Davis v. George Wash. Univ., Civil Action No.: 12-cv-1431 (RC)

CourtUnited States District Courts. United States District Court (Columbia)
Docket NumberCivil Action No.: 12-cv-1431 (RC)
Decision Date20 March 2014

Re Document No.: 14,15,16


Plaintiff, Anthony Davis, was employed as a service worker/housekeeper by Defendant, George Washington University from March 8, 2008 to December 13, 2010. Plaintiff was diagnosed with depression, bipolar disorder, and substance abuse. He was terminated by the University on December 13, 2010. Plaintiff now files suit against George Washington University on three counts: (1) failure to provide medical leave, and retaliation, in violation of the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., (2) failure to provide medical leave in violation of the D.C. Family Medical Leave Act ("DCFMLA"), D.C. Code § 32-503 (2001), and (3) discriminatory discharge, disparate treatment, hostile work environment on the basis of Plaintiff's disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Plaintiff also files suit against Aramark Facilities Services, LLC ("Aramark") for TortiousInterference with Employment/Contractual Relations. The Defendants have moved for summary judgment on all counts. As explained more fully below, the Court concludes that the Defendants' motions for summary judgment should be granted.

A. GW and its Relationship with Aramark

George Washington University (hereinafter "GW" or "the University") is a private academic institution established in 1821, with its main campus in the District of Columbia. The University has an agreement with Aramark where Aramark provides housekeeping and facilities maintenance services to the University. Decl. Suzanne Williams-Valentine¶ 6, Def.'s Mot. Summ. J. Ex. 3, July 15, 2013, ECF No. 15. Aramark handles the day-to-day supervision of GW's housekeeping service workers. Id. GW manages the service workers' payroll and the administration of their employment benefits. Id.

B. Mr. Davis's Position with GW

From March 8, 2008 until his termination on December 13, 2010, Mr. Davis was employed by GW as a service worker/housekeeper on the night shift in the Housekeeping Services Department. Decl. Williams-Valentine ¶ 5. He was a member of the Services Employees International Union, Local 32BJ ("Union"). Decl. Williams-Valentine ¶ 5.

Housekeeping Services is part of the Facilities Management Unit within the University's Facilities Services division. Id. In 2010, Mr. Davis reported directly to John Eshun ("Mr. Eshun"), then-Director of Facilities Management, who worked for Aramark. Id. at ¶ 7. Mr. Eshun, in turn, reported to on-site supervisor James Schrote, the Executive Director of Facilities Services and a GW employee. Id.

C. The Attendance Rules Applicable to Mr. Davis's Position

In his role as a housekeeper, Mr. Davis performed a number of traditional custodial duties, including mopping rooms, stripping and refinishing floors, washing windows and doors, operating buffers and vacuum cleaners, cleaning bathrooms, and polishing furniture. Service Worker Job Description, Def.'s Mot. Summ. J. Ex. 4. The University maintains that Mr. Davis worked as a part of a team of housekeepers, and so when an employee is unable to report to work, other employees' schedules have to be adjusted. Decl. Williams-Valentine at ¶ 8. This can cause essential work to be delayed or not performed, or may require overtime to be paid. Id.

Mr. Davis is governed by the rules set forth in the Department's Work Rules ("Work Rules"), the Employee Handbook, and the Collective Bargaining Agreement ("CBA"). Id. at ¶ 9. The University maintains that Mr. Davis received these documents during his employment, and that he knew their requirements. Id. Mr. Davis asserts that he believed that the rules in GW's Employee Handbook and the Work Rules did not apply to him because he was a union employee —instead he believed that only the rules in the CBA applied to him, and nothing else. Pl.'s Decl. ¶ 33, Pl.'s Opp'n Attach. 2, Aug. 15, 2013, ECF No. 18 . Under the Work Rules, "[a]n employee is expected to be at work on time and on a regular basis." Work Rules, Policy 1, Def.'s Mot. Summ. J. Ex. 5. "Excessive tardiness or absenteeism will not be tolerated," and a violation can subject the employee to disciplinary action. With respect to absences for sickness, the Work Rules state that employees are expected to "call in 2 hours prior to the beginning of their regular working hours" and receive permission to be absent from their supervisor. Id. Policy 31.b.

The Employee Handbook provides that when an emergency illness prevents an employee from reporting to work, he must notify his supervisor "as soon as possible," and for "frequent unplanned absences due to illness," the supervisor may require medical documentation.Employee Handbook §10.1.2, Def's Mot. Summ. J. Ex. 1. An employee who fails to provide such documentation may be considered Absent Without Approved Leave ("AWOL"), and three AWOLs "can result in disciplinary action up to and including termination." Id.

The CBA states that, to avoid AWOL status, an employee must "promptly provide[ ] documentation or other medical evidence that establishes to the Employer's satisfaction that the employee was unable to report to work due to illness." CBA §9.7, Def.'s Mot. Summ. J. Ex. 2. An employee who has "[t]hree absences without approved leave (AWOL)" is deemed to have engaged in conduct of a serious nature. Id. §20.2(12). Conduct of a "serious nature" may result in discharge without advance warning. Id. §20.1.

D. Mr. Davis's August 24, 2009 Termination

Mr. Davis was terminated from his position by GW on August 24, 2009. Decl. Williams-Valentine¶ 11. The University maintains that Mr. Davis was terminated for multiple absences from work without timely requesting leave, or without providing medical documentation to explain his absences. 2008 Notices of Absences, Def.'s Mot. Summ. J. Ex.6; Termination Letter (Aug. 24, 2009), Def.'s Mot. Summ. J. Ex. 7. Mr. Davis maintains that he was improperly marked as AWOL on numerous occasions prior to his August 24, 2009 termination. See generally Pl.'s Opp'n.

Following his termination, Mr. Davis and the University entered into a Last Chance Agreement ("LCA"), which reinstated Mr. Davis and treated the time between his August discharge and February 3, 2010 as an unpaid suspension. Decl. Valentine-Williams ¶ 11; LCA ¶ 1, Def.'s Mot. Summ. J. Ex. 8. The LCA required Mr. Davis "to meet normal performance expectations and to comply with the employment standards applicable to other employees in his position." Id. at ¶ 4. It also provided that "if Mr. Davis is absent from work without thepermission of his immediate supervisor on any occasion between February 3, 2010 and February 3, 2011, the University shall be entitled to discharge him immediately." Id. at ¶ 3 (emphasis added).

As a part of the LCA, the Union waived its right to grieve another discharge, other than to question "whether or not the immediate supervisor gave Mr. Davis permission to be absent." Id. As part of the agreement, Mr. Davis executed a Release, in which he waived all claims against GW and its agents related to the circumstances of the 2009 discharge pre-dating the Release's execution. Release, Def.'s Mot. Summ. J. Ex. 9.

E. Mr. Davis's Illness, and his Excused Sick Leave and FMLA Leave

Mr. Davis suffers from a variety of disorders, including depression, bipolar disorder, and substance abuse. Pl.'s Decl. ¶¶ 5-6, 14; Pl.'s Opp'n Exs. A-G. In November 2008, Mr. Davis disclosed to the University that he had a "Mental/Emotional" disability, which he identified as "depression." Voluntary Self- Identification Form, Nov. 1, 2008, Def.'s Mot. Summ. J. Ex. 22; Request for Accommodation form, Nov. 3, 2008, Def.'s Mot. Summ J. Ex. 23. Mr. Davis further disclosed that he was being treated with medication and psychotherapy related to his condition. Doctor's Documentation, April 7, 2008, Pl.'s Opp'n Ex. A. On May 20, 2008, Mr. Davis was hospitalized when he became dizzy and fainted, and was diagnosed with vertigo in connection with his depression medication. Discharge Documentation, May 20, 2008, Pl.'s Opp'n Ex. B. Plaintiff asserts that he provided these hospitalization records to his then-supervisor, Lance Kendall. Pl.'s Decl. ¶ 7.

In June 2009, Mr. Davis requested and was granted four days of FMLA leave for in-patient treatment relating to his substance abuse and psychological disorders. FMLA Certification, June 22, 2009, Def.'s Mot. Summ. J. Ex. 25.

Following his February 2010 reinstatement, Mr. Davis was granted FMLA leave or was excused from his absence on the following occasions:

• From July 11, 2010 to July 14, 2010, Mr. Davis was hospitalized in connection to his cocaine abuse and bipolar disorder. Discharge Documentation, July 14, 2010, Pl.'s Opp'nEx. G. Mr. Davis was not marked AWOL on these days.
• From August 8, 2010 to August 9, 2010, Mr. Davis was absent from work for an unknown reason. Leave Request Form, Pl.'s Opp'n, Ex. I. Mr. Davis was granted two days of sick leave for these absences.
• From August 11, 2010 to August 16, 2010, Mr. Davis was hospitalized for alcohol and cocaine abuse. Discharge Summary, Aug. 16, 2010, Pl.'s Opp'n Ex. J. Mr. Davis was not marked AWOL on these dates.
• On August 2, 2010, Mr. Davis requested and was granted FMLA leave from September 2 - 9, 2010, for inpatient treatment. FMLA Leave Request, Pl.'s Opp'n Ex. N; Patient Discharge, Pl.'s Opp'n Ex. P; File Closing Checklist, Pl's Opp'n Ex. O.
F. The Events Leading up To Mr. Davis's Termination on December 13, 2010

Mr. Davis was terminated on December 13, 2010, after he was marked as AWOL on eight occasions in 2010: July 7, July 22, November 2, ...

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