Equal Employment Opportunity Commission v. Dolgencorp, LLC

Filing 48

ORDER granting 34 Motion ; granting 42 Motion to Continue; granting 43 Motion to Continue. Signed by Magistrate Judge G. R. Smith on 5/11/18. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff, and
TERRI T. MOSLEY,
Plaintiff-Intervenor,
v.
DOGENCORP, LLC, d/b/a DOLLAR
GENERAL,
Defendant.

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CV617-100

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ORDER
In this Americans with Disabilities Act (ADA) complaint, where
plaintiffs contend defendant regarded plaintiff-intervenor Terri T.
Mosley as having a disability 1 and denied her employment because of it,
defendant seeks an order directing Mosley to submit to a functional
capacity evaluation (FCE) and to continue all deadlines.

Defendant

argues that because “Mosely’s physical ability to perform the essential

1

Mosley has “a brachial plexus injury” to her left arm “that substantially limits her
in major life activities, including the operation of the neurological and
musculoskeletal systems,” requires her to wear a sling, and leaves her use of her left
arm “very limited.” Doc. 14 (intervenor complaint) at ¶ 9.

functions of the sales association position she sought at Dollar General,
with or without reasonable accommodation, is a threshold issue in this
case,” an FCE is needed to “provide the parties and the Court an
objective and relevant assessment of Mosley’s ability to perform tasks
that mirror the essential functions of the relevant position.” Doc. 34 at
1; doc. 35 at 5-6 (noting that Mosley initially consented to an FCE, but
withdrew that consent).
The EEOC and Mosley oppose, arguing that an FCE will not be
relevant to the issue of whether Mosley could have performed the
essential functions of her job in September 2015 (the relevant period)
and there is sufficient evidence of her ability to perform the essential
functions of the position without an FCE. Docs. 37 & 39. They also
oppose defendant’s request to further2 modify the Scheduling Order,
arguing that it has not shown good cause for its delay in either deposing
Mosley’s own identified treating physicians or previously seeking an
FCE. Doc. 37 at 4-5 (noting that defendant has known since at least the
time it filed its answer to Mosley’s intervenor complaint and asserted she

2

Defendant previously requested, and received, a 30-day extension of the close of
discovery to conduct “focused discovery” on Mosley’s application for Social Security
Disability Insurance benefits. See docs. 30 at 2 & 33.
2

was not physically qualified to do the job and pursue an ADA claim, that
her physical ability was a threshold issue in the case); doc. 39 at 1 (same
as to defendant’s answer to the EEOC’s complaint).
Though Rule 35 does not set a hard deadline for filing a motion for
an FCE, “by its terms [the rule] necessarily generates an expert report”
and thus must “be timed in compliance with the deadlines prescribed by
the Court.” Roberson v. Church, 2009 WL 4348692 at *1 (M.D. Fla. Nov.
24, 2009). In other words, a party seeking an FCE must comply with
Rule 26(a)(2), which governs the disclosure of witnesses “retained or
specially employed to provide expert testimony in the case.”

Id.

“Because the expert witness discovery rules are designed to allow both
sides . . . to prepare their cases adequately and to prevent surprise, [cit.],
compliance with the requirements of Rule 26 is not merely aspirational.”
Cooper v. S. Co., 390 F.3d 695, 728 (11th Cir. 2004), overruled on other
grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006); see Fed. R.
Civ. P. 26(a)(2)(A) (applying its disclosure requirement to “any witness
[a party] may use at trial to present evidence under Federal Rule of
Evidence 702, 703, or 705.”). The expert-disclosure deadline passed in
January 2018, more than two months before defendant filed the instant
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motion. Docs. 21 & 27 (defendant’s deadline to furnish expert witness
reports and disclosures was January 26, 2018). And defendant asked for,
and received, an extension to the Scheduling Order deadlines to complete
fact discovery, with nary a peep about an FCE or expert needed to assess
plaintiff’s physical abilities. Doc. 30 at 2.
Defendant responds with incredulity, questioning the sincerity of
Mosley’s disability if she is unwilling to submit to a “neutral
examin[ation].” Doc. 40 at 2. It also, however, explains that the FCE is
not to generate an expert opinion about Mosley’s functional ability -- it is
to garner a physician’s “lay opinion testimony” about his or her
“reasonable opinions” of Mosley’s abilities and limitations “based on
their personal knowledge and observations.” Id. at 2-3. As defendant
would have it, unless and until the examiner “crosses the line from lay to
expert testimony” by basing their testimony “on a hypothesis, not on the
experience of treating the patient,” that witness is exempt from the
requirements of Rules 26 and 35. Id. at 3. In other words, the motion is
timely because the examiner would be merely a passive observer and
recorder

of

Mosley’s

physical

functioning,

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offering

no

expert

interpretation or evaluation. 3 Id. at 3-4.
The Court is skeptical, but it acknowledges that a physician who
has observed plaintiff could offer mere observations of what she did while
being observed. It is difficult, of course, to fully evaluate whether those
observations tread into expert territory when they are not before the
Court. For example, defendant contends the “examiner’s observations
will [ ] focus on job-related abilities such as whether Mosley can lift a 40pound item properly and do so on a frequent basis, whether she can lift
55 pounds on occasion, and whether she can ascend and descend ladders
while carrying merchandise.” Doc. 35 at 7.
While the Court can imagine an obstacle course-like regimen that
could evaluate such abilities without necessarily requiring “scientific,
technical, or other specialized knowledge,” it is not clear that
hypothesizing plaintiff’s capacities from even a multi-hour examination
will not “cross the line” from concrete observation to speculation, and

3

As plaintiff-intervenor notes, the hallmark of Rule 35 examinations is that a
written report outlining “findings, including diagnoses, conclusions, and the results
of any tests” must be submitted -- essentially, an expert generates an expert report.
Doc. 44 at 3. It is unclear why, if no such report is generated or necessary, an
examining physician is even needed, rather than asking Mosley herself to admit,
under oath, whether she can do those things or asking any lay person to observe her
doing them. The need for a physician to observe her is unaddressed by either party,
however.
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thus, into expert territory. (After all, the examiner could watch her lift a
40-pound item 50 times, but then be barred from drawing any conclusion
as to her ability to lift it a 51st time or assess her ability to do so
successfully over the course of an 8-hour day). Without the evaluation
itself, and despite its skepticism, the Court cannot yet make that call.
And, because the FCE has not yet proven itself to be an expert opinion
smuggled in under the pretense of non-expert discovery, the Court also
cannot determine that it is untimely requested.
So, if defendant wants such a consultation, limited to observing
plaintiff-intervenor’s physical capacity as demonstrated and not as
surmised from that demonstration, it may have one. This, of course,
with the caveat that this grant is no guarantee that the selected
physician’s testimony will be relevant (compare docs. 39 at 8-9 & 44 at 46 (arguing that any such observations in spring 2018 will not be relevant
to plaintiff’s abilities in September 2015), with Deposition of Terri T.
Mosley at 47-49 (testifying that since her 2013 injury, she has had
virtually no use of her hand and arm)) or ultimately held to be
inadmissible Fed. R. Evid. 702 expert testimony (for example, by offering
an expert opinion about how Mosley’s current functional abilities
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correlate to her prior functional abilities or rebuttal testimony to
undermine Mosley’s treating physicians’ observations and opinions as to
her condition). The Court will have to await the results of the FCE
before weighing in.
Defendant’s request for an amendment to the Scheduling Order, a
functional capacity evaluation, and expedited ruling are therefore
GRANTED. Docs. 34, 42, & 43. Defendant is directed to schedule an
FCE complying with the narrow authorization of this Order, and the
Scheduling Order is commensurately amended to extend the fact
discovery deadline to May 31, 2018, and the dispositive motion deadline
to June 30, 2018.
SO ORDERED, this 11th

day of May, 2018.

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