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Kearse v. The Mayor and Aldermen of The City of Savannah

United States District Court, S.D. Georgia, Savannah Division

November 21, 2019

JULIET D. KEARSE, Plaintiff,



         Before the Court is Defendant The Mayor and Aldermen of the City of Savannah's Motion for Summary Judgment. (Doc. 37.) For the following reasons, Defendant's motion is GRANTED.


         In this case, Plaintiff Juliet D. Kearse claims that Defendant discriminated against her when it terminated her employment.[1] Plaintiff worked as a drinking water laboratory analyst for Defendant from November 13, 2006 until February 23, 2011. (Doc. 37, Attach. 1 at 4-5.) Per Plaintiff, the job of drinking water laboratory analyst involved a lot of heavy lifting. (Id. at 5-6.) At the time, there were two other lab analysts and the three lab analysts would take turns working in different sections. (Id. at 6.) One analyst would run the microbiology section, one would run the spectro station, and one would work in titration and then the three analysts would rotate to another section. (Id.) It was important for the analysts to switch around to the other stations. (Id.) The microbiology section "was the really heavy section" where the analyst had to check for chloroform, chlorine residual, bacteria, and other items. (Id. at 5-6.) This section would entail lifting pans of samples, containing forty to fifty bottles of water. (Id.) The titration section also included lifting "a lot of" liter bottles, whereas the spectro station "wasn't really heavy except for the liter bottles we had to lift." (Id.) The lab analysts' job also included driving to different sections of Savannah to test water every week and lifting and loading the water samples into the vehicle. (Id. at 5.)

         On February 25, 2010, Plaintiff discovered a ganglion cyst on her left hand between her wrist and middle finger. (Id. at 12.) Before February 25, 2010, Plaintiff was having problems trying to lift and, when lifting heavy pans into the micro section before the cysts appeared, she felt pain and pulling in her left hand. (Id. at 12; 13.) Plaintiff saw Dr. Stephen Pohl at Immediate Med as a part of the workers' compensation process and understood from him that a ganglion cyst develops through repetitive motion. (Id. at 13.) Dr. Pohl referred Plaintiff to Dr. William Kropp, who removed the cyst during surgery on March 31, 2010. (Id.) Plaintiff was off work for nearly two months after the surgery and returned to work with light duty restrictions from Dr. Kropp, which Defendant accommodated. (Id.) During the light duty period, Plaintiff did not do any sample preparation-rather, she entered laboratory data in a database, typing with one hand. (Doc. 37, Attach. 2 at 11.) As a result of Plaintiff being placed on light duty work, the rest of the staff had to cover Plaintiff's lab analyst work. (Id.) Dr. Kropp released Plaintiff to return to work without restrictions in October 2010 and discharged her from his care. (Doc. 37, Attach. 1 at 16.)

         Plaintiff complained to Dr. Kropp of pain in her neck, arm, and hand, and she understood that he thought she might have a pinched nerve. (Id. at 16.) He sent her to Dr. H. Clark Deriso in October 2010 and Plaintiff understood that Dr. Deriso thought she might have a pinched nerve. (Id.) On November 2, 2010, Plaintiff went to the Candler Hospital emergency room and requested a couple of days off from work and a referral to a neurological doctor. (Id. at 17.) Plaintiff received an excuse for two days off and a referral to Dr. E. Frank Lafranchise of Savannah Neurology Specialists. (Id.) Plaintiff saw Dr. Lafranchise on November 5, 2010 and an EMG nerve conduction test was done on November 16, 2010. (Id.) Plaintiff received a copy of the EMG report of Julia Mikell, M.D., which stated that the nerve conduction studies and needle examination were normal, and "there [was] no EMG evidence of neuropathy or cervical radiculopathy." (Id. at 17-18.) Plaintiff testified that she recalled finding out in November of 2010 that the results of the EMG were normal. (Id. at 18.) Plaintiff obtained a medical excuse from Dr. Mikell, which Plaintiff gave to Defendant, verifying that Plaintiff had been seen on November 16, 2010 and could return to work with no restrictions on November 17, 2010. (Id.)

         On November 30, 2010, Plaintiff saw Wallette Widener, APRN, at Savannah Neurology Specialists. (Id.) Ms. Widener discussed with her the results of the EMG and MRI as well as the fact that Plaintiff could return to work but was advised to avoid operating heavy equipment or lifting any heavy objects until she has completed physical therapy. (Id.) The only report which Plaintiff provided Defendant from this visit was a return to work status form dated November 30, 2010, listing a diagnosis of neck pain, and restricting Plaintiff from lifting and "while attending PT (physical therapy) no driving heavy equipment." (Id. at 19.) The return to work form did not restrict Plaintiff from heavy lifting, it restricted her from lifting. (Id.) Plaintiff admits that lifting and operating heavy equipment are essential functions of her job as a lab analyst. (Id.) After Defendant received these restrictions, Plaintiff was put back on data entry for a brief period of time. (Doc. 37, Attach. 2 at 13.) Defendant also sought to place Plaintiff back into the regular working schedule, limiting the lifting as much as possible. (Id.) Plaintiff continued to say she was not able to perform the duties in that she could not pick up things, she could not lift things, and she could not hold things. (Id.) Plaintiff was asked a couple of times by Mr. Tony Tucker, the laboratory manager, to provide additional information as to the scope of her restrictions. (Doc. 37, Attach. 1 at 20.) In response, Plaintiff told her employer that they could contact her doctor with any questions. (Id.)

         Plaintiff signed a request for FMLA leave and leave was granted effective January 18, 2011. (Id. at 20; 22.) Plaintiff felt that Defendant forced her to sign the FMLA documents and take her remaining leave. (Id.) Plaintiff had previously requested FMLA leave by way of a form dated March 30, 2010 and had used FMLA leave during her workers' compensation leave. (Id. at 28.) On February 8, 2011, Plaintiff was evaluated by Fremont Wirth, M.D. of the Neurological Institute of Savannah as an independent medical examination in her workers' compensation action involving Defendant. (Id. at 23.) In the independent medical evaluation, Dr. Wirth found that Plaintiff's "current level of functional activity appears normal. Her subjective complaints are not substantiated by objective findings and restriction of activities cannot be substantiated." (Id. at 48.) Dr. Wirth also noted that, after reviewing a MRI done at St. Joseph's Hospital, "[t]he changes are minimal degenerative changes and are not unusual in a 44 year old person." (Id. at 51.) According to Plaintiff, she suggested to Heath Lloyd, the then Water Supply and Treatment Director for Defendant, that she be transferred to the office downtown that works with the water part of public works, or the wastewater laboratory. (Doc. 37, Attach. 1 at 25.) Before her injury in February of 2010, she had applied more than once to work at the wastewater laboratory. (Id.) She made inquiries to Lloyd about transfers, however, Plaintiff does not recall ever applying to an open position after February 25, 2010 or specifically requesting to be transferred to an open position. (Id. at 26.)

         Plaintiff admits that Defendant has shown that she was permitted, and did in fact take, her 12 weeks of FMLA leave. (Id. at 28.) Plaintiff received a letter from Rebecca Copeland dated January 14, 2011 indicating that since Plaintiff began to use FMLA benefits on March 21, 2010, as of January 14, 2011, Plaintiff had 3.7 weeks of FMLA benefits remaining. (Id.) Plaintiff next received a letter from Ms. Copeland dated January 31, 2011, indicating, among other things, that Plaintiff's FMLA benefit was approved from January 18, 2011 through February 13, 2011, and that her FMLA balance ended on February 13, 2011. (Id. at 28-29.) Plaintiff did not return to work. She filled out a reguest for special leave without pay for "personal leave" beginning February 14, 2011, the day after her FMLA leave ran out, but this leave was disapproved. (Id. at 29.) Plaintiff did not state that she could have performed all of the essential functions of the job as of the day she requested leave without pay, rather, Plaintiff was under the belief that she was supposed to stay under the restrictions until Dr. Lafranchise saw her again, which had not occurred as of the date of Plaintiffs deposition. (Id.)

         Plaintiff obtained an FMLA Certification of Health Care Provider form from Dr. Kropp on February 14, 2011 but did not see Dr. Kropp in obtaining this form. (Id. at 30; 32.) The form states that Plaintiff was unable to perform the essential function of the job of repetitive movement. (Id. at 30; 54.) Plaintiff states that she does not know whether this statement on the form related to the date of signing the form, February 11, 2011, or to the date that he was treating Plaintiff before she was released to work without restrictions in 2010. (Id. at 32.) However, Plaintiff stated that Dr. Kropp was supposed to be signing the form "for [her] to go back to work." (Id.)

         Plaintiff was terminated on February 23, 2011. (Doc. 37, Attach. 2 at 19.) Plaintiff was terminated because she was unable to perform the job duties and had no leave left. (Id. at 16.) Per Lloyd, Plaintiff had exhausted all leave, and "the process for the organization is if you do not have time, i.e., leave, vacation, leave without pay" then "separation from work is the next part of the process." (Doc. 37, Attach. 3 at 3, 19.) On May 5, 2011, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") dated March 24, 2011. (Doc. 37, Attach. 1 at 30.) After receiving the Notice of Right to Sue, Plaintiff filed an action in Chatham County State Court on February 25, 2013. (Doc. 1 at 15.) The state court action was dismissed without prejudice on April 1, 2013, after which Plaintiff filed this action on April 11, 2013. (Id. at 1.) In her complaint, Plaintiff brings claims for discrimination, retaliation, and interference under the ADA and claims for interference and retaliation in violation of the FMLA. (Id. at 9-11.)

         In Defendant's Motion for Summary Judgment, Defendant argues that Plaintiff s FMLA claims are barred by the two-year statute of limitations. Defendant further argues that, even if Plaintiff's FMLA claims are not barred, the claims nevertheless fail because Plaintiff received twelve weeks of FMLA leave and, therefore, no FMLA right was interfered with and Plaintiff is unable to show that Defendant's legitimate, non-retaliatory reasons for terminating Plaintiff were pretext for retaliating against Plaintiff. (Doc. 37 at 12-16.) In regards to Plaintiff's ADA claims, Defendant contends that Plaintiff was not a qualified individual under the ADA. (Id. at 17-22.) Defendant also argues that Plaintiff's ADA retaliation claim must be dismissed because Plaintiff failed to exhaust her administrative remedies before the EEOC, because the retaliation claim is duplicative of the discrimination claim, and because Plaintiff has failed to rebut Defendant's legitimate, non-retaliatory reason for terminating Plaintiff. (Id. at 20-25.) In the event that the ADA retaliation claim survives, Defendant argues that any claim for monetary damages must be dismissed. (Id. at 25.)



         According to Fed.R.Civ.P. 56(a), "[a] party may move for summary judgment, identifying each claim or defense-or the part of each claim of defense-on which summary judgment is sought." Such a motion must be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. The "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R.Civ.P. 56 advisory committee notes). Summary judgment is appropriate when the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential 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, 322, 10 ...

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