Equal Employment Opportunity Commission v. Allstate Beverage Company, LLC

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

EQUAL EMPLOYMENT )

OPPORTUNITY COMMISSION, )

)

Plaintiff, )

)

v. ) CASE NO. 2:19-CV-657-WKW

) [WO]

ALLSTATE BEVERAGE )

COMPANY, LLC, )

)

Defendant. )

MEMORANDUM OPINION

The Equal Employment Opportunity Commission (EEOC) brings this lawsuit

on behalf of Jimmy Freeman against his former employer, Allstate Beverage

Company, LLC (Allstate), alleging violations of Title I of the Americans with

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. The EEOC contends that Allstate

discriminated against Mr. Freeman by failing to accommodate his disability and by

wrongfully terminating his employment because of his disability.

In a prior Order, Allstate’s motion for summary judgment (Doc. # 43) was

granted on the EEOC’s ADA accommodation claim and was denied on the EEOC’s

ADA wrongful termination claim. (Doc. # 69.) The Order stated that an opinion

would follow. This is the opinion.

I. JURISDICTION AND VENUE

The court exercises subject matter jurisdiction under 28 U.S.C. § 1331

(federal question). Personal jurisdiction and venue are not contested.

II. STANDARD OF REVIEW

To succeed on a motion for summary judgment, the moving party must

demonstrate that “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views

the evidence, and all reasonable inferences drawn therefrom, in the light most

favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820

(11th Cir. 2010).

The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for the motion.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying

the portions of the record illustrating the absence of a genuine dispute of material

fact. Id. Alternatively, a movant without a trial burden of production can assert,

without citing the record, that the nonmoving party “cannot produce admissible

evidence to support” a material fact. Fed. R. Civ. P. 56(c)(1)(B); see also Fed. R.

Civ. P. 56 advisory committee note (“Subdivision (c)(1)(B) recognizes that a party

need not always point to specific record materials. . . . [A] party who does not have

the trial burden of production may rely on a showing that a party who does have the

trial burden cannot produce admissible evidence to carry its burden as to the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute

of material fact exists when the nonmoving party produces evidence allowing a

reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental

Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

III. BACKGROUND

Allstate is an alcoholic beverage distribution business. It operates a 120,000-

square-foot warehouse in Montgomery, Alabama, where Mr. Freeman worked from

2011 until his termination on June 2, 2018. (Doc. # 45-1 at 139 (Pl. Dep.).)1

Mr. Freeman was Allstate’s point-of-sale (POS) warehouse administrator in

the Montgomery facility. The POS warehouse was used to temporarily store

marketing materials from manufacturers prior to distribution to retailers. Those

materials included large advertising signs and displays for retail stores, branded

retail coolers of all sizes, and other promotional items of varying size and weight.

(Doc. # 45-1 at 139–40; Doc. # 52-5 at 42.) As the POS warehouse administrator,

Mr. Freeman’s responsibilities included pulling orders for marketing materials (e.g.,

coolers, signs, displays) and pushing wheeled carts, loaded with these items, across

the warehouse about the length of a football field, to stage them for pickup. (Doc.

1 Where a deposition is cited, the cited pages refer to the deposition pages, and not to the

pagination assigned in CM/ECF.

# 45-1 at 132–34, 260–61; Doc. # 52-5 at 134.) The loaded carts weighed up to 100

pounds depending on the load. According to Mr. Freeman, he pushed or pulled a

loaded cart about ten times a day. (Doc. # 45-1 at 133–34.) Mr. Freeman also

testified that the job required lifting and moving heavier items weighing forty to fifty

pounds approximately “five times per day.” (Doc. # 45-1 at 131.)

Mr. Freeman’s job also required certification as a forklift operator. He used

forklifts or pallet jacks to lift items that were on a pallet or were too heavy to lift

manually. (Doc. # 45-1 at 148–49.)

In early March 2018, Mr. Freeman had a pulmonary embolism and was

hospitalized from March 5–7, 2018. He also was suffering from supraventricular

tachycardia (SVT) and deep vein thrombosis (DVT). (Doc. # 45-1 at 49; Doc. # 45-

1, Ex. 2 at 14–15.) According to his treating physician, Jean Crepault, M.D., in early

March 2018, Mr. Freeman’s pulmonary embolism, SVT, and DVT affected his

circulatory and respiratory functions. (Doc. # 52-16 at ¶¶ 8, 11, 14.)

Dr. Crepault projected that Mr. Freeman would feel the “after-effects” of

DVT, SVT, and pulmonary embolism (which he described as “weakness and

fatigue”) “until around early August 2018.” Notwithstanding these after-effects, Dr.

Crepault opined that Mr. Freeman was healthy enough to return to his job at Allstate

on May 2, 2018, but with restrictions. (Doc. # 52-16 at ¶¶ 7, 10, 14.) Dr. Crepault

restricted Mr. Freeman from lifting, transferring, or carrying more than forty pounds

and from pushing or pulling loaded carts. (Doc. # 44 at 11; Doc. # 45-1 at 173, 215.)

Additionally, the EEOC’s vocational expert concluded that “Dr. Crepault’s

continued restrictions beyond May 2, 2018 would not have substantially limited Mr.

Freeman as compared to the average working person in the general population.”

(Doc. # 45-1, Ex. 9 at 7.) Mr. Freeman also believed that by May 2, 2018, he “could

do most anything” and “probably didn’t [even] need [Dr. Crepault’s] restrictions”

by mid-June 2018. (Doc. # 45-1 at 136–37, 174–75, 232.)

Allstate, however, felt otherwise. Allstate believed that Mr. Freeman could

not safely return to work because it considered lifting and pushing carts to be

essential functions of his job. (Doc. # 52-38.) Allstate ultimately terminated Mr.

Freeman’s employment on June 22, 2018, when he did not provide a fitness-for-duty

certification from a physician. (Doc. # 52-38.)

Mr. Freeman filed a charge of discrimination with the EEOC, alleging

disability discrimination in violation of Title I of the ADA. (Doc. # 45-2.) The

EEOC determined there was reasonable cause to believe that Allstate had violated

the ADA. It invited Allstate to participate in conciliation efforts. (Doc. # 45-2

at 101.) Those efforts failed, and the EEOC filed this lawsuit.

IV. DISCUSSION

The EEOC brings two claims under the ADA. It contends that Allstate

discriminated against Mr. Freeman by failing to accommodate his disability and by

wrongfully terminating his employment because of his disability. Allstate moved

for summary judgment on both claims. It also moved for summary judgment on the

EEOC’s requested relief for back pay and front pay, invoking the affirmative defense

of failure to mitigate damages.

The ADA prohibits employers from discriminating “against a qualified

individual on the basis of a disability” in the “terms, conditions, [or] privileges of

employment.” 42 U.S.C. § 12112(a). Where a plaintiff relies on circumstantial

evidence to prove an ADA disability discrimination claim at the summary judgment

stage, the claim is evaluated “under the familiar McDonnell Douglas burden-shifting

framework that governs Title VII employment-discrimination claims.” Todd v.

Fayette Cnty. Sch. Dist., 998 F.3d 1203, 1215 (11th Cir. 2021) (internal footnote and

citation omitted); see also Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1255

(11th Cir. 2007) (“[T]he burden-shifting analysis of Title VII employment

discrimination claims is applicable to ADA claims.” (citations and quotation marks

omitted)).

Under that framework, a plaintiff first must establish a prima facie case of

discrimination. A plaintiff shows a prima facie case of employment discrimination

under the ADA through proof that, “at the time of the adverse employment action,

he had a disability, he was a qualified individual, and he was subjected to unlawful

discrimination because of his disability.” Mazzeo v. Color Resols. Int’l, LLC, 746

F.3d 1264, 1268 (11th Cir. 2014). On an accommodation claim, “an employer’s

failure to reasonably accommodate a disabled individual itself constitutes

discrimination under the ADA, so long as that individual is ‘otherwise qualified,’

and unless the employer can show undue hardship.” Holly, 492 F.3d at 1262. If the

plaintiff establishes a prima facie case, the burden of production shifts to the

employer to articulate a legitimate, non-discriminatory reason for the adverse

employment action. Id. (citation omitted). If the employer satisfies its burden of

production, the burden shifts back to the plaintiff to demonstrate that the employer’s

articulated reason is “merely a pretext for discrimination.” Id. (citation omitted).

The discussion proceeds in three parts. Parts IV.A. and IV.B. explain why

summary judgment was granted on the accommodation claim and denied on the

wrongful termination claim. Part IV.C. explains why Allstate’s affirmative defense

of failure to mitigate damages will be carried with the case to trial.

A. The ADA Accommodation Claim

The ADA accommodation claim resolves on the disability prong of the prima

facie case. As argued by Allstate, the EEOC has not raised a genuine dispute of

material fact that Mr. Freeman had a disability on May 2, 2018, when Allstate

refused to allow him to return to work with medical restrictions on lifting more than

forty pounds and moving loaded carts. The EEOC’s contrary arguments lack merit.

1. Whether Mr. Freeman Had an ADA Disability

A plaintiff may be disabled under the ADA in one or more of three ways—

having an actual disability, having a record of a disability, or being regarded as

disabled. 42 U.S.C. § 12102(1)(A)–(C). Here, the EEOC is proceeding under all

three prongs. (Doc. # 54 at 28.)

Allstate argues that there is an absence of evidence that Mr. Freeman suffered

from an actual disability or had a record of a disability on May 2, 2018, when his

physician cleared him to return to work with restrictions. Allstate also argues that,

as a matter of law, the EEOC cannot invoke the regarded-as disability prong for an

accommodation claim because an employee may not receive a reasonable

accommodation when his employer only perceives that he has a disability. Because

Allstate is correct on all points, summary judgment was granted in Allstate’s favor

on the accommodation claim.

a. Actual Disability

A disability covered under the ADA includes a “physical impairment” that

“substantially limits one or more of an individual’s major life activities.” 42 U.S.C.

§ 12102(1)(A). This definition encompasses three requirements. First, the employee

must show that he suffers from a physical impairment. Second, the employee must

identify the major life activity that is impaired. Major life activities “include, but

are 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.” Id.

at § 12102(2)(A). Major life activities also encompass “the operation of a major

bodily function,” including respiratory and circulatory functions. Id.

at § 12102(2)(B). Third, the employee must show that the impairment substantially

limits the identified major life activity. Id. at § 12102(1)(A).

Allstate contends that the EEOC has not demonstrated that Mr. Freeman was

disabled within the meaning of the ADA. It focuses on the second and third

requirements above, arguing that the EEOC has not shown that Mr. Freeman’s

alleged physical impairments (deep vein thrombosis, pulmonary embolism, and

supraventricular tachycardia, see Doc. # 52-16) “substantially limited one or more

of his major life activities.” (Doc. # 44 at 9–10.) Allstate contends that there is an

absence of evidence that Mr. Freeman was impaired in the major life activities

identified in subsection (2)(A) of § 12102, such as working and lifting. (Doc. # 44

at 11.) Emphasizing that “the test is not whether a plaintiff is substantially limited

in [the] ability to perform a particular job,” Allstate argues that the restrictions Mr.

Freeman’s physician imposed on May 2, 2018, from lifting over forty pounds and

from moving loaded carts, cannot establish that he was substantially limited in

working or lifting “as compared to the average working person.” (Doc. # 44 at 12.)

The EEOC regulations define the term “substantially limited” as:

(i) [u]nable to perform a major life activity that the average person in

the general population can perform; or (ii) [s]ignificantly restricted as

to the condition, manner or duration under which an individual can

perform a particular major life activity as compared to the condition,

manner, or duration under which the average person in the general

population can perform that same major life activity.

29 C.F.R. § 1630.2(j)(1); see also Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d

1220, 1226 (11th Cir. 1999) (“Courts, including the Eleventh Circuit Court of

Appeals . . . , frequently look to EEOC regulations to assess . . . whether a physical

impairment substantially limits a major life activity.”). The EEOC regulations

further instruct that “[t]he term ‘substantially limits’ shall be construed broadly in

favor of expansive coverage, to the maximum extent permitted by the terms of the

ADA.” § 1630.2(j)(1)(i).

The EEOC’s response does not address Allstate’s arguments challenging the

lack of evidence that, as of May 2, 2018 (when Mr. Freeman’s physician cleared him

to return to work with restrictions), Mr. Freeman had a physical impairment that

substantially limited one or more major life activities in subsection 2(A) of § 12102.

(See Doc. # 51 at 33–35.) This silence is not surprising. For example, as concerns

the major life activity of working, the EEOC’s vocational expert opines that “Dr.

Crepault’s continued restrictions beyond May 2, 2018[,] would not have

substantially limited Mr. Freeman as compared to the average working person in the

general population.” (Doc. # 45-1, Ex. 9 at 7.) Where a plaintiff’s opposition to a

dispositive motion fails to address arguments raised by the defendant, a court may

treat those arguments that the plaintiff failed to address as conceded. See Resol. Tr.

Corp. v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir. 1995) (“[T]he onus is upon the

parties to formulate arguments; grounds alleged in the complaint but not relied upon

in summary judgment are deemed abandoned.”). Based upon this well-established

principle, the EEOC has abandoned reliance on the major life activities identified in

subsection (2)(A) of § 12102, including working and lifting.

Instead, the EEOC takes a different tact by relying on subsection (2)(B) of

§ 12102. In its response to Allstate’s summary judgment motion, the EEOC argues

for the first time that Mr. Freeman’s physical impairments substantially limited two

major life activities identified in § 12102(2)(B), namely, circulatory and respiratory

functions, so as to render him disabled. (Doc. # 51 at 33.) Allstate replies that there

is an absence of evidence that Mr. Freeman was substantially limited as to his

circulatory and respiratory functions as of May 2, 2018. (Doc. # 54 at 21.)

Two recent Eleventh Circuit decisions demonstrate that the EEOC’s evidence

is lacking as to the requirement that the disability must exist at the time of the adverse

employment action, which here is Allstate’s alleged failure to accommodate Mr.

Freeman’s restrictions on May 2, 2018. See Munoz v. Selig Enters., Inc., 981 F.3d

1265 (11th Cir. 2020); Lewis v. City of Union City, 934 F.3d 1169 (11th Cir. 2019).

In Munoz and Lewis, the Eleventh Circuit held that, on the summary judgment

record, the plaintiffs had not presented evidence establishing the duration of the

claimed ADA disability.

In Lewis, the plaintiff claimed she was disabled under the ADA because of a

permanent injury to her heart from a heart attack. 934 F.3d at 1179–80. Arguing

that her heart condition substantially limited her ability to sleep and breathe, the

plaintiff testified that she experienced “periodic shortness of breath,” which her

primary care doctor testified “could” affect her ability to sleep. Id. at 1180

(alteration adopted). However, because the plaintiff introduced no evidence of “the

severity, frequency, and duration of these episodes,” the court held she did not

provide sufficient evidence to show she was disabled under the ADA. Id. at 1180–

81 (emphasis added).

The next year in Munoz, relying on Lewis, the Eleventh Circuit held that the

plaintiff had not raised a genuine dispute of material fact that her physical

impairments substantially limited her ability to sleep and work. See Munoz, 981

F.3d at 1273. The summary judgment record was bereft of “evidence of the timing,

frequency, and duration of [the plaintiff’s] impairments.” Id. (emphasis added).

Because there was no evidence of “how long” the plaintiff endured her symptoms,

the Eleventh Circuit could not “assess whether her impairments substantially limited

her ability to work or sleep as compared to most people in the general population.”

Id. (citing Lewis, 934 F.3d at 1180–81). Because the plaintiff had not demonstrated

that she was disabled, the Eleventh Circuit affirmed the district court’s grant of

summary judgment to the defendant on the plaintiff’s ADA claims. Id. at 1274.

To support its position that Mr. Freeman had an actual disability, the EEOC

relies upon Mr. Freeman’s treating physician’s declaration, which the EEOC

obtained after Allstate filed its summary judgment motion. Allstate argues that Dr.

Crepault’s declaration does not establish that, “at the time of [Mr.] Freeman’s release

with restrictions in May” 2018, that his impairments still substantially limited his

respiratory and circulatory functions. (Doc. # 54 at 19.) Allstate is correct that

impairments substantially limiting circulatory and respiratory functions in early

March do not prove a disability in May or June.

Dr. Crepault’s declaration fails to raise a genuine dispute of material fact that

Mr. Freeman was substantially limited in his circulatory and respiratory functions at

the relevant time—when he was cleared to return to work with restrictions on May

2, 2018. Dr. Crepault opines that three of Mr. Freeman’s medical conditions

substantially affected his circulatory and respiratory functions: deep vein

thrombosis (DVT), supraventricular tachycardia (SVT), and pulmonary embolism.2

Dr. Crepault explains that Mr. Freeman’s DVT “lasted from at least February 26,

2018, . . . until around early March 2018, when Mr. Freeman was hospitalized,” that

Mr. Freeman’s “acute pulmonary embolism occurred on March 5, 2018,” and that

his SVT “began at least by March 5, 2018.” (Doc. # 52-16 at ¶¶ 6, 9, 12.) Dr.

Crepault explains that, as compared to an average healthy individual, DVT

“substantially affected [Mr. Freeman’s] circulatory functions” and SVT and the

pulmonary embolism “substantially affected his circulatory and respiratory

functions.”3 (Doc. # 52-16 at ¶¶ 8, 11, 14.)

2 Dr. Crepault also declares that Mr. Freeman experienced hypertension from February 26

to April 23, 2018, but he does not state that Mr. Freeman’s hypertension substantially limited any

major life activity. (Doc. # 52-16 at ¶ 15.)

3 Dr. Crepault says that a blood clot in the deep veins of Mr. Freeman’s left leg caused Mr.

Freeman’s DVT and that the DVT then “caused a pulmonary embolism” when the blood clot

traveled to Mr. Freeman’s lungs and pulmonary artery, “causing a blockage.” (Doc. # 52-16 at 5.)

Dr. Crepault reports that Mr. Freeman’s pulmonary embolism “substantially affected his

circulatory and respiratory functions” because the blockage that caused the pulmonary embolism

Based on Dr. Crepault’s declaration, Mr. Freeman’s DVT “substantially

affected his circulatory functions” from “at least February 26, 2018,” until “around

early March 2018,” and Mr. Freeman’s SVT and pulmonary embolism “substantially

affected his circulatory and respiratory functions” by at least March 5, 2018. (Doc.

# 52-16 at ¶¶ 6, 8, 11, 14.) But notably absent is an opinion from Dr. Crepault that

the debilitating symptoms of DVT, SVT, and pulmonary embolism that affected Mr.

Freeman’s circulatory and respiratory functions extended temporally to early March

2018 and after. Instead, Dr. Crepault says that he projected that Mr. Freeman would

feel the “after-effects” of DVT, SVT, and pulmonary embolism “until around early

August 2018.” Dr. Crepault describes the after-effects as “weakness and fatigue”

(Doc. # 52-16 at ¶¶ 7, 10, 14), but he does not opine that the lingering weakness and

fatigue following the onset of Mr. Freeman’s DVT, SVT, and pulmonary embolism

substantially affected Mr. Freeman’s circulatory or respiratory functions. Dr.

Crepault’s declaration stops conspicuously short of stating that Mr. Freeman was

substantially limited as to circulatory and respiratory functions as of May 2, 2018.

The absence of evidence as to the duration of the substantial limitations on Mr.

Freeman’s circulatory and respiratory functions is fatal to the EEOC’s ADA

accommodation claim. The medical evidence thus cannot raise a genuine dispute of

material fact that Mr. Freeman suffered from impairments that substantially limited

resulted in “abnormally low levels of blood oxygen,” contributed to his “dizziness and numbness,”

and “caused him to have SVT, an abnormally fast or erratic heartbeat.” (Doc. # 52-16 at 3.)

the major life activities of circulatory and respiratory functions beginning in May

2018.

To defeat summary judgment on the question of whether Mr. Freeman was

disabled, the EEOC need not rely only on medical evidence. Mr. Freeman’s own

testimony could suffice. However, the EEOC does not point to any testimony from

Mr. Freeman from which it can be inferred that he was substantially limited in his

circulatory and respiratory functions. In its reply brief, Allstate correctly points out

the EEOC’s position that Mr. Freeman was substantially limited as to his circulatory

and respiratory functions (Doc. # 51 at 20–21) contradicts Mr. Freeman’s testimony

about his condition in May 2018. For example, Mr. Freeman testified that by May

2, 2018, he “could do most anything” and “probably didn’t [even] need [Dr.

Crepault’s] restrictions” by mid-June. (Doc. # 45-1 at 136–37, 174–75, 232.)

Additionally, Mr. Freeman’s declaration, produced in response to Allstate’s

summary judgment motion, says that after his discharge from the hospital on March

7, 2018, Mr. Freeman “continued to experience symptoms” from his pulmonary

embolism and related medical conditions. (Doc. # 52-10 at 4.) However, he does

not indicate how long he continued to experience symptoms nor does he describe

those symptoms. The EEOC finds itself in much the same position as the Munoz

plaintiff, who provided scant evidence of the duration of her alleged impairments.

See Munoz, 981 F.3d at 1273.

Even under the broad construction of the definition of an ADA disability, the

evidence cannot raise a genuine dispute of material fact that Mr. Freeman suffered

from physical impairments that substantially limited the major life activities of

circulatory and respiratory functions as of May 2, 2018. The EEOC thus has not

shown that Mr. Freeman suffered an actual disability under the ADA.

b. Record of Impairment

The EEOC also submits that Mr. Freeman is disabled under the ADA because

he had a record of an impairment. (Doc. # 51 at 33–35); § 12102(2)(B). “[T]he

record-of-impairment standard is satisfied only if [the plaintiff] actually suffered a

physical impairment that substantially limited one or more of h[is] major life

activities.” Hilburn v. Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1229 (11th Cir.

1999) (emphasis added). As discussed in the preceding section, the EEOC has not

raised a genuine dispute of material fact that the after-effects of Mr. Freeman’s DVT,

SVT, and pulmonary embolism in fact substantially limited his circulatory or

respiratory functions on May 2, 2018. The EEOC thus has not demonstrated that

Mr. Freeman satisfies the definition of disability under the record of impairment

standard.

c. Regarded As Having a Disability

The EEOC also argues that Mr. Freeman qualifies as disabled under the ADA

because Allstate regarded him as disabled. (Doc. # 51 at 35–37); § 12102(3)(A).

However, as Allstate correctly argues (Doc. # 54 at 22 n.18), an ADA claim for

failure to accommodate cannot proceed under the “regarded as” definition of a

disability.

Under the ADA, a covered employer “need not provide a reasonable

accommodation or a reasonable modification to policies, practices, or procedures to

an individual who meets the definition of disability in section 12102(1) of this title

solely under subparagraph (C) of such section.” 42 U.S.C. § 12201(h).

Subparagraph (C) of 12102(1) is the “regarded as” definition of a disability. Relying

on § 12201(h), the Eleventh Circuit has explained that “the ADA does not require

an employer to provide reasonable accommodations where an employee is only

regarded as disabled.” Rice v. Guardian Asset Mgmt. Inc., No. 21-13188, 2022 WL

1763816, at *1 (11th Cir. June 1, 2022) (holding that an employer “need not provide

a reasonable accommodation or a reasonable modification to policies, practices, or

procedures to an individual who” is solely “regarded as” being disabled (citing

§ 12201(h) and cross-referencing § 12102(1)(C))); Billups v. Emerald Coast Utils.

Auth., 714 F. App’x 929, 936 n.4 (11th Cir. 2017) (“[T]here is no requirement to

provide reasonable accommodations where an employee is only regarded as

disabled” (citing § 12201(h))).

Because the ADA does not require an employer, like Allstate, to

accommodate individuals who are regarded as disabled, the EEOC’s

accommodation claim predicated on the “regarded as” definition of disability fails

as a matter of law.

2. Summary

The EEOC has not raised a genuine dispute of material fact that Mr. Freeman

was disabled under the ADA for his accommodation claim. Accordingly, summary

judgment was granted in favor of Allstate on this claim.

B. ADA Wrongful Termination Claim

As for the wrongful termination claim, Allstate argues that the EEOC has not

raised a genuine dispute of material fact on each element of the prima facie case or,

alternatively, that the EEOC has not rebutted its legitimate reason for terminating

Mr. Freeman’s employment. The EEOC counters those arguments. For the reasons

that follow, summary judgment was denied on this claim.

1. Whether Mr. Freeman Had an ADA Disability

For the same reasons discussed in Part IV.A., Mr. Freeman’s ADA wrongful

termination claim cannot survive summary judgment on the theories that he had an

actual disability or a record of impairment. As the evidence does not raise a genuine

dispute of material fact that Mr. Freeman had an actual disability that substantially

limited his circulatory and respiratory functions when he was cleared to return to

work on May 2, 2018, with restrictions, it likewise fails to establish that Mr. Freeman

had an actual disability when he was terminated seven weeks later on June 22, 2018.

Unlike accommodation claims, however, wrongful termination claims under

the ADA can be based on an employer’s perception that an employee has a disability.

42 U.S.C. § 12201(h); Dulaney v. Miami-Dade Cnty., 481 F. App’x 486, 489 (11th

Cir. 2012). In its summary judgment response brief, the EEOC argues that Allstate

perceived that Mr. Freeman’s medical conditions—namely, SVT, DVT, and

pulmonary embolism—rendered Mr. Freeman disabled.

Under the ADA, an individual is “regarded as” disabled if he “establishes that

he . . . has been subjected to an action prohibited under this chapter because of an

actual or perceived physical . . . impairment whether or not the impairment limits or

is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A)–(B). Under

§ 12102(3), “a plaintiff need demonstrate only that the employer regarded him as

being impaired, not that the employer believed the impairment prevented the

plaintiff from performing a major life activity.” Wolfe v. Postmaster Gen., 488 F.

App’x 465, 468 (11th Cir. 2012). Hence, “what matters for the ‘regarded as’ theory

is whether [Allstate] perceived [Mr. Freeman] as impaired, not whether he was

actually impaired.” Forsyth v. Univ. of Ala., Bd. of Trustees, No. 20-12513, 2021

WL 4075728, at *4 (11th Cir. Sept. 8, 2021). And a “prohibited action” includes

termination of employment. 29 C.F.R. § 1630.2(l)(1).

The Eleventh Circuit’s decision in Lewis is instructive. See 934 F.3d at 1181.

In Lewis, the Eleventh Circuit held that the plaintiff presented “ample evidence” to

raise a genuine dispute of material fact whether her employer regarded her as

disabled:

Chief Odom himself was a witness to Ms. Lewis’s heart attack. In his

June 17 letter putting Ms. Lewis on leave, Assistant Chief Brown

referred to her chronic conditions and instructed her to complete FMLA

paperwork, suggesting that he believed Ms. Lewis had a medical

condition warranting medical leave. Next, Assistant Chief Brown’s

July 1 letter forbade Ms. Lewis from returning to work until

“everything is cleared up with your doctor,” said that “your doctor’s

letter essentially makes it impossible for you to work or be at work,”

and concluded that Ms. Lewis could not return “until your doctor

releases you for duty.” Assistant Chief Brown’s July 6 email again

referred to the possibility of Ms. Lewis taking leave under FMLA.

Indeed, the department’s own stated reason for putting Lewis on

leave—that it feared for her safety in view of her heart condition—

demonstrates the department’s belief that Ms. Lewis’s medical

condition set her apart from other police officers.

Id.

The evidence upon which the EEOC relies is sufficiently analogous to the

evidence in Lewis to overcome summary judgment on the theory that Mr. Freeman

was disabled under the regarded-as prong of a disability. The EEOC points to the

following to show that Allstate regarded Mr. Freeman as disabled: (1) the Allstate

employee’s visit to Mr. Freeman in the hospital in March 2018 to provide him with

FMLA paperwork; (2) Allstate’s April 27, 2018 letter to Mr. Freeman referencing

his pulmonary embolism and SVT and requesting a fitness-for-duty certification

from a treating physician (Doc. # 52-24); (3) Allstate’s May 14, 2018 letter to Mr.

Freeman, noting his “serious health condition” and informing him that Allstate could

not “reinstate [his] position at this time” because his physician had not yet certified

that he was “able to safely perform the essential functions of [his] position,” (Doc.

# 52-32); and (4) Allstate’s June 19, 2018 letter, notifying Mr. Freeman that he

would be terminated effective June 22, 2018, unless he provided a fitness-for-duty

certification confirming his ability to perform the essential functions of the job (Doc.

# 52-38).

As in Lewis, Allstate’s actions, construed in the light most favorable to the

EEOC, are sufficient to show that Allstate terminated Mr. Freeman because it

perceived him as having a physical impairment that prevented him from performing

his job. First, Allstate required Mr. Freeman to take FMLA leave for his medical

conditions. Second, Allstate’s letters to Mr. Freeman reveal that Allstate considered

his medical conditions serious enough to prevent him from performing his job.

Third, Allstate prohibited Mr. Freeman from returning to work without physician

approval. And fourth, Allstate terminated him when he did not provide a fitness-

for-duty certification by June 22, 2018.

Allstate advances two counterarguments. First, Allstate contends that it did

not regard Mr. Freeman as disabled. It cites, for example, the deposition testimony

of Judy Graham, Allstate’s human resources generalist in Montgomery, who

testified that she was “not aware” that Mr. Freeman had a disability and only knew

that he had a “heart condition.” (Doc. # 52-8 at 40–41.) But this evidence raises,

rather than eliminates, material factual disputes because Ms. Graham is the same

individual who signed the April 27, May 14, and June 19 letters to Mr. Freeman

recognizing his diagnosed pulmonary embolism and SVT, acknowledging his

“serious health condition,” and concluding that Mr. Freeman could not perform the

essential functions of his job based upon his physician’s restrictions. (Doc. # 52-24,

52-32, and 52-38.) The other evidence that Allstate cites (see Doc. # 54 at 22 n.19)

likewise does little more than create factual issues for the jury to resolve. A

reasonable jury could credit and rely upon the EEOC’s evidence to find that Allstate

fired Mr. Freeman because it regarded him as disabled.

Second, Allstate argues that the regarded-as theory is not properly before the

court because the EEOC “did not plead” a perceived disability claim under the ADA

and thus its reliance at summary judgment on this theory is improper. (Doc. # 54

at 22.) The Complaint alleges that Mr. Freeman was hospitalized for a pulmonary

embolism and had a disability. (Doc. # 2 at ¶¶ 13–14.) Allstate is correct that the

Complaint does not specify under which of the three subparts of the ADA’s

definition of disability the claim is proceeding; however, the ADA’s three-part

definition of disability includes a person who is “regarded as” having the requisite

impairment. Allstate cites no authority that an ADA violation based on an as-

regarded disability is a separate cause of action, rather than a theory by which to

prove that a plaintiff has a qualifying disability for purposes of an ADA

discrimination claim. See, e.g., Kolovos v. Sheahan, No. 97 C 4542, 1999 WL

1101919, at *4 (N.D. Ill. Nov. 30, 1999) (“We reject defendant’s argument that we

should preclude [the plaintiff] from advancing this theory because he failed to allege

in his complaint that he was ‘regarded as disabled.’ The Federal Rules do not require

a plaintiff to plead his legal theory.”). Absent authority or persuasive argument on

this point, the court declines to summarily dispose of the regarded-as theory.

Notably also, Allstate did not challenge the Complaint’s allegations as

impermissibly conclusory through a Rule 12(b)(6) motion. Nor does Allstate now

argue unfair surprise in having to defend the theory at the summary judgment stage,

and it is doubtful that Allstate could do so, given that Allstate acknowledged Mr.

Freeman’s “serious health condition” (Doc. # 52-32) and terminated Mr. Freeman

based on its perception that Mr. Freeman’s physical impairments prevented him

from performing the essential functions of his job (Doc. # 52-38). On this record,

the EEOC’s claim that Mr. Freeman was terminated based upon a perceived

disability is a plausible theory on the evidence, which means there is a genuine

dispute of material fact for trial.

2. Whether Mr. Freeman Is a Qualified Individual

The ADA defines the phrase “qualified individual” as “an individual who,

with or without reasonable accommodation, can perform the essential functions of

the employment position that such individual holds or desires.” § 12111(8).

However, to prevail under a “regarded as” theory, the EEOC must show that Mr.

Freeman could perform the essential functions of his job with no accommodations

because, as discussed, employers do not have to accommodate individuals “regarded

as” disabled.4 29 C.F.R. § 1630.2(o)(4); see also Sierra v. Port Consol. Jacksonville,

4 The EEOC’s argument that genuine disputes of material fact exist as to whether he could

perform the essential functions of his job with a reasonable accommodation are not germane to the

regarded-as theory. (Doc. # 51 at 42–44.)

L.L.C., No. 3:14-CV-1496-HES-JBT, 2016 WL 927189, at *7 (M.D. Fla. Mar. 4,

2016) (“It logically follows from this exception [i.e., § 1630.2(o)(4)] that a plaintiff

who proceeds only under the “regarded as” prong must demonstrate he is a qualified

individual based on his ability to perform the essential functions of his job without

reasonable accommodation.”). Hence, for the EEOC’s ADA wrongful termination

claim, it must show that Mr. Freeman is a qualified individual who can perform the

essential functions of his job as POS warehouse administrator with no

accommodations.

Allstate’s arguments for summary judgment are twofold. First, Allstate

argues that the EEOC has not shown that Mr. Freeman’s restrictions—that he refrain

from lifting, transferring, or carrying more than forty pounds and from pushing or

pulling loaded carts—permitted him to perform the essential functions of his job at

the time of his termination on June 22, 2018. (Doc. # 44 at 13.) Second, Allstate

argues that, by applying for social security disability insurance (SSDI) benefits and

representing that he was totally disabled, Mr. Freeman has conceded that he cannot

perform the essential functions of his job; so, according to Allstate, the EEOC is

estopped from proving an essential element of its ADA wrongful termination claim.

Each argument is discussed in turn and is rejected.

a. Evidence Pertaining to the Essential Functions of the POS

Warehouse Administrator Position

The EEOC has demonstrated that there is a genuine dispute of material fact

as to what the essential functions of the job of a POS warehouse administrator were

and whether Mr. Freeman’s restrictions affected those essential functions. (Doc.

# 51 at 39.) “Essential functions” are “the fundamental job duties of the employment

position the individual with a disability holds or desires.” 29 C.F.R. § 1630.2(n)(1).

Whether a job function is essential is analyzed case-by-case based on several factors.

Samson v. Fed. Exp. Corp., 746 F.3d 1196, 1200–01 (11th Cir. 2014); see also Holly,

492 F.3d at 1258. These factors include “[t]he employer’s judgment as to which

functions are essential,” (2) “[w]ritten job descriptions,” (3) “[t]he amount of time

spent on the job performing the function,” and (4) the work experience of other

employees performing the same or similar jobs. 29 C.F.R. § 1630.2(n)(3); see also

Samson, 746 F.3d at 1201 (outlining the § 1630.2(n)(3) factors).

Allstate relies upon its written description of the essential functions of a POS

warehouse administrator position and employee testimony. (Doc. # 44 at 22.)

Allstate has produced a written description stating that the essential functions of a

POS warehouse administrator are (1) “occasional (approximately five times per day)

lift[ing], carry[ing], transfer[ring] of 40–51# [pounds]” and (2) “repetitive pushing

and pulling of empty and fully loaded carts for distance of up to 300ft or more.”

(Doc. # 45-1 at 205.) Mr. Freeman estimated that he would push a loaded cart

“maybe ten” times a day (Doc. # 45-1 at 133–34) and that he lifted items weighing

forty to fifty pounds approximately “five times per day.” (Doc. # 45-1 at 131; see

also Doc. # 45-3 at 72–73.) If this were the only evidence regarding the functions

of Mr. Freeman’s job, Allstate’s motion might prevail. However, as the EEOC

points out, there is conflicting evidence about which functions of the POS warehouse

administrator job are essential. The following evidence relied upon by the EEOC is

illustrative.

First, the EEOC has produced three other versions of the position description

for the POS warehouse administrator. None of these versions lists lifting forty or

more pounds or pushing fully loaded carts in the “responsibilities” section. (Doc.

# 52-35 at 2–6.) Second, Mr. Freeman testified that, at Allstate’s quarterly safety

meetings, Allstate’s managers encouraged employees, like Mr. Freeman, to not lift

heavy items on their own and to use a team-lift approach instead. (Doc. # 45-1

at 267–70; Doc. # 52-3 at 48–50.) Third, the employee who took over Mr.

Freeman’s position testified that he lifted, carried, or transferred forty to fifty pounds

three to four times a week, not five times per day as set out in Allstate’s written

description of the essential functions of a POS warehouse administrator. (Doc. # 52-

28.) Fourth, Mr. Freeman has explained that he had other equipment available to

help him lift, transfer, and move items in the warehouse, including a motorized pallet

jack. (Doc. # 52-10 at 3.)

On summary judgment, the facts and their inferences must be viewed in the

light most favorable to the EEOC. The foregoing and other evidence upon which

the EEOC relies (see Doc. # 51 at 39–45) are sufficient to create a genuine dispute

of material fact as to whether lifting forty or more pounds or pushing fully loaded

carts is an essential function of the job of a POS warehouse administrator.

b. Judicial Estoppel

Allstate argues that Mr. Freeman’s representations in his application for SSDI

benefits estops the EEOC from arguing that Mr. Freeman is a qualified individual

under the ADA. Allstate contends that Mr. Freeman is not a qualified individual

because by applying for SSDI benefits, he attested that he could not perform any

gainful employment for twelve months, i.e., that he was totally disabled. According

to Allstate, the representations Mr. Freeman made during his SSDI proceedings

contradict the EEOC’s claim that Mr. Freeman could perform the job’s essential

functions at the time of his termination and that the EEOC is estopped from taking

a contrary position on Mr. Freeman’s behalf. The EEOC argues that estoppel does

not apply, principally because Mr. Freeman’s claim for SSDI benefits was denied.

(Doc. # 51 at 37–38.) The EEOC’s argument rests on the premise that where the

earlier court has rejected the SSDI claimant’s assertion of disability, estoppel should

not apply because the representations do not have judicial imprimatur.

Judicial estoppel is an equitable doctrine designed to “prevent the perversion

of the judicial process and protect its integrity by prohibiting parties from

deliberately changing positions according to the exigencies of the moment.” Slater

v. United States Steel Corp., 871 F.3d 1174, 1180 (11th Cir. 2017) (cleaned up). It

“rests on the principle that absent any good explanation, a party should not be

allowed to gain an advantage by litigation on one theory, and then seek an

inconsistent advantage by pursuing an incompatible theory.” Id. at 1180–81

(citation and quotation mark omitted). In the Eleventh Circuit, where the party

raising estoppel was not a party to the prior proceeding, judicial estoppel applies

when “(1) the party took an inconsistent position under oath in a separate proceeding,

and (2) these inconsistent positions were calculated to make a mockery of the judicial

system.” Id. (citation and quotation marks omitted).

Both parties cite Cleveland v. Policy Management System, 526 U.S. 795

(1999), which is instructive. In Cleveland, the Supreme Court held that “pursuit,

and receipt, of SSDI benefits does not automatically estop the recipient from

pursuing ADA claims.” 526 U.S. at 798. The Supreme Court recognized that there

are “many situations in which an SSDI claim and an ADA claim can comfortably

exist side by side.” Id. at 803. For instance, where “an individual has merely applied

for, but has not been awarded, SSDI benefits, any inconsistency in the theory of the

claims is the kind of inconsistency that our legal system, which allows for liberal

rules of pleading, normally tolerates.” See id. at 805. However, “an ADA plaintiff

cannot simply ignore [his] SSDI contention that []he was too disabled to work.” Id.

at 798. Rather, “[t]o survive a defendant’s motion for summary judgment,” an ADA

plaintiff “must explain why that SSDI contention is consistent with h[is] ADA claim

that []he could perform the essential functions of h[is] previous job, at least with

reasonable accommodation.” Id. (quotation marks omitted). That “explanation must

be sufficient to warrant a reasonable juror’s concluding that, assuming the truth of,

or the plaintiff’s good-faith belief in, the earlier statement, the plaintiff could

nonetheless perform the essential functions of her job, with or without reasonable

accommodation.” Id. at 807.

In Cleveland, the ADA plaintiff, who had qualified for SSDI benefits, sought

to explain the discrepancies between her representations to the Social Security

Administration (SSA) that she was “totally disabled” and her contrary position

espoused in her ADA lawsuit. She contended that her “SSDI statements were

‘accurate statements’ if examined ‘in the time period in which they were made,’” id.

at 807, implying that her health had deteriorated during the relevant time frame. The

Court concluded that judicial estoppel was inappropriate on summary judgment and

that the parties “should have the opportunity in the trial court to present, or to contest

the[] explanations, in sworn form where appropriate.” Id.

i. Whether Mr. Freeman’s Position Under Oath in his

SSDI Proceeding Is Inconsistent with the EEOC’s Position in this Lawsuit

The first consideration for assessing judicial estoppel is whether Mr.

Freeman’s statements in his SSDI application are inconsistent with the EEOC’s

ADA wrongful termination claim in this lawsuit.

In his SSDI application submitted on July 30, 2018, Mr. Freeman stated, “I

became unable to work because of my disabling condition on March 5, 2018,” and

“I am still disabled.” (Doc. # 45-1 at 227.) Mr. Freeman also “affirm[ed] that all

information [he] ha[d] given in connection with this claim is true.”5 (Doc. # 45-1

a 228.) In this lawsuit to support the ADA wrongful termination claim, the EEOC’s

theory is that Mr. Freeman was able to perform his job with Allstate on June 22,

2018, with no accommodations.6 (Doc. # 45-1 at 136–37, 174–75, 232 (testifying

that he “probably didn’t [even] need [Dr. Crepault’s] restrictions” by mid-June).)

On the summary judgment record, Mr. Freeman’s claim of total disability in his

SSDI application contradicts the EEOC’s claim in this lawsuit that Mr. Freeman is

a qualified individual under the ADA.

ii. Whether the EEOC’s Filing of this Lawsuit Made a

Mockery of the Judicial System

The second consideration for assessing judicial estoppel is whether there is

evidence that the EEOC’s filing of this lawsuit made a mockery of the judicial

system. “[T]o determine whether a plaintiff’s inconsistent statements were

5 These representations are reflected in the SSA application summary of the statements Mr.

Freeman made in support of his claim for SSDI benefits.

6 On the ADA wrongful termination claim, because the EEOC is proceeding under the

theory that Allstate perceived Mr. Freeman to be disabled, the EEOC must show that Mr. Freeman

was able to perform the essential functions of his job without any accommodations on June 22,

2018, the date Allstate terminated his employment.

calculated to make a mockery of the judicial system, a court should look to all the

facts and circumstances of the particular case.” Slater, 871 F.3d at 1185. Those

circumstances include “whether . . . the party has succeeded in persuading a court to

accept that party’s earlier position, so that judicial acceptance of an inconsistent

position in a later proceeding would create the perception that either the first or the

second court was misled.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001)

(citation and internal quotation marks omitted). “Absent success in a prior

proceeding, a party’s later inconsistent position introduces no risk of inconsistent

court determinations, and thus poses little threat to judicial integrity.” Id. at 750–51

(internal citation and quotation marks omitted); accord Cleveland, 526 U.S. at 805.

First, Mr. Freeman did not convince the SSA that he was disabled within the

meaning of the SSA. See 42 U.S.C. § 423(d)(1)(A) (defining a disability as the

“inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period of not less than

12 months”). The SSA determined that Mr. Freeman was “not disabled under [its]

rules.” (Doc. # 45-1 at 231.) In Cleveland and in other cases cited by Allstate—

e.g., Kurzweg v. SCP Distributors, LLC, 424 F. App’x 840 (11th Cir. 2011), and

Flores v. Hyundai Motor Mfg. Ala., LLC, No. 2:19-CV-830-WKW, 2021 WL

1910776 (M.D. Ala. May 12, 2021)—the estopped ADA plaintiff was awarded SSDI

benefits, but here Mr. Freeman was denied SSDI benefits. On the summary

judgment facts, Allstate has not shown that the EEOC’s filing of this lawsuit is a

“threat to judicial integrity.” New Hampshire, 532 U.S. at 750; see also Cleveland,

526 U.S. at 805 (“[I]f an individual has merely applied for, but has not been awarded,

SSDI benefits, any inconsistency in the theory of the claims is of the sort normally

tolerated by our legal system.”); Williams v. Hill, No. 1:20-CV-0186-JPB-JSA, 2022

WL 907789, at *25 (N.D. Ga. Jan. 31, 2022) (concluding that “the Cleveland

decision also stated that a person’s act of merely applying for SSDI benefits, without

being awarded benefits, should not be considered unduly prejudicial to any claim

brought under the ADA, because plaintiffs are entitled to pursue alternative theories

of relief”), report and recommendation adopted, No. 1:20-CV-0186-JPB-JSA, 2022

WL 1715212 (N.D. Ga. Mar. 31, 2022).

Second, Mr. Freeman attempts to reconcile some of his statements on his

SSDI application. For example, Mr. Freeman testified that he mistakenly thought

that the question about the onset date of his disability was a question asking the last

date he had worked, testifying that he “made a mistake on the date of . . . when [he]

was fully disabled.” (Doc. # 45-1 at 234–35.) Whether Mr. Freeman’s explanation

is credible will be for the jury to decide, not the court on summary judgment. See

Cleveland, 526 U.S. at 107. Wholesale exclusion of the EEOC’s ADA wrongful

termination claim on summary judgment based on judicial estoppel is not warranted.

The EEOC is not judicially estopped from claiming that Mr. Freeman was

able to perform his job as POS warehouse administrator when he was fired, even

though he claimed in his SSDI application that he became disabled before his

employment ended.

3. Whether Mr. Freeman Was Discriminated Against Because of His

Perceived Disability

Arguing for and against a summary judgment finding that Mr. Freeman was

discriminated because of his disability, the parties frame their arguments in relation

to the “but-for” causation standard. At least one non-precedential Eleventh Circuit

decision has said that “the third prong of the prima facie case—requiring proof that

the employer discriminated against the plaintiff because of his disability—requires

the plaintiff to show that the discriminatory motivation was the but-for cause of the

adverse employment action.” Collier v. Harland Clarke Corp., 820 F. App’x 874,

879 (11th Cir. 2020) (citing Holly, 492 F.3d at 1263 n.17); but see Mazzeo, 746 F.3d

at 1270 (providing that but-for causation under the Age Discrimination in

Employment Act is the plaintiff’s trial burden) (citing Gross v. FBL Fin. Servs., Inc.,

557 U.S. 167, 177–78 (2009)). The analysis proceeds under the parties’ framing,

but no finding is made as to whether the framing is suitable at the summary judgment

stage.

“But-for” causation means that disability “was the ‘reason’ that the employer

decided to act.” Gross, 557 U.S. at 176; see also Phillips v. PPG Indus., Inc., No.

5:14-CV-1274-VEH, 2015 WL 7458687, at *10 n.6 (N.D. Ala. Nov. 24, 2015)

(noting that Burrage v. United States, 571 U.S. 204 (2014) “eliminated any lingering

doubt about whether the reasoning in Gross . . . applies to the ADA”). “But-for”

causation also “means a defendant cannot avoid liability just by citing some other

factor that contributed to its challenged employment decision.” Bostock v. Clayton

Cnty., Ga., 140 S. Ct. 1731, 1739 (2020). As long as disability “was one but-for

cause” of the adverse employment action, “that is enough to trigger the law.” Id.

Allstate argues that the EEOC cannot show that Mr. Freeman’s disability was

the but-for cause for his termination, pointing to Mr. Freeman’s testimony that

“possibly” his age, as well as his high pay, “could have” also factored into Allstate’s

decision to terminate him. (Doc. # 45-1 at 26, 28.) Countering this argument, the

EEOC contends that “Allstate made no secret of the fact that it terminated Freeman

because of his disability.” (Doc. # 51 at 58–59.) Relying on Allstate’s June 19,

2018 letter to Mr. Freeman, the EEOC argues that Allstate’s “express, written reason

for terminating Freeman was his physician-imposed restrictions, which themselves

were the product of Freeman’s disability.” (Doc. # 51 at 59; see also Doc. # 52-38

(letter).) It further contends that Mr. Freeman’s belief that pay and age

discrimination also could have been factors does not negate the evidence that Mr.

Freeman’s disability was the determinative reason, even if it was not the sole reason,

for Allstate’s decision to terminate him. (Doc. # 51 at 59.) The EEOC has the better

argument.

The evidence creates a genuine dispute of material fact as to whether Mr.

Freeman’s perceived disability was the but-for cause of his termination. The letters

from Allstate to Mr. Freeman, dated May 14, 2018 and June 19, 2018, confirm that

Allstate terminated Mr. Freeman’s position because it perceived that his medical

conditions prevented him from performing the essential functions of his job as a POS

warehouse administrator. Allstate expressed that it could not accommodate his

physician-imposed restrictions on lifting more than forty pounds and transporting

loaded carts based on the “frequency of these tasks and the fact that there is only one

POS Warehouse Administrator position in Montgomery.” (Doc. # 52-32 at 2.) It

considered Mr. Freeman’s physical restrictions as affecting essential functions of the

POS warehouse administrator position, and Allstate’s stated reason for Mr.

Freeman’s termination was that he did not submit a physician certification that he

could “safely perform the essential functions of [his] position.” (Doc. # 52-38.)

As to whether the but-for cause of Mr. Freeman’s termination was instead his

age or his high pay, Allstate fails to show that it is entitled to judgment as a matter

of law. See Fed. R. Civ. P. 56(a). Neither Mr. Freeman’s age nor his pay is

mentioned in Allstate’s letters to Mr. Freeman. Also, Mr. Freeman qualified his

testimony about his belief that his increased age and high pay may have factored in

the termination calculus by prefacing the testimony with “possibly” and “could

have.” (Doc. # 45-1 at 26, 28) During his deposition, he also espoused that he was

being “ask[ed] . . . to speculate” about whether Allstate considered his age and pay

when terminating him. (Doc. # 45-1 at 26.) This equivocal testimony, which is

unconfirmed from any other source, is not the stuff that summary judgment is made

of. Allstate cannot obtain summary judgment where there is evidence that Mr.

Freeman’s disability “was one but-for cause” of his termination, Bostock, 140 S. Ct.

at 1739, even if Allstate could point to evidence that there may have been other

causes too.

The evidence, construed in the light most favorable to the EEOC, raises a

genuine dispute of material fact as to each element of the prima facie case.

4. Whether Allstate Has Shown a Legitimate, Non-discriminatory

Reason for Mr. Freeman’s Termination

Allstate argues that its reason for Mr. Freeman’s termination—his inability to

perform the essential functions of the position—is a legitimate reason. On the

summary judgment record, this reason cannot carry the day.

An employer has a legitimate, non-discriminatory reason for terminating a

disabled employee who can no longer perform the essential functions of his job. See

E.E.O.C. v. Eckerd Corp., No. 1:10-CV-2816-JEC, 2012 WL 2726766, at *11 (N.D.

Ga. July 9, 2012). However, because there is a genuine dispute of material fact

whether Mr. Freeman’s restrictions were essential functions of his job, the

legitimacy of the proffered reason is for trial, and the McDonnell Douglas analysis

comes to a close. See Boone v. Rumsfeld, 172 F. App’x 268, 273 (11th Cir. 2006)

(per curiam) (“[B]ecause a genuine question of fact exists as to the essential

functions of an HMER [heavy mobile equipment repairer], the district court erred in

finding that the [employer’s] legitimate, nondiscriminatory reason for [the

plaintiff’s] termination was not pretextual.”).

5. Summary

The EEOC has raised a genuine dispute of material fact as to whether Allstate

terminated Mr. Freeman because it regarded Mr. Freeman as disabled. Thus,

summary judgment was denied on Mr. Freeman’s ADA wrongful termination claim.

C. Allstate’s Affirmative Defense of Mitigation of Damages

As to the EEOC’s requested equitable relief for back pay and front pay under

the ADA, Allstate argues that Mr. Freeman did not mitigate his damages by using

reasonable diligence to find substantially equivalent employment after his

termination. (Doc. # 44 at 23–25; Doc. # 54 at 23–24.) The EEOC does not dispute

that Mr. Freeman remained unemployed after his termination, but it argues that his

initial failure to obtain employment was not for lack of trying. (Doc. # 51 at 59–61.)

The EEOC points to Mr. Freeman’s testimony that, shortly after Allstate fired him,

he applied for jobs at Publix, Wal-Mart, and Enterprise Rent-a-Car and that he

followed up with managers as to his applications at Publix and Wal-Mart. (Doc.

# 45-1 at 63–74.) He also posted his resume on Indeed.com. (Doc. # 45-1 at 74.)

The EEOC also cites Mr. Freeman’s testimony that his termination from Allstate

made him feel “emasculated” and caused him to suffer diagnosed depression

because he “could not continue to provide for [his] household.” (Doc. # 45-1 at 50–

52.)

“The purpose of relief under the federal employment anti-discrimination laws

is to make persons whole for injuries suffered on account of unlawful employment

discrimination.” E.E.O.C. v. Massey Yardley Chrysler Plymouth Inc., 117 F.3d

1244, 1251 (11th Cir. 1997) (Age Discrimination in Employment Act) (citation and

quotation marks omitted). To achieve the goal of making the injured person whole,

a prevailing party under the ADA is “presumptively entitled” to back pay and to

either reinstatement or front pay.7 Weaver v. Casa Gallardo, Inc., 922 F.2d 1515,

1528 (11th Cir. 1991) (Title VII) (superseded by statute on other grounds); 42 U.S.C.

§ 12117(a) (adopting 42 U.S.C. § 2000e-5’s enforcement mechanisms as those for

the ADA). An injured employee though has a “duty to mitigate his damages by

being reasonably diligent in seeking substantially equivalent employment,” and,

where the employer raises the affirmative defense that the employee failed to

mitigate losses, the employer has the burden “to prove the [employee] lacked

diligence.” Massey, 117 F.3d at 1251. An exception lies to the plaintiff’s mitigation

requirement “where the defendant’s discriminatory conduct resulted in the disability

that prevents the plaintiff from finding other employment.” Lathem v. Dep’t of

Child. & Youth Servs., 172 F.3d 786, 794 (11th Cir. 1999).

7 In the Eleventh Circuit, back pay and front pay awards are equitable relief, which, absent

the parties’ consent for a jury determination, are for the court to decide. Holland v. Gee, 677 F.3d

1047, 1064 n.8 (11th Cir. 2012) (citing Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1184 (11th

Cir. 2010)).

Allstate has not met its summary judgment burden of showing that there is no

genuine dispute of material fact on its affirmative defense. Mr. Freeman testified

that he did apply for employment after his termination, and Allstate has not argued

that the positions for which he applied were substantially inequivalent to his job as

POS warehouse administrator. Allstate also has pointed to no evidence that, after

his termination, Mr. Freeman passed over job offers or opportunities for

substantially equivalent employment. Also, a reasonable jury could find that

Allstate’s act of terminating Mr. Freeman caused him to suffer depression that

prevented him from obtaining new employment. On this record, damage mitigation

cannot be resolved on summary judgment. Alternatively, because mitigation affects

the available remedies and not liability, the better course is to proceed to a verdict,

rather than to address remedies at summary judgment. See generally Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (observing that the trial court may

“deny summary judgment in a case where there is reason to believe that the better

course would be to proceed to a full trial”) (citation omitted).

V. CONCLUSION

The EEOC brings two ADA claims against Allstate on behalf of Allstate’s

former employee, Mr. Freeman. A prior Order granted Allstate’s motion for

summary judgment on the EEOC’s ADA accommodation claim and denied

summary judgment on the EEOC’s ADA wrongful termination claim. (Doc. # 69.)

For the reasons set out in this Memorandum Opinion, the ADA accommodation

claim fails based on the absence of evidence that Mr. Freeman had a qualifying

disability when Allstate denied his requested accommodations. The EEOC’s case

proceeds to trial on its ADA claim that Allstate wrongfully terminated Mr. Freeman

because of a perceived disability.

DONE this 17th day of October, 2022.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE