at 757 (“[Plaintiff’s] EEOC intake questionnaire was sufficient as a
charge and, although verified outside of the filing period, was ‘timely’ by
virtue of the relation-back regulation.”); Brooks v. Midwest Heart Grp.,
655 F.3d 796, 801 (8th Cir. 2011) (“Even
if the questionnaire fell short of the adequate ‘charge’ of discrimination at
the outset, [plaintiff’s] 2010 submission could cure the initial defect and
relate back to 2007.”); Conner v. Louisiana Dep’t of Health & Hosps.,
247 F. App’x 480, 481-82 (5th Cir. 2007) (verified
charge related back to unverified intake questionnaire); cf. Aly v.
Mohegan Council, Boy Scouts of Am., 711 F.3d 34, 44 (1st Cir. 2013) (verified
complaint related back to unverified interview form).
This case is on all fours with Wilcox and its
companions. Under those decisions, Belgrave’s February 2020 charge of
discrimination related back to his November 2019 intake questionnaire, cured
any verification defect, and rendered his charge timely. See Wilcox, 603
F. App’x at 866; Vantage Energy, 954 F.3d at 757.
C.
This Court’s precedents do not compel a different result.
In a pair of pre-Holowecki decisions, this Court
held that an intake questionnaire may serve as a charge of discrimination only
under exceptional circumstances. See Bost v. Fed. Express Corp., 372
F.3d 1233 (11th Cir. 2004);
Pijnenburg v. W. Georgia Health Sys., Inc., 255 F.3d 1304 (11th Cir.
2001).
But Holowecki made clear that there is nothing exceptional about a
questionnaire serving as a charge of discrimination: it need only provide the
required information and ask the EEOC to take remedial action. And although some
unpublished decisions have continued to apply Bost and Pijnenburg,
they are readily distinguishable because none addressed (i) whether
checking Box 2 in an intake questionnaire qualifies as a request for remedial
action; or (ii) whether a verified charge can relate back to an earlier
unverified intake questionnaire. See, e.g., Byrd v. UPS, 814 F.
App’x 536 (11th Cir. 2020);
Hicks-Washington v. Hous. Auth. of City of Fort Lauderdale, 803 F. App’x
295 (11th Cir. 2020);
Shi v. Montgomery, 679 F. App’x 828 (11th Cir. 2017);
Francois v. Miami Dade Cnty., Port of Miami, 432 F. App’x 819 (11th Cir.
2011).
In fact, Box 2 did not appear in older versions of the form. See EEOC v.
Summer Classics, Inc., 41 F. Supp. 3d 1287, 1297 (N.D. Ala. 2011),
aff’d 471 F. App’x 868 (11th Cir. 2012). Moreover, none of these post-Holowecki
cases directly addressed the continued viability of Bost and Pijnenburg.
In any event, because these decisions are unpublished,
they “are not precedential and they bind no one.” Ray v. McCullough Payne
& Haan, LLC, 838 F.3d 1107, 1109 (11th Cir. 2016).
This case presents an opportunity for this Court to clarify that Holowecki governs
the conditions under which an intake questionnaire constitutes a charge.
II.
Under the correct legal standards, genuine issues of material fact
preclude summary judgment on Belgrave’s discrimination and retaliation claims.
To establish a prima facie case of disability
discrimination, a plaintiff must show that he (i) has a disability, (ii)
is a qualified individual, and (iii) was subjected to unlawful
discrimination because of his disability. Samson v. Fed. Express Corp.,
746 F.3d 1196, 1200 (11th Cir. 2014).
An employer’s failure to provide a reasonable accommodation qualifies as
unlawful discrimination, satisfying the third prong. Holly v. Clairson
Indus., LLC, 492 F.3d 1247, 1249 (11th Cir. 2007);
42 U.S.C. § 12112(b)(5)(A).
Similarly, to establish a prima facie case of retaliation, a plaintiff must
show that (i) he engaged in protected activity, (ii) he suffered an adverse
employment action, and (iii) there was a causal link between the two. Frazier-White
v. Gee, 818 F.3d 1249, 1258 (11th Cir. 2016).
An employee engages in protected activity when he makes “a request for a
reasonable accommodation.” Id.
Belgrave appears to allege, among other things, that
Publix discriminated against him by refusing to provide a reasonable
accommodation, and both discriminated and retaliated against him by firing him
days after he disclosed his condition and requested accommodations.
There is no dispute that Belgrave has a disability and suffered an adverse
employment action. R.56 at 10; R.48-2 at 10-11 (¶¶ 56-58). The magistrate
judge nonetheless concluded that Belgrave could not establish a prima facie
case of discrimination or retaliation because he is not a qualified individual,
his accommodation request was unreasonable, and Publix fired him for insubordination.
Each determination is legally and factually flawed.
Under the correct legal standards, several open factual questions preclude
summary judgment on Belgrave’s claims.
A.
Belgrave’s testimony in his workers’ compensation case does not
foreclose his contention that he is a “qualified individual.”
Under the ADA, a “qualified individual” is a person who,
with or without reasonable accommodation, can perform the essential functions
of his job. 42 U.S.C. § 12111(8).
Here, the magistrate judge concluded that Belgrave was not a qualified
individual because he “testified that he cannot work at all due to a
disability.” R.56 at 11. In support, the magistrate judge relied solely on
Belgrave’s December 2020 deposition in a workers’ compensation case, where
Belgrave testified that his “body can’t function like that to work” and he “cannot
get up in the morning—or it’s hard to.” R.48-2 at 115 (48:22-24).
The magistrate judge’s reasoning runs contrary to well-established
precedent addressing the intersection of disability benefits law and disability
discrimination law. In Cleveland v. Policy Management Systems Corp., 526
U.S. 795 (1999), the Supreme Court held that applying for—and even
receiving—disability benefits does not preclude a plaintiff from pursuing an
ADA discrimination claim. That is so, the Court explained, because the
standards for assessing whether a person is disabled for purposes of benefits
are or can be different from the standards for determining whether a person is
a “qualified individual” under the ADA. Id. at 802-03. Moreover, because “the nature of an individual’s disability may change over time,” a
plaintiff’s statement that she was “totally disabled” and unable to work at the
time of her benefits application “may not reflect [her] capacities at the time
of the relevant employment decision.” Id. at 805.
That distinction is critical because the relevant question under the ADA is whether
a plaintiff is a qualified individual when he requests—and his employer
denies—an accommodation. See Minter v. District of Columbia, 809 F.3d
66, 70 (D.C. Cir. 2015) (“The
plaintiff must establish her ability to perform those functions (with or
without reasonable accommodation) at the time the employer denied her
request for accommodation.”) (emphasis added); Basden v. Pro. Transp.,
Inc., 714 F.3d 1034, 1037 (7th Cir. 2013) (“[The
employee’s] ability to come to work, or to otherwise perform the essential
functions of her job, is examined as of the time of the adverse employment
decision at issue.”) (emphasis added); Interpretive Guidance on Title I of
the Americans with Disabilities Act, 29 C.F.R. pt. 1630, app. § 1630.2(m) (same).
Finally, the Cleveland Court noted that “if an
individual has merely applied for, but has not been awarded, [disability]
benefits, any inconsistency in the theory of the claims is of the sort normally
tolerated by our legal system.” 526 U.S. at 805. For these reasons, the Court
concluded that, to survive summary judgment, an ADA plaintiff need only explain
why her disability benefits claim that she is “too disabled to work . . .
is consistent with her ADA claim that she could ‘perform the essential functions’
of her previous job, at least with ‘reasonable accommodation.’” Id. at
798.
Although Cleveland involved Social Security disability
benefits rather than workers’ compensation, its reasoning applies with equal
force here. At best for Publix, Belgrave’s testimony suggests only that he was
unable to work in December 2020, a year and half after Publix fired him in June
2019. Belgrave’s testimony thus does not necessarily “reflect [his] capacities
at the time of the relevant employment decision.” Id. at 805. Moreover, Belgrave explained why that testimony was consistent with his contention
that he could, with reasonable accommodation, perform the essential functions
of his job when he requested that accommodation. Namely, Belgrave explained
that his condition “deteriorated” after he left Publix, eventually leaving him
unable to work. R.58 at 6. The record also does not reflect whether Belgrave
ever received an award of workers’ compensation benefits. If he did not, any
inconsistency between his workers’ compensation claim and his ADA claim is
precisely “the sort normally tolerated by our legal system.” Cleveland,
526 U.S. at 805.
Even putting Cleveland aside, Belgrave’s vague
assertion that his “body can’t function like that” hardly suffices to establish
the legal conclusion that he was unable to perform the essential functions of
his job even with reasonable accommodation—particularly when the facts are construed
in Belgrave’s favor. In short, Belgrave’s testimony in his workers’
compensation case simply does not foreclose his contention that he was a
qualified individual under the ADA.
Because the magistrate judge incorrectly viewed
Belgrave’s testimony as dispositive, the judge did not attempt to identify the
essential functions of Belgrave’s job or determine whether he could have
performed them with reasonable accommodation during the relevant timeframe.
Belgrave alleges that he could, and even Publix does not dispute that Belgrave
could have performed the concededly “limited” essential functions of his job
with the accommodations he requested. R.48-1 at 12. (As explained below at Part
II.B, there are also open factual questions about whether the accommodations Belgrave
requested were reasonable.) Under these facts, a reasonable jury could find
that Belgrave was a qualified individual.
B.
There are open factual questions about what accommodations Belgrave
requested and whether they were reasonable.
The magistrate judge determined that the only
accommodation Belgrave requested was a “permanent full-time helper” and
reasoned that “such an accommodation is not reasonable” because it would
require Publix to hire someone else to do Belgrave’s job. R.56 at 12. There are
two problems with that reasoning.
First, though Belgrave’s requests for a “helper”
certainly could have been clearer, he maintains that he neither asked nor
intended for Publix to hire another full-time employee to assist him. R.58 at
11 (“[D]efendants did not have to hire someone to fulfill this role.”).
Instead, he “asked for help” from existing employees, including “[e]very
manager and supervisor possible” and his “fellow operators.” R.48-2 at 40 (87:3-5); see also R.52 at 16
(Belgrave “[a]sked the supervisor to help [him] in the dough room”); R.49-1 at
74 (72:18-20) (Belgrave denying that he asked only for a “permanent helper” and
saying that “anyone can help”). Some of Belgrave’s testimony suggests that he asked
for help with only a subset of his assigned tasks, including “help to lift” and
“[o]pen the boxes.” R.48-2 at 40 (87:14-15). Taken together and liberally
construed, Belgrave’s allegations suggest he asked Publix to restructure his
job, which can be a reasonable accommodation. 42 U.S.C. § 12111(9)(B) (defining “reasonable accommodation” to include “job restructuring”); Holly,
492 F.3d at 1256 (“[T]he ADA may require an employer to restructure a
particular job by altering or eliminating some of its marginal
functions.”) (quotation marks omitted).
Second, and more critically, whether reassigning a
subset of Belgrave’s tasks was a reasonable accommodation turns on whether
those tasks were essential functions or merely marginal ones. Of course, “the
ADA does not require an employer . . . to adjust co-workers’ duties
to make them work longer or harder” or to “reassign existing employees to
perform” a disabled employee’s essential job functions. Burch v. City of
Nacogdoches, 174 F.3d 615, 621 (5th Cir. 1999).
However, “[s]hifting marginal duties to other employees who can easily perform
them is a reasonable accommodation.” Rorrer v. City of Stow, 743 F.3d
1025, 1044 (6th Cir. 2014);
see also Supinski v. United Parcel Serv., Inc., 413 F. App’x 536,
542-43 (3d Cir. 2011) (“assistance
from fellow employees” with heavy-lifting tasks can be a reasonable accommodation
where there was “a genuine factual issue as to whether such heavy lifting was
an essential job function”).
Here, the parties did not brief or submit evidence on whether
the specific tasks with which Belgrave requested help were essential or marginal.
Instead, Publix argued (and the magistrate judge agreed) that, because Belgrave
was “totally disabled,” he was unable to perform any essential job functions,
whatever they were. As a result, although Publix and Belgrave largely agreed on
what his job duties were, compare R.48-2 at 1-2 (¶¶ 2-10), with R.52
at 4-5 (¶¶ 2-10), neither explained which of those duties were essential
and which were not.
Under these circumstances, the appropriate procedure is
for this Court to remand the case to allow the parties to brief and the
district court to address this question in the first instance. See Schaw v.
Habitat for Human. of Citrus Cnty., Inc., 938 F.3d 1259, 1268 (11th Cir.
2019) (“Because
the record is silent as to the likely effect of [the plaintiff’s] request, we
think it prudent to remand to allow the district court to determine, in the
first instance, whether the accommodation constitutes an undue burden on or
fundamental alteration of [the defendant’s] program.”); cf. Miller v. Dugger,
838 F.2d 1530, 1544 (11th Cir. 1988) (“Because
of the novelty of the issue, and because the parties did not brief this issue
to us, the appropriate procedure appears to be to remand this case to the
district court for further proceedings . . . .”).
On remand, the district court should consider whether a
reasonable jury could find that the specific tasks with which Belgrave
requested help were marginal duties rather than essential functions. The EEOC
takes no position on the ultimate resolution of that case-specific inquiry, but
notes that in assessing whether a particular duty is an essential function,
courts should consider “evidence of the employer’s actual practices in the
workplace.” Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 285-86
(7th Cir. 2015) (quotation marks omitted);
see also Holly, 492 F.3d at 1257 (essential functions “are the
fundamental job duties of a position that an individual with a disability is
actually required to perform”) (quotation marks omitted); EEOC v. LHC Grp.,
Inc., 773 F.3d 688, 698 (5th Cir. 2014) (“The
inquiry into whether a particular function is essential initially focuses on
whether the employer actually requires employees in the position to
perform the functions that the employer asserts are essential.”) (quotation
marks omitted); 29 C.F.R. § 1630.2(n)(3).
Courts may likewise consider whether the tasks can be distributed amongst
multiple employees. See EEOC, Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act,
2002 WL 31994335, at *14 (2002) (“An
employer may switch the marginal functions of two (or more) employees in order
to restructure a job as a reasonable accommodation.”).
Here, some evidence suggests that Publix did not require
dough room production operators to perform all the duties assigned to them—or
at least not always. Indeed, Publix admitted that it previously accommodated
Belgrave’s injuries by, among other things, “occasionally providing a helper to
assist [him] . . . when there was an available extra employee.” R.48-2
at 5-6 (¶ 28). Belgrave similarly asserts that Publix routinely offered
“helpers” to other operators, R.52 at 4 (¶ 4), and would sometimes even
reassign him to “help out” as needed on other parts of the dough-production
line, R.52 at 4 (¶ 8). Publix did not explain why this form of job
restructuring was no longer feasible despite its past practices. The ultimate
factfinder would be entitled to consider these facts in assessing which of Belgrave’s
duties were essential.
Finally, the record reflects that Belgrave requested
other forms of accommodation as well. For instance, Belgrave asked whether
Publix could adjust the “speed” on the equipment he used to make it easier for
him to work. R.48-2 at 37 (73:4-5); R.52 at 16. Neither Publix nor the
magistrate judge addressed this request or explained why it was not reasonable.
At a minimum, Belgrave’s various requests may have been enough to trigger
Publix’s duty to engage in an “interactive process” to determine an appropriate
reasonable accommodation. 29 C.F.R. § 1630.2(o)(3).
C.
Belgrave provided evidence that Publix fired him for discriminatory or
retaliatory reasons and that Publix’s proffered reasons for firing him were
pretextual.
Finally, the magistrate judge determined that Belgrave
could not prove that Publix fired him for discriminatory or retaliatory reasons
because the “undisputed facts indicate that [Publix] terminated [Belgrave] for
insubordination.” R.56 at 11, 14. That reasoning is factually and legally
flawed.
It is well settled that temporal evidence alone can
establish a causal relationship at the prima facie stage. With respect to
retaliation claims, the Eleventh Circuit has long held that “[a] ‘close
temporal proximity’ between [an employee’s] protected expression and an adverse
action is sufficient circumstantial evidence of a causal connection for
purposes of a prima facie case,” Higdon v. Jackson, 393 F.3d 1211, 1220
(11th Cir. 2004),
and “will generally be enough to create a factual issue on the causation
element,” Singleton v. Pub. Health Tr. of Miami-Dade Cnty., 725 F. App’x
736, 738 (11th Cir. 2018).
Similarly, temporal evidence can support an inference of
discrimination when “the adverse employment action is very close in time to a
discrete event, such as when employers learned about the basis for the alleged
discrimination.” Barber v. Cellco P’ship, 808 F. App’x 929, 935 (11th
Cir. 2020).
For example, a close temporal proximity between an employee’s “disclosure of a
potentially debilitating condition” and an adverse employment action is
“sufficient to put the employer to its proofs—the purpose of the
burden-shifting scheme.” Sprenger v. Fed. Home Loan Bank of Des Moines,
253 F.3d 1106, 1113-14 (8th Cir. 2001);
see also Dennis v. Fitzsimons, 850 F. App’x 598, 602 (10th Cir.
2021) (“[A]
close temporal proximity between the employer learning about the disability and
taking adverse employment action may give rise to an inference of
discrimination.”).
Here, Publix fired Belgrave on June 7, 2019, just
thirteen days after he suffered a potentially debilitating injury (on May 25,
2019), just four days after he disclosed his condition and requested
accommodations (on June 3, 2019), and—according to Belgrave—the same day he complained
of potential discrimination. R.48-2 at 6-7 (¶¶ 30, 35-37, 39); R.52
at 10 (¶ 44), 14. At the prima facie stage, that evidence was sufficient
to raise an inference of causation for both his discrimination and retaliation
claims.
By focusing on Publix’s rationale for firing Belgrave,
the magistrate judge ignored this timing evidence and conflated Belgrave’s
prima facie case with Publix’s burden to articulate neutral, non-discriminatory,
and non-retaliatory reasons for its actions. See R.56 at 13 n.3
(purporting to resolve case at prima facie stage). Even assuming the magistrate
judge implicitly determined that Publix had satisfied that burden, Belgrave
provided additional evidence that those reasons were pretextual. See
R.52 at 9 (¶¶ 38-40). In his deposition, Belgrave refuted Publix’s
assertion that it fired him because he refused to sign a written recap of a safety
meeting. R.48-2 at 7 (¶ 38). Belgrave testified that he did not receive
the safety materials until he returned to work on June 3, 2019, that he signed
and returned the form soon thereafter, and that the plant manager who would
later approve his termination thanked him for completing the form. R.48-2 at
58-59 (121:7-122:13); R.49-1 at 125 (123:24-124:3). Belgrave also supplied a
copy of what appears to be the signed safety form, which is dated June 5, 2019.
R.52-1 at 11-13.
Considering Belgrave’s testimony and the close connection
between Belgrave’s disclosure of his disability, his accommodation request, and
his termination, a reasonable jury could conclude that Publix’s proffered
reasons were pretextual. See Combs v. Plantation Patterns, 106 F.3d
1519, 1538 (11th Cir. 1997) (where
“a reasonable jury could conclude that the employer’s proffered reasons were
not the real reason for its decision,” district court “may not preempt the
jury’s role of determining whether to draw an inference of intentional
discrimination from the plaintiff’s prima facie case taken together with
rejection of the employer’s explanations for its action”); see also Pastran
v. K-Mart Corp., 210 F.3d 1201, 1206 (10th Cir. 2000) (temporal
proximity “is a factor in determining whether the employer’s proffered reason
is a pretext for retaliation”).
For the foregoing reasons, the district court’s grant of
summary judgment should be reversed, and the case should be remanded for
further proceedings.
Respectfully submitted,
GWENDOLYN
YOUNG REAMS
Acting General Counsel
JENNIfer
s. goldstein
Associate General Counsel
Dara
S. Smith
Assistant General Counsel
/s/ Steven Winkelman
STEVEN
WINKELMAN
Attorney
Equal Employment
Opportunity Commission
Office of General
Counsel
131 M Street NE,
Fifth Floor
Washington, DC
20507
(202) 921-2564
steven.winkelman@eeoc.gov
October 21, 2022
This brief complies with the type-volume limit of
Federal Rules of Appellate Procedure 29(a)(5) and 32(a)(7)(B) because it
contains 6,483 words, excluding the parts of the brief exempted by Federal Rule
of Appellate Procedure 32(f) and Eleventh Circuit Rule 32-4.
This brief also complies with the typeface and
type-style requirements of Federal Rules of Appellate Procedure 32(a)(5) and
32(a)(6) because it was prepared in a proportionally spaced typeface using Microsoft
Word in size 14, Century font.
/s/ Steven Winkelman
STEVEN
WINKELMAN
October 21, 2022
I hereby certify that on
October 21, 2022, a copy of the foregoing brief was electronically filed using
the Court’s CM/ECF system, which will result in service on all counsel of
record. In addition, a copy of this brief was served by email on Cleon
Belgrave, a pro se litigant, with permission.
I further certify that I
caused four (4) paper copies of the foregoing brief to be mailed to the Clerk
of Court by UPS, ground delivery, postage pre-paid.
/s/ Steven Winkelman
STEVEN
WINKELMAN
October 21, 2022
