Sherman v. Speer

          RECOMMENDATION OF MAGISTRATE JUDGE

          WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Before the court is Defendant's Motion for Summary Judgment (Doc. 42). Plaintiff has filed a Response (Doc. 45) and Defendant has filed a Reply (Doc. 47). The District Judge has referred this matter to the undersigned United States Magistrate Judge for consideration and disposition or recommendation on all pretrial matters as may be appropriate. (Doc. 18.) Defendant's motion is fully briefed and is ripe for recommendation to the United States District Judge. For the reasons below, the undersigned RECOMMENDS that Defendant's Motion for Summary Judgment (Doc. 42) be GRANTED.

         II. STANDARD OF REVIEW

         Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall grant a motion for “summary judgment if the movant shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). Only disputes about material facts will preclude the granting of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An issue of fact is ‘genuine' if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. An issue is ‘material' if it might affect the outcome of the case under the governing law.” Redwing Vehicleriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson, 477 U.S. at 248).

         Under Rule 56, summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “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 demonstrates the absence of a genuine issue of material fact.” Id. at 323. The movant can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of his case on which he bears the ultimate burden of proof. Id. at 322-23.

         Once the movant has satisfied this burden, the nonmoving party must “go beyond the pleadings and by his own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'” Id. at 324. In doing so, and to avoid summary judgment, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The parties must support their assertions “that a fact cannot be or is genuinely disputed” by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations[], admissions, interrogatory answers, or other materials” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A) & (B).

         If the nonmovant “fails to properly address another party's assertion of fact” as required by Rule 56(c), then the court may “consider the fact undisputed for purposes of the motion” and “grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it.” Fed.R.Civ.P. 56(e)(2) & (3).

         In determining whether a genuine issue for trial exists, the court must view all the evidence in the light most favorable to the nonmovant. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003). Likewise, the reviewing court must draw all justifiable inferences from the evidence in the nonmoving party's favor. Anderson, 477 U.S. at 255. However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam). Furthermore, “[a] mere ‘scintilla' of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990); see also Anderson, 477 U.S. at 249-50 (“If the evidence [on which the nonmoving party relies] is merely colorable, or is not significantly probative, summary judgment may be granted.”) (internal citations omitted).

         III. STATEMENT OF UNDISPUTED FACTS

         In the court's Order setting guidelines for filing dispositive motions, the parties were directed to confer and agree upon the facts that are uncontested and were further advised that the court would rely upon the parties' representations in its determination of whether there is a genuine issue of material fact. (Doc. 30, ¶ 5.) Defendant presented a detailed statement of undisputed facts. Due to Plaintiff's counsel's scheduled travel plans, the parties were unable to confer and agree upon the uncontested facts before Defendant filed its Motion for Summary Judgment. See Doc. 43, p. 3. However, in his response, Plaintiff identified five individual facts from Defendant's Undisputed Material Facts that he asserts are in dispute. (Doc. 45, pp. 1-7.) After a thorough review of the parties' briefs and evidentiary materials, the undersigned finds that, with the exception of two of the five facts that Plaintiff asserts are in dispute, Defendant's Statement of Undisputed Materials Facts is due to be adopted. Defendant's facts, edited for inclusion of only those facts material to the undersigned's recommendations and to reflect the facts disputed by Plaintiff, are set forth below:

         A. Background Facts - Security at Fort Rucker

         1. On December 17, 2012, Tommie Sherman (born 1954) began employment as a Security Guard with the Fort Rucker Directorate of Emergency Services, Police/Provost Marshall Division.

         2. Sherman's first level supervisor was Lieutenant Gary Allen, Supervisory Security Guard. His second-level supervisor was David Lawson, Deputy Chief of Security Guards. His third level supervisor was Mr. Marvin Brandon, Chief of Security Guards.

         3. Fort Rucker is authorized to have security personnel to cover five gates: Daleville, Ozark, Enterprise, Shell, and Cairnes. The number of authorized security guard positions is based on traffic-flow analysis. Fort Rucker has two additional gates - Faulkner and Newton - which are known as “command” or “convenience” gates and for which it is not allocated additional guards. The Base Commander decides how long and for what hours security personnel man these convenience gates. When Faulkner and Newton are open, they are added to the security guard team rotation. The three main gates (Daleville, Enterprise, and Ozark) are open 24-hours a day and have two 12-hour shifts. Newton and Faulkner were 16-hour shifts running on two 8-hour shifts Monday through Friday when Sherman was employed at Fort Rucker. Newton is now a 5-hour gate.

         4. Security at Fort Rucker must comply with Army Regulation 525-13, relating to random anti-terrorism measures. The purpose of the program is to ensure that terrorists cannot easily discern security patterns or routines and find a way to infiltrate facilities. This regulation provides that Random Antiterrorism Measures (“RAM”) must be “conducted as an integral part of all AT programs. RAM is particularly important for our units, installations, [and] facilities … due to the static nature of our forces, and missions often result in the establishment of identifiable routines.” The regulation directs that “Commanders will employ RAM … in a manner that portrays a robust, highly visible, and unpredictable security posture from which terrorists cannot easily discern security AT patterns or routines.” Furthermore, the regulation directs that “[t]o maximize effectiveness and deterrence value, commanders should implement RAM without set pattern, either in terms of measures selected, time, place, or other variables.”

         5. Security guards at Fort Rucker are assigned to teams reporting directly to a lieutenant, and the teams rotate between the gates every few months. In addition to rotating among the gates, guards also rotate shifts. Guards would work a schedule where they may work three days, be off four days, work two days, be off three days, and work two days. Guards had to be able to work 8 hour shifts, 12 hour shifts, day shifts, and night shifts. The 12-hour shifts were actually 13 hours because the guards had to get ready before the shift and debrief at the end of the shift. There are no guards permanently assigned to just one gate and one shift.^[1]

         6. Security Guards at Fort Rucker have no set or scheduled meal times during their shifts. Security guards are not given unpaid lunches or breaks. They provide security during their entire shift. Guards are expected to eat when the gate traffic and operational tempo permits them to do so. Guards are also instructed to eat out of the public view.

         B. Fort Rucker Security Guard Conditions of Employment Duties

         7. At Fort Rucker, one aspect of RAM is random vehicle inspections conducted by a guard who goes from gate to gate to perform inspections without any given schedule. This RAM patrol was not a permanent position assigned to any one security guard but instead security guards rotated through it as part of their security guard duties.

         8. Army Regulation 190-56, The Army and Civilian Police and Security Program, is a regulation setting forth policies and procedures relating to civilian security guards. It states that all applicants are required to sign a condition of employment statement. In this statement, they must agree to initial and periodic medical evaluations to assess their ability to take a physical agility test (“PAT”) and to perform the essential functions of their security guard positions. They must also agree, among other things, that they have to be able to pass a periodic medical exam and be able to “work shifts, overtime, and weekends, as required.”

         9. Conditions of employment listed in Plaintiff's Position Description include shift work, possible change of shift, fluctuating hours of work, overtime as directed, and recall for periods of emergency overtime. The conditions of employment also included periodic medical exams of physical, emotional, and mental stability, entry level and annual recertification of standard Army physical fitness/agility test, and sufficient physical condition to conduct or assist in searching vehicles and persons and restraining persons. The Position Description further provided that “[l]ong periods of standing, walking and/or agility, dexterity, and strength to pursue and detain uncooperative persons are required.”

         10. In April 2015, a new Position Description for Security Guards was issued because guards began performing National Crime Information Center (NCIC) checks at the Visitor Control Center (VCC) as part of their regular duties. In the new Position Description, Security gate guard duties encompassed 50% of the major duties and VCC duties encompassed 50% of the security guard major duties. The revised Security Guard position description retained the requirement that “[l]ong periods of standing, walking and/or agility, dexterity, and strength to pursue and detain uncooperative persons are required.” It also retained all the Conditions of Employment from the prior Position Description. This revised position description was part of a process that began when an operations order was issued to all military installations regarding NCIC checks.

         11. After NCIC duties were added to the duties of security guards, those security guards with the required NCIC training and access codes rotated between working the NCIC terminal at a VCC and other security guard duties. This meant that security guards continued to rotate shifts and had to work both 8-hour and 12hour shifts. The NCIC duties were part of the security guard duties. There was no separate and permanent NCIC position within the visitor control centers for security guards.

         C. Fort Rucker Security Guard Medical Exams and Standards

         12. Dr. Richard Gilbert, Preventative Medicine Service Physician, was the Occupational Medicine Doctor at Fort Rucker from 2009 until June 2017.

         13. As part of his job, Dr. Gilbert performed a pre-employment examination of Sherman. Sherman revealed to Dr. Gilbert that he had been diagnosed with Type II diabetes and that he controlled it with insulin. Sherman also indicated that he had been a security guard while working for other employers while he had this Type II diabetes.

         14. One of the sections in Army Regulation 190-56 relating to medical exams states that “Diabetes Mellitus could interfere with the performance of essential police and guard functions. Consultation with the attending physician, RMC OM [Regional Medical Command Occupational Medicine] physician, or PHC [Public Health Command] OMC physician is recommended. The examinee's blood glucose should have been under excellent control for an extended period of time and glycosylated hemoglobin should be less than 8.0. The examinee should have … no end organ damage (nephropathy, neuropathy….).” A1C levels generally provide a three to four month picture of a diabetic's blood sugar levels. A diabetic with poorly managed diabetes as shown by high A1C levels has a greater danger of dehydration, which can decrease mental abilities and reduce ability to respond. Pursuant to Army Regulation 1900-56, a security guard had to “maintain mental alertness” and was required to “have the functional ability to respond appropriately to routine and emergency situations” in order to perform the essential security guard duties.

         15. Dr. Gilbert tested Sherman's A1C levels as part of his initial examination. Sherman's A1C when he was hired was 8.4. Dr. Gilbert wrote on his medical notes that - “while his diabetes could be better controlled at present he has been living with this disease for years with close medical follow-up and no physical or lab findings of advanced disease….will follow-up with quarterly HbA1c if hired.” Dr. Gilbert further explained that he had spoken with Sherman, who indicated he understood his diabetes and was seeing a physician, and he wanted to give Sherman the chance to bring his blood sugar levels below 8.0.

         16. Sherman's A1C level was tested on February 7, 2013, and it was 7.6. Dr. Gilbert wrote in his medical records that “diabetes is within security guard standards, needs to keep it under 8.”

         D. The First Time Dr. Gilbert Found Sherman Temporarily Medically Unqualified

         17. On September 11, 2013, Sherman had his blood tested at Dr. Gilbert's office and his A1C level was 9.2. Sherman had his blood tested again on September 24, 2013, and his A1C was 9.1.

         18. When Dr. Gilbert met with Plaintiff on September 24, 2013, Dr. Gilbert found Sherman temporarily medically unqualified to perform the essential job functions for a security guard, including carrying a weapon and standing gate guard duty, because his A1C level exceeded the standards set by Army Regulation 190-56. Other essential functions that Dr. Gilbert found that Sherman could not perform included the six general essential functions in Army Regulation 190-56, including the ability to drag, carry, lift, and/or pull a person to safety; use physical force to detain a subject or prevent unauthorized entry; prolonged standing and/or sustained patrol on foot or in a vehicle; sustained pursuit of suspect on foot; dodging, crawling, climbing, and/or rapid ascent of stairs; and the ability to perform all the above tasks while wearing duty equipment and/or protective gear. Dr. Gilbert wrote in his medical records “DAC security guard not fit at this time to perform gate guard duties or carry a weapon. Hemoglobin A1c is above 8. Will not be allowed to resume these duties until that time … Expect up to 3 months before he will be fit for duty.”

         19. Dr. Gilbert submitted a memorandum to Chief Brandon advising him that Sherman was temporarily unable to perform essential functions of his job and stating that a return to full duty could take up to 90 days.

         20. Chief Brandon then removed Sherman from gate guard duties and temporarily assigned him to administrative/light duty work. Fort Rucker does not have a separate administrative or light duty position for security guards. While on this temporary assignment, Sherman performed whatever work was needed at the time. This included helping train new guards, running errands, and getting supplies. He did not work shifts, and he did not stand gate guard duty. The hours of the administrative ...