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Smith v. Strayer University Corp.

United States District Court, E.D. Virginia, Alexandria Division

January 13, 2015

CHERIE D. SMITH, Plaintiff,

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[Copyrighted Material Omitted]

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For Cherie D. Smith, Plaintiff: Heather Austin Jones, LEAD ATTORNEY, Daphne Shih Gebauer, Charlson Bredehoft Cohen & Brown PC, Reston, VA.

For The Strayer University Corporation, formerly known as Strayer University, Inc., Defendant: Susanne Marie Harris Carnell, LEAD ATTORNEY, Alexander Bennett Berger, Lorenger & Carnell PLC, Alexandria, VA.

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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]

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" ). (Id. at ¶ 2.) On January 27, 2006, Plaintiff resigned.

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(Id.) 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 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, part-time 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 part-time 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 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

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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. (Def.'s Stmt. ¶ 7.) By September of 2012, Defendant argues that Plaintiff agreed to work Monday nights when her husband did not 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. (Pl.'s Stmt. ¶ 9.) 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.)

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 was initiated and eight days before it was due to expire, Plaintiff submitted a request to Dean Corbi that she be

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allowed to work a " day shift," without proposing specific hours. (Stmt. ¶ 26.) On December 18, 2012, after providing Plaintiff the necessary ADA forms, Defendant received a formal " Request for Accommodation" that clarified the original request.[7] (Id. at ¶ ¶ 27-28.) 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. (Am. 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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 taken as a whole could lead a ...

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