United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE.
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
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.
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.
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). 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).
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.
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).
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.
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).
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).
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,
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).
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
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
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
(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.
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).
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).
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).
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).
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).
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).
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).
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).
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).
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.).
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).
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] ...