Bradley v. Little Rock Wastewater Utility et al

Filing 36

ORDER granting defts' 18 22 Motions for Summary Judgment; denying pltf's 27 Motion to Amend/Correct. Signed by Judge D. P. Marshall Jr. on 1/20/12. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

ALLEN BRADLEY

v.

PLAINTIFF
No.4:10-cv-2019-DPM

LITTLE ROCK WASTEWATER UTILITY;
and DALE GILBERT, in his individual and
official capacities as a Supervisor of the
Little Rock Wastewater Utility

DEFENDANTS

ORDER
Allen Bradley sued his former employer, Little Rock Wastewater Utility,
and his former supervisor there, Dale Gilbert, alleging violations of the
Americans with Disabilities Act, the Age Discrimination in Employment Act,
the Rehabilitation Act, and the Family Medical Leave Act.

Little Rock

Wastewater and Gilbert seek summary judgment. Taking the record in the
light most favorable to Bradley, Rynders v. Williams, 650 F.3d 1188, 1194 (8th
Cir. 2011), the Court sees no genuine disputes of material fact. And for
various reasons, each of Bradley's claims fails as a matter of law.
1. Bradley's claims under the ADA and ADEA are time-barred. Both
of these statutory regimes require a plaintiff to file an administrative charge
within 180 days of the alleged unlawful employment practice. 42 U.S.C. §§

2000e-5(e) & 12117(a) (ADA); 29 U.S.C. § 626(d)(1)(A) (ADEA). Bradley's

claims were not filed within his 180-day window, which he acknowledges in
his papers. Document No. 30, at 1. Little Rock Wastewater and Gilbert are
therefore entitled to summary judgment.
2. Although conceding they were tardy, Bradley argues that his ADA
and ADEA claims can be brought under Title II of the ADA or 42 US.C. §

1983. Document No. 30, at 1.
His attempt to obtain relief via § 1983 fails. Because the ADA provides
a "comprehensive remedial scheme," the Eighth Circuit has held that
Congress" indicated an intention to make the remedies that Title II itself gives
the exclusive ones for the enforcement of that subchapter," thus precluding
a § 1983 claim. Alsbrook v. City ofMaumelle, 184 F.3d 999, 1011 (8th Cir. 1999)

(en banc) (quotations omitted). And although the Eighth Circuit has not
specifically passed on the issue, Bradley cannot pursue his ADEA claim
through § 1983 for the same reason. Ahlmeyer v. Nevada System of Higher

Education, 555 F.3d 1051, 1056-57 (9th Cir. 2009) (collecting cases and noting
that" every other circuit to consider the question" has held that" the ADEA

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is the exclusive remedy for age discrimination in employment claims[.]"). The
Court is persuaded by this well-reasoned, albeit non-binding, precedent.
Whether Bradley may bring his disability-discrimination claims under
Title II alone is a murkier question. Title II prohibits discrimination by
"public entities." This prohibition mayor may not apply in the employment
context. Board of Trustees of the University ofAlabama v. Garrett, 531 U.S. 356,
360 n.1 (2001) (noting, without resolving, the circuit split on this issue). The
Eighth Circuit has not yet spoken on the point. Rather than wandering into
this thicket, the Court will address Bradley's disability claims on the merits.
Although the parties spent much time arguing about how to analyze
Bradley's various claims - disparate treatment, failure to accommodate, and
retaliation-the Court concludes that Bradley has not answered the more
fundamental question: whether he was a "qualified individual" entitled to
the protections of the ADA. See 42 U.s.C. §§ 12111(8) & 12131(2). To establish
his prima facie case, Bradley must show that he "was disabled, was qualified
to perform the essential functions of [his] job with or without reasonable
accommodation, and was terminated under circumstances that raise an
inference of unlawful disability discrimination." Mole v. Buckhorn Rubber

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Products, Inc., 165 F.3d 1212, 1216 (8th Cir. 1999). Further, to invoke the

protections of the ADA, Bradley must establish that his "work performance
met the employer's legitimate job expectations, with or without reasonable
accommodation." Id. at 1217 (quotation omitted).
Bradley has not made his prima facie case on the undisputed facts. The
record is replete with appraisals rating Bradley's work as sub-par. Document
Nos. 19 & 20, and attached exhibits. Then there is the sworn testimony of

Bradley's fellow Senior Instrument Technician: Bradley lacked attention to
detail, was delivering a poor-quality work product, and generally grew to
have "no desire to do anything correctly." Document No. 20-29, at 2. And
there are the written warnings and disciplinary action taken against Bradley
in 2009. The record makes plain that Bradley was no longer carrying his
weight as an employee of Little Rock Wastewater.
Like the Buckhorn Rubber Products company, Little Rock Wastewater
"documented serious performance deficiencies" that demonstrated Bradley's
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diminished or deteriorated abilities" in his job. Mole, 165 F.3d at 1217. And

Bradley has not shown how an accommodation would have addressed his
job-related deficiencies or helped him meet Little Rock Wastewater's

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legitimate job expectations. Even if the matter is analyzed solely under Title
II, because Bradley has not shown he was a qualified individual entitled to the
ADA's safeguards, Little Rock Wastewater and Gilbert are entitled to
summary judgment on Bradley's disability claims.
3. Bradley also attempts to assert his claims under Section 504 of the

Rehabilitation Act, 29 U.s.C. § 794. He rightly says that, unlike the ADA and
the ADEA, the Rehabilitation Act does not require exhaustion in this instance,
and thus he may proceed in court without first filing an administrative
charge. Monahan v. Nebraska, 687 F.2d 1164, 1169 (8th Cir. 1982). But the
Rehabilitation Act differs from the ADA in its "requirement that a person's
disability serve as the sale impetus for a defendant's adverse action against the
plaintiff." Wojewski v. Rapid City Regional Hospital, Inc., 450 F.3d 338,344 (8th
Cir. 2006) (emphasis original); see also Amir v. St. Louis University, 184 F.3d
1017, 1029 n.5 (8th Cir. 1999).
Bradley's case cannot get past the sole-impetus criterion. His amended
complaint alleges that he was fired" in part due to his disability," and" in part
due to his age," and "in part due to the fact he was entitled to FNILA leave[.]"
Document No. 15, at 4. The undisputed facts - especially Bradley's many sub­

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par employee evaluations - establish that Bradley's alleged disabilities were

not the sole impetus for his termination. Because Bradley has not met this
"heightened requirement[]" of Section 504, Amir, 184 F.3d at 1029 n.5, his
Rehabilitation Act claim fails.
4. Bradley also alleges interference and retaliation under the Family

Medical Leave Act related to his hip injury. Once again, however, the Court
concludes he has not established the basic requirements to obtain relief. "In
order to state a claim for interference under the FMLA, [Bradley] must have
given notice of [his] need for FMLA leave." Phillips v. Mathews, 547 F.3d 905,
909 (8th Cir. 2008); see 29 C.P.R. § 825.302(a). Bradley concedes that he never
" ask[ed] for FMLA leave" and did not" go to HR and talk about any leave
that [he] needed to recover from an injury." Document No. 20-1, at 3-4
(Bradley Depo. at 14:20-15:3).1 Considered both formally and informally,

Bradley did not notify Little Rock Wastewater that he needed FMLA leave.
Bradley's diabetes, which he often pointed to when he was late or

To the extent that Bradley attempts to evolve his argument into one that he

did not get notice of his FMLA rights from Little Rock Wastewater, the argument is

unavailing. Document No. 31, at 9. The utility's Employee Handbook, which Bradley

received, contains almost seven pages about the employees' FMLA rights and

procedures. Document No. 32-1.

1

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missed work, does not connect with any FMLA violation. Gilbert, Bradley's

supervisor, knew Bradley was diabetic. The Court need not explore whether
Gilbert's knowledge was"notice" to Little Rock Wastewater under the FMLA.
Bradley's diabetes-related absences were short and sporadic - the record
contains no evidence that his diabetic incapacity ever exceeded three days.
These absences therefore never constituted a sufficient period of incapacity
that would require FMLA leave. Thorson v. Gemini, Inc., 205 F.3d 370, 376-77
(8th Cir. 2000). Of course Bradley's diabetes was not insignificant and it
required medical care from time to time; but those are not all the criteria
under the FMLA. Absent work incapacity for more than" three consecutive,
full calendar days," no serious health condition-as the regulations define
that term-existed. 29 C.P.R. §§ 825.115(a); 825.800 (definitions).
Bradley has also failed to make a prima facie case for FMLA retaliation.
He has not shown a causal link between the purported protected activity and
his firing. " [T]he time lapse between an employee's protected activity and the
employer's adverse action is an important factor when evaluating whether a
causal connection has been established." McBurney v. Stell) Hansen's Dodge

City, Inc., 398 F.3d 998, 1003 (8th Cir. 2005) (six-month interval between

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employee's return from FMLA leave and his transfer diluted any inference of

causality). More than ten months elapsed between the period of FIVILA­
related activity during Bradley's employment and his firing. This gap weighs
decidedly against any supposed retaliatory motive. Moreover, Little Rock
Wastewater's performance-based reasons for terminating Bradley further
erode the potential inference of any causal relationship between Bradley's
FMLA rights and his termination. Summary judgment on the FMLA claims
is therefore warranted.
5. A final point. In the middle of the summary-judgment briefing, and

after the deadline for amending pleadings, Bradley moved to amend his
complaint a second time "to state a claim under state law for age
discrimination" under Arkansas Code Annotated §§ 21-3-201 & -203.

Document Nos. 8 & 27, at 1. Bradley argued that a recent Arkansas Supreme
Court decision announced a "change in the law," thus" constitut[ing] good
I

cause' to allow [Bradley] to amend the Complaint." Ibid. This is incorrect.

Douglas v. First Student, Inc., 2011 Ark. 463, did not change any law about the
statute of limitations under Arkansas's age-discrimination statute. Rather, the
Arkansas Supreme Court declared that it" traditionally applied" a three-year

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limitations period to statutorily created liabilities without express limitations
periods, and therefore was merely "reaffirm[ing] our precedent" and "long
history" on that issue.

Id. at 6.

No good cause exists for a belated

amendment. The Court therefore denies Bradley's second motion to amend.

*

*

*

The Defendants' motions for summary judgment, Document Nos. 18 &
22, are granted. Bradley's amended complaint is dismissed with prejudice.
Bradley's second motion to amend, Document No.2 7, is denied.
So Ordered.

2.QJanuary 2012

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