Ball v. George Wash. Univ.

AARON BALL, Plaintiff, v. GEORGE WASHINGTON UNIVERSITY, Defendant.

No. 17-cv-507 (DLF)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 31, 2019

MEMORANDUM OPINION

The plaintiff, Aaron Ball, brings this action against his former employer, George Washington University, under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., the District of Columbia Human Rights Act (DCHRA), D.C. Code § 2-1401.01 et seq., and the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq. Before the Court is the defendant's Motion for Summary Judgment, Dkt. 28. For the reasons that follow, the Court will grant the motion.

I. BACKGROUND

A. Ball's Employment History and Requests for Medical and Disability Leave

George Washington University (GW) employed Aaron Ball as a plumber from December 2008 until he was terminated on August 13, 2015. Pl.'s Response to GW's Statement of Material Facts (Pl.'s Response) ¶¶ 2, 205, Dkt. 29-1.¹

During Ball's employment, GW maintained several leave policies. Id. ¶¶ 6-7; 10-11. The FMLA gives eligible employees the right to take up "to twelve weeks of unpaid leave during any twelve-month period if a 'serious health condition' prevents [them] from performing [their] job functions." Hopkins v. Grant Thornton Int'l, 851 F. Supp. 2d 146, 151-52 (D.D.C. 2012), aff'd sub nom. Hopkins v. Grant Thornton, LLP, 529 F. App'x 1 (D.C. Cir. 2013). And the "DC counterpart" to the FMLA—called the "DCFMLA"—provides a similar right to take up to sixteen weeks of unpaid leave during any twenty-four month period. Thomas v. District of Columbia, 227 F. Supp. 3d 88, 98 (D.D.C. 2016) (internal quotation marks omitted). GW allows its employees to take unpaid medical leave under both the FMLA and the DCFMLA. Pl.'s Response ¶ 9. If, after exhausting FMLA and DCFMLA leave, an employee is still unable to return to work, the employee may seek additional unpaid leave as an ADA or DCHRA accommodation. Id. ¶ 10.

Between March 5, 2013 and June 9, 2014, Ball requested and was granted over twenty-seven weeks of leave under the FMLA and DCFMLA. Id. ¶¶ 78, 81.² Ball then requested and was granted an additional six months of medical leave from June 9, 2014 to December 19, 2014 as an ADA accommodation. Id. ¶ 83.

On January 30, 2015, Ball again sought FMLA and DCFMLA leave, but GW denied his request because he had already exhausted his leave under both statutes. Id. ¶¶ 88-89. A few days later, on February 2, 2015, Ball requested leave again, this time as an ADA accommodation. Id. ¶ 90. GW granted Ball temporary leave from February 2, 2015 to March 11, 2015 so that GW and Ball could engage in the "interactive process" contemplated by theADA. Id. ¶ 91; see also 29 C.F.R. § 1630.2(o)(3) (describing "an informal, interactive process" through which the employer and employee work together to identify a reasonable accommodation); Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (same). During Ball's leave, on February 27, 2015, interim facilities director Harold Speed sent a letter to an Equal Employment Opportunity official at GW stating that extending Ball's leave as requested would impose an "undue hardship" on the facilities department. See Pl.'s Opp'n Ex. 14 at Ball_000397, Dkt. 29-16. The letter explained that GW's plumbing unit had already "been operating below capacity" for a year, with two other vacancies and another employee (besides Ball) on medical leave. Id. According to the letter, this shortage had already created a backlog of work orders that required available plumbers to work overtime to keep up with daily requests. Id.

When Ball's leave and the interactive process ended on March 11, 2015, GW denied Ball's request to remain on medical leave on the ground that granting the accommodation would impose an undue hardship on GW's operations. Owens Decl. Ex. O., Dkt. 28-4. Eight days later, on March 19, 2015, Ball became eligible for and requested leave under the FMLA and DCFMLA. Pl.'s Response ¶ 92. GW granted Ball leave from March 19, 2015 to June 10, 2015, when Ball's FMLA leave was exhausted. Id. ¶¶ 92-93. GW later extended Ball's leave through June 23, 2015 under the DCFMLA. Id. ¶ 94.

On June 23, 2015, Ball returned to work. Id. ¶¶ 94, 96. His physician cleared him of all restrictions but recommended that he attend between two to three physical therapy appointments per week for his first few weeks back on the job. Id. ¶¶ 94-95. Although Ball did not have any annual or sick leave available, GW let him take unpaid leave for a few hours on June 23 and again on June 25 and June 26. Id. ¶¶ 99-100. In early July, Ball began regular physical therapyappointments on Mondays and Wednesdays. Id. ¶¶ 101-02. On July 7, 2015, Ball requested "intermittent" medical leave under the FMLA and DCFMLA to accommodate his physical therapy schedule. Id. ¶ 105. GW denied Ball's request under the FMLA because he had exhausted his FMLA leave, but it granted his request under the DCFMLA. Id. ¶ 106. Later, on August 7, 2015, Ball requested continuous leave under the DCFMLA. Id. ¶ 203. By that time, however, GW had suspended Ball pending an investigation into potential workplace misconduct, as discussed below. Id.

Ultimately, GW denied Ball's final request for DCFMLA leave. Id. ¶ 204. GW insists that it did so because Ball "was on an unpaid suspension, was not scheduled to work, and thus had no need for leave," but Ball maintains that he "still had a medical need for the leave" and that GW really denied his request to strip him of "job protection." Id. Six days after Ball's final leave request, GW terminated him on August 13, 2015. Id. ¶ 205. GW informed Ball that the termination was based on GW's conclusions that he had "falsified his work assignment logs, regularly clocked in and out from a cell phone in violation of University policy, and engaged in a pattern of disregarding work rules." Id. (internal quotation marks omitted). Ball agrees that "those were the reasons proffered by GW" but maintains that GW in fact terminated him because of his disability, and as retaliation for his requests for medical leave. Id.; Pl.'s Opp'n at 17, Dkt. 29.

B. GW's Investigation of Ball's Potential Workplace Misconduct

GW's disciplinary policy provides that GW may terminate employees either as the last step in a progressive discipline process "or immediately if the employee's conduct, in GW's judgment, warrants immediate termination." Pl.'s Response ¶ 21. When GW suspects an employee of misconduct, the employee's supervisor will typically conduct an initial review. Id. ¶ 28. If that review suggests a need for disciplinary action, the supervisor then seeks "reviewand advice" from the HR representative responsible for the employee's work unit. Id. "If, in the HR representative's judgment, the suspected infraction is serious," the representative may recommend that the supervisor suspend the employee pending an investigation by the HR representative. Id. ¶ 29. If the results of the HR investigation warrant termination, the HR representative will recommend termination to the employee's "division head," who then decides whether to terminate the employee. Id. ¶ 30.

GW's disciplinary policy lists "dishonesty, falsification of records, stealing, and sleeping on the job as infractions that may result in immediate termination." Id. ¶ 22. GW's plumbers must also comply with the facilities department's "Work Rules," designed to keep staff accountable for their work, time, and whereabouts. Id. ¶ 23. The work rules prohibit employees from, among other things, "loafing" during work hours, entering certain areas in University residence halls, working outside of their assigned work locations without supervisor approval, and falsifying University records. Id. ¶ 26. They also require employees to "take reasonable directions" from their supervisors, and they warn that the failure to do so may result in termination. Id. ¶ 27 (internal quotation marks omitted). Finally, the work rules require employees to "punch in or call in" from particular locations designated by a supervisor "so that supervisors can verify that employees have actually reported to work when the employees say they have." Id. ¶ 24 (internal quotation marks omitted). GW contends that its plumbers are specifically required to clock in from a landline located on campus, but Ball disputes that this policy existed and maintains that he was never instructed to clock in from a landline. Id. ¶ 25.

During Ball's employment, he reported to plumbing supervisor Thomas Wells, who reported to the interim director of the facilities department, Harold Speed. Id. ¶ 44. Claude Owens and Marion Flythe served as the facilities department's HR representatives. Id. ¶ 45.

Shortly after Ball returned to work on June 23, 2015, he was investigated for potential workplace misconduct. To understand that investigation, it is first helpful to know a few things about GW's technology and procedures.

First, GW issues each of its employees a "GWorld card" that allows the employee to enter secure University buildings by swiping the card in a card reader at the building's entrance. Id. ¶¶ 31-33. All GW buildings relevant to this suit are secured with GWorld card readers that record every card swipe, along with the cardholder's unique "Patron ID." Id. ¶¶ 32-33, 35. In addition, each building has a second "GWorld card swipe point inside the entrance that is intended to prevent piggybacking by requiring visitors to swipe their GWorld card twice when entering the building." Id. ¶ 36. GW contends that its employees are specifically instructed not to let others follow them into University buildings or to lend their GWorld cards to others, but Ball maintains that "[p]iggybacking was the custom at GW" and that "there was no enforced official policy against" it. Id. ¶ 34.

Second, GW uses a CCTV video surveillance system to monitor certain buildings. Id. ¶¶ 39-42. The system records footage temporarily to a hard...