United States District Court, N.D. Mississippi, Aberdeen Division
ROBERT EARL SIMMONS, JR. PLAINTIFF
MONROE COUNTY, MISSISSIPPI DEFENDANT
MICHAEL P. MILLS UNITED STATES DISTRICT JUDGE
cause comes before the court on the motion of defendant
Monroe County, Mississippi for summary judgment, pursuant to
Fed.R.Civ.P. 56. Plaintiff Robert Earl Simmons has responded
in opposition to the motion, and the court, having considered
the memoranda and submissions of the parties, concludes that
the motion should be granted in part and denied in part.
is, inter alia, a disability, race and sex
discrimination case arising out of plaintiff's brief
employment at the Monroe County Jail (“the
jail”). Plaintiff is a black male who worked as a
jailer for less than two months in late 2017 and early 2018.
Plaintiff started work on December 21, 2017, and he alleges
that, soon afterwards, he began complaining of an aggravation
of his previously dormant asthma condition, which he asserted
was caused by smoking at the jail. Plaintiff contends that,
notwithstanding the fact that a no-smoking policy already
existed at the jail, defendant refused his request that the
policy be enforced. Plaintiff contends that, as a result of
the aggravation of his asthma, he was repeatedly forced to
miss work and to seek medical attention. Plaintiff further
alleges that, during his employment, he suffered a completely
separate form of unlawful treatment, in the form of racial
and sexual harassment by a co-worker. In particular,
plaintiff alleges that Steve Hankins, a co-worker, repeatedly
called him a “faggot” and “Steve Urkel the
black nerd” and that jail administrators refused to
address this harassment.
notes that, during his brief employment, plaintiff missed
more than ninety-one hours of work, and it contends that this
fact ultimately led to his termination. On February 7, 2018,
Jail Administrator Scotty Clark, and Chief Deputy Curtis
Knight, informed plaintiff that he was being terminated due
to his excessive absenteeism. Feeling aggrieved, Simmons filed
two charges of discrimination with the EEOC, one on February
8, 2018, and one on February 14, 2018, claiming race, sex,
and disability discrimination and retaliation. The EEOC
mailed plaintiff right to sue letters for both charges on
July 31, 2018, and plaintiff filed a Complaint in this court
on October 2, 2018. Defendant has presently moved for summary
judgment, arguing that no genuine issue of fact exists
regarding its potential liability in this case and that it is
entitled to judgment as a matter of law.
court considers first defendant's motion to dismiss
plaintiff's claims under the Americans With Disabilities
Act (ADA). In seeking dismissal of these claims, defendant
relies primarily upon an argument that plaintiff has failed
to present adequate proof that he suffered from a
“disability” within the meaning of the Act. In
setting forth this argument, defendant faces very
considerable legal headwinds, since 2008 revisions set forth
in the ADA Amendments Act (ADAAA) make it exceedingly easy
for plaintiffs to demonstrate that they are
“disabled” within the meaning of the Act. Prior
to the enactment of the ADAAA, much of the litigation under
the ADA dealt with the issue of whether a particular
plaintiff was “disabled” for purposes of the ADA.
However, Congress made it clear in the ADAAA that “the
definition of disability … shall be construed in favor
of broad coverage of individuals … to the maximum
extent permitted.” 42 U.S.C. §12102(4)(A).
Moreover, while a plaintiff is still required to demonstrate
an “impairment that substantially limits one or more
major life activities of such individual, ” the ADA, as
amended, makes it clear that the “term
‘major' shall not be interpreted strictly to create
a demanding standard for disability.” 29 C.F.R. §
court's view, perhaps the most significant amendment to
the ADA involves the relaxing of the requirements as to
whether an individual is “regarded” as having a
disability under the ADA. This “regarded as”
provision is the third prong of the ADA, which defines a
disability as either: “(A) a physical or mental
impairment that substantially limits one or more of the major
life activities of [an] individual; (B) a record of such an
impairment; or (C) being regarded as having such an
impairment.” Miller v. McHugh, 814 F.Supp.2d
299, 312 (S.D. N.Y. 2011). One commentator has noted
the significance of the amendments to the “regarded
as” prong, writing that:
Under the third “regarded as” prong, a person
does not need to have a disability to be covered if the
employer discriminated against a person for having an actual
or perceived physical or mental impairment. Under the
pre-ADAAA law, plaintiffs had to prove that the employer
thought that the plaintiff met every element of disability
for purposes of the ADA. . . . Suffice to say, the ADAAA
makes the “regarded as” prong not only easier to
understand and prove, but will potentially mean that
“regarded as” liability will play a much larger
role in future ADA litigation.
M. Hirsch, Mastering Employment Discrimination Law,
§ 12.1. It is thus apparent that the ADAAA was
specifically enacted to lessen the plaintiff's burden of
proof on multiple prongs of the Act's
“disability” requirement. Without question, this
fact makes defendant's burden in seeking summary judgment
far more onerous than it would have been under the original
court's view, defendant's attempts to persuade it to
grant summary judgment on the issue of “disability,
” notwithstanding the enactment of the ADAAA, is made
even more difficult by weaknesses in the authority it cites.
In its brief, defendant cites the recent decision of
Jackson v. Oil-Dri Corporation of America, 2018 WL
1996474, at *6 (N.D. Miss. 2018), as an example of a case
where, even after the enactment of the ADAAA, a district
court granted summary judgment based upon inadequate proof of
a disability. In its briefing, however, defendant did not
mention the fact that the dismissal was appealed to the Fifth
Circuit, which “assume[d] without deciding that a
reasonable jury could conclude that Jackson has a disability
under the ADA.” Jackson v. Blue Mountain Production
Company, 761 Fed.Appx. 356, 360 (5th. Cir. 2019). The
Fifth Circuit instead affirmed the district court's
ruling on a completely separate issue, namely based on a
finding that the employer had made reasonable accommodations
for the plaintiff's disability. Id.
far from reassuring this court that it might validly grant
summary judgment on the “disability” prong
notwithstanding the enactment of the ADAAA, Jackson
actually reinforces its hesitance to do so. Clearly, the
Fifth Circuit in Jackson was well aware of the
multiple lenient options granted by the ADAAA for plaintiffs
to prove an actual or perceived disability, and it appears
that it was very much reluctant to conclude as a matter of
law that none of those options might be viable in that case.
This court has a similar reluctance in this case, even though
it does acknowledge that (as in Jackson),
Simmons' proof of disability is far from compelling here.
summary judgment stage, this court is required to view the
facts in the light most favorable to plaintiff, as the
non-moving party. Considered in this light, this court will
note some of the facts which, in its view, support allowing a
jury to determine whether plaintiff has met one of the very
lenient options for establishing an actual or perceived
disability under the ADAAA. In his deposition, plaintiff
testified that he complained to jail administrator Scott
Clark on multiple occasions about the smoking at work.
Specifically, plaintiff testified that:
A. This happened several times. And I went to Mr. Scotty
Clark and told him about it.
And he was like, well, who was smoking in my tower? And I
told him who was doing it.
Then he said, well, I'm going to talk to them about it.
And I haven't heard anything else on it.
Q. So you don't know if he talked to them or not?
Q. But you're not saying he didn't talk to them.
A. I'm not for sure.
Q. Okay. So you think -- you said several times somebody was
smoking in the tower and you were there. Are you saying like
A. Probably about at least four or five.
[Depo. at 28].
deposition, plaintiff specifically testified that he
presented his employer with doctor's excuses from work,
and defendant does not dispute that this occurred. Moreover,
while plaintiff conceded that these medical forms did not
specifically state that he suffered from asthma, he insists
that he told his employer that he did, in fact, suffer from
A. No. Well, actually, it was like doctor's excuses that
I got from the doctor's office.
Q. But a doctor's excuse doesn't tell your employer
what is wrong with you, does it?
A. No. Well, I was telling them about the asthma, then I gave
them a medical record showing where I had asthma and what
caused the asthma. Now, he does have medical record on that.
[Depo. at 30]. For its part, defendant denies that plaintiff
told it that he suffered from asthma, and, if a jury
concludes that plaintiff is lying on this issue, then this
will likely be fatal to his ADA claims. At this juncture,
however, this court is required to view the facts in the
light most favorable to plaintiff, as the non-moving party,
and, that being the case, it can not simply assume that he is
lying on this issue.
brief, plaintiff describes his efforts to have defendant
accommodate his disability as follows:
After seeing Dr. Monroe, Simmons brought the doctor's
excuse to his boss, the jail administrator, Scotty Clark.
When Simmons did, he told Scotty Clark about how the smoking
was reactivating his asthma. Simmons also gave Clark medical
records that showed he was being treated for asthma by Dr.
Monroe. Scotty Clark never provided Simmons the reasonable
accommodation of enforcing the jail policy concerning tobacco
and stopping Smith and Livingston from smoking in the tower.
Simmons also requested another reasonable accommodation of
moving to another shift where he would not be around the
smoke, but that was denied that as well.
On February 7, 2018, Simmons was called into the office by
Scotty Clark with Tyler Stanford present. Simmons gave Scotty
Clark a copy of his medical report from Merit Health the
previous day where he was treated for an upper respiratory
infection, which obviously affected his breathing. According
to Simmons, when he first got to the office:
[Clark] told me that he was mad that I wasn't there
because I was going to the doctor back and forth. And I told
him that the smoke was making me sick and that's the
reason I had to take off. And if it wasn't for that . . .
I wouldn't have to take off every day. And he kind of got
angry, upset and was like, well, you ought to be here.
[Plaintiff's brief at 7 (record citations omitted).] As
discussed below, this court agrees with plaintiff that
defendant's reliance upon his excessive absences is
problematic as a defense to an ADA claim which is itself
based upon the notion that a failure to accommodate his
disability was making him sick, and thus miss work.
court notes that some support for plaintiff's claim can
be found in the deposition of his treating physician Dr.
Monroe. In his deposition, Dr. Monroe testified that, while
he personally did not diagnose Simmons with asthma, plaintiff
told him that he suffered from the condition and that he
accepted his claim at face value:
Q. So when you saw this patient in 2016, … I believe
you saw him approximately three times. Did you ever,
according to these records, diagnose him with asthma? A. If I
remember correctly, I did not -- other than he made the
statement he had asthma and I trusted his explanation. When
patients come in and they say, I've got a problem, I
believe that's what they got, a problem, and I'll
treat them according to that. If I remember correctly, I did
not see anything or hear anything specifically that gave me
an idea that he had it, but that doesn't mean anything.
When a patient comes in and they've got symptoms,
that's one thing. When they come in and they said they
had symptoms, that's another thing. But they're still
basically treated the same way.
[Dr. Monroe Depo. at 8].
Dr. Monroe's testimony is unhelpful to plaintiff's
claim that he actually suffered from asthma (but does not
directly contradict it), it does tend to support his
assertion that he told his employer that he suffered from the
condition and was therefore “regarded as” having
asthma within the meaning of the ADAAA. That is, the fact
that plaintiff made contemporaneous complaints of suffering
from asthma to his doctor makes it considerably more likely,
in this court's view, that he testified truthfully that
he made the same assertion to his employer. Furthermore, the
undisputed fact that plaintiff repeatedly presented his
employer with doctor's excuses from work may make a jury
more likely to believe his testimony on this issue, even if
the excuses did not specifically state that asthma was the
reason for the absences. Clearly, these medical certificates
suggested that there was some medical basis for
plaintiff's absences, and a jury may regard it as
plausible that plaintiff specifically told his employer about
the exact medical reason he was missing work. Indeed, a jury
may regard it as likely that, in light of his repeated
medical absences, there would have been at least some
discussion between plaintiff and his employer regarding
exactly what the medical reason for his absences was and how
long they were expected to continue. If a jury so concludes,
then it may regard it as plausible that plaintiff would have
told his employer the same thing he told his doctor, namely
that he suffered from asthma.
court wishes to be clear that it does not regard the above
evidence as constituting, by any means, strong proof that
plaintiff suffers from a disability. Indeed, if this court
were considering this issue under the original version of the
ADA, then a dismissal on summary judgment would very likely
be in order. Defendant's problem is that it is seeking
dismissal under an ADAAA in which Congress made a conscious
decision to move away from litigation regarding the
disability issue as a basis for deciding most ADA claims. In
particular, the fact that Congress greatly relaxed the
plaintiff's burden of showing that his employer
regarded him as disabled, even if he was not
actually disabled, makes it very difficult for defendant to
secure summary judgment on this issue. In light of the 2008
amendments to the Act, it seems fair to regard the current
disability standard under the ADA as one of the most
plaintiff-friendly standards in all of federal civil
only is defendant seeking for this court to rule in its favor
on this plaintiff-friendly standard, but it is asking for it
to do so in the context of a summary judgment motion in which
it is required to view the facts in the light most favorable
to plaintiff, as the non-moving party. It does not help that,
in seeking for this court to do so, defendant relies upon a
Jackson decision in which the Fifth Circuit assumed
on appeal that the plaintiff was, in fact, disabled under the
ADAAA. Plaintiff insists that he told Clark that asthma was
the specific medical reason behind his absences, and, that
being the case, this court is not in a position to simply
assume he is lying. Assuming that plaintiff testified
truthfully in this regard, it strikes this court that he has
a reasonable argument that his employer regarded him as
suffering from a disability under the ADAAA. In its motion,
defendant relies upon the affidavits of multiple jail
employees that plaintiff never told them about his asthma,
but it strikes this court that this issue largely involves
the relative credibility of plaintiff and
Clark. Credibility assessments of this nature are
for a jury to make. This court therefore concludes that
triable fact issues exist regarding whether plaintiff can
establish that he met at least one of the definitions for
“disability” under the ADAAA.
court concludes that fact issues exist regarding the
remaining elements of plaintiff's ADA claims as well.
With respect to the issue of reasonable accommodation, this
court regards plaintiff's evidence that the Monroe County
jail had a no-smoking policy as being an indication that, in
allegedly asking defendant to simply enforce a pre-existing
policy, he was seeking a very “reasonable”
accommodation indeed. In its briefing, defendant concentrates
on the second accommodation which plaintiff allegedly
requested, namely to be transferred to a different department
at the jail. Defendant notes that, in his deposition,
plaintiff indicated that this request was made for non-health
reasons, and this court agrees that this testimony serves to
cast significant doubt upon this second alleged accommodation
basis. Even assuming that plaintiff only sought to have
defendant's non-smoking policy enforced, however, then
this would, in the court's view, constitute a legally
cognizable accommodation request under the ADA.
similar analysis applies to defendant's claim that
plaintiff was “unqualified” for his position due
to his inability to show up for work. Plaintiff maintains
that he would, in fact, have been able to show up for work if
he had been offered the reasonable accommodation of having
the jail enforce its existing anti-smoking policies. This
strikes this court as being a reasonable summary judgment
argument, and it therefore concludes that genuine fact issues
exist with regard to this issue as well. Plaintiff's
arguments in this context likewise serve to cast doubt upon
defendant's stated reason for firing him, namely his
excessive absences. Once again, plaintiff's basic point
is that his workplace was making him sick. If defendant had
granted plaintiff his request that the non-smoking policy at
the jail be enforced, and he had continued to miss an
excessive amount of work, then it might well have a
compelling summary judgment argument that it had a valid
reason for firing him. As the facts currently stand, however,
this court is not prepared to rule, as a matter of law, that
plaintiff's health-related absences serve to bar ADA
claims which are themselves based upon an argument that
defendant's failure to accommodate his disability was the
reason for his absences. This court therefore concludes that
genuine fact issues exist regarding each element of
plaintiff's burden of proof on his ADA claim, and
defendant's motion to dismiss that claim will therefore
court now turns to claims asserted by plaintiff in connection
with his allegation that he was racially and sexually
harassed and discriminated against while working at the jail.
Most of these claims require, on summary judgment, the
application of some version of the familiar McDonnell
Douglass burden-shifting framework, but, in the
interests of brevity, this court will simply cite the version
of that test which is applicable to the retaliation claim
which it regards as plaintiff's potentially strongest
claim. To establish a prima facie case of retaliation, a
plaintiff must show “‘(1) he participated in an
activity protected by Title VII [or the ADA]; (2) his
employer took an adverse employment action against him; and
(3) a causal connection exists between the protected activity
and the adverse employment action.'” Dinolfo v.
Home Depot U.S.A., Inc., 2018 U.S. Dist. LEXIS 51324, at
*4 (N.D. Miss. March 28, 2018) (quoting Stringer v. Mound
Bayou Public School District, 2016 U.S. Dist. LEXIS
5530, 2016 WL 183701, *13 (N.D. Miss. Jan. 14, 2016)). Once a
plaintiff makes such a prima facie case, the
defendant is required to present a legitimate,
non-retaliatory reason for firing him, which the plaintiff
may seek to rebut by offering evidence of pretext.
Id. In order to ultimately prevail ...