Funderburg v. City of Pine Bluff

• Decision Date: 30 September 2019
• Docket Number: Case No. 5:18-cv-00009 KGB
• Parties: JEREMY FUNDERBURG PLAINTIFF v. CITY OF PINE BLUFF, ARKANSAS DEFENDANT
• Court: U.S. District Court — Eastern District of Arkansas

JEREMY FUNDERBURG PLAINTIFF v. CITY OF PINE BLUFF, ARKANSAS DEFENDANT

Case No. 5:18-cv-00009 KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

September 30, 2019

OPINION AND ORDER

Before the Court is a motion for summary judgment filed by defendant City of Pine Bluff, Arkansas ("Pine Bluff") (Dkt. No. 7). Plaintiff Jeremy Funderburg responded in opposition, and Pine Bluff replied (Dkt. Nos. 15, 21). Also, by prior Order, this Court permitted Pine Bluff to amend its motion for summary judgment (Dkt. No. 29). Pine Bluff's amended motion for summary judgment is pending (Dkt. No. 31). Mr. Funderburg responded in opposition to the amended motion (Dkt. No. 35). Pine Bluff replied (Dkt. No. 39). For the reasons that follow, the Court grants Pine Bluff's motion for summary judgment and amended motion for summary judgment (Dkt. Nos. 7, 31).

In his complaint, Mr. Funderburg brings claims against Pine Bluff under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("Rehabilitation Act"); the Arkansas Civil Rights Act of 1993 ("ACRA"), codified at Ark. Code Ann. § 16-123-101, et seq.; and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., and he brings an illegal exaction claim. Pine Bluff seeks summary judgment on all of Mr. Funderburg's claims.

I. Factual Background

Unless otherwise noted, the following facts are pertinent to Mr. Funderburg's claims in dispute, taken from Mr. Funderburg's response, and what this Court construes as his supplement response, to Pine Bluff's statement of uncontested material fact and statement of additional material facts (Dkt. Nos. 17, 37), or taken directly from record evidence presented to the Court.

A. Injury, Surgeries, And Restrictions

Mr. Funderburg came to work at the Pine Bluff Police Department on March 21, 2008 (Dkt. No. 37, ¶ 1). In 2010, Mr. Funderburg was in a non-work-related accident in which he injured his neck and spine (Id., ¶ 5). Mr. Funderburg had a first surgery on his neck on August 17, 2016, after which he was off from work for a full month, and then he was told that he would have to see another doctor for further treatment of his condition (Id., ¶ 6). Mr. Funderburg underwent a second surgical procedure in about mid-November 2016, ultimately resulting in the fusion of his cervical and thoracic spine from C1 through T5 (Id., ¶ 7).¹ On January 4, 2017, the Mr. Funderburg's physician, Dr. Noojan Kazemi, released him to return to work on light duty (Id., ¶ 8). The Court notes that this release, by its terms, restricts Mr. Funderburg's activities for one month (Dkt. No. 9-1, at 91).

Mr. Funderburg brought the note from Dr. Kazemi to Ivan Whitfield, Acting Chief of Police ("Chief Whitfield") (Dkt. No. 37, ¶ 9). According to Mr. Funderburg's affidavit, Lieutenant Ralph Isaac and Assistant Chief Kelvin Sergeant were also present (Dkt. No. 15-1, at 1). According to Mr. Funderburg's deposition, Chief Whitfield said, "the letter wasn't good enough. It didn't have enough information." (Dkt. No. 9-1, at 38). In response, Mr. Funderburg contends he said to Chief Whitfield, "I will call my doctor and you all can talk to him. I said, I can't tell him what to put on that letter." (Id.). Lieutenant Isaac then said, "[W]e already tried.[The doctor] won't tell us nothing." (Id.). According to Mr. Funderburg's affidavit, Chief Whitfield "had an abrupt and unpleasant manner with [Mr. Funderburg] in terms of his tone, rapidity of speech, facial expression and body language. It was clear that he was angry with [Mr. Funderburg]." (Dkt. No. 15-1, at 1). Mr. Funderburg also states in his affidavit that Chief Whitfield "said he needed a note and [Mr. Funderburg] asked to go to their doctor. The Chief said something to the effect that . . . it was on [Mr. Funderburg]." (Id.). Mr. Funderburg contends that he said okay and then left (Dkt. No. 37, ¶ 9).

Mr. Funderburg received two notes from physicians describing his physical limitations. One note from Dr. Scott Schlesinger, which is not dated but bears a facsimile mark of January 24, 2017, states:

This patient underwent a posterior cervical decompression and fusion on 08/17/2016.

The patient may return to his job at the police department in a desk job capacity only.

Sedentary Work: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently or constantly to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time, Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

(Id., ¶ 10; Dkt. No. 9-4).

Mr. Funderburg also had Dr. Nancy Williams, Mr. Funderburg's family doctor, fill out paperwork outlining his physical limitations (Dkt. No. 37, ¶ 11). That document also bears the facsimile mark of January 24, 2017 (Id.). Dr. Williams stated with regard to Mr. Funderburg's impairments that he: "Can't bend neck. Can't sit for more than 1 [hour]. Can't turn left or right." (Dkt. No. 9-5, at 1). She also stated that Mr. Funderburg: "Can't do job as vice narcotics detective. Couldn't defend self." (Id., at 1). Further, she opined that with regard to Mr. Funderburg's job functions that he: "Can't turn neck. Can't afford for there to be any trauma to neck. Couldn'tdrive police car. Couldn't be in pursuit. Couldn't apprehend a criminal." (Id., at 2). She indicated that Mr. Funderburg is limited to lifting no more than 20 pounds and that he cannot walk more than 15 minutes at a time (Id., at 1). She suggested that he not come into contact with criminals (Id., at 2). Finally, her recommendation was: "Please provide a desk job for patient." (Id.).

Dr. Williams also wrote a note dated January 24, 2017,² regarding Mr. Funderburg's physical limitations:

Mr. Funderburg, after two neck surgeries and a rod from C1 to T5 cannot perform the duties of a vice and narcotic detective. Any further injury to his neck could paralyze him. He is able to do a desk job and is very willing to do so. It is our hope that you can accommodate Mr. Funderburg with a job that will not put him at risk.

(Dkt. No. 9-1, at 90).

B. Temporary Light Duty

The Pine Bluff Police Department has a Temporary Light Duty Policy (Dkt. No. 37, ¶ 12). The policy states, in relevant parts:

III. DEFINITIONS

ELIGIBLE PERSONNEL: For purposes of this policy, any full-time sworn member of the Pine Bluff Police Department suffering from medically certified illness or injury requiring treatment of a licensed health-care provider and who, because of injury or illness is temporarily unable to perform the regular assignment but is capable of performing alternative assignments.

. . .

IV. PROCEDURES

A. GENERAL PROVISIONS

. . .3. No specific position within this agency shall be established for use as a temporary light- duty assignment, nor shall any existing position be designated or utilized exclusively for personnel on temporary light duty.

4. Light-duty assignments are strictly temporary and normally should not exceed six months in duration. After six months, personnel on temporary light duty who are not capable of returning to their original duty assignment shall:

a. Present a request for extension of temporary light duty, with supporting documentation, to the chief executive officer or his designate; or

b. pursue other options as provided by employment provisions of this agency or federal or state law.

(Id.; Dkt. No. 9-6, at 1-2).

According to his deposition, Mr. Funderburg took his doctors' notes to Chief Whitfield who stated to Mr. Funderburg that "[t]here's no such thing as a light duty job where you will not be at risk." (Dkt. No. 37, ¶ 13; Dkt. No. 9-1, at 45). Mr. Funderburg admits that he took his notes to Chief Whitfield, that Chief Whitfield claimed there were no light duty jobs, and that he worked at the telephone reporting unit ("TRU") for a month (Dkt. No. 37, ¶ 13). While Mr. Funderburg worked the TRU job at that time, Pine Bluff had someone drive to pick him up for, and take him home from, work (Dkt. Nos. 9-1, at 52; 15-6, at 1). Mr. Funderburg denies that there were no light duty jobs available that he could do (Dkt. No. 37, ¶ 13). He contends that there was the TRU job, the internal affairs ("IA") job, and the evidence room ("Evidence") job (Id.). Further, he asserts that the policy allowed for six months (Id.).³ According to his affidavit, Mr. Funderburg wasinformed "when [he] went for [his] surgery" that he "had the IA job," which "is a light duty job." (Dkt. No. 15-1, at 1). That parties dispute whether this offer was made and, if so, by whom. Mr. Funderburg acknowledges that some of his limitations might make it a little more difficult or cause Mr. Funderburg to do the job in a different way than a healthier person, but Mr. Funderburg contends that he could do these jobs (Dkt. No. 37, ¶ 13). Mr. Funderburg further states in his affidavit: "I have never, ever seen or heard of IA being called for an officer needs assistance or to a crime scene. I knew who the IA people were . . . and never saw them show up to anything." (Dkt. No. 15-1, at 1). He adds that this is also true of the Evidence job and administrative team (Dkt. No. 37, ¶ 13). In his affidavit, Mr. Funderburg also states that "[t]he IA job had not been filled at this time." (Dkt. No. 15-1, at 1).

Mr. Funderburg represents that, in response to the Equal Employment Opportunity Commission ("EEOC"), Pine Bluff represented that Mr. Funderburg "was advised that civilian employment was a possibility. . . if he was offered a non-uniformed position in TRU," a division of the Pine Bluff Police Department (Dkt. No. 37, ¶ 13). Mr. Funderburg maintains that Pine Bluff told the EEOC that "[h]e declined the position because he was not able to accrue the additional time (eight years) needed for him to tire under...