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Marks v. Washington Wholesale Liquor Co. LLC

United States District Court, District of Columbia

May 26, 2017



          JAMES E. BOASBERG United States District Judge

         Plaintiff Malcolm Marks asserts that his employer - Washington Wholesale Liquor Company - violated the Americans with Disabilities Act in two separate ways when it delayed fixing the motorized hand truck that he used to make deliveries. More specifically, he contends that Defendant's stalling both denied him a reasonable accommodation for his right-arm paralysis and served as retaliation for his earlier reporting of safety issues at two delivery locations. Defendant forcefully rejoins that the brief delay was appropriate and unrelated to any safety reporting. Now, on the parties' Cross-Motions for Summary Judgment, the Court agrees that the evidence cannot support either of Plaintiff's claims and will thus grant Defendant's Motion.

         I. Background

         Because the Court grants Defendant summary judgment, it sets out the underlying facts in the light most favorable to Plaintiff. In so doing, though, it only credits facts that Marks has supported with evidence in the record, relying in particular on his deposition testimony. The Court offers him this generous reading despite the fact that Marks utterly failed to comply with Local Civil Rule 7(h), which requires that “[e]ach motion for summary judgment shall be accompanied by a statement of material facts as to which the moving party contends there is no genuine issue” and that any opposition to such a motion “be accompanied by a separate concise statement of genuine issues setting forth all material facts as to which it is contended there exists a genuine issue necessary to be litigated.” Marks never filed such a statement with either his Motion or his Opposition.

         The Court could penalize this violation by “assum[ing] that facts identified by [WWL] in its statement of material facts are admitted.” Id.; Murray v. Amalgamated Transit Union, 183 F.Supp.3d 6, 15-16 (D.D.C. 2016) (explaining use of “may” in prior version of LCvR 7(h) implies discretion). Indeed, as this Circuit has recognized, enforcing this rule assists a district court's ability “to maintain docket control and to decide motions for summary judgment efficiently and effectively.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). To ensure that its decision is based on the merits, the Court nevertheless largely chooses not to resolve such facts against Marks here.

         Having chosen to plot this lenient course, it will nevertheless not parrot any unsupported allegations or misrepresentations that are found solely in his briefing - most notably, the several instances where he self-servingly misrepresents key dates - nor will it ignore those of WWL's facts that Marks has failed to refute with any record citations. Although not ultimately relevant to liability, the Court also notes some blatant misrepresentations of what certain evidence on damages actually says. For example, Marks claims that he underwent two shoulder surgeries because of WWL's denial of his reasonable accommodation in 2014. See ECF No. 35 (Marks Reply) at 24. The evidence he cites in support of this allegation, however - both in his briefing and at the hearing - clearly and unambiguously states that he suffered these injuries after a slip and fall at work on January 6, 2015, while he was using his motorized hand truck. See ECF No. 32 (Motion), Exhs. 38-39 (describing how Marks “started to experience left shoulder pain” after he slipped and fell in the snow on January 6, 2015) (emphasis added).

         With these parameters set, the Court first takes up the underlying facts of this dispute, breaking this discussion up into sections about the origins of Marks's disability, his acquisition and use of a motorized hand truck while working for Defendant, his later reporting of missing handrails at two delivery locations, and the hand truck's eventual breakdown and repair in 2014. A final procedural section then details the history of this litigation.

         A. Factual

         1. Disability (2006)

         In 2006, well before he went to work for Defendant, Marks went through a life-altering event when he was shot multiple times in his face, right arm, hip, and buttocks. See Mot., Exh. 7 (Occupational Therapy Worksite Assessment) at 3. The resulting injuries forced him to receive a prosthetic chin and to endure a colon resection. Id. As particularly pertinent here, they also left him with paralysis in his right arm. Id.

         2. Hiring and Motorized-Hand-Truck Acquisition (2010-2012)

         Four years later, Marks applied for a position as a distribution “helper” at WWL. See Mot., Exh. 2 (Application) at 1. Helpers assist WWL drivers with the loading, off-loading, and delivery of heavy liquor boxes to customers. See Mot. at 5-6. Despite the obvious physical demands of such a job, Marks indicated on his application that he could do this work without any accommodations for his disability. See Application at 2 (checking box indicating no request for accommodation). When the Company first interviewed him, moreover, Marks reaffirmed that he would not need any special assistance despite his right-arm paralysis. See Mot., Exh. 1 (Deposition of Malcolm Marks 1) at 226:12-227:5. Marks's size and strength likely helped mitigate his injury. See Mot., Exh. 38 (Independent Medical Evaluation) at 3 (describing Marks as 6'6'' and 270 lbs.).

         His prediction rang true for his first 14 months at WWL. In short, Marks successfully performed his work from August 2010 onward without any special equipment. See Marks Dep. 1 at 269:3-270:9. He simply used the same type of manual hand truck that Defendant provided to all its helpers without apparent issue. Id.; see also ECF No. 33 (Cross-Motion), Exh. 2 (Deposition of Malcolm Marks 3) at 110:2-10 (setting start date).

         In mid-2011, though, Plaintiff began consulting with the Maryland State Department of Education's Division of Rehabilitation Services about acquiring special equipment to help him be more efficient. See Marks Dep. 3 at 143:7-144:2. Although he had been a DORS client since 2009, Marks first mentioned this to a WWL Human Resources representative - Kisha Day - in May 2011, telling her specifically that he was investigating getting a motorized hand truck through the program. See ECF No. 33 (Defendant's Statement of Material Facts) (SOF), ¶ 11; see also Marks Dep. 3 at 144:17-144:20. Day responded that she would need supportive medical paperwork detailing why a disability accommodation would be needed before approving the use of such specialized equipment. See Marks Dep. 3 at 144:17-145:8; Mot., Exh. 10 (Email from Kisha Day to Malcolm Marks on Nov. 1, 2011) (relating discussion from May and request for supportive paperwork). Marks, in turn, promised to get her the necessary forms soon, but she heard nothing more from him for approximately five months. See SOF, ¶ 12.

         On October 20, 2011, Marks finally wrote to Day again to discuss the motorized hand truck. See Mot., Exh. 7 (Letter from Marks to Kisha Day on Oct. 20, 2011); Marks Dep. 1 at 282:17-22 (acknowledging no information to suggest DORS contacted the Company prior); Nov. 1, 2011, Email from Day at 1 (indicating this was first she heard of the issue since May); Mot., Exh. 9 (Email from Kisha Day to Jason Savage on Oct. 20, 2011). He specifically requested a “reasonable accommodation” in the form of “a secure space to lock up and charge a Motorized Hand Truck” in his letter. See Oct. 20, 2011, Marks Letter at 2; Marks Dep. 3 at 129:17-21, 144:17-145:8. In addition, he attached a DORS occupational-therapy assessment from June 2011, indicating that he would benefit from using this equipment. See Oct. 20, 2011, Marks Letter at 3. Around the same time, too, DORS reached out to Day to confirm that it would purchase this hand truck “to assist him in performing his job duties more efficiently.” Mot., Exh. 8 (Email from Matthew Jackson to Kisha Day on Oct. 20, 2011) at 1. It also affirmed that Marks would be responsible for the hand truck, but asked that the Company provide a place for it to “be locked up and plugged in when not in use.” Id. at 2.

         As Marks was out on leave in October, Day took roughly 11 days to respond, eventually letting him know at the start of November that his request for an accommodation was under review. See Nov. 1, 2011, Email from Day at 1. She further asked that Marks meet with her and her supervisor, Jason Savage, upon his return to work to move this process forward. Id. In particular, Day wanted to speak with him about the need for the accommodations he was requesting. Id. She got no response from Marks. See SOF, ¶ 22; ECF No. 33-55 (Declaration of Keisha Day), ¶ 5; ECF No. 33-56 (Declaration of Jason Savage), ¶ 11.

         A month later, on December 6, Marks picked up his new hand truck from DORS and, in February 2012, showed up with it upon his return to work. See SOF, ¶ 23. He never reached out to anyone at WWL to finish an ADA-related interactive process for his accommodation request in the interim, nor did he provide any further supportive documentation about the scope of his limitations. Id., ¶ 22. His supervisors at WWL nevertheless gave him a locked space and electrical access for the handcart. Id., ¶ 24; Marks Dep. 3 at 195:16-196:14, 200:10-21.

         Not long after, Marks discovered that he also needed to charge the hand truck while he was out doing his deliveries, not just at the end of the day, as he had initially requested. See Marks Dep. 3 at 201:4-10. He thus informed Michael Howe, his immediate supervisor, that the cigarette lighter in his truck was broken and needed to be fixed. Id. at 201:11-13. While it took some time for a third-party shop mechanic, referred to as “Kenny, ” to get the requisite part, the truck's charger was up and running again on May 18, 2012, and Marks had just one half-day where he was forced to use a manual hand truck after the battery on his motorized one died. See Marks Dep. 3 at 208:18-209:12, 221:3-17; see also Mot., Exh. 30 (2011 Grievance Reporting Form) at 2 (noting half-day without hand truck); SOF, ¶ 33. 3. Safety Reporting (Summer/Fall of 2013)

         More than a year went by before, in June 2013, the central issue related to Marks's retaliation claim popped up between him and WWL. While out on a delivery at the Wonderland Ballroom, Plaintiff found himself in a tough situation. See Marks Dep. 3 at 236-43, 250:4-13. Steep stairs that he needed to climb down to a storage area had no handrail. Id. Marks, as a result, became fearful that he might slip and fall. Id. at 238:2-6, 241:7-14. He immediately spoke with his driver, who told him to call their secondary supervisor - Karl Fisher - to lodge a complaint about the missing handrail. Id. at 238:5-11. Marks did so and was instructed by Fisher to leave the liquor upstairs, rather than risk going down the stairs. Id. at 237:1-10, 241:22-7.

         After that, Marks returned to make other deliveries at Wonderland, but there is no indication that he was ever asked by WWL to go down those stairs again. Id. at 258:8-259:22.

         In fact, he understood that he had been instructed by Fisher not to descend them even if the customer asked that he do so. Id. at 259:20-260:6. Marks, moreover, testified that he worried that he would get in trouble if he attempted such a maneuver. Id. Defendant also did not waver on its instruction that he not do so, even after Wonderland began rejecting deliveries as a result. Id. at 261. Instead, it continued to try to push Wonderland to install the required handrail, conducting two onsite visits to this end. See Mot., Exh. 6 (Deposition of Jason Savage) at 35:6-15, 39:12-40:9; ECF No. 33-5 (Deposition of Michael Howe) at 42:3-44:14; Cross-Mot., Exh. 32 (Aug. 30, 2013, Letter from Karl Fisher).

         Despite these efforts by WWL, Wonderland ultimately refused to install the handrail and instead acquiesced to upstairs deliveries. See Aug. 30, 2013, Fisher Letter (describing site visits). Unsatisfied with this resolution, on August 15, 2013, Marks filed a formal complaint against Wonderland - not WWL - with the Occupational Safety and Health Administration in the name of his driver, Reggie Cromer. See Marks Dep. 3 at 264:7-16; 273:7-19. He also told Fisher several times after this that he had filed this complaint, and Fisher consistently told him that it was then “between you and OSHA.” Id. at 264:17-265:22. In another instance, Fisher told him that “he really didn't care” about Marks's lodging of the complaint. Id. at 265:18-22.

         Two weeks later, OSHA contacted Wonderland, and the client immediately responded by telling WWL's sales team that it would no longer be doing business with the Company. See Savage Dep. at 50:8-51:21; Mot., Exh. 35 (Email from John Hild on Aug. 29, 2013) at 1. That same day, on August 29, 2013, the WWL operations director, John Hild, wrote an email to Human Resources, asking what “option and discipline [choices]” they had with regard to Marks's filing of the OSHA complaint. See Aug. 29, 2013, Hild Email; Savage Dep. at 44:6-19. Human Resources commendably responded that no action could be taken against such an employee for reporting a safety issue. See Savage Dep. at 44:6-19. Although no one at the Company subsequently mentioned the matter to Marks, he suspected that people at WWL might be upset about his decision to file the OSHA complaint, given that Wonderland ultimately terminated its account. See Marks Dep. 3 at 270:7-20.

         From September through November 2013, Marks was briefly out on leave for an unrelated issue stemming from a car accident. See Mot. at 11, 27; Marks Dep. 1 at 124:13-125:18; SOF, ¶ 18. After his return, he had another missing-handrail concern with a different customer, AND. See Marks Dep. 3 at 278:2-13; Savage Dep. at 53:12-54:7. He again complained directly to its onsite manager, who, unlike the Wonderland manager, told him that he should just leave the product upstairs. See Marks Dep. 3 at 278:14-22. Marks did so, but alerted his own supervisor to the problem at the end of his work day around November 26. Id. at 279:4-7; Mot., Exh. 32 (Email from James Lundstrom on November 27, 2013). He further indicated that he would call OSHA again if a handrail did not get installed. See Marks Dep. 3 at 279:11-17. This time, however, Marks never filed any formal complaint with OSHA or even a grievance with WWL about the issue. Id. at 280:10-12. 4. Hand-Truck Breakdown & Repair After November 2013, almost four quiet months passed until Marks's motorized hand truck broke down on March 18, 2014. See Marks Dep. 3 at 44:1-16 (confirming March 2014); ECF No. 33-3 (Deposition of Malcolm Marks 2) at 46:10-16; see also Marks Dep. 3 at 161:15-18 (confirming date); 325:15-19 (confirming date); Mot., Exh. 12 (Email from Michael Howe on May 13, 2014). How the Company responded to this event forms the crux of his reasonable-accommodation claim.

         Marks immediately brought this issue to the attention of one of his supervisors, Jimmy Lundstrom, and asked whether he could have a service technician come onsite to fix it. See Mot., Exh. 22 (2014 Grievance Reporting Form) at 2. Lundstrom promised to ask Howe to approve a repair. See Marks. Dep. 1 at 319:20-320:19; Mot., Exh. 3 (Deposition of James Lundstrom) at 51:1-19. Howe, though, informed Lundstrom that the shop mechanic, Kenny, could not work on Marks's equipment because it did not belong to WWL. See SOF, ¶¶ 63-64; see also May 13, ...

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