“Jackson’s failure to survive summary judgment under Title VII is also fatal to her § 1981 claim, and the district court properly dismissed this claim.”
How later courts described this case
- “Jackson’s failure to survive summary judgment under Title VII is also fatal to her § 1981 claim, and the district court properly dismissed this claim.”
- “[C]ases involving the ADA are precedent for those involving the Rehabilitation Act.”
- “To be sure, Feliciano’s sworn statements are self-serving, but that alone does not permit us to disregard them at the summary judgment stage.”
- stating that a party “cannot readily complain about the entry of a summary judgment order that did not consider an argument they chose not to develop for the district court at the time of the summary judgment motions”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JACOB LOWE, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO.
) 2:20-cv-01806-MHH
MARK PETTWAY, et al., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
In this action, Jacob Lowe, a former deputy in the Jefferson County Sherriff’s
Office, asserts that the defendants fired him because he disclosed that he was
suffering from combat-related nightmares and substance abuse and checked into a
rehab facility for treatment. Mr. Lowe, who is Caucasian, contends that to the extent
the defendants argue that he violated JCSO policy, African-American JCSO
employees have violated policy without being terminated. The defendants, Sheriff
Mark Pettway and Chief Deputy Willie Hill, have asked the Court to enter judgment
in their favor on Mr. Lowe’s claims against them for race and disability-based
discrimination. Sheriff Pettway and Chief Deputy Hill argue that there were
legitimate, non-discriminatory reasons for Mr. Lowe’s termination.
This opinion resolves the defendants’ motion for summary judgment. The
opinion begins with a statement of the summary judgment standard. Applying that
standard, the Court then describes the evidence in the summary judgment record,
presenting that evidence in the light most favorable to Mr. Lowe. Finally, the Court
evaluates the evidence using the legal principles that govern Mr. Lowe’s
discrimination claims.
I.
A district court “shall grant summary judgment 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(a). To demonstrate a genuine dispute of
material fact that precludes summary judgment, the party opposing a motion for
summary judgment must “go beyond the pleadings” and cite “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for
purposes of the motion only), admissions, interrogatory answers, or other
materials.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); FED. R. CIV. P.
56(c)(1)(A). “The court need consider only the cited materials, but it may consider
other materials in the record.” FED. R. CIV. P. 56(c)(3).
“A litigant’s self-serving statements based on personal knowledge or
observation can defeat summary judgment.” United States v. Stein, 881 F.3d 853,
857 (11th Cir. 2018); see also Feliciano v. City of Miami Beach, 707 F.3d 1244,
1253 (11th Cir. 2013) (“To be sure, Feliciano’s sworn statements are self-serving,
but that alone does not permit us to disregard them at the summary judgment
stage.”). Even if a district court doubts the veracity of certain evidence, the court
cannot make credibility determinations; that is the work of jurors. Feliciano, 707
F.3d at 1252 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)); see
also Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1162 (11th Cir. 2012).
When considering a motion for summary judgment, a district court must view
the evidence in the record in the light most favorable to the non-moving party and
draw reasonable inferences in the non-moving party’s favor. White v. Beltram Edge
Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015) (citing Scott v. Harris, 550
U.S. 372, 378 (2007)). If the evidence in this case, viewed in the light most favorable
to Mr. Lowe, creates a disputed question of material fact, then a jury will have to
“resolve the parties’ differing versions of the truth.” Anderson, 477 U.S. at 249.
II.
Mr. Lowe served in the Marine Corps from 2005 to 2013. (Doc. 30-1, p. 10,
tpp. 32-33; Doc. 35-3, p. 2). Tragically, in 2008, 23 of Mr. Lowe’s close friends in
the military were critically injured. One friend died “right in front of [him].” (Doc.
30-1, p. 10, tp. 33). Mr. Lowe developed PTSD that went undiagnosed for several
years. (Doc. 30-1, pp. 10-11, tpp. 33-35).
When Mr. Lowe left the Marines in 2013, he became a deputy in the Jefferson
County Sheriff’s Office. (Doc. 30-1, p. 6, tpp. 15-16). The JCSO gave Mr. Lowe a
policy and procedure manual that included, among other things, policies on
punctuality and absences, information about an Employee Assistance Program
concerning substance abuse, and an Equal Employment Opportunity policy. (Doc.
30-1, p. 6, tp. 16; Doc. 30-3, pp. 3-5, ¶¶ 3, 5, 7, 8 and pp. 9-11, 27-30, 32).
Mr. Lowe was a productive deputy for the JCSO, receiving commendations
for his work, (Doc. 35-6, p. 257, tpp. 1014-17), but he struggled with attendance.
Twice during training, Mr. Lowe was absent from the academy without leave. The
second of these incidents occurred on July 28, 2014 and resulted in a one-day
suspension. (Doc. 30-3, pp. 36-38). After he graduated from the academy, Mr.
Lowe was assigned to the JCSO Corrections Division at the county jail. On
December 7, 2015, Mr. Lowe received a three-day suspension for excessive
tardiness between April 2015 and December 2015. (Doc. 30-3, pp. 39-44).
In 2016, Mr. Lowe moved from the Corrections Division to the Patrol
Division. (Doc. 30-1, p. 9, tp. 26). In 2017, Mr. Lowe failed to submit several
warrants within the required timeframe. (Doc. 30-3, pp. 52-53). In 2018, Mr. Lowe
began to struggle again with tardiness. By December 2018, Internal Affairs had
opened an investigation concerning Mr. Lowe. (Doc. 30-3, p. 47). On December
28, 2018, Mr. Lowe asked to transfer from the Patrol Division to the Corrections
Division. (Doc. 30-3, p. 48). The evidence shows that Mr. Lowe was having
nightmares that interfered with his sleep, and he was drinking too much off-duty, but
he had not sought treatment.
On January 4, 2019, Mr. Lowe did not report for work. Lieutenant Mayes
contacted Mr. Lowe, and Mr. Lowe indicated that he was on his way to the station.
When Mr. Lowe arrived, Lieutenant Mayes informed Mr. Lowe that his police
vehicle was being taken from him. Lieutenant Mayes had Sergeant Park drive Mr.
Lowe home. (Doc. 30-3, p. 45). The officer who inspected Mr. Lowe’s police
vehicle reported that Mr. Lowe had not maintained the unit properly. On January 9,
2019, Lieutenant Mayes recommended to Captain John Verbitski that Mr. Lowe be
suspended for five working days for his violation of the JCSO policy concerning
vehicle maintenance. (Doc. 30-3, pp. 45-46).
In a memo dated January 10, 2019, Lieutenant Russell Starnes indicated that
Mr. Lowe was late for work or absent without leave seven times between December
3, 2018 and January 4, 2019, that Mr. Lowe frequently called and reported that he
was sick though “he had no accumulated time left to use,” that Mr. Lowe did not
follow orders, and that Mr. Lowe failed to submit reports on time, creating “awkward
and embarrassing situations for Supervisors and Deputies who have had to make
excuse[s] for him when facing citizens who come to pick up their reports.” (Doc.
30-3, pp. 47-50). Lieutenant Starnes recommended that the JCSO terminate Mr.
Lowe’s employment. (Doc. 30-33, p. 49).
That same day, Mr. Lowe transferred from Patrol to Corrections. (Doc. 30-4,
p. 3, ¶ 6). Within his first month at the jail, Mr. Lowe received performance
counseling three times for late arrivals for work. (Doc. 30-3, p. 55; Doc. 30-4, pp.
11-16). Mr. Lowe reported to Sergeant Terry Scott and Sergeant McReelis that he
was having trouble sleeping because of nightmares. (Doc. 30-1, p. 11, tp. 37).
Sergeant Scott was Mr. Lowe’s immediate supervisor. (Doc. 30-1, p. 13, tp. 45).
Mr. Lowe visited the VA and was diagnosed with PTSD. (Doc. 30-1, p. 11, tpp. 35-
37). He began seeing a psychiatrist, and he was prescribed a daily medication. (Doc.
30-1, pp. 13-14, tpp. 45-46).1
On January 27, 2019, Sergeant Scott wrote a memo to Mr. Lowe’s
commanding officer, Lieutenant Guntharp, explaining:
I have talked with Dep. Lowe several times about his tardiness and
absences. Dep. Lowe has stated that he has trouble sleeping at night
because of nightmares related to his time in the military. Dep. Lowe
has requested in the past to be assigned to nightshift, Dep. Lowe
explained it is easier for him to sleep during the daytime hours.
I recommend reassigning Dep. Lowe to nightshift not only as a way to
ensure he is able to gain the sleep he needs but to also ensure the safety
of those assigned to work with him as he should be well rested and not
sleep deprived.
(Doc. 30-4, pp. 10, 19). Sergeant Scott helped Mr. Lowe write a memo to Lt.
1 According to Lt. Guntharp, at some point in January 2019, he reported to Captain Thompson that
Mr. Lowe was having trouble showing up for work. Captain Thompson called Mr. Lowe in to
meet with him and Lt. Guntharp. Lt. Guntharp stated that he thought Mr. Lowe was upset and
nervous, but he did not understand that Mr. Lowe had a problem. According to Lt. Guntharp, Mr.
Lowe denied that he had a problem, and he (Lt. Guntharp) was not familiar with the symptoms of
PTSD. (Doc. 35-6, pp. 93-94, tpp. 360-62).
Guntharp about the treatment Mr. Lowe was seeking for sleep issues stemming from
“incidents [he] experienced during [his] service in the military.” (Doc. 30-1, p. 12,
tpp. 40-41). On January 29, 2019, Mr. Lowe wrote:
I served as a Marine Corps Infrantryman from 2005-2013. Because of
events that transpired during this time-frame, I currently have difficulty
sleeping at night. After leaving the Marine Corps, I coped with this
issue by having my spouse wake me in the mornings. She is currently
unavailable, and the resulting consequences have created an unhealthy
environment for my family. My ability to arrive to work on time has
diminished due to these circumstances. I request that I be transferred
to a later shift for the time being until I can receive the proper medical
solution. In the past several months, I have scheduled appointments
with the V.A. Hospital, and have conveyed this information to a mental
health professional, and I’m actively pursuing the help that is available
to me in order to correct this problem.
(Doc. 35-3, p. 2).2
Effective February 2, 2019, Lt. Guntharp moved Mr. Lowe to the evening
shift from 2:00 p.m. to 10:00 p.m. (Doc. 35-2, p. 3; see also Doc. 35-1, p. 2). Lt.
Guntharp coupled his decision to move Mr. Lowe to the evening shift with a
recommendation to Captain David Thompson of a three-day suspension without pay
for Mr. Lowe based on Mr. Lowe’s performance counseling in January 2019. (Doc.
35-2, p. 3). In a memo to Captain Thompson dated February 1, 2019, Lt. Guntharp
wrote:
It is quite apparent that Deputy Lowe does not understand the
2 Mr. Lowe mistakenly dated the memo January 29, 2018; the correct date is January 29, 2019.
Mr. Lowe’s wife no longer was available to wake him in the mornings because she and Mr. Lowe
were having marital problems that led to a divorce in 2020. (Doc. 30-1, pp. 5, 10, tpp. 12, 32; see
also Doc. 35-6, p. 249, tp. 985).
importance of following rules and regulations and sterner measures
should be taken. I request that Deputy Lowe be sent for a drug
urinalysis test when he shows up for work. I would like to recommend
that Deputy Lowe be required to either contact Employee Assistance
for counseling or provide proof of counseling from the Veteran’s
Hospital. I further recommend that Deputy Lowe receive three (3) days
suspension without pay. Deputy Lowe is being transferred effective 02
February 2019, Saturday to evening shift in an attempt to aid his work
performance.
(Doc. 35-2, p. 3).3 Lt. Guntharp did not mention the information that he received
from Sgt. Scott and Mr. Lowe concerning Mr. Lowe’s sleep issues.
On February 4, 2019, Captain Thompson conveyed to Chief Deputy Hill Lt.
Guntharp’s recommendation for a three-day suspension and indicated that Mr.
Lowe’s conduct “may merit a more serious form of discipline.” (Doc. 30-3, p. 55).
Captain Thompson recommended that the JCSO refer Mr. Lowe’s personnel file to
Internal Affairs. (Doc. 30-3, p. 55). The day after Chief Deputy Hill received this
recommendation from Captain Thompson in Corrections, Captain Verbitski from
Patrol recommended to Chief Deputy Hill that JCSO terminate Mr. Lowe based on
Sgt. Starnes “detailed investigation into Deputy Lowes’ [sic] failures.” (Doc. 30-3,
p. 56). There is no evidence that Chief Deputy Hill acted on either recommendation.
Two weeks later, on February 18, 2019, Mr. Lowe called Lt. Guntharp at
home at 8:00 p.m. to report that he had a substance abuse issue that was affecting
3 Despite Lt. Guntharp’s recommendation to Captain Thompson that JCSO obtain proof of Mr.
Lowe’s counseling from the VA, Lt. Guntharp testified at an August 9, 2019 Personnel Board
hearing that Mr. Lowe never reported to him that he had a problem. (Doc. 35-6, p. 95, tp. 366).
his work and that he needed help. (Doc. 30-1, p. 15, tp. 51; see Doc. 35-6, p. 65,
tpp. 246-47).4 Lt. Guntharp recommended that Mr. Lowe contact Employee
Assistance. (Doc. 35-6, pp. 65, 96, 249, tpp. 246-47, 371-73, 984-85). Lt. Guntharp
testified that Mr. Lowe’s call was the first time that an officer had called him at home
to ask for help. Still, Lt. Guntharp simply assumed that Mr. Lowe contacted
Employee Assistance; he did nothing to follow up to see if Mr. Lowe was okay.
(Doc. 35-6, p. 96). Lt. Guntharp stated that he did not speak with Mr. Lowe after he
called the night of February 18 because he had “[o]ther duties” and was “[b]usy with
other things.” (Doc. 35-6, p. 96, tp. 373).
On February 19, 2019, Mr. Lowe called Employee Assistance or EAP and
reported that he had a substance abuse problem. (Doc. 30-1, p. 15, tp. 52). EAP
scheduled a meeting with Mr. Lowe on February 22. (Doc. 30-1, pp. 15-16, tpp. 53-
54).
Mr. Lowe was absent from work on February 20 and 21, 2019. On February
20, he informed the booking deputy at the jail that he was sick, (Doc. 35-6, p. 243,
4 Lt. Guntharp testified that he supervised Mr. Lowe for a little more than one month. (Doc. 35-6,
p. 80, tp. 306). During the August 9, 2019 Personnel Board hearing, initially, Lt. Guntharp stated
that the only time Mr. Lowe spoke to him about his substance abuse was sometime after April 1,
2019 when Mr. Lowe called to tell him that he had just left rehab. (Doc. 35-6, p. 81, tp. 310).
Eventually, on cross-examination, Lt. Guntharp testified that Mr. Lowe called him one evening to
ask for the number for Employee Assistance, but he did not have the number. (Doc. 35-6, p. 95,
tpp. 366-67). After reviewing a screenshot from his telephone which shows that Mr. Lowe called
at 8:01 p.m. on February 18, 2019 and spoke to him for nearly four minutes, (Doc. 35-6, pp. 6, 95,
tpp. 10, 367-69, 371), Lt. Guntharp acknowledged that Mr. Lowe “apparently” talked to him about
going to rehab on February 18, 2019, (Doc. 35-6, pp. 95-96, tpp. 369-70).
tpp. 958-59), but Mr. Lowe did not contact his supervisor and did not answer his
phone or return messages his supervisor left for him. On February 21, Mr. Lowe
called in sick, but he had exhausted his sick leave and vacation time. (Doc. 30-4,
pp. 21-22).
On February 21, 2019, Lt. Guntharp sent a memo to Captain Thompson in
which he explained that he had transferred Mr. Lowe to evening shift because Mr.
Lowe reported “difficulty sleeping due to his military experience many years ago”
which made it difficult for Mr. Lowe to “wak[e] up in the mornings to report to
work.” (Doc. 35-1, p. 2). Lt. Guntharp stated that, despite the transfer, Mr. Lowe
had not reported to work on February 20 or 21. (Doc. 35-1, p. 2). Lt. Guntharp
recommended a three-day suspension without pay and a “fitness for duty
examination (mental).” (Doc. 35-1, p. 3).
On Friday, February 22, 2019, Mr. Lowe reported to work two hours late
because he went to his EAP appointment. Mr. Lowe notified Sergeant Posey that he
was meeting with EAP. When Mr. Lowe arrived at work, he explained to Sergeant
Posey that he had another meeting with EAP on February 25, 2019. Sergeant Posey
authorized Mr. Lowe to attend the EAP meeting on February 25, 2019. (Doc. 30-4,
p. 4, ¶ 13; Doc. 35-6, pp. 65, 67, tpp. 248-49, 254-56).5
5 At his administrative hearing, Mr. Lowe stated, “I told my supervisor, hey, I’m at employee
assistance. That was Sergeant Posey at the time.” (Doc. 35-6, p. 65, tp. 248). Mr. Lowe later had
the following exchange with JCSO’s attorney:
On February 25, 2019, Captain Thompson concurred with Lt. Guntharp’s
recommendation for a three-day suspension without pay and a mental fitness for
duty examination for Mr. Lowe. (Doc. 35-1, p. 2). That same day, Mr. Lowe
attended his appointment with EAP. A doctor at EAP referred Mr. Lowe to Bradford
for substance abuse treatment, and Mr. Lowe reported directly to Bradford. (Doc.
35-6, pp. 64, 247-48, tpp. 244, 975-76, 979). During the trip from EAP to Bradford,
Mr. Lowe attempted to call the jail to report that he was entering treatment, but he
could not get through. (Doc. 30-1, p. 16, tpp. 54-55; Doc 35-6, pp. 64, 247-48, tpp.
244, 977-79).6 When he arrived at Bradford, he had to surrender his phone and
Q. And with regard to notifying your supervisors, you are responsible, right?
A. Right.
Q. And you didn’t notify them?
A. I notified them – I self-reported. About a month prior, I self-reported to my
lieutenant. My lieutenant directed me to employee assistance. Before I went to
employee assistance, I notified my immediate supervisor. When they reschedule[d]
me for the following Monday, I notified him that I would have an appointment
again on the Monday. All of these things are in accordance with the chain of
command.
Q. Just so – just so – just so that we’re clear, your notification was to Sergeant
Posey that you had an appointment with employee assistance, correct?
A. And Lieutenant Guntharp who referred me.
(Doc. 35-6, p. 70, tpp. 266-67; see also Doc. 35-6, p. 259, tp. 1022).
6 At his administrative hearing, Mr. Lowe testified:
Q. All right. Did you tell him [Sgt. Posey] anything else?
A. I went to – I went – to my appointment. I attempted. I attempted to. And from
employee assistance to Bradford it could not get through to anybody, but I did call.
Q. Did you tell Lieutenant Guntharp that you would not be in to work?
A. That’s – my previous answer covers that, too.
(Doc. 35-6, p. 68, tpp. 258-59; see also Doc. 35-6, p. 259, tp. 1022). At another point, JCSO’s
attorney asked Mr. Lowe “Did you notify Lieutenant Guntharp that you were going into Bradford
personal belongings, so Mr. Lowe asked his wife to inform the jail of his treatment.
(Doc. 35-6, p. 64, tp. 244). Mr. Lowe’s wife made several calls to the jail and left
several messages; she also called the county’s HR department. Mr. Lowe informed
Bradford that he needed to notify his department, and the individual to whom he
spoke indicated that Bradford would notify Mr. Lowe’s HR department. Mr. Lowe
witnessed a Bradford employee attempt to call JCSO’s HR department twice and
leave voicemails. (Doc. 30-1, p. 22, tpp. 79-80; Doc. 35-6, p. 260, tp. 1027).
Mr. Lowe received treatment at Bradford in a program tailored to law
enforcement and former military officers. (Doc. 30-1, p. 16, tpp. 54-56; Doc. 35-6,
pp. 64, 66, 68, 247-48, 250-51, 260, tpp. 243-44, 250, 258-59, 261-62, 976-79, 987-
90, 1027). Bradford discharged Mr. Lowe on March 8, 2019. (Doc. 35-6, pp. 247-
48, tpp. 981-83). Following his inpatient treatment, Mr. Lowe completed an
intensive outpatient treatment plan through Bradford. (Doc. 30-1, p. 16, tpp. 56-57;
Doc. 35-6, p. 249, tp. 982).
While Mr. Lowe was receiving inpatient treatment at Bradford, on March 4,
2019, Internal Affairs Deputy Herman Webb and Deputy Kyomi Wilson went to Mr.
Lowe’s residence “to conduct a welfare check and to serve [Mr. Lowe] with [a]
Disciplinary Action of Termination.” (Doc. 30-4, pp. 24). When no one answered
on the 25th?” Mr. Lowe answered “I notified lieutenant – well, no.” The attorney asked: “You
didn’t?”; Mr. Lowe answered, “Right.” (Doc. 35-6, p. 258, tp. 1021).
at Mr. Lowe’s house, the officers called Ms. Lowe. Ms. Lowe told Deputy Webb
that Mr. Lowe had “gone through [the] Employee Assistance Program and had been
referred to Bradford on February 25, 2019.” (Doc. 30-4, p. 24). The Notice of
Contemplated Disciplinary Action signed by Chief Deputy Hill states that Mr. Lowe
had been “written up” for policy violations five times since his transfer on January
10 to Corrections and had been AWOL since February 20. (Doc. 30-4, pp. 25-26).
Chief Deputy Hill recommended Mr. Lowe’s termination; Chief Deputy Hill copied
Sheriff Pettway on the notice. (Doc. 30-4, p. 26). The notice did not provide
information about steps Mr. Lowe could take to challenge the recommended
termination. (Doc. 35-6, p. 252, tpp. 994-95).7 The JCSO regarded Mr. Lowe as
terminated. (Doc. 35-6, p. 31, tp. 113).
When Mr. Lowe was released from Bradford, he met with an attorney, and
the attorney contacted the JCSO about the termination notice. On April 1, 2019, Mr.
Lowe and his attorney had a meeting scheduled in an administrative building with
two attorneys for the JCSO, Mr. Biggers and Mr. Hendrix. (Doc. 35-6, p. 31, tp.
110). Deputy Webb was present; so was Sheriff Pettway. Before Mr. Biggers
became aware that Mr. Lowe and his attorney were in the meeting room, Mr. Biggers
7 In December of 2018, while Mike Hale was the Sheriff of Jefferson County, Mr. Lowe received
a Notice of Contemplated Disciplinary action in which then-Chief Deputy Christian advised Mr.
Lowe that he had recommended that the JCSO suspend Mr. Lowe for five days without pay. The
notice states that Mr. Lowe had the right to appeal the recommendation within 10 days. (Doc. 30-
2, pp. 16-17).
asked Deputy Webb “what race Mr. Lowe was.” (Doc. 35-6, p. 31, tp. 111). Mr.
Lowe’s attorney announced his presence, and Mr. Biggers asked Mr. Lowe and his
attorney to leave the room; the meeting was cancelled. (Doc. 30-1, p. 21, tp. 77;
Doc. 35-7, p. 5, tpp. 14-15).
Mr. Biggers determined that Mr. Lowe had to have an opportunity for a
hearing, so on April 3, 2019, the JCSO placed Mr. Lowe on administrative leave,
without pay. At some point, his status changed to leave with pay. (Doc. 35-6, pp.
31-32, 252, tpp. 112-15, 995-96).
On April 10, 2019, JCSO sent Mr. Lowe a second Notice of Contemplated
Disciplinary Action. The second notice contained the same recommendation for
termination that appeared in the March 4, 2019 notice and included several new
paragraphs describing reprimands and a performance counseling that Mr. Lowe
received between 2016-2018. (Doc. 35-5, pp. 3-4). The second notice informed Mr.
Lowe that a hearing on his proposed termination would be held on April 12, 2019.
(Doc. 35-5, pp. 2, 5). Between April 3 and April 12, the JCSO did nothing to
investigate the circumstances surrounding Mr. Lowe’s treatment at Bradford. (Doc.
35-6, p. 32, tpp. 115-16).
The April 12 hearing resulted in Mr. Lowe’s termination. (Doc. 30-2, pp. 29-
30). The Personnel Board of Jefferson County conducted an evidentiary hearing to
review Mr. Lowe’s termination and concluded that there was sufficient evidence to
support JCSO’s decision to terminate Mr. Lowe. (Doc. 30-5, p. 3, ¶ 6; Doc. 35-6).
Mr. Lowe filed a charge of discrimination with the EEOC. In it, Mr. Lowe
asserted that the JCSO had discriminated against him based on his race and his
disability, and he asserted that the JCSO had retaliated against him. (Doc. 1-1, pp.
2-3). After he received a right to sue letter, (Doc. 1-2), he filed this lawsuit against
Sheriff Pettway and Chief Deputy Hill, (Doc. 1).
III.
As a preliminary matter, the Court notes that in his complaint, Mr. Lowe seeks
damages and equitable relief for discrimination and retaliation that he allegedly
suffered as an employee of the Jefferson County Sheriff’s Office. (Doc. 1, pp. 1,
20). Mr. Lowe asserts claims against Sheriff Pettway individually and in his official
capacity as Sheriff of Jefferson County. (Doc. 1, pp. 1, 2). In his EEOC charge, Mr.
Lowe named as his employer: “Jefferson County Sheriff’s Office (Mark Pettway,
Official Capacity). (Doc. 1-1, p. 2; see also Doc. 101, p. 6). In his complaint, Mr.
Lowe characterizes Sheriff Pettway as the person “through” whom the JCSO carried
out “unlawful employment practices and acts of intentional discrimination.” (Doc.
1, p. 2, ¶ 7). Mr. Lowe identifies Chief Deputy Hill as a defendant in his individual
capacity in the caption of his complaint but does not include Chief Deputy Hill in
the “PARTIES” section of his complaint. (Doc. 1, pp. 1, 2).
It does not appear that Mr. Lowe included Chief Deputy Hill as a defendant
in the four counts in his complaint. (Doc. 1, pp. 8-19). To the extent that Mr. Lowe
attempts to pursue an individual capacity claim against Chief Deputy Hill, the claim
fails as a matter of law because claims under Title VII and the ADA lie against an
employer, “not individual employees whose actions would constitute a violation of
the Act.” Hinson v. Clinch County, Georgia Bd. of Educ., 231 F.3d 821, 827 (11th
Cir. 2000) (quoting Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991));
Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996). Therefore, the Court will
enter judgment in favor of Chief Deputy Hill on Mr. Lowe’s claims against him.
Likewise, the Court will enter judgment in favor of Sheriff Pettway to the extent that
Mr. Lowe attempts to pursue claims against him in his individual capacity. Like the
defendants, the Court understands that Mr. Lowe seeks relief from Mr. Pettway in
his official capacity as the Sheriff of Jefferson County, Alabama.
Race Discrimination Claims
Under Title VII of the Civil Rights Act of 1964, an employer may not
“discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). A plaintiff typically relies
on direct or circumstantial evidence of discriminatory intent to establish a claim for
race discrimination under Title VII.
Direct evidence is ‘“evidence, which if believed, proves [the] existence of [a]
fact without inference or presumption.” Kilpatrick v. Tyson Foods, Inc., 268 Fed.
Appx. 860, 861-62 (11th Cir. 2008) (quoting Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1086 (11th Cir. 2004)). Practically speaking, in direct evidence cases, a
factfinder ordinarily will have “to make at least one inference” to conclude that
“direct evidence” establishes, more probably than not, that the defendant
impermissibly discriminated against the plaintiff. Wright v. Southland Corp., 187
F.3d 1287, 1295, 1300 (11th Cir. 1999). Otherwise, “the only direct evidence of
illegal discrimination,” if no inference were permitted, “would be testimony from
the decisionmaker that he took an adverse employment action against the plaintiff
on the basis of a protected personal characteristic.” Wright, 187 F.3d at 1295. Still,
direct evidence typically consists of “blatant remarks, whose intent could be nothing
other than to discriminate on the basis of a protected classification[.]” Kilpatrick,
268 Fed. Appx. at 862 (citing Wilson, 376 F.3d at 1086).
Mr. Lowe cites as direct evidence of race discrimination the exchange that
occurred between a JCSO attorney and Deputy Webb as several people, including
Mr. Lowe, his attorney, and Sheriff Pettway, were gathering on April 1, 2019 to
discuss the first termination notice that the JCSO sent Mr. Lowe. The attorney asked
Deputy Webb “what race Mr. Lowe was.” (Doc. 35-6, p. 31, tp. 111; Doc. 35-7, p.
5, tp. 14). When Mr. Lowe’s attorney announced his presence, the meeting with
Sheriff Pettway abruptly ended. (Doc. 30-1, p. 21, tp. 77; Doc. 35-6, pp. 30-31, tpp.
108-11; Doc. 35-7, p. 5, tpp. 14-15).
For this exchange to constitute direct evidence, it must “demonstrate[] the
state of mind of the employer (or, more concretely, the decisionmaker) at the time
of the employment decision.” Wright, 187 F.3d at 1294-95. Though the Sheriff’s
attorneys may have been involved in the decision to issue Mr. Lowe’s first notice of
termination on March 4, 2019, (Doc. 30-4, pp. 25-26), the attorney’s question several
weeks after the JCSO memorialized its termination decision in a notice to Mr. Lowe
is not direct evidence of the decisionmaker’s state of mind at the time of the
employment decision. Wright, 187 F.3d at 1295 n.9. In fact, the question suggests
that, to the extent the attorney was involved in the decision, he did not know Mr.
Lowe’s race at the initial time of the decision.
Ultimately, the JCSO did not terminate Mr. Lowe until 12 days after the
exchange between the Sheriff’s attorney and Deputy Webb. (Doc. 30-2, pp. 29-30).
Therefore, the April 1 inquiry into Mr. Lowe’s race may be circumstantial evidence
of discriminatory intent, but it is not direct evidence. Courts assess circumstantial
evidence of an employer’s discriminatory intent using a burden-shifting framework:
a plaintiff must present a prima facie case of discrimination; if the plaintiff does so,
the defendant must articulate a legitimate, non-discriminatory reason for its adverse
employment action; and, if the employer carries its burden, then the plaintiff must
demonstrate that the employer’s articulated reason is pretext for discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973).
Under the McDonnell Douglas framework, a plaintiff’s prima facie case
consists of evidence showing that he “belongs to a protected class,” “was subjected
to an adverse employment action,” “was qualified to perform the job in question,”
and was treated less favorably than similarly situated employees outside his class.
Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1220-21 (11th Cir. 2019) (en
banc). To demonstrate that an employee outside of the plaintiff’s protected class is
“similarly situated in all material respects,” a plaintiff may offer proof that his co-
employee:
• “engaged in the same basic conduct (or misconduct)” as him;
• was “subject to the same employment policy, guideline, or rule”
as him;
• was “under the jurisdiction of the same supervisor” as him; and
• had a similar “employment or disciplinary history.”
Lewis, 918 F.3d at 1227-28 (internal citations omitted).
In his summary judgment brief, Mr. Lowe identified as comparators two co-
employees who are Black, but neither is similarly situated to him in all material
respects, so if Sheriff Pettway treated either deputy more favorably than Mr. Lowe,
the comparison is not probative of discriminatory intent. One of the deputies
allegedly was “under investigation for illegally obtaining warrants against his
girlfriend’s ex-boyfriend,” and the other allegedly “ran from the Birmingham Police
after a street racing incident and subsequently issued citations by BPD.” (Doc. 35-
7, p. 7, tpp. 22-23). Because Mr. Lowe has not satisfied the fourth element of his
prima facie case, he cannot establish discriminatory intent using the McDonnell
Douglas framework.8
Of course, “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.,
8 In his deposition, Mr. Lowe identified several other Black co-employees he believes have been
involved in “similar incidents” who were not reprimanded, including an employee who “was
consistently 15 to 30 minutes late for his shift at the jail.” (Doc. 30-1, p. 18, tpp. 62-65). But Mr.
Lowe did not mention these employees in his summary judgment brief, so he appears to have
abandoned comparator arguments with respect to these employees. Johnson v. Board of Regents
of Uni. of Ga., 263 F.3d 1234, 1264 (11th Cir. 2001) (stating that a party “cannot readily complain
about the entry of a summary judgment order that did not consider an argument they chose not to
develop for the district court at the time of the summary judgment motions”). In his deposition,
Sheriff Pettway acknowledged that several of Mr. Lowe’s co-employees engaged in serious
misconduct but were not terminated. During a shift, one deputy got into a physical fight with
another deputy, but neither was fired. Another deputy was investigated by Internal Affairs for an
alcohol-related incident that involved a firearm. He was disciplined, but he was not terminated.
Another deputy was arrested for violent threats against his wife who also is a deputy. The JCSO
investigated the alleged offenses but did not terminate the deputy. Another deputy was suspended
for stealing televisions from the JCSO property room, but he was not terminated. (Doc. 35-7, pp.
6, 8-9, tpp. 20-21, 26-30). Sheriff Pettway was not familiar with other reported incidents that took
place before he became sheriff on January 14, 2019, including a deputy who was using heroin and
went to rehab. (Doc. 30-4, p. 3, ¶ 2; Doc. 35-7, pp. 6-9, tpp. 19-30). None of this evidence is
helpful to Mr. Lowe with respect to his Title VII claim because the record does not disclose the
race of the deputies, and most of the conduct described is not sufficiently similar to the conduct
which the JCSO identified as the basis for Mr. Lowe’s termination.
644 F.3d 1321, 1328 (11th Cir. 2011); Lewis, 918 F.3d at 1220 n.6. Therefore, a
plaintiff’s “failure to produce a comparator does not necessarily doom the plaintiff’s
case. Rather, the plaintiff will always survive summary judgment if he presents
circumstantial evidence that creates a triable issue concerning the employer’s
discriminatory intent.” Lockheed-Martin Corp., 644 F.3d at 1328. “[N]o matter its
form, so long as the circumstantial evidence raises a reasonable inference that the
employer discriminated against the plaintiff, summary judgment is improper.”
Lockheed-Martin Corp., 644 F.3d at 1328; see also Rioux v. City of Atlanta, 520
F.3d 1269, 1281 (11th Cir. 2011).
Setting aside comparators, Mr. Lowe argues accurately that Captain
Buchanon testified that Sherriff Pettway has not terminated a Black deputy for being
AWOL. (Doc. 35, p. 9) (citing Doc. 35-6, p. 50, tp. 189). When asked if JCSO
employees have been AWOL or late, Captain Buchanon responded: “I imagine they
are,” but he said “[i]t may be that” no Black employee had reached the point under
the JCSO’s progressive discipline policy that the employee had been terminated.
(Doc. 35-6, pp. 50-51, tpp. 189-91). The Court has not found evidence in the record
that builds on Captain Buchanon’s testimony and establishes that JCSO allowed
Black deputies to be late or AWOL without imposing discipline at all or that the
JCSO gave Black deputies more chances to improve or fewer write-ups than Mr.
Lowe. Captain Buchanon’s testimony, even when coupled with the JCSO’s
attorney’s question about Mr. Lowe’s race, is not adequate to support a reasonable
inference that race motivated the JCSO’s decision to terminate Mr. Lowe.
Therefore, the Court will enter judgment for Sheriff Pettway in his official capacity
on Mr. Lowe’s Title VII race discrimination claim.9
The Court cannot tell whether, in addition to his Title VII race discrimination
claim, Mr. Lowe intended to assert a race discrimination claim against Sheriff
Pettway under 42 U.S.C. § 1981. The language of Mr. Lowe’s complaint focuses
on Title VII, but Mr. Lowe included § 1981 in the heading of his race discrimination
count. (Doc. 1, p. 8). If Mr. Lowe did intend to assert a § 1981 race discrimination
claim against Sheriff Pettway, the claim fails for the reasons that his Title VII race
discrimination claim fails. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330
(11th Cir. 1998) (stating that Title VII and § 1981 “have the same requirements of
proof and use the same analytical framework”); see also Jackson v. United Parcel
Service, Inc., 593 Fed. Appx. 871, 876 (11th Cir. 2014) (“Jackson’s failure to survive
summary judgment under Title VII is also fatal to her § 1981 claim, and the district
court properly dismissed this claim.”). Therefore, the Court will enter judgment for
Sheriff Pettway in his official capacity on Mr. Lowe’s § 1981 race discrimination
claim.
9 Mr. Lowe did not assert a Title VII mixed motive claim, so the Court will not consider whether
race was a motivating factor in the JCSO’s decision to terminate Mr. Lowe.
ADA Discrimination Claim
Mr. Lowe contends that the JCSO refused to accommodate his “known
physical and[/]or mental limitations” and discriminated against him in the terms and
conditions of his employment in violation of the Americans with Disabilities Act.
(Doc. 1, p. 14, ¶¶ 94-99). Under the ADA, an employer may not discriminate against
“a qualified individual on the basis of disability in regard to . . . discharge of
employees . . . and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). “[T]he term ‘discriminate against a qualified individual on the
basis of disability’ includes . . . not making reasonable accommodations to the
known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless such covered entity can
demonstrate that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” 42 U.S.C. § 12112(b)(5)(A).
For ADA discrimination claims as for Title VII discrimination claims, a
plaintiff may rely on direct or circumstantial evidence. In the case of circumstantial
evidence, the McDonnell Douglas burden-shifting framework applies as does the
Lockheed-Martin Corp. test. Holly v. Clairson Industries, L.L.C., 492 F.3d 1247,
1255 (11th Cir. 2007); Lewis, 918 F.3d at 1220-21 n.6, n.7. To establish a prima
facie case of discrimination based on disability under the McDonnell Douglas
framework, a plaintiff must show that “(1) []he is disabled, (2) []he was a ‘qualified
individual’ when []he was terminated, and (3) []he was discriminated against on
account of [his] disability.” Holly, 492 F.3d at 1255-56. Sheriff Pettway contends
that Mr. Lowe cannot establish that he has an ADA disability, that he identified a
reasonable accommodation that JCSO refused to provide, or that JCSO’s stated
reason for his termination is pretext for discrimination.10
Disability
For purposes of an ADA discrimination claim, disability “is defined as a
physical or mental impairment that substantially limits one or more major life
activities of an individual; a record of such an impairment; or being regarded as
having such an impairment.” United States Equal Employment Opportunity
Comm’n v. St. Joseph’s Hospital, Inc., 842 F.3d 1333, 1343–44 (11th Cir. 2016)
(quoting 42 U.S.C. § 12101(1) (internal quotations omitted)). “To prove a ‘regarded
as’ disabled claim, [a plaintiff] must ‘establish[] that he has been subjected to an
action prohibited under [the ADA] because of an actual or perceived physical or
mental impairment . . . .’” Snider v. U.S. Steel-Fairfield Works Med. Dep’t, 25 F.
Supp. 3d 1361, 1366 (N.D. Ala. 2014), aff’d, 591 Fed. Appx. 908 (11th Cir. 2015)
(quoting 42 U.S.C. § 12102(3)(A)) (internal ellipsis omitted). In the ADA
Amendments Act of 2008, Congress expanded the “regarded as” prong of the
definition of disability so that a person now may be regarded as having an
10 JCSO does not contend that Mr. Lowe was not qualified to work as a deputy sheriff.
impairment “whether or not the impairment limits or is perceived to limit a major
life activity.” 42 U.S.C. § 12102(3). The Eleventh Circuit has held that under the
ADA Amendments Act of 2008, “an extensive analysis is not required to determine
whether an individual’s impairment is a disability under the ADA.” St. Joseph’s
Hospital, 842 F.3d at 1343 (citing Mazzeo v. Color Resolutions Intern., LLC, 746
F.3d 1264, 1268 (11th Cir. 2014)).
The United States Supreme Court has explained that a physical or mental
impairment may include emotional illness and alcoholism. Bragdon v. Abbott, 524
U.S. 624, 632-33 (1998). PTSD “is not included in the list of specific disorders”
that the Supreme Court examined in Bragdon, but the condition “does fall well
within the general definition set forth by” regulations interpreting the Rehabilitation
Act which the Supreme Court used in Bragdon to identify disabling impairments
under the ADA. Bragdon, 524 U.S. at 633. According to the American Psychiatric
Association, Posttraumatic Stress Disorder or PTSD is a:
psychiatric disorder that may occur in people who have experienced or
witnessed a traumatic event, series of events or set of circumstances. . .
. Examples include . . . war/combat . . . PTSD has been known by many
names in the past, such as “shell shock” during the years of World War
I and “combat fatigue” after World War II, but PTSD does not just
happen to combat veterans. . . . People with PTSD have intense,
disturbing thoughts and feelings related to their experience that last
long after the traumatic event has ended. They may relive the event
through flashbacks or nightmares . . .
What is Posttraumatic Stress Disorder (PTSD)?, AM. PSYCHIATRIC ASS’N,
https://www.psychiatry.org/patients-families/ptsd/what-is-ptsd (last visited Mar. 2,
2023).
Thus, PTSD is a mental health impairment. It is undisputed that PTSD limited
Mr. Lowe’s ability to sleep. In Rossbach v. City of Miami, the Eleventh Circuit
Court of Appeals recognized that sleep is a major life activity. 371 F.3d 1354, 1357
(11th Cir. 2004). The Court of Appeals explained:
The regulations interpreting the Rehabilitation Act of 1973 define
major life activities as “functions such as caring for oneself, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning
and working.” 45 C.F.R. § 84.3(j)(2)(ii). If not contained within these
exemplars, the activity must be “significant” to everyday
life. Bragdon, 524 U.S. at 638, 118 S.Ct. 2196. Several courts, for
example, have found that sleeping constitutes a major life activity.
Rossbach, 371 F.3d at 1357. The evidence, viewed in the light most favorable to
Mr. Lowe, indicates that PTSD substantially limited his ability to sleep at night, so
much so that he asked to transfer to a late shift because he slept better during the
day. (Doc. 30-4, pp. 10, 19).11 Thus, Mr. Lowe can establish that he has a mental
impairment that substantially limits one or more of his major life activities.
11 See 29 C.F.R. § 1630.2(j)(1)(i) (“The term ‘substantially limits’ shall be construed broadly in
favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
‘Substantially limits’ is not meant to be a demanding standard.”). Mr. Lowe did not have a formal
PTSD diagnosis when he requested transfer to a late shift, but a plaintiff “need not obtain a formal
diagnosis to receive coverage under the ADA. See 42 U.S.C. § 12101(1). Rather, the question is
whether at the time of the adverse employment action [the plaintiff] had a ‘physical or mental
impairment that substantially limit[ed] one or more major life activities.’ Id.” Polasek v. Office of
State’s Attorney of Cook County, 2022 WL 17718412, *5 (N. D. Ill. Dec. 14, 2022).
Additionally, reasonable jurors could conclude that the JCSO regarded Mr.
Lowe as disabled by a mental impairment. Approximately two weeks after the JCSO
granted Mr. Lowe’s request to move from Patrol to Corrections, Mr. Lowe’s
immediate supervisor, Sgt. Scott, wrote a memo to Lt. Guntharp in which he
recommended that Lt. Guntharp reassign Dep. Lowe to nightshift “not only as a way
to ensure he is able to gain the sleep he needs but to also ensure the safety of those
assigned to work with him as he should be well rested and not sleep deprived.” (Doc.
30-4, pp. 10, 19). Two days later, Mr. Lowe wrote a letter to Lt. Guntharp in which
he explained that, as a consequence of events that occurred while he served in the
Marines, he had “difficulty sleeping at night” and was seeking help from a mental
health professional through the V.A. Hospital. (Doc. 35-3, p. 2). A few days later,
after he transferred Mr. Lowe to the evening shift, Lt. Guntharp asked Captain
Thompson for permission to send Mr. Lowe “for a drug urinalysis test when he
shows up for work” and to require Mr. Lowe “to either contact Employee Assistance
for counseling or provide proof of counseling from the Veteran’s Hospital.” (Doc.
35-2, p. 3). Thus, Mr. Lowe has presented sufficient evidence to establish the first
prong of his prima facie case of ADA discrimination.
Reasonable Accommodation
For the reasonable accommodation prong of his discrimination claim, Mr.
Lowe must demonstrate that he identified an accommodation that was reasonable.
Frazier-White v. Gee, 818 F.3d 1249, 1255-56 (11th Cir. 2016). In some
circumstances, an employer may “need to ‘initiate an informal, interactive process’
with a disabled employee to determine the appropriate reasonable accommodation.
29 C.F.R. § 1630.2(o)(3).” Frazier-White, 818 F.3d at 1257.
The Eleventh Circuit recently provided criteria for district courts to use when
examining a request for accommodation. The Eleventh Circuit stated that an
employee must identify his disability and “provide at least some information about
how a physical or mental condition limits [his] functioning.” Owens v. Governor’s
Office of Student Achievement, 52 F.4th 1327, 1334-35 (11th Cir. 2022).12 In other
words, “an employee must identify—at least in broad strokes—the limitations [his]
mental or physical condition imposes.” Owens, 52 F.4th at 1335. The employee
also must provide information that allows his employer to assess how a “proposed
accommodation would help [him] overcome [his] disability’s limitations.” Owens,
52 F.4th at 1335.
“The type and extent of information that an employee must provide will
depend, of course, on the particulars of each case. The link between the disability
and the requested accommodation may often be obvious.” Owens, 52 F.4th at 1335-
36. “An employee’s informational burden” is “modest.” Owens, 52 F.4th at 1336.
12 Owens is a Rehabilitation Act case. The Eleventh Circuit has held that the legal standards for
employment discrimination cases under the Rehabilitation Act and the ADA are the same. Ellis
v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (“[C]ases involving the ADA are precedent for
those involving the Rehabilitation Act.”).
An employee does not have to provide his employer “with detailed or private
information about [his] disability to initiate the employer’s duty to engage in an
interactive assessment about the need for an accommodation.” Owens, 52 F.4th at
1336. “Rather, to trigger an employer’s accommodation duties, a disabled employee
need only identify a statutory disability and explain generally how a particular
accommodation would assist” him. Owens, 52 F.4th at 1336.
“[W]hen an employee triggers an employer’s accommodation duties, the
employer must expend time and expense to explore the universe of reasonable
accommodations, identify one that is mutually agreeable to the parties, and
implement it.” Owens, 52 F.4th at 1335.
Viewed in the light most favorable to Mr. Lowe, the evidence demonstrates
that he gave JCSO notice of two disabling conditions, PTSD and alcoholism. In
January 2019, Mr. Lowe told his immediate supervisor, Sgt. Scott, that he was
having trouble waking up in the mornings because nightmares concerning his service
in the Marines awoke him during the night. Mr. Lowe provided the same
information to Lt. Guntharp and indicated that he was seeking mental health
treatment to address the nightmares. Mr. Lowe did not label his disability “PTSD,”
but he was in the process of seeking treatment that ultimately provided the needed
label. JCSO apparently thought Mr. Lowe had a legitimate need for help because
Lt. Guntharp approved Mr. Lowe’s requested accommodation of a transfer to
evening shift. Lt. Guntharp’s February 1, 2019 memo to Cpt. Thompson illustrates
Lt. Guntharp’s understanding that there was a mental health component to the
nightmares that Mr. Lowe reported; Lt. Guntharp wrote: “I would like to
recommend that Deputy Lowe be required to either contact Employee Assistance for
counseling or provide proof of counseling from the Veteran’s Hospital.” (Doc. 35-
2, p. 3).
Two weeks after JCSO accommodated Mr. Lowe’s first disabling impairment,
Mr. Lowe called Lt. Guntharp at home at night, reported that he had a substance
abuse issue that was affecting his work, and asked for help. (Doc. 30-1, p. 15, tp.
51; see Doc. 35-6, p. 65, tpp. 246-47). Lt. Guntharp acknowledged under oath that
Mr. Lowe “apparently” talked to him about going into rehab during that call. (Doc.
35-6, pp. 95-96, tpp. 369-70). Lt. Guntharp instructed Mr. Lowe to contact
Employee Assistance, and Mr. Lowe did so immediately.13 Mr. Lowe reported his
13 Mr. Lowe called Lt. Guntharp at home at 8:01 p.m. and spoke to him for nearly four minutes.
(Doc. 35-6, pp. 6, 95, tpp. 10, 367-69, 371). According to Mr. Lowe, during the call, he told Lt.
Guntharp that he (Mr. Lowe) “had a substance abuse issue that was affecting [his] work ability,”
and he told Lt. Guntharp that he “needed help.” (Doc. 30-1, p. 15, tp. 51; see also Doc. 35-6, pp.
65, 249, tpp. 246-47, 985). When pressed, Lt. Guntharp acknowledged that he “apparently” spoke
to Mr. Lowe about his need for rehab during that call. (Doc. 35-6, pp. 95-96, tpp. 369-70). Lt.
Guntharp was confident that he and Mr. Lowe discussed Employee Assistance during the call.
(Doc. 35-6, p. 95, tpp. 366-67).
In their summary judgment submissions, the parties provided minimal information about the
employee assistance program to which the parties referred in depositions and hearings. (Doc. 30-
3, p. 30). According to documents available on the internet, the Jefferson County Commission
offers to all county employees an “Integrated Employee Assistance Program” for mental health
and substance abuse. The services are provided through Behavioral Health Systems, Inc.
Integrated Employee Assistance Program, Mental Health, And Substance Abuse Benefits, BHS,
substance abuse to the Employee Assistance doctor, and that doctor sent Mr. Lowe
directly to Bradford for residential treatment. Reasonable jurors could infer that the
EAP physician recognized that Mr. Lowe was in crisis and needed immediate
treatment. (Doc. 35-6, pp. 64, 247-48, tpp. 244, 975-76, 979).14 On the particulars
of this case, jurors could conclude that Mr. Lowe’s supervising officers understood
that he needed mental health and substance abuse treatment.15
https://www.jccal.org/Sites/Jefferson_County/Documents/Human%20Resources/BHS-JCC
MENTAL-HEALTH-Benefit-Summary.pdf (last visited Mar. 3, 2023). The “Wellness” page of
the Jefferson County Commission’s website provides: “BHS offers counseling for a wide range
of emotional issues, including, substance abuse and many other mental health-related issues. To
find out more about covered conditions and the different treatment options available, call 800-245-
1150. Services are covered if you are a member of the Jefferson County Commission Group
Health Plan, if not a member of the health plan; please take advantage of One Free initial
assessment available to ALL County employees through the Employee Assistance Program
(EAP).” Wellness, JEFFERSON CNTY. ALA.,
https://www.jccal.org/Default.asp?ID=1227&pg=Wellness (last visited Mar. 3, 2023).
The Court takes judicial notice of these reliable sources of information from the Jefferson County
website. See Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278-79 (11th Cir. 1999) (“Fed.R.Evid.
201(b) provides for taking judicial notice of facts that are not subject to reasonable dispute because
they are capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned. When SEC documents are relevant only to determine what statements
or disclosures are actually contained therein, there can be little question as to authenticity, nor can
the fact that such statements or disclosures were thus publicly filed be reasonably questioned.”);
Universal Express, Inc. v. U.S. S.E.C., 177 Fed. Appx. 52, 53-54 (11th Cir. 2006) (holding that a
“district court may take judicial notice of certain facts without converting a motion to dismiss into
a motion for summary judgment. Public records are among the permissible facts that a district
court may consider.”) (citations omitted).
Lt. Guntharp’s instruction to Mr. Lowe to call Employee Assistance is evidence that he understood
that Mr. Lowe had a substance abuse and/or mental health illness.
14 Mr. Lowe explained that he was having thoughts of suicide. (Doc. 35-6, p. 249, tp. 985).
15 It is widely-recognized that among military veterans, PTSD and substance abuse go hand-in-
hand. According to the Department of Veterans Affairs, “[s]ome people try to cope with PTSD
symptoms by using drugs or alcohol. PTSD and substance abuse, like drinking too much or using
drugs, are related. . . . More than 2 of 10 Veterans with PTSD also have [Substance Use Disorder
Before he entered Bradford, Mr. Lowe did not request a more specific
accommodation to address his substance abuse, but under Owens, he did not have to
offer more details to meet his modest burden. The link between substance abuse and
rehab is obvious. Moreover, Mr. Lowe did not have an opportunity to request a
particular accommodation for rehab before he entered treatment because his calls to
JCSO on his way to Bradford were not answered. He could not make calls while he
was in treatment at Bradford. (Doc. 30-1, p. 22, tpp. 79-80; Doc. 35-6, pp. 250, tp.
987). Before he was released from Bradford, JCSO terminated him even though Mr.
Lowe’s supervisors knew that he was hospitalized. When he was released from
Bradford, with the help of an attorney, Mr. Lowe scheduled a meeting with JCSO to
discuss the termination, but Sheriff Pettway canceled the meeting before Mr. Lowe
could provide additional information about his hospitalization or discuss
accommodations. (Doc. 30-1, p. 21, tp. 77; Doc. 35-6, p. 252, tp. 995).
On this record, a jury must determine whether JCSO was obligated to “explore
the universe of reasonable accommodations, identify one that [was] mutually
agreeable to the parties, and implement it.” Owens, 52 F.4th at 1336. Reasonable
jurors could conclude that JCSO breached its obligation. After referring Mr. Lowe
to IEP on February 18, 2019, Lt. Guntharp did not follow up with Mr. Lowe because
or SUD]. Almost 1 out of every 3 Veterans seeking treatment for SUD also has PTSD.” PTSD
and Substance Abuse in Veterans, U.S. DEP’T VETERANS AFFS.,
https://www.ptsd.va.gov/understand/related/substance_abuse_vet.asp (last visited Mar. 4, 2023).
he was “[b]usy with other things.” (Doc. 35-6, p. 96, tp. 373). But Lt. Guntharp
found time on February 21, 2019 to recommend to Captain Thompson that JCSO
give Mr. Lowe a three-day suspension without pay and require a “fitness for duty
examination (mental).” (Doc. 35-1, p. 3). In the written report to Captain
Thompson, Lt. Guntharp did not mention his conversation with Mr. Lowe three days
earlier in which Mr. Lowe reported his substance abuse problem and requested help
or his directive to Mr. Lowe to contact EAP. Again, as soon as he was able to meet
in person, Mr. Lowe and his attorney contacted JCSO and scheduled a meeting to
explain Mr. Lowe’s situation and address his termination while he was hospitalized,
but Sheriff Pettway cancelled the meeting.
Sheriff Pettway contends that he did not receive documentation substantiating
Mr. Lowe’s meeting with EAP or Mr. Lowe’s hospitalization at Bradford until the
April 12, 2019 Loudermill hearing regarding Mr. Lowe’s termination. (Doc. 30-2,
p. 24). If Sheriff Pettway had not cancelled the April 1, 2019 meeting with Mr.
Lowe and his attorney, he could have learned more about Mr. Lowe’s disabilities
and the accommodations he needed, and he would have received documentation
regarding Mr. Lowe’s February 25, 2019 EAP meeting with the JeffCo physician
and Mr. Lowe’s hospitalization sooner. Moreover, Sheriff Pettway could have
considered the documents that Mr. Lowe provided on April 12, 2019 and discussed
options for accommodation then, but he didn’t. On this record, jurors could conclude
that the Sheriff breached his obligation to engage in the interactive process with Mr.
Lowe.
Pretext
Mr. Lowe’s pretext evidence begins with Lt. Guntharp’s conduct. The record
demonstrates that three days after Mr. Lowe reported to Lt. Guntharp that he was
struggling with combat-related nightmares that made it difficult for him to sleep,
(Doc. 35-3, p. 2), Lt. Guntharp reported to Captain Thomas four dates on which Mr.
Lowe was late to work and the date of one absence, and recommended that Mr. Lowe
receive a three-day suspension without pay. (Doc. 35-2). Lt. Guntharp did not
include in his report information about Mr. Lowe’s nightmares or the fact that Mr.
Lowe was seeking mental health treatment to manage the nightmares.
Three days after Mr. Lowe reported his substance abuse to Lt. Guntharp and
asked for help getting treatment, Lt. Guntharp reached out to Captain Thompson
again and recommended that Mr. Lowe receive a three-day suspension without pay
and that Mr. Lowe be ordered to take a fitness for duty mental examination. (Doc.
35-1). Lt. Guntharp reminded Captain Thompson of Mr. Lowe’s prior late arrivals
and added a second absence to the report. This time, Lt. Guntharp notified Captain
Thomas that Mr. Lowe had disclosed his “difficulty sleeping due to his military
experience many years ago,” but Lt. Guntharp did not mention Mr. Lowe’s report of
substance abuse, and Lt. Guntharp did not report that he had directed Mr. Lowe to
contact Employee Assistance. Captain Thomas approved the suspension. (Doc. 35-
1, p. 2).
Sheriff Pettway testified that he spoke to Lt. Guntharp about Mr. Lowe before
Mr. Lowe’s termination; that Lt. Guntharp had a lot to say about Mr. Lowe, though
Sheriff Pettway could not recall details; and that Lt. Guntharp reported that “he had
tried to reach out to Jacob Lowe [to offer] help and Jacob Lowe denied that he
needed help.” (Doc. 35-7, pp. 10, 11, tpp. 36-38; see also Doc. 35-7, p. 14, tp. 40).
Sheriff Pettway stated that he did not know that Mr. Lowe reported to Lt. Guntharp
the nightmares he was experiencing about his time in combat or that Mr. Lowe
informed Lt. Guntharp that he was seeking treatment from the VA Hospital. (Doc.
35-7, pp. 10-11, tpp. 36-38). According to Sheriff Pettway, though he could not
recall everything that Lt. Guntharp told him about Mr. Lowe, Lt. Guntharp did not
disclose that Mr. Lowe had reported his substance abuse and asked for help, and Lt.
Guntharp did not disclose that he had referred Mr. Lowe to EAP. In March of 2022,
Sheriff Pettway testified: “If [Lt. Guntharp] referred [Mr. Lowe], [Mr. Lowe] didn’t
go to EAP.” (Doc. 35-7, pp. 2, 13, tpp. 1, 45). Sheriff Pettway added: “If [Mr.
Lowe] would have come and asked for help before he went AWOL, we would have
been glad to get him help and assistance of whatever problems that he had.” (Doc.
35-7, p. 15, tp. 53).
Viewing the circumstantial evidence in its entirety, reasonable jurors could
choose to disbelieve Sheriff Pettway’s statement that his office would have been
glad to help Mr. Lowe if he had asked for help. The evidence indicates that Mr.
Lowe asked for help, and, at Lt. Guntharp’s direction, Mr. Lowe went to EAP to get
help, a fact that Sheriff Pettway knew – or at least should have known -- long before
March of 2022.16 Because Sheriff Pettway’s statement that Mr. Lowe did not go to
EAP cannot be reconciled with the objective evidence that Mr. Lowe did, in fact, go
to EAP at Lt. Guntharp’s direction, Sheriff Pettway’s assertion to the contrary
undermines the credibility of his other statements regarding what he did and did not
know about Mr. Lowe’s PTSD and substance abuse before he decided to terminate
Mr. Lowe. Reasonable jurors could conclude that when Mr. Lowe disclosed to Lt.
Guntharp information about two disabilities that explained his struggles with late
arrivals and absences, Lt. Guntharp began a campaign for disciplinary action against
Mr. Lowe and recommended a fitness for duty assessment that might imperil Mr.
Lowe’s job as a deputy sheriff. Jurors could conclude that when Sheriff Pettway
16 Sheriff Pettway attended the final administrative hearing regarding Mr. Lowe’s termination.
(Doc. 35-6, p. 4, tp. 3). That hearing took place over several days between July 16, 2019 and
September 19, 2019. (Doc. 35-6, p. 3). There was extensive testimony during the hearing
regarding Mr. Lowe’s conversation with Lt. Guntharp regarding his substance abuse and his need
for rehab, Lt. Guntharp’s instruction to Mr. Lowe to contact EAP, and Mr. Lowe’s two trips to
EAP, all in February of 2019. Sheriff Pettway acknowledged that Mr. Lowe’s wife reported that
he was hospitalized at Bradford, but Sheriff Pettway did not contact Mr. Lowe’s wife to get
additional information about the hospitalization. Sheriff Pettway did not speak to Mr. Lowe after
he was released from Bradford because, Sheriff Pettway testified, Mr. Lowe “was not available”
at any time before Sheriff Pettway terminated his employment. Sheriff Pettway stated that Mr.
Lowe was not available for a conversation about his hospitalization on the day of the meeting that
Sheriff Pettway and his attorney cancelled. (Doc. 35-6, p. 194, tpp. 762-64).
learned of Mr. Lowe’s hospitalization at Bradford, Sheriff Pettway actively avoided
information that might cause him to have to explore accommodations for Mr. Lowe.
In deciding whether Mr. Lowe’s termination was motivated by discriminatory
intent, jurors may consider the fact that the termination notice that Chief Deputy Hill
signed on March 4, 2019, contained inaccurate information. Chief Deputy Hill
stated that Mr. Lowe had been “written up” for policy violations five times since his
transfer on January 10 to Corrections and had been AWOL since February 20. (Doc.
30-4, pp. 25-26). The assertion that Mr. Lowe had been AWOL since February 20
is inconsistent with Mr. Lowe’s testimony that he had permission from his
supervisor, Sgt. Posey, to attend an EAP appointment on February 22, 2019, and he
reported to work after the meeting. Sgt. Posey also gave Mr. Lowe permission to
attend a second EAP appointment on February 25, 2019. (Doc. 30-4, p. 4, ¶ 13; Doc.
35-6, pp. 65, 67, tpp. 248-49, 254-56). Mr. Lowe left that appointment, and, at the
direction of a JeffCo physician, reported directly to Bradford. Jurors also may
consider the fact that the March 4, 2019 termination notice violated JCSO policy
because the notice did not provide information about steps Mr. Lowe could take to
challenge the termination. (Doc. 35-6, p. 252, tpp. 994-95).17 A letter from the
17 In December of 2018, while Mike Hale was the Sheriff of Jefferson County, Mr. Lowe received
a Notice of Contemplated Disciplinary action in which then-Chief Deputy Christian advised Mr.
Lowe that he had recommended that the JCSO suspend Mr. Lowe for five days without pay. The
notice states that Mr. Lowe had the right to appeal the recommendation within 10 days. (Doc. 30-
2, pp. 16-17).
Jefferson County Pension Board stating that Mr. Lowe was terminated effective
March 4, 2019, could support a reasonable inference that JCSO did not intend to
allow Mr. Lowe to appeal his termination. (Doc. 35-6, pp. 31,143, 250-51, tp. 113,
560-61, 993-94). Sheriff Pettway’s refusal to meet with Mr. Lowe after Mr. Lowe
completed his hospitalization at Bradford would support this inference and
demonstrates Sheriff Pettway’s willful avoidance of information that might cause
him to have to discuss accommodations with Mr. Lowe.18
Because the evidence viewed in the light most favorable to Mr. Lowe
indicates that he had qualifying disabilities, that JCSO breached its obligation to
engage in the interactive process with him, and that the stated reason for Mr. Lowe’s
termination is pretext for discrimination based on Mr. Lowe’s PTSD and substance
abuse disorder, the Court will deny Sheriff Pettway’s motion for summary judgment
on Mr. Lowe’s ADA discrimination claim.
Retaliation
Mr. Lowe contends that he was fired in retaliation for engaging in activity
protected by the ADA. He argues that he “engaged in a protected activity by seeking
18 Stated differently, before Sheriff Pettway made the final decision to terminate Mr. Lowe, Sheriff
Pettway had the means and the opportunity to determine whether Mr. Lowe reported his health
concerns to his superior officers, went to EAP at the direction of his superior officers, and was
hospitalized for mental health and substance abuse treatment at the direction of an EAP physician.
Reasonable jurors could conclude that as the final decisionmaker, Sheriff Pettway turned a blind
eye to information that may have caused his office to have to accommodate Mr. Lowe’s substance
abuse and mental health treatment.
assistance with alcohol addiction through EAP and enrolling in treatment at
Bradford [Health Services] in February 2019.” (Doc. 35, p. 13).
To prevail on an ADA retaliation claim, a plaintiff “must show that: (1) []he
engaged in a statutorily protected expression, (2) []he suffered an adverse
employment action, and (3) there was a causal link between the two.” Frazier-
White, 818 F.3d at 1258. Requesting a reasonable accommodation for a disability is
a “statutorily protected expression.” Hughes v. Wal-Mart Stores East, LP, 846 Fed.
Appx. 854, 858 (11th Cir. 2021) (citing Frazier-White, 818 F.3d at 1258). The
causation element requires “that the desire to retaliate was the but-for cause of the
challenged employment action.” Hughes, 846 Fed. Appx. at 858 (quoting Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013)). The Supreme Court has
held that, “[o]ften, events have multiple but-for causes.” Bostock v. Clayton County,
Ga., 140 S. Ct. 1731, 1739 (2020). Thus, Mr. Lowe’s ability to present his ADA
discrimination claim to a jury does not preclude a trial of his ADA retaliation claim
if the parties’ evidence regarding that claim is in conflict.
Here, Mr. Lowe was fired shortly after he engaged in statutorily protected
expression. From the evidence discussed at length regarding Mr. Lowe’s ADA
discrimination claim, reasonable jurors could conclude that Mr. Lowe’s request for
accommodations for his PTSD and substance abuse caused Sheriff Pettway to fire
him. Therefore, the Court will deny Sheriff Pettway’s motion for summary
judgment on Mr. Lowe’s ADA retaliation claim.
42 U.S.C. § 1983 Due Process Claim
Mr. Lowe appears to have abandoned his § 1983 due process claim. In his
summary judgment brief, Sheriff Pettway asserted a variety of arguments against
Mr. Lowe’s § 1983 claim on the merits and on grounds of qualified immunity. (Doc.
32, pp. 23-26). Mr. Lowe did not address those arguments in his opposition brief.
The Fourteenth Amendment guarantees that no state shall “deprive any person
of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV.
An individual deprived of due process may bring a cause of action under 42 U.S.C.
§ 1983. “The fundamental requirement of due process is the opportunity to be heard
‘at a meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S.
319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The
record demonstrates that although JCSO’s March 4, 2019 termination notice was
deficient because it did not advise Mr. Lowe of his opportunity to challenge the
grounds for termination provided in the notice, JCSO issued a substitute notice in
April 2019 that included appeal information. JCSO held a determination hearing
before JCSO finalized Mr. Lowe’s termination.
Because Mr. Lowe has offered no evidence to create a factual dispute for a
jury to resolve with respect to his § 1983 due process claim, the Court will enter
judgment for Sheriff Pettway on that claim.
V.
For the reasons stated above, the Court enters judgment in favor of Chief
Deputy Hill on Mr. Lowe’s claims against him. The Court enters judgment for
Sheriff Pettway on Mr. Lowe’s Title VII and § 1983 due process claims. The Court
also enters summary judgment in favor of Sheriff Pettway on Mr. Lowe’s ADA
discrimination and retaliation individual capacity claims. The Court denies Sheriff
Pettway’s motion for summary judgment on Mr. Lowe’s official capacity ADA
discrimination and retaliation claims. By separate order, the Court will set those
claims for trial.
DONE and ORDERED this March 28, 2023.
aditx Bi Hosa
Malis
UNITED STATES DISTRICT JUDGE
4]