Burress v. City of Franklin

25 A.D. Cases 631

43 NDLR P 239

809 F.Supp.2d 795

Harold Dwayne BURRESS, Plaintiff,

v.CITY OF FRANKLIN, TENNESSEE, Defendant.

Civil Action No. 3:09–cv–0938.

United States District Court,M.D. Tennessee,Nashville Division.

Aug. 17, 2011.

Kendra E. Samson, Neal & Harwell, Nashville, TN, for Plaintiff.

Brandt M. McMillan, Kristin Ellis Berexa, Farrar & Bates, Nashville, TN, for Defendant.

MEMORANDUM OPINION

THOMAS A. WISEMAN, JR., Senior District Judge.

In this action, Plaintiff Harold Dwayne Burress asserts claims under the Family Medical Leave Act (“FLMA”), 29 U.S.C. § 2601, et seq., the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq. ( “ADA” ), Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e, et seq., and under 42 U.S.C. § 1983 (“§ 1983”) for violation of his equal-protection and due-process rights; the plaintiff also asserts state-law claims under the Tennessee Disability Act (“TDA”), Tenn.Code Ann. § 8–50–103, the Tennessee Human Rights Act (“THRA”), Tenn.Code Ann. § 4–21–101, et seq. , and Tennessee common law. (ECF No. 25.) These claims all arise from the defendant's decision to terminate Burress's employment as a Franklin police officer on October 6, 2008. Now before the Court is a Motion for Summary Judgment (ECF No. 33) filed by the defendant, City of Franklin (“City”), asserting that it is entitled to judgment as a matter of law in its favor regarding Burress's claims against it. This motion has been fully briefed and is ripe for consideration.

As explained below, the City's motion for summary judgment will be granted in part and denied in part. The Court will grant summary judgment in the City's favor on Burress's discrimination claims under the FMLA, Title VII, THRA, and § 1983, and on his due-process and workers-compensation-retaliation claims. The Court, however, finds that material issues of disputed fact preclude summary judgment on the ADA discrimination and retaliation claims, the TDA discrimination claim, and the plaintiff's post-termination retaliation claims. Summary judgment as to those claims will therefore be denied.

I. INTRODUCTION

In June 2009, Burress, formerly a police officer employed by the City of Franklin, filed a Charge of Discrimination against the City with the Equal Employment Opportunity Commission (“EEOC”) alleging Title VII and ADA violations. Before the conclusion of this EEOC investigation, Burress filed his initial Complaint on October 6, 2009 to ensure that his claims would not be barred by the statute of limitations. Shortly thereafter, in November 2009, Burress filed an additional Charge of Discrimination with the EEOC alleging retaliation under the ADA and Title VII. While the EEOC continued its investigation, Burress filed his First Amended Complaint on March 16, 2010, and when the EEOC issued Right to Sue letters for both charges, Burress filed a timely Second Amended Complaint on September 2, 2010. (ECF Nos. 16, 25.)

In his Second Amended Complaint, Burress asserts claims against the City for:

1. Violations of the notice and benefits provisions of the FMLA;

2. Termination and failure to accommodate in violation of the ADA;

3. Termination and failure to accommodate in violation of the TDA;

4. Retaliatory Discharge under the ADA and TDA;

5. Retaliatory Discharge for the alleged filing of a workers' compensation claim;

6. Gender discrimination under Title VII, § 1983 and THRA;

7. Violations of procedural due process under § 1983; and

8. Post–Termination Retaliation under Title VII, ADA, FMLA, TDA, and THRA, based on the City's withdrawal of a conditional offer of reinstatement.

Following the filing of the Second Amended Complaint, the City filed a motion for summary judgment in its favor as to all claims.

II. FACTUAL BACKGROUNDA. Events Leading up to Plaintiff's Termination

The facts set forth herein are generally undisputed or viewed in the light most favorable to the plaintiff as non-movant, unless otherwise noted.

Before coming to work for the City, Burress served in the U.S. Army and, in 1985, while still in the Army, was involved in a motorcycle crash resulting in a crushed sternum and broken ribs, and placed him in a coma for forty-five days. In addition, Burress suffered substantial damage to the right lobe of his liver. Following this injury, Plaintiff never returned to active duty and was honorably discharged in 1987.

In August 1993, Burress began working for the City's police department as a dispatcher or “communications officer”; in his application, Burress identified himself as a “disabled veteran.” (Burress Dep. 67; Harmon Aff. Exh. A) Plaintiff held this position for around eighteen months before going to the police academy and passing the requisite physical and psychological examinations under Tenn.Code Ann. § 38–6–106 to become a patrol officer. (Burress Dep. 67, 71.) Burress began working as a patrol officer for the City's police department in 1995. The doctor who administered Burress's physical exam noted that he would need to adopt additional protection to cover the surgical scar over his sternum, which Burress did by wearing a metal plate on top of his Kevlar bulletproof vest. The metal shield fit into a pocket over his sternum.

In August 2002, Burress experienced stroke-like symptoms and went to the Williamson Medical Center ER, where he was seen by a hematologist, Dr. Reid, who informed Burress that he had Hepatitis C, apparently from a blood transfusion, accompanied by hypersplenism and hepatic encephalopathy. Dr. Reid began treating Burress and also referred him to Dr. David Raiford, a transplant surgeon at Vanderbilt, who began treating Burress for his liver problems in October 2002. Dr. Raiford told Burress that he would eventually need a liver transplant, and in 2003 Burress was placed on the liver-transplant waiting list.

In February 2007, Burress began to experience symptoms related to his hepatic encephalopathy ¹ that caused behavioral changes. In particular, Burress had an incident at the Human Resources (“HR”) Department in which he became upset and angry with HR Director Shirley Harmon because Burress felt that he had been passed over for promotion despite having tested for the promotion and having been placed on the promotional list. Although Burress does not believe that he was disrespectful, he does admit that he upset Harmon and that his own behavior surprised him. Chief of Police Jackie Moore witnessed part of this incident and told Burress to return to the police department; Chief Moore noted that the plaintiff's actions were aggressive, erratic, and out-of-character. Although the lack of promotion that angered Burress in that instance is not at issue in this case, the defendant asserts that the episode is relevant. (Def.'s Brief at 3.)

Following this incident, Deputy Chief Sanders and Sergeant Ray Dilworth met with Burress on March 7, 2007 and gave him an employee counseling/warning record. (Harmon Aff., Collective Exh. B.) Deputy Chief Sanders told Burress that he was recommending a four-day suspension based on the February HR episode. Further, Burress learned that the Accident Review Committee recommended a one-day suspension because of Burress's involvement in a motor vehicle accident in December 2006. During this conversation, Burress became irritated and frustrated with Deputy Chief Sanders, and after leaving Sanders's office, Burress began crying. Sgt. Dilworth offered to take Burress home, and after the two of them left the police station, Burress removed his gun from its holster, unloaded it, and handed it to a surprised Sgt. Dilworth, telling him “it would be a good idea for you to hold my weapon” and that he was “not having good thoughts.” (Burress Dep. 129–32; Harmon Aff. Exh. C, transcript of Disciplinary Hearing, 11.) Burress states that he was not thinking clearly at the time; Burress, however, also contests Sgt. Dilworth's version of the events; in particular, he contends that Sgt. Dilworth overreacted and that Sgt. Dilworth has a tendency to overreact. (Burress Dep. 130–33; Harmon Aff. Exh. C, transcript of Disciplinary Hearing, 10–11.) Burress attributes this entire episode to his hepatic encephalopathy. (Burress Dep. 139, 152.)

After this March 7, 2007 incident, Chief Moore placed Burress on administrative leave and barred him from returning to work until he underwent physical and psychological fit-for-duty exams. (Burress Dep. 135–36; Moore Dep. 20–22.) Burress passed both of these exams, but the psychological examiner, Dr. Les Hutchinson, stipulated that Burress ought to closely monitor his liver condition with his two physicians, Drs. Reid and Raiford, and that he should begin regular counseling sessions for depression, anger, negative feelings, and post-traumatic stress disorder. (Hutchinson Dep. 45 & Exh. 2.) Dr. Hutchinson noted that Burress was taking Effexor, an antidepressant, and the plaintiff admits to taking Effexor but stated that he was unsure of what condition it treated. (Burress Dep. 141; Hutchinson Dep. 45.)

Police officers are required by law to receive new ballistic vests every five years, and in the summer of 2007, Burress was provided with a new vest. (Burress Dep. 162–63.) This new vest irritated the surgical scar from his 1985 motorcycle accident. Also during the summer of 2007, Burress was called for a liver transplant, but because of the open wound on his chest caused by the ballistic vest rubbing against his surgical scar, his doctors told him they were unable to perform the surgery at that time. Burress's doctors ordered him not to wear the vest for a period of time; as a result, Burress was required to go on light duty. ( Id. at 162–65.)

Around this time, Burress also went to Barry Baird, the City's risk manager, to report the injury caused by the new bulletproof vest rubbing on the old surgical scar. Baird was unsure if worker's compensation would “deal with” this type of injury but told Burress he...