United States District Court, D. South Carolina, Charleston Division
REPORT AND RECOMMENDATION
Bristow Marchant United States Magistrate Judge
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.
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
testified at his deposition that he started working for a
company called Global Aeronautica beginning in
2008. 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,
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,
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.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.
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,  he testified that he received
long-term benefits after his first hip replacement surgery in
March 2014. Plaintiff's Deposition, p. 41.
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.
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; DMRs Davis, Watson, and
Timothy Brandon; and to the Defendant's Accommodation
Services. Plaintiff's Deposition, pp. 107-110;
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.
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; 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; 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,
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.
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.
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).
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.
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.
undersigned has addressed each of these claims, in turn.
Failure to Accommodate
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.”].
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
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
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 ...