May v. Special Administrative Board of the School District of the City of Saint Louis

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

NICHOLAS MAY, )

)

Plaintiff, )

)

v. ) No. 4:19CV2329 JCH

)

SPECIAL ADMINISTRATIVE BOARD OF )

THE SCHOOL DISTRICT OF THE CITY )

OF SAINT LOUIS, et al.,1 )

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendants’ Motion for Summary Judgment, filed

April 12, 2021. (ECF No. 53). The motion is fully briefed and ready for disposition.

BACKGROUND

Plaintiff Nicholas May, a Caucasian male, began working for the St. Louis Public School

District in 2001 as a glass worker, or glazier. (FAC, ¶ 21; Defendants’ Statement of

Uncontroverted Material Facts for their Motion for Summary Judgment (“Defendants’ Facts”), ¶

1 In his First Amended Complaint (at times referred to as “FAC”), Plaintiff names as Defendants

the Special Administrative Board of the School District of the City of Saint Louis, a.k.a. Special

Administrative Board of the Transitional School District of the City of Saint Louis, and Saint

Louis Public Schools, a.k.a. Saint Louis Public School District. According to Defendants, at the

time of his termination Plaintiff was employed by the Transitional School District of the City of

St. Louis, which was governed by the Special Administrative Board of the Transitional School

District of the City of St. Louis (the “SAB”). (See Defendants’ Memorandum in Support of their

Motion for Summary Judgment (“Defendants’ Memo in Support”), P. 1 n. 1). On July 1, 2019,

the SAB’s governing authority reverted back to the Board of Education of the City of St. Louis

Public School District (“BOE”), and the official name of Plaintiff’s former employer reverted

back to the City of St. Louis Public School District. (Id.). Defendants maintain that although

Plaintiff identifies the District and its governing Board as separate Defendants, the naming of the

District is redundant and duplicative, as the BOE is the proper Defendant entity. (Id.). For ease

of reference, the Defendants in this matter shall be referred to collectively as the “District” or

“Defendant.”

1). In 2003, Plaintiff’s position was outsourced, but he continued to work for the District as an

employee of a third party contractor. (Defendants’ Facts, ¶ 2). In July, 2011, Plaintiff’s position

was reinstated, and he began working directly for the District as a District employee. (Id., ¶ 3).

In July, 2015, the District’s Maintenance Department issued a Uniform Procedure

Memorandum outlining its expectations for maintenance employees. (Defendants’ Facts, ¶ 4).

The District required that its maintenance workers who travel among the various school

buildings wear a uniform, so that they were easily identifiable as District employees as opposed

to unauthorized individuals.2 (Id., ¶ 6). On August 11, 2015, Plaintiff signed a document

acknowledging that he had received a copy of the Facility Operations Procedures, which

included, among other items, the Uniform Procedure. (See Id., ¶ 7 and Plaintiff’s Response

thereto). In 2016, the District’s Maintenance Department issued another memorandum, which

also included a paragraph expressing the Department’s expectation that maintenance employees

wear the designated uniform. (Id., ¶ 8). Plaintiff signed an acknowledgement of the

memorandum on July 25, 2016, stating that he had read and understood the expectations listed

above, and that his failure to follow those expectations would result in appropriate disciplinary

action up to and including termination. (Id., ¶ 9).

On several occasions in 2016, Plaintiff failed to abide by the Maintenance Department’s

uniform policy. (Defendants’ Facts, ¶ 12). For example, on October 27, 2016, Defendant issued

Plaintiff a verbal warning, documented in an SLPS Accountability Meeting Report, which stated

in relevant part as follows:

On Oct 27, 2016, Nicolas May reported to work wearing jean pants and

not his District provided uniform pants as required. When asked why he

wasn’t wearing his District provided pants, his statement to me was, “they

2 The District has approximately 70 schools and 4,000 employees. (Defendants’ Facts, ¶ 5).

are uncomfortable.”3

On several different occasions, Mr. May was instructed that he must wear

the uniform pants that were issued to him by the District. Failure not to

wear the District provided pants as directed is unacceptable and will not be

tolerated.

(See Defendants’ Exh. F, P. 10). The report informed Plaintiff that the notice contained therein

was provided in order to correct conduct, and that if the conduct was repeated or Plaintiff

engaged in any other undesirable conduct, he would be subject to disciplinary action, up to and

including termination. (Id.).4 Five weeks later, on December 8, 2016, Plaintiff again wore jean

bottoms to work in lieu of his District-issued uniform pants. (Id., P. 3; Defendants’ Exh. G).

Plaintiff responded to this and other allegations of misconduct on December 12, 2016, stating in

relevant part as follows:

The unprofessional manner that is described in allegations above are false

except for the fact that I reported to work wearing a pair of blue jeans that

are the same color (same shade of navy/dark blue) as the Aramark pants

that are issue[d] under a uniform contract. I was wearing my Aramark

supplied, SLPS shirt…I was respectful and professional in my manner

when I told R.J.5 that I needed a larger size pant, since I had gained weight

and the ones that I had been trying to wear no longer fit….I don’t know

why I would have thought such tension might be created by the situation

because (1) other tradepeople wear alternate pants everyday, i.e., painters,

plasterers, electricians and various other[s] that occasionally don’t have

their SLPS pants on, (2) I told Rosmon that I was trying to wear the “too

small pants [but they] were unzipping themselves some without the

bottom being used (this made them somewhat bearable but was a problem

with the zipper), (3) I’ve expressed to Rosmon in the past, the amount of

additional discomfort the pants were giving me due [to] a skin condition

that I have. Their (sic) exists other reasons why the pants are a

3 Plaintiff handwrote the following comment here: “[unintelligible] that I would be wearing a

harness.” (Defendants’ Exh. F, P. 10).

4 Five months earlier, Plaintiff had received a verbal warning for insubordination, following an

incident in which he allegedly became belligerent during a tradesman meeting when the issue of

the uniform requirement arose. (See Defendants’ Exh. F, P. 5).

5 Rosmon Johnson (“Johnson”) was the District’s Maintenance Manager, and supervisor to

Wilton Cheatham (“Cheatham”), Plaintiff’s immediate supervisor. (Defendants’ Facts, ¶¶ 28,

29).

problem…I have voiced those in the past, but in this particular case I am

not fitting in the pants.

(Defendants’ Exh. F, PP. 3, 11-13).

During this same general time frame, Plaintiff allegedly engaged in other misconduct and

policy violations. (Defendants’ Facts, ¶ 15). For example, in July, 2016, Plaintiff was involved

in an incident/altercation with Cheatham. (Id., ¶ 16). Following an investigation Edmond

Heatley, Chief Human Resources Officer for the District, issued Plaintiff a Letter of Reprimand,

Final Warning and Mandatory Employee Assistance Program (EAP), stating in relevant part as

follows:

The Human Resources Division received an allegation that you acted in an

inappropriate, and unprofessional manner when [you] became involved in

a verbal and physical altercation with a supervisor.

It was further alleged that you were dismissive of Mr. Cheatham when he

was addressing you, you moved aggressively towards him and used

profane language in front of other co-workers yelling, “You pushed me

mother fucker! You prick son of a bitch.” Your behavior was

unprofessional and comments were inappropriate [and] offensive.”…

Based on the subsequent investigation, the District has determined that

your unprofessional and aggressive conduct initiated a defensive response.

Moreover, you used profane language, your demeanor was unprofessional

and insubordinate. And finally, that you blatantly refused a clear directive

from your supervisor. This conduct was a direct violation [of] SAB

Policies….

Be advised that your conduct has [been] deemed egregious enough to

warrant suspension. However, the District has chosen not to suspend you

at this time. This letter serves as a Formal Letter of Reprimand and Final

Warning. Additionally, you are directed to….make an appointment with a

counselor to discuss anger management strategies. You are hereby

directed to attend 3 sessions to discuss anger management strategies.

Be advised that future acts of policy violations may result in further

disciplinary action up to and including termination of your employment.

(Defendants’ Exh. F, PP. 7-8).6 While Defendant asserts Plaintiff refused to follow the District

directive to attend EAP anger management sessions, Plaintiff counters that he contacted at least

one person at the EAP program and discussed the incident with them. (Defendants’ Facts, ¶ 17

and Plaintiff’s Response thereto). Plaintiff admits, however, that although he scheduled an

appointment with a social worker at EAP, he failed to show up for the appointment. (Id.).

Based on the foregoing, Plaintiff was issued a formal Statement of Charges (“SOC”) and

Notice of Hearing by the District on March 22, 2017, seeking a 30-day suspension without pay.

(Defendants’ Exh. F, PP. 1-4). An evidentiary administrative hearing was held before a three-

person Personnel Committee on April 3, 2017. (Defendants’ Facts, ¶ 19; Defendants’ Exh. I, P.

31). Plaintiff was represented by counsel at the hearing, and was permitted to call and cross

examine witnesses. (Defendants’ Facts, ¶ 20). The Personnel Committee issued its Findings of

Fact, Conclusions of Law and Decision on April 18, 2017, in which it unanimously found that

Plaintiff had violated District Policies 4840(8) and 4840(15), as charged in the March 22, 2017,

SOC. (Defendants’ Exh. I, PP. 31-42). The Committee ordered that Plaintiff be suspended

without pay for thirty calendar days. (Id., P. 41). Although Plaintiff had the right to appeal this

decision to the Circuit Court by way of a Petition for Review, he did not do so. (Defendants’

Facts, ¶ 22).

Plaintiff served his 30-day suspension and returned to his job duties on April 24, 2017.

(Defendants’ Facts, ¶ 23). According to Defendant, Plaintiff’s misconduct persisted upon his

return. (Id., ¶ 24). For example, Johnson testified that in May 2017, Plaintiff was seen putting

6 Plaintiff signed the letter of reprimand, acknowledging receipt, “under duress.” (Defendants’

Exh. F, P. 8). He denies that his behavior was unprofessional, maintaining instead that

Cheatham physically assaulted Plaintiff. (See Plaintiff’s Responses, Exceptions, and Objections

to Defendants’ Statement of Uncontroverted Facts for their Motion for Summary Judgment

(“Plaintiff’s Response to Defendants’ Facts”), ¶ 16).

tools from his personal vehicle into the District van. (Defendants’ Exh. A, PP. 5-6). While it

initially was unclear whether Plaintiff had taken District tools home or was using his personal

tools for District work (neither of which was permitted), Johnson stated he eventually learned the

tools were Plaintiff’s personal tools, and he was using them because he did not have all the tools

he needed. (Defendants’ Facts, ¶¶ 26, 27). Johnson therefore directed Cheatham to conduct an

inventory of Plaintiff’s tools, to determine what additional District tools he may need. (Id., ¶

28). Cheatham testified that he attempted to get the information from Plaintiff, but that Plaintiff

became confrontational and never produced such with respect to his tools. (Defendants’ Exh. J,

PP. 4-5).7 Cheatham reported the interaction to Johnson, and Johnson sent a text to Plaintiff

requesting to meet. (Defendants’ Facts, ¶¶ 32, 33). The provided portion of the text

conversation between Plaintiff and Johnson reads as follows:

Plaintiff: I’m taking my lunch now.

Johnson: Do not leave.

Plaintiff: Going to lunch.

Johnson: This is not an option, I (sic) giving you a direct order. I

need to see you now.

Plaintiff: What is your agenda?

I have gotten sick. My nerves are shaken by all the threats.

I will be out the rest of the day.

(Defendants’ Exh. K, P. 2). Plaintiff then left the premises and did not return that day.

(Defendants’ Facts, ¶ 35).

Also in May, 2017, Plaintiff made a statement to the effect that, “maybe if I feed them a

bunch of bullshit, they’ll make me a supervisor too.” (Defendants’ Facts, ¶ 36, quoting

Defendants’ Exh. L, P. 114). Tim Hauk (“Hauk”), a supervisor, believed the statement was

7 Plaintiff asserts that the interaction referred to in Cheatham’s testimony actually involved the

production of a “tool list,” which was to be completed by Plaintiff, as well as a “tool inventory,”

which was to be completed by Cheatham. (Plaintiff’s Response to Defendants’ Facts, ¶ 31).

Plaintiff maintains he indicated to Cheatham that he was in the process of producing the tool list,

and that he eventually produced a detailed list of over fifty items. (Id.).

directed to him because he was the only supervisor present at the time. (Id.).8 Hauk reported the

statement to Johnson, and as a result John Zaegel (“Zaegel”), Director of Facilities for the

District and Johnson’s supervisor, met with Plaintiff. (Id., ¶¶ 38, 39). Following the meeting,

Zaegel sent an email to Johnson and David Glenn, Human Resources Investigator for the

District, stating as follows:

Today at approximately 10:30 we talked with Mr. May to ask if he had

indeed said what had been reported to us at the time clock last night. He

spent about 3-4 minutes talking about how he couldn’t believe we were

asking him about it and that he says a lot of things over the course of a day

while kidding with his co-workers and asked us to repeat what we had

heard 3-4 more times. I told him we just needed to know if he had said it

or not and his response was “I don’t remember if I said it or not”. At that

time we told him he could go back to work. Instead of leaving he began to

lecture us on how he could not believe we had called him in to ask this

question.

What concerns me the most was during this lecture he made the statement

“What is this, Nazi Germany. First Rosmon perjures himself on the stand

at my hearing, now you have spies listening in on my conversations.

Don’t you guys have anything better to do than ask me these questions.”

At this point I stopped him and said “you just made a very serious

accusation about Rosmon.” To which he went on to talk about how

Rosmon and others had lied about him and what had happened back at the

beginning of the school year. I again stopped him and said we just needed

to know the answer to the question that we had asked. And reminded him

that he could leave to go back to work. This went on a little while longer

before he finally left.

I feel Mr. Mays (sic) attitude and excitable nature are a detriment to the

team and quite frankly a safety threat, in that he cannot control his

escalations of a simple yes or no question into something blown way out

of proportion. He is very cavalier about throwing around serious

accusations in a very boisterous manner and does not seem to be able to

have a civil conversation with his managers.

(Defendants’ Exh. M). According to Defendant, as a result of Plaintiff’s comments to Hauk and

8 Plaintiff denies that the statement was directed toward Hauk, but conceded in his testimony that

he must have said those words or something similar. (Plaintiff’s Response to Defendants’ Facts,

¶¶ 36, 37; Defendants’ Exh. L, P. 227).

Zaegel, the District’s Human Resources Department set up a meeting with Plaintiff.

(Defendants’ Facts, 43). Someone from Human Resources asked Johnson to deliver a letter to

Plaintiff, providing him with notice of the meeting. (Id.). Johnson testified that he went to

Fanning Middle School to deliver the letter, but Plaintiff responded by again accusing Johnson in

a loud voice of lying about the prior incident. (Defendants’ Exh. L, P. 24). Johnson asked

Plaintiff to come outside to discuss the matter in private, because staff remained in the school

building, but Plaintiff refused. (Id.).9 Plaintiff met with the Human Resources staff on May 23,

2017, regarding these latest incidents, and was given an opportunity to write a written response

to the allegations against him. (Defendants’ Facts, ¶ 47). Plaintiff wrote “None is true” in large

letters across the face of the allegations regarding the tool list/inventory. (Defendants’ Exh. K,

P. 3).10 He subsequently left the District’s Human Resources Department before the meeting

process was complete, even though Charles Burton, the District’s Chief Human Resources

Officer, informed Plaintiff that he needed to complete the meeting and that leaving before doing

so would be considered insubordination. (Defendants’ Facts, ¶ 49).11 Finally, Cheatham

documented an alleged incident during a planning meeting between Plaintiff, Cheatham, and

William Sumner, in which Plaintiff allegedly became increasingly agitated and said to

Cheatham, “Just make a fucking decision, I don’t have time to talk about this.” (Id., ¶ 50;

Defendants’ Exh. N). Cheatham went on to state as follows:

Mr. May has exhibited this agitated and belligerent behavior on numerous

documented occasions. His behavior is disruptive and threatening to the

other employees in the area. Mr. May’s behavior makes others feel

9 Plaintiff maintains he remained inside because he did not want to be alone with Johnson.

(Plaintiff’s Response to Defendants’ Facts, ¶ 45).

10 Plaintiff states that he later provided a four page response to the allegations. (Plaintiff’s

Response to Defendants’ Facts, ¶ 48).

11 While Plaintiff admits that Burton made the above remarks, he denies that the meeting process

was incomplete. (Plaintiff’s Response to Defendants’ Facts, ¶ 49).

uncomfortable and unsure whether he will become more hostile and

dangerous.

(Id.).12

As a result of the above and additional actions, Plaintiff was issued a second Statement of

Charges and Notice of Hearing on July 27, 2017, this time seeking his termination. (Defendants’

Facts, ¶ 51). He again was provided with an evidentiary administrative hearing in front of a

three-person Personnel Committee, and as with the previous hearing, Plaintiff was represented

by counsel and allowed to call and cross examine witnesses. (Id., ¶¶ 52, 53). The Committee

issued its Findings of Fact, Conclusions of Law and Decision on November 21, 2017, in which it

unanimously found that Plaintiff had violated numerous District Policies, as charged in the July

27, 2017, SOC, and that Plaintiff’s conduct constituted terminable offenses. (Defendants’ Exh.

O). Plaintiff therefore was ordered discharged from his permanent employment with the District

as of the date of the opinion. (Id., P. 14).

On December 21, 2017, Plaintiff filed a Petition for Administrative Review in the Circuit

Court of the City of St. Louis, challenging the legal basis for his termination. (Defendants’ Exh.

P). On December 11, 2019, the Circuit Court issued its Findings of Fact, Conclusions of Law,

and Judgment, in which it held in part as follows:

7. Pursuant to Section 168.281 RSMo, a permanent employee of the

school district may be removed or suspended from his position for

violating the published regulations of the District….

9. Based on the record as a whole, there is substantial and competent

evidence to support the Committee’s conclusion that Petitioner

violated district policies and regulations and Missouri statutes.

10. The decision of the Personnel Committee to terminate Petitioner’s

employment was not arbitrary, capricious, unreasonable, or an

12 Plaintiff testified that he did not recall making the statement, but acknowledged that he was

“frustrated” that day. (Defendants’ Exh. L, PP. 286-87).

abuse of discretion….

THEREFORE, it is Ordered and Decreed that the Personnel Committee of

the Special Administrative Board of the School District of the City

of St. Louis’ November 21, 2017 Administrative Decision

terminating Petitioner’s employment is hereby AFFIRMED.

(Defendants’ Exh. Q, PP. 10-11).

On May 16, 2018, Plaintiff filed his Charge of Discrimination with the Equal

Employment Opportunity Commission, in which he alleged discrimination based on race and

disability13, and retaliation. (ECF No. 1-1, PP. 22-24). He filed his original Petition for

Damages in the Circuit Court of the City of St. Louis on June 12, 2019. (ECF No. 1-1, PP. 2-

18). Defendant removed the Petition to this Court on August 9, 2019, on the basis of federal

question jurisdiction. (ECF No. 1). In his First Amended Complaint, filed September 18, 2019,

Plaintiff asserts the following claims: (1) Failure to Accommodate, in violation of the

Americans with Disabilities Act of 1990, as amended (“ADA”) (Count I); Disability

Discrimination, in violation of the ADA (Count II); Disability Discrimination: Hostile Work

Environment, in violation of the ADA (Count III); Race Discrimination: Hostile Work

Environment, in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”)

(Count IV); Race Discrimination: Tangible Employment Action, in violation of Title VII (Count

V); and Retaliation, in violation of the ADA (Count VI). (ECF No. 16).

As stated above, Defendant filed the instant Motion for Summary Judgment on April 12,

2021, claiming there exist no genuine issues of material fact and Defendant is entitled to

judgment as a matter of law. (ECF No. 53).

SUMMARY JUDGMENT STANDARD

13 Plaintiff’s alleged disability is tinea versicolor, a skin condition. (Defendants’ Facts, ¶ 61).

The Court may grant a motion for summary judgment if, “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 judgment

as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The substantive law determines which facts are critical and which are irrelevant. Only disputes

over facts that might affect the outcome will properly preclude summary judgment. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not proper if the evidence

is such that a reasonable jury could return a verdict for the nonmoving party. Id.

A moving party always bears the burden of informing the Court of the basis of its motion.

Celotex, 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party

must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material

fact, not the “mere existence of some alleged factual dispute.” Fed. R. Civ. P. 56(e); Anderson,

477 U.S. at 247. The nonmoving party may not rest upon mere allegations or denials of its

pleadings. Anderson, 477 U.S. at 256.

In passing on a motion for summary judgment, the Court must view the facts in the light

most favorable to the nonmoving party, and all justifiable inferences are to be drawn in its favor.

Anderson, 477 U.S. at 255. The Court’s function is not to weigh the evidence, but to determine

whether there is a genuine issue for trial. Id. at 249.

DISCUSSION

I. Disability Discrimination (Counts I, II)

When analyzing a claim of disability discrimination under the ADA, the Court applies the

burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this framework, Plaintiff first must establish a prima

facie case of discrimination by demonstrating “(1) that the plaintiff was disabled within the

meaning of the ADA; (2) that the plaintiff was qualified to perform the essential functions of the

job [with or without a reasonable accommodation]; and (3) a causal connection between an

adverse employment action and the disability.” Lipp v. Cargill Meat Solutions Corp., 911 F.3d

537, 544 (8th Cir. 2018) (internal quotation marks and citation omitted). See also Gardea v. JBS

USA, LLC, 915 F.3d 537, 541 (8th Cir. 2019) (requiring plaintiff claiming failure to

accommodate first to show that he has an ADA disability, that he suffered an adverse

employment action, and that he is a qualified individual). If the plaintiff succeeds, the burden of

production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the

adverse employment action. Lipp, 911 F.3d at 544. If the employer is able to do so, “[t]he

burden then returns to the plaintiff to show that the employer’s proffered reason was a pretext for

discrimination.” Id. (citation omitted).

A. Whether Plaintiff Is Disabled

In its Motion for Summary Judgment, Defendant first claims Plaintiff cannot satisfy the

“disability” prong of the prima facie test. The ADA defines “disability” with respect to an

individual as “(A) a physical or mental impairment that substantially limits one or more major

life activities of such individual, (B) a record of such an impairment, or (C) being regarded as

having such an impairment.”14 See 42 U.S.C. § 12102(1). The ADA further defines “major life

activities” as including, but not limited to, “caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).

In the instant case, Plaintiff’s alleged disability entails suffering from the skin condition

tinea versicolor. (Defendants’ Facts, ¶ 61). He was first diagnosed with this skin condition

14 Plaintiff does not claim to be regarded as having a disability.

while in high school, and the purported symptoms of the condition include itching, inflammation,

discomfort, odor, and a skin pigment discoloration. (Id., ¶¶ 67, 68). Plaintiff testified that the

symptoms are present all or nearly all of the time, and are exacerbated by heat, direct sunlight,

tight fitting clothing (and/or non-cotton clothing that does not breathe), and stress. (Id., ¶¶ 69, 70

and Plaintiff’s responses thereto). Plaintiff asserts his skin condition affects the major life

activities of working and being outside on a daily basis during summer months. (Id., ¶ 71).15

With respect to being outdoors, Plaintiff testified during his deposition that he began

kayaking as a young adult, and still does so at least several times every year, staying on the river

for up to six hours at a time. (Defendants’ Facts, ¶¶ 73-74). He further acknowledged going to

the park and for walks of up to an hour at a time. (Id., ¶¶ 77, 78). With respect to working,

Plaintiff testified that since high school he has held jobs pumping gas, washing cars, training

horses, and as a summer camp counselor, which involved kayaking, going on bicycle trips, and

teaching children how to ride horses. (Id., ¶ 79). He further stated that during his employment

with the District, he never missed time from work or was unable to complete a work project due

to his skin condition. (Id., ¶ 80). Finally, Plaintiff testified that when his skin condition is at a

low level condition, he “kind of forget[s] about it” unless someone mentions it. (Id., ¶ 81).

Upon consideration of the foregoing, the Court finds that Plaintiff has established that he

suffers from the physical impairment of tinea versicolor. A physical impairment alone, however,

“is not necessarily a disability as contemplated by the ADA.” Goff v. Performance Contractors,

Inc., Case No. 18-0529-WS-MU, 2020 WL 1794967, at *6 (S.D. Ala. Apr. 8, 2020) (internal

15 In his responses to Defendants’ interrogatories, Plaintiff claimed that the condition also

affected the major life activities of sleeping and having relations with his partner. (See

Defendants’ Exh. R, P. 5). Plaintiff offers no evidence of this, however, and so the Court does

not find that he establishes a genuine issue of material fact with respect to these alleged

limitations.

quotation marks and citation omitted). See also Morey v. Windsong Radiology Group, P.C., 794

Fed.Appx. 30, 32 (2d Cir. 2019) (internal quotation marks and citations omitted) (“[W]hile

Congress expanded the definition of ‘substantially limits’ when it amended the ADA in 2008, the

amendments did not render the term ‘impairment’ limitless. The amendments did not diminish

the importance of distinguish[ing] between conditions that are impairments and physical,

psychological, environmental, cultural and economic characteristics that are not impairments.”).

As noted above, Plaintiff testified that he has continued to participate in summertime activities

since his diagnosis decades ago, and his employment history demonstrates that his skin condition

has had no significant impact on his ability to work in a variety of jobs and weather conditions.

The Court thus finds that even when viewed in the light most favorable to Plaintiff, the record

does not show that Plaintiff’s impairment substantially limits any of his major life activities.

Plaintiff thus fails to demonstrate that he is actually disabled within the meaning of the ADA.

Goff, 2020 WL 1794967, at *6.16

As to Plaintiff’s claim that he has a record of having a disability, Plaintiff testified about

having visited medical providers regarding his skin condition on only two occasions in the past

ten years, on July 22, 2015, and April 8, 2020. (Defendants’ Facts, ¶ 83).17 During his 2015

consultation with a dermatologist, Plaintiff was prescribed a 15-day supply of Ketoconazole

cream, which had an out-of-pocket cost of $10.00. (Id., ¶¶ 86, 87). Although there were refills

available to Plaintiff, he provides no evidence that he ever refilled the prescription. (Id., ¶ 87).

16 Plaintiff’s failure to establish that he suffers from a disability under the ADA also defeats his

Count III claim of hostile work environment based on disability. See Sellers v. Deere & Co., 791

F.3d 938, 945 (8th Cir. 2015) (holding that in order to prevail on a hostile work environment

claim, the plaintiff must present evidence that he is a member of the class of people protected by

the statute).

17 While Plaintiff testified that “it’s possible that [he] got treatment from somebody else”, he

provides no evidence of any such treatment.

During his 2020 virtual visit with a nurse practitioner, Plaintiff was prescribed a 30-day supply

of Ketoconazole shampoo, and Fluconazole tablets for two weeks, with respective costs of

$16.40 and $9.31. (Id., ¶¶ 84, 88, 89). Again, despite the availability of refills, Plaintiff provides

no evidence that he acquired medication beyond the initial prescriptions. (Id., ¶ 89).

Under the ADA, an individual has a “record” of a disability if he “has a history of, or has

been misclassified as having, a mental or physical impairment that substantially limits one or

more major life activities.” See 29 C.F.R. § 1630.2(k)(1). As discussed supra, Plaintiff fails to

establish that his skin condition has limited any major life activity. Furthermore, the Court finds

that Plaintiff’s limited interaction with medical personnel and infrequent use of prescription

medications fail to establish that he has a record of suffering from such an infirmity. Plaintiff

thus fails to demonstrate that he suffers from a disability, and therefore cannot establish a prima

facie case of disability discrimination.

B. Legitimate, Nondiscriminatory Reasons And Pretext

Even assuming Plaintiff could establish that he has a disability within the meaning of the

ADA, the Court finds he cannot establish a causal connection between the termination and his

alleged disability. As noted above, Defendant maintains it terminated Plaintiff’s employment

because Plaintiff allegedly engaged in numerous instances of misconduct and policy violations,

including his noncompliance with uniform requirements, his involvement in an

incident/altercation with his immediate supervisor in July, 2016, his failure to attend employer-

mandated EAP management sessions regarding said incident, his impermissible use of personal

tools for District work in May, 2017, and his inappropriate comments and excitable, accusatory

nature. With these allegations, the Court finds Defendant successfully articulates a legitimate,

nondiscriminatory reason for the adverse employment action. Plaintiff offers no evidence that

Defendant’s proffered reason was a pretext for discrimination, and so Defendants’ Motion for

Summary Judgment on Plaintiff’s disability discrimination claims in Counts I and II must be

granted.

II. Race Discrimination (Count V)

In Count V of Plaintiff’s First Amended Complaint, he asserts a claim for Race

Discrimination: Tangible Employment Action. Claims of Title VII race discrimination also are

analyzed under the McDonnell Douglas burden-shifting framework. Thus, Plaintiff first must

establish a prima facie case of discrimination by demonstrating that he: “‘(1) is a member of a

protected group; (2) was meeting the legitimate expectations of the employer; (3) suffered an

adverse employment action; and (4) suffered under circumstances permitting an inference of

discrimination.’” Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 903 (8th Cir. 2015)

(quoting Davis v. Jefferson Hosp. Ass’n, 685 F.3d 675, 681 (8th Cir. 2012)). Once the plaintiff

establishes a prima facie case, the burden shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the adverse employment action. Id. “If the employer meets this

burden, the presumption of discrimination disappears, requiring the plaintiff to prove that the

proffered justification is merely a pretext for discrimination.” Id. (internal quotation marks and

citation omitted).

The Court assumes without deciding that Plaintiff has established a prima facie case of

race discrimination.18 As noted above, Defendant here offered a legitimate, nondiscriminatory

18 In fact, Defendant presents compelling evidence that with his conduct, Plaintiff was not

meeting the legitimate expectations of his employer. Furthermore, Plaintiff’s evidence that he

suffered the adverse employment action under circumstances permitting an inference of

discrimination is weak, as he provides mainly his own opinion that Defendant’s actions were

based on race. See Shanklin v. Fitzgerald, 397 F.3d 596, 603 (8th Cir. 2005) (citing Davenport v.

Riverview Gardens Sch. Dist., 30 F.3d 940, 945 (8th Cir. 1994) (affirming grant of summary

judgment because nonmoving party’s only evidence to rebut motion was unsubstantiated

reason for Plaintiff’s discharge, namely, his alleged misconduct and policy violations. The

burden thus shifts back to Plaintiff to show that the proffered reason was mere pretext for

discrimination.

A plaintiff may establish pretext, among other ways, by showing that an employer treated

similarly-situated employees in a disparate manner. Lee v. Mallinckrodt Enterprises, LLC, 456

F.Supp.3d 1089, 1095 (E.D. Mo. 2020).

The similarly situated co-worker inquiry is a search for a substantially similar

employee, not for a clone. [Plaintiff] must prove only that the other employees

were similarly situated in all relevant respects.

Id. (internal quotation marks and citations omitted).

In an effort to demonstrate pretext, Plaintiff points to two occasions when other

employees, all African-American, allegedly were treated more favorably. First, he references the

July 5, 2016, “elevator incident,” wherein Plaintiff claims that although he was physically

pushed by his African-American supervisor, Cheatham, Plaintiff received a Formal Letter of

Reprimand and Suspension Without Pay (and was directed to attend three anger management

counseling sessions), while Cheatham was placed on administrative leave with pay, and then

merely issued a Collegial Letter of Warning. (Plaintiff’s Statement of Additional Controverted

Material Facts (“Plaintiff’s Additional Facts”), ¶ 21). Defendant counters that both Plaintiff and

Cheatham were placed on administrative leave with pay pending investigation, and that it

imposed the various disciplinary actions only after engaging in a full investigation, including

obtaining witness statements. (See Defendant’s Response to Plaintiff’s Additional Facts, ¶¶ 21,

statements in deposition)). See also Palesch v. Missouri Com’n on Human Rights, 233 F.3d 560,

567-68 (8th Cir. 2000) (“[Plaintiff] offers little more than speculation and conjecture to make the

required connection from the mistreatment she alleges to a gender or race-based animus.

[Plaintiff] has failed to create a material issue of fact concerning whether she was subjected to

workplace harassment because of either her race or gender.”).

22). Next, Plaintiff claims that Gary Fowler and Greg Hartnett, both African-American, were

permitted to wear work jeans instead of uniform pants. (Plaintiff’s Additional Facts, ¶ 24).19

Defendant counters that neither man was similarly situated to Plaintiff, as Hartnett had not yet

obtained uniform pants from the uniform vendor, and Johnson was not aware of Fowler being

out of uniform. (Defendant’s Response to Plaintiff’s Additional Facts, ¶ 24).20 Finally,

Defendant offers evidence that one of Plaintiff’s co-workers, a Black employee named Eural

Thomas, was disciplined in the same manner as Plaintiff for his uniform non-compliance and

other misdeeds. (Defendants’ Facts, ¶¶ 110-115). Plaintiff offers nothing else to support an

inference that the termination decision was motivated by discriminatory animus, and so this

portion of Defendants’ Motion for Summary Judgment must be granted.

III. Hostile Work Environment (Counts III, IV)

In Count III of his First Amended Complaint, Plaintiff asserts a claim for Disability

Discrimination: Hostile Work Environment. In Count IV, he asserts a claim for Race

Discrimination: Hostile Work Environment.21 “‘[T]o establish a hostile work environment

19 Plaintiff further alleges various electricians were permitted to wear non-uniform

overalls/coveralls, and painters and plasterers were permitted to wear non-uniform white

painters’ pants and white t-shirts. (Plaintiff’s Additional Facts, ¶ 24). He fails to rebut

Defendant’s response, however, that neither electricians, painters, nor plasterers were permitted

to be out of compliance with the uniform policy, and that white pants and t-shirts were the

uniform for painters and plasterers. (See Defendant’s Response to Plaintiff’s Additional Facts, ¶

24).

20 The Court further notes that Defendant provided reasons for Plaintiff’s termination beyond the

uniform violations, and Plaintiff offers no evidence that either Hartnett or Fowler engaged in

similar conduct. See Moody v. Vozel, 771 F.3d 1093, 1097 (8th Cir. 2014) (internal citation

omitted) (“Moody notes other AHTD employees, who were disciplined for sexual harassment

and other offenses, were not terminated. Moody does not, however, engage in a full comparator

analysis, nor does he seriously and persuasively dispute the defendants’ evidence that these noted

individuals were not similarly situated to him.”).

21 Plaintiff’s race-based hostile work environment allegations are perplexing, as he claims,

among other things, that he is a member of the class of persons protected by Title VII by virtue of

based on disability, plaintiff must show that (1) []he is a member of the class of people protected

by the statute, (2) []he was subject to unwelcome harassment, (3) the harassment resulted from

[his] membership in the protected class, and (4) the harassment was severe enough to affect the

terms, conditions or privileges of [his] employment.’” Johnson v. Robert McDonald Secretary

Department of Veterans Affair, No. 4:15CV1869 CAS, 2016 WL 5870061, at *5 (E.D. Mo. Oct.

7, 2016) (quoting Sellers, 791 F.3d at 945). See also Hales v. Casey’s Marketing Co., 886 F.3d

730, 735 (8th Cir. 2018) (listing elements for Title VII hostile work environment claim).

As to the fourth element, “[i]n order to be actionable, harassment must be both

subjectively hostile or abusive to the victim and ‘severe and pervasive enough to create an

objectively hostile or abusive work environment—an environment that a reasonable person

would find hostile or abusive.’” Shaver v. Independent Stave Co., 350 F.3d 716, 721 (8th Cir.

2003) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295

(1993)). See also Moses v. Dassault Falcon Jet-Wilmington Corp., 894 F.3d 911, 922 (8th Cir.

2018). “Anti-discrimination laws do not establish codes of civility in the workplace and

‘[c]onduct that is merely rude, abrasive, unkind, or insensitive does not come within the scope of

the law.’” Johnson, 2016 WL 5870061, at *5 (citation omitted). In order to determine whether

the harassment affected a term, condition or privilege of employment, courts must “consider the

totality of the circumstances, including the frequency and severity of the conduct, whether it is

physically threatening or humiliating, and whether it unreasonably interferes with [Plaintiff’s]

job performance.” Sellers, 791 F.3d at 945 (internal quotation marks and citation omitted).

his male gender, and that various employees of “Defendant Police Department” subjected him to

severe and unwelcome conduct. (FAC, ¶¶ 85, 86).

“‘The Supreme Court has cautioned courts to be alert for workplace behavior that does

not rise to the level of actionable harassment.’” Moses, 894 F.3d at 922 (quoting Al-Zubaidy v.

TEK Indus., Inc., 406 F.3d 1030, 1038 (8th Cir. 2005)).

The stringent hostile work environment standard is designed to filter out

complaints attacking the ordinary tribulations of the workplace, such as the

sporadic use of abusive language ... and occasional teasing. [M]erely rude or

unpleasant conduct are insufficient to affect the terms and conditions of

employment. The plaintiff must show that the alleged harassment was so

intimidating, offensive, or hostile that it poisoned the work environment.

[S]imple teasing, offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the terms and conditions of

employment.

Id. at 922-23 (internal quotation marks and citations omitted).

Upon consideration, the Court finds that “the conduct about which [Plaintiff] complains

is not severe enough to support his hostile work environment claim[s].” Id. at 922 (internal

quotation marks and citation omitted). In other words, while the complained-of conduct can be

characterized as rude or unpleasant, it was not severe or pervasive enough to affect the terms,

conditions, or privileges of Plaintiff’s employment. Id. at 923. See also Jackman v. Fifth

Judicial Dist. Dept. of Correctional Servs., 728 F.3d 800, 806 (8th Cir. 2013) (internal quotation

marks and citations omitted) (“The standard for demonstrating a hostile work environment under

Title VII is demanding, and does not prohibit all verbal or physical harassment and it is not a

general civility code for the American workplace….On their face, [the] comments are best

characterized as offensive, but not so severe or pervasive as to permeate the workplace.”). This

portion of Defendant’s Motion for Summary Judgment will therefore be granted.

IV. Retaliation Under The ADA (Count VI)

In Count VI of his First Amended Complaint, Plaintiff alleges he was retaliated against as

a result of his engagement in protected activities, namely reporting his disability to Defendant,

and requesting a reasonable accommodation for such. The ADA prohibits retaliation against an

employee, providing in relevant part that “[n]o person shall discriminate against any individual

because such individual has opposed any act or practice made unlawful by this chapter.” 42

U.S.C. § 12203(a). Pursuant to the McDonnell Douglas burden-shifting framework, the

employee has the initial burden of establishing a prima facie case of retaliation, which he meets

by showing that, “(1) [he] engaged in statutorily protected activity; (2) [he] suffered an adverse

employment action; and (3) a causal connection between the two.” Moses, 894 F.3d at 924

(internal quotation marks and citations omitted). “To prevail on his retaliation claim, [Plaintiff]

need not prove that he was disabled within the meaning of the ADA, but must demonstrate a

good faith, reasonable belief that the underlying challenged actions of the employer violated the

law.” Hines v. Veterans Outreach Center, No. 10-CV-6493, 2013 WL 12202521, at *8 (W.D.

N.Y. Mar. 29, 2013) (internal quotation marks and citations omitted). If an employee establishes

a prima facie case of retaliation, the burden shifts to the employer to articulate a legitimate, non-

retaliatory reason for its action; if the employer does so, the burden then shifts back to the

employee “to present evidence that (1) creates a question of fact as to whether [defendant’s]

reason was pretextual, and (2) creates a reasonable inference that [defendant] acted in

retaliation.” Logan v. Liberty Healthcare Corp., 416 F.3d 877, 880 (8th Cir. 2005) (internal

quotation marks and citations omitted).

The Court assumes without deciding that Plaintiff has established a prima face case of

retaliation.22 As explained in section I(B), supra, Defendant maintains it terminated Plaintiff’s

22 Defendant again presents compelling evidence that Plaintiff cannot establish his prima facie

case, as (a) Plaintiff fails to establish that he engaged in statutorily protected conduct in the first

instance, and (b) the elapsed time between Plaintiff’s purported protected activity and the July

25, 2017, SOC that eventually led to his termination over seven months later, belies any

inference of a causal connection between the two events. (See Defendants’ Memo in Support,

employment because Plaintiff allegedly engaged in misconduct and committed policy violations.

With these allegations, the Court finds Defendant successfully articulates a legitimate,

nondiscriminatory reason for the adverse employment action.

The burden thus shifts back to Plaintiff to show that the proffered reason was mere

pretext for retaliation. Plaintiff offers no such evidence, however; instead, when questioned

during his deposition as to why he believed that Johnson’s actions constituted retaliation for

Plaintiff’s alleged protected activities, Plaintiff provided responses such as “I don’t know” and “I

don’t know what he [Johnson] was thinking that day.” (Defendants’ Facts, ¶ 116). Plaintiff

continued to speculate that Johnson may have engaged in the conduct because he “wanted to

show power against [Plaintiff]”, or to “back up his buddy [Cheatham] and keep him out of

trouble.” (Id., ¶ 117). The Court finds Plaintiff’s assertions insufficient to create a genuine

question of material fact on the issue of pretext, and so Defendants’ Motion for Summary

Judgment on Plaintiff’s disability retaliation claim must be granted.23

PP. 29-31, citing Fercello v. Cty. of Ramsey, 612 F.3d 1069, 1080 (8th Cir. 2010) (finding a 6-

month gap between the protected activity and the adverse employment action weakens the

inference of causation); Muor v. U.S. Bank Nat. Ass’n, 716 F.3d 1072, 1079 (8th Cir. 2013) (8-

month gap “between the bulk of the alleged adverse actions and [the] protected activity vitiates

[the] contention that the temporal link gives rise to an inference of retaliatory motive.”)).

23 In light of the above rulings, the Court need not address Defendant’s contentions that

Plaintiff’s claims are precluded by the doctrines of res judicata and/or collateral estoppel, or that

the majority of the claims are time-barred.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF No.

53) is GRANTED, and Plaintiff’s claims are DISMISSED with prejudice. An appropriate

Judgment will accompany this Memorandum and Order.

Dated this 30th Day of July, 2021.

/s/ Jean C. Hamilton

UNITED STATES DISTRICT JUDGE