Lewis v. United States Steel Corporation Fairfield Works et al
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 12/20/2016. (YMB)
2016 Dec-20 AM 08:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
UNITED STATES STEEL
WORKS, et al.,
Civil Action Number
Alonzo Lewis’s amended complaint alleges violations of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. (“ADA”), retaliation under 42
U.S.C. § 2000e-3(a), and violations of the Age Discrimination in Employment Act,
29 U.S.C. § 623(a) (“ADEA”), against his former employers, United States Steel
Corporation Fairfield Works and United States Steel Corporation, Pittsburgh,
Pennsylvania (collectively, “U.S. Steel”).
The court has for
consideration U.S. Steel’s motion for summary judgment, doc. 41, which is fully
briefed, docs. 42; 48; 50, and ripe for review. For the reasons stated below, the
motion is due to be granted.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), summary judgment is proper
“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.” “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)
(alteration in original). The moving party bears the initial burden of proving the
absence of a genuine dispute of material fact. Id. at 323. The burden then shifts to
the non-moving party, who is required to go “beyond the pleadings” to establish
that there is a “genuine issue for trial.” Id. at 324 (internal citations and quotation
marks omitted). A dispute about a material fact 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).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
dispute will be resolved in the non-moving party’s favor when sufficient competent
evidence supports that party’s version of the disputed facts. But see Pace v.
Capobianco, 238 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
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) (citing
Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)).
Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s
position will not suffice; there must be enough of a showing that a jury could
reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252).
U.S. Steel hired Lewis, whom it documented as hearing impaired, in 2006 as
a general laborer at its Fairfield, Alabama plant. See docs. 20-1 at 1; 43-3 at 6. In
approximately 2008, Lewis became an oiler and held this position until his
discharge in 2014.
See doc. 43-4 at 27.
As an oiler, Lewis worked at an
unenclosed, exposed workspace on the mill floor. See doc. 43-2 at 11. U.S. Steel
uses audiovisual warning systems to alert pipe mill employees that cranes,
forklifts, and/or railcars, are in motion. See doc. 43-2 at 9. The need to hear
warning alarms is important because, as Lewis’s former supervisor Kirk
Zmyslowski testified: “We have EOT [electric overhead traveling] cranes that
carry 10 tons of pipe throughout the building. We have railroad tracks that cross
over. We have forklift traffic — high-volume forklift traffic. It’s a manufacturing
floor, very fast pace[d].” Doc. 43-2 at 8–9. Although Lewis is hearing impaired,
as of June 2007, Lewis was still able to hear warning alarms (albeit, with some
difficulty), as confirmed by an empiric test of his ability to hear in the plant
environment. See doc. 43-4 at 72. Specifically, “Lewis was able to make out the
crane alarm from approximately 150 feet away, the backup alarm for the straddle
car and forklift gave him trouble, he had to concentrate on them to pick them out
from the noise level present during operations.” Id. While at work, Lewis kept his
hearing aids in his pocket, because U.S. Steel’s required safety ear muffs caused
“amplification” and unintelligible “back feed” when worn in conjunction with
Lewis’s hearing aids. Doc. 43-4 at 20–21. Thus, Lewis admittedly could not hear
well during his shifts and primarily communicated with his coworkers and
supervisors via handwritten notes. Docs. 43-1 at 14; 43-4 at 5.
In February of 2014, Lewis’s co-worker Jeremiah Parrish notified a
supervisor named John Milkay that Lewis was “leaning up against a rail car” as an
overhead crane approached and did not appear to notice the alarm. Doc. 43-6 at
20. Lewis denies this particular incident, see doc. 43-4 at 12, but admits that he
sometimes could not hear the alarms in the plant, see id. at 13. Parrish’s report
caused Milkay to contact Dr. Cheryl Szabo, the Medical Director of Fairfield
Works and an occupational physician, see doc. 43-3 at 4, 10, to schedule a hearing
test known as the “2N Warning Signal Evaluation” for Lewis. Doc. 43-6 at 19–
Industrial Hygienist Alan Radenbush conducted the test with a
representative of Lewis’s union present on February 10, 2014. See doc. 43-8 at 9.
Lewis failed to: (1) “understand verbal instructions and necessary conversation”;
(2) “hear and react to mobile equipment horns and back-up alarms”; (3) “hear
and react to overhead crane sirens”; (4) “hear and react to other warning
signals/alarms”; and (5) “hear and react to all warning signals and auditory safety
cues in the workplace under usual working conditions, while wearing required
hearing protection.” See doc. 43-4 at 73. Three days after the test, U.S. Steel gave
the security guard a typed note to give to Lewis when Lewis arrived for his shift,
stating that U.S. Steel would not permit Lewis to enter the mill due to safety
concerns. See doc. 43-4 at 33–34. 2 The note further instructed Lewis to report to
The 2N designation indicates that “hearing protection [i.e., earmuffs] may impair [the
employee’s] ability to hear warning signals.” Doc. 43-3 at 5.
The note stated, pertinent part:
The results from the industrial study need to be discussed with medical. You are
required to be at Dr. Szabo’s office at the USS medical building at 8am 12/14/14.
USS is not allowing you to come to work as it is potentially hazardous for you to
perform your regular duties.
Dr. Szabo’s office the following morning to discuss the results of the 2N hearing
test. See id. During the meeting, Lewis proposed possible accommodations,
including transfer to a vacancy in the toolroom, warehouse, or to one of the
“expeditor jobs,” or simply allowing Lewis to continue navigating the plant by
observing the visual component of the mobile equipment’s audiovisual alarm
systems. See doc. 43-4 at 34. According to Shea Moses, U.S. Steel’s “resident
expert” on “what . . . people [in finishing and shipping] really do,” see docs. 43-1
at 14; 43-2 at 27, each of the jobs Lewis identified as possible accommodations
required the occupant to “be aware of [his] surroundings[, and] hearing is critical
to that,” id. at 24.
Lewis’s supervisor Kirk Zmyslowski, who had only worked at the pipe mill
for a few months, see doc. 43-2 at 33, conducted the investigation into possible
accommodations for Lewis, with assistance from Moses. Although Zmyslowski
“tr[ied] to place [Lewis] in any job that he could to keep [Lewis] employed,” doc.
43-2 at 14, he only considered other possible jobs in which Lewis would have
“zero exposure.” See doc. 43-2 at 15. That is, Zmyslowski would not permit
USS will pay you for your missed shift. 2/14 A turn.
Multiple attempts were made to contact you between 3:30 PM and 5:00 PM on
2/13/14 by Mrs. McGaughy.
A message was left on 1 of the 4 numbers listed for you.
Doc. 43-2 at 70.
Lewis to work any job “[o]n or around or near” any “mobile equipment or
overhead cranes,” even if the job resulted in exposure to mobile equipment for
only “seconds” of each shift. Id. at 21, 24. 3 Zmyslowski ultimately determined
that Lewis could not perform any job inside the mill, because all of the jobs
entailed “some exposure” to mobile equipment. See doc. 43-2 at 23. As a result,
Zmyslowski removed Lewis from his position as an oiler and would not allow him
to “come back into work” due to the “potential hazard” caused by Lewis’s hearing
deficiency. See doc. 43-2 at 8. Zmyslowski admits that he conducted no audit of
possible jobs, doc. 43-2 at 36, no inquiry into possible restructuring of various jobs
in order to reduce or eliminate exposure to mobile equipment, id. at 35, or
examination of the frequency of travel patterns for mobile equipment in each of the
job areas, id. at 45.
Lewis alleges four claims in his amended complaint: (1) a violation of 42
U.S.C. § 12112(a) by “remov[ing] him from the oiler position because of his
hearing impairment and/or fail[ing] to provide a reasonable accommodation that
would allow him to remain actively employed,” see doc. 20 at 5; (2) a “fail[ure] to
properly treat the results of [his] examination and/or his medical condition with
Zmyslowski testified that he “didn’t really study how much exposure there was” for the
other labor grade 2 jobs. Rather, he “looked for any exposure.” Doc. 43-2 at 23.
appropriate confidentiality as required under 42 U.S.C. § 12112(d)(4),” see id. at 6;
(3) retaliation in violation of 42 U.S.C. § 2000e-3(a) by removing him from his
employment as a result of his filing an EEOC charge, see id. at 7; and (4) age
discrimination in violation of 29 U.S.C. § 623(a), see id. at 8. Because Lewis
states that he does not oppose summary judgment as to “the age discrimination
claim and the medical information claim,” doc. 48 at 30, U.S. Steel’s motion as to
these claims is due to be granted. As such, the court will only analyze Lewis’s
claims of disparate treatment, failure to provide a reasonable accommodation, and
retaliation in Sections A, B, and C, below.
A. Disparate Treatment
Lewis alleges that U.S. Steel violated § 12112(a)4 of the ADA when it
removed him from his position. Doc. 20 at 5. Where, as here, Lewis does not
allege direct evidence of discrimination, the court will analyze Lewis’s claim under
the McDonnell Douglas burden-shifting framework. See Holly v. Clairson Indus.,
L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007); Durley v. APAC, Inc., 236 F.3d 651,
657 (11th Cir. 2000). To establish a prima facie case of discrimination, Lewis
must show that: (1) he had a real or perceived disability; (2) he was otherwise
qualified to perform the essential functions of the job; and (3) his employer
42 U.S.C. § 12112(a) provides that “[n]o covered entity shall discriminate against a
qualified individual on the basis of disability in regard to . . . discharge of employees, . . . and
other terms, conditions, and privileges of employment.”
discriminated against him based on his disability. See Williams v. Motorola, Inc.,
303 F.3d 1284, 1290 (11th Cir. 2002). At issue here is whether Lewis was a
“qualified individual with a disability.” See doc. 42 at 19 (emphasis added).
According to U.S. Steel, Lewis is not a “qualified individual” because Lewis posed
a “direct threat to the health or safety of himself or others,” based on Lewis’s
documented inability to consistently hear warning signals while inside the plant.
See id. at 20, 22. The court agrees.
The ADA permits an employer to require “that an individual . . . not pose a
direct threat to the health or safety of other individuals in the workplace.” 42
U.S.C. § 12113(b).5 Whether an employee poses a “direct threat” impacts whether
the employee was “otherwise qualified.” See Waddell v. Valley Forge Dental
Assocs., Inc., 276 F.3d 1275, 1284 (11th Cir. 2001) (“Waddell, because he is
infected with the fatal, contagious disease of HIV, is a direct threat to his
workplace, and therefore not a qualified individual under the ADA.”); Pinckney v.
Potter, 186 F. App’x 919, 925 (11th Cir. 2006) (“[A]n individual is . . . not a
‘qualified individual’ if, by performing the duties of a given position, he would
pose a ‘direct threat’ to himself.”). In analyzing whether an individual poses a
direct threat to himself or others, contrary to Lewis’s assertions, see doc. 48 at 30–
Regulations have extended the definition of “direct threat” to include threats to the
worker himself. See 29 C.F.R. § 1630.2(r); Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 87
(2002) (upholding 29 C.F.R. § 1630.2(r)).
35, in the Eleventh Circuit, the employee “carries the burden of establishing that
‘he was not a direct threat or that reasonable accommodations were available.’”
Waddell, 276 F.3d at 1280 (quoting LaChance v. Duffy’s Draft House, Inc., 146
F.3d 832, 836 (11th Cir. 1998)).
Lewis concedes that he is hearing-impaired, see doc. 48 at 7, that he failed to
hear the alarms while working in the mill on at least some occasions, see doc. 43-4
at 13, and that U.S. Steel documented him as having failed the 2N hearing field test
it administered four days before removing him from his position, see id. at 73.
Nonetheless, Lewis argues that he did not pose a “direct threat” because he had
successfully worked in the mill for eight years without incident and, as such, U.S.
Steel cannot show a “high probability” of harm. See docs. 48 at 37–38; id. at 31
(citing 29 C.F.R. § 1630.2(r)) (EEOC interpretative guidance stating that a direct
threat requires a showing that, in performing the particular functions of a job, there
is a “high probability of substantial harm to the individual”) (emphasis added). To
support his contention, Lewis argues that other judges on this court have
previously considered “performance without incident” as one factor in concluding
that the evidence presented a jury question as to direct threat. See doc. 48 at 37–38
(citing Pollard v. Drummond Co., No. 2:12-cv-03948-MHH, 2015 U.S. Dist.
LEXIS 120279, at **19–23 (N.D. Ala. Sept. 10, 2015) (employee used methadone
to treat pain from a back injury without incident for several years, and a conflict in
testimony between defense expert and treating physician about whether the
plaintiff could safely work in a coal mine). The reliance on Pollard misses the
mark, in part, because in LaChance v. Duffy’s Draft House, a case in which a
restaurant discharged a fry cook who suffered from seizures due to “direct threat,”
see id. at 834, the Eleventh Circuit held that an affidavit from the plaintiff’s
supervisor indicating that the plaintiff had worked around fryers and other
electrical cooking appliances without incident for 13 months, “[did] not overcome
[the plaintiff’s] own admission and his doctor’s statement that he posed a risk of
harm,” and that “[s]uch evidence [did] not create an issue of fact.” 146 F.3d at
Moreover, Pollard is distinguishable because it involved the use of
prescribed medications that, medical literature recognizes, may have different
effects on each patient. In that respect, the Pollard court correctly recognized the
need for individualized medical or objective proof that the medication negatively
affected the plaintiff’s workplace safety. Here, during the 2N hearing test, Lewis
failed to hear and react to various warning signals and verbal instructions. See doc.
43-4 at 73.
In other words, U.S. Steel’s determination that Lewis’s hearing
deficiency posed a direct threat was based on objective, individualized evidence,
and not on stereotypes about persons with auditory difficulties. See Lowe v.
Alabama Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001) (“To prevent the very
reliance on stereotype and related perceptions of an individual’s limitations that the
ADA prohibits, an employer must point to particularized facts about the specific
person’s condition to support its decision.”).
On balance, in view of the foregoing authorities, Lewis has failed to meet his
burden of showing that he did not pose a direct threat. He does not present any
expert testimony to contradict the results of U.S. Steel’s hearing test, and he admits
he could not always hear warning alarms. See doc. 43-4 at 13. His assertion that
“nothing bad has happened” for eight years falls short, especially in light of his
testimony that his hearing has deteriorated during the course of his employment.
See doc. 43-4 at 20 (Q: “Could you hear better when you started at U.S. Steel in
2006 than when you left in 2014?”; A: “Yes.”). For all of the foregoing reasons,
Lewis cannot show that he was a qualified individual and, therefore, cannot
establish a prima facie case.
Alternatively, even if Lewis can make a prima facie case, his claim still fails
because U.S. Steel has articulated a legitimate, nondiscriminatory reason for
removing Lewis from his position: safety concerns due to his inability to hear
warning signals. See Corder v. City of Bessemer, No. 2:14-cv-02133-RDP, 2016
U.S. Dist. LEXIS 98860, at *23 (N.D. Ala. Jul. 28, 2016) (safety is a legitimate,
nondiscriminatory reason for discharge); Scruggs v. Berg Spiral Pipe Corp., No.
14-339-CG-B, 2015 U.S. Dist. LEXIS 80374, at **14–15 (S.D. Ala. June 22,
2015) (same). To prevail, Lewis must present evidence of pretext by showing
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Combs v. Plantation
Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997) (quoting
Sheridan v. E.I. Dupont de Nemours & Co., 100 F.3d 1061, 1072 (3d Cir. 1996)).
Lewis attempts to make this showing through his contention that Milkay’s
“handling of the alleged incident” in which his coworker Jeremiah Parrish
observed him failing to notice an overhead alarm was a “pretext to have [him]
removed by the medical department,” as evidenced by Milkay’s failure to
“interview any of the employees involved in the alleged incident and made no
written reports.” Doc. 48 at 45. This contention is unavailing because even though
Milkay did not investigate or draft an incident report, he immediately telephoned
Dr. Szabo to discuss the incident, see docs. 43-3 at 24; 43-6 at 19, a fact Lewis
does not challenge. Moreover, Lewis testified that he knows of no reason why
Milkay would have lied about this incident, see doc. 43-4 at 12–13, and, indeed,
Lewis has not presented an affidavit from Parrish or any other employee to refute
Milkay’s contention about receiving the report from Parrish.
See Fickling v.
United States, 507 F.3d 1302, 1304 (11th Cir. 2007) (“Once [the moving party’s
initial] burden is met, the nonmoving party must present evidence beyond the
pleadings showing that a reasonable jury could find in its favor.”).
Lewis also attempts to undermine U.S. Steel’s proffered legitimate reason by
pointing out that Alan Radenbush, the Industrial Hygienist who performed Lewis’s
2N hearing evaluation, “allowed [Lewis] to return to his work area after the test,”
doc. 48 at 22. This attempt fails because it was “not part of [Radenbush’s] job to
evaluate whether [Lewis] could work safely in [the plant] environment,” and
Radenbush “made no recommendations regarding [Lewis’s] work.” See doc. 43-8
at 16, 18. While “evidence demonstrating that the decisionmaker engaged in the
same policy violation proffered for an employee’s termination” can be “especially
compelling evidence of pretext,” Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1366 (11th Cir. 1999), there is no evidence that Radenbush was a
“decisionmaker” or that he had authority to “allow” or “disallow” Lewis from
completing his shift following the evaluation.
In light of Lewis’s failure to meet his burden of establishing that he is a
qualified individual or that U.S. Steel’s articulated reason is pretextual, U.S.
Steel’s motion as to Lewis’s disparate treatment claim is due to be granted.
B. Failure to Provide a Reasonable Accommodation
In addition to challenging U.S. Steel’s decision to remove him from the oiler
position, Lewis also asserts a claim for failure to provide a reasonable
accommodation. “The burden of identifying an accommodation that would allow a
qualified employee to perform the essential functions of her job rests with that
employee, as does the ultimate burden of persuasion with respect to showing that
such accommodation is reasonable.” Earl v. Mervyns, Inc., 207 F.3d 1361, 1367
(11th Cir. 2000) (citing Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117
F.3d 1278, 1286 (11th Cir. 1997)).
Relevant here, Lewis suggested several
accommodations to U.S. Steel, including transfer to the positions of “toolroom
attendant,” “warehouse,” or “expeditor,” or simply allowing him to continue
observing only the visual alerts on the cranes, forklifts, and other mobile
equipment, without the audible alerts.6 Docs. 43-4 at 34; 48 at 38. As an initial
matter, Lewis has failed to meet his burden of presenting evidence that any of the
positions he identified were vacant. Instead, Lewis testified only that “I know they
had the, you know, somewhere for me to go work in different areas, warehouse,
toolroom, but none of that was offered.” Doc. 43-4 at 34. Such testimony falls
short of satisfying Lewis’s burden of identifying accommodations, see Mervyn,
207 F.3d at 1367, especially in light of the unrefuted evidence from U.S. Steel that
there were no vacancies for “toolroom attendant” or any jobs in Lewis’s paygrade
Lewis also mentions, during litigation, accommodations such as providing him an escort
to help him navigate the facility, giving him a vibrating pager in lieu of audio alarms, and
allowing him to wear attire that indicates to other employees that he is hearing-impaired.
However, because there is no evidence that Lewis suggested these possible accommodations to
U.S. Steel in February 2014, the court will not consider these. See Fussell v. Georgia Ports
Authority, 906 F. Supp. 1561, 1570 (S.D. Ga. 1995). Likewise, for the same reasons, the court
will not consider the “pulpit” positions Lewis references in his brief, doc. 48 at 41, and because
“a sentence in an unsworn brief is not evidence.” Travaglio v. Am. Express Co., 735 F.3d 1266,
1269 (11th Cir. 2013); see also id. at 1270 (quoting Skyline Corp. v. N.L.R.B., 613 F.2d 1328,
1337 (5th Cir. 1980)) (“‘Statements by counsel in briefs are not evidence.’”).
in the warehouse or as an expeditor, doc. 43-10 at 3, and that the warehouse or
expeditor positions would have been a promotion for Lewis, see doc. 42 at 25
(citing doc. 43-10 at 3). The court adds that even if the warehouse or expeditor
positions were vacant, U.S. Steel had no obligation to transfer Lewis to them
because “[t]he reassignment duty . . . does not require the employer to . . . promote
a disabled employee.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th
Cir. 2001) (citations omitted).
The court also disagrees with Lewis’s contention that it would have been
“reasonable” for U.S. Steel to simply continue allowing him to observe only the
visual component of the plant’s audiovisual alarm system. As U.S. Steel notes,
“[s]ound is needed to convey directionality of warnings, and as to the fact that
mobile equipment operators use horns and back-up alarms to signal their presence
at blind corners and in other locations where the mobile equipment may not be
visible to another employee. Visual signals alone would not be effective.” Doc. 42
at 26. More importantly, however, the visual system clearly did not alert Lewis to
the movement of the crane on the day when Lewis’s co-worker reported Lewis
failed to react to the presence of potential danger. There are legitimate business
reasons why employers are concerned about workplace safety. After all, industrial
plants are filled with hazards that employees must be attuned to in order to
minimize accidents that may cause severe or fatal injuries or just impact the bottom
line. See EEOC v. Stoughton Trailers, L.L.C., No. 08-cv-748-slc, 2010 U.S. Dist.
LEXIS 62279, at **4–5, 12, 25, 36 (W.D. Wis. June 23, 2010) (granting
employer’s motion for summary judgment on basis of “direct threat” because
employee could not “hear bells, alarms and verbal communication” and worked
in a production environment where there was “continual motion” of cranes,
forklifts, and motorized golf carts). A court cannot overlook these legitimate
concerns by finding that the risk is overblown simply because the affected
employee has worked for years at the plant without an incident. To do so in this
case in particular would require that the court ignore Lewis’s admission that
exposure to the mill environment has caused his hearing to worsen, which, of
course, further increases the danger he faced and posed. On this record, the court
cannot find that U.S. Steel acted unreasonably when it rejected Lewis’s request to
maintain the status quo.
Finally, Lewis contends that Kirk Zmyslowski conducted an “inadequate
and incomplete” investigation.
Doc. 48 at 25.
Zmyslowski admits that he
eliminated positions that entailed “any exposure” to cranes or mobile equipment,
even if that exposure was limited to “seconds in a day” when Lewis was walking to
and from the restroom or to and from lunch. Doc. 43-2 at 23–24. Lewis further
attacks Zmyslowski’s method of evaluating other possible jobs, including
Zmyslowski’s recent tenure at the plant, his purported unfamiliarity with the duties
and work areas of each of the jobs, and his admission that he did not conduct audits
of possible jobs, doc. 43-2 at 30, and his failure to invite a representative of
Lewis’s union to participate in discussions of possible accommodations, see doc.
49-4 at 1. Such arguments are unavailing because, “where a plaintiff cannot
demonstrate ‘reasonable accommodation,’ the employer’s lack of investigation into
reasonable accommodations is unimportant.” Willis v. Conopco, Inc., 108 F.3d
282, 285 (11th Cir. 1997) (citing Moses, 97 F.3d at 448).
Due to the lack of evidence of any vacancies within Lewis’s pay grade, and,
more importantly, the substantial evidence that Lewis would not be qualified for
any possible vacancies in jobs he suggested because he would still be exposed —
at least to some degree — to mobile equipment and could not hear the warning
signals, Lewis cannot satisfy his burden of proving that U.S. Steel failed to make
reasonable accommodations. Therefore, for all these reasons, U.S. Steel’s motion
as to the failure to make reasonable accommodations claim is due to be granted.
Finally, Lewis contends that U.S. Steel retaliated against him for filing an
EEOC charge by subjecting him to the 2N hearing evaluation and thereafter using
the results to remove him from his position. See doc. 43-4 at 80. To support his
contention, Lewis challenges U.S. Steel’s position that it requested the test based
on a report from a co-worker, stating that Milkay, who purportedly received the
report from the co-worker, did not draft an incident report, and no one ever told
Lewis that the alleged incident instigated the hearing test. See id. at 17. At issue
here is whether Lewis can establish a prima facie case of retaliation by showing
there is a causal relation between his protected activity and the adverse
employment action. See doc. 42 at 29–30; Meeks v. Computer Assocs. Int’l, 15
F.3d 1013, 1021 (11th Cir. 1994). “To establish a causal connection, a plaintiff
must show that the decision-makers were aware of the protected conduct, and that
the protected activity and the adverse actions were not wholly unrelated.” Shannon
v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (quoting Gupta
v. Florida Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000)). As U.S. Steel
correctly observes, there is no evidence that Zmyslowski, or any other person
involved in requiring the 2N test or in Lewis’s removal from the plant — including
Shea Moses, whom Lewis named in the charge —, had knowledge of Lewis’s
EEOC charge. See docs. 42 at 29; 48 at 46; 43-4 at 40.7 In light of Lewis’s failure
to present evidence that any person directly or indirectly involved in his removal
See doc. 43-4 at 40 (Q: “[D]o you have any evidence that Dr. Szabo knew that you had
made [the January 2014] EEOC complaint?”; A: “I have no idea.”); id. (Q: “Do you have any
evidence that Mr. Milkay knew that you had made this EEOC complaint in January of 2014?”;
A: “This one right here? I have no idea.”); id. (Q: “Or Mr. Moses, any reason to think that he
had knowledge that you had made this EEOC charge in January of 2014?”; A: “I have no
idea.”); id. (Q: “Do you have any reason to believe that Mr. Zmyslowski knew that you had
made this EEOC complaint in January of 2014?”; A: “I have no idea other than notifying
themselves, the EEOC notifying them.”); id. at 40–41 (Q: “And then Mr. Rowdenbush [sic], you
don’t have any information that Mr. Rowdenbush [sic] was informed about this EEOC
complaint. . . .?”; A: “No, sir. Other than the EEOC notifying them themselves.”); id. at 41 (Q:
“Do you have any information as to what Ms. Kristen McGaughy’s knowledge would have been
as to whether or not you had filed this January 17, 2014 EEOC complaint?”; A: “No, I do not.”).
knew about his EEOC charge, Lewis cannot show that his protected expression
was the cause of the adverse employment action against him. Moreover, Lewis has
presented no credible evidence, other than unfounded speculation, for his
contention that a co-worker’s report did not trigger the 2N test or that retaliatory
animus, rather than safety concerns, factored into U.S. Steel’s decision to require
that Lewis submit to the test.
Therefore, U.S. Steel’s motion as to Lewis’s
retaliation claim is due to be granted.
For all of the reasons stated above, U.S. Steel’s motion for summary
judgment, doc. 41, is due to be granted. The court will enter a separate order
consistent with this Memorandum Opinion.
DONE the 20th day of December, 2016.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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