United States District Court, W.D. Virginia, Abingdon Division
HAROLD E. LEONARD, Plaintiff,
ELECTRO-MECHANICAL CORPORATION, Defendant
For Harold E Leonard, Plaintiff: Hilary K. Johnson, HILARY K. JOHNSON, PC, ABINGDON, VA.
For Electro-Mechanical Corporation, Defendant: Elizabeth Hope Cothran, Patice L. Holland, Victor O'Neil Cardwell, LEAD ATTORNEYS, Woods Rogers PLC, Roanoke, VA.
Hon. Glen E. Conrad, Chief United States District Judge.
In this employment discrimination action, the plaintiff claims that the defendant violated his rights under the Americans with Disabilities Act (ADA), 42 U.S.C. § § 12101-12117, and the Family and Medical Leave Act (FMLA), 29 U.S.C. § § 2601-2654. The case is presently before the court on the defendant's motion for summary
judgment. For the reasons set forth below, the motion will be granted.
The following facts are presented in the light most favorable to the plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (noting that all evidence must be construed in the light most favorable to the party opposing summary judgment).
From April 8, 2002 until July 12, 2012, Harold E. Leonard was employed as a janitor for Electro-Mechanical Corporation (Electro), a manufacturing company headquartered in Bristol, Virginia. Leonard's primary duties included emptying trash cans, picking up trash in the company parking lot, cleaning up broken glass, sweeping the sidewalks, vacuuming the entryway, and stripping and waxing the floors.
Leonard suffers from degenerative disc disease. During his period of employment with Electro, this condition periodically resulted in pain " flare-ups," which varied in severity. Leonard Dep. at 90, 132-33. When Leonard experienced " little flare-up[s]," which caused his hip and leg to " hurt real[ly] bad," he would sit down for up to five minutes to reduce the pressure. Id. at 132-33. When he experienced flare-ups that resulted in more severe pain, he would take FMLA leave and undergo epidural steroid injections. Id. at 90, 132.
On or about March 29, 2012, Leonard told his supervisor, Brian Harris, that his wife was having a surgical procedure performed on April 2, 2012, and that he needed to take leave to go with her. Leonard subsequently learned that his wife's surgery would not be performed until April 3, 2012. Consequently, he went to work on April 2, 2012, rather than taking leave that day. After working a few hours, Leonard " got [a] catch in [his] back and pain started going down [his] leg." Id. at 220. Upon seeing Leonard in pain, Harris advised him to " go on home." Id.
Leonard remained off work from April 3, 2012 until April 6, 2012. During that time, Leonard did not call in to advise Electro that he would be absent. Upon returning to work on April 9, 2012, Leonard presented the company with two return-to-work certificates from his treating physician, Dr. Shannon Finch, who had given him an epidural steroid injection for pain. Id. at 109. The certificates requested that Leonard be excused from work the previous week.
On April 10, 2012, Sherie Huggins, Electro's Human Resources Manager, and Mike Stollings, another Human Resources representative, met with Leonard regarding his absences and his failure to call in as required by the company's attendance policy. Stollings explained the attendance policy to Leonard, and told him that he had no choice but to issue a one-day suspension. Leonard " accept[ed]" the action, recognizing that " it was [his] fault" for not calling in to report his absences. Id. at 117.
During the April 10, 2012 meeting, Leonard received a written job description for Dr. Finch to review and sign. Dr. Finch faxed the signed form to Electro on April 12, 2012. By signing the form, Dr. Finch confirmed that he had read the description of Leonard's janitorial responsibilities and was of the opinion that Leonard was " fit for duty with no restrictions." Leonard Dep. Ex. 9 at 2. Upon obtaining the form, Electro allowed Leonard to return to work. Leonard proceeded to work without interruption until June 7, 2012.
Less than six weeks after Dr. Finch faxed the signed job description to Electro, he sent the company a Certification of Health Care Provider for Employee's Serious Health Condition (FMLA) form, which
he completed on May 21, 2012 after examining Leonard. Dr. Finch reported that he had treated Leonard for degenerative disc disease on several occasions including that date, and that Leonard " cannot perform any job [functions] when [the] condition flares." Leonard Dep. Ex. 10 at 2. Dr. Finch noted that the condition causes flare-ups that would periodically prevent Leonard from performing his job, and that it would be necessary for Leonard to be absent from work during the flare-ups. Id. at 3. When asked to estimate the frequency of the flare-ups that Leonard may have over the next six months, Dr. Finch indicated that he may have one to two episodes per month that last three to five days per episode. Id.
On the morning of June 6, 2012, Leonard approached Todd Dewar, Electro's General Manager, at the suggestion of another employee, and advised Dewar of his back impairment and the fact that he occasionally needed to sit and rest. During his deposition, Leonard provided the following summary of the conversation:
. . . Todd was coming through and I was dumping trash. And I . . . asked Todd about his back.
I said, " I heard you had back trouble."
He said, " I had a cyst taken off of my back when I was younger." I told him that I had back trouble too, degenerative disc disease.
And I sa[id], " Occasionally I have a flare-up. Whenever I do, I have to sit down for just a minute or two, maybe five minutes, and I get up and I'm fine. Go back to work."
And that was all that was said.
Leonard Dep. at 135.
On the afternoon of June 6, 2012, Dewar sent an email to Huggins and Stollings regarding his conversation with Leonard. The email stated as follows:
This morning Harold pulled me aside and asked about my previous back issues -- referring to my spine surgery some 20 years ago. Harold relayed that he was having back issues of his own -- more specifically that he had " degenerating" disks and bones in his lower back. He stated that this was causing him pain when he lifted the trash cans to empty them. He then said that this pain would cause him to sit and rest for 5 to 10 minutes after which he would feel better and could continue his work. Finally he noted this was a constant issue he was dealing with and I may see him frequently " resting."
At this point, I have concerns with him being on the floor and his ability to do the job in the shop -- for his safety and well being as well as that of others. Please let me know if ...