Kevin G. Roddy v. City of Villa Rica, Georgia

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15218
________________________
D.C. Docket No. 3:11-cv-00081-TCB
KEVIN G. RODDY,
a.k.a. Kevin Grayson Roddy,
Plaintiff - Appellant,
versus
CITY OF VILLA RICA, GEORGIA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 4, 2013)
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Before PRYOR and COX, Circuit Judges, and WALTER, ∗ District Judge.
PER CURIAM:
This appeal requires that we determine, first, whether an employee who
never requested a transfer to another position as a reasonable accommodation from
his employer can maintain a claim of failure to provide that transfer as a reasonable
accommodation under the Americans with Disabilities Act; second, whether
additional leave time is a reasonable accommodation when an employee cannot
establish that he will be able to perform his job in the present or immediate future;
third, whether an employee can establish a claim of either disability discrimination
or retaliation when his employer stated that it terminated him because of his
inability to perform his job and the record confirms that he could not perform his
job; and, fourth, whether an employee can predicate a claim under Georgia law for
intentional infliction of emotional distress on his termination from his job. Kevin
Roddy was a patrol officer employed by the police department of the City of Villa
Rica, Georgia. After suffering an injury while off duty, Roddy took a leave of
absence for back surgery in April 2010. During his recovery, he gave the
department a note from his doctor stating that he could return to work in January
2011. Roddy never requested that any decision maker with the City provide him
with a transfer to a new position, but gave the City a note that asked for additional
∗
Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana,
sitting by designation.
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leave time. After Roddy exhausted his entitlement to leave under the Family
Medical Leave Act, the City terminated him because of his physical inability to
return to work. Roddy filed a complaint against the City for disability
discrimination, retaliation, intentional infliction of emotional distress, and
negligent supervision. The district court entered a summary judgment in favor of
the City. We affirm.
I. BACKGROUND
Kevin Roddy was a patrol officer employed by the police department of the
City of Villa Rica, Georgia. While off duty, Roddy fell at a restaurant and injured
his back. After his injury, Roddy’s doctor, Ali Mortazavi, told him that he was a
candidate for back surgery, but Dr. Mortazavi would try other measures to avoid
the need for surgery. A few months later, Dr. Mortazavi told Roddy that his back
was not improving and he could cause more serious injury to his back if he were
involved in a physical altercation.
In April 2010, Roddy gave the City a note from Dr. Mortazavi that stated
that Roddy would need to be absent from work from April 2, 2010, until July 1,
2010, for back surgery. Roddy received twelve weeks of leave under the Family
Medical Leave Act. In an email Roddy sent to several City employees that May,
he wrote that he was “not sure what the future holds for me in my law enforcement
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career.” Roddy stated that, although Dr. Mortazavi told him there was “a
possibility of returning,” that possibility was “slim.”
In June 2010, Dr. Mortazavi gave Roddy a certificate of work status that
listed January 3, 2011, as the date Roddy could “return to full and normal work
status with no restrictions.” Roddy gave the certificate to Mary Chaffin, the human
resources officer for the City. According to Dr. Mortazavi, although it was
possible that Roddy could return to work several weeks or months before January
3, 2011, that possibility was premised on Roddy undergoing a second back
surgery. Roddy told Chaffin that he may need a second surgery to help “stabilize”
his back. Roddy also told Chaffin that he could not sit or stand for long periods of
time. Roddy also spoke with Michael Mansour, Chief of the police department.
Roddy gave Chief Mansour the certificate, but he made no request of the Chief.
By the end of June 2010, Roddy had exhausted all of his leave time under
the Leave Act. Chief Mansour believed that, based on all the circumstances,
including the note from Dr. Mortazavi, Roddy could not return to work for at least
four or five more months. Because the department has a limited number of
“budgeted, sworn officer positions,” Chief Mansour could not hire any additional
officers as long as he held a position vacant for Roddy. Around July 22, 2010,
Chaffin sent Roddy a letter that notified him of his termination. The letter stated
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that the City terminated Roddy because he was physically unable to work, but it
would consider him for reemployment if his condition improved.
On July 28, 2010, Roddy filed a charge against the City with the Equal
Employment Opportunity Commission. Roddy later filed in the district court a
complaint against the City for discrimination and retaliation under the Americans
with Disabilities Act and claims for intentional infliction of emotional distress and
negligent supervision under Georgia law. Roddy later filed an amended complaint
alleging the same claims.
Roddy testified by deposition that, before April 2010, he never submitted
documentation that he was unable to perform his duties as a patrol officer or that
he needed an accommodation. Roddy testified that, on the same day that Dr.
Mortazavi gave him the certificate of work status, Roddy asked Dr. Mortazavi if he
could return back to “light-duty” work that same day. Although Dr. Mortazavi told
Roddy that he preferred that Roddy not return to work, Roddy could return “if
that’s what [he] need[ed] to do.” Roddy insisted he wanted to return to work “to
make money for [his] family.” Roddy described bringing his certificate of work
status to Chaffin. He explained that, after he gave his certificate to Chaffin, she
asked if he could perform light-duty assignments. He testified that he expressed
willingness to do light-duty work. But he also told Chaffin that he could not sit or
stand for long periods of time. He also informed Chaffin that Dr. Mortazavi
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wanted him to undergo a second surgery. Roddy testified that, on that same day,
he met with Chief Mansour. Although Roddy told Chief Mansour that his return
date of January 3, 2011, was not “set in stone,” Roddy testified that he made no
request of Chief Mansour during that meeting.
After the City filed a motion for a summary judgment, Roddy filed an
affidavit that contradicted his earlier deposition testimony. In that affidavit, Roddy
stated that he “never told Ms. Chaffin in th[e] conversation or at any other time
that [he] couldn’t sit or stand for any length of time or for more than just a few
minutes at a time.” Roddy stated that, after he gave him his certificate, Roddy told
Chief Mansour that he might be able to return to light-duty work before January 3,
2011. Roddy also stated that he told Chief Mansour that Dr. Mortazavi “was
alright with me working as an Investigator from a medical standpoint” and that, if
there was no investigator position available, he would “like to be given some
additional leave.”
Chaffin testified by deposition that she asked Roddy if he could perform
light-duty work, and he responded that he could not. She testified that she did not
ask Roddy whether the return date on the certificate was a “hard-and-fast date,” but
instead “believe[d] what the doctor[] wrote down.” Chaffin testified that the last
information she received from Roddy about his health was the June 11 certificate
from Dr. Mortazavi that stated that Roddy could not return to work until January 3,
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2011, and that she has never received a note from Dr. Mortazavi that released
Roddy to return to work. She also testified that, after Roddy gave her the
certificate, she called Chief Mansour to let him know that she had received the
certificate. After the call to Chief Mansour, she had no further discussions about
Roddy’s employment status. In her declaration, Chaffin provided more details
about her call to Chief Mansour and stated that she told Chief Mansour that Roddy
had told her that he could not perform light-duty work.
Chief Mansour testified by deposition that, after Roddy gave him the
certificate, Roddy did not tell him that Dr. Mortazavi did not want Roddy to
continue to serve as a patrol officer, nor that Dr. Mortazavi told Roddy that he was
not physically capable of working as a patrol officer, nor that Roddy would
continue to work as a patrol officer if it was necessary. Chief Mansour testified
that Roddy did not tell him that the return date on the certificate “was not a date
that was set in stone.” Chief Mansour testified that Roddy told him that he wanted
to come back to work, but did not know if he would be able. Chief Mansour
testified that Roddy did not tell him that Dr. Mortazavi thought Roddy should be
transferred to the position of investigator after his surgery, and Chief Mansour and
Roddy never discussed any transfer or additional leave time. In an affidavit, Chief
Mansour explained that, after he spoke to Chaffin about Roddy’s certificate, he
spoke to Larry Wood, the city manager, about Roddy’s return date. Chief Mansour
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told Wood that, because he was already short of manpower with Roddy’s absence,
he could not wait until January 2011 without hiring a new officer. Because the
department had a limited number of positions for officers, Chief Mansour could
hire a new officer only if he terminated Roddy.
Dr. Mortazavi testified by deposition that he never told Roddy he could not
work as a patrol officer, but did advise against it. He testified that it was possible
Roddy could return to work as a patrol officer before January 3, 2011, if Roddy
underwent a second surgery. He testified that, when he scheduled Roddy’s
surgery, he told Roddy there was a chance he could return to work as a patrol
officer, but he “just couldn’t guarantee it.” When he was asked in a questionnaire
by an attorney whether Roddy could “return to his job as a law enforcement
officer” as of August 25, 2010, Dr. Mortazavi wrote “No” and underlined his
answer. Dr. Mortazavi testified that, when he wrote “No,” he was referring to
Roddy’s ability to return to work at that time. Dr. Mortazavi testified that, as of
November 29, 2011, he had released Roddy to work as a detective, but not as a
patrol officer without restrictions.
The City filed a motion for a summary judgment against Roddy’s complaint.
A magistrate judge recommended that the district court grant the motion. The
magistrate judge recommended that the district court dismiss all alleged violations
that occurred before February 2010 as untimely because Roddy filed his complaint
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with the Equal Employment Opportunity Commission on July 28, 2010, and the
Disabilities Act requires a plaintiff to file a complaint with the Commission within
180 days of the occurrence of an unlawful event. See 42 U.S.C. § 2000e-5(e)(1).
The magistrate judge recommended that the district court grant summary judgment
against Roddy’s claim of failure to provide a reasonable accommodation under the
Disabilities Act because the extended leave requested by Roddy was not
reasonable and there were no investigator positions available when Roddy
allegedly requested an investigator position. The magistrate judge recommended
that the district court grant summary judgment against Roddy’s claim of
discriminatory discharge because Roddy failed to establish that he suffered
unlawful disability discrimination or that the reason for his termination proffered
by the City, his inability to work, was pretextual. The magistrate judge
recommended that the district court grant summary judgment against Roddy’s
claim of retaliation for the same reason. The magistrate judge recommended that
the district court grant summary judgment against Roddy’s claim of intentional
infliction of emotional distress because employment-related activities alone cannot
serve as the predicate for a claim of intentional infliction of emotional distress.
The magistrate judge recommended that the district court grant summary judgment
against Roddy’s claim of negligent supervision because, under Georgia law, a
claim of negligent supervision cannot be predicated on a violation of the
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Disabilities Act. The district court adopted these recommendations and granted
summary judgment in favor of the City.
II. STANDARD OF REVIEW
We review de novo a summary judgment. Schoenfield v. Babbit, 168 F.3d
1257, 1264 (11th Cir. 1999).
III. DISCUSSION
We divide our discussion in three parts. First, we explain that the City was
entitled to a summary judgment against Roddy’s claim of failure to provide a
reasonable accommodation because he never requested a transfer to the position of
investigator as an accommodation and the extended leave he requested was not a
reasonable accommodation. Second, we explain that the City was entitled to a
summary judgment against Roddy’s claims for disability discrimination and
retaliation because the proffered reason for his termination, Roddy’s inability to
perform his duties as a patrol officer, was undisputed. Third, we explain why the
City was entitled to a summary judgment against Roddy’s claim of intentional
infliction of emotional distress because, under Georgia law, that claim cannot be
predicated on an employment decision alone. Because claims for negligent
supervision cannot be established without another, predicate offense, see MARTA
v. Mosley, 634 S.E.2d 466, 469 (Ga. Ct. App. 2006), and all of Roddy’s other
claims have been dismissed, we need not address whether, under Georgia law, a
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claim of negligent supervision can be predicated on a violation of the Disabilities
Act.
A. Because Roddy Never Requested a Transfer as an Accommodation and Failed
To Establish That He Could Return to Work in the Present or Immediate Future,
the City Was Entitled to a Summary Judgment Against Roddy’s Claim of Failure
To Provide a Reasonable Accommodation.
Roddy argues that there is a genuine issue of material fact as to whether
either a transfer to an investigator position or an extended leave of absence were
reasonable accommodations. Under the Disabilities Act, an employer cannot
discriminate “against a qualified individual on the basis of disability in regard to
job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges
of employment.” 42 U.S.C. § 12112(a). “[T]o establish a prima facie case of
discrimination under the [Act], [the plaintiff] must demonstrate that she (1) is
disabled, (2) is a qualified individual, and (3) was subjected to unlawful
discrimination because of her disability.” Cash v. Smith, 231 F.3d 1301, 1305
(11th Cir. 2000). A “qualified individual” is someone with a disability who, “with
or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires.” 42 U.S.C. § 12111(8).
“[A] plaintiff must show either that he can perform the essential functions of his
job without accommodation, or, failing that, show that he can perform the essential
functions of his job with a reasonable accommodation.” D’Angelo v. ConAgra
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Foods, 422 F.3d 1220, 1229 (11th Cir. 2005) (internal quotation marks omitted).
“An employer unlawfully discriminates against a qualified individual with a
disability when the employer fails to provide ‘reasonable accommodations’ for the
disability—unless doing so would impose undue hardship on the employer.”
Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001) (quoting
Davis v. Fla. Power & Flight Co., 205 F.3d 1301, 1305 (11th Cir. 2000)) (citing 42
U.S.C. § 12112(b)(5)(A)). But “the duty to provide a reasonable accommodation
is not triggered unless a specific demand for an accommodation has been made.”
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir.
1999).
1. Roddy Never Requested a Transfer to an Investigator Position as an
Accommodation for His Disability.
We need not address Roddy’s claim that the City failed to provide him a
reasonable accommodation by transferring him to an investigator position because
Roddy did not establish that he made a specific demand for that accommodation,
and the failure to make that specific demand is fatal to his claim. See Welding
Servs. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007) (“This court may affirm
[the grant of a motion for a summary judgment] on any ground supported by the
record.”). After his surgery, Roddy gave his certificate of work status to both
Chaffin and Chief Mansour. Roddy did not request a transfer to an investigator
position from Chaffin when he gave her the certificate, and he testified that he
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made no requests of Chief Mansour during their meeting. Although Roddy stated
in his later-filed affidavit that he requested either additional leave time or a transfer
to an investigator position from Chief Mansour, “[w]hen a party has given clear
answers to unambiguous questions which negate the existence of any genuine issue
of material fact [for summary judgment], that party cannot thereafter create such an
issue with an affidavit that merely contradicts, without explanation, previously
given clear testimony.’” McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1240 n.7 (11th Cir. 2003) (emphasis omitted). Because Roddy never requested a
transfer from either Chief Mansour or Chaffin as an accommodation for his
disability, Roddy’s claim of failure to accommodate fails as a matter of law.
Gaston, 167 F.3d at 1363–64.
2. An Extended Leave Would Not Have Been a Reasonable Accommodation.
Roddy argues that the district court erred when it found that the extended
leave Roddy requested was an unreasonable accommodation. “[A]n employer
d[oes] not violate the [Disabilities Act] by ‘refusing to grant [an employee] a
period of time in which to cure his disabilities’ where the employee ‘sets no
temporal limit on the advocated grace period, urging only that he deserves
sufficient time to ameliorate his conditions.’” Duckett v. Dunlop Tire Corp., 120
F.3d 1222, 1226 (11th Cir. 1997) (citing Myers v. Hose, 50 F.3d 278, 282 (4th
Cir. 1995)). Although a leave of absence may in some circumstances be a
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reasonable accommodation, “an accommodation is unreasonable if it does not
allow someone to perform his or her job duties in the present or in the immediate
future.” Wood v. Green, 323 F.3d 1309, 1314 (11th Cir. 2003). “The [Disabilities
Act] covers people who can perform the essential functions of their jobs presently
or in the immediate future.” Id.The district court did not err. Roddy’s request for an extended leave of
absence would not have allowed him to perform his job in the present or
immediate future. In his email to City officials, Roddy stated that, although Dr.
Mortazavi told him there was “a possibility of returning,” that possibility was
“slim.” On the day Roddy gave Chaffin his certificate of work status, he told her
that he may need a second surgery to help “stabilize” his back, and that he could
not sit or stand for long periods of time. Dr. Mortazavi testified that he did not
clear Roddy to return to work as of August 25, 2010, and had not cleared Roddy to
work as a patrol officer without restrictions as of November 21, 2011. Mortazavi
also testified that the date of January 3, 2011, was “purely a guess,” and that he
“frequently adjust[s] these dates as we go along during the healing process”
because he “really ha[s] no way to know when a person exactly heals or what kind
of complication they have after surgery.”
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B. Because Roddy Failed To Establish That the Proffered Reason for His
Termination Was Pretextual, the City Was Entitled to a Summary Judgment on the
Claims for Discriminatory Discharge and Retaliation.
Roddy argues that there is a genuine issue of material fact as to whether the
City terminated him because of his disability and that the reason proffered by the
City was pretextual. “To establish a prima facie case of discrimination under the
[Disabilities Act], a plaintiff must show: (1) she is disabled; (2) she is a qualified
individual; and (3) she was subjected to unlawful discrimination because of her
disability.” Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). “To
establish a prima facie case of retaliation, a plaintiff must show: (1) statutorily
protected expression; (2) adverse employment action; and (3) a causal link between
the protected expression and the adverse action.” Stewart v. Happy Herman’s
Cheshire Bridge, 117 F.3d 1278, 1287 (11th Cir. 1997). When a plaintiff
establishes a prima facie claim of disability discrimination or retaliation, the
burden of production shifts to the defendant to provide “legitimate,
nondiscriminatory reasons” for the purported discrimination. See Standard v.
A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998); Stewart, 117 F.3d at
1287. The plaintiff must then introduce evidence “to allow a reasonable fact finder
to conclude that the proffered reasons were not actually the motivation.” Standard,
161 F.3d at 1332; see also Stewart, 117 F.3d at 1287. The plaintiff can rebut the
proffered reasons “(1) by showing that the legitimate nondiscriminatory reasons
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should not be believed; or (2) by showing that, in light of all of the evidence,
discriminatory reasons more likely motivated the decision than the proffered
reasons.” See Standard, 161 F.3d at 1332.
The City stated that the reason Roddy was terminated was his physical
inability to return to work, and Roddy failed to establish that this reason is
pretextual. In the letter terminating Roddy, the City stated that Roddy was being
terminated “[b]ased on [his] inability to perform the tasks of [his] position.” The
City explained that it terminated Roddy because he “was unable to return to work
in any capacity, and his doctor indicated that he would not be able to return [to]
work for at least six months.” Although Roddy argues that there is “a major
factual dispute in the evidence” as to whether “Chief Mansour and Mary Chaffin
believed/understood that [Roddy] was unable to continue working in any
capacity,” the record establishes no such dispute. Chief Mansour testified that
Roddy told him that, although he wanted to return to work, he did not know if he
would be able to do so. Chaffin testified that she never received a note from Dr.
Mortazavi that released Roddy to return to work. Roddy’s email to City officials
stated that the possibility of returning to law enforcement was “slim.” Dr.
Mortazavi testified that, as of August 25, 2010, he had not cleared Roddy to return
to work. And Roddy testified that he told Chaffin that he could not sit or stand for
long periods of time. Although Roddy stated in his later-filed affidavit that he
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never told Chaffin “that I couldn’t sit or stand for any length of time or for more
than just a few minutes at a time,” Roddy cannot create a genuine issue of material
fact by filing an affidavit that contradicts his earlier deposition testimony. See
McCormick, 333 F.3d at 1240 n.7.
Roddy argues that Chaffin had no basis to believe that Roddy was unable to
return to work when he was terminated, but the record establishes otherwise.
Chaffin testified that she understood that Roddy was unable to return to work
because he was on short-term disability and was “‘probably’ going onto long-term
disability.” Chaffin also testified that the last information she received from
Roddy about his health was the June 11 certificate from Dr. Mortazavi, which
stated that Roddy could not return to work until January 3, 2011, and that she has
never received a note from Dr. Mortazavi that released Roddy to return to work.
Although Roddy argues that he told Chief Mansour and Chaffin that his return to
work on January 3, 2011, was only an estimate, that fact does not establish that
Roddy could return to work at the end of his leave period. Because Roddy failed
to establish that the legitimate reason proffered by the City for his termination was
pretextual, the district court correctly granted a summary judgment against
Roddy’s claims of disability discrimination and retaliation.
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C. Because a Claim of Intentional Infliction of Emotional Distress Cannot Be
Predicated on an Employment Decision Alone, the City Was Entitled to a Summary
Judgment Against That Claim.
Roddy argues that Georgia law allows for claims for intentional infliction of
emotional distress based on discriminatory, retaliatory, or harassing conduct. In
Georgia, to prevail on a claim of intentional infliction of emotional distress, a
plaintiff must establish that “(1) the conduct giving rise to the claim was
intentional or reckless; (2) the conduct was extreme and outrageous; (3) the
conduct caused emotional distress; and (4) the emotional distress was severe.”
Steed v. Fed. Nat’l Mortg. Corp., 689 S.E.2d 843, 851 (Ga. Ct. App. 2009). “The
defendant’s conduct must be so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community. Whether a claim rises to the requisite level of
outrageousness and egregiousness to sustain a claim of intentional infliction of
emotional distress is a question of law.” Frank v. Fleet Fin., 518 S.E.2d 717, 720
(Ga. Ct. App. 1999) (internal quotation marks and citation omitted). “Georgia
courts have held that an employer’s termination of an employee—however
stressful to the employee—generally is not extreme and outrageous conduct.”
Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1229 (11th Cir. 1993) (citing ITT
Rayonier v. McLaney, 420 S.E.2d 610, 612 (Ga. Ct. App. 1992)).
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The record does not establish that the City subjected Roddy to any extreme
and outrageous conduct. Although Roddy was terminated, he “was not subjected
to any abuse or otherwise treated with disrespect.” Id. His termination alone does
not rise to the level of “extreme and outrageous conduct” upon which a claim of
intentional infliction of emotional distress can be maintained.
Additionally, the record does not establish that any emotional distress
suffered by Roddy was severe. Although “the frustration associated with [losing]
one’s job . . . is understandable,” that frustration alone is not “sever[e].” Jones v.
Fayette Family Dental Care, Inc., 718 S.E.2d 88, 91 (Ga. Ct. App. 2011). When
describing his emotional distress, Roddy explained that he “got in a depression
mode that you wouldn’t never believe.” He described the food drive his church
hosted for him and his family as “downgrading.” He also testified that he had
trouble sleeping. The kind of distress described by Roddy, although unfortunate, is
akin to the distress ordinarily associated with the loss of a job, and Georgia courts
have held that that kind of distress is not “severe.” See id.IV. CONCLUSION
We AFFIRM the summary judgment in favor of the City.
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