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Solt v. The Boeing Co.

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

February 14, 2018

JASON SOLT, Plaintiff,
v.
THE BOEING COMPANY, Defendant.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge

         This action has been filed by the Plaintiff, a former employee of the Defendant, asserting claims for discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. (First Cause of Action). See Complaint.

         The Defendant filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on September 25, 2017. Plaintiff filed a memorandum in opposition to the Defendant's motion on October 10, 2017, to which the Defendant filed a reply memorandum on October 17, 2017. Defendant's motion for summary judgment is now before the Court for disposition.[1]

         Background and Evidence[2]

         Plaintiff testified at his deposition that he started working for a company called Global Aeronautica beginning in 2008.[3] The Defendant acquired Global Aeronautica at some point later, while Plaintiff was working there. Plaintiff's Deposition, p. 47. Although Plaintiff could not recall the dates, he then quit the Defendant's employ at some point to move to Texas to care for his mother. Plaintiff's Deposition, pp. 63-64. However, on or about June 2, 2012, after he had moved back to Charleston and had worked at Fatz Restaurant for a while, he was rehired by the Defendant. Plaintiff's Deposition, pp. 64-65; Perry Declaration, ¶ 3.

         The Defendant is a global aerospace company that assembles large commercial jetliners in North Charleston. Perry Declaration, ¶ 3. Plaintiff worked as an Assembler B mechanic in Building 20. Plaintiff's Deposition, p. 54; Perry Declaration, ¶ 3. Assembler B mechanics are responsible for a wide range of duties, including, among other things, the installation of mechanical, pneumatic, hydraulic, and electrical systems into the jetliners' interiors and exteriors. Perry Declaration, ¶ 4. Plaintiff testified that his job involved a lot of walking, some climbing, some going up and down stairs, occasional sitting, and continuous standing for some jobs. Plaintiff's Deposition, pp. 56-57. Plaintiff testified that when he came to work each day, he was assigned a task for that day, and if he finished that task prior to the end of his shift, he would receive another assignment. Plaintiffs Deposition, pp. 54-55. While Plaintiff assisted where he was needed, he testified that he mainly installed airplane passenger doors. Plaintiff s Deposition, p. 58; Perry Declaration, ¶ 4. With regard to that job assignment, Plaintiff testified that he sometimes kneeled for a few minutes, sometimes squatted, bent and twisted at his waist, occasionally lay down, rarely reached overhead, occasionally reached shoulder level or below, walked to and from his job, once in a while climbed ladders or work platforms, climbed stairs, did not have to lift any significant weight (maybe a wrench), and said he might have to lift between 10 and 20 pounds occasionally. Plaintiffs Deposition, pp. 58-60. Throughout his employment, Plaintiff received favorable performance reviews and he was considered a good employee. Perry Declaration, ¶ 7; Plaintiff s Deposition, p. 92.

         Christopher Perry, a Production Manager for the Defendant, attests that the position of Assembler B mechanic is a physically demanding job that requires, among several other things, (a) six to eight hours of continuous standing on cement production floors, temporary floor panels, ladders or work platforms; (b) up to six hours of reaching overhead; and (c) up to three hours of walking on cement floors and temporary floor panels, as well as climbing ladders, kneeling, crawling, squatting, stooping, bending, and lifting more than 25 pounds. Perry Declaration, ¶ 5.[4]Perry also attests that while the doors team, which Plaintiff belonged to, was not required to crawl, the mechanics on that team are required to lay down, kneel, squat, reach, climb, stand, and walk for most of the shift. Perry attests that more than half of the work completed by the doors team must be completed below waist level. Perry attests that if an Assembler B mechanic cannot perform the physically demanding and often varying aspects of the job, they cannot perform the essential functions of that position. Perry Declaration, ¶ 6.

         Plaintiff was diagnosed in early 2014 with a vascular necrosis, which resulted in excruciating sharp pains that would prevent him from putting weight on his legs. Plaintiff's Deposition, pp. 80-81. Plaintiff testified that the pain was not constant, but would come and go. Plaintiff saw Dr. Marshall Hay, an orthopaedic surgeon, for his condition, and Dr. Hay performed surgeries in March and June of 2014, replacing both of Plaintiff's hips. Plaintiff's Deposition, p. 79. In anticipation of Plaintiff's hip replacement surgeries, in early 2014 Dr. Hay placed Plaintiff on temporary medical restrictions that 1) limited his walking, climbing stairs, bending, and kneeling to an hour a day or less per shift, 2) prohibited squatting, crawling and climbing ladders, and 3) allowed only occasional standing. Hay Deposition, p. 8; Exhibits 3 and 4. As these restrictions precluded Plaintiff from working at his regular job, he was provided some light work jobs to perform. Davis Deposition, pp. 19, 41-43; Plaintiff's Deposition, pp. 98-99. Plaintiff was eventually approved for a leave of absence in February, 2014, which continued to September 11, 2014. Plaintiff's Deposition, p. 100; Davis Deposition, pp. 41-43, Defendant'‘s Exhibits 1 and 2; see also Defendant's Exhibit G. As a result, Plaintiff filed at least one claim for short-term disability benefits and at least one claim for long term benefits with the Defendant, and received benefits both times. Plaintiff's Deposition, pp. 37-40. While Plaintiff could not recall the specific dates, [5] he testified that he received long-term benefits after his first hip replacement surgery in March 2014. Plaintiff's Deposition, p. 41.

         The evidence shows that following Plaintiff's initial hip surgery on March 4, 2014, Dr. Hay completed a Return to Work form for the Plaintiff that stated Plaintiff was medically unable to work from 3-14-14 through 6-9-14. Dr. Hay placed the following limitations on the Plaintiff during that time: prohibited from crawling, limited kneeling, and prohibited from climbing ladders. Hay Deposition, p. 15. Plaintiff”s second hip surgery was completed on June 10, 2014, and Plaintiff thereafter remained on approved medical leave until September 11, 2014, when Dr. Hay medically cleared him to return to full duty without any limitations or medical restrictions. Plaintiff then resumed his work as an Assembler B mechanic. Hay Deposition, pp. 15-16, 22-23; Exhibit 13; Plaintiff's Deposition, p. 101; Davis Deposition, pp. 41-43.

         However, after being back at work for approximately one (1) month, Plaintiff went to the Defendant's Medical office complaining that he was experiencing pain in his knees and stating that he was trying to get in touch with his physician. The Defendant's nurse sent Plaintiff home for the remainder of the shift to allow him to follow up with his physician. See Defendant's Exhibit H. On October 6, 2014, Dr. Hay completed a return to work/functional capacities form providing some temporary 2 month restrictions for the Plaintiff, as follows: 1-3 hours (occasional) bending and kneeling, 0-1 hour (limited) crawling, squatting, and climbing stairs and ladders. Hay Deposition, p. 22; see also Court Docket No. 25-3, p. 2. The next day, October 7, 2014, David Keller, a nurse in the Defendant's Health Services, sent an email to Plaintiff's managers stating that Plaintiff had received a Boeing Medical Restriction and/or Return to Work clearance. See Court Docket No. 24-6, pp. 90-91; see also Davis Deposition, p. 29. Plaintiff's temporary restrictions were communicated to the Plaintiff; his then-current manager, Martin Crandall[6]; DMRs Davis, Watson, and Timothy Brandon; and to the Defendant's Accommodation Services. Plaintiff's Deposition, pp. 107-110; Exhibit 4.

         Plaintiff's temporary restrictions did not include any limitations on Plaintiff's walking or standing, or preclude any other activities, and Plaintiff testified that after he submitted his return to work form in October 2014, he continued to work as an Assembler B and report to Mr. Perry. Plaintiff's Deposition, p. 110. Plaintiff testified that during this two month period he performed work in excess of the temporary limitations listed on the October 6, 2014 form, although other than speaking to Perry, he has no recollection of making any complaints or of making any requests for accommodations for the work assigned to him. Plaintiff's Deposition, pp. 107-110, 148, 150-151, 154. At the expiration of the temporary two month medical restrictions from Dr. Hay, Plaintiff returned to full duty as an Assembler B without medical restrictions or other limitations. Plaintiff thereafter performed his regular job from December 7, 2014, to July 8, 2015. Plaintiff's Deposition, pp. 108-111; Hay Deposition, pp. 23-24.

         However, on July 9, 2015, Dr. Edward M. Newton (Plaintiff's family physician) completed a new return to work/functional capacities form for the Plaintiff. This form set forth the following permanent work restrictions for the Plaintiff: 0-1 hour (limited) standing and walking, and prohibited certain activities including lifting/carrying 25 to 50 lbs., bending, kneeling, crawling, squatting, climbing stairs, and climbing ladders. See Court Docket No. 25-4, p. 2. Plaintiff submitted this return to work form to the Defendant; Plaintiff's Deposition, pp. 112-113; and on July 10, 2015, Melody Nelson sent a notice of these restrictions to Plaintiff, Daniel George[7]; DMRs Davis, Brandon and Watson; and to Boeing Accommodation Services. Plaintiff's Deposition, pp. 116-118, Exhibit 6; Davis Deposition, pp. 28-30; Court Docket No. 24-6, pp. 93-94. On July 24, 2015, DMR Lisa Davis met with Plaintiff; George;[8] Pearline Peterson, the Reassignment focal; and Sonya Ramirez, a Human Resource Generalist, to discuss Plaintiff's now permanent medical restrictions, the physical aspects of Plaintiff's position as an Assembler B mechanic, and whether there were any feasible accommodations that would allow Plaintiff to perform the essential functions of his job in light of his permanent restrictions. Davis Deposition, pp. 25-28; 44-49; Defendant's Exhibit 3; Plaintiff's Deposition, pp. 118-123. Defendant contends that there were no reasonable accommodations which would have allowed Plaintiff to perform the essential functions of his job, so at that point Davis explained to the Plaintiff that he would have to explore reassignment as a reasonable accommodation. For his part, Plaintiff testified he does not recall the specific details of their conversation. Davis Deposition, pp. 31-33; Plaintiff's Deposition, pp. 119-120. Although the Defendant provided Plaintiff with some temporary light duty work for a few days following the issuance of these permanent restrictions, Defendant contends that it had no long term (i.e. permanent) light duty assignments available, so Plaintiff was ultimately sent home. Plaintiff believes it was Davis who called him in and told him to go home. Plaintiff's Deposition, p. 95.

         Plaintiff testified that he did not recall working with Davis with regard to any accommodations, and when asked if he recalled talking with Davis about things that could be done or not done with regard to his job and his performance of his job, Plaintiff testified that he did not recall those conversations, although he affirmed that those conversations may have occurred. Plaintiff's Deposition, pp. 95-96, 120-121. For her part, Davis testified that she explained to Plaintiff that he would work with Pearline Peterson, the Reassignment focal, to seek any available reassignment since he could no longer perform his job. Davis Deposition, pp. 31-33. Further, although Plaintiff's last day of being present at the workplace was in July 2015, as an accommodation provided by the Defendant, Plaintiff thereafter remained an employee on inactive status/approved leave for approximately nineteen (19) months, and was eligible for long term disability. Plaintiff's Deposition, pp. 37-41, 128, 136-137.

         Plaintiff was eventually terminated by the Defendant in March 2017. Defendant contends that it terminated the Plaintiff because there was no reasonable expectation that he would be able to return to an open position for which he was qualified. See also Plaintiff's Deposition, pp. 136-137; Defendant's Exhibit L (a portion of Defendant's Leave of Absence Policy Handbook). 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 disability. 42 U.S.C. § 12112. Although Plaintiff only alleges a “First Cause of Action” in his Complaint, Plaintiff actually asserts at least 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 wrongfully terminated him on the basis of his disability. Complaint, ¶ ¶ 17-43. Plaintiff also references (and according to his brief is also asserting) a separate ADA retaliation claim. Id., at ¶ 44. See also Plaintiff's Brief, pp. 9-10.[9]

         The undersigned has addressed each of these claims, in turn.

         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). For purposes of this claim only, the Defendant does not contest that Plaintiff is a person with a disability and that it had notice of Plaintiff's disability. See Defendant's Memorandum in Support of Summary Judgment, pp. 7 n. 1, 19. However, Defendant argues that Plaintiff has failed to present evidence sufficient to establish a genuine issue of fact with respect to the third and fourth elements of his accommodation prima facie case, and that it is therefore entitled to summary judgment on this claim. 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.”].

         With respect to the third element, Plaintiff initially makes two assertions: first, that he could perform the essential functions of his position even without an accommodation (although he then concedes he would have needed to at least use a stool), and second, that he was fired for accommodations he never requested. Plaintiff's Brief, pp. 6-8. With regard to Plaintiff's contention that he could perform the essential functions of his job, Plaintiff argues that Dr. Newton's restrictions were in obvious contradiction with the opinion of Dr. Hay, which was already on file with the Defendant. Dr. Hay had opined that Plaintiff could return to full duty work and perform the essential functions of his position. See Plaintiff's Memorandum in Opposition to Summary Judgment, pp. 4-5. However, it was the Plaintiff himself who provided the updated restrictions from Dr. Newton to the Defendant, and Plaintiff offers no rationale for how the Defendant could have then ignored Dr. Newton's restrictions after receiving notice of them and allow Plaintiff to continue to do his full duty work, a decision which could have resulted in liability to the Defendant if Plaintiff had been further injured due to his condition. As such, the Defendant was entitled to rely on the work restrictions imposed by Dr. Newton in assessing whether Plaintiff could perform the essential functions of his job, either with or without an accommodation for these restrictions. Wulff v. Sentara Healthcare, Inc., 513 Fed.Appx. 267, 269, n. 2 (4th Cir. 2013); Alexander v. Northland, Inn, 321 F.3d 723, 727 (8th Cir. 2013)[Finding that the employer “was entitled to rely and act upon the written advice from [the employee's] physician that unambiguously and permanently restricted her from vacuuming. In this situation, the employee's belief or opinion that she can do the function is simply irrelevant.”].

         With regard to whether Plaintiff could perform the essential functions of his job with the restrictions imposed by Dr. Newton, the Fourth Circuit has held,

In determining whether a responsibility is an essential function of a job, we look to the general components of the job rather than to the employee's particular experience. That an employee may typically be assigned to only certain tasks of a multifaceted job “does not necessarily mean that those tasks to which [ ]he was not assigned are not essential” . . . Even though [the plaintiff in that case] worked primarily in the copy room, [ ]he could have, at any time, been called upon to move heavy furniture or carry heavy packages.

EEOC v. Womble Carlye Sandridge & Rice, LLP, 616 Fed.Appx. 588, 594 (4th Cir. 2015); see alsoLucarelli v. Conrail, No. 98-5904, 2002 U.S. Dist. LEXIS 12201, at * 29 (E.D.Pa. Mar. 26, 2002) [“In determining what job functions are essential to a particular position, consideration is given to the employer's judgment”]. In this case, it is clear that Dr. Newton's restrictions precluded Plaintiff from performing the essential elements of his job without an accommodation. See generally, Plaintiff's Deposition, Exhibits 2, 5, 6; Davis Deposition, pp. 25-28, 44-49; see also Plaintiff'sDeposition, pp. 54-60, 121. Accordingly, the evidence (even considered in the light most favorable to the Plaintiff) does not support Plaintiff's argument that he could have continued to perform ...


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