Killingsworth v. Birmingham Jefferson County Transit Authority

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

OPHELIA KILLINGSWORTH, )

)

Plaintiff, )

v. )

) Civil Action Number

BIRMINGHAM-JEFFERSON ) 2:17-cv-00963-AKK

COUNTY TRANSIT AUTHORITY, )

)

Defendant. )

)

MEMORANDUM OPINION

Ophelia Killingsworth alleges that her former employer, the Birmingham-

Jefferson County Transit Authority (“BJCTA”), violated Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e et seq, as amended, the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12112(a), as amended by the ADA Amendments Act of 2008,

42 U.S.C. § 12102 (“ADAAA”), and the Age Discrimination and Employment Act

(“ADEA”), 29 U.S.C. §§ 621-634. Doc. 1. Specifically, Killingsworth contends that

BJCTA failed to accommodate her disability, discharged her because of her gender,

disability, and age, and failed to hire her for a supervisory position because of her

gender, disability, and age. BJCTA has moved for summary judgment, contending

that Killingsworth cannot show a failure to accommodate or discriminatory

treatment based on her discharge and the failure to hire her as a supervisor. See docs.

32, 33. After reading the briefs, see id.; docs. 37, 38, reviewing the evidence, and

considering the relevant law, except for the failure to accommodate claim, the court

finds that the motion is due to be granted.

I. STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment

is proper “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56.

“Rule 56[] mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which

that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986) (alteration in original).

The moving party bears the initial burden of proving the absence of a genuine

issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who

is required to “go beyond the pleadings” to establish that there is a “genuine issue

for trial.” Id. at 324 (internal quotations omitted). A dispute about a material fact is

genuine “if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

At summary judgment, the court must construe the evidence and all

reasonable inferences arising from it in the light most favorable to the non-moving

party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson,

477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s

favor when sufficient competent evidence supports the non-moving party’s version

of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir.

2002). However, “mere conclusions and unsupported factual allegations are legally

insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321,

1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863

F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence

supporting the opposing party’s position will not suffice; there must be enough of a

showing that the jury could reasonably find for that party.” Walker v. Darby, 911

F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252)).

II. FACTUAL BACKGROUND

This case arises from Killingsworth’s discharge by BJCTA in August 2016.

Notably, this case comes before the court on a very sparse record. The court

originally provided the parties until August 30, 2018 to conduct discovery, see doc.

21 at 1, and, on joint motion by the parties, extended the deadline by two months,

see doc. 25 at 1. The day before the deadline, BJCTA moved to compel

Killingsworth, in part, to sit for a deposition, claiming that counsel for Killingsworth

had not responded to BJCTA’s inquiries from six weeks earlier to provide

Killingsworth’s availability for deposition. See doc. 26 at 1-2; 26-2. The court denied

the motion, in light of the previous extension and BJCTA’s failure to show good

cause why it waited until the penultimate day of discovery to raise this issue. See

doc. 27. Consequently, the only testimony before the court is Killingsworth’s written

discovery responses, proffered by BJCTA, see doc. 32-7, and a sworn declaration,

proffered by Killingsworth in response to BJCTA’s motion, see doc. 37-1.

Turning now to the record before the court, the record shows that the BJCTA

hired Killingsworth as a bus operator in October 2000, doc. 37-1 ¶ 2, and that the

terms of her employment were governed by a Labor Union Contract Agreement

(“the Agreement”), see id. ¶ 7; 33-2. Under the Agreement, a BJCTA employee with

Killingsworth’s length of service could take a leave for personal medical reasons for

a period “not to exceed a total medical leave of absence of 18 months.” See docs.

33-2 at 3; 37-1 ¶ 7. From May 13 to August 5, 2014, Killingsworth missed work due

to a knee injury she suffered on the job, see docs. 33-3 at 2-5; 37-1 ¶ 3, and received

worker’s compensation during that time, see doc. 37-1 ¶ 3. When Killingsworth

returned, BJCTA placed her on light duty until November 2014 because she was

allegedly suffering from medical issues related to her back. See docs. 33-3 at 5-6;

37-1 ¶ 5. Then, in March 2015, while performing her duties as a bus driver,

Killingsworth was struck by another vehicle, reinjuring her back. Doc. 37-1 ¶ 6.

BJCTA granted Killingsworth personal medical leave due to this injury, and she

remained on leave for the next 15 months. Doc. 36-1 ¶ 6.

While on medical leave, in July 2016, Killingsworth allegedly applied for the

position of road supervisor/dispatch supervisor, but BJCTA denied her application

although, she contends, she was qualified for the position. See docs. 37-1 ¶ 9; 33-7

at 22. BJCTA purportedly informed Killingsworth that it denied her this position

because she failed a required test. Doc. 37-1 ¶ 9. Furthermore, at some point while

on medical leave,1 Killingsworth told BJCTA Human Resources employee Carvis

King that she “needed to work a class of jobs within the medical restrictions

occasioned by my injuries.” Id. ¶ 11. Killingsworth also told King that: her injuries

limited her “in the ‘major life activities’ of standing, sitting, reaching, lifting and

bending” and “in the operation of [her] body’s neurological and musculoskeletal

functions in that any of the aforementioned activities caused [her] severe pain,” id.

¶ 12; she “could not lift, push, pull, assist, and secure passengers that needed physical

assistance or lift fifty pounds,” id. ¶ 14; and she suffered permanent joint and back

pain that was exacerbated when she drove a bus, id. ¶ 13. Finally, Killingsworth

specifically requested a supervisory or other non-driving position due to her work-

related injuries, id. ¶ 13, and “asked for a reasonable accommodation because of

these health issues,” id. ¶ 15.

1 The record is unclear as to when this alleged conversation occurred. See doc. 37-1. However,

drawing all reasonable inferences in favor of Killingsworth, the court infers that this conversation

occurred while Killingsworth was on medical leave. See Pace, 283 F.3d at 1276, 1278.

On July 19, 2016, BJCTA sent Killingsworth a letter stating that her “15

months of medical which began on April 10, 2015 has exhausted on July 19, 2016

and you are expected to return to work immediately.” Doc. 33-4 at 2. However,

Killingsworth did not return to work. See doc. 1 ¶ 9; 33 ¶ 6; 37 at 2. Instead, the next

day, Killingsworth’s doctor, Emmanuel Odi, wrote a letter to BJCTA recommending

that BJCTA excuse Killingsworth from work “for an additional month.” See doc.

33-5 at 2. Dr. Odi wrote an additional letter the following month stating only that

Killingsworth “could not return to work at this time due to ongoing medical issues

which have not improved.” Id. at 3. Five days after Dr. Odi’s second letter, on

August 25, 2016, the BJCTA discharged Killingsworth from her position as a bus

operator. Doc. 37-1 ¶ 17. An internal memo from BJCTA President James O. Hill to

BJCTA Interim Human Resources Director Michael Simms states that “Ms.

Killingsworth’s termination was justified” because she was “unable to return to her

position at the expiration off [sic] her [medical] leave.” See doc. 33-6 at 2.

After her discharge, in December 2016, the Social Security Administration

granted Killingsworth’s application for disability insurance benefits, finding that she

had been, and remained, disabled under the Social Security Act since April 9, 2015.

Doc. 33-8 at 5. According to the Administrative Law Judge (ALJ)’s opinion,

Killingsworth’s “impairments collectively precluded her from performing sustained

work related physical and mental activities in a work setting on a regular and

continuous basis, 8 hours per day, 40 hours per week, or equivalent work schedule .

. .” Doc. 33-8 at 9. The ALJ also concluded that Killingsworth was “unable to

perform any past relevant work” and that “there are no jobs that exist in significant

numbers in the national economy that [Killingsworth] can perform.” Id.

III. ANALYSIS

As an initial matter, Killingsworth’s pleads several claims that she has

subsequently conceded or abandoned. In her response to BJCTA’s motion,

Killingsworth explicitly conceded her ADEA claims, and her “gender claims as they

relate to all claims except her termination.” See doc. 37 at 3 n.1. Furthermore,

Killingsworth’s responsive brief fails to address her ADEA discriminatory discharge

claim, and her ADEA, ADA, and Title VII claims for the failure to hire her for the

supervisory position. See doc. 37. “[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.” Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d

587, 599 (11th Cir. 1995). Accordingly, to the extent that Killingsworth did not

explicitly concede these claims, the court finds that she abandoned them.

Killingsworth’s remaining claims on summary judgment are that BJCTA: (1) failed

to accommodate her in violation of the ADA, and (2) discharged her based on her

disability and/or gender in violation of the ADA and/or Title VII.2 The court

addresses each of these claims in turn.

A. Statutory Background

Killingsworth asserts claims under the ADA, as amended by the ADAAA,3

and Title VII. Under the ADA, an employer cannot discriminate “against a qualified

individual on the basis of disability in regard to job application procedures, the

hiring, advancement, or discharge of employees . . .” 42 U.S.C. § 12112(a).

Similarly, Title VII makes it unlawful to, inter alia, “fail or refuse to hire or to

discharge . . . any individual . . . because of such individual’s . . . sex . . .” See 42

U.S.C. § 2000e-2. A plaintiff may establish discrimination under these statutes, in

part, by using circumstantial evidence of discrimination and relying on the

2 Killingsworth also asserts, for the first time in her response, a claim that BJCTA discriminated

against her based on her race. See doc. 37 at 3, 12-16. Although the Complaint cites 42 U.S.C. §

1981a, which creates a cause of action for race discrimination claims, the Complaint does not

allege race discrimination or make any mention of Killingsworth’s race or the race of any other

individual. See doc. 1. Nor does the EEOC complaint, which Killingsworth attached to her

Complaint, make any mention of race. See doc. 1-1. Under Federal Rule of Civil Procedure 8, a

complaint must contain “a short and plain statement of the claim” that “give[s] the defendant fair

notice of what the plaintiff’s claim is and the grounds upon which it rests.” Hunt v. Aimco

Properties L.P., 814 F.3d 1213, 1222 (11th Cir. 2016) (quoting Swierkiewicz v. Sorema N.A., 534

U.S. 506, 512 (2002)). Merely citing § 1981a in the Complaint, without more, is plainly

insufficient to satisfy this requirement. See id.; Fed. R. Civ. P. 8(a)(2). Accordingly, Killingsworth

has not adequately plead a race discrimination claim.

3 In 2008, Congress amended the ADA pursuant to the ADAAA, which, inter alia, expanded the

coverage of the ADA. See Mazzeo v. Color Resolutions Intern., LLC, 746 F.3d 1264, 1267 (11th

Cir. 2014) (noting that Congress intended for the ADAAA to “lessen the standard of establishing

whether an individual has a disability for purposes of coverage under the ADA”). “Because the

critical events in this case . . . took place after the ADAAA went into effect,” the court applies the

post-ADAAA version of the ADA. See Mazzeo, 746 F.3d at 1267 (noting that the ADAAA became

effective on January 1, 2009).

McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973); McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir.

2008) (applying the McDonnell Douglas framework to Title VII claim); Cleveland

v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (applying

McDonnell Douglas framework to ADA claim). Under this framework, once the

plaintiff establishes a prima facie case, a presumption of discrimination arises, and

the burden shifts to the defendant to articulate a legitimate, non-discriminatory

reason for the challenged conduct. Cleveland, 369 F.3d at 1193. The defendant

“simply ha[s] the burden of production;” it need not “persuade the court it was

motivated by the [proffered] reason.” Id. (citation omitted); see Chapman v. Al

Transport, 229 F.3d 1012, 1024 (11th Cir. 2000). If the defendant does so, defeating

the presumption of discrimination, the burden then shifts back to the plaintiff to show

the articulated reason is “unworthy of credence” and a pretext for discrimination.

Cleveland, 369 F.3d at 1193. However, “[i]f the plaintiff fails to proffer sufficient

evidence to create a genuine issue of material fact as to whether each of the

defendant’s proffered reasons is pretextual, the defendant is entitled to summary

judgment.” Wascura v. City of South Miami, 257 F.3d 1238, 1243 (11th Cir. 2001).

To establish a prima facie ADA violation, a plaintiff must show that: (1) she

is disabled; (2) she was a “qualified individual” at the relevant time, meaning she

could perform the essential functions of the job in question with or without

reasonable accommodations; and (3) she was discriminated against because of her

disability. See Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001).

Notably, “[a]n 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

v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262 (11th Cir. 2007). In other words, if

the plaintiff establishes a failure to provide reasonable accommodation based on

circumstantial evidence, she need not satisfy the elements of the McDonnell Douglas

burden-shifting framework. Id.

On the other hand, to establish a prima facie case for disparate treatment under

Title VII, a plaintiff must show that: “(1) [s]he is a member of a protected class; (2)

[s]he was qualified for the position; (3) [s]he suffered an adverse employment action;

and (4) [s]he was replaced by a person outside [her] protected class or was treated

less favorably than a similarly-situated individual outside [her] protected class.”

Maynard v. Bd. of Regents of Div. of Universities of Fla. Dep't of Educ. ex rel. Univ.

of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003).

B. Failure to Accommodate Claim

BJCTA contends that Killingsworth cannot establish a failure to

accommodate under the ADA. While BJCTA concedes that Killingsworth was an

individual with a disability, see docs. 33; 38, it contends that Killingsworth’s failure

to accommodate claim fails, first, because she is estopped from contending that she

is a “qualified individual,” and, second, because she could not perform the essential

duties of the Bus Operator position. See doc. 33 at 29-32.

1. Whether Killingsworth’s Receipt of SSDI Estops Her From

Asserting That She Was Qualified for the Bus Operator Position.

The ADA defines a “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.” 42 U.S.C. § 12111(8).

BJCTA contends that Killingsworth’s receipt of SSDI benefits creates a rebuttable

presumption that she is judicially estopped from asserting that she was a “qualified

individual” under the ADA, and that Killingsworth has offered no evidence to rebut

that presumption. See doc. 38 n.5.4 In Cleveland v. Policy Management Systems

Corporation, the Supreme Court held that “pursuit, and receipt, of SSDI benefits

does not automatically estop the recipient from pursuing an ADA claim.” 526 U.S.

795, 797 (1999). However, “[t]o survive a defendant’s motion for summary

judgment, [the plaintiff] must explain why [her] SSDI contention [that she was too

disabled to work] is consistent with her ADA claim that she could ‘perform the

4 Although the BJCTA makes this contention for the first time in its reply brief, it does so in

response to Killingsworth’s contention that she is not judicially estopped from asserting her ADA

claims. See doc. 37 at 17-24. Thus, although the court “ordinarily do[es] not consider arguments

raised for the first time on reply[,]” because Killingsworth raised this issue, the court will consider

this contention. See Pennsylvania Nat. Mut. Cas. Ins. Co. v. J.F. Morgan Gen. Contractors, Inc.,

79 F. Supp. 3d 1245, 1256 (N.D. Ala. 2015) (citation omitted).

essential functions’ of her previous job, at least with ‘reasonable accommodation.’”

Id. at 798. Subsequently, in Hayes v. Voestalpine Nortrak, Inc., on which BJCTA

relies, this court held that, based on Cleveland, an ADA plaintiff’s SSDI application

and subsequent receipt of SSDI created “a rebuttable presumption that [he] is

judicially estopped from asserting that [he] is a qualified individual with a

disability.” 185 F. Supp. 3d 1314, 1320 (N.D. Ala. 2016) (citing Cleveland, 526 U.S.

at 797-98).

However, in Hayes, unlike here, the record before the court included the

plaintiff’s SSDI application, in which “he claimed total disability[.]” Id. Although

BJCTA has proffered the ALJ’s findings that, inter alia, Killingsworth “has been

under a disability [under the SSA] since . . . [her] alleged onset date of disability,”

doc. 33-8 at 10, and that Killingsworth cannot perform any “past relevant work,” id.

at 9, it has not shown that Killingsworth claimed “total disability” or an inability to

perform the essential functions of a bus operator in her SSDI application. See Hayes,

185 F. Supp. 3d at 1320. Accordingly, the court cannot conclude, based on the record

before it, that the failure to accommodate claim is inconsistent with any “previous

sworn statement” by Killingsworth in her SSDI claim. See Cleveland, 526 U.S. at

806-07 (explaining that, “[w]hen faced with a plaintiff’s previous sworn statement

asserting ‘total disability’ or the like, the court should require an explanation of any

apparent inconsistency with the necessary elements of an ADA claim.” (emphasis

added)); Talavera v. Sch. Bd. of Palm Beach Cty., 129 F.3d 1214, 1220 (11th

Cir.1997) (“[A]n ADA plaintiff is estopped from denying the truth of any statements

made in her disability application.” (emphasis added)). Therefore, BJCTA is not

entitled to a rebuttable presumption of judicial estoppel.

2. Whether Killingsworth Was a Qualified Individual Under the

ADA.

To show that she is a “qualified individual,” “an ADA plaintiff must show

either that [s]he can perform the essential functions of [her] job without

accommodation, or, failing that, . . . that [s]he can perform the essential functions of

[her] job with a reasonable accommodation.” Holly, 492 F.3d at 1256. “An

accommodation can qualify as ‘reasonable,’ and thus be required by the ADA, only

if it enables the employee to perform the essential functions of the job.” Lucas, 257

F.3d at 1256. The plaintiff “bears the burden of identifying an accommodation, and

of demonstrating that the accommodation allows [her] to perform the job’s essential

functions.” See Lucas, 257 F.3d at 1255–56.

“The ADA’s implementing regulations provide that ‘[t]he term essential

functions means the fundamental job duties of the employment position the

individual with a disability holds or desires,’ and ‘does not include the marginal

functions of the position.’” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1230

(11th Cir. 2005) (quoting 29 C.F.R. § 1630.2(n)(1)). Given that the ability to drive a

bus is “the reason the [bus operator] position exists,” this constitutes an “essential

function.” See D’Angelo, 422 F.3d at 1230 (noting that, pursuant to the ADA

regulations, “a job function may be deemed essential [if] . . . the reason the position

exists is to perform the function[.]”); see 29 C.F.R. § 1630.2(n)(2)(i). Furthermore,

BJCTA’s job description for the bus operator position, which was in effect at the

time of Killingsworth’s termination, see doc. 33-1 at 1, lists as an “essential dut[y]”

that the employee must “operate[] wheelchair lifts and assist[] handicapped [sic] in

boarding, riding and alighting in a safe manner[,]” id. at 2. The job description also

notes that, in order “to successfully perform the essential functions of [the] job,” the

employee will be “regularly required to sit; use of hands and fingers, handle or feet

reach with hands and arms; . . . . Position requires ability to lift, push, pull, assist and

secure wheelchair passengers and a minimum of 50 lbs.” Doc. 33-1 at 4.

Accordingly, in light of this “written description” of the job, the court also finds that

assisting disabled passengers is an “essential function” of the position. See 42 U.S.C.

§ 12111(8) (“[C]onsideration shall be given to the employer’s judgment as to what

functions of a job are essential, and if an employer has prepared a written description

before advertising or interviewing applicants for the job, this description shall be

considered evidence of the essential functions of the job.”).

It is undisputed that Killingsworth could not perform the “essential functions”

of a bus operator—namely, the functions of driving a bus and assisting disabled

passengers—without reasonable accommodation. See doc. 38 at 7; 37. As BJCTA

notes, in granting Killingsworth SSDI benefits, the ALJ found that Killingsworth

had been disabled under the SSA since April 9, 2015, and that her impairments

prevented her from performing “any past relevant work” including “sustained work

related physical and mental activities in a work setting on a regular and continuous

basis, 8 hours per day, 40 hours per week[.]” See doc. 33-8 at 9-10. Moreover,

Killingsworth stated in her declaration that, prior to her termination, she informed

King that: she was limited in her ability to stand, sit, reach, lift and bend, all of which

caused her severe pain, see doc. 37-1 ¶ 12; that she had permanent joint and back

pain “that was exacerbated by continuing to drive a bus,” id. ¶ 13; and that she “could

not lift, push, pull or assist and secure passengers that needed physical assistance or

lift fifty pounds,” id. ¶ 14. And, it is also undisputed that Killingsworth cannot

identify a “reasonable accommodation” that would allow her to perform the essential

functions of this position. See Lucas, 257 F.3d at 1255–56; doc. 37.5 Thus,

Killingsworth was not a “qualified individual” for the bus operator position.

5 In the interest of completeness, the court notes two possible instances in the record that could

constitute requests by Killingsworth for an accommodation of additional leave: (1) Dr. Odi’s July

20, 2016 letter, recommending that Killingsworth be excused “from work for an additional

month,” see doc. 33-5 at 2; and (2) his second letter, stating that Killingsworth “cannot return to

work at this time due to ongoing medical issues which have not improved,” see id. at 3. “[S]everal

courts have specifically found that a doctor’s note with restrictions is sufficient to constitute a

request for an accommodation.” Roundtree v. Florida, No. 3:13-cv-1490-J-25-MCR, 2015 WL

3756811, *4 (M.D. Fla. May 26, 2015). However, there is no evidence that additional leave would

have “enable[d] [Killingsworth] to perform the essential functions of the job.” See Lucas, 257 F.3d

at 1256. “Nothing in the text of the reasonable accommodation provision requires an employer to

wait for an indefinite period for an accommodation to achieve its intended effect.” Duckett v.

Dunlop Tire Corp., 120 F.3d 1222, 1226 (11th Cir. 1997) (citation omitted). Accordingly, there is

3. Whether BJCTA Failed to Accommodate Killingsworth

Killingsworth contends also that BJCTA violated the ADA because it failed

to engage in an “interactive process” to determine whether she was “qualified to

perform the essential functions of any other positions[.]” See doc. 37 at 9. The ADA

regulations provide that, “‘[t]o determine the appropriate reasonable

accommodation, it may be necessary for [an employer] to initiate an

informal, interactive process with the qualified individual with a disability [. . .]’ to

identify the employee’s limitations and any possible accommodations.” See

Williams v. Revco Disc. Drug Centers, Inc., 552 F. App’x 919, 922 (11th Cir. 2014)

(quoting 29 C.F.R. § 1630.2(o)(3)); doc. 37 at 9-12. Accordingly, Killingsworth

contends that BJCTA’s duty to engage in the “interactive process” was triggered

when she “requested a reasonable accommodation regarding her work limitations[,]”

but that it failed to fulfill this obligation. See doc. 37 at 11.

However, “the ADA provides no cause of action for ‘failure to investigate’

possible accommodations[.]” Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir.

1997) (citing Moses v. American Nonwovens, Inc., 97 F.3d 446, 448 (11th Cir.

1996)). “Where the employee fails to identify a reasonable accommodation, the

employer has no affirmative duty to engage in an ‘interactive process’ or to show

no evidence in the record that a “reasonable accommodation” would enable Killingsworth to

perform the essential functions of a bus operator.

undue hardship.” Spears v. Creel, 607 F. App’x 943, 948 (11th Cir. 2015) (per

curiam) (citing Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000)). In other

words, “where a plaintiff cannot demonstrate ‘reasonable accommodation,’ the

employer’s lack of investigation into reasonable accommodation is unimportant.”

Willis, Inc., 108 F.3d at 285; see McKane v. UBS Fin. Servcs., Inc., 363 F. App’x

679, 682 (11th Cir. 2010) (finding that showing a specific “request for

accommodation” was insufficient if plaintiff could not establish that a reasonable

accommodation existed).

Killingsworth contends that her request to King for placement in “a

supervisory or other non-driving position” due to her disability was a request for

reasonable accommodation. See doc. 37 at 11; 37-1 ¶ 13. While a “[r]easonable

accommodation may include: . . . reassignment to a vacant position, . . . .,” 42 U.S.C.

§ 12111(9)(B); see 29 C.F.R. § 1630.2(o)(2), “[r]eassignment to another position is

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

employee is otherwise qualified,” Duckett v. Dunlop Tire Corp., 120 F.3d 1222,

1226 (11th Cir. 1997) (emphasis in original) (quoting Willis, 108 F.3d at 285).

Furthermore, the ADA does not “require [an] employer to promote a disabled

employee” as an accommodation. See Lucas, 257 F.3d at 1256. Here, however, while

the BJCTA repeatedly refers to selection for the road supervisor/dispatch supervisor

position(s) as a promotion, see generally docs. 33, 38, the sparse record does not

contain any information about what the position(s) entailed, and it is unclear if

Killingsworth’s selection for the position(s) would have resulted in a promotion for

her. Therefore, the court cannot find at this juncture that her rejection for the

position(s) does not qualify as a failure to accommodate. See docs. 37-1 ¶ 9; 33-7 at

22. Likewise, the court cannot find on this record, as BJCTA alleges, that

Killingsworth’s award of SSDI meant “Killingsworth was not qualified for any

position . . .” (emphasis by BJCTA). See doc. 33 at 32. Therefore, because BJCTA

challenges Killingsworth’s qualifications solely on the SSA’s finding and has not

argued otherwise that Killingsworth does not have the proper qualifications or

experience for the position(s), or that reassignment would be unreasonable under

BJCTA’s “existing policies,” see U.S.E.E.O.C. v. St. Joseph’s Hospital, Inc., 842

F.3d 1333, 1345 (11th Cir. 2016) (citation omitted), BJCTA’s motion on the failure

to accommodate claim fails. See Howell v. Michelin Tire Corp., 860 F. Supp. 1488,

1492-93 (M.D. Ala. 1994) (finding genuine issue of material fact as to whether

defendant could have reasonably accommodated plaintiff by reassigning him to

“new, less strenuous positions”). The claim will proceed as to Killingsworth’s

contention related to her request for placement in road supervisor/dispatch

supervisor positions, or “other non-driving positions.”

C. Discriminatory Discharge Claims

Next, BJCTA contends that Killingsworth cannot establish discriminatory

discharge claims under the ADA or Title VII. See docs. 33; 38. Killingsworth relies

on circumstantial evidence to establish her discriminatory discharge claims and,

therefore, the court will analyze these claims under the McDonnell Douglas

framework. See McCann, 526 F.3d at 1373; Cleveland, 369 F.3d at 1193.

1. Whether Killingsworth Can Satisfy A Prima Facie Title VII Violation

It is undisputed that Killingsworth, as a woman, is a member of a protected

class under Title VII, see doc. 33 at 11, and her termination was an “adverse

employment action.” Therefore, she satisfies the first and third prong of her prima

facie case. See Maynard, 342 F.3d at 1289; Crawford v. Carroll, 529 F.3d 961, 970

(11th Cir. 2008) (defining an “adverse employment action” as including

termination). At issue here is BJCTA’s contention that Killingsworth cannot satisfy

the second prong—that she was qualified for the bus operator position from which

she was discharged. See id.; doc. 33 at 12-13.

“[T]o demonstrate that [s]he was qualified for the position, a Title VII plaintiff

need only show that . . . she satisfied an employer’s objective qualifications.” Vessels

v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005). However, as BJCTA

notes, Killingsworth cannot satisfy the objective qualifications of the position,

which, inter alia, requires the “ability to lift, push, pull, assist and secure wheelchair

passengers and a minimum of 50 lbs.” See doc. 33-1 at 4. As discussed, supra III.B.2,

Killingsworth stated that she “could not lift, push, pull or assist and secure

passengers that needed physical assistance or lift fifty pounds.” Doc. 33-1 ¶ 14.

Accordingly, Killingsworth cannot satisfy the “objective qualifications” of the bus

operator position and, therefore, cannot establish a prima facie case under Title VII.

See Anderson v. Embarq/Spring, 379 F. App’x 924, 928-29 (11th Cir. 2010) (finding

that the Title VII discharge claim failed because plaintiff could not satisfy the

“objective employment qualifications” of his job as a result of his disabilities).

Nevertheless, even if Killingsworth was qualified for her position, she has not

produced sufficient evidence to satisfy the fourth and final prong of her prima facie

case—that she “was replaced by a person outside [her] protected class or was treated

less favorably than a similarly-situated individual outside [her] protected class.” See

Maynard, 342 F.3d at 1289. To begin, there is no evidence in the record that

Killingsworth was replaced by anyone. See id. And, Killingsworth has failed to

demonstrate that she was “treated less favorably than a similarly-situated” male

employee. See id. Where, as here, a plaintiff relies on comparator evidence to

establish disparate treatment, she must demonstrate that she and her comparators are

“similarly situated in all material respects.” See Lewis v. City of Union City, Ga.,

918 F.3d 1213, 1224 (11th Cir. 2019). While this standard does not require

Killingsworth to produce comparators “nearly identical” to her, see id. at 1226-27,

she and her comparators “must be sufficiently similar, in an objective sense, that

they ‘cannot reasonably be distinguished[,]’” id. at 1228 (quoting Young v. United

Parcel Serv., Inc., 135 S. Ct. 1338, 1355 (U.S. 2015)). Courts must apply this

standard “on a case-by-case basis, in the context of the individual circumstances” of

the case, considering, among other things, whether the plaintiff and her comparators

“engaged in the same basic conduct (or misconduct),” were “subject to the same

employment, policy, guideline, or rule,” were “under the jurisdiction of the same

supervisor,” and shared similar employment or disciplinary histories. Id. at 1227-28

(citations omitted).

First, Killingsworth testified that “[m]ale, white, and/or non-disabled

employees . . . were allowed to take all of their leave time without being terminated.”

See doc. 37-1 ¶ 8. It is unclear, however, who the referenced “[m]ale, white, and/or

non-disabled employees” are: Killingsworth did not identify these individuals in her

declaration, see doc. 37-1, but named three individuals—Draper Mason, Chris

Ruffin, and “Copeland”—in her Interrogatory Responses who allegedly received

preferable treatment, see doc. 33-7 at 21. Assuming these individuals are the

employees who BJCTA allegedly allowed to take all of their leave time without

termination, however, Killingsworth has not shown that they are “similarly situated

in all material respects.” See Lewis, 918 F.3d at 1227-28. Killingsworth has not

provided any evidence that these individuals shared the same position as her, shared

a similar employment history, or were subject to the same 18-month policy that

governed Killingsworth’s leave time. See Lewis, 918 F.3d at 1227-28. Indeed,

without more information, Killingsworth cannot raise a genuine issue of material

fact that the three employees “cannot reasonably be distinguished” from her. Id. at

1228.

Next, Killingsworth testified that a “white [male] bus driver who had been

terminated for being under the influence or impaired while at work was allowed to

transfer to a previously non-existent customer service position and remained there

until his retirement.” See doc. 37-1 ¶ 17. Killingsworth waited, however, until her

response to the motion for summary judgment to mention this individual even

though BJCTA specifically asked her in written discovery to “[i]dentify by name

and age the ‘younger male and/or nondisabled’ [BJCTA] employees whom you

allege to have received preferably [sic] treatment as described in your complaint.”

See doc. 33-7 at 21.6 Absent a showing of substantial justification or harmlessness,

which Killingsworth has not made, she cannot defeat summary judgment by citing

evidence she never disclosed during discovery. See Fed. R. Civ. P. 37(c)(1) (“If a

6 In response to this question, Killingsworth identified, “Draper Mason, 30s[.] Chris Ruffin-

Plaintiff cannot recall age at this present time. Copeland-Plaintiff cannot recall age or first name

at this present time.” See doc. 33-7 at 21. Additionally, when asked to “[i]dentify and describe

with specificity and particularity each and every fact which supports your claim that the defendants

discriminated against you on the basis of your sex as referenced in the Complaint[,]” Killingsworth

stated, “[a]fter being placed on sick leave, Defendant hired multiple males in the supervisory

position Plaintiff applied for.” Id. at 16.

party fails to provide information . . . as required by Rule 26(a) or (e), the party is

not allowed to use that information . . . to supply evidence on a motion . . . unless

the failure was substantially justified or is harmless.”). Moreover, the bus driver is

not “similarly situated in all material respects” to Killingsworth because he did not

“engage[] in the same basic conduct”: he was allegedly terminated “for being under

the influence or impaired while at work,” see doc. 37-1 ¶ 17, not for exceeding his

leave time and being “unable to return to [his] position[,]” see doc. 33-6 at 2. See

Lewis, 918 F.3d at 1227. Finally, like the three “male, white, and/or non-disabled

employees” Killingsworth mentions, there is no evidence that the unidentified

“white bus driver” shared a similar employment history to Killingsworth. See doc.

37-1 ¶ 17. Therefore, Killingsworth cannot establish a prima facie case of Title VII

gender discrimination based on her termination.

2. Whether Killingsworth Can Satisfy A Prima Facie ADA Violation

As discussed, supra III.B.2, Killingsworth cannot show that she is a “qualified

individual” within the meaning of the ADA because she cannot perform the essential

functions of the bus operator position, with or without reasonable accommodation.

See 42 U.S.C. § 12111(8); McCoy v. Geico General Ins. Co., 510 F. Supp. 2d 739,

748 (M.D. Fla. 2007) (noting that prima facie case for discrimination under ADA is

the same under disparate treatment and failure to accommodate theories). However,

even if Killingsworth could show she was a “qualified individual,” she has not

produced sufficient evidence to show she was discharged “because of [her]

disability.” See Lucas, 257 F.3d at 1255. “Liability in a disparate-treatment case

[under the ADA] ‘depends on whether the protected trait . . . actually motivated the

employer’s decision.’” Raytheon Co. v. Hernandez, 540 U.S. 44, 52 (2003) (citation

omitted). Apart from her failure to accommodate claim, Killingsworth advances no

argument as to how the record indicates that her disability “actually motivated”

BJCTA’s decision to discharge her. See Resolution Tr. Corp., 43 F.3d at 599 (“There

is no burden upon the district court to distill every potential argument that could be

made based upon the materials before it on summary judgment.”). To the extent

Killingsworth relies on any of her proffered comparators to demonstrate

discrimination, these comparators are not “similarly situated” for the reasons

discussed above, in addition to the fact that she has not identified which, if any, of

them are non-disabled. See supra III.C.1; Lewis, 918 F.3d at 1227-28; Hill v. Branch

Banking and Trust Co., 264 F. Supp. 3d 1247, 1260 (N.D. Ala. 2017) (finding that

plaintiff failed to show she was terminated “because of” her disability in part because

her comparators were not “similarly situated”). Therefore, Killingsworth cannot

establish a prima facie case of ADA discrimination based on her discharge.

3. Whether Killingsworth Can Demonstrate Pretext

Even assuming that Killingsworth could establish a prima facie case under the

ADA and/or Title VII, she has not produced sufficient evidence to rebut BJCTA’s

proffered nondiscriminatory reason for her discharge. See Cleveland, 369 F.3d at

1193. BJCTA proffers that it discharged her because she was “unable to return to

her position” after using her allowable medical leave time. See doc. 33 at 17-18; 33-

6 at 2. In response, Killingsworth contends that these reasons are pretextual because

the record indicates BJCTA “deviat[ed] from a normal policy or procedure . . . in a

discriminatory manner.” See doc. 37. In support of this contention, Killingsworth

cites again the BJCTA’s rehiring of an unnamed white male bus driver to a new

position after discharging him. See doc. 37 at 14-15. However, in addition to not

disclosing this individual during discovery, Killingsworth fails to identify any

established “policy or procedure” that BJCTA purportedly deviated from in rehiring

the bus driver. See Walker v. Prudential Property and Cas. Ins. Co., 286 F.3d 1270,

1279 (11th Cir. 2002) (finding that defendant’s decision not to post a job opening

did not deviate from “a clearly established personnel policy”); Dukes v. Shelby Cty.

Bd. of Educ., No. 2:16-CV-00340-RDP, 2018 WL 925256, at *11 (N.D. Ala. Feb.

16, 2018), aff’d, 762 F. App’x 1007 (11th Cir. 2019) (finding plaintiff failed to show

defendant deviated from standard procedures where he failed to identify an

“established policy”). Furthermore, the circumstances surrounding the bus driver’s

rehiring are distinguishable, given that BJCTA allegedly discharged him for being

under the influence, an issue which, unlike Killingsworth’s, is one that is treatable

and does not render him unable to return to work after using his medical leave time.

See doc. 37-1 ¶ 17. See Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1279-80 (11th

Cir. 2008) (finding plaintiff failed to show pretext based on favorable treatment of

purported comparator because comparator’s alleged misconduct differed from

plaintiff’s).

Next, Killingsworth contends that she had not used up all of her allowable

medical leave and, therefore, this proffered reason is pretextual. See doc. 37 at 4-5;

37-1 ¶¶ 7. However, it is unclear why Killingsworth believes this to be the case,

given that she took leave for medical reasons from May 13, 2014 to August 5, 2014,

see docs. 33-3 at 2-5; 37-1 ¶ 3, and again from April 9, 2015 to August 25, 2016, see

doc. 37-1 ¶¶ 6-7, totaling over eighteen months of medical leave. See doc. 33-2 at 3

(noting that an employee’s leave of absence is “not to exceed a total medical leave

of absence of 18 months.” (emphasis added)). To the extent Killingsworth contends

that her 2014 period of leave does not count as “personal medical leave” under the

CBA because she received worker’s compensation during that time, see doc. 37-1 ¶

3, she has produced no evidence to that effect. Moreover, Killingsworth does not

dispute that she was “unable to return to her position” when her leave purportedly

expired on July 20, 2016 or when BJCTA discharged her on August 25, 2016. See

doc. 33-6 at 2; 37-1. Accordingly, Killingsworth has failed to rebut BJCTA’s

proffered nondiscriminatory reason for her termination.

4. Whether Killingsworth Can Otherwise Demonstrate Discrimination

As Killingsworth notes, “establishing the elements of the McDonnell Douglas

framework is not, and never was intended to be, the sine qua non for a plaintiff to

survive a summary judgment motion in an employment discrimination case.” Smith

v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Killingsworth

contends that, even if she cannot satisfy the elements of the McDonnell Douglas

framework for her discrimination claims, the record presents “a convincing mosaic

of circumstantial evidence that would allow a jury to infer intentional discrimination

by the decisionmaker.” See id. (citation omitted); doc. 37 at 12-16. However, “[t]o

the extent [the plaintiff] relies on a mosaic of discrimination theory, he must present

the tiles and create the mosaic instead of expecting the court to piece it together for

him.” Murphree v. Colvin, No. CV-12-BE-1888-M, 2015 WL 631185, at *8 (N.D.

Ala. Feb. 13, 2015). The only fact that Killingsworth identifies as creating a

“convincing mosaic of circumstantial evidence” is the unnamed white male bus

driver BJCTA rehired after discharge she mentions for the first time in opposition to

summary judgment. See doc. 37 at 14-15. For the reasons discussed above, supra

III.C.3, this sole fact is insufficient to establish “a convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional discrimination

by the decisionmaker.” Compare Smith, 644 F.3d at 1328 (finding sufficient

circumstantial evidence where plaintiff presented evidence that employer used

discipline “matrix” that considered his white race and issued less severe sanctions

for African-American employees than white employees) with Awaad v. Largo

Medical Center, Inc., 564 F. App’x 541, 544 (11th Cir. 2014) (finding that single

comment from superior that plaintiff “was practicing medicine ‘the Palestinian

way” did not create a genuine issue of material fact that there was a “convincing

mosaic of circumstantial evidence” of discrimination).

IV. CONCLUSION

Based on this record, Killingsworth has failed to show a genuine issue of

material fact exists concerning her ADA or Title VII discriminatory discharge

claims. Therefore, BJCTA’s motion is due to be granted as to these claims. However,

Killingsworth has raised a genuine issue of material fact as to whether BJCTA failed

to provide a reasonable accommodation when it did not hire her for the road

supervisor/dispatch supervisor position(s). Therefore, BJCTA’s motion for

summary judgment is due to be denied on Killingsworth’s failure to accommodate

claim. The court will issue a separate order consistent with these findings.

DONE the 19th day of August, 2019.

Apap 2h tee

ABDUL K. KALLON

UNITED STATES DISTRICT JUDGE

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