Opinion
C/A 3:20-4449-MGL-SVH
12-05-2022
Nikki G. Williams, Plaintiff, v. TD Bank, N.A., Defendant.
REPORT AND RECOMMENDATION AND ORDER
Shiva V. Hodges United States Magistrate Judge
In this case, a black employee sues her former employer, alleging that she was discriminated against based on race and her disability and that her employment was wrongfully terminated.
Nikki G. Williams (“Plaintiff”), proceeding pro se,filed her complaint against her former employer, TD Bank, N.A. (“Defendant”), on December 23, 2020, alleging claims based on violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”) and the Americans with Disabilities Act, 42 U.S.C. § 12102, et seq. (“ADA”). More specifically, Plaintiff asserts four causes of action: (1) disability discrimination in violation of the ADA, (2) refusal to provide reasonable accommodation in violation of the ADA, (3) race discrimination in violation of Title VII, and (4) retaliation. [See ECF No. 8].
Plaintiff's former counsel filed the original and amended complaint in this action; thereafter, counsel moved, and was granted leave, to withdraw. [See ECF Nos. 1, 8, 24, 31].
Pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this case was referred to the undersigned for all pretrial proceedings. This matter comes before the court on Defendant's motion for summary judgment. [ECF No. 40]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Plaintiff of the summary judgment and dismissal procedures and the possible consequences if she failed to respond adequately to Defendant's motion. [ECF No. 41]. The motion has been fully briefed [ECF Nos. 44, 45] and is ripe for disposition. Also pending before the court is Defendant's motion to seal documents [ECF No. 39] and Plaintiff's motion to seal case [ECF No. 43].
Having carefully considered the parties' submissions and the record in this case, the undersigned denies the motions to seal and recommends the district judge grant Defendant's motion for summary judgment.
I. Factual and Procedural Background
Plaintiff was hired by Defendant to begin employment on November 28, 2011, as an anti-money laundering representative, in which she would review subpoenas for suspicious activity and investigate fraudulent activity related to account holders. [ECF No. 40-2, ECF No. 40-1 at 5]. After experiencing difficulties with her production and quality of work product, Plaintiff was placed on a performance improvement plan on June 8, 2017, that provided specific areas in which Plaintiff “must demonstrate immediate improvement.” [ECF No. 40-2 at 54-55, see also ECF No. 40-1 at 48-51].
On Friday, June 16, 2017, Plaintiff called out of work, submitting a doctor's note indicating she had been seen at urgent care and would return to work on Monday, June 19, 2017. [Pl. Dep. at 155-56, Ex. 25].On June 21, 2017, Plaintiff submitted an additional doctor's note from her family doctor, Nicole Henrich (“Henrich”), requesting to be excused from work from June 21 to July 12, 2017. [Pl. Dep. at 157-58, Ex. 26].
As discussed more below, the undersigned denies the parties' motions to seal sections of the record in this case. For evidence that has yet to be filed on the public docket, the undersigned employs the labelling used by the parties.
The record indicates Plaintiff contacted Aetna Life Insurance Company (“Aetna”) on June 22, 2017, to file a claim regarding her absence from work (“leave claim”). [Ex. 50 at 22-23]. On June 29, 2017, Aetna sent paperwork to Henrich, requesting information in that Plaintiff had filed a claim for “[d]isability benefits for an absence from work beginning on 6/16/2017.” [Ex. 29]. Henrich sent Aetna an attending provider statement indicating Plaintiff was “unable to perform any tasks due to emotional state,” but that she was likely to have a full recovery after three months. [Pl. Dep. at 161-64, Ex. 29].
On July 3, 2017, Aetna sent Plaintiff a letter regarding her leave claim informing her that (1) her leave under the Family Medical Leave Act (“FMLA”) was approved from June 21 to September 12, 2017; (2) her FMLA was denied from September 13 to September 20, 2017, as her FMLA leave was exhausted as of September 12, 2017; and (3) leave as an accommodation from Defendant from September 13 to September 20, 2017, was pending as Aetna was awaiting a determination from Defendant. [Pl. Dep. at 164-68, Ex. 30]. On July 12, 2017, Defendant approved Plaintiff's leave as an accommodation from September 12 to September 20, 2017; the next day, Aetna sent Plaintiff a letter informing her of Defendant's approval. [Pl. Dep. at 168-69, Ex. 31, Ex. 32].
On July 20, 2017, Henrich submitted to Aetna an FMLA certification for employee's serious health condition, again indicating that Plaintiff required leave for three months and would be able to return to work on September 21, 2017. [Pl. Dep. at 170-71, Ex. 33]. On the same day, Henrich also submitted to Aetna a behavioral health clinician statement and office visit notes, stating that Plaintiff was “unable to perform any [work] tasks due to emotional state,” that she could return to work on September 21, 2017, but that this date was “to be reevaluated with referrals.” [Pl. Dep. at 171-76, Ex. 34].
On August 16, 2017, Henrich submitted to Aetna a behavioral health clinician statement stating Plaintiff “was suppose[d] to go to counselling but has not started,” psychiatric referrals were necessary to assess Plaintiff's needs, and Plaintiff needed to be out from work until at least December 1, 2017. [Pl. Dep. at 178-81, Ex. 36]. The next day, Defendant approved the extension of Plaintiff's leave as an accommodation until November 30, 2017. [Pl. Dep. at 181-82, Ex. 37]. Aetna informed Plaintiff of the approval by letter dated August 18, 2017. [Pl. Dep. at 182-84, Ex. 38].
On September 21, 2017, Henrich sent Aetna a packet of medical records to substantiate Plaintiff's benefits claim, indicating that her estimated return-to-work date was December 1, 2017, but that the date “may change with psych's recommendation.” [Pl. Dep. at 184-86, Ex. 39].
However, on September 26, 2017, Henrich notified Aetna that she would not provide additional information due to Plaintiff's failure to comply with medical treatment and referrals for further treatment. More specifically, Henrich stated as follows:
NIKKI WILLIAMS is a current patient of TLM Medical. She has failed to comply with medical treatment and referrals for further treatment. She had referrals for Southeast Counseling on 6-22-2017 and then again on 7-27-2017. She also was referred to Dr. Krebbs on 6-29-2017 and Future Psych Solutions on 8-25-2017. She has not gone to any of the referrals. Due to her noncompliance, I can not accurately complete the paperwork,,[P1. Dep. at 186-88, Ex. 40].
Plaintiff denies that she was not compliant with her treatment, testifying that “all three of the referrals . . . were all too full to see me,” but confirmed that Henrich reported to Aetna that Plaintiff had not been compliant with her treatment. [Pl. Dep. at 187].
On October 5, 2017, and October 19, 2017, two clinical service notes were submitted to Aetna by Plaintiff or her therapist, Amber Nickerson (“Nickerson”), in which Nickerson notes that Plaintiff reported that she was “unsure of whether or not she will be capable of returning to work in December.” [Pl. Dep. at 190-95, Ex. 42, Ex. 43]. On October 27, 2017, Nickerson submitted to Aetna a behavioral clinician statement, noting Plaintiff's condition and progress had regressed and identifying a return-to-work date of January 1, 2018, but also noting that Plaintiff was still “in assessment phase; recommendations for treatment to come.” [Pl. Dep. at 196201, Ex. 44].
In a clinical service note submitted to Aetna on November 8, 2017, Nickerson states Plaintiff suggested she “extend her return to work until February 2018,” and, in response, Nickerson states she discussed with Plaintiff why extension “may not be beneficial” in that the barriers to her return would not change with more time. [Pl. Dep. at 201-04, Ex. 45].
On November 28, 2017, Aetna sent Plaintiff a letter seeking additional information related to Plaintiff's request for long-term disability benefits, informing her that the requested information would need to be submitted “by December 27, 2017 to continue reviewing your claim.” [Pl. Dep. at 205, Ex. 47]. On December 7 and 8, 2017, Aetna also sent Plaintiff's psychiatrist, Dr. Gunter (“Gunter”), two requests that he provide documentation “to support [Plaintiff's] request of extension [of leave and disability benefits] beyond 11/19/2017.” [Pl. Dep. at 205-07, Ex. 48].
On December 11, 2017, Aetna contacted both Nickerson and Gunter to obtain updated information regarding Plaintiff's leave claim. [Ex. 50 at 9]. The next day, Nickerson left a message for Aetna indicating she had “a few concerns about a few parts of [Plaintiff's] claim” and asked to speak with Aetna before submitting further clinical recommendations. Id.
On December 13, 2017, Aetna spoke with Nickerson, who stated she had not yet been able to complete the assessment due to Plaintiff's lack of cooperation with the treatment, noting Plaintiff had cancelled two office visits in late November. [Ex. 50 at 8, see also Pl. Dep. at 222-26]. Notes from that conversation include the following:
[Aetna] explained claim status and information that would be needed for consideration for extension of [Plaintiff's leave] claim. [Aetna] asked provider about intensity of treatment, given that the [Plaintiff] has been [out of work] since June. Provider agrees that more intensive treatment would be helpful, and will discuss with [Plaintiff]. At this time, provider is unsure about making an [out of work] recommendation due to [Plaintiff's] reluctance to share information and actively participate in treatment. She will talk with [Plaintiff] about it today, and will call . . . back.[Ex. 50 at 8].
On the same day, Nickerson completed and submitted to Aetna the initial clinical assessment for Plaintiff, noting that as of December 13, 2017: (1) Plaintiff had reported “increasing anxiety and depression,” (2) she was unable to collect a lot of information due to Plaintiff's failing to respond to many questions, (3) Plaintiff was not “currently working or interested in employment,” (4) Plaintiff rarely left her home, (5) Plaintiff's cousin was handling her finances and day-to-day responsibilities, (6) Plaintiff's “ability to communicate has decreased tremendously,” (7) Plaintiff's “current functioning has been severely impacted by her symptoms,” and (8) Plaintiff “will require intensive treatment to assist her in returning to her previous state of functioning.” [Pl. Dep. at 208-16, 218-20, Ex. 49]. No return-to-work date was provided. See id.
On December 18, 2017, Aetna informed both Plaintiff and Defendant that the most recent information from Nickerson prevented any further extension of Plaintiff's disability benefits. [Pl. Dep. at 228-29, Ex. 50 at 7 (“On 12/13/17, Ms. Nickerson reported that she did not have any updated information to submit, due to appointments that you had missed. She stated she would send in information once available. At this time, no updated information has been received.”)].
On December 19, 2017, an additional medical provider, Brittany Jones, submitted to Aetna follow-up psychiatric medical assessment orders and service notes based on a visit with Plaintiff that occurred on the same day, noting in part that Plaintiff had “no discernible improvement in depression” and her symptoms were “unstable (worsening or failing to change as expected),” recommending Plaintiff to submit to “voluntary inpatient hospitalization,” as her depression had proven to be refractory/unmanageable with outpatient interventions. [Pl. Dep. at 230-33, Ex. 52]. A follow-up appointment was scheduled to occur after January 1, 2018. [Ex. 52].
Plaintiff argues “[t]here is no way that I would have an appointment on January 1st, 2018, if I had already been terminated on December 29th, 2017 with no Health Insurance.” [ECF No. 44 at 5]. However, Plaintiff does not dispute that the documentation submitted to Aetna indicates that she had a follow-up appointment scheduled to occur after January 1, 2018. [See Pl. Dep. at 230-33, Ex. 52].
On December 19, 2017, Plaintiff spoke with human resources advice partner Rhonda Midgette (“Midgette”) about Plaintiff's status and intent to return to work. [Pl. Dep. at 233-37, Ex. 53 at 7, ECF No. 40-3 at 3-7, 15-17]. Defendant has submitted evidence that Plaintiff informed Midgette that she did not have a tentative return-to-work date, she was staying with relatives, she remained under doctor's care, and that Midgette should contact Aetna. [Pl. Dep. at 233-37, Ex. 53 at 7, ECF No. 40-3 at 3-8, 15-17]. More specifically, Midgette testified as follows:
I explained to her that we didn't have any evidence of an approved leave, and she could not provide a return-to-work date, and I explained that Aetna had not provided a return-to-work date, and she declined to provide one. She referred me back to Aetna She just said I'm working with Aetna, and she did not have a return-to-work date at that point.[ECF No. 40-3 at 7-8]. Plaintiff, however, disputes Midgette's testimony in part, testifying that she did not inform Midgette that she did not have a return-to-work date, but instead instructed Midgette “to please contact Aetna,” “[t]hat I was not feeling good,” and “[t]hat they had my return-to-work date.” [Pl. Dep. at 237].
Two days later, on December 21, 2017, Midgette sent Plaintiff a followup letter, stating in part as follows:
TD Bank has made several attempts to contact you regarding your request for a leave of absence and your employment status. When you spoke with HR on 12/19/2017, you indicated that you did not have a specific return to work date. You were also informed that you have exhausted all available leave options.
As you are aware, your leave of absence began on 6/15/2017, and you are currently on an unapproved leave. Based on the information you have submitted to date, we do not have a basis upon which to approve a leave of absence for you. Accordingly, TD Bank must conclude that you do not intend to return to work from this unapproved leave of absence and will voluntarily resign employment at TD Bank.
TD Bank will accept your voluntary resignation effective 12/29/2017 if we have not received notice from Aetna that your claim is medically supported and you have been released to return to work on a specific date by your medical provider. If, for any reason, this assessment is inaccurate, and you have additional information that could change TD Bank's understanding of your absence, please contact us immediately.[Ex. 54 (emphasis in original), see also Pl. Dep. at 238-42].
On December 28, 2017, Plaintiff called Midgette. Midgette notes regarding this conversation are as follows:
[Plaintiff] states that she is still working with Aetna to have current leave approved and she is still under doctor's care. [Plaintiff] advised that she has exhausted leave time and is welcome to return on or before 12/29. [Plaintiff] also states that she is upset that the letter went to her neighbor and the neighbor
signed off on the pkg. She asked “what you going to do about it?” She was concerned that her neighbor now has information about her employment status. [Plaintiff was] advised that she should take issue with the neighbor or UPS as [Defendant] sent the letter with signature required for that purpose. [Plaintiff] requested that the letter be emailed to her per she did not get to see it. (suspect, per she was aware of the letter coming to her neighbor and that it contained information regarding her employment status). [A copy of the letter was forwarded] by email.[Ex. 53 at 6, see also Pl. Dep. at 238-42]. Plaintiff, however, testified that during this call she did not recall telling Midgette that she was working with Aetna to have leave approved and, instead, recalled “telling [Midgette] about the return-to-work date, and I advised her to call Aetna.” [Pl. Dep. at 244].
Defendant began the process of terminating Plaintiff's employment on January 3, 2018. [Ex. 55 at 5]. Midgette testified that if Plaintiff had provided a return-to-work date, Defendant “would have noted it in the case and allowed her to return back to work on that date with really no further issues or communication until that date came.” [ECF No. 40-3 at 16]. Midgette further testified that had Plaintiff returned to work prior to January 3, 2018, Midgette would not have recommended her employment be terminated. Id. at 17-18.
Plaintiff appears to argue there is an inconsistency in the record regarding her termination date. [See ECF No. 44 at 3, ECF No. 44-1 at 18, 22]. Plaintiff highlights December 29, 2017, the effective date of her termination, but this does not contradict Midgette's testimony or the documentary evidence on this issue.
II. Discussion
A. Standard on Motion for Summary Judgment
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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. at 248. Further, while the federal court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case, see, e.g., Cruz v. Beto, 405 U.S. 319 (1972), the requirement of liberal construction does not mean that the court can ignore a clear failure in the pleadings to allege facts that set forth a federal claim, nor can the court assume the existence of a genuine issue of material fact when none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
B. Analysis
1. Race Discrimination and Retaliation Claims
In her amended complaint, Plaintiff alleges, in part, that she was discriminated against based on her race and that she was retaliated against when she complained of this discrimination to Defendant on November 18, 2016. [ECF No. 8 ¶¶ 14, 20, 42-52]. Plaintiff also testified that all acts complained of in support of these claims occurred prior to June 15, 2017, her last day of work. [ECF No. 40-1 at 55, 65]. However, Plaintiff did not file her charge with the Equal Employment Opportunity Commission (“EEOC”) and the South Carolina Human Affairs Commission (“SCHAC”) until October 2018. [ECF No. 8 ¶ 8, ECF No. 40-2 at 70-71].
Under Title VII, a claimant is required to file a charge of discrimination with the EEOC within 180 days of the alleged discriminatory act or acts, or, if the alleged discrimination occurred in a “deferral state,” then within 300 days of the alleged discriminatory act(s) if the claimant initially institutes proceedings with the appropriate state agency, or within thirty days of the state agency's termination of its proceedings, whichever is earlier. See 42 U.S.C. § 2000e-5(e). South Carolina is a deferral state, with the appropriate state agency being SCHAC.
Here, Plaintiff did not file her charge within the requisite time period and appears to concede as much, as she states her former counsel “advised me that the statute of limitations has ended for my complaint for race discrimination and retaliation” and does not otherwise address these claims in her response to summary judgment. [See ECF No. 44]. As such, it appears these claims are both untimely and that Plaintiff has abandoned them. See Coker v. Int'l Paper Co., C/A No. 2:08-1865-DCN, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (“[P]laintiff can abandon claims by failing to address them in response to a summary judgment motion.”).
Accordingly, the undersigned recommends dismissal of Plaintiff's claims based on violations of Title VII and for retaliation.
Given the recommendation above, it is unnecessary to address Defendant's additional argument that Plaintiff failed to exhaust her administrative a. Failure to Accommodate remedies, warranting dismissal of her retaliation claim because she “did not check the box for retaliation [in her charge], and the particulars/narrative of the charge do not in any way allude to a retaliation claim.” [Attachment AA at 29].
2. ADA Claims
a. Failure to Accommodate
The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees, . . . and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). This “includes . . . not making reasonable accommodations.” 42 U.S.C. § 12112(b)(5)(A). To establish a claim for a failure to accommodate, a plaintiff must show that (1) he suffers a disability; (2) his employer had notice of the disability; (3) with reasonable accommodations, he is otherwise qualified to perform the employment position in question; and (4) his employer refuses to make such reasonable accommodations. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013) (citations omitted).
The plaintiff bears both (1) the burden of identifying an accommodation that would allow a qualified individual to perform the job, and (2) the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable. Maffett v. City of Columbia, C/A No. 3:19-0832-MGL, 2021 WL 4237189, at *7 (D.S.C. Sept. 17, 2021) (citing Halperin v. Abacus Tech. Corp., 128 F.3d 191, 197 (4th Cir. 1997) (overruled on other grounds by Baird v. Rose, 192 F.3d 462 (4th Cir. 1999)). “A reasonable accommodation is one that is feasible or plausible.” Id. (citing Reyazuddin v. Montgomery Cnty., Md., 789 F.3d 407, 414 (4th Cir. 2015)).
Here, Plaintiff has failed to carry her burden. She argues she properly submitted the necessary documentation to remain on leave, emphasizing that Nickerson submitted a behavioral health clinician statement on October 27, 2017, that provided for a return-to-work date of January 1, 2018. [See ECF No. 44 at 2]. It appears Plaintiff argues that Defendant should have provided the reasonable accommodation of allowing her to remain on leave until January 1, 2018, instead of terminating her employment days prior to her return to work. See id.
Plaintiff is correct that Nickerson submitted a statement on October 27, 2017, but Plaintiff's argument does not consider nor address the documentation provided by her medical providers, including Nickerson, thereafter. As argued by Defendant:
Williams' leave clearly became indefinite in nature no later than mid-December 2017, when her healthcare providers-including the therapist who submitted the October 27 note-indicated they were unwilling to provide an estimated return date because Williams was not actively participating in treatment, her condition had deteriorated, and they believed she required intensive in-patient care before making meaningful improvement. This was the information available to TD in
December 2017 when it concluded Williams' leave had become indefinite.[ECF No. 45 at 1-2, see also Attachment AA at 21-26].
The record shows Nickerson, or other health care providers, informed Aetna and/or Defendant that Plaintiff would return to work on June 19, 2017, July 13, 2017, September 21, 2017, December 1, 2017, and January 1, 2018. However, on December 13, 2017, Nickerson spoke with Aetna and stated she did not want to make a return-to-work recommendation at that time due to Plaintiff's failure to participate in treatment. Thereafter, neither Plaintiff, who when asked referred Defendant to Aetna, nor any health care provider including Nickerson, was able to identity a specific return to work date. Instead, the information submitted to Aetna and Defendant was that Plaintiff's condition was worsening.
Plaintiff has failed to submit any evidence, except the October 27, 2017 note discussed above, indicating when she could have returned to work and performed the essential functions of her position or that any such period was communicated to Defendant. [See ECF No. 44]. Although Plaintiff has submitted other evidence, as argued by Defendant [see ECF No. 45 at 12-14], much of that evidence is inadmissible. See, e.g., Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”); see also Whittaker v. Morgan State Univ., 524 Fed.Appx. 58, 60 (4th Cir. 2013) (providing that information in an unsworn letter submitted in support of summary judgment is inadmissible hearsay); Orsi v. Kirkwood, 999 F.2d 86, 92 (4th Cir. 1993) (“It is well established that unsworn, unauthenticated documents cannot be considered on a motion for summary judgment.”) Additionally, even if the evidence submitted were admissible, nothing submitted by Plaintiff indicates when she could have returned to work and performed the essential functions of her position or that any date was communicated to Defendant.
The undersigned notes Plaintiff has submitted, in conjunction with the October 2017 note, a fax report indicating that on December 19, 2017, 24 pages were faxed to Aetna from the State of South Carolina Department of Mental Health. [See ECF No. 44-1 at 10]. Even if admissible, the import of this document is unclear, and there is no indication what documents were allegedly faxed on this date.
Plaintiff has failed to demonstrate that her suggested accommodation- to be allowed to remain on leave until January 1, 2018-was reasonable, where, here, the documentation submitted by her medical providers taken as a whole do not indicate a return-to-work date of January 1, 2018, nor indicate that Plaintiff was able to perform the essential functions of her position at that time. See Halpern v. Wake Forest Univ. Health Sci., 669 F.3d 454, 465 (4th Cir. 2012) (“[T]he Rehabilitation Act and ADA do not require an employer to give a disabled employee an indefinite period of time to correct a disabling condition that renders him unqualified.” (citations omitted)).
This court has recently addressed a somewhat factually-similar situation in reviewing the meaning a “qualified individual” under the ADA:
At the time of the Garlinger conversation, Plaintiff had already been on leave for six months and could not identify when she expected to be able to return to work. Furthermore, Plaintiff admitted that “[she] was still having a lot of symptoms at that time” and communicated her symptoms to Garlinger .... Nor did the conversation indicate that an extension of leave “at minimum until her already scheduled doctor's appointment” would enable Plaintiff to work through her ongoing symptoms and return to work after the appointment. The conversation with Garlinger, therefore, failed to evidence that an accommodation of brief, additional leave at the end of October 2019, would have permitted her to return to work and perform the essential functions of her position after the leave ended. See Lamb [v. Qualex, Inc., 33 Fed.Appx. 49, 57 (4th Cir. 2002)] (“A plaintiff may not prevail by demonstrating that he might have been able to perform the essential functions of the job at some time in the future. A plaintiff must show that he can perform the essential functions of the job at the time of the employment decision or in the immediate future.” (citing Myers v. Hose, 50 F.3d 278, 283 (4th Cir. 1995))).Young v. CSL Plasma, Inc., C/A No. 3:20-02720-SAL, 2022 WL 263327, at *3 (D.S.C. Jan. 28, 2022); see also Echevarria v. AstraZeneca Pharm. LP, 856 F.3d 119, 128 (1st Cir. 2017) (“‘The facts relevant to a determination of whether a medical leave is a reasonable accommodation are the facts available to the decision-maker at the time of the employment decision.'”) (citing Amadio v. Ford Motor Co., 238 F.3d 919, 928 (7th Cir. 2001)).
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA failure-to-accommodate claim.
b. ADA Discrimination
For similar reasons, the undersigned recommends dismissal of Plaintiff's ADA discrimination claim. To establish a claim of disability discrimination under the ADA, a plaintiff must prove that (1) he has a disability, (2) he is a “qualified individual” for the employment in question, and (3) [his employer] discharged him (or took other adverse employment action) because of his disability. Smith v. CSRA, 12 F.4th 396, 412 (4th Cir. 2021) (citations omitted); see also Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235-36 (4th Cir. 2016) (holding that the ADA requires that a plaintiff's disability be a but-for cause of the adverse employment action). The McDonnell Douglas burden-shifting framework applies to discrimination claims under the ADA. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015). Therefore, if a prima facie case of ADA discrimination is established, the burden shifts back to Defendant to produce evidence of a legitimate, nondiscriminatory reason for the alleged discrimination, and Plaintiff bears the burden of showing that reason is pretext.
Here, even if the court were to assume Plaintiff can make a prima facie showing, Defendant has submitted undisputed evidence that in December 2017, Defendant understood-based on documentation submitted by Plaintiff's medical providers as well as based on communications with Plaintiff herself-Plaintiff had exhausted all available leave options, was on unapproved leave, and would not or could not provide a specific return-to-work date. Although Plaintiff argues that she directed Midgette to consult paperwork submitted to Aetna [see ECF No. 44 at 2], that paperwork, as discussed above, shows that although Nickerson had, at one point, provided for a return-to-work date of January 1, 2018, thereafter, the paperwork provided for no return-to-work date. Plaintiff has failed to offer any evidence that Defendant terminated her employment or otherwise discriminated against her based on her disability or that Defendant's offered reason for her termination was pretext for disability-based discrimination.
Accordingly, the undersigned recommends the district judge grant Defendant's motion for summary judgment as to Plaintiff's ADA-based claims.
Given the recommendation above, it is unnecessary to address the parties' arguments concerning evidence submitted by Defendant as to what occurred after Plaintiff's termination. [See Attachment AA at 15-18 (Defendant's argument that “communications, information, and actions from Williams and her cousin [after Plaintiff's separation from employment] confirmed the indefinite nature of Williams' leave from TD”), ECF No. 44 at 3-4 (Plaintiff's objections to this evidence)].
3. Motions to Seal
Local Civ. Rule 5.03 (D.S.C.) provides that a party seeking to file documents under seal shall “file and serve a ‘Motion to Seal' accompanied by a memorandum” that must:
(1) identify, with specificity, the documents or portions thereof for which sealing is requested; (2) state the reasons why sealing is necessary; (3) explain (for each document or group of documents) why less drastic alternatives to sealing will not afford adequate protection; and (4) address the factors governing sealing of documents reflected in controlling case law.
The public's common law right to inspect judicial records and documents is not absolute and the district court may, in its discretion, seal documents if the public's right of access is outweighed by competing interests. Nxon v. Warner Communications, Inc., 435 U.S. 589, 597-98 (1978). In deciding whether to exercise such discretion, the court may consider “whether the records are sought for improper purposes, such as promoting public scandals or unfairly gaining a business advantage; whether release would enhance the public's understanding of an important historical event; and whether the public has already had access to the information contained in the records.” In re Knight Pub. Co., 743 F.2d 231, 235 (4th Cir. 1984) (“In re Knight factors”).
By contrast, once documents that are produced in discovery are “made part of a dispositive motion, they [have] lost their status as being ‘raw fruits of discovery.'” Va. Dep't of State Police v. Wash. Post, 386 F.3d 567, 576 (4th Cir. 2004) (citation omitted). The “more rigorous First Amendment standard [applies] to documents filed in connection with a summary judgment motion in a civil case.” Id. (citation omitted); see also Hill Holiday Connors Cosmopulos, Inc. v. Greenfield, C/A No. 6:08-03980-GRA, 2010 WL 890067, at *4 (D.S.C. Mar. 8, 2010) (denying motion to seal summary judgment memorandum and exhibits).
Under this First Amendment standard, the movant must demonstrate that the denial of access is necessitated by a compelling government interest or non-governmental interest that implicates similar “higher values.” PressEnter. Co. v. Super Ct. of Cal. For the Cnty. of Riverside, 464 U.S. 501, 510 (1984). “The burden to overcome a First Amendment right of access rests on the party seeking to restrict access, and that party must present specific reasons in support of its position.” Va. Dep't of State Police, 386 F.3d at 575. The court must determine that sealing would constitute a “narrowly tailored” solution designed “to serve that interest.” Press-Enter. Co., 464 U.S. at 510.
Both parties have filed motions to seal in this case. [See ECF Nos. 39, 43]. Consistent with its motion, Defendant has not placed on the public docket the entirety of its motion for summary judgment and certain experts from Plaintiff's deposition, as well as exhibits to her deposition that, as stated by Defendant, “describe in detail Plaintiff's medical records, treatment records, and diagnoses that are relevant to this case.” [ECF No. 39 at 1]. In support, Defendant argues that sealing these documents “is appropriate under the Court's Local Civil Rules, the Court's Electronic Case Filing Policies and Procedures [13.4.3], and applicable case law, as ‘the public's right of access is outweighed by competing interests,'” in that:
This court's electronic case filing policies and procedures 13.4.3 provides that “medical records, treatment records, or diagnoses . . . must be afforded maximum protection from public dissemination” and “[a] document containing this information shall be filed electronically in a redacted version with all the protected information removed or be presented for ‘in camera review with a motion to seal.” (emphasis in original).
(a) any public access to these records would be for improper purposes, as there is no legitimate or proper purpose to access a private party's medical records, treatment records, and diagnoses, (b) release of these records would not in any way enhance the public's understanding of an important historical event, and (c) the public does not have access to the information contained in these records, because the records are private, sensitive, and confidential.Id. at 2-3 (citing In re Knight, 743 F.2d at 235). The parties' motions to seal have been on the public docket for weeks and the public has had notice of the motions and a reasonable opportunity to challenge the requests. See Va. Dep't of State Police, 386 F.3d at 576.
The undersigned undertook an in camera review of the documents that Defendant seeks to seal and notes Plaintiff's date of birth as well as certain other sensitive information has been redacted, although Plaintiff's medical records, including treatment records and diagnoses, and discussion of the same, constitute extensive portions of the documents at issue. The undersigned also notes Defendant's efforts to narrowly-tailor its request to seal documents concerning Plaintiff's medical records where Defendant has filed separately on the public docket evidence unrelated to Plaintiff's medical records.
Notwithstanding, Defendant's motion to seal these documents is denied. While there is an important governmental interest in keeping sensitive and personal medical information private, see, e.g., Fulp v. Columbiana Hi Tech, LLC, C/A No. 16-1169, 2018 WL 1027159, at *10 (M.D. N.C. Feb. 21, 2018), these records are at the heart of Plaintiff's claims and to the public's understanding of the court's recommendation on Defendant's motion for summary judgment. The documents at issue contain “dates of treatment and diagnoses that are relevant to the Court's summary judgment decision, and it is difficult to justify keeping secret the nature of a claimed disability in a case involving alleged disability discrimination.” Bryson v. CompuCom Sys., Inc, C/A No. 1:19-1121, 2021 WL 2451640, at *4 (M.D. N.C. June 11, 2021) (citing Equal Emp. Opportunity Comm'n v. Loflin Fabrication LLC, C/A No. 1:18-CV-813, 2020 WL 3845020, at *2 (M.D. N.C. July 8, 2020)). Additionally, Defendant has failed to meet the high standard required for sealing and has failed to rebut the presumption in favor of public access, having offered no specific reason, much less a compelling reason, to seal the documents and instead stating only, without elaboration, a conclusion that does not meet the In re Knight factors. Finally, as implied by Plaintiff, it appears some or all of the medical records at issue have been a matter of public record for “years.” [See ECF No. 43].
Here, unlike in Bryson, the parties have not identified, nor can the court discern, any submitted medical records “irrelevant to the present dispute.” 2021 WL 2451640, at *4 (granting in part and denying in part motion to seal).
As to Plaintiff's motion, she has filed the documents she seeks to seal on the public docket, but also requests these documents be placed under seal. [ECF No. 43]. Plaintiff does not, however, offer any reason why these documents should be sealed. Additionally, a review of the documents indicates that the only documents containing medical information concerning Plaintiff have also been submitted by Defendant and addressed above. However, unlike the documents submitted by Defendant, Plaintiff has not redacted certain of her sensitive information, including her date of birth and social security number. [See ECF No. 44-1 at 7, 40]. Accordingly, Plaintiff's motion to seal is denied; however, the clerk of the court is directed to redact Plaintiff's birth date and social security number from the pages identified.
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned denies the parties' motions to seal [ECF Nos. 39, 43] and recommends the district judge grant Defendant's motion for summary judgment. [ECF No. 40]. Defendant is directed to file on the public docket its motion for summary judgment and other documents that are the subject of ECF No. 39. The clerk of court is directed to redact Plaintiff's birth date and social security number from Plaintiff's filing at ECF No. 44-1 at 7, 40.
IT IS SO ORDERED AND RECOMMENDED.