Knight v. General Telecom, Inc. (271 F. Supp. 3d 1264, 2017)

MEMORANDUM OPINION AND ORDER

' VIRGINIA EMERSON HOPKINS, United States District Judge

.This is a. civil action filed by the Plaintiff, Ronald Knight, against the Defendant, his former employer, General Telecom, Inc. (“GTI”). The Complaint alleges that: the Plaintiff was fired (and not reinstated) by the Defendant, because of his disability, diabetes, in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12111-12117 (the “ADA”) (Count One); the Defendant failed to accommodate the Plaintiff s ■ disability in violation of the ADA (Count Two); and, after his termination, the Defendant failed to give the Plaintiff the required notice of his rights pursuant to 29 U.S.C. § 1166(a), of the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) (Count Three).

The case comes before the Court on the Defendant’s motion for summary judgment on all counts (doc. 23), and the Plaintiff s motion for summary judgment as to Count Three, the COBRA Claim (doc. 31). For the reasons stated herein, both motions will be GRANTED in part and DENIED in part.

I. STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (“[Sjummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”) (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to- go beyond the pleadings in answering the mov-ant. Id. at 324, 106 S.Ct. 2548. By its own affidavits — or by the depositiqns, answers to interrogatories, and admissions on file— it must designate specific facts showing that there is a genuine issue for trial. Id.

The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Id. If the evidence presented by the non-movant to rebut the moving party’s evidence is merely colorable, -or is not significantly probative, summary judgment may still be granted. Id. at 249, 106 S.Ct. 2505.

How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof, on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact — that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the' moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce “significant, probative evidence demonstrating the existence of a triable issue of fact.” Id. (citation omitted) (emphasis added).

For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-mov-ant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts; Lewis v. Casey, 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.

II. FACTS

A. GTI

GTI installs and maintains electric equipment .and towers for cellular telephone communications customers including AT & T, Verizon, Sprint, T-Mobile, Ericsson, and, in the past, General Dynamics, The parties agree that, at all relevant times, GTI employed 19-24 employees. (Doc. 24 at 5, ¶ 2 (not disputed by Plaintiff)). However, the record contains evidence that GTI “employed 31 full-time employees on July 18, 2014, [and] 27 full-time employees on July 17,2015.” (Doc. 31-1 at 17). All but four GTI employees spent most of their time completing work for customers in the field. All GTI employees worked in the field from time-to-time. Individuals employed by GTI had different skill sets, and would perform different duties based on customer needs.

At all relevant times, GTI employees have been required to adhere to policies in GTI’s Employee Handbook, which GTI distributes and explains to all of its employees. GTI’s Handbook includes Equal Opportunity and Americans with Disabilities' Act policies, which, inter alia, call for reasonable accommodation of employee disabilities and strictly prohibit discrimination in all employment terms and conditions based on an employee’s disability. Also, pursuant to GTI’s Employee Handbook, employees are subject to discipline up to and including termination, for: poor job performance, unsatisfactory quality or quantity of work, failing to follow instructions or company procedure, failing to meet safety expectations, insubordination or refusal to perform work, disorderly conduct or acts of violence, misusing or destroying company property, and using illegal drugs or reporting to work under the influence of same.

B. Ronald Knight

Knight was employed by GTI as a “helper” from April 2006 until his termination on June 24, 2015. The duties of a helper include generator installation, simple directed wire splicing, and ditch digging.

Knight was diagnosed with Type 2 diabetes in 2012. He takes metformin to control his diabetes and also takes medication for diabetic nerve damage in his feet. His diabetic condition constrains his diet, limiting the foods he is able to eat. Knight has to eat in order to keep his blood sugar up so that he can work.

1. Knight’s Training, Certifications, and Abilities

Knight can only read “some” and cannot write. (Doc. 25-2 at 9(29); doc. 25-1 at 2, ¶ 8.b.)., It ⅛ undisputed that Knight was never certified to perform tower climbs because he feared heights. Further, he obtained no industry or other certifications, and he did not attend any training or classes in the telecommunications field.

At all relevant times in this case, Knight reported to GTI’s Chief Financial 'Officer Dr. Lee Chamoun, and Field Manager Jeff Bowermán. Chamoun states in his affidavit that:

Ron’s skill set was the smallest of all employees who worked for the Company; coworkers reported occasions in which he aggressively declined to learn how to follow blueprints and perform even the simplest tasks, and he never pursued training opportunities.

(Doc. 25-1 at 5,. ¶ 12.b.). Accordingly, “[Knight’s] skills were confined to digging ditches and following specific A-B-C instructions on what wire to place where,” (Doc. 25-1 at 3, ¶ 8,c.) Bowermán who has “worked with Ronald Knight for approximately twenty years,” and who was Knight’s supervisor at GTI, states the following in his declaration:

At GTI, Ronald Knight was typically assigned work tasks such as running pipe and simple electrical wiring. Mr. Knight’s skills and job knowledge were limited in comparison to other employees under my supervision. Based on my observation, Mr. Knight was not able to read and/or write and did not have any desire to learn new technologies or skills. To my knowledge, Mr. Knight never expressed interest in attending training or classes to advance in the telecommunications field.

Because Mr.' Knight was limited with regard to job skills and knowledge,' I had to assign him to jobs that offered simple electrical work tasks. Unlike employees such as Michael Jones, Mr. Knight could not perform technical electrical tasks such as integration and fiber optic work on telecommunications job sites. .

(Doc. 25-7 at 2, -¶¶ 5-6).- Michael Jones, who worked with Ronald Knight “from approximately 2009 until [Knight’s] employment ended,” stated:

[Knight’s] skills and knowledge of how to properly perform work tasks was very limited. Unlike other GTI employees, Ronald Knight did not actively keep up with changes and technology so that he could add value to the company. Instead, Ronald Knight was only capable of performing specific manual labor and simple electrical tasks. (Doe. 25-9 at 2, ¶¶ 6, 7).

Due to Knight’s inability to communicate effectively in writing, GTI management primarily communicated with him verbally. However, there is evidence that' Knight does communicate via text message. (Doc. 25-2 at 20(74); doc. 34-2).Still, Knight’s wife, Kimberly Knight (“Mrs. Knight”), typically communicated with GTI on Knight’s behalf when something had to be completed in writing.

2. Knight’s Work Efficiency Issues

At all pertinent times, Knight understood that completing projects and contract work quickly and efficiently was a top priority for GTI. In his deposition, Knight testified: “[N]obody talked to me about work performance or anything. I’ve always worked hard, always did my job, and I always did the best I could,” (Doc. 25-2 at 39(151)). However, his co-workers and supervisors saw things differently. In his affidavit, Chamoun states that:

Ron was not efficient with the few skills he possessed when compared- to other employees at a time when a decision had to be made.... Reports persisted that Ron’s work was beyond slow; he took 3 to 4 times longer to perform simple tasks than did others, and he was-reported by co-workers as having taken extended breaks smoking in posted restricted areas after being told not to smoke in restricted areas previously.

(Doc. 25-1 at 5, ¶ 12. a.). Knight testified that he knows nothing about who might have made any such reports, when reports might have been made, or any specifics regarding same, (Doc. 25-2 at 38(145-146)).

Chris Howard - was a “Lead Fieldman” responsible for supervising and directing Knight’s work. He stated:

Though Mr. Knight and I were employed at GTI for many years, we only worked together on projects and at job sites during approximately the last six months of his employment. During that period, Mr. Knight and I worked on numerous generator installation projects. Mr. Knight typically was assigned to perform electrical work on projects.

[ ] Based on my experience working with Mr.- Knight, I would, assess his job performance as subpar. He.would either take way too long to complete a task or would breeze through it and do it incorrectly. For example, I remember it taking Mr. Knight approximately 20 minutes to complete tasks that generally take 2 hours. Mr. Knight also took extended restroom and other breaks while GTI employees were performing work and would only reappear when the assigned work tasks were at or near completion. In addition, ■ Mr. Knight frequently stood around [job sites] and smoked cigarettes while other GTI employees performed assigned work.

[] I frequently counseled Mr. Knight regarding his slow and poor job performance. For example, while on a job in Mississippi installing a power bay, Mr. Knight took approximately .18 hours to complete 30 minutes of work. During the project, I requested that he speed up and finish the work he was performing. Mr. Knight, however, refused to do so. On other occasions, I told Mr. Knight he would need to redo certain electrical work that did not meet GTI or the customer’s quality standards and expectations. Mr. Knight, however, refused to redo such work and I or some other GTI employee would redo it before leaving the [job site].

[ ] When I worked with Mr. Knight,. he took more frequent and longer breaks than any other. GTI, employees... .1 would estimate that Mr. Knight spent approximately 75% of his workdays on break.

[] In May/June 2015, Jeff Bowerman discussed with me why my group was not working as efficiently as expected and completing job projects-and work in a timely manner. In response, I requested that Jeff Bowerman visit the job site and observe and assess for themselves the performance of employees under my supervision. As requested, Jeff Bower-man visited the job site where my crew was .working and observed the work of myself, Nicholas Gotay, and Mr. Knight.

(Doc. 25-8 at 2-3, ¶¶ 6-10).

Bowerman stated the following in his declaration:

In May-June 2015, GTI learned that the work crew led by Chris Howard, which included .Chris Howard, Nicholas Gotay, and Ronald Knight at the time, was taking a long time to complete projects. I talked with Chris Howard about his crew’s efficiency and he requested that I come observe his crew’s work so that I could see for myself what the issue was. On June 12, 2015, and at other times, I observed Mr. Knight working very slowly with no enthusiasm and poor work ethic. For example, I watched Mr. Knight smoke cigarettes while Chris Howard and Nicholas Gotay dug a ditch, I discussed with Mr. Knight that he needed to help his crew perform assigned work -in a timely'and efficient manner. I continued to observe Mr. Knight’s performance and counsel him regarding his need to improve; however, his performance did not improve and he showed no desire or willingness to perform GTI’s work.

(Doc. 25-7 at 3, ¶ 12). Bowerman also stated:

Employees frequently complained to me about working with Ronald Knight. For example, Barry Key, Brandon Reno, Len Bracken, Mike Jones, Chris .Howard, Justin Bowerman, .Scylar Stephenson; and Nick Gotay all raised concerns and complained to me about working with Ronald Knight because of his poor work performance, attitude, and ethic. While Mr. Knight was employed by GTI, I tried to assign employees who did [not] want' to' work with Mr. Knight to alternative projects with other Field Technicians as best possible.

(Doc. 25-7 at 2, ¶ 7). Bowerman noted that “employees including Chris Howard and Len Bracken reported to me that Mr. Knight had used marijúana while on-the-clock at GTI. After the reports of drug use, Mr. Knight refused to take a drug test and told me that he would never stop smoking marijuana.” (Doc. 25-7 at 2, ¶ 8).

Len Bracken stated the following in his declaration:

Based on my experience working with Ronald Knight on a daily basis, his performance was very poor. Ronald Knight was extremely slow in performing simple work tasks and would spend a large amount of his time during the shift finding ways to keep from performing required work. For example, Mr. Knight frequently and constantly made walks to our work truck for tools or water while the rest of the crew was performing manual labor. In addition, Mr.' Knight often stood around on a job site and watched others perform work. Mr. Knight would try to cut corners on work quality in order to complete job tasks as quickly and'easily as possible. I knew "and understood that whenever I was assigned to a [work site] with Mr. Knight that he would not perform an equal load of the required work and therefore I would need to work at a quicker pace so that we could finish the job in a timely fashion.

[ ] On one occasion while working with Ronald Knight at a [job site] in Georgia, Mr. Knight was assigned to perform simple grounding work on a generator disconnect. Though this particular work task typically takes approximately 15 minutes to complete, Mr. Knight spent approximately 2 hours working on it. While performing other work duties, I watched Mr. Knight and noticed that he was working very slowly on this simple task. As a result and because Mr. Knight was my partner, I had to complete other work duties and tasks on the [job site] that Mr. Knight could have performed himself had he finished the grounding work in a timely manner.

(Doc. 25-6 at 2, ¶ 6-7).

Michael Jones stated that:

[u]nless we know the job site will be close to somewhere we can eat, GTI employees typically bring lunch so that we can eat quickly and continue working to complete the job. Ronald Knight, however,, refused to bring lunch with him. I believe that he refused to bring lunch so that he [could] request to stop working and take a lengthy lunch break.

(Doc. 25-9 at 2-3, ¶ 9). Jones also described Knight’s job performance as “generally poor,” and stated that Knight “often refused to perform certain assigned work and job tasks,” and “often would disappear from the [work site] for lengths of time.” (Doc. 25-9 at 2, ¶ 8). Jones also noted that he “personally saw Ronald Knight smoking marijuana while on-the-clock or at a GTI job site.” (Doc. 25-9 at 3, ¶ 10).

Tommy Payton stated in his declaration: Because I supervise GTI’s Tower Crew, I only worked with Ronald Knight on a few occasions. On several occasions, however, I heard other GTI employees including Scyler Stephenson and Len Bracken complain that Ronald Knight’s work performance was poor and that they did not want to work with Ronald Knight moving forward because Mr. Knight failed and/or refused to perform assigned work tasks on job sites.

(Doc. 25-12 at 2, ¶ 7).

Brandon Reno stated:

During my employment with General Telecom, I worked with Ronald Knight on a daily basis during May and June 2015. During the [time] I worked with Ronald Knight at [job sites], he displayed extremely slow and poor work performance. For example, while performing a generator installation, Mr. Knight worked in the air conditioned shelter at the job site while the rest of the crew worked in the sun. On that day, Mr. Knight took approximately six hours to complete what is generally two hours of electrical work on the generator.

[ ] At the end of a day’s work, the crew working with Ronald Knight would check his work to ensure that he actually completed whatever tasks he said he was working on during the day and that his work met GTI and customer’s standards. The crew at times found Mr. Knight’s work tasks were not completed or did not meet standards and thus had to complete the tasks for him or redo his work.

(Doc. 25-10 at 2, ¶¶ 6-7). Reno also stated that:

When I began my employment at GTI, I was assigned to perform preventative maintenance work on generators with Ronald Knight. Mr. Knight was expected to train me regarding preventative maintenance on generators. As part of the job, Mr. Knight and I were required to change the oil in generators that had over 50 hours. Mr. Knight, however, instructed me to not change the oil in the generators and to falsify the job completion paperwork. In addition, the work required certain testing of generators and paperwork certifying the completion of the testing. Mr. Knight told me to simply complete the.paperwork stating that testing on the generators had been completed even though it had not been completed. I refused to falsify the paperwork and reported Mr. Knight’s conduct to GTI management.

(Doc. 25-10 at 2, ¶ 5).

3. Knight’s Insubordination

Chamoun explained that Knight was frequently insubordinate and disrespectful to him." The following exchange took place in his deposition:

A. .. .He insulted me and offended me.

Q. How did he do that?

A, “Fucking no.” These were his words. The “fucking,” aggressive, violent, verbal abuse was his constant response tó "my — to my communications with him.

Q. When did he do that?

A. On several, several occasions.

Q. Are they noted [in writing]?

A. ,,, [T]he “Fucking no” and “Fucking yes” and “I’ll fucking” this — excuse my language — were not recorded maybe in some of these documents because I feel insulted that these words were directed toward me.

Q. When you were telling him what to .do?

A. No, sir. When I told him, what not to do,

Q, Okay. Well, when you gave him instruction, whether to do it or not do it, he used the curse words toward you?

A. Not curse wordjs. Insulting, violent, abusive language, yes. '

Q, When he said “Fucking no,” that was his response to you giving him instructions?

A. It was more than that, sir.

Q. Okay. He was aggressive; is what you’re—

A. Yes. His eyes would bulge out, his face will turn red, and he will say, “Nobody will fucking tell me where to smoke and where not to smoke;” That was an example, one example of that.

(Doc. 25-4 at 10(35-36)).

However, Chamoun admits that the Plaintiff was riot fired for acts of insubordination. In his deposition, the following exchange took place:

Q, So, why didn’t you just fire him for one of those two times when' he was being insubordinate to you?

A. .. .Thank you for this question. It’s an excellent question that I ask myself that every day, every hour of the day and the night.

Q. Well, then you must have a really good answer.

A. No. It’s stupidity oh my part.

Q. Okay. Á. It’s' a mistake on my part. And it’s out of the goodness of my heart and love and respect for Mr. Knight.

(Doc. 25-4 at 12(41)).

C. Knight’s First “Termination” and Subsequent Probation

In March 2014, Chamoun decided to terminate Knight after Knight tested positive for illegal drugs (marijuana). (Doc. 25-1 at 3, ¶ 10.a.). After Knight was notified of his termination, Knight “begged and pleaded” to stay. (Doc. 25-1 at 3, ¶ 10.a.). Chamoun agreed to let Knight stay employed, on probationary status, on the condition that any future policy or procedure violations or performance issues would result in his immediate discharge. (Doc. .25-1 at . 3, ¶ lO.a.). Knight admitted in his deposition that he continued to smoke marijuana “at his house” after the failed drug test and while he was still employed by GTI. (Doc. 26-2 at 32(121-122)). Chamoun understood that Knight had stopped using marijuana as part of his continued employment.

D. The “Fiber Optic Pedestal” Incident

In his declaration, Bracken describes the following incident:

On or about February 19, 2016, I was assigned to work with Ron Knight on a job site in Springville, Alabama on Simmons Mountain for T-Mobile. On that day, Knight and I were assigned to dig an approximate 60 foot ditch by hand because heavy machinery was prohibited in the area. Knight became very upset at the prospect of digging the ditch-as required by hand. Knight told me that he refused to help dig the ditch by hand and sat in the truck while I began digging. After I had dug approximately 20 feet of the ditch, Knight got out of the truck and grabbed a pick axe. Knight began wielding the axe around wildly and violently. I was afraid for my personal safety and I personally observed Knight intentionally damage a fiber optic pedestal with the axe, which I understand GTI later had to pay. to have fixed and/or replaced. As a result, ,L reported Knight’s behavior to Jeff Bowerman that afternoon. I further, notified GTI management that I could not work [with] Knight in the future because of his violent behavior and overall poor work ethic. After Knight broke the pedestal, he took a break from the job and I dug almost the entire ditch myself while Knight watched me over an approximately six hour period. I did not continue to work on projects with Mr. Knight after‘this incident.

(Doc. 26-6 at. 3, ¶ 9). Mr. Knight claims that he damaged the pedestal “accidentally.” (Doc. 25-2 at 36(137)). In his deposition he stated: “I was using a pickaxe. And, like I said, it was froze [sic] like that (indicating). It was solid ice. Pick was bouncing off of it. I just accidentally hit it.” (Doe. 25-2 at 36(137)).

When asked in his deposition if there was “a reason you didn’t fire him for that?” Chamoun testified: “[m]y stupidity, my mistake, and my good heart.” (Doc. 25-4 at-13(47)). The following exchange also took place:

Q. And the reason you didn’t fire him for that is the same? Correct?

A. I should have fired him ten times already, but I didn’t, yes. (Doc. 25-4 at 12(48)).

E. The Fainting Incident

It is undisputed that, on June 9, 2015, the. Plaintiff passed out, on a job site, as a result of his blood sugar getting too low. (Doc. 25-2 at 41(159), 42(163)-43(165)). The Plaintiff and the rest' of his crew had stayed at a hotel the night before. For breakfast the Plaintiff had only a muffin at the hotel. Because he understood from Chris Howard that the job would last only a couple of hours, the Plaintiff had only a pack of crackers in his lunch box, which'he ate early in the day at around 10:00 am.

The job took longer , than expected however, and, around noon, the Plaintiff began feeling ill, and told the others he needed to eat. -Knight testified that* “when I start to feel really bad when my diabetes really acts up, the sunlight just is a big glare and I can’t — I can’t see. So I went into the shelter and I sat down, and next thing I know Chris Howard was picking me up off the floor.” (Doc. 25-2 at 43(165)). This was arounds 3:00 pm. (Doc. 25-2 at 43(165)). The Plaintiff told Chris Howard that he needed food, and Howard sent another employee down the road to Jack’s. Within an hour, Knight felt better.

Howard called Bowerman, and Bower-man told Howard to bring Knight to the shop. (Doc. 25-3 at 13(45); doc. 25-7 at 3, ¶ 10; doc. 25-2 at 43(166)). Chamoun

testified:

After his incident, Mr. Knight came to my office. And as soon as I saw him, I said, “Ron, you-need to get medical”— “to be checked out and get a drug test.” And he said: “No, I don’t want to do that today. Fucking no.” And he walked away.

(Doc. 26-4 at 20(75)). Bowerman testified that he saw Knight at the shop too and told Knight that he needed to go to the hospital, but that Knight refused and did not say why. (Doc. 25-3 at 13(47)). Iirhis declaration; Bowerman states:

When Mr. Howard and Mr. Knight arrived at GTI, I instructed Mr. Knight that GTI needed to take him to the hospital for treatment and a post-incident drug test. Mr. Knight, however, told me that he was not going to see GTI’s doctor and would make an appointment with his own personal doctor at his convenience. I told Mr. Knight a drug test was required by GTI policy. Mr. Knight then got in his vehicle and left the premises.

(Doc. 25-7 at 3, ¶ 10).

The following exchange took place in the Plaintiffs deposition:

Q. .. .And' did you ride back to the shop in Bessemer with Chris Howard?

A. Yes.

Q. When you arrived at the shop, what did you do?

A. Got my tools out of Chris’[sj truck and put them in my truck. I think I talked to [Dr.] Lee [Chamoun], I’m not sure, about Lee said I needed to go see a doctor and get it — and get a drug test.

Q. But you didn’t go on that day, did you? A. No. It was late when we got back. I explained to Lee that it was my diabetes is why I passed out. And once I got something to eat, I was fíne. But he still wanted me to go see a doctor and get a drug test. So I went the very next morning. (Doc. 25-2 at 43(168) — 44(169)). Knight admitted in his deposition that he knew that after any type of work-related accident or injury he would be required to take a drug test immediately. (Doc. 25-2 at 32(123)).

It is undisputed that, after Knight left, Chamoun sent him a text message asking him to “[p]lease seek medical treatment and also please get a drug test done today or tomorrow at the latest. We need these tests after every incident for ins [sic] requirement.” (Doc. 34-2 at 4). Although Chamoun testified that “[w]e have a specified doctor that he’s been to twice when he was injured on the job, and he went to our company-designated doctor and — that everyone goes to” (doc. 25-4 at 20(76)), Chamoun admitted that at no time did he ever tell Knight specifically to' go to this doctor (doc. 25-4 at 21(77)). Chamoun explained that the requirement to go to this doctor

was common knowledge and...he has been to that same doctor twice. You just assume this is our doctor, that’s where you go. Unless he wanted to go to an emergency room, which we wanted him to as soon as the incident happened, to go to an emergency room. When he refused and showed up at the office, then I told him go to the doctor if not go to an emergency room.

(Doc. 25-4 at 21(77)).

The next day Knight took a five panel drug test and the results were negative. (Doc. 25-2 at 46(179-180), 115). "When confronted with these test results in his deposition, Chamoun testified:

A. The drug test that we require people to seek is our designated drug testing center and workmen’s comp physician. And this was not performed at that •center. The drug test we perform is a ten-panel drug test. If I remember, this is a five-panel drug test. And comment that Mr. Knight made to people the day before he took this drug test, or two or three days before he did it, he “will not go to no fucking hospital,” and if his drug test — and if he does take a drug test, it will be positive. He wants to go to a doctor’s office where his drug test will be negative.

Q, Did you hear him say that?

A. No, sir.

(Doc. 25-4 at 14(50-51)).

F. Employee Warning Notices

The record contains seven written “Employee Warning Notices” which were completed by Chamoun and which report conduct allegedly engaged in by Knight. (Doc. 25-4 at 39-45). The purpose of these “warnings” is unclear since, even though there is a place for doing so on each form, none of the forms is signed by the Plaintiff, and Chamoun admits that he never showed any of the forms to the Plaintiff. Chamoun stated that he “told them to him verbally” (doc. 25-4 at 10(33)) since the Plaintiff could not read. Although it is unclear from the record the date each of these notices were created, Chamoun testified that “these were things 1 witnessed specifically on these dates.” (Doc. 25-4 at 13(48)). Again, Knight testified that no rules violations were ever discussed with him. (Doc. 25-2 at 34(129)).

1. December 12, 2014

On this warning, Chamoun has written:

I. saw Ronnie Knight smoking at GTI as he was talking to James Stephenson. When I approached them, Ronnie threw down his cigarette as he cursed me. I told him that smoking is not allowed at GTI. And to please remember that. He walked away. So I asked James Stephenson what was Ronnie talking to him about and James said, [“] he just wanted to talk about shit and ,stuff.[”]

(Doc. 25-4 at 39). The applicable “Violation” marked was “Conduct.” The Plaintiff disputes that this conversation took place. (Doc. 25-2 at 34(131)). Referring to this warning, the following exchange took place in Knight’s deposition:

Q. It refers to you smoking on General Telecom’s premises and that Dr. Cham-oun told you that smoking was prohibited.

A. No.

Q. Do you remember that discussion in December 2014?

A. No.

(Doc. 25-2 at 34(131); see also doc. 25-2 at 100 (December 12, 2014, warning notice). Regardless, it is undisputed that Knight repeatedly broke the smoking rule.

2. January 15, 2015

On this warning, Chamoun has written: “Ron has not been to work for 4 days and has not presented to us a vacation or time off request as per GTI, policy.” (Doc. 25-4 at 40). The applicable “yiolation” marked was “Attendance.” Chamoun confirmed that this write up was not created on January 15, 2015. (Doc. 25-4 at 13(45)). Knight states that the facts stated in this warning are not true and that he “wouldn’t be a no show person.” (Doc. 25-2 at 35(133)).

3. February 19, 2015

On this warning, Chamoun has written: Ronald Knight was working with Lynn Bracken at a Springville job site today. Ron refused to work, complained and cursed GTI and while Lynn was digging the ditch of 55’, Ron was calling and getting mad and sitting in his truck on the phone making phone calls. He finally got an axe and went into a tirade and started swinging the . axe. Lynn, was afraid for his safety. Ron swinging at the fiber optic pedestal and broke it. GTI now [has] to send a crew to repair the damage that was negligently caused by Ron.

(Doc. 25-4 at 41). The applicable “Violations” marked were “Carelessness,” “Gross Mis-conduct,” “Insubordination,” “Personal Work,” “Safety,” and “Willful Damage to Company Property.” As noted previously, the Plaintiff admits that he damaged the pedestal, but that it was an “accident.” (Doc. 25-2 at 36(137)).

4.February 20, 2015

On this warning, Chamoun has written: After damaging the fiber optic pedestal^] [a]fter cursing and complaining all day[;] [a]fter swinging-an [a]xe in a tirade[;] [a]fter refusing to work[;] [a]fter negligently [damaging customer property^] Ron did not show up to work today.

(Doc. 25-4 at 42). The applicable “Violations” marked were “Attendance,” and “Unauthorized Absence.” The Plaintiff states that he remembers showing up for work on that day. (Doc. 25-2 at 37(141)).

5.April 13, 2015

On this warning, Chamoun has written: I observed Ron smoking inside the warehouse building as he stood right next to gasoline red gallons, spray cans, solvents, paints, [and] compressed gases containers. A sign of [sic] non smoking was facing him on the shelf. I approached him in a hurry and asked not to smoke and that it is dangerous to smoke here. He turned his back to me, smoked more, añd mumbled [“]no one can tell'me whether I can smoke or not.[”] He walked slowly as he smoked towards the exit door. GTI does not allow smoking outdoors as well due to gasoline storage tanks.:

(Doc. 25-4 at 43; see also doc. 25-4 at 11(37-38) (reading the contents of' the warning)). The applicable “Violations” marked were “Gross Misconduct,” and “Gross Insubordination.” In his deposition, Chamoun testified that on this occasion Knight also cursed at him, using the word “fucking.” (Doc. 25-4 at 11(39)). Knight states that he does not remember the conversation referenced in this.warning. (Doc. 25-2 at 37(143)). Further, as noted above, it is- undisputed that Knight repeatedly broke the smoking rule by smoking around dangerous chemicals.

6. June 8, 2015

On this warning, Chamoun has written: Ronald was smoking inside adjacent to flammables and gasoline tanks and by the sign that said [“]no smoking.[”] He looked at me with anger, turned his back and kept smoking. I said [“] Ron please you cannot smoke at GTI and it is not safe man, it’s really dangerous to [sic].[”] He walked away; stayed in the warehouse and kept smoking indoors where it is dangerous and prohibited due to safety. I walked .up to Jeffrey Bower-man and said [“] Jeff please tell Ron he cannot smoke in here, it’s not safe and this is not the first time he [has done] it.[”] Tell him I am serious and that [this is] his 3rd warning that I am going to write up.

(Doc. 25-4 .at 44; see also doc. 25-4 at 11(39-40) (reading the contents of the warning)). No applicable “Violations” were marked, although the word “gross” has been handwritten in twice over the both words “Conduct,” and “Insubordination.!’ Chamoun testified that on this occasion as well Knight cursed at him, although it is not documented. (Doc. 25-4 at 11(40)). Knight does not remember the conversation referenced in this writeup. (Doc. 25-2 at 37(144)-38(145)). Again, however, it is undisputed that Knight repeatedly' broke the smoking rule.

7. June 9, 2015

On this warning, Chamoun has written: Chris Howard called us today and said that Ronald Knight has passed out inside the cell tower shelter as he was sitting down on the floor of the shelter while smoking a cigarette inside. Smoking inside the shelter is prohibited by the customer.

(Doc. 25-4 at 45). Under “Action Taken” appears the following language: “Informed Chris to take Mr. Knight to the nearest hospital E.R. for treatment and for [drug testing] as required by our Insurance.” (Doc. 25-4 at 45; see also doc. 25-4 at 12 (reading the contents of the warning)). The applicable “Violations” marked were “Gross Misconduct,” and “Gross Insubordination.” Chamoun testified that he did not go over this warning, even verbally, with Knight. (Doc. 25-1 at 20(73)-(74)).

G. The Downturn in GTI’s Business

Until the fall of 2014, GTI worked on projects using crews of as few as one and as many as five employees on a site. For a large part of the time during which the Plaintiff was employed as a helper, GTI installed and maintained generators at customer sites, but that work (which often required a helper) largely dried up after the completion of the General Dynamics contract ending June 12, 2015. Furthermore, in 2014 and thereafter, GTI’s customers were facing changes in the industry relating to charges for data and other services, and began insisting that GTI perform services with crews of one, except when the services require a certified tower climber to climb, and where the law called for more than one. Only individuals with climbing certifications perform work climbing cell phone towers to install or maintain equipment, and only those able to operate the truck GPS can serve on one-person crews. Knight could not operate the GPS necessary to enable him to find the customers’ remote locations and he lacked certifications necessary to do tower climbs, and knowledge and skills for other available work. In other words, Knight lacked skills necessary for work available following changes in the telecommunications industry and loss of work with customer General Dynamics beginning on June 13, 2015. Accordingly, Knight was discharged as part of a reduction in force during, the third week of June 2015.

H. Knight’s Termination

After the incident where the Plaintiff passed out, Knight returned to work on June 10, 2015, and worked June- 11 through June 13, and June 15 through June 19, 2015. On the evening of Saturday, June 21, 2015, twelve days after passing out from the episode on June 9, the Plaintiff received a text from Jeff Bowerman telling him “Stay home tomorrow it’s going to be [too] hot for you to work.” (Doc. 25-3 at 31). Plaintiff responded, “I will be fine tomorrow I will see you at 6.” (Doc. 25-3 at 31). Bowerman replied, “I can’t let u work.” (Doc. -25-3 at 31). Plaintiff asked, “Why[J I’ve been working in the heat,” and Bowerman replied, “You will have to talk to Lee [Chamoun].” (Doc. 25-3 at 31). In Bowerman’s deposition, the following exchange took place:

Q. Why did you tell him, ‘You need to stay out of the heat”?

A. Because heat will make you sick if you’re — I don’t know.

Q. Will make you sick if you’re diabetic?

A. Will make you sick if you’re in it for a long period of time. (Doc. 25-3 at 14(50)). It is undisputed that Bowerman had been told by Chamoun to tell Plaintiff he should not work because it was too hot. Chamoun testified that he had Bowerman tell Plaintiff to stay home and rest because the last time he talked to him, the Plaintiff said “I’m fucking tired. I’m too fucking tired.” (Doc. 25-4 at 31(117)).The Plaintiff testified that he never told Chamoun he was tired. (Doc. 25-2 at 49(191)).

Nevertheless, Knight returned to GTI the next morning, July 22, 2015, to work. That day, the Plaintiff spoke to Chamoun, who told him “work was slow,” that they had laid someone else off in' Mississippi, and that Plaintiff should “go home and rest” and Chamoun would call him. (Doc. 25-2 at 49 - (191)); Chamoun stated the following in his deposition:

I wanted to tell him that he was terminated, but T was afraid of him, he’s already used aggressive, violent, abusive language with me. So I told him, “You’re tired, please go home and get some rest.” I was'afraid of telling him'that he’s being laid off at that point.’

(Doc. 25-4 at 31(119)).

The Plaintiff eventually found out that he had been terminated when he called Chamoun on June 24, 2015, and Chamoun told him that he was being terminated for “inefficiency.” (Doc. 25-2 at 49(192)). Chamoun testified that it “was a lengthy process” (doc. 25-4 at 18(68)) which culminated in Knight’s termination

[a]fter extreme deliberation bn my part and evaluating Mr. Knight’s incompetence, Mr. Knight’s ’gross misconduct, and after our lack — occurrence of lack of work, and after Mr. Knight has violated repetitively the terms of his probation from 2014, the termination and rehiring.

(Doc. 25-4 at 19(69)).

‘ ^ ⅛ undisputed that “[n]o medical condition-known or unknown — played any role in the decision to discharge Knight.” (Doc. 24 at 14, ¶ 11 (proffered by Defendant and not disputed by Plaintiff). Chamoun, Bowerman, and other company employees are diabetics. Knight told Chamoun that he too was a diabetic and that he (Knight) believed his diabetes caused him to faint, No one told Knight he was discharged because of his diabetes. No one told Knight anything leading him to conclude he was discharged because he had diabetes. Knight knows of no similarly situated employees, who engaged in the same alleged conduct as he, who were retained in the employment-of GTI, Knight has no other facts supporting the conclusion he was discharged because of diabetes.

I. Knight’s Unemployment Claim

The Defendant did not fight the Plaintiffs unemployment claim. Chamoun stated that the company generally does not fight unemployment claims “[u]nless it was something that we believe that the — it was intentional or involves — it involves fraud.” (Doc. 25-4 at 26(99)). The only reason Chamoun gave to the Alabama Department of Labor for the Plaintiffs discharge was “lack of work.” (Doc. 25-4 at 32(122-123)).

J.Others Who Were Laid Off/Rehired

About the same time that the Plaintiff was laid off, the Defendant also laid off Dyrk Trosclair in Mississippi, and Johnny Wills in Alabama. (Doc. 25-1 at 5, ¶ 11.e.). Defendant hired two employees/independent contractors after it terminated the Plaintiff. One employee, Jason Thompson, “was hired as a tower climber to- climb and perform work on telecommunications and satellite towers, which Mr. Knight was not certified to perform.” (Doc. 25-7 at 3, ¶ 15). The company also re-hired Mike Jones, whom Bowerman stated could perform technical electrical tasks such as integration and fiber optic work on telecommunications sites-also tasks Knight could not do. (Doc. 25-7 at 2, ¶6). Jones worked on various crews doing various tasks, including installing equipment such as batteries and power plants. Chamoun testified that Mike Jones “is multitasked, like everybody else at the company” and also performed non-skilled labor such as “bathroom receptacle, cleaned warehouse, technician, LTE.” (Doc. 25-4 at 27(102)).

It is undisputed that the Defendant did not terminate Jason Thompson or Stephan Glass despite a physical altercation in which both of them were engaged at work. (Doc. 25-4 at 23(85-88); doc, 25-4 at 49).

K. Knight’s_Post-Termination Threats Against Other Employees

On August 3, 2015, Mike Jones informed Chamoun that Knight had called him (Jones) and “threatened [him] with bodily harm if [he] [made] a statement as to [Knight’s] perform[ance] at GTI.” (Doc. 25-1 at 77). Chamoun reported to the Bessemer police that Knight had “threatened at least two of our employees.” (Doc. 25-1 at 79).

L. Alleged Denial of Accommodations

Knight testified that he has not any issues before June 9, 2015, performing the duties of his job because of his diabetes. (Doc. 25-2 at 41(158)). He also stated that there were no jobs he could not perform because of his diabetes, and he did not need any type of help or assistance to perform his job. (Doc. 25-2 at 41(158)). Prior to June 10, 2015, Knight never requested any type of accommodation. (Doc. 25-2 at 46(177-178)). At that time he presented a doctor’s note to Chamoun which stated that the Plaintiff needed “regular breaks for rest and meals.” (Doc. 25-2 at 45(174); doc. 25-2 at 1Í4). When asked about this in his deposition, Knight agreed that he had always been permitted to take sufficient breaks, even before that request, stating that he “took breaks as' [he] needed them.” (Doc. 25-2 at 46(177)).

The following exchange took place during Bowerman’s deposition:

Q. Did anybody let you know that he needed — that Mr. Knight needed to take regular breaks?

A. Dr. Lee [Chamoun] did tell me that Ron Knight needed to take extra breaks.

Q. Did he take extra breaks?

A. He, from my observing him, yes, he took many breaks.

Q, Extra breaks?

A. Extra breaks. (Doc. 25-3 at 25(94)). The Plaintiff testified that Chamoun told him after he passed out that he could not take a break. (Doc. 25-2 at 22(84)). No one else ever told him that he could not take a break. (Doc. 25-2 at 23(85)). He was never prohibited from taking a break. (Doc. 25-2 at 28(105)). However, Knight testified:

Because I’ve — people that I’ve worked with know that I’m a diabetic. And when I told them that I feel bad, I need to eat, that — they told me that the job’s almost done, wait, wait, wait, where they waited too late and I passed out. Chris Howard knows I’m a diabetic. You know, Mike Jones, everybody I’ve ever worked with. Scieler knew I was diabetic. When I told him I had to eat, Scieler would always say okay, let’s go eat, you need something.

(Doc. 25-2 at 39(152)).

Chamoun testified in his deposition that at the time the Plaintiff passed out Cham-oun did not know that the Plaintiff was a diabetic. (Doc. 25-4 at 12(43)). At first, Chamoun testified that he only learned of the Plaintiffs condition when the Plaintiff filed his EEOC charge alleging disability discrimination. (Doc. 25-4 at 12(43)). Later, • Chamoun admitted to having received a text message from the Plaintiff on June 9, 2015 which stated “I got sick because of my diabetes.” (Doc. 25-4 at 16(57)).' Cham-oun testified that before that text he had never been informed, in any way, that the Plaintiff had diabetes. (Doc. 25-4 at 18(67)). The Plaintiff states that he informed the Defendant of his diagnosis “years before [his] employment ended,” because he informed it right after he was diagnosed. (Doc. 25-2 at 40(156)).

M. COBRA

Chamoun states in his affidavit that he: provided a blanket notice... that included COBRA information and also notified the reader how to obtain additional information; I had used this notice in the past without incident with employees, and employees who had elected COBRA coverage in response.

(Doc. 25-1 at 7, ¶ 16.b.; doc. 25-1 at 83). A handwritten note appears in the record which reads:

On Thursday, July 30th 2015[,] around 3 PM, Ron Knight[’]s wife Kim came by and picked up his last paycheck. Dr. Lee Chamoun and I gave

Kim a release form to read and sign. She read it and said she did not

want to sign it. We gave her the check and she left. (Doc. 25-4 at 37). The-note appears to be signed ■ by Janis Rosser. (Doc, 25-4 at 37). In her declaration, Ros-ser confirmed these events and added that she gave the form to Mrs. Knight to “have him sign and return it to GTI.” (Doc. 25-11 at 2, ¶ 8). She states that Mrs: Knight “stated that she would ask Mr. Knight-to sign [the form] and took it.. .when she left the premises.” (Doc. 25-11 at 2, ¶ 8). The “release” to which the note refers appears at least 4 times in the record'as documents 25-1 at 83, 25-2 at 172, 25-4 at 38, and 25-11 at 6. Chamoun also testified that Mrs. Knight took the document with her. (Doc. 25^4 at 7(22)). Mr. Knight testified in his deposition that he never received the document, and that his wife did not receive it. (Doc. 25-2 at 51(197-198)).

On June 26, 2015, Chamoun received an email from Kerri Edwards at Blue Cross/ Blue Shield which stated: “Based on the group size-COBRA is not available to this group. If the group is larger than 20 employees, please send me a letter so that we can update.” (Doc. 25-1 at 81). On June 30, 2015, Chamoun wrote Edwards: “[B]efore terminating [Knight arid one other employee] we had 21 employees covered by BCBS. After this termination.. .the employee number covered is 19. Does COBRA apply?” (Doc. 25-1 at 81). On July 1, 2015, Edwards responded with “COBRA does not apply for this group.” (Doe. 25-1 at 81).

It is undisputed that at no time did Knight notify GTI that he wished to elect COBRA coverage or that he received medical charges that otherwise would have been covered by COBRA coverage. Knight concedes he joined his wife’s healthcare plan through her employer shortly after his GTI discharge.

III. ANALYSIS

A. Summary Judgment Will Be Granted to the Defendant on the Denial of Reasonable Accommodations Claim in Count Two

An entity covered by the ADA discriminates by

not making reasonable accommodations 'to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

42 U.S.C.A. § 12112(b)(5)(A); see also 29 C.F.R. § 1630.9(a) (“It is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a’ disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.”).

To state a prima facie claim for failure to accommodate under the ADA, the plaintiff must show that: (1) [he] is disabled; (2) [he] is a qualified individual; and (3) [he] was discriminated against by way of the defendant’s failure to provide a reasonable accommodation. “The plaintiff bears the burden of identifying an accommodation, and of demonstrating that the accommodation allows [him] to perform the job’s essential functions.”

Bagwell v. Morgan Cty. Comm’n, 676 Fed.Appx. 863, 865 (11th Cir. 2017) (citing and quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001)).

The Plaintiff does not argue that he requested any accommodation which was denied. Indeed, it “ is undisputed that the Plaintiff was never denied any breaks (the accommodation he requested) either before he formally requested them, or after. Instead, he argues that he was fired so that he would not have to be accommodated in the future. In his brief in response to the motion for summary judgment he writes:

A reasonable jury could find that Plaintiff, or his doctor on his behalf, requested such an accommodation prior to his termination when he provided a note from his doctor communicating his need to take occasional breaks for his diabetes. Based on the evidence presented above, a reasonable jury could find that Defendant terminated Plaintiff, at least in part, to avoid providing that reasonable accommodation going forward. Accordingly, summary judgment should be denied on Plaintiffs reasonable accommodation claim.

(Doc. 33 at 32) (citations omitted) (see also doc. 33 at 28 (“A reasonable jury could find that - Defendant terminated Plaintiff to avoid accommodating Plaintiffs disability going forward.”)).

The Plaintiff provides no authority, or argument, that the Eleventh Circuit has recognized a claim for denial of reasonable accommodations in the future. Furthermore, this Court finds that such a claim conflicts with the language of the third element of ,the prima facie case which requires the Plaintiff to demonstrate that he “was discriminated.against by way of the defendant’s failure to provide a reasonable accommodation.” Bagwell, 676 Fed.Appx. at 865 (emphasis added). The Plaintiff is actually arguing either a retaliation claim, or a straight discrimination claim that the Plaintiff was fired “because of’ his disability. The former type of claim is not made in this case. The latter is made in Count One.,

Because there is no genuine issue of material fact that the Plaintiff was provided all accommodations for which he asked (and did not ask), and because the Court holds that the claim in Count Two can only.be-based on a past denial of an accommodation, summary .judgment- will be granted as to the failure to accommodate claim, and Count Two will be dismissed.

B. Summary Judgment Will Be ' Granted to the Defendant on the Termination in Violation of the ADA Claim in Count One

Under the ADA, it is unlawful for an employer to discriminate on the basis of disability in regards to the “terms, conditions, and privileges of employment,” including “discharge of employees.” 42 U.S.C. § 12112(a). “Employees may claim unlawful discrimination under the ADA by showing either that the employer’s facially neutral conduct had a disparate impact on members of a protected class (disparate impact) or that the employer treated certain employees worse than others because they possessed a protected trait (disparate treatment),” Norris v. GKN Westland Aerospace, Inc., 921 F.Supp.2d 1308, 1313 (M.D. Ala. 2013) (Thomson, J.) (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003)). In the instant case, the Plaintiff claims that- he was subjected to “disparate treatment” when the Defendant “terminated. . .and failed to reinstate him.” (Doc. 1 at 7). The Eleventh Circuit has noted:

We analyze ADA discrimination claims under the McDonnell Douglas burden-shifting analysis applied to Title VII employment discrimination claims. Earl v. Mervyns, Inc., 207 F.3d 1361, 1366 (11th Cir.2000). Under that framework, a plaintiff-employee first establishes a pri-ma facie case of discrimination. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004). To establish a prima facie case of ADA discrimination, a plaintiff must show (1) a disability, (2) that she was otherwise qualified to perform the job, and (3) that she was discriminated against based upon the disability. Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir.2004). The burden then shifts to the defendant to articulate a legitimate reason for its employment action. Wilson, 376 F.3d at 1087. If it can, the burden shifts back to the plaintiff to offer evidence that the reason is pretextual. Id. If the plaintiff fails to show pretext, we affirm the grant of summary judgment on that ground. EEOC v. Total Sys. Servs., 221 F.3d 1171, 1177 (11th Cir. 2000). Where the defendant has met its burden of -articulating a legitimate, nondiscriminatory reason for its action, we may assume without deciding that the plaintiff has established a prima facie case and decide the case on the question of pretext. See, e.g., Holifield v. Reno, 115 F.3d 1556, 1564 (1997); Wascura v. City of S. Miami, 257 F.3d 1238, 1243 (11th Cir.2001). Thomas v. Dolgencorp, LLC, 645 Fed.Appx. 948, 950-51 (11th Cir. 2016).

1. The Plaintiff Has Not Established a Prima Facie Case of Discrimination

There is no dispute that the Plaintiff has a disability, diabetes, and that he was otherwise qualified to perform his job. In this case,' the parties dispute only the third element of the Plaintiffs' prima facie case-whéther he was discriminated ' against based upon the disability,

a. The Complaint Alleges Only that the Plaintiffs Termination Was Discriminatory

The Plaintiff argues that “a reasonable jury could find that Defendant took adverse actions [ (plural) ] against [the] Plaintiff, including terminating his employment because of his diabetes.” (Doe. 33 at 20-21). The Plaintiff states that “[ajlmost immediately after learning that Plaintiff had diabetes [after the June 9, 2015 passing out incident], Chamoun began taking adverse employment actions against him” in the form of “creating post-hoc documentation of alleged performance and conduct issues 'dating back to December, 2014.” (Doc. 33 at 21). He argues that “[a] reasonable jury 'could...find that the warning notices were all created by Lee Chamoun after Plaintiffs June 9, 2015[,]... [passing out] episode.” (Doc. 33 at 22). Later, he also references the warning created for the June 9, 2015, incident. (Doc. 33 at 22-23).

First and foremost, the Complaint alleges only one adverse action — the Plaintiffs termination. {See doc. 1 at 7-9). “A plaintiff may not amend [his] complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Furthermore, the Plaintiffs argument that the creation of these warnings was discriminatory is without merit. First, it contradicts Knight’s deposition testimony where he states that he informed the Defendant'of his diagnosis “years before [his] employment ended.” (Doc. 25-2 at 40(156)). Second, assuming that Chamoun only knew about the Plaintiffs condition after June 9, 2015, there is no evidence that all (or any) of the “warnings” in this case were created after the June 9, 2015, episode, except for the one which concerned the episode which occurred on that date. The Plaintiffs argument, is based on the following exchange in Chamoun’s deposition:

Q. Did you write all of these warnings up on the day these events, happened?

A. No, sir. This was not the day it happened. When Ron disappeared from work for four days, we assumed he’s not coming back. Then he returned. And we knew then that he’s not — he just left the job without notice, without asking for pay request.

(Doc. 25-4 at 13(45)). This exchange concerned only one warning, datefi January 15, 2015, in which Chamoun wrote that “Ron has not been to work for 4 days and has not presented to us a vacation or time off request as per GTI policy.” (Doc. 25-4 at 40; see also doc. 25-4 at 12(44) — 13(45)). Even if the Court assumes that none of the warnings were created at the time of the events in question, there is no evidence to suggest that all (or even any) of them were created after June 9, 2015, except, again, the one which related to the episode which occurred on that date. Chamoun testified that each warning, no matter when it was created, memorializes events which occurred on the date shown thereon. -The Plaintiff is merely speculating.

Further, it is undisputed that no action was taken against the Plaintiff as a result of the creation of the warnings themselves. The Plaintiff states that these “warnings” were never .shown to or discussed with him. “An adverse employment action is an ultimate employment decision, such as discharge or failure to hire, or other conduct that alters the employee’s compensation, terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or adversely affects his or her status as an employee.” Menzie, 549 Fed.Appx, at 894 (internal quotations and citations omitted). “If an action has no effect on an employee, it is not an adverse employment action.” Clark v. Potter, 232 Fed.Appx. 895, 896 (11th Cir. 2007) (citing Stavropoulos v. Firestone, 361 F.3d 610, 617 (11th Cir.2004)). The only alleged act of discrimination which the Court will consider is the Plaintiffs termination.

b. There Is No Evidence that the Plaintiff Was Fired Because He Has Diabetes

(1) The Plaintiff Has No Comparators

The Eleventh Circuit has stated:

To establish unlawful disparate treatment, a plaintiff generally must demonstrate that his employer treated similarly situated employees outside of his protected class more favorably than he was treated. See Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323