Case: 14-14863   Date Filed: 06/10/2015   Page: 1 of 20


                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14863
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:13-cv-00260-AT



PIERRE R. CAZEAU,

                                                            Plaintiff-Appellant,

                                  versus

WELLS FARGO BANK, N.A.,

                                                          Defendant-Appellee.

                       ________________________

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

                              (June 10, 2015)

Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Pierre Cazeau, proceeding pro se, appeals the district court’s order granting

summary judgment in favor of his former employer, Wells Fargo Bank, N.A.

(“Wells Fargo”), in his suit alleging federal claims of retaliation, discriminatory

pay, and discrimination on the basis of his national origin, disability, and gender.

On appeal, he raises various challenges to the district court’s judgment. After

careful review, we conclude that summary judgment was properly granted on all

claims and therefore affirm.

                                 I. Background

      Cazeau, a male of Haitian origin, worked as a teller at a Wells Fargo bank

branch in Conyers, Georgia. He began working for Wells Fargo in 2004, and had

been at the Conyers branch since 2006. In December 2009, Chris Williams, an

African-American female, became Cazeau’s immediate supervisor. Williams, a

Service Manager, reported to the Store Manager, Mike Peoples, a Caucasian male.

Cazeau was promoted to Lead Teller in March 2011.

      In January 2012, Cazeau submitted a letter to Peoples complaining about

harassment and bullying at the Conyers branch. In the letter, Cazeau alleged that

Williams had accused him of stealing, had talked to him like a child, and had made

comments about his needing to take medication. He also alleged that two other

bank tellers bullied him, called him names, made similar comments about

medication, and made “homosexual remarks.”           Cazeau then discussed these


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allegations with a human-resources representative. At the end of January 2012,

Peoples met with Williams and Cazeau to discuss the situation.

      At his deposition, Cazeau testified that Williams, in addition to other

bullying and harassing comments, also had made fun of his national origin, telling

him, “This is America; you need to speak English,” when he spoke Creole with his

wife or with Haitian customers. Further, Cazeau testified, Williams questioned his

immigration status and asked him whether he married to get immigration papers.

      In January 2012, Cazeau applied for the position of Service Manager at

another Wells Fargo branch. Cazeau was not hired or interviewed for the position.

The Wells Fargo recruiter who reviewed the applications testified that he did not

select Cazeau to be interviewed because of an internal policy limiting eligibility to

employees who had been in their current position for at least twelve months, unless

the requirement is waived by a manager or by human resources. A non-Haitian

female was hired in February 2012.

      Cazeau filed a charge of discrimination based on national origin, disability,

and retaliation with the Equal Opportunity Employment Commission (“EEOC”) on

April 16, 2012. Cazeau alleged that he had been subjected to harassment at work

and denied the Service Manager position.

      In April 2012, Cazeau went on paid medical leave for anxiety and

depression. That leave expired in August. Thereafter, he transitioned to unpaid


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medical leave. He received a letter from Wells Fargo on August 16, 2012, stating

that he had exhausted his twelve weeks of leave and job-protection rights under the

Family and Medical Leave Act as of July 6, 2012. He received another letter in

September stating that he had been approved for unpaid leave through October 15,

2012, which was the date his physician indicated he could return to work.

      Cazeau called Peoples in September 2012 to talk about returning to work.

During that discussion, Cazeau learned that Wells Fargo had filled his position,

leaving him without a job to which to return. Peoples told Cazeau to contact

human resources.

      Cazeau called human resources on October 10, 2012, and was told that

someone would follow up with him. No one called him back, however, and he

never followed up. Several days later, Cazeau received a letter from Wells Fargo

stating that he had been placed on “job search” leave, which would last through

January 13, 2013, or until he found a position. The letter states that Cazeau would

be contacted by the “Wells Fargo Career Connection Team” to provide information

about the job-search process, and it provides details for accessing online

information about available positions with Wells Fargo. Cazeau did not apply for

any position. His employment was terminated effective January 15, 2013.

      Cazeau filed a second EEOC charge in December 2012, alleging

discrimination on the basis of race, national origin, sex, disability, and retaliation,


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based on his position being filled in August and his belief that he was being paid

less than a female teller. He amended the charge in January 2013 to allege that

Wells Fargo had failed to provide a reasonable accommodation by placing him into

another position when he was able to return to work in October 2012.

      After receiving his right-to-sue notices from the EEOC, Cazeau brought suit

against Wells Fargo in the United States District Court for the Northern District of

Georgia.   He alleged federal claims of retaliation, discriminatory pay, and

discrimination on the basis of national origin, gender, and perceived disability.

Cazeau brought his claims pursuant to Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e-2(a); the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12112(a); and the Equal Pay Act (“EPA”), 29 U.S.C. § 206.

He later amended his complaint to allege a libel claim under Georgia state law.

Wells Fargo moved for summary judgment on all claims.

      In a comprehensive report and recommendation, the magistrate judge

recommended granting Wells Fargo’s summary-judgment motion. Over Cazeau’s

objections, the district court adopted the magistrate judge’s recommendation and

entered judgment in favor of Wells Fargo. Cazeau now brings this appeal.

                              II. Standard of Review

      “We review de novo a district court’s grant of summary judgment, viewing

all the evidence, and drawing all reasonable inferences, in favor of the non-moving


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party.” Vessels v. Atlanta Indep. Sch. Sys., 

, 767 (11th Cir. 2005).

Summary judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). We liberally construe the pleadings and

briefs of pro se parties. Bingham v. Thomas, 

, 1175 (11th Cir.

2011); Timson v. Sampson, 

, 874 (11th Cir. 2008). Nonetheless,

“issues not briefed on appeal by a pro se litigant are deemed abandoned. 

.

      Construed liberally, Cazeau’s brief argues that Cazeau established genuine

issues of material fact precluding summary judgment on his federal claims under

Title VII, the ADA, and the EPA. It does not address the district court’s decision

to decline to exercise supplemental jurisdiction over Cazeau’s state-law libel claim,

so we consider the issue abandoned. See 

VII Claims

      Title VII prohibits employment discrimination on the basis of race, color,

religion, sex, or national origin.     42 U.S.C. § 2000e-2(a)(1).        Claims of

discrimination may be supported by either direct or circumstantial evidence. When

a claim is based on circumstantial evidence, we generally apply the familiar

burden-shifting framework established in McDonnell Douglas Corp. v. Green, 

, 

(1973). 

. Under this framework,


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the plaintiff must first create an inference of discrimination by making out a prima

facie case. 

then shifts to the employer to articulate a legitimate,

non-discriminatory reason for the challenged employment action.             

employer does so, “the inference of discrimination drops out of the case entirely,”

and the plaintiff then has the opportunity to show that the employer’s proffered

reasons were pretextual. 

The plaintiff’s burden at the pretext stage

“merges with the plaintiff’s ultimate burden of persuading the court that the

employer intentionally discriminated against [him].”           Alvarez v. Royal Atl.

Developers, Inc., 

, 1265 (11th Cir. 2010).

A.    Failure to Promote, Replacement, and Termination

      Generally, an employee establishes a prima facie case of discrimination

under Title VII by showing the following: (1) he belongs to a protected class; (2)

he was subjected to an adverse employment action;            (3) his employer treated

similarly situated employees outside his classification more favorably; and (4) he

was qualified. Holifield v. Reno, 

, 1562 (11th Cir. 1997). When the

claim is based on a failure to promote, a plaintiff makes out a prima facie case by

showing that he applied and was qualified for a position that was filled by someone

outside of his protected class. 

.

      Here, Cazeau made out a prima facie case of discrimination based on

national origin with regard to Wells Fargo’s failure to promote him to Service


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Manager.1 Therefore, the burden shifted to the bank to articulate a legitimate, non-

discriminatory reason for its actions. See 

Wells Fargo asserted that it

did not promote Cazeau because of its internal policy requiring applicants to have

worked at least twelve months in their current position and because another

applicant was more qualified than Cazeau.                 According to the recruiter who

reviewed applications for the position, the candidate who was selected, Renee

Urban, had been in her current position for at least twelve months, had worked for

Wells Fargo for twelve years, and had previously worked in the banking industry

for thirteen years.

       We agree with the district court’s determination that Cazeau did not present

any evidence showing that Wells Fargo’s proffered reasons for not promoting him

were pretext for discrimination. Cazeau contended before the district court that he
       1
          In his brief, Cazeau references five other job-promotion denials, which occurred from
April 2010 to December 2011. And in his complaint, Cazeau also alleged that the bank failed to
promote him to the Service Manager position based on his sex. The district court, however,
found that these claims were not properly before it because Cazeau had not exhausted his
administrative remedies by filing EEOC charges relating to them. See Gregory v. Ga. Dep’t of
Human Res., 

, 1279-80 (11th Cir. 2004). Because Cazeau does not challenge the
court’s rulings on these points, we consider the issue to be abandoned and therefore address only
the Service Manager failure-to-promote claim based on national-origin discrimination. See

.

        We note that, while the denials of the five other positions were distinct adverse actions
that could not reasonably be expected to grow out of an investigation into the denial of the
Service Manager position, see 

(“[A] plaintiff’s judicial complaint is
limited by the scope of the EEOC investigation which can reasonably be expected to grow out of
the charge of discrimination.” (internal quotation marks omitted)), it is a closer question whether
Cazeau’s complaint of sex discrimination was inextricably intertwined with his complaint of
national-origin discrimination, such that it would not be administratively barred. But in any
case, a claim of discrimination based on sex would also fail because Cazeau has failed to show
pretext.
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had received permission from Peoples and Williams to apply for the Service

Manager position, but there is no evidence to rebut the recruiter’s testimony that he

had not been contacted by a manager giving Cazeau permission to apply. Cazeau

cannot establish pretext merely by showing that the decision-maker was mistaken

about the facts underlying the decision. See 

(“The

inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs

and, to be blunt about it, not on reality as it exists outside of the decision maker’s

head.”); Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 

, 1163

(11th Cir. 2006). Cazeau also offered no evidence to rebut Wells Fargo’s other

reason for not hiring him: Urban was more qualified. Accordingly, Wells Fargo

was entitled to summary judgment on this claim.

      Regarding Cazeau’s national-origin and sex discrimination claims based on

the back-filling of his position and his subsequent termination, we agree with the

district court that, even assuming Cazeau was able to show a prima facie case of

discrimination based on these actions, Cazeau did not produce any evidence

showing that Wells Fargo’s proffered explanations were pretextual. See 

. Wells Fargo offered legitimate, non-discriminatory reasons for its

decisions. Cazeau’s position was filled, according to Wells Fargo, because the




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Conyers branch was busy and could no longer function with the vacancy. 2 And

Wells Fargo asserted the Cazeau’s employment was terminated because he failed

to apply for a position before the expiration of his job search leave. Cazeau did not

present any evidence rebutting these reasons. While Cazeau may feel that Wells

Fargo treated him unfairly, “it is not our role to second-guess the wisdom of an

employer’s business decisions—indeed the wisdom of them is irrelevant—as long

as those decisions were not made with a discriminatory motive.” 

. Because Cazeau did not create a genuine issue for trial as to whether

Wells Fargo’s reasons for its actions were pretextual, the district court properly

granted summary judgment.

       Cazeau maintains that the district court should have analyzed his Title VII

claims using a “mixed-motive” framework and that he presented sufficient

evidence to show that his national origin was a “motivating factor” in Wells

Fargo’s adverse decisions. He cites to the Sixth Circuit’s decision in White v.

Baxter Healthcare Corp., 

, 400 (6th Cir. 2008), in which that court

held that the McDonnell Douglas burden-shifting framework does not apply to

Title VII mixed-motive claims.



       2
           Although Cazeau did not allege a claim of interference with his rights under the Family
and Medical Leave Act, 29 U.S.C. § 2615(a), we note that the evidence indicates that Cazeau’s
position was filled after he had exhausted his FMLA leave and corresponding job-protection
rights, see 29 U.S.C. §§ 2612(a)(1) & 2614(a)(1).
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      A mixed-motive case under Title VII is one in which a plaintiff alleges that

an employment decision was motivated by both legitimate and discriminatory

reasons. See 42 U.S.C. § 2000e-2(m). To prevail against an employer in a mixed-

motive case, the plaintiff must “demonstrate[] that race, color, religion, sex, or

national origin was a motivating factor for any employment practice, even though

other factors also motivated the practice.” Id.; see Desert Palace, Inc. v. Costa,

, 94, 

, 2151 (2003).

      Cazeau’s claim would not have survived summary judgment under a mixed-

motive framework. Cazeau has not presented evidence to permit a reasonable jury

to conclude that his national origin or sex was a motivating factor for the adverse

actions. See 42 U.S.C. § 2000e-2(m); Mora v. Jackson Mem’l Found., Inc., 

, 1203 (11th Cir. 2010); see generally Price Waterhouse v. Hopkins, 

, 

(1989).            Although Williams may have made

discriminatory remarks to him, Cazeau has not shown that Williams was involved

in the decisions to deny the Service Manager promotion, to hire a replacement for

his position, or to terminate his employment.

      Accordingly, we affirm the district court’s grant of summary judgment on

Cazeau’s Title VII discrete-action claims.




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B.       Hostile Work Environment

         To establish a claim under Title VII for a hostile work environment, an

employee must show (1) that he belongs to a protected group; (2) that he has been

subject to unwelcome harassment;           (3) that the harassment was based on a

protected characteristic;    (4) that the harassment was sufficiently severe or

pervasive to alter the terms and conditions of employment;          and (5) that the

employer is directly or vicariously responsible for the hostile work environment.

Miller v. Kenworth of Dothan, Inc., 

, 1275 (11th Cir. 2002).

         The requirement that the harassing conduct be severe or pervasive enough to

alter the terms or conditions of employment contains both an objective and a

subjective component.       

    The behavior “must result in both an

environment that a reasonable person would find hostile or abusive and an

environment that the victim subjectively perceives . . . to be abusive.” 

internal quotation marks omitted).

         There is little doubt that Cazeau subjectively perceived the environment at

the Conyers Wells Fargo branch to be abusive. He complained to management

about bullying and harassment he faced from co-workers, and the evidence

indicates that he was reluctant to return to work because of the abuse he faced

there.




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       But the district court properly found that Cazeau had not established an

objectively hostile work environment. Title VII is not a “general civility code.”

See Oncale v. Sundowner Offshore Servs., Inc., 

, 80-81, 

,

1002 (1998). Rather, for harassment to be actionable, it must be “because of . . .

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000-e(2)(1); see 

. So limited, the only evidence of harassment on the basis of

Cazeau’s national origin3 was his testimony that Williams made inappropriate

comments regarding his national origin “more than once.” While such conduct is

improper and is not to be condoned even if it occurred only once, isolated remarks

alone are not sufficient to create a severe and pervasive work environment. Based

on this record, and without additional evidence of the frequency or severity of the

conduct, including whether it interfered with Cazeau’s work performance, a

reasonable jury could not have concluded that Cazeau suffered severe and

pervasive harassment on the basis of his national origin. See 

; see also Faragher v. City of Boca Raton, 

, 788, 

, 2283-84 (1998) (occasional teasing and sporadic use of abusive language are

insufficient to be actionable under Title VII).




       3
          The district court concluded that Cazeau’s claim alleging a hostile work environment
based on sex was administratively barred, and he does not challenge that ruling on appeal. We
therefore consider it to be abandoned. See 

.
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C.    Retaliation

      To make out a prima facie case of retaliation under Title VII, a plaintiff must

show the following: (1) he engaged in a protected activity; (2) he suffered a

materially adverse action;    and (3) a causal connection existed between the

protected activity and the adverse action. Thomas v. Cooper Lighting, Inc., 

, 1363 (11th Cir. 2007). “The burden of causation can be met by

showing close temporal proximity between the statutorily protected activity and

the adverse employment action.” 

“But mere temporal proximity,

without more, must be very close.” 

marks omitted).

      Here, Cazeau has not shown that his first EEOC charge, filed in April 2012,

was causally related to the back-filling of his position in August 2012 or his

termination in January 2013. Because no other record evidence shows that these

adverse decisions were related to his April 2012 EEOC charge, the delay of four to

nine months is too remote, as a matter of law, to show a causal connection. See 

to four month disparity between the statutorily protected expression and

the adverse employment action is not enough.”).

      Cazeau’s second EEOC charge, filed in December 2012, may have been

close enough to his termination to establish causation with respect to his

termination in January 2013. See 

assume without deciding that

Cazeau made out a prima facie case of retaliation. As a legitimate non-retaliatory


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reason for its termination decision, Wells Fargo asserted that Cazeau was

terminated automatically, without input from any of his managers, because he had

not found another position with the bank when his job-search leave ended.

Cazeau’s testimony confirms that he did not apply for a position with the bank

during his job-search leave.

      Cazeau does not point to any record evidence suggesting that Wells Fargo’s

reason for terminating his employment was pretext for retaliatory animus. See

Crawford v. Carroll, 

, 976 (11th Cir. 2008) (stating that once the

employer offers a legitimate reason for its employment action, the plaintiff must

then show that the proffered explanation is pretext for retaliation). Cazeau alleges

that there were two emails in which Peoples stated that he did not think that he

could work with Cazeau after all of the discrimination charges and that he wanted

to change the locks on the bank’s door to prevent Cazeau from returning to work.

But the district court was unable to locate these documents in the record, and

Cazeau was unable to produce them when given the opportunity to do so.

Similarly, they are not in the record on appeal. In any case, we agree with the

district court that, because the evidence does not show that Peoples was involved

in the decision to terminate Cazeau’s employment, the emails would not be

additional evidence of causation even if they were in the record. Accordingly,

summary judgment was properly granted on Cazeau’s retaliation claim.


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                                IV. Equal Pay Act

      “A prima facie case of an EPA violation is shown if an employer pays

different wages to employees of opposite sexes for equal work on jobs requiring

equal skill, effort, and responsibility, and which are performed under similar

working conditions.” Irby v. Bittick, 

, 954 (11th Cir. 1995) (ellipsis,

brackets, and internal quotation marks omitted); see 29 U.S.C. § 206(d)(1). Once a

prima facie case is demonstrated, the employer must prove by a preponderance of

the evidence that the pay differential is justified by one of the exceptions set forth

in the EPA. 

. The four exceptions are “(i) a seniority system;

(ii) a merit system; (iii) a system which measures earnings by quantity or quality of

production; or (iv) a differential based on any other factor other than sex.” 

U.S.C. § 206(d)(1)). If the defendant fails to meet its burden of

showing that sex provided no basis for the wage differential, “the court must enter

judgment for the plaintiff.” 

the defendant meets its burden under the

EPA, “the plaintiff must rebut the explanation by showing with affirmative

evidence that it is pretextual or offered as a post-event justification for a gender-

based differential.” 

that he was paid less for his work as a Teller than two other

female Tellers, Miranda Chavez and Kathy Hill. The district court first determined

that any EPA claim based on a disparity of wages with Chavez was time barred.


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Unless the violation is willful, an EPA action must be commenced within two

years after the cause of action accrued. See 29 U.S.C. § 255(a); Alvarez Perez v.

Sanford-Orlando Kennel Club, Inc., 

, 1164 (11th Cir. 2008) (Fair

Labor Standards Act’s statute-of-limitations provisions apply to EPA claims).

Cazeau does not challenge the district court’s time-bar determination, and has,

therefore, abandoned any argument on that point. See 

. In

any event, as the district court found, the evidence established that Chavez stopped

working as a Teller in October 2010, but Cazeau did not file his lawsuit until

January 2013, by which time the two-year limitation period had expired.4 See 29

U.S.C. § 255(a).

       Regarding Hill, Wells Fargo produced evidence showing that she had

significantly more experience than Cazeau, and experience is a “factor other than

sex.” 

. Specifically, Hill had worked at Wells Fargo since

1999, whereas Cazeau started in 2004. Cazeau did not offer any evidence to

suggest that this reason was pretextual or “offered as a post-event justification for a

gender-based differential.”          See 

      Consequently, the district court

properly granted summary judgment to Wells Fargo on Cazeau’s EPA claims. 5


       4
           There is no evidence to support a “willful violation.” See 29 U.S.C. § 255(a).
       5
          In a response brief to Wells Fargo’s summary-judgment motion, Cazeau also alleged
that he had been denied annual raises, among other things. The district court found that any
claims based on these denials were not properly before it because they were not raised in the
complaint. Cazeau does not challenge this ruling on appeal, so we consider the issue abandoned.
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                       V. Americans with Disabilities Act

      The ADA prohibits employers from discriminating against “qualified

individual[s] on the basis of disability.” 42 U.S.C. § 12112(a). Generally, to

establish a prima facie case of disability discrimination under the ADA, a plaintiff

must show that (1) he is disabled; (2) he was a qualified individual at the relevant

time, meaning he could perform the essential functions of the job with or without

reasonable accommodations; and (3) he was discriminated against because of his

disability. Wood v. Green, 

, 1312 (11th Cir. 2003); see 42 U.S.C.

§ 12111(8) (defining “qualified individual”).     The term “disability” means a

physical or mental impairment that substantially limits at least one major life

activity of such individual, or being regarded as having such an impairment. 42

U.S.C. § 12102(1).

      It is unlawful for an employer to fail to provide “reasonable

accommodations” for a qualified individual’s disability, unless doing so would

impose undue hardship on the employer. Lucas v. W.W. Grainger, Inc., 

, 1255 (11th Cir. 2001). The employee bears the burden of identifying an

accommodation that would allow her to perform the essential functions of her job.

Earl v. Mervyns, Inc., 

, 1367 (11th Cir. 2000). An employer’s “duty

to provide a reasonable accommodation is not triggered unless a specific demand




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for an accommodation has been made.” Gaston v. Bellingrath Gardens & Home,

Inc., 

, 1363 (11th Cir. 1999).

      The district court found that no evidence that Cazeau had, or was regarded

as having, a mental or physical impairment that substantially limited one or more

major life activities. See 42 U.S.C. § 12102(1). In other words, Cazeau was not

“disabled” under the ADA. While he asserts that he was perceived as disabled

because Wells Fargo placed him on temporary medical leave (or short term

disability leave), he does not assert, and the evidence does not show, that Wells

Fargo ever regarded him as substantially limited in any major life activity.

      Assuming, though, that Cazeau was disabled or was perceived as disabled by

Wells Fargo, there is no genuine issue for trial based on Wells Fargo’s failure to

provide an accommodation.        The accommodation that Cazeau identifies was

placement in an open position after he returned from medical leave. However, as

the district court found, Cazeau never requested a specific accommodation.

Cazeau told Wells Fargo generally that he wished to return to work, and Wells

Fargo provided Cazeau with resources and information to apply for available

positions. Cazeau, however, never followed up with Wells Fargo or applied for a

specific, open position after he was cleared to return to work by his doctor.

Because no specific demand for an accommodation was made, Wells Fargo had no




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duty to provide a reasonable accommodation under the ADA. See 

; Willis v. Conopco, Inc., 

, 285 (11th Cir. 1997).

         To the extent that an accommodation was requested, Wells Fargo took

reasonable steps to offer information about available positions, and any breakdown

in the process of identifying an accommodation is attributable to Cazeau. See

Stewart v. Happy Herman’s Cheshire Bridge, Inc., 

, 1287 (11th Cir.

1997) (holding that an employer is not liable where it takes reasonable steps to

provide an accommodation and the employee is responsible for a breakdown in the

process of identifying a reasonable accommodation). In short, the district court

properly granted Wells Fargo’s summary judgment motion on Cazeau’s ADA

claim.

                                           VI. Conclusion

         In short, the district court did not err in granting summary judgment to Wells

Fargo on all of Cazeau’s claims. Cazeau has failed to show that any challenged

employment action was because of his national origin, gender, or perceived

disability, or in retaliation for complaining about such alleged discrimination. See

.

         AFFIRMED. 6




         6
             All other issues not explicitly addressed are without merit.
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