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Garrett v. City of Tupelo

United States District Court, N.D. Mississippi, Aberdeen Division

July 6, 2018

BRANDON GARRETT, PLAINTIFF
v.
CITY OF TUPELO, MISSISSIPPI, DEFENDANT

          OPINION AND ORDER

          DEBRA M. BROWN UNITED STATES DISTRICT JUDGE

         This employment discrimination action is before the Court on the City of Tupelo's motion for summary judgment. Doc. #44.

         I

         Summary Judgment Standard

         Under 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).

         In 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).

         II

         Factual Background and Procedural History

         A. Brandon Garrett's Hire and Health Problems

         In 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.

         In 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.

         At an 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.

         Beginning 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.

         B. Move from 324 Building

         Toward 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.

         In 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.

         As a 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 contents.

         C. Garrett's Transfer to Patrol Division

         On 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.

         Almost 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 exposure.” Id.

         Shortly 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. Id.

         Unknown 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 those restrictions.

Doc. #48-13.

         On May 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 leaks.” Id.

         Six 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.

         Shortly 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.

         D. Work on Patrol and Request to Return to CID

         Although 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 at 90.

         Garrett 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.

         After 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.

         On 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 ...


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