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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11362
________________________
D.C. Docket No. 1:12-cv-04038-RWS
JACQUELINE LEWIS,
Plaintiff - Appellant,
versus
CITY OF UNION CITY, GEORGIA,
CHIEF OF POLICE CHARLES ODOM,
in his official and individual capacities,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 15, 2017)
Before TJOFLAT and ROSENBAUM, Circuit Judges, and Kaplan,* District Judge.
*
The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of
New York, sitting by designation.
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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
question whether she safely could be subjected to a Taser shock as part of a new
UCPD training policy.
Ms. Lewis here contends that her discharge reflected unlawful disability
and/or racial or gender discrimination. She seeks back pay, damages, and
reinstatement. The matter is before this Court on appeal from the district court’s
grant of defendants’ motion for summary judgment dismissing the complaint. We
hold that the evidence raised genuine issues of material fact and therefore reverse.
I. FACTS
A. Ms. Lewis’s Medical Condition
Jacqueline Lewis joined the UCPD in 2000 as a patrol officer. 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.
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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.”
B. UCPD’s New Taser Policy
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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 Taser Training
1
OC spray, commonly known as pepper spray, is a nonlethal aerosol used to blind and
incapacitate temporarily in order to subdue a subject for arrest.
2
An ASP is an expandable baton carried on an officer’s duty belt.
3
A Taser is a brand of electronic control device, a nonlethal weapon that deploys an electric
shock that temporarily disables a subject through neuromuscular incapacitation.
4
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On June 14, 2010, Ms. Lewis was told to report for Taser training on June
17, 2010. Ms. Lewis was concerned that her prior heart attack might increase her
risk of injury from a Taser shock 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, 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
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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
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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. 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 first 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
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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 essentially makes it impossible for
you to work or be at work.” It denied Ms. Lewis’s request to resume her duties
“until your doctor releases you for duty.” Again, no time frame was fixed for
obtaining such a medical release.
Dr. Harris was on vacation for the first week of July and was unreachable
until July 7. Ms. Lewis so informed Assistant Chief Brown on July 2, adding that
she had scheduled an appointment for the day of Dr. Harris’s return. She asked
also for Assistant Chief Brown’s cell phone number so Dr. Harris could call him
directly.
Ms. Lewis emailed again on July 6 to remind Assistant Chief Brown that Dr.
Harris still was on vacation. He replied that day, providing his office telephone
number and instructing Ms. Lewis that Dr. Harris should call him or his assistant to
schedule a conversation. He stated also that “[a]s far as your seeking employment
outside of the agency after filing for Family and Medical Leave[, which never
occurred], it would be, as I understand, illegal for you to be employed elsewhere
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while you are currently on FMLA Leave with our department.” At that time,
however, Ms. Lewis was on administrative leave pursuant to Chief Brown’s June
17 letter, not FMLA leave. In fact, she had not applied for FMLA leave.
F. Ms. Lewis Is Terminated
Chief Odom testified that “I don’t want to use the word with ‘bated breath,’
but we were waiting for either her doctor’s appointment on the Wednesday [July 7]
or [to] hear from the doctor on Wednesday or for her to bring us something on
Wednesday to say here is where we are at or here is where we need to go or . . .
there is some kind of a plan of action here.” Dr. Harris in fact attempted to call on
July 7, but she did not have the correct phone number. In addition, although Dr.
Harris largely filled out the FMLA paperwork on July 7, she did not complete,
sign, and send it to the police department until July 12.
On July 8 at 10 a.m., Assistant Chief Brown terminated Ms. Lewis. He did
so without speaking to human resources manager Tracie McCord. Nor did he
make any attempt to contact Dr. Harris or to have anyone else from the department
contact her. His termination letter stated that Ms. Lewis had been placed on
administrative leave without pay on June 17 but had had the option to use her
accrued leave until it was exhausted. Brown then stated that her accrued leave was
exhausted on July 5, but that he “granted her request” because Ms. Lewis had
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advised him that Dr. Harris was on vacation until July 7, though it is not clear to
what request, if any, this referred. Restating but otherwise ignoring the fact that
his June 17 letter had placed Ms. Lewis on administrative leave without pay and
imposed no time limits at all, he concluded that “[b]ecause you have exhausted all
of your accrued [paid] leave and have failed to complete and turn in the necessary
paperwork to be placed on Family and Medical Leave, your absence is unapproved
and you are terminated effective immediately.” Although Assistant Chief Brown
had told Ms. Lewis one week earlier that she was not permitted to return to work,
Chief Odom characterized this as “a situation where an employee has just failed to
come to work.” Chief Odom acknowledged that he never advised Ms. Lewis that
she had to apply for 180 days of unpaid leave under the city’s administrative leave
policy, although she already had been placed on administrative leave, or warned
her that she had to file FMLA paperwork within a certain time frame to avoid
being terminated.
During the afternoon of July 8, after the termination letter already had been
sent, Dr. Harris spoke with Assistant Chief Brown. To Dr. Harris’s recollection,
this conversation was unpleasant and left her “quite offended” because she felt that
Assistant Chief Brown “questioned my professionalism and my professional
opinion.” Brown gave Dr. Harris the impression that he thought “Ms. Lewis was
influencing [Harris’s] decision to say that [Lewis] should not use the Taser or the
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pepper spray.” Dr. Harris made clear that her opinion was based solely on her
professional medical judgment and that she does not “do things because patients
tell me to do them.” In his deposition, Brown stated that he “would have had a
conversation with [Dr. Harris] about reasonable accommodations” if she had called
before July 8. But when the questioner pointed out to him that Dr. Harris had been
on vacation, Brown responded simply: “According to Jackie [Lewis].”
By way of summary, it bears pointing out some conclusions a jury
reasonably might draw from the preceding evidence. Given the nature of Ms.
Lewis’s interactions with the UCPD up through July 7, her termination on July 8 is
mysterious in an important respect. She had been placed on unpaid, indefinite
administrative leave on June 17, at which time she was given the option first to use
her accrued vacation and sick time so that she could continue receiving a salary
until that leave was exhausted. She never was given any deadlines, nor did any
appear in the written city policies, by which she had to obtain medical clearance,
file FMLA paperwork, or otherwise resolve the questions about whether she could
perform her job duties. She never was transferred from administrative leave to
another type of leave. Indeed, at oral argument, defendants conceded that Ms.
Lewis was on administrative leave at the moment she was fired—an involuntary,
unpaid leave initiated by a supervising officer. They conceded further that
inherent (though unarticulated) in the act of firing Ms. Lewis was the act of
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terminating her administrative leave. Otherwise, there is no plausible way to
justify the stated reason for her termination, which was that she was absent without
leave. Moreover, Assistant Chief Brown’s deposition response to the examiner’s
suggestion that Dr. Harris had been on vacation—“[a]ccording to Jackie”—might
be regarded by a jury as indicating a belief by Brown that Ms. Lewis had lied about
Dr. Harris’s being away in early July.
We make no findings of fact here, of course. We are obliged, however, to
view the evidence in the light most favorable to the non-moving party, Ms. Lewis,
and to draw all reasonable inferences in her favor. We therefore point out that a
jury in these circumstances reasonably could find that the stated reason for
terminating Ms. Lewis—that she was absent without leave—was a pretext for one
or more other motives. And there are several possible alternative motives for
which there is some evidentiary support. They include a belief that Ms. Lewis (1)
could not properly do her job in consequence of her heart condition, (2) had
procured unwarranted support from Dr. Harris in an effort to avoid the Taser test
while retaining her job, and (3) had lied about Dr. Harris’s unavailability until July
7. We discuss additional possibilities below.
G. Administrative Appeal
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Lewis appealed her termination to the Union City manager, Steve Rapson.
At that hearing, Ms. Lewis was represented by an attorney and given the
opportunity to present evidence. However, she did not present evidence regarding
whether she may have been entitled to 180 days of unpaid administrative leave or
to question whether she had fully exhausted her paid leave. Nor did Mr. Rapson or
anyone from the city undertake an independent investigation of that issue. Mr.
Rapson ultimately upheld Chief Odom’s decision to terminate Ms. Lewis.
II. PROCEEDINGS BELOW
Ms. Lewis filed suit in the Northern District of Georgia on November 19,
2012, alleging disability discrimination under the Americans with Disabilities Act
and race and gender discrimination under 42 U.S.C. § 1981 and Title VII.
Defendants moved for summary judgment dismissing all of Ms. Lewis’s
claims. In opposing the motion, Ms. Lewis pointed to two other Union City police
officers as comparators for how she was treated.
The first was Sergeant Cliff McClure, a white man, who was placed on
administrative leave after failing the balance portion of a physical fitness test on
April 22, 2014. He was given 90 days of leave to remedy the conditions that
caused him to fail the test and to retake it.
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The second comparator was Patrol Officer Walker Heard, a white man who
failed a physical fitness test. Heard was placed on leave without pay for 90 days,
offered a position as a dispatcher, and ultimately terminated by the department
after 449 days on administrative leave. The city notes that Heard filed an EEOC
charge against the city during the 90-day leave period and requested that he be
exempted from the physical fitness requirements.
On November 26, 2014, a magistrate judge issued a report and
recommendation that recommended granting the defendants’ motion for summary
judgment in its entirety on the bases that: (1) on her ADA claim, Ms. Lewis had
failed to demonstrate a genuine issue of fact that she was a “qualified individual,”
thus failing to make out one of the three elements of her prima facie case, and (2)
on her race and gender claims, Ms. Lewis’s purported white male comparators
were not “similarly situated” because they had failed physical fitness tests, not
weapons certification tests, and because Ms. Lewis’s lead physician had expressed
concern about her proximity to Tasers and OC spray. The district court adopted
the R&R on March 17, 2015, accepting in all relevant respects the magistrate’s
reasoning and conclusions. Ms. Lewis appeals from that order and from the
judgment entered upon it.
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III. DISCUSSION
A. Standard of Review
“We review the district court’s grant of summary judgment de novo, viewing
all evidence and drawing all reasonable factual inferences in favor of the
nonmoving party.” Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th
Cir. 2012). Summary judgment is appropriate if the movant shows that “there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” FED. R. CIV. P. 56(a); Strickland, 692 F.3d at 1154. The court
must draw all reasonable inferences in favor of the nonmovant and may not weigh
evidence or make credibility determinations, which “‘are jury functions, not those
of a judge.’” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir.
2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).
B. The Disability Discrimination Claim
Under the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §
12112(a), it is unlawful for an employer to “discriminate against a qualified
individual on the basis of disability in regard to . . . discharge of employees, . . .
and other terms, conditions, and privileges of employment.” To establish a prima
facie case for disability discrimination, a plaintiff must produce sufficient evidence
to permit a jury to find that she: (1) is disabled, (2) is a qualified individual, and (3)
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was discriminated against because of her disability. Mazzeo v. Color Resolutions
Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014) (citing Holly v. Clairson Indus.,
L.L.C., 492 F.3d 1247, 1255-56 (11th Cir. 2007)). “The ADA defines the term
‘disability’ as (1) a physical or mental impairment that ‘substantially limits one or
more’ of an individual’s ‘major life activities,’ (2) a ‘record of such an
impairment,’ or (3) ‘being regarded as having such an impairment’ as described in
subsection (1).” Mazzeo, 746 F.3d at 1268 (quoting 42 U.S.C. § 12102(1)).
1. Ms. Lewis’s Evidence Is Insufficient to Meet Her Prima Facie
Burden that She Was Actually Disabled, But Is Sufficient on
Whether She Was Regarded as Disabled.
Ms. Lewis argues that she meets the definition of “disabled” under both the
“actually disabled” and the “regarded as disabled” prongs. The district court,
adopting the R&R, held that Ms. Lewis’s evidence had sufficiently demonstrated,
for the purpose of her prima facie case, that she had a physical impairment, but that
she had not produced evidence sufficient to demonstrate that the impairment
substantially limited any major life activity. It therefore held that there was no
basis for a disability discrimination claim based on a theory that she was actually
disabled. But the district court agreed also with the magistrate judge’s report and
recommendation that there was sufficient evidence to raise a genuine issue of fact
on the question of whether Ms. Lewis was “regarded as” disabled.
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a. The court below correctly concluded that Ms. Lewis did not
produce sufficient evidence to permit a conclusion that she
is actually disabled.
Ms. Lewis contends that she is disabled because her heart attack left her with
a “permanent injury to her heart and [she] continues to suffer regurgitation of the
mitral tricuspid, and aortic heart valves.” The district court rejected this argument,
holding that she may have produced sufficient evidence of a physical impairment
but she failed to adduce sufficient evidence that that impairment substantially
limited any major life activity. Ms. Lewis here challenges this conclusion,
contending that her heart condition substantially limits her ability to sleep and
breathe.
An individual who is “actually disabled” is one with “a physical or mental
impairment that substantially limits one or more major life activities.” 42 U.S.C. §
12102(1)(A). Major life activities “include, but are not limited to, caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking,
standing, lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” Id. § 12102(2)(A).
Congress amended the ADA by enacting the ADA Amendments Act of 2008
(the “ADAAA”) with the goal of broadening the interpretation of a disability under
the ADA. It sought to “convey that the question of whether an individual’s
impairment is a disability under the ADA should not demand extensive analysis.”
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Mazzeo, 746 F.3d at 1268 (quoting 42 U.S.C. § 12101 Note). It was concerned
also that “the Supreme Court’s interpretation of the phrase ‘substantially limits’ . . .
had ‘created an inappropriately high level of limitation necessary to obtain
coverage under the ADA.’” Mazzeo, 746 F.3d at 1269 (quoting 42 U.S.C. § 12101
Note). In consequence, Congress added a rule of construction to the definition of
disability, instructing that “[a]n impairment that is episodic or in remission is a
disability if it would substantially limit a major life activity when active.” 42
U.S.C. § 12102(4)(D).
We accept arguendo that Ms. Lewis’s evidence is sufficient to permit a fact
finder to conclude that her heart is physically impaired. See, e.g., Silk v. Bd. of
Trustees, Moraine Valley Cmty. Coll., Dist. No. 524, 795 F.3d 698, 706 (7th Cir.
2015). Nevertheless, there remains the question whether the evidence is sufficient
to permit a conclusion that the impairment substantially limits a major life activity.
Ms. Lewis argues that her paroxysmal nocturnal dyspnea substantially limits
the major life activities of breathing and sleeping. The only such evidence in the
record, however, is plaintiff’s own testimony that she has “periodic . . . shortness
of breath,” and Dr. Harris’s testimony that this could—but, notably, not that it
did—affect Ms. Lewis’s ability to sleep. Without minimizing any discomfort these
episodes may cause Ms. Lewis, the record here is devoid of evidence of the
severity, frequency, and duration of these episodes. Nor is there any evidence of
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the extent to which they limit Ms. Lewis’s ability to sleep or that could lead a
reasonable jury to conclude that Lewis is substantially limited in a major life
activity. Compare Mazzeo, 746 F.3d at 1269 (finding sufficient evidence of an
actual disability where record included affidavit from plaintiff’s doctor detailing
both the “specific pain the condition caused, and the limitations on major life
activities” (quotations omitted)), with Holton v. First Coast Serv. Options, Inc.,
No. 16-15289, 2017 WL 3446880, at *3 (11th Cir. Aug. 11, 2017) (distinguishing
Mazzeo where plaintiff’s chiropractor “included nothing to link her back
impairment to the limitations on her major life activities that she alleged”), and
Vaughan v. World Changers Church Int’l, Inc., No. 1:13-CV-0746-AT, 2014 WL
4978439, at *9 (N.D. Ga. Sept. 16, 2014) (distinguishing Mazzeo where plaintiff’s
“treating physician did not, even in a conclusory fashion, state that the effects of
this pain on her major life activities . . . were at all substantial, or at least
substantial as compared to most people in the population” and “was unable to
assess how episodic Vaughan’s pain would be”). Accordingly, we agree with the
district court that Ms. Lewis did not produce evidence sufficient to raise a genuine
issue of fact that she is actually disabled.
b. Ms. Lewis has produced evidence sufficient to raise a
genuine issue of fact on whether she was “regarded as”
disabled.
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Ms. Lewis contends also that she is “disabled” under the “regarded as”
definition regardless of whether she is actually disabled. The district court agreed,
holding that she had produced evidence sufficient to permit findings that the
UCPD regarded her heart condition as a physical impairment and took adverse
action—placing her on leave—because of the impairment.
The ADA provides that an individual is “regarded as” disabled if she
“establishes that . . . she has been subjected to an action prohibited under this
chapter because of an actual or perceived physical or mental impairment whether
or not the impairment limits or is perceived to limit a major life activity.” 42
U.S.C. § 12102(3)(A).
As the district court held, there was ample evidence here to raise a genuine
issue of fact as to whether the UCPD regarded Ms. Lewis as disabled. Chief Odom
himself was a witness to Ms. Lewis’s heart attack. In his June 17 letter putting Ms.
Lewis on leave, Assistant Chief Brown referred to her chronic conditions and
instructed her to complete FMLA paperwork, suggesting that he believed Ms.
Lewis had a medical condition warranting medical leave. Next, Assistant Chief
Brown’s July 1 letter forbade Ms. Lewis from returning to work until “everything
is cleared up with your doctor,” said that “your doctor’s letter essentially makes it
impossible for you to work or be at work,” and concluded that Ms. Lewis could not
return “until your doctor releases you for duty.” Assistant Chief Brown’s July 6
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email again referred to the possibility of Ms. Lewis taking leave under FMLA.
Indeed, the department’s own stated reason for putting Lewis on leave—that it
feared for her safety in view of her heart condition—demonstrates the department’s
belief that Ms. Lewis’s medical condition set her apart from other police officers.
Defendants nevertheless argue that they did not regard Ms. Lewis as
disabled and that they did not put her on administrative leave because of her actual
or perceived heart condition. Rather, they assert, they construed Dr. Harris’s letter
recommending that Ms. Lewis not be exposed to OC spray or a Taser shock as
meaning that Ms. Lewis would be in danger by virtue of her “mere presence at
work.” But that argument does not carry the day for at least two reasons.
First, even if we were to assume that the UCPD’s argument, if accepted,
somehow could divorce its placement of Ms. Lewis on administrative leave and
her subsequent termination from any perception or belief that Ms. Lewis suffered
from a physical impairment—and it is difficult to credit any such assumption—it
could do no more than raise an issue of fact. A jury would be entitled to accept
Ms. Lewis’s evidence, already detailed, and to conclude that the UCPD put her on
leave and fired her because it regarded her as disabled.
Second, the defendants’ argument is nearly identical to one rejected by the
interpretive guidance that accompanies the regulations under the ADA. That
guidance gives the following example: “an employer who terminates an employee
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with angina from a manufacturing job that requires the employee to work around
machinery, believing that the employee will pose a safety risk to himself or others
if he were suddenly to lose consciousness, has regarded the individual as disabled.”
29 C.F.R. § Pt. 1630, App. The guidance explains further that “[w]hether the
employer has a defense (e.g., that the employee posed a direct threat to himself or
coworkers) is a separate inquiry.” Id. While not binding, the guidance illustrates
the common sense principle that an employer that takes an adverse action because
it fears the consequences of an employee’s medical condition has regarded that
employee as disabled.
In the last analysis, then, a jury would be entitled to find that the department
placed Ms. Lewis on administrative leave and fired her because it regarded her as
disabled. We therefore agree with the district court that Ms. Lewis has
produced evidence sufficient to meet her prima facie burden on this element.
2. The District Court Erred in Holding that Ms. Lewis Failed to
Produce Sufficient Evidence that She was a Qualified Individual.
Having concluded that Ms. Lewis met the first element of her prima facie
case of disability discrimination on the “regarded as” theory, we turn to the second
element, viz., whether there was evidence sufficient to conclude that she was a
“qualified individual.”
The ADA defines a qualified individual as one who, “with or without
reasonable accommodation, can perform the essential functions of the employment
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position that such individual holds or desires.” 42 U.S.C. § 12111(8). The district
court held that Ms. Lewis was not a qualified individual. It did so by adopting the
UCPD’s position that she could not perform the essential functions of a Union City
detective, which, it held, included being exposed to OC spray and a Taser shock.
In adopting the UCPD’s contention, however, the district court made a factual
determination that was inappropriate on summary judgment.
“‘Whether a function is essential is evaluated on a case-by-case basis by
examining a number of factors.’” D’Angelo v. ConAgra Foods, Inc., 422 F.3d
1220, 1230 (11th Cir. 2005) (quoting Davis v. Fla. Power & Light Co., 205 F.3d
1301, 1305 (11th Cir. 2000)). Courts consider the employer’s judgment of whether
a particular function is essential, id., and may choose to accord additional weight to
such a judgment when the employer is a police department, cf. Ethridge v. State of
Alabama, 860 F. Supp. 808, 816 (M.D. Ala. 1994). But courts must consider also:
“any written job description prepared before advertising or interviewing
applicants for the job; the amount of time spent on the job performing the
function; the consequences of not requiring the employee to perform the
function; the terms of any collective bargaining agreement; the work
experience of past employees in the job; and the current work experience of
employees in similar jobs.”
Samson v. Fed. Exp. Corp., 746 F.3d 1196, 1201 (11th Cir. 2014) (citing 29 C.F.R.
§ 1630.2(n)(3)(ii)-(vii)). Accordingly, “[a]lthough the employer’s judgment is
‘entitled to substantial weight in the calculus,’ this factor alone is not conclusive.”
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Id. (quoting Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1285 (11th Cir.
2007)).
In this case, there is significant evidence that cuts against Union City’s
contention that exposure to OC spray and Taser shocks are essential functions of
the job of police detective. The city’s written job description for the position of
detective nowhere mentions that it is necessary for a detective either to carry or to
be exposed to OC spray or a Taser shock. Indeed, there is no such mention in an
entire paragraph listing various “physical demands” of the job. The “work
environment” section states that a detective “[m]ust be willing to carry a firearm on
and off the job [and be] mentally and physically capable of using deadly force, if
justified,” but contains no reference to OC spray or Tasers. Further, Ms. Lewis
offered evidence that detectives previously were permitted a choice of what
nonlethal weapon or weapons to carry. Moreover, neither party disputes the fact
that Taser International does not require trainees to receive a shock in order to
become certified in Taser use.
In these circumstances, a jury would be justified in concluding that receiving
a Taser shock was not an essential function of Ms. Lewis’s job, in which case it
would follow that she was a “qualified individual.”
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3. Ms. Lewis Met her Prima Facie Burden of Demonstrating that the
City Discriminated Against Her Because of Her Perceived
Disability.
We turn next to the third element of the prima facie case, which requires
evidence sufficient to permit the fact finder to conclude that the employee was
discriminated against “because of” her disability.4
As was demonstrated in the analysis of the first prima facie element, built in
to the “regarded as” definition of disabled is an analysis of whether the employer
subjected the employee “to an action prohibited under this chapter because of an
actual or perceived physical or mental impairment.” 42 U.S.C. § 12102(3)(A).
The evidence tending to prove the “regarded as” definition of disabled therefore
4
In cases where the employee meets either the first or second definitions of “disabled” (that is,
that employee shows that he or she is actually disabled or has a history of being actually
disabled) on the first prima facie element, that employee may meet his or her prima facie burden
on this third element by showing that the employer does not make reasonable accommodations
for the disability. Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017) (“An
employer unlawfully discriminates against an otherwise qualified person with a disability when it
fails to provide a reasonable accommodation for the disability, unless doing so would impose an
undue hardship on the employer.”); Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016)
(framing issue on appeal as “whether Defendant discriminated against Plaintiff by failing to
provide a reasonable accommodation that would have enabled her to perform either her CSO
duties or the essential duties”); Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262 (11th Cir.
2007) (“[A]n employer’s failure to reasonably accommodate a disabled individual itself
constitutes discrimination under the ADA, so long as that individual is ‘otherwise qualified,’ and
unless the employer can show undue hardship.”); see also 42 U.S.C. § 12112(b)(5)(A). In other
words, an employer’s failure to provide a reasonable accommodation may be evidence that that
employer has discriminated against her “because of” her disability.
Ms. Lewis contended that the UCPD’s failure to put her in an administrative role constituted a
failure to provide a reasonable accommodation and thus was evidence of discrimination. Given
our conclusion that Ms. Lewis has not put forth evidence sufficient to warrant a finding that she
is actually disabled, however, we need not address this argument because an employer “is not
required to provide a reasonable accommodation to an individual who meets the definition of
disability solely under the ‘regarded as’ prong.” 29 C.F.R. § 1630.9(e).
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often is duplicative of the evidence relevant to the third prima facie element. See
29 C.F.R. § Pt. 1630, App. (“While a person must show, for both coverage under
the ‘regarded as’ prong and for ultimate liability, that he or she was subjected to a
prohibited action because of an actual or perceived impairment, this showing need
only be made once.”).5 Because we hold Ms. Lewis’s evidence sufficient to meet
her prima facie burden on the first element, we therefore hold also that her
evidence is sufficient on this element of her prima facie case for the same reasons
detailed supra section II.A.2.
4. Plaintiff Has Produced Sufficient Evidence that She is Not a Direct
Threat.
The magistrate judge held in a footnote that the city would be entitled to
summary judgment under the “direct threat” defense even if Ms. Lewis established
her prima facie case. See 42 U.S.C. § 12113. Specifically, he reasoned that Dr.
Harris’s letter recommending that Ms. Lewis not be exposed to OC spray or a
Taser shock meant that Ms. Lewis’s “presence near the use of OC spray and Tasers
while in the workplace posed a significant risk of harm to her health.” Ms. Lewis
5
Defendants state that the district court did not reach the third element of the prima facie case—
whether Ms. Lewis was discriminated against because of a disability. The district court,
however, did find that there was sufficient evidence that Ms. Lewis was regarded as disabled.
Because, as discussed above, the evidence of the third prima facie element is duplicative of the
evidence needed to show that Lewis was regarded as disabled, the district court did, in fact,
resolve this question in Ms. Lewis’s favor.
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argues on appeal that she poses no direct threat to herself or others and that the
court below failed to conduct the requisite individualized assessment.
“Direct Threat means a significant risk of substantial harm to the health or
safety of the individual or others that cannot be eliminated or reduced by
reasonable accommodation.” 29 C.F.R. § 1630.2(r). Moreover, the “direct threat”
defense:
“must be ‘based on a reasonable medical judgment that relies on the most
current medical knowledge and/or the best available objective evidence,’
and upon an expressly ‘individualized assessment of the individual’s present
ability to safely perform the essential functions of the job,’ reached after
considering, among other things, the imminence of the risk and the severity
of the harm portended.”
Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 86 (2002) (quoting 29 C.F.R. §
1630.2(r)).
Here, we disagree with the district court for one simple reason. The
definition of the direct threat defense requires an analysis of the individual’s ability
to perform safely the “essential functions of the job.” 29 C.F.R. § 1630.2(r). As
we have held that there is a genuine dispute of material fact on what the essential
functions of a UCPD detective are, we certainly cannot resolve the question of
whether she can perform those as-yet-undefined essential functions safely.
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C. Race and Gender Discrimination Claims
Ms. Lewis alleges also sex and race discrimination under Title VII, the
Equal Protection Clause, and 42 U.S.C. § 1981.6 The legal elements under any of
these frameworks are identical. “To make out a prima facie case of racial
discrimination a plaintiff must show (1) she belongs to a protected class; (2) she
was qualified to do the job; (3) she was subjected to adverse employment action;
and (4) her employer treated similarly situated employees outside her class more
favorably.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008); see also
Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985) (“Where, as here, a
plaintiff predicates liability under Title VII on disparate treatment and also claims
liability under sections 1981 and 1983, the legal elements of the claims are
identical.”).
1. Similarly Situated Comparators
Defendants concede for purposes of this appeal that Ms. Lewis made out the
first three elements of a prima facie case. They dispute only the fourth element of
the prima facie case, viz., whether other similarly situated employees were treated
more favorably.7
6
The Equal Protection and § 1981 claims are brought pursuant to 42 U.S.C. § 1983.
7
In proceedings before the district court, Union City disputed the second element also.
However, the district court noted correctly that the city had overlooked the distinction between
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“To be an adequate comparator, the preferentially treated individual from
outside the plaintiff’s protected class has to be similarly situated to the plaintiff in
all relevant respects.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 n.17
(11th Cir. 2011) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)).
Ms. Lewis’s two proposed comparators are Sergeant McClure and Officer
Heard, both white men. They, like Ms. Lewis, were unable to meet UCPD-
imposed physical requirements—Sergeant McClure failed a balance test and
Officer Heard failed an agility test. Both, like Ms. Lewis, were placed on
administrative leave to give them time to resolve these physical limitations and
meet the department’s requirements. Yet McClure was allowed 90 days of
administrative leave and Heard 449—both significantly longer than Ms. Lewis’s
22 days.
The magistrate judge held that McClure and Heard were not appropriate
comparators for two principal reasons. He held that one key dissimilarity was that
Ms. Lewis, “pursuant to her physician’s recommendations, could not work with
other officers who carried OC spray and Tasers without serious risk of harm.”
This distinction is not so indisputably well founded, however, as to warrant the
“qualified individual” in the disability discrimination versus race/gender discrimination contexts.
In the race/gender discrimination, “in cases where a plaintiff has held a position for a significant
period of time, qualification for that position sufficient to satisfy the test of a prima facie case
can be inferred.” Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1495 n.2 (11th
Cir. 1987). Appellants appear to have conceded this point on appeal.
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rejection of the comparators as a matter of law on a summary judgment motion,
even if it might prove persuasive at trial. Dr. Harris’s letter to the UCPD made no
mention of Ms. Lewis being at risk from her mere presence around other officers
carrying those weapons.8 And her deposition testimony, even if it properly were
read as supporting a view that Ms. Lewis would be at risk from accidental
exposure,9 is entirely irrelevant here for the simple reason that the deposition took
place long after Ms. Lewis was terminated. It thus could have played no role in
defendants’ decision to put her on leave and terminate her.
The magistrate judge held also—and defendants rely heavily on this
distinction in this Court—that Heard and McClure were not appropriate
comparators because they failed physical fitness tests, not weapons certification
tests. The magistrate reasoned that “[a]n officer’s exposure to a Taser shock and
OC spray was required by Union City to obtain the necessary certifications, and
8
Defendants assert that the language in Dr. Harris’s letter that states Ms. Lewis “should not have
a Taser used on her secondary to previous cardiac history” supported a conclusion that Ms.
Lewis was at risk from accidental exposure. The letter, however, is entirely silent with respect to
accidental exposure. It was directed solely at the issue of whether Ms. Lewis should participate
in Taser and OC spray training, urging the department to take Dr. Harris’s recommendation “into
consideration when making any decisions about occupational training.” A jury might find at trial
that the UCPD reasonably interpreted Dr. Harris’s letter to imply that Ms. Lewis would be in
danger from accidental exposure, but such a factual conclusion is not permissible on summary
judgment.
9
Specifically, Dr. Harris was asked whether there would be any risk to Ms. Lewis if a Taser was
used near, but not on, her. Dr. Harris answered, “I don’t think so.” Dr. Harris did answer “yes”
when asked further whether “if there was some electrical current residual even, would your
recommendation also be that she not use it as well?” This bare testimony, however, cannot
support a conclusion on summary judgment that Ms. Lewis was in danger from an accidental
discharge.
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Plaintiff did not become certified to carry these weapons. In contrast, there is no
evidence . . . that McClure and Heard were not certified to carry a Taser, OC spray,
or any other weapon.” Defendants argue also that the fitness policy was instituted
after Ms. Lewis’s termination and thus cannot properly be compared to the policy
under which Ms. Lewis was put on leave.
This reasoning misses the mark. The test for whether comparators are
appropriately considered is whether they are similarly situated in all relevant
respects. The focus on the receipt or non-receipt of the Taser and OC certifications
per se was inappropriate. It fails to recognize that a jury would have been entitled
to conclude that the certifications are not what was important. The certifications
simply would have been evidence that Ms. Lewis was physically able safely to
carry and use a Taser or pepper spray. Carrying and using those implements were
physical requirements that the UCPD claims were essential functions of her job—
just as proper balance and sufficient agility were physical requirements that the
UCPD regarded as essential functions of the jobs of McClure and Heard. In other
words, the evidence was sufficient to permit the conclusions that (1) three
officers—two white men and one African-American woman—each were required
to possess a physical ability said to be essential to the performance of his or her
job, (2) each either failed a test as to whether the officer possessed the respective
physical ability or failed to provide a certificate evidencing the possession of the
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relevant physical ability, and (3) the two white men then were treated far more
favorably than this African-American woman in that both white men were given
extended periods of time to attempt to demonstrate the physical ability but the
African-American woman was fired without warning. Even assuming that the
physical fitness requirements that the two white men failed were in a fitness policy,
as to which the evidence below at best raised an issue of fact,10 and the Taser-OC
requirement was in another piece of paper or departmental policy, that would be
entirely immaterial.
In this Court, defendants argue also that Officer Heard is not an appropriate
comparator because, unlike Ms. Lewis, he filed an EEOC charge during his 90-day
administrative leave period. But this is unpersuasive. Officer Heard failed his
physical fitness test on or around February 14, 2013. But he did not file his EEOC
charge until the very end of the 90-day leave period. The UCPD was not advised
until May 24, 2013, that he had filed an EEOC charge. Thus, Officer Heard had
10
Defendants rely solely on the supplemental declaration of Chief Odom, which purports to
attach a copy of the physical fitness policy. In fact, however, the only exhibit attached to that
declaration is the department’s 2010 Taser standard operating procedure. Thus, defendants’
attempt to differentiate this alleged fitness policy—and indeed, defendants’ attempt to prove its
existence at all—from the policy that applied to Ms. Lewis is based solely on Chief Odom’s
assertion. But Officer Heard’s declaration makes no mention of a physical fitness policy.
Sergeant McClure testified that his leave was pursuant to an “administrative action,” not a “leave
of absence,” based on some unspecified “police SOP,” but offered no more than that. And
Tracie McCord testified that she was not sure what leave policy applied to McClure, but when
asked whether it was the same as that applied to Ms. Lewis, answered “I would assume so.” The
Court therefore cannot conclude from this record as a matter of law even that the alleged fitness
policy existed, much less that it was the basis of the action with respect to McClure and Heard.
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been accorded over two months more leave than Ms. Lewis was even before he
took legal action.
We acknowledge that the question whether Ms. Lewis has adduced
sufficient evidence to demonstrate that Officer Heard and Sergeant McClure are
similarly situated comparators is a close call. Much depends, of course, on the
definition of what characteristics are “relevant.” Compare Holifield v. Reno, 115
F.3d 1555, 1563 (11th Cir. 1997) (proposed comparator who had similar
complaints against him but who, unlike plaintiff, had maintained full workload not
similarly situated), with Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir.
2000) (jury question whether violation of company policy for alcohol was similar
to violation for absenteeism), and Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 262
(5th Cir. 2009) (railroad employees similarly situated who had “compiled a similar
number of serious moving violations over a similar period of time,” and noting that
distinctions put forward by railroad “might very well prove to be relevant” to
whether railroad had legitimate, nondiscriminatory reason for differing treatment,
but did not defeat prima facie case). We conclude, however, that there was a
genuine issue of material fact as to whether Heard and/or McClure are appropriate
comparators.11 But we do not rely on this alone, as pointing to similarly situated
11
This Circuit often has applied or referred to a “nearly identical” standard to determine whether
proposed comparators are similarly situated. See, e.g., Flowers v. Troup Cty., Ga., Sch. Dist.,
803 F.3d 1327, 1340 (11th Cir. 2015). In the majority of those cases, however, this standard was
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comparators is but one way of raising an inference of discrimination. Regardless
of whether McClure and Heard correctly were ruled out as appropriate comparators
applied to answer the narrow question of whether workplace misconduct by proposed
comparators of different races or genders, but for which they were treated more leniently than a
plaintiff, was sufficiently similar to the plaintiff’s misconduct to give rise to an inference of
discrimination. E.g., id. (“In order to use comparators to support an inference of race
discrimination in the context of workplace discipline, a plaintiff must show that the comparators’
alleged misconduct is nearly identical to the plaintiff’s in order to prevent courts from second-
guessing employers’ reasonable decisions and confusing apples with oranges.” (quotations
omitted)); see also Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1341 n.73 (11th Cir. 2011);
McCann v. Tillman, 526 F.3d 1370, 1374 (11th Cir. 2008); Rioux v. City of Atlanta, Ga., 520
F.3d 1269, 1280 (11th Cir. 2008); Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th
Cir. 2006); Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001); Maniccia v.
Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); Jones v. Gerwens, 874 F.2d 1534, 1537 (11th Cir.
1989); Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1185 (11th Cir. 1984). One case
cited the language, but did not employ it because the plaintiff offered no evidence of comparators
whatsoever. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091-92 (11th Cir. 2004). Other
cases questioned whether “nearly identical” was too rigid a test for whether proposed
comparators’ misconduct was sufficiently similar to the plaintiffs’. Knight v. Baptist Hosp. of
Miami, Inc., 330 F.3d 1313, 1316 n.2 (11th Cir. 2003); Maynard v. Bd. of Regents of Div. of
Univs. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1290 (11th Cir. 2003);
Anderson v. WBMG-42, 253 F.3d 561, 565 (11th Cir. 2001); Alexander v. Fulton Cty., Ga., 207
F.3d 1303, 1334 (11th Cir. 2000), overruled on other grounds by Manders v. Lee, 338 F.3d 1304
(11th Cir. 2003).
Two recent cases that did not involve disparate treatment of workplace misconduct have used the
“nearly identical” standard. See Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d 1179, 1192
(11th Cir. 2016); Slater v. U.S. Steel Corp., 820 F.3d 1193, 1196 n.3 (11th Cir. 2016), vacated on
other grounds to be reheard en banc. But a review of those decisions and the parties’ briefs
reveals that the issue whether the “nearly identical” standard should apply beyond the realm of
workplace misconduct was not litigated. Accordingly, the references in those cases to the
“nearly identical” standard, to any extent the cases went beyond disparate treatment for
workplace misconduct, “were mere dicta.” See In re MDL–1824 Tri–State Water Rights Litig.,
644 F.3d 1160, 1189 n. 21 (11th Cir. 2011). Thus, the “nearly identical” test was tailored
specifically to determine whether the misconduct committed by proposed comparators were
sufficiently comparable to those committed by plaintiffs in discrimination cases. E.g., Maniccia,
171 F.3d at 1368 (“We require that the quantity and quality of the comparator’s misconduct be
nearly identical . . . .”). Accordingly, the “nearly identical” test does not apply in this case. As
noted, however, the result here does not depend on this conclusion.
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as a matter of law, we hold that Ms. Lewis has adduced evidence sufficient to
survive summary judgment on an additional basis.
2. Mosaic of Circumstantial Evidence
“[E]stablishing the elements of the McDonnell Douglas framework is not,
and never was intended to be, the sine qua non for a plaintiff to survive a summary
judgment motion in an employment discrimination case. Accordingly, the
plaintiff’s failure to produce a comparator does not necessarily doom the plaintiff’s
case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
Even without similarly situated comparators, “the plaintiff will always survive
summary judgment if he [or she] presents circumstantial evidence that creates a
triable issue concerning the employer’s discriminatory intent.” Id.
This, of course, is perfectly logical. Not every employee subjected to
unlawful discrimination will be able to produce a similarly situated comparator.
Among other things, a proper comparator simply may not exist in every work
place. Accordingly, a “plaintiff will always survive summary judgment if he
presents . . . ‘a convincing mosaic of circumstantial evidence that would allow a
jury to infer intentional discrimination.’” Id. (quoting Silverman v. Bd. of Educ. of
City of Chi., 637 F.3d 729, 734 (7th Cir. 2011), overruled by Ortiz v. Werner
Enters., Inc., 834 F.3d 760 (7th Cir. 2016) (footnote omitted)). A “convincing
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mosaic” may be shown by evidence that demonstrates, among other things, (1)
“suspicious timing, ambiguous statements . . . , and other bits and pieces from
which an inference of discriminatory intent might be drawn,” (2) systematically
better treatment of similarly situated employees, and (3) that the employer’s
justification is pretextual. Silverman, 637 F.3d at 733-34 (quotations omitted).
Here, Ms. Lewis has presented a mosaic of circumstantial evidence that
raises a genuine issue of material fact.
As an initial matter, Ms. Lewis has presented evidence from which a jury
would be entitled to conclude that the city’s actions in regards to Ms. Lewis were
extraordinarily arbitrary in at least three ways. First, the UCPD initiated Ms.
Lewis’s indefinite administrative leave on June 17 and informed her on July 1 that
she would not be permitted to return to work until she was medically cleared. Yet
a week later, and despite Ms. Lewis’s request to return to work and Chief Brown’s
explicit denial of that request, the UCPD terminated her for being absent without
leave. Second, the UCPD gave no warning that if Ms. Lewis exercised the option
to use her accrued leave in lieu of being on unpaid status, she would be terminated
upon exhausting her accrued leave instead of simply reverting to unpaid
administrative leave status. Third, the UCPD gave Ms. Lewis no notice that she
had to file FMLA paperwork by any specific date, nor did the department’s written
FMLA policy provide any such deadline. She informed the department on two
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occasions that her doctor was on vacation until July 7, but that she had an
appointment scheduled for that day. At no time was she told that she would be
terminated if her doctor failed to contact the department on the very first day she
returned from vacation. From all this evidence, a jury could conclude that the
UCPD was searching for a policy to fit its desire to terminate Ms. Lewis rather
than neutrally enforcing an existing policy.
There is evidence also that suggests that the department believed either that
Lewis was faking her medical condition or that her condition was not sufficiently
serious to prevent her from working as a detective. The initial letter placing Ms.
Lewis on leave went to great lengths to stress that she had been cleared for full
duty without restrictions after her heart attack and to emphasize that the letter
disclosing her chronic conditions came as a surprise. Chief Odom testified that he
was caught off guard by Dr. Harris’s June 17 letter. And Dr. Harris testified also
that Assistant Chief Brown made clear to her in the July 8 telephone conversation
that he thought Dr. Harris’s letter was more a product of Ms. Lewis’s influence
than Dr. Harris’s unbiased medical judgment. In fact, in his deposition, Assistant
Chief Brown evidenced his disbelief of Ms. Lewis’s assertion that Dr. Harris was
on vacation for the week leading up to her termination suggesting that he doubted
her truthfulness more generally. At the same time, however, at least two of Chief
Brown’s letters indicated a belief that Ms. Lewis’s doctor ultimately would clear
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her for duty and that the medical condition would not, in the department’s view,
permanently prevent Ms. Lewis from doing her job as a detective. This
inconsistency in the department’s view of the nature and severity of Ms. Lewis’s
condition could be interpreted as evidence that the medical condition was a pretext
for Ms. Lewis’s termination.
Lastly, even if Officer Heard and Sergeant McClure do not meet the strict
definition of similarly situated comparators, the evidence of their treatment in the
face of physical limitations on their ability to perform as police officers is not
irrelevant. To the contrary, a jury reasonably could interpret the evidence of their
significantly more lenient treatment—particularly the 449 days accorded to
Heard—as circumstantial evidence that the UCPD treats white men more favorably
than black women.
Of course, there are many conclusions a jury could reach based on the
evidence presented, not all of which would support a finding of discrimination.
We conclude, however, that the differing treatment of Ms. Lewis’s white
colleagues, in combination with the rest of the evidence, is part of a mosaic of
circumstantial evidence sufficient to create a triable issue of material fact on
whether the UCPD’s actions were discriminatory on the basis of race and/or
gender.
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D. Municipal Liability Under Section 1983
Ms. Lewis argues that Union City is liable under section 1981 for Odom’s
discriminatory actions because Odom was the final decision-maker.12
A municipality may not be held liable for the torts of its employees on a
respondeat superior theory. Morro v. City of Birmingham, 117 F.3d 508, 514
(11th Cir. 1997) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978)).
“Instead, municipalities may only be held liable for the execution of a
governmental policy or custom.” Id. The Supreme Court has clarified that
“‘municipal liability may be imposed for a single decision by municipal
policymakers under appropriate circumstances.’” Id. (quoting Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986)). However, we have repeatedly recognized
that “a municipal official does not have final policymaking authority over a
particular subject matter when that official’s decisions are subject to meaningful
administrative review.” Id.
Where review of a municipal official’s employment decision does exist, a
plaintiff can attempt to show that the review was not meaningful, but rather
“‘serve[s] as the conduit of the subordinate’s improper motive’” by “‘rubber-
stamp[ing] the recommendation of a subordinate.’” Quinn v. Monroe Cty., 330
12
This theory of municipal liability applies only to the claims under § 1983, not those under Title
VII. As this court has recognized, “the proper method for a plaintiff to recover under Title VII is
by suing the employer, either by naming the supervisory employees as agents of the employer or
by naming the employer directly,” Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991),
as Ms. Lewis has done here.
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F.3d 1320, 1326 (11th Cir. 2003) (quoting Hitt v. Connell, 301 F.3d 240, 248 (5th
Cir. 2002)); see also Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir.
1997)). However, where there is an opportunity for the plaintiff to appeal an
official’s decision to a reviewing board, such review is generally sufficient to find
that the official was not the final policymaker. See Scala, 116 F.3d at 1403
(finding meaningful review where “there is no evidence . . . that the Board’s
decision approved any improper motive that Barrett or Younger may have had”);
Quinn, 330 F.3d at 1326 (finding meaningful review where “the Council afforded
her a full adversarial and evidentiary hearing” and both parties were represented by
counsel); see also Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1293
(11th Cir. 2004) (finding no meaningful review despite “appellate process that was
theoretically available on paper” because plaintiff “as a practical matter [could not]
take advantage of it”).
Ms. Lewis argues that Chief Odom should be considered the final
policymaker because the review of the termination decision by Steve Rapson, city
manager, was not meaningful. She argues that Mr. Rapson failed to investigate
properly whether Lewis still had any unused sick or vacation leave at the time she
was terminated and that no evidence was presented to Mr. Rapson about Ms.
Lewis’s ability to be exposed to OC spray. Whether a fuller investigation by Mr.
Rapson would have been proper or desirable is immaterial, however. There is no
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requirement that the administrative review be ideal, simply that it be a meaningful
layer of review of an official’s decision. Mr. Rapson conducted a hearing and
heard from Ms. Lewis, who was represented by counsel in the proceeding. Ms.
Lewis has not offered any facts to suggest that Mr. Rapson was a mere rubber
stamp or that he approved any improper motive.
IV. CONCLUSION
In the last analysis, the evidence before the district court properly might
have yielded any of a number of conclusions. Perhaps Ms. Lewis was terminated
simply because the UCPD regarded her as disabled, thus violating the ADA.
Perhaps she was terminated because it concluded, rightly or wrongly, that Ms.
Lewis was shirking to avoid the Taser shock and had enlisted her doctor to provide
unwarranted support in attaining that goal. Perhaps her fate—which a jury might
find was the result of disparate application of Union City’s leave policies as
between Ms. Lewis and white male officers who were sufficiently comparable to
Ms. Lewis in all material respects save race and gender—was a product of, or
influenced by, race and/or gender. Perhaps her termination was the product of an
amalgam of such considerations. At bottom, however, the ultimate decision in this
case is for a properly instructed jury that has seen the witnesses and heard all of the
evidence.
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The judgment appealed from is AFFIRMED to the extent it dismissed the
Section 1981 and Equal Protection claims against the City of Union City and
against Chief Odom,13 REVERSED in all other respects, and REMANDED for
further proceedings consistent with this opinion.
13
Although Ms. Lewis’s Notice of Appeal stated that she appealed from the judgment dismissing
her claims in their entirety, in this Court she failed to address the district court’s grant of
qualified immunity to Chief Odom in her opening brief. She therefore has waived this claim.
E.g., Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1307 (11th Cir. 2012); United States v. Levy,
379 F.3d 1241, 1244 (11th Cir. 2004); see also FED. R. APP. P. 28(a)(5).
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TJOFLAT, Circuit Judge, dissenting:
I agree with the majority that the dismissal of Lewis’s § 1983 and equal protection
claims against Union City and against Chief Odom should be affirmed. We part
ways after that.
I.
Lewis fails to show a genuine dispute of material fact as to whether she was
“regarded as” disabled under the ADA. To be “regarded as” disabled, Lewis must
show that “she has been subjected to a[] [prohibited] action . . . because of an
actual or perceived physical or mental impairment.” 42 U.S.C. § 12102(3)(A)
(emphasis added). Lewis was placed on administrative leave because Dr. Harris
recommended that Tasers and OC spray not be used on “or near” Lewis. The
Union City Police Department required all officers to carry Tasers, and officers
routinely carried OC spray into the office. Lewis’s mere presence at work put her
at risk. Whether that fact derived from her heart condition is irrelevant: she could
not be at work, so she was placed on leave. She was then terminated because she
was out of leave, had not submitted FMLA paper work requesting additional leave,
and had not provided any information from her doctor indicating she could return
to work. Although the trier of fact is not required to accept the Defendants’
proffered reasons, the Plaintiff is required to put forth evidence countering them
and allowing a jury to reasonably conclude she was fired because she was regarded
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as disabled. See Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1191
(11th Cir. 2016). Lewis has not done so.
Lewis must also show she is a “qualified individual” who can perform the
“essential functions” of her job to succeed on her ADA claim. 42 U.S.C.
§ 12111(8). I agree with the majority that whether receiving a Taser shock is an
essential function of being a detective is a question for the jury. But surely Lewis
would at least have to be medically able to be around Tasers and OC spray. The
position of Police Department Detective requires working with other officers who
carry and use such weapons. OC spray is an aerosol that can affect anyone in its
vicinity; an inadvertent discharge in the Police Department building might affect
everyone present. Taser shocks can endanger many others beside the intended
recipient. No reasonable jury could find that a detective who cannot risk exposure
to OC spray and Tasers could satisfy the essential functions of her job.1
Thus, whether stated as failing to prove she was fired because she was
regarded as disabled, or as failing to prove she could perform the essential
functions of her job, Lewis failed to meet her burden. Lewis has not shown that
the Police Department fired her because it regarded her as disabled.
1
At least not without a reasonable accommodation of transfer to another position, which Lewis
has failed to put forth.
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II.
Likewise, under Title VII, Lewis has not put forth sufficient evidence for a
jury to reasonably conclude the Union County Police Department discriminated
against her because of her race or gender. First, she has failed to offer comparators
who are similarly situated such that their disparate treatment could support an
inference of discrimination. Lewis must show that she and her comparators “are
similarly situated in all relevant aspects.” Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997). She must show that the activity in which her comparators were
involved and the consequences that resulted are “nearly identical to the plaintiff’s
in order to prevent courts from second-guessing employers’ reasonable decisions
and confusing apples with oranges.” Flowers v. Troup Cty., Ga., Sch. Dist., 803
F.3d 1327, 1341 (11th Cir. 2015) (quoting Silvera v. Orange Cty. Sch. Bd., 244
F.3d 1253, 1259 (11th Cir. 2001) (quotation marks omitted)). “Though the
comparators need not be the plaintiff’s dopplegangers, the ‘nearly identical’
standard requires much more than a showing of surface-level resemblance.”2 Id.
2
The Court here argues that the nearly identical test does not apply because in “the majority” of
cases where this Court uses the standard, it has been applied to answer the supposedly “narrow
question” of whether “workplace misconduct” by proposed comparators of different races or
genders, for which they were treated more leniently than the plaintiff, was sufficiently similar to
the plaintiff’s misconduct to support an inference of discrimination. Ante, at 34, n.11. Two
points, at least. First, continuing to stay out on leave one knows one is no longer entitled to,
without properly notifying one’s employer, sure seems like “misconduct.” Second, the majority
admits “[t]wo recent cases that did not involve disparate treatment of workplace misconduct
have used” the nearly identical standard, while failing to cite any precedent indicating that
standard is confined to that circumstance. See Id. The majority nevertheless concludes that the
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Lewis’s proposed comparators, Sergeant McClure and Officer Heard, fall far short
of this standard. Indeed, the only ways in which they are similar to Lewis are that
all three failed to meet some sort of requirement, and all three were placed on
administrative leave.
The similarities stop there. McClure and Heard failed to meet physical
fitness requirements, while Lewis failed to meet a training requirement. These two
sets of requirements have different purposes, and thus are governed by different
sets of policies.3 It is the Police Department’s prerogative to decide how best to
remedy deficiencies in each set.4 Holding that McClure and Heard are sufficiently
comparable to Lewis such that she can escape summary judgment would do away
with our “nearly identical” standard.
nearly identical test “was tailored specifically to determine whether” misconduct by proposed
comparators was sufficiently comparable to that of plaintiffs. Id. I fail to see a foundation on
which this conclusion rests.
3
McClure and Heard were placed on administrative leave under a physical fitness policy that
expressly provided for 90 days of unpaid leave for failing a fitness test. In contrast, Lewis was
placed on administrative leave because her doctor recommended that weapons she was to be
certified to carry as part of her training could not be used “on or near her.” Under this separate
policy, she was expressly instructed to apply for FMLA leave and that she could use her other
leave “until . . . expended.” Lewis was then terminated after exhausting her other leave and
failing to apply for FMLA leave.
4
Note here, in addition to our reticence to substitute the Court’s judgment for that of employers,
the “special need for deference to the employment decisions of those responsible for ensuring
public safety,” across many contexts. See, e.g., Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir.
1999); Juchenreuther v. City of Milwaukee, 221 F. 3d 967, 974 (7th Cir. 2000); Etheridge v.
Alabama, 860 F. Supp. 808, 816 (M.D. Ala. 1994); Robert v. Carter, 819 F. Supp. 2d 832, 844–
45 (S.D. Ind. 2011).
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Lewis has also failed to show a “convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination.” Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (emphasis added)
(quoting Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011)). The
majority finds evidence from which the jury could infer the Police Department was
“arbitrary” and “inconsisten[t]” in its actions toward Lewis, that its averred reasons
for terminating her were false, and that it treated other employees differently.
Ante, at 38–41. I agree. Lewis may have put forth a mosaic of circumstantial
evidence that would allow a jury to infer something. But there is no evidence that
something would be intentional discrimination.
There could be any number of reasons5 that the Police Department treated
Lewis the way it did—she could have been personally disliked, the Police
Department may have believed that she was malingering, or perhaps she and Chief
Odom were fans of rival basketball teams. “Title VII does not allow federal courts
to second-guess nondiscriminatory business judgments, nor does it replace
employers’ notions about fair dealing in the workplace with that of judges.”
Flowers, 803 F.3d at 1338. The only evidence Lewis offers “that even touches on”
her race or gender is the fact that her proposed comparators—whose situations are
dissimilar in degree and kind—are of a different race and gender. See id. Lewis
5
As the majority puts it: “there are many conclusions a jury could reach based on the evidence
presented . . . which would [not] support a finding of discrimination.” Ante, at 41.
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has the burden of persuasion, yet the evidence she puts forward, without more,
simply does not “suggest a causal connection between” her race or gender and her
treatment by the Police Department. See id. Lewis has not put forth a convincing
mosaic of circumstantial evidence that would tend to show that the Police
Department intentionally discriminated against her based on her race or gender.
Her claim thus cannot survive summary judgment.
For these reasons, I respectfully dissent.
48