United States District Court, N.D. Alabama, Southern Division
K. KALLON, UNITED STATES DISTRICT JUDGE
Killingsworth alleges that her former employer, the
Birmingham-Jefferson County Transit Authority
(“BJCTA”), violated Title VII of the Civil Rights
Act, 42 U.S.C. § 2000e et seq, as amended, the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12112(a), as amended by the ADA Amendments Act
of 2008, 42 U.S.C. § 12102 (“ADAAA”), and
the Age Discrimination and Employment Act
(“ADEA”), 29 U.S.C. §§ 621-634. Doc. 1.
Specifically, Killingsworth contends that BJCTA failed to
accommodate her disability, discharged her because of her
gender, disability, and age, and failed to hire her for a
supervisory position because of her gender, disability, and
age. BJCTA has moved for summary judgment, contending that
Killingsworth cannot show a failure to accommodate or
discriminatory treatment based on her discharge and the
failure to hire her as a supervisor. See docs. 32,
33. After reading the briefs, see id.; docs. 37, 38,
reviewing the evidence, and considering the relevant law,
except for the failure to accommodate claim, the court finds
that the motion is due to be granted.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “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. “Rule 56 mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a
party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986) (alteration in original).
moving party bears the initial burden of proving the absence
of a genuine issue of material fact. Id. at 323. The
burden then shifts to the nonmoving party, who is required to
“go beyond the pleadings” to establish that there
is a “genuine issue for trial.” Id. at
324 (internal quotations omitted). A dispute about a material
fact is genuine “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
summary judgment, the court must construe the evidence and
all reasonable inferences arising from it in the light most
favorable to the non-moving party. Adickes v. S. H. Kress
& Co., 398 U.S. 144, 157 (1970); see also
Anderson, 477 U.S. at 255. Any factual disputes will be
resolved in the non-moving party's favor when sufficient
competent evidence supports the non-moving party's
version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002).
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) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th
Cir. 1989)). Moreover, “[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) (citing
Anderson, 477 U.S. at 252)).
case arises from Killingsworth's discharge by BJCTA in
August 2016. Notably, this case comes before the court on a
very sparse record. The court originally provided the parties
until August 30, 2018 to conduct discovery, see doc.
21 at 1, and, on joint motion by the parties, extended the
deadline by two months, see doc. 25 at 1. The day
before the deadline, BJCTA moved to compel Killingsworth, in
part, to sit for a deposition, claiming that counsel for
Killingsworth had not responded to BJCTA's inquiries from
six weeks earlier to provide Killingsworth's availability
for deposition. See doc. 26 at 1-2; 26-2. The court
denied the motion, in light of the previous extension and
BJCTA's failure to show good cause why it waited until
the penultimate day of discovery to raise this issue.
See doc. 27. Consequently, the only testimony before
the court is Killingsworth's written discovery responses,
proffered by BJCTA, see doc. 32-7, and a sworn
declaration, proffered by Killingsworth in response to
BJCTA's motion, see doc. 37-1.
now to the record before the court, the record shows that the
BJCTA hired Killingsworth as a bus operator in October 2000,
doc. 37-1 ¶ 2, and that the terms of her employment were
governed by a Labor Union Contract Agreement (“the
Agreement”), see id. ¶ 7; 33-2. Under the
Agreement, a BJCTA employee with Killingsworth's length
of service could take a leave for personal medical reasons
for a period “not to exceed a total medical leave of
absence of 18 months.” See docs. 33-2 at 3;
37-1 ¶ 7. From May 13 to August 5, 2014, Killingsworth
missed work due to a knee injury she suffered on the job,
see docs. 33-3 at 2-5; 37-1 ¶ 3, and received
worker's compensation during that time, see doc.
37-1 ¶ 3. When Killingsworth returned, BJCTA placed her
on light duty until November 2014 because she was allegedly
suffering from medical issues related to her back.
See docs. 33-3 at 5-6; 37-1 ¶ 5. Then, in March
2015, while performing her duties as a bus driver,
Killingsworth was struck by another vehicle, reinjuring her
back. Doc. 37-1 ¶ 6. BJCTA granted Killingsworth
personal medical leave due to this injury, and she remained
on leave for the next 15 months. Doc. 36-1 ¶ 6.
on medical leave, in July 2016, Killingsworth allegedly
applied for the position of road supervisor/dispatch
supervisor, but BJCTA denied her application although, she
contends, she was qualified for the position. See
docs. 37-1 ¶ 9; 33-7 at 22. BJCTA purportedly informed
Killingsworth that it denied her this position because she
failed a required test. Doc. 37-1 ¶ 9. Furthermore, at
some point while on medical leave,  Killingsworth told BJCTA
Human Resources employee Carvis King that she “needed
to work a class of jobs within the medical restrictions
occasioned by my injuries.” Id. ¶ 11.
Killingsworth also told King that: her injuries limited her
“in the ‘major life activities' of standing,
sitting, reaching, lifting and bending” and “in
the operation of [her] body's neurological and
musculoskeletal functions in that any of the aforementioned
activities caused [her] severe pain, ” id.
¶ 12; she “could not lift, push, pull, assist, and
secure passengers that needed physical assistance or lift
fifty pounds, ” id. ¶ 14; and she
suffered permanent joint and back pain that was exacerbated
when she drove a bus, id. ¶ 13. Finally,
Killingsworth specifically requested a supervisory or other
non-driving position due to her work-related injuries,
id. ¶ 13, and “asked for a reasonable
accommodation because of these health issues, ”
id. ¶ 15.
19, 2016, BJCTA sent Killingsworth a letter stating that her
“15 months of medical which began on April 10, 2015 has
exhausted on July 19, 2016 and you are expected to return to
work immediately.” Doc. 33-4 at 2. However,
Killingsworth did not return to work. See doc. 1
¶ 9; 33 ¶ 6; 37 at 2. Instead, the next day,
Killingsworth's doctor, Emmanuel Odi, wrote a letter to
BJCTA recommending that BJCTA excuse Killingsworth from work
“for an additional month.” See doc. 33-5
at 2. Dr. Odi wrote an additional letter the following month
stating only that Killingsworth “could not return to
work at this time due to ongoing medical issues which have
not improved.” Id. at 3. Five days after Dr.
Odi's second letter, on August 25, 2016, the BJCTA
discharged Killingsworth from her position as a bus operator.
Doc. 37-1 ¶ 17. An internal memo from BJCTA President
James O. Hill to BJCTA Interim Human Resources Director
Michael Simms states that “Ms. Killingsworth's
termination was justified” because she was
“unable to return to her position at the expiration off
[sic] her [medical] leave.” See doc. 33-6 at
her discharge, in December 2016, the Social Security
Administration granted Killingsworth's application for
disability insurance benefits, finding that she had been, and
remained, disabled under the Social Security Act since April
9, 2015. Doc. 33-8 at 5. According to the Administrative Law
Judge (ALJ)'s opinion, Killingsworth's
“impairments collectively precluded her from performing
sustained work related physical and mental activities in a
work setting on a regular and continuous basis, 8 hours per
day, 40 hours per week, or equivalent work schedule . .
.” Doc. 33-8 at 9. The ALJ also concluded that
Killingsworth was “unable to perform any past relevant
work” and that “there are no jobs that exist in
significant numbers in the national economy that
[Killingsworth] can perform.” Id.
initial matter, Killingsworth's pleads several claims
that she has subsequently conceded or abandoned. In her
response to BJCTA's motion, Killingsworth explicitly
conceded her ADEA claims, and her “gender claims as
they relate to all claims except her termination.”
See doc. 37 at 3 n.1. Furthermore,
Killingsworth's responsive brief fails to address her
ADEA discriminatory discharge claim, and her ADEA, ADA, and
Title VII claims for the failure to hire her for the
supervisory position. See doc. 37. “[T]he onus
is upon the parties to formulate arguments; grounds alleged
in the complaint but not relied upon in summary judgment are
deemed abandoned.” Resolution Tr. Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995). Accordingly,
to the extent that Killingsworth did not explicitly concede
these claims, the court finds that she abandoned them.
Killingsworth's remaining claims on summary judgment are
that BJCTA: (1) failed to accommodate her in violation of the
ADA, and (2) discharged her based on her disability and/or
gender in violation of the ADA and/or Title
The court addresses each of these claims in turn.
asserts claims under the ADA, as amended by the ADAAA,
Title VII. Under the ADA, an employer cannot discriminate
“against a qualified individual on the basis of
disability in regard to job application procedures, the
hiring, advancement, or discharge of employees . . .”
42 U.S.C. § 12112(a). Similarly, Title VII makes it
unlawful to, inter alia, “fail or refuse to
hire or to discharge . . . any individual . . . because of
such individual's . . . sex . . .” See 42
U.S.C. § 2000e-2. A plaintiff may establish
discrimination under these statutes, in part, by using
circumstantial evidence of discrimination and relying on the
McDonnell Douglas burden-shifting framework. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir.
2008) (applying the McDonnell Douglas framework to
Title VII claim); Cleveland v. Home Shopping Network,
Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (applying
McDonnell Douglas framework to ADA claim). Under
this framework, once the plaintiff establishes a prima
facie case, a presumption of discrimination arises, and
the burden shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the challenged
conduct. Cleveland, 369 F.3d at 1193. The defendant
“simply ha[s] the burden of production;” it need
not “persuade the court it was motivated by the
[proffered] reason.” Id. (citation omitted);
see Chapman v. Al Transport, 229 F.3d 1012, 1024
(11th Cir. 2000). If the defendant does so, defeating the
presumption of discrimination, the burden then shifts back to
the plaintiff to show the ...