Anderson v. Georgia-Pacific Wood Products, LLC
MEMORANDUM OPINION AND ORDER directing that the 57 Motion for Summary Judgment is GRANTED, as further set out. Signed by Honorable Judge Mark E. Fuller on 4/26/13. (scn, )
IN THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF ALABAMA
WOOD PRODUCTS, LLC,
CASE NO. 2:11-cv-110-MEF
(WO – Publish)
MEMORANDUM OPINION AND ORDER
The plaintiff, Larry Anderson (“Anderson”), claims that his former employer,
Georgia-Pacific Wood Products, LLC (“Georgia-Pacific”), is liable for disability
discrimination under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq., and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq., as amended. Georgia-Pacific has filed a motion for summary judgment (Doc. #57).
Upon consideration of the parties’ briefs and the evidence presented in support thereof, the
Court concludes that Georgia-Pacific’s motion is due to be GRANTED on all of Anderson’s
II. JURISDICTION AND VENUE
This Court has federal question jurisdiction over Anderson’s claims under 28 U.S.C.
§ 1331. The parties do not claim that the Court lacks personal jurisdiction over them, nor do
they dispute that venue is proper under 28 U.S.C. § 1391(b), and the Court finds adequate
allegations supporting both.
III. THE RELEVANT FACTS
Anderson’s Employment with Georgia-Pacific
Anderson’s Job as a Maintenance Technician
From around 1997 to 2008, Anderson worked as a maintenance technician at a mill
in Thorsby, Alabama (the “Thorsby facility”), first with International Paper, and then with
Georgia-Pacific after it took over the Thorsby facility in March 2007. (Compl. ¶¶ 6–7.) At
the Thorsby facility, Georgia-Pacific manufactures engineered wood products, including
laminated veneer lumber (“LVL”). LVL consists of layers of wood veneer and glue and is
compressed to make structural timbers for use in homes and commercial buildings.
(Deposition of John Skedgell (“Skedgell Dep.”) at 7:21–25, Doc. #71-1.) Boilers, dryers,
presses, saws, glues, and chemicals are used to manufacture LVL. Due to the manufacturing
process, exposure to heat, humidity, fumes, and wood dust is common at Georgia-Pacific
facilities. In general, the temperature and humidity at the Thorsby facility are high,
particularly in the areas around the press and the boilers. (Skedgell Dep. at 81:9–18, Doc.
As a maintenance technician, Anderson was responsible for performing preventative
maintenance, repairs, and inspections on all of the equipment at the Thorsby facility, and
troubleshooting electrical and mechanical problems.
(Deposition of Larry Anderson
(“Anderson Dep.”), at 62:4–14; 66:17–67:15, Doc. #58-3; Anderson Dep. Ex. 10, Doc. #594, at 19.) Anderson’s job duties included cleaning and oiling the equipment, fabricating steel
Anderson contends that employees in certain positions at the Thorsby facility, such as
senior press line operators, are exposed to less heat, humidity, and dust because those employees
work in air-conditioned booths. (Anderson Dep. at 185:1–16, Doc. #71-2.)
and welding parts, installing new equipment and replacement parts, aligning the equipment,
and using and carrying hand and power tools throughout the Thorsby facility (Anderson Dep.
at 62:4–64:14; 66:17–68:1; Anderson Dep. Ex. 10, Doc. #59-4, at 20.) Anderson’s job
required him to walk and stand for four hours a day, and to stoop, kneel, crouch, crawl,
handle large objects, and reach for two hours a day. (Anderson Dep. Ex. 10, Doc. #59-4, at
Anderson’s Disciplinary Warnings
In 2007, Kevin Dozier (“Dozier”), an African-American maintenance worker, and
another Caucasian maintenance worker, were terminated after a fire occurred at the Thorsby
facility.2 Anderson went to the main office to complain about the terminations on August 30,
2007. (Anderson Dep. at 107:6–10; 108:7–11, Doc. #58-3.) Anderson was visibly upset; he
called the management “liars” and used profanity. (Anderson Dep. at 109:1–4; Anderson
Dep. Ex. 18, Doc. #58-3, at 95.) On August 31, 2007, Anderson alleged that he had
overheard coworkers using racial slurs but refused to disclose the names of the coworkers
to the human resources manager, Greg Green (“Green”).3 (Anderson Dep. Ex. 18, Doc. #583, at 95; Anderson Dep. at 111:12–19.) On September 1, 2007, Anderson was disruptive
during a pre-shift meeting and was counseled by his supervisor. (Anderson Dep. Ex. 18,
Doc. #58-3, at 95.) On September 12, 2007, Anderson received a written warning for his
Georgia-Pacific told Anderson that both employees were fired for failing to follow the
safety protocol that Anderson prepared, but Anderson alleges that Dozier was fired because he was
African-American. (Anderson Dep. at 109:6–16, Doc. #58-3.)
Green resigned his employment with Georgia-Pacific on May 31, 2008, and Bob Brown
(“Brown”) became the acting human resources manager at the Thorsby facility until Green’s
position was filled. (Brown Aff. ¶ 7, Doc. #59-2.)
disruptive behavior and for failing to cooperate with management in its investigation of the
racial discrimination allegations he made on August 31, 2007. (Anderson Dep. Ex. 18, Doc.
#58-3, at 95.)
Between September 2007 and April 2008, Anderson received two more disciplinary
warnings. On March 10, 2008, Anderson received another warning for his pattern of unsafe
conduct after he injured his left thumb while using a bench grinder to sand pieces of steel.
(Anderson Dep. Ex. 22, Doc. #58-3, at 97; Anderson Dep. Ex. 20, Doc. #58-3, at 96;
Anderson Dep. at 119:14–24.)4 On April 15, 2008, Anderson and another employee missed
a scheduled training without calling in and they both received written warnings for
attendance issues. (Def. Exs. 30 & 31, Doc. #58-6, at 6–7.)
Anderson’s Medical Disability
Throughout his employment at the Thorsby facility, Anderson suffered from chronic
obstructive pulmonary disease (“COPD”)5 due to his military service. His condition required
him to take leave from work on an intermittent basis under the Family Medical Leave Act
After receiving the safety warning, Anderson lodged a battery of complaints with various
agencies. On March 12, 2008, Anderson filed a discrimination charge against Georgia-Pacific with
the Equal Employment Opportunity Commission (“EEOC”), alleging retaliation for his reporting
of racial discrimination and for his wife’s filing of an EEOC charge for sexual discrimination.
(Anderson Dep. Ex. 65, Doc. #58-3, at 134.) On March 13, 2008, Anderson e-mailed a complaint
to the Occupational Safety and Health Administration (“OSHA”), alleging that Georgia-Pacific
issued its March 10, 2008 warning as retaliation for his making safety complaints. (Anderson Dep.
Ex. 25, Doc. #58-3, at 106.) Finally, on March 17, 2008, a charge was filed by the union on
Anderson’s behalf with the National Labor Relations Board (“NLRB”), alleging that Anderson had
been “harassed, intimidated and written up because of his activities on behalf of the [United
Steelworkers labor union].” (Anderson Dep. Ex. 25, Doc. #58-3, at 105.)
COPD is a progressive disease that makes it hard for the patient to breathe due to reduced
airflow in and out of the lungs. What is COPD?, National Heart, Lung, and Blood Institute,
National Institutes of Health, available at http://www.nhlbi.nih.gov/health/health-topics/topics/copd/
(last updated June 8, 2012).
(“FMLA”). (Anderson Dep. Ex. 17, Doc. #59-4.) Anderson’s physician, Lucille Collins
(“Dr. Collins”), submitted an FMLA certification for Anderson in November 2006,
indicating that Anderson would require periodic treatment for his COPD; she submitted a
similar certification in June 2007. (Anderson Dep. Ex. 14, Doc. #59-4; Skedgell Dep. Ex.
13, Doc. #59-3.) Dr. Collins also submitted return-to-work notes for Anderson on five
occasions between October 8, 2007, and May 2, 2008. (Anderson Dep. Ex. 17, Doc. #59-4,
at 31–35.) None of these return-to-work notes imposed any restrictions on Anderson’s
normal job duties.
On May 9, 2008, Anderson was assigned to help install a new motor for the LVL hog.
(Declaration of DeWayne Winslett (“Winslett Decl.”) ¶ 6, Doc. #58-6.) After Anderson
complained that the area was too dusty, the ground was wet down so that the dust would not
be airborne. (Winslett Decl. ¶ 6.) The following day, Anderson informed his supervisor,
DeWayne Winslett (“Winslett”), that he had spoken with his doctor and that he might be
going to the emergency room because of his trouble breathing due to working in the dust the
previous day. (Winslett Decl. ¶ 7.) Anderson told Winslett that “if he wanted to push the
issue, he could be on 100 percent disability.” (Winslett Decl. ¶ 7.)
The following week, on May 14, 2008, Green met with Anderson and Winslett to talk
about Anderson’s disability and provided Anderson with a new FMLA medical certification
form and job requirements form for Anderson’s doctor to complete. (Affidavit of Bob
Brown (“Brown Aff.”) ¶ 6; Def.’s Ex. A, Doc. #59-2.) The job requirements form required
Dr. Collins to assess if Anderson could perform the essential functions of his job. (Brown
Aff. Ex. A, Doc. #59-2, at 10.) On May 30, 2008, Anderson turned in the job requirements
form, in which Dr. Collins had noted that Anderson’s restrictive lung disease permanently
restricted him from working in conditions of extreme temperatures and humidity and from
exposure to wood dust, fumes, gases, or chemicals. (Anderson Dep. Ex. 33, Doc. #58-3, at
109–111; Brown Aff. ¶ 8, Doc. #58-1.) Dr. Collins also noted that Anderson would require
the protection of a respirator as an accommodation of his permanent physical restrictions if
he was working in areas with exposure to dust and fumes. (Anderson Dep. Ex. 33, Doc. #583, at 109.) On the job requirements form, Dr. Collins indicated that Anderson could return
to work on May 30, 2008, and that he could perform the essential functions of his job if he
wore a respirator when working around dust, fumes, and chemicals. (Pl.’s Ex. 3, Doc. #71-1,
After Anderson returned the job requirements form, Dale Mims (“Mims”), the safety
manager at the Thorsby facility, was consulted about the feasibility of Anderson wearing a
respirator. (Def.’s Ex. E, Doc. #59-2, at 14.) On June 3, 2008, Mims informed Brown that
Anderson did not pass a 2002 pulmonary function test and that the registered nurse who
administered the test told management that Larry Anderson could not wear a full-faced
respirator. (Skedgell Dep. 103:23–25, Doc. #71-1; Def.’s Ex. E, Doc. #59-2.) The 2002 test
indicated that Anderson had mild restrictive lung disease and predicted his forced expiratory
volume over one second to be 68 percent (FEV-1).6 (Def.’s Ex. E, Doc. #59-2, at 15.) A
On June 17, 2008, Dr. Collins submitted a statement to MetLife, Georgia-Pacific’s shortterm disability insurance provider, in which she predicted Anderson’s lung capacity to be 31%.
(Anderson Dep. Ex. 43, Doc. #59-4, at 38.) According to the pulmonary functions tests Mr.
Anderson underwent while on short-term leave, his predicted forced expiratory volume in one
second (FEV-1) had declined to 25 percent as of July 24, 2008, and to 23 percent by August 8, 2008.
(Anderson Dep. Exs. 44 & 48, Doc. #59-4.)
registered nurse noted on the 2002 test results that Anderson did not need to be a part of the
confined space safety rescue team, which required him to wear a respirator or oxygen mask.
(Brown Aff. ¶ 9; Def.’s Ex. E, Doc. #59-2, at 15.)7
Anderson’s Requests for Reasonable Accommodations, Short-Term Paid Leave,
On June 4, 2008, Brown met with the Thorsby facility manager, Gary Bittner
(“Bittner”), and Anderson to talk about the restrictions imposed by Dr. Collins on the job
requirements form. (Brown Aff. ¶ 10, Doc. #59-2.) At the meeting, Brown told Anderson
that he had a copy of the 2002 pulmonary function test indicating that Anderson could not
wear a full-face respirator, and Anderson responded that his lung condition had become
worse over the years. (Brown Aff. ¶ 10.) The 2002 test results and Anderson’s statement
to Bittner and Brown that his lung condition had worsened led Brown to believe that
Anderson’s COPD prevented him from wearing a full-face respirator. Thus, Brown
concluded that providing a respirator to Anderson was not a reasonable accommodation.
(Brown Aff. ¶ 10.) Georgia-Pacific did not provide Anderson with an updated functional
lung test after receiving Dr. Collins’s notes about Anderson’s need for a respirator. (Skedgell
Dep. at 105:19–25, Doc. #71-1.)8 It is undisputed that when International Paper owned the
Thorsby facility, it gave Anderson a respirator sometime around 1997 or 1998, which
The parties dispute whether Anderson quit the safety rescue team voluntarily or was
removed, but it is undisputed that Anderson stopped participating on the confined space safety
rescue team after he failed the pulmonary function test. (See Anderson Dep. at 69:4–10, Doc. #59-4)
(“I quit the confined space rescue team when I failed a pulmonary functions test.”).
After being placed on short-term sick leave, Anderson underwent two pulmonary function
tests in July and August of 2008. His forced expiratory volume in one second (FEV-1) was 25
percent of predicted value on July 24, 2008, and 23 percent of predicted value on August 8, 2008.
(Anderson Dep. Exs. 44 & 48, Doc. #59-4.)
Anderson kept in his locker. (Anderson Dep. at 76:8–10; 77:10–18, Doc. #71-2.) Anderson
wore the respirator when needed in 2007. (Anderson Dep. at 76:16–77:5, Doc. #71-2.)
At the June 4, 2008 meeting, Brown and Bittner asked Anderson about
accommodations other than wearing a respirator. (Brown Aff. ¶ 11.) After stating his
opinion that Dr. Collins’s restrictions did not apply to the entire Thorsby facility, Anderson
advised that, in the past, his supervisors excused him from working in the dustiest areas of
the plant. He also suggested they allow him to wear an over-the-counter dust mask. Brown
and Bittner responded that his job required him to work throughout the plant, where he was
exposed to the conditions to which Dr. Collins had objected—chemicals, sprays, dust, and
extreme heat and humdity. (Brown Aff. ¶ 11.) After meeting with Anderson, Brown
considered reassigning Anderson to another position but concluded that, in light of Dr.
Collins’s restrictions, there were no other available positions at the Thorsby facility for which
Anderson could perform the essential functions with or without a reasonable accommodation.
On June 5, 2008, Brown sent Anderson a letter summarizing the previous day’s
meeting and advising Anderson that there were no available positions at the Thorsby facility
that would satisfy his doctor’s restrictions because dust, fumes, and chemicals were present
throughout the Thorsby facility. (Def.’s Ex. F, Doc. #59-2, at 17.) In his letter, Brown also
rejected Anderson’s suggestion of wearing an over-the-counter dust mask, noting such masks
were not impervious to heat, humidity, sprays, solvents, and even dust unless the mask is
properly tested for the correct fit each time it is worn. (Def.’s Ex. F, Doc. #59-2, at 17.) At
the end of the letter, Brown advised Anderson that unless Anderson corrected the information
he had submitted or provided new information from his doctor, he would be terminated from
his employment with Georgia-Pacific. (Def.’s Ex. F, Doc. #59-2, at 18.)
Anderson responded to Brown by email, reiterating that Dr. Collins’s permanent
restrictions applied only to the LVL houses and the chip bins and that Dr. Collins had tried
to contact Brown by phone to explain this. (Def.’s Ex. G, Doc. #58-1, at 19.) Anderson
pointed out that, for five years, he had been excused from working in the problem areas and
that he had spent less than 2 percent of his time in them. (Def.’s Ex. G, Doc. #58-1, at 19.)
Brown responded that Dr. Collins’s restrictions marked a “dramatic change” from his
condition in the past in that Anderson was now restricted from conditions that were present
throughout the facility, when in the past, he was not. Brown informed Anderson that he had
filed an initial claim on his behalf for short-term sick leave to last six months, through
December 8, 2008, and that he would be reevaluated for return-to-work at the end of the
approved period. (Brown Aff. ¶ 16; Def.’s Ex. N, Doc. #58-1, at 27.)
In October and November of 2008, Anderson requested to be evaluated for return to
work. (Def.’s Exs. K, L, & M, Doc. #58-1, at 24–26.) In this correspondence, he informed
Geogia-Pacific that the medications he had been taking over the previous four months had
greatly improved his condition, and he requested that a neutral physician of Georgia-Pacific’s
choosing perform another “fit test.” (Def.’s Exs. K, L, & M, Doc. #58-1, at 24–26.) Brown
responded that Georgia-Pacific had no reason to question the previous conclusions of
Anderson’s personal physician and Anderson’s previous admission that he would not be able
to pass a pulmonary function test. (Def.’s Ex. K, Doc. #58, at 24.)
On December 2, 2008, Brown again rejected Anderson’s request to be evaluated by
another physician and reiterated that there were no available positions for which he could
perform the essential functions given the medical restrictions imposed by Dr. Collins.
(Def.’s Ex. N, Doc. #58-1, at 27.) Brown further advised Anderson that unless he provided
Georgia-Pacific with new information that his medical condition had improved to allow him
to perform the essential functions of his job as a maintenance technician by December 8,
2008, Georgia-Pacific would consider him to have voluntarily resigned his employment.
(Def.’s Ex. N, Doc. #58-1, at 27.) Having not received any information from a physician
about any change in Anderson’s medical restrictions, Georgia-Pacific sent Anderson a notice
of termination on December 9, 2008. (Def.’s Ex. Q, Doc. #58-1, at 30.)
Anderson’s Applications for Disability Benefits During Short-Term Leave
Shortly after being placed on short-term paid leave, Anderson began the process of
applying for social security disability insurance (“SSDI”) and veteran’s disability benefits.
On July 9, 2008, Anderson filed an application for increased compensation based on his
unemployability with the Department of Veterans Affairs (“DVA”), declaring under oath that
he was “let go from [his] job at Georgia-Pacific because of [his] COPD condition . . .” and
that his “service-connected disabilities preclude [him] from obtaining gainful employment.”
(Def.’s Ex. G, Doc. #59-5, at 2.) On April 29, 2009, the DVA issued a Rating Decision that
stated that Anderson was only 70 percent disabled as of October 14, 2008, due to his posttraumatic stress disorder (“PTSD”) and alcohol abuse in early remission. (Def. Ex. J, Doc.
#59-8.) On March 10, 2010, the DVA issued another Rating Decision, in which it increased
its evaluation of Anderson’s COPD to 100 percent disabling, noting that “[a]n evaluation is
granted whenever there is forced expiratory volume in one second (FEV-1) less than 40
percent predicted value.” (Anderson Dep. Ex. 60, Doc. #59-4, at 54.)
On August 28, 2008, Anderson filed a disability report with the Social Security
Administration (“SSA”), in which Anderson stated that he was “unable to perform any
occupation” as of June 3, 2008, because of his conditions, which included COPD, PTSD, an
undiagnosed skeletal disorder, a herniated cervical disc, and sleep apnea. (Anderson Dep.
Ex. 10, Doc. #59-4, at 18.) In his report, Anderson explained that he “become[s] short of
breath with physical activity and exposure to high temperatures” and that he “use[s] oxygen
when sleeping, when going outside, and when needed.” (Anderson Dep. Ex. 10, Doc. #59-4,
at 18.) On November 13, 2008, Anderson completed his application for SSDI, stating under
oath that he became unable to work on June 3, 2008, because of his disability, and that he
was still unable to work. (Anderson Dep. Ex. 58, Doc. #59-4, at 118.) Around April 11,
2009, the SSA notified Mr. Anderson that he became “disabled” under its rules as of October
1, 2008. (Anderson Dep. Ex. 4, Doc. #58-3, at 77.) Anderson later urged the SSA to declare
him disabled as of June 3, 2008, the last day of his active employment with Georgia-Pacific.
IV. LEGAL STANDARD
A motion for summary judgment looks to “pierce the pleadings and to assess the proof
in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A court should grant summary judgment
when the pleadings and supporting materials show that no genuine dispute exists as to any
material fact and that the moving party deserves judgment as a matter of law. Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for
summary judgment “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying” the relevant documents that “it believes demonstrate
the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). To shoulder this burden, the moving party can present evidence to this effect. Id.
at 322–23. Or he can show that the non-moving party has failed to present evidence in
support of some element of his case on which he ultimately bears the burden of proof. Id.
If the moving party meets its burden, the non-movant must then designate, by
affidavits, depositions, admissions, or answers to interrogatories, specific facts showing the
existence of a genuine issue for trial. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593–94 (11th Cir. 1995). And a genuine issue of material fact exists when the non-moving
party produces evidence that would allow a reasonable fact-finder to return a verdict in his
favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). Thus,
summary judgment requires the non-moving party to “do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Indeed,
a plaintiff must present evidence demonstrating that he can establish the basic elements of
his claim, Celotex, 477 U.S. at 322, because “conclusory allegations without specific
supporting facts have no probative value” at the summary judgment stage. Evers v. Gen.
Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985).
A court ruling on a motion for summary judgment must believe the non-movant’s
evidence. Anderson, 477 U.S. at 255. It also must draw all justifiable inferences from the
evidence in the nonmoving party’s favor. Id. After the non-moving party has responded to
the motion, the court must grant summary judgment if there exists no genuine dispute of
material fact and the moving party deserves judgment as a matter of law. See Fed. R. Civ.
Anderson’s Failure-to-Accommodate Claim Under § 42 U.S.C. § 12112(a)
The ADA prohibits an employer from discriminating against a “qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement,
or discharge of employees, employee compensation, job training, and other terms, conditions,
and privileges of employment.” 42 U.S.C. § 12112(a). In order to establish a prima facie
claim of discrimination under the ADA, a plaintiff must show that (1) he was disabled; (2)
he was a “qualified individual” at the relevant time; and (3) he was discriminated against
because of his disability. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.
2001). Georgia-Pacific does not dispute that Anderson has satisfied the first element—that
Anderson was “disabled” under the ADA. The other two prongs, however, are contested by
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). Essential
functions are “the fundamental job duties of a position that an individual with a disability is
actually required to perform.” Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000)
(citing 29 C.F.R. § 1630.2(n)(1)). If a plaintiff is unable to perform an essential function,
even with a reasonable accommodation, he is not a qualified individual for purposes of the
ADA. Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000). In other
words, “a plaintiff who is totally disabled and unable to work at all is precluded from suing
for discrimination” under the ADA. See Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1280
(11th Cir. 2005) (“[T]he ADA reserves its protections for individuals still able to perform the
essential functions of a job, albeit perhaps with reasonable accommodation . . . .”).
The third element—that the plaintiff was discriminated against because of his
disability—may be established by showing that an employer failed to “mak[e] reasonable
accommodations to the known physical or mental limitations of the individual,” unless the
employer can demonstrate that the requested reasonable accommodation would impose an
“undue hardship on the operation of [its] business.” 42 U.S.C. § 12112(b)(5)(A); see also
Holly v. Clairson Indus., 492 F.3d 1247, 1262 (11th Cir. 2007) (“[A]n employer’s failure to
reasonably accommodate a disabled individual itself constitutes discrimination, so long as
that individual is “otherwise qualified,” and unless the employer can show undue hardship.”
(emphasis in original)). Reasonable accommodations may include:
job restructuring, part-time or modified work schedules, reassignment to a
vacant position, acquisition or modification of equipment or devices,
appropriate adjustment or modifications of examinations, training materials or
policies, the provision of qualified readers or interpreters, and other similar
accommodations for individuals with disabilities.
42 U.S.C. § 12111(9)(B). Although the ADA requires an employer to make “reasonable
accommodations” for an employee’s known disability, “an employer is not required to
accommodate an employee in any manner which that employee desires.” Earl, 207 F.3d at
1367 (quoting Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th
Cir. 1997)). An accommodation is reasonable and thus required under the ADA “only if it
enables the employee to perform the essential functions of the job.” Holly, 492 F.3d at 1256;
see also 29 C.F.R. § 1630.2(o)(1)(ii) (defining “reasonable accommodation” as
“[m]odifications or adjustments to the work environment, or to the manner or circumstances
under which the position held or desired is customarily performed, that enable an individual
with a disability who is qualified to perform the essential functions of that position”).
While the ADA may require that the employer “restructure a particular job by altering
or eliminating some of its marginal functions,” Lucas, 257 F.3d at 1260, the Eleventh Circuit
has made it clear that “the ADA does not require the employer to eliminate an essential
function of the plaintiff’s job” to accommodate an employee’s disability. Holly, 492 F.3d
at 1256 (quoting D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1224 n.2 (11th Cir.
2005)). The burden of identifying an accommodation that would allow a qualified individual
to perform the job rests with that individual, as does the ultimate burden of persuasion that
the requested accommodation is a reasonable one. Stewart, 117 F.3d at 1286.
Anderson contends that Georgia-Pacific discriminated against him by failing to
provide him with the following requested accommodations: (1) excusing Anderson from
working in the dustiest areas of the plant that most exacerbated his lung condition—the LVL
bag and hog houses—unless absolutely necessary, and allowing Anderson to wear a
respirator when he is required to work in those areas;9 or (2) reassigning Anderson to a
position in which he could work in an air-conditioned booth, such as the senior press line
The Eleventh Circuit has held that “the duty to provide a reasonable accommodation is
not triggered unless a specific demand for an accommodation has been made” by the employee.
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999). GeorgiaPacific argues that Anderson never actually requested a respirator as an accommodation for his lung
condition, reasoning that the need for a respirator was only mentioned by his physician on the Job
Requirements/Essential Functions form Anderson submitted at the end of May 2008. The Court is
unconvinced by this argument. First, the Eleventh Circuit has indicated that the request for an
accommodation need not be made directly by the employee, but can be made by a representative.
See, e.g., Warren v. Volusia Cnty., Fl., 188 Fed. App’x 859, 863 (11th Cir. 2006) (dismissing case
where plaintiff never requested any accommodation, either on her own or through a representative).
Furthermore, the form that Anderson submitted to Georgia-Pacific clearly lists Anderson’s use of
a respirator when working around dust, fumes, or chemicals as a necessary “accommodation” for
Anderson’s lung condition. (Anderson Dep. Ex. 33, Doc. #58-3.) Because Anderson submitted this
form to Georgia-Pacific (Brown Aff. ¶ 8, Doc. #59-2), the Court concludes that the form constituted
a specific demand by Anderson. Moreover, the record evidence shows that Georgia-Pacific itself
treated Dr. Collins’s notes about the need for a respirator as a request for an accommodation when
it consulted with the safety manager at the facility to discern Anderson’s ability to wear a respirator
in light of his lung condition.
Georgia-Pacific argues that, under the Supreme Court’s holding in Cleveland v. Policy
Management Systems, 526 U.S. 795, 805 (1999), Anderson’s successful applications for
disability benefits from the SSA and the DVA, in which he stated that he became unable to
work and unemployable as of June 3, 2008,10 because of various disabling conditions,
preclude him from bringing an ADA claim. Because Anderson has failed to provide the
Court with a sufficient explanation that reconciles the inconsistencies between his statements
to the SSA and the DVA and his assertion that he is a qualified individual under the ADA,
Georgia-Pacific argues, his ADA claim must fail. Accordingly, the threshold issue this Court
must decide is whether Anderson’s ADA claim is precluded by the sworn statements he made
in support of his applications for social security and veterans disability benefits and his
receipt of those benefits.
To obtain social security disability benefits, an applicant must prove that he is
disabled—that is, he is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuing period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999).
To get benefits, the applicant’s impairment must be “of such severity that he is not only
unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
In his application for social security disability benefits, Anderson stated that he became
unable to work because of his disability on June 3, 2008. (Doc. #58-3, at 118.) In his application
to the DVA for increased compensation because of his unemployability, Anderson stated that he
became too disabled to work on June 6, 2008. (Doc. #59-5, at 5.)
economy.” 42 U.S.C. § 423(d)(2)(A).
Sworn statements claiming total disability that are made to obtain disability benefits
do not automatically preclude a suit under the ADA, and there is no “special legal
presumption” against the success of an ADA claim made by a person who has applied for
and received disability benefits from the SSA. Cleveland, 526 U.S. at 805. Nevertheless,
to defeat summary judgment, an ADA plaintiff, who has previously sworn in a social security
benefits application that he is unable to work any job, in any capacity, must provide an
explanation sufficient to “warrant a reasonable juror’s concluding that, assuming the truth
of, or the plaintiff’s good faith belief in, the earlier statement, the plaintiff could nonetheless
perform the essential functions of [his] job, with or without reasonable accommodation.”
Id. at 806–07 (internal quotations omitted).
Thus, under Cleveland, a court’s task is to “decide whether [a] plaintiff’s assertions
are genuinely in conflict, and if so, evaluate [the] plaintiff’s attempt to explain away the
inconsistency.” Musarra v. Vineyards Dev. Corp., 343 F. Supp. 2d 1116, 1121 (M.D. Fla.
2004) (citing Detz v. Greiner Indus., Inc., 346 F.3d 109, 118 (3d Cir. 2003)). A plaintiff may
resolve this inconsistency by pointing to a reasonable accommodation not taken into account
as a factor in the SSA’s disability determination that, if made, would have allowed the
plaintiff to perform the essential functions of the job he holds or desires. Kurzweg v. SCP
Distrib., LLC, 424 Fed. App’x 840, 843–44 (11th Cir. 2011).
The Eleventh Circuit has explained that whether a certification of total disability on
a social security disability application is inconsistent with an ADA claim depends on the
“facts of the case, including the specific representations made in the application for disability
benefits and the nature and extent of the medical evidence in the record.” Talavera v. Sch.
Bd. of Palm Beach Cnty., 129 F.3d 1214, 1220 (11th Cir. 1997). Moreover, it is well settled
that “an ADA plaintiff is estopped from denying the truth of any statements made in her
disability application.” Id.
The Court concludes that Anderson has failed to provide a sufficient explanation
reconciling his sworn statements to the SSA and DVA that he was unable to work and
permanently unemployable, and his corresponding, yet inconsistent contention here that at
the relevant times—when he was placed on short-term paid leave and when he was finally
terminated—he was physically capable of performing the essential functions of his job or any
other job at the Thorsby facility with a reasonable accommodation. Anderson explains that
he began pursuing disability benefits only after Georgia-Pacific placed him on short-term,
paid, disability leave based on his doctor’s permanent restrictions. Anderson further explains
that he could have performed the essential functions of his job if Georgia-Pacific had
provided him the accommodations he requested. Specifically, Anderson contends that he
would have been able to perform the essential functions of his job if Georgia-Pacific had
accommodated the following requests: (1) to continue being excused from working in the
dustiest areas of the plant unless absolutely necessary and allowing him to use a respirator
when required to work in those areas; or (2) to be reassigned to a vacant position in an airconditioned booth. However, this contention is in sharp conflict with the statements he made
to the SSA in his SSDI application and the medical evidence in this case.
In his SSDI application, Anderson stated that he was unable to work because of his
disabling condition as of June 3, 2008, his last date of active employment with GeorgiaPacific. (Anderson Dep. Ex. 10, Doc. #58-3, at 82.) He further averred to the SSA that he
became “short of breath with physical activity and exposure to high temperatures,” and that
he uses oxygen “when going outside, when sleeping, and when needed.” (Anderson Dep.
Ex. 10, Doc. #58-3, at 82.) He went on to state that his arms and legs became numb after
sitting for a few minutes, that he was quick to anger, and that he suffered from headaches
throughout the day. (Anderson Dep. Ex. 10, Doc. #58-3, at 82.)
Although Anderson argues that he could have performed the essential functions of his
job with the accommodation of a respirator, and that this accommodation was not taken into
account by the SSA, Anderson has directed the Court to no evidence that he was physically
capable of wearing a respirator at the relevant time. Anderson complains about GeorgiaPacific’s basis for refusing to consider the accommodation of a respirator—that Brown
understood that he could not wear a respirator with his condition based on the 2002
pulmonary test and the fact that he had to stop participating on the safety rescue team, where
the members had to wear oxygen masks. However, Anderson does not provide the Court
with any affirmative evidence showing he was physically capable of wearing a respirator,
and thus, that the use of a respirator would have been a reasonable accommodation given his
medical condition. Indeed, in July and August of 2008, while he was on paid leave, he
underwent two pulmonary function tests, each showing a significant decline in his forced
expiratory volume as compared with the 2002 test Georgia-Pacific relied on when it decided
that Anderson was not capable of wearing a respirator at work. It is undisputed that
Anderson never submitted these 2008 test results to Georgia-Pacific in support of a request
to be provided with a respirator, and that he never requested a respirator during the June 4,
2008 meeting with Georgia-Pacific.
Anderson has also failed to show that his request to be reassigned to a position in an
air-conditioned booth, in particular, the senior press line operator position for which
Anderson had the requisite training, was a reasonable accommodation Georgia-Pacific could
have provided him. Anderson points to a hiring list to prove that two senior press line
operator positions were filled while he was on paid leave, one in August 2008 and one in
December 2008. However, Georgia-Pacific clarified in its reply and provided supporting
evidence that the list upon which Anderson relies denoted the two employees’ last-held
positions, rather than the positions they were hired into in 2008. Both of the employees
Anderson identifies were not hired into the position of senior press line operator until 2010.
In other words, there were no open senior press line operator positions in which GeorgiaPacific could place Anderson during the relevant time period. (Skedgell Aff. ¶¶ 5–6 & Ex.
A, Doc. #71-1.) Thus, Plaintiff has failed to present evidence that there were any available
positions (senior press line operator, or others) for which he was qualified at the time he
requested them. See Willis v. Conopco, 108 F.3d 282, 284 (11th Cir. 1997) (“Reassignment
to another position is a required accommodation only if there is a vacant position available
for which the employee is otherwise qualified.”).
Moreover, even if there had been a vacant senior press line operator position
available, Anderson has presented no evidence that he could have performed the essential
functions of that position given the permanent restrictions Dr. Collins placed on his exposure
to dust, fumes, chemicals, extreme temperatures, and humidity. Georgia-Pacific has
presented evidence that the senior press line operator position would have required him to
perform inspections and troubleshoot mechanical problems and perform maintenance tasks
on the production floor. Thus, even in this position, he would have been exposed to the
working conditions from which he was permanently restricted. (Anderson Dep. at 184, Doc.
#58-3; Smith Decl. ¶ 4, Doc. #71-2.) See Dickerson v. Sec’y, Dep’t of Veterans Affairs
Agency, No. 11-13474, 2012 WL 3892196, at *3 n.4 (11th Cir. Sept. 7, 2012) (affirming
summary judgment for employer where employee failed to identify “a reasonable
accommodation that would have allowed her to avoid coming into contact with the other
chemicals, substances and odors that were likely to trigger an allergic reaction”). In sum,
Anderson cannot explain away the inconsistencies between his SSA and ADA claims by
pointing to the fact that the SSA decision fails to take into account a reasonable
accommodation, because Anderson has failed to identify any such accommodation.
Finally, Anderson argues that the facts of this case do not clearly demonstrate that he
was trying to perpetrate a sham, as the district court found in Musarra, because, unlike the
plaintiff in that case, he did not make simultaneous conflicting statements that he was
disabled for the purpose of obtaining SSDI benefits and that he was ready, able, and willing
to work for the purpose of obtaining unemployment compensation. Musarra, 343 F. Supp.
2d at 1122. Although the Court admits that the facts of this case are distinguishable from
Musarra, the Court rejects Anderson’s notion that Cleveland requires courts to find evidence
of a sham in order to reject a plaintiff’s explanation of his inconsistent SSDI statements as
insufficient to support a reasonable juror’s conclusion that the plaintiff could have performed
the essential functions of the job, taking the statements to obtain disability as true. After
consideration of the sworn statements Anderson made to the SSA and DVA, Anderson’s
proffered explanation for the inconsistencies between those claims and his ADA claim, and
the medical evidence in this case, the Court concludes that Anderson’s explanation is
insufficient and that Anderson’s ADA claim is thus precluded.
Anderson’s Title VII Retaliation Claim11
Anderson claims that Georgia-Pacific’s failure to accommodate his disability and his
administrative discharge were done in retaliation for his filing an EEOC complaint regarding
race discrimination at the Thorsby facility. To establish a prima facie case of retaliation
under Title VII, “the plaintiff must show (1) that [he] engaged in statutorily protected
expression; (2) that [he] suffered an adverse employment action; and (3) that there is some
causal relation between the two events.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,
1363 (11th Cir. 2007). If a plaintiff makes out his prima facie case of retaliation, “the burden
shifts to the defendant to rebut the presumption of retaliation by producing legitimate reasons
for the adverse employment action.” Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056,
1059 (11th Cir. 1999); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03
(1973). Then, if the defendant offers legitimate reasons, the presumption of retaliation
disappears and the burden shifts back to the plaintiff to show that the employer’s proffered
reasons for taking the adverse action were pretext for prohibited retaliatory conduct.
Sullivan, 170 F.3d at 1059.
Anderson claims that Georgia-Pacific retaliated against him for his EEOC complaint
about race discrimination at the Thorsby facility by (1) not allowing Anderson to come back
to work in May 2008 after his doctor placed permanent restrictions on his work environment;
Although in his Complaint, Anderson cites the ADA to support his retaliation claim, in
its summary judgment brief, Georgia-Pacific correctly characterizes Anderson’s retaliation claim
as arising solely under Title VII. Nowhere does Anderson allege that he was retaliated against for
opposing an act or practice made unlawful by the ADA, or for making a charge under the ADA, as
is required to establish an ADA retaliation claim. 42 U.S.C. § 12203(a); Stewart, 117 F.3d at 1278.
Anderson alleges only that Georgia-Pacific retaliated against him for voicing complaints to the
EEOC about Georgia-Pacific’s purported race discrimination, which if proven, would constitute a
violation of Title VII.
(2) refusing to continue to accommodate his disability as it had done in the past by allowing
him to wear a respirator; (3) failing to reassign him to a vacant air-conditioned position that
would not exacerbate his condition; and (4) terminating his employment. (Compl. ¶¶ 39–40;
Pl.’s Corrected Br. in Response, Doc. #78, at 30.)12
Georgia-Pacific argues that Anderson has pointed to no evidence establishing the
requisite causal link between an adverse employment action Georgia-Pacific took against him
and the protected activity in which he engaged. Georgia-Pacific further argues that Anderson
has failed to point to any evidence that Georgia-Pacific’s legitimate, non-discriminatory
reasons for placing him on paid leave, failing to provide the accommodations he requested,
and terminating his employment were pretextual.
As an initial matter, the Court agrees with Georgia-Pacific that Plaintiff has not
pointed to any evidence that would establish the third prong of its prima facie case—that
there was a causal connection between Anderson’s statutorily-protected EEOC charge and
any of Georgia-Pacific’s alleged adverse actions against him.
In order to establish the
requisite “causal link” prong of a prima facie retaliation case, a plaintiff must show that “the
protected activity and the adverse action were not wholly unrelated.” Goldsmith v. City of
Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). At a minimum, the plaintiff must generally
establish, through direct or circumstantial evidence, that “the employer was actually aware
of the protected expression at the time it took the adverse employment action.” Brungart v.
Anderson also alleged in his Complaint that Georgia-Pacific reduced his overtime and
issued him disciplinary warnings in retaliation. (Compl. ¶ 14.) However, because Anderson does
not cite overtime reduction or the disciplinary warnings he received as adverse employment actions
or make any arguments on these allegations in his summary judgment response brief, the Court
considers any retaliation claim based on these allegations to be abandoned. (See Pl.’s Corrected Br.
in Resp., Doc. #78, at 30.)
BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir. 2000).
Although a plaintiff may establish causation by showing that the statutorily-protected
activity and the adverse employment action were close in time, id. at 798–99, temporal
proximity, without more, must be “very close.” Thomas, 506 F.3d at 1364 (citing Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). The Eleventh Circuit has stated that
“a three to four month disparity between the statutorily protected expression and the adverse
employment action is not enough.” Thomas, 506 F.3d at 1364.
Anderson has failed to direct the Court to evidence to prove the requisite causal link
between his EEOC charge and any of the alleged adverse employment actions GeorgiaPacific took against him. First, Anderson has pointed to no direct or circumstantial evidence
that Georgia-Pacific was aware of his EEOC charge. In his response brief, Anderson offers
the following evidence to prove a causal link: (1) Brown’s assertion that Dr. Collins had not
released Anderson back to work; (2) Brown’s refusal to send Anderson to another physician
selected by Georgia-Pacific; and (3) Brown’s basis for deciding that Anderson’s use of a
respirator was not a reasonable accommodation given his medical condition. (Pl.’s Corrected
Br. in Resp., Doc. #78, at 30.) None of this evidence goes to establish that Georgia-Pacific
was aware of Anderson’s EEOC charge. Moreover, the temporal proximity of the protected
activity and the alleged adverse employment actions in this case is insufficient, standing
alone, to show a causal link. The record shows that Georgia-Pacific did not take any alleged
adverse action against Anderson until early June 2008, almost three months after Anderson
filed his EEOC charge on March 12, 2008. The Court concludes that this temporal
proximity, without more, is insufficient to establish the causal link of Anderson’s prima facie
case. See Thomas, 506 F.3d at 1364.
Even if Anderson had satisfied the causal connection prong of his prima facie case,
he has failed to rebut any of Georgia-Pacific’s proffered legitimate, non-discriminatory
reasons for its actions. The Court will address each action in turn.
Placing Anderson on Short-Term Paid Leave
Anderson contends that Georgia-Pacific’s placing him on short-term leave after
receiving the medical documentation from his doctor about his permanent restrictions was
done in retaliation for his EEOC charge of race discrimination. It is undisputed that prior to
receiving the job requirements form that Dr. Collins filled out in May 2008, Georgia-Pacific
had never before received any medical record imposing any permanent medical restrictions
on Anderson. (See Anderson Dep. Ex. 17, Doc. #59-4, at 31–35.) Georgia-Pacific asserts
that it placed Anderson on short-term leave in light of these new permanent restrictions,
because it concluded that the exacerbating conditions Dr. Collins noted on the form were
present throughout the Thorsby facility and that it could not reasonably exclude Anderson
from all of these conditions.
Anderson has presented no evidence that would allow a reasonable juror to conclude
that the company’s reliance on Dr. Collins’s permanent restrictions in placing Anderson on
sick leave was merely pretextual. In his response brief, Anderson makes the broad statement
that Georgia-Pacific does not have a legitimate, non-discriminatory reason for denying
Anderson’s requests for a reasonable accommodation and refers the Court to the reasoning
he offered to establish his prima facie case. Accordingly, the only evidence to which
Anderson directs the Court to rebut Georgia-Pacific’s legitimate, non-discriminatory reason
for placing him on short-term paid leave is the evidence he cited to support the causal link
prong of his prima facie case.13
The Court recognizes that a plaintiff may rebut the defendant’s proffered nondiscriminatory reasons with “previously produced evidence establishing the prima facie case
sufficient to permit a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment decision,” Combs v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). However, the Court finds
Anderson’s statement that Georgia-Pacific’s proffered reasons were not legitimate, which
he fails to support with any specific evidence or argument, is an insufficient rebuttal to
Georgia-Pacific’s legitimate, non-discriminatory reason for removing him from the Thorsby
facility. Thus, Anderson’s retaliation claim as to Georgia Pacific’s placing him on short-term
paid leave fails.
Failing to Accommodate Anderson’s Requests To Wear a Respirator or To
Anderson alleges that Georgia-Pacific’s refusal to accommodate his requests to wear
a respirator and to be reassigned to an air-conditioned position were done in retaliation for
his EEOC complaint.
However, Georgia-Pacific has provided evidence that it did not
consider this to be a reasonable accommodation because of the 2002 test results showing that
Anderson pointed to the following evidence to establish the causal link prong of his
prima facie case: (1) Brown’s assertion that Dr. Collins had not released him back to work, (2)
Brown’s refusal to send Anderson to another physician selected by Georgia-Pacific; and (3) Brown’s
reliance on the 2002 pulmonary function test results and on the plant safety manager’s representation
about Anderson’s ability to wear a respirator in deciding that Anderson’s use of a respirator was not
a reasonable accommodation. (Pl.’s Corrected Br. in Resp., Doc. #78, at 30.)
Anderson had failed a pulmonary functions test, Georgia-Pacific’s understanding that
Anderson had been removed from the safety rescue team because he could not wear a
respirator, and Anderson’s own representation that his lung condition had deteriorated since
the test was conducted in 2002. (Brown Aff. ¶¶ 9–10, Doc. #58-1.)
As for Georgia-
Pacific’s alleged refusal to reassign Anderson to a vacant position in an air-conditioned
booth, Georgia-Pacific has presented evidence that it considered whether there were available
positions that Anderson could perform, but it determined none were available.
The Court finds that these are legitimate, non-discriminatory reasons for failing to
provide Anderson with his requested accommodations, which Anderson must rebut in order
for his retaliation claims to survive summary judgment. For the reasons stated previously,
Anderson has provided no such rebuttal.
Terminating Anderson’s Employment
Georgia-Pacific administratively terminated Anderson’s employment in December
2008. Anderson alleges that this final termination was in retaliation for his EEOC
discrimination complaint against the company. However, Georgia-Pacific has explained and
offered evidence that the decision to terminate Anderson was based on its determination that
there was no accommodation it could make that would allow Anderson to perform the
essential functions of his job. Again, Anderson has not directed the Court to any evidence
to rebut this legitimate reason for his final termination. Moreover, it is undisputed that, after
going on paid leave, Anderson never submitted any further documentation from Dr. Collins
or any other physician notifying Georgia-Pacific that his medical condition had improved and
that the permanent restrictions on his exposure to dust, fumes, chemicals, extreme heat, and
humidity no longer applied. Because Anderson has failed to adequately rebut GeorgiaPacific’s evidence of its non-discriminatory reasons for taking any adverse employment
action, Anderson’s retaliation claim fails as a matter of law.
For the reasons stated above, it is hereby ORDERED that Defendant’s Motion for
Summary Judgment (Doc. #57) is GRANTED. A final judgment in this case is forthcoming.
DONE this the 26th day of April, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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