United States District Court, M.D. Alabama, Southern Division
ORDER
W.
KEITH WATKINS, UNITED STATES DISTRICT JUDGE
Plaintiff
Tommie Sherman, a former security guard at Fort Rucker, filed
this suit under the Rehabilitation Act (Rehab Act), 29 U.S.C.
§§ 701 et seq., and the Age Discrimination
in Employment Act (ADEA), 29 U.S.C. §§ 621 et
seq., after he was fired from his job. He brings three
claims: (1) disability discrimination under the Rehab Act;
(2) retaliation for requesting a reasonable accommodation
under the Rehab Act; and (3) age discrimination under the
ADEA.
Defendant
Robert M. Speer moved for summary judgment (Doc. # 42), and
the Magistrate Judge recommended that his motion be granted
(Doc. # 55). Plaintiff objected to that Recommendation (Doc.
# 58), and Defendant responded to those objections (Doc. #
59).
Plaintiff
has effectively conceded that summary judgment is due on his
ADEA claim. (See Doc. # 45, at 1; Doc. # 55, at 16.)
Plaintiff also does not object to the Recommendation's
conclusion that summary judgment is due on his retaliation
claim.
Plaintiff's
objections center on the Recommendation's conclusion that
summary judgment should be granted on his disability
discrimination claim. (See Doc. # 58.) After an
independent and de novo review of the record, the
objections, and the Recommendation, the court finds that the
Recommendation is due to be adopted and Defendant's
motion for summary judgment granted.
Plaintiff
first objects to the Recommendation's conclusion that
Plaintiff failed to timely exhaust his administrative
remedies. That objection lacks merit. Plaintiff had 45 days
after denial of his request for accommodation to contact the
Equal Employment Opportunity Office (EEO) to “exhibit
an intent to begin the EEO process.” Murphree v.
Comm'r, 644 Fed.Appx. 962, 966 (11th Cir. 2016)
(quoting Duke v. Slater, EEOC Dec. 01A02129, 2000 WL
732027, at *1 (E.E.O.C. May 22, 2000)). Chief Brandon denied
Plaintiff's requested accommodation on September 14,
2015. The Recommendation found that Plaintiff did not contact
EEO to state his intent to file a complaint until December
18, 2015, well over 45 days later. The record supports this
finding. EEO's notice of accepted claims identified the
date of Plaintiff's initial contact as December 18, 2015.
(Doc. # 44-16, at 2.) December 18 is also the date listed in
Plaintiff's initial EEO complaint as the date of first
contact. (Doc. # 44-7, at 4.) Plaintiff later amended his EEO
complaint to reflect a date of initial contact of September
23, 2015.[1] (Doc. # 44-7, at 8.)
To
dispute the December 18 date, Plaintiff attached some phone
records to his judicial complaint to show that he contacted
EEO on September 23, 2015, just nine days following the
denial of his accommodation requests. (Doc. # 1-1, at 9-13.)
But there is no evidence of the content of those calls. In
fact, Plaintiff could not remember whether he told EEO on
September 23 that he intended to file an EEO complaint. (Doc.
# 44-14, at 7.) Plaintiff's objection on this ground will
be overruled. The Recommendation correctly concluded that
Plaintiff failed to timely exhaust his administrative
remedies by not contacting EEO to express an intent to file a
complaint within 45 days of the denial of his accommodation
request.
Plaintiff
next objects to the Recommendation's conclusion that
Plaintiff's request for reassignment to the Visitor
Control Center (VCC) gate to perform National Crime
Information Center (NCIC) checks was unreasonable because no
such permanent position existed. But none of the facts
Plaintiff cites calls that conclusion into question. It
remains uncontradicted that, because of the random
anti-terrorism measures (RAM) in place at Fort Rucker, there
was no permanent position at the VCC gate performing NCIC
checks.[2] And the Rehab Act “does not require
employers to create new positions for employees with
disabilities.” Boyle v. City of Pell City, 866
F.3d 1280, 1289 (11th Cir. 2017) (citing Sutton v.
Lader, 185 F.3d 1203, 1210-11 (11th Cir. 1999)).
Plaintiff's objection on this point will thus be
overruled. The Recommendation correctly found that
Plaintiff's requested accommodation was unreasonable
because Plaintiff's requested position did not exist.
Finally,
Plaintiff objects to the Magistrate Judge's finding that
Plaintiff could not be accommodated in his current position
because it did not allow for a set meal time each day.
Plaintiff merely references his brief in opposition to
summary judgment and states that Defendant “never
actually undertook the analysis” to determine whether
he could have regular meals in his current position. (Doc. #
58, at 6.) But he cites nothing to contradict the
Recommendation's finding that the Reasonable
Accommodation Committee (RAC) met and discussed
Plaintiff's request, considered Dr. Gilbert's opinion
that Plaintiff needed a position that allowed for a daily set
meal time, and then concluded that Plaintiff's security
guard position did not make such an allowance. (Doc. # 55, at
13-14.) Plaintiff's objection will therefore be
overruled. The Magistrate Judge correctly found that
Plaintiff “could not be accommodated in his current
position because the security guard position did not allow
for a scheduled meal time every day.” (Doc. # 55, at
13-14.)
For
these reasons, Plaintiff's objections will be overruled,
the Recommendation adopted, and summary judgment granted in
Defendant's favor.
It is
ORDERED:
(1) Plaintiff's objections (Doc. # 58) are OVERRULED.
(2) The Magistrate Judge's Recommendation (Doc. # 55) is
ADOPTED.
(3) Defendant's motion for summary judgment (Doc. # 42)
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