Davis v. Florida Power & Light Co.

Citation205 F.3d 1301
Decision Date10 March 2000
Docket NumberNos. 99-4076,99-10524,s. 99-4076
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Parties(11th Cir. 2000) MARVIN DAVIS, Plaintiff-Appellant, v. FLORIDA POWER & LIGHT CO., a Florida Corporation, Defendant-Appellee

Appeals from the United States District Court for the Southern District District of Florida

Before BLACK and HULL, Circuit Judges, and GOODWIN*, Senior Circuit Judge.

HULL, Circuit Judge:

Plaintiff Marvin Davis ("Davis") appeals the entry of judgment for Defendant Florida Power & Light Company ("FPL") on his employment discrimination claims under the American with Disabilities Act of 1990 ("ADA"). After review, we affirm the district court's determination that Davis failed to establish a prima facie case of disability discrimination for two reasons. First, FPL's mandatory overtime work was an essential function of Davis's job of reconnecting electrical power service for FPL's customers. Davis was not a qualified individual protected by the ADA because he could not work the overtime FPL required. Second, Davis's requested accommodations of no or selective overtime work contravened the seniority provisions of his union's collective bargaining agreement and were unreasonable accommodations as a matter of law.


In 1985, Davis began work with FPL, a utility company providing electricity to businesses and residences throughout Florida. Overtime was required at FPL due to the nature of its electric utility business, including the need to maintain a steady flow of power, to remedy power outages, and to reconnect power quickly to its customers. In completing his job application, Davis indicated his agreement to work overtime as a condition of employment.1

A collective bargaining agreement with the International Brotherhood of Electrical Workers ("IBEW") governed FPL's relationship with many employees, including Davis. Because most FPL jobs required overtime, that agreement dictated how FPL assigned overtime work. The agreement provided that FPL must offer voluntary overtime on a most-senior to least-senior basis. If more overtime is needed, mandatory overtime must be imposed on the most junior employees first. The agreement also allowed FPL to require employees to work "holdover overtime," which was assigned to employees already on a job and irrespective of seniority.

In 1990, Davis sustained a back injury on the job while working as a lineman. Davis was placed on "light duty" and later diagnosed as having a herniated disc. After treatment, Davis returned to "full duty." When his lineman duties aggravated his back condition, Davis's doctor suggested that he transfer to a less strenuous position.

In 1991, Davis bid for and obtained a "Street Light Maintenance" position at FPL. After a short time in this position, Davis bid for and obtained another "lineman" position.2 When that job again aggravated Davis's back condition, FPL placed Davis on "light duty." A disagreement arose between Davis and FPL leading to a suspension for a year.

In late 1993, Davis returned to "light-duty" work and in early 1994 bid for a Connect and Disconnect ("C&D") position. The C&D position involves connecting and disconnecting electric service to FPL's customers by installing, removing, and reading electric meters. The C&D position carries out FPL's connect and reconnect policy, which requires that customer orders be processed and executed the same day or within twenty-four hours. Davis met the requirements listed on FPL's form entitled "Essential Job Functions - Connect & Disconnect Man." 3 The form and FPL's written job description for the C&D position do not address working hours or overtime work, but the collective bargaining agreement does. That agreement lists the work schedule of a C&D employee as "five (5) days of eight (8) consecutive hours per day," and expressly grants FPL "the right to require employees to work overtime." In 1996, the 84 C&D employees worked 18,175 hours of overtime, averaging 216 overtime hours each. C&D employees work the third highest average number of overtime hours of some forty different FPL jobs, although almost all jobs require some overtime. The relatively high C&D overtime figure was in part due to FPL's aggressive same-day connect and reconnect policy. The volume and time constraints of C&D work occasionally necessitated simultaneous overtime for all C&D employees.

In 1996, Davis's doctor suggested that he work no more than eight hours a day because of his back condition. Shortly thereafter Davis was suspended. According to Davis, he was suspended because he could not work overtime. FPL contends that Davis was placed on worker's compensation leave because his medication caused drowsiness, interfering with his ability to drive his FPL truck, and because there were no "light-duty" positions available.

Over the next eight months a series of meetings, letters, and negotiations followed. Davis insisted that FPL accommodate his disability by guaranteeing him no overtime or allowing him to decide each day whether to work overtime depending on his personal assessment of his back condition at shift end. FPL refused this request, but offered Davis two options. First, Davis could return to work in a full-duty C&D position with a guarantee of no overtime for sixty days. The IBEW agreed to this sixty-day concession. Second, FPL offered to allow Davis to transfer to another IBEW position or transfer to a non-IBEW position. Pursuant to the collective bargaining agreement, FPL provided Davis with a list of jobs and a seniority roster for him to determine what jobs were open to someone with his seniority. After Davis's contractual right to transfer expired, FPL extended the time period for Davis to request a transfer and provided him with information regarding average amounts of overtime per position.

Davis rejected FPL's offers, and FPL refused Davis's requested accommodations. Davis refused to return to C&D work without one of his accommodations and was terminated in March 1997.


Davis then filed this lawsuit alleging (a) disability discrimination, in violation of the ADA and the Florida Civil Rights Act of 1992, and (b) discriminatory retaliation, in violation of the ADA, Florida's Workers Compensation Law, and Florida's Whistle Blower Act. In an order dated January 7, 1999, the district court granted summary judgment to FPL on all federal and state claims. Davis subsequently filed a motion for relief from judgment under Rule 60(b), addressing only his requested accommodations under the ADA. Fed. R. Civ. P. 60(b). In an order dated March 24, 1999, the district court denied this motion. Davis timely appealed both orders.4 On appeal, however, Davis addresses only his ADA claims and not his state law claims. Furthermore, the issues Davis raises on appeal about his retaliation claims under the ADA lack merit.5 Thus, we address only Davis's disability discrimination claims under the ADA.


The ADA provides that no covered employer shall discriminate against "a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions, [or] privileges of employment." 42 U.S.C 12112(a) (1994). "Indeed, the ADA imposes upon employers the duty to provide reasonable accommodations for known disabilities unless doing so would result in undue hardship to the employer." Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir. 1996) (citing 42 U.S.C. 12112(b)(5)(A)). The ADA places the burden on the employee to establish a prima facie case of disability discrimination. See Holbrook v. City of Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997). To establish a prima facie case of disability discrimination, Davis must prove that (1) he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability. See Morisky, 80 F.3d at 447. As outlined below, we find that the district court correctly held that Davis failed to show that he was a qualified individual with a disability.6

A.Qualified Individual

A "qualified individual with a disability" is an "individual 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). Davis 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 . See Holbrook, 112 F.3d at 1526. Thus, if Davis is unable to perform an essential function of his C&D job, even with an accommodation, he is, by definition, not a "qualified individual" and, therefore, not covered under the ADA. See Cramer v. Florida, 117 F.3d 1258, 1264 (11th Cir. 1997). In other words, the ADA does not require FPL to eliminate an essential function of Davis's job. Therefore, the first issue is whether mandatory overtime work is an essential function of the C&D position.

Whether a function is essential is evaluated on a case-by-case basis by examining a number of factors. The ADA provides that consideration shall be given to the employer's judgment as to what functions of a job are essential and the employer's written description for that job. See 42 U.S.C. 12111(8). The ADA regulations provide that other factors to consider are: (1) the amount of time spent on the job performing the function, (2) the consequences of not requiring the incumbent to perform the function, (3) the terms of the collective bargaining agreement, (4) the work experience of past incumbents in the job, and (5) the current work experience of incumbents in similar jobs. See 29 C.F.R. 1630.2(n)(3) (1999).

After considering these factors, the district court correctly held that mandatory overtime work is an essential function of Davis's C&D position. First, FPL deems mandatory overtime...

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