Cheryl Russell v. Sybil Thomas, et al

Filing

Opinion issued by court as to Appellant Cheryl R. Russell. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-12194

Date Filed: 01/14/2014

Page: 1 of 5

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12194
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-00267-CG-B
CHERYL R. RUSSELL,
Plaintiff-Appellant,
versus
CITY OF MOBILE POLICE DEPARTMENT, et al.,
Defendants,
SYBIL THOMAS,
in her official and individual capacities as
Lieutenant and Radio Communications Officer Supervisor,
CITY OF MOBILE,
as the administrative and supervising entity
for the City of Mobile Police Department,
Defendants-Appellees.

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Date Filed: 01/14/2014

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________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(January 14, 2014)
Before MARCUS, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Cheryl Russell, a former dispatcher with the City of Mobile Police
Department, appeals the district court’s grant of summary judgment on her claim
that the City of Mobile, Alabama, and Mobile Police Department Lt. Sybil Thomas
(collectively, the “Defendants”) engaged in an improper medical inquiry, in
violation of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §
12112(d)(4)(A). The district court granted summary judgment in favor of the
Defendants on Russell’s improper medical inquiry claim on the ground that Russell
failed to show that she suffered any damages or injury as a result of any alleged
improper inquiry. On appeal, Russell disputes the district court’s conclusion,
claiming that she became faint and had to request medical attention as a result of
the allegedly improper medical inquiry. 1 After careful review, we affirm.

1

Russell raised numerous ADA-related claims below, but on appeal, her arguments focus
entirely upon the denial of her improper inquiry claim under § 12112(d)(4)(A). Therefore, she
has abandoned any argument that the district court erred in granting summary judgment on her
other claims. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir.
2012) (“A passing reference to an issue in a brief is not enough, and the failure to make
arguments and cite authorities in support of an issue waives it.”).
2

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We review a district court’s grant of summary judgment de novo, viewing
all facts in the light most favorable to the non-movant. Ross v. Clayton Cnty., Ga.,
173 F.3d 1305, 1307 (11th Cir. 1999). Under Federal Rule of Civil Procedure 56,
a court will grant summary judgment if a movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a).
The ADA provides that an employee may “not require a medical
examination and shall not make inquiries of an employee as to whether such
employee is an individual with a disability or as to the nature or severity of the
disability, unless such examination or inquiry is shown to be job-related and
consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(A). Notwithstanding
the proscriptions in § 12112(d)(4)(A), an employer may “make inquiries into the
ability of an employee to perform job-related functions.”

42 U.S.C. §

12112(d)(4)(B). An employee may raise a § 12112(d)(4)(A) claim whether or not
she is disabled. Owusu Ansah v. Coca Cola Co., 715 F.3d 1306, 1310 (11th Cir.),
cert. denied, 134 S. Ct. 655 (2013).
Although we have not published a decision holding that a plaintiff-employee
must show damages or injury in order to succeed on a § 12112(d)(4)(A) claim, we
have held that plaintiffs raising claims under § 12112(d)(2)(A), a parallel provision
applicable to job applicants (as opposed to employees), must show damages -3

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emotional, pecuniary, or otherwise. Harrison v. Benchmark Elecs. Huntsville, Inc.,
593 F.3d 1206, 1216-17 (11th Cir. 2010). In Harrison, we determined that where a
plaintiff was not hired -- and provided enough evidence for a reasonable jury to
find that it was because of his responses to allegedly unlawful questions -- he had
shown sufficient damages to withstand summary judgment. See id. at 1217.
As noted, § 12112(d)(2)(A) and (d)(4)(A) are parallel provisions with
similar language and virtually identical prohibitions concerning medical inquiries,
the only difference being that one applies to job applicants and the other to
employees. Thus, we agree with the district court that the proof of damages
requirement set in Harrison equally applies to cases involving allegedly improper
inquiries under § 12112(d)(4)(A).
We also agree that in this case, Russell has not shown that the record
supports her claim that she suffered any injury or damages from any alleged
improper medical inquiry.

As a potential injury resulting from the allegedly

improper inquiry, Russell points to the heated conversation with Mobile Police
Department Lt. Sybil Thomas, alleging that she felt faint and had to request
medical attention, but that argument mischaracterizes the record. According to the
affidavits of Mobile Police Department Radio Communications Officers (“RCO”)
Brenda Wilks and Gloria Herrine, and of Lt. Thomas, the heated conversation with
Thomas was unrelated to the medical inquiry, and, rather, concerned an internal
4

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complaint that Russell had lodged against another employee. The excerpts from
Russell’s deposition in the record do not contradict the affidavits. Additionally,
although Russell returned to an RCO office later the same day to request medical
attention, nothing in the record suggests that her request for medical attention was
related to the allegedly improper inquiry.

Thus, Russell has not shown any

genuine dispute of material fact concerning any damages she suffered from any
allegedly improper inquiry under § 12112(d)(4)(A). See Harrison, 593 F.3d at
1216-17.2
As for Russell’s assertion that a jury should be allowed to decide whether
other symptoms that she suffered -- namely, depression and mood changes -- were
the proximate result of the alleged § 12112(d)(4) violation, we are unpersuaded.
Russell testified that she suffered those particular symptoms because of her
Graves’ disease, and nothing else in the record suggests that she suffered
depression or any other malady because of the alleged § 12112(d)(4)(A) violation.
Accordingly, the district court properly granted summary judgment because
Russell failed to show that she suffered any injury or damages as a result of the
alleged § 12112(d)(4)(A) violations.
AFFIRMED.
2

Russell also suggests, in the facts section of her brief, that, on July 14, 2009, the
paramedics provided a copy of her medical report to her supervisors. Even if true, however,
Russell would still have to prove that she suffered damages or injury as a result of the improper
inquiry, which she has not done. See id.
5