Opinion
CASE NO. 99-14378-CV-PAINE.
December 28, 2000.
ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is before the court upon the Defendant's Motion for Summary Judgment, filed on or about November 9, 2000 (D.E. #27). Upon review of the motion, the response thereto, and the applicable authority, the court finds that the motion should be granted, in part, as to allegations of wrongful termination, because there exists no issue of material fact that plaintiff was terminated because of alleged impairments. The court additionally finds that the motion should be denied as to allegations of discriminatory harassment.
PROCEDURAL BACKGROUND
Plaintiff, J. Paul West, has filed this action alleging that Defendant, Town of Jupiter Island, harassed and wrongfully terminated him in violation of both federal and state laws because of disabilities including obesity, sleep apnea, slow learning disability, and dyslexia. in his amended complaint, Mr. West has brought counts for disability harassment and wrongful termination under both the Americans with Disabilities Act (ADA), 42 U.S.C. § 101, et. seq., and the Florida Civil Rights Act of 1992 ("FCRA"), Fla. Stat. § § 760.10 et. seq. Plaintiff originally filed a charge of discrimination with the EEOC on June 19, 1997, and later amended the charge on September 14, 1998. Defendant has filed a Motion for Summary Judgment on Mr. West's claims.
SUMMARY JUDGMENT STANDARD
The procedure for disposition of a summary judgment motion is well established. According to the Federal Rules of Civil Procedure, summary judgment is authorized only when:
the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56.
The party moving for summary judgment has the burden of meeting this exacting standard. Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). In applying this standard, theAdickes Court explained that when assessing whether the movant has met this burden, the courts should view the evidence and all factual inferences therefrom in the light most favorable to the party opposing the motion. All reasonable doubts about the facts should be resolved in favor of the non-movant. Id.
The party opposing the motion may not simply rest upon mere allegations or denials of the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the non-moving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir.1981). Summary judgment may be inappropriate even where the parties agree on the basic facts, but disagree about the inferences that should be drawn from these facts.Lighting Fixture Elec. Supply Co. v. Continental Ins. Co., 420 F.2d 1211, 1213 (5th Cir. 1969). If reasonable minds might differ on the inferences arising from undisputed facts, then the court should deny summary judgment. Impossible Electronic Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (5th Cir. 1982). The Court must resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
UNDISPUTED FACTS
1. During his primary and secondary education, Plaintiff was diagnosed and/or treated for slow learning disability and dyslexia.
2. Plaintiff later attended Indian River Community College, where he completed basic police officer courses, making Dean's List on two occasions.
3. In approximately January of 1987, Plaintiff was hired as a police officer/firefighter by the Town of Jupiter Island, the defendant in this action.
4. Defendant, the Town, is an island community located in Martin County, Florida. There are two bridges leading to the Town, a northern bridge and a southern bridge. The Town is eight and a half miles long, north to south, and on average one and a half to one quarter mile wide, east to west.
5. As a police officer, Plaintiff was responsible for responding to emergency calls, interviewing witnesses, preparing written reports of findings, patrolling an assigned zone, keeping a daily log of activities, and, when necessary, making arrests. As a firefighter, Plaintiff drove a fire truck and helped suppress fires.
6. Town police officers work twelve-hour shifts. A shift is comprised of two officers and one sergeant. The Town is divided into two zones, north and south. An officer is assigned to a zone and must stay in the assigned zone unless he is providing backup to the other officer.
7. From 1987-1992, Plaintiff was supervised by Sgt. Raymond Lott. In 1992, Sgt. Lott retired, and by 1993 Sgt. Barry Pawlak became Plaintiff's supervisor.
8. Plaintiffs ten year tenure with the Town was terminated in approximately February 1997.
9. At the time of his termination from the Town, Plaintiff weighed approximately 280 pounds with heavy boots and gun belt, and was six feet tall.
10. Plaintiffs medical records indicate that Plaintiff was "overweight-with heavy boots and gun belt on."
11. While employed with the Town, Plaintiff suffered from sleep apnea, causing him to feel sluggish at the end of the day.
12. As recorded in the school records from the Broward County School Board, Plaintiff suffered from slow learning disability and dyslexia while attending public primary and secondary schools.
13. Plaintiff suspected, based on advice from a medical professional, that he may have had Cushing's Disease. Mr. West was never diagnosed with such disease.
14. Plaintiff's supervisor was aware of Plaintiffs weight problem. Between 1993 and 1996, Sgt. Pawlak commented on Plaintiff's performance evaluation that Plaintiff was "thick waisted," and he "needed to take things off of his gun belt and reduce the bulk on his person."
15. Plaintiff does not recall whether he discussed his condition of sleep apnea with Sgt. Pawlak. Sgt. Pawlak was aware, however, that Plaintiff did have a leave of absence for sinus surgery.
16. Plaintiff never told Sgt. Pawlak that he suffered from slow learning disability. Plaintiff did tell Sgt. Pawlak's predecessor, Sgt. Lott, and a Lieutenant Hester that he had slow learning disability and dyslexia.
17. Plaintiffs claims that he was subjected to a hostile work environment on the basis of his physical and/or medical conditions are based on the following allegations:
(A) Sometime between 1993 and January 1996, Sgt. Pawlak called Plaintiff "fat, stupid, and lazy." Plaintiff does not recall whether there were any witnesses to such statement.
(B) Sometime between 1993 and January 1996, Plaintiff claims that he complained to Chief Curry that Sgt. Pawlak referred to Plaintiff as "stupid" and threw things at him.
(C) On April 11, 1996, Chief William G. Curry allegedly telephoned Plaintiff, who was late for a training course, and said "Get your fat ass out of bed."
(D) Sometime between 1987 and January 1996, Plaintiff found an altered article in his work mailbox that featured a story about a 1000 lb. man. West's name had been exchanged in place of the actual newsmaker's name. Plaintiff also found two advertisements for penile surgery in his work mailbox, although he denies suffering from erectile dysfunction.
(E) The performance evaluations of Plaintiff if conducted by Sgt. Pawlak beginning periodically from May of 1993 through November 1994 indicate Pawlak's concerns regarding Plaintiff's report writing, handwriting, and physical appearance.
(F) In specific performance evaluations of May 4, 1994, and November 8, 1994, Sgt. Pawlak attributes Plaintiff's problems with spelling, punctuation, neatness, and accuracy were due to "lack of concern and education," citing "schooling as a reason for deficiencies."
(G) Sgt. Pawlak recommended as a result of the performance evaluation of May 4, 1994, that Plaintiff enroll in English and composition courses.
(H) Plaintiff twice attempted to enroll in report writing courses, but both classes were cancelled.
(I) Plaintiff believes that the reason he had difficulty completing reports was because his supervisor watched over him. Plaintiff believed that if he had a different supervisor, he would have done better at report writing.
18. Prior to his termination, Plaintiff had been counseled several times for leaving his assigned work zone without authorization.
19. On November 19, 1996, Plaintiff broke a mirror in his patrol car. Town policy required police officers to immediately report damage to vehicles to their supervisor.
20. Rather than report the damage, Plaintiff left his assigned zone, left the Town, and went to a gas station to purchase glue to repair the mirror.
21. After Plaintiff's attempt to repair the mirror was unsuccessful, he called dispatch and reported that he had just broken the mirror and tried to repair it with glue he had on his person. Plaintiff denied leaving his zone to purchase the glue.
22. On December 10, 1996, the Town conducted an administrative hearing. Present at that hearing were Sgt. Pawlak, Sgt. Zabriskie, and Lt. Hester.
23. The panel at the administrative hearing found Plaintiff lied about the time the incident occurred, lied about when he purchased the glue, and lied when he denied leaving the zone without permission.
24. The panel at the administrative hearing recommended Plaintiff's termination. On December 26, 1996, Police Chief William G. Curry asked the town manager to review and approve his recommendation. On December 27, 1996, Chief Curry notified Plaintiff he would recommend termination for cause, effective January 3, 1997. Plaintiff had five days to challenge the recommendation.
25. On January 18, 1997, the town manager notified Plaintiff that he would be recommending that the Town Commission terminate Plaintiff. The Town Commission approved and ratified the decision to terminate Plaintiff on February 12, 1997.
DISCUSSION
This action stems both from the Americans with Disabilities Act (ADA), 42 U.S.C. § 101, et. seq., and the Florida Civil Rights Act of 1992 ("FCRA"), Fla. Stat. § § 760.10, et. seq. In order to establish a prima facie case of discrimination based upon a disability under the ADA, a plaintiff must demonstrate the following three elements:
1. The existence of a disability; 2. Plaintiff's qualification — with or without reasonable accommodation — to perform essential job functions; 3. Adverse employment action against plaintiff because of his disability.See Gordon v. E.L. Hamm Assoc., Inc., 100 F.3d 907, 910 (11th Cir. 1996) (emphasis supplied). The elements are the same under the FCRA. See Smith v. Avatar Properties, Inc., 714 So.2d 1103, 1106 (Fla. 5th DCA 1998). Plaintiff bears the burden of proving his prima facie case by a preponderance of the evidence. See Doe v. Dekalb County School Dist., 145 F.3d 1441, 1445 (11th Cir. 1998).
In Defendant's Motion for Summary Judgment, defendant alleges, inter alia, that plaintiff failed to set forth a prima facie case for employment discrimination because plaintiff failed to demonstrate that his alleged impairments are disabilities within the meaning of the ADA, plaintiff failed to demonstrate he is qualified to perform the job of police officer, and plaintiff failed to demonstrate he was terminated from the Town because of his alleged impairments.
In reviewing the pleadings and depositions on file in the instant case, this court finds that genuine issues of material fact exist as to defendant's allegation regarding whether plaintiff's alleged impairments constitute a disability. Specifically, other courts have found that whether a condition of sleep apnea constitutes a disability under the ADA is a question of fact. See, e.g., Russo v. Jefferson Parish Water Department, 1997 WL 695602 (E.D. La.). Further, courts in this circuit have determined that obesity can be found to be an impairment in limited circumstances. See, e.g., Coleman v. Georgia Power Company, 81 F. Supp.2d 1365, 1369 (N.D. Georgia 2000). Thus, whether plaintiff's conditions of sleep apnea and obesity constitute disabilities protected by the ADA raise questions of fact not to be disposed of by summary judgment in this matter. Further, defendant's allegation that plaintiff failed to demonstrate his qualifications for position of police officer also raises questions of fact.
Defendant's allegation that plaintiff failed to demonstrate he was terminated from the Town because of his impairments has merit. It is an undisputed fact that plaintiff was terminated because of his untruthfulness regarding the November 19, 1996 broken-mirror incident. Such circumstances do not suggest a discriminatory motive for plaintiff's termination of employment with the Town. See generally Leonberger v. Martin Marietta Materials, Inc., 231 F.3d 396 (finding plaintiff's failure to report to work before the expiration of his medical leave with a doctor's release was a valid, nondiscriminatory reason for termination); DeFilipp v. GMRI, Inc., 10 F. Supp.2d 245 (E.D. N Y 1998) (holding termination for making a derogatory comment in front of a customer and then lying about incident to manager did not give rise to inference of discrimination); Brohm v. JH Properties, Inc., 947 F. Supp. 299 (W.D. Kentucky, 1996) (granting summary judgment to employer who fired a doctor for sleeping during surgical procedures, not for his sleep apnea). As the Brohm court stated:
[N]o employer is required to ignore the . . . patently unacceptable behavior of its employees simply because that employee has a disability. An employee may not "boostrap his disease into the line of causation," . . . by showing that the misconduct relied on by the employer would not have occurred "but for" the disability. Brohm v. JH Properties, Inc., 947 F. Supp at 302.
Here, the Town has produced undisputed evidence in support of a legitimate, nondiscriminatory reason in its decision to discharge plaintiff. Plaintiff does not dispute that he lied to his employer regarding the broken mirror and its repair, and acknowledges that his failure to tell the truth resulted in his termination. Thus, plaintiff has not successfully set forth a prima facie case of employment discrimination for wrongful termination based on actual or perceived disabilities. Plaintiffs claims for wrongful termination under both the ADA and FCRA (Counts IV, V, VI, X, XI, and XII) do not raise an issue of fact to survive Defendant's Motion for Summary Judgment. However, since plaintiff has raised genuine issues of material fact regarding defendant's conduct toward plaintiff in the workplace prior to termination, plaintiff's claims for disability harassment remain.
In its motion for summary judgment, the Town also alleges that plaintiff's allegations are untimely, as the alleged harassment occurred more than one year prior to West's filing of an administrative claim of discrimination. In response, plaintiff alleges a continuing violation theory of harassment, which would entitle plaintiff an extension of the time limitation in discrimination actions. In order for this court to properly determine whether the continuing violation exception applies, the court should consider whether the allegations of harassment are related in subject matter, frequency, and permanence. See Roberts v. Gaston Memorial Hospital, 835 F.2d 793, 800 (11th Cir. 1988). This analysis raises questions of fact in the instant case that preclude entry of summary judgment on this basis.
In light of the foregoing, it is hereby
ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment is GRANTED as to all claims regarding wrongful termination under both the ADA and the FCRA [counts IV, V, VI, X, XI, and XII of Plaintiff's Second Amended Complaint (D.E. #19)]. It is further
ORDERED AND ADJUDGED that Defendant's Motion for Summary Judgment is DENIED as to all other claims of discriminatory harassment under both the ADA and FCRA.
DONE AND ORDERED at West Palm Beach, Florida, this 28th day of December, 2000.
JAMES C. PAINE UNITED STATES DISTRICT JUDGE
Copies furnished to: Louis P. Pfeffer, Esq. Christime D. Hanley, Esq.