Sherman v. Fanning

Filing 60

ORDER: It is ORDERED: 1) Plf's 58 objections are OVERRULED; 2) The Magistrate Judge's 55 Recommendation is ADOPTED; 2) Dft's 44 motion for summary judgment is GRANTED; A separate final judgment will be entered. Signed by Honorable Judge William Keith Watkins on 5/7/2019. (alm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
TOMMIE SHERMAN,
Plaintiff,
v.
ROBERT M. SPEER, Acting
Secretary of the United States
Department of the Army,
Defendant.

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CASE NO. 1:16-CV-939-WKW
[WO]

ORDER
Plaintiff Tommie Sherman, a former security guard at Fort Rucker, filed this
suit under the Rehabilitation Act (Rehab Act), 29 U.S.C. §§ 701 et seq., and the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., after he was
fired from his job. He brings three claims: (1) disability discrimination under the
Rehab Act; (2) retaliation for requesting a reasonable accommodation under the
Rehab Act; and (3) age discrimination under the ADEA.
Defendant Robert M. Speer moved for summary judgment (Doc. # 42), and
the Magistrate Judge recommended that his motion be granted (Doc. # 55). Plaintiff
objected to that Recommendation (Doc. # 58), and Defendant responded to those
objections (Doc. # 59).
Plaintiff has effectively conceded that summary judgment is due on his ADEA

claim. (See Doc. # 45, at 1; Doc. # 55, at 16.) Plaintiff also does not object to the
Recommendation’s conclusion that summary judgment is due on his retaliation
claim.
Plaintiff’s objections center on the Recommendation’s conclusion that
summary judgment should be granted on his disability discrimination claim. (See
Doc. # 58.) After an independent and de novo review of the record, the objections,
and the Recommendation, the court finds that the Recommendation is due to be
adopted and Defendant’s motion for summary judgment granted.
Plaintiff first objects to the Recommendation’s conclusion that Plaintiff failed
to timely exhaust his administrative remedies. That objection lacks merit. Plaintiff
had 45 days after denial of his request for accommodation to contact the Equal
Employment Opportunity Office (EEO) to “exhibit an intent to begin the EEO
process.” Murphree v. Comm’r, 644 F. App’x 962, 966 (11th Cir. 2016) (quoting
Duke v. Slater, EEOC Dec. 01A02129, 2000 WL 732027, at *1 (E.E.O.C. May 22,
2000)). Chief Brandon denied Plaintiff’s requested accommodation on September
14, 2015. The Recommendation found that Plaintiff did not contact EEO to state his
intent to file a complaint until December 18, 2015, well over 45 days later. The
record supports this finding. EEO’s notice of accepted claims identified the date of
Plaintiff’s initial contact as December 18, 2015. (Doc. # 44-16, at 2.) December 18
is also the date listed in Plaintiff’s initial EEO complaint as the date of first contact.
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(Doc. # 44-7, at 4.) Plaintiff later amended his EEO complaint to reflect a date of
initial contact of September 23, 2015.1 (Doc. # 44-7, at 8.)
To dispute the December 18 date, Plaintiff attached some phone records to his
judicial complaint to show that he contacted EEO on September 23, 2015, just nine
days following the denial of his accommodation requests. (Doc. # 1-1, at 9–13.) But
there is no evidence of the content of those calls. In fact, Plaintiff could not
remember whether he told EEO on September 23 that he intended to file an EEO
complaint. (Doc. # 44-14, at 7.) Plaintiff’s objection on this ground will be
overruled. The Recommendation correctly concluded that Plaintiff failed to timely
exhaust his administrative remedies by not contacting EEO to express an intent to
file a complaint within 45 days of the denial of his accommodation request.
Plaintiff next objects to the Recommendation’s conclusion that Plaintiff’s
request for reassignment to the Visitor Control Center (VCC) gate to perform
National Crime Information Center (NCIC) checks was unreasonable because no
such permanent position existed. But none of the facts Plaintiff cites calls that
conclusion into question. It remains uncontradicted that, because of the random antiterrorism measures (RAM) in place at Fort Rucker, there was no permanent position

1

The amendment also lists June 3, 2015 as a date of initial contact. (Doc. # 44-7, at 8.)
But June 3 occurred well before Plaintiff received a decision from Chief Brandon, and thus
Plaintiff would have had no reason to state his intent to file a formal complaint on that date. (Doc.
# 44-14, at 6.) Moreover, Plaintiff gives no explanation for these conflicting dates.
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at the VCC gate performing NCIC checks. 2 And the Rehab Act “does not require
employers to create new positions for employees with disabilities.” Boyle v. City of
Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017) (citing Sutton v. Lader, 185 F.3d
1203, 1210–11 (11th Cir. 1999)). Plaintiff’s objection on this point will thus be
overruled.

The Recommendation correctly found that Plaintiff’s requested

accommodation was unreasonable because Plaintiff’s requested position did not
exist.
Finally, Plaintiff objects to the Magistrate Judge’s finding that Plaintiff could
not be accommodated in his current position because it did not allow for a set meal
time each day. Plaintiff merely references his brief in opposition to summary
judgment and states that Defendant “never actually undertook the analysis” to
determine whether he could have regular meals in his current position. (Doc. # 58,
at 6.) But he cites nothing to contradict the Recommendation’s finding that the
Reasonable Accommodation Committee (RAC) met and discussed Plaintiff’s
request, considered Dr. Gilbert’s opinion that Plaintiff needed a position that allowed
for a daily set meal time, and then concluded that Plaintiff’s security guard position
did not make such an allowance. (Doc. # 55, at 13–14.) Plaintiff’s objection will
therefore be overruled. The Magistrate Judge correctly found that Plaintiff “could

2

The RAM required Fort Rucker’s security guards to rotate gates and shifts at irregular
intervals. (Doc. # 55, at 6.)
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not be accommodated in his current position because the security guard position did
not allow for a scheduled meal time every day.” (Doc. # 55, at 13–14.)
For

these

reasons,

Plaintiff’s

objections

will

be

overruled,

the

Recommendation adopted, and summary judgment granted in Defendant’s favor.
It is ORDERED:
(1)

Plaintiff’s objections (Doc. # 58) are OVERRULED.

(2)

The Magistrate Judge’s Recommendation (Doc. # 55) is ADOPTED.

(2)

Defendant’s motion for summary judgment (Doc. # 42) is GRANTED.

A separate final judgment will be entered.
DONE this 7th day of May, 2019.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE

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