Bosarge v. Mobile Area Water & Sewer Serv., CIVIL ACTION NO. 1:18-cv-240-TFM-N
| Decision Date | 29 May 2020 |
| Docket Number | CIVIL ACTION NO. 1:18-cv-240-TFM-N |
| Parties | KYLE BOSARGE, Plaintiff, v. MOBILE AREA WATER & SEWER SERVICE, et al., Defendants. |
| Court | U.S. District Court — Southern District of Alabama |
Pending before the Court is Defendants' Motion for Summary Judgment and Supporting Brief. Doc. 89, filed July 15, 2020.1 Also, pending before the Court are two (2) motions to strike that are related to the instant motion for summary judgment: Defendants' Motion to Strike Affidavit of Kyle Bosarge (Doc. 106, filed September 10, 2019) and Plaintiff's Motion to Strike Deposition Testimony of Dr. Terry Millette (Doc. 108, filed September 13, 2019). Having considered the motions and relevant law, the Court finds the motion for summary judgment (Doc. 89) is due to be GRANTED, Defendants' motion to strike (Doc. 106) is due to be SUSTAINED in part and OVERRULED in part, and Plaintiff's motion to strike (Doc. 108) is due to be OVERRULED.
For the purposes of this memorandum opinion and order, the Court will refer to Plaintiff Kyle Bosarge as "Plaintiff;" Defendant Board of Water and Sewer Commissioners of the City of Mobile as "the Board;"2 Defendant Sharon King as "King;" Defendant Fatima Washington as "Washington;" and Defendants the Board, King, and Washington collectively as "Defendants."
The district court has subject matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1331 (federal question); 28 U.S.C. § 1343(a)(4); and 42 U.S.C. § 1983.
The parties do not contest personal jurisdiction or venue, and there are adequate allegations to support both.
Plaintiff exhausted his administrative remedies when he timely filed his charges of discrimination and retaliation with the Equal Employment Opportunity Commission ("EEOC"), which issued Plaintiff a Notice of Right to Sue. Doc. 1 at 3.
Plaintiff originally filed his Complaint with this Court on May 24, 2018, in which he brought claims of interference in violation of the Americans with Disabilities Act of 1990 (the "ADA"), 42 U.S.C. §§ 12101-213, and § 504 of the Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. §§ 701-796l (Count 1); retaliation in violation of the ADA and § 504 of the Rehabilitation Act (Count 2); a retaliatory hostile work environment in violation of the ADA and § 504 of the Rehabilitation Act (Count 3); failure to promote in violation of the ADA and § 504 of the Rehabilitation Act (Count 4); constructive demotion and/or forced reassignment in violationof the ADA and § 504 of the Rehabilitation Act (Count 5); unauthorized medical inquiry in violation of the ADA (Count 6); violation of 42 U.S.C. § 1983 and the First Amendment (Count 7); failure to supervise and train in violation of 42 U.S.C. § 1983 and the Fourteenth Amendment (Count 8); negligent supervision and training (Count 9); and invasion of privacy (Count 10). Doc. 1. Plaintiff brings his claims against the Board; King, individually and in her official capacity as the Human Resources Director for the Mobile Area Water and Sewer Services ("MAWSS"); and Washington, individually and in her official capacity as Human Resources Officer for MAWSS. Id.
The Board filed its Answer and King and Washington filed their Motion to Dismiss on June 20, 2018. Docs. 10, 11. King and Washington argued in their Motion to Dismiss Plaintiff failed to plead facts that, if true, would either form the basis of a violation of Plaintiff's First and Fourteenth Amendment rights or a violation of state law, and King and Washington were entitled to qualified immunity. Doc. 11 at 1. On July 23, 2018, Plaintiff filed his Motion for Leave of Court to Amend Complaint, which the Court granted and ordered Plaintiff to file his amended complaint by September 24, 2018. Docs. 17, 32. Plaintiff filed his First Amended Complaint and Jury Demand on September 20, 2018, in which he brings the same claims against the same defendants as he did in his original Complaint, except he identifies Washington as the Assistant Human Resources Director for MAWSS. Compare Doc. 1 with Doc. 33. The original Motion to Dismiss was, therefore, rendered moot by the First Amended Complaint.
King and Washington filed their Motion to Dismiss First Amended Complaint on October 4, 2018, in which they again argued Plaintiff failed to plead facts, which if true, would either form the basis of a violation of Plaintiff's First and Fourteenth Amendment rights or a violation of state law, and King and Washington were entitled to qualified immunity. Doc. 35. On the same day,the Board filed its Answer to Plaintiff's First Amended Complaint. Doc. 36. Plaintiff filed his response to the Motion to Dismiss First Amended Complaint on October 17, 2018, and King and Washington filed their reply on October 25, 2018. Docs. 38, 41.
On July 15, 2019, Defendants filed their Motion for Summary Judgment and Supporting Brief, to which Plaintiff timely filed his response and Defendants their reply. Docs. 89, 97, 107; see also Docs. 93, 94, 95, 100, 101. On August 16, 2019, the Court converted King's and Washington's Motion to Dismiss First Amended Complaint to a motion for summary judgment and the Court stated it would jointly consider the two (2) motions under a summary judgment standard pursuant to Fed. R. Civ. P. 56. Doc. 99.
On September 10, 2019 Defendants filed their Motion to Strike Affidavit of Kyle Bosarge, to which Plaintiff filed his response, and on September 13, 2019, Plaintiff filed his Motion to Strike Deposition Testimony of Dr. Terry Millette, to which Defendants filed their response. Docs. 106, 108, 109, 111.
At all relevant times to this matter, King and Washington were MAWSS Human Resources ("HR") Officers whose duties were to write and interpret policies; handle disciplinary actions, complaints, benefits, and training; supervise the training manager; and ensure staff is informed of MAWSS's EEOC and ADA policies and procedures. Docs. 97-56 at 5, 97-58 at 6-9.
Charles Sumrall was a Garage Supervisor and Plaintiff's direct supervisor. Doc. 33 ¶ 17; Doc. 97-57 at 3. Adam Lynn was a Vehicular Equipment Mechanic Supervisor and also served as Plaintiff's direct supervisor for six (6) months. Doc. 97-59 at 3.
Plaintiff was hired by the Board as an Auto Service Worker I in June 2013 and was promoted to Auto Service Worker II in July 2014. Doc 97-7 at 2-3. Plaintiff received satisfactoryjob performance ratings for his annual service ratings in June 2014, August 2015, and August 2016 and received an unsatisfactory job performance rating for his annual service rating in October 2017. Doc. 97-9 at 2-5.
In September 2015, Plaintiff submitted to MAWSS a Family and Medical Leave Act ("FMLA") leave request form for his employer to make the proper accommodations for his disability, Multiple Sclerosis ("MS"). Docs. 97-20 at 2, 97-30 at 2-3. In October 2015, Dr. Terry Millette, Plaintiff's treating physician, submitted to MAWSS a "Certification of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act)" ("the FMLA medical form"). Doc. 97-21. The FMLA medical form had deficiencies, so Plaintiff submitted updated forms in July 2016 and on August 12, 2016. Docs. 97-22 at 2-10, 97-27 at 2-5, 97-30 at 2-3. In Plaintiff's FMLA medical form that was completed on June 17, 2016, Dr. Millette noted Plaintiff's MS commenced in 2009; it is a permanent condition; Plaintiff was prescribed medication to treat his MS; Plaintiff was unable to perform some of his job functions due to his heat intolerance; Plaintiff could experience loss of vision, fatigue, and extremity weakness with spasticity; Plaintiff would be incapacitated for a single continuous period of time due to his MS for an unknown period of time; Plaintiff's MS would cause episodic flare-ups that would periodically prevent him from performing his job functions; it would be medically necessary for Plaintiff to be absent from work for an unknown amount of time during his MS flare-ups; Plaintiff's flare-ups were estimated, over a six (6) month period, to occur every three (3) to six (6) weeks and would last between three (3) to five (5) days per episode. Doc. 97-27 at 2-5.
However, in a letter from Dr. Millette that is dated October 20, 2016, he stated in regard to Plaintiff: Doc. 97-28.
To accommodate Plaintiff's assessed heat intolerance, MAWSS allowed Plaintiff to use a fan when he worked in the garage and allowed him to take breaks as needed. Docs. 97-30 at 2-3, 97-53 at 2. In June 2016, Plaintiff did not require FMLA medical leave, and in May 2016, he required eight (8) hours of medical leave. Docs. 97-24 at 5, 97-53 at 2. On August 9, 2016, Plaintiff's supervisor notified Plaintiff he was no longer permitted to drive or operate any of MAWSS's vehicles or drivable equipment. Docs. 97-30 at 2-3, 97-57 at 71. In a letter that is dated August 19, 2016, MAWSS notified Plaintiff it would continue the additional accommodation that required him not to drive to "protect [his] safety and decrease MAWSS's liability of an accident occurring." Doc. 97-30 at 2. As a result of Plaintiff's driving and operating restrictions, he was prohibited from being on the standby list. Docs. 97-45, 97-58 at 63-64. MAWSS did not clarify with Dr. Millette whether Plaintiff could operate a vehicle. Doc. 97-56 at 114.
On May 20, 2016, a Vehicular/Equipment Mechanic (Medium/Heavy Truck) position with MAWSS ("the mechanic position") was opened to applicants by the Mobile County Personnel Board ("the Personnel Board"). Doc. 97-10 at 2-11. The mechanic...
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