Kirkland v. Southern Company Services Inc

Filing 25

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 3/8/16. (SAC )

FILED
2016 Mar-08 PM 03:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID KIRKLAND,
Plaintiff,
v.
SOUTHERN COMPANY SERVICES
INC.,
Defendant.

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CIVIL ACTION NO.
2:15-cv-1500-WMA

MEMORANDUM OPINION
In three previous published opinions, this court has done its
dead level best to explain to a skeptical and unhappy plaintiff
audience why they can no longer file “mixed-motive” cases that
involve claims brought under the Age Discrimination in Employment
Act (“ADEA”), or for retaliation under Title VII, or under the
Americans with Disabilities Act (“ADA”).

See Savage v. Secure

First Credit Union, 107 F. Supp. 3d 1212 (N.D. Ala. 2015), Thomas
v. Kamtek, Inc., --- F. Supp. 3d ----, 2015 WL 6503672 (N.D. Ala.
Oct. 28, 2015), and Dawson v. Wal-Mart Stores E., LP,

--- F. Supp.

3d ----, 2016 WL 212984 (N.D. Ala. Jan. 19, 2016).
A new issue is presented in the instant case, namely, whether
the concept of “but-for” and the acceleration of the demise of
“mixed-motive” cases it has caused, is equally applicable to suits
for retaliation brought under the Family and Medical Leave Act
(“FMLA”).

After the thoughts hereinafter expressed, this court

will respectfully decline to extend the reach of “but-for” to FMLA
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retaliation while acknowledging that the question is a very close
one.
In the case before the court, plaintiff, David Kirkland,
disagrees with the court’s earlier opinions, all of which address
the subject of “but-for” causation necessary for the pursuit of
certain federal employment discrimination claims.
At

a

preliminary

conference

held

on

January

5,

2016,

Kirkland’s counsel, as an officer of the court, told the court that
without discovery he could not intelligently and honestly determine
which, if any, of his client’s statutory theories of employer
liability for having terminated him could meet the “but-for” test,
but he was sure that he can find one that qualifies if given
reasonable discovery before having to decide.
Kirkland continued to quarrel with this court’s consistent
requirement that “but-for” allegations must be pled as well as
proven.

The court pointed out that it is not alone in requiring

the actual up-front allegation of “but-for.” See Vega v. Hempstead
Union

Free

Sch.

Dist.,

801

F.3d

72,

90-91

(2d

Cir.

2015).

Kirkland’s counsel assured the court that if allowed discovery he
would immediately amend Kirkland’s complaint insofar as it invokes
the ADA and/or the FMLA and allege that each of defendant’s
violations

of

the

said

Kirkland’s termination.

statutes

was

the

“but-for”

cause

of

Although it is semantically impossible to

mount more than one “but-for” claim in a case, the court made a

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Faustian bargain with Kirkland’s counsel to allow his proposed
amendment for the sake of preserving his position and consequently
to overrule any Rule 12(b)(6) motion, that is, if the insertion of
the magic words “but-for” would rectify all present defects in a
particular count, considered separately from every other claim or
count.
Defendant, Southern Company Services, Inc. (“Southern Co.”)
strongly opposed this bargain arguing that the pleading of “butfor” can occur in only one count because “but-for” means “sole”,
and plaintiff must choose his one and only “but-for” claim ab
initio.

The court acknowledged that it was plowing new ground in

its proposed agreement with Kirkland but made clear to Kirkland’s
and to Southern Co.’s counsel that on or before the summary
judgment deadline Kirkland must pick a single count as the “but
for” cause of his termination.

Kirkland’s counsel agreed to do

just that.
After the said preliminary conference, Kirkland filed his
promised amended complaint (Doc. 19) attempting to cure what the
court had suggested were shortcomings in his original complaint,
including the absence of “but-for” allegations.
On January 29, 2016, Southern Co. filed a motion to dismiss
Count Four and Count Six of the amended complaint on the grounds
that said counts are inconsistent with Savage and do not satisfy
the “but-for” causation requirement. (Doc. 20).

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Finally, on

February 2, 2016, Southern Co. filed an answer to the amended
complaint. (Doc. 23), containing as its first affirmative defense
that “[s]ome or all of the Complaint fails to state a claim upon
which relief can be granted.” (Doc. 23 at 21).

This constitutes a

Rule 12(b)(6) motion addressed to every count and must be ruled
upon before the case can proceed.
The court was probably wrong to make the unusual agreement it
made with Kirkland, but, as will hereafter become apparent, there
can be no ultimate harm done because there are fatal defects in
some counts that a “but-for” allegation would not salvage.

The

bargain will force Kirkland to pursue no more than one “but-for”
cause of action after the dispositive motion deadline. As stated
earlier, this case presents the following new question:
Does “but-for”
(“FMLA”)?

reach

the

Family

and

Medical

Leave

Act

Just this past term, the Supreme Court of the United States
remarked on its consistent construction and interwoven application
of

“but-for”

causation

principles

across

various

employment

discrimination statutes, expressing itself as follows:
The term “because of” appears frequently in
antidiscrimination laws. It typically imports, at a minimum,
the traditional standard of but-for causation. University of
Tex. Southwestern Medical Center v. Nassar, 570 U.S. ––––,
133 S.Ct. 2517, 186 L.Ed.2d 503 (2013). Title VII relaxes
this standard, however, to prohibit even making a protected
characteristic a “motivating factor” in an employment
decision. 42 U.S.C. § 2000e–2(m).

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E.E.O.C. v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028,
2032 (2015).

Following this juxtaposed construction of “but-for”

and “mixed-motive” causation across federal antidiscrimination
laws, this court has applied “but-for” causation to various ADA
claims.

The court will nevertheless decline to extend the reach

of the “but-for” concept to FMLA retaliation.

The court finds it

unnecessary and unwise to purport to resolve this as yet
unexplored issue, even though Southern Co. makes a good argument
for such an expansion.
COUNT ONE
In both his original and his amended complaint, Kirkland
alleges in Count One a failure by defendant to engage in the
interactive process provided by the ADA.

An allegation of

failure to engage in interactive process is not the functional
equivalent of denying a reasonable accommodation, the separate
subject of Count Two and the reason for the ADA.

It is not a

separate legal claim independently creating ADA liability.
Crutcher v. Mobile Hous. Bd., 2005 WL 2675207, at *12 (S.D. Ala.
Oct. 20, 2005) (relying on Lucas v. W.W. Grainger, Inc., 257 F.3d
1249, 1256, n.2 (11th Cir. 2001); see also Bunn v. Khoury
Enterprises, Inc., 753 F.3d 676, 683 (7th Cir. 2014) (quotes
omitted) (“there is no separate cause of action for a failure of
that interactive process . . . [b]ecause the interactive process
is not an end in itself”).
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“The regulations governing the ADA explain that an employer
may need ‘to initiate an informal, interactive process with the
individual with a disability in need of an accommodation’ to
identify the person's limitations and potential reasonable
accommodations that could overcome those limitations.” Spears v.
Creel, 607 F. App'x 943, 948 (11th Cir. 2015) (quoting 29 C.F.R.
§ 1630.2(o)(ii)(3)) (emphasis added).

The statute provides no

penalty for what the employer may or may not choose to do with
respect to negotiations prior to non-accommodation, and it would
constitute gross speculation to allow an inference that if an
attempt at conciliation had been undertaken, there would have
been no termination.

If Kirkland is expecting to ask a jury to

reach such a conclusion he is asking too much.
The pertinent agency regulation promulgated by the EEOC does
not and cannot create a separate cognizable cause of action.
Rather, it simply clarifies what constitutes a “reasonable
accommodation” under the ADA. 29 C.F.R. § 1630.2; see Regulations
To Implement the Equal Employment Provisions of the Americans
With Disabilities Act, as Amended, 76 FR 16978-01 (“These amended
regulations are necessary to implement fully the requirements of
the ADA Amendments Act's broader definition of ‘disability.’”).
At the court’s preliminary conference on January 5, 2016,
Kirkland’s counsel was unable to satisfy the court that Count One
is a separate, free-standing, viable claim.

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Furthermore,

Kirkland was unable to articulate a specific remedy available for
failure to conciliate.

In his amended complaint, Kirkland makes

no attempt to describe an express or an implicit remedy for Count
One. (Doc. 1 at 3-9; Doc. 22 at 3-9).

The remedy, if there is

one, is certainly not reinstatement to the job from which
Kirkland was separated.

The only possible remedy would be to

force the defendant to engage involuntarily in the conciliation
procedure by the issuance of an injunctive order that logically
would require all of the other five counts to be dismissed
without prejudice or otherwise administratively disposed of as
premature or potentially moot.
COUNT TWO
In his amended Count Two, Kirkland alleges failure to
accommodate in violation of the ADA. (Doc. 22 at 9-10). In an ADA
failure to accommodate claim, “[plaintiff] bears the burden of
showing not only that [the employer] failed to reasonably
accommodate his disability, but that, but for [the employer’s]
failure to accommodate his disability, he would not have been
terminated.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247,
1263 (11th Cir. 2007)(emphasis added).

This holding is straight-

forward and impossible to misunderstand.
Kirkland amended his ADA claims in Counts Three and Four to
include the fateful words “but-for,” but strangely did not so
amend his central ADA failure to accommodate claim brought in

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Count Two. (Doc. 1 at 9-10; Doc. 22 at 9-10).

In other words, as

to Count Two Kirkland consciously or unconsciously did not take
advantage of the unusual bargain he talked the court into.
Therefore, Count Two must be dismissed because Kirkland still
fails to allege the mandatory “but-for” causation for pursuing an
ADA claim of failure to accommodate.
COUNT THREE
In his amended Count Three, which charges disability
discrimination under the ADA, Kirkland includes the allegation
that “but for Plaintiff’s disability, Plaintiff would not have
been terminated.” (Doc. 22 at 10).

He therefore took full

advantage of his bargain as to Count Three.

This means that

contrary to the result in Count Two, amended Count Three survives
the Rule 12(b)(6) challenge.
COUNT FOUR
Amended Count Four complains of retaliation under the ADA.
Kirkland now includes multiple allegations of “but-for”
causation.

Specifically, Kirkland avers:

67. But for Plaintiff’s disability, Defendant would not
have retaliated against Plaintiff for seeking a reasonable
accommodation.
* * *
69. But for Plaintiff’s disability, Defendant would not
have retaliated against Plaintiff because he challenged the
disciplinary action Defendant implanted against him as a
result of his disability.

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(Doc. 22 at 11-12).

While amended Count Four is less than

perfect in its draftsmanship, it sufficiently complies with the
court’s instruction that “but-for” causation is a sine qua non
for ADA retaliation claims to entitle Kirkland to the benefit of
his bargain.
COUNT FIVE
Count Five is the first count brought under the FMLA.
“[T]he FMLA creates two types of claims: interference claims, in
which an employee asserts that his employer denied or otherwise
interfered with his substantive rights under the Act, see 29
U.S.C. § 2615(a)(1), and retaliation claims, in which an employee
asserts that his employer discriminated against him because he
engaged in activity protected by the Act, see 29 U.S.C. §
2615(a)(1) & (2); 29 C.F.R. § 825.220(c).” Strickland v. Water
Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206
(11th Cir. 2001) (emphasis added).

“To state a claim of

interference with a substantive right, an employee need only
demonstrate by a preponderance of the evidence that he was
entitled to the benefit denied.” Strickland, 239 F.3d at 1206-07.
“An employee need not “allege that his employer intended to deny
the right; the employer's motives are irrelevant.” Martin v.
Brevard Cty. Pub. Sch., 543 F.3d 1261, 1267 (11th Cir. 2008).
In amended Count Five, Kirkland alleges that Southern Co.
was an FMLA eligible employer, that he was approved for
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intermittent FMLA leave, and that Kirkland received write-ups and
eventual termination while on this intermittent FMLA leave. (Doc.
22 at 12-13).

Therefore, Count Five states a plausible claim for

relief for both types of conduct proscribed by 29 U.S.C. § 2615.
The word “because” in the provision of the statute creating
liability for FMLA retaliation is enough like the Title VII
retaliation language to justify the “but for” requirement in FMLA
retaliation cases.

The motion to dismiss Count Five will be

denied.
COUNT SIX
Kirkland amended Count Six claiming FMLA retaliation to
include the allegation that “[b]ut for Plaintiff’s FMLA use,
Defendant would not have retaliated against Plaintiff for
exercising his rights under the FMLA.” (Doc. 22 at 14).
At the conference on January 5, 2016, the court was
operating under the influence and the expression of the Seventh
Circuit that retaliation under the FMLA is a “because” cause of
action. Kauffman v. Fed. Exp. Corp., 426 F.3d 880, 884 (7th Cir.
2005).

The court still believes that when it is clearly faced

with the issue the Supreme Court will find that FMLA retaliation
claims require the allegation and proof that “but-for” the
retaliatory motive of the employer, the adverse employment action
would not have occurred.

In this belief, the court on January 5,

2016 promised to apply the retaliation doctrine employed in Title

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VII cases to this FMLA case, just as this court has applied “butfor” to ADA cases and ADEA cases.

The court, however, is no

longer as sanguine on the issue as it was on January 5, 2016,
realizing that the issue is still a toss-up in the Eleventh
Circuit. See Coleman v. Redmond Park Hosp., LLC, 589 F. App'x
436, 438-39 (11th Cir. 2014) ("we decline to address
[defendant’s] argument that we should require [plaintiff] to
prove that her FMLA leave was the "but-for" cause of its decision
not to rehire her"). Although Kirkland amended Count Six to
allege "but-for,” Count Six and Count Five will be looked at
again before Kirkland is forced to pick his one and only “butfor” count.

Hopefully, by the summary judgment deadline, the

FMLA “but-for” issue will have been definitively resolved by the
Eleventh Circuit or the Supreme Court.
CONCLUSION
For the reasons discussed above, the court by separate order
will grant defendant’s motion as to dismiss Counts One and Two
and will deny the motion as to Counts Three, Four, Five, and Six.

DONE this 8th day of March, 2016.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

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