United States District Court, D. South Carolina, Florence Division
C. Coggins, Jr. United States District Judge
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.
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)).
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).
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.
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. §
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.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.
the Court overrules Plaintiff's first set of objections.
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
defining “reasonable accommodation, ” the ADA
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
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 ...