United States District Court, N.D. Alabama, Northwestern Division
K. KALLON UNITED STATES DISTRICT JUDGE
Horton brings this lawsuit against the Hillshire Brands
Company pursuant to Title I of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. §§
12101-12117, as amended by the ADA Amendments Act of 2008
(ADAAA), Pub. L. No. 110-325, 122 Stat. 3553. Horton alleges
that Hillshire discriminated against him after he was
diagnosed with hypertension during a routine pre-employment
physical by suspending him until his condition was under
control, and then by discharging him hours after he returned
to work. Hillshire has now moved for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure,
doc. 30, contending that Horton does not have a qualifying
disability and, alternatively, that it did not discriminate
against him on the basis of that disability. That motion is
now fully briefed, docs. 30; 35; and 37, and ripe for review.
After careful consideration of the parties' briefs and
the record, the court finds that Hillshire's motion is
due to be granted.
STANDARD OF REVIEW
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A dispute about a material fact 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 (1986). Thus, a
party “opposing a properly supported motion for summary
judgment . . . must set forth specific facts showing that
there is a genuine issue.” Id. at 256
(quotation omitted). However, “[t]he evidence of the
non-movant is to be believed, and all justifiable inferences
are to be drawn in [her] favor.” Id. at 255.
Indeed, it is explicitly not the role of the court to
“weigh conflicting evidence or to make credibility
determinations.” Mize v. Jefferson City Bd. of
Educ., 93 F.3d 739, 742 (11th Cir. 1996); see also
Anderson, 477 U.S. at 255 (explaining
“[c]redibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge”).
conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.”
Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (citing Bald Mountain Park, Ltd. v. Oliver,
863 F.2d 1560, 1563 (11th Cir. 1989)). Nor will “a . .
. ‘scintilla of evidence in support of the nonmoving
party . . . suffice to overcome a motion for summary
judgment.'” Melton v. Abston, 841 F.3d
1207, 1219 (11th Cir. 2016) (quoting Young v. City of
Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004)). Instead,
if “the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial, '” and
summary judgment is appropriate. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
accepted a position as a “shipping operator, ” a
position primarily responsible for forklift operation, at a
Hillshire plant in Florence, Alabama in August 2013. Doc.
31-1 at 6, 8, 12. Consistent with Hillshire's routine
practice, Horton was required to successfully complete a
post-offer physical examination prior to starting work.
Id. at 17, 62.
additional part of this initial screening process,
Hillshire's medical department examined employees to
ensure that they were physically able to perform their work
duties. Doc. 31-5 at 4, 7. Hillshire's nursing staff was
primarily responsible for making this determination, but an
outside doctor, Dr. Gary Daniel, frequently performed the
required post-offer physical evaluation. Id. at 6-7;
Doc. 31-6 at 3. To the extent Dr. Daniel found that certain
work restrictions for an employee were necessary, he would
communicate those restrictions to Hillshire so that the
company could determine whether the employee could still
perform her job duties. Docs. 31-4 at 23; 31-6 at 4-5.
Additionally, Hillshire's nursing staff retained the
ability to medically restrict employees based on chronic
problems such as hypertension or elevated cholesterol levels
regardless of Dr. Daniel's evaluation. Docs. 31-5 at 7;
31-7 at 3. Specifically, with respect to hypertension,
Hillshire required forklift operators to maintain a blood
pressure level of 159/99 or below before they could work.
Doc. 31-4 at 13.
post-offer physical, Horton's blood pressure was in
excess of Hillshire's guidelines, registering as 164/120
at best. Doc. 35 at 4. Dr. Daniel referred Horton to his
primary physician for additional blood pressure testing, but
cleared him to work as a “Shipping/Receiving Clerk,
” an administrative position distinct from Horton's
“shipping operator” position which requires the
operation of a forklift. Docs. 31-3 at 24; 31-6 at 4-5. Dr.
Daniel testified that he would not have cleared Horton if he
had known Horton would be operating industrial equipment, and
would have placed him instead on pending status for Hillshire
to determine whether Horton could still safely perform the
essential functions of his job. See Doc. 31-6 at
on Dr. Daniel's clearance, Horton reported to work as
scheduled on September 6, 2013, where he submitted to an
additional examination conducted by a Hillshire nurse, Paula
Mundi. Docs. 31-1 at 21; 31-7 at 6, 13-14. Among other
things, Mundi took Horton's blood pressure, which
measured, at best, 180/116. Docs. 31-1 at 21; 35 at 5. Based
on this reading Mundi informed Horton that she could not
clear him to work and referred him to a local community
clinic for treatment. Doc. 31-7 at 6. Both Mundi and
Horton's direct supervisor explained that Horton would
need to control his blood pressure before Hillshire would
clear him to operate forklifts. Docs. 31-1 at 26-27; 31-7 at
the same time, Human Resources Administrator Deanetta Goodloe
reminded Horton of Hillshire's attendance policies, which
the company initially disclosed to Horton during his
orientation period. Docs. 31-1 at 18, 22-23; 31-3 at 25.
After being sent home, Horton called and informed Goodloe
that he had a doctor's appointment scheduled for
September 10, 2013. Id. at 22-23. Hillshire's
internal documentation subsequently reflects calls from
Horton, related to his absences from work, on September 13,
16, and 17, with the most recent call indicating Horton
expected to return to work on September 23, 2013. Docs. 31-3
at 9; 31-5 at 16; 31-10 at 5-73.
September 10 until September 25, Horton remained under the
care of an outside physician and, as explained above,
properly followed Hillshire's attendance reporting
policy. See Docs. 31-1 at 21-25; 31-9 at 18. That
policy required employees to call and report any absences
expected to last for a day or longer. Docs. 31-2 at 25-26;
31-3 at 25-26. If the employee expected an absence to last
for longer than one day, Hillshire required the employee to
provide an expected return date and to call-in thereafter
only if the employee was unable to return to work on the date
provided. Docs. 31-2 at 25-26; 31-3 at 26. The attendance
line was operated by an automated system that prompted
employees to leave their names, employee identification
numbers, and their expected return dates. Docs. 31-1 at 18;
31-3 at 4, 8. A Hillshire employee, usually Goodloe, would
subsequently review the messages and maintain a record of
absent employees in a call log. Doc. 31-3 at 4-5, 24. Three
consecutive days of unreported absences would result in
termination, doc. 31-2 at 26, but the failure to properly
report an absence, standing alone, would not trigger any
action until Human Resources received notice of the absences.
Doc. 31-3 at 11. Instead, the Human Resources Department
relied on reports from supervisors to alert them to absent
employees. Id. at 11. Hillshire then
checked the call log to determine if the employee had
properly complied with its attendance policy. Id.
around September 25, 2013, Horton sought to return to work.
Docs. 31-1 at 24; 31-5 at 14, 16; 31-9 at 18. However, when
Hillshire checked his blood pressure, it registered at
160/110, still above Hillshire's requirements. Docs. 31-5
at 14; 31-7 at 6-7. As a result, the medical staff declined
to clear Horton for work, and sent him home for a second
time. Doc. 31-1 at 25; 31-7 at 6.
the parties disagree on whether Horton properly complied with
the attendance policy. Horton says he continued to call and
report his absences, although he does not remember the phone
number he used or the last date he called to report an
absence. Doc. 31-1 at 28, 30, 34-35. In contrast,
Hillshire's call log indicates that Horton failed to
contact Hillshire after he was sent home again and that it
next heard from Horton when he returned to Hillshire on
October 14, 2013 with a note from his medical provider
authorizing him to return to work. Docs. 31-1 at 15-16, 28;
31-10 at 5-73. That day, Horton's blood pressure
registered as 138/94, within acceptable levels. Doc. 35 at 6.
Accordingly, the medical department cleared Horton and
allowed him to clock in. Docs. 30 at 16-17; 31-1 at 15, 29.
Horton was on the job for approximately two hours before a
manager in Human Resources sent him home, explaining that
Hillshire would follow up with him later. Doc. 31-1 at 18-19,
31; 31-9 at 22. Horton called Hillshire the next day, as
instructed, seeking an update with regard to his employment
status. Doc. 31-1 at 18-19. It is apparent from internal
communications following this call that Hillshire had
developed no clear rationale for Horton's discharge, and
that Hillshire was unsure of Horton's status based on his
long-term absence from work. Id. at 19; Docs. 31-3
at 5-8; 31-9 at 22-23. Shortly thereafter, Hillshire informed
Horton that it had discharged him based on his failure to
follow its attendance policy. Doc. 31-1 at 19. This lawsuit
ADA prohibits discrimination ‘against a qualified
individual on the basis of disability.'”
Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir.
2016) (quoting 42 U.S.C. § 12112(a)). To establish a
prima facie case under the statute, the plaintiff must show
that: “(1) she is disabled, (2) she was a
‘qualified individual' [at the relevant time], and
(3) she was discriminated against on account of her
disability.” Id. As to the first prong, Horton
concedes that he does not have a disability. Instead, he is
pursuing a regarded as claim, doc. 35 at 12, which does not
require that the employee show that she is actually impaired.
See Surtain v. Hamlin Terrace Found., 789 F.3d 1239,
1246 (11th Cir. 2015) (stating that one of the ways a
plaintiff may qualify as “disabled” under the ADA
is if she was “regarded as having . . . an
impairment”) (quotation omitted).
satisfy the regarded as prong of the ADA definition of
disability, the plaintiff need only establish that
“‘she has been subjected to an action prohibited
under [the ADA] because of an actual or perceived physical or
mental impairment whether or not the impairment limits or is
perceived to limit a major life activity, '”
Lewis v. City of Union City, 877 F.3d 1000, 1011
(11th Cir. 2017) (quoting 42 U.S.C. § 12102(3)(A)), so
long as the perceived impairment is not transitory or minor.
42 U.S.C. § 12102(3)(B); see also Dulaney v.
Miami-Dade Cty., 481 Fed.Appx. 486, 489 & n.3 (11th
Cir. 2012) (noting that under the ADAAA the plaintiff may be
“regarded as having a disability [without] . . . a
showing that the employer perceived the individual to be
substantially limited in a major life activity”).
Indeed, when Congress enacted the ADAAA, “one of its
purposes was to ‘convey that the question of whether an
individual's impairment is a disability under the ADA
should not demand extensive analysis.'” Mazzeo
v. Color Resolutions Int'l, LLC, 746 F.3d 1264, 1268
(11th Cir. 2014) (quoting 42 U.S.C. §12101 note).
satisfy the second prong of the prima facie case, the
plaintiff must show she is a qualified individual, i.e., that
“‘with or without reasonable accommodation, [she]
can perform the essential functions of the employment
position that [she] holds or desires.” Lewis,
877 F.3d at 1012 (quoting 42 U.S.C. § 12111(8)).
“‘Whether a function is essential is evaluated on
a case-by-case basis by examining a number of
factors.'” Id. (quoting D'Angelo
v. ConAgra Foods, Inc., 422 F.3d 1220, 1230 (11th Cir.
2005)). These factors include, among other things, the
employer's judgment regarding essential job functions,
any written job descriptions, work experiences of current and
past employees, and the amount of time spent performing the
function at issue. See Samson v. Fed. Exp. Corp.,
746 F.3d 1196, 1201 (11th Cir. 2014). ...