[PUBLISH] 

IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT 

________________________ 

No. 15-11362 

________________________ 

D.C. Docket No. 1:12-cv-04038-RWS 

JACQUELINE LEWIS, 

 Plaintiff - Appellant, 

versus 

CITY OF UNION CITY, GEORGIA, 

CHIEF OF POLICE CHARLES ODOM, 

in his official and individual capacities, 

 Defendants - Appellees. 

________________________ 

Appeal from the United States District Court 

for the Northern District of Georgia 

________________________ 

(December 15, 2017) 

Before TJOFLAT and ROSENBAUM, Circuit Judges, and Kaplan,*

 District Judge.

 

*

 The Honorable Lewis A. Kaplan, of the United States District Court for the Southern District of 

New York, sitting by designation. 

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KAPLAN, District Judge: 

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 reason was that Ms. Lewis was absent without leave—this 

notwithstanding that the Union City Police Department (“UCPD”) only days 

earlier had placed her on indefinite administrative leave pending resolution of the 

question whether she safely could be subjected to a Taser shock as part of a new 

UCPD training policy. 

Ms. Lewis here contends that her discharge reflected unlawful disability 

and/or racial or gender discrimination. She seeks back pay, damages, and 

reinstatement. The matter is before this Court on appeal from the district court’s 

grant of defendants’ motion for summary judgment dismissing the complaint. We 

hold that the evidence raised genuine issues of material fact and therefore reverse. 

I. FACTS 

A. Ms. Lewis’s Medical Condition 

 Jacqueline Lewis joined the UCPD in 2000 as a patrol officer. 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. 

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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.” 

B. UCPD’s New Taser Policy 

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 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 

an uncooperative subject when attempting to obtain compliance and effect an 

arrest.” Although the manufacturer, Taser International, does not require trainees 

to receive a Taser shock to be certified in Taser use, Odom required his officers to 

receive a five-second shock as part of the Taser training. In moving for summary 

judgment, he offered five justifications for this requirement: 

“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 Taser Training 

 

1

 OC spray, commonly known as pepper spray, is a nonlethal aerosol used to blind and 

incapacitate temporarily in order to subdue a subject for arrest.

2

 An ASP is an expandable baton carried on an officer’s duty belt. 

3

 A Taser is a brand of electronic control device, a nonlethal weapon that deploys an electric 

shock that temporarily disables a subject through neuromuscular incapacitation. 

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On June 14, 2010, Ms. Lewis was told to report for Taser training on June 

17, 2010. Ms. Lewis was concerned that her prior heart attack might increase her 

risk of injury from a Taser shock 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, 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 

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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. 

E. Ms. Lewis Placed on Administrative Leave 

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 

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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. 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 first 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 

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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 

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while you are currently on FMLA Leave with our department.” At that time, 

however, Ms. Lewis was on administrative leave pursuant to Chief Brown’s June 

17 letter, not FMLA leave. In fact, she had not applied for FMLA leave. 

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 Dr. Harris or to have anyone else from the department 

contact her. 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 

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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 

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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 an important respect. She had been placed on unpaid, indefinite 

administrative leave on June 17, at which time she was given the option first to use 

her accrued vacation and sick time so that she could continue receiving a salary 

until that leave was exhausted. She never was given any deadlines, nor did any 

appear in the written city policies, by which she had to obtain medical clearance, 

file FMLA paperwork, or otherwise resolve the questions about whether she could 

perform her job duties. She never was transferred from administrative leave to 

another type of leave. Indeed, at oral argument, defendants conceded that Ms. 

Lewis was on administrative leave at the moment she was fired—an involuntary, 

unpaid leave initiated by a supervising officer. They conceded further that 

inherent (though unarticulated) in the act of firing Ms. Lewis was the act of 

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terminating her administrative leave. Otherwise, there is no plausible way to 

justify the stated reason for her termination, which was that she was absent without 

leave. Moreover, Assistant Chief Brown’s deposition response to the examiner’s 

suggestion that Dr. Harris had been on vacation—“[a]ccording to Jackie”—might 

be regarded by a jury as indicating a belief by Brown that Ms. Lewis had lied about 

Dr. Harris’s being away in early July. 

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 

while retaining her job, and (3) had lied about Dr. Harris’s unavailability until July 

7. We discuss additional possibilities below.

G. Administrative Appeal 

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 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. PROCEEDINGS BELOW 

 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 42 U.S.C. § 1981 and Title VII. 

 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. 

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 The second comparator was Patrol Officer Walker Heard, a white man who 

failed a physical fitness test. Heard was placed on leave without pay for 90 days, 

offered a position as a dispatcher, and ultimately terminated by the department 

after 449 days on administrative leave. The city notes that Heard filed an EEOC 

charge against the city during the 90-day leave period and requested that he be 

exempted from the physical fitness requirements. 

 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 appeals from that order and from the 

judgment entered upon it. 

 

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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.” FED. R. CIV. P. 56(a); Strickland, 692 F.3d at 1154. The court 

must draw all reasonable inferences in favor of the nonmovant and may not weigh 

evidence or make credibility determinations, which “‘are jury functions, not those 

of a judge.’” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1252 (11th Cir. 

2013) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). 

B. The Disability Discrimination Claim 

 Under the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 

12112(a), it is unlawful for an employer to “discriminate against a qualified 

individual on the basis of disability in regard to . . . discharge of employees, . . . 

and other terms, conditions, and privileges of employment.” To establish a prima 

facie case for disability discrimination, a plaintiff must produce sufficient evidence 

to permit a jury to find that she: (1) is disabled, (2) is a qualified individual, and (3) 

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was discriminated against because of her disability. Mazzeo v. Color Resolutions 

Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014) (citing Holly v. Clairson Indus., 

L.L.C., 492 F.3d 1247, 1255-56 (11th Cir. 2007)). “The ADA defines the term 

‘disability’ as (1) a physical or mental impairment that ‘substantially limits one or 

more’ of an individual’s ‘major life activities,’ (2) a ‘record of such an 

impairment,’ or (3) ‘being regarded as having such an impairment’ as described in 

subsection (1).” Mazzeo, 746 F.3d at 1268 (quoting 42 U.S.C. § 12102(1)). 

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. 

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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 “permanent injury to her heart and [she] continues to suffer regurgitation of the 

mitral tricuspid, and aortic heart valves.” The district court rejected this argument, 

holding that she may have produced sufficient evidence of a physical impairment 

but she failed to adduce sufficient evidence that that impairment substantially 

limited any major life activity. Ms. Lewis here challenges this conclusion, 

contending that her heart condition substantially limits her ability to sleep and 

breathe. 

An individual who is “actually disabled” is one with “a physical or mental 

impairment that substantially limits one or more major life activities.” 42 U.S.C. § 

12102(1)(A). Major life activities “include, but are not limited to, caring for 

oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, 

standing, lifting, bending, speaking, breathing, learning, reading, concentrating, 

thinking, communicating, and working.” Id. § 12102(2)(A). 

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.” 

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Mazzeo, 746 F.3d at 1268 (quoting 42 U.S.C. § 12101 Note). It was concerned 

also that “the Supreme Court’s interpretation of the phrase ‘substantially limits’ . . . 

had ‘created an inappropriately high level of limitation necessary to obtain 

coverage under the ADA.’” Mazzeo, 746 F.3d at 1269 (quoting 42 U.S.C. § 12101 

Note). In consequence, Congress added a rule of construction to the definition of 

disability, instructing that “[a]n impairment that is episodic or in remission is a 

disability if it would substantially limit a major life activity when active.” 42 

U.S.C. § 12102(4)(D). 

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 

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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 as compared to most people in the population” and “was unable to 

assess how episodic Vaughan’s pain would be”). Accordingly, we agree with the 

district court that Ms. Lewis did not produce evidence sufficient to raise a genuine 

issue of fact that she is actually disabled. 

b. Ms. Lewis has produced evidence sufficient to raise a 

genuine issue of fact on whether she was “regarded as” 

disabled. 

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 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.” 42 

U.S.C. § 12102(3)(A). 

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 

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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 

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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 the individual as disabled.” 

29 C.F.R. § Pt. 1630, App. The guidance explains further that “[w]hether the 

employer has a defense (e.g., that the employee posed a direct threat to himself or 

coworkers) is a separate inquiry.” Id. While not binding, the guidance illustrates 

the common sense principle that an employer that takes an adverse action because 

it fears the consequences of an employee’s medical condition has regarded that 

employee as disabled. 

 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 

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23 

position that such individual holds or desires.” 42 U.S.C. § 12111(8). The district 

court held that Ms. Lewis was not a qualified individual. It did so by adopting the 

UCPD’s position that she could not perform the essential functions of a Union City 

detective, which, it held, included being exposed to OC spray and a Taser shock. 

In adopting the UCPD’s contention, however, the district court made a factual 

determination that was inappropriate on summary judgment. 

 “‘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 29 C.F.R. 

§ 1630.2(n)(3)(ii)-(vii)). Accordingly, “[a]lthough the employer’s judgment is 

‘entitled to substantial weight in the calculus,’ this factor alone is not conclusive.” 

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24 

Id. (quoting Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1285 (11th Cir. 

2007)). 

 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] mentally and physically capable of using deadly force, if 

justified,” but contains no reference to OC spray or Tasers. Further, Ms. Lewis 

offered evidence that detectives previously were permitted a choice of what 

nonlethal weapon or weapons to carry. Moreover, neither party disputes the fact 

that Taser International does not require trainees to receive a shock in order to 

become certified in Taser use. 

In these circumstances, a jury would be justified in concluding that receiving 

a Taser shock was not an essential function of Ms. Lewis’s job, in which case it 

would follow that she was a “qualified individual.” 

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25 

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.4

 

 As was demonstrated in the analysis of the first prima facie element, built in 

to the “regarded as” definition of disabled is an analysis of whether the employer 

subjected the employee “to an action prohibited under this chapter because of an 

actual or perceived physical or mental impairment.” 42 U.S.C. § 12102(3)(A). 

The evidence tending to prove the “regarded as” definition of disabled therefore 

 

4

 In cases where the employee meets either the first or second definitions of “disabled” (that is, 

that employee shows that he or she is actually disabled or has a history of being actually 

disabled) on the first prima facie element, that employee may meet his or her prima facie burden 

on this third element by showing that the employer does not make reasonable accommodations 

for the disability. Boyle v. City of Pell City, 866 F.3d 1280, 1289 (11th Cir. 2017) (“An 

employer unlawfully discriminates against an otherwise qualified person with a disability when it 

fails to provide a reasonable accommodation for the disability, unless doing so would impose an 

undue hardship on the employer.”); Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir. 2016) 

(framing issue on appeal as “whether Defendant discriminated against Plaintiff by failing to 

provide a reasonable accommodation that would have enabled her to perform either her CSO 

duties or the essential duties”); Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1262 (11th Cir. 

2007) (“[A]n employer’s failure to reasonably accommodate a disabled individual itself

constitutes discrimination under the ADA, so long as that individual is ‘otherwise qualified,’ and 

unless the employer can show undue hardship.”); see also 42 U.S.C. § 12112(b)(5)(A). In other 

words, an employer’s failure to provide a reasonable accommodation may be evidence that that 

employer has discriminated against her “because of” her disability. 

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.” 29 C.F.R. § 1630.9(e). 

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26 

often is duplicative of the evidence relevant to the third prima facie element. See

29 C.F.R. § Pt. 1630, App. (“While a person must show, for both coverage under 

the ‘regarded as’ prong and for ultimate liability, that he or she was subjected to a 

prohibited action because of an actual or perceived impairment, this showing need 

only be made once.”).5

 Because we hold Ms. Lewis’s evidence sufficient to meet 

her prima facie burden on the first element, we therefore hold also that her 

evidence is sufficient on this element of her prima facie case for the same reasons 

detailed supra section II.A.2. 

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 42 U.S.C. § 12113. Specifically, he reasoned that Dr. 

Harris’s letter recommending that Ms. Lewis not be exposed to OC spray or a 

Taser shock meant that Ms. Lewis’s “presence near the use of OC spray and Tasers 

while in the workplace posed a significant risk of harm to her health.” Ms. Lewis 

 

5

 Defendants state that the district court did not reach the third element of the prima facie case—

whether Ms. Lewis was discriminated against because of a disability. The district court, 

however, did find that there was sufficient evidence that Ms. Lewis was regarded as disabled. 

Because, as discussed above, the evidence of the third prima facie element is duplicative of the 

evidence needed to show that Lewis was regarded as disabled, the district court did, in fact, 

resolve this question in Ms. Lewis’s favor. 

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27 

argues on appeal that she poses no direct threat to herself or others and that the 

court below failed to conduct the requisite individualized assessment.

 “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.” 29 C.F.R. § 1630.2(r). Moreover, the “direct threat” 

defense: 

“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 29 C.F.R. § 

1630.2(r)). 

 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 safely the “essential functions of the job.” 29 C.F.R. § 1630.2(r). As 

we have held that there is a genuine dispute of material fact on what the essential 

functions of a UCPD detective are, we certainly cannot resolve the question of 

whether she can perform those as-yet-undefined essential functions safely. 

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28 

C. Race and Gender Discrimination Claims 

 Ms. Lewis alleges also sex and race discrimination under Title VII, the 

Equal Protection Clause, and 42 U.S.C. § 1981.6

 The legal elements under any of 

these frameworks are identical. “To make out a prima facie case of racial 

discrimination a plaintiff must show (1) she belongs to a protected class; (2) she 

was qualified to do the job; (3) she was subjected to adverse employment action; 

and (4) her employer treated similarly situated employees outside her class more 

favorably.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008); see also

Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985) (“Where, as here, a 

plaintiff predicates liability under Title VII on disparate treatment and also claims 

liability under sections 1981 and 1983, the legal elements of the claims are 

identical.”). 

1. Similarly Situated Comparators 

 Defendants concede for purposes of this appeal that Ms. Lewis made out the 

first three elements of a prima facie case. They dispute only the fourth element of 

the prima facie case, viz., whether other similarly situated employees were treated 

more favorably.7

 

6

 The Equal Protection and § 1981 claims are brought pursuant to 42 U.S.C. § 1983. 

7

 In proceedings before the district court, Union City disputed the second element also. 

However, the district court noted correctly that the city had overlooked the distinction between 

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29 

 “To be an adequate comparator, the preferentially treated individual from 

outside the plaintiff’s protected class has to be similarly situated to the plaintiff in 

all relevant respects.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 n.17 

(11th Cir. 2011) (citing Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). 

 Ms. Lewis’s two proposed comparators are Sergeant McClure and Officer 

Heard, both white men. They, like Ms. Lewis, were unable to meet UCPDimposed physical requirements—Sergeant McClure failed a balance test and 

Officer Heard failed an agility test. Both, like Ms. Lewis, were placed on 

administrative leave to give them time to resolve these physical limitations and 

meet the department’s requirements. Yet McClure was allowed 90 days of 

administrative leave and Heard 449—both significantly longer than Ms. Lewis’s 

22 days. 

 The magistrate judge held that McClure and Heard were not appropriate 

comparators for two principal reasons. He held that one key dissimilarity was that 

Ms. Lewis, “pursuant to her physician’s recommendations, could not work with 

other officers who carried OC spray and Tasers without serious risk of harm.” 

This distinction is not so indisputably well founded, however, as to warrant the 

 

“qualified individual” in the disability discrimination versus race/gender discrimination contexts. 

In the race/gender discrimination, “in cases where a plaintiff has held a position for a significant 

period of time, qualification for that position sufficient to satisfy the test of a prima facie case 

can be inferred.” Rosenfield v. Wellington Leisure Prods., Inc., 827 F.2d 1493, 1495 n.2 (11th 

Cir. 1987). Appellants appear to have conceded this point on appeal. 

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30 

rejection of the comparators as a matter of law on a summary judgment motion, 

even if it might prove persuasive at trial. Dr. Harris’s letter to the UCPD made no 

mention of Ms. Lewis being at risk from her mere presence around other officers 

carrying those weapons.8

 And her deposition testimony, even if it properly were 

read as supporting a view that Ms. Lewis would be at risk from accidental 

exposure,9

 is entirely irrelevant here for the simple reason that the deposition took 

place long after Ms. Lewis was terminated. It thus could have played no role in 

defendants’ decision to put her on leave and terminate her. 

 The magistrate judge held also—and defendants rely heavily on this 

distinction in this Court—that Heard and McClure were not appropriate 

comparators because they failed physical fitness tests, not weapons certification 

tests. The magistrate reasoned that “[a]n officer’s exposure to a Taser shock and 

OC spray was required by Union City to obtain the necessary certifications, and 

 

8

 Defendants assert that the language in Dr. Harris’s letter that states Ms. Lewis “should not have 

a Taser used on her secondary to previous cardiac history” supported a conclusion that Ms. 

Lewis was at risk from accidental exposure. The letter, however, is entirely silent with respect to 

accidental exposure. It was directed solely at the issue of whether Ms. Lewis should participate 

in Taser and OC spray training, urging the department to take Dr. Harris’s recommendation “into 

consideration when making any decisions about occupational training.” A jury might find at trial 

that the UCPD reasonably interpreted Dr. Harris’s letter to imply that Ms. Lewis would be in 

danger from accidental exposure, but such a factual conclusion is not permissible on summary 

judgment. 

9

 Specifically, Dr. Harris was asked whether there would be any risk to Ms. Lewis if a Taser was 

used near, but not on, her. Dr. Harris answered, “I don’t think so.” Dr. Harris did answer “yes” 

when asked further whether “if there was some electrical current residual even, would your 

recommendation also be that she not use it as well?” This bare testimony, however, cannot 

support a conclusion on summary judgment that Ms. Lewis was in danger from an accidental 

discharge. 

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31 

Plaintiff did not become certified to carry these weapons. In contrast, there is no 

evidence . . . that McClure and Heard were not certified to carry a Taser, OC spray, 

or any other weapon.” Defendants argue also that the fitness policy was instituted 

after Ms. Lewis’s termination and thus cannot properly be compared to the policy 

under which Ms. Lewis was put on leave. 

 This reasoning misses the mark. The test for whether comparators are 

appropriately considered is whether they are similarly situated in all relevant

respects. The focus on the receipt or non-receipt of the Taser and OC certifications 

per se was inappropriate. It fails to recognize that a jury would have been entitled 

to conclude that the certifications are not what was important. The certifications 

simply would have been evidence that Ms. Lewis was physically able safely to 

carry and use a Taser or pepper spray. Carrying and using those implements were 

physical requirements that the UCPD claims were essential functions of her job—

just as proper balance and sufficient agility were physical requirements that the 

UCPD regarded as essential functions of the jobs of McClure and Heard. In other 

words, the 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 

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32 

relevant physical ability, and (3) the two white men then were treated far more 

favorably than this African-American woman in that both white men were given 

extended periods of time to attempt to demonstrate the physical ability but the 

African-American woman was fired without warning. Even assuming that the 

physical fitness requirements that the two white men failed were in a fitness policy, 

as to which the evidence below at best raised an issue of fact,10 and the Taser-OC 

requirement was in another piece of paper or departmental policy, that would be 

entirely immaterial. 

 In this Court, defendants argue also that Officer Heard is not an appropriate 

comparator because, unlike Ms. Lewis, he filed an EEOC charge during his 90-day 

administrative leave period. But this is unpersuasive. Officer Heard failed his 

physical fitness test on or around February 14, 2013. But he did not file his EEOC 

charge until the very end of the 90-day leave period. The UCPD was not advised 

until May 24, 2013, that he had filed an EEOC charge. Thus, Officer Heard had 

 

10 Defendants rely solely on the supplemental declaration of Chief Odom, which purports to 

attach a copy of the physical fitness policy. In fact, however, the only exhibit attached to that 

declaration is the department’s 2010 Taser standard operating procedure. Thus, defendants’ 

attempt to differentiate this alleged fitness policy—and indeed, defendants’ attempt to prove its 

existence at all—from the policy that applied to Ms. Lewis is based solely on Chief Odom’s 

assertion. But Officer Heard’s declaration makes no mention of a physical fitness policy. 

Sergeant McClure testified that his leave was pursuant to an “administrative action,” not a “leave 

of absence,” based on some unspecified “police SOP,” but offered no more than that. And 

Tracie McCord testified that she was not sure what leave policy applied to McClure, but when 

asked whether it was the same as that applied to Ms. Lewis, answered “I would assume so.” The 

Court therefore cannot conclude from this record as a matter of law even that the alleged fitness 

policy existed, much less that it was the basis of the action with respect to McClure and Heard. 

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33 

been accorded over two months more leave than Ms. Lewis was even before he 

took legal action. 

 We acknowledge that the question whether Ms. Lewis has adduced 

sufficient evidence to demonstrate that Officer Heard and Sergeant McClure are 

similarly situated comparators is a close call. Much depends, of course, on the 

definition of what characteristics are “relevant.” Compare Holifield v. Reno, 115 

F.3d 1555, 1563 (11th Cir. 1997) (proposed comparator who had similar 

complaints against him but who, unlike plaintiff, had maintained full workload not 

similarly situated), with Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 

2000) (jury question whether violation of company policy for alcohol was similar 

to violation for absenteeism), and Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 262 

(5th Cir. 2009) (railroad employees similarly situated who had “compiled a similar 

number of serious moving violations over a similar period of time,” and noting that 

distinctions put forward by railroad “might very well prove to be relevant” to 

whether railroad had legitimate, nondiscriminatory reason for differing treatment, 

but did not defeat prima facie case). We conclude, however, that there was a 

genuine issue of material fact as to whether Heard and/or McClure are appropriate 

comparators.11 But we do not rely on this alone, as pointing to similarly situated 

 

11 This Circuit often has applied or referred to a “nearly identical” standard to determine whether 

proposed comparators are similarly situated. See, e.g., Flowers v. Troup Cty., Ga., Sch. Dist., 

803 F.3d 1327, 1340 (11th Cir. 2015). In the majority of those cases, however, this standard was 

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34 

comparators is but one way of raising an inference of discrimination. Regardless 

of whether McClure and Heard correctly were ruled out as appropriate comparators 

 

applied to answer the narrow question of whether workplace misconduct by proposed 

comparators of different races or genders, but for which they were treated more leniently than a 

plaintiff, was sufficiently similar to the plaintiff’s misconduct to give rise to an inference of 

discrimination. E.g., id. (“In order to use comparators to support an inference of race 

discrimination in the context of workplace discipline, a plaintiff must show that the comparators’ 

alleged misconduct is nearly identical to the plaintiff’s in order to prevent courts from secondguessing employers’ reasonable decisions and confusing apples with oranges.” (quotations 

omitted)); see also Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1341 n.73 (11th Cir. 2011); 

McCann v. Tillman, 526 F.3d 1370, 1374 (11th Cir. 2008); Rioux v. City of Atlanta, Ga., 520 

F.3d 1269, 1280 (11th Cir. 2008); Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th 

Cir. 2006); Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001); Maniccia v. 

Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); Jones v. Gerwens, 874 F.2d 1534, 1537 (11th Cir. 

1989); Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1185 (11th Cir. 1984). One case 

cited the language, but did not employ it because the plaintiff offered no evidence of comparators 

whatsoever. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091-92 (11th Cir. 2004). Other 

cases questioned whether “nearly identical” was too rigid a test for whether proposed 

comparators’ misconduct was sufficiently similar to the plaintiffs’. Knight v. Baptist Hosp. of 

Miami, Inc., 330 F.3d 1313, 1316 n.2 (11th Cir. 2003); Maynard v. Bd. of Regents of Div. of 

Univs. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1290 (11th Cir. 2003); 

Anderson v. WBMG-42, 253 F.3d 561, 565 (11th Cir. 2001); Alexander v. Fulton Cty., Ga., 207 

F.3d 1303, 1334 (11th Cir. 2000), overruled on other grounds by Manders v. Lee, 338 F.3d 1304 

(11th Cir. 2003). 

Two recent cases that did not involve disparate treatment of workplace misconduct have used the 

“nearly identical” standard. See Trask v. Sec'y, Dep't of Veterans Affairs, 822 F.3d 1179, 1192 

(11th Cir. 2016); Slater v. U.S. Steel Corp., 820 F.3d 1193, 1196 n.3 (11th Cir. 2016), vacated on 

other grounds to be reheard en banc. But a review of those decisions and the parties’ briefs 

reveals that the issue whether the “nearly identical” standard should apply beyond the realm of 

workplace misconduct was not litigated. Accordingly, the references in those cases to the 

“nearly identical” standard, to any extent the cases went beyond disparate treatment for 

workplace misconduct, “were mere dicta.” See In re MDL–1824 Tri–State Water Rights Litig., 

644 F.3d 1160, 1189 n. 21 (11th Cir. 2011). Thus, the “nearly identical” test was tailored 

specifically to determine whether the misconduct committed by proposed comparators were 

sufficiently comparable to those committed by plaintiffs in discrimination cases. E.g., Maniccia, 

171 F.3d at 1368 (“We require that the quantity and quality of the comparator’s misconduct be 

nearly identical . . . .”). Accordingly, the “nearly identical” test does not apply in this case. As 

noted, however, the result here does not depend on this conclusion. 

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35 

as a matter of law, we hold that Ms. Lewis has adduced evidence sufficient to 

survive summary judgment on an additional basis. 

2. Mosaic of Circumstantial Evidence 

 “[E]stablishing 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 

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36 

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. 

 As an initial matter, 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 in at least three ways. First, the UCPD initiated Ms. 

Lewis’s indefinite administrative leave on June 17 and informed her on July 1 that 

she would not be permitted to return to work until she was medically cleared. Yet 

a week later, and despite Ms. Lewis’s request to return to work and Chief Brown’s 

explicit denial of that request, the UCPD terminated her for being absent without 

leave. Second, the UCPD gave no warning that if Ms. Lewis exercised the option 

to use her accrued leave in lieu of being on unpaid status, she would be terminated 

upon exhausting her accrued leave instead of simply reverting to unpaid 

administrative leave status. Third, the UCPD gave Ms. Lewis no notice that she 

had to file FMLA paperwork by any specific date, nor did the department’s written 

FMLA policy provide any such deadline. She informed the department on two 

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37 

occasions that her doctor was on vacation until July 7, but that she had an 

appointment scheduled for that day. At no time was she told that she would be 

terminated if her doctor failed to contact the department on the very first day she 

returned from vacation. From all this evidence, a jury could conclude that the 

UCPD was searching for a policy to fit its desire to terminate Ms. Lewis rather 

than neutrally enforcing an existing policy. 

 There is evidence also that suggests that the department believed either that 

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 went to great lengths to stress that she had been cleared for full 

duty without restrictions after her heart attack and to emphasize 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 also 

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 evidenced his disbelief of Ms. Lewis’s assertion that Dr. Harris was 

on vacation for the week leading up to her termination suggesting that he doubted 

her truthfulness more generally. At the same time, however, at least two of Chief 

Brown’s letters indicated a belief that Ms. Lewis’s doctor ultimately would clear 

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38 

her for duty and that the medical condition would not, in the department’s view, 

permanently prevent Ms. Lewis from doing her job as a detective. This 

inconsistency in the department’s view of the nature and severity of Ms. Lewis’s 

condition could be interpreted as evidence that the medical condition was a pretext 

for Ms. Lewis’s termination. 

 Lastly, even if Officer Heard and Sergeant McClure do not meet the 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. To the contrary, a jury reasonably could interpret the evidence of their 

significantly more lenient treatment—particularly the 449 days accorded to 

Heard—as circumstantial evidence that the UCPD treats white men more favorably 

than black women. 

 Of course, there are many conclusions a jury could reach based on the 

evidence presented, not all of which would support a finding of discrimination. 

We conclude, however, that the differing treatment of Ms. Lewis’s white 

colleagues, in combination with the rest of the evidence, is part of 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. 

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39 

D. Municipal Liability Under Section 1983 

 Ms. Lewis argues that Union City is liable under section 1981 for Odom’s 

discriminatory actions because Odom was the final decision-maker.12

 A municipality may not be held liable for the torts of its employees on a 

respondeat superior theory. Morro v. City of Birmingham, 117 F.3d 508, 514 

(11th Cir. 1997) (citing Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978)). 

“Instead, municipalities may only be held liable for the execution of a 

governmental policy or custom.” Id. The Supreme Court has clarified that 

“‘municipal liability may be imposed for a single decision by municipal 

policymakers under appropriate circumstances.’” Id. (quoting Pembaur v. City of 

Cincinnati, 475 U.S. 469, 480 (1986)). However, we have repeatedly recognized 

that “a municipal official does not have final policymaking authority over a 

particular subject matter when that official’s decisions are subject to meaningful 

administrative review.” Id.

 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 “‘rubberstamp[ing] the recommendation of a subordinate.’” Quinn v. Monroe Cty., 330 

 

12 This theory of municipal liability applies only to the claims under § 1983, not those under Title 

VII. As this court has recognized, “the proper method for a plaintiff to recover under Title VII is 

by suing the employer, either by naming the supervisory employees as agents of the employer or 

by naming the employer directly,” Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991), 

as Ms. Lewis has done here. 

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40 

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 

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41 

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 and had enlisted her doctor to provide 

unwarranted support in attaining that goal. Perhaps her fate—which a jury might 

find was the result of disparate application of Union City’s leave policies as 

between Ms. Lewis and white male officers who were sufficiently comparable to 

Ms. Lewis in all material respects save race and gender—was a product of, or 

influenced by, race and/or gender. Perhaps her termination was the product of an 

amalgam of such considerations. At bottom, however, the ultimate decision in this 

case is for a properly instructed jury that has seen the witnesses and heard all of the 

evidence. 

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42 

 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,13 REVERSED in all other respects, and REMANDED for 

further proceedings consistent with this opinion. 

 

13 Although Ms. Lewis’s Notice of Appeal stated that she appealed from the judgment dismissing 

her claims in their entirety, in this Court she failed to address the district court’s grant of 

qualified immunity to Chief Odom in her opening brief. She therefore has waived this claim. 

E.g., Little v. T-Mobile USA, Inc., 691 F.3d 1302, 1307 (11th Cir. 2012); United States v. Levy, 

379 F.3d 1241, 1244 (11th Cir. 2004); see also FED. R. APP. P. 28(a)(5). 

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43 

TJOFLAT, Circuit Judge, dissenting: 

I agree with the majority that the dismissal of Lewis’s § 1983 and equal protection 

claims against Union City and against Chief Odom should be affirmed. We part 

ways after that. 

I.

Lewis fails to show a genuine dispute of material fact as to whether she was 

“regarded as” disabled under the ADA. To be “regarded as” disabled, Lewis must 

show that “she has been subjected to a[] [prohibited] action . . . because of an 

actual or perceived physical or mental impairment.” 42 U.S.C. § 12102(3)(A) 

(emphasis added). Lewis was placed on administrative leave because Dr. Harris 

recommended that Tasers and OC spray not be used on “or near” Lewis. The 

Union City Police Department required all officers to carry Tasers, and officers 

routinely carried OC spray into the office. Lewis’s mere presence at work put her 

at risk. Whether that fact derived from her heart condition is irrelevant: she could 

not be at work, so she was placed on leave. She was then terminated because she 

was out of leave, had not submitted FMLA paper work requesting additional leave, 

and had not provided any information from her doctor indicating she could return 

to work. Although the trier of fact is not required to accept the Defendants’ 

proffered reasons, the Plaintiff is required to put forth evidence countering them 

and allowing a jury to reasonably conclude she was fired because she was regarded 

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as disabled. See Trask v. Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1191 

(11th Cir. 2016). Lewis has not done so. 

Lewis must also show she is a “qualified individual” who can perform the 

“essential functions” of her job to succeed on her ADA claim. 42 U.S.C. 

§ 12111(8). I agree 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. The 

position of Police Department Detective requires working with other officers who 

carry and use such weapons. 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. No reasonable jury could find that a detective who cannot risk exposure 

to OC spray and Tasers could satisfy the essential functions of her job.1

 

 Thus, whether stated as failing to prove she was fired because she was 

regarded as disabled, or as failing to prove she could perform the essential 

functions of her job, Lewis failed to meet her burden. Lewis has not shown that 

the Police Department fired her because it regarded her as disabled. 

 

1

 At least not without a reasonable accommodation of transfer to another position, which Lewis 

has failed to put forth. 

Case: 15-11362 Date Filed: 12/15/2017 Page: 44 of 48 
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II. 

 Likewise, under Title VII, Lewis has not put forth sufficient evidence for a 

jury to reasonably conclude the Union County Police Department discriminated 

against her because of her race or gender. First, she has failed to offer comparators 

who are similarly situated such that their disparate treatment could support an 

inference of discrimination. Lewis must show that she and her comparators “are 

similarly situated in all relevant aspects.” Holifield v. Reno, 115 F.3d 1555, 1562 

(11th Cir. 1997). She must show that the activity in which her comparators were 

involved and the consequences that resulted are “nearly identical to the plaintiff’s 

in order to prevent courts from second-guessing employers’ reasonable decisions 

and confusing apples with oranges.” Flowers v. Troup Cty., Ga., Sch. Dist., 803 

F.3d 1327, 1341 (11th Cir. 2015) (quoting Silvera v. Orange Cty. Sch. Bd., 244 

F.3d 1253, 1259 (11th Cir. 2001) (quotation marks omitted)). “Though the 

comparators need not be the plaintiff’s dopplegangers, the ‘nearly identical’ 

standard requires much more than a showing of surface-level resemblance.”2

 Id. 

 

2

 The Court here argues that the nearly identical test does not apply because in “the majority” of 

cases where this Court uses the standard, it has been applied to answer the supposedly “narrow 

question” of whether “workplace misconduct” by proposed comparators of different races or 

genders, for which they were treated more leniently than the plaintiff, was sufficiently similar to 

the plaintiff’s misconduct to support an inference of discrimination. Ante, at 34, n.11. Two 

points, at least. First, continuing to stay out on leave one knows one is no longer entitled to, 

without properly notifying one’s employer, sure seems like “misconduct.” Second, the majority 

admits “[t]wo recent cases that did not involve disparate treatment of workplace misconduct 

have used” the nearly identical standard, while failing to cite any precedent indicating that 

standard is confined to that circumstance. See Id. The majority nevertheless concludes that the 

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Lewis’s proposed comparators, Sergeant McClure and Officer Heard, fall far short 

of this standard. Indeed, the only ways in which they are similar to Lewis are that 

all three failed to meet some sort of requirement, and all three were placed on 

administrative leave. 

 The similarities stop there. McClure and Heard failed to meet physical 

fitness requirements, while Lewis failed to meet a training requirement. These two 

sets of requirements have different purposes, and thus are governed by different 

sets of policies.3

 It is the Police Department’s prerogative to decide how best to 

remedy deficiencies in each set.4

 Holding that McClure and Heard are sufficiently 

comparable to Lewis such that she can escape summary judgment would do away 

with our “nearly identical” standard. 

 

nearly identical test “was tailored specifically to determine whether” misconduct by proposed 

comparators was sufficiently comparable to that of plaintiffs. Id. I fail to see a foundation on 

which this conclusion rests. 

3

 McClure and Heard were placed on administrative leave under a physical fitness policy that 

expressly provided for 90 days of unpaid leave for failing a fitness test. In contrast, Lewis was 

placed on administrative leave because her doctor recommended that weapons she was to be 

certified to carry as part of her training could not be used “on or near her.” Under this separate 

policy, she was expressly instructed to apply for FMLA leave and that she could use her other 

leave “until . . . expended.” Lewis was then terminated after exhausting her other leave and 

failing to apply for FMLA leave.

4

 Note here, in addition to our reticence to substitute the Court’s judgment for that of employers, 

the “special need for deference to the employment decisions of those responsible for ensuring 

public safety,” across many contexts. See, e.g., Kokkinis v. Ivkovich, 185 F.3d 840, 845 (7th Cir. 

1999); Juchenreuther v. City of Milwaukee, 221 F. 3d 967, 974 (7th Cir. 2000); Etheridge v. 

Alabama, 860 F. Supp. 808, 816 (M.D. Ala. 1994); Robert v. Carter, 819 F. Supp. 2d 832, 844–

45 (S.D. Ind. 2011). 

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Lewis has also failed to show a “convincing mosaic of circumstantial 

evidence that would allow a jury to infer intentional discrimination.” Smith v. 

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (emphasis added) 

(quoting Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011)). The 

majority finds evidence from which the jury could infer the Police Department was 

“arbitrary” and “inconsisten[t]” in its actions toward Lewis, that its averred reasons 

for terminating her were false, and that it treated other employees differently. 

Ante, at 38–41. I agree. 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. 

There could be any number of reasons5

 that the Police Department treated 

Lewis the way it did—she could have been personally disliked, the Police 

Department may have believed that she was malingering, or perhaps she and Chief 

Odom were fans of rival basketball teams. “Title VII does not allow federal courts 

to second-guess nondiscriminatory business judgments, nor does it replace 

employers’ notions about fair dealing in the workplace with that of judges.” 

Flowers, 803 F.3d at 1338. The only evidence Lewis offers “that even touches on” 

her race or gender is the fact that her proposed comparators—whose situations are 

dissimilar in degree and kind—are of a different race and gender. See id. Lewis 

 

5

 As the majority puts it: “there are many conclusions a jury could reach based on the evidence 

presented . . . which would [not] support a finding of discrimination.” Ante, at 41. 

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has the burden of persuasion, yet the evidence she puts forward, without more, 

simply does not “suggest a causal connection between” her race or gender and her 

treatment by the Police Department. See id. Lewis has not put forth a convincing 

mosaic of circumstantial evidence that would tend to show that the Police 

Department intentionally discriminated against her based on her race or gender. 

Her claim thus cannot survive summary judgment. 

For these reasons, I respectfully dissent. 

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