United States District Court, N.D. Alabama, Western Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
this Court is Defendant's Motion for Summary Judgment.
(Doc. 33.) Plaintiff Derrick Ellis Gardner sued Defendant
City of Northport for disability discrimination under the
Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101, et seq. and under the
Rehabilitation Act of 1973, 29 U.S.C. § 701, et
seq.; and for race discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq. Defendant has moved for summary judgment on
all of Plaintiff's claims. (Doc. 25.) The issues raised
in Defendant's Motion for Summary Judgment have been
briefed by both parties and are now ripe for review. Upon
full consideration of the legal arguments and evidence
presented, Defendant's Motion for Summary Judgment will
be granted and this action dismissed.
was a police officer at the City of Northport Police
Department, and began his employment there in 1999. By all
accounts Plaintiff was an excellent police officer who
performed his job admirably and got along with his coworkers.
However, Plaintiff suffered a number of health problems that
affected his ability to perform his police officer duties.
Most important to this action, Plaintiff has suffered from
type two diabetes since 1995.
complications from his diabetes, Plaintiff suffered a
hemorrhage in his right eye on April 18, 2014. Plaintiff went
to see his retinal specialist Dr. Matthew Oltmanns
(“Dr. Oltmanns”) on April 21, 2014. Dr. Oltmanns
noted during the visit that Plaintiff should not drive or go
to work in his current state, and that Plaintiff should
return a week later to see if his condition improved.
Apparently, Plaintiff's condition did not improve within
the next week, as Dr. Oltmanns performed two surgeries on
Plaintiff's right eye on April 30 and June 18, 2014.
Following the June 18th surgery, Dr. Oltmanns indicated that
Plaintiff should not perform heavy lifting, bending, or
straining and that Plaintiff should not return to work
“at this time.”
the initial period of Plaintiff's illness, he used
accumulated paid leave to cover his absences. This individual
paid leave lasted approximately a month. Defendant's
leave policy also allowed for so-called “donated leave,
” where employees that had accumulated unused paid
leave could “donate” that unused leave
voluntarily to another employee. Certain coworkers donated
approximately five (5) weeks under Defendant's policy,
allowing Plaintiff to remain on paid leave until mid-June
2014, Plaintiff also submitted an application for FMLA leave.
The Defendant chose to construe Plaintiff's twelve-week
FMLA leave period as beginning to run only after his paid
leave had expired. Thus, according to Defendant, the FMLA
unpaid-leave period began to run June 18, 2014 until it
expired on September 11, 2014. On September 4, 2014, Dr.
Oltmanns noted that Plaintiff's right eye “will be
a challenge-could be multiple surgery process. . . . This
will be a long process.” (Doc. 33 ¶ 31.) Plaintiff
was not cleared to return to work on September 11, 2014.
Plaintiff was not allowed to return to work at the expiration
of his FMLA leave on September 11, 2014, then City
Administrator Scott Collins (“Collins”)
instructed HR Director Joseph Rose (“Rose”) to
grant Plaintiff additional time off to recover. Plaintiff had
another appointment with Dr. Oltmanns on September 18, 2014.
September 18, 2014, Plaintiff sent Rose an email stating that
Plaintiff was not yet cleared to return to work, and would
need another surgery on his eye for October 15, 2014 and
“at least 3-4 weeks” to recover. (Id.
¶ 34.) In response, Rose informed Collins of this
additional request for leave. Collins asked Rose to contact
Plaintiff and to meet in person to discuss how much time
Plaintiff would need to return to work. Collins and Rose met with
Plaintiff and his wife on September 24, 2014, where Plaintiff
told Collins and Rose that he was having trouble contacting
Dr. Oltmanns' office for a clear answer, but that he had
an appointment with Dr. Oltmanns the following day on
September 25, 2014. Collins approved another extension for
Plaintiff until October 6, 2014 to get his needed medical
documentation releasing him to work.
received a “return-to-work” note from Dr.
Oltmanns on September 25, 2014, and Plaintiff gave that note
to Rose on the same day. The note stated in full:
Our patient, Derrick Gardner, is released back to work with
no physical restrictions until October 15, 2014. His visual
acuities are 20/50 RIGHT eye, and HAND MOTION in the LEFT
(Id. ¶ 38.) Upon receipt of the letter, Rose
was unsure of the meaning of “HAND MOTION” on the
note. He decided to send the note to Dr. Peter Casten
(“Dr. Casten”), an occupational medical
specialist at DCH Hospital, to schedule a fitness-for-duty
test for Plaintiff.
Casten reviewed the note sent to him by Rose, and called Dr.
Oltmanns to directly speak to him about the vision
requirements for a police officer and Plaintiff's vision.
During that talk, the two doctors agreed that Plaintiff's
current vision did not meet the Defendant's requirements
to be a police officer. In his chart notes for September 25,
2014, Dr. Oltmanns wrote:
Spoke with Dr. Casten at DCH (Occ. Health), based on
patient's current VA's [visual acuities], he will
not recommend patient continue normal work as police
officer. I agree with this assessment. Patient should not be
active duty police at this time.
(Id. ¶ 42 (underline in original).) Dr. Casten
subsequently sent Rose a letter stating “[Plaintiff]
does not meet visual requirements for a police officer until
further notice.” (Id. ¶ 40.) In addition
to the note, Dr. Casten's office called Rose to inform
him there was no need to schedule a fitness-for-duty test for
Oltmanns then met with Plaintiff on October 9, 2014 for a
follow-up appointment. Dr. Oltmanns' note from that
appointment stated that he “anticipat[ed] multiple
surgeries for [Plaintiff's] left eye with silicone
oil” and that he would have “significant
postoperative hemorrhage that will need to be dealt
with.” (Doc. 34-1 Ex. A Def. Ex. 17.) It was Dr.
Oltmanns' opinion that even after multiple surgeries it
would be unclear whether Plaintiff's vision would
improve. (Doc. 34-1 Ex. A Def. Ex. 17.)
of the medical opinions provided by Dr. Casten and Oltmanns
that Plaintiff was unable to return to work within a finite
period, Collins determined to terminate Plaintiff's
employment. Plaintiff and his wife met with Collins, Rose,
and Chief of Police Burton on October 10, 2014. In that
meeting, Collins told Plaintiff that he would not be able to
work for Defendant any more. Collins also gave Plaintiff a
letter outlining what Collins believed to be the
accommodations previously given to Plaintiff, including not
running the twelve-week FMLA period concurrently with
Plaintiff's paid leave and the extra time given to
Plaintiff after the expiration of the statutorily mandated
FMLA period. Collins explained that Defendant was terminating
Plaintiff's employment because Plaintiff had been unable
to work for over five months and would need at least two more
months for additional surgeries to his right eye. Collins
additionally stated that at the conclusion of those surgeries
it was not certain that Plaintiff's vision would even
have improved to the point where it needed to be. After
giving Plaintiff these reasons, Collins asked Plaintiff if he
had any questions. Plaintiff said that he did not.
Plaintiff had the right to appeal his termination to the
Northport Civil Service Board, there is no record of an
appeal. On December 8, 2014, Plaintiff filed an EEOC charge
alleging violations of Title VII and the ADA. Following its
investigation, on September 19, 2015, the EEOC found cause to
believe that Defendant violated Plaintiff's rights under
the ADA. The parties attempted conciliation on October 20,
2015, but were unable to resolve their differences. On May
24, 2016, the EEOC issued Plaintiff the right to sue notice.
Plaintiff filed his Complaint in this action on August 10,
motion for summary judgement is appropriate when “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 fact is
“material” if it “might affect the outcome
of the suit under the governing law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see
also Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d
1287, 1294 (11th Cir. 2013). A genuine dispute as to a
material fact exists “if the nonmoving party has
produced evidence such that a reasonable factfinder could
return a verdict in its favor.” Greenberg v.
BellSouth Telecommunications, Inc., 498 F.3d 1258, 1263
(11th Cir. 2007) (quoting Waddell v. Valley Forge Dental