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Butler v. Pepperdam Construction Company Inc.

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

March 1, 2019

ANDREW R. BUTLER, Plaintiff,
v.
PEPPERDAM CONSTRUCTION COMPANY, INC., 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 and retaliation in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. (First and Second Causes of Action). See Complaint.

         The Defendant filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on November 13, 2018. Plaintiff filed a memorandum in opposition to the Defendant's motion on November 27, 2018, to which the Defendant filed a reply memorandum on December 4, 2018. Defendant's motion for summary judgment is now before the Court for disposition.[1]

         Background and Evidence[2]

         Plaintiff was hired by the Defendant on or about October 1, 2015, where he worked as a Supervisor. Plaintiff's duties included, but were not limited to, ordering materials for jobs, being responsible for crew supervision, and implementing assignments for crew members. See Plaintiff's Deposition, p. 41.[3]

         While working on December 10, 2015, Plaintiff and Jason Kobbe, a co-worker, were stopped at a traffic light in one of the Defendant's vehicles, when they were hit from behind by another vehicle. See Plaintiff's Exhibit B. The Defendant's vehicle sustained minor damage to the rear bumper. See Jennie Blanton Affidavit, ¶ 7. Following the accident, Plaintiff completed a company incident report which stated the nature of the injury as “impact” and the body parts affected as “shoulder and neck” for Kobbe and himself. Plaintiff and Kobbe both stated that no medical treatment was required and that neither employee even left work. See Jennie Blanton Affidavit, Exhibit A.

         Kobbe attests that both employees had their seat belts on at the time of the accident, and that just before they were rear-ended, that Plaintiff said “hang on” or words to that effect indicating to Kobbe that Plaintiff noticed the other vehicle was about to make contact with their car. Kobbe also attests that the contact between the vehicles caused both of them to lunge forward. However, neither of them made any contact with the dashboard, steering wheel, windshield, or any other part of the vehicle. Kobbe attests that he was not hurt or injured and did not require any medical attention, and that when they exited the vehicle, Plaintiff did not indicate that he was injured in any way or required medical treatment. Kobbe recalled Plaintiff saying the following day at work that he was a “little stiff and a little sore”, but he did not state that he needed any medical attention, and they worked together throughout the day without Plaintiff indicating that his physical condition prevented him from performing any of the duties required of them. Kobbe further attests that Plaintiff was able to, and did, engage in all of the physical activity required of them during that workday. See Kobbe Affidavit, ¶¶ 4-9.

         On January 22, 2016, Plaintiff presented to the St. Francis Hospital Emergency Department with complaints of “Motor Vehicle Collision”. The treatment notes state that “[t]here is a concern for cervical radiculopathy C5-6 right and the patient may need an MRI of the cervical spine if he does not improve with conservative therapy.” However, these notes also reflect that back pain was absent, that Plaintiff had full active range of motion in all extremities; that his sensation was intact; his right hand was normal with no signs of compartment syndrome; no pain with passive ROM, no numbness, no sensation deficit, no palor, and no weak pulses; and weight bearing was listed as “able to fully bear weight, without difficulty.” The discharge notes reflect that no medications were administered. Plaintiff was advised to take ibuprofen, apply over the counter pain cream to his neck and upper back, and to follow up with a physician for a possible MRI. See Court Docket No. 24-4; see also Court Docket No. 24-5.

         On February 29, 2016, Physician's Assistant (PA) Taylor Callinan saw Plaintiff with complaints of post-traumatic headache, sprain of joints and ligaments of unspecific part of neck, ulnar nerve damage, and right arm weakness. Callinan noted that Plaintiff's right arm strength diminished compared to left on physical exam, especially his biceps, and Plaintiff reported to PA Callinan that his right arm had become progressively worse over the last two months while working. See Court Docket No. 25-3.

         On March 7, 2016, Dr. Jeffrey Buncher opined that Plaintiff had a sprain of the joints and ligaments of unspecified parts of his neck, and a “strain unsp musc/fasc/tend at shldr/up arm, unsp arm”. Plaintiff received a plan of hot or cold packs therapy, electric stimulation therapy, and massage therapy. See Court Docket No. 24-6. Plaintiff followed up for additional therapy on March 7th, 15th, March 17th (where an assessment of lumbar sprain was also listed), March 23rd, March 24th, April 7th, April 14th, April 18th, and April 19');">19th. See Court Docket Nos. 24-7 through 24-15. On April 7, 2016, Plaintiff also had a follow up appointment with PA Callinan, who opined that Plaintiff had bilateral SI joint tenderness. Although Plaintiff's musculoskeletal exam was normal, PA Callinan found that his extremities reflected a decreased grip on the right side and he had right hand weakness, weak intrinsics involving the index and middle finger, and his wrist extension had weakness. With regard to treatment, PA Callinan noted that she was awaiting the lumbar MRI results, while the Cervical radicultiis MRI reflected crowding of the right C7 nerve with pannus formation seen on C1. She indicated that she would consult with a radiologist about that finding. She further opined that Plaintiff's physical exam findings did not correlate with his level of weakness and noted that she would evaluate with EMG/NCS of the right arm. Finally, she noted that Plaintiff should continue with therapy and that his work status was light duty. See Court Docket No. 24-16; see also Court Docket No. 24-7.

         In the interim, Dr. Buncher completed a doctor's report[4] of work status and restrictions starting on March 3, 3016, which included left hand work only[5], no lifting, no repeated bending/stooping, and no continual standing/walking/sitting/chairs. See Court Docket No. 24-2, p. 2. No indication is given on the form as to whether these were temporary or permanent restrictions, and the parties also dispute whether the Defendant had notice of these restrictions.[6] See discussion, infra.

         Notwithstanding these medical consultations, it is undisputed that Plaintiff continued working and performing his duties after the accident. See Jennie Blanton Affidavit, ¶¶ 8, 12-13; Plaintiff's Deposition, pp. 96-98. On May 27, 2016, Plaintiff was driving a company backhoe on a construction site when he ran into a company truck with the backhoe. After his accident involving the backhoe, Plaintiff was asked to take a urine test pursuant to the Defendant's company policy. See Jennie Blanton Affidavit, ¶¶ 12-13 & Exhibit D; Plaintiff's Deposition, p. 71 [See Court Docket No. 24-19');">19, p. 71]. The Defendant's drug policy, which Plaintiff signed, includes a provision that employees are required to undergo drug abuse urinalysis when involved in an on the job accident. See Court Docket No. 24-21, p. 9.[7] However, Plaintiff refused to take the urine test, sending a text message to Brian Blanton[8] (Jennie Blaton's son who served in an advisory role for the Defendant) which stated in the relevant section, “I AINT going back to the pen for ‘narcotics' I AINT getted screwed for an MRI and VA crap. Sorry brother, just got way more to (sic) loose than most as a felon with multiple ABHAN's and VA feds with their anti social behavioral BS. . . .” See Court Docket No. 24-20, p. 8. Brian Blanton then texted to Plaintiff, “Did you make it to your drug test?” After not receiving a response, he then texted to Plaintiff the following day that “I'm assuming you quit since you didn't show up today?” Plaintiff then responded that he was at his weekend job and asked if he could return certain things the following day. After Brian responded that no one would be there the next day, Plaintiff stated that he would be there soon and inquired about calculation of hours accumulated for sick leave. Brian texted back that the “payroll department will buy back your leave.” See Court Docket No. 24-20, p. 9. Although Plaintiff never returned to work, Brian and Plaintiff continued texting with each other over the next few days, with Brian texting to the Plaintiff on June 2, 2016: “You know we had no plans to fire you, you quit. We were going to keep you on. You didn't give us a chance to even talk to you about it. Post incident drug screens are a standard thing for anyone who has an incident . . . .” Id., at p. 11. However, although the Defendant asserts that Plaintiff quit by refusing to take the drug test and not returning to work, Plaintiff testified that he was fired by Jennie Blanton in her office (although he also testified that he could not remember the date or time this occurred). See Plaintiff's Deposition, p. 70 (Court Docket No. 25-1, p. 8).

         Plaintiff contends in this lawsuit that he was fired because of a disability (various postural and lifting restrictions due to ulnar nerve damage) and out of retaliation for requesting reasonable accommodations for his condition. 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. 19');">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. 19');">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 a disability. 42 U.S.C. § 12112. Although Plaintiff only alleges a “First Cause of Action” in his Complaint, Plaintiff actually asserts 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 retaliated against him and wrongfully terminated him on the basis of his disability and his requests for accommodations. Complaint, ¶ ¶ 30-35. See also Plaintiff's Brief, pp. 3, 9.[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).[10]

         With respect to the first requirement, the term "disability" is defined as, a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, b) a record of such impairment, or c) being regarded as having such an impairment. 42 U.S.C. § 12102(1); see Acosta, 2017 WL 1173583, at * 10; Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 467 (4th Cir. 2002).[11] A "major life activity" is defined as a basic activity that an average person can perform with little or no difficulty, such as walking, hearing, speaking, learning, breathing, standing, lifting, seeing and working. Appendix to 29 C.F.R. § 1630.2(I); see Bruncko v. Mercy Hosp., 260 F.3d 939, 941 (8th Cir. 2001); Dutcher v. Ingalls Shipbuilding, 53 F.3d 723-727, n. 7 (5th Cir. 19');">1995); Gupton v. Virginia, 14 F.3d 203, 205 (4th Cir. 19');">1994), cert. denied, 513 U.S. 810 (19');">1994) (Rehabilitation Act).[12] Major life activities also include caring for oneself, eating, concentrating, thinking, and sleeping. See 42 U.S.C. § 12102(2)(A). As for the “regarded as” component for disability,

[p]rior to Congress' passage of the ADA Amendment Act of 2008, Pub. L. No. 110-325, § 2(b)(1)-(6), 122 Stat. 3553 (2008) (“ADAAA”), there were two ways in which a person could be regarded as being disabled: “(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities.”Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119');">19 S.Ct. 2139, 144 L.Ed.2d 450 (19');">1999). However, with the passage of the ADAAA, which became effective January 1, 2009 and overruled Sutton, “[a]n individual meets the requirement of ‘being regarded as having such an impairment' if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived . . . impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §12102(3)(A).

Mohney v. Pennsylvania, 809 F.Supp.2d 384, 400 n. 14 (W.D.Pa. 2011).

         However, Plaintiff's ADA claim for failure to accommodate cannot proceed under the “regarded as” criteria, since the failure to provide a “reasonable accommodation” to any employee whom the employer merely regards as disabled is not a claim covered under the ADAAA. See 42 U.S.C. § 12201(h)[emphasis added]; Fulp v. Columbiana Hi Tech, LLC, No. 16-1169, 2018 WL 1027159, at * 10 (M.D. N.C. Feb. 21, 2018)[same]. Therefore, Plaintiff may only proceed by either showing he has a) a physical or mental impairment that substantially limits one or more of his major life activities, or b) a record of such impairment.

         Plaintiff contends that as a result of his December 2015 accident, he has weakness on his left side and that he can do very little bending, stooping, walking, and standing. See Plaintiff's Deposition, p. 67. Plaintiff further contends that Dr. Buncher corroborated his limitations in the work status form with return to work restrictions starting on March 3, 2016. As noted, the restrictions on this form include left hand work only[13], no lifting, no repeated bending/stooping, and no continual standing/walking/sitting/chairs. See Court Docket No. 24-2, p. 2. No indication is given on the form as to whether these were temporary or permanent restrictions, and when Plaintiff was asked in his deposition if “Dr. Woodward”[14] told him whether these restrictions were temporary or permanent, Plaintiff testified that he did not remember. He did testify that his injury still bothers him on his left-hand side and that his left arm is very weak along with his shoulder and neck. See Plaintiff's Deposition, pp. 53-54. However, the evidence shows that on February 22, 2017, Plaintiff completed a post-employment medical questionnaire with H&J Contracting of SC, LLC, which had numerous inquiries including, but not limited to, a series of questions, including, but not limited to: “Any permanent physical condition which constitutes a 20% impairment of a member or of the body as a whole? Any injury, operation or any disability not mentioned in the above questions, one or more back injuries or a disease process resulting in disability over a total of 120 days?”, to which Plaintiff responded “no”. In addition, in response to the question: “Do you have or have you ever had” a variety of cited injuries or medical conditions, the only injuries Plaintiff listed were “military injury/healed”. He also stated that he had no permanent physical impairments as a result of any prior industrial accident. See Court Docket No. 24-18. Therefore, the evidence reflects that Plaintiff himself represented that he did not have any permanent injuries or impairment.

         In arguing that Plaintiff did not have a “disability” under the statute, Defendant relies heavily on the Fourth Circuit's holding in Reynolds v. American Nat'l Red Cross, 701 F.3d 143 (4th Cir. 2012), where the Plaintiff, who had a fifteen pound weight limitation, was found not to be under a disability. However, the Defendant acknowledges that the Reynolds Court found that the ADAAA was not retroactive, and that Plaintiff Reynolds' determination of non-disability was under the pre- ADAAA standards.[15] See Defendant's Memorandum in Support of Summary Judgment, p. 9. As was previously noted,

The ADAAA . . . was enacted “with the explicit purpose of broadening the protections of the [ADA] and rejecting certain Supreme Court law interpreting the ADA's definition of disability.” Marsh v. Terra Int'l (Oklahoma), Inc., 122 F.Supp.3d 1267, 1276-77 (N.D. Okla. 2015) (citing Pub.L. No. 110-325, 122 Stat. 3553); see Crowell [v. Denver Health and Hosp. Authority], 572 Fed.Appx. [650, ] 658 [(10th Cir. 2014)](quoting 42 U.S.C. § 12102(4)(A)) which states that “[t]he definition of disability in this chapter shall be construed in favor of broad coverage ...to the maximum extent permitted by the terms of this chapter”); see Carter [v. Pathfinder Energy Servs. Inc.], 662 F.3d [1134, ] 1144 [(10th Cir. 2011)](“Congress amended the ADA in 2008 to correct what it viewed as an overly restrictive interpretation of the statute's terms that had been adopted by the Supreme Court in [Sutton v. United Air Lines, Inc., 527 U.S. 471 (19');">1999) and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) ].”) (internal quotation marks omitted); Allen v. SouthCrest Hosp., 455 Fed.Appx. 827, 834 (10th Cir. 2011) (discussing the “more favorable definition of disability as clarified by the [ADAAA] and applied in the new regulations promulgated under the ...

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