Opinion
C. A. 3:21-3489-SAL-PJG
11-03-2022
Michael D. Towers, Plaintiff, v. Lexington County Fire Service; Lexington County, Defendants.
REPORT AND RECOMMENDATION
PAIGE J. GOSSETT, UNITED STATES MAGISTRATE JUDGE
Plaintiff Michael D. Towers, a self-represented litigant, filed this employment action pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq. Plaintiff files this action in forma pauperis under 28 U.S.C. § 1915. 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 on Defendant Lexington County's partial motion for summary judgment. (ECF No. 63.) Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Towers of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Lexington County's motion. (ECF No. 64.) Towers filed a response in opposition to the motion (ECF No. 78), and Lexington County filed a reply (ECF No. 83). Having reviewed the record presented and the applicable law, the court finds Lexington County's motion should be granted in part.
Lexington County asserts that Lexington County Fire Service is a component of Lexington County and not a party amenable to suit. (Def.'s Answer, ECF No. 27 at 1.)
BACKGROUND
The following allegations from Towers's Complaint are taken as true for purposes of resolving Lexington County's motion to dismiss. Towers, a former firefighter with Lexington County, brings this action pursuant to the ADA asserting that Lexington County discriminated against him because he is diabetic. Towers was hired by Lexington County in 2015. Towers alleges that he was instructed to follow his supervisors' orders on how to manage his diabetes rather than the instructions of his endocrinologist and primary physician or his own personal experience of living with diabetes. Towers alleges that on August 27, 2015, his supervisors tried to force him to have a hypoglycemic incident by running him through drills alone, suggesting that he should transfer duty stations and work as a dispatcher. However, Towers maintained his blood sugar through the drill and was returned to his duty station. Towers also alleges that headquarters tried to fault him for an accident with an engine truck, even though he was not driving the truck, because Towers is diabetic. Towers further alleges that the chief of the fire service told a paramedic that Towers was a diabetic who could not control his blood sugar.
At some point, Towers suffered an ankle injury and was removed from his shift and battalion. Towers was placed with an engineer, John Thomas, who told Towers that he should not be a firefighter because he is diabetic. Towers reported this comment to his captain and battalion chief in an effort to prevent such incidents from happening again. Finally, Towers alleges that Lexington County does not recognize that he was injured in the line of duty, and therefore, Towers has been ineligible for health insurance for members who were forced to retire.
On September 26, 2018, Towers was admitted to the hospital when an incident during training caused his diabetes to flare up. Ultimately, Towers was not cleared to return to work as a firefighter because of this flare up. In November 2018, Towers applied to work as a dispatcher as a reasonable accommodation for his disability. On January 13, 2019, Towers was discharged because his diabetes prevented him from returning to work. Towers claims that around February 2019, his application to work as a dispatcher was “withdrawn” by Lexington County. (Compl. ECF No. 1-2 at 5.)
Towers filed a charge of discrimination with the South Carolina Human Affairs Commission on September 25, 2019. Plaintiff charged that he was discriminated against based on his disability and specifically cited to the training that caused a diabetic episode as well as the denial of his application to work as a dispatcher. Towers was issued a notice of right to sue in July 2021, and on October 25, 2021, Towers filed this employment action pursuant to the ADA. Following initial review pursuant to 28 U.S.C. § 1915, by order dated January 25, 2022, the court construed the Complaint as asserting only claims of disparate treatment and failure to accommodate to pursuant to the ADA. (ECF No. 22.) The court also directed counsel for the defendants to file a certification that they read the court's construction of the claims and ordered that any party who disagreed with the court's construction had seven days to file an appropriate motion. (ECF No. 30.) Counsel for the defendants failed to comply with the court's order and did not file the certification. No party filed a motion indicating disagreement with the court's construction of the pro se claims following initial review.
On July 9, 2022, Lexington County filed the instant motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 63.) Lexington County argues that some of Towers's ADA claims are time barred or outside the scope of his charge of discrimination. Lexington County states it
seeks an order from the court that limits Plaintiff's allegations of disability discrimination to the “failure to hire” and “termination” allegations that are referenced in his administrative charge of discrimination, and that occurred on or after November 29, 2018. The effect of this requested order would be the dismissal
of Plaintiff's allegations of disability discrimination that exceed the scope of his administrative discrimination charge, and that are time barred.(Def.'s Mot., ECF No. 65 at 1-2.)
DISCUSSION
Lexington County argues that because Towers filed his charge of discrimination on September 25, 2019, any claims that arose before November 29, 2018 are untimely. Therefore, Lexington County argues, the only claims that are timely in this matter are Towers's “failure to hire” and “termination” claims pursuant to the ADA.
However, as explained above, the court construed Towers's Complaint as asserting only ADA claims for disparate treatment and failure to accommodate. The disparate treatment claim was construed based on Towers's allegations that he was treated differently in that, while he was working, supervisors and other staff made comments about his diabetes, tried to trigger a hypoglycemic episode, and attempted to fault him for a car accident because he is diabetic. The failure to accommodate claim was construed because Towers alleged that he sought a transfer to work as a dispatcher when he was unable to return to work as a firefighter. Although Lexington County asserts that Towers raises a failure to hire claim, it appears to refer to Towers's claim that Lexington County did not accommodate him by allowing him to work as a dispatcher. To the extent Towers meant to raise a failure to hire claim based on different allegations (Towers does not address the discrepancy in his response to Lexington County's motion), such a claim is not properly before the court. Lexington County also asserts that Towers raises a discriminatory discharge claim based on his termination, but the court did not construe such a claim because Towers expressly alleges that he could not return to his firefighting position because of his disability. See Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001) (providing that to establish a discriminatory discharge claim under the ADA, the plaintiff must show that he could perform the job at a level that met his employer's legitimate expectations). More importantly, Towers did not file any motion following the court's construction of his claims to indicate that he intended to raise a discriminatory discharge claim. Therefore, a discriminatory discharge claim is not properly before the court. Accordingly, the court will address Lexington County's motion in light of the court's construction of Towers's claims.
The ADA incorporates the enforcement procedures of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., including the requirement in 42 U.S.C. § 12117(a) that the plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before bringing his claim to federal court. Sydnor v. Fairfax Cnty., Va., 681 F.3d 591, 593 (4th Cir. 2012). Here, it is undisputed that a claimant has 300 days after the allegedly unlawful employment practice to submit a charge of discrimination. See 42 U.S.C.A. § 2000e-5(e)(1) (extending the general 180-day time period to 300 days where the charge was filed with a state deferral agency); see, e.g., Talent v. Comm'r of Pub. Works, C/A No. 2:12-0622-DCN, 2014 WL 971747, at *3 (D.S.C. Mar. 11, 2014) (citing Brown v. Berkeley Cnty. Sch. Dist., 339 F.Supp.2d 715, 722 n.3 (D.S.C. 2004)).
Towers does not provide precise dates for all of his allegations, but he claims that he left work in September 2018 due to an injury and he was not able to return. Therefore, as explained by Lexington County in its motion, (Def.'s Mot., ECF No. 63 at 9), Towers's complaints about his treatment by his supervisors and other staff must have occurred before November 2018, and those are the only allegations that appear to support his disparate treatment claim. Therefore, Towers's disparate treatment claim is untimely because the allegations that form the basis of that claim must have occurred more than 300 days prior to Towers's filing a charge of discrimination. Consequently, Towers's disparate treatment claim pursuant to the ADA must be dismissed.
As to Towers's failure to accommodate claim, Towers does not clearly explain when he was denied the accommodation, but he indicates in the charge of discrimination that he applied to work in dispatch as a reasonable accommodation in November 2018 and his application was “withdrawn” in February 2019. (Compl., ECF No. 1-2 at 5.) It is unclear what Towers means by his application being “withdrawn,” but on a motion to dismiss, the court must view the facts in the light most favorable to the plaintiff. Therefore, the court assumes that Towers means that he was denied the accommodation in February 2019. Consequently, Towers's failure to accommodate claim appears to be timely when viewing the facts in the light most favorable to Towers.
Assuming Lexington County believes Towers's “failure to hire” claim is based on the same allegations, Lexington County concedes that the claim is timely for the purposes of this motion (Def 's Mot ECF No 63 at 10)
RECOMMENDATION
Based on the foregoing, the court recommends that Lexington County's motion be granted in part and Towers's ADA disparate treatment claim be dismissed. If this recommendation is adopted, the sole remaining claim in this matter will be Towers's ADA failure to accommodate claim.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.' ” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).