Ruddell v. Triple Canopy, Inc.
Filing
81
MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 8/29/2016. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
DUSTIN R. RUDDELL,
Plaintiff,
l:15-cv-01331 (LMB/JFA)
v.
TRIPLE CANOPY, INC.
Defendant.
MEMORANDUM OPINION
Plaintiff Dustin R. Ruddell ("plaintiff or "Ruddell") has filed this civil action under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq.. against defendant Triple
Canopy, Inc. ("defendant" or "Triple Canopy"), a defense contractor that provides security
services to various government agencies, including the Department of State (DOS), for
employment discrimination and failure to reasonably accommodate plaintiffs disability. First
Am. Compl. (Compl.), [Dkt. 5] U3; Written Stip. of Uncontested Facts (Stip.), [Dkt. 60] 14.
Although the complaint included a claim under the "Louisiana Employment Discrimination
Act," Compl. H3, plaintiff has abandoned that claim.
Discovery has been completed and the parties have filed and argued their cross-motions
for summary judgment, which are the subject of this memorandum opinion. For the reasons that
follow, defendant's motion will be granted and plaintiffs motion will be denied.
I.
BACKGROUND
The majority of facts in this record are not disputed. Before joining Triple Canopy,
plaintiffserved two tours of duty in the Navy. Stip. ^ 3. During that period, Lt. Commander
Jessica Plichta Wilson diagnosed plaintiff with Attention Deficit Hyperactive Disorder (ADHD).
Ruddell Dep., [Dkt. 70-7] at 19:9-21. To manage that disorder, Ruddell was prescribed
Adderall XR. Ruddell Dep., [Dkt. 79-1] at 13-30. Adderall XR is an amphetamine, meaning it
is a central nervous system stimulant. Ruddell Dep., [Dkt. 70-7] at 140:5-8; "Amphetamine,"
Dorland's Illustrated Medical Dictionary (26 ed., John P. Friel ed., 1981). Without Adderall,
Ruddell becomes "moody," experiences "depression," and his mind is "all over the place."
Ruddell Dep., [Dkt. 74-1] at 97:21. FromNovember 30, 2012, until June 22,2015, Ruddell was
under the care of Diane Davis, a nurse practitioner. Stip. K18. During those years, Nurse Davis
reauthorized Ruddell's Adderall prescription several times. Ruddell Dep., [Dkt. 79-1] at 13-30.
Triple Canopy is a prime contractor on the Worldwide Protective Services (WPS)
Contract for DOS. Stip. ffl 1, 4. One portion of the WPS Contract is Task Order 5 (TO-5),
under which Triple Canopy provides security services in Baghdad, Iraq. Stip. fl 1, 4. Plaintiff
was deployed on this contract in April 2011 as an explosive detection dog (EDD) handler. Stip.
fl 6-7. "As an EDD Handler on TO-5, many of Plaintiffs missions were on 'ambassador's
detail,' providing mobile security. As part of this detail, Plaintiff served on an advance team and
(using a trained bomb-sniffing dog) cleared the area of explosives if a diplomat or an ambassador
had a meeting to ensure the safety of the dignitary." Stip. | 8. While deployed, Ruddell had to
carry a firearm at all times. Stip. K10. The job also "required him to: (1) provide emergency
response in .. . life threatening situations; (2) summon professional assistance and render first
responder first aid ... ; (3) explosive ordnance detection; (4) prevent the unauthorized
introduction of explosive devices or matter; and (5) protect life and property." Stip. f 11.
Defendant concedes that "Ruddell's performance was 'steadily consistently good."' Def. Opp.
to PI. Mot. for S.J. (Def. Opp.), [Dkt. 75] at 3.
The WPS Contract contains two primary provisions on contractor use of prescription
medication. [Dkt. 70-11] at 3. Section 7.17 provides:
Contractor personnel who is [sic] taking prescription medication, except for the
short-term antibiotics, anti-malarial prophylaxis, or oral contraceptives, which are
not already a matter of record with the Contractor, shall notify his or her
supervisor and submit a medical certificate or other administratively acceptable
documentation ofthe prescription and its effect(s) to the Regional Security
Officer and DS/OPO/HTP.
The Regional Security Officer with the assistance ofDS/OPO/HTP shall
determine whether such Contractor personnel shall be allowed to continue to
carry a firearm while taking the medication. Pending written approval, Contractor
personnel shall not perform [personal security] duties.
[Dkt. 70-11] at 3. In Section 8.06(2), the contract provides:
Typically, prescription medication will be approved for use under the treatment of
aqualified attending Physician in accordance with approved dosages and when
the medication does not cause drowsiness or otherwise impair performance and
are [sjc] part of theemployee's official medical record.
[Dkt. 70-11] at 6.
The WPS Contract also contains two relevant provisions described as "General
Necessary Conditions," which provide more information about the terms and conditions of
defendant's responsibilities. The first is Section C.4.1.1, which reads:
The Contractor shall ensure that all work performed under this contract is
accomplished in accordance with the applicable standards, standard operating
procedures, general orders, and specific orders issued by [DOS] unless otherwise
directed by the [Contracting Officer], [Contracting Officer
Representative/General Technical Manager], [Regional Security Officer], [Agent
in Charge], or the Program Office. Any changes in standards, standard operating
procedures, or General Orders for any particular PRS or guard detail will be
identified in the applicable Task Order.
[Dkt. 70-11] at 2. Section C.4.1.2 reads in relevant part:
The Contractor, including all Contractor personnel accomplishing work under this
contract, shall accomplish all work under this contract in compliance with the
direction provided by the Department of State [Contracting Officer], [Contracting
Officer Representative/General Technical Manager], [Regional Security Officer],
Agent in Charge (AIC) orthe Program Office.
[Dkt. 70-11 ]at 2. The WPS Contract itself is silent about what happens if acontractor violates
either of these two sections, but defendant's corporate representative Jeffrey Johnson testified in
his deposition that failure to adhere to requirements in letters from the Contracting Officer
Representative (COR) would lead the government to "terminate the contracts and ... put it [sic]
up for rebid." [Dkt. 70-12] at 26:17-18. There is no evidence in the record contradicting that
statement.
In 2013, DOS and Triple Canopy began to correspond about the medication provisions of
the WPS Contract. The first letter, which came from DOS on February 15, 2013, and was
addressed not only to defendant but to "All Worldwide Protective Services (WPS) Contractors
providing support in Iraq," discussed contractors' obligation to conduct drug testing under the
WPS Contract. [Dkt. 70-13.] DOS specifically observed that "[i]t is the responsibility ofeach
WPS Contractor to remain compliant with Section 8.05 (Drug Screening) ofthe WPS base
contract by ensuring 100% ofpersonnel serving on the task order are screened within every 6
month time period." [Dkt. 70-13] at 1. DOS then provided a list of actions that each contractor
should take to facilitate that process, including providing information to employees, sending a
supervisor to accompany employees being tested, reporting "non-negative" test results, and
removing "non-negative" employees from billable status and "[U.S. government]-provided
housing" while follow-up takes place. [Dkt. 70-13] at 1-2.
Defendant replied on February 22, 2013, asking for clarification on several issues related
to the prescription medication policy, among them whether "it [was] the intention of DOS that
anyone prescribed prescription drugs while on task order by [Comprehensive Health Services
(CHS)] shall be removed from the project and returned to home of record[.]"' [Dkt. 70-14] at 2.
Triple Canopy then requested that DOS "publish alist ofmedications that would prohibit a
Triple Canopy employee from performing on this contract while using one or more of those
proscribed medications, along with a statement regarding why each medication . . . serves as a
disqualifying factor based upon the specific job requirements[.]" [Dkt. 70-14] at 2. In its
February 22 letter, Triple Canopy also informed DOS that it had "significant concerns that
employees who are negatively impacted by the review process may invoke the legal protections
of the ADA." [Dkt. 70-14] at 3.
In a reply sent March 8, 2013, DOS declined to provide the requested list ofmedications,
stating that "[DOS] is also bound by the terms ofthe Americans with Disabilities Act and the
Uniformed Services Employment and Reemployment Rights Act, and we feel that existing
department guidelines allow us to comply with these regulations." [Dkt. 70-17] at 4. After
receiving that letter, defendant sent an email dated April 9, 2013, to all employees working on
the DOS contract advising that "DOS has expanded the testing to the following list of drugs,"
and providing an itemized list of medications including "amphetamine." [Dkt. 70-19.]
On June 6, 2013, DOS followed up with another letter. This time, DOS provided a list of
medications that it considers "inconsistent with working in a high threat environment." [Dkt. 70-
18 at 1.] That list included "amphetamine and derivatives," and DOS directed contractors to
ensure that"no one is operating in a billable capacity on the taskorderwhile taking ... any of
the above substances." [Dkt. 70-18] at 1. The June 6 letter also provided different instructions
1CHS is a separate contractor that provides medical support services to other DOS contractors
on the WPS Contract. COR Letter Dated 2/22/2013, [Dkt. 70-14] at 1.
2As discussed in Part II.B, the DOS statement that it is bound by the ADA is in error; the
Rehabilitation Act, not the ADA, applies to disability-based discrimination claims against the
federal government. See 29 U.S.C. § 701 et seq.; 42 U.S.C. § 12101 et seq.
with respect to psychotropic and psychotherapeutic medications generally, concluding that they
"may be inconsistent with work in a high threat environment," directing disclosure to DOS for
further evaluation, and explaining that "[i]fan individual is taking medications containing the
substances listed above, the Contractor shall remove that individual from duty either temporarily
until the condition requiring the use of the medication is resolved, or permanently." [Dkt. 70-18]
at 2 (emphasis added).
OnJune 2, 2014, almost exactly one year after receiving the itemized list from DOS,
Triple Canopy sent a letter to all its WPS Contract employees identifying "prohibited
medications" including "amphetamine and derivatives," specifically listing Adderall as an
example of an "amphetamine." [Dkt. 70-20.J
It is not clear when Triple Canopy first became aware that Ruddell was using Adderall.
Although Ruddell asserted in his deposition that he "wrote down on the paper that [he] was
taking Adderall" throughout his employment, [Dkt. 70-7] at 70:1-2, he also testified that he
would stop taking the medication before his drug screening tests because he thought he had to
"to make a living." [Dkt. 70-7] at 69:19-22. Ruddell also asserted that he was rebuffed when he
attempted to inform CHS about taking Adderall. [Dkt. 70-7] at 133:20-134:1. Defendant's
corporate designee Jeffrey Johnson conceded in his deposition that Triple Canopy "was notified"
that Ruddell was on Adderall a year and half before his termination, but emphasized that because
Ruddell never tested positive, no action was taken to remove him from the contract. [Dkt. 74-4]
at 37:14-38:21.
On June 6, 2014, Triple Canopy supervisor Marcus Neville asked Ruddell if he was "still
taking" Adderall. Ruddell Dep., [Dkt. 70-7] at 155:4-6; Def. Memo. 11. Ruddell replied that he
was. Ruddell Dep., [Dkt. 70-7] at 155:4-6; Def. Memo. 11. According to plaintiff, he was told
the same day that he had to come off the WPS Contract and fly home at his own expense.
[Dkt. 70-7] at 157:3-22. Ruddell considered that directive to beequivalent to "termination"
because once he was "taken off the contract," he was no longer drawing a paycheck. [Dkt. 74-1]
at 161:8-9. As a result, he "immediately started another job that provided [him] with health
insurance." [Dkt. 74-1] at 160:12-14.
It is uncontested that defendant did not technically terminate plaintiff until May 8, 2015,
and that it continued to make healthcare benefits available to him until December 31, 2014.
Burnett Dec, [Dkt. 70-2] *|fl[ 14-16.3 Triple Canopy asserts that plaintiffs termination from the
company (as opposed to the WPS Contract) was a routine result of plaintiff being inactive (that
is, not on a contract) for 120 days, and not because he was on Adderall. Burnett Dec, [Dkt. 702] 114.
After his removal from the WPS Contract, Ruddell consulted with his healthcare provider
and then emailed Triple Canopy to say that the provider had "released" him to work "as long as
[he] continue^] [his] prescribed use of Adderall XR 30 mg." [Dkt. 70-23.] Triple Canopy
replied that it could not allowhim to serve on the WPS Contract as longas he was taking
Adderall. [Dkt. 70-23.] In that reply, Triple Canopy invited Ruddell to look for alternate
postings available on its website. [Dkt. 70-23] ("[Y]ou are welcomed [sic] to search TC's non
DOS programs for other positions. Please advise me of your intentions."). Ruddell searched the
database but could not find any position for which he was qualified. See Ruddell Dep., [Dkt. 70-
7] at 181:15, 227:14-15. Defendant agrees that no such position existed when it removed
Ruddell from the WPS Contract. Wallace Dec, [Dkt. 70-2] Tf 11. According to Ruddell's
3Plaintiff apparently did not realize that these benefits were still available. See Ruddell Dep.,
[Dkt. 74-1] at 160:12-14.
deposition testimony, he spoke with Academi, a corporate sibling ofTriple Canopy, about a K9
position there. [Dkt. 77-5] at 43:17-19. Both Triple Canopy and Academi are subsidiaries of
Constellis Group, Inc. Ruddell Dep., [Dkt. 77-5] at43:18. Ruddell did not obtain the Academi
position because his security clearance had expired. Ruddell Dep., [Dkt. 77-5] at45:14-17.
II.
DISCUSSION
A. Summary Judgment Standard of Review
Summary judgment is warranted where "there is no genuine dispute as to any material
fact and .. . the moving party is entitled tojudgment as a matter of law." Fed. R. Civ. P. 56(a).
When the parties file cross-motions for summary judgment, the court "must consider each
motion separately on its own merits to determine whether either ofthe parties deserves judgment
as a matter of law." Krpan v. Registry of Interpreters for the Deaf Inc., No. l:15-cv-458, 2016
WL 889662, at *4 (E.D. Va. Mar. 8, 2016) (internal citations and quotation marks omitted). For
each motion, the Court will "resolve all factual disputes and any competing, rational inferences
in the light most favorable to the party opposing that motion." Id (internal citations and
quotation marks omitted).
Nevertheless, "[t]he mere existence of a scintilla of evidence in support of the
[nonmoving party's] position will be insufficient" to defeat summary judgment. Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 252 (1986). For a dispute to be "genuine," then, there must
be "evidence such that a reasonable jury could return a verdict for the nonmoving party." Id,
at 248. Likewise, to amount to a "material" dispute, the issue must potentially "affect the
outcome of the suit under the governing law." Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th
Cir. 2001).
If the nonmovant bears the burden of proof, the moving party may nevertheless prevail
by demonstrating "that there is an absence of evidence to support the nonmoving party's case."
Celotex Corp. v. Catrett, 477 U.S. 317, 322-25 (1986). To survive summary judgment, the
nonmoving party must raise "specific facts" rather than mere "metaphysical doubts" to refute the
movant's position. Matsushita Elec Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) (internal quotation marks omitted). Ifthe nonmoving party fails to raise facts to support
an "essential element"of its claim, the moving party is entitled to judgment as a matterof law.
Rhodes v. E.I, du Pont de Nemours & Co., 636 F.3d 88, 94 (4th Cir. 2011).
B. Disability Discrimination Statutes
Because defendant has raised the issue of derivative sovereign immunity, it is necessary
to discuss the statutes that prohibit disability discrimination both in the private sector and by the
federal government. The ADA prohibits large private employers from engaging in disability
discrimination. See 42 U.S.C. § 12101 et seq. The Rehabilitation Act prohibits the federal
government, and other federally-funded programs and entities, from doing so. See 29 U.S.C.
§ 701 et seq. Section 501 ofthe Rehabilitation Act addresses discrimination in federal hiring,
and § 504 addresses employment discrimination more generally. 29 U.S.C. §§ 791, 794. Under
both the ADA and the Rehabilitation Act, the plaintiffbears the burden of showing that he is the
victim of an adverse employment action as a result of disability discrimination, or that the
employer failed to reasonably accommodate his disability. See Raytheon Co. v. Hernandez, 540
U.S. 44. 49 n.3 (2003): Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir. 1993).
C. Analysis
1. Derivative Sovereign Immunity
Defendant claims that as a federal government contractor it is entitled to derivative
sovereign immunity. Def. Memo. 16. Plaintiffresponds that defendant is not immune from
liability under the ADA because it exceeded its authority under the contract and it has waived
any sovereign immunity by holding itself out as bound by the ADA. PI. Opp. to Def. Mot. for
S.J. (PI. Opp.) 16-17.
The Supreme Court has recognized that federal government contractors share the United
States' immunity when they act pursuant to authority "validly conferred" by the United States
government. Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663, 673 (2016) (citing Yearslev v.
W.A. Ross Constr. Co.. 309 U.S. 18, 21 (1940)). Immunity is available when "the government
has directed a contractor to do the very thing that is the subject of the claim." Corr. Servs. Corp.
v. Malesko, 534 U.S. 61, 74 n.6 (2001). Therefore, the contractor is entitled to claim immunity
"only if it adhered to the terms of its contract with the government." In re KBR, Inc.. Burn Pit
Litigation, 744 F.3d 326 (4th Cir. 2014). To determine whether a contractor has acted in
conformity with the contract, a court may look to the contract's "appended task orders, and any
laws and regulations that the contract incorporates." Id.
Derivative sovereign immunity exists because the government and its contractors have
"the same interest in getting the Government's work done." See Boyle v. United Technologies
Corp., 487 U.S. 500, 506 (1988). For that reason, "the scope of immunity is defined by the
nature of the function being performed and not by the office or the position of the particular
employee involved." Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1447 (4th Cir. 1996)
(emphasis in original). When acting under valid governmental authority, therefore, a contractor
is immunized "to the same extent as the Government" would be if it stood in the contractor's
shoes. See Federico v. Lincoln Military Housing, LLC, 127 F. Supp. 3d 623, 637 (E.D. Va.
2015). Put simply, a contractor cannot claim a derivative immunity that exceeds the immunity of
the sovereign.
10
It is this last principle that ultimately defeats Triple Canopy's claim to derivative
immunity because Congress has prohibited the federal sovereign from discriminating on the
basis of disability through the Rehabilitation Act, just as it has prohibited private sector
employers from doing so through the ADA. See 29 U.S.C. § 701 et seq.; 42 U.S.C. § 12101 et
seq. Defendant nevertheless argues that immunity attaches because plaintiffhas brought this
civil action under the ADA and the federal government has not waived its sovereign immunity
from suit brought specifically under the ADA. In other words, defendant argues that because a
disabled federal employee could only sue the government for disability-based discrimination by
invoking the Rehabilitation Act, which is a different cause of action than the ADA, federal
government contractors are immune from suit under the ADA too.
As defendant candidly acknowledged at oral argument, accepting its view of immunity
would create a regime in which federal contractors acting on government instructions would be
the only large employers in the country that could discriminate on the basis of disability with
impunity. That result would disregard Congress' efforts to harmonize the substantive standards
applicable under the ADA and the Rehabilitation Act. Although "the ADA and Rehabilitation
Act are not exactly the same in all respects," Baird v. Rose, 192 F.3d 462, 469 (4th Cir. 1999),4
Congress has directed that "[t]he standards used to determine whether [§§ 501 and 504 of the
Rehabilitation Act have] been violated .. . shall be the standards applied under title I of the
Americans with Disabilities Act[.]" 29 U.S.C. §§ 791(f), 794(d). Courts considering the
4Most notably, plaintiffs suing under § 504 of the Rehabilitation Act, alleging employment
discrimination against the federal government, must show a more stringent causal nexus than
ADA plaintiffs. See Baird. 192 F.3d at 469. The Fourth Circuit has not ruled on whether the
more stringent causation standard applies to claims under § 501 of the Rehabilitation Act. See
Dank v. Shinseki, 374 Fed. App'x 396, 399 (4th Cir. 2010) ("The question of whether the 'solely
by reason of standard applies to section 501 claims is far from settled.").
11
relationship between the two statutes "construe the ADA to grant at least as much protection as
provided by the regulations implementing the Rehabilitation Act," Bragdon v. Abbott, 524
U.S. 624, 632 (1998) (citing 42 U.S.C. § 12201(a)). "Moreover, Congress has called for a
coordinated interpretation of the Rehabilitation Act and the ADA to 'prevent [] imposition of
inconsistent or conflicting standards for the same requirements' under the two standards[.]"
Rogers v. Dep't of Health & Env. Control. 174 F.3d 431, 433 (4th Cir. 1999) (quoting 42 U.S.C.
§ 12117(b)) (alteration in original).
Defendant's claim of being immune from suit under the ADA is also inconsistent with its
pre-litigation communications with DOS, which reveal that Triple Canopy did not believe it was
immune from the requirements of the ADA. Defendant raised "significant concerns that
employees who are negatively impacted by the [drug screening] review process may invoke the
legal protections of the ADA" in its letterto the CORdatedFebruary 22, 2013. [Dkt. 70-14]
at 3. Moreover, in the WPS Contract, DOS affirmed that it is "fully committed to the prevention
and elimination of discriminatory and sexual harassment within the workforce. Discriminatory
harassment includes any conduct targeting an individual's . . . disability[.]" [Dkt. 70-11] at 7.
Defendant relies on Circuit City Stores. Inc. v. Equal Employment Opportunity Comm'n,
75 F. Supp. 2d 491 (E.D. Va. 1999), to argue that the government has not waived its sovereign
immunity under the ADA; however, the procedural posture of that case distinguishes it from the
present one. Circuit City does not address the question of derivative sovereign immunity at all,
much less whether derivative immunity is available where, as in the disability discrimination
context, the government is held to a legal standard that is "substantially the same" as a private
employer. See Doe v. Univ. of Md. Med. Sys. Corp., 50 F.3d 1261, 1264 n.9 (4th Cir. 1995).
Instead, it addresses whether an employer could use the ADA to sue the federal government
12
directly. In that case, the EEOC opened an investigation into one ofCircuit City's contractual
practices, and Circuit City sought to obtain a declaratory judgment that the practice in question
was lawful. Id at 496. Because Circuit City needed a cause of action against the government, it
cited a potpourri offederal statutes, including the ADA, in an effort to invoke the court's
jurisdiction. Id at 503-04. In concluding that none ofthe proffered statutes conferred subject
matter jurisdiction, the court held that none ofthose statutes waived sovereign immunity "for the
type ofaction here presented." Id at 504. That is, neither the ADA nor the other statutes
conferred on Circuit City a direct cause of action against the United States. By contrast, Ruddell
does not seek to proceed against the United States. He properly brings this civil action against
his private employer. As such, it must be brought under the ADA and not the Rehabilitation Act,
which applies to claims against the federal government.
Recognizing the potential breadth ofthe claimed exception, defendant sought to qualify
the implication of itsargument. Citing Butters v. Vance IntT, Inc., defendant argued that
contractors would only be immune when performing acts that are"quintessentially . . . 'peculiar
to sovereigns.'" 225 F.3d 462, 465 (4th Cir. 2000) (quoting Saudi Arabia v. Nelson, 507 U.S.
349, 361 (1992)). In Butters, the court confronted a contractor's immunity claim derived from
the Foreign Sovereign Immunities Act (FSIA), not immunity derived from the United States'
common law sovereign immunity. Under the FSIA, whether an activity is "peculiar to
sovereigns" is of great consequence, because foreign states can be sued for "commercial"
activities that are not uniquely sovereign. See Butters, 225 F.3d at 465 (citing 28 U.S.C.
§ 1605(a)(2)). That distinction is irrelevant to the sovereign immunity of the United States,
which applies without regard to the nature of the government's activity. See F.D.I.C. v.
Meyer, 510 U.S. 471, 475 (1994). Consequently, the language defendant quotes from Butters
13
provides no legal basis for cabining the context in which a contractor could claim immunity from
the provisions of the ADA. Given Congress' clear intent to protect workers, whether in the
private or public sectors, from discrimination based on disability and the lack of relevant case
law supporting the immunity claim, defendant's argument that it is immune from suit as to
plaintiffs discrimination claim fails.
Even if defendant were immune from plaintiffs discrimination claim, it would not be
immune from his failure to accommodate claim because no communication from DOS instructed
defendant to refuse to search for a new post for Ruddell. In fact, the March 8 DOS letter stated
that "[DOS] considers] whatever steps Triple Canopy takes internally (e.g., placing the
individual on administrative leave, temporary reassignment to an unarmed CLIN, flying them out
of country, etc.) to mitigate and/or comply with Triple Canopy policies are purely an internal
business decision on the part of Triple Canopy." [Dkt. 70-17] at 3. Given that clear statement
from DOS, defendant was not acting pursuant to specific DOS instructions when it
communicated with Ruddell about reassignment and cannot claim derivative sovereign immunity
for that decision. For these reasons, defendant's argument that it is immune from liability under
the ADA fails.
2. Discrimination Claim
On the merits of the ADA discrimination claim, defendant primarily argues that plaintiff
is not a "qualified individual" protected by the statute. Def. Memo. 20. Plaintiff responds that
the amphetamine ban is not a job related requirement and that his demonstrated ability to
perform the job while taking Adderall proves he is qualified. PI. Memo, in Support of S.J., [Dkt.
74] at 12.
14
To prevail on a claim of discrimination under the ADA, a plaintiff must first make out a
prima facie case, which requires establishing that: (1) he is disabled; (2) he is a qualified
individual for the employment at issue; and (3) the employer took an adverse employment action
because of his disability. Equal Employment Opportunity Comm'n v. Stowe-Pharr Mills. Inc.
216 F.3d 373, 377 (4th Cir. 2000).
To be considered a qualified individual, a plaintiff must show that he satisfies the "jobrelated requirements of the employment position," 29 C.F.R. § 1630.2(m), and can "perform the
essential functions of the employment position," either "with or without reasonable
accommodation," 42 U.S.C. § 12111(8). Although the ADA generally prohibits the use of
"qualification standards" that screen individuals based on a disability, such a standard is
nevertheless lawful if the employer can show that it is "job-related for the position in question
and is consistent with business necessity." 42 U.S.C. § 12112(b)(6).
Triple Canopy presents two main arguments to support its position that plaintiff is not a
qualified individual. First, it argues that being amphetamine-free is a "job-related requirement"
that Ruddell failed to satisfy. Def. Memo. 20. Second, it argues that the amphetamine ban is a
"qualification standard" that is "job-related" and "consistent with business necessity." Def.
Memo. 24-27.
There is little distinction between the standards used to assess a "job-related requirement"
versus a "qualification standard" that is "job-related" and "consistent with business necessity."
See Tate v. Farmland Indus., 268 F.3d 989, 993 (10th Cir. 2001) (defining a "job-related
requirement" to be a "specification" that is "job-related, uniformly enforced, and consistent with
business necessity"). When an employer institutes such a requirement or qualification out of
concern for the safety of the employee, his colleagues, or the public, a court will be reluctant to
15
"second guess" the "legitimate business judgment" of the employer. Id at 994; see also Cochran
v. Holder,No. 1:06-cv-l 328, 2010 WL 447013, at *8 (E.D. Va. Feb. 1, 2010), aff don other
grounds 436 Fed. App'x 227 (4th Cir. 2011). This is particularly true where the safety standard
in question has been formulated by the government in light of risks posed by the work
environment. See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 570-73 (1999); Tate, 268 F.3d
at 994.
Viewed in this light, the amphetamine ban is a "job-related" standard that is justified in
light of "business necessity." The parties agree that an EDD handler must "carry a firearm . . .
100% of the time." Stip. ^ 10, and must be ready, at any time, to "(1) provide emergency
response in . . . life threatening situations; (2) summon professional assistance and render first
responder first aid ... ; (3) [detect] explosive ordnance . ..; (4) prevent the unauthorized
introduction of explosive devices or matter; and (5) protect life and property." Stip. til.
Plaintiff conceded in his deposition that without his medication, he "can't do the job to the best
of [his] ability." [Dkt. 70-7] at 98:15-16. Moreover, plaintiff admits that if he were unable to
obtain, or forgot to take, his medication, he would be "taking a chance on [his] mind wandering
off or . . . symptoms oncoming, and [he would be in] a potentially dangerous situation and . . .
have other people's live in [his] hands and vice versa." [Dkt. 70-7] at 98:16-20. Plaintiff also
admitted it is possible (albeit unlikely) that he could be "stranded" for "more than a day" while
performing his job. [Dkt. 70-7] at 83:17. Considering the extreme hazards facing EDD handlers
in Baghdad, this Court will not "second guess" DOS' considered judgment that someone who
requires amphetamines to focus is unqualified to serve in the position, a judgment which Triple
Canopy had to implement under the terms of the DOS contract. The need to safeguard the EDD
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handlers, as well as the people they protect, permits DOS to determine that any risk in this
context is too great.
Plaintiff urges the Court to distinguish this case from the principles articulated in Tate
and Cochran on two bases: that the amphetamine ban is contractual, rather than statutory or
regulatory, and that Ruddell had in fact performed the job for several years without problems
while taking Adderall. PI. Opp. 23. For these propositions, plaintiff relies on Hoehn v. Inf 1Sec.
Servs. & Investigations. Inc. 120 F. Supp. 2d 257 (W.D.N.Y. 2000), in which the Western
District of New York held that a private security firm could not claim that a binocular vision
requirement was job-related merely because it was part of the firm's contract with the federal
government. Id. at 266. Plaintiffs reliance on that case is misplaced. The defendant's problem
in Hoehn was not that the vision requirement was contractual, but that the defendant had not
shown that the qualification was "job-related and consistent with business necessity." Id. at 265.
Plaintiffs past performance of hisjob was a piece of evidence suggesting that the requirement
was not "job-related and consistent with business necessity." See id. In particular, the Hoehn
court was not persuaded that the qualification adopted in that case was "based on considerations
of the general public's safety." Id
No such doubt exists in this case. The June 6 COR letterthat explicitly banned
amphetamine use cited the inconsistency of relying on such medication with working in a "high
threat environment." [Dkt. 70-18] at 1. Plaintiffs own admissions establish the risky nature of
an EDD handler's job. That Ruddell had not yet encountered a problem is not material to the ex
ante question facing Triple Canopy and DOS—whether someone taking Ruddell's medication
would be able to confront a threat arising at any point in the future. On that issue, no triable
question of fact remains. Whether it is framed as a "job-related requirement" or a "qualification
17
standard," the amphetamine ban is "job-related" and "consistent with business necessity."
Enforcement of the ban in this specific, very dangerous work environment therefore does not
violate the ADA, or for that matter the Rehabilitation Act, as a matter of law.
The parties have also sparred over whether the plaintiff is disabled, whether he could
perform the essential functions of the job with accommodation, and whether the adverse
employment action was a result of his disability. Because the failure of a plaintiff to meet any
one element of the required prima facie case entitles a defendant to summary judgment, the
Court need not address those arguments, see Rhodes, 636 F.3d at 94, and summary judgment
will be granted to the defendant on this claim.
3. Failure to Accommodate Claim
The parties initially dispute what "reasonable accommodation" the plaintiff may raise at
summary judgment. Defendant contends that plaintiff is bound by his answer in both his
deposition and interrogatory responses that the only basis for his reasonable accommodation
claim is Triple Canopy's failure to search its system for a vacant position on his behalf. Def.
Memo. 18. Plaintiff argues that "his correspondence with the Defendant. . . made it clear that
what he wanted was to return to work while continuing to take his prescription medication." PI.
Rep. 8.
Ordinarily, a party is bound by the responses he gives to discovery inquiries. See
Cleveland v. Policy Mgmt. Svs. Corp.. 526 U.S. 795, 806-07 (1999). Courts rightly view efforts
to introduce new theories of liability for the first time at summary judgment with skepticism.
See id. In its interrogatory, Triple Canopy asked Ruddell to "[s]tate each and every fact
supporting [his] contention that Defendant 'made no attempt to reasonably accommodate'" him.
[Dkt. 70-25] at 2. Plaintiffs reply makes no reference at all to his request that he be allowed to
18
continue working while taking Adderall. See [Dkt. 70-25] at 2. Instead, his one-paragraph
response focuses exclusively on Triple Canopy's failure to search for a new position that Ruddell
might fill. [Dkt. 70-25] at 2. Confronted with this interrogatory response at his deposition,
plaintiff was asked, "As you sit here today, are there any additional facts that you wish to
identify concerning your contention that Triple Canopy made no attempt to reasonably
accommodate you or assign you to other posts?" [Dkt. 70-7] at 227:19-228:1. Plaintiffs reply
was simply: "No." [Dkt. 70-7] at 228:2.
At summary judgment, plaintiff presses a second reasonable accommodation: permitting
Ruddell to continue working on the WPS Contract while taking Adderall. PI. Rep. 8. Although
this accommodation goes beyond the answers that the plaintiff gave in his deposition and his
interrogatory response, it does not go beyond the pre-deposition record. Plaintiffs email to
Triple Canopy representative Burnett on July 18, 2014, is a request to be permitted to return to
work on the WPS Contract while still taking Adderall. [Dkt. 70-23.] This is not an instance
where the plaintiff seeks to create a genuine issue of fact by introducing a post-deposition
affidavit or similarly late-filed document. See Policy Mgmt. Svs. Corp.. 526 U.S. at 806.
Consequently, the Court will consider the claim for reasonable accommodation as it relates to
both the request to continue on the WPS Contract while taking Adderall and to have defendant
search for a new position for the plaintiff.
To prevail on his reasonable accommodation claim, plaintiff must show that: (1) he was
disabled; (2) the employer knew of that disability; (3) if reasonably accommodated, the plaintiff
could perform the essential functions of the job; and (4) the employer declined to make such an
accommodation. Wilson v. Dollar Gen. Corp.. 717 F.3d 337, 345 (4th Cir. 2013). Once an
employee has reported a disability, the employer is under an obligation to engage in an
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"interactive process" to determine whether reasonable accommodation is possible. Because that
process must be truly "interactive," an employer is not required to continue the process when
"the employee cannot identify a reasonable accommodation that would have been possible." Id.
at 347; see also Bell v. Shinseki, 584 Fed. App'x 42, 43 (4th Cir. 2014) (summary judgment
proper because plaintiff "has not produced evidence that there were any positions available at the
time of her termination that she was qualified to fill"). Moreover, when one party stops
responding to the other, the court should be alert for '"signs of failure to participate in good
faith.'" Crabill v. Charlotte Mecklenburg Bd. of Educ, 423 Fed. App'x 314, 323 (4th Cir. 2011)
(quoting Beck v. Univ. of Wise Bd. of Regents, 75 F.3d 1130, 1135-36 (7th Cir. 1996)).
Because plaintiff, no less than defendant, has an obligation to engage in the interactive process in
good faith, "an employer cannot be faulted if after conferring with the employee to find possible
accommodations, the employee then fails to supply information that the employer needs or does
not answer the employer's request for more detailed proposals." Taylor v. Phoenixville School
Dist.. 184 F.3d 296, 317 (3d Cir. 1999).
Defendant argues that plaintiffs request to permit him to continue on the WPS Contract
while taking Adderall was impossible. Def. Opp. 17. On the request that Triple Canopy search
its database for a new position, Triple Canopy argues that Ruddell founders on three bases: the
requested accommodation is unrelated to his disability, Ruddell did not engage in the interactive
process in good faith, and Ruddell has failed to identify any available position that he was
qualified to fill. Def. Memo. 28-29.
Plaintiff has failed to produce any evidence that Triple Canopy could have permitted
Ruddell to work on the WPS Contract while taking Adderall. At oral argument, Plaintiff
contended that the DOS instruction mandated a case-by-case determination, rather than outright
20
banning everyone taking medications containing amphetamines. Although the June 6 DOS letter
does provide for individualized decisionmaking with respect to some substances (such as
medications that induce certain side effects), [Dkt. 70-18] at 2, its directive for those taking any
of the enumerated medications (including amphetamines) is clear: "it is incumbent on each WPS
Contractor to manage their personnel in a way that ensures no one is operating in a billable
capacity on the task order while taking (or under the influence of) any of the above substances,
their derivatives, and/or commercial/brand labeled medication which contains any of these
substances." [Dkt. 70-18] at 1. Plaintiff then claims that the COR letters were non-binding
guidance, but there is no evidence in the record to support that contention.3 In fact, the WPS
Contract explicitly incorporates by reference any "special orders" from DOS officials. [Dkt. 70-
11] at 2. Uncontradicted deposition testimony from Triple Canopy's corporate representative
states that defendant would lose the contract with DOS if it failed to comply with the
amphetamine ban. [Dkt. 70-12] at 26:17-18. Because the accommodation plaintiffrequests
would result in the elimination of the position, it is not a "possible" accommodation under the
ADA, and is therefore not "reasonable."
Turning to plaintiffs demand that defendant search its database for available positions,
defendant first argues that, because Ruddell's disability did notprevent him from searching
defendant's website, the requested act was not an "accommodation" of his disability. Def.
Memo. 29. This argument views the situation through an artificially narrow lens. Although
Ruddell does not allege that he would have trouble physically conducting the Internet search,
' Under Fed. R. Civ. P. 56(c), "[a] party asserting that a fact cannot be or is genuinely disputed
must support the assertion by . . . citing to particular parts of materials in the record. .. [or]
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."
21
according to him the reason the search needed to be conducted by defendant was because of
Triple Canopy's response to his disability. It is therefore wrong to say that searching for a new
position would not have been an "accommodation" of plaintiff s disability.
Even so, plaintiff had an obligation to participate in the interactive process in good faith
and identify an available position in which he was interested. The record demonstrates that he
did neither. When Burnett, a Triple Canopy human resources representative, informed plaintiff
that he could not continue on the WPS Contract, Burnett concluded the email by advising
Ruddell that he was "welcomed [sic] to search TC's non DoS programs for other positions."
[Dkt. 70-23.] Burnett specifically asked Ruddell to "[p]lease advise [Burnett] of [Ruddell's]
intentions." [Dkt. 70-23.] Plaintiff admits he never replied to that email. Ruddell Dep.,
[Dkt. 70-7] at 181:7—8. Instead, the record shows that he immediately forwarded the email to his
lawyer, who replied "That's great that's what we wanted to hear. Will prepare response on
Monday." [Dkt. 70-24] at 1. Plaintiffs failure to respond to Burnett demonstrates that he was
not engaged in the interactive process in good faith. That conclusion alone would entitle Triple
Canopy to judgment as a matter of law on the failure to accommodate claim.
Even if plaintiff had engaged in good faith to find a new position with defendant, he has
failed to identify an available Triple Canopy post that he was qualified to fill. At his deposition,
he was asked, "[A]s you sit here today, you can't identify any positions that were available at
that moment in time for which you were eligible, right?" [Dkt. 70-7] at 181:12-14. He replied,
"That's correct." [Dkt. 70-7] at 181:15. And there is no evidence in this record of Triple
Canopy having any open positions for which plaintiff was qualified. Elsewhere in his
deposition, Ruddell claims he spoke with Academi, which shares a parent corporation with
Triple Canopy, about one of Academi's K9 positions. [Dkt. 77-5] at 43:17-44:1. That
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conversation does not satisfy plaintiffs burden for two reasons. First, plaintiffs testimony
demonstrates that he did not hold the security clearance required to fill that post. [Dkt. 77-5]
at 43:19^5:17. Plaintiff was therefore not "qualified" to hold that position. Second, neither
Academi nor Constellis, the parent corporation, are named defendants in this case. Accordingly,
even if plaintiff had been qualified for a position with Academi, he has not satisfied his burden of
proving that Triple Canopy failed to reasonably accommodate him.
In sum, because plaintiffs evidence fails to show that the accommodations he requested
were reasonable, and fails to establish that he engaged in the interactive process in good faith,
defendant is entitled to judgment as a matter of law on the failure to accommodate claim.
III.
CONCLUSION
For the reasons discussed above, defendant's Motion for Summary Judgment will be
granted and plaintiffs Motion for Summary Judgment will be denied by an appropriate order to
be issued with this Memorandum Opinion.
Entered this ffl day of August, 2016.
Alexandria, Virginia
"XT'
Leonie M. Brinkema
United States District Judge
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