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Bell v. Alion Science and Technology Corp.

United States District Court, D. South Carolina, Columbia Division

May 1, 2017

Boykin K. Bell, Plaintiff,
v.
Alion Science and Technology Corporation, Defendant.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges Columbia, South Carolina United States Magistrate Judge.

         In this 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.

         All 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.

         I. Factual Background

         Plaintiff is a type-II diabetic and was initially diagnosed in 2004 or 2005. Pl. Dep. 20:9-12.[1] 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.

         Plaintiff 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. ¶¶ 1-2.[2] 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].

         Initially, 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.

         Plaintiff's 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.[3] 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. Id.

         Plaintiff 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].

         However, 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].[4] 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.[5]Pl. Dep. 137:16-138:1.

         After 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.[6]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 evaluation).[7]

         Harrill 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- 20.[8] 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.

         In 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.

         For the 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.

         In 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.

         Plaintiff 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.

         Meanwhile, 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].

         Defendant 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.

         Plaintiff 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].[9] 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, ” provided:

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].

         In his Complaint, Plaintiff maintains that “… the mental issues causing the errors were/was related to his medical condition ….” [ECF No. 1-1 at ¶ 14].

         II. Discussion

         A. Standard on Summary Judgment

         The court shall grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “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.

         B. Analysis

         1. ADA Claims

         Defendant argues that summary judgment should be granted on Plaintiff's ADA claims for failure to ...


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