Chancey v. Fairfield Southern Company, Inc. et al

Filing 54

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 6/12/2013. (JLC)

FILED
2013 Jun-12 PM 04:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ROBERT A. CHANCEY,

)
)
Plaintiff,
)
)
v.
) Case No.: 2:11-CV-3609-VEH
)
FAIRFIELD SOUTHERN CO., INC. )
and UNITED STATES STEEL
)
CORPORATION,
)
)
Defendants.
)

MEMORANDUM OPINION
I.

INTRODUCTION
A.

Summary of Mr. Chancey’s Claims

Plaintiff Robert A. Chancey (“Mr. Chancey”) initiated this job discrimination
lawsuit against Defendants Fairfield Southern Co., Inc. (“Fairfield”) and United
States Steel Corporation (“USS”) arising under the Americans with Disabilities Act
(the “ADA”), as amended in 2008 (the “ADAA”),1 on October 11, 2011. (Doc. 1).

Based upon the absence of any briefing on the issue, evidently there is no
disagreement that the ADAA applies to this lawsuit. The parties’ apparent stipulation
over which law to apply is also consistent with the court’s prior ADAA retroactivity
analysis as the alleged discriminatory conduct that Mr. Chancey complains about took
place after January 1, 2009. This court has previously concluded that in the context
of a plaintiff, such as Mr. Chancy, who seeks monetary damages for disability
1

While Mr. Chancey’s complaint lists four separate counts (Doc. 1 at 5-8 ¶¶ 28-38),2
many of the allegations and claims contained in the pleading appear to the court to
overlap and, thus, are due to be consolidated in the manner further explained below.
Count one contends that Defendants violated the ADAA and discriminated against
Mr. Chancey “by subjecting him to unjustifiable medical evaluations and refusing to
allow him to return to his job before and after he was released to return to work ….”
(Doc. 1 at 5-6 ¶ 29).
Count two asserts that “Defendants violated the ADA[A] by utilizing standards,
criteria, or methods of discrimination that have the effect of discrimination on the
basis of disability.” (Id. at 7 ¶ 34). Count three maintains that “Defendants violated
the ADA[A] by utilizing qualification standards, employment tests or other selection
criteria that screen out or tend to screen out individuals with disabilities.” (Id. at 7
¶ 36). Finally, count four alleges that “Defendants violated the ADA[A] by

discrimination premised upon an adverse employment action that occurred prior to
January 1, 2009, the [ADAA] should not be applied retroactively. See generally
Richardson v. Honda Mfg. of Ala., LLC, 635 F. Supp. 2d 1261, 1269-72 (N.D. Ala.
2009) (analyzing whether to apply ADAA retroactively to challenged conduct predating January 1, 2009). Relying upon Richardson as persuasive authority and
applying its retroactivity ruling conversely to the discriminatory time frame
implicated here, the court will analyze the Motion and Mr. Chancey’s disability
claims under the ADAA.
The page references to Doc. 1 correspond with the court’s CM/ECF
numbering system.
2

2

subjecting the Plaintiff to a medical examination which required the Plaintiff to
answer questions about his service-related disability, including the nature and severity
of his disability and the examination cannot be shown to be job-related and consistent
with business necessity.” (Doc. 1 at 7-8 ¶ 38).
In sum, having considered all of Mr. Chancey’s allegations, the court concludes
that a reasonable reading of his complaint clarifies that he is really only asserting two
separate claims against Defendants under the ADAA – one for disability
discrimination and the other for a violation of the medical evaluation provisions.
Further, the court’s summary of the claims contained in Mr. Chancey’s complaint is
consistent with the parties’ briefing on summary judgment.
B.

Summary of Pending Motions

Pending before the court are Fairfield’s Motion for Summary Judgment (Doc.
26) (“Fairfield’s Motion”) and USS’s Motion for Summary Judgment (Doc. 24)
(“USS’s Motion”), both of which were filed on November 30, 2012. Fairfield and
USS filed all their supporting materials on this same date. (Docs. 25, 27, 30).
Fairfield and USS also jointly filed two motions in limine on November 30,
2012: Defendants’ Motion in Limine To Exclude any Opinion or Testimony by
Amanda Hood (“Ms. Hood”) that Plaintiff Could Return to Work (Doc. 28) (the
“Hood Strike Motion”) and Defendants’ Motion in Limine To Exclude any Opinion
3

or Testimony by Dr. Andrea Thomas (“Dr. Thomas”) that Plaintiff Could Return to
Work (Doc. 29) (the “Thomas Strike Motion”).
Mr. Chancey filed his opposing materials on December 21, 2012. (Docs. 3540, 42). Fairfield and USS followed with their reply briefs on January 4, 2013.
(Docs. 46-49). Finally, on April 18, 2013, the court granted Mr. Chancey’s request
(Doc. 52) to file a notice of supplemental case authority consisting of one published
decision issued by the Eleventh Circuit.
Accordingly, Fairfield’s Motion, USS’s Motion, the Hood Strike Motion, and
the Thomas Strike Motion are now all under submission. For the reasons explained
below, Fairfield’s Motion is due to be granted in part and denied in part, USS’s
Motion is due to be granted in part and denied in part, the Hood Strike Motion is due
to be termed as moot, and the Thomas Strike Motion is due to be termed as moot.
II.

FACTUAL BACKGROUND
Mr. Chancey was hired on or about December 2, 2009, as a train operator

helper for Fairfield.3 The job description for train operators and helpers provides for
Keeping in mind that when deciding a motion for summary judgment the
court must view the evidence and all factual inferences in the light most favorable to
the party opposing the motion, the court provides the following statement of facts.
See Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241
(11th Cir. 2007) (observing that, in connection with summary judgment, a court must
review all facts and inferences in a light most favorable to the non-moving party).
This statement does not represent actual findings of fact. See In re Celotex Corp.,
3

4

the following mental requisites:
Alert[.]
Able to work with other men as unit.
Sense of safety and responsibility for himself and others.
Able to plan work and act independent of supervisor.
Able to give and relay signals from ground, on ladder and from side of
cars.
Write legibly and read.
High degree of responsibility for the safety of the public and other
employees as well as property.
(Doc. 30-9 at 14).4
The description also lists fifteen physical requirements:
Good distant and near vision.
Good color vision.
Good hearing.
Agility.
Capable of boarding and alighting from moving cars and engines.
Ascend and descend vertical ladders on cars and engines in motion.
Able to do lifting.
Able to throw switches (about 60 lbs.).
Able to pull pins and disconnect air hoses.
Able to operate hand brakes on top of cars.
Able to be on feet most of time of duty.
Able to walk briskly on railroad roadbed for a distance of one to two
miles regardless of weather conditions.

487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement
simply to place the court’s legal analysis in the context of this particular case or
controversy. Finally, due to the nature of this court’s decision on summary judgment,
the foregoing statement of facts is significantly limited in scope.
The page references to Doc. 30-9 correspond with the court’s CM/ECF
numbering system.
4

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Able to work irregular hours.
Able to work at night with no more than a hand lantern.
Able to open and close doors on rail cars with and without hand tools.
(Doc. 30-9 at 14).
In this suit, Mr. Chancey claims that Fairfield and USS discriminated against
him in violation of the ADAA when, on July 8, 2010, he was instructed to contact
Employee Assistance Services (“EAS”) to arrange for a psychological evaluation and
to refrain from reporting to work. Mr. Chancey further complains that, after being
referred to Grayson & Associates and treated for Post Traumatic Stress Disorder
(“PTSD”) at that facility, based upon the opinion of Dr. Cheryl Szabo (“Dr. Szabo”),
the Medical Director at USS, he has never been permitted to return to his previously
held position of train operator helper, despite being released by Grayson & Associates
to return to work.
More specifically, as Dr. Szabo testified regarding her return to work
examination of Mr. Chancey conducted on November 1, 2010:
Q.

Okay. So was it your suggestion that he be restricted from
working around trains?

A.

Working around moving trains and mobile equipment.

Q.

What kind of trains are there? Have the got trains out there that
don’t move?

A.

Yes.
6

Q.

How is that?

A.

If they’re in maintenance or something like that.

Q.

So he could work around the train so long as it wasn’t moving,
but if it was moving, you had safety concerns?

A.

I do. . . .

Q.

So was your concern the medications he was taking?

A.

In part.

Q.

Well, tell me.

A.

He wasn’t clinically ready to go back to work without restrictions.

Q.

What about that?

A.

He was shaking, tremulous, stuttering. He had no eye contact. He
looked depressed. I did some coordination tests on him, and he
could not do or follow instructions on coordination tests. He
couldn’t do a finger-to-nose test. . . .

Q.

I’m talking about -- I should say, what did you associate those
symptoms to?

A.

His disease.

Q.

What disease?

A.

Posttraumatic stress disorder.

Q.

Was one of your concerns also the medication he was taking?

A.

That’s an additional concern.

7

(Doc. 31-11 at 40 at 154-56).5
On July 23, 2010, Mr. Chancey applied for disability compensation from the
Department of Veterans Affairs (the “VA”). (Doc. 31-1 at 51-57).6 Mr. Chancey’s
listed tremors (occurring in his upper extremities) and PTSD as his service-connected
disabling conditions in support of his VA disability application. (Id. at 51, 57).
On March 14, 2011, the VA rendered a “Rating Decision” finding Mr. Chancey
to be entitled to 50% in VA compensation benefits effective July 26, 2010, due to
PTSD. (Doc. 31 at 2, 6).7 As explained in the VA’s Rating Decision:
An evaluation of 50 percent is assigned from July 26, 2010, the date of
claim. An evaluation of 50 percent is assigned for occupational and
social impairment with reduced reliability and productivity due to such
symptoms as: flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week; difficulty in
understanding complex commands; impairment of short- and long-term
memory (e.g., retention of only highly learned material; forgetting to
complete tasks); impaired judgment; impaired abstract thinking;
disturbances of motivation and mood; difficulty in establishing and
maintain effective work and social relationships.
(Doc. 31-1 at 15).

The initial page reference to Doc. 30-11 corresponds with the court’s
CM/ECF numbering system.
5

The page references to Doc. 31-1 correspond with the court’s CM/ECF
numbering system.
6

The page references to Doc. 31 correspond with the court’s CM/ECF
numbering system.
7

8

Mr. Chancey filed his initial EEOC charge asserting disability discrimination
under the ADAA against USS on November 11, 2010. (Doc. 1 at 10-11). During the
pendency of the EEOC’s investigation, Mr. Chancey filed an amended charge on June
28, 2011, expressly naming both USS and Fairfield as respondents. (Id. at 12-13).
III.

STANDARDS
A.

Summary Judgment Generally

Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
Finally “[i]f the movant bears the burden of proof on an issue, because, as a
defendant, it is asserting an affirmative defense, it must establish that there is no
9

genuine issue of material fact as to any element of that defense.”

International

Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003)).
B.

Disability Discrimination

Regarding establishment of a prima facie case of disability discrimination
under the ADA, the Eleventh Circuit has explained:
The ADA mandates that employers shall not discriminate 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). The familiar burden-shifting analysis of Title VII
employment discrimination actions is equally applicable to ADA claims.
See Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir.
1996). Thus, Hilburn has the burden of proving a prima facie case of
disability discrimination by a preponderance of the evidence, which
requires a demonstration that she (1) is disabled, (2) is a qualified
individual, and (3) was subjected to unlawful discrimination because of
her disability. 42 U.S.C. §§ 12112(a); see Morisky v. Broward County,
80 F.3d 445, 447-49 (11th Cir.1996). Having concluded that Hilburn
had not established any genuine issue of a material fact relating to the
first prima facie factor of disability, the trial court did not address the
last two factors. See Hilburn, 17 F. Supp. 2d at 1383. Therefore, we will
limit our discussion to whether Hilburn can be considered disabled
within the meaning of the ADA.
The ADA defines a “qualified individual with a disability” as 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).
Additionally, Hilburn must establish that Murata had actual or
10

constructive knowledge of the disability or considered her to be
disabled. Morisky, 80 F.3d at 448.
The ADA defines a “disability” as:
(A) a physical or mental impairment that substantially limits one or more
of the major life activities of an individual;
(B) a record of such impairment; or
(C) being regarded as having such impairment. 42 U.S.C. § 12102(2).
Hilburn must be deemed to be “disabled” for purposes of the ADA if she
satisfies any one of these three definitions. However, a physical
impairment alone is not necessarily a disability under the ADA.
Pritchard, 92 F.3d at 1132. Commentary to the federal regulations
contains a non-exclusive list of conditions that constitute a physical
impairment. For the purposes of Hilburn’s personal disability claim, it
is significant that heart disease is included in this listing. 45 C.F.R. pt.
84, App. A., subpart (A)(3) (1997). Courts, including the Eleventh
Circuit Court of Appeals (Eleventh Circuit), frequently look to EEOC
regulations to assess the next analytical step of determining whether a
physical impairment substantially limits a major life activity. See, e.g.,
Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 911 (11th Cir.
1996).
These regulations explain that the term “substantially limits”
means “[u]nable to perform a major life activity that the average person
in the general population can perform” or “[s]ignificantly restricted as
to the condition, manner or duration under which an individual can
perform a particular major life activity as compared to the condition,
manner, or duration under which the average person in the general
population can perform that same major life activity.” 29 C.F.R. §§
1630.2(j)(1)(I), (ii) (1997). Major life activities are defined in the
regulations as “functions such as caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(I) (1997). With respect to the major life
11

activity of working, the regulations explain that the term “substantially
limits” means “significantly restricted in the ability to perform either a
class of jobs or a broad range of jobs in various classes as compared to
the average person having comparable training, skills and abilities. The
inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working.” 29 C.F.R. §
1630.2(j)(3)(I) (1997).
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226-27 (11th Cir. 1999)
(footnote omitted) (emphasis added).
The ADAA broadens coverage under the ADA and provides in part that:
(A) The definition of disability in this chapter shall be construed in favor
of broad coverage of individuals under this chapter, to the maximum
extent permitted by the terms of this chapter.
(B) The term “substantially limits” shall be interpreted consistently with
the findings and purposes of the ADA Amendments Act of 2008.
(C) An impairment that substantially limits one major life activity need
not limit other major life activities in order to be considered a disability.
(D) An impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.
(E)(I) The determination of whether an impairment substantially limits
a major life activity shall be made without regard to the ameliorative
effects of mitigating measures such as–
(I) medication, medical supplies, equipment, or appliances,
low-vision devices (which do not include ordinary
eyeglasses or contact lenses), prosthetics including limbs
and devices, hearing aids and cochlear implants or other
implantable hearing devices, mobility devices, or oxygen
therapy equipment and supplies;
12

(II) use of assistive technology;
(III) reasonable accommodations or auxiliary aids or
services; or
(IV) learned behavioral or adaptive neurological
modifications.
42 U.S.C. § 12102(4)(A)-(E)(I).
The last stated purpose of the ADAA calls for a broadening of the term
“substantially limits”:
(6) to express Congress’ expectation that the Equal Employment
Opportunity Commission will revise that portion of its current
regulations that defines the term ‘substantially limits’ as ‘significantly
restricted’ to be consistent with this Act, including the amendments
made by this Act.
Pub. L. No. 110-325, 122 Stat. 3553, 3554 § 2(b)(6) (2008).
C.

Evidentiary Rulings

“All evidentiary decisions are reviewed under an abuse-of-discretion standard.”
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997). “An abuse of
discretion can occur where the district court applies the wrong law, follows the wrong
procedure, bases its decision on clearly erroneous facts, or commits a clear error in
judgment.” United States v. Estelan, 156 Fed. App’x 185, 196 (11th Cir. 2005)
(citing United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005)).
Moreover, as the Eleventh Circuit has made clear, not every incorrect
13

evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See Fed. R. Evid.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee an appealing party
relief from an adverse final judgment. Instead, such erroneous rulings by a district
court must “affect the substantial rights of the parties” in order for reversible error to
occur.
IV.

ANALYSIS
A.

Fairfield’s Motion

Fairfield’s Motion has two parts. Fairfield initially argues that Mr. Chancey’s
ADAA claims are barred by the affirmative defense of administrative exhaustion.
Alternatively, Fairfield maintains that Mr. Chancey’s ADAA claims are flawed for
additional reasons.

14

1.

Fairfield’s Administrative Exhaustion Argument

Fairfield asserts that Mr. Chancey is administratively barred from pursuing his
ADAA claims against it because the only timely filed charge of discrimination names
USS as the sole respondent. (Doc. 1 at 10). “This filing requirement provides notice
to the party charged with a violation and gives that party an opportunity to comply
with Title VII before the institution of an action in federal court.” Davis v. Weidner,
596 F.2d 726, 729 (7th Cir. 1979).
As the Eleventh Circuit has explained the EEOC timely charge requirement:
Timely filing a charge of discrimination is a prerequisite to bringing suit
under both Title VII and the ADA. See Section 706(e) of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(e) (1994); 42 U.S.C.
§ 12117(a); Love v. Pullman Co., 404 U.S. 522, 523, 92 S. Ct. 616, 30
L. Ed. 2d 679 (1972) (“A person claiming to be aggrieved by a violation
of Title VII of the Civil Rights Act of 1964 ... may not maintain a suit
for redress in federal district court until he has first unsuccessfully
pursued certain avenues of potential administrative relief.”); Zillyette v.
Capital One Fin. Corp., 179 F.3d 1337, 1339 (11th Cir.1999) (“It is
settled law that, under the ADA, plaintiffs must comply with the same
procedural requirements to sue as exist under Title VII of the Civil
Rights Act of 1964.”). An ADA plaintiff has the burden of proving all
conditions precedent to filing suit, including the condition that he timely
filed with the EEOC. See Jackson v. Seaboard Coast Line R.R. Co., 678
F.2d 992, 1011 (11th Cir. 1982) (“[T]he timely filing of an EEOC
complaint is a condition precedent to a Title VII action”).
Ordinarily, an ADA plaintiff must file a charge complaining about
an allegedly unlawful employment practice (the “charge”) with the
EEOC within 180 days of the employment practice, see 42 U.S.C. §
2000e-5(e)(1) (1994), . . . .
15

Maynard v. Pneumatic Products Corp., 256 F.3d 1259, 1262 (11th Cir. 2001)
(emphasis added).
In opposing summary judgment, Mr. Chancey does not dispute that he formally
named Fairfield as a separate respondent by way of an amended charge outside of the
180-day period. (Doc. 42 at 48 (“Although Fairfield Southern’s name was not added
to Plaintiff’s EEOC Charge until June 28, 2011 . . . .”)).8 Instead, he essentially
maintains that the court should equitably excuse this omission because Fairfield,
through its senior HR manager, Tom Weideman (“Mr. Weideman”), was “provided
with adequate notice of the charge” and “the opportunity to participate in conciliation
proceedings” at the administrative level. (Doc. 42 at 46); (see also Doc. 37-11 (letter
dated November 23, 2010, from Mr. Chancey’s counsel to Mr. Wiedeman, seeking
to return Mr. Chancey to work)).
Mr. Chancey further asserts that his amended charge made on June 28, 2011,
should relate back to his timely December 2010 charge because the nature of his
disability discrimination allegations were unaltered and the addition of Fairfield was
merely a technical cure under 29 C.F.R. § 1601.12. (Doc. 42 at 48-49). Section
1601.12(b) states:

The page references to Doc. 42 correspond with the court’s CM/ECF
numbering system.
8

16

(b) Notwithstanding the provisions of paragraph (a) of this section, a
charge is sufficient when the Commission receives from the person
making the charge a written statement sufficiently precise to identify the
parties, and to describe generally the action or practices complained of.
A charge may be amended to cure technical defects or omissions,
including failure to verify the charge, or to clarify and amplify
allegations made therein. Such amendments and amendments alleging
additional acts which constitute unlawful employment practices related
to or growing out of the subject matter of the original charge will relate
back to the date the charge was first received. A charge that has been so
amended shall not be required to be redeferred.
29 C.F.R. § 1601.12 (emphasis added).
Fairfield replies that neither equitable principles nor the relation back doctrine
should apply as the correspondence from Mr. Chancey’s counsel to Mr. Weidman
“does not mention [Fairfield] and expressly states that the charge attached [to the
correspondence] was ‘unfiled.’” (Doc. 49 at 19). Fairfield further counters that it
“had no opportunity to respond, much less conciliate” with respect to the June 28,
2011, amended charge (id.), as the EEOC dismissed all administrative proceedings
on July 29, 2011. (Doc. 1 at 14).
Fairfield does not refute that Mr. Weideman is one of its employees. Fairfield
also overlooks the fact that Mr. Chancey references “Fairfield” in the “NAME”
section of his initial charge: “U.S. Steel Corporation - Fairfield Works”. (Doc. 1 at
10). This same “Fairfield Works” designation appears in the first “NAME” section
of his amended charge. (Id. at 12). Mr. Chancey also identifies “Fairfield Works”
17

a second time within the body of his initial and amended charge. (Doc. 1 at 10 (“I
was hired December 2, 2009, as a train operator helper at U.S. Steel - Fairfield Works
in Birmingham.”); id. at 12 (same)).
Neither side has directed this court to on-point controlling authority on the
issue of whether administrative exhaustion should apply to preclude Mr. Chancey
from litigating his ADAA claims against Fairfield. However, this court has found a
pre-Bonner decision which it finds to be helpful to the analysis.9
In Tillman v. City of Boaz, 548 F.2d 592, 593 (5th Cir. 1977), “[t]he issue [wa]s
whether Plaintiff complied with the administrative remedy provisions of 42 U.S.C.
§ 2000e-5 which require a charge to be filed initially with the Equal Employment
Opportunity Commission (hereafter the EEOC) against each defendant before
proceeding against them in the district court.” “The charge form, when completed
and filed, listed ‘Mayor Billy B. Dyer (sic) City of Boaz’ as the employer(s) who
discriminated against [the plaintiff].” Tillman, 548 F.2d at 593.
The Tillman court reversed the administrative exhaustion dismissal of the
plaintiff’s claim against the City explaining that:
Charges filed with the EEOC must be liberally construed because
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth
Circuit handed down prior to October 1, 1981.
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18

they are made by persons who are unfamiliar with the technicalities of
formal pleadings and who usually do not have the assistance of an
attorney. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir.
1970); Kaplan v. International Alliance of Theatrical and Stage
Employees and Motion Picture Machine Operators of the United States
and Canada, 525 F.2d 1354 (9th Cir. 1975); Equal Employment
Opportunity Commission v. Western Publishing Co., Inc., 502 F.2d 599
(8th Cir. 1974). Weight and credibility should be given to the
construction or meaning the EEOC gives to charges filed with them.
Macklin v. Spector Freight Systems, Inc., 156 U.S. App. D.C. 69, 478
F.2d 979 (1973).
Tillman’s letter of March 13, 1975 specifically charges the City
with an unlawful employment practice and is incorporated by reference
into the charge form. The EEOC investigated the City and the Mayor.
Thus, it is sufficiently clear from these documents that the charge was
made against both the Mayor, acting as a city official, and the City.
Further, the reinstatement requested by Tillman could only be granted
by the City as her employer.
Tillman, 548 F.2d at 594 (footnote omitted) (emphasis added).
While Tillman admittedly is not squarely applicable here, the court finds it to
be sufficiently similar such that the opinion provides persuasive support for
permitting Mr. Chancey to proceed against Fairfield under a liberal construction of
his initial charge which referred multiple times to “Fairfield Works” and the EEOC’s
subsequent investigation into the merits of those claims, which caused Mr. Chancey
to file his amended charge. (See Doc. 42 at 4 (“In June 2011, when the EEOC
determined that [Fairfield] was actually Plaintiff’s employer, the original charge was
amended to name [Fairfield] in addition to USS.”)).
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The court’s conclusion is further bolstered by the undisputed fact that Mr.
Weideman, who received the written correspondence from Mr. Chancey’s lawyer, is
an employee of Fairfield and, thus, Fairfield had informal notice of Mr. Chancey’s
intent to challenge as discriminatory the refusal to return him to employment. Cf.
Terrell v. U. S. Pipe & Foundry Co., 644 F.2d 1112, 1124 (5th Cir. 1981) (“Applying
these precedents and principles favoring liberality to the facts now before us, we must
nevertheless conclude that the Internationals were insufficiently implicated in the
discrimination alleged in appellants’ original charges to have reasonably triggered
EEOC investigation of the Internationals.”), cert. granted on other grounds and
judgment vacated by International Molders and Allied Workers Union AFL-CIO
Local 342 v. Terrell, 456 U.S. 968, 102 S. Ct. 2229, 72 L. Ed. 2d 841 (1982).
The court alternatively and additionally holds that the amended charge which
separately names Fairfield (in addition to USS) constitutes a technical cure within the
meaning of 29 C.F.R. § 1601.12 and, thus, relates back to Mr. Chancey’s original
administrative filing which included several references to “Fairfield Works” as an
apparent division of USS. Accordingly, the administrative exhaustion section of
Fairfield’s Motion is due to be denied.

2.

Fairfield’s

Alternative
20

Challenges

of

Mr.

Chancey’s ADAA Claims
a.

ADAA Discrimination Claim

Fairfield challenges Mr. Chancey’s prima facie ADAA discrimination claim
only as to the qualified individual prong. (Doc. 27 at 23, 26).
Determining whether an individual is “qualified” for a job is a
two-step process. See 29 C.F.R. pt. 1630 app. at 352–53. First, does the
individual satisfy the prerequisites for the position; does the individual
have sufficient experience and skills, an adequate educational
background, or the appropriate licenses for the job? See id. Second, can
the individual perform the essential functions of the job, either with or
without reasonable accommodations? See id. The plaintiff has the
burden of proving that reasonable accommodations were available. See
Holbrook, 112 F.3d at 1526. Reassignment is only a reasonable
accommodation if a position for which the plaintiff is qualified is
available. See Willis v. Conopco, Inc., 108 F.3d 282, 284 (11th Cir.
1997).
Reed v. Heil Co., 206 F.3d 1055, 1062 (11th Cir. 2000). Regarding this two-step
inquiry, Fairfield’s focus is upon the second part–that Mr. Chancey has not adduced
sufficient evidence upon which a reasonable jury could conclude that he can perform
the essential functions of a train operator helper either with or without reasonable
accommodation.
“‘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)(2)(1)). Further,

21

“consideration shall be given to the employer’s judgment as to what functions of a job
are essential, and if an employer has prepared a written description before advertising
or interviewing applicants for the job, this description shall be considered evidence
of the essential functions of the job.” 42 U.S.C. § 12111(8).
As part of its position, Fairfield maintains that Mr. Chancey should be
equitably estopped from asserting that he is a qualified individual under the ADAA
due to his actions taken and sworn statements made in furtherance of his partially
successful VA disability application. As legal support, Fairfield relies centrally upon
Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S. Ct. 1597, 143
L. Ed. 2d 966 (1999).
In Cleveland, a plaintiff pursued a pre-amendment ADA action that arguably
conflicted with an earlier SSDI disability claim asserted by that plaintiff under the
Social Security Act. In announcing a suitable framework for evaluating the overlap
of such potentially competing statutory tracks to establishing cognizable legal
disability, the Supreme Court resisted adopting any “special legal presumption” and
instead explained:
In light of these examples, we would not apply a special legal
presumption permitting someone who has applied for, or received, SSDI
benefits to bring an ADA suit only in “some limited and highly unusual
set of circumstances.”

22

Nonetheless, in some cases an earlier SSDI claim may turn out
genuinely to conflict with an ADA claim. Summary judgment for a
defendant is appropriate when the plaintiff “fails to make a showing
sufficient to establish the existence of an element essential to [her] case,
and on which [she] will bear the burden of proof at trial.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
An ADA plaintiff bears the burden of proving that she is a “qualified
individual with a disability”—that is, a person “who, with or without
reasonable accommodation, can perform the essential functions” of her
job. 42 U.S.C. § 12111(8). And a plaintiff's sworn assertion in an
application for disability benefits that she is, for example, “unable to
work” will appear to negate an essential element of her ADA case—at
least if she does not offer a sufficient explanation. For that reason, we
hold that an ADA plaintiff cannot simply ignore the apparent
contradiction that arises out of the earlier SSDI total disability claim.
Rather, she must proffer a sufficient explanation.
The lower courts, in somewhat comparable circumstances, have
found a similar need for explanation. They have held with virtual
unanimity that a party cannot create a genuine issue of fact sufficient to
survive summary judgment simply by contradicting his or her own
previous sworn statement (by, say, filing a later affidavit that flatly
contradicts that party’s earlier sworn deposition) without explaining the
contradiction or attempting to resolve the disparity. Although these
cases for the most part involve purely factual contradictions (as to which
we do not necessarily endorse these cases, but leave the law as we found
it), we believe that a similar insistence upon explanation is warranted
here, where the conflict involves a legal conclusion. When faced with
a plaintiff’s previous sworn statement asserting “total disability” or the
like, the court should require an explanation of any apparent
inconsistency with the necessary elements of an ADA claim. To defeat
summary judgment, that explanation must be 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 her job, with or without
“reasonable accommodation.”

23

Cleveland, 526 U.S. at 805-07, 119 S. Ct. at 1603-04 (citations omitted) (emphasis
added).
In opposing summary judgment, Mr. Chancey implicitly accepts that the
Supreme Court’s qualified individual holding in Cleveland is not necessarily limited
to diverging Social Security Act claims, but instead maintains that “there is no
inconsistency” because “Defendant has not shown where Plaintiff represented to the
VA that he was permanently and totally disabled.” (Doc. 42 at 55). The court has
studied Mr. Chancey’s application and, while it may not expressly state that he is
completely unable to work, the obvious implication of its contents is that he is
seeking 100% in VA compensation benefits based upon his disabling conditions of
PTSD and tremors. (See Doc. 31-1 at 57 (“This is a request for consideration of the
service connected disabilities that I have listed on my application. (526).”)).
Certainly, Mr. Chancey has not offered any evidence to suggest, much less
explain, that his intent in filing his VA disability application was to secure only
minimal10 as opposed to full disability benefits.11 Mr. Chancey also signed his

See http://www.benefits.va.gov/compensation/ (“VA provides compensation
to Veterans who are at least 10% disabled because of injuries or diseases that
occurred or were aggravated during active military service.”) (last accessed on June
10, 2013).
10

See http://www.benefits.va.gov/COMPENSATION/types-disability.asp
(“The benefit amount is graduated according to the degree of the Veteran's disability
11

24

disability application with notice that “[t]he law provides severe penalties . . . for the
willful submission of any statement or evidence of a material fact, knowing it to be
false, or for the fraudulent acceptance of any payment to which you are not entitled.”
(Doc. 31-1 at 56).
Finally, the VA Rating Decision discusses how Mr. Chancey’s 50% disability
rating correlates with certain occupational deficiencies (Doc. 31-1 at 15), and Mr.
Chancey has made no effort to reasonably explain why this administrative finding
bears no relationship to his ability to perform the essential functions of the train
operator helper as delineated in the job description and as clarified by Dr. Szabo,
including the essential function of being able to safely work around moving trains in
light of his PTSD. (See Doc. 30-11 at 40 at 154-55 (“Q. So he could work around
the train so long as it wasn't moving, but if it was moving, you had safety concerns?
A.

I do. . . .)). Therefore, against this backdrop, the court concludes that Mr.

Chancey’s VA application appropriately falls into the “or the like” disability category
identified by the Cleveland Court. 526 U.S. at 807, 119 S. Ct. at 1604.
Further, in the absence of a sufficient explanation from Mr. Chancey about his
conflicting position taken under penalty of perjury in the VA disability application

on a scale from 10 percent to 100 percent (in increments of 10 percent).”) (last
accessed on June 10, 2013).
25

as well as the resulting 50% disability compensation that he continues to receive from
VA based upon his PTSD symptoms, the record lacks proof “to warrant a reasonable
juror’s concluding that, assuming the truth of, or the plaintiff’s good-faith belief in,
the earlier [disability] statement, the plaintiff could nonetheless ‘perform the essential
functions’ of h[is] job, with or without ‘reasonable accommodation.’” Cleveland,
526 U.S. at 807, 119 S. Ct. at 1604; cf. Kurzweg v. SCP Distributors, LLC, 424 Fed.
App’x 840, 844 (11th Cir. Apr. 21, 2011) (unpublished) (“Kurzweg’s explanation for
his inconsistent representations does not fall within any of the examples listed in
Cleveland.”); id. (“In fact, he claimed he was fully able to do his job on June 9, 2009,
stressing that his doctor had released him to return to work without restrictions.”)
(emphasis added); id. (“Kurzweg successfully maintained before the SSA that he was
unable to do his past relevant work (i.e., his work at SCP) as of June 9, 2008 due to
his disability.”).
Accordingly, Mr. Chancey’s ADAA discrimination claim fails due to his
inability to satisfy the qualified individual prong consistent with the Supreme Court’s
holding in Cleveland as persuasively applied to his application for and award of VA
disability benefits that have not been reasonably reconciled with his asserted ability
to perform the essential functions of his former job with or without reasonable
accommodation. Therefore, the merits portion of Fairfield’s Motion is due to be
26

granted on this particular ground.
b.

ADAA Medical Evaluation Claim

42 U.S.C. § 12112(d) covers medical examinations and inquires under the
ADAA and provides in pertinent part:
(4) Examinations and inquiry
(A) Prohibited examinations and inquiries
A covered entity shall not require a medical examination
and shall not make inquiries of an employee as to whether
such employee is an individual with a disability or as to the
nature or severity of the disability, unless such examination
or inquiry is shown to be job-related and consistent with
business necessity.
42 U.S.C. § 12112(d)(4)(A). To prevail on this claim, a plaintiff need not establish
his disabled status under the ADAA as the Eleventh Circuit recently joined other
circuits in concluding “that § 12112(d)(4)[(]A) protects employees who are not
disabled.” Owusu-Ansah v. The Coca-Cola Company, ___ F.3d ___, No. 11–13663,
2013 WL 1896978, at *4 (11th Cir. May 8, 2013).
In Owusu-Ansah, the Eleventh Circuit also clarified the meaning of the
exception to the general rule prohibiting disability-related medical examinations:
The phrase “job-related and consistent with business necessity”
appears not only in § 12112(d)(4)(A) of the ADA, but in §§
12112(b)(6), 12113(a), and 12113(c) as well. We have said that
“job-relatedness is used in analyzing the questions or subject matter
27

contained in a test or criteria used by an employer” as a basis for an
employment decision, while "[b]usiness necessity, in context, is larger
in scope and analyzes whether there is a business reason that makes
necessary the use by an employer of a test or criteria" for such a
decision. See Allmond v. Akal Sec., Inc., 558 F.3d 1312, 1317 (11th Cir.
2009) (interpreting language in § 12113(a)) (internal quotation marks
and alterations omitted). Because "[a] term appearing in several places
in a statutory text is generally read the same way each time it appears,"
Ratzlaf v. United States, 510 U.S. 135, 143 (1994), we use the Allmond
definitions here.
In Watson we held that in “any case where a police department
reasonably perceives an officer to be even mildly paranoid, hostile, or
oppositional, a fitness for duty examination is job related and consistent
with business necessity.” 177 F.3d at 935. We explained that “the ADA
does not, indeed cannot, require a police department to forgo a fitness
for duty examination to wait until a perceived threat becomes real or
questionable behavior results in injuries.” Id. Although Mr.
Owusu–Ansah was not employed as a police officer engaged in
dangerous work, Watson provides some guidance for us. See also
Williams, 303 F.3d at 1290–91 (noting in dicta that an employer could
have lawfully required medical examination for employee who was
hostile, made threats, and was insubordinate).
Owusu-Ansah, 2013 WL 1896978, at *5.
After setting forth this framework, the Eleventh Circuit affirmed the district
court’s acceptance of the magistrate judge’s recommendation to grant summary
judgment in favor of Coca–Cola, reasoning:
Given the information it had about Mr. Owusu–Ansah at the time,
Coca–Cola did not violate § 12112(d)(4)(A) by requiring him to
undergo a psychiatric/psychological fitness-for-duty evaluation. The
evaluation, in our view, was “job-related and consistent with business
necessity.”
28

The evaluation was “job-related” because an “employee’s ability
to handle reasonably necessary stress and work reasonably well with
others are essential functions of any position.” Williams, 303 F.3d at
1290. Ms. Cabral reported that Mr. Owusu–Ansah—in the course of
complaining about discrimination and harassment—banged his fist on
the table and said in a raised voice that someone was “going to pay for
this.” When he was deposed, Mr. Owusu–Ansah denied having behaved
that way during his meeting with Ms. Cabral, and he now points out that
there were no prior incidents showing that he had a propensity for
workplace violence. That, however, is not dispositive. Although
Coca–Cola apparently never asked Mr. Owusu–Ansah for his version of
what happened at the meeting, it did not rely solely on Ms. Cabral’s
account in ordering the evaluation. Coca–Cola knew that Mr.
Owusu–Ansah had refused to speak to Ms. Welsh and Dr. Riddell about
his workplace problems. In addition, Dr. McElhaney—the consulting
psychologist—expressed “significant concerns” to Coca–Cola about Mr.
Owusu–Ansah’s emotional and psychological stability, and
recommended a psychiatric/psychological fitness-for-duty evaluation.
On this record, we conclude that Coca–Cola had a reasonable,
objective concern about Mr. Owusu–Ansah’s mental state, which
affected job performance and potentially threatened the safety of its
other employees. Though Mr. Owusu–Ansah worked from home, he
had access to and was required to attend meetings at the Dunwoody call
center. See, e.g., Krocka v. City of Chicago, 203 F.3d 507, 515 (7th Cir.
2000) (“We have stated that where inquiries into the psychiatric health
of an employee are job related and reflect a concern with the safety of
employees, the employer may ... require that the employee undergo a
physical examination designed to determine his ability to work.”);
Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 812 (6th Cir.1999)
(“[W]e note that the district’s obtaining advice that further examination
was needed to determine Sullivan’s fitness to work buttresses the
district's claim that it had reason to believe Sullivan could not perform
some essential aspects of his job.”).
For basically the same reasons, the evaluation was also
“consistent with business necessity.” Though it may not be one of the
29

traditional canons of statutory construction, common sense is not
irrelevant in construing statutes, and in our view an employer can
lawfully require a psychiatric/psychological fitness-for-duty evaluation
under § 12112(d)(4)(A) if it has information suggesting that an
employee is unstable and may pose a danger to others. See Conroy, 333
F.3d at 97 (“[B]usiness necessities may include ensuring that the
workplace is safe and secure.”). See also E.E.O.C. v. AIC Sec.
Investigations, Ltd., 55 F.3d 1276, 1283 (7th Cir.1995) (“It would seem
that a requirement that employees not pose a significant safety threat in
the workplace would obviously be consistent with business necessity:
a safe workplace is a paradigmatic necessity of operating a business.”);
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1119 (11th Cir.1993)
(holding that protecting employees from workplace hazards is a
“business necessity” under Title VII).
Owusu-Ansah, 2013 WL 1896978, at *5-6 (footnotes omitted) (emphasis added).
Finally, the Eleventh Circuit rejected Mr. Owusu-Ansah’s contention12 “that
Premised upon EEOC, Notice No. 915.002, Enforcement Guidance:
Disability–Related Inquiries and Medical Examinations of Employees under the
Americans with Disabilities Act (ADA) ¶ 5, 2000 WL 33407181, at *6 (July 27,
2000). This particular guideline partially provides:
12

5. When may a disability-related inquiry or medical examination of an
employee be “job-related and consistent with business necessity”?
Generally, a disability-related inquiry or medical examination of an
employee may be “job-related and consistent with business necessity”
when an employer ““has a reasonable belief, based on objective
evidence, that: (1) an employee's ability to perform essential job
functions will be impaired by a medical condition; or (2) an employee
will pose a direct threat due to a medical condition.” Disability-related
inquiries and medical examinations that follow up on a request for
reasonable accommodation when the disability or need for
accommodation is not known or obvious also may be job-related and
consistent with business necessity. In addition, periodic medical
30

Coca–Cola also needed evidence that he was a ‘direct threat,’ a term defined by the
ADA as ‘a significant risk to the health or safety of others that cannot be eliminated
by reasonable accommodation,’” . . . . Owusu-Ansah, 2013 WL 1896978, at *7
(citation omitted). Instead, the Eleventh Circuit found that the direct threat element
only applies when “the employer does not have objective evidence that a medical
condition will impair an employee’s ability to perform an essential job function” and
that because “Coca–Cola had objective evidence[,]” the guideline’s alternative prong
did not come into play. Id.
In his complaint, Mr. Chancey has asserted a medical examination claim
comparable to that of the plaintiff in Owusu-Ansah. However in his opposition brief,
Mr. Chancey omits any discussion of this theory and, instead, maintains that Fairfield
examinations and other monitoring under specific circumstances may be
job-related and consistent with business necessity.
Sometimes this standard may be met when an employer knows about a
particular employee's medical condition, has observed performance
problems, and reasonably can attribute the problems to the medical
condition. An employer also may be given reliable information by a
credible third party that an employee has a medical condition, or the
employer may observe symptoms indicating that an employee may have
a medical condition that will impair his/her ability to perform essential
job functions or will pose a direct threat. In these situations, it may be
job-related and consistent with business necessity for an employer to
make disability-related inquiries or require a medical examination.
Id. (footnotes omitted) (emphasis in original).
31

breached the ADAA’s confidentiality provisions related to such personal medical
information.
Section 12112(d)(4)(C) mandates that “[i]nformation obtained under
subparagraph (B) regarding the medical condition or history of any employee are
subject to the requirements of subparagraphs (B) and (C) of paragraph (3).” Those
referenced privacy limitations expressly provide:
(B) information obtained regarding the medical condition or history of
the applicant is collected and maintained on separate forms and in
separate medical files and is treated as a confidential medical record,
except that-(I) supervisors and managers may be informed regarding
necessary restrictions on the work or duties of the
employee and necessary accommodations;
(ii) first aid and safety personnel may be informed, when
appropriate, if the disability might require emergency
treatment; and
(iii) government officials investigating compliance with
this chapter shall be provided relevant information on
request; and
(C) the results of such examination are used only in accordance with this
subchapter.
42 U.S.C. § 12112(d)(3)(B)-(C).
In reply, Fairfield points out that Mr. Chancey “attempts for the first time to
convert his claim that he was subjected to unlawful medical exams into a claim that
32

Dr. Szabo shared his medical information with Weideman.” (Doc. 49 at 27). As the
Eleventh Circuit has explained, Mr. Chancey is procedurally forbidden from doing
this:
The FMLA authorizes leave “[i]n order to care for the ... parent,
of the employee, if such ... parent has a serious health condition.” 29
U.S.C. § 2612(a)(1)(C). Hurlbert’s complaint, however, provided no
notice whatsoever that he believed he was entitled to leave on this basis.
Indeed, the only person in the complaint alleged to have a experienced
a serious health condition is Hurlbert. We have previously held that
Rule 8(a)’s liberal pleading standard is inapplicable once discovery has
commenced, and that “[a]t the summary judgment stage, the proper
procedure for plaintiffs to assert a new claim is to amend the complaint
in accordance with Fed. R. Civ. P. 15(a).” Gilmour v. Gates, McDonald
and Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam). Hurlbert
argues that this rule is inapplicable, because his allegations about his
mother do not raise a new “claim,” and are merely additional facts
asserted in support of the interference claim already pled in his
complaint. We disagree. The sole basis for entitlement to FMLA leave
pled in Hurlbert’s interference claim was his alleged serious health
condition. See 29 U.S.C. § 2612(a)(1)(D). Thus, the subsequent
assertion of an additional, separate statutory basis for entitlement to
leave (caring for a parent’s serious health condition) effects a
fundamental change in the nature of Hurlbert’s interference claim. See
id. at § 2612(a)(1)(C). Having proceeded through discovery without
amending (or seeking to amend) his complaint to reflect that
fundamental change, Hurlbert was not entitled to raise it in the midst of
summary judgment. See Gilmour, 382 F.3d at 1315 (“A plaintiff may
not amend [his] complaint through argument in a brief opposing
summary judgment.”).
Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286, 1296-97 (11th Cir.
2006) (emphasis added).

33

Thus, consistent with the Eleventh Circuit’s holding in Hurlbert, Mr. Chancey
is prohibited from pursuing his too-late-raised breach of medical confidentiality
claim. See also Flintlock Const. Services, LLC v. Well-Come Holdings, LLC, 710
F.3d 1221, 1228 (11th Cir. 2013) (“This court's precedent foreclosed Well–Come’s
attempt to amend its complaint at the summary judgment stage without seeking leave
of court pursuant to Rule 15(a)(2).”).
Furthermore, Mr. Chancey has abandoned his alleged medical examination
claim. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001)
(finding claim abandoned when argument not presented in initial response to motion
for summary judgment); Bute v. Schuller Int’l, Inc., 998 F. Supp. 1473, 1477 (N.D.
Ga. 1998) (finding unaddressed claim abandoned); see also Resolution Trust Corp.
v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“We decline to exercise our
discretion to entertain this argument which was not fairly presented to the district
court.”); Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1326 (11th Cir. 2000) (failure to brief and argue issue at the district court is
sufficient to find the issue has been abandoned); Hudson v. Norfolk S. Ry. Co., 209
F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party fails to respond to an
argument or otherwise address a claim, the Court deems such argument or claim
abandoned.”); cf. Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler
34

Corp., 10 F.3d 1563, 1568 (11th Cir. 1994) (concluding that a district court “could
properly treat as abandoned a claim alleged in the complaint but not even raised as
a ground for summary judgment”); McMaster v. United States, 177 F.3d 936, 940-41
(11th Cir. 1999) (claim may be considered abandoned when district court is presented
with no argument concerning a claim included in the plaintiff’s complaint).
Accordingly, Fairfield’s Motion is due to be granted with respect to Mr.
Chancey’s ADAA medically-related claim(s).
B.

USS’s Motion

USS’s Motion also has two sections. First, USS argues that it cannot be liable
to Mr. Chancey under the ADAA because it was never his employer. Second, USS
piggybacks onto Fairfield’s Motion and contends that even if USS is appropriately
treated as an employer under the ADAA, Mr. Chancey’s claims are still not
maintainable.
1.

Status of USS as a Party Subject to Suit Under
the ADAA

The heart of the ADAA provides: “No covered entity shall discriminate 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

35

employment.” 42 U.S.C. § 12112(a). USS’s general status as a covered entity is
unchallenged.
However, USS contends that it still cannot be specifically liable to Mr.
Chancey for any ADAA violations because the record undisputedly establishes that
he was an employee of Fairfield, not USS. (See Doc. 25 at 12 (“However, FS and not
USS, was Plaintiff’s employer.”)).13 In urging this position, USS really asks this
court to adopt two separate contentions: (1) “that [implicitly] only a qualified
individual’s [direct or immediate] employer can violate § 12112 of the ADAA” (Doc.
25 at 10); and (2) that the “application of general principles of the law of agency to
undisputed or established facts” confirm that USS lacked the requisite level of control
over Mr. Chancey to be his employer. (Doc. 25 at 12).
In interpreting the scope of potential liability under Title VII, the Eleventh
Circuit has instructed that “[i]t is clear from the language of the statute that Congress
intended that the rights and obligations it created under Title VII would extend
beyond the immediate employer-employee relationship.” Zaklama v. Mt. Sinai
Medical Center, 842 F.2d 291, 294 (11th Cir. 1988); id. (“In finding that the plaintiff
had stated a claim the court of appeals held that parties other than a plaintiff’s actual

The page references to Doc. 25 correspond with the court’s CM/ECF
numbering system.
13

36

or potential employer could be liable under Title VII if they control the plaintiff’s
access to employment and deny that access based on unlawful criteria.” (emphasis
added) (citing Sibley Memorial Hospital v. Wilson, 488 F.2d 1338, 1342 (D.C. Cir.
1973))); Zaklama, 842 F.2d at 295 (“Mt. Sinai was in a position to affect Zaklama’s
employment in the residency program and did affect his employment with its adverse
evaluations.”).
However, whether Congress intended for § 12112(a) of ADAA to reach
disability discrimination allegedly committed by a covered entity that adversely
affected a qualified individual’s relationship with his immediate employer is
apparently still an open question within the Eleventh Circuit. Nonetheless, even if
the court were to determine that only a covered entity that is also an employer or
prospective employer of a qualified individual can violate § 12112 of the ADAA,14
a reasonable jury could conclude that USS’s general human resources oversight and
its specific exclusive exercise of control over Mr. Chancey’s right to return to work
made it (and Fairfield) either a single or joint employer of him under the ADAA. Cf.
USS’s narrow interpretation of the ADAA is seemingly at odds with §
12112(b)(3) which defines “the term ‘discriminate against a qualified individual on
the basis of disability’” to include “utilizing standards, criteria, or methods of
administration -- (A) that have the effect of discrimination on the basis of disability;
or (B) that perpetuate the discrimination of others who are subject to common
administrative control[.]” 42 U.S.C. § 12112(b)(3) (emphasis added).
14

37

Llampallas v. Mini-Circuits, Lab., Inc., 163 F.3d 1236, 1244 (11th Cir. 1998) (noting
that single employer and joint employer doctrines under Title VII “concentrate on the
degree of control an entity has over the adverse employment decision on which the
Title VII suit is based”).
More specifically, the record reflects that during the relevant time frame,
Fairfield was a wholly owned subsidiary of Birmingham Southern Railroad Company,
which was a wholly owned subsidiary of Transtar, which was a wholly owned
subsidiary of USS. (Doc. 25 at 4 ¶ 1). Further, as USS concedes, one of its
employees is responsible for human resources functions of Transtar and the
companies it owns, including Fairfield. (Doc. 25 at 9 ¶ 36). Thus, USS manages
Fairfield’s human resources matters.
In fact, Dr. Szabo, a USS employee, is the key decisionmaker who refused to
permit Mr. Chancey to return to work based upon her medical evaluation of him and
nothing in the record suggests that Fairfield had the right to override Dr. Szabo’s
employment determination that was adverse to Mr. Chancey. Therefore, because
triable issues of fact relating to agency principles exist regarding USS’s role as a
single or joint employer of Mr. Chancey under the ADAA, the improper party portion
of USS’s Motion is due to be denied.

38

2.

USS’s Other Objections to Mr. Chancey’s ADAA
Claims Tied to Fairfield’s Motion

For the same reasons stated in section IV.A.2.a.-b. above, USS’s Motion is due
to be granted with respect to its other objections to Mr. Chancey’s ADAA counts
premised upon Fairfield’s Motion. In short, Mr. Chancey cannot show the element
of “qualified individual” in support of his ADAA discrimination claim due to the
application of Cleveland and the absence of a reasonable explanation behind his
incompatible VA disability application and status.
Further, Mr. Chancey cannot pursue his ADAA medical evaluation claim
against USS in either the manner alleged in his complaint (but ultimately abandoned
by him) or in the refashioned format of a breach in confidentiality claim, as untimely
presented in his opposition to summary judgment.
C.

Evidentiary Motions
1.

Defendants’ Hood Strike Motion

Defendants’ Hood Strike Motion is Daubert-based and seeks to exclude the
opinion testimony of nurse practitioner, Ms. Hood, concerning Mr. Chancey’s ability
to return to work on the basis that “she is not qualified as an expert about [Mr.
Chancey’s] fitness to return to work and because her testimony is not ‘based upon
sufficient facts or data’” (Doc. 28 at 4 ¶ 12) due to her lack of familiarity with Mr.

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Chancey’s work environment. Because the court’s merits-based dismissal of Mr.
Chancey’s ADAA discrimination claim turns upon grounds unrelated to the
admissibility of Ms. Hood’s testimony, Defendants’ Hood Strike Motion is due to be
termed as moot.
2.

Defendants’ Thomas Strike Motion

Defendants’ Thomas Strike Motion is similarly Daubert-based. Because the
court concludes that Mr. Chancey’s ADAA discrimination claim substantively fails
regardless of the admissibility of Dr. Thomas’s expert opinion testimony about Mr.
Chancey’s suitability to return to work, Defendants’ Thomas Strike Motion is also
due to be termed as moot.
V.

CONCLUSION
As a result of the above rulings, both Fairfield’s Motion and USS’s Motion are

due to be granted in part and denied in part. Further, the Hood Strike Motion and the
Thomas Strike Motion are due to be termed as moot. Finally, in the absence of any
pending claims remaining, the court will enter a separate final judgment order
dismissing Mr. Chancey’s lawsuit with prejudice.
DONE and ORDERED this the 12th day of June, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge
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