Hawthorne v. City of Prattville, Alabama

IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

JAY HAWTHORNE, )

)

Plaintiff, )

)

v. ) Case No. 2:19-cv-139-RAH

) (WO)

CITY OF PRATTVILLE, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

This case concerns a local firefighter, Jay Hawthorne (“Hawthorne”),

formerly employed with the fire department at the City of Prattville (“the City”),

who, due to physical limitations resulting from a motor vehicle accident and a

separate work-related injury, was unable to fully return to his job as a battalion

chief. Hawthorne filed this suit against the City, claiming violations of the

Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), the

Rehabilitation Act of 1973, 29 U.S.C. § 701, and the Age Discrimination in

Employment Act, 42 U.S.C. § 621 et seq. (ADEA), when the City refused to honor

Hawthorne’s accommodation requests, thereby ultimately forcing him to retire

from the City.

Pending before the Court is the motion for summary judgment filed by the

City. (Doc. 16.) Hawthorne has filed a response, (Doc. 20), and the City a reply,

(Doc. 23).

As explained below, the City’s motion is due to be GRANTED.

II. BACKGROUND

A. The Battalion Chief Position

Hawthorne became a battalion chief in 2011. (Doc. 16-18 at 2.) A battalion

chief is a heavy-duty-rated, 24-hour position that works 24 hours on-duty followed

by 48 hours off-duty. (Doc. 16-13 at 31.) Battalion chiefs do not fight fires, but

they do attend structure fires, haz-mat and multi-casualty events. (Doc. 16-13 at 7,

33.) Their duties principally involve coordinating the efforts of several fire

stations and the captains that serve each. See, e.g., Atlanta Professional

Firefighters Union, Local 134 v. City of Atlanta, 920 F.2d 800, 804 (11th Cir.

1991) (discussing the hierarchy of a fire department).

At the City, 24-hour employees, such as a battalion chief, are allowed to pay

another employee of equal rank to work the overnight portion of the 24-hour shift

in the assigned employee’s place, and thereby shorten the actual shift worked.

(Doc. 16-13 at 31-32.) Hawthorne regularly used this policy in 2017, the year

preceding the events at issue in this case, so that he could manage family

obligations, sleep at home, and maintain a normal schedule. (Doc. 16-13 at 31-32.)

B. Hawthorne’s Car Accident and Temporary Accommodation

On March 31, 2017, Hawthorne injured his neck in a non-work-related car

accident for which he ultimately underwent surgery. (Doc. 16-1; Doc. 16-2.)

Hawthorne used and exhausted his twelve weeks of Family and Medical Leave Act

(“FMLA”) leave but was not immediately released by his physician to return to

work full duty. (Doc. 16-3.) Therefore, Hawthorne used his accrued sick and

vacation time as an accommodation during his continued absence. (Doc. 16-3.)

On October 13, 2017, Hawthorne provided the City with a return-to-work

plan, stating that he could return to light-duty work on October 16, 2017 and then

to full-duty work four months later. (Doc. 16-4.) Beginning October 23, 2017, the

City provided Hawthorne with light-duty clerical work in 8-hour daily shifts as a

temporary accommodation while he continued to recover. (Doc. 16-13 at 28-29;

Doc. 16-14 at 4, 9; Doc. 16-15 at 4.) During the time that Hawthorne was working

in the temporary light-duty position, his battalion chief duties were performed by

Captain Josh Brown as acting battalion chief. (Doc. 16-13 at 29; Doc. 16-17 at 3.)

Four months later, in February 2018, the City’s Human Resource Director,

Lisa Thrash, requested that Hawthorne submit a status plan. (Doc. 16-4.) In

response, on February 27, 2018, Hawthorne provided an updated plan, stating that

he could not return to full-duty work but that he could return to a modified work

capacity, lifting no more than 75 pounds for the next 6 weeks. (Doc. 16-4; Doc.

16-5.) Hawthorne remained in his temporary position while under these

restrictions.

On April 12, 2018, Hawthorne provided another update regarding his

recovery and ability to work, stating that he needed to work under restrictions for

another month. (Doc. 16-4.)

On April 19, 2018, Thrash emailed Hawthorne to advise that the temporary

accommodation would end on April 21, 2018 and that the City would continue to

accommodate him through his use of leave time, or alternatively, he needed to

retire. (Doc. 16-5; Doc. 16-15 at 5; Doc. 21-2 at 2; Doc. 21-13.) Hawthorne,

however, did not want to use his accrued leave or retire, so he convinced his doctor

to allow him to return to work full duty, with no limitations. (Doc. 21-2 at 3; Doc.

16-5; Doc. 16-13 at 28.) This decision proved to be a mistake, at least medically.

C. Hawthorne’s Second Injury Causing Event

Hawthorne returned to work full duty, per his physician’s release, on May 2,

2018. (Doc. 21-2 at 3; Doc. 16-5; Doc. 16-13 at 17.) The day of his return,

Hawthorne participated in a quarterly physical exercise evaluation and afterwards

complained of pain and numbness in his neck that radiated through his shoulder.

(Doc. 16-6; Doc. 16-13 at 28.) As a result, he visited the City’s workers’

compensation physician, was diagnosed with a muscle strain, and was released

back to work with a lifting limitation of 15 pounds. (Doc. 16-7; Doc. 21-2 at 3.)

D. Hawthorne’s Second Return to Work

The City scheduled Hawthorne to return to work on May 20, 2018, on a 24-

hour shift, restricted-duty status, based on the medical restrictions placed on

Hawthorne by his physician. (Doc. 16-8; Doc. 16-13 at 30.) According to the City

(Thrash), their logic was several-fold — Hawthorne could be effective in assisting

shift members in his battalion with their reports, it was in his best interest to return

to the shift to which he was most accustomed, and he would soon recover from his

muscle strain. (Doc. 16-15 at 6; Doc. 21-7 at 4, 6.)

The City’s duty restrictions were outlined in a letter dated May 14, 2018,

and included, among others, “no operation of department vehicles,” “no

responding to incident or emergency scenes,” and “no lifting over 15 pounds.”

(Doc. 16-8.)

The vehicle use restriction was concerning to Hawthorne because the City

had never placed this restriction on other employees who had medical restrictions.

(Doc. 21-1 at 12-15.) According to the City, this restriction was not because of

Hawthorne’s medical condition, but instead was because Hawthorne was not

performing the duties of a battalion chief. (Doc. 16-13 at 7; Doc. 16-15 at 6.)

Another concern for Hawthorne was that he was placed under the direction

of Captain Josh Brown who was serving as acting battalion chief, even though

Hawthorne held a senior rank. (Doc. 21-2 at 3-4.) Hawthorne believed this was

egregious because the City took away his accommodated light-duty position as a

battalion chief and placed him underneath a subordinate rank employee. (Doc. 16-

13 at 8; Doc. 21-1 at 16.)

Of all the new restrictions, the 24-hour shift requirement was the most

problematic for Hawthorne. According to Hawthorne, because of his medical

condition, his physician recommended that he sleep on a “regular bed” (that is, his

own bed at home), instead of a cot at the station. Therefore, Hawthorne believed

he should not have been required to work 24-hour shifts as did the other fire

department employees, including all of the other battalion chiefs. (Doc. 16-9.)

Instead, Hawthorne believed he should have been permitted to work only reduced

8-hour shifts and stay at his own home at night.

Upon hearing of Hawthorne’s complaint about the cot and the need to sleep

at home instead of completing the 24-hour shifts like everyone else, Thrash

confirmed that the City in fact provided regular beds with memory-foam

mattresses, not cots, for 24-hour shift personnel such as Hawthorne. (Doc. 16-15

at 7.) Thrash also contacted Hawthorne’s physician for more information about the

cot issue. (Id.) During their conversation, the physician clarified that the regular

bed request was “not a medical restriction” but instead a suggestion based on

Hawthorne’s statement to him that the City was “having him sleep on a cot in the

fire department” and that Hawthorne “was unhappy with sleeping at the station.”

(Id.) For Thrash, this was problematic because this “was a 24-hour shift” and it

was inaccurate for Hawthorne to claim that he was sleeping on a cot. (Id.) From

Thrash’s point of view, Hawthorne was “very angry that he was working a 24-hour

shift” and “he did not want to do that.” (Id.)

Dissatisfied with the new restrictions and the City’s refusal to allow him to

work a reduced 8-hour schedule, Hawthorne retained legal counsel. Counsel’s first

volley was a May 25, 2018, letter that threatened an EEOC filing if Hawthorne was

not returned to his “previous accommodation position, with full pay, benefits and

privileges.” (Doc. 16-10 at 2-3; Doc. 21-16.) This missive was accompanied by

correspondence from a licensed professional counselor, who recommended that

Hawthorne be accommodated with an 8-hour shift and be permitted to sleep at

home. (Doc. 21-17 at 2.) Hawthorne then filed a charge of discrimination with the

Equal Employment Opportunity Commission (“EEOC”) several days later on June

8, 2018. (Doc. 1.)

Although unclear in the record as to the date, Hawthorne says that he

discussed with the City about moving into an “administrative battalion chief”

position but was told that the City was leaving the position open for 32-year old,

Captain Josh Bingham, once Hawthorne retired. (Doc. 21-1 at 28; Doc. 21-2 at 2.)

Hawthorne also spoke with Fire Chief Terry Brown, Fire Marshall Dallis Johnson,

and Assistant Chief Michael Whaley about being demoted into an administrative

captain position, if the battalion chief position was not available. (Doc. 21-1 at 29;

Doc. 21-5 at 4-5; Doc. 21-6 at 4.) According to Hawthorne, the position would

become open if Captain Bingham was promoted to Hawthorne’s battalion chief

position. (Doc. 16-14 at 5.) Although the responses varied, Assistant Chief

Whaley confirmed that the City had an administrative captain position that handled

emergency medical system (EMS) administration and three training captain

positions. (Doc. 21-6 at 5-6.) Hawthorne was not moved into any of these

positions.

Ultimately, matters came to a head in August 2018. First, Hawthorne’s

name was removed from the duty roster, even though the names of other injured

officers were not removed. (Doc. 21-3 at 1; Doc. 21-20.) This resulted in other

employees asking if he had retired. (Doc. 21-3 at 1.) According to Hawthorne, he

believes his name was removed because his job as battalion chief was given to

Captain Josh Bingham who took over Hawthorne’s station and moved into

Hawthorne’s office. (Doc. 21-3 at 1.)

Second, three days later on August 15, 2018, Hawthorne was told that his

accommodation had ended and that he needed to go home on workers’

compensation. (Doc. 21-3 at 3.) The City, through Thrash, testified that

Hawthorne was sent home because he continued to complain of pain, his situation

remained unclear, and it seemed in his and the City’s best interest for him not to be

there. (Doc. 21-7 at 23.) Thrash also stated that the City was having to “stretch”

to find clerical tasks for Hawthorne while he was on his temporary accommodation

and, as Thrash put it, “(y)ou’re really making up busy work,” which was “not in

the best interest of anyone for that to happen.” (Doc. 16-15 at 12.) Hawthorne

never returned to his job with the City.

On September 17, 2019, Hawthorne notified the City of his retirement due to

his work-related injury that prohibited him from being heavy-duty rated as required

for his battalion chief position. (Doc. 16-12.) Hawthorne concedes that, following

his motor vehicle accident on March 31, 2017, he never was able to physically

perform all of the duties required of a battalion chief. (Doc. 16-13 at 6, 9, 14.)

E. The Lawsuit

Before he announced his retirement, Hawthorne filed this lawsuit on

February 21, 2019, alleging age and disability discrimination and retaliation. (Doc.

1.) Hawthorne claims he was denied a reasonable request for an accommodation,

was replaced as battalion chief by a younger, non-disabled individual, was treated

less favorably than younger individuals, and was retaliated against for filing,

through counsel, an internal complaint of discrimination and the EEOC Charge.

Among the discriminatory and retaliatory actions taken by the City of which

Hawthorne complains: (1) he was not allowed to drive a fire department vehicle as

was customarily afforded to battalion chiefs, (Doc. 21-2 at 3; Doc. 21-15); (2) he

should have been allowed to return to the 8-hour light duty position as a battalion

chief following his on-the-job injury instead of the 24-hour shift that was

customarily required of battalion chiefs, (Doc. 16-13 at 22, 29-31, 47-48); (3) he

should have been allowed to go home every night, (Doc. 20 at 1); (4) he should

have been given a position as an administrative battalion chief, (Doc. 1 at 2), or

have been demoted to another position, (Doc. 21-1 at 29-30); (5) he should not

have been put under the supervision of an individual who was younger and of a

lower rank, (Doc. 1 at 4; Doc. 20 at 2); (6) he was removed from the duty roster in

an effort to humiliate him, (Doc. 1 at 5); and (7) employees joked about him

because he was taken off the duty roster, (Doc. 1 at 5; Doc 21-1 at 32-33).

Of these, the primary complaint advanced by Hawthorne was that “following

the second injury, it [i.e., the City] would not allow a similar accommodation, but

instead, required him to work 24-hour shifts, even though he could not respond to

emergencies.” (Doc. 20 at 1.)

III. STANDARD OF REVIEW

Pursuant to Fed. R. Civ. P. 56(c), summary judgment is proper “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 a judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary

judgment “always bears the initial responsibility of informing the district court of

the basis for its motion, and identifying those portions of the ‘pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of

material fact.” Id. at 323.

The movant may meet this burden by presenting evidence showing there is

no dispute of material fact, or by showing that the nonmoving party has failed to

present evidence in support of some element of its case on which it bears the

ultimate burden of proof. Id. at 322–24. If the movant succeeds in demonstrating

the absence of a material issue of fact, the burden shifts to the non-movant to

establish, with evidence beyond the pleadings, that a genuine issue material to the

non-movant's case exists. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115–17

(11th Cir. 1993); see also id. at 1116, n. 3 (discussing Fed. R. Civ. P. 56(e))

(“When a motion for summary judgment is made and supported . . . an adverse

party may not rest upon the mere allegations or denials of [his] pleading, but [his]

response . . . must set forth specific facts showing that there is a genuine issue for

trial.”). What is material is determined by the substantive law applicable to the

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute of material fact “is ‘genuine’ . . . if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Id. at 248. The

non-movant “must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986). Rather, the non-movant must present “affirmative

evidence” of material factual conflicts to defeat a properly supported motion for

summary judgment. Anderson, 477 U.S. at 257. If the non-movant's response

consists of nothing more than conclusory allegations, the court must enter

summary judgment for the movant. See Holifield v. Reno, 115 F.3d 1555, 1565, n.

6 (11th Cir. 1997); Harris v. Ostrout, 65 F.3d 912 (11th Cir. 1995).

However, if there is a conflict in the evidence, “the [plaintiff's] evidence is

to be believed and all justifiable inferences are to be drawn in his favor.”

Anderson, 477 U.S. at 255; Molina v. Merritt & Furman Ins. Agency, 207 F.3d

1351, 1356 (11th Cir. 2000). After the nonmoving party has responded to the

motion for summary judgment, the court must grant summary judgment if there

remains no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c).

IV. DISCUSSION

Hawthorne claims the City violated the ADA and ADEA by discriminating

against him because of his disability and age, respectively. The City argues that

Hawthorne cannot establish the prima facie elements of either claim and, in

addition, it acted with legitimate, non-discriminatory reasons for the employment

actions at issue. The Court concludes that summary judgment is due to be granted

for the City on all claims.

A. Disability Discrimination (Count I)

Hawthorne first alleges the City violated the ADA1 when the City failed to

accommodate his request to be placed in an administrative battalion chief position

that would allow him to work an 8-hour shift of clerical-type duties instead of the

24-hour shift required of most other fire department employees. (Doc. 1 at 7; Doc.

21 at 16, 19, 21.) This accommodation, according to Hawthorne, was reasonable

and did not constitute an undue hardship upon the City because the City already

had administrative positions on its payroll and because the City previously had

accommodated him by allowing him to perform mostly administrative tasks.

Hawthorne claims that the City’s unwillingness to provide these accommodations

was nothing more than an effort “to force him to retire so that the Department

could give the Administrative Battalion Chief position to a non-disabled man,

namely Josh Bingham.” (Doc. 21 at 15.)

The ADA provides that no covered entity (i.e., employer) “shall discriminate

against a qualified individual on the basis of disability in regard to job application

1 Discrimination claims under the Rehabilitation Act are governed by the same standards used in ADA cases, see

Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000), with the only relevant difference being the federal funding

requirement under the Rehabilitation Act, see, e.g., Badillo v. Thorpe, 158 F. App'x 208, 214 (11th Cir. 2005). It is

undisputed here that the City receives federal funding, and therefore, the Court analyzes Hawthorne’s ADA and

Rehabilitation Act claims in tandem.

procedures, the hiring . . . or discharge of employees . . . and other terms,

conditions, and privileges of employment.” 42 U.S.C. § 12112(a). A plaintiff can

establish a prima facie ADA discrimination case “using the familiar burden-

shifting analysis employed in Title VII employment discrimination cases.”

Wascura v. City of S. Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). To meet this

burden, a plaintiff must prove three elements: “(1) he is disabled; (2) he is a

qualified individual; and (3) he was subjected to unlawful discrimination because

of his disability.” Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255–56 (11th

Cir. 2007).

“An employer unlawfully discriminates against a qualified individual with a

disability when the employer fails to provide ‘reasonable accommodations’ for the

disability—unless doing so would impose undue hardship on the employer.” Lucas

v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001) (citing 42 U.S.C. §

12112(b)(5)(A) and 29 C.F.R. § 1630.9(a)). Satisfying the reasonable

accommodation requirement does not require the employer “to accommodate an

employee in any manner in which that employee desires.” Stewart v. Happy

Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997) (citation

and internal quotation omitted). The accommodation must only “enable[] the

employee to perform the essential functions of the job.” Holly, 492 F.3d at 1256. A

plaintiff has the burden to identify an accommodation and to demonstrate that it

allows him to perform the job’s essential functions. Lucas, 257 F.3d at 1255-56;

see Rabb v. Sch. Bd. Of Orange Cty., 590 F. App’x 849, 850 (11th Cir. 2014) (per

curiam) (“The plaintiff bears the burden both to identify an accommodation and

show that it is reasonable.”).

Here, the City does not dispute that Hawthorne had a disability, and

Hawthorne does not dispute that he was physically unable, due to his disability, to

perform all of the job duties of a battalion chief, a position that was necessary to

the operation of the fire department. (Doc. 21 at 16 (“it put him on a regular 24-

hour shift, even though he could not perform the duties. (emphasis added)); Doc.

21 at 18 (“While he could not perform the full duty as Battalion Chief…”).)

From Hawthorne’s Complaint and his brief in opposition to the City’s

summary judgment motion, Hawthorne’s primary focus appears to be the City’s

unwillingness to provide him his desired accommodation; that is, a battalion chief

position that did not require typical duties of a battalion chief, but instead, clerical

duties in 8-hour daily shifts, or alternatively, a demotion to a captain’s position that

worked only during 8-hour shifts.2

2 In his deposition, Hawthorne testified that he discussed a possible demotion to an administrative captain position.

That is, Hawthorne specifically discussed swapping out for the training captain position that Bingham occupied.

Chief Whaley testified in his deposition that the department had an administrative captain position which handled

emergency medical system (EMS) administration and three training captain positions. Hawthorne does not

specifically discuss the other administrative captain position (as laid out by Whaley) in his brief as forming the basis

for his failure to accommodate claim. Instead, Hawthorne discusses the failure to transfer him to the captain position

that trains EMS personnel, occupied by Captain Bingham. Perhaps these “administrative captain” and “training

captain” positions are the same; nevertheless, the Court will only discuss the position which Hawthorne specifically

raised in his brief: the captain position that trains EMS personnel, which was occupied by Captain Bingham.

The City argues Hawthorne’s failure to accommodate claim fails because

there was no existing administrative battalion chief position into which Hawthorne

could be reassigned, nor was the City obligated to create such a position for him.

(Doc. 17 at 19-20; Doc. 21 at 20-21.) The City also argues that it was not

obligated to completely redesign Hawthorne’s battalion chief position into one that

virtually eliminated all of a battalion chief’s typical duties and reassigned duties

that were only clerical in nature. (Doc. 17 at 20-21; Doc. 21 at 21-22.)

1. Administrative Battalion Chief Position

As to the administrative battalion chief position, the City argues that no such

position existed at the time of the events made the basis of this suit and that it was

not obligated to create such a position for Hawthorne. Hawthorne responds by

stating that the City previously had placed employees in administrative battalion

chief positions and therefore could have done the same in his case. As further

evidence, Hawthorne points to Assistant Chief Owens’ statement to him that the

City was going to move Captain Josh Bingham into an administrative battalion

chief position upon Hawthorne’s retirement, (Doc. 21-1 at 28; Doc. 21-2 at 2), and

the fact that the City previously accommodated Hawthorne by reducing his job

duties to those of a clerical nature for the months following his motor vehicle

accident.

Undoubtedly, reassignment of a disabled employee is a required “reasonable

accommodation” under the ADA if there is a vacant position available. Willis v.

Conopco, Inc., 108 F.3d 282, 286 (11th Cir. 1997) (“Reassignment to another

position is a required accommodation only if there is a vacant position available for

which the employee is otherwise qualified.”) (citing 42 U.S.C. § 12111(9)(B)); see

also Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1104 (S.D. Ga. 1995) (“The

ADA . . . contains explicit language concerning the employer’s duty to consider

reassignment to a vacant position as a possible accommodation if the employee is

no longer able to perform the essential functions of his original job.”); Howell v.

Michelin Tire Corp., 860 F. Supp. 1488, 1492 (M.D. Ala. 1994) (“(I)f an employer

has a vacant light-duty position or a vacant permanent position for which the

disabled employee is qualified, it would be a reasonable accommodation to

reassign the employee to that position.”).

However, an employer is not obligated to “bump” another employee from a

position to accommodate a disabled employee. Lucas, 257 F.3d at 1256. Nor is an

employer required to create a new position for an employee. Boyle v. City of Pell

City, 866 F.3d 1280, 1289 (11th Cir. 2017); Sutton v. Lader, 185 F.3d 1203, 1210–

11 (11th Cir. 1999) (an employer “is under no obligation to hire an employee for a

non-existent job,” nor is it required to create a light-duty position for a disabled

employee).

Here, Hawthorne’s administrative battalion chief argument can be

characterized into two forms: first, that he could have been transferred into an

administrative battalion chief position, and second, the City could have reduced

and redefined his duties to only those that were clerical or administrative in nature.

In either case, it appears Hawthorne desired to retain the position or rank of

battalion chief, but largely wanted his job duties redefined as clerical or

administrative in nature.

As to the transfer into an administrative battalion chief position, Hawthorne

has failed to present sufficient evidence that there actually was an existing, vacant

administrative battalion chief position into which he could be transferred. A

random statement by another employee, without more, does not meet his burden.

See Frazier-White v. Gee, 818 F.3d 1249, 1256 (11th Cir. 2016) (“Plaintiff did not

support the request with any evidence that there was a specific, full-duty vacant

position she was qualified for and could have done, given her medical condition.”);

Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1224–25 (11th Cir. 1997) (“[T]he

issue of whether . . . a reasonable accommodation can be made for that employee is

determined by reference to a specific position.”). Indeed, Hawthorne

acknowledged in his deposition the nonexistence of this position at the time of his

accident. (Doc. 16-13 at 14.) In his summary judgment response, Hawthorne

makes no showing whatsoever that such a position existed in 2017 or 2018, let

alone that it was vacant and open to be filled. That such a position may have

existed years before does not mean that such a position existed at the time of the

events made the basis of this lawsuit. Because Hawthorne has failed to present

evidence of such a position into which he could be transferred, summary judgment

is due to be granted to the extent Hawthorne claims that the City should have

accommodated him by moving him into an administrative battalion chief position.

Second, Hawthorne cannot show that the City wrongfully failed to

accommodate him when the City refused his request to assign him job duties that

were strictly clerical or administrative in nature, such as when the City previously

accommodated his physical limitations while recovering from the injuries he

suffered in the traffic accident. The City notes that the post-accident

accommodation was not a position but instead was an amalgamation of temporary

duties (or busy work) compiled for Hawthorne while he recuperated after his

traffic accident. According to Hawthorne, this position was a job that he could

perform given his disability and clearly was available prior to Hawthorne’s on-the-

job injury. Therefore, according to Hawthorne, his placement into that position

should have posed no undue hardship upon the City on a permanent basis.

The City responds that this was no position at all, but instead was a good

deed performed by the City to temporarily keep Hawthorne busy and on the

payroll without exhausting his leave while he continued to recover. The City also

argues that previously allowing Hawthorne to temporarily work in that modified

capacity does not indicate the City violated the ADA by not offering this

accommodation a second time, especially when it gave Hawthorne an

accommodation greater than that required by the ADA. (Doc. 17 at 21.)

Past accommodations, which exceeded the requirements of the ADA, do not

bind an employer to anything outside the requirements of the ADA. See Holbrook

v. City of Alpharetta, Ga., 112 F.3d 1522, 1527 (11th Cir. 1997). This is because

“the ADA defines a qualified individual as one who ‘with or without reasonable

accommodation, can perform the essential functions of the employment position.’”

Holbrook, 112 F.3d at 1527 (quoting 42 U.S.C. § 12111(8)) (emphasis in original).

Therefore, here, the fact that the City previously accommodated Hawthorne

by removing all duties, except those clerical in nature, does not mean that the City

violated the ADA by refusing to remove these same duties at a later date. The City

was not obligated to indefinitely extend Hawthorne’s light-duty status; such a

request is unreasonable as a matter of law. E.g., Frazier-White v. Gee, 818 F.3d at

1256. The pertinent question is whether Hawthorne could perform the essential

duties of the battalion chief position with accommodation. Federal regulations

promulgated pursuant to the ADA expressly note that:

[a]n employer or other covered entity may restructure a job by

reallocating or redistributing non-essential, marginal job functions....

An employer or other covered entity is not required to reallocate

essential functions. The essential functions are by definition those that

the individual who holds the job would have to perform, with or

without accommodation, in order to be considered qualified for the

position.

29 C.F.R. Part 1630, Appendix at 344; see also Lucas, 257 F.3d at 1260 (“While it

is true that the ADA may require an employer to restructure a particular job by

altering or eliminating some of its marginal functions, employers are not required

to transform the position into another one by eliminating functions that are

essential to the nature of the job as it exists.”).

Hawthorne’s assertion that the City could have accommodated him by

returning him to the pre-work injury job does not pass muster under the ADA. But

Hawthorne’s claim is premised upon that very foundation. Hawthorne makes no

real attempt to assert, nor could he, that this accommodation would allow him to

perform the essential functions of the battalion chief job. Instead, his argument is

premised upon a complete restructuring of that position. This, the City was not

required to do. See Frazier-White, 818 F.3d at 1256 (“Defendant was not required

by the ADA to create a permanent light-duty position especially for Plaintiff.”)

(citing Sutton v. Lader, 185 F.3d 1203, 1211 (11th Cir.1999) (holding that the

Rehabilitation Act did not require an employer to create a light-duty position for a

disabled plaintiff)).

A reasonable accommodation is one that “enables the employee to perform

the essential functions of the job.” Lucas, 257 F.3d at 1259-60 (emphasis added).

That is not what Hawthorne proposes here. The proverbial “no good deed goes

unpunished” cannot be the foundation for liability under the ADA.

Accordingly, the City’s motion for summary judgment with respect to

Hawthorne’s failure to accommodate claim regarding the administrative battalion

chief position is due to be granted.

2. Reduced Shift Hours to Accommodate Sleep at Home

When he returned to work after his on-the-job accident, Hawthorne was

returned to a 24-hour shift at his station. This required him to sleep at the station

or, as he did prior to his disability, pay another battalion chief to cover some of his

shift hours. Hawthorne claims that he could not work the longer shift and could

not sleep in the bed at the station due to pain and discomfort, and therefore the City

should have accommodated him by requiring no more than 8-hour shifts which, in

turn, would allow him to sleep in his own bed at night. Hawthorne also claims

that, and Josh Brown confirmed, working only 8-hour shifts would not have

interfered with the operation of the fire department. (Doc. 21-9 at 10.)

The City responds, arguing that the 24-hour shift requirement was an

essential function of the job as battalion chief and that the City provided battalion

chiefs such as Hawthorne with high-quality, memory-foam beds—not cots—such

that there was no medical need for him to sleep at home. (Doc. 16-14 at 8-9, 10;

Doc. 17 at 22.) The City also argues that it previously allowed Hawthorne to work

a reduced shift only as a temporary accommodation while he recuperated from his

on-the-job injury but that this was never intended to become a permanent change.

(Doc. 17 at 20.)

Mandatory shift rotations are often considered an essential function of an

employee’s position, particularly in public service positions such as law

enforcement and hospitals. Mattingly v. University of South Florida Bd. Of

Trustees, 931 F. Supp. 2d 1176, 1183 (M.D. Fla. 2013) (citing cases); cf. Earl v.

Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir. 2000) (concluding that punctuality

is an essential job function because, inter alia, failure to be on time or work a full

shift would force other employees to work a longer shift). The Supreme Court has

supported this principle more broadly, finding that the operation of a neutral

scheduling system designed to meet the needs of all employees “cannot be an

unlawful employment practice even if the system has some discriminatory

consequences.” Trans Word Airlines, Inc. v. Hardison, 432 U.S. 63, 82 (1977).

The Court concludes that working a 24-hour shift is an essential function of

the battalion chief position within the City’s fire department. As Hawthorne

admits, the fire department required a battalion chief to be on-duty at all times, and

all battalion chiefs and most other fire department personnel worked 24-hour

shifts. As such, for Hawthorne to work only a daily 8-hour shift, compared to the

24-hour shifts required of all the other battalion chiefs, there would be a disruption

of the shift rotation of the other battalion chiefs who would have to cover

Hawthorne’s overnight hours in addition to their own, or alternatively, the City

would have had to hire an additional battalion chief. The Eleventh Circuit has

recognized that an employer is under no obligation to accommodate when the

outcome places such a burden on other employees or the employer. See Dalberiste

v. GLE Assocs., Inc., No. 20-11101, 2020 WL 2529752, at *1 (11th Cir. May 19,

2020) (affirming the district court’s grant of summary judgment to an employer in

a case where the district court reasoned that Dalberiste’s accommodations would

require other GLE technicians to bear an additional workload of an already

demanding job, force GLE to change its scheduling and work assignment

procedures, force GLE to incur additional costs to hire an additional employee, put

GLE's contract with the plant at risk, and affect Turkey Point's badging and

security procedures).

Hawthorne argues that the 24-hour shift is not an essential battalion chief job

function as evidenced by the fact that, prior to his injuries, he could pay other

employees to cover his hours. However, that does not lessen the essential nature of

these work hours. When he paid another employee to cover for him, that scenario

clearly required a voluntary agreement between Hawthorne and the employee and

was at Hawthorne’s own expense. If he could not find voluntary coverage,

Hawthorne had to complete his entire shift himself. That is an entirely different

scenario from Hawthorne’s proposal which would forcefully require another

employee to cover for him with no benefit to the employee and at no cost to

Hawthorne.

In short, the battalion chief position was a 24-hour position that all battalion

chiefs were required to cover, and as such, working a 24-hour shift was an

essential function of the position. The City is therefore entitled to summary

judgment on Hawthorne’s ADA claim to the extent Hawthorne claims there was an

ADA violation stemming from the City’s refusal to allow him to work an 8-hour

shift as a battalion chief.

The City is also entitled to summary judgment concerning the alleged failure

to accommodate Hawthorne regarding his station bed. This accommodation

request is intertwined with Hawthorne’s request to work only 8-hour shifts so that

he could sleep at home at night in his own bed. While the parties spend

considerable time arguing about whether Hawthorne’s physician ordered or

recommended that Hawthorne sleep in a normal bed, not “cot” (thereby inferring

that he should sleep at home), lost in the parties’ argument is whether Hawthorne

ever asked for an accommodation at the station of a bed that would satisfy his

alleged medical needs. The City argues that Hawthorne had available to him a bed

with a memory-foam mattress, not a cot. Hawthorne does not really challenge this

assertion, nor does he provide any argument or reason as to why a memory-foam

bed was medically insufficient. And, if it was medically necessary, Hawthorne

makes no assertion that he requested one at the station. Instead, Hawthorne’s

argument somewhat melts into his fallback position that he should have been

permitted to work an 8-hour shift and sleep at home at night.

Hawthorne has the burden of proof on this issue and based on the record and

argument, the Court concludes that Hawthorne has not stated a prima facie claim

on this issue. While sleeping at home in his own bed may be a preferable option to

Hawthorne, as it was prior to his disabling injuries, the ADA does not require that

he be provided the accommodation he finds most desirable. See Stewart, 117 F.3d

at 1286 (“[U]nder the ADA a qualified individual with a disability is ‘not entitled

to the accommodation of her choice, but only to a reasonable accommodation.’”).

3. Administrative Captain Position

Hawthorne also claims the City could have demoted him into an

administrative captain position as a means of accommodating his disability. The

City disputes this assertion, arguing that Hawthorne would not have been

physically able to perform the training captain position and that it was under no

obligation to bump another employee in order to make it available to Hawthorne.

(Doc. 17 at 9, 14.)

Hawthorne cites to the statements of Assistant Chief Whaley who told him

there was an administrative captain position that handled emergency medical

system (EMS) administration, as well as three training captain positions, in the fire

department. (Doc. 21-6 at 5-6.) However, Hawthorne has not shown that he could

perform the essential functions of these positions, let alone that these positions

were open and available.

In his summary judgment response, Hawthorne does not point to any

evidence that any of the captain positions were actually open and available.

Instead, he points to the training captain position occupied by Captain Bingham.

(Doc. 16-13 at 17.) However, Hawthorne admits that, at the time, the training

captain position was occupied by Captain Bingham, and therefore Captain

Bingham would have to be bumped from that position for Hawthorne to get it.

(Id.) Presumably, Hawthorne claims that he should have been demoted to Captain

Bingham’s position when Captain Bingham was promoted to Hawthorne’s

battalion chief position. (Doc. 16-14 at 5.) But even in that scenario, Hawthorne

fails to present any evidence that he actually asked to be demoted into that

position. His words show the opposite; after all, his deposition testimony and

summary judgment briefs repeatedly display his animosity toward anything that

resulted in or could be perceived as a demotion in title or position. (See, e.g., Doc.

21 at 24-25.)

But even as to that lower-ranked position, Hawthorne admits that he could

not perform the essential functions of the training captain position, for the same

reasons he could not perform the functions of his own battalion chief position.

(Doc. 16-13 at 17.) For example, paramedic training captains have to, among other

things, move a 160-pound mannequin, a task that Hawthorne admittedly could not

perform due to his disability. (Id.) This, of course, is separate from the problematic

issue for Hawthorne that captains also must work 24-hour shifts.

The training captain positions aside, in theory, Hawthorne might have been

able to perform an administrative captain position. The ADA requires an employer

to reassign a disabled employee to a vacant position if the employee is qualified for

that position. See Willis, 108 F.3d at 284 (citing 42 U.S.C. § 12111(9)(B)).

However, the employee must make an effort to identify the vacant position for

which he is qualified: “(e)ven assuming an employer has an affirmative

obligation—absent an employee's suggestion for a specific accommodation—to

engage in the interactive process . . . where a plaintiff cannot demonstrate

reasonable accommodation, the employer’s lack of investigation into reasonable

accommodation is unimportant.” Willis, 108 F.3d at 285 (citing Moses v. American

Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir. 1996)).

Hawthorne’s claimed discussions with the City about the demotion revolved

around the training captain position and potentially swapping with Captain

Bingham. Hawthorne does not offer in his brief opposing summary judgment that

he specifically discussed the other administrative captain position mentioned

separately by Chief Whaley, but only mentions the training captain position held

by Captain Bingham, which Hawthorne himself admitted he could not perform.

“(A)n employer's ‘duty to provide a reasonable accommodation is not triggered

unless a specific demand for an accommodation has been made.’” Frazier-White,

818 F.3d at 1255–56 (quoting Gaston v. Bellingrath Gardens & Home, Inc., 167

F.3d 1361, 1363–64 (11th Cir. 1999) (“[T]he initial burden of requesting an

accommodation is on the employee. Only after the employee has satisfied this

burden and the employer fails to provide that accommodation can the employee

prevail on a claim that her employer has discriminated against her.”)).

The Court is not obligated to make arguments for Hawthorne not mentioned

in his brief opposing summary judgment. E.g., Resolution Trust Corp. v. Dunmar

Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the district

court to distill every potential argument that could be made based upon the

materials before it ....”). Hawthorne has not offered that an administrative captain

position was vacant at the time he requested to be reassigned, and the only

(potentially) vacant captain position that he identifies is a position he could not

physically perform. Thus, largely for the same reasons that the City is entitled to

summary judgment on Hawthorne’s failure to accommodate claim relating to an

administrative battalion chief position, the City is also entitled to summary

judgment concerning the administrative-training captain position.

B. Age Discrimination (Count II)

Count II alleges the same general adverse employment actions, but alleges

that they resulted from age discrimination in violation of the ADEA. In particular,

Hawthorne claims the City violated the ADEA when it denied his request to

transfer to an administrative battalion chief position under the pretext that the

position was not going to be filled, when in reality the position was being held for

a younger employee, Captain Josh Bingham. (Doc. 1 at 9.) Hawthorne also

contends he was discriminated against when he was replaced as battalion chief by a

younger employee, Josh Brown. (Id.)

In its Motion, the City makes two arguments for why it is entitled to

summary judgment on Hawthorne’s ADEA claim. First, the City argues that

Hawthorne cannot show that age was the “but for” cause of his claimed adverse

employment actions (failure to transfer and replacement as battalion chief). (Doc.

17 at 13.) The City next asserts in the alternative that Hawthorne cannot establish

a prima facie case of age discrimination through an actionable adverse employment

action, that he suffered disparate treatment because of his age, and that the City’s

proffered non-discriminatory reasons for its employment actions were pretext for

illegal discrimination based on age. (Doc. 17 at 14-15.) The Court will address

each of these arguments in turn.

1. Age as the “But For” Cause of Hawthorne’s Alleged

Disparate Treatment

Under the ADEA, it is “unlawful for an employer to ... discharge any

individual or otherwise discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s age.” 29 U.S.C. § 623(a)(1). The Supreme Court has held that the

“because of” language in the ADEA statute means that a plaintiff must show that

age discrimination was the “but-for” cause of the adverse employment action. See

Gross v. FBL Financial Services, 557 U.S. 167, 176 (2009) (“To establish a

disparate-treatment claim under the plain language of the ADEA, therefore, a

plaintiff must prove that age was the ‘but-for’ cause of the employer’s adverse

decision.”). The ADEA does not authorize “a mixed-motives age discrimination

claim.” Id. at 175.

Following the Gross decision, courts in this Circuit have disagreed on

whether the Supreme Court foreclosed a plaintiff’s ability to simultaneously pursue

claims under the ADEA and another anti-discrimination statute for the same

employment decision. Compare Culver v. Birmingham Bd. Of Educ., 646 F. Supp.

2d 1272 (N.D. Ala. 2009) (“Prior to Gross, it was permissible to allege alternative

proscribed employer motives, one of which is plaintiff’s age. That permission has

now been withdrawn by the Supreme Court.”), with McQueen v. Wells Fargo

Home Mortg., 955 F. Supp. 2d 1256, 1284 (N.D. Ala. 2013) (holding that “under

the ADEA, the plaintiff can allege that the alleged discriminatory acts were

committed both because of her age and race”).

The Eleventh Circuit recently examined this issue in an unpublished opinion,

ruling that because Federal Rule of Civil Procedure 8(d) “expressly permits the

pleading of alternative and inconsistent claims,” plaintiffs are permitted to pursue

ADEA claims along with other claims for unlawful discrimination that stem from

the same conduct. Savage v. Secure First Credit Union, No. 15-12704, 2016 WL

2997171, at *1 (11th Cir. May 25, 2016) (citation omitted). Procedurally, Savage

was at the motion to dismiss stage and not the summary judgment stage, and for

that reason, some district courts continue to hold that multiple “but for”

employment discrimination claims may not proceed past summary judgment. See,

e.g., Jones v. Allstate Ins. Co., 281 F. Supp. 3d 1211, 1217 (N.D. Ala. 2016)

(“[S]ummary judgment stands as a bulwark against multiple ‘but-for’ claims

beyond even the broadest reading of Rule 8 alternative pleading.”).

Hawthorne argues the Eleventh Circuit in Savage expressly permitted such

alternative theory pleading. The City counters that Savage procedurally was at the

motion to dismiss stage and therefore not subject to the evidentiary roadblock

posed at summary judgment, as is this case.

While a plaintiff may recover only once for a given adverse action, he may

assert different prohibited motives for it. At the summary judgment stage, the

Court is to analyze each claim independently under the applicable causation

standard to assess whether sufficient evidence supports each of the plaintiff’s

claims. Nothing argued by the City convinces this Court that a plaintiff cannot

simultaneously pursue an ADA and ADEA claim past the summary judgment stage

and at trial, especially in light of the Savage decision. The dilemma for a plaintiff

in advancing alternative pleading arises only when a jury returns a verdict in favor

of a plaintiff under both claims. That quandary, however, is not before the Court at

present. Therefore, the City is not entitled to summary judgment on Hawthorne’s

ADEA claim purely on the basis that Hawthorne also continues to advance an

ADA claim for the same adverse employment actions.

2. Hawthorne’s Prima Facie Case Under the ADEA

Hawthorne’s ADEA claim largely mimics his ADA claim in that he argues,

in the alternative, that if he was not given an administrative battalion chief position

because of his disability, then it must have been because of his age. (Doc. 21 at

19-21.) Hawthorne claims this was discriminatory based on age because a City

employee told him the position was not going to be filled by anyone, but in reality,

it was being held for Captain Bingham (a younger employee) once Hawthorne

retired. (Doc. 21 at 20.) Among others, Hawthorne points to deposition testimony

of other employees who testified that the City had an administrative battalion chief

position in the past, that the City had budgeted for five battalion chief positions but

only had four of those filled, and that his supervisors generally were unaware that

Hawthorne had requested to be placed in such a position. Therefore, according to

Hawthorne, the City’s statement that it did not have such a position was pretextual.

Hawthorne also claims he was replaced as battalion chief by Captain Josh

Brown and was forced to take workers’ compensation leave, and therefore

Hawthorne was treated less favorably than Brown. (Doc. 21 at 20.) According to

Hawthorne, therefore he “can show that he did ask for the administrative battalion

chief position and also that he can present a comparator.” (Doc. 21 at 21.)

Like it did with the ADA claim, the City argues that it is entitled to summary

judgment on Hawthorne’s ADEA claim because (1) there was no open

administrative battalion chief or captain position into which he could transfer,

(Doc. 16-13 at 6, 14, 17); (2) Hawthorne could not perform the duties of a training

captain, (Doc. 16-13 at 17); and (3) Hawthorne was not permanently replaced as a

battalion chief by a younger employee, (Doc. 17 at 14; Doc. 16-13 at 42). The

City also argues that Hawthorne was not subjected to an adverse employment

action based on his age, that he was not qualified for the job of battalion chief

because he could not perform the essential functions of the job, that he could not

show any more favorable treatment toward a younger, similarly situated person,

that he cannot establish that the City’s reasons for its handling of his

accommodations were pretext to mask unlawful age discrimination, and that his

decisionmaker was over age 40 (and older than Hawthorne), and therefore the City

could not discriminate against Hawthorne based on age. (Doc. 17 at 16-17.)

The City also points out that, as to the administrative battalion chief

position, the City never put Captain Bingham into such a position. (Doc. 17-13 at

42.) Thus, Hawthorne cannot prove that the City discriminated against him based

on age when he cannot show that the City gave the desired position to a younger

person. (Doc. 23 at 6.)

As to being replaced by Brown, a younger person, as battalion chief, the

City points out that Hawthorne admittedly could not fulfill the duties of the

position because of his disability and that someone, regardless of his or her age,

had to fill the position. (Doc. 23 at 6.) That the replacement happened to be

younger is irrelevant. Regardless, the City notes that Hawthorne remained as

battalion chief with the same rank and pay, but that the only change was in regard

to his duties. (Doc. 16-13 at 9.)

Under the framework created in McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), Hawthorne must first establish a prima facie case of age

discrimination by showing that he was (1) a member of the protected age group,

(2) subjected to an adverse employment action, (3) qualified to do the job, and (4)

replaced by a younger individual or suffered disparate treatment compared to

employees who were not members of his protected class. Kelliher v. Veneman, 313

F.3d 1270, 1275 (11th Cir. 2002) (deciding case brought under both Title VII and

the ADEA under the same standard); Williams v. Vitro Servs. Corp., 144 F.3d

1438, 1441 (11th Cir. 1998).

If a plaintiff meets that prima facie burden, the employer then has the burden

of production to articulate some “legitimate nondiscriminatory reason” for its

conduct. Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1223 (11th Cir. 1993). Once

the employer offers a justification, the plaintiff must show that the employer’s

proffered reason for its actions is pretextual and that the employer did in fact

intend to discriminate. Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir. 2013).

To begin, there is no dispute that Hawthorne falls into a protected age group,

as Hawthorne was over 50 years old at the time of the events made the basis of this

lawsuit. The City, however, challenges Hawthorne’s ability to meet the other three

factors of his prima facie case.

The first challenge is to Hawthorne’s burden to show an adverse

employment action. An adverse employment action under the ADEA is “a serious

and material change in the terms, conditions, or privileges of employment.” Coles

v. Post Master Gen. United States Postal Servs., 711 F. App’x 890, 895 (11th Cir.

2017) (per curiam) (citing Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d

1179, 1193–94 (11th Cir. 2016) (abrogated on other grounds by Babb v. Wilkie,

140 S. Ct. 1168 (April 6, 2020)). To establish this element, a plaintiff must show

that “the employer’s action . . . impact[ed] . . . the plaintiff’s job in a real and

demonstrable way.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir.

2001), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53 (2006). In addition, “the employment action must be materially

adverse as viewed by a reasonable person in the circumstances” not just from the

employee’s subjective perspective. Id. Stated another way, “a ‘bruised ego’ is

simply not enough to constitute an adverse employment action.” Mitchell v.

Vanderbilt Univ., 389 F.3d 177, 182 (6th Cir. 2004) (citation omitted); see also

Flaherty v. Gas Research Inst., 31 F.3d 451, 457 (7th Cir. 1994) (“a plaintiff's

perception that a . . . transfer would be personally humiliating is insufficient,

absent other evidence, to establish a materially adverse employment action”); cf.

Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1449 (11th Cir. 1998) (“not

everything that makes an employee unhappy is an actionable adverse action.”).

Here, Hawthorne states that a reasonable person “might well have been

prevented from filing a charge of discrimination if he knew he was going to be

treated in the horrible manner the City treated Mr. Hawthorne, after his 27 years of

service.” (Doc. 21 at 24.) Apparently, this horrific treatment included the City’s

promotion of Captain Bingham to Hawthorne’s battalion chief position and

assignment to Hawthorne’s office, having Hawthorne answer to Captain Bingham

and Brown despite Hawthorne having seniority in rank over them, being required

to work a 24-hour shift instead of being allowed to go home and sleep in a familiar

bed, being required to perform administrative work at his station, not being

allowed to drive department vehicles, being forced to work in a cold and hostile

work environment, and forcing him home on workers’ compensation leave at a

reduced income rate. (Doc. 21 at 24-25.)

Most of these so-called adverse employment actions are not actionable.

First, to the extent that the complained-of adverse employment action stems from

the City’s alleged failure to transfer Hawthorne to an administrative battalion chief

position from his normal battalion chief position, Hawthorne cannot meet this

prima facie element because, as the Court previously discussed, there was no

administrative battalion chief position into which Hawthorne could transfer. See

Johnson v. Potter, 732 F. Supp. 2d 1264, 1280 (M.D. Fla. 2010) (“Failure to

promote is generally an adverse action but not if there is no open position.”)

(emphasis added) (citation omitted). Similarly, Hawthorne fails show that there

was a vacant captain position into which he could transfer.

Moreover, the City’s failure to transfer (or demote) Hawthorne to a lesser

position does not constitute a harmful change in terms, conditions, or privileges of

employment. Instead, the failure maintained the status quo, except for the City’s

refusal to grant Hawthorne a desired reduction in responsibilities. In other words,

Hawthorne makes no assertion that he was denied an increase in salary, title, or

responsibilities. See Gaddis v. Russell Corp., 242 F. Supp. 2d 1123, 1145 (M.D.

Ala. 2003) (in order to state a prima facie case for discrimination, “the position to

which the employee was denied a transfer, must entail a serious and material

change in the terms, conditions, or privileges of employment.”); Smith v. Alabama

Dep’t of Corr., 145 F. Supp. 2d 1291, 1298 (M.D. Ala. 2001) (“The flip side of

this coin would appear to be that a failure to transfer may constitute an adverse

employment action if [the new position] entails an increase in pay, prestige or

responsibility.”) (quoting Morris v. Wallace Comm'y College, 125 F. Supp. 2d

1315, 1328 (S.D. Ala. 2001)).

Hawthorne also claims that he was discriminated against by way of joking

remarks made to him by his co-workers. While this assertion sounds more like a

hostile work environment claim based on age, which Hawthorne has not pleaded in

his Complaint, this assertion easily fails for lack of a tangible impact on the terms

and conditions of employment. But even if a hostile work environment claim was

asserted, the record does not reveal the type of severe and pervasive harassment, or

a workplace “permeated with intimidation, ridicule or insult” based on age,

necessary to support such a claim. See Barrow v. Ga. Pac. Corp., 144 F. App'x 54,

57 (11th Cir. 2005) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

Conversely, a termination or change in employment would constitute an

adverse employment action. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir.

2008) (adverse employment actions include “ultimate employment decisions . . .

such as termination, failure to hire, or demotion”). Although Hawthorne does not

clearly state it, he apparently claims that he was constructively discharged when

Captain Bingham was transferred into Hawthorne’s battalion chief position and

when Hawthorne was pushed out by being forced to take workers’ compensation

leave. The Court will assume that Hawthorne meets this prima facie element with

respect to this employment action, as there should be no real dispute that being

forced out of a fully-salaried job for workers’ compensation leave at a reduced rate

of pay constitutes an actionable adverse employment action.

Although Hawthorne may be able to show that his forced workers’

compensation leave was an adverse employment action, and that he was replaced

by a younger person (Captain Bingham), Hawthorne cannot meet the third prima

facie element establishing that he was qualified to perform the job of a battalion

chief. Liebman v. Metropolitan Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir.

2015) (“To make a prima facie case of age discrimination, the employee must

show: . . . (4) he was qualified to do the job from which he was discharged.”)

(citing Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)).

As to this element, even Hawthorne admits that he could not perform the job duties

of a battalion chief—or, for that matter, the training captain position that Captain

Bingham held—due to his disability. This admission alone precludes this claim

from going forward.

Hawthorne’s admitted inability to perform the job duties of a battalion chief

also serves as a legitimate, non-discriminatory reason for Hawthorne’s termination,

if his separation is characterized as such. See Steger v. Gen. Elec. Co., 318 F.3d

1066, 1074 (11th Cir. 2003) (quoting O’Connor v. Consol. Coin Caterers Corp.,

517 U.S. 308, 311 (1996) (Once a plaintiff demonstrates a prima facie age

discrimination case, the defendant has the burden “to articulate a ‘legitimate, non-

discriminatory reason’ for its employment decision.”)). This burden is

“exceedingly light.” Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir.

1994) (quoting Meeks v. Comput. Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir.

1994)); see also Phillips v. Aaron Rents, Inc., 262 F. App’x 202, 205–10 (11th Cir.

2008) (per curiam) (tardiness constitutes a legitimate, non-discriminatory reason

for termination).

Once an employer offers a legitimate, non-discriminatory reason, the burden

shifts to the plaintiff to show that this suggested reason is merely a pretext for

unlawful age discrimination. Chapman, 229 F.3d at 1024–25. The plaintiff may do

this by identifying “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could find them unworthy of credence.”

Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (citation and

internal quotation omitted). Importantly, a plaintiff cannot “simply quarrel[ ] with

the wisdom of [the employer’s] reason” but “must meet that reason head on and

rebut it . . . .” Chapman, 229 F.3d at 1030. In other words, summary judgment is

appropriate in a discrimination case where the plaintiff fails to “set[ ] forth specific

facts showing” a genuine issue exists as to whether the employer’s articulated

reason is pretextual. Mauter v. Hardy Corp., 825 F.2d 1554, 1558 (11th Cir. 1987).

Hawthorne has failed to carry that burden.

Here, Hawthorne does little to rebut the City’s showing. Indeed,

Hawthorne’s efforts to prove his ADA claim all but sink his age discrimination

claim, as even Hawthorne must admit that his alleged termination was based on his

inability to perform his job due to his disability, and not because of his age. Under

the “but for” analysis that must be employed regarding Hawthorne’s ADEA claim,

and given his admission that he could not perform the job of a battalion chief or a

training captain, his age discrimination claim must therefore fail.

C. ADA Retaliation

Hawthorne claims in Count III that he was retaliated against for retaining

legal counsel and filing an EEOC charge in May 2018 when (1) his name was

removed from the duty roster in August 2018; (2) Captain Bingham was promoted

to Hawthorne’s battalion chief position forcing Hawthorne to report to a junior

rank employee; (3) he was placed on 24-hour shifts without a legitimate reason and

was not allowed to go home at night; (4) he was not permitted to drive a

department vehicle; (5) he was required to use leave if he wanted to go home; (6)

he was forced out on workers’ compensation leave; and (7) he was subjected to a

cold and hostile work environment. (Doc. 1 at 11-12.)

The City argues that it is entitled to summary judgment because these claims

are merely “reclothing” of his discrimination claims and because the retaliation

claims are due to be dismissed for the same reasons as the discrimination claims.

(Doc. 17 at 23.) The City also argues that none of Hawthorne’s complained-of

retaliatory actions constitute actionable adverse employment actions, (Doc. 17 at

24), and that they are too temporally distant from when Hawthorne filed his EEOC

charge, (Doc. 17 at 25).

In order to prove an ADA retaliation claim, a plaintiff must show that: (1) he

“engaged in conduct protected by the ADA”; (2) he “was subjected to an adverse

employment action at the time, or after the protected conduct took place”; and (3)

the defendant “took an adverse employment action against [him] because of [his]

protected conduct.” Collado v. United Parcel Serv., Co., 419 F.3d 1143, 1158

(11th Cir. 2005) (citing 3C Fed. Jury Prac. & Instr. § 172.24 (5th ed.)). The City

argues that Hawthorne’s omission from the duty roster is irrelevant since the roster

is merely a “guide” for chiefs on shift; that he was assigned to report to Captain

Bingham three months after filing the complaint; that the “swapping” policy was in

use prior to his injury, a policy that he utilized frequently to go home and sleep

there; that he was not allowed to drive a City vehicle because he was assigned to a

desk position and there was only one vehicle per station; that he admitted that he

was unable to work and did not question the City’s decision to send him home on

disability; and that any “teasing” was not attributable to the City and was offhand

and unserious. (Doc. 17 at 24-25.)

First, many of the allegedly retaliatory actions of which Hawthorne

complains do not rise to the level of actionable adverse employment actions, if

they were employment actions at all, because these actions do not constitute

serious and material changes in the terms, conditions, or privileges of employment.

Davis, 245 F.3d at 1238. These include the allegations that (1) Hawthorne’s name

was removed from the duty roster in August 2018; (2) he was forced to report to an

inferior ranked employee who was serving as acting battalion chief; and (3) he was

not permitted to drive department vehicles. See, e.g., Miller-Goodwin v. City of

Panama City Beach, Fla., 385 F. App’x 966, 970 (11th Cir. 2010) (concluding that

being ignored and not being allowed to drive her patrol vehicle unless on duty

were not actionable because they were not shown to have constituted a serious and

material change in the terms, conditions or privileges of employment); Smith v.

Alabama Dept. of Public Safety, 64 F.Supp.2d 1215, (M.D. Ala. 1999)(citing

Flaherty v. Gas Research Institute, 31 F.3d 451, 457 (7th Cir. 1994)(holding that a

transfer causing plaintiff's title to be changed and resulting in the plaintiff having to

report to a former subordinate may have bruised the plaintiff's ego, but did not

constitute adverse employment action)).

Still, the following events could, on their face, be considered actionable

adverse actions: (1) when Hawthorne was placed on 24-hour shifts without a

legitimate reason and was not allowed to go home at night; (2) when he was

required to use leave if he wanted to go home; (3) when he was forced home on

workers compensation; and (4) when he was subject to a hostile work environment.

See Sharpe v. Glob. Sec. Int’l, 766 F. Supp. 2d 1272, 1293 (S.D. Ala. 2011)

(employee’s reassignment involving “a substantial increase in physical demands”

met standard for adverse employment action); Braswell v. Allen, 586 F. Supp. 2d

1297, 1306 (M.D. Ala. 2008) (shift transfer could constitute an adverse

employment action if the transfer resulted in a tangible harm); Monaghan v.

Worldpay US, Inc., 955 F.3d 855, 860 (11th Cir. 2020) (“retaliatory harassment” is

cognizable adverse employment action for purposes of a Title VII retaliation

claim); see also Taylor v. Roche, 196 F. App'x 799, 803 (11th Cir. 2006) (adverse

action where Air Force weapons inspector was denied return to shift he previously

worked before serving abroad in order to take his children to school and avoid a

“tense environment”); Terrell v. Paulding Cty., 539 F. App'x 929, 934 (11th Cir.

2013) (Even if plaintiff’s hostile work environment allegations were generally an

actionable adverse employment action, “[m]ere ostracism in the workplace is not

grounds for a retaliation claim . . . .”) (citation omitted); cf. McNely v. Ocala Star-

Banner Corp., 99 F.3d 1068, 1078 (11th Cir. 1996) (reassignment to post where

tasks were difficult for a person of plaintiff’s condition to perform constituted an

adverse employment action); Williams-Evans v. Advance Auto Parts, Inc., No. CV-

118-148, 2020 WL 501752, at *6 (S.D. Ga. Jan. 30, 2020) (Plaintiff’s doctor

ordered plaintiff to leave her job and take workers’ compensation, not her

employer; therefore employer did not engage in an adverse action for forcing the

plaintiff to take workers’ compensation).

As to the requirement that Hawthorne work 24-hour shifts instead of the 8-

hour shifts that he desired, this is not actionable under the facts in this case because

the 24-hour shift length was a recognized job duty for the position that Hawthorne

held—as it was for all battalion chiefs. Hawthorne cannot transform what he

claims is an obligation to accommodate into an ADA retaliation claim for failure to

give it to him. See Holbrook, 112 F.3d at 1528 (prior accommodations outside of

ADA requirements can be ended by employer). In other words, this assertion is

nothing more than an attempt by Hawthorne to reclothe his failure-to-

accommodate claim as one for retaliation, especially because he was required to

work a 24-hour shift prior to his disability. See Williams-Evans, 2020 WL 501752,

at *6 (“the ADA considers a failure-to-accommodate claim a claim for

discrimination and not retaliation.”) (citing Pagonakis v. Express LLC, 315 F.

App'x 425, 431 (3rd Cir. 2009) (a failure-to-accommodate theory “cannot be

characterized as a retaliation claim under the ADA. The claim is a direct

discrimination claim based on alleged failures to fulfill the affirmative duties

prescribed by the ADA.”) (citing in turn U.S. Airways, Inc. v. Barnett, 535 U.S.

391, 396 (2002) (interpreting the ADA's discrimination provision, 42 U.S.C. §

12112(b)(5)(A), as including failures to accommodate)).

The same holds true of Hawthorne’s assertion that he suffered an adverse

employment action through the City’s insistence that he use leave if he wanted to

go home instead of completing his 24-hour shift. The City’s action in this regard

was nothing more than an insistence that Hawthorne comply with a city policy that

applied to all battalion chiefs, not just Hawthorne. Furthermore, this assertion too

is nothing more than an attempt to reclothe a failure to accommodate claim into a

retaliatory adverse employment action, something which, as previously stated, he

cannot do. No reasonable worker would be dissuaded from making or supporting a

charge of discrimination because an employer insisted that the worker perform the

requirements inherent in the job in the first place.

Hawthorne also claims it was retaliatory for the City to force him to take

workers’ compensation leave. The Court concludes that this action is an adverse

employment action as it constituted an indefinite leave from work at a reduced rate

of compensation.3 See Herron-Williams v. Alabama State Univ., 287 F. Supp. 3d

1299, 1311 (M.D. Ala. 2018), aff’d, Herron-Williams v. Alabama State Univ., 805

F. App'x 622 (11th Cir. 2020) (A significant pay cut, about seventeen-percent of

the salary the plaintiff was receiving before the pay cut, “is a quintessential adverse

employment action.”).

The City argues that this action occurred nearly three months after

Hawthorne’s complaints of discrimination and therefore is not temporally

proximate to show that they are causally related. (Doc. 17 at 25.) Causal relation

based on temporal proximity must be very close, and in the Eleventh Circuit,

periods generally in excess of one month have been held insufficient to meet that

burden. See Williams v. Waste Mgmt., Inc., No. 10–13121, 2011 WL 207932, at

*3 (11th Cir. 2011) (two months is insufficient); Herron-Williams, 805 F. App'x

622, at *9 (not enough temporal proximity to establish causal connection for

retaliation claim where plaintiff employee filed EEOC charge in March, employer

responded to EEOC in July, and employee’s pay was reduced in September of the

same year); Thomas v. CVS/Pharmacy, 336 F. App'x 913, 915 (11th Cir. 2009)

(per curium) (three-and-a-half months is too remote to infer causation); cf.

Robinson v. LaFarge N. Am., Inc., 240 F. App'x. 824, 829 (11th Cir. 2007)

3 Under the Alabama Workers’ Compensation Act, an employee on workers’ compensation leave is only

entitled to a rate of indemnity equal to 2/3 of his normal average weekly wage. ALA. CODE (1975) § 25–

5–57.

(causation sufficiently alleged where adverse action occurred about two months

after protected activity); Stone v. Geico Gen. Ins. Co., 279 F. App'x 821, 824 (11th

Cir. 2008); Locascio v. BBDO Atlanta, Inc., 56 F. Supp. 3d 1356, 1370-71 (N.D.

Ga. 2014) (sufficient proximity where plaintiff complained about discriminatory

conduct in mid-July, was reassigned to “new business” sometime in August, and

was terminated from employment in September, all in the same year).

In this case, Hawthorne notified the City of a potential EEOC complaint on

May 25, 2018 and filed his charge on June 19, 2018. (Doc. 21 at 22.) He was

required to take workers’ compensation on August 15, 2018. (Doc. 21 at 25.) As

this Court has noted before, it is sometimes difficult in a retaliation “temporal

proximity” analysis to determine whether a month and a half or two months

between an employee’s protected conduct and an employer’s adverse action “is too

hot, too cold, or just right,” when the doctrine itself is based in part on a “post hoc

ergo propter hoc” logical fallacy. E.g., Dixon v. Nat'l Sec. of Alabama, Inc., No.

2:18-CV-00013-RAH, 2020 WL 2312816, at *18–19 (M.D. Ala. May 8, 2020).

But even if Hawthorne’s protected conduct is close enough in time to infer a

causal connection, he still has to show that his protected conduct was the “but-for”

cause of him having to take leave. See Herron-Williams, 805 F. App'x 622, 633

(citing Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013) (“But

there can be no doubt after Nassar that, in order to survive summary judgment and

be entitled to a jury trial, there must be a genuine dispute as to whether the

protected activity was a but-for cause of the adverse employment action.”).

Hawthorne offers no argument whatsoever as to how his lawyers’ communications

to the City and his subsequent EEOC charge were the but-for cause of him being

sent home on workers’ compensation months later.

Thus, Hawthorne’s failure to otherwise dispute the City’s legitimate,

nondiscriminatory basis for this employment action proves fatal to this claim.

Here, the City based its decision on the fact that Hawthorne’s doctors continued to

prescribe a significantly reduced workload and the City’s belief that his new injury

was worse than was initially believed, (Doc. 16-15 at 8-9), neither of which

Hawthorne disputes in his opposition brief. See Case v. Eslinger, 555 F.3d 1317,

1329 (11th Cir. 2009) (A party “cannot readily complain about the entry of a

summary judgment order that did not consider an argument they chose not to

develop for the district court at the time of the summary judgment motions.”).

Without more, Hawthorne cannot establish the requisite causal link to defeat

summary judgment. See Herron-Williams, 805 F. App'x at 633.

Finally, Hawthorne’s assertion that he was teased by his co-workers is

nothing more than a claim for a retaliatory hostile work environment. The Supreme

Court has held that, in a retaliation action, an employee must allege “that a

reasonable employee would have found the challenged action materially adverse.”

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). The Supreme

Court clarified that a materially adverse action was one that “well might have

dissuaded a reasonable worker from making or supporting a charge of

discrimination.” Id. (internal quotation marks omitted). Yet in some cases, a hostile

work environment can qualify. See Monaghan, 955 F.3d at 860.

The Court also finds that Hawthorne’s miscellaneous claims to teasing do

not as a whole amount to actionable harassment that “well might have dissuaded a

reasonable worker from making or supporting a charge of discrimination.”

Monaghan, 955 F.3d at 861 (quoting Burlington Northern, 548 U.S. at 68).

Though the standard is somewhat less strenuous for a retaliation claim, Hawthorne

still has not asserted conduct by the City, or even by coworkers, that rises to a

sufficient level to be actionable. He has not alleged, for example, statements from a

supervisor which threatened termination, or any comments by fellow employees

specifically regarding his age or injury. See Monaghan, 955 F.3d at 863. On the

contrary, Hawthorne only obliquely refers to ribbing from other employees about

his possible retirement given his absence from the duty roster. These are the

quintessential “petty and trivial” perceived slights that are not actionable even

under the relaxed standard set forth in Burlington Northern. See Crawford v.

Carroll, 529 F.3d 961, 973, n.13 (11th Cir. 2008) (citing Burlington Northern, 548

U.S. at 70-73). Therefore, the City is due summary judgment on Hawthorne’s

ADA retaliation claim.

V. CONCLUSION

For the foregoing reasons, the City’s Motion for Summary Judgment (Doc.

16) is due to be GRANTED.

DONE, this 2nd day of October, 2020.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE