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Horton v. Hillshire Brands Co.

United States District Court, N.D. Alabama, Northwestern Division

April 10, 2018




         Steven 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.


         Summary 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”).

         “[M]ere 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) (citation omitted).

         II. FACTS

         Horton 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.

         As an 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.

         At his 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 4-5.

         Based 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 6, 14.

         Around 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.

         From 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.

         On or 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.

         Thereafter, 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 followed.


         “The 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).

         To 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).

         To 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). ...

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