ANDERSON v. ROCHE CAROLINA, INC.
Natasha Anderson, Plaintiff,
v.
Roche Carolina, Inc., Defendant.
4:10-CV-02792-RBH.
United States District Court, D. South Carolina, Florence Division.
February 3, 2012.
ORDERR. 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)1, 42 U.S.C. § 12101, et seq. and the Family Medical Leave Act (FMLA)2, 15 U.S.C. § 1681b against her former employer, Roche Carolina, Inc. and a human relations employee, John Farmer. Farmer was dismissed by stipulation of the parties. Before the Court for consideration is the Defendant's Motion for Summary Judgment. 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:
The Magistrate Judge makes only a recommendation to the court. The recommendation has no presumptive weight. The responsibility to make a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The court is charged with making a de novo determination of those portions of the Report to which specific objection is made, and the court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or recommit the matter with instructions. 28 U.S.C. § 636(b)(1). The court is obligated to conduct a de novo review of every portion of the Magistrate Judge's report to which objections have been filed. Id. However, the court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
1. The First Cause of Action is for both alleged discriminatory discharge of a disabled individual under the ADA and also failure to accommodate the disability under the ADA. The Second Cause of Action is for retaliation under the ADA.
2. The Third Cause of Action is for wrongful denial of FMLA benefits. The Fourth Cause of Action is for retaliation under the FMLA.
3. Plaintiff also stated that Lewis had called her house phone and her cellular phone several times before 8:00 p.m. She testified that he called her about ten times between June 24 and June 30. (Dkt # 35, Depo. p. 81).
4. Roche Policy No. 16 Discipline classifies offenses "of a more serious nature and which will generally warrant initial discipline such as suspension and/or immediate disciplinary termination" including "willful neglect of duty (including but not limited to, sleeping on the job)." (Dkt # 36-2, p. 15).
5. Roche contends that Anderson told Nurse Byers and included in her own handwritten notes that she took both Imitrex and Phenergan but that she later changed her story. See footnote 5 of Reply to Objections.
6. The Roche site manager, Hans Groeger, sent an e-mail on August 26, 2009 documenting his investigation of Anderson's termination and stating as justification the sleeping on the job, failure to disclose the new medication, and alleged admission by Anderson of her actions. (Dkt #36-8, p. 18).
7. Defendant contends that treating physician Dr. Jebaily is now being presented by Plaintiff as a Tier I expert who had not been previously disclosed as such since his expert testimony goes farther than simply his treatment of Plaintiff.
8. Roche does not contest the other elements of the prima facie case and thus does not take the position here that migraine headaches were not qualified disabilities under the Act. See Memorandum in Support of Motion for Summary Judgment, page 10. ("Assuming arguendo, that Anderson had a cognizable disability under the ADA at the time of her termination, and conceding that her termination was an adverse action, Anderson nevertheless cannot establish a prima facie case of ADA discrimination.")
9. Defendant asserts that a more appropriate comparator was a Process Technician who was terminated for sleeping on the job, previous disciplinary actions of insubordination, and safety policy violations. Defendant contends that, unlike Brown, this employee engaged in the same behavior as Anderson, citing Ashworth Affidavit and Blocker Dep. 81-82).
10. Under a mixed motive theory, damages may not be awarded if the defendant shows that it would have taken the same action in the absence of the impermissible motivating factor. In such circumstances, relief is limited to declaratory and injunctive relief, costs, and attorney's fees.
11. See Plaintiff's Memorandum in Opposition to Motion for Summary Judgment, Dkt. #34, p. 14.
12. The plaintiff in Rhoads suffered from migraine headaches and asthma and was at times unable to work or care for herself. The Court found that she had failed to show that she was substantially limited in her ability to work. Rhoads was decided prior to the 2008 amendments to the ADA.
13. The employer is not required to provide the employee the accommodation which she requests or prefers but only "some reasonable accommodation." Crabill, 423 Fed. Appx. at 323, citing Crawford v. Union Carbide Corp., 202 F.3d 257 (4th Cir. 1999) (unpublished) (quoting Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th Cir. 1998).
14. Plaintiff argues in her brief as follows: "Plaintiff has alleged an FMLA denial-of-leave claim, and an FMLA retaliation claim. Complaint Paragraphs 59-60, 64-65. ADA claims in which the accommodation is `leave' have substantial overlap with FMLA claims. The preceding ADA arguments therefore apply with equal force to the FMLA claims and are incorporated herein." (Dkt. #34, p. 31).