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                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-15218
                        ________________________

                     D.C. Docket No. 3:11-cv-00081-TCB



KEVIN G. RODDY,
a.k.a. Kevin Grayson Roddy,

                                                             Plaintiff - Appellant,


                                    versus


CITY OF VILLA RICA, GEORGIA,

                                                           Defendant - Appellee.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                              (October 4, 2013)
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Before PRYOR and COX, Circuit Judges, and WALTER, ∗ District Judge.

PER CURIAM:

       This appeal requires that we determine, first, whether an employee who

never requested a transfer to another position as a reasonable accommodation from

his employer can maintain a claim of failure to provide that transfer as a reasonable

accommodation under the Americans with Disabilities Act; second, whether

additional leave time is a reasonable accommodation when an employee cannot

establish that he will be able to perform his job in the present or immediate future;

third, whether an employee can establish a claim of either disability discrimination

or retaliation when his employer stated that it terminated him because of his

inability to perform his job and the record confirms that he could not perform his

job; and, fourth, whether an employee can predicate a claim under Georgia law for

intentional infliction of emotional distress on his termination from his job. Kevin

Roddy was a patrol officer employed by the police department of the City of Villa

Rica, Georgia. After suffering an injury while off duty, Roddy took a leave of

absence for back surgery in April 2010. During his recovery, he gave the

department a note from his doctor stating that he could return to work in January

2011. Roddy never requested that any decision maker with the City provide him

with a transfer to a new position, but gave the City a note that asked for additional

∗
 Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana,
sitting by designation.
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leave time. After Roddy exhausted his entitlement to leave under the Family

Medical Leave Act, the City terminated him because of his physical inability to

return to work. Roddy filed a complaint against the City for disability

discrimination, retaliation, intentional infliction of emotional distress, and

negligent supervision. The district court entered a summary judgment in favor of

the City. We affirm.

                                 I. BACKGROUND

      Kevin Roddy was a patrol officer employed by the police department of the

City of Villa Rica, Georgia. While off duty, Roddy fell at a restaurant and injured

his back. After his injury, Roddy’s doctor, Ali Mortazavi, told him that he was a

candidate for back surgery, but Dr. Mortazavi would try other measures to avoid

the need for surgery. A few months later, Dr. Mortazavi told Roddy that his back

was not improving and he could cause more serious injury to his back if he were

involved in a physical altercation.

      In April 2010, Roddy gave the City a note from Dr. Mortazavi that stated

that Roddy would need to be absent from work from April 2, 2010, until July 1,

2010, for back surgery. Roddy received twelve weeks of leave under the Family

Medical Leave Act. In an email Roddy sent to several City employees that May,

he wrote that he was “not sure what the future holds for me in my law enforcement




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career.” Roddy stated that, although Dr. Mortazavi told him there was “a

possibility of returning,” that possibility was “slim.”

      In June 2010, Dr. Mortazavi gave Roddy a certificate of work status that

listed January 3, 2011, as the date Roddy could “return to full and normal work

status with no restrictions.” Roddy gave the certificate to Mary Chaffin, the human

resources officer for the City. According to Dr. Mortazavi, although it was

possible that Roddy could return to work several weeks or months before January

3, 2011, that possibility was premised on Roddy undergoing a second back

surgery. Roddy told Chaffin that he may need a second surgery to help “stabilize”

his back. Roddy also told Chaffin that he could not sit or stand for long periods of

time. Roddy also spoke with Michael Mansour, Chief of the police department.

Roddy gave Chief Mansour the certificate, but he made no request of the Chief.

      By the end of June 2010, Roddy had exhausted all of his leave time under

the Leave Act. Chief Mansour believed that, based on all the circumstances,

including the note from Dr. Mortazavi, Roddy could not return to work for at least

four or five more months. Because the department has a limited number of

“budgeted, sworn officer positions,” Chief Mansour could not hire any additional

officers as long as he held a position vacant for Roddy. Around July 22, 2010,

Chaffin sent Roddy a letter that notified him of his termination. The letter stated




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that the City terminated Roddy because he was physically unable to work, but it

would consider him for reemployment if his condition improved.

      On July 28, 2010, Roddy filed a charge against the City with the Equal

Employment Opportunity Commission. Roddy later filed in the district court a

complaint against the City for discrimination and retaliation under the Americans

with Disabilities Act and claims for intentional infliction of emotional distress and

negligent supervision under Georgia law. Roddy later filed an amended complaint

alleging the same claims.

      Roddy testified by deposition that, before April 2010, he never submitted

documentation that he was unable to perform his duties as a patrol officer or that

he needed an accommodation. Roddy testified that, on the same day that Dr.

Mortazavi gave him the certificate of work status, Roddy asked Dr. Mortazavi if he

could return back to “light-duty” work that same day. Although Dr. Mortazavi told

Roddy that he preferred that Roddy not return to work, Roddy could return “if

that’s what [he] need[ed] to do.” Roddy insisted he wanted to return to work “to

make money for [his] family.” Roddy described bringing his certificate of work

status to Chaffin. He explained that, after he gave his certificate to Chaffin, she

asked if he could perform light-duty assignments. He testified that he expressed

willingness to do light-duty work. But he also told Chaffin that he could not sit or

stand for long periods of time. He also informed Chaffin that Dr. Mortazavi


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wanted him to undergo a second surgery. Roddy testified that, on that same day,

he met with Chief Mansour. Although Roddy told Chief Mansour that his return

date of January 3, 2011, was not “set in stone,” Roddy testified that he made no

request of Chief Mansour during that meeting.

      After the City filed a motion for a summary judgment, Roddy filed an

affidavit that contradicted his earlier deposition testimony. In that affidavit, Roddy

stated that he “never told Ms. Chaffin in th[e] conversation or at any other time

that [he] couldn’t sit or stand for any length of time or for more than just a few

minutes at a time.” Roddy stated that, after he gave him his certificate, Roddy told

Chief Mansour that he might be able to return to light-duty work before January 3,

2011. Roddy also stated that he told Chief Mansour that Dr. Mortazavi “was

alright with me working as an Investigator from a medical standpoint” and that, if

there was no investigator position available, he would “like to be given some

additional leave.”

      Chaffin testified by deposition that she asked Roddy if he could perform

light-duty work, and he responded that he could not. She testified that she did not

ask Roddy whether the return date on the certificate was a “hard-and-fast date,” but

instead “believe[d] what the doctor[] wrote down.” Chaffin testified that the last

information she received from Roddy about his health was the June 11 certificate

from Dr. Mortazavi that stated that Roddy could not return to work until January 3,


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2011, and that she has never received a note from Dr. Mortazavi that released

Roddy to return to work. She also testified that, after Roddy gave her the

certificate, she called Chief Mansour to let him know that she had received the

certificate. After the call to Chief Mansour, she had no further discussions about

Roddy’s employment status. In her declaration, Chaffin provided more details

about her call to Chief Mansour and stated that she told Chief Mansour that Roddy

had told her that he could not perform light-duty work.

      Chief Mansour testified by deposition that, after Roddy gave him the

certificate, Roddy did not tell him that Dr. Mortazavi did not want Roddy to

continue to serve as a patrol officer, nor that Dr. Mortazavi told Roddy that he was

not physically capable of working as a patrol officer, nor that Roddy would

continue to work as a patrol officer if it was necessary. Chief Mansour testified

that Roddy did not tell him that the return date on the certificate “was not a date

that was set in stone.” Chief Mansour testified that Roddy told him that he wanted

to come back to work, but did not know if he would be able. Chief Mansour

testified that Roddy did not tell him that Dr. Mortazavi thought Roddy should be

transferred to the position of investigator after his surgery, and Chief Mansour and

Roddy never discussed any transfer or additional leave time. In an affidavit, Chief

Mansour explained that, after he spoke to Chaffin about Roddy’s certificate, he

spoke to Larry Wood, the city manager, about Roddy’s return date. Chief Mansour


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told Wood that, because he was already short of manpower with Roddy’s absence,

he could not wait until January 2011 without hiring a new officer. Because the

department had a limited number of positions for officers, Chief Mansour could

hire a new officer only if he terminated Roddy.

      Dr. Mortazavi testified by deposition that he never told Roddy he could not

work as a patrol officer, but did advise against it. He testified that it was possible

Roddy could return to work as a patrol officer before January 3, 2011, if Roddy

underwent a second surgery. He testified that, when he scheduled Roddy’s

surgery, he told Roddy there was a chance he could return to work as a patrol

officer, but he “just couldn’t guarantee it.” When he was asked in a questionnaire

by an attorney whether Roddy could “return to his job as a law enforcement

officer” as of August 25, 2010, Dr. Mortazavi wrote “No” and underlined his

answer. Dr. Mortazavi testified that, when he wrote “No,” he was referring to

Roddy’s ability to return to work at that time. Dr. Mortazavi testified that, as of

November 29, 2011, he had released Roddy to work as a detective, but not as a

patrol officer without restrictions.

      The City filed a motion for a summary judgment against Roddy’s complaint.

A magistrate judge recommended that the district court grant the motion. The

magistrate judge recommended that the district court dismiss all alleged violations

that occurred before February 2010 as untimely because Roddy filed his complaint


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with the Equal Employment Opportunity Commission on July 28, 2010, and the

Disabilities Act requires a plaintiff to file a complaint with the Commission within

180 days of the occurrence of an unlawful event. See 42 U.S.C. § 2000e-5(e)(1).

The magistrate judge recommended that the district court grant summary judgment

against Roddy’s claim of failure to provide a reasonable accommodation under the

Disabilities Act because the extended leave requested by Roddy was not

reasonable and there were no investigator positions available when Roddy

allegedly requested an investigator position. The magistrate judge recommended

that the district court grant summary judgment against Roddy’s claim of

discriminatory discharge because Roddy failed to establish that he suffered

unlawful disability discrimination or that the reason for his termination proffered

by the City, his inability to work, was pretextual. The magistrate judge

recommended that the district court grant summary judgment against Roddy’s

claim of retaliation for the same reason. The magistrate judge recommended that

the district court grant summary judgment against Roddy’s claim of intentional

infliction of emotional distress because employment-related activities alone cannot

serve as the predicate for a claim of intentional infliction of emotional distress.

The magistrate judge recommended that the district court grant summary judgment

against Roddy’s claim of negligent supervision because, under Georgia law, a

claim of negligent supervision cannot be predicated on a violation of the


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Disabilities Act. The district court adopted these recommendations and granted

summary judgment in favor of the City.

                          II. STANDARD OF REVIEW

      We review de novo a summary judgment. Schoenfield v. Babbit, 

, 1264 (11th Cir. 1999).

                                III. DISCUSSION

      We divide our discussion in three parts. First, we explain that the City was

entitled to a summary judgment against Roddy’s claim of failure to provide a

reasonable accommodation because he never requested a transfer to the position of

investigator as an accommodation and the extended leave he requested was not a

reasonable accommodation. Second, we explain that the City was entitled to a

summary judgment against Roddy’s claims for disability discrimination and

retaliation because the proffered reason for his termination, Roddy’s inability to

perform his duties as a patrol officer, was undisputed. Third, we explain why the

City was entitled to a summary judgment against Roddy’s claim of intentional

infliction of emotional distress because, under Georgia law, that claim cannot be

predicated on an employment decision alone. Because claims for negligent

supervision cannot be established without another, predicate offense, see MARTA

v. Mosley, 

, 469 (Ga. Ct. App. 2006), and all of Roddy’s other

claims have been dismissed, we need not address whether, under Georgia law, a


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claim of negligent supervision can be predicated on a violation of the Disabilities

Act.

 A. Because Roddy Never Requested a Transfer as an Accommodation and Failed
 To Establish That He Could Return to Work in the Present or Immediate Future,
 the City Was Entitled to a Summary Judgment Against Roddy’s Claim of Failure
                    To Provide a Reasonable Accommodation.

       Roddy argues that there is a genuine issue of material fact as to whether

either a transfer to an investigator position or an extended leave of absence were

reasonable accommodations. Under the Disabilities Act, an employer cannot

discriminate “against a qualified individual on the basis of disability in regard to

job application procedures, the hiring, advancement, or discharge of employees,

employee compensation, job training, and other terms, conditions, and privileges

of employment.” 42 U.S.C. § 12112(a). “[T]o establish a prima facie case of

discrimination under the [Act], [the plaintiff] must demonstrate that she (1) is

disabled, (2) is a qualified individual, and (3) was subjected to unlawful

discrimination because of her disability.” Cash v. Smith, 

, 1305

(11th Cir. 2000). A “qualified individual” is someone with a disability who, “with

or without reasonable accommodation, can perform the essential functions of the

employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).

“[A] plaintiff must show either that he can perform the essential functions of his

job without accommodation, or, failing that, show that he can perform the essential

functions of his job with a reasonable accommodation.” D’Angelo v. ConAgra
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Foods, 

, 1229 (11th Cir. 2005) (internal quotation marks omitted).

“An employer unlawfully discriminates against a qualified individual with a

disability when the employer fails to provide ‘reasonable accommodations’ for the

disability—unless doing so would impose undue hardship on the employer.”

Lucas v. W.W. Grainger, Inc., 

, 1255 (11th Cir. 2001) (quoting

Davis v. Fla. Power & Flight Co., 

, 1305 (11th Cir. 2000)) (citing 42

U.S.C. § 12112(b)(5)(A)). But “the duty to provide a reasonable accommodation

is not triggered unless a specific demand for an accommodation has been made.”

Gaston v. Bellingrath Gardens & Home, Inc., 

, 1363 (11th Cir.

1999).

         1. Roddy Never Requested a Transfer to an Investigator Position as an
                         Accommodation for His Disability.

      We need not address Roddy’s claim that the City failed to provide him a

reasonable accommodation by transferring him to an investigator position because

Roddy did not establish that he made a specific demand for that accommodation,

and the failure to make that specific demand is fatal to his claim. See Welding

Servs. v. Forman, 

, 1356 (11th Cir. 2007) (“This court may affirm

[the grant of a motion for a summary judgment] on any ground supported by the

record.”). After his surgery, Roddy gave his certificate of work status to both

Chaffin and Chief Mansour. Roddy did not request a transfer to an investigator

position from Chaffin when he gave her the certificate, and he testified that he
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made no requests of Chief Mansour during their meeting. Although Roddy stated

in his later-filed affidavit that he requested either additional leave time or a transfer

to an investigator position from Chief Mansour, “[w]hen a party has given clear

answers to unambiguous questions which negate the existence of any genuine issue

of material fact [for summary judgment], that party cannot thereafter create such an

issue with an affidavit that merely contradicts, without explanation, previously

given clear testimony.’” McCormick v. City of Fort Lauderdale, 

,

1240 n.7 (11th Cir. 2003) (emphasis omitted). Because Roddy never requested a

transfer from either Chief Mansour or Chaffin as an accommodation for his

disability, Roddy’s claim of failure to accommodate fails as a matter of law.

Gaston, 167 F.3d at 1363–64.

   2. An Extended Leave Would Not Have Been a Reasonable Accommodation.

      Roddy argues that the district court erred when it found that the extended

leave Roddy requested was an unreasonable accommodation. “[A]n employer

d[oes] not violate the [Disabilities Act] by ‘refusing to grant [an employee] a

period of time in which to cure his disabilities’ where the employee ‘sets no

temporal limit on the advocated grace period, urging only that he deserves

sufficient time to ameliorate his conditions.’” Duckett v. Dunlop Tire Corp., 

, 1226 (11th Cir. 1997) (citing Myers v. Hose, 

, 282 (4th

Cir. 1995)). Although a leave of absence may in some circumstances be a


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reasonable accommodation, “an accommodation is unreasonable if it does not

allow someone to perform his or her job duties in the present or in the immediate

future.” Wood v. Green, 

, 1314 (11th Cir. 2003). “The [Disabilities

Act] covers people who can perform the essential functions of their jobs presently

or in the immediate future.” Id.

      The district court did not err. Roddy’s request for an extended leave of

absence would not have allowed him to perform his job in the present or

immediate future. In his email to City officials, Roddy stated that, although Dr.

Mortazavi told him there was “a possibility of returning,” that possibility was

“slim.” On the day Roddy gave Chaffin his certificate of work status, he told her

that he may need a second surgery to help “stabilize” his back, and that he could

not sit or stand for long periods of time. Dr. Mortazavi testified that he did not

clear Roddy to return to work as of August 25, 2010, and had not cleared Roddy to

work as a patrol officer without restrictions as of November 21, 2011. Mortazavi

also testified that the date of January 3, 2011, was “purely a guess,” and that he

“frequently adjust[s] these dates as we go along during the healing process”

because he “really ha[s] no way to know when a person exactly heals or what kind

of complication they have after surgery.”




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    B. Because Roddy Failed To Establish That the Proffered Reason for His
Termination Was Pretextual, the City Was Entitled to a Summary Judgment on the
             Claims for Discriminatory Discharge and Retaliation.

      Roddy argues that there is a genuine issue of material fact as to whether the

City terminated him because of his disability and that the reason proffered by the

City was pretextual. “To establish a prima facie case of discrimination under the

[Disabilities Act], 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.” Earl v. Mervyns, Inc., 

, 1365 (11th Cir. 2000). “To

establish a prima facie case of retaliation, a plaintiff must show: (1) statutorily

protected expression; (2) adverse employment action; and (3) a causal link between

the protected expression and the adverse action.” Stewart v. Happy Herman’s

Cheshire Bridge, 

, 1287 (11th Cir. 1997). When a plaintiff

establishes a prima facie claim of disability discrimination or retaliation, the

burden of production shifts to the defendant to provide “legitimate,

nondiscriminatory reasons” for the purported discrimination. See Standard v.

A.B.E.L. Servs., Inc., 

, 1331 (11th Cir. 1998); Stewart, 117 F.3d at

1287. The plaintiff must then introduce evidence “to allow a reasonable fact finder

to conclude that the proffered reasons were not actually the motivation.” Standard,

161 F.3d at 1332; see also Stewart, 117 F.3d at 1287. The plaintiff can rebut the

proffered reasons “(1) by showing that the legitimate nondiscriminatory reasons


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should not be believed; or (2) by showing that, in light of all of the evidence,

discriminatory reasons more likely motivated the decision than the proffered

reasons.” See Standard, 161 F.3d at 1332.

      The City stated that the reason Roddy was terminated was his physical

inability to return to work, and Roddy failed to establish that this reason is

pretextual. In the letter terminating Roddy, the City stated that Roddy was being

terminated “[b]ased on [his] inability to perform the tasks of [his] position.” The

City explained that it terminated Roddy because he “was unable to return to work

in any capacity, and his doctor indicated that he would not be able to return [to]

work for at least six months.” Although Roddy argues that there is “a major

factual dispute in the evidence” as to whether “Chief Mansour and Mary Chaffin

believed/understood that [Roddy] was unable to continue working in any

capacity,” the record establishes no such dispute. Chief Mansour testified that

Roddy told him that, although he wanted to return to work, he did not know if he

would be able to do so. Chaffin testified that she never received a note from Dr.

Mortazavi that released Roddy to return to work. Roddy’s email to City officials

stated that the possibility of returning to law enforcement was “slim.” Dr.

Mortazavi testified that, as of August 25, 2010, he had not cleared Roddy to return

to work. And Roddy testified that he told Chaffin that he could not sit or stand for

long periods of time. Although Roddy stated in his later-filed affidavit that he


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never told Chaffin “that I couldn’t sit or stand for any length of time or for more

than just a few minutes at a time,” Roddy cannot create a genuine issue of material

fact by filing an affidavit that contradicts his earlier deposition testimony. See

McCormick, 333 F.3d at 1240 n.7.

      Roddy argues that Chaffin had no basis to believe that Roddy was unable to

return to work when he was terminated, but the record establishes otherwise.

Chaffin testified that she understood that Roddy was unable to return to work

because he was on short-term disability and was “‘probably’ going onto long-term

disability.” Chaffin also testified that the last information she received from

Roddy about his health was the June 11 certificate from Dr. Mortazavi, which

stated that Roddy could not return to work until January 3, 2011, and that she has

never received a note from Dr. Mortazavi that released Roddy to return to work.

Although Roddy argues that he told Chief Mansour and Chaffin that his return to

work on January 3, 2011, was only an estimate, that fact does not establish that

Roddy could return to work at the end of his leave period. Because Roddy failed

to establish that the legitimate reason proffered by the City for his termination was

pretextual, the district court correctly granted a summary judgment against

Roddy’s claims of disability discrimination and retaliation.




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  C. Because a Claim of Intentional Infliction of Emotional Distress Cannot Be
Predicated on an Employment Decision Alone, the City Was Entitled to a Summary
                         Judgment Against That Claim.

      Roddy argues that Georgia law allows for claims for intentional infliction of

emotional distress based on discriminatory, retaliatory, or harassing conduct. In

Georgia, to prevail on a claim of intentional infliction of emotional distress, a

plaintiff must establish that “(1) the conduct giving rise to the claim was

intentional or reckless; (2) the conduct was extreme and outrageous; (3) the

conduct caused emotional distress; and (4) the emotional distress was severe.”

Steed v. Fed. Nat’l Mortg. Corp., 

, 851 (Ga. Ct. App. 2009). “The

defendant’s conduct must be so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community. Whether a claim rises to the requisite level of

outrageousness and egregiousness to sustain a claim of intentional infliction of

emotional distress is a question of law.” Frank v. Fleet Fin., 

, 720

(Ga. Ct. App. 1999) (internal quotation marks and citation omitted). “Georgia

courts have held that an employer’s termination of an employee—however

stressful to the employee—generally is not extreme and outrageous conduct.”

Clark v. Coats & Clark, Inc., 

, 1229 (11th Cir. 1993) (citing ITT

Rayonier v. McLaney, 

, 612 (Ga. Ct. App. 1992)).




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      The record does not establish that the City subjected Roddy to any extreme

and outrageous conduct. Although Roddy was terminated, he “was not subjected

to any abuse or otherwise treated with disrespect.” Id. His termination alone does

not rise to the level of “extreme and outrageous conduct” upon which a claim of

intentional infliction of emotional distress can be maintained.

      Additionally, the record does not establish that any emotional distress

suffered by Roddy was severe. Although “the frustration associated with [losing]

one’s job . . . is understandable,” that frustration alone is not “sever[e].” Jones v.

Fayette Family Dental Care, Inc., 

, 91 (Ga. Ct. App. 2011). When

describing his emotional distress, Roddy explained that he “got in a depression

mode that you wouldn’t never believe.” He described the food drive his church

hosted for him and his family as “downgrading.” He also testified that he had

trouble sleeping. The kind of distress described by Roddy, although unfortunate, is

akin to the distress ordinarily associated with the loss of a job, and Georgia courts

have held that that kind of distress is not “severe.” See id.

                                 IV. CONCLUSION

      We AFFIRM the summary judgment in favor of the City.




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