Wehby v. Springer Equipment Company Inc

Filing 55

MEMORANDUM OPINION. Signed by Judge R David Proctor on 3/7/2017. (KAM)

FILED
2018 Mar-07 PM 04:19
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

THERESA L. WEHBY,
Plaintiff,
v.
SPRINGER EQUIPMENT COMPANY,
INC.,
Defendant.

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Case No.: 2:15-cv-01005-RDP

MEMORANDUM OPINION
This case is before the court on the Motion for Summary Judgment filed by Defendant
Springer Equipment Company, Inc. (“Defendant” or “Springer”). (Doc. # 45). The Motion
(Doc. # 45) has been fully briefed, and the parties have filed evidentiary submissions. (Docs.
# 45, 48, 51, 54). After careful review, and for the following reasons, the court finds that the
Motion (Doc. # 45) is due to be granted.
I.

Relevant Undisputed Facts1
Springer is a forklift and material handling company that sells, rents, and services

forklifts.2 (Doc. # 45 at ¶ 1). It employed Plaintiff Theresa Wehby (“Plaintiff” or “Wehby”) for

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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 “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).
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Instead of directly responding to Defendant’s undisputed facts in Plaintiff’s Response in Opposition to Defendant’s
Motion for Summary Judgment, Plaintiff included a footnote stating that she disputes Defendant’s undisputed
material facts and that her “Undisputed Facts will clearly demonstrate her disputes with Defendant[’s] facts.” (Doc.
# 48 at p. 2 n.1). However, Plaintiff’s undisputed facts do not “clearly demonstrate her disputes.” In fact, Plaintiff
does not once mention herself or that she was employed by Springer throughout her recitation of undisputed facts.

billing purposes from March 2003 through August 2014. (Docs. # 18 at ¶ 12; 45 at ¶ 2; 45-2 at
p. 65). Plaintiff has filed a claim against Springer, alleging that it violated the Rehabilitation
Act, 29 U.S.C. § 794, because the company failed to accommodate her request for a certain
parking place and, as a result, she suffered a knee injury in July 2014. (Docs. # 18 at p. 6-9; 45
at ¶ 3; 45-2 at p. 298-300; 45-3 at ¶ 9-11).
Prior to Wehby’s departure from Springer in August 2014, Springer entered into
government-related transactions, which involved the Federal Emergency Management Agency
(“FEMA”) of the U.S. Department of Homeland Security. (Docs. # 45 at ¶ 12; 45-4 at ¶ 13). In
April 2011, Springer entered into a procurement contract with FEMA to assist with disaster relief
efforts related to tornado damage in Tuscaloosa, Alabama. (Docs. # 45 at ¶ 7; 45-4 at ¶ 4; 51 at ¶
14; 51 at ¶ 14). Under that contract, FEMA leased equipment from Springer at standard rates
using Springer’s standard price list. (Docs. # 45 at ¶ 8; 45-4 at ¶ 5, 7-8). In 2005 or 2006,
Springer charged FEMA its standard rates for completed work for FEMA in connection with
Hurricane Katrina relief efforts. (Docs. # 45 at ¶ 10-11; 45-4 at ¶ 10-12).
Springer is also certified under the Small Business Administration (“SBA”) and is
considered a Small Business Concern (“SBC”) and a Woman-Owned Small Business Concern
(“WOBC”). (Docs. # 51 at ¶ 13-14; 51-14 at p.6; 54 at p. 10). Because of these statuses,
Springer has received protected procurement contract awards and has qualified for some setaside contract awards. (Docs. # 51 at ¶ 8, 15; 51-11). For instance, in November 2012, Springer
entered into a subcontracting agreement with Raytheon with the help of the SBA’s Subcontractor
Assistance Program.3 (Docs. # 51 at ¶ 24-25; 51-14).

(See id. at p. 2-12). Plaintiff’s format for presenting the facts of this case in her response (Doc. # 48) is not only
confusing but also is in violation of the court’s Initial Order (Doc. # 5 at p. 3-4).
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Defendant argues that Plaintiff has not provided evidence that Springer’s contract with Raytheon arose from the
Subcontractor Assistance Program. (Doc. # 54 at p. 10). In support of her contention that this contract was secured

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In its Motion for Summary Judgment, Defendant argues that Springer is not subject to the
Rehabilitation Act. (Doc. # 45). Plaintiff counters that Springer is subject to the Rehabilitation
Act because the company “availed itself of federal remedial programs.” (Doc. # 48 at p. 1).
Accordingly, this dispute centers on whether Defendant may be liable to Plaintiff under the
Rehabilitation Act.
II.

Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, 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 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. 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
and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub.
Educ. for Bibb Cnty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d
through the Subcontractor Assistance Program, Plaintiff has provided the court with Springer’s subcontracting
agreement with Raytheon and points to a paragraph in that agreement that references Section 8(d) of the Small
Business Act, which is codified at 15 U.S.C. § 637(d). (Docs. # 51 at ¶ 24; 51-14 at p. 8). Plaintiff asks the court to
use this reference to Section 8(d) to infer that this agreement with Raytheon was governed by the Subcontractor
Assistance Program. (Doc. # 51 at ¶ 24).

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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
teaches, under Rule 56(c) a plaintiff may not simply rest on his allegations made in the
complaint; instead, as the party bearing the burden of proof at trial, he must come forward with
at least some evidence to support each element essential to his 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 his 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. Sw. 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
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

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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.”).
III.

Analysis
Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual

with a disability in the United States . . . shall, solely by reason of her or his disability, be
excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a).
“To prove discrimination under the Act, a plaintiff must show that he or she: (1) is ‘handicapped’
within the meaning of the Act and relevant regulations, (2) is ‘otherwise qualified’ for the
position in question, (3) worked for a Program or activity that received federal financial
assistance; and (4) was adversely treated solely because of his or her handicap.” Jackson v.
Veterans Admin., 22 F.3d 277, 278 (11th Cir. 1994) (emphasis added). Here, Defendant argues
that summary judgment is due to be granted because it is not a recipient of federal financial
assistance. (Docs. # 45; 54). Plaintiff counters that Springer is a recipient of federal financial
assistance for two main reasons: (1) Springer availed itself to SBA certifications and, as a
certified entity, received procurement assistance and restricted contract awards and (2) the value
of Springer’s Tuscaloosa FEMA contract was doubled. (Doc. # 51). The court examines these
arguments, in turn.
“For a private corporate employer to be subject to § 504, either the corporation ‘as a
whole’ must receive federal financial assistance, or the geographically separate facility at which
the employee is employed must receive such federal assistance.” Jones v. Ala. Power Co., No.

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CV 94-PT-0094-S, 1995 WL 238338, at *18 (N.D. Ala. Jan. 3, 1995), aff’d, 77 F.3d 498 (11th
Cir. 1996) (quoting 29 U.S.C. § 794(b)(3)). Courts apply the ordinary meaning of the term
“federal financial assistance” because it is not defined in the Rehabilitation Act. Shotz v. Am.
Airlines, Inc., 323 F. Supp. 2d 1315, 1317 (S.D. Fla. 2004), aff’d, 420 F.3d 1332 (11th Cir.
2005). “The general rule is that ‘federal financial assistance’ is the payment or transfer of funds
as a subsidy or gift.” Mullins v. Crowell, 74 F. Supp. 2d 1067, 1135 (N.D. Ala. 1999), aff’d in
part, rev’d in part on other grounds, 228 F.3d 1305 (11th Cir. 2000); see Shotz, 323 F. Supp. 2d
at 1317-19 (holding that airlines that received federal funds under the Stabilization Act as
compensation for losses from terrorist attacks did not receive federal financial assistance).
Plaintiff’s argument that Springer is a recipient of federal financial assistance because it
has SBA certifications and received procurement and restricted contract awards, such as the
FEMA and Raytheon contracts, is unavailing. No sensible reading of the Rehabilitation Act or
case law interpreting the Act suggests that qualifying for SBA certifications, on its own, equates
to receipt of federal financial assistance. Cf. U.S. Dep’t of Transp. v. Paralyzed Veterans of Am.,
477 U.S. 597, 605 (1986) (“Congress limited the scope of § 504 to those who actually ‘receive’
federal financial assistance because it sought to impose § 504 coverage as a form of contractual
cost of the recipient’s agreement to accept the federal funds.”); Herman v. United Bhd. of
Carpenters & Joiners of Am., Local Union No. 971, 60 F.3d 1375, 1381 (9th Cir. 1995) (finding
that, although “certification is similar to licensing and . . . some federal licenses may . . . provide
benefits that are as valuable as direct financial assistance,” the receipt of a federal license and, in
turn, a federal certification “is insufficient to invoke application of the Act”); Lemmo v. Willson,
583 F. Supp. 557, 560 (D. Colo. 1984) (holding that a federal agency’s certification of the
defendant’s apprenticeship program did not constitute federal financial assistance). Similarly,

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courts in the Eleventh Circuit have “refuse[d] to extend the definition of ‘federal financial
assistance’ to include procurement contracts.” Jones, 1995 WL 238338, at *19; see Arline v.
Sch. Bd. of Nassau Cty., 772 F.2d 759, 762 (11th Cir. 1985), aff’d and remanded sub nom. Sch.
Bd. of Nassau Cty., Fla. v. Arline, 480 U.S. 273 (1987) (“We agree that when the federal
government makes payments for obligations incurred as a market participant such payments do
not constitute ‘federal assistance.’”).

Furthermore, the Department of Justice’s governing

regulations concerning § 504 explicitly exclude procurement contracts from the definition of
“federal financial assistance.”4 See 28 C.F.R. § 41.3(e).
Plaintiff’s other argument concerning the cost of and payment for Springer’s work with
FEMA also misses the mark. Specifically, Plaintiff alleges that FEMA’s “contract value was
doubled by the SBA because it was for a contract to an SBC in a major disaster area.” (Doc.
# 51 at ¶ 17-18).

In making this allegation, Plaintiff first highlights that FEMA awarded

Springer a contract totaling $34,984. (Doc. # 51-13). But Springer’s documented accounts
receivables related to the FEMA contract only total $15,769 (Doc. # 51-12). (Doc. # 51 at ¶ 17).

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Under the Department of Justice’s regulations, each agency is required to issue regulations (that are consistent with
the Department of Justice’s coordinating regulations) that implement § 504 and define its relevant terms. See 28
C.F.R. § 41.4; see also Moore v. Sun Bank of N. Fla., N.A., 923 F.2d 1423, 1431 (11th Cir. 1991). In defining
“federal financial assistance” under Title VI, the SBA includes the following:
(1) Grants and loans of Federal funds; (2) the grant or donation of Federal
property and interests in property; (3) the detail of Federal personnel; (4) the
sale and lease of, and the permission to use (on other than a casual or transient
basis), Federal property or any interest in such property without consideration,
or at a nominal consideration, or at a consideration which is reduced for the
purpose of assisting the recipient, or in recognition of the public interest to be
served by such sale or lease to the recipient; and (5) any Federal agreement,
arrangement, or other contract which has as one of its purposes the provision of
assistance.
13 C.F.R. § 112.2(b). Plaintiff argues that the SBA’s definition encompasses SBA’s policy of providing aid,
counsel, and assistance to SBCs and WOBCs. (Doc. # 51 at p. 15-16). However, the only aid, counsel, or assistance
that Plaintiff claims Springer received from the SBA was procurement assistance because it qualified as an SBC and
a WOBC. (Id.). As discussed above, qualifying for a federal certification and being awarded a procurement
contract does not equate to federal financial assistance under the Rehabilitation Act.

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Next, Plaintiff points to (and takes out of context) the language of 15 U.S.C. § 644(f)5 to
conclude that FEMA doubled its payment to Springer.6 (Doc. # 51 at ¶ 18).
In actuality (and contrary to Plaintiff’s legal argument), the government must meet
certain goals, or quotas, related to the number of procurement contracts awarded to SBCs, among
other SBA designations. See 15 U.S.C. § 644(g)(1). The plain language of § 644(f) allows an
agency to double the value of a contract awarded to an SBC “for purposes of determining
compliance with the goals for procurement contracts under subsection (g)(1)(A)” if the SBC is
located in a disaster area and the contract relates to work performed in the disaster area. 15
U.S.C. § 644(f)(3) (emphasis added). Sections 644(f) and (g) do not allow an agency to double
its payments to SBCs in disaster areas; rather, these sections allow an agency to more easily meet
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Section 644(f), which concerns contracting preference for SBCs in a major disaster area, provides the following:
(1) Definition
In this subsection, the term “disaster area” means the area for which the
President has declared a major disaster, during the period of the declaration.
(2) Contracting preference
An agency shall provide a contracting preference for a small business concern
located in a disaster area if the small business concern will perform the work
required under the contract in the disaster area.
(3) Credit for meeting contracting goals
If an agency awards a contract to a small business concern under the
circumstances described in paragraph (2), the value of the contract shall be
doubled for purposes of determining compliance with the goals for procurement
contracts under subsection (g)(1)(A).

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As Defendant mentions, Plaintiff incorrectly states that Springer’s accounts receivables amount ($15,769) is half of
the contract award amount ($34,984). (Doc. # 54 at p. 5). Therefore, Plaintiff’s doubling argument does not add up,
mathematically or logically.
Defendant provides an explanation for the discrepancy between Defendant’s FEMA accounts receivable amount and
the contract award, and the Rule 56 evidence shows that explanation is much more likely than Plaintiff’s nonsensical
reasoning and incorrect reading of 15 U.S.C. § 644. For procurement contracts, such as Springer’s FEMA contract,
“[t]he government allocates a budget known as a Prime Award and then the contractor bills for work as the work is
performed.” (Doc. # 54 at p. 5). “The excess funding is then ‘deobligated’ (zeroed out) to close out the purchaseorder in its entirety.” (Id.). Here, FEMA allocated an award with a budget of $34,984; however, Springer only
billed for $15,769. (Docs. # 51-12; 51-13; 54 at p. 5). Defendant’s rationale is consistent with the sworn testimony
of Theodore Springer, who is a co-owner of Springer. (Doc. # 51-2 at p. 33) (“And if I remember, the [FEMA]
work was probably around $19,000 based on an award showing $34,000. I think we [Springer] invoiced about twothirds of it.”). Furthermore, Plaintiff does not provide evidence that Defendant actually received the total $34,984
from the FEMA contract award amount.

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its federal goals for procurement contracts awarded to SBCs under certain circumstances related
to major disasters.
Ultimately, Plaintiff has not “present[ed] substantial evidence from which a jury could
conclude that defendant is a recipient of ‘federal financial assistance.’” Jones, 1995 WL 238338,
at *18. In fact, Plaintiff has not provided the court with any evidence that Springer received
monetary federal financial assistance (outside of “payments for obligations incurred as a market
participant,” which “do not constitute ‘federal assistance.’”). Arline, 772 F.2d at 762. And,
Plaintiff’s argument that certain non-cash benefits associated with SBA certifications, such as a
preference for the award of various contracts, qualify as federal financial assistance7 holds little
weight. See Herman, 60 F.3d at 1381 (finding that a federal certification did not constitute
federal financial assistance). Because there is no Rule 56 evidence that Defendant received
federal financial assistance during the time that it employed Plaintiff, Plaintiff has “fail[ed] to
make a showing sufficient to establish the existence of an element essential to” her
Rehabilitation Act claim, and summary judgment is due to be granted. Celotex Corp., 477 U.S.
at 322; see Jones, 1995 WL 238338, at *19.
IV.

Conclusion
For all of these reasons, the court concludes that Defendant’s Motion for Summary

Judgment is due to be granted. An Order consistent with this Memorandum Opinion will be
entered.
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In making this argument, Plaintiff cites Delmonte v. Department of Business and Professional Regulation, Division
of Alcoholic Beverages and Tobacco of State of Florida, 877 F. Supp. 1563 (S.D. Fla. 1995). (Doc. # 51 at p. 1415). The Delmonte court found that the training that defendant’s officers received from the Federal Bureau of
Investigation (“FBI”), the Drug Enforcement Agency, and the Department of Treasury “constituted receipt of
Federal financial assistance pursuant to § 504.” 877 F. Supp. at 1567. Notably, the court relied on two important
facts that significantly distinguish Delmonte from this case: (1) 28 C.F.R. § 41.3(e) expressly provides that
“[s]ervices of Federal personnel” constitute federal financial assistance and (2) the form used by Defendant to
nominate officers to the FBI National Academy “explicitly requests assurances that the State or local law
enforcement agency is in compliance with § 504.” Id. at 1566-67.

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DONE and ORDERED this March 7, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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