Opinion
Civil Action 8:20-4379-TMC-KFM
05-20-2022
Latesha Carter, Plaintiff, v. Ascend Performance Materials[1] Holdings, Inc., Ascend Performance Materials Operations, LLC, collectively d/b/a “Ascend Performance Materials”, Defendants.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald United States Magistrate Judge
This matter is before the court on the plaintiff's partial motion for summary judgment (doc. 27), Ascend Performance Materials Holdings, Inc.'s ("Ascend Holdings") motion for summary judgment (doc. 56), Ascend Holdings' and Ascend Performance Materials Operations, LLC's ("Ascend Operations") (collectively "defendants") joint motion for summary judgment (doc. 57), and the defendants' amended motion to stay (doc. 35). Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and Local Civil Rule 73.02(B)(2)(g) (D.S.C.), all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
I. BACKGROUND AND FACTUAL ALLEGATIONS
Ascend Holdings is a Delaware corporation that serves as a parent company for Ascend Operations (docs. 56-35, Gerona decl. ¶ 4; 56-36 at 1; 56-1 at 1-2). Ascend Operations is a Delaware limited liability company that owns and operates manufacturing facilities throughout the world, one of which is in Greenwood, South Carolina (docs. 56-35, Gerona decl. ¶ 5; 57-2, Walters decl. ¶ 3). The plaintiff worked in the staple department at the Greenwood facility (doc. 57-2, Walters decl. ¶ 3). In July 2019, Ascend Operations promoted the plaintiff to the position of staple vacation and sick (“staple v&s”) (doc. 57-7 at 1). As a staple v&s, the plaintiff was responsible for covering for other employees who were on vacation or sick leave throughout the year, and thus, she was required to be able to perform all of the jobs within the staple department (doc. 57-8 at 1-2). Additionally, the staple v&s was required to be able to lift up to 50 pounds, push and pull buggies or carts up to 200 pounds, climb flights of stairs or ladders, and walk and stand for eight to 10 hours per day, among other duties (id.).
The plaintiff has plantar fasciitis, a painful tendon inflammation of the foot (docs. 27-2, Robinson dep. 18:2-7; 27-4, Whitehead decl. ¶ 4). The plaintiff testified in her deposition that her plantar fasciitis has, at times, affected her ability to walk, stand, and perform other daily routines (doc. 27-1, Carter dep. 48:13-17, 50:3-21). Prior to the incidents in question, the plaintiff was able to treat flare-ups of her plantar fasciitis with rolling her foot on ice, stretching, and using a boot while sleeping (id. at 50:25-51:18). However, in the latter part of 2019, the plaintiff experienced a flare-up that did not resolve as easily (id. at 50:25-52:2). The plaintiff testified that "the pain was unbearable," and thus, she submitted a request to take medical leave from work (id.; doc. 57-5 at 1). Ascend Operations approved the plaintiff's request in September 2019 (see docs. 27-7 at 1; 57-24 at 1). The first 12 weeks of her leave were designated as FMLA leave, beginning on September 3, 2019, and expiring on November 26, 2019 (docs. 27-7 at 1; 57-24 at 1; 57-26 at 1).
The Greenwood facility has its own onsite human resources team, which is led by a human resources manager, Dean Sigvertsen ("Mr. Sigvertsen"), and a senior human resources director, Lou Gerona ("Mr. Gerona") (docs. 56-48, Gerona dep. 6:14-7:10; 56-2, Walters decl. ¶ 5). The Greenwood facility also has its own on-site medical department with a physician, Dan Robinson, M.D. ("Dr. Robinson"), and a nurse, Janet Smith Drake ("Nurse Drake"), who were employed by a third-party who contracts with Ascend Operations (docs. 56-2, Walters decl. ¶ 6; 27-2). While the plaintiff submits that Dr. Robinson had the authority at the Greenwood facility to determine whether someone on medical leave could return to work, the defendants submit that Mr. Sigvertsen had this authority. The evidence reflects that Nurse Drake testified in her deposition that "Dr. Robinson makes the determination whether or not someone can return to work, are they capable of performing the essential functions of their job . . ." (doc. 27-3, Drake dep. 31:15-18). The plaintiff also provided in her declaration as follows:
In several documents in the record that predate Nurse Drake's marriage, she was referred to as Nurse Smith (doc. 27-3, Drake dep. 6:2-7). However, the undersigned will refer to Nurse Drake by her current name herein.
In each meeting I had with Dr. Robinson about returning to work, he told me that I could not return, and he did so without speaking to anyone, including Mr. Sigvertsen. Dr. Robinson did not take calls or leave the room when I was meeting with him. Nurse [Drake] may have been in the room, but that would be the only person with whom he would have spoken.(Doc. 59-14, Carter decl. 1). Moreover, Mr. Sigvertsen testified as follows:
Q. As the company senior HR manager, was it your opinion that the company had a right to refuse reinstatement to employees at the conclusion of an FMLA leave if the company-retained doctor didn't approve the reinstatement?
...
THE DEPONENT: As a part of any type of situation like that, we would always use the doctor's input as the deciding factor, so the answer would be yes.(Doc. 43-1, Sigvertsen dep. 114:13-21). Mr. Sigvertsen also testified that he recalled telling the plaintiff that she needed to get approved by Dr. Robinson to be fully released back to work (doc. 42-7, Sigvertsen dep. 48:20-49:7). However, Mr. Sigvertsen also testified that "[w]e take [Dr. Robinson's] recommendations very strongly in regards to ensuring the safety of individuals that would be returning to work" (id.) (emphasis added). Additionally, in his declaration, Mr. Sigvertsen provided that he "had authority to allow employees to return to work following a medical leave of absence[,]" he "would occasionally consult with . . . [Dr. Robinson] in order to make [his[ decision[,]" and "Dr. Robinson did not have the authority to make the actual return to work employment decisions himself" (doc. 42-2, Sigvertsen decl. ¶ 3).
The plaintiff argues that Mr. Sigvertsen's affidavit is a sham affidavit and notes that “‘[a] non-moving party cannot create a genuine issue of material fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party's earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity'” (doc. 43 at 3) (quoting Cleveland v. Pol'yMgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). However, for this to apply, “there must be a bona fide inconsistency.” Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 n.7 (4th Cir. 2001). Moreover, because “‘credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge' when ruling on a motion for summary judgment, . . . and, thus, to avoid infringing upon the province of the fact finder, striking affidavit testimony ‘must be carefully limited to situations involving flat contradictions of material fact.'” Bethea v. CSX Transp., C/A No. 4:11-cv-1569-RBH-TER, 2013 WL 4505418, at *1 (D.S.C. Aug. 21,2013) (quoting Okoli v. City of Baltimore, 648 F.3d 216, 231 (4th Cir. 2011); Mandegue v. ADT Sec. Sys., Inc., C/A No. ELH-09-3101,2012 WL 892621, at *18 (D. Md. Mar. 14, 2012)). Because Mr. Sigvertsen referenced Dr. Robinson's input as “recommendations” in his deposition, the undersigned declines to find that his declaration contains a clear and unambiguous bona fide inconsistency.
In September 2019, the plaintiff received two injections to treat her plantar fasciitis from Scott Whitehead, P.A. ("Mr. Whitehead"), her primary care provider at Pendergrass Family Health Center (docs. 27-1, Carter dep. 52:5-53:24; 27-4, Whitehead decl. ¶ 4). After the first injection, the plaintiff met with Dr. Robinson (docs. 27-1, Carter dep. 52:25-55:4; 57-22 at 1). However, the plaintiff was still having some pain, and Dr. Robinson did not permit her to return to work (id.). The plaintiff testified that Dr. Robinson noted that her condition could be a "recurrent issue" (id.). In Dr. Robinson's notes, he documented that the plaintiff "wants to go home" and "says that she can't stand or walk without pain" (doc. 27-8 at 1). Moreover, Dr. Robinson documented that he "placed her on medical leave until this is resolved - totally" (id.). Further, Nurse Drake documented that the plaintiff was "put [out of work] by plant physician" (id.).
The plaintiff subsequently received a second injection (doc. 27-1, Carter dep. 55:6-21). On September 17th, Mr. Whitehead referred the plaintiff to Mark Oliver, M.D. ("Dr. Oliver"), an orthopedic specialist (docs. 57-55, Carter dep. 55:22-56:6; 56-42 at 1-4; 27-4, Whitehead decl. ¶ 6). The plaintiff met with Dr. Oliver on October 7th, and Dr. Oliver referred her to John Kinard, DPT ("Dr. Kinard") for physical therapy for six to eight weeks (docs. 56-55, Carter dep. 57:8-13; 56-38 at 4). The next day, on October 8, Mr. Whitehead acknowledged Dr. Oliver's prescription of physical therapy and wrote the plaintiff a note to continue her leave of absence from work for this treatment (see doc. 57-63 at 22). The plaintiff then provided Ascend Operations with documentation regarding an extension of her leave, and Ascend Operations granted the plaintiff paid, non-FMLA leave for this time frame (docs. 57-16 at 3; 27-14 at 1; 57-22 at 1).
The plaintiff attended her first physical therapy appointment on November 6th, and Dr. Kinard examined her and gave her bands and a list of physical therapy exercises to use while she was at home (docs. 59-1, Carter dep. 59:3-7, 60:24-61:3; 59-3, Kinard dep. 13:1-7). The plaintiff testified in her deposition that she complained to Mr. Whitehead about her inability to afford physical therapy sessions, and Mr. Whitehead told her that she could do the exercises at home (doc. 59-1, Carter dep. 57:20-58:2). Mr. Whitehead also stated in his declaration that he remembered the plaintiff telling him that she had attended physical therapy but that she could not afford the sessions (doc. 27-4, Whitehead decl. ¶ 7). Moreover, Mr. Whitehead stated that he remembered telling the plaintiff that she could do stretching and therapy at home (id. ¶ 8). The plaintiff testified that she therefore performed the exercises that Dr. Kinard gave her twice per day at home (doc. 59-1, Carter dep. 61:8-11).
Subsequently, on November 20th, the plaintiff returned to Pendergrass Family Health Center, where she was examined by Locke Simons, M.D. ("Dr. Simons") instead of Mr. Whitehead (doc. 57-43 at 1-4). At the time of this appointment, the plaintiff reported that she was pain free and able to walk and stand (doc. 57-55, Carter dep. 48:20-49:6, 50:5-24, 102:4-16). Dr. Simons documented that the plaintiff should "continue efforts with icing, stretching, and padding foot . . ." (doc. 57-43 at 3). Moreover, on November 25th, Dr. Kinard issued a discharge of the plaintiff as a physical therapy patient due to her inactivity with regards to attending sessions and completing her plan of care (doc. 57-25 at 1-2).
On November 26th, the plaintiff spoke with Nurse Drake on the phone regarding returning to work on December 3rd, and Nurse Drake told her that she needed to obtain a return-to-work authorization (doc. 27-11 at 1). The plaintiff and Nurse Drake arranged for the plaintiff to bring in this authorization on December 4th, and Nurse Drake instructed the plaintiff to have the authorization state that the plaintiff could return on that date (docs. 27-12 at 2; 27-9 at 1). The plaintiff then obtained such authorization from Mr. Whitehead, which provided in relevant part: “Latesha Monique Carter has been under my care since 11/20/2019. She may return to work/school on 12/04/2019 with no restrictions. If you have any questions please feel free to contact office” (doc. 27-13 at 1).
The plaintiff presented this authorization to Dr. Robinson on December 4th (doc. 59-6, Robinson dep. 46:16-19). Notes from Dr. Robinson and Nurse Drake's meeting with the plaintiff reflect that the plaintiff stated that she had two remaining appointments -one with her orthopedic doctor and one with her physical therapist on December 18th (doc. 57-28 at 1). However, the plaintiff testified in her deposition that she never told Dr. Robinson or Nurse Drake that she had an outstanding physical therapy appointment (doc. 59-1, Carter dep. 102:16-23, 104:1-3). Dr. Robinson documented that the plaintiff stated that "she is doing much better and is pain free" (doc. 57-28 at 1). However, Dr. Robinson denied the plaintiff reinstatement and documented as follows:
The problem I have is: 1) most of her notes come from a PA at her PCP'S office, most of which are signed by non-clinical staff. 2) She hasn't been released by PT at SRH or by her Ortho specialist. 3) She wrote on her sheets that this problem has been an issue x 2 years, and is a repeat problem that got better at once at the 90 day mark.
...
[The plaintiff is] sent back home at this time, needs clearance from PT and Ortho- not the PCP.(Id.).
Dr. Robinson informed the plaintiff that she needed to get an authorization from Dr. Oliver to return to work (doc. 27-1, Carter dep. 96:16-97:11). The plaintiff was examined by Dr. Oliver the next day, December 5th (doc. 27-17 at 1-3). The plaintiff testified that Dr. Oliver told her that her foot was better and more flexible and that she could go about her normal life (doc. 59-1, Carter dep. 97:6-10). Further, Dr. Oliver documented:
Since I saw her 2 months ago, she has been working with physical therapy. She has obtained shoe inserts. She has also been off work per her family doctor. She reports this is really giving her a lot of relief with her symptoms. The right foot is no longer painful. The left has minimal pain. She is very pleased with her progress. She is participating in normal activities and is hoping to go back to work. She needs a note to clear[ing] her to do this. No other concerns. ...
At this point, she is essentially asymptomatic. She is eager to return to work. I think this is reasonable. She will continue to work on the home exercise program and stretching provided by physical therapy. She will wear shoe inserts to decrease some of the stress on her foot. She also understands that this can be a recurrent problem that may return in the future.(Doc. 27-17 at 2-3). Dr. Oliver then issued the plaintiff an authorization allowing her to return to work with no restrictions as of December 6th (doc. 27-18 at 1). This authorization was unsigned (id.).
The plaintiff testified that she delivered Dr. Oliver's note to Dr. Robinson, but he again told her that she could not return to work because her plantar fasciitis would be a recurring issue (doc. 27-1, Carter dep. 97:12-14, 98:12-18, 99:8-10). Further, the plaintiff testified that Dr. Robinson made this decision without examining her or consulting Mr. Sigvertsen (id. at 105:12-14; 59-15, Carter decl. ¶¶ 1, 7). Dr. Robinson subsequently testified in his deposition that his only concern about the plaintiff returning to work was a future flare-up of her plantar fasciitis (doc. 59-6, Robinson dep. 42:19-43:7, 61:2-6). Dr. Robinson also testified that he "was wondering, is this going to be a problem that's going to cause her pain and continued medical issues going on into December, January" (id. at 68:11-15, 76:11-21). Moreover, Dr. Robinson testified that he was concerned about authenticity since the note from Dr. Oliver was unsigned (doc. 57-60, Robinson dep. 75:19-76:21). Nurse Drake advised the plaintiff that she should get a sit-down or driving job because working on cement floors could cause a recurrence (doc. 59-1, Carter dep. 97:21-98:11). Moreover, Nurse Drake documented, "Would prefer to get PT progress notes and discuss with HCP before RTW to assure fitness for duty" (id.).
The defendants submit that Dr. Robinson subsequently sought documentation regarding the plaintiff's physical therapy progress (docs. 57-60, Robinson dep. 75:9-76:21; 57-25). This documentation reflected that the plaintiff was previously discharged from physical therapy for failing to complete her treatment plan (doc. 57-25 at 1-2). Nurse Drake then emailed Mr. Sigvertsen that the plaintiff had been released from her physical therapy in November for failing to attend sessions and that she did not have an appointment on December 18th (docs. 42-2, Sigvertsen decl. ¶ 5; 57-29 at 1). Mr. Sigvertsen then began an investigation (id.; doc. 43-1, Sigvertsen dep. 68:14-19). In addition to investigating the plaintiff's attendance at physical therapy, Mr. Sigvertsen also conducted an investigation into a department manager's accusation that the plaintiff was working at 7-Eleven while on leave (docs. 57-31 at 1; 59-19 at 1; 59-20 at 1). The plaintiff informed Mr. Sigvertsen that she had never worked at 7-Eleven and had not worked anywhere since she went on leave in September (id.). Regarding the plaintiff's physical therapy attendance, Mr. Sigvertsen had Letitia Rice ("Ms. Rice"), a supervisor, contact the plaintiff (docs. 42-2, Sigvertsen decl. ¶ 5; 57-29 at 1; doc. 43-1, Sigvertsen dep. 68:14-19). The plaintiff confirmed to Ms. Rice that she only attended one session because Mr. Whitehead said that she could do the rest of her therapy at home (doc. 43-4 at 3). Mr. Sigvertsen was also involved with interviewing the plaintiff on two occasions (docs. 56-61, Sigvertsen dep. 56:18-57:7; 57-55, Carter dep. 108:1-23, 111:10-113:11). In the second interview, in February 2020, the plaintiff again stated that she was able to do her physical therapy at home (docs. 57-31 at 1; 57-30 at 2; 57-32 at 1). However, the evidence reflects that Mr. Sigvertsen believed that the plaintiff told Dr. Robinson that she attended all but one of her physical therapy appointments (doc. 57-33 at 1). Additionally, Mr. Whitehead provided in his declaration that a doctor from the plaintiff's employer called him and told him that the plaintiff had not gone to physical therapy, and he then told the doctor that he was aware that she was doing the exercises at home (doc. 27-4, Whitehead decl. ¶ 11). After the investigation, the plaintiff's employment was ultimately terminated, effective March 10, 2020 (docs. 59-1, Carter dep. 119:6-10; 57-13 at 1-2). The defendants submit that this decision was made based on the plaintiff's dishonesty (doc. 57-13 at 2).
On January 20, 2021, the plaintiff filed an amended complaint, alleging interference in violation of the Family and Medical Leave Act ("FMLA"), retaliation in violation of the FMLA, discrimination in violation of the Americans with Disabilities Act ("ADA"), and unlawful medical inquiry under the ADA (doc. 9). On November 8, 2021, the plaintiff filed a partial motion for summary judgment as to liability on her ADA discrimination claim regarding her denial of reinstatement (doc. 27). The defendants filed a motion to stay the plaintiff's motion for summary judgment until after the dispositive motions deadline on November 22, 2021 (doc. 31). The plaintiff filed a response on the same day (doc. 32). On November 30, 2021, the undersigned issued a text order denying the defendants' motion to stay (doc. 36). Additionally, on November 29, 2021, the defendants filed an amended motion to stay (doc. 35). The plaintiff filed a response to the defendants' amended motion to stay on November 30, 2021 (doc. 37). The defendants then filed a response to the plaintiff's partial motion for summary judgment on December 13, 2021 (doc. 42). On December 19, 2021, the plaintiff filed a reply in support of her partial motion for summary judgment (doc. 43). The defendants filed a sur-reply on January 7, 2022 (doc. 53). Ascend Holdings then filed a motion for summary judgment on February 25, 2022 (doc. 56). Moreover, Ascend Holdings and Ascend Operations collectively filed a motion for summary judgment on the same date (doc. 57). On March 6 and 8, 2022, the plaintiff filed her responses (docs. 58; 59). The defendants filed replies on March 29 and 30, 2022 (docs. 63; 65). Accordingly, these matters are now ripe for review.
II. APPLICABLE LAW AND ANALYSIS
A. Amended Motion to Stay
As set out above, the defendants filed an amended motion to stay the court's consideration of the plaintiff's partial motion for summary judgment until after the dispositive motions deadline on January 10, 2022 (doc. 35). As this deadline has passed, the defendants' motion is moot.
B. Summary Judgment Standard
Federal Rule of Civil Procedure 56 states, as to a party who has moved for summary judgment: “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). As to the first of these determinations, a fact is deemed “material” if proof of its existence or nonexistence would affect the disposition of the case under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the district court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings; rather, he must demonstrate that specific, material facts exist that give rise to a genuine issue. Id. at 324. Under this standard, the existence of a mere scintilla of evidence in support of the plaintiff's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude the granting of the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id.
C. Ascend Holdings' Motion for Summary Judgment
Ascend Holdings argues that it is entitled to summary judgment on all of the plaintiff's claims because it was not her employer (doc. 56-1 at 1-2). The plaintiff, however, argues that Ascend Holdings and Ascend Operations were an integrated employer (doc. 58 at 3-12).
Under the ADA and the FMLA, a defendant must be a plaintiff's "employer" for a court to impose liability. See Hukill v. Auto Care, Inc., 192 F.3d 437, 441 (4th Cir. 1999), abrogated on other grounds by Arbaugh v. Y & H Corp., 546 U.S. 500 (2006); 42 U.S.C. §§ 12111(2), 12112(a); 29 U.S.C. § 2611(4)(A). The Court of Appeals for the Fourth Circuit has analyzed the issue of whether a parent company and its subsidiary can be collectively considered a plaintiff's single employer using the integrated employer test. See Hukill, 192 F.3d at 442. This test allows for a finding "that separate companies are so interrelated that they constitute a single employer" based on an analysis of the following elements: "(1) common management; (2) interrelation between operations; (3) centralized control of labor relations; and (4) degree of common ownership/financial control." Id. (citations and internal quotation marks omitted). However, while "no single factor is conclusive . . . control of labor operations is the most critical factor." Id. (citations omitted). Additionally, "[t]he entity [that] made the final decisions regarding employment matters related to the person claiming discrimination" is relevant to this analysis. Id. at 444. "Whether entities can be joined as a single employer is a question of fact." Yoo v. BMW Mfg. Co., LLC, C/A No. 7:17-03499-TMC-SVH, 2019 WL 1416882, at *5 (D.S.C. Mar. 29, 2019) (quoting Laurin v. Pokoik, C/A No. 02-civ-1938-LMM, 2004 WL 513999 (S.D.N.Y. Mar. 15, 2004)).
The integrated employer test, which is applicable when examining the relationship between a parent and subsidiary, is distinct from the joint employer test, in which “one employer while contracting in good faith with an otherwise independent company, has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Butler v. Drive Auto. Indus. of Am., Inc., 793 F.3d 404, 408-09 & n.3 (4th Cir. 2015) (citations and internal quotation marks omitted).
As an initial matter, prior to their analyses involving application of the integrated employer test, both the plaintiff and Ascend Holdings argue that application of this test is unnecessary here. The plaintiff submits that the integrated employer test is unnecessary because there is direct evidence that Ascend Holdings was her employer, while Ascend Holdings argues that the test should not be used because the purpose of the test involves circumstances that are not present here (docs. 58 at 1-3; 56-1 at 8-10). However, neither party has cited any binding authority for their propositions to warrant departure from the test routinely recognized within this circuit when dealing with two defendants in a parent/subsidiary relationship. See e.g., Butler, 793 F.3d at 408 n.3; Hukill, 192 F.3d at 441-44; Sibert v. Raycom Media, Inc., C/A No. 3:17-cv-3435-CMC-KDW, 2018 WL 3132411, at *6-7 (D.S.C. Mar. 19, 2018), R&R adopted by 2018 WL 1870521 (D.S.C. Apr. 19, 2018); Briggs v. Low Country Home Med. Equip. Co., C/A No. 4:14-cv-705-PMD-KDW, 2015 WL 13733954, at *4-7 (D.S.C. Aug. 31,2015), R&R adopted by 2015 WL 8665346 (D.S.C. Dec. 14, 2015). Thus, the undersigned will apply the integrated employer test herein.
Ascend Holdings also argues that there exists a strong presumption that it is not the employer of Ascend Operations' employees (docs. 56-1 at 15-16; 63 at 5-7). However, while there are some non-binding cases standing for this proposition, Ascend Holdings has failed to identify any binding precedent providing for this presumption in the integrated employer context. Significantly, this presumption was not recognized in Hukill when the Fourth Circuit applied the integrated employer test. Nevertheless, even if this presumption were applied, the undersigned would reach the same result explained herein.
1. Common Management
With respect to common management, "courts look to whether the separate corporations share a common manager who runs day-to-day operations and has the authority to hire and fire employees." Gilbert v. Freshbikes, LLC, 32 F.Supp.3d 594, 603 (D. Md. 2014) (citing Hukill, 560 F.2d at 392).
Here, the Greenwood facility has its own on-site director, Michael Walters (“Mr. Walters”), who manages the facility's day-to-day operations (doc. 56-35, Gerona decl. ¶ 6). Mr. Gerona described the day-to-day operations at the Greenwood facility as follows:
Under Mr. Walters' direct supervision are department managers for each of the departments at the Greenwood manufacturing plant. Below the department managers are supervisors for the hourly production employees who work various shifts. The production employees' shift schedules are determined by the supervisors and managers, and their job performance and disciplinary actions are evaluated and determined by the local supervisors and managers. The production employees, supervisors, and department managers are all Ascend Operations employees. Ascend Holdings employees are not consulted for these day-to-day matters of scheduling, job performance, and employee conduct.(Id.). Mr. Gerona also provided that Mr. Walters is employed by Ascend Operations, not Ascend Holdings (id.). Further, Mr. Walters stated in his declaration that "the department managers and supervisors have autonomy to work together and make scheduling and shift adjustments to account for employee absences and leaves" (doc. 56-2, Walters decl. ¶ 2). Additionally, the Greenwood facility has its own human resources department (id. ¶ 5). Further, Ascend Operations' employees were involved in the decision to deny the plaintiff reinstatement (docs. 42-2, Sigvertsen decl. ¶ 3; 43 at 14; 42-7, Sigvertsen dep. 48:1-7).
However, the record reflects that both Ascend Operations and Ascend Holdings are involved in decisions to terminate the employment of Ascend Operations' employees. Mr. Walters provided in his declaration that he and others at the Greenwood facility had the authority to hire and fire, stating as follows:
Hiring and disciplinary decisions are regularly made by Ascend Operations' employees at the Greenwood plant. For example, I am the decision maker in hiring department managers and supervisor level positions in Greenwood. Hiring decisions for hourly personnel are made by the supervisor and hiring manager in Greenwood. Disciplinary actions are taken with involvement on Greenwood's local HR, the hiring manager, and the supervisor. I ultimately decide whether to terminate based on any disciplinary recommendations for termination that I receive.(Doc. 56-2, Walters decl. ¶ 2).
Nevertheless, there is also evidence that the approval from some of Ascend Holdings' employees was required prior to terminating the employment of an Ascend Operations' employee (docs. 58-1, Sigvertsen dep. 72:21-73:21; 63-2, Walters dep. 51:17-52:6; 57-53, Sigvertsen dep. 105:8-21; 57-49, Holdings corp. rep. dep. 20:5-21:1; 57-34 at 1-7; 57-34 at 1-7). Further, as set out above, the entity that made the decisions regarding the employment matters related to the person claiming discrimination is relevant to this analysis, and there is evidence that Ascend Holdings' employees did in fact approve the plaintiff's employment termination prior to her employment termination becoming effective (id.). Specifically, Mr. Sigvertsen and Mr. Walters testified that Gustavo Nechar ("Mr. Nechar"), the chief human resource officer for Ascend Holdings, participated in the decision to terminate the plaintiff's employment. Specifically, when asked who participated in this decision, Mr. Sigvertsen testified that he did, as well as legal counsel, Mr. Walters, Mr. Gerona, Mr. Nechar, and Brian Connelly, the vice president of Ascend Operations (doc. 58-1, Sigvertsen dep. 72:21-73:21). Further, Mr. Walters testified as follows:
Q. So who made the decision?
A. Ultimately, legal counsel, in conjunction with HR.
Q. Who in HR?
A. I would say the top HR person. I would think the VP of HR would have to sign off on it, as well as our legal counsel.
Q. Who was the top HR person to whom you refer?
A. Gustavo Nechar. ...
Q. Who makes the decision to send it up to Corporate?
A. Both myself and [Mr. Sigvertsen.] Ultimately, me.(Doc. 63-2, Walters dep. 51:17-52:6). Moreover, as the Rule 30(b)(6) corporate representative for Ascend Operations, Mr. Walters testified about the process of terminating the plaintiff's employment as follows:
Q. Okay. On topic 21, identify for me everybody that was involved in the decision to terminate Ms. Carter's employment.
A. Okay. From the site, Dean Sigvertsen made a recommendation. I reviewed based on my knowledge of the situation and what he presented, ultimately agreeing and making a decision to move it forward in the process, which would have involved - which would have involved Lou Gerona, and then further to the corporate entities that I referred to before, the three persons I referred to before.
Q. Go ahead and tell me who they are again, please.
A. Adel Sander, Gustavor Nechar, and Andrew Ralston.(Doc. 58-2, Operations corp. rep. dep. 37:4-17).
When asked if anyone who was paid by Ascend Holdings approved the decision to terminate the plaintiff's employment, Mr. Gerona, testifying as the Rule 30(b)(6) corporate representative for Ascend Holdings, stated, “Yes” (doc. 57-49, Holdings corp. rep. dep. 20:5-7). Mr. Gerona elaborated that legal counsel at Ascend Holdings approved of the plaintiff's employment termination from a legal perspective and that he "looked at it from just a consistency perspective in terms of the reason for termination and consistency across our plants, and Gustavo Nechar and Andrew Ralston were essentially just another level of review, but again, the decision was made locally by Michael Walters and Dean Sigvertsen" (id. at 20:11-20). Mr. Gerona also stated that approval from Ascend Holdings' legal counsel was necessary to terminate the plaintiff's employment (id. at 20:23-21:1).
The defendants argue that the court should not consider Mr. Walters and Mr. Sigvertsen's testimony on this issue, as they lacked personal knowledge regarding whether Ascend Holdings' employees were involved in the plaintiff's employment termination (doc. 63 at 24). Specifically, Mr. Sigvertsen testified that he was not part of the team who communicated with Mr. Nechar regarding the plaintiff's employment termination and he was unaware of who communicated with Mr. Nechar (doc. 63-1, Sigvertsen dep. 75:9-23). Moreover, as set out above, Mr. Walters testified that “I would say the top HR person. I would think the VP of HR would have to sign off on it, as well as our legal counsel” (doc. 63-2 Walters dep. 51:17-52:6) (emphasis added). However, even if the court were to not consider this testimony, the record still reflects that approval from Ascend Holdings' employees was required prior to terminating the employment of Ascend Operations' employees through Mr. Gerona's testimony.
Additionally, during the time period in question, all of Ascend Operations' five officers were also officers of Ascend Holdings (doc. 56-51 at 15-16). These shared officers had the same titles for both Ascend Holdings and Ascend Operations (i.e., Phil McDivitt was the president and chief executive officer for both Ascend Operations and Ascend Holdings and Kevin Bartol was the senior vice president and chief financial officer for both entities) (id.). Ascend Holdings had one additional officer that was not shared (id.). However, Mr. Gerona provided in his declaration that each of the shared officers served Ascend Operations and Ascend Holdings in separate capacities and none had any role in the decisions regarding the plaintiff's medical leave, reinstatement, and employment termination (doc. 56-35, Gerona decl. ¶ 12). While Ascend Holdings makes the argument that it did not share any common directors with Ascend Operations, the record reflects that Ascend Operations did not have any directors (doc. 56-51 at 15-16).
In sum, while Mr. Walters and others at the Greenwood facility control day-to-day operations there, the evidence also reflects that approval from Ascend Holdings is required prior to terminating the employment of Ascend Operations' employees, Ascend Holdings' employees were actually involved in terminating the plaintiff's employment, and the officers of Ascend Operations were nearly identical to the officers of Ascend Holdings.
2. Interrelation Between Operations
There are also various points of interrelation of operations between Ascend Holdings and Ascend Operations. The plaintiff has presented some evidence that Ascend Holdings and Ascend Operations advertise themselves together as "Ascend Performance Materials" and do not differentiate themselves or hold themselves out as separate entities (docs. 58-3, Holdings corp. rep. dep. 19:7-12; 58-9; 58-10; 58-11). Moreover, testimony revealed that online job postings do not differentiate between whether the job is with Ascend Holdings or Ascend Operations (doc. 58-3, Holdings corp. rep. dep. 18:25-19:3). Further, Mr. Gerona, who was paid by Ascend Operations but "assigned to corporate," shared office space during the events in question with employees of Ascend Holdings in Houston, Texas, where Ascend Holdings is headquartered (doc. 58-3, Holdings corp. rep. dep. 12:23-14:6). As discussed above, Ascend Holdings' involvement was required for terminating individuals' employment at the Greenwood facility, and Ascend Holdings' employees were in fact involved in terminating the plaintiff's employment. Additionally, Ascend Holdings performs some functions for Ascend Operations, such as developing technology, environmental work, and some safety and health initiatives (doc. 58-3, Holdings corp. rep. dep. 9:19-10:21). Further, it appears that certain employees at the Greenwood facility report to Ascend Holdings' employees. Specifically, Mr. Sigvertsen and other human resources managers at the Greenwood facility report to Mr. Gerona (docs. 56-49, Holdings corp. rep. dep. 26:9-11; 58-2, Operations corp. rep. dep. 23:20-24:1, 25:13-14). Further, Mr. Gerona testified that he reports to Mr. Nechar (doc. 56-49, Holdings corp. rep. dep. 22:23; 58-3, Holdings corp. rep. dep. 12:1-11).
As the corporate representative for Ascend Holdings, Mr. Gerona testified regarding areas of interrelation between the entities, referred to Ascend Holdings and Ascend Operations collectively as "Ascend Performance Materials," and provided vague responses when asked about the entities' corporate relationship as follows:
In the Rule 30(b)(6) notices that the plaintiff served on both Ascend Operations and Ascend Holdings, the plaintiff provided that examination would be conducted on “[t]he corporate structure and relationship between Defendants” (doc. 58-8 at 4, 8).
Q. What was the corporate relationship between Holdings and Operations?
A. Other than Holdings is considered Holdings and Operations is considered, generally speaking, our sites, that's about all I can share.
Q. What do you mean by "Operations is considered our sites"?
A. Well, Operations is our manufacturing sites essentially, so Decatur, Alabama, Greenwood, South Carolina, Pensacola, Florida, Foley, Alabama, et cetera.
Q. Okay. When you're saying "our," you're referring to Holdings?
A. Referring to Ascend Performance Materials.
Q. Okay. Well, what do you mean when you say "Ascend Performance Materials"?
A. The overall global company. So our sites are essentially where we make products.
Q. Okay. When you say "Ascend Performance Materials", do you make any distinction between Holdings and Operations? ...
[A.] Holdings is the corporate entity, and our sites - Operations are our sites, so that's the distinction I make.
...
Q. Okay. We took a short break, and I understand, Mr. Gerona, you have some additional information you would like to relate to us regarding the relationship between Holdings and Operations.
A. Yes. So Holdings is essentially the corporate entity, and then everything underneath Holdings is essentially Operations and where our products are made. When we think about - and that's one of the answers I wanted to correct from earlier. We think about technology, so if we think about technology R&B, the vision for the product lines or product portfolios would come out of Houston, but essentially everything else that goes into making a product, or testing a product, or developing a product would come out of one of our sites. . . .
Q. Do you have - I had asked you before what the corporate relationship was between Holdings and Operations. Do you have any more information for me on that?
A. Other than the Holdings is essentially the corporate entity, and everything underneath it is our sites and where we produce and make products, where the work gets down, so to speak.(Doc. 58-3, Holdings corp. rep. dep. 15:19-17:24).
However, there are also some points of distinction, as each entity has its own bank accounts, Ascend Holdings holds its own shareholder and board of directors' meetings, Ascend Operations has sufficient capital to conduct its own business operations and pay its own creditors such that it is not undercapitalized, Ascend Operations purchases its own goods and materials, and Ascend Operations enters into its own real estate agreements for the properties on which the operations facilities and manufacturing plants are located (doc. 56-35, Gerona decl. ¶ 5). Ascend Operations also pays its employees from its own bank account (id. ¶ 10; doc. 56-4 at 1-6). Moreover, while Ascend Holdings has a benefits department that ensures that its subsidiaries' employees receive benefits appropriately, its subsidiaries purchase these services from it through an administrative services agreement (doc. 56-35, Gerona decl. ¶ 9).
The Fourth Circuit has noted that a subsidiary purchasing administrative services from a parent “is not unusual in today's business climate and is of no consequence” in the integrated employer analysis. Hukill, 192 F.3d at 443.
Thus, there are both significant points of interrelation and distinction. While the evidence showing distinction is persuasive, particularly including that each entity has its own bank accounts, Ascend Operations is not undercapitalized and purchases its own goods and materials, and Ascend Operations enters into its own real estate agreements, it is also persuasive that the entities were referred to and at times advertised together as Ascend Performance Materials, Ascend Holdings' approval was required prior to terminating the employment of Ascend Operations' employees, Ascend Holdings performed some functions for Ascend Operations (including technology, vision for product lines, environmental work, etc.), some of Ascend Operations' employees reported to Ascend Holdings' employees, and Ascend Holdings' corporate representative provided a vague characterization of the entities' corporate relationship as one being corporate and one being where the “work gets done.” Notably absent is information regarding whether the entities filed their tax returns separately or jointly.
3. Centralized Control of Labor Operations
Regarding centralized control of labor operations, as set out above, the defendants have presented evidence that Mr. Walters and others at the Greenwood facility controlled day-to-day operations. The plaintiff testified in her deposition that she was interviewed for a job by Ascend Operations' employees and was ultimately informed of her termination by Mr. Sigvertsen (doc. 56-46, Carter dep. 42:15-43:4, 113:12-13). However, the plaintiff also testified that she did not know for which entity she worked (id. at 30:10-14). Again, there is evidence that Ascend Holdings' involvement and approval was required before Ascend Operations could terminate the employment of an Ascend Operations' employee. Ascend Holdings submits that under this factor, "the ultimate focus should be on whether Ascend Holdings actually made the relevant decisions - i.e., the alleged denial of reinstatement to Plaintiff's position and/or the termination of her employment" (doc. 56-1 at 12). While the record reflects that Ascend Operations' employees were involved in the decision regarding the plaintiff's reinstatement, Ascend Holdings' involvement was clearly seen through the plaintiff's employment termination.
4. Degree of Common Ownership/Financial Control
The record is sparse with regard to the degree of common ownership/financial control. There is some evidence that Ascend Holdings may be the sole equity owner of Ascend Operations (docs. 58-3, Holdings corp. rep. dep. 17:25-18:10; 56-36). However, there is also evidence referring to Ascend Holdings as a holding company (doc. 56-35, Gerona decl. ¶ 4), which would imply a lack of common ownership.
Ultimately, viewing the factors together and based on the current record before the court, the undersigned finds that Ascend Holdings has not shown that it is entitled to summary judgment as a matter of law on the issue of whether it is an integrated employer with Ascend Operations. See Fed.R.Civ.P. 56(a) ("The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law."). Importantly, control of labor operations is the most critical factor, and while Mr. Walters controls the day-to-day operations at the Greenwood facility, Ascend Holdings' approval is required prior to terminating the employment of Ascend Operations' employees. Moreover, the officers of Ascend Operations were nearly identical to the officers of Ascend Holdings, and the entities had significant points of interrelation, including that the entities were referred to and at times advertised together as Ascend Performance Materials, Ascend Holdings performed some functions for Ascend Operations, there was some overlapping of office space, certain Ascend Operations' employees reported to certain Ascend Holdings' employees, and Ascend Holdings' corporate representative vaguely characterized the entities' corporate relationship as one entity being corporate where the vision for the products came and one entity being where the products were actually made. Therefore, the undersigned recommends that the district court deny Ascend Holdings' motion for summary judgment.
D. Ascend Holdings' and Ascend Operations' Joint Motion for Summary Judgment
1. ADA Discrimination
In her ADA discrimination claim, the plaintiff alleges that the defendants discriminated against her based on her disability by denying her reinstatement and terminating her employment (docs. 9 at 7; 59 at 35-39). The plaintiff moved for summary judgment on her claim regarding the denial of reinstatement (doc. 27). The defendants moved for summary judgment on this claim regarding both the plaintiff's denial of reinstatement and employment termination (doc. 57).
The ADA prohibits employment discrimination "against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). To establish a claim of disability discrimination under the ADA, the plaintiff must show (1) that she has a disability, (2) that she is a qualified individual for the employment in question, and (3) that [her employer] discharged her (or took other adverse employment action) because of her disability." Smith v. CRSA, 12 F.4th 396, 412 (4th Cir. 2021) (citations and internal quotation marks omitted).
As an initial matter, relying on Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), the plaintiff argues that she is not required to either produce direct evidence or proceed under the burden-shifting framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) (doc. 43 at 13). The Fourth Circuit has stated that "[w]hen a plaintiff alleges that her employer unlawfully discriminated or retaliated against her in violation of the ADA, she can prove her claim through direct and indirect evidence. . . . or . . . [she] may proceed under the burden-shifting framework of McDonnell Douglas . . . ." Laird v. Fairfax Cnty., Va., 978 F.3d 887 (4th Cir. 2020). Under the first method, a plaintiff may use "ordinary principles of proof," Burns v. AAF-McQuay, Inc., 96 F.3d 728 (4th Cir. 1996), and, "[t]o avoid summary judgment, the plaintiff must produce direct evidence of a stated purpose to discriminate and/or [indirect] evidence of sufficient probative force to reflect a genuine issue of material fact." Rhoads v. F.D.I.C., 257 F.3d 373, 391 (4th Cir. 2001). Thus, to the extent that the plaintiff argues that she may rely on direct and indirect evidence in this manner, the undersigned agrees.
However, to the extent that the plaintiff relies on Desert Palace to argue that she need only show a motivating factor causation standard, the plaintiff's argument is without merit. In Desert Palace, the Supreme Court of the United States held that a plaintiff is not required to present direct evidence of discrimination in order to obtain a mixed-motive instruction under Title VII. 539 U.S. at 92. In reaching this decision, the court noted that the Civil Rights Act of 1991 provides that "an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice." Id. at 94 (citing 42 U.S.C. § 2000e-2(m)). The Act further provides that, in these mixed motive cases, employers may assert an affirmative defense that limits the remedies available to the plaintiff by "demonstrating] that [it] would have taken the same action in the absence of the impermissible motivating factor." Id. (citing 42 U.S.C. § 2000e-5(g)(2)(B)). Thus, the court concluded that plaintiffs could rely on circumstantial evidence and need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that race, color, religion, sex, or national origin was a motivating factor for any employment practice to obtain a mixed motive instruction in Title VII cases. Id. at 99-102.
However, after Desert Palace, the Supreme Court found that Title VII's motivating factor standard did not apply to claims brought under the Age Discrimination Employment Act in Gross v. FBL Financial Services, Incorporated, 557 U.S. 167 (2009). Expanding Gross, the Fourth Circuit declined to extend the mixed motive instruction and motivating factor causation standard applicable to Title VII to claims under the ADA:
Gross dictates the outcome here. The ADA's text does not provide that a plaintiff may establish liability by showing that disability was a motivating factor in an adverse employment decision. Furthermore, the 1991 Act that added the "motivating factor" standard to Title VII "contemporaneously amended" provisions of the ADA but did not add that standard. See Pub. L. No. 102-166, §§ 109, 315. We conclude that Title VII's "motivating factor" standard cannot be read into Title I of the ADA. In reaching this conclusion, we join the Sixth and Seventh Circuits.Gentry v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228 (4th Cir. 2016). Instead, the Fourth Circuit provides that plaintiffs may prove ADA discrimination through direct and indirect evidence or under the McDonnell Douglas framework. See Laird, 978 F.3d at 892. Therefore, the undersigned will address the plaintiff's claims accordingly.
a. Denial of Reinstatement
The plaintiff argues that the defendants violated the ADA by denying her reinstatement in December 2019 (docs. 9 at 7; 27 at 18-19). The defendants, however, argue that the plaintiff's claim fails because they did not take an adverse employment action against her (doc. 42 at 16). "[A]n adverse action is one that constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Thomas v. City of Annapolis, 851 Fed.Appx. 341, 345 (4th Cir. 2021) (citations and internal quotation marks omitted); see 42 U.S.C. § 12112(a).
The plaintiff argues the defendants denying her reinstatement and keeping her on leave was an adverse action, even if such leave was paid (doc. 27 at 18-19). To support her argument, the plaintiff relies on 29 C.F.R. § 1630.2(1)(1)-(2), which provides that “placement on involuntary leave” is a prohibited action. However, this regulation concerns prohibited actions in the context of the regarded-as prong when determining whether an individual has a disability under the ADA, not when determining what constitutes an adverse action. Specifically, the test for the regarded-as prong provides that an individual is regarded as having an impairment if “the individual is subjected to a prohibited action because of an actual or perceived physical or mental impairment . . . .” 29 C.F.R. § 1630.2(1)(1)-(2). Therefore, the plaintiff's argument is unavailing. The plaintiff also cites to several cases to support her argument, all of which are either not binding or distinguishable from the instant matter. See Agelli v. Sebelius, 466 Fed.Appx. 174, 175 (4th Cir. 2012) (finding that a three-day suspension was an adverse action in the context of a discriminatory discipline claim under Title VII); Timmons v. GMC, 469 F.3d 1122, 1128 (7th Cir. 2006) (noting that “[m]oney is not the exclusive measure of adverse employment actions” and finding that an employee on leave with pay had experienced an adverse action); Moody v. CookCnty., 513 F.Supp.2d 960 (N.D Ill. 2007) (“Forcing an individual to go on leave by failing to accommodate his disability would constitute an adverse employment action.”).
Rather, courts within the Fourth Circuit routinely find that placing an employee on paid leave is not an adverse employment action. See e.g., Nzabandora v. Rectors & Visitors of Univ. of Va., 749 Fed.Appx. 173, 175 (4th Cir. 2018) ("Nzabandora's placement on paid leave pending investigations into her alleged misconduct also does not constitute adverse employment action for purposes of Title VII.") (citation omitted); Donaldson v. Clover Sch. Dist., C/A No. 0:15-1768-MBS-KDW, 2017 WL 8897151, at *9 (D.S.C. July 24, 2017) ("Plaintiff's placement on paid administrative leave near the end of the 2013-14 school year, though, is not an adverse employment action in the discrimination (or retaliation) context.") (emphasis in original), R&R adopted by 2017 WL 4173596 (D.S.C. Sept. 21, 2017); Mason v. Montgomery Cnty Police Dep't, C/A No. 8:13-cv-01077-AW, 2013 WL 6585928, at *5 (D. Md. Dec. 13, 2013) ("[P]lacing an employee on paid administrative leave with full benefits is typically not considered a materially adverse action") (collecting cases); compare Thomas, 851 Fed.Appx. at 345 (agreeing with the district court that placing the plaintiff on leave without pay was an adverse action) (emphasis added); Busha v. S.C. Dep't of Mental Health, C/A No. 6:17-571-DCC-KDW, 2019 WL 1293723, at *12 (D.S.C. Jan. 24, 2019) (“Plaintiff's being required to be out of work without pay for several months while obtaining fitness-for-duty certification is an adverse action.”) (emphasis added). The undersigned finds these cases persuasive and concludes that the defendants denying the plaintiff reinstatement and keeping her on paid leave with benefits was not an adverse action under the ADA (doc. 56-4 at 1-6). Therefore, the undersigned recommends that the district court grant the defendants' motion for summary judgment and deny the plaintiff's motion for summary judgment on the plaintiff's ADA discrimination claim regarding her denial of reinstatement.
Fox v. Gen. Motors Corp., 247 F.3d 169, 176 (4th Cir. 2001) (“Because the ADA echoes and expressly refers to Title VII, and because the two statutes have the same purpose - the prohibition of illegal discrimination in employment - courts have routinely used Title VII precedent in ADA cases.”) (citations omitted).
b. Employment Termination
Because the plaintiff proceeds under McDonnell Douglas for her employment termination claim, the undersigned will address her claim under that framework herein. Under McDonnell Douglas, the plaintiff bears the burden of establishing a prima facie case of disability discrimination under the ADA, which, as set out above, requires her to show (1) that she has a disability, (2) that she is a qualified individual for the employment in question, and (3) that [her employer] discharged her (or took other adverse employment action) because of her disability." Smith, 12 F.4th at 412 (citations and internal quotation marks omitted). If the plaintiff can establish a prima facie case, the burden then shifts to the defendants to produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action. Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 575 (4th Cir. 2015) (citation omitted). If the defendants make this showing, the burden then shifts back to the plaintiff to prove that these asserted justifications are pretextual. Id. at 575-76 (citation omitted).
i. Prima Facie Case
The ADA defines "disability" as: "(1) 'a physical or mental impairment that substantially limits one or more major life activities' (the [actual disability] prong); (2) 'a record of such impairment' (the 'record-of prong); or (3) 'being regarded as having such an impairment' (the 'regarded-as' prong)." Summers v. Altarum Institute, Corp., 740 F.3d 325, 328 (4th Cir. 2014) (quoting 42 U.S.C. § 12102(1)). Pursuant to the ADA Amendments Act of 2008 ("ADAAA"), "[t]he definition of disability . . . shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter." 42 U.S.C. § 12102(4)(A)). "The primary purpose of the ADAAA is to make it easier for people with disabilities to obtain protection under the ADA." 29 C.F.R. § 1630.1(c)(4). The regulation clarifies that "[t]he primary object of attention in cases brought under the ADA should be whether covered entities have complied with their obligations and whether discrimination has occurred, not whether the individual meets the definition of disability." Id. Accordingly, "[t]he question of whether an individual meets the definition of disability under [the ADA] should not demand extensive analysis." Id.
Here, the plaintiff argues that she has presented evidence to show a disability under all three prongs (docs. 27 at 10-18; 43 at 6-12; 59 at 30-34). The defendants argue that the undersigned should solely apply the regarded-as prong to this matter, because the plaintiff has not brought a failure to accommodate claim (doc. 42 at 3 n.6). However, while it is generally unnecessary to proceed under the actual disability or record-of prongs when a plaintiff has not brought a failure to accommodate claim or does not require a reasonable accommodation, an individual may nevertheless choose to proceed under the actual disability or record-of prongs. 29 C.F.R. § 1630.2(g). Therefore, the undersigned will consider the plaintiff's arguments regarding all three prongs herein.
As set out above, to satisfy the actual disability prong, the plaintiff must show that she has (1) a physical impairment (2) that substantially limits (3) one or more major life activities. See 42 U.S.C. § 12102(1). A physical impairment is "[a]ny physiological disorder or condition . . . or anatomical loss affecting one or more body systems, such as neurological [or] musculoskeletal . . . ." 29 C.F.R. § 1630.2(h)(1). Further, '"[substantially limits' is not meant to be a demanding standard." Id. § 1630.2(j)(1)(i). In fact, "[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting." Id. § 1630.2(j)(1)(ii). Rather, a "substantially limiting impairment" is an impairment that "substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population." Id. Major life activities include, but are not limited to, caring for oneself, performing manual tasks, walking, standing, lifting, and working, as well as the operation of a major bodily function, including musculoskeletal. Id. § 1630.2(i)(1)(i)-(ii).
Timing also plays a role in this analysis, and the relevant time frame for assessing whether a plaintiff has a disability is the date of the adverse employment action. See Anderson v. Discovery Commc'n, LLC, 517 Fed.Appx. 190, 196 (4th Cir. 2013) (citing EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 618 (5th Cir.2009) ("In an ADA case, the relevant time for assessing the existence of a [cognizable] disability is the time of the adverse employment action.")); EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373, 379 (4th Cir.2000) ("Of course, the date of an adverse employment decision is the relevant date for determining whether a plaintiff is a 'qualified individual with a disability.'") (citation omitted); Coffey v. Norfolk S. Ry. Co., C/A No. 2:19-cv-509, 2021 WL 879121, at *8 (E.D. Va. Feb. 5, 2021) (noting that there is "a timing requirement under the ADA" and "[t]he disability at issue must have existed at the time of the adverse employment action" and finding that the plaintiff did not have a disability because his employment termination took place five months after his Achilles tendon had healed) (citations omitted), aff'd by 23 F.4th 332 (4th Cir. 2022); Iwebo v. Sheppard Pratt Health Sys., Inc., C/A No. BPG-19-3008, 2020 WL 4748579, at *8-9 (D. Md. Aug. 14, 2020) ("[T]he date of an adverse employment decision is the relevant date for determining whether a plaintiff is a qualified individual with a disability. . . . Although cancer may qualify as a disability under the ADA, by plaintiff's own allegations she was only disabled due to cancer until June 2017. The alleged adverse actions did not occur until July 2017. As a result, plaintiff has failed to plausibly allege that she is disabled under the actual disability prong of the disability analysis.") (internal citations and quotation marks omitted); Davis v. Honda of S.C. Mfg., Inc., C/A No. 4:03-3546-RBH-TER, 2005 WL 6148143, at *5 (D.S.C. Aug. 30, 2005) ("The date upon which we must consider any "disability" is the date of the adverse employment action.") (citation omitted), R&R adopted by 2006 WL 182007 (D.S.C. Jan. 24, 2006). However, some disabilities do not cause continuous symptoms, and the ADAAA provides that "[a]n impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active." 42 U.S.C. § 12102(4)(D). "[impairments that may be episodic include, but are not limited to, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder, and schizophrenia." 29 C.F.R. Pt. 1630, App.
The plaintiff argues that this line of cases was overturned by the ADAAA (doc. 43 at 6-7). However, while the ADAAA did abrogate earlier inconsistent case law, Jacobs, 780 F.3d at 572, since the enactment of the ADAAA in 2008, courts in this circuit have continued to note that the relevant time frame for assessing whether a plaintiff has a disability is the date of the adverse employment action. See e.g., Anderson, 517 Fed.Appx. at 196; Coffey, 2021 WL 879121, at *8; Iwebo, 2020 WL 4748579, at *8-9.
Here, the plaintiff was diagnosed with plantar fasciitis, a painful tendon inflammation of the foot (docs. 27-2, Robinson dep. 18:2-7; 27-4, Whitehead decl. ¶ 4). One court in this circuit described plantar fasciitis as follows:
Plantar fasciitis is the inflammation of a thick band of tissue that runs across the bottom of the foot and connects the heel bone to the toes. See Mayo Clinic, Plantar Fasciitis, http://www.mayoclinic.org/di seases-conditions/plantar-fasciitis/basics/ definition/con-20025664 (rev.Feb.27, 2014). Common symptoms include stabbing pain near the heel that is "usually worse with the first few steps" after standing sitting, or lying down for long periods. Id.
Bin-Salamon v. Comm'r Soc. Sec., C/A No. 4:13-cv-00062, 2015 WL 302835, at *3 n.4 (W.D. Va. Jan. 23, 2015). The plaintiff complained of these symptoms in the record (doc. 27-4 at 5; 57-38 at 2). Further, the plaintiff testified in her deposition that her plantar fasciitis affected her ability to walk, stand, and perform other daily routines (doc. 27-1, Carter dep. 48:13-17, 50:3-21). Moreover, on September 6, 2019, Dr. Robinson documented that the plaintiff was limping, her foot was tender, and she told him that she could not walk or stand without pain, she could not bear pressure, and her foot even hurt in the shower (doc. 57-22 at 1). Medical records reflect that the plaintiff often ambulated with a limp, had limited range of motion, and had poor gait mechanics as a result of her plantar fasciitis (docs. 27-4 at 5; 59-14 at 4). The plaintiff received treatment for her plantar fasciitis, including multiple injections, pain medication, a boot, shoe inserts, and physical therapy (docs. 27-4 at 1, 6; 57-38 at 2, 4). In addition, she took about 13 weeks of leave for recovery (docs. 27-7 at 1; 57-28 at 1). Nevertheless, with treatment, the plaintiff's plantar fasciitis improved (docs. 57-42 at 3-4; 56-43 at 1). In fact, the plaintiff testified that her condition was "cured" and she did not have any problems with walking or standing as of November 2019 (docs. 57-55, Carter dep. at 49:1-50:24). Further, Mr. Whitehead and Dr. Oliver released the plaintiff to work with no restrictions (docs. 57-37 at 1; 57-41 at 1).
The defendants argue that because the plaintiff testified that she was "cured" at and around the time that her employment was terminated, she did not have an actual disability that could be considered episodic (docs. 42 at 6-8; 53 at 5-6; 57-1 at 22-23). However, the undersigned declines to find that the plaintiff's lay person terminology prevents a finding of disability when the objective medical evidence reflects that her condition was episodic. Specifically, medical records reflect that the plaintiff's providers documented that her plantar fasciitis was "chronic," had been ongoing for three to four years, and might be a recurrent problem with future flare-ups (docs. 27-4 at 5; 42-9 at 3; 57-38 at 2; 57-42 at 4). Further, Mr. Whitehead continued to treat the plaintiff for her plantar fasciitis after her employment was terminated and described her condition as "lingering on" (doc. 59-10, Whitehead dep. 47:6-16). Mr. Whitehead also testified, more than two years after the events at issue, as follows:
Bottom line for her, she'll never get fixed unless she has surgery on that foot. I mean, it's just - her foot is so deformed. It's only going to get worse. It's pulling at angles that it shouldn't be, and if she doesn't get, you know, anatomically corrected with that foot, it's just going to progressively get worse. She's going to develop arthritis. Down the road, that ankle will be fused.(Doc. 59-10, Whitehead dep. 75:11-19). Moreover, even after deciding that the plaintiff could return to work without restrictions, her providers still documented that she had plantar fasciitis and, while she was presently "asymptomatic," her symptoms could return in the future (docs. 57-42 at 3-4; 59-10, Whitehead dep. 47:6-16, 75:11-19). Therefore, the undersigned finds that the plaintiff has shown that her plantar fasciitis was episodic and that, when active, substantially limited her ability to work, walk, and stand. The fact that the plaintiff was merely asymptomatic when her employment was terminated does not foreclose a finding of disability. See 42 U.S.C. § 12102(4)(D). Therefore, the undersigned finds that the plaintiff had an actual disability under the ADA when her employment was terminated.
Because the undersigned finds that the plaintiff has satisfied the actual disability prong, the parties' arguments regarding the record-of and regarded-as prongs need not be addressed.
"The term 'qualified individual' means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Like with the disability analysis, "the date of an adverse employment decision is the relevant date for determining whether a plaintiff is a 'qualified individual with a disability.'" Stowe-Pharr Mills, Inc., 216 F.3d at 379 (citation omitted).
Here, it is undisputed that the plaintiff did not request a reasonable accommodation. Thus, the question is whether the plaintiff has shown that she could perform the essential functions of her job when her employment was terminated. The defendants first argue that if the plaintiff in fact had a disability that substantially limited her ability to walk and stand, she would be precluded from establishing the qualified individual element because it would mean that she would not be able to perform the essential function of her job involving walking and standing eight to ten hours per day (doc. 42 at 13 n.4). However, as set out above, the plaintiff has presented evidence that her plantar fasciitis was episodic and asymptomatic when her employment was terminated. Therefore, a finding of disability does not preclude a finding of qualified individual here.
To show that she was a qualified individual, the plaintiff has presented a release from Mr. Whitehead authorizing her to return to work with no restrictions on December 4th and a release from Dr. Oliver authorizing her to return to work with no restrictions on December 6th (docs. 27-13 at 1; 27-18 at 1). Additionally, the plaintiff testified that she was pain free and able to work in this time frame (docs. 57-55, Carter dep. 48:20-49:6, 50:5-24, 102:4-16; 57-42 at 3-4; 56-43 at 1). Further, the medical records reflect the plaintiff's improvement (docs. 56-43 at 1; 57-42 at 3-4).
The defendants argue that Mr. Whitehead's release is unpersuasive because he conceded that he did not examine the plaintiff when he authorized her to return to work and thus did not have personal knowledge of her ability to return to work (doc. 57-1 at 30) (citing doc. 57-63, Whitehead dep. 39:1-44:4). However, even accepting the defendants' argument, Dr. Oliver also provided the plaintiff with a release authorizing her to return to work with no restrictions on December 6th based on his examination of her. Dr. Oliver also noted that the plaintiff was asymptomatic and that it was reasonable for her to return to work (doc. 57-42 at 4). Thus, the defendants' argument is unpersuasive.
The defendants further argue that the plaintiff's evidence is insufficient to show that she was a qualified individual because the releases do not address the plaintiff's ability to perform the essential functions of her specific job (doc. 57-1 at 30). However, the undersigned finds that the defendants are seeking a too exacting evidentiary showing. Undoubtedly, the medical providers' release of the plaintiff to return to work with no restrictions is evidence that she would have no restrictions in performing the essential functions of her job. There is no requirement that a plaintiff must obtain a release from a medical provider detailing each essential function, and courts routinely rely on releases allowing an employee to return to work with no restrictions to find that the employee was a qualified individual. See Caplan v. Fluor Enter., Inc., C/A No. H-17-2083, 2019 WL 1512395, at *5-6 (S.D. Tex. Apr. 8, 2019) (finding that a plaintiff presented sufficient evidence that he was a qualified individual and capable of performing the essential functions of his job without a reasonable accommodation when he presented a doctor's note releasing him to work without any restrictions, he declared that his health improved based on the treatment he received while on leave, and his testimony in his deposition regarding his symptoms did not address either the efficacy of the treatment he received while on leave or the frequency with which he experienced flare-ups); Maharaj v. Cal. Bank & Tr., 909 F.Supp.2d 1198, 1204-05 (E.D. Cal. 2012) (denying summary judgment on qualified individual issue where the plaintiff provided a medical note releasing her to work without restrictions). Further, the defendants' reliance on Wilson v. Dollar General Corp., 717 F.3d 337 (4th Cir. 2013) to support this argument is unavailing. In Wilson, the Fourth Circuit found that a plaintiff was not a qualified individual because there was "simply no evidence" to conclude that the plaintiff would have been able to perform the essential functions of his job at the conclusion of the leave that he requested. Id. at 346. The Fourth Circuit noted that a doctor's note allowing him to return to work on the date that his leave ended was silent on his ability to perform his job. Id. However, unlike the two authorizations here, in Wilson, the doctor left blank the section identifying whether the plaintiff's return to work was subject to any restrictions. Id. at 340. Additionally, central to the analysis was also the fact that the plaintiff conceded that he was unable to work at the conclusion of the leave. Id. at 346. Therefore, because the plaintiff here provided multiple authorizations releasing her to work with no restrictions, as well as her testimony and the medical records reflecting her improvement and ability to work, the undersigned declines to extend Wilson to the present matter.
Additionally, the defendants argue that the plaintiff was not a qualified individual because she was prescribed hydrocodone and Mr. Whitehead testified that he does not recommend operating heavy machinery on such medication (docs. 57-1 at 30; 57-63, Whitehead dep. 47:17-49:19). However, Mr. Whitehead also testified that he did not know if the plaintiff took this medication during working hours, and the plaintiff stated in her declaration that she took hydrocodone at bedtime and did not take it at work (docs. 59-15, Carter decl. ¶ 10; 59-10, Whitehead dep. 54:13-25). Notably, the defendants have not presented any evidence that the plaintiff was prescribed and taking hydrocodone at the time her employment was terminated, as Mr. Whitehead testified that the plaintiff was prescribed hydrocodone from November 20, 2019, until at least February 2020, but the plaintiff's employment termination became effective on March 10, 2020 (docs. 57-63, Whitehead dep. 47:17-49:19; 42-1 at 9). The defendants further argue for the first time in their reply that the plaintiff was not a qualified individual because of her appointment with Mr. Whitehead on February 18, 2020 (doc. 65 at 13). Regarding this appointment, Mr. Whitehead testified that he and the plaintiff looked at "referring her to a podiatrist in Greenville at her request for a possible surgery" and that he noted that her foot was "not getting any better with physical therapy or cortisone injections" (doc. 65-8 at 46:10-47:16). However, when asked if the plaintiff was able to work as of February 18, 2020, Mr. Whitehead also testified that he did not know if she was working but that "if she felt she could work, she may have been working" (id.). However, even in light of the absence of information regarding the plaintiff taking hydrocodone and the fact that Mr. Whitehead noted that the plaintiff was still having difficulties with her plantar fasciitis shortly before her employment termination, the undersigned cannot conclude that no reasonable jury could find that the plaintiff was a qualified individual when she also presented two medical releases authorizing her to return to work without restrictions, testimony regarding her improvement in symptoms while on leave, and medical records reflecting her improvement.
Undoubtedly, the termination of the plaintiff's employment constitutes an adverse employment action. See Thomas, 851 Fed.Appx. at 345. Further, as discussed below regarding pretext, the plaintiff has presented evidence that the defendants took this adverse action because of her disability through the defendants purportedly falsely accusing her of working at 7-Eleven while on leave, the severity of the defendants' response to a potential discrepancy in an outstanding physical therapy appointment that the plaintiff subsequently appeared to explain, and the evidence that the plaintiff had been otherwise performing her job well (docs. 27-1, Carter dep. 52:25-55:4; 59-6, Robinson dep. 42:19-43:7, 61:2-6; 59-1, Carter dep. 97:21-98:11; 59-19 at 1; 59-20 at 1; 57-31 at 1; 57-5 at 1).
ii. Nondiscriminatory Reason
The defendants assert that they terminated the plaintiff's employment because she was dishonest in stating that she had an outstanding physical therapy appointment (docs. 57-1 at 32; 65 at 13-14; 57-13 at 1-2; 57-28 at 1). Thus, the defendants have met their burden of producing a legitimate, nondiscriminatory reason for the plaintiff's employment termination.
iii. Pretext
Regarding pretext, a plaintiff must show that the legitimate reason produced by the defendant is not its true reason but was pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). Further, a plaintiff must show that her employer's discrimination was the but-for cause of the adverse employment action. See Gentry, 816 F.3d at 234; Davis v. W. Carolina Univ., 695 Fed.Appx. 686, 688 (4th Cir. 2017).
Here, the plaintiff has presented evidence that the defendants' stated reason, that she was dishonest, was pretext for discrimination. Specifically, the plaintiff testified that she never told Dr. Robinson or Nurse Drake that she had an outstanding physical therapy appointment (doc. 59-1, Carter dep. 102:16-23, 104:1-3). Further, the plaintiff informed the defendants at multiple points during the investigation that she only attended one physical therapy session due to her inability to afford the treatment and that Mr. Whitehead told her that she could do the exercises at home (docs. 59-1, Carter dep. 122:20-124:18; 59-7, Sigvertsen dep. 46:7-9; 59-18 at 3-5; 43-4 at 3; 57-31 at 1; 57-30 at 2; 57-32 at 1). Mr. Whitehead - in both his declaration and in a call with a doctor employed by the defendants - corroborated that he had this conversation with the plaintiff and permitted her to do the exercises at home (doc. 27-4, Whitehead decl. ¶¶ 7-8, 11). The plaintiff has also presented evidence that the defendants falsely accused her of other misconduct by accusing her of working at 7-Eleven while on leave (docs. 59-19 at 1; 59-20 at 1; 57-31 at 1). In addition, the severity of the defendants' response to a potential discrepancy in an outstanding physical therapy appointment that it appears the plaintiff subsequently explained could reflect that their stated reason was pretext for discrimination. Moreover, the record contains evidence that the plaintiff was otherwise meeting the defendants' expectations at work, as she had been promoted to a staple v&s a few months prior (docs. 57-5 at 1). Therefore, the undersigned finds that the plaintiff has presented some evidence that but-for her disability, her employment would not have been terminated. However, the defendants have also presented evidence that the plaintiff was dishonest about an outstanding physical therapy appointment and that they have terminated other individuals' employment for dishonesty (docs. 57-13 at 1-2; 57-28 at 1; 57-14 at 1-3; 57-15 at 1).
The defendants argue that the plaintiff cannot show pretext because there is no evidence to show that the decision makers did not honestly believe that the plaintiff was dishonest (doc. 57-1 at 32). The Fourth Circuit has found that a defendant was entitled to summary judgment on a plaintiff's race discrimination claim when the plaintiff failed to show that the decision maker who terminated her employment did not honestly believe that she engaged in misconduct by making threats. Holland v. Wash. Homes, Inc., 487 F.3d 208, 217-18 (4th Cir. 2007); see also Odom v. Int'l Paper Co., 652 F.Supp.2d 671,686 (E.D. Va. 2009) (noting that mere mistakes of fact about an employee's culpability are not evidence of discrimination), aff'd by 381 Fed.Appx. 246 (4th Cir. 2010). However, the undersigned finds that the plaintiff has presented evidence reasonably calling into question the honesty of the defendants' belief through her testimony that she never told Dr. Robinson or Nurse Drake that she had an outstanding physical therapy appointment, the consistency in her communications as to her assertions that she only attended one physical therapy session, and the defendants' other false accusation that she was working at 7-Eleven while on leave.
Further, even if the defendants honestly believed that the plaintiff had been dishonest, a reasonable jury could still infer that the defendants used this dishonesty as pretext for discrimination based on other evidence in the record, including evidence appearing to show that the plaintiff had been satisfactorily performing her job, the severity of the defendants' response after the plaintiff explained that she had in fact only been to one physical therapy session due to her inability to afford the treatment, and the other circumstantial evidence of pretext discussed above. See Westmoreland v. TWCAdmin. LLC, 924 F.3d 718, 729-30 (4th Cir. 2019) (finding that even if a defendant honestly believed that its employee violated company policy, the jury could have still reasonably inferred that the company used this violation as pretext for discrimination based on other evidence in the record, including, among others, the nature of her violation, her satisfactory work history, the severity of the defendant's response). Consequently, because genuine issues of material fact remain, the undersigned recommends that the district court deny the defendants' motion for summary judgment on the plaintiff's ADA discrimination claim regarding her employment termination.
2. ADA Unlawful Medical Inquiry
The plaintiff also argues that the defendants conducted a medical inquiry in violation of the ADA (docs. 9 at 4-5, 7; 59 at 39). The defendants submit that after they suspected that the plaintiff was dishonest about her outstanding physical therapy appointment, Nurse Drake followed up with Dr. Kinard's office to determine whether the plaintiff was providing false information to the defendants (doc. 57-1 at 34).
To support these assertions, the defendants cite to a deposition page that is not in the record.
Under the ADA, employers are forbidden from "mak[ing] inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability." 42 U.S.C. § 12112(d)(4)(A). Such inquiries are allowed, however, if "shown to be job-related and consistent with business necessity." Id. "Whether a medical inquiry is job-related and consistent with business necessity is an objective inquiry." Coffey v. Norfolk So. Ry. Co., 23 F.4th 332, 339 (4th Cir. 2022) (citation and internal quotation marks omitted). "The standard is met if the employer reasonably believes that an employee's medical condition impairs his ability to perform the essential functions of the job or the employee poses a direct threat to himself or others." Id. (citations and internal quotation marks omitted). "A business necessity must be based on more than mere expediency." Id. (citation and internal quotation marks omitted). Rather, "[t]he employer must show that the asserted business necessity is vital to the business and that the request is no broader or more intrusive than necessary." Id. (citation and internal quotation marks omitted).
The undersigned finds that Nurse Drake's phone call does not constitute a medical inquiry under the ADA. As set out above, the ADA prohibits employers from making inquiries as to whether an employee "is an individual with a disability or as to the nature or severity of the disability." 42 U.S.C. § 12112(d)(4)(A). The EEOC guidelines also provide that "[a] 'disability-related inquiry' is a question (or a series of questions) that is likely to elicit information about a disability. . . . Questions that are not likely to elicit information about a disability are not disability-related inquiries and, therefore, are not prohibited under the ADA." Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees under the Americans with Disabilities Act (ADA), 2000 WL 33407181, at *3. Here, Nurse Drake allegedly contacted Dr. Kinard's office about the plaintiff's attendance at physical therapy sessions, not regarding whether the plaintiff's plantar fasciitis was a disability or the nature or severity of her plantar fasciitis. Further, the undersigned finds that a question about attendance at appointments is unlikely to elicit information about the plaintiff's plantar fasciitis. Therefore, the undersigned recommends that the district court grant summary judgment to the defendants on the plaintiff's unlawful medical inquiry claim under the ADA.
3. FMLA Interference
Under her FMLA interference claim, the plaintiff alleges that the defendants interfered with her rights under the FMLA by (1) not providing her with proper notice through a WH-382 form or of her exhaustion date, (2) interfering with her taking of leave, and (3) interfering with her right to reinstatement through obtaining a second opinion (docs. 9 at 5; 59 at 21-22). The FMLA provides that "[i]t shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right" under the FMLA. 29 U.S.C. § 2615(a)(1). "To make out an 'interference' claim under the FMLA, an employee must thus demonstrate that (1) [s]he is entitled to an FMLA benefit; (2) [her] employer interfered with the provision of that benefit; and (3) that interference caused harm." Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). "Under the FMLA, an eligible employee is entitled to 12 workweeks of leave during any 12-month period due to 'a serious health condition that makes the employee unable to perform the functions of such employee.'" Boone v. Bd. of Governors of Univ. of N.C. , 858 Fed.Appx. 622, 624 (4th Cir. 2021) (quoting 29 U.S.C. § 2612(a)(1)(D)). At the end of an employee's FMLA leave, the employee shall be entitled "to be restored by the employer to the position of employment held by the employee when the leave commenced." 29 U.S.C. § 2614(a)(1)(A). "If the employee is unable to perform an essential function of the position because of a physical or mental condition," however, "the employee has no right to restoration to another position under the FMLA." 29 C.F.R. § 825.216(c).
Regarding her claim that she did not receive proper notice, the defendants argue that they are entitled to summary judgment because this is a new, unpled claim raised in response to their motion (doc. 65 at 1-2). The undersigned agrees. While the plaintiff raised allegations in her amended complaint that the defendants interfered with her taking of leave and her right to reinstatement due to an unlawful second opinion, she did not raise any factual allegations regarding the defendants failing to provide her with proper notice or her lack of knowledge that her FMLA leave was exhausted on November 26th (see doc. 9). Additionally, the plaintiff did not raise this claim in either of the charges that she filed with the EEOC or in her answers to interrogatories (see docs. 4; 16; 34; 42-8; 56-45; 57-45; 59-25). In fact, the plaintiff was asked and answered an interrogatory on the basis of her FMLA interference claims as follows:
INTERROGATORY NO. 7:
With respect to your contention that Ascend "interfered with, restrained," and/or "denied" (as those terms are used in Count I of the Complaint) your exercise of, or your attempt to exercise, rights provided under the FMLA in violation of 29 U.S.C. § 2615(a)(1), identify all such rights that were interfered with, restrained, and/or denied, and, for each right so identified:
(1) state whether you contend the right was interfered with, whether it was restrained, or whether it was denied; and
(2) describe every act or omission that interfered with, restrained, and/or denied each right identified, including identifications of all person(s) involved in the act or omission, identifications of all witnesses to the act or omission, the dates, locations, and Mediums of the act or omission, and identification of all documents regarding the act or omission.
RESPONSE: Plaintiff objects on the grounds that this interrogatory assumes that the actions set forth in Section 105(a)(1) are mutually exclusive. Plaintiff is not sure what specifically Defendant is seeking. Plaintiff was denied reinstatement and was fired. There appears to be no dispute about that. Nor does there appear to be a dispute about who took the actions about which she complains. This not only was retaliation, but it was to preclude her from ever exercising additional rights.(Doc. 57-45 at 3-4).
The Fourth Circuit addressed a similar issue in Harris v. Reston Hospital Center, LLC, 523 Fed.Appx. 938 (4th Cir. 2013). There, the district court declined to consider a plaintiff's new argument in her response to the defendant's motion for summary judgment that she had satisfied the "record-of" prong to show disability under the ADA when she had previously only argued that she satisfied the "regarded-as" prong. Harris v. Reston Hosp. Ctr., LLC, C/A No. 1:10-cv-1431,2012 WL 1080990, at *4-5 (E.D. Va. Mar. 26, 2012). The district court noted that the plaintiff also did not raise the "record-of theory in her charge of discrimination filed with the EEOC, in her amended complaint, in her answers to interrogatories, or at her deposition. Id. at *4. Thus, the district court concluded that the plaintiff's new theory amounted to a constructive amendment of the amended complaint and would unfairly prejudice the defendant if considered. Id. On appeal, the Fourth Circuit affirmed, noting that "[b]ecause a complaint guides the parties' discovery, putting the defendant on notice of the evidence it needs to adduce in order to defend against the plaintiff's allegations, constructive amendment of the complaint at summary judgment undermines the complaint's purpose and can thus unfairly prejudice the defendant." Harris, 523 Fed.Appx. at 946 (citations and internal quotation marks omitted). The Fourth Circuit continued, "Allowing this new theory, asserted in a response brief no less, to defeat Appellee's motion would amount to constructive amendment of the controlling complaint, placing a clear burden on Appellee's ability to effectively and efficiently defend itself." Id. at 946-47 (internal citations and quotation marks omitted).
Likewise, here, the plaintiff may not now attempt to base her claim or defeat a motion for summary judgment under a new theory that is based on factual allegations not pled in her amended complaint. See Barclay White Skanska, Inc. v. Battelle Mem'l Inst., 262 Fed.Appx. 556, 563 (4th Cir. 2008) ("A plaintiff may not amend her complaint through argument in a brief opposing summary judgment."); Taylorv. Cudd, C/A No. 7:18-cv-00765, 2020 WL 967447, at *3 (D.S.C. Feb. 28, 2020) (finding that a plaintiff could not raise an additional claim in response to the defendant's motion for summary judgment) (citing Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 400 (6th Cir. 2007) (holding that a party may not expand its claims to assert new theories in response to summary judgment)); Brownlee v. West Fraser, Inc., C/A No. 8:12-cv-00857, 2015 WL 628179, at *5 (D.S.C. Feb. 12, 2015) ("The purpose of the rules governing pleading and discovery is to put the opposing party on notice about the underlying basis of each side's case. . . . Accordingly, the court declines to allow [the plaintiff] to assert new theories of the case not disclosed or asserted for three years[.]")
Additionally, the undersigned recommends that the district court find that the defendants are entitled to summary judgment on the plaintiff's claim that the defendants interfered with her taking of leave, as she received the full 12 weeks of FMLA leave to which she was entitled. See Boone, 858 Fed.Appx. at 624 (finding that a plaintiff failed to show that her employer interfered with her FMLA rights when she received the full 12 weeks of FMLA leave and did not attempt to return to work until several weeks after her FMLA leave expired).
Moreover, the undersigned finds that summary judgment is warranted for the defendants on the plaintiff's claim that the defendants interfered with her right to reinstatement, as she did not attempt to return to work at the conclusion of the 12 weeks of her FMLA leave and therefore lost her right to reinstatement. Instead, the plaintiff requested and was granted further leave for continued treatment. Moreover, the text of the FMLA and the Code of Federal Regulations provide that an employee is entitled to restoration to the position of employment that the employee held at the commencement of his FMLA leave but that such entitlement is lost if the employee is unable to perform the essential functions of his position. 29 U.S.C. § 2614(a)(1)(A); 29 C.F.R. § 825.216(c). Numerous courts in this circuit have interpreted these provisions as providing that an employee who does not attempt to return to work at the end of his leave, but instead requests additional leave, loses his right to reinstatement. See Boone v. Bd. of Governors of Univ. of N.C. , C/A No. 1:17-cv-113, 2018 WL 1620971, at *7 (M.D. N.C. Mar. 30, 2018) ("Plaintiff's right to job restoration under the FMLA expired at the end of her FMLA leave period . . . . Thus, even though Plaintiff was granted additional eave beyond the FMLA period, her job restoration rights under the FMLA were not likewise extended.") (citations omitted), aff'd by 858 Fed.Appx. 622 (4th Cir. 2021); Wallace v. Rite Aid Corp., C/A No. PJM 10-2190, 2012 WL 366896, at *3 (D. Md. Feb. 1, 2012) ("Once Wallace's FMLA leave expired, Rite Aid was entitled to treat him as they would any other employee and hold him responsible for coming to work."); Hall v. Grant Cnty. Bd. of Educ., C/A No. 2:07-cv-98, 2009 WL 10710240, at *6 (N.D. W.Va. Jan. 28, 2009) ("Plaintiff also claims he was entitled to reinstatement after his FMLA leave, but plaintiff errs because he is only entitled to reinstatement if he is able to resume all essential functions of his position at the end of his 12 weeks of FMLA leave. . . . The FMLA grants eligible employees 12 weeks of leave per year for a serious medical condition. . . . After which any protections guaranteed by the FMLA expire.") (emphasis in original); Drumheller v. Cent. Va. Elec. Coop., C/A No. 3:06-CV-00010, 2006 WL 2403334, at *7 (W.D. Va. Aug. 18, 2006) ("To put a spin on the famous quotation by Yogi Berra, who said 'It ain't over til it is over,' one might say under the FMLA, 'When it's over, it's over.' ... [O]nce the twelve week period has expired, the time to claim entitlement to benefits under the FMLA cannot be enlarged or recaptured because no violation of the Act has occurred within the statutory benefit period.") (citations omitted). The undersigned finds these cases persuasive and therefore recommends that the district court grant summary judgment to the defendants on the plaintiff's FMLA interference claim.
4. FMLA Retaliation
The plaintiff also argues that the defendants retaliated against her in violation of the FMLA by denying her reinstatement and terminating her employment (doc. 59 at 22-29). To establish a prima facie case of retaliation under the FMLA, a plaintiff must show that (1) she engaged in a protected activity; (2) the employer took an adverse employment action against her; and (3) the adverse action was causally connected to the plaintiff's protected activity. Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016). Unlike interference claims, employer intent is relevant in retaliation claims. Id. (citations omitted).
As an initial matter, the plaintiff argues that the undersigned should analyze the causation element of this claim by applying a negative factor causation standard instead of looking for direct evidence or under the McDonnell Douglas framework (doc. 59 at 22-23, 25). The FMLA provides as follows:
(a) Interference with rights
(1) Exercise of rights It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter.
(2) Discrimination It shall be unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this subchapter.29 U.S.C. § 2615(a)(1)-(2). Relying on 29 C.F.R. § 825.220(c), the plaintiff argues that (a)(1) applies to her claim and that (a)(1) only requires negative factor causation (doc. 59 at 22-25). This regulation provides as follows:
The Act's prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies.29 C.F.R. § 825.220(c).
In Yashenko v. Harrah's NC Casino Co., LLC, the Fourth Circuit has interpreted (a)(1) as providing for prescriptive rights and forming the basis for interference claims. 446 F.3d 541, 546 (4th Cir. 2006). Additionally, the court recognized that (a)(2) provides for proscriptive rights and forms the basis of discrimination and retaliation claims. Id. Further, the Fourth Circuit has held that claims arising under (a)(2) are analyzed by either looking to direct evidence or under McDonnell Douglas. Waag v. Sotera Defense Solutions, Inc., 857 F.3d 179, 191 (4th Cir. 2017).
Recently, however, in Fry v. Rand Construction Corporation, the Fourth Circuit noted in dicta that a plaintiff may be able to bring a retaliation claim under (a)(1). 964 F.3d 239, 245-46 (4th Cir. 2020). The Fourth Circuit noted that the Department of Labor issued a regulation after Yashenko suggesting that retaliation claims may arise under (a)(1). Id. at 245 (citing 73 Fed.Reg. 67986 (Nov. 17, 2008) ("[T]he Act's prohibition on interference in 29 U.S.C. § 2615(a)(1) includes claims that an employer has discriminated or retaliated against an employee for having exercised his or her FMLA rights.")). The Fourth Circuit further noted that the Supreme Court of the United States has found that "a prior panel's interpretation of an ambiguous statute is not binding when the panel decision is overcome by an intervening, authoritative, and reasonable agency interpretation." Id. (citing Nat'l Cable & Telecomms. Assn v. BrandXInternet Servs., 545 U.S. 967, 982-83 (2005)). Thus, the Fourth Circuit concluded that the Department of Labor's "regulation might require us, despite Yashenko, to find that retaliation-for-exercise claims fall under subsection (a)(1)." Id. at 245-46 (emphasis in original). Nevertheless, the court ultimately declined to decide the issue, as the plaintiff proceeded under McDonnell Douglas. Id. at 246.
However, subsequent to the issuance of the Department of Labor regulation, the Fourth Circuit has continued to apply (a)(2) and McDonnell Douglas to FMLA retaliation claims. See e.g., Hannah P. v. Coats, 916 F.3d 327, 347 (4th Cir. 2019); Waag, 857 F.3d at 191; Sharif, 841 F.3d at 203; Vannoy v. Fed. Rsrv. Bank of Richmond, 827 F.3d 296, 304 (4th Cir. 2016). Notably, subsequent to Fry, the Fourth Circuit again examined the issue of employer intent in an FMLA retaliation claim by applying McDonnell Douglas, unlike a claim arising under (a)(1) where employer intent is irrelevant. See Boone, 858 Fed.Appx. at 624.
Therefore, despite the Fourth Circuit's dicta casting doubt on the unavailability of (a)(1) for FMLA retaliation claims, the Fourth Circuit ultimately declined to address the issue and has continued to examine employer intent, apply (a)(2), and look to direct evidence and the McDonnell Douglas framework for FMLA retaliation claims. Therefore, based on the current precedent, the undersigned declines to apply a negative factor causation standard and will analyze the plaintiff's claim for direct evidence and/or under McDonnell Douglas herein.
a. Denial of Reinstatement
Like with the plaintiff's ADA discrimination claim based on the defendants denying her reinstatement and keeping her on paid leave, the undersigned finds that the plaintiff has failed to show that the defendants took an adverse action against her under the standard for retaliation claims under the FMLA. The Fourth Circuit has applied the standard set forth in Burlington Northern and Santa Fe Railway Corpration, 548 U.S. 53 (2006) to retaliation claims under the FMLA. See Csicsmann v. Sallada, 211 Fed.Appx. 163, 168 (4th Cir. 2006). In Burlington Northern, the Supreme Court stated that to establish an adverse action for a retaliation claim “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." 548 U.S. at 68 (citations and internal quotation marks omitted). Applying that standard here, the undersigned concludes that a reasonable employee would not have found an employer denying her reinstatement and keeping her on paid leave with benefits to be materially adverse. See e.g., Lacasse v. Didlake, Inc., 194 F.Supp.3d 494, 504 (E.D. Va. 2016) (holding, in the context of a retaliation claim and the standard set forth in Burlington Northern, that "[p]aid leave is not an adverse employment action"), aff'd by 712 F. App'x 231 (4th Cir. 2018); Mason, 2013 WL 6585928, at *5 (noting, in the context of a retaliation claim, that "placing an employee on paid administrative leave with full benefits is typically not considered a materially adverse action") (collecting cases); Sturdivant v. Geren, C/A No. 1:09-cv-586, 2009 WL 4030738, at *6 (E.D. Va. Nov. 19, 2009) (“The courts have held that placing an individual on paid administrative leave does not constitute an adverse employment action in the discrimination context or in the retaliation context, even postBurlington Northern.”) (collecting cases). Therefore, the undersigned recommends that the district court grant summary judgment to the defendants on the plaintiff's FMLA retaliation claim regarding her denial of reinstatement.
b. Employment Termination
Because the plaintiff proceeds under McDonnell Douglas for her employment termination claim, the undersigned will address her claim under that framework herein. It is undisputed that the plaintiff has shown that she engaged in a protected activity by taking FMLA leave and that the defendants took an adverse action against her by terminating her employment. However, the defendants argue that the plaintiff is unable to show a causal link between the FMLA leave and the termination of her employment (doc. 57-1 at 16).
"[C]lose temporal proximity between activity protected by the [FMLA] and an adverse employment action may suffice to demonstrate causation." Waag, 857 F.3d at 192 (citation omitted). As discussed above, the plaintiff's FMLA leave ended on November 26, 2019, and her employment termination became effective on March 10, 2020. The undersigned finds that this period of about three and a half months is sufficient to satisfy the less onerous burden of a causal connection at the prima facie stage. See King v. Rumsfeld, 328 F.3d 145, 151 n.5 (4th Cir. 2003) (finding that a two-and-a-half month gap between protected activity and an adverse employment action was sufficiently narrow to establish the causation prong of the prima facie case solely on the basis of temporal proximity); Carter v. Ball, 33 F.3d 450, 460 (4th Cir. 1994) (finding an almost six month period between the plaintiff's filing of retaliation complaints and his demotion to be sufficient temporal proximity for purposes of the his prima facie case). Moreover, beyond temporal proximity, the plaintiff has presented other relevant evidence of a causal connection, as discussed below in the pretext analysis.
The defendants argue that the plaintiff cannot show causation because an intervening event, the defendants' investigation finding that the plaintiff was dishonest, breaks any causal chain (doc. 57-1 at 16) (citing Busha v. S.C. Dep't of Mental Health, C/A No. 6:18-cv-23337-DCC-KDW, 2020 WL 6218803 (D.S.C. May 18, 2020), R&R adopted in part by 2020 WL 5793357 (D.S.C. Sept. 29, 2020)). In Busha, the court found that a plaintiff's misconduct related directly to her termination and broke any causal chain in her ADA retaliation claim. Id. at *10. However, even applying that here, the court cannot conclude that there was an intervening event that broke the causal chain because genuine issues of material fact remain regarding whether the plaintiff was dishonest. Therefore, the undersigned finds that the plaintiff has satisfied the prima facie case of retaliation.
Regarding a legitimate, nondiscriminatory reason, the defendants assert that they terminated the plaintiff's employment based on her dishonesty and have produced some evidence to support their assertion (docs. 57-1 at 16-17; 65 at 8-10; 57-13 at 1-2). Thus, the defendants have satisfied their burden of production.
The plaintiff, however, argues that the defendants' proffered reason is pretext for retaliation (doc. 59 at 27-29). As set out above, "[t]o carry this burden, [the plaintiff] must establish both that the employer's reason was false and that [retaliation] was the real reason for the challenged conduct." Fry, 964 F.3d at 246 (citations and internal quotation marks omitted). Moreover, "the McDonnell Douglas framework has long demanded proof that the pretext stage that retaliation was a but-for cause." Id. (citations and internal quotation marks omitted).
The undersigned finds that the plaintiff has produced evidence showing that the defendants' nondiscriminatory reason may be false. For example, genuine issues of material fact remain regarding the plaintiff's alleged dishonesty, as the plaintiff testified that she never told Dr. Robinson or Nurse Drake that she had an outstanding physical therapy appointment (doc. 59-1, Carter dep. 102:16-23, 104:1-3). Further, the plaintiff informed the defendants at multiple points in December 2019 that she only attended one physical therapy session due to her inability to afford the treatment and that Mr. Whitehead told her that she could do the exercises at home (docs. 59-1, Carter dep. 122:20-124:18; 59-7, Sigvertsen dep. 46:7-9; 59-18 at 3-5; 43-4 at 3; 57-31 at 1; 57-30 at 2; 57-32 at 1). Mr. Whitehead corroborated that he had this conversation with the plaintiff and permitted her to do the exercises at home (docs. 27-4, Whitehead decl. ¶¶ 7-8, 11). While the fact that the defendants offered the plaintiff an additional period of leave after the expiration of her FMLA leave does undermine her argument that the defendants retaliated against her for exercising her FMLA rights, see Boone, 858 Fed.Appx. at 624-25, there still remains circumstantial evidence of retaliatory animus. Specifically, the plaintiff has presented evidence that some of the defendants involved in her termination decision were aware of her FMLA status, and, in addition to the dishonesty accusation, these defendants falsely accused her of other misconduct while she was on FMLA leave by accusing her of working at 7-Eleven (docs. 59-19 at 1; 59-20 at 1; 57-31 at 1). Further, the severity of the defendants' response to a potential discrepancy in an outstanding physical therapy appointment, that it appears the plaintiff subsequently explained, could reflect retaliatory animus. In addition, while there were about three and a half months between the conclusion of her FMLA leave and her employment termination, the defendants never allowed the plaintiff to return to work after she began her FMLA-protected leave. Therefore, based on the foregoing, the undersigned cannot conclude that no reasonable jury could find that the defendants' proffered reason was pretext and that her employment would not have been terminated but for her taking FMLA leave.
The defendants again argue that the plaintiff cannot show pretext because there is no evidence to show that the decision makers did not honestly believe that the plaintiff was dishonest (doc. 57-1 at 19-20). However, as set out above in the plaintiff's ADA discrimination claim, the undersigned finds that the plaintiff has presented evidence reasonably calling into question the honesty of the defendants' belief, including the plaintiff's testimony that she never told Dr. Robinson or Nurse Drake that she had an outstanding physical therapy appointment, the consistency in the plaintiff's communications that she only attended one physical therapy session, and the defendants' other alleged false accusation that the plaintiff was working at 7-Eleven while on leave. Further, even if the defendants honestly believed that the plaintiff was dishonest, a reasonable jury could still infer that the defendants used this dishonesty as pretext for retaliation based on other evidence in the record, including evidence appearing to show that the plaintiff had been satisfactorily performing her job, the severity of the defendants' response after the plaintiff explained that she had in fact only been to one physical therapy sessions due to her inability to afford the treatment, and the other circumstantial evidence of pretext discussed above. See Westmoreland, 924 F.3d at 729-30 (finding that even if a defendant honestly believed that its employee violated company policy, the jury could have still reasonably inferred that the company used this violation as pretext for discrimination based on other evidence in the record, including, among others, the nature of her violation, her satisfactory work history, the severity of the defendant's response). Consequently, the undersigned recommends that the district court deny summary judgment to the defendants on the plaintiff's FMLA retaliation claim regarding her employment termination.
III. CONCLUSION AND RECOMMENDATION
Wherefore, based on the forgoing, the court finds that the defendants' amended motion to stay (doc. 35) is moot. Further, the court recommends that the district court deny the plaintiff's partial motion for summary judgment (doc. 27) and deny Ascend Holdings' motion for summary judgment (doc. 56). The court further recommends that the district court grant in part and deny in part the defendants' joint motion for summary judgment (doc. 57). Specifically, the court recommends that the district court deny summary judgment on the plaintiff's claims for ADA discrimination regarding her employment termination and FMLA retaliation regarding her employment termination. Moreover, the court recommends that the district court grant summary judgment as to the plaintiff's claims for ADA discrimination regarding her denial of reinstatement, ADA unlawful medical inquiry, FMLA interference, and FMLA retaliation regarding her denial of reinstatement.
IT IS SO RECOMMENDED.