Killingsworth v. Birmingham Jefferson County Transit Authority

          MEMORANDUM OPINION

          ABDUL K. KALLON, UNITED STATES DISTRICT JUDGE

         Ophelia 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.

         I. STANDARD OF REVIEW

         Under 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).

         The 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).

         At 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)).

         II. FACTUAL BACKGROUND

         This 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.

         Turning 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.

         While 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, ^[1] 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.

         On July 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 2.

         After 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.

         III. ANALYSIS

         As an 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 VII.^[2] The court addresses each of these claims in turn.

         A. Statutory Background

         Killingsworth asserts claims under the ADA, as amended by the ADAAA, ^[3]and 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 ...