United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT DISTRICT COURT JUDGE.
cause came before the Court on the Motion for Summary
Judgment filed by the Defendant, Vinson Guard Service
(“Vinson”) . Plaintiff has responded ,
and Defendant has replied . 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.
lawsuit was initiated on December 14, 2017. . 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
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.
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.
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.
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. 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.
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.
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.
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 .
Summary Judgment Standard
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