Lewis v. City of Union City

• Decision Date: 15 August 2019
• Docket Number: No. 15-11362,15-11362
• Citation: 934 F.3d 1169
• Parties: Jacqueline LEWIS, Plaintiff - Appellant, v. CITY OF UNION CITY, GEORGIA, Chief of Police Charles Odom, in his official and individual capacities, Defendants - Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

934 F.3d 1169

Jacqueline LEWIS, Plaintiff - Appellant,

v.CITY OF UNION CITY, GEORGIA, Chief of Police Charles Odom, in his official and individual capacities, Defendants - Appellees.

No. 15-11362

United States Court of Appeals, Eleventh Circuit.

August 15, 2019

Cheryl Barnes Legare, Legare Attwood & Wolfe, LLC, Decatur, GA, Brian J. Sutherland, Buckley Beal, LLP, Atlanta, GA, for Plaintiff-Appellant.

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

Lisa Catherine Lambert, Law Office of Lisa C. Lambert, Atlanta, GA, for Amicus Curiae Georgia, Florida and Alabama Chapters of National Employment Lawyers Association.

Before TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN,^* District Judge.

KAPLAN, District Judge:

Jacqueline Lewis, an African-American police detective in Union City, Georgia, was terminated abruptly from her position after about ten years of service. The ostensible reason was that Ms. Lewis was absent without leave—this notwithstanding that the Union City Police Department ("UCPD") only days earlier had placed her on indefinite administrative leave pending resolution of the questions whether she safely could be subjected to a Taser shock or exposed to pepper spray.

Ms. Lewis here contends that her discharge reflected unlawful disability and/or racial or gender discrimination. She seeks back pay, damages, and reinstatement.

I. FACTS

A. Ms. Lewis’s Medical Condition

Jacqueline Lewis joined the UCPD as a police officer in 2001. She was promoted to detective in 2008.

In January 2009, Ms. Lewis suffered a small heart attack. The episode was unusual in that a cardiac catheterization showed "no clot and no disease" in Ms. Lewis’s heart, although heart attacks generally are caused by a "clot inside the coronary arteries." And while Dr. Arshed Quyyami, a Harvard-trained cardiologist who treated Ms. Lewis at Emory University’s cardiology clinic, described the damage to Ms. Lewis’s heart as being "miniscule to small," enzyme levels confirmed the diagnosis of a heart attack. Dr. Quyyami found also that the "global function of the heart was unaffected," though he noted that people who have had heart attacks tend to be at greater risk for subsequent heart attacks.

Ms. Lewis’s primary care doctor, Dr. Erinn Harris, noted that Ms. Lewis had some residual "mild tricuspid regurgitation" but concluded that this did not have much effect on her bodily function. Ms. Lewis occasionally did complain of paroxysmal nocturnal dyspnea—in other words, shortness of breath while lying down—which, according to Harris "can affect [Lewis’s] ability to sleep." Dr. Harris testified, however, that Lewis does not have heart disease that "chronically affects her life." Accordingly, Dr. Harris, following Ms. Lewis’s heart incident, cleared her to return to work without any "cardiac restrictions" because there "weren’t any blockages to her heart."

After taking the month of February 2009 off, Lewis returned to full, active duty on March 2, 2009. When she started back, her lieutenant, Jerry Hester, told her that detectives did not respond directly to calls but that they waited to be called out specifically. Hester testified that he assigned "children and women crimes" to the "lady" detectives and gave "the more aggressive stuff" to himself or Sergeant Cliff McClure.

B. UCPD’s New Taser Policy

Prior to 2010, the UCPD allowed officers to choose which non-lethal weapons they carried. The options included oleoresin capsicum ("OC") spray,¹ ASP batons,² and Tasers.³ In early 2010, however, then-Police Chief Charles Odom purchased Tasers for all UCPD officers and required each to carry one.

Chief Odom testified that he thought Tasers were superior to the ASP baton and OC spray because Tasers would "reduc[e] the risk of injury to officers, suspects, and the public because [a Taser] allows officers to maintain distance from an uncooperative subject when attempting to obtain compliance and effect an arrest." Although the manufacturer, Taser International, does not require trainees to receive a Taser shock to be certified in Taser use, Odom required his officers to receive a five-second shock as part of the Taser training. In moving for summary judgment, he offered five justifications for this requirement:

"assisting [officers] in (1) evaluating the appropriate circumstances under which to deploy the Taser, (2) testifying in Court about the effects of the Taser, (3) knowing that they can go ‘hands-on’ with an uncooperative subject without being shocked, (4) considering how to defend themselves if threatened with a Taser or similar device, and (5) understanding what it feels like to be shocked by the Taser in the event of an accidental exposure so that they will have confidence in their ability to survive the experience."

C. Ms. Lewis Is Scheduled for Training

Similar to Taser certification, officers certified to use pepper-spray required training which involved exposure to pepper spray. Lewis previously had been exposed to pepper spray when she was at the police academy, but was not certified in its use. On June 14, 2010, the department therefore scheduled Lewis for pepper-spray training three days later, on June 17, 2010.

Ms. Lewis was concerned that her prior heart attack might increase her risk of injury from a Taser shock or exposure to pepper spray as compared with the average officer. So she saw Dr. Harris, her primary care doctor, on June 15, 2010 to discuss the issue.

Dr. Harris shared Ms. Lewis’s concerns, especially with regard to the Taser shock, worrying that the "electrical current ... could cause undue stress to [Lewis’s] ... heart." Dr. Harris therefore wrote to Chief Odom. Her letter explained that she had been treating Ms. Lewis for "several chronic conditions including a heart condition" and that she "would not recommend that a Taser gun or OC spray be used on or near [Lewis] secondary to her chronic conditions." Dr. Harris urged the department to take this recommendation "into consideration when making any decisions about occupational training."

D. Union City’s Leave Policies

At this point we turn briefly to Union City’s policies with respect to employee leave, as they are essential to understanding events subsequent to Dr. Harris’s June 15, 2010 letter.

The City of Union City’s Employee Handbook (the "Handbook"), as revised in March of 2010 and in force at the time of the events of this lawsuit, provided for various types of leaves of absence. Chapter 6, section 1.A, permitted an employee to request an unpaid leave of absence of up to 180 days. Notably, this provision stated also, however, that "[a]n employee may also be placed on leave of absence status without application."

In addition, Union City had a medical leave policy under the Family and Medical Leave Act ("FMLA"). It provided employees with up to 12 weeks of unpaid leave for, inter alia , a "serious health condition that makes the employee unable to perform the functions of that employee’s job." Under the procedures set forth in the Handbook, when the need for medical leave could be anticipated, the employee was required to submit the paperwork thirty days prior to the effective date of the leave. Where such need was unanticipated, however, the Handbook provided no time period within which the paperwork had to be submitted.

E. Ms. Lewis Placed on Administrative Leave

On June 17, following Chief Odom’s receipt of Dr. Harris’s June 15 letter, Assistant Chief Lee Brown notified Ms. Lewis by letter on June 17 that she was being placed on "administrative leave without compensation until such time as your physician releases you to return to full and active duty ." He wrote that he took this action due to what he described as Dr. Harris’s "instructions [that Lewis] ... not come into contact with either" a Taser or OC spray, which, Brown wrote, could happen in "a variety of [field] and office settings." The letter told Ms. Lewis to contact Tracie McCord in human resources to complete "the necessary FMLA paperwork concerning your absence." But the letter fixed no time period during which Ms. Lewis was required to be medically cleared to return to full and active duty. Nor did it specify any date by which the FMLA paperwork had to be completed. Lastly, although the letter said Ms. Lewis was being placed on leave without pay, it gave her the option to use her accrued leave "until the time such leave is expended," an option that would have permitted her to continue being paid until she exhausted her accrued vacation and sick time. The implication of the letter, a jury might find, was that Ms. Lewis would be on unpaid administrative leave indefinitely, save to the extent she was on paid leave until she used her accrued paid leave to continue to receive her salary.

Ms. Lewis wrote Chief Odom on July 1, 2010, asking permission to resume her duties as a detective, explaining that she was "only asking for an accommodation on the taser [sic] and OC training." She sent Chief Odom a second letter, dated July 1, requesting permission to "seek temporary employment elsewhere while the Union City Police department and my doctor (Dr. Harris) are trying to come to some conclusion on this medical matter." She expressed concern in this second letter that her sick and vacation leave had nearly run out and that she "need[ed] to be able to provide for [her] family."

Chief Odom directed Assistant Chief Brown to reply to Ms. Lewis, which he did by letter dated July 1, denying her request to return to work. Brown noted first that Lewis was "out of work early in 2009 with what was suspected of being a heart attack," but that she subsequently received medical clearance to return to work without limitation. Brown then stated that "this changed"—presumably referring to Ms. Lewis’s ability to work without limitation—when the department received Dr. Harris’s June 15 letter. Brown’s letter concluded that, "[b]ased on your current job description, your doctor’s letter...