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Equal Employment Opportunity Commission v. McLeod Health, Inc.

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

September 21, 2017

Equal Employment Opportunity Commission, Plaintiff,
McLeod Health, Inc., Defendant.



         This action arises out of Cecilia Whitten's (“Whitten”) termination with Defendant McLeod Health, Inc. (“Defendant” or “McLeod”). On September 11, 2014, Plaintiff Equal Employment Opportunity Commission (“Plaintiff” or “EEOC”) filed this action under Title I of the Americans with Disabilities Act of 1990 (“ADA”) and Title I of the Civil Rights Act of 1991, alleging that Defendant subjected Whitten to improper medical examinations and terminated her employment in violation of the ADA. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Thomas E. Rogers, III, for consideration of pretrial matters. Summary judgment was previously granted on Plaintiff's improper medical examination claim (see ECF No. 64 at 1-15), and the matter was remanded for consideration of Plaintiff's wrongful termination claim and any potential failure to accommodate claim (see ECF No. 81 at 3-4). The Magistrate Judge prepared a thorough Report and Recommendation (“Report”), which recommends that Defendant's motion for summary judgment be granted as to the remaining wrongful termination claim. (ECF No. 96.) Plaintiff filed timely objections to the Report, Defendant responded in turn, and Plaintiff filed a reply. (ECF Nos. 97, 99, 100.) For the reasons set forth herein, the Court adopts the Report and grants summary judgment in Defendant's favor.


         The Report sets forth in detail the relevant facts and standards of law and the Court incorporates them and summarizes below only in relevant part. On January 1, 2016, the Magistrate Judge entered a Report and Recommendation (“First Report”) recommending that Defendant's motion for summary judgment be granted both as to Plaintiff's improper medical examination claim and as to Plaintiff's wrongful termination claim. (ECF No. 59.) The Court entered an Order adopting the First Report as to the improper medical examination claim, but remanding the wrongful termination claim to the Magistrate Judge for consideration of “this claim in light of Defendant's remaining arguments set forth in its motion for summary judgment.” (ECF No. 64 at 19.) Defendant filed a motion for reconsideration arguing, inter alia, that the Court erred in finding that issues of fact remained as to the wrongful termination claim. (ECF No. 70.) The Court granted the motion for reconsideration in part, vacating the portion of its previous Order relating to Plaintiff's wrongful termination claim, directing further briefing thereupon, and remanding the case to the Magistrate Judge to address the merits of the claim, with particular attention to the role of the futile gesture doctrine, as well as whether a failure to accommodate claim exists and survives summary judgment. (ECF No. 81.) After the parties filed their supplemental briefs, the Magistrate Judge submitted his second Report and Recommendation on June 19, 2017. (ECF No. 96.) Plaintiff filed its objections to the second Report on July 3, 2017. (ECF No. 97.) Defendant filed a response to the objections on July 17, 2017. (ECF No. 99.) Plaintiff replied on July 27, 2017. (ECF No. 100.)

         The Court has thoroughly reviewed the Report, all related briefing, the objections, all relevant responses and replies, and the applicable case law. Case law exists to support both sides of the issue regarding an employer's duty to affirmatively reassign an employee to a vacant position in contravention of the employer's facially neutral requirements that the employee apply for and compete for the position; however, none of the case law is controlling and the issue presents a circuit split. In truth, the theory and analysis pursued by Plaintiff regarding Defendant's allegedly unlawful failure to reassign Whitten has strayed far afield from the wrongful discharge claim actually pleaded in the complaint and has only tangential relevance to the resolution of Defendant's summary judgment motion. Ultimately, the Court finds that Whitten's own conduct during the parties' efforts to find an appropriate reassignment position dictated the result of that process, and the Court will enter judgment accordingly.[1]


         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The Court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The Court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).


         Plaintiff objects to the Report on two grounds, arguing the Magistrate Judge erred: (1) in the legal analysis of and conclusion as to whether the ADA's reasonable accommodation provision requires an employer to affirmatively reassign a disabled employee to a vacant position when the employee satisfies the position's basic qualification standards and expresses a desire for the position; and (2) in applying a flawed reassignment analysis to the facts of this case, resulting in a determination that would not be reached under application of the correct assignment standard. (ECF No. 97 at 1.)

         The Court has considered the EEOC's objections de novo and finds them unpersuasive and insufficient to reject the recommendations of the Magistrate Judge. In his thorough thirty-one page Report, the Magistrate Judge detailed the factual background of this matter before engaging in a thoughtful and comprehensive analysis of the EEOC's claims. (See generally, ECF No. 96.) As an initial matter, it must be noted that the EEOC acknowledged, in its objections (ECF No. 60) to the First Report, in its supplemental brief (ECF No. 85), and in its instant objections (ECF No. 97) that it has not alleged a separate cause of action for failure to accommodate. Accordingly, the Magistrate Judge correctly determined that no independent failure to accommodate claim exists or survives summary judgment. (ECF No. 96 at 12.)

         The EEOC's complaint contains two claims: (1) that Defendant subjected Whitten to illegal medical examinations in violation of the ADA; and (2) that Defendant placed Whitten on forced leave and discharged her on the basis of her disability in violation of the ADA. (ECF No. 1.) After discovery closed and Defendant filed its motion for summary judgment, and after the Magistrate Judge issued the First Report concluding inter alia that Whitten's failure to apply to any positions constituted a failure to engage in the interactive process, the EEOC introduced a new theory (see ECF No. 60 at 22-23, 25), now prevalent in its objections, that Defendant's failure to accommodate Whitten in the form of automatic reassignment to a vacant position should be viewed as evidence in support of the discriminatory discharge claim (see ECF No. 97 at 12).[2] Defendant views the shifting basis for Plaintiff's claims with skepticism, and for good reason. Defendant argues:

The EEOC, who never pled failure to accommodate, let alone failure to reassign, has now completely shifted its arguments in this case and is trying to backdoor their way into a claim and legal theory never contemplated at the outset. What began as an unlawful medical examination case has now, somehow, been converted into a failure to reassign case. While the EEOC seems to finally acknowledge that it never pled a failure to accommodate claim, let alone failure to reassign, it believes it is entitled to pursue a failure to reassign argument as if it had been pled. This is not a reassignment case. It should not be a reassignment case. This is a wrongful discharge case based on an alleged unlawful medical examination, leave, and subsequent discharge. The only reason the Magistrate court felt compelled to consider reassignments was in analyzing whether Whitten was a “qualified individual” under the ADA.

(ECF No. 99 at 4.) The EEOC never sought to amend the complaint to add a failure to accommodate claim and without such an amendment a new claim may not be raised. Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 617 (4th Cir. 2009) (“We have previously held, along with the Fifth, Sixth, Seventh, and Eleventh Circuits, that a plaintiff may not raise new claims after discovery has begun without amending his complaint.”) (citations omitted). In the absence of any failure to accommodate claim in the pleadings, the EEOC's current reliance on a failure to reassign theory is simply an attempt to move the goal posts, a shifting target grafted onto the wrongful discharge claim once the gravamen of Plaintiff's case (the improper medical examination claim and the portion of the wrongful discharge claim that relied upon it) was unsuccessful.

         Nevertheless, the Magistrate Judge analyzed the Defendant's alleged failure to accommodate as possible evidence supporting Plaintiff's wrongful discharge claim, as Plaintiff argued the Court should do. (ECF No. 96 at 13.) This analytical rubric considered the failure to reassign Whitten for its limited relevance in determining whether any material issues of fact remain pertaining to the wrongful discharge claim. The Court finds that this approach was proper, and that the Magistrate Judge appropriately construed the claims, the facts, and all reasonable inferences in Plaintiff's favor, as was the Magistrate Judge's responsibility at the summary judgment phase. Ultimately, the Magistrate Judge concluded that Plaintiff failed to present sufficient evidence to create a genuine dispute of fact as to whether McLeod violated the ADA by terminating Whitten's employment. (Id. at 30-31.) Accordingly, the Magistrate Judge recommended that summary judgment be granted as to the wrongful discharge claim. (Id.)

         A threshold inquiry to the wrongful termination analysis is whether Whitten is a “qualified individual with a disability.” (Id. at 30.) To be a qualified individual with a disability, an employee must be “an individual who, with or without reasonable accommodation can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The parties do not dispute that Whitten had a disability. To resolve whether a person is a “qualified individual, ” the Court must consider whether that person is able to perform the essential functions of the job in question, and if not, whether the person could do the job with reasonable accommodation. Tyndall v. Nat'l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir. 1994) (citing Chandler v. City of Dallas, 2 F.3d 1385, 1393-94 (5th Cir.1993)).

         In his First Report, the Magistrate Judge recommended a finding that the ability to safely traverse across the various McLeod medical campuses was an essential function of Whitten's job. (ECF No. 59 at 22.) The Court overruled Plaintiff's objection to this recommendation and found that Plaintiff failed to establish that a reasonable jury could conclude that the ability to navigate safely is not an essential function of the Communications Specialist position. This portion of the Court's March 31, 2016 Order was not vacated and remains in force. (See ECF No. 64 at 7.)

         Mr. Todd Laliberte (“Laliberte”), in a functional capacity examination he performed, determined that Whitten was a “high fall risk, high injury risk, secondary to her congenital defects and severely deconditioned state” in 70-80% of all job functions associated with the Communications Specialist position. (ECF No. 96 at 5.) Based on these findings, Laliberte would not clear Whitten to work unless all of the restrictions he proposed-among them, that Whitten's assignments be limited to a ten-mile vicinity- could be accommodated and/or her strength and conditioning improved to lessen her fall risk. (Id.) Although Defendant advised Whitten on numerous occasions that any contrary medical opinion would receive due consideration by the accommodation committee, Whitten failed to provide any such opinion that might have indicated her ability to fulfill the duties of a Communications Specialist. (See Id. at 6-10.) The accommodation committee determined that the restrictions required by Laliberte's report would not permit Whitten to perform all essential functions of her job, because removing the mobility aspects of the job would eliminate the very purpose of the Communications Specialist position. (Id. at 6, 15.) The position specifically required going to events within a 100-mile radius and once there, navigating to conduct interviews and take photographs. (Id.) The ADA does not require an employer to reallocate job duties that would change the essential functions of the position in question. Carter v. Tisch, 822 F.2d 465, 467 (4th Cir. 1987). Accordingly, the Magistrate Judge correctly concluded that Whitten was not able to perform the essential functions of the Communications Specialist job with or without reasonable accommodations. (ECF No. 96 at 14-16.)

         Plaintiff appears to have abandoned its reliance on the futile gesture doctrine and does not challenge the Magistrate Judge's conclusions on this issue in its objections or its reply in support of those objections. Nevertheless, the doctrine requires brief discussion here in light of the fact that the Court remanded the case to the Magistrate Judge specifically to consider the doctrine's applicability vel non.

         The parties' positions regarding the futile gesture doctrine are as follows: (a) Defendant argues that Whitten was responsible for the breakdown in the interactive process because Defendant, through various actors, told Whitten on no less than six occasions that if she or her medical provider disagreed with Defendant's assessment of her restrictions and limitations, she could submit an alternative opinion and it would be considered; (b) Plaintiff argues that Whitten's failure to obtain an alternative opinion from her doctor should be excused by the futile gesture doctrine because Defendant's conduct, in particular a statement by McLeod occupational health employee Octavia Williams-Blake that Whitten would never return to the Communications Specialist position, essentially foreclosed Whitten from participating in the interactive process. (See ECF No. 96 at 18-21.) After outlining the relevant legal standards the Magistrate Judge concluded that Plaintiff cannot meet its burden of showing circumstances surrounding the breakdown in the interactive process that created an objectively reasonable perception that the process was at an end. (Id. at 19.)

         The Court agrees with this conclusion and adopts the Magistrate Judge's reasoning and findings. Even accepting Whitten's representation that Ms. Williams-Blake stated Whitten would never return to the Communications Specialist position (which McLeod contends never happened), the undisputed evidence demonstrates numerous instances where Whitten was specifically invited to submit a contrary medical opinion in order to obtain a more favorable result from the accommodation committee. The futile gesture doctrine only applies “in the rare case where an employer has essentially foreclosed the interactive process through its policies or explicit actions.” Davoll v. Webb, 194 F.3d 1116, 1133 (10th Cir. 1999). As explained by the Fifth Circuit Court of Appeals:

When a breakdown occurs because an employer creates an objectively reasonable perception that the process is clearly at an end, the employer is as well placed as the employee to avoid the situation. It knows what it said, and how a reasonable person would interpret it, and thus bears responsibility for salvaging the process. But when an employer's statements do not rise to that level, and the breakdown is caused by the subjective spin the employee chooses to place on them, only the employee can prevent the process from collapsing. The employer can hardly be expected to know that the employee is laboring under an unreasonable conviction that further discussion would clearly be futile.

Loulseged v. Akzo Nobel Inc., 178 F.3d 731, 739 (5th Cir. 1999) (emphasis added). The Court finds that an objectively reasonable person in Whitten's position would not have believed the interactive process to be futile where she was invited, time and again, to submit contrary evidence challenging the characterization of her limitations and restrictions, and was repeatedly assured that any such contrary evidence would receive due consideration.

         The next question is whether Whitten is a “qualified individual” with a disability because she could perform the essential functions of her job with reasonable accommodation in the form of reassignment to a different position. Reassignment to another position that can accommodate an employee's disability-related restrictions is a reasonable accommodation if the other position is vacant and the employee is qualified to perform the essential functions of the position. See 42 U.S.C. § 12111(8) & (9). At the time of Whitten's leave following the determination that her disability could not be accommodated in her current position, at least two positions for which Whitten could have applied were vacant: a Monitor Technician position and a receptionist position at the health and fitness center. (Kaercher Dep. 24, 28-29, ECF No. 44-13.) The EEOC objects to the Magistrate Judge's legal analysis and conclusion that Defendant did not have an affirmative responsibility to reassign Whitten to a vacant position without requiring Whitten to apply or compete for the position.

The EEOC's reassignment theory in this case is based in large part on its own guidance, which it quotes at length in its supplemental brief:
The ADA specifically lists ‘reassignment to a vacant position' as a form of reasonable accommodation. [Citing, inter alia, 42 U.S.C. § 12111(9)(B) (1994); 29 C.F.R. § 1630.2(o)(2)(ii) (1997).] . . . .
The employer must reassign the individual to a vacant position that is equivalent in terms of pay, status, or other relevant factors (e.g., benefits, geographical location) if the employee is qualified for the position. If there is no vacant equivalent position, the employer must reassign the employee to a vacant lower level position for which the individual is qualified.”
[Question 29] Does reassignment mean that the employee is permitted to compete for a vacant position?
No. Reassignment means that the employee gets the vacant position if s/he is qualified for it. Otherwise, reassignment would be of little value and would not be implemented as Congress intended. [Citing, inter alia, 42 U.S.C. § 12111(9)(b) (1994); 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997); S. Rep. No. 101-116, at 31 (1989) (“If an employee, because of disability, can no longer perform the essential functions of the job that she or he has held, a transfer to another vacant job for which the person is qualified may prevent the employee from being out of work and the employer from losing a valuable worker.”).]

(Pl.'s Supplemental Br., ECF No. 85 at 6 (quoting EEOC, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.022, 2002 WL 31994335, at *21 (Oct. 17, 2002) (“the Guidance”)) (internal modifications, citations, and emphasis copied verbatim).) Thus, argues the EEOC, “Once Defendant determined Whitten could not perform her former Communications Specialist position with or without accommodation, Defendant had the affirmative duty to place Whitten in a vacant position for which she was qualified without requiring Whitten to formally apply or compete.” (Id.) Notably, however, the EEOC omitted from its briefing a relevant portion from the very passage of the Guidance that it quoted, which states:

Assuming there is more than one vacancy for which the employee is qualified, the employer must place the individual in the position that comes closest to the employee's current position in terms of pay, status, etc. If it is unclear which position comes closest, the employer should consult with the employee about his/her preference before determining the position to which the employee will be reassigned.

         Guidance, 2002 WL 31994335, at *21. This portion of the Guidance envisions situations in which the employer must engage in consultation with the employee before mechanically reassigning her to a position for which she is technically “qualified” because the ...

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