Toney v. Alabama A&M University

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

PORTIA R. TONEY, )

)

Plaintiff, )

)

v. ) Case No. 5:21-cv-689-LCB

)

ALABAMA A&M UNIVERSITY, )

)

Defendant. )

OPINION & ORDER

Portia Toney sues her former employer, Alabama A&M University, for

disability discrimination under the Americans with Disabilities Act of 1990,

42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et

seq. (Doc. 1 at 5–9). In short, Toney alleges that the University fired her “because it

perceived her as being permanently impaired by or afflicted with COVID-19.”

(Doc. 32 at 21). The University now moves for summary judgment. (Doc. 26 at 1).

As explained below, Toney does not have a triable claim against the University

under the ADA or the Rehabilitation Act. The Court therefore grants the University’s

motion for summary judgment and dismisses Toney’s claims with prejudice.

I. BACKGROUND

The facts of this case are straightforward. In January 2019, Alabama A&M

University hired Portia Toney to serve as Secretary for the Office of Residential Life

and Housing. (Doc. 27-1 at 4). Her responsibilities included submitting requisitions,

answering calls and emails, and supervising student workers. (Doc. 27-2 at 3). Toney

reported directly to Karla Miller, Director of Residential Life and Housing. Id. Miller

reported to Dr. Gary Crosby, Vice President of Student Affairs. Id.

Between January 2019 and May 2020, a respiratory virus known as

COVID-19 emerged and spread to nearly every corner of the world. Alabama A&M

was not spared. (Doc. 27-3 at 8–9). In an effort to slow the spread of the virus, the

University closed its campuses, transferred its students to remote instruction, and

permitted all nonessential employees to work remotely. (Doc. 27-1 at 4);

(Doc. 27-4 at 3). The University later reopened its doors and adopted updated

COVID-19 protocols in June 2020. (Doc. 27-1 at 107–08). The protocols required

all faculty and staff members to immediately inform the University if they tested

positive for COVID-19 or developed COVID-19 symptoms. Id. at 108. All

employees without COVID-19 symptoms were ordered “to report to work as

normal.” Id.

The following month, Toney and two friends decided to take a “girls’ trip.”

(Doc. 27-6 at 25). They hopped on a train bound for New Orleans from Birmingham

on July 3 and spent a long weekend in The Big Easy before returning to Birmingham

on July 6. Id. at 24–25. Somewhere along the way, Toney lost her sense of taste and

smell, and began experiencing headaches, chills, and fatigue—common symptoms

of COVID-19. Id. at 18–19, 26; (Doc. 27-1 at 107).

On July 8, Toney visited her primary care physician, Dr. Michael Carter, and

underwent a COVID-19 test. (Doc. 27-6 at 27); (Doc. 31-2 at 3); (Doc. 31-3 at 3).

The test was positive. (Doc. 31-3 at 3). Without informing the University of her

symptoms or diagnosis, Toney worked on campus from July 13 to July 16.

(Doc. 27-2 at 7, 42); (Doc. 27-5 at 4–5); (Doc. 27-6 at 37–38). She returned to

Dr. Carter and again tested positive for COVID-19 on July 21. (Doc. 31-3 at 3). On

July 27, Dr. Carter provided Toney with a letter stating that she had twice tested

positive for COVID-19, but that she was no longer symptomatic and should be

allowed to return to work. Id. Toney emailed the letter to Human Resource officer

Latonya Crutcher that same day. (Doc. 27-5 at 22). In her email, Toney asked

whether she was cleared to return to work or whether she needed to remain in

quarantine. Id.

The following day, July 28, Crutcher informed Toney that she could not return

to work until she tested negative for COVID-19 and provided the University with a

copy of her results. Id. at 6, 30. Crutcher also asked Toney when she last visited

campus. Id. at 32. Toney replied that she had not been to campus since June 24 or

June 25. Id. at 31. Immediately after her exchange with Toney, Crutcher called

Dr. Jarrett Walton—Director for the Office of Human Resources—and informed

him that Toney had waited nearly three weeks to disclose that she had tested positive

for COVID-19, in violation of University protocol. (Doc. 27-1 at 2, 7); (Doc. 27-5

at 6.

Later that day, Crutcher and Dr. Walton held a telephone conference with

Toney to discuss her failure to immediately report her COVID-19 symptoms and

diagnosis. (Doc. 27-1 at 7). During the call, Toney admitted that she worked on

campus from July 13 to July 16 despite the fact that she had not disclosed her

diagnosis to the University or received approval to return to campus. Id. at 132–34;

(Doc. 27-6 at 37–38). Dr. Walton advised Toney that her actions were “of major

concern and that additional follow up [might] occur.” (Doc. 27-1 at 134).

On August 4, Toney tested negative for COVID-19 and provided the

University with a copy of her results. (Doc. 27-5 at 6). The University received

Toney’s results and cleared her to return to work on August 7. (Doc. 27-1 at 9).

Toney reported to campus as scheduled. (Doc. 27-6 at 40–41). At the end of the day,

Toney received a letter informing her that the University was terminating her

employment effective immediately. (Doc. 27-1 at 150). The letter itself did not

provide any explanation for the decision. Id. This suit followed.

II. LEGAL STANDARD

The purpose of summary judgment is to identify and dispose of cases where

the evidence is insufficient to merit holding a trial. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under Federal Rule of Civil

Procedure 56, summary judgment is appropriate when a 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(a). A material fact is one “that might affect the

outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if “the evidence

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

To survive summary judgment, a nonmovant must assert facts that make a

sufficient showing on every essential element of his case on which he bears the

burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Factual

allegations must cite to specific evidentiary materials in the record. FED. R. CIV.

P. 56(c). Unsupported, speculative allegations do “not create a genuine issue of fact”

and are not sufficient to withstand summary judgment. Cordoba v. Dillard’s, Inc.,

419 F.3d 1169, 1181 (11th Cir. 2005) (quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d

928, 931–32 (7th Cir. 1995)). When ruling on a summary judgment motion, a court

construes the evidence in the light most favorable to the nonmovant and resolves all

reasonable doubts about the facts in the nonmovant’s favor. Kroma Makeup EU,

LLC v. Boldface Licensing + Branding, Inc., 920 F.3d 704, 707 (11th Cir. 2019).

III. DISCUSSION

Toney claims that the University unlawfully discriminated against her on the

basis of disability (COVID-19) under Title I of the ADA and Section 504 of the

Rehabilitation Act. (Doc. 1 at 5–9).1 Title I of the ADA makes it unlawful to

“discriminate against a qualified individual on the basis of disability in regard to . . .

discharge of employees.” 42 U.S.C. § 12112(a). Similarly, Section 504 of the

Rehabilitation Act “prohibits recipients of federal financial assistance from

discriminating against individuals with disabilities.” Garrett v. Univ. of Ala. at

Birmingham Bd. of Trs., 507 F.3d 1306, 1310 (11th Cir. 2007). The standard for

determining liability is the same under both statutes, and cases involving the ADA

are precedent for those involving the Rehabilitation Act and vice versa. Ellis v.

England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam).2 Accordingly, the

Court considers Toney’s discrimination claims together.

1 The ADA is divided into four parts: Title I prohibits disability discrimination in employment,

42 U.S.C. § 12112(a); Title II prohibits disability discrimination in public services furnished by

governmental entities, id. § 12132; Title III prohibits disability discrimination in public

accommodations provided by private entities, id. § 12182(a); and Title IV prohibits retaliation and

coercion against individuals who exercise their rights under the ADA, id. § 12203(a). Here, Toney

states that her ADA claim arises under Title II, but alleges that the University discriminated against

her in violation of § 12112 (Title I). (Doc. 1 at 5–6). The Court assumes Toney’s ADA claim arises

under Title I for purposes of this opinion. That said, the legal conclusions below would be the same

if Toney’s ADA claim arises under Title II.

2 Cases involving Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the Age

Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., are also precedent for

purposes of analyzing discrimination claims brought under the ADA and the Rehabilitation Act.

Rizo v. Ala. Dep’t of Hum. Res., 228 F. App’x 832, 835 (11th Cir. 2007) (per curiam) (“This Court

applies the law developed in Title VII, ADEA, and ADA cases interchangeably.”).

A plaintiff may prove disability discrimination with direct or circumstantial

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

establish discrimination through circumstantial evidence, a plaintiff must satisfy the

burden-shifting framework established in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). Ring v. Boca Ciega Yacht Club Inc., 4 F.4th 1149, 1163

(11th Cir. 2021). Here, Toney puts forth no direct evidence of discrimination. The

Court thus analyzes her claims in accordance with the McDonnell Douglas

framework.

Under that framework, a plaintiff bears the initial burden to establish a prima

facie case of discrimination.4 Flournoy v. CML-GA WB, LLC, 851 F.3d 1335, 1339

(11th Cir. 2017). If a plaintiff makes a prima facie case, the defendant must articulate

a legitimate, nondiscriminatory explanation for the adverse employment action.

Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir. 2020) (en

banc). If the defendant meets its burden, the plaintiff must ultimately prove by a

preponderance of the evidence that the defendant’s explanation is a pretext for

3 Direct evidence is that which, “if believed, proves the existence of a fact without inference or

presumption.” Todd v. Fayette Cnty. Sch. Dist., 998 F.3d 1203, 1215 (11th Cir. 2021) (quoting

Fernandez v. Trees, Inc., 961 F.3d 1148, 1156 (11th Cir. 2020)). Under Eleventh Circuit precedent,

“‘only the most blatant remarks, whose intent could mean nothing other than to discriminate on

the basis of some impermissible factor’ constitute direct evidence of discrimination.” Akouri v. St.

of Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (quoting Rojas v. Florida, 285 F.3d

1339, 1342 n.2 (11th Cir. 2002) (per curiam)).

4 A prima facie case is a “legally required rebuttable presumption.” Prima Facie Case, BLACK’S

LAW DICTIONARY, at 1228 (8th ed. 2004).

unlawful discrimination. Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir.

2001); Ramirez v. Bausch & Lomb, Inc., 546 F. App’x 829, 832 (11th Cir. 2013)

(per curiam).

A. Prima Facie Case

Toney fails to establish a prima facie case of discrimination. To make a prima

facia case of disability discrimination, a plaintiff must show: (1) she had a disability;

(2) she was otherwise qualified for the position; and (3) she was subjected to

unlawful discrimination as a result of her disability. Boyle v. City of Pell City,

866 F.3d 1280, 1288 (11th Cir. 2017). The term “disability” means: “(A) a physical

or mental impairment that substantially limits one or more major life activities of

such individual; (B) a record of such an impairment; or (C) being regarded as having

such an impairment.” 42 U.S.C. § 12102(1); see also 29 U.S.C. § 705(9)(B)

(incorporating § 12102). Here, the University admits that Toney was qualified for

her position. (Doc. 28 at 24). Toney concedes that she did not meet the first or second

definition of disability. (Doc. 32 at 20). Thus, the issue is whether the University

regarded Toney as having an impairment.

A plaintiff “meets the requirement of ‘being regarded as having such an

impairment’” if she establishes that “she has been subjected to an action prohibited

[by the ADA] because of an actual or perceived physical or mental impairment

whether or not the impairment limits or is perceived to limit a major life activity.”

42 U.S.C. § 12102(1). The relevant inquiry is whether the employer perceived the

plaintiff to have an impairment, not whether the plaintiff was actually impaired.

Forsyth v. Univ. of Ala., Bd. of Trs., 2021 WL 4075728, at *4 (11th Cir. Sept. 8,

2021) (per curiam).

There are two important caveats to the “regarded as” definition of disability.

First, the definition applies only when an employer perceives an employee as having

an existing impairment at the time of the adverse employment action. EEOC v.

STME, LLC, 938 F.3d 1305, 1316 (11th Cir. 2019). Second, the definition does “not

apply to impairments that are transitory and minor.” 42 U.S.C. § 12102(3)(B). An

impairment is transitory if it has “an actual or expected duration of 6 months or less.”

Id. Whether an impairment “is or would be ‘transitory and minor’ is to be determined

objectively.” 29 C.F.R. § 1630.15(f).

The University did not regard Toney as having an impairment. For starters,

the University did not perceive Toney as having COVID-19 at the time of her

termination. Toney tested negative for COVID-19 and provided the University with

her test results on August 4, 2020. (Doc. 27-6 at 39); (Doc. 31-3 at 12). The

University cleared Toney to return to work and allowed her on campus before firing

her on August 7. (Doc. 27-6 at 39–41); (Doc. 31-1 at 40). Thus, the University did

not perceive Toney as having COVID-19 at the time of her termination.

Furthermore, Toney’s COVID-19 infection was a transitory and minor

impairment. Courts routinely find that an impairment is transitory and minor when

a doctor’s note indicates that the impairment has a relatively quick recovery time.

E.g., Richardson v. Koch Foods of Ala., LLC, 2019 WL 1434662, at *7 (M.D. Ala.

Mar. 29, 2019) (concluding that heart blockages constituted a transitory and minor

impairment when a doctor’s note opined that the plaintiff would be able to return to

work within six weeks after diagnosis); White v. Interstate Distrib. Co., 438 F. App’x

415, 420 (6th Cir. 2011) (holding that a fractured leg was a transitory and minor

impairment when a doctor advised that the plaintiff’s restrictions would last no more

than two months). Courts also find that a COVID-19 infection—absent persistent,

long-lasting symptoms—is a transitory and minor impairment. Champion v.

Mannington Mills, Inc., 538 F. Supp. 3d 1344, 1349 (M.D. Ga. 2021); McCone v.

Exela Techs., Inc., 2022 WL 801772, at *4 (M.D. Fla. Jan. 14, 2022); cf. Brown v.

Roanoke Rehab. & Healthcare Ctr., 586 F. Supp. 3d 1171, 1179–80 (M.D. Ala.

2022) (finding that a plaintiff pleaded a facially plausible “regarded as” claim when

she alleged that “she was discharged shortly after informing her employer that she

was continuing to suffer from a severe, symptomatic case of COVID-19”).

Toney developed COVID-19 symptoms on July 3, 2020, and first tested

positive for the virus five days later. (Doc. 31-3 at 3). Her symptoms were not severe;

they included headaches, chills, fever, and loss of taste and smell. (Doc. 27-6

at 18–19, 26). And they lasted no more than three weeks. (Doc. 27-3 at 13);

(Doc. 27-6 at 27); (Doc. 31-3 at 10–12). Toney tested negative for the virus on

August 4, 2020, and officially resumed work on August 7. (Doc. 27-6 at 40–41);

(Doc. 31-3 at 3). Against this backdrop, Toney’s bout of COVID-19 was—

objectively—a transitory and minor impairment. Accordingly, the University did not

regard Toney as having an impairment for purposes of the ADA or the Rehabilitation

Act. Toney therefore fails to make a prima facie case of discrimination.

B. Legitimate Explanation & Pretext

Even assuming she makes a prima facie case, Toney fails to show pretext.

Once a plaintiff makes a prima facie case of discrimination, the burden shifts to the

defendant to articulate a specific, nondiscriminatory explanation for the adverse

employment action. Berman v. Orkin Exterminating Co., 160 F.3d 697, 702

(11th Cir. 1998). This burden is exceedingly light; the defendant must simply proffer

a nondiscriminatory reason, not prove the reason. Meeks v. Computer Assocs. Int’l,

15 F.3d 1013, 1019 (11th Cir. 1994). Should the defendant meet its burden, the

plaintiff must ultimately prove that the defendant’s reason is a pretext for unlawful

discrimination. Denney, 247 F.3d at 1183.

The University articulates a legitimate, nondiscriminatory reason for Toney’s

termination. An employee’s failure to abide by internal organizational policy is a

legitimate, nondiscriminatory reason for discharging the employee. Kragor v.

Takeda Pharms. Am., Inc., 702 F.3d 1304, 1309 (11th Cir. 2012); see also Turner v.

Wal-Mart Assocs., Inc., 2022 WL 18495863, at *27 (D.S.C. July 6, 2022) (finding

that a plaintiff’s failure to abide by the defendants’ COVID-19 policy constituted a

legitimate, nondiscriminatory reason for the plaintiff’s termination). Here, the

University explains that it fired Toney because she violated its COVID-19 protocol

requiring all faculty and staff members to immediately inform the University if they

tested positive for COVID-19 or experienced COVID-19 symptoms. (Doc. 27-2

at 9); (Doc. 28 at 35). The University thus articulates a legitimate, nondiscriminatory

reason for Toney’s termination.

Toney fails to prove that the University’s explanation is a pretext for unlawful

discrimination. To prove an explanation is pretextual, a plaintiff must show “both

that the reason was false, and that discrimination was the real reason” for the adverse

employment action. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). The

inquiry is whether there are “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in the proffered explanation that “a reasonable

factfinder could find [it] unworthy of credence.” Jackson v. St. of Ala. St. Tenure

Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005).

Nothing in the record indicates that the University’s explanation is false.

Toney developed COVID-19 symptoms on July 3, 2020, and tested positive for the

virus on July 8. (Doc. 31-3 at 3). Toney did not immediately inform the University

of her symptoms or diagnosis. (Doc. 27-2 at 7); (Doc. 27-5 at 4–5); (Doc. 27-6 at 27).

Instead, she worked on campus from July 13 to July 16 and again tested positive for

the virus on July 21 before finally informing the University of her diagnosis on

July 27. (Doc. 27-2 at 7, 42); (Doc. 27-5 at 4–5); (Doc. 27-6 at 37–38). There is no

genuine dispute that Toney’s actions violated University protocol requiring all

faculty and staff members to immediately inform the University if they tested

positive for COVID-19 or developed COVID-19 symptoms. (Doc. 27-1 at 108).

Accordingly, Toney fails to carry her ultimate burden to prove pretext—even if she

makes a prima facie case of discrimination.

IV. CONCLUSION

The federal judiciary is not in the business of examining whether employment

decisions are fair, prudent, or wise. Owens v. Governor’s Off. of Student

Achievement, 52 F.4th 1327, 1333 (11th Cir. 2022). The courts are concerned only

with “whether unlawful discriminatory animus motivates a challenged employment

decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361

(11th Cir. 1999). In this case, the University did not fire Toney out of discriminatory

animus. The University fired Toney because she blatantly disregarded its

COVID-19 protocols. (Doc. 27-2 at 8–9); (Doc. 27-7 at 18). Accordingly, Toney

does not have a triable discrimination claim against the University under the ADA

or the Rehabilitation Act.

The Court therefore GRANTS the University’s motion for summary

judgment (Doc. 26), DISMISSES Toney’s claims with prejudice, and DIRECTS

the Clerk of Court to close this case. The Court will enter a final judgment separately.

DONE and ORDERED February 13, 2023.

SG C Sha.

LILES C. BURKE

UNITED STATES DISTRICT JUDGE

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