MARK E. FULLER, District Judge.
The plaintiff, Larry Anderson ("Anderson"), claims that his former employer, Georgia-Pacific Wood Products, LLC ("Georgia-Pacific"), is liable for disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended. Georgia-Pacific has filed a motion for summary judgment (Doc. #57). Upon consideration of the parties' briefs and the evidence presented in support thereof, the Court concludes that Georgia-Pacific's motion is due to be GRANTED on all of Anderson's claims.
This Court has federal question jurisdiction over Anderson's claims under 28 U.S.C. § 1331. The parties do not claim that the Court lacks personal jurisdiction over them, nor do they dispute that venue is proper under 28 U.S.C. § 1391(b), and
From around 1997 to 2008, Anderson worked as a maintenance technician at a mill in Thorsby, Alabama (the "Thorsby facility"), first with International Paper, and then with Georgia-Pacific after it took over the Thorsby facility in March 2007. (Compl. ¶¶ 6-7.) At the Thorsby facility, Georgia-Pacific manufactures engineered wood products, including laminated veneer lumber ("LVL"). LVL consists of layers of wood veneer and glue and is compressed to make structural timbers for use in homes and commercial buildings. (Deposition of John Skedgell ("Skedgell Dep.") at 7:21-25, Doc. #71-1.) Boilers, dryers, presses, saws, glues, and chemicals are used to manufacture LVL. Due to the manufacturing process, exposure to heat, humidity, fumes, and wood dust is common at Georgia-Pacific facilities. In general, the temperature and humidity at the Thorsby facility are high, particularly in the areas around the press and the boilers. (Skedgell Dep. at 81:9-18, Doc. #58-2.)
As a maintenance technician, Anderson was responsible for performing preventative maintenance, repairs, and inspections on all of the equipment at the Thorsby facility, and troubleshooting electrical and mechanical problems. (Deposition of Larry Anderson ("Anderson Dep."), at 62:4-14; 66:17-67:15, Doc. #58-3; Anderson Dep. Ex. 10, Doc. #59-4, at 19.) Anderson's job duties included cleaning and oiling the equipment, fabricating steel and welding parts, installing new equipment and replacement parts, aligning the equipment, and using and carrying hand and power tools throughout the Thorsby facility (Anderson Dep. at 62:4-64:14; 66:17-68:1; Anderson Dep. Ex. 10, Doc. #59-4, at 20.) Anderson's job required him to walk and stand for four hours a day, and to stoop, kneel, crouch, crawl, handle large objects, and reach for two hours a day. (Anderson Dep. Ex. 10, Doc. #59-4, at 19.)
In 2007, Kevin Dozier ("Dozier"), an African-American maintenance worker, and another Caucasian maintenance worker, were terminated after a fire occurred at the Thorsby facility.
Between September 2007 and April 2008, Anderson received two more disciplinary warnings. On March 10, 2008, Anderson received another warning for his pattern of unsafe conduct after he injured his left thumb while using a bench grinder to sand pieces of steel. (Anderson Dep. Ex. 22, Doc. #58-3, at 97; Anderson Dep. Ex. 20, Doc. #58-3, at 96; Anderson Dep. at 119:14-24.)
Throughout his employment at the Thorsby facility, Anderson suffered from chronic obstructive pulmonary disease ("COPD")
On May 9, 2008, Anderson was assigned to help install a new motor for the LVL hog. (Declaration of DeWayne Winslett ("Winslett Decl.") ¶ 6, Doc. #58-6.) After Anderson complained that the area was too dusty, the ground was wet down so that the dust would not be airborne. (Winslett Decl. ¶ 6.) The following day, Anderson informed his supervisor, DeWayne Winslett ("Winslett"), that he had spoken with his doctor and that he might be going to the emergency room because of his trouble breathing due to working in the dust the previous day. (Winslett Decl.
The following week, on May 14, 2008, Green met with Anderson and Winslett to talk about Anderson's disability and provided Anderson with a new FMLA medical certification form and job requirements form for Anderson's doctor to complete. (Affidavit of Bob Brown ("Brown Aff.") ¶ 6; Def.'s Ex. A, Doc. #59-2.) The job requirements form required Dr. Collins to assess if Anderson could perform the essential functions of his job. (Brown Aff. Ex. A, Doc. #59-2, at 10.) On May 30, 2008, Anderson turned in the job requirements form, in which Dr. Collins had noted that Anderson's restrictive lung disease permanently restricted him from working in conditions of extreme temperatures and humidity and from exposure to wood dust, fumes, gases, or chemicals. (Anderson Dep. Ex. 33, Doc. #58-3, at 109-111; Brown Aff. ¶ 8, Doc. #58-1.) Dr. Collins also noted that Anderson would require the protection of a respirator as an accommodation of his permanent physical restrictions if he was working in areas with exposure to dust and fumes. (Anderson Dep. Ex. 33, Doc. #58-3, at 109.) On the job requirements form, Dr. Collins indicated that Anderson could return to work on May 30, 2008, and that he could perform the essential functions of his job if he wore a respirator when working around dust, fumes, and chemicals. (Pl.'s Ex. 3, Doc. #71-1, at 37.)
After Anderson returned the job requirements form, Dale Mims ("Mims"), the safety manager at the Thorsby facility, was consulted about the feasibility of Anderson wearing a respirator. (Def.'s Ex. E, Doc. #59-2, at 14.) On June 3, 2008, Mims informed Brown that Anderson did not pass a 2002 pulmonary function test and that the registered nurse who administered the test told management that Larry Anderson could not wear a full-faced respirator. (Skedgell Dep. 103:23-25, Doc. #71-1; Def.'s Ex. E, Doc. #59-2.) The 2002 test indicated that Anderson had mild restrictive lung disease and predicted his forced expiratory volume over one second to be 68 percent (FEV-1).
On June 4, 2008, Brown met with the Thorsby facility manager, Gary Bittner ("Bittner"), and Anderson to talk about the restrictions imposed by Dr. Collins on the job requirements form. (Brown Aff. ¶ 10, Doc. #59-2.) At the meeting, Brown told
At the June 4, 2008 meeting, Brown and Bittner asked Anderson about accommodations other than wearing a respirator. (Brown Aff. ¶ 11.) After stating his opinion that Dr. Collins's restrictions did not apply to the entire Thorsby facility, Anderson advised that, in the past, his supervisors excused him from working in the dustiest areas of the plant. He also suggested they allow him to wear an over-the-counter dust mask. Brown and Bittner responded that his job required him to work throughout the plant, where he was exposed to the conditions to which Dr. Collins had objected — chemicals, sprays, dust, and extreme heat and humidity. (Brown Aff. ¶ 11.) After meeting with Anderson, Brown considered reassigning Anderson to another position but concluded that, in light of Dr. Collins's restrictions, there were no other available positions at the Thorsby facility for which Anderson could perform the essential functions with or without a reasonable accommodation.
On June 5, 2008, Brown sent Anderson a letter summarizing the previous day's meeting and advising Anderson that there were no available positions at the Thorsby facility that would satisfy his doctor's restrictions because dust, fumes, and chemicals were present throughout the Thorsby facility. (Def.'s Ex. F, Doc. #59-2, at 17.) In his letter, Brown also rejected Anderson's suggestion of wearing an over-the-counter dust mask, noting such masks were not impervious to heat, humidity, sprays, solvents, and even dust unless the mask is properly tested for the correct fit each time it is worn. (Def.'s Ex. F, Doc. #59-2, at 17.) At the end of the letter, Brown advised Anderson that unless Anderson corrected the information he had submitted or provided new information from his doctor, he would be terminated from his employment with Georgia-Pacific. (Def.'s Ex. F, Doc. #59-2, at 18.)
Anderson responded to Brown by email, reiterating that Dr. Collins's permanent restrictions applied only to the LVL houses and the chip bins and that Dr. Collins had tried to contact Brown by phone to explain this. (Def.'s Ex. G, Doc. #58-1, at 19.) Anderson pointed out that, for five years, he had been excused from working in the problem areas and that he had spent less than 2 percent of his time in them. (Def.'s Ex. G, Doc. #58-1, at 19.) Brown
In October and November of 2008, Anderson requested to be evaluated for return to work. (Def.'s Exs. K, L, & M, Doc. #58-1, at 24-26.) In this correspondence, he informed Georgia-Pacific that the medications he had been taking over the previous four months had greatly improved his condition, and he requested that a neutral physician of Georgia-Pacific's choosing perform another "fit test." (Def.'s Exs. K, L, & M, Doc. #58-1, at 24-26.) Brown responded that Georgia-Pacific had no reason to question the previous conclusions of Anderson's personal physician and Anderson's previous admission that he would not be able to pass a pulmonary function test. (Def.'s Ex. K, Doc. #58, at 24.)
On December 2, 2008, Brown again rejected Anderson's request to be evaluated by another physician and reiterated that there were no available positions for which he could perform the essential functions given the medical restrictions imposed by Dr. Collins. (Def.'s Ex. N, Doc. #58-1, at 27.) Brown further advised Anderson that unless he provided Georgia-Pacific with new information that his medical condition had improved to allow him to perform the essential functions of his job as a maintenance technician by December 8, 2008, Georgia-Pacific would consider him to have voluntarily resigned his employment. (Def.'s Ex. N, Doc. #58-1, at 27.) Having not received any information from a physician about any change in Anderson's medical restrictions, Georgia-Pacific sent Anderson a notice of termination on December 9, 2008. (Def.'s Ex. Q, Doc. #58-1, at 30.)
Shortly after being placed on short-term paid leave, Anderson began the process of applying for social security disability insurance ("SSDI") and veteran's disability benefits. On July 9, 2008, Anderson filed an application for increased compensation based on his unemployability with the Department of Veterans Affairs ("DVA"), declaring under oath that he was "let go from [his] job at Georgia-Pacific because of [his] COPD condition ..." and that his "service-connected disabilities preclude [him] from obtaining gainful employment." (Def.'s Ex. G, Doc. #59-5, at 2.) On April 29, 2009, the DVA issued a Rating Decision that stated that Anderson was only 70 percent disabled as of October 14, 2008, due to his posttraumatic stress disorder ("PTSD") and alcohol abuse in early remission. (Def. Ex. J, Doc. #59-8.) On March 10, 2010, the DVA issued another Rating Decision, in which it increased its evaluation of Anderson's COPD to 100 percent disabling, noting that "[a]n evaluation is granted whenever there is forced expiratory volume in one second (FEV-1) less than 40 percent predicted value." (Anderson Dep. Ex. 60, Doc. #59-4, at 54.)
On August 28, 2008, Anderson filed a disability report with the Social Security Administration ("SSA"), in which Anderson stated that he was "unable to perform any occupation" as of June 3, 2008, because of his conditions, which included COPD, PTSD, an undiagnosed
A motion for summary judgment looks to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). A court should grant summary judgment when the pleadings and supporting materials show that no genuine dispute exists as to any material fact and that the moving party deserves judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying" the relevant documents that "it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). To shoulder this burden, the moving party can present evidence to this effect. Id. at 322-23, 106 S.Ct. 2548. Or he can show that the non-moving party has failed to present evidence in support of some element of his case on which he ultimately bears the burden of proof. Id.
If the moving party meets its burden, the non-movant must then designate, by affidavits, depositions, admissions, or answers to interrogatories, specific facts showing the existence of a genuine issue for trial. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir.1995). And a genuine issue of material fact exists when the non-moving party produces evidence that would allow a reasonable fact-finder to return a verdict in his favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.2001). Thus, summary judgment requires the non-moving party to "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. Indeed, a plaintiff must present evidence demonstrating that he can establish the basic elements of his claim, Celotex, 477 U.S. at 322, 106 S.Ct. 2548, because "conclusory allegations without specific supporting facts have no probative value" at the summary judgment stage. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985).
A court ruling on a motion for summary judgment must believe the non-movant's evidence. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. It also must draw all justifiable inferences from the evidence in the nonmoving party's favor. Id. After the non-moving party has responded to the motion, the court must grant summary judgment if there exists no genuine dispute of material fact and the moving party deserves judgment as a matter of law. See Fed.R.Civ.P. 56(c).
The ADA prohibits an employer from discriminating 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). In order to establish a prima facie claim of discrimination under the ADA, a plaintiff must show that (1) he was disabled; (2) he was a "qualified individual" at the relevant time; and (3) he was discriminated against because of his disability. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir.2001). Georgia-Pacific does not dispute that Anderson has satisfied the first element-that Anderson was "disabled" under the ADA. The other two prongs, however, are contested by the parties.
A "qualified individual with a disability" is an "individual 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). Essential functions are "the fundamental job duties of a position that an individual with a disability is actually required to perform." Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir.2000) (citing 29 C.F.R. § 1630.2(n)(1)). If a plaintiff is unable to perform an essential function, even with a reasonable accommodation, he is not a qualified individual for purposes of the ADA. Davis v. Fla. Power & Light Co., 205 F.3d 1301, 1305 (11th Cir.2000). In other words, "a plaintiff who is totally disabled and unable to work at all is precluded from suing for discrimination" under the ADA. See Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1280 (11th Cir. 2005) ("[T]he ADA reserves its protections for individuals still able to perform the essential functions of a job, albeit perhaps with reasonable accommodation....").
The third element — that the plaintiff was discriminated against because of his disability — may be established by showing that an employer failed to "mak[e] reasonable accommodations to the known physical or mental limitations of the individual," unless the employer can demonstrate that the requested reasonable accommodation would impose an "undue hardship on the operation of [its] business." 42 U.S.C. § 12112(b)(5)(A); see also Holly v. Clairson Indus., 492 F.3d 1247, 1262 (11th Cir.2007) ("[A]n employer's failure to reasonably accommodate a disabled individual itself constitutes discrimination, so long as that individual is "otherwise qualified," and unless the employer can show undue hardship." (emphasis in original)). Reasonable accommodations may include:
42 U.S.C. § 12111(9)(B). Although the ADA requires an employer to make "reasonable accommodations" for an employee's known disability, "an employer is not required to accommodate an employee in any manner which that employee desires." Earl, 207 F.3d at 1367 (quoting Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir.1997)). An accommodation is reasonable and thus required under the ADA "only if it enables the employee to perform the essential functions of the job." Holly, 492 F.3d at
While the ADA may require that the employer "restructure a particular job by altering or eliminating some of its marginal functions," Lucas, 257 F.3d at 1260, the Eleventh Circuit has made it clear that "the ADA does not require the employer to eliminate an essential function of the plaintiff's job" to accommodate an employee's disability. Holly, 492 F.3d at 1256 (quoting D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1224 n. 2 (11th Cir.2005)). The burden of identifying an accommodation that would allow a qualified individual to perform the job rests with that individual, as does the ultimate burden of persuasion that the requested accommodation is a reasonable one. Stewart, 117 F.3d at 1286.
Anderson contends that Georgia-Pacific discriminated against him by failing to provide him with the following requested accommodations: (1) excusing Anderson from working in the dustiest areas of the plant that most exacerbated his lung condition — the LVL bag and hog houses — unless absolutely necessary, and allowing Anderson to wear a respirator when he is required to work in those areas;
Georgia-Pacific argues that, under the Supreme Court's holding in Cleveland v. Policy Management Systems, 526 U.S. 795, 805, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), Anderson's successful applications for disability benefits from the SSA and the DVA, in which he stated that he became unable to work and unemployable as of June 3, 2008,
To obtain social security disability benefits, an applicant must prove that he is disabled — that is, he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuing period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir.1999). To get benefits, the applicant's impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
Sworn statements claiming total disability that are made to obtain disability benefits do not automatically preclude a suit under the ADA, and there is no "special legal presumption" against the success of an ADA claim made by a person who has applied for and received disability benefits from the SSA. Cleveland, 526 U.S. at 805, 119 S.Ct. 1597. Nevertheless, to defeat summary judgment, an ADA plaintiff, who has previously sworn in a social security benefits application that he is unable to work
Thus, under Cleveland, a court's task is to "decide whether [a] plaintiff's assertions are genuinely in conflict, and if so, evaluate [the] plaintiff's attempt to explain away the inconsistency." Musarra v. Vineyards Dev. Corp., 343 F.Supp.2d 1116, 1121 (M.D.Fla.2004) (citing Detz v. Greiner Indus., Inc., 346 F.3d 109, 118 (3d Cir.2003)). A plaintiff may resolve this inconsistency by pointing to a reasonable accommodation not taken into account as a factor in the SSA's disability determination that, if made, would have allowed the plaintiff to perform the essential functions of the job he holds or desires. Kurzweg v. SCP Distrib., LLC, 424 Fed.Appx. 840, 843-44 (11th Cir.2011).
The Eleventh Circuit has explained that whether a certification of total disability on a social security disability application is inconsistent with an ADA claim depends on the "facts of the case, including the specific representations made in the application for disability benefits and the nature and extent of the medical evidence in the record." Talavera v. Sch. Bd. of Palm Beach Cnty., 129 F.3d 1214, 1220 (11th Cir.1997). Moreover, it is well settled that "an ADA plaintiff is estopped from denying the truth of any statements made in her disability application." Id.
The Court concludes that Anderson has failed to provide a sufficient explanation reconciling his sworn statements to the SSA and DVA that he was unable to work and permanently unemployable, and his corresponding, yet inconsistent contention here that at the relevant times — when he was placed on
In his SSDI application, Anderson stated that he was unable to work because of his disabling condition as of June 3, 2008, his last date of active employment with Georgia-Pacific. (Anderson Dep. Ex. 10, Doc. #58-3, at 82.) He further averred to the SSA that he became "short of breath with physical activity and exposure to high temperatures," and that he uses oxygen "when going outside, when sleeping, and when needed." (Anderson Dep. Ex. 10, Doc. #58-3, at 82.) He went on to state that his arms and legs became numb after sitting for a few minutes, that he was quick to anger, and that he suffered from headaches throughout the day. (Anderson Dep. Ex. 10, Doc. #58-3, at 82.)
Although Anderson argues that he could have performed the essential functions of his job with the accommodation of a respirator, and that this accommodation was not taken into account by the SSA, Anderson has directed the Court to no evidence that he was physically capable of wearing a respirator at the relevant time. Anderson complains about Georgia-Pacific's basis for refusing to consider the accommodation of a respirator — that Brown understood that he could not wear a respirator with his condition based on the 2002 pulmonary test and the fact that he had to stop participating on the safety rescue team, where the members had to wear oxygen masks. However, Anderson does not provide the Court with any affirmative evidence showing he was physically capable of wearing a respirator, and thus, that the use of a respirator would have been a reasonable accommodation given his medical condition. Indeed, in July and August of 2008, while he was on paid leave, he underwent two pulmonary function tests, each showing a significant decline in his forced expiratory volume as compared with the 2002 test Georgia-Pacific relied on when it decided that Anderson was not capable of wearing a respirator at work. It is undisputed that Anderson never submitted these 2008 test results to Georgia-Pacific in support of a request to be provided with a respirator, and that he never requested a respirator during the June 4, 2008 meeting with Georgia-Pacific.
Anderson has also failed to show that his request to be reassigned to a position in an air-conditioned booth, in particular, the senior press line operator position for which Anderson had the requisite training, was a reasonable accommodation Georgia-Pacific could have provided him. Anderson points to a hiring list to prove that two senior press line operator positions were filled while he was on paid leave, one in August 2008 and one in December 2008. However, Georgia-Pacific clarified in its reply and provided supporting evidence that the list upon which
Moreover, even if there had been a vacant senior press line operator position available, Anderson has presented no evidence that he could have performed the essential functions of that position given the permanent restrictions Dr. Collins placed on his exposure to dust, fumes, chemicals, extreme temperatures, and humidity. Georgia-Pacific has presented evidence that the senior press line operator position would have required him to perform inspections and troubleshoot mechanical problems and perform maintenance tasks on the production floor. Thus, even in this position, he would have been exposed to the working conditions from which he was permanently restricted. (Anderson Dep. at 184, Doc. #58-3; Smith Decl. ¶ 4, Doc. #71-2.) See Dickerson v. Sec'y, Dep't of Veterans Affairs Agency, 489 Fed.Appx. 358, 362 n. 4 (11th Cir.2012) (affirming summary judgment for employer where employee failed to identify "a reasonable accommodation that would have allowed her to avoid coming into contact with the other chemicals, substances and odors that were likely to trigger an allergic reaction"). In sum, Anderson cannot explain away the inconsistencies between his SSA and ADA claims by pointing to the fact that the SSA decision fails to take into account a reasonable accommodation, because Anderson has failed to identify any such accommodation.
Finally, Anderson argues that the facts of this case do not clearly demonstrate that he was trying to perpetrate a sham, as the district court found in Musarra, because, unlike the plaintiff in that case, he did not make simultaneous conflicting statements that he was disabled for the purpose of obtaining SSDI benefits and that he was ready, able, and willing to work for the purpose of obtaining unemployment compensation. Musarra, 343 F.Supp.2d at 1122. Although the Court admits that the facts of this case are distinguishable from Musarra, the Court rejects Anderson's notion that Cleveland requires courts to find evidence of a sham in order to reject a plaintiff's explanation of his inconsistent SSDI statements as insufficient to support a reasonable juror's conclusion that the plaintiff could have performed the essential functions of the job, taking the statements to obtain disability as true. After consideration of the sworn statements Anderson made to the SSA and DVA, Anderson's proffered explanation for the inconsistencies between those claims and his ADA claim, and the medical evidence in this case, the Court concludes that Anderson's explanation is insufficient and that Anderson's ADA claim is thus precluded.
Anderson claims that Georgia-Pacific's failure to accommodate his disability
Anderson claims that Georgia-Pacific retaliated against him for his EEOC complaint about race discrimination at the Thorsby facility by (1) not allowing Anderson to come back to work in May 2008 after his doctor placed permanent restrictions on his work environment; (2) refusing to continue to accommodate his disability as it had done in the past by allowing him to wear a respirator; (3) failing to reassign him to a vacant air-conditioned position that would not exacerbate his condition; and (4) terminating his employment. (Compl. ¶¶ 39-40; Pl.'s Corrected Br. in Response, Doc. #78, at 30.)
Georgia-Pacific argues that Anderson has pointed to no evidence establishing the requisite causal link between an adverse employment action Georgia-Pacific took against him and the protected activity in which he engaged. Georgia-Pacific further argues that Anderson has failed to point to any evidence that Georgia-Pacific's legitimate, non-discriminatory reasons for placing him on paid leave, failing to provide the accommodations he requested, and terminating his employment were pretextual.
As an initial matter, the Court agrees with Georgia-Pacific that Plaintiff has not pointed to any evidence that would establish the third prong of its prima facie case — that there was a causal connection between Anderson's statutorily-protected EEOC charge and any of Georgia-Pacific's alleged adverse actions against him. In order to establish the requisite "causal link" prong of a prima facie retaliation case, a plaintiff must show that "the protected activity and the adverse action were not wholly unrelated." Goldsmith v. City
Although a plaintiff may establish causation by showing that the statutorily-protected activity and the adverse employment action were close in time, id. at 798-99, temporal proximity, without more, must be "very close." Thomas, 506 F.3d at 1364 (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). The Eleventh Circuit has stated that "a three to four month disparity between the statutorily protected expression and the adverse employment action is not enough." Thomas, 506 F.3d at 1364.
Anderson has failed to direct the Court to evidence to prove the requisite causal link between his EEOC charge and any of the alleged adverse employment actions Georgia-Pacific took against him. First, Anderson has pointed to no direct or circumstantial evidence that Georgia-Pacific was aware of his EEOC charge. In his response brief, Anderson offers the following evidence to prove a causal link: (1) Brown's assertion that Dr. Collins had not released Anderson back to work; (2) Brown's refusal to send Anderson to another physician selected by Georgia-Pacific; and (3) Brown's basis for deciding that Anderson's use of a respirator was not a reasonable accommodation given his medical condition. (Pl.'s Corrected Br. in Resp., Doc. #78, at 30.) None of this evidence goes to establish that Georgia-Pacific was aware of Anderson's EEOC charge. Moreover, the temporal proximity of the protected activity and the alleged adverse employment actions in this case is insufficient, standing alone, to show a causal link. The record shows that Georgia-Pacific did not take any alleged adverse action against Anderson until early June 2008, almost three months after Anderson filed his EEOC charge on March 12, 2008. The Court concludes that this temporal proximity, without more, is insufficient to establish the causal link of Anderson's prima facie case. See Thomas, 506 F.3d at 1364.
Even if Anderson had satisfied the causal connection prong of his prima facie case, he has failed to rebut any of Georgia-Pacific's proffered legitimate, non-discriminatory reasons for its actions. The Court will address each action in turn.
Anderson contends that Georgia-Pacific's placing him on short-term leave after receiving the medical documentation from his doctor about his permanent restrictions was done in retaliation for his EEOC charge of race discrimination. It is undisputed that prior to receiving the job requirements form that Dr. Collins filled out in May 2008, Georgia-Pacific had never before received any medical record imposing any permanent medical restrictions on Anderson. (See Anderson Dep. Ex. 17, Doc. #59-4, at 31-35.) Georgia-Pacific asserts that it placed Anderson on short-term leave in light of these new permanent restrictions, because it concluded that the exacerbating conditions Dr. Collins noted on the form were present throughout the Thorsby facility and that it could not reasonably exclude Anderson from all of these conditions.
Anderson has presented no evidence that would allow a reasonable juror to conclude that the company's reliance on Dr. Collins's permanent restrictions in placing Anderson on sick leave was merely pretextual. In his response brief,
The Court recognizes that a plaintiff may rebut the defendant's proffered nondiscriminatory reasons with "previously produced evidence establishing the prima facie case sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision," Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997). However, the Court finds Anderson's statement that Georgia-Pacific's proffered reasons were not legitimate, which he fails to support with any specific evidence or argument, is an insufficient rebuttal to Georgia-Pacific's legitimate, non-discriminatory reason for removing him from the Thorsby facility. Thus, Anderson's retaliation claim as to Georgia Pacific's placing him on short-term paid leave fails.
Anderson alleges that Georgia-Pacific's refusal to accommodate his requests to wear a respirator and to be reassigned to an air-conditioned position were done in retaliation for his EEOC complaint. However, Georgia-Pacific has provided evidence that it did not consider this to be a reasonable accommodation because of the 2002 test results showing that Anderson had failed a pulmonary functions test, Georgia-Pacific's understanding that Anderson had been removed from the safety rescue team because he could not wear a respirator, and Anderson's own representation that his lung condition had deteriorated since the test was conducted in 2002. (Brown Aff. ¶¶ 9-10, Doc. #58-1.) As for Georgia-Pacific's alleged refusal to reassign Anderson to a vacant position in an air-conditioned booth, Georgia-Pacific has presented evidence that it considered whether there were available positions that Anderson could perform, but it determined none were available.
The Court finds that these are legitimate, non-discriminatory reasons for failing to provide Anderson with his requested accommodations, which Anderson must rebut in order for his retaliation claims to survive summary judgment. For the reasons stated previously, Anderson has provided no such rebuttal.
Georgia-Pacific administratively terminated Anderson's employment in December 2008. Anderson alleges that this final termination was in retaliation for his EEOC discrimination complaint against the company. However, Georgia-Pacific has explained and offered evidence that the decision to terminate Anderson was based on its determination that there was no accommodation it could make that
For the reasons stated above, it is hereby ORDERED that Defendant's Motion for Summary Judgment (Doc. #57) is GRANTED. A final judgment in this case is forthcoming.
