McCarroll v. Somerby of Mobile, LLC
MEMORANDUM OPINION & ORDER, Somerby's 32 Motion for Summary Judgment is GRANTED as set out. McCarroll's 36 Motion for Summary Judgment is DENIED as set out. McCarroll's 40 Motion to Amend Complaint is DENIED as set out. Somerby's 39 Motion to Strike, 46 Motion to Strike are MOOT as set out. Signed by Judge Callie V. S. Granade on 2/6/2014. (copy mailed to Plf on 2/7/14) (tot)
IN THE NITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOMERBY OF MOBILE, LLC,
Civil Action No. 12-0709-CG-M
MEMORANDUM OPINION AND ORDER
This matter is before the court on Somerby’s motion for summary
judgment (Doc. 32), McCarroll’s motion for summary judgment (Doc. 36),
Somerby’s motions to strike (Docs. 39, 46), and McCarroll’s motion to amend
his complaint (Doc. 40). These motions have all been fully briefed and are
ripe for decision.
Plaintiff Anthony McCarroll used to have a job working as a driver for
Defendant Somerby of Mobile, LLC, a senior-living community. But
McCarroll’s employment came to an end after he missed work twice without
giving proper notice that he would be absent.
The first incident happened on November 29, 2011, when McCarroll
called in twenty minutes before his shift was scheduled to begin, stating that
he was “too sore to work.” (Doc. 33 at 6.) According to Somerby’s attendance
policy, McCarroll was supposed to have called his supervisor to report his
absence at least four hours before his shift was set to begin. The next day,
McCarroll’s supervisor “warned him about his failure to properly report his
absence.” (Doc. 33 at 6.)
The second incident happened on December 10, 2011, when McCarroll
was scheduled to work from 6:15 p.m. to 11:00 p.m. That afternoon,
McCarroll went to Somerby at around 3:30 to tell his supervisor that he
would not come to work that night. But instead of speaking directly to his
supervisor as Somerby’s attendance policy required him to do, McCarroll left
a message with the concierge on duty.
McCarroll’s supervisor reported McCarroll’s attendance-policy
violations to Linda Best, Somerby’s assistant executive director. On the
morning of December 12, Best met with Jane Scrivner, Somerby’s executive
director, to discuss McCarroll’s attendance problems. Together, Best and
Scrivner decided to fire McCarroll due to his violations of the attendance
policy. They also decided that Best would break the news to McCarroll.
When McCarroll came in to work later that morning, Best had a
discussion with him. During that discussion, two important things happened:
Best fired McCarroll, and McCarroll produced a doctor’s note recommending
a leave of absence while a modification to the “treatment plan” for his
“medical condition” took effect. (Doc. 34-3 at 46.)
That note did not change anyone’s mind about firing McCarroll.
According to Somerby, “[t]he termination decision was not related in any way
to any request by McCarroll for medical leave.” (Doc. 33 at 7.) In fact, both
Best and Scrivner claim that they had no idea that McCarroll suffered from
any particular medical condition at the time they decided to fire him.
On November 15, 2012, McCarroll filed this lawsuit against Somerby,
claiming a violation of the Americans with Disabilities Act (the “ADA”), 42
U.S.C. §§ 12101–12213. Since then, McCarroll has amended his complaint
once (Doc. 21) to add a claim under the Family Medical Leave Act (the
“FMLA”), 29 U.S.C. §§ 2601–2654, and he seeks leave to amend his complaint
a second time to add a claim under Title VII of the Civil Rights Act (Doc. 40;
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted “if the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of
law.” The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52
On a motion for summary judgment, the movant bears the initial
burden of proving that no genuine issue of material fact exists. O’Ferrell v.
United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In evaluating the
movant’s arguments, the court must view all evidence and resolve all doubts
in the light most favorable to the nonmovant. Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds might differ on the
inferences arising from undisputed facts, then [the court] should deny
summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d
1532, 1535 (11th Cir. 1989).
Somerby’s Motion for Summary Judgment
McCarroll’s ADA Claims
Because McCarroll has not presented direct evidence of an ADA
violation, the court will evaluate his ADA claims under the framework set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L.Ed.2d 668 (1973). See Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir.
2000). Under that framework, McCarroll bears the initial “burden of proving
a prima facie case of disability discrimination by a preponderance of the
evidence.” Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226 (11th
Cir. 1999). As the following discussion will show, McCarroll cannot meet that
burden on either a theory of discriminatory discharge or of failure to
In order to establish a prima facie case of discriminatory discharge
under the ADA, McCarroll must show that (1) he is disabled within the
meaning of the ADA, (2) he is a qualified individual within the meaning of
the ADA, and (3) Somerby fired him because of his disability. See Greenberg
v. BellSouth Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). At this
stage, Somerby concedes that McCarroll can prove the first two elements.
Thus, the court need only consider whether McCarroll can establish that he
was fired because of his disability.
At its simplest, Somerby’s argument on this point relies on ignorance:
Because neither of the Somerby decision makers who decided to fire
McCarroll knew he was disabled, they couldn’t have possibly fired him
because of his disability. The Eleventh Circuit endorsed that reasoning in
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005) ([“A] decisionmaker who lacks actual knowledge of an employee’s disability cannot fire the
employee ‘because of’ that disability.”), so the crucial question is whether
McCarroll’s evidence could lead a reasonable jury to believe the decision
makers at Somerby had actual knowledge of his disability when they decided
to fire him.
On that point, McCarroll’s evidence is insufficient. The record is devoid
of any evidence that suggests Scrivner ever knew McCarroll was disabled.
And the only evidence of Best’s knowledge is McCarroll’s word that he
complained to Best of back pain on February 19, 2009, his first day of work at
Somerby (over two and a half years before he was terminated). McCarroll has
not offered any details about the substance of that conversation, however, so
it is not clear that anything he said then should have put Best on notice that
his back problem was a persistent disability within the meaning of the ADA
rather than a one-time complaint. See Cordoba, 419 F.3d at 1180 (finding
that a single conversation about missing work due to a doctor’s appointment
did not prove actual knowledge of an employee’s disability). And although
McCarroll did show the note from his doctor to Best, that note could not show
actual knowledge at the relevant time because Best and Scrivner decided to
fire him before he presented that note. Id. at 1180 (noting that an employee’s
evidence that she made a statement about her disability “before she was
officially handed her termination” did not suffice as evidence of actual
knowledge when it was presented after the decision maker “had already
made the decision to fire” her). In short, nothing in McCarroll’s evidence
could lead a reasonable jury to conclude that Scrivner or Best had actual
knowledge of his disability when they decided to fire him, so McCarroll
cannot establish the causal element of his prima facie case of disability
Failure to Accommodate
In order to establish a prima facie case for failure to accommodate his
disability, McCarroll must show that (1) he has a disability, (2) he is a
qualified individual within the meaning of the ADA, and (3) Somerby failed
to reasonably accommodate his disability. Only the third element is in
To prove that Somerby failed to accommodate his disability, McCarroll
must first show that he made a specific demand for an accommodation. See
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir.
1999) (noting that an employer’s “duty to provide a reasonable
accommodation is not triggered unless a specific demand for an
accommodation has been made”). At a minimum, such a demand must
include a request for “some change or adjustment in the workplace and must
link that request to [a] disability.” See Williamson v. Clarke Cnty. Dep’t of
Human Resources, 834 F. Supp. 2d 1310, 1320 (S.D. Ala. 2011). Here, it is
undisputed that McCarroll did not make any such request prior to Somerby’s
decision to terminate him. And any request for accommodation made after
that point came too late. As discussed above, Somerby did not violate the
ADA by following through with its decision to terminate McCarroll, so it
follows that McCarroll’s termination obviated the need for any efforts at
accommodation. As a result, McCarroll cannot establish the third element of
his prima facie case of failure to accommodate.
McCarroll’s FMLA Claims
The FMLA creates two types of claims: (1) interference claims, in
which an employer interferes with an employee’s substantive rights under
the FMLA, and (2) retaliation claims, in which an employer discriminates
against an employee who engages in activity protected by the FMLA.
Strickland v. Water Works, 239 F.3d 1199, 1207 (11th Cir. 2001). Because it
is unclear which of these theories McCarroll’s FMLA claim proceeds under,
the court will discuss both.
In order to succeed on a claim of FMLA retaliation, McCarroll “must
demonstrate that [Somerby] intentionally discriminated against him in the
form of an adverse employment action for having exercised an FMLA right.”
Strickland v. Water Works and Sewer Bd. of City of Birmingham, 239 F.3d
1199, 1207 (11th Cir. 2001). As discussed above, McCarroll cannot meet the
causal element of that standard because he did not attempt to request leave
under the FMLA until after Somerby had made the decision to terminate
him. Thus, McCarroll’s FMLA retaliation claim fails. See Brungart v.
BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (“A decision
maker cannot have been motivated to retaliate by something unknown to
For McCarroll’s interference claim, the causation problem is not fatal
to his prima facie case. That is because “a causal nexus is not an element of
an interference claim” under the FMLA. Spakes v. Broward Cnty. Sheriff’s
Office, 631 F.3d 1307, 1309 (11th Cir. 2011). But that does not mean the
question of causation does not pose a fatal problem to McCarroll’s
interference claim, for in such cases, “the employer can raise the lack of
causation as an affirmative defense.” Id. So if Somerby can demonstrate “that
it would have discharged [McCarroll] for a reason wholly unrelated to the
FMLA leave, [it] is not liable under the FMLA.” Id. at 1310 (quotations
Somerby meets that burden. As discussed above, Somerby decided to
terminate McCarroll before it knew he would ask for a medical leave of
absence. The timing of that decision proves that McCarroll’s request for leave
played no part in it. As a result, Somerby cannot be liable for FMLA
interference because it decided to fire McCarroll for a reason “wholly
unrelated to” his request for leave. Id.
Somerby’s Motions to Strike
Because the disposition of Somerby’s motions to strike would have no
effect on the court’s decision to grant Somerby’s motion for summary
judgment, they are moot.
McCarroll’s Motion for Summary Judgment
Because Somerby’s motion for summary judgment against McCarroll is
due to be granted on all counts, McCarroll’s opposing motion for summary
judgment is necessarily due to be denied.
McCarroll’s Motion to Amend his Complaint
Although McCarroll has filed a motion to amend his complaint, it
seems that most of the claims he seeks to add are simply reiterations of the
claims already included in his complaint. (See Doc. 40 at 1 (seeking leave to
amend the initial pleadings to show causes of action under the ADA and the
FMLA). The only hint that McCarroll actually seeks to add a new claim is a
reference to Title VII of the Civil Rights Act of 1964. (Doc. 40 at 2.) But
McCarroll has filed nothing to suggest he has evidence, or even allegations, to
support any claims under that statute. And even if he had, he has not shown
good cause for his failure to file his motion to amend before the deadline set
in the scheduling order. (See Doc. 19 ¶ 4 (“The parties must file any motions
for leave to amend the pleadings and to join other parties no later than May
31, 2013.”)); see also Fed. R. Civ. P. 16(b)(4) (noting that modification of a
scheduling order’s deadlines requires a showing of good cause); Sosa v.
Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir. 1998) (“[W]hen a motion to
amend is filed after a scheduling order deadline, Rule 16 is the proper guide
for determining whether a party’s delay may be excused.”). Accordingly,
McCarroll’s motion to amend is due to be denied as futile and untimely.
It is therefore ORDERED as follows:
Somerby’s motion for summary judgment (Doc. 32) is
McCarroll’s motion for summary judgment (Doc. 36) is
McCarroll’s motion to amend his complaint (Doc. 40) is
Somerby’s motions to strike (Docs. 39, 46) are MOOT.
DONE and ORDERED this 6th day of February, 2014.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE
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