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Gardner v. City of Northport

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

June 7, 2018

DERRICK ELLIS GARDNER, Plaintiff,
v.
CITY OF NORTHPORT, Defendant.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         Before 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.)[1] 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.

         I. Facts

         Plaintiff 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.

         Due to 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.”

         During 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.

         In May 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.

         Because 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.

         On 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[2] 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.

         Plaintiff 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 eye.

(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.

         Dr. 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 Plaintiff.

         Dr. 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.)

         Because 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.

         While 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, 2016.

         II. Standard

         A 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 ...


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