Corbin et al v. Jackson Hospital & Clinic, Inc.

Filing 49

MEMORANDUM OPINION AND ORDER: It is ORDERED as follows: (1) Defendant's 27 Motion for Summary Judgment is GRANTED, and summary judgment is hereby entered in defendant's favor on all claims. (2) The Clerk of Court is DIRECTED to close this file. A separate final judgment will be entered. Signed by Honorable Judge Susan Russ Walker on 12/3/2018. (dmn, ). Signed by Honorable Judge Susan Russ Walker on 12/3/2018. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JACOB CORBIN,
Plaintiff,
v.
JACKSON HOSPITAL & CLINIC,
INC.,
Defendant.

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CASE NO.: 2:16-cv-800-SRW

MEMORANDUM OPINION AND ORDER1
Plaintiff Jacob Corbin brings this action against defendant Jackson Hospital &
Clinic, Inc. (“Jackson”), alleging disability discrimination and retaliation pursuant to the
Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), as amended by
the ADA Amendments Act (the “ADAAA”), and the Rehabilitation Act, 29 U.S.C. § 701
et seq. (the “RA”). See Doc. 1.2 Jackson is a healthcare provider and hospital located in
Montgomery County, Alabama. Corbin was hired by the defendant in 2002 and fired in
November of 2013. During his employment, Corbin reached the position of “team leader”
within the defendant’s Information Technology (“IT”) department. Plaintiff held the team
leader job title until his termination. This lawsuit concerns allegations of discrimination

1

The parties consented to final dispositive jurisdiction by a Magistrate Judge pursuant to 28 U.S.C.
§ 636(c). See Doc. 16; Doc. 17.
2

References herein to “Doc. __” are to the document numbers assigned to the pleadings, motions,
and other materials, as reflected on the docket.

1

related to plaintiff’s purported disability, as well as allegations that the defendant retaliated
against Corbin due to that disability.
This cause is presently before the court on defendant’s motion for summary
judgment. See Doc. 27. Plaintiff filed a response in opposition to the motion, see Doc. 47,
and Jackson replied, see Doc. 48. Upon review of the motion and the record, the court
concludes that defendant’s motion for summary judgment is due to be granted.
SUMMARY JUDGMENT STANDARD
A movant is entitled to summary judgment if he “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). For summary judgment purposes, an issue of fact is “material” if,
under the substantive law governing the claim, its presence or absence might affect the
outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the
movant fails to satisfy its initial burden, the motion for summary judgment will be denied.
Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). If the movant
adequately supports its motion, the burden shifts to the opposing party to establish – “by
producing affidavits or other relevant and admissible evidence beyond the pleadings” –
specific facts raising a genuine issue for trial. Josendis v. Wall to Wall Residence Repairs,
Inc., 662 F.3d 1292, 1315 (11th Cir. 2011); Dietz v. Smithkline Beecham Corp., 598 F.3d
812, 815 (11th Cir. 2010); Fed. R. Civ. P. 56(c)(1)(A). “All affidavits [and declarations]
must be based on personal knowledge and must set forth facts that would be admissible
under the Federal Rules of Evidence[.]” Josendis, F.3d at 1315; Fed. R. Civ. P. 56(c)(4).

2

The court views the evidence and all reasonable factual inferences in the light most
favorable to the nonmovant. Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC,
702 F.3d 1312, 1316 (11th Cir. 2012); Fed. R. Civ. P. 56(c)(4). However, “[i]f no
reasonable jury could return a verdict in favor of the nonmoving party, there is no genuine
issue of material fact and summary judgment will be granted.” Morton v. Kirkwood, 707
F.3d 1276, 1284 (11th Cir. 2013) (citation omitted) (internal quotation marks omitted).
BACKGROUND AND RELEVANT FACTS3
I.

Plaintiff’s Employment at Jackson

Jackson’s IT department maintained the hospital’s computer systems, including its
internet networks, telephone systems, and other electronic and cyber resources. See Doc.
47-19 at 2. The IT department was managed by a director, who was responsible for three
teams within the department: the financial team, the clinical team, and the infrastructure
team. Id. The infrastructure team oversaw the hospital’s networks, telephones, and internet
connectivity. Id. Until early November of 2013, a “team leader” supervised each of the
three teams. Id.

3

As is required, the court has viewed the evidence presented on the motion for summary judgment
in the light most favorable to the plaintiff. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.
1992). These are the facts for summary judgment purposes only. They may or may not be the
actual facts that could be proven at trial. See Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d
1386, 1400 (11th Cir. 1994) (“[W]hat we state as ‘facts’ in this opinion for purposes of reviewing
the rulings on the summary judgment motion [ ] may not be the actual facts.”) (citation and marks
omitted). Also, the facts set out herein are derived from the parties’ evidentiary submissions and
the court’s own examination of the record; they are not taken from counsels’ unsubstantiated
statements in the parties’ briefs. “Statements by counsel in briefs are not evidence.” Skyline Corp.
v. N.L.R.B., 613 F.2d 1328, 1336 (5th Cir. 1980). See also Bonner v. City of Prichard, Ala., 661
F.2d 1206, 1209 (11th Cir. 1981) (holding that decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981, are binding in the Eleventh Circuit).
3

Jacob Corbin began working at Jackson in 2002, and ultimately obtained the
position of infrastructure team leader. See Doc. 1 at 2. In this position, Corbin’s
responsibilities included duties having to do with the hospital’s technological
infrastructure. See Doc. 47-19 at 2. During at least some of Corbin’s time as infrastructure
team leader, Kris Carpenter was the director of the IT department and Corbin’s supervisor.
See Doc. 47-1 at 9. In September of 2013, the defendant hired Michael James to be the new
Vice President (“VP”) and Chief Operating Officer (“COO”). See Doc. 47-19 at 1. In this
role, James was responsible for the oversight and maintenance of the Hospital’s IT systems.
Id. at 2.
II.

Plaintiff’s Diagnosis

In 2010,4 Corbin was diagnosed with narcolepsy with cataplexy by Dr. Rubin
Richardson. See Doc. 47-1 at 16. Corbin avers that, shortly thereafter, he notified Carpenter
of this diagnosis. Id. at 16. Corbin attests that the narcolepsy with cataplexy caused him
increased sleepiness and memory loss. Id. at 3-4.
Following this diagnosis, Corbin says that he felt pressured by Carpenter to explain
his condition publicly at a department meeting. Id. at 22. Moreover, Carpenter notified a
vendor that Corbin would not be available in the early morning or late at night due to his
narcolepsy. Id. at 23. Also, Samantha Ivery claimed to have once heard someone at work
make a joke about narcolepsy during her time as a member of Jackson’s IT department;
Ivery, however, could not recall any specifics regarding the joke, including which

4

The year 2009 is also cited in the record. See Doc. 47-1 at 5.
4

employees may have been involved or who it may have been about. See Doc. 47-4 at 2.
Similarly, Andy Johnson, a former member of Jackson’s IT department, claimed that
Corbin’s “narcolepsy was a joke in the IT department,” but did not elaborate with specific
details. See Doc. 47-17 at 3.
III.

Plaintiff’s Complaints

On February 11, 2013, Corbin submitted his first internal complaint alleging that
Carpenter was discriminating against him based on a disability. See Doc. 47-20. Corbin
says that Carpenter’s hostility towards him, and Carpenter’s attempt to change his job
description, prompted him to file this initial complaint. See Doc. 47-1 at 26. As part of his
complaint, Corbin alleged, among other things, that Carpenter “does not communicate
effective[ly],” that Carpenter yells at him, that Carpenter gives him a “hard time about
accommodating his disability,” and that she “criticizes his team in front of other directors.”
See Doc. 47-21. In order to investigate and address this complaint, Gilbert Darrington,
Jackson’s Director of Human Resources, met with Carpenter and Corbin on February 18,
2013. Id. At this meeting, Carpenter agreed to accommodate Corbin’s disability and to
meet with the staff in order to address any rumors involving Corbin. Id. Darrington also
advised Carpenter that she could not alter Corbin’s job description “after the fact” given
that there was no business reason for the change and “because [Corbin] had a disability
that prevented [him] from filling that position.” See Doc. 47-1 at 21. Notably, Corbin
testified that he does not believe that he “ever requested any type of accommodation” for
his narcolepsy. Doc. 27 at 15.

5

IV.

Plaintiff’s Job Performance

Most of the time, Carpenter designated Corbin a “role model” employee. See Doc.
47-1 at 27. The “role model” distinction was the highest category that an employee could
receive as part of an evaluation. Id. at 25. Further, an employee’s pay was influenced by
the evaluations; in other words, the higher the evaluation, the higher the pay increase for
the year. Id.
Corbin characterizes the June 2013 evaluation—during which he was assessed as
“exceed[ing] standards,” one level below “role model” status—as retaliation on the part of
Carpenter due to Corbin’s complaints. Id. at 25. However, according to Carpenter, Corbin’s
February 2013 complaint did not factor into her evaluation of him. See Doc. 27 at 79. Also,
Carpenter avers that she was directed to adjust her department’s evaluations in order to
decrease the amount in raises its members would receive for the year. Id. at 75.
Michael Ritzus, Jackson’s VP of outpatient services, had a number of work-related
interactions with Corbin. See Doc. 27 at 47. Ritzus describes Corbin’s behavior as
unprofessional and his work as negligent, and he shared these thoughts with Carpenter. Id.
at 53. On July 29, 2013, Ritzus became so frustrated with the IT department, and with
Corbin, that he drafted a memorandum detailing the issues. See Doc. 47-9 at 1. Corbin was
also issued a written warning setting out complaints made against him due to his “[p]oor
job performance.” Doc. 47-9 at 2-3. On September 19, 2013, after receiving this written
warning, Corbin responded with a lengthy complaint describing his interactions with
Carpenter, among others, and the alleged discrimination that he suffered due to his
disability. See Doc. 47-8.
6

When the situation did not improve, Ritzus took his complaint to Joe Riley,
Jackson’s Chief Executive Officer (“CEO”). See Doc. 27 at 54. Based on conversations
between Ritzus and Riley, it became clear to Ritzus that Jackson’s IT department was not
performing well, and its struggles were having an adverse effect on the hospital’s
objectives. Id. at 54-56. Due to the IT department’s issues, Riley, Jackson’s CEO, hired
Jackson Thornton Technologies (“JTT”), an external IT consulting firm, to perform an
audit of the department and to make recommendations to improve its performance. See
Doc. 47-19 at 2.
V.

JTT’s Audit and the Microsoft Licenses

When he became Jackson’s new VP and COO, James was presented with JTT’s
final report. See Doc. 47-19 at 3. The JTT report underscored significant problems within
the IT department’s infrastructure team, particularly with Corbin’s reported poor
management. Id. In order to address JTT’s findings and recommendations, Riley and James
discussed restructuring the IT department and its management. Id.
While JTT conducted its review, Microsoft conducted a software audit. Id. The IT
department and its leadership team, Carpenter and Corbin, were responsible for
maintaining software licensing. See Doc. 48 at 15-16. As part of its report, JTT warned that
Microsoft imposes significant financial penalties on companies whose software licenses
are not in compliance. See Doc. 47-19 at 3. In October of 2013, Microsoft determined that
Jackson was not in compliance and, as a result, asked for payment of over $300,000.00. Id.

7

VI.

Plaintiff’s Termination

On November 11, 2013, Darrington informed Corbin by letter that Jackson had
eliminated his position and that his employment was terminated. See Doc. 47-12; see also
Doc. 47-13. Darrington avers that he was present at a subsequent meeting where the issue
with the Microsoft licenses was cited, at least in part, as the reason for the removal of both
Carpenter and Corbin. See Doc. 47-2 at 3. Riley, the CEO, and James, the COO, decided
to allow Carpenter to resign and to eliminate Corbin’s position. See Doc. 47-19 at 3-4.
Riley and James made this decision in response to the JTT report and the Microsoft
software audit. Id. at 3-4. Corbin’s position, Infrastructure Team Leader, was never again
opened or filled. Id. at 4.
VII.

Plaintiff’s Lawsuit Against Jackson

In September of 2016, Plaintiff filed this lawsuit.5 The complaint contains the
following claims of violation of the ADA and the RA against Jackson6: (1) wrongful
termination, (2) denial of reasonable accommodation, (3) retaliatory hostile work
environment, and (4) prima facie retaliation.7 The court will address each claim in turn.

5

Pursuant to a joint stipulation filed by the parties, see Doc. 41, the court dismissed with prejudice
all claims asserted in the complaint, Doc. 1, by Andy Johnson. See Doc. 43.
6

Corbin has brought his claims under both the ADA and the RA. As a general proposition, the
same legal standards govern both statutes, and decisional authority applying one or the other may
be used interchangeably. See Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1316 n.3 (11th Cir.
2009) (“Because the same standards govern discrimination claims under the Rehabilitation Act
and the ADA, we discuss those claims together and rely on cases construing those statutes
interchangeably.”).
7

The plaintiff does not appear to make a claim in the complaint for disparate treatment
discrimination under the ADA. See Doc. 1. The plaintiff attempts to assert an ADA claim for
disparate treatment in his brief in opposition to the motion for summary judgment. See Doc. 47 at
8

DISCUSSION
1. Wrongful Termination Claim
Plaintiff contends that defendants terminated his employment because of his
disability, in violation of the ADA and the RA. Because there is no direct evidence
of discrimination, Corbin’s claim turns on the traditional McDonnell Douglas burdenshifting analysis. See, e.g., Holly v. Clairson Industries, L.L.C., 492 F.3d 1247, 1255 (11th
Cir. 2007) (“Under the controlling law in this Circuit, the burden-shifting analysis of Title
VII employment discrimination claims is applicable to ADA claims.”)(citation and
internal punctuation omitted); Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189,
1193 (11th Cir. 2004)(applying McDonnell Douglas circumstantial evidence framework
in ADA context); Wascura v. City of South Miami, 257 F.3d 1238, 1242 (11th Cir. 2001)
(“In the absence of direct evidence of discrimination, a plaintiff may establish a prima
facie case of an ADA violation . . . using the familiar burden-shifting analysis employed in
Title VII employment discrimination cases.”) (footnote omitted).

22 (“Jackson Hospital’s decision to ask Ms. Carpenter to resign the same day as Mr. Corbin was
given his notice supports Mr. Corbin’s claim that he was subjected to disparate treatment.”).
However, because this claim is not pled in the complaint, it is not before the court. Pursuant to
Federal Rule of Civil Procedure 8(a), a plaintiff’s complaint or amendments thereto must set out
the plaintiff’s claims for relief, and “[a] plaintiff cannot amend a complaint through an argument
in a brief opposing summary judgment.” Nickson v. Jackson Hosp. & Clinic Inc., 2017 WL
4366735, at *4 (M.D. Ala. Sept. 29, 2017) (citing Hall v. Dekalb Cty. Gov’t, 503 F. App’x 781,
786 (11th Cir. 2013)). Nevertheless, the court has considered this claim on its merits and, based
on the same reasons discussed infra concerning the other claims, it arrives at the same conclusion
– that is, the plaintiff cannot show that the defendant’s proffered reason is pretext, nor can he
establish a prima facie case. The defendant is thus entitled to summary judgment on plaintiff’s
purported disparate treatment claim.
9

Under this approach, the burden initially rests with the plaintiff to establish a prima
facie case of discrimination, after which the burden of production shifts to the defendant to
articulate

a

legitimate

non-discriminatory

reason

for

the

challenged

action. See Cleveland, 369 F.3d at 1193; Wascura, 257 F.3d at 1242-43. After a nondiscriminatory reason is given, the plaintiff is “left with the ultimate burden of proving that
[the

defendant]

intentionally discriminated against

her

because

of

her

disability.” Cleveland, 369 F.3d at 1193; see also Wascura, 257 F.3d at 1243.
To establish a prima facie case under the ADA and the RA, Corbin must show (1)
that he has a disability; (2) that he is a qualified individual, meaning that he can perform
the essential functions of his job, with or without a reasonable accommodation; and (3) that
the employer discriminated against him because of his disability. See Greenberg v.
BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007).
First, the defendant contends that plaintiff cannot establish a prima facie case of
discriminatory discharge because he does not have a disability under the ADA or RA. Doc.
28 at 10-11. Corbin maintains that he is disabled under the ADA. Doc. 47 at 7-8.
The ADA defines a disability as (1) a physical or mental impairment that
substantially limits one or more major life activities, (2) a record of such impairment, or
(3) being regarded as having such an impairment. 42 U.S.C. § 12102(1). Under the
ADAAA, the term “substantially limits” is to be broadly interpreted so as to allow for the
greatest coverage. Cooper v. CLP Corp., No. 2:13-CV-02152-JEO, 2015 WL 9311964, at
*3 (N.D. Ala. Dec. 23, 2015). The ADAAA provides that “sleeping” is an example of a
major life activity. 42 U.S.C. § 12102(2)(A).
10

As noted above, the plaintiff alleges that he suffers from narcolepsy with cataplexy.
It is undisputed that narcolepsy is a physical impairment, so Corbin must only show, to
qualify under the first prong, that his narcolepsy substantially limits a major life activity.
See Abbott v. Elwood Staffing Services, Inc., 44 F. Supp. 3d 1125, 1166 (N.D. Ala. July
31, 2014) (“even assuming that the plaintiff had a pregnancy related impairment, the
plaintiff was not suffering from a disability unless that impairment substantially limits a
major life activity”) (emphasis in original). The court finds that the plaintiff has
demonstrated that he has a disability under the ADAAA. The plaintiff testified that the
narcolepsy with cataplexy limits him in a substantial way. Although he is still able to work
and participate in other life activities, he has increased sleepiness and memory loss. See
Doc. 47-1 at 3-4. Certain work schedule changes, such as an earlier start time, would have
made it either very difficult or impossible for him to do his job due to his disability. Id. at
17.
Corbin also argues that he is a qualified individual under the ADA because he is
able to perform the essential functions of his position, with or without reasonable
accommodation. See Doc. 47 at 9-10. Jackson does not appear to contest the second prong
of Corbin’s prima facie case. See Doc. 28 at 9.
Finally, the defendant contends that plaintiff cannot establish the third prong of
a prima facie case because Corbin was not discriminated against due to his narcolepsy with
cataplexy, since there is no evidence that the decisionmaker possessed actual knowledge
of his disability at the time of the termination decision. It is well-established in this circuit
that “a decision-maker who lacks actual knowledge of an employee's disability cannot fire
11

the employee ‘because of’ that disability.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186
(11th Cir. 2005). In other words, “an employee cannot be fired ‘because of’ a disability
unless the decisionmaker has actual knowledge of the disability.” Id. at 1185 (explaining
that constructive knowledge is not enough); see also Howard v. Steris Corp., 550
Fed.Appx. 748, 751 (11th Cir. 2013) (“Liability under the ADA requires the employer to
have discriminated because of the employee's disability as the employer had actual
knowledge of the alleged disability at the time it took adverse employment action.”).
Therefore, as part of his prima facie showing, plaintiff must present evidence that Riley
and James, the individuals charged with the termination decision, had actual knowledge of
his disability. Notably, Carpenter was not involved in Corbin’s termination; in fact, she
herself was forced to resign. See Doc. 47-19 at 3-4.
While James does not unequivocally say that he was unaware of plaintiff’s disability
at the time he and Riley decided to terminate Corbin’s employment, James does aver that
the decision was based on the JTT report and the Microsoft licensing issue, and plaintiff
offers no evidence to the contrary. See Doc. 47-19 at 3-4. Also, plaintiff presents no
evidence that Riley had actual knowledge of his disability.8 For the foregoing reasons,
Plaintiff cannot establish a prima facie case of disability discrimination under either
the ADA or the RA.

8

Riley was not deposed, and did not submit an affidavit.
12

A. Defendant’s Stated Reasons for the Termination
Even if Corbin has established a prima facie case, Jackson argues that it is entitled
to summary judgment because Corbin cannot demonstrate that the reason given for the
termination is pretext. See Doc. 28 at 14-15. Jackson maintains that it terminated Corbin’s
position based on recommendations contained in the JTT report and due to the issues with
the Microsoft licenses.
Shortly after becoming Jackson’s new VP and COO, James was presented with
JTT’s final report. See Doc. 47-19 at 3. The JTT report underscored significant problems
within the IT department’s infrastructure team, particularly with Corbin’s reportedly poor
management. Id. In order to address JTT’s findings and recommendations, Riley and James
discussed restructuring the IT department and its management. Id. 9
While JTT was conducting its review, Microsoft was conducting a software audit.
Id. The IT department and its leadership team, Carpenter and Corbin, were responsible for
maintaining software licensing. See Doc. 48 at 15-16. As part of its report, JTT warned that
Microsoft imposes significant financial penalties on companies whose software licenses
are not in compliance. See Doc. 47-19 at 3. In October of 2013, Microsoft determined that
Jackson was not in compliance and asked for payment, by November of 2013, of over
$300,000.00 as a consequence. Id. On November 11, 2013, Corbin was informed by letter

9

Corbin does not specifically dispute the problems highlighted in the JTT report. He argues only
that the issue with the licenses was not actually his fault, given that, according to Carpenter’s
deposition, someone else was perhaps responsible for actually organizing the payment of the
licenses. However, Carpenter herself, and also James, testified that both Carpenter and Corbin
were responsible for the Microsoft licensing issue.
13

from Darrington that Jackson had eliminated his position and that his employment was
terminated. See Doc. 47-12; see also Doc. 47-13. Darrington avers that he was present at a
subsequent meeting at which the issue with the Microsoft licenses was cited, at least in
part, as the reason for the removal of both Carpenter and Corbin. See Doc. 47-2 at 3. Riley,
the CEO, and James, the COO, decided to allow Carpenter to resign and to eliminate
Corbin’s position. See Doc. 47-19 at 3-4. According to sworn testimony from James, he
and Riley made this decision in response to JTT’s report and the fallout from the Microsoft
software audit. Id. Corbin’s position of infrastructure team leader was never again opened
or filled. Id. at 4.
The relevant question here is whether the plaintiff has adequately demonstrated that
the proffered reason for the termination is pretextual. See McShane v. U.S. Attorney Gen.,
144 F. App’x 779, 791 (11th Cir. 2005). The plaintiff must show that the termination
decision was motivated by discriminatory animus. Id. Corbin argues that Jackson’s alleged
reason for termination is pretextual given that the letter informing him of his termination
did not cite the JTT report or the Microsoft licensing issue. See Doc. 47 at 14. However,
plaintiff’s argument does not show that Jackson’s stated reason was pretext.
The record indicates that James had received a report from JTT detailing problems
within the IT department’s infrastructure team and its leadership. James and Riley were
also confronted with the issues surrounding the Microsoft licenses and the over
$300,000.00 penalty. James contends that his, and Riley’s, decision to eliminate Corbin’s
position was prompted by the JTT report and the Microsoft issue. Nothing before the court
suggests that the decision to terminate Corbin was anything but a business decision,
14

motivated by the defendant’s financial and operational interests. Corbin has presented no
evidence to establish that his termination was motivated by disability discrimination and
has not demonstrated that the defendant’s reason for the termination was pretext.
Accordingly, as to plaintiff’s wrongful termination claim, summary judgment will be
granted in favor of the defendant.
2. Reasonable Accommodation Claim10
Corbin maintains that Jackson violated the ADA and the RA by refusing his
requests for reasonable accommodation for his disability. In particular, plaintiff contends
that Jackson unlawfully rejected his request that he not be required to work at night. See
Doc. 1 at 9. Defendant argues that plaintiff’s reasonable accommodation claim should be
dismissed because plaintiff cannot establish a prima facie claim of disability discrimination
and because plaintiff never specifically requested an accommodation. As discussed in § 1
of this opinion, plaintiff is unable to establish a prima facie claim of disability
discrimination. Still, the court will examine his contentions under the relevant standards
for a reasonable accommodation claim.
As a threshold matter, the law is clear that “an employer’s failure to
reasonably accommodate a

disabled

individual itself constitutes discrimination under

10

The plaintiff has abandoned this claim by failing to brief the issue. See Doc. 47; see also Coal.
for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000)
(“[F]ailure to brief and argue this issue during the proceedings before the district court is grounds
for finding that the issue has been abandoned.”). Nevertheless, the court will consider the claim on
its merits.
15

the ADA, so long as that individual is ‘otherwise qualified,’ and unless the employer can
show undue hardship.” Holly, 492 F.3d at 1262 (emphasis in original).
In the reasonable accommodation context, the ADA “envisions an ‘interactive
process’ by which employers and employees work together to assess whether an
employee's disability can be reasonably accommodated.” Harris v. Mills, 572 F.3d 66, 75
(2nd Cir. 2009) (quoting Jackan v. New York State Dep’t of Labor, 205 F.3d 562, 566 (2d
Cir. 2000)). Because the interactive process imposes shared obligations on employers and
employees, an employer cannot be liable for failure to accommodate if a collapse in that
process is attributable to the employee. See E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d
789, 796 (7th Cir. 2005) (“If a disabled employee shows that her disability was not
reasonably accommodated, the employer will be liable only if it bears responsibility for the
breakdown of the interactive process.”); Toronka v. Continental Airlines, Inc., 411 F.
App’x 719, 725 (5th Cir. 2011) (“An employer is not, however, liable if the breakdown in
the interactive process is traceable to the employee.”).
The legal principle on which Corbin’s claim founders is that an employer’s “duty to
provide a reasonable accommodation is not triggered unless a specific demand for
an accommodation has been made.” Gaston v. Bellingrath Gardens & Home, Inc., 167
F.3d 1361, 1363 (11th Cir. 1999). Indeed, “before an employer’s duty to provide
reasonable accommodations—or even to participate in the ‘interactive process’—is
triggered under the ADA, the employee must make an adequate request, thereby putting
the employer on notice.” E.E.O.C. v. C.R. England, Inc., 644 F.3d 1028, 1048 (10th Cir.
2011). In order for a request to be sufficient to trigger an employer’s duty, the employee
16

must

connect

the

requested

accommodation

to

his

disability.

See

Williamson v. Clarke County Department of Human Resources, 834 F. Supp. 2d 1310, 13
20 (S.D. Ala. 2011) (“[A]t a minimum, the employee must request some change or
adjustment in the workplace and must link that request to his disability, rather than simply
presenting the request in a vacuum.”) (emphasis in original).
Viewing the evidence in the light most favorable to the plaintiff, Corbin informed
Carpenter that he had been diagnosed with narcolepsy with cataplexy. See Doc. 47-1 at 16.
However, Corbin admits that he does not believe that he “ever requested any type of
accommodation” for his narcolepsy. Doc. 27 at 15. Plaintiff claims that there was never
any reason to request an accommodation due to the nature of his work. Id. Plaintiff does
contend that he would “if it came up . . . perhaps remind [Carpenter] that it would be
difficult for [Corbin] to” work evenings. Id. at 18-19. Plaintiff also testified that Carpenter
did attempt to change his job description in order to force him to work in the evenings. See
Doc. 47-1 at 21. However, Carpenter was advised that she could not change Corbin’s job
description “after the fact.” Id.
Plaintiff’s insurmountable problem is that, by his own admission, he never actually
requested an accommodation from his supervisors, much less told them that such an
accommodation would be due to his disability. In his complaint, plaintiff makes the
unfounded claim that Jackson “fail[ed] or refus[ed] to transfer him to another position.”
Doc. 1 at 10. However, plaintiff presents no evidence that he ever even requested such a
transfer. Because plaintiff did not make a specific request for an accommodation, the
defendant was not required to speculate that plaintiff's reported narcolepsy required any
17

particular accommodation. The responsibility was Corbin’s to inform Carpenter that
because of his narcolepsy, he needed a particular accommodation; instead, he merely
informed Carpenter of his disability, see Doc. 47-1 at 16, and submitted his diagnosis, see
Doc. 47-6, to be included in his personnel file.
The court finds that plaintiff did not make an “adequate request” that was sufficient
to put his employer on notice. Given these facts, and in light of the above case authority,
Jackson cannot be liable for failure to provide a reasonable accommodation under
the ADA or the RA. The defendant is entitled to summary judgment on this claim.
3. Retaliatory Hostile Work Environment Claim11
The Eleventh Circuit has not yet recognized a cause of action for a retaliatory hostile
work environment under the ADA. See Menzie v. Ann Taylor Retail, Inc., 549 F. App’x
891, 896 n.9 (11th Cir. 2013) (“We have never held in a published opinion that a hostile
work environment claim is available under the ADA.”). The Court, though, has recognized
a cause of action for a retaliatory hostile work environment under Title VII. See Gowski v.
Peake, 682 F.3d 1299, 1311-12 (11th Cir. 2012).
Both the ADA and Title VII share comparable frameworks, and the key language
in the two statutes is virtually indistinguishable. Haysman v. Food Lion, Inc., 893 F. Supp.
1092, 1106 (S.D. Ga. 1995) (“It would seem illogical to hold that ADA language identical
to that of Title VII was intended to afford disabled individuals less protection than those
groups covered by Title VII.”). Assuming, without deciding, that plaintiff is entitled to

11

The plaintiff has abandoned this claim as well. See supra note 10. However, the court will
address it briefly.
18

bring a cause of action for a retaliatory hostile work environment under the ADA, the court
will examine the plaintiff's claim under Gowski, the governing Title VII case on this issue.
To prevail on a retaliatory hostile work environment claim, Corbin must show (1)
that he engaged in protected activity; (2) that, after doing so, he was subjected to
unwelcome harassment; (3) that the protected activity was a “but for” cause of the
harassment; (4) that the harassment was sufficiently severe or pervasive to alter the terms
of his employment; and (5) that the employer is responsible for the environment under
either vicarious or direct liability. See Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240,
1248-49 (11th Cir. 2014).
Here, the plaintiff cannot show that his protected activity was a “but for” cause of
any harassment, or that such harassment was sufficiently pervasive or severe to alter the
terms of his employment. See Shaling v. UPS Ground Freight, 202 F. Supp. 3d 1283, 128995 (N.D. Ala. 2016) (where the plaintiff filed over twenty grievances, and each grievance
was in response to a specific event, the court determined that the alleged conduct was
sufficiently pervasive and that the claims should be decided by a jury).
Whether harassment is “severe or pervasive” is determined by applying both
objective and subjective components of the test. Gowski, 682 F.3d at 1312. A plaintiff can
satisfy the subjective component by showing that he “subjectively perceiv[ed]” the alleged
harassment as severe or pervasive enough to change the terms of his employment. Id. The
objective component requires a showing that the alleged harassment created an
environment that a reasonable person would find hostile or abusive. Id. In the instant case,
the court concludes that even if the plaintiff subjectively perceived the alleged harassment
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as severe or pervasive enough to change the terms of his employment, a reasonable person
would not have done so.
In applying the objective component, courts consider “(1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening
or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably
interferes with the employee's job performance.” Gowski, 682 F.3d at 1312 (quoting Miller
v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th Cir. 2002)). “One isolated incident
of sexually inappropriate behavior will not amount to actionable sexual harassment unless
the incident is ‘extremely serious[,]’” and a “one-time, ambiguous comment” is
“insufficiently severe to amount to actionable sexual harassment.” McMillian v.
Postmaster Gen., United States Postal Serv., 634 F. App’x 274, 277 (11th Cir. 2015).
As evidence of a hostile work environment, Corbin says that he felt pressured by
Carpenter to explain his condition publicly at a department meeting following his
diagnosis. See Doc. 47-1 at 22. Additionally, Carpenter notified a vendor that Corbin would
not be available in the early morning or late at night due to his narcolepsy. Id. at 23. Finally,
Samantha Ivery claims to have once heard someone at work make a joke about narcolepsy
during her time as a member of Jackson’s IT department; Ivery, however, could not recall
any specifics regarding the joke, including the employees who may have been involved or
the subject of the joke. See Doc. 47-4 at 19. Similarly, Andy Johnson, a former member of
Jackson’s IT department, claimed that Corbin’s “narcolepsy was a joke in the IT
department,” but he failed to elaborate on this conclusory assertion with any specific
details. See Doc. 47-17 at 3. Although it is possible that Corbin felt uncomfortable at work
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due to the actions of Carpenter or other employees, Corbin has not shown that those actions
rise to the level of a hostile work environment. Consequently, the defendant is entitled to
summary judgment on this claim.
4. ADA Retaliation Claim
Corbin’s ADA retaliation claim

is

based

on

the

allegation

that

Jackson retaliated against him for engaging in the “protected activity” of filing complaints
against

Carpenter

for

disability

discrimination.

The

Eleventh

Circuit

“assess[es] ADA retaliation claims under the same framework used in Title VII.” Palmer
v. McDonald, 624 F. App’x 699, 702 (11th Cir. 2015) (citing Stewart v. Happy Herman's
Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997)).
To establish a prima facie case of ADA retaliation, a plaintiff must demonstrate (1)
that he engaged in a statutorily protected expression, (2) that he experienced an adverse
employment action, and (3) that there was a causal link between the two. Frazier-White v.
Gee, 818 F.3d 1249, 1258 (11th Cir. 2016). If a plaintiff establishes a prima facie case, the
defendant must present a legitimate, non-discriminatory reason for the adverse
employment action. Davis v. Postmaster General, 550 F. App’x 777, 779 (11th Cir. 2013).
If the defendant meets this burden, “the burden shifts back to the plaintiff to show that the
proffered explanation is a pretext for retaliation.” Id.
Here, Jackson argues that Corbin’s ADA retaliation claim fails because he cannot
establish a causal link between the protected activity and his termination. See Doc. 48 at 79. Jackson further contends that it had legitimate, non-discriminatory reasons for
terminating Corbin and that those reasons are not pretextual. Id. at 10. Corbin maintains
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that his complaints were the reason for his termination, and that Jackson’s supposed
reasons for terminating him are nothing more than pretext. See Doc. 47 at 15-23. The
parties do not dispute that Corbin engaged in a protected activity and that he suffered an
adverse employment action. The court will thus examine whether there is a causal
connection between the two in order to determine whether the plaintiff has established a
prima facie ADA retaliation claim.
To prevail on his ADA retaliation claim, Corbin must show that his protected
activity was a “but for” cause of his termination. Frazier-White, 818 F.3d at 1258. In order
to establish “a causal connection, the plaintiff must show that the decisionmaker was aware
of his protected conduct, and that the protected activity and adverse action were not wholly
unrelated.” Clemons v. Delta Air Lines Inc., 625 F. App’x 941, 945 (11th Cir. 2015); see
also Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (“The burden
of causation can be met by showing close temporal proximity between the statutorily
protected activity and the adverse employment action.”).
On February 11, 2013, Corbin filed his first complaint alleging that Carpenter was
discriminating against him based on a disability. See Doc. 47-20. On September 19, 2013,
Corbin presented a lengthy second complaint detailing his interactions with Carpenter,
among others, and the discrimination that he allegedly suffered due to his disability. See
Doc. 47-8. Less than two months after this latest complaint, Corbin was fired. See Doc. 4712; see also Doc. 47-13. This “close temporal proximity” is enough to establish a causal
connection between the protected activity—Corbin’s complaints based disability

22

discrimination—and his termination. Consequently, Corbin has established a prima facie
case of ADA retaliation.
A. Defendant’s Stated Reasons for the Termination
Upon the determination that Corbin has established a prima facie claim of ADA
retaliation, the burden shifts to Jackson to articulate legitimate, non-discriminatory reasons
for Corbin’s termination. As detailed in § 1(A) of this opinion, Jackson has done so.
Because Jackson has articulated legitimate, non-discriminatory reasons for
terminating Corbin, “the presumption of discrimination is rebutted, and the burden of
production shifts to the plaintiff to offer evidence that the alleged reason of the employer
is a pretext for illegal discrimination.” Wilson v. B/E Aerospace, 376 F.3d 1079, 1087 (11th
Cir. 2004). To meet his burden, Corbin must show both (1) that the reasons articulated by
Jackson for his termination are not true, and (2) that the real reason for his termination was
discrimination. See Cleveland, 369 F.3d at 1193-94; see also Wascura, 257 F.3d at 1243
(“If the plaintiff fails to proffer sufficient evidence to create a genuine issue of material
fact as to whether each of the defendant’s proffered reasons is pretextual, the defendant is
entitled to summary judgment.”).
Here, Corbin argues that the decision to terminate his employment was actually
made in October of 2013, and that Jackson only delayed implementing that decision in case
Corbin’s IT expertise was needed. See Doc. 47 at 21. However, even if the decision were
made in October, Jackson’s reasons are still applicable given that James received the JTT
report and its recommendations as soon as he started at Jackson in early September of 2013.

23

See Doc. 47-19 at 1-3. Also, it was in October of 2013 that Microsoft determined that
Jackson’s software licenses were out of compliance. Id. at 3.
Corbin also contends that the Microsoft licensing issue was a pretextual reason for
his termination given that the licenses were neither his nor Carpenter’s responsibility. See
Doc. 47 at 22. In support of this contention, Corbin cites only to Carpenter’s testimony that
Peter Vandervoort was possibly responsible for organizing the payment of the Microsoft
licenses. See Doc. 47-3 at 6. But Carpenter also testified that she and Corbin were both at
fault for the Microsoft licensing issue. See Doc. 48 at 15-16. Thus, Carpenter’s testimony
actually supports the contention that Corbin and Carpenter were fired, at least in part, due
to the licensing issue.
Even construed in a light most favorable to Corbin, the facts do not point to pretext.
Instead, Jackson has articulated legitimate, non-discriminatory reasons for terminating
Corbin stemming from the JTT report, which cited Corbin’s poor management, and the
Microsoft licensing issue. Jackson’s stated reasons are supported by sworn testimony;
Corbin’s are merely conclusory. Corbin has failed to make a showing sufficient for a jury
to find that the reasons cited by Jackson are not true, much less that the true reason for his
discharge was retaliatory discrimination. Thus, the court concludes that Jackson is entitled
to summary judgment as to Corbin’s ADA retaliation claim and the claim is due to be
dismissed.
CONCLUSION AND ORDER
For the foregoing reasons, it is ORDERED as follows:

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(1) Defendant’s motion for summary judgment, see Doc. 27, is GRANTED, and
summary judgment is hereby entered in defendant’s favor on all claims.
(2) The Clerk of Court is DIRECTED to close this file.
A separate final judgment will be entered.
Done, on this the 3rd day of December, 2018.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge

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