Cooper v. CLP Corporation

Filing 26

MEMORANDUM OPINION. Signed by Magistrate Judge John E Ott on 12/23/2015. (KAM, )

FILED
2015 Dec-23 PM 04:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ORLANDO COOPER,
Plaintiff,
v.
CLP CORPORATION d/b/a
MCDONALD’S,
Defendant.

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2:13-cv-02152-JEO

MEMORANDUM OPINION
This is an employment discrimination case. Plaintiff Orlando Cooper (“Cooper” or “the
plaintiff”) claims that CLP Corporation, doing business as McDonalds (“CLP” or “the
defendant”), is liable under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq. for disability discrimination and a hostile work environment. (Doc.1 1 (“Complaint” or
“Compl.”)). The cause comes to be heard on CLP’s motion for summary judgment. (Doc. 15).
Counsel for the parties have fully briefed the issues. (See Docs. 16 (Brief in Support of
Summary Judgment (“Def. Br.”)); Doc. 22 (Plaintiff’s Memorandum in Opposition to the
Defendant’s Motion for Summary Judgment (“Pl. Br.”); and Doc. 24 (Defendant’s Reply (“Def.
Reply Br.”)). Upon consideration, the court2 concludes that the defendant’s motion for summary
judgment is due to be granted.

1

References herein to “Doc(s). __” are to the document numbers assigned by the Clerk of the Court to the
pleadings, motions, and other materials in the court file, as reflected on the docket sheet.
2

The parties have consented to an exercise of plenary jurisdiction by a magistrate judge, pursuant to 28
U.S.C. § 636(c) and FED. R. CIV. P. 73. (Doc. 12).

I.

SUMMARY JUDGMENT STANDARDS
Pursuant to Rule 56 of the FEDERAL RULES OF CIVIL PROCEDURE, party is authorized to

move for summary judgment on all or part of a claim or defense asserted either by or against the
movant. Under that rule, the “court shall grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” FED. R. CIV. PROC. 56(a), Fed. R. Civ. The party moving for summary judgment “always
bears the initial responsibility of informing the district court of the basis for its motion,” relying
on submissions “which it believes demonstrate the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991); Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970). Once the
moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show
that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.”
FED. R. CIV. PROC. 56(c)(1)(A) & (B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.” In its review of the evidence, a court must credit the evidence of the
non-movant and draw all justifiable inferences in the non-movant’s favor. Stewart v. Booker T.
Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). At summary judgment, “the judge’s
2

function is not himself to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986).
II.

FACTS3
The McDonald’s restaurant on Acton Road in Birmingham, Alabama is a franchise of

CLP. (Catherine Houston Dec. (“Houston Dec.”) at ¶ 9).4 Cooper returned to the restaurant on
January 28, 2013, as a crew member after being previously employed at that location. (Cooper
Deposition (“Pl. Dep.”) at 61, 67).5 Spanda Holmes (“Holmes”), the general manager, was his
supervisor at the restaurant. Holmes made the decision to hire Cooper on both occasions that he
applied. (Id. at 62).
After Cooper returned to work in 2013, Holmes engaged in name-calling related to his
strabisums, which is more commonly referred to as “lazy eye.” (Pl. Dep. at 106). Specifically,
Cooper claims that Holmes made derogatory remarks towards him referencing his eye condition,
including calling “cockeyed-ass” and “lazy-eyed.” (Id. at 106-07). Cooper requested that
Holmes stop calling him these derogatory names, but this only resulted in her sending him home
early one day. (Id. at 116).
Cooper did complain about Holmes’s name-calling to CLP District Manager Monica
Love (“Love”). (Id. at 117). He does not know if Love ever spoke to Holmes regarding his

3

The facts set out below are gleaned from the parties’ submissions and are viewed in a light most favorable to the
plaintiff. They are the “‘facts’ for summary judgment purposes only. They may not be the actual facts. See Cox v. Administrator
U.S. Steel & Carnegie, 17 F.3d 1386, 1400 (11th Cir. 1994).” Underwood v. Life Insurance Co. of Georgia,
14 F. Supp. 2d 1266, 1267 n.1 (N.D. Ala. 1998).
4

Houston’s declaration is located at document 17, exhibit 1.

5

Cooper’s deposition is located at document 17, exhibit 2.

3

complaint, but, according to Cooper, Holmes’s name-calling did not cease after he spoke with
Love. (Id. at 118). Cooper did not call the CLP human resources department to lodge a formal
complaint. (Id.)
In early April 2013, Cooper wrote Holmes a letter, requesting that he be allowed to take
off work April 11-13, so that he could be present at the hospital with his mother for the birth of
his brother. (Id. at 85-86). He states that Holmes granted him permission by signing his letter,
and further recording these dates in her scheduling book.6 (Id. at 123). Despite this, Cornelius
Martin, a co-worker, called Cooper on his day off on behalf of Holmes and Martin told Copper
that if he did not show up for work within thirty minutes, he would lose his job. (Id. at 86).
Cooper did not go to work day because his brother was still-born, and he did not want to leave
his mother. (Id. at 122). Cooper’s employment with CLP was terminated. Holmes later testified
that she terminated Cooper because he was a “no-call/no-show.” (Holmes Dep. at 23).7
According to Holmes, she received a text message from Cooper on April 14, 2013, that
included a picture of McDonald’s food products in a freezer. The message sated, “The picture is
food from your store in my freezer, and [other McDonald’s employees] helped me get it.”
(Houston Dec. at ¶ 22; Pl. Dep. at 130-31; Holmes Dep. at 22, 51, 55, 76-77, 84). An
investigation was conducted, the police were notified, and other McDonald’s employees were
terminated. (Houston Dec. at ¶¶ 22-25; Holmes Dep. at 77-80). Cooper vehemently denies that
he took the picture, and he asserts that the freezer depicted in the picture is not his. (Pl. Dep. at

6
This letter is not included in the record, but the court will assume for purposes of summary judgment that this letter
does exist, and that Holmes signed it. However, Holmes testified in her deposition that she did not grant Cooper permission to
be off work these dates.

7

Holmes’s deposition is located at document 17, exhibit 3.

4

131-34).
III.

DISCUSSION
The plaintiff alleges that CLP discriminated against him and subjected him to a hostile

work environment on the basis of his strabisums or “lazy eye.” (Comp. at 3-4). The defendant
asserts that his claims are due to be dismissed because (1) he cannot establish a prima facie case
of disparate treatment disability discrimination; (2) even assuming he could state a prima facie
case of discrimination, the undisputed evidence shows CLP took all actions for legitimate, nondiscriminatory, non-pretextual reasons; (3) he cannot state a prima facie case of a hostile work
environment; (4) even assuming he could state a prima facie case, he cannot establish liability
against CLP; and (5) the doctrine of after-acquired evidence forecloses back pay. (Def. Br. at 4).
A.

Count I - ADA Disability Discrimination
1.

Generally

Section 102(a) of the ADA prohibits “discriminat[ion] against a qualified individual on
the basis of a 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 employment.” 42 U.S.C. § 12112(a). In order to establish a prima facie case of
discrimination under the ADA, a plaintiff has the burden at trial to show: (1) that he is disabled;
(2) that he is a qualified individual; and (3) that he was subjected to unlawful discrimination
because of his disability. Mazzeo v. Color Resolutions Int’l, LLC, 746 F3d 1264, 1268 (11th Cir.
2014) (citing Holly v. Clairson Industries, LLC, 492 F.3d 1247, 1255-56 (11th Cir. 2007)).

5

2.

Prima Facie Case
a.

Whether the Plaintiff was Disabled

CLP argues that the plaintiff is not disabled. (Def. Br. at 17-23). Cooper responds that he
is disabled and that CLP has incorrectly cited cases that precede the American with Disabilities
Act Amendments Act of 2008 (“ADAAA”), which is applicable and requires a more expansive
view of what constitutes a disability. (Pl. Br. at 14-18).
Disability is defined three ways under the ADA: (1) a physical or mental impairment that
substantially limits one or more major life activities of such individual; (2) a record of such
impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1). Courts
are guided by the regulations promulgated by the EEOC when applying the provisions of the
ADA. Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 n. 1 (11th Cir. 1998). Under the
ADAAA, a disability is defined as, among other things, a “physical or mental impairment that
substantially limits one or more of the major life activities of such individual.” 29 C.F.R. §
1630.2(g)(1)(i). An impairment qualifies as a disability if:
it substantially limits the ability of an individual to perform a major life activity as
compared to most people in the general population. An impairment need not
prevent, or significantly or severely restrict, the individual from performing a
major life activity in order to be considered substantially limiting. Nonetheless,
not every impairment will constitute a disability within the meaning of this
section.
29 C.F.R. § 1630.2(j)(1)(ii). “The new regulations [under the ADAAA] go on to explain that the
term ‘substantially limits’ is to be broadly construed ‘in favor of expansive coverage, to the
maximum extent permitted by the terms of the ADA.’ ” Barlow v. Walgreen Co.,
8:11–CV–71–T– 30EAJ, 2012 WL 868807, *4 (M.D. Fla. Mar. 14, 2012) (citing 29 C.F.R. §

6

1630.2(j)(1)(i).8 “The ADAAA amendments, however, do not affect the elements of a plaintiff’s
prima facie case.” Howze v. Jefferson County Committee for Economic Opportunity, 2012 WL
3775871, *10 (N.D. Ala. Aug. 28, 2012) (citing Barlow, 2012 WL 868807, *4 (“Despite the
changes brought about by the ADAAA, the elements of a plaintiff’s prima facie case remain the
same.”)). The regulations provide that seeing is considered to be a major life activity as that term
is used in the ADA. 29 C.F.R. § 1630.2(i)(1)(i).
As noted above, the plaintiff alleges he suffers from strabismus or “lazy eye.” It is
undisputed that strabismus is a medical condition, so the relevant question is whether Cooper is
disabled (prong one) or regarded-as disabled (prong three) under the applicable regulations.9 See
Abbott v. Elwood Staffing Services, Inc., 44 F. Supp. 3d 1125, 1166 (N.D. Ala. July 31, 2014)
(“even assuming that the plaintiff had a pregnancy related impairment, the plaintiff was not
suffering from a disability unless that impairment substantially limits a major life activity”)
(italics in original)); May v. American Cast Iron Pipe Co., 2014 WL 1043440 (N.D. Ala. March
17, 2014) (“‘the mere existence of a physical impairment does not constitute a disability under

8

United States District Judge Virginia E. Hopikins has stated:

With the passage of the ADAAA, Congress specifically removed the stringent standards previously
used to determine whether an individual was a “qualified individual with a disability.” Indeed, the new
regulations state that:
The primary purpose of the ADAAA is to make it easier for people with disabilities to
obtain protection under the ADA. Consistent with the Amendments Act's purpose of
reinstating a broad scope of protection under the ADA, the definition of ‘disability’ in
this part shall be construed broadly in favor of expansive coverage to the maximum
extent permitted by the terms of the ADA.
29 C.F.R. § 1630.1(c)(4).
Howze v. Jefferson County Committee for Economic Opportunity, 2012 WL 3775871, *10 (N.D. Ala. Aug. 28, 2012). The
undersigned agrees.
9

The plaintiff does not assert that he is disabled under the second prong concerning “a record of such impairment.”

7

the ADA;’ the statute requires that the physical impairment must also substantially limit a major
life activity.”) (quoting Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998)).
The defendant argues that the plaintiff has failed to specify any major life activity that is
substantially limited by his eye condition. Additionally, the defendant cites numerous cases
wherein courts have found that the plaintiff’s condition does not “substantially limit” the plaintiff
for purposes of the stating a claim.10 (Def. Br. at 19). The plaintiff retorts that the cited cases
predated the amendments to the ADAAA, which mandates that the term “‘disability’ must be
construed ‘to the maximum extent permitted by the terms of [the ADA]” and that the term
“‘substantially limits’ must also be construed broadly.” (Pl. Br. at 15-16 (citing Black v.
Wigington, 1:12-CV-03365-RWS, 2015 WL 468618, *14 (N.D. Ga. February 4, 2015)).
Under the first prong for defining a disability, the court finds the plaintiff has not
demonstrated that he has a disability under the ADAAA. The plaintiff testified that the
strabismus does not limit him in any substantial way. He is able to work, play sports, and
participate in other life activities. (Cooper Dep. at 103-04). His only limitation is when he
covers his “good eye.” When that eye is covered, his vision is impaired. By way of example, at
his deposition, he was unable to see clearly across the table when he covered his left eye. (Id. at
102-03). However, when he uses both eyes, he is not limited at all.
Under the third prong for defining a disability – the “regarded-as” consideration, the
question is not as simple.
10
See Witchard v. Montefiore Medical Ctr., 2009 WL 602884, at *10-12 (S.D.N.Y. Mar. 9, 2009) (strabismus and
“lazy eye” were not substantially limiting impairments); Roberts v. Dimension Aviation,. 319 F. Supp. 2d 985, 990 (D. Ariz.
2004) (holding that strabismus or “lazy eye” was not substantially limiting where plaintiff admitted the alleged condition had
little to no effect on his vision and that he could read and “go about his daily activities”); Jasany v. U.S. Postal Serv., 755 F.2d
1244, 1250 (6th Cir. 1985) (plaintiff’s strabismus was not substantially limiting where the condition “had never had any effect
whatsoever on any of his activities”); and Sackett v. WPNT, Inc., 1995 WL 686708, at *4-5 (W.D. Penn. Sept. 19, 1995)
(strabismus was not a substantially limiting impairment).

8

Th[e] post-ADAAA formulation of the “regarded-as” standard is markedly
different from its predecessor. In the pre-ADAAA regime, courts found liability
in regarded-as cases only where “(1) a covered entity mistakenly believes that a
person has a physical impairment that substantially limits one or more major life
activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting
impairment substantially limits one or more major life activities.” Sutton [United
Air Lines Inc.], 527 U.S. [471,] 489 [(1999)]. Thus, “regarded-as” liability hinged
on the employer’s belief that the employee’s actual or perceived impairment
substantially limited one or more major life activities. Under the new ADAAA
standard, however, perception of an impairment is all that is necessary, “whether
or not the impairment limits or is perceived to limit a major life activity.” 42
U.S.C. § 12102(3)(A) (emphasis added); see also Rubano v. Farrell Area School
Dist., –- F. Supp. 2d –-, 2014 WL 66457, *11 (W.D. Pa. Jan. 8, 2014) (“After the
2008 amendments to the ADA definition of disability, all that an ADA plaintiff
must show to raise a genuine issue of material fact for the ‘regarded as’ prong is
that a supervisor knew of the purported disability.”); Pinckney v. Federal Reserve
Bank of Dallas, 2013 WL 5461873, *9 (W.D. Tex. Sept. 30, 2013) (“The
ADAAA makes clear that the ‘regarded as’ disabled prong no longer requires a
showing that the employer perceived the individual to be substantially limited in a
major life activity.”). “Thus, a ‘regarded as’ claim under the ADAAA is much
easier to prove than a ‘regarded as’ claim before the ADAAA.” Rocha v. Coastal
Carolina Neuropsychiatry Crisis Services, P.A., –– F. Supp. 2d ––, 2013 WL
5651801, *5 (E.D.N.C. Oct. 16, 2013) (citations omitted). In the context of
Powell’s claims, “a plaintiff now might be considered disabled due to obesity
under the ADA if her employer perceived her weight as an impairment.” Lowe [v.
American Eurocopeter, LLC], 2010 WL 5232523, at *7 (N.D. Miss. December
16, 2010).
Powell v. Gentiva Health Services, Inc., 2014 WL 554155, *7 n.14 (S.D. Ala. Feb. 12, 2014).
Accord Snyder v. Livingston, 2012 WL 1493863 (S.D. Ind. April 27, 2012).11 See also Stahly v.
11

In Snyder, the court stated:

Prior to the ADAAA, a plaintiff proceeding under the “regarded as” prong had to show that the employer
mistakenly believed either that she had an impairment that substantially limited a major life activity or that
her actual, but non-limiting, impairment substantially limited a major life activity. Serednyj v. Beverly
Healthcare, LLC, 656 F.3d 540, 556 (7th Cir. 2011), [abrogated on other grounds in Young v. United Parcel
Service, Inc., ___ U.S. ___, 135 S. Ct. 1338 (2015)] (citations omitted). Congress amended the ADA,
however, “to make it easier for people with disabilities to obtain protection under the ADA.” 29 C.F.R. §
1630.1(c)(4); see ADAAA, Pub.L. No. 110–325 (stating that one of the purposes of the ADAAA is
“reinstating a broad scope of protection to be available under the ADA”); Hoffman [v. Carefirst of Fort
Wayne, Inc.], 737 F. Supp. 2d [976,] 984 [(N.D. Ind. August 31, 2010)]. According to the regulations, the
definition of “disability” is to be construed broadly in favor of expansive coverage, and the primary focus in
ADA cases “should be whether covered entities have complied with their obligations and whether
discrimination has occurred, not whether the individual meets the definition of disability.” 20 C.F.R. §
1630.1(c)(4). Consistent with this purpose, “while the ADA previously required the perceived disability to

9

South Bend Public Transp. Corp., 2013 WL 55830, *5-6 (N.D. Ind. Jan. 3, 2013) (finding that a
defendant’s awareness of the fact that the plaintiff was taking medication, had been admitted to
an emergency room for an anxiety attack, had been on leave under the Family and Medical Leave
Act, and was referred to a stress recovery center by the company’s employee assistance program
precluded summary judgment); Majors v. General Electric Co., 2012 WL 2912726,*7 (S.D. Ind.
July 16, 2012) (holding that “although Plaintiff does not meet the definition of disability under
the actual disability or record of impairment standards, there is a genuine issue of material fact as
to whether Plaintiff meets the ‘regarded as’ standard” because “Defendant regarded Plaintiff as
impaired with regards to lifting”); Snyder, 2012 WL 1493863 (comments that the plaintiff was
unstable were sufficient to show in a demotion case that the defendant regarded her as disabled
for purposes of summary judgment).
The defendant asserts that the plaintiff “has presented no evidence that CLP perceived
him as having a disability. Even assuming, arguendo, Holmes referred to [the p]laintiff as
‘cockeyed’ or ‘lazy-eyed,’ such comments are insufficient to show that [the p]laintiff was
regarded or perceived as having an impairment.” (Def. Br. at 21). The plaintiff disagrees,
arguing that the expansive coverage of the ADAAA compels that the motion be denied.
This issue distills to whether the regular use of pejorative terms by Holmes when

substantially limit a major life activity, the [ADAAA] removed this hurdle,” and the “ADA now includes
perceived disabilities ‘whether or not the impairment limits or is perceived to limit a major life activity.’ ”
Becker [v. Elmwood Local School District,], 2012 WL 13569, at *9 [(N.D. Ohio. Jan. 4, 2012)] (quoting 42
U.S.C. § 12102(3)(A)). Accordingly, as the ADAAA changed the interpretation of the disability categories
and broadened the ADA’s scope, Hoffman, 737 F. Supp. 2d at 984, relying on cases applying the
pre-amendment version of the ADA is unpersuasive, see Becker, 2012 WL 13569, at *10 (noting that, despite
factual similarities between the present case and a prior one, the court was unpersuaded because the prior
case relied on the pre-amendment version of the ADA).
Id., 2012 WL 1493863, * 7.

10

addressing the plaintiff is sufficient to overcome the defendant’s motion for summary judgment
under the more liberal standards of the ADAAA. As noted above, the ADA landscape has
changed with the passage of the ADAAA. Congress eased in part the evidentiary burden on
ADA plaintiffs when it “announced that ‘the question of whether an individual’s impairment is a
disability under the ADA should not demand extensive analysis.’ ” Vaughan, 2014 WL
4978439, * 8 (citations omitted).
An individual meets the requirement of “being regarded as having such an
impairment” if the individual establishes that he or she has been subjected to an
action prohibited under this chapter because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is perceived to limit a
major life activity.
42 U.S.C. § 12102(3)(A) (italics added); see Vaughan, 2014 WL 4978439, *10 (citing Barlow,
2012 WL 868807, at *4 (holding that evidence a supervisor told the plaintiff that she could no
longer work for the employer because she was disabled was sufficient to satisfy the “regarded as”
prong of the disability definition under the ADAAA)); Harty v. City of Sanford, No.
6:11–cv–1041– Orl–31KRS, 2012 WL 3243282, *4 (M.D. Fla. Aug. 8, 2012) (holding that
evidence the employer knew of the plaintiff’s restrictions and the plaintiff’s direct supervisor
“asked [him] to resign because of [his] restrictions” is sufficient, under the ADAAA, to prove the
employer regarded the plaintiff as disabled)). In an unpublished opinion, the Eleventh Circuit
Court of Appeals has stated, “Because of that amendment, a plaintiff need demonstrate only that
the employer regarded him as being impaired, not that the employer believed the impairment
prevented the plaintiff from performing a major life activity.” Wolfe v. Postmaster General, 488
F. App’x 465, 468 (11th Cir. Aug. 31, 2012).
The emphasis has shifted from whether the person is disabled to whether the defendant
11

has met the requirements of the legislation. Harty, 2012 WL 3243282, *4. That is not to say that
the first element for proving a claim is no longer viable. To the contrary, it remains, but in a less
prominent position. Courts are instructed that “disability ‘shall be construed in favor of broad
coverage of individuals ... to the maximum extent permitted by [the ADA].’ ” Abbott, 44 F.
Supp. 3d at 1165 (citing 42 U.S.C. § 12102(4)(A) & 29 C.F.R. § 1630.1(c)(4)).
Applying the changes in the ADA to this case, the court is convinced that summary
judgment still is due to be granted the defendant. Holmes’s comments, while cruel and
reprehensible, only demonstrate an awareness of Cooper’s physical condition. They do not
demonstrate that she regarded him as having a physical impairment. As noted by the court in
Powell, “plenty of people with an ‘undesirable’ physical characteristic are not impaired in any
sense of the word.” Id. at 2014 WL 554155, *7. That is the instance in this case. While
Holmes’s statements are clearly commentary on the plaintiff’s physical appearance, they do not
demonstrate that she regarded him as having an impairment. Accordingly, Cooper has failed to
demonstrate a prima facie case of discrimination. Summary judgment is due to be granted on
this claim.
b.

Whether the Plaintiff Was Discriminated Against Because of
an Alleged Disability

Even assuming that the plaintiff could establish that the defendant regarded him as
disabled, the defendant also argues that the plaintiff cannot demonstrate the third element of his
prima facie case – that CLP unlawfully discriminated against him because of any disability.
(Def. Br. at 23). Cooper argues that there is direct evidence of discrimination and there is a fact
dispute as to whether he had permission to be off work. (Pl. Br. at 23-24).

12

Cooper may offer direct evidence in support of his claim of discrimination or he may use
circumstantial evidence under the traditional framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). “To establish unlawful disparate treatment using
circumstantial evidence, a plaintiff generally must demonstrate that his employer treated
similarly situated employees outside of his protected class more favorably than he was treated.”
Wolfe, 488 F. App’x at 468 (italics added). Cooper can state a prima facie case if he can present
evidence that an employee outside his protected class, who was similarly situated to him in all
relevant respects, was treated more favorably with regard to nearly identical conduct. See Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).
As noted above, Holmes made numerous pejorative comments concerning Cooper’s
physical appearance, however, they do not constitute direct evidence of discrimination. Direct
evidence of discrimination is “evidence, which if believed, proves [the] existence of fact in issue
without inference or presumption.” Merritt v. Dillard Paper Company, 120 F.3d 1182, 1189
(11th Cir. 1997). At most, this evidence only suggests discrimination. Additionally, Cooper has
not demonstrated that CLP treated other “no call/no show” persons differently.12 The evidence

12

While the term “no call/no show” does not appear in the CLP handbook, it is replete with references concerning
attendance, including:
If you are sick or you are going to be late for work or absent, you must call in and let the
management know at least three hours before your scheduled shift so we can call a replacement....
and
If an employee must be absent or tardy, he/she is required to notify his/her immediate supervisor.
The employee must notify the supervisor at least three (3) hours before the start of the employee’s shift. The
policy’s purpose is to give supervisors and all employees [an awareness] that the employee’s absenteeism or
tardiness affects the opportunity to adjust their work schedules to ensure that all necessary activities and work
are preformed on time.
(Doc. 17-5 at 2-3 of 50 (Handbook) (underlining in original)). Additionally, it provides:
Your work schedule is posted one day after computer processing, which will be no less than one

13

shows that “no call/no show” persons who were not disabled also generally were terminated
when they failed to report for work. (Houston Dec. at ¶ 20). However, there is no indication in
the record that they are similarly situated to Cooper in that they requested and were granted
permission to be off of work. Despite this, the plaintiff has still failed to demonstrate that he was
terminated because of his disability.
3.

Defendant’s Reason for the Termination

CLP next asserts that even assuming a prima facie case, it is entitled to summary
judgment because Cooper cannot show that its legitimate, non-discriminatory reason for his
termination is a pretext for disability discrimination. (Def. Br. at 25). CLP asserts that it
terminated Cooper because he violated its attendance policy regarding “no call/no show” when
he failed to report to work.
The facts surrounding the time of termination are confusing at best.13 Accordingly, the
court will use Cooper’s deposition testimony to articulate the relevant facts. Sometime before
April 2013, Cooper wrote a letter requesting that he be allowed time to be present with his
mother for the birth of his brother.14 (Pl. Dep. at 85-87, 122). Holmes approved his request.15

day prior to the next work week. You are expected to work your assigned shift as scheduled, unless you are
excused by a salaried manager.
If you need time off, you must contact your store manager before the weekly work schedule is
prepared. Requests for time off will be considered by not always honored....
(Id. at 10 of 50).
13

By way of example, a close look at Cooper’s deposition demonstrates that there was confusion over the dates of the
events (e.g., March versus April 7 versus April 11-13). However, the parties do agree that the events including the conversation
with Cooper, Martin and Holmes are what led to the termination.
14

Neither party has produced the note or a copy of the same.

15
Cooper testified that Holmes “took the note – she took the letter, signed the bottom of it, hung it up in the office, and
she went in the schedule book and gave me the days that I requested off.” (Id. at 87).

14

(Id. at 85-87). While Cooper was at the hospital with his mother, a friend of his, Cornelius
Martin, who also worked at McDonald’s called him on behalf of Holmes. (Id. at 86). Cooper
could hear Holmes in the background talking to Martin.16 (Id.) She wanted Cooper to come to
work because she did not “have anyone to come in.” (Id.) Cooper reminded her, via Martin, that
he had requested the days off to be with his mother. He also informed her that he was with his
mother at that time. (Id.) At some unspecified point in the conversation, Cooper asked Holmes
when she needed him. (Id. at 124). She told him, “Well, right now.” (Id.) Holmes also stated,
“If you can’t get here in thirty minutes, then you are fired.” (Id. at 124-25). Cooper “told her
that [he] would not be able to make it [to work].” (Id. at 85).
Later that day, Martin called Cooper to pick him up at work. Because he was still at the
hospital, Cooper sent someone else to get Martin. (Id. at 125-26). Cooper testified at his
deposition that he did not pick up Martin at work that day.17 (Id. at 126). He also did not return
to work over the following two days because he still “was on [his] requested days off.” (Id. at
123).
The defendant states the plaintiff’s “claim that [he] had requested off from work on the
day(s) in question is irrelevant because [the p]laintiff offers no evidence that ... Holmes did not
reasonably and honestly believe he was scheduled to be at work and was a no-call/no-show for
his shift.” (Def. Br. at 27 (footnote omitted)). The plaintiff retorts that this is a disputed fact
question for the jury. (Pl. Br. at 24).
The law is clear that a court is not to second-guess business decisions or to act as a super16

The following conversation involving Cooper and Holmes all occurred via Martin. (Id. at 125).

17
As best the court can tell from the depositions of Cooper and Holmes, Holmes believes that Cooper picked up Martin
after he failed to report to work. (Holmes Dep. at 50).

15

personnel department. See E.E.O.C. v. Total System Services, Inc., 221 F.3d 1171, 1176 (11th
Cir. 2000). The relevant question is whether the plaintiff has adequately demonstrated that the
proffered reason for the termination is pretextual. Id. The plaintiff must demonstrate that the
decision was motivated by unlawful discriminatory animus. Id. (citing Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)).
In this case, it is clear that there is a dispute surrounding why Cooper did not come to
work. However, even though the court finds that Cooper did seek and receive the approval to be
off, the question is whether Cooper has demonstrated that the defendant’s reason for the
termination was a pretext for discrimination. As to this issue, the record shows that Holmes
demanded that Cooper come to work and he did not. There is nothing before the court to suggest
that her decision to terminate Cooper is anything but her misguided belief that he should have
come to work as she requested, even if she might have previously indicated that he could be off,
particularly after she believed she saw him in the restaurant parking lot later that day.
Accordingly, summary judgment is due to be granted as to this claim on this ground as well.
B.

Count II - Hostile Work Environment Claim

An actionable hostile work environment claim requires that the plaintiff demonstrate the
following: (1) he belongs to a protected group (i.e., he is disabled under the ADA); (2) he was
subjected to unwelcome harassment; (3) the harassment to which he was subjected was based on
a disability; (4) the harassment affected a term, condition, or privilege of his employment; and
(5) the defendant knew or should have known of the harassment, but failed to take prompt,
remedial action. Schwertfager v. City of Boynton Beach, 42 F. Supp. 2d 1347, 1366 (S.D. Fla.
Mar. 25, 1999). Additionally, to be actionable, the harassment must be so severe or pervasive as
16

to “ha[ve] the purpose or effect of unreasonably interfering with [the plaintiff’s] work
performance or creating an intimidating, hostile, or offensive environment.” Id. (quoting Meritor
Savings Bank v. Vinson, 477 U.S. 57, 65 (1986)). In assessing whether the conduct is severe or
persuasive, the Eleventh Circuit has provided a non-exhaustive list to consider, including: “(1)
the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was
physically threatening or humiliating, or a mere offensive utterance; and (4) whether it
unreasonably interfered with the employee's job performance.” Marable v. Marion Military
Institute, 595 F. App’x 921, 927 (11th Cir. 2014) (McCann v. Tillman, 526 F.3d 1370, 1378
(11th Cir. 2008)). The Eleventh Circuit Court of Appeals has also stated, “The courts should
examine the conduct in context, not as isolated acts, and determine under the totality of the
circumstances whether the harassing conduct is sufficiently severe or pervasive to alter the terms
or conditions of the plaintiff’s employment and create a hostile or abusive working
environment.” Donald v. UAB Hospital Management, LLC, 2015 WL 5915323, *5 (N.D. Ala.
Oct. 9, 2015) (quoting Mendoza v. Borden, 195 F.3d 1238, 1246 (11th Cir. 1999) (en banc)).
Cooper premises this claim on Holmes’s comments on his eye. (Pl. Dep. at 97-98).
However, if the plaintiff is neither disabled nor regarded as disabled, none of the harassing
conduct may be deemed to have been discrimination “because of” a disability as defined by the
ADA. Thus summary judgment is due to be granted on that ground. But even assuming a
disability or that the plaintiff is regarded as disabled such that the harassing conduct would be
deemed to be motivated by a prohibited animus, the plaintiff still must show the harassment was
severe or persuasive enough to create an actionable hostile work environment. Cooper
summarized the harassment during his deposition by saying:
17

The main comments to me were: You cockeyed ass, you need to work
faster, You’re too slow. She’s like: You can’t see back there, what’s wrong?
Like I said, ... , everything was in reference to my eye. It was never about how I
moved. It was just mainly jokes towards my eye.
(Id. at 105; see also 105-06). Cooper worked for CLP from January 28, 2013 until his
termination on April 13, 2013. (Id. at 67; Houston Dec. at ¶ 10). As to the frequency of the
comments, Cooper stated that it was an “every day thing.” (Pl. Dep. at 115). On one occasion,
when Cooper asked Holmes to stop calling him by that name (“cockeyed ass”), she made him
clock out and sent him home because he was challenging her authority. (Id. at 115-16). Most
times, however, he just ignored her and kept on working. (Id. at 116). Holmes’s conduct
bothered him enough that Cooper complained one time in late February or early March to
Monica Love, the District Manager. (Id. at 28, 116-18). Cooper did not notice a change in
Holmes’s treatment of him after he talked with Love, but he did not complain any further to
anyone. (Id. at 118).
The court finds that the plaintiff’s evidence is insufficient to overcome the defendant’s
motion for summary judgment on this claim. While the frequency of Holmes’s comments were
daily, the plaintiff worked at the store for only about ten weeks. The comments were derogatory
and offensive, but not physically threatening. They did not interfere with Cooper’s job
performance except on the one occasion Holmes sent him home. Typically, Cooper just kept on
working when Holmes made such remarks. (Id. at 116). Additionally, he only complained once
to the district manager. When there was no change in Holmes’s conduct, Cooper did not
complain any further and he never complained to the Human Resources Director as provided for
in CLP’s Anti-Harassment Policy. (Doc. 17-5 at 16-17 of 50). Under the circumstances, the

18

court finds that the complained-of conduct, while cruel and offensive, was not sufficiently severe
or pervasive that it affected Cooper’s employment. Accordingly, summary judgment is due to be
granted CLP.
To the extent CLP argues that it is entitled to summary judgment because of Cooper’s
failure to utilize its Anti-Harassment Policy, the court also agrees. (Def. Br. at 32). As stated by
United States District Judge Abdul Kallon:
... while an employer can generally be liable for harassment by a supervisor with
immediate authority over an employee (in this case, Lankford), the employer is
not liable where (1) it exercises reasonable care to prevent harassing behavior,
such as, by promulgating an anti-harassment policy that it distributes to its
employees; and (2) the employee fails to take advantage of preventative or
corrective opportunities that the employer offers. See Faragher v. City of Boca
Raton, 524 U.S. 775, 807 (1998); Walton v. Johnson & Johnson Servs., Inc., 347
F.3d 1272, 1286 (11th Cir. 2003).[18] And indeed, [Defendant] SBC undeniably
promulgated an anti-harassment policy which articulated that employees should
complain to SBC’s human resources manager or Chief Financial Officer, ... ,
Baker acknowledged receiving that policy in the employee handbook, ... , and
Baker admittedly failed to complain to the persons designated in the handbook, ....
In failing to do so, Baker acted unreasonably because “once an employer has
promulgated an effective anti-harassment policy and disseminated that policy and
associated procedures to its employees, then ‘it is incumbent upon the employees
to utilize the procedural mechanisms established by the company specifically to
address problems and grievances.’ ” Madray v. Publix Supermarkets, Inc., 208
F.3d 1290, 1298, 1300 (11th Cir. 2000) (quoting Farley v. American Cast Iron
Pipe, 115 F.3d 1548, 1554 (11th Cir. 1997)). Accordingly, summary judgment is
appropriate with respect to Baker’s hostile work environment claim.
Baker v. Supreme Beverage Co., No. 2:13-cv-00222-AKK, 2014 WL 7146790, at *9 (N.D. Ala.
18

Judge Kallon noted:

While this rule, the Faragher defense, does not apply where “the supervisor’s harassment culminates in a
tangible employment action, such as discharge,” Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998),
Baker’s discharge in this case does not preclude application of the Faragher defense because he has not
shown that he was terminated based on his race rather than his failure to complete his deliveries. See Walton
v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1281–82 (11th Cir. 2003) (Faragher defense applied in a
sex harassment case where “there [was] no evidence that [employer], or any of the employees acting on its
behalf, considered [plaintiff's] gender when the company terminated her”).
Baker, 2014 WL 7146790, * 9, n.13.

19

Dec. 15, 2014). In this case, CLP promulgated an anti-harassment policy that was available to
Cooper and, as noted above, he failed to complain in accordance with that policy to the Human
Resources Director, whose number was attached to the CLP Handbook that Cooper received.
(Doc. 17-4 at 36-38 of 50 and 17-5 at 16-17 of 50). While Cooper did complain to Love on one
occasion, that is not sufficient under the circumstances to impose liability on CLP in this
instance.19
IV.

CONCLUSION
Based on the foregoing, CLP’s motion for summary judgment (doc. 15) is due to be

GRANTED.20 A separate final order will be entered.
DONE, this 23rd day of December, 2015.

___________________________
JOHN E. OTT
Chief United States Magistrate Judge

19

The evidence in this case does not demonstrate that Cooper was disabled or “regarded-as” disabled to preclude
application of this defense.
20

In view of the court’s determination on the defendant’s other contentions, it pretermits any discussion concerning
whether CLP is entitled to summary judgment on Cooper’s back pay claim due to the fact that he would have been terminated
shortly after his severance with CLP due to his alleged involvement in the theft of food. (See Def. Br. at 33).

20