Opinion
C/A 3:19-832-MGL-KDW
04-19-2021
Charlene Pelzer Maffett, Plaintiff, v. City of Columbia, Defendant.
REPORT AND RECOMMENDATION
Kaymani D. West, United States Magistrate Judge.
Plaintiff Charlene Pelzer Maffett (“Plaintiff” or “Maffett”), filed this action against her former employer, Defendant City of Columbia (“Defendant” or “City”), bringing claims of violation of the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”), as amended; retaliation under both the FMLA and the ADA; and a state-law-based claims for gross negligence. Compl., ECF No. 1-1. At the close of discovery, Defendant moved for summary judgment. ECF No. 44. Plaintiff responded to this motion, ECF No. 56; and Defendant filed a reply, ECF No. 60. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a report and recommendation (“Report”) regarding Defendant's pending dispositive motion. Having reviewed the parties' submissions and the applicable law, the undersigned recommends Defendant's Motion, ECF No. 44, be granted.
Plaintiff's Complaint labels the disability-related causes of action as having been brought under the ADA/Rehabilitation Act of 1973. As the City has noted, the analysis in this case is the same under either statutory scheme. See Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995). Because the parties typically cite to the ADA, the court will, as well.
I. Introduction
In considering Defendant's Motion, the court considers all evidence in the light most favorable to Plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Nonetheless, as noted by Defendant on Reply, Plaintiff has not complied with Local Civil Rule 7.05 to provide a “concise statement of the material facts in dispute with reference to the location in the record” in her responsive brief. Local Civ. Rule 7.05(A)(4) (D.S.C.). Rather than respond to Defendant's “Statement of Undisputed Material Facts, ” Def. Mem. 3-13 (setting out facts in paragraph form), by indicating the material facts she considers to be in dispute, Plaintiff provides her own “Statement of Material Facts Supported by the Record, ” (Pl. Mem. 2-12). Plaintiff's failure to properly contest Defendant's provided facts and follow the Local Rules could result in having the court consider Defendant's factual statement to be undisputed for purposes of this Motion. See Briggs v. Low Country Home Med. Equip. Co., No. 4:14-CV-705-PMD-KDW, 2015 WL 13733954, at *1 (D.S.C. Aug. 31, 2015). Counsel are reminded that compliance with Local Civil Rule 7.05(A)(4) and other Local Rules concerning motions and memoranda is mandatory. See Local Civ. Rule 7.05(A) (setting out items a memorandum concerning a motion “shall contain”). The following statement of facts uses Defendant's paragraph-numbered statement of facts as a framework and includes facts proffered by Plaintiff to the extent either party's facts have record support. To the extent supported by the record, potentially differing accounts of events are noted. When necessary, additional facts are set out in relevant portions of this Report.
II. Factual background
1. The City is a municipality organized under the council/manager form of government. The Employee Handbook provides that city employees are presumed to be at-will employees and that “no oral or written promises or representations by a department director, division head or supervisor will change the at-will status of an employee.” Employee Handbook 6, ECF No. 44-4 at 2. Only the City Manager has authority to enter into contracts of employment, which must be in writing and signed by the city manager. Id. See S.C. Code Ann. §§ 5-13-90; 8-17-130; 8-17-160; Columbia City Code §§ 2-1, 2-32, ECF No. 44-3.
2. The City employed Plaintiff as a Buyer in the City's Office of Purchasing and Contracting (“Purchasing Office”) from May 4, 2015 to October 13, 2017. Final Payout Form, ECF No. 44-6. The Buyer Position Description lists various essential job functions. See Position Description, ECF No. 44-5.
3. Sandra Wright, the Director of the Purchasing Office, testified that approximately 90 percent of Plaintiff's job as a Buyer was to process purchase orders, which required the use of specialized printing equipment located only within the Purchasing Office and interaction with vendors and other City personnel who come to the Purchasing Office. Wright Dep. 60-62, excerpts of Wright Dep. found at ECF No. 44-7, full transcript found at ECF No. 56-3. Wright explained that, at the time at issue, the Purchasing Office was not set up for remote work and that, if a Buyer sought to work remotely, it would require shifting purchase order processing duties to other Buyers within the Purchasing Office. Id.
a. Plaintiff takes issue with Wright's statement that she could not have performed her job duties remotely, citing to Wright's July 2, 2020 deposition testimony that, since the pandemic had started, the “entire Purchasing Office” has been working remotely since March 2020” and “somehow has remained fully operational[.]” Pl. Mem. 2 n.1. The court notes, however, that Wright testified that the Purchasing Office had been “continuing operations as normal as possible in light of the pandemic, ” and that some buyers were working remotely but some buyers and staff members had to be in the office and that the office still had to “remain open.” Wright Dep. 7-8.
b. Plaintiff also looks to the testimony of City Systems Administrator and Federal Rule of Civil Procedure 30(b)(6) designee Cory Williams regarding City employees' ability to work remotely. Williams Dep., ECF No. 56-2.
The issue of whether Plaintiff's duties as Buyer could be performed remotely during the time at issue is discussed within in connection with Plaintiff's substantive claims.
4. Plaintiff's direct supervisor while she was employed from May 2015 to September 2017 was Lawanda Robinson-Lee, Deputy Director of the Purchasing Department. Pl. Dep. 25; Pl. Aff. ¶ 4, ECF No. 56-4.
The court notes Defendant's generalized objection to Plaintiff's use of her own “self-serving affidavit [and] the conjecture and hearsay contained therein.” Reply 2 n.2. That Robinson-Lee was Plaintiff's supervisor is not in dispute, however. Further, while it is true that Plaintiff cannot create issues of genuine fact by providing “uncorroborated and self-serving testimony, ” see Id., there is no per-se prohibition of Plaintiff's submitting otherwise-admissible evidence by her own affidavit.
5. Plaintiff testified she was familiar with her job duties as a Buyer and the essential functions of her position. Pl. Dep. 104, ECF No. 56-3 (full transcript).
6. In May 2017, the entire Purchasing Office relocated from Washington Square to the second floor of 1800 Main Street, several blocks away. Compl. ¶ 15; Wright Dep. 61.
7. Wright testified that the City had cleaned the area of 1800 Main where the Purchasing Office was to be located prior to the actual move. Wright Dep. 68. Wright also testified that she knew the space was tested; however, she deferred to others as to the timing of that testing. Id.
8. On June 28, 2017, after she had begun working at 1800 Main Street, Plaintiff became ill inside her office. Pl. Aff. ¶ 7. Plaintiff indicated she was unable to stop coughing and had trouble breathing. Id. She went home but, after three hours, she awoke coughing again, and her husband transported her to the emergency room, where she was diagnosed with respiratory distress, provided breathing treatments and medications, and advised to stay away from the office for the remainder of the week. Id.; Pl. June 28, 2017 Text Message to Robinson-Lee, ECF No. 46-5 at 1.
9. On June 29, 2017, Robinson-Lee notified Wright, Benjamin, and other City officials about Plaintiff's medical condition and her treatment plan. June 29, 2017 Robinson Lee email, ECF No. 46-4. Plaintiff's husband provided Robinson-Lee with a physician's note indicating Plaintiff had been seen at Palmetto Health and should be excused from work from June 28, 2017 through June 30, 2017, and that she should “avoid area of construction at work.” ECF No. 46-4 at 3.
10. Plaintiff returned to work on July 3, 2017, but began experiencing a severe cough and trouble breathing. She was escorted to the City's health clinic, and a City physician contacted EMS to transport her to the emergency room. Pl. Aff. ¶ 10; Compl. ¶ 24; Medical Excuse for July 3, 2017 to July 5, 2017, ECF No. 46-6; Text Messages between S. Wright and Plaintiff 1-2, ECF No. 46-7. Wright advised Plaintiff the matter was being “turned [ ] over to HR and the Safety Officer for further investigation.” Text Messages 2, ECF No. 46-7.
11. Plaintiff remained out of work pursuant to her doctor's orders while she continued to experience various symptoms, such as lightheadedness, anxiety, sleep issues, breathing issues, headaches, and attended various medical appointments. Pl. Dep. 30-33; Text Messages between Plaintiff and Wright, ECF No. 46-7; Ex. 13, Text Messages between Plaintiff and Robinson, ECF No. 46-8; Pl. Medical Excuses for July 7, 2017 to August 21, 2017, ECF No. 46-9 (from Carolina Allergy & Asthma Consultants and Lexington Family Practice Northeast).
12. On July 3, 2017, the City began an investigation into the Purchasing Office's workspace on the second floor of 1800 Main Street so that it could assess the situation. Deposition of Kelvin Keisler, City Support Services Director, 10, 17, 20, ECF No. 46-11.
13. Personnel from Support Services tested CO2 (carbon dioxide) levels within the Purchasing Office to ensure the levels were within the appropriate range for occupied indoor spaces with good air exchange. July 3, 2017 Keisler email, ECF No. 46-12 (indicating the CO2 testing showed the second floor of 1800 Main Street was within the normal concentrations “typical of occupied indoor spaces with good air exchange”), ECF No. 46-12; see Keisler Dep. 17-20.
14. Also on July 3, 2017, the City received a report from Alpha-Omega Environmental, Inc. (“Alpha-Omega”) regarding asbestos air monitoring to ensure that asbestos fiber concentrations at 1800 Main Street remained below applicable DHEC (S.C. Department of Health and Environmental Control) clean air criteria. Letter from Benjamin Craig (Alpha-Omega) to Stacy Dixon (City), ECF No. 46-13. This testing, which used samples taken on June 27, 2017, indicated that “fiber concentrations are below the DHEC clean air criteria of 0.01 fibers per cubic centimeter (f/cc).” Id.
15. At the City's request, Alpha-Omega collected additional air samples at 1800 Main “to evaluate suspected airborne mold spore concentrations in selected areas on the second floor” of the building. Alpha-Omega's July 7, 2017 Indoor Air Quality Report 1, ECF No. 46-2 at 4. Alpha-Omega indicated it understood that “multiple office personnel have been experiencing headaches or other illnesses since working in this building.” Id.
16. On July 5, 2017, Plaintiff executed a Medical Authorization and Consent to Release Information” to Companion TPA. This concerned a workers' compensation claim. Companion TPA Medical Auth., ECF No. 46-14.
17. On July 6, 2017, Plaintiff emailed her supervisor advising that she was due to return to the office the following Monday, July 10, 2017, and requesting to “report to a different location on Monday morning at 7:30am for a safer work environment.” July 6, 2017 email from Plaintiff to Robinson, ECF No. 46-15. Robinson advised that she was out of the office and had forwarded the request to Sandra Wright. Id.
18. Wright sent Plaintiff a text on July 7, 2017 acknowledging her request to move to a different location for work the following Monday. July 7, 2017 Text from Wright to Plaintiff, ECF No. 46-7 at 3. Wright indicated, “we would prefer if you check with your doctor to see if you can get approved for another day out. By Monday afternoon we will have the results back. Let me know.” Id. Plaintiff responded that she would be emailing Wright the doctor excuse. Id. at 4.
19. Alpha-Omega provided an Indoor Air Quality Report regarding 1800 Main Street on July 7, 2017 (“July 7, 2017 Report”). ECF No. 46-2. The scope of work consisted of taking air samples of the exterior of the building and the interior inside Plaintiff's office, in the hallway outside of the break room in an interior cubicle/copier common area, and a conference room. Id. at 2.
a. The Report concluded that that “airborne spore counts” in Plaintiff's office and the adjacent hallway of the Purchasing Office were “slightly higher than their exterior sample.” Id. at 4 (emphasis in original). The Report continued as follows:
Curvularia and Nigrospora spores are predominantly common to the outdoor environment. Curvularia spores are allergenic potential mold spores. Aspergillus/Pencillium spores are commonly found in the outdoors and/or indoor environ[]ments and are allergenic potential mold spores and also mycotoxin potential mold spores. Chaetomium and Trichoderma mold spores are formed when water is introduced to create a microbial growth. These spores are not only allergenic potential mold spores, but also mycotoxin potential mold spores.
July 7, 2017 Report 4.
b. Alpha-Omega recommended:
[C]leaning of affected offices, break room and adjacent hallways with HEPA vacuuming, wiping, and air scrubbing with HEPA filtered equipment to include all vertic[al] and horizontal surfaces. All HVAC air filters should be replaced and duct cleaned. All air diffusers covers should be removed, cleaned, and louvers also cleaned.
Currently, there are no Federal or State standards for mold spores concentrations in an interior space. Generally, indoor fungal spores should be of similar types and at levels no greater than outdoor concentrations. Mold spores have the potential to cause adverse health effects and are capable of producing allergens that can trigger allergic reactions or other adverse health effects for persons with intolerance to the specific allergens produced.Id. The July 7, 2017 Report concludes by noting that “none of the information contained in this report should be construed as medical advice. A qualified physician should make any decision relative to medical significance.” Id. at 5 (emphasis in original).
The quoted paragraph is taken directly from the July 7, 2017 Report. The court declines Plaintiff's request to take judicial notice of additional information from the Internet and an OSHA (Occupational Safety and Health Administration) publication providing further information about the role of Trichoderma and Chaetomium in indoor air quality investigations, and about the function of mycotoxins. See Pl. Mem. 4 nn. 3-4 (generally citing Fed.R.Evid. 201). On Reply, Defendant argues the information is not appropriately the subject of judicial notice but would require expert testimony. Reply 3 n.4.
20. The City implemented the recommendations set forth in Alpha-Omega's July 7, 2017 Report (cleaning with HEPA vacuuming, wiping, and weekend air scrubbing). On July 10, 2017, Alpha-Omega returned to the second floor of 1800 Main to conduct additional air sampling to determine which areas, if any, demonstrated an elevated presence of mold spores or other allergens. July 12, 2017 Indoor Air Quality Report (“July 12, 2017 Report”) 1, ECF No. 46-18.
21. On July 12, 2017, the City received the results of Alpha-Omega's second set of air samples and Alpha-Omega's recommendations. According to the July 12, 2017 Report, testing indicated the airborne spore counts in Plaintiff's office were within normal limits and lower than spore counts obtained from an exterior sample. Id. at 2-3. However, testing indicated samples from another staff member's (Anita Higgin's) office and the hallway outside the breakroom contained spore counts that were “slightly higher than the exterior sample.” Id. at 4 (emphasis in original). Alpha-Omega recommended:
HVAC duct cleaning throughout the second floor. After the duct cleaning, we recommend re-cleaning [the other staff member]'s office, break room and hallway adjacent to the breakroom with HEPA vacuuming, wiping, and air scrubbing with HEPA filtered equipment. Cleaning should be conducted to include all vertic[al] and horizontal surfaces in these areas. All HVAC air filters should be replaced with new filters after the cleaning.Id. at 4. The July 12, 2017 Report contained the same language regarding there being no Federal or State standards for mold spores concentrations and the disclaimer that the information should not be construed as medical advice. Id. at 4-5.
22. After receiving Alpha-Omega's July 12, 2017 report, the City implemented Alpha-Omega's recommendations. July 14, 2017 email from Keisler, ECF No. 46-19 (indicating schedule of work to be performed from July 27 through July 31, 2017).
23. After Plaintiff's July 17, 2017 appointment with her physician at Carolina Allergy and Asthma Consultants, she was provided a Clinical Summary Letter that included the following “Plan”:
Symptoms have been triggered by her [Plaintiff's] being at work. She should remain out of work until remediation work has been completed and her work area thoroughly cleaned. [Plaintiff] brings with her today a schedule of work to be done and it includes duct cleaning, HEPA vacuuming and wiping down all services followed by taking Air Quality samples and sending them to the lab on July 31, 2017. “It will take approximately 3 days to get the results back from the lab.”
July 17, 2017 Clinical Summary Letter, ECF No. 46-20.
24. On July 18, 2017 Pamela R. Benjamin, the City's Director of Human Relations (“HR Director”), sent an email to “address the ongoing issues in the Procurement Office.” July 18, 2017 Benjamin email to others, including Wright, ECF No. 46-3. Benjamin advised that there “are no known hazards related to asbestos or any other substance present in the building [to which Procurement had been re located, 1800 Main].” Id. Benjamin continues:
In an abundance of caution, additional cleaning was done to eliminate the minute presence of mold. The presence of mold was almost undetectable but the City went above and beyond to address the issue. The City has the responsibility to ensure that any employee without any underlying personal health issues is working in a safe environment. If an employee has an underlying personal health condition, the City is not responsible for any issue they have as an individual. I hope that the presentation given by our Risk and Safety Manager, Demitrius Rump[h], was helpful in communicating this information to everyone in the Procurement Office.
Although this is not a work related health condition and there are no approved workers' compensation claims, the time missed prior to the cleaning was considered approved leave with pay by the City. We have done more than required to cover the time missed from work to try and accommodate your personal health related issues. It is unfortunate that some of you continue to have personal health issues but going forward, any time missed will not be covered by the City. Any employee who is out because of a personal health related issue will have to take sick leave and or annual leave to be paid for time absent from work. If all leave has been exhausted, the employee will be on leave without pay. All departmental and City policies related to the use of leave should be reviewed and adhered to in the future. If at some point this changes, communication will be sent to anyone involved informing them of such changes.Id. (emphases added).
a. In her email, Benjamin indicates the building at 1800 Main Street had been “thoroughly tested and cleaned prior to the relocation of the Procurement Office.” Id. As noted by Plaintiff, the record does not contain evidence that the building was tested and cleaned prior to the relocation. Rather, the record includes a July 7, 2017 Indoor Air Quality Report in which Alpha-Omega Environmental, Inc. provided the City with results of the July 3, 2017 testing of the air quality in the building. July 2017 Indoor Air Quality Report, ECF No. 46-2. City Director of Safety and Risk Management, Demetrius Rumph, testified he was unaware of any testing that had been performed prior to the move to 1800 Main. Rumph Dep. 27, ECF No. 56-5. The only indication of testing performed prior to the move to 1800 Main was that Alpha-Omega took air samples for asbestos-air-monitoring testing on June 27, 2017, as reported in Alpha-Omega's July 3, 2017 letter to the City indicating those results indicated that fiber concentrations in the building were below the DHEC clean air criteria. July 3, 2017 Letter, ECF No. 46-13.
The parties do not discuss specifics of any presentation given by Rumph, including whether Plaintiff had access to same.
25. In a July 20, 2017 email Robinson reiterated that the City had “excused leave from June 24-July 7, 2017, ” and that any time missed beginning July 8, 2017 would require “some form of leave request (sick, annual or leave without pay).” July 20, 2017 email from Robinson to Procurement, including Plaintiff, ECF No. 46-16. Plaintiff responded, “I will take leave without pay for the pay period June 24 - July 7, 2017. Please let me know how many sick and vacation leave hours I have accrued.” Id. Upon being reminded by Robinson that leave from June 24 through July 7 was excused, Plaintiff indicated she meant to state she would request leave without pay for the pay period of July 8 through 21, 2017. July 21, 2017 email, ECF No. 56-13 at 46.
26. On July 31, 2017, the City had Alpha-Omega return to the second floor of 1800 Main to conduct another round of air sampling on the second floor of 1800 Main to determine which areas, if any, demonstrated an elevated presence of mold spores or other allergens. Aug. 2, 2017 Indoor Air Quality Report (“Aug. 2, 2017 Report”) at 1, ECF No. 46-22. Alpha-Omega noted that the HVAC duct work had recently been cleaned, followed by HEPA vacuuming, wiping, and weekend air scrubbing. Id. Samples were taken from the exterior, Anita Higgin's office, a file room, and a hallway outside of the break room. Id. at 2.
27. On August 2, 2017, the City received the results of Alpha-Omega's third Indoor Air Quality study. Aug. 2, 2017 Report, ECF No. 46-22. According to the August 2, 2017 Report, testing indicated the airborne spore counts in Higgin's office were within normal limits and lower than spore counts obtained from an exterior sample. Aug. 2, 2017 Report 2. However, samples from the file room and the hallway outside the breakroom indicated curvularia and helicomyces / helicosprium spore counts were “slightly higher than the exterior sample.” Id. at 4. That Report indicated, “Curvularia and Helicomyces / Helicospirum spores are predominately common to the outdoor environment. Curvularia spores are allergenic potential mold spores.” Id.
28. The August 2017 Report indicates that “none of the information contained in this report should be construed as medical advice. A qualified physician should make any decision relative to medical significance.” Id. at 5 (emphasis in original).
29. On Sunday, July 23, 2017, at 11:30 a.m., Plaintiff sent an email to Wright indicating she was feeling better. Plaintiff noted there had been a little “confusion” in that Wright had not responded to her July 6, 2017 request to work from another office. July 23, 2017 email chain between Plaintiff and Wright, ECF No. 56-13 at 23. Plaintiff continued, “All I am asking in good faith is to work at another office next week until July 31st.” Id.
30. Wright responded by noting she had responded by text to Plaintiff's July 6, 2017 request to work at a different location and, at that time, Plaintiff was being advised to wait until the doctor “completely releases you to return to work.” Id. Wright continued by indicating it was her understanding that Plaintiff should report to 1800 Main when she felt she could return to work. Wright noted Plaintiff had advised Robinson to “code [Plaintiff] out on leave without pay, ” but for Plaintiff to correct that if it was wrong. Id. Wright told Plaintiff not to “rush” herself to try and return to work too soon and noted they were trying to keep her workload going. Id. Wright closed by reminding Plaintiff she should check in each day. Id.
31. On August 2, 2017, Plaintiff was notified by Companion TPA, the City's third-party workers' compensation benefits administrator, that her workers' compensation claim had been denied. (Ex. 28, Aug. 2, 2017 Letter to Plaintiff, ECF No. 46-23.
32. The record includes an email and attachment Plaintiff sent to Benjamin and others at the City on August 3, 2017, indicating why she believed she was entitled to workers' compensation. ECF No. 56-13 at 28-29. Plaintiff inquired about receiving reimbursement of certain medical expenses and closed by stating the following, “As you know my return to work is pending copies of the air quality results. When will I receive copies [of] the air quality results?” Id. at 29.
33. Plaintiff indicates that August 4, 2017, was possibly the “first time she emailed a request” for the air quality reports, but “attests” it was not the first time she had requested them. Pl. Mem. 8 n.6. The court notes, however, that Plaintiff cites only generally to “exhibit M” in support of this “undisputed fact.” Id. Exhibit M, found at 56-13, is 54 pages in length.
34. In an August 7, 2017 email to Wright, Robinson notes that Plaintiff had texted her on Friday (which would have been August 4, 2017) to ask whether the air quality report was back and Robinson advised it was not. Id. at 30. The court notes an August 9, 2017 email from Plaintiff to Robinson in which Plaintiff asks whether Support Services has provided the air quality results yet. ECF No. 56-13 at 36-37. Robinson responded on August 10, 2017 that she had not seen the reports but would check with Wright. Id. at 36. Plaintiff responded on August 14, 2017 that she would contact her doctor for an updated excuse “[s]ince the air quality results are not available[.]” Id.
35. In an August 7, 2017 letter Vickie Shockley from the City's HR Department advised Plaintiff she was eligible for leave under the FMLA and provided Plaintiff with forms to complete. Aug. 7, 2017 Letter, ECF No. 46-24.
36. In an August 8, 2017 Clinical Summary Report, Robert Vande Stouwe, M.D. indicated, “Remediation work has reportedly been completed but the post remediation report has not been released. Once the report has been reviewed by our office, if it is normal [Plaintiff] should be able to go back to work.” Aug. 8, 2017 Clinical Summary Letter, ECF No. 56-13 at 35.
37. By letter dated August 8, 2017, the City, through Director of Safety & Risk Management Rumph, advised Plaintiff as follows:
a. “There are no current Federal standards regarding permissible levels of airborne fungi that may be present in buildings.” Aug. 8, 2017 Letter to Plaintiff 1, ECF No. 46-26. The general guideline that types and numbers of mold spores inside should be similar to those outside is a “usual tool in assessing abnormal mold contamination; however, it should not be the sole determining factor in evaluating health risks and remediation strategies.” Id.
b. The City indicated it had contacted South Carolina's Licensing Labor and Regulation Occupational Health and Safety Administration (LLR-SC OSHA) “to gain insight/direction of the Indoor Air Quality (IAQ) in reference to mold spores about a concern at the 1800 Main Street building.” Id. The individual to whom the City representative spoke advised there were no specific standards regarding mold spores but indicated that “it appears, we have performed the necessary corrective action by the OSHA guidelines for this issue and we have gone above and beyond, what is needed to apply a corrective action for this concern. The building at 1800 Main Street for the City of Columbia has been deemed a safe work environment for all employees .” Id. (emphasis added).
c. The City indicated it had had air quality testing done, had environmental cleaning done, retested and found “slight mold spore count, ” had additional cleaning done, and retested and obtained results “below outside area.” Id. at 1-2.
d. Rumph concluded, “If anyone would like a copy of the Environmental Indoor Air Quality results, they need to request this information in writing through the City of Columbia Legal Department.” Id. at 2.
38. In deposition, Rumph acknowledged he had not provided the LLR-SC OSHA representatives with copies of the Indoor Air Quality tests performed by Alpha-Omega. Rather, Rumph indicated he verbally advised the LLR-SC OSHA representatives of the CO2 reports the City had performed in-house in late June 2017. Rumph Dep. 37-40. Rumph acknowledged that the conversation was verbal only and that LLR-SC OSHA never provided any “certification, document or anything saying that the building was safe[.]” Rumph Dep. 40.
39. Rumph further acknowledged he did not have access to detailed medical information about Plaintiff and had not considered Plaintiff's particular medical condition(s) or situation in indicating 1800 Main was “a safe work environment for all employees.” Rumph Dep. 41-42.
40. In a letter dated August 9, 2017, HR Director Benjamin wrote to Plaintiff regarding 1800 Main Street and Plaintiff's health issues. Aug. 9, 2017 Benjamin Ltr. to Plaintiff, ECF No. 46-27. Benjamin indicated the “safety and wellbeing of all employees” is important to the City, and it is “unfortunate that your personal health issues are causing you to miss work and incur medical expenses.” Id. at 1. After noting Plaintiff's workers' compensation claim had been denied and advising her about having a June 28, 2017 medical bill reimbursed, Benjamin indicated the following to Plaintiff:
I would like to assure you that the building the Procurement Office has been relocated [to] meets all required safety standards. There are no hazards related to asbestos or any other substance present in the building. The building was thoroughly tested and cleaned prior to the relocation of the Procurement Office. In the abundance of caution, additional cleaning was done to eliminate the minute presence of mold. The presence of mold was almost undetectable but the City went above and beyond to address the issue. The City has a responsibility to ensure that any employee without any underlying personal health issues is working in a safe environment. If an employee has an underlying personal health condition, the City is not responsible for any issue they have as an individual. Your request to work in another location has been denied because the City has fulfilled its responsibility to provide a safe work environment and your request will impact the work of your department. Furthermore, this is an unreasonable accommodation that the City is not required to provide.
Aug 9, 2017 Benjamin Letter 1. Benjamin continued by indicating the City is “not required” to provide copies of air quality results, ” but would be happy to provide a letter outlining efforts and summarizing results for Plaintiff to give to her medical provider. Id.
41. Benjamin concluded by reminding Plaintiff she was “not currently on an approved leave of absence.” Id. at 2. She advised Plaintiff that she was subject to “city handbook guidelines related to excessive absenteeism.” Id. Benjamin noted Plaintiff did not have any accrued leave and was out without pay until she returned to work. Id. Plaintiff was advised, “If you continue to remain out of work, you will need to request to be on FMLA.” Id. Benjamin indicated she was providing the FMLA paperwork. Id. Benjamin closed by indicating she was sorry Plaintiff was “experiencing personal health issues and [she] hope[s] that [Plaintiff is] able to return to work soon.” Id.
42. On or about August 16, 2017, Plaintiff submitted her doctor's FMLA certification form. Certification of Health Care Provider, Robert A. Vande Stouwe, M.D. Ph.D, Allergy & Immunology, ECF No. 46-28. On the form Dr. Stouwe indicated Plaintiff's condition began June 28, 2017, and its “probable duration” was “until air quality study results show workplace air is within normal limits.” Id. at 2. Dr. Stouwe indicated Plaintiff was unable to perform “all functions. She can not be in the workplace.” Id. In describing “relevant medical facts, ” Dr. Stouwe listed “asthma exacerbations triggered by workplace exposure during/post construction.” Id.
43. After the City received and processed Plaintiff's completed FMLA certification form, the City responded by letter dated August 18, 2017, notifying Plaintiff that her FMLA leave of absence had been approved, effective “6/28/17”and noted that Plaintiff “expect[ed the leave] to continue until [her] doctor releases [her] to return to work, not to exceed 12 weeks or 480 hours.” Aug. 18, 2017 Letter to Plaintiff, ECF No. 46-29. The August 18 letter included additional information regarding her return to work and an FMLA publication from the U.S. Department of Labor FMLA rights publication. In the attachment entitled “Employer Response to Employee Request for Family or Medical Leave, ” the City indicated Plaintiff made it aware of her need to take such leave on August 7, 2017. Id. at 2.
a. In her brief Plaintiff indicates she did not receive the letter dated August 18, 2017 until August 25, 2017. Pl. Mem. 11 (including no citation to record).
44. Benjamin emailed Plaintiff on August 23, 2017, informing her that her request for FMLA had been approved effective June 28, 2017, and that her paperwork was being placed in the mail that day. Aug. 23, 2017 email from Benjamin to Plaintiff, ECF No. 46-30. In this e-mail, Benjamin stated:
Your paperwork indicates that you can return to work once “air quality study results show workplace air is within normal limits.” Based on the results from all of our testing, the air quality is normal and by workplace/OSHA standards has always been “normal.” Please have your doctor update the paperwork to indicate when you can return to work. You are more than welcome to provide your doctor the letter provided to you by our Director of Risk & Safety [], Demetrius Rumph. Please let me know if you have any questions. Id.
45. Neither party highlights any direct further communication between Plaintiff and Defendant between August 23, 2017 and October 6, 2017.
46. On September 25, 2017, Wright sent an email to various people, including Plaintiff, and attached a job posting for a Senior Buyer Position posted on September 25, 2017. Sept. 25, 2017 email, ECF No. 56-8 (attaching copy of posting from City of Columbia Career Portal on City website).
47. The parties disagree as to whether this posting was for Plaintiff's buyer's position.
a. Benjamin testified that this posting was not necessarily a posting for Plaintiff's position. Benjamin Dep. 89 (“We post positions all the time. I don't know that this is [Plaintiff's] position. . . . And we would not have posted her job until she vacated her position. We don't do that.”).
b. Plaintiff takes the position it was a posting to hire her replacement, arguing this makes September 25, 2017 the date her “employment was terminated as she would not have a job to return to . . . .” Pl. Mem. 10-11. Plaintiff submits that Benjamin's statement that the posting would not be for Plaintiff's position is “debunked by the City conducting an email search and providing [the email and posting] as responsive to Plaintiff's requests for RFPs.” Pl. Mem. 11.
c. Plaintiff's position is referred to as that of a “Buyer, ” with a Pay Grade of 111. ECF No. 44-5 at 1. The referenced posting was for a “Senior Buyer” with a Pay Grade of 112. ECF No. 56-8 at 1.
48. Plaintiff testified that around the end of September 2017 she was feeling healthy enough to return to work. Pl. Dep. 106-07 (indicating by that time she was “healthy enough to return to work in a safe work environment”).
49. In a letter dated October 6, 2017, the City, through Benjamin, reminded Plaintiff that her 12-week FMLA leave had ended on September 22, 2017. Oct. 6, 2017 Letter, ECF No. 46-31. The letter further noted that “Human Resources has not heard from you since you began your Family Medical Leave of Absence . . . .” Id. Plaintiff was advised that if Plaintiff had not returned to work by October 13, 2017, along with a statement from her doctor releasing her to return to full work duty, the City “will consider [her] to have resigned from the City of Columbia.” Id.
a. Plaintiff submits in her response that Benjamin's statement that “Human Resources has not heard from you since you began your Family Medical Leave of Absence” is a “blatantly and an intentionally false statement by Benjamin as the record is replete with text messages, emails, and references to phone conversations between [Plaintiff] and various City officials.” Pl. Mem. 12 (providing no specific citations to the record).
b. Without citing to the record, Plaintiff indicates that she, through her attorneys, “attempted to clarify the nature of her FMLA leave, but the City never would provide adequate responses.” Pl. Mem. 12. Further, Plaintiff indicates in her brief that by the time she received Benjamin's October 6, 2017 correspondence, “she did not believe she could return to work because of the hostile and apathetic treatment from Benjamin, Wright, and others at the City. In addition, the City continued to refuse to provide [Plaintiff] with the air quality reports to provide her physician-who would not release her to return to work until he could review the reports.” Pl. Mem. 12.
50. By correspondence dated October 11, 2017, an attorney for Plaintiff filed a Form 50 Employee's Notice of Claim and/or Request for Hearing with the South Carolina Workers' Compensation Commission. S.C. WCC Form 50, ECF No. 46-32.
51. Plaintiff did not respond to the October 6, 2017 letter nor did she return to work. Accordingly, effective October 13, 2017, the City regarded Plaintiff as having resigned. Nov. 3, 2017 Letter from Wright to Plaintiff, ECF No. 46-33. In the November 3, 2017 letter Plaintiff was advised that she had been “officially separated from employment with the City.” Id. Plaintiff did not challenge her separation through the City's grievance process or otherwise respond to the November 3, 2017 letter.
52. Plaintiff submits that, by categorizing Plaintiff's termination as a “resignation, ” the “City foreclosed any opportunity for [Plaintiff] to challenge the City's actions through its grievance process.” Pl. Mem. 12 (citing Employee Handbook 69, ECF No. 56-11).
The City's Grievance Procedure defines a “grievance” as “any complaint by an employee that he has been treated unfairly, unlawfully, or in violation of City policy, with regard to any matter pertaining to his employment by the City of Columbia.” ECF No. 56-11 at 4. The policy then lists several matters, including “discharge; suspension; involuntary transfer; promotion and demotion[, ]” but indicates grievable matters are not limited by those listed. Id.
53. Plaintiff and the City entered an Agreement and Release to settle her workers' compensation claim on January 24, 2018. Agreement and Release, ECF No. 46-34.
54. The record includes an unsigned EEOC Form 5 Charge of Discrimination, which designated disability discrimination as the basis for her Charge. EEOC Form 5 Charge of Discrimination, ECF No. 46-36 (received by EEOC on February 26, 2018). The Charge was accompanied by a notarized affidavit. Aff. of Plaintiff, dated Feb. 22, 2018, ECF No. 46-37 (attachments omitted).
55. At Plaintiff's request, the EEOC issued a right to sue on September 27, 2018. Email from J. Dickey to V. Miller, Sept. 18, 2018, ECF No. 46-38; Notice of Right to Sue (Issued on Request), dated Sept. 27, 2018, ECF No. 46-39.
III. Standard of Review
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 a judgment as a matter of law.” Fed.R.Civ.P. 56(a). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials;” or “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).
In considering a motion for summary judgment, the evidence of the non-moving party is to be believed and all justifiable inferences must be drawn in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, “[o]nly 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. at 248. All that is required is that “sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” Anderson, 477 U.S. at 249. “Mere unsupported speculation . . . is not enough to defeat a summary judgment motion.” Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th Cir. 1995). A party cannot create a genuine issue of material fact solely with conclusions in his or her own affidavit or deposition that are not based on personal knowledge. See Latif v. The Cmty. Coll. of Baltimore, 354 Fed.Appx. 828, 830 (4th Cir. 2009) (affirming district court's grant of summary judgment, noting plaintiff's affidavit, which offered conclusions not based on his own knowledge, did not create genuine issues of material fact). In discrimination cases, a party is entitled to summary judgment if no reasonable jury could rule in the non-moving party's favor. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002) (Title VII). The court cannot make credibility determinations or weigh the evidence, but the court should examine uncontradicted and unimpeached evidence offered by the moving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The court must determine whether a party's offered evidence is legally sufficient to support a finding of discrimination and look at the strength of a party's case on its own terms. See Id. at 148 (stating that “[c]ertainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational fact-finder could conclude that the action was discriminatory”). IV. Analysis Defendant seeks summary judgment as to all of Plaintiff's claims. The court first considers Plaintiff's federal claims.
A. FMLA interference claim
The FMLA makes it “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 . . . demonstrate that (1) [s]he is entitled to an FMLA benefit; (2) [her] employer interfered with the provision of that benefit; and (3) that [the] interference caused harm.” Adams v. Anne Arundel Cnty. Pub. Sch., 789 F.3d 422, 427 (4th Cir. 2015). Plaintiff must show not only the “fact of interference, but also that the violation prejudiced her in some way.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002); see 29 U.S.C. § 2617(a)(1).
The parties agree that Plaintiff was entitled to FMLA leave. They differ on whether Defendant gave appropriate notice to Plaintiff regarding FMLA leave and whether her leave was appropriately calculated and designated. Once an employer is on notice that an employee has a need for FMLA leave, the employer must provide an individual, written notice to affected employees that an absence qualifies under the FMLA. See 29 C.F.R. § 825.300. There are two types of individualized notice that the employer must give an employee who may be entitled to FMLA leave: a “rights and responsibilities notice, ” id. § 825.300(c); and a “designation notice, ” id. § 825.300(d). Plaintiff's claims of “interference” concern alleged issues with her notice of the right to FMLA leave (“rights and responsibilities notice”) and, relatedly, issues Plaintiff claims arise from Defendant's “back-dating” the FMLA leave so that it began on June 28, 2017, rather than beginning around the time Plaintiff submitted the FMLA paperwork (“designation notice”). Defendant denies any interference took place and also argues that, even if it did, Plaintiff has not presented competent evidence of any resultant prejudice.
The City argues it did not interfere with Plaintiff's FMLA leave in that it appropriately gave her notice of the right to leave both by way of the Employee Handbook and through the documents mailed to Plaintiff along with her approval for FMLA leave. Def. Mem. 16-17. Defendant points to portions of the Employee Handbook that provide employees with information regarding the availability of leave pursuant to the FMLA, including notice that an employee's 12 weeks of FMLA leave “will run concurrently with any paid leave, i.e., sick leave, annual leave or any other paid leaves for which the employee is eligible.” Employee Handbook 45; see Id. at 44-45, ECF No. 44-4. Defendant notes that the FMLA leave provided used the start date as June 28, 2017, which was the onset date identified by Plaintiff's doctor. See Aug. 18, 2017 Letter to Plaintiff (attaching notifications and advising FMLA leave took effect June 28, 2017 and was available for up to 12 weeks), ECF No. 46-29. In any event, the City argues that, even if it had notice of Plaintiff's need for FMLA leave prior to Plaintiff's August 7, 2017 request for such leave, she has not been prejudiced by the City's designation that her leave began on June 28, 2017, which was the date designated by her doctor in the FMLA paperwork. Def. Mem. 17-19.
In response, Plaintiff first argues that the City failed to notify Plaintiff of her right to FMLA leave. She argues that the City was aware of Plaintiff's need for FMLA leave well before Plaintiff's early-August 2017 request to take such leave. Pl. Mem. 20-21.
The City does not specifically respond to the portion of Plaintiff's notice argument that concerns the rights and responsibilities notice. Taking all facts in the light most favorable to Plaintiff, it is at least arguable that, upon learning of Plaintiff's need for leave in late July the City had enough information to have been on notice that she needed leave for a medical reason well before Plaintiff herself requested that the City provide her FMLA information. Caselaw supports Plaintiff's argument that, once the employer is on notice that an employee needs leave for a medical reason the burden is on the employer, not the employee, to ascertain whether the need for leave would qualify as a “serious health condition” that would qualify for FMLA leave. Once the employee informs the employer that she needs leave for a medical reason, “the burden then shifts to the employer to gather additional information and determine if the FMLA is actually implicated.” Krenzke v. Alexandria Motor Cars, Inc., 289 Fed.Appx. 629, 632 (4th Cir. 2008). Even so, Plaintiff still needs to demonstrate resulting prejudice in order to survive summary judgment. Plaintiff claims that, had the City provided her with “appropriate notices as well as correctly calculat[ing] and administer[ing] her FMLA leave, she would not have been terminated, not have felt she needed to find a new job, or determined in October 2017 that returning to work was not in her health's best interests.” Pl. Mem. 20 (citing Vannoy v. FRB of Richmond, 827 F.3d 296 (4th Cir. 2016)). Plaintiff does not point to any record evidence to support these claims, however.
The Vannoy court noted the following:
Prejudice may be gleaned from evidence that had the plaintiff received the required (but omitted) information regarding his FMLA rights, he would have structured his leave differently. Lupyan [v. Corinthian Colleges, Inc.], 761 F.3d [314], 324 [3d Cir. 2014)]; Downey v. Strain, 510 F.3d 534, 537 (5th Cir. 2007) (finding prejudice where evidence showed employee “would have postponed her knee surgery to a time when it would not have caused her to exceed her FMLA allowance”); cf. Dorsey v. Jacobson Holman, PLLC, 476 Fed.Appx. 861, 862 (D.C. Cir. 2012) (concluding plaintiff could not show prejudice where she “never returned to work” and “provides no record evidence whatsoever that she could have structured her leave differently”).Vannoy v. Fed. Reserve Bank of Richmond, 827 F.3d 296, 302 (4th Cir. 2016).
In Vannoy, the plaintiff complained that he had never received notice of the protection the FMLA afforded him-to permit him to return to his position upon return from leave. Vannoy argued that, had he known of the job protection he would have structured his leave differently and not returned to work early. 827 F.3d at 303. The Fourth Circuit denied summary judgment, noting Vannoy's testimony on the point of how he would have structured things differently was “unequivocal.” Id. Here, however, Plaintiff does not point to actual record evidence in support of her prejudice argument. Although her affidavit indicates that she could have scheduled doctor's appointments differently and managed her paid leave differently she never explains what she means by that or how she suffered prejudice. Pl. Aff. ¶¶ 41, 42. Plaintiff also claims interference based on the City's alleged miscalculation of her FMLA leave. In an argument seemingly at odds with Plaintiff's claim that the City should have focused on her FMLA-eligibility earlier than the time she applied for it, Plaintiff also argues that her FMLA leave should not have begun until sometime in mid-August after she had submitted the FMLA forms, generally noting she had already used her “sick and vacation leave a well as unclassified leave” from July 8 through August 23, 2017. Pl. Mem. 20. Relatedly, Plaintiff claims the City interfered by backdating the FMLA leave period and using the date Plaintiff was first out of work-the same date provided by her physician-as the onset date of the FMLA-qualifying serious health condition.
Nor does Plaintiff address Defendant's reliance on the unambiguous language of the Employee Handbook to put her on notice of the availability of FMLA leave and that an employee is eligible for reinstatement to “his former position or a position equivalent to his former position” at the conclusion of such leave. Handbook 45, ECF No. 44-4.
As noted above, for purposes of this motion the court finds it appropriate to accept, arguendo, that Plaintiff has set out an issue of fact as to whether notice of FMLA availability was timely provided. That in and of itself is insufficient to defeat summary judgment. Rather, the regulations permit an employer to redesignate leave as FMLA leave so long as the employee is notified:
(d) Retroactive designation. If an employer does not designate leave as required by § 825.300, the employer may retroactively designate leave as FMLA leave with appropriate notice to the employee as required by § 825.300 provided that the employer's failure to timely designate leave does not cause harm or injury to the employee. In all cases where leave would qualify for FMLA protections, an employer and an employee can mutually agree that leave be retroactively designated as FMLA leave.29 C.F.R. § 825.301 (emphasis added). As Defendant has noted, the Employee Handbook provides employees with information regarding the availability of leave pursuant to the FMLA, including notice that an employee's 12 weeks of FMLA leave “will run concurrently with any paid leave, i.e., sick leave, annual leave or any other paid leaves for which the employee is eligible.” Employee Handbook 45; see Id. at 44-45, ECF No. 44-4.
The court notes Plaintiff's argument that regulations require that an employer provide notice of the redesignation “within two business days absent extenuating circumstances.” Pl. Mem. 16 (citing 29 C.F.R. § 825.208(b)(1)). However, that regulation was effective only until January 16, 2009. Even if Plaintiff provides an updated regulation that contains a similar requirement, the analysis does not end.
As both parties indicate in their briefs, FMLA can be retroactively designated and failure-to-strictly-follow notice requirements is not actionable interference so long as the employee is not harmed. Def. Mem. 17, Pl. Mem. 16 (both citing 29 C.F.R. § 825.301). Information provided by the City in its Handbook, as well as the notices provided to Plaintiff in August regarding the designation of her FMLA leave, plainly told her that the leave was beginning on June 28, 2017. She did not question it at the time (or if she did, it is not in the record). Plaintiff's general attempt to indicate she was prejudiced by the redesignation of the FMLA leave period to coincide with the date her physician indicated on the FMLA forms is speculative and insufficient to permit a reasonable juror to infer she was prejudiced by the City's handling of her FMLA leave. Without citing to any portion of the record, for example, Plaintiff argues she was prejudiced because, had the City provided her with appropriate notices and correctly calculated her FMLA leave, she “would not have been terminated, not have felt that she needed to find a new job, or determined in October 2017 that returning to work was not in her health's best interests.” Pl. Mem. 20. In Plaintiff's affidavit prepared in opposition to the pending dispositive motion Plaintiff generally states that she “attempted to seek clarification regarding [her] FMLA leave so [she] could plan accordingly, but never received a clear answer from the City. [She] had to retain an attorney to seek clarification.” Pl. Aff. ¶ 32. Significantly, Plaintiff does not explain how she “attempted to seek clarification” and has pointed to no testimony or documentary evidence of communications to that effect. Plaintiff also indicates in her affidavit that her lawyer wrote City attorney on September 18, 2017 “in an effort to get [Plaintiff] back to work and to provide clarity on [her] FMLA leave before the end date so [she] would [know her] employment status.” Pl. Aff. ¶ 35. Plaintiff indicates no response was received. Although Plaintiff readily could have provided a copy of the letter as part of the record in this matter, she does not appear to have done so. In any event, the letter was not sent until weeks after Plaintiff had been advised that her FMLA leave was beginning as of June 28, 2017. Such a belated inquiry is not indicative of prejudice. Plaintiff also argues that the City erred in counting the week of June 27 - July 7 against her 12 weeks of FMLA leave based on Benjamin's letter to all Purchasing Department employees that leave from that time period would be excused. The court agrees that Plaintiff has a point about not having to include that first week-June 28-July 7-based on Benjamin's July 18, 2017 letter to all Procurement employees about that week not counting against any leave. That point is borne out by a portion of Benjamin's deposition testimony: at one point she agrees with Plaintiff's counsel that it would be inappropriate for that first week to count as one of Plaintiff's 12 weeks of FMLA leave. Benjamin Dep. 85. However, that would extend the end-date of Plaintiff's leave to September 29, weeks before the October 13, 2017 date the City advised Plaintiff she had to return to work with clearance from her doctor. No. prejudice has been shown by this potential one-week variance.
Nor do the cases from Virginia and New Jersey on which Plaintiff relies salvage her interference claim. Plaintiff's reliance on Blankenship v. Buchanan General Hospital, 999 F.Supp. 832, 836 (W.D. Va. 1998), is misplaced. In that case the employer designated the employee's leave as of the date she went out of work, which was several weeks prior to the date the plaintiff had submitted the FMLA paperwork. Blankenship was not advised until about one month later of the retroactive designation. The court's focus was not on the fact that the FMLA-start date was backdated, but in the month-long delay by the employer in notifying the employee of that decision. The court found that was not reasonable and denied summary judgment. 999 F.Supp. at 837. Here, by August 23, 2017, Plaintiff had been advised that her leave began June 28 and ran through September 22, 2017. In a letter dated October 6, 2017, the HR director reminded Plaintiff that her leave had expired and that she needed to return by October 13, 2017 with a certification that she could return to full duty. The October 13 date effectively gave her 15 weeks from the June 28 onset date. Additionally, both Blankenship and a case it discusses, Vierceck v. City of Gloucester, 961 F.Supp. 703, 707 (D.N.J. 1997), were interpreting the no-longer-existent 29 C.F.R. § 825.208.
Finally, the court finds that Plaintiff's attempts to interject September 25, 2017-the date a Buyer job position was posted-as being her actual “termination” date and demonstrating prejudice simply has no basis in fact in the record. Accepting all facts and inferences in Plaintiff's favor, the court simply cannot deem that Plaintiff was somehow “terminated” on a date a job position for a position similar to (but not the same as) hers was posted. She was included on an email advising the Purchasing Department of the posting. She was not advised she was being terminated at that time. Indeed, she was still on FMLA leave at that time. Further, she was advised by Benjamin in early October that she was employed through October 13, 2017 but would be deemed separated from employment if she did not return by that time. Plaintiff was not “terminated” on September 25, 2017. Rather, she chose not to return or otherwise engage with the City regarding her employment by October 13, 2017, having the effect of having her being “considered as resigning from the City of Columbia.” Nov. 3, 2017 Letter from Benjamin to Plaintiff, ECF No. 46-33. The court notes that constructive discharge, if established, could demonstrate prejudice in the FMLA-interference sense. See Festerman v. Cnty. of Wayne, 611 Fed.Appx. 310, 318-19 (6th Cir. 2015) (recognizing that constructive discharge can satisfy the prejudice prong of an FMLA interference claim provided that the plaintiff offers sufficient evidence to establish the requisite elements).
Here, though, Plaintiff has not presented evidence of constructive discharge. To prove constructive discharge, Plaintiff must show that she “was subjected to circumstances ‘so intolerable that a reasonable person would resign.'” U.S. Equal Employment Opportunity Comm'n v. Consol Energy, Inc., 860 F.3d 131, 144-45 (4th Cir. 2017) (quoting Green v. Brennan, 136 S.Ct. 1769, 1779 (2016)). “The intolerability standard requires objective intolerability, but the controlling legal test no longer requires a plaintiff to demonstrate that the defendant had a subjective intent to force a resignation, ” i.e. deliberateness. Lindsay-Felton v. FQSR, LLC, 352 F.Supp.3d 597, 606 (E.D. Va. 2018) (quotations omitted); see Brady v. Bd. of Educ. of Prince George's Cnty., 707 Fed.Appx. 780, 781 (4th Cir. 2018) (“We note that the district court, in addressing Brady's constructive discharge claim, erred in its statement of the elements of that claim. In 2016, several months before the district court issued its ruling, the Supreme Court held that deliberateness of the employer's action is not required for a constructive discharge claim.”).
Although subjective intent to force Plaintiff to resign is not required to demonstrate constructive discharge, Plaintiff is required to show she was subjected to circumstances that were so objectively intolerable they would cause a reasonable person to resign. This she has not done. Her only attempt to satisfy this standard is her unsupported argument that “working in an office where you can barely breathe and your employer is utterly unconcerned about your safety or returning to work” is enough. Pl. Mem. 22. The evidence, taken in the light most favorable to Plaintiff, simply does not come close to showing objective unreasonableness. Plaintiff has not demonstrated that the City was “utterly unconcerned about [Plaintiff's] safety or [her] returning to work.” Rather, the City provided her with FMLA paperwork and promptly completed the paperwork, advising her of the dates her FMLA leave would run. Rather than simply terminate her when she did not return to work by September 22, 2017, the official last day of her leave period pursuant to the approval paperwork, the City wrote to Plaintiff and gave her a grace period of three weeks within which to return. Oct. 6, 2017 Letter from Benjamin to Plaintiff, ECF No. 46-31. Additionally, the evidence shows that Plaintiff made no attempt to return to work. It is difficult to make the leap, then, to say that she could not work there because she could “barely breathe.” Plaintiff has not demonstrated she was constructively discharged. Her failure to return to work, then, does not demonstrate the requisite prejudice required to survive summary judgment as to her FMLA interference claim. See McCormack v. Blue Ridge Behav. Healthcare, No. 7:18CV00457, 2021 WL 804199, at *10 (W.D. Va. Mar. 3, 2021) (finding plaintiff had not presented evidence of constructive discharge to satisfy prejudice requirement in FMLA interference claim).
Even assuming Plaintiff could demonstrate some technical defect in the way the City noticed or calculated Plaintiff's FMLA leave, she has not provided competent evidence from which a reasonable juror could determine she experienced prejudice as a result. Summary judgment as to Plaintiff's FMLA interference claim is appropriate.
B. ADA failure to accommodate claim
The ADA provides that “[n]o covered entity shall discriminate 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). Plaintiff alleges violations of the ADA based on Defendant's failure to accommodate her by not permitting her to work at an alternate location and by not participating in an interactive process to determine whether any accommodations would permit Plaintiff to perform her job. Compl. ¶¶ 59-76. Defendant seeks summary judgment as to both ADA claims. Def. Mem. 19-26, Reply 7-9.
Plaintiff also claims retaliation in violation of the ADA and of the FMLA. Defendant's argument that summary judgment is appropriate as to those claims is discussed below.
“Under the ADA, an employer is prohibited from ‘discriminat[ing] against a qualified individual on the basis of disability . . . .'” Wilson v. Dollar Gen. Corp., 717 F.3d 337, 344 (4th Cir. 2013) (quoting 42 U.S.C. § 12112(a)). A “qualified individual” is one “who, with or without reasonable accommodation, can perform the essential functions of the employment position.” 42 U.S.C. § 12111(8). Unlawful disability discrimination “can include the failure to make ‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee . . . .'” Wilson, 717 F.3d at 344-45 (quoting 42 U.S.C. § 12112(b)(5)(A)).
To establish a prima facie case of failure to accommodate under the Rehabilitation Act or the ADA, Plaintiff must demonstrate “that (1) she qualifies as an ‘individual with a disability,' as defined in 29 U.S.C. § 705(20); (2) the [City] had notice of her disability; (3) she could perform the essential functions of her job with a reasonable accommodation; and (4) the [City] refused to make any reasonable accommodation.” Reyazuddin v. Montgomery Cnty., Maryland, 789 F.3d 407, 414 (4th Cir. 2015) (citing 29 U.S.C. § 794(a); Wilson, 717 F.3d at 345). See also Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995) (explaining same analysis is applied to ADA and Rehabilitation Act discrimination claims). Plaintiff has the burden of identifying a reasonable accommodation that would allow a qualified individual to perform the job. Shin v. Univ. of Md. Med. Sys. Corp., 369 Fed.Appx. 472, 481 (4th Cir. 2010). To be reasonable, an accommodation must be “feasible or plausible.” Reyazuddin, 789 F.3d at 414. Defendant seeks summary judgment, arguing Plaintiff has not satisfied her burden. Defendant cites EEOC guidance that acknowledged that, “for some jobs, the essential duties [of a job] can only be performed in the workplace.” Def. Mem. 21 (citing EEOC Guidance, “Work at Home/Telework as a Reasonable Accommodation”), https://www.eeoc.gov/laws/guidance/work-hometelework-reasonable-accommodation (issued Feb. 3, 2003; last viewed Apr. 19, 2021). Defendant cites to testimony that Plaintiff's duties required her to process orders using specialized equipment located within the office and to interact with employees onsite. Wright Dep. 58-62. At bottom, Defendant submits, even if Plaintiff did some portion of her job's duties remotely other portions of her job functions would then have to be turned over to someone else to complete. Id. at 60. See Lewis v. Gibson, 621 Fed.Appx. 163, 165 (4th Cir. 2015) (“an accommodation that would require other employees to work harder is unreasonable.” HR Director Benjamin further indicated that, once the air had been remediated there would be no reason Plaintiff could not have returned to the Procurement Office. Benjamin Dep. 67-68. Defendant also notes that permitting an employee to be out on leave is also a form of reasonable accommodation. Def. Mem. 21-22 (citing EEOC Guidance issued Oct. 17, 2002). Plaintiff does not specifically respond to Defendant's citation to EEOC guidance or to the deposition testimony of Wright and Benjamin that Plaintiff could not perform the essential functions of her Buyer job in 2017 by working from home. In fact, Plaintiff claims that there is “nothing in the record that demonstrates Maffett would be unable to perform the essential functions of her job with a reasonable accommodation.” Pl. Mem. 23. Instead, Plaintiff claims the ADA was violated because Defendant did not engage in an interactive process with Plaintiff to consider reasonable accommodations. Plaintiff submits that Defendant improperly claims the teleworking accommodation was unreasonable with “absolutely no discussion or other interaction with Maffett or her treating physician.” Pl. Mem. 23 (citing Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562 (4th Cir. 2015) (“The ADA imposes upon employers a good-faith duty to engage with their employees in an interactive process to identify a reasonable accommodation. This duty is triggered when an employee communicates her disability and desire for an accommodation.”).
Plaintiff also argues Defendant did not acknowledge she had a “medical condition, ” citing Benjamin's testimony about not knowing everything early on. Pl. Mem. 23. For purposes of the motion, however, Defendant has conceded she was “an individual with a disability” and that the City had notice of the disability. Def. Mem. 20, 22.
Regarding the interactive process, the court notes that several cases do set out the requirement for some “interactive” discussion in mandatory terms. However, 29 C.F.R. § 1630.2 indicates that, in order to “determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation.” 29 C.F.R. § 1630.2(o)(3) (emphasis added). In this instance, Wright and Benjamin were in a position to know what the essential functions of Plaintiff's job were and whether they reasonably could be performed remotely. It is difficult to imagine how Plaintiff or her physician was required to make this determination. Further, the Fourth Circuit has specifically noted that “an employer will not be liable for failure to engage in the interactive process if the employee ultimately fails to demonstrate the existence of a reasonable accommodation that would allow her to perform the essential functions of the position.” Jacobs, 780 F.3d at 581 (citation omitted).
In opposing summary judgment Plaintiff argues she put forth the “reasonable accommodation” of working remotely. Pl. Mem. 23-24. Plaintiff references testimony taken from the City's information technology representative, as evidence that Plaintiff “easily could have been set up to perform her job as a Buyer remotely in 2017.” Pl. Mem. 24 (citing Williams Dep. 24). She submits Williams' testimony “contradicts” that of others. Williams indicated he could obtain the equipment Plaintiff would have needed and could have set her up in a matter of hours once he had the appropriate equipment. Williams Dep. 20, 22. Plaintiff also points to Wright's testimony that “all Buyers in the City of Columbia's Purchasing Office have been working remotely since March 2020.” Pl. Mem. 24 n.14 (citing Wright Dep. 7).
However, in his deposition Williams indicated his testimony regarding how he would set up an employee, including a buyer, to work remotely was “limited to the technological matters relating to remote work.” Williams Dep. 30. Further, Wright's testimony regarding the remote work by buyers beginning in March 2020 does not unequivocally indicate that “all Buyers” have been working remotely since the start of the pandemic in March 2020. Rather, Wright indicates that the Procurement Department is trying to “make the best of the situation, ” but has to have “some buyers sometimes to be in the office[.]” Wright Dep. 8.
Plaintiff never addresses the EEOC guidance cited by Defendant that some essential functions of some jobs could not be performed remotely. In addition to the guidance noted by Defendant, the undersigned notes the more recent EEOC guidance (provided in question and answer form), which has been issued since the March 2020 pandemic and attendant remote-work opportunities began:
D.15. Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does the employer automatically have to grant telework as a reasonable accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation? (9/8/20; adapted from 3/27/20 Webinar Question 21)
No. Any time an employee requests a reasonable accommodation, the employer is entitled to understand the disability-related limitation that necessitates an accommodation. If there is no disability-related limitation that requires teleworking, then the employer does not have to provide telework as an accommodation. Or, if there is a disability-related limitation but the employer can effectively address the need with another form of reasonable accommodation at the workplace, then the employer can choose that alternative to telework.
To the extent that an employer is permitting telework to employees because of COVID-19 and is choosing to excuse an employee from performing one or more essential functions, then a request-after the workplace reopens-to continue telework as a reasonable accommodation does not have to be granted if it requires continuing to excuse the employee from performing an essential function. The ADA never requires an employer to eliminate an essential function as an accommodation for an individual with a disability.
The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job's essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee's essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules.https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (updated by EEOC on Sept. 8, 2020; last viewed Apr. 19, 2021). The EEOC notes that, to some extent, the COVID-19 pandemic has caused employers to permit telework and “excuse an employee from performing one or more essential functions.” The pandemic-era excusing of certain essential functions does not, however, mean that the essential functions have somehow changed. Just as the employer is “under no obligation under the ADA to continue to excuse [such] employees from performing essential job functions” post-COVID, any pandemic-related relaxing of the performance of essential functions is not relevant to what a job's essential functions were in the pre-COVID era. In other words, even if some employees-including Buyers-were permitted to telework during the COVID pandemic, the essential functions of their positions are not altered permanently, nor are they somehow retroactively altered.
Considering all facts in Plaintiff's favor, she has not set forth a prima facie failure-to-accommodate claim. She has not demonstrated the existence of a reasonable accommodation that would have permitted her to perform essential functions of her buyer position in 2017. Further, the City provided her with leave from June 28, 2017 through October 13, 2017, hired contractors to clean the air in her workspace, and gave her leave in excess of the 12 weeks the FMLA required. Plaintiff has provided no evidence that she communicated with the City's HR representatives when they advised her she needed to return by October 13, 2017 or be considered to have resigned. Plaintiff made no effort to return or even to examine her cleaned-up workspace. She has not set out a failure-to-accommodate claim. Summary judgment is appropriate.
C. FMLA and ADA retaliation claims
Plaintiff also claims she was retaliated against for exercising her rights under the FMLA to take medical leave in violation of 29 U.S.C. § 2615(a)(2), which makes it “unlawful for any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by [the FMLA].” Similarly, the ADA provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203.
Plaintiff has offered no direct evidence of retaliation. In the absence of direct evidence, the McDonnell Douglas burden-shifting framework applies to Plaintiff's retaliation claims under the FMLA and ADA. Fry v. Rand Constr. Corp., 964 F.3d 239, 245 (4th Cir. 2020); Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th Cir. 2013) (“FMLA retaliation claims are analogous to discrimination claims brought under Title VII.” (citing Yashenko v. Harrah's N.C. Casino Co., 446 F.3d 541, 551 (4th Cir. 2006))). “Thus, a plaintiff may succeed either by providing direct evidence of discrimination or by satisfying the burden-shifting framework set forth in McDonnell Douglas[ ].” Laing, 703 F.3d at 717.
In order to establish a prima facie case of retaliation under either statutory scheme, a plaintiff must allege (1) that she has engaged in conduct protected by the statute; (2) that she suffered an adverse action subsequent to engaging in the protected conduct; and (3) that there was a causal link between the protected activity and the adverse action. Rhoads v. FDIC, 257 F.3d 373, 392 (4th Cir. 2001) (ADA); Sharif v. United Airlines, Inc., 841 F.3d 199, 203 (4th Cir. 2016) (FMLA). If Plaintiff establishes a prima facie case, then a presumption of retaliation arises and the “burden of production then shifts to the employer to rebut the . . . presumption of retaliation and provide [a] legitimate, nondiscriminatory reason for the adverse employment action.” Sharif, 841 F.3d at 203 (internal quotation marks omitted). If the employer rebuts the presumption of retaliation, then “the plaintiff resumes the burden of persuading the factfinder that the employer's proffered explanation is merely a pretext for [retaliation], ” which the plaintiff can do “by showing either that the employer's explanation is not credible, or that the employer's decision was more likely the result of retaliation.” Id. Accordingly, to survive summary judgment on a retaliation claim, “the plaintiff must produce sufficient evidence to create a genuine dispute of material fact such that a reasonable factfinder could conclude the adverse employment action was taken for an impermissible reason, i.e., retaliation.” Id.
Plaintiff engaged in protected activity under the FMLA by requesting FMLA leave and under the ADA by seeking accommodation. Defendant seeks summary judgment as to the remainder of the prima facie case, arguing Plaintiff has not set out a materially adverse action or any causal link between any possible adverse action and the protected activity. Even if Plaintiff established a prima facie case Defendant argues she cannot establish pretext. Def. Mem. 26-30.
The undersigned finds summary judgment is appropriate because Plaintiff has not set out evidence of a materially adverse action in relation to her retaliation claims. To establish the adverse action prong of a prima facie 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 [claim under the FMLA or the ADA].” Chand v. Harker, No. CV 3:20-01578-MGL, 2021 WL 1115912, at *3 (D.S.C. Mar. 24, 2021) (citing Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006); dismissing retaliation claim for lack of a materially adverse action).
In opposing summary judgment Plaintiff never specifically explains what “materially adverse actions” were caused by her requesting FMLA leave and an ADA accommodation. Rather, Plaintiff focuses in large measure on Defendant's arguments regarding pretext. Construing Plaintiff's arguments liberally, she seems to argue she was adversely affected by being “terminated, ” and by the City's refusal to engage in an interactive process to determine a reasonable accommodation or to determine whether she was eligible for FMLA leave. She also notes the City's failure to provide her with copies of the air quality reports when she requested them. Pl. Mem. 25. Plaintiff offers no legal analysis as to how these claims were “materially adverse actions” for purposes of her retaliation claims.
Certainly, termination-if established in fact or by constructive discharge-would be considered a materially adverse act. However, as discussed above, Plaintiff has presented no evidence that she was “terminated, ” nor has she shown she was constructively discharged.
Further, to the extent Plaintiff is looking to the City's alleged failure to engage in an interactive process to determine a reasonable accommodation for ADA purposes or failure to appropriately determine her FMLA eligibility, those allegations are elements of her failure to accommodate and interference claims. They are not separately actionable as adverse actions in the retaliation context. As recently explained by a district court in Maryland, “though the denial of a request for accommodation may form the basis for a retaliation claim, such a denial does not by itself support a claim of retaliation.” Johnson v. Md. Transit Admin., No. CV CCB-19-2523, 2021 WL 809768, at *5 (D. Md. Mar. 2, 2021) (citation omitted). The court continued, quoting McClain v. Tenax Corp. In McClain, the court “explained that ‘the mere denial of a request for a reasonable accommodation cannot be an adverse employment action giving rise to a separate ADA retaliation claim' lest ‘every time an employee was denied a requested accommodation, he would be able to ‘double dip' by asserting both the ADA failure-to-accommodate and ADA retaliation claims.'” Johnson, 2021 WL 809768, at *5 (quoting McClain, 304 F.Supp.3d 1195, 1206-07 (S.D. Ala. 2018)).
Finally, to the extent Plaintiff is claiming the City's failure to provide her with copies of the actual air-quality reports at the time she first requested them was retaliatory, she has not explained how that was a materially adverse act. Accepting that she sought the reports, she has not explained how the failure of the City to give her the actual reports at the time she requested them was somehow an act that would have “dissuaded a reasonable worker from making a claim under the FMLA or the ADA.”
Plaintiff has not set out a prima facie retaliation claim under either the FMLA or the ADA as she has not set out evidence of a materially adverse action. Consideration of the parties' arguments regarding pretext is unnecessary. Summary judgment is appropriate.
D. State-law-gross negligence claim
The only remaining claim in Plaintiff's Complaint is for gross negligence. Compl. ¶¶ 85-89. Plaintiff avers the City “failed to exercise even slight care” in failing to provide a nonhazardous work environment, failing to remediate mold in that environment, and in failing to provide Plaintiff and others with “accurate information to make informed decisions about their health with their physicians.” Id. ¶ 88. Defendant seeks summary judgment as to this claim, arguing it is barred by the South Carolina Workers Compensation Act's (“SCWCA”) exclusivity provision and by the South Carolina Tort Claims Act (“SCTCA”). Further, Defendant argues Plaintiff's settlement of her Workers Compensation claim against the City operates to estop her from now pursuing a gross negligence claim. Finally, Defendant argues Plaintiff has presented no facts of a breach of any cognizable duty to her. Def. Mem. 31-34.
Should the District Judge adopt the above recommendation as to all of the federal causes of action, she could, in her discretion, decline to exercise supplemental jurisdiction as to this sole state-law-based claim. “The district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction. . . .” 28 U.S.C. § 1367(c)(3). The Fourth Circuit has recognized that “trial courts enjoy wide latitude in determining whether or not to retain jurisdiction over state claims when all federal claims have been extinguished.” Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir. 1995) (holding district court did not abuse its discretion in declining to retain jurisdiction over the state law claims). See also, e.g., United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726-27 (1966); Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 875 (4th Cir.1989). In determining whether to retain jurisdiction, courts consider “the convenience and fairness to the parties, existence of any underlying issues of federal policy, comity, and considerations of judicial economy.” Shanaghan, 58 F.3d at 110. Here, the undersigned recommends that the district judge decline to retain supplemental jurisdiction over Plaintiffs state law claim. There are no issues of federal policy underlying the remaining state law claims. In addition, comity favors remand since the remaining claims are quintessential state law questions regarding operation of state statutory schemes and state common-law interpretation. In United Mine Workers of America, 383 U.S. at 726, the Supreme Court cautioned that “[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a superfooted reading of applicable law. . . if the federal law claims are dismissed before trial . . . the state claims should be dismissed as well.” Because this case originally was brought in the Richland County Court of Common Pleas, remand of the gross negligence claim is appropriate.
V. Conclusion
For the reasons set forth above, the undersigned recommends Defendant's Motion for Summary Judgment, ECF No. 44, be granted as to Plaintiffs federal claims and the remaining state-law claim be remanded to state court.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”