Funderburg v. City of Pine Bluff

          OPINION AND ORDER

          KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE

         Before the Court is a motion for summary judgment filed by defendant City of Pine Bluff, Arkansas (“Pine Bluff”) (Dkt. No. 7). Plaintiff Jeremy Funderburg responded in opposition, and Pine Bluff replied (Dkt. Nos. 15, 21). Also, by prior Order, this Court permitted Pine Bluff to amend its motion for summary judgment (Dkt. No. 29). Pine Bluff’s amended motion for summary judgment is pending (Dkt. No. 31). Mr. Funderburg responded in opposition to the amended motion (Dkt. No. 35). Pine Bluff replied (Dkt. No. 39). For the reasons that follow, the Court grants Pine Bluff’s motion for summary judgment and amended motion for summary judgment (Dkt. Nos. 7, 31).

         In his complaint, Mr. Funderburg brings claims against Pine Bluff under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101; Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehabilitation Act”); the Arkansas Civil Rights Act of 1993 (“ACRA”), codified at Ark. Code Ann. § 16-123-101, et seq.; and the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq., and he brings an illegal exaction claim. Pine Bluff seeks summary judgment on all of Mr. Funderburg’s claims.

         I. Factual Background

         Unless otherwise noted, the following facts are pertinent to Mr. Funderburg’s claims in dispute, taken from Mr. Funderburg’s response, and what this Court construes as his supplement response, to Pine Bluff’s statement of uncontested material fact and statement of additional material facts (Dkt. Nos. 17, 37), or taken directly from record evidence presented to the Court.

         A. Injury, Surgeries, And Restrictions

         Mr. Funderburg came to work at the Pine Bluff Police Department on March 21, 2008 (Dkt. No. 37, ¶ 1). In 2010, Mr. Funderburg was in a non-work-related accident in which he injured his neck and spine (Id., ¶ 5). Mr. Funderburg had a first surgery on his neck on August 17, 2016, after which he was off from work for a full month, and then he was told that he would have to see another doctor for further treatment of his condition (Id., ¶ 6). Mr. Funderburg underwent a second surgical procedure in about mid-November 2016, ultimately resulting in the fusion of his cervical and thoracic spine from C1 through T5 (Id., ¶ 7).^[1] On January 4, 2017, the Mr. Funderburg’s physician, Dr. Noojan Kazemi, released him to return to work on light duty (Id., ¶ 8). The Court notes that this release, by its terms, restricts Mr. Funderburg’s activities for one month (Dkt. No. 9-1, at 91).

         Mr. Funderburg brought the note from Dr. Kazemi to Ivan Whitfield, Acting Chief of Police (“Chief Whitfield”) (Dkt. No. 37, ¶ 9). According to Mr. Funderburg’s affidavit, Lieutenant Ralph Isaac and Assistant Chief Kelvin Sergeant were also present (Dkt. No. 15-1, at 1). According to Mr. Funderburg’s deposition, Chief Whitfield said, “the letter wasn’t good enough. It didn’t have enough information.” (Dkt. No. 9-1, at 38). In response, Mr. Funderburg contends he said to Chief Whitfield, “I will call my doctor and you all can talk to him. I said, I can’t tell him what to put on that letter.” (Id.). Lieutenant Isaac then said, “[W]e already tried. [The doctor] won’t tell us nothing.” (Id.). According to Mr. Funderburg’s affidavit, Chief Whitfield “had an abrupt and unpleasant manner with [Mr. Funderburg] in terms of his tone, rapidity of speech, facial expression and body language. It was clear that he was angry with [Mr. Funderburg].” (Dkt. No. 15-1, at 1). Mr. Funderburg also states in his affidavit that Chief Whitfield “said he needed a note and [Mr. Funderburg] asked to go to their doctor. The Chief said something to the effect that . . . it was on [Mr. Funderburg].” (Id.). Mr. Funderburg contends that he said okay and then left (Dkt. No. 37, ¶ 9).

         Mr. Funderburg received two notes from physicians describing his physical limitations. One note from Dr. Scott Schlesinger, which is not dated but bears a facsimile mark of January 24, 2017, states:

This patient underwent a posterior cervical decompression and fusion on

08/17/2016.

The patient may return to his job at the police department in a desk job capacity only.

Sedentary Work: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently or constantly to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time but may involve walking or standing for brief periods of time, Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

(Id., ¶ 10; Dkt. No. 9-4).

         Mr. Funderburg also had Dr. Nancy Williams, Mr. Funderburg’s family doctor, fill out paperwork outlining his physical limitations (Dkt. No. 37, ¶ 11). That document also bears the facsimile mark of January 24, 2017 (Id.). Dr. Williams stated with regard to Mr. Funderburg’s impairments that he: “Can’t bend neck. Can’t sit for more than 1 [hour]. Can’t turn left or right.” (Dkt. No. 9-5, at 1). She also stated that Mr. Funderburg: “Can’t do job as vice narcotics detective. Couldn’t defend self.” (Id., at 1). Further, she opined that with regard to Mr. Funderburg’s job functions that he: “Can’t turn neck. Can’t afford for there to be any trauma to neck. Couldn’t drive police car. Couldn’t be in pursuit. Couldn’t apprehend a criminal.” (Id., at 2). She indicated that Mr. Funderburg is limited to lifting no more than 20 pounds and that he cannot walk more than 15 minutes at a time (Id., at 1). She suggested that he not come into contact with criminals (Id., at 2). Finally, her recommendation was: “Please provide a desk job for patient.” (Id.).

         Dr. Williams also wrote a note dated January 24, 2017, ^[2] regarding Mr. Funderburg’s physical limitations:

Mr. Funderburg, after two neck surgeries and a rod from C1 to T5 cannot perform the duties of a vice and narcotic detective. Any further injury to his neck could paralyze him. He is able to do a desk job and is very willing to do so. It is our hope that you can accommodate Mr. Funderburg with a job that will not put him at risk.

(Dkt. No. 9-1, at 90).

         B. Temporary Light Duty

         The Pine Bluff Police Department has a Temporary Light Duty Policy (Dkt. No. 37, ¶ 12). The policy states, in relevant parts:

III. DEFINITIONS

ELIGIBLE PERSONNEL: For purposes of this policy, any full-time sworn member of the Pine Bluff Police Department suffering from medically certified illness or injury requiring treatment of a licensed health-care provider and who, because of injury or illness is temporarily unable to perform the regular assignment but is capable of performing alternative assignments.

IV. PROCEDURES

A. GENERAL PROVISIONS . . .

3. No. specific position within this agency shall be established for use as a temporary light- duty assignment, nor shall any existing position be designated or utilized exclusively for personnel on temporary light duty.

4. Light-duty assignments are strictly temporary and normally should not exceed six months in duration. After six months, personnel on temporary light duty who are not capable of returning to their original duty assignment shall:

a. Present a request for extension of temporary light duty, with supporting documentation, to the chief executive officer or his designate; or

b. pursue other options as provided by employment provisions of this agency or federal or state law.

(Id.; Dkt. No. 9-6, at 1-2).

         According to his deposition, Mr. Funderburg took his doctors’ notes to Chief Whitfield who stated to Mr. Funderburg that “[t]here’s no such thing as a light duty job where you will not be at risk.” (Dkt. No. 37, ¶ 13; Dkt. No. 9-1, at 45). Mr. Funderburg admits that he took his notes to Chief Whitfield, that Chief Whitfield claimed there were no light duty jobs, and that he worked at the telephone reporting unit (“TRU”) for a month (Dkt. No. 37, ¶ 13). While Mr. Funderburg worked the TRU job at that time, Pine Bluff had someone drive to pick him up for, and take him home from, work (Dkt. Nos. 9-1, at 52; 15-6, at 1). Mr. Funderburg denies that there were no light duty jobs available that he could do (Dkt. No. 37, ¶ 13). He contends that there was the TRU job, the internal affairs (“IA”) job, and the evidence room (“Evidence”) job (Id.). Further, he asserts that the policy allowed for six months (Id.).^[3] According to his affidavit, Mr. Funderburg was informed “when [he] went for [his] surgery” that he “had the IA job, ” which “is a light duty job.” (Dkt. No. 15-1, at 1). That parties dispute whether this offer was made and, if so, by whom. Mr. Funderburg acknowledges that some of his limitations might make it a little more difficult or cause Mr. Funderburg to do the job in a different way than a healthier person, but Mr. Funderburg contends that he could do these jobs (Dkt. No. 37, ¶ 13). Mr. Funderburg further states in his affidavit: “I have never, ever seen or heard of IA being called for an officer needs assistance or to a crime scene. I knew who the IA people were . . . and never saw them show up to anything.” (Dkt. No. 15-1, at 1). He adds that this is also true of the Evidence job and administrative team (Dkt. No. 37, ¶ 13). In his affidavit, Mr. Funderburg also states that “[t]he IA job had not been filled at this time.” (Dkt. No. 15-1, at 1).

         Mr. Funderburg represents that, in response to the Equal Employment Opportunity Commission (“EEOC”), Pine Bluff represented that Mr. Funderburg “was advised that civilian employment was a possibility. . . if he was offered a non-uniformed position in TRU, ” a division of the Pine Bluff Police Department (Dkt. No. 37, ¶ 13). Mr. Funderburg maintains that Pine Bluff told the EEOC that “[h]e declined the position because he was not able to accrue the additional time (eight years) needed for him to tire under the LOPFI system.” (Id.). In his response, Mr. Funderburg represents that he recalls the conversation about TRU but that his response was that he would take the job and that Chief Whitfield said he could have the job but “then did nothing.” (Id.).

         Based on the Court’s review of the record evidence with respect to the TRU job, the parties appear to agree that there were two types of TRU jobs - Pine Bluff Police Department TRU jobs and civilian TRU jobs. Mr. Funderburg requested in his March 23, 2017, letter that he be put into a TRU job with no reduction in pay, which the Court understands to be a Pine Bluff Police Department TRU job, or a TRU job with a reduction in pay, which the Court understands to be a civilian TRU job (Dkt. No. 9-1, at 101). This is consistent with Pine Bluff’s discussion of these positions in its response to the EEOC (Dkt. No. 15-6). As for the Pine Bluff Police Department TRU job, Pine Bluff represented to the EEOC that it had no “Police Officer jobs that are permanently sedentary jobs that would fit the restrictions given to [Mr. Funderburg] by his Doctors.” (Id., at 1). As for the civilian TRU job, Pine Bluff represented to the EEOC:

The command staff explored options available to Officer Funderburg. He was advised that civilian employment was a possibility if he met the requirements for the position. During one such meeting with Chief Whitfield, Assistant Chief Sergeant, Deputy Chief Elliott, and Christian Funderburg (wife) he was offered a non-uniformed position in TRU division of the PBPD. He declined the position because he would not be able to accrue the additional time (eight years) needed to enable him to retire under the LOPFI system. He would be transferred to the non-uniformed retirement system. There is no mechanism to simultaneously be classified as a civilian, while continuing to contribute to LOPFI.

Later that same day, Officer Funderburg further reviewed his options with Deputy Chief Elliot, separately. At that time, he learned that he could not simply transfer from a uniformed position to a non-uniformed position. He would be required to resign his law enforcement position and law enforcement certification. Moreover, it was reiterated that he would not be able to continue under the LOPFI retirement system.

(Dkt. No. 15-6).

         Mr. Funderburg describes these options in his deposition, as well (Dkt. No. 9-1, at 56-61).

         Specifically, in regard to being offered the civilian TRU job, Mr. Funderburg testified:

When it come down to it, [Chief Whitfield] said . . . he would have human resources post it. I would have to resign from the PD because they’re on a different retirement[], and he would get human resources to post it and then I – get me transferred over. He calls me on the phone – well, I call him on the phone to see if I could meet with him. He says, hey, it don’t work like I thought it does. You’re going to have to fill out an application and qualify, be able to type so many words a minute to get the job, but we’ll talk about that in our meeting. . . .

(Dkt. No. 9-1, at 62).

         Mr. Funderburg was given a job, however, for one month in the TRU. The TRU job is a job where people can come in off of the street and make complaints, and it is a sedentary office job (Dkt. No. 37, ¶ 14). When Mr. Funderburg initially came to work at the Pine Bluff Police Department the TRU jobs were given to a certified law enforcement officer who wore a police uniform to work and carried a sidearm (Id., ¶ 15). That officer still functioned as a police officer if needed (Id.). According to Mr. Funderburg’s affidavit, officers in the TRU worked a partial shift at TRU, but “even if there was a call out for officer needs assistance, [officers working TRU] did not leave.” (Dkt. No. 15-1, at 2). When Mr. Funderburg was given the job in the TRU, he was aware that people who had been injured sometimes worked that job as light duty on a temporary basis (Dkt. No. 37, ¶ 16). When Mr. Funderburg worked the TRU job, it was a light duty job, and he was not allowed to wear a sidearm while performing that job (Id., ¶ 17). At one point, Mr. Funderburg was told that he was going to be moved to the night shift in the TRU, to which Mr. Funderburg replied that he could not do that because he could not carry a gun or defend himself (Id., ¶ 18). Mr. Funderburg also stated that he had already had to deal with someone involved in a homicide and someone who had become irate (Id.).

         C. Sick Time, Vacation Time, and FMLA

         Mr. Funderburg then met with Chief Whitfield who told him that he would be paid for his sick time and his vacation time and that he should try to get his retirement and be humble (Id., ¶ 19). According to Mr. Funderburg’s affidavit, Chief Whitfield “did not say this in [a] friendly [manner], he was angry.” (Dkt. No. 15-1, at 2). Mr. Funderburg avers that Chief Whitfield said go home, take your sick and your retirement, and that he thought Mr. Funderburg “would be more humble” (Id.).

         After Mr. Funderburg used up his sick time and his vacation time, he had another meeting with Chief Whitfield, during which Chief Whitfield advised Mr. Funderburg that he should take FMLA leave if he could not come back to work as a police officer (Dkt. No. 37, ¶ 20).

         Mr. Funderburg had a meeting on March 23, 2017, with Chief Whitfield (Id., ¶ 21). On March 28, 2017, Mr. Funderburg sent a letter to Chief Whitfield and Vickie Conaway, Human Resources Director, describing his March 23, 2017, meeting with Chief Whitfield, in pertinent part:

I reported to work on Thursday, March 23, 2017, and met with Chief Whitfield, I was immediately accused of “playing with” Chief Whitfield. I was then accused of being out of uniform, but that was my last uniform I was required to show up for work in, and the last unit I was assigned to. I was then accused of showing up to work without a release. I had previously given a release. I was then attacked as though I had misused sick time, I had not, I had done as Chief Whitfield instructed, because he had told me to use up my sick time and vacation. Furthermore, I do not see how I would not be entitled to sick leave if I was not being allowed to return to work based on my health problems. Then Chief Whitfield told me I was going to relieve myself of my duties. The Chief then claimed that he had no job for me. I was then accused of having a bad attitude and needing to be humble. The Chief then started saying things like I should do what I had to do, and he would do what he had to do. I asked If he wanted me to go to my doctor, and he said he wanted me to do what I wanted to do. He started saying things like he was going to make me fire myself. Now Chief Whitfield claims there is no job. During this meeting, the Chief stood over me, was angry, shook his finger at me, and threatened me by implying I was going to get myself fired. It is still not clear what I need to do. Chief Sergeant tried to guess, but was not sure, other than that I needed a total clearance letter and that I would probably be fired if I did not get one. They asked me what to do. Chief Whitfield just left. I was told to report the next morning.

(Dkt. No. 9-1, at 98-99).

         Mr. Funderburg states in his affidavit:

My letter accurately describes this meeting. . . . A day or two before the meeting, I called Whitfield. Whitfield told me I could do the TRU position. I said [I] would. He never gave me that. When I arrived, Whitfield accused me of showing up out of uniform to work at his PD and said that I needed to write a memo. At the Pine Bluff PD, when a supervisor tells you something that like, in a situation like that, it means you are in trouble. Whitfield was in my face and was so angry he was spitting in my face as he talked. I told him that unless I had been transferred and didn’t know it, what I was wearing was appropriate for the last job I had, and so was considered to be showing up in uniform. He said he would make me fire myself. He said I had a bad attitude and needed to be humble. He stood over me and shook his finger at me. He walked out of the meeting and said that he had to go to another meeting. Right after I left the meeting I went to my food truck and saw him eating lunch at a nearby restaurant. Apparently he had a meeting with a piece of fish. He attacked me as though I had misused my sick time, and he told me to use up both vacation and sick time, and there was no question of my health problems being real. They had three notes. His tone in that meeting was angry and hateful. That came though in tone of voice, body language, facial expressions, emphasis on words and how quickly he spoke.

(Dkt. No. 15-1, at 2; see also Dkt. No. 37, ¶ 21).

         Mr. Funderburg received a letter signed by Chief Whitfield and ...