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Davis v. George Washington University

United States District Court, D. Columbia.

March 20, 2014

ANTHONY K. DAVIS, Plaintiff,
v.
THE GEORGE WASHINGTON UNIVERSITY and ARAMARK FACILITY SERVICES, LLC, Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Re Document No.: 14,15,16.

For ANTHONY K. DAVIS, Plaintiff: David A. Branch, LEAD ATTORNEY, LAW OFFICE OF DAVID BRANCH, Washington, DC.

For GEORGE WASHINGTON UNIVERSITY, Defendant: William Patrick Flanagan, LEAD ATTORNEY, HOGAN LOVELLS, McLean, VA.

For ARAMARK FACILITY SERVICES, LLC, Defendant: Anne E. Martinez, William J. Delany, LEAD ATTORNEYS, PRO HAC VICE, MORGAN LEWIS & BOCKIUS, LLP, Philadelphia, PA; Kaiser H. Chowdhry, LEAD ATTORNEY, MORGAN, LEWIS & BOCKUS LLP, Washington, DC.

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MEMORANDUM OPINION

RUDOLPH CONTRERAS, United States District Judge.

Granting Defendants' Motions for Summary Judgment as to All Counts Except for the Hostile Work Environment Claim Under the ADA.

I. INTRODUCTION

Plaintiff, Anthony Davis, was employed as a service worker/housekeeper by Defendant, George Washington University from March 8, 2008 to December 13, 2010. Plaintiff was diagnosed with depression, bipolar disorder, and substance abuse. He was terminated by the University on December 13, 2010. Plaintiff now files suit against George Washington University on three counts: (1) failure to provide medical leave, and retaliation, in violation of the Family Medical Leave Act (" FMLA" ), 29 U.S.C. § 2601, et seq., (2) failure to provide medical leave in violation of the D.C. Family Medical Leave Act (" DCFMLA" ), D.C. Code § 32-503 (2001), and (3) discriminatory discharge, disparate treatment, hostile work environment on the basis of Plaintiff's disability, in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 , et seq. Plaintiff also files suit against Aramark Facilities Services, LLC (" Aramark" ) for Tortious Interference with Employment/Contractual Relations. The Defendants have moved for summary judgment on all counts. As explained more fully below, the Court concludes that the Defendants' motions for summary judgment should be granted.

II. FACTUAL BACKGROUND

A. GW and its Relationship with Aramark

George Washington University (hereinafter " GW" or " the University" ) is a private academic institution established in 1821, with its main campus in the District of Columbia. The University has an agreement with Aramark where Aramark provides housekeeping and facilities maintenance services to the University. Decl. Suzanne Williams-Valentine¶ 6, Def.'s Mot. Summ. J. Ex. 3, July 15, 2013, ECF No. 15. Aramark handles the day-to-day supervision of GW's housekeeping service workers. Id. GW manages the service workers' payroll and the administration of their employment benefits. Id.

B. Mr. Davis's Position with GW

From March 8, 2008 until his termination on December 13, 2010, Mr. Davis was employed by GW as a service worker/housekeeper on the night shift in the Housekeeping Services Department. Decl. Williams-Valentine ¶ 5. He was a member of the Services Employees International Union, Local 32BJ (" Union" ). Decl. Williams-Valentine ¶ 5.

Housekeeping Services is part of the Facilities Management Unit within the University's Facilities Services division. Id. In 2010, Mr. Davis reported directly to John Eshun (" Mr. Eshun" ), then-Director of Facilities Management, who worked for Aramark. Id. at ¶ 7. Mr. Eshun, in turn, reported to on-site supervisor James Schrote, the Executive Director of Facilities Services and a GW employee. Id.

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C. The Attendance Rules Applicable to Mr. Davis's Position

In his role as a housekeeper, Mr. Davis performed a number of traditional custodial duties, including mopping rooms, stripping and refinishing floors, washing windows and doors, operating buffers and vacuum cleaners, cleaning bathrooms, and polishing furniture. Service Worker Job Description, Def.'s Mot. Summ. J. Ex. 4. The University maintains that Mr. Davis worked as a part of a team of housekeepers, and so when an employee is unable to report to work, other employees' schedules have to be adjusted. Decl. Williams-Valentine at ¶ 8. This can cause essential work to be delayed or not performed, or may require overtime to be paid. Id.

Mr. Davis is governed by the rules set forth in the Department's Work Rules (" Work Rules" ), the Employee Handbook, and the Collective Bargaining Agreement (" CBA" ). Id. at ¶ 9. The University maintains that Mr. Davis received these documents during his employment, and that he knew their requirements. Id. Mr. Davis asserts that he believed that the rules in GW's Employee Handbook and the Work Rules did not apply to him because he was a union employee --instead he believed that only the rules in the CBA applied to him, and nothing else. Pl.'s Decl. ¶ 33, Pl.'s Opp'n Attach. 2, Aug. 15, 2013, ECF No. 18 . Under the Work Rules, " [a]n employee is expected to be at work on time and on a regular basis." Work Rules, Policy 1, Def.'s Mot. Summ. J. Ex. 5. " Excessive tardiness or absenteeism will not be tolerated," and a violation can subject the employee to disciplinary action. With respect to absences for sickness, the Work Rules state that employees are expected to " call in 2 hours prior to the beginning of their regular working hours" and receive permission to be absent from their supervisor. Id. Policy 31.b.

The Employee Handbook provides that when an emergency illness prevents an employee from reporting to work, he must notify his supervisor " as soon as possible," and for " frequent unplanned absences due to illness," the supervisor may require medical documentation. Employee Handbook § 10.1.2, Def's Mot. Summ. J. Ex. 1. An employee who fails to provide such documentation may be considered Absent Without Approved Leave (" AWOL" ), and three AWOLs " can result in disciplinary action up to and including termination." Id.

The CBA states that, to avoid AWOL status, an employee must " promptly provide[ ] documentation or other medical evidence that establishes to the Employer's satisfaction that the employee was unable to report to work due to illness." CBA § 9.7, Def.'s Mot. Summ. J. Ex. 2. An employee who has " [t]hree absences without approved leave (AWOL)" is deemed to have engaged in conduct of a serious nature. Id. § 20.2(12). Conduct of a " serious nature" may result in discharge without advance warning. Id. § 20.1.

D. Mr. Davis's August 24, 2009 Termination

Mr. Davis was terminated from his position by GW on August 24, 2009. Decl. Williams-Valentine¶ 11. The University maintains that Mr. Davis was terminated for multiple absences from work without timely requesting leave, or without providing medical documentation to explain his absences. 2008 Notices of Absences, Def.'s Mot. Summ. J. Ex.6; Termination Letter (Aug. 24, 2009), Def.'s Mot. Summ. J. Ex. 7. Mr. Davis maintains that he was improperly marked as AWOL on numerous occasions prior to his August 24, 2009 termination. See generally Pl.'s Opp'n.

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Following his termination, Mr. Davis and the University entered into a Last Chance Agreement (" LCA" ), which reinstated Mr. Davis and treated the time between his August discharge and February 3, 2010 as an unpaid suspension. Decl. Valentine-Williams ¶ 11; LCA ¶ 1, Def.'s Mot. Summ. J. Ex. 8. The LCA required Mr. Davis " to meet normal performance expectations and to comply with the employment standards applicable to other employees in his position." Id. at ¶ 4. It also provided that " if Mr. Davis is absent from work without the permission of his immediate supervisor on any occasion between February 3, 2010 and February 3, 2011, the University shall be entitled to discharge him immediately." Id. at ¶ 3 (emphasis added).

As a part of the LCA, the Union waived its right to grieve another discharge, other than to question " whether or not the immediate supervisor gave Mr. Davis permission to be absent." Id. As part of the agreement, Mr. Davis executed a Release, in which he waived all claims against GW and its agents related to the circumstances of the 2009 discharge pre-dating the Release's execution. Release, Def.'s Mot. Summ. J. Ex. 9.

E. Mr. Davis's Illness, and his Excused Sick Leave and FMLA Leave

Mr. Davis suffers from a variety of disorders, including depression, bipolar disorder, and substance abuse. Pl.'s Decl. ¶ ¶ 5-6, 14; Pl.'s Opp'n Exs. A-G. In November 2008, Mr. Davis disclosed to the University that he had a " Mental/Emotional" disability, which he identified as " depression." Voluntary Self- Identification Form, Nov. 1, 2008, Def.'s Mot. Summ. J. Ex. 22; Request for Accommodation form, Nov. 3, 2008, Def.'s Mot. Summ J. Ex. 23. Mr. Davis further disclosed that he was being treated with medication and psychotherapy related to his condition. Doctor's Documentation, April 7, 2008, Pl.'s Opp'n Ex. A. On May 20, 2008, Mr. Davis was hospitalized when he became dizzy and fainted, and was diagnosed with vertigo in connection with his depression medication. Discharge Documentation, May 20, 2008, Pl.'s Opp'n Ex. B. Plaintiff asserts that he provided these hospitalization records to his then-supervisor, Lance Kendall. Pl.'s Decl. ¶ 7.

In June 2009, Mr. Davis requested and was granted four days of FMLA leave for in-patient treatment relating to his substance abuse and psychological disorders. FMLA Certification, June 22, 2009, Def.'s Mot. Summ. J. Ex. 25.

Following his February 2010 reinstatement, Mr. Davis was granted FMLA leave or was excused from his absence on the following occasions:

o From July 11, 2010 to July 14, 2010, Mr. Davis was hospitalized in connection to his cocaine abuse and bipolar disorder. Discharge Documentation, July 14, 2010, Pl.'s Opp'nEx. G. Mr. Davis was not marked AWOL on these days.
o From August 8, 2010 to August 9, 2010, Mr. Davis was absent from work for an unknown reason. Leave Request Form, Pl.'s Opp'n, Ex. I. Mr. Davis was granted two days of sick leave for these absences.
o From August 11, 2010 to August 16, 2010, Mr. Davis was hospitalized for alcohol and cocaine abuse. Discharge Summary, Aug. 16, 2010, Pl.'s Opp'n Ex. J. Mr. Davis was not marked AWOL on these dates.
o On August 2, 2010, Mr. Davis requested and was granted FMLA leave from September 2 - 9, 2010, for inpatient treatment. FMLA Leave Request, Pl.'s Opp'n Ex. N; Patient

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Discharge, Pl.'s Opp'n Ex. P; File Closing Checklist, Pl's Opp'n Ex. O.

F. The Events Leading up To Mr. Davis's Termination on December 13, 2010

Mr. Davis was terminated on December 13, 2010, after he was marked as AWOL on eight occasions in 2010: July 7, July 22, November 2, November 10, November 14, December 1, December 8, and December 9. AWOL Notices, Def.'s Mot. Summ. J. Exs. 15-20. Mr. Davis contests each of these AWOLs, arguing that he either (1) properly requested and was authorized for leave on those dates, or (2) was not authorized for leave but should have been granted FMLA or ADA leave as part of his illness.

Plaintiff was documented as AWOL on July 7, 2010. AWOL Letter, Def.'s Mot. Summ. J. Ex. 13. Mr. Davis did not arrive at work on that date. Defendant claims that Mr. Davis did not contact his supervisor, Mr. Eshun, to notify the supervisor of his absence, nor did he answer or return any of his supervisor's phone calls. Test. of John Eshun at 83-86, Tr. of Hr'g before Administrative Judge Steven Wellner, Def's Mot. Summ. J. Ex. 14, July 15, 2013, ECF No. 15. Plaintiff later told Mr. Eshun that he had to " see a physician for personal reasons" but failed to provide a doctor's note when requested to do so. Id. at 86. Plaintiff asserts that he had a seven minute conversation with Mr. Eshun on July 6, 2010, informing Mr. Eshun that he could not work the following day due to his illness. Pl.'s Decl. at ¶ 21. Mr. Davis's phone records confirm that he conversed with a number, which he identifies as Mr. Eshun's number, for seven minutes on July 6, 2010. Pl's Opp'n Ex. T at 16. Mr. Davis neither disputes nor confirms Mr. Eshun's request for a doctor's note, nor Defendant's claim that no doctor's note was ever provided.

Plaintiff was next marked AWOL on July 22, 2010. AWOL Letter, Def.'s Mot. Summ. J. Ex. 15. On that date, Defendant asserts that Mr. Davis called his supervisor, notifying him that he would be a couple of hours late due to a " tenant/landlord meeting." Test.John Eshun, at 93. Mr. Eshun approved this delayed arrival, and was expecting Mr. Davis to show up for his shift at approximately 12:30 AM. Id. Mr. Davis did not report at that time, and did not respond to Mr. Eshun's " 12, 14" calls. Id. Mr. Eshun asserts that Mr. Davis's offered explanation after the fact was that " his phone was locked up, he couldn't find his keys." Id. at 99. Plaintiff does not dispute that he was authorized to arrive to his shift two hours late due to a landlord/tenant meeting. Davis Decl. ¶ 22. Plaintiff adds, however, that after speaking with Mr. Eshun, he " became dizzy and fainted and was hospitalized." Id. Further, Mr. Davis asserts that he did not have his phone with him at the hospital and thus informed Mr. Eshun the following day about his hospitalization. Id. Mr. Davis claims that he provided Mr. Eshun with copies of his medical records from this date. Id. The Court notes that these medical records are not in evidence.

Plaintiff was next marked as AWOL on November 2, 2010. AWOL Letter, Def.'s Mot. Summ. J. Ex. 16. Defendant claims that Plaintiff was absent on this day and did not call or notify his supervisor. Def's Mem. Supp. Mot. Summ. J. at 8. Plaintiff claims that on November 2, 2010, he spoke with Mr. Eshun at 2:12 p.m. and 8:27 p.m. to inform him that he could not attend work due to his illness. Davis Decl. ¶ 24. The Court notes that Mr. Davis did receive and make calls at this time, but that the calls were made to two different numbers. Pl.'s Opp'n Ex. T at 18.

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Plaintiff was next marked as AWOL on November 10, 2010. AWOL Letter, Def.'s Mot. Summ. J. Ex. 17. Defendant claims that Mr. Davis called around 10:00 p.m., a half-hour before his shift began, to request the night off. Test. John Eshun, at 101. Mr. Eshun says that he denied Plaintiff's request for the night off, and Plaintiff responded that he would be at work that night. Id. at 102. Mr. Davis did not arrive at work that night. In his declaration, Plaintiff claims that he called Mr. Eshun at 8:04 p.m. that night to inform him that he would be unable to work due to his condition. Davis Decl. ¶ 25. Mr. Davis's phone records confirm that a call was placed to a number at 8:04 p.m., although this number is again different from every other number identified by Mr. Davis as Mr. Eshun's number. Pl.'s Opp'n Ex. T at 18.

Plaintiff's testimony at an Administrative hearing in front of Judge Wellner contradicts Plaintiff's declaration. At the hearing, Plaintiff testified that he did not work on November 10, 2010 because he had a black-out, Test. of Anthony Davis, Def's Reply Ex. 1 at 164-65, and that he called his supervisor at 3:00 in the morning to let him know what had happened. Id. at 165.

Plaintiff was next marked as AWOL on November 14, 2010. AWOL Letter, Def.'s Mot. Summ. J. Ex. 18. Defendant asserts that Mr. Davis did not request time off for November 14, 2010 and did not call or notify his supervisor of his absence. Test. John Eshun at 107. When Mr. Davis failed to appear for his shift, Mr. Eshun says that he called Mr. Davis, but was unable to reach him. Id. Mr. Eshun claims that Defendant's proffered explanation for his absence was that there was something wrong with his phone. Id. at 108.

Plaintiff disputes this explanation, asserting instead that he had a doctor's appointment during his shift, which began at 10:30 p.m. Davis Decl. ¶ 26. Mr. Davis claims that in early November, he informed Mr. Eshun of a doctor's appointment on November 14, 2010, and that Mr. Eshun verbally approved his leave. Davis Decl. ¶ 26. Mr. Davis has included a physician's record of an appointment, which is dated for November 15, 2010 at 3:33 p.m. Pl's Opp'n Ex. Q. Again, Plaintiff's explanation in his declaration is not consistent with his testimony in the administrative hearing. There, Plaintiff testified that his condition had made him forgetful, and as a result he had locked his keys and cell phone in a locker, and was thus unable to get to work. Test. of Anthony Davis, Def's ReplyEx. 1 at 164.

Plaintiff was next marked AWOL on December 1, 2010. AWOL Letter, Def.'s Mot. Summ. J. Ex. 20. Mr. Davis was scheduled to report for his shift at 10:30 p.m. Defendant asserts that when Mr. Davis failed to report at the scheduled time, Mr. Eshun called Mr. Davis several times and left several messages. Def's Mot. Summ. J. Ex. 20. Defendant then asserts that Mr. Davis called Mr. Eshun at 3:12 a.m. to tell Mr. Eshun that he had overslept.

Plaintiff does not dispute that he overslept on that date, but instead asserts that he did so as a result of the medication he was taking. See Letter from Anthony Davis to Suzanne Valentine, Def.'s Mot. Summ. J. Ex. 21; Davis Decl. ¶ 27. According to his letter to Ms. Valentine, Mr. Davis had been experiencing insomnia as a result of a change in medication relating to his depression. Thus, Mr. Davis decided to take sleeping pills that he had been prescribed from a separate and previous treatment for insomnia. Id. The Court notes that the drug Mr. Davis references

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in his letter, Seroquel, is in fact not used to treat insomnia; rather it is used to treat bipolar disorder. See http://www.seroquelxr.com/. This medication knocked Mr. Davis out, who woke up groggy at 3:00 a.m., at which time he called Mr. Eshun. Mr. Davis then began to experience side effects from the drug, and went to the emergency room where he was treated for priapism. Id. ; George Washington Hospital Discharge Instruction, Def's Mot. Summ. J. Ex. 21 at 5. The parties agree that these hospital records were presented to Ms. Valentine on December 7, 2010, along with a letter Mr. Davis wrote explaining his absence.

Mr. Davis was finally marked AWOL on December 8, 2010 and December 9, 2010. AWOL Letter, Def.'s Mot. Summ. J. Ex. 19. Plaintiff asserts that he notified Mr. Eshun that the extreme cold weather enhances his illness and the side-effects related to his medication. Davis Decl.¶ 28. He further states that he had asked Mr. Eshun on multiple occasions to provide him a heavy winter coat, which is generally issued as part of an employee's uniform, and without which Mr. Davis would not be able to work. Id. As Mr. Davis explained in his deposition, " [t]he extreme cold had done something to me that morning . . . extreme cold . . . messes with the medication. Had I been able to put my hood on my head, I might have felt better. Had I even had a coat, I might have been able to feel better." Dep. Anthony Davis at 50, Def's Mot. Summ. J. Ex. 10.

Mr. Davis further explains that he " had been waiting a whole year for a coat and some overalls." Test. Anthony Davis at152, Def.'s Mot. Summ., J. Ex. 14. He states that he informed both Mr. Eshun and Ms. Valentine that he would not be at work for two days because he had not received his winter coat. Davis Decl. ¶ 28. In his declaration, Mr. Davis maintains that he did not come into work on December 8, 2010 and December 9, 2010 because he did not have a winter coat, and that his illness prevented him from working without one.

This declaration is inconsistent with Mr. Davis's testimony at the administrative hearing, where he testified that he did not come to work on December 8, 2010 because: " I was tired of [Mr. Eshun] misleading me about this uniform (the winter coat)....[a]nd I wanted him to know that I was serious about getting a new uniform." Test. Anthony Davis, 162-63, Def.'s Mot. Summ., J. Ex. 14. Yet Mr. Eshun testified at the same hearing that a new, heavier coat was given to Mr. Davis. Test. John Eshun at 177, Def.'s Mot. Summ. J. Ex. 14. Mr. Eshun testified that " [i]t was a new coat. It was given for [Mr. Davis] to keep." Id. This coat was in Mr. Davis's possession until it was redeemed upon his termination on December 13, 2010. Id. Mr. Davis too concedes that he had received this heavier winter coat, Test. Anthony Davis at 154, but was still unsatisfied because he wanted a coat with his name on it. Test. Anthony Davis at 138. And Mr. Davis feared that once he was given a non-uniform coat, Mr. Eshun would never order a customized coat. Id at 154. As Mr. Davis stated, Mr. Eshun is " the type that once he gets you something like that . . . he has no obligation to get me my coat." Id.

Mr. Davis also concedes that he never obtained authorization from either Mr. Eshun or Ms. Valentine to miss work on December 8th and 9th. When asked whether Ms. Valentine ever responded to Mr. Davis's request for two days leave, Mr. Davis responded " [n]o she didn't, although I left her my phone number on the message." Dep. Anthony Davis at 56, Def.'s Reply. Ex.2. Mr. Davis similarly concedes that he never received permission from

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Mr. Eshun for the absence. Id. According to Mr. Davis, on December 7, 2010 he said to Mr. Eshun, " I am going to Ms. Valentine to let her know that you have still not ordered my uniform and I am not feeling well and that -- that I will be taking the next couple of days off." Id. When asked what Mr. Eshun said in response, Mr. Davis stated: " [w]ell, it was 7:00. I didn't wait for his response. I just walked out the door after that." Id.

III. LEGAL STANDARD

A. Summary Judgment Standard


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