Deneve v. DSLD Homes Gulf Coast, LLC

Filing 50

ORDER granting 33 Defendant's Motion for Summary Judgment as set out in order. Signed by District Judge Jeffrey U. Beaverstock on 9/14/20. (cmj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STACY DENEVE,
Plaintiff,
v.
DSLD HOMES GULF COAST, LLC,
Defendant.

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)
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)
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) CIVIL ACTION NO. 1:18-CV-487-JB-B
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)
)
ORDER

This matter is before the Court on Defendant DSLD Homes Gulf Coast, LLC’s Motion for
Summary Judgment (Doc. 33), Plaintiff’s Response in Opposition (Doc. 37), Defendant’s Reply
(Doc. 40), Defendant’s Supplemental Brief in Support of Summary Judgment (Doc. 48) and
Plaintiff’s Supplement in Opposition (Doc. 49). The Court heard oral argument from the parties
on May 22, 2020 and ordered the supplemental briefing. The Motions are ripe for review. After
careful consideration of the parties’ briefs and arguments, the Court finds Defendant’s Motion
for Summary Judgment (Doc. 33) is due to be GRANTED.
I.

BACKGROUND
Plaintiff filed an EEOC charge alleging that Defendant terminated his employment

because of his age (62), alleged disability, and in retaliation for allegedly requesting a reasonable
accommodation on October 30, 2017. (Doc. 1-1, PageID.19). Defendant responded to the
charge, denying Plaintiff’s allegations and explaining numerous performance issues that were the
actual reasons for terminating Plaintiff’s employment. The EEOC was “unable to conclude that

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the information obtained establishes violation of the statutes”, dismissed the charge and issued
a notice of right to sue. (See Doc. 1-1, PageID.22).
Plaintiff filed this lawsuit on November 20, 2018. (Doc. 1-1). Plaintiff asserts five causes
of action in his Complaint: (1) failure to accommodate Plaintiff’s requests for time off to attend
medical appointments in violation of the Americans with Disabilities Act (“ADA”); (2) termination
because of an actual disability; (3) retaliation for requesting a reasonable accommodation; (4)
termination because of age in violation of the Age Discrimination in Employment Act (“ADEA”);
and (5) retaliatory discharge in violation of the Alabama Workers’ Compensation Act, Ala. Code
§ 25-5-11.1 (“Alabama WCA”). (Doc. 1-1). Written discovery was exchanged and the depositions
of Plaintiff, DSLD Area Manager Reid Hill (“Hill”), DSLD Chief Operating Officer and Rule 30(b)(6)
representative Lee Foster (“Foster”), and DSLD customer care coordinator Dianne Overby
(“Overby”) were taken.
II.

FINDINGS OF FACT
Defendant is a residential home builder. Defendant hired Plaintiff on September 1, 2015,

as a quality control and warranty technician. (Doc. 37, PageID.445). In his quality control role,
Plaintiff identified and remedied incomplete or inadequate construction before the Defendant
turned over homes to customers. (Id.). In his warranty role, Plaintiff completed periodic
warranty inspections and repair work once the customer took possession of and was living in a
home.

(Id.)

Hill was Plaintiff's immediate supervisor and was primarily responsible for

supervising Plaintiff's job assignments and work performance. (Id.).
On August 5, 2016, while conducting an inspection in an attic, Plaintiff suffered an injury
to his left hip. (Id. at PageID.445). On August 11, 2016, Plaintiff filed a Worker’s Compensation

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claim for this injury. (Id.). While Plaintiff’s physician initially restricted him from climbing,
kneeling, and stooping, he was released from those conditions on September 9, 2016. (Id. at
PageID.446). Defendant was aware of this injury and the restrictions imposed upon Plaintiff.
(Id.).
On May 31, 2017, Plaintiff injured himself a second time while working for Defendant.
(Id. at PageID.446). On this occasion, Plaintiff contends he lost his balance, and fell on his left
side. (Id.). Plaintiff called and left a voicemail for Hill, informing him of the incident and letting
him know he was sore. (Id.). Plaintiff asked Hill to call him back to discuss the injury. (Id.).
Plaintiff continued to feel pain in his left hip and walked with a visible limp. (Id.). Plaintiff did not
file a worker’s compensation claim concerning this injury but did eventually seek medical
treatment from a chiropractor. (Id. at PageID.446). Plaintiff received a shot for the pain and two
MRIs were performed for his chiropractor to view the injury. (Id.).
In mid-June 2017, roughly two weeks after Plaintiff’s second fall on the job, Defendant
interviewed Tanner Barnes (“Barnes”), age 25, for the QC Tech position. (Doc. 37, PageID.447).
At the end of July 2017, approximately one month before Plaintiff’s termination, Defendant hired
Tanner Barnes.

(Id.).

When Barnes started working, Plaintiff was re-assigned to assist

construction superintendents with completion of punch list work on projects.

(Doc. 33,

PageID.136). Barnes was terminated on March 4, 2019, because of concerns relating to poor
performance. (Doc. 33-18, PageID.436 – 437).
Defendant terminated Plaintiff’s employment on August 30, 2017. (Doc. 37, PageID.447).
During Plaintiff’s employment with Defendant, he received no formal discipline regarding his

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work performance. (Id. at PageID.446). Plaintiff was 61 years old the day he was fired. (Id. at
447).
III.

STANDARD OF REVIEW
Summary judgment shall be granted if there is no genuine issue as to any material fact

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The party seeking
summary judgment bears “the initial burden to show the district court, by reference to materials
on file, that there are no genuine issues of material fact that should be decided at trial.” Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The “party seeking summary judgment
always bears the initial responsibility of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)).
Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to
go beyond the pleadings and by [his] own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine
issue for trial.'" Celotex, 477 U.S. at 324. To avoid summary judgment, the nonmoving party
"must do more than show that there is some metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “On the other hand,
the evidence of the nonmovant must be believed and all justifiable inferences must be drawn in
[his] favor.” ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 926 F. Supp. 2d 1286, 1290 (S.D.
Ala. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (U.S. 1986)). Nevertheless, if

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the nonmoving party fails “to make a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,” the moving party is entitled to summary judgment.
Celotex, 477 U.S. at 323.
IV.

PLAINTIFF’S FAILURE TO ACCOMMODATE CLAIM FAILS BECAUSE HE ABANDONED IT.
In his Complaint, Plaintiff alleges Defendant failed to accommodate his disability by

refusing to grant him time off work to attend medical appointments following his May 2017
injury. (Doc. 1-1, PageID.7 – 8). Specifically, Plaintiff contends Defendant scheduled him for
assignments with full knowledge those assignments conflicted with scheduled medical
appointments. (Id.).
Defendant argues Plaintiff’s claims fail as a matter of law because Plaintiff never
requested a reasonable accommodation in connection with a disability.1 (Id. at 141 – 142). In
response to summary judgment, Plaintiff argues Defendant failed to accommodate him by
delaying his treatment through non-responsiveness. (Doc. 37, PageID.462). Specifically, Plaintiff
contends that following his second on-the-job injury, no one from Defendant responded “to [his]
claimed injury” or “provided access to a workman’s compensation claim, thus delaying plaintiff’s
treatment for the injury.” (Id.). Plaintiff also asserts, he was routinely assigned tasks “outside his
physical ability due to his disability.” (Id.). Plaintiff’s Response to Defendant’s Motion for
Summary Judgment represents the first time Plaintiff has made these allegations.

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Defendant also contends Plaintiff has not demonstrated he is disabled for the purposes of the ADA. This argument
will be discussed in detail below.

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Plaintiff did not respond to Defendant’s summary judgment argument that he never
requested a reasonable accommodation for his alleged injury and as a result, this ground has
been abandoned. Defendant is entitled to summary judgment on this claim alleged in the
Complaint. See Russell v. City of Mobile, 2013 WL 1567372, *5 (S.D. Ala. 2013), aff'd sub nom.
Russell v. City of Mobile Police Dep't, 552 F. App'x 905 (11th Cir. 2014) (“Russell does not address
this point in her opposition brief. [. . .] [G]rounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.”) (internal citations and quotations omitted);
Shamburger v. City of Mobile, 2008 U.S. Dist. LEXIS 55803, at *1 (S.D. Ala. July 23, 2008)
(“[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed
abandoned.’”) (internal citations omitted).
The Court cannot consider Plaintiff’s new theory that Defendant failed to accommodate
him through “non-responsiveness” because it was raised for the first time in response to
summary judgment. See, e.g., White v. Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1200 (11th
Cir. 2015); Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“At the
summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend
the complaint in accordance with Fed.R.Civ.P. 15(a). A plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.”); Parsons v. First Quality Retail Servs.,
LLC, 2012 U.S. Dist. LEXIS 6823, *15 (M.D. Ga. Jan. 20, 2012) (granting Defendant’s summary
judgment on Plaintiff’s failure to accommodate claim where it was raised for the first time in
opposition to summary judgment). Defendant is entitled to judgment as a matter of law on
Plaintiff’s failure to accommodate claim.

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V.

PLAINTIFF’S ADA CLAIMS
Plaintiff’s remaining ADA claims suffer from two defects.

First, Plaintiff cannot

demonstrate he is disabled for the purposes of the ADA. Second, Plaintiff cannot demonstrate
he is a “qualified individual,” i.e., that he is capable of performing his job’s essential functions
with or without a reasonable accommodation. These defects are fatal to Plaintiff’s ADA claims.
A.

Plaintiff cannot demonstrate he is disabled.

Defendant contends Plaintiff cannot establish a prima facie case of discriminatory
discharge under the ADA because he cannot show he is disabled. (Doc. 33, PageID.142).
The ADA provides, “[n]o covered entity shall discriminate against a qualified individual on
the basis of disability in regard to . . . discharge of employees . . ..” 42 U.S.C. § 12112(a). “To
establish a prima facie case for disability discrimination, a plaintiff must produce sufficient
evidence to permit a jury to find that she: (1) is disabled, (2) is a qualified individual, and (3) was
discriminated against because of her disability.” Lewis v. City of Union City, Georgia, 934 F.3d
1169, 1179 (11th Cir. 2019) (citing Mazzeo v. Color Resolutions Int'l, LLC, 746 F.3d 1264, 1268
(11th Cir. 2014)). To establish he suffers from a disability, Plaintiff must prove he has: (1) a
physical or mental impairment that substantially limits one or more major life activities; and (2) a
record of such an impairment or being regarded as having such an impairment. See 42 U.S.C.S.
§ 12102(1). “An impairment that is episodic or in remission is a disability if it would substantially
limit a major life activity when active.” 42 U.S.C. § 12102(4)(D).
The record suggests Plaintiff’s intermittent limited mobility interfered with a major life
activity – walking. See 29 C.F.R. § 1630.2(I). However, this interference did not substantially limit
Plaintiff’s ability to walk as required by this Circuit. Rather, the circumstances here are similar to

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those described in Amos v. Hertz Transporting, Inc. There, the court found the appellant’s
description of a “need to change position or take a break for five minutes every forty-five to sixty
minutes of continuous sitting or standing, is certainly a limitation in plaintiff's ability to walk,
stand, and perform manual tasks,” but was insufficient to establish a substantial limitation. 2006
U.S. Dist. LEXIS 6263, *26 (N.D. Ga. Jan. 31, 2006).
In this case, Plaintiff testified he walks with a limp, experiences infrequent and minute
flare-ups, and that during these flare-ups he has to take a short break. However, Plaintiff also
testified he completed his work after taking those short breaks. (Doc. 33-6, PageID.242, 281).
This sort of limitation is not substantial enough to qualify as a disability. See, e.g., Goff v.
Performance Contractors, Inc., 2020 U.S. Dist. LEXIS 61807, *14-15 (S.D. Ala. Apr. 8, 2020);
Hetherington v. Wal-Mart, Inc., 2012 U.S. Dist. LEXIS 80438, *48-49 (N.D. Ala. Apr. 24, 2012)
(finding no record evidence to suggest plaintiff faced a substantial limitation where he could
perform physical tasks despite allegations of a limp and difficulty in using his right hand); Moore
v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7th Cir. 2000) (finding no substantial limitation where
arthritis affected the plaintiff’s pace and rate of walking, and occasional flare-ups occurred once
or twice per year); Wynn v. Whitney Holding Corp., 220 F.Supp.2d 582, 590 (M.D. La. 2002) (citing
Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.1999)) (finding no substantial limitation
where plaintiff only offered evidence that she experienced a “transient worsening of her gait”).
Because Plaintiff failed to demonstrate he is disabled, his ADA claims fail as a matter of law. Goff,

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2020 U.S. Dist. LEXIS 61807, *18 (S.D. Ala. 2020) (finding plaintiff’s several ADA claims failed
where plaintiff could not establish he was disabled).
B.

Plaintiff cannot demonstrate he is a “qualified individual.”

In its Supplemental Brief in Support of Summary Judgment, Defendant contends Plaintiff’s
ADA claims also fail because Plaintiff is not a “qualified individual” under the ADA. (Doc. 48,
PageID.609). Defendant contends Plaintiff’s work performance demonstrates he could not
satisfactorily perform his job’s essential functions regardless of whether he received a reasonable
accommodation.

(Doc. 48, PageID.610 – 611).

Moreover, Defendant contends, Plaintiff

shouldered the burden of identifying a reasonable accommodation to his superiors at DSLD and
failed to do so. (Id. at PageID.616).
In response, Plaintiff asserts Defendant failed to properly address Plaintiff’s disability in
its analysis. (Doc. 49, PageID.646). Plaintiff also contends the precedent Defendant relies upon
in support of its argument is inapplicable to this case (Id. at PageID.646 – 647, 652), and the
documents Defendant relies upon neither demonstrate Plaintiff is not a “qualified individual,”
nor have any relevance to Defendant’s decision to terminate him. (Id. at 648 – 651).
The ADA identifies a “qualified individual” as someone 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). “The burden of identifying
an accommodation that would allow a qualified employee to perform the essential functions of
[his] job rests with that employee, as does the ultimate burden of persuasion with respect to
showing that such accommodation is reasonable.” Goff, 2020 U.S. Dist. LEXIS 61807*19-20
(quoting Earl v. Mervyns, 207 F.3d 1361, 1367 (11th Cir. 2000)). Further, “[i]f [the] individual is

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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.” Id. at *18
(quoting Holly, 492 F.3d at 1256); see also Pouncy v. Vulcan Materials Co., 920 F. Supp. 1566,
1582 (N.D. Ala. 1996).
When considering whether a job function is essential, the ADA provides, “if an employer
has prepared a written description before advertising or interviewing applicants for the job, this
description shall be considered evidence of the essential functions of the job.” 42 U.S.C. §
12111(8). Courts are encouraged to consider the following evidence when determining whether
a particular job function is essential:
(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 function;
(v) The terms of a collective bargaining agreement;
(vi) The work experience of past incumbents in the job; and/or
(vii) The current work experience of incumbents in similar jobs.
29 C.F.R. §1630.2(n)(3)(i) – (vii).
Assuming arguendo Plaintiff is disabled, he cannot demonstrate he performed the
essential functions of his QC Tech position, his Warranty / Customer Care tech position, or the
specifically created “punch-out” position without a reasonable accommodation. Instead, the
record demonstrates Plaintiff’s on-the-job performance was questioned as early as October 4,
20152, regarding performance as a QC Tech. (Doc. 33-2, PageID.149).

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This was about one month after Plaintiff was hired.

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1.

Plaintiff’s QC Tech Performance

According to the record, Defendant considered a QC Technician’s essential functions to
include:3
[Taking] charge of internal quality control inspections to ensure
adherence to company quality standards for all mechanical,
electrical, structural and finish trades;
Act[ing] as an internal customer prior to the homeowner
orientation to ensure high levels of quality are delivered to our
customers;
Must be self motivated; and
Must possess a high level or organization skills and acute attention
to detail.
(Doc. 33-7) (capitalization in original).

Plaintiff contends Defendant’s position on his

shortcomings in the QC role are unfounded because “[Defendant] has put forth no evidence he
failed to [demonstrate he was incapable of performing the job’s essential functions] other than
a single disputed email . . .” (Doc.49, PageID.649). The record belies this contention. Plaintiff’s
failure to meet the position’s attentiveness to detail and highly organized requirement became
apparent just over a month after he was hired. (Doc. 33-2, PageID.149). Similarly, when Hill
conducted a “walk through” on homes Plaintiff inspected, he noticed Plaintiff failed to “tape the
house,” an essential function of the job, indicating where repair work was required. (Doc. 48-3,
PageID.641 – 643). Similarly, to the extent Plaintiff characterizes Defendant’s position on
Plaintiff’s QC performance as “vague,” (Doc. 49, PageID.649 – 650), that criticism rings hollow.

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Plaintiff does not dispute Defendant’s characterization of these essential functions (or those of a Warranty
Technician) in their Opposition or Supplement.

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The QC Technician’s essential functions involved conceptual ideas – to be attentive and detailoriented. Defendant’s assessment of Plaintiff’s work relates specifically to those characteristics.
Though more properly asserted as evidence of pretext, Plaintiff argues he was never
“counseled” or “disciplined” for these infractions, and because he was never “counseled” or
“disciplined,” he satisfied the essential functions of his job commensurate with Defendant’s
expectations. Because the record is inconsistent through silence, Plaintiff contends, the Court
should discount Defendant’s articulated reasons for Plaintiff’s termination. The record, when
viewed in a light most favorable to Plaintiff, shows this is not the case. Besides the evidence cited
above, Plaintiff received additional training in response to his on-the-job shortcomings in the QC
role (as well as the Warranty Tech role). (Doc. 33-4, PageID.208). This remedial training is indicia
of poor work performance. See, e.g., Nettles v. Daphne Utils., 2015 U.S. Dist. LEXIS 36574, *33
(S.D. Ala. March 24, 2015) (identifying “coaching” as indicia of poor work performance); see also
Hockenjos v. Metro. Transporation Auth., 2016 U.S. Dist. LEXIS 65341 (S.D.N.Y. May 18, 2016)
(granting summary judgment on plaintiff’s FMLA claim where remedial training did not cure
plaintiff’s poor performance); Kennedy v. AMTRAK, 139 F. Supp. 3d 48, 63 (D. D.C. 2015) (granting
summary judgment on plaintiff’s discrimination claim where poor work performance and
remedial training eliminated any dispute of material fact).4

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Plaintiff takes issue with several exhibits Defendant included in its Supplemental Brief. (Doc. 49, PageID.651).
Plaintiff also contests several exhibits which Defendant sought leave to file in support of its Motion for Summary
Judgment. The Court finds it unnecessary to rely upon those exhibits. The record, without them, sufficiently
demonstrates Plaintiff’s poor work performance.

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2.

Plaintiff’s Warranty Tech Performance

According to the record, Defendant considered Warranty/Customer Care Technicians’
essential functions to include: “Document items needing repair during scheduled inspections . . .
Ensure all warranty service requests are complete within ten (10) days . . . Strong organizational
skills and ability to multi-task and prioritize in a fast-paced environment.” (Doc. 33-9)
(capitalization in original).
Plaintiff has failed to demonstrate a material factual dispute to support his contention
that he satisfactorily performed the essential functions required in his Warranty Tech role.
Plaintiff insists that because Hill did not receive the “vast majority” of emails regarding Plaintiff’s
performance, such evidence should be discounted in the Court’s summary judgment calculation.
Plaintiff’s contentions here are futile.

Notwithstanding that such an argument is more

appropriate at the “pretext” stage of the McDonnell Douglas analysis, Plaintiff fails to address
the instances where Hill received information on Plaintiff’s failings in this role. (See Doc. 33-2,
PageID.149, 159, 162, 165, 169 – 172, 183 – 185, 189). The record demonstrates Plaintiff knew
he repeatedly failed to satisfy essential functions of this position, including replying to all
warranty service requests within ten (10) days. (Id. at PageID.157, 161, 164, 168, 176, 178, 183
– 185, 189, 191).
3.

Plaintiff’s “Punch-Out” Performance

Plaintiff does not appear to rebut Defendant’s contentions about his failures to perform
the essential functions of his punch-out position. The result is any such argument is abandoned.
Martinez v. Ryan, 2016 U.S. Dist. LEXIS 43577, at *54 (D. Ariz. Mar. 30, 2016) (“[B]y failing to
address Claim 4 in his supplemental Martinez brief, Petitioner has further abandoned the

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claim.”); Holland v. McDonald, 2007 U.S. Dist. LEXIS 116563, at *27 n.5 (N.D. Ala. Nov. 28, 2007)
(citing Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284-85 (11th Cir. 2003) (“The
court notes that Holland failed to address Count VI in either his brief in opposition to the
defendants' motions for summary judgment or in his supplemental brief in opposition to the
defendants' motions for summary judgment (docs. 61 & 63). While the law is clear that Holland
cannot proceed with Count VI against COH and the defendant officers, the court also finds that
Holland abandoned Count VI by not addressing it in either of his responses.”); McIntyre v. Eckerd
Corp., 2007 U.S. Dist. LEXIS 15806, at *14-16 (N.D. Ga. Mar. 2, 2007).
4.

Conclusion

Finally, to the extent Plaintiff argues he was taking on “two jobs” at once when he
performed his QC Tech and his Warranty Tech duties, such a policy was in-place at DSLD when
he was hired, he knew these requirements, and accepted them when he took his position. (Doc.
33-4, PageID.204 – 206; Doc. 33-6, PageID.235). He may not “’second guess the employer or . . .
require [it] to lower company standards” especially when the position’s specifications were “jobrelated, uniformly enforced, and consistent with business necessity[.]" Nguyen v. City & Cty. of
Denver, 286 F. Supp. 3d 1168, 1183 (D. Colo. 2017) (citing Hennagir v. Utah Dep't of Corr., 587
F.3d 1255, 1262 (10th Cir. 2009)).
As Plaintiff cannot demonstrate he could perform the essential functions of his job
without a reasonable accommodation, “[t]he critical question for purposes of the ‘qualified
individual’ analysis thus becomes whether [Plaintiff] could perform the essential functions” of his
job with a reasonable accommodation. Goff, 2020 U.S. Dist. LEXIS 61807 at *19. As noted above,
the burden of identifying such an accommodation and demonstrating its reasonableness rests on

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Plaintiff’s shoulders. Id. During his deposition, Plaintiff stated he never told Hill or anyone at
DSLD he required an accommodation or that he physically could not perform the tasks assigned
to him. (Doc. 33-6, PageID.242). Further, Plaintiff failed to properly identify a reasonable
accommodation in his Opposition. See Section IV, supra. Because Plaintiff can identify no
reasonable accommodation that would have enabled him to perform the essential functions of
his positions, he cannot show he is a “qualified individual” and his ADA claims fail. Goff at *20.
C.
Plaintiff’s ADEA claim fails because he cannot show Defendant’s reasons for
termination were pretextual
Defendant contends summary judgment is appropriate on Plaintiff’s ADEA claim because
this claim cannot survive the McDonnell Douglas burden-shifting framework. (Doc. 33,
PageID.142).

Specifically, Defendant argues Plaintiff can provide no evidence to show

Defendant’s reasons for termination are pretextual. (Doc. 33, PageID.143 – 144). Plaintiff
responds by asserting he demonstrated a prima facie case of age discrimination (Doc. 37,
PageID.464–465) and the “vast majority of evidence presented concerning Plaintiff’s
performance” is based on “after-the fact justifications.” (Id.). Plaintiff also argues his supervisor’s
testimony regarding the reasons for termination was “vague,” and this vagueness is consistent
with the post hoc justifications for his firing. (Doc. 37, PageID.468). In reply, Defendant contends
Plaintiff has “mischaracterize[d] and apparently misunderst[ood] the significance” of the emails
Defendant offered to support its motion and Plaintiff cannot show his age was the “but for” cause
of his termination.
The ADEA prohibits an employer from discharging, or otherwise discriminating against,
an employee because of his age if the employee is at least 40 years old. See 29 U.S.C. §§ 623(a)(1),
631(a). This class of cases are subject to the McDonnell-Douglas burden-shifting analysis if the
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plaintiff’s evidence is circumstantial. Sims v. MVM, Inc., 704 F.3d 1327, 1331–33 (11th Cir. 2013).
To prove an ADEA claim by circumstantial evidence, a plaintiff must first establish a prima facie
case of discrimination. A plaintiff can establish a prima facie case for an ADEA violation by
showing “he (1) was a member of the protected age group, (2) was subjected to adverse
employment action, (3) was qualified to do the job, and (4) was replaced by or otherwise lost a
position to a younger individual.” Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000);
see also Benson v. Tocco, Inc., 113 F.3d 1203, 1207–08 (11th Cir.1997).
The Court finds Plaintiff presented a prima facie case of age discrimination. Plaintiff was
over forty (40) years old when Defendant hired him (Doc. 33-12); Defendant terminated his
employment on August 31, 2017 (Doc. 33-17); he was qualified for his job; and he was eventually
replaced by Tanner Barnes, a significantly younger employee. (Doc. 33-18, PageID.435).
Under McDonald Douglas, the burden shifts to Defendant to produce legitimate nondiscriminatory reasons. Defendant relies, largely, on the evidence discussed in Section V(B)(2),
supra, demonstrating Plaintiff’s poor work performance to show his termination was not a
consequence of pretext. Poor work performance is legitimate reason for discharge. See Davis v.
Cottage Hill Baptist Church, 1995 U.S. Dist. LEXIS 13288, at *17 (S.D. Ala. Aug. 29, 1995) (finding
the plaintiff’s poor job performance and previous insubordination legitimate, non-discriminatory
reasons for termination); EEOC v. Kloster Cruise, 897 F. Supp. 1422, 1424 (S.D. Fla. 1995); Kotas
v. Waterman Broad., 927 F. Supp. 1547, 1549 (M.D. Fla. 1996) (finding an employer's good faith
belief that an employee's performance is unsatisfactory constitutes a legitimate
nondiscriminatory reason for termination in an Age Discrimination in Employment Act claim);
Brown v. PSC Indus. Outsourcing, LP, 2013 U.S. Dist. LEXIS 1189, *34 (N.D. Ala. Jan. 4, 2013)

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(finding poor job performance as a legitimate reason for termination).

Thus, the onus is on

Plaintiff “to establish that an employer’s asserted reason was pretextual, . . . [that] both [ ] the
stated reason was false and that discrimination was the real reason” for his termination. Giraldo
v. Miami Dade Coll., 739 F. App'x 572, 574 (11th Cir. 2018).
Plaintiff has not shown Defendant’s decision to terminate him for poor on the job
performance was mere pretext. Plaintiff relies heavily on the assertion that Hill did not personally
receive all the emails concerning Plaintiff’s poor work performance as evidence of pretext. This
point ignores the emails Hill actually received showing Plaintiff was failing to meet performance
expectations.

Likewise, the “vagueness” Plaintiff references does nothing to show that

Defendant’s proffered reasons are false or mere pretext. Indeed, Plaintiff does not address or
suggest any falsity regarding the contents in the emails Hill received regarding Plaintiff’s poor job
performance; nor does he attempt to rebut Foster’s testimony regarding the homes he viewed
that were assigned to Plaintiff. (See Doc. 33-4, PageID.203).
Plaintiff also relies on Tanner Barnes’ age as evidence of pretext. Plaintiff’s argument is
weakened because Barnes was terminated for the same reasons as Plaintiff, i.e. poor
performance. (See e.g., Doc. 33-18). Thus, Plaintiff’s attempts to refute Defendant’s reasons for
his termination are unsuccessful and Defendant is entitled to judgment as a matter of law on this
claim. See, e.g., Giraldo v. Miami Dade Coll., 739 F. App'x 572, 575 (11th Cir. 2018) (finding no
pretext where the only circumstantial evidence of discrimination plaintiff offered was that three

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people hired in lieu of him were younger, had no disabilities, and the interviewer asked how the
plaintiff handled people in his same age range.).
VI.

PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE CASE OF RETALIATORY DISCHARGE
In his final claim, Plaintiff alleges he was subjected to retaliatory discharge prohibited by

the AWCA. Defendant argues it is due summary judgment on this claim because Plaintiff cannot
establish a prima facie case of retaliatory discharge. Specifically, Defendant argues the workers’
compensation claim Plaintiff actually made was too remote to be connected to an instance of
retaliatory discharge. Defendant contends, and Plaintiff does not dispute, he never filed a second
workers’ compensation claim concerning his alleged second injury. Defendant argues Alabama
law does not permit “possible” workers’ compensation claims to serve as the basis for a
retaliatory discharge claim. (Doc. 33, PageID.145). In response, Plaintiff argues he met the
criteria to establish a prima facie workers’ compensation claim despite the “temporal[ ]
distan[ce]” between his workers’ compensation claim in August 2016 and his termination on
August 30, 2017. (Doc. 37, PageID.471 – 472). Plaintiff cites no authority supporting his position
that a prospective workers’ compensation claims can serve as the basis for a retaliatory discharge
claim.
A prima facie claim for retaliatory discharge under the Alabama Workers’ Compensation
Act5 requires a plaintiff to show: (1) an employment relationship, (2) an on-the-job injury, (3)
knowledge on the part of the employer of the on-the-job injury, and (4) subsequent termination
of employment based solely upon the employee's on-the-job injury and filing a workers'

5

Ala. Code § 25-5-11.1

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compensation claim. Staples v. H. Walker Enters., LLC, 2019 U.S. Dist. LEXIS 122939, *14 (N.D.
Ala. 2019) (emphasis added). Although the "proximity in time between the filing of the workers'
compensation claim and discharge" may be "a persuasive factor in establishing a causal
connection,” Sparks v. Sunshine Mills, Inc, 2013 U.S. Dist. LEXIS 125756, *20-21 (N.D. Ala. 2013),
the mere possibility of a workers’ compensation claim will not support a prima facie case of
retaliatory discharge. Falls v. JVC Am., Inc., 7 So. 3d 986, 990 (Ala. 2008). Further, "if there is
uncontradicted evidence of an independently sufficient basis for the discharge then the
defendant is entitled to a judgment as a matter of law." Sparks, 2013 U.S. Dist. LEXIS 125756, at
*20-21. Absent a showing of pretext, an employer's stated legitimate reason for discharge
precludes any genuine issues of material fact. Id.
Plaintiff cannot establish the elements necessary to carry his claim. The record shows
Defendant employed Plaintiff (Doc. 33-12), Plaintiff suffered two on-the-job injuries that his
supervisor knew about (Doc. 33-5, PageID.221 – 222), and Plaintiff filed one workers’
compensation claim on August 11, 2016. (Doc. 37-4, PageID.525). All that said, Plaintiff cannot
demonstrate a genuine issue of material fact that he was terminated for filing a workers’
compensation claim. Plaintiff insists he satisfied this element because he filed a workers’
compensation claim in 2016, and had a prospective claim following his injury in May of 2017.
(Doc. 37, PageID.472) (“Since Plaintiff’s claim here relates to retaliation for the reporting of two
on-the-job injuries, as well as the filing of one workers’ compensation claim, the cause of
Plaintiff’s termination did occur within three months of the discharge and he has met every
element of the offense.”).

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As to Plaintiff’s reliance on his workers’ compensation claim from August of 2016, it is his
burden to demonstrate “by substantial evidence, a direct and distinct causal link between one
having knowledge of the plaintiff's workers' compensation claim and the termination.” CocaCola Bottling Co. Consol. v. Hollander, 885 So. 2d 125, 130 (Ala. 2003). Such a causal connection
requires the temporal proximity between the workers’ compensation claim and termination to
be “very close.” Sparks, 2013 U.S. Dist. LEXIS 125756, at *31-32 (“[c]lose temporal proximity
between the claim and the termination must be so coincidental as to raise an inference that the
claim caused the termination."). Here, there is no close temporal proximity linking Plaintiff’s
actual claim for workers’ compensation benefits in August 2016 and his termination in August of
2017.
Plaintiff’s second theory, that he established a prima face case by way of his potential
workers’ compensation claim due to his May 2017 injury, is foreclosed by Alabama law. See Falls,
7 So. 3d 986 at 990–91. In Falls, the Alabama Supreme Court stated:
If the Legislature desires to expand § 25–5–11.1 so that a retaliatory discharge
would include terminations of employment in anticipation of workers'
compensation claims, it may do so by amending the statute. Unless and until the
Legislature does so, however, we must interpret the statute as written. Because
the statute uses the verb phrase “has instituted or maintained” in relation to an
action to recover worker's compensation benefits, it is clear that § 25–5–11.1
contemplates an action for a termination of employment in retaliation against an
event, i.e., the filing of a worker's compensation claim, that has already occurred.
7 So. 3d at 990-91. Because Alabama law forecloses the possibility of a retaliatory discharge
claim based on a prospective worker’s compensation claim, Defendant is entitled to judgment as
a matter of law.
Even if Plaintiff could state a prima facie case for retaliatory discharge, he could not
overcome Defendant’s legitimate reasons for his termination. As noted above, the record
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reflects Plaintiff was discharged for poor job performance. Plaintiff proffered circumstantial
evidence fails to create a genuine issue of fact that the stated basis has been applied in a
discriminatory manner to employees who have filed workers' compensation claims or the other
criteria outlined in Sparks. Instead, the opposite is true. One of Plaintiff’s co-employee’s,
Murdoch, another man over forty (40) years old, filed workers’ compensation claims and was not
discharged. (Doc. 33-5 at ¶ 5). Further, as noted above, Plaintiff’s replacement was discharged
for the same reasons Plaintiff was terminated. (Doc. 33-18, PageID.436 – 437). Based on the
foregoing, Defendant is entitled to judgment as a matter of law on Plaintiff’s retaliatory discharge
claim.
CONCLUSION
The Court finds that there are no genuine issues of material fact and that Defendant DSLD
is entitled to judgment as a matter of law on each of Plaintiff’s claims. Defendant’s Motion for
Summary Judgment is GRANTED.
DONE and ORDERED this 14th day of September, 2020.
/s/ JEFFREY U. BEAVERSTOCK
UNITED STATES DISTRICT JUDGE

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