            Case: 15-12038   Date Filed: 03/23/2016   Page: 1 of 12


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-12038
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 1:13-cv-02960-AT


JASON JORDAN,

                                                             Plaintiff-Appellant,

                                    versus

CITY OF UNION CITY, GEORGIA,

                                                           Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                              (March 23, 2016)

Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM:

     Jason Jordan appeals from the district court’s grant of summary judgment in

favor of the City of Union City, Georgia, (“Union City”) in his employment
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discrimination lawsuit filed pursuant to the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12131, et seq.                 Jordan, who has been diagnosed with

generalized anxiety disorder, cyclothymic disorder (a mood disorder), and panic

disorder, was a probationary police officer with the Union City Police Department.

He was fired following a series of events on duty during which Jordan experienced

heightened levels of anxiety causing another officer to believe Jordan needed

immediate medical attention.          Following his termination, Jordan brought this

action under the ADA, alleging he was wrongly fired on the basis of disability.

The district court granted summary judgment to Union City, concluding that

Jordan was not a “qualified individual” under the ADA because he failed to show

that he could perform the essential functions of the police-officer position while

attempting to mitigate the effects of an anxiety attack. On appeal, Jordan argues

that summary judgment was inappropriate because evidence of his qualifications

and of the effects of his anxiety was in dispute. After careful review, we affirm the

district court.

                                               I.

       After successfully completing the police academy, Jason Jordan joined

Union City in early October 2012 as a probationary parole officer.1 As part of a


       1
         In reviewing whether summary judgment was appropriate, we present the facts in the
light most favorable to the non-moving party, Jordan, construing all reasonable inferences in his
favor. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
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six-month probationary period, new officers must complete the Field Training

Officer Program (“FTO Program”) by riding with a field training officer for at least

sixty days. The FTO Program is designed to train officers on the City’s policies

and procedures, the law, responding to 911 calls, and initiating activity in the field.

      Jordan completed the first part of this training with two supervisory officers,

Marquis Grant and Walker Heard, on “morning watch” (midnight to 8:00 a.m.).

Grant and Heard evaluated Jordan’s performance through Daily Observation

Reports (“DORs”), which were submitted to Captain Eugene Tate, who oversaw

the training program. Of the 549 numeric scores Jordan received on the DORs,

491 (88%) were a 3 or 4 (out of 5), indicating largely satisfactory or positive

performance reviews. Heard testified that Jordan did a “very good job” as a new

police officer. While training with Grant and Heard, Jordan disarmed a man in

possession of a firearm after a traffic stop, attempted to pursue fleeing suspects

into a wooded area after a high speed chase, and took charge of a situation at an

apartment complex, arresting three male suspects and taking them into custody.

      In mid-November 2012, Jordan began training with another supervisory

officer, Travis Crawl, on “evening watch” (4:00 p.m. to midnight). A few days

into the new assignment, Jordan and Crawl were dispatched to a call on Raymond




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Drive.2 When Jordan arrived at the call, he saw a large man standing on the front

porch. The man was yelling and appeared to have a gun in his hand. Jordan ran to

cover at an oak tree at some distance from the front of the house in order to

investigate what was actually happening.               Once Crawl ran past him, Jordan

realized that the person on the porch was a police officer. Jordan then ran to the

porch and arrived there at nearly the same time as Crawl. When Jordan reached

the porch, he assisted in detaining the individual they were there to detain—who

was already on the ground but was resisting—by holding him down while other

officers handcuffed him.

       After the call, Crawl told Jordan he was disappointed that Jordan did not run

up and get right in the action. Crawl accused Jordan of hiding behind the tree and

raised his voice while talking to Jordan about the situation. While talking with

Crawl, Jordan’s anxiety became elevated and he “choked up.” Crawl asked Jordan

if he was okay.        Jordan replied that he was fine and that his feelings were

consistent with anxiety “episodes” or “attacks” 3 that he had had in the past. Crawl

asked if Jordan needed an ambulance. Jordan responded that he did not, but Crawl

told him that he was taking him to the fire station to get him evaluated.


       2
          The details of this event are heavily disputed by the parties. We credit Jordan’s version
of events as derived from his deposition testimony. See Evans v. Stephens, 407 F.3d 1272, 1278
(11th Cir. 2005) (en banc) (“[W]hen conflicts arise between the facts evidenced by the parties,
we credit the nonmoving party’s version.”) (emphasis omitted).
        3
          Jordan used the term “anxiety episode,” but he indicated in his deposition testimony that
this term was synonymous with “anxiety attack” or “panic attack.”
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      Around this time, Crawl and Jordan were dispatched to a shots-fired call.

Crawl diverted from the shots-fired call and took Jordan to the fire station for

evaluation instead. After the EMS evaluated Jordan and informed him that he was

“okay,” Crawl told Jordan to have someone to pick him up so that he could go

home for the day and that Jordan would meet with Captain Tate the next morning.

Crawl also took Jordan’s weapon, explaining that Tate had told him it was standard

operating procedure to take a weapon if someone had a “mental condition or

episode.”

      The following day, Jordan met with Captain Tate. After some discussion of

the events the previous day, Captain Tate told Jordan that he would be fired that

day unless he resigned. The captain told Jordan,

             I think you have anxiety issues because I’ve done a little
             investigating of my own and it’s not the first time that
             that’s happened. You had a situation that happened at the
             Academy that supposedly a thunderstorm came through
             [and] they had to call an ambulance for you. You’ve got
             some anxiety issues that you need to deal with . . . . It’s
             not going to be here.

Jordan chose to resign under threat of firing.

                                         II.

      After filing a charge of discrimination with the Equal Employment

Opportunity Commission, Jordan filed suit against Union City in federal district

court under the ADA, alleging that he had been discriminated against on the basis


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of disability. Jordan claimed that he was fired because Captain Tate regarded him

as disabled, not that he was in fact disabled.

      Despite ruling in his favor on several disputes, the district court ultimately

concluded that Jordan had not shown he could perform the essential functions of

the police-officer position, such as handling high-stress and emergency situations

in a cool, calm, and collected manner.            The court found that Jordan’s

“unpredictable, unpreventable, uncontrollable” anxiety attacks could cause him to

be temporarily unable to “handle high-stress situations while attempting to mitigate

the effects of an anxiety attack.” Consequently, the district court granted summary

judgment in favor of Union City. Jordan now appeals.

                                         III.

      We review an order granting summary judgment de novo, viewing the

evidence and drawing all reasonable inferences in favor of the non-moving party.

Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1161-62 (11th Cir.

2006). Where there is a conflict in the evidence, we resolve all reasonable doubts

about the facts in favor of Jordan, the non-moving party. See Feliciano v. City of

Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013). “The court shall grant

summary judgment 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). A genuine factual dispute exists if a reasonable jury could return a


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verdict for the non-moving party. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1085 (11th Cir. 2004).

                                        IV.

      Jordan contends that there are material issues of fact regarding his

qualifications for the police-officer position that preclude entry of summary

judgment.    He contends that the court improperly relied on Captain Tate’s

subjective evaluation of Jordan, which was based on disputed factual events, and

that the court’s construction of the evidence regarding Jordan’s training was not

the only reasonable one. Further, Jordan argues, while his anxiety issues affected

his ability to manage stress “to some unspecified degree,” that “does not equate to

being physically incapable of reacting and responding appropriately under stressful

or dangerous circumstances.”

      The ADA prohibits discrimination by an employer “against a qualified

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

any of the “terms, conditions, and privileges of employment.”            42 U.S.C.

§ 12112(a). To proceed under the ADA, “a plaintiff must show that, at the time of

the adverse employment action, he had a disability, he was a qualified individual,

and he was subjected to unlawful discrimination because of his disability.”

Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014).

“Disability” under the ADA can be shown in three ways: (a) having a physical or


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mental impairment that substantially limits a major life activity; (b) having a

record of such an impairment; and (3) being regarded as having such an

impairment. 4 42 U.S.C. § 12102(1).

       A “qualified individual” is someone with a disability, who “with or without

reasonable accommodation, can perform the essential functions” of the job.5 42

U.S.C. § 12111(8). Essential functions, in turn, are “fundamental job duties of a

position that an individual with a disability is actually required to perform.” Earl

v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000); see 29 C.F.R.

§ 1630.2(n)(1). We evaluate whether a function is “essential” on a case-by-case

basis, considering several factors. Davis v. Fla. Power & Light Co., 205 F.3d

1301, 1305 (11th Cir. 2000); see 29 C.F.R. § 1630.2(n)(2) (listing factors to

consider). The ADA directs courts to consider “the employer’s judgment as to

what functions of a job are essential,” such as the employer’s written description

for the job.     Davis, 205 F.3d at 1305; see 42 U.S.C. § 12111(8); 29 C.F.R.

§ 1630.2(n)(3) (listing sources of evidence). We also look to the testimony of the

       4
          Congress has directed that the ADA “shall be construed in favor of broad coverage of
individuals . . . to the maximum extent permitted.” 42 U.S.C. § 12102(4)(A). Construing the
ADA broadly, we agree with the district court that a reasonable jury could conclude that Captain
Tate regarded Jordan as having a disability based on Captain Tate’s deposition testimony and his
comments to Jordan. See 42 U.S.C. § 12102(3)(A) (a plaintiff is “regarded as” having a
disability if he can establish that he “has been subjected to an action prohibited under [the ADA]
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.”).
        5
          We note that Jordan did not request a reasonable accommodation from Union City, nor
would a reasonable accommodation be available to him based solely on a “regarded as” theory of
disability. See 42 U.S.C. § 12201(h).
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plaintiff’s supervisor, among other factors. Holly v. Clairson Indus., L.L.C., 492

F.3d 1247, 1257-58 (11th Cir. 2007).

       The essential functions of the police-officer position are not in dispute.

These functions, which are derived from Union City’s written description of the

position and from Captain Tate’s testimony, include the ability to exercise sound,

independent judgment in emergency or stressful situations and to react quickly and

calmly in emergencies. The job description further states that officers may be

exposed to dangerous and life-threatening situations and that they must be mentally

and physically capable of using deadly force, if justified.

       Viewing the evidence in the light most favorable to Jordan and resolving all

factual disputes in his favor, we conclude that the district court properly granted

summary judgment to Union City. 6 Jordan’s deposition testimony regarding his

condition establishes that Jordan’s condition affected his ability to process and

manage stress. In addition, Jordan testified that his condition could and did impact

his breathing, blood pressure, heart rate, and adrenal fatigue.




       6
          Our review of the district court’s decision indicates that the court carefully relied on
only those facts as to which no dispute existed, such as Jordan’s deposition testimony regarding
his condition. But even had the court relied on disputed facts or a certain construction of the
evidence, we are not bound by the district court’s determination of the facts for summary-
judgment purposes and may determine those facts ourselves. Feliciano, 707 F.3d at 1252 n.5
(“[O]n de novo review of a summary judgment ruling, we may not only affirm on any ground
supported by the record, but may also choose to disregard a district court’s determination of the
facts for summary judgment purposes and determine those facts ourselves.”).
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      Jordan explained that his anxiety episodes were also unpredictable. He

testified that about once a month, he would experience a couple of episodes

together and then none for a while. The episodes were not necessarily triggered by

events, but events could stimulate his anxiety. As Jordan related, his anxiety

episodes were unpreventable and largely uncontrollable. Jordan testified that he

had learned various techniques over the years to control the anxiety, such as

various breathing techniques, pinching his thumbs, and reassuring himself that he

was not dying. However, he also stated that it was an “ongoing process” and that

the coping techniques did not prevent episodes from occurring. See Jordan Dep. at

47, 80 (“I think when the episode is going to come, it’s going to come.”). Rather,

the coping techniques kept the anxiety from getting worse.     Id. at 47-48 (“Don’t

get me wrong, I can’t control the feeling. I can’t control the anxiety. I can just

keep it from getting worse.”). Moreover, coping with an anxiety episode affected

his ability to concentrate. Jordan had sought medical treatment because of an

episode on four occasions since his first episode in 2007.

      In light of this undisputed evidence, we conclude that district court properly

found no genuine issue of material fact regarding Jordan’s ability to react quickly

and calmly in high-stress and potentially life-threatening situations while

experiencing and trying to mitigate the effects of an anxiety episode. “[B]eing

prepared to respond to unexpected events is, in part, precisely what defines a police


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officer or detective,” Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1258

(11th Cir. 1997), and Jordan’s testimony reflects the possibility that he was likely

to have unpredictable and unpreventable anxiety episodes while on duty that would

affect his ability to process and manage stress and impact his breathing, blood

pressure, heart rate, and adrenal fatigue. And even aside from the physiological

effects of his condition, coping with an anxiety episode so as to prevent it from

getting worse necessarily would require Jordan to divert some of his focus away

from his external circumstances, clearly affecting his ability to respond quickly and

calmly in dangerous and potentially life-threatening situations. While the record

contains evidence that Jordan was fully capable of performing the duties of his

position much of the time, even an infrequent inability to perform the essential

functions of the position is enough to render a plaintiff not a “qualified individual”

under the ADA. See id. at 1257.

      The events at Raymond Drive further support the district court’s

determination.   Jordan experienced “high levels of anxiety,” during which he

“choked up,” his respirations were shallow, his heart was racing, and his blood

pressure was elevated. Although Jordan contends that he was able to respond to

the shots-fired call and that his anxiety on that occasion did not rise to the level of

an episode or attack, Jordan still exhibited symptoms sufficiently serious in degree




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to give cause to another officer to believe that Jordan required immediate medical

attention.

      For these reasons, we conclude that the district court properly found that

Jordan failed to show that he was a qualified individual under the ADA. Because

Jordan must show that he is a qualified individual to proceed under the ADA, we

do not address his remaining arguments, such as the legitimacy of Union City’s

reasons for his termination.    Consequently, we affirm the grant of summary

judgment in favor of Union City.

      AFFIRMED.




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