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Braswell v. Vinson Guard Service

United States District Court, S.D. Mississippi, Eastern Division

July 8, 2019

BILLY BRASWELL PLAINTIFF
v.
VINSON GUARD SERVICE DEFENDANT

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT DISTRICT COURT JUDGE.

         This cause came before the Court on the Motion for Summary Judgment filed by the Defendant, Vinson Guard Service (“Vinson”) [53]. Plaintiff has responded [56], and Defendant has replied [58]. Having considered the parties' submissions, the record in this matter and the relevant legal authority, and otherwise being duly advised in the premises, the Court finds the motion is well taken and will be granted for the reasons set forth below.

         I. BACKGROUND

         This lawsuit was initiated on December 14, 2017. [1]. On February 20, 2018, Plaintiff filed an Amended Complaint against Vinson alleging a violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., solely for Vinson's alleged failure to provide him with a reasonable accommodation for his disability.[1] [8].

         Vinson is a family owned company that provides security officers to hundreds of clients in a variety of industries, and particularly to Hood Industries, Inc. which owns a lumber yard in Silver Creek, Mississippi known as Miles Lumber. [53-1, 2]. Vinson hired Plaintiff in August 2016 as a security guard/spark watcher at Miles Lumber. [53-3] at pp. 53-54. Plaintiff's job duties included spark watching, patrolling, and performing gate duty. [56-3]; [53-2] at ¶ 5. As a spark watcher on the weekends, Plaintiff was required to maintain a standing post in order to have a 360-degree view of the welders to watch for fire hazards and patrol the area for a minimum of sixty (60) minutes after the work is completed per Miles Lumber's Hot Work Policy. [53-2] at ¶ 5; [53-3] at p. 54; [56-1, 3]. Patrol duty included a forty-five (45) minute patrol round of checkpoints to monitor for hazards. [53-2] at ¶ 5. When on gate duty, Plaintiff would occasionally sit at the entrance gate, in between other duties, such as checking on trucks and deliveries. Id. Plaintiff had worked this same position at Miles Lumber for a different security company years earlier. [53-3] at p. 54. Plaintiff knew spark watching was an important job at the lumber mill. [53-3] at p. 55.

         Plaintiff is a type II diabetic who was diagnosed with diabetic peripheral neuropathy. [56-5]. After three to four weeks on the job, Plaintiff's feet began to hurt badly during his security rounds, but the never told anyone at Vinson. [53-3] at p. 71. On May 13, 2017, he was sitting down while on spark watch duty. [53-3] at p. 72-73. A Miles Lumber supervisor, Keith Brakefield, came by and removed Plaintiff's chair. Id. at 72-74. Plaintiff told Brakefield he was disabled and had been using the chair for nine months. Id. at 74-75.

         On May 17, 2017, Plaintiff met with a Vice President at Miles Lumber, who explained to Plaintiff that he needed to take his complaints to Vinson about his feet hurting and needing to use a chair. [53-3] at pp. 75-76. On May 19, 2017, Plaintiff spoke by telephone with Josh Owens, Plaintiff's direct supervisor at Vinson. Id. at 77-78. Plaintiff told Owens he needed to sit down while he was spark watching. Id. at p. 78. Owens told Plaintiff he needed a note from Plaintiff's doctor. Id. at p. 79.

         After Plaintiff requested to sit down and take breaks, he worked the following days: May 20-22; 26-29; and June 10, 2017. [53-2] at ¶ 9. On May 20 and 21, 2017, Plaintiff worked a half day each day spark watching, and he sat down while doing so with no one saying anything to him. [53-8] at VINSON 00030.[2] On May 22, 26, 28 and 29, Plaintiff worked only patrol duty and gate duty and was allowed to sit down as needed every 45 minutes. [53-2] at ¶ 10. He worked spark watch duty again on May 27, 2017 when he worked part of the day on spark watch while sitting down and also rotated through patrol duty and gate duty for the rest of the day. [53-2]; [53-8] at VINSON 00029. On May 30, 2017, Plaintiff spoke with Owens again, and Plaintiff confirmed that he sat while on spark watch duty on May 27 because he needed to sit when he needed to. [53-8] at VINSON 00029. Owens told Plaintiff he needed to fill out some paperwork and again asked Plaintiff to provide a note from his doctor. Id.

         On May 31, 2017, Plaintiff's medical provider wrote a letter, requesting that Plaintiff be allowed to sit down every 45 minutes or when needed to improve Plaintiff's symptoms related to diabetic peripheral neuropathy. [56-5]. Plaintiff provided the letter to Vinson. [53-3] 80:15-17; 81:15-17. Plaintiff states that on June 2, 2017, Owens called him and told him not to come in to work that night or the weekend, that Vinson was checking with his doctor, and Owens would get back to Plaintiff on Monday, June 5. [53-8] at VINSON 00028. On June 5, 2017, Vinson's Administrative Director wrote to Plaintiff's health care provider, seeking clarification of her May 31, 2017 letter. [53-9]. He outlined Plaintiff's job duties and asked whether Plaintiff was physically able to perform such duties and inquired about her recommendation of allowing Plaintiff to sit every 45 minutes and asked how long she recommended he be allowed sit. Id.

         Plaintiff discussed Vinson's clarification letter with his medical provider-she asked him what kind of clarification Vinson was looking for, but Plaintiff could not tell her. [53-3] 84:11-23. The medical provider never provided this additional information to Vinson. [53-3] 84:24-85:1. Plaintiff told his doctor not to give Vinson any more information in response to their request. [53-3] 85:8-11; [53-10] at p. 2. Even though Vinson never received any additional information, Vinson told Plaintiff they were going to take him off of his spark watching duties to accommodate him, and Plaintiff told the EEOC that. [53-3] 102:7-11. Plaintiff returned to work on June 10, 2019 and was accommodated with sitting breaks, but Plaintiff never returned to work after that day. [56-2]; [53-2] at ¶ 12. Vinson did not fire Plaintiff. [53-2] at ¶ 11; [53-3] 85:12-18. Plaintiff sought other employment about a month after not returning to work at Vinson and was hired at Allied Universal, making more money than at Vinson. [53-3] 86:12-88:17.

         Following two dismissals of his EEOC charges, Plaintiff filed his initial Complaint in this action on December 14, 2017 against Vinson and Miles Lumber, the latter of which was dismissed early on [23].

         II. DISCUSSION

         A. Summary Judgment Standard

         Rule 56 provides that “[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.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “An issue is material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627 F.3d at 138. “An issue is ‘genuine' if the evidence is ...


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