United States District Court, District of Columbia
E. BOASBERG United States District Judge
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.
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
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.
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).
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.
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.
Hiring and Motorized-Hand-Truck Acquisition
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.).
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).
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.
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.
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), ¶
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.
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)
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.
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.
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).
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.
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.
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
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, ...