Opinion
Civil Action 8:19-cv-1701-DCC-KFM
01-19-2021
Pamela Goodine, Plaintiff, v. Robert Bosch, LLC, Defendant.
REPORT OF MAGISTRATE JUDGE
Kevin F. McDonald, United States Magistrate Judge.
This matter is before the court on defendant Robert Bosch, LLC's (“Bosch”) motion for summary judgment (doc. 53). 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.
FACTS PRESENTED
Bosch operates a manufacturing plant in Anderson, South Carolina that utilizes a staffing company, Human Technologies, Inc. (“HTI”), for hiring employees (docs. 55 at 4; 55-2, Bosch Dep. 12:3-16). Initially, HTI hires employees onto the HTI payroll as production technicians in the Bosch plant (id.). However, after six months of satisfactory performance, HTI converts employees to Bosch's payroll (id.; doc. 55-4, Regina Dep. 19:1316, 32:7-33:6). Bosch delegates all of its recruiting, hiring decisions, and onboarding and orientation functions to HTI (docs. 55 at 4; 55-2, Bosch Dep. 12:3-16).
HTI hired the plaintiff to work as a planar operator at the Bosch plant in August 2017 (docs. 55-3, Goodine Dep. 13:19-14:1; 55-2, Bosch Dep. 22:10-11). On May 21, 2018, a Bosch manager approached the plaintiff on the production floor and congratulated her on becoming a Bosch employee (doc. 55-8, Goodine Decl. at ¶ 1). The manager instructed the plaintiff to report to the HTI office, where an HTI representative provided her with an application for employment with Bosch (id. at ¶¶ 2-3). The plaintiff contends that the HTI representative stressed that she needed to hurry to fill out the application because she needed to get to the drug testing facility before it closed (doc. 55-3, Goodine Dep. 141:10-18). It is undisputed that the plaintiff did not provide fully accurate information regarding dates and former employers in the employment history section of the application (docs. 53 at 1; 55 at 6).
At all times relevant to this action, the plaintiff was suffering from serious health conditions (docs. 53 at 7; 58-2, Goodine Dep. Exhibit 8 at 4-6). After a health incident at home, the plaintiff's health care provider, Nurse Leeann Butts, informed the plaintiff that she could not perform her job duties for one month (doc. 55-3, Goodine Dep. 63:20-68:5; 75:15-76:12). On October 31, 2018, the plaintiff requested leave pursuant to the Family and Medical Leave Act (“FMLA”) (doc. 53-2, Armstrong Decl. ¶ 15). In making these requests, the plaintiff worked with Pamela Armstrong, Bosch's senior human resources partner (id. at ¶¶ 14-15). Ms. Armstrong informed the plaintiff that she, too, previously had similar health issues (id. at ¶ 17). Ms. Armstrong completed the paperwork for the plaintiff and sent the paperwork to Nurse Butts via fax (id. at ¶ 20). The plaintiff was approved for leave under the FMLA from October 30, 2018, until November 30, 2018 (id. at ¶ 21). On December 3, 2018, the plaintiff contacted Ms. Armstrong again regarding her need for additional FMLA leave (id. at ¶ 22). Ms. Armstrong assisted the plaintiff in completing the FMLA paperwork and sent the paperwork to Nurse Butts via fax (id. at ¶ 23). The plaintiff was approved for FMLA leave retroactive to December 1, 2018, until January 2, 2019 (id. at ¶ 24).
The information pertaining to the plaintiff's health conditions is redacted pursuant to a sealed filing.
In or around the second week of December 2018, the plaintiff's supervisor, Christopher Swaney, contacted Ms. Armstrong regarding when the plaintiff would be released to return to work (doc. 53-2, Armstrong Decl. ¶ 27). During that conversation, Mr. Swaney informed Ms. Armstrong that one of the plaintiff's friends, Danarius Watts, told him the plaintiff was working at Hampton Inn while she was out on leave (id. at ¶ 28). In response, Ms. Armstrong conducted an investigation to determine if the plaintiff was working while on leave, which would be in violation of Bosch's policy (id. at ¶¶ 29-40; doc. 53-1, Reynolds Decl. ¶ 12). On December 27, 2018, Ms. Armstrong called the plaintiff and asked whether she was working at Hampton Inn, and the plaintiff stated that she had not worked there in over a year (doc. 53-2, Armstrong Decl. ¶¶ 31-32). Ms. Armstrong also asked the plaintiff if she would be able to return to work at the end of her FMLA leave (id. at ¶ 29). The plaintiff stated that she had an appointment with Nurse Butts on January 2, 2019, and could inform Ms. Armstrong when she could return to work following this appointment (id. at ¶ 30). Bosch contends that the plaintiff never requested additional leave after her leave expired on January 2, 2019, but that it provided the plaintiff with leave for an additional week without request, from January 3, 2019, until January 10, 2019 (doc. 55 at 3). The plaintiff, however, submits that she attempted to contact Ms. Armstrong numerous times about obtaining paperwork to extend her leave beyond January 2, 2019, but that her messages were unreturned (docs. 55-8, Goodine Decl. ¶¶ 5-6; 55-3, Goodine Dep. 120:1316, 124:16-24).
Watts denies telling anyone at Bosch that the plaintiff was working at Hampton Inn or anywhere else during her medical leave (docs. 55-24, Watts Decl. at 5; 55-7, Watts Dep. 5:3-6).
In furtherance of her investigation, Ms. Armstrong reviewed the plaintiff's employment application (doc. 53-2, Armstrong Decl. ¶ 33). Moreover, on January 3, 2019, Ms. Armstrong called the plaintiff again to request that Hampton Inn fax to Bosch a verification of the plaintiff's dates of employment (id. at ¶¶ 35-38). During the phone call, Ms. Armstrong also inquired about the plaintiff's return to work, and the plaintiff responded that she “didn't know” whether and when she could return to work (id. at ¶ 37). On January 4, 2019, Hampton Inn faxed Bosch a verification of the plaintiff's dates of employment, indicating that the plaintiff worked there from May 9, 2016, until December 9, 2017, ending about five months prior to the plaintiff submitting her employment application with Bosch (id. at ¶ 40). On the application that the plaintiff submitted to Bosch on May 21, 2018, she stated that her dates of employment at Hampton Inn were May 9, 2017, through “current” (doc. 53-1, Reynolds Decl. ¶ 23). The plaintiff also did not list HTI as a former employer on her application (id.).
Due to her belief that the plaintiff falsified her job application, Ms. Armstrong presented the issue to Wayne Reynolds, a human resources manager at Bosch (doc. 53-2, Armstrong Decl. ¶ 49). Mr. Reynolds called the plaintiff on January 8, 2019, regarding the alleged falsifications (doc. 53-1, Reynolds Decl. ¶ 22). Reynolds contends that the plaintiff gave no explanation for the misrepresentations and omissions (id. at ¶ 25). The plaintiff, however, alleges that she stated that any wrong date was an accident and was not done maliciously (doc. 55-3, Goodine Dep. 121:2-4). The plaintiff also submits that she attempted to discuss Ms. Armstrong's refusal to communicate about FMLA documentation with Mr. Reynolds, but Mr. Reynolds would not discuss the issue (id. at 120:13-17). Mr. Reynolds and Ms. Armstrong subsequently terminated the plaintiff's employment, effective as of January 11, 2019 (docs. 53-1, Reynolds Decl. ¶ 28; 53-2, Armstrong Decl. ¶ 56). Bosch contends that it has a policy of terminating all employees who falsify job applications (docs. 53-1, Reynolds Decl. ¶¶ 14-19; 53-2, Armstrong Decl. ¶¶ 54-55). The plaintiff, however, submits that Bosch's policies do not call for termination for innocent errors (doc. 55 at 15-17). The termination letter that Bosch sent to the plaintiff provided three reasons for termination: (1) there was a report of the plaintiff working elsewhere while on leave; (2) the plaintiff misstated dates that she worked at Hampton Inn; and (3) the plaintiff failed to disclose that she worked for HTI (doc. 55-28 at 1).
The plaintiff states in her declaration that most of her employment has been short term in nature and through temporary firms and that remembering the order of her previous jobs and in what years they fell is very difficult for her (doc. 55-8, Goodine Decl. ¶ 4).
The plaintiff notes that these reasons differ from an internal email in which Mr. Reynolds stated that Bosch needed to fire the plaintiff because (1) she did not accurately list the Hampton Inn dates on her application; (2) the plaintiff did not disclose employers between 2010 and 2016; and (3) the plaintiff failed to disclose HTI as an employer (docs. 55 at 14; 55-27).
The plaintiff filed a second amended complaint on September 14, 2020, alleging claims of interference in violation of the FMLA, retaliation in violation of the FMLA, and discrimination in violation of the Americans with Disabilities Act (“ADA”) (doc. 52). Bosch filed a motion for summary judgment on October 14, 2020 (doc. 53), and on October 19, 2020, the plaintiff filed a response in opposition (doc. 55). On October 29, 2020, the undersigned granted Bosch's unopposed motion to seal its memorandum in support of summary judgment and certain exhibits as they contain the plaintiff's personal medical information (doc. 59).
APPLICABLE LAW AND ANALYSIS
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.
FMLA Interference
In her first cause of action, the plaintiff alleges that Bosch interfered with her rights under the FMLA by terminating her employment because she took leave and/or using her taking of leave “as a negative factor in the making the decision to terminate employment” (doc. 52 at ¶ 19; doc. 55 at 22-25). The FMLA grants eligible employees up to twelve workweeks of protected leave for “a serious health condition that makes the employee unable to perform the functions” of her job. 29 U.S.C. § 2612(a)(1)(D). “When returning from FMLA leave, an employee is also entitled to be restored to [her] previous position or an equivalent position, so long as [she] would have retained that position or an equivalent one absent the taking of leave.” Adams v. Anne Arundel Cty. Pub. Sch., 789 F.3d 422, 426 (4th Cir. 2015) (citing Yashenko v. Harrah's NC Casino Co., 446 F.3d 541, 546-47 (4th Cir.2006)). It is unlawful for employers to “interfere with, restrain, or deny the exercise of or the attempt to exercise” FMLA rights. 29 U.S.C. § 2615(a)(1).
As an initial matter, the plaintiff argues that the court should apply a “negative factor causation standard” set forth in 29 C.F.R. § 825.220(c), while Bosch analyzes this claim under a three-part test set forth in Adams, 789 F.3d at 426 (docs. 53 at 26; 55 at 22). In explaining the FMLA's prohibition on interference with FMLA rights, 29 C.F.R. § 825.220(c) provides that “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions, or disciplinary actions.” Thus, the plaintiff contends that a “negative factor causation standard” controls (doc. 55 at 22). However, the plaintiff fails to identify any case law applying a “negative factor causation standard.” Moreover, 29 C.F.R. § 825.220(c) purports to merely explain 29 U.S.C. § 2615(a)(1) and provide an example of interference. Therefore, the court declines to adopt a “negative factor causation standard.”
The only case that the plaintiff cites regarding this standard, Fry v. Rand Constr. Corp., 964 F.3d 239 (4th Cir. 2020), is not instructive, as it deals with the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in the context of an FMLA retaliation claim (doc. 55 at 22).
The plaintiff next argues that even if the court does not utilize the “negative factor causation standard, ” her claim still survives Bosch's motion for summary judgment under the framework set forth in McDonnell Douglas (doc. 55 at 23). However, the McDonnell Douglas framework also does not apply to this analysis. The Fourth Circuit has noted that there are two types of FMLA provisions: prescriptive provisions, which include interference claims, and proscriptive provisions, which include retaliation claims. See Yashenko, 446 F.3d at 546. Unlike prescriptive interference claims, an employer's intent is relevant to proscriptive retaliation claims. Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016) (“Unlike prescriptive entitlement or interference claims, employer intent [in proscriptive retaliation claims] is relevant.”); Waag v. Sotera Def. Sols., Inc., 857 F.3d 179, 191 (4th Cir. 2017) (same). Thus, to determine intent when there is no direct evidence of retaliation, the Fourth Circuit utilizes the McDonnell Douglas framework. See Sharif, 841 F.3d at 203 (“Intent can be established either by direct evidence of retaliation or through the familiar burden shifting framework articulated in McDonnell Douglas[.]”); Waag, 857 F.3d at 191 (same). In contrast, for FMLA interference claims, because employer intent is not relevant, courts in this circuit consistently apply the three-part test set forth in Adams . See, e.g., Adams, 789 F.3d 422, 427 (4th Cir. 2015); Sabouri-Yazdi v. Red Coats, Inc., 751 Fed.Appx. 389, 391 (4th Cir. 2018); Bradford v. Molina Healthcare of S.C., LLC, C. A. No. 2:18-cv-649-RMG, 2020 WL 373194, at *4 (D.S.C. Jan. 23, 2020). Consequently, the undersigned will apply Adams to the plaintiff's claim herein.
Recently, the Fourth Circuit noted, in dicta, that the McDonnell Douglas framework could apply to either retaliation or interference claims under the FMLA. Fry, 964 F.3d at 244 (noting, after discussing prescriptive interference and proscriptive retaliation claims, that “[i]n both contexts, a plaintiff can either (1) produce direct and indirect evidence of retaliatory animus or (2) demonstrate intent by circumstantial evidence, which we evaluate under the framework established for Title VII cases in McDonnell Douglas.”). However, the case on which the Fourth Circuit relies in making this assertion is an FMLA retaliation case. Moreover, the Fourth Circuit, in Fry, goes on to solely apply the McDonnell Douglas framework to an FMLA retaliation claim. Thus, based on the binding precedent that consistently applies Adams, the court declines to apply the McDonnell Douglas framework to the plaintiff's interference claim.
It should be noted that the plaintiff submitted arguments regarding the three-part test set forth in Adams in its analysis of step one of the McDonnell Douglas framework, to establish a prima facie case (doc. 55 at 23-25).
Pursuant to Adams, to successfully “make out an ‘interference claim' under the FMLA, an employee must 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.” 789 F.3d at 427. Bosch argues that the plaintiff's claim fails because she did not request any FMLA leave beyond January 2, 2019, and thus cannot show that she was entitled to an FMLA benefit (doc. 53 at 25-26). However, the plaintiff testified that she attempted to contact Ms. Armstrong numerous times regarding obtaining the necessary paperwork to extend her leave beyond January 2, 2019, but that her messages were unreturned (docs. 55-3, Goodine Dep. at 120:2-16, 123:4-7, 124:16-24, 131:1-20; 55-8, Goodine Decl., at ¶ 5). Therefore, the court finds that there is a genuine issue of material fact regarding whether the plaintiff requested leave beyond January 2, 2019.
Bosch further argues that the plaintiff's claim fails because she made affirmative misrepresentations to Ms. Armstrong and intentionally withheld the fact that Nurse Butts told her on January 2, 2019, that she would not be released to return to work until February 4, 2019, after the expiration of her 12 weeks of leave (doc. 53 at 26-27). As set out above, in the phone call on January 3, 2019, the plaintiff told Ms. Armstrong that she “didn't know” whether and when she could return to work. However, the plaintiff has presented evidence that calls into question whether Nurse Butts actually informed her of the February 4, 2019 return to work date. The plaintiff testified that she only recalls Nurse Butts telling her around the first of the year in 2019 that her leave needed to be extended (doc. 55-3, Goodine Dep. at 82-83). Moreover, while Nurse Butts' medical records reflect that the plaintiff's leave would need to be extended until February 4, 2019, the plaintiff points out that Nurse Butts does not contradict the plaintiff's testimony that she only recalls being told that her leave would need to be extended (doc. 55 at 4). Further, Nurse Butts testified that the plaintiff was actually released to return to work on January 22, 2019 (doc. 53-5, Nurse Butts Dep. at 79:9-24).
Bosch relies on Peeples in arguing that the plaintiff's alleged affirmative misrepresentations bar her from succeeding on an FMLA interference claim (doc. 53 at 27). See Peeples v. Coastal Off. Prods., Inc., 64 Fed.Appx. 860, 864 (4th Cir. 2003) (“[W]hen notice of a possible serious medical condition is deliberately withheld and false information is given, it cannot be said that an employee has been terminated in violation of the FMLA.”) (quoting Gay v. Gilman Paper Co., 125 F.3d 1432, 1436 (11th Cir. 1997)). Peeples, however, is distinguishable from the instant matter. In Peeples, the Fourth Circuit found that the plaintiff did not provide his employer with the information necessary to trigger the employer's duties and obligations under the FMLA when the plaintiff took an extended leave of absence from work and, despite the employer's requests for information, provided “ no explanation for his absence or prognosis for his return” and misled his employer about his true medical condition. Id. at 863-64 (emphasis added). In the instant matter, the plaintiff provided Bosch with explanations for her absence, and Bosch merely alleges that the plaintiff did not inform it about the potential return date of February 4, 2019. Given the evidence before the court, the undersigned cannot conclude that there is no genuine issue of material fact regarding the plaintiff allegedly misleading Bosch.
Bosch also argues that “there is absolutely no evidence that Bosch interfered with the provision of [the plaintiff's] FMLA benefit, ” because Ms. Armstrong helped her fax the FMLA paperwork to Nurse Butts and provided her with an additional week of leave from January 3, 2019, to January 10, 2019 (doc. 53 at 27). However, the plaintiff alleges that Bosch's interference occurred through a failure to provide notice regarding additional leave, denial of additional leave within the 12-week period, and termination (doc. 55 at 20-25). The fact that Armstrong sent faxes on behalf of the plaintiff and provided her with an extra week of leave, before her FMLA leave expired, does not defeat the plaintiff's allegations. Therefore, Bosch's argument is without merit.
Moreover, Bosch asserts that it is entitled to summary judgment because the plaintiff did not suffer prejudice, as she would not have been able to return to work after her 12 weeks of FMLA leave expired (doc. 26-28). To support this argument, Bosch relies on the following text message exchange between the plaintiff and Mr. Watts on April 21, 2019, subsequent to the plaintiff's termination:
Mr. Watts: Ohh, you still been getting infusions?
The plaintiff: Yes! Ughhhh I hate them.
Mr. Watts: Are they working for you?
The plaintiff: I say yes and no. Cuz they work for a few days and then they don't
Mr. Watts: So you haven't been working?
The plaintiff: Lord noooo! I start school next month. Then when the dr release me then I see.(Doc. 53 at 13). However, the undersigned finds that the plaintiff has shown a genuine issue of material fact regarding her ability to return to work after the expiration of the 12-week leave period. The parties agree that the plaintiff's 12-week leave would have ended on January 22, 2019 (docs. 53 at 28; 55 at 9). Moreover, Nurse Butts testified that she released the plaintiff to return to work on January 22, 2019 (doc. 53-5, Nurse Butts Dep. at 79:9-24). Specifically regarding the text exchange, the plaintiff explained that she was referring to a different upcoming surgery, not her condition since January (docs. 55 at 2425; 55-3, Goodine Dep., at 132:21 - 133:5). Further, the plaintiff testified that the text did not mean that she had not been released since January (doc. 55-3, Goodine Dep., at 135:5-13). Therefore, as genuine issues of material fact remain, the undersigned recommends that the district court deny Bosch's motion for summary judgment on the plaintiff's FMLA interference claim.
FMLA Retaliation
In her second cause of action, the plaintiff alleges that Bosch discharged and discriminated against her for exercising her rights under the FMLA, in violation of 29 U.S.C. § 2615(a)(2) (doc. 52 at ¶ 22). The plaintiff again argues that the court should apply the “negative factor causation standard” (doc. 55 at 25). In the alternative, the plaintiff analyzes her claim pursuant to the McDonnell Douglas framework (id.). As set out in detail above, the court declines to adopt a “negative factor causation standard” and will apply the McDonnell Douglas framework to the plaintiff's retaliation claim herein.
Because FMLA retaliation claims under 29 U.S.C. § 2615(a)(2) are analogous to Title VII retaliation claims, they can be analyzed under the burden-shifting framework of McDonnell Douglas. 411 U.S. at 800-06; Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502 (4th Cir. 2001). The plaintiff bears the burden of making a prima facie showing “that [s]he engaged in protected activity, that the employer took adverse action against [her], and that the adverse action was causally connected to [her] protected activity.” Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir.1998). If the plaintiff makes this prima facie showing, then the defendant bears the burden of offering a nondiscriminatory explanation for its decision to terminate the plaintiff's employment, and, thereafter, the burden would return to the plaintiff to show that the defendant's “proffered explanation is pretext for FMLA retaliation.” Nichols, 251 F.3d at 502.
Bosch again argues that the plaintiff is unable to establish a prima facie case of retaliation due to the fact that she allegedly withheld information from Ms. Armstrong regarding her return to work date (doc. 53 at 29-30). However, as set out above, the undersigned finds that genuine issues of material fact remain on this issue.
Bosch also argues that the plaintiff is unable to establish a prima facie case of retaliation due to the absence of a causal connection between the plaintiff's exercise of her rights under the FMLA and her termination, because the plaintiff was terminated for providing false information on her employment application (doc. 53 at 29-30). The plaintiff, however, contends that the fact that Bosch fired her shortly after her providing notice that she would need more FMLA leave is sufficient to clear the “mild causation standard” at the prima facie stage (doc. 55 at 26-27). The undersigned agrees.
“An employee may establish prima facie causation simply by showing that (1) the employer either understood or should have understood the employee to be engaged in protected activity and (2) the employer took adverse action against the employee soon after becoming aware of such activity.” Strothers v. City of Laurel, Md., 895 F.3d 317, 33536 (4th Cir. 2018). The plaintiff has argued that she requested additional FMLA leave from Ms. Armstrong and that Ms. Armstrong terminated the plaintiff's employment within two weeks, purportedly viewing the phone conversation between them on December 27, 2018, as involving a request for leave. While it is unclear whether the plaintiff requested more leave during that conversation, a court could find that the plaintiff indicating that she “didn't know” whether or when she could return to work was a request for additional leave. However, even if this statement was not a request for additional leave, the plaintiff undisputedly requested additional leave on December 3, 2018, a little over a month before her termination. Under these circumstances, the undersigned finds that plaintiff has presented sufficient evidence of causation to survive summary judgment. See Waag, 857 F.3d at 192 (“[F]or purposes of establishing a prima facie case, close temporal proximity between activity protected by the statute and an adverse employment action may suffice to demonstrate causation.”); e.g., Foster v. Univ. of Maryland-Eastern Shore, 787 F.3d 243, 253 (4th Cir. 2015) (finding that the evidence was sufficient to create a jury question on the causation prong of the prima facie case when a plaintiff complained about perceived retaliation and was terminated about a month later); 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). Accordingly, the undersigned recommends that the district court find that the plaintiff can establish a prima facie case of FMLA retaliation.
Bosch further contends that it has a legitimate, non-retaliatory reason for terminating the plaintiff's employment: she made misrepresentations on her employment application (doc. 53 at 30). Bosch submits that it has a uniform, consistently-enforced policy regarding misrepresentations made by associates on employment applications and that, at its Anderson facility, every associate who has been found to have misrepresented information on an employment application has been terminated (id. at 7). Further, on the employment application, the plaintiff signed a page entitled Applicant's Certification and Agreement that stated as follows:
1. The information given by me in this application is true in all respects. I understand that if the information is found to be false in any way, it is grounds for refusal or, if hired, dismissal.(Doc. 53-4, Goodine Dep. Exhibit 3 at 4). Bosch has also presented evidence of previous terminations for falsifying employment applications (doc. 55-2, Bosch Dep. 67:10-70:24). Thus, Bosch has met its burden of production in offering a legitimate, non-retaliatory reason for the plaintiff's termination from employment.
The plaintiff, however, has shown a genuine issue of material fact regarding whether the proffered explanation is pretext for FMLA retaliation. Bosch contends that the plaintiff misrepresented the dates that she worked for Hampton Inn and omitted HTI as a former employer. However, the plaintiff testified that she was unaware that she was going to fill out an application that day, was hurried through her employment application, and merely mis-stated the dates of her Hampton Inn employment by around five months. Moreover, Bosch was aware that the plaintiff was employed by HTI, as HTI is the staffing company that Bosch utilizes for hiring and the plaintiff worked for HTI on Bosch's own production floor. Termination for these minor inaccuracies, coupled with the fact that Bosch terminated the plaintiff shortly after her request for additional leave, undermines Bosch's proffered reason for the plaintiff's termination from employment. In addition, while Bosch points to evidence that it previously terminated employees for falsifying employment applications, these terminations involve former employees intentionally misleading the company through hiding previous terminations, lying about degrees held, and falsifying time or production records, while, viewing the evidence in a light most favorable to the plaintiff, she was terminated from employment for mistakenly forgetting the exact dates of her previous job. Based upon the foregoing, the undersigned finds that a reasonable jury could conclude that the plaintiff was a victim of FMLA retaliation. Thus, Bosch's motion for summary judgment should be denied on this cause of action.
ADA Discrimination
In her third cause of action, the plaintiff alleges discrimination in violation of the ADA, claiming that Bosch discriminated against her and terminated her employment because of her disabilities; Bosch limited, segregated, and classified her in a way that adversely affected her opportunities because of one or more disabilities; and Bosch failed to make any reasonable accommodations to her known physical limitations or to even engage in the interactive process (doc. 52 at ¶ 2).
Both parties analyze the plaintiff's claim of ADA disability discrimination under the McDonnell Douglas burden-shifting framework (docs. 53 at 16-25; 55 at 32-36). The ADA prohibits employment discrimination “against a qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). To establish a prima facie case of disability discrimination under the ADA, a plaintiff must show that “(1) [she] was a qualified individual with a disability; (2) [she] was discharged; (3) [she] was fulfilling [her] employer's legitimate expectations at the time of discharge; and (4) the circumstances of [her] discharge raise a reasonable inference of unlawful discrimination.” Reynolds v. Am. Nat' Red Cross, 701 F.3d 143, 150 (4th Cir. 2012) (citation and internal quotation marks omitted).
The plaintiff also argues that she can defeat summary judgment by establishing circumstantial evidence that unlawful discrimination was a “motivating factor” in the termination decision, even if a legitimate non-discriminatory and non-pretextual reason was also a factor (doc. 55 at 31-32) (citing Halpern v. Wake Forest Univ. Health Sciences, 669 F.3d 454, 462 (4th Cir. 2012)). As the undersigned finds that the claim should survive summary judgment under the McDonnell Douglas burden-shifting framework, this argument will not be further addressed.
Bosch argues that the plaintiff was not a qualified individual with a disability because she could not perform the essential functions of her job (doc. 53 at 17-19). A qualified individual is “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). To resolve whether a person is a qualified individual, a court must consider whether that person is able to perform the essential functions of the job in question, and if not, whether the person could do the job with reasonable accommodation. Tyndall v. Nat'l Educ. Ctrs., Inc. of Cal., 31 F.3d 209, 213 (4th Cir.1994) (citation omitted).
Bosch submits that the plaintiff's ability to perform the essential functions of her job should be determined on the date of her discharge, January 11, 2019 (doc. 53 at 17-18). The parties agree, however, that the plaintiff's accommodation of a 12-week leave period under the FMLA expired on January 22, 2019. Moreover, as set out above, while Bosch contends that the plaintiff never requested further leave accommodations beyond January 2, 2019, the plaintiff testified that she repeatedly attempted to contact Ms. Armstrong regarding extending her leave but that her messages were left unreturned. Thus, viewing the facts in the light most favorable to the plaintiff, the court will determine the plaintiff's ability to perform the essential functions of her job based on an accommodation of 12 weeks of FMLA leave. Bosch relies on Nurse Butts' medical records listing February 4, 2019, as a return to work date and the plaintiff's text exchange with Mr. Watts to argue that the plaintiff was unable to return to work (doc. 53 at 17-19). However, as discussed above, because Nurse Butts testified that she actually released the plaintiff to return to work on January 22, 2019, and the plaintiff testified that her text messages to Mr. Watts were in regard to a different upcoming surgery, the undersigned finds that the plaintiff has shown a genuine issue of material fact regarding her ability to perform the essential functions of her job with a reasonable accommodation.
Bosch further argues that the plaintiff is unable to show circumstances giving rise to an inference of unlawful discrimination (doc. 53 at 19-22). To support its argument, Bosch contends that Ms. Armstrong acted in good faith by assisting the plaintiff in obtaining leave (id. at 20). However, while it is true that Ms. Armstrong assisted the plaintiff in obtaining leave on two occasions, the plaintiff has also testified that Ms. Armstrong subsequently left the plaintiff's messages regarding an extension of her leave unreturned, thereby blocking the plaintiff's ability to obtain the remainder of her 12 weeks of leave.
Bosch also contends that it is boilerplate law that discrimination is unlikely between members of the same protected class and that Ms. Armstrong and the plaintiff are members of the same protected class through their similar health conditions (id. at 20-21). However, while sharing a similar health issue may make it less likely that Ms. Armstrong discriminated against the plaintiff, that fact alone is insufficient to warrant judgment as a matter of law under Rule 56 of the Federal Rules of Civil Procedure. See Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78-79 (1998) (“Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of that group.”). Instead, viewing the evidence in a light most favorable to the plaintiff, Bosch's termination of the plaintiff for trivial inaccuracies in her employment application, coupled with the fact that she was terminated shortly after asking for additional leave, are circumstances giving rise to a reasonable inference of unlawful discrimination.
Bosch also contends that it has a legitimate, nondiscriminatory reason for the plaintiff's termination due to the plaintiff falsifying her job application (doc. 53 at 22-25). However, as discussed in detail above, the plaintiff has presented evidence that this reason is pretext for her termination. Consequently, the undersigned recommends that the district court deny Bosch's motion for summary judgment on the plaintiff's ADA disability discrimination claim.
The plaintiff argues in response to the motion for summary judgment that she can also establish a failure to accommodate claim under the ADA (doc. 55 at 34-35). It is unclear if such a claim is alleged in the second amended complaint (see doc. 52 at 5-6). The third cause of action is entitled “Discrimination - ADA, ” but within the cause of action, the plaintiff alleges that Bosch “failed to make any reasonable accommodations to [her] known physical limitations or even engage in the interactive process” (id. at 5). She further alleges that she requested a short extension of her leave in January 2019, which was “necessary as an accommodation for [her] disabilities” (id. ¶ 11). The defendant did not address such a claim in the motion for summary judgment, and, accordingly, to the extent that the plaintiff has alleged a separate claim for failure to accommodate in violation of the ADA, summary judgment should also be denied on this claim.
CONCLUSION AND RECOMMENDATION
Wherefore, based upon the foregoing, Bosch's motion for summary judgment (doc. 53) should be denied.
IT IS SO RECOMMENDED.
The attention of the parties is directed to the important notice on the following page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).