JACQUELINE LEWIS, Plaintiff - Appellant, versus CITY OF UNION CITY, GEORGIA, CHIEF OF POLICE CHARLES ODOM, in his official and individual capacities, Defendants - Appellees.
No. 15-11362
IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
(August 15, 2019)
D.C. Docket No. 1:12-cv-04038-RWS; [PUBLISH]
Before TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN,* District Judge.
Appeal from the United States District Court for the Northern District of Georgia
* The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of New York, sitting by designation.
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
Ms. Lewis here contends that her discharge reflected unlawful disability and/or racial or gender discrimination. She seeks back pay, damages, and reinstatement.
I. FACTS
A. Ms. Lewis‘s Medical Condition
Jacqueline Lewis joined the UCPD as a police officer in 2001. 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. 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.”
After taking the month of February 2009 off, Lewis returned to full, active duty on March 2, 2009. When she started back, her lieutenant, Jerry Hester, told her that detectives did not respond directly to calls but that they waited to be called out specifically. Hester testified that he assigned “children and women crimes” to the “lady” detectives and gave “the more aggressive stuff” to himself or Sergeant Cliff McClure.
B. UCPD‘s New Taser Policy
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
“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 Training
Similar to Taser certification, officers certified to use pepper-spray required training which involved exposure to pepper spray. Lewis previously had been exposed to pepper spray when she was at the police academy, but was not certified in its use. On June 14, 2010, the department therefore scheduled Lewis for pepper-spray training three days later, on June 17, 2010.
Ms. Lewis was concerned that her prior heart attack might increase her risk of injury from a Taser shock or exposure to pepper spray 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, especially with regard to the Taser shock, 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 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.
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 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. Nor did it specify any date by which the FMLA paperwork had to be completed. 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 was on paid leave until she 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 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 while
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 or to have anyone else from the department contact Dr. Harris. 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 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 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
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 or OC training while retaining her job, and (3) had lied about Dr. Harris‘s unavailability until July 7. We discuss additional possibilities below.
G. Administrative Appeal
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. OTHER PROCEEDINGS
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
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.
The second comparator was Patrol Officer Walker Heard, a white man who failed a physical fitness test. Heard was placed initially on leave without pay for 90 days,
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 appealed from that order and from the judgment entered upon it.
On December 15, 2017, this panel issued an opinion affirming in part and reversing in part the district court‘s judgment. We affirmed to the extent that the judgment dismissed the
On June 28, 2018, the full Court vacated our panel opinion and ordered that the case be reheard en banc4 “to clarify the proper standard for comparator evidence in intentional-discrimination cases.”5 On March 21, 2019, the en banc Court held that the appropriate standard for such evidence is whether the proposed comparators are “similarly situated in all material respects.”6 Applying this standard to Ms. Lewis‘s case, the Court determined that she failed to make out a prima facie case under McDonnell Douglas because she and her proffered comparators were not so situated.7 It then remanded to this panel for proceedings consistent with its opinion.8
Neither Ms. Lewis‘s ADA claims, nor her “convincing mosaic” theory of liability was considered by the en banc Court. Those claims and any other pending matters
matters was vacated when en banc review was granted, it now is incumbent upon us to restate and, as appropriate, modify or amplify our views on them.
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.”
B. The Disability Discrimination Claim
Under the Americans with Disabilities Act (the “ADA“),
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.
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
An individual who is “actually disabled” is one with “a physical or mental impairment that substantially limits one or more major life activities.”
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.” Mazzeo, 746 F.3d at 1268 (quoting
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 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
b. Ms. Lewis has produced evidence sufficient to raise a genuine issue of fact on whether she was “regarded as” disabled.
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.”
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 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 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
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 position that such individual holds or desires.”
“‘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
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]
In these circumstances, a jury would be justified in concluding that receiving a Taser shock or direct exposure to OC spray was not an essential function of Ms. Lewis‘s job, in which case it would follow that she was a “qualified individual.”
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.11
As an initial matter, there was evidence that Ms. Lewis‘s doctor‘s advice with respect to OC spray exposure was not a factor in the city manager‘s thinking and would not have mattered in any case. When asked if the fact that Assistant Chief Brown had spoken to Ms. Lewis‘s doctor following the termination and that the doctor was “not concerned about the OC spray” had come up in the administrative appeal, Mr. Rapson said that it had not. When asked if this would have affected his decision in any way, he said that it would not because “we were really there about whether every officer was going to be tasered or not tasered.”
This exchange exposes the other important flaw in the dissent‘s argument: There is ample evidence in the record demonstrating that Ms. Lewis could withstand the type of indirect exposure to OC spray that would allow her to work inside of the police department building if that option had been made available to her. In the conversation with Assistant Chief Brown after he fired Ms. Lewis, Dr. Harris reiterated only the recommendation that she not be exposed to a taser shock and said that she was not as concerned about Ms. Lewis being exposed to OC spray. Furthermore, the FMLA paperwork submitted by Dr. Harris stated only that Ms. Lewis “should not have a Taser used on her secondary to previous cardiac history,” and contained no mention of any OC exposure limitations. We decline to engage in the fact finding that would be required to accept the dissent‘s argument that Ms. Lewis‘s medical condition prevented her from being in the police department building.
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
“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.”
“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
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
C. Race and Gender Discrimination Claims
Ms. Lewis alleges also sex and race discrimination under Title VII, the Equal Protection Clause, and
As discussed previously, the en banc Court determined that Ms. Lewis failed to establish a prima facie case of intentional discrimination under the burden shifting framework of McDonnell Douglas because her chosen comparators were not similarly situated in all material respects. That ruling, of course, is binding upon us. There is no occasion to discuss it further. But that determination does not foreclose altogether Ms. Lewis‘s race and gender discrimination claims because “establishing 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 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.
First, 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
Second, there is ample evidence suggesting that the UCPD‘s stated reasons for firing Ms. Lewis were pretextual. As explained in Judge Rosenbaum‘s opinion, the UCPD offered several nondiscriminatory reasons for its firing of Ms. Lewis, and Ms. Lewis alleged that each was pretextual. A plaintiff can show pretext by: (i) casting sufficient doubt on the defendant‘s proffered nondiscriminatory reasons to permit a reasonable fact finder to conclude that the employer‘s proffered reasons were not what actually motivated its conduct, (ii) showing that the employer‘s articulated reason is false and that the false reason hid discrimination, or (iii) establishing that the employer has failed to clearly articulate and follow its formal policies.15
One reason offered by defendants for Ms. Lewis‘s firing is that her medical condition was permanent. There is evidence, however, suggesting that the department believed either that Ms. 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 stressed that she had been cleared for full duty without restrictions after her heart attack and emphasized 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 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 at least arguably evidenced disbelief of Ms. Lewis‘s
The UCPD contends also that Ms. Lewis was fired: (i) for being absent without leave as a result of her paid leave having expired at the time of her termination, and (ii) because she failed to timely file her FMLA paperwork. Substantial evidence exists to cast doubt on these alleged motivations for Ms. Lewis‘s firing.
As explained above, the UCPD placed Ms. Lewis on administrative leave on June 17 until such time that her physician released her to continue working. Ms. Lewis again was informed on July 1 that she would not be permitted to return to work until such time as she was medically cleared by her doctor to do so. Ms. Lewis was in regular contact with her superiors over the first week of July to let them know that Dr. Harris was on vacation and that she had scheduled an appointment on the same day of Dr. Harris‘s return. Nonetheless, she was terminated for being absent without leave on the morning after the day of her appointment with Dr. Harris and before her superiors ever spoke to or received any information from Ms. Lewis or her doctor. This all was despite the department a week earlier—and for the second time—having told Ms. Lewis that she would remain on leave until cleared by her doctor to return to work.
As to the timeliness of Ms. Lewis‘s FMLA paperwork, Judge Rosenbaum cogently explained that: (i) there is no evidence that the UCPD ever set any deadline for filing such paperwork, (ii) Ms. Lewis diligently communicated to her superiors the progress in obtaining the needed paperwork while her doctor was on vacation throughout the relevant period, and (iii) the communications between Ms. Lewis and her employers made clear that she would be taking FMLA leave at the expiration of her paid leave.16 She even was informed on July 6—two days before she was terminated—that she was “currently on FMLA leave.” At the very least, a jury reasonably could infer that the UCPD‘s “sudden imposition of an apparently previously non-existent deadline for submitting FMLA paperwork [and contradictory signals as to the status of her administrative leave] suggests a cover for discrimination.”17
Third, accepting, as we must, that Officer Heard and Sergeant McClure do not meet this Circuit‘s 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. That 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) both of these white men then were treated far more favorably than this African-American
But the evidence goes further still. The record shows that Officer Heard was offered a transfer to a position that did not require him to continue taking the fitness test that he had failed. Ms. Lewis, on the other hand, was fired without notice after 21 days of administrative leave and was “offered no such alternative [assignment] before or after.”19 Even assuming, arguendo, that Ms. Lewis‘s condition was permanent, the fact that Officer Heard was offered a transfer to a different position to which the fitness requirement did not apply while Ms. Lewis was not given any such option is itself evidence of disparate treatment that a jury is entitled to consider.
Furthermore, Ms. Lewis was fired while actively working with her doctor to ascertain the extent, if any, to which her medical condition could pose a risk in future training. She was in near daily communication with her superiors about the progress of that endeavor. Judge Rosenbaum‘s en banc opinion points out that the department had a history of working with others with heart conditions to allow them to receive a milder version of taser training than officers without heart conditions received.20
Lewis, however, was fired summarily without consideration of any potential modifications or alternatives.
Finally, there are still more tiles in this mosaic.
Jerry Hester, Ms. Lewis‘s lieutenant, testified in his deposition that he assigned “lady” detectives to “children and women crimes” and “the more aggressive stuff” to himself or Sergeant McClure—a comment that suggests unequal treatment of women on the basis of gender.
The dissent agrees “that the department‘s handling of Lewis‘s leave (and thus its decision to terminate her employment) was arbitrary and pretextual, at least when we view the record in her favor,” yet claims that “the only person whose conduct is relevant to Lewis‘s claim” is the city manager, and not the department itself. We respectfully disagree.
The record is clear that the department made the decision to terminate Ms. Lewis and did in fact terminate her on July 8. There is no question that it therefore was responsible for her “discharge or other significant change in the terms or conditions of [Ms. Lewis‘s] employment.” Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999) (per curiam).
The dissent is correct in noting that we did not “so much as mention the cat‘s paw theory,” but not because it fails to offer a “lick of support” for our position, but because it is irrelevant. This case does not involve evidence of discrimination against a non-decisionmaking employee or a situation in which the department lacked authority to fire its police officers. Assistant Chief Brown terminated Ms. Lewis on July 8. This unquestionably constituted a change in the terms of Ms. Lewis‘s employment. Ms. Lewis‘s pursuit of an administrative appeal of the department‘s decision did not break the link of causation to the department‘s
decision to terminate her. Accordingly, we do not supplant our own review of Ms. Lewis‘s termination—and any evidence of discrimination involved therein—with Mr. Rapson‘s.21
Of course, there are many conclusions a jury could reach based on the evidence presented, many of which would not support a finding of discrimination. We conclude, however, that the evidence of arbitrary personnel decisions surrounding Ms. Lewis‘s termination, the pretextual justifications offered for the same, the differing treatment of Ms. Lewis‘s white male colleagues, and other evidence coalesces into 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.
D. Municipal Liability Under Section 1983
Ms. Lewis argues that Union City is liable under
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 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 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 or OC exposure and had enlisted her doctor to provide unwarranted support in attaining that goal. Perhaps a jury might find that the mosaic of circumstantial evidence presented by Ms. Lewis supports the conclusion that her firing was a product of, or influenced by, race and/or gender. At bottom,
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,23 REVERSED in all other respects, and REMANDED for further proceedings consistent with this opinion and the Court‘s en banc opinion.
TJOFLAT, Circuit Judge, concurring in part and dissenting in part:1
When the panel first heard this case, I dissented with respect to its treatment of Lewis‘s claims under the
As to the disability-discrimination claim, I argued among other things that Lewis had failed to prove that she was a qualified individual, which is a necessary element of her prima facie case. See Lewis, 877 F.3d at 1021-22 (Tjoflat, J., dissenting). I agreed 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.” Id. at 1022. The detective position, after all, “requires working with other officers who carry and use such weapons.” Id. I explained that “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.” Id.
As to the race- and sex-discrimination claim, I saw two flaws with the Majority‘s reasoning. Lewis‘s two comparators were legally insufficient, thus precluding her from proving a prima facie case.3 Id. at 1022-23. Moreover, Lewis had not painted a convincing mosaic of circumstantial evidence. Id. at 1023. I agreed with the Majority that the record contained sufficient evidence of arbitrary and even pretextual conduct by the police department. Id. But it contained no evidence of intentional discrimination. See id. (“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.).
This Court vacated the panel‘s decision and reheard the case en banc “to clarify the proper standard for comparator evidence in intentional-discrimination cases.” Lewis v. City of Union City, 918 F.3d 1213, 1220 (11th Cir. 2019) (en banc). The
Today, I am forced to dissent again. In so doing, I elaborate on my prior reasons for dissenting and offer new grounds for why the Majority errors on this rehearing.
As to the disability-discrimination claim, I continue to believe that Lewis‘s heart condition, and thus her inability to be exposed to a shock or a spray, prevents her from working as a police detective. After reviewing the record, however, I‘m now convinced that she couldn‘t work in the police department building at all. This irrefutable fact matters because the Majority insists that the essential functions of the position are open to reasonable disagreement and thus are questions of fact. Maybe so. What‘s not open to reasonable disagreement, however, is that an essential function of being a police officer is, from time to time, being in the police department building. Because Lewis cannot do even that, she is not a qualified individual, and her claim accordingly fails as a matter of law.
Turning to the race- and sex-discrimination claim, I maintain my prior position that the record allows no inference of discriminatory intent on the part of the chief or of anyone else at the department. As it turns out, though, that‘s not the relevant question. The law requires us to analyze the intent of the person who terminated Lewis. Here, that person is not the chief—or for that matter, anyone at the department—but the city manager. And regardless of what inferences the record might allow about the department, the record allows absolutely no inference of discriminatory intent by the city manager.
I take the two claims in turn. But first, I briefly highlight relevant facts for this appeal that I see as underemphasized by the Majority.5
I.
When Lewis first felt concern about being subjected to a shock or a spray due to her previous heart attack, she reached out to her primary-care doctor. The doctor then wrote to offer the department her advice. That advice was unambiguous: Neither the shock nor the spray should be used “either ‘on or near’ Lewis.” See id. at 1219. “Because as a detective Lewis would inevitably be (at the very least) ‘near’ pepper spray—and under the new policy, Tasers, as well—Chief Odom concluded that the restrictions described by Lewis‘s doctor prevented her from performing the essential duties of her job.” Id.
After receiving the doctor‘s letter, the department, through the chief, placed Lewis on administrative leave until her doctor released her to “full and active duty.” As the en banc Court made clear, however, this moment was never going to come: Lewis‘s condition was definitively permanent. See id. at 1230 (observing that Lewis “suffered from what her doctor described
The power to terminate Lewis was held not by the chief, or by anyone at the department, but by the city manager, to whom Lewis appealed the department‘s decision. Pursuant to the appeal, Lewis received an in-person hearing before the city manager. At the hearing, she was represented by a lawyer and afforded the opportunity to present evidence.
Though the record could be clearer,6 the sole argument Lewis made to the city manager was that, given her condition, the department should have excused her from being exposed to a shock or a spray. So the evidence the Majority relies on today to find sufficient evidence of animus was evidence that was not presented to the city manager. This includes evidence of arbitrariness,7 pretext,8 and a sexist remark.9 The Majority also relies on the same two comparators, both white males, as evidence of animus.10 Because the events concerning these comparators occurred years after Lewis‘s appeal, the department‘s treatment of them was also evidence that was not presented to the city manager.
Recognizing that Lewis could not be exposed to a shock or a spray, the city manager ultimately affirmed the department‘s decision to terminate her. As he succinctly explained, “Obviously, everybody in the police department has OC spray. When they use it, it‘s on their clothes and they can be accidently discharged.” In other words—and this is important—Lewis‘s own doctor‘s advice was the city manager‘s sole reason for affirming Lewis‘s termination.
II.
To prevail on her disability-discrimination claim, Lewis must establish, among
I continue to agree with the Majority that whether being subjected to a shock or a spray is an essential function of the detective position is a question of fact. See Lewis, 877 F.3d at 1022 (Tjoflat, J., dissenting). What the Majority omits from its analysis, however, is that Lewis cannot even be exposed to a shock or a spray.
Though the City was under no obligation to reasonably accommodate Lewis‘s condition,11 it is worth explaining why the City would still be entitled to summary judgement even if it were. This analysis exposes the Achilles’ heel of my colleagues’ reasoning: However cautiously they wish to define the “essential functions” of the detective position, see Mazzeo, 746 F.3d at 1267-68 (quoting
Recognizing that she could not work as a detective in the field, Lewis identified two positions in the department that would accommodate her condition, one in the communications room and one in the records room. Cf. Boyle v. City of Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017) (“[W]hether a reasonable accommodation can be made for that employee is determined by reference to a specific position.” (emphasis added) (quoting Duckett v. Dunlop Tire Corp., 120 F.3d 1222, 1224-25 (11th Cir. 1997) (per curiam))). Even if these positions constituted accommodations,12 Lewis would still face an insurmountable challenge. An ADA plaintiff bears the burden of “showing that the accommodation would allow him to perform the essential functions of the job in question,” Boyle, 866 F.3d at 1289, a feat that Lewis cannot achieve.
Lewis‘s own physician recommended that the spray not be used “‘on or near’ Lewis.”13 Lewis, 918 F.3d at 1219. But both proposed positions would still expose her to the spray. As the chief explained, “every room inside the building has a common
The chief stated that the last time the spray was used in the building, his own secretary began “hacking” so badly that she had to go home for the day. The secretary, mind you, would not react to the spray any differently than you or I.14 Yet Lewis‘s reaction to the spray would be worse.
Lewis indicated that she could be affected if she merely “touch[ed] someone who‘s been sprayed.” Her doctor described exposure to the spray as a “stress-related injury” that would be caused by “any increased stress to your heart.” She then defined stress as “any physical stress, emotional stress, [or] mental stress.” And the doctor wasn‘t shooting from the hip. Before writing the letter at issue, she apparently researched the spray to understand the risks it posed to Lewis‘s health.
The Majority purports to come up with “ample evidence” that Lewis could withstand exposure to the spray—contrary to her doctor‘s letter to the department. See Maj. Op. at 27 n.10. This evidence is twofold, each bit of which supposedly entails Lewis‘s doctor contradicting her letter. First, the leave paperwork completed by the doctor, which asks for “job functions the employee is unable to perform,” listed the shock (but not the spray). And second, when she spoke to the chief on the phone sometime after sending the letter, the doctor said that the spray was “[s]till a concern, but not as much of a concern as the Taser.” To be sure, this evidence establishes that the doctor eventually qualified her letter. But reading my colleagues’ opinion, one might (falsely) conclude that the doctor walked back on her letter altogether. In fact, her position that the spray not be used on or near Lewis was unchanging:
Q: As of July 8, 2010,15 were you still recommending . . . that [Lewis] not be exposed to the pepper spray as well? Was that still your recommendation?
A: Yeah.
So try as it might to characterize my review of the record as “fact finding,” see Maj. Op. at 27 n.10, I‘ve done nothing more than observe the testimony of Lewis and of her own doctor—each of whom has effectively advised that Lewis not work in the police department building.16 If listening to Lewis and Lewis‘s doctor at summary judgment isn‘t viewing the evidence in her favor, I don‘t know what is.
Given Lewis‘s testimony, as well as that of her own doctor, the point is this: The record contains no evidence of any reasonable accommodation the City could have made for Lewis, in or out of the field. As such, she could not prove, as part of her prima facie case, that she was a “qualified individual.” See Mazzeo, 746 F.3d at 1267 (quoting
* * *
The Majority‘s reversal of the District Court on Lewis‘s disability-discrimination claim is troubling given the litany of reasons for why Lewis fails to survive summary judgment. Lewis asks this Court to accept that as a police detective, she is
With that, I turn to the Majority‘s equally troubling treatment of Lewis‘s race- and sex-discrimination claim.
III.
The en banc Court held that Lewis‘s comparators were legally insufficient to satisfy the comparator element of her prima facie case under the burden-shifting framework of McDonnell Douglas.17 Lewis, 918 F.3d at 1231. So the Majority commits itself to assembling a “‘convincing mosaic’ of circumstantial evidence,” see id. at 1220 n.6, to reverse the District Court‘s grant of summary judgment for the City. My colleagues’ principal error is analyzing evidence about the department instead of evidence about the city manager—the only person whose conduct is relevant to Lewis‘s claim.
A.
Regardless of whether a Title VII-plaintiff invokes McDonnell Douglas or presents a convincing mosaic of circumstantial evidence, the record must permit the inference of a “causal link” between the “discriminatory animus” and the “discharge or other significant change in the terms or conditions of employment.” See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th Cir. 1999) (per curiam). Normally, then, we look only to the conduct of the decisionmaker—the party with the “power to actually discharge the employee.” See id.
We deviate from this general rule when “the decisionmaker followed the biased recommendation without independently investigating the complaint against the employee.” See id. at 1332. Our cases have come to call this concept the “‘cat‘s paw’ theory” because the recommender has wielded the decisionmaker as a “mere conduit, or ‘cat‘s paw’ to give effect to the recommender‘s discriminatory animus.” See id.. The cat‘s paw theory is not an exception to general principles of causation but a specific application of them in which “the harasser is the decisionmaker,” “regardless of which individual actually signs the employee‘s walking papers.” See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1250 (11th Cir. 1998).
To invoke the cat‘s paw theory, “causation must be truly direct.” See Stimpson, 186 F.3d at 1331. “Where a decisionmaker conducts his own evaluation and makes an independent decision, his decision is free of the taint of a biased subordinate employee.” Pennington v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001). So long as the decisionmaker reaches an independent decision, then, any animus by any other actor is purged from the analysis.
Lewis‘s case is not a cat‘s paw scenario. Cf. Stimpson, 186 F.3d at 1332 (requiring a showing that “the decisionmaker followed the biased recommendation without independently investigating the complaint against the employee“). The decisionmaker who terminated Lewis was the city manager, not the chief and not anyone at the
The Majority argues that even if the city manager was the person who terminated Lewis (a proposition that seems clear as day to me), the cat‘s paw theory nonetheless applies because the city manager was supposedly a “mere conduit” for the department. See Maj. Op. at 41 n.21 (suggesting that the city manager simply rubberstamped the department‘s decision because it was “operational“). But my colleagues refuse to wrestle with the fact that this Court has never—never—applied the cat‘s paw theory when, as here, a Title VII-plaintiff is afforded a hearing, counsel, and the opportunity to plead her case to the decisionmaker. See Llampallas, 163 F.3d at 1249 (finding no cat‘s paw scenario when the decisionmaker “summoned [the plaintiff] . . . to investigate the situation,” “afforded [her] a private audience of several hours,” and “gave her the opportunity to explain the situation“); Stimpson, 186 F.3d at 1332 (same when the decisionmaker “conducted a three day hearing to investigate the charges” and when the plaintiff “was represented by legal counsel and was allowed to put on defense evidence and witnesses” during a hearing); Crawford v. Carroll, 529 F.3d 961, 979 n.21 (11th Cir. 2008) (same when the decisionmaker “reviewed [the plaintiff‘s] complaint and met with her to discuss the issues it presented“). Simply put, Lewis‘s hearing was—as a matter of law—an independent investigation that severed causation between the department and the termination.
In brief, the Majority side skirts this cat‘s paw analysis—and for an obvious reason. It wouldn‘t find a lick of support in our precedent for its decision to assess animus on the part of any person but the city manager. And as described below, the city manager is as clean as a whistle.
B.
The Majority relies on three categories of circumstantial evidence—broadly speaking, evidence at the department of arbitrary and pretextual decision-making and of comparators being treated differently. Maj. Op. at 33-39. But Lewis doesn‘t allege that the city manager acted arbitrarily, pretextually, or treated comparators differently. What‘s more, he couldn‘t have acted on this information because he didn‘t so much as know about it.
Lewis‘s heart condition, and her related need not to be shocked or sprayed, was the sole reason she presented to the city manager in opposition to her would-be termination. It is thus logically impossible to impute animus to the city manager based on facts that were not before him. Yet facts not before him are precisely what the Majority relies on. Its reliance on the comparators to establish animus is erroneous for a related reason. The comparators were treated differently not by the city manager, but by the department. Indeed, because the department supposedly afforded the comparators favorable treatment, the city manager never crossed paths with them in an appeal.
C.
One last word. In its recitation of the facts, the Majority cursorily notes Lewis‘s appeal to the city manager, the hearing, and that Lewis was represented by a lawyer and afforded the opportunity to present evidence. Maj. Op. at 13. It observes, however, that Lewis “did not present evidence” on the department‘s handling of her leave. Id. My colleagues, I suspect, feel that we should transform Lewis‘s case into a cat‘s paw scenario simply because the decisionmaker did not hear the evidence they find most probative of animus—the goings-on at the department. But Lewis faced the burden of raising the relevant issues to the decisionmaker, and her failure to present certain evidence at the hearing does not undermine the independence of the decision. See, e.g., Llampallas, 163 F.3d at 1250 (“[The plaintiff], although she had the opportunity to do so, failed to inform [the decisionmaker] . . . of the information she possessed that would have put [the decisionmaker] on notice that [the employment decision] may have been motivated by a discriminatory animus.“); Stimpson, 186 F.3d at 1332 n.2 (“We curiously note that [the plaintiff] apparently never mentioned any discriminatory motive behind the charges at her hearing before the [decisionmaker]. It seems like that would have been an ideal time and place to do so.“). Lewis‘s failure to do so does, however, negate the usefulness of that evidence to establish any animus by the decisionmaker.
* * *
The Majority pushes to the background the most significant fact relevant to Lewis‘s race- and sex-discrimination claim: the fact that she pleaded her case before someone outside the department and benefitted from the advice of counsel when she did so. Under the law, that hearing creates a blank slate for our Title VII-analysis, and the record contains no evidence to stain the slate. After hearing Lewis out, the city manager reached the more-than-reasonable decision to terminate Lewis because given her condition, she could not discharge the duties of a detective. Everything else—the department‘s arbitrary and pretextual conduct, the supervisor‘s sexist comment, and the comparators—is noise. The city manager did not himself act arbitrarily or pretextually, make the comment, or decide anything with respect to the comparators. Nor did he hear any of that evidence.
IV.
For these reasons, I would affirm the District Court‘s grant of summary judgment for the City on Lewis‘s ADA and Title VII claims. I respectfully dissent.
Notes
Q: Did you have the opportunity . . . to present information to Mr. Rapson during the meeting?
A: We did.
Q: Do you remember what you presented?
A: No, I don‘t.
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.”