U.S. Equal Employment Opportunity Commission v. Optimal Solutions & Technologies (OST, Inc.)

Filing 50

MEMORANDUM OPINION. Signed by Judge Paula Xinis on 11/19/2019. (jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

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Plaintiff,
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v.

Civil Action No. 8:17-cv-02861-PX
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OPTIMAL SOLUTIONS &
TECHNOLOGIES, INC.,
Defendant.

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MEMORANDUM OPINION

This disability discrimination case concerns the termination of Michael Tyson from his
employment at Defendant Optimal Solutions & Technologies, Inc. (OST). Pending before the
Court is Defendant’s motion for summary judgment (ECF No. 41), Defendant’s motion to seal
certain exhibits (ECF No. 40), Plaintiff Equal Employment Opportunity Commission’s (EEOC)
motion to strike the declaration of Samia Sikander (ECF No. 43) and Plaintiff’s cross-motion for
summary judgment (ECF No. 42). The motions are fully briefed and no hearing is necessary.
See Loc. R. 105.6. For the following reasons, the Court grants OST’s motion to seal and denies
the EEOC’s motion to strike Samia Sikander as moot.1 As for the summary judgment motions,
the Court grants in part and denies in part the EEOC’s partial motion and denies OST’s motion.

The Court grants the consent motion to seal those exhibits which include Tyson’s sensitive medical information.
See Rock v. McHugh, 819 F. Supp. 2d 456, 475–76 (D. Md. 2011) (sealing certain sensitive medical information,
including plaintiff’s medical condition and treatment). As to the EEOC’s motion to strike Samia Sikander’s
declaration (ECF No. 43), although it appears Sikander had not been previously disclosed as a witness, even if the
Court had considered her affidavit, it would not change the outcome of the pending cross-motions for summary
judgment. Thus, the Court denies the motion to strike as moot. The EEOC is free to move in limine to preclude
OST from calling Sikander as a witness at trial.
1

I. Background
The following facts are undisputed. OST is a technology, engineering, and services
contractor that serves governmental agencies and the private sector. ECF No. 41 at 8. OST is
headquartered in McLean, Virginia, but has several other offices, including one in Hyattsville,
Maryland. Id. At the Hyattsville location, OST serviced several contracts with the Federal
Emergency Management Administration (“FEMA”). Id. at 9. An infrastructure group in the
office helped service those contracts and included a help desk, systems engineers, SharePoint
administrators, and other employees. Id.; ECF No. 42-3 at 4.
SharePoint is a database that allows insurance adjusters working for FEMA to review
documents in claims files. ECF No. 42-5 at 6. SharePoint administrators at OST managed two
SharePoint servers for FEMA and were responsible for backing up the SharePoint servers and
providing users access to sites within SharePoint. ECF No. 4-24 at 14. Mike Adibpour managed
this infrastructure group, which fell under a larger business unit managed by Robert Wilkison.
ECF No. 41-25 at 5–6; ECF No. 42-3 at 4. Adibpour directly supervised William Wang, a senior
SharePoint administrator, Eric Zarnosky, a systems engineer, Samia Sikander, who worked the
help desk, and Tyson. ECF No. 42-3 at 4–5; ECF No. 42-5 at 5; ECF No. 41-18 at 2–3.
Tyson applied to OST on June 3, 2016, having spent years working in the IT field and
with SharePoint. ECF No. 41-4 at 7; ECF No. 42-2 at 17–21. Days later, OST hired Tyson for
the position of senior SharePoint Administrator. ECF No. 41-6 at 2; ECF No. 42-2 at 6.
Adibpour was Tyson’s direct supervisor. ECF No. 42-3 at 4.
Tyson, like all new OST employees, was subject to a six month probationary period.
ECF No. 41-5 at 16. The probationary period is designed to “see if the employee is a good fit
with the company…[and] the role” and whether he is “able to perform the job duties.” ECF No.

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41-26 at 16–7. Once an employee completes the probationary period, he is subject to a written
progressive discipline policy to address employment related shortcomings. The policy provides
for graduated responses to employment related issues, to include a verbal and written warning
prior to termination. ECF No. 42-6 at 18; ECF No. 41-5 at 35–37.
Tyson came to his new position at OST having struggled for six years with eye problems
that included double vision, an inability to adduct his right eye (inability to turn his right eye
outward), ptosis (drooping eyelid), and exophthalmos (protruding eye). ECF No. 42-4 at 3–5, 9.
Just before Tyson started his new job, he had been diagnosed with a meningioma or a benign
tumor located in the membranes that surround the brain and spinal cord. Id. at 9, 13, 15.
Tyson’s treating neurosurgeon, Dr. Howard Eisenberg, arrived at this diagnosis after reviewing
the results of Tyson’s MR scan and concluded that the tumor, which pressed on Tyson’s optic
nerve, most likely was causing the above-described symptoms. Id. at 6–7, 15; see also ECF No.
40-3. Dr. Eisenberg noted that the problem was “progressive” and referred Tyson to Dr. Robert
Malyapa to begin proton beam radiation therapy, a novel and advanced treatment designed to
shrink certain tumors. ECF No. 42-4 at 16. Treatment was set to begin around October 2016.
ECF No. 42-2 at 14–15.
Shortly after Tyson began at OST, he shared with Adibpour that he had a brain tumor.
ECF No. 41-13 at 2; ECF No. 41-15 at 5. According to Tyson, the two men discussed their
respective health conditions. ECF No. 41-23 at 35–36. Tyson also told Adibpour that he would
receive treatment on his own time so he would not need to miss work, and that the targeted
radiation would not have any side effects. Id.; ECF No. 41-15 at 5. Although Adibpour denies
that this conversation ever took place, ECF No. 41-24 at 27–28, Tyson’s coworker, Eric
Zarnosky testified that he learned about Tyson’s brain tumor from Adibpour and that on many

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occasions Adibpour expressed to Zarnosky concern about whether Tyson could do his job in
light of his health condition. ECF No. 42-5 at 18, 20, 22; see also ECF No. 42-7 ¶¶ 16, 18 (OST
coworker Timothy Connor’s sworn declaration as to having learned of Tyson’s brain tumor from
Adibpour and of his concern that Tyson would not be able to perform his job adequately).
During the time Tyson worked at OST, he and Wang were at odds. ECF No. 41-18 ¶ 11;
ECF No. 41-24 at 20–21. Although Wang had worked at OST far longer than Tyson, Wang had
become widely known for his abrasive and combative demeanor. See ECF No. 42-5 at 13–14
(Zarnosky describing incident in which Adibpour stated Wang needed to be fired); id. at 15
(“[e]verybody in that office had an issue with [Wang] at some point. [Wang] had some type of
confrontation with almost every person he interacted with);2 id. at 31; ECF No. 41-27 at 4 (OST
employee Stephanie Ankrah describing that Wang behaved disrespectfully and yelled at her,
which she reported to Adibpour); id. at 9 (Ankrah describing Wang having lunged at another
female employee); ECF No. 42-7 ¶ 9 (Connor describing Wang as “often combative and
challenged people over obscure technical matters”). Others, including Zarnosky, also expressed
concern that Wang could not perform the necessary job requirements. ECF No. 42-5 at 14, 16–
17; ECF No. 42-7 ¶ 8. Adibpour, prior to learning of Tyson’s brain tumor, had even discussed
with Zarnosky his intent to fire Wang once Tyson familiarized himself with the FEMA
SharePoint system. ECF No. 42-5 at 13, 15, 18, 31; ECF No. 41-22 at 4.
On September 14, 2016, Tyson, Wang and Zarnosky engaged in a heated email
exchange, culminating with Tyson emailing his two coworkers to “stop this nonsense and just
LOG ON TO THE SERVER!!”. ECF No. 42-6 at 26–29. This exchange took place on the
FEMA email system, and thus was accessible to OST’s client. Id.

After Tyson’s termination, Wang received two additional warnings for his unprofessional behavior exhibited with
OST clients. ECF No. 41-21 at 17–19.
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On September 27, 2016, Adibpour issued Wang and Zarnosky verbal warnings for the
email exchange. ECF No. 47-9 at 2–3. Tyson, in contrast, was terminated. ECF No. 41-13.
ECF No. 41-21 at 8–10. Mary Homer, OST’s head of Human Capital Management, explained
that Wang received only a warning because he was no longer a probationary employee, whereas
Tyson, with only three months at OST, was fired because he was still on probation. ECF No. 4121 at 8, 14. However, Homer also acknowledged that all OST personnel are at-will employees,
subject to termination at any time. Id. at 19–20.
Tyson filed a formal charge of disability discrimination with the EEOC, and the agency
elected to pursue the claim against OST. ECF No. 41-13. In the Complaint filed before this
Court, the EEOC alleges that OST discriminated against Tyson when it fired him on account of
an actual and perceived disability, in violation of Section 102(a) of Title I of the ADA, 42 U.S.C.
§ 12112(a). ECF No. 1 ¶ 22.
II. Standard of Review
Summary judgment is appropriate when the Court, viewing the evidence in the light most
favorable to the non-moving party, finds no genuine disputed issue of material fact, entitling the
movant to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008). “A party opposing
a properly supported motion for summary judgment ‘may not rest upon the mere allegations or
denials of [his] pleadings,’ but rather must ‘set forth specific facts showing that there is a
genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522
(4th Cir. 2003) (quoting former Fed. R. Civ. P. 56(e)). “A mere scintilla of proof . . . will not
suffice to prevent summary judgment.” Peters v. Jenney, 327 F.3d 307, 314 (4th Cir. 2003).
Importantly, “a court should not grant summary judgment ‘unless the entire record shows a right

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to judgment with such clarity as to leave no room for controversy and establishes affirmatively
that the adverse party cannot prevail under any circumstances.’” Campbell v. Hewitt, Coleman
& Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994) (quoting Phoenix Sav. & Loan, Inc. v. Aetna
Casualty & Sur. Co., 381 F.2d 245, 249 (4th Cir. 1967)). Where the party bearing the burden of
proving a claim or defense “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden of proof at
trial,” summary judgment against that party is likewise warranted. Celotex, 477 U.S. at 322.
“Where, as here, cross motions for summary judgment are filed, a court must ‘evaluate
each party’s motion on its own merits, taking care [in each instance] to draw all reasonable
inferences against the party whose motion is under consideration.’” Snyder ex rel. Snyder v.
Montgomery Cty. Pub. Sch., No. DKC 2008-1757, 2009 WL 3246579, at *5 (D. Md. Sept. 29,
2009) (quoting Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir.
1987)).
III. Analysis
The parties cross move for summary judgment on whether Tyson is protected under the
ADA. The parties also vigorously dispute whether OST fired Tyson because of his brain tumor
or because of poor job performance. The Court first discusses the pertinent statutory and
regulatory framework, and then turns to the parties’ cross motions.
A. The ADA and ADAAA
The ADA forbids employers from intentionally discriminating against persons with
disabilities. 42 U.S.C. § 12112(a)-(b). See Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53
F.3d 55, 59 (4th Cir. 1995), as amended (June 9, 1995), as amended (Mar. 14, 2008).
Discrimination claims brought pursuant to the ADA are subject to the McDonnell Douglas

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burden-shifting framework. Id. at 58. Under this framework, a plaintiff must first establish a
prima facie case of disability discrimination with evidence demonstrating that he was (1) a
qualified individual with a disability; (2) who had been discharged; (3) while fulfilling his
employer’s legitimate expectations at the time of discharge; and (4) the circumstances of his
discharge raise a reasonable inference of unlawful discrimination. Reynolds v. Am. Nat. Red
Cross, 701 F.3d 143, 150 (4th Cir. 2012); see also Ennis, 53 F.3d at 58 (citing Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253); Haulbrook v. Michelin N. Am., 252 F.3d 696,
702 (4th Cir. 2001). If the plaintiff makes a prima facie case, the burden then shifts to the
defendant to produce evidence that the defendant acted with a legitimate, nondiscriminatory
reason. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 575 (4th Cir. 2015). If the
defendant meets its burden of production, the burden shifts back to the plaintiff to show that the
proffered legitimate reason was mere pretext. Id.
The ADA expressly states that “[t]he term ‘disability’ means, with respect to an
individual—
(A) a physical or mental impairment that substantially limits one or more of the major life
activities of an individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.”
42 U.S.C. § 12102(1).
In 2008, Congress passed the ADA Amendments Act of 2008 (ADAAA) with the
purpose of “reinstating a broad scope of protection . . . under the ADA.” Pub. L. No. 110–325 §
2(b)(1), 122 Stat. 3553–3554 (2008). In line with this enhanced scope, the ADAAA broadened
the definition of “major life activities” to include, but not be limited to, “caring for oneself,

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performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,
speaking, breathing, learning, reading, concentrating, thinking, communicating, and working” as
well as the “operation of a major bodily function, including but not limited to, functions of the
immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.” Id. (emphasis added). Importantly, the
statute expressly directs that the definition of disability “shall be construed in favor of broad
coverage of individuals under this chapter, to the maximum extent permitted by the terms of this
chapter.” 42 U.S.C. § 12102(4)(A).
B. Tyson’s Status as an Individual with a Disability
The EEOC argues that Tyson enjoys ADA protection because his brain tumor
substantially limits normal cell growth. ECF No. 42 at 14–18. Alternatively, the EEOC
maintains that Tyson is covered because his employer perceived him to have a disability on
account of his brain tumor. Id. at 18–19. OST maintains the contrary. ECF No. 41 at 19–25.
The Court addresses each basis separately.
1. Whether Tyson’s Meningioma Constitutes a Disability
The undisputed record, according to Tyson’s treating neurosurgeon, Dr. Eisenberg, shows
that Tyson’s symptoms are the result of a meningioma, or a “tumor of the coverings of the brain
. . . or in the intracranial space.” ECF No. 42-4 at 3. Dr. Eisenberg explains that this tumor,
although benign, is caused by abnormal division of cells in that the cell division is “unregulated
or poorly regulated.” Id. at 6. Dr. Eisenberg opines, unrebutted, that as the meningioma has
grown due to the abnormal division of cells, it has led to Tyson’s double vision and the other
structural changes to his eye. Id. at 7. Specifically, the tumor has pressed against Tyson’s right
optic nerve. Id. at 13, 15.

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Based on this evidence, the Court cannot discern any reasonable dispute of material fact
as to whether Tyson qualifies as disabled. The ADA makes plain that a condition which
substantially affects normal cell growth constitutes an impairment of a major life activity. See
Norton v. Assisted Living Concepts Inc., 786 F. Supp. 2d 1173, 1185 (E.D. Tex. 2011) (“The
Act now clarifies that as long as an impairment substantially limits one major life activity, such
as normal cell growth, it need not limit other major life activities, such as working, in order to be
considered a disability.”). Tyson’s abnormal cell growth is serious enough to have produced a
meningioma inflicting obvious and transparent physical limitations such as double vision,
limitations on eye movement, and other outward manifestations of the tumor. Because Tyson’s
meningioma arose from cell division so abnormal and unregulated that it impacted surrounding
cells and nerves, and led to obvious physical symptoms, it constitutes a substantial limitation of
the major life activity of normal cell growth.
Although few courts have been called to decide whether benign tumors rise to the level of
a disability, one provides special guidance here. In Coker v. Enhanced Senior Living, Inc., the
court determined that the plaintiff’s non-cancerous breast disease constituted a disability because
it substantially limited normal cell growth. 897 F. Supp. 2d 1366, 1372, 1376 (N.D. Ga. 2012).
Similar to this case, the court was called to decide whether noncancerous masses in plaintiff’s
breasts that were “the result of abnormal cell growth” qualified as a disability. Id. at 1369, 1376.
Although the record did not reflect plaintiff as suffering from any particular symptoms, the court
concluded as a matter of law that the plaintiff’s “major life activity” of “normal cell growth,”
along with endocrine and reproductive functioning, had been substantially impaired, and so
plaintiff was disabled under the ADA. Id. at 1375–76. The court emphasized that its decision

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comports with the ADAAA’s own directive that “the term ‘disability’ ‘be construed in favor of
broad coverage.’” Id. at 1375 (quoting 42 U.S.C. § 12102(4)(A).
Similarly, the unrebutted medical evidence demonstrates that Tyson’s meningioma is the
product of “abnormal” or “unregulated” cell division. ECF No. 42-4 at 6. Further, on this
record, Tyson’s tumor is serious enough to have caused objectively identifiable vision and ocular
impediments. Id. at 6–7. It is beyond dispute, therefore, that Tyson suffers from a substantial
limitation on his normal cell growth.
OST mounts several challenges to this determination, none of which are availing. First,
OST contends that Tyson’s own belief that he is not disabled should end the analysis. ECF No.
41 at 27. OST misconstrues the record, because it is Tyson’s own self-described symptoms of
double vision and inability to move his eye properly that led him to obtain medical treatment in
the first instance. ECF No. 42-4 at 3, 9, 15. Thus, Tyson corroborates, rather than undermines,
that his cell growth was sufficiently limited such that his body produced a meningioma of size
and placement that has caused his ocular symptoms. That Tyson displays a chin-up attitude as
exemplified by his scheduling treatment after work hours or continuing to teach an exercise
class, does not generate a genuine issue of disputed fact as to whether Tyson is disabled under
the ADA.
OST next contends the Court should treat the ADA’s regulations referencing cancer as
some limiting principle to deny Tyson protected status. ECF No. 47 at 4. To hold otherwise,
says OST, would mean any abnormal cell growth, no matter how minor, would trigger ADA
protection. Id. The Court does not agree with OST’s floodgates contention.
29 C.F.R. § 1630.2(j)(3)(iii) points to cancer as one example of abnormal cell growth
which at a minimum will constitute a disability. It states:

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For example, applying the principles set forth in paragraphs (j)(1)(i) through (ix) of this
section, it should easily be concluded that the following types of impairments will, at a
minimum, substantially limit the major life activities indicated . . . cancer substantially
limits normal cell growth.
Id. (emphasis added).
The regulation, therefore, does not confine substantial limitation on normal cell growth
only to cancer. To read the regulation as restrictively as OST suggests would not only
contravene the regulation’s plain language but would also be at odds with the ADAAA’s
directive to construe the definition of disability “in favor of broad coverage.” 42 U.S.C.A. §
12102.
More to the point, Tyson’s cell growth is hardly commonplace; it is so abnormal that it
caused Tyson significant eye problems. In this regard, granting summary judgment in this case
simply does not risk that every kind of abnormal cell division, no matter how small, will trigger
coverage under the ADA.
Lastly, OST contends that Dr. Eisenberg’s own testimony underscores the difficulties in
concluding as a matter of law that Tyson’s meningioma qualifies as a disability under the ADA.
Specifically, OST notes that Dr. Eisenberg essentially retracted the portion of his sworn
declaration stating that “meningioma substantially limits the major bodily function of normal cell
growth because it is an abnormal growth of the cells of the meninges.” ECF No. 41-19. At
deposition, Dr. Eisenberg candidly admitted that he did not remember “what he meant by [that]
sentence” and that “reading it now, [the sentence] doesn’t make sense to me.” ECF No. 41-20 at
13–14. Read most favorably to OST, the Court must disregard this statement in Dr. Eisenberg’s
declaration. But this was not the only evidence on which the EEOC relies. Rather, Dr.
Eisenberg quite clearly testified that Tyson’s meningioma, which compromised Tyson’s vision
and functioning in his right eye, was the result of “abnormal” or “unregulated or poorly
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regulated” cell division. ECF No. 42-4 at 6–7. OST offers no medical evidence to the contrary.
Accordingly, no reasonable factfinder could disagree that Tyson’s cell growth was substantially
limited, and thus constitutes a disability under the ADA.
2. “Regarded” as having a disability
The EEOC additionally argues summary judgment is proper in Tyson’s favor as to
whether he was “regarded as having a disability.” ECF No. 42 at 18–19. An individual is
regarded as being disabled if he is perceived, albeit erroneously, as having an impairment that
substantially limits one or more of his major life activities. 42 U.S.C.A. § 12102(3). Put simply,
even if an individual is not in fact disabled, if his employer believes otherwise, then the
individual is protected against discrimination on account of the employer’s mistaken
belief. Young v. United Parcel Serv., Inc., 784 F.3d 192, 199 (4th Cir. 2015); Coursey v. Univ.
of Maryland E. Shore, No. CCB-11-1957, 2013 WL 1833019, at *4 (D. Md. Apr. 30,
2013), aff’d, 577 F. App’x 167 (4th Cir. 2014). However, an employer’s awareness of an
employee’s impairment, without more, is insufficient to demonstrate that the employee was
regarded as disabled. Haulbrook, 252 F.3d at 703.
Because the Court has already found as a matter of law that Tyson is disabled, it need not
strictly reach this question. However, as discussed below, the Court denies summary judgment
on whether Tyson was terminated on account of his disability. This matter, therefore, will
proceed to trial. Thus, to the extent that Tyson wishes to litigate whether he is alternatively
covered under the ADA as a person regarded as disabled, the Court will reach this question here.
The Court denies summary judgment because a genuine dispute of fact exists as to
whether Adibpour knew of Tyson’s condition before Tyson’s termination. Compare ECF Nos.
41-27 at 5; 42-5 at 18; 42-7 at 3; 42-2 at 9–10 (Ankrah, Zarnosky, Connor, and Tyson testifying

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that Adibpour knew of the tumor prior to termination) with ECF Nos. 41-24 at 24–26; 41-26 at
22–23 (Adibpour and Human Resources employee Sarah Tran testifying that they did not know
about the medical condition). Although Adibpour denies any such knowledge, the record
demonstrates otherwise. Zarnosky recounted in detail how Adibpour disclosed to him that Tyson
had a brain tumor. ECF No. 42-5 at 18, 22. Tyson similarly testified that before he was fired,
Zarnosky told Tyson that he learned of Tyson’s tumor from Adibpour. ECF No. 42-2 at 11.
What is more, Zarnosky vividly recalls Adibpour questioning whether Tyson could do his
job because of the tumor. ECF No. 42-5 at 18, 20, 22. In the same conversation when the two
men discussed Tyson’s tumor, Adibpour told Zarnosky he wondered whether his original plan to
replace Wang with Tyson could now come to fruition. Id. at 18. This conversation provides
powerful evidence from which a factfinder could conclude that Adibpour regarded Tyson as
disabled and fired Tyson as a result. It will be left to the trier of fact to determine whether to
believe Adibpour on the one hand or Zarnosky and Tyson on the other.
C. Terminated on Account of a Disability
Defendant lastly urges that the Court grant summary judgment in its favor because no
evidence exists that the decisionmakers who fired Tyson knew about his tumor at the time. ECF
No. 41 at 27. As to the third element of the prima facie case, causation, Tyson must prove that
his disability (or OST’s regarding him as disabled) was the “but-for” cause of his firing. Gentry
v. E. W. Partners Club Mgmt. Co. Inc., 816 F.3d 228, 235 (4th Cir. 2016). Viewing the record
most favorably to Tyson, summary judgment as to causation must be denied.
The record evidence viewed most favorably to the Plaintiff demonstrates that Adibpour
played a significant role in firing Tyson. ECF No. 41-24 at 4 (Adibpour acknowledging his role
in deciding whether to fire Tyson); ECF No. 41-25 at 10 (Wilkison noting that his actions were

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based on Adibpour’s recommendation as he himself did not work with Tyson); ECF No. 41-21 at
8. Further, Adibpour knew about Tyson’s tumor, see ECF No. 42-2 at 9–10; ECF No. 41-27 at
5; ECF No. 42-5 at 18; ECF No. 42-7 at 3, and expressed concern that Tyson would not be able
to get his job done as a result. ECF No. 42-7 at 3; ECF No. 42-5 at 18, 20–21. Tyson was also
fired within the month after Adibpour found out about the tumor and just weeks before the start
of Tyson’s treatment. ECF No. 47-13; ECF No. 42-4 at 15; ECF No. 42-5 at 29–30; ECF No.
41-15 at 4. Such close temporal proximity weighs in favor of finding a genuine dispute as to
causation. See Haulbrook, 252 F.3d 696, 706 (4th Cir. 2001) (finding that temporal proximity
can create a genuine dispute to causation); Jacobs, 780 F.3d at 575 (same). OST’s motion is
denied on these grounds.
D. Pretext
Similarly, OST’s motion for summary judgment must be denied as to whether its
legitimate, nondiscriminatory reasons for terminating Tyson were pretextual. Where an
employer has generated some evidence of a legitimate, non-discriminatory reason for terminating
an employee, the employee then must show that such justifications, even if true, amount to post
hoc rationalizations invented for purposes of litigation. Dennis v. Columbia Colleton Med. Ctr.,
Inc., 290 F.3d 639, 647 (4th Cir. 2002). “Contradictions between an employer’s proffered
explanation and the contemporaneous statements of the employer are convincing evidence of
pretext.” E.E.O.C. v. Town & Country Toyota, Inc., 7 F.App’x 226, 233 (4th Cir. 2001)
Although OST has generated evidence that Tyson was viewed by some as lacking
necessary technical skills, ECF No. 41-24 at 3; ECF No. 41-21 at 7–9, and that he behaved
poorly as to the September 14, 2016 email exchange, ECF No. 41-21 at 10, a reasonable
factfinder could also conclude the contrary. Zarnosky, for example, testified clearly that Tyson

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could do the job well. ECF No. 41-22 at 13 (Zarnoksy sharing that Tyson “was responsive to
users,” “would actually go to the user’s desk,” and “would educate the user”). See also ECF No.
42-7 at 2 (Connor declaring that Tyson was pleasant, professional, and easy to worth with); ECF
No. 41-27 at 3 (Ankrah noting that Tyson was “easy to work with”); ECF No. 42-2 at 7–8
(Tyson testifying that Adibpour gave him only positive feedback on performance). Moreover,
no contemporaneous documentation supports that Tyson could not handle the technical aspects
of his position. Cf. Country Toyota, 7 F.App’x at 233 (reversing grant of summary judgment in
favor of defendant where there was “no evidence contemporary with [plaintiff’s] employment to
show that he really did lack adequate sales skills and required excessive amounts of assistance
from sales managers” and noting that “the short duration of [plaintiff’s] employment does not
explain why he was never given verbal warnings or told upon his termination that his
performance was substandard.”). Finally, Tyson’s prior experience in IT and Sharepoint
undermines OST’s contention that he struggled in his new role. See ECF No. 42-2 at 17–21.
As for the September 14 email, a factfinder is free to reject OST’s contention that Tyson
was fired simply because he was on probation at the time. All OST personnel were at-will
employees. ECF No. 41-21 at 19–20. Thus, OST could terminate any employee for cause,
including Wang and Zarnosky. Id. Accordingly, a reasonable factfinder could conclude that
OST’s failure to act consistently among employees undermines OST’s proffered reasons for
terminating Tyson. See King v. Rumsfeld, 328 F.3d 145, 151–52 (4th Cir. 2003) (finding that a
plaintiff may demonstrate pretext by showing that other similarly situated individuals have
committed the same violations but have not suffered the same consequences). Tyson has also
generated sufficient evidence that Wang, who held the same position as Tyson (ECF No. 42-3 at
5–6; ECF No. 41-26 at 14), had a history of bad behavior that would have put him in serious

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jeopardy of termination even under the progressive discipline policy. See, e.g., ECF No. 42-15
at 12; ECF No. 42-3 at 7–9; ECF No. 42-6 at 20–22. When viewing the evidence most favorably
to Tyson, a finder of fact could conclude that OST’s proffered reasons were indeed pretextual.
Summary judgment in favor of OST must be denied.
E. Punitive Damages
Punitive damages are recoverable if a plaintiff can demonstrate that his employer
“engaged in a discriminatory practice or discriminatory practices with malice or with reckless
indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. §
1981a(b)(1). “The terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge
that it may be acting in violation of federal law, not its awareness that it is engaging in
discrimination.” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 535 (1999).
OST argues that its ADA Policy in its Employee Handbook, coupled with Homer’s
attestation that OST has consistently adhered to its ADA policy, provides uncontroverted
evidence that OST did not exhibit malice or reckless indifference in its noncompliance. ECF No.
41 at 31–32. To defeat a punitive damages award, OST bears the burden of demonstrating that it
engaged in good-faith efforts to comply with the law. Golson v. Green Tree Fin. Servicing
Corp., 26 F. App’x 209, 214 (4th Cir. 2002) (citations omitted). Although an employer’s ADA
policy can be evidence of good faith, id., its “mere existence . . . will not alone insulate an
employer from punitive damages liability.” E.E.O.C. v. Fed. Express Corp., 513 F.3d 360, 374
(4th Cir. 2008).
When viewing the record most favorably to the EEOC, the propriety of punitive damages
must reach the jury. To start, OST’s Policy does not include a complete definition of disability
and so does not properly advise employees as to the scope of ADA coverage. ECF No. 41-5 at

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9–10. Moreover, OST also gives employees a form on which they may self-classify as not
disabled. Yet the form also does not properly define “disability,” nor does it cite to the relevant,
controlling statute. ECF No. 41-7. Indeed, a reasonable factfinder may conclude that the form,
fairly read, misleads OST employees about the scope of ADA coverage, and thus hinders the
exercise of their rights under the prevailing law. Finally, the record reflects that OST did not
provide any training to its employees on the ADA generally or its Policy more specifically,
raising the inference that OST had no real interest in educating its employees as to the
protections afforded under the statute. See Golson, 26 F. App’x at 214 (affirming award of
punitive damages where there was no evidence that defendant provided follow up training).3
Thus, sufficient evidence exists in the record from which a reasonable factfinder could award
punitive damages. OST’s motion for summary judgment is denied.
IV. Conclusion
For the above stated reasons, the EEOC’s partial motion for summary judgment (ECF
No. 42) is granted in part and denied in part. OST’s motion for summary judgment (ECF No.
41) is denied. A separate order follows.

11/19/19
Date

/S/
Paula Xinis
United States District Judge

To be sure, a reasonable factfinder could conclude that OST’s misleading handbook and election form contributed
to Tyson misclassifying himself to OST as “not disabled.”
3

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