Calvin WITHERS v. Leon JOHNSON, Individually and in his Official Capacity as Circuit Judge of Pulaski County Arkansas; Pulaski County, Arkansas
No. 13-2646
United States Court of Appeals, Eighth Circuit
August 15, 2014
763 F.3d 998
Submitted: April 14, 2014
mendation that Cody be discharged. Thus, the fact that Schauer did not intend to follow through on the second PIP if Prairie Ethanol‘s corporate office approved Cody‘s discharge does not create a genuine dispute whether Prairie Ethanol‘s justification is pretextual.
Finally, Cody claims that another employee, who also was supervised by Schauer and who did not have a disability, had similar performance deficiencies and was not discharged. While “[i]nstances of disparate treatment can support a claim of pretext,” Scroggins v. Univ. of Minn., 221 F.3d 1042, 1044 (8th Cir. 2000) (quoting Harvey v. Anheuser-Busch, Inc., 38 F.3d 968, 972 (8th Cir. 1994)), Cody has the burden to prove that he and the other employee were similarly situated in all relevant respects, including that the offenses were of the same or comparable seriousness, see, e.g., id.; Harvey, 38 F.3d at 972. “At the pretext stage of the McDonnell Douglas burden-shifting framework, the test for determining whether employees are similarly situated to a plaintiff is a rigorous one.” Fiero v. CSG Systems, Inc., 759 F.3d 874, 879 (8th Cir. July 17, 2014) (quotation omitted). Cody has failed to meet this burden. Cody relies on the other employee‘s infractions, including downloading movies onto a company computer, skipping mandatory meetings, and making a coworker cry, as well as the more serious infraction—which occurred years after the other infractions—of experimenting with hazardous chemicals in the workplace. However, Cody has presented no evidence that this employee had aggressively operated the plant, causing it to swing on multiple occasions and almost losing it once, which are very serious occurrences because they cause significant decreases in production. Therefore, the employee was not similarly situated because the offenses were not of the same or comparable seriousness. See Scroggins, 221 F.3d at 1044.
Accordingly, Cody has failed to raise a genuine dispute whether Prairie Ethanol discharged him because of his disability rather than because of his performance issues, and thus the district court properly granted summary judgment. See St. Martin, 680 F.3d at 1032.
III. Conclusion
For the aforementioned reasons, we affirm.
Calvin WITHERS, Plaintiff-Appellant,
v.
Leon JOHNSON, Individually and in his Official Capacity as Circuit Judge of Pulaski County Arkansas; Pulaski County, Arkansas, Defendants-Appellees.
No. 13-2646.
United States Court of Appeals, Eighth Circuit.
Submitted: April 14, 2014.
Filed: Aug. 15, 2014.
Patricia Van Ausdall Bell, AAG, Little Rock, AR, for appellee.
COLLOTON, Circuit Judge.
Calvin Withers sued Leon Johnson individually and in his official capacity as a circuit judge in Pulaski County, Arkansas, alleging violations of the Americans with Disabilities Act (“ADA“),
I.
Because we are reviewing a grant of summary judgment, we describe the facts in the light most favorable to Withers. From 2001 to 2011, Withers worked as an assistant bailiff for the First Division of the Pulaski County Circuit Court. In January 2011, Johnson replaced the previous circuit judge in that division, and Withers became an assistant probation officer under Johnson‘s supervision. According to Withers, his duties as assistant probation officer were to monitor probationers, document their compliance with court-imposed instructions, and provide reports to Johnson when probationers appeared in court. Physical exertion was rarely required, but on occasion Withers would lift objects weighing twenty-five pounds or more.
On March 17, 2011, Withers injured his back while working in the circuit court. He informed Johnson of the injury, sought medical treatment that day, and was cleared to return to work immediately with the restriction that he not lift more than ten pounds. Withers gave Johnson a copy of the medical release, and Johnson did not express any unwillingness to accommodate the ten-pound lifting restriction. Withers received further medical treatment the following week and was given additional restrictions on physical activity; each time, he provided Johnson with a copy of the medical release, and Johnson never objected to the restrictions. Finally, after an appointment on March 29, Withers‘s doctor placed him on “non-duty status.” Johnson sent Withers a letter on April 4 notifying him that he had “been placed on Family/Medical Leave as of April 1, 2011 in accordance with Pulaski County Policy.”
On the afternoon of May 10, 2011, Withers‘s doctor cleared him to return to work, this time with a twenty-five-pound lifting restriction. According to Withers, he was capable of performing his core job duties as of that date. Withers called Johnson‘s office that day and left a voice message stating in its entirety: “[T]his is Calvin Withers, give me a call back.” After receiving no response, Withers called and left another voice message on May 11: “[T]his is Calvin Withers, could you give me a call back, I left you a message yesterday, could you holler back at me.” Neither message mentioned that Withers had been cleared to return to work. Again, Withers received no response from Johnson. On May 12, Withers called Linda Liddell, an employee in the County‘s human resources department, and left her a voice message.
Johnson received a text message from the clerk that evening informing him that Withers was trying to reach him; the text message did not mention the reason for Withers‘s call. Approximately forty minutes after Withers spoke with the law clerk, he received a return phone call from Liddell, who told him that if he sent her a copy of the medical release, she would forward it to Johnson‘s office. Withers faxed Liddell a copy of the release on Monday, May 16, and she then sent a copy to Johnson‘s chambers.
In a letter dated May 16, 2011, Johnson informed Withers:
It has come to my attention that your attending physician released you to return to work on ... May 10, 2011. According to [County Personnel Policy] Art. 1 § 19.B., you are required to IMMEDIATELY provide a copy of the release to your supervisor to determine your return to work date. Employees who fail to return to work as designated are considered to have resigned. The Human Resources Office advised you of your obligation to contact your supervisor last Tuesday. As of today, you have still not contacted your supervisor and provided a copy of the release; therefore, you are considered to have resigned your position.
Withers received the letter a few days later.
Withers filed suit against Johnson and the County in the district court on September 7, 2011. He twice amended the complaint, with his second amended complaint alleging violations of the FMLA, the ADA, the Rehabilitation Act, the Age Discrimination in Employment Act, and several provisions of Arkansas law. With respect to the claims at issue in this appeal, Withers alleged that after he was cleared to return to work, Johnson and the County “failed to reinstate [him] in violation of the FMLA and retaliated against him for requesting leave.” In addition, Johnson and the County had “discriminated against [Withers] on the basis of his record of impairment, his real or perceived disability, as well as failed to accommodate him by granting him leave and terminating him and retaliated against him for taking leave,” all in violation of the ADA and the Rehabilitation Act. In his summary judgment briefing, Withers agreed to dismiss without prejudice his state-law claims against both parties, his claims under the Age Discrimination in Employment Act, and his individual-capacity claims against Johnson under the ADA and the Rehabilitation Act.
The district court granted summary judgment for Johnson and the County on Withers‘s remaining claims. The court first concluded that Withers‘s claims against the County failed because the County was not his employer. As for the complaints against Johnson, the court rejected the FMLA claims because Withers had received the leave he requested and because Johnson offered a legitimate and nondiscriminatory reason for Withers‘s termination: his failure to provide immediate notice of his ability to return to work, in violation of County policy. The court rejected the ADA and Rehabilitation Act discrimination and retaliation claims because “no reasonable juror could find that [Johnson] fired Withers because of a less onerous restriction on lifting” than the re-
strictions
Withers appeals only the grant of summary judgment in favor of Johnson. We review the district court‘s grant of summary judgment for Johnson de novo, viewing the evidence and drawing all reasonable inferences in the light most favorable to Withers, the nonmoving party. Kallail v. Alliant Energy Corporate Servs., Inc., 691 F.3d 925, 929 (8th 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.”
II.
Withers appeals the district court‘s adverse grant of summary judgment on his claims under the ADA and the Rehabilitation Act. Withers contends that Johnson unlawfully discriminated against him on the basis of a disability (his back injury) by terminating him and by failing to accommodate his disability, and retaliated against him for requesting an accommodation. Discrimination under the ADA and the Rehabilitation Act encompasses both disparate treatment because of a disability and failure to provide reasonable accommodations to a qualified individual‘s known disability. The former requires proof of discriminatory intent, while the latter does not. See Hill v. Walker, 737 F.3d 1209, 1216-17 (8th Cir. 2013); Peebles v. Potter, 354 F.3d 761, 765-67 (8th Cir. 2004). As relevant to Withers‘s claims, “decisions interpreting either the ADA or the Rehabilitation Act are applicable and interchangeable to claims under each statute.” Hill, 737 F.3d at 1216 (internal quotation omitted).
A.
Withers first argues that Johnson discriminated against him by terminating him because of his disability. The ADA prohibits “discriminat[ion] against a qualified individual on the basis of disability.”
In support of his claims, Withers argues primarily that Johnson‘s purported reason for his termination was illegitimate. Citing
Withers points out that Johnson‘s termination letter also cited another provision of County policy—concerning employees who fail to return to work as designated—that is inapplicable here. But Johnson‘s misconstruction of that portion of the policy does not suggest that his actions were motivated by discriminatory animus rather than Withers‘s failure immediately to give Johnson his medical release. Withers also points to Johnson‘s failure to return his calls as evidence of discrimination. But Withers‘s two phone messages did nothing more than request that Johnson call him back, and a failure to return two nondescript telephone messages does not support an inference of discrimination based on disability. When Johnson was presented earlier with information that Withers injured his back, it is undisputed that Johnson accommodated all of Withers‘s work restrictions without objection. Cf. Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir. 2012). No genuine issue of material fact exists for trial regarding whether Johnson discriminated against Withers on the basis of his disability.
B.
Withers also argues that Johnson discriminated against him by “not making reasonable accommodations” of his disability.
C.
Finally, Withers asserts that Johnson violated the ADA and the Rehabilitation Act by retaliating against him for requesting accommodations for his disability. The ADA provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.”
“To establish unlawful retaliation under the ADA, [Withers] must show that (1)[he] engaged in a statutorily pro-
tected
III.
Withers also argues that Johnson interfered with his entitlement to FMLA leave by requiring him to fax his medical release to the circuit court or otherwise to disclose his private medical information to personnel other than Johnson in order to return to work. An employee who takes FMLA leave is entitled, with exceptions not relevant here, to be restored to a position that is the same as, or substantially equivalent to, his position when leave began.
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The judgment of the district court is affirmed.