Diana H. Byrd v. UPS

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 19-13758
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-03133-AT

DIANA H. BYRD,

Plaintiff-Appellant,

versus

UPS (UNITED PARCEL SERVICE),

Defendant-Appellee,

DEBBIE MATHISON,
Supervisor, et al.,

Defendants.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 2, 2020)
Before JORDAN, NEWSOM and MARCUS, Circuit Judges.

PER CURIAM:
Diana Byrd, proceeding pro se, appeals the district court’s grant of summary
judgment to United Parcel Service (“UPS”) in her lawsuit alleging racial
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discrimination and retaliation under Title VII of the Civil Rights Act, 42 U.S.C. §
2000e, and a reasonable accommodation claim under the American with Disabilities
Act (“ADA”), 42 U.S.C. § 12101. On appeal, she argues that: (1) the district court
failed to consider all the evidence in granting summary judgment to UPS on her Title
VII claims; and (2) the district court improperly granted summary judgment to UPS
on her reasonable accommodation claim. After careful review, we affirm.
We review a district court’s grant of summary judgment de novo. Kernel
Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). Summary judgment
is proper when there is no genuine issue of material fact and the movant is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). A factual dispute exists where
a reasonable factfinder could find by a preponderance of the evidence that the
nonmovant is entitled to a verdict. Kernel Records, 694 F.3d at 1300. In determining
whether evidence creates a factual dispute, we draw reasonable inferences in favor
of the nonmoving party, but inferences based upon speculation are not reasonable.
Id. at 1301. To overcome a motion for summary judgment, the nonmoving party
must present more than a scintilla of evidence supporting its position. Brooks v.
Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006).
First, we are unpersuaded by Byrd’s argument that the district court erred in
granting summary judgment to Byrd on her Title VII racial discrimination and
retaliation claims. Before suing under Title VII, a plaintiff must exhaust her
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administrative remedies by filing a charge of discrimination with the EEOC within
180 days of the last discriminatory act. H&R Block E. Enterprises, Inc. v. Morris,
606 F.3d 1285, 1295 (11th Cir. 2010). While a claimant may fill out, and submit,
an intake questionnaire prior to a charge, absent exceptional circumstances, an intake
questionnaire will not be deemed tantamount to a charge. Pijnenburg v. West Ga.
Health Sys., Inc., 255 F.3d 1304, 1307 (11th Cir. 2001) (holding that an intake
questionnaire did not satisfy statutory requirements for an administrative “charge”).
If remedies are exhausted, we analyze a claim based on circumstantial
evidence under the framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), which requires the plaintiff to create an inference of discrimination
through her prima facie case. McDonnell Douglas, 411 U.S. at 802. If the plaintiff
can make this showing, the burden of production shifts to the employer to articulate
a legitimate, non-discriminatory reason for the challenged employment action.
Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1347 (11th Cir.
2007). If the employer satisfies this burden, the burden shifts back to the plaintiff to
show that the proffered reason is merely a pretext for unlawful discrimination. Id.
A plaintiff establishes a prima facie case of discrimination by showing that: (1) she
is a member of a protected class; (2) she was qualified for the job; (3) she was
subjected to an adverse employment action; and (4) her employer treated similarly
situated employees outside the protected class more favorably. Evans v. Books-A-
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Million, 762 F.3d 1288, 1297 (11th Cir. 2014). Bare and self-serving allegations are
inadequate to carry a plaintiff’s burden. Stewart v. Booker T. Washington Ins., 232
F.3d 844, 851 (11th Cir. 2000). An unlawful employment action occurs each time
an employee is paid under a discriminatory compensation scheme. 42 U.S.C. §
2000e-5(e)(3)(A).
To establish a prima facie retaliation claim a plaintiff must show that: (1) she
engaged in statutorily protected activity; (2) she suffered an adverse employment
action; and (3) there was some causal relationship between the adverse employment
action and her protected activity. Pennington v. City of Huntsville, 261 F.3d 1262,
1266 (11th Cir. 2001). A plaintiff may satisfy the causal connection element by
producing sufficient evidence that the employer was aware of the protected activity
and that there was a close temporal proximity between the awareness and the adverse
action. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1180 n.30 (11th Cir. 2003).
An employment action is considered “adverse” only if it results in some tangible,
negative effect on the plaintiff’s employment. Lucas v. W.W. Grainger, Inc., 257
F.3d 1249, 1261 (11th Cir. 2001).
Here, the district court did not err in granting summary judgment to UPS on
Byrd’s Title VII disparate-impact and retaliation claims.
1
As for Byrd’s failure to

1
Nor did the district court err in disregarding Byrd’s excuses for delayed filings, since pro se
litigants still must conform to procedural rules. See Albra v. Advan, Inc., 490 F.3d 826, 829 (11th
Cir. 2007).
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exhaust the disparate-impact claims she raised based on cross-training, time-off
requests, and negative performance reviews, she failed to exhaust her remedies
because she did not file a timely EEOC charge. As the record reflects, Byrd
contacted the EEOC on or about May 3, 2015, but she did not file a charge against
UPS until June 3, 2015. Her last day of work was November 14, 2014, which made
that the last date that type of misconduct (i.e., the denial of preferred flex time or
vacation days or cross-training opportunities) could have occurred. H&R Block,
606 F.3d at 1295. Because the day Byrd filed her EEOC charge, June 3, 2015, is the
operative date for purposes of exhaustion, Byrd failed to exhaust her remedies by
waiting more than 180 days from the last date of the alleged misconduct, November
14, 2014, to file the EEOC charge. Id.; Pijnenburg, 255 F.3d at 1307. As a result,
the district court did not err in finding that those events were unexhausted and could
not constitute stand-alone adverse employment actions.
The only disparate treatment claim Byrd exhausted was her claim that white
co -workers were cherry-picking the easier jobs, leaving her with harder jobs that
took longer to complete, which negatively affected her compensation, and
consequently, her short-term disability. This claim fell within the 180-day
exhaustion period because she received some form of payment through September
2015. H&R Block, 606 F.3d at 1295. Nevertheless, Byrd provided no evidence
demonstrating that the alleged cherry-picking misconduct by her co-workers had a
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tangible impact on her own compensation. Lucas, 257 F.3d at 1261; Evans, 762
F.3d at 1297. For example, she did not present any evidence that African Americans
were specifically prohibited from cherry-picking or that the inflated production
numbers resulted in higher merit raises for white employees than for African
Americans. Without any concrete evidence of any adverse employment action, her
own bare assertions were insufficient to establish a prima facie case and defeat
summary judgment. Evans, 762 F.3d at 1297; Kernel Records, 694 F.3d at 1301;
Stewart, 232 F.3d at 851.
The district court also properly granted summary judgment to UPS on Byrd’s
retaliation claim. As with her discrimination claim, Byrd failed to show any adverse
effect on her compensation. In addition, Byrd failed to show a connection between
an alleged threat from UPS Human Resources (“HR”) Manager Sunny Kurian and
her compensation, since Byrd offered no evidence that Kurian had control or
influence over whether she received a raise. Pennington, 261 F.3d at 1266; Shotz,
344 F.3d at 1180 n.30. And even if Byrd’s allegations were construed more liberally
to include other allegedly retaliatory acts, she failed to demonstrate any tangible
adverse employment action taken against her. Kernel Records, 694 F.3d at 1301.
On this record, the district court did not err in finding that Byrd failed to establish a
prima facie case of retaliation.
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Similarly, we find no merit to Byrd’s argument that the district court erred in
granting summary judgment to UPS on her ADA reasonable-accommodation claim.
The ADA prohibits discrimination against a qualified individual on the basis of
disability. 42 U.S.C. § 12112(a). The burden-shifting analysis applicable to Title
VII also applies to ADA claims of intentional disability discrimination. Hilburn v.
Murata Elec. N. Am., Inc., 181 F.3d 1220, 1226 (11th Cir. 1999). To establish a
prima facie case of discrimination under the ADA, a plaintiff must show: (1) she is
disabled; (2) she is a qualified individual; and (3) she was subjected to unlawful
discrimination because of her disability. Holly v. Clairson Indus., LLC, 492 F.3d
1247, 1255–56 (11th Cir. 2007).
Discrimination under the ADA also includes the failure to make a reasonable
accommodation to the known physical or mental limitations of the individual. 42
U.S.C. § 12112(b)(5)(A). An employer’s failure to reasonably accommodate a
disabled individual is itself discrimination, and the plaintiff does not bear the
additional burden of having to show that the employer acted in a discriminatory
manner toward its disabled employee. Holly, 492 F.3d at 1262. The plaintiff bears
the burden both to identify an accommodation and show that it is reasonable. Willis
v. Conopco, Inc., 108 F.3d 282, 284–86 (11th Cir. 1997). Further, the duty to
provide a reasonable accommodation is not triggered under the ADA unless a
specific demand for an accommodation has been made by the plaintiff. Gaston v.
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Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363-64 (11th Cir. 1999). Only
after the employee has satisfied this burden and the employer fails to provide that
accommodation can the employee prevail on a claim that her employer has
discriminated against her. Id. at 1364.
Further, the employer is not required to accommodate an employee in any
manner in which that employee desires. Stewart v. Happy Herman’s Cheshire
Bridge, Inc., 117 F.3d 1278, 1285-86 (11th Cir. 1997). An employer is not liable
where it made reasonable efforts to communicate with the employee and to provide
accommodations based on the information it possessed, and where the employee’s
actions caused the breakdown in the interactive process. Id. at 1286-87.
Here, the district court did not err in granting summary judgment to UPS on
Byrd’s reasonable accommodation claim. Although Byrd says that she was ready to
return to work after her medical leave-of-absence, she admitted in her deposition
that she was unsure whether she would be able to; she also admitted this in an e-mail
to an HR representative, Jennifer Monyhan; and she did not present any evidence
from doctors indicating she was ready to return to work in some capacity.
Accordingly, Byrd did not establish that she was both disabled and a qualified
individual. Holly, 492 F.3d at 1255-56.
But even assuming she could have returned to work, Byrd never clearly
requested an accommodation from UPS. Gaston, 167 F.3d at 1363-64; Willis, 108
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F.3d at 284–86. Rather, the evidence submitted indicates that her conversations with
Monyhan were about the possibility of certain accommodations, but nothing
unambiguously said that she could return if a specific accommodation was made.
Stewart, 117 F.3d at 1286. On this record, Byrd failed to meet her burden by
showing she was a qualified individual who made a reasonable accommodation
request. Accordingly, the district court properly granted summary judgment to UPS
on her ADA claim. See Holly, 492 F.3d 1255–56.
2

AFFIRMED.

2
Lastly, Byrd’s “Motion to Amend Reply Brief” is DENIED because the brief does not conform
to the Federal Rules of Appellate Procedure and it is not responsive to Appellee’s brief. See
Albra, 490 F.3d at 829; see also F. R. App. P. 27(a)(4), (d)(2)(D) (providing that a reply brief
must not present matters that do not relate to the response and must not exceed 10 pages). Nor,
moreover, does Byrd offer a valid reason as to why she should be granted leave to amend her
reply brief.
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