United States District Court, D. South Carolina, Columbia Division
REPORT AND RECOMMENDATION
E. Rogers, III, United States Magistrate Judge
action arises from Plaintiff's employment and termination
of employment with Defendant. Plaintiff asserts claims of
interference and retaliation in violation of the Family
Medical Leave Act (FMLA), 29 U.S.C. § 2601, et seq. and
discrimination and retaliation in violation of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12101, et
Presently before the court is Defendant's Motion for
Summary Judgment (ECF No. 33). All pretrial proceedings in
this case were referred to the undersigned pursuant to the
provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local
Rule 73.02(B)(2)(g), DSC. This report and recommendation is
entered for review by the district judge.
was hired by Defendant Halocarbon Products Corporation on
September 17, 1990, at the company's North Augusta Plant.
Pl. Dep. 11. Plaintiff was ultimately promoted to Assistant
Shift Supervisor and was responsible for supervising
production operators. Pl. Dep. 12, 14. As an Assistant Shift
Supervisor, Plaintiff's duties included insuring that
production operators followed standard operating procedures
and properly documented batch production records in the
manufacturing of oils, chemicals, and anesthetics. Pl. Dep.
15. Plaintiff requested FMLA leave in February of 2015, in
conjunction with his hospitalization for an abdominal aortic
dissection. Pl. Dep. 37, 98-99; FMLA Letter (Ex. 3 to Pl.
Dep.). Plaintiff was granted six weeks of FMLA leave and then
intermittent FMLA leave in association with this health
condition. Pl. Dep. 99; Pl. Aff. ¶ 24 (Ex. to Pl.
Resp.). His FMLA leave expired on February 3, 2016, and
Plaintiff was told via email to see Melissa Young, Human
Resources Specialist, for new FMLA paperwork if he needed it.
FMLA Email (Ex. C to Pl. Aff.).
the course of his employment with Defendant, Plaintiff has
participated in Defendant's drug testing program
approximately eight to ten times. Pl. Dep. 16; Substance
Abuse Policy (Ex. 22 to Hyman Dep.). Until October 28, 2016,
Plaintiff had never failed a drug test or had any other
issues. Pl. Dep. 17. On October 27, 2016, Defendant began
drug testing employees at its North Augusta Plant. Pl. Dep.
18. On October 28, 2016, Plaintiff called in sick to work
around 3:30 a.m., before his shift started, stating that he
did not feel well and would not be in to work that day. Pl.
Dep. 25-27. Ken McDowell, Defendants Director of
Environmental Health and Safety, and Kevin Hyman, Human
Resources Director, called Plaintiff while he was at home
sick and informed him of the random drug test and that he
would need to go to Urgent M.D., a local medical provider, to get
tested. Pl. Dep. 19. As instructed, Plaintiff went to Urgent
M.D. and took the drug test. Pl. Dep. 21.
November 1, 2016, McDowell called Plaintiff to tell him there
was a problem with his specimen from October 28, 2016, and he
would need to provide another specimen. Pl. Dep. 44. Urgent
M.D. contracts with LabCorp to process the specimens and
report the results. Hyman Dep. 11. Plaintiff's first test
came back as an “invalid” test result, reflecting
problems with the specific gravity and creatinine levels.
Oct. 28 Specimen Test Results (Ex. 9 to Pl. Dep.). McDowell
and Hyman both interpreted the result to mean that the
specimen Plaintiff was provided was “dilute.”
McDowell Dep. 33-34; Hyman Dep. 77-78. As a result, Urgent
M.D. stated they needed a second specimen from Plaintiff,
which he provided on November 2, 2016. McDowell Dep. 34;
Hyman Dep. 79; Pl. Dep. 43-44, 47. The lab report result for
the second specimen indicated that it was
“dilute.” Nov. 2 Specimen Test Results (Ex. 10 to
Pl. Dep.). McDowell considered a second problematic specimen
to warrant discharge under the substance abuse policy.
McDowell Dep. 52. McDowell contacted Hyman and Eric
Schoellkopf, Plant Manager, to discuss the matter. McDowell
Dep. 49. They concluded that, pursuant to the
policy, a diluted specimen should result in
discharge. McDowell Dep. 51-52; Hyman Dep. 89. Hyman believed
that Plaintiff did something to interfere with the test
results. Hyman Dep. 89. He testified that he reached that
conclusion because medical professionals opined that the two
samples collected from Plaintiff were not compliant and based
on information supplied by Plaintiff's physician that
drinking four bottles of water a day is not excessive and
would not over-hydrate him. Hyman Dep. 89. Hyman testified
that he and other employees also drank that much water and
their results were not anything similar to Plaintiff's.
Hyman Dep. 89. Hyman also testified that he knew through his
training that there were many ways an employee could
manipulate a drug test. Hyman Dep. 91. In addition, when
asked “would it be fair to say that this is a decision
that you make but you run it by the CEO to ensure there's
no problem with it, ” McDowell testified “I would
say it's a decision that's dictated by our
policy.” McDowell Dep. 51.
challenged his discharge through the appeals process
contained in the drug testing policy. Pl. Dep. 51. During the
appeals process, Plaintiff asserted he drank water with his
medications throughout the day and this may have diluted his
urine specimens. Pl. Dep. 64-65. He testified he sometimes
consumed up to 48 ounces of water a day, depending on his
activity level. Pl. Dep. 145. Like Hyman, the appeals
committee also concluded that others drank water at work and
had no difficulty with the test. Pl. Dep. 63; Hyman Dep. 89.
The committee rejected Plaintiff's argument and affirmed
his termination, Plaintiff applied for Social Security
disability benefits. Pl. Dep. 122-23. He filed for benefits
on September 20, 2017, and represented to the Social Security
Administration an onset date of November 2, 2016, the date of
his discharge from employment. Pl. Application for Disability
Insurance Benefits (Ex. B to Def. Motion). Plaintiff was
found to be disabled as of November 2, 2016, and eligible for
benefits beginning May of 2017. Notice of Award (Ex. C to
STANDARD OF REVIEW
Fed.R.Civ.P. 56, the moving party bears the burden of showing
that summary judgment is proper. Summary judgment is proper
if there is no genuine dispute of material fact and the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Summary judgment is proper if the
non-moving party fails to establish an essential element of
any cause of action upon which the non-moving party has the
burden of proof. Id. Once the moving party has
brought into question whether there is a genuine dispute for
trial on a material element of the non-moving party's
claims, the non-moving party bears the burden of coming
forward with specific facts which show a genuine dispute for
trial. Fed.R.Civ.P. 56(e); Matsushita Electrical
Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574
(1986). The non-moving party must come forward with enough
evidence, beyond a mere scintilla, upon which the fact finder
could reasonably find for it. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). The facts and
inferences to be drawn therefrom must be viewed in the light
most favorable to the non-moving party. Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991).
However, the non-moving party may not rely on beliefs,
conjecture, speculation, or conclusory allegations to defeat
a motion for summary judgment. Barber v. Hosp. Corp. of
Am., 977 F.2d 874-75 (4th Cir. 1992). The
evidence relied on must meet “the substantive
evidentiary standard of proof that would apply at a trial on
the merits.” Mitchell v. Data General Corp.,
12 F.3d 1310, 1316 (4thCir. 1993).
that a genuine dispute of material fact exists, a party may
not rest upon the mere allegations or denials of his
pleadings. See Celotex, 477 U.S. at 324. Rather, the party
must present evidence supporting his or her position by
“citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A); see also Cray Communications,
Inc. v. Novatel Computer Systems, Inc., 33 F.3d 390
(4th Cir. 1994); Orsi v. Kickwood, 999
F.2d 86 (4th Cir. 1993); Local Rules 7.04, 7.05,
FMLA provides that “an eligible employee shall be
entitled to a total of 12 workweeks of leave during any
12-month period ... [b]ecause of a serious health condition
that makes the employee unable to perform the functions of
the position of such employee.” 29 U.S.C. §
2612(a)(1). The FMLA also prohibits an employer from
discriminating against an employee for asserting rights under
the Act. 29 U.S.C. § 2165(a)(2). “The FMLA creates
two types of claims: (1) interference claims, in which an
employee asserts that his employer denied or otherwise
interfered with his substantive rights under the Act; and (2)
retaliation claims, in which an employee asserts that his
employer discriminated against him because he engaged in
activity protected by the Act.” Gleaton v.
Monumental Life Ins. Co., 719 F.Supp.2d 623, 633 n. 3
(D.S.C. 2010) (internal citation omitted). Plaintiff asserts
both interference and retaliation claims in this action.
alleges that Defendant “denied or otherwise interfered
with Plaintiff's substantive rights under the
FMLA.” Compl. ¶ 40. To establish a claim that an
employer interfered with an employees rights under FMLA, an
employee must demonstrate that: “(1) he is entitled to
an FMLA benefit; (2) his employer interfered with the
provision of that benefit; and (3) that interference caused
harm.” Adams v. Anne Arundel ...