Opinion
C. A. 2:20-cv-04211-RMG-MHC
07-29-2022
Lissa Bauwin, Plaintiff, v. SDH Services East LLC, d/b/a Sodexo, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff brings this disability discrimination action against her former employer SDH Services East LLC (hereinafter “Sodexo” or “Defendant”). ECF No. 1-1.
Before the Court is Plaintiff's Partial Motion for Summary Judgment (“Plaintiff's Motion”), filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. ECF No. 21. Defendant filed a Response, ECF No. 23, and Plaintiff filed a Reply, ECF No. 24.
Also before the Court is Defendant's Motion for Summary Judgment (“Defendant's Motion”). ECF No. 32. Plaintiff filed a Response, ECF No. 38, and Defendant filed a Reply, ECF No. 39. Both Motions are ripe for review.
All pretrial proceedings in this case were referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(g), D.S.C. This Report and Recommendation is entered for review by the District Judge. For the reasons set forth below, the undersigned recommends that Plaintiff's Motion be granted, in part, and denied, in part. The undersigned further recommends that Defendant's Motion be granted, in part, and denied, in part.
The facts as set forth are either undisputed or viewed in the light most favorable to the nonmoving party. See Wirtes v. City of Newport News, 996 F.3d 234, 238 (4th Cir. 2021) (“[A] court should grant summary judgment only if, taking the facts in the best light for the nonmoving party, no material facts are disputed and the moving party is entitled to judgment as a matter of law.”) (citation and internal quotation marks omitted).
Plaintiff's employment with Sodexo began in 2003, and from the beginning of her employment, she served in management roles, starting out as a General Manager 4, Food, in a hospital. ECF No. 32-2, Pl. Dep. 17:14-18:15. Over the next several years, she managed the food service operations at several of Sodexo's hospital accounts and accepted her first role as General Manager 5, Food, in 2007. Id. at 18:16-22:6.
I. Plaintiff is Hired as the General Manager 5 of Patient Services
In 2017, through an email notification, Plaintiff learned that Sodexo had posted a job opportunity for a new position called General Manager 5 of Patient Services (“GM5-PS”) in Charleston, South Carolina at the Medical University of South Carolina (“MUSC”) - “a 35 year client for Sodexo.” Id. at 22:7-25:8; ECF No. 32-2 at 167-68; see also ECF No. 32-5, Ellenburg 30(b)(6) Dep. 205:15-206:16 (“This was a unique posting because it was specifically over patient services .... this is why it is not just posted as a GM 5 and why patient services is bolded, because it is not your typical General Manager 5. It's a General Manager 5 over Patient Services.”).
The job posting stated, in relevant part:
As the General Manager 5, you will provide oversite to the hospital's Diet Office personnel to ensure that all nutrition/food regulatory requirements are being achieved in operations. [You] will be the conduit between patient tray line and clinical components of compliance.
Job Responsibilities include:
• Implement performance improvement and quality assurance programs targeted to improve nutrition services and patient satisfaction.
• Interact with patients and be the primary liaison for the clinical (physicians, nursing, and pharmacy) and food service teams.
• Ensures compliance to Sodexo operating policies and procedures and works to maintain those standards.
• Accountable for the execution of service quality and ensures patient and client satisfaction.
• Regularly attend system Nutrition steering meetings
• Host monthly diet education classes with nutrition Assistants
• Be the onside expert for the patient ordering system (Healthtouch)ECF No. 32-2 at 167 (emphasis in original). The job posting provided the following “Position Summary”:
Directs all contract management service operations at a single account/unit. Plans and supervises special functions. Maintains cash control and payroll records. Hires and trains unit personnel. Maintains customer satisfaction and good public relations. Manages through managers and is accountable for the contract. Senior-most person assigned to a one client account.Id.
Plaintiff applied for the new position. ECF No. 32-2, Pl. Dep. 24:9-15. She accepted the GM5-PS role on June 29, 2017. ECF No. 32-2 at 173; id. Pl. Dep. 25:21-26:3, 28:15-20 (testifying that the title of her last position with Sodexo was “General Manager, Food Service Patient Services”). That same day, Plaintiff signed a job description for a General Manager 5, Food role. ECF No. 32-2 at 175-78; id. Pl. Dep. 26:4-12; see ECF No. 32-5, Ellenburg 30(b)(6) Dep. 68:812 (“It was posted as a GM 5 Patient Service[s], which was [a] very specific job, not one that had its own job description. It was kind of a unique hybrid role.”), 156:20-22 (testifying that Sodexo has generic job descriptions that are broadly written). That job description provided the following duties, among others:
• Executes strategic plan by implementing short and long-term goals that align with the scope of service, mission and values.
• Manages by proving positive and constructive feedback to employees in order to reward, coach, correct and motivate.
• Prepares and updates statistical reports . . . .
• Supervises day-to-day work activities by delegating authority, assigning and prioritizing activities, and monitoring operating standards.
• Establishes a safe work environment for employees by performing safety audits and inspections, conducting safety-related training, and maintaining ongoing communications with employees.
• Creates and manages the budget by increasing revenue and controlling unit expenditures to ensure accuracy of operating and administrative budget.
• Reviews financial statements to ensure performance is in accordance with business strategic initiatives.
• Directs daily food service operations including: menu evaluation and planning, purchasing, inventory, receiving, food preparation and storage.
• Maintains kitchen and storage facilities to meet/exceed sanitary conditions; monitors internal quality assurance and food safety audit process (including HACCP record keeping).ECF No. 32-2 at 176. The job description further provides the following information regarding supervisory duties and working conditions:
Supervision Provided: Has direct responsibility of client contract and manages activities of unit(s) through lower level subordinate managers or exempt employees who exercise significant latitude and independence in their assignments. Has full Human Resource responsibility.... Functions as an advisor to a unit regarding tasks, projects, and operations. Becomes actively involved in daily operations only when required to meet schedules or to resolve complex problems. Develops and administers budgets, schedules, and performance....
Physical Demands: Typical physical demands are required to perform the work, such as some walking, standing, bending or carrying of light items.Id. at 178.
Plaintiff's first day of work was July 22, 2017. ECF No. 32-2, Pl. Dep. 25:1-3. She reported to the Resident District Manager, Nikki Pappas, who was hired in August 2017. Id. at 27:4-28:10.
In the GM5-PS role, Plaintiff “managed and directed food service operations at MUSC,” ECF No. 32-2 at 221, which spanned across three different buildings - main campus (“Main”), Institute of Psychiatry (“IOP”), and Ashley River Tower (“ART”). ECF No. 32-2, Pl. Dep. 31:633:18, 67:8-69:19, 78:1-11; ECF No. 32-2 at 229. In terms of the volume of food - the number of trays that needed to be prepared daily per site - Main prepared an average of 1,200 trays, IOP prepared at least 300, and ART prepared an average of 360 trays. ECF No. 32-2, Pl. Dep. 74:777:25.
Sodexo employed three Patient Service Managers (“PSMs”) - two at Main and one at ART - all of whom reported directly to Plaintiff. ECF No. 32-2, Pl. Dep. 88:15-90:13. PSMs are at least five levels below a GM-5 in Sodexo's hierarchy. ECF No. 38-9, Pappas Dep. 12:5-15. Plaintiff also supervised hourly supervisors and food service workers, totaling approximately 80 to 100 people at any given time, and her supervisory duties comprised 75% of her day. ECF No. 32-2, Pl. Dep. at 28:15-29:8, 101:10-23, 325:7-13.
In her Performance Review for Fiscal Year 2018, Plaintiff described her position as follows:
As GM of Patient Services, my focus was developing a strong rapport with Nursing Leadership. I have presented at 2 Nurse Leadership forums - topics included Nursing telephone line statistics, overall timeliness of tray delivery, etc. Attended all Safety Rounds, Night Lights rounding in Women & Children's....
I accepted the position as GM of Patient Services in 2017/2018 as Patient Care is my passion. We have made a lot of progress in improving services by improving timeliness of delivery, which in theory, would increase patient satisfaction scores. Our timeliness scores, with a few exceptions, continued to improve. Our Press Ganey Overall Meal Scores also improved.
The role of GM of Patient Services was a paradigm change. Purchasing, retail production, retail services, catering, etc. were no longer my responsibility. I do need to emphasize that I supported all programs that were initiated in these areas and always supported the needs of the managers and the operation.ECF No. 32-2 at 196, 209. Plaintiff similarly testified that she has “always attended” safety rounds. ECF No. 32-2, Pl. Dep. 224:11-22. According to Plaintiff, safety rounds did not involve walking through the building looking for safety issues but instead required her to attend a meeting with the nurses and Support Services to discuss anything that may affect patient care. ECF No. 38-1, Pl. 2d Decl. ¶ 12.
Plaintiff conducted Nurse Rounds on a quarterly basis with nurse managers, which involved meeting with nurse managers-either in person or over the phone-to discuss what was going well and what needed improvement. Id. ¶ 10. She also conducted Patient Rounds, also known as “rounding on the floor.” Id. ¶ 11. Patient Rounds involved going onto the patient floors to check in with nurses and make sure they are not having any issue with food service. Id.
On her resume, Plaintiff describes her position of “General Manager, Food Service Patient Services” as follows: “Managed all aspects of patient services - 75 FTEs, Room Service Tray Assembly, Tray Delivery and Call Center. Improved patient delivery processes and decreased need for nursing support. Developed initial patient services plans for staffing for children's hospital kitchen.” Id. at 180. At her deposition, Plaintiff testified that in her position, she went on all the safety rounds and routinely met with nursing services, the clinical staff, physicians, and registered dieticians. ECF No. 32-2, Pl. Dep. 35:8-14, 40:11-16, 55:15-24, 226:4-10. She also worked with the executive chef to ensure the quality of the food, physically went to the IOP a couple times a week to check in with food service employees there, checked in on call center employees whose office was near hers, checked in daily with food service employees building trays, and daily checked inventory. Id. at 42:9-12, 91:8-12, 94:8-17, 111:9-14, 112:4-113:8, 116:2-8.
Plaintiff's primary means of monitoring the tray line was through the “At Your Request” computer application. ECF No. 38-1, Pl. 2d Decl. ¶ 13. The tray line was outside her office door, and she would visually monitor the tray line every time she walked out the office door and, at times, would stand at the tray line and observe for a short time. Id. She would check in with staff, inspect the quality of the food, make sure everyone had what they needed, and make sure tray delivery was meeting the required timeframes. Id.
Pappas described Plaintiff's role as “a very high-level general manager, specifically focused upon patient satisfaction and services” and charged with “data-driven leadership.” ECF No. 38-9 at Pappas Dep. 9:9-22, 19:4-20:21. She testified that MUSC is a large, complex organization, and Plaintiff used Sodexo's proprietary computer software to monitor the department. Id. Pappas testified that Plaintiff's position did not require extensive walking or standing, explaining that Plaintiff was a “general manager of a large piece of business, not a food service worker” and that “[w]e pay people six figures to use their brains and build relationships.” Id. at 28:15-29:10. Pappas testified that it was a “rare occurrence” for the General Manager 5 to do any rounding-meaning “visiting with patients at key times”-or to monitor the tray line where meals are assembled. Id. at 20:21-22:1. According to Pappas, these duties were carried out by front-line hourly supervisors, lead, patient services managers, and patient ambassadors. Id.
II. Plaintiff's Surgery, FMLA Leave, and Short-Term Disability
Plaintiff took a leave of absence pursuant to the Family Medical Leave Act for a planned surgical procedure on July 31, 2018, specifically a left total hip replacement. ECF No. 32-2, Pl. Dep. 124:1-125:7.
For about six months leading up to the surgery, Plaintiff struggled with pain at work. ECF No. 38-9, Pappas Dep. 22:8-24. Pappas testified that during that time, Plaintiff was visibly in pain when she walked and had difficulty with prolonged standing, but she was able to “move back and forth between employee[] meetings, our offices, our group meetings.” Id. at 23:2-24:1. Pappas further testified that notwithstanding the hip condition, Plaintiff was able to fulfill the duties of her position and was meeting Sodexo's expectations for job performance. Id. Plaintiff's physician did not give her any work restrictions prior to her surgery. ECF No. 38-10, Rudolph Dep. 13:2-7.
While on leave, Plaintiff applied for, and received, short-term disability benefits. ECF No. 32-2, Pl. Dep. 140:1-6, 142:13-15. Plaintiff exhausted her leave under the FMLA on October 22, 2018. Id. at 141:25-142:5.
III. Plaintiff's Post-Surgery Complications and Her Return to Work in a Light Duty Role
After Plaintiff's surgery, she suffered a complication known as “drop foot,” which meant she awoke with a complete sciatic nerve palsy. ECF No. 32-3 at 2. Expected consequences of drop foot include poor mobility and elevated risk of fall. ECF No. 33-1, Rudolph Dep. 61:15-17, 67:412; ECF No. 32-2, Pl. Dep. 135:19-136:10.
Plaintiff provided Sodexo with return-to-work recommendations completed by her doctor and dated November 1, 2018, with the following information: return to modified duty on 11/02/18, no more than 4 hours per day and 20 hours per week; no standing more than 30 minutes at a time; must use walker or cane and wear brace; follow up appointment on 11/29/18. ECF No. 32-3 at 10.
On November 7, 2018, Joe Greely-the interim Resident District Manager following Pappas's resignation in August 2018 (while Plaintiff was on medical leave)-sent Plaintiff an email stating, “[Y]ou have been cleared to return to work with a walker and only 4 hours per day. We further discussed that it wouldn't be safe for you to be in the kitchen on a walker and that you'd be willing to do other administrative duties as assigned until you are able to work full time again.” ECF No. 32-3 at 39; ECF No. 32-2, Pl. Dep. 55:7-11, 152:6-16. Plaintiff returned to work in this light duty capacity on Friday, November 9, 2018. Id.
The parties dispute whether Pappas resigned, as she testified, ECF No. 38-9 at 47:14-19, or whether she was removed, as the 30(b)(6) witness testified, ECF No. 32-5, Ellenburg 30(b)(6) Dep. 222:2-10. However, it is undisputed that she left Sodexo while Plaintiff was out on medical leave. ECF No. 32-2, Pl. Dep. 53:21-54:14.
Sodexo assigned Plaintiff temporary light duty and administrative work and had her work out of the retail office because, in contrast to her current office, it was located outside of Main's kitchen area and, thus, was away from kitchen hazards. Id.; ECF No. 32-2, Pl. Dep. 166:5-8, 171:10-12, 185:25-186:7 (confirming she knew her light-duty work was not the performance of her GM5-PS job). Plaintiff continued to perform light duty work in the retail office through the end of the year.
IV. Patient Services Declined During Plaintiff's Medical Leave and Light Duty
While Plaintiff was out on leave, the patient services ratings decreased. See ECF No. 32-4 at 64, line 239. A Unit Visitation report dated December 5, 2018, noted concerns regarding the timeliness of tray delivery and pick up, the supervisor's failure to actively manage the tray line, and the management team not making sound decisions regarding the patient dining program. ECF No. 32-3 at 91-94.
In mid-December 2018, the new, permanent Resident District Manager, Tom Neuman, began working at MUSC. Plaintiff and her fellow managers received a critical email sent “high” importance from Neuman on December 19, 2018. ECF No. 32-3 at 96; 32-2, Pl. Dep. 198:21-18, 200:3-203:2. The subject line of the email was “Operations 90-10 Directive” and it stated:
Team,
The rule for operations is that all managers should spend 90% of their time during meal hours on the floor. This pertains to both Patient and Retail.
We need to quickly move our Patient Metrics and customer satisfaction, employee engagement and Financial results, to do so requires front line management to be out with the staff, patients and customers.ECF No. 32-3 at 96. In a text message to Pappas on December 26, 2018, Plaintiff stated: “Going back full time on January 2nd with walking restrictions. I've been told to straighten out Patient Services. New Guy just started.” ECF No. 32-4 at 65, line 267.
V. Plaintiff Starts Working Full-Time in January 2019
On January 1, 2019, Plaintiff's doctor released her to work 40 hours per week with the same restrictions, at which point she decided to move back into her old office and started to manage and direct the Patient Services operations. ECF No. 32-2, Pl. Dep. 211:12-212:5, 241:2-243:13.
Plaintiff testified that she recalled Neuman's boss, Jeff Berdis, came in and had a meeting with everybody where he “[t]hreatened everybody with their jobs and told them that if they didn't get green a hundred percent [with regard to tray delivery times] they were all going to be fired.” ECF No. 32-2, Pl. Dep. 219:7-11; 217:4-6.
At the end of January 2019, Neuman and Greely met with Plaintiff to talk about the department's expectations and outcomes. ECF Nos. 32-3 at 98-120; ECF No. 33-4, Neuman Dep. 34:2-9; 40:20-25. Regarding that meeting, Plaintiff testified:
I was threatened with my job on numerous occasions during that conversation. And I was - and a lot of it had to do with physical - their - their interpretation of physical requirements. Rounding is important, but there's other ways to manage a high-achieving department without the sole focus being on doing physical rounding when you have Patient Service managers, ambassadors, et cetera. So I don't know what else you want me to say about this meeting. It was quite negative.ECF No. 32-2, Pl. Dep. 231:10-21. She testified she felt threatened because they harped on rounding and expressed an expectation that she be on her feet all the time and that she walk the floors. Id. at 233:4-24, 238:2-5. They asked if she could be on her feet 50 percent of the time, to which she responded yes, but she would need to have those periods broken into smaller segments, as opposed to four hours of continuous walking. Id. at 234:10-23. She told them that she would not be able to walk the whole entire building without taking a break. Id. at 234:10-238:5. Neuman testified that at no point during that conversation did he talk to Plaintiff about accommodations, nor did Plaintiff request any. ECF No. 33-4, Neuman Dep. 44:8-21.
After the meeting, Plaintiff complained to human resources, via the PeopleCenter, that she felt pressured by her managers to take disability and “that her disability accommodations are not being properly taken into consideration by her management team.” ECF No. 32-3 at 12. She “explained that she has to use a walker currently and has been released back to work,” and she “feels that effort is not being made to provide an appropriate accommodation for her.” Id. She also stated that she feels as if she is being forced out due to disability. Id.; see also ECF No. 32-2, Pl. Dep. 246:1-247:5 (testifying that the case summary is an accurate and fair recap of her complaint).
The case was assigned to Cynthia Talley-Rolle, a Senior Manager, Employee Relations. ECF No. 32-2, Pl. Dep. 256:16-19; ECF No. 32-5, Ellenburg 30(b)(6) Dep. 83:1-5. Talley-Rolle called Plaintiff, and they spoke on January 30, 2019. ECF No. 32-2, Pl. Dep. 250:3- 11, 253:13254:3. Talley-Rolle completed an ADA Accommodations Request Interactive Communications Worksheet during their call. ECF No. 33-6, Talley-Rolle Dep. 12:14-18, 20:9-21:25; ECF No. 32-3 at 122-24. At the time of the call, Plaintiff was under the impression that they were only discussing her discrimination complaint and did not realize that Talley-Rolle was completing an Accommodations Request Interactive Communications Worksheet. ECF No. 21-3, Pl. Decl. ¶ 29.
According to the Worksheet, Plaintiff told Talley-Rolle that she could only do the paperwork pieces of her job; she had limited mobility; her foot was very unstable; and she had no suggestions for a reasonable accommodation that might assist her in performing the essential job duties of the GM5-PS job. ECF No. 32-3 at 122-24. When asked how she accommodates the impact of her limitations outside the workplace, she said, “I use a walker and a cane at home. I'm lazy so I don't move the walker around. I use the electric wheelchair at stores.” Id. Talley-Rolle testified that Plaintiff never said that she believed she could perform her essential job duties safely and effectively in the kitchen with use of a walker, cane, or an electric wheelchair. ECF No. 33-6, Talley-Rolle Dep. 19:16-20:4, 22:4-23:21, 24:6-17.
When asked about this call, Plaintiff testified that she recalled Talley-Rolle asking “general questions.” ECF No. 32-2, Pl. Dep. 252:6-15. She also recalled being told about and receiving a form for her doctor to fill out and being told not to report to work until the documentation was submitted. Id. at 252:20-254:13. Plaintiff also confirmed she was aware Talley-Rolle was looking into her ability to perform her GM5-PS job with her restrictions. Id. at 254:17-256:2.
After this phone call, Talley-Rolle sent Plaintiff an email with the Medical Inquiry Form to be filled out by a physician. ECF No. 33-7 at 3. Talley-Rolle told Plaintiff:
I'll be reaching out to Thomas [Neuman] and Ken [Berg] to ensure the Essential Functions are clearly added to the ‘working conditions' of this job description. As we discussed, there are physical functions of the GM job role that you are unable to do at this time. Your doctor will be able to advise us of what you can and cannot do - with or without accommodations.
Thomas [copied on the email], please send me a copy of what is added to this job description for this unit. Lissa will also need this information for her physician.
These conditions/requirements would be expected of anyone in the role.Id.
Neuman responded to Talley-Rolle's email-without copying Plaintiff-as follows: “I have highlighted the GM5 duties [on the attached job description] that, in my opinion, Lissa is unable to accomplish. Lissa functions as the Patient Services GM, in that role the additional duties (excerpts from Patient Services Manager Job Profile) below are also necessary and currently unable to accomplish.” Id. at 2. Among the additional duties from the PSM position that he listed in his email were the following “Physical Demands”: “Specific physical characteristics and abilities are required to perform the work, such as above-average agility and dexterity, and long periods of walking, standing, bending or carrying moderately heavy items.” Id. at 3.
On February 7, 2019, Plaintiff provided Sodexo with the Accommodation Request Medical Inquiry Form completed by her doctor. ECF No. 32-4 at 2-5; ECF No. 32-2, Pl. Dep. 267:19 268:5. It stated in relevant part:
• Long-term impairment - 12 months
• Substantially limits walking, standing, and lifting
• Trouble standing, less than 30 minutes, and walking, less than 15 minutes
• “Can't maneuver well in kitchen c/o poor function of L[eft] leg. Risk of fall.”
• Suggested possible accommodations listed: “walking aids vs electric wheelchair”
• Additional comments: “continue current job specs instead of [unclear] current station.”(Pl. Dep. Ex. 32.)
Talley-Rolle sought clarification from Plaintiff regarding the last sentence on the Form and provided Plaintiff with an update on the status of her accommodation review:
Hi Lissa,
What does the doctor say on the last sentence? I can't read the writing. I'm reviewing wat [sic] you sent.... I hope to respond with what accommodations will be offered by the end of the day. As I shared with you, [i]f the essential functions of the job cannot be met, a Leave of Absence may be offered. In our conversation, you stated to me that there are limitations to your ability to work in a kitchen at this point and this is an essential function of your position.ECF No. 32-3 at 59-60.
Plaintiff responded stating that her doctor verbally told her to “continue in [her] current role and not add the additional duties.” Id. at 59. Talley-Rolle responded, “The job specifications did not change.” Id.
VI. Plaintiff's Requested Accommodation Denied: Plaintiff is Placed on an Unpaid Leave of Absence, and She Applies for Disability Benefits
On February 11, 2019, Defendant informed Plaintiff it was denying her requested accommodation:
As we discussed today, please be advised that Sodexo has concluded its consideration of your request for accommodation.... After an interactive discussion with you, a review of the medical information provided, and an analysis of possible accommodations, it has been determined that Sodexo is unable to grant your request for an accommodation in the unit at this time based on the requirements of the essential functions of your Patient Service General Manager position; however, where your condition improves, we are willing to address your potential return to work. We will need to post your position at this time.
Employee Relations Service will work with you and your manager to accommodate you by placing you on a Leave of Absence.ECF No. 32-4 at 7; see also ECF No. 32-2, Pl. Dep. 275:6-276:10; 277:9-278:3 (“So they denied - so, then, my - so my ability to use a walker was denied.”); ECF No. 32-3 at 20. Plaintiff's leave of absence began on February 11, 2019, and was to expire on May 6, 2019. ECF No. 33-8 at 2-3.
Sodexo extended Plaintiff's leave of absence twice, with the last extension approved through October 31, 2019. ECF No. 32-2, Pl. Dep. 282:13-17; ECF No. 33-8.
From February through August 2019, Plaintiff received short-term disability benefits. ECF No. 32-2, Pl. Dep. 298:1-4; ECF No. 33-11. On August 21, 2019, Plaintiff applied for long-term disability benefits. ECF No. 32-4 at 21-27; ECF No. Pl. Dep. 299:10-12. Cigna determined she was disabled, and she started receiving long-term disability benefits in September 2019. ECF No. 32-2, Pl. Dep. 313:25-314:10; ECF No. 33-12 at 3-5.
Plaintiff applied for Social Security disability insurance benefits on September 24, 2019. ECF No. 32-4 at 35. In her Disability Report, Plaintiff stated that she walked for three hours, stood for two hours, and sat for three hours each day in her GM5-PS position. Id. at 44. Based on her medical records and the statements made in her application, the SSA determined she was disabled, and she started receiving benefits in February 2020. Id. at 39; ECF No. 32-2, Pl. Dep. 327:23328:1; ECF No. 33-12 at 3-5.
VII. Plaintiff's Position is Eliminated
In 2019, Sodexo and MUSC were involved in a contract negotiation. ECF No. 33-5, Neuman 30(b)(6) Dep. 8:4-18. Around January 18, 2019, Sodexo provided its initial proposal to MUSC. Id. at 14:6-20. The initial proposal included all of the job positions that Sodexo currently had, in addition to proposed new positions. Id. After MUSC told Sodexo that the proposal was too expensive, the parties negotiated over the course of eleven months, ultimately eliminating four management positions: the GM5-PS position, the senior culinary director position, a retail manager position, and a production manager position. Id. at 17:5-19:1. Plaintiff's GM5-PS position was eliminated from the proposal in March or April 2019. Id. at 19:15-21. The final agreement was fully executed around November 19, 2019. Id. at 19:9-12.
Before the contract negotiation process began, Sodexo began looking for a GM6 position in November 2018. Id. at 20:8-11. That position had ultimate responsibility for the entire operation. Id. 21:23-24. The GM6 position ended up subsuming Plaintiff's managerial duties. ECF No. 33-3, Love-Hubbard Dep. 15:8-16.
VIII. Plaintiff is Terminated
On October 14, 2019, Sodexo sent Plaintiff an LOA Letter informing her that her leave of absence would expire on November 1, 2019. ECF No. 38-19. The letter further provided:
If the leave was for your own serious health condition, in order to be restored to employment on your expected return to work date, you must provide the enclosed Return-to-Work Medical Certification Form. Your return to work will be delayed until such certification is provided. The Return-to-Work Medical Certification Form must address your ability to perform your job functions at full duty.
If you are unable to return to work full duty by November 1, 2019, we will move forward with separation of employment.Id. Plaintiff emailed Minnie Cooper-the sender of the letter-to ask for clarification: “Minnie: The letter you have sent via email communicates that I must return to work ‘full duty' on November 1, 2019. Can you please define ‘full duty'?” ECF No. 21-8 at 1. Cooper responded, “Full duty would mean being released back to work with no restrictions.” Id. at 2.
Plaintiff submitted a return-to-work form, completed by Dr. Rudolph, which stated that Plaintiff could return to work with the following restrictions: “must use cane and wear brace and no standing more than 5 min @ time.” ECF No. 32-4 at 11. Sodexo terminated Plaintiff's employment on November 12, 2019. ECF No. 32-4 at 16-18.
LEGAL STANDARD
Summary judgment should be granted when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Facts are ‘material' when they might affect the outcome of the case, and a ‘genuine issue' exists when the evidence would allow a reasonable jury to return a verdict for the nonmoving party.” The News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In ruling on a motion for summary judgment, “the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor.” See Id. (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). However, “the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). When a party fails to establish the existence of an element essential to that party's case, there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) (“[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate.”).
DISCUSSION
I. Plaintiff's Motion
In her Partial Motion for Summary Judgment, Plaintiff moves for judgment in her favor on the following two issues: (A) whether Plaintiff was an individual with a disability under the ADA; and (B) whether Plaintiff requested ADA accommodation triggering Defendant's duty to engage in the ADA good-faith interactive process. ECF No. 21 at 15. In its Response, Defendant “concedes that Plaintiff is an individual with a disability as that term is defined under the ADA.” ECF No. 23 at 3. “Defendant also concedes that Plaintiff requested an ADA accommodation and that Defendant had a duty to engage in the ADA interactive process with Plaintiff.” Id. Accordingly, the undersigned recommends that Plaintiff's motion for summary judgment be granted as to these two “issues.”
Plaintiff further seeks summary judgment in her favor on the following affirmative defenses purportedly raised by Defendant: (1) direct threat; (2) undue burden; (3) whether Plaintiff's claim exceeds the scope or is inconsistent with her EEOC charge; (4) whether Plaintiff is barred from pursuing punitive damages; and (5) whether Plaintiff's damages, if any, may be reduced or offset by virtue of any recovery she has obtained or may obtain from any other source as a result of unemployment benefits, disability benefits, or other employment. ECF No. 21 at 15.
In its Response, Defendant argues that it never asserted either the Direct Threat defense or the Undue Burden defense. ECF No. 23 at 4. Accordingly, to the extent Defendant's Answer can be construed as having raised these defenses, the undersigned recommends that Plaintiff's Motion be granted.
Defendant also “withdraws affirmative defense [2] (claims exceed the scope of [or] are inconsistent with Plaintiff's administrative charge) and concedes with regard to defense [11] that Plaintiff's recovery, if any, may not be offset by disability benefits she has received and continues to receive.” Id.; see ECF No. 4. Therefore, the undersigned recommends that Plaintiff's Motion as to these two defenses be granted.
As to the remaining defense (punitive damages), however, Defendant maintains that Plaintiff is not entitled to summary judgment. ECF No. 23 at 4. This affirmative defense states:
Plaintiff is barred from pursuing punitive damages because Defendant did not engage in any acts or omissions with malice or reckless indifference to Plaintiff's rights or otherwise engage in any acts sufficient to meet the applicable statutory standard for the award of such damages. See, e.g., Kolstad v. Am. Dental Ass'n, 119 S.Ct. 2118 (1999).ECF No. 4 at 15.
In Kolstad, the Supreme Court concluded a defendant is appropriately subject to punitive damages if it acts “in the face of a perceived risk that its actions will violate federal law.” 527 U.S. 526, 536. Furthermore, the Court has cautioned that:
There will be circumstances where intentional discrimination does not give rise to punitive damages liability under this standard. In some instances, the employer may simply be unaware of the relevant federal prohibition. There will be cases, moreover, in which the employer discriminates with the distinct belief that its discrimination is lawful. The underlying theory of discrimination may be novel or otherwise poorly recognized, or an employer may reasonably believe that its discrimination satisfies a bona fide occupational qualification defense or other statutory exception to liability.Id. at 537.
In her Motion, Plaintiff argues that she “has offered evidence which meets the standard for an award of punitive damages” and that “[g]iven the extent of the evidence that Sodexo was not acting in good faith, the jury may infer that the violation of federal law was malicious and willful,” such that the court should grant summary judgment in her favor. ECF No. 21 at 29. Defendant responds that Plaintiff has failed to identify the “extensive evidence” upon which she relies, and that her motion is premature, as “the Court will be better equipped to make a punitive damages determination just before or during trial, should this case proceed to trial.” ECF No. 23 at 6.
In her Reply, Plaintiff states that she merely seeks a ruling that she is not “barred” from pursuing punitive damages. ECF No. 24 at 7. However, pursuant to the wording of the defense, Plaintiff would be barred only if Defendant can establish that it “did not engage in any acts or omissions with malice or reckless indifference to Plaintiff's rights or otherwise engage in any acts sufficient to meet the applicable statutory standard for the award of such damages.” See ECF No. 4 at 15. Thus, for purposes of her Motion, Plaintiff must demonstrate that there is no genuine dispute of material fact that Defendant engaged in such acts or omissions sufficient to meet the applicable statutory standard. She has not done so. Rather, she concedes that only the jury can make a finding that she is entitled to punitive damages and that “the Court can decide during trial whether there has been sufficient evidence to give that issue to the jury. ECF No. 24 at 7; see also ECF No. 21 at 29 (arguing not that the jury must find a violation occurred but only that “the jury may infer that the violation of federal law was malicious and willful”) (emphasis added). Accordingly, viewing the evidence in the light most favorable to Defendant, the non-moving party, the undersigned cannot say, as a matter of law, that no reasonable jury could find that “Defendant did not engage in any acts or omissions with malice or reckless indifference to Plaintiff's rights or otherwise engage in any acts sufficient to meet the applicable statutory standard for the award of such damages.” See ECF No. 4 at 15.
The undersigned agrees with Defendant that “the trial judge will be better equipped to make this determination either just before or during the trial.” Ellis v. Harrelson Nissan of S.C., LLC, No. 0:15-CV-3322-MBS-KDW, 2017 WL 9286971, at *21 (D.S.C. May 22, 2017) (recommending that Defendant's motion for summary judgment on punitive damages affirmative defense be postponed until trial), report and recommendation adopted, No. 0:15-CV-3322-MBS, 2017 WL 4349212 (D.S.C. Sept. 29, 2017); see Smith v. Tower Auto. Operations USA I, LLC, No. 4:12-CV-93-CWR-FKB, 2013 WL 6240247, at *9 (S.D.Miss. Dec. 3, 2013) (“The Court finds that a ruling on the punitive damages claim is premature at this juncture, as the Court is not armed with enough knowledge to determine whether Plaintiffs meet this standard. Thus, the Court will defer its ruling until after the presentation of proof at trial.”). Accordingly, the undersigned recommends that the Court deny, without prejudice, Plaintiff's Motion as to the punitive damages defense at this time.
II. Defendant's Motion
Defendant moves, pursuant to Rule 56, for summary judgment in its favor and dismissal of this action. In her Complaint, Plaintiff alleges claims for failure to accommodate and for wrongful discharge under the Americans with Disabilities Act (“ADA”). ECF No. 1-1 at 10-11.
Defendant first argues that it is entitled to summary judgment on both of Plaintiff's claims because Plaintiff's representations in her paperwork for long-term disability and social security disability insurance benefits negate her ability to establish that she is a qualified individual with a disability, which is an essential element of her claims. ECF No. 32-1 at 18-24. Second, Defendant argues that Plaintiff's failure to accommodate claim must be dismissed with prejudice because it is time-barred. Id. at 24-27. Third, Defendant argues that Plaintiff is unable to carry her burden of proving a claim of either failure to accommodate or wrongful discharge under the ADA. Id. at 2744.
Underlying each of these arguments is Defendant's contention that Plaintiff was not able to perform the essential functions of her position. Therefore, the undersigned finds it necessary to evaluate the parties' positions regarding the essential functions before proceeding to Defendant's three arguments for summary judgment.
A. The Essential Functions of the GM5-PS Position
Title I of the ADA prohibits employment discrimination “against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). In doing so, the ADA makes it unlawful for an employer to fail to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an . . . employee.” 42 U.S.C. § 12112(b)(5)(A). An employee is qualified if she “can perform the essential functions of the employment position that [she] holds or desires,” either with or without reasonable accommodation. 42 U.S.C. § 12111(8).
A function is essential as long as it “bears more than a marginal relationship to the job at issue.” Elledge v. Lowe's Home Centers, LLC, 979 F.3d 1004, 1009 (4th Cir. 2020) (quoting Rohan v. Networks Presentations LLC, 375 F.3d 266, 279 (4th Cir. 2004)); see also 29 C.F.R. § 1630(n)(1) (defining an “essential function” as a “fundamental job dut[y]”). Moreover, in any determination of a position's essential functions, “consideration shall be given to the employer's judgment.” 42 U.S.C. § 12111(8); see Elledge, 979 F.3d at 1009 (“[T]he decision about a position's essential functions belongs, in the first instance, to the employer; it accordingly merits considerable deference from the courts.”) (citation and internal quotation marks omitted).
“While the ADA identifies a position's written job description as relevant to the employer's judgment on this question, 42 U.S.C. § 12111(8), it does not posit that description as dispositive.” Id. Rather, a court performing the essential functions inquiry “must consult the full range of evidence bearing on the employer's judgment, including the testimony of senior officials and those familiar with the daily requirements of the job.” Id. (citing D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1230 (11th Cir. 2005); Rodal v. Anesthesia Group of Onondaga, P.C., 369 F.3d 113, 120-21 (2d Cir. 2004); Stephenson v. Pfizer, Inc., 641 Fed.Appx. 214, 216 n.4 (4th Cir. 2016)).
Moreover, the applicable regulations identify seven factors that are “evidence of whether a particular function is essential”: (1) the employer's judgment as to which functions are essential; (2) written job descriptions prepared before advertising or interviewing applicants for the job; (3) the amount of time spent on the job performing the function; (4) the consequences of not requiring the incumbent to perform the function; (5) the terms of a collective bargaining agreement; (6) the work experience of past incumbents in the job; and (7) the current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3)(i)-(vii). “None of those seven factors is dispositive, and not all of them will be relevant in every case.” Stephenson, 641 Fed.Appx. at 220.
Upon close review of the full record, the undersigned finds genuine disputes of material facts regarding the essential functions of Plaintiff's job. Specifically, the parties have presented competing evidence regarding the walking and standing requirements of the position. Defendant has produced evidence that it considered Plaintiff subject to all of the job duties listed in both the GM-5 job description that she signed at the beginning of her employment-which lists the typical physical requirements of the job as requiring “some walking, standing, bending or carrying of light items,” ECF No. 32-2 at 178 (emphasis added)-and the PSM 2 job description, which states that “[s]pecific physical characteristics and abilities are required to perform the work, such as aboveaverage agility and dexterity, and long periods of walking, standing, bending or carrying moderately heavy items,” see ECF No. 33-7 at 3 (emphasis added). Defendant also produced evidence that Plaintiff's current supervisors expected her to extensively round on the nursing unit and monitor the tray line.
Plaintiff, on the other hand, has produced evidence that while her position was not sedentary, long periods of walking and standing were not essential functions of the position. Specifically, her former supervisor, Pappas, testified that Plaintiff's position did not require extensive walking or standing and that most monitoring was done via computer metrics. ECF No. 38-9 at Pappas Dep. 28:15-29:10. Pappas also testified that it was a “rare occurrence” for the General Manager 5 to do any rounding-meaning “visiting with patients at key times”-or to monitor the tray line where meals are assembled. Id. at 20:21-22:1. Nonetheless, Plaintiff testified that in her position, she went on all the safety rounds and routinely met with nursing services, the clinical staff, physicians, and registered dieticians. ECF No. 32-2, Pl. Dep. 35:8-14, 40:11-16, 55:15-24, 226:4-10. She explained that safety rounds required her to attend a meeting with nurses and Support Services but did not require much walking. ECF No. 38-1, Pl. 2d Decl. ¶ 12. She further explained that she conducted quarterly Nurse Rounds either in person or over the phone. Id. ¶ 10. And she averred that while Patient Rounds required her to go to patient floors to check in with nurses, she could do this duty, and all of her rounding duties, despite her mobility issues. Id. ¶¶ 10-12.
Regarding the tray line, Plaintiff averred that she primarily monitored the line through computer software, but she also physically observed the line each time she left her office, and at times she would stand and observe the tray line for a short time. Id. ¶ 13. She also worked with the executive chef to ensure the quality of the food, physically went to the IOP a couple times a week to check in with food service employees there, checked in on call center employees whose office was near hers, checked in daily with food service employees building trays, and daily checked inventory. Id. at 42:9-12, 91:8-12, 94:8-17, 111:9-14, 112:4-113:8, 116:2-8. Finally, Plaintiff averred in her social security application that she walked for three hours, stood for two hours, and sat for three hours each day in her GM5-PS position. ECF No. 32-4 at 44.
Viewing the evidence in the light most favorable to Plaintiff, the undersigned concludes that it is undisputed that some walking and standing was essential to her position-that is, “that it bear[s] more than a marginal relationship to the job at issue.” See Elledge, 979 F.3d at 1011. However, there is a genuine dispute of material fact regarding whether the position required long periods of walking and standing, as Defendant suggests. With these conclusions in mind, the undersigned now turns to Defendant's specific arguments.
B. Whether Plaintiff's Claims Are Barred by Representations Made in Her Disability Applications
A plaintiff suffering from a disabling medical condition who has filed a claim under the ADA also may become eligible for various disability benefits programs. In applying for disability benefits, “a plaintiff's sworn assertion . . . that she is, for example, ‘unable to work' will appear to negate an essential element of her ADA case.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); see Hinson v. City of Columbia, No. CIV.A. 3:12-01032-MB, 2013 WL 5409140, at *6 (D.S.C. Sept. 24, 2013) (“In other words, the plaintiff claims that he can work (for purposes of the ADA claim), while simultaneously claiming that he cannot work (in the disability benefits application).”), aff'd, 564 Fed.Appx. 11 (4th Cir. 2014).
However, the United States Supreme Court has held that applying for disability benefits does not necessarily preclude a court from finding that a terminated employee was able to fulfill his or her occupational duties as of the time of his or her termination. Cleveland, 526 U.S. at 80506. This is because “an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with [a social security] claim that the plaintiff could not perform her own job (or other jobs) without it.” Id. at 803 (emphasis in original). Nonetheless, “an ADA Plaintiff cannot simply ignore the apparent contradiction that arises out of [an] earlier . . . total disability claim. Rather, [the plaintiff] must proffer a sufficient explanation.” Id. at 806.
“To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless perform the essential functions of her job, with or without reasonable accommodation.” Id. at 807 (internal quotation marks omitted). The appropriate analysis requires a “careful examination of the factual record to determine whether the plaintiff had offered a satisfactory explanation for the apparent contradiction between the disability benefits application and the ADA claim.” EEOC v. Greater Balt. Med. Ctr. Inc., 477 Fed.Appx. 68, 73 (4th Cir. 2012); see also EEOC v. Stowe-Farm Mills, Inc., 216 F.3d 373, 377, 379-80 (4th Cir. 2000); Fox v. Gen. Motors Corp., 247 F.3d 169, 177 (4th Cir. 2001); Hinson, 2013 WL 5409140, at *6.
Defendant argues that Plaintiff has failed to offer a satisfactory explanation for the apparent contradiction between statements she made on her application for long-term disability (“LTD”) insurance benefits and on her application for social security disability insurance benefits. Upon careful examination of the factual record, the undersigned disagrees.
1. LTD Benefits Application
Regarding her application for LTD benefits, Defendant argues that Plaintiff's statements that, as of September 1, 2019, she was unable to go for walks and unable to do her hobby of canning fruit are inconsistent with her ADA claim. With respect to walking, Question 4 of the LTD application asked, “Do you like to go for walks? ___ Yes ___ No How far do you walk (miles)? ___ How often do you walk? How long do you walk (hours/minutes)? ___.” ECF No. 32-4 at 27. Plaintiff checked the box next to “Yes,” wrote “0” in all three blanks, and wrote “unable to do” at the end. Id. When asked at her deposition whether she was unable to walk when she filled out the application, Plaintiff testified,
Well, my interpretation of that question is, you're going outside in the evening with your family and taking a nice stroll down your road and around. That's how I interpreted that question, not - it says, Do you like to go for walks? Yes. . . . I interpreted that question differently than you are interpreting it.ECF No. 38-3 at Pl. Dep. 311:8-312:8.
As noted above, there is a genuine issue of material fact with regard to whether Plaintiff's position required long periods of walking and standing, as Defendant suggests. Viewing the facts in the light most favorable to Plaintiff, the undersigned finds that Plaintiff has provided a satisfactory explanation for the apparent contradiction regarding Plaintiff's assertion in her ADA suit that she could have performed the essential walking functions of her job with a reasonable accommodation and her statement on her LTD application that she was unable to go for walks. See Cleveland, 526 U.S. at 803 (noting “an ADA suit claiming that the plaintiff can perform her job with reasonable accommodation may well prove consistent with [a social security] claim that the plaintiff could not perform her own job (or other jobs) without it.” (emphasis in original).
Similarly, the undersigned agrees with Plaintiff that there is no evidence that her hobby of canning-which she testified is an all-day activity that requires going to the orchard to pick fruit and then a multi-hour, “time sensitive” process in the kitchen-is similar to the essential functions of her job as a GM5-PS, such that her statement that she is unable to can fruit does not undermine her ADA claims. See ECF Nos. 38 at 28-29; 38-3, Pl. Dep. at 307:19-311:2.
2. Social Security Benefits Application
Plaintiff applied for social security benefits on September 24, 2019. ECF No. 32-4 at 3550. In her Disability Report, completed by Plaintiff's non-attorney representative, Plaintiff identified the following mental or physical conditions that limit her ability to work: (1) complications from left hip replacement surgery; (2) nerve palsy/damage in left foot immediately postop; (3) “difficulty walking, uses brace, walker and cane”; and (4) BMI 40.9 with nerve damage in foot. Id. at 42. She further reported that her conditions caused her to make changes in her work activity on November 1, 2018, and that she stopped working on February 12, 2019, “[b]ecause of my condition(s).” Id. at 42-43. She further stated that in her GM5-PS job, she walked for three hours a day, stood for two hours a day, and sat for three hours a day. Id. at 44.
The Disability Determination Explanation awarding benefits noted that Plaintiff “alleges inability to function and/or work as of 02/12/2019.” Id. at 36. At her deposition, Plaintiff was asked whether this statement was accurate, and Plaintiff replied, “Yes, that's because that's what my employer says - said.” ECF No. 320:15-19. The evidence before the Court indicates that Plaintiff received the letter denying her request for accommodation and placing her on an unpaid leave of absence on February 11, 2019-the day before the date listed on the social security paperwork as the date her inability to work began. See ECF No. 32-4 at 7-9; 32-2, Pl. Dep. 275:6-278:18. On this record, and viewing the facts in the light most favorable to Plaintiff, the undersigned finds that Plaintiff has provided a satisfactory explanation-specifically her employer's statement, after denying her accommodation request, that she could not work-for the apparent contradiction between Plaintiff's assertion in her ADA suit that she could have performed the essential functions of her job with reasonable accommodation and her statement in her social security application that she was unable to work as of February 12, 2019-the day after she learned that her request for accommodation had been denied. Cleveland, 526 U.S. at 807 (“To defeat summary judgment, that explanation must be sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the earlier statement, the plaintiff could nonetheless perform the essential functions of her job, with or without reasonable accommodation.”)
At the deposition, defense counsel asked Plaintiff to review the document and respond whether the statements in the document were accurate. However, as to this statement, the deposition transcript reflects that counsel stated, “And then it says, The individual alleges inability to function or walk as of 2/12/2019, right? It's right below that.” ECF No. 38-3, Pl. Dep. at 320:15-17 (emphasis added). The form actually says, “The individual alleges inability to function or work as of 2/12/2019.” ECF No. 32-4 at 36 (emphasis added). It is not clear whether counsel misspoke or if the word “walk” is a typo in the transcript.
For the foregoing reasons, the undersigned finds that Plaintiff has carried her burden of explanation under Cleveland. See Hinson, 2013 WL 5409140, at *6. Accordingly, the undersigned concludes that summary judgment is not warranted on this basis.
C. Whether Plaintiff's Failure to Accommodate Claim is Time Barred
The ADA requires that a plaintiff exhaust her administrative remedies by filing a charge of discrimination with the EEOC before filing suit. Sydnor v. Fairfax County, Va., 681 F.3d 591, 593 (4th Cir. 2012) (“[T]he ADA incorporates [Title VII's] enforcement procedures, including the requirement that a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before pursuing a suit in federal court.” (internal citations omitted)).
Generally, a plaintiff “must file an administrative charge with the EEOC within 180 days of the alleged misconduct.” Williams v. Giant Food Inc., 370 F.3d 423, 428 (4th Cir. 2004) 2 (citing 42 U.S.C. §§ 2000e-5(e)(1), 12116(a)). This period is extended by 300 days when the ADA charge is filed in a deferral state, such as South Carolina. Baker v. Boeing Co., Inc., No. CV 2:18-2574-RMG, 2021 WL 2283808, at *2 (D.S.C. June 4, 2021); see Williams, 370 F.3d at 428. After timely filing a charge and receiving a right-to-sue letter from the EEOC, a plaintiff has 90 days to file a lawsuit in federal court. 42 U.S.C. §§ 2000e-5(f)(1), 12117(a).
Plaintiff filed her EEOC charge on January 20, 2020. ECF No. 32-2 at 212; id. at Pl. Dep. 62:16-63:15. Defendant argues that any claim predicated on alleged misconduct occurring before March 26, 2019, which is the 300-day look-back period, should be dismissed as untimely.
In her Response, Plaintiff concedes “that her pre-March 26, 2019 requests for accommodation are time barred.” ECF No. 38 at 30. However, she contends that she “made three requests for accommodations that fall within the 300 days of her filing her charge (5/6/19, 7/11/19, & 10/31/10)” and that “Sodexo did not grant any of them.” Id. Specifically, she contends she made three additional requests for accommodation by submitting doctor's notes releasing Plaintiff to return to work with restrictions. Id. at 30-31. In support, she points to the testimony of Sodexo's 30(b)(6) witness that Sodexo would review, as a request for ADA accommodation, a doctor's note from an employee whom Sodexo is aware has a disability and has asked for restrictions relating to disability. Id.; see ECF No. 39-3, Ellenburg Dep. at 26:12-17; id. at 113:1-4 (testifying that Sodexo began treating Plaintiff's doctor's restrictions as a request for ADA accommodation “no later than January 2019”). She maintains, therefore, that as to those three requests, her failure to accommodate is not time barred. Id.
In it Reply, Defendant first argues that Plaintiff testified that her February 2019 accommodation was the only request for accommodation that she made. ECF No. 39 at 3 (citing ECF No. 32-2 at 279:4-19). Upon review of Plaintiff's testimony, the undersigned disagrees.
Plaintiff testified that her specific request for an accommodation-use of a walker at work-was denied by Defendant in a letter addressed to her dated February 8, 2019, which she received on February 11, 2019. ECF No. 32-4 at 7; ECF No. 32-2, Pl. Dep. 275:6-276:10; 277:9278:3 (“So they denied - so, then, my - so my ability to use a walker was denied.”). Plaintiff also testified that she did not thereafter request any other accommodations pursuant to the ADA:
Q: ....Did you ask for any other accommodations from your employer?
A: Why would I?
Q: I don't know.
A: They -
Q: I just have to ask you.
A: I did not ask -
Q: So it sounds like -
A: -- for any other accommodations because everything was gathered around my ability to walk and stand.
Q: Okay. So you don't recall ever asking for any other accommodations after receipt of this letter?
A: No -
Q: Okay.
A: -- because of the terms of the letter.ECF No. 32-2 at 279:4-19.
Although Plaintiff testified that she never requested any accommodation other than a walker, it is not clear from this testimony whether she made any additional requests for the specific accommodation of a walker. Thus, the undersigned cannot say, as a matter of law, that this testimony forecloses her argument that she made three post-February 2019 requests for accommodation.
Defendant next argues that the doctor's notes Plaintiff submitted in response to Sodexo's leave of absence letters were not requests for accommodation but that, even if they could be viewed as such, Plaintiff's “failure to accommodate claim still fails because she ‘has not come forth with sufficient evidence suggesting there have been subsequent denials of a request for a reasonable accommodation to constitute a ‘discrete act' falling within the limitations period.'” ECF No. 39 at 6 (quoting Crotty v. Windjammer Vill. of Little River, S.C., No. 4:15-CV-04042-RBH, 2018 WL 4560746, at *7 (D.S.C. Sept. 24, 2018) (Fair Housing Act case)).
“A ‘defendant's failure to accommodate constitutes a discrete act rather than an ongoing mission' and, therefore, an untimely claim cannot be saved under the continuing-violation doctrine.” Baker, 2021 WL 2283808, at *3 (quoting Hill v. Hampstead Lester Morton Ct. Partners LP, 581 Fed.Appx. 178, 181 (4th Cir. 2014)); see also Holland v. Washington Homes, Inc., 487 F.3d 208, 219-20 (4th Cir. 2007) (holding it “declined to extend the limitations periods for discrete acts of discrimination merely because the plaintiff asserts that such discrete acts occurred as part of a policy of discrimination”).
“Each discrete discriminatory act starts a new clock for filing charges alleging that act.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). “The existence of past acts and the [plaintiff's] prior knowledge of their occurrence, however, does not bar [a plaintiff] from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed.” Id. “Thus, a plaintiff who renews a request for a previously denied accommodation may bring suit based on a new discrete act of discrimination if the defendant again denies the request, and the subsequent denial carries its own, independent limitations period.” Hill, 581 Fed.Appx. at 181 (internal quotation marks and citations omitted) (citing Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 131 (1st Cir. 2009); Cherosky v. Henderson, 330 F.3d 1243, 1248 (9th Cir. 2003)).
Although “[a] new request for the same accommodation will restart the statute of limitations clock, . . . a mere request for reconsideration of a prior denial will not.” Owens-Hart v. Howard Univ., 220 F.Supp.3d 81, 93-94 (D.D.C. 2016) (citing Del. State Coll. v. Ricks, 449 U.S. 250, 261 n.15 (1980) (“Mere requests to reconsider, however, cannot extend the limitations periods applicable to the civil rights laws.”)). The court's focus, therefore, must be on discerning whether the facts presented reflect a situation “in which the employer commits multiple acts, each of which is independently discriminatory,” or one “in which an employee attempts to rely on either the ongoing effects of the employer's single discriminatory act or the employee's efforts to obtain reversal of that singular act of alleged discrimination.” Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 131 (1st Cir. 2009) (“It is settled that an employee may not extend or circumvent the limitations period by requesting modification or reversal of an employer's prior action.”) (citation omitted).
Importantly, “changes in either the employee's condition or the workplace environment” are not necessary to re-start the limitations clock; rather, the “pivotal question” is simply “whether [the employee] made a specific request for accommodations that was denied during the statutory period[.]” Floyd v. Lee, 968 F.Supp.2d 308, 324 (D.D.C. 2013) (alterations in original) (quoting Tobin, 553 F.3d at 133); see Owens 220 F.Supp.3d at 94 (finding that reasonable factfinder could conclude plaintiff's multiple requests for the studio to be cleaned each constituted a new, independent request for accommodation); Hill, 581 Fed.Appx. at 181 (finding that where plaintiff alleged repeated denial of his requests for accommodations and only the last request fell within the limitations period, only plaintiff's claim premised on that final request was not time-barred).
Pursuant to the case law above, the pivotal question is whether any of Plaintiff's post February 2019 communications constituted a request for accommodation that was denied.
1. Whether Plaintiff's May 2019 Communication Was a Request for Accommodation
On April 30, 2019, Sodexo sent Plaintiff an Expiration of Leave of Absence letter (“LOA Letter”) stating, in relevant part:
As you are aware, you have been on a Leave of Absence since February 11, 2019.
The expiration of your leave of absence and your expected return to work date is May 6, 2019.
If the leave was for your own serious health condition, in order to be restored to employment on your expected return to work date, you must provide the enclosed Return-to-Work Medical Certification Form....
If you are unable to return to work, you may request an extension of leave by completing and returning the enclosed Leave of Absence Extension Request Form[,] which requires completion by a health care provider to support the request for extension of your leave of absence....
If you fail to contact me or provide either a completed Return to Work Medical Certification Form or a completed Leave of Absence Extension Request form and do not report to work on your expected return to work date of May 6, 2019, your leave will no longer be approved and Sodexo will consider you to have voluntarily resigned your employment.ECF No. 38-14.
In response to this letter, Plaintiff submitted a Request for Extension of Leave in which she stated, in relevant part: “My employer will not accept a return to work with accommodations. My medical condition has not improved to permit me to be able to walk without an aid; to stand and walk continuously throughout the day.” ECF No. 33-8 at 4. She also submitted a Return-to-Work Certification form completed by Dr. Rudolph, which indicated that Plaintiff could return to work with the following restrictions through at least July 31, 2019: “must use a cane or walker, must wear brace and unable to walk or stand for more than 15 minutes @ time.” Id. at 5. She also included a form completed by Dr. Rudolph, which indicated that Plaintiff required leave through July 31, 2019, that she could return on an intermittent basis or with a reduced schedule of forty hours a week. Id. at 6. Sodexo granted Plaintiff an extension of leave through July 31, 2019. ECF No. 38-16.
Viewing the evidence in the light most favorable to Plaintiff, the undersigned finds that there is a genuine dispute of material fact regarding whether Plaintiff's May 2019 communication constituted a request for accommodation and whether it was denied. Plaintiff requested an extension of her leave, which was granted. However, she also submitted a Return-to-Work Certification from her doctor identifying an accommodation (use of a cane or walker), and she affirmatively stated that she cannot walk without an aid but her employer will not permit her to return with an accommodation. Moreover, Sodexo testified that it considered her doctor's restrictions to be requests for accommodation after January 2019. Thus, a reasonable juror could conclude that these documents were sufficient to communicate to the employer that Plaintiff wanted to return to work but needed an accommodation of a walking aid to do so. A reasonable jury also could conclude that Plaintiff's note on her Request for Extension of Leave form, coupled with Plaintiff's submission of the Return-to-Work Certification, triggered her employer's duty to engage in the interactive process to clarify whether she was requesting an extension or requesting to return to work with accommodations. Although Defendant granted Plaintiff an extension of leave, it did not permit her to return to work, and there is no evidence in the record of any attempt by Defendant to communicate with Plaintiff regarding her contradictory submissions. Accordingly, the undersigned cannot conclude, at this time, that Plaintiff's claim for failure to accommodate based on the May 2019 communication is time-barred.
2. Whether Plaintiff's July 2019 Communication Was a Request for Accommodation
On July 10, 2019, Sodexo sent Plaintiff a second LOA Letter, which is substantially the same as the first LOA Letter excerpted above, except that it states that her expected return-to-work date is August 1, 2019. ECF No. 39-2 at 1. In response, Plaintiff submitted another request for extension of leave, again stating, “My employer will not accept a return to work with accommodations. My medical condition has not improved to permit me to be able to walk without an aid; to stand and walk continuously throughout the day.” ECF No. 33-8 at 7. She also submitted a form completed by Dr. Rudolph stating that Plaintiff seeks leave for a medical condition that likely would last through October 31, 2019. Id. at 8. He provided contradictory statements, first stating that she could return to work for forty hours a week, but then writing “unknown” next to a question asking him to “provide the date the employee may be able to return to work (with or without restrictions).” Id. Unlike the May communication, Plaintiff did not submit a Return-to-Work certification from her doctor, which was required if she was seeking to return to work. Sodexo granted Plaintiff's extension of leave request through October 31, 2019. Id. at 9.
Viewing the evidence in the light most favorable to Plaintiff, the undersigned concludes that no reasonable juror would find this communication to be seeking, as an accommodation, use of a walking aid. Although Plaintiff's Request for Extension of Leave contained the same message that her May request had, she did not submit the Return-to-Work certification, nor any form from her doctor supporting the need for use of walking aids. Thus, the undersigned concludes that this communication does not support a failure to accommodate claim.
3. Whether Plaintiff's October 2019 Communication Was a Request for Accommodation
On October 14, 2019, Sodexo sent Plaintiff an LOA Letter informing her that, if she was unable to return on November 1, 2019, Sodexo would separate her employment. ECF No. 38-19. In response, Plaintiff submitted a return-to-work form, completed by Dr. Rudolph, which stated that Plaintiff could return to work with the following restrictions: “must use cane and wear brace and no standing more than 5 min @ time.” ECF No. 32-4 at 11. Defendant then terminated her employment. For the same reasons that the undersigned finds a question of fact regarding the May 2019 communication, the undersigned concludes that there is a question of fact as to whether the October 2019 was a request for a reasonable accommodation.
Viewing the evidence in the light most favorable to Plaintiff, the undersigned concludes that there is a genuine question of material fact as to whether Plaintiff's May 2019 and October 2019 submissions constituted new requests for accommodation. Accordingly, to the extent Plaintiff's failure to accommodate claim is based on these communications, the undersigned cannot conclude, at this time, that it is time barred.
D. Analysis of Plaintiff's Claim for Failure to Accommodate under the ADA
The ADA requires employers to make reasonable accommodations to “the known physical or mental limitations of an otherwise qualified [employee] with a disability.” Laird v. Fairfax Cnty., 978 F.3d 887, 892 (4th Cir. 2020) (quoting 42 U.S.C. § 12112(b)(5)(A)). An employee is qualified if she “can perform the essential functions of the employment position that [she] holds or desires,” either with or without reasonable accommodation. 42 U.S.C. § 12111(8).
To prove a claim for ADA failure to accommodate, Plaintiff must show the following: (1) she has a disability within the meaning of the statute; (2) her employer had notice of the disability; (3) with reasonable accommodation she could perform the essential functions of the employment position in question; and (4) her employer refused to make such reasonable accommodation. See Wirtes v. City of Newport News, 996 F.3d 234, 238-39 (4th Cir. 2021) (citing Wilson v. Dollar Gen. Corp., 717 F.3d 337, 345 (4th Cir. 2013)).
Defendant does not dispute the first two elements: that Plaintiff has a disability or that it was on notice of the disability; however, Defendant argues that Plaintiff cannot establish the third and fourth elements of her claim. ECF No. 32-1 at 28 n.28.
As stated above in Section A, it is undisputed that some walking and standing was an essential function of Plaintiff's GM5-PS job. Moreover, it is undisputed that Plaintiff could not perform the essential walking and standing functions of her position without reasonable accommodation. She stated in her May 2019 Request for Extension of Leave that her “medical condition has not improved to permit [her] to be able to walk without an aid; to stand and walk continuously throughout the day.” ECF No. 33-8 at 4. Moreover, in the May 2019 Return-to-Work Certification form, her doctor indicated that she “must use a cane or walker, must wear brace and [is] unable to walk or stand for more than 15 minutes [at a] time.” Id. at 5. Thus, the issues with regard to the third and fourth elements of this claim is whether Plaintiff could perform the essential function of her job with reasonable accommodation and whether the employer failed to provide it.
Plaintiff concedes that her request for accommodation made before her leave of absence began in February 2019 is time barred. With respect to the July 2019 request, the evidence, viewed in the light most favorable to Plaintiff, shows that Plaintiff did not request to return to work but rather submitted only a request for an extension of her leave of absence. Further, the undisputed evidence shows that her request was granted. Thus, the undersigned concludes that Plaintiff cannot establish the fourth element of her claim for failure to accommodate based on the July 2019 request. Accordingly, the undersigned evaluates Plaintiff's claim for failure to accommodate based on the May 2019 request and the October 2019 request, as set forth below.
1. May 2019 Request
Viewed in the light most favorable to Plaintiff, the May 2019 paperwork appears to make two requests: (1) a request for extension of her leave of absence, as evidenced by Plaintiff's completed form and the medical paperwork supporting a leave of absence, and (2) a request to return to work and be allowed to “use a cane or walker,” as evidenced by the Return-to-Work Certification from her doctor and the note from Plaintiff that her employer will not let her return to work with accommodations and she needs to use walking aids. Although it is undisputed that Defendant granted Plaintiff an extension of her leave of absence and did not permit her to return to work, the parties dispute whether unpaid leave was a reasonable accommodation and whether Plaintiff would have been able to perform the essential functions of her position with her requested accommodation-use of a cane or walker. See 42 U.S.C. § 12111(8).
According to the Fourth Circuit, “a reasonable accommodation is one that is feasible or plausible,” and ascertaining the reasonableness of a proposed accommodation is a factual question. Reyazuddin v. Montgomery Cty., Md., 789 F.3d 407, 414, 416 (4th Cir. 2013). “[A] reasonable accommodation should provide a meaningful equal employment opportunity. Meaningful equal employment opportunity means an opportunity to attain the same level of performance as is available to nondisabled employees having similar skills and abilities.” Id. at 416 (quoting H.R. Rep. No. 101-485, pt. 2, at 66 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 349). A “reasonable accommodation . . . may include . . . job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, . . . and other similar accommodations for individuals with disabilities.” 42 U.S.C. § 12111(9). “To the extent an employee may be accommodated through a variety of measures, the employer, exercising sound judgment, possesses ‘ultimate discretion' over these alternatives.” Elledge, 979 F.3d at 1011 (quoting 29 C.F.R. app. § 1630). To survive summary judgment, Plaintiff must produce evidence sufficient for a jury to conclude that her proposed accommodation is reasonable on its face. Revazuddin, 789 F.3d at 414.
Viewing the evidence in the light most favorable to Plaintiff, the undersigned concludes that there is a question of material fact regarding whether Plaintiff's proposed accommodation- a cane or walker-was a reasonable accommodation that would have permitted her to perform the undisputed essential walking and standing functions of her position. Plaintiff has produced evidence that she had significant difficulty walking before her surgery and yet was able to perform the essential duties of her position. See Background Facts §§ I-II, supra. Her physician also opined that before her surgery, she was unable to stand or walk for long periods of time. ECF No. 38-10 at 13:14-21.
Moreover, the undersigned finds that there is a question of fact regarding whether an unpaid leave of absence is a reasonable accommodation in this instance, particularly if it would have been possible for Plaintiff to return to work and perform the essential functions of her job with the use of walking aids. See Reyazuddin, 789 F.3d at 416 (explaining that a reasonable accommodation should provide a meaningful equal employment opportunity); see also O'Reilly v. Bd. of Child Care of United Methodist Church, Inc., No. CV JKB-20-0570, 2020 WL 5913242, at *4 (D. Md. Oct. 6, 2020) (finding, on a motion to dismiss, that it was “not clear as a matter of law that [defendant] provided [plaintiff] with a reasonable accommodation by granting her unpaid leave”). Accordingly, the undersigned recommends that the failure to accommodate claim proceed to trial as to the May 2019 request.
2. October 2019 Request
However, as to the October 2019 request, the undersigned finds that Plaintiff has failed to carry her burden of showing that she could perform the essential functions of her job with or without a reasonable accommodation. Her Return-to-Work Certification requested only a cane but limited her to standing for only five minutes at a time, and it stated that her condition was likely to continue for another nine months. Although Plaintiff has produced evidence that the physician's notation of “5” as opposed to a longer period was a mistake, ECF No. 38-10, she has not produced any evidence that Sodexo knew it was a mistake. Nor has she produced evidence that she could perform the undisputed essential walking and standing functions of her job with such a limitation, even with use of a cane. See ECF No. 32-4 at 44 (Social Security application averring that the GM5-PS position required her to stand two hours a day and walk three hours a day). Accordingly, the undersigned recommends granting summary judgment to Defendant as to the October 2019 request.
D. Claim of Disability Discrimination under the ADA
Title I of 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.” 42 U.S.C. 12112(a).
To establish a claim for disability discrimination under the ADA, a plaintiff must prove “(1) that she has a disability, (2) that she is a ‘qualified individual' for the employment in question, and (3) that her employer discharged her (or took other adverse employment action) because of her disability.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 572 (4th Cir. 2015) (quoting EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 377 (4th Cir. 2000)). If the employee makes this showing, “the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination.” Id. at 575. If the employer does so, the burden then shifts back to the plaintiff “to prove that these asserted justifications are pretextual.” Id. at 575-76.
It is undisputed that Plaintiff had a disability and that she was discharged in November 2019. The parties dispute, however, whether she was a “qualified individual” and whether she was discharged because of her disability. Defendant, pointing to Plaintiff's Return to Work Certification, argues that Plaintiff was not a “qualified individual” under the ADA because she could not perform the essential functions of her position with or without an accommodation, given her restriction to standing for no more than five minutes and her doctor's estimate that her restrictions would last another nine months. ECF No. 32-1 at 41-42 (“Sodexo's decision not to return Plaintiff to her position, after two extensions of her medical leave and receipt of a medical certification confirming no improvement in her restrictions and a duration of another nine (9) months, complied with applicable ADA law.”).
As stated in the previous section, viewing the facts in the light most favorable to the Plaintiff, the undersigned is constrained to agree that Plaintiff has failed to show that she was a “qualified individual” at the time of her termination. Accordingly, the undersigned recommends granting summary judgment on this claim, as Plaintiff has failed to establish an essential element of her claim. See Celotex Corp., 477 U.S. at 322-23.
CONCLUSION
For the reasons set forth above, it is RECOMMENDED that Plaintiff's Motion for Summary Judgment, ECF No. 21, be GRANTED, in part, and DENIED, in part.
The undersigned RECOMMENDS that Plaintiff's Motion be GRANTED on the issues that Plaintiff was an individual with a disability under the ADA and requested ADA accommodation triggering Defendant's duty to engage in the ADA good-faith interactive process; on any Direct Threat or Undue Burden defense that may have been raised by Defen affirmative defenses 2 and 11 in the Answer, as set forth above. And, the RECOMMENDS that Plaintiff's Motion be DENIED without prejudice as to damages defense at this time.
The undersigned further RECOMMENDS that Defendant's Motion f Judgment, ECF No. 32, be GRANTED, in part, and DENIED, in part.
The undersigned RECOMMENDS that Defendant's Motion be GRA Plaintiff's ADA discriminatory discharge claim, but DENIED as to Plaintiff accommodate claim.
AND IT IS SO RECOMMENDED.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).