United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Senior United States District Judge
Donaldson filed this action against Trae-Fuels, LLC
("Trae-Fuels") and EnviroTech Services, Inc.
("EnviroTech"), asserting that he was terminated
because of his disability, in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§
12101-12213. The case is presently before the court on the
defendants' motion for summary judgment. The motion has
been fully briefed, and the court heard oral argument on the
motion on November 25, 2019. For the reasons set forth below,
the motion will be denied with respect to Donaldson's
claim of discriminatory termination.
following facts are either undisputed or presented in the
light most favorable to Donaldson. See Anderson v.
Liberty Lobby. Inc., 477 U.S. 242, 255 (198) ("The
evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his favor [when
ruling on a motion for summary judgment].").
worked as an accountant and controller for various companies
for 32 years. Donaldson Decl. ¶ 2, Dkt. No. 34. On
October 17, 2013, Donaldson began working as the controller
for Trae-Fuels, a start-up company in Bumpass, Virginia that
manufactured heating pellets. Id. ¶ 3; Compl.
¶ 1, Dkt. No. 1. EnviroTech, a corporation headquartered
in Colorado, was the managing member of Trae-Fuels and
jointly controlled Donaldson's employment. Comp. ¶
92. Donaldson reported directly to John Frink, the general
manager of Trae-Fuels, and Kevin Whyrick, the chief financial
officer of EnviroTech. Compl. ¶¶ 30-31. Chris
LaRocco, EnviroTech's corporate strategist, and Beth
Aleman, its director of human resources, also supervised the
performance of certain duties assigned to Donaldson.
Id. ¶¶ 35-36.
the first few months of Donaldson's employment,
Trae-Fuels was not yet producing heating pellets. Donaldson
Decl. ¶ 11. Instead, the defendants were still preparing
the plant to be operational. Id. It is undisputed
that Trae-Fuels "had little to no revenue as it began
production." Defs.' Reply Br. 18, Dkt. No. 33.
Trae-Fuels' controller, Donaldson was responsible for
creating financial reports and informing Frink of the
company's financial position. Donaldson Decl. ¶ 5.
Donaldson also managed Trae-Fuels' payroll system and
performed other human-resource functions, such as maintaining
employee files and sending hiring and insurance paperwork to
Aleman. Id. ¶ 6. Donaldson was not responsible
for any sales, inventory, or production decisions, and he did
not have authority to sign checks, send wire transfers, or
borrow against Trae-Fuels' line of credit at UMB Bank
without the approval of a supervisor. Id.
¶¶ 8-10, 15.
the time of his hiring in October 2013 until mid-May 2014,
Whyrick, Frink, LaRocco, and Aleman advised Donaldson that
they were satisfied with his performance. Id. ¶
16. Whyrick approved Donaldson's monthly financial
reports during that period, and Whyrick and LaRocco responded
favorably to the financial data and other information
Donaldson provided. Id. ¶ 18; see also
Pl.'s Ex. 7, Dkt. No. 29-1 ("Great work! Keep those
sales guys on the straight and narrow."); Pl.'sEx.
9, Dkt. No. 29-1 ("Okay, great data [Donaldson]!");
Pl.'s Ex. 11, Dkt. No. 29-2 ("FYI, here's an
email from [Donaldson]. This tells me that he is getting it.
I think he will be the guy that can take this stuff and run
with it, and make sure that it is accurate."). The only
negative written feedback Donaldson received during that
period pertained to his handling of paperwork required of new
employees and his method of creating journal entries for
certain invoices, which was viewed as being too
time-consuming. See Defs.' Ex. 1, Dkt. No. 27-5;
Defs.' Ex. 2, Dkt. No. 27-6; Defs.' Ex. 8, Dkt. No.
March 25, 2014, Donaldson was hospitalized after experiencing
significant blood loss. Donaldson Decl. ¶ 20. In April
of 2014, Donaldson learned that he had a mass on his
pancreas. Id. A biopsy was performed on May 2, 2014.
Pl.'s Ex. 24, Dkt. No. 29-2. A subsequent pathology
report indicated that the mass was "[p]ositive for
malignant cells characteristic of well differentiated
adenocarcinoma." Pl.'s Ex. 24, Dkt. No. 29-2. On
Thursday, May 15, 2014, Donaldson was informed that he had
"Stage IV inoperable adenocarcinoma pancreatic
cancer," and that he would need to see an oncologist on
Monday, May 19, 2014. Donaldson Decl. ¶ 21. Donaldson
shared the diagnosis with Frink and advised Frink that he
would need to take time off for the oncology appointment.
the oncology appointment, Donaldson was diagnosed with
pancreatitis. Id. ¶ 22; Pl.'s Ex. 24. He
was taken directly to the hospital, where he remained until
May 21, 2014. Donaldson Decl. ¶¶ 22-23. Donaldson
called Frink and informed him of the situation. Id.
Donaldson was in the hospital, he emailed Whyrick regarding
preliminary financial projections. Pl.'s Ex. 25, Dkt. No.
29-2. In response, Whyrick indicated that he knew that
Donaldson had been out with "health issues" and
inquired as to "when [Donaldson would] be back in the
office to get the team together to work on this."
Id. In reply, Donaldson advised Whyrick that he was
awaiting instructions from his doctors, and that he would let
Whyrick know as soon as possible. Id. Later that
same day, Whyrick sent Donaldson another email advising that
the defendants were in the process of trying to find a
controller to temporarily work part-time while Donaldson was
"going through this," and that they "would
need [Donaldson] there to get [the temporary employee] up to
speed." Id. On another occasion, Whyrick, who
is a survivor of Stage III colon cancer, "asked
[Donaldson] if [his] cancer was slow or aggressive, to which
[Donaldson] responded that it was slow." Donaldson Decl.
his hospital stay, Donaldson and his wife learned that they
had been chosen to adopt a baby who was scheduled to be born
on May 23, 2014. Donaldson Decl. ¶ 23. Upon being
released from the hospital, Donaldson and his wife flew to
Utah to adopt the baby. Id. Prior to traveling,
Donaldson drove to Trae-Fuels and dropped off his company
phone to be repaired while he was gone. Id.
returned to work on May 27, 2014. Id. That same day,
Frink asked Donaldson to meet with him. Id. ¶
24. When Donaldson entered Frink's office, he learned
that Aleman was participating in the meeting via telephone.
Id. According to Donaldson, "Aleman started off
the meeting by saying 'I'm documenting,' and then
began interrogating [Donaldson] about... leaving [his] work
phone at work during [his] trip to Utah." Id.
Donaldson explained that the phone was not charging properly,
and that he had asked that the phone be sent for repair.
Id. Donaldson further explained that he was
reachable on his personal cell phone. Id. At that
point, "Aleman backed off her criticism ... and the call
29, 2014, Whyrick and Donaldson engaged in email
communications regarding Trae-Fuels' financial position
and the fact that the company would need to draw on its line
of credit with UMB Bank. Pl.'s Ex. 47, Dkt. No. 29-2.
Donaldson emphasized that Trae-Fuels' account was down to
$115, 000, that $60, 000 would be debited the following day
for a loan payment, and that the following week was a payroll
week. Id., In response, Whyrick advised Donaldson that he
would "just need to let Yolanda Russell [at the bank]
know that [he needs] to borrow the money and how much."
Id. Whyrick also indicated that Donaldson would need
to submit a borrowing base report to the bank each month,
which should be signed by Frink. Id.
30, 2014, Donaldson sent Russell a borrowing base report via
email. Pl.'s Ex. 48, Dkt. No. 29-2. In the email, which
was copied to Whyrick and Frink, Donaldson advised Russell
that Trae-Fuels "would like to draw the eligible $669,
981." Id. On June 3, 2014, after speaking with
Russell and confirming that the borrowing base report was
acceptable, Donaldson informed Russell that Trae-Fuels would
only like to draw $500, 000 immediately and reserve the
remaining balance for future needs. Pl.'s Ex. 49, Dkt.
No. 29-2. That same day, Whyrick emailed Russell and
confirmed that he agreed with the borrowing schedule proposed
by Donaldson. Pl.'s Ex. 50, Dkt. No. 29-2.
4, 2014, Aleman and LaRocco traveled to Virginia to meet with
Donaldson and Frink. Donaldson Decl. ¶ 27. The parties
dispute what was said during the meeting. According to the
declarations submitted by the defendants, the meeting was a
"counseling session," held at the request of the
"management group," after Donaldson submitted
financial reports that were "inaccurate and missing
important data." Whyrick Decl. ¶ 10, Dkt. No. 27-2;
LaRocco Decl. ¶ 3, Dkt. No. 27-4; see also
Aleman Decl. ¶ 9, Dkt. No. 27-1 ("I... became aware
from ... Whyrick that the financial reports that Mr.
Donaldson prepared were incomplete and inaccurate. Mr.
Whyrick asked me to travel from EnviroTech's Colorado
headquarters to Trae[-]Fuels in Virginia to participate in a
face to face employee counseling session with Mr. Donaldson
on June 4, 2014."). According to Donaldson's
declaration, however, LaRocco and Aleman did not tell
Donaldson that he needed to improve his performance.
Donaldson Decl. ¶ 31. Instead, Aleman and LaRocco
advised Donaldson and Frink that EnviroTech was unhappy with
Trae-Fuels' financial losses, and that Donaldson needed
to ensure that Frink understood Trae-Fuels' financial
status. Donaldson Decl. ¶ 28.
5, 2014, LaRocco sent Whyrick and other EnviroTech executives
a list of "findings" from his visit to
Trae-Fuels' plant. Defs.' Ex. 12, Dkt. No. 27-16.
LaRocco observed that "[Frink] is hampered by day to day
operational issues and struggles to meet startup and
expansion expectations." Id. As for Donaldson,
LaRocco noted that "Donaldson's general disposition
favors scrutiny which lends to being overanalytical,"
that he "lacks the ability to translate
[Trae-Fuels'] finances into actionable plans," and
that he "also is lacking the confidence to voice his
concerns to [Frink] in a way that protects them from missing
profitability expectations and cash management objectives
(financial analysis)." Id.
6, 2014, Whyrick emailed Aleman and requested that she and
LaRocco "document" the meeting that was held with
Donaldson and Frink. Pl.'s Ex. 28, Dkt. 29-2. Whyrick
noted that "corrective actions should also be documented
should [Donaldson] not show improvement." Id.
Aleman subsequently completed and signed an EnviroTech form
titled "Employee Counseling Notice." Defs.' Ex.
3, Dkt. No. 27-7. Under the heading "Reason for
Notice," Aleman indicated that she, LaRocco, and Frink
met with Donaldson to "establish performance
expectations, specifically for the next two weeks."
Id. Aleman noted that LaRocco "explained the
necessity and the importance of how vital the controller
position is to the success of Trae-Fuels and how this
position needs to be current at all times with financial
reporting, including current cash flow." Id.
Aleman further noted that Donaldson was advised that he
"needs to meet daily with [Frink] to discuss current
financials and updates," and that "he needs to
focus on performing at a higher level and not in the
day-to-day 'weeds' of things going on in the
office." Id. Aleman also noted that she had
"removed all HR employee file responsibilities (except
the 5 exempt manager positions) from [Donaldson's]
responsibility" and reassigned them to the office
manager. Id. Under the heading "Next Step if
Infraction is repeated," Aleman indicated that
"[t]his was not discussed, as this first meeting was to
convey the expectations that are needed for the controller
position and more specifically, for [Donaldson] to understand
he needs to produce more qualitative/quantitative work and be
a hands on controller." Id. Although the
Employee Counseling Notice includes a line for the employee
to sign and date, Aleman did not have Donaldson sign the form
or provide him with a copy of it. Id.; see
also Donaldson Decl. ¶ 30.
Monday, June 9, 2019, Aleman emailed LaRocco to inform him
that Donaldson had left that morning for a second medical
evaluation and would not be returning until Friday at the
earliest. Pl.'s Ex. 42, Dkt. No. 29-2. Aleman also noted
that Donaldson had left his company phone for Frink to use
while he was gone. Id. Ina subsequent email, Aleman
questioned the amount of time that Donaldson would be away
from the office. See id ("[P]er conversations
with [Frink and the office manager], he told them he was
going to be gone 2 days, then it did go to 3 days when you
and I were there. Now it is 4 days and no
17, 2014, Donaldson emailed Frink, LaRocco, and Whyrick, and
advised them that he had requested that the bank transfer the
remaining balance of Trae-Fuels' line of credit.
Pl.'s Ex. 52, Dkt. No. 29-2. Donaldson noted that
Trae-Fuels would be left with only $35, 000 in cash, after
paying invoices and issuing payroll checks. Id. In
response, Whyrick indicated that he thought that it was time
for the members to make a "capital call*" and that
he "would recommend that this be an amount that can
sustain [Trae-Fuels] through this slow period in
same day, Frink forwarded Aleman a copy of his handwritten
notes from the June 4, 2014 meeting with Donaldson. Pl.'s
Ex. 38, Dkt. No. 29-2. In the email, Frink indicated that
there had been "some improvement" and that he would
"stay in touch with [Aleman] as things progress."
point thereafter, LaRocco and Michelle Mills,
EnviroTech's controller, were asked to evaluate
Donaldson's performance. On June 26, 2014, LaRocco
drafted a memorandum summarizing "Performance
Observations for Michael Donaldson" for the period of
June 4, 2014 to June 20, 2014. Defs.' Ex. 4, Dkt. No.
27-8. In the memorandum, LaRocco noted that he had asked
Donaldson to perform a cash-flow analysis on June 9, 2014,
and that Donaldson's "work product was
substandard." Id. LaRocco also noted that when
he asked Donaldson for the "current total obligations of
Trae-Fuels for cash-flow and [a] current cash analysis"
on June 17, 2014, Donaldson "neglected to divulge the
values of open Purchase Orders and unpaid Credit Card
statements which were needed to have the total obligations
value." Id. LaRocco then provided the following
Mr. Donaldson is very good at accounting. Mr. Donaldson is
very detailed in his communications, and is very detailed as
an auditor. Mr. Donaldson has failed however in his
responsibilities to keep Trae-Fuels['] cash position in
line with production outputs.
Example: On 6-4-14 Mr. Donaldson drew on Trae-Fuels[']
line of credit to pay for SG&A, and general operating
costs. Hence the draw against the line and used towards
paying for operating costs and current obligations in this
scenario meant that Trae-Fuels had gone cash negative/broke.
Id. Mills also prepared an undated report
criticizing Donaldson's performance. Defs.' Ex. 10,
Dkt. No. 27-14. In the report, Mills indicated that Donaldson
had "his own way of thinking and doing things" and
did not respond well to suggestions, that he took time to
perform duties that other employees should be doing, that he
was slow to use the company's industrial and financial
systems ("IFS") program, that concepts had to be
explained multiple times, and that Donaldson was "more
concerned on the things that don't matter, than the big
items he should be doing and reporting." Id.
Mills further opined that Donaldson was "not performing
as the controller of a company," that he was not taking