BOATWRIGHT v. ASPEN PRODUCTS INC

Filing 26

ORDER GRANTING 19 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 6/18/2018. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
MARK BOATWRIGHT,
Plaintiff,
v.
ASPEN PRODUCTS, INC.,
Defendant.

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CIVIL ACTION NO. 5:17-CV-34(MTT)

ORDER
Defendant Aspen Products, Inc. has moved for summary judgment on the
disability employment discrimination claims of Plaintiff Mark Boatwright, who is
proceeding pro se. Doc. 19. As discussed below, the motion (Doc. 19) is GRANTED,
and Boatwright’s claims are DISMISSED with prejudice.
I. FACTS1
Boatwright began working as a machine operator for Aspen Products, a
manufacturer of paper plates and cups, on June 1, 2015. Docs. 21 at 17:7-13, 18:1922; 22 ¶¶ 2-3. Around Friday, June 19, 2015, Boatwright injured his ankle. Docs. 21 at
52:15-22; 21-1 at 49. On Monday, June 22, Brian Lilly, Aspen Products’s plant
manager, and Jay Kerr, Aspen Products’s production manager, sent Boatwright to
Macon Occupational Medicine to have the ankle examined. Docs. 21 at 52:24-53:11;
21-1 at 49; 22 ¶ 4. Boatwright was diagnosed with an ankle sprain and released for
restricted work duty; specifically, Boatwright was instructed not to lift, push, pull, carry

1

Unless stated otherwise, the facts are undisputed. Where the facts are disputed, on summary
judgment, the Court must draw “all justifiable inferences” in favor of Boatwright, the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citation omitted).

over 15 pounds, or walk or stand for more than 20 minutes at a time, and he was told to
take breaks to ice and elevate the injured ankle. Doc. 21-1 at 49.
Boatwright expressed his desire to work in his normal machine operating
capacity while using crutches, but Kerr and Lilly denied this request. Docs. 21 at 28:1822, 29:2-12, 30:5-16; 22 ¶ 5. Lilly told Boatwright that he could not work with crutches;
Kerr swore in an affidavit that, due to the safety concerns arising from heavy machinery,
Aspen Products “typically do[es] not recommend employees”—machine operators in
particular—“that need crutches or wheelchairs to continue working on the production
floor” and that a “light duty work station is something we have always had available to
accommodate employees.” Docs. 21 at 30:14-16, 32:8-13; 22 ¶ 14. Accordingly,
Aspen Products instructed Boatwright that light duty work would be available for him,
instead. Doc. 22 ¶ 5.2 Kerr swore in an affidavit, and Boatwright does not dispute, that
the light duty work, used for employees with work restrictions, entailed modified duties
at a chair and table, usually counting, inventorying, or inspecting product. Doc. 22 ¶¶
13-14.
But Boatwright did not go to work on June 23, instead calling in to his supervisor
and reporting that he could not work because of his ankle. Docs. 21 at 59:15-21, 62:18; 22 ¶ 6. On June 24, he requested a second opinion regarding his ankle. Docs. 21 at
53:23-54:9; 22 ¶ 6. An appointment with a different doctor was made; Boatwright called
in again the nights of June 24 and 25; and Boatwright visited Ortho Georgia on June 26.
Docs. 21 at 56:3-7; 21-1 at 50; 22 ¶ 7. The doctor at Ortho Georgia echoed the
recommendations of Macon Occupational Medicine, allowing Boatwright to return to

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In his deposition, Boatwright testified that he could not recall whether Aspen Products offered him light
duty work. Doc. 21 at 88:6-9. But he did not testify and does not argue that he was not offered light duty
work, and a letter Kerr sent Boatwright on July 2 documented that Boatwright had been told that “Aspen
Products would accommodate any and all work restrictions according to the documentation we received
from Macon Occupational.” Doc. 21-1 at 54. Accordingly, this fact remains undisputed.

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work with restrictions, including “no prolong[ed] standing without crutch [and] no
stooping for [one] week.” Id.
But Boatwright called in and did not go to work on his next three shifts, June 26,
29, and 30. Docs. 21 at 59:15-21, 62:1-8; 22 ¶ 8. Kerr swore in his affidavit that he
called Boatwright on July 1 and told him that the absences were not excusable because
light duty work was available and that Boatwright told Kerr that he wanted to go back to
the doctor. Doc. 22 ¶ 8.3 The same day, Boatwright returned to Ortho Georgia, where
he was again instructed that he could return to work with the light duty restrictions,
specifically, “no prolong[ed] standing with crutch [and] no stooping for [two] weeks.”
Docs. 21 at 62:14-17; 21-1 at 53; 22 ¶ 8. That night, Boatwright called in again and did
not attend work. Doc. 22 ¶ 9.
After that latest absence, Kerr drafted a letter to Boatwright and signed it on July
2, laying out Kerr’s understanding of what had happened to that point. Docs. 21 at
63:20-24; 21-1 at 54; 22 ¶ 9. Specifically, the letter stated that Boatwright had been
injured on June 19, 2015, had reported for work on June 22, and had been sent to
Macon Occupational Medicine on June 23; that Boatwright had been notified that Aspen
Products would accommodate Boatwright’s work restrictions prescribed by Macon
Occupational; that Boatwright was notified that he was still scheduled to work his
regular schedule; that on June 26 Boatwright requested to change doctors and was sent
to Ortho Georgia and again told that Aspen Products would accommodate prescribed
work restrictions; and that Boatwright had called in each day to report that he would not
attend work despite these offered accommodations. Doc. 21-1 at 54. The letter also
stated, “[i]t has been communicated to you at every step that your work restrictions

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Boatwright does not dispute this statement from Kerr’s affidavit.

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would be accommodated according to the documentation received from each visit.” Id.
And it continued, “[a]t the time of this letter, you have been unexcused from work for
[seven] days to include: 6/23/15, 6/24/15, 6/25/15, 6/26/15, 6/29/15, 6/30/15 and
7/1/15.” Id. Finally, the letter instructed Boatwright “to call Aspen Products and speak
to Jay Kerr or Brian Lilly within 24 hours of receipt of this letter.” Id. On July 2,
Boatwright again called in absent and asked to pick up a paycheck. Doc. 22 ¶ 10.4 On
July 6, Kerr and Lilly decided to terminate Boatwright’s employment due to his
unexcused absences, which totaled nine. Doc. 22 ¶ 11. When Boatwright came to the
Aspen Products plant to pick up a paycheck, Kerr and Lilly told Boatwright the decision
and their reason. Id. They also gave Boatwright a Georgia Department of Labor form
separation notice; in the place for “state fully and clearly the circumstances of the
separation,” they wrote, “[e]mployee has nine unexcused absences despite being
released by two different doctors for restricted light duty work.” Docs. 21 at 65:12-66:3;
21-1 at 55; 22 ¶ 11.
After his termination, Boatwright underwent an MRI and was ultimately
diagnosed with a fractured, not sprained, ankle. Doc. 24-1 at 2-4. That doctor,
however, also stated that Boatwright could complete light duty work but limited him to
sitting, and the doctor completed a statement of disability form describing Boatwright as
“totally disabled.” Id.
On October 19, 2015, Boatwright filed a charge of employment discrimination
with the Equal Employment Opportunity Commission, and the EEOC issued Boatwright
a right to sue letter on September 13, 2016. Docs. 1-1 at 1; 24-5 at 6. Boatwright then

4

At this point, it appears that Boatwright had not yet received the letter. See Doc. 21 at 59:22-60:1,
63:23-64:6 (Boatwright’s deposition, noting that July 3 was a work holiday and observing that the letter
was mailed July 2 but that he “probably” received it on July 6).

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filed this lawsuit, claiming that Aspen Products violated his rights under the Americans
with Disabilities Act by “issu[ing] an unfavorable decision . . . for nine . . . unexcused
absences and by not fully accommodating [Boatwright] in reference towards [his] injury
sustained on or about June 19, 2015.” Doc. 1 at 3.5
Aspen Products now moves for summary judgment on Boatwright’s claims,
arguing that, as a matter of law, Boatwright (1) is not “disabled” pursuant to the ADA; (2)
is not a “qualified individual” pursuant to the ADA; (3) cannot prove that Aspen Products
terminated his employment for discriminatory reasons rather than legitimate, nondiscriminatory reasons; and (4) cannot prove that Aspen Products failed to provide
reasonable accommodation to him pursuant to the ADA. Doc. 19-1.
II. SUMMARY JUDGMENT STANDARD
A.

Summary Judgment Standard Generally
A court shall grant summary judgment “if 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). In determining whether a genuine dispute of
material fact exists, “[t]he evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986) (citation omitted). A material fact is any fact relevant or necessary

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Boatwright also originally pursued claims against Aspen Products plant manager Brian Lilly and
production manager Jay Kerr, but those claims were dismissed on screening. Docs. 1 at 3; 5 at 3.
Additionally, in his response to the motion for summary judgment, Boatwright states, “Plaintiff alleges that
he was ultimately terminated based upon his disability and for his complaints of unlawful discrimination.”
Doc. 24 at 2. The last part of that sentence uses the language of ADA retaliation, but nowhere in his
complaint or anywhere else has Boatwright alleged retaliation or stated facts that would allow a
reasonable jury to return a verdict for him as to retaliation under the ADA. See, e.g., 42 U.S.C. §
12203(a) (“No person shall discriminate against any individual because such individual has opposed any
act or practice made unlawful by this chapter or because such individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”);
Stewart v. Happy Herman’s Cheshire Bridge, 117 F.3d 1278, 1287 (11th Cir. 1997) (identifying the
elements a plaintiff must show to establish a prima facie case of retaliation and specifying that the inquiry
tracks the burden-shifting framework of McDonnell Douglas). Rather, Boatwright’s claims are for wrongful
termination and failure to accommodate under the ADA. See generally Doc. 1.

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to the outcome of the suit. Id. at 248. And a factual dispute is genuine “if the evidence
is such that a reasonably jury could return a verdict for the non[-]moving party.” Id.
B.

ADA Claims
Pursuant to the Americans with Disabilities Act and the Americans with

Disabilities Act Amendments Act of 2008, “[n]o covered entity shall discriminate against
a qualified individual on the basis of disability in regard to job application procedures,
the hiring, advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42 U.S.C. §
12112(a). “Discriminating” as prohibited by the ADA in the employment context
includes “not making reasonable accommodations to the known physical or mental
limitations of an otherwise qualified individual with a disability who is an applicant or
employee, unless such covered entity can demonstrate that the accommodation would
impose an undue hardship on the operation of the business of such covered entity.” 42
U.S.C. § 12112(b)(5)(A).
C.

Burden-Shifting Framework for Discrimination Claims Based on
Circumstantial Evidence
Like many plaintiffs pursuing claims of employment discrimination, Boatwright

does not rely on direct evidence of discrimination for his wrongful termination claim.
See generally Docs. 1 (complaint); 24 (response to motion for summary judgment).
Accordingly, the burden-shifting analysis established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), applies. See Hilburn v. Murata Elec. N. Am., Inc., 181
F.3d 1220, 1226 (11th Cir. 1999) (“The familiar burden-shifting analysis of Title VII
employment discrimination actions is equally applicable to ADA claims.” (citation
omitted)). Under the McDonnell Douglas approach, Boatwright must first establish a
prima facie case of discrimination; to establish a prima facie case, Boatwright must
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prove by a preponderance of the evidence that he “(1) is disabled, (2) is a qualified
individual, and (3) was subjected to unlawful discrimination because of [his] disability.”
Id. (citation omitted).6
If Boatwright establishes a prima facie case, a presumption of discrimination is
created, and Aspen Products has the burden of articulating legitimate, nondiscriminatory reasons for the termination. See Cleveland v. Home Shopping Network,
Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (citation omitted). At this stage, Aspen
Products “need not persuade the [C]ourt that it was actually motivated by the proffered
reasons” but must instead produce evidence sufficient to raise a genuine issue of fact
as to whether it discriminated against Boatwright. Kragor v. Takeda Pharm. Am., Inc.,
702 F.3d 1304, 1308 (11th Cir. 2012) (quotation marks and citations omitted). If Aspen
Products does so, Boatwright can still avoid summary judgment if he produces sufficient
evidence from which a reasonable jury could conclude that Aspen Products’s articulated
non-discriminatory reasons are pretext for discrimination. See Cleveland, 369 F.3d at
1193.
III. DISCUSSION
Because Boatwright is proceeding pro se, the Court construes his complaint and
other filings liberally and in the light most favorable to him. See Miller v. Donald, 541
F.3d 1091, 1100 (11th Cir. 2008) (internal quotation marks and citation omitted). His
complaint so construed, Boatwright asserts claims against Aspen Products for violating
his rights under the ADA by (1) discriminatorily terminating his employment and (2)

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The third prong should not be read to require an employee to prove the ultimate fact of discrimination in
his prima facie case. See Sneed v. Ken Edwards Enter., Inc., 2009 WL 10672371, at *1 (N.D. Ga.)
(noting that the third prong as stated in Hilburn would require the plaintiff to “prov[e] his entire case as
part of his prima facie case” and that “the practice of the Eleventh Circuit, if not the language of the
Eleventh Circuit,” requires the plaintiff to show only that an adverse employment action was taken as the
third prong of the prima facie case).

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failing to accommodate his disabilities. Doc. 1. Aspen Products argues that
Boatwright’s claims fail because, as a matter of law, Boatwright (1) is not “disabled”
pursuant to the ADA; (2) is not a “qualified individual” pursuant to the ADA; (3) cannot
show that Aspen Products terminated his employment for discriminatory reasons rather
than legitimate, non-discriminatory reasons pursuant to McDonnell Douglas; and (4)
cannot show that Aspen Products failed to reasonably accommodate his alleged
disability. Docs. 19; 19-1. Because, as a matter of law, (1) Boatwright has failed to
meet his burden under McDonnell Douglas as to the wrongful termination claim and (2)
Aspen Products reasonably accommodated his alleged disability, the Court finds that
summary judgment is appropriate regardless of whether Boatwright was “disabled” or a
“qualified individual” pursuant to the ADA.7
A.

Wrongful Termination Claim
Boatwright claims that he was wrongfully terminated because of his disability, in

violation of the ADA. Aspen Products claims that it terminated Boatwright’s employment
because of his unexcused absences. Doc. 19-1 at 1.
Indeed, Aspen Products’s employee handbook, which Boatwright signed an
acknowledgement of his obligation to read, stated that a “total of [six] absences or

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Accordingly, the Court assumes without deciding that Boatwright was “disabled” and a “qualified
individual” pursuant to the ADA at the time of the adverse employment actions. The record suggests that
Boatwright was, as a matter of law, not “disabled” because of the relatively temporary and minor nature of
his injury and, if he were, he was not a “qualified individual” because his position required him to
maneuver around and manipulate massive machinery. See, e.g., 42 U.S.C. § 12102(1) (defining
“disability” as having, having a record of, or being regarded as having a physical or mental impairment
that “substantially limits one or more major life activities”); 42 U.S.C. § 12111(8) (defining “qualified
individual” as “an individual who, with or without reasonable accommodation, can perform the essential
functions of the employment position”); Doc. 22 at ¶¶ 3, 14 (affidavit of Aspen Products production
manager Jay Kerr, swearing as to the nature of Boatwright’s employment position and the danger the
heavy machinery presents to employees who need crutches or wheelchairs); but see, e.g., Lewis v. Union
City, 877 F.3d 1000, 1010 (11th Cir. 2017) (“Congress amended the ADA by enacting the ADA
Amendments Act of 2008 (the ‘ADAAA’) with the goal of broadening the interpretation of a disability under
the ADA.”). But on this record, as discussed below, the grounds for summary judgment the Court
chooses are simply much more definitive than these grounds.

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tardiness [sic] will be subject to discipline[,] up to and including termination within a 12
month rolling calendar year.” Doc. 21-1 at 15, 20. Both the letter production manager
Kerr prepared and the separation notice provided to Boatwright document that Aspen
Products considered Boatwright’s absences to be unexcused. Id. at 54-55. And Kerr
swore in an affidavit that Aspen Products stresses the importance of attendance in its
employee policies and orientation, and that over the past three years he has “terminated
approximately 100 people for violation of the attendance policy.” Doc. 22 ¶ 12. Plainly,
Aspen Products has stated a legitimate non-discriminatory reason to terminate
Boatwright.
Accordingly, the burden shifts back to Boatwright to establish that a reasonable
jury could find that Aspen Products’s stated reason constitutes pretext. To establish
pretext pursuant to the burden-shifting analysis, plaintiffs must point to “such
weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in
[defendants’] proffered legitimate reasons for its actions that a reasonable factfinder
could find them unworthy of credence.” Springer v. Convergys Customer Mgmt. Grp.,
Inc., 509 F.3d 1344, 1348-49 (11th Cir. 2007) (quotation marks and citations omitted).
Further, “[i]f the proffered reason is one that might motivate a reasonable employer,”
plaintiffs “must meet [that reason] head on and rebut it,” rather than disputing the
wisdom of the employer’s reasoning. Id. at 1350 (quotation marks and citation omitted);
see also Chapman v. Al Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (stating that, in
the employment discrimination context, “[f]ederal courts do not sit as a super-personnel
department that reexamines an entity’s business decisions,” but rather their “inquiry is
limited to whether the employer gave an honest explanation of its behavior” (quotation
marks and citation omitted)).

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Even liberally construing Boatwright’s filings, it is difficult to find a cognizable
argument, much less evidence from which a reasonable jury may find, that Aspen
Products’s stated reason was pretext. Boatwright argues that Aspen Products was fully
aware of his injury but “disregarded and terminated [him] before the second treating
physician had fully and thoroughly diagnosed said injury—which in fact was a severe
peroneal tendonitis and a severe fracture of calcaneus” rather than a sprain. Doc. 24 at
4-5. However, whether Aspen Products knew the full extent of Boatwright’s injury does
not bear on whether Aspen Products’s stated reason was pretext. As the letter Kerr
prepared shows, Aspen Products considered Boatwright to have missed seven shifts
without a valid excuse. Doc. 21-1 at 54. This total grew to nine by the time Boatwright’s
employment was terminated. Id. at 55. Boatwright has not identified any similarlysituated employees outside of his protected class who were not disciplined for
comparable infractions. Indeed, Kerr swore in his affidavit that he has “terminated
approximately 100 people for violation of [Aspen Products’s] attendance policy” over the
past three years. Doc. 22 ¶ 12. And in the employee handbook, Aspen Products
explained that “[e]very employee is needed to keep the plant running smoothly and your
absences cause hardship to your fellow employees who must cover your position as
well as their own,” specified how to excuse absences, and noted that a “total of [six]
absences or tardiness [sic] will be subject to discipline[,] up to and including termination
within a 12 month rolling calendar year.” Doc. 21-1 at 15, 19-20. In sum, Aspen
Products has shown that it took absences seriously and that Boatwright had what it
considered to be nine consecutive unexcused absences, and Boatwright has failed to
establish “such weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in [Aspen Products’s] proffered legitimate reasons for its actions that a

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reasonable factfinder could find them unworthy of credence” to survive summary
judgment. Springer, 509 F.3d at 1348-49 (quotation marks and citation omitted).
B.

Failure to Accommodate Claim
Boatwright also claims that Aspen Products violated his rights under the ADA by

failing to reasonably accommodate his disability. Boatwright complains that he was
never granted unpaid medical leave, and in his deposition he testified that he requested
to return to his machine operator job with crutches but was denied this accommodation.
Docs. 21 at 28:18-22, 29:2-12, 30:8-16; 24 at 3.
But “[t]he use of the word ‘reasonable’ as an adjective for the word
‘accommodate’ connotes that an employer is not required to accommodate an
employee in any manner in which that employee desires.” Earl v. Mervyns, Inc., 207
F.3d 1361, 1367 (11th Cir. 2000) (quoting Stewart v. Happy Herman’s Cheshire Bridge,
Inc., 117 F.3d 1278, 1285 (11th Cir. 1997)). An employer is not required to grant the
accommodation of an employee’s choice, or “the maximum accommodation or every
conceivable accommodation possible”—merely a “reasonable” one. Stewart, 117 F.3d
at 1285-86 (quotation marks and citations omitted). An accommodation is “reasonable”
if it allows the employee to perform the essential functions of the job. Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1259-60 (11th Cir. 2001) (citations omitted).
Aspen Products offered to reasonably accommodate Boatwright. Aspen
Products has set forth uncontroverted evidence that it instructed Boatwright that light
duty work would be available for him in the form of modified duties at a chair and table,
including counting, inventorying, or inspecting product. Doc. 22 ¶¶ 13-14. That work
would have conformed with the doctors’ orders that Boatwright avoid lifting, pushing,
pulling, carrying, walking or standing for more than 20 minutes at a time, or going long
periods without icing and elevating his injured ankle; the work would have even
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conformed with the orders to only work while seated, which Boatwright received after
his MRI and which Aspen Products could not have known. Doc. 21-1 at 49-50; 24-1 at
2-4. And Kerr swore in an affidavit that he “would approximate at least 20 different
instances” of Aspen Products granting work accommodations of various kinds during his
seven-year tenure. Doc. 22 ¶¶ 2, 15. Accordingly, Aspen Products, as a matter of law,
did not fail to reasonably accommodate Boatwright.8
Boatwright also testified in his deposition that on or around July 13 he “verbally
talked to [Aspen Products] on his cell phone and asked them could I come back and
perform” in an accommodated role. Doc. 21 at 32:19-33:17. But by that point
Boatwright had already been dismissed from his job and replaced because of his
unexcused absences, and Aspen Products no longer had a duty to accommodate.
When Aspen Products did have a duty to accommodate, it offered a reasonable
accommodation to Boatwright. Boatwright did not accept the accommodation.
Accordingly, summary judgment is required on his failure to accommodate claims.
IV. CONCLUSION
For the reasons discussed above, the motion (Doc. 19) is GRANTED.
Boatwright’s claims are accordingly DISMISSED with prejudice.
SO ORDERED, this 18th day of June, 2018.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

8
The record also suggests that Boatwright’s preferred accommodations would have been unnecessary or
problematic. Unpaid leave is sometimes required as a reasonable accommodation for an employee with
a disability. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1263 (11th Cir. 2007) (noting that
sometimes employers must modify leave policies as a form of accommodation). But, even assuming that
Boatwright was a qualified individual with a disability, all three doctors prescribed light work duty, not
unpaid leave. Docs. 21-1 at 49-50; 24-1 at 2-4. As for Boatwright’s other proposed accommodation,
operating the machine with his crutches, it is the uncontroverted sworn testimony of Kerr that operating
heavy machinery with crutches was unsafe and that the light duty work was available because of such
safety concerns. Doc. 22 ¶ 14.

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