Gardner v. Northport, City of
MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 6/7/2018. (PSM)
2018 Jun-07 AM 10:32
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
DERRICK ELLIS GARDNER,
CITY OF NORTHPORT,
MEMORANDUM OF OPINION
Before this Court is Defendant’s Motion for Summary Judgment. (Doc. 33.)
Plaintiff Derrick Ellis Gardner sued Defendant City of Northport for disability
discrimination under the Americans with Disabilities Act of 1990 (“ADA”), 42
U.S.C. § 12101, et seq. and under the Rehabilitation Act of 1973, 29 U.S.C. § 701, et
seq.; and for race discrimination in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. Defendant has moved for summary judgment on
all of Plaintiff’s claims. (Doc. 25.)1 The issues raised in Defendant’s Motion for
Summary Judgment have been briefed by both parties and are now ripe for review.
Upon full consideration of the legal arguments and evidence presented,
Defendant had previously filed a Motion to Dismiss Complaint, or in the Alternative, for
Summary Judgment, (doc. 20), which argues that Plaintiff’s Complaint is due to be dismissed on
the basis of judicial estoppel. Because the Court finds Defendant’s Motion for Summary
Judgment is due to be granted, it does not reach whether Plaintiff’s Complaint should be
dismissed on this alternate ground.
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Defendant’s Motion for Summary Judgment will be granted and this action
Plaintiff was a police officer at the City of Northport Police Department, and
began his employment there in 1999. By all accounts Plaintiff was an excellent
police officer who performed his job admirably and got along with his coworkers.
However, Plaintiff suffered a number of health problems that affected his ability to
perform his police officer duties. Most important to this action, Plaintiff has
suffered from type two diabetes since 1995.
Due to complications from his diabetes, Plaintiff suffered a hemorrhage in
his right eye on April 18, 2014. Plaintiff went to see his retinal specialist Dr.
Matthew Oltmanns (“Dr. Oltmanns”) on April 21, 2014. Dr. Oltmanns noted
during the visit that Plaintiff should not drive or go to work in his current state, and
that Plaintiff should return a week later to see if his condition improved.
Apparently, Plaintiff’s condition did not improve within the next week, as Dr.
Oltmanns performed two surgeries on Plaintiff’s right eye on April 30 and June 18,
2014. Following the June 18th surgery, Dr. Oltmanns indicated that Plaintiff should
not perform heavy lifting, bending, or straining and that Plaintiff should not return
to work “at this time.”
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During the initial period of Plaintiff’s illness, he used accumulated paid leave
to cover his absences. This individual paid leave lasted approximately a month.
Defendant’s leave policy also allowed for so-called “donated leave,” where
employees that had accumulated unused paid leave could “donate” that unused
leave voluntarily to another employee. Certain coworkers donated approximately
five (5) weeks under Defendant’s policy, allowing Plaintiff to remain on paid leave
until mid-June 2014.
In May 2014, Plaintiff also submitted an application for FMLA leave. The
Defendant chose to construe Plaintiff’s twelve-week FMLA leave period as
beginning to run only after his paid leave had expired. Thus, according to
Defendant, the FMLA unpaid-leave period began to run June 18, 2014 until it
expired on September 11, 2014. On September 4, 2014, Dr. Oltmanns noted that
Plaintiff’s right eye “will be a challenge—could be multiple surgery process. . . .
This will be a long process.” (Doc. 33 ¶ 31.) Plaintiff was not cleared to return to
work on September 11, 2014.
Because Plaintiff was not allowed to return to work at the expiration of his
FMLA leave on September 11, 2014, then City Administrator Scott Collins
(“Collins”) instructed HR Director Joseph Rose (“Rose”) to grant Plaintiff
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additional time off to recover. Plaintiff had another appointment with Dr.
Oltmanns on September 18, 2014.
On September 18, 2014, Plaintiff sent Rose an email stating that Plaintiff was
not yet cleared to return to work, and would need another surgery on his eye for
October 15, 2014 and “at least 3-4 weeks” to recover. (Id. ¶ 34.) In response, Rose
informed Collins of this additional request for leave. Collins asked Rose to contact
Plaintiff and to meet in person to discuss how much time Plaintiff would need to
return to work. Collins 2 and Rose met with Plaintiff and his wife on September 24,
2014, where Plaintiff told Collins and Rose that he was having trouble contacting
Dr. Oltmanns’ office for a clear answer, but that he had an appointment with Dr.
Oltmanns the following day on September 25, 2014. Collins approved another
extension for Plaintiff until October 6, 2014 to get his needed medical
documentation releasing him to work.
Plaintiff received a “return-to-work” note from Dr. Oltmanns on September
25, 2014, and Plaintiff gave that note to Rose on the same day. The note stated in
Our patient, Derrick Gardner, is released back to work with no
physical restrictions until October 15, 2014. His visual acuities are
20/50 RIGHT eye, and HAND MOTION in the LEFT eye.
Plaintiff disputes that Collins was at this meeting; whether Collins was present at that meeting
ultimately has no bearing on Plaintiff’s discrimination claim.
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(Id. ¶ 38.) Upon receipt of the letter, Rose was unsure of the meaning of “HAND
MOTION” on the note. He decided to send the note to Dr. Peter Casten (“Dr.
Casten”), an occupational medical specialist at DCH Hospital, to schedule a
fitness-for-duty test for Plaintiff.
Dr. Casten reviewed the note sent to him by Rose, and called Dr. Oltmanns
to directly speak to him about the vision requirements for a police officer and
Plaintiff’s vision. During that talk, the two doctors agreed that Plaintiff’s current
vision did not meet the Defendant’s requirements to be a police officer. In his chart
notes for September 25, 2014, Dr. Oltmanns wrote:
Spoke with Dr. Casten at DCH (Occ. Health), based on patient’s
current VA’s [visual acuities], he will not recommend patient
continue normal work as police officer. I agree with this assessment.
Patient should not be active duty police at this time.
(Id. ¶ 42 (underline in original).) Dr. Casten subsequently sent Rose a letter stating
“[Plaintiff] does not meet visual requirements for a police officer until further
notice.” (Id. ¶ 40.) In addition to the note, Dr. Casten’s office called Rose to
inform him there was no need to schedule a fitness-for-duty test for Plaintiff.
Dr. Oltmanns then met with Plaintiff on October 9, 2014 for a follow-up
Dr. Oltmanns’ note from that appointment stated that he
“anticipat[ed] multiple surgeries for [Plaintiff’s] left eye with silicone oil” and that
he would have “significant postoperative hemorrhage that will need to be dealt
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with.” (Doc. 34-1 Ex. A Def. Ex. 17.) It was Dr. Oltmanns’ opinion that even after
multiple surgeries it would be unclear whether Plaintiff’s vision would improve.
(Doc. 34-1 Ex. A Def. Ex. 17.)
Because of the medical opinions provided by Dr. Casten and Oltmanns that
Plaintiff was unable to return to work within a finite period, Collins determined to
terminate Plaintiff’s employment. Plaintiff and his wife met with Collins, Rose, and
Chief of Police Burton on October 10, 2014. In that meeting, Collins told Plaintiff
that he would not be able to work for Defendant any more. Collins also gave
Plaintiff a letter outlining what Collins believed to be the accommodations
previously given to Plaintiff, including not running the twelve-week FMLA period
concurrently with Plaintiff’s paid leave and the extra time given to Plaintiff after
the expiration of the statutorily mandated FMLA period. Collins explained that
Defendant was terminating Plaintiff’s employment because Plaintiff had been
unable to work for over five months and would need at least two more months for
additional surgeries to his right eye. Collins additionally stated that at the
conclusion of those surgeries it was not certain that Plaintiff’s vision would even
have improved to the point where it needed to be. After giving Plaintiff these
reasons, Collins asked Plaintiff if he had any questions. Plaintiff said that he did not.
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While Plaintiff had the right to appeal his termination to the Northport Civil
Service Board, there is no record of an appeal. On December 8, 2014, Plaintiff filed
an EEOC charge alleging violations of Title VII and the ADA. Following its
investigation, on September 19, 2015, the EEOC found cause to believe that
Defendant violated Plaintiff’s rights under the ADA. The parties attempted
conciliation on October 20, 2015, but were unable to resolve their differences. On
May 24, 2016, the EEOC issued Plaintiff the right to sue notice. Plaintiff filed his
Complaint in this action on August 10, 2016.
A motion for summary judgement is appropriate when “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). A fact is “material” if it
“might affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); see also Ave. CLO Fund, Ltd. v. Bank of Am.,
N.A., 723 F.3d 1287, 1294 (11th Cir. 2013). A genuine dispute as to a material fact
exists “if the nonmoving party has produced evidence such that a reasonable
factfinder could return a verdict in its favor.” Greenberg v. BellSouth
Telecommunications, Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Waddell v.
Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001)). The trial judge
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should not weigh the evidence but must simply determine whether there are any
genuine issues to be resolved at trial. Anderson, 447 U.S. at 249.
In considering a motion for summary judgment, trial courts must give
deference to the non-moving party by “view[ing] the materials presented and all
factual inferences in the light most favorable to the nonmoving party.” Animal
Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1213–14 (11th Cir. 2015)
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)). However,
“unsubstantiated assertions alone are not enough to withstand a motion for
summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir.
1987). Conclusory allegations and “mere scintilla of evidence in support of the
nonmoving party will not suffice to overcome a motion for summary judgment.”
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016) (per curiam) (quoting Young
v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th Cir. 2004)). “[T]he moving party
has the burden of either negating an essential element of the nonmoving party’s
case or showing that there is no evidence to prove a fact necessary to the
nonmoving party’s case.” McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236,
1242 (11th Cir. 2013). Although the trial courts must use caution when granting
motions for summary judgment, “summary judgment procedure is properly
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regarded not as a disfavored procedural shortcut, but rather as an integral part of
the Federal Rules as a whole.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Plaintiff claims that Defendant violated the ADA, Rehabilitation Act, and
Title VII when it terminated him from his position rather than giving him a lightwork accommodation. The Eleventh Circuit applies “the burden-shifting analysis
of Title VII employment discrimination claims” to ADA discrimination claims as
well as Rehabilitation Act claims. Holly v. Clairson Indus., L.L.C., 492 F.3d 1247,
1255 (11th Cir. 2007) (ADA claims); Durley v. APAC, Inc., 236 F.3d 651, 657 (11th
Cir. 2000) (McDonnell Douglas framework applies to ADA disability discrimination
claims); Sutton v. Lader, 185 F.3d 1203, 1208 n.5 (11th Cir. 1999). Under McDonnell
Douglas, the plaintiff carries the initial burden of producing circumstantial evidence
sufficient to prove a prima facie case of discrimination. McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973); see also Schoenfeld v. Babbitt, 168 F.3d 1257, 1267
(11th Cir. 1999). If the plaintiff meets his initial burden of establishing a prima facie
case, the burden of production shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Trask v. Sec’y, Dep’t
of Veterans Affairs, 822 F.3d 1179, 1191 (11th Cir. 2016), cert. denied sub nom. Trask
v. Shulkin, 137 S. Ct. 1133, 197 L. Ed. 2d 176 (2017). If the defendant is successful,
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“the burden shifts back to the plaintiff to produce evidence that the employer’s
proffered reasons are a pretext for discrimination.” Id. (quoting Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010)).
1. PRIMA FACIE CASE OF DISABILITY DISCRIMINATION
THE ADA AND REHABILITATION ACT
“In order to establish a prima facie case of discrimination under the ADA, a
plaintiff must demonstrate that [he] (1) is disabled, (2) is a qualified individual, and
(3) was subjected to unlawful discrimination because of [his] disability.” Greenberg
v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (quoting Cash v.
Smith, 231 F.3d 1301, 1305 (11th Cir. 2000)); Sutton, 185 F.3d at 1207 (To establish
a prima facie case under the Rehabilitation Act, the Plaintiff must show that he has
a disability, is otherwise qualified, and was subjected to unlawful discrimination as
the result of his disability.). “This standard derives from the ADA’s language,
stating that ‘no [employer] shall discriminate against a qualified individual with a
disability because of the disability of such an individual.’” Greenberg, 231 F.3d at
1305 (quoting 42 U.S.C. § 12112(a)). While Defendant does not address whether
Plaintiff is “disabled”, it contends that Plaintiff cannot satisfy his burden to show
that he is a “qualified individual” under the ADA.
In order to be a qualified individual under the ADA or Rehabilitation Act,
Plaintiff must be able to show that he could perform the functions of his job with or
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without reasonable accommodation. Lucas v. W. W. Grainger, Inc., 257 F.3d 1249,
1255 (11th Cir. 2001); see also D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1229
(11th Cir. 2005) (An ADA plaintiff “must show either that he can perform the
essential functions of his job without accommodation, or, failing that, show that he
accommodation.”(quoting Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305
(11th Cir. 2000))). “An accommodation is reasonable, and thus required under the
ADA, only if it allows the employee to perform the essential functions of the job.”
Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). If the individual “is
unable to perform an essential function of his . . . job, even with an accommodation,
he is, by definition, not a ‘qualified individual’ and, therefore, not covered under
the ADA. In other words, the ADA does not require [the employer] to eliminate an
essential function of [the plaintiff’s] job.” D’Angelo, 422 F.3d at 1229 (quoting
Davis, 205 F.3d at 1305).
It is clear from the undisputed facts of this case that Plaintiff was unable to
perform the essential functions of being a police officer without an accommodation.
Under 29 C.F.R. § 1630.2(n) 3, the essential functions of a job include “the
fundamental job duties of the employment position the individual with a disability
Congress provided the EEOC authority to issue implementing regulations, including
§ 1630.2(n), to carry out the ADA. 42 U.S.C. § 12116.
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holds or desires,” without paying attention to the marginal functions of the
position. Evidence of whether a particular job function is essential includes, but is
not limited to factors such as:
(i) The employer’s judgment as to which functions are essential;
(ii) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(iii) The amount of time spent on the job performing the function;
(iv) The consequences of not requiring the incumbent to perform the
29 C.F.R. § 1630.2(n)(3)(i-iv).
It is undisputed that to be a police officer employed by Defendant, Plaintiff
had to take and pass a firearms and driving test annually. Likewise, in the written
job descriptions for police officers provided to Northport police officers, the job
description sets out a requirement for physical characteristics such as:
See well enough to operate a firearm safely and accurately.
See well enough to read small print on driver’s licenses.
Effectively operate a motor vehicle, firearm, radio, and other police
Have the ability to move quickly in emergency situations.
Physical abilities to exercise self-defense techniques.
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(Doc. 34-1 Ex. A Def. Ex. 17.) Defendant’s job requirements place a heavy
emphasis on the ability to see well enough to use a firearm and operate a vehicle.
There does not appear to be a dispute between the parties that the ability to use a
firearm and operate a police vehicle in emergency defensive maneuvers constitutes
an essential function of being a police officer. (See Doc. 34-1 Gardner Depo. at 124125 (“Q: . . . difficulty in use of firearm, reading small print, possibly reacting to
self-defense situations; no heavy lifting, bending or straining. . . . Are each of those
functions essential job functions [of a law enforcement officer for the City of
Northport?] A: Yes.”).
There is also no dispute that Dr. Casten was of the opinion that Plaintiff
could not safely operate a firearm or vehicle with monocular vision and that from
2014 until the present Plaintiff had monocular vision in his left eye. (Doc. 37 at 11.)
As Plaintiff points out, a September 25, 2014, note from Dr. Oltmanns to Rose
stated that Plaintiff could return to work until October 15, 2014, but had “HAND
MOTION” in the left eye. (Doc. 33 ¶ 38.) After Dr. Casten reviewed Dr.
Oltmanns’ note and consulted with Dr. Oltmanns, both doctors jointly concluded
that Plaintiff could not meet the vision requirements to be a police officer.
Although Dr. Oltmanns may have initially believed Plaintiff was able to return to
work, he apparently determined that his earlier note was incorrect.
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While Plaintiff partially argues that Dr. Oltmanns’ earlier return-to-work
note shows that he was able to perform the essential functions of being a police
officer, Plaintiff also argues that “based on his own extensive observation and
experience, . . . he could safely operate a firearm and a vehicle.” (Doc. 37 at 11.)
This self-assessment appears to be based on Plaintiff’s ability “to read the
newspaper.” (Id.) Plaintiff’s beliefs or allegations concerning his own performance
and ability are not connected to any admissible evidence, but appear to simply be
allegations recast as Plaintiff’s own, lay opinion. Other than these allegations,
“[Plaintiff] offers no expert opinion that counters Dr. Casten’s opinion.” (Id.)
In Alexander v. Northland Inn, 321 F.3d 723 (8th Cir. 2003), the Eighth
Circuit rejected an ADA plaintiff’s argument that she could perform an essential
function of her job, vacuuming, despite her physician’s written conclusion to the
contrary. Id. at 727. Alexander held that:
[Employer] was entitled to rely and act upon the written advice from
[employee’s] physician that unambiguously and permanently
restricted her from vacuuming. In this situation, the employee’s belief
or opinion that she can do the function is simply irrelevant. The ADA
does not require an employer to permit an employee to perform a job
function that the employee’s physician has forbidden.
Id. Reading the newspaper and operating a firearm or vehicles are different actions
completely, and even if Plaintiff’s own beliefs about his abilities were relevant, his
ability to read the newspaper does not equate to his ability to perform the essential
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functions of his job. Nor does it matter that Plaintiff was terminated before being
given the qualifications test for operation of a firearm or vehicle, as both Dr. Casten
and Dr. Oltmann were of the opinion he could not safely perform those activities.
Plaintiff cites no authority for the proposition that Defendant was required to give
him qualifications tests in lieu of relying on the opinions of Dr. Casten and
Plaintiff’s belief of his own abilities concerning essential police duties are
important to put in the context of the treatment for his chronic vision problems.
Even if Plaintiff’s own self-assessed ability to operate a firearm and vehicle actually
reflected his condition in late September and early October, Plaintiff was unable to
return to work after the final extension of his FMLA leave on October 6, 2014.
(Doc. 33 at ¶ 37.) On October 9, 2014, Dr. Oltmanns met with Plaintiff, and his
doctor’s note stated that Dr. Oltmanns “anticipat[ed] multiple surgeries for
[Plaintiff’s] left eye” and that even with multiple surgeries it would be unclear
whether Plaintiff’s vision would be improved. (Doc. 34-1 Ex. A Def. Ex. 17.)
Indeed, Plaintiff had another scheduled surgery on October 15, 2014, with 3-4
weeks recovery time and no assurance that even after recovery he would be able to
return to work. (Id. ¶ 43.) Even if Plaintiff was able to perform the essential
functions of a police officer on the date of his termination—which he was not—he
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would have not been able to stay at work for more than five days, where he would
again have to take an indefinite leave of absence for his surgery.
Plaintiff alternatively argues that he would be able to perform his duties as a
police officer if he was given reasonable accommodation in the form of “light
work.” As this Court has stated previously:
“[T]he duty to provide a reasonable accommodation is not triggered
unless a specific demand for an accommodation has been made.”
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th
Cir. 1999). Instead, the plaintiff must show that [he] actually
demanded an accommodation of [his] disability from the employer and
was refused. Gaston, 167 F.3d at 1363–64; Branscomb v. Secretary of
Navy, 461 Fed. App’x 901, 905 (11th Cir. 2012); Knowles v. Sheriff,
460 Fed. App’x 833, 835–36 (11th Cir. 2012); see also Schwarz v. City of
Treasure Isl., 544 F.3d 1201, 1219 (11th Cir. 2008) (“The duty to make
a reasonable accommodation does not simply spring from the fact that
the [plaintiff] wants such an accommodation made.” (quoting
Prindable v. Association of Apt. Owners, 304 F.Supp.2d 1245, 1258 (D.
Flowers v. City of Tuscaloosa, No. 7:11-CV-01375-JEO, 2013 WL 625324, at *11
(N.D. Ala. Feb. 14, 2013). Plaintiff identifies multiple instances when Defendant
provided “light work” accommodations to other employees at the Northport
Police Department. However, the parties’ undisputed facts show that Plaintiff
never requested a reasonable accommodation, and because he did not do so
Defendant was under no obligation under the ADA to provide such an
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Plaintiff argues that a conversation he had with Assistant Chief Burton
constitutes a request for an accommodation under the ADA. According to Plaintiff:
When Officer Gardner suffered his heart attack, then Assistant Chief
Burton met him at his house and they discussed any request for “light
duty.” Officer Gardner understood this conversation to be that if he
requested light duty and if then Chief Card granted him light duty,
that Chief Card would be fired by then City Administrator Collins.
Out of loyalty to Chief Card, Officer Gardner did not request light
duty. Within a few months, Officer Gardner’s vision issues arose and
due to this previous incident, Officer Gardner did not request light
duty in order to prevent problems with Chief Card.
(Doc. 37 at 16-17 (citations omitted).) Specifically, after Plaintiff suffered the
hemorrhage in his left eye, he prepared a letter to submit to formally request an
accommodation in the form of light duty. After consideration of the difficulty the
request would create for his superior, Plaintiff did not submit the letter. (Doc. 34-1
at 88.) The Court understands that Plaintiff was told by his superiors that the
Chief of Police would be fired for requesting light duty, and that he was apparently
put in the situation where he needed to choose either his personal interests or that
of the Chief of Police. Plaintiff still was free to request an accommodation, despite
the no-win situation that he felt he faced. Plaintiff’s knowing choice to not request
an accommodation shows his loyalty to his friend, but it likewise shows that he was
not inhibited from requesting light duty. Because Plaintiff did not request an
accommodation, Defendant was not required to provide him with one.
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Even if Plaintiff had requested a “light work” accommodation, such as those
given to other police officers in the past, Plaintiff’s disability would have prevented
him from performing the essential functions of being a police officer. Plaintiff has
pointed to a number of male and female police officers who were given “light
work” accommodations. Male officers Anthony Parker, Darrin Miller, Drew
Wallace, and Scottie Dalton were all given light work accommodations such as
working at the intake desk or records section of the police department. Each of
these officers was still able to carry and operate their police firearm and drive a
vehicle (Doc. 33 ¶ 61-62.) Likewise, female officers Carrie Summers, Ashley Hogg,
and Vanessa Blaylock were given light work accommodations, but still could carry
and operate their firearms and perform all other police duties. (Id. ¶ 68-70.) Even if
Plaintiff was given a “light work” accommodation as he argues he should have
been, there was no way he could have performed the essential functions of being a
police officer when he could not safely operate a firearm or vehicle.
Plaintiff has failed to show that he was a “qualified individual” under the
ADA because he could not perform the essential functions of being a police officer
with or without accommodation, and has thus not made his prima facie case under
the ADA or Rehabilitation Act. These claims are thus due to be dismissed.
2. PRIMA FACIE CASE OF RACE DISCRIMINATION
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To establish a prima facie case of race discrimination under a single-motive,
pretext theory, Plaintiff must show that “(1) [he] is a member of a protected class;
(2) [he] was subjected to an adverse employment action; (3) [his] employer treated
similarly situated employees outside of [his] protected class more favorably than
[he] was treated; and (4) [he] was qualified to do the job.” Trask, 822 F.3d at 1192
(quoting Burke–Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006) (per
curiam)). Specifically with respect to Plaintiff’s burden to show that he was
qualified for the position from which he was terminated, “a Title VII plaintiff need
only show that he or she satisfied an employer’s objective qualifications.” Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005). Objective qualifications
can be established by “evidence that is objectively verifiable and either easily
obtainable or within the plaintiff’s possession.” Id. (emphasis in original).
Examples of objective qualifications include education, years of experience, and
state certification levels, where an example of subjective criteria would be whether
a plaintiff lacks the employer’s preferred leadership style for the position. Id. at
As with Plaintiff’s ADA claim, Plaintiff’s Title VII race discrimination claim
fails because at the time of the adverse action—Plaintiff’s termination—he was not
qualified to perform his duties as a police officer. The conclusions of Plaintiff’s
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physicians about Plaintiff’s ability to operate a firearm and vehicle and Plaintiff’s
inability to return to work at the time of his firing are equally applicable to his Title
Nor can Plaintiff identify any similarly situated comparators. “To make a
comparison of the plaintiff’s treatment to that of non-minority employees, the
plaintiff must show that he and the employees are similarly situated in all relevant
respects.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (citations omitted).
If this is not the case, “the different application of workplace rules does not
constitute illegal discrimination.” Lathem v. Dep’t of Children & Youth Servs., 172
F.3d 786, 793 (11th Cir. 1999) (citing Nix v. WLCY Radio/Rahall Commc’ns, 738
F.2d 1181, 1186 (11th Cir. 1984)). In order to be considered “similarly situated,”
the compared employees must have been “involved in or accused of the same or
similar conduct,” yet “disciplined [or treated] in different ways” for that conduct.
Holifield, 115 F.3d at 1562 (citations omitted). The Eleventh Circuit utilizes a
“nearly identical” standard to determine whether the conduct and respective
treatment of two employees are sufficiently similar for establishing a prima facie
case of discrimination. Stone & Webster Const., Inc. v. U.S. Dept. of Labor, 684 F.3d
1127, 1134-35 (11th Cir. 2012) (holding that the Department of Labor’s
Administrative Review Board had incorrectly relied on a “similar misconduct”
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standard which had been expressly set aside in favor of the “nearly identical”
standard) (citing Burke-Fowler, 447 F.3d at 1323 n.2). The “nearly identical”
standard does not require that the comparators are the “plaintiff’s dopplegangers”
but requires “much more than a showing of surface-level resemblance.” Flowers v.
Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1340 (11th Cir. 2015), cert. denied, 136 S.
Ct. 2510 (2016). The “quantity and quality of the comparator’s misconduct [or
circumstances] must be nearly identical to prevent courts from second-guessing
employers’ reasonable decisions and confusing apples with oranges.” Burke-Fowler,
447 F.3d at 1323 (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).
Plaintiff, an African American male, has offered a number of comparators
employed by Defendant. Those comparators include (1) Scottie Dalton, a
Caucasian male, who was given a light work assignment for a non-work related
injury, as well as (2) Summers, Hogg, and Blaylock 4, female officers who were
given an accommodation in the form of light duty during their pregnancy. The
Court initially notes that none of these comparators are similarly situated to
Plaintiff, because Dalton, Summers, Hogg, and Blaylock, could all continue to use
their firearms while on light duty. Given that the ability to operate a firearm is an
Plaintiff has not indicated the race of Summers, Hogg, and Blaylock in his Response in
Opposition to Summary Judgment. Thus, while these comparators would be sufficient for a claim
of discrimination based on gender, Plaintiff’s Title VII claim is for discrimination based on race.
(See Doc. 1 at 12.) Even proceeding under the assumptions that these officers did not share
Plaintiff’s race, Plaintiff’s Title VII claim is still due to be dismissed.
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essential part of being a police officer, the Court cannot say that Plaintiff’s situation
is “nearly identical” to that of Dalton, Summers, Hogg, and Blaylock.
It does not matter that Dalton, Summers, Hogg, and Blaylock were given
light work for non-work-related issues as opposed to work-related issues. While
Dalton was given a light-work accommodation for a non-work-related injury, this
appears to be an aberration from the Defendant’s usual policy of only extending
light work to employees injured on the job. When Collins found out that Dalton
was given light work for a non-work-related injury, he ordered that Dalton be
removed immediately from light work. That Summers, Hogg, and Blaylock were
given light work during their pregnancies is also not “nearly identical” to Plaintiff,
who was suffering complications from diabetes.
Because Plaintiff cannot show that he was qualified for his job as a police
officer and cannot identify any comparators, he cannot make out a prima facie case
of race discrimination. Plaintiff’s Title VII race discrimination claim is thus due to
For the reasons stated above, Defendant’s Motion for Summary Judgment
(doc. 33) is due to be GRANTED. Defendant’s Motion to Dismiss Complaint, or
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in the Alternative, for Summary Judgment (doc. 20) is therefore MOOT. An Order
consistent with this Opinion will be entered separately.
DONE and ORDERED on June 7, 2018.
L. Scott Coogler
United States District Judge
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