United States District Court, M.D. Florida, Jacksonville Division
MORALES HOWARD United States District Judge
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). Accordingly, this matter is ripe for
Standard of Review
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). 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)).
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)).
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.
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).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.
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. See Deposition of Janice
Plucknett (City Ex. 9; Plucknett Dep.) at 120-22.
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.
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 (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.
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.
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.
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. 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
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).
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. 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].
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.
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.
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.
ADA(ADAAA)/FCRA Discrimination Claims
Threshold Issue: Claims Pled
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).
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.
¶¶ 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