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Lewis v. City of Union City, Ga., No. 15-11362 (11th Cir. Dec. 15, 2017)

In the ceaseless struggle over what is meant by "similarly situated," an Eleventh Circuit splits over whether the plaintiff - a Black woman detective with a heart condition - presented enough evidence that two white male officers who failed a physical-fitness requirement were treated better. The case also considers, for an ADA claim, whether receiving a Taser shock or pepper spraying in training was an "essential function" of the job.

Lewis v. City of Union City, Ga., No. 15-11362 (11th Cir. Dec. 15, 2017): Detective Lewis had ten years of trouble-free service with the Union City Police Department (UCPD) when the trouble started. Lewis had a heart condition (diagnosed in 2009), though she was cleared to work in law enforcement.

When the department acquired tasers and required all officers to carry them, a problem opened for the plaintiff. The department required that all officers submit to a five-second Taser shock as part of their training. Her doctor (Harris) refused to clear her for this exercise, writing that she "would not recommend that a Taser gun or OC [pepper] spray be used on or near [Lewis] secondary to her chronic conditions."

Lewis was placed on unpaid administrative leave on June 17, 2010 until she could get clearance to submit to a Taser shock. She began using accrued leave time, and requested (on July 1) a return to duty, with an accommodation that she not be subjected to a Taser shock in training. The department repeated its demand for medical clearance. Lewis's doctor was unavailable during this period for consultation with the department, though she was scheduled to return on July 7.

When the department and Dr. Harris did not connect on July 7 (due to a mishap), and Lewis's accrued leave time was finally exhausted, the department fired Lewis on July 8 for supposedly being absent without leave. On the same day, Lewis's doctor finally connected with the assistant chief of the department. According to the doctor's deposition testimony, "this conversation was unpleasant and left her 'quite offended' because she felt that Assistant Chief Brown 'questioned my professionalism and my professional opinion.'"

Lewis sued under a variety of theories: disability discrimination under the ADA, and race and gender discrimination under § 1981, § 1983, and Title VII. As comparators, Lewis proffered two white men who failed physical fitness requirements but were given time to correct it.

"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 district court granted summary judgment on all claims: (1) on her ADA claim, that Lewis failed to demonstrate a genuine dispute of material fact that she was a "qualified individual"; (2) on her race and gender claims, that her 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."

In an opinion signed by visiting judge Louis A. Kaplan (of the Southern District of New York), the panel reverses summary judgment in part.

On the ADA claim, the panel majority finds that Lewis presented enough evidence to establish that she was "regarded as" disabled by her employer. There were persistent references in the record to Lewis's chronic condition by several departmental employees (principally Assistant Chief Brown), including inquiries about getting medical clearance and the availability of FMLA leave. Although the employer characterized these inquiries as evaluating possible harm to the plaintiff at work, the panel notes an EEOC interpretive guidance (29 C.F.R. § Pt. 1630, App.) that taking "an adverse action because it fears the consequences of an employee's medical condition has regarded that employee as disabled

(Lewis failed to present a record of being actually disabled, though: the only substantial limitations asserted, sleep and "periodic . . . shortness of breath," were held not to be supported with proof of duration or severity.)

The panel majority also holds that There is a genuine dispute about whether Lewis a "qualified person." The department asserted she could not perform the essential functions of a Union City detective, which "included being exposed to OC spray and a Taser shock." The panel majority notes several disputed issues:

"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. FurTHERE, 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."

The panel majority FurTHERE holds that There was sufficient evidence to draw an inference of disability discrimination (citing the above evidence that she was, arguably, terminated because of her perceived condition), and that the department could not make out its burden (on summary judgment) on its "direct threat" defense: "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."

On the race and gender claims, the panel majority holds that There was a genuine dispute both on the prima facie case and pretext.

Seeking to make the two white men appear different, thus not "similarly situated," the department argued that Lewis alone was not qualified to work around tasers or OC spray without risk to herself. But the panel majority notes that Lewis's doctor never said such a thing, and that even if this were a plausible reason, the information was learned long after her termination and thus "could have played no role in defendants' decision to put her on leave and terminate her."

The department also argued that "Heard and McClure were not appropriate comparators because they failed physical fitness tests, not weapons certification tests." But the panel majority holds that a jury could hold otherwise:

"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."

The panel majority underscore that the "test for whether comparators are appropriately considered is whether they are similarly situated in all relevant respects." The relevant axis was physical requirements, and "proper balance and sufficient agility" for the men (a jury could find) are no less physical requirements than the ability to withstand a Taser or pepper spraying.

"In Thererr 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 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."

Though noting it is a "close call," the panel majority holds that it is an issue for the jury.

Besides the existence of white male comparables, the panel holds that There were Thererr facts in the record sufficient to present a "convincing mosaic of circumstantial evidence." These include (1) the department not informing Lewis when her unpaid leave must end; (2) not warning Lewis that she would be fired upon the exhaustion of accrued leave; (3) giving Lewis no notice that she had to file FMLA paperwork by any specific date to extend here leave. There was also evidence that the department, without cause, mistrusted Lewis's account of her medical condition and believed she was malingering.

In closing, the panel affirmed summary judgment on municipal liability under § 1983, because There was no genuine dispute of material fact that Lewis's termination was subject to a meaningful administrative review.

Judge Tjoflat, dissenting, would hold that (1) "[n]o reasonable jury could find that a detective who cannot risk exposure to OC spray and Tasers could satisfy the essential functions of her job," thus There was no genuine dispute that plaintiff was not a "qualified person"; (2) the two male comparators were not similarly situated because they were removed from duty for fitness, rather than training, shortcomings; and (3) even if the plaintiff made out a prima facie case, she could not prove that she was singled out because of race or gender.

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