United States District Court, E.D. Virginia, Alexandria Division
T. S. ELLIS, III, District Judge.
Plaintiff in this matter, Eugene Swann, alleges that he was discharged by his former employer, defendant U.S. Foods, in violation of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and retaliated against for engaging in protected activity under the ADA and the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. Defendant now moves for summary judgment on the grounds that the undisputed summary judgment record demonstrates:
(i) that plaintiff has failed to show that he is disabled within the meaning of the ADA and therefore has not established a prima facie case of ADA discrimination;
(ii) that plaintiff has not shown that he suffers a serious health condition within the meaning of the FMLA and thus cannot state a prima facie case of FMLA retaliation;
(iii) that plaintiff has not shown the requisite causal connection between his protected activity and the adverse employment action he suffered and thus has not established a prima facie case of ADA retaliation; and
(iv) that defendant has asserted a legitimate, nondiscriminatory reason for plaintiff's discharge and plaintiff has failed to show that this reason is pretextual.
For the reasons set forth below, defendant's motion for summary judgment must be granted.
The summary judgment record reflects the following facts. Plaintiff was a full-time employee of U.S. Foods from June 1996 to November 2012. (Pl.'s Aff. 1-2). He worked as a delivery truck driver primarily out of defendant's Manassas, Virginia depot. (Id. ). In 2008, Plaintiff took three months of FMLA leave to recuperate from surgery on his right leg. (Pl. Dep. 48-49). On June 21, 2012, while working at a U.S. Foods location in Hagerstown, Maryland, plaintiff injured his right wrist/hand, causing "pain [to] shoot up into his shoulder[ ] and numbness to the right hand." (Id. ¶ 14). Plaintiff reported the injury to his supervisor, who allegedly told him that he was needed at work that night. (Id. ). Plaintiff continued to work but experienced numbness in his right hand.
Six days later, on June 27, 2012, while unloading at Mercy Hospital in Baltimore, plaintiff again experienced severe pain in his right arm. (Id. ¶ 15). He was treated at Mercy Hospital and released. (Pl.'s Aff. 3). Upon returning to work in Manassas, defendant's Human Resources Coordinator, Pamela Ayers, advised plaintiff to visit a U.S. Foods-approved clinic for an evaluation. (Id. at 4). Plaintiff did so, and had an appointment with Dr. John Biddulph, an orthopedist, that same day. (Id. 6-8). After examining plaintiff, Dr. Biddulph concluded that plaintiff could continue to drive and work, but placed him on light duty with a 25-pound lifting restriction. (Id. at 8). Ayers was informed of this light duty work requirement and had plaintiff sign a Transitional Work Agreement ("TWA") to that effect. (Pl.'s Dep. 85). By signing the TWA, Plaintiff agreed that it his was responsibility to maintain his "limited duty status" and that he should notify a supervisor if he was asked to perform a task outside of those restrictions. (Id. at Ex. 14). While on light duty, plaintiff only did light duty work and does not remember anyone asking him to do work beyond his restrictions. (Id. at 211).
Dr. Biddulph released plaintiff back to full duty work on July 16, 2012. (Id. at 77). Plaintiff's wrist injury did not cause him to miss any time at work. (Id. at 55). The only time plaintiff missed work following the injury was from July 27, 2012 to mid-August 2012 when plaintiff took a vacation to the Bahamas that had been planned prior to his June 2012 injury. (Id. at 94-95).
Plaintiff filed for workers' compensation benefits in connection with his June 2012 injury. (Pl.'s Dep. 137, 161). When an employee files for workers' compensation, it is U.S. Foods' policy to schedule appointments for them with doctors the employees select from panels provided by a third party administrator. (Ayers Dep. 4-6, 20). Logistical challenges caused plaintiff to miss a few doctor's appointments, but he was ultimately able to see Dr. Michael Cohen, a neurologist, on September 20, 2012. (Pl.'s Dep. 90-94, 206).
On the morning of October 26, 2012, plaintiff and another U.S. Foods driver, Al-Sayid Abdullah, were involved in a confrontation while at the Manassas division yard. (Pillion Dep. 7-87). The parties dispute the nature and details of this "altercation." Defendant contends that Swann and Abdullah exchanged words and were "physically separated" by their supervisor, Mr. Butym. ( See Deft.'s SOF ¶¶ 27-33). Plaintiff contends that Mr. Butym simply stepped in the physical space between Swann and Abdullah and did not need to touch or restrain them physically. (Swann Aff. ¶¶ 40, 41). Although plaintiff contends that he did not actually issue any threats aloud to Abdullah, at the time he told investigators that he told Abdullah, "[I]f you want to get it on you can come out of the gate and we can-you can do what you want to do or we can get it on." (Pl.'s Dep. Ex. 20). Nevertheless, the material fact that some sort of disagreement or confrontation occurred between Abdullah and Swann is undisputed. After an investigation by U.S. Foods leadership, the company determined that both plaintiff and Abdullah violated its policy against workplace violence and both were discharged on November 1, 2012. (Rutherford Dep. 11-12, 62-63).
Plaintiff alleges that his termination was inconsistent with the manner in which defendant had previously punished alleged workplace violence issues. He points to two comparators: Kelvin Howard and Bruce Hommel. (Def.'s Opp'n at 25-26). Howard was suspended after a confrontation with Hommel over who would drive a preferred delivery route. (Howard Dep. 18, 20; Pl. Dep. 194-95; Pillion Ex. 1, 99:16-101:8). Howard was disciplined a second time for a verbal altercation with a customer at Ledo's Pizza. (Howard Dep. Ex. 2, at 48:4-13). Again, Howard was not terminated but was banned from driving the route that included Ledo's Pizza. The ...