Jordan v. City of Union City

• Decision Date: 30 March 2015
• Docket Number: Civil Action No. 1:13–CV–02960–AT.
• Citation: 94 F.Supp.3d 1328
• Parties: Jason JORDAN, Plaintiff, v. CITY OF UNION CITY, GEORGIA, Defendant.
• Court: U.S. District Court — Northern District of Georgia

94 F.Supp.3d 1328

Jason JORDAN, Plaintiff

v.CITY OF UNION CITY, GEORGIA, Defendant.

Civil Action No. 1:13–CV–02960–AT.

United States District Court, N.D. Georgia, Atlanta Division.

Signed March 30, 2015.

A. Bradley Dozier, Jr., Dozier Law Group, LLC, Atlanta, GA, for Plaintiff.

Sharon P. Morgan, Tracy Lynn Glanton, Elarbee, Thompson, Sapp & Wilson, LLP, Atlanta, GA, for Defendant.

ORDER

AMY TOTENBERG, District Judge.

Plaintiff Jason Jordan was a police officer in training who had anxiety attacks and was terminated after six weeks of employment with the Union City Police Department. Plaintiff argues that he was discriminated against based on Defendant's perception and treatment of his disability in violation of the Americans with Disabilities Act, as amended. 42 U.S.C. § 12101 et seq. The matter is currently before the Court on the Magistrate Judge's Report and Recommendation (“R & R”) [Doc. 52] that the Defendant City of Union City's (“Union City”) Motion for Summary Judgment [Doc. 34] be granted. Plaintiff has filed objections [Doc. 56] and Union City has filed responses thereto [Doc. 57].

I. Legal Standard

The Court reviews a Magistrate Judge's R & R for clear error if no objections are filed, and it may “accept, reject, or modify” these findings and recommendations. 28 U.S.C. § 636(b)(1). If a party files objections, the district court must determine de novo any part of the magistrate judge's disposition that is the subject of a proper objection. Fed.R.Civ.P. 72(b) ; 28 U.S.C. § 636(b). As Plaintiff filed timely objections to certain of the R & R findings and recommendations, the Court reviews those findings and recommendations on a de novo basis. All other recommendations are reviewed for clear error.

The Court has reviewed the Magistrate Judge's objected-to determinations on a de novo basis. These include her findings and recommendations that (1) Plaintiff was not “regarded as” disabled; (2) Plaintiff was not qualified for the police officer position at issue; (3) Defendant established the direct threat defense; and (4) Plaintiff did not present direct evidence of disability discrimination on the part of Captain Tate, the decisionmaker in this case. Based on findings (1), (2), and (3) above, the Magistrate Judge found that Plaintiff had failed as a matter of law to establish a prima facie case of discrimination.

The Court reviews the other aspects of the R & R for clear error. Plaintiff did not object to the Magistrate Judge's presentation of the facts and factual disputes in Section I of the R & R, or her determination that Plaintiff suffered a prohibited action, (R & R at 22–23), and has an impairment. (R & R at 19–20); 29 C.F.R. § 1630.2(h)(2) (defining mental impairment

as “Any mental or psychological disorder, such as an ... emotional or mental illness.”).¹ Plaintiff also did not object to the Magistrate Judge's determination of the relevant essential functions of a Union City Police Officer. The Court has reviewed Section I and the above determinations, finds no clear error, and adopts them here.

II. Factual Background

As recognized by the Magistrate Judge, the following facts² are properly before the Court on summary judgment. Where there is a dispute of fact, the Magistrate Judge identifies it:

On October 1, 2012, Plaintiff Jason Jordan began his first job in law enforcement as a Union City police officer. [Defendant's Statement of Material Facts (“DSMF”) ¶ 1]. Plaintiff Jordan's employment was subject to a six month probationary period during which he was required to complete Union City's Field Training Officer Program. [DSMF ¶¶ 2, 3]. The first phase of the Program requires that the trainee ride with a Field Training Officer (“FTO”) for at least 60 days. During this time, the FTO trains on the City's policies and procedures, the law, responding to 911, and initiating activity in the field. [DSMF ¶ 4]. The FTO evaluates the trainee's performance on a daily basis by filling out a Daily Observation Report (“DOR”). [DSMF ¶ 5]. The DORs are forwarded to Captain Eugene Tate, who oversees the FTO Program. [DSMF ¶ 6]. Captain Tate reviews the DORs and monitors the trainee's progress. [DSMF ¶ 7].

On the DORs, one of the headings is “Appearance,” and under this is a subheading titled “Fit for Duty: Mentally/Physically.” Plaintiff received either a 3 or 4 (out of 5) on all of his DORs under this subheading, which indicates satisfactory or above satisfactory performance in that area. Written on many of the DORs under this subheading was “comes in ready to go.” [Plaintiff's Statement of Material Facts (“PSMF”) ¶ 2; Tate Declaration (“Dec.”), Exhibit (“Ex.”) A]. Of the 549 numeric scores Plaintiff received on the DORs that Defendant produced in discovery, 491(88%) were a 3 or 4. [Plaintiff's Deposition (“Pla. Dep.”) at 173; Crawl Dep., Ex. 3; PSMF ¶ 9].

During his first month of training, Plaintiff was assigned to morning watch (midnight to 8:00 a.m.) and trained with FTOs Walker Heard and Marquis Grant. [DSMF ¶ 8]. Approximately twelve days into Plaintiff's FTO period, FTO Grant noted on Plaintiff's DOR under the heading “Critical Performance Task” that Plaintiff “can be over excited under stress.” [Tate Dec. ¶ 3, Ex. A; DSMF ¶ 9]. Less than ten days later, FTO Heard noted on four consecutive DORs under the heading “Critical Performance Task” that Plaintiff is “somewhat timid” under stressful conditions. [DSMF ¶ 10]. However, FTO Heard testified that he left the “somewhat timid” notation on two of the four DORs as nothing more than a reminder to him that this is something he might want to look for in the future, not that there was a specific incident or problem with Plaintiff's performance on those two dates. [Heard Affidavit (“Aff.”) ¶ 27; PSMF ¶ 13].

In Captain Tate's experience, it was not uncommon for new officers to show some initial apprehension early in the training program before the officer gained more confidence to effectively perform the job. [DSMF ¶ 16]. According to FTO Heard, Plaintiff did a “very good job” as a new police officer. [Heard Aff. ¶¶ 8–22; PSMF ¶ 6]. Heard stated that Plaintiff interacted well with the public, he was smart and attentive, he wanted to learn, he listened and followed instructions well, he had a good attitude, and he took the job seriously.

[Heard Aff. ¶¶ 8, 9; PSMF ¶ 7]. Similarly, FTO Grant stated that his experience with Plaintiff was very positive and that Plaintiff was “superb” with his interactions with the public. [Grant Dep. at 18–19; PSMF ¶ 4]. Grant gave Plaintiff more scores of 4 on his DORs than any other officer whom Grant had trained in the past, which is indicative of commendable performance in the field. [Grant Dep. at 52; Pla. Dep. at 173; Pla. Dec. ¶ 7; PSMF ¶ 8].

Captain Tate testified that during a Taser training session, he observed that Plaintiff was overly apprehensive about being exposed to a Taser and expressed multiple times, “I can't do this. I can't do it. I don't think I can do this.” [Tate Dep. at 38–39]. Captain Tate also testified that Plaintiff was flushed, breathing rapidly, and his skin was clammy and that he asked Captain Tate what would happen if he did not participate in the training. [Id. ]. Plaintiff disputes much of Captain Tate's testimony about the Taser training and testified, “At most, I questioned what would happen if I chose not to subject myself to the electric shock from the Taser.” [Pla. Dec. ¶ 9]. Plaintiff was ultimately exposed to the Taser, as required by the policy of the Union City Police Department. [Tate Dep. at 39–40; Pla. Dec. ¶ 10]. Plaintiff self-administered an additional shock to his leg from the Taser, which was also required. [Pla. Dec. ¶ 10].

In one incident during Plaintiff's field training, he disarmed a man who was in possession of a deadly weapon (firearm) in a car after a traffic stop. [Grant Dep. at 44–48; PSMF ¶ 18]. On another occasion, Plaintiff attempted to pursue fleeing suspects after a high speed chase into a wooded area before the police dogs were dispatched. [Grant Dep. at 44; Pla. Dec. ¶ 8; PSMF ¶ 19]. FTO Grant had to call Plaintiff off and instruct him not to pursue the suspects because it could affect the police dogs' ability to pick up the suspects' scent. [Grant Dep. at 44; Pla. Dec. ¶ 8; PSMF ¶ 20]. Plaintiff also took charge of a situation at an apartment complex when he arrested three male suspects and took them into custody. [Grant Dep. at 5051; PSMF ¶ 21].

In early November 2012, Captain Tate received a DOR from FTO Grant, DOR Number 27, noting that Plaintiff needs to “[s]low down” and that “[w]hen stressed [he] panics.” (DSMF ¶ 17; Tate Dec. ¶ 5, Ex. B). FTO Grant further reported on the DOR that when Plaintiff is stressed, he “makes mistakes and is asked to slow down.” [DSMF ¶ 18; Tate Dec. ¶ 5, Ex. B]. Captain Tate was asked and testified to the following:

Q. Okay. When you saw that DOR, I mean, did you have some sort of immediate concern about that?

A. Well, everything starts building upon each other. If I start to see the same thing, being timid, doesn't work well under stress, doesn't handle stressful conditions well, those things start to be concerns.

[Tate Dep. at 29]. Captain Tate testified that he did not take any action against Plaintiff after receiving FTO Grant's DOR because Plaintiff was about to be transferred to evening watch with FTO Travis Crawl and Tate was waiting to see whether Plaintiff's response to stressful situations would improve under Crawl's guidance. [Tate Dec. ¶ 5; DSMF ¶ 24]. Captain Tate believed that FTO Crawl was a more aggressive officer than Heard. Tate was hoping that training with Crawl would build Plaintiff's confidence. [Tate Dec. ¶ 5; DSMF ¶ 25].

Around mid-November 2012, Plaintiff began his assignment on evening watch (4:00 p.m. to midnight) with FTO Crawl. [DSMF ¶ 26]. On November 13, 2012, within a couple days of Plaintiff's new assignment, Captain Tate received a memorandum from Sergeant Windell Adams, the evening watch sergeant, stating:

This memo is

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