Ward v. City of Gadsden

Filing 34

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 2/13/2017. (JLC)

FILED
2017 Feb-13 PM 02:27
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
GREGORY ALAN WARD,
Plaintiff,
v.
CITY OF GADSDEN,
Defendant.

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) Case No.: 4:15-CV-0865-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
A.

Summary of Mr. Ward’s Claims

On May 26, 2015, Plaintiff Gregory Alan Ward (“Mr. Ward”), who is
representing himself, initiated this job discrimination lawsuit against Defendant the
City of Gadsden (the “City”) arising under the Americans with Disabilities Act (the
“ADA”), as amended by the ADA Amendments Act of 2008 (the “ADAAA”). (Doc.
1). Mr. Ward filed an amended complaint (Doc. 4) on July 2, 2015. While this
amended pleading is not separated into numbered counts, a broad reading of it
suggests that Mr. Ward is potentially asserting two claims against the City–one for
discriminatory discharge (or failure to rehire) and the other for the failure to provide

him with a reasonable accommodation. (Doc. 4 at 2-3);1 (see also Doc. 1-2 (attaching
Mr. Ward’s charge of discrimination filed with the EEOC on April 28, 2014)).
B.

Summary of Pending Motions

Pending before the court is the City’s Motion for Summary Judgment (Doc. 21)
(the “Rule 56 Motion”) filed on May 27, 2016. The City filed its brief (Doc. 22) and
evidentiary submission (Doc. 23) on this same date. Mr. Ward initially responded to
the Rule 56 Motion on June 10, 2016. (Doc. 24). On June 24, 2016, the court entered
its customary pro se summary judgment scheduling order (Doc. 25) that gave Mr.
Ward special notice of his right to additionally respond to the City’s Rule 56 Motion
with affidavits or other opposing evidence and warned him about the consequences
of not adequately responding to it. Mr. Ward filed nothing further and the City filed
its reply brief (Doc. 27) on July 25, 2016.
After reviewing the parties’ filings and finding them to be substantially
deficient as measured against the requirements mandated by Appendix II of the
Uniform Initial Order (Doc. 11), the court entered an order (Doc. 28) that obligated
the City to rebrief its Rule 56 Motion and permitted Mr. Ward to file a further
response. (Id. at 4-5). The City filed its replacement brief (Doc. 29) on September 19,
2016. Mr. Ward first filed his response (Doc. 30) on November 1, 2016, and then
1

The page references to Doc. 4 correspond with the court’s CM/ECF numbering system.
2

filed what appears to be a corrected response (Doc. 31) on November 3, 2016. The
City, on November 8, 2016, moved to strike both of the responses (Doc. 32) (the
“Strike Motion”) as untimely and for other reasons. Finally the City filed its reply
(Doc. 33) on November 8, 2016. For the reasons explained below, the City’s Rule 56
Motion is due to be granted in part and denied in part. Further, its Strike Motion is
due to be denied in part and otherwise termed as moot.
II.

FACTUAL BACKGROUND2
Mr. Ward was hired as a part-time bus driver for the City in April of 2010. AF

Nos. 1-2.3 Sadly, in December 2011, his longtime life partner died of cancer. AF No.
3. One of Mr. Ward’s supervisors–Misty Lemons (“Ms. Lemons”)–gave Mr. Ward

2

Keeping in mind that when deciding a motion for summary judgment the court must view
the evidence and all factual inferences in the light most favorable to the party opposing the motion,
the court provides the following statement of facts. See Optimum Techs., Inc. v. Henkel Consumer
Adhesives, Inc., 496 F.3d 1231, 1241 (11th Cir. 2007) (observing that, in connection with summary
judgment, a court must review all facts and inferences in a light most favorable to the non-moving
party). This statement does not represent actual findings of fact. See In re Celotex Corp., 487 F.3d
1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement simply to place the
court’s legal analysis in the context of this particular case or controversy.
3

Under Appendix II of the court’s Uniform Initial Order (Doc. 11) entered on September
4, 2015, “[a]ll statements of fact must be supported by specific reference to evidentiary
submissions.” (Id. at 16). The designation “AF” stands for admitted fact and indicates a fact offered
by the City that it has adequately supported through citations to underlying evidence as Appendix
II mandates. For Mr. Ward, more specifically, this means that even though he failed to address the
factual section of the City’s brief in support of its Rule 56 Motion, the court has independently
reviewed the proof (i.e., the City’s evidentiary materials contained in Doc. 23) offered by the City
to establish that proposed fact before accepting it as a fact admitted by Mr. Ward. The court’s
numbering of admitted facts (e.g., AF No. 1) corresponds to the numbering of the City’s factual
background as set forth in Doc. 29.
3

some time off from work for bereavement. AF No. 6.
Less than a year after his loss, in July 2012, Mr. Ward began seeing a
psychiatrist affiliated with the Veterans Affairs Medical Center (the “VA”) located
in Gadsden, who treated him for depression. AF No. 4. Mr. Ward was prescribed
Zoloft and other anti-anxiety medication. AF No. 5. Mr. Ward made Ms. Lemons
aware of his treatment for depression. AF No. 6. Mr. Ward did this so that Ms.
Lemons would know to adjust his work schedule around his doctor appointments if
necessary. AF No. 7. Up to that point, Mr. Ward had not missed any work because of
his depression. AF No. 8. Further, his depression did not cause him to miss work for
the remainder of his time with the City with the exception of his doctor appointments.
AF No. 8.
Approximately 15 months later from the death of his partner, in October 2013,
Mr. Ward was involved in an incident that led to a disciplinary write-up. AF No. 9.
More specifically, Mr. Ward was pulling the bus up to the crosswalk to allow the
ramp to be lowered to discharge a wheelchair-bound passenger and he apparently
“touched” a lady’s car parked in front of where he had stopped the bus. AF No. 10.
Mr. Ward testified that the lady came up and started “screaming and hollering and
carrying on and calling [him] names[.]” AF No. 11. Mr. Ward tried to calm her down,
but she was “just really belligerent.” AF No. 11. Eventually, Mr. Ward “lost [his]
4

temper[,]” and told her, “Lady, you’re crazy.” AF Nos. 11-12. While Mr. Ward
believes the lady had problems, he testified that, “I just didn’t handle it right.” AF No.
13.
Mr. Ward informed Ms. Lemons that he had handled the situation wrong and
apologized. AF No. 14. Mr. Ward filled out a statement as did the lady. AF No. 14.
Mr. Ward disagreed with the lady’s version of events. AF No. 15. Ms. Lemons gave
Mr. Ward a written warning on November 5, 2013. AF No. 16.
About November 11, 2013, Mr. Ward met with City’s Director of
Transportation, Meinrad Tabenqua (“Mr. Tabenqua”), as well as Ms. Lemons to
discuss the October incident. AF No. 17; (see also Doc. 1-2 (identifying “Meinrad
Tabenqua” as the City’s Director of Transportation”)). Mr. Ward shared with them
that he had been emotionally upset and not sleeping well. AF No. 17. During this
meeting, Mr. Ward asked about the mental health counseling benefit offered by the
City. AF No. 18. Mr. Tabenqua told him he would check and see if counseling were
available. AF No. 19. Mr. Ward later learned from Mr. Tabenqua that such benefits
were only available for full-time employees of the City. AF No. 22.
Shortly thereafter, Mr. Ward was laid off from his position as seasonal
employees customarily are, and, about a week later, on November 25, 2013, Mr.
Tabenqua called and told Mr. Ward that he would not be hired back for any seasonal
5

positions. AF No. 20. Later, in 2014, Mr. Ward went to Nick Hall (“Mr. Hall”), the
Director of Planning for the City and overseer of the City’s transportation department,
who told him that the risk management department had “redflagged” him because of
his anger and having a concern about “somebody like that working for us.” AF No.
21; (Doc. 23-10 at 1). According to Mr. Ward, Mr. Hall told him that because of Mr.
Ward’s status as a seasonal employee (i.e., already subject to not returning to
employment after layoff) the easiest thing for the City to do was to go forward with
the Mr. Ward’s layoff and then notify him that the City would not subsequently rehire him as a part-time bus driver. AF No. 24.
III.

STANDARDS
A.

Summary Judgment Generally

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 2265 (1986) (“[S]ummary
judgment is proper if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”) (internal quotation marks omitted). The party requesting summary
6

judgment always bears the initial responsibility of informing the court of the basis for
its motion and identifying those portions of the pleadings or filings that it believes
demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323,
106 S. Ct. at 2553. Once the moving party has met its burden, Rule 56(c) requires the
non-moving party to go beyond the pleadings in answering the movant.4 Id. at 324,
106 S. Ct. at 2553. By its own affidavits – or by the depositions, answers to
interrogatories, and admissions on file – it must designate specific facts showing that
there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
2510, 91 L. Ed. 2d. 202 (1986). All reasonable doubts about the facts and all
justifiable inferences are resolved in favor of the non-movant. Chapman v. AI
Transport, 229 F.3d 1012, 1023 (11th Cir. 2000). Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248, 106 S. Ct. at 2510. A dispute
is genuine “if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. If the evidence presented by the non-movant to rebut the

4

When Celotex was decided FED. R. CIV. P. 56(e) encompassed this express requirement,
but now this concept is covered by the language provided for under FED. R. CIV. P. 56(c).
7

moving party’s evidence is merely colorable, or is not significantly probative,
summary judgment may still be granted. Id. at 249, 106 S. Ct. at 2511.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citing United States v. Four Parcels of Real Property,
941 F.2d 1428, 1438 (11th Cir. 1991)). Once the moving party makes such an
affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
8

proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S. Ct. 2174, 2183, 135 L. Ed. 2d 606
(1996). The second method a movant in this position may use to discharge its burden
is to provide affirmative evidence demonstrating that the non-moving party will be
unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence sufficient to withstand a directed verdict
at trial on the material fact sought to be negated. Id.
B.

Disability Discrimination

Regarding establishment of a prima facie case of disability discrimination
under the ADA, the Eleventh Circuit has explained:
The ADA mandates that employers shall not discriminate against
“a qualified individual with a disability because of the disability of such
individual in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). The familiar burden-shifting analysis of Title VII
employment discrimination actions is equally applicable to ADA claims.
See Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir.
1996). Thus, Hilburn has the burden of proving a prima facie case of
disability discrimination by a preponderance of the evidence, which
requires a demonstration that she (1) is disabled, (2) is a qualified
individual, and (3) was subjected to unlawful discrimination because of
her disability. 42 U.S.C. §§ 12112(a); see Morisky v. Broward County,
9

80 F.3d 445, 447-49 (11th Cir.1996). Having concluded that Hilburn
had not established any genuine issue of a material fact relating to the
first prima facie factor of disability, the trial court did not address the
last two factors. See Hilburn, 17 F. Supp. 2d at 1383. Therefore, we will
limit our discussion to whether Hilburn can be considered disabled
within the meaning of the ADA.
The ADA defines a “qualified individual with a disability” as an
“individual with a disability 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).
Additionally, Hilburn must establish that Murata had actual or
constructive knowledge of the disability or considered her to be
disabled. Morisky, 80 F.3d at 448.
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226 (11th Cir. 1999)
(emphasis added).
The ADA defines a “disability” as:
(A) a physical or mental impairment that substantially limits one or more
of the major life activities of an individual;
(B) a record of such impairment; or
(C) being regarded as having such impairment.
42 U.S.C. § 12102(1).
The ADAAA broadens coverage under the ADA and provides in part that:
(A) The definition of disability in this chapter shall be construed in favor
of broad coverage of individuals under this chapter, to the maximum
extent permitted by the terms of this chapter.
(B) The term “substantially limits” shall be interpreted consistently with
10

the findings and purposes of the ADA Amendments Act of 2008.
(C) An impairment that substantially limits one major life activity need
not limit other major life activities in order to be considered a disability.
(D) An impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.
(E)(i) The determination of whether an impairment substantially limits
a major life activity shall be made without regard to the ameliorative
effects of mitigating measures such as–
(I) medication, medical supplies, equipment, or appliances,
low-vision devices (which do not include ordinary
eyeglasses or contact lenses), prosthetics including limbs
and devices, hearing aids and cochlear implants or other
implantable hearing devices, mobility devices, or oxygen
therapy equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or auxiliary aids or
services; or
(IV) learned behavioral or adaptive neurological
modifications.
42 U.S.C. § 12102(4)(A)-(E)(i).
The last stated purpose of the ADAAA calls for the EEOC to craft a less
demanding definition of the term “substantially limits”:
(6) to express Congress’ expectation that the Equal Employment
Opportunity Commission will revise that portion of its current
regulations that defines the term ‘substantially limits’ as ‘significantly
restricted’ to be consistent with this Act, including the amendments
11

made by this Act.
Pub. L. No. 110-325, 122 Stat. 3553, 3554 § 2(b)(6) (2008).
C.

Pro Se Filings

“Pro se pleadings are held to a less stringent standard than pleadings drafted
by attorneys and will, therefore, be liberally construed.” Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998) (citing Fernandez v. United States, 941
F.2d 1488, 1491 (11th Cir. 1991)). Accordingly, Mr. Ward’s allegations arising out
of his former employment with the City are not appropriately subject to dismissal
simply because they lack procedural precision or completeness in the context of Rule
8 of the Federal Rules of Civil Procedure.
At the same time “if a [pro se] plaintiff pleads merely conclusory allegations
[about his claims] and the defendant comes forward with affidavits setting out
specific facts showing [why he cannot prevail on those claims], plaintiff cannot defeat
summary judgment or dismissal for failure to state a claim by merely filing an
affidavit that restates the conclusory statements asserted in the complaint.” Perry v.
Thompson, 786 F.2d 1093, 1094 (11th Cir. 1986). Similarly, “[i]f material undisputed
facts show no cause of action or that summary judgment should be granted as a matter
of law, the case can be disposed of[,] [and] [a] plaintiff may not frustrate this process
by merely restating legal conclusions that he has alleged.” Id. at 1094-95. However,
12

any “specific facts” pled in a pro se plaintiff’s sworn complaint or affidavit must be
considered in opposition to summary judgment.5 Id. at 1095.
IV.

ANALYSIS
A.

The City’s Rule 56 Motion

The City describes Mr. Ward’s lawsuit as one involving a “claim that he is
disabled and [that he] was terminated for that reason, with the City not offering a
reasonable accommodation under the terms of the ADA.” (Doc. 29 at 6). Mr. Ward
does not dispute the City’s understanding of the claims at issue in this action and
similarly states in his amended complaint his belief that he “was discriminated against
because of [his] disability, in violation of the [ADA], as amended.” (Doc. 4 at 3). The
court discusses the merits of Mr. Ward’s disability-based discriminatory discharge
claim first.
1.

Mr. Ward’s Discriminatory Discharge Claim

The initial part of the City’s brief challenges Mr. Ward’s ability to show a
legally sufficient disability under the ADA to support his discriminatory discharge
claim. (Doc. 29 at 6).
In order to establish a prima facie case of discrimination under the
ADA, Cash must demonstrate that she (1) is disabled, (2) is a qualified

5

Although Mr. Ward signed his amended complaint (Doc. 4 at 3), it is not a verified (sworn)
pleading.
13

individual, and (3) was subjected to unlawful discrimination because of
her disability. See 42 U.S.C. § 12112(a); Gordon v. E.L. Hamm &
Assocs., Inc., 100 F.3d 907, 910 (11th Cir. 1996).
Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000). The ADA defines the first
element–proof of disability–as:
(A) a physical or mental impairment that substantially limits one or more
of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in
paragraph (3)).
42 U.S.C. § 12102(1).6
Mr. Ward’s amended complaint lacks clarity as to which of these disability
prongs he contends are applicable in his case. Accordingly, it is appropriate to
analyze the merits of each one. See Cash, 2331 F.3d at 1305 (“Cash did not clearly
articulate which of the three statutory definitions of disability she was proceeding
under, so we will examine each in turn.”).
Mr. Ward premises his disability claim upon his diagnosis of depression in July
of 2012. The City does not dispute the existence of this impairment. Instead, it
contends that Mr. Ward “has failed to specify a major life activity that he is

6

Before the passage of the ADAAA, this language was previously codified at 42 U.S.C.
§ 12102(2). See Cash, 231 F.3d at 1305 (quoting same language with citation to § 12102(2)).
14

substantially limited in, and . . . fail[ed] to point to any other evidence of an
impairment limiting one or more major life activities.” (Doc. 29 at 7). As the Eleventh
Circuit discussed in Cash, the documented diagnosis of one or more impairments is
insufficient for meeting the definition of disability under either § 12102(1)(A) or
§ 12102(1)(B) of the ADA:
It is not disputed that Cash suffers from a number of medical conditions
that could each be regarded as impairments. The question, however, is
whether these impairments substantially limit one or more major life
activities. We are guided on this issue by the regulations promulgated
by the Equal Employment Opportunity Commission, which state that
“[m]ajor [l]ife [a]ctivities means functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.” 29 C.F.R. § 1630.2(i).
231 F.3d at 1305 (emphasis added).
The City is correct that Mr. Ward has not expressly identified a major life
activity that has been substantially limited by his depression. In the opening
paragraph of his opposition, Mr. Ward counters the City’s Rule 56 Motion by
referring only to his medical diagnosis and treatment:
I disagree with Attorney Howard’s statement that I don’t have a
disability. I do not believe Mr. Howard has the qualifications necessary
to make that judgment. I have been treated for depression by the VA
since 2012.
(Doc. 31 at 1).
Nonetheless, keeping in mind his pro se status, the court concludes that a
15

reasonable reading of Mr. Ward’s filings suggests that he is implicitly relying upon
working as his requisite major life activity.7 Even so, the record lacks sufficient
evidence for a jury to reasonably conclude that Mr. Ward’s depression substantially
limited him in his ability to perform work as the EEOC has defined that concept
within its post-ADAAA final regulations. More specifically, 29 C.F.R.
§ 1630.2(j)(1)(ii) states:
An impairment is a disability within the meaning of this section if it
substantially limits the ability of an individual to perform a major life
activity as compared to most people in the general population. An
impairment need not prevent, or significantly or severely restrict, the
individual from performing a major life activity in order to be
considered substantially limiting. Nonetheless, not every impairment
will constitute a disability within the meaning of this section.
Id. (emphasis added).
For example, there is no record of Mr. Ward’s missing a substantial amount of
work as compared to most other people because of his depression or being disciplined
substantially more than others due to missed days attributable to his treatment for
depression. Indeed, as Mr. Ward pointed out in his opposition, “[a]lthough struggling
with depression; my job became even more important to me and I looked forward to
7

The Cash court noted that the United States Supreme Court, in Sutton v. United Air Lines,
Inc., 527 U.S. 471, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999), expressed doubt about whether major
life activities should include work. 231 F.3d at 1306 n.7. Nonetheless, the Eleventh Circuit saw no
reason to reconsider its history of “entertaining such arguments . . . .” Id. Sutton was ultimately
superseded by the ADAAA and, post-ADAAA, major life activities are statutorily defined to
expressly include working. 42 U.S.C. § 12102(2)(A).
16

the companionship of my fellow employees and my special clients.” (Doc. 31 at 2).
While Mr. Ward did occasionally miss work to see his VA doctor, there is no
indication that these missed days substantially impacted his overall ability to perform
his job as compared to other people or even that those missed days led to his
discharge.
Therefore, the court agrees with the City that Mr. Ward has not established
disability under § 12102(1)(A) because he has not adduced sufficient evidence from
which a reasonable jury could conclude that he was substantially limited in the major
life activity of working at the time of his discharge. The court similarly rules that Mr.
Ward has not adduced sufficient evidence showing a record of such an impairment
to meet § 12102(1)(B). In reaching this conclusion, the court acknowledges that
under “the rules of construction [to] apply when determining whether an impairment
substantially limits an individual in a major life activity[,]” “‘[s]ubstantially limits’
is not meant to be a demanding standard” and that “the term . . . shall be interpreted
and applied to require a degree of functional limitation that is lower than the standard
for ‘substantially limits’ applied prior to the ADAAA.” 29 C.F.R. § 1630.2(j)(1)(i),
(iv). However, at the same time, the statute still requires some degree of limitation in
a major life activity in order for a plaintiff to be covered by § 12102(1)(A) or
§ 12102(1)(B) and, in this instance, Mr. Ward simply has not met this minimal
17

threshold. Accordingly, the City’s Rule 56 Motion is due to be granted to the extent
that Mr. Ward relies upon § 12102(1)(A) or § 12102(1)(B) in conjunction with the
major life activity of working to meet the prima facie element of disability.
The regarded-as prong is a more complicated inquiry. “The final question . . .
is whether [Mr. Ward] presented evidence that [the City] ‘regarded’ h[im] as having
an impairment . . . .” Cash, 231 F.3d at 1306. The sole case that the City relies upon
to show that Mr. Ward is not covered by the regarded-as prong is Cash. (Doc. 29 at
7). The Cash opinion, however, predates the ADAAA, which significantly
transformed the regarded-as definition and made it much easier for a plaintiff to
prima facially fit into this third disability category because proof that an employer
perceives the plaintiff to be limited in a major life activity is no longer required:
(3) Regarded as having such an impairment
For purposes of paragraph (1)(C):
(A) An individual meets the requirement of “being
regarded as having such an impairment” 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.
(B) Paragraph (1)(C) shall not apply to impairments that
are transitory and minor. A transitory impairment is an
impairment with an actual or expected duration of 6
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months or less.
42 U.S.C. § 12102(3) (emphasis by underlining added); compare id., with Cash, 231
F.3d at 1306 (“In order for Cash to establish that APCO regarded her as substantially
limited in her ability to work, she must prove that APCO considered her as
‘significantly restricted in the ability to perform either a class of jobs or a broad range
of jobs in various classes as compared to the average person having comparable
training, skills, and abilities.’” (quoting pre-ADAAA version of 29 C.F.R. §
1630.2(j)(3)(i))). The City provides no analysis of whether Mr. Ward has met the
regarded-as prong as redefined by the ADAAA and nakedly and incorrectly asserts
that Mr. Ward’s prima facie case fails because he has not shown “that he has been
‘regarded’ as having . . . an impairment” limiting a major life activity. (Doc. 29 at 6).
Therefore, the Rule 56 Motion is due to be denied as undeveloped with respect to Mr.
Ward’s reliance upon § 12102(1)(C) to meet his prima facie case.
The second prima facie challenge raised by the City is tied to the affidavit
testimony provided by the City’s Planning Director, Mr. Hall. (Doc. 29 at 7-8); (see
also Doc. 23-10 at 3-4 (discussing Mr. Hall’s lack of knowledge about Mr. Ward’s
suffering from an impairment or disability when he made the decision not to return
Mr. Ward to temporary/seasonal employment with the City). Mr. Ward was the
person who “decided that it was in the best interest of the City to not have Mr. Ward
19

to return as a seasonal employee in the future” (Doc. 23-10 at 2) after learning about
the admitted “verbal confrontation” Mr. Ward had had with a member of the public
after being “involved in a minor collision.” (Id. at 1, 2). In his affidavit, Mr. Hall
affirms that he “was made aware of no disability or impairment suffered by Mr. Ward,
nor of any requests that the City accommodate such a disability or impairment.” (Doc.
23-10 at 3-4). Mr. Hall further swears that he did not “perceive [Mr. Ward] to have
such a disability or impairment.” (Doc. 23-10 at 4).
In light of the above undisputed evidence, the City contends that Mr. Ward’s
prima facie case fails because, when Mr. Hall “made his decision about [Mr. Ward]
not coming back, he knew of no disability or impairment, nor of any accommodation
requests for any such disability or impairment . . . . [and] [Mr. Ward] has offered
nothing to the contrary.” (Doc. 29 at 7-8). Unhelpfully, the City cites to no authority
for the proposition that an ADA plaintiff must have sufficient evidence of a
decisionmaker’s awareness of an impairment prior to taking an adverse employment
action to establish a prima facie case of disability discrimination. This court has,
however, found controlling authority on the issue. See Cordoba v. Dillard’s, Inc., 419
F.3d 1169, 1175 (11th Cir. 2005) (recognizing that “an employer cannot be liable
under the ADA for firing an employee when it indisputably had no knowledge of the
disability[.]” (internal quotation marks omitted) (quoting Morisky v. Broward Co., 80
20

F.3d 445, 448 (11th Cir. 1996) (alteration omitted) (quoting in turn Hedberg v.
Indiana Bell Telephone Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995))); see also
Cordoba, 419 F.3d at 1175 (recognizing unpublished panel’s rejection of constructive
knowledge theory to satisfy prima facie element of decisionmaker’s prior awareness);
id. at 1185 (“Once the issue is framed clearly, it is evident that an employee cannot
be fired ‘because of’ a disability unless the decisionmaker has actual knowledge of
the disability.”). Therefore, the City’s Rule 56 Motion is due to be granted as to its
alternative prima facie challenge of Mr. Ward’s discriminatory discharge claim–Mr.
Hall’s lack of actual awareness.8
2.

Mr. Ward’s Failure
Accommodate Claim

To

Reasonably

As analyzed above, the court has accepted for the purposes of the City’s Rule
56 Motion that Mr. Ward is covered by the regarded-as definition of disability, but
not the other two categories. As a consequence of Mr. Ward’s coverage limited to
§ 12102(1)(C), to the extent he has asserted a separate claim against the City for
failing to provide him with a reasonable accommodation, he is statutorily precluded
from pursuing such a claim as a result of changes provided for under the ADAAA.
In particular, the reasonable accommodations and modifications subpart clarifies:

8

The City’s Rule 56 Motion does not develop a pretext challenge to Mr. Ward’s
discriminatory discharge claim.
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A covered entity under subchapter I, a public entity under subchapter II,
and any person who owns, leases (or leases to), or operates a place of
public accommodation under subchapter III, need not provide a
reasonable accommodation or a reasonable modification to policies,
practices, or procedures to an individual who meets the definition of
disability in section 12102(1) of this title solely under subparagraph (C)
of such section.
42 U.S.C. § 12201(h) (emphasis added); see also 29 C.F.R. § 1630.2(o)(4) (“A
covered entity . . . is not required to provide a reasonable accommodation to an
individual who meets the definition of disability solely under the ‘regarded as’ prong
(paragraph (g)(1)(iii) of this section).”).
Alternatively, the court agrees with the City that Mr. Ward has not shown how
a request for mental health benefits through the City (which he was not automatically
eligible to receive because of his part-time status) “was specific enough to constitute
a demand for a reasonable accommodation[,]” especially when Mr. Ward was eligible
for and already was receiving mental health counseling from the VA. (Doc. 29 at 9).
Therefore, the City’s Rule 56 Motion is due to be granted on Mr. Ward’s reasonable
accommodation claim for these two independent reasons.
B.

The City’s Strike Motion

The City’s Strike Motion seeks an order striking both of Mr. Ward’s responses
to its rebriefed Rule 56 Motion as untimely. (Doc. 32 at 1); (see also Doc. 28 at 5
(setting out schedule for parties to rebrief the City’s Rule 56 Motion)). Alternatively,
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the City requests that the court “strike particular portions of the . . . response[s].” Id.
Given that Mr. Ward is representing himself and that he missed his filing deadline of
October 19, 2016, by less than 30 days, the court has accepted and considered both
oppositions to the Rule 56 Motion and the first part of the City’s Strike Motion is due
to be denied.
As for the City’s alternative request, the court concludes that Mr. Ward’s ADA
lawsuit substantively fails with or without considering those portions of his responses
that are specifically challenged by the City. Accordingly, the remainder of the Strike
Motion is due to be termed as moot.
V.

CONCLUSION
As a result of the above analysis, the City’s Rule 56 Motion is due to be

granted in part and denied in part. Further, the City’s Strike Motion is due to be
denied in part and otherwise termed as moot. Finally, in the absence of any pending
claims remaining, the court will enter a separate final judgment order dismissing Mr.
Ward’s lawsuit with prejudice.
DONE this the 13th day of February, 2017.

VIRGINIA EMERSON HOPKINS
United States District Judge

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