Opinion
Civil Action No. 0:99-4016-17BC
February 22, 2001
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
The plaintiff, Ronald W. Conley ("Conley"), filed his complaint in this court on December 6, 1999. He alleges that the defendant, Belden Wire Cable Company, Inc. ("Belden"), violated his rights under the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq ("ADA").' Belden filed a motion for summary judgment on July 3, 2000. Conley filed a memorandum in opposition to the motion for summary judgment on August 17, 2000. On August 25, 2000, Belden filed a reply memorandum.
Pretrial matters in this case were referred to the undersigned pursuant to Rule 73.02(B)(2)(g), DSC. Because this is a dispositive motion, this report and recommendation is entered for review by the court.
SUMMARY JUDGMENT STANDARD
When no genuine issue of any material fact exists, summary judgment is appropriate. Shealy v. Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the evidence must be viewed in the light most favorable to the non-moving party. Id. Courts take special care when considering summary judgment in employment discrimination cases because states of mind and motives are often crucial issues. Ballinger v. North Carolina Agric. Extension Serv., 815 F.2d 1001, 1005 (4th Cir.), cert. denied, 484 U.S. 897 (1987). This does not mean that summary judgment is never appropriate in these cases. To the contrary, "`the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."' Id. (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. 242 (1986)). "Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice." Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985).
In this case, defendant "bears the initial burden of pointing to the absence of a genuine issue of material fact." Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991), cert. denied, 502 U.S. 1095 (1992) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If defendant carries this burden, "the burden then shifts to the non-moving party to come forward with facts sufficient to create a triable issue of fact." Id. at 718-19 (citing Anderson, 488 U.S. at 248-48).
Moreover, "once the moving party has met his burden, the nonmoving party must come forward with some evidence beyond the mere allegations contained in the pleadings to show there is a genuine issue for trial."Baber v. Hosp. Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The non-moving party may not rely on beliefs, conjecture, speculation, or conclusory allegations to defeat a motion for summary judgment. Id. andDoyle v. Sentry Inc., 877 F. Supp. 1002, 1005 (E.D.Va. 1995). Rather, the non-moving party is required to submit evidence of specific facts by way of affidavits see Fed.R.Civ.P. 56(e), depositions, interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue for trial. Baber, citing Celotex Corp., supra. Moreover, the non-movant's proof must meet "the substantive evidentiary standard of proof that would apply at a trial on the merits." Mitchell v. Data General Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) and DeLeon v. St. Joseph Hospital Inc., 871 F.2d 1229, 1233 (4th Cir. 1989), n. 7, cert. denied, 493 U.S. 825 (1989). Unsupported hearsay evidence is insufficient to overcome a motion for summary judgment. Martin v.John W. Stone Oil Distrib., Inc., 819 F.2d 547 (5th Cir. 1987) and Evans v. Technologies Applications Services Co., 80 F.3d 954 (4th Cir. 1996).
FACTS
1. Conley's left eye was injured in a dynamite explosion when he was five years old. He is essentially blind in that eye, and is only able to distinguish some light in the lower portion of the eye. Conley I Dep. 56, 61; Conley II Dep. 5. Conley looks at things at an angle to compensate for his diminished vision in his left eye. Conley I Dep. 57. Conley claims that the wearing of safety glasses with side shields obstructs his limited vision.
2. After graduating from high school, Conley worked for many years in various jobs, including retail sales and the insurance industry. In 1992, Conley earned an associates degree in electro-optic engineering and fiber optics. He went to work for Sumitomo Electric, a fiber optic and cable manufacturing company, in 1993. Conley I Dep. 6-9. Sumitomo policies required that safety glasses with side shields be worn. Conley, however, was allowed to sign a waiver releasing Sumitomo of liability in the event his eyes were injured in the plant, and did not wear side shields while employed there. Conley I Dep. 65, 69.
3. Belden earned a bachelor's degree in business administration in 1996.
4. In August 1997, Belden hired Conley as a fiber optics process engineer in its Charlotte, North Carolina plant. Conley's supervisor was Don Larsen ("Larsen"). Conley I Dep. 12.
The plant was later moved to Fort Mill, South Carolina.
5. Belden designs, manufactures, and markets wire, cable, and fiber optic products for electronic and telecommunications applications.
6. Conley's job responsibilities included the development and maintenance of an efficient manufacturing process for fiber optics. Larsen Dep. 8; Jennings Aff., ¶ 6.
7. At the time Conley began working at Belden, the company had a non-mandatory policy concerning the use of safety glasses with side shields. He states that he asked and received permission from the personnel manager at the time to not wear the shields. Conley states that he wore safety glasses without shields when he was on the production floor, and wore "other type glasses" over his glasses if he was in the shop where employees were grinding or cutting. Conley I Dep. 84.
8. In 1997, Belden conducted a hazard assessment of its workplace as required by the Occupational Safety and Health Administration ("OSHA") regulations established under the Occupational Safety and Health Act.See 29 U.S.C. § 651 et seq.; 29 C.F.R. § 1910.132. The hazard assessment revealed that employees working on the manufacturing floor were at significant risk for eye injuries because the manufacturing process involved spinning cables at a high rate of speed. Charlotte Cabrol ("Cabrol"), the Fort Mill plant manager of human resources, stated that, in order protect employees and to comply with OSHA regulations, a safety glass policy for all employees was implemented toward the end of 1997. Cabrol Dep. 7. Cabrol Dep. 7, Larsen Dep. 24.
9. In approximately October 1998, Belden officials told Conley that he would have to wear side shields. Conley I Dep. 68. Conley informed Cabrol of his problems with the side shields.
10. Cabrol confirmed that Conley told her that he could not wear the side shield because it reduced his peripheral vision. Cabrol Dep. 16-17.
11. Conley admitted that Larsen worked with him from October to November 1998 to develop a solution to the eye shield problem; he was offered a set of goggles, but he found them unacceptable; and the possibility of another set of prescription glasses was discussed. Conley I Dep. 79-80.
12. In November 1998, Belden asked Dr. Scott Jaben to assess Conley's vision and "urge him to wear side shields. Conley Dep. 1, Ex. 11; Cabrol Dep. 20-22. Dr. Jaben reported that Conley had good vision in his right eye correctable to 20/30, but that Conley only saw hand motions in his left eye. Dr. Jaben further stated:
I certainly would agree that for maximum protection an eye shield would be beneficial or at least some sort of protection to the lateral portion of the eye. However, I think that a simple solution to your problem would be for you to have Mr. Conley sign a waiver or release form indicating that he would release you of any liability that may result from an injury that could have been prevented by the eye shields which you have recommended.
* * * * *
P.S. I have indicated to Mr. Conley that it is my general rule to encourage all monocular patients to wear maximum protection at all times of increased risk because of the obvious need to protect his only seeing eye.
Conley I Dep., Ex. 12. Conley stated that he understood that the purpose of the visit was to see if he was disabled or had a vision problem, and to determine what Belden could do to help him with safety glasses. Conley I Dep. 82.
13. Conley claims that Larsen told him on January 3, 1999, that Cabrol was "on the war path again" about the side shields. Conley I Dep. 90.
14. On January 17, 1999, Larsen gave Conley a pair of clear shields that a Belden employee used when inspecting the plant. Conley lost the shields and asked Larsen if he could locate another pair. These shields were clear, did not obstruct Conley's vision to the extent of other shields, and Conley could move them out of the way if necessary. Conley I Dep. 102-112.
15. On January 26, 1999, Larsen completed a performance evaluation for Conley, indicating that Conley consistently "met" Belden's "high requirements and standards of performance." The evaluation also noted that Conley was "short tempered" and needed to "learn better control", but did not cite any particular incidents. Larsen Dep., Ex. 1.
Overall performance ratings had four categories "Exceeds Expectations, Meets Expectations, Below Expectations, and Too New to Evaluate." Larsen Dep., Ex. 1.
16. Larsen also told Conley on January 26, 1999, that Dan Jennings ("Jennings"), the plant manager, had ordered that Conley wear the side shields by February 2. 1999, or Conley would be terminated. Conley I Dep. 105; Larsen Dep., Ex. 2.
17. Conley relocated the clear side shields on approximately January 27, 1999, and wore them thereafter, except for one week in February when he left them in his other car. Conley I. Dep. 105-112.
18. On approximately February 17, 1999, Larsen indicated to Conley that the clear side shields were not acceptable according to Cabrol and directed that Conley wear the other side shields. Conley I Dep. 112-113. Cabrol stated that the clear shields did not comply with not American National Standards Institute ("ANSI") Z87 standards as required by OSHA regulations. Cabrol Dep 23-24.
19. Scott Buford ("Buford") worked with Conley as a production manager. He was not Conley's supervisor. Buford Dep. 27-28. Conley claims that he and Buford frequently bantered back and forth with each other, which sometimes included cursing. Conley I. Dep. 29-32.
20. On Tuesday, March 2, 1999, Conley had a conversation with Buford and complained that Buford had taken two people who were helping Conley and placed them in another department. During the course of the conversation, Conley remarked that Buford had a "shitty" management style. Conley I Dep. 32-35.
Buford claims that earlier that day he observed Conley outside of his work area looking for something, and that Buford told Conley "there's nothing for you over here" to which Conley replied "you're fucking us." Buford Dep. 10. Conley testified that he did not remember making that comment. Conley I Dep. 38.
21. Later that day, Conley was helping Steve Ranhosky ("Ranhosky"), an hourly employee. A line broke on one of the machines and Conley asked Ranhosky if he was "thinking okay." Ranhosky "got upset" by this statement and "threw up his hands and walked away." Buford saw Ranhosky walking off and asked him what was wrong. Conley, Buford, Ranhosky and George McKemey (Ranhosky's supervisor) then met with Larsen to discuss the incident. See Conley I Dep. 36-37, Buford Dep. 20-21.
22. After Ranhosky and McKemey left the meeting, Conley told Larsen about problems he was experiencing as a result of things Buford was doing. During this conversation, Conley again stated that Buford had a "shitty" management style, at which point Buford left the meeting. Conley I Dep. 40-42; Buford Dep. 25; Larsen Dep. 39-40.
23. Conley testified that after Buford left, Larsen stated that the shields Conley was using were not acceptable, and that if Conley did not use the other type of shields he would be fired. Conley further claims that Larsen asked him if he could wear the other shields and go back on the floor with a "good attitude"; he stated that he did not know because he was under a lot of stress; and Larsen told him to take the rest of the week off, and to come back wearing the other side shields. Conley I Dep. 42-49. Larsen claims that the only time the side shields were mentioned during this meeting was when Conley asked if "this was about the side shields" and that he merely told Conley that he needed some days off Larsen Dep. 42.
Conley's mother passed away in early February 1999.
24. Larsen and Cabrol called Conley at home on Friday, March 5, and informed him that his employment had been terminated for "unacceptable and inappropriate behavior" related to Buford. Conley I Dep., 49-50; Larsen Dep. 43.
25. Conley filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC") on April 17, 1999, alleging violation of the ADA and retaliation.
26. On September 13, 1999, the EEOC issued a right-to-sue notice, finding that it was unable to conclude that the information obtained established violations of the statutes. Conley I Dep., Ex. 17.
DISCUSSION
Conley alleges that Belden discriminated against him violation of the ADA in that (1) he was never afforded the reasonable accommodation which he and his examining physician requested; (2) he was subjected to threats, harassment, and intimidation because of his disability; and (3) he was ultimately discharged from employment because of his disability or Belden's perception of his disability. Belden argues that it is entitled to summary judgment because: (1) Conley is not disabled as defined by the ADA; (2) Conley's requested accommodation would have required Belden to violated specific OSHA safety standards, and therefore, was per se unreasonable; and (3) Conley was discharged for repeatedly displaying inappropriate and insubordinate behavior.
Congress passed the ADA "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(2). The Act became effective on July 26, 1992.
The Act [§ 12112(a)] provides in part:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual 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). According to the Act the term "discriminate" includes:
Belden has not argued that it is not a covered entity.
denying employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.42 U.S.C. § 12112(b)(5)(B). The Act further defines "reasonable accommodation" to include:
job restructuring, part-time or modified work schedules, reassignment to a vacant position . . . and similar accommodations for individuals with disabilities.42 U.S.C. § 12111(9)(B).
In order to establish a violation of the ADA, the plaintiff had to establish that: (1) he or she had a disability; (2) he or she was "qualified" for the job; and (3) he or she was terminated due to his or her disability. Tyndall v. National Education Centers Inc. of California, 31 F.3d 209 (4th Cir. 1994)
The parties have both utilized the Tyndall framework in their arguments.
A. Disability
Conley argues that he is disabled because he is essentially blind in his left eye, and has significant visual restrictions as a result. Specifically, he argues that he is disabled because the use of side shields on safety glasses greatly impairs his peripheral vision in his right eye, which he uses to compensate for the severely diminished sight in his left eye. Belden argues that the plaintiff is not disabled under the ADA, because his condition does not substantially impair any of his major life activities.
Under the ADA, disability is defined as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
"A physical impairment, standing alone, is not necessarily a disability as contemplated by the ADA. The statute requires an impairment that substantially limits one or more of the major life activities." Dutcher v. Ingalls Shipbuilding, 53 F.3d 723, 726 (5th Cir. 1995). "Major life activity" is defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2 (i). "Substantially limits" is defined as:
(i) unable to perform a major life activity that the average person in the general population can perform, or
(ii) significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.29 C.F.R. § 1630.2(j)(l). The ADA regulations specify three factors relevant in considering whether an impairment substantially limits a major life activity: "(i) [t]he nature and severity of the impairment; (ii) [t]he duration or expected duration of the impairment; and (iii) [t]he permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment." 29 C.F.R. § 1630.2(j)(2); see also Bolton v. Scrivner, 36 F.3d 939, 943 (10th Cir. 1994), cert. denied, 513 U.S. 1152 (1995).
The statutory definition of disability requires that any impairment be evaluated "with respect to an individual, " thus the inquiry must focus on whether Conley's condition substantially limits his own ability to see as opposed to any generally known limitations of his specific condition. 42 U.S.C. § 12102(2); see Sutton v. United Air Lines. Inc., 527 U.S. 471 (1999) (whether a person has a disability under the ADA is an individualized inquiry); Albertson's. Inc. v. Kirkingburg, 527 U.S. 555,__; 119 S.Ct. 2162, 2169 (1999) (the ADA requires a plaintiff to prove a disability by offering evidence that the extent of the limitation is substantial in terms of his own experience).
Conley fails to show that he had a "disability" as defined under the ADA because he fails to show that his visual impairment substantially limits one of his major life activities. See, e.g., Pacella v. Tufts Univ. Sch. of Dental Med., 66 F. Supp.2d 234 (D.Mass. 1999) (expelled dental student with essentially monocular vision did not have a "disability" because his impairment did not substantially limit a major life activity such as seeing or learning). Significantly, Conley testified: "My vision as it is without the side shields or without the restrictions, no, it does not have an affect on me." Conley I Dep. 60. He stated that he was able to compensate for his impairment by looking at things at an angle such that he got "a very good view." Conley I Dep. 57, 62-63. Conley is able to drive a car, use a computer, and play cards, despite his impairment. Conley I Dep. 57-58. Conley stated that his vision impaired his ability to drive a race car, play sports, and to fly a plane (Conley I Dep. 62-63), but the prohibition of these activities fails to show that his impairment substantially limits his ability to see or work. Further, despite his impairment, Conley was able to obtain a college degree and hold jobs in a number of fields. Although Conley appears to argue that he had a disability because he had problems seeing with the shields, the inability to wear opaque side shields simply is not a "substantial limitation" on a major life activity. For example, in Cavallaro v. Corning. Inc., 93 F. Supp.2d 334 (S.D.N.Y. 2000), the District Court found that an inability (because they were too painful) to wear safety shoes as required by company policy was not a disability under the ADA. Id. at 342-43.
B. Qualified Individual/Reasonable Accommodation
Conley argues that he is a "qualified" individual because he was able to perform the essential functions of his job as long as he was not wearing the safety glass side shields. Belden argues that Conley was not a qualified individual because he could or would not wear the safety shields required by the company and by OSHA.
To determine whether a disabled individual is "qualified, " courts consider: (1) whether the individual can perform the essential functions of the job at issue; and (2) if not, whether any reasonable accommodation by the employer would enable the individual to perform these functions.Tyndall v. National Educ. Ctrs., 31 F.3d 209, 213 (4th Cir. 1994). A "qualified individual with a disability" is "an individual with a disability 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). The burden is on the plaintiff to demonstrate that she could perform the essential functions of his job with reasonable accommodation. Tyndall, 31 F.3d at 213.
Conley fails to show that he was a qualified individual because he either could not or refused to wear the side shields required by his job, Belden offered him accommodations which he refused, and he fails to show that there was a reasonable accommodation which would have allowed him to do his job. Numerous accommodations were researched and/or offered to Conley. Jennings stated that Belden provided the plaintiff with several different kinds of OSHA approved safety shields, side shields, goggles, and a face mask that would fit over his prescription glasses, but that Conley rejected each piece of safety equipment offered and demanded that he be excused from the Personal Protective Equipment Policy. Jennings Aff. Conley admitted that he was offered other eye protection options, he was sent to a physician to determine if he was disabled and to see if he could be helped with different eyewear, and Belden checked into the availability of prescription wrap around glasses. See Conley Dep. 78-79, 94-95, 116.
Conley admitted that he did not request any other accommodation other than a waiver of the side shield requirement. Conley I Dep. 115-116. "An employer is not obligated to provide an employee the accommodation he or she requests or prefers; the employer need only provide some reasonable accommodation." Baert v. Euclid Beverage. Ltd., 149 F.3d 626, 633 (7th Cir. 1998) (quoted in Crawford v. Union Carbide Corp., 202 F.3d 257, 1999 WL 1142346, *4 (4th Cir. Dec. 14, 1999), cert. denied, __ U.S., 120 S.Ct. 2669 (2000).
Conley argues that Belden should have accommodated him by allowing him to sign a waiver of liability and not wear the shields. Specifically, he argues that because his prior employer (Sumitomo) allowed him to sign a waiver that it must not have violated OSHA regulations. Belden argues that this accommodation was unreasonable because it violated OSHA standards.
Conley also appears to argue that Belden was overzealous in its enforcement of safety measures. Larsen, however, stated that there was a risk that fine braided strands of wire could fly off during the manufacturing process and go into a person's eye; the extrusion process involved highly pressurized mechanics; and there was a risk that a part might break, causing hot liquid to spray onto a worker and cause severe burns. Larsen Dep. 24. Jennings states that Conley spent the majority of his time working on the manufacturing floor and in direct contact with the machinery. Jennings Aff., ¶ 13.
OSHA regulations require that an employer ensure that affected employees use appropriate eye or face protection when exposed to eye or face hazards. Specifically:
The employer shall ensure that each affected employee uses eye protection that provides side protection when there is a hazard from flying objects. Detachable side protectors (e.g. clip-on or slide-on side shields) meeting the pertinent requirements of this section are acceptable.29 C.F.R. § 1910.133(a)(2). Further, the regulations provide that protective eye and face devices "shall comply with ANSI Z87.1-1989 . . . or shall be demonstrated by the employer to be equally effective." 29 C.F.R. § 1910.133(b). Here, Conley has not shown that a waiver of these regulations would be reasonable. See Albertson's, 527 U.S. at 577-578 (finding that an employer could use its compliance with applicable Department of Transportation safety regulations to justify its visual-acuity standards for its job, despite an experimental program by which the DOT standard could be waived in an individual case).
C. Discrimination Based Solely on Disability
Conley argues that Belden fired him solely based on his disability because he had a good employment record prior to March 2, 1999; that on January 26, 1999, Belden threatened to fire Conley by February 2 if he did not wear side shields; two weeks before he was fired, Larsen told Conley that the side shields he was wearing were unacceptable, even though they were used by a Belden corporate official; and on March 2, Larsen told Conley that he had to wear the side shields mandated by Cabrol or be fired. Belden argues that Conley was discharged for insubordination.
Conley argues, citing Reeves v. Sanderson Plumbing, 530 U.S. 133, ___ 120 S.Ct. 2097, 2109 (2000) ("[A] plaintiffs [establishment of a] prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated"). Even if Reeves is applicable here, Conley simply fails to show that Belden's proffered reason (insubordination) for its action was false.
Even if Conley were able to show that he had a disability under the ADA and that he was a qualified individual, he fails to show that he was fired solely because of his disability. Although Conley claims he was not insubordinate, Belden has provided evidence that Conley was terminated for a legitimate, nondiscriminatory reason. See,e.g., Keil v. Select Artificials, Inc., 169 F.3d 1131, 1134 (8th Cir.), cert. denied, 528 U.S. 818 (1999)(insubordination, consisting of the plaintiff insulting the co-owner of business, slamming desk drawer, and making sarcastic remark about co-owner in presence of four co-workers was a legitimate, nondiscriminatory reason for termination). Conley admits that on two occasions he told Buford that he had "a shitty management style"). Conley I Dep. 30, 33, 40-42. Belden's Human Resources Policy and Procedures Manual provides that discharge is the action to be taken for insubordination. Conley I Dep., Ex. 8 Further, Larsen previously counseled the plaintiff that he was "short tempered" and "needed to learn better control." Larsen Dep. 16, Ex. 1. Additionally, Conley admitted that on one occasion he became frustrated, threw a production manual in the trash and cursed, and that "very possibly" other employees observed him and heard what he said. Conley I Dep. 147-148. Although Conley alleges he was fired shortly after discussions concerning his impairment, Belden has provided evidence that he was fired for insubordination. Further, Conley fails to show that he was terminated solely because of his impairment. See, e.g., Stewart v. Happy Herman's Chesire Bridge, 117 F.3d 1278, 1287 (11th Cir. 1997) (finding "no inference of `suspect timing"' arises where numerous acts of insubordination occurred around the same time as a request for accommodations under the ADA).
The policy provides:
Generally, the following four step procedure and corresponding documentation is to be used for most infractions, however, the frequency and/or severity of the infraction may accelerate this process.
Step 1: Verbal warning Level 1 Employee Performance Discussion or Level 1 Employee Work Habits Discussion
Step 2: Written warning Level 2 Employee Follow Up Discussion
Step 3: Final written warning Level 3 Employee Disciplinary Suspension Discussion
Step 4: Discharge Level 3 Employee Disciplinary Discussion.
Conley, as a process engineer, was neither a manager or supervisor. Larsen Dep. 9-10.
Conley argues that his behavior was not insubordination because it occurred with someone who was not "his" manager. He has presented nothing to support this, however, other than his own personal belief. It is the employer's perception of job performance, and not the employee's perception, however, that is controlling. See Dejarnette v. Corning. Inc., 133 F.3d 293 (4th Cir. 1998); Smith v. Flax, 618 F.2d 1062 (4th Cir. 1980); Shore v. A. W. Hargrove Ins. Agency. Inc., 873 F. Supp. 992, 998 (ED. Va. 1995); Simmons v. Marsh, 690 F. Supp. 1489, 1493 (E.D.Va. 1988), aff'd, 852 F.2d 566 (4th Cir. 1988), cert. denied, 488 U.S. 996 (1988).
CONCLUSION
Based on review of the record, it is, therefore, recommended that the defendant's motion for summary judgment be granted.