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White v. Metropolitan Washington Ariports Authority

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

May 5, 2017

MARK WHITE, Plaintiff,


          Leonie M. Brinkema, United States District Judge

         Pro se plaintiff[1] Mark White ("White" or "plaintiff') formerly worked as a police officer for defendant Metropolitan Washington Airports Authority ("MWAA" or "defendant"). His six-count complaint alleges interference with his rights under the Family and Medical Leave Act ("FMLA") (Count 1); FMLA retaliation and discrimination (Count 2); unlawful medical inquiry under the Americans with Disabilities Act ("ADA") and Rehabilitation Act ("Rehab Act") (Count 3); removal from duty because of disability in violation of the ADA and Rehab Act (Count 4); termination because of disability in violation of the ADA and Rehab Act (Count 5); and retaliation in violation of the ADA and Rehab Act relating to his diabetes, and Title VII of the Civil Rights Act of 1964 ("Title VII") relating to a complaint of racial discrimination he made in March of 2015 (Count 6). Plaintiff seeks back pay, front pay in lieu of reinstatement, and liquidated damages pursuant to 29 U.S.C. § 2617.[2]

         Defendant moved for summary judgment as to all counts. On April 14, 2017, in open court, the Court orally granted the defendant's Motion for Summary Judgment, which was fully briefed by the parties. This Memorandum Opinion explains in more detail the reasons for that decision.

         I. BACKGROUND

         MWAA hired White as a police officer in 1988. Def. SUMF, [Dkt. 53] at ¶ 1. White was diagnosed with diabetes mellitus ("diabetes") in 2003 or 2004, and promptly informed MWAA of the diagnosis. Id. at ¶¶ 2, 3. At his deposition, White testified that MWAA required him to take an annual physical "since... as long as [he could] remember." Def. Ex. A, [Dkt. 53-1] at 32:22-33:5.[3] Because MWAA does not have in-house medical staff, it has a contract with INOVA Health Systems ("INOVA") to perform the annual physicals. Def. SUMF, [Dkt. 53] at ¶8.

         When White was first diagnosed with diabetes, he did not pass his annual physical and was not initially cleared for duty. Id. at ¶ 10. This situation was resolved when White's personal physician, Dr. Reginald Wallen ("Dr. Wallen"), later certified that plaintiff was fit to return to work. Id. at ¶ 11. White claims that he delivered the required certification from Dr. Wallen to Major George, an MWAA employee, rather than to INOVA. Def. Ex. A, pkt. 56-1] at 78:20-22. According to White, it was "normal procedure" to give such certification letters to the MWAA supervisor. Id. at 199:8-9. White only missed three days of work as a result of this episode. PI. SUMF, [Dkt. 56] at ¶ 11.

         On March 10, 2015, plaintiff wrote a letter to Bryan Norwood ("Norwood"), who was then MWAA's vice-president for public safety, complaining that the chief of police at the time, Stephen Holl ("Holl"), discriminated against African-American officers. PL Ex. 17, [Dkt. 56-17]. The two-page letter alleged that Holl was more tolerant of ethical lapses by white police officers than black officers. Id. The contents of this letter do not reference plaintiffs diabetes. See id.

         In early August 2015, Dr. Wallen conducted an annual physical examination of plaintiff, which showed an elevated "A1C level, " which is one metric for blood glucose. Def. SUMF, [Dkt. 53] at ¶ 16; Def. Ex. B, [Dkt. 53-2] at 13:17-18. On August 17, 2015, plaintiffmet with INOVA's Dr. Vasudha Joshi ("Dr. Joshi") for his MWAA annual physical. Def. SUMF, [Dkt. 53] at ¶ 17. White claims that during that appointment, Dr. Joshi told him that he "passed everything with flying colors." Def. Ex. A, [Dkt. 53-1] at 45:15-17. His fasting blood glucose level that day was 69, which White says is "better than most people that don't even have diabetes." Id. at 46:12-14. Although plaintiff claims that Dr. Joshi said "everything was fine, " the record shows that she nevertheless asked to see his A1C level, Id. at 46:1-3, and she gave White a form that instructed as follows:

You must have your personal physician sign the statement at the bottom of the page indicating whether or not you are able to perform the duties required for the job and if you need any restrictions. It is your responsibility to make sure your doctor includes the requested documentation. This report will be incomplete without this information. Please have your physician's office send or fax the completed form. Please note that submitting additional information, or a favorable recommendation from your personal physician, does not guarantee that we will be able to recommend a medical clearance to your employer.

Def. Ex. D, [Dkt. 53-4] (emphasis added). The form also requested that White and his doctor provide "[c]opies of recent physician report, hemoglobin Ale [sic] and any diagnostic tests ...documenting good control, absence of significant hypoglycemic events and lack of end organ damage." Id.

         Dr. Wallen completed the form on September 10, 2015, and returned it to Dr. Joshi. Def. Ex. D, [Dkt. 53-4]. The form shows that Dr. Wallen appears to have scratched out a marking originally made next to the box saying "employee is medically cleared to safely perform the job described above without restrictions." Id. Instead, Dr. Wallen checked the box saying "employee is not medically cleared to perform the job responsibilities as described above, " listing White's A1C count, 12, [4] as the reason. Id. As a result of receiving this report, INOVA reported to MWAA that White was not cleared for duty. Def. SUMF, [Dkt. 53] at ¶ 21.

         On September 18, 2015, White reported for duty to work overtime, although he was not scheduled for a regular shift that day. Def. Ex. A, [Dkt. 53-1] at 55:9-14. After the roll call, he was approached by a supervisor who told him, "We just got a letter from Dr. Joshi that said that you cannot work." Id. at 55:18-19. They were then joined by another supervisor, Major Naima Reed ("Reed"), Id. at 55:18-22, who gave White a copy of the form signed by Drs. Wallen and Joshi indicating that he was not cleared for duty, Id. at 56:4-6. Reed informed White that he did not "have to go home" that day, and could instead "just work the desk." Id. at 56:11-13. White responded, "[N]o I'm going home I didn't come here to work today, I didn't sign up to work the desk, I'm going home." Id. at 56:13-17. White claims he made that decision to leave because he was only there to work overtime and there was "no need" for him to work the desk, even though he acknowledges that he would have been compensated at the same rate for working the desk. Id. at 56:18-57:2.[5]

         In her deposition, Reed described having a more lengthy conversation with White on September 18:

I informed [White] on the 18th that if you were denying to work in a modified duty status based on your interim report from Dr. Joshi that [White] would be placed on FMLA.
[White's] response to me was that [he] had enough leave to take, so [he was] fine with FMLA. [He was] also aware of what FMLA was at the time, because I explained that to [him] as well as I explained the modified duty procedures. And [he] agreed to that because [he] said [he] had enough leave and that [he was] going to spend some time with [his] mother or something to that nature.

Def. Ex. F, [Dkt. 56-6] at 18:8-19. Reed also recalls that on September 18 White handed her a document from Kaiser, where Dr. Wallen works, and that she "told [him] specifically that any documentation that [he] had from [his] physician, that [he] needed to give that to Dr. Joshi." Id. at 11:7-l 1. Reed did not read or understand the document that White handed her that day. Id. at 11:11-14.

         White did not return to work after September 18, 2015. On September 21, 2015, he obtained a letter from Dr. Wallen stating, "You are fit for duty if your A1C of 9.3 is medically acceptable per guidelines for your employer, state and federal recommendations." PI. Ex. 4, [Dkt. 56-4]. There is no evidence in the record of White submitting that letter to Dr. Joshi.

         On September 23, 2015, MWAA sent White a letter informing him that he had been placed on FMLA leave effective September 23, 2015. See Def. Ex. H, [Dkt. 53-8]. The letter informed White that he had twelve weeks of FMLA leave available, but did not mention that he would be required to provide medical certification before he could return to work. See id The FMLA designation letter included an attachment, which contained guidance about FMLA leave for employers and employees. PL Ex. 6, [Dkt. 56-6]. On the last page of the "Employee's Guide, " the following question and answer appeared:

Q: After I have used my 12-weeks of FMLA and want to come back to work, can my supervisor require certification of physical/medical ability to do the work? A. Yes. However, your health care provider must provide the certification and you must be notified by your supervisor in advance that this certification will be required. Once received, if your supervisor has any questions or concerns about the certification, and receives your permission, the Office of Human Resources will consult with an occupational medical provider who will review it and who may consult with your personal physician if needed.

Id. at 3-7 (emphasis in original). The enclosure then provided a contact number for additional information. Id.

         On September 24, 2015, White wrote to Norwood, then MWAA's vice-president for public safety, complaining that he had been discriminated against on the basis of his diabetes. White purported to cite a publication of the American Diabetes Association, although he has not provided the original document, claiming that it said, "An A1C cut-off score is not medically justify [sic] in employment evaluations and should never be the sole basis for an employment decision" because "A1C ... results are of no value in predicting short-term complications of diabetes." PI. Ex. 5, [Dkt. 56-5] at 1. White attached a copy of Dr. Wallen's September 21 letter, stating that his A1C was now 9.3. Id. at 2. It is undisputed that he did not send that letter to INOVA.

         On October 15, 2015, White wrote a letter to Susan Carrol ("Carrol"), Chief Executive Officer of INOVA, claiming that Dr. Wallen initially cleared him for duty, but changed his finding when Dr. Joshi informed him that an A1C level of 12 was too high. PI. Ex. 14, [Dkt. 56- 14] at 2. White also claimed that his A1C as of September 18 was in fact 9.2, although he did not say he was attaching a copy of Dr. Wallen's September 21 letter, and there is no evidence in this record that he included the letter. See id.

         White allegedly called Mike Leyva ("Leyva") on the telephone, [6] who told White that there had "been a misunderstanding" and that "Dr. Joshi [was] going to send [him] a letter that will clarify the thing [and] tell [him] what's wrong." Def. Ex. A, [Dkt. 56-1] at 72:4-8. Leyva told White to "just wait at [his] house" and that the letter was on its way and "would explain everything." Id. at 72:8-10.

         On October 27, 2015, White received another medical authorization form sent by INOVA. This form was substantially identical to the form he had been given in September, and stated:

Your medical examination performed on 8/17/15 for your position as a police officer was significant for: poorly controlled [diabetes]. Unless your personal physician can provide more information about this condition by 12/18/15, we will not be able to complete the medical determination for your employer.

Def. Ex. J, [Dkt. 53-10]. The letter instructed White as follows:

You must have your personal physician sign the statement at the bottom of the page indicating whether or not you are able to perform the duties required for the job and if you need any restrictions. It is your responsibility to make sure your doctor includes the requested documentation.

Id. Once again, the letter specifically requested documentation of recent physician reports and A1C tests. Id.

         Rather than following this very clear instruction, White called both Drs. Joshi and Wallen on the telephone. Def. Ex. A, [Dkt. 53-1] at 80:2-13. When asked at his deposition why he did not take the INOVA form directly to Dr. Wallen, White testified:

Because I called Dr. Joshi when I received this, I called her, because I was given the impression that she was going to call me and explain to me the nature of my illness, why I could not go back to work. Mr. Leyva had already told me on the phone that it was a misunderstanding, Dr. Joshi was going to explain to me the nature of my illness and what I need to receive. This [form] does not explain the nature of my illness.
When I received this, I called Dr. Joshi and I asked her, what is this that you're sending me, I was expecting you to tell me what's wrong with me. She said, you're going to-she just was rude again, you're going to be out of work until December, and hung up the phone.
I called Mike Leyva and talked to Mike Leyva. I said, what is this, you told me that it was-he said, hey, look, Dr. Joshi didn't do anything wrong, and hung up the phone. So I kept calling him back and no one never answered the phone [sic].
So I didn't know what this [form] is, no one ever explained to me what I need to do with it. I said, this is what-I've already got this, this is the same thing, this has already been filled out ...

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