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