Butler v. Pepperdam Constr. Co.
| Decision Date | 01 March 2019 |
| Docket Number | C/A 2:17-1350-RMG-BM |
| Parties | ANDREW R. BUTLER, Plaintiff, v. PEPPERDAM CONSTRUCTION COMPANY, INC., Defendant. |
| Court | U.S. District Court — District of South Carolina |
This action has been filed by the Plaintiff, a former employee of the Defendant, asserting claims for discrimination and retaliation in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq. (First and Second Causes of Action). See Complaint.
The Defendant filed a motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., on November 13, 2018. Plaintiff filed a memorandum in opposition to the Defendant's motion on November 27, 2018, to which the Defendant filed a reply memorandum on December 4, 2018. Defendant's motion for summary judgment is now before the Court for disposition.1
Plaintiff was hired by the Defendant on or about October 1, 2015, where he worked as a Supervisor. Plaintiff's duties included, but were not limited to, ordering materials for jobs, being responsible for crew supervision, and implementing assignments for crew members. See Plaintiff's Deposition, p. 41.3
While working on December 10, 2015, Plaintiff and Jason Kobbe, a co-worker, were stopped at a traffic light in one of the Defendant's vehicles, when they were hit from behind by another vehicle. See Plaintiff's Exhibit B. The Defendant's vehicle sustained minor damage to the rear bumper. See Jennie Blanton Affidavit, ¶ 7. Following the accident, Plaintiff completed a company incident report which stated the nature of the injury as "impact" and the body parts affected as "shoulder and neck" for Kobbe and himself. Plaintiff and Kobbe both stated that no medical treatment was required and that neither employee even left work. See Jennie Blanton Affidavit, Exhibit A.
Kobbe attests that both employees had their seat belts on at the time of the accident, and that just before they were rear-ended, that Plaintiff said "hang on" or words to that effect indicating to Kobbe that Plaintiff noticed the other vehicle was about to make contact with their car. Kobbe also attests that the contact between the vehicles caused both of them to lunge forward. However, neither of them made any contact with the dashboard, steering wheel, windshield, or anyother part of the vehicle. Kobbe attests that he was not hurt or injured and did not require any medical attention, and that when they exited the vehicle, Plaintiff did not indicate that he was injured in any way or required medical treatment. Kobbe recalled Plaintiff saying the following day at work that he was a "little stiff and a little sore", but he did not state that he needed any medical attention, and they worked together throughout the day without Plaintiff indicating that his physical condition prevented him from performing any of the duties required of them. Kobbe further attests that Plaintiff was able to, and did, engage in all of the physical activity required of them during that workday. See Kobbe Affidavit, ¶¶ 4-9.
On January 22, 2016, Plaintiff presented to the St. Francis Hospital Emergency Department with complaints of "Motor Vehicle Collision". The treatment notes state that "[t]here is a concern for cervical radiculopathy C5-6 right and the patient may need an MRI of the cervical spine if he does not improve with conservative therapy." However, these notes also reflect that back pain was absent, that Plaintiff had full active range of motion in all extremities; that his sensation was intact; his right hand was normal with no signs of compartment syndrome; no pain with passive ROM, no numbness, no sensation deficit, no palor, and no weak pulses; and weight bearing was listed as "able to fully bear weight, without difficulty." The discharge notes reflect that no medications were administered. Plaintiff was advised to take ibuprofen, apply over the counter pain cream to his neck and upper back, and to follow up with a physician for a possible MRI. See Court Docket No. 24-4; see also Court Docket No. 24-5.
On February 29, 2016, Physician's Assistant (PA) Taylor Callinan saw Plaintiff with complaints of post-traumatic headache, sprain of joints and ligaments of unspecific part of neck,ulnar nerve damage, and right arm weakness. Callinan noted that Plaintiff's right arm strength diminished compared to left on physical exam, especially his biceps, and Plaintiff reported to PA Callinan that his right arm had become progressively worse over the last two months while working. See Court Docket No. 25-3.
On March 7, 2016, Dr. Jeffrey Buncher opined that Plaintiff had a sprain of the joints and ligaments of unspecified parts of his neck, and a "strain unsp musc/fasc/tend at shldr/up arm, unsp arm". Plaintiff received a plan of hot or cold packs therapy, electric stimulation therapy, and massage therapy. See Court Docket No. 24-6. Plaintiff followed up for additional therapy on March 7th, 15th, March 17th (where an assessment of lumbar sprain was also listed), March 23rd, March 24th, April 7th, April 14th, April 18th, and April 19th. See Court Docket Nos. 24-7 through 24-15. On April 7, 2016, Plaintiff also had a follow up appointment with PA Callinan, who opined that Plaintiff had bilateral SI joint tenderness. Although Plaintiff's musculoskeletal exam was normal, PA Callinan found that his extremities reflected a decreased grip on the right side and he had right hand weakness, weak intrinsics involving the index and middle finger, and his wrist extension had weakness. With regard to treatment, PA Callinan noted that she was awaiting the lumbar MRI results, while the Cervical radicultiis MRI reflected crowding of the right C7 nerve with pannus formation seen on C1. She indicated that she would consult with a radiologist about that finding. She further opined that Plaintiff's physical exam findings did not correlate with his level of weakness and noted that she would evaluate with EMG/NCS of the right arm. Finally, she noted that Plaintiff should continue with therapy and that his work status was light duty. See Court Docket No. 24-16; see also Court Docket No. 24-7.
In the interim, Dr. Buncher completed a doctor's report4 of work status and restrictions starting on March 3, 3016, which included left hand work only5, no lifting, no repeated bending/stooping, and no continual standing/walking/sitting/chairs. See Court Docket No. 24-2, p. 2. No indication is given on the form as to whether these were temporary or permanent restrictions, and the parties also dispute whether the Defendant had notice of these restrictions.6 See discussion, infra.
Notwithstanding these medical consultations, it is undisputed that Plaintiff continued working and performing his duties after the accident. See Jennie Blanton Affidavit, ¶¶ 8, 12-13; Plaintiff's Deposition, pp. 96-98. On May 27, 2016, Plaintiff was driving a company backhoe on a construction site when he ran into a company truck with the backhoe. After his accident involving the backhoe, Plaintiff was asked to take a urine test pursuant to the Defendant's company policy. See Jennie Blanton Affidavit, ¶¶ 12-13 & Exhibit D; Plaintiff's Deposition, p. 71 [See Court DocketNo. 24-19, p. 71]. The Defendant's drug policy, which Plaintiff signed, includes a provision that employees are required to undergo drug abuse urinalysis when involved in an on the job accident. See Court Docket No. 24-21, p. 9.7 However, Plaintiff refused to take the urine test, sending a text message to Brian Blanton8 (Jennie Blaton's son who served in an advisory role for the Defendant) which stated in the relevant section, See Court Docket No. 24-20, p. 8. Brian Blanton then texted to Plaintiff, "Did you make it to your drug test?" After not receiving a response, he then texted to Plaintiff the following day that "I'm assuming you quit since you didn't show up today?" Plaintiff then responded that he was at his weekend job and asked if he could return certain things the following day. After Brian responded that no one would be there the next day, Plaintiff stated that he would be there soon and inquired about calculation of hours accumulated for sick leave. Brian texted back that the "payroll department will buy back your leave." See Court Docket No. 24-20, p. 9. Although Plaintiff never returned to work, Brian and Plaintiff continued texting with each other over the next few days, with Brian texting to the Plaintiff on June 2, 2016: Id., at p. 11. However, although the Defendant asserts that Plaintiff quit by refusing to take the drug test and not returning to work, Plaintiff testified that he was fired by Jennie Blanton in her office (although he also testified that he could not remember the date or time this occurred). See Plaintiff's Deposition, p. 70 (Court Docket No. 25-1, p. 8).
Plaintiff contends in this lawsuit that he was fired because of a disability (various postural and lifting restrictions due to ulnar nerve damage) and out of retaliation for requesting reasonable accommodations for his condition. After receiving a Right to Sue letter from the EEOC, Plaintiff filed this lawsuit alleging that the Defendant violated his rights under the ADA.
The Defendant has moved for summary judgment on Plaintiff's claims. Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the...
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