Ward v. United Parcel Serv.

987 F.Supp.2d 1240

James L. WARD, Plaintiff,

v.UNITED PARCEL SERVICE, Russell Hamrac, and Ron Headley, Defendants.

Case No. 1:12–CV–1749–VEH.

United States District Court,

N.D. Alabama,

Eastern Division.

Dec. 16, 2013.

Courtney L. Calhoun, Roderick T. Cooks, Winston Cooks LLC, Birmingham, AL, for Plaintiff.

Donald R. James, Jr., Baxley Dillard McKnight & James, Birmingham, AL, Alexandra Garrison Barnett, Alicia P. Starkman, Lisa H. Cassilly, Alston & Bird LLP, Atlanta, GA, for Defendants.

MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

I. INTRODUCTIONA. Procedural History

Plaintiff James L. Ward (“Mr. Ward”) initiated this job discrimination lawsuit against Defendants United Parcel Service (“UPS”), Russell Hamrac (“Mr. Hamrac”), and Ron Headley (“Mr. Headley”), arising under the Americans with Disabilities Act (the “ADA”), as amended in 2008 by the ADA Amendments Act (the “ADAA”),¹ the Uniformed Services Employment and Reemployment Rights Act of 1994 (the “USERRA”), and state law on May 1, 2012. (Doc. 1 at 1 ¶ 1). Mr. Ward amended his complaint on September 2, 2012. (Doc. 17).

Pending before the court is Defendants' Motion for Summary Judgment (Doc. 30) (the “Motion”) filed on August 1, 2013. The parties have supported and opposed the Motion (Docs. 31, 32, 35, 37), and it is now ready for disposition. For the reasons explained below, the Motion is due to be granted in part and otherwise termed as moot.

B. Summary of Mr. Ward's Claims

Mr. Ward's amended complaint lists five separate causes of action. (Doc. 17 at 6–10 ¶¶ 24–46). The first count asserts violations of USERRA against UPS, Mr. Hamrac, and Mr. Headley. ( Id. ¶¶ 24–26). The second cause of action alleges reasonable accommodation and adverse action claims against UPS under the ADAA. Mr. Ward's third count is brought against UPS, Mr. Hamrac, and Mr. Headley for the intentional infliction of emotional distress. The fourth claim is for negligent and/or malicious retention, supervision, and training and is asserted against UPS. Mr. Ward's final count asserts invasion of privacy against all three defendants.

The court's summary of the claims contained in Mr. Ward's amended complaint is consistent with the parties' briefing on summary judgment. Further, to the extent that some other arguable claim exists in his amended pleading, by virtue of his opposition brief's silence, Mr. Ward has abandoned it on summary judgment. See, e.g., Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001) (finding claim abandoned when argument not presented in initial response to motion for summary judgment); Bute v. Schuller Int'l, Inc., 998 F.Supp. 1473, 1477 (N.D.Ga.1998) (finding unaddressed claim abandoned); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995) (“We decline to exercise our discretion to entertain this argument which was not fairly presented to the district court.”); Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir.2000) (failure to brief and argue issue at the district court is sufficient to find the issue has been abandoned); Hudson v. Norfolk S. Ry. Co., 209 F.Supp.2d 1301, 1324 (N.D.Ga.2001) (“When a party fails to respond to an argument or otherwise address a claim, the Court deems such argument or claim abandoned.”); cf. Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994) (concluding that a district court “could properly treat as abandoned a claim alleged in the complaint but not even raised as a ground for summary judgment”); McMaster v. United States, 177 F.3d 936, 940–41 (11th Cir.1999) (claim may be considered abandoned when district court is presented with no argument concerning a claim included in the plaintiff's complaint).

Conversely, to the extent that Mr. Ward's brief contains arguments about a claim that has not been pled in his amended pleading, it is similarly subject to summary judgment. The Eleventh Circuit has made it unmistakably clear that “[a] plaintiff may not amend her complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir.2004) (citing Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996)). Gilmour dealt with a plaintiff who was attempting to assert a new claim at the summary judgment stage. Gilmour, 382 F.3d at 1314–15.

Additionally, a more recent decision by the Eleventh Circuit cites to Gilmour and confirms that a district court's consideration of any critical amendment asserted merely as part of the briefing process is disfavored. ²

The current practice in some district courts—especially in the summary judgment setting—is to ignore what the respective parties alleged in their complaint and answer and to consider their claims and defenses as depicted in the memoranda they filed in support of or in opposition to a motion for summary judgment. As is the situation here, the claims and defenses presented in the memoranda supporting or opposing summary judgment are not presented in the complaint and answer with the specificity required by the Federal Rules of Civil Procedure and the Supreme Court's decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); rather, they are presented in a shorthand fashion. The result is that on appeal we have difficulty in determining whether the district court, in granting summary judgment, ruled on the claims and defenses as stated in the complaint and answer or as stated in the memoranda submitted to the court on summary judgment, as if the pleadings had been amended by implied consent.

We encountered this dilemma most recently in GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244 (11th Cir.2012), cert. denied,––– U.S. ––––, 133 S.Ct. 856, 184 L.Ed.2d 656 (2013). There, in their motion for summary judgment, the plaintiffs sought to eliminate a critical deficiency in the allegations of their amended complaint by including additional facts. The defendants did not object to this tactic on the ground that the plaintiffs were, in effect, seeking to amend their complaint. And the district court, in ruling on the sufficiency of the complaint, appeared to have considered the additional facts as if they had been alleged in the complaint. In affirming the district court's dismissal of the claim at issue, we refused to consider these additional facts, citing precedent that precludes a plaintiff from amending its complaint “ through argument at the summary judgment phase of proceedings.” Id. at 1258 n. 27. “At the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a).” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004).

This court's precedent foreclosed Well–Come's attempt to amend its complaint at the summary judgment stage without seeking leave of court pursuant to Rule 15(a)(2). Accordingly, the District Court should have disposed of Well–Come's claim with a statement that Well–Come failed to establish that ASRRG and ASIS issued a commercial general liability policy and excess/umbrella liability policy to Flintlock LLC, as alleged in paragraphs 6 and 7 of its complaint. We affirm the court's judgment on that ground. Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir.2010) (“This court may affirm a decision of the district court on any ground supported by the record.”).

Flintlock Const. Services, LLC v. Well–Come Holdings, LLC, 710 F.3d 1221, 1227–28 (11th Cir.2013) (emphasis added).

II. FACTUAL BACKGROUND³

Mr. Ward began his employment with UPS, a company engaged in the package delivery business, on September 20, 1988. AF No. 1.⁴ Throughout his employment, Mr. Ward has worked exclusively at UPS's Anniston, Alabama Center in hourly positions that are covered by a collective bargaining agreement between UPS and the International Brotherhood of Teamsters (the “CBA”). AF No. 2.

Mr. Ward is a member of the Teamsters Union. AF No. 3.1. The terms and conditions of Mr. Ward's employment at UPS are governed by the CBA. AF No. 3.2. Mr. Ward first held the part-time position of Preloader and worked in that capacity until he was promoted to the full-time position of Package Car Driver in 1995. AF No. 4.

Mr. Ward joined the Army Reserve in 1981 and, in July 2003, while he held the position of Package Car Driver, he was called to active duty. AF No. 5. Mr. Ward was deployed to Iraq and remained on active status until the summer of 2005. AF No. 6.

In late July, 2005, Mr. Ward returned to UPS and requested to be reemployed. AF No. 7. Mr. Ward informed UPS that, while he was on active military service, he suffered an injury to his leg and, as a consequence, was subject to medical restrictions that impacted upon his ability to work. AF No. 8. Mr. Ward further advised UPS that he could not return to his former position as a Package Car Driver. AF No. 9.

The essential job functions of Mr. Ward's former position as a Package Car Driver required the ability to lift up to 70 pounds and to move packages weighing up to 150 pounds. AF No. 10. UPS sought to clarify the scope of Mr. Ward's medical restrictions and, in connection therewith, Mr. Ward arranged for his physician at the Veterans Administration, Mike Moates, M.D. (“Dr. Moates”), to complete certain forms provided by UPS. AF No. 11.

Dr. Moates completed the forms provided by UPS and indicated that Mr. Ward could not perform all of the physical and mental functions of his position held immediately prior to his military deployment. AF No. 12. More precisely, Dr. Moates stated that Mr. Ward could not lift packages up to 70 pounds or move packages up to 150 pounds. AF No. 13.

The essential job functions of the majority of the hourly union jobs at the Anniston Center require that an employee be able to...