VIRGINIA EMERSON HOPKINS, United States District Judge.
This is a civil action filed by the Plaintiff, Jerald Seals, against the Defendant, Lee Brass Foundry, LLC. ("Lee Brass"), his former employer. The Complaint alleges that the Defendant "harassed [the]
The case comes before the Court on the Defendant's motion for summary judgment. (Doc. 26). For the reasons stated herein, the motion will be
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324, 106 S.Ct. 2548. By its own affidavits — or by the depositions, answers to interrogatories, and admissions on file — it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir.2000). Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is,
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
Lee Brass is a manufacturing facility that produces metal castings or parts for its customers based on specifications provided by the customer. There are multiple steps in the manufacturing process: the Foundry; the Cleaning Room; Test and Pack Department; and Shipping Department. A part is first cast in the Foundry. Thereafter, excess metal is cut off of the part by the saw operators. Afterwards, it is sent to the Cleaning Room in order to be smoothed down, and excess metal removed, before it is sent to the machine shop. The number of parts passing through each phase of Lee Brass's manufacturing process is dictated by the number of customer orders received.
Lee Brass's Human Resources Department ("HR") is run by Jerome Truss. As stated in its employee handbook, Lee Brass has a policy of prohibiting workplace discrimination and harassment based on
The handbook provides that "[e]mployment is at the will of Lee Brass, and either Lee Brass or the associate may at any time terminate the employment relationship with or without cause." (Doc. 28-2 at 10; see also doc. 28-2 at 13). It states that "violation of any of the following rules will lead to disciplinary action that may include dismissal[:] ... Fighting or acts of physical violence on company property[;] Immoral, illegal or disorderly conduct[;] ... [and] Insubordination[.]" (Doc. 28-2 at 59). The handbook also sets out the following "Disciplinary Procedures:"
(Doc. 28-2 at 59-60).
In January of 2012, Seals began his employment with Lee Brass as a "laborer" on the cleanup crew, in the Foundry, which is part of the Maintenance Department. The position of laborer is physically demanding, and required Seals, among other things, to shovel clay by carrying shovel loads of approximately 50 pounds on a regular basis.
The Plaintiff testified in his deposition that, after about 90 days in the Cleanup Crew, he "got hired on permanent." (Doc. 28-3 at 10(35)). Seals applied for and was given an open position as a "saw operator" in the Foundry, where his duties were to cut excess metal pieces off of the parts after they are cast from molten metals.
At the time Seals worked at Lee Brass, there were two different types of saws, referred to as the "big saws" and the "small saws." Parts are delivered to the sawing area by one of several forklift operators, who transport the parts on a pallet from the area of the Foundry where the parts are cast. The big saws are used to cut larger parts, and the blades can be moved — rather than the operator simply moving the part, as on the small saws — to cut the part at angles. The blade on a big saw is sixteen inches in diameter. When larger or heavier parts need to be sawed, the saw operators use a crane (also referred to as a winch) next to their saws to lift the part onto the sawing table. However, Seals testified that the winch did not always work, and when they did not, the big saw operator would "[b]ring [the part] on a forklift or ... wait until they get around to fix [the winch]." (Doc. 28-3 at 11(40)).
Not everyone who works on a small saw also works on a big saw. (Doc. 28-3 at 12(43)). Seals testified that that was because people "have to be trained to work on the big saw." (Doc. 28-3 at 12(43)). Seals agreed in his deposition that it was hard to work on the big saws and agreed with the characterization of that work as "skilled labor." (Doc. 28-3 at 12(44)). McCormick testified in her deposition that employees did not have to be trained on a small saw but they did have to be trained on a big saw. (Doc. 28-4 at 7(24)-8(25)). She also agreed that safety training on a big saw was conducted prior to employees' using it. (Doc. 28-4 at 8(26)). Derrick Murphy, another employee of the Defendant who has worked there for 29 years, agrees that a big saw required training and that "some guys don't feel comfortable sawing on them big saws." (Doc. 33-3 at 26(98)). He was never trained on a big saw and did not know how to operate one. (Doc. 33-3 at 27(103)). Stan Hand, the plant manager, testified that employees who worked a big saw made the same amount of money as those who worked a small saw. (Doc. 27-8 at 8(27)). The Plaintiff testified that people who work a big saw get paid more. (Doc. 28-3 at 17(63)).
After sawing, the saw operator puts each part into a bin next to his or her saw. The parts in the bin are then inspected by a supervisor or a more senior saw operator to ensure that they are cut properly, and then they are sent to the cleaning room. (Doc. 28-3 at 16(58-59)). The saw operator throws the scrap metal that he or she saws off the part into another bucket. The scrap bucket contains only a single alloy at a time. That is because the scrap is melted down again to be reused, and different alloys of scrap cannot be intermingled.
The job description of saw operator explains that the operator is required to lift between fifty and seventy-five pounds. However, when Seals became a saw operator, he was assigned to a small saw. His supervisor was Kenny Deramus. Seals explained that he sought out that position because he got a pay increase and because "it was lighter weight," and "less physically demanding." (Doc. 28-3 at 11(37)). He explained further that "the parts was so small on the small saw. It was so small, so, I mean, you could stand there and do that all day." (Doc. 28-3 at 11(38)). Throughout his tenure, he was assigned primarily to do work on a small saw cutting green brass and red brass. However, as will be discussed, when Judy McCormick became his supervisor, she began assigning him to work a big saw.
In April of 2013, Seals had to leave work in the middle of his shift because he began vomiting blood and was experiencing dizziness, pounding in his ears, and olfactory disturbances. Leslie Underwood, a forklift operator at Lee Brass, recalled the incident in his deposition and stated:
(Doc. 28-10 at 27(10)).
Seals began experiencing these symptoms around the start of his shift at 3:00 a.m. Around 7:00 a.m., when Deramus got into work, Seals reported to him that he was feeling ill and asked to be dismissed for the day. Deramus agreed without hesitation.
Seals then drove himself to the emergency room at Stringfellow Memorial Hospital. The nurse in the E.R. told Seals he was "dying." The doctors at Stringfellow informed Seals that he was "short on blood" and gave him a blood transfusion. Thereafter, Seals was hospitalized at Stringfellow for approximately eleven days and tests were performed. The testing did not reveal what had caused Seals to become ill, and the Plaintiff has not had a recurrence of these symptoms.
Seals attempted to return to work the day after he was released from the hospital. He gave his "light duty" doctor's note to either Deramus or Ray Wood, both of whom had supervisory authority over him. One or both of them told him that he could not return to work until he was cleared of all restrictions.
In his declaration, Truss states that Lee Brass allowed employees to work light or restricted duty only where the medical condition precipitating the need to work light duty was caused by an injury that occurred in the course of the employee's job duties. (Doc. 28-2 at 3, ¶ 7). He states that Deramus has never allowed light duty otherwise. (Doc. 28-2 at 3, ¶ 8). In his declaration, Wood denies ever giving light duty to anyone not hurt on the job; (Doc. 28-9 at 2-3, ¶ 3). In her deposition, McCormick stated that employees only get light duty for "job-related injuries," and she did not know of an incident where anyone got light duty for a non-job-related incident. (Doc. 28-4 at 47(182)).
In his deposition the Plaintiff pointed to Richard Bearden, an employee at Lee Brass, and said that after Bearden hurt his back moving a hot water heater at his home, "[h]e had to be on light duty. He didn't do anything." (Doc. 28-3 at 44(172)-45(173)). Bearden worked on the cleanup crew with Seals prior to Seals transferring to the position of saw operator. Seals claims Bearden asked Seals if he could "cover" for him because of his back injury. Seals encouraged Bearden to report his injury to their supervisor at the time, Ray Wood, which Bearden reported to Seals that he had done. According to Seals, Wood gave Bearden a back brace to wear. The Defendant disputes that Bearden was given light duty.
After being told he could not return to work without a full release, Seals "begg[ed] the doctor to give me a excuse without no restrictions so I can go back to work and won't get evicted out my house." (Doc. 28-3 at 74(289)). Seals testified that the following exchange took place between him and his doctor: "I'm about to be evicted out my house, about to lose my car. He was like, you can't lift nothing heavy. I said, well, my job that I do have, it's on a small saw. I'm not lifting nothing heavy. [The doctor said are you] sure? You sure? I said I'm positive." (Doc. 28-3 at 74(291-292)).
Several days after he was released from the hospital, Seals returned to the hospital and had a "pill cap" endoscopy where he swallowed a small camera which was used to examine his digestive tract.
Three or four days after the start of the pill cap endoscopy, while that procedure was ongoing, and despite the fact that the doctor had not yet given him the results, Seals had already been cleared to return to work by his doctor and brought a note to that effect to the HR department at Lee Brass. On the day he brought in his new doctor's note, Seals ran into McCormick, who at that time was not yet his supervisor
(Doc. 28-3 at 49(191-192)). Seals also testified that she said "I'm glad to see you back in good health." (Doc. 28-3 at 36(137)). Seals told McCormick that he had been hospitalized, but did not tell McCormick about the specific symptoms which had put him in the hospital.
Woods was Seals's supervisor when the Plaintiff returned from the hospital.
Sometime after Seals was released to full duty, in late spring or summer of 2013, McCormick, the supervisor over the cleaning room, took supervisory authority over the saws in order to improve the efficiency of the manufacturing process and make sure that the jobs that were more urgent were prioritized. When Stan Hand became the plant manager
McCormick was viewed by those she supervised as a tough boss because she is a hard worker and expected the same work ethic from those she supervised. McCormick was strict with every employee she supervised. When McCormick was the
The Plaintiff contends that McCormick was not as friendly to African American employees as to Caucasian employees. (Doc. 28-3 at 47(182)). However, Seals testified that McCormick was friendly with the African American employees who she supervised in the Cleaning Room.
McCormick told all of the saw operators, including Seals, that they sometimes took bathroom breaks too frequently. All of the employees who worked on the saws were African American. Seals talked to Lamar Willingham, Stacey McClellan, and Lewis Butts about their feeling that McCormick was discriminating against them because they were African American.
Seals claims that, after McCormick became his supervisor, she timed him when he went to the bathroom and would tell him he had been in the bathroom too long or had gone to the bathroom too frequently. McCormick told all the saw operators, all of whom were African American, that they needed to try and limit the number of bathroom breaks they took and try to make them as short as possible. Seals claims that McCormick watched all the saw operators closely and would make them re-cut parts if she felt a part was not cut properly; Seals does not know if she supervised the employees in the Cleaning Room as closely.
Wood and Deramus allowed the saw operators to end their shifts early so they had more time to shower, but McCormick made the saw operators work until the scheduled end of their shifts. Seals claims that McCormick treated the saw operators differently than Wood or Deramus had because, if they were late coming off a break, McComick would issue a write-up, where Deramus and Wood would not have. However, McCormick never wrote up Seals. McCormick required the saw operators to be at their saws five minutes before the horn signaling the start of work went off. Seals testified that McCormick treated all the saw operators the same way and the saw operators discussed her supervisory style amongst themselves.
Seals never told anyone at Lee Brass he was "disabled." When asked in his deposition whether he had "a physical condition which makes you disabled," the Plaintiff testified "Not at this point now." (Doc. 28-3
McCormick wanted Seals to move from working on a small saw to working on a big saw.
Once, on an unspecified date, when McCormick asked Seals to use a big saw, he told her that he could not lift the heavier parts onto the sawing table and protested that he had not been trained on a big saw. McCormick responded that his inability to lift was not a problem because he could use the crane next to the saw to lift heavy parts, to which Seals responded that the crane in question did not work. Seals testified that McCormick then told him that he needed to go operate a big saw "if he wants the job" so Seals complied and operated a big saw successfully that day. (Doc. 28-3 at 36(139)). Since the crane was not working, Seals got the larger parts onto the saw table by having a forklift operator lift them for him.
On August 21, 2013, Seals was operating a small saw cutting red brass. He had already told McCormick, that day, that he was not feeling well. (Doc. 28-3 at 57(224)). McCormick asked Seals if he needed to go home and Seals said he was alright and was just feeling woozy but he could manage. McCormick told Seals to let her know if he needed to leave.
At some point thereafter, on that same day, McCormick told Seals that he needed to use a big saw to cut a job. McCormick wanted Seals to work on a big saw to cut a "hot job" of parts that were also made of red brass and which needed to ship out as soon as possible. A "hot job" is an order of parts that must ship from Lee Brass very soon to meet customer requirements. When hot jobs arise, everyone in the manufacturing process must strive to get the order ready on time.
In his deposition Seals stated:
(Doc. 28-3 at 49(192)-50(193)). Although McCormick had assigned Seals to use a big saw more than twenty times, Seals testified that this was the first occasion where he told McCormick he could not operate a big saw due to his hospitalization in April.
The following exchange then took place in the Plaintiff's deposition:
(Doc. 28-3 at 50(194-195). Despite his protestations regarding lifting, it is undisputed that, at this time, Seals was in good physical shape and was physically capable of weightlifting, which had been a hobby of his. However, Seals testified that he had not done any weightlifting since April of 2013. (Doc. 28-3 at 92(364)). Seals believes he could bench press between 425 and 475 pounds at that time. (Doc. 28-3 at 58(228)-59(229)).
The Plaintiff also testified that he told Hand that he had not been trained on a big saw, and that Hand told him to stay on a small saw. (Doc. 28-3 at 57(221)). Hand had been the Plant Manager for only a few weeks, was not working there when the Plaintiff was hospitalized, and Seals had not spoken to him previously.
Afterwards, and at some point that same day, Seals began to cut green brass on a small saw. Seals then had an interaction with Underwood, who was operating a forklift. The Plaintiff testified:
(Doc. 28-3 at 61(238)). The Plaintiff testified that the parts Underwood brought were red brass. (Doc. 28-3 at 62(243)). Underwood then said: "You going to cut them, motherfucker. You're going to cut them now. She want them cut. You going to cut them." (Doc. 28-3 at 61(239)). Seals responded: "[Y]ou can put them on the floor. I'll cut them when I'm finished, when I'm finished with this right here." (Doc. 28-3 at 61(239)). The Plaintiff also testified: "I said, I don't care what she said. I'm going finish this first, and then I'll get to that when I got time, if I have time." (Doc. 28-3 at 61(239)). Seals also admits that he swore back at Underwood. After that, McCormick left. (Doc. 28-3 at 64(249)).
McCormick testified that when Underwood attempted to change the pallet that Seals was working on, Seals became angry, and she spoke to the Plaintiff and told him that Underwood was only doing what she had told him to do. (Doc. 28-4 at 35(134)).
According to Hand, both McCormick and Underwood then reported this incident to him. In Hand's deposition, the following exchange took place:
(Doc. 28-8 at 17(62-64)).
After this incident, and about 10 or 15 minutes after Hand had told the Plaintiff to stay on a small saw, McCormick told Seals, again, to work on a big saw cutting the same hot job as before. (Doc. 28-3 at 57(223)). Again, it is undisputed that Seals did not cut anything on a big saw that day.
The Plaintiff states that after he finished the job on the small saw (which he continued to do the entire time), McCormick told him to go to the office. (Doc. 28-3 at 64(251)). The Plaintiff testified that Hand was present when they arrived in the office, and
(Doc. 28-3 at 64(250)). Elsewhere in his deposition, the Plaintiff testified:
(Doc. 28-3 at 60(234)).
Hand testified in his deposition that when he sent the Plaintiff home it was a suspension given to Seals "[b]ecause he threw a part at another employee." (Doc. 28-8 at 18(67)). Until he was suspended, the Plaintiff was never warned, disciplined, or given "progressive discipline" for anything. There is no record of any discipline in his file before he was suspended and ultimately terminated.
McCormick testified that, despite the fact that she was his supervisor, she did not participate in the decision to fire Seals. (Doc. 28-4 at 43(166)). However, the following exchange took place in Hand's deposition:
(Doc. 28-8 at 16(57-59)).
Truss testified that Seals was terminated for refusing to perform a job. (Doc. 28-12 at 20(75)). Between the time Seals was suspended by Hand and the time his employment was terminated, Truss states that he performed an investigation of Seals['s] conduct toward Underwood. Truss testified that he spoke with McCormick,
Truss does not recall anything that he did to investigate. Truss knows of no documentation regarding his investigation. (Doc. 28-12 at 17(64)). Although there is documentation concerning the events which led to Seals's termination, they were all created
Despite the fact that Truss contends that Seals was fired for refusing to perform a job, Truss testified that past threatening and behavior issues factored into the Plaintiff's termination. Indeed, the termination letter which Hand prepared (and the Plaintiff refused to sign) states:
(Doc. 33-4 at 1).
It is undisputed that neither Hand nor McCormick ever used racial terms or racially derogatory terms towards Seals. However, the Plaintiff testified as follows regarding Hand:
(Doc. 28-3 at 50(196)).
Hand was not aware that Seals had been in the hospital. Hand was not working at Lee Brass at the time Seals was hospitalized. Hand never heard anything about Seals spitting up blood nor did he hear anything about Seals wearing a heart monitor because, among other reasons, Hand did not work at Lee Brass until months later in July 2013.
When asked in his deposition if he considered himself disabled, the Plaintiff testified "No, not to work. As far as to work heavy jobs like Lee Brass, yes. But like the job I'm doing now, no." (Doc. 28-3 at 82(323)). When asked again to explain the sense in which he was disabled, he stated:
(Doc. 28-3 at 82(324)). Later he stated: "The disability part of the job to me is that it's unsafe. It's unsafe, and it wears and tears your body." (Doc. 28-3 at 83(325)). He also stated:
(Doc. 28-3 at 86(337-338)).
After Seals was fired, he filed an EEOC charge. Truss testified that he investigated Seals' EEOC charge. The only witness statements that were taken by Truss were taken after Seals filed his EEOC charge.
One of those statements is from McCormick, and it reads: "He started slinging the parts so hard that they were bouncing out of the pan and into the floor." (Doc. 33-5 at 2). In her deposition, McCormick testified her statement was not true and,
On September 9, 2013, Pat McElroy, in Human Resources, sent the Alabama Department of Industrial Relations information relating to Seals's termination, stating Seals was terminated for "insubordination." (Doc. 33-10 at 2). Seals was awarded unemployment compensation benefits. (Doc. 33-11 at 2).
On October 15, 2013, Truss responded on behalf of Lee Brass to Seals's EEOC charge. (Doc. 33-7 at 2). On page two of Defendant's EEOC response it states, "On numerous occasions Mr. Seals would wander from his work station and his supervisor would have to find him and instruct him to stay on his job ..." (Doc. 33-7 at 3). In his deposition, Truss testified McCormick told him Seals would wander off, but he had no idea when this occurred, no documentation of this allegation, and admitted Seals did not receive any discipline or counseling for this allegation. Truss testified this alleged "wandering" did not factor into the decision to terminate Seals, yet he included it in the company's response to the EEOC.
Truss's response also states: "Mr. Seals, not Mr. Underwood, cursed and acted irrationally." (Doc. 33-7 at 3). In his deposition, Truss could not recall whether he ever asked Underwood if he cursed at Seals. (Doc. 28-12 at 45(175)). He could not recall where he got that information. (Doc. 28-12 at 45(176)-46(177)).
Lee Brass' response to the EEOC contains the allegation that Derrick Murphy and Underwood "advised that Mr. Seals began to act irrationally, cursing them, and refused to perform the work that was requested." (Doc. 33-7 at 3). The following exchange took place in Murphy's deposition:
(Doc. 33-3 at 11(40)).
Lee Brass' EEOC response also alleges Seals, "began throwing scrap pieces throughout the shop area." (Doc. 33-7 at 3). There is no evidence in this Court's record to substantiate this statement.
McCormick has been a supervisor for fifteen years and has never been given training on discrimination or retaliation policies or compliance. McCormick has never been trained on any ADA policy or compliance and could not state one thing about Lee Brass's disability policy.
Pat McElroy who works in the Human Resources department has never received training on the ADA. Stan Hand, the plant manager at Lee Brass, has received no
Under the ADA, it is unlawful for an employer to discriminate on the basis of disability in regards to the "terms, conditions, and privileges of employment," including "discharge of employees." 42 U.S.C. § 12112(a). "Employees may claim unlawful discrimination under the ADA by showing either that the employer's facially neutral conduct had a disparate impact on members of a protected class (disparate impact) or that the employer treated certain employees worse than others because they possessed a protected trait (disparate treatment)." Norris v. GKN Westland Aerospace, Inc., 921 F.Supp.2d 1308, 1313 (M.D. Ala. 2013) (Thomson, J.) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003)).
As noted at the beginning of this opinion, the Complaint alleges that the Defendant "harassed [the] Plaintiff, treated [the] Plaintiff differently[,] and terminated [the] Plaintiff," in violation of the ADA. (Doc. 1 at 6). However, in the Plaintiff's brief he alleges disparate treatment only in that he was
The Eleventh Circuit has noted:
Thomas v. Dolgencorp, LLC, 645 Fed. Appx. 948, 950-51 (11th Cir. 2016).
The Defendant argues that the Plaintiff was not suffering from a "disability" as that term is defined by the ADA. The ADA provides:
42 U.S.C.A. § 12102(1). The Plaintiff argues only that the Defendant regarded him as having an impairment. (Doc. 34 at 32-34) One is "regarded as having such an impairment"
42 U.S.C. § 12102(3)(A). However, the impairment cannot be "transitory [or] minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less." 42 U.S.C. § 12102(1)(B).
The Defendant begins its argument by setting out the incorrect law on this issue when it states:
Ward v. City of Gadsden, No. 4:15-CV-0865-VEH, 2017 WL 568556, at *7 (N.D. Ala. Feb. 13, 2017) (Hopkins, J.). Similarly, Sutton v. Lader, 185 F.3d 1203, 1208 (11th Cir. 1999), which held that "in order for a plaintiff to prevail on a perception theory of disability discrimination, he must be able to show that, as with a real impairment, the perceived impairment is `substantially limiting' and significant," is also unavailing to the Defendant.
Still, the Court deems it important to address the only argument made by the Defendant on the "regarded-as" claim — that "no supervisory level employee, nor anyone, at Lee Brass believed at any time that Seals was disabled." (Doc. 27 at 30). Lee Brass contends that McCormick, the Plaintiff's supervisor, "never saw Seals throw up blood at any time nor heard from any other source that he had done so. Nor was McCormick ever aware that Seals had been in the hospital or was wearing a [ ]
The Court also observes that the "regarded as" prong does not apply where the impairment is "transitory [or] minor," and
Finally, the Court must speak to the "comparator" issue. The Eleventh Circuit has stated:
Wolfe v. Postmaster Gen., 488 Fed.Appx. 465, 468 (11th Cir. 2012) (ADA). Again, only in its
Banks v. iGov Techs., Inc., 661 Fed.Appx. 638, 644 (11th Cir. 2016). In this case, and as shown in the next section of this opinion, there is circumstantial evidence of discriminatory intent.
Because in the instant case these two discussions overlap, the Court will address them together. Since the Plaintiff has survived summary judgment on whether or not he can make out a prima facie case, the burden shifts to the Defendant
Voudy v. Sheriff of Broward Cty. Florida, No. 16-12059, 2017 WL 2983892, at *4 (11th Cir. July 13, 2017) (unpublished) (internal quotations and citations omitted). If the Defendant successfully articulates such a reason, or reasons,
Brooks v. Cty. Comm'n of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). To show pretext, the Plaintiff must demonstrate "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (internal quotations and citations omitted).
In the instant case, summary judgment is due to be denied either because the Defendant cannot get its legitimate non-discriminatory reason straight, or because the reason or reasons it gives are unworthy of credence.
First, it is inconsistent with the Defendant's
Second, the Defendant has offered several different and inconsistent reasons why Seals was fired. Hand and Truss cannot agree on why the Plaintiff was fired. Hand says it was because Seals threw a part at Underwood (Doc. 28-8 at 18(67)), and Truss says it was for refusing to perform a job (doc. 28-12 at 20(75)).
(Doc. 35 at 18-19) (emphasis added) (citations omitted). These inconsistent, changing explanations are enough to establish pretext. See, Faircloth v. Herkel Investments Inc., 514 Fed.Appx. 848, 851 (11th Cir. 2013) ("[T]he identification of inconsistencies in an employer's testimony can be evidence of pretext."); Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (on review of grant of renewed motion for judgment as a matter of law after jury verdict, shifting reasons for termination allowed the fact finder to find the proffered reason unworthy of credence).
Furthermore, it is undisputed that the Defendant failed to follow the progressive discipline policy when it terminated the Plaintiff, and "[a]n employer's deviation from its established policies may be evidence of pretext." King v. Sec'y, US Dep't of the Army, 652 Fed.Appx. 845, 847 (11th Cir. 2016) (citing Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir. 2006)). Even assuming, as Truss stated in his deposition, that this incident (whether it be refusal to work, throwing a part, or some other combinations of reasons) was serious enough to warrant termination without going through the intermediate steps of the policy
(Doc. 28-2 at 60). No one examined the Plaintiff's past record, which was spotless, before suspending and terminating him. Furthermore, assuming the termination was for throwing the part, no one spoke to the Plaintiff and asked him if he did so, which is also required by the policy. Finally, although Truss claims that he conducted an investigation into the circumstances surrounding the Plaintiff's termination, a reasonable jury could conclude that he conducted
In light of these facts, the Court concludes that either the Defendant has failed to offer a clear legitimate non-discriminatory reason, or that the reasons which it gave are inconsistent and otherwise implausible, thereby establishing that, for summary judgment purposes at least, they are a mere pretext for discrimination. Summary judgment will be denied on the issue of whether the Plaintiff was terminated in violation of the ADA.
The Plaintiff claims that he was fired based of his race, African American, in violation of 42 U.S.C. § 1981. The Defendant does not move for summary judgment on this issue, arguing instead that "Seals [argues] that he was not allowed to return to work on medical restrictions where Caucasian employees allegedly were allowed to do so." (Doc. 27 at 32) (citing doc. 1 at 8-9, ¶¶ 47-57). While that is
Mosley v. Alabama Unified Judicial Sys., Admin. Office of Courts, 562 Fed.Appx. 862, 864 (11th Cir. 2014). Since the Defendant does not move for summary judgment as to the termination claim, that claim will survive.
The Defendant does move for summary judgment on the Plaintiff's claim that white employees were allowed to have "light duty" assignments, but he was not. The Plaintiff makes no argument in response.
Based on the foregoing, it is hereby
(Doc. 28-3 at 48(187)).
(Doc. 28-4 at 48(187)).
(Doc. 28-3 at 86(338)).
(Doc. 28-4 at 35(134)).
(Doc. 28-3 at 65(254)).
(Doc. 28-3 at 61(237)).
(Doc. 28-12 at 25(93-95)).
(Doc. 35 at 15) (bold and italics in original).
(Doc. 35 at 16). These arguments, which were raised for the first time in the Defendant's reply brief, will not be considered. See, Herring v. Sec'y, Dep't of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005) ("[A]rguments raised for the first time in a reply brief are not properly before a reviewing court.").
(Doc. 27 at 31-32).
(Doc. 35 at 20).
