Forsyth v. Univ. of Ala.

MARTIN FORSYTH, Plaintiff-Appellant, v. UNIVERSITY OF ALABAMA, BOARD OF TRUSTEES, Defendant-Appellee.

No. 20-12513

United States Court of Appeals, Eleventh Circuit

September 8, 2021

DO NOT PUBLISH

Appeal from the United States District Court No. 7:17-cv-00854-RDP for the Northern District of Alabama

Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.

PER CURIAM.

Martin Forsyth appeals the district court's grant of summary judgment to the University of Alabama on his employment discrimination claims brought under the Rehabilitation Act. Forsyth alleged that the University fired him because of his mental impairment and asserted Rehabilitation Act claims under both a disparate treatment and a disparate impact theory. The district court held that Forsyth failed to meet his burden for either claim. We agree.

I. BACKGROUND

This case involves an employment dispute between an employee and a supervisor who did not get along. When Martin Forsyth first began working for the University of Alabama as a carpenter he received positive performance reviews, including comments such as "works well with his co-workers _ [and] has leadership qualities but[] is able to follow the lead man on their crew very well." Soon after, he was even promoted to a supervisory role. His direct supervisor thought Forsyth was "a natural leader and the one that people look to," and noted that Forsyth "ha[d] been in [the new] position for about six months and ha[d] proven that we made the best choice. His planning, leadership[, ] and delegation ha[ve] been good."

But after several years, Neal DiChiara was hired as the new manager for building maintenance-a position above Forsyth's direct supervisor in the organizational hierarchy-and Forsyth began to have difficulty with DiChiara. The first episode occurred when Forsyth noticed asbestos during a job on campus and left-without telling his supervisors-to notify the University's Environmental Health and Safety Department. He then received a "corrective counseling," at least in part because DiChiara felt like Forsyth was undermining his authority by going straight to EHS. Forsyth, his direct supervisor, and DiChiara met with human resources to discuss the dispute. At that meeting, Forsyth told DiChiara that "he didn't respect him, and he would never respect him."

In Forsyth's next evaluation, he received his first negative comment: "[Forsyth] can improve his attitude [and] outlook towards his job and others. Much of the past year was spent in conflict w[ith] management." About a month after receiving that evaluation, there was another incident. Management failed to inform the employees (including Forsyth) of a mandatory ethics training until four hours before it began. After getting permission from his direct supervisor to miss the meeting, Forsyth also asked for DiChiara's permission. That led to a contentious exchange that ended with raised voices and foul language. Human resources "determined that Mr. Forsyth was the instigator of the incident, and although Mr. DiChiara had cursed during the confrontation, he did not curse at Mr. Forsyth." DiChiara told human resources that "he wanted to fire [Forsyth] for arguing with him in front of a bunch of people." As a result of that incident, Forsyth received a second corrective counseling for being "argumentative disrespectful, and insubordinate" and was suspended for three-and-a-half days without pay.

That year Forsyth received a "needs improvement" for "cooperation" in his annual performance evaluation. The evaluation comments suggested that Forsyth "find ways to be more approachable." A little over a year later, there were allegations that Forsyth made an unkind comment about a co-worker. Because the situation was a he-said-she-said, no one was punished, but the incident was documented in Forsyth's personnel file. And just over a week later, DiChiara issued Forsyth a Performance Improvement Plan. According to DiChiara, he issued this PIP because in the previous three years, "[t]here [were] seven documented occasions .. [where Forsyth's] attitude and/or working relationship with management and coworkers need[ed] improvement." "The goal of the PIP was to increase [Forsyth's] productivity as a lead carpenter and increase his rapport with [his] co-workers." Forsyth's direct supervisor stated: "Certainly I just wanted to see improvement." Shortly afterwards Forsyth filed an internal complaint alleging harassment.

Before completing the PIP, Forsyth received another corrective counseling for commenting to a co-worker that "[y]ou haven't learned yet that the University is going to do what benefits the University." Forsyth asserted that the corrective counseling was "yet another attempt at retaliation made by .. DiChiara against me." The associate vice president for facilities and grounds (DiChiara's boss) met with Forsyth to discuss the incident. Because Forsyth "seemed ... angry and frustrated," the associate vice president suggested that he talk with the University's Employee Assistance Program "about counseling, anger management, depression, or a whole array of things that could help him be more successful." Eventually, Forsyth completed the PIP successfully, receiving a letter from DiChiara stating that "improvement had been made as a result of the plan."

A month after that review, Forsyth volunteered for an unpopular route and shift. The agreement was that he would work that route and shift until a new position opened, and a new person was hired. DiChiara acknowledged Forsyth's "improved disposition around the shop" and "complimented [Forsyth] on his attitude and told him how much [he] appreciated the way [Forsyth] was handling himself around the shop." After Forsyth worked on the unpopular route for almost two years, the University hired a new carpenter. Because of the new hire, Forsyth approached his direct supervisor about switching off the unpopular route and shift, but his direct supervisor refused to let him. A few weeks later, Forsyth was issued a final corrective counseling due to six minor infractions (one of which was asking his supervisor about switching routes and four of which occurred that same week). This counseling was essentially a final warning, and if Forsyth did not show improvement, "[d]ismissal [would] [b]e [r]ecommended." Forsyth said that the instances were misconstrued and taken out of context. He also asserted that "this personal battle" with DiChiara had been going on for five years.

Forsyth then sought counseling through the University's Employee Assistance Program because he was feeling "a lot of anxiety[] and ... depression." Forsyth testified that his depression did not affect the physical aspect of his job, but it did affect his interactions with others. Forsyth also testified that he told his direct supervisor and a few co-workers that he had started going to counseling at the EAP. Forsyth did not inform anyone else about his counseling or depression, and no one ever commented on it.

The following summer, Forsyth was helping with the "summer walkthrough," which is when the maintenance and custodial staff make the dorms ready for the fall. During that summer, an employee in the housing department discovered that a storage room in one of the dorms had been converted into a makeshift "breakroom" with a refrigerator, microwave, chairs, a table, groceries, newspapers, and shelves. When DiChiara reviewed surveillance footage from outside the room, it revealed that Forsyth and two coworkers had regularly used the room that summer. In fact, Forsyth was observed "not working for 85 minutes during the seven day period" that the surveillance video covered. Taking an unauthorized break is a violation of department policy and does not meet the University's Standards of Behavior.

When confronted about the makeshift breakroom, Forsyth lied, saying that he did not have a key. Forsyth and the two other employees seen entering and exiting the room denied taking unauthorized breaks. Forsyth claimed that the alleged unauthorized breaks were times when he was either making work-related phone calls, waiting on plumbers, electricians, or other workers to complete their tasks before he could complete his work orders, or "formulat[ing] some kind of plan."

All three of the employees seen using the makeshift breakroom, including Forsyth, were fired. Eventually, Alabama's Department of Labor Board of Appeals accepted Forsyth's explanation, concluding that Forsyth was eligible for unemployment benefits because he had not taken unauthorized breaks. Instead, "the 'unauthorized breaks' w[ere] simply a result of their skill waiting on another skill to begin." Additionally, after Forsyth was fired, he was formally diagnosed with depression and prescribed medication.

Forsyth sued the University, bringing two claims under Section 504 of the Rehabilitation Act: one based on disparate treatment, alleging that the University fired him because of his disability, and the other based on disparate impact, alleging that the University's "evaluation and disciplinary system" screened him out because of his disability.

After discovery, the University moved for summary judgment, arguing that Forsyth had not presented evidence sufficient to support either claim. As to the disparate treatment claim, the University argued that Forsyth had not established that he had a disability and, even if he had, he had also not shown that the University had fired him "solely by reason of" that disability. As to the disparate impact claim the University argued that such claims were not cognizable under Section 504 and that, even if they were, Forsyth had not presented any statistical evidence showing that it had any policy or practice that had a disproportionate negative...