Equal Emp't Opportunity Comm'n v. McLeod Health, Inc.

271 F.Supp.3d 813

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,

v.MCLEOD HEALTH, INC., Defendant.

Civil Action No.: 4:14–3615–BHH

United States District Court, D. South Carolina, Florence Division.

Signed September 21, 2017

Kara L. Haden, Rachael Suzanne Steenbergh, Stephanie Michelle Jones, US Equal Employment Opportunity Commission, Charlotte, NC, William Norman Nettles, Bill Nettles Law, Columbia, SC, for Plaintiff.

Michael Montgomery Shetterly, Ashley Prickett Cuttino, Ogletree Deakins Nash Smoak and Stewart (GREN), Greenville, SC, for Defendant.

OPINION AND ORDER

Bruce Howe Hendricks, United States District Judge

This action arises out of Cecilia Whitten's ("Whitten") termination with Defendant McLeod Health, Inc. ("Defendant" or "McLeod"). On September 11, 2014, Plaintiff Equal Employment Opportunity Commission ("Plaintiff" or "EEOC") filed this action under Title I of the Americans with Disabilities Act of 1990 ("ADA") and Title I of the Civil Rights Act of 1991, alleging that Defendant subjected Whitten to improper medical examinations and terminated her employment in violation of the ADA. In accordance with 28 U.S.C. § 636(b)(1) and Local Civil Rule 73.02 D.S.C., this matter was referred to United States Magistrate Thomas E. Rogers, III, for consideration of pretrial matters. Summary judgment was previously granted on Plaintiff's improper medical examination claim (see ECF No. 64 at 1–15), and the matter was remanded for consideration of Plaintiff's wrongful termination claim and any potential failure to accommodate claim (see ECF No. 81 at 3–4). The Magistrate Judge prepared a thorough Report and Recommendation ("Report"), which recommends that Defendant's motion for summary judgment be granted as to the remaining wrongful termination claim. (ECF No. 96.) Plaintiff filed timely objections to the Report, Defendant responded in turn, and Plaintiff filed a reply. (ECF Nos. 97, 99, 100.) For the reasons set forth herein, the Court adopts the Report and grants summary judgment in Defendant's favor.

BACKGROUND AND PROCEDURAL HISTORY

The Report sets forth in detail the relevant facts and standards of law and the Court incorporates them and summarizes below only in relevant part. On January 1, 2016, the Magistrate Judge entered a Report and Recommendation ("First Report") recommending that Defendant's motion for summary judgment be granted both as to Plaintiff's improper medical examination claim and as to Plaintiff's wrongful termination claim. (ECF No. 59.) The Court entered an Order adopting the First Report as to the improper medical examination claim, but remanding the wrongful termination claim to the Magistrate Judge for consideration of "this claim in light of Defendant's remaining arguments set forth in its motion for summary judgment." (ECF No. 64 at 19.) Defendant filed a motion for reconsideration arguing, inter alia , that the Court erred in finding that issues of fact remained as to the wrongful termination claim. (ECF No. 70.) The Court granted the motion for reconsideration in part, vacating the portion of its previous Order relating to Plaintiff's wrongful termination claim, directing further briefing thereupon, and remanding the case to the Magistrate Judge to address the merits of the claim, with particular attention to the role of the futile gesture doctrine, as well as whether a failure to accommodate claim exists and survives summary judgment. (ECF No. 81.) After the parties filed their supplemental briefs, the Magistrate Judge submitted his second Report and Recommendation on June 19, 2017. (ECF No. 96.) Plaintiff filed its objections to the second Report on July 3, 2017. (ECF No. 97.) Defendant filed a response to the objections on July 17, 2017. (ECF No. 99.) Plaintiff replied on July 27, 2017. (ECF No. 100.)

The Court has thoroughly reviewed the Report, all related briefing, the objections, all relevant responses and replies, and the applicable case law. Case law exists to support both sides of the issue regarding an employer's duty to affirmatively reassign an employee to a vacant position in contravention of the employer's facially neutral requirements that the employee apply for and compete for the position; however, none of the case law is controlling and the issue presents a circuit split. In truth, the theory and analysis pursued by Plaintiff regarding Defendant's allegedly unlawful failure to reassign Whitten has strayed far afield from the wrongful discharge claim actually pleaded in the complaint and has only tangential relevance to the resolution of Defendant's summary judgment motion. Ultimately, the Court finds that Whitten's own conduct during the parties' efforts to find an appropriate reassignment position dictated the result of that process, and the Court will enter judgment accordingly.¹

STANDARD OF REVIEW

The Magistrate Judge makes only a recommendation to this Court. The recommendation has no presumptive weight. The responsibility for making a final determination remains with this Court. Mathews v. Weber , 423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The Court is charged with making a de novo determination of any portions of the Report and Recommendation to which a specific objection is made. The Court may accept, reject, or modify, in whole or in part, the recommendation made by the Magistrate Judge or may recommit the matter to the Magistrate Judge with instructions. See 28 U.S.C. § 636(b)(1). The Court need not conduct a de novo review when a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson , 687 F.2d 44, 47 (4th Cir. 1982). In the absence of a timely filed, specific objection, the Magistrate Judge's conclusions are reviewed only for clear error. See Diamond v. Colonial Life & Accident Ins. Co. , 416 F.3d 310, 315 (4th Cir. 2005).

DISCUSSION

Plaintiff objects to the Report on two grounds, arguing the Magistrate Judge erred: (1) in the legal analysis of and conclusion as to whether the ADA's reasonable accommodation provision requires an employer to affirmatively reassign a disabled employee to a vacant position when the employee satisfies the position's basic qualification standards and expresses a desire for the position; and (2) in applying a flawed reassignment analysis to the facts of this case, resulting in a determination that would not be reached under application of the correct assignment standard. (ECF No. 97 at 1.)

The Court has considered the EEOC's objections de novo and finds them unpersuasive and insufficient to reject the recommendations of the Magistrate Judge. In his thorough thirty-one page Report, the Magistrate Judge detailed the factual background of this matter before engaging in a thoughtful and comprehensive analysis of the EEOC's claims. (See generally , ECF No. 96.) As an initial matter, it must be noted that the EEOC acknowledged, in its objections (ECF No. 60) to the First Report, in its supplemental brief (ECF No. 85), and in its instant objections (ECF No. 97) that it has not alleged a separate cause of action for failure to accommodate. Accordingly, the Magistrate Judge correctly determined that no independent failure to accommodate claim exists or survives summary judgment. (ECF No. 96 at 12.)

The EEOC's complaint contains two claims: (1) that Defendant subjected Whitten to illegal medical examinations in violation of the ADA; and (2) that Defendant placed Whitten on forced leave and discharged her on the basis of her disability in violation of the ADA. (ECF No. 1.) After discovery closed and Defendant filed its motion for summary judgment, and after the Magistrate Judge issued the First Report concluding inter alia that Whitten's failure to apply to any positions constituted a failure to engage in the interactive process, the EEOC introduced a new theory (see ECF No. 60 at 22–23, 25), now prevalent in its objections, that Defendant's failure to accommodate Whitten in the form of automatic reassignment to a vacant position should be viewed as evidence in support of the discriminatory discharge claim (see ECF No. 97 at 12).² Defendant views the shifting basis for Plaintiff's claims with skepticism, and for good reason. Defendant argues:

The EEOC, who never pled failure to accommodate, let alone failure to reassign, has now completely shifted its arguments in this case and is trying to backdoor their way into a claim and legal theory never contemplated at the outset. What began as an unlawful medical examination case has now, somehow, been converted into a failure to reassign case. While the EEOC seems to finally acknowledge that it never pled a failure to accommodate claim, let alone failure to reassign, it believes it is entitled to pursue a failure to reassign argument as if it had been pled. This is not a reassignment case. It should not be a reassignment case. This is a wrongful discharge case based on an alleged unlawful medical examination, leave, and subsequent discharge. The only reason the Magistrate court felt compelled to consider reassignments was in analyzing whether Whitten was a "qualified individual" under the ADA.

(ECF No. 99 at 4.) The EEOC never sought to amend the complaint to add a failure to accommodate claim and without such an amendment a new claim may not be raised. Wahi v. Charleston Area Med. Ctr., Inc. , 562 F.3d 599, 617 (4th Cir. 2009) ("We have previously held, along with the Fifth, Sixth, Seventh, and Eleventh Circuits, that a plaintiff may not raise new claims after discovery has begun without amending his complaint.") (citations omitted). In the absence of any failure to accommodate claim in the pleadings, the EEOC's current reliance on a failure to reassign theory is simply an attempt to move the goal posts, a shifting target grafted onto the wrongful discharge claim once the gravamen of Plaintiff's case (the improper medical examination claim and the portion...