Parker v. Metropolitan Government of Nashville and Davidson County, Tennessee

Filing 54

MEMORANDUM OPINION OF THE COURT. Signed by Chief Judge Kevin H. Sharp on 1/15/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHRIS PARKER,
Plaintiff,
v.
METROPOLITAN GOVERNMENT
OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE,
Defendant.

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No. 3:14-cv-00959
Judge Sharp
Magistrate Judge Brown

MEMORANDUM
Pending before the Court is Defendant Metropolitan Government of Nashville and
Davidson County’s Motion for Summary Judgment (Docket No. 43), to which Plaintiff has
responded in opposition (Docket No. 49) and Defendant has replied (Docket No. 51). For the
reasons set forth below, Defendant’s motion will be granted and this case dismissed.
I.

Factual & Procedural Background

Unless stated otherwise, the following facts are drawn from Defendant’s Statement of
Undisputed Material Facts and Plaintiff’s Response thereto. (Docket Nos. 45, 50). Plaintiff
Chris Parker began working for Defendant in the Davidson County Sheriff’s Office (“DCSO”) as
a correctional officer in 2007. DCSO promoted Plaintiff to Corporal in March 2011. In that role
Plaintiff’s duties included monitoring inmates; apprehending and restraining inmates as needed;
searching inmates, cells, and visitors; preparing incident reports; and providing security when
inmates traveled to other destinations.
Plaintiff was involved in two separate inmate altercations in 2011. First, in May 2011, an
inmate assaulted Parker, striking him on the face with handcuffs. (Docket No. 44 at 3). Plaintiff

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requested and received leave under the Family Medical Leave Act (“FMLA”) for high blood
pressure shortly thereafter and remained on leave from July 3, 2011 to August 14, 2011. Id. The
next altercation occurred on September 25, 2011, when an inmate again struck him in the head.
Id. Plaintiff reported injuries to his face, wrist, elbow, and knee. Id. Despite these injuries,
Plaintiff returned to work as usual on September 26, 2011. Id. In February 2012, DCSO Chief
of Security, Jaime Johnson, spoke with Plaintiff and developed some concerns about Plaintiff’s
fitness for duty, namely, Plaintiff’s psychological stability. (Docket No. 43-10). Johnson then
referred Plaintiff for a psychological fitness for duty evaluation. (Docket No. 43-11). Two
doctors evaluated Plaintiff and found him unfit for duty until at least May 1, 2012 and a third
doctor, Plaintiff’s treating psychologist, agreed. According to his doctors, Plaintiff suffers from
Post-Traumatic Stress Disorder (“PTSD”).

(Docket No. 44 at 4-5).

Based on the above

diagnosis and evaluations, Plaintiff again went out on FMLA leave.
By May 1, 2012, Plaintiff had exhausted all 12 weeks of the leave available to him under
the FMLA. However, the evaluating doctors still deemed him unfit for duty. DCSO reacted by
improperly terminating Plaintiff without providing him with due process on May 7, 2012.
Recognizing its mistake, DCSO rescinded the termination on May 30, 2012, reinstated Plaintiff,
and paid him the salary due to him during the period of termination.

Even after his

reinstatement, Plaintiff remained unfit for duty and, by then, had exhausted his FMLA leave.
With the encouragement of DCSO, Plaintiff applied for and received a disability pension starting
in October 2012. An employee who receives a disability pension has not been terminated as an
employee but rather has been administratively moved to the Benefit Board. Continuing through
June of 2015, Plaintiff’s doctors represented that Plaintiff could not work return to work for
DSCO as a corporal. Plaintiff’s filings also indicate that he remained on the Benefit Board

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payroll as recently as May 2015, when a representative of Defendant was working to find him
another suitable position. (Docket No. 49-3). Plaintiff does not allege that he or his doctors
sought and were denied an accommodation.
Plaintiff timely filed a Charge of Discrimination with the Equal Employment Opportunity
Commission and subsequently initiated the instant litigation. He alleges that the May 2012
termination—which was later rescinded—and his voluntary switch to the Benefit Board
constitute unlawful discriminatory terminations. Defendant opposes the characterization of these
events as terminations and argues that Plaintiff cannot prove a prima facie case of disability
discrimination. The Court agrees with Defendant.
II.
A.

Legal Analysis

The Summary Judgement Standard
The standards governing summary judgment are well known.

A party may obtain

summary judgment if the evidence establishes there are no genuine issues of material fact for
trial and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c);
Covington v. Knox Cnty., Sch. Sys., 205 F.3d 912, 914 (6th Cir. 2000). A genuine issue exists
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). In ruling on a motion for summary
judgment, the Court must construe the evidence in the light most favorable to the nonmoving
party, drawing all justifiable inferences in his or her favor. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B.

Plaintiff’s Claims Under the ADA
Plaintiff alleges that he was terminated in violation of the Americans with Disabilities

Act, 42 U.S.C. § 12101 et seq. (“ADA”). (Docket No. 1 at ¶ 34). An employee may prove

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discrimination based on disability in violation of the ADA in two ways. The first method of
proof requires the employee to put forward direct evidence that the defendant had a
discriminatory motive in carrying out its employment decision. Smith v. Chrysler Corp., 155
F.3d 799, 805 (6th Cir. 1998) (citation omitted). Direct evidence might “take the form, for
example, of an employer telling an employee, ‘I fired you because you are disabled.’” Id. Under
the direct evidence model, “if the fact-finder accepts the employee’s version of the facts, no
inference is necessary to conclude that the employee has proven this form of discrimination.”
Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007) (citing Jacklyn v.
Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999)).
Courts recognize that direct evidence of a discriminatory animus is rare. Employees may
also, therefore, prove discrimination through the indirect burden-shifting approach first
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Burress v.
City of Franklin, Tenn., 809 F. Supp. 2d 795, 810 (M.D. Tenn. 2011). To make out a prima facie
case of employment discrimination through indirect evidence under [the ADA], a plaintiff must
show that 1) he or she is disabled; 2) otherwise qualified for the position, with or without
reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew
or had reason to know of the plaintiff’s disability; and 5) the position remained open while the
employer sought other applicants or the disabled individual was replaced.”

Whitfield v.

Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011) (resolving “confusion in this circuit” over the
proper elements of an ADA employment discrimination claim).1

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Plaintiff’s Response in Opposition to Defendant’s Motion for Summary Judgment includes language
and arguments typically found in a failure to accommodate claim under the ADA. However, Plaintiff did
not plead such a claim and has not identified a single accommodation sought—whether explicitly or
implicitly—that would provide the foothold for such a claim. Accordingly, the Court has treated
Plaintiff’s claim like a general disability discrimination claim.

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Plaintiff repeatedly asserts that he is proving disability-based discrimination using direct
evidence. (Docket No. 49 at 6-8). Despite these statements, Plaintiff presents absolutely no
direct evidence of discrimination and instead seems to apply the indirect evidence analysis. Yet
Plaintiff also fails the indirect evidence analysis because he has shown neither that he is
otherwise qualified for the position, nor that he actually suffered an adverse employment action.
Thus, regardless of which method of proof Plaintiff attempts to use, his claims under the ADA
fail.
Because Plaintiff simply has not put forth any direct evidence of discrimination, the
Court will not dwell on that method of proof. Turning to the indirect evidence analysis, the
Court finds that Plaintiff was not otherwise qualified for the position. “In order to show that a
plaintiff is qualified, she must prove that she was performing her job at a level which met her
employer’s legitimate expectations.” Newcomb v. Allergy & ENT Associates of Middle Tenn.,
P.C., No. 3:10-cv-1230, 2013 WL 1874257, at *10 (M.D. Tenn. May 3, 2013) (internal quotation
marks and citations omitted), amended in part, No. 3:10-cv-1230, 2013 WL 3976627 (M.D.
Tenn. Aug. 2, 2013). Plaintiff has admitted that his doctors stated in May 2012 that “there are no
reasonable accommodations that would help [Plaintiff] perform differently on the job and remain
on duty as a corrections officer at this time.” (Docket No. 43-21 at 2). Plaintiff also admitted
that his doctors repeatedly found him unfit for duty, including as recently as June of 2015.
(Docket No. 50 at ¶ 13). Indeed, Plaintiff himself has continued to confirm his lack of fitness
well into this litigation. (Docket No. 49-3) (May 25, 2015 email to Plaintiff’s counsel noting that
“it is Mr. Parker’s opinion that he cannot return to work at DCSO in the three positions offered
to him.”). Plaintiff has not been able to complete his job duties, with or without accommodation,

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since early 2012. Accordingly, Plaintiff is not qualified for the position of Corporal at DCSO
within the meaning of the ADA.
Even if Plaintiff were somehow qualified, which he is not, there has not been an adverse
employment action. Defendant rescinded Plaintiff’s May 2012 termination and provided him
with full recompense for the three-week period between his termination and reinstatement. The
Sixth Circuit has stated unequivocally “that when an employer imposes an employment action
that would be an adverse employment action but then quickly reverses the action, the employee
has not suffered an adverse employment action.” Keeton v. Flying J, Inc., 429 F.3d 259, 263
(6th Cir. 2005) (citing Birch v. Cuyahoga Cnty. Probate Ct., 392 F.3d 151 (6th Cir. 2004) and
Bowman v. Shawnee State Univ., 220 F.3d 456 (6th Cir. 2000)). Thus, the first termination did
not constitute an adverse employment action. Neither can Plaintiff construe his own decision to
apply for a disability pension as a termination. Plaintiff has admitted that a person “on a
disability pension is not terminated as an employee of the Metropolitan Government” but rather
“is administratively moved from the department to the benefit board.” (Docket No. 50 at ¶¶ 1617). Defendant did not terminate Plaintiff’s employment by encouraging him to seek a disability
pension. Plaintiff does not identify any other alleged adverse employment actions.2
Because Plaintiff was not qualified for the job and because he did not suffer any adverse
employment actions, he cannot establish a prima facie case under the ADA.
C.

Plaintiff’s Claims Under the FMLA
Plaintiff also claims that he has been discriminated and retaliated against for exercising

his rights under the Family Medical Leave Act, 29 U.S.C. § 2611 et seq. (“FMLA”). The FMLA

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To the contrary, the record reveals Defendant’s efforts to place Plaintiff in a suitable position, further belying
Plaintiff’s claims of an adverse employment action, (Docket No. 49-3) (May 25, 2015 email confirming that
Defendant offered Plaintiff three positions that “fit the job restrictions for Mr. Parker as identified by the Metro Civil
Service Medical Examiner.” ).

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entitles eligible employees up to twelve weeks of leave for any of a number of reasons, including
a “serious health condition that makes the employee unable to perform the functions of the
position of such employee.” Easter v. Asurion Ins. Servs., Inc., 96 F. Supp. 3d 789, 795 (M.D.
Tenn. 2015) (citing 29 U.S.C. § 2612(a)(1)(D)). Under the FMLA, “[a]n employer is prohibited
from discriminating against employees . . . who have used FMLA leave.”

29 C.F.R. §

825.220(c). The FMLA also prohibits employers from using “the taking of FMLA leave as a
negative factor in employment actions, such as hiring, promotions or disciplinary actions.” 29
C.F.R. § 825.220(c). Thus, employees may bring claims of retaliation under the FMLA.
As with claims under the ADA, where a plaintiff presents no direct evidence of
discrimination or retaliation, FMLA retaliation claims are analyzed under the McDonnell
Douglas burden-shifting framework. See Edgar v. JAC Products, Inc., 443 F.3d 501, 508 (6th
Cir. 2006). A Plaintiff may establish a prima facie case “showing that (1) she engaged in a
statutorily protected activity, (2) she suffered an adverse employment action, and (3) there was a
causal connection between the adverse employment action and the protected activity.” Bryson v.
Regis Corp., 498 F.3d 561, 570 (6th Cir. 2007). Once again, Plaintiff’s claims are thwarted by
the absence of an adverse employment action. Defendant twice supported Plaintiff’s decision to
take FMLA leave. Although Defendant improperly terminated Plaintiff when his FMLA leave
had expired and Plaintiff remained unfit for duty, Defendant swiftly worked to remedy this error,
thus precluding it from counting as an adverse employment action.

After this correction,

Defendant suggested another mechanism for him to remain an employee while taking the time he
needed to recover. Absent an adverse employment action, Plaintiff’s FMLA retaliation claim
necessarily fails.

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III.

Conclusion

Plaintiff has not shown a genuine dispute of material facts. Moreover, based on the facts
now on the record, Plaintiff cannot make out a prima facie case of discrimination or retaliation
under either the ADA or the FMLA. Defendant is therefore entitled to summary judgment on all
claims. An appropriate order shall enter.
It is SO ORDERED.
_______________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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