Sanders v. McLeod Health Clarendon et al

Filing 44

ORDER granting 35 Motion for Summary Judgment; adopting 40 Report and Recommendation. Signed by Honorable David C Norton on June 25, 2020.(cdan, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
STEPHEN E. SANDERS,

)
)
Plaintiff,
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vs.
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MCLEOD HEALTH CLARENDON,
)
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Defendant.
)
____________________________________)

No. 2:18-cv-01344-DCN-MGB
ORDER

This matter is before the court on United States Magistrate Judge Mary Gordon
Baker’s report and recommendation (“R&R”) that the court grant defendant McLeod
Health Clarendon’s (“McLeod”) motion for summary judgment, ECF No. 35. For the
reasons set forth below, the court adopts the R&R and grants the motion.
I. BACKGROUND
This case arises out of McLeod’s termination of plaintiff Stephen E. Sanders
(“Sanders”) from his position as an EMS transport coordinator. The R&R ably and
comprehensively recites the facts of this case, and Sanders does not object to the R&R’s
presentation thereof. Therefore, the court provides only a brief summary of those facts
material to its legal analysis in lieu of a more thorough recitation.
McLeod hired Sanders as an EMS transport vehicle paramedic in January 2015.
In January 2016, McLeod promoted Sanders to EMS transport coordinator, a primarily
administrative position responsible for coordinating and supervising an EMS team’s
transport to an accident scene. In his new position, Sanders retained the authority to
assist with on-scene emergency medical care alongside EMS teams at his discretion, and
he did so often. On August 10, 2017, Sanders received a dispatch call alerting him to a
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serious car accident between a logging truck and an SUV that occurred north of Manning,
South Carolina. Sanders accompanied the EMS team to the accident scene.
Upon the EMS team’s arrival, paramedic and shift supervisor Stephanie Hughes
(“Hughes”) assessed the scene and reported to Sanders that the driver of the SUV, who
was pinned in his vehicle beneath the overturned trailer of the logging truck, sustained
“an injury incompatible with life”, meaning that the team’s mission was one of
“recovery” rather than “rescue”. Nevertheless, after hearing that the SUV driver was
breathing and responding to stimuli, Sanders climbed beneath the overturned trailer to
deliver emergency medical care and attempt a rescue. After a short period of time, tow
trucks arrived on the scene and began lifting logs off of the SUV. Sanders continued to
administer emergency medical care to the SUV driver, despite instructions from his EMS
team and Clarendon County Fire Department (“CCFD”) Captain Ed Gamble (“Gamble”)
to abandon the accident scene, which Gamble determined to be unstable and unsafe.
Although the specific facts surrounding the altercations between Sanders and other
emergency responders at this time are disputed, it is clear that the conflict went on for a
significant amount of time, and Sanders admits that the confrontations included “stressrelated” words. ECF No. 38-1, Sanders Depo. at 111:3–13. The SUV driver ultimately
died at the scene.
On the evening of the accident, Sanders called Brad Gerfin (“Gerfin”), the
director of EMS and Sanders’s direct supervisor at McLeod. Sanders told Gerfin that
Gerfin “may be hearing about” Sanders’s behavior at the accident scene because of his
altercation with the CCFD and particularly his confrontation with Gamble. ECF No. 35–
4, Gerfin Depo. 20:18–21:3. The next day, Sanders met Gerfin in his office and informed

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Gerfin of the emotional toll he had been experiencing due to the prior day’s events and
the nature of his job in general. Gerfin gave Sanders the rest of the day off. Later that
afternoon, one of the paramedics who was on the scene of the accident informed Gerfin
that he needed to “check into” the events that occurred at the accident scene. Id. at 23:8–
24:3. Based on that information, Gerfin initiated an investigation into Sanders’s conduct
during the August 10th accident.
On Monday, August 14, 2017, Sanders returned to work and again met with
Gerfin. Gerfin informed Sanders that he had initiated an investigation into Sanders and
formally referred Sanders to the Employee Assistance Program (“EAP”) so that he could
receive professional help and improve his mental health and wellbeing. The next day,
Gerfin placed Sanders on paid administrative leave pending the results of the
investigation. As part of the investigation, Gerfin procured written statements from
several members of the EMS team and the CCFD who were on-site at the accident
scene,1 as well as a report from Sanders detailing his version of the accident, known as a
“Trip Report”. After reviewing the fruits of the investigation, Gerfin concluded that
Sanders “engaged in unprofessional conduct, put his own safety in jeopardy, put the
safety of others in jeopardy, and delayed the operation at the accident scene on August
10, 2017.” ECF No. 35-8, Gerfin Decl. ¶ 10. On August 18, 2017, Gerfin terminated
Sanders’s employment.
On April 9, 2018, Sanders filed this action in the Clarendon County Court of
Common Pleas, bringing a claim against McLeod for wrongful discharge and failure to

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The R&R provides a detailed description of each written statement. Rather than
restate that which the R&R thoroughly recounted, the court discusses the contents of the
written statements as they become relevant to the court’s application of the law.
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accommodate in violation of the Americans with Disabilities Act (“ADA”).2 ECF No. 11. In his complaint, Sanders alleges that McLeod fired him because of his disability,
post-traumatic stress syndrome (“PTSD”), and that McLeod failed to accommodate
Sanders in light of his PTSD. On May 16, 2018, McLeod removed the action to this
court where, pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.02(B)(2)(g) (D.S.C.), it
was referred to the Magistrate Judge. ECF No. 1. On September 27, 2019, McLeod filed
a motion for summary judgment, which the parties fully briefed. ECF No. 35. On April
8, 2020, Magistrate Judge Baker filed the R&R, recommending that the court grant the
motion. ECF No. 40. On April 21, 2020, Sanders filed objections to the R&R. ECF No.
41. On May 5, 2020, McLeod responded to the objections, ECF No. 42, to which
Sanders replied, ECF No. 43. Thus, this matter has been fully briefed and is ripe for the
court’s review.
II. STANDARD
A. R&R
The Magistrate Judge makes only a recommendation to the court. Mathews v.
Weber, 423 U.S. 261, 270 (1976). The recommendation carries no presumptive weight,
and the responsibility to make a final determination remains with the court. Id. at 270-71.
The court may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge . . . or recommit the matter to the
magistrate judge with instructions.” 28 U.S.C. § 636(b)(1). The court is charged with
making a de novo determination of any portion of the R&R to which a specific objection

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Sanders also initially brought a claim for civil conspiracy against McLeod and
Clarendon County but voluntarily dismissed that claim during discovery.
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is made. Id. However, de novo review is unnecessary when a party makes general and
conclusory objections without directing a court’s attention to a specific error in the
magistrate judge’s proposed findings. Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982). In the absence of a specific objection, the court reviews the R&R only for clear
error. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(citation omitted). “A finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948).
B. Motion for Summary Judgment
Summary judgment shall be granted if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine dispute as to any
material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). “By its very terms, this standard provides that the mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
“Only disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary
judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether there

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is a genuine issue for trial.” Id. at 249. The court should view the evidence in the light
most favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
“The party seeking summary judgment shoulders the initial burden of
demonstrating to the district court that there is no genuine issue of material fact.” Major
v. Greenville Hous. Auth., 2012 WL 3000680, at *1 (D.S.C. Apr. 11, 2012).
Nevertheless, “when a properly supported motion for summary judgment is made, the
adverse party ‘must set forth specific facts showing that there is a genuine issue for trial.’
” Id. (quoting Fed. R. Civ. P. 56(e)). The plain language of Federal Rule of Civil
Procedure 56(c) “mandates the entry of summary judgment, after adequate time for
discovery and upon motion, against a party who 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[C]onclusory allegations or denials, without more, are insufficient to preclude
the granting of the summary judgment motion.” Major, 2012 WL 2000680, at *1.
III. DISCUSSION
In the R&R, the Magistrate Judge made three findings to which Sanders objects.
As her first and second findings, the Magistrate Judge found that Sanders failed to satisfy
both the first and third elements of a prima facie showing of wrongful discharge under
the ADA. Further, the Magistrate Judge found that Sanders did not present sufficient
evidence from which a reasonable jury could find that McLeod’s stated reason for
terminating Sanders was pretext for discrimination.3 Sanders objects to each of these

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The Magistrate Judge also found that Sanders failed to make a prima facie
showing of his claim for failure to accommodate under the ADA, noting that “there is no
evidence that [McLeod] actually denied [Sanders]’s request for a reasonable
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findings, arguing that he has presented sufficient evidence to both establish a prima facie
case for wrongful discharge under the ADA and to show that McLeod’s stated reason for
his termination was mere pretext for discrimination on the basis of his disability. The
court agrees with the Magistrate Judge’s finding that Sanders has not made a prima facie
showing of wrongful discharge under the ADA. As such, the court adopts the R&R and
grants McLeod’s motion.
A. Wrongful Discharge under the ADA
Sanders asserts that McLeod fired him because of his PTSD, which constitutes a
wrongful discharge under the ADA. The ADA prohibits discrimination by a covered
entity against any “qualified individual on the basis of disability” in regard to any term or
condition of employment. 42 U.S.C. § 12112(a). There are two avenues by which a
plaintiff may prove wrongful discharge based on discrimination. Hill v. Lockheed Martin
Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). The first is to offer
direct or circumstantial evidence of discrimination, under “ordinary principles of proof.”
Burns v. AA F—McQuay, Inc., 96 F.3d 728, 731 (4th Cir. 1996) (internal quotation
marks omitted). The R&R found that Sanders has not presented any evidence that might
satisfy his burden under this avenue, and Sanders does not object to that finding. The
court’s analysis therefore focuses on the second avenue by which Sanders may prove his
discrimination claim.

accommodation.” ECF No. 40 at 23. Sanders does not object to this finding, and the
court therefore adopts it without conducting further review. See Thomas v. Arn, 474
U.S. 140, 149–50 (1985) (finding that the court may adopt the portions of the R&R to
which the petitioner did not object, as a party’s failure to object is accepted as agreement
with the conclusions of the magistrate judge).
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Under the second avenue, Sanders may prove his claim of discrimination pursuant
to now-ubiquitous burden-shifting framework articulated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell Douglas, a
plaintiff must first establish a “prima facie case of discrimination.” Merritt v. Old
Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010) (citing Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 252–53 (1981)). Second, if the plaintiff
establishes a prima facie case, the burden of production shifts to the employer to produce
evidence of a legitimate, non-discriminatory reason for the adverse employment action.
Lettieri v. Equant Inc., 478 F.3d 640, 646 (4th Cir. 2007). Third, if the defendant shows
a legitimate, non-discriminatory reason for its actions, the burden flips back to the
plaintiff to show evidence that the defendant’s asserted reason for its actions was actually
pretext for discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000). Despite the shifting burdens of proof, the “ultimate burden of persuading the
court that the plaintiff has been the victim of intentional discrimination” remains with the
plaintiff. Lettieri, 478 F.3d at 646.
At the first step of the McDonnell Douglas approach, a plaintiff must establish a
prima facie case of wrongful discharge under the ADA. To establish a prima facie case,
the plaintiff must show that (1) he was a qualified individual with a disability,4 (2) he was
discharged, (3) he was fulfilling his employer’s legitimate expectations at the time of
discharge, and (4) the circumstances of his discharge raise a reasonable inference of

Some courts articulate the first element as requiring the plaintiff to show that “he
was within the ADA’s protected class.” See Haulbrook, 252 F.3d at 702. This is a
distinction without a difference because a showing that one is within the “ADA’s
protected class” requires a showing that one is a “qualified individual” and has “a
disability” within the meaning of the ADA.
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unlawful discrimination. Reynolds v. Am. Nat’l Red Cross, 701 F.3d 143, 150 (4th Cir.
2012); Haulbrook v. Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001). The R&R
found that Sanders failed to satisfy the first and third elements of a prima facie case.
B. First Element: Qualified Individual
The R&R found that Sanders failed to meet the first element of prima facie
discrimination case for wrongful discharge, reasoning that Sanders could not show that
he was a “qualified individual” under the ADA because his PTSD “rendered him entirely
unable to work.” ECF No. 40 at 14. Sanders objects to this finding, arguing that while
there is evidence that Sanders could not perform his duties as an on-scene paramedic, that
evidence does not support the R&R’s conclusion that Sanders could not perform the
essential functions of his job, which were primarily administrative. The court agrees with
the Magistrate Judge.
As the first element of a prima facie case of disability discrimination, Sanders
must show that he was a qualified individual with a disability at the time of his firing.
There is no dispute that Sanders suffered from PTSD, a disability under the ADA, at the
time of his discharge. The court’s inquiry thus focuses on whether Sanders was a
“qualified individual.” Under the ADA, “the term ‘qualified individual’ means an
individual who, with or without reasonable accommodation, can perform the essential
functions of the employment position that such individual holds or desires.” 42 U.S.C. §
12111(8). The court agrees with the R&R that summary judgment is warranted on this
basis because there is no evidence in the record that Sanders could perform the essential
functions of his job at the time of his firing.

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As the R&R noted, there is evidence in the record that Sanders could not perform
the essential functions of his job at the time of his August 18, 2017 discharge. Sanders
testified in his deposition that shortly after the August 10th accident, he began
experiencing “severe . . . emotional problems”, including “anxiety, depression [and]
panic attacks . . . .” ECF No. 35-2, Sanders Depo. 168:19–21; 169:9–10. As a result,
Sanders noted that he “couldn’t stay around” his place of work. Id. at 169:8. Moreover,
Sanders testified that his mental illnesses would prevent him from returning to his job at
McLeod:
Q: Have you applied for any position since your separation from
employment with McLeod?
A. No.
Q. Why not?
A. Well, part of the PTSD and the anxiety and what have you is being
around people. There’s no way I could –- it scares me to think that I could
treat a patient right now because I have zero confidence. It scares me to -–
I don’t even like to hear the ambulance or the sirens come by. It makes me
very anxious. I can’t be around people.
Id. at 207:9–19. The R&R also noted that Sanders received disability benefits after his
termination from McLeod and failed to “directly reconcile his disability benefits with his
ADA claim.” ECF No. 40 at 16.
In his objection, Sanders argues that he “never testified [that] he was unable to
perform the administrative tasks that McLeod had assigned him prior to the accident
and[,] in fact, he continued to perform those tasks after the accident.” ECF No. 41 at 5.
In other words, Sanders argues that while the evidence in the record supports a
conclusion that he was unable to perform his duties as an on-scene paramedic, there is no
evidence that Sanders could not perform his administrative duties as a transport
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coordinator. The problem with Sanders’s argument is two-fold. First, Sanders points to
no evidence in the record that might support his contention that he could perform his
duties as a transport coordinator and instead offers only empty assertions that at the time
of his discharge, he was able to perform his “primary job responsibilities.” Id. Further,
Sanders has presented no evidence from which the court might conclude that the
administrative duties of a transport coordinator are the “essential functions” of that
position. At this stage, Sanders shoulders the burden to present evidence of the first
element of a prima facie case for wrongful discharge—that is, to show that he could
perform the essential functions of his position. In the absence of any evidence supporting
that element, summary judgment is appropriate. In short, the evidence suggests that
Sanders, after the August 10, 2017 accident, could not perform the essential functions of
his job, and Sanders has presented no evidence to the contrary.5
Further, Sanders has presented no evidence that he could have performed the
essential functions of his job with “reasonable accommodations.” The R&R noted that
“there is no evidence in the record suggesting that [Sanders]’s participation in the EAP
would have alleviated his PTSD symptoms to the point where he could have returned to
his position.” ECF No. 40 at 16. Sanders does not object to this finding of the R&R, nor
does he argue in his objections that he could have performed the essential functions of his

Sanders presented an unsigned declaration in which he stated, “[W]hile I was
participating in the EAP, I was able to continue to do all of the essential administrative
and supervisory functions of my job.” ECF No. 38-1 at 86. The R&R declined to
consider the declaration based on its finding that the declaration conflicted Sanders’s
earlier deposition testimony and thus could not preclude summary judgment under the
“sham affidavit” doctrine. Sanders failed to object to the R&R’s finding that the
declaration was a “sham affidavit.” Therefore, the court reviews the R&R’s finding for
clear error and finds that it is not clearly erroneous.
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job with “reasonable accommodations.” Based on the lack of evidence before the court
and the burden of production it must apply, the court adopts the R&R’s finding that
Sanders failed to show that he was a “qualified individual” under the ADA. Therefore,
the court rejects Sanders’s first objection.
C. Third Element: Employer’s Legitimate Expectations
The third element of a wrongful discharge claim under the ADA requires Sanders
to show that he was performing his job at a level that met the legitimate expectations of
his employer. Reynolds, 701 F.3d at 150. The R&R found that Sanders failed to satisfy
the third element of a prima facie discrimination case under the ADA because he “was
not satisfying [McLeod]’s reasonable expectations at the time of his discharge” based on
his behavior at the scene of the August 10th accident. ECF No. 40 at 18. As is wellsettled law, the R&R “analyze[d] the work performance from the viewpoint of the
decision-maker in determining whether the employee was satisfying the legitimate
expectations of his employer . . . .” Dinda v. CSC Gov’t Sols. LLC, 2019 WL 3244186,
at *4 (D.S.C. July 19, 2019). Gerfin, the decision-maker here, based his decision to
terminate Sanders on the information he obtained during his investigation of Sanders and
the policies to which EMS personnel must adhere. For example, one such policy of vital
importance is that a shift supervisor takes the lead during a rescue or recovery mission
and that EMS personnel must not break the chain of command. One of the written
statements Gerfin reviewed was that of Hughes, the on-scene shift supervisor during the
August 10th accident. Hughes reported that Sanders broke the chain of command by
disregarding her direct orders, shouted, “Get away from me, I mean it!” in response to
orders to stand down, and acted “with a total disregard for his own safety and the safety

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of other emergency personnel on scene.” ECF No. 38-1 at 55. The other statements
Gerfin considered contained similar reports of Sanders’s actions. While there are factual
inconsistencies between the statements of the EMS team members and Sanders about the
events surrounding the August 10th accident, there is no dispute about the information on
which Gerfin based his decision to discharge Sanders. From the perspective of Gerfin,
the R&R correctly concluded, there is no dispute that Sanders was not meeting the
legitimate expectations of McLeod, based on his actions at the scene of the August 10th
accident.
Sanders objects, arguing only that “a plaintiff’s qualifications are to be assessed in
terms of whether he or she was meeting the employer’s legitimate expectations prior to
and independent of the events which led to the adverse action.” ECF No. 41 at 6. In
other words, Sanders argues that the court may not consider the events surrounding
August 10th accident in determining whether Sanders was satisfying McLeod’s
legitimate expectations at the time of his discharge. In support of his contention, Sanders
provides a bare citation to Tysinger v. Police Dep’t of City of Zanesville, 463 F.3d 569
(6th Cir. 2006). Sanders’s reliance on Tysinger is entirely misplaced.
As a preliminary matter, law from the Sixth Circuit is not binding on this court.
Moreover, even if it were, the law Sanders plucks from Tysinger, devoid of any context,
is plainly inapplicable to his case. In Tysinger, the Sixth Circuit considered whether the
plaintiff presented sufficient evidence to establish a prima facie case of “discrimination
because of or on the basis of pregnancy” under the “Pregnancy Discrimination Act
provisions of Title VII [of the Civil Rights Act].” 463 F.3d at 572. To satisfy the second
element for such a claim in the Sixth Circuit, the plaintiff must show that “she was

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qualified for her job.” Id. at 573. Needless to say, that question is distinct from the
inquiry relevant here—whether Sanders was satisfying his employer’s legitimate
expectations at the time of his discharge. In determining whether the plaintiff satisfied
this element, the Sixth Circuit determined that the plaintiff’s qualifications “are to be
assessed in terms of whether [ ] she was meeting the employer’s expectations prior to and
independent of the events that led to the adverse action.” Id. The logic of Sixth Circuit’s
finding is obvious. In the context of a wrongful discharge due to pregnancy claim, the
court should not consider the plaintiff’s pregnancy in determining whether or not she was
qualified for her job. It seems equally obvious to the court that both the finding of the
Sixth Circuit and the rationale that underlies it are completely irrelevant to this case.
In the context of a wrongful discharge claim under the ADA, the law is clear that
the court considers whether a plaintiff was fulfilling his employer’s legitimate
expectations “at the time of discharge”, not prior to the events that led to the plaintiff’s
firing. Chauncey v. Life Cycle Eng’g, Inc., 2013 WL 5468237, at *9 (D.S.C. Sept. 30,
2013) (emphasis added). Sanders asks the court to consider whether he was meeting
McLeod’s expectations by turning a blind eye to the events that led to his firing. Of
course, the source of an employee’s failure to meet his employer’s expectations is often
the events that led to the employee’s firing. Sanders’s interpretation of law would all but
eliminate the burden of the plaintiff with respect to the third element of the prima facie
case because it would preclude the court from considering the very reason that the
employee failed to meet the employer’s legitimate expectations. The court therefore
rejects Sanders’s second objection and adopts the R&R’s finding that Sanders failed to
establish a prima facie case of wrongful discharge under the ADA.

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Because the court finds that Sanders does not present sufficient evidence to
establish a prima facie case, it affirms the R&R without reaching Sanders’s third
objection.
IV. CONCLUSION
For the foregoing reasons the court AFFIRMS the R&R and GRANTS the
motion for summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 25, 2020
Charleston, South Carolina

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