Opinion
C/A 2:17-1350-RMG-BM
03-01-2019
ANDREW R. BUTLER, Plaintiff, v. PEPPERDAM CONSTRUCTION COMPANY, INC., Defendant.
REPORT AND RECOMMENDATION
This action has been filed by the Plaintiff, a former employee of the Defendant, asserting claims for discrimination and retaliation in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. (First and Second Causes of Action). See Complaint.
The Defendant filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on November 13, 2018. Plaintiff filed a memorandum in opposition to the Defendant's motion on November 27, 2018, to which the Defendant filed a reply memorandum on December 4, 2018. Defendant's motion for summary judgment is now before the Court for disposition.
This case was automatically referred to the undersigned United States Magistrate Judge for all pretrial proceedings 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. The Defendant has filed a motion for summary judgment. As this is a dispositive motion, this Report and Recommendation is entered for review by the Court.
Background and Evidence
The facts and evidence are considered and discussed herein in the light most favorable to the Plaintiff, the party opposing summary judgment. Pittman v. Nelms, 87 F.3d 116, 118 (4th Cir. 1996).
Plaintiff was hired by the Defendant on or about October 1, 2015, where he worked as a Supervisor. Plaintiff's duties included, but were not limited to, ordering materials for jobs, being responsible for crew supervision, and implementing assignments for crew members. See Plaintiff's Deposition, p. 41.
Only selected portions of the Plaintiff's deposition testimony has been provided by the parties to the Court for review.
While working on December 10, 2015, Plaintiff and Jason Kobbe, a co-worker, were stopped at a traffic light in one of the Defendant's vehicles, when they were hit from behind by another vehicle. See Plaintiff's Exhibit B. The Defendant's vehicle sustained minor damage to the rear bumper. See Jennie Blanton Affidavit, ¶ 7. Following the accident, Plaintiff completed a company incident report which stated the nature of the injury as "impact" and the body parts affected as "shoulder and neck" for Kobbe and himself. Plaintiff and Kobbe both stated that no medical treatment was required and that neither employee even left work. See Jennie Blanton Affidavit, Exhibit A.
Kobbe attests that both employees had their seat belts on at the time of the accident, and that just before they were rear-ended, that Plaintiff said "hang on" or words to that effect indicating to Kobbe that Plaintiff noticed the other vehicle was about to make contact with their car. Kobbe also attests that the contact between the vehicles caused both of them to lunge forward. However, neither of them made any contact with the dashboard, steering wheel, windshield, or any other part of the vehicle. Kobbe attests that he was not hurt or injured and did not require any medical attention, and that when they exited the vehicle, Plaintiff did not indicate that he was injured in any way or required medical treatment. Kobbe recalled Plaintiff saying the following day at work that he was a "little stiff and a little sore", but he did not state that he needed any medical attention, and they worked together throughout the day without Plaintiff indicating that his physical condition prevented him from performing any of the duties required of them. Kobbe further attests that Plaintiff was able to, and did, engage in all of the physical activity required of them during that workday. See Kobbe Affidavit, ¶¶ 4-9.
On January 22, 2016, Plaintiff presented to the St. Francis Hospital Emergency Department with complaints of "Motor Vehicle Collision". The treatment notes state that "[t]here is a concern for cervical radiculopathy C5-6 right and the patient may need an MRI of the cervical spine if he does not improve with conservative therapy." However, these notes also reflect that back pain was absent, that Plaintiff had full active range of motion in all extremities; that his sensation was intact; his right hand was normal with no signs of compartment syndrome; no pain with passive ROM, no numbness, no sensation deficit, no palor, and no weak pulses; and weight bearing was listed as "able to fully bear weight, without difficulty." The discharge notes reflect that no medications were administered. Plaintiff was advised to take ibuprofen, apply over the counter pain cream to his neck and upper back, and to follow up with a physician for a possible MRI. See Court Docket No. 24-4; see also Court Docket No. 24-5.
On February 29, 2016, Physician's Assistant (PA) Taylor Callinan saw Plaintiff with complaints of post-traumatic headache, sprain of joints and ligaments of unspecific part of neck, ulnar nerve damage, and right arm weakness. Callinan noted that Plaintiff's right arm strength diminished compared to left on physical exam, especially his biceps, and Plaintiff reported to PA Callinan that his right arm had become progressively worse over the last two months while working. See Court Docket No. 25-3.
On March 7, 2016, Dr. Jeffrey Buncher opined that Plaintiff had a sprain of the joints and ligaments of unspecified parts of his neck, and a "strain unsp musc/fasc/tend at shldr/up arm, unsp arm". Plaintiff received a plan of hot or cold packs therapy, electric stimulation therapy, and massage therapy. See Court Docket No. 24-6. Plaintiff followed up for additional therapy on March 7th, 15th, March 17th (where an assessment of lumbar sprain was also listed), March 23rd, March 24th, April 7th, April 14th, April 18th, and April 19th. See Court Docket Nos. 24-7 through 24-15. On April 7, 2016, Plaintiff also had a follow up appointment with PA Callinan, who opined that Plaintiff had bilateral SI joint tenderness. Although Plaintiff's musculoskeletal exam was normal, PA Callinan found that his extremities reflected a decreased grip on the right side and he had right hand weakness, weak intrinsics involving the index and middle finger, and his wrist extension had weakness. With regard to treatment, PA Callinan noted that she was awaiting the lumbar MRI results, while the Cervical radicultiis MRI reflected crowding of the right C7 nerve with pannus formation seen on C1. She indicated that she would consult with a radiologist about that finding. She further opined that Plaintiff's physical exam findings did not correlate with his level of weakness and noted that she would evaluate with EMG/NCS of the right arm. Finally, she noted that Plaintiff should continue with therapy and that his work status was light duty. See Court Docket No. 24-16; see also Court Docket No. 24-7.
In the interim, Dr. Buncher completed a doctor's report of work status and restrictions starting on March 3, 3016, which included left hand work only, no lifting, no repeated bending/stooping, and no continual standing/walking/sitting/chairs. See Court Docket No. 24-2, p. 2. No indication is given on the form as to whether these were temporary or permanent restrictions, and the parties also dispute whether the Defendant had notice of these restrictions. See discussion, infra.
Although the parties address this report as being from Dr. Buncher, the Defendant submitted only the front page of this form, which reflects that it is from a W.M. Woodward MD, PA, or at least from Dr. Woodward's office. While the form lists the "return to work restrictions - Starting: 3/3/16" on this page, there is no signature or date signed on this page. See Court Docket No. 24-2, p. 2. However, since both parties cite to this document and neither party challenges its authenticity, the undersigned has cited to its findings where appropriate.
While Plaintiff's right arm initially presented a problem, he subsequently testified at his deposition that his left side is his injured side, and that he was still presenting him with problems at that time. See Court Docket Nos. 24-2, p. 2 and 25-3; Plaintiff's Deposition, pp. 67, 97.
The Defendant denies that it ever received a written copy of this document while Plaintiff was still employed, and Plaintiff has presented no evidence to dispute this assertion. However, while Defendant contends that it was also not notified orally about these restrictions, Plaintiff testified in his deposition that he did orally communicate the restrictions listed on that document to the Defendant. See discussion, infra. For purposes of summary judgment, the undersigned has accepted Plaintiff's version of events as being what happened.
Notwithstanding these medical consultations, it is undisputed that Plaintiff continued working and performing his duties after the accident. See Jennie Blanton Affidavit, ¶¶ 8, 12-13; Plaintiff's Deposition, pp. 96-98. On May 27, 2016, Plaintiff was driving a company backhoe on a construction site when he ran into a company truck with the backhoe. After his accident involving the backhoe, Plaintiff was asked to take a urine test pursuant to the Defendant's company policy. See Jennie Blanton Affidavit, ¶¶ 12-13 & Exhibit D; Plaintiff's Deposition, p. 71 [See Court Docket No. 24-19, p. 71]. The Defendant's drug policy, which Plaintiff signed, includes a provision that employees are required to undergo drug abuse urinalysis when involved in an on the job accident. See Court Docket No. 24-21, p. 9. However, Plaintiff refused to take the urine test, sending a text message to Brian Blanton (Jennie Blaton's son who served in an advisory role for the Defendant) which stated in the relevant section, "I AINT going back to the pen for 'narcotics' I AINT getted screwed for an MRI and VA crap. Sorry brother, just got way more to (sic) loose than most as a felon with multiple ABHAN's and VA feds with their anti social behavioral BS. . . ." See Court Docket No. 24-20, p. 8. Brian Blanton then texted to Plaintiff, "Did you make it to your drug test?" After not receiving a response, he then texted to Plaintiff the following day that "I'm assuming you quit since you didn't show up today?" Plaintiff then responded that he was at his weekend job and asked if he could return certain things the following day. After Brian responded that no one would be there the next day, Plaintiff stated that he would be there soon and inquired about calculation of hours accumulated for sick leave. Brian texted back that the "payroll department will buy back your leave." See Court Docket No. 24-20, p. 9. Although Plaintiff never returned to work, Brian and Plaintiff continued texting with each other over the next few days, with Brian texting to the Plaintiff on June 2, 2016: "You know we had no plans to fire you, you quit. We were going to keep you on. You didn't give us a chance to even talk to you about it. Post incident drug screens are a standard thing for anyone who has an incident . . . ." Id., at p. 11. However, although the Defendant asserts that Plaintiff quit by refusing to take the drug test and not returning to work, Plaintiff testified that he was fired by Jennie Blanton in her office (although he also testified that he could not remember the date or time this occurred). See Plaintiff's Deposition, p. 70 (Court Docket No. 25-1, p. 8).
Jennie Blanton, the Defendant's Vice President, testified that Plaintiff was not required to undergo a urine test after the December accident because he was not at fault or the cause of that accident. See Jennie Blanton Affidavit, ¶ 9.
Brian Blanton attests that the text message records attached to his affidavit are an exchange between him and the Plaintiff. See Brian Blanton Affidavit, ¶ 3. Plaintiff testified that the telephone number listed on the text messages was his number and has not contested the accuracy of the content of these messages. See Plaintiff's Deposition, p. 71 [Court Docket No. 24-19, p. 3].
Plaintiff contends in this lawsuit that he was fired because of a disability (various postural and lifting restrictions due to ulnar nerve damage) and out of retaliation for requesting reasonable accommodations for his condition. After receiving a Right to Sue letter from the EEOC, Plaintiff filed this lawsuit alleging that the Defendant violated his rights under the ADA.
Discussion
The Defendant has moved for summary judgment on Plaintiff's claims. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Rule 56, Fed.R.Civ.P. The moving party has the burden of proving that judgment on the pleadings is appropriate. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Once the moving party makes this showing, however, the opposing party must respond to the motion with specific facts showing there is a genuine issue for trial. Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992).
Here, after careful review and consideration of the evidence and arguments presented, the undersigned finds for the reasons set forth hereinbelow that the Defendant is entitled to summary judgment in this case.
(ADA Claims)
The ADA prohibits an employer from discriminating against a qualified individual on the basis of a disability. 42 U.S.C. § 12112. Although Plaintiff only alleges a "First Cause of Action" in his Complaint, Plaintiff actually asserts two distinct ADA claims: 1) that he had a qualifying condition under the ADA for which he requested a reasonable accommodation, but that the Defendant failed to accommodate his disability; and 2) that the Defendant retaliated against him and wrongfully terminated him on the basis of his disability and his requests for accommodations. Complaint, ¶ ¶ 30-35. See also Plaintiff's Brief, pp. 3, 9. The undersigned has addressed each of these claims, in turn.
Plaintiff should have set forth his claims in separate causes of action. Cf. Williams v. Little Rock Mun. Water Works, 21 F.3d 218, 222-223 (8th Cir.1994). However, as the Defendant has addressed both of these claims in its motion for summary judgment, the undersigned does not find Plaintiff's failure to separately state his claims in his Complaint to be a basis for dismissal of any of his claims. See also Brooks v Ross, 578 F.3d 574, 581 (7th Cir. 2009) [Plaintiff only required to provide sufficient notice to the Defendant of the basis of Plaintiff's claim]. However, Plaintiff's counsel is specifically cautioned that failure to properly separate their client's claims in the future could result in a forfeiture of any incorrectly pled claims.
I.
Failure to Accommodate
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). To establish a prima facie case of failure to accommodate under the ADA, Plaintiff must show that (1) he is an individual who has a disability within the meaning of the statute; (2) the Defendant had notice of his disability; (3) with reasonable accommodation he could perform the essential functions of his position; and (4) the Defendant refused to make such accommodations. See Reyazuddin v. Montgomery County, Maryland, 789 F.3d 407, 414-416 (4th Cir. 2015); Wilson v. Dollar General Corp., 717 F.3d 337, 345 (4th Cir. 2013); Donaldson v. Clover School District, No. 15-1768, 2017 WL 4173596 at * 3 (D.S.C. Sept. 21, 2017).
The Defendant must also be subject to suit under the ADA. 42 U.S.C. § § 12111(2)(5), 12112(a). Defendant does not contest that it is an entity subject to suit under the ADA.
With respect to the first requirement, the term "disability" is defined as, a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, b) a record of such impairment, or c) being regarded as having such an impairment. 42 U.S.C. § 12102(1); see Acosta, 2017 WL 1173583, at * 10; Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 467 (4th Cir. 2002). A "major life activity" is defined as a basic activity that an average person can perform with little or no difficulty, such as walking, hearing, speaking, learning, breathing, standing, lifting, seeing and working. Appendix to 29 C.F.R. § 1630.2(I); see Bruncko v. Mercy Hosp., 260 F.3d 939, 941 (8th Cir. 2001); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723-727, n. 7 (5th Cir. 1995); Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 1994), cert. denied, 513 U.S. 810 (1994) ( Rehabilitation Act). Major life activities also include caring for oneself, eating, concentrating, thinking, and sleeping. See 42 U.S.C. § 12102(2)(A). As for the "regarded as" component for disability,
While Pollard and some of the other cases cited herein are from prior to 2009, Congress made substantial changes to the ADA through the ADA Amendments Act of 2008 ("ADAAA"), which had an effective date of January 1, 2009. "The ADAAA was intended to clarify congressional intent with respect to the original ADA, as well as to overturn certain United States Supreme Court cases that had narrowed the ADA's scope;" Ryan v. Columbus Regional Healthcare System, Inc., No. 10-234, 2012 WL 1230234 at * 3 (E.D.N.C. Apr. 12, 2012); and under the ADAAA, "[t]he definition of disability . . . shall be construed in favor of broad coverage of individuals . . . , to the maximum extent permitted by the terms of this chapter." 42 U.S.C. § 12102(4)(A). Further, "[t]he primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA." 29 C.F.R. § 1630.1 (2011). Since Plaintiff lost his job in May 2016, these amendments apply to his ADA claims. Therefore, although some of the cases cited herein relating to general ADA definitions pre-date 2009, the undersigned has nonetheless considered Plaintiff's claim pursuant to the ADAAA's enhanced standard.
See Hooven-Lewis v. Caldera, 249 F.3d 259, 268 (4th Cir. 2001) [same standards apply to ADA and Rehabilitation Act]; Smaw v. Commonwealth of Virginia Department of State Police, 862 F.Supp. 1469, 1474 (E.D.Va. 1994) [same].
[p]rior to Congress' passage of the ADA Amendment Act of 2008, Pub. L. No. 110-325, § 2(b)(1)-(6), 122 Stat. 3553 (2008) ("ADAAA"), there were two ways in which a person could be regarded as being disabled: "(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities."Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). However, with the passage of the ADAAA, which became effective January 1, 2009 and overruled Sutton,"[a]n individual meets the requirement of 'being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived . . . impairment whether or not the impairment limits or is perceived to limit a major life activity." 42 U.S.C. §12102(3)(A).Mohney v. Pennsylvania, 809 F.Supp.2d 384, 400 n. 14 (W.D.Pa. 2011).
However, Plaintiff's ADA claim for failure to accommodate cannot proceed under the "regarded as" criteria, since the failure to provide a "reasonable accommodation" to any employee whom the employer merely regards as disabled is not a claim covered under the ADAAA. See 42 U.S.C. § 12201(h)[emphasis added]; Fulp v. Columbiana Hi Tech, LLC, No. 16-1169, 2018 WL 1027159, at * 10 (M.D.N.C. Feb. 21, 2018)[same]. Therefore, Plaintiff may only proceed by either showing he has a) a physical or mental impairment that substantially limits one or more of his major life activities, or b) a record of such impairment.
Plaintiff contends that as a result of his December 2015 accident, he has weakness on his left side and that he can do very little bending, stooping, walking, and standing. See Plaintiff's Deposition, p. 67. Plaintiff further contends that Dr. Buncher corroborated his limitations in the work status form with return to work restrictions starting on March 3, 2016. As noted, the restrictions on this form include left hand work only, no lifting, no repeated bending/stooping, and no continual standing/walking/sitting/chairs. See Court Docket No. 24-2, p. 2. No indication is given on the form as to whether these were temporary or permanent restrictions, and when Plaintiff was asked in his deposition if "Dr. Woodward" told him whether these restrictions were temporary or permanent, Plaintiff testified that he did not remember. He did testify that his injury still bothers him on his left-hand side and that his left arm is very weak along with his shoulder and neck. See Plaintiff's Deposition, pp. 53-54. However, the evidence shows that on February 22, 2017, Plaintiff completed a post-employment medical questionnaire with H&J Contracting of SC, LLC, which had numerous inquiries including, but not limited to, a series of questions, including, but not limited to: "Any permanent physical condition which constitutes a 20% impairment of a member or of the body as a whole? Any injury, operation or any disability not mentioned in the above questions, one or more back injuries or a disease process resulting in disability over a total of 120 days?", to which Plaintiff responded "no". In addition, in response to the question: "Do you have or have you ever had" a variety of cited injuries or medical conditions, the only injuries Plaintiff listed were "military injury/healed". He also stated that he had no permanent physical impairments as a result of any prior industrial accident. See Court Docket No. 24-18. Therefore, the evidence reflects that Plaintiff himself represented that he did not have any permanent injuries or impairment.
But see, n. 5, supra.
See n. 4, supra. The parties are apparently unsure of whether Dr. Buncher or Dr. Woodward was the physician who filled out this form, although the parties generally refer to it as having been completed by Dr. Buncher.
In arguing that Plaintiff did not have a "disability" under the statute, Defendant relies heavily on the Fourth Circuit's holding in Reynolds v. American Nat'l Red Cross, 701 F.3d 143 (4th Cir. 2012), where the Plaintiff, who had a fifteen pound weight limitation, was found not to be under a disability. However, the Defendant acknowledges that the Reynolds Court found that the ADAAA was not retroactive, and that Plaintiff Reynolds' determination of non-disability was under the pre-ADAAA standards. See Defendant's Memorandum in Support of Summary Judgment, p. 9. As was previously noted,
Although the Defendant also discusses the Fourth Circuit's observation in Reynolds that Plaintiff's claim of disability would fail even if the ADAAA standards were applied, the Plaintiff in Reynolds was restricted to a fifteen (15) pound lifting restriction, while the Plaintiff here had a no lifting restriction. These facts distinguish Plaintiff's claim from the Plaintiff in Reynolds under the ADAAA standards. See discussion, infra.
The ADAAA . . . was enacted "with the explicit purpose of broadening the protections of the [ADA] and rejecting certain Supreme Court law interpreting the ADA's definition of disability." Marsh v. Terra Int'l (Oklahoma), Inc., 122 F. Supp. 3d 1267, 1276-77 (N.D. Okla. 2015) (citing Pub.L. No. 110-325, 122 Stat. 3553); see Crowell [v. Denver Health and Hosp. Authority], 572 Fed. Appx. [650,] 658 [(10th Cir. 2014)](quoting 42 U.S.C. § 12102(4)(A) ) which states that "[t]he definition of disability in this chapter shall be construed in favor of broad coverage...to the maximum extent permitted by the terms of this chapter"); see Carter [v. Pathfinder Energy Servs. Inc.], 662 F.3d [1134,] 1144 [(10th Cir. 2011)]("Congress amended the ADA in 2008 to correct what it viewed as an overly restrictive interpretation of the statute's terms that had been adopted by the Supreme Court in [Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) ].") (internal quotation marks omitted); Allen v. SouthCrest Hosp., 455 Fed. Appx. 827, 834 (10th Cir. 2011) (discussing the "more favorable definition of disability as clarified by the [ADAAA] and applied in the new regulations promulgated under the ADAAA"). As to the "substantial limitation" requirement, the ADAAA "created a broader definition of disability to protect more individuals, by...directing courts to interpret 'substantial limitation' broadly in favor
of coverage." Smothers v. Solvay Chem., Inc., 740 F.3d 530, 545 n.16 (10th Cir. 2014).Austin v. Children's Hosp. Colorado, No. 17-02491, 2018 WL 6571372, at *9-10 (D. Colo. Dec. 13, 2018); see also Kemp v. JHM Enterprises, Inc., No. 14-2604, 2016 WL 859361, at **3-4 (D.S.C. Mar. 7, 2016)[discussing the ADAAA substantially broaden the definition of "disability" under the law]. Furthermore,
. . .
"[S]ome courts have found that, post-ADAAA, comparable temporary impairments do constitute disabilities." Id. Other decisions reflect this fact. See e.g., Henson v. Amerigas Propane, Inc., No. 15-163, 2016 WL 3190220, at *4 (E.D. Okla. June 7, 2016), aff'd, 681 F. App'x 697 (10th Cir. 2017) (declining to grant summary judgment for defendant on the argument that plaintiff's "non-severe, temporary" hand injury was not substantially limiting); Summers v. Altarum Inst., Corp., 740 F.3d 325, 330-31 (4th Cir. 2014) (holding that a temporary impairment can be substantially limiting); Miller v. Coca-Cola Refreshments USA, Inc., 2018 WL 1456502, *11 (W.D. Pa. 2018) (finding lifting restriction for three months to be substantially limiting); Bob-Maunuel v. Chipotle Mexican Grill, Inc., 10 F. Supp. 3d 854, 881 (N.D. Ill. 2014) (finding plaintiff's hernia to be substantially limiting although temporary); Vanhorn v. Hana Grp., Inc., 979 F. Supp. 2d 1083, 1093-94 (D. Haw. 2013) (collecting cases that found a genuine issue of material fact on the issue of disability where the impairment was of short duration).
In this case, the Court must ultimately be mindful that the term "substantially limits" is not meant to be a demanding standard and, whether that standard is met, is ordinarily a question of fact for the jury. See Crowell, 572 F. App'x at 658; Sanchez [v. Vilsack], 695 F.3d [1174,] 1178 [(10th Cir. 2012)].
the EEOC revised regulations interpreting substantial limitations as well, noting that "[t]he term 'substantially limits' shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA" and that the term "is not meant to be a demanding standard." 29 C.F.R. § 1630.2(j)(1)(i). Elsewhere, the regulations specifically address whether temporary limitations could be "substantial" for purposes of disability. 29 C.F.R. Pt. 1630, App. § 1630.2(j)(1)(ix). These regulations provide that the "duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity." Id. App. § 1630.2(j)(1)(ix). Furthermore, although "impairments that last only for a short period of time are typically not covered ... they may be covered if sufficiently severe." Id. As an example of a "sufficiently severe"
temporary impairment, the regulations provide that, "if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability." Id.Bray v. Town of Wake Forest, No. 5:14-CV-276-FL, 2015 WL 1534515, at *9 (E.D.N.C. Apr. 6, 2015); see also Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 76 FR 16978-01 ["[A]n impairment does not have to last for more than six months in order to be considered substantially limiting under the first or the second prong of the definition of disability. For example, as noted above, if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability. At the same time, "[t]he duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity."]; Gardea v. JBS USA LLC, No. 15-474, 2017 WL 5904675, at * 4 (S.D.Iowa May 11, 2017)[Finding lifting restriction in that case constituted a disability under the facts of that case].
Based on the applicable case law, the undersigned cannot find as a matter of law that Plaintiff fails to meet the statutory definition of a "disability" where his treating physician opined that had a no lifting restriction, could perform only left hand work, no repeated bending/stooping, and no continual standing/walking/sitting/chairs. See Court Docket No. 224-2, p. 2. See Austin, 2018 WL 6571372, at * 9-10 [Finding that whether an impairment "substantially limits" a claimant is ordinarily a question of fact for the jury]. Accordingly, based on the revised standard under the ADAAA and the no lifting restriction along with the other medical restrictions placed on the Plaintiff, the undersigned finds that even if Plaintiff's condition was only temporary, he has met his burden of establishing he had a "disability" for purposes of summary judgment. Summers, 740 F.3d at 330-331 [Holding that even a temporary impairment can be substantially limiting].
With regard to the second prong of the accommodation prima facie case, Jennie Blanton attests that Plaintiff never provided any information to the Defendant, either orally or in writing, that he had any physical or mental condition constituting a disability either before or after his accident. Specifically, Ms. Blanton attests that at no time following the accident did Plaintiff provide her or the Defendant with any information, written or oral, showing that restrictions had been placed upon his work activities by any physician or medical provider. Ms. Blanton also attests that Plaintiff never told her that he needed an accommodation as a result of any physical or mental disability, nor does she have any information to show that Plaintiff ever made any owner, officer, manager, supervisor, or co-worker of the Defendant aware that he either wanted or needed an accommodation for a purported disability. See Jennie Blanton Affidavit, ¶¶ 4-6, 10.
In fact, Ms. Blanton attests that when Plaintiff filed a worker's compensation claim after his separation from employment with the Defendant, they still had not seen or been provided with any medical records. Rather, they were able to see Plaintiff's medical records and physician notes only after Plaintiff filed this lawsuit against the Defendant and their attorney was then able to obtain Plaintiff's medical records by subpoena. See Jennie Blanton Affidavit, ¶¶ 10-11.
For his part, although Plaintiff does not himself assert that he provided any information regarding his limitations to the Defendant in writing, he does contend that he orally informed both Jenny Blanton and Brian Blanton about the restrictions on his ability to work from the March 2016 document from Dr. Buncher (or Woodward) and orally requested an accommodation in the form of labor help from operators and laborers. See Plaintiff's Deposition, pp. 56-57. Plaintiff further testified that, the next day, he reminded his project manager, who he thinks was named Mike, about his physical situation, and that Mike responded that if he complained any more he would be fired. See Plaintiff's Deposition, pp. 60-61.
However, when asked if he was even aware of Plaintiff being injured in a car wreck, Michael Murray, presumably the person who Plaintiff was referring to as "Mike", testified that he may have overheard someone talking about it in the hallway, but that he had no direct knowledge about it. See Murray Deposition, p. 13. In Defendant's reply memorandum, Defendant states quotes from Murray's deposition where he testifies that he also was not a manager and had no control over the Plaintiff. See Defendant's Reply Memorandum, p. 6. Although these deposition pages do not appear to be in the record, they are not necessary to resolve this issue since Plaintiff also testified that he communicated his limitations to Brian and Jennie Blanton. See discussion, infra.
In sum, although the Defendant denies it had any notice of Plaintiff's alleged impairments, the evidence, viewed in the light most favorable to the Plaintiff, is that he told both Jenny and Brian Blanton about the restrictions set forth in the March 3, 2016 medical form, and that he needed an accommodation consisting of additional labor and workers being assigned to him due to his restrictions. See Plaintiff's Deposition, pp. 56-57. In addition, although not referenced by the parties, the undersigned also notes that in a text exchange between Brian Blanton and the Plaintiff on May 25, 2016 at 6:44 (a.m.), the day prior to the second accident, Plaintiff texted Brian as follows:
"Got site open for guys VA and a MRI later they usually dope me. Can't stand all that alien noise vibration and feels like it's pulling all the metal out of your blood."The Plaintiff then sent another text at 11:10 (a.m.) which stated:
It's 1109, back from mri got enough valium in me to write a rock song. Be at site before chickens tomorrow.See Court Docket No. 24-20, p. 6. This text exchange indicates that Brian Blanton had knowledge of Plaintiff obtaining an MRI, providing additional support for Plaintiff's claim that the Defendant knew, to at least some extent, that he was having physical difficulties. Therefore, viewing the evidence in the light most favorable to the Plaintiff, Plaintiff has satisfied the second prong of his accommodation prima facie case for purposes of summary judgment.
Neither party submitted medical records from May 25, 2016. Therefore, there is no medical evidence in the record of what transpired on that date other than Plaintiff's text message about going for an MRI. The last medical records submitted by the parties were from April 2016. See Court Docket No. 24-15.
With regard to the third prong, Plaintiff testified that his duties primarily consisted of material ordering, crew supervision, and implementation of assignments. However, Plaintiff also testified that while he was employed by the Defendant, he was able to do "everything. Absolutely everything" at "all times" during his employment, with no qualification or limitation in this testimony for the period after the December 2015 accident. See Plaintiff's Deposition, p. 97. Indeed, it is undisputed in the evidence that Plaintiff continued to work in his regular job (according to the Plaintiff, without having received any accommodations for any disability) up until the time he left the Defendant's employ in May, 2016. Accordingly, Plaintiff's failure to accommodate claim necessarily fails because he testified that he was able to do everything required by his job at "all times" during his employment with the Defendant despite the Defendant's alleged failure to provide him with the accommodations that he claims he sought. See Hooper v. Proctor Health Care, Inc., 804 F.3d 846 (7th Cir. 2015)[Finding that where "the employee's limitations do not affect her ability to perform those essential functions, the employer's duty to accommodate is not implicated."](quoting Brumfield v. City of Chicago, 735 F.3d 619, 633 (7th Cir. 2013)[a plaintiff cannot state a failure to accommodate claim if he is able to perform all essential functions of his job without regard to his physical or mental limitations]. Since Plaintiff has not shown in the evidence any essential function of his job that he did not or could not perform following the December 2015 accident, while instead testifying that he was able to, and did, continue to perform all of the essential functions of his job, he has failed to establish a genuine issue of fact with respect to his accommodation claim.
Furthermore, even assuming arguendo that the evidence had shown that Plaintiff could not perform an essential function of his job (a finding which the undersigned expressly does not make based on the evidence provided), he has not shown any reasonable accommodation which the Defendant refused to offer. The only accommodation Plaintiff states he sought was to not have to perform certain tasks and to be assigned more laborers to perform these tasks that he normally performed. However, Plaintiff provides no details about this alleged request, nor has he provided any argument for how requesting that other employees take on additional responsibilities, even assuming that they were available to do so, would be a reasonable accommodation under the law. Cf. Tidwell v. IMPAQ Int'l, LLC, No. 16-421, 2017 WL 121771, at *4 (D. Md. Jan. 12, 2017)(citing Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995)["An accommodation that would result in other employees having to worker [sic] harder or longer hours is not required."]); Lucarelli v Conrail, 2002 U. S. Dist. LEXIS 12201, at * 29 ["Employers are not . . . required to assign existing employees . . . to perform the essential functions of an employee's job which he . . . cannot perform because of an impairment"]. Accordingly, with respect to the third prong of his prima facie case, he has also failed to present evidence to show that he even requested a reasonable accommodation. Tyndall v. National Educ. Center, Inc., of California, 31 F.3d 209, 213 (4th Cir. 1994) [The employee bears the burden of showing that he could perform the job's essential functions with a reasonable accommodation]; see Shin v. Univ. of Md. Med. Sys. Corp., 369 Fed.Appx. 472, 481 (4th Cir. 2010) [Plaintiff "bears the burden of identifying an accommodation that would allow a qualified individual to perform the job, as well as the ultimate burden of persuasion with respect to demonstrating such an accommodation is reasonable."].
Specifically, Plaintiff testified that he asked not to have to handle the physical duties that he could not, and to have additional employees assigned for that purpose. Plaintiff's Deposition, pp. 55-56, 97. However, he provides no details of who was available or how this could be accomplished as a reasonable accommodation, nor has he argued that there was any other position available for which he was qualified, or that (even if so) that would have been a reasonable accommodation. Cf. Domek v. Schafer, No. 07-1469, 2008 WL 2312730 at * 5 (D.Md. May 29, 2008)[holding that an employer is not required to reassign an individual to a position for which he is not qualified to accommodate the individual's disability]; Prioleau v. Potter, No. 05-2331, 2007 WL 2688608 at * 5 (D.S.C. Sept. 10, 2007)[holding that employer has no duty to create a position matching an employee's qualifications to accommodate the employee's disability](addressing § 504 of the Rehabilitation Act of 1973); Riley v. Weyerhaeuser Paper Co., 898 F.Supp. 324, 327 (W.D.N.C. 1995) [Employer "is not required to reassign a disabled person to a vacant position unless the disabled employee is qualified for that position"]; see also Lamb v. Qualex, Inc., 33 Fed. Appx. 49, 59 (4th Cir. Apr. 3, 2002) ["The ADA does not . . . require an employer to create a new position as an accommodation to a disabled employee."].
In addition, even if Plaintiff could establish a genuine issue of fact with respect to the third prong of his prima facie case, the Defendant correctly notes that Plaintiff has failed to present evidence sufficient to establish a genuine issue of fact with respect to the fourth element of his accommodation prima facie case, and that it is therefore also entitled to summary judgment on that basis. Although the Defendant contends that Plaintiff never even requested an accommodation for any alleged disability, even assuming for purposes of summary judgment that he did, as discussed in the third prong, not requiring the Plaintiff to himself perform the full range of his job requirements, thereby shifting at least some of Plaintiff's duties to other employees, is not a viable or required accommodation. Irving v. Chester Water Authority, No. 08-5156, 2010 WL 2512370, at * 5 (E.D.Pa. June 17, 2010) ["Employers] are not required to shift responsibilities to other employees in order to comply with the reasonable accommodation requirement"]; cf. Lombardo v. Air Products & Chems., Inc., No. 05-1120, 2006 U. S. Dist. LEXIS 46077, at * 38 (E.D.Pa. July 7, 2006) [Finding that lifting was an essential function of the warehouse positions occupied by the plaintiff, and that reassigning those tasks to other employees was not required as a reasonable accommodation under the ADA]; see also Hall v United States Postal Service, 857 F.2d 1073, 1078 (6th Cir. 1988) ["An accommodation that eliminates an essential function of the job is not reasonable"]; Barber v. Columbia Coll., No. 05-3405, 2007 WL 2891657 at * 3 (D.S.C. Sept. 28, 2007) [holding that the duty to provide a reasonable accommodation does "not require [the employer] to relieve [the employee] of any of the essential physical demands of her position . . . . "].
Finally, the undersigned also recognizes that "[t]he ADA imposes upon employers a good faith duty to engage with their employee in an interactive process to identify a reasonable accommodation." Clark v. Sch. Dist. Five of Lexington & Richland Ctys., 247 F. Supp. 3d 734 (D.S.C. 2017)(quoting Jacobs v. North Carolina Administrative Office of Courts, 780 F.3d 562, 581 (4th Cir. 2015)). However, there is documentary evidence in the record that indicates that Plaintiff was the one who failed to effectively communicate with the Defendant about his leaving the Defendant's employ, not the other way around. See Court Docket No. 24-20, p. 11 (bottom). However, even if (for purposes of summary judgment) Plaintiff's testimony that he asked for an accommodation for a disability is accepted as true,
the interactive process "is not an end in itself; rather it is a means for determining what reasonable accommodations are available to allow a disabled individual to perform the essential job functions of the position sought." Wilson v. Dollar Gen.
Corp., 717 F.3d 337, 347 (4th Cir. 2013). "Liability for failure to engage in an interactive process depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the disabled person to perform the job's essential functions." Id. An employee must demonstrate that the employer's "failure to engage in the interactive process resulted in the failure to identify an appropriate accommodation for the disabled employee." Crabill [v. Charlotte Macklenburg Bd. of Educ.], 423 Fed.Appx. [314], 323 [4th Cir. 2011].Clark, 247 F. Supp.3d 734 at * 9 (D.S.C. 2017). Here, even crediting Plaintiff's testimony that he sought an accommodation and that the Defendant failed to engage in an interactive process and assigned Plaintiff to more taxing jobs, he has still presented no evidence that he requested a reasonable accommodation that would have enabled him to perform his job's essential functions (assuming arguendo that, notwithstanding his own testimony that he was able to perform "absolutely everything" required of him at "all times", Plaintiff had shown that he could not perform the essential functions of his job without an accommodation) with his limitations. See Shin, 369 Fed.Appx. at 481 [Plaintiff "bears the burden of identifying an accommodation that would allow a qualified individual to perform the job, as well as the ultimate burden of persuasion with respect to demonstrating such an accommodation is reasonable."].
Plaintiff has failed to establish his prima facie case of failure to accommodate under the ADA, because he has failed to present evidence sufficient create a genuine issue of fact that he needed an accommodation to complete the essential functions of his job, that he requested a reasonable accommodation, or that the Defendant failed to accommodate him with a reasonable accommodation. Baber, 977 F.2d at 874-875 [Once the moving party provides evidence that judgment on the pleadings is appropriate, to survive summary judgment the party opposing the motion must submit evidence to establish there is a genuine issue of fact for trial]. Therefore, the Defendant is entitled to summary judgment on this claim.
II.
ADA Retaliation Claim
Plaintiff has also asserted an ADA retaliation claim under § 503(a) of the ADA, 42 U.S.C. § 12203(a), which provides as follows:
No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.Retaliation cases under the ADA are subject to the same requirements of proof as are applicable to Title VII disparate treatment claims. Ross v. Communications Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985); see also Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989).
Under this proof scheme, the employee is initially required to establish a prima facie case of retaliation by a preponderance of the evidence. This prima facie case consists of three elements: (1) the employee engaged in protected activity; (2) the employer took adverse employment action against the employee; and (3) a causal connection exists between the protected activity and the adverse action. Reynolds v. American Nat'l Red Cross, 701 F.3d 143, 154 (4th Cir. 2012)[ADA claim]; Freilich v. Upper Chesapeake Health, Inc Co., 313 F.3d 205, 216 (4th Cir. 2005); Harmer v. Virginia Elec. and Power Co., 831 F.Supp. 1300, 1308 (E.D.Va. 1993). Once a prima facie case has been presented, the Defendant employer has the burden of producing a legitimate, non-discriminatory reason for its actions. If the employer can produce a legitimate, non-discriminatory reason for its actions, the employee must then demonstrate that the Defendant's proffered reason is pretextural. Harmer, 831 F.Supp. at 1308; see also Graves v. Bank of America, 54 F.Supp.3d 434, 443 (M.D.N.C. 2014).
Defendant initially argues that Plaintiff's retaliation claim should be dismissed because Plaintiff has failed to establish his prima facie case, and the undersigned agrees. Plaintiff argues that he engaged in protected activity by notifying the Defendant he had a disability and requesting a reasonable accommodation. Plaintiff's Deposition, pp. 56-57. See Solomon v. Vilsack, 763 F.3d 1, 15 n. 6 (D.C.Cir. 2014)[citing rulings from every federal judicial circuit that requests for reasonable accommodations are protected activity]; see also Defendant's Memorandum in Support of Summary Judgment, p. 14. Based on this testimony, and for purposes of summary judgment only, the Defendant has not challenged Plaintiff's assertion that he meets the first prong of his prima facie case.
However, as previously discussed, the Defendant does dispute that it received notice of Plaintiff's disability and/or his request for accommodation.
Plaintiff next contends that he suffered an adverse action when the Defendant terminated him on or about May 19, 2016. Although the Defendant contends that Plaintiff voluntarily resigned due to not wanting to take a drug test after he was involved in an accident while driving the Defendant's machinery, as this is a factual dispute, the undersigned has assumed for purposes of summary judgment that Plaintiff's evidence is sufficient to meet this second prong. See discussion, supra.
However, even assuming Plaintiff can demonstrate that he engaged in protected activity by requesting an accommodation and that he thereafter suffered an adverse action by being terminated, he has provided no evidence to establish a causal connection between his alleged request for an accommodation in March 2016 and his alleged termination in May 2016. Dowe v. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998) [Plaintiff "must have evidence from which a reasonable factfinder could conclude that a causal connection exists between the protected activity and the adverse action(s)"]; see also Cecilino v. Allstate Ins. Co., 908 F.Supp. 519, 532 (N.D.Ill. 1995) [a simple showing that an adverse action occurred after a complaint of discrimination 'is not even enough to make out a prima facie case of retaliation, let alone to survive a motion for summary judgment.']. The evidence shows that Plaintiff continued working and fully performing his duties for the Defendant even after the accident in December 2015 up until the time he left the Defendant's employ. See Jennie Blanton Affidavit, ¶¶ 12-13; Plaintiff's Deposition, pp. 97-98. It is also uncontested that Plaintiff continued working in his job after Plaintiff claims he requested accommodation for a disability in March 2016, up until May 27, 2016, when Plaintiff ran into a company truck with a backhoe. After this accident Plaintiff was asked to take a urine test pursuant to the Defendant's company policy, and he refused to do so. See Jennie Blanton Affidavit, ¶¶ 12-13 & Exhibit D; Plaintiff's Deposition, p. 71 [See Court Docket No. 24-19, p. 71]. Instead, Plaintiff sent a text message to Brian Blanton which stated in the relevant section, "I AINT going back to the pen for 'narcotics" I AINT getted screwed for MRI and VA crap. Sorry brother, just got way more to (sic) loose than most as a felon with multiple ABHAN's and VA feds with their anti social behavioral BS. . . ." See Court Docket No. 24-20, p. 8. When Brian Blanton then texted Plaintiff asking if he had taken the drug test, he did not receive a response. Brian then texted Plaintiff the following day that "I'm assuming you quit since you didn't show up today?", to which Plaintiff responded that he was at his weekend job and asked if he could return certain things the following day. After Brian responded that no one would be there the next day, Plaintiff stated that he would be there soon and inquired about calculation of hours accumulated for sick leave. Brian texted back that the "payroll department will buy back your leave." See Court Docket No. 24-20, p. 9.
As noted, the Defendant's drug policy, which Plaintiff signed, includes a provision that employees are required to undergo drug abuse urinalysis when involved in an on the job accident. See Court Docket No. 24-21, p. 9.
These text messages cast substantial doubt on Plaintiff's claim that he was at some point (Plaintiff testified he does not remember exactly when) in Jennie Blanton's office, where she terminated him. However, even assuming Plaintiff's testimony on this point to be true for purposes of summary judgment, this record nonetheless shows that Plaintiff's employment ended because of his refusal to take a drug test following his accident, not because of any unlawful retaliation for having asked for an accommodation for a disability several month earlier. Dowe , 145 F.3d at 657 [Plaintiff "must have evidence from which a reasonable factfinder could conclude that a causal connection exists between the protected activity and the adverse action(s)"]; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ["Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."]; House v. New Castle County, 824 F.Supp. 477, 485 (D.Md. 1993) [Plaintiff's conclusory allegations insufficient to maintain claim]. Accordingly, Plaintiff fails to meet the third prong of the prima facie case.
Although Plaintiff testified that "Mike" told him at some point after he requested accommodations that he would be fired if he continued to complain [Plaintiff's Deposition, pp. 60-61], Plaintiff has not presented any evidence to show that Mike, who the Defendant contends had no supervisory authority over Plaintiff in any event, was involved in any way in Plaintiff's employment with the Defendant coming to an end.
Moreover, even if Plaintiff could establish a prima facie case, the evidence clearly establishes that the Defendant had a legitimate, non-discriminatory reason for Plaintiff being required to take the drug test. Therefore, even assuming that Plaintiff was terminated or constructively discharged as he alleges, the Defendant has clearly shown a non-discriminatory reason for Plaintiff's termination based on his refusal to take a drug test after being involved in an at-fault accident. See discussion, supra. See also EEOC v. Clay Printing Co., 955 F.2d 936, 941 (4th Cir. 1991) [The defendant's burden of establishing a legitimate, non-discriminatory reason is only one of production, not of persuasion]. Therefore, to survive summary judgment on his retaliation claim, Plaintiff must have evidence of pretext in the Defendant's decision to allegedly terminate him, and in order to show pretext Plaintiff must have evidence sufficient to create a genuine issue of fact that "but for" the Defendant's intent to retaliate against him because he engaged in protected activity, he would not have been removed from his position or terminated. EEOC, 955 F.2d at 941; Melendez v. Board of Education for Montgomery County, ___ Fed.Appx. ___, 2017 WL 4512169 at * 3 (4th Cir. Oct. 10, 2017) [Retaliation claims are proved according to traditional principles of but-for causation.]; Conkwright v. Westinghouse Elec. Corp., 933 F.2d 231, 234-235 (4th Cir. 1991). "Direct or indirect evidence of discriminatory motive may do, but 'the evidence as a whole... must be sufficient for a reasonable fact-finder to infer that the employer's decision was motivated by [retaliatory animus].'" LeBlanc v. Great American Insurance Co., 6 F.3d 836, 843 (1st Cir. 1993)(citing Goldman v. First Nat'l Bank, 985 F.2d 1113, 1117 (1st Cir. 1993)(quoting Connell v. Bank of Boston, 924 F.2d 1169, 1172, n. 3 (1st Cir. 1991), cert. denied, 111 S.Ct. 2828 (1991)); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-143 (2000).
Plaintiff has presented no evidence with respect to the question of pretext to show that the Defendant's legitimate, non-discriminatory reason was false, or that the real reason the Defendant required him to take a drug test and then (allegedly) terminated him was not because of Plaintiff's accident and his refusal to comply with the Defendant's drug policy, but was instead because it was retaliating against him for having requested an accommodation for his disability. Sullivan v. River Valley School District, 197 F.3d 804, 815 (6th Cir. 1999), cert. denied, 530 U.S. 1262 (2000) ["Without a showing that those other reasons were discriminatory, [Plaintiff] cannot establish a prima facie case for relief....]. The mere fact that Plaintiff engaged in protected activity does not immunize him from actions by his employer which may otherwise be justified by his work record or performance; Ross, 759 F.2d at 366 ["[The ADA] serves the laudable goal of protecting employee access to agencies and courts. It does not shield employees from normal sanctions for misconduct."]; Bodoy v. North Arundel Hospital, 945 F.Supp. 890, 898 (D.Md. 1996); and since Plaintiff has offered no evidence to show that being asked to take a drug test and then being terminated (Plaintiff's claim) after he refused were the result of unlawful retaliation, other than his own subjective belief and speculation, his retaliation claim should be dismissed. Rucker v. Greenville Co. Sheriff Dep't., No. 10-1533, 2012 WL 951789, * 2 (D.S.C. March 20, 2012) [Conclusory allegation or denials, without more, are insufficient to preclude the granting of a summary judgment motion]; Palermo v. Clinton, No. 11-1958, 2012 WL 169125 at * 2 (7th Cir. Jan. 20, 2012) [Suspicious timing alone generally not enough to create a triable issue retaliation case]; Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) [Plaintiff may not "create a genuine issue of fact through mere speculation or the building of one inference upon another"].
Therefore, Plaintiff having failed to establish a genuine issue of fact with respect to this essential element of his ADA retaliation claim, this claim should be dismissed. Dowe, 145 F.3d at 657 [Plaintiff must proffer evidence sufficient to create a genuine issue of fact that his employer "[took] the adverse employment action[s] because [he] engaged in a protected activity."]; Cf. Rudolph v. Hechinger, 884 F.Supp. 184, 188 (D.Md. 1995) ["[The ADA] does not protect against unfair business decisions - only against decisions motivated by unlawful animus"], citing Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1257 (5th Cir. 1977); Baber, 977 F.2d at 574-875 [Once the moving party submits evidence showing entitlement to summary judgment, to avoid summary judgment the party opposing the motion must respond with specific facts showing there is a genuine issue for trial].
Conclusion
Based on the foregoing, it is recommended that the Defendant's motion for summary judgment be granted, and that this case be dismissed.
The parties are referred to the Notice Page attached hereto.
/s/_________
Bristow Marchant
United States Magistrate Judge March 1, 2019
Charleston, South Carolina
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).