Opinion

Lowe v. Pettway

Court
District Court, N.D. Alabama
Filed
Mar 28, 2023
Cited by
0 cases
Authority
More cited than 16.6%

“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]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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