United States District Court, N.D. Alabama, Eastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
employment discrimination matter is before the court on
Defendant Mark T. Esper's (the “Army”) motion
for summary judgment. (Doc. 20). Plaintiff Demetrius Tuck, a
former mechanic at the Army Depot in Anniston, Alabama,
asserts that a mid-level manager at the Depot, who harbored a
dislike for individuals with post-traumatic stress disorder,
devised a conspiracy to strip him of his employment. Mr. Tuck
brings his claims primarily under the Rehabilitation Act, and
he specifically alleges disparate treatment, failure to
accommodate, retaliation, and hostile work environment. The
Army moves for summary judgment on all of Mr. Tuck's
by coworkers of making violent threats and of sexual
harassment, Mr. Tuck fails to bring forward the necessary
evidence to substantiate his broad allegations. As to his
failure-to-accommodate claim, Mr. Tuck failed to show that he
requested a reasonable accommodation for his
disability. The court will GRANT the Army's motion for
summary judgment in all respects. The court discusses the
specific factual and legal reasons for its conclusion in more
Tuck filed this employment discrimination lawsuit on January
3, 2017, alleging disparate treatment based on disability
(Count 1); failure to accommodate a disability (Count 2);
retaliation for complaining about disability and racial
discrimination (Count 3); interference with leave under the
Family Medical Leave Act (Count 4); hostile work environment
(Count 5); and violations of 42 U.S.C. § 1983 (Count 6).
Mr. Tuck premised his claims on violations of the Americans
With Disabilities Act (“ADA”), 42 U.S.C. §
12101, the Rehabilitation Act, 29 U.S.C. § 706, et
seq, and the FMLA, 26 U.S.C. § 2612(a)(1). Mr. Tuck
based his retaliation claim on his complaints to the EEOC,
which included racial discrimination claims alongside his
disability discrimination claims. Mr. Tuck's retaliation
claim thus implicates Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, as well as the Rehabilitation
Army moved to dismiss many of Mr. Tuck's claims for lack
of subject matter jurisdiction. Specifically, the Army moved
to dismiss all of Mr. Tuck's claims brought under the
ADA, the FMLA, § 1983, and certain sections of the
court granted the Army's motion, leaving Mr. Tuck's
claim in Count 1 for disability discrimination under the
Rehabilitation Act; his claim in Count 2 for failure to
accommodate a disability under the Rehabilitation Act; his
claim in Count 3 for retaliation under Title VII and the
Rehabilitation Act; and his claim in Count 5 for constructive
discharge under the Rehabilitation Act. (Doc. 11). The Army
now moves for summary judgment on those remaining claims.
judgment is an integral part of the Federal Rules of Civil
Procedure. Summary judgment allows a trial court to decide
cases when no genuine issues of material fact are present and
the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56. When a district court
reviews a motion for summary judgment, it must determine two
things: (1) whether any genuine issues of material fact
exist; and if not, (2) whether the moving party is entitled
to judgment as a matter of law. Fed.R.Civ.P. 56(c).
moving party “always bears the initial responsibility
of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986) (quoting Fed.R.Civ.P. 56). The moving
party can meet this burden by offering evidence showing no
dispute of material fact or by showing that the non-moving
party's evidence fails to prove an essential element of
its case on which it bears the ultimate burden of proof.
Id. at 322-23.
the moving party meets its burden of showing the district
court that no genuine issues of material fact exist, the
burden then shifts to the non-moving party “to
demonstrate that there is indeed a material issue of fact
that precludes summary judgment.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
In reviewing the evidence submitted, the court must
“view the evidence presented through the prism of the
substantive evidentiary burden, ” to determine whether
the nonmoving party presented sufficient evidence on which a
jury could reasonably find for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254
(1986); Cottle v. Storer Commc'n, Inc., 849 F.2d
570, 575 (11th Cir. 1988). Furthermore, the court must view
all evidence and inferences drawn from the underlying facts
in the light most favorable to the nonmoving party.
Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274,
1282 (11th Cir. 1999).
2006, the Army hired Demetrius Tuck, a veteran, as a
“General Equipment Helper” at the Anniston Army
Depot, which provides maintenance services for various
military vehicles. Mr. Tuck's final position with the
Army was “heavy mobile mechanic, ” with his
primary task being mechanical work on various parts of the
Stryker armored personnel carrier.
March 2012, a Veterans Affairs physician diagnosed Mr. Tuck
with depression and possible post-traumatic stress disorder.
(Doc. 29 ¶ 5). Two years later, in May 2014, Mr. Tuck
underwent a “formal” test for PTSD, and a month
after that, in June 2014, a doctor “formally”
diagnosed Mr. Tuck with PTSD. Although the parties dispute
whether and when Mr. Tuck's supervisors knew he had PTSD,
the court assumes in this Opinion that Mr. Tuck's
supervisors were aware that Mr. Tuck had PTSD-or regarded Mr.
Tuck as having PTSD-at all relevant times.
his 2015 retirement, Mr. Tuck worked as a rank-and-file
member of four- or five-person teams maintaining vehicles or
specific components of vehicles. A supervisor directly
managed several teams and a “Division Chief”
managed those supervisors. In addition, each team had a
“lead, ” who acted essentially as the foreperson
of the team.
Tuck's allegations begin in 2012, when the Army assigned
David Funderberg as Division Chief for the teams working on
the Stryker vehicle during Mr. Tuck's shift. Mr.
Funderberg began overseeing the supervisors who oversaw Mr.
Tuck. Mr. Tuck offers disjointed evidence about a multitude
of alleged events between 2012 and 2015 that ultimately led
to his retirement. The court next sets out only the most
relevant of these events in chronological order.
Improper Use of Leave
April 19, 2012, the Army issued to Mr. Tuck a
“letter” instructing him on the proper use of
leave. (Doc. 20-2 at 20). The letter stated that Mr. Tuck had
used leave excessively and in a way that suggested he
required counseling on the proper use of leave. The letter
also imposed additional requirements on Mr. Tuck in
requesting leave. Mr. Tuck testified that he received
“two” or “three” of these letters
during his time with the Army, although he did not say at
what point in his career the other counseling letters came.
deposition, Mr. Tuck acknowledged that he did not always
follow the proper procedure for requesting leave, which
required that the employee submit a written form and request.
Mr. Tuck maintained, however, that the regular practice at
the Depot was to orally request and receive time off from
supervisors, and he asserted that only Mr. Funderberg saw his
use of leave as a problem. However, Mr. Tuck's
supervisors testified that Mr. Tuck was unable to
consistently arrive at work on time.
2012 & 2013 Performance Evaluations
August 2012, Mr. Tuck received a “4” on his
yearly work-performance evaluation, which uses an inverted
scale with “1” being the highest rating and
“5” being the lowest rating. At the Depot, a
“4” rating was not satisfactory and required
counseling and correction. Mr. Tuck's performance review
specifically noted that Mr. Tuck needed to improve coming to
work on time and scheduling leave. (Doc. 20-23 at 2). Mr.
Tuck corrected his leave and absenteeism issues over the next
year and received a “2” on his 2013 evaluation.
(Doc. 29 ¶ 30). Mr. Funderberg approved both ratings.
April 2014, a team “lead, ” Jeff Phillips,
accused Mr. Tuck of insubordination. Mr. Phillips ordered Mr.
Tuck to place tarps on some vehicles. Mr. Tuck refused
because a supervisor had directed him to perform another
Tuck incorrectly believed that team “leads”
lacked authority to give commands to rank-and-file employees,
describing them in his deposition as “assistant[s]
to the supervisor.” (Doc. 20-2 at 39)
(emphasis added). Because, in Mr. Tuck's mind, Mr.
Phillips was merely an assistant to the supervisor,
Mr. Tuck did not believe that Mr. Phillips could give him
Phillips, who, in fact, did have the authority to give
commands to subordinates, did not just accuse Mr. Tuck of
insubordination. In addition, Mr. Phillips reported that Mr.
Tuck suggested a physical fight in addition to refusing the
order. Mr. Tuck denied that allegation.
Sexual Harassment Allegation
2014,  Teresa Bradford, another coworker, accused
Mr. Tuck of two incidents of sexual harassment occurring on
or around the same day. (See Doc. 20-13). First, Ms.
Bradford stated that Mr. Tuck had asked her whether her
husband was around at night with the implication that Mr.
Tuck would be available in a romantic capacity for Ms.
Bradford in her husband's absence. Second, Ms. Bradford
asserted that Mr. Tuck had asked about her preferences in
“nuts, ” a statement taken by Ms. Bradford as
Tuck did not deny making the statements, but rather denied
that either statement constituted sexual harassment. In his
deposition, for example, Mr. Tuck testified that could not
have meant either statement as sexual innuendo because Ms.
Bradford, who was in her 50s, was “elderly.”
(Doc. 20-2 at 32). Mr. Tuck further testified that he thought
Ms. Bradford fabricated her outrage to extend her temporary
employment to permanent employment and to please her husband,
who also worked at the Anniston Army Depot and who, according
to Mr. Tuck, had a “great relationship” with Mr.
Funderberg. (Doc. 20-2 at 33).
the Army investigated Ms. Bradford's allegations, Mr.
Funderberg moved Mr. Tuck to a different team in a different
building on the Anniston Army Depot campus.
Alleged Death Threat
early June 2014, another coworker, Corey Murphy, accused Mr.
Tuck of threatening to kill him and his family during a phone
call after hours and off the Depot's premises. The
testimony on how and why the incident arose was unclear and
lacked context meaningful to the court. In any event, Mr.
Tuck felt it necessary to speak to Mr. Murphy on the phone
after work. Mr. Murphy, however, did not want to talk to or
meet with Mr. Tuck about their unstated issue. Mr. Tuck
nevertheless continued to try to talk with Mr. Murphy, and,
during one phone call, allegedly threatened to kill Mr.
Murphy and his family.
Murphy contacted the police about the incident, but told
police that he only wanted the incident documented.
(See doc. 21-2 at 2). When informed about the
alleged death threat, Depot security officers escorted Mr.
Tuck from his work site to the Depot's counselor, Boyd
Scoggins, who questioned Mr. Tuck about the allegations.
Satisfied that Mr. Tuck did not present a threat to himself
or others, Mr. Scoggins allowed Mr. Tuck to leave and return
to his job.
Tuck maintained that he did not threaten to kill Mr. Murphy
or his family during the phone call. In his deposition, Mr.
Tuck testified that he believed Mr. Murphy fabricated the
allegation because of his supposed familial relation to Mr.
Funderberg, although Mr. Tuck also said that he understood
that Mr. Murphy and Mr. Funderberg were not friendly with
each other. Mr. Tuck further added his belief that
“jealously” and “hate” could have
motivated Mr. Murphy to accuse him, and he agreed that Mr.
Murphy's complaint may have been “just
personal.” (Doc. 20-2 at 39).
Initial EEOC Contact & Union Representative's Meeting