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Lewis v. City of Union City

United States Court of Appeals, Eleventh Circuit

December 15, 2017

JACQUELINE LEWIS, Plaintiff - Appellant,
v.
CITY OF UNION CITY, GEORGIA, CHIEF OF POLICE CHARLES ODOM, in his official and individual capacities, Defendants - Appellees.

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:12-cv-04038-RWS

          Before TJOFLAT and ROSENBAUM, Circuit Judges, and Kaplan, [*] District Judge.

          KAPLAN, DISTRICT JUDGE

         Jacqueline Lewis, an African-American police detective in Union City, Georgia, was terminated abruptly from her position after about ten years of service. The ostensible reason was that Ms. Lewis was absent without leave-this notwithstanding that the Union City Police Department ("UCPD") only days earlier had placed her on indefinite administrative leave pending resolution of the question whether she safely could be subjected to a Taser shock as part of a new UCPD training policy.

         Ms. Lewis here contends that her discharge reflected unlawful disability and/or racial or gender discrimination. She seeks back pay, damages, and reinstatement. The matter is before this Court on appeal from the district court's grant of defendants' motion for summary judgment dismissing the complaint. We hold that the evidence raised genuine issues of material fact and therefore reverse.

         I. FACTS

         A. Ms. Lewis's Medical Condition

         Jacqueline Lewis joined the UCPD in 2000 as a patrol officer. She was promoted to detective in 2008.

         In January 2009, Ms. Lewis suffered a small heart attack. The episode was unusual in that a cardiac catheterization showed "no clot and no disease" in Ms. Lewis's heart, although heart attacks generally are caused by a "clot inside the coronary arteries." And while Dr. Arshed Quyyami, a Harvard-trained cardiologist who treated Ms. Lewis at Emory University's cardiology clinic, described the damage to Ms. Lewis's heart as being "miniscule to small, " enzyme levels confirmed the diagnosis of a heart attack. Dr. Quyyami found also that the "global function of the heart was unaffected, " though he noted that people who have had heart attacks tend to be at greater risk for subsequent heart attacks.

         Ms. Lewis's primary care doctor, Dr. Erinn Harris, noted that Ms. Lewis had some residual "mild tricuspid regurgitation" but concluded that this did not have much effect on her bodily function. Ms. Lewis occasionally did complain of paroxysmal nocturnal dyspnea-in other words, shortness of breath while lying down-which, according to Harris "can affect [Lewis's] ability to sleep." Dr. Harris testified, however, that Lewis does not have heart disease that "chronically affects her life." Accordingly, Dr. Harris, following Ms. Lewis's heart incident, cleared her to return to work without any "cardiac restrictions" because there "weren't any blockages to her heart."

         B. UCPD's New Taser Policy

         Prior to 2010, the UCPD allowed officers to choose which non-lethal weapons they carried. The options included oleoresin capsicum ("OC") spray, [1]ASP batons, [2] and Tasers.[3] In early 2010, however, then-Police Chief Charles Odom purchased Tasers for all UCPD officers and required each to carry one.

         Chief Odom testified that he thought Tasers were superior to the ASP baton and OC spray because Tasers would "reduc[e] the risk of injury to officers, suspects, and the public because [a Taser] allows officers to maintain distance from an uncooperative subject when attempting to obtain compliance and effect an arrest." Although the manufacturer, Taser International, does not require trainees to receive a Taser shock to be certified in Taser use, Odom required his officers to receive a five-second shock as part of the Taser training. In moving for summary judgment, he offered five justifications for this requirement:

"assisting [officers] in (1) evaluating the appropriate circumstances under which to deploy the Taser, (2) testifying in Court about the effects of the Taser, (3) knowing that they can go 'hands-on' with an uncooperative subject without being shocked, (4) considering how to defend themselves if threatened with a Taser or similar device, and (5) understanding what it feels like to be shocked by the Taser in the event of an accidental exposure so that they will have confidence in their ability to survive the experience."

         C. Ms. Lewis Is Scheduled for Taser Training

         On June 14, 2010, Ms. Lewis was told to report for Taser training on June 17, 2010. Ms. Lewis was concerned that her prior heart attack might increase her risk of injury from a Taser shock as compared with the average officer. So she saw Dr. Harris, her primary care doctor, on June 15, 2010 to discuss the issue.

         Dr. Harris shared Ms. Lewis's concerns, worrying that the "electrical current . . . could cause undue stress to [Lewis's] . . . heart." Dr. Harris therefore wrote to Chief Odom. Her letter explained that she had been treating Ms. Lewis for "several chronic conditions including a heart condition" and that she "would not recommend that a Taser gun or OC spray be used on or near [Lewis] secondary to her chronic conditions." Dr. Harris urged the department to take this recommendation "into consideration when making any decisions about occupational training."

         D. Union City's Leave Policies

         At this point we turn briefly to Union City's policies with respect to employee leave, as they are essential to understanding events subsequent to Dr. Harris's June 15, 2010 letter.

         The City of Union City's Employee Handbook (the "Handbook"), as revised in March of 2010 and in force at the time of the events of this lawsuit, provided for various types of leaves of absence. Chapter 6, section 1.A, permitted an employee to request an unpaid leave of absence of up to 180 days. Notably, this provision stated also, however, that "[a]n employee may also be placed on leave of absence status without application."

         In addition, Union City had a medical leave policy under the Family and Medical Leave Act ("FMLA"). It provided employees with up to 12 weeks of unpaid leave for, inter alia, a "serious health condition that makes the employee unable to perform the functions of that employee's job." Under the procedures set forth in the Handbook, when the need for medical leave could be anticipated, the employee was required to submit the paperwork thirty days prior to the effective date of the leave. Where such need was unanticipated, however, the Handbook provided no time period within which the paperwork had to be submitted.

         E. Ms. Lewis Placed on Administrative Leave

         On June 17, following Chief Odom's receipt of Dr. Harris's June 15 letter, Assistant Chief Lee Brown notified Ms. Lewis by letter on June 17 that she was being placed on "administrative leave without compensation until such time as your physician releases you to return to full and active duty." He wrote that he took this action due to what he described as Dr. Harris's "instructions [that Lewis] . . . not come into contact with either" a Taser or OC spray, which, Brown wrote, could happen in "a variety of [field] and office settings." The letter told Ms. Lewis to contact Tracie McCord in human resources to complete "the necessary FMLA paperwork concerning your absence." But the letter fixed no time period during which Ms. Lewis was required to be medically cleared to return to full and active duty. Lastly, although the letter said Ms. Lewis was being placed on leave without pay, it gave her the option to use her accrued leave "until the time such leave is expended, " an option that would have permitted her to continue being paid until she exhausted her accrued vacation and sick time. The implication of the letter, a jury might find, was that Ms. Lewis would be on unpaid administrative leave indefinitely, save to the extent she first used her accrued paid leave to continue to receive her salary.

         Ms. Lewis wrote Chief Odom on July 1, 2010, asking permission to resume her duties as a detective, explaining that she was "only asking for an accommodation on the taser [sic] and OC training." She sent Chief Odom a second letter, dated July 1, requesting permission to "seek temporary employment elsewhere while the Union City Police department and my doctor (Dr. Harris) are trying to come to some conclusion on this medical matter." She expressed concern in this second letter that her sick and vacation leave had nearly run out and that she "need[ed] to be able to provide for [her] family."

         Chief Odom directed Assistant Chief Brown to reply to Ms. Lewis, which he did by letter dated July 1, denying her request to return to work. Brown noted first that Lewis was "out of work early in 2009 with what was suspected of being a heart attack, " but that she subsequently received medical clearance to return to work without limitation. Brown then stated that "this changed"-presumably referring to Ms. Lewis's ability to work without limitation-when the department received Dr. Harris's June 15 letter. Brown's letter concluded that, "[b]ased on your current job description, your doctor's letter essentially makes it impossible for you to work or be at work." It denied Ms. Lewis's request to resume her duties "until your doctor releases you for duty." Again, no time frame was fixed for obtaining such a medical release.

         Dr. Harris was on vacation for the first week of July and was unreachable until July 7. Ms. Lewis so informed Assistant Chief Brown on July 2, adding that she had scheduled an appointment for the day of Dr. Harris's return. She asked also for Assistant Chief Brown's cell phone number so Dr. Harris could call him directly.

         Ms. Lewis emailed again on July 6 to remind Assistant Chief Brown that Dr. Harris still was on vacation. He replied that day, providing his office telephone number and instructing Ms. Lewis that Dr. Harris should call him or his assistant to schedule a conversation. He stated also that "[a]s far as your seeking employment outside of the agency after filing for Family and Medical Leave[, which never occurred], it would be, as I understand, illegal for you to be employed elsewhere while you are currently on FMLA Leave with our department." At that time, however, Ms. Lewis was on administrative leave pursuant to Chief Brown's June 17 letter, not FMLA leave. In fact, she had not applied for FMLA leave.

         F. Ms. Lewis Is Terminated

         Chief Odom testified that "I don't want to use the word with 'bated breath, ' but we were waiting for either her doctor's appointment on the Wednesday [July 7] or [to] hear from the doctor on Wednesday or for her to bring us something on Wednesday to say here is where we are at or here is where we need to go or . . . there is some kind of a plan of action here." Dr. Harris in fact attempted to call on July 7, but she did not have the correct phone number. In addition, although Dr. Harris largely filled out the FMLA paperwork on July 7, she did not complete, sign, and send it to the police department until July 12.

         On July 8 at 10 a.m., Assistant Chief Brown terminated Ms. Lewis. He did so without speaking to human resources manager Tracie McCord. Nor did he make any attempt to contact Dr. Harris or to have anyone else from the department contact her. His termination letter stated that Ms. Lewis had been placed on administrative leave without pay on June 17 but had had the option to use her accrued leave until it was exhausted. Brown then stated that her accrued leave was exhausted on July 5, but that he "granted her request" because Ms. Lewis had advised him that Dr. Harris was on vacation until July 7, though it is not clear to what request, if any, this referred. Restating but otherwise ignoring the fact that his June 17 letter had placed Ms. Lewis on administrative leave without pay and imposed no time limits at all, he concluded 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." Although Assistant Chief Brown had told Ms. Lewis one week earlier that she was not permitted to return to work, Chief Odom characterized this as "a situation where an employee has just failed to come to work." Chief Odom acknowledged that he never advised Ms. Lewis that she had to apply for 180 days of unpaid leave under the city's administrative leave policy, although she already had been placed on administrative leave, or warned her that she had to file FMLA paperwork within a certain time frame to avoid being terminated.

         During the afternoon of July 8, after the termination letter already had been sent, Dr. Harris spoke with Assistant Chief Brown. To Dr. Harris's recollection, this conversation was unpleasant and left her "quite offended" because she felt that Assistant Chief Brown "questioned my professionalism and my professional opinion." Brown gave Dr. Harris the impression that he thought "Ms. Lewis was influencing [Harris's] decision to say that [Lewis] should not use the Taser or the pepper spray." Dr. Harris made clear that her opinion was based solely on her professional medical judgment and that she does not "do things because patients tell me to do them." In his deposition, Brown stated that he "would have had a conversation with [Dr. Harris] about reasonable accommodations" if she had called before July 8. But when the questioner pointed out to him that Dr. Harris had been on vacation, Brown responded simply: "According to Jackie [Lewis]."

         By way of summary, it bears pointing out some conclusions a jury reasonably might draw from the preceding evidence. Given the nature of Ms. Lewis's interactions with the UCPD up through July 7, her termination on July 8 is mysterious in an important respect. She had been placed on unpaid, indefinite administrative leave on June 17, at which time she was given the option first to use her accrued vacation and sick time so that she could continue receiving a salary until that leave was exhausted. She never was given any deadlines, nor did any appear in the written city policies, by which she had to obtain medical clearance, file FMLA paperwork, or otherwise resolve the questions about whether she could perform her job duties. She never was transferred from administrative leave to another type of leave. Indeed, at oral argument, defendants conceded that Ms. Lewis was on administrative leave at the moment she was fired-an involuntary, unpaid leave initiated by a supervising officer. They conceded further that inherent (though unarticulated) in the act of firing Ms. Lewis was the act of terminating her administrative leave. Otherwise, there is no plausible way to justify the stated reason for her termination, which was that she was absent without leave. Moreover, Assistant Chief Brown's deposition response to the examiner's suggestion that Dr. Harris had been on vacation-"[a]ccording to Jackie"-might be regarded by a jury as indicating a belief by Brown that Ms. Lewis had lied about Dr. Harris's being away in early July.

         We make no findings of fact here, of course. We are obliged, however, to view the evidence in the light most favorable to the non-moving party, Ms. Lewis, and to draw all reasonable inferences in her favor. We therefore point out that a jury in these circumstances reasonably could find that the stated reason for terminating Ms. Lewis-that she was absent without leave-was a pretext for one or more other motives. And there are several possible alternative motives for which there is some evidentiary support. They include a belief that Ms. Lewis (1) could not properly do her job in consequence of her heart condition, (2) had procured unwarranted support from Dr. Harris in an effort to avoid the Taser test while retaining her job, and (3) had lied about Dr. Harris's unavailability until July 7. We discuss additional possibilities below.

         G. Administrative Appeal

         Lewis appealed her termination to the Union City manager, Steve Rapson. At that hearing, Ms. Lewis was represented by an attorney and given the opportunity to present evidence. However, she did not present evidence regarding whether she may have been entitled to 180 days of unpaid administrative leave or to question whether she had fully exhausted her paid leave. Nor did Mr. Rapson or anyone from the city undertake an independent investigation of that issue. Mr. Rapson ultimately upheld Chief Odom's decision to terminate Ms. Lewis.

         II. PROCEEDINGS BELOW

         Ms. Lewis filed suit in the Northern District of Georgia on November 19, 2012, alleging disability discrimination under the Americans with Disabilities Act and race and gender discrimination under 42 U.S.C. § 1981 and Title VII.

         Defendants moved for summary judgment dismissing all of Ms. Lewis's claims. In opposing the motion, Ms. Lewis pointed to two other Union City police officers as comparators for how she was treated.

         The first was Sergeant Cliff McClure, a white man, who was placed on administrative leave after failing the balance portion of a physical fitness test on April 22, 2014. He was given 90 days of leave to remedy the conditions that caused him to fail the test and to retake it.

         The second comparator was Patrol Officer Walker Heard, a white man who failed a physical fitness test. Heard was placed on leave without pay for 90 days, offered a position as a dispatcher, and ultimately terminated by the department after 449 days on administrative leave. The city notes that Heard filed an EEOC charge against the city during the 90-day leave period and requested that he be exempted from the physical fitness requirements.

         On November 26, 2014, a magistrate judge issued a report and recommendation that recommended granting the defendants' motion for summary judgment in its entirety on the bases that: (1) on her ADA claim, Ms. Lewis had failed to demonstrate a genuine issue of fact that she was a "qualified individual, " thus failing to make out one of the three elements of her prima facie case, and (2) on her race and gender claims, Ms. Lewis's purported white male comparators were not "similarly situated" because they had failed physical fitness tests, not weapons certification tests, and because Ms. Lewis's lead physician had expressed concern about her proximity to Tasers and OC spray. The district court adopted the R&R on March 17, 2015, accepting in all relevant respects the magistrate's reasoning and conclusions. Ms. Lewis appeals from that order and from the judgment entered upon it.

         III. ...


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