Police Detective Can’t Be Fired for Inability to Receive Taser Shock, Holds Divided Panel on Remand from En Banc Court

On August 15, 2019, the Eleventh Circuit decided the employment discrimination case of Lewis v. City of Union City, 2019 WL 3821804, that had been remanded from the en banc court, having decided that the appropriate standard for comparator evidence is whether the proposed comparators are “similarly situated in all material respects.” The panel’s new opinion greatly resembles its first opinion, coming to the same conclusions, dividing in the same measure (Judge Rosenbaum and visiting Judge Kaplan in the majority with Judge Tjoflat dissenting), and finding a way to consider the comparator evidence for much the same purpose. Moving on, the plaintiff can present her claims of discrimination to the jury.

A female African-American police detective brought suit against Union City, Georgia after the city terminated her employment. The city’s purported reason for termination was that she had been absent without leave, although it had placed her on indefinite administrative leave just days before, pending resolution of whether she could safely be subjected to a Taser shock or exposed to pepper spray.  She sued the city for discrimination on the basis of race, gender, and disability.

The city’s police chief in early 2010 began requiring all detectives to carry a Taser and further required them to receive a five-second shock as part of the Taser training, stating five justifications for this policy.  In response, the plaintiff’s doctor reported that suffering a Taser shock might cause undue stress to her heart, related to a heart condition in which she had suffered a heart attack in 2009.

The city had an FMLA policy allowing up to 12 weeks of unpaid leave for serious health conditions rendering employees unable to perform the functions of their jobs. Accordingly, two days after issuance of the new Taser policy, on June 17, the plaintiff was involuntarily placed on administrative leave without compensation until released by her physician to return to full and active duty. Notably, the letter to the plaintiff provided no time period during which she was required to be medically cleared before returning.

The city then terminated her on July 8 without having attempted to contact the physician, stating “[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 [FMLA], your absence is unapproved and you are terminated effective immediately.”

Examining the ADA claim, the panel held that while she had not met the “actually disabled” definition (she had not sufficiently shown that any physical impairment limited a major life activity), she had sufficiently shown that she was “regarded as disabled.” This was easily shown by the fact that the police chief himself had witnessed her heart attack and instructed her to complete the FMLA paperwork. The court applied the “common sense principle” from (nonbinding) federal regulations 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.” The court found that these same facts supported the third element, that the “regarded as” disability was the motivation for the adverse action.

The question of whether the plaintiff could show she was a qualified individual turned on whether undergoing the Taser shock was an essential function of the job. The posted job description never mentioned such a function, including where it lists “physical demands” of the job. Nor did Taser International require trainees to receive a shock in order to become certified in Taser use. So a jury could find that this was not an essential function of the job in question.

The city had also raised the direct threat defense, arguing that her very presence in the workplace was a direct threat to herself because others would be exposed to the OC spray and Tasers. But this defense required an analysis of the individual’s ability to safely perform the essential functions of the job. This could not be ruled out until a jury had fully determined whether the receipt of a Taser shock was in fact an essential job function.

Moving on to the race and gender claims, the en banc court had already determined that these claims could not proceed under the McDonnell Douglas framework, but there was still the alternative of producing circumstantial evidence of the discriminatory intent. Comparators were not the only way to show that. The panel found that “convincing mosaic” of circumstantial evidence present here. First, the city terminated her only a week after placing her on indefinite administrative leave, despite her request to return to work. Second, it did so without giving her the option to use her accrued leave instead of being on unpaid status. Third, she was given no notice that she needed to file FMLA paperwork by a specific date.

The court also found evidence that the stated reasons for terminating the plaintiff were pretextual. The city stated that one reason for firing the plaintiff was that her medical condition was permanent. But there was also evidence that it believed she was faking her medical condition. And, the plaintiff had been in frequent contact with the city over the first week of July, informing it that she had a doctor’s appointment scheduled for July 7, yet she was terminated on the very next day, before her superiors ever heard a report from the doctor. Though the panel, with tongue-in-cheek, was not permitted to find comparators, it nevertheless used the comparator evidence to show pretext.

“[S]till more tiles in this mosaic” of circumstantial evidence of intentional discrimination included comments that the lieutenant assigned “lady” detectives to “children and women crimes” and “the more aggressive stuff” to himself or a certain male sergeant.

Judge Tjoflat concurred in part and dissented in part, having dissented in the first panel’s hearing of the case. This time, he was “now convinced that [the plaintiff] couldn’t work in the police department building at all.” Responding to the majority’s footnote that this was a cat’s paw case, Judge Tjoflat pointed out that the final decision maker was not the chief but the city manager.

He added some facts that the majority had not highlighted: the doctor advised that neither the shock nor the spray should be used either on or near the plaintiff; when she appealed the termination decision to the city manager and presented evidence at a hearing represented by counsel, her sole argument was that she should have been excused from being exposed to shock or spray. This led Judge Tjoflat to conclude that the plaintiff was not qualified, because even if the majority was right that receiving spray or shock was not an essential job function, it was still essential to be around others using such weapons. And so “the Achilles’ heel of [his] colleagues’ reasoning” was that the plaintiff was not qualified under any construction of the detective position, even such positions as may constitute a reasonable accommodation.

The gender and racial discrimination claims would fare no better under Judge Tjoflat’s analysis, which again pointed out the majority’s failure to look at evidence related to the city manager, identified in the employee handbook as the only one with authority to terminate, and with whom the plaintiff had an in-person hearing. After examining the evidence presented through counsel directly by the plaintiff to the city manager who affirmed the decision to terminate her, “[e]verything else—the department’s arbitrary and pretextual conduct, the supervisor’s sexist comment, and the comparators—is noise.”

Posted by Keith Emanuel.

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