United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
Before the Court are
Plaintiff Richard Samson's Motion for Partial Summary
Judgment (Doc. 40) and Defendant City of Naples' Motion
for Summary Judgment (Doc. 38), along with each party's
response in opposition (Docs. 47; 50). Also, Samson's
Motion to Strike (Doc. 46) and the City's response (Doc.
52) are here. For the following reasons, the Court denies the
an American with Disabilities Act (“ADA”)
disability discrimination case for failure to
hire. Samson is a mechanic with diabetes. And
diabetes makes him disabled under the ADA. When Samson
applied for a position with the City, his disability
disqualified him for the job. Now, he sues the City for
disability discrimination in violation of the ADA and FCRA.
Here are the facts.
looking for a new job, Samson came upon a posting for a City
mechanic. (Doc. 38-6 at 26-27). In terms of mechanical
skills, licensing, and experience, he was qualified in every
way. (Docs. 40-5 at 1; 47-1 at 6). From the posting, nothing
indicated that his physical fitness would be an issue. (Doc.
38-8 at 2). So he applied and interviewed before the City
extended a conditional job offer. (Docs. 38-6 at 6, 33; 40-3
at 1v). Among other things, that offer was contingent on
Samson passing a physical exam. (Doc. 40-3 at 1). When Samson
learned the City required a Department of Transportation
(“DOT”) physical, he knew it was a problem. (Doc.
38-6 at 31-32).
years prior, Samson had issues with a DOT physical for a
different job because he treats his diabetes with insulin.
(Doc. 38-6 at 31-32). This was automatically disqualifying
for the exam, absent an exemption. Samson v. Fed. Express
Corp., 746 F.3d 1196, 1199 (11th Cir. 2014). The DOT
physical was a requirement of obtaining a Class B commercial
driver's license (“CDL”), which City
mechanics must have. (Doc. 38-3 at 14-15, 60). Yet Samson had
a CDL because Florida allowed an exception for diabetics who
drive intrastate. (Doc. 38-6 at 27-28, 36-37). It appears the
City did not know about this exemption, but the City required
passing the DOT exam for all mechanics nonetheless. (Doc.
38-3 at 15, 65-68).
taking the DOT test, Samson spoke to an employee in the
City's human resources department. (Doc. 38-3 at 65-68).
Samson told the employee about the state CDL exemption but
went to the DOT exam anyway. (Docs. 38-3 at 65-66; 38-6 at
52). The DOT exam took place at Advance Medical Center. (Doc.
38-3 at 13, 67). Advance Medical could not medically clear
Samson for the mechanic position because he failed the DOT
exam due to his diabetes and a recent hypoglycemic
episode. (Docs. 38-3 at 13; 38-4 at 3-4; 38-6 at
38; 38-10 at 2). When Advanced Medical told the City Samson
was not cleared, the City rescinded the job offer. (Doc. 38-3
at 13, 65-67; 38-4 at 3-4).
must 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). Disputes are genuine if the evidence
could allow a reasonable jury to return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). And material facts are those
“that might affect the outcome of the suit under the
governing law.” Id. The moving party bears the
burden to show that absence of a material fact and
entitlement to judgment. St. Paul Mercury Ins. v.
F.D.I.C., 774 F.3d 702, 706 (11th Cir. 2014). At this
stage, courts view all facts and draw all reasonable
inferences in a light most favorable to the non-moving party.
Rojas v. Florida, 285 F.3d 1339, 1341-42 (11th Cir.
Samson's Motion to Strike
define the contours of the facts, the Court addresses the
Motion to Strike (Doc. 46) at the start. Samson moves to
strike a declaration by the City's risk manager, Lori
McCullers. (Doc. 46 at 1-2). Samson argues first that the
declaration should be struck because McCullers'
statements are conclusory and not based on personal knowledge
of the mechanic position's essential functions. (Doc. 46
and declarations offered to support summary judgment
“must be made on personal knowledge, set out facts that
would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters
stated.” Fed.R.Civ.P. 56(c)(4). Non-compliant
declarations are vulnerable to motions to strike. See,
e.g., Pashoian v. GTE Directories, 208
F.Supp.2d 1293, 1297 (M.D. Fla. 2002).
has personal knowledge from her role with the City: “As
Risk Manager, I am familiar with the job description and
functions of the mechanic position.” (Doc. 38-4 at 2).
The Court can conclude she knows that the job requires
mechanics to drive. See, e.g., Reyes v. AT&T
Mobility Servs. LLC, 759 F.Supp.2d 1328, 1334 (S.D. Fla.
2010) (It was “reasonable to assume” that
employees knew what coworkers “did during the normal
course of their employment.”). And McCullers stated
that she dealt with the City's policy on the DOT exam,
that policy directed action for DOT test failures, and that
this action was taken for safety sensitive positions.
See (Doc. 46-1 at 3, 5, 7). From this, the Court can
reasonably conclude that McCullers had sufficient personal
knowledge to declare the DOT test policy was for
“safely meet[ing] the job's essential driving
requirements.” (Doc. 38-4 at 3); see also
Walters v. Cent. Fla. Invs. Inc., No.
6:01CV1390-ORL-JGG, 2006 WL 821858, at *2 (M.D. Fla. Mar. 28,
2006) (“As an employee of [d]efendants, [witness] may
possess personal knowledge regarding [d]efendants' work
policies and, to that extent, he may testify regarding those
policies.”). Thus, the Court finds that McCullers'
declaration is based on personal knowledge.
also argues the declaration contains inadmissible hearsay.
(Doc. 46 at 5). Hearsay is an out of court assertion offered
to prove the truth of the matter asserted. Fed.R.Evid.
801(c). Samson does not identify which part of the
declaration is inadmissible hearsay. Assuming that the
purported hearsay is in the specifically challenged
paragraphs, Samson's argument fails. Each assertion
concerns facts about McCullers' own knowledge, not her
testimony about others' statements. See (Doc.
38-4 at 2-3). Therefore, by definition, they are not hearsay.
See Fed. R. Evid. 801(c)(1). To the extent other
paragraphs of the declaration contain assertions from other
declarants, they are not hearsay either.
the Court denies Samson's Motion to Strike.
The City's Motion for Summary Judgment
the ADA and FCRA, the Amended Complaint asserts two failure
to hire claims. Because the analysis for each claim runs
parallel, the Court addresses them together. E.g.,
Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir.
VII's employment discrimination burden-shifting framework
applies to ADA claims. Earl v. Mervyns, Inc., 207
F.3d 1361, 1365 (11th Cir. 2000). And Samson must prove three
elements for his prima facie case of disability
discrimination: “(1) he is disabled; (2) he is a
qualified individual; and (3) he was subjected to unlawful
discrimination because of his disability.” Holly v.
Clairson Indus., L.L.C., 492 F.3d 1247, 1255-56 (11th
Cir. 2007); see also42 U.S.C. § 12112(a). The
parties agree that Samson is disabled under the ADA. (Docs.
38 at 7; 40 at 7).
City moves for summary judgment on two grounds: (1) Samson
failed to make a prima facie showing that he is a
qualified individual (Doc. 38 at 7-14); and (2) even if he
did, there was a legitimate, non-discriminatory reason for
refusing to hire Samson, and he failed to show that reason
was pretext (Doc. 38 at 14-16). In part, Samson parries that
he was qualified and there is enough pretext evidence to
submit the question to a jury. (Doc. 47 at 9-19).
although the City states Samson “failed to show that he
is a qualified individual who was discriminated against
because of his disability” (Doc. 38 at 7), the motion
only addresses the qualified individual element (Doc. 38 at
7-14). Then, the City contends it had a legitimate,
non-discriminatory reason to rescind the offer. (Doc. 38 at
14-16). As the City notes, legitimate, non-discriminatory
reasons become an issue after a plaintiff makes a
prima facie case. (Doc. 38 at 14); Cleveland v.
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