Jackson v. City of Birmingham, The
Filing
37
MEMORANDUM OPINION AND ORDER - Because a question of fact exists concerning the reasonableness of Mr. Jacksons request to take leave while his doctors adjusted his PTSD medication and because successful adjustment of his medication could have enabled Mr. Jackson to maintain the Citys regular work hours without accommodation, a question of fact exists concerning Mr. Jacksons status as a qualified individual under the ADA. For the reasons stated above, the Court denies the Citys motion for partial summary judgment. (Doc. 25 ). Signed by Judge Madeline Hughes Haikala on 3/6/2019. (KEK)
FILED
2019 Mar-06 PM 03:53
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ERIC JACKSON,
Plaintiff,
v.
THE CITY OF BIRMINGHAM,
Defendant.
}
}
}
}
}
}
}
}
}
Case No.: 2:16-cv-01349-MHH
MEMORANDUM OPINION AND ORDER
Plaintiff Eric Jackson is a member of the Army National Guard and a former
employee of the City of Birmingham. He worked for the City as a parking
enforcement officer from February 2012 until the City terminated his employment
in August 2014. While working for the City, Mr. Jackson was called to active duty
in Afghanistan. When he returned from his military service, Mr. Jackson suffered
from PTSD. Mr. Jackson’s PTSD made it difficult for him to report to work on
time or to complete full shifts. Mr. Jackson asked the City to modify his work
schedule to give his doctor time to regulate his PTSD medication. The City did not
grant Mr. Jackson’s request for an accommodation, and the City terminated Mr.
Jackson’s employment for violating the City’s attendance policy.
Mr. Jackson contends that the City violated the Uniformed Services
Employment and Reemployment Rights Act or USERRA by classifying him as a
probationary employee when he returned from his deployment, subjecting him to
discipline, and ultimately terminating his employment. Mr. Jackson also contends
that the City violated the Americans with Disabilities Act or ADA by failing to
accommodate his PTSD and by terminating his employment because of his
disability.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the City has
asked the Court to enter judgment in its favor on the following issues: (1) whether
the City violated USERRA by requiring Mr. Jackson to complete a probationary
training period when he returned from military leave, and (2) whether Mr. Jackson
is a qualified individual under the ADA. For the reasons explained below, the
Court finds that material questions of fact exist, and the City is not entitled to
judgment as a matter of law on these issues. 1
I.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a). To demonstrate that there is a genuine
1
As part of his USERRA claim, Mr. Jackson contends that the City discriminated against him by
disciplining him and terminating his employment. The City’s motion for partial summary
judgment does not address this aspect of Mr. Jackson’s USERRA claim. In addition, the City’s
motion for partial summary judgment does not address Mr. Jackson’s Title VII gender
discrimination or ADA retaliation claims.
2
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” FED. R. CIV.
P. 56(c)(1)(A). “The court need consider only the cited materials, but it may
consider other materials in the record.” FED. R. CIV. P. 56(c)(3).
When considering a summary judgment motion, a district court cannot make
credibility determinations regarding the evidence; that is the work of jurors.
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “A litigant’s selfserving statements based on personal knowledge or observation can defeat
summary judgment.” United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018);
see Feliciano, 707 F.3d at 1252 (“To be sure, Feliciano’s sworn statements are
self-serving, but that alone does not permit us to disregard them at the summary
judgment stage.”). When deciding a motion for summary judgment, a district court
must view the evidence in the record in the light most favorable to the non-moving
party and draw reasonable inferences in favor of the non-moving party. Bivens v.
Bank of America, N.A., 868 F.3d 915, 918 (11th Cir. 2017); see Feliciano, 707
3
F.3d at 1252. Accordingly, the Court presents the evidence in the record in the
light most favorable to Mr. Jackson because he is the non-movant.
II.
RELEVANT FACTS
On January 17, 2012, the City hired Mr. Jackson as a parking enforcement
officer. (Doc. 20-1, p. 18). A parking enforcement officer issues parking citations
to motor vehicle operators who violate the City’s parking ordinances. (Doc. 23-3,
p. 1).
According to the job description for the parking enforcement officer
position, a parking enforcement officer performs the following essential functions:
Patrols assigned area either by foot or vehicle; issues parking
citations; informs violators of relevant parking laws and regulations.
Assists the public by giving directions and informing them of
available parking facilities; may assist the public in locating vehicles.
Operates and programs hand held computer units and printers used to
issue citations. Performs routine preventative maintenance on threewheel vehicles. Assists the flow of traffic by asking drivers who are
double parked, parked in loading zones, handicapped spaces or no
parking zones to move to designated areas. Reports all damaged
parking meters, street markers and signs.
(Doc. 23-3). One parking enforcement officer monitors each of the City’s parking
zones.
(Doc. 20-1, p. 20, tp. 78).
The regular work schedule for parking
enforcement officers is Monday through Friday, 8:00 a.m. until 5:00 p.m. (Doc.
20-1, p. 23; Doc. 21-1, p. 14).
The parking enforcement officer position is a classified position. (Doc. 221, p. 16). Pursuant to Section 2.13 of the Supplemental Personnel Policies and
Procedures for the City of Birmingham, “[c]lassified employees shall serve a
4
probationary period of twelve months.” (Doc. 20-9, p. 6). According to City
policy, “[c]lassified employees accrue sick leave or vacation leave during their
probationary period however they may not use sick leave or vacation leave during
their probationary period,” unless their probationary period relates to a promotion.
(Doc. 20-9, p. 6).
Mr. Jackson’s direct supervisor was Parking Enforcement Officer Supervisor
Jose Martinez. Mr. Martinez reported to Chief of Traffic Operations Will
Goodman. Mr. Goodman reported to Traffic Engineer Greg Dawkins. (Doc. 20-1,
p. 18, p. 69; Doc. 21-1, pp. 4-5; Doc. 22-1, p. 7; Doc. 23-1, pp. 5, 8-9; Doc. 23-2,
p. 1).
During Mr. Jackson’s first week of employment, senior parking enforcement
officer Tiwana Bailey accompanied Mr. Jackson on his routes and provided him
with training on how to use a hand-held set, how to operate the vehicle or buggy
that parking enforcement officers drive, and how to write tickets. (Doc. 20-1, p.
20; Doc. 23-24, p. 5; Doc. 31-1, ¶ 2). During the second and third weeks of his
employment, Mr. Jackson worked by himself in the field without supervision.
(Doc. 20-1, pp. 22-23; Doc. 31-1, ¶ 2).
Mr. Jackson did not receive direct training on parking ordinances. Instead,
his supervisors gave him the book containing the ordinances and told him to read
the ordinances. (Doc. 20-1, p. 20). On February 6, 2012, Mr. Jackson attended an
5
orientation class on the City’s general employment policies. (Doc. 20-1, p. 19;
Doc. 31-1, ¶ 2).
On February 7, 2012, less than one month after the City hired him, Mr.
Jackson received a letter from the Alabama Army National Guard to provide to the
City. The letter stated that later that month, Mr. Jackson would be deployed to
Afghanistan for one year. (Doc. 20-14). Mr. Jackson worked until February 9,
2012, and he reported to active duty on February 13, 2012. (Doc. 20-12; Doc. 2013). Mr. Jackson completed less than one month of his 12-month probationary
training period before he left for active military service. (Doc. 20-1, p. 22).
On June 14, 2012, while Mr. Jackson was on military leave, the City’s
Office of Personnel sent him a letter concerning his pay and benefits. (Doc. 2019). The letter states, in relevant part:
As you may know under the City of Birmingham’s Military Leave
Resolution 392-08 (MLR 392-08) we will continue your pay and
benefits while deployed to a “War Zone”, or DOD specified area of
Hostile Fire (HF) or Imminent Danger (ID). Your entitlements under
this resolution are set to expire effective February 16, 2013. If for
some reason you are maintained on active service past this date please
provide this office with qualifying orders prior to the expiration of
your current entitlement. In addition, if you are released from service
prior to this date it is your responsibility to notify this office so that
we may adjust your entitlements.
We must also inform you that the MLR 392-08 is only a resolution
and subject to termination by the Mayor/City Coun[cil] at their
discretion. As a reminder continuation of your pay and benefits past
30 days are not mandated under the Uniformed Services Employment
and Reemployment Rights Act of 1994 (USERRA).
6
...
Again thank you for your SERVICE! YOUR COMMITMENT
KNOWS NO BOUNDS, NEITHER SHOULD OURS!
...
(Doc. 20-19) (emphasis in June 14, 2012 letter).
The City’s Military Leave
Resolution 392-08 states:
any permanent employee of the City of Birmingham called to duty in
defense of country to be deployed in a military war zone will receive
full salary as well as benefits for the entire time of their deployment.
Upon which time that employee returns and is available to resume
employment by the City of Birmingham, that employee’s job or
position will be available.
(Doc. 21-3, p. 1) (italics omitted).
Resolution 392-08 defines “permanent
employee” as a City of Birmingham “employee who has completed a mandatory
twelve (12) month probationary period.” (Doc. 21-3, p. 1).
In January 2013, Mr. Jackson returned from Afghanistan. (Doc. 20-1, p.
24). The National Guard extended Mr. Jackson’s military service for another year
and assigned him to the Warrior Transition Battalion in Ft. Gordon, Georgia. The
Warrior Transition Battalion is known as the Wounded Warrior Program. (Doc.
20-15; Doc. 20-16; Doc. 20-17; Doc. 20-18; Doc. 31-1, ¶ 3). While participating
in the program, Mr. Jackson received treatment for PTSD. (Doc. 31-1, ¶ 3).
7
In January of 2014, the City gave Mr. Jackson a merit pay increase based on
the amount of time that he had been employed with the City. (Doc. 23-1, p. 20;
Doc. 23-4).
On February 18, 2014, Mr. Goodman emailed Mr. Dawkins, Mr. Martinez,
and Assistant Traffic Engineer Sedrick Rutledge. (Doc. 23-5, p. 1). Mr. Goodman
attached to the email pictures of Mr. Jackson. (Doc. 23-5, pp. 2-9). The email
states: “Thought these pics of Parking Officer Eric Jackson would be of interest.
As far as I know he is still on Traffic Engineering budget receiving his normal pay.
Serious abuse of taxpayer dollars. Also see his CD under (Google….. Visionary
Alter Ego).” (Doc. 23-5, p. 1).
On February 24, 2014, the Army honorably discharged Mr. Jackson from
service for medical reasons. (Doc. 20-1, p. 25; Doc. 20-20). After his discharge,
Mr. Jackson received a disability rating because of his PTSD diagnosis. (Sealed
Doc. 27-3, p. 8; Doc. 31-1, ¶ 5).
On March 10, 2014, in an email to Mr. Goodman, the payroll coordinator for
the City’s traffic engineering department explained that Mr. Jackson had 90 days
from the date of his discharge from the Army to report to work, so Mr. Jackson
would return to work in May 2014. (Doc. 22-11). Mr. Goodman responded, “[n]ot
cool with me at all. However, someone else calls the shots on these situations.
8
He’s milking it! If he can handle all of his other affairs he should be able to come
to work.” (Doc. 22-11).
In a message dated March 11, 2014, Mr. Dawkins explained to Mr.
Goodman that under federal law, the City must give Mr. Jackson 90 days from the
end of his military service to report to work. (Doc. 23-6, p. 1). Mr. Goodman
responded:
I know the policy allows Mr. Jackson to report 90 days after the end
of military duty. I just have a problem with this whole flagrant abuse
of the system. Any one who can conduct a business, record rap
videos and handle all of the other situations that he is managing has to
be somewhat sound. I wish Mrs. Polk would look into this whole
policy of paying personnel a full salary while they’re in a military
status. I think we’re creating a loop hole for abusers.
(Doc. 23-7, p. 1). Mr. Goodman continued to exchange emails with Mr. Dawkins
about the rules and policies governing Mr. Jackson’s return to work, and Mr.
Goodman wrote that he would like to deny Mr. Jackson vacation “because we need
him back asap.” (Doc. 22-12, p. 1).
Consistent with arrangements that he made with the City, Mr. Jackson
returned to work on May 27, 2014. (Doc. 20-1, p. 27; Doc. 20-24; Doc. 20-21;
Doc. 20-22; Doc. 31-1, ¶ 4). When he returned to work, Mr. Jackson did not
consider himself a probationary employee because he had been employed with the
City for more than two years, and based on the City’s June 14, 2012 letter, he
received benefits to which only permanent, non-probationary employees were
9
entitled. (Doc. 31-1, ¶ 4; see also Doc. 20-19; Doc. 21-3, p. 1). For the first week
he was back on duty, a supervisor provided instructions to Mr. Jackson, but Mr.
Jackson worked in the field independently. (Doc. 31-1, ¶ 4).
When he returned to work, Mr. Jackson was able to issue citations, patrol his
assigned zone, and communicate with drivers. (Doc. 31-1, ¶ 6.b-e). Although he
could perform his job functions, the medication that Mr. Jackson took to treat his
PTSD caused sleeplessness which, in turn, caused Mr. Jackson, once he finally fell
asleep, to sleep through alarms. (Doc. 31-1, ¶¶ 5, 6). Mr. Jackson’s sleeplessness
also made him “more easily triggered by loud noises and confrontation,” and “loud
noises or argumentative people increased [his] stress level.” (Doc. 31-1, ¶¶ 5, 6.d).
The effects of Mr. Jackson’s PTSD medication caused him to miss work. Between
May 27, 2014 and August 6, 2014, Mr. Jackson was absent 8 times; he arrived to
work late 11 times, and he left work early 7 times. (Doc. 20-1, pp. 27, 29-33, 37;
Doc. 20-24; Doc. 20-27). According to Mr. Jackson, when he was absent or late,
he “always called or texted Jose Martinez or Tiwana Bailey in advance,” and when
he left work early, he “always obtained permission from a supervisor first.” (Doc.
31-1, ¶ 9).
When Mr. Jackson began having attendance issues, he talked to Mr.
Martinez and Mr. Goodman “about what [the City] could do to help him out.”
(Doc. 22-1, p. 16).
Mr. Jackson explained that he had PTSD, and he “had
10
problems with loud noises, popping sounds, [and] crowded areas.” (Doc. 22-1, p.
16, tp. 64). Mr. Jackson also told Mr. Martinez and Mr. Goodman that “he had
problems with confrontations” (Doc. 22-1, p. 16, tp. 64), and “he was having a
hard time dealing with the public getting in his face.” (Doc. 21-1, p. 9, tp. 36).
Mr. Jackson requested “more frequent breaks” and “flexibility with [his]
schedule to allow [him] and [his] doctor to adjust” his PTSD medication. (Doc.
31-1, ¶ 5). Mr. Jackson testified that he needed a “flexible” start time because the
medications that he was taking were “constantly being switched out to see . . .
which one worked better,” and “it was always a different result after every time.”
(Doc. 20-1, p. 41). According to Mr. Jackson, had the City granted his request for
an accommodation, his “attendance would have ultimately conformed to the
traditional work schedule for a Parking Enforcement Officer,” and his “stress
would have been reduced because it would have allowed [his] doctors time to
adjust [his] treatment regime[n].” (Doc. 31-1, ¶¶ 6.a., 6.d.).
In July 2014, Mr. Jackson again requested flexibility with his schedule while
his doctor adjusted his medication. (Doc. 31-1, ¶ 7). Mr. Jackson asked that the
City permit him to use leave for this purpose. (Doc. 31-1, ¶ 7). Mr. Martinez
indicated that he would speak to Mr. Goodman about the requests for
accommodation, but Mr. Jackson did not receive a response. (Doc. 20-1, p. 41).
11
The City did not evaluate whether Mr. Jackson’s requests for accommodation were
reasonable. (Doc. 21-1, p. 10, tp. 38; Doc. 23-1, pp. 19, 32; Doc. 31-1, ¶ 7).
On July 3, 2014, Mr. Martinez emailed Mr. Goodman to tell him that Mr.
Jackson called in sick. (Doc. 21-10, p. 1). Mr. Goodman responded: “Okay.
Thanks [this is] his way of cordially saying he does not want the job. Let’s go
ahead and get our documentation prepared so that we can turn it over to Mr.
Dawkins for dismissal.” (Doc. 21-10, p. 1). On July 7, 2014, Mr. Martinez
emailed some notes on Mr. Jackson to Mr. Goodman and explained his (Mr.
Martinez’s) “concern [that Mr. Jackson] may have personnel [sic] issues outside of
work that he may have to resolve to be able to perform the job safely.” (Doc. 2110, p. 1).2
On July 10, 2014, Charles Pinkney from the City’s human resources
department emailed Mr. Dawkins about a meeting between Mr. Pinkney and Mr.
Martinez concerning Mr. Jackson. (Doc. 23-9). Mr. Pinkney’s email states:
Please see highlighted below.
This is information in reference from my meeting earlier this morning
with Mr. Martinez, in reference to Mr. Eric B. Jackson. Mr. Jackson
has just returned from his mobilization and so he is protected from
discharge, only in the exception [if] it is for ‘CAUSE.’
2
Mr. Martinez attached to the email his notes about Mr. Jackson’s progress. The notes do not
appear in text of the email, and the Court has not located the substance of the notes in the record.
12
Please ensure all matters of reprimand are handled in accordance with
City of Birmingham and Personnel Board of Jefferson County rules
and regulations, and in accordance with that listed below.
As I don’t personally handle matters dealing with suspensions for
COB employees, I have cc’d Human Resources Director: Peggy Polk
and Dept. Dir. Debra Crook.
Any questions in regards to disciplinary actions can be addressed to
them.
This information is for your guidance to ensure we remain in
compliance with USERRA for active Guard and Reserve personnel.
(Doc. 23-9, p. 1).3
Also on July 10, 2014, Mr. Goodman presented Mr. Jackson with two
written reprimands for absences associated with tardiness and absences on June 5,
2014; June 12, 2014; June 13, 2014; June 20, 2014; June 23, 2014; June 25, 2014;
June 27, 2014; June 30, 2014; July 3, 2014; and July 8, 2014. (Doc. 20-32, pp. 14). The City placed Mr. Jackson on a corrective observation period through July
10, 2015. (Doc. 20-32, pp. 2, 4). Mr. Martinez and Mr. Goodman signed the
reprimands. Mr. Jackson did not sign the reprimands. (Doc. 20-32, pp. 2, 4).
After receiving the reprimands, Mr. Jackson renewed his request for
accommodation, telling Mr. Goodman that he needed flexibility with his schedule.
(Doc. 20-1, pp. 41-42). Mr. Jackson does not remember what Mr. Goodman said
in response to the particular request, but during one discussion about Mr. Jackson’s
3
The information that Mr. Pinkney “listed below” is the text of § 4316 of USERRA. (Doc. 23-9,
pp. 1-2).
13
PTSD, Mr. Goodman told Mr. Jackson that he could “tell when it’s real” in
reference to Mr. Jackson’s statements about his PTSD and medication causing him
to be late. (Doc. 20-1, p. 42; Doc. 20-1, pp. 54-55).
On July 14 or 15, 2014, Mr. Jackson gave the City a letter from Dr. Barbara
Turner. (Doc. 20-1, pp. 39-40; Doc. 31-1, ¶ 7). Dr. Turner is a VA psychiatrist
who treated Mr. Jackson for PTSD. (Doc. 20-1, p. 39). Dr. Turner’s letter is dated
July 14, 2014.
(Doc. 20-1, p. 39).
In the letter, Dr. Turner confirmed Mr.
Jackson’s PTSD diagnosis. Dr. Turner stated that she recommended that Mr.
Jackson take FMLA leave, but Mr. Jackson did not believe that FMLA leave was
necessary because he had made the City aware of his PTSD diagnosis “and may
have to report off at times due to his current treatment plan.” (Sealed Doc. 27-1, p.
2). Dr. Turner also explained that she recommended increasing the dosage of
certain medication, but Mr. Jackson did not agree because he had “already missed
time from work due to sedation and oversleeping.” (Sealed Doc. 27-1, p. 2). Dr.
Turner invited the City to contact her with questions. (Sealed Doc. 27-1, p. 2).
About a week after Mr. Jackson gave the City Dr. Turner’s letter, Mr. Jackson
again tried to follow up with Mr. Martinez to determine whether Mr. Goodman had
responded to his (Mr. Jackson’s) requests for accommodation, but Mr. Jackson did
not receive a response. (Doc. 20-1, p. 42; Doc. 31-1, ¶ 7).
14
In response to the letter from Dr. Turner, Mr. Dawkins removed Mr. Jackson
from the street, assigned him to a desk, and told him to “read the [City’s parking]
ordinances until we tell you otherwise.” (Doc. 20-1, p. 58; Doc. 31-1, ¶ 8). The
City required Mr. Jackson to undergo a “fitness for duty” psychological
examination at the University of Alabama at Birmingham. (Doc. 23-1, p. 35; Doc.
31-1, ¶ 8). On July 22, 2014, Mr. Jackson completed a psychological assessment
online at UAB. (Doc. 20-1, pp. 43-44). Mr. Jackson did not meet with a doctor
during this visit, and there was no interactive dialogue with a medical provider.
(Doc. 20-1, p. 44).
Also on July 22, 2014, Mr. Jackson received another reprimand for clocking
out on July 17, 2014, without his supervisor’s approval. (Doc. 20-33, pp. 7-8).
Under a section of the report titled “Future Conditions of Employment,” the
reprimand states:
If you do not report to work or report off to your Supervisor before
your designated shift begins, you will be disciplined for lateness or
AWOL in accordance with the provisions of the Mayor[’]s
Administrative Directive WW-1, dated 10-27-75.
If you accumulate 5 lateness[e]s or 3 AWOLs in one 12 month[]
period, you will be dismissed.
(Doc. 20-33, p. 8).
On July 29, 2014, Mr. Dawkins sent Mr. Jackson a Notice of Determination
Hearing. (Doc. 23-19, p. 1). The notice explained that the City contemplated
15
personnel action against Mr. Jackson that could result in suspension, demotion, or
dismissal. (Doc. 23-19, p. 1). In the notice, the City indicated that Mr. Jackson
had violated a number of Jefferson County Personnel Board rules and regulations
for missing work, clocking in late, and leaving work early during July 2014. (Doc.
23-19, pp. 2-3). The City set a determination hearing for August 6, 2014, during
which Mr. Jackson could respond to the City’s statement. (Doc. 23-19, p. 1). The
City later postponed the hearing until August 8, 2014. (Doc. 20-1, p. 37).
On July 30, 2014, the City issued three additional written reprimands to Mr.
Jackson for absences or tardiness. (Doc. 20-33, pp. 1-6). Around this time, Mr.
Goodman said during a meeting with Mr. Martinez, Ms. Bailey, and Mr. Jackson
either “I don’t want to deal with him” or “I don’t want to deal with that[.]” (Doc.
20-1, p. 55). The remarks concerned Mr. Jackson’s PTSD and Mr. Jackson’s
employment. (Doc. 20-1, p. 55).
On August 9, 2014, one day after the determination hearing, Mr. Dawkins
issued a final decision terminating Mr. Jackson’s employment effective August 11,
2014. (Doc. 20-37, p. 1). Before his termination, Mr. Jackson was “doing pretty
good” in his job. (Doc. 23-24, p. 8, tp. 30). Although he had made some mistakes
in writing tickets when he started, he had improved and reduced the mistakes, and
he had become one of the City’s top performers. (Doc. 20-1, p. 55, tp. 217; Doc.
23-24, p. 8, tpp. 30-31). Mr. Martinez believed that Mr. Jackson was physically
16
and mentally able to work. (Doc. 21-1, p. 26). Ms. Bailey did not observe Mr.
Jackson having problems performing his job. (Doc. 23-24, p. 8).
On October 22, 2014, Dr. Adrian Thurstin completed Mr. Jackson’s
neuropsychological report based on the July 22, 2014 “fitness for duty”
assessment.
Dr. Thurstin confirmed a PTSD diagnosis.
Dr. Thurstin
recommended intense, consistent management of the PTSD and a review of Mr.
Jackson’s medications because the current regimen was not effective, and Dr.
Thurstin recommended that Mr. Jackson be allowed to take breaks every 90
minutes to reduce stress. (Sealed Doc. 27-22, pp. 2-3). No one at the City
discussed Dr. Thurstin’s report with Mr. Jackson. (Doc. 20-1, p. 44). Based on the
October 22, 2014 date, the record suggests that the City terminated Mr. Jackson
before receiving the completed fitness for duty report.
III.
ANALYSIS
A.
Estoppel
Before examining the merits of the parties’ positions, the Court addresses
the City’s contention that Mr. Jackson is judicially estopped from asserting his
USERRA claim or arguing that he is qualified individual with a disability under
the ADA because he (Mr. Jackson) applied for and received social security
disability benefits.
17
“[P]ursuit, and receipt, of [social security disability] benefits does not
automatically estop the recipient from pursuing an ADA claim.” Cleveland v.
Policy Management Systems Corp., 526 U.S. 795, 797 (1999). Still, “an ADA
plaintiff cannot simply ignore [his disability] contention that []he was too disabled
to work. . . . [He] must explain why that [disability] contention is consistent with
[his] ADA claim that []he could ‘perform the essential functions’ of h[is] previous
job, at least with ‘reasonable accommodation.’” Cleveland, 526 U.S. at 797. “[A]
plaintiff’s sworn assertion in an application for disability benefits that []he is,
‘unable to work’ will appear to negate an essential element of h[is] ADA case,”
unless the plaintiff offers a “sufficient explanation” for the contradiction.
Cleveland, 526 U.S. at 806.
In his declaration, Mr. Jackson states that he “was not asked during the
[social security disability] process if [he] could work with an accommodation.”
(Doc. 31-1, ¶ 10). Mr. Jackson maintains that “even though [he] was disabled, if
provided a reasonable accommodation, [he] could work.” (Doc. 31-1, ¶ 10). Like
Mr. Jackson, the plaintiff in Cleveland explained that she represented to the Social
Security Administration that she was totally disabled “in a forum which does not
consider the effect that reasonable workplace accommodations would have on the
ability to work.” Cleveland, 526 U.S. at 807. On the record before the Court, the
City is not entitled to summary judgment based on a judicial estoppel argument.
18
See Talavera v. School Bd. of Palm Beach County, 129 F.3d 1214, 1220 (11th Cir.
1997) (“A certification of total disability on an SSD application does mean that the
applicant cannot perform the essential functions of her job without reasonable
accommodation. It does not necessarily mean that the applicant cannot perform
the essential functions of her job with reasonable accommodation.”) (emphasis in
Talavera).
The ADA estoppel analysis applies equally to Mr. Jackson’s USERRA
claim. In support of its argument that Mr. Jackson is judicially and equitably
estopped from asserting his USERRA claim, the City cites one non-binding
opinion in which a district court held that a plaintiff was judicially estopped from
bringing USERRA claims because the plaintiff had represented to the VA in
previous litigation that he was disabled. (Doc. 26, pp. 22-23) (citing Brown v.
Con-Way Freight, Inc., 2016 WL 861210, at *6-8 (N.D. Ill. Mar. 7, 2016)). In
Brown, the plaintiff had represented that “his injuries were permanent and that he
was not going to recover.” Brown, 2016 WL 816120, at *6. The City has
presented no evidence in this case that Mr. Jackson represented that he had
permanent injuries that would prevent him from performing his job. Rather, Mr.
Jackson contends that he can work with an accommodation. Therefore, the Court
is not persuaded by the rationale in Brown. See Scudder v. Dolgencorp, LLC, 900
F.3d 1000, 1007 (8th Cir. 2018) (“Under USERRA, an employer must make
19
‘reasonable efforts ... to qualify’ a returning service member for employment,
which includes making ‘reasonable efforts ... to accommodate ... a disability
incurred in, or aggravated during, such service.’ 38 U.S.C. § 4313(a).
Accordingly, a service member who is considered ‘disabled’ under the Social
Security Act could still be qualified for work and therefore entitled to
reemployment under USERRA. Cf. Cleveland, 526 U.S. at 803, 119 S. Ct. 1597.”).
B.
USERRA
“Congress enacted USERRA to prohibit employment discrimination on the
basis of military service as well as to provide prompt reemployment to those
individuals who engage in non-career service in the military.”
Coffman v.
Chugach Support Services, Inc., 411 F.3d 1231, 1234 (11th Cir. 2005) (citing 38
U.S.C. § 4301 (2002)). Under USERRA, a veteran “does not step back on the
seniority escalator at the point he stepped off. He steps back on at the precise point
he would have occupied had he kept his position continuously during the war.”
Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 284-85 (1946). An
employer must return an employee to a position “which the person would have
been employed if the continuous employment of such person with the employer
had not been interrupted by [a period of service in the uniformed services], or a
position of like seniority, status and pay, the duties of which the person is qualified
to perform[.]” 38 U.S.C. § 4313(a)(2)(A). This statutory obligation commonly is
20
known as the “escalator principle.” 20 C.F.R. § 1002.192 (“In all cases, the
starting point for determining the proper reemployment position is the escalator
position, which is the job position that the employee would have attained if his or
her continuous employment had not been interrupted due to uniformed service.”). 4
“USERRA rights are not diminished because an employee holds a
temporary, part-time, probationary, or seasonal employment position.” 20 C.F.R. §
1002.41. Mr. Jackson contends that the City violated USERRA because the City
reinstated his probationary period when he returned from military service.
According to Mr. Jackson, but for his military service, he would have been
employed with the City long enough to qualify as a permanent employee, and the
City’s insistence that he complete his probationary period is inconsistent with the
escalator principle. The City contends that it was within its rights to reinstate Mr.
Jackson as a probationary employee because Mr. Jackson did not complete the
required training for the parking enforcement officer position before he was
deployed.
Under USERRA, an employer may extend a probationary training period to
account for time that an employee is on military leave. See Gipson v. Cochran, 90
F. Supp. 3d 1285, 1299 (S.D. Ala. 2015) (Because “USERRA was [] never
4
“[A]lthough ‘USERRA cannot put the employee in a better position than if he or she had
remained in the civilian employment position,’ 20 C.F.R. § 1002.42(c) (emphasis added), the Act
‘must be broadly construed in favor of its military beneficiaries.’ Maxfield v. Cintas Corp. No. 2,
427 F.3d 544, 551 (8th Cir. 2005) (quoting Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312–13
(4th Cir. 2001)).” Mace v. Willis, 897 F.3d 926, 928 (8th Cir. 2018).
21
intended to allow a person to be exempt from necessary and important training for
a job . . . extending a training period, in part, to make up for absences due to
military leave, does not violate USERRA.”); Paxton v. City of Montebello, 712 F.
Supp. 2d 1007, 1013 (C.D. Cal. 2010) (“As a general matter, a probationary
employee can be required to complete his probationary period following his return
from military leave.”).
But the Department of Labor’s regulations governing
USERRA instruct that the probationary period must be “a bona fide period of
observation and evaluation.” See 70 Fed. Reg. 75246, 75272, 2005 WL 3451172.
The regulations state:
if an employee who left employment for military service was in the
midst of a bona fide apprenticeship program or probationary period
that required actual training and/or observation in the positions, rather
than merely time served in the position, the employee should be
allowed to complete the apprenticeship or probationary period
following reemployment.
70 Fed. Reg. 75246, 75272, 2005 WL 3451172. Relying on Gipson and Paxton,
the City submits that the parking enforcement officer “probationary period is used
to both train and evaluate [parking enforcement officers] for the first year of their
employment, and [Mr.] Jackson cannot show a reasonable certainty or high
probability that he would have satisfactorily completed the probationary period had
he continuously remained employed.” (Doc. 26, p. 25).
In Gipson, the sheriff’s department where the plaintiff worked required a
sheriff’s deputy “to go through a ‘Working Test Period’ or probation for one year.”
22
Gipson, 90 F. Supp. 3d at 1288. The record demonstrated that the department used
the training period to both train and evaluate new deputies:
[a] deputy initially goes through Field Training and is assigned a Field
Training Officer (FTO). The FTO documents the deputy’s work
performance and training on a daily and weekly basis. Field Training
is scheduled to last 8 weeks and at such time the new deputy is
deemed able to perform the job solo and is assigned to a squad. Once
assigned to a squad, the new deputy is evaluated quarterly with the
expectation of completing the Working Test Period within a year of
being hired. If the Working Test Period is successfully completed, the
deputy then becomes a permanent deputy.
Gipson, 90 F. Supp. 3d at 1288-89. During her one year probationary period, the
plaintiff was absent from duty periodically for military training and ultimately
went on military leave. Gipson, 90 F. Supp. 3d at 1289-90. The plaintiff claimed
that when she returned to the sheriff’s department, the department violated
USERRA by extending the one year Working Test Period because of her military
service.
Gipson, 90 F. Supp. 3d at 1288.
The district court found that the
department’s extension of the probationary period was not an adverse action under
USERRA because “the extension did not alter in any way [the deputy’s]
employment status.” Gipson, 90 F. Supp. 3d at 1299 (emphasis omitted). There
was no question in Gipson that the training period was a legitimate period of
instruction and monitoring.
In Paxton, the city of Montebello, California hired the plaintiffs as police
officer trainees and soon classified the plaintiffs as probationary police officers.
23
Paxton, 712 F. Supp. 2d at 1008. The California Army National Guard activated
the plaintiffs for military service, and approximately eight months into their
probationary status, the plaintiffs were deployed to Iraq. Paxton, 712 F. Supp. 2d
at 1008-09. The plaintiffs argued that under USERRA’s escalator principle, their
probationary period should have ended while they were deployed and that the City
violated USERRA when it reinstated the plaintiffs as probationary police officers
when they returned from military leave. Paxton, 712 F. Supp. 2d at 1013. Citing
the Department of Labor’s regulations indicating a returning service member must
complete a period of probation if the “probationary period is a bona fide period of
observation and evaluation,” the district court found that the City’s actions did not
run afoul of USERRA’s protections. Paxton, 712 F. Supp. 2d at 1013.
The facts in Gipson and Paxton are unlike the facts of this case. Here, Mr.
Jackson has submitted evidence from which a reasonable jury could decide that the
City’s one year probationary period was not a bona fide period of observation and
training and that Mr. Jackson completed his actual training as a parking
enforcement officer and his initial period of evaluation before he was deployed.
The City’s 12-month probationary period applied to all classified positions
across the City.
The probationary period was not tailored for the parking
enforcement officer position. (Doc. 20-9, p. 6). And unlike the probationary
periods in Gipson and Paxton, the evidence here suggests that a parking
24
enforcement officer could satisfy the City’s 12-month probationary period merely
through time served in the position.
The evidence viewed in the light most favorable to Mr. Jackson
demonstrates that after his initial week as a parking enforcement officer, he worked
without regular supervision until he was deployed. (Doc. 20-1, pp. 22-23; Doc.
31-1, ¶ 2). According to Mr. Martinez, the City usually would spend two or three
weeks training a parking enforcement officer before the officer would patrol a
parking zone independently, but a senior parking enforcement officer would
“keep[] tabs,” “check[] up on,” and “shadow[]” parking enforcement officers
“every once in a while” after the initial training period. (Doc. 21-1, p. 13). But
Mr. Jackson has explained that other than his initial week of training, when he
returned from military leave, for one week, a supervisor again provided direction
“on how to write parking tickets, traffic ordinances, and patrol routes,” but then he
(Mr. Jackson) patrolled his parking zones “without observation.” (Doc. 31-1, ¶ 4).
In addition, Mr. Jackson has presented evidence from which jurors could
conclude that the City did not consider the 12-month probationary period a bona
fide period of observation and training. First, while Mr. Jackson was on military
leave, the City awarded Mr. Jackson pay and benefits consistent with the City’s
Military Leave Resolution 392-08. (Doc. 20-19). The City provides benefits
under Military Leave Resolution 392-08 only to permanent employees who have
25
completed their probationary period. (Doc. 21-1, p. 16; Doc. 21-3, p. 1). Second,
while Mr. Jackson was on military leave, the City awarded Mr. Jackson a merit pay
increase based on the time that Mr. Jackson had been employed with the City.
(Doc. 23-1, p. 20; Doc. 23-4).
Thus, the evidence concerning the nature of the City’s 12-month
probationary period for new parking enforcement officers is disputed. Therefore,
the City is not entitled to judgment as a matter of law on Mr. Jackson’s claim that
the City violated USERRA by extending his probationary period.
B.
Qualified Individual Under ADA
To prevail on his ADA failure to accommodate and discriminatory
termination claims, Mr. Jackson must establish that he is a “qualified individual”
under the statute. 42 U.S.C. § 12112(a) (Under the ADA, an employer may not
discriminate against a “qualified individual on the basis of disability.”); see Jarvela
v. Crete Carrier Corp., 776 F.3d 822, 828 (11th Cir. 2015) (To establish a prima
facie case of discriminatory termination under the ADA, “a plaintiff must show
three things: (1) he is disabled; (2) he is a qualified individual; and (3) he suffered
unlawful discrimination because of his disability.”); Holly v. Clairson Industries,
L.L.C., 492 F.3d 1247, 1262 (11th Cir. 2007) (“An employer’s failure to
reasonably accommodate a disabled individual itself constitutes discrimination
26
under the ADA, so long as that individual is ‘otherwise qualified,’ and unless the
employer can show undue hardship.”) (emphasis omitted).
The ADA defines a “qualified individual” as an “individual who, with or
without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
“The plaintiff bears the burden of identifying an accommodation and showing that
the accommodation would allow him to perform the essential functions of the job
in question.” Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017); see
Medearis v. CVS Pharmacy, 64 Fed. Appx. 891, 895 (11th Cir. 2016) (“An
accommodation is reasonable and necessary under the ADA ‘only if it enables the
employee to perform the essential functions of the job.’”) (quoting Holly, 492 F.3d
at 1256).
With respect to the essential functions of a position, “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); see also Jarvela, 776 F.3d at 829
(“[A] written job description is considered evidence of the essential functions of a
particular position.”). According to the EEOC’s regulations implementing the
ADA, a court also may consider: “(1) the amount of time spent on the job
27
performing the function, (2) the consequences of not requiring the incumbent to
perform the function, (3) the terms of the collective bargaining agreement, (4) the
work experience of past incumbents in the job, and (5) the current work experience
of incumbents in similar jobs.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220,
1230 (11th Cir. 2005) (internal quotation marks and citation omitted).
According to the City’s parking enforcement officer job description, at a
minimum, the essential functions of the position include: issuing parking citations;
patrolling assigned zone by foot and/or vehicle; communicating and interacting
with the public; informing violators of parking laws and regulations; providing
information to members of the public regarding directions and parking facilities;
and asking drivers to move their vehicles to designated areas. (See Doc. 23-3).
Citing the regulation that permits the Court to consider “[t]he consequences of not
requiring the incumbent to perform the function,” the City maintains that “regular
and consistent attendance is uniquely essential” for a parking enforcement officer.
(Doc. 26, p. 13) (citing 29 C.F.R. § 1630.2(n)(3)(iv)); see also Garrison v. City of
Tallahassee, 664 Fed. Appx. 823, 826 (11th Cir. 2016) (recognizing that the
district court properly gave substantial weight to the employer’s judgment that
“physical presence in the office during regular business hours was an essential
function” of the plaintiff’s customer service position which required her to
communicate with internal representatives and external vendors on site and to
28
conduct training sessions in the office). According to supervisors in the City’s
traffic department, the parking enforcement officer work schedule of 8:00 a.m. to
5:00 p.m. Monday through Friday is based on the time that most businesses are
open. (Doc. 22-1, p. 17). One parking enforcement officer monitors one of the
City’s nine parking zones. (Doc. 20-1, p. 20; Doc. 21-1, p. 6; Doc. 22-1, p. 18). If
a parking enforcement officer is unable to monitor his or her zone, “that area will
just go unchecked.” (Doc. 23-1, p. 12).
Mr. Jackson does not argue that regular and consistent attendance is not an
essential function of the parking officer position, and Mr. Jackson has not offered
evidence to create a question of fact with respect to the City’s judgment that
attendance at work is an essential function of the parking enforcement officer
position. (See generally Doc. 32, pp. 14-15). Instead, Mr. Jackson submits that
“this was where [his] request for an accommodation came into play.” (Doc. 32, p.
15).
The evidence establishes that Mr. Jackson could perform the essential
physical functions of the parking enforcement officer position while he was at
work. (See Doc. 23-24, p. 8; Doc. 31-1, ¶ 6). Mr. Jackson’s supervisors believed
that he was physically and mentally able to work, and they did not observe that Mr.
Jackson had trouble performing his job. (Doc. 21-1, p. 26; Doc. 23-24, p. 8). To
the extent that Mr. Jackson had difficulty arriving on time or completing full shifts
29
because of sleeplessness or because of the anxiety and stress that he experienced
when he encountered loud noises, flashing lights, or conflict with citizens, Mr.
Jackson requested that the City modify his work schedule in two ways. First, Mr.
Jackson requested a flexible start time. (Doc. 20-1, p. 41). Second, Mr. Jackson
asked that the City permit him to use “leave time” while his doctors regulated his
PTSD medication. (Doc. 31-1, ¶ 7). 5
With respect to the request for leeway with his start time, Mr. Jackson
testified that he needed a “flexible” start time because the medications that he was
taking were “constantly being switched out to see. . . which one worked better,”
and “it was always a different result after every time” that Mr. Jackson took a
different medication. (Doc. 20-1, p. 41). Mr. Jackson did not request to work at a
particular time each day because he “couldn’t pin down the time where I knew I
would be in the office.” (Doc. 20-1, p. 41). Mr. Jackson testified that a later start
time would “offset the unpredictability of the sleeping meds,” and that he could
report to work “with the proper amount of sleep to be able to function and carry on
throughout the day the way [he was] supposed to.” (Doc. 20-1, p. 42). No medical
provider indicated that Mr. Jackson needed a flexible work schedule, and Mr.
5
Mr. Jackson also requested more frequent and longer breaks and time off for doctor’s
appointments. (Doc. 20-1, pp. 40-41). Mr. Jackson testified that the City allowed him multiple
breaks; that no one limited the number of restroom breaks he could take; and that the City gave
him time off for his doctor’s appointments. (Doc. 20-1, pp. 40, 41). The only request that the
City did not accommodate was Mr. Jackson’s request for a modified work schedule. (Doc. 20-1,
p. 41).
30
Jackson did not provide the City documentation from a doctor stating that he
needed a flexible start time. (Doc. 20-1, p. 42).
Under the ADA, a reasonable accommodation may include “part time or
modified work schedules.” 42 U.S.C. § 12111(9)(B). In this case, Mr. Jackson’s
request for a modified work schedule is not a reasonable accommodation because
in essence, Mr. Jackson asked to arrive at work when he wished, with no consistent
start time or predictability in his schedule. In Jackson v. Veterans Administration,
22 F.3d 277 (11th Cir. 1994), the Eleventh Circuit held that a housekeeping aide at
a Veterans Administration hospital was not a qualified individual when he “was
absent numerous times within the first few months of his probationary employment
on a sporadic, unpredictable basis,” and as a result, he “could not fulfill the
essential function of . . . being present on the job.” 22 F.3d at 279. In reaching its
conclusion,
the
Eleventh
Circuit
noted
that
the
plaintiff’s
requested
accommodation of swapping days off with other employees, delays in his shift start
times, and deferring more physically demanding tasks until another day:
[did] not address the heart of the problem: the unpredictable nature of
[plaintiff’s] absences. There is no way to accommodate this aspect of
his absences. Requiring the VA to accommodate such absences
would place upon the agency the burden of making last-minute
provisions for [his] work to be done by someone else.
Id. at 279.
31
Concerning his request for a flexible start time, Mr. Jackson testified: “I
couldn’t pin down the time where I knew I could be in the office,” and “all I could
say is leeway. It’s kind of an open – it’s nothing that can be predicted.” (Doc. 201, pp. 41, 42). Given the unpredictable nature of Mr. Jackson’s request for a
flexible start time, Mr. Jackson has not demonstrated that his request for a flexible
start time constitutes a reasonable accommodation. See Jackson, 22 F.3d at 279;
see also Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000) (“A request to
arrive at work at any time, without reprimand, would in essence require Appellee
to change the essential functions of Appellant’s job, and thus is not a request for a
reasonable accommodation.”). 6
The reasonableness of Mr. Jackson’s request to take leave while his doctors
adjusted his PTSD medication is a closer call.7 “[A] leave of absence might be a
reasonable accommodation in some cases.” Wood v. Green, 323 F.3d 1309, 1314
(11th Cir. 2003); Appendix to 29 C.F.R. § 1630.2(o) (“[A]ccommodations could
include permitting the use of accrued paid leave or providing additional unpaid
leave for necessary treatment.”).
The Eleventh Circuit first addressed the issue of the reasonableness of a
request for a leave of absence in Duckett v. Dunlop Tire Corp., 120 F.3d 1222
6
In his brief, Mr. Jackson notes that the City has provided a modified work schedule to another
parking enforcement officer, but the modified schedule was predictable. (Doc. 32, p. 15).
7
The City did not address this requested accommodation in its briefs.
32
(11th Cir. 1997). In a recent unpublished opinion, the Court of Appeals explained
Duckett’s holding and rationale:
[In Duckett,] we held that an employer was not required to allow an
employee to stay on medical leave under a salary continuation
program. See id. at 1225–26. Relying on the Fourth Circuit’s
decision in Myers v. Hose, 50 F.3d 278, 282 (4th Cir. 1995), we
explained that an employer does not violate the ADA “by refusing to
grant an employee a period of time in which to cure his disabilities
where the employee sets no temporal limit on the advocated grace
period, urging only that he deserves sufficient time to ameliorate his
conditions.” 120 F.3d at 1225–26 (brackets and internal quotation
marks omitted). We quoted with approval the following reasoning of
the Myers court regarding leave as a reasonable accommodation:
Significantly, these provisions [42 U.S.C. § 12111(8); 45
C.F.R. § 1232.3(i)] contain no reference to a person’s
future ability to perform the essential functions of his
position. To the contrary, they are formulated entirely in
the present tense, framing the precise issue as to whether
an individual “can” (not “will be able to”) perform the
job with reasonable accommodations. Nothing in the text
of the reasonable accommodation provision requires an
employer to wait for an indefinite period for an
accommodation to achieve its intended effect. Rather,
reasonable accommodation is by its terms most logically
construed as that which, presently, or in the immediate
future, enables the employee to perform the essential
functions of the job in question.
Id. (quoting Myers, 50 F.3d at 283).
Because the plaintiff in Duckett “had already been on medical leave
for ten months ... and had no way of knowing when his doctor would
allow him to return to work in any capacity,” we concluded that his
requested accommodation of additional medical leave was not
reasonable. See id. at 1226. Nevertheless, we noted that more
compelling facts might lead to a different result, such as “if an
33
employee was terminated immediately upon becoming disabled
without a chance to use his leave to recover.” Id. n.2.
Billups v. Emerald Coast Utilities Authority, 714 Fed. Appx. 929, 934 (11th Cir.
2017).
Following Duckett, in Wood, the Eleventh Circuit held that an employee’s
request for a leave of absence to recover from cluster headaches was not
reasonable.
[In Wood, w]e explained that Duckett had held “that an
accommodation is unreasonable if it does not allow someone to
perform his or her job duties in the present or in the immediate
future.” Id. at 1313. Thus, “a leave of absence might be a reasonable
accommodation in some cases” if it would allow an employee to
continue work “in the immediate future.” Id. at 1314. But an
accommodation is unreasonable if it would only allow an employee to
“work at some uncertain point in the future.” Id.
Based on these standards, we held that Wood’s requested
accommodation was not reasonable because he was essentially
requesting indefinite leave. Id. Even with a leave of absence, “he
could be stricken with another cluster headache soon after his return
and require another indefinite leave of absence.” Id. Thus, Wood was
not requesting an accommodation that would have allowed him to
continue to work presently, “but rather, in the future—at some
indefinite time.” Id. We also distinguished Duckett’s “parenthetical[ ]
not[ation] that more compelling facts might lead to a different result,”
stating that Wood had not been “terminated immediately upon
becoming disabled,” but rather “had been granted years of
discretionary leave and had been on a discretionary leave for over one
month at the time of his termination.” Id.
Billups, 714 Fed. Appx. at 935.
34
Applying Duckett and Wood, in Billups, the Court of Appeals held that an
employee’s request to extend unpaid leave was unreasonable. Billups, 714 Fed.
Appx. at 935-36. In Billups, the plaintiff took 12 weeks of FMLA leave to recover
from a shoulder strain and a related surgery. Billups, 714 Fed. Appx. at 931.
Because the plaintiff’s injury was job-related, the employer’s policy permitted the
plaintiff to take 26 weeks of leave instead of 12. Billups, 714 Fed. Appx. at 931.
Near the end of the 26-week period, the employer sent a notice to the plaintiff
informing him “of the policy that employees who suffer an on-the-job injury
generally must return to work within six months or retire, resign, or be
terminated.” Billups, 714 Fed. Appx. at 932. The notice stated that the plaintiff
could attend a “predetermination” hearing. Billups, 714 Fed. Appx. at 932. The
plaintiff attended the hearing, and the employer gave him additional time to
“obtain a more definitive statement of a return date from his physician or physical
therapist.” Billups, 714 Fed. Appx. at 932.
The plaintiff submitted a letter from his physical therapist which stated that
the plaintiff was progressing through therapy. The note explained that the plaintiff
could return to work when he completed his physical therapy sessions, but only the
plaintiff’s doctor “could clear him to return to work.” Billups, 714 Fed. Appx. at
932-33. Several days later, the employer terminated the plaintiff’s employment.
Billups, 714 Fed. Appx. at 933.
35
The plaintiff sued his former employer contending that the employer should
have accommodated his disability by offering a limited period of unpaid leave
while he continued to recover from surgery. Billups, 714 Fed. Appx. at 933. On
appeal, the Eleventh Circuit concluded that the plaintiff had not demonstrated that
he was a qualified individual under the ADA because he had not shown that his
request for extended unpaid leave “would have allowed him to return to work ‘in
the present or in the immediate future.’” Billups, 714 Fed. Appx. at 934 (quoting
Wood, 323 F.3d at 1314).
The Court of Appeals distinguished the chronic
disabling conditions at issue in Duckett and Wood from the temporary nature of the
plaintiff’s disability. The Court explained that the plaintiff’s “condition was likely
to be fully corrected, or nearly so at some point in the future,” but the Court
concluded that the requested accommodation was not reasonable “under the legal
standards set out in Wood and Duckett” because the plaintiff “was essentially
requesting a leave of absence that would allow him to work ‘at some indefinite
point’ in the future.” Billups, 714 Fed. Appx. at 935 (quoting Wood, 323 F.3d at
1314). In other words, the plaintiff’s “request for additional leave was essentially
an open-ended request for “‘sufficient time to ameliorate his conditions’”
following surgery. Billups, 714 Fed. Appx. at 936 (quoting Duckett, 120 F.3d at
1226).
36
The Court of Appeals noted that the plaintiff’s employer did not terminate
him when he became disabled, but instead, the employer allowed the plaintiff to
take six months of medical leave. Billups, 714 Fed. Appx. at 936. Although that
period of leave was not enough for the plaintiff to demonstrate that he could return
to work, in light of the employer’s “allowance of six months of leave and the
uncertainty about when [the plaintiff] could perform the essential functions of his
position in the future,” the plaintiff failed to show “that a reasonable jury could
conclude that he was denied a reasonable accommodation that would have allowed
him to perform the essential functions of his job either presently or in the
immediate future.” Billups, 714 Fed. Appx. at 936.
Significantly, in Duckett, Wood, and Billups, the plaintiffs’ employers had
allowed the plaintiffs to take anywhere from six months to years of discretionary
leave before the plaintiffs requested additional or extended leave. See Duckett, 120
F.3d at 1226 (“Plaintiff had already been on medical leave for ten months, . . . and
had no way of knowing when his doctor would allow him to return to work in any
capacity.”); Wood, 323 F.3d at 1314 (the employer granted “years of discretionary
leave,” and the plaintiff “had been on discretionary leave for over one month at the
time of his termination”); Billups, 714 Fed. Appx. at 936 (employer granted
plaintiff “over six months of medical leave to allow recovery”).
37
In this case, Mr. Jackson offers few details about the nature of his request for
leave while doctors adjusted his PTSD medication. Mr. Jackson asked that the
City allow him “to use leave time while [his] medication was being adjusted[.]”
(Doc. 31-1, ¶ 7). Mr. Jackson contends that had the City granted his requests for
an accommodation, his “attendance would have ultimately conformed to the
traditional work schedule for a Parking Enforcement Officer,” and his “stress
would have been reduced because it would have allowed [his] doctors time to
adjust” his medication to better treat his PTSD symptoms. (Doc. 31-1, ¶¶ 6.a, 6.d).
As explained above, Mr. Jackson’s evidence creates a question of fact
about whether the City should have classified him as a probationary or permanent
employee upon his return from military leave. As a permanent employee, Mr.
Jackson could have taken paid vacation and sick leave consistent with the City’s
personnel policies and the rules and regulations of the Personnel Board of
Jefferson County. (Doc. 20-1, p. 20; Doc. 20-9, p. 6; Doc. 20-11, pp. 55-56).8 In
addition, the City’s policies also allow employees to take unpaid leave under the
Family and Medical Leave Act (FMLA). (Doc. 20-11, p. 59). Under certain
8
Permanent employees “may use accrued vacation leave for any purpose.” (Doc. 20-11, p. 55).
Permanent employees may use accrued sick leave for, among other things, “[p]ersonal illness of
the employee,” and “for any other reason, directly related to the health and wellness of the
employee, which in the judgment of the Appointing Authority, constitutes good and sufficient
justification for the use of sick leave.” (Doc. 20-11, p. 56).
38
circumstances, the City also permits employees to take extended medical or
disability leave without pay for up to one year. (Doc. 20-11, p. 60).9
With or without these leave opportunities, the evidence viewed in the light
most favorable to Mr. Jackson demonstrates that the City was not interested in
giving him time to demonstrate that he could return to work “in the present or in
the immediate future.” Wood, 323 F.3d at 1314. Before Mr. Jackson returned
from military leave, Mr. Goodman asked why the City still was paying Mr.
Jackson. (Doc. 22-11; Doc. 23-5, p. 1; Doc. 23-7, p. 1). Five weeks after Mr.
Jackson returned, after he called in sick one day, Mr. Goodman stated that the City
needed to get “documentation prepared” for dismissal.
(Doc. 21-10).
Mr.
Goodman repeatedly reprimanded Mr. Jackson, stating that he (Mr. Goodman)
could tell when PTSD was real and remarking that he did not “want to deal” with
Mr. Jackson or his PTSD. (Doc. 20-1, p. 41; Doc. 20-1, pp. 54-55).
Within weeks of Mr. Jackson requesting an accommodation and within days
of Mr. Jackson submitting a letter from his VA psychiatrist concerning his
condition that suggested FMLA leave as a proper course, the City removed Mr.
Jackson from his patrol and sent him to UAB for a “fitness for duty” examination.
Three weeks later, after additional reprimands for tardiness and absences and
9
The City’s extended medical/disability leave of absence policy provides that “[a]n employee
who has exhausted all other available forms of leave, and is unable to perform the essential
functions of his or her job with or without reasonable accommodation, may be granted an unpaid
leave of absence of up to one (1) year.” (Doc. 20-11, p. 60).
39
before the City received the fitness for duty report from UAB, the City terminated
Mr. Jackson’s employment.
These are the “more compelling facts” that the
Duckett Court contemplated when it explained that “ADA regulations may
possibly be violated if an employee was terminated immediately upon becoming
disabled without a chance to use his leave to recover.” Duckett, 120 F.3d at 1226
n.2.
Because a question of fact exists concerning the reasonableness of Mr.
Jackson’s request to take leave while his doctors adjusted his PTSD medication
and because successful adjustment of his medication could have enabled Mr.
Jackson to maintain the City’s regular work hours without accommodation, a
question of fact exists concerning Mr. Jackson’s status as a qualified individual
under the ADA.
IV.
CONCLUSION
For the reasons stated above, the Court denies the City’s motion for partial
summary judgment. (Doc. 25).
DONE and ORDERED this 6th day of March, 2019.
_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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