Corder v. Bessemer Police Department

Filing 37

MEMORANDUM OPINION. Signed by Judge R David Proctor on 7/28/2016. (AVC)

FILED
2016 Jul-28 PM 02:45
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TERRI LYNN CRUCE CORDER,
Plaintiff,
v.
CITY OF BESSEMER,
Defendant.

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Case No.: 2:14-cv-02133-RDP

MEMORANDUM OPINION
I.

Introduction
This case is before the court on Defendant’s Motion for Summary Judgment (Doc. # 25),

filed February 24, 2016. The Motion is fully briefed. (Docs. # 26, 27, 31, 35). In this case,
Plaintiff alleges violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq., amended by the Civil Rights Act of 1991, and the Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. § 12101 et seq. Defendant contends Plaintiff has failed to establish a prima
facie case and, in any event, cannot establish that Defendant’s articulated reason for terminating
her employment is a pretext. After careful review, and for the following reasons, the court
determines Defendant’s Motion is due to be granted.
II.

Relevant Undisputed Facts 1
Plaintiff, a white female, was hired by the City of Bessemer’s (the “City” or

“Defendant”) Police Department on April 7, 1997, as a police officer. (Doc. # 27-1 at pp. 17-20,
1

The facts set out in this opinion are gleaned from the parties’ submissions of facts claimed to be
undisputed, their respective responses to those submissions, and the court’s own examination of the evidentiary
record. All reasonable doubts about the facts have been resolved in favor of the nonmoving party. See Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002). These are the “facts” for summary
judgment purposes only. They may not be the actual facts that could be established through live testimony at trial.
See Cox v. Admr. U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994).

94-95). She later worked as a detective. (Id.). The City of Bessemer Police Department is subject
to the rules and regulations promulgated by the Personnel Board of Jefferson County (“PBJC”).
(Doc. # 27-4 at p. 1; Docs. # 27-5 – 27-6 at Bessemer 00232-301). The positions of police officer
and detective are classified as Grade 17 under the PBJC Classification Plan. 2 (Doc. # 27-6 at Ex.
B; see also Doc. # 27-3 at pp. 83-84).
On the morning of June 3, 2010, Plaintiff fell as she was walking into work and sustained
injuries to her left knee and right leg. (Doc. # 27-1 at pp. 24-27; Doc. # 31-3; Doc. # 31-4). She
reported the fall to a supervisor later that day and was taken to Brookwood Hospital where she
was seen by a physician and released back to work, but on light duty. (Doc. # 27-1 at pp. 26-28;
see also Doc. # 31-4). Plaintiff returned to “work in the everyday fashion that [she] had been
working” (that is, essentially and without dispute, full duty). (Doc. # 27-1 at p. 28). She claims to
have experienced pain in both knees in January 2012, although she did not report the pain to her
supervisor until four months later (on April 24, 2012). (Id.). Plaintiff went to see the City’s
authorized workers’ compensation physician, Dr. Staudinger, who released her to full duty and
determined that her injuries were not related to her June 2010 incident. (Id. at pp. 29-33; Doc. #
27-2 at Bessemer 00178).
Plaintiff was suspended for twenty working days starting in late August 2012, after
Defendant concluded she improperly used the Law Enforcement Tactical System (“LETS”).
(Doc. # 27-1 at p. 33; Doc. # 31-5). During that suspension she visited her personal doctor, Dr.
Johnson, who recommended her work duties be restricted. (Doc. # 27-1 at p. 33; Doc. # 27-2 at
Bessemer 00181). On September 10, 2012, still during the time she was suspended, Plaintiff

2

Physical demands for a Grade 17 Police officer include “the ability to sit and stand for extended periods,
occasional running over possible rough or uneven terrain in the apprehension of suspects, bending, stooping,
crouching in possibly confined spaces, the physical agility to restrain individuals, the physical dexterity in the use of
hand eye coordination and manipulative skills in use of fingers and limbs.” (Doc. # 27-6 at Ex. B).

2

learned she had been reassigned from detective to patrol officer. (Doc. # 27-1 at p. 34-35; Doc. #
27-3 at pp. 91-92; Doc. # 27-4 at p. 2). On September 24, 2012, she returned to Dr. Staudinger
who restricted her work activity to “No extended walking. No running. No squatting.” (Doc. #
27-2 at Bessemer 00182). Plaintiff went to a third physician, Dr. Cowley, on October 16, 2012.
Dr. Cowley released her to full duty. (Id. at Bessemer 00186). Despite that release, Plaintiff
emailed Captain Graddis and claimed she was “not able to run, stand for long times or squat
down or get on the knees.” (Id. at Bessemer 00190). Accordingly, Plaintiff requested and was
granted time off until she could see her doctor. (Id.; Doc. # 27-1 at p. 48). Plaintiff also emailed
Chief Rutledge and Deputy Chief Roper, and stated that she was a liability to the city, fellow
officers, and citizens due to her injury hindering her performance. (Doc. # 27-2 at Bessemer
00189). Chief Rutledge replied and stated that he had not received any order or documentation
from her physician, and was looking forward to Plaintiff returning to work. (Id.).
On October 29, 2012, Plaintiff again saw Dr. Staudinger who determined that Plaintiff
could not perform the essential functions of her job and restricted her to “primarily seated work,
limited extended ambulation. No running.” (Id. at Bessemer 00191). On October 30, 2012, upon
receiving this information from Plaintiff’s doctor, Chief Rutledge assigned Plaintiff to the
warden’s office to accommodate her restriction, and requested she submit further information on
when she would be reevaluated and return to full duty. (Id. at Bessemer 00192; Doc. # 27-1 at
pp. 55-56; Doc. # 27-4 at p. 3).
Plaintiff underwent knee surgery on November 21, 2012, and was cleared to return to
work with sedentary work restrictions on December 3, 2012. (Doc. # 27-1 at pp. 59-61; Doc. #
27-2 at Bessemer 00193). Nevertheless, on December 1, 2012, she returned to work at the jail.
(Doc. # 27-1 at pp. 61-62). Upon reporting to work, Plaintiff submitted a list of her prescribed

3

medications and was sent home by Captain Gaddis. (Doc. # 27-1 at pp. 61-64). It had been at
least twelve hours since Plaintiff last took her medications. (Id. at p. 63). The City has a policy
that an officer may not work under the influence of controlled substances. (Id.). Plaintiff was
transferred to work in dispatch while she recovered from her surgery. (Doc. # 27-4 at p. 3).
However, a dispatcher position is outside the Grade 17 classification of the PBJC’s Classification
Plan, (id.), and the PBJC rules required Plaintiff to first apply for the position of dispatcher. (Id.).
No other Grade 17 positions were then open, and Plaintiff was placed on administrative leave
without pay. (Id.; Doc. # 27-1 at pp. 64-65; Doc. # 27-2 at Bessemer 00008). Plaintiff received
the December 7, 2012 Notice of Administrative Leave Without Pay from the PBJC and the
City’s Mayor, and was informed therein that she could apply with the Personnel Board to work
in dispatch or other positions. (Doc. # 27-1 at pp. 65-68; Doc. # 27-2 at Bessemer 00008-09).
She did not apply for any non-Grade 17 positions. (Doc. # 27-1 at pp. 68-69).
On January 2, 2013, both Dr. Staudinger and Dr. Johnson released Plaintiff back to work
with no restrictions. (Doc. # 27-1 at pp. 71-72, 75; Doc. # 27-2 at PBJC_HRG000015, Bessemer
00198). Plaintiff reported to the police department on January 2, 2013, and met with Chief
Rutledge. (Doc. # 27-1 at p. 77; Doc. # 27-3 at pp. 17-19). Chief Rutledge continued her
administrative leave to “take care of her health.” (Doc. # 27-3 at pp. 19-20). Plaintiff requested
that she be permitted to use her accrued time off while on leave, and the City granted that
request. (Id.; Doc # 27-3 at PBJC_HRG000016).
Chief Rutledge subsequently ordered Plaintiff to return to duty on March 9, 2013. (Doc. #
27-3 at PBJC_HRG000017; Doc. # 27-3 at pp. 22-26). Plaintiff acknowledged Chief Rutledge’s
order, but did not return to work on March 9. (Doc. # 27-1 at p. 85; Doc. # 27-2 at Bessemer
00203). Rather, she submitted a letter from Dr. Johnson expressing his opinion that Plaintiff “is

4

unable to return to patrol duty as a police officer” due to his concern about her ability to carry
thirty pounds of equipment, and in light of his instruction of no running. (Doc. # 27-2 at
Bessemer 00204; Doc. # 27-1 at p. 85-87). Dr. Johnson’s statement was the first documentation
the City received about Plaintiff’s ability to work since January 2, 2013. (Doc. # 27-3 at pp. 2930). Plaintiff also returned to Dr. Staudinger (as required by Personnel Board Rules) for a fitness
for duty exam. (Doc. # 27-1 at pp. 87-88). Dr. Staudinger observed that Plaintiff has
degenerative arthritis of the left knee, and opined that she “[c]annot perform the essential job
functions” of police officer. (Doc. # 27-2 at Bessemer 00205; Doc. # 27-1 at pp. 88-90).
Chief Rutledge issued to Plaintiff a Notice of Contemplated Disciplinary Action dated
March 27, 2013, which informed her disciplinary action was being contemplated against her for
violating Rule 12.2(o) of the Rules and Regulations of the PBJC due to her inability to perform
her essential job functions. (Doc. # 27-2 at Bessemer 0004). On April 1, 2013, the City held a
disciplinary hearing that Plaintiff attended with an attorney. (Doc. # 27-1 at pp. 91-96). Plaintiff
presented no written or oral response and no medical evidence suggesting that she could perform
the duties of her position. (Id.). Following the hearing, and upon Chief Rutledge’s
recommendation that Plaintiff’s employment be terminated, City Mayor Gulley issued an April
10, 2013 Notice of Employee Disciplinary Action terminating Plaintiff because she was no
longer able to perform the duties of her job as a police officer. (Doc. # 27-2 at Bessemer 0000102). Plaintiff has admitted she was not able to perform the duties of a patrol officer at the time of
her termination. (Doc. # 27-1 at p. 100). From September 10, 2012, until the time of her
termination, Plaintiff had not worked a single day on patrol. (Id. at pp. 97-100).
Plaintiff applied for disability retirement from the Retirement Systems of Alabama
(“RSA”) on January 24, 2014. (Doc. # 27-1 at p. 118; Doc. # 27-2 Bessemer 00212-19). In

5

support of her retirement application, Plaintiff provided a statement from her physician stating
that she was “totally incapacitated for further performance of his/her duty,” her disability was
permanent, and it was “unknown but doubtful” as to whether there were any accommodations
that could be made to allow her to continue her employment. (Doc. # 27-2 at Bessemer 0021415; Doc. # 27-1 at pp. 119-20). The Medical Board approved her application for disability
retirement. (Doc. # 27-1 at pp. 120-21; Doc. # 27-2 at Bessemer 00220). Plaintiff also filed for
Social Security disability benefits in 2013, but that application was denied. (Doc. # 27-7). In her
Social Security filing, Plaintiff asserted she had a disability onset date of December 5, 2012, and
was totally disabled from performing any substantial gainful activity. (Doc. # 27-7 at pp. 2, 13).
III.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).

The party asking for summary judgment always bears the initial responsibility of

informing the court of the basis for its motion and identifying those portions of the pleadings or
filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(c) requires the non-moving party to go
beyond the pleadings and -- by pointing to affidavits, or depositions, answers to interrogatories,
and/or admissions on file -- designate specific facts showing that there is a genuine issue for trial.
See id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts

6

and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub.
Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993). A dispute is genuine, “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the evidence is
merely colorable, or is not significantly probative, summary judgment may be granted. See id. at
249.
When faced with a “properly supported motion for summary judgment, [the non-moving
party] must come forward with specific factual evidence, presenting more than mere
allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson v.
Liberty Lobby, Inc., teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations
made in the complaint; instead, as the party bearing the burden of proof at trial, she must come
forward with at least some evidence to support each element essential to her case at trial. See
Anderson, 477 U.S. at 252. “[A] party opposing a properly supported motion for summary
judgment ‘may not rest upon the mere allegations or denials of [her] pleading, but . . . must set
forth specific facts showing that there is a genuine issue for trial.’” Id. at 248 (citations omitted).
Summary judgment is mandated “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., 477 U.S. at 322. “Summary judgment may be
granted if the non-moving party’s evidence is merely colorable or is not significantly probative.”
Sawyer v. Southwest Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (citing Anderson,
477 U.S. at 250-51).
“[A]t the summary judgment stage the judge’s function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue

7

for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents
a sufficient disagreement to require submission to the jury or whether it is so one-sided that one
party must prevail as a matter of law.” Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477
U.S. at 251-52); see also LaRoche v. Denny’s, Inc., 62 F. Supp. 2d 1366, 1371 (S.D. Fla. 1999)
(“The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a
motion for summary judgment.”).
IV.

Analysis
Defendant advances two arguments in support of its summary judgment motion. Its first

argument is twofold. It asserts that (1) Plaintiff cannot establish a prima facie case of race or
gender discrimination, and (2) the reasons articulated for her discharge are not pretextual, but
were legitimate and non-discriminatory. Defendant also argues that Plaintiff cannot establish a
prima facie case on her claim of disability discrimination. Again, this argument has two
components: Plaintiff (1) is not a qualified individual as defined by the ADA, and (2) even if
Plaintiff could establish otherwise, she has failed to show there were reasonable accommodations
that would allow her to fully perform her job duties. The court addresses these arguments and
Plaintiff’s claims below, in turn.
A.

Plaintiff Has Failed to Establish a Genuine Dispute of Material Fact with
Respect to Her Race/Gender Discrimination Claims

Plaintiff claims she was terminated because of her race and gender. Both race and gender
claims are governed by Title VII. An employee bringing a discrimination claim must generally
establish a prima facie case of discrimination using one of three methods: by presenting direct
evidence of discriminatory intent, presenting circumstantial evidence of discrimination by
satisfying the analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and
its progeny, or by introducing some other type of evidence raising an inference of discrimination.
8

Sanders v. City of Montgomery, 319 F. Supp. 2d 1296, 1311 (M.D. Ala. 2004) (citing Walker v.
NationsBank of Florida, N.A., 53 F.3d 1548, 1556 (11th Cir. 1995)). Because Plaintiff has not
presented any direct, statistical, or other circumstantial evidence of discrimination, the court
analyzes her claims under McDonnell Douglas. Under this analysis, Plaintiff bears the burden of
establishing a prima facie case of illegal discrimination. McDonnell Douglas, 411 U.S. at 802;
see also Walker, 53 F.3d at 1556 (applying McDonnell Douglas to sex discrimination claim).
The Eleventh Circuit has laid out the steps for establishing a prima facie case:
[Plaintiff] must show that: (1) [s]he is a member of a protected class; (2) [s]he
was qualified for the position; (3) [s]he suffered an adverse employment action;
and (4) [s]he was replaced by a person outside h[er] protected class or was treated
less favorably than a similarly-situated individual outside h[er] protected class.
Maynard v. Bd. of Regents of Div. of Univs. Of Fla. Dep’t of Educ. ex rel. Univ. of S. Fla., 342
F.3d 1281, 1289 (11th Cir. 2003).
If a plaintiff raises a presumption of discrimination by establishing a prima facie case, the
burden shifts to the defendant to articulate legitimate, nondiscriminatory reasons for the
challenged employment action. Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.
1997) (citing McDonnell Douglas, 411 U.S. at 802). “If [Defendant] carries its burden or
producing legitimate, nondiscriminatory reasons for its decision, the presumption of
discrimination created by the McDonnell Douglas framework ‘drops from the case.’” Id.
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981)). The burden then
shifts back to Plaintiff to present evidence that Defendant’s reasons are pretextual. See id. (citing
Burdine, 450 U.S. at 256; McDonnell Douglas, 411 U.S. at 804).
1.

Plaintiff Has Failed to Establish a Prima Facie Case of Discrimination

For purposes of this opinion, the court assumes Plaintiff has established that she is a
member of a protected class and suffered an adverse employment action via termination.
9

However, the court concludes that Plaintiff has failed to show that she was qualified for her
position. Moreover, even if Plaintiff could show she was qualified, she has not identified any
similarly situated comparators outside her protected groups who were treated more favorably.
The court addresses these failings, in turn.
a.

Plaintiff Has Not Shown She Was Qualified for the Position at Issue

Plaintiff has failed to show she was capable of performing the physical requirements of a
Grade 17 Police Officer. (See Doc. # 27-6 at Ex. B). Defendant (through Chief Rutledge) has
noted that an individual not qualified as a Grade 17 Police Officer would also not be qualified to
work in any special assignments either, and there is nothing in the Rule 56 record which refutes
that point. (Doc. # 27-4 at p. 2). In March 2013, Plaintiff’s physician, Dr. Johnson, expressed his
opinion that Plaintiff was unable to return to full patrol duty as a police officer—a Grade 17
position. 3 (Doc. # 27-2 at Bessemer 00204). (See also Doc. # 27-4 at p. 2 (“Regardless of his/her
particular assignment, each officer must first be qualified as a Grade 17 Police Officer.”); Doc. #
27-6 at Ex. B (Grade 17 requirements and positions); Doc. # 27-3 at pp. 43-45 (patrol officers,
desk officers, detectives, and other police officer positions require same minimum physical
response modes). On March 15, 2013, Dr. Staudinger also certified that Plaintiff could not
perform the essential job functions of a police officer. (Doc. # 27-2 at Bessemer 00205). Finally,
Plaintiff has conceded that she was unable to perform her essential duties as a patrol officer at
the time of her termination, and never worked a single day on patrol during the time period of
September 2012 through her termination. (Doc. # 27-1 at pp. 97-100). She therefore has not
shown she was qualified for a Grade 17 position.

3

Dr. Johnson eventually released Plaintiff to return to work, but with restrictions preventing her from
running or lifting more than 15-20 pounds on a regular basis. (Doc. # 27-2 at Bessemer 00204).

10

b.

Plaintiff Has Failed to Identify Similarly Situated Comparators
Outside the Protected Group Who Were Treated More Favorably

Even if Plaintiff could show she was qualified for the position of police officer (and, to
be sure, she has not), she has failed to establish that she was treated less favorably than any
similarly situated black officer and/or male officer. For both race and gender discrimination
claims, Plaintiff “and the employee she identifies as a comparator must be similarly situated in
‘all relevant respects.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004)
(quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). “The comparator must be
nearly identical to [Plaintiff] to prevent courts from second-guessing a reasonable decision by the
employer.” Id. (citing Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001)).
“If [Plaintiff] fails to show the existence of a similarly situated employee, summary judgment is
appropriate where no other evidence of discrimination is present.” Holifield, 115 F.3d at 1562
(citation omitted).
Plaintiff asserts there are six comparators who were treated more favorably than her:
Officers Richard Ferguson, Alex McGinnins, Herman Harris, and Justin Burmeister, Sergeant
Johnny Nunnally, and Chief Rutledge himself. (Doc. # 3 at ¶¶ 48-53). The court addresses each
one in turn.
Officer Ferguson is a white male assigned to the position of warrant officer. (Doc. # 27-4
at p. 3). He was assigned to that position before Chief Rutledge became the Chief of Police in
2003. (Id.). As a warrant officer, Ferguson serves warrants in the manner required by the specific
circumstances at hand. (Id. at pp. 3-4). He also may be called upon to assist other officers in
emergency situations. (Id. at p. 4). Warrant officer is a Grade 17 police officer position. (Id.).
“Officer Ferguson is not disabled and he has never informed [Chief Rutledge] that he has any
sort of disability that affects” his job performance. (Id.). He has never informed Chief Rutledge
11

that he cannot perform the physical demands of his job, and has never given Chief Rutledge any
reason to doubt that he can perform his job as a Grade 17 officer. (Id.). As discussed above,
Plaintiff is unable to perform the essential duties of a Grade 17 police officer. She simply is not
similarly situated to Ferguson.
Office McGinnis, a black male, was a qualified Grade 17 Police Officer assigned to a
patrol officer position until he retired January 1, 2013. (Doc. # 27-4 at p. 4). Plaintiff alleged that
McGinnis had cancer and was allowed to work in the jail for more than a year while recovering
from cancer surgery. (Doc. # 3 at ¶ 49). Chief Rutledge averred that he never assigned McGinnis
to work in the jail as any type of accommodation, and, to the Chief’s knowledge, McGinnis did
not have cancer and never informed him of any cancer or other disability, or any other issue that
affected his job performance. (Doc. # 27-4 at pp. 4-5). But even if Chief Rutledge is in error in
making that assertion, there is no evidence that McGinnis was at any point unable to do the job
in question. To the contrary, the evidence shows that Plaintiff could not perform the Grade 17
essential job requirements; in fact, she has conceded that she was unable to perform the essential
job functions of a patrol officer. (See Doc. # 27-1 at p. 100). She is not similarly situated to
Officer McGinnis.
Officer Harris, a black male, is assigned to work in the police department lobby and take
reports from citizens. (Doc. # 27-4 at p. 5). “Because Officer Harris is assigned to the department
lobby, he is regularly called to assist in combative situations that can arise during court,” and
may be called upon to assist other officers in an emergency situation. (Id.). He is qualified as a
Grade 17 Police Officer. (Id.). Although he had hip surgery in 2011, he was released to full duty
following it. (Id.). Chief Rutledge testified that he has never been informed that Harris cannot
perform the requisite Grade 17 physical demands, and has no reason to doubt that Harris can

12

perform his essential job duties. (Id. at pp. 5-6). The evidence demonstrates that Plaintiff cannot.
Thus, Harris is not a valid comparator.
Officer Burmeister, a white male, is currently a patrol officer, and is qualified as a Grade
17 Police Officer. (Doc. # 27-4 at p. 6). Plaintiff testified that when she was working at the jail,
Burmeister broke his finger “and something else” while effectuating an arrest and was allowed to
work dispatch during his recovery. (Doc. # 27-1 at p.105). Plaintiff was unaware whether
Burmeister had to take a fitness for duty exam, never saw his medical records, and does not
know if he applied for the dispatch job. (Id. at pp. 105-06). “It is the department’s policy to offer
light duty only to those employees who are injured on the job.” (Doc. # 27-4 at p. 3). The Rule
56 evidence demonstrates that Plaintiff’s knee issues were related to arthritis, not an injury
suffered at work, and, in any event, that she could not perform the essential job functions of a
police officer. (See, e.g., id. at pp. 29-33; Doc. # 27-2 at Bessemer 00178; Doc. # 27-2 at
Bessemer 00205; Doc. # 27-1 at pp. 88-90). Cf. also Lathem v. Dep’t of Children & Youth Servs.,
172 F.3d 786, 793 (11th Cir. 1999) (“[T]he different application of workplace rules does not
constitute illegal discrimination.”). Chief Rutledge noted that Burmeister has never given any
reason to doubt the Grade 17 qualifications, and nothing calls into question his fitness for duty.
(Doc. # 27-4 at p. 6). Thus, even if Burmeister had been temporarily assigned to dispatcher due
to a broken finger or some other work-related injury, he is still qualified for a Grade 17 position;
Plaintiff is not. Burmeister and Plaintiff are not “nearly identical” and therefore not similarly
situated. Wilson, 376 F.3d at 1091.
Finally, Sergeant Nunnally (a white male) and Chief Rutledge (a black male) are plainly
not valid comparators because they are not Grade 17 Police Officers. (See Doc. # 27-4 at pp. 67). Chief Rutledge is classified as a Grade 34 employee, and Sergeant Nunnally is classified as a

13

Grade 20 employee. (Id.). Although the demands of Grade 20 and Grade 34 positions are not set
forth in the Rule 56 record, these higher-grade positions clearly are not similar in “all relevant
respects” to a Grade 17 position. Wilson, 376 F.3d at 1091. Moreover, and in any event, Plaintiff
has neither presented nor seen any evidence showing that Sergeant Nunnally or Chief Rutledge
were unable to perform their essential job functions. (See Doc. # 27-1 at pp. 106-108). Defendant
has shown they were and are able to do so. 4 (See Doc. # 27-4 at pp. 6-7). Therefore, Plaintiff’s
Title VII claims fail as a matter of law because she has not established a prima facie case of race
or gender discrimination.
2.

Plaintiff Has Failed to Establish that the City’s Reason for
Terminating Her Is a Pretext For Discrimination

Plaintiff’s failure to establish a prima facie case is not the only reason her Title VII
claims fail. Even if she had met burden of establishing a prima facie case of discrimination (and,
to be clear, she has not), the City has articulated a legitimate, non-discriminatory reason for
terminating her. Thus, any presumption of discrimination “drops from the case,” Combs, 106
F.3d at 1528 (quoting Burdine, 450 U.S. at 256), and it is incumbent upon Plaintiff to show that
the City’s reasons are a pretext for discrimination.
Defendant’s stated grounds for discharging Plaintiff are that she was not capable of
performing essential job functions. (Doc. # 27-2 at Bessemer 00001). The Rule 56 evidence
supports that articulated reason. Plaintiff herself expressed concern in an email to Chief Rutledge
that she was a liability, not only to herself, but also to other officers and to the public, if she
could not fully perform her essential job functions due to her injury. (Doc. # 27-2 at Bessemer
00189). Her expressed concern was followed by written statements from both Dr. Staudinger and
Dr. Johnson that due to her injury, Plaintiff could not perform the essential job functions of a
4

Chief Rutledge had knee surgery and was released back to full duty by his physician afterwards. (Doc. #
27-4 at p. 7). Sergeant Nunnally retired in April 2006 and is since deceased. (Id. at pp. 6-7).

14

Grade 17 Police Officer. (Doc. # 27-2 at Bessemer 00204-05). Defendant has thus articulated a
legitimate, nondiscriminatory reason (safety) for discharge of Plaintiff. (See also Doc. # 27-6 at
Bessemer 00278 (PBJC Rule 12.1 provides that an employee may be dismissed “for cause,”
which includes under Rule 12.2(o) the “[i]nability to perform the essential functions of the job
with or without reasonable accommodation.”).
Because Defendant has stated a legitimate, nondiscriminatory reason for Plaintiff’s
termination, “[t]o survive summary judgment, Plaintiff must come forward with evidence that
Defendant’s articulated legitimate, nondiscriminatory reason is merely a pretext for unlawful
discrimination.” Nowlin v. Jones Intercable, Inc., 102 F. Supp. 2d 1364, 1371 (S.D. Ga. 2000)
(citing Burdine, 450 U.S. at 256); see also Combs, 106 F.3d at 1528; Diaz v. Transatlantic Bank,
367 F. App’x 93, 96-97 (11th Cir. 2010).
In order to show pretext, [Plaintiff] must “demonstrate that the proffered reason
was not the true reason for the employment decision. . . . [Plaintiff] may succeed
in this 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.”
Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Burdine,
450 U.S. at 256). “
In evaluating a summary judgment motion, “the district court must evaluate
whether the plaintiff has demonstrated such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.”
Jackson, 405 F.3d at 1289 (11th Cir. 2005) (quoting Combs, 106 F.3d at 1538) (change omitted).
Here, Plaintiff has failed to show that Defendant’s explanation for the decision to
terminate her was mere pretext for discrimination. She has presented “conclusory allegations of
discrimination, [but] without more, [those] are not sufficient to raise an inference of pretext or

15

intentional [race or sex] discrimination.” Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597
(11th Cir. 1987). Plaintiff admits that no one mentioned that she was terminated because of race,
gender, or any other reason other than her ability to perform essential job functions. (Doc. # 27-1
at pp. 97, 109-12). She has not advanced any evidence to suggest race was a factor in her
termination. It simply is not enough for her to feel that “certain people” were given more
favorable treatment than others or that she was not treated more favorably because she is not
black. (Id. at p. 109).
Likewise, Plaintiff has not presented substantial evidence suggesting that gender played
any role in her discharge. 5 As already explained, the persons with whom Plaintiff compares
herself are simply not valid comparators. Moreover, even if any of those males who were Grade
17 Police Officers were accommodated because of injury or illness, the Rule 56 record does not
suggest any of them (1) self-reported an inability to do their jobs, (2) submitted substantial
medical documentation that they were unable to do their jobs, or (3) applied for disability
benefits claiming they could no longer do their jobs. Again, Plaintiff is not similarly situated to
Ferguson, McGinnis, Harris, or Burmeister in “all relevant respects.” Wilson, 376 F.3d at 1091.
The same is true for Chief Rutledge and Nunnally, neither of whom were a Grade 17 Police
Officer.
Plaintiff has not demonstrated either that Defendant’s stated reasons for her termination
were not true reasons behind Defendant’s decision to terminate her, or that race or sex
discrimination played any role in the decision to terminate her employment. Therefore, even if
Plaintiff had established a prima facie case, she had failed to establish that the stated reasons for
5

Plaintiff believes female employees who do not participate in sexual activity with other officers are not
given favorable treatment. (Doc. # 27-1 at pp. 111-12). Yet, the only person Plaintiff claims requested a favor from
her was one Sergeant Edwards (who was not involved in the termination decision), and that was in 2007. (Id. at pp.
112-13). She admits that Chief Rutledge, Deputy Chief Roper, and Mayor Gulley (her immediate superiors at the
time) never requested sexual favors from her. (Id. at pp. 113-14).

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Defendant’s decision to terminate were pretextual. Therefore, Defendant’s Motion for Summary
Judgment on Plaintiff’s Title VII claims is due to be granted.
B.

Plaintiff Has Failed to Establish a Genuine Dispute of Material Fact
with Respect to Her ADA Discrimination Claim

Plaintiff also contends Defendant violated the ADA because it terminated her due to her
disability, and failed to provide a reasonable accommodation for her disability. The ADA
provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of
disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of discrimination under the
ADA, a plaintiff must show that she (1) has a disability; (2) is a qualified individual; and (3) was
subjected to unlawful discrimination because of her disability. Holbrook v. City of Alpharetta,
Ga., 112 F.3d 1522, 1526 (11th Cir. 1997) (citing Morisky v. Broward County, 80 F.3d 445, 447
(11th Cir.1996)).
1.

Plaintiff Has Failed to Establish She is a Qualified Individual

The term “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. For the purposes of this subchapter [of the ADA], consideration shall be
given to the employer’s judgment as to what functions of a job are essential, and
if an employer has prepared a written description before advertising or
interviewing applicants for the job, this description shall be considered evidence
of the essential functions of the job.
42 U.S.C. § 12111(8). “Accordingly, an ADA plaintiff ‘must show either that [s]he can perform
the essential functions of h[er] job without accommodation, or, failing that, show that [s]he can
perform the essential functions of h[er] job with a reasonable accommodation.” D’Angelo v.

17

ConAgra Foods, Inc., 422 F.3d 1220, 1229 (11th Cir. 2005) 6 (quoting Davis v. Fla. Power &
Light Co., 205 F.3d 1301, 1305 (11th Cir. 2000)).
If the individual “is unable to perform an essential function of h[er] . . . job, even
with an accommodation, [s]he is, by definition, not a “qualified individual” and,
therefore, not covered under the ADA. In other words, the ADA does not require
[the employer] to eliminate an essential function of [the plaintiff’s] job.”
Id. (changes in original). The ADA regulations provide in pertinent part that “essential functions
means the fundamental job duties of the employment positions the individual with a disability
holds or desires,” but “does not include the marginal functions of the position.” 29 C.F.R. §
1630.2(n)(1).
Here, because she asserts claims under the ADA, Plaintiff bears the burden of showing
she is a qualified individual. D’Angelo, 422 F.3d at 1229. She has failed to do so. Plaintiff has
conceded that she is unable to perform the essential job functions of a patrol officer—a Grade 17
position. (Doc. # 27-1 at p. 100). Dr. Johnson and Dr. Staudinger both concluded she is unable to
perform the essential job functions of a Grade 17 Police Officer. (See Doc. # 27-2 at Bessemer
00204-05). In addition, the restrictions Dr. Johnson suggested would not allow Plaintiff to
perform the essential Grade 17 Police Officer job requirements. (Compare Doc. # 27-2 at
Bessemer 00204 and Doc. # 27-6 at Ex. B).
Furthermore, Plaintiff applied for disability benefits from both the RSA and Social
Security Administration (i.e., SSDI Benefits). (Doc. # 27-1 at p. 122; Doc. # 27-2 at Bessemer
00212-20; Doc. # 27-7). The Supreme Court faced a similar situation in Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795 (1999), where an ADA plaintiff claimed to be qualified, but also
applied for SSDI. There, the ADA plaintiff had received SSDI benefits upon a determination that

6

The court recognizes that D’Angelo concerns the precursor term to the current version of 42 U.S.C. §
12111(8) (that is, “qualified individual with a disability”). A significant portion of the definition of that precursor
term remains unchanged.

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she was unable to work due to her disability. Cleveland, 526 U.S. at 799, 801-03. The Supreme
Court held that “despite the appearance of conflict that arises from the language of the two
statutes [the ADA and the Social Security Act], the two claims do not inherently conflict to the
point where courts should apply a special negative presumption.” Id. at 802. This is because, in
significant part and like here, “if an individual has merely applied for, but has not been awarded,
SDI benefits, any inconsistency in the theory of the claims is of the sort normally tolerated by
our legal system.” Id. at 805 (analogizing to the allowance under Federal Rule of Civil Procedure
8 of setting forth separate or alternative or hypothetical statements of a claim). However, the
Supreme Court observed, some SSDI claims may genuinely conflict with an ADA claim, and
still be subject to summary judgment. Id. at 805-806.
Here, Plaintiff’s statements in her SSDI and RSA applications for disability benefits,
including her physician’s acknowledgement in her RSA application that she is “totally
incapacitated for further performance of his/her duty” (Doc. # 27-2 at Bessemer 00214), and the
claim that she is “totally disabled from performing any substantial gainful activity” in her SSDI
application (Doc. # 27-7 at p. 16), negate her claim that she is a qualified individual under the
ADA here. It is axiomatic that an individual must first be qualified to be a Grade 17 Police
Officer before they can be assigned to patrol or any other Grade 17 assignment. (Doc. # 27-4 at
p. 2; Doc. # 27-6 at Ex. 2). Again, here, Plaintiff has submitted a sworn statement to RSA from
her physician stating that she could not perform her duties due to her disability, and that her
disability was permanent. (See Doc. # 27-2 at Bessemer 00214). She claimed she was “totally
disabled” in her SSDI application. (Doc. # 27-7 at p. 16). “[A]n ADA plaintiff cannot simply
ignore the apparent contradiction that arises out of the earlier SSDI total disability claim. Rather,
she must proffer a sufficient explanation.” Cleveland, 526 U.S. at 806. Plaintiff has not proffered

19

any explanation as to why, in light of the assertions made in her disability applications, she is
able to perform the essential job functions of a Grade 17 Police Officer with or without
reasonable accommodation. In other words, she has not provided an explanation as to why those
statements do not contradict her claim that she is a qualified individual under the ADA.
Therefore, Defendant is entitled to summary judgment because Plaintiff has failed to establish
that she is a qualified individual under the ADA.
2.

Plaintiff Has Failed to Identify a Reasonable Accommodation That
Would Allow Her to Perform Essential Functions of Her Job

Even if Plaintiff could establish that she is a qualified individual (and, to be clear, she has
not), in order to make out a prima facie case for a reasonable accommodation claim, Plaintiff
must also show that she was denied an accommodation that was reasonable and would have
allowed her to perform the essential functions of her job as a Grade 17 Police Officer. As the
ADA provides in relevant part, en employer “discriminate[s] against a qualified individual on the
basis of disability,” by:
not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate that the
accommodation would impose an undue hardship on the operation of the business
of such covered entity.
42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations include the following:
job restructuring, part-time or modified work schedules, reassignment to a vacant
position, acquisition or modification of equipment or devices, appropriate
adjustment or modifications of examinations, training materials or policies, the
provision of qualified readers or interpreters, and other similar accommodations.
42 U.S.C. § 12111(9)(B).
Plaintiff was temporarily assigned to be a dispatcher; however, Chief Rutledge was later
informed that he could not assign her to dispatch because it was outside the Grade 17

20

classification. (Doc. # 27-4 at p. 3). Plaintiff received notice of the PBJC Rules and was
informed she could apply with the Personnel Board to work in dispatch; she did not apply. (Id.;
Doc. # 27-1 at pp. 68-69; Doc. # 27-2 at Bessemer 00008). Plaintiff has argued she should be
reassigned to the position of detective, but a detective position is a Grade 17 position and
requires the same essential functions which Plaintiff admits she cannot perform. (See Doc. # 27-6
at Ex. B). Also, the detective position was not a vacant position (see Doc. # 27-4 at p. 2), and an
employer is not required to create a new position, fill a non-vacant positon, or bump another
employee from a position as accommodation under the ADA. See, e.g., Lucas v. W. W. Grainger,
Inc., 257 F.3d 1249, 1256 (11th Cir. 2001) (citations omitted); Holbrook, 112 F.3d at 1527-28.
Of note, in this case, Plaintiff received an accommodation. Defendant accommodated Plaintiff by
providing extended leaves of absence to allow her to recover from her injury. However, Plaintiff
was unable to make a recovery and has failed to identify any reasonable accommodation within
the Grade 17 Police Officer classification she could have been offered. Therefore, Defendant is
entitled to summary judgment because Plaintiff has failed to establish a prima facie case of
discrimination under the ADA.
V.

Conclusion
For all of these reasons, the court concludes that no question of material fact exists

regarding Plaintiff’s claims of discrimination under Title VII and the ADA, and Defendant is
entitled to judgment as a matter of law. Therefore, Defendant’s Motion (Doc. # 25) is due to be
granted. A separate order will be entered.
DONE and ORDERED this July 28, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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