Posey v. Hyundai Motor Manufacturing Alabama et al

Filing 50

MEMORANDUM OPINION AND ORDER: it is ORDERED that Plf's and Dft's 47 & 48 objections are OVERRULED; the Magistrate Judge's 46 Recommendation is ADOPTED; and Dft's 40 Motion for Judgment on the Pleadings is GRANTED in part and DENIED in part, consistent with this opinion. Signed by Chief Judge William Keith Watkins on 3/22/2017. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
DANIEL POSEY,
Plaintiff,
v.
HYUNDAI MOTOR
MANUFACTURING ALABAMA,
Defendant.

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CASE NO. 2:15-CV-787-WKW

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Plaintiff Daniel Posey brings this employment discrimination action against
his former employer, Hyundai Motor Manufacturing Alabama (HMMA), under the
Americans with Disabilities Act (ADA). Posey alleges that HMMA punished and
eventually fired him, at least in part, because of his disability: Crohn’s Disease. His
complaint articulates two ADA theories under which he alleges HMMA is liable for
its past conduct: (1) failure to accommodate Plaintiff’s disability; and (2) intentional
discrimination via wrongful termination. (Doc. # 37, at 10–13.)
Plaintiff originally brought this claim against both HMMA and The Hartford
Comprehensive Employee Benefit Services Company (Hartford), the third-party
administrator responsible for managing FMLA leave requests for HMMA. (Doc.
# 1.) However, Plaintiff voluntarily dismissed his claims against Hartford before the

filing of the instant motion.1 (Doc. # 31) Before the court now is HMMA’s Motion
for Judgment on the Pleadings. (Doc. # 40.) The motion was fully briefed for the
Magistrate Judge, who recommended that the court grant the motion as to Plaintiff’s
failure-to-accommodate claim and deny it as to his intentional discrimination claim.
(Doc. # 46.) Both parties objected to that assessment––Plaintiff arguing the motion
should be denied in full (Doc. # 47) and Defendant arguing it should be granted in
full (Doc. # 48). After a thorough review of the record, the objections are due to be
overruled; the Magistrate Judge’s Recommendation is due to be adopted; and
Defendant’s Motion for Judgment on the Pleadings is due to be granted in part and
denied in part for the reasons set forth below.
II. STANDARD OF REVIEW
A.

For the Recommendation of a Magistrate Judge
The court reviews de novo a Magistrate Judge’s recommendation to which

objections have been filed. 28 U.S.C. § 636(b)(1).
B.

For a Motion for Judgment on the Pleadings
“Judgment on the pleadings is appropriate where there are no material facts in

dispute and the moving party is entitled to judgment as a matter of law.” Perez v.
Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014) (quoting Cannon v. City of

1 Defendant does not disclaim liability for Hartford’s actions. The court thus assumes for
purposes of this order that, to the extent Hartford acted wrongfully in its capacity as Defendant’s
third-party administrator, Defendant is liable.

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W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)). When ruling on a motion
for judgment on the pleadings, the court “accept[s] as true all material facts alleged
in the non-moving party’s pleading” and views those facts “in the light most
favorable to the non-moving party.” Perez, 774 F.3d at 1335. The “pleadings”
include both the complaint and the answer, see Fed. R. Civ. P. 7(a), and “[a] copy of
any written instrument which is an exhibit to a pleading,” Fed. R. Civ. P. 10(c). 2 If
the pleadings admit of any material dispute of fact, judgment on the pleadings must
be denied. Id.
III. FACTS
Plaintiff began working for Defendant on June 20, 2005, and in 2013 was
diagnosed with Crohn’s disease—a condition that causes chronic inflammation of
the gastrointestinal tract.

The symptoms of Crohn’s disease—which include

abdominal cramping and pain, diarrhea, nausea, fever, and loss of appetite, among
other things—can be severe enough to require time off work. On at least five
occasions between May 2013 and May 2014, Plaintiff applied for medical leave

Here, in addition to the Amended Complaint (Doc. # 37) and Answer (Doc. # 38), the
court considers three attachments that Defendant provided with the latter. The law on this is
slightly more complicated, but no less clear: Courts may consider an attachment to an answer if
the attachment is both “(1) central to the plaintiff’s claim; and (2) undisputed.” Horsley v. Feldt,
304 F.3d 1124, 1134 (11th Cir. 2002). “Undisputed” in this context only means that “the
authenticity of the document is not challenged.” Id. The court finds that the attachments to
Defendant’s answer in this case are central to Plaintiff’s claim, and their authenticity is not
challenged. Thus, all three exhibits are considered in the evaluation of Defendant’s Motion for
Judgment on the Pleadings.
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under the Family Medical Leave Act (FMLA) because of Crohn’s-related
symptoms. On “at least four of these occasions,” Hartford denied his leave requests
for his failure to qualify under FMLA. (Doc. # 37, at 9.) Plaintiff contends that his
requests for FMLA leave also constituted requests for reasonable accommodation
under the ADA.
On May 27, 2014, due to poor attendance, management placed Plaintiff in
HMMA’s “Formal Discussion” phase of corrective action—the second step of the
disciplinary procedure HMMA administers to absentee employees. It is used for
“more serious performance issues” or “if a Team Member fails to correct an existing
performance issue after receiving an Informal Discussion.” (Doc. # 38, Exh. 3.) On
June 3, 2014, after missing more work, management placed Plaintiff in the
“Commitment Discussion” phase of corrective action, which is the third step of
HMMA’s disciplinary procedure. Plaintiff alleges that his absences, i.e., the basis
for the corrective action, were the result of his Crohn’s disease.
Plaintiff soon found himself, after yet another Crohn’s-related absence, in the
third and final step of HMMA’s corrective action program, which requires
employees to write a “commitment letter” stating how they plan to fix whatever
behavioral issues have landed them there. Plaintiff’s commitment letter went above
the call, containing not only a declaration of his commitment to improve his behavior

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but also a bit of additional commentary that will become relevant later. The letter
from June 3, 2014, in full, reads:
I was diagnose[d] with [Crohn’s] disease about a year ago. Through
this time of illness[,] I was hospitalized for internal bleeding for the
period of one week. I almost died. I was out of work for 1 month. Julie
Pitts, Jay Burns and Hartford [were] notified and sent documentation to
back this. After I return[ed] to work[,] I was notified that I was
approved. November-December came, then I was told I was denied by
Hartford and it was to[o] late to get paperwork filled out correctly. I
was put in Phase I by Jay Burns/Team Relations. Around mid-May I
had a flare up and complications again. My [doctor did a] procedure to
make sure I wasn’t bleeding again and corrected my medicine. Julie
Pitts, Rick Henley and Hartford [were] contacted. FMLA was
approved. I was notified one week ago that it was denied because
paperwork hasn’t been received. But it was to[o] late to turn in after I
sent it in personally after I was notified. I was put into Phase II for
attendance. I have been on time, and committed to my job for 9 years.
I am going to do and make extra effort to show up to my job as I have
been. And I give 150% to my team daily. But I feel that I have been
punished for my sickness because of HARTFORD. And I also feel that
since I have documentation this should be removed from my file. As
of this day I pledge to have perfect attendance, as I had, and work
diligently with my Team to get my attendance back to 100%.
(Doc. # 38, at 28.)
On November 6, 2014, Plaintiff missed work again, this time for a reason
unrelated to his Crohn’s disease.

Because of the attendance points he had

accumulated, this absence resulted in termination. On January 12, 2015, after he
was fired, Plaintiff filed an EEOC charge in which he claimed, for the first time, that
HMMA had discriminated against him because of his disability. The bases for the
charge were HMMA’s failure to accommodate Plaintiff’s FMLA leave requests and
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his later termination.

Thereafter, the EEOC issued a right-to-sue letter, and

Plaintiff’s charge blossomed into this lawsuit.
This case presents two issues. The first is whether Plaintiff’s failure-toaccommodate claim is time-barred, given that he filed his EEOC charge 224 days
after the denial of his last formal request for FMLA accommodation. The second is
whether Plaintiff’s wrongful termination claim can go forward despite the fact that
his final absence—the one that ultimately caused HMMA to fire him—had nothing
to do with his disability. The court addresses each issue in turn.
IV. DISCUSSION
To bring an ADA claim in federal district court, a plaintiff must first exhaust
all administrative remedies, a necessary component of which includes the filing of
charges with the EEOC. See Maynard v. Pneumatic Prods. Corp., 256 F.3d 1259,
1262 (11th Cir. 2001). EEOC charges must be filed “within one hundred and eighty
days after the alleged unlawful employment practice occurred.”3 42 U.S.C. § 2000e5(e)(1). It is the plaintiff who carries “the burden of proving all conditions precedent
to filing suit, including the condition that he timely filed with the EEOC.” Maynard,
256 F.3d at 1262.

3 “[T]he period for filing a charge with the EEOC may be extended to 300 days if the
complainant first files a timely charge in a state or local agency in a ‘deferral state.’” Maynard,
256 F.3d at 1262–63 (explaining the difference between “deferral” states and “non-deferral”
states). “Alabama is not a deferral state.” Schweers v. Montgomery Public Schools, 511 F. Supp.
2d 1128, 1135 (M.D. Ala. 2007). Thus, the period for filing an EEOC charge is 180 days.

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However, the untimely filing of an EEOC charge does not always kill an ADA
claim. Under the doctrine of equitable tolling, courts may “toll the statute of
limitations until such a time that the court determines would have been fair for the
statute of limitations to begin running on the plaintiff’s claims.” Arce v. Garcia, 434
F.3d 1254, 1261 (11th Cir. 2006). “Equitable tolling is appropriate when a movant
untimely files because of extraordinary circumstances that are both beyond his
control and unavoidable even with diligence.” Id. (quoting Sandvik v. United States,
177 F.3d 1269, 1271 (11th Cir. 1999) (emphasis added)). As such, it is a remedy
that “should be extended only sparingly.” Id. (quoting Justice v. United States, 6
F.3d 1474, 1475 (11th Cir. 1993)). The burden of establishing that equitable tolling
is appropriate also lies with the plaintiff. Id.
After exhausting all administrative remedies, a plaintiff may seek redress for
his ADA claim in federal district court. Broadly speaking, the ADA prohibits
employers from discriminating against “a qualified individual with a disability
because of the disability of such individual 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). Thus, to state a prima facie claim under the ADA, a plaintiff must allege:
“(1) he is disabled; (2) he is a qualified individual; and (3) he was subjected to

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unlawful discrimination because of his disability.” Holly v. Clairson Indus., L.L.C.,
492 F.3d 1247, 1255–56 (11th Cir. 2007). The first two elements are not at issue.
As to the third element, there are several ways a plaintiff can show that his
employer “unlawfully discriminated” under § 12112(a), two of which are relevant
here. First, an employer may unlawfully discriminate by “not making reasonable
accommodations” for the disability of an employee (i.e., a “failure-to-accommodate”
claim). See 42 U.S.C. § 12112(b)(5)(A). Second, an employer may unlawfully
discriminate by “discharg[ing]” an employee “on the basis of disability” (i.e., an
intentional discrimination claim based on a wrongful discharge). See 42 U.S.C. §
12112(a). Plaintiff makes both claims here.
A.

Plaintiff’s ADA Claim for Failure to Accommodate
Neither party disputes that Plaintiff filed his EEOC charge more than 180 days

after the last time HMMA denied one of Plaintiff’s formal requests for leave. Thus,
it would appear that he filed his charge late. Not to go down without a fight, Plaintiff
argues two ways around this. First, he contends that his “commitment letter”
contained an accommodation request to which HMMA did not adequately respond.
As a result, Plaintiff argues that the statutory clock for filing charges did not
commence until his termination—i.e., the moment he realized this last request had
been denied. Second, in the alternative, he argues that equitable tolling applies, and

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he urges the court to hear his claim despite the late filing. Both arguments fail to
persuade.
1.

Plaintiff’s Letter Contained No New Accommodation Request

The Magistrate Judge concluded that Plaintiff’s commitment letter contained
only a request to reconsider previously denied accommodation requests, and
Plaintiff has offered nothing to undermine that conclusion. The only contentions
Plaintiff musters in response are inapposite.
First, Plaintiff claims that HMMA’s bureaucratic relationship with Hartford,
who handled Plaintiff’s leave requests, made it reasonable for him to believe that his
requests had not been fully considered under the ADA. Thus, he argues, “a
reasonable jury could infer that due to the bureaucracy involved, the full details of
Plaintiff’s disability-related need for intermittent leave had not been communicated
to [HMMA] by [Hartford] prior to this time.” (Doc. # 47, at 13.) Plaintiff further
speculates that, under this theory, the commitment letter’s request for HMMA to
remove certain discipline from his file could have been one “that [HMMA] may
have been hearing for the first time.” (Doc. # 47, at 13.)
Putting aside that it is based entirely on speculation, this argument fails to
address the Magistrate Judge’s conclusion that the commitment letter did not contain
an accommodation request. In other words, the problem with the commitment letter
was not that Plaintiff had already asked for an expungement of his disciplinary
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record, it was that such a request does not constitute a request for accommodation.
(Doc. # 46, at 10–11.) The closest Plaintiff’s commitment letter comes to making
an “accommodation request” is when it expresses Plaintiff’s views that he had been
“punished for [his] sickness” and that the absences “should be removed from [his]
file.” (Doc. # 38, at 28.) However, it is well-settled that “[m]ere requests to
reconsider . . . cannot extend the limitations period applicable to civil rights laws.”
Delaware State Coll. v. Ricks, 449 U.S. 250, 261 n. 15 (1980). Other courts have
similarly noted that “requests for reconsideration of a previously denied request”
may not “revive a time-barred claim.” Long v. Howard Univ., 512 F. Supp. 2d 1, 17
(D.D.C. 2007). The plain language of the commitment letter will not support the
conclusion that Plaintiff was asking for anything but a reconsideration of requests
that had been previously denied. (Doc. # 38, at 28 (“I feel that I have been punished
for my sickness . . . [and] that since I have documentation this should be removed
from my file.”).) Therefore, the Magistrate Judge did not err in finding that “the
letter does not suffice as a request for reasonable accommodation for purposes of
triggering a new 180-day limitations period.” (Doc. # 46, at 11.)
Second, Plaintiff argues that, by failing to respond to the commitment letter,
HMMA shrugged its responsibility to participate with Plaintiff in an “interactive
process,” wherein both parties in good faith attempt to settle on a proper
accommodation for the plaintiff’s disability. (Doc. # 47, at 5–6.) But again,
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Plaintiff’s argument relies on the false premise that his commitment letter contained
a request for accommodation. To the extent HMMA had refused to engage in the
interactive process when it denied Plaintiff’s prior requests for accommodation,
Plaintiff may have had a valid ADA claim to bring on that basis. However, the
interactive process ended when HMMA denied Plaintiff’s requests, and a claim
based on that breakdown is now time-barred. Unless Plaintiff establishes that he
made another request for accommodation, he cannot now sue on the ground that
HMMA failed to engage in an “interactive process” with him. (Doc. # 47, at 8.) A
contrary holding would render meaningless the Supreme Court’s declaration that
“requests to reconsider . . . cannot extend the limitations period.” Ricks, 449 U.S. at
261 n. 15. If Plaintiff’s commitment letter, despite not making an accommodation
request, enabled Plaintiff to sue based on Defendant’s failure to engage in the
interactive process, then it would have the effect of extending the limitations period
on a time-barred claim. As the court has already demonstrated, Plaintiff has failed
to show that his commitment letter contained a request for accommodation. Thus,
Defendant’s failure to respond is not actionable under the ADA, and the Magistrate
Judge did not err in rejecting Plaintiff’s second argument.
To the extent that the rest of Plaintiff’s objections are recycled versions of the
same basic argument—e.g., that his claim was timely because of “the continuing
nature of the interactive process” (Doc. # 47, at 4); or that the disciplinary process
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he underwent should have been considered part of the interactive process (Doc. #
47, at 9–10); or that he was reasonable to expect HMMA to respond to his
commitment letter (Doc. # 47, at 10)—they are severally overruled.
2.

Equitable Tolling Does Not Apply

The Magistrate Judge concluded that Plaintiff’s “Amended Complaint does
not contain factual allegations establishing any extraordinary circumstance
deserving of equitable tolling.” (Doc. # 46, at 16.) Plaintiff has failed to object to
this conclusion. Accordingly, and because the court agrees that Plaintiff has failed
to meet his burden of showing that this “extraordinary remedy” is warranted, see
Arce, 434 F.3d at 1261 (explaining that “plaintiff bears the burden of showing that
such extraordinary circumstances exist”), the Recommendation is due to be adopted.
B.

Plaintiff’s ADA Claim for Intentional Discrimination
Plaintiff’s other ADA cause is based on the claim that HMMA

discriminatorily discharged Plaintiff on the basis of his disability. As to this claim,
the Magistrate Judge concluded that the pleadings are sufficient to state a cause of
action and recommended denial of Defendant’s Motion for Judgment on the
Pleadings. Central to this recommendation was the conclusion that the primary case
on which Defendant relies, United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), is

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distinguishable from Plaintiff’s claim here. Because the court agrees with the
Magistrate Judge’s assessment, the Recommendation is due to be adopted. 4
Defendant argues that Evans entails the untimeliness of Plaintiff’s claim. In
Evans, a female flight attendant sued her employer, United Air Lines, for gender
discrimination under Title VII based on its refusal to credit her with seniority for the
years of employment she logged prior to her discharge in 1968. 431 U.S. at 554. At
the time, United had “maintained a policy of refusing to allow its female flight
attendants to be married.” Id. When plaintiff married in 1968, United forced her to
resign. Id. Subsequently, it was decided that United’s policy violated Title VII;
however, plaintiff did not file a discrimination claim in time to challenge her
discharge. Id. at 554–55. The suit she eventually filed challenged United’s seniority
policy circa 1972, which did not credit the plaintiff for her prior employment. The
question was whether the present effect of the past discriminatory policy provided

The only other argument raised in Defendant’s objections is easily resolved. Defendant
appears to believe that, in order for Plaintiff to state a discrimination claim under the ADA, he
must use the phrase “similarly-situated” in his pleadings. However, Plaintiff uses different words
to say the same thing. (Doc. # 37, at 13 (“Defendant treated non-disabled individuals more
favorably than it treated Plaintiff . . . .”).) In at least three instances the term “similarly-situated”
is both underlined and emboldened. (See, e.g., Doc. # 48, at 4 (faulting Plaintiff’s Amended
Complaint because it “NOWHERE contains the essential ‘similarly-situated’ phrase”)
(emphasis in the original).) But, of course, the court does not judge a complaint based on whether
or not a plaintiff uses whatever magic phrase might apply in a given case; a description of the same
will suffice. See, e.g., Coleman v. Donahoe, 667 F.3d 835, 847 (7th Cir. 2012) (listing factors for
showing that comparators are “similarly-situated,” but observing that “[t]his is not a ‘magic
formula,’ however, and the similarly-situated inquiry should not devolve into a mechanical, ‘oneto-one mapping between employees’”). Regardless, this issue should have been raised on a motion
to dismiss and, instead, was raised for the first time in Defendant’s objections. It is therefore
overruled.
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plaintiff with grounds enough for a Title VII lawsuit, given that her claim on the
policy itself was already time-barred.
The United States Supreme Court held that it did not. In deciding that the
plaintiff had no valid Title VII claim, the Court said that a “discriminatory act which
is not made the basis for a timely charge is the legal equivalent of a discriminatory
act which occurred before the statute was passed.” Id. at 558. Thus, although “the
seniority system gives present effect to a past act of discrimination,” the present
effect was not actionable because the past act was time-barred. Id.
Here, because the absence that ultimately got Plaintiff fired was unrelated to
his disability, Defendant argues that Plaintiff’s termination, like the seniority policy
in Evans, only “g[ave] present effect” to the prior leave request denials that
(conceding arguendo) may have been discriminatory. As in Evans, where the Court
allowed the employer to treat the prior discriminatory act as “merely an unfortunate
event in history which has no present legal consequences,” id., so Defendant argues
the court here should not allow Plaintiff to bring an ADA claim on the basis of his
termination.
Defendant’s argument would be convincing if not for the fact that it ignores
one of Plaintiff’s key allegations, which distinguishes this case from Evans. In his
Amended Complaint, Plaintiff alleges that “Defendant’s articulated reason(s) for
terminating Plaintiff . . . are a pretext for discriminating against him on the basis of
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his disability, perceived disability, or record of disability.” (Doc. # 37, at 10.) This
stands in stark contrast to the seniority policy in Evans, which was not itself
discriminatory. 431 U.S. at 558 (calling the policy “neutral in its operation”).
Plaintiff’s allegations here establish that, for purposes of a judgment on the
pleadings, his termination was a discriminatory act in itself, not merely the effect of
a past act of discrimination, and that it is actionable as such. Thus, while it is true
that the “present effect” of a past action will not breathe new life into a time-barred
claim, it is no less true that a new act of discrimination will give a plaintiff new cause
for suit. This is precisely what Plaintiff alleges here. And, because Plaintiff’s
termination does not appear to be required by HMMA’s disciplinary policies (see
Doc. # 38, at 27 (advising employees that “failure to correct the problem may result
in the termination of your employment”)), his allegation that Defendant terminated
him “on the basis of his disability” is plausible on its face.
V. CONCLUSION
For all of the foregoing reasons, it is ORDERED that Plaintiff’s and
Defendant’s

objections

are

OVERRULED;

the

Magistrate

Judge’s

Recommendation is ADOPTED; and Defendant’s Motion for Judgment on the
Pleadings is GRANTED in part and DENIED in part, consistent with this opinion.
DONE this 22nd day of March, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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