Baxley v. Savannah River Nuclear Solutions LLC et al
Filing
64
AMENDED ORDER AND OPINION vacating in part 57 Order on Report and Recommendation and granting 32 Motion for Summary Judgment. Signed by Honorable J Michelle Childs on 4/26/2018. (asni, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Steven W. Baxley,
)
)
)
v.
)
)
Savannah River Nuclear Solutions, LLC
)
1
and Savannah River Nuclear Solutions,
)
)
Defendants. )
____________________________________)
Plaintiff,
Civil Action No.: 1:16-cv-00901-JMC
AMENDED ORDER AND OPINION
On March 31, 2018, the court accepted the Magistrate Judge’s Report and
Recommendation (ECF No. 49) granting Defendant’s Motion for Summary Judgment (ECF No.
32). (ECF No. 57.) On its own accord and in consideration of the revised standard for constructive
discharge, 2 the court VACATES IN PART its March 31, 2018 Order (ECF No. 57) as to
Plaintiff’s claim for constructive discharge, and substitutes this Order.
I.
RELEVANT FACTUAL BACKGROUND
Plaintiff has been an employee at the Savannah River Site (SRS) since 1989. (ECF No.
32-2 at 8 (28:4-8.) Plaintiff worked as a Production Operator, and as a requirement for his job, he
was required to obtain and maintain all qualifications. (Id. at 17 (64:3-14); see also ECF No. 323 at 21.) In 2009, Plaintiff was placed on work restriction at the request of his doctor because he
has sleep apnea. (ECF No. 32-2 at 10 (34:20-22).) As a result of this restriction, Plaintiff was
1
Defendant asserts that it is the proper entity and that “Savannah River Nuclear Solutions” is not
the name of a legal entity. (ECF No. 32 at 1 n.1.) At the hearing on this matter, Plaintiff’s counsel
agreed that Defendant Savannah River Nuclear Solutions, LLC is the proper Defendant for this
matter. For these reasons, the court DIRECTS the clerk to strike Savannah River Nuclear
Solutions from the caption.
2
See U.S. Equal Employment Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131, 144 (4th
Cir. 2017), cert. denied sub nom. Consol Energy Inc. v. E.E.O.C., 138 S. Ct. 976 (2018)
1
limited to working only day shifts. (Id. at 35:4-14.) Plaintiff applied for a Grade 18 Production
Operator position at the Savannah River National Laboratory (“SRNL”), and in October 2012, he
started this position. (Id. at 14 (51:19-22).)
As a Production Operator at SRNL, Plaintiff was required to undergo training specific to
that facility and obtain all required qualifications. (Id. at 17 (64:3-17).) Part of this training was
learning the operations of three different watchstations (776-A Watchstation, Facility Operator
Watchstation, Control Area Watchstation). (Id. at 12-13 (44:12-46:2); see also ECF No. 32-3 at
21.)
Plaintiff qualified for the 776-A Watchstation and moved to training for the Facility
Operator Watchstation.
(ECF No. 32-3 at 17 (62:1-6).)
As part of his Facility Operator
Watchstation training, Plaintiff had to take part in a “walkthrough” with his manager, Kenny
Franklin. (ECF No. 32-2 at 15 (53:5-19).) In an August 2013 walkthrough, Franklin tested
Plaintiff’s knowledge of the facility’s operations by asking him questions related to various
operations and procedures in each of the areas of the facility. (ECF No. 32-3 at 13 (46:10-22).)
In order to be qualified as a Production Operator and to work in the Facility Operator Watchstation,
Plaintiff had to pass Franklin’s oral examination. (See id. at 5 (15:9-16:21).) If he could not
qualify, he would have to be reassigned to another position. (Id. at 8 (27:18-28:4).) Plaintiff did
not provide Franklin with satisfactory responses to some of the questions on the walkthrough,
therefore, Plaintiff did not qualify for the Facility Operator’s Watchstation. (Id. at 5 (16:3-21).)
However, Franklin did not fail Plaintiff, instead he suspended the test to allow Plaintiff the chance
to learn the operations and procedures of the Facility Operator Watchstation. (Id. at 15 (54:2455:25).) By doing so, Plaintiff was not immediately reassigned for training with a different group.
(Id. at (56:1-14).)
2
One of the areas where Plaintiff needed additional training was on ventilation processes,
including procedures concerning ventilation hoods in the laboratories. (ECF No. 32-2 at 18 (65:166:25); (68:5-11).) The ventilation hoods could not be turned off during the day when the
technicians were usually working because the ventilation hoods removed radioactive materials
from the air. (Id. at 18 (66:5-67:5).) As a result of the ventilation hoods not being able to be turned
off during the day, Franklin stated that Plaintiff would have to move to shift work on nights and
weekends in order to train on the ventilation hoods. (Id.; ECF No. 32-3 at 5-6 (16:24-17:15).)
Shift work on nights and weekends would allow Plaintiff to actually work with the equipment and
simulate. (Id. at 6 (19:16-20:2).) At this point Plaintiff told Franklin that he was on a work
restriction and that he could not perform shift work at night. (ECF No. 32-2 at 19 (71:9-20).)
Franklin then described what the procedure would be if Plaintiff could not qualify for the Facility
Operators Watchstation and the accommodations process that could be undertaken to help Plaintiff
qualify. 3 (Id. at (71:9-72:10).) Franklin also suggested that Plaintiff needed to go to his doctor in
order to be released from his work restriction. (Id. at 20 (74:12-25); ECF No. 32-3 at 7 (22:1222).)
In August 2013, Plaintiff met with Donna Fowler in Human Resources to discuss the reason
Plaintiff was being asked by Franklin to be relieved of his work restriction. (ECF No. 32-2 at 22
(83:6-20).) On August 26, 2013, Plaintiff e-mailed Fowler stating that he would be willing to work
after 5pm if necessary, and Fowler relayed to Plaintiff that a meeting was being planned to discuss
3
Plaintiff was considered a “full service” employee, therefore the accommodations process
includes in order of progression: (1) see if the employee can be reasonably accommodated in their
current position, (2) if the employee cannot be accommodated then efforts are made to find vacant
positions at the same grade level, or at a lower grade level, (3) if a job cannot be found, and there
can be no reasonable accommodation then the employee would be “medically discontinued.”
(ECF No. 32-2 at 20 (73:23-25), 63.)
3
how to handle Plaintiff’s work restriction. (ECF No. 32-5 at 2 ¶ 7; ECF No. 32-2 at 70.) On
September 12, 2013, a “Path Forward” meeting was held with representatives from Human
Resources and Plaintiff’s managers to discuss options for accommodating Plaintiff’s work
restriction. (ECF No. 32-5 at ¶ 8.) It was the group’s decision that they needed more information
from Plaintiff’s treating physician before it could move forward with any accommodations. (Id.
at 2-3 ¶ 9.)
On September 19, 2013, Franklin and Cindy Lyons met with Plaintiff and informed him
that the reasonable accommodations process had begun and that if he felt that his restrictions were
no longer permanent, then he should be reevaluated by his doctor. (ECF No. 32-2 at 24 (90:2291:22), 69.) Plaintiff was instructed that, if his doctor lifted his restrictions, by October 14, 2013
he was to give a letter to Dr. Johnson, the onsite SRNL physician, stating that his doctor had lifted
his restrictions. (Id. at 69.) Plaintiff testified that he understood where to take the letter from his
doctor. (Id. at 25 (93:21-22).) On September 24, 2013, Plaintiff met with his treating physician
and requested that his work restriction be lifted for two months (id. at 24 (92:3-6)), which his
physician granted (id. at 21 (78:13-23), 56). Plaintiff turned the letter in to Defendant in early
October 2013. (See id. at 56).
After the September 19, 2013 meeting, Plaintiff had another meeting with Willie Bell from
the EEOC, Ned Baynham from Human Resources, Fowler, Franklin, and Lyons. (Id. at 25-26
(95:25-98:25).) Plaintiff testified that, during this meeting, he was informed that there were no
more jobs available for him. (Id. at 26 (99:13-100:9).)
In October 2013, Plaintiff contacted Pat Smith in Human Resources to discuss his
eligibility to retire. (Id. at 29 (110:23-111:9).) Plaintiff testified that he told Smith that “there
wasn’t another job available and that [he] would be medically discontinued [because of this fact]”
4
(id. (111:2-6)), and Plaintiff testified that Smith told him that “it would be better for [him] to take
earlier retirement than to be medically discontinued and that’s when [he] decided to take
retirement” (id. (111:6-9)). On October 9, 2013, Plaintiff notified Fowler that he was retiring
effective October 31, 2013. (Id. at 29-30 (112:25-113:2)); (see also ECF No. 38 at 166 (e-mail to
Fowler).)
II.
RELEVANT PROCEDURAL BACKGROUND
On March 21, 2016, Plaintiff filed a Complaint against Savannah River Nuclear Solutions,
and Savannah River Nuclear Solutions, LLC under the Americans with Disabilities Act (“ADA”),
42 U.S.C. § 12101, et seq. (ECF No. 1.) On March 27, 2017, SRNS, LLC filed a Motion for
Summary Judgment (ECF No. 32), and on April 19, 2017, Plaintiff responded (ECF No. 37). 4 On
April 26, 2017, SRNS, LLC replied. (ECF No. 39.) On January 19, 2018, Magistrate Judge
Thomas E. Rogers, III filed the Report (ECF No. 49.) On February 2, 2018, Plaintiff filed an
Objection to the Report (ECF No. 50), and on February 16, 2018, SRNS, LLC replied (ECF No.
51).
III.
JURISDICTION
The court has jurisdiction over Plaintiff’s claims via 28 U.S.C. § 1331, as they arise under
laws of the United States. Plaintiff brings his claims pursuant to the Americans with Disabilities
Act, 42 U.S.C. § 12101, et seq.
IV.
LEGAL STANDARD
The Magistrate Judge’s Report is made in accordance with 28 U.S.C. § 636(b)(1)(B) and
Local Civil Rule 73.02(B)(2)(e) for the District of South Carolina. The Magistrate Judge makes
only a recommendation to this court, which has no presumptive weight. The responsibility to
4
On April 20, 2017, Plaintiff filed additional attachments to his Response. (ECF No. 38.)
5
make a final determination remains with this court. See Mathews v. Weber, 423 U.S. 261, 270-71
(1976). The court is charged with making a de novo determination of those portions of the Report
to which specific objections are made. Fed. R. Civ. P. 72(b)(2)-(3). “The district judge may
accept, reject, or modify the recommended disposition; receive further evidence, or return the
matter to the Magistrate Judge with instructions.” Id. at 72(b)(3).
Summary judgment should be granted “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 nonexistence would affect the disposition of
the case under the applicable law. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248–49 (1986).
A genuine question of material fact exists where, after reviewing the record as a whole, the court
finds that a reasonable jury could return a verdict for the nonmoving party. Id. at 248.
In ruling on a motion for summary judgment, a court must view the evidence in the light
most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 124
(4th Cir. 1990) (citing Pignons S.A. De Mecanique v. Polaroid Corp., 657 F.2d 482, 486 (1st Cir.
1981)). The nonmoving party may not oppose a motion for summary judgment with mere
allegations or denials of the movant’s pleading, but instead must “set forth specific facts”
demonstrating a genuine issue for trial. Fed. R. Civ. P. 56(e); see Celotex Corp. v. Catrett, 477
U.S. 317, 322, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). 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 (citing First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968)). “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). “[T]he burden [to show no
6
genuine issue of material fact] on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the non[-]moving
party’s case.” Celotex Corp., 477 U.S. at 325.
“In [ ] a situation [where a party fails to make a showing sufficient to establish an essential
element of their case, on which they will bear the burden of proof at trial], there can be ‘no genuine
issue as to any material fact,’ since a complete failure of proof concerning an essential element of
the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is
‘entitled to a judgment as a matter of law’ because the nonmoving party has failed to make a
sufficient showing on an essential element of her case with respect to which she has the burden of
proof.” Id. at 322–23.
V.
ANALYSIS
The Magistrate Judge found that Plaintiff stated two claims under the ADA, the first being
Defendant’s failure to provide Plaintiff reasonable accommodations, and the second being
constructive discharge. (ECF No. 49 at 1, 11, 18.) Plaintiff seems to combine these two claims
together; however, the court will address Plaintiff’s objections as to each claim separately.
a. Failure to Provide Reasonable Accommodations
Plaintiff states similar arguments in his objection (ECF No. 50) and Response (ECF No.
37) to Defendant’s Motion for Summary Judgment.
However, to the extent that Plaintiff
specifically objects to the Magistrate Judge’s finding in regard to Defendant’s failure to provide
Plaintiff with reasonable accommodations, the court will address this objection.
“In a failure to accommodate case, a plaintiff establishes a prima facie case by showing
‘(1) that he was an individual who had a disability within the meaning of the statute; (2) that the
[employer] had notice of his disability; (3) that with reasonable accommodation he could perform
7
the essential functions of the position . . .; and (4) that the [employer] refused to make such
accommodations.’” Rhoads v. F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001) (quoting Mitchell
v. Washingtonville Ctr. Sch. Dist., 190 F.3d 1, 6 (2d Cir. 1999)).
It is undisputed that Plaintiff was regarded as having a disability under the ADA due to his
sleep apnea and as evidenced by his work restrictions, therefore, he was disabled for purposes of
the statute. (See ECF No. 32-2 at 10 (34:20-35:14); ECF No. 37-1 at 2; ECF No. 37-4 at 2.); see
also 42 U.S.C. § 12102(3)(A). It is also undisputed that Defendant had notice of Plaintiff’s
disability. (See ECF No. 32-3 at 6 (20:3-19).) Whether Plaintiff could perform the essential
functions of the Production Operator position with reasonable accommodation and whether
Defendant refused to make such accommodations are at issue.
The court must determine the essential functions of Plaintiff’s job as a Grade 18 Production
Operator, and second whether the proposed accommodations were reasonable. “[A] function may
be essential because the reason the position exists is to perform that function” or “[t]he function
may be highly specialized so that the incumbent in the position is hired for his or her expertise or
ability to perform the particular function.” 29 C.F.R. § 1630.2(n)(2)(i),(iii). “Evidence of whether
a particular function is essential includes, but is not limited to: (i) [t]he employer’s judgment as to
which functions are essential. . . [and] (iv) [t]he consequences of not requiring the incumbent to
perform the function.” Id. at § 1630.2(n)(3)(i),(iv). Part of the essential duties of a Grade 18
Production Operator are to “[o]perate process controls [and equipment], and to [q]ualify on all
Grade 18 duties and maintain qualifications.” (ECF No. 38 at 149.)
In order to qualify as a Grade 18 Production Operator, Plaintiff had to be qualified to work
in three (3) different watchstations, including the Facility Operators Watchstation. (ECF No. 323 at 17 (61:24-62:23)); (see also ECF No. 32-3 at 21.) Part of Plaintiff’s qualification process for
8
the Facility Operators Watchstation was to participate in a walkthrough with Franklin, and the
purpose of the walkthrough was for Franklin “to determine the knowledge level of [Plaintiff] in
the area of facility operations.” (ECF No. 38 at 130.) As a result of Plaintiff’s walkthrough, there
are several notations on evaluation forms that note that Plaintiff was “weak” in some areas, or “did
not know the location” of certain systems. (Id. at 132-147); (see also ECF No. 32-3 at 5 (16:314).) Because of Plaintiff’s performance on the walkthrough, he was not qualified for the Facility
Operators Watchstation, which is essential for the job of a Grade 18 Production Operator. (See
ECF No. 32-3 at 21.)
Due to Plaintiff’s failure to qualify on the Facility Operators Watchstation, Plaintiff would
be required to work some night shifts which was not in line with his work restrictions. (ECF No.
32-2 at 19 (71:9-20).)
Therefore, the court must inquire into whether Defendant could have
offered other reasonable accommodations that would allow Plaintiff to fulfill the essential
elements of a Grade 18 Production Operator without opposing Plaintiff’s work restrictions.
There are two steps to determine whether an accommodation is reasonable, “(1) was the
specific accommodation Plaintiff requested reasonable, and (2) if Defendant had granted the
accommodation could Plaintiff perform the essential functions of the position.” See Jacobs v. N.C.
Administrative Office of the Courts, 780 F.3d 562, 580 (4th Cir. 2015).
A “reasonable accommodation” is defined as:
“(i) modifications or adjustments to a job application process that enable a qualified
applicant with a disability to be considered for the position such qualified applicant
desires; or (ii) modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is customarily
performed, that enable an individual with a disability who is qualified to perform
the essential functions of that position; or (iii) modifications or adjustments that
enable a covered entity’s employee with a disability to enjoy equal benefits and
privileges of employment as are enjoyed by its other similarly situated employees
without disabilities.” 29 C.F.R. § 1630.2(o)(1).
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In addition, as part of the ADA’s definition of reasonable accommodation, it provides that,
“[t]o 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. This process should identify the precise limitations resulting from the disability
and potential reasonable accommodations that could overcome those limitations.” 29 C.F.R. §
1630.2(o)(3). There is a dual burden to engage in the interactive process. See Crabill v. Charlotte
Mecklenburg Bd. of Educ., 423 F. App’x 314, 323 (4th Cir. 2011) (unpublished opinion)
(“[N]either party should be able to cause a breakdown in the process for the purpose of either
avoiding or inflicting liability.”) (quoting Beck v. Univ. of Wisconsin Bd. of Regents, 75 F.3d 1130,
1135–36 (7th Cir. 1996)). “The interactive process ‘is not an end in itself; rather it is a means for
determining what reasonable accommodations are available to allow a disabled individual to
perform the essential job functions of the position sought.’” Wilson v. Dollar Gen. Corp., 717
F.3d 337, 347 (4th Cir. 2013) (quoting Rehling v. City of Chi., 207 F.3d 1009, 1015 (7th Cir.
2000)).
“An employer may reasonably accommodate an employee without providing the exact
accommodation that the employee requested. Rather, the employer may provide an alternative
reasonable accommodation.” Reyazuddin v. Montgomery Co., Maryland, 789 F.3d 407, 415 (4th
Cir. 2015) (citing Hankins v. The Gap, Inc., 84 F.3d 797, 800 (6th Cir. 1996)). “Nonetheless, ‘a
reasonable accommodation should provide a meaningful equal employment opportunity.
Meaningful equal employment opportunity means an opportunity to attain the same level of
performance as is available to nondisabled employees having similar skills and abilities.’” Id.
(quoting H.R.Rep. No. 101–485, pt. 2, at 66 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 349).
Plaintiff asserts that he should have been able to simulate the requirements for the Facility
10
Operators Watchstation rather than being moved to the night shift in violation of his work
restriction. 5 (ECF No. 50 at 3.) Part of the issue with Plaintiff’s ability to qualify for the Facility
Operators Watchstation is that Plaintiff had a “weak” understanding of how to operate the
ventilation systems and fans (ECF No. 32-2 at 15 (53:12-13)), and Plaintiff testified that these fans
could only be turned off at night and on weekends when technicians were not working due to the
fans’ function of removing radioactive particles (id. at 18 (65:16-66:25)). Plaintiff also testified
that simulation could be used to qualify for the Facility Operators Watchstation, and that he had
performed simulations many times in his career as a Production Operator. (Id. at 18 (68:15-24).)
However, Plaintiff was not aware of anyone who was allowed to perform a simulation on the
specific process of operating the ventilation hoods. (Id. at 19 (69:21-24).)
When Plaintiff informed Franklin of his inability to work the night shift given his work
restriction, Defendant initiated an interactive process to try to accommodate Plaintiff’s disability,
as evidenced by its September 12, 2013 “Path Forward” meeting where it was determined that
Defendant needed more information from Plaintiff’s physician before moving forward with
accommodations. (ECF No. 32-5 at 2-3 ¶ 9.) Plaintiff obtained a letter from his physician stating
that he could be released from his restrictions for two (2) months and provided it to Defendant in
early October 2013. (See ECF No. 32-2 at 56.) However, on October 9, 2013, a short time after
his doctor’s letter was turned in, Plaintiff retired and the interactive process was discontinued. (Id.
at 29-30 (112:25-113:2), 72; see also ECF No. 32-5 at 4 ¶ 15.)
As the Magistrate Judge opined, it seems like Plaintiff retired because he did not receive
the accommodation he wanted. (ECF No. 49 at 16.) “An employer is not obligated to provide an
5
The court finds no evidence that Plaintiff ever requested to simulate the operations and
procedures for the Facility Operators Watchstation, but will assume that simulation of these
operations and procedures was a possible reasonable accommodation.
11
employee the accommodation he or she requests or prefers; the employer need only provide some
reasonable accommodation.”
Crawford v. Union Carbide Corp., 202 F.3d 257, 1999 WL
1142346, at *4 (4th Cir. 1999) (unpublished opinion) (quoting Baert v. Euclid Beverage, Ltd., 149
F.3d 626, 633 (7th Cir. 1998)). Plaintiff wanted to fulfill his qualifications for the Facility
Operators Watchstation through a simulation, however, Franklin testified that Plaintiff was already
given the opportunity to simulate the required operations and procedures for the Facility Operators
Watchstation before going through the walkthrough. (ECF No. 32-3 at 6 (18:18-20).) Additionally,
Willie Bell from Human Resources testified that Plaintiff had two opportunities to demonstrate his
knowledge of the operations and procedures regarding the Facility Operators Watchstation using
simulation. Because Plaintiff did not pass either simulation, Defendant planned for him to
walkthrough the Facility Operator Watchstation and to have an oral examination with Franklin.
(ECF No. 32-4 at 7 (21:21-22:10)); (see also ECF No. 37-2 at 3.)
As evidenced by Bell’s comments, it is not certain that Plaintiff would be able to perform
the essential elements of the job with the reasonable accommodation of simulation. Moreover,
even if Plaintiff was allowed to simulate the requirements for the Facilities Operation Workstation,
he would still have to qualify for the Control Repair Watchstation in order to be fully qualified as
a Production Operator. (See ECF No. 32-3 at 21.) There is a dispute of fact as to whether it was
reasonable under the circumstances to allow Plaintiff to qualify for the job of Production Operator
through simulation, or if the simulations would allow him to perform the essential functions of a
Grade 18 Production Operator. However, Plaintiff fails to provide sufficient evidence as to the
last element of his prima facie case, therefore, these issues of fact are not material.
As to the last element of Plaintiff’s prima facie case for failure to accommodate, Plaintiff
has to present evidence that Defendant refused to provide a reasonable accommodation that would
12
allow him to perform the essential elements of the job. Plaintiff has provided no evidence that
Defendant refused to accommodate him, just that Defendant had not provided the accommodations
that he wanted. As stated above, once Plaintiff told Franklin about his work restriction, Defendant
began trying to accommodate Plaintiff and created a panel to determine how Defendant could
reasonably accommodate Plaintiff. (See ECF No. 32-5 at 2-3 ¶ 9; ECF No. 32-2 at 19 (71:972:10).)
Defendant tried to accommodate Plaintiff’s disability and has presented evidence showing
that it was in the midst of determining an accommodation when Plaintiff retired. (See ECF No.
32-3 at 10 (34:14-36:20).) Defendant made a good faith effort to accommodate Plaintiff and the
evidence shows that it worked with Plaintiff to try to formulate some form of an accommodation
and the parties might have done so if Plaintiff did not retire during the process. Because Plaintiff
has the burden to demonstrate that Defendant refused to make a reasonable accommodation for
him, Plaintiff’s lack of evidence demonstrating Defendant’s refusal to accommodate him is fatal
to his claim. See Celotex, 477 U.S. at 322-23.
b. Constructive Discharge
“A claim of constructive discharge [ ] has two basic elements. A plaintiff must prove first
that he was discriminated against by his employer to the point where a reasonable person in his
position would have felt compelled to resign[,] but [second] he must also show that he actually
resigned.” Green v. Brennan, 136 S. Ct. 1769, 1777 (2016). The standard for constructive
discharge requires “objective intolerability”, but not “deliberateness, or a subjective intent to force
a resignation.” Consol Energy, Inc., 860 F.3d at 144 (quoting Green 136 S. Ct. at 1779-80)).
“The constructive-discharge doctrine contemplates a situation in which an employer
discriminates against an employee to the point such that his ‘working conditions become so
13
intolerable that a reasonable person in the employee’s position would have felt compelled to
resign.’” Green, 136 S. Ct. at 1776 (quoting Pennsylvania State Police v. Suders, 542 U.S. 129,
141 (2004)).
“Whether an employment environment is intolerable is determined from the
objective perspective of a reasonable person.” Heiko v. Colombo Sav. Bank, F.S.B., 434 F.3d 249,
262 (4th Cir. 2006) (citing Williams v. Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004)).
“Dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or
unpleasant working conditions are not so intolerable as to compel a reasonable person to resign.”
Williams, 370 F.3d at 434 (quoting Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994)).
In order to establish that Plaintiff was constructively discharged, Plaintiff must first prove
that Defendant discriminated against him. 6 To establish a prima facie case of discriminatory
termination under the ADA, a plaintiff must show: “(1) he ‘was a qualified individual with a
disability’; (2) he ‘was discharged’; (3) he ‘was fulfilling h[is] employer’s legitimate expectations
at the time of discharge’; and (4) ‘the circumstances of h[is] discharge raise a reasonable inference
of unlawful discrimination.’” Reynolds v. Am. Nat. Red Cross, 701 F.3d 143, 150 (4th Cir. 2012)
(quoting Rohan v. Networks Presentations LLC, 375 F.3d 266, 273 n.9 (4th Cir. 2004)).
It is undisputed that Plaintiff was regarded as having a disability under the ADA. (See ECF
No. 32-2 at 10 (34:20-35:14); ECF No. 37-1 at 2; ECF No. 37-4 at 2.) The parties dispute whether
Plaintiff was constructively discharged.
6
Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572 (4th Cir. 2015) (“Disability
discrimination may be proven through direct and indirect evidence or through the McDonnell
Douglas burden-shifting framework.”). Under the McDonnell Douglas framework, Plaintiff must
first establish a prima facie case of discrimination, then the burden shifts to Defendant to articulate
a legitimate, nondiscriminatory reason for its employment action, and if Defendant meets this
burden then Plaintiff must offer evidence demonstrating that the reason is pretextual. See
McDonnell Douglas v. Green, 411 U.S. 792, 802-03 (1973), holding modified by Hazen Paper Co.
v. Biggins, 507 U.S. 604 (1993).
14
Plaintiff asserts that Defendant forced him to retire by failing to accommodate his disability
and by forcing him “to choose between his health or his job.” (ECF No. 50 at 3–4.) Plaintiff also
asserts that he retired under duress because Pat Smith from Human Resources told him that his
only option was to retire. 7 (See ECF No. 50 at 3.) However, this assertion is contradicted by
Plaintiff’s own testimony that “[Smith] said it would be better for [Plaintiff] to take earlier
retirement than to be medically discontinued and that’s when [he] decided to take retirement.”
(ECF No. 32-2 at 29 (111:6-9).) Smith made this recommendation in response to Plaintiff’s
statement that “there wasn’t another job available and that [he] would be medically discontinued.”
(Id. at (111:2-4).) Plaintiff came to the conclusion that there were no alternate jobs available based
on a meeting that he had with Franklin, Lyons, and Baynham. (Id. at 26 (99:13-24).) Plaintiff
testified that he asked Baynham if there were any more day jobs for him anywhere else on site,
and Baynham told him “no.” (Id.) However, Plaintiff did not recall whether he asked only about
Grade 18 jobs, or both Grade 18 and Grade 16 jobs. (Id. at 100:1-7).)
Plaintiff has not provided sufficient evidence that his working conditions were so
intolerable that he was forced to retire. See Green, 136 S. Ct. at 1776. Defendant was still engaged
in the interactive process of trying to accommodate Plaintiff and only discontinued the process
when Plaintiff retired. (See ECF No. 32-5 at 15.) Plaintiff was not satisfied with the means by
which he was asked to qualify for the Facility Operators Watchstation, but this does not reach the
level of intolerability necessary to establish constructive discharge. See Williams, 370 F.3d at 434
(dissatisfaction with work assignments is not so intolerable as to compel a reasonable person to
resign). Additionally, to the extent that Plaintiff feared that he would be terminated if he did not
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Plaintiff believed that he would be terminated if he did not take early retirement. (ECF No. 322 at 31 (118:12-15).)
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retire early, this fear does not constitute an intolerable working condition. See Robinson v. BGM
America, Inc., 964 F. Supp. 2d 552, 578 (D.S.C. 2013) (“[A]lthough [Plaintiff] may have feared
termination . . . such subjective fear does not constitute an intolerable working condition.”);
Mozingo v. S. Fin. Grp., Inc., 520 F. Supp. 2d 733, 742 (D.S.C. 2007) (“[T]he fear of being fired
does not amount to a constructive discharge.”).
For these reasons, the court finds that Plaintiff has not established that he was
constructively discharged or discriminatorily terminated, therefore, summary judgment should be
granted as to Plaintiff’s claim for constructive discharge.
VI.
CONCLUSION
Upon additional consideration of the entire record, the court VACATES IN PART the
previous Order (ECF No. 57) entered regarding this matter, and substitutes this Order. For the
reasons stated above, the court ACCEPTS the Report (ECF No. 49), and GRANTS Defendant’s
Motion for Summary Judgment (ECF No. 32).
IT IS SO ORDERED.
United States District Judge
April 26, 2018
Columbia, South Carolina
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