United States District Court, N.D. Alabama, Middle Division
ANNEMARIE CARNEY AXON UNITED STATES DISTRICT JUDGE
Kimberlie Durham (“Ms. Durham”) sued her former
employer, Defendant Rural/Metro Corporation
(“Rural/Metro”) for discrimination in violation
of Title VII, as amended by the Pregnancy Discrimination Act
of 1978 (“PDA”). Ms. Durham's claim arises
out of Rural/Metro's refusal to assign her a “light
duty” or dispatch position after Ms. Durham's
doctor imposed lifting restrictions during her pregnancy. Ms.
Durham maintains that Rural/Metro intentionally refused to
accommodate her lifting restrictions in the same way it
accommodated other individuals with lifting restrictions
because she was pregnant.
the court is Rural/Metro's motion for summary judgment.
(Doc. 40). The parties have fully briefed the motion. (Docs.
41, 44, 45). For the reasons explained below, the court
GRANTS the motion.
STANDARD OF REVIEW
court shall grant summary judgment 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). The court views the evidence in the light
most favorable to the non-moving party. Baas v.
Fewless, 886 F.3d 1088, 1091 (11th Cir. 2018).
“The moving party bears the initial burden of
demonstrating the absence of a genuine dispute of material
fact.” FindWhat Inv'r Grp. v.
FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323
March 2, 2015, Rural/Metro hired Kimberlie Durham to work as
an Emergency Medical Technician (“EMT”) at their
Pell City, Alabama location. (Doc. 1 at 3; Doc. 42-3 at 17).
Rural/Metro describes an EMT as someone who “[r]esponds
to emergency and non-emergency requests, provides Basic Life
Support (BLS) as needed[, ] and transports sick or injured
people . . . .” (Doc. 42-2 at 114). There is a physical
component to the job as well, which requires that EMT's
“frequently lift and/or move up to 20 pounds and
occasionally lift and/or move, with help, up to 100
pounds.” (Doc. 42-2 at 115). According to Ms. Durham
the physical demands of the job as physically lifting
stretchers, moving patients, restocking supplies, and moving
equipment between trucks “[p]retty much all day
long.” (Doc. 42-1 at 17).
Crowell managed Rural/Metro's Pell City, Alabama location
where Ms. Durham worked. (Doc. 42-3 at 11, 17). In September
2015, approximately five months after she was hired, Ms.
Durham told Crowell that she was pregnant. (Doc. 42-1at 19;
Doc. 42-3at 31). In the same conversation, Ms. Durham also
disclosed to Crowell that her doctor had restricted her from
lifting more than fifty pounds during her pregnancy. (Doc.
42-1 at 20; Doc. 42-3at 31). Crowell told Ms. Durham that she
would not be able “work on the truck” with the
lifting restriction. (Doc. 42-1 at 21). Durham agreed.
(See Doc. 42-1 at 21; doc. 42-3 at 25).
alternative to working on the truck, Ms. Durham requested
that Crowell “move [her] to either light duty or
dispatch.” (Doc. 42-1 at 21). Rural/Metro has a written
“light duty” policy, formally known as the
Transitional Work Program (“Light Duty Policy”).
(Doc. 42-6). Rural/Metro created the Light Duty Policy
“to temporarily modify an employee's existing
position or work schedule, or provide transitional
assignments to accommodate temporary restrictions identified
by an employee's medical provider.” (Doc. 41,
¶17 (citing doc. 42-6)). By its terms, the Light Duty
Policy only applies to employees who suffer from a
work-related injury or illness. (Doc. 42-6).
with the Light Duty Policy, Crowell informed Ms. Durham that
Rural/Metro only provided “light duty” to
employees who suffered on the job injuries and were on
workers' compensation. (Doc. 42-1 at 22). Thereafter,
Crowell contacted Human Resources about Durham's
pregnancy and lifting restriction. (Doc. 42-3 at 32). Human
Resources confirmed that Ms. Durham was ineligible for light
duty because she was not “workers' comp” and,
as such, did not qualify for the “Transitional Work
Program.” (Doc. 42-3 at 28-29, 37).
response to Ms. Durham's request for a “move”
to dispatch, Mr. Crowell informed Ms. Durham that he would
have to “get back with [her].” (Doc. 42-1 at 21).
Mr. Crowell then discussed with Human Resources whether there
were any open, off-truck positions. (Doc. 42-3 at 33-34). Mr.
Crowell testified that his office was fully staffed and to
put Ms. Durham on dispatch would be “creating an extra
person that I did not need.” (Doc. 42-3 at 36-37).
During her deposition, Ms. Durham also testified that she was
not aware of any available light duty positions at the time
she sought accommodation. (Doc. 42-1 at 60). But in a
declaration submitted after her deposition, she recalled open
dispatch positions “at the time she informed
Rural/Metro of her lifting restriction.” (Doc. 44 at 10
(citing doc. 44-2, ¶3)).
Ms. Durham was not eligible for FMLA leave due to her short
tenure at Rural/Metro, the only available option was unpaid
personal leave. (Doc. 42-1 at 23, 27). Rural/Metro's
Unpaid Personal Leave Policy “allows employees to take
unpaid personal leave for medical reasons, and is available
to employees who have either exhausted their leave under the
FMLA, or are not eligible for FMLA leave.” (Doc. 41,
¶ 21). Leave is granted for up to ninety days, with the
possibility of an extension of up to an additional ninety
days. (Id.). Employees are prohibited from taking
unpaid personal leave “for the purpose pursuing another
position, temporarily trying out new work, or venturing into
business.” (Doc. 43-8 at 3).
October 6, 2015, Rural/Metro mailed Ms. Durham a letter
advising that she could request a personal leave of absence.
(Doc. 41, ¶ 25). The letter instructed Ms. Durham to
complete the leave request and return it to Human Resources.
(Id.). Ms. Durham reviewed the policy and understood
its language to prohibit her from finding another job or
filing for unemployment. (Doc. 44 at ¶ 18). Ms. Durham
contacted Human Resources to ask if there were any other
options outside of taking unpaid leave. (Doc. 42-1 at 27).
She was advised that unpaid leave was her only option. (Doc.
42-1 at 27).
Durham decided not to sign the unpaid leave paperwork. (Doc.
1 at ¶ 38). She was not scheduled to work after
September 28, 2015. (Doc. 44 at ¶13). On November 12,
2015, Ms. Durham filed a Charge of Discrimination with the
Equal Employment Opportunity Commission alleging sex
discrimination based on her pregnancy. (Doc. 43-13).
Thereafter, she was issued a Notice of Right to Sue and filed