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Busha v. South Carolina Department of Mental Health

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

January 24, 2019

Teresa Busha, Plaintiff,
v.
South Carolina Department of Mental Health, Defendant.

          REPORT AND RECOMMENDATION

          Kaymani D. West, United States Magistrate Judge.

         Plaintiff Teresa Busha (“Busha” or “Plaintiff”), filed this action against her employer, South Carolina Department of Mental Health (“Defendant” or “SCDMH”), bringing failure-to-accommodate and rehabilitation claims under the Rehabilitation Act of 1973, 29 U.S.C. §§ 701, et seq. as applied through 28 C.F.R. Part 35 Section 504 (“Rehabilitation Act”), as well as claims under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq. and state-law-based claims for violation of the South Carolina Wage Payment Act; breach of contract/covenant of good faith and fair dealing; and promissory estoppel. Am. Compl., ECF No. 6. In a September 2017 Order, the court granted in part and denied in part Defendant's Motion for Judgment on the Pleadings. ECF No. 35; see also Report and Recommendation (“R&R”), ECF No. 29. Discovery ensued as to the only claim permitted to go forward-Plaintiff's Rehabilitation Act retaliation allegations stemming from actions occurring on or after January 26, 2016. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for an R&R on Defendant's Motion for Summary Judgment, ECF No. 70, in which it seeks dismissal of Plaintiff's only remaining claim. Plaintiff filed a responsive memorandum, ECF No. 72, to which Defendant filed a Reply, ECF No. 74. Having reviewed the parties' submissions and the applicable law, the undersigned recommends that Defendant's Motion for Summary Judgment, ECF No. 70, be granted.[1]

         I. Background

         A. Plaintiff's employment at SCDMH

         Plaintiff began working for SCDMH on November 17, 2011, as a Human Services Assistant II at the Patrick B. Harris Psychiatric Hospital located in Anderson, South Carolina. Pl. Dep. 29, ECF No. 72-5;[2] SCDMH Offer Letter to Plaintiff, ECF No. 70-4. Plaintiff participated in SCDMH's orientation for new employees. Pl. Dep. 32 and signed a disclaimer acknowledging she was an at-will employee and did not have a contract of employment. See ECF Nos. 70-5, 70-6.

         In June 2014, Plaintiff applied for a promotion to the Human Services Specialist I position at the McKinney House facility located in Mauldin, South Carolina. Pl. Dep. 35. Plaintiff explained that McKinney House is a “residential care facility where they work to integrate the clients who have been placed there from either a psychiatric hospital or another facility to integrate them back into society.” Pl. Dep. 36. Crystal Tate, administrator for McKinney House, interviewed Plaintiff, and SCDMH selected her for the promotion. Plaintiff's transfer and promotion were effective as of July 2, 2014. Pl. Dep. 36; June 25, 2014 Letter, ECF No. 70-7. Plaintiff participated in an orientation for the new position at McKinney House on July 7, 2014. ECF No. 70-8.

         1. Job duties as a Human Services Specialist I[3]

         As described by Plaintiff in her deposition, her job duties as a Human Services Specialist I (“HSSI”) included driving patients in state vehicles to appointments off campus, conducting daily room checks, maintaining daily communication logs, [4] cleaning up after patients, making patient's beds who were unable to do it themselves, disinfecting and cleaning patients' mattresses in cases of incontinence, cleaning the showers, bathing patients, cleaning the refrigerators, mopping, vacuuming, assisting with laundry, and cooking. See Pl. Dep. 42-49.

         The “State of South Carolina Position Description” (“PD”) for the HSSI position provides the following:

1. Job Purpose:
Under general supervision of the administrator, assists in the therapeutic care to residents of the Community Residential Care Facility (CRFC) operated by Piedmont Center for Mental Health Services. Works cooperatively with other Human Service Specialists and Human Service Assistants. Assists and instructs residents in needs of daily living, i.e., cooking, cleaning, budget planning, etc. Assists treatment team in therapeutic and rehabilitative activities.
2. Job Functions

Job Functions

Essential (E) or Marginal (M)

Percentage of Time

1)

Provides direct care attention to residents and serves as a role model in order to assist residents with their development of skills necessary to transition successfully and function independently. Observes and records residents['] behaviors. Documents residents['] attendance and behaviors in accordance with program requirements. [Participates in residents['] treatment care plan reviews. In EPMS doc but not PD]. All services and documentation will be provided in compliance with SCDMH, PCMHS, DHHS, CARF, QA, Corporate Compliance and DHEC standards.

E

55

2)

Assists residents in medication administration and compliance.

E

20

3)

Assists and coordinates transportation of clients to medical appointments and assures documentation of appointment is provided to CRCF. Assists and coordinates special activities and routine outings.

E

20

4)

Perform other duties as necessary.

M

5

ECF No. 72-2 at 7.

         Another document, the SCDMH Employee Performance Management System's “Essential and Other Job Duties, ” includes a similar description of these first three job functions, although it calls them “job dut[ies].” However, all of them were marked “Essential.” ECF No. 72-2 at 4.

Job Duties

Essential? [Marked with an “x” if essential.]

1)

Provides direct care attention to residents and serves as a role model in order to assist residents with their development of skills necessary to transition successfully and function independently. Observes and records residents['] behaviors. Documents residents['] attendance and behaviors in accordance with program requirements. Participates in residents['] treatment care plan reviews. All services and documentation will be provided in compliance with SCDMH, PCMHS, DHHS, CARF, QA, Corporate Compliance and DHEC standards.

X (Yes)

2)

Assists residents in medication administration and compliance.

X (Yes)

3)

Assists and coordinates transportation of clients to medical appointments and assures documentation of appointment is provided to CRCF. Assists and coordinates special activities and routine outings.

X (Yes)

4)

Completes activities of daily living, including but not limited to cleaning, laudrey (sic), meal preparation and clean-up; other tasks as needed and directed by supervisor.

X (Yes)

ECF No. 72-2 at 4. This description of duties appears to be part of an undated evaluation document concerning Plaintiff. She received a “Meets Expectations” appraisal. See ECF No. 72-2 at 1-5.

         As to the duties of her HSSI position, Plaintiff points out an August 24, 2015 email from SCDMH Risk Assessment Officer, Ed Felix. In the email, sent in connection to an undisclosed question about Plaintiff's prior workers' compensation claim, Felix points out what he terms as a “problem” with the PD listing the job duties. ECF No. 72-3 at 4. Felix notes that the PDs “essentially describe sedentary duties, ” making it seem, by Plaintiff's PD alone, that:

All she needs is a working right hand to write, make phone[] calls, and take notes. She doesn't even have to get up from a desk. Not even a S.C. driver's license is required to drive the patients because as it says she is to “coordinate.”

ECF No. 72-3 at 4. Felix indicates he plans to work to change the PDs, although there is no indication they were ever changed during the time at issue. The email was sent to Allison R. King (“King”), who was a Human Resources (“HR”) manager.[5] The email was also sent to Joseph C. Miller and Zina Hampton, who are not referenced elsewhere in documents highlighted to the court.

         2. Pre-January 26, 2016 events

         As noted above, the only active claims before the court and the only claims that are the subject of Defendant's Motion for summary judgment are Plaintiff's Rehabilitation Act retaliation claims based on actions on or after January 26, 2016. In any event, Plaintiff and Defendant have both included some facts that pre-date January 26, 2016. See, e.g., Def. Mem. 5-7; Pl. Mem. 3-8. The undersigned recaps portions of those facts for completeness but does not suggest they necessarily are relevant to Plaintiff's retaliation claims that are the subject of this R&R. See Sept. 25, 2017 Order 2 (noting judgment on the pleadings was appropriate as to all purported “Rehabilitation Act violations arising from actions that occurred prior to January 26, 2016”).

         Plaintiff injured her back during a November 15, 2014 at-work injury suffered when cleaning a puddle. Report of Injury, ECF No. 72-3 at 1.

         In January 2015, Plaintiff requested FMLA leave due to back, hip, and leg pain. ECF No. 70-9. In the FMLA medical certification (Form WH-380E, completed December 22, 2014), Plaintiff's doctor, Eric Loudermilk, M.D., described her condition as “Chronic lower back pain and bilateral hip and leg pain due to lumbar disk disease. Patient has required chronic pain medications over the past 7 years along with lumbar epidural steroid injections.” Id. at 6. Dr. Loudermilk had last treated Plaintiff on December 11, 2014. Id. at 6.[6] The certification indicated Plaintiff's “essential job functions” were “assisting residents with daily living skills, transportation to medical appts., medication administration, cooking, cleaning[.]” Id. at 5. Plaintiff's doctor responded “no” to the question of whether Plaintiff would be “unable to perform any of his/her job functions due to the condition.” Id. at 6. Plaintiff's doctor advised that Plaintiff may have an episodic flare-up “1-2 times per 3 months” with a “Duration [of] 1-2 day(s) per episode.” Id. at 7. SCDMH approved Plaintiff for FMLA leave. King Dep. 42; Tate Dep. 45 (ECF No. 70-11); Deposition of Piedmont Center Executive Director Joe James (“James Dep.”) 29, ECF No. 70-12.

         On January 23, 2015, Plaintiff was issued a Written Warning for Excessive Absenteeism. ECF No. 72-3 at 3. In this warning, Tate acknowledges Plaintiff had been approved for “intermittent FMLA, ” which she was “approved to continue to utilize [] for [her] serious medical condition as needed.” Id. Nonetheless, Plaintiff's attendance records indicated she had been absent from work “approximately 3-5 times per month due to calling in sick, leaving early, etc.[, ]” behavior that is “unacceptable.” Id. Tate noted she had discussed attendance issues with Plaintiff on December 1, 2014, but had not seen the expected improvement in absenteeism. Plaintiff was advised that future violations would “result in further disciplinary action[.]” Id.[7]

         Over the next few months, Defendant found that Plaintiff continued to have excessive absences, some related to Plaintiff's medical appointments, some “possibl[y]” related to pain that interfered with work. Tate Dep. 45-46. On May 15, 2015, King emailed Plaintiff regarding the absences. May 15, 2015 email from King to Plaintiff, ECF No. 70-13 at 2. King noted that Plaintiff had been absent 10 days within the past 3 months due to back-related pain while her FMLA medical certification states she should be out no more than 1-2 times per 3 months. King also inquired about Plaintiff's request for 6 weeks of leave due to her back problems. Ms. King asked Plaintiff to provide an updated FMLA medical certification. Id.

         On May 25, 2015, Plaintiff injured her back at work and went out on medical leave. Pl. Dep. 57-58. See Report of Injury, ECF No. 73 at 2. In a difficult-to-read handwritten note from Plaintiff's doctor, he indicated he had seen her that day, June 3, 2015, and he stated, “I do feel that any bending and lifting would aggravate her acute flareup of pain. Please excuse her from the previously mentioned activities.” ECF No. 73 at 4.[8]

         Plaintiff then submitted an updated FMLA medical certification dated June 6, 2015. June 6, 2015 WH-380-E, ECF No. 70-14. In that certification, Plaintiff's doctor (again Dr. Loudermilk) stated she may need to be out “3-4 times per 2-3 month(s)” with a “Duration [of] 5-10 day(s) per episode” due to her back-related pain. Id. at 4. The Certification form again identified Plaintiff's “essential job functions” as “assisting residents [with] daily living skills, transporting to medical appointments, medication administration, cooking, cleaning[.]” Id. at 2. Plaintiff's doctor responded “no” to the question of whether Plaintiff would be “unable to perform any of his/her job functions due to the condition.” Id. at 3.

         SCDMH, through King, wrote to Plaintiff on July 14, 2015 and requested clarification of Dr. Loudermilk's FMLA paperwork. The letter indicated Defendant needed “clarification on the restrictions he is requesting, ” and needed to know whether the “restrictions are permanent or if they are only required at treatment times.” ECF No. 70-15. The letter provided instructions as to where the additional paperwork should be sent. Id.

         In an August 14, 2015 certified letter to Plaintiff, Defendant advised her that her FMLA certification would expire on August 24, 2015, and they were anticipating her return to work on August 25, 2015. ECF No. 70-16.[9] Plaintiff testified that she returned to work on August 25, 2015, as required. Pl. Dep. 63. She stated she requested accommodations but Defendant did not provide them. Id. She explained that she had conveyed to Tate the restrictions Dr. Loudermilk had placed on her indicating Plaintiff was not to twist, bend, lift over 10 pounds, or reach over her head. She stated that “every month her pain management doctor stated the same thing.” Id. Plaintiff indicates Tate “ignored” Plaintiff's limitations.[10] Plaintiff indicated she worked the rest of August, all of September 2015, and took medical leave in mid-October 2015. Pl. Dep. 62.

         In a September 28, 2015 letter to Plaintiff, Defendant, through King, advised Plaintiff that, upon exhaustion of her FMLA leave, Plaintiff could request up to 180 days of disability leave pursuant to leave policy number 902-11. ECF No. 70-18. Plaintiff was instructed to submit a written request to James (Piedmont Center Executive Director) no later than October 15, 2015, if she would like to request disability leave. Id. After King did not hear from Plaintiff, she reminded her on October 27, 2015, about the disability leave. ECF No. 70-19.

         Plaintiff submitted a leave request dated October 30, 2015, in which she explained:

I was diagnosed in 2006 with degenerative disc disease. Over the years my condition has worsened. It is now to the point I have to have surgery on my back replacing the disc. Surgery is Dec. 7th. I am in severe pain at all times and my mobility and activity levels have deteriorated to where I am in the bed most all day. My surgery is Dec. 7th and I am told by the surgeon I will have a six to eight month recovery (maybe less depending on my healing). I will have to have therapy after surgery. It is undecided at this point if I will have to have a home health nurse. I will have to do inpatient therapy.

ECF No. 70-20.

         The record includes a fax cover sheet dated October 12, 2015, in which Plaintiff sent King several notes from Dr. Loudermilk's office. ECF No. 72-4. See Id. at 2 (Sept. 23, 2015 notation on “Rx” pad, “Please excuse Mrs. Busha from activities that could increase her back pain, which would include long periods of standing, sitting, repetitive twisting, bending or heavy lifting.”); Id. at 3 (Aug. 26, 2015 notation on “Rx” pad, “Repetitive bending, twisting and standing for long periods of time aggravates patient's low back pain.”); Id. at 4 (June 3, 2015 notation on “Rx” pad, “Mrs. Busha was seen today in our office and I do feel that any bending and lifting would aggravate her acute flare up of back pain. Please excuse her from the previously mentioned activities.”).

         In a letter dated November 1, 2015, Plaintiff wrote to James to request disability leave, stating the following:

Please permit this letter to constitute my request for the in-house disability leave we discussed at Piedmont Mental Health Center on Friday, October 30, 2015. This request is related to, and as the direct result of, my degenerative disk disease. . . . I am sincerely grateful that you took the time to make me aware that the in house disability leave was an option. . . . [T]hank you for the compassion and patience you have shown regarding my medical condition, your professionalism is greatly appreciated.

ECF No. 70-12. James approved Plaintiff's request for disability leave on November 16, 2015. ECF No. 70-22.

         In a January 11, 2016 certified letter to Plaintiff, Defendant, through King, noted that Plaintiff's “disability leave that was approved as of June 08, 2015 expired on December 05, 2015.” ECF No. 70-23. King noted Plaintiff had been “absent from work due to illness since June 8, 2015.” Id. King explained under SCDMH policy the leave “shall not exceed one hundred eighty (180) calendar days; otherwise, the employee shall forfeit reinstatement privileges and be separated from service.” Id. However, in extenuating circumstances, Plaintiff could request an extension of the leave beyond 180 days due to illness. Id.

         On January 20, 2016, Plaintiff requested additional leave beyond the 180 days, explaining circumstances as to other medical conditions that delayed the back surgery. Plaintiff submitted her circumstances amounted to the “extenuating circumstances” necessary to grant leave beyond the 180 days. ECF No. 70-24. Plaintiff expressed her “sincere appreciation” for the “compassion and patience” SCDMH had shown regarding her medical condition. Id.

         3. Events on and after January 26, 2016

         In a February 10, 2016 certified letter Defendant, through Deputy Director, CMHS, Geoffrey J. Mason, approved Plaintiff's request for extended leave. ECF No. 70-25 (“Approval is granted for you to remain on leave beyond 180 days through March 28, 2016.”). On March 17, 2016, Plaintiff spoke with King on the telephone and advised she would be unable to return to work on March 28, 2016, but hoped to return on May 9, 2016. See Mar. 17, 2016 email from Plaintiff to King indicating it attached medical documentation), ECF No. 70-26. King sent a certified letter to Plaintiff dated March 18, 2016 advising Plaintiff that she could request another extension of her disability leave for extenuating circumstances. ECF No. 70-27.

         In a March 22, 2016 letter to James, Plaintiff made a request for “additional leave ‘beyond the 180 days of extended leave due to illness[, ]'” noting the request related to her degenerative disk disease, which had “progressively worsened over the past several months, causing medically documented episodes that leave [Plaintiff] in great pain and immobile for days at a time.” ECF No. 70-28. Plaintiff explained that “the neurologist originally projected my release date would be 03/28/2016, but decided to push that date to May 9th, 2016 due to delays in healing he thinks may have been caused by the r[]adiation therapy I received for cancer treatments.” Id.

         Defendant approved Plaintiff's request for extended leave. ECF Nos. 70-29, 70-30 (noting approval for Plaintiff “to remain on leave beyond 180 days through May 9, 2016”).

         King spoke with Plaintiff on May 5, 2016 about her returning to work on May 11, and instructed her to see King first and provide documentation regarding “any limitations/restrictions.” ECF No. 70-31. On May 9, 2016, Plaintiff and King met regarding her return to work. May 9, 2016 Letter from King to Plaintiff, ECF No. 70-32. In the letter, King relayed the following:

[Plaintiff] advised [King] of the following restrictions as directed by [Plaintiff's] physician: no lifting over ten (10) pounds, no bending, and no twisting. [Plaintiff] also stated [she] would not be able to do the following duties: drive a state vehicle, move trash cans, bend and/or twist to obtain pots and pans from cabinets, load sanitizer machine for dishes, clean bathrooms to include tubs, and put sheets on beds. Additionally, [Plaintiff] affirmed [she] would be able to: complete paperwork, provide required medications to clients, cook for clients, rinse off dishes, and check rooms as necessary.
Furthermore, [Plaintiff] stated [she] will be wearing a back brace until further notice and will need [her] walker in order to get up and down during [her] shift. [Plaintiff] also stated [she] will use [her] “grabber, ” a device that [she] described as a tool to help [Plaintiff] reach ...

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