Lisby v. Tarkett, Inc. et al
Filing
67
MEMORANDUM OPINION AND ORDER re 52 - For the foregoing reasons, the Court denies Tarkett's motion for summary judgment. The Court will set this case for a pretrial conference by separate order. Signed by Judge Madeline Hughes Haikala on 3/31/2020. (KEK)
FILED
2020 Mar-31 PM 04:33
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
JODY LISBY,
Plaintiff,
v.
TARKETT ALABAMA, INC.,
Defendant.
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Case No.: 3:16-cv-01835-MHH
MEMORANDUM OPINION AND ORDER 1
In this employment action, plaintiff Jody Lisby asserts that defendant Tarkett
Alabama, Inc., committed several violations of the Americans with Disabilities Act,
42 U.S.C. § 12101, et seq., in the course of revoking his conditional job offer. He
brings four ADA claims against Tarkett: (1) disability discrimination; (2) unlawful
medical inquiry; (3) failure to accommodate; and (4) retaliation.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Tarkett has
moved for summary judgment on all of Mr. Lisby’s claims because, according to the
company, no genuine issues of material fact exist as to any of his claims, and Tarkett
is entitled to judgment as a matter of law. Tarkett asserts that it lawfully revoked
1
The Court is issuing this opinion during a declared national emergency concerning COVID-19.
To enable parties to pursue their rights during this emergency, the Court is continuing its work.
For information about the timing of appeals, please review the information provided in the
conclusion of this opinion. The Court is including this procedural information in each opinion that
it issues during the national emergency. The Court expresses no views about potential issues for
appeal related to this opinion or about the ripeness of any potential issue for appeal.
Mr. Lisby’s job offer because a physician determined that he could not safely
perform the job while taking his prescribed methadone. For the reasons stated in
this memorandum opinion, the Court will deny Tarkett’s motion for summary
judgment.
I.
Summary Judgment Standard
“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 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).
When considering a summary judgment motion, a district court must view the
evidence in the record and draw reasonable inferences in the light most favorable to
the non-moving party. Asalde v. First Class Parking Sys. LLC, 898 F.3d 1136, 1138
(11th Cir. 2018). “The court need consider only the cited materials, but it may
consider other materials in the record.” FED. R. CIV. P. 56(c)(3). Accordingly, the
Court presents the summary judgment evidence in the light most favorable to Mr.
Lisby and draws all inferences in his favor.
2
II.
Background
Tarkett makes laminate and vinyl flooring in Florence, Alabama and employs
approximately 385 employees. (Doc. 53-14, p. 20, tp. 73).
Mr. Lisby has ADHD, severe anxiety, and chronic lower back pain. (Doc. 6015, pp. 1–2, ¶¶ 3–5). For several years, under a doctor’s care, he has taken Adderall
to manage his ADHD, benzodiazepines to manage his anxiety, and methadone to
treat his pain. (Doc. 53-10, p. 17, tpp. 66–67; Doc. 60-15, pp. 1–2, ¶¶ 3–5).
Before Mr. Lisby applied for a job at Tarkett, he operated heavy machinery,
drove trucks, and handled dangerous chemicals for Lauderdale County. (Doc. 6015, p. 3, ¶ 6). He took Adderall and methadone during his employment with
Lauderdale County. (Doc. 53-10, pp. 60–63; Doc. 60-15, p. 3, ¶ 6). The methadone
did not impair him. (Doc. 60-15, p. 3, ¶ 6). He had work-related truck accidents in
July 2012 and February 2013. (Doc. 53-10, pp. 8, 10, tpp. 27, 36). He tested positive
for prescribed amphetamine after each accident. (Doc. 53-10, pp. 60–63). Dr. Gary
Daniel, an occupational physician, noted a safety concern about Mr. Lisby’s driving
a truck for Lauderdale County after the 2012 accident, in part because of Mr. Lisby’s
history of taking prescribed methadone. (Doc. 53-6, p. 3, ¶¶ 6.a, 6.c). Dr. Daniel
and Dr. McMurry, another occupational physician, expressed a similar concern
about Mr. Lisby after the 2013 accident. (Doc. 53-6, p. 3, ¶¶ 6.b, 6.c).
Lauderdale County fired Mr. Lisby in June 2013. (Doc. 53-10, p. 13, tpp. 47–
3
48). Mr. Lisby filed an EEOC charge alleging discrimination against Lauderdale
County that involved Dr. Daniel. (Doc. 1-1, p. 1; Doc. 53-10, pp. 26–27, tpp. 97–
98, 100–02). At his deposition, Mr. Lisby described his EEOC charge against
Lauderdale County as a “discrimination charge against [Dr. Daniel].” (Doc. 53-10,
p. 27, tp. 101).
Mr. Lisby then worked for Freight Car as a welder, forklift driver, and truck
driver. (Doc. 53-10, p. 14, tpp. 49–51; Doc. 60-15, p. 3, ¶ 7). He took methadone
during his employment at Freight Car. (Doc. 60-15, p. 3, ¶ 7). Freight Car had no
issue with him taking methadone. (Doc. 60-15, p. 3, ¶ 7).
In May 2015, Mr. Lisby talked with Lori Burchell, Tarkett’s human resources
generalist, about a newly created position at Tarkett called a cycle counter. (Doc.
53-10, p. 17, tp. 61). Ms. Burchell told Mr. Lisby that the cycle counter position
was an inventory control position and would involve physically counting inventory
and entering counts in a computer. (Doc. 53-10, p. 17, tp. 62). Mr. Lisby does not
recall Ms. Burchell’s telling him that he would be driving a forklift, climbing ladders
or stairs, or riding in a bucket affixed to a forklift. (Doc. 53-10, p. 17, tpp. 62–64).
Tarkett offered Mr. Lisby the cycle counter position conditioned upon him passing
a drug test and physical examination. (Doc. 53-10, p. 16, tp. 59).
Mr. Lisby asked Ms. Burchell if he could visit a doctor other than Dr. Daniel
for his preemployment drug test and physical because he “may have trouble” with
4
Dr. Daniel. (Doc. 53-10, pp. 20, 27, tpp. 73–75, 101–02). Mr. Lisby told Ms.
Burchell that he had an “ongoing dispute” with Dr. Daniel concerning
discrimination—something “pending . . . like an investigation”—that could cause a
“future problem,” have “legal ramification[s],” and “could judge negatively towards
[Mr. Lisby].” (Doc. 53-10, pp. 20, 27, tpp. 73–75, 101–02). Though he did not use
the words “charge” or “lawsuit,” Mr. Lisby was referring to his EEOC charge filed
against Lauderdale County in which he asserted disability discrimination against Dr.
Daniel.
(Doc. 53-10, p. 27, tp. 101).
Mr. Lisby volunteered to pay for an
examination conducted by a different doctor. (Doc. 53-10, p. 20, tp. 74). Ms.
Burchell responded that she did not see any problem with Mr. Lisby seeing another
doctor, but said that she would have to find out. (Doc. 53-10, p. 20, tp. 74).
Nevertheless, on May 13, 2015, Mr. Lisby went to Dr. Daniel’s office for his
preemployment drug test and physical. (Doc. 53-10, p. 19, tpp. 70–72; Doc. 53-10,
pp. 68–69). Dr. Daniel’s nurse practitioner, Sharron Boatwright, conducted the
physical and collected a urine sample for the drug test. (Doc. 53-10, p. 19, tpp. 70–
72; Doc. 53-10, pp. 68–69).
That day, Tarkett human resources faxed to Dr. Daniel’s office a job
description for the cycle counter position. (Doc. 53-4, p. 14, tp. 52; Doc. 53-10, p.
65). The job description listed the following as “job duties” for the cycle counter
position: “counting all material plantwide”; “conduct[ing] cycle counts plantwide”;
5
and “[completing] data entry in (SAP) system.” (Doc. 53-10, p. 65) (capitalization
omitted). The job description listed the following as “job requirements” for the cycle
counter position: knowing “Excel and [being] computer literate”; being “very
organized”; “maintain[ing] good attendance”; “lift[ing] 65+ pounds”; “climb[ing]
stairs on a regular basis”; “bend[ing] or stoop[ing] on a regular basis”; “work[ing]
from heights”; “work[ing] in a non-heated[,] non-air conditioned environment for at
least 8 hours a day”; and “work[ing] for long periods on concrete floors.” (Doc. 5310, p. 65) (capitalization omitted). The job description did not mention forklift work.
On May 17, 2015, Dr. Daniel received the results of Mr. Lisby’s drug test.
(Doc. 53-10, p. 70). Mr. Lisby tested positive for his prescribed amphetamine
(Adderall) and methadone. (Doc. 53-10, p. 70). Dr. Daniel’s office informed Tarkett
that Mr. Lisby passed his drug test. (Doc. 53-4, pp. 12–13, tpp. 41–42, 47). So Ms.
Burchell called Mr. Lisby and told him to attend orientation for the cycle counter
position on May 19, 2015. (Doc. 53-4, p. 13, tp. 46).
Mr. Lisby attended orientation for the cycle counter position on May 19,
2015. (Doc. 53-10, p. 19, tpp. 70–72). That day, Ms. Burchell faxed to Dr. Daniel’s
office a cycle counter job description that was different from the one faxed to his
office on May 13, 2015. (Doc. 53-4, p. 15, tp. 55; Doc. 60-12, p. 1). For the most
part, this second job description listed similar duties as the first job description. But
the second job description, unlike the first, included driving a forklift, and did not
6
include climbing stairs or working from heights. (Doc. 60-12, p. 1). Mr. Lisby is
not aware of being shown either job description. (Doc. 53-10, p. 16, tp. 58).
After Ms. Burchell faxed him the new job description, Dr. Daniel called Ms.
Burchell and told her that Mr. Lisby could not safely perform the cycle counter
position because of the position’s “safety sensitive duties.” (Doc. 53-6, p. 5, ¶ 13).
Dr. Daniel believed that Mr. Lisby could not safely work from heights or operate a
forklift because of the effects of methadone. (Doc. 53-6, pp. 4–5, ¶ 11; Doc. 53-7,
pp. 13, 18, 22, 26, 32–33, tpp. 48, 66–67, 81, 83, 97–100, 124–25). Dr. Daniel sent
a form to Tarkett on which he marked that Mr. Lisby “[d]oes not meet the physical
requirements listed in the job description” because, in Dr. Daniel’s opinion, Mr.
Lisby could not perform “safety sensitive work.” (Doc. 53-6, p. 8).
After the phone call from Dr. Daniel, Ms. Burchell went to pull Mr. Lisby out
of orientation. Mr. Lisby testified that Ms. Burchell went into the orientation room
and told him in a “medium talk” in front of several others that Dr. Daniel would not
permit him to work because he tested positive for amphetamines and methadone.
(Doc. 53-10, pp. 20, 27, tpp. 73, 102–03). Ms. Burchell testified that Mr. Lisby then
told her that he thought that Dr. Daniel was biased against him because they “had a
previous litigation history with each other.” (Doc. 53-4, p. 17, tp. 64). She told him
that Tarkett would set up a second drug screen with another vendor. (Doc. 53-4, p.
18, tpp. 65–66). A second drug screen never occurred. (See Doc. 53-4, pp. 9–10,
7
tpp. 32–33).
Tarkett withdrew Mr. Lisby’s job offer. (Doc. 53-10, pp. 27–28, tpp. 103–
05).
On August 26, 2015, Mr. Lisby filed an EEOC charge alleging disability
discrimination and retaliation against Tarkett. (Doc. 1-1, p. 1). On September 20,
2016, the EEOC issued Mr. Lisby a notice of his right to sue. (Doc. 1-2, p. 1). This
lawsuit followed.
Mr. Lisby asserts that Tarkett failed to hire him because of an actual or
perceived disability; used his medical information in a manner inconsistent with the
ADA; failed to interact with him when he sought an accommodation by requesting
an evaluation from a doctor other than Dr. Daniel; and retaliated against him for
alleging disability discrimination against Dr. Daniel in his prior EEOC charge filed
against Lauderdale County. (Doc. 20, pp. 6–9; see Doc. 62, pp. 14–28).
III.
Analysis
A.
Disability Discrimination
Mr. Lisby asserts that Tarkett failed to hire him because of an actual or
perceived disability in violation of the ADA. The ADA prohibits employers from
discriminating “against a qualified individual on the basis of a disability” in any of
the “terms, conditions, [or] privileges of employment.” 42 U.S.C. § 12112(a). In
cases alleging disability discrimination, courts apply the burden-shifting analysis
8
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Earl v.
Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000).2
Pursuant to this framework, a plaintiff first must establish a prima facie case
of disability discrimination. Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264,
1268 (11th Cir. 2014). The prima facie case requires proof of three elements: (1)
that the plaintiff “had a disability” when he suffered an “adverse employment
action;” (2) “he was a qualified individual”; and (3) “he was subjected to unlawful
discrimination because of his disability.” Mazzeo, 746 F.3d at 1268. If the plaintiff
satisfies his prima facie case, then the burden shifts to the defendant to articulate a
legitimate nondiscriminatory reason for the adverse employment decision.
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004).
And then the burden shifts back to the plaintiff to demonstrate that the defendant’s
articulated reason is pretext for disability discrimination. Cleveland, 369 F.3d at
1193. The plaintiff succeeds at this step by showing that the defendant’s articulated
reason is “unworthy of credence.” Cleveland, 369 F.3d at 1193.
The ADA defines “disability” as (1) “a physical or mental impairment that
substantially limits one or more major life activities of [an] individual”; (2) “a record
of such an impairment”; or (3) “being regarded as having such an impairment.” 42
2
McDonnell Douglas burden-shifting does not apply to ADA discrimination claims based on a
failure to provide a reasonable accommodation. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247,
1262 (11th Cir. 2007). So the Court will address separately Mr. Lisby’s claim that Tarkett
unlawfully discriminated against him by failing to reasonably accommodate his disability.
9
U.S.C. § 12102(1). The ADA provides that “major life activities include, but are not
limited to, caring for oneself, performing manual tasks, seeing, hearing, eating,
sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
The ADA provides also that an individual is “regarded as” having a disability “if the
individual establishes that he or she has been subjected to an action prohibited under
this chapter because of an actual or perceived physical or mental impairment whether
or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C.
§ 12102(3)(A). But an individual cannot be “regarded as” disabled based on a
“transitory or minor” impairment, which the ADA defines as “an impairment with
an actual or expected duration of 6 months or less.” 42 U.S.C. § 12102(3)(B).
Under the second element of the prima facie case, 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).
Under the third element of the prima facie case, the ADA lists several
examples of what constitutes proof that an individual “was subjected to unlawful
discrimination because of his disability.” See 42 U.S.C. § 12112(b). Relevant to
Mr. Lisby’s disability discrimination claim, the ADA defines as disability
discrimination “limiting, segregating, or classifying a job applicant or employee in
10
a way that adversely affects the opportunities or status of such applicant or employee
because of the disability of such applicant or employee.” 42 U.S.C. § 12112(b)(1).
Here, under the first element of Mr. Lisby’s prima facie case, a genuine
dispute of material fact exists as to whether he has an actual disability under the
ADA. Mr. Lisby suffers from ADHD, severe anxiety, and chronic lower back pain.
Mr. Lisby and his wife testified that, without medication, his ADHD renders him
unable to focus and makes it difficult to communicate his thoughts. (Doc. 60-14, p.
1, ¶ 3; Doc. 60-15, p. 1, ¶ 3). They both testified that his anxiety causes obsessive
thoughts, rambling, fidgeting, sleeping problems, and panic attacks; he has panic
attacks at least once a week. (Doc. 60-14, p. 2, ¶ 4; Doc. 60-15, p. 2, ¶ 4). Dr. Daniel
assumed that Mr. Lisby’s anxiety was “rather severe” because it caused panic
attacks. (Doc. 53-7, p. 10, tp. 36). Mr. Lisby and his wife testified that his chronic
lower back pain prevents him from standing or sitting in the same position for long
periods of time, engaging in physical activity, and sleeping comfortably. (Doc. 6014, p. 2, ¶ 5; Doc. 60-15, pp. 2–3, ¶ 5). Mr. Lisby was taking methadone regularly
to manage his back pain. (Doc. 53-7, p. 31, tpp. 118–19). 3 This evidence could
support a reasonable inference that Mr. Lisby’s ADHD, severe anxiety, and chronic
lower back pain each limits one or more of his major life activities, and therefore
3
Dr. Daniel testified that taking long-term methadone is “a little overkill” for treating chronic pain;
that generally, methadone is not used as a long-term painkiller; and that doctors generally prescribe
opioids only on an acute, short-term basis. (Doc. 53-7, p. 31, tpp. 118–19).
11
creates a genuine dispute of material fact as to whether he has an actual disability.
Even if Mr. Lisby did not have an actual disability, he still would satisfy the
first element of his prima facie case because a genuine dispute of material fact exists
as to whether Tarkett regarded Mr. Lisby as having a disability. As stated above, an
individual can state a prima facie case of discrimination based on a perceived
disability regardless of whether the disability limits or is perceived to limit a major
life activity. See 42 U.S.C. § 12102(3)(A). Here, Dr. Daniel knew that Mr. Lisby
was taking prescribed amphetamine and methadone. (Doc. 53-6, pp. 4–5, ¶ 11; Doc.
53-10, p. 23, tpp. 85–86). Mr. Lisby reported to Dr. Daniel’s nurse practitioner that
he took prescribed Adderall for ADD, Klonopin for panic attacks, and methadone
for back pain. (Doc. 53-6, pp. 3–4, ¶¶ 9.c, 9.d; Doc. 53-10, p. 68). Tarkett relied
only on information from Dr. Daniel. And Mr. Lisby testified that Ms. Burchell told
him that his drug test revealed amphetamine and methadone. (Doc. 53-10, p. 20, tp.
73). A reasonable jury could infer from this evidence that Tarkett perceived Mr.
Lisby to have underlying disabling conditions that required him to take those
medicines.
In arguing that no genuine dispute of material fact exists, Tarkett incorrectly
states that Mr. Lisby relies on the side effects of methadone as his only actual or
perceived disability. (See Doc. 55, p. 14) (“Even if his medication were uniquely
necessary, his impairment cannot qualify because it is transitory. Lisby’s claim here
12
is not based on some perceived disability for which he takes medication and is not
based on perceived addiction; it is based on the medication’s transitory effects when
taken as prescribed.”) (citations and emphasis omitted). But Mr. Lisby does not
allege actual or perceived disability based only on the side effects of his medication;
he alleges actual disability based on ADHD, severe anxiety, and chronic lower back
pain, and perceived disability based on impairments requiring amphetamine and
methadone.
Even so, a reasonable jury could find that, based on Dr. Daniel’s opinion of
Mr. Lisby’s impairments caused by methadone, such impairments are not “transitory
and minor,” and therefore may constitute a perceived disability. Dr. Daniel testified
that long-term opioid use could cause impaired motor skills, response time, and
cognitive functioning, and that the severity of impairments could fluctuate day-today based on factors like sleep, food, and other medicines. (Doc. 53-7, pp. 24, 26,
tpp. 91–92, 99). And the fact that Dr. Daniel recommended a total and immediate
restriction of safety sensitive work, as opposed to a temporary restriction, supports
a reasonable inference that Dr. Daniel considered methadone impairments to be nonminor and non-transitory. So Tarkett’s perception of the impairments of Mr. Lisby’s
methadone use could be a perceived disability under the ADA.
Under the second element of Mr. Lisby’s prima facie case, Tarkett contends
that he was not a “qualified individual” under the ADA because he posed a direct
13
threat to his and others’ safety as a cycle counter. (See Doc. 55, pp. 19–21). An
individual who “pose[s] a direct threat to the health or safety of other individuals in
the workplace” is not a qualified individual under the ADA. 42 U.S.C. § 12113(b);
see Waddell v. Valley Forge Dental Assocs., Inc., 276 F.3d 1275, 1284 (11th Cir.
2001) (“Waddell, because he is infected with the fatal, contagious disease of HIV,
is a direct threat to his workplace, and therefore not a qualified individual under the
ADA.”). The ADA defines a “direct threat” as “a significant risk to the health or
safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C.
§ 12111(3). An employer must decide whether an employee poses a direct threat
“‘based on a reasonable medical judgment that relies on the most current medical
knowledge and/or the best available objective evidence,’ and upon an expressly
‘individualized assessment of the individual’s present ability to safely perform the
essential functions of the job,’ reached after considering, among other things, the
imminence of the risk and the severity of the harm portended.” Chevron U.S.A. Inc.
v. Echazabal, 536 U.S. 73, 86 (2002) (quoting 29 CFR § 1630.2(r)).
Here, evidence contradicts Tarkett’s argument that Mr. Lisby posed a direct
threat as a cycle counter. Tarkett reached its decision based only on Dr. Daniel’s
opinion. But Dr. Daniel did not examine Mr. Lisby or investigate whether Mr. Lisby
actually exhibited impairments from taking methadone. Instead, Dr. Daniel opined
that Mr. Lisby was a safety risk because Dr. Daniel generally considered all long-
14
term opiate users to pose an increased risk of injury. (Doc. 53-7, pp. 13–14, 18–19,
tpp. 48–49, 66–67, 69–70). So a reasonable jury could doubt that Tarkett relied on
the “best available objective evidence” or an “individualized assessment of [Mr.
Lisby’s] present ability to safely perform the essential functions of the [cycle
counter] job” in deciding that he posed a direct threat. See 29 CFR § 1630.2(r); Lowe
v. Alabama Power Co., 244 F.3d 1305, 1309 (11th Cir. 2001) (finding that
“particularized facts using the best available objective evidence as required by the
regulations” did not support that an employee posed a direct threat because the
employer relied in part on a doctor’s “assumption that all double amputees have the
same limitations,” the doctor did not assess the employee’s “actual capabilities
through a physical examination or functionality test,” and conducted only a
“‘cursory’ examination of the employee”).
On the other hand, Mr. Lisby’s evidence shows that he was qualified for the
cycle counter position and did not pose a direct threat. He had performed duties
similar to, and some more hazardous than, those of a cycle counter at his previous
jobs for several years while taking methadone; the methadone did not impair him.
(See Doc. 60-15, p. 3, ¶¶ 6–7). So a genuine dispute of material fact exists as to
whether Mr. Lisby posed a direct threat and whether he was a qualified individual
under the ADA.
Mr. Lisby rounds out his prima facie case with evidence that Tarkett subjected
15
him to discrimination because of his actual or perceived disability. Tarkett revoked
Mr. Lisby’s job offer only because of Dr. Daniel’s opinion. Dr. Daniel based his
opinion on the effects of methadone, which, as explained above, could be a perceived
disability. Evidence supports a reasonable inference that Tarkett knew of Mr.
Lisby’s actual disabilities (ADHD, severe anxiety, and chronic lower back pain) and
perceived disabilities (conditions requiring Adderall and methadone, and
impairments from methadone). (See Doc. 53-6, pp. 3–5, ¶¶ 9.c, 9.d, 11; Doc. 53-10,
pp. 20, 23, tpp. 73, 85–86). And Tarkett prevented Mr. Lisby from working
immediately after receiving Dr. Daniel’s opinion. So a genuine dispute of material
fact exists as to whether Tarkett discriminated against Mr. Lisby because of an actual
or perceived disability, and Mr. Lisby has established a prima facie case of disability
discrimination.
The burden now shifts to Tarkett to give a legitimate nondiscriminatory reason
for failing to hire Mr. Lisby. The company has explained that it failed to hire him
because Dr. Daniel said that Mr. Lisby could not perform safety sensitive work.
The burden now shifts back to Mr. Lisby to identify a genuine dispute as to
whether Tarkett’s explanation for failing to hire him is pretext for disability
discrimination. His evidence of suspicious circumstances surrounding Tarkett’s
decision supports a reasonable inference of pretext. Ms. Burchell testified that Dr.
Daniel’s office told her that Mr. Lisby passed his drug test and was cleared to work
16
based on the first cycle counter job description sent to Dr. Daniel’s office. (Doc. 534, pp. 12–13, tpp. 41–42, 47). That job description included “able to work from
heights.” (Doc. 53-10, p. 65). But, for reasons not clear from the record, Tarkett
then provided Dr. Daniel a second job description that, unlike the first job
description, included forklift work, which may reasonably be considered more
hazardous. (Doc. 53-4, p. 15, tp. 55; Doc. 60-12, p. 1). The same day that he
received the second job description, Dr. Daniel opined that, because Mr. Lisby’s
long-term methadone use impacted his (Mr. Lisby’s) ability to “work at heights and
operat[e] [] vehicles on the job,” Mr. Lisby could not perform the Cycle Counter job.
(Doc. 53-6, p. 4). So a reasonable jury could find suspicious Tarkett’s sending Dr.
Daniel the second job description. Also, Tarkett sent Mr. Lisby to Dr. Daniel for his
drug test and physical even though Mr. Lisby told Ms. Burchell that he and Dr.
Daniel had a history involving discrimination. And Dr. Daniel recommended a total
prohibition on performing safety sensitive work without assessing Mr. Lisby’s
individualized impairments. A reasonable jury could find that this evidence casts
doubt on Tarkett’s explanation for terminating Mr. Lisby. So Mr. Lisby has shown
a genuine dispute of material fact as to pretext, and the Court will deny summary
judgment on his disability discrimination claim.
B.
Unlawful Medical Inquiry
Mr. Lisby brings an unlawful medical inquiry claim against Tarkett under the
17
ADA.
He contends that Tarkett violated the ADA by “using [his] medical
information in a manner inconsistent with the ADA and regulations.” (Doc. 20, p.
7, ¶ 47).
The ADA provides a private right of action for a violation of the Act’s
preemployment medical examination rules.
Harrison v. Benchmark Elecs.
Huntsville, Inc., 593 F.3d 1206, 1213 (11th Cir. 2010). One of these rules is that an
employer “may condition an offer of employment on the results of [a preemployment
medical] examination, if . . . information obtained regarding the medical condition
or history of the applicant is . . . treated as a confidential medical record, except that
. . . supervisors and managers may be informed regarding necessary restrictions on
the work or duties of the employee. . . .” 42 U.S.C. § 12112(d)(3)(B)(i).
Mr. Lisby contends that Tarkett violated this confidentiality rule because he
asserts that Ms. Burchell communicated the results of his drug test in the presence
of others. (Doc. 62, p. 7, ¶ 17).4 He testified that Ms. Burchell told him in a
“medium talk” in front of several non-supervisor employees at the orientation that
4
In his second amended complaint, Mr. Lisby also alleged that “medical information obtained by
defendants was improperly used to screen out plaintiff, and the criteria applied by defendants was
not job-related and consistent with business necessity.” (Doc. 20, p. 7, ¶ 46). By omitting this
allegation from his brief in response to Tarkett’s motion for summary judgment, he has abandoned
this aspect of his unlawful medical inquiry claim. See Cole v. Owners Ins. Co., 326 F. Supp. 3d
1307, 1329 (N.D. Ala. 2018) (“[G]rounds alleged in a complaint, but ignored at summary judgment
are abandoned. [Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995)].
The court finds that the Coles abandoned any suppression- or deceit-based fraud theory by failing
to advance a relevant argument in response to Owners’s motion for summary judgment. [Id.]).”
18
Dr. Daniel would not permit him to work because he tested positive for
amphetamines—she may have said “methamphetamines”—and methadone. (Doc.
53-10, pp. 20, 27, tpp. 73, 102–03).5 On the other hand, Ms. Burchell testified that
she pulled Mr. Lisby out of the orientation room, shut the door to the room behind
them, and communicated with him in the hallway where nobody could overhear
them. (Doc. 53-4, p. 17, tpp. 63–64). The alternative versions of this event create a
genuine dispute of material fact as to whether Ms. Burchell breached the
confidentiality of the results of Mr. Lisby’s drug test.
Tarkett contends that Mr. Lisby’s medical inquiry claim nevertheless fails
because, according to the company, he has no evidence of damages that he suffered
as a result of any breach of confidentiality. (Doc. 55, pp. 22–23). But Mr. Lisby has
evidence that he suffered emotional distress from the breach, and emotional damages
can support a medical inquiry claim. See Russell v. City of Mobile Police Dep’t, 552
Fed. Appx. 905, 907 (11th Cir. 2014) (citing Harrison v. Benchmark Elecs.
Huntsville, Inc., 593 F.3d 1206, 1216–17 (11th Cir. 2010)). Mr. Lisby testified that,
after Tarkett revoked his job offer, his neighbor asked him if he took drugs; a former
Tarkett employee worked for that neighbor. (Doc. 53-10, p. 32, tp. 123). Several
5
Tarkett contends that the Court cannot consider this testimony on summary judgment because it
is hearsay. (Doc. 55, pp. 22–23). But a district court may consider summary judgment evidence
that may be reduced to admissible form at trial. Macuba v. Deboer, 193 F.3d 1316, 1323 (11th
Cir. 1999). Mr. Lisby may avoid a hearsay objection at trial by calling Ms. Burchell as a witness,
so the Court will consider Mr. Lisby’s testimony.
19
Tarkett employees that live in Mr. Lisby’s neighborhood now know that he took
drugs. (Doc. 53-10, p. 32, tp. 122). He now feels stigmatized for using methadone.
(Doc. 53-10, p. 32, tp. 123; Doc. 60-15, p. 2, ¶ 5). The stigma causes him anxiety
and prevents him from taking methadone again. (Doc. 53-10, p. 32, tp. 123; Doc.
60-15, p. 2, ¶ 5). A reasonable jury could infer from this evidence that Mr. Lisby
suffered injury from word—and possibly misinformation—getting out about his
drug use. So the Court will deny summary judgment as to Mr. Lisby’s medical
inquiry claim.
C.
Failure to Accommodate
Next, Mr. Lisby contends that Tarkett unlawfully discriminated against him
by failing to provide a reasonable accommodation for his disability. An employer
unlawfully discriminates against a qualified individual with a disability by “not
making reasonable accommodations to the known physical or mental limitations of
[the individual], unless [the employer] can demonstrate that the accommodation
would impose an undue hardship on the operation of the business of [the employer].”
42 U.S.C. § 12112(b)(5)(A). To succeed on a failure to accommodate claim, a
plaintiff must show that he had a disability, was a qualified individual under the
ADA, and was denied a reasonable accommodation. Holly, 492 F.3d at 1256, 1262.
The plaintiff bears the burden to identify an accommodation he was denied and prove
that the accommodation would have been reasonable. Willis v. Conopco, Inc., 108
20
F.3d 282, 284 (11th Cir. 1997). “An accommodation is ‘reasonable’ and necessary
under the ADA only if it enables the employee to perform the essential functions of
the job.” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1259–60 (11th Cir. 2001).
But the employer’s duty to provide a reasonable accommodation does not arise
unless the employee makes a “specific demand for an accommodation.” Gaston v.
Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir. 1999).
Here, the record construed in the light most favorable to Mr. Lisby supports a
reasonable inference that he made a specific demand for an accommodation when
he asked to see a doctor other than Dr. Daniel. Mr. Lisby testified that, before his
preemployment physical and drug test, he told Ms. Burchell that he “may have
trouble” with Dr. Daniel because of an “ongoing dispute” with Dr. Daniel
concerning discrimination, and something “pending . . . like an investigation”
against Dr. Daniel that could cause a “future problem,” have “legal ramification[s],”
and “could judge negatively towards [Mr. Lisby].” (Doc. 53-10, pp. 20, 27, tpp. 73–
75, 101–02). He repeated his request to see a different doctor after Ms. Burchell
informed him that Dr. Daniel prohibited him from working. (Doc. 53-7, p. 25, tp.
94; see Doc. 53-4, pp. 17–18, tpp. 64–66). A reasonable jury could find that Mr.
Lisby requested a second unbiased opinion as the only way to keep his job in the
face of a disability-based decision to revoke his job offer; after all, Tarkett relied
only on Dr. Daniel’s opinion in deciding to revoke Mr. Lisby’s job offer. So a
21
genuine dispute of material fact exists as to whether Mr. Lisby requested an
accommodation. See Moore v. Computer Scis. Corps., 2017 WL 3873777, at *9
(N.D. Ala. Sept. 5, 2017) (finding a genuine dispute of material fact as to whether a
plaintiff made a specific demand for a reasonable accommodation by withdrawing
her leave request because she would likely lose her job if she did not).
Also, evidence supports a reasonable inference that permitting Mr. Lisby to
see another doctor would have been a reasonable accommodation. Mr. Lisby took
methadone without issue under a doctor’s care during his prior employment with
Lauderdale County and Freight Car where he performed safety sensitive work.
(Doc. 60-15, p. 3, ¶¶ 6–7). So reasonable jurors could find that a second evaluation
would enable Mr. Lisby to perform the essential functions of the cycle counter
position. And he volunteered to pay for another evaluation, so Tarkett would suffer
no hardship. Because Mr. Lisby has shown a genuine dispute of material fact as to
whether he requested an accommodation, whether that accommodation was
reasonable, and whether Tarkett denied him that accommodation, the Court will
deny summary judgment as to Mr. Lisby’s failure to accommodate claim.
D.
Retaliation
Finally, Mr. Lisby contends that Tarkett did not hire him because he filed an
EEOC charge alleging disability discrimination against Lauderdale County that
involved Dr. Daniel. The ADA provides that “[n]o person shall discriminate against
22
any individual because such individual has opposed any act or practice made
unlawful by [the ADA] or because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under [the
ADA].” 42 U.S.C. § 12203(a). The McDonnell Douglas burden-shifting analysis
applies to ADA retaliation claims. Stewart v. Happy Herman’s Cheshire Bridge,
Inc., 117 F.3d 1278, 1287 (11th Cir. 1997). “To establish a prima facie case of
retaliation, a plaintiff must show: (1) statutorily protected expression; (2) adverse
employment action; and (3) a causal link between the protected expression and the
adverse action.” Stewart, 117 F.3d at 1287. “To prove a causal connection, [the
Eleventh Circuit] require[s] a plaintiff only to demonstrate that the protected activity
and the adverse action were not wholly unrelated.” Farley v. Nationwide Mut. Ins.
Co., 197 F.3d 1322, 1337 (11th Cir. 1999) (internal quotations and emphasis
omitted). A plaintiff can show a causal link with proof that “the decision-maker
became aware of the protected conduct, and that there was close temporal proximity
between this awareness and the adverse employment action.” Farley, 197 F.3d at
1337. Temporal proximity must be “very close” to raise a genuine issue of causation
on its own. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
If the plaintiff establishes his prima facie case, then the burden shifts to the
defendant to articulate a legitimate nonretaliatory reason for the adverse action.
Stewart, 117 F.3d at 1287.
Then the burden shifts back to the plaintiff to
23
“demonstrate that [he] will be able to establish at trial that the employer’s proffered
non-discriminatory reasons are a pretextual ruse designed to mask retaliation.”
Stewart, 117 F.3d at 1287.
Here, Mr. Lisby engaged in statutorily protected expression by filing an
EEOC charge against Lauderdale County, and he suffered an adverse employment
action when Tarkett revoked his conditional job offer. But Tarkett contends that no
evidence supports an inference of a causal link between Mr. Lisby’s EEOC charge
and the company’s decision. The Court disagrees.
A reasonable jury could infer that Tarkett was aware of Mr. Lisby’s EEOC
charge, or believed he was engaged in comparable protected activity, because of his
conversations with Ms. Burchell. Sometime around May 13, 2015, he told Ms.
Burchell that he had an ongoing dispute concerning discrimination against Dr.
Daniel that could have legal ramifications. (Doc. 53-10, p. 27, tp. 101). Ms.
Burchell told him on May 19, 2015 that Dr. Daniel prohibited him from working. A
reasonable jury could find “very close” temporal proximity between these two
conversations, so the temporal proximity is by itself sufficient to satisfy the
causation element of Mr. Lisby’s prima facie case. See Thomas, 506 F.3d at 1364.
The burden now shifts to Tarkett to articulate a legitimate nonretaliatory
reason for revoking Mr. Lisby’s job offer. As it did in response to Mr. Lisby’s
discrimination claim, Tarkett explains that it revoked his job offer because Dr.
24
Daniel opined that he could not perform safety sensitive work. The Court, in the
context of Mr. Lisby’s discrimination claim, has found that his evidence casts
reasonable suspicion on Tarkett’s explanation and raises a genuine dispute of
material fact as to pretext. So the Court will deny summary judgment as to Mr.
Lisby’s retaliation claim.
IV.
Conclusion
For the foregoing reasons, the Court denies Tarkett’s motion for summary
judgment. The Court will set this case for a pretrial conference by separate order.
The recent General Order Regarding Court Operations During the Public
Health Emergency Caused by the COVID-19 Virus (N.D. Ala. Mar. 17, 2020) does
not affect the deadline to challenge a final order or judgment on appeal. See
https://www.alnd.uscourts.gov/general-order-regarding-court-operations-duringpublic-health-emergency-caused-covid-19-virus, p. 2, ¶ 7. The parties are reminded
that under Rule 4(a)(5) of the Federal Rules of Appellate Procedure, a party may
request an extension of time for a notice of appeal. In addition, pursuant to Rule
4(a)(6), a party may ask a district court to reopen the time to file a notice of appeal
for 14 days.
Parties are advised to study these rules carefully if exigent
circumstances created by the COVID-19 Public Health Emergency require motions
under FRAP 4(a)(5) or 4(a)(6).
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DONE and ORDERED this 31st day of March, 2020.
_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
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