Donald Spence v. City of Fort Pierce

Filing

Opinion issued by court as to Appellant Donald Spence. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-15264

Date Filed: 11/30/2017

Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15264
Non-Argument Calendar
________________________
D.C. Docket No. 2:15-cv-14042-DMM

DONALD SPENCE,
individually,
Plaintiff-Appellant,
versus
CITY OF FORT PIERCE,
individually,
Defendant-Appellee,
FORT PIERCE POLICE DEPARTMENT,
individually,
Defendant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 30, 2017)

Case: 16-15264

Date Filed: 11/30/2017

Page: 2 of 7

Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.
PER CURIAM:
Donald Spence, a former police officer, appeals pro se the summary
judgment against his amended complaint and in favor of the City of Fort Pierce.
Spence complained about retaliation in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2, and of the Americans with Disabilities Act of
1990, id. § 12112(a), (b), and about a hostile work environment and a failure to
accommodate in violation of the Disabilities Act, id. Spence argues that he
presented sufficient evidence to create a genuine issue of material fact. Spence also
argues, for the first time, that his attorney was ineffective and that opposing
counsel engaged in professional misconduct, but we decline to review arguments
that Spence failed to present to the district court. See Narey v. Dean, 32 F.3d 1521,
1526–27 (11th Cir. 1994). We affirm.
Spence joined the Fort Pierce Police Department in February 2008 as a
patrol officer, and he served in that capacity until October 2012 when he injured
his back and shoulder in a car accident. Spence returned to work in a “light duty
capacity” and underwent surgeries on his shoulder that prevented him from driving
or making repetitive movements. Spence’s supervisors and coworkers pestered him
about his work limitations, which led him to file an internal grievance on January
30, 2013, a charge of discrimination with the Equal Opportunity Commission on
2

Case: 16-15264

Date Filed: 11/30/2017

Page: 3 of 7

June 17, 2013, and this civil action.
We review a summary judgment de novo. Moton v. Cowart, 631 F.3d 1337,
1341 (11th Cir. 2011). We view the evidence in the light most favorable to the
non-moving party. Id. Summary judgment is appropriate when the movant
establishes that there is no genuine dispute of a material fact and that it is entitled
to a judgment in its favor as a matter of law. Id.
Spence’s claim that the City violated Title VII fails as a matter of law. Title
VII prohibits retaliation against employees who oppose discrimination based on
“race, color, religion, sex, or national origin.” 42 U.S.C. §§ 2000e-3(a), 2000e2(a)(1). Spence alleged that the City retaliated after he filed grievances about
discrimination based on his disability, which is not a characteristic protected by
Title VII. Spence’s “[u]fair treatment, . . . [which was not] based on race, sex, or
national origin, [was] not an unlawful employment practice under Title VII.” See
Coutu v. Martin Cty. Bd. of Cty. Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995).
Spence failed to establish a prima facie case of a hostile work environment
in violation of the Disabilities Act. Even if we assume, like the district court, that
Spence was disabled, he failed to present substantial evidence that his alleged
harassment was sufficiently severe or pervasive to “ha[ve] the purpose or effect of
unreasonably interfering with [his] work performance or creating an intimidating,
hostile, or offensive environment,” Meritor Savings Bank v. Vinson, 477 U.S. 57,
3

Case: 16-15264

Date Filed: 11/30/2017

Page: 4 of 7

65 (1986). See McCann v. Tillman, 526 F.3d 1370, 1378 (11th Cir. 2008). Spence
alleged that his supervisor asked, “When are you coming back?,” but that inquiry is
not objectively offensive. See id. Spence also alleged that a sergeant remarked,
“We have people who have lost limbs and return faster than you,” “We have a bet
going that [another officer] will be back to work and on the road before you,” and
“You should make it a competition and try to beat him back,” and that other
officers called him “Officer Kantworkski.” But snide offhand comments are not
sufficiently severe to affect the conditions of employment. Spence complained that
someone changed his profile picture on a hospital computer system, but he
admitted that he does not know who performed that act. Spence argues that a
supervisor also violated his light duty limitations by requesting that he unlock,
open, close, and lock the doors of the lobby, but Spence satisfied the request
without difficulty and that isolated incident did not create a hostile working
environment. See id. at 1379. That Spence was asked to hang posters and shred
paper was not actionable because his supervisors withdrew those requests without
incident when Spence explained that the tasks exceeded his medical restrictions.
And the alleged denial of Spence’s requests to identify himself as a police officer,
to wear his uniform, and to carry a gun could not create a hostile environment
because he admitted that he could not perform the duties of a police officer and
that his physician had forbidden him from using a firearm.
4

Case: 16-15264

Date Filed: 11/30/2017

Page: 5 of 7

Spence also failed to establish a prima facie case of discrimination for
failing to accommodate his disability. The City provided Spence a reasonable
accommodation. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.
2001). After Spence’s accident, the City allowed Spence to perform light duties at
the police department and at a substation for more than two and a half years despite
reserving the right to terminate him if he could not resume full duties as a patrol
officer within six months of returning to work. The single incident in which a
supervisor requested that Spence man the doors of the lobby does not prove the
City failed to accommodate him. Spence undertook the job and proved physically
capable of completing it on the single occasion requested. See Stewart v. Happy
Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997).
The City owed Spencer no duty to give him “the accommodation of [his]
choice, but only . . . a reasonable accommodation.” Id. at 1286 (quoting Lewis v.
Zilog, Inc., 908 F. Supp. 931, 948 (N.D. Ga. 1995)). Spence identified the position
of misdemeanor investigator as a potential accommodation, but the position was an
unfunded temporary assignment. Spence also proposed an assignment to the
Detective Bureau, but he applied for the position before his accident and was not
selected for an interview.
Spence also failed to establish that he was retaliated against for protesting
his allegedly hostile work environment. Spence failed to establish a causal
5

Case: 16-15264

Date Filed: 11/30/2017

Page: 6 of 7

connection between certain adverse employment actions and his protected
activities or to establish that the harassment perpetrated immediately after his
protected activities was so severe or pervasive that it created an abusive working
environment. See Gowski v. Peake, 682 F.3d 1299, 1311 (11th Cir. 2012).
Supervisors and coworkers allegedly retaliated by requiring Spence to man the
lobby doors, reprimanding him for not “consulting a detective regarding a sexual
Assault report,” putting the picture of someone else on his hospital pass, searching
his driving record, and transferring him to an undesirable substation, but Spence
did not allege that the incidents occurred within three to four months of filing his
grievance or his charge of discrimination as required to establish causation based
on temporal proximity. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th Cir. 2007). The day after Spence filed his grievance, he allegedly received
notice that he could be terminated within 60 days if he did not return to full duty,
but that notice did not disrupt his employment or his job performance. See Gowski,
682 F.3d at 1312. Spence argues that he was reprimanded for “being involved in a
Motor Vehicle Accident” after filing his grievance, but he does not contend that
the reprimand was unwarranted. Spence also argues, in his reply brief, that he had
to undergo five examinations to obtain disability benefits, but “we do not address
arguments raised for the first time in a pro se litigant’s reply brief.” See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
6

Case: 16-15264

Date Filed: 11/30/2017

Page: 7 of 7

We AFFIRM the summary judgment in favor of the City.

7