Evans v. Larchmont Infant Care Center et al
Filing
59
OPINION AND ORDER 38 MOTION for Summary Judgment by Larchmont Baptist Church Infant Care Center, Inc.. For the reasons stated herein, Defendant's motion for summary judgment, ECF No. 38, is DENIED. An amended scheduling order setting this matt er for trial, among other things, will be forthcoming. The Clerk shall promptly mail a copy of this Order to Plaintiff. IT IS SO ORDERED. Signed by Magistrate Judge F. Bradford Stillman and filed on 9/11/12. Copies distributed to all parties 9/11/12.(ldab, )
UNITED
FOR THE
STATES
EASTERN
DISTRICT
DISTRICT
Norfolk
NICOLE
D.
FILED
COURT
OF
VIRGINIA
SEP 1 1
Division
EVANS,
2012
CLERK, US DISTRICT COURT
NORFOLK, VA
Plaintiff,
Case
v.
LARCHMONT
INFANT
BAPTIST
CARE
No.:
2:llcv306
CHURCH
CENTER,
INC.
Defendant.
OPINION
Before
Care
Center,
on May 1,
to
the Court
judgment
the
"employer"
VII")
the
or
(the
2012.1 ECF No.
summary
because
Inc.'s
is
ICC
on
did
alleged
"ICC")
38.
not
Larchmont
Motion
for
Baptist
the
of
with
discrimination
July
No.
10,
number
21,
41.
federal
the Civil
of
2012,
2012,
the
statutory
Act
employees
the
Court
that
of
("ADA")
who is proceeding pro se,
a
Rebuttal
ordered
the
granted
definition
1964
at
of
("Title
the
time
occurred.
filed
Court
filed
discrimination claims
Rights Act
Disabilities
Evans,
Defendant
Infant
Summary Judgment,
Memorandum in Opposition and supporting exhibits
ECF
Church
Defendant argues that it is entitled
meet
VII
Americans
Plaintiff Nicole
a
Defendant
ORDER
Plaintiff's employment
under Title
the
AND
ICC
Brief
on
supplemental
employed.
ECF
timely filed
on May
May
18,
22,
2012.
briefing
No.
45.
2012.
On
on
On
the
August
Defendant an extension until August 27,
1 Defendant attached a Roseboro Notice to the motion.
-1-
2012,
to file evidence or supplemental briefing in support of the
instant motion
and
granted
Plaintiff until
September
respond or further supplement her briefing.
have
complied
Accordingly,
briefed
herein,
and
with
the
Court's
Defendant's
ready
for
I.
supplemental
Motion
for
Summary
disposition.
Defendant's motion
is
ECF No.
For
54.
2012,
to
The parties
briefing
Judgment
the
reasons
orders.
is
fully
set
forth
DENIED.
FACTUAL AND PROCEDURAL BACKGROUND
For the purpose of the instant motion,
not in dispute.
4,
the following facts are
The ICC is a former day care center.
Plaintiff was
employed as the Lead Teacher in the "Infant Room" at the ICC from
September 2006 until August 2009.
Am.
Compl.
2-3,
ECF No.
33 at 2-
3.
In July 2009,
for
allegedly
the
ICC discharged one of Plaintiff's coworkers
sleeping
on
the
job.
Id.
at
2.
The
coworker
subsequently filed a disability discrimination claim with the U.S.
Equal
Employment
attach.
3.
On
July
Kimberly Carmi,
24
into
investigation
witnessed the
Opportunity
and
the
July
31,
7.
29,
("EEOC").
2009,
in
claims,
ECF
connection
the
ICC s
No.
33
with
an
director,
asked Plaintiff to write a statement that she had
coworker
Plaintiff
2009,
July
coworker's
sleeping
sought similar statements
attach.
Commission
Ms.
3.
Ms.
Carmi
from other ICC staff members.
Id.
at
3,
at
3.
On
refused to
Carmi
on
the
write
distributed
-2-
job.
a
a
Id.
at
statement.
survey
Id.
regarding
staff's
awareness about the
attach.
August
9.
3,
ICC's policy against
Plaintiff
2009,
did
not
complete
Plaintiff wrote
a
sleeping on the job.
the
letter
survey.
to the
Id.
EEOC
at
Id.
3.
On
stating that
the coworker had been wrongfully terminated and that there had been
no formal discussions regarding sleeping on the
On August
7,
2009,
Ms.
Carmi
reassigned
of Assistant Teacher in the Toddler
Although
consequence
the
of the
ICC
did
not
II
reduce
reassignment,
job.
Plaintiff
Room.
Id.
Id.
4.
to the position
at
Plaintiff's
Plaintiff
attach.
3,
attach.
pay
alleges
rate
that
7.
as
a
her hours
were reduced from forty hours per week to thirty-two less hours.2
Id.
at
3.
attach.
which,
she had not received prior to her reassignment.
alleges,
She also began receiving written reprimands,
Id.
10,
17,
3,
11.
On August
the
8,
at
she
EEOC.
Id.
2009,
attach.
Plaintiff filed a
13.
Plaintiff was
retaliation charge with
later
transferred to
the
position of Lead Teacher in the "Transition Room."3 PL's Opp. Mem.
to
Def.'s
2010,
the
Sum.
ICC
J.
Mot.
Ex.
terminated
E,
ECF
No.
Plaintiff.
41
Am.
attach.
Compl.
8.
at
On
4.
June
3,
Plaintiff
alleges that the termination was the ICC's final act of retaliation
2 Payroll records from the relevant time period reveal that the
amount
of
Plaintiff's
reassignment.
weekly
Def.'s Sum.
J.
pay
Mot.
was
Ex.
reduced
1,
subsequent
ECF No.
38
attach.
to
her
1.
3 There is evidence that on September 28, 2009, after learning of
Plaintiff's EEOC charge,
the ICC director offered to transfer
Plaintiff to the position of Lead Teacher in the "Toddler I" room,
where she would have three assistants. ECF No. 33 attach. 11.
Plaintiff reportedly declined the offer.
-3-
Id.
related to
Plaintiff's conduct
coworker in 2009.
charge
alleging
environment
On July 15,
that
and
she
On August 26,
2010,
2010,
had
discharged
protected activity under
surrounding
Plaintiff
been
in
the termination of her
filed a
subjected
retaliation
the ADA.
Id.
the EEOC
issued a
to
for
attach.
a
second EEOC
hostile
work
participating
in
15.
Determination,
finding
that the ICC was an employer within the meaning of the ADA and that
[t]he
evidence
believe
the
reveals
Respondent
there
is
sufficient
retaliated
against
cause
the
to
Charging
Party by initially demoting her from Lead Teacher in
Infants to Assistant in Toddlers and then reassigning her
to the Transition Room. The evidence also reveals that
the Charging Party was further retaliated against in
being issued a Record of Discussion which had not been
issued to anyone previously. This action is in violation
of the Americans with
amended, Section 503.
PL's Opp.
Mem.
The
attached
EEOC
Determination.
the
terms
of
Disabilities
to Def.'s Sum.
a
ECF No.
the
J.
Mot.
proposed
33
16.
Right to Sue
attach.
18.
timely
June
2011.
9,
ECF No.
The
filed
on March
a
of
1990,
ECF No.
as
41 attach.
Agreement
to
4.
its
ICC declined to accept
Agreement,
Plaintiff a Notice of
Plaintiff
4,
Conciliation
attach.
Conciliation
Ex.
Act
and
18,
Complaint
the
2011.
in
EEOC
issued
ECF No.
this
Court
33
on
3.
Plaintiff's one-page complaint alleged retaliation under the
ADA and Title VII
the ICC,
of
the Civil
Rights Act
of
1964.
it named Kimberly Carmi and Laura Reed,
Board of Directors,
as individual defendants.
-4-
In addition to
Chair of the ICC's
On January 17,
2012,
the
ICC
and
complaint
state
a
Ms.
for
Reed
lack
claim.
the
ICC
On
23,
February
dismiss
29,
Plaintiff's
as
dismiss
jurisdiction
January
19,
complaint
2012,
case
to
matter
2012,
on the
ECF No.
the
the
Carmi
same
to
filed a
grounds
argued
sua
Carmi
sponte,
and Reed should not be
granted
ECF No.
the
ICC's
2012.
ECF No.
March
19,
31.
2012.
Answer to
She
4
be
filed
ECF No.
33.
the
Show
an
Amended
On
March
Cause
30,
2012,
dismissed
Defendant's
from
to
the
because
exhibits
on
filed
its
Defendants Carmi
and
ECF No.
36.
Plaintiff
had
failed
to
the
ICC
not
an
it
to
employed
this
that
case.
the
Acts'
Plaintiff's
Arbaugh v.
Court
matter
fifteen
In
its
denied
or more
&
the
2012
numerosity
rather
H Corp.,
than
a
546 U.S.
Plaintiff's
fact
employees
February 29,
employer
claim
Y
on
lack
ICC
employer within the definition of the ADA or Title VII because
predicated
for
the
2,
matter
never
dismiss
and
March
subject
was
to
case
on
of
jurisdiction
motion
2012,
the Court Ordered that
a
Order
Complaint
Plaintiff's Amended Complaint.
On March 21,
Reed
to
state
motion
30.
response
to
29.
granted Plaintiff leave to file an amended complaint.4 ECF No.
a
failure
directed
and
filed
for
failure
claim
Plaintiff
complaint
Court
and
Ms.
improper defendants.
2012,
Plaintiff's
25.
Court,
show cause why defendants
dismissed from the
On
On
motion
Reed's motion.
February
Plaintiff to
23.
Plaintiff's
and Ms.
a
subject
ECF No.
motion to dismiss
in
of
filed
motion
that
during
Order,
requirement
jurisdictional
500,
to
jurisdiction.
-5-
515
the
the
was
times
Court
was
an
relevant
explained
element
of
prerequisite.
See
(2006). Accordingly,
the
dismiss
for
lack
of
subject
demonstrate
VII.
that they were proper defendants under the ADA or Title
ECF No.
35.
On April
Plaintiff
30,
appeared
behalf of the
represented
there
was
Klein
ICC.
that
no
2012,
for
1,
ECF No.
the
requested
ICC
the
At
policy
to
to
a
as
cover
appeared
conference,
Mr.
corporation
Plaintiff's
Certificate
ICC's
a
Esq.,
a
Commission,
maintain
conference at which
Klein,
the status
had dissolved
the
status
Gregory
submitted
of
and
that
claims.
Mr.
Fact
from
the
that
the
existence
registered
Klein
states
which
corporate
on
agent.
on
June
ECF No.
30,
50.
On
ICC filed the instant motion for summary judgment.
The motion
a
37.
Corporation
failure
38.
and
ECF No.
terminated
2012,
se
insurance
State
Commission
the Court held a
pro
subsequently
Virginia
May
2012,
hearing
is
on
now
the
fully briefed and neither party has
matter.
Accordingly,
it
is
ready
for
disposition.
II.
Under Rule
judgment
to
any material
it
Lobby,
477
could
fact
law."
might
"genuine"
of the
JUDGMENT STANDARD
Federal Rules of Civil
should be granted only if "there
matter of
if
56
SUMMARY
Fed.
affect
U.S.
only
return
a
and
the
242,
if
R.
the
verdict
the movant
Civ.
P.
outcome
248
for
56(a).
of
(1986).
evidence
the
is
the
A
"is
A
fact
case.
dispute
such
summary
no genuine dispute as
entitled
non-moving
-6-
is
Procedure,
to
is
judgment
"material"
Anderson
of
that
v.
material
a
party."
a
only
Liberty
fact
reasonable
Id.
as
is
jury
The
party
seeking
responsibility of
motion"
and
summary
informing the district
demonstrating
fact.
When,
here,
the
trial,
the
of
v.
Catrett,
477
nonmoving party bears
moving
^showing'—that
court
absence
Celotex Corp.
at
is,
"bears
the
material
as
judgment
party
may
discharge
initial
of the basis
a
genuine
U.S.
the
the
its
dispute
317,
burden
323
of
(1986).
of persuasion
initial
pointing out to the district
for its
burden
"by
court—that there
is an absence of evidence to support the nonmoving party's case" or
by
producing
evidence
nonmoving party's
this
the
answers
to
specific
Id.
at
exists,
Id.
at
325.
the nonmoving party
by
her
own
interrogatories,
facts
essential
323,
showing
that
elements
If the movant
is
affidavits,
required
there
by
admissions
and
or
on
is
of
the
satisfies
"to go beyond
the
depositions,
file,
a
genuine
issue
determining
a
"court
whether
genuine
must
draw
a
dispute
of
all
reasonable
nonmoving party and may not make
weigh
(4th
and
negates
designate
for
trial."
325.
In
the
claims.
initial burden,
pleadings
that
the
evidence." Williams
Cir.
consider
2004).
materials
record evidence,
56(c)(3),
mindful
In
of
v.
conducting
cited
by
the
advisory
notes
Plaintiff's
2010.
pro
se
of
credibility determinations
or
In
-7-
is
the
status
Inc.,
analysis,
parties,
including that which
inferences
but
not
a
it
that
F.3d
court
may
cited.
instant
and
372
in
fact
favor
Staples,
this
material
need
667
only
consider
Fed.
case,
662,
R
the
documents
any
.Civ.
P.
Court
is
filed pro
se
are
"to
standards
Pardus,
1151
be
liberally
than formal
551
U.S.
(4th Cir.
89,
1978)
construed"
pleadings
94
and
held
drafted by
(2007);
Gordon
to
"less
stringent
lawyers." Erickson v.
v.
Leeke,
574
F.2d
1147,
("The Fourth Circuit takes the position that
its district courts must be especially solicitous of civil rights
plaintiffs.
This
counsel must
pro
se.").
be
solicitude
for
a
heightened when a
Accordingly,
the
civil
civil
Court
rights
rights
has
plaintiff
plaintiff appears
conducted
an
review of evidence filed in support of both parties'
III.
with
independent
positions.
DISCUSSION AND ANALYSIS
The ADA and Title VII define an employer as "a person engaged
in
an
industry
employees
for
affecting
each
commerce
working
day
who
in
has
each
fifteen
(15)
or
more
twenty
(20)
or
more
.
."42
of
calendar weeks in the current or preceding calendar year.
U.S.C.
§§
2000e(b),
12111(5).
The
fifteen
employee
.
numerosity
requirement is a threshold element of any plaintiff's retaliation
claim.
v.
See Arbauqh v.
Y & H Corp.,
Deltaville Boatyard,
at *7
(E.D.
Va.
Feb.
14,
LLC,
546 U.S.
Civil No.
2011)
500,
515
3:10cv491,
(citing Arbaugh).
(2006);
2011 WL 666050,
In determining the
number of individuals a defendant employed on a given day,
must
examine
the
number
of
individuals
with
Coles
whom
the
courts
defendant
maintained an employer/employee relationship rather than the number
of
individuals
Walters
v.
who
Metro.
worked
Educ.
or
were
Entr.,
compensated
Inc.,
-8-
519
U.S.
on
that
202,
206
day.
See
(1997).
Defendant argues that it
never
the
employed
years
fifteen
relevant
to
is entitled to summary judgment because
employees
the
instant
Plaintiff alleges that
in
2010
for
engaging
in
for
the
requisite
she was demoted in 2009 and terminated
protected
activity
in
is whether there
over
whether
numerosity
year
preceding
reassignment,
ICC
or 2010,
12111(5);
233
Va.
year
is a genuine dispute
2009,
("'Current
in
the
her
Co.,
calendar
year'"
42
947
is
2008,
year
termination.
CMA Constr.
see White v.
1996)
which
year of
Accordingly,
requirement
reassignment,
the
2009.
F.
alleged
harassment
Empresas
Diaz Masso,
Inc.,
Cir.
973-974
A.
2011);
(7th Cir.
v.
Castaways
Supp.
the
ICC's
Family
Diner,
453
231,
as
see
F.3d
§§
the
also
167,
F.3d
175
971,
2006).
Defendant Has Met Its
In support
of
Smith
651
her
U.S.C.
occurred.");
Hernandez-Miranda v.
the
of
defined
the
(1st
in
the
Plaintiff's
2000e(b),
(E.D.
met
during
dispute.
the question before the Court
the
period
it
Initial Burden on Summary Judgment.
of its position,
Defendant has
purported weekly payroll
submitted printouts
transactions
("the
ledger")
from January 2008 through December 2009.5 Def.'s Sum. J. Mot. Supp.
Mem.
Ex.
the
1,
names
individual
ECF No.
of
paid
did not
39
attach.
employees
work
in
a
1.
and
For
the
each
amount
given week,
5 Although not fatal to its motion,
-9-
his
the
they were
or her
ledger
paid.
name
is
lists
If
an
absent
Defendant has not submitted an
affidavit or declaration attesting to the
printouts.
week,
source or accuracy of the
from
the
list
for
that
week.
The
number
of
employees
paid
in
a
given week has been totaled and is hand-written to the right of the
employees'
names.
Id.
In
2008,
the total
number of employees paid
in any given week never exceeded fourteen.
Id.
indicate
paid
four
weeks
Id.
There
employees.
in
is
which
no
the
ledger
ICC
data
for
In 2009,
the totals
fifteen
the
week
or
more
of April
19,
2009.
Defendant has
former
director
states
that
employed
than
and
the
ICC.
Kimberly
responsible
in
2009
individuals
cannot produce
ever met the
Order,
its
that
submitted an Affidavit
and
on
ECF No.
initial
B.
2010,
Id.
Plaintiff s
the
ICC
ECF
"never
for
Ultimately,
evidence
Defendant's
burden on
Aff.,
weekly basis
sufficient
fifteen-employee
46.
Carmi
from Kimberly Carmi,
No.
55.
for managing the personnel the
a
than nineteen weeks."
Plaintiff
ICC
of
she was
fourteen
greater
also
ICC
employed more
period
Defendant
of
time
argues that
to establish that
requirement.
productions
a
It
Def.'s
Resp.
and argument
the
to Ct.
satisfies
summary judgment.
Evidence Establishes
a Genuine Dispute of
Material Fact.
Plaintiff
numerosity
contends,
requirement.
however,
In
her
that
opposition
primarily attacks the veracity of the
as
a
means
for
a
determining
employed
in
given
numerous
exhibits
in
week.
number
ECF
No.
of
her
-10-
ICC
satisfied
memorandum,
41
of
at
individuals
6.
position
She
to
its
use
Defendant
has
her
the
Plaintiff
ledger and questions
the
support
the
attached
opposition
memorandum.
Pursuant to this Court's
February 29,
2012 Order,
she
also attached documentation in support of her claims to her amended
complaint.
According
EEOC
to
identified
the
evidence
seventeen
weeks
employed fifteen employees.
interviewed
an
Plaintiff's
on
the
employee
claims
ledger.
that
during
ECF No.
during
Plaintiff
2009
41 attach.
an
in November 2009,
who was
41
from a
ECF
3,
41
Simpson
this
on
ledger
2009/
her
11.
the
inference
would produce
As
in
Plaintiff
has
submitted
Neither
ledger;
an
in its
an
fifteen
the EEOC
apparently not
into
listed
affidavit
and dated August
Sampson."
copies
is
ECF No.
time
cards
to July 31,
2009,
of
2009
2009.
Sampson
nor
reasonable
whether her name
a
to
is
Liz
infer
Sampson
Defendant makes no attempt to
five
Adding her to the employee
weeks
in
2009
in
which
the
employees.
out,
from the week of April
39
it
Reply brief.
additional
Plaintiff points
ECF No.
ICC
the
investigation
Elizabeth
however
she was an ICC employee.
ICC employed
which
However,
"Elizabeth
documentation presented that,
or Simpson,
pool
4.
attach.
appears
from the
rebut
at
including an
"Liz Simpson" that date from May 26,
No.
5.
the
Id.
sixteen employees,
attach
submitted,
in
on-site
A document entitled "State Tax Summary"
lists
has
attach.
that
1
she
Ms.
14,
at
was
Carmi's
2009,
30-31;
is
absent
from the
through the week of May 31,
however
employed
-11-
name
with
Ms.
the
Carmi
ICC
represents
in
2009
and
attests
to having direct
knowledge of the number of employees that
the
ICC employed throughout that year.
can
reasonably
infer
that
the
absence even though she was
at
ICC
From these facts,
employed
Ms.
not being paid.
Carmi
the Court
during
See Walters,
her
519 U.S.
208.
The
absent
same
can
from the
be
said
of
numerous
other
ledger during various weeks
individuals
who
are
in 2009 but who appear
regularly for periods before and after their absences.
For example,
Carmen
the
April
week
Navarrete
27,
of
2008.
is
April
ECF No.
5,
3,
she
respective
which
the
The
6
2010,
attach.
1.
as
She
early
is
reappears
she
when
date of hire
adding her and Ms.
their
absent
ledger
as
as
absent
ICC
payroll
from the
Documents
Navarrete
during her
absences
employed
of August
week
beginning
Carmen
the
records
Sawko
Defendant
on
of
the
the
as April
2009.
Carmi
produces
fifteen
ledger
9 and 15,
lists
changed
her
absence.
name
ECF No.
has
from
41
additional
and
-12-
attach.
8.
ICC during her
eight
twelve
weeks
but
19.
it
to
for
of
in
the
name is
reappears
indicate
Navarrete
8,
names
Sharon Hand's
2009,
submitted
Carmen
41
employees.
19,
attach.
lists Ms.
ECF No.
respectively.
July
submitted
ledger during the weeks
fourteen
2009,
Plaintiff
an
or more
ledger beginning
that
to the
has
2009,
dated October 23,
retained an employment relationship with the
absence,
weeks
the
An Organizational Chart
Navarrete-Sawko's
If
but
on
2009.6 She then remains on the ledger through the
week of January
Id.
39
2009,
week of July 19,
end.
listed
that
Carmen
on
Ms.
Sawko
August
still
16,
an
status
2009,
making it
reasonable to conclude that Ms.
ICC employee the week of August
as
such
transactions.
is
not
Veida
reflected
Evans
and
in
the
Shirley
2,
2009,
even though her
following
and
week's
payroll
Dailey
Bobby
absent from the ledger the week of August 15,
Hand was
are
2009,
all
but all three
appear regularly on the ledger in preceding and subsequent weeks.
ECF
No.
ICC's
39
attach.
payroll
1
at
during
33-35.
their
Adding
these
respective
individuals
absences
to
the
produces
an
additional two weeks in which the ICC employed fifteen employees.
Plaintiff has also submitted an affidavit from Linda Turnage,
in which Ms.
July
1999
Turnage attests that she was employed by the ICC from
through
January
organizational chart that
2011.
the
ICC
8.
Ms.
always
33
attach.
Linda Turnage Aff.,
Turnage attests that,
"has
No.
Plaintiff submitted lists Ms.
the Lead Teacher for preschoolers.
attach.
ECF
employed
12.
The
Turnage as
ECF No.
41
to the best of her knowledge,
fifteen
(15)
to
nineteen
(19)
employees due to the Staff to Children Ratio in each classroom."
ECF No.
33
attach.
12.
Although a cursory review of the ledger suggests that the ICC
failed to meet the numerosity requirement in 2008 or 2009,
whether
an employee worked or was compensated during a given week is not
dispositive
of
whether
the
defendant
relationship with that individual.
Viewing
the
record
evidence
in
-13-
maintained
See Walters,
the
light
an
employment
519 U.S.
most
at 206.
favorable
to
Plaintiff,
depict
it
the
seems
number
employment
on
inferences
in
its
fifteen
or more
is
more
Moreover,
the
given
of
the
Plaintiff,
in
2009
of
the
ledger that
the
ICC met
similarly
unable
to
numerosity
requirement
conclude
that
is the
submitted
Ms.
other
weeks
hand,
employees
employees
states
of
their
the
Edgar,
809
2008
and
is
may
that
or
not
has
is
missing
from
to
ICC
that
the
can
which
fourteen
2010.
ICC
1034,
2009.
employed
but
the
it
ledger
from
in 2009,
did
all
proffered.
conclude
not
Turnage's
always
the
it
meet
is
the
this
correct;
1039
(4th
-14-
case.
knowledge
not
of
relevant
however,
that
for
1987).
the
more
at
least
ICC
than
on
the
fifteen
Both women were
the
number
period.
making
of
Only one
credibility
summary judgment.
Cir.
Defendant
affidavit,
employed
to
claim
states
individuals
Ms.
relevant
and
be
ICC
an
identify at
twenty,
Defendant
affidavit,
the
years
and
have
unable
is
had
drawing
able to
ICC
nineteen
that
is a task for trial
F.2d
is
the
ICC employed during the
accounts
determinations
v.
the
in
ICC
issue of competing affidavits.
than
2009
during the
individuals
of
in
the
accurately
year.
Carmi's
nineteen
week
not
the numerosity requirement
there
more
whom
Court
2009
Court
Finally,
employed
19,
does
ledger
which
weeks
April
Although
never
in
the
Indeed,
four
altogether.
has
with
review
the
week
ledger
any
employees.
than
the
during
own
weeks
that
individuals
favor of
nineteen
far
of
relationship
Moreover,
least
apparent
Summerlin
Accordingly,
unable
to
employer
years
conclude,
within
2009,
or
this
a
genuine
least
is
a matter
to
2010.
Defendant
the
meaning
creates
employed at
as
on
the
relevant
evidence
based
judgment,
setting
this
of
the
dispute
Accordingly,
reasons
No.
the
matter
law,
that
ADA
and
of
the
Court
Defendant was
Title
the
fact
it,
VII
not
during
parties'
over whether
cannot
an
the
proffered
Defendant
for twenty weeks during
Court
is
conclude
2008,
that
summary judgment.
CONCLUSION
stated herein,
38,
before
Rather,
fifteen employees
entitled to
ECF
of
suit.
IV.
For the
record
is
for
DENIED.
trial,
Defendant's motion
An
amended
among
other
for summary
scheduling
things,
order
will
be
Order
to
forthcoming.
The
Clerk
shall
promptly
mail
a
copy
of
this
Plaintiff.
IT
IS
SO ORDERED.
UNITED STATES MAGISTRATE JUDGE
Norfolk,
Virginia
September U
, 2012
-15-
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