United States District Court, D. South Carolina, Charleston Division
ANDREW R. BUTLER, Plaintiff,
PEPPERDAM CONSTRUCTION COMPANY, INC., Defendant.
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 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.
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
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.
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.
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.
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.
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.
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.
interim, Dr. Buncher completed a doctor's
report of work status and restrictions starting
on March 3, 3016, which included left hand work
only, 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. See
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. However,
Plaintiff refused to take the urine test, sending a text
message to Brian Blanton (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).
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
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).
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 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. The undersigned has
addressed each of these claims, in turn.
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,
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). 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). 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
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.
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, 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” 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.
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. See Defendant's Memorandum
in Support of Summary Judgment, p. 9. As was previously
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 ...