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Toliver v. City of Jacksonville

United States District Court, M.D. Florida, Jacksonville Division

March 31, 2017



          MARCIA MORALES HOWARD United States District Judge

         THIS CAUSE is before the Court on Defendant City of Jacksonville's Dispositive Motion for Summary Judgment (Doc. No. 20; Motion), filed on July 7, 2016. On July 25, 2016, Plaintiff Alphonso Toliver filed his response in opposition to the Motion. See Plaintiff's Response in Opposition to Defendant City of Jacksonville's Motion for Summary Judgment and Incorporated Memorandum of Law (Doc. No. 24; Response).[1] Accordingly, this matter is ripe for review.

         I. Standard of Review

         Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he 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.” Rule 56(a). The record to be considered on a motion for summary judgment may include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Rule 56(c)(1)(A).[2] An issue is genuine when the evidence is such that a reasonable jury could return a verdict in favor of the non-movant. See Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla of evidence in support of the non-moving party's position is insufficient to defeat a motion for summary judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

         The party seeking summary judgment bears the initial burden of demonstrating to the court, by reference to the record, that there are no genuine issues of material fact to be determined at trial. See Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has discharged its burden, the non-moving party must then go beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted). Substantive law determines the materiality of facts, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. In determining whether summary judgment is appropriate, a court “must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) (citing Dibrell Bros. Int'l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571, 1578 (11th Cir. 1994)).

         II. Background[3]

         Plaintiff Alphonso Toliver (Toliver) brings this case against Defendant City of Jacksonville, Florida, (the City) for disability discrimination based on disparate treatment in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 112 Stat. 3353 (2008) (Count I), and the Florida Civil Rights Act (FCRA), Chapter 760, Florida Statutes (Count II). See generally Complaint (Doc. No. 1; Complaint) at 7-11. Toliver also alleges violations of the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq. See id. at 11-14. Specifically, he alleges a claim for interference with his rights under the FMLA (Count III), and an FMLA retaliation claim (Count IV). See id.

         Toliver began his employment as a corrections officer with the Jacksonville Sheriff's Office (JSO), a division of the City, on December 15, 2000. Complaint ¶ 14. Pursuant to JSO's Corrections Officer Physical Abilities Test Policy (City Ex. 6; JSO CO PAT Policy), all corrections personnel are required to maintain “a satisfactory level of health and physical fitness” that is evaluated annually via completion of JSO's Physical Abilities Test (PAT).[4]City Ex. 6. According to the JSO CO PAT Policy, in order to have the opportunity to complete the PAT, a corrections officer must first be cleared to be working at full duty capacity. See id. In other words, a corrections officer may not attempt to complete the PAT if he or she has been placed on temporary limited duty, also referred to as light duty, for any reason. See id. Per JSO's General Order XXI.17(21) (City Ex. 14; Leave Policy), to return to full duty, an employee must obtain a physician's release statement indicating that the employee is cleared to do so. City Ex. 14. According to both the JSO CO PAT Policy and the terms of the City's Collective Bargaining Agreement with the Fraternal Order of Police (City Ex. 8; Collective Bargaining Agreement) - which also applies to corrections officers - failure to complete the PAT within one year of the last successful attempt, after having been given a reasonable opportunity to do so, results in the possibility of removal from one's position as a corrections officer. See City Ex. 6, City Ex. 8. Notably, between 2000 and 2011, Toliver successfully completed the PAT at every required interval. See Office of the Sheriff Consolidated City of Jacksonville Corrections Physical Abilities Test Score Sheets (City Ex. 7).

         On December 18, 2012, Toliver was involved in an automobile accident, resulting in serious injuries to his right leg which required surgery. See Complaint ¶ 16. While recuperating, Toliver successfully submitted a request for FMLA leave commencing on December 18, 2012, and ending on March 12, 2013. See Toliver's FMLA Leave Requests (City Ex. 11; FMLA Leave Request(s)). At the conclusion of his approved FMLA leave, Toliver remained limited in his ability to walk or stand for extended periods of time due to his injuries. Complaint ¶ 17. As a result, following his return from FMLA leave, Toliver requested to be placed on light duty beginning on March 22, 2013. See Toliver's Request for Temporary Medical Limited Duty (City Ex. 12). JSO's Leave Policy defines light duty as a “duty assignment required by a medical . . . impairment that debilitates an employee to such a degree that a treating medical provider states [] that the affected employee can no longer perform the duties required of his job description.” City Ex. 14. For an officer to qualify for light duty, his impairment must be both treatable and of “limited duration, ” or existing for not more than one year. See id. Due to his injuries, Toliver requested an assignment limiting his work-related duties to those that did not involve: (1) prolonged standing; (2) squatting; or (3) lifting more than ten pounds. See Documentation Supporting Light Duty Request (City Ex. 13). JSO granted Toliver's request and assigned him to work regular shifts in the “pod” control room at the City's correctional facility. Complaint ¶ 21. Although control room assignments are allocated among both full and limited-duty corrections officers, JSO traditionally designates this assignment for officers on light duty. See Deposition of Tara Wildes (City Ex. 3; Wildes Dep.) at 9-10. As part of this assignment, JSO required Toliver to visually oversee segments of the inmate population; however, JSO did not permit him to have any direct contact with general population inmates, and did not allow him to leave the control room for any reason.[5] See Deposition of Janice Plucknett (City Ex. 9; Plucknett Dep.) at 120-22.

         On December 18, 2013, Toliver's physician provided the City with a medical update informing his supervisors that Toliver should remain on light duty for an additional three months, and also that Toliver needed to undergo additional surgery to remove a rod from his injured leg. See Medical Update (City Ex. 13). In preparation for this surgery, Toliver submitted an additional successful FMLA Leave Request to commence on January 22, 2014, and end on February 4, 2014. See City Ex. 11. Following his return from FMLA leave, Toliver's physician requested - in a note dated February 27 - that Toliver remain on light duty with the anticipation that he would be cleared to return to full duty by April 22, 2014. See UF Health Doctor's Notes (City Ex. 20; Doctor's Note). In an e-mail dated February 7, 2014, JSO's Occupational Health Manager, Stephanie Harris (Harris), acknowledged another request by Toliver to work no more than five days a week. See Harris E-mail (City Ex. 33). Notably, Harris informed Toliver that if this latter request was denied, then he would be required to utilize his remaining FMLA leave in the event he was scheduled to work more than five days in a given week. See id.

         In March of 2014, Harris notified then-JSO Chief of Personnel Janice Plucknett (Plucknett) that Toliver's one year period of light duty was set to expire around the end of the month, and that he had yet to complete the PAT as required. See Plucknett Dep. at 11-12; 25; see also Limited Duty Spreadsheets (City Ex. 17). In response, Plucknett set a meeting with Toliver on April 4, 2014, to discuss the expiration of his light duty status as well as his potential options moving forward. See Plucknett Dep. at 13-14. Recognizing Toliver's “physical issue, ” see id. at 33-34, Plucknett provided him with a packet of documents containing information which included the City's policy on requesting accommodations under the ADA, see Deposition of Alphonso Toliver (City Ex. 2; Toliver Dep.) at 81-82. In doing so, Plucknett explained to Toliver that he would be unable to remain in the corrections officer position due to having exhausted his one year period of light duty without taking the PAT. See Plucknett Dep. at 119. Plucknett contends that she did not discuss any actual accommodations during this meeting, instead informing Toliver that it was necessary to conduct a skills assessment to determine his qualifications for other positions. See Plucknett Dep. at 113, 118. As such, Plucknett asserts that she never limited the accommodations that Toliver could request other than “explain[ing] to him the accommodations that [she] knew [they] had available that he could potentially be eligible for.” Id. at 22; see also id. at 106; Civil Service Board Hearing Transcript[6] (City Ex. 5; CSB Transcript) at 63. Specifically, Plucknett mentioned that there were open positions as a police services technician and as a police emergency communications officer, both within JSO but outside of the Corrections Department. See Plucknett Dep. at 18.

         According to Toliver, Plucknett told him that the only available accommodations were a select few positions with the City which would have required their own separate applications. See Toliver Dep. at 22-23, 78-79; CSB Transcript at 40. Plucknett also told Toliver that there was no guarantee that he would receive one of these open positions, and that he “had to apply for them like any other job applicant.” Toliver Dep. at 89-90. In discussing these positions, Plucknett further mentioned that they would require Toliver to transfer from the corrections officer pension plan to the general employee pension plan. See CSB Transcript at 63-64. Believing these to be his only options, Toliver was concerned that these positions would offer lower compensation and less favorable retirement benefits. See Toliver Dep. at 21. Indeed, when asked to reflect upon his concerns with transferring to another position, Toliver said, “You lose your pension, you lose your time, you lose basically everything.” CSB Transcript at 25.

         Toliver refused to proceed further with the accommodation process as described by Plucknett. See id. In making this decision, Toliver did not read any of the documents provided by Plucknett, instead relying on “what she actually told [him].” Toliver Dep. at 100. Toliver then drafted a memo addressed to Plucknett entitled “No ADA”, in which he stated, “I [, ] A. Toliver [, ] will not be receiving ADA help. I'm able to do my job and pass the PAT.” Interdepartmental Correspondence (City Ex. 19). Toliver also mentioned that he would return “that [same] day” with a doctor's note authorizing him to return to full duty; however, he did not. Plucknett Dep. at 65. Even so, Plucknett offered Toliver the opportunity to reconsider his decision not to proceed with the accommodation process, giving him until April 18, 2014 to do so. See Plucknett Dep. at 47; City Ex. 16. During this meeting, Plucknett also reviewed Toliver's personnel file and located the Doctor's Note, see City Ex. 20, stating that his return to full duty was anticipated by April 22, 2014. See Plucknett Dep. at 63.

         Following this meeting, Plucknett contacted then-JSO Director of Corrections Tara Wildes (Wildes) and recommended that Toliver be placed on annual leave until the situation was resolved. See Plucknett Dep. at 57; see also Wildes Dep. at 25. Wildes then called Toliver and informed him of his need to take leave, which he did.[7] See Wildes Dep. at 31-32. That same day, Plucknett e-mailed the City's Chief of Employee and Labor Relations, Daniel Rieves (Rieves), to inform him of Toliver's situation. See Deposition of Daniel Rieves (City Ex. 22; Rieves Dep.) at 24-25. In response, Rieves noted that Toliver was anticipating a return to full duty by April 22, 2014; however, Plucknett countered that Toliver had already been on light duty for over a year, and was still “not able to perform the essential functions of his job.” Id. at 27. Significantly, Rieves also recalled Plucknett stating that Toliver would require “additional medical treatment” before being able to return to full duty. Id. Rieves admits that he did not obtain any independent information regarding Toliver's physical condition, instead relying upon the information provided by Plucknett and the JSO. See id. at 12, 28-36. Ultimately, however, the City contends that the decision to terminate Toliver rested with Rieves. See Plucknett Dep. at 75 (Q: “Whose decision was it to terminate Mr. Toliver?” A: “Mr. Rieves.”); Rieves Dep. at 32 (“. . . we operate a little independent [sic], just gathering information from [JSO personnel] to make a decision, an informed decision.”).

         As a result of being placed on leave, Toliver believed he could wait until his scheduled April 22, 2014 office visit to obtain his doctor's authorization to return to full duty. See Toliver Dep. at 85. Then, on April 11, 2014, Toliver met with representatives of the City's Employee Services Department to again determine whether he wanted to participate in the ADA accommodation process. See id. at 104-06. During this meeting, Toliver did not ask about additional options for accommodations, and instead assumed that the representatives were only offering “the same accommodation that Ms. Plucknett had [given him].” Id. at 107. Consequently, Toliver again refused to proceed with the accommodation process. Id. at 107-08. Accordingly, Toliver completed a form entitled “ADA Employee Accommodation Refusal, ” in which he “declin[ed] participation in the ADA Reasonable Accommodation process” for the stated reason that “[he is] not disable[d].” ADA Employee Accommodation Refusal Form (City Ex. 21).

         Not long after, Plucknett received an e-mail from Debra Wood, a colleague of Rieves in the City's Employee and Labor Relations Department, containing a draft of a letter terminating Toliver's employment. See Plucknett Dep. at 70. The e-mail requested that Plucknett provide a specific termination date; however, neither she nor Rieves could recall selecting any particular date. See id. at 71; Rieves Dep. at 34. Although Plucknett could neither explain who selected the ultimate date, nor why it was selected, she did explain that Toliver was not given until April 22, 2014, to obtain his doctor's authorization to take the PAT because - in her experience - employees often underestimate the amount of time they need to return to full duty. See Plucknett Dep. at 66. On April 14, 2014, Plucknett and Wildes met with Toliver to terminate his employment.[8] See id. at 67-69. The termination letter given to him at this meeting stated, in pertinent part, as follows:

As a result of an injury [] you have been unable to perform the duties of your current job classification, Corrections Officer, for more than 12 consecutive months, which is beyond the [] policy limits established by the [JSO] . . . you were afforded the opportunity to seek an ADA accommodation to which you declined on both occasions. Inasmuch as you have chosen not to pursue an ADA accommodation . . . and based upon your continued non-fitness for full duty . . . we are unable to continue your position with the [JSO].

         Notice of Employment Separation (City Ex. 23; Termination Letter). The Termination Letter further provided that Toliver could request a meeting with Rieves within five business days to discuss his termination. Id. Although Rieves signed the letter, he later admitted that he would not have known about Toliver absent the information he received from Plucknett. See Rieves Dep. at 24, 36.

         Toliver never contacted Rieves after receiving the Termination Letter. See Toliver Dep. at 149-150. Additionally, although Toliver did visit his doctor as scheduled on April 22nd, he did not request authorization to return to full duty at that time, reasoning that there was no use since he “was already terminated.” Id. at 151. It was not until July 22, 2014, that Toliver received the medical authorization necessary to take the PAT and return to full duty as a corrections officer. See Medical Authorization (City Ex. 24). Subsequently, on or about August 26, 2014, Toliver filed a charge of disability discrimination with both the Equal Employment Opportunity Commission (EEOC) and the Florida Commission on Human Relations (FCHR). Complaint ¶¶ 9-10. Within ninety days of receiving a Notice of Right to Sue from the EEOC, and after 180 days passed without receiving a determination letter from the FCHR, Toliver filed suit against the City. Id. ¶¶ 11-13.

         Meanwhile, on January 22, 2015, Toliver had his administrative grievance of his April 14, 2014 termination heard before the City's Civil Service Board (CSB). See generally City Ex. 5. The proceedings necessarily addressed many of the same issues that are now before the Court, see id., but mainly focused on Toliver's contention that the City “never directed [him] to attend a review by the City's Medical Review Officer (MRO)” prior to his termination, see Order Denying Grievance (City Ex. 31) at 4. Toliver argued that such a review was mandatory, while JSO countered that Toliver first needed to have his own physician declare him fit to return to full duty before he could be referred for a separate examination by the MRO. Id. Ultimately, the CSB concluded that “the Board's Rules do not require review by a medical officer in every instance, but rather if there are job performance or safety concerns, or if it is ‘necessary' to determine whether an employee ‘continues to be fit for duty.'” Id. at 6. For this reason, the CSB denied Toliver's grievance. See id. at 7.

         III. Discussion

         A. ADA(ADAAA)/FCRA Discrimination Claims

         1. Threshold Issue: Claims Pled

         Pursuant to the ADA, “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment.” 42 U.S.C. § 12112(a). Under the ADA, there are two distinct categories of disability discrimination: (1) disparate treatment and (2) failure to accommodate. See, e.g., Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1261-62 (11th Cir. 2007). In the absence of direct evidence of discrimination, a disparate treatment claim may be evaluated under the McDonnell Douglas burden shifting framework. See generally Jest v. Archbold Med. Ctr., Inc., 561 Fed.Appx. 887, 889 (11th Cir. 2014) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) (additional citations omitted). Under this framework, a qualified employee must first establish a prima facie case of discrimination, at which point the burden shifts to the employer to articulate a “legitimate[, ] non-discriminatory reason” for its action. Id. at 889-90 (citing St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993)). If the employer does so, the employee may still prove disparate treatment by showing that the employer's proffered reason is actually pretext for discrimination. See Richardson v. Honda Mfg. of Ala., LLC, 635 F.Supp.2d 1261, 1278 (N.D. Ala. 2009) (citing Raytheon Co v. Hernandez, 540 U.S. 44, 49 n. 3 (2003)). To prevail on a failure to accommodate claim, in contrast, an employee must identify a reasonable accommodation that would allow that employee to perform the essential functions of the job, after which the employer may rebut the claim by presenting evidence that the requested accommodation would impose an “undue hardship.” See Id. (citations omitted).

         In the instant case, Toliver alleges that the City discriminated against him by “forcing [him] to accept an unreasonable accommodation, terminating his employment, and refusing to reemploy [him], ” all because of his disability. Complaint ¶¶ 49, 53. He further alleges that he was “treated less favorably than similarly situated non-disabled employees, ” and that “any non-discriminatory reason given for treating [him] less favorably than similarly situated non-disabled employees is pretext for unlawful discrimination.” Id. ΒΆΒΆ 54-55. Although these allegations all appear to address a disparate treatment claim, in his Response, Toliver's counsel includes a lengthy argument in support ...

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