United States District Court, D. South Carolina, Columbia Division
Boykin K. Bell, Plaintiff,
Alion Science and Technology Corporation, Defendant.
REPORT AND RECOMMENDATION
V. Hodges Columbia, South Carolina United States Magistrate
employment discrimination case, Boykin K. Bell
(“Plaintiff”) sues his former employer, Alion
Science and Technology Corporation (“Defendant”).
Plaintiff filed his complaint in the Sumter County Court of
Common Pleas on August 17, 2015 [ECF No. 1-1 at 4], and filed
an amended complaint (“Complaint”) on September
23, 2015 [ECF No 1-1 at 11]. Defendant timely removed the
case on October 23, 2015. [ECF No. 1]. In the Complaint,
Plaintiff alleges the following causes of action: (1) failure
to accommodate and wrongful discharge in violation of the
Americans with Disabilities Act, 42 U.S.C. §12101,
et seq., as amended (“ADA”); (2)
violation of the Family and Medical Leave Act, 29 U.S.C.
§2601, et seq. (“FMLA”); and (3)
breach of contract. [ECF No. 1-1 at 11-17]. This matter comes
before the court on Defendant's motion for summary
judgment. [ECF No. 16]. This matter having been fully briefed
[ECF Nos. 17, 19], it is ripe for disposition.
pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.).
Because the motion for summary judgment is dispositive, this
report and recommendation is entered for the district
judge's consideration. For the reasons that follow, the
undersigned recommends the district judge grant in part and
deny in part Defendant's motion for summary judgment.
is a type-II diabetic and was initially diagnosed in 2004 or
2005. Pl. Dep. 20:9-12. Plaintiff takes medication for his
type-II diabetes. Id. at 23:9-19. He has never been
hospitalized or visited an emergency room related to his
diabetes. Id. at 77:23-78:2. Once he was diagnosed,
his physician prescribed medication that alleviated his
symptoms. Id. at 78:3-15.
is a career journalist and professional writer. Id.
at 29:24-33:15. Defendant is a government contractor formerly
assigned to document and write the history of the United
States Air Forces Central Command (“AFCENT”)
headquartered at Shaw Air Force Base in Sumter, South
Carolina. Id. at 33:24-34:15. Despite Plaintiff
having had no prior military experience, Defendant hired him
as a military analyst in early 2009 working with its
“History Team.” Pl. Aff. ¶¶
As a military analyst, inter alia, Plaintiff worked
“under the direct supervision of a project, program,
and/or division manager, or more senior analyst, and within
the scope of work derived from a contract with a government
customer . . . .” [ECF No. 16-3 at 2].
Bob Flury was Plaintiff's direct supervisor. Pl. Dep.
40:2-4. In 2011, Project Lead and Senior Military Analyst
Michael Gartland became Plaintiff's direct supervisor.
Id. at 40:7-19. Gartland reported to Project Manager
Joseph Waldron. Id. Waldron reported to Program
Manager Hugh Cameron, who was Defendant's liaison with
AFCENT. Id. Plaintiff and others referred to a
Department of Defense employee named Kathi Jones as
Defendant's customer. Id. at 35:6-9, 41:9-13.
responsibilities included “assuring quality control
throughout all contract activities” and demonstrating
“superior writing and presentation skills to develop
briefings, documents, papers, conceptual, and analytical
reports for clients.” [ECF No. 16-3 at 3]. The main job
of the History Team was to complete a classified annual
written report recording information received from the field,
including the AFCENT periodic history using documents from
numerous sources. Jones Aff. ¶ 2. The periodic
history was “a combined effort” of Gartland, John
Harrill, and Plaintiff. Id. at 1, 4; Pl. Aff. ¶
2; Pl. Dep. 152:2-7. The authors of the specific portions of
a final document were not identified or identifiable.
was evaluated every fiscal year, which ran October 1 through
September 30. [ECF Nos. 17-6 to 17-10]. Under Flury,
Plaintiff's evaluations in 2009 were “exceeds
expectations” and in 2010 were “fully
satisfactory” on the five categories ratings listed and
overall. [ECF Nos. 17-6, 17-7].
Plaintiff did not fare as well under Garland. Garland rated
Plaintiff in his 2011 evaluation with two “needs
improvement, ” two “fully satisfactory, ”
and one “exceeds expectations, ” with an overall
rating of “needs improvement.” [ECF No. 17-8 at
2-5]. On October 25, 2011, Plaintiff was placed
on a 90-day performance improvement plan (“PIP”).
[ECF No. 16-3 at 17-18; Pl. Dep. 130:22-133:12]. Plaintiff
claims Garland told him his writing “lacked
analysis.” Pl. Aff. ¶ 4. Having had no military
experience, Plaintiff subsequently learned from Gartland
there were classified sources he could and should have been
using in his writing, and he began using those sources. Pl.
Dep. 133:24-137:1. On January 25, 2012, Plaintiff's PIP
was extended for another 90 days.Pl. Dep. 137:16-138:1.
Plaintiff completed his continued PIP in April 2012, Garland
states that he found Plaintiff's “overall
performance continued to be sub-standard.” Gartland
Decl. ¶ 8.Nevertheless, Garland rated Plaintiff in
his 2012 evaluation with three “fully
satisfactory” and two “exceeds expectations,
” with an overall rating of “fully
satisfactory.” ECF No. 17-9 at 2-5 (2012
provided affidavit and deposition testimony that during this
time, Gartland would belittle Plaintiff related to his
diabetes. Harrill Nov. Aff. ¶ 2; Harrill Dep. at 52:3-
Specifically, he would joke that a person going to the
restroom after Plaintiff needed to watch for a sticky floor
because of spilling sugary urine. Id.
Plaintiff's doctor wrote him a prescription to have a
special screen put on his computer because his medications
caused trouble with his vision and dry eyes. Pl. Dep.
66:8-18. When Plaintiff gave the prescription to Gartland, he
responded “You expect Alion or Kathi Jones to buy
this?” Id. at 66:23-24. After Plaintiff was
provided the screens, Gartland insisted that he did not need
them and he took them off. Id. at 67:16-68:1. After
another employee put the screens back on the computers,
Gartland yelled at Plaintiff, who he thought had reinstalled
the screens, yanked them off, and took them away.
Id. at 68:4-15.
September 2013, Gartland assigned Plaintiff and Harrill to
write three monthly histories for the 455th Air Expeditionary
Wing (“455 AEW”), a provisional AFCENT unit
located at Bagram Airfield in Afghanistan. Gartland Decl.
¶ 9. Gartland advised Jones that the project would be
completed in approximately eight weeks. Id.
first two weeks, Gartland sat between Plaintiff and Harrill
to assist them with writing the 455 AEW histories because he
knew they had minimal deployment experience and to be
available to answer any specific questions they had.
Id. at ¶ 10. After two to three weeks, Gartland
left Plaintiff and Harrill to work in one building, while he
worked in another building. Id. at ¶ 11.
Gartland states he continued to answer questions from both
Plaintiff and Harrill via telephone and email. Id.
Gartland eventually tasked Plaintiff to write about the MC-12
aircraft and Harrill to write about AFCENT's security
forces mission. Id. Gartland states that he noticed
Plaintiff was not making satisfactory progress, so he created
screen-by-screen training slides to assist him with writing
the histories. Id. at ¶ 12.
October 2013, Plaintiff began to suffer severe and chronic
headaches, was weak, sometimes confused, and dizzy. Pl. Aff.
¶¶ 8-10, 15; Pl. Dep. 55:2-8. Plaintiff testified
he called for an appointment with Dr. Stewart, but was only
able to obtain one two or three weeks out. Pl. Dep.
57:23-58:5. Plaintiff states that around mid-week the week of
October 27 to November 1, he recalls he checked his blood
sugar and it exceeded 500, the highest he had ever seen.
Id. at ¶ 8. He shared his concern about his
elevated blood sugar with Harrill. Id. Harrill told
Gartland about Plaintiff's high blood sugar reading, to
which Gartland remarked that Plaintiff should see a doctor.
Harrill Dep. 27:6-16. During the same week, Plaintiff started
the initial edit of his document and noticed strange errors.
Pl. Dep. 55:16-21. He told Gartland that he did not
understand why the errors were happening, that he was feeling
poorly, and experiencing headaches and confusion. Pl. Dep.
55:9-25. Plaintiff told Gartland he was going to his
physician and would make the corrections to the draft
document. Id. Gartland directed Plaintiff to return
to other tasks while Gartland himself would make the
corrections. Id. at 56:1-3.
testified his symptoms had become more severe, such that he
called and obtained an earlier appointment with Dr. Stewart
for the following Tuesday morning, November 5, 2013. Pl. Aff.
¶¶ 9-11; Pl. Dep. 58:2-15. Plaintiff called in sick
the morning of Monday, November 4, 2013, and explained to
Gartland that his symptoms had worsened and that he had a
doctor's appointment the following day. Id.
Plaintiff called Gartland the following day, stating he still
felt very badly and confirmed the physician appointment for
later that morning. Pl. Aff. ¶ 9. Plaintiff testified
that later on Tuesday he relayed to Gartland that his doctor
had told him, “We're going to have to adjust your
meds, and it's going to take several weeks for us to get
this thing adjusted, and, you know, you need to let your
employer know that you might need some time off.” Pl.
Dep. 59:3-7. Plaintiff did not seek any work-related
accommodation after he went to see his doctor on Tuesday,
November 5. Id. at 100:25-101:22.
Gartland claims that, near the end of October, he discovered
serious deficiencies in Plaintiff's work, spent two days
evaluating a small portion of Plaintiff's histories and
found numerous factual errors, misinterpretations, and
confusion. Gartland Decl. ¶ 13. On October 30, 2013,
Gartland reported to Waldron via email that he would need to
rewrite everything that Plaintiff had written, and that
Defendant would not meet the customer's deadline as a
result. [ECF No. 16-3 at 25]. The email was forwarded to
Cameron and ultimately to its customer, Jones. Id.
at 22-24. On the morning of November 5, 2013, Jones responded
to the email noting Plaintiff's “inability to grasp
the current material and to perform satisfactorily, ”
and requested Defendant remove Plaintiff and “replace
him with someone who can perform to standards.”
Id. at 21-22].
submits the email chain [ECF No. 16-3 at 21-26] to
demonstrate that by the time Plaintiff called Gartland on
Tuesday, November 5, after his appointment with Dr. Stewart,
Jones had already sent her email to Cameron asking that
Defendant replace Plaintiff. [ECF No. 16-3 at 22; Pl. Dep.
163:12 -165:18]. Defendant subsequently confirmed the
termination decision in writing to Plaintiff. [ECF No. 16-3
at 27]. When Plaintiff returned to work on November 6, 2013,
Gartland, Waldron, and Cameron met with him to let him know
his employment had been terminated “because he had made
mistakes in his writing and they had to go back and were
going to have to correct it.” Pl. Dep. 53:7-25.
testified he told Gartland on November 6, that his doctor was
“writing a letter to explain all this to you guys,
” but that he could not get the letter until “I
think the next day or maybe it was that day.” Pl. Dep.
59:11-14. He states that he told Jones: “Well, I've
got a letter coming saying this was a medical issue.”
Id. at 61:7-10. Plaintiff ultimately provided a
letter dated November 5, 2013, from Dr. Stewart to his
counsel, who forwarded it to Defendant. [ECF No. 16-3 at
33-35]. Plaintiff acknowledges that Defendant
terminated his employment before he received the letter from
Dr. Stewart. Pl. Dep. 160:11-14. The letter from Dr. Stewart,
which was addressed “To Whom It May Concern, ”
Mr. B. Kendall Bell has been a patient of mine since January
of 2008. Mr. Bell had fluctuations in his blood sugar, which
can affect his work ability and concentration. We are
currently working aggressively to fix this medical issue by
increasing insulins, referring him to an Endocrinologist;
and, having Mr. Bell see a Diabetes Mellitus Educator. This
specific medical issue should not occur again.
[ECF No. 16-3 at 34].
Complaint, Plaintiff maintains that “… the
mental issues causing the errors were/was related to his
medical condition ….” [ECF No. 1-1 at ¶
Standard on Summary Judgment
court shall grant summary judgment “if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The movant bears the initial burden of
demonstrating that summary judgment is appropriate; if the
movant carries its burden, then the burden shifts to the
non-movant to set forth specific facts showing that there is
a genuine issue for trial. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). If a movant
asserts that a fact cannot be disputed, it must support that
assertion either by “citing to particular parts of
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials;” or “showing . . . that an
adverse party cannot produce admissible evidence to support
the fact.” Fed.R.Civ.P. 56(c)(1).
considering a motion for summary judgment, the evidence of
the non-moving party is to be believed and all justifiable
inferences must be drawn in favor of the non-moving party.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). However, “only disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Factual
disputes that are irrelevant or unnecessary will not be
counted.” Id. at 248.
argues that summary judgment should be granted on
Plaintiff's ADA claims for failure to ...