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Simmons v. Monroe County

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

November 21, 2019




         This 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.

         This 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.

         Defendant 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.[1] 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.

         This 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. § 1630.2(i)(2).

         In the 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.

         Jeffrey 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 ADA.

         In the 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.

         Thus, 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.

         At the 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?
A. No.
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 two?
A. Probably about at least four or five.

[Depo. at 28].

         In his 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 the condition:

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.

         In his 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.

         This 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].

         While 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.

         This 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 litigation.

         Not 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.[2] 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.

         This 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.[3]

         A 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 be denied.

         This 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 ...

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