Smith v. The Strayer University Corporation
Filing
65
MEMORANDUM OPINION re: Deft's Motion for Summary Judgment. Signed by District Judge James C. Cacheris on 01/13/15. (pmil, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
CHERIE D. SMITH,
Plaintiff,
v.
THE STRAYER UNIVERSITY
CORPORATION,
Defendant.
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M E M O R A N D U M
1:14cv565 (JCC/JFA)
O P I N I O N
This action, brought under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., is before
the Court on Defendant’s Motion for Summary Judgment, filed
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
[Dkt. 49.]
For the following reasons, the Court will grant the
motion in part as to Counts Two, Three, and Four. Otherwise, the
motion is denied as to Count One.
I. Material Facts
The following material facts, as recited in
Defendant’s Statement of Facts [Dkt. 50-1] (“Def.’s Stmt.”) and
Plaintiff’s Statement of Facts [Dkt. 60 at 3-14] (“Pl.’s
Stmt.”), are undisputed unless otherwise noted.1
1
For citation purposes, the Court collectively refers to undisputed factual
statements of both parties as “Stmt.” with the corresponding paragraph. For
all exhibit numbers and page numbers, the Court uses the numbers as set forth
by the parties, respectively, and not the pagination from CM/ECF.
1
In 2001, Defendant Strayer University Corporation
(“Defendant”), a private university with a student body that
consists primarily of working adults, hired Plaintiff Cherie D.
Smith (“Plaintiff”) as a part-time Academic Assistant at the
Loudoun Campus location.
(Stmt. ¶¶ 1-2.)
In 2002, Plaintiff
was promoted to the position of Learning Resource Center (“LRC”)
Manager/Coordinator (“LRCM”).
2006, Plaintiff resigned.
(Id. at ¶ 2.)
(Id.)
On January 27,
In March of 2007, Plaintiff
was rehired and worked for Defendant as LRCM until her
termination on December 29, 2012.
(Id.)
This litigation
primarily concerns events that occurred during Plaintiff’s
latter period of employment, mainly during 2011 and 2012.
As LRCM, Plaintiff was responsible for managing the
LRC and supervising other LRC staff.
Essential functions of the
LRCM position include: (1) ensuring the proper functioning of
the LRC; (2) assisting students in using the LRC; (3)
participating in student orientations; and (4) delivering
presentations to students in targeted classes.
(Stmt. ¶ 5.)
Under Defendant’s written policy, only LRCMs, Lab Monitors, LRC
Assistants and Campus IT Specialists were authorized to open and
staff the LRC.
(Def.’s Mem. in Supp. of Mot. for Summ. J. [Dkt.
50] (“Def.’s Mem.”) Ex. 5.)
As of July 18, 2011, Defendant’s
campuses with one full-time LRCM and one part-time employee
2
operated the LRC from 2:00 p.m. to 10:00 p.m. Monday through
Thursday, 12:00 p.m. to 4:00 p.m. on Friday, and 9:00 a.m. to
1:00 p.m. on Saturday.
(Def.’s Mem. Exs. 5, 7.)
During the
time period relevant to this litigation, the Loudoun Campus LRC
staff was small and consisted of full-time LRCM Plaintiff, parttime LRC Assistant Florence Poole, part-time Loudoun Campus IT
Support Specialist Maurice Paul, and part-time Computer Lab
Monitor Daniel Lim.2
In January of 2012, Defendant hired Richard Corbi as
the Dean for the Loudoun Campus (“Dean Corbi”) and he
immediately sought to improve the performance of the Loudoun
Campus in the face of several challenges.
(Stmt. ¶ 6.)
On one
front, Dean Corbi implemented staffing changes to the LRC.
First, in May of 2012, Dean Corbi reassigned Florence Poole from
her position as part-time LRC Assistant to a position as parttime Academic Assistant.3
(Id. at ¶ 8.)
On October 15, 2012, IT
Support Specialist Maurice Paul was terminated.
(Id. at ¶ 10.)
Thus, as of October 15, 2012, the LRC staff consisted of
Plaintiff as the full-time LRCM and Daniel Lim as a part-time
2
The Court construes the makeup of the LRC staff by reading the Amended
Complaint and the statements of fact, even though it was not explicitly
referenced by either party in the relevant papers now before the Court. It
is also unclear based on the record before the Court whether the IT Support
Specialist was full-time or part-time, but the time records suggest part-time
work. (Pl.’s Mem. in Opp’n to Mot. for Summ. J. (“Pl.’s Mem.”) Ex. 25.)
3
The reason for Poole’s reassignment is disputed. Defendant contends Poole
was reassigned to assist with an “academics backlog,” while Plaintiff
contends Dean Corbi unilaterally and impermissibly reassigned Poole to “clean
his office” and to prevent his full-time Academic Assistant from resigning.
3
Computer Lab Monitor.4
The staffing of the LRC is relevant to the disposition
of this motion because it meant that the Loudoun Campus LRC
operated until 10:00 p.m. Monday through Thursday.
Plaintiff alleges that she had several disabilities
that prevented her from working into the night, including a
long-standing seizure disorder, anxiety disorder, bipolar
disorder, and impaired vision at night due to cataracts, myopia,
presbyopia, and/or photophobia.
(Am. Compl. [Dkt. 15] ¶ 25.)
Plaintiff contends that she informed Dean Corbi as early as the
spring of 2012 that her disabilities prevented her from working
night hours.
(Pl.’s Stmt. ¶ 7.)
However, based on the record
now before the Court, this material fact remains disputed.
The material facts surrounding Plaintiff’s work
schedule are also in dispute.
When Plaintiff was rehired in
March of 2007, she originally worked as the LRCM Monday through
Friday from 9:00 a.m. to 6:00 p.m.
(Am. Compl. ¶ 24.)
Defendant contends that Plaintiff knew by July of 2012 that Dean
Corbi expected her to work during the evening hours.
Stmt. ¶ 7.)
(Def.’s
By September of 2012, Defendant argues that
Plaintiff agreed to work Monday nights when her husband did not
4
Plaintiff contends that as of October 15, 2012, now Academic Assistant
Florence Poole was available and qualified to “provide coverage in the LRC,”
but it remains undisputed that the LRC staff officially consisted of
Plaintiff and part-time Computer Lab Monitor Daniel Lim after Florence
Poole’s reassignment and Maurice Paul’s termination.
4
work so he could drive her home from work, and that she agreed
to begin working two or three nights per week once her husband
retired in November.5
(Id. at ¶ 9.)
Defendant further contends
that once IT Support Specialist Maurice Paul was terminated in
October of 2012, Plaintiff agreed to immediately start working
nights, and her husband stopped working in mid-October to
accommodate this schedule change but officially retired on
November 1, 2012.
(Id. at ¶¶ 10-12.)
Conversely, Plaintiff asserts that by September of
2012, Dean Corbi “made” her work Monday nights with full
knowledge and in disregard of her disabilities.
9.)
(Pl.’s Stmt. ¶
Plaintiff further contends the she acquiesced and
“reluctantly said yes” to the new night schedule after an
intimidating meeting with Dean Corbi out of fear of losing her
job.
(Id. at ¶ 11.)
It is undisputed, however, that between November 5,
2012 and December 29, 2012, Plaintiff worked from 1:00 p.m. to
10:00 p.m. Monday through Wednesday, did not work on Thursday
and Friday, and worked from 9:00 a.m. to 5:00 p.m. on Saturday.
(Stmt. ¶ 13.)
5
Plaintiff and her husband shared one car, and she depended on him to drive
at night due to her vision disabilities. Before her husband retired,
Plaintiff had commuted into work early in the morning with her husband, and
would sleep at a friend’s house before her Strayer shift. In the afternoons,
Plaintiff’s husband would wait at Florence Poole’s house, or the Loudoun
Campus, to drive Plaintiff home once her shift ended. (Stmt. ¶¶ 15, 16.)
5
While Plaintiff received some “corrective action
forms” in 2003 during her initial period of employment with
Defendant, she also received praise from students in 2009 and
2010, and positive performance reviews from other supervisors or
regional managers in 2010, 2011, and 2012.
(Stmt. ¶ 3.)
On
August 1, 2012, however, Dean Corbi prepared a Mid-Year
Evaluation for Plaintiff and rated her performance as 2.03 on a
1-5 scale, five being the best, which meant “improvement [was]
required.”
(Id. at ¶ 18.)
On November 6, 2012, Dean Corbi placed Plaintiff on a
Performance Improvement Plan (“PIP”) that was to expire
approximately thirty (30) days later on December 12, 2012.
(Stmt. ¶ 21.)
The PIP counseled Plaintiff regarding her
unsatisfactory classroom presentations, poor customer service,
failure to communicate in a positive manner, and failure to
accurately record her time.6
(Id.)
Throughout the PIP period,
Plaintiff feared she would lose her job and was aware that Dean
Corbi continued to consider her performance unsatisfactory and
noted no improvement, even though she worked “diligently” toward
completing the PIP objectives and improving her performance.
(Id. at ¶¶ 22-24.)
On December 4, 2012, almost one month after the PIP
6
Plaintiff disputes the accuracy and validity of the PIP.
21.)
6
(Pl.’s Stmt. ¶
was initiated and eight days before it was due to expire,
Plaintiff submitted a request to Dean Corbi that she be allowed
to work a “day shift,” without proposing specific hours.
¶ 26.)
(Stmt.
On December 18, 2012, after providing Plaintiff the
necessary ADA forms, Defendant received a formal “Request for
Accommodation” that clarified the original request.7
27-28.)
(Id. at ¶¶
On December 20, 2012, Defendant denied Plaintiff’s
Request for Accommodation, a decision that did not involve Dean
Corbi.
(Id. at ¶ 29.)
After a final progress check on December
29, 2012, Defendant was terminated for poor performance.8
(Id.
at ¶ 25.)
On June 18, 2013, Plaintiff initially filed a Charge
of Discrimination with the Equal Employment Opportunity
Commission (“EEOC”) alleging Defendant discriminated and
retaliated against her because of her disabilities from November
of 2009 until December of 2012.
(Def.’s Mem. Ex. 12.)
She
requested that the Charge of Discrimination be filed with both
the EEOC and the state or local agency.
(Id.)
On March 26,
2014, the EEOC issued Plaintiff a “Right to Sue” letter.
7
(Am.
Defendant’s specific response to Plaintiff’s initial December 4th request is
disputed. Defendant contends that it took immediate action, sending her ADA
forms, evaluating whether it could staff the LRC consistent with her request,
and contacting her to inquire about whether she wanted to apply for FMLA
leave. (Def.’s Stmt. ¶ 27.) Plaintiff contends that although Defendant sent
her the ADA forms, it did not take identifiable actions to “evaluate”
Plaintiff’s request pursuant to her medical documentation, or to consider
possible accommodations or alternatives. (Pl.’s Stmt. ¶ 27.)
8
Naturally, Plaintiff also disputes that she was terminated for legitimate
performance reasons. (Pl.’s Stmt. ¶ 25.)
7
Compl. ¶ 17.)
On May 15, 2014, Plaintiff filed her original
complaint under the ADA initiating this matter.
[Dkt. 1.]
On
August 26, 2014, by agreement of the parties and with leave of
Court, Plaintiff filed an Amended Complaint.
[Dkt. 15.]
In the Amended Complaint, Plaintiff asserts four
counts against Defendant under the ADA: (1) failure to
accommodate her disability (Am. Compl. ¶¶ 107-119); (2)
discrimination by harassment and creating a hostile work
environment during her employment (id. at ¶¶ 120-128); (3)
discrimination in the termination of her employment (id. at ¶¶
129-137); and (4) retaliation for engaging in protected activity
(id. at ¶¶ 138-146).
The matter is now before the Court on
Defendant’s Motion for Summary Judgment.
II. Standard of Review
Summary judgment is appropriate only if the record
shows that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”
Fed. R. Civ. P. 56(c); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); Evans v. Techs.
Applications & Serv., Co., 80 F.3d 954, 958-59 (4th Cir. 1996)
(citations omitted).
In reviewing the record on summary
judgment, “the court must draw any inferences in the light most
favorable to the non-movant [and] determine whether the record
8
taken as a whole could lead a reasonable trier of fact to find
for the non-movant.”
Brock v. Entre Computer Ctrs., 933 F.2d
1253, 1259 (4th Cir. 1991) (citations omitted).
Once a motion for summary judgment is properly made
and supported, the opposing party has the burden of showing that
a genuine dispute exists.
See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); see also Ray
Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673 F.3d 294,
299 (4th Cir. 2012) (stating the opposing party must “come
forward with specific facts showing that there is a genuine
issue for trial.”) (citations and internal quotations omitted).
III. Analysis
Defendant moves for summary judgment and argues it is
entitled to judgment as a matter of law as to each of the four
counts in Plaintiff’s Amended Complaint.
For the following
reasons, the motion is granted in part and denied in part.
A. Statute of Limitations Period
As a threshold matter, Defendant contends the 180-day
statute of limitations period applies, not the 300-day
limitations period, because Plaintiff filed her initial charge
of discrimination with the EEOC and not with a state or local
agency.
(Def.’s Mem. at 4.)
Thus, Defendant argues the Court
can only consider acts that allegedly occurred on or subsequent
9
to December 20, 2012, which is 180-days prior to the date she
filed the charge of discrimination with the EEOC.
(Id.)
Plaintiff maintains the 300-day statute of limitations period is
appropriate.
The Court agrees.
Virginia is a “deferral state” under Title VII and the
ADA, and thus, the limitation period for filing a charge with
the EEOC is 300 days from the date of discrimination.
Tinsley
v. First Union Nat’l Bank, 155 F.3d 435, 440 (4th Cir. 1998),
overruled on other grounds by Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101 (2002); see also Johnson v. Portfolio
Recovery Assocs., LLC, 682 F. Supp. 2d 560, 584 (E.D. Va. 2009)
(“Virginia has its own enforcement agency; therefore, the charge
must be filed within 300 days after the alleged unlawful
employment practice occurred.”) (internal quotation marks and
citations omitted).
Plaintiff filed her charge with the EEOC on
June 18, 2013, wherein she requested that it also be filed with
the state or local agency.
(Def.’s Mem. Ex. 12.)
Accordingly, the Court will not consider discrete acts
of discrimination that allegedly occurred before August 22,
2012, more than 300 days before Plaintiff filed the charge of
discrimination.
Nat’l R.R. Passenger Corp., 536 U.S. at 105
(“We hold that the statute precludes recovery for discrete acts
of discrimination or retaliation that occur outside the
10
statutory period.”).
Conversely, any allegations of hostile
work environment are not precluded by the 300-day limitations
period, and they may be properly considered by the Court.
Id.
at 122 (“A charge alleging a hostile work environment claim,
however, will not be time barred so long as all acts which
constitute the claim are part of the same unlawful employment
practice and at least one act falls within the time period.”).
B. Claims under the ADA
In the employment discrimination context, including
under the ADA, to avoid summary judgment in defendant’s favor, a
plaintiff must either produce direct or circumstantial evidence
of defendant’s discriminatory motivations, or proceed under the
two-step “pretext” framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973).
See Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 284-85 (4th Cir.
2004); see also Ennis v. Nat’l Assoc. of Bus. & Educational
Radio, Inc., 53 F.3d 55, 58 (4th Cir. 1995) (“[T]he McDonnell
Douglas scheme of proof does apply to appropriate claims under
the ADA.”).
Finding no direct or circumstantial evidence of
discrimination in the record, the Court applies the familiar
McDonnell Douglas burden-shifting framework.9
Ennis, 53 F.3d at
57-58.
9
The Court notes that neither party states whether the McDougall-Douglas
framework applies. Without direct or circumstantial evidence of
discrimination, however, this analysis is appropriate.
11
Under the McDonnell Douglas proof scheme,
the plaintiff has the initial burden of
proving a prima facie case of discrimination
by a preponderance of the evidence. If the
plaintiff succeeds in proving the prima
facie case, the burden shifts to the
defendant to articulate some legitimate,
nondiscriminatory
explanation
which,
if
believed by the trier of fact, would support
a finding that unlawful discrimination was
not the cause of the employment action. If
the
defendant
meets
this
burden
of
production, the presumption created by the
prima facie case “drops out of the picture,”
and the plaintiff bears the ultimate burden
of proving that she has been the victim of
intentional discrimination.
Id. at 58 (citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
113 S. Ct. 2742, 2746-49 (1993) (holding that prima facie case
plus disbelief of employer’s asserted justification for
employment action is not necessarily sufficient to establish
violation; summary judgment is appropriate unless plaintiff
presents adequate evidence that employer unlawfully
discriminated)).
With this standard in mind, the Court now
considers each of Plaintiff’s four counts in the Amended
Complaint.
1. Failure to Accommodate Disability (Count One)
To establish a prima facie case of failure to
accommodate a disability under the ADA, Plaintiff must
establish: (1) she was an individual who had a disability within
the meaning of the statute; (2) Defendant had notice of her
12
disability; (3) with reasonable accommodation she could perform
the essential functions of the position; and (4) Defendant
refused to make such accommodations.
Wilson v. Dollar General
Corp., 717 F.3d 337, 345 (4th Cir. 2013) (quoting Rhoads v. Fed.
Deposit Ins. Corp., 257 F.3d 373, 387 n.11 (4th Cir. 2001)
(quoting Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d
1, 6 (2d Cir. 1999))).
At issue is Defendant’s denial of Plaintiff’s Request
for Accommodation, initially submitted to Dean Corbi on December
4, 2012, formally filed with Defendant on December 18, 2012, and
denied by Defendant without Dean Corbi’s involvement on December
20, 2012.10
When asked to describe the accommodation needed,
Plaintiff stated: “[I n]eed to have my day shift back to allow
me more rest/sleep.
(Pl.’s Ex. 61 at 1.)
I had no problems when I was on day shift.”
In furtherance of this request, Plaintiff
stated: “[I h]aven’t had a seizure for 30 years then [I had] one
after my schedule was changed to nights[,] which caused lack of
sleep and increased anxiety.”
(Id.)
10
There are two separate emails in the record that could also be construed as
requests for an accommodation. In November of 2009, Plaintiff emailed thenDean O. Iwuanyanwu to inquire about a schedule change during the fall and
winter to avoid driving in the dark. (Def.’s Mem. Ex. 59.) Then, in
February of 2009, there was an email exchange between Plaintiff and an
Employee Relations Specialist regarding her use of a “livescribe-pulse
smartpen” to assist Plaintiff in taking notes. (Def.’s Mem. Ex. 58.) Both
discrete acts occurred well before August 22, 2012, and therefore, are not
properly before the Court for consideration. The Court considers Plaintiff’s
request to “have [her] day shift back” as the only accommodation request and
denial before the Court.
13
Plaintiff’s treating physician, Dr. Kevin Weaver,
diagnosed Plaintiff with “seizure disorder” and “anxiety
disorder.”
(Id. at 2.)
As a result, Dr. Weaver opined that
Plaintiff was “unable to drive for at least 6 months due to [a]
recent seizure[,] requires at least 7-8 hours of sleep [each]
night[ because] insufficient sleep increases seizures[, and] . .
. stressors which increase her anxiety disorder.”
(Id. at 3.)
Dr. Weaver’s suggested an accommodation as follows:
Allow patient to work a normal day shift.
She cannot drive, must ride with her husband
who works a day shift.
If she works into
the evening she gets home late, but still
must get up early in the morning to ride
with [her] husband. This insufficient sleep
contributes to her seizures.
Also, not
being home to help care for her daughter who
has
mental
health
issues
triggers
her
anxiety disorder.
(Id.)
On December 20, 2012, Defendant denied Plaintiff’s
request because it interfered with the essential functions of
the LRCM position and if granted, would impose an undue hardship
on Defendant’s operations.
(Def.’s Ex. 60.)
It is undisputed that Defendant had notice of
Plaintiff’s seizure disorder and anxiety disorder, and that it
refused to provide any accommodation, leaving elements two and
four satisfied.
Defendant contends it is entitled to judgment
as a matter of law on Count One because Plaintiff has failed to
establish she was a qualified individual with a disability who
14
could perform the essential functions of the position with
reasonable accommodation.
Because genuine issues of material
fact exist as to whether Plaintiff was a “qualified individual,”
i.e., whether she could perform the essential functions of the
LRCM position, judgment as a matter of law is inappropriate.
It is undisputed from the record now before the Court
that Plaintiff is an individual with a disability as defined
“Seizures11 are a physical or mental impairment
under the ADA.
that substantially limits one or more [major life activities of
an individual].”
Martinson v. Kinney Shoe Corp., 104 F.3d 683,
686 (4th Cir. 1997) (quoting 42 U.S.C. § 12102(2)(A) (defining
disability)).
It is also uncontested that Plaintiff suffers
from a seizure disorder, and experienced a grand mal seizure on
November 30, 2012.
(Pl.’s Mem. Ex. 31, Weaver Dep. at 125-26.)
Thus, Plaintiff establishes the first element, that she is an
individual with a disability within the meaning of the statute.
(See Pl.’s Mem. Ex. 46, Strayer’s Response to EEOC Charge of
Discrimination at 10 (“Strayer does not dispute that Ms. Smith
is disabled.”).)
It is greatly disputed, however, whether Plaintiff was
a “qualified individual” who could perform the essential
functions of the LRCM position with, or without, reasonable
11
Plaintiff sought an accommodation for her seizure disorder and her anxiety
disorder, not for any vision difficulties. (Def.’s Ex. 61.) Thus, the Court
will not address the parties’ belabored arguments as to this issue.
15
accommodation, the third element of the prima facie case for
failure to accommodate under the ADA.
The ADA plainly recognizes that a “reasonable
accommodation” may include “job restructuring” and “part-time or
modified work schedules.”
42 U.S.C. § 12111(9)(B).
But given
the contested record now before the Court, and when viewing that
evidence in a light most favorable to the non-moving Plaintiff,
the Court finds a genuine issue of material fact exists as to
whether working evening or night hours is an essential function
of the LRCM position.
This factual dispute must be resolved by
the finder of fact and not by the Court on summary judgment.
See Hill v. Harper, 6 F. Supp. 2d 540, 544 (E.D. Va. 1998)
(finding the “essential function” and “reasonable accommodation”
inquiries to be fact specific).
Defendant contends the record is undisputed on this
issue, that working between 6:00 p.m. and 10:00 p.m. is an
essential function of the LRCM position.
In support, Defendant
references two Policy Memoranda that set new operating hours for
LRCs University-wide effective July 18, 2011.
5, 7.)
(Def.’s Mem. Exs.
But the Memoranda are silent as to who must staff the
LRC at what time and they certainly do not explicitly require
the LRCM to work into the evening hours.
(Id.)
Defendant also
argues that because Plaintiff knew her essential functions
16
involved assisting students in the LRC and delivering
presentations to targeted classes, some of which were held in
the evening, then Plaintiff was also aware that working evening
hours was required as an essential function of the job.
Mem. Ex. 1, C. Smith Dep. at 110-112.)
(Def.’s
But the LRCM Job
Description itself is also silent as to whether working nights
is an essential function of the job (see Def.’s Mem. Ex. 8), and
on summary judgment, the Court “must draw any inferences in the
light most favorable to the non-movant[.]”
Brock, 933 F.2d at
1259.
Moreover, the list of an LRCM’s essential duties and
functions is over two pages long and discusses the LRCM’s
responsibilities in the library, for student career development,
and with testing and Information Technology support.
3.)
(Id. at 1-
Yet, it is silent as to the requisite working hours, and it
remains disputed whether working during night hours is an
essential function of the LRCM position.
Even if, in Dean
Corbi’s judgment, it were essential for the LRCM to work night
hours, this judgment conflicts with Defendant’s own written
description of the job, such that it cannot be resolved by the
Court as a matter of law.
See 42 U.S.C. § 12111(8)
(“[C]onsideration shall be given to the employer’s judgment as
to what functions of a job are essential, and if an employer has
17
prepared a written description . . . this description shall be
considered evidence of the essential functions of the job.”).12
Thus, a genuine issue of material fact remains as to
the essential functions of the LRCM position, and once
established, whether Plaintiff could perform those functions
with or without reasonable accommodation.
The Court need not
reach Defendant’s additional arguments regarding the
reasonableness of the request and whether the request
constituted an undue hardship, because the threshold definition
of “essential function” is in dispute.
Cf. Solomon v. Vilsack,
763 F.3d 1, 10 (D.C. Cir. 2014) (finding “physical presence at
or by a specific time is not, as a matter of law, an essential
function of employment.”) (emphasis in original) (quoting
McMillan v. City of New York, 711 F.3d 120, 126 (2d Cir. 2013))
(citing Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29,
34-35 (1st Cir. 2000)).
Because such factual disputes remain,
Defendant is not entitled to judgment as a matter of law for
failure to accommodate and the Motion for Summary Judgment is
denied as to Count One.13
12
The undisputed fact that Plaintiff’s successor at the Loudoun LRC works
four nights a week does nothing to change the outcome. (Stmt. ¶¶ 13, 14.)
The relevant consideration for the Court includes the Job Description
prepared “before advertising or interviewing applicants for the job,” and it
is unclear whether the Job Description has changed. 42 U.S.C. § 12111(8).
13
The Court also notes that based on the record, it appears Defendant failed
to engage in an “interactive process” with Plaintiff after she filed her
request for accommodation, as required by 29 C.F.R. § 1630.2(o)(3). See
Wilson v. Dollar General Corp., 717 F.3d 337, 346-47 (4th Cir. 2013).
18
2. Harassment and Hostile Work Environment (Count Two)
To establish a prima facie case of harassment and
hostile work environment, Plaintiff must establish: (1) she was
a qualified individual with a disability; (2) she was subjected
to unwelcome harassment; (3) the harassment was based on her
disability; (4) the harassment was sufficiently severe or
pervasive to alter a term, condition, or privilege of
employment; and (5) some factual basis exists to impute
liability for the harassment to the employer.
Rohan v. Networks
Presentations LLC, 375 F.3d 266, 272 n.9 (4th Cir. 2004); see
also Wells v. BAE Sys. Norfolk Ship Repair, 483 F. Supp. 2d 497,
511-12 (E.D. Va. 2007).
In short, Defendant is entitled to judgment as a
matter of law on Count Two because there is no evidence in the
record to support a claim that Plaintiff was subjected to
objectively severe or pervasive harassment because of her
disability.
Even assuming the other elements of the prima facie
case are satisfied, Plaintiff fails to set forth any evidence of
objectively pervasive harassment, and thus, even when viewing
the evidence in a light most favorable to her, no rational
finder of fact could find in her favor on Count Two.
Brock, 933
F.2d at 1259.
For Plaintiff to avert summary judgment on this claim
19
there must be some dispute in the record over harassment
Plaintiff endured during her employment with Defendant.
Court finds no dispute at all.
The
To prevail, Plaintiff must
establish the work environment was subjectively and objectively
hostile.
Fox v. General Motors Corp., 247 F.3d 169, 178 (4th
Cir. 2001) (citation omitted).
The Court must look at the
frequency and severity of the discriminatory conduct, whether it
unreasonably interfered with Plaintiff’s work performance, and
whether it was physically threatening or humiliating, or just
offensive utterances.
Id.
The evidence in the record is
undisputed that Plaintiff did not endure any objectively hostile
harassment.
Plaintiff claims that the following acts by Defendant
constitute pervasive and severe harassment that created a
hostile work environment: the reassignment of Florence Poole
from the LRC to the Academic department; changing Plaintiff’s
work schedule to include evening shifts; placing Plaintiff on
the PIP; and denying Plaintiff’s request for accommodation.
On
their face, these employment actions cannot be construed as
objectively hostile.
In Fox, the employee’s supervisors “constantly berated
him and harassed him and the other disabled workers; indeed, Fox
presented evidence that such harassment occurred at least
20
weekly.”
Id. at 179.
The supervisors encouraged other
employees to join in on the harassment, and they also exposed
the employee to physical harm.
Id.
(emphasis added).
Thus,
the Fourth Circuit affirmed the jury’s verdict in the employee’s
favor on the hostile work environment claim.
Id.
But the ADA
is not a “general civility code” that governs workplace
behavior.
Rozier-Thompson v. Burlington Coat Factory Warehouse
of Pocono Crossing, Inc., No. 3:05CV456-JRS, 2006 WL 1889651, at
*6 (E.D. Va. July 7, 2006) (citing Cannice v. Norwest Bank Iowa
N.A., 189 F.3d 723, 726 (8th Cir. 1999) (quoting Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).
In
Rozier-Thompson, the Court granted summary judgment in the
employer’s favor on the hostile work environment claim because
three alleged disability-based comments over the period of
almost three years, which included calling the employee a
“cripple,” “old and infirm,” and “old and disabled and no good
to the company,” were not legally sufficient to constitute an
objectively hostile work environment claim.
Id. at *7.
So too here, there is nothing in the record, not even
infrequent or occasional harassment that rises to the level
necessary to constitute an objectively hostile work environment.
Simply put, there is no objective harassment in the record now
before the Court.
Employment decisions made by Defendant,
21
discussed above, do not form the basis for a hostile work
environment claim, let alone provide undisputed evidence of such
a claim, when there is no evidence to establish that such
actions were objectively hostile.
Fox, 247 F.3d at 178.
A
reasonable finder of fact could not find otherwise.
Accordingly, because there is no genuine issue of material fact
as to Plaintiff’s hostile work environment claim, the Motion for
Summary Judgment will be granted as to Count Two.
3. Wrongful Termination of Employment (Count Three)
To establish a prima facie case of discrimination by
termination of employment, Plaintiff must show she: (1) was
disabled or within ADA’s protected class; (2) was discharged by
Defendant; (3) performed the job at a level that met Defendant’s
legitimate expectations at the time of her discharge; and (4)
the discharge occurred under circumstances that raise a
reasonable inference of unlawful discrimination.
Haulbrook v.
Michelin N. Am., 252 F.3d 696, 702 (4th Cir. 2001); Pruitt v.
Fairfax Cnty. Sch. Bd., No. 1:12-cv-1390, 2013 WL 4101252, at *5
(E.D. Va. Aug. 13, 2013).
Even if the Court assumes Plaintiff has met her burden
as to elements one,14 two, and four, Plaintiff’s claim fails to
14
Notably, Count Three in the Amended Complaint alleges Plaintiff was
terminated because of her “impaired vision at night or in dim light,” and not
because of her seizure disorder. (Am. Compl. ¶ 131.) The Court need not
address the issue of whether Plaintiff was disabled or within ADA’s protected
class, however, because even if the Court assumes this element has been
22
establish a prima facie case as a matter of law because it is
undisputed that Plaintiff was not, at the time of her
termination, meeting Defendant’s legitimate expectations.
Defendant identifies a litany of reasons Plaintiff was
terminated for poor performance.
In August of 2012, on the Mid-
Year Performance Rating, Plaintiff received a 2.03 out of 5,
equating to “improvement needed.”
(Def.’s Mem. Ex. 24.)
In
October of 2012, Plaintiff was unable to make necessary
classroom presentations, and on at least one occasion, asked a
professor for assistance in showing a student the correct APA
citation format.
(Id. Exs. 28, 29.)
Shortly thereafter, on
November 6, 2012, Plaintiff was placed on a 30-day PIP, which
specifically identified performance deficiencies that needed
improvement.
(Id. Ex. 30 (“Poor customer service/Failure to
assist students or conduct activities to foster information
literacy . . . failure to communicate and manage in a positive
manner . . . failure to follow University procedures regarding
Payroll (Timesaver) system . . . .”); see also Ex. 31.)
But Plaintiff’s performance did not improve; in fact,
it is undisputed that her performance worsened.
Most notably,
on November 8, 2012, Plaintiff gave herself an overall rating of
2.84 out of 5 on the annual performance review, which is
satisfied, Plaintiff’s claim for wrongful termination still must fail as a
matter of law.
23
considered “below effective” but above “improvement needed.”
(Def.’s Mem. Ex. 34.)
Weeks later, Plaintiff sought assistance
in updating her resume because she knew she needed “to find
another job quickly.”
(Id. Ex. 39 (“I don’t think I am going to
be here much more than Dec 12, 2012.
My boss just had another
meeting with me about my performance improvement plan and he
said there was no change.
I am on the second step.”).)
Indeed,
by the interim performance check with Dean Corbi, Plaintiff was
still failing to follow payroll procedures, and had made no
additional classroom presentations.
(Id. Exs. 40, 41.)
By the
final progress check, Plaintiff’s performance had worsened, and
Dean Corbi raised at least six new concerns.
(Id. Exs. 47, 48
(including missing meetings, failing to post LRC hours, failing
to properly assist students).)
Plaintiff attempts to create a genuine issue of
material fact as to her performance by contesting the validity15
of the PIP, claiming it was unreasonable and retaliatory.
(Pl.’s Mem. at 30-32.)
Plaintiff also claims the PIP faulted
her for symptoms of her disabilities.
(Id.)
But Plaintiff
cannot point to any evidence in the record that shows she was
meeting Defendant’s legitimate expectations at the time of her
15
Plaintiff contends her PIP was much shorter than typical PIPs, and argues
that this tends to show her PIP was retaliatory and merely a pretext. (Pl.’s
Mem. Ex. 53.) This does nothing, however, to call into question Plaintiff’s
actual work performance.
24
termination.
Plaintiff’s “own naked opinion [about the validity
of the PIP], without more, is not enough to establish a prima
facie case of . . . discrimination.”
Goldberg v. B. Green and
Co., Inc., 836 F.2d 845, 848 (4th Cir. 1988).
Plaintiff
contends that she was meeting Defendant’s legitimate
expectations because Defendant received no complaints from
students.
(Pl.’s Mem. Ex. 10 at 4 (“Strayer is not currently
aware of any complaint made to the University by a Strayer
student about Cherie Smith or her performance.”).)
Plaintiff
omits the remainder of this discovery response, however, which
goes on to enumerate Plaintiff’s unprofessional behavior in
front of students.
(Id.)
On summary judgment, the Court is not
required to accept conclusory assertions regarding Plaintiff’s
own state of mind, motivations, or perceptions regarding the
employment actions at issue.
Goldberg, 836 F.2d at 848 (citing
Zoby v. American Fidelity Co., 242 F.2d 76, 80 (4th Cir. 1957)).
Indeed on summary judgment, the Court cannot find that a genuine
issue of material fact exists based solely on “mere speculation
or the building of one inference upon another[.]”
V. Phelan, 526 F.3d 135, 140 (4th Cir. 2008).
Othentec Ltd.
Accordingly,
because Plaintiff’s speculation as to Defendant’s implementation
and validity of the PIP cannot suffice to create a genuine issue
of material fact, and because Plaintiff has otherwise not
25
produced affirmative evidence showing that a genuine issue
exists as to her performance at the time of termination,
Plaintiff fails to establish a prima facie case of wrongful
termination, and judgment will be entered in Defendant’s favor
on this claim.
Alternatively, even if the Court assumed Plaintiff
could establish a prima facie case of wrongful termination,
Defendant has met its burden of production by articulating a
legitimate, non-discriminatory reason for her termination: poor
performance.
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981).
At this juncture, Plaintiff also fails to
satisfy the specific requirement that she proves “poor
performance” was really not the true reason for her termination,
but just a pretext for discriminating against her because of her
disability.
Id.
“In reviewing whether an employer’s decision
is unlawful, the Court’s task is not ‘to decide whether the
reason for termination of employment was wise, fair, or even
correct, ultimately, so long as it truly was the reason for the
decision.’”
Mercer v. Arc of Prince George’s Cnty., Inc., 532
F. App’x 392, 399 (4th Cir. July 11, 2013) (quoting Laing v.
Fed. Exp. Corp., 703 F.3d 713, 722 (4th Cir. 2013)).
There is
nothing in the record to support the notion that Plaintiff was
actually terminated because of her disability.
26
Instead, the
undisputed record shows Defendant’s true reason for terminating
Plaintiff was because of consistently poor performance.
For these reasons, Defendant is entitled to judgment
as a matter of law on Plaintiff’s wrongful termination claim,
and the Motion for Summary Judgment will be granted as to Count
Three.
4. Retaliation (Count Four)
To establish a prima facie case of retaliation,
Plaintiff must prove: (1) she engaged in protected activity
under the ADA; (2) Defendant acted adversely against her; and
(3) the protected activity was casually connected to employer’s
adverse action.
2001).
Rhoads v. FDIC, 257 F.3d 373, 392 (4th Cir.
Plaintiff claims that after requesting an accommodation,
which is protected activity under the ADA, Defendant retaliated
after it refused to engage in an interactive process, denied her
request without actually considering it, and eventually
terminated her employment.
(Am. Compl. ¶ 140.)
Defendant is
entitled to judgment as a matter of law on this claim as well,
because it is undisputed that Plaintiff’s termination was not
causally connected to her request for accommodation.
The evidence in the record now before the Court shows
that Plaintiff knew she was going to lose her job because of
poor performance, and not because of her request for a
27
disability accommodation.
Plaintiff’s formal request came over
one month after the PIP had started and almost a week after the
PIP was originally scheduled to conclude.
On November 6, 2012, Plaintiff was placed on the PIP.
By November 21, 2012, Plaintiff knew her job was in jeopardy,
and even took steps “to find another job quickly,” because she
didn’t think she was “going to be here much more than Dec 12,
2012.”
(Def.’s Mem. Ex. 39.)
Almost a week later, and close to
one month after she was placed on the PIP, only then did
Plaintiff submit an informal request for accommodation to Dean
Corbi, followed by a formal request for accommodation two weeks
later on December 18, 2012 with medical documentation.
The
request was denied on December 20, 2012, and Plaintiff was
terminated on December 29, 2012, close to two months after she
was placed on the PIP and only eleven days after filing a formal
request for accommodation.
Temporal proximity between protected activity and the
adverse employment action can be “highly suspicious” and “give[]
rise to a strong inference of . . . discrimination.”
O’Leary, 796 F. Supp. 2d 766, 782 (E.D. Va. 2011).
Weth v.
But temporal
proximity alone is insufficient to establish the third element
of causation.
Staley v. Gruenberg, 575 F. App’x 153, 156 (4th
Cir. Jun. 6, 2014) (citing Hernandez v. Yellow Transp., Inc.,
28
670 F.3d 644, 660 (5th Cir. 2012) (holding that “but for
causation . . . cannot be established by temporal proximity
alone”), cert. denied, --- U.S. ---, 133 S. Ct. 136 (2012).
facts here are undisputed.
The
Plaintiff knew for over a month
before she filed her formal request for accommodation that her
job was in jeopardy.
Her performance did not improve during
this period of time.
She even considered herself an ineffective
employee.
Based on these undisputed facts, Plaintiff cannot
establish the causal connection necessary between her request
for accommodation and her termination.
If anything, the
temporal proximity in this case suggests to the Court that
Plaintiff was desperately attempting to save her job with
Defendant in any way she could.
Accordingly, judgment as a matter of law will be
entered in Defendant’s favor on Plaintiff’s retaliation claim,
and the Motion for Summary Judgment is granted as to Count Four.
IV. Conclusion
For the foregoing reasons, the Court will grant
Defendant’s motion for summary judgment in part as to
Plaintiff’s hostile work environment, wrongful termination, and
retaliation claims, and enter judgment in Defendant’s favor as
to counts two, three, and four.
Otherwise, the motion for
summary judgment is denied as to count one, failure to
29
accommodate.
An appropriate Order will issue.
January 13, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
30
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