Opinion
8:20-cv-01586-TMC-JDA
06-10-2021
Thomas B Summerell, Plaintiff, v. Clemson University, Defendant.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Defendant's motion for summary judgment. [Doc. 32.] Plaintiff alleges claims for discrimination and retaliation under the Americans with Disabilities Act (“ADA”). [Doc. 1-1 at 11-13.] 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.
Plaintiff commenced this action on December 12, 2019, in the Pickens County Court of Common Pleas. [Id. at 1-8.] Plaintiff filed an Amended Complaint in the state court on March 9, 2020. [Id. at 9-14.] Defendant removed the action on April 23, 2020. [Doc. 1.] On April 30, 2021, Defendant filed a motion for summary judgment. [Doc. 32.] Plaintiff filed a response in opposition on May 12, 2021 [Doc. 33], to which Defendant replied on May 28, 2021 [Doc. 36]. Accordingly, the motion for summary judgment is ripe for review.
BACKGROUND
Plaintiff's Amended Complaint alleges as follows.
Plaintiff was hired by Defendant in 2016 as a maintenance employee and his primary job duties related to landscape maintenance. [Doc. 1-1 at 10 ¶¶ 7-8.] Prior to his employment, Plaintiff had suffered severe facial trauma and other permanent injuries and was diagnosed with chronic severe pain, depression, and anxiety, along with other chronic medical conditions. [Id. ¶ 7.] Plaintiff notified Defendant of these conditions early during his time working for Defendant. [Id.] He was prescribed pain medication prior to his employment with Defendant and during his time working for Defendant. [Id.]
In approximately January 2019, Plaintiff's supervisor took Plaintiff to Defendant's office of human resources, alleging that Plaintiff “had been acting: not alert, inattentive, had slurred speech and cracked lips.” [Id. ¶ 10.] During that meeting, it was apparent that Plaintiff's supervisor assumed that Plaintiff had been taking illicit drugs. [Id.] Defendant suspended Plaintiff without pay, prepared a fitness-for-duty form, and instructed Plaintiff that he should have his most recent physician review and sign the form. [Id. ¶ 11.] Plaintiff's most recent physician, who was an orthopaedist stated that Plaintiff was physically able to perform his work but stated that he could not respond to the psychological assertions because that exceeded his area of expertise. [Id. ¶ 12.] Plaintiff sought to have others complete the form, including Defendant's in-house nurse practitioner, but none were willing and able to do it. [Id.] In approximately July 2019, with Plaintiff still not having found a medical professional who was willing and able to complete the form, Defendant terminated Plaintiff's employment. [Id. ¶ 15.]
On June 20, 2019, Plaintiff filed a Charge of Discrimination with the Equal Opportunity Employment Commission (“EEOC”) alleging disability discrimination based on his being required to have the fitness-for-duty form completed by a physician and his being placed on administrative leave in January 2019, and he subsequently received a notice of right to sue from the EEOC. [Id. at 9 ¶ 5; 32-7 at 41.] Following his termination, on November 15, 2019, Plaintiff filed another EEOC charge alleging that his termination was retaliatory, in violation of his rights under the ADA. [Doc. 32-7 at 44.]
Plaintiff subsequently filed this action. Plaintiff alleges that Defendant violated his rights under the ADA by requiring him to have a physician fill out a fitness-for-duty form, having him obtain a new pain management physician, suspending him, terminating him. [Doc. 1-1 at 11-13 ¶¶ 21-31.] Regarding the termination, Plaintiff alleges that it violated the ADA both because it was “due to use or prior use of prescribed medication required for Plaintiff's disability” and because it was in retaliation for filing a discrimination charge with the EEOC. [Id. at 12 ¶ 23; see also id. at 13 ¶ 30.] Plaintiff also alleges that the continuation of his suspension was in retaliation for his filing the charge. [Id. ¶ 30.] As relief, Plaintiff seeks backpay, reinstatement, compensatory and punitive damages, other injunctive relief, and court costs. [Id. at 13.]
Plaintiff's Amended Complaint also alleged a state law breach of contract claim. [Doc. 1-1 at 13-14 ¶¶ 32-36.] However, the parties subsequently stipulated to the dismissal with prejudice of that claim. [Doc. 14.]
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under 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. When 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 court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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 her pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant'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 granting 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.” Anderson, 477 U.S. at 248. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) 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
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, she must produce existence of a factual dispute on every element essential to her action that she bears the burden of adducing at a trial on the merits.
DISCUSSION
Defendant argues that it is entitled as a matter of law to immunity under the Eleventh Amendment as to Plaintiff's claims asserted under Title I of the ADA and that Defendant is entitled to have the ADA claims dismissed on that basis. [Docs. 32-1 at 9-11; 36 at 2-3.] The Court agrees.
In its reply memorandum, Defendant disputes that its requiring him to obtain the fitness-for-duty certification was a basis for Plaintiff's claim. [Doc. 36 at 2.] The Court concludes, however, that Plaintiff did allege such a violation. [Doc. 1-1 at 11 ¶ 21 (allegation in the section of the Amended Complaint alleging violation of the ADA that “Defendant Employer placed an impossible burden on Plaintiff in requiring him to obtain a physician to complete a general and multi-specialty fitness for duty form alleging disputed facts and symptoms and then, after using a Nurse Practitioner employed by Defendant, requiring Plaintiff to obtain a new pain management physician”).] On the issue of whether requiring the fitness-for-duty certification violated the ADA, Defendant makes only a conclusory argument asserting that Defendant is entitled to “ensure that its employees are safe” and citing to 42 U.S.C. § 12112(d)(4)(A) and (B)). [Doc. 36 at 2.] The Court notes that a more developed argument would be necessary to warrant the Court's consideration of that issue. See Clayton v. Nationwide Mut. Ins. Co., 260 F.Supp.3d 514, 521 (D.S.C. 2017) (“The court has no obligation to fashion arguments for a party or to further develop a party's argument when it is wholly conclusory, unexplained, and unadorned with citation to legal authority.”). Because the Court concludes that Defendant is entitled to summary judgment on this basis, it declines to address Defendant's alternative arguments.
“[A]n unconsenting State is immune from suits brought in federal courts by her own citizens.” Edelman v. Jordan, 415 U.S. 651, 663 (1974). This immunity applies as well to state agencies. Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997). “Therefore, absent abrogation of sovereign immunity or consent from [South Carolina, Plaintiff] cannot seek injunctive or monetary relief from” South Carolina. McCray v. Md. Dep't of Transp., 741 F.3d 480, 483 (4th Cir. 2014). Defendant is an arm of the State of South Carolina for Eleventh Amendment purposes. Martin v. Clemson Univ., 654 F.Supp.2d 410, 424 (D.S.C. 2009).
A claim asserted against a state agency “may survive the Eleventh Amendment bar in one of three recognized ways”: (1) “Congress may abrogate state Eleventh Amendment immunity”; (2) “a state may waive its immunity”; or (3) “a plaintiff may seek prospective relief against state officials acting in violation of federal law under the principles set forth in Ex Parte Young, ” 209 U.S. 123 (1908). Pickering v. State Police, 59 F.Supp.3d 742, 747 (E.D. Va. 2014). None of these circumstances applies here. First, “[s]overeign immunity has not been abrogated for . . . ADA Title I claims.” McCray, 741 F.3d at 483. Second, “South Carolina has not waived its Eleventh Amendment immunity for lawsuits in federal court.” Doe v. Coastal Carolina Univ., No. 4:18-cv-00268-RBH, 2019 WL 142299, at *7 (D.S.C. Jan. 9, 2019). And third, Plaintiff has not sought relief against any state official, but rather has named Defendant as the lone Defendant. See Pickering, 59 F.Supp.3d at 747.
A state does not waive its sovereign immunity by removing an action to federal court provided that the state had not already consented to being sued in its own state courts. Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019).
Plaintiff further argues that Defendant is not entitled to sovereign immunity with regard to a claim under section 504 of the Rehabilitation Act of 1973 (“the Rehabilitation Act”). [Doc. 33 at 10-12.] Plaintiff's Amended Complaint does not allege a violation of the Rehabilitation Act, however. Plaintiff requests, to the extent he is required to expressly allege a violation of the Rehabilitation Act in order to plead a Rehabilitation claim, that he be granted leave to amend his Amended Complaint. [Id. at 12.] However, this is not a proper motion, and no proposed amendment has been filed. Additionally, a proposed amendment would be untimely filed under the Court's Scheduling Order [Doc. 9 (providing a deadline of June 23, 2020, for motions to amend pleadings)] and Plaintiff has offered no cause to extend the applicable deadlines. See Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008) (“[A]fter the deadlines provided by a scheduling order have passed, the good cause standard must be satisfied to justify leave to amend the pleadings.”) Accordingly, to the extent that the Court construes this request as a motion to amend the Amended Complaint, the undersigned recommends that the motion be denied without prejudice. Plaintiff argues that pursuant to Ex Parte Young, 209 U.S. 123 (1908), sovereign immunity would not bar his recovery for injunctive relief or equitable remedies. [Doc. 33 at 12.] That is incorrect. Ex Parte Young permits injunctive relief from individual defendants who are state officials sued in their individual capacities. Ex Parte Young, 209 U.S. at 160. Plaintiff did not sue any individual state officials here.
Accordingly, the Court concludes that Defendant is entitled to immunity as to Plaintiff's claims and recommends that Defendant's motion for summary judgment be granted.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendant's motion for summary judgment [Doc. 32] be GRANTED.
IT IS SO RECOMMENDED.