Easter v. State of Alabama Department of Youth Services

Filing 33

MEMORANDUM OPINION and ORDER- The defts' motion for summary judgment (Doc 22 ) is GRANTED with respect to Easter's Title I claim against Wood, and Easter's claims against Wood are DISMISSED WITH PREJUDICE; The deft's motion is DENIED with respect to Easter's Title II and Section 504 claims against the Department of Youth Services, and these claims will proceed. Signed by Magistrate Judge Staci G Cornelius on 3/2/16. (MRR, )

FILED
2016 Mar-02 PM 03:10
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID G. EASTER,
Plaintiff,
v.
STATE OF ALABAMA
DEPARTMENT OF YOUTH
SERVICES; and J. WALTER
WOOD, sued in his official
capacity,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)

Case No.: 2:13-cv-00639-SGC

MEMORANDUM OPINION AND ORDER1
Plaintiff David G. Easter (“Easter”) brings this action against Defendants
State of Alabama Department of Youth Services (“DYS”) and J. Walter Wood
(“Wood”), in his official capacity as Executive Director of DYS, alleging the
defendants discriminated against him in violation of Titles I and II of the American
with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act of 1973
(“Section 504” or “Rehabilitation Act”). The defendants have moved for summary
judgment on all of Easter’s claims pursuant to Rule 56 of the Federal Rules of
Civil Procedure. (Doc. 22). This Court has jurisdiction under 28 U.S.C. §§ 636(c),
1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 32).

1331, and 1367. For the reasons stated below, the defendants’ motion will be
granted in part and denied in part.
I. STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate “if the movant shows there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” “Rule
56(c) mandates the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The party moving for summary judgment always bears the initial
burden of proving the absence of a genuine issue of material fact. Id. at 323. If the
moving party does not meet its initial burden, then the Court must deny the motion
for summary judgment. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir.
1993) (citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991)).
Once the moving party has met its burden, then the non-moving party must
“go beyond the pleadings” and point to specific facts in the record to show there is
a genuine issue for trial. Celotex, 477 U.S. at 324 (citation omitted). 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).
2

“[A] ‘judge’s function’ at summary judgment is not ‘to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine
issue for trial.’”

Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curium)

(quoting Anderson, 477 U.S. at 249). The court must “examine the evidence in the
light most favorable to the non-moving party,” drawing all inferences in favor of
such party. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Any
factual disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports that party’s version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party’s favor when that party’s version of the
events is supported by insufficient evidence.). However, “mere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citation omitted).
II. FACTUAL BACKGROUND2
A. Easter’s Position at DYS
DYS is a state agency that, among other things, operates facilities for the
rehabilitation of delinquent youth in the state of Alabama. (See Doc. 24-2 at 4).3

2

To the extent any factual inferences are drawn, they are drawn in favor of Easter, the
non-movant.

3

In April 2000, DYS hired Easter as a youth services aide assigned to its Vacca
Campus in Birmingham, Alabama. (Id. at 4-5, 32). The Vacca campus is a
secured facility housing younger boys who have been committed to DYS custody.
(See id. at 4). Easter’s responsibilities as a youth services aide include supervising
students at the Vacca Campus and physically restraining students when necessary.
(Id. at p. 7). As a youth services aide, Easter reports to a unit manager, who in turn
reports to either a youth services specialist or a campus administrator. (Id. at 5).
Easter was appointed as a shift supervisor effective September 1, 2007, and
the appointment came with a three-step salary increase, which was approved
through a recommendation for personnel action form signed on behalf of Wood.4
(Doc. 23-5 at 2; Doc. 24-4 at 8). In a letter to Easter confirming his new position,
Wood stated Easter’s appointment to shift supervisor was based on the
recommendation of Tim Davis, Deputy Director for Programs and Client Services

3

All citations to the record refer to document and page numbers as assigned by the
Court’s electronic filing system.
4

On May 8, 2006, Joyce Delbridge, the campus administrator at Vacca Campus,
attempted to promote Easter to the position of youth service child care worker. (Doc. 24-2 at
33). Delbridge, however, did not have the authority to promote Easter; instead, only Wood had
that authority. (Id. at 6). Accordingly, when Tim Davis, DYS Deputy Director for Programs and
Client Services, learned of Easter’s promotion, he explained to Delbridge that the only person
who could promote Easter was Wood, and her attempt to promote Easter was not allowed to take
effect. (Id. at 6-7). The record indicates Easter was not informed the promotion did not take
effect. (See doc. 24-2 at 24). Easter sent a grievance letter to Wood dated June 4, 2007,
questioning why he had not yet received an increase in pay for his promotion to youth service
child care worker. (Id.). The record indicates Davis contacted Easter and “[a]n agreement was
made that [Easter] accept the [s]hift [s]upervisor position in exchange for the [y]outh [s]ervice
[c]hild [c]are [w]orker position.” (Doc. 24-3 at 43).

4

at DYS (“Davis”), and “may be rescinded at any time based on the same
recommendation.” (Doc. 23-5 at 2). Easter’s appointment as a shift supervisor
was ongoing, and he did not have to be reappointed to remain in the position.
(Doc. 24-2 at 11).

As a shift supervisor, Easter took on the additional

responsibility of carrying out duties assigned to the unit manager when the unit
manager was not available. (See id. at 5).
B. Control Force Tactic Training
DYS employees who may have to physically restrain students in the course
of their employment are required to take control force tactic training. (Doc. 24-2 at
7).

The training teaches employees how to defend themselves and how to

physically restrain students without injuring them. (Id.). The control force tactic
training consists of a 40-hour training course and a refresher course. (Id.). During
the refresher course, instructors teach the proper techniques for restraining students
and demonstrate the physical restraint tactics, and the DYS employees walk
through the techniques. (Id. at 10). However, the refresher course is shorter and
less physical than the full control force tactic training. (Id.).
Davis testified DYS requires employees to take both the 40-hour training
course and the refresher course each year. (Id. at 7). Davis would not say if any
DYS employees had been allowed to opt out of the 40-hour training course and
take only the refresher course for control force tactic training.
5

(Id. at 8).

Additionally, Davis testified DYS staff conducting the control force tactic training
would ask if anybody in the training course was “physically impaired” and not able
to complete the training, and would then gather information about those
individuals who were impaired and pass the information to upper-level supervisors.
(Id.).
According to DYS policy and procedures, the administrator of each facility
and unit of DYS, rather than Davis, has the responsibility to ensure the DYS
training requirements are met. (Doc. 24-5 at 10). Alicia Faire, Underwood Hall
acting counselor at the Vacca Campus and Easter’s unit manager, sent a memo to
all Underwood Hall staff on or about May 5, 2009, regarding the control force
tactic refresher course and stating as follows:
[O]n May 12, 2009, Tuesday from 11:30 am to 1:00 pm there will be
a unit [control force tactic] refresher course held in the training room.
Those of you who have medical excuses must attend to get credit for
this training. The entire unit is required to attend.
(Doc. 24-8 at 2). Davis testified he was unaware of Faire’s memo. (Doc. 24-2 at
10).
C. Easter’s Training Record
DYS requires Easter to attend control force tactic training because one of his
responsibilities at the Vacca campus is restraining students when necessary. (Doc.
24-4 at 9). Easter attended the training on at least two occasions prior to 2007.
(Doc. 24-2 at 7; Doc. 24-4 at 9). When Easter was scheduled to attend control
6

force tactic training in 2007, he notified his unit manager at DYS that he had a
medical condition that prevented him doing the full training. (See Doc. 24-4 at 7).
Specifically, Easter gave his unit manager a letter dated March 14, 2007, and
signed by Easter’s physician, stating Easter “has enlargement of his spleen related
to sarcoid, [and] [b]ecause of this condition, he should be restricted to light duty at
work.” (Doc. 24-2 at 35; Doc. 24-4 at 7).
Easter testified his doctor told him to “stay away from physical activity that
could rupture [his spleen.]”

(Doc. 24-4 at 6).

Based on his doctor’s

recommendation, Easter did not attend the full 40-hour control force tactic training
between 2007 and 2010.5 (Id. at 9-10). Easter testified he did not attend the full
training because participants in the training go through “mock moves” in which
their abdomens are exposed to a floor mat as they are taken down to the ground.
(See id. at 11, 19). Easter testified he could not play the part of a student during
the mock exercises in the full control force tactic training due to his enlarged
spleen and that aspect of training is not something Easter would experience when
restraining students on the job.6 (See id. at 25).

5

There is a discrepancy in the record regarding if Easter attended the full 40-hour control
force tactic training course in 2011. (See Doc. 24-4 at 9, 15).
6

DYS asserts there is no admissible evidence Easter objected to only a certain portion of
control force tactic training because its attorney objected to the form of the question during the
deposition and Easter’s counsel did not rephrase the question. (Doc. 26 at p 6, n. 3). Although
in general inadmissible evidence is not considered on a motion for summary judgment, the
evidence may be considered if it could be reduced to admissible form at trial. Jones v. UPS

7

Easter attended the first day of the full 40-hour control force tactic training
when no physical moves are done. (Doc. 24-4 at 11). But, when the instructors
asked if anyone at the training had a medical restriction, Easter “showed them the
medical restriction, [and] they said okay,” so Easter did not attend the rest of the
training. (Id.). Additionally, even though Easter did not take the full 40-hour
control force tactic training from 2007 to 2010, he attended the refresher course
each year that he did not attend the full course. (Id. at 10-11, 25). Easter believed
the refresher course was sufficient to meet his control force tactic training
requirement. (Id. at 25). Accordingly, he continued to restrain students at Vacca
Campus when necessary. (Id. at 10-11).
Davis does not know if Easter was exempted from the control force tactic
training between 2007 and 2010, or if Easter had discussions with anyone at DYS
about being exempted from control force tactic training because of a medical
restriction. (Doc. 24-2 at 9). Davis also denies seeing the March 14, 2007 letter
from Easter’s doctor regarding his enlarged spleen. (Id. at 8-9).
D. DYS Request for Information from Easter
Davis learned some DYS employees were not attending the full 40-hour
control force tactic training when DYS began experiencing staffing issues. (Doc.
24-2 at 9). Davis then looked into which employees were not taking the training
Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (citations omitted). Accordingly, the
undersigned will consider Easter’s testimony in ruling on DYS’s motion for summary judgment.

8

and why. (Id.). As a result of Davis’s investigation, any DYS employee who had
a medical excuse exempting him from the 40-hour control force tactic training
class, including Easter, received a memo from DYS requesting information to
determine if he had a disability and if he could do his job. (Doc. 24-4 at 16; Doc.
24-5 at 12). Prior to receiving the memo from DYS dated November 17, 2010,
Easter had not been questioned about his medical condition or restriction when he
presented the letter from his doctor to the instructors at control force tactic training.
(Doc. 24-4 at 25).
Easter completed the employee questionnaire attached to the memo by
providing the following information: (1) he has an enlarged spleen; (2) he does not
“perform control tactics training due to a doctor’s excuse;” (3) “[he] can perform
all functions of [his] job including restraining students, but [he doesn’t] take
control force tactics;” and (4) he feels “the department can accommodate [him]
when it comes to [his] doctor’s excuse for the enlarged spleen problem.” (Doc. 245 at 17-18). Additionally, Easter responded that he could perform the essential
functions of his job, including restraining students and “hav[ing] the physical
ability/agility required to participate in and complete departmental training
programs.” (Id. at 14).
Also in response to the November 17 memo, Easter’s physician completed a
questionnaire dated January 11, 2011. (Doc. 24-5 at 20-22). Easter’s physician
9

provided the following information to DYS: (1) Easter has a physical impairment,
specifically “history of sarcoidosis with enlargement of spleen (improved
recently);” (2) Easter “should avoid physical contact [] because of spleen
enlargement;” (3) Easter’s impairment is permanent; and (4) “on recent exams []
Eater’s spleen enlargement has improved—however I think it is best that he
continue to avoid very strenuous physical activities such as physically restraining
someone.” (Id.).
E. DYS Fact Finding Hearing
Based on the information Easter and his physician provided DYS in
November 2010 and January 2011, Easter received a letter dated August 4, 2011,
informing Easter that Wood “received a recommendation that employment actions,
including possible demotion and/or suspension and/or dismissal, be taken
regarding [his] employment as a [y]outh [s]ervices [a]ide.” (Doc. 24-5 at 27). The
letter further states the “recommendation reveals [Easter’s] failure to perform the
essential functions of [his] position.” (Id.). Accordingly, a hearing was held on
August 30, 2011, to determine if Easter was capable of performing the essential
functions of his job with or without reasonable accommodations. (Doc. 24-4 at 19;
Doc. 24-5 at 27; Doc. 26-1 at 11). Easter understood the subject of the hearing
“was the possibility that [he] might not continue to be able to work for DYS,” and

10

he also believed another purpose of the hearing was a possible demotion from his
shift leader position. (Doc. 24-4 at 19-20).
Davis was the DYS fact-finding officer at the hearing, and Easter gave
sworn testimony at the hearing and was represented by an attorney. (Doc. 24-2 at
24; Doc. 26-1 at 5, 12). Easter testified he could do all of his job functions and that
he restrained students “all the time,” and Easter’s attorney noted Easter “never had
a problem at work physically restraining students.” (Doc. 26-1 at 15, 18). Easter
acknowledged his physician recommended he not restrain students and he was
going against his physician’s recommendation by doing so. (Id. at 29). Easter
testified he did not go to the full 40-hour control force tactic training because he
didn’t want to be thrown down or “fall hard on his spleen,” but he took the
refresher course every year. (See id. at 15, 40-41). Easter’s attorney stated that if
the full 40-hour control force tactic training is an essential function of his job, he
cannot do that function. (Id. at 26). The only accommodation Easter requested
during the hearing was to not be “thrown down” during full control force tactic
training.7 (Id. at 19, 21, 26).
At the hearing, Easter testified his enlarged spleen was “getting better,” and
his attorney stated Easter felt his physician was “being overly cautious” regarding
7

During the hearing, Davis disputed Easter’s characterization and asserted DYS
employees are “laid down” rather than “thrown down” during the physical exercises in control
force tactic training. (Doc. 26-1 at 30). Davis did admit, however, that several employees had
been hurt in control force tactic training. (Id. at 32).

11

his recommendation Easter not restrain students.

(Doc. 26-1 at 15, 18).

Accordingly, Easter requested an opportunity to return to his physician to get
another recommendation regarding any restrictions on his ability to restrain
students, and DYS gave Easter 30 days to submit updated information after the
hearing.8 (Doc. 26-1 at 22, 54).
Davis asserts he learned of Easter’s medical condition and enlarged spleen
at the fact-finding hearing and he did not review the questionnaire completed by
Easter’s physician until the hearing. (Doc. 24-2 at 21-23). Davis does not recall if
he formed an opinion at the hearing as to whether or not Easter’s medical condition
prevented him from performing essential functions of his job. (Id. at 26).
F. Easter Removed from Shift Supervisor Position
On August 30, 2011—the same day as the DYS fact-finding hearing—Davis
recommended Easter be removed as a shift supervisor, effective August 16, 2011.
(Doc. 24-2 at 25, 28: Doc. 24-15 at 2). Easter’s removal from the shift supervisor
position and his resultant decrease in pay was confirmed in a personnel action form
and in a letter to Easter, which were both signed on behalf of Wood and dated
August 30.9 (Doc. 24-4 at 53; Doc. 24-15 at 2). Davis testified he made the

8

Consistent with DYS’s decision to give Easter 30 days to submit additional information
after the August 30 hearing, Easter received a follow-up memo dated September 7, 2011,
requesting Easter to provide updated information in response to the November 17, 2010 memo.
(Doc. 24-16 at 2).
9

Easter asserts he did not receive the August 30 letter from Wood. (See doc. 24-3 at 42).

12

decision to remove Easter as a shift supervisor several years before the August
2011 hearing and it was only at the hearing that he learned Easter still held the
position.10 (Doc. 24-2 at 11-13, 25; Doc. 24-4 at 23). Accordingly, Davis claims
he made the recommendation to remove Easter from the shift supervisor position
based on the discovery that his prior instructions to remove Easter had not been
carried out. (Doc. 24-2 at 25).
Davis asserts he made the decision to remove Easter as a shift supervisor
several years before the hearing based on problems at the Vacca Campus and
issues with Easter’s job performance. (Doc. 24-2 at 12-13, 25). Specifically,
Davis asserts the Vacca Campus was in “utter chaos” between approximately 2007
and 2009, and DYS found it had “some serious issues at the supervisory level with
regard to holding employees accountable.” (Id.). Davis further asserts during that
time period Easter “was not performing the duties of a shift supervisor as reported
by his supervisors,” so Davis instructed Mr. Thomas, the acting administrator at
Vacca, to remove Easter as a shift supervisor. (Id. at 12). Davis’s instructions to
remove Easter as a shift supervisor in approximately 2007-2009 were not carried
out, and there are no documents reflecting Davis’s instructions.

10

Davis’s claim that he did not know Easter remained as a shift supervisor is disputed by
Davis’s testimony he reviewed Easter’s performance appraisals, which stated in part “Mr. Easter
has performed his duties as a shift supervisor in the Underwood Hall program with perfection.”
(See doc. 24-2 at 17; Doc. 24-3 at 17).

13

Davis’s testimony regarding Easter’s performance is disputed by Easter’s
performance reviews. First, Easter’s performance review covering the period from
August 1, 2007 to August 1, 2008 reflects that Easter’s job performance exceeded
standards, and he had no disciplinary actions during that time. (Doc. 24-3 at 2-3).
Additionally, his review dated February 28, 2008 notes “Mr. Easter performs his
assigned duties professionally at all times” and “[t]here are no weakness[es] in his
job performance.” (Id. at 5). Easter’s performance review for August 1, 2008 to
August 1, 2009 reflects that Easter’s job performance met standards and Easter
received only one oral disciplinary warning for documentation, and the issue was
corrected. (Id. at 6-7, 9). Next, Easter’s performance review for August 1, 2009 to
August 1, 2010 reflects Easter meets standards and had no disciplinary issues and
further states he had “taken on the responsibility of being the only shift supervisor
… [and] consistently works overtime and multiple shifts to ensure the unit is
covered.” (Id. at 13-15). Finally, Easter’s review dated February 8, 2011 states
“Easter has performed his duties as the shift supervisor in the Underwood Hall
program with perfection.” (Id. at 17). Indeed, Davis admitted there is nothing in
writing that reflects anything negative about Easter’s job performance, other than
the reference to one oral disciplinary warning for an issue that was corrected.
(Doc. 24-2 at 16).

14

G. Easter’s EEOC Charge
Although DYS removed Easter from his shift supervisor position on August
30, Easter’s supervisor at Vacca waited until September 8 to give him a memo
regarding the change and informing Easter “that effective immediately [he would]
no longer hold the title of shift supervisor.”

(Doc. 24-17 at 2).

Then, on

September 13, 2011, Easter’s physician updated his responses to the physician
medical questionnaire and lifted the restrictions he had previously put in place,
noting that Easter’s enlarged spleen and history of sarcoidosis was resolved. (Doc.
24-4 at 21, 49-51).
Easter filed an EEOC charge on September 15, 2011, asserting he was
discriminated against because of his disability when he was removed from the shift
supervisor position “before [his] doctor could submit additional information within
the 30-day[] time frame that was addressed in the [August 30] fact finding
hearing.” (Doc. 24-1 at 2). This action followed.
III. ANALYSIS
A. Claim against Walter Wood
Easter asserts a claim for “[v]iolations of Title I of the [ADA] through 42
U.S.C. § 1983” against Wood, in his official capacity as Executive Director of
DYS. (Doc. 10 at 2-8). The defendants argue Easter’s claim against Wood is not
viable because state officers acting in their official capacities are not subject to suit
15

under 42 U.S.C. § 1983 and the Rule 56 record is devoid of evidence against
Wood. (Doc. 23 at 2).
Easter did not respond to the defendants’ arguments regarding his claim
against Wood. Indeed, none of Easter’s brief in opposition to the defendants’
motion for summary judgment addresses his Title I claim against Wood. Instead,
Easter’s opposition brief only addresses his claims against DYS and refers to just a
singular defendant—DYS. (See doc. 25). As a result, Easter has abandoned his
claim against Wood, and Wood is entitled to a judgment in his favor as a matter of
law. Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009) (“When a party
moves for final … summary judgment, we have stated that ‘it becomes incumbent
upon the nonmovant to respond by, at the very least, raising in their opposition
papers any and all arguments or defenses they felt precluded judgment in the
moving party’s favor.’”) (quoting Johnson v. Bd. of Regents, 263 F.3d 1234, 1264
(11th Cir. 2001)) (internal quotation marks and alterations omitted); Resolution
Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), cert denied, 516
U.S. 817 (1995) (“[G]rounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.”).
B. Claims against DYS
Easter asserts claims against DYS under Title II of the ADA and Section 504
based on his allegations he was demoted from his shift supervisor position in
16

violation of the ADA and Rehabilitation Act. Specifically, Easter alleges DYS
demoted him from his shift supervisor position “because of his perceived disability
of sarcoidosis and an enlarged spleen in violation of the Rehabilitation Act … and
the [ADA].” (Doc. 25 at 1).
1. Section 504 claim against DYS
To prevail on a claim brought under Section 504, a plaintiff must be able to
show the defendant “received or was directly benefited by federal financial
assistance.”11 Doyle v. Univ. of Alabama - Birmingham, 680 F.2d 1323, 1326-27
(11th Cir. 1982) (quoting Brown v. Sibley, 650 F.2d 760, 769 (11th. Cir. 1981)). In
its reply brief, DYS asserts Easter’s Section 504 claim fails in part because he
“offers no evidence of federal funds.”12 (Doc. 26 at 1). Arguments raised for the
first time in a reply brief, however, will not be considered by the court. See
Herring v. Secretary, Dept. of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005)
(“As we repeatedly have admonished, arguments raised for the first time in a reply
11

In his amended complaint, Easter alleges DYS receives federal financial assistance.
(Doc. 10 at ¶ 4).
12

DYS also asserts in its reply brief Easter offers “nothing to meet the ‘solely because of’
standard under the Rehab Act” and, therefore, Easter’s claim under the Rehabilitation Act fails as
a matter of law. (Doc. 26 at 1). However, in Easter’s brief in opposition to the defendants’
motion for summary judgment, Easter argues “[t]he record contains evidence that Plaintiff was
regarded as having an impairment and it was this perception that caused his demotion.” (Doc. 25
at 26). Although Easter may not have used the exact language of the statute in his argument, he
is essentially arguing DYS demoted him solely because of his perceived disability. While DYS
may strongly disagree with Easter’s arguments, its assertion Easter offered nothing regarding
whether DYS demoted him solely because of his perceived disability is an overstatement.
Whether Easter has shown a question of material fact regarding if DYS demoted him solely
because of a perceived disability is addressed in section B(2)(c), infra.

17

brief are not properly before a reviewing court.”) (citations and internal quotations
omitted); Pennsylvania Nat. Mut. Cas. Ins. Co. v. J.F. Morgan Gen. Contractors,
Inc., 79 F.Supp.3d 1245, 1256 (N.D. Ala. 2015) (declining to consider an argument
raised for the first time in a party’s reply brief) (citations omitted).
Here, DYS did not explicitly raise the issue of federal funding in its initial
brief or argue Easter did not present evidence DYS received or was directly
benefited by federal financial assistance.13 (See doc. 23). Instead, in a footnote in
its initial brief, DYS simply states without citing to any authority, “the Rehab Act
requires proof that the Defendant is covered by the receipt of federal funds.” (Id.
at 3 n.1). Additionally, among the eight grounds for summary judgment listed in
DYS’s motion for summary judgment is: “The Plaintiff has not established the
factual proof that DYS is covered by the Rehab Act.” (Doc. 22 at 2).
DYS’s passing reference to the requirement of federal funding in its initial
brief and the oblique reference to “factual proof that DYS is covered by the Rehab
Act” in its motion are not sufficient to have raised the issue of whether Easter
presented evidence of federal funding for purposes of his Section 504 claim.
Therefore, because it was raised for the first time in DYS’s reply brief, the
undersigned will not consider DYS’s argument that Easter’s Section 504 claim

13

In his brief in opposition to the defendants’ motion for summary judgment, Easter
asserts “[t]he defendant does not dispute that as a [s]tate [a]gency it receives federal funding and
has not moved for summary judgment on that ground.” (Doc. 25 at 1, n. 1).

18

fails because Easter did not present evidence of federal funding. See Herring, 397
F.3d at 1342. As a result, DYS is not entitled to summary judgment on Easter’s
Section 504 claim on the grounds that Easter did not present evidence DYS
received or benefited from federal funding.
2. Easter’s prima facie case of discrimination
DYS argues it is entitled to summary judgment on Easter’s claims against it
because Easter cannot establish a prima facie case of discrimination in violation of
the ADA or Rehabilitation Act. (Doc. 23 at 12). “The standard for determining
liability under the Rehabilitation Act is the same as that under the [ADA].” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (citations omitted). In order to
establish his prima facie case of discrimination under the ADA or Rehabilitation
Act, Easter must show:

(1) he has a disability or is perceived as having a

disability; (2) he is qualified for the position; and (3) he was subjected to unlawful
discrimination because of his disability or perceived disability.

Greenberg v.

BellSouth Telecommunication, Inc., 498 F.3d 1258, 1263-64 (11th Cir. 2007)
(quoting Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000) and 42 U.S.C.
§ 12102(2)).

DYS argues it is entitled to summary judgment because Easter

cannot establish any of the required elements of his prima facie case. (Doc. 23 at
1, 3, 12).

19

Specifically, DYS asserts Easter cannot establish his prima facie case
because undisputed evidence establishes Davis decided to remove Easter as a shift
supervisor before he knew about Easter’s medical condition, and therefore, the
demotion could not have been because of a disability or perceived disability. (Doc.
23 at 12). The facts, however, are not as clear as DYS would like to believe.
Davis testified he made the decision to remove Easter as a shift supervisor
and instructed a DYS acting administrator to do so several years before he learned
of Easter’s medical condition at the August 2011 fact-finding hearing. (Doc. 24-2
at 10-13). There are no documents in the record to reflect Davis’s instructions to
remove Easter as a shift supervisor before the August 30 hearing. However, when
Davis decided to remove Easter as a shift supervisor after the fact-finding hearing,
the decision was confirmed in a letter to Easter signed on behalf of Wood and in a
personnel action form. (See doc. 24-4 at 53; Doc. 24-15 at 2).
Davis also testified he did not know his instructions to remove Easter as a
shift supervisor had not been carried out until the August 30 hearing. (Doc. 24-2 at
25).

Documents in the Rule 56 record dispute Davis’s testimony.

Easter’s

performance mid-appraisal dated February 2010 states “Easter has taken on the
responsibility of being the only shift supervisor.” (Doc. 24-3 at 13). Additionally,
Easter’s performance mid-appraisal dated February 8, 2011 states “Easter has
performed his duties as the shift supervisor … with perfection.” (Id. at 17).
20

According to Davis, he reviewed Easter’s performance appraisals. (Id. at 16; See
also Doc. 23 at 7). Therefore, he had notice before the August 30, 2011 factfinding hearing that Easter retained his position as a shift supervisor.
Construing all of this evidence in favor of Easter, there is a question of fact
regarding if Davis actually decided to remove Easter as a shift supervisor prior to
the August 30, 2011 hearing.

As a result, DYS is not entitled to summary

judgment on the grounds Davis decided to remove Easter as a shift supervisor
before he learned of Easter’s medical condition. Additionally, as discussed below,
there is sufficient evidence in the Rule 56 record to raise a question of fact
regarding each of the elements of Easter’s prima facie case of discrimination.
a. perceived as having a disability
Easter does not have to show he has an actual disability to establish his
prima facie case of discrimination under the ADA or Rehabilitation Act, but he can
establish his prima facie case by showing he is perceived as having a disability.
See also 42 U.S.C. § 12102(1)&(3). Evidence in the Rule 56 record raises a
question of fact regarding if DYS perceived Easter as having a disability.
First, DYS sent a memo to Easter on November 17, 2010, requesting
specific information about Easter’s medical condition. (Doc. 24-12 at 2). The
memo requested Easter to complete and return a Mandatory Employment

21

Functions and Performance Assessment, along with other documents, and stated in
pertinent part:
At this time, job related information reflects that you are under a
medical restriction which hinders your ability and capacity to perform
your employment duties. Moreover, these restrictions also appear to
interfere with and/or prohibit you from performing some of the
mandatory and essential functions of your position. … DYS must
seek, obtain, and evaluate specific documentation, including your
medical records, … in order to objectively review and ascertain
whether your assigned medical restrictions qualify as a disability and,
if so, whether you can satisfactorily perform the essential functions of
your position with or without reasonable accommodations.
(Id.). Next, several months after Easter submitted information in response to the
November 17 memo, he received a letter from DYS dated August 4, 2011, stating:
Pursuant to your … completion of the Mandatory Employment
Functions and Performance Assessment and[] the completion of the
allied documents[], I have received a recommendation that
employment action, including possible demotion and/or suspension
and/or dismissal, be taken regarding your employment as a Youth
Services Aide. The recommendation reveals your failure to perform
the essential functions of your position. Thus a hearing should be
conducted regarding your ability to perform the essential functions,
duties, responsibilities and results of your position with or without
reasonable accommodations.
(Doc. 24-5 at 27). DYS then held a hearing on August 30, 2011, for the purpose of
“determin[ing] whether there needed to be any … action taken with regard to []
Easter’s ability to perform essential functions” of his job. (Doc. 24-2 at 24).
Viewing this evidence in the light most favorable to Easter, a reasonable jury
could conclude DYS perceived Easter as having a disability.
22

See 42 U.S.C.

§ 12102(3). Thus, there is a question of fact regarding if DYS regarded Easter as
having a disability.
b. qualified for the position
DYS asserts Easter was not qualified for the position of shift supervisor
because he was “a bad shift leader” and he refused to attend mandatory training.
(See Doc. 23 at 7-8, 13). DYS relies upon Davis’s testimony to show there is no
genuine issue of material fact that Easter was not qualified to hold his position.
Davis testified Easter’s supervisors reported that Easter was not performing
his assigned duties as a shift supervisor. (Doc. 24-2 at 12). Davis’s testimony is
disputed by Easter’s performance appraisals. In all of his performance appraisals
between 2007 and 2011, Easter is rated by his supervisors as either meeting or
exceeding standards, and the only disciplinary action noted in Easter’s
performance appraisals is an oral warning for a documentation issue, an issue that
was corrected. (Doc. 24-3 at 2-17). Additionally, Easter’s performance appraisals
contain the following statements:
Easter performs his assigned duties professionally at all times …[,
and] [t]here are no weakness[es] in his job performance.
Easter has taken on the responsibility of being the only shift
supervisor … [and] consistently works overtime and multiple shifts to
ensure the unit is covered.
Easter has performed his duties as the shift supervisor in the
Underwood Hall program with perfection.
23

(Id. at 5, 13, 17).
DYS argues there is no dispute between Davis’s testimony and the
performance appraisals because (1) “meets standard” is a low performance
appraisal and (2) Davis instructed Easter’s supervisors to lower their performance
appraisals of him due to inconsistences between what Davis heard about Easter’s
performance and what was recorded in Easter’s written appraisals. (Doc. 26 at 89). DYS’s arguments do not address the written statements praising Easter in his
performance appraisals or the complete lack of negative comments in Easter’s
performance appraisals. Thus, at the very least, based on Easter’s performance
appraisals, a reasonable jury could conclude Easter was adequately performing his
duties and was not a bad shift leader.
DYS also argues Easter was not qualified to be a shift supervisor because he
did not attend the full 40-hour control force tactic training each year. (See Doc. 23
at 9, 13; Doc. 26 at 9). However, there is evidence in the Rule 56 record to raise a
question of fact regarding if the 40-hour control force tactic training was an
essential requirement of Easter’s job. First, Davis would not say if any DYS
employees had been exempted from the full 40-hour training course and allowed to
take just the refresher course to satisfy the requirement for control force tactic
training. (Doc. 24-2 at 8). Davis acknowledged that instructors conducting the full
40-hour control force tactic training would ask DYS employees in the training if
24

they were “physically impaired” and not able to complete the training. (Doc. 24-2
at 8). In keeping with that testimony, Easter testified that when the instructors
teaching the 40-hour control force tactic course asked if anyone had a medical
restriction, he presented a letter from his doctor regarding his medical condition
and then did not attend the remainder of the training. (See Doc. 24-4 at 11).
Finally, Easter’s unit manger sent a memo to certain DYS staff regarding the
control force tactic refresher course and stating in part: “Those of you who have
medical excuses must attend to get credit for this training.”14 (Doc. 24-8 at 2).
Viewing this evidence in the light most favorable to Easter, there is a question of
fact regarding whether he was required to attend the full 40-hour control force
tactic training to be qualified for his position at DYS.
Easter presented sufficient evidence to show that a reasonable jury could
conclude he was qualified to be a shift supervisor. Thus, he has shown there is a
question of material fact regarding if he was qualified for his position.
c. demoted because of a perceived disability
Davis testified he did not learn of Easter’s medical condition until the
August 30, 2011 fact-finding hearing. (Doc. 24-2 at 21-23). Then, on the same
day he learned of Easter’s medical condition, Davis decided to remove Easter as a
shift supervisor and DYS demoted Easter, resulting in a three-step decrease in pay.
14

According to DYS policy, the administrator of each DYS facility and unit has the
responsibility to ensure training requirements are met. (Doc. 24-5 at 10).

25

(Doc. 24-2 at 25, 28; Doc. 24-15 at 2). Davis testified Easter was demoted after
the hearing simply because Davis did not know before the hearing that his prior
instructions to remove Easter as a shift supervisor had not been carried out. (See
Doc. 24-2 at 11-13, 25). However, as discussed above, evidence in the record
disputes this testimony and raises questions of fact regarding if Davis had
previously decided to have Easter removed as a shift supervisor and if Davis knew
Easter still held the position before the hearing. (See pp. 20-21, supra).
Viewing the evidence in the Rule 56 record in the light most favorable to
Easter, Davis’s decision to demote Easter almost immediately after learning of his
enlarged spleen gives rise to a reasonable inference that Easter was demoted
because of, or solely because of, a perceived disability. Thus, there is a question of
fact regarding if DYS demoted Easter solely because of a perceived disability.
When the evidence in the record is viewed in the light most favorable to
Easter, as required at this stage in the case, there is sufficient evidence to raise a
question of fact regarding each of the elements of Easter’s prima facie case. As a
result, DYS is not entitled to summary judgment on the grounds Easter cannot
establish his prima facie case.
3. DYS’s proferred reasons for Easter’s demotion and pretext
DYS asserts that even if Easter could establish a prima facie case of
discrimination, it is still entitled to summary judgment because Easter cannot show
26

its reasons for demoting him are just pretext for its discriminatory motive. (See
Doc. 23 at 3, 13). Specifically, DYS argues it decided to have Easter removed as a
shift supervisor because Easter did not perform his duties as shift supervisor, did
not attend mandatory training, and attempted to force DYS to accept his
inconsistent positions regarding his ability to attend training and restrain students.
(Id. at 3, 12 & 13). Easter can demonstrate the reasons offered by DYS are pretext
for its discriminatory intent by showing “‘such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in [DYS’s] proffered legitimate
reasons for its action that a reasonable factfinder could find them unworthy of
credence.’” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)
(quoting Sheridan v. E.I. DuPont De Nemours & Co., 100 F.3d 1061, 1072 (3rd
Cir. 1996) (en banc)).
First, DYS asserts it removed Easter as a shift supervisor due to problems
with Easter’s job performance and because Easter was not performing his duties as
a shift supervisor. (Doc. 24-2 at 11-13). However, apart from Davis’s testimony,
there are no documents to support this assertion. Davis agreed there is “nothing in
writing … that reflects anything negative on [Easter’s] performance,” other than a
notation regarding an oral warning for a documentation issue that was corrected.
(Id. at 15-16). In fact, Easter’s performance reviews reflect he was meeting or
exceeding the standards expected of him. (Id. at 13-16). Although DYS argues
27

“meets standards” is a low evaluation, (Doc. 26 at 8), Easter’s performance
evaluations call into question DYS’s assertion Easter was not performing his duties
as a shift supervisor.
DYS also asserts Easter was demoted because he refused to attend
mandatory training. (See Doc. 23 at 13; Doc. 26 at 9). DYS relies on Davis’s
testimony that DYS employees were required to attend both the 40-hour control
force tactic training course and the refresher course each year. (Doc. 24-2 at 7).
Again, Davis’s testimony is disputed. As discussed above, evidence in the Rule 56
record presents a question of fact regarding if Easter was required to attend the full
40-hour control force tactic training or if he could satisfy his training requirement
by attending the refresher course. (See pp. 24-25, supra). Thus, the Rule 56
record shows weaknesses in DYS’s argument that Easter was removed from his
position as a shift supervisor because he refused to attend required training.
Finally, DYS asserts Easter was demoted for trying to force DYS to accept
his inconsistent positions regarding his abilities to attend training and restrain
students.

(Doc. 23 at 12; Doc. 26 at 10).

Specifically, DYS argues it was

duplicitous for Easter to rely on a medical restriction to avoid required training
while ignoring the same restriction by restraining students. (Doc. 26 at 10). On
the other hand, Easter contends he did nothing wrong by not attending the full 40hour control force tactic training and he could not attend the full training because it
28

subjected him to conditions he did not face while restraining students on the job.
(Doc. 24-4 at 10-11, 19, 25). There is a question of fact regarding if Easter was
required to attend the full 40-hour control force tactic training or if the refresher
course was sufficient to satisfy his training requirement. (See pp. 24-25, supra).
Additionally, at this stage in the case, Davis’s testimony that the full training
exposed him to risks he did not face while restraining students on the job must be
believed because courts do not make credibility determinations when ruling on
summary judgment. Anderson, 477 U.S. at 255 (“The evidence of the non-movant
is to be believed….) (citation omitted). Based on the disputed evidence regarding
Easter’s training requirements and Easter’s testimony he was exposed to risks in
training that he did not face while restraining students on the job, a reasonable jury
could conclude there was nothing duplicitous about Easter’s positions regarding
his abilities to attend training and restrain students.
Viewing the evidence in the light most favorable to Easter, a reasonable jury
could find DYS’s “proferred explanation[s] [for demoting Easter are] unworthy of
credence.” Kragor v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1308
(11th Cir. 2012) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981)). As a result, there is a question of fact regarding if the reasons DYS gave
for its decision to demote Easter are pretext for its actual discriminatory motive,

29

and DYS is not entitled to summary judgment on Easter’s Title II and Section 504
claims against it.
IV. CONCLUSION
Based on the foregoing, the defendants’ motion for summary judgment
(Doc. 22) is GRANTED with respect to Easter’s Title I claim against Wood, and
Easter’s claims against Wood are due to be DISMISSED WITH PREJUDICE.
The defendants’ motion is DENIED with respect to Easter’s Title II and Section
504 claims against the Department of Youth Services, and these claims will
proceed.
DONE this 2nd day of March, 2016.

______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

30