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Dunn v. Faithful᪋ Inc.

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

June 18, 2018

Marcus Dunn, Plaintiff,
v.
Faithful᪋ Inc. and Atkins North America Inc., Defendants.

          ORDER

          Donald C. Coggins, Jr. United States District Judge

         This matter is before the Court on Defendants' Motion for Summary Judgment. ECF No. 45. Plaintiff filed a Response in Opposition. ECF No. 48. In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter was referred to United States Magistrate Judge Jacquelyn D. Austin for pre-trial proceedings and a Report and Recommendation (“Report”). On March 29, 2018, the Magistrate Judge issued a Report recommending that the Motion for Summary Judgment be granted. ECF No. 52. Plaintiff filed objections to the Report, Defendants filed a response to the objections, and Plaintiff filed a reply. ECF Nos. 53, 54, 56. On June 12, 2018, there was a hearing before the Court on the Motion for Summary Judgment. ECF No. 60.

         The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight, and the responsibility to make a final determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The Court is charged with making a de novo determination of any portion of the Report of the Magistrate Judge 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 recommit the matter to the Magistrate Judge with instructions. See U.S.C. § 636(b). The Court will review the Report only for clear error in the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005) (stating that “in the absence of timely filed objection, a district court need not conduct a de novo review, but instead must only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” (citation omitted)).

         The Magistrate Judge provides a thorough recitation of the facts of this case and the summary judgment standard in her Report which the Court incorporates by reference. Plaintiff brings claims for discrimination and retaliation under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq. As stated above, the Magistrate Judge recommends that summary judgment be granted with respect to both claims in favor of Defendants. Plaintiff presents fifteen objections for the Court's review. Because several of the objections discuss the same issue, for clarity, the Court will group the objections for discussion. In its review of this matter, the Court, as it must, construes the evidence in the light most favorable to Plaintiff, as the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         Essential Function

         Plaintiff's first six objections relate to the Magistrate Judge's conclusion that his on-site, physical presence was an essential function of Plaintiff's position. ECF No. 53 at 2-6. Plaintiff contends that this requirement was not a part of the written job description; that the Magistrate Judge afforded too much deference to Jeanette van Akelijen's preference that Plaintiff be present at the office; that the Magistrate Judge relied too heavily on the evidence that van Akelijen had refused to allow Plaintiff to work from home before his first seizure; that the Magistrate Judge failed to differentiate between essential functions of a position and marginal functions with respect to any of Plaintiff's work that would need to be reassigned to co-workers in order to allow him to work from home; that the Magistrate Judge relied too heavily on the correspondence between Plaintiff and his doctor because Plaintiff was adjusting to his medications and the correspondence was in the context of Plaintiff's application for disability benefits; and that the Magistrate Judge erred in relying on van Akelijen's, Steve Plane's, and Tracy Nursey's affidavits that they considered Plaintiff's presence on site to be an essential function of the position.

         A job function is essential when “‘the reason the position exists is to perform that function, ' when there [are not] enough employees available to perform the function, or when the function is so specialized that someone is hired specifically because of his or her expertise in performing that function.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 579 (4th Cir. 2015) (citing 29 C.F.R. § 1630.2(n)(2)). “[I]f an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job.” 42 U.S.C. § 12111(8). Other relevant evidence includes the employer's judgment as to the essential functions of the job, the amount of time spent performing the function, and the consequences of not requiring the function of the employee. 29 C.F.R. § 1630.2(n)(3).

         While Plaintiff disagrees with the Magistrate Judge's reliance on the statements of others, including van Akelijen, Plane, and Nursey that they considered Plaintiff's physical presence at the office or at the job site to be an essential function of the job, the Court finds that Plaintiff's own correspondence to his physician establishes that he also considered the ability to be present at a job site as an essential function of his position.[1]ECF No. 45-2 at 68. Plaintiff cannot now claim that he was unaware that his presence would be required at the job site because it was not included in the written job description or that it was merely the opinion of a supervisor without any other supporting evidence. Accordingly, the Court declines to specifically address whether the Magistrate Judge erred with respect to her reliance on other testimony and evidence in the record, because Plaintiff himself established that his physical presence at the job site was an essential function of his employment. Moreover, with respect to his argument that his letter to his physician should be read in the context of his pending application for disability benefits, Plaintiff has not established that his correspondence was false or misleading in any way.[2]

         Accordingly, the Court overrules Plaintiff's first set of objections.

         Reasonable Accommodation

         Plaintiff's next set of objections-numbered 7-10-relate to the Magistrate Judge's conclusion that Defendants' actively engaged in an interactive process to find a reasonable accommodation for Plaintiff. ECF No. 53 at 7-8. Specifically, Plaintiff contends that the Magistrate Judge erred in overstating Defendants' efforts to engage in the interactive process; that the Magistrate Judge erred in relying on E.E.O.C. v. Ford Motor Company, 782 F.3d 753 (6th Cir. 2015), and Minnihan v. Mediacom Communications Corporation, 779 F.3d 803 (8th Cir. 2015), because these cases are distinguishable from the present action; and that the Magistrate Judge erred in failing to consider extended leave as a reasonable accommodation. Id. The Court disagrees.

         In defining “reasonable accommodation, ” the ADA regulations provide:

To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

29 C.F.R. § 1630.2(o)(3). Accordingly, the ADA imposes upon employers a good-faith duty “to engage [with their employees] in an interactive process to identify a reasonable accommodation” which is triggered when an employee communicates his disability and desire for an accommodation-even if that employee fails to identify a specific, reasonable accommodation. Wilson v. Dollar Gen. Corp., 717 F.3d 337, 346 (4th Cir. 2013). An employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to ...


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