Rogers v. City of Greensboro ABC Bd.

1

CURTIS ROGERS, Plaintiff, v. CITY OF GREENSBORO ABC BOARD, Defendant.

No. 1:23-CV-621

United States District Court, M.D. North Carolina

July 24, 2024

MEMORANDUM OPINION AND ORDER

Catherine C. Eagles, Chief District Judge.

After being fired from his job, Curtis Rogers filed this lawsuit against his former employer, the City of Greensboro ABC Board, alleging violations of the Americans with Disabilities Act and the Family and Medical Leave Act. The Board moves for summary judgment. There are genuine disputes of material fact about his ADA disability discrimination, FMLA interference and FMLA retaliation claims, and the Board's motion for summary judgment as to those claims will be denied. But Mr Rogers has not presented evidence sufficient to support an inference that he requested any form of ADA accommodation, so the Board's motion for summary judgment on the ADA failure to accommodate and retaliation claims will be granted.

I. Procedural Background

After Mr. Rogers filed a lawsuit against the Board in July 2023, Doc. 1, the Board moved for judgment on the pleadings. Doc. 15. The Court denied the motion, Doc. 25, and all five of Mr. Rogers' claims against the Board proceeded: disability discrimination, failure to accommodate, and retaliation claims under the ADA, Doc. 1 at ¶¶ 25-35, and interference and retaliation claims under the FMLA. Id. at ¶¶ 36-41. Discovery has concluded, Doc. 12, and the Board now moves for summary judgment. Doc. 28.

II. Facts

Many of the facts are undisputed. To the extent they are not, the evidence is viewed in the light most favorable to the non-moving party, Mr. Rogers.

After experiencing significant pain in his foot, Doc. 30-1 at p. 1 ¶ 4, Mr. Rogers sought medical care on July 28, 2021. Id. at p. 6. A nurse practitioner examined Mr. Rogers' foot and diagnosed him with plantar fasciitis. Id. at p. 7. She gave Mr. Rogers two documents: a letter stating that Mr. Rogers “may return to work on 07/30/2021” but that he should have “[n]o prolonged standing for the next 4 days,” id. at p. 6, and an aftervisit summary stating that Mr. Rogers was seen for plantar fasciitis and should return for a follow-up appointment in about one week. Id. at p. 7.

On the evening of July 28, 2021, Mr. Rogers informed his supervisor, Jason Milliken, by a text message and a phone call about the plantar fasciitis diagnosis and of his request to take leave on July 29 and 30, 2021. Doc. 28-1 at 2; Doc. 28-7 at 4; Doc. 30-1 at p. 2 ¶ 8. During their phone call, Mr. Rogers told Mr. Milliken that he could not put weight on his foot for four days and that he would bring a letter from his medical provider when he returned to work on August 2, 2021. Doc. 28-7 at 4; Doc. 30-1 at p. 2 ¶ 8. Mr. Milliken approved the leave request. Doc. 28-1 at 2.

Mr. Rogers returned to work on August 2, 2021. Doc. 30-1 at p. 2 at ¶ 9. He brought Mr. Milliken his medical provider's letter and after-visit summary. Id. at p. 2 ¶ 10; Doc. 28-2 at ¶ 8.^[1] Mr. Milliken asked Mr. Rogers why he did not come to work on July 30, 2021, and Mr. Rogers explained that because he could not put weight on his foot, he could not complete his job duties, which required standing and walking. Doc. 30-1 at p. 2 ¶¶ 11-12. Mr. Milliken told Mr. Rogers that if he could not be present on “truck days,” a busy shift when employees unload trucks, then he did not need him, and that he would talk to the Board's CEO. Id. at p. 2 ¶ 13; Doc. 28-7 at 4; Doc. 28-6 at ¶ 5.

Three days later, the Board terminated Mr. Rogers' employment. Doc. 28-4 at 4. In its termination letter, the Board stated that Mr. Rogers “failed to comply” with work performance, personal hygiene, and attendance standards. Id.

Before his termination, Mr. Rogers worked for the Board for more than five years, id. at 6, and during that period, he received “constructive advice,” including in January 2020, for performing work too slowly, id. at 8, and in March 2021, for not abiding by the dress code. Id. at 7. In December 2020, the Board placed Mr. Rogers on a 30-day probation for safety and health policy violations. Id. at 5. At some point, the Board gave Mr. Rogers a raise. Doc. 6 at p. 3 ¶ 20.

After his initial medical appointment on July 28, 2021, Mr. Rogers did not have any follow-up appointments with a medical provider about his plantar fasciitis condition. Doc. 28-7 at 10-11; Doc. 30-1 p. 3 at ¶ 17. Mr. Rogers attested that he did not go for a follow-up appointment because he lost his health insurance after the Board terminated his employment. Doc. 30-1 at p. 3 ¶ 17.

After his employment with the Board ended, Mr. Rogers' planter fasciitis worsened, limiting the amount of time he can walk or stand. Id. at pp. 3-4 ¶ 18. It has continued to affect his ability to work in jobs requiring standing and walking. Doc. 28-7 at 9-10. After his discharge by the Board, Mr. Rogers worked for Golden State Foods Corp., but he left that position after four months “because he could not keep up with the physical requirements of the work . . . due to his plantar fasciitis” and the new job at Murrows Transfer Inc. “was described to him as [requiring] less walking and lifting, and not a touch freight job.” Id. Mr. Rogers left the job at Murrows Transfer Inc. after seven months to take a position in logistics because it is “completely sedentary.” Id. at 10.

III. Discussion

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In analyzing a summary judgment motion, courts “construe all facts and reasonable inferences in the light most favorable to the nonmoving party.” Bandy v. City of Salem, 59 F.4th 705, 709 (4th Cir. 2023).

A. ADA Disability Discrimination Claim

To prove disability discrimination, a plaintiff must show that he was (i) disabled or regarded as disabled, (ii) discharged, (iii) fulfilling his employer's legitimate expectations when he was discharged, and that (iv) the circumstances of his discharge raise a reasonable inference of unlawful discrimination. Cowgill v. First Data Techs., Inc., 41 F.4th 370, 379 (4th Cir. 2022); 42 U.S.C. § 12102(1) (stating that a person is disabled under the ADA if he is “regarded as having” an impairment “that substantially limits one or more major life activities”). The evidence, when viewed in the light most favorable to Mr. Rogers, creates disputed questions of material fact that require a trial.

First, it is undisputed that the Board discharged Mr. Rogers from employment. Doc. 28-4 at 4; Doc. 30-1 at p. 3 ¶ 14. The Board provided Mr. Rogers a letter informing him of his employment termination effective August 5, 2021. Doc. 28-4 at 4.

Second, Mr. Rogers' testimony, if credited by the jury, is sufficient to support a finding that he is disabled and that the Board regarded him as disabled. A person is disabled under the ADA if he has “a physical or mental impairment that substantially limits one or more major life activities” or is “regarded as having such an impairment.” § 12102(1). “The term substantially limits shall be construed broadly in favor of expansive coverage, and that term is not meant to be a demanding standard.” Thomas v. City of Annapolis, 851 Fed.Appx. 341, 348 (4th Cir. 2021) (cleaned up and quoting 29 C.F.R. § 1630.2(j)(1)(i)); see also Israelitt v. Enter. Servs. LLC, 78 F.4th 647, 654 (4th Cir. 2023). “Major life activities” include standing and walking. 42 U.S.C. § 12102(2)(A).

Here, Mr. Rogers has testified that after experiencing significant pain in his foot, Doc. 30-1 at p. 1 ¶ 4, he sought care from a medical professional who diagnosed him with plantar fasciitis in July 2021, id. at pp. 6-7; that his plantar fasciitis condition has continued to worsen, preventing him from walking and standing for prolonged periods of time, id. at pp. 3-4 ¶ 18; and that because of his worsening condition and inability to walk and stand for prolonged periods, he was forced to stop working in delivery, freight, or warehouse jobs, id., and take work that is “completely sedentary.” Doc. 28-7 at 9-10. Taken together, this testimony supports a finding that he is substantially limited in standing and walking and thus is disabled under the ADA.

The Board contends that Mr. Rogers cannot prove that his plantar fasciitis constitutes a disability under the ADA because he has provided no evidence of a followup medical appointment or treatment. Doc. 29 at 12-13. Mr. Rogers acknowledges that he did not seek further medical care after his first medical appointment on July 28, 2021. See Doc. 30 at 8; Doc 30-1 at p. 3 ¶ 17.^[2] But such medical evidence is not necessary to prove a disability within the meaning of the ADA. Gallimore v. Newman Mach. Co., 301 F.Supp.2d 431, 443-44 (M.D. N.C. 2004).^[3] The Board also contends that Mr. Rogers does not have a disability because his plantar fasciitis does not substantially limit a major life activity. Doc. 29 at 11-12 (citing Israelitt, 78 F.4th at 654; Tarokh v. Wal-Mart Stores E., LP, No. 21-CV-2719, 2023 WL 10449106, at *5-6 (D.S.C. Nov. 13, 2023) (Mag. J., recommendation), adopted, 2024 WL 1342743 (D.S.C. Mar. 29, 2024)). But those cases are easily distinguishable. In Israelitt, the court held that the plaintiff's arthritic toe joint did not substantially limit the plaintiff's mobility because the evidence showed he “walked at length” for work and pleasure. 78 F.4th at 655. Similarly, in Tarokh, the judge held that the plaintiff's knee injury did not constitute a disability...