United States District Court, E.D. Arkansas, Western Division
WILLIAM R. DOWNING, JR. PLAINTIFF
DEPARTMENT OF FINANCE AND ADMINISTRATION, an Agency of the State of Arkansas; BOB HAUGEN and DAVID JUSTICE, Both in their Individual and Official Capacities DEFENDANTS
Marshall Jr. United States District Judge.
Arkansas has a sideline in surplus personal property-office
furniture, vehicles, computers, cameras, and all kinds of
things used in state government. Rick Downing worked for the
Department of Finance and Administration handling,
redistributing, and selling this property. At first his
position involved stocking the warehouse, inspecting
property, and sometimes driving across the state in delivery
trucks. His responsibilities changed, though, when he took on
internet-based sales while filling in for a retiring
co-worker. This work took some time away from his
warehouse-specific duties. He did well and got positive
reviews. Internet-based sales later became Downing's
primary weekly duty.
began having hip problems around the time he started working
for the Department. Early on, he alerted his manager that
eventually one or both of his hips would need replacing. From
2011 to 2014, his hip problems worsened. Downing's
internet-based duties, which he says totaled about 60% of his
weekly time before leave, were undoubtedly easier on his hips
than when the Department had him working mostly (or entirely)
in the warehouse. Even with his primarily web-based work
schedule, a double hip replacement became necessary, and
Downing requested, and was granted, twelve weeks of FMLA
Downing was on leave, the Department trained another surplus
property agent, one Kelly, to fill in. Kelly went about the
same tasks differently, spending less time at the desk than
Downing did. The Department thought this was more efficient,
and was pleased with Kelly's work. So, when Downing came
back from leave, the Department told him he would be working
on the new schedule-Downing would rotate with Kelly, on a
week-on, week-off basis between the warehouse and web duties.
The new schedule also ensured that two people were trained on
the internet part of the job, in the event one wasn't
available. After Downing said his hips wouldn't allow him
to work the new schedule, the Department asked him to get a
doctor's release clarifying his limitations and approving
the new schedule. He couldn't. His doctor said the best
Downing could do was work in the warehouse two days a week,
not the four or five days in a row required by the new
schedule. The doctor also said Downing couldn't lift more
than fifty pounds. These were permanent restrictions. The
Department, wanting to keep the new, supposedly more
efficient schedule, told Downing he couldn't perform the
essential functions of his job with his restrictions, and
has sued, claiming the Department violated the Americans with
Disabilities Act, the Rehabilitation Act, and the Family and
Medical Leave Act. (Early in the case, the Court dismissed
Downing's Arkansas Civil Rights Act claim without
prejudice. No. 24.) The ADA and Rehab Act claims are
analyzed the same way; cases about each statute are
instructive on the other one. Randolph v. Rodgers,
170 F.3d 850, 858 (8th Cir. 1999). Citing these two laws,
Downing says the Department discriminated against him because
of his disability, failed to reasonably accommodate his
disability, and retaliated against him for seeking an
accommodation. Citing the FMLA, he claims that the Department
retaliated and discriminated against him for taking protected
leave. Downing seeks partial summary judgment on three
particular issues; and the Department says, in a motion for
summary judgment and a supplemental motion, that it should,
for various reasons, win the whole case as a matter of law.
The best way to untangle things is to analyze the
parties' disputes by issues: Downing's runs at
judgment first; then FMLA issues; next, some threshold points
about the Rehab Act and the ADA; and, finally, the deeper
Rehab/ADA issues. Long story short: the core of this case
needs a trial.
Downing isn't entitled to judgment as a matter of law on
any issue. First, he didn't face a blanket exclusion
under the ADA. The Department made an individual inquiry into
his hip problems and resulting work restrictions. School
Board of Nassau County, Florida v. Arline, 480 U.S. 273,
287-89 (1987). The Department doesn't have a policy
requiring full doctor releases. Taking the facts in the light
most favorable to the Department, it met with Downing four
times to discuss his abilities and limitations. No. 37
at ¶¶ 23, 27, 29, 40, 41. The
decision to let him go, based on these partly disputed
conversations, was an individualized one. Second, Downing
isn't entitled to summary judgment on his claim for
failure to reinstate under the FMLA. The record is unsettled;
and a jury needs to decide what the specifics and essential
duties of his job were-both before and after his leave. While
the Department says it intended him to return to the same
job, with the same pay, same title, and same minimum
requirements, Downing says that, on the Kelly schedule, his
job was different. 29 U.S.C. § 2614(a)(1)(A) & (B).
Third, no change in job duties-real or perceived-was made to
interfere with, or because of, Downing's FMLA leave
rights. 29 U.S.C. § 2615. There's no question that
the Department granted his leave willingly; and nothing of
record shows that anyone tried to persuade him not to take
his leave. Pulczinski v. Trinity Structural Towers,
Inc., 691 F.3d 996, 1007 (8th Cir. 2012).
of Downing's three FMLA claims fail as a matter of law.
First, the Department didn't interfere with Downing's
FMLA rights. Downing requested leave, got it, and then came
back to work. He wasn't discouraged from taking leave or
denied any entitlements. Ibid. Second, the
Department didn't retaliate against him for taking his
protected leave. His absence provided an occasion: it created
circumstances wherein the Department could try something new.
It did. Downing's firing was, of course, an adverse
employment action; but there's no evidence that he was
fired because he took leave. Wierman v. Casey's
General Stores, 638 F.3d 984, 999-1000 (8th Cir. 2011).
The causation facts point only in one direction: his
post-return restrictions and the new schedule.
failure-to-reinstate claim, though, is for the jury. There
are material disputed facts. It's clear that
Downing's title and pay were the same when he returned
from leave. And he had to work in the warehouse some and had
some web duties. The skills necessary for each slice
didn't change. But it's also clear that Downing's
schedule was different when he came back. The record goes
both ways about whether Downing, working the modified
schedule, was restored to an equivalent position under 29
U.S.C. § 2614(a), or to a different position where
"the job duties and essential functions of the newly
assigned position [were] materially different from
[Downing's] pre-leave position." Cooper v. Olin
Corporation, Winchester Division, 246 F.3d 1083, 1091
(8th Cir. 2001). The post-leave position didn't have to
be identical, only substantially similar in skill, effort,
responsibility, and authority. 29 C.F.R. § 825.215;
Cooper, 246 F.3d at 1091-92. Deciding the material
facts here is the sole FMLA issue for trial. If the jury
concludes that the positions were equivalent, then the
Department isn't liable under the FMLA for firing Downing
if it decided he couldn't do the job's essential
functions. Spangler v. Federal Home Loan Bank of Des
Moines, 278 F.3d 847, 851 (8th Cir. 2002). The
regulations acknowledge that these circumstances may raise an
ADA issue, but not an FMLA issue. 29 C.F.R. §
individual-capacity FMLA claims against Justice and Haugen
drop out in any event. If the position was equivalent, then
no FMLA violation occurred, so the individual claims fail.
But, if Downing wasn't reinstated to a substantially
similar position, then Justice and Haugen are entitled to
qualified immunity. The FMLA reinstatement law is not so
clearly established that a reasonable manager in Justice and
Haugen's place would have known he was violating that
law. Makers v. Harper, 12 F.3d 783, 785-86 (8th Cir.
1993); Sexton v. Martin, 210 F.3d 905, 909-10 (8th
Cir. 2000). The merits are close: The need for a trial to
resolve whether there were material differences in the
pre-leave and post-leave positions shows the reasonableness
of Justice and Haugen's belief that each was acting
within the law.
Department* is partly right and partly wrong in its
supplemental push for judgment as a matter of law.
Downing's objections to the Court reaching the merits of
these belated points are overruled. The extended briefing
allowed, and the trial continuance, eliminate any prejudice
in the arguments' tardiness. And these are threshold law
issues about the Rehab Act and the ADA that could be raised
at trial. Better to take them up now.
first. Defendants concede, No. 75 at 3 n.2, that the
Rehab Act doesn't require exhaustion. Miener v.
Missouri, 673 F.2d 969, 978 (8th Cir. 1982). The ADA
does. Randolph v. Rodgers, 253 F.3d 342, 347 n.8
(8th Cir. 2001). It's undisputed that Downing didn't
exhaust his ADA retaliation claim with the EEOC. No.
64-1. So the Department prevails on that point as a
matter of law.
the Department's new no-sole-cause attack on all
Downing's Rehab Act claims. This attack fails, though
without prejudice to what the proof shows at trial. All but
one of the FMLA claims has passed out of the case in the
Defendants' favor. The law allows any plaintiff to pursue
'Downing's ADA/Rehab Act claims are pleaded against
Haugen and Justice only in their official capacities. They
and the Department are one in the Court's analysis.
alternative claims. And the Court declines to hold that
Downing's two unsuccessful FMLA claims undermine his
Rehab Act claims as a matter of law. Downing is right,
moreover, when he responds that his alleged disability may or
may not have been the sole cause of any Department action.
The conclusion will depend on the proof at trial.
Department isn't entitled to judgment as a matter of law
on Downing's Rehab/ADA claims. The Court discusses these
overlapping claims together. Material disputed facts exist on
discrimination, accommodation, and retaliation.
threshold issue on the first two claims is actual disability.
The proof here leans hard in Downing's direction. As he
points out, the Department's authority is outdated
because Congress amended the ADA in 2008, loosening the legal
standard. Summers v. Altarum Institute, Corp., 740
F.3d 325, 329 (4th Cir. 2014) discusses the statutory and
regulatory changes made after Toyota Motor Manufacturing,
Kentucky, Inc. v. Williams,534 U.S. 184 ...