FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 25, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-15600

Non-Argument Calendar

________________________

D. C. Docket No. 07-21095-CV-AJ

ASENCION LUNA,

Plaintiff-Appellant,

versus

WALGREEN COMPANY,

d.b.a. Walgreens,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(September 25, 2009)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

In this case, Asencion Luna seeks relief against Walgreen Company
(“Walgreens”) under the Americans with Disabilities Act of 1990 (“ADA”), 42

U.S.C. § 12101 et seq.. In her complaint, she alleged that Walgreens discriminated

and retaliated against her, in violation of the ADA, on the theory that (1) she

suffered from back and knee problems, which required her to sit at work, (2) she

had a record of this impairment, (3) Walgreens regarded her as having a disability,

(4) Walgreens allowed her to use a chair for several years prior to her separation

from the company, and (5) Walgreens both actually and constructively discharged

her. On Walgreens’s motion for summary judgment made at the close of

discovery, the district court, after considering the evidence in the light most

favorable to Luna, found no merit in her discrimination and retaliation claims and

1

granted Walgreens final judgment. Luna now appeals the judgment. We affirm.

I.

In her brief on appeal, Luna argues that the district court erred in granting

summary judgment on her disability discrimination claim because the evidence

created a material issue of fact as to whether Walgreens regarded her as having an

impairment that substantially limited her ability to stand while working and

whether Walgreens accommodated such impairment for five years.

“Under the controlling law in this Circuit, the burden-shifting analysis of

 See Holly v/ Clairson Indus., L.L.C., 492 F.3d 1247 (11 Cir. 2007). 1 th

2
Title VII employment discrimination claims is applicable to ADA claims.” Id.

(internal quotation omitted). Under this burden-shifting analysis, the plaintiff must

first establish a prima facie case. “To establish a prima facie case of discrimination

under the ADA, a plaintiff must show: (1) [s]he is disabled; (2) [s]he is a qualified

individual; and (3) [s]he was subjected to unlawful discrimination because of [her]

disability.” Id. at 1255-56. The ADA and the regulations define “disability” as:

(1) a physical or mental impairment that substantially limits one or more of the

major life activities of the individual; (2) a record of such impairment; or (3) being

regarded as having an impairment. 42 U.S.C. §§ 12102 (1) and (2); 34 C.F.R.

104.3(j)(1); Carruthers v. BSA Adver., Inc., 357 F.3d 1213, 1215 (11th Cir. 2004).

The Equal Employment Opportunity Commission (“EEOC”) regulations

interpreting the ADA:

have explained that to be ‘regarded as having such an

impairment’ means that an individual: (1) Has a physical

or mental impairment that does not substantially limit

major life activities but is treated by a covered entity as

constituting such limitation; (2) Has a physical or mental

impairment that substantially limits major life activities

only as a result of the attitudes of others toward such

impairment; or (3) Has none of the impairments defined

in paragraph (h)(1) or (2) of this section but is treated by

a covered entity as having a substantially limiting

impairment.

D’Angelo v. Conagra Foods, 422 F.3d 1220, 1228 (11th Cir. 2005) (citing 29

3
C.F.R. § 1630.2(l)).

For a plaintiff to prevail under the “regarded as” theory of disability, she

must establish two points: (1) that the perceived disability involves a major life

activity, and (2) that the perceived disability is “substantially limiting” and

significant. Sutton v. Lader, 185 F.3d 1203, 1208 (11 Cir. 1999). “Standing” is

th

a major life activity. 42 U.S.C. § 12102(2)(A).

Luna failed to establish that Walgreens regarded her as having a disability

that “substantially limited” her ability to stand, and therefore failed to satisfy the

second point. In 2001 and again in 2004, Luna provided Walgreens with a letter

excusing her from jury duty because she suffered from a degenerative disc disease,

but neither letter indicated that she was disabled or needed to sit at work. On

August 7, 2006 (seven days before she left Walgreens), she gave the manager of

the store where she was working, Alfa King, a note from Dr. Olivia Graves, her

physician, stating that she needed to sit at work due to her degenerative joint

disease, herniated discs, and knee problems. On receiving the note, King told

2

Luna that she, King, would review the note with Jorge Morales, her district

manager and thereafter would get back to her. Luna concedes that the doctor’s

note was the first real notice the company received that she needed to sit at work.

 Nothing in Dr. Graves’s note indicated how long, or for what intervals, Luna was either 2

able to, or not able to, engage in any physical activity.

4
This concession is consistent with testimony Walgreens employees gave on

deposition; they said that they did not perceive Luna as having a disability, much

less one that substantially limited her ability to stand.

Luna’s argument that Walgreens accommodated her disability for five years

by providing her with a chair is not supported by the record. In her deposition,

Luna conceded that the chair was not placed in the pharmacy because of any

specific request that she made. In an August 13, 2006 email to Jorge Morales,

Luna formally requested an accommodation and asked for a response to her request

within five days. She infers from Morales’s failure to respond before the five-day

period expired that the company regarded her as being substantially limited in her

ability to stand. In our view, that inference cannot be drawn.

In sum, we conclude that, when considered in a light most favorable to

Luna, the evidence did not establish that Walgreens regarded Luna as disabled, as

having a disability that “substantially limited” her disability to stand.

II.

Luna contends that the district court, in rejecting her retaliation claim, erred

in considering only her actual and constructive discharge theories and ignored her

claim that Walgreens’s conduct had a materially adverse effect on her under

Burlington Northern and Santa Fe Ry. Co. v. White, 543 U.S. 53, 68, 126 S.Ct.

5
2405, 2415, 165 L.Ed.2d 345 (2006). Luna believes that the district court erred in

failing to consider Walgreens’s conduct after removing the chairs from the

pharmacy on August 2, 2006, but prior to her leaving the company twelve days

later, which forced her to work throughout the day under intolerable pain while

other employees were allowed to use a chair temporarily. Luna argues that the

company’s conduct would, under the Burlington standard, dissuade a worker in her

situation from requesting a reasonable accommodation.

“The ADA provides that ‘no person shall discriminate against any individual

because such individual has opposed any act or practice made unlawful by the

ADA or because such individual made a charge . . . under the ADA.’” Lucas v.

W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001) (quoting 42 U.S.C.

§ 12203(a)). In order to show a prima facie case of retaliation, a plaintiff must

show that: (1) she engaged in a statutorily protected expression; (2) she suffered an

adverse employment action; and (3) there was a causal link between the adverse

action and her protected expression. Lucas, 257 F.3d at 1260. The Supreme Court

has interpreted the second prong as requiring a plaintiff to show that “a reasonable

employee would have found the challenged action materially adverse, which . . .

means it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington, 543 U.S. at 68, 126 S.Ct. at

6
2415 (quotations and citations omitted) (announcing “materially adverse” element

for Title VII claims). Under Burlington, “the type of employer conduct considered

actionable has been broadened from that which adversely [a]ffects the plaintiff’s

conditions of employment or employment status to that which has a materially

adverse effect on the plaintiff, irrespective of whether it is employment or

workplace-related.” Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir. 2008).

However, an employee still may satisfy the second prong by showing an

actual or constructive discharge. “[T]he inquiry as to whether actual termination

has occurred involves analysis of the employer’s intent.” Thomas v. Dillard Dep’t

Store, 116 F.3d 1432, 1434 (11th Cir. 1997). “Whether an actual termination has

occurred is determined in light of the particular circumstances of the controverted

job action.” Id. (“An actual discharge . . . occurs when the employer uses

language or engages in conduct that ‘would logically lead a prudent person to

believe his tenure has been terminated.’”) (citing Chertkova v. Connecticut General

Life Ins. Co., 92 F.3d 81, 88 (2d. Cir. 1996)). In Garrett v. Univ. of Ala. at

Birmingham Bd. of Trs., 507 F.3d 1306, 1316 (11th Cir. 2007), we reasoned that a

supervisor’s statement, that the plaintiff “did not look well and she should leave

work and go home,” did not constitute an adverse employment action, but only a

statement of concern for the employee’s fatigue at work.

7
“To prove a constructive discharge, a plaintiff must demonstrate that

working conditions were so intolerable that a reasonable person in her position

would have been compelled to resign.” Griffin v. GTE Fla., Inc., 182 F.3d 1279,

1283 (11th Cir. 1999). Unless the employer is given sufficient time to remedy the

situation, a constructive discharge generally will not be found to have occurred.

Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996).

The district court correctly held that, given the record before it, Luna had not

established a prima facie case of retaliation. While her chair request was a

protected expression and thus satisfied Lucas’s first prong, there is no evidence in

the record to the effect that she suffered a materially adverse employment action,

Lucas’s second prong. First, Walgreens neither actually discharged nor

constructively discharged Luna. During the morning of August 14, 2006, Luna

went to the EEOC office and told an investigator there that she was going to meet

with her supervisor that afternoon to discuss returning to work with a reasonable

accommodation. At 2:05 p.m., she came to work and requested a chair because she

had knee and back pain. She told Patricia Brito, the store’s assistant manager, that

King, the manager, had not authorized her to use a chair, and Brito’s response was

that she could not have a chair. She said that King instructed her not to allow

employees to use a chair and that if Luna could not stand, she should “punch out

8
and leave,” which she did. Luna’s discharge theory relies on the belief that when

Brito said this, Brito was firing her. Luna concedes, however, that Brito lacked the

authority to fire her, and the words “punch out and leave” would not lead a

reasonably prudent person to believe that she was being fired. See Garrett, 507

F.3d at 1306; Thomas, 116 F.3d at 1434. Moreover, Luna admitted that no one at

Walgreens ever terminated her employment.

Second, the district court did not err in failing to apply her claim under the

relaxed Burlington standard. The court looked to Burlington, but found that Luna

had presented but two arguments, neither of which had merit: actual and

constructive discharge.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

9