United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE
Sanquinette Porterfield's second amended complaint
alleges violations of Title V of the Rehabilitation Act of
1973, 29 U.S.C. § 794 et seq., by her employer,
Defendant Andrew M. Saul,  Commissioner of the Social Security
Administration (“SSA”). (Doc. 39). Specifically,
Porterfield contends she was discriminated against because of
her disability and that Defendant failed to accommodate her.
(Id.). Now before the court is Defendant's motion
for summary judgment. (Doc. 58). The motion has been fully
briefed (docs. 59, 63, 64), and is now ripe for decision.
After a review of the briefs and evidence, the court
concludes that the motion is due to be granted in full.
SUMMARY JUDGMENT STANDARD
of the Federal Rules of Civil Procedure provides that a court
“shall grant summary judgment 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(a). The party moving for summary judgment
“always bears the initial responsibility of informing
the district court of the basis for its motion, ”
relying on submissions “which it believes demonstrate
the absence of a genuine issue of material fact.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
see also Clark v. Coats & Clark, Inc., 929 F.2d
604, 608 (11th Cir. 1991); Adickes v. S.H. Kress &
Co., 398 U.S. 144 (1970). Once the moving party has met
its burden, the nonmoving party must “go beyond the
pleadings” and show that there is a genuine issue for
trial. Celotex Corp., 477 U.S. at 324.
summary judgment, a court views the evidence in the light
most favorable to the non-movant. Stewart v. Booker T.
Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000). The
court must credit the evidence of the non-movant and draw all
justifiable inferences in the non-movant's favor.
Id. Inferences in favor of the non-movant are not
unqualified, however. “[A]n inference is not reasonable
if it is only a guess or a possibility, for such an inference
is not based on the evidence, but is pure conjecture and
speculation.” Daniels v. Twin Oaks Nursing
Home, 692 F.2d 1321, 1324 (11th Cir. 1983) (alteration
supplied). At summary judgment, “the judge's
function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
STATEMENT OF FACTS
began her employment with SSA in 2007. (Doc. 58-1
(“Porterfield Dep.”) at 18). During the relevant
time period, Plaintiff worked as a Teleservice
Representative/Customer Service Representative in the
TeleService Center. (Id. at 21, 25). In her
position, Plaintiff answered telephone calls from the public.
(Doc. 58-2 (“Green Dep.”) at 17-18). Her
supervisor was George Green during the times relevant to this
suffers from migraine headaches. She made Defendant aware of
her migraines before the events surrounding this lawsuit. She
gave Defendant a letter dated May 19, 2014, from her
Mrs. Porterfield is being treated in my office for chronic
daily headaches and migraines, these are chronic life-long
conditions. Migraines are unpredictable and may flare up from
time to time. If the migraines cannot be controlled with the
patient[']s medications she may be absent from work.
(Doc. 58-1 at 45). At some point, at the request of
Plaintiff, Defendant purchased a special computer screen to
help prevent Plaintiff from getting a migraine from her
computer at work. (Porterfield Dep. at 87). Additionally,
Plaintiff routinely took leave when her medication did not
manage her migraines. Defendant never refused Plaintiff leave
and designated the leave for her headaches as FMLA leave.
(Porterfield Dep. at 71, 72-73, 106).
a number of different types of leave, including annual leave,
sick leave, and leave without pay (“LWOP”).
Annual and sick leave are paid leave of absences that are
accrued as the employee works. (Porterfield Dep. at 33-34).
Annual leave may be used for “anything [the employee]
wants to use it for, ” such as vacations, rest and
relaxation, or any other personal reason. (Porterfield Dep.
at 33; Doc. 62-2 (“Time and Leave Policy”) at 1).
Annual leave must be approved in advance and all accrued
leave must be used within a year or it is lost. (Time and
Leave Policy at 1). Sick leave may be used for personal
illness, medical treatment or surgery, incapacity due to
pregnancy, contagious disease of a family member requiring
care, and the like. (Time and Leave Policy at 6). Employees
must provide documentation of any sick leave exceeding three
consecutive workdays. (Id.). Employees may also take
advanced paid annual leave and advanced paid sick leave, up
to a certain amount,  but the employee had to pay the SSA back
through work within a year. (See Porterfield Dep. at
34-35; Time and Leave Policy at 8).
may also take LWOP under certain circumstances. Those
circumstances, “consistent with government wide rules
and regulations, ” include: (1) medical treatment for a
disabled veteran; (2) period of service by a reservist or
National Guard member; (3) employee incapacitated from a
job-related injury who is waiting for adjudication of a
workers' compensation claim; and (4) FMLA leave. (Time
and Leave Policy at 10). The LWOP policy states that
“[t]here are no set minimum or maximum amounts of LWOP
that may be granted, ” but “[u]sually no more
than 12 months of LWOP should be approved at one time”
and it “should be granted in the smallest reasonable
amounts according to the individual circumstances, with
additional requests submitted by employees as needed.”
(Doc. 62-14 at 5). Porterfield testified that an employee had
to use all of his or her paid annual leave and paid sick
leave, including advanced annual and sick leave, before the
employee could take LWOP. (Porterfield Dep. at 63-64).
June 9, 2014 Leave Counseling
9, 2014, Green conducted an interview with Plaintiff
regarding her leave situation. (Porterfield Dep. at 92).
Plaintiff testified that Green told her he was “told to
do a leave counseling on [Plaintiff] because [she] had taken
too much leave.” (Id. at 93). Green testified
the counseling was because of “her leave balance”
and “for the leave that she had taken.” (Doc.
58-2 (“Green Dep.”) at 54-55). The “Record
of Interview” states that the purpose of the leave
counseling interview was to “discuss her leave record
and the requirements for requesting and obtaining approved
leave in advance.” (Doc. 58-1 at 41).
“Record of Interview” was written by Green and
contains Green's statements allegedly made to Plaintiff
during the “leave counseling interview, ” as well
as what Plaintiff calls her “rebuttal.” (Doc.
58-1 at 41-44; Porterfield Dep. at 60, 66). Although not
explained to the court by the parties, it appears that
Green's comments are in regular font and
Porterfield's “rebuttal” is in bold on the
document. (See id.). According to the “Record
of Interview, ” Green discussed the following topics
with Plaintiff, in relevant part:
• Plaintiff's negative sick leave balance was 223.5
hours and her annual leave balance was negative 33 hours.
Green said this “leave usage was at a critical stage
and [Plaintiff] needs to make an effort to accrue
leave.” (Doc. 58-1 at 41). Plaintiff does not dispute
her leave balances.
• Plaintiff's “frequent use of leave and the
manner in which she requests sick leave, ” including
“long periods of sick leave over the past nine (9)
months” that had “become a pattern for her since
July 2013.” (Id.). Regarding this alleged
pattern, Plaintiff noted her leave for her workers'
compensation injuries and that she always supplies
documentation when she requests leave. She also noted the
letter from her doctor's office. (Id. at 41-42).
• Porterfield had taken 79.5 hours of advanced annual
leave, with the maximum allowed being 80 hours, and advanced
sick leave could only be granted in cases of serious illness
or injury. (Id. at 41).
• Green explained the process by which Plaintiff should
apply for leave, or call-in for leave if it cannot be
anticipated. (Id. at 42).
• Green discussed the effects of LWOP in that it
“can delay with-in-grade increases and slow the accrual
of leave.” (Id.). He explained that LWOP as
not a right but may be granted only in certain circumstances,
including 12 weeks of FMLA leave. (Id. at 43).
However, specific documentation is required for FMLA leave.
(Id.). Plaintiff disputed this statement,
“because according to the contract she can provide
[Defendant] a letter from [her] doctor that is good for six
months at a time.” (Id.).
testified that Green did not cover all the above with her
during the interview, and that is why “when [she] got
this write-up, [she] didn't agree with it and [she]
rebutted it.” (Porterfield Dep. at 66). She did not
recall whether Green went over her negative leave balances
with her, but she did not dispute that the balances were
correct. (Id. at 61-65). Plaintiff recalled Green
telling her that “they told him that he had to do a
leave counseling” with her and that “he
didn't think that it was fair because [Plaintiff] had
documentation” regarding the reasons for her
leave.” (Id. at 66). Additionally, Green
allegedly told the ...