Employment Law Daily Jury must decide ADA, Title VII claims of black detective placed on leave, then fired after asking not to be Tasered
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Tuesday, August 20, 2019

Jury must decide ADA, Title VII claims of black detective placed on leave, then fired after asking not to be Tasered

By Kathleen Kapusta, J.D.

The detective was placed on indefinite leave on June 17, informed on July 1 she would not be allowed to return to work until medically cleared, and fired a week later for being absent without leave—despite her request to return to work.

On remand from the en banc Eleventh Circuit, which had vacated it prior opinion, the appeals court panel found that while the evidence before the district court might have yielded any number of conclusions regarding the ADA and Title VII claims of an African-American police detective, who was fired after being placed on administrative leave when she asked to not be exposed to a Taser shock or pepper spray because of a prior heart attack, the ultimate decision in this case should be up to a jury. Reversing in large part the decision of the court below, the panel found the detective raised triable issues as to whether she was regarded as disabled and whether her employer discriminated against her on the basis of her race and gender (Lewis v. City of Union City, Georgia, August 15, 2019, Kaplan, L.).

“Lady” detective. Not long after being promoted to detective, the employee suffered a small heart attack that left her with “mild tricuspid regurgitation,” causing occasional shortness of breath while lying down. After a month of leave, she returned to full duty and was told by her commanding lieutenant that he assigned “children and women crimes” to the “lady” detectives and gave the “more aggressive stuff” to the men.

Administrative leave after accommodation request. The following year, the police chief began requiring officers to carry Tasers and to receive a five-second shock as part of their training. Around the same time, the employee was required to undergo pepper-spray training. Concerned about the effects of both weapons on her heart, she provided a doctor’s note stating that the Taser shock could cause undue stress to her heart and recommending that neither be used on or near her. The assistant chief then placed her on unpaid administrative leave “until such time as your physician releases you to return to full and active duty.” He also told her to contact HR for the necessary FMLA paperwork.

Return to work denied. Explaining that she was only asking for an accommodation on the Taser and pepper spray training, the detective asked to return to duty but was denied. Her request to seek temporary employment elsewhere until everything was settled was also denied by the assistant chief, who told her it was illegal to be employed elsewhere while she was on FMLA leave, even though the detective had not ever applied for FMLA leave.

Terminated because she “just failed to come to work.” In the meantime, the detective scheduled an appointment with her doctor, who had been on vacation, for July 7, the doctor’s first day back. She was terminated, however, the morning of July 8 by the assistant chief, who made no attempt to contact the doctor. Even though she had been placed on indefinite unpaid leave, he wrote in the termination letter that “[b]ecause you have exhausted all of your accrued [paid] leave and have failed to complete and turn in the necessary paperwork to be placed on Family and Medical Leave, your absence is unapproved and you are terminated effective immediately.” And while the chief had a week earlier told her she was not permitted to return to work, he characterized this as “a situation where an employee has just failed to come to work.” Although the detective appealed her termination to the city manager, he upheld the decision after a hearing.

Prior proceedings. She then sued, alleging disability discrimination under the ADA and race and sex discrimination under Section 1981 and Title VII. As to her race and sex bias claims, she pointed to two white male comparators who allegedly were treated more favorably. The district court granted summary judgment against her, but an Eleventh Circuit panel revived her ADA and Title VII claims.

Similarly situated standard. The en banc Eleventh Circuit subsequently vacated the panel decision, holding that the appropriate standard for comparator evidence is whether the proposed comparators are “similarly situated in all material respects.” Applying that standard to the detective’s case, the court found she failed to make out a prima facie case because she and her proffered comparators were not similarly situated; it then remanded to the panel for reconsideration.

ADA impairment vs disability. On remand, the Eleventh Circuit panel accepted arguendo that the detective sufficiently established her heart was physically impaired but agreed with the district court that she failed to show she was actually disabled. While she argued her paroxysmal nocturnal dyspnea substantially limited her major life activities of breathing and sleeping, the only supporting evidence was her own testimony that she had periodic shortness of breath and her doctor’s testimony that that this could, not that it did, affect her ability to sleep. This was not enough, said the court, to raise a triable fact issue.

Regarded as. And while her employer argued that it did not regard the detective as disabled, but rather construed her doctor’s letter as meaning that her “mere presence at work” alone would endanger her, the court explained that even if it could somehow divorce the employer’s placement of the detective on administrative leave and her subsequent termination from any perception or belief that she suffered from a physical impairment, a jury would be entitled to accept her evidence and conclude that the employer placed her on leave and fired her because it regarded her as disabled.

Qualified individual. Also rejected was the employer’s contention that she could not perform the essential function of her detective position, which included being exposed to pepper spray and a Taser shock. Not only did the city’s written job description not mention the need for a detective to carry or be exposed to pepper spray or a Taser shock, there was evidence that detectives previously had been allowed to choose what nonlethal weapon to carry. Further, the Taser manufacturer did not require trainees be shocked to be certified in Taser use. Thus, said the appeals court, disagreeing with the court below, a jury could find that receiving a Taser shock or direct exposure to pepper spray was not an essential function of the job.

Direct threat. As to the direct threat defense, the court pointed out that it requires an analysis of the individual’s ability to safely perform the job’s essential functions. Because it found a fact issue regarding the essential functions of the detective position, it could not resolve the question of whether the detective could perform “those as-yet-undefined” essential functions safely.

Race and gender discrimination. Turning to the detective’s race and sex discrimination claims, the court was bound by the en banc court’s determination that she failed to establish a prima facie case of intentional discrimination under the burden shifting McDonnell Douglas framework because her chosen comparators were not similarly situated in all material respects. This, however, did not doom her claim, said the panel, finding that she presented a mosaic of circumstantial evidence that raised a genuine issue of material fact.

Arbitrary. The city’s actions, said the court, were extraordinarily arbitrary. First, it placed the detective on indefinite leave on June 17, informed her on July 1 she would not be allowed to return to work until medically cleared, and then a week later fired her for being absent without leave despite her request to return to work. Next, it gave her no warning that if she exercised her option to use her accrued leave, she would be terminated upon exhausting that leave instead of reverting to unpaid administrative leave status. Nor did it give her any notice that she had to file FMLA paperwork by any specific day and its FMLA policy did not provide for any such deadline.

In addition, she told the chief on two occasions that her doctor was on vacation until July 7 and she had an appointment scheduled for that day. At no time, said the court, was she told she would be fired if her doctor failed to contact the department on the first day she returned from her vacation. From this evidence, the court noted, a jury could find the city was “searching for a policy to fit its desire to terminate Ms. Lewis rather than neutrally enforcing an existing policy.”

Pretext. The court also found ample evidence of pretext. While the city claimed it fired the detective because her medical condition was permanent, there was evidence suggesting it believed either she was faking her medical condition or that it was not sufficiently serious to prevent her from working as a detective. There was also evidence the chief believed she would be ultimately cleared for duty. This inconsistency in the department’s view of the nature and severity of her condition could be interpreted as evidence that the medical condition was a pretext for her termination.

The department also contended that the detective was fired for being absent without leave because her paid leave had expired and she had not yet filed her FMLA paperwork. However, she had been placed on administrative leave until cleared by her doctor and was fired the morning after her doctor’s appointment—before her supervisors ever spoke to her or her doctor. As for the timeliness of her FMLA paperwork, there was no evidence the department ever set a deadline for filing it and she had been communicating with her superiors the progress in obtaining the paperwork while her doctor was on vacation. Accordingly, a jury could also find pretextual the department’s sudden imposition of the deadline for filing her FMLA paperwork.

Proposed comparators. Further, while the detective’s proposed comparators were not similarly situated, the evidence of their treatment in the face of physical limitations on their ability to perform as police officers was not irrelevant, said the court, noting evidence that three officers—two white men and the detective, an African-American woman—each were required to possess an “essential” physical ability; each either failed a test as to whether the officer possessed the respective physical ability or failed to provide a certificate evidencing the possession of the relevant physical ability; and both white men were given extended periods of time to attempt to demonstrate the physical ability, but the detective was fired without warning.

Plus, while one of the male officers was offered a transfer to a different position, the detective was not offered an alternative assignment and was fired while actively working with her doctor to determine the limits, if any, of her medical condition. The court also pointed to evidence that her lieutenant had stated that he assigned “lady” detectives to “children and women” crimes while assigning the more aggressive stuff to the men, a comment “that suggests unequal treatment of women on the basis of gender.”

City manager. Disagreeing with the dissent’s position that the only person whose conduct was relevant to the detective’s claim was the city manager, the court explained that the fact she appealed her termination decision to him did not create a “blank slate” by which her termination was washed clean of the discriminatory evidence tainting the department. The assistant chief terminated the detective, the court stressed, and her pursuit of an administrative appeal did not break the link of causation from the department’s decision to terminate her. Thus, said the court, the evidence was sufficient to create a triable issue of fact on whether the department’s actions were discriminatory based on race and/or gender.

Dissent. Dissenting in part, Judge Tjoflat argued that the detective failed to prove she was a qualified individual, as her inability to be exposed to a shock or a spray prevented her from working as a police detective. Noting that her doctor stated that neither the shock or spray should be used “on or near” the detective, the judge argued this meant she couldn’t even be exposed to a shock or a spray and thus she could not be in the building at all. Therefore, he believed she was not a qualified individual.

As to her sex/race bias claim, the judge said that the relevant decisionmaker was the city manager, not the chief or anyone at the department. Not only did the city’s employee handbook make clear that city manager was the only person with the power to terminate the detective, she received an in-person hearing before him, the chief, assistant chief, and HR manager were present, and she was represented by a lawyer. Further, the dissenting judge asserted, the evidence indicated the city manager’s decision was completely independent of the department’s decision and therefore untainted.

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