Howell v. Holland et al
Filing
103
ORDER adopting 92 Report and Recommendation; Defendant McLeod's 55 motion for summary judgment is GRANTED as to Plaintiff's failure to accommodate and retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. Plaintiff's 57 motion for summary judgment is DENIED as to Plaintiff's failure to accommodate and retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. P ursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise jurisdiction over the remaining state law claims against McLeod and Dr. Holland. Because this Court declines to exercise jurisdiction over the remaining state law claims, the Cour t does not make any findings with respect to the state law claims and declines to rule on either Defendant Holland's 56 motion for summary judgment or Plaintiff's 57 motion for summary judgment to the extent it pertains to Plaintiff 9;s state law claims against McLeod and Dr. Holland. The remaining state law claims in this case against McLeod and Dr. Holland are hereby REMANDED to the South Carolina Court of Common Pleas for the Twelfth Judicial Circuit in Florence County,where this case was originally filed. Signed by the Honorable R. Bryan Harwell on 2/23/2015. (hcic, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
James Odell Howell, Jr.,
)
)
Plaintiff,
)
)
v.
)
)
Dr. Fred Holland; McLeod Regional )
Medical Center of the Pee Dee, Inc., )
)
Defendants.
)
_____________________________ )
Civil Action No.: 4:13-cv-00295-RBH
ORDER
This case was originally filed in the Court of Common Pleas for Florence County, South
Carolina. Plaintiff, James Odell Howell, Jr., alleged claims against Defendant, Dr. Fred Holland
(“Dr. Holland”) and McLeod Regional Medical Center of the Pee Dee, Inc. (“McLeod”). Against
McLeod, Plaintiff alleged a federal employment discrimination and retaliation claim pursuant to the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. and a state law wrongful
discharge claim under South Carolina’s Workers’ Compensation Statute, S.C. Code Ann. § 41-1-80
et seq. Against Dr. Holland, Plaintiff alleged state law claims for assault, intentional infliction of
emotional distress, intentional interference with economic relations, and negligence/negligence per
se. McLeod removed the case to this Court on the basis of federal question jurisdiction, 28 U.S.C. §
1441, on February 1, 2013.
Pending before the Court are: 1) McLeod’s [Docket Entry #55] motion for summary
judgment; 2) Dr. Holland’s [Docket Entry #56] motion for summary judgment; and 3) Plaintiff’s
[Docket Entry #57] motion for summary judgment. This matter is before the court with the Report
and Recommendation [Docket Entry #92] of Magistrate Judge Thomas E. Rogers filed on August
12, 2014.1 The Magistrate Judge recommended that McLeod’s motion for summary judgment be
granted as to Plaintiff’s ADA claims and that Plaintiff’s motion for summary judgment be denied as
to the ADA claims. The Magistrate Judge recommended that the Court decline to exercise
supplemental jurisdiction over all remaining state law claims, including the claims on which Dr.
Holland moved for summary judgment, and remand the case to the Florence County Court of
Common Pleas for further adjudication. Plaintiff timely filed objections [Docket Entry #94] to the
Magistrate Judge’s Report and Recommendation and McLeod filed a reply to Plaintiff’s objections.
Neither Dr. Holland nor McLeod filed any objections to the Magistrate Judge’s Report and
Recommendation.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
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 R & R to which specific objection is made, and the Court may
accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge, or
recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The right to de novo review may be waived by the failure to file timely objections. Orpiano
v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). The Court need not conduct a de novo review when a
party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate’s proposed findings and recommendations.” Id. Moreover, in the absence of
1
This matter was referred to Magistrate Judge Rogers pursuant to 28 U.S.C. § 636(b)(1)(A) and
(B), and Local Civil Rule 73.02(B)(2)(g).
2
objections to the R & R, the Court is not required to give any explanation for adopting the
recommendation. Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983). However, in the absence of
objections, the Court must “‘satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d
310, 315 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee’s note).
Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a) (2010). “A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record . . .; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
When no genuine issue of any material fact exists, summary judgment is appropriate. See Shealy v.
Winston, 929 F.2d 1009, 1011 (4th Cir. 1991). The facts and inferences to be drawn from the
evidence must be viewed in the light most favorable to the non-moving party. Id. However, "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).
"Once the moving party has met [its] burden, the nonmoving party must come forward with
some evidence beyond the mere allegations contained in the pleadings to show that there is a
genuine issue for trial." Baber v. Hospital Corp. of Am., 977 F.2d 872, 874-75 (4th Cir. 1992). The
nonmoving party may not rely on beliefs, conjecture, unsupported speculation, or conclusory
3
allegations to defeat a motion for summary judgment. See Baber, 977 F.2d at 875. Rather, the
nonmoving party is required to submit evidence of specific facts by way of affidavits, depositions,
interrogatories, or admissions to demonstrate the existence of a genuine and material factual issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Factual Background
In 1989, Plaintiff became employed by McLeod as a staff perfusionist. A perfusionist
operates the heart and lung machine during open heart surgeries and is responsible for the blood
supply to the patient while on bypass. Plaintiff’s employment necessarily required him to work
closely with open heart surgeons. In either 2000 or 2001, Plaintiff was promoted to Director of
Perfusionists at McLeod. In 2007, Dr. Holland joined the cardiothoracic surgical group at McLeod
and began working with Plaintiff in the operating room. Plaintiff and Dr. Holland appeared to
others to have a good working relationship and also exercised together at the McLeod Health and
Fitness Center.
Plaintiff testified and alleged, however, that in April of 2010, he was afraid for his personal
safety and the safety of patients while he was working under Dr. Holland’s direction. Plaintiff
testified that he had seen outbursts by Dr. Holland and confrontations between Dr. Holland and
other physicians, during which Dr. Holland used profanity. On one occasion, Dr. Holland
approached Plaintiff in a manner that made Plaintiff feel threatened. During an internal
investigation into Dr. Holland’s conduct arising from another former employee’s complaints, other
employees of McLeod voiced concerns or complaints about Dr. Holland’s conduct.
In September of 2011, Plaintiff raised a concern about Dr. Holland’s use of a “pump sucker”
device during an open-heart surgery. Plaintiff spoke to Dr. Michael Rose, Vice President of
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Surgical Services, about the issue. Dr. Rose sent a letter to Dr. Holland outlining the concerns
raised by Plaintiff. Upon receipt of the letter from Dr. Rose, Plaintiff alleges that Dr. Holland called
Plaintiff and was extremely aggressive and abusive over the phone. Plaintiff testified and alleged
that Dr. Holland essentially told Plaintiff in a very threatening way to watch his back.
After the threatening phone call, Plaintiff informed Shannon Carr, Human Resource
Manager, that he refused to work with Dr. Holland. As the Director of Perfusionists, Plaintiff was
able to change the perfusionist schedule to avoid working with Dr. Holland. However, because Dr.
Holland was performing eighty percent of the open heart surgeries at the time, Plaintiff’s caseload
was substantially reduced creating a hardship on the other perfusionists, who were left to handle
eighty percent of all open heart cases.
From September 2011 through November 2011, McLeod conducted a second internal
investigation into the work environment in the cardiovascular operating room. The investigation
concluded that the cardiovascular operating room was not a hostile work environment and an equal
number of people complained about Dr. Jones, the other cardiothoracic surgeon, as complained
about Dr. Holland.
On October 24, 2011, Dr. Holland sent Plaintiff a letter apologizing for the threatening
phone call.
Plaintiff first sought treatment for anxiousness, sleeplessness, weight loss, and depression on
October 27, 2011. Dr. Krista Kozacki assessed Plaintiff with acute stress and fatigue/malaise. Dr.
Kozacki took Plaintiff out of work until January 2, 2012, and recommended Plaintiff obtain legal
advice. Plaintiff was placed on medical leave pursuant to the Family Medical Leave Act (“FMLA”)
beginning November 28, 2011.
5
In January of 2012, Plaintiff applied for workers’ compensation benefits. McLeod admitted
that Plaintiff sustained a work place mental injury and was in need of additional treatment. Plaintiff
also filed complaints with the S.C. Board of Medical Examiners and the Occupational Safety and
Health Administration.
On January 30, 2012, Plaintiff’s counsel formally requested accommodations pursuant to the
ADA that he not be required or scheduled to work with Dr. Holland. On January 31, 2012, McLeod
responded that Plaintiff could return to his regular full duties as Director of Perfusionists and Dr.
Irvin would accompany Plaintiff for a limited time in the operating room when Plaintiff was
required to work with Dr. Holland. McLeod also responded that Plaintiff could take a leave of
absence in accordance with McLeod’s Leave of Absence policy until he was comfortable returning
to perform the essential functions of his position, which would include working with Dr. Holland.
Under McLeod’s Leave of Absence policy, Plaintiff could extend his leave of absence beyond
FMLA leave until May 28, 2012. Plaintiff declined the accommodation that Dr. Irvin accompany
him in the operating room when Plaintiff was scheduled to work with Dr. Holland. Plaintiff,
instead, chose to remain on leave.
Plaintiff remained on FMLA leave until February 2012. On February 14, 2012, Plaintiff met
with Ms. Carr, Human Resource Manager, and informed her that he was ready to return to work
provided he did not have to work with Dr. Holland ever again. On February 15, 2012, Dr. Kozacki
released Plaintiff back to work but with the restriction that he not be required to work with Dr.
Holland. Dr. Kozacki’s work place restriction letter indicated that she had been treating Plaintiff for
depression, post-traumatic stress disorder, stress, fatigue/malaise, anxiety, and/or other
mental/emotional problems.
6
On February 21, 2012, Plaintiff’s counsel again wrote to McLeod requesting that Plaintiff no
longer be required to work with Dr. Holland pursuant to the ADA. The same day McLeod
responded that they could not accommodate Plaintiff’s request because Dr. Holland performed
eighty percent of the open heart surgeries for McLeod and Plaintiff’s restriction would make it
impossible for him to cover the necessary call for the perfusion department. McLeod stated that a
workplace accommodation was being offered through the opportunity to seek a job transfer to a
different department in McLeod. McLeod also stated that Plaintiff could remain on a leave of
absence under McLeod’s Leave of Absence policy until May 28, 2012. The response indicated that
unless Plaintiff was able to secure a transfer to another department that could accommodate his
restriction by May 28, 2012, his employment with McLeod would be discontinued.
On April 25, 2012, Plaintiff completed an initial inquiry questionnaire with the South
Carolina Human Affairs Commission. Declining to return to work with Dr. Holland, Plaintiff did
not secure a transfer to another department within McLeod and was terminated effective May 28,
2012. On June 10, 2012, Plaintiff filed a Charge of Discrimination with the EEOC alleging denial
of reasonable accommodations due to disability and retaliatory discharge. Plaintiff received a
Notice of Right to Sue from SCHAC dated October 30, 2012, and Dismissal and Notice of Rights
from the EEOC dated December 21, 2012. This suit followed.
Discussion
I.
Failure to Accommodate Claim under the ADA
The Magistrate Judge recommended that summary judgment be granted as to Plaintiff’s
failure to accommodate claim because: 1) Plaintiff was not disabled under the ADA; 2) Plaintiff was
not a “qualified individual” with a disability; and 3) Plaintiff failed to present evidence sufficient to
7
show that McLeod failed to make reasonable accommodations that would have allowed Plaintiff to
remain in his position as a perfusionist.
The Magistrate Judge found that Plaintiff was not disabled under the ADA because Plaintiff
failed to show that being unable to work with Dr. Holland amounted to a substantial limitation of
one or more major life activities. The Magistrate Judge stated that “[i]t strains credulity to conclude
that Plaintiff is substantially limited in the major life activity of working simply because he cannot
work with Dr. Holland.” [Report and Recommendation, Docket Entry #92, pg. 13]. The Magistrate
Judge cited several cases that held that not being able to work with a particular individual or
supervisor does not substantially limit the major life activity of working. See Schneiker v. Fortis Ins.
Co., 200 F.3d 1055, 1062 (7th Cir. 2000); Weiler v. Household Fin. Corp., 101 F.3d 519, 525 (7th
Cir. 1996); Hatfield v. Quantum Chem. Corp., 920 F. Supp. 108, 110 (S.D. Tex. 1996); Flynt v.
Biogen Idec, Inc., No.: 3:11-cv-22-HTW-LRA, 2012 WL 4588570, at *4-5 (S.D. Miss. September
30, 2012). Plaintiff has not attempted to distinguish the cases relied on by the Magistrate Judge, but
simply restates the arguments, word for word, that he made in response to McLeod’s motion for
summary judgment. Compare [Docket Entry #69, Plaintiff’s Response in Opposition to McLeod’s
Motion for Summary Judgment, pgs. 14-20] with [Docket Entry #94, Plaintiff’s Objections to
Report and Recommendation, pgs. 1-6]. The Court is not required to conduct a de novo review
when a party makes only “general and conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate’s proposed findings and recommendations.” Orpiano v. Johnson,
687 F.2d 44, 47 (4th Cir. 1982).
In a conclusory fashion, Plaintiff states that since his impairments prevented him from
“working, concentrating, thinking, and interacting with others,” he was disabled under the ADA.
8
According to Dr. Kozacki, Plaintiff’s only restriction, however, was working with Dr. Holland. Dr.
Kozacki did not indicate any other restrictions related to any other major life activities other than
working with Dr. Holland. To “be substantially limited in the major life activity of working . . . one
must be precluded from more than one type of job, a specialized job, or a particular job of choice.”
Taylor v. Federal Express Corp., 429 F.3d 461, 464 (4th Cir. 2005). If jobs utilizing an individual’s
skills are available, one is not precluded from a substantial class of jobs. Taylor, 429 F.3d at 464. In
this case, Plaintiff does not dispute that jobs utilizing his individual skills were available. Indeed,
Plaintiff found work as a perfusionist at the UVA Medical Center two months before his termination
at McLeod and continues to hold that position. [Report and Recommendation, Docket Entry #92,
pg. 14]. Plaintiff, therefore, has failed to demonstrate that he was substantially limited in one or
more major life activities.
Plaintiff also rehashes his summary judgment argument that he is disabled under the ADA
because McLeod regarded him as having a disability. “The ADA protects from employment
discrimination individuals who are regarded or perceived, albeit erroneously, as having an
impairment that substantially limits one or more of the major life activities, just as it protects
persons who actually have an impairment that substantially limits one or more of the major life
activities.” Runnebaum v. Nationsbank, 123 F.3d 156, 172 (4th Cir.1997), overruled on other
grounds by Bragdon v. Abbott, 524 U.S. 624, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). “An
individual meets the requirement of ‘being regarded as having such an impairment’ if the individual
establishes that he or she has been subjected to an action prohibited under this chapter because of an
actual or perceived physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A). Plaintiff argues that McLeod
9
regarded him as having a disability because McLeod recognized his impairment but did not
accommodate his request to not work with Dr. Holland. Plaintiff argues that viewing the evidence
in the light most favorable to Mr. Howell, a reasonable jury could conclude that Plaintiff was
discriminated against because he was regarded as being disabled. However, the fact that McLeod
welcomed Plaintiff to continue performing as the Director of Perfusionists indicates that McLeod
did not regard or perceive Plaintiff as having an impairment that substantially limited a major life
activity. Plaintiff has failed to present evidence sufficient to create a genuine issue of material fact
that McLeod regarded or perceived that Plaintiff’s inability to work with Dr. Holland substantially
limited the major life activity of working.
Because Plaintiff has failed to show that he has a disability under the ADA, his failure to
accommodate claim fails and summary judgment in favor of McLeod is appropriate. Additionally,
the Magistrate Judge found that, assuming Plaintiff does have a disability, he has failed to show that
he was a “qualified individual” or that McLeod failed to make a reasonable accommodation that
would have allowed Plaintiff to remain in his position as Director of Perfusionists. The Court has
reviewed Plaintiff’s objections to those portions of the Report and Recommendation and again notes
that the objections are word for word restatements of the arguments made in response to McLeod’s
motion for summary judgment. Compare [Docket Entry #69, Plaintiff’s Response in Opposition to
McLeod’s Motion for Summary Judgment, pgs. 18-20] with [Docket Entry #94, Plaintiff’s
Objections to Report and Recommendation, pgs. 3-6]. Specific objections are necessary in order to
focus the court's attention on disputed issues. Thomas v. Arn, 474 U.S. 140, 147-48 (1985). “A
general objection, or one that merely restates the arguments previously presented is not sufficient to
alert the court to alleged errors on the part of the magistrate judge.” VanDiver v. Martin, 304
10
F.Supp.2d 934, 937 (E.D. Mich. 2004). “An ‘objection’ that does nothing more than state a
disagreement with a magistrate's suggested resolution, or simply summarizes what has been
presented before, is not an ‘objection’ as that term is used in this context. VanDiver, 304 F.Supp.2d
at 937. Because general objections do not direct the court's attention to any specific portions of the
report, general objections to a magistrate judge's report are tantamount to a failure to object.
Howard v. Secretary of Health & Human Servs., 932 F.2d 505, 509 (6th Cir.1991); see also
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.1982) (de novo review not required where objections
are general and conclusory). A failure to object waives appellate review. Wright v. Collins, 766
F.2d 841, 845-46 (4th Cir.1985). Nevertheless, taking Plaintiff’s arguments into consideration, the
Court agrees with the Magistrate Judge’s analysis and finding that Plaintiff was not a “qualified
individual” and that McLeod did not fail to reasonably accommodate Plaintiff’s alleged disability.
As set forth in the Report and Recommendation, one of the “essential functions” of the job was to
work with Dr. Holland who performed the majority of the open heart surgeries, which Plaintiff
refused to do.
Accordingly, McLeod is entitled to summary judgment on Plaintiff’s failure to accommodate
claim under the ADA.
II.
Retaliation Claim under the ADA
The Magistrate Judge found that Plaintiff’s retaliation claim was due to be dismissed
because Plaintiff could not establish the causation element of his retaliation claim, i.e. that he would
not have been terminated “but for” his protected activity. Specifically, the Magistrate Judge found
that Plaintiff was warned on February 21, 2012, that his medical leave of absence would expire on
May 28, 2012, and if he was unable to secure another position within McLeod that could
11
accommodate his restriction by that date, his employment would be discontinued. The Magistrate
Judge stated that “[c]ausation requires the employer’s action to be the consequence of the protected
activities and of nothing else.” Bray v. Tenax Corp., 905 F.Supp. 324, 328 (E.D.N.C. 1995). The
Magistrate Judge concluded that Plaintiff’s termination was not the consequence of any protected
activity because his termination date coincided with the expiration of his medical leave, a date that
was decided prior to any protected activity.
Again, Plaintiff’s objections restate the arguments submitted to the Magistrate Judge in
response to McLeod’s motion for summary judgment. Compare [Docket Entry #69, Plaintiff’s
Response in Opposition to McLeod’s Motion for Summary Judgment, pgs. 20-23] with [Docket
Entry #94, Plaintiff’s Objections to Report and Recommendation, pgs. 6-9]. Plaintiff does not
direct the Court to any specific error in the Magistrate Judge’s analysis other than stating a
disagreement with the outcome. As he argued before the Magistrate Judge, Plaintiff argues that the
temporal proximity between his initial complaints of unlawful conduct, his requests for
accommodation, his filing of the initial inquiry with the South Carolina Human Affairs
Commission, and his termination is sufficient to satisfy causation.
To establish a prima facie retaliation claim under the ADA, plaintiff must allege (1) that
they engaged in protected conduct, (2) that they suffered an adverse action, and (3) that a causal link
exists between the protected conduct and the adverse action. Rhoads v. F.D.I.C., 257 F.3d 373, 392
(4th Cir.2001). If the plaintiff is successful in establishing a prima facie case, the burden shifts to
the defendant to provide a legitimate, nondiscriminatory reason for the adverse employment action.
Perry v. Computer Sciences Corp., 429 Fed.Appx. 218, 220, 2011 WL 1750293, at *1 (4th Cir. May
9, 2011); Anderson v. Discovery Communications, LLC, No.: 11-2195, 2013 WL 1364345, at *5
12
(4th Cir. May 3, 2013) (citing Laber v. Harvey, 438 F.3d 404, 432 (4th Cir. 2006)); Ennis v. Nat’l
Ass’n of Bus. and Educ. Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995). If the defendant provides
evidence of a nondiscriminatory reason for its action, the plaintiff, who bears the ultimate burden of
persuasion, must show by a preponderance of the evidence that the proffered reason was a pretext
for discrimination or retaliation. Perry, 2011 WL 1750293, at *1 (citing Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 146–48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); Laber, 438
F.3d at 432).
Assuming arguendo that Plaintiff has established a prima facie case of retaliation,2 Plaintiff
has not met his burden of establishing that McLeod’s legitimate, nondiscriminatory reason for
Plaintiff’s termination was pretextual. McLeod states that Plaintiff was terminated consistent with
its leave of absence policy after Plaintiff did not return to his position and it was clear that additional
leave was pointless. Plaintiff argues that the temporal proximity between his filing of complaints
with the S.C. Human Affairs Commission and Equal Employment Opportunity Commission and his
termination is sufficient to establish pretext. Plaintiff also argues that comments from Dr. Rose to
“be careful” and that there “will be all kinds of collateral damage from these actions” are indicative
of pretext. Plaintiff points to his exemplary performance records and the fact that the cardiac
2
The Court agrees with the Magistrate Judge that there is insufficient evidence of a causal
connection between Plaintiff’s filing of the initial complaint or charge of discrimination and his termination.
Additionally, there is some authority that an unreasonable request for accommodation may not even be a
“protected activity” to justify a retaliation claim. See Williams v. Eastside Lumberyard and Supply Co.,
Inc., 190 F. Supp. 2d 1104, 1122 n. 15 (S.D. Ill. 2001) (questioning whether the ADA anti-retaliatory
provisions would consider requesting unreasonable accommodations as “protected activity”). Regardless,
even assuming Plaintiff can establish a prima facie case of retaliation, as explained below, Plaintiff fails to
set forth evidence from which a reasonable juror could conclude that McLeod’s stated reason for his
termination was pretextual.
13
service line under Dr. Holland generated slightly less than $40,000,000.00 per year for McLeod as
further evidence that McLeod’s stated reason for his termination was pretextual.
By letter from Ms. Carr dated February 21, 2012, Plaintiff was notified that his employment
with McLeod would end upon the expiration of his medical leave if he was unable to secure a
transfer to another position within McLeod that could accommodate his inability to work with Dr.
Holland. The February 21, 2012 letter from Ms. Carr also indicated that because Dr. Holland
performed eighty percent of the open heart surgeries for McLeod, accommodating Plaintiff’s request
to not work with Dr. Holland would make it impossible to cover the necessary call for the perfusion
department. No one disputes that Dr. Holland performed the majority of the surgeries. Ms. Carr
informed Plaintiff that returning to his position as Director of Perfusionists was not practical
considering Plaintiff’s restriction.
Plaintiff’s request not to work with Dr. Holland was unreasonable given the sheer volume of
operations performed by Dr. Holland. Plaintiff has offered no evidence to dispute McLeod’s claim
that accommodating Plaintiff’s request not to work with Dr. Holland would place an undue burden
on the perfusion department making it impossible for the department to meet the demands of the
hospital. “[T]he ADA does not require an employer to reallocate essential job functions or assign
an employee ‘permanent light duty.’” Crabill v. Charlotte Mecklenburg Bd. of Educ., 423
Fed.Appx. 314, 323, 2011 WL 1491230, at *8 (4th Cir. April 20, 2011). “An accommodation that
would require other employees to work harder is unreasonable.” Crabill, 2011 WL 1491230, at *8;
See also Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995) (stating “[a]n accommodation
that would result in other employees having to worker harder or longer hours is not required”).
McLeod was not required to accommodate Plaintiff’s unreasonable request and has offered a
14
legitimate, nondiscriminatory business reason for Plaintiff’s termination - his refusal or inability to
return to work and perform the essential functions of his job following the expiration of his medical
leave.
Plaintiff, on the other hand, has offered nothing more than mere unsupported speculation
that McLeod’s stated reason for his termination was pretextual. “Unsupported speculation is not
sufficient to defeat a summary judgment motion.” Felty v. Graves-Humphreys Co., 818 F.2d 1126,
1128 (4th Cir.1987). First, Plaintiff’s temporal proximity argument regarding pretext is speculative
because the undisputed evidence indicates that McLeod was unaware of Plaintiff’s initial SCHAC
inquiry until well after Plaintiff’s termination. Plaintiff has offered no evidence to suggest that
McLeod knew Plaintiff had initiated a formal complaint with SCHAC or the EEOC until McLeod
was served with Plaintiff’s charge on June 18, 2012. Second, the comments from Dr. Rose are too
vague to be of any consequence. As such, they do nothing to discredit McLeod’s nondiscriminatory
explanation for Plaintiff’s termination. Plaintiff does not explain the significance of the amount of
money generated by McLeod’s cardiac services line but leaves the Court to speculate as to its
importance. Finally, there is no dispute that Plaintiff was a good employee for McLeod and that
many people complained about Dr. Holland. However, this fact alone does not suggest that McLeod
terminated Plaintiff for any reason other than his refusal to return to perform the essential functions
of his job after his medical leave expired. Viewing the evidence in the light most favorable to the
Plaintiff, no reasonable juror could conclude that McLeod’s legitimate, nondiscriminatory reason for
terminating Plaintiff was pretextual. See Anderson, 477 U.S. at 252 (stating “there must be evidence
on which the jury could reasonably find for the plaintiff”). McLeod is, therefore, entitled to
summary judgment on Plaintiff’s claim of retaliation under the ADA.
15
III.
State Law Claims
Because summary judgment in favor of McLeod on Plaintiff’s ADA claims is appropriate,
only state law claims remain. Plaintiff has alleged a state law wrongful discharge claim under the
South Carolina Workers’ Compensation Statute, S.C. Code Ann. § 41-1-80 et seq, against McLeod
and claims for assault, intentional infliction of emotional distress, intentional interference with
economic relations, and negligence/negligence per se against Dr. Holland. The Magistrate Judge
recommended declining to retain jurisdiction over the remaining state law claims and remanding the
case to the Florence County Court of Common Pleas. Under 28 U.S.C. § 1367(c)(3), the district
court may decline to exercise supplemental jurisdiction over a claim when the district court has
dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). Considering
judicial economy, comity, fairness to the Plaintiff, and the fact that remand will not adversely
impact the Plaintiff’s ability to pursue those claims in the state court system, the Court declines to
exercise supplemental jurisdiction over the remaining state law claims against McLeod and Dr.
Holland. See Shekoyan v. Sibley Intern., 409 F.3d 414, 424 (D.C. Cir. 2005).
Conclusion
Having reviewed the record and applicable law, the Court agrees with the outcome reached
by the Magistrate Judge. The Court has reviewed Plaintiff’s objections and finds that they are
without merit and mere restatements of the arguments previously made to the Magistrate Judge.
The court overrules Plaintiff’s objections and adopts and incorporates by reference the Report and
Recommendation [Docket Entry #92] of the Magistrate Judge. Defendant McLeod’s [Docket Entry
#55] motion for summary judgment is GRANTED as to Plaintiff’s failure to accommodate and
retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.
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Plaintiff’s [Docket Entry #57] motion for summary judgment is DENIED as to Plaintiff’s failure to
accommodate and retaliation claims under the Americans with Disabilities Act (ADA), 42 U.S.C. §
12101, et seq. Pursuant to 28 U.S.C. § 1367(c)(3), the Court declines to exercise jurisdiction over
the remaining state law claims against McLeod and Dr. Holland. Because this Court declines to
exercise jurisdiction over the remaining state law claims, the Court does not make any findings with
respect to the state law claims and declines to rule on either Defendant Holland’s [Docket Entry
#56] motion for summary judgment or Plaintiff’s [Docket Entry #57] motion for summary judgment
to the extent it pertains to Plaintiff’s state law claims against McLeod and Dr. Holland. The
remaining state law claims in this case against McLeod and Dr. Holland are hereby REMANDED
to the South Carolina Court of Common Pleas for the Twelfth Judicial Circuit in Florence County,
where this case was originally filed. A certified copy of this Order remanding the case shall be
mailed by the Clerk of this Court to the Clerk of Court for the Twelfth Judicial Circuit in Florence
County.
IT IS SO ORDERED.
February 23, 2015
Florence, South Carolina
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
17
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