Spivey v. Research Triangle Reg'l Pub. Transp. Auth.

• Decision Date: 10 August 2015
• Docket Number: NO.: 5:14-CV-44-FL,: 5:14-CV-44-FL
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: MICHAEL A. SPIVEY, Plaintiff, v. RESEARCH TRIANGLE REGIONAL PUBLIC TRANSPORTATION AUTHORITY d//b/a TRIANGLE TRANSIT, Defendant,

MICHAEL A. SPIVEY, Plaintiff, v. RESEARCH TRIANGLE REGIONALPUBLIC TRANSPORTATIONAUTHORITY d//b/a TRIANGLE TRANSIT, Defendant,

NO.: 5:14-CV-44-FL

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

August 10, 2015

ORDER AND MEMORANDUM AND RECOMMENDATION

This matter comes before the court on Defendant's motion for summary judgment [DE-19] and Defendant's motion to strike [DE-31]. All responsive briefing relating to summary judgment is complete; Plaintiff has not responded to Defendant's motion to strike and the time for doing so has expired. All matters raised in these motions are ripe for disposition. Defendant's motion to strike is to be determined by the undersigned in accordance with 28 U.S.C. § 636(b)(1)(A), See Local Civil Rule 72.3(b). As it relates to the motion for summary judgment, the parties have not consented to the jurisdiction of the magistrate judge; therefore, Defendant's motion is considered here as a recommendation to the District Court. See 28 U.S.C. § 636(b)(1)(B); see also Local Civil Rule 72.3(c). For the reasons set forth below, Defendant's motion to strike [DE-31] is ALLOWED and it is RECOMMENDED that Defendant's motion for summary judgment [DE-19] be ALLOWED.

I. STATEMENT OF THE CASE

On or about December 23, 2013, Plaintiff Michael A. Spivey ("Plaintiff") filed a summons and complaint in the Superior Court of Wake County, raising federal and state law claims related tothe termination of his employment with Defendant Research Triangle Regional Public Transportation Authority d/b/a Triangle Transit ("Defendant"). [DE-1-1]. In sum, Plaintiff alleges he was discriminated against in violation of the Americans with Disabilities Act ("ADA") and the North Carolina Persons with Disabilities Protection Act ("NCPDPA") when his requests for a reasonable accommodation related to his Post-Traumatic Stress Disorder ("PTSD") were denied, and he was retaliated against and ultimately terminated from employment.¹ See Compl. ¶¶ 7-32. Defendant removed the action to federal court pursuant to 28 U.S.C. § 1441. [DE-1]. On October 27, 2014, Defendant moved for summary judgment on Plaintiff's claims, to which Plaintiff responded² and Defendant replied. [DE-19, -20, -27-29]. On January 30, 2015, without obtaining leave of court, Plaintiff filed a surreply to Defendant's motion for summary judgment. [DE-30]. Defendant subsequently filed a motion to strike Plaintiff's surreply to which Plaintiff did not respond. [DE-31].

II. STATEMENT OF FACTS

A. Background

Defendant operates regional bus and shuttle service, para-transit services, and other transit-related services in the Raleigh-Durham-Chapel Hill area. Decl. of Tellis Chandler ("Chandler Decl.") [DE-19-3] ¶2; Decl. of Laurie Barrett ("Barrett Decl.") [DE-19-5] ¶2. Defendant employedPlaintiff as a bus operator from June 16, 2008 until May 7, 2013. Spivey Dep. [DE-19-1]³ p. 153:2-4; Chandler Decl. ¶ 2.

B. Plaintiff's Driving Incidents

All bus operators are trained to anticipate potential hazards while driving and are expected to practice defensive driving techniques. Chandler Decl., Ex. H. Defendant also maintains Departmental Work Rules and Procedures applicable to its bus drivers which characterize incidents as either "preventable" or "non-preventable." Spivey Dep. p. 42; Chandler Decl. ¶ 3. An incident is deemed to be preventable if an investigation reveals that the driver was a contributing factor to the incident. Chandler Decl. ¶ 3. A driver who accumulates three preventable incidents in a twenty-four month period may be subject to immediate termination. Id. A single preventable incident excludes the driver from receiving a safety bonus for the year in which the incident occurred. Id.

In 2009, Plaintiff was involved in two incidents involving the operation of his bus. The first occurred on August 10, 2009, when Plaintiff applied the brakes on his bus to avoid a potential collision with a fire truck exiting a fire station. Id. ¶ 4, Ex. A. As Plaintiff applied the brakes a passenger lost her balance and was thrown onto the floor of the bus, sliding on the floor and bumping her head and arms. Id. This incident was determined to be non-preventable. Id. ¶ 4. On September 8, 2009, Plaintiff was involved in a second incident. Id. ¶ 5. A bus passenger contacted Defendant and stated that she had fallen out of her seat and injured her knee when Plaintiff applied the brakes at an intersection. Id. This incident was also determined to be non-preventable. Id., Ex. C. Plaintiff received no discipline as a result of these preventable incidents. Spivey Dep. p. 42:20-22.

On January 7, 2011, Plaintiff was involved in an incident as he approached an intersection while the traffic light was changing. Id. p. 57:3-10, Ex. 8; Chandler Decl. ¶ 7. Plaintiff "started braking, chop and padding, if you want to call it that - stabbing . . . [to] keep from hitting the brakes too hard . . . ." Spivey Dep. p. 57:9-13, Ex. 8. As Plaintiff applied the brakes, a passenger sitting in the first front-facing (transverse) seat hit her knee on an exposed bolt on the armrest bar of a seat. Chandler Decl. ¶ 7, Ex. D; Spivey Dep. p. 57:16-20. Plaintiff's supervisor, Michael Rossiter, determined the incident was preventable. Chandler Decl. ¶ 8, Ex. E. Plaintiff objected to the characterization of the incident as preventable because the exposed bolt did not have any protective padding, which Plaintiff believed was a hazard, and also because he thought there may have been an issue with the anti-lock braking system ("ABS"). Spivey Dep. p. 67, Ex. 10. In a letter to Rossiter noting his objection, Plaintiff stated that "preventable measures should have been taken, it should have been preventable during procurement inspection." Id., Ex. 10; Chandler Decl., Ex. F. According to the letter, Plaintiff reviewed the Standard Bus Procurement Guidelines and identified safety hazards in the area of the incident. Id. Plaintiff stated there was an absence of padding or other protection on the armrest and that sharp protrusions that are a safety hazard should be covered or padded. Id.

As Defendant's Operations Manager, Chandler spoke to Plaintiff about his concerns. Chandler Decl. ¶ 8. Chandler also consulted the maintenance department who assured Chandler that the ABS lights functioned as designed. Id. Maintenance also added padding to the armrest on some of the buses. Spivey Dep. pp. 59-60:9; Chandler Decl. ¶ 8. Plaintiff subsequently raised the issue of seat configuration and the absence of a modesty panel or barrier in front of the first transverse seat behind the driver. Chandler Decl. ¶ 9. It appeared to Chandler that Plaintiff was trying to find areason to reclassify the January incident as non-preventable and that he should not have been held responsible if a modesty panel would have prevented the incident. Id.

Training coordinator Tammy Romain looked into the January 7 incident. She noted Plaintiff's "suggestions that modifications be made to the bus" regarding the incident and "that adding a modesty panel will help prevent passengers from injuries." Id. ¶ 11, Ex. H. Romain determined that even if a modesty panel were installed it would have only resulted in a different type of injury to the passenger. Id.

Chandler also reviewed the investigation of the January 7, 2011 incident. Id. ¶ 11. There was no in-bus video available and Chandler reviewed witness accounts which were not consistent. Id. Based on the differing witness accounts and the lack of video, Chandler determined the evidence was inconclusive and he recharacterised the incident as non-preventable. Id., Ex. I. Chandler informed Plaintiff of this determination in a memorandum dated January 27, 2011. Id.⁴

C. Plaintiff's Accommodation Request

In May and June 2011, Plaintiff compiled a packet of documentation (the "packet") with the subject line "Equal Protection and Duty of Care." Spivey Dep., Exs. 12 and 13.⁵ Chandler received the packet from Plaintiff dated May 20, 2011, with a revised cover latter dated June 22, 2011. Chandler Decl. ¶ 10. The following statements are made within the cover letter:

I was informed that I am disqualified for my safety incentive for 2011, but I am more concerned about the safety issue at hand unresolved! The following information is intended NOT to point fingers, but to find a solution for all parties that may be affected. Because of this continuing issue for equal protection, passengers sitting in the front areas of the Gillig's,⁶will have serious injuries depending on the position of impact to the vehicle. I have thought about this letter for sometime, sleeping with the reminder of the incident on 8-10-09 when a sleeping passenger was thrown (photo #1) 15 feet from her seat with no protection to the front of the bus during an emergency stop! . . . While at procurement, if the entire passenger safety areas were made a concern, instead of the industry promoting seating capacity for lower floor vehicles, passengers would have the same equal protection. . . . Equal protection not only covers the passengers, it protects the operator from having to worry about looking up in the mirror when they should be focusing on the front and side more instead when attempting to slow down! The front left seated area has to be a main part of his or her equation, when sometimes, because of unexpected events that may occur making it very difficult to focus on one area or the other. I can still remember the sound of Janice Hayes hitting the floor and watching her slide until she hit, her head against the GFI and front door of the bus motionless. During that time, this should have fully been address; video footage reviewed of the incident that happen. When this is resolved, an Equal Protection will be in place!

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SUMMATION

The current accident/incident 1-7-2011 was handled poorly, . . . a road supervisor should have come to the scene, but it seems that it was only an incident since no investigation took

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