Rhoads v. F.D.I.C., Civil No. K-94-1548.

• Decision Date: 22 February 1997
• Docket Number: Civil No. K-94-1548.
• Citation: 956 F.Supp. 1239
• Parties: Lori D. RHOADS, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION As Receiver for Standard Federal Savings Bank, et al., Defendants.
• Court: U.S. District Court — District of Maryland

956 F.Supp. 1239

Lori D. RHOADS, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION As Receiver for Standard Federal Savings Bank, et al., Defendants.

Civil No. K-94-1548.

United States District Court, D. Maryland.

February 22, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Fred Sommer, Rockville, MD, for plaintiff.

Robert P. Fletcher, Garrett S. Flynn, Nixon, Hargrave, Devans & Doyle, L.L.P., Washington, D.C., for F.D.I.C. as Receiver for Standard Federal Sav. Ass'n and as Receiver for Standard Federal Sav. Bank.

FRANK A. KAUFMAN, Senior District Judge.

In this case, Lori D. Rhoads, the plaintiff, asserts several claims against the Federal Deposit Insurance Corporation ("FDIC") as the receiver of her former employer Standard Federal Savings Bank ("SFSB"), and Standard Federal Savings Association ("SFSA"), all of which were triggered by her termination for excessive absences. Plaintiff asserts her absences from work were justified due to severe asthma and migraines, and protected by two federal statutes, the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12117 ("ADA") and the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 ("FMLA"), which establish federal question jurisdiction in this case. In its entirety, Rhoads's suit involves the following:

(1) Failure to make reasonable accommodations under the ADA (Counts II and VIII) (2) Retaliation under the ADA (Counts II and VIII);

(3) Interfering with, restraining, and denying plaintiff's exercise of her rights under the FMLA (Count I);

(4) Violation of Montgomery County Human Rights Law (Counts III and IX);

(5) Violation of a Maryland common-law "duty to provide a safe workplace" (Counts V and X); and

(6) Failure to pay accrued vacation pay in breach of an alleged employment agreement and the Maryland Wage and Payment and Collection Law (Counts VI and VII),

Counts I to III and V to VII are against the FDIC as Receiver for SFSA, plaintiff's employer from October 21, 1992 through September 15, 1993.¹ Counts VIII to X are against the FDIC as Receiver for SFSB, plaintiff's employer prior to October 21, 1992.² Before this Court are the defendants' summary judgment motion with regard to all of plaintiff's claims, and plaintiff's cross-motion for summary judgment with regard to Count I of her complaint (her FMLA claim against the SFSA), her claim for payment of unused vacation pay (Counts VI-VII), and SFSA's defense based on allegedly "after-acquired evidence" For the reasons discussed in this Opinion, defendants' summary judgment motion will be denied in-part and granted in-part, and plaintiff's summary judgment motion will be denied.

I. Summary Judgment Standard

Summary judgment is appropriate where "there is no genuine issue of material fact and [where] the moving party is entitled to judgment as a matter of law." Fed. R. Civ. Pro. 56(c). While the non-moving party is entitled to have "all reasonable inferences ... drawn in its respective favor," Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1129 (4th Cir.1987), the non-movant, in resisting summary judgment, must "go beyond the pleadings and by [its] own affidavits.... depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Summary judgment is appropriate, therefore, where there is no genuine issue of material fact that could lead a rational trier of fact to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

II. Statement of the Facts

Rhoads, a financial analyst, went to work for SFSB in September of 1987. Rhoads continued her work for SFSB and its successor SFSA, with a brief interruption from January, 1990 to February, 1991, until her termination on September 15, 1993. (Rhoads Dep. at 44.) Rhoads suffers from asthma, a chronic respiratory condition, and from severe migraines. (Rhoads Decl. ¶ 2.) Plaintiff's asthma and migraines are triggered by cigarette smoke. (Rhoads Decl. ¶ 5.) While working for the SFSB, and its successor, plaintiff was repeatedly exposed to cigarette smoke due to smoking among co-workers in the office. (Rhoads Dep. at 125-28.) Internal memorandums documented the negative effects plaintiff's exposure to cigarettes was having on her health. (Jones Dep. Ex. 10) ("As recently as February 18th Ms. Rhoads, was in the office and RTC officials were smoking. Ms. Rhoads became extremely ill due to smoke."); Rhoads Dep. Ex. 9 ("The smoking is having a devastating health effect on one of my employees. She is suffering pneumonia, bronchitis and several other adverse illnesses. Please stop smoking immediately."). Apparently, as a result of management's inability to control smoking among employees in the office, and hence, to aid in the improvement of Rhoads's health, Rhoads was allowed to work at home from May to August of 1993.³ (Muniz Dep. at 42; Rhoads Dep. at 130.)

Contemporaneous with Rhoads's ongoing struggle to achieve a workable accommodation from her employer with regard to her health conditions, SFSB was placed in receivership by the Office of Thrift Supervision ("OTS") on October 21, 1992, and the RTC was appointed as Receiver for SFSB. On the same day, OTS chartered a new federal mutual savings association, SFSA, and the RTC was appointed as Conservator for the new association. Although Rhoads's employment with SFSB was terminated at its receivership, she was hired simultaneously by the RTC/Conservator for SFSA.⁴

After the RTC intervention, SFSA began to take a more aggressive stance towards personnel matters, such as those involving the plaintiff, and consequently placed a large premium on the requirement that employees work at SFSA offices. (Jones Dep. at 233; Muniz Dep. at 286.) Rhoads was first apprised of that new emphasis on reporting to work, during a meeting at the SFSA's Fredericksburg Operations Center ("FOC") with R. Emmett Garlock, former president of SFSB, and then executive vice president of SFSA on August 12, 1993. (Rhoads Dep. at 303-05.) W. Marshall Jones, SFSA's Vice President of Human Resources, also participated in the meeting. During that meeting plaintiff was told she must report to work at the FOC on August 18, 1993, or qualify for SFSA's disability policy which required medical certification. (Rhoads Dep. at 305, 315.) Plaintiff said she could not report on that date due to her sensitivity to smoke, and its continued prevalence at the FOC. (Id.) In fact, on the way to the meeting, plaintiff observed employees smoking in the offices adjoining Garlock's office, both exposing her to smoke, and heightening her concerns. (Rhoads Dep. at 309.)

To accommodate plaintiff's concerns, SFSA officials moved the date Rhoads was to report to work to September 1, 1993, to coincide with the date the building became smoke-free. (Swenck Dep. at 24.) Rhoads was informed of that accommodation, and the addition of an air-purifier at her desk, in a letter which Jones sent to her on August 25, 1993. (Rhoads Dep. Ex. 18.) After the August 12, 1993 meeting, however, Rhoads maintains that she suffered a significant relapse of her poor health due to her exposure to smoke during her visit to FOC. Thus, by August 21, 1993, Rhoads suffered from migraines so severe that she sought treatment in a hospital emergency room. (Rhoads Decl. ¶ 10.)

On September 1, 1993 Rhoads called her supervisor to inform him that she was too sick to return to work. Against the aforementioned background, it is the events of the fifteen days stretching from September 1st to September 15th, which are quite critical to this suit.⁵ During that period, Rhoads maintained that she was too sick to return to work, and the RTC maintains she did not follow the institution's sick leave procedures, or appropriately establish her illness or disability with medical documentation. The RTC takes the position that Rhoads's disregard of SFSA policies justified Rhoads's termination for excessive and un-excused absenteeism. In that regard, the question arises as to whether the personnel policies of the SFSA should be the sole source of guidance for evaluating the legitimacy of Rhoads's termination, or whether the facts at hand cause the federal workplace mandates of the ADA or the FMLA to be otherwise applied.

The SFSA sick leave policy, as revealed in this case through witness testimony and exhibits, required employees to notify their supervisors when they could not report to work due to an illness. (Muniz Dep. at 31.) For absences of three to five days, employees were called upon to provide written certification from a doctor stating that the employee is ill and unable to report to work. (Muniz Dep. at 31.) Employees absent for more than ten days were required to ask for disability leave and to back up their request with a note from a doctor stating disability leave was necessary, or face termination, (Rhoads Dep. at 315; Pavlonnis Dep. Ex. 18 at 90062-63.)

While Rhoads notified her supervisor that she was ill and unable to report to work on September 1, 1993, and continued to make subsequent calls, she did not provide her employer with a note from a doctor certifying that she was too ill to work until after the close of business of her eleventh day away from work. (Muniz Dep. at 154.) Rhoads failed to provide a timely letter from a physician even though James Pavlonnis, her immediate supervisor, reminded Rhoads, on her eighth day absent, that an appropriate note was necessary to justify her absence, and Jones sent Rhoads a probation letter on her ninth day absent. (Pavlonnis Dep. Ex. 8; Rhoads Dep. Ex. 24.) Although sick leave was handled on a case-by-case basis by SFSA, and at times SFSA allowed its employees to provide documentation of their illness after they returned to work, witness testimony submitted in this case indicates...