VIRGINIA EMERSON HOPKINS, District Judge.
Plaintiff James L. Ward ("Mr. Ward") initiated this job discrimination lawsuit against Defendants United Parcel Service ("UPS"), Russell Hamrac ("Mr. Hamrac"), and Ron Headley ("Mr. Headley"), arising under the Americans with Disabilities Act (the "ADA"), as amended in 2008 by the ADA Amendments Act (the "ADAA"),
Pending before the court is Defendants' Motion for Summary Judgment (Doc. 30) (the "Motion") filed on August 1, 2013. The parties have supported and opposed the Motion (Docs. 31, 32, 35, 37), and it is now ready for disposition. For the reasons explained below, the Motion is due to
Mr. Ward's amended complaint lists five separate causes of action. (Doc. 17 at 6-10 ¶¶ 24-46). The first count asserts violations of USERRA against UPS, Mr. Hamrac, and Mr. Headley. (Id. ¶¶ 24-26). The second cause of action alleges reasonable accommodation and adverse action claims against UPS under the ADAA. Mr. Ward's third count is brought against UPS, Mr. Hamrac, and Mr. Headley for the intentional infliction of emotional distress. The fourth claim is for negligent and/or malicious retention, supervision, and training and is asserted against UPS. Mr. Ward's final count asserts invasion of privacy against all three defendants.
The court's summary of the claims contained in Mr. Ward's amended complaint is consistent with the parties' briefing on summary judgment. Further, to the extent that some other arguable claim exists in his amended pleading, by virtue of his opposition brief's silence, Mr. Ward has abandoned it on summary judgment. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001) (finding claim abandoned when argument not presented in initial response to motion for summary judgment); Bute v. Schuller Int'l, Inc., 998 F.Supp. 1473, 1477 (N.D.Ga.1998) (finding unaddressed claim abandoned); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) ("We decline to exercise our discretion to entertain this argument which was not fairly presented to the district court."); Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir.2000) (failure to brief and argue issue at the district court is sufficient to find the issue has been abandoned); Hudson v. Norfolk S. Ry. Co., 209 F.Supp.2d 1301, 1324 (N.D.Ga.2001) ("When a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim abandoned."); cf. Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994) (concluding that a district court "could properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment"); McMaster v. United States, 177 F.3d 936, 940-41 (11th Cir.1999) (claim may be considered abandoned when district court is presented with no argument concerning a claim included in the plaintiff's complaint).
Conversely, to the extent that Mr. Ward's brief contains arguments about a claim that has not been pled in his amended pleading, it is similarly subject to summary judgment. The Eleventh Circuit has made it unmistakably clear that "[a] plaintiff may not amend her complaint through argument in a brief opposing summary judgment." Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir.2004) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996)). Gilmour dealt with a plaintiff who was attempting to assert a new claim at the summary judgment stage. Gilmour, 382 F.3d at 1314-15.
Additionally, a more recent decision by the Eleventh Circuit cites to Gilmour and confirms that a district court's consideration of any critical amendment asserted merely as part of the briefing process is disfavored.
Flintlock Const. Services, LLC v. Well-Come Holdings, LLC, 710 F.3d 1221, 1227-28 (11th Cir.2013) (emphasis added).
Mr. Ward began his employment with UPS, a company engaged in the package
Mr. Ward is a member of the Teamsters Union. AF No. 3.1. The terms and conditions of Mr. Ward's employment at UPS are governed by the CBA. AF No. 3.2. Mr. Ward first held the part-time position of Preloader and worked in that capacity until he was promoted to the full-time position of Package Car Driver in 1995. AF No. 4.
Mr. Ward joined the Army Reserve in 1981 and, in July 2003, while he held the position of Package Car Driver, he was called to active duty. AF No. 5. Mr. Ward was deployed to Iraq and remained on active status until the summer of 2005. AF No. 6.
In late July, 2005, Mr. Ward returned to UPS and requested to be reemployed. AF No. 7. Mr. Ward informed UPS that, while he was on active military service, he suffered an injury to his leg and, as a consequence, was subject to medical restrictions that impacted upon his ability to work. AF No. 8. Mr. Ward further advised UPS that he could not return to his former position as a Package Car Driver. AF No. 9.
The essential job functions of Mr. Ward's former position as a Package Car Driver required the ability to lift up to 70 pounds and to move packages weighing up to 150 pounds. AF No. 10. UPS sought to clarify the scope of Mr. Ward's medical restrictions and, in connection therewith, Mr. Ward arranged for his physician at the Veterans Administration, Mike Moates, M.D. ("Dr. Moates"), to complete
Dr. Moates completed the forms provided by UPS and indicated that Mr. Ward could not perform all of the physical and mental functions of his position held immediately prior to his military deployment. AF No. 12. More precisely, Dr. Moates stated that Mr. Ward could not lift packages up to 70 pounds or move packages up to 150 pounds. AF No. 13.
The essential job functions of the majority of the hourly union jobs at the Anniston Center require that an employee be able to lift packages weighing up to 70 pounds or assist in the movement of packages weighing up to 150 pounds. AF No. 14.
In 2005, with the exception of Package Car Driver positions, the only full-time position for a union employee at the Anniston Center was a position occupied by Carol Eddy, a union employee with more seniority than Mr. Ward. AF No. 15. That position consisted of a combination of Operations Clerk and Porter duties. AF No. 16. Because Mr. Ward could not perform the essential job functions of any full-time union job at the Anniston Center, UPS was not able to return him to work in a position with hours comparable to his prior employment, when he first requested reemployment in 2005. AF No. 18. UPS offered Mr. Ward the opportunity to work a part-time job performing "small sort" functions which did not require lifting beyond his medical limits, but Mr. Ward rejected the offer because he desired to be reinstated to full-time status at UPS. AF No. 19.
Mr. Ward filed a complaint with the U.S. Department of Labor in 2005, alleging that UPS violated his rights under USERRA by failing to return him to work in a full-time position upon his return from military deployment. AF No. 20. UPS denied that it had failed to comply with its obligations under USERRA and responded that it was attempting to return Mr. Ward to work, but his medical restrictions precluded him from performing the essential job functions of the full-time union jobs at his Center. AF No. 21.
Ultimately, Mr. Ward's medical condition improved and his physician determined that he could perform the duties of the Operations Clerk/Porter position which had been occupied by Mr. Ward's senior co-worker, Carol Eddy ("Ms. Eddy."). AF No. 22. The union jobs at the Anniston Center are awarded based on seniority under the CBA and Ms. Eddy was more senior than Mr. Ward. AF No. 23. Ms. Eddy was a member of the National Guard and, like Mr. Ward before, she was called up to duty in late spring 2006. AF No. 24.
Mr. Ward requested to be placed in Ms. Eddy's bid job while she was on deployment. AF No. 25. UPS placed Mr. Ward in Ms. Eddy's position in June 2006 after his doctor cleared him to lift up to 70 pounds. AF No. 26. Thereafter, UPS and Mr. Ward fully resolved any remaining USERRA claims he may have had by entering into a Settlement and Release Agreement which Mr. Ward signed on Sept. 12, 2007. AF No. 27.1.
Mr. Ward occupied Ms. Eddy's position, performing the duties of an Operations Clerk and Porter without incident from June 2006 until February 2007. AF No. 28.1. On February 19, 2007, however, he reported to UPS that he had suffered an on the job injury to his back. AF No. 28.2. As a result of his work-related back injury, which involved a bulging disc, Mr. Ward was placed on medical restrictions again and was out of work on workers compensation for an extended period. AF No. 29.
According to the results of a Functional Capacities Examination ("FCE") that was
On March 11, 2008, following an examination by Anniston Orthopaedic Associates, Mr. Ward was released to go back to work lifting up to 70 pounds. AF No. 32. Because Ms. Eddy remained on active service, Mr. Ward returned to performing her bid job, a combination of Operations Clerk and Porter duties. AF No. 33.
Thereafter, in October, 2009, Ms. Eddy returned from military leave and requested to be reinstated to her bid position. AF No. 34. UPS agreed to reinstate Ms. Eddy to the position because it is a union job and she had more seniority than Mr. Ward, plus she had a right to be reemployed in the position under USERRA. AF No. 35.
Upon Ms. Eddy's return to work, UPS asked Mr. Ward if he would like to return to his former position as a Package Car Driver, but he told UPS that he could not because he could not qualify to drive due to pain medications he took and because of his injury. AF No. 36. In the month before Ms. Eddy's return to UPS, Mr. Ward went to the office of Anniston Orthopaedic Associates and reported that he "was having considerable ongoing problems with pain and stiffness in the back, and pain that radiate[d] in the buttock and thighs ..." AF No. 37. Mr. Ward asked his treating physician "if anything further could be done as this [was] causing a significant effect on his activities and quality of life." AF No. 38.
On or about November 9, 2009, Mr. Ward submitted a "Request for Medical Information" form to UPS that had been completed by Thomas Wilson, M.D. ("Dr. Wilson") of Neurological Associates. AF No. 41. Dr. Wilson indicated in response to the questions on the form that Mr. Ward was currently subject to the same limitations as had been given him at the time of the FCE in 2007. AF No. 43. The 2007 FCE was the evaluation that limited Mr. Ward to lifting 40 pounds waist to floor and limited his maximum carrying capacity to 50 pounds. AF No. 44. UPS's Occupational Health Supervisor, Roger Burnett ("Mr. Burnett"), traveled to Anniston to meet with Mr. Ward to review his medical restrictions as part of an effort to identify a position that Mr. Ward could perform. AF No. 45.
At the meeting, Mr. Ward completed an "Accommodation Checklist" in which he indicated that he would provide UPS information on his current limitations and condition by January 15, 2010. AF No. 46. On January 15, 2010, Mr. Ward provided Mr. Burnett a description of his limitations which stated that he was limited to a maximum floor to waist lift of 40 pounds and a maximum carrying capacity of 50 pounds. AF No. 47.
UPS sent Mr. Ward a letter in early February 2010, requesting that he update his medical information by seeing Anniston Orthopaedic Associates for an examination at UPS's expense. (Doc. 32-2 at 30);
As an alternative, UPS offered Mr. Ward a position in either Anniston or Roebuck performing what UPS refers to as "SPA" duties. AF No. 54. Mr. Ward rejected the offer to return to work performing SPA duties because he was only willing to return to work in a full-time role. AF No. 55. An employee performing SPA duties scans packages as they come down a belt and places labels on the packages that contain information about the destination and the package car on which they must be loaded. AF No. 56.
Mr. Ward asked UPS to combine the SPA position on the a.m. shift with another open position on the p.m. shift, but UPS responded that it had no open positions that could be combined with the SPA duties that would be consistent with Mr. Ward's medical restrictions and informed Mr. Ward of same. AF No. 57. Mr. Ward admits that he is not aware of any part-time position that was open at the time that could have been combined with the SPA duties and that did not require lifting 70 pounds. AF No. 58.
Eventually, Mr. Ward's condition improved and, on November 23, 2010, he went to see Dr. Vandervoort and requested that Dr. Vandervoort increase his lifting restriction to 70 pounds. AF No. 59. Dr. Vandervoort examined Mr. Ward and agreed to increase his lifting restriction to 70 pounds. AF No. 60. As soon as UPS received notice of the change in Mr. Ward's lifting restriction, Mr. Burnett sent Mr. Ward a letter scheduling him for another FCE in accordance with normal practice. AF No. 61.
Anniston Orthopaedic Associates conducted an FCE and released Mr. Ward to return to work at UPS on or about December 22, 2010. AF No. 62. At that point, because there still was no full-time position available, UPS offered Mr. Ward the opportunity to return to the Anniston Center, working two part-time jobs to comprise full-time employment. AF No. 63. Mr. Ward accepted the offer and returned to work at the beginning of 2011. AF No. 64. His duties consisted of working SPA in the morning and scanning and loading packages in the afternoon. AF No. 65.
Mr. Ward worked in these capacities as a full-time employee until approximately August, 2011. AF No. 66.1. In or about August, 2011, Ms. Eddy ceased working at UPS and Mr. Ward again took over her position, performing a combination of Operations Clerk and Porter duties. AF No. 66.2. Mr. Ward has been continuously employed by UPS in the combination Operations Clerk/Porter position since August, 2011. AF No. 67.
While employed by UPS, Mr. Ward has filed two Charges of Discrimination with the EEOC. AF No. 68. By way of his first Charge filed on March 16, 2010, Mr. Ward complained that UPS had discriminated against him based on sex and disability. AF No. 69.1. His complaint related to the period of time during which he did not
The EEOC issued Mr. Ward a Notice of Right to Sue on February 15, 2011, informing him that it was closing its file and was unable to conclude that the information obtained established a violation of the statutes at issue. AF No. 70. Mr. Ward did not file suit within 90 days following his receipt of the Notice of Right to Sue on his first Charge. AF No. 71.
Mr. Ward filed a second Charge on June 7, 2011. AF No. 72.1. By way of his second Charge, Mr. Ward complained about a series of events that he testified are the basis of his claims against the individual defendants in this lawsuit, Mr. Hamrac and Mr. Headley, and his allegations of harassment and retaliation. AF No. 72.2.
The events which were the subject of Mr. Ward's second Charge commenced on March 23, 2011. AF No. 73. On that day, Mr. Ward was experiencing difficulty with his leg, including pain, and decided that he would go to Physicians Care, a medical practice, to be examined after work. AF No. 74.
Mr. Ward's supervisor, Chris Borden, overheard Mr. Ward discussing with a coworker the fact that he was in pain and Mr. Borden asked him if he was okay. AF No. 75. Mr. Ward told Mr. Borden he was having pain and that he was going to see his doctor. AF No. 76. Mr. Borden asked Mr. Ward to call him after he saw his doctor and told Mr. Ward that it might be necessary for him to see a doctor affiliated with UPS. AF No. 77.
Mr. Ward was seen at Physicians Care after work on March 23, 2011, at which time the doctor gave him two shots for pain and noted in his medical chart that Mr. Ward should elevate his leg and return to work on March 28, 2011. AF No. 78. That evening, Mr. Ward called Mr. Borden and, according to Mr. Ward, Mr. Borden told him he would need to see a company doctor before he returned to work. AF No. 79.
Thereafter, Mr. Ward provided UPS with a note from Physician Care which indicated that Mr. Ward was seen on March 23, 2011, that he was under a doctor's care from "3/23 to 3/27/2011," and that he would be "back to work on March 28, 2011." AF No. 80. On Monday, March 28, 2011, Mr. Ward was seen by the company doctor, who concurred with Mr. Ward's treating physician that he could return to work; Mr. Ward went back to work that same day. AF No. 81.
Subsequently, Mr. Ward filed a grievance with his union, complaining that he was required to see the company doctor before he could return to work. AF No. 82. A meeting was conducted on May 11, 2011, about Mr. Ward's grievance. AF No. 83. At the meeting, Mr. Ward provided UPS with a revised version of the previously-submitted doctor's note from Physicians Care. AF No. 84.
The revised version of the doctor's note that was presented by Mr. Ward on May 11, 2011, included the words "without restrictions," which language had not appeared on the original note. AF No. 85. The discrepancy between the two doctor's notes was recognized by UPS and, because there was concern that a violation of UPS's Honesty in Employment policies may have occurred, security for UPS looked into the matter. AF No. 86.
Mr. Headley, Security Supervisor, oversaw UPS's efforts to follow-up with the doctor's office to confirm that the doctor's office had amended Mr. Ward's original work excuse. AF No. 87. The doctor's office reported that, while all notes relating
Ms. Ingram confirmed that the records of the doctor's office reflect that only one work excuse was provided to Mr. Ward and that it did not contain the words "without restrictions." AF No. 90. Based on the information obtained from the doctor's office, Mr. Headley reasonably believed that Mr. Ward had falsified the second work excuse. AF No. 91.
On May 17, 2011, Mr. Ward and his union representative were called to a meeting with Mr. Headley and Mr. Hamrac, the Anniston Center Manager. AF No. 92. Mr. Hamrac and Mr. Headley questioned Mr. Ward regarding the inconsistent work excuses he had submitted. AF No. 93.1. Absent a satisfactory explanation, Mr. Hamrac intended to advise Mr. Ward that he would be immediately discharged for dishonesty under the terms of the CBA with his union. AF No. 93.2.
At the meeting, Mr. Ward insisted that the second work excuse was provided by his doctor's office and, accordingly, Mr. Headley told Mr. Ward that UPS would contact the doctor's office again. AF No. 94. Mr. Ward contends that he was told that his employment was terminated during the meeting. AF No. 95.
UPS did not issue Mr. Ward a notice of discharge. AF No. 96. Instead, the next morning, May 28, 2011, Mr. Hamrac and Mr. Headley went to the doctor's office to inquire regarding the discrepancy in the notes and Mr. Ward's assertion that he was given the second note by an employee of the office. AF No. 97. Mr. Hamrac and Mr. Headley recall that Mr. Ward also was there that same morning. AF No. 98.
Mr. Ward did not speak to Mr. Hamrac or Mr. Headley and they did not speak to him when they saw each other on May 18, 2011. AF No. 99. Mr. Ward observed Mr. Hamrac and Mr. Headley approach the front desk and heard Mr. Headley say that he was there to see the representative of the clinic who had given him the earlier information regarding Mr. Ward. AF No. 100. Mr. Ward told the personnel in the office that, if they divulged any information to Mr. Hamrac and Mr. Headley, they would be violating the HIPAA. AF No. 101.
Mr. Ward then went to the back of the clinic where records are kept and the employee of the office who had given him the revised version of the doctor's note stated that she was the one who put the words "without restrictions" on the medical note at his request. AF No. 102. As soon as the discrepancy in the two notes was cleared up, UPS attempted to contact Mr. Ward to call him back to work. AF No. 103.
Mr. Ward testified that Mr. Hamrac called him immediately after he left the doctors' office, but he did not speak to him until he received a letter from UPS telling him he needed to report to work. AF No. 104.1. Mr. Ward's union steward had also told Mr. Ward that UPS was trying to reach him to call him back to work. AF No. 104.2. At that point, Mr. Ward called Mr. Hamrac, who confirmed that he had been trying to reach Mr. Ward, and Mr. Hamrac asked him to return to work. AF No. 105.
Mr. Ward then reported to work and remains a full-time employee of UPS at the present time. AF No. 106. Mr. Ward
The EEOC issued Mr. Ward a Notice of Right to Sue on his second Charge on February 2, 2012, informing him that it was unable to conclude that the information obtained established a violation of the statutes at issue and was closing its file. AF No. 108. Mr. Ward commenced this action within 90 days following his receipt of the February 2, 2012 Notice from the EEOC. AF No. 109.
Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to `come forward with specific facts showing that there is a genuine issue for trial.'" International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir.2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)).
Finally "[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense." International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir.2003)).
As the Eleventh Circuit has described the contours of USERRA:
Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1234-35 (11th Cir. 2005).
Coffman, 411 F.3d at 1238-39.
In Holly v. Clairson Industries, L.L.C., 492 F.3d 1247 (11th Cir.2007), the Eleventh Circuit distinguished the framework for evaluating a failure to accommodate claim from disparate treatment under the ADAA:
Holly, 492 F.3d at 1262 (emphasis by underlining added).
Additionally, "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 with respect to demonstrating that such an accommodation is reasonable." Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir.1997) (emphasis added) (citing Willis v. Conopco, 108 F.3d 282, 283 (11th Cir.1997)).
Regarding establishment of disability discrimination premised upon disparate treatment under the ADA, the Eleventh Circuit has explained:
Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1226-27 (11th Cir.1999) (footnote omitted) (emphasis added).
The ADAA broadens coverage under the ADA and provides in part that:
42 U.S.C. § 12102(4)(A)-(E)(i).
The last stated purpose of the ADAA calls for a broadening of the term "substantially limits":
Pub. L. No. 110-325, 122 Stat. 3553, 3554 § 2(b)(6) (2008).
By virtue of the parties' briefing on summary judgment, Mr. Ward has admitted that he and UPS have "fully resolved any remaining USERRA claims he may have had [on or before September 12, 2007,] by entering into a Settlement and Release Agreement which [Mr. Ward] signed on September 12, 2007." (Compare Doc. 31 at 7-8 ¶ 27 (describing details of 2007 USERRA settlement),
Further, Mr. Ward also has abandoned all USERRA claims asserted against Mr. Headley and Mr. Hamrac personally, leaving only his post-September 2007 USERRA claims against UPS. (See Doc. 35 at 28 n. 6 ("Ward agrees that under the current state of the law[,] he cannot maintain a USERRA claim against the individual defendants.")).
Mr. Ward maintains that he has an actionable discriminatory failure to accommodate claim under USERRA for being "held out of work from October 2009 to January 2011" and "los[ing] 14 months of pay...." (Doc. 35 at 28). More specifically, Mr. Ward contends that, subsequent to his initial reemployment with UPS upon completion of his military duty in 2006, UPS should have combined multiple part-time position(s) to provide him with compensation akin to a full-time employee as a reasonable accommodation to him, given his back-related lifting restrictions, in contravention of USERRA's anti-discrimination provisions. (Doc. 35 at 27); (see also id. at 24 ("
In pursuing his USERRA discrimination claim under § 4311,
First, Mr. Ward makes no attempt to establish direct evidence of UPS's improper motive under USERRA. Second, Mr. Ward has failed to adduce admissible proof from which a reasonable jury could infer that a discriminatory animus motivated UPS in its treatment of him. As set forth above, acceptable means by which a plaintiff meets this USERRA burden include evidence such as:
Sheehan, 240 F.3d at 1014 (citing W.F. Bolin Co. v. Nat'l Labor Relations Bd., 70 F.3d 863, 871 (6th Cir.1995)).
Here, Mr. Ward appears to rely upon the second foregoing factor: "A reasonable jury could find that UPS unreasonably failed to accommodate Ward when it held him out of work from October 2009 to January 2011, as there was an opportunity for him to combine two part-time jobs to make a full-time position." (Doc. 35 at 28). However, "[s]tatements by counsel in briefs are not evidence[,]" Skyline Corp. v. N.L.R.B., 613 F.2d 1328, 1337 (5th Cir.
Moreover, Mr. Ward has factually conceded on summary judgment that there was no opportunity for him to combine two part-time jobs because, during the relevant time frame, UPS had no open positions that could be joined with the SPA duties to form full-time employment that would be consistent with Mr. Ward's medical restrictions. Further, Mr. Ward offers no other grounds to satisfy his initial burden. Accordingly, Mr. Ward's USERRA discrimination claim fails on a prima facie basis.
Alternatively, to the extent that Mr. Ward has met his initial USERRA burden and demonstrated that his military status was at least a motivating factor behind UPS's treatment of him, UPS has affirmatively shown the existence of legitimate reasons which, "standing alone"
Therefore, the Motion is due to be granted on the discrimination portion of Mr. Ward's USERRA count.
In support of his USERRA retaliation claim, Mr. Ward merely observes in a footnote that "[a] reasonable jury could also find that UPS treated Ward in this manner in reprisal for him filing a complaint against them with the Department of Labor in 2006." (Doc. 35 at 28 n. 5 (citing 38 U.S.C.A. § 4311(b))). Other than generally referencing the subsection of USERRA that prohibits retaliation, Mr. Ward points to no supportive legal authorities.
The court is not obligated to consider such an undeveloped argument. Cf. Flanigan's Enters., Inc. v. Fulton County, Ga., 242 F.3d 976, 987 n. 16 (11th Cir.2001) (holding that a party waives an argument if the party "fail[s] to elaborate or provide any citation of authority in support" of the argument); Ordower v. Feldman, 826 F.2d 1569, 1576 (7th Cir.1987) (stating that an argument made without citation to authority is insufficient to raise an issue before the court).
Furthermore, Mr. Ward's purported retaliation claim is flawed for the same reasons that invalidate his USERRA discrimination claim — Mr. Ward has failed to adduce admissible proof from which a reasonable jury could infer that a retaliatory animus motivated UPS in its treatment of him,
Therefore, the Motion is due to be granted on the retaliation portion of Mr. Ward's USERRA count.
UPS contends that Mr. Ward cannot pursue a failure to accommodate claim because any such claim is either time-barred as measured by the conclusion of his first Charge on February 15, 2011, or administratively precluded due to the absence of any failure to accommodate claim contained in his second Charge. (Doc. 31 at 28); see 42 U.S.C. § 2000e-5(f)(1) (setting forth ninety day requirement to file a civil action upon receipt of notice of right to sue); see also Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) ("[I]t is only logical to limit the permissible scope of the civil action to the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination."); Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.1989) ("Allegations of new acts of discrimination, offered as the essential basis for the requested judicial review are not appropriate." (citing Ray v. Freeman, 626 F.2d 439, 443 (5th Cir.1980))). The court agrees with UPS.
As UPS more specifically maintains:
(Doc. 31 at 28-29 (citations to record omitted) (emphasis added)).
Mr. Ward attempts to salvage his reasonable accommodation claim by suggesting that the court should construe it as arising under a continuing violation framework for the time period spanning from October 2009 to May 2011. (Doc. 35 at
First, neither one of the Charges filed by Mr. Ward marks the box that UPS has engaged in a "CONTINUING ACTION" against him. (Doc. 32-3 at 7; Doc. 32-3 at 29).
Third, the sole legal authority upon which Mr. Ward relies in support of his contention, Beavers v. American Cast Iron Pipe Co., 975 F.2d 792 (11th Cir.1992), is a disparate impact case, which challenges the legality of a facially neutral policy that has alleged cumulative discriminatory effects on a protected class, and Mr. Ward has made no effort to explain why Beavers means that a continuing violation theory should apply equally to alleged discrete acts of disability discrimination. (Doc. 35 at 29). Fourth, the cases and analysis referenced by UPS in its reply confirm that a continuing violation theory is simply inapplicable in this instance, and that Mr. Ward is without a viable reasonable accommodation claim on account of untimeliness and/or administrative exhaustion. (Doc. 37 at 11-13).
Accordingly, the Motion is due to be granted on Mr. Ward's reasonable accommodation claims contained in his ADAA count.
The formulations of Mr. Ward's ADAA disparate treatment claims are not entirely clear to the court. (Doc. 35 at 30-37). In particular, in what appears to be the ADAA disparate treatment section of his brief, Mr. Ward reasserts his complaint about UPS's alleged denial of a reasonable accommodation to him on January 15, 2010, and then immediately jumps to a criticism of UPS's discriminatory treatment of him from March 23, 2011, to May 17, 2011. (Doc. 35 at 34).
To the extent that Mr. Ward seeks to assert disparate treatment relating to UPS's conduct on January 15, 2010, then such a claim is time-barred consistent with the court's analysis of his reasonable accommodation claims set forth above. Additionally, summary judgment is appropriate because Mr. Ward's one-paragraph approach makes no effort to substantiate how he has met any of the prima facie elements of an ADAA disparate treatment claim based upon this January 2010 occurrence and critically omits any citation to underlying evidence from which a reasonable jury could conclude that he was subjected to unlawful discrimination because of his disability and/or perceived disability.
As for Mr. Ward's complaints about any disparate treatment from March 23, 2011,
As the United States Supreme Court has summarized the meaning of a tangible employment action:
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761-62, 118 S.Ct. 2257, 2268-69, 141 L.Ed.2d 633 (1998) (emphasis added).
Here, Mr. Ward admits that his disputed "termination was rescinded" and that "he was paid for the time he missed." (Doc. 35 at 37). Then Mr. Ward unhelpfully cites solely to Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), and suggests that, despite the lack of any appreciable economic detriment endured by him, his ADAA disparate treatment claim is sufficient under the holding of that precedent. (Doc. 35 at 37).
However, Burlington's "more relaxed" measure of what constitutes actionable conduct is applicable to retaliation claims only, not to alleged discriminatory treatment. See, e.g., Crawford v. Carroll, 529 F.3d 961, 973 (11th Cir.2008) ("If any doubt remained regarding the incorrectness of the district court's [retaliation] ruling — though we find none does — application of the decidedly more relaxed Burlington standard to the facts of this case must emphatically dispel it."). Instead, "when defining the level of substantiality required for a Title VII discrimination claim [and, likewise, ADAA disparate treatment], [the Eleventh Circuit still] require[s] an employee to demonstrate she suffered `a serious and material change in the terms, conditions, or privileges of
The court alternatively determines that Mr. Ward lacks evidence from which a reasonable jury could conclude that he was subjected to unlawful discrimination because of his disability and/or perceived disability and that he has abandoned any effort to demonstrate pretext.
Accordingly, the Motion is due to be granted on the disparate treatment part of Mr. Ward's ADAA count.
Mr. Ward premises this court's jurisdiction over his state law claims under 28 U.S.C. § 1367. Section 1367 provides in relevant part:
28 U.S.C. § 1367(a, c) (emphasis added).
Having determined that summary judgment is appropriate on all of Mr. Ward's federal claims, the court declines to exercise supplemental jurisdiction over his state law claims of intentional infliction of emotional distress, negligent and/or malicious retention, supervision, and training, and invasion of privacy, consistent with its discretion to do so under § 1367(c)(1) and/or (3).
Accordingly, the state law portion of the Motion is due to be termed as moot, and all of Mr. Ward's state law claims are due to be dismissed without prejudice.
Therefore, the Motion is due to be granted on all of Mr. Ward's federal counts and termed as moot with respect to his remaining state law counts. The court will enter a separate dismissal order consistent with this memorandum opinion.
Pending before the court is Defendants' Motion for Summary Judgment (Doc. 30) (the "Motion") filed on August 1, 2013. Consistent with the accompanying memorandum opinion entered on this date, the Motion is
Jordan v. Air Prods. & Chems., Inc., 225 F.Supp.2d 1206, 1208 (C.D.Cal.2002). Put more simply, § 4312 "only entitles a service person to immediate reemployment and does not prevent the employer from terminating him the next day or even later the same day." Id. The apparent harshness of this result is addressed by the fact that §§ 4311 and 4316 operate to protect the employee as soon as she is reemployed. Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 304 (4th Cir. 2006) (emphasis added).
Clark County School Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 1511, 149 L.Ed.2d 509 (2001) (emphasis added).
