Blankenship v. Metro. Gov't of Nashville & Davidson Cnty.
| Decision Date | 19 July 2021 |
| Docket Number | NO. 3:19-cv-00146,3:19-cv-00146 |
| Parties | CORY BLANKENSHIP, Plaintiff, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendant. |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM OPINION
Pending before the Court are cross-motions for summary judgment: Doc. No. 21 ("Defendant's Motion") and Doc. No. 24 ("Plaintiff's Motion").1 The parties respectively have filed responses (Doc. Nos. 30 and 32) to the other party's motion, replies (Doc. Nos. 34 and 35) in support of the parties' own motion, and responses to the other party's Statement of Undisputed Facts (Doc. Nos. 31 and 33). In addition, Defendant filed a Sur-Reply with respect to Plaintiff's Motion (Doc. No. 38).
This action arises from Plaintiff's application to become a firefighter with Defendant Metropolitan Government of Nashville and Davidson County. Plaintiff applied for the position inAugust 2017 and received a conditional offer of employment in October 2017, contingent on a medical examination. On December 15, 2017, Defendant withdrew its offer and advised Plaintiff that he had been medically disqualified for the position by Defendant's Civil Service Medical Examiner, Dr. Gill Wright.
Plaintiff is a person with Type 1 diabetes mellitus, a physical impairment that substantially limits the operation of his endocrine system as compared to the average person in the population without Type 1 diabetes. Defendant's denial of Plaintiff's application was based upon Plaintiff's disqualification under the National Fire Protection Association ("NFPA") Standards for Fire/EMT Trainees, adopted by Defendant in 1991. (Doc. No. 21-1 at 7). Under the NFPA standards, Type 1 diabetes is considered a "Category A" medical condition that "would preclude a person from performing as a member in a training or emergency operational environment by presenting a significant risk to the safety and health of the person or others, unless the candidate meets 12 specific criteria." (Doc. No. 21-2 at 16 and 23). Plaintiff's disqualification was based on a single one of those 12 criteria, that being the quarterly A1C test standard found at NFPA § 6.20.1(1)(g)(ii) ("the NFPA Standard"), which requires the candidate to present medical evidence that allows the fire department physician to determine whether the candidate "has had hemoglobin A1C measured at least four times a year (intervals of 2 to 3 months) over the last 12 months prior to evaluation if the diagnosis of diabetes has been present over one year." (Doc. No. 21-2 at 23).
After his employment offer was withdrawn, Plaintiff requested a medical waiver from Defendant's Civil Service Commission, based on his treating endocrinologist's assessment that quarterly A1C tests are unnecessary because of Plaintiff's demonstrated high level of education, motivation, control of his diabetes, and stability of A1C, and because "the lack of 4 A1C tests in the 12 months before his medical evaluation is not in any way evidence that he was at an increasedrisk for hypoglycemia that would have created a risk to himself or others as a Fire Fighter." (Doc. No. 27-2 at 6). After a hearing,3 the Civil Service Commission denied Plaintiff's medical waiver request.4
Plaintiff filed this action based upon the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 121101, et seq., and asserts a claim specifically under 42 U.S.C. § 12112(b)(6) in particular. Plaintiff seeks damages and injunctive relief, including enjoining Defendant from enforcing the NFPA Standard relied upon in denying employment to Plaintiff. The parties have now filed the above-referenced cross-motions for summary judgment.
Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In other words, even if genuine, a factual dispute that is irrelevant or unnecessary under applicable law is of no value in defeating a motion for summary judgment. See id. at 248.On the other hand, "summary judgment will not lie if the dispute about a material fact is 'genuine[.]'" Id.
A fact is "material" within the meaning of Rule 56(c) "if its proof or disproof might affect the outcome of the suit under the governing substantive law." Anderson, 477 U.S. at 248. A genuine dispute of material fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Harris v. Klare, 902 F.3d 630, 634-35 (6th Cir. 2018).
The party bringing the summary judgment motion has the initial burden of identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Pittman v. Experian Information Solutions, Inc., 901 F.3d 619, 627-28 (6th Cir. 2018). If the summary judgment movant meets that burden, then in response the non-moving party must set forth specific facts showing that there is a genuine issue for trial. Id. at 628.
A party asserting that a fact cannot be or genuinely is disputed—i.e., a party seeking summary judgment and a party opposing summary judgment, respectively—must support the assertion by citing to materials in the record, including, but not limited to, depositions, documents, affidavits or declarations. Fed. R. Civ. P. 56(c)(1)(A). In reviewing a motion for summary judgment, this court must view the evidence in the light most favorable to the non-moving party. Tlapanco v. Elges, 969 F.3d 638, 647 (6th Cir. 2020) (quoting Anderson, 477 U.S. at 248). Likewise, the court should view the facts and draw all reasonable inferences in favor of the non-moving party. Pittman, 901 F.3d at 628. Credibility judgments and weighing of evidence are improper. Hostettler v. College of Wooster, 895 F.3d 844, 852 (6th Cir. 2018). As noted above, where there is a genuine dispute as to any material fact, summary judgment is not appropriate. Id. The court determines whether sufficient evidence has been presented to make the issue of fact a proper jury question. Id. The mere existence of a scintilla of evidence in support of the non-movingparty's position will be insufficient to survive summary judgment; rather, there must be evidence upon which the jury could reasonably find for the non-moving party. Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir. 2003).
"The standard of review for cross-motions for summary judgment does not differ from the standard applied when a motion is filed by only one party to the litigation." New Century Found. v. Robertson, 400 F. Supp. 3d 684, 689 (M.D. Tenn. 2019) (citing Ferro Corp. v. Cookson Group, PLC, 585 F.3d 946, 949 (6th Cir. 2009). Id. (quoting Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991)).
There is an initial dispute in this case involving Defendant's expert witness, Dr. Wright. Plaintiff asserts that Defendant cannot rely on Dr. Wright's opinions to rebut Plaintiff's expert witnesses because Defendant did not properly disclose Dr. Wright as an expert witness. Plaintiff argues that Defendant did not provide an expert disclosure for Dr. Wright until January 23, 2020, almost two months after the deadline for expert disclosures and one month after the deadline for deposing experts.
Defendant, on the other hand, argues that Dr. Wright, who is Defendant's Civil Service Medical Examiner, was disclosed in this case several times and in several ways: (1) in Defendant's initial disclosures as someone with discoverable information about Defendant's defenses; (2) in Defendant's discovery responses, where Dr. Wright's potential testimony was also summarized; (3) as evidenced by the fact that Plaintiff's counsel took Dr. Wright's deposition and asked abouthis medical opinions; (4) in Defendant's expert disclosure on January 23, 2020; (5) in the fact that, since before the lawsuit was filed, all parties had knowledge that Dr. Wright is the person who recommended a medical disqualification for Plaintiff; indeed, the Complaint itself refers to Dr. Wright as Defendant's medical director, and Plaintiff's allegations center on Dr. Wright's medical opinions; and (6) Plaintiff's experts, Dr. Anderson and Dr. Fowler, reviewed Dr. Wright's testimony and specifically responded to it (Doc. Nos. 27-1 and 27-2).
A party must disclose to the other parties the identity of any witness it may use at trial to present expert testimony. Fed. R. Civ. P. 26(a)(2). If a party fails to provide information as required by Fed. R. Civ. P. 26(a), the party is not allowed to use that information to supply evidence on a motion, at a hearing, or at trial "unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). A party who does not comply with the discovery rules may avoid sanctions if "there is a reasonable explanation of why Rule 26 was not complied with or [if] the mistake was harmless." Jaiyeola v. Toyota Motor N. Am., Inc., No. 19-1918, 2021 WL 518155, at *4 (6th Cir. Feb. 1, 2021) (citing Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015)). The burden to show substantial justification or harmlessness is on the noncompliant party. Starlink Logistics, Inc. v. ACC, LCC, No. 1:18-cv-0029, 2020 WL 619848, at *3 (M.D. Tenn. Feb. 10, 2020). In assessing whether a party's untimely disclosure was justified or harmless, the court analyzes five factors: (1) the...
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