Daughtry v. Army Fleet Support LLC et al
MEMORANDUM OPINION. Signed by Honorable Judge Myron H. Thompson on 2/15/13. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
RORY M. DAUGHTRY,
ARMY FLEET SUPPORT, LLC,
CIVIL ACTION NO.
defendants Army Fleet Support, LLC (his employer), L-3
Communications Corporation (Army Fleet’s parent company),
Machinists and Aerospace Workers, District 75 (Daughtry’s
Daughtry asserts claims under the Americans with
Disabilities Act of 1990 (ADA), as amended (42 U.S.C. §§
12111-12117), and the Racketeer Influenced and Corrupt
Organizations Act (RICO) (18 U.S.C. §§ 1961-1968), and he
asserts state-law claims of estoppel, conspiracy, breach
of contract, negligence and wantonness, outrage, and
invasion of privacy.
Jurisdiction is proper under 28
U.S.C. §§ 1331 (federal question) and 1367 (supplemental
jurisdiction) and 42 U.S.C. § 12117 (ADA).
The case is now before this court on the defendants’
I. SUMMARY-JUDGMENT STANDARD
“A party may move for summary judgment, identifying
each claim or defense--or the part of each claim or
defense--on which summary judgment is sought.
shall grant summary judgment 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.”
admissible evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in
favor of that party.
Matsushita Elec. Indus. Co. Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Under Rule 56, the party seeking summary judgment
must first inform the court of the basis for the motion,
at which point the burden then shifts to the non-moving
party to demonstrate why summary judgment would not be
Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d
shifting under Rule 56).
The non-moving party must
affirmatively set forth specific facts showing a genuine
allegations or denials in the pleadings.
Fed. R. Civ. P.
Fort Rucker is a U.S. Army post in southeastern
There, the Army contracts with Army Fleet, a
maintenance and logistical services. The company employs
almost 4,000 active employees, the vast majority of whom
recently, Daughtry was both.
After years of fixing Army
helicopters, Daughtry suffered an injury to his left
shoulder that required surgery and subsequent physical
In his final week of therapy, he suffered a
second injury to the same shoulder, necessitating another
round of surgery.
Responding to complaints of regular
shoulder pain, his doctor ordered him to refrain from
lifting items over 20 to 25 pounds.
When Daughtry’s pain
continued, the doctor decreased the permitted amount to
After Daughtry’s injury and corresponding lifting
restrictions, Army Fleet attempted to accommodate him;
rather than requiring him to continue carrying out all
his duties as an aircraft mechanic, he was assigned
to “parts-turn-in,” one of many duties that are
required of aircraft mechanics.
When handling parts-
turn-in duties, the mechanic receives items of various
sizes and weights that have been turned in by other
employees and shelves them in designated areas.
some of the items Daughtry had to shelve exceeded 15
pounds, he sometimes required assistance from coworkers.
handled on an assignment basis only by aircraft mechanics
including, most importantly, repairing aircrafts.
allowing Daughtry to forgo all his other duties, the
company made an exception to that general rule.
Daughtry worked in the parts-turn-in area exclusively
for a couple years.
Then, a realignment at Fort Rucker,
whereby Army Fleet had to move employees in response to
the government’s changing needs, ended that.
had been working during what the parties call “regular
After Army Fleet employees were moved around
pursuant to the realignment, Daughtry was “bumped” to
“odd work week” in accordance with his seniority in the
He had no objection to the move; it was, he
believed then and seems to believe now, in accordance
with the collective-bargaining agreement (the agreement
between Army Fleet and the union).
After Daughtry was
moved to the odd work week, however, Army Fleet concluded
that there was not a need during that time for him to
work in the parts-turn-in area.
All needed parts-turn-in
duties were handled by persons with greater seniority in
the union than Daughtry.
As there was no longer a need
for parts-turn-in work and as Daughtry was physically
aircraft-mechanic position, the company decided that it
could not continue to employ him in that job.
reviewing certain log books while the company searched
for a permanent position.
The company decided that, despite Daughtry’s physical
restrictions, he would be able to satisfy the needs of
the “aircraft monitor” position.
The job requires little physical exertion; it
also pays far less than Daughtry’s prior job as an
indefinite layoff or less pay, Daughtry begrudgingly
accepted a position as an aircraft monitor.
agreement, Daughtry (represented by union counsel) filed
several grievances against the company regarding the new
position with less pay.
He contended that, under the
agreement (which has language relating to reasonable
accommodations for disabilities that closely tracks the
accommodate his injuries by creating a permanent position
of parts-turn-in work that would pay the same amount as
In other words, he wanted to
continue the pre-realignment status quo, when he held the
aircraft-mechanic position but was not required to carry
out any of the job’s duties besides parts-turn-in.
grievances proceeded to arbitration, and the arbitrator
ruled against Daughtry.
Additionally, Daughtry filed a
complaint with the U.S. Department of Labor’s Office of
Federal Contract Compliance Programs, which also ended in
an unfavorable decision.
Lastly, he filed a state-court
Throughout those proceedings, Daughtry continued to
work as an aircraft monitor.
However, that ended when he
injured his previously uninjured right shoulder.
the earlier injuries to his left shoulder, he again
Following the surgery, his treating
physician concluded that he could no longer perform the
essential functions of either the aircraft-mechanic or
agreed he could not do either job.
Moreover, he began
company’s preexisting substance-abuse policies, precluded
him from working.
He was placed on administrative leave
pursuant to the collective-bargaining agreement.
today, he remains eligible for rehire if a position
becomes available that he can carry out with his physical
restrictions and medication needs.
Daughtry brought this lawsuit charging that Army
Fleet unlawfully failed to accommodate him by failing to
create a permanent parts-turn-in job.
He claims that,
satisfy parts-turn-in duties if he has assistance with
defendants are liable for conspiring to force him into a
entitled and that his union is liable for failing to
Under the ADA, private employers may not discriminate
42 U.S.C. § 12112(a).
accommodations to the known physical ... limitations of
an otherwise qualified individual with a disability who
is an ... employee.”
42 U.S.C. § 12112(b)(5)(A).
other words, if an “otherwise qualified” employee with a
disability requires reasonable accommodations to perform
obligation to make those accommodations.
“A reasonable accommodation ... is one that would
enable an employee with a disability to enjoy an equal
opportunity for benefits and privileges of employment as
are enjoyed by employees without disabilities.”
v. Michelin Tire Corp., 860 F. Supp. 1488, 1492 (M.D.
Ala. 1994) (Thompson, J.).
However, an accommodation is
not “reasonable” if it requires the employer to eliminate
an essential function of a job.
Lucas v. W.W. Grainger,
Inc., 257 F.3d 1249, 1259 (11th Cir. 2001).
employer create a ... new permanent position” for an
employee who cannot carry out the essential functions of
contrast, “if an employer has a ... vacant permanent
position for which the disabled employee is [able to
reasonable accommodation to reassign the employee to that
position,” and, therefore, such reassignment would be
mandated by the ADA.
But, if no such position
exists, the ADA does not require that the employer create
Here, the defendants have presented evidence showing
that Army Fleet satisfied its duties under the ADA.
evidence shows that, after Daughtry’s first injury, he
was unable to carry out the bulk of his duties as an
aircraft mechanic; he could not satisfy the core function
of the job, servicing aircrafts.
He was able to satisfy
only one of the job’s multiple requirements--shelving
assistance from coworkers.
Daughtry does not contest
The ADA does not require Army Fleet to keep
possible accommodation would allow him to carry out the
essential functions of the job.
See Lucas, 257 F.3d at
Moreover, the evidence shows that, unless Army Fleet
violates the union agreement by pushing aside employees
with more seniority than Daughtry, the company has no
need for additional work in parts-turn-in, the sole job
function Daughtry can perform to a limited extent.
position for which the company has no need, nor does the
ADA require that Army Fleet push aside current employees
to create a need.
Howell, 860 F. Supp. at 1492; see also
Hoskins v. Sheriff’s Dep’t, 227 F.3d 719, 730 (6th Cir.
2000) (holding that, on the facts of the case, turning a
temporary “relief position” into a permanent job was not
a reasonable accommodation); Milton v. Scrivner, 53 F.3d
1118, 1125 (10th Cir. 1995) (holding that reasonable
accommodation did not require the employer to violate the
The existence of a reasonable accommodation is an
element of the plaintiff’s case under the ADA, and, if
the plaintiff does not put forth evidence showing a
reasonable accommodation, the defendants are entitled to
judgment in their favor.
See Willis v. Conopco, Inc.,
108 F.3d 282, 286 (11th Cir. 1997).
The defendants have
presented evidence that no such reasonable accommodation
exists for Daughtry.
Now, the burden shifts to him to
put forth evidence showing why that is not the case.
In response, Daughtry has submitted to the court over
1,500 pages of evidence and over 100 pages of briefing.
The briefing ranges in its various parts from convoluted
at best to entirely incoherent at worst.
The court has
possibility of reasonable accommodation, and the court
understands Daughtry to make the following contentions.
mechanic who was injured on the job, John Smith, was
permitted to work in parts-turn-in exclusively (or at
least nearly exclusively) far longer than was Daughtry.
The implication is that Air Fleet’s protestations that it
could not similarly employ Daughtry in parts-turn-in are
See Howell, 860 F. Supp. at 1493 (fact that
employees other than plaintiff were afforded temporary
light-duty work for far longer period than plaintiff
created genuine dispute as to whether employer reasonably
accommodated plaintiff with shorter period).
Daughtry’s purported evidence relating to John Smith
entirely ignores the issue of seniority.
shows that Smith was more senior in the union than
Daughtry, and thus, after the realignment, the more14
senior Smith was permitted to keep working the regular
work week while the more-junior Daughtry was bumped to
See Smith Dep. (Doc. No. 125-19) at 18:2-
odd work week.
Army Fleet could not continue accommodating Daughtry
because, after the realignment and Daughtry’s move to odd
work week, all needed parts-turn-in work was handled by
persons with more seniority than Daughtry.
about Smith does nothing to rebut that fact, and, as
irregularities in Army Fleet’s practices in determining
whether the company could continue to accommodate him
with parts-turn-in work after the realignment.
puts forth some vague evidence that the company’s human
resources department has a policy of “coordinating with
the field manager to determine if there is productive
testimony provides that the human resources department,
longer accommodate him as it had pre-realignment, first
discussed possible alternative accommodations with Rick
Davis, Daughtry’s field manager while he was in partsturn-in,
id. at 138:10-139:15, and two other specified
individuals, Ed Brown and Darlene Whalen, whose roles in
the company are not clear, id. at 163:7-165:1.
Daughtry’s essential contention seems to be that
these discussions were inadequate and Army Fleet somehow
Even if that were the case,
however, it, standing alone, would not create a dispute
accommodation is an element of the plaintiff’s case.
Willis, 108 F.3d at 286.
To establish that element, it
is not enough to show merely that Army Fleet potentially
committed a procedural irregularity in its search for
accommodations; rather, Daughtry must show that there was
accommodation that could have been taken.
See Milton, 53
F.3d at 1125 (“Plaintiffs’ final suggestion, that they be
description of any other jobs that would accommodate his
He merely speculates that he could probably
transfer to something else.”).
Daughtry’s third argument is that Tammie Maddox, who
works in human resources for Army Fleet, “confessed at
her deposition that Rick Davis,” Daughtry’s field manager
for some time, “stated [that] he was able to accommodate
... Daughtry as a mechanic assigned to motor pool.”
Pl.’s Br. (Doc. No. 115) at 18.
If Davis, an Army Fleet
field manager, in fact stated that he could accommodate
To show this purported fact, Daughtry
cited to, but did not quote, a portion of Maddox’s
transcript containing Maddox’s “confession” states the
“Q: Did [Davis] tell you that he was
willing to accommodate [Daughtry] in
“A: I don’t remember.
“Q: ... Did you have any communications
with Rick Davis as to whether he could
positions other than parts turn-in, as
a mechanic at Lowe Field prior to
informing Mr. Daughtry of the Hobson’s
choice in October of 2008?
“A: What’s a Hobson’s choice?
“Q: That’s a fair statement, Tamm[ie].
I’ve heard of attorneys call it that,
and I’m not real sure what that is. I
won’t even try to explain it to you....
Did Mr. Davis state to you that he could
use him in motor pool?
“A: I don’t remember.
“Q: If Mr. Davis says that, do you agree
or disagree with that?
“A: If Mr. Davis said it, I don’t argue
Maddox Dep. (Doc. No. 125-1) at 137:7-140:9.
disparity between Maddox’s “confession” (which Daughtry
claims happened) and Maddox’s actual statements that she
reflects) requires no elaboration.
It is enough to say,
this evidence is insufficient to defeat summary judgment.
Daughtry’s briefing is that, despite the defendants’
replaced him with new hires after he was booted from his
position as an aircraft mechanic assigned to part-turn-in
See Pl.’s Br. (Doc. No. 115) at 37.
words, Daughtry was replaced with people who, given that
they were recently hired, were unquestionably less senior
than Daughtry, and, therefore, the company’s claimed
adherence to the seniority system is mere pretext.
Cotter, a union representative, which, according to the
brief, is exhibit 22 in the record.
appears to be a handwritten letter.
Daughtry intended to cite to exhibit 20.
It seems that
part of the deposition transcript states:
“Q: Is it your understanding that actual
new hires were put in the position of
“A: I do not know that.
“Q: If I were to tell you that was the
case, would that surprise you?
Cotter Dep. (Doc. No. 125-20) at 109:5-10.
court thinks it unnecessary to elaborate on the disparity
reality of the evidence.
The remainder of Daughtry’s arguments is either too
confusing to understand or, although comprehensible, is
not supported by citations to any evidence.
If there is
actual evidence of a reasonable accommodation in the
record, Daughtry has failed to bring it to the court’s
attention, and the court will not scour Daughtry’s 1,500page-plus evidentiary submission, unguided by Daughtry
himself, for possible supporting evidence.
See Fed. R.
Civ. P. 56(c)(1)(A) (“A party asserting that a fact ...
is genuinely disputed must support the assertion by ...
citing to particular parts of materials in the record.”)
(emphasis added) and (c)(3) (“The court need consider
only the cited materials”) (emphasis added).
counsel’s imagination when the cited portions of the
record are contradictory.
As Daughtry failed to show
essential to his ADA claim,
defendants are entitled to
summary judgment on that claim.
See Celotex Corp., 477
U.S. at 323.
Daughtry’s complaint, in shotgun fashion, asserts a
bevy of other causes of action all arising out of the
same events already discussed.1
First, Daughtry asserts a breach-of-contract claim,
1. See Black’s Law Dictionary 1191 (8th ed. 2004)
(defining “shotgun pleading” as “A pleading that
encompasses a wide range of contentions, usu. supported
by vague factual allegations.”); Horn v. Bd. of Educ.,
2010 WL 4340786 (M.D. Ala. Oct. 8, 2010) (Thompson, J.)
(discussing shotgun pleading and its “unacceptable
consequences,” including “[w]asting scarce judicial
between Army Fleet and the union required the company to
provide reasonable accommodations for disabled employees
and that the company breached that obligation.
same reasons already discussed, Daughtry has not put
forth evidence tending to show that Army Fleet failed to
accommodations in excess of the ADA, Daughtry has made no
attempt to show as much.
Second, Daughtry asserts a right to relief pursuant
to the Alabama law doctrine of equitable estoppel.
communicate[d] something in a misleading way, either by
words, conduct, or silence, with the intention that the
communication will be acted on [by another person]” and
communication to his detriment, the person who made the
Lambert v. Mail Handlers Ben. Plan, 682 So. 2d 61, 64
Here, Daughtry contends that the defendants
communicated to him that his position as an aircraft
permanent and that they are therefore estopped from now
supporting that contention.
Moreover, the great weight
of the record that the court has examined belies the
Under RICO, “it is illegal ‘for any person ...
participate, directly or indirectly, in the conduct of
Williams v. Mohawk Indus.,
Inc., 465 F.3d 1277, 1282 (11th Cir. 2006) (quoting 18
U.S.C. § 1962(c)).
“[I]n order to establish a federal
civil RICO violation ..., the plaintiff must satisfy
four elements of proof: (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.”
(quotation marks and citations omitted).
A “pattern of
criminal acts listed in the RICO statute.
(citing 18 U.S.C. § 1961(1)).
Fourth, Daughtry makes a
similar claim, invoking the Alabama law doctrine of civil
A civil conspiracy is an agreement among
multiple persons to commit one or more unlawful acts that
would by themselves give rise to civil liability.
Spain v. Brown & Williamson Tobacco Corp., 872 So. 2d
101, 126 (Ala. 2003).
Daughtry has failed to identify evidence supporting
either RICO or civil conspiracy.
He has not shown any
unlawful acts committed by the defendants (or, for that
matter, any of the claims’ other essential elements).
While Daughtry’s briefing makes vague allegations of
“extortion,” this court has seen nothing supporting that.
The record seems to show that all defendants attempted to
discontent with the result does not transform an attempt
at accommodation into an illegal act of extortion.
allegations about improper conduct that occurred in that
As far as this court can tell, the evidence
shows that Daughtry was offered a settlement that he
accepted and that there was nothing unusual, improper, or
unlawful about the deal.
Unless he can show actual
evidence otherwise (which he has not), no amount of
settlement transaction into an act of extortion.
Fifth, Daughtry seeks to hold the defendants liable
for committing the Alabama law tort of outrage.
succeed on that claim, Daughtry must show “(1) that the
distress, or knew or should have known that emotional
distress was likely to result from [their] conduct; (2)
outrageous; and (3) that the defendant[s’] conduct caused
emotional distress so severe that no reasonable person
could be expected to endure it.”
Jackson v. Alabama
Power Co., 630 So. 2d 439, 440 (Ala. 1993).
Daughtry claims that the defendants’ “barbaric means of
refusing to accommodate” him make out an outrage claim.
Unsurprisingly, he points to no evidence of barbarism in
Likewise, no identified evidence supports
Daughtry’s two negligence and wantonness claims, one of
which is directed at the union and the other at the other
The court is unable to discern what conduct
The first incident is, he contends,
certain unspecified statements in the course of judicial
But, under Alabama law, statements made in
privileged, and, therefore, that aspect of his invasionof-privacy claim fails as a matter of law.
See Drees v.
Turner, 45 So. 3d 350, 358 (Ala. Civ. App. 2010) (citing
O’Barr v. Feist, 296 So. 2d 152 (Ala. 1974)).
incident is, he alleges, that the defendants, in the
course of attempting to accommodate him, required him to
have a physical examination by a doctor and that that
examination violated his privacy.
The court sees no
aspect of this physical examination that should rise to
overlapping claims, his final charge is that the union
inadequately represented his interests throughout the
Under federal law, labor unions owe a
duty of fair representation to their members.
v. Sipes, 386 U.S. 171, 177 (1967).
duty, “a union is allowed considerable latitude in its
Trucking Co., 668 F.2d 1204, 1206 (11th Cir. 1982).
“Nothing less than a demonstration that the union acted
with reckless disregard for the employee’s rights or was
establish” a claim that the union violated its duty of
Id. at 1206-07.
Daughtry argues that the union violated the duty in
The first violation he contends is
arbitration, it failed to argue that Army Fleet had
violated the ADA and, instead, argued only that the
company violated the collective-bargaining agreement’s
provisions relating to accommodations.
decision, however, seems entirely reasonable.
language of the collective-bargaining agreement provides
decision shall be confined to a determination of the
specific provision of this Agreement at issue....
federal or state law.”
(Doc. No. 105-2) at 22.
Even if competent attorneys may
differ as to whether the union’s tactics were the best
choice, it is obvious that the union’s conduct was not
Harris, 668 F.2d at 1206-07.
Next, Daughtry complains that, after the arbitrator
issued an unfavorable decision, the union failed to sue
to vacate the result.
That choice of the union also
seems entirely reasonable.
agreement itself provides that the arbitrator’s decision
“shall be final and binding on the Company, the Union and
Bargaining Agreement (Doc. No. 105-2) at 22.
even if the union had sued, the suit almost surely would
have failed, as arbitration decisions are subject to
highly limited judicial review.
See Smith v. Babcock &
Wilcox Co., 726 F.2d 1562, 1564 (11th Cir. 1984) (“When
a collective bargaining agreement provides a mechanism
for grievance settlement through binding arbitration, a
decision by the arbitrator may not normally be reviewed
in the federal courts.”).
The union’s decision not to
sue cannot “conceivably amount to a breach of the Union’s
duty of fair representation.”
Rasheed v. International
Paper Co., 826 F. Supp. 1377, 1388 (S.D. Ala. 1993)
(Vollmer, J.); see also Shores v. Peabody Coal Co., 831
F.2d 1382 (7th Cir. 1987) (“This Circuit has firmly
established the rule, however, that a union's failure to
contest an arbitration award in court cannot be a breach
of the duty of fair representation.”).
Lastly, Daughtry charges that the union wrongfully
Daughtry’s multiple grievances were duplicative and that
it made a wise strategic decision in opting to arbitrate
some grievances, but not the redundant ones.
the evidence before the court, it seems undisputed that
“the union met [its] obligation of fair representation by
pursuing [the] grievance[s] to a point where further
action would have been fruitless.
The union is not under
arbitration,” especially a grievance duplicative of one
already proceeding through arbitration.
Stanley v. Gen.
Foods Corp., 508 F.2d 274, 275 (5th Cir. 1975).2 Daughtry
has not shown facts sufficient to support a breach of
duty in this regard.
Daughtry has raised several other complaints about
his union’s performance, but they are all either too
unclear to assess or they lack any citation to evidence
in the record.
judgment will be granted, with judgment entered in favor
of the defendants and against Daughtry.
An appropriate judgment will be entered.
DONE, this the 15th day of February, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
2. In Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all of the decisions of the
former Fifth Circuit handed down prior to the close of
business on September 30, 1981.
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