[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          OCTOBER 30, 2009
                             No. 08-15901                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 06-00566-CV-4-SPM-WCS

TAWANA MICHELLE DICKEY,


                                                           Plaintiff-Appellant,

                                  versus

DOLLAR GENERAL CORPORATION,
DOLGENCORP, INC., a wholly
owned subsidiary of Dollar
General Corporation,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________
                            (October 30, 2009)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
       Pro se plaintiff-appellant Tawana Dickey appeals from the district court’s

grant of summary judgment in favor of her former employer on her disability

discrimination and retaliation claims, brought under the Florida Civil Rights Act

(“FCRA”), Fla. Stat. §§ 760.10(1)(a) and (7).1

       In her complaint, Dickey alleged that her former employer discriminated

against her based on her medical diagnosis of sarcoidosis, an immune system

disorder, and that she was ultimately terminated from her cashier job in retaliation

for filing her claim with the Florida Commission on Human Relations (FCHR).

       The district court granted summary judgment, finding that Dickey failed to

establish a prima facie case of discrimination or retaliation. The district court

found that Dickey did not meet her burden to show (1) a disability that

substantially limited a major life activity, and (2) that she was a qualified

individual because she could not perform the essential functions of her job with or

without reasonable accommodation.2 With respect to the retaliation claim, the

district court found that Dickey failed to prove causation because she knew before

she filed her FCHR claim that she was going to be terminated for her inability to

do the work and her failure to provide a certificate of fitness to return to work.

       1
           The district court exercised diversity jurisdiction over the complaint. 28 U.S.C.
§ 1332.
      2
          The only accommodation Dickey suggested was to have another employee perform her
lifting duties. The district court concluded that this accommodation was unreasonable.

                                                  2
This appeal followed.

       On appeal, Dickey argues that she sufficiently demonstrated a disability and

that she could perform the essential functions of the cashier job with a reasonable

accommodation. She further argues that she introduced evidence sufficient to

support her claim that she was terminated in retaliation for filing her discrimination

complaint.

       We review a district court order granting summary judgment de novo,

viewing all of the facts in the record in the light most favorable to the non-moving

party. Brooks v. County Comm’n of Jefferson County, Ala., 

, 1161-

62 (11th Cir. 2006). Summary judgment is appropriate where the moving party

demonstrates, through “pleadings, interrogatories, and admissions on file, together

with the affidavits, if any,” that no issue of material fact exists, and it is “entitled to

judgment as a matter of law.” Fed. R. Civ. P 56(c).

       I. Discrimination

       Disability discrimination claims under the FCRA are analyzed under the

same framework as the Americans With Disabilities Act (ADA). Greenberg v.

BellSouth Telecomms, Inc., 

, 1263-64 (11th Cir. 2007). “In order to

establish a prima facie case of discrimination under the ADA, [a plaintiff] must

demonstrate that [she] (1) is disabled, (2) is a qualified individual, and (3) was



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subjected to unlawful discrimination because of [her] disability.” 

(citation omitted).3

       A plaintiff qualifies as disabled under the ADA “if [s]he has ‘a physical or

mental impairment that substantially limits one or more of the major life

activities[.]’” 

A person is “substantially limited” in her ability to work

if she is “significantly restricted in the ability to perform either a class of jobs or a

broad range of jobs in various classes.” Cash v. Smith, 

, 1306 (11th

Cir. 2000).

       To avoid summary judgment in a disability discrimination case, the plaintiff

must provide evidence sufficient for a jury to find that she was “a qualified

individual with a disability,” meaning that she was “otherwise qualified” for the

job in that she could perform the essential functions of that job with or without

reasonable accommodation. Lucas v. Grainger, 

, 1255-56, 1258

(11th Cir. 2001) (citations 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. . . . An accommodation can qualify as


       3
         All of the conduct alleged in Dickey’s complaint occurred prior to the effective date of
the ADA Amendments Act of 2008 (“ADAAA”), Pub.L. No. 110-325, 122 Stat. 3553 (2008),
which became effective on January 1, 2009. Dickey has not asserted that the Act should be
applied retroactively, and we therefore do not address the possible retroactivity of the ADAAA.

                                                4
‘reasonable,’ and thus be required by the ADA, only if it enables the employee to

perform the essential functions of the job.” 

      Here, the district court properly concluded that Dickey failed to establish a

prima facie case of discrimination. Assuming for the sake of argument that Dickey

was disabled, Dickey failed to show that she was a qualified individual who could

perform the essential functions of her job with or without a reasonable

accommodation.

      Dickey admitted that her medical condition prevented her from lifting more

than 15 pounds or standing for long periods of time, which she knew were essential

requirements of the position when she was hired. The only accommodation

Dickey requested was that someone else perform all the significant lifting tasks

otherwise assigned to her. Such an accommodation was not reasonable. “An

employer is not required by the ADA to reallocate job duties in order to change the

essential functions of a job.” Holbrook v. City of Alpharetta, Ga., 

,

1528 (11th Cir. 1997).

      Because Dickey failed to show that she was a qualified individual or that

Dollar General refused to make a reasonable accommodation, summary judgment

on Dickey’s disability claim was appropriate and we affirm the district court’s

ruling on this issue.



                                           5
       II. Retaliation

       A plaintiff can establish a retaliation claim through either direct or

circumstantial evidence.4 Damon v. Fleming Supermarkets of Florida, Inc., 

, 1358 (11th Cir. 1999). Direct evidence is defined as “evidence, which,

if believed, proves the existence of a fact in issue without inference or

presumption. Evidence that only suggests discrimination [or retaliation], or that is

subject to more than one interpretation, does not constitute direct evidence.”

.

       Proceeding with direct evidence has been referred to as the “traditional

framework” for proving discrimination and requires the plaintiff produce evidence

from which the trier of fact could conclude, more likely than not, that an adverse

employment decision was made based on a protected characteristic. See Wright v.

Southland Corp., 

, 1289-90 (11th Cir. 1999). If the plaintiff is

successful in carrying this initial burden, the trier of fact is required to consider all

of the evidence and determine whether a protected personal characteristic was the


       4
           The McDonnell Douglas Corp v. Green, 

, 

, 

(1973), burden-shifting analysis applies to cases involving circumstantial evidence. The plaintiff
must first show that she established a prima facie case of retaliation. The employer then puts
forth a legitimate, non-retaliatory reason for its decision. The burden then shifts back to the
plaintiff to show that the reason given was a pretext for retaliation. Goldsmith v. Bagby Elevator
Co., Inc., 

, 1277 (11th Cir. 2008). The McDonnell Douglas burden shifting and
pretext analysis does not apply to claims of direct evidence of retaliation. 

.


                                                6
cause of an adverse employment decision vel non. Id.; see also Merritt v. Dillard

Paper Co., 

, 1189 (11th Cir. 1997) (“Where the non-movant presents

direct evidence that, if believed by the jury, would be sufficient to win at trial,

summary judgment is not appropriate even where the movant presents conflicting

evidence.”) (citations omitted).

      Here, in her opposition to summary judgment, Dickey provided sworn

testimony that a Dollar General district manager expressly informed her in a phone

call that she was terminated, in part, because she had filed a claim with the FCHR.

This proffer constitutes direct evidence because finding a retaliatory motive based

on this statement requires no inference or presumption. Because the district court

analyzed the claim only under the burden-shifting analysis applicable to

circumstantial evidence, the district court’s ruling regarding Dickey’s retaliation

claim must be reversed and the case remanded for further proceedings, as direct

evidence sufficient to create a genuine issue of material fact precludes summary

judgment under our precedent. 

. On remand, the district

court should consider whether or not the protected activity was the cause of

Dickey’s termination.

AFFIRMED IN PART, REVERSED IN PART.




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