Williams v. Abm Parking Servs. Inc.

296 F.Supp.3d 779

Kevin WILLIAMS, Plaintiff,

v.ABM PARKING SERVICES INC., et al., Defendants.

Case No. 1:16cv1259

United States District Court, E.D. Virginia, Alexandria Division.

Filed October 31, 2017

Sharon Fast Gustafson, Sharon Fast Gustafson Attorney at Law, PLC, Arlington, VA, for Plaintiff.

Edward Lee Isler, Micah Ephram Ticatch, Isler Dare PC, Vienna, VA, for Defendants.

MEMORANDUM OPINION

T. S. Ellis, III, United States District Judge

At issue on cross-motions for summary judgment in this employment discrimination case are the following questions:

i. Whether for purposes of the Family Medical Leave Act (the "FMLA") defendants ABM Parking and Five Star are an integrated employer and whether ABM and Five Star are successors-in-interest to their predecessor contractor, Standard Parking;

ii. Whether shuttle bus driving is an "essential function" of the shuttle bus supervisor position within the meaning of the Americans with Disabilities Act ("ADA");

iii. Whether the plaintiff could perform the other "essential functions" of the supervisor position with a reasonable accommodation;

iv. Whether ABM and Five Star violated the ADA by failing to engage in the requisite interactive process of finding a reasonable accommodation;

v. Whether plaintiff has established a prima facie case on his ADA disparate impact claim; and

vi. Whether for purposes of plaintiff's FMLA retaliation claim, plaintiff can establish that defendants had knowledge of plaintiff's prior FMLA leave.

Because there are disputed issues of material fact with respect to certain of these questions, the cross-motions for summary judgment must be denied.

I.

Plaintiff, Kevin Williams, worked at Ronald Reagan National Airport ("Reagan National Airport") in dispatcher and supervisor roles for approximately 15 years. Defendant Five Star is an LLC with two members: ABM Parking ("ABM") and U Street Parking, Inc. From 2010 to 2015, Five Star held a contract to provide parking services at Reagan National Airport. In 2015, Five Star received a contract to provide shuttle bus services at Reagan National Airport.

In 2010, plaintiff was hired by Standard Parking ("SP") to serve as a night-shift shuttle bus supervisor and dispatcher. In this role, plaintiff was responsible for coordinating bus schedules, monitoring bus drivers to ensure that they were driving their routes in a timely manner, and otherwise managing the operations of the shuttle bus drivers. During plaintiff's 15 years of employment as a shuttle bus supervisor, plaintiff only drove shuttle buses two times.

In April 2014, plaintiff suffered a stroke that left him disabled and forced him to take leave. He returned to work in June 2014 and was able to perform his job satisfactorily until December 2014, when he suffered a second stroke. Following the second stroke, plaintiff attempted to return to his job in December 2014, but was unsuccessful as he had not fully recovered from his second stroke. Accordingly, he took medical leave from February 22, 2015 to May 19, 2015.

In 2015, defendants prepared a bid to take over the shuttle bus contract from SP. As part of their bid, defendants proposed cutting the number of shuttle bus drivers from 75 to 69 and shuttle bus supervisors from nine to seven. Defendants won the contract in August 2015, almost three months after plaintiff had returned to work as a shuttle bus supervisor with SP. At this time, defendants informed SP's employees that they were required to reapply for positions with defendants.

Plaintiff applied for a shuttle bus supervisor position with defendants in August 2015. After returning to work in May 2015, plaintiff had worked four days a week in the shuttle bus supervisor position and had been allowed to work as a shuttle bus supervisor despite no longer holding a Commercial Driver's License ("CDL") or a Department of Transportation card ("DOT card") that certified he was cleared to drive the shuttle buses. During this period (May–August 2015), plaintiff functioned satisfactorily as a shuttle bus supervisor without driving a shuttle bus.

On August 31, 2015, Plaintiff went to defendants' office to check on the status of his application to work as a shuttle bus supervisor. Defendants' Human Resources Director, Nancy Bryce, asked plaintiff if he could present a CDL or DOT card. When plaintiff responded that he no longer held a CDL or DOT card, Bryce told plaintiff that he was not eligible for the shuttle bus supervisor position. Plaintiff protested and defendants' General Manager, Henok Tsehaye, then had a conversation with plaintiff. After that meeting, plaintiff was not rehired by defendants for the shuttle bus supervisor position.

Plaintiff then filed this action and now, following completion of discovery, he seeks summary judgment on four issues: (i) whether defendants ABM Parking and Five Star are an integrated employer, (ii) whether ABM and Five Star are successors-in-interest to their predecessor contractor, SP, (iii) whether shuttle bus driving is an "essential function" of the shuttle bus supervisor position, and (iv) whether ABM and Five Star failed to engage in the statutorily required interactive process to identify a reasonable accommodation for plaintiff.

Defendants have also filed for summary judgment on certain issues: (i) whether shuttle bus driving is an "essential function" of the shuttle bus supervisor position, (ii) whether the plaintiff could perform the other "essential functions" of the supervisor position with a reasonable accommodation, (iii) whether plaintiff has made out a prima facie case on his disparate impact claim under the ADA, and (iv) whether plaintiff can establish that Five Star had knowledge of plaintiff's prior FMLA leave.

II.

Two issues—(i) the status of defendants ABM Parking and Five Star as "integrated employers," and (ii) ABM and Five Star's status as successors-in-interest under the FMLA to SP, the predecessor contractor—are easily disposed of as they are either moot or irrelevant and hence summary judgment is not appropriate on either of these issues.

Plaintiff's motion with respect to ABM and Five Star's status as integrated employers is rendered moot by the parties' stipulation to this fact. Joint Stip. ¶ 6 ("Plaintiff has claimed ... that ABM Parking was an integrated employer with Five Star. For the purposes of this litigation only, ABM Parking and ABM Aviation agree not to contest that claim."). Because defendants stipulated to this fact and agreed not to contest the stipulation, plaintiff's motion for summary judgment on this issue is moot and must therefore be denied.

Plaintiff's second motion seeking summary judgment on the status of defendants as successors-in-interest fails as it is unnecessary for plaintiff to show that defendants are successors-in-interest to SP in order to recover on his FMLA claim. Because the FMLA prohibits retaliation against a "prospective employee for having exercised ... FMLA rights[,]" 42 U.S.C. § 2615(a), plaintiff's retaliation claim can proceed against defendants without the necessity of proving that defendants are successors-in-interest to SP. In other words, an employer need not have employed an individual to retaliate against him for taking protected medical leave. Because defendants' status as successors-in-interest to SP is not material to plaintiff's FMLA retaliation claim, summary judgment must be denied.

III.

Common to four of plaintiff's ADA claims—(i) failure to engage in the statutorily required interactive process to reach a reasonable accommodation, (ii) failure to make a reasonable accommodation, (iii) discriminatory failure to rehire, and (iv) intentional discrimination through use of job qualifications—is the question whether plaintiff is a "qualified individual" within the meaning of the ADA. According to the ADA, a "qualified individual" is a person "who, with or without reasonable accommodation , can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111 (emphasis added). There is no dispute that the plaintiff cannot drive shuttle buses because plaintiff no longer holds a CDL or DOT card. Nonetheless, the parties disagree on two questions: (i) whether shuttle bus driving is an "essential function" of the shuttle bus supervisor position, and (ii) whether a "reasonable accommodation" would allow plaintiff to perform the other essential functions of the shuttle bus supervisor position.

The first genuine dispute of material fact is whether driving a shuttle bus, which requires a CDL and DOT card, is an essential job function of the shuttle bus supervisor position. A job function is "essential" within the meaning of the ADA when "the reason the position exists is to perform the function, when there are not enough employees available to perform the function, or when the function is so specialized that someone is hired specifically because of his or her expertise in performing that function." 29 C.F.R. § 1630.2(n)(2).¹ Evidence of a function's "essential" nature includes whether it is listed in the advertised job description, whether the employer deems the function essential, the amount of time spent on the job performing the function, and the consequences of not requiring the employee to perform the function. 42 U.S.C. § 12111(8) ; 29 C.F.R. § 1630.2(n)(3). The employer's assertion concerning which functions are essential to the job is entitled to consideration,² but is not, by itself, dispositive; record evidence describing how employees actually perform their jobs can create an issue of fact as to whether a job function is "essential" under the ADA. See Jacobs v. N.C. Administrative Office of the Crts. , 780 F.3d 562, 579–80 (4th Cir. 2015) (relevant evidence creating a dispute of fact can include "the amount of time spent on the job performing the function, the consequences of not requiring the incumbent to perform the function, and the work experience of people who hold the same or similar job.") (...