United States District Court, N.D. Mississippi, Aberdeen Division
OPINION AND ORDER
M. BROWN UNITED STATES DISTRICT JUDGE
employment discrimination action is before the Court on the
City of Tupelo's motion for summary judgment. Doc. #44.
Rule 56 of the Federal Rules of Civil Procedure,
“[s]ummary judgment is proper only when the record
demonstrates that no genuine issue of material fact exists
and the movant is entitled to judgment as a matter of
law.” Luv N' Care, Ltd. v. Groupo Rimar,
844 F.3d 442, 447 (5th Cir. 2016). “A factual issue is
genuine if the evidence is sufficient for a reasonable jury
to return a verdict for the non-moving party, and material if
its resolution could affect the outcome of the action.”
Burton v. Freescale Semiconductor, Inc., 798 F.3d
222, 226 (5th Cir. 2015) (quotation marks omitted). On a
motion for summary judgment, a court must “consider the
evidence in the light most favorable to the nonmoving party
and draw all reasonable inferences in its favor.”
Edwards v. Cont'l Cas. Co., 841 F.3d 360, 363
(5th Cir. 2016).
seeking summary judgment, “[t]he moving party bears the
initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the
record which it believes demonstrate the absence of a genuine
issue of material fact.” Nola Spice Designs, L.L.C.
v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir.
2015) (quotation marks and alterations omitted). If the
moving party satisfies this burden, “the non-moving
party must go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Id.
(quotation marks omitted). “Where the nonmoving party
bears the burden of proof at trial, the moving party
satisfies this initial burden by demonstrating an absence of
evidence to support the nonmoving party's case.”
Celtic Marine Corp. v. James C. Justice Cos., Inc.,
760 F.3d 477, 481 (5th Cir. 2014).
Background and Procedural History
Brandon Garrett's Hire and Health Problems
2003, Brandon Garrett graduated from the University of
Mississippi with a degree in Criminal Justice. Doc. #70-1.
Approximately a year later, on June 15, 2004, Garrett joined
the Tupelo Police Department's Patrol Division. Doc.
#70-2 at 10-11.
March 2006, after about two years in the Patrol Division,
Garrett requested and received a transfer to the Criminal
Investigations Division (“CID”), which operated
out of a building located at 324 Court Street (“324
Building”). Id. at 17, 36. This transfer
resulted in Garrett receiving a change of title from
“Police Officer” to “Detective, ” a
clothing allowance of $75 a month, and a “special
division” pay increase of $100 a month. Id. at
18-19. But for some “personality conflicts” with
some of his supervisors, there were no issues with
Garrett's work performance, and he was eventually
promoted to sergeant in 2013 or 2014. Doc. #70-3 at 11; Doc.
#70-2 at 20-21.
unknown time, the roof of the 324 Building began to leak.
See Doc. #70-2 at 32. The leak was severe enough to
require the CID to place twelve buckets throughout its office
to catch water when it rained. Id. Beyond the leaks,
Garrett observed both an odor and black and green substances
growing in the building. Id.
in 2006, Garrett began taking Zyrtec D “almost every
day” to help him breathe. Doc. #70-2 at 33. Then,
starting in January 2009, Garrett began experiencing
additional respiratory problems, for which he was eventually
prescribed Cefzil. See Doc. #44-2 at 73-79. Over the
ensuing years, Garrett regularly complained of sinus
infections, headaches, coughing, sore throats, congestion,
malaise and fatigue. See generally Doc. #44-2.
Garrett also complained of impotence and irritable bowel
syndrome. Id. at 73-74.
Move from 324 Building
the end of 2014, Garrett noticed that “everybody in the
division was sick, including our captain and lieutenant and
all the way down. We were all sick over and over and over
with repeated sinus infections ….” Doc. #70-2 at
33-34. Accordingly, on or about December 2014, Garrett spoke
with Bart Aguirre, the Chief of Police, regarding mold
exposure. Id. at 32.; Doc. #70-3 at 13-14. After
receiving the complaint, Aguirre contracted with Mold, Inc.
to perform mold testing on the 324 Building, a nearby
building located at 320 Court Street (“320
Building”), and a building located on Front Street
(“Front Street Building”). Id. at 13,
16-18. Mold, Inc. determined there was mold at the 324
Building and the Front Street Building. Id. at 17.
March 2015, Aguirre decided to move the CID to the 320
Building. Id. at 15. Aguirre made this decision
because he wanted to move the detectives to “a more
comfortable work environment that didn't have a mold
issue.” Id. Approximately a month later, in
April, Aguirre moved the CID to a structure located on Lemons
Drive known as the “Airport Building.”
Id. at 15-16. The other units in the department,
with the exception of the Narcotics Division, also made the
move. Doc. #70-2 at 39-40.
part of the move to the Airport Building, Mold, Inc. provided
police personnel a solution to be used to wipe down hard
surfaces or paper products before transfer to the new
facility. Doc. #70-3 at 19-20. The Police Department provided
employees gloves and masks, and each employee was responsible
for wiping down his or her own furniture. Id. The
Street Crime Unit was responsible for physically moving all
items. Doc. #70-2 at 39. However, during the move, Garrett
observed members of the Street Crime Unit moving cabinets
without wiping them down. Id. at 43. It is unclear
who was responsible for wiping down filing cabinets and their
Garrett's Transfer to Patrol Division
March 24, 2015, before the move to the Airport Building was
complete, Garrett presented to Karen Maltby, M.D., at the
North MS Allergy and Asthma Center for an initial visit. Doc.
#44-5. Garrett informed Maltby that “for many
years” he experienced “difficulty with nasal
congestion and drainage, sneezing, postnasal drip” and
that he had been “working in an office with copious
amounts of mold, and has had worsening malaise, neck pain,
fatigue, respiratory infection.” Id. at 1.
Maltby performed skin testing and observed no
“significant sensitivities.” Id. at 3.
one month after his visit with Maltby, Garrett traveled to
MBMC-Baptist Premier for an evaluation of mold exposure by
William Frazier, MD. Doc. #44-6. Garrett informed Frazier
that he had previously experienced “significant
symptoms of fatigue, lethargy, recurrent sinus infection, GI
complaints … and skin rash.” Id. at 1.
Garrett further stated that after the move to the Airport
Building, “most of his symptoms disappeared” but
that “since some of the equipment … has been
moved to the new building, he has noticed a recurrence of
… nasal congestion, neck pain, and general malaise and
fatigue.” Id. At the evaluation, Frazier
observed Garrett had “completely normal”
pulmonary function, a “completely normal” chest
x-ray, and a “completely normal” sinus CT scan.
Id. at 2. Additionally, Frazier found “no
evidence of current pneumonia, sinusitis, or asthma”
and concluded “that at the current time [Garrett] is
exhibiting no symptoms related to mold exposure.”
Id. Ultimately, because Garrett's symptoms
alleviated after removal from the 324 Building, Frazier
recommended that Garrett “stay out of any environment
that has mold because of his reaction to this
after his visit with Frazier, Garrett spoke with Aguirre
about transferring to an instructor position at the police
academy. Doc. #70-3 at 25. Aguirre then instructed Garrett to
submit a written request for transfer. Id.
On April 27, 2015, Garrett wrote to Aguirre and Deputy Chief
Allen Gilbert, stating:
Please accept this letter as my request for a lateral
transfer. I wish to transfer from the Criminal Investigation
Division to the North Mississippi Law Enforcement Training
center. Due to my current health problems revolving around
mold exposure symptoms, I was advised by one of my health
care providers that I should not put myself back into a mold
exposed environment. This is not possible at CID due to
contaminated items being brought into the new Airport
Headquarters. I have already experienced multiple symptoms in
the new facility after our equipment, furniture, and supplies
arrived without proper cleaning and disinfecting. I have
chosen the NMLETC due to all the training and skills I have
developed and specialized in over the past 10 years. I feel
that the department can best utilize those skills in the form
of me teaching fellow law enforcement officers. I also view
this transfer as a change of environment. I feel that a mold
free environment will allow me to better focus on healing and
getting my body back to normal. I have a great passion for
investigations and our investigation division. It brings me
great distress to ask for this transfer. I hope that when I
am healed, I may be given the opportunity to return to
investigations in the future.
Doc. #70-12. After submitting this transfer request, Garrett
“was pulled into” an office with Gilbert and
Captain Jerry Davis. Doc. #70-2 at 81. Gilbert informed
Garrett that the Police Department had “done everything
we can do here; we're going to send you to patrol.”
Id. Garrett told Gilbert that he was not interested
in going to patrol or losing his job with the CID.
to Garrett, there was a PT instructor position available at
the academy. Doc. #70-3 at 25-26. However, the position was
non-supervisory and Aguirre believed that Garrett, a
supervisory officer, would not accept a demotion to accept
the position. Id. Ultimately, Aguirre formally
responded to Garrett's request for a transfer through a
May 8, 2015, memorandum which stated:
I have received your request for lateral transfer from the
Investigation Division to the Training Center. You have cited
as the reason for this request your health condition related
to mold exposure. Before I can review your request, you will
need to process a first report of injury for workman's
compensation purposes if you believe this exposure is
work-related. This will initiate the claims process wherein
you, your treating physician, the department and our
workman's compensation carrier can determine what work
place restrictions you have in order to evaluate temporary or
permanent reassignment to a position, if available, to meet
21, 2015, Garrett presented to Bonnie Baggett, CFNP,
complaining of itchy eyes, nasal congestion, a sore throat,
weakness, and fatigue. Doc. #44-2 at 29. Approximately two
weeks after this visit, on June 2, 2015, Garrett, consistent
with Aguirre's direction, submitted to the City a
completed “Accident Report Form.” Doc. #70-27.
The form listed the “Type of Injury” as
“mold exposure” beginning on March 1, 2006.
Id. In the form, Garrett stated that the City could
have avoided his claimed injury by putting “a new roof
on our building back in the 1990's to avoid years of
days after Garrett submitted the form, he was transferred to
“Charlie Shift” in the Patrol Division, with such
transfer effective June 8, 2015. Doc. #70-2 at 22; Doc.
#70-14. This move, which did not involve a reduction in rank,
resulted in Garrett losing the clothing and incentive bonuses
provided to members of the CID. Doc. #70-2 at 87.
after Garrett was transferred to the Patrol Division, Aguirre
approved the move of two detectives who had also complained
about mold-Scott Floyd and Nicole Doss-to work in the
building housing the Narcotics Division. Doc. #70-3 at 21-22.
According to Aguirre, Floyd and Doss worked independently to
find a place in the narcotics building, and then asked if
they could work there. Id. at 21-24. Aguirre did not
consider allowing Garrett to move with Floyd and Doss because
Garrett had already transferred out of the CID. Id.
at 22. However, Aguirre conceded that if he had
“thought about it, ” he could have put Garrett
into another building without requiring a transfer.
Id. at 23.
Work on Patrol and Request to Return to CID
the transfer to the Patrol Division occurred in early June,
Garrett went on leave before starting work with the Patrol
Division. Doc. #70-2 at 89-90. On June 24, 2015, Aguirre
notified Garrett by letter that the Police Department
successfully removed the mold from the CID, property room,
and hallways of the Airport Building. Doc. #70-19; Doc. #70-2
began work with the Patrol Division on July 6, 2015. Doc.
#70-2 at 90. When he started, Garrett was forced to undergo
ten weeks of field training under a subordinate officer,
Corporal Foreman. Id. at 97-98. Garrett believes he
was the only sergeant in the Department's history to
undergo this type of training after a transfer to the Patrol
Division. Id. at 98. However, Aguirre testified that
it was “not unusual” to have a sergeant trained
by a corporal. Doc. #70-3 at 69.
approximately a week with the Patrol Division, Garrett wrote
to Aguirre and Gilbert to request a return to the CID because
the since-remediated “contamination was the sole reason
for me submitting the original transfer request.” Doc.
#70-20. Aguirre denied this request because he felt Garrett
was “doing an excellent job” with Patrol and was
concerned about personality problems between Garrett and his
former supervisors in the CID, Lynette Sandlin and Jerry
Davis. Doc. #70-3 at 37.
August 20, 2015, counsel for Garrett wrote to Aguirre and
Mayor Jason Shelton to request that the CID be moved to a new
building. Doc. #70-21. One week after this letter, Davis
issued Garrett a “Documentation Only” write-up
for allegedly misplacing a suicide victim's gun while
Garrett was still with the CID in April 2015. Doc. #70-22.
The document alleged that “Garrett violated established
procedure by not turning evidence into property and
maintaining proper documentation and chain of custody.”
Id. In a written response to the write-up, Garrett
argued that he did not misplace the gun, that he could ...