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Jackson v. The City of Birmingham

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

March 6, 2019

ERIC JACKSON, Plaintiff,
v.
THE CITY OF BIRMINGHAM, Defendant.

          MEMORANDUM OPINION AND ORDER

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.

         Plaintiff Eric Jackson is a member of the Army National Guard and a former employee of the City of Birmingham. He worked for the City as a parking enforcement officer from February 2012 until the City terminated his employment in August 2014. While working for the City, Mr. Jackson was called to active duty in Afghanistan. When he returned from his military service, Mr. Jackson suffered from PTSD. Mr. Jackson's PTSD made it difficult for him to report to work on time or to complete full shifts. Mr. Jackson asked the City to modify his work schedule to give his doctor time to regulate his PTSD medication. The City did not grant Mr. Jackson's request for an accommodation, and the City terminated Mr. Jackson's employment for violating the City's attendance policy.

         Mr. Jackson contends that the City violated the Uniformed Services Employment and Reemployment Rights Act or USERRA by classifying him as a probationary employee when he returned from his deployment, subjecting him to discipline, and ultimately terminating his employment. Mr. Jackson also contends that the City violated the Americans with Disabilities Act or ADA by failing to accommodate his PTSD and by terminating his employment because of his disability.

         Pursuant to Rule 56 of the Federal Rules of Civil Procedure, the City has asked the Court to enter judgment in its favor on the following issues: (1) whether the City violated USERRA by requiring Mr. Jackson to complete a probationary training period when he returned from military leave, and (2) whether Mr. Jackson is a qualified individual under the ADA. For the reasons explained below, the Court finds that material questions of fact exist, and the City is not entitled to judgment as a matter of law on these issues.[1]

         I. STANDARD OF REVIEW

         “The 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). To demonstrate that there is a genuine dispute as to a material fact that precludes summary judgment, a party opposing a motion for summary judgment must cite “to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         When considering a summary judgment motion, a district court cannot make credibility determinations regarding the evidence; that is the work of jurors. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). “A litigant's self-serving statements based on personal knowledge or observation can defeat summary judgment.” United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018); see Feliciano, 707 F.3d at 1252 (“To be sure, Feliciano's sworn statements are self-serving, but that alone does not permit us to disregard them at the summary judgment stage.”). When deciding a motion for summary judgment, a district court must view the evidence in the record in the light most favorable to the non-moving party and draw reasonable inferences in favor of the non-moving party. Bivens v. Bank of America, N.A., 868 F.3d 915, 918 (11th Cir. 2017); see Feliciano, 707 F.3d at 1252. Accordingly, the Court presents the evidence in the record in the light most favorable to Mr. Jackson because he is the non-movant.

         II. RELEVANT FACTS

         On January 17, 2012, the City hired Mr. Jackson as a parking enforcement officer. (Doc. 20-1, p. 18). A parking enforcement officer issues parking citations to motor vehicle operators who violate the City's parking ordinances. (Doc. 23-3, p. 1). According to the job description for the parking enforcement officer position, a parking enforcement officer performs the following essential functions:

Patrols assigned area either by foot or vehicle; issues parking citations; informs violators of relevant parking laws and regulations. Assists the public by giving directions and informing them of available parking facilities; may assist the public in locating vehicles. Operates and programs hand held computer units and printers used to issue citations. Performs routine preventative maintenance on three-wheel vehicles. Assists the flow of traffic by asking drivers who are double parked, parked in loading zones, handicapped spaces or no parking zones to move to designated areas. Reports all damaged parking meters, street markers and signs.

(Doc. 23-3). One parking enforcement officer monitors each of the City's parking zones. (Doc. 20-1, p. 20, tp. 78). The regular work schedule for parking enforcement officers is Monday through Friday, 8:00 a.m. until 5:00 p.m. (Doc. 20-1, p. 23; Doc. 21-1, p. 14).

         The parking enforcement officer position is a classified position. (Doc. 22-1, p. 16). Pursuant to Section 2.13 of the Supplemental Personnel Policies and Procedures for the City of Birmingham, “[c]lassified employees shall serve a probationary period of twelve months.” (Doc. 20-9, p. 6). According to City policy, “[c]lassified employees accrue sick leave or vacation leave during their probationary period however they may not use sick leave or vacation leave during their probationary period, ” unless their probationary period relates to a promotion. (Doc. 20-9, p. 6).

         Mr. Jackson's direct supervisor was Parking Enforcement Officer Supervisor Jose Martinez. Mr. Martinez reported to Chief of Traffic Operations Will Goodman. Mr. Goodman reported to Traffic Engineer Greg Dawkins. (Doc. 20-1, p. 18, p. 69; Doc. 21-1, pp. 4-5; Doc. 22-1, p. 7; Doc. 23-1, pp. 5, 8-9; Doc. 23-2, p. 1).

         During Mr. Jackson's first week of employment, senior parking enforcement officer Tiwana Bailey accompanied Mr. Jackson on his routes and provided him with training on how to use a hand-held set, how to operate the vehicle or buggy that parking enforcement officers drive, and how to write tickets. (Doc. 20-1, p. 20; Doc. 23-24, p. 5; Doc. 31-1, ¶ 2). During the second and third weeks of his employment, Mr. Jackson worked by himself in the field without supervision. (Doc. 20-1, pp. 22-23; Doc. 31-1, ¶ 2).

         Mr. Jackson did not receive direct training on parking ordinances. Instead, his supervisors gave him the book containing the ordinances and told him to read the ordinances. (Doc. 20-1, p. 20). On February 6, 2012, Mr. Jackson attended an orientation class on the City's general employment policies. (Doc. 20-1, p. 19; Doc. 31-1, ¶ 2).

         On February 7, 2012, less than one month after the City hired him, Mr. Jackson received a letter from the Alabama Army National Guard to provide to the City. The letter stated that later that month, Mr. Jackson would be deployed to Afghanistan for one year. (Doc. 20-14). Mr. Jackson worked until February 9, 2012, and he reported to active duty on February 13, 2012. (Doc. 20-12; Doc. 20-13). Mr. Jackson completed less than one month of his 12-month probationary training period before he left for active military service. (Doc. 20-1, p. 22).

         On June 14, 2012, while Mr. Jackson was on military leave, the City's Office of Personnel sent him a letter concerning his pay and benefits. (Doc. 20-19). The letter states, in relevant part:

As you may know under the City of Birmingham's Military Leave Resolution 392-08 (MLR 392-08) we will continue your pay and benefits while deployed to a “War Zone”, or DOD specified area of Hostile Fire (HF) or Imminent Danger (ID). Your entitlements under this resolution are set to expire effective February 16, 2013. If for some reason you are maintained on active service past this date please provide this office with qualifying orders prior to the expiration of your current entitlement. In addition, if you are released from service prior to this date it is your responsibility to notify this office so that we may adjust your entitlements.
We must also inform you that the MLR 392-08 is only a resolution and subject to termination by the Mayor/City Coun[cil] at their discretion. As a reminder continuation of your pay and benefits past 30 days are not mandated under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
Again thank you for your SERVICE! YOUR COMMITMENT KNOWS NO BOUNDS, NEITHER SHOULD OURS!

(Doc. 20-19) (emphasis in June 14, 2012 letter). The City's Military Leave Resolution 392-08 states:

any permanent employee of the City of Birmingham called to duty in defense of country to be deployed in a military war zone will receive full salary as well as benefits for the entire time of their deployment. Upon which time that employee returns and is available to resume employment by the City of Birmingham, that employee's job or position will be available.

(Doc. 21-3, p. 1) (italics omitted). Resolution 392-08 defines “permanent employee” as a City of Birmingham “employee who has completed a mandatory twelve (12) month probationary period.” (Doc. 21-3, p. 1).

         In January 2013, Mr. Jackson returned from Afghanistan. (Doc. 20-1, p. 24). The National Guard extended Mr. Jackson's military service for another year and assigned him to the Warrior Transition Battalion in Ft. Gordon, Georgia. The Warrior Transition Battalion is known as the Wounded Warrior Program. (Doc. 20-15; Doc. 20-16; Doc. 20-17; Doc. 20-18; Doc. 31-1, ¶ 3). While participating in the program, Mr. Jackson received treatment for PTSD. (Doc. 31-1, ¶ 3).

         In January of 2014, the City gave Mr. Jackson a merit pay increase based on the amount of time that he had been employed with the City. (Doc. 23-1, p. 20; Doc. 23-4).

         On February 18, 2014, Mr. Goodman emailed Mr. Dawkins, Mr. Martinez, and Assistant Traffic Engineer Sedrick Rutledge. (Doc. 23-5, p. 1). Mr. Goodman attached to the email pictures of Mr. Jackson. (Doc. 23-5, pp. 2-9). The email states: “Thought these pics of Parking Officer Eric Jackson would be of interest. As far as I know he is still on Traffic Engineering budget receiving his normal pay. Serious abuse of taxpayer dollars. Also see his CD under (Google….. Visionary Alter Ego).” (Doc. 23-5, p. 1).

         On February 24, 2014, the Army honorably discharged Mr. Jackson from service for medical reasons. (Doc. 20-1, p. 25; Doc. 20-20). After his discharge, Mr. Jackson received a disability rating because of his PTSD diagnosis. (Sealed Doc. 27-3, p. 8; Doc. 31-1, ¶ 5).

         On March 10, 2014, in an email to Mr. Goodman, the payroll coordinator for the City's traffic engineering department explained that Mr. Jackson had 90 days from the date of his discharge from the Army to report to work, so Mr. Jackson would return to work in May 2014. (Doc. 22-11). Mr. Goodman responded, “[n]ot cool with me at all. However, someone else calls the shots on these situations. He's milking it! If he can handle all of his other affairs he should be able to come to work.” (Doc. 22-11).

         In a message dated March 11, 2014, Mr. Dawkins explained to Mr. Goodman that under federal law, the City must give Mr. Jackson 90 days from the end of his military service to report to work. (Doc. 23-6, p. 1). Mr. Goodman responded:

I know the policy allows Mr. Jackson to report 90 days after the end of military duty. I just have a problem with this whole flagrant abuse of the system. Any one who can conduct a business, record rap videos and handle all of the other situations that he is managing has to be somewhat sound. I wish Mrs. Polk would look into this whole policy of paying personnel a full salary while they're in a military status. I think we're creating a loop hole for abusers.

(Doc. 23-7, p. 1). Mr. Goodman continued to exchange emails with Mr. Dawkins about the rules and policies governing Mr. Jackson's return to work, and Mr. Goodman wrote that he would like to deny Mr. Jackson vacation “because we need him back asap.” (Doc. 22-12, p. 1).

         Consistent with arrangements that he made with the City, Mr. Jackson returned to work on May 27, 2014. (Doc. 20-1, p. 27; Doc. 20-24; Doc. 20-21; Doc. 20-22; Doc. 31-1, ¶ 4). When he returned to work, Mr. Jackson did not consider himself a probationary employee because he had been employed with the City for more than two years, and based on the City's June 14, 2012 letter, he received benefits to which only permanent, non-probationary employees were entitled. (Doc. 31-1, ¶ 4; see also Doc. 20-19; Doc. 21-3, p. 1). For the first week he was back on duty, a supervisor provided instructions to Mr. Jackson, but Mr. Jackson worked in the field independently. (Doc. 31-1, ¶ 4).

         When he returned to work, Mr. Jackson was able to issue citations, patrol his assigned zone, and communicate with drivers. (Doc. 31-1, ¶ 6.b-e). Although he could perform his job functions, the medication that Mr. Jackson took to treat his PTSD caused sleeplessness which, in turn, caused Mr. Jackson, once he finally fell asleep, to sleep through alarms. (Doc. 31-1, ¶¶ 5, 6). Mr. Jackson's sleeplessness also made him “more easily triggered by loud noises and confrontation, ” and “loud noises or argumentative people increased [his] stress level.” (Doc. 31-1, ¶¶ 5, 6.d). The effects of Mr. Jackson's PTSD medication caused him to miss work. Between May 27, 2014 and August 6, 2014, Mr. Jackson was absent 8 times; he arrived to work late 11 times, and he left work early 7 times. (Doc. 20-1, pp. 27, 29-33, 37; Doc. 20-24; Doc. 20-27). According to Mr. Jackson, when he was absent or late, he “always called or texted Jose Martinez or Tiwana Bailey in advance, ” and when he left work early, he “always obtained permission from a supervisor first.” (Doc. 31-1, ¶ 9).

         When Mr. Jackson began having attendance issues, he talked to Mr. Martinez and Mr. Goodman “about what [the City] could do to help him out.” (Doc. 22-1, p. 16). Mr. Jackson explained that he had PTSD, and he “had problems with loud noises, popping sounds, [and] crowded areas.” (Doc. 22-1, p. 16, tp. 64). Mr. Jackson also told Mr. Martinez and Mr. Goodman that “he had problems with confrontations” (Doc. 22-1, p. 16, tp. 64), and “he was having a hard time dealing with the public getting in his face.” (Doc. 21-1, p. 9, tp. 36).

         Mr. Jackson requested “more frequent breaks” and “flexibility with [his] schedule to allow [him] and [his] doctor to adjust” his PTSD medication. (Doc. 31-1, ¶ 5). Mr. Jackson testified that he needed a “flexible” start time because the medications that he was taking were “constantly being switched out to see . . . which one worked better, ” and “it was always a different result after every time.” (Doc. 20-1, p. 41). According to Mr. Jackson, had the City granted his request for an accommodation, his “attendance would have ultimately conformed to the traditional work schedule for a Parking Enforcement Officer, ” and his “stress would have been reduced because it would have allowed [his] doctors time to adjust [his] treatment regime[n].” (Doc. 31-1, ¶¶ 6.a., 6.d.).

         In July 2014, Mr. Jackson again requested flexibility with his schedule while his doctor adjusted his medication. (Doc. 31-1, ¶ 7). Mr. Jackson asked that the City permit him to use leave for this purpose. (Doc. 31-1, ¶ 7). Mr. Martinez indicated that he would speak to Mr. Goodman about the requests for accommodation, but Mr. Jackson did not receive a response. (Doc. 20-1, p. 41). The City did not evaluate whether Mr. Jackson's requests for accommodation were reasonable. (Doc. 21-1, p. 10, tp. 38; Doc. 23-1, pp. 19, 32; Doc. 31-1, ¶ 7).

         On July 3, 2014, Mr. Martinez emailed Mr. Goodman to tell him that Mr. Jackson called in sick. (Doc. 21-10, p. 1). Mr. Goodman responded: “Okay. Thanks [this is] his way of cordially saying he does not want the job. Let's go ahead and get our documentation prepared so that we can turn it over to Mr. Dawkins for dismissal.” (Doc. 21-10, p. 1). On July 7, 2014, Mr. Martinez emailed some notes on Mr. Jackson to Mr. Goodman and explained his (Mr. Martinez's) “concern [that Mr. Jackson] ...


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