Equal Emp't Opportunity Comm'n v. Austal USA, LLC, CIVIL ACTION NO. 18-0416-CG-N

• Decision Date: 20 March 2020
• Docket Number: CIVIL ACTION NO. 18-0416-CG-N
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. AUSTAL USA, LLC, Defendant.
• Court: U.S. District Court — Southern District of Alabama

447 F.Supp.3d 1252

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.AUSTAL USA, LLC, Defendant.

CIVIL ACTION NO. 18-0416-CG-N

United States District Court, S.D. Alabama, Southern Division.

Signed March 20, 2020

Gina Elaine Pearson, Birmingham District Office, Kurt S. Fischer, Russell Paul Parker, Marsha Lynn Rucker, Gerald Lee Miller, Equal Employment Opportunity Commission, Birmingham, AL, Suntrease Williams-Maynard, U.S. Equal Employment Opportunity Commission, Mobile, AL, for Plaintiff.

Kristin Taylor Parsons, Austal USA, LLC, Kathryn M. Willis, Burr & Forman LLP, Mobile, AL, for Defendant.

MEMORANDUM OPINION AND ORDER

Callie V. S. Granade, SENIOR UNITED STATES DISTRICT JUDGE This matter is before the Court on Defendant's motion for summary judgment and memorandum in support (Docs. 77, 78), Plaintiff's opposition thereto (Doc. 86), Defendant's motion to strike (Doc. 87), Defendants' reply in support of summary judgment (Doc. 88), and Plaintiff's opposition to the motion to strike (Doc. 91). For reasons which will be explained below, the Court finds that Defendant's motion to strike should be denied, but that Defendant's motion for summary judgment should be granted.

FACTS

This case is brought by the EEOC alleging that Defendant, Austal USA, LLC, ("Austal") has an attendance policy which does not consistently provide for reasonable accommodation of qualified individuals with disabilities and which instead provides for termination of their employment in violation of sections 102(a) and 102(b) of Title I of the ADA, 42 USC §§ 12112(a) and (b)(5)(A). (Doc. 1 PageID.3). The EEOC's allegations are based on claims of the "charging party," Jimmy Cooper, who began working for Austal in 2007. The complaint alleges that Austal discriminated against Cooper by failing to provide him leave as a reasonable accommodation and instead terminating his employment for disability-related absences.

At the relevant times of this action Cooper worked as a Logistics Associate II. Cooper's duties were "[t]o receive, inspect, inventory, handle, move, issue, kit and deliver materials in a safe, accurate and efficient manner." (Doc. 79-1 PageID.936). The position required Cooper to be present at the facility to do the work – it could not be done from home. (Doc. 79-1 PageID.852). Cooper worked the 6:00 a.m. to 2:30 p.m. shift and reported to supervisors Carlos Walker and Mike Leachman, who in turn, reported to Foreman Calvin Lett. (Doc. 79-1 PageID.853-854).

Cooper was diagnosed with diabetes

in 2008. (Doc. 79-1 PageID.856). Cooper was treated by Drs. Rex Rawls, Amy Strassburg and Edward Carlos (Doc. 79-1 PageID.858). Cooper's diabetes was uncontrolled, based on his A1C. (Doc. 79-15 PageID. 1808-1809). According to Dr. Strassburg, Cooper could perform his job duties "on a good day," but could not perform his job duties when his sugar was off, and it would be difficult to predict when he would have a good day. (Doc. 79-15 PageID. 1812). Cooper had very labile sugars – they were very inconsistent and difficult to control, and no matter what insulin he was prescribed he would have super highs and super lows-partly due to his variant of diabetes and partly due to noncompliance. (Doc. 79-15, PageID. 1815-1817). Dr. Carlos testified that Cooper's diabetic condition would require him to be absent from work intermittently. (Doc. 79-16 PageID. 1865). Cooper would be expected to need to maintain a flexible schedule – unpredictably needing to come in late and leave early at unpredictable times. (Doc. 79-16 PageID. 1866). How long an episode would last or when it would occur could not be anticipated. (Doc. 79-16 PageID. 1865). Dr. Strassburg testified that during the 2014/2015 time period, Cooper was having low or high blood sugar more than just once or twice a week ...

And he and I were both getting frustrated and trying to come up with all kinds of ways to literally save his life. He was a danger at that point. His sugar was going up and down and his inability to control them and lack of understanding and lack of medication. He was becoming a danger to himself and others just by operating a vehicle.

(Doc. 79-15 PageID. 1823-1824). Cooper could not predict what days or what time of day his blood sugar would fluctuate. (Doc. 79-1 PageID.874).

Austal's attendance policy provided that eight "occurrences" during a rolling twelve-month period will normally result in termination. An unexcused full day absence counted as one occurrence, an unexcused tardy or early out of two hours or less results in 1/2 occurrence and more than two hours results in one occurrence. Under Austal's policy, after four occurrences a verbal written warning is issued, at six a written warning is issued, at seven a final warning is issued and at eight termination will normally result. An approved leave of absence, vacation, personal time, or any other approved time does not count as an occurrence. During one rolling calendar year, an employee may utilize up to five doctors' notes to excuse their absences on account of personal illness so that they do not count as occurrences. (Doc. 79-1 PageID. 934-935; Doc. 79-5 PageID. 1189-1192).

Cooper's supervisor, Leachman, testified that when a Logistics I or II employee like Cooper called "out", he would have to shuffle some employees around and try his best "to look at where are we at in the build and which crib could be shut down" "because if he only had five employees and six cribs, one of them is going to have to be shut down."(Doc. 79-7 PageID. 1409). According to Leachman, "we have to be able to react to keep production going" "because we cannot slip on our schedule; it's our promise, you know or their promise to the Government is to stay on track." "We had to keep our crew moving forward," so when "we had to – we had to shut down one for the day." (Doc. 79-7 PageID. 1410-11). When Cooper was out, it had an impact on the team and sometimes Leachman had to "man it" himself.(Doc. 79-7 PageID. 1423). Leachman reported that other employees would complain about Cooper being absent. (Doc. 79-7 PageID. 1424). Leachman testified that Austal could not run smoothly when Cooper was out "whether it's a short period of time or long period of time," "when I did not know in advance that someone was going to be out, we took a hit." (Doc. 79-7 PageID. 1427). "We had to pull, you know, talent from one location to move them around" and "when you move talent from one location, that location suffers." (Doc. 79-7 PageID.1427-28). "[I]f a location goes a couple of days without a human presence there, it's real bad because now the trades aren't getting what they need. The other employees are not getting what they need, they're having to go longer distances to get what they need." (Doc. 79-7 PageID. 1428). "It makes it stressful when you have to constantly keep adjusting without prior knowledge"; "it can put a strain on a lot of folks." (Doc. 79-7 PageID. 1429). After being absent for a day Cooper could not make up the work because the job needed to be done that day. (Doc. 79-7 PageID.1433-34). "When somebody walks to the crib" or cage and "it's empty and it's locked and no one is in there to help them", then "that employee cannot be engaged in work" and has "to go back and find another location that is currently open." "Any delay in supply is a delay in ship" and any time an "employee cannot be fully engaged on that boat working is a loss of time." (Doc. 79-7 PageID. 1448).

Leachman said he would get frustrated trying to deal with Cooper's unexpected absences and trying to figure out what to do to perform the daily duties each day and not get too far behind – a little behind is going to happen, but he did not want it "to cripple us." (Doc. 79-7 PageID. 1452-1453). Willie Thompson, who did the same job as Cooper, states that he "had no problem covering for Mr. Cooper when he was absent" and that covering for Cooper did not make it any more difficult for Thompson. (Doc. 84-12 PageID. 2256). Jeremie Raine, who was a Logistics Associate I, reports that some Logistics Associates served as floaters, who had the primary responsibility to fill-in when Logistics Associates were absent. Because the tool cribs inside the Bay were always required to be tended, Austal had employed these floaters and there were always enough floaters to man the tool cribs. Raine also reports that because Austal began automating tool cribs in 2014, employees could check out their own supplies using a badge without a Logistics Associate having to be present. At times Raine had to cover for Cooper, but Raine reports that it was never a hardship filling in for Cooper or other Logistics Associates. (Doc. 84-11 PageID.2253-55).

Cooper had available to him up to 12 weeks of FMLA leave on a rolling calendar-year basis. (Doc. 79-11 PageID. 1698). Additionally, Austal provided extended leave of absence ("ELOA") for continuous (block), non-FMLA absences upon a qualifying employee's request. The ELOA leave could not be used intermittently or retroactively to cover attendance occurrences already incurred at the time of the employee request. (Doc. 79-5 PageID. 1192, 1260-1261).

In March 2014, Senior Manager of Compensation and Benefits, Deborah Knepton and Human Resources Coordinator, Nick Robertson, met with Cooper to advise him of his low FMLA leave balance (he had used 57.85 days of his allotted 60 days) and that it would not renew until June 11, 2014. At that point Cooper had used five medical-excuse days and had incurred four-and-a-half "occurrences." (Doc. 79-8 PageID. 1470-1471, 1536; Doc. 84-5 PageID. 20185-2088).

On May 6, 2014, while at work, Cooper passed out and fell because of low blood sugar and injured his wrist

. (Doc. 84-28 PageID. 2345-2360). Cooper returned to work on May 7, 2014 but Austal would not allow Cooper to work because he did not have a note from his doctor showing that he was cleared to return to work. (Doc. 84-28 PageID. 2352). Cooper was evaluated by his doctor on May 7...