Turner v. United Parcel Service
MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 9/10/14. (SAC )
2014 Sep-10 PM 03:31
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED PARCEL SERVICE,
CIVIL ACTION NO.
Plaintiff Yolonda Turner (“Turner”) brings this action against
defendant United Parcel Service, Inc. (“UPS”), alleging disability
discrimination under the Americans with Disabilities Act and gender
discrimination under Title VII of the Civil Rights Act of 1964.
UPS, pursuant to Fed. R. Civ. P. 56, has moved for summary judgment
on both of Turner’s claims. This court has jurisdiction under 28
U.S.C. § 1331. For the reasons stated below, UPS’s motion is due to
SUMMARY OF UNDISPUTED FACTS
Turner has been a UPS employee since 1990. She has held her
current position of Human Resources Supervisor since 2006, in the
company’s Birmingham-Roebuck location. Her immediate supervisor is
Area Human Resources Manager Lonzell Wilson, a male. As a Human
Resources Supervisor, Turner is responsible for the human resources
needs of four UPS facilities, primarily relating to recruiting,
hiring, and employee relations. As listed by UPS, the essential
functions of the position include, among others, working in a
“additional hours depending on service needs”; and possessing the
cognitive ability to “concentrate, memorize, and recall.” (Doc. 192 at 11).
Turner suffers from fibromyalgia, migraine headaches, cervical
degenerative disc disease, depression, and anxiety. Because of
these conditions, UPS approved Turner for intermittent leave in
accordance with the Family and Medical Leave Act. Because of her
continuing health issues, however, Turner approached Lonzell Wilson
concerning a permanent change in her schedule, requesting “some
flexibility in the morning” start time. (Doc. 19-1 at 164:19-21).
Wilson advised Turner that she must submit an ADA accommodation
request in order to receive such an accommodation; otherwise, she
must continue to use her allotted FMLA leave time.
Pursuant to UPS’s ADA protocol, Turner submitted a request for
accommodation on June 12, 2012, whereupon UPS requested Turner to
submit paperwork from her physician, which she did on July 10,
2012. The Request for Medical Information form, completed by Dr.
John Riser (Turner’s neurologist), stated that Turner was not
currently able to perform all the functions of her position, as
defined by the Essential Job Functions list. Specifically, Dr.
Riser stated that Turner had difficulty with concentrating and
memorizing and recalling information; that she should avoid early
symptoms); that she should have significant time for rest and
flexible work hours (for doctor’s appointments and otherwise); and
that she should avoid working long hours. (Doc. 19-2 at 7-9). Dr.
Riser also advised that Turner could perform her job duties “within
appointments, elimination of fluorescent lighting, and the ability
to work from home. (Doc. 19-2 at 9).
Upon receiving this information, UPS determined that Turner
possibly had a condition qualifying as a disability under the ADA.
UPS then scheduled what is known as a “checklist meeting” with
Turner. UPS describes the meeting as an opportunity “to review her
accommodations that would enable her to perform the essential
functions of her current position or another position at UPS.”
(Doc. 18 at 7). In reality, the only “discussion” that occurred at
the meeting was a reading of the questions and answers on a form
that UPS requested Turner to fill out. (Doc. 19-1 at 199:22-24). On
the form and during the meeting, Turner reported that fatigue and
pain made it difficult to get up in the mornings and that she had
difficulty concentrating and remembering things. Turner requested
accommodations in the form of a flexible work schedule, time off to
attend appointments, elimination of fluorescent lights in her
office, periodic rest breaks, and the right to work from home.
(Doc. 26-3 at 11, 13).
Based on the checklist meeting, UPS determined that Turner was
unable to perform the essential functions of a Human Resources
Supervisor or any other available position,1 either with or without
reasonable accommodations. UPS thereupon sent Turner home and told
her to apply for short-term disability benefits.
Turner grudgingly began a leave of absence on July 18, 2012.
She applied for short-term disability benefits through AETNA, the
third-party administrator of UPS’s short-term disability program.
She was initially denied short-term disability, though her appeal
was successful, allowing her to receive benefits for the period of
July 18, 2012, to October 17, 2012.2
After the initial denial of disability benefits, Turner, on
September 21, 2012, filed a Charge of Discrimination with the EEOC,
alleging discrimination based on disability and gender. (Doc. 1-1).
She received a “right to sue” letter on February 1, 2013. (Doc. 12).
contacted UPS about returning to work. Turner provided UPS with a
new Request for Medical Information form that was completed by
Turner’s rheumatologist, Dr. Elizabeth Perkins. Dr. Perkins stated
Turner requested that only full-time positions in the Birmingham area
be considered as a potential accommodation. (Doc. 26-3 at 12).
Turner did not actually return to work until April 22, 2013.
that Turner was not currently able to perform all of the functions
of her position — namely, that Turner was unable to properly
concentrate, memorize or recall information, or work more than an
eight-hour shift. Dr. Perkins advised that Turner required a
daylight shift with a flexible start time, limited to eight hours
with a 30-minute break. Starting after 8 am and requiring a
flexible work schedule were deemed to be permanent restrictions.
(Doc. 26-3 at 40-41).
checklist meeting with Turner, who once again requested a flexible
work schedule, indicating that she could work up to eight hours per
day, so long as those hours were between 7 AM and 7 PM. (Doc. 26-3
at 45-48). She also requested to be allowed to work from home. UPS
reviewed this information and again determined that Turner was not
able to perform the essential functions of the HR Supervisor or any
available position, with or without reasonable accommodations. UPS
then informed Turner that no positions were available.
On March 8, 2013, after receiving her “right-to-sue” letter
but before she filed this suit, Turner submitted a work release
form to UPS, completed by Dr. Perkins, indicating that Dr. Perkins
had reviewed the essential functions of Turner’s position and was
releasing her to return to work on March 18. (Doc. 19-2 at 54).
UPS then required Turner to submit to an examination by its
doctor, Dr. Michael Cloyd, because previous documents from Dr.
Perkins indicated that Turner’s restrictions were permanent. Dr.
Cloyd examined Turner on March 20, 2013, and initially reported
that Turner must avoid fluorescent lighting and prolonged sitting
or standing, must work a daytime shift, and must not lift more than
10-20 pounds repetitively. (Doc. 19-5 at 39). After receipt of this
report, UPS sought clarification from Drs. Cloyd and Perkins. Dr.
Perkins indicated that “decreased exposure to fluorescent lighting
in her personal office would be helpful,” and frequent lifting and
should be avoided, but otherwise Turner could return to work
clarification, UPS allowed Turner to return to work as a Human
Resources Supervisor, and she did so on April 22, 2013. UPS
replaced the lights in her office upon her return but made no other
After returning to work, Turner filed suit in this court on
May 1, 2013, alleging discrimination based on disability under the
Americans with Disabilities Act, and based on gender under Title
VII of the Civil Rights Act of 1964. It is impossible to tell from
the pleadings whether Turner is pursuing a claim under a mixed
motive theory or under alternative theories. UPS moved for summary
judgment on both claims on June 26, 2014.
CONCLUSIONS OF LAW
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). 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). “[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 curiam) (quoting Anderson v Liberty Lobby, Inc., 477
U.S. 242, 249 (1986)).
Because the court finds that there is no genuine dispute as to
any material fact and UPS is entitled to judgment as a matter of
law on both claims, summary judgment is due to be granted.
Turner’s ADA Claim
“discriminat[ing] against a qualified individual on the basis of
disability” in any one of a number of employment areas. 42 U.S.C.
§ 12112(a) (2012). Discrimination is defined to include failing to
make reasonable accommodations to the known limitations of a
hardship on the employer. 42 U.S.C. § 12112(b)(5)(A). Thus, in
order to establish a prima facie case of discrimination under the
ADA, Turner must prove that “(1) [s]he has a disability; (2) [s]he
is a qualified individual; and (3) [s]he was subjected to unlawful
discrimination because of [her] disability.” Holbrook v. City of
Alpharetta, 112 F.3d 1522, 1526 (11th Cir. 1997).
UPS does not deny that Turner satisfies the first prong at
this stage but challenges Turner’s ability to prove the second and
third. Because Turner cannot establish that she is a qualified
individual under the statute or that UPS unlawfully discriminated
against her, Turner’s ADA claims fails.
Under Title I of the ADA, a “qualified individual” is defined
as “an individual 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) (2012).
Under this definition, if Turner cannot perform the essential
functions of her position, even with reasonable accommodations, she
protection. See Holly v. Clairson Industries, 492 F.3d 1246, 1256
(11th Cir. 2007). This court will first determine the essential
functions of her position, and then determine whether Turner was
capable of performing them, either with or without reasonable
Essential Job Functions
The essential functions of a job are the “fundamental job
duties of the employment position the individual with a disability
position.” 29 C.F.R. § 1630.2(n)(1) (2014). Among other reasons, a
function may be deemed essential if “the reason the position exists
is to perform that function,” there are a “limited number of
employees available among whom the performance of that job function
can be distributed,” or the function is “highly specialized so that
the incumbent in the position is hired for his or her expertise or
“[C]onsideration shall be given to the employer’s judgment as
to what functions of a job are essential . . . .” 42 U.S.C. §
12111(8). Other evidence of essentiality includes job descriptions
prepared before advertising or interviewing for the position, the
amount of time spent performing the function, the consequences of
not requiring the individual to perform, the terms of a collective
bargaining agreement, and the work experience of past or current
employees in the same or a similar job. 29 C.F.R. § 1630.2(n)(3).
UPS has a prepared list of essential job functions that it
provided to each of the physicians to aid in their opinions as to
Turner’s ability to work. (Doc. 19-2 at 11). UPS contends that
working 9-10 hours per day; reporting to work on a regular and
timely basis (by 8 AM); the ability to work additional hours; and
the ability to concentrate, memorize, and recall are all essential
functions of Turner’s position, just as for all full-time nonoperations supervisor positions. Turner is also solely responsible
for facility tours, interviewing, and hiring for many workers in
her facilities. (Doc. 26-2 at 79:5-6, 149:3-7).
UPS’s view that these functions are all essential is entitled
to “substantial weight in the calculus,” D’Angelo v. ConAgra Foods,
Inc., 422 F.3d 1220, 1233 (11th Cir. 2005), but at the summary
judgment stage, “this factor alone may not be ‘conclusive,’” Holly,
492 F.3d at 1258 (quoting D’Angelo, 422 F.3d at 1233). Even if such
evidence is not conclusive, it is sufficient upon which to grant
summary judgment unless Turner “present[s] affirmative evidence to
show that a genuine issue of material fact exists.” Porter v. Ray,
461 F.3d 1315, 1320 (11th Cir. 2006).
Turner does not appear to challenge whether the functions
listed above are essential to her job and presents little to no
evidence that could support such a contention.3 Therefore, this
court finds that no dispute as to material fact exists on the issue
and considers the functions listed above and on UPS’s Essential Job
Functions sheet to be essential.
Turner’s Ability to Perform
As stated above, a qualified individual must be able to
perform the essential functions of her position, either with or
The only evidence presented by Turner that is arguably on topic is her
assertion that Mike Johnson, another HR Supervisor in a different facility,
was given flexibility in his work schedule because of long-term medical
issues. (Doc. 19-1 at 279:3-10). Turner, however, only presents this evidence
for separate purposes, and it is in any case insufficient standing alone to
allow a reasonable jury to find the listed functions to be nonessential;
therefore, the evidence is insufficient to raise a genuine dispute of material
fact. See Ellis v. England, 432 F.3d 1321, 1325-26 (11th Cir. 2005).
without reasonable accommodations granted by the employer. 42
U.S.C. § 12111(8). Therefore, Turner “must show either that [s]he
accommodation, or, failing that, show that [s]he can perform the
accommodation.” Davis v. Florida Power & Light Co., 205 F.3d 1301,
1305 (11th Cir. 2000).
concentrating, and memorizing and recalling information. (Doc. 19-2
at 8, 12, 14.). Turner’s doctors also advised UPS that she should
avoid working early morning hours and needed a flexible work
schedule. Most if not all of these difficulties, however, conflict
with the essential functions of her job as an HR Supervisor, and
thus would prevent her from performing them.
Turner’s only evidence to the contrary are her statements that
these issues are only based upon a “worst-case day scenario,”
meaning that these problems only arose occasionally, so on most
days she could perform the essential functions of the position
without issue.4 (Doc. 19-1 at 198:25). The problem here is that
In its reply brief, UPS seeks to discredit this testimony in its
entirety because it is contradicted by medical evidence Turner provided to UPS
from her doctors. (Doc. 32 at 8). In support, UPS cites cases for the
proposition that an employer is entitled to accord conclusive weight to
medical evidence from a plaintiff’s physicians, even over contrary assertions
from the plaintiff herself. See, e.g., Davis v. Lockheed Martin Operations
Support, Inc., 84 F. Supp. 2d 707, 712 (D. Md. 2000). Particularly at the
summary judgment stage, this court does not find such weighing and favoring of
particular evidence to be proper. See Tolan, 134 S. Ct. at 1866 (“[A] ‘judge’s
this argument ignores the fact that her consistent and dependable
presence is in itself an essential function of the position. (Doc.
26-2 at 78:20-79:11). For example, Turner is the sole person
responsible for facility tours, interviewing, and hiring of preload
(early-shift) workers at the Roebuck UPS facility. (Doc. 26-2 at
79:5-6, 149:3-7). It is therefore essential that Turner be present
and prompt, whether she is having a good health day or a “worstcase day.”5 Thus, even though she may be able to perform the
functions of the position most of the time, this part-time known
functions of her position without an accommodation.
Further, the accommodations suggested by Turner do not qualify
under the ADA as reasonable. “An accommodation is reasonable, and
thus required under the ADA, only if it allows the employee to
perform the essential functions of the job.” Earl, 207 F.3d at
1365. This is so because a contrary rule would require employers to
eliminate aspects of a job that are deemed essential; but under the
ADA, “employers are not required to transform the position into
another one by eliminating functions that are essential to the
nature of the job as it exists.” Lucas v. W.W. Grainger, Inc., 257
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.’”) (quoting Anderson, 477 U.S. at 249).
This is not to say that intermittent leave is impermissible, since
Turner has been properly approved for intermittent FMLA leave when needed.
This is only to say that, for purposes of a permanent ADA accommodation,
prompt presence cannot be treated as anything but essential to the position.
F.3d 1249, 1260 (11th Cir. 2001).
Turner “bears the burden of identifying an accommodation, and
of demonstrating that the accommodation allows [her] to perform the
job’s essential functions.” Id. at 1255-56. In this case, Turner
has suggested two accommodations: modifications to her schedule and
changing of light bulbs in her office. (Doc. 25 at 19). As to
changing of the light bulbs, it is a simple accommodation (and one
that was actually done upon Turner’s return to work), but it would
not in any way alleviate Turner’s problems with consistently
reporting to work on time; standing alone, then, it does not
constitute a reasonable accommodation because it would not enable
her to perform all the essential functions of her position.
A shortened and flexible schedule, on the other hand, is not
a reasonable accommodation at all — allowing this schedule change
would not enable Turner to perform the essential functions of her
job; rather, it would thwart such performance. As already decided,
reporting to work promptly and reliably is an essential function of
the position because of Turner’s admitted responsibilities. Instead
of allowing her to perform the job’s essential functions, this
accommodation would impermissibly change the position’s essential
functions and force UPS to transform her position, which the ADA
explicitly does not require employers to do. Lucas, 257 F.3d at
Because of this, Turner could not perform the essential
functions of the HR Supervisor position, either with or without
reasonable accommodations, so she is not a “qualified individual”
under the statute, and her ADA claim fails.
Discrimination Because of a Disability
UPS flatly denies that it discriminated against Turner, an
absence of motive that would negate the third requirement for
liability under the ADA. An employer may discriminate against an
individual in several different ways, but at issue in this case is
whether UPS discriminated against Turner by “not making reasonable
accommodations to the known physical or mental limitations of an .
. . employee, unless [UPS] can demonstrate that the accommodation
would impose an undue hardship on the operation of the business.”
‘reasonable’ and necessary under the ADA only if it enables the
employee to perform the essential functions of the job.” Lucas, 257
F.3d at 1259-60. “The plaintiff retains at all times the burden of
persuading the jury that reasonable accommodations were available.”
Holbrook, 112 F.3d at 1526.
Turner’s claim fails under this prong for much the same reason
as under the “qualified individual” prong — no accommodation exists
that would enable her to perform the essential functions of her
position, meaning no accommodation is reasonable. As stated above,
allowing Turner a flexible work schedule would be in irreconcilable
conflict with the essential functions of the job — primarily the
responsibility to be promptly and reliably present. Because of
this, Turner has failed to satisfy her burden of identifying a
discriminated against her by failing to provide such a nonexistent
requirement of liability under the ADA.6
Turner claims that UPS failed to reasonably accommodate her by
failing to engage in a true “interactive process” as required by
the ADA. (Doc. 25 at 23-24). Assuming arguendo that such a failure
occurred,7 such failure still does not constitute a violation of
the ADA, and thus does not save her cause of action. See McKane v.
UPS claims that it reasonably accommodated Turner by allowing her a
leave of absence, which it contends is almost a per se reasonable
accommodation. Several of the cases UPS cited, however, found leave to be an
inappropriate accommodation in the situation. See, e.g., Carroll v. City of
Stone Mountain, 544 Fed. App’x 926, 927 (11th Cir. 2013) (“Although a leave of
absence can be a reasonable accommodation, Carroll’s requested accommodations
in this case were not reasonable.”); Santandreu v. Miami Dade County, 513 Fed.
App’x 902, 905 (11th Cir. 2013) (“While a leave of absence may be a reasonable
accommodation, the ADA does not require an employer to provide leave for an
indefinite period of time because an employee is uncertain about the duration
of his condition.”). The cases cited by UPS finding leave to be reasonable are
distinguishable from this case because the leave was given for a limited
duration and the employer guaranteed the employee’s full salary. See Jackson
v. Fujifilm Mfg. USA, No. 8:09-1328-RBH-BHH, 2010 U.S. Dist. LEXIS 141130, *26
(D.S.C. June 18, 2010); Carter v. First Energy Nuclear Operating Co., No.
1:06-CV-2137, 2007 U.S. Dist. LEXIS 58586, *28 (N.D. Ohio Aug. 9, 2007).
Further, this court could not find leave to be a reasonable accommodation in
this case, because a reasonable accommodation must enable the employee to
perform the essential functions of the position “presently, or in the
immediate future.” Wood v. Green, 323 F.3d 1309, 1313 (11th Cir. 2003)
(quoting Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir. 1997)).
But no evidence has been presented that leave would have enabled Turner to
perform her job’s essential functions, especially in light of the undisputed
evidence that the conditions were permanent.
UPS contends that the interactive process employed in this case was
sufficient, (Doc. 32 at 12-16), and this court reaches no conclusion on the
issue, although Turner’s criticism of the rather extensive interactive process
was that it did not produce the result she wanted.
UBS Financial Services, Inc., 363 Fed. App’x 679, 682 (11th Cir.
2010) (“Furthermore, even assuming that UBS failed to engage in an
interactive process, that failure neither amounted to a violation
of the ADA nor relieved McKane of his burden of demonstrating the
availability of a reasonable accommodation.”); Willis v. Conopco,
Inc., 108 F.3d 282, 285 (11th Cir. 1997) (“[W]here a plaintiff
cannot demonstrate ‘reasonable accommodation,’ the employer's lack
of investigation into reasonable accommodation is unimportant.”).
accommodation independent of any interactive process, but she has
failed to do so, thus negating ADA liability.
This court is sympathetic to one of Turner’s complaints about
UPS’s ADA process — that she was told to go home immediately after
requesting an ADA accommodation, even though she had been doing her
job at the time without major issue and believed herself to still
be capable of doing so. Unfair as it may seem, it is simply not a
situation the ADA was designed to remedy, since Turner was unable
to perform several of the essential functions of her position, and
no accommodation from UPS would allow her to do so. The ADA is a
limited remedy and simply does not allow courts to “sit as a ‘super
decision.’” Lloyd v. Housing Auth. of Montgomery, 857 F. Supp. 2d
1252, 1266 (M.D. Ala. 2012) (quoting Elrod v. Sears, Roebuck & Co.,
939 F.2d 1466, 1470 (11th Cir. 1991)). Thus, summary judgment on
Turner’s ADA claim is due to be granted.
Turner’s Title VII Claim
Title VII of the Civil Rights Act of 1964 makes it unlawful to
because of such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1)
(2012). To prove such discrimination, an individual may rely on
either direct or circumstantial evidence. Maynard v. Bd. of Regents
of Univ. of Fla. Dep’t of Educ., 342 F.3d 1281, 1288 (11th Cir.
2003). Direct evidence is “‘evidence, which if believed, proves
existence of fact in issue without inference or presumption.’”
Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997)
(quoting Rollins v. TechSouth, Inc., 883 F.2d 1525, 1528 n.6 (11th
Cir. 1987)). “In the usual case, however, direct evidence is not
present, and the plaintiff must rely on circumstantial evidence to
prove discriminatory intent, using the framework established in
McDonnell Douglas Corp. v. Green.” Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997).
In this case, Turner relies on circumstantial evidence, and
thus upon the McDonnell Douglas burden-shifting method, to prove
her claim. Under McDonnell Douglas, “the plaintiff has the initial
burden of establishing a prima facie case of discrimination.” Combs
v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997). If
the plaintiff meets this burden, the burden shifts “to the employer
. . . [to] produc[e] legitimate, nondiscriminatory reasons for the
challenged employment action.” Id. at 1528. If the defendant meets
this “exceedingly light” burden, Holifield, 115 F.3d at 1564
(quoting Turnes v. Amsouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir.
1994)), the plaintiff then “bears the burden of showing that the
reasons offered were merely pretext,” Rojas v. Florida, 285 F.3d
1339, 1342 (11th Cir. 2002). “In other words, the plaintiff has the
opportunity to come forward with evidence, including the previously
produced evidence establishing the prima facie case, sufficient to
permit a reasonable factfinder to conclude that the reasons given
employment decision.” Combs, 106 F.3d at 1528.
UPS presents three challenges to the viability of Turner’s
Title VII claim. Each will be discussed in turn.
Exhaustion of Administrative Remedies
UPS first claims that some if not all of Turner’s Title VII
administrative remedies. “Prior to filing a Title VII action . . .
a plaintiff first must file a charge of discrimination with the
EEOC.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1279
(11th Cir. 2004). “A plaintiff's judicial complaint is limited by
expected to grow out of the charge of discrimination.” Anderson v.
“[A]llegations of new actions of discrimination are inappropriate,”
id., but claims are permissible if they “‘amplify, clarify, or more
clearly focus’ the allegations in the EEOC complaint,” Gregory, 355
F.3d at 1279 (quoting Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.
1989)). “Courts are nonetheless ‘extremely reluctant to allow
VII],’” so “‘the scope of an EEOC complaint should not be strictly
interpreted.’” Id. at 1280 (quoting Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 460-61, 465 (5th Cir. 1970)).
Under this standard, this court finds that Turner successfully
exhausted her administrative remedies. UPS contends that Turner’s
current allegations go beyond the scope of her EEOC charge, so that
her cause of action should be limited appropriately. It claims that
the EEOC charge was limited to UPS’s alleged “sex stereotyping [of
Turner] by requiring her to take a leave of absence.” (Doc. 18 at
33). Turner now complains of intimidating and derogatory statements
made by her supervisor, Lonzell Wilson. Construing the scope
liberally in favor of the non-movant, the EEOC charge contains
allegations concerning the exceedingly broad issue of a maledominated and gender-discriminatory culture. While the charge does
not specifically mention conduct by Wilson, it could “reasonably be
expected to grow out of the charge of discrimination,” so the
allegations are not barred. Anderson, 379 Fed. App’x at 926.
Similarly, the complaint alleges that “Defendant subjected
Plaintiff to intimidation and harassment because of her gender.”
(Doc. 1 at 5). Contrary to UPS’s argument, harassment by Wilson was
sufficiently alleged by this statement in Turner’s complaint, as
well as in the EEOC charge, so the issue is properly before the
court as part of Turner’s Title VII claim.
Prima Facie Case
To set out a prima facie case for disparate treatment in
a [gender] discrimination case, the plaintiff may show
that: (1) she is a member of a protected class; (2) she
was qualified for the position; (3) she suffered an
adverse employment action; and (4) she was . . . treated
less favorably than a similarly-situated individual
outside her protected class.
Bentley v. Orange Cnty., 445 Fed. App’x 306, 308 (11th Cir. 2011).
UPS only disputes the third and fourth requirements of the prima
facie case — that Turner was subjected to an adverse employment
action and that by that action she was treated less favorably than
a comparable male employee.8 Turner fails to establish such a prima
Adverse Employment Action
employment action. An adverse employment action is “a serious and
UPS also sets forth a cursory argument that Turner was not qualified
for her position. This argument, however, appears with no citation of
authority and is entirely set out in a footnote. This court will not consider
such an argument and deems it waived. See Mock v. Bell Helicopter Textron,
Inc., 373 Fed. App’x 989, 992 (11th Cir. 2010) (“[B]ecause Bell mentions
its Rule 60(b)(5) argument in passing in a footnote only and does not
elaborate on it in any further detail in either one of its briefs, we deem
this argument waived.”); PeoplesSouth Bank v. Farmer & Malone, P.A., 542 Fed.
App’x 810, 812-13 (11th Cir. 2013).
employment.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th
Cir. 2001) (emphasis omitted). “[T]he employee's subjective view of
the significance and adversity of the employer's action is not
controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances.” Id. “[W]hether
an action is sufficient to constitute an adverse employment action
must be determined on a case-by-case basis.” Webb-Edwards v. Orange
Cnty. Sheriff’s Office, 525 F.3d 1013, 1031 (11th Cir. 2008)
(quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir.
UPS claims that Turner’s leave of absence did not constitute
reasonably accommodate Turner under the ADA and therefore cannot be
considered an adverse employment action. But, as reasoned above,
the leave was not a reasonable accommodation under the ADA because
there is no evidence before the court that the leave would enable
Turner to perform the essential functions of her position. Neither
this circuit’s definition of adverse employment action nor any
classification of the action under the ADA has no real bearing on
an analysis under Title VII.
Judged by the Eleventh Circuit’s definition, this court finds
that Turner’s forced leave of absence qualifies as an adverse
employment action. UPS required Turner to leave work with only the
advice to seek short-term disability benefits, a process over which
UPS had no control. (Doc. 26-2 at 28:20-29:4, 31:19-21). If AETNA,
the ERISA disability benefits administrator, denied Turner’s claim,
the leave would be unpaid, and even if the claim was approved, she
would only receive 100% of her salary for thirteen weeks. (Doc. 262
constituted a “serious and material change in the terms . . . of
employment," Davis, 245 F.3d at 1249, since she was forced to take
leave that would have either been unpaid or underpaid, so this act
qualifies as an adverse employment action. Turner, then, has
satisfied this element of the prima facie case.
Less Favorable Treatment than a Comparator
UPS also contends that Turner has failed to show that she
received less favorable treatment than a similarly situated male
employee. In order to satisfy this requirement, Turner must present
evidence that (1) a similarly situated individual (also known as a
comparator) exists, and (2) the comparator received more favorable
treatment than Turner. “Summary judgment is appropriate if the
plaintiff fails to show the existence of a similarly situated
employee, and no other evidence of discrimination is present.” Amos
v. Tyson Foods, Inc., 153 Fed. App’x 637, 647 (11th Cir. 2005).
In order for another employee to be deemed a comparator,
Turner “must show that the ‘employees are similarly situated in all
relevant respects.’” Knight v. Baptist Hosp. of Miami, Inc., 330
F.3d 1313, 1316 (11th Cir. 2003) (quoting Holifield, 115 F.3d at
1562). “The comparator must be nearly identical to the plaintiff to
prevent courts from second-guessing a reasonable decision by the
employer.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th
Turner has offered Mike Johnson, another Human Resources
Supervisor in a different UPS facility, as a would-be comparator.
According to Turner, Johnson was permitted to work from home and
allowed a flexible schedule as an accommodation. (Doc. 19-1 at
279:3-10). This, however, was simply her deduction based upon
hearsay statements by coworkers about Johnson’s hours and the fact
that Johnson frequently sent late-night emails. (Doc. 19-1 at
279:23-280:6). Turner had no personal knowledge regarding any ADA
accommodations granted to Johnson. (Doc. 19-1 at 279:11-18).
character. Courts of this circuit require a much higher level of
comparability before finding someone to be similarly situated. In
Knight, the Eleventh Circuit found that two employees guilty of
rude and disrespectful conduct toward coworkers were not similarly
situated because the plaintiff also had a history of performance
and tardiness problems. 330 F.3d at 1317-18. In Silvera, two school
employees were both found to have decades-old child molestation
convictions, yet only one was fired. Silvera v. Orange Cnty. Sch.
Bd., 244 F.3d 1253 (11th Cir. 2001). The Eleventh Circuit still
found the two not to be similarly situated, because the plaintiff
had a stronger record of recent convictions. Id. at 1259-60.
In this case, Turner has simply not produced evidence for the
court to be able to make such a determination, so she has not met
her burden. Turner has not presented evidence regarding Johnson’s
medical condition, whether he was granted ADA accommodations from
UPS, or the extent of any such accommodations. Because of this,
Further, the Eleventh Circuit has made clear that the only
“evidence” presented regarding Johnson — merely repeating the
insufficient as a matter of law to identify a similarly situated
individual. Amos, 153 Fed. App’x at 647-48 (“Gilbert, however, did
not personally witness anything that substantiates her position,
relying entirely on the statements of other workers. Such testimony
is insufficient as a matter of law to establish a comparator . . .
.”). Therefore, Turner has failed to identify a similarly situated
individual, and thus failed to establish a prima facie case of
The court will assume only for the sake of argument that
Turner has made out a prima facie case. Once a plaintiff has
established a prima facie case of Title VII discrimination, the
burden shifts “to the employer . . . [to] produc[e] legitimate,
nondiscriminatory reasons for the challenged employment action.”
“‘exceedingly light’” — the reasons must only be identified.
Holifield, 115 F.3d at 1564 (quoting Turnes, 36 F.3d at 1061). UPS
has met this burden by stating that it placed Turner on a leave of
absence because it determined that she could not perform the
essential functions of her position, not because of her gender.
(Doc. 19 at 40-41).
After the defendant meets this intermediate burden, “the
burden shifts back to the plaintiff to produce evidence that the
employer's proffered reasons are a pretext for discrimination.”
Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1264
(11th Cir. 2010). “‘[T]o avoid summary judgment [the plaintiff]
must introduce significantly probative evidence showing that the
asserted reason is merely a pretext for discrimination.’” Brooks v.
Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir.
2006) (quoting Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228
(11th Cir. 1993)).
A plaintiff may prove pretext “either directly by persuading
the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Tex. Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. at 248, 256 (1981). The court is not concerned
with whether the defendant’s given reasons are wise or fair, but
some sense and are
Alvarez, 610 F.3d at 1266 (“We do not sit as a ‘super-personnel
department,’ and it is not our role to second-guess the wisdom of
an employer's business decisions—indeed the wisdom of them is
Turner points to two pieces of evidence to prove that UPS’s
stated reason for placing her on leave after finding that she was
unable to perform the essential functions of her position is
pretextual. First, Turner contends that UPS summarily found her
“too sick to work” and refused to accommodate her, but then changed
its position and allowed her to return to work after its own
doctor, Dr. Cloyd, examined her. Turner argues that the reason for
this inconsistency is that Dr. Cloyd’s recommendation made no
mention of Turner’s fibromyalgia, a condition that predominately
affects women, while previous reports mentioned it. This, according
to Turner, shows that UPS’s proffered nondiscriminatory reason is
unworthy of credence and is also direct evidence that UPS’s conduct
fibromyalgia and, by extension, against women. (Doc. 25 at 26-28).
This argument strains credulity. It does not rise to the level of
significantly probative evidence. While at the summary judgment
stage this court must view all evidence in the light most favorable
to the non-movant, the court is not required to accept the nonmovant’s
Paramount Pictures Corp., 20 F.3d 454, 458-59 (11th Cir. 1994)
(“Evidence is viewed in a light most favorable to the nonmoving
party; this, however, does not mean that we are constrained to
accept all the nonmovant’s factual characterizations and legal
arguments.”) (internal citations omitted).
Turner claims that the only difference between Dr. Cloyd’s
recommendation and that of previous doctors is that Dr. Cloyd did
not mention fibromyalgia in his report, but the record clearly
shows other key differences. Most notably, the previous medical
recommendations stated that Turner needed a flexible work schedule,
with one even calling the restriction permanent. (Doc. 19-2 at 8,
33-34). Both reports also mentioned Turner’s issues with cognitive
processes, while Dr. Cloyd’s recommendation did not. (Doc. 19-5 at
39). Further, UPS presented uncontroverted evidence that it sought
further clarification from Drs. Cloyd and Perkins before allowing
Turner to return to work, and Dr. Perkins stated that the only
fluorescent lighting and avoidance of heavy lifting. (Doc. 19-5 at
50). Thus, Turner’s assertion that a fibromyalgia diagnosis is the
only difference in the recommendations is unsupported by the
record, so the suggested inconsistency and discriminatory motive do
not exist, much less show any pretext.
Second, Turner contends that UPS’s denial of accommodations to
her while allowing accommodations to Mike Johnson is proof of
frequently sent late-night emails and she heard from coworkers that
he sometimes came in late because of the heat. (Doc. 19-1 at
279:23-280:6). From this, Turner concludes that Johnson was given
an accommodation. (Doc. 19-1 at 279:3-10). This, on its own, does
survive summary judgment. Brooks, 446 F.3d at 1163. Turner presents
conditions, the accommodations he requested, or the ways in which
UPS actually accommodated him. On this scant record, this court is
simply unable to locate an evidentiary basis upon which a jury
could find or be allowed to find a discriminatory motive. Turner
has failed to present significantly probative evidence that UPS’s
pretextual. Therefore, summary judgment is proper on Turner’s Title
Although there is no prohibition against a plaintiff’s mounting
separate and distinct claims of wrongful conduct by an employer based on the
same set of facts, Turner's ADA claim is hard to reconcile with her Title VII
claim. This anomaly inherent in a mixed motive case was not a factor in this
court's analysis of either theory of liability.
Because there is no genuine dispute as to any material fact
and UPS is entitled to judgment as a matter of law on both of
Turner’s claims, summary judgment is due to be granted. A separate
order will be entered.
DONE this 10th day of September, 2014.
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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