Fussell v. Georgia Ports Authority
| Citation | 906 F. Supp. 1561 |
| Decision Date | 27 September 1995 |
| Docket Number | Civ. A. No. 494-318. |
| Parties | Thomas E. FUSSELL, Plaintiff, v. GEORGIA PORTS AUTHORITY, Defendant. |
| Court | U.S. District Court — Southern District of Georgia |
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Michael L. Edwards, Savannah, GA, for plaintiff.
Thomas J. Mahoney, Jr., Ranitz, Mahoney, Forbes & Coolidge, Savannah, GA, W. Christopher Arbery, G. Paris Sykes, Kilpatrick & Cody, Atlanta, GA, for defendant.
In this American With Disabilities Act (ADA) suit against the Georgia Ports Authority ("GPA"), plaintiff Thomas E. Fussell contends that the GPA violated the ADA by discharging him for failing a firearms proficiency test, a failure caused by his "benign essential tremor" disability. Moving for summary judgment, the GPA denies discriminating against him. Fussell opposes the motion, maintaining that an issue of fact remains.
The GPA maintains a deep water terminal in Savannah, Georgia, which serves as a point of entry for the United States. Statement ¶¶ 4, 7; Collins Aff. ¶ 7. The GPA operates its own police force to protect it. Statement ¶ 4. Much of that force is authorized to enforce the law and make arrests on GPA property. Statement ¶ 5; O.C.G.A. § 52-2-10. Occasionally it assists the U.S. Customs Department in gate searches and detaining criminal suspects. Collins Aff. ¶ 7.
Plaintiff Fussell commenced employment with the GPA as a GPA police officer on August 6, 1979. Statement ¶ 1. Promoted from officer to investigator in 1981, he later became sergeant before shifting from hourly to salaried status in 1992. Statement ¶ 2. On May 24, 1993, Fussell failed to pass part of a GPA-mandated, semi-annual "firearm qualification test," Statement ¶ 18, a test that he had passed in the past. Fussell Dep. at 22. There is no disagreement that the firearm test, which is given over two days, is uniformly applied and administered to measure individual skills and abilities with a gun. All officers are tested under the same conditions. Statement ¶¶ 9-15.
Plaintiff did not inform the GPA of any medical, physical or mental problems before or during the test. Statement ¶ 18.2 Despite being provided instruction, as well as permission to switch from a .38 caliber to a .9 mm pistol, Fussell nevertheless again failed the second part of the test two days later. Statement ¶ 19-20. Fussell did not practice between tests. Statement ¶ 19. Nor did he complain of any impediment, or request that any accommodation be made for the second day of testing either. Statement ¶ 20. Plaintiff claims that he requested no accommodation because he was not informed that the GPA would make any accommodation if it were asked. Fussell Aff. ¶ 13.
Following Fussell's failure at the target range, he contacted the GPA's human resource manager to seek another position. Statement ¶ 22; Fussell Dep. at 31. In the meantime, the GPA placed plaintiff on sick leave so he could be evaluated by a specialist. Statement ¶ 22; Fussell Dep. at 35. Fussell's physician subsequently informed the GPA that he could perform only sedentary work. Statement ¶ 22. Fussell then took vacation leave. Fussell Dep. at 38. He later returned to the GPA Human Resources Department in search of alternative employment. Statement ¶ 23; Fussell Dep. at 39-40. At that time he completed a questionnaire detailing his experience and qualifications. Id.
Two weeks later, Fussell, for the first time, informed the GPA that he believed he had been unable to pass the firearm qualification test because of "certain tremors." Statement ¶ 24; Fussell Dep. at 44. He claimed that doctor-prescribed medication brought his tremors under control, then requested another firearms proficiency test. Id.
The GPA responded by requesting medical documentation of his condition; Fussell was to return a questionnaire to be completed by his physician. Statement ¶ 25. Plaintiff returned the questionnaire completed but unsigned and missed the GPA's response deadline in the process. Statement ¶ 26. The GPA then informed Fussell by letter that it had not received the information it had requested and that his paid benefits with the GPA had expired. In addition, the GPA considered his employment terminated but would discuss with him any future GPA employment he might seek. Statement ¶ 27.
Fussell appealed his termination within the GPA. Statement ¶ 28. In response, the GPA offered plaintiff another opportunity to pass the firearm-proficiency test, but requested medical documentation concerning his condition. Statement ¶ 28. Subsequently, Fussell's physician sent the GPA a letter stating that Fussell was being treated for "benign essential tremor." Statement ¶ 29. However, the letter also stated that Fussell should be able to take the test and that present treatment, which included medication, should not interfere with his employment. Statement ¶ 29; Strickland Dep. at 43-45, 51-52.
Plaintiff returned to the firing range to take the GPA's test and requested no modification other than permission to switch from a .38 caliber revolver to a .9 mm pistol. Statement ¶ 30. The GPA accommodated him, id., but plaintiff again failed the test. Statement ¶ 31. The GPA offered, but Fussell again failed to exploit, an opportunity to practice between testing days. Id. Fussell also failed the second day of testing. Statement ¶ 32. Once again, he made no accommodation request. Id.; Fussell Dep. at 66-67.
The GPA then encouraged plaintiff to apply for any future job openings that interested him and to contact its job-opening hotline. Statement ¶ 33. Nevertheless, the GPA's Human Resources department never heard from Mr. Fussell. Id.; Fussell Dep. at 69. Instead, he filed a charge of discrimination with the EEOC a month later and initiated this lawsuit following his receipt of the EEOC's right-to-sue notice. Statement ¶ 34. In addition, Fussell applied for and received Social Security benefits, qualifying for 100% disability. Statement ¶ 35. He has been receiving 100% disability benefits since. Fussell Aff. ¶ 11.
Finally, Fussell maintains that the GPA failed to contact him about a "hazardous materials handler" position that opened up within ninety days of his discharge. Fussell Aff. ¶ 10. However, he provides no evidence that he informed the GPA of his interest in that position.
Haysman v. Food Lion, Inc., 893 F.Supp. 1092, 1099 (S.D.Ga.1995). The terms employed in the above excerpt require definition within the context of what constitutes a prima facie case.
42 U.S.C. § 12102(2) (emphasis added); Milton v. Scrivner, 53 F.3d 1118, 1123 (10th Cir.1995). These "disability" criteria were explored in Wooten v. Farmland Foods, 58 F.3d 382, 385-86 (8th Cir.1995); Haysman, 893 F.Supp. at 1099-1100; Rhodes v. Bob Florence Contractor, Inc., 890 F.Supp. 960, 962-63 (D.Kan.1995); and Ricks v. Xerox Corp., 877 F.Supp. 1468, 1474-76 (D.Kan. 1995). Disability determinations often turn on whether the impairment substantially limits a "major life activity" (e.g., "an individual whose legs are paralyzed," 29 C.F.R. Pt. 1630, App. § 1630.2(j) at 402 (1995)), in which case an impairment may be shown.
In contrast, if the individual is not "substantially limited with respect to ... a major life activity, the individual's ability to perform the major life activity of working should be considered." 29 C.F.R. Pt. 1630, App. § 1630.2(j) at 403 (1995) (emphasis added). However, a substantial limitation in a major life activity typically obviates the need to inquire as to work activity. For example, "if an individual is blind, i.e., substantially limited in the major activity of seeing, there is no need to determine whether the individual is also substantially limited in the major activity of working." 29 C.F.R. Pt. 1630, App. § 1630.2(j) at 403 (1995). But where the ADA plaintiff tries to show a substantial limitation in the major life activity of working, three additional factors may be considered, including the geographical area to which the individual has reasonable access and a "similar jobs" comparison analysis as set forth in 29 C.F.R. § 1630(j)(3)(ii) (1995). Rhodes, 890 F.Supp. at 963.
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