R. BRYAN HARWELL, District Judge.
The plaintiff filed this action on October 29, 2010 alleging causes of action for violations of the Americans with Disabilities Act (ADA)
This matter is now before the undersigned for review of the Report and Recommendation ("the Report") filed by United States Magistrate Judge Shiva V. Hodges, to whom this case had previously been assigned pursuant to 28 U.S.C. § 636 and Local Rule 73.02(B)(2)(g). In her Report, Magistrate Judge Hodges considers the issues and recommends that the motion be granted on all claims. Plaintiff filed objections to the Report on November 30, 2011. Defendant filed a Reply to the objections on December 17, 2011.
In conducting its review, the Court applies the following standard:
Legal Standard for Summary Judgment
Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party has the burden of proving that judgment on the pleading is appropriate. Once the moving party makes the showing, however, the opposing party must respond to the motion with "specific facts showing there is a genuine issue for trial." Fed. R. Civ. P. 56(e).
When no genuine issue of any material fact exists, summary judgment is appropriate.
In this case, defendant "bears the initial burden of pointing to the absence of a genuine issue of material fact."
Moreover, "once the moving party has met its burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show there is a genuine issue for trial."
The Court will summarize the facts viewing the evidence in a light most favorable to the plaintiff without making credibility determinations. The plaintiff (Anderson) was hired by the defendant (Roche) in September of 2006. At the time of her discharge in July of 2009, she held the position of Process Technician II. Her direct supervisor was James Lewis (Lewis). Mike Blocker (Blocker) supervised the team leaders such as Lewis. Plaintiff Anderson had been treated for migraine headaches since about 2004, before her employment with Roche. At Roche, she had previously had "a couple of incidents at work where it just came on and I was a little disoriented and I had to go to medical." (Dkt # 35, p. 37; Anderson Depo., p. 36). She consulted a physician about the migraines and was approved by Roche for intermittent leave under the FMLA in March of 2009. (Dkt. #36-4, p. 14). The "Employer Request of Family Medical and/or Personal Leave Form provides:
With regard to the events leading to her termination, Anderson testified that she took FMLA leave due to migraines for the work days between June 24 and June 30, 2009. She called Lewis each work day and notified him that she would not be coming to work. She testified that Lewis called her at home during the week of June 24th late at night during third shift (11:30 p.m) concerning how to code her absence on her timesheet. He called her twice on her cell phone which she had on silent and once on her house phone. She told him that she did not appreciate him calling her at a late hour and awakening her. On the morning of June 30, she informed him that she had a doctor's appointment at 3:00 p.m. that day and that she would therefore not be at work that day. (Her shift was to start at 3:00 p.m.) She told him that she would call after her doctor's appointment to let him know her prognosis. On June 30, Lewis called her at 8:00 p.m.
Plaintiff telephoned the company nurse, Ms. Linda Byers, on Sunday, July 5 to let her know she would be back at work on Monday, July 6. Plaintiff told her that her doctor had not put her on any work restrictions and that she was not taking any medications. Plaintiff brought Byers a doctor's excuse. Plaintiff worked during the week of July 6 without taking medication and only experienced low-grade headaches.
Plaintiff had complained to Blocker about Lewis bothering her while she was out sick, and on July 7 he called her to his office. Ms. Carla Montgomery, HR Generalist, was also present. At that meeting, she told Blocker and Montgomery about the calls that she had received from Lewis and that "I felt like I really wasn't covered under my FMLA because I just kept getting calls over and over again." (Dkt # 35, p. 81, Depo. p. 80). She stated that Lewis "told me after repeated calls that he was not concerned with my medical condition, and he did not need that excess information. His concern was to cover his shift." (Dkt # 35, p. 213; Depo., p. 212.) She "expressed to them that I wanted to work, but I also need relief for my headaches, for my migraines, and that my doctor was working with me to get me some relief for that. I just needed time to work through that." (Dkt # 35, p. 83, Depo. p. 82). She also requested the accommodation of being allowed to eat a small snack or have a break if she felt a migraine coming on. (Dkt # 32-4, p.19; Depo. p. 173). She stated that Blocker told her that Lewis was just trying to cover his shift but that they would talk to him about a better procedure to follow in the future.
On July 10, she met with the company's on site physician, Dr. Carolyn Reynolds, concerning the migraines and the requested accommodations, including "the time to find the right medication". (Anderson Affidavit, ¶ 3).
On the afternoon of July 10, Anderson saw her regular doctor, Dr. Patrick Jebaily. At the appointment, he prescribed a new medication, Imitrex, 100 milligrams, for the migraines. She started taking the Imitrex on July 12. (Dkt # 35, p. 85, Depo., p. 84). She came into work on third shift on July 12 at 11:00 p.m. She took the Imitrex at approximately 11:30 or 11:45 p.m. The Imitrex appeared to work because she does not recall having any headaches on that shift. During that week, she took one Imitrex per night after the shift change with a small snack for four nights. She did not take one on the fifth night of that week. (Dkt # 35, p. 87, Depo. p. 86). Counsel for Roche asked her if she felt drowsy or sluggish after taking the Imitrex. She stated that she did not remember.
Dkt # 35, p. 90, Depo. p. 89.
Lewis was on vacation that week, and Mike Brown supervised Plaintiff while he was away. On the last day of the week, July 16, Brown, called her to his office and told her that "[t]he eating has to stop." (Dkt Entry # 35, p. 94, Depo. p. 93). She explained that she needed to eat a small snack with her medicine. He also told her that the sleeping had to stop and that she had "been observed sleeping four to five hours out of an eight-hour shift for four nights."
She attempted to speak with Blocker the next morning at the end of her shift, but he was not at work. On Monday of the following week she again tried to talk to him, but he was not in his office. She worked her normal shift and did not take Imitrex that day. At about 10:00 p.m., Lewis called her to his office. He told her that he had been in meetings all day concerning her. He told her to come to a meeting on Tuesday with himself, Blocker, and Montgomery. He also told her that he did not mean any harm in making the telephone calls to her, and she believed that he was being sincere. Lewis also told her that he was going to have to dock her pay because of a "safe work permit" that she had written incorrectly. She stated that she had received no training on writing these permits but that she believed that she was preparing them correctly.
Present at the meeting the next day, July 21, were Anderson, Lewis, Montgomery, and Blocker. Blocker asked her to explain her sleeping on the job. She stated that she explained that she did not recall sleeping but that she had started a new medication that week; that she needed to take it with a small snack; and that Mike Brown had told her she could not take a break. She was then asked if the medication had been cleared by medical. She told him that it had not because her doctor had told her that she should be able to work while taking it. They told her that there was a policy that new medications must be disclosed. She told them that she was alarmed by the fact that she had apparently lost about 20 hours total and that "the only way that I could have lost any time like that is because of this new medication that I have never been on." (Dkt # 35, p. 112; Depo., p. 111). She stated that, if someone had told her that she was sleeping, she would have stopped taking the Imitrex and consulted her doctor, which was what she did after she learned of the problem. She also again requested the accommodation of being given time off to get her medicine regulated and to be allowed to have a snack and break when the migraines came on. (Dkt # 32-4, p. 20, Depo., p. 174).
Her doctor's office was not able to give her an appointment until shortly after the meeting with Blocker, so she asked Roche for time for her doctor to work with her to get on the right type of medicine since she had only been taking the Imitrex for a week. The Roche officials told her that "because I had not disclosed the medication per Roche policies, that would not be a consideration for me sleeping, although it could have caused me to sleep." (Dkt #35, p. 116, Depo. p. 115). She was suspended for three days while an investigation was performed. During the three-day suspension, Anderson received a call from Linda Byers, the company nurse, inquiring what medications she had been prescribed when she went to the doctor. Anderson told her that she was taking a new medication, Imitrex, and that the doctor had also given her a refill prescription for Phenergan, a nausea medication. (Dkt #32-4, p3; Depo. p. 125). She stated that she never took the Phenergan while she was working. However, she said that she was not sure if she told Ms. Byers this because her question was what medications had been prescribed for her.
She was told to meet the Roche officials at 3:00 pm on July 24. At the meeting, they told her that she was being terminated for sleeping on the job, taking medicine that she knew would make her sleepy, and failing to have the medicine cleared by medical staff before taking it.
Dr. Patrick Jebaily states by way of affidavit that Imitrex can cause drowsiness, although it does not have that effect for most patients. He further states: "It is also not medically unreasonable given its chemistry, to conclude that Imitrex could cause other symptoms related to brain functions, including memory loss."
After the termination, HR representative Montgomery prepared typewritten notes regarding the suspension meeting. In those notes, she states, "I asked her to clarify that she was on a medication that makes her sleepy. She indicated that she was. I asked if Linda had cleared the medication, and she said no."
Plaintiff pursued the company grievance process and subsequently filed a complaint with the South Carolina Human Affairs Commission (SHAC). The company's position paper before SHAC, prepared by its attorney and approved by company officials, stated inter alia that "Roche terminated Ms. Anderson because she ignored strict Company policies that require employees to report medication that could alter their work performance and that prohibit sleeping during a shift." (Dkt #37-5, p. 19; letter, p. 9). During the course of this litigation, however, Roche officials admitted that the policy regarding disclosure of medications had not even been adopted until after Anderson's termination. It also appears from the record that there may have been some confusion about her previous FMLA certification at the time of her termination. (See Plaintiff's Brief in Opposition to Motion for Summary Judgment at p. 33.)
Grounds for Defendant's Motion for Summary Judgment
Defendant has moved for summary judgment on the following grounds:
Dkt. #32-1, p. 10.
AMERICANS WITH DISABILITIES ACT CLAIMS
I. Disparate Treatment Claim under the ADA
In order to establish a
In support of the fourth element of the prima facie case, the plaintiff asserts the following evidence: comments by the supervisor, Lewis, in the telephone calls; the warning from the co-worker, Casey Terry, that Defendant would be watching her; and the "fabricated policy". Plaintiff asserts that the Terry evidence is admissible as an admission under Fed. R. Evid. 801(d)(2) or as a statement of intent, plan, motive, and design under Rule 803(3). Finally, Anderson emphasizes Roche's repeated reference to a policy requiring disclosure of medications by employees, a policy that was not adopted until two months after Anderson's termination. In attempting to show that the employer's legitimate, nondiscriminatory reasons for the discharge were pretextual, Anderson refers to the above evidence as well as allegedly similarly situated employees who engaged in misconduct but who were not terminated.
Defendant asserts that discriminatory intent cannot be shown by the fact the supervisor contacted an employee on leave about when she planned to return. Roche also points out that these contacts were made before Lewis knew about the FMLA leave that had been approved and that, once Anderson made him aware of her doctor's advice, he did not contact her again for the remainder of her leave. As to the alleged out of court declaration by the co-worker that Anderson was being watched, Defendant states that Terry has been listed as a witness since the beginning of the case, but Anderson has neither deposed him nor obtained an affidavit from him. Roche contends that Rule 801(d)(2)(D) requires a statement by a party's agent to be made "concerning a matter within the scope of the agency or employment" and that Terry, who was not a member of management, was not speaking about a matter within the scope of his employment. Roche also contends that Anderson raised her argument regarding intent, plan, motive, and design for the first time in her objections and that the rule refers to the declarant's state of mind and not the state of mind of Roche. As to the "fabricated policy", Roche admits that it erroneously stated in its initial position statement to SHAC that the non-disclosure of medications violated a written company policy. However, Roche contends that it has always asserted Anderson was discharged for sleeping on the job as stated in the written termination paper and that sleeping on the job is considered to be wilful neglect of duty under company policy. (Blocker Depo. Ex. 4, Montgomery Dep. Ex. 11). Finally, Defendant contends that the plaintiff has not shown any valid comparators.
Assuming without deciding that Anderson has presented sufficient evidence for a prima facie case, the Court finds that she has not established pretext. As to the telephone calls by Lewis, Plaintiff later stated that she did not believe that he meant her harm, thus acknowledging he harbored no discriminatory intent. (Dkt. # 35, p. 107, Depo. p. 106). The alleged warning from the co-worker, Terry, was inadmissible hearsay for the reasons argued by the defendant. The defendant's verbal reliance on the non-existent policy requiring disclosure of medications cannot be used as evidence of pretext because it was not inconsistent with the justification for the discharge of the plaintiff having been seen sleeping on the job. When the reasons given by an employer change over time but are not inconsistent, pretext has not been shown.
Additionally, Anderson's comparator evidence is inadequate to establish pretext. Anderson alleges that she routinely saw other employees on third shift with their "heads down and eyes closed" and that these employees were not disciplined. (Anderson Affidavit, ¶ 12, 14). However, Anderson does not indicate the names of the other employees, whether supervisors were made aware, and whether the employees were sleeping and if so for how long.
"The similarity between comparators and the seriousness of their respective offenses must be clearly established in order to be meaningful."
Another incident relied on by the plaintiff is the consumption of alcohol by Brown and another Process Technician three years earlier during their lunch break and returning to work. Both employees were suspended and not fired. Anderson asserts that this is a valid comparison to her situation because it involved "being under the influence of a drug in the workplace." (Objections, p. 22). This conduct was not similarly situated under the above standard. Plaintiff was seen sleeping while on the job, and the other two employees were drinking off the premises. Although some employers would issue the same discipline for both incidents, or harsher discipline for alcohol consumption than sleeping on the job, the Court does not sit as a "super personnel department."
On the basis of the above
B. Mixed Motive Analysis of ADA Disparate Treatment Claim
"[I]f a plaintiff claiming discrimination under § 12132 demonstrates that his or her disability played a motivating role in the employment decision, the plaintiff is entitled to relief."
II. ADA Accommodation Claim
Plaintiff also alleges in her first cause of action under the ADA a failure to accommodate claim. The
The regulations further provide that "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 limitations." 29 C.F.R. § 1630.2(o)(3). In
The Court finds there are disputed issues of fact as to whether both parties met their burdens of engaging in the interactive process in good faith and whether that caused a failure to accommodate the disability. The evidence could support a finding that Anderson and Roche were engaged in an interactive process of addressing the migraine condition. That process began in January of 2009 when the company sent the letter requesting that she apply for intermittent leave. It continued into March 2009, when the leave was approved and into June and early July of 2009 when she took FMLA leave. The process continued with conversations among Anderson, Blocker, Montgomery and Reynolds during the July 6, when she requested time to work with her doctor to obtain relief for the migraines and also to be allowed to eat a small snack or have a break if she felt a migraine coming on. She further testified that she requested accommodations including time to find the right medication in the meeting on July 10 with the company's on-site physician, Dr. Carolyn Reynolds. Finally, she testified that she again requested the accommodations at the "suspension meeting" on July 21. Viewing the evidence in a light most favorable to the plaintiff, instead of accommodating her disability, Roche terminated her employment on July 24. In the words of the Fourth Circuit in
III. ADA Retaliation Claim
Magistrate Judge Hodges found as to the ADA retaliation claim that summary judgment should be granted because Anderson has not shown that she engaged in a protected activity before her termination.
I. FMLA Entitlement Claim
It is "unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise" an employee's rights under the Family Medical Leave Act. 29 U.S.C. § 2615(a)(1). Viewing her entitlement claim in a light most favorable to the plaintiff, the evidence shows that Anderson's request for intermittent leave was approved in March of 2009. She took intermittent leave under the FMLA in June of 2009. There appears to be a factual dispute as to whether Plaintiff later made other requests for leave, including one on July 7 and another on July 21 (both dates prior to her termination) and at the termination meeting on July 24. Again, there appears to be some evidence of a miscommunication or confusion about her having a previous FMLA certification at the time of her termination. Defendant contends that it did not deny Plaintiff any requested FMLA leave, and Plaintiff disputes this. She says that, instead of allowing her to take FMLA leave, she was terminated. See Plaintiff's Supplemental Memorandum in Opposition to Motion for Summary Judgment, Dkt. # 45. Therefore, the Court denies the motion for summary judgment as to this claim.
II. FMLA Retaliation Claim
An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave. . . Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions." 29 C.F.R. § 825.220(c). The Fourth Circuit has set forth the analytical framework for FMLA retaliation cases in which the employee has no direct evidence of discrimination.
As to the FMLA retaliation claim, the evidence taken in a light favorable to Anderson shows that she has satisfied her
For the foregoing reasons, the undersigned adopts the Report and Recommendation of the Magistrate Judge in part and respectfully declines to adopt it in part. The defendant's  Motion for Summary Judgment is granted as to the ADA disparate treatment and retaliation claims and as to the FMLA retaliation claim. The motion is denied as to the failure to accommodate claim under the ADA and as to the FMLA entitlement claim.
The parties are instructed to mediate this case within two (2) weeks from the date of this order. The case will be set for trial during the Court's March 1, 2012 term.