United States District Court, W.D. Virginia, Abingdon Division
CLAUDE M. MUMPOWER, III, Plaintiff,
CITY OF BRISTOL, VIRGINIA, Defendant.
PAMELA MEADE SARGENT, Magistrate Judge.
This matter is before the undersigned on the Defendant's Motion For Summary Judgment, (Docket Item No. 39), ("Motion"). The plaintiff has filed a response, and the defendant has filed a reply to the Motion, which is now ripe for disposition. The Motion was heard before the undersigned on June 27, 2014. A jury trial in this matter is scheduled for July 8-10, 2014, before the undersigned. The action, including the Motion, is before the undersigned magistrate judge upon transfer pursuant to the consent of the parties under 28 U.S.C. § 636(c)(1). Based on the arguments and representations presented, and for the reasons stated in this Memorandum Opinion, the Motion will be granted.
I. Facts 
The plaintiff, Claude M. Mumpower, III, ("Mumpower"), by Second Amended Complaint filed March 25, 2014, (Docket Item No. 30), sues the City of Bristol, Virginia, ("City"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000 et seq., alleging that he was discriminated against in his employment as a Bristol, Virginia, Police Officer based on his sex. Mumpower alleges that he had worked as a Police Officer for the City since November 2006. He alleges that he was terminated from his job on or about April 17, 2012, while on light-duty work due to a job injury. The Second Amended Complaint states that Mumpower was "advised by management that he has missed too much work and could not continue to work on light-duty."
The Second Amended Complaint alleges that Mumpower was, and at all times had been, satisfactorily performing his job. It also alleges that Mumpower was absent from work eight to nine weeks during the previous 12-month period due to an on-the-job injury and gallbladder surgery. The Second Amended Complaint alleges that a female employee of the City and two female Police Officers were permitted to be absent from work for medical reasons for longer periods or were given light-duty work for longer periods than Mumpower without being terminated. Mumpower alleges that he received disparate treatment by the City as a result of his sex. He further alleges that the City's discriminatory actions were intentional and deliberate.
Attached to Mumpower's original Complaint, is a Notice of Right to Sue issued by the Equal Employment Opportunity Commission on June 24, 2013. (Docket Item No. 1-2). The court's docket shows that Mumpower's original Complaint was filed with the court on September 24, 2013. (Docket Item No. 1).
In support of its Motion, the City has provided the court with Mumpower's deposition testimony, deposition testimony from Fran Eric Turner, a former Senior Sergeant with the Bristol, Virginia, Police Department, ("BVPD"), affidavit testimony from various other current and former City employees and its Answers to the Plaintiff's First Set Of Interrogatories And Requests For Production Of Documents, ("Answers to Interrogatories").
As stated above, Mumpower was employed by the City as a Patrol Officer from November 2006 through April 17, 2012, at which time he was on light-duty status due to a right knee injury incurred during a training exercise on June 21, 2010. (Docket Item No. 40-1, ("Mumpower Depo."), at 18-19, 79.) He was on medical leave from June 21, 2010, through September 1, 2010, but returned to work without restrictions on September 2, 2010. (Docket Item No. 40-5, ("Price Affidavit"), at 2.) Mumpower was off work again from October 10, 2010, to October 13, 2010, due to knee problems, and on October 30, 2010, and October 31, 2010, he called in sick. (Price Aff. At 2.) Thereafter, Mumpower was injured in an altercation and took several days of medical leave to recover. (Mumpower Depo. at 20, 49; Price Aff. at 2.) He underwent surgery on his right knee on June 13, 2011, and was out of work for 49 days, returning to light-duty work on August 1, 2011, and continuing to work in that capacity through October 13, 2011. (Mumpower Depo. at 19, 48; Price Aff. at 2.) Mumpower eventually resigned from his duties as a K-9 Officer by letter dated September 11, 2011, because he could not perform the running required by the job. (Mumpower Depo. at 25-26.) His treating physician, Dr. Testerman, released him to return to work without restrictions on or about October 14, 2011. (Mumpower Deposition at 19-20, 48; Price Aff. at 2.) Mumpower, however, was able to perform his job duties without restrictions for only about one month before having to return to light-duty status. (Mumpower Depo. at 19-20, 48.) At the time of his deposition in March 2014, Mumpower testified that his knee was "bone-on-bone, " and that it was "totally collapsed." (Mumpower Depo. at 6.)
In addition to his knee injury, Mumpower also was off of work for about four weeks during 2011 for gallbladder surgery. (Mumpower Depo. at 59-60; Price Aff. at 3.) While such a surgery normally would require only two weeks off work, it took Mumpower longer to heal because his stomach muscles are "pretty thick." (Mumpower Depo. at 60.) However, he admitted that the surgery was performed laparoscopically, and he suffered no complications. (Mumpower Depo. at 60.) William H. Price, former Chief of Police for the City, has submitted an affidavit on behalf of the City. He stated that Mumpower had used all paid and personal leave time at the time of his gallbladder surgery, and 30 hours of donated leave was approved. (Price Aff. at 3.)
By letter dated December 16, 2011, Dr. Testerman restricted Mumpower from running, stooping, bending, lifting, climbing or prolonged riding or driving in a car until further notice. (Price Aff. at 3.) Likewise, by letter dated December 19, 2011, Dr. Testerman's office requested that Mumpower be given a desk job because he was no longer fit to run, squat, lift, drive, climb or even ride in his patrol car because it did not allow him to stretch his right knee appropriately. (Price Aff. at 3.)
Mumpower's 2011 year-end employee performance review reflected that Mumpower's attendance and punctuality were rated as "1, " the lowest possible score according to Chief Price, because he did not work most of the year. (Price Aff. at 3.) Regarding his physical conditioning, the review reflected that Mumpower had been deemed by medical doctors to be unfit to be an officer. (Price Aff. at 3.)
By letter dated March 23, 2012, Chief Price advised Mumpower that the City could no longer accommodate him in a light-duty position and that the BVPD needed him to return to his normal job duties as a Patrol Officer, as the City was short-handed in meeting the law enforcement needs of the community. (Ex. 2 to Mumpower Depo.; Price Aff. at 3-4). Mumpower further was advised that, if he was unable to return to his Patrol Officer's position by April 16, 2012, his employment with the City would be terminated on that date. (Ex. 2 to Mumpower Depo.; Price Aff. at 4). As of April 17, 2012, Mumpower had been on light-duty work for about one year. (Mumpower Depo. at 23.)
By letter dated April 17, 2012, Chief Price informed Mumpower that, because he had not responded to the March 23, 2012, letter, and had not reported to regular work duties by April 16, 2012, he was terminated from his employment with the City. (Price Aff. at 4.) According to Chief Price, the required duties of a Police Officer include the ability to perform physical actions that both Mumpower and his physician stated he could not perform, and Mumpower was terminated due to his inability to perform the required duties of a Patrol Officer, not because of his sex. (Price Aff. at 4.) Chief Price denied giving favorable treatment to female officers because of their sex, and he denied discriminating against male officers because of their sex. (Price Aff. at 4.)
Chief Price testified that Mumpower's extended periods of light-duty work and frequent absences created a significant hardship on the other Police Officers who had to cover for him and raised public safety concerns, as it resulted in one less officer available for emergency calls and to patrol the streets. (Price Aff. at 4.) Fran Eric Turner, a retired Senior Sergeant with the BVPD, and Clay Robinette, a former supervisor of Mumpower, have provided sworn testimony on behalf of the City. (Docket Item No. 40-7, ("Turner Depo."); Docket Item No. 45-6, ("Robinette Aff.")). They, likewise, testified that when an officer takes light duty or sick leave for an extended amount of time, it creates a hardship for other officers, who lose vacation time, must cancel plans or who are prevented from attending training, which places more stress on the officers and hurts morale. (Turner Depo. at 48-49; Robinette Aff. at 1-2.) They stated that it also may create individual officer safety concerns because it can impact the ability to respond to calls in a timely manner or to have sufficient back-up. (Turner Depo. at 48-49; Robinette Aff. at 2.) Robinette testified that Mumpower's shift often operated with one less officer than needed. (Robinette Aff. at 1.)
According to Mumpower, Chief Price told him several times while he was on light duty that he was going to be placed in the Criminal Investigations Division, ("CID"), in some capacity, and that he was going to "take care of him." (Mumpower Depo. at 9, 11, 16, 42, 56.) However, Robin McCoy, a female, was given the position, although Mumpower did not know why. (Mumpower Depo. at 42.) McCoy, a Detective with the BVPD since January 9, 2012, and a Master Officer before that, has provided an affidavit on behalf of the City. (Docket Item No. 45-3, ("McCoy Aff.")). The only time during her 13 years of employment with the City that McCoy worked light duty was following abdominal surgery on December 6, 2011, after which she worked light duty from December 12, 2011, through January 2, 2012, a period of less than three weeks. (McCoy Aff. at 1.) The City has provided medical records to substantiate this allegation. (Docket Item No. 45-1, Ex. G). Furthermore, the City stated that McCoy was given the CID job over three other candidates, including Mumpower, because she was able to answer questions regarding criminal investigations and had shown initiative by investigating several cases on her own as an officer, instead of referring them to the CID. (Docket Item No. 45-1, ("Answers to Interrogs."), at 7-8.) Mumpower could not name any cases he had worked to completion. (Answers to Interrogs. at 8.) The City's decision to appoint McCoy to the Detective position was entirely unrelated to her gender and was based solely on her initiative and experience. (Answers to Interrogs. at 8.)
Mumpower admitted he could no longer perform the duties of a Police Officer, but he believed he could have performed the duties of a "CID position, a Gang Intel Position." (Mumpower Depo. at 44.) He maintained there was an available CID position, as well as a Gang Intel, ("GI"), position, at the time of his termination. (Mumpower Depo. at 47.) Mumpower applied for a Detective position in the CID in August 2010, but, according to Chief Price, this was not a light-duty position, as it carries the same physical requirements as the Patrol Officer position Mumpower held at that time. (Price Aff. at 2.) The City has provided a March 1, 2012, letter from Chief Price, which states he had conversations with Mumpower on that day and on February 29, 2012, in which Mumpower advised that he could not return to his position as a Patrol Officer. (Docket Item No. 40-5 at 32). Price further stated in this letter that he advised Mumpower that all Police Officer positions, including CID, fell under the same job description, and that he could not create a new position for him. (Docket Item No. 40-5 at 32).
According to Mumpower, Vicki Byrd, who could perform only light-duty work due to multiple sclerosis, ("MS"), was given a light-duty position in gang intelligence, ("GI"), until her retirement. (Mumpower Depo. at 39-40.) He did not know when she got this position, when she retired or whether she retired because of her health condition. (Mumpower Depo. at 40.) The City has provided an affidavit from Trish Henderson, Director of Human Resources for the City. (Docket Item No. 40-2, ("Henderson Aff.")). Henderson stated that Byrd's personnel file contains no request for light duty related to any medical condition or disability, and when questioned, Mumpower admitted that he had seen no paperwork to confirm that Byrd was on light duty while working GI. (Henderson Aff. at 2; Mumpower Depo. at 40, 55.) The GI position was a grant-funded position existing from 1995 through 1998, long before Byrd's retirement in 2010. (Henderson Aff. at 3.) This position was not filled following Byrd's retirement because there was no longer any grant funding available for it, and it was no longer needed. (Henderson Aff. at 3.) Instead, when the grant funding for the GI position ended, Byrd became a Detective in the CID. (Henderson Aff. at 3.) Henderson stated that, although Byrd continued to perform some gang intelligence duties, she also performed numerous other duties and was a sworn officer. (Henderson Aff. at 3.) ...