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Ball v. George Washington University

United States District Court, District of Columbia

March 31, 2019

AARON BALL, Plaintiff,


          DABNEY L. FRIEDRICH United States District Judge

         The plaintiff, Aaron Ball, brings this action against his former employer, George Washington University, under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., the District of Columbia Human Rights Act (DCHRA), D.C. Code § 2-1401.01 et seq., and the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. § 2601 et seq. Before the Court is the defendant's Motion for Summary Judgment, Dkt. 28. For the reasons that follow, the Court will grant the motion.

         I. BACKGROUND

         A. Ball's Employment History and Requests for Medical and Disability Leave

         George Washington University (GW) employed Aaron Ball as a plumber from December 2008 until he was terminated on August 13, 2015. Pl.'s Response to GW's Statement of Material Facts (Pl.'s Response) ¶¶ 2, 205, Dkt. 29-1.[1]

         During Ball's employment, GW maintained several leave policies. Id. ¶¶ 6-7; 10-11. The FMLA gives eligible employees the right to take up “to twelve weeks of unpaid leave during any twelve-month period if a ‘serious health condition' prevents [them] from performing [their] job functions.” Hopkins v. Grant Thornton Int'l, 851 F.Supp.2d 146, 151-52 (D.D.C. 2012), aff'd sub nom. Hopkins v. Grant Thornton, LLP, 529 Fed.Appx. 1 (D.C. Cir. 2013). And the “DC counterpart” to the FMLA-called the “DCFMLA”-provides a similar right to take up to sixteen weeks of unpaid leave during any twenty-four month period. Thomas v. District of Columbia, 227 F.Supp.3d 88, 98 (D.D.C. 2016) (internal quotation marks omitted). GW allows its employees to take unpaid medical leave under both the FMLA and the DCFMLA. Pl.'s Response ¶ 9. If, after exhausting FMLA and DCFMLA leave, an employee is still unable to return to work, the employee may seek additional unpaid leave as an ADA or DCHRA accommodation. Id. ¶ 10.

         Between March 5, 2013 and June 9, 2014, Ball requested and was granted over twenty-seven weeks of leave under the FMLA and DCFMLA. Id. ¶¶ 78, 81.[2] Ball then requested and was granted an additional six months of medical leave from June 9, 2014 to December 19, 2014 as an ADA accommodation. Id. ¶ 83.

         On January 30, 2015, Ball again sought FMLA and DCFMLA leave, but GW denied his request because he had already exhausted his leave under both statutes. Id. ¶¶ 88-89. A few days later, on February 2, 2015, Ball requested leave again, this time as an ADA accommodation. Id. ¶ 90. GW granted Ball temporary leave from February 2, 2015 to March 11, 2015 so that GW and Ball could engage in the “interactive process” contemplated by the ADA. Id. ¶ 91; see also 29 C.F.R. § 1630.2(o)(3) (describing “an informal, interactive process” through which the employer and employee work together to identify a reasonable accommodation); Ward v. McDonald, 762 F.3d 24, 32 (D.C. Cir. 2014) (same). During Ball's leave, on February 27, 2015, interim facilities director Harold Speed sent a letter to an Equal Employment Opportunity official at GW stating that extending Ball's leave as requested would impose an “undue hardship” on the facilities department. See Pl.'s Opp'n Ex. 14 at Ball000397, Dkt. 29-16. The letter explained that GW's plumbing unit had already “been operating below capacity” for a year, with two other vacancies and another employee (besides Ball) on medical leave. Id. According to the letter, this shortage had already created a backlog of work orders that required available plumbers to work overtime to keep up with daily requests. Id.

         When Ball's leave and the interactive process ended on March 11, 2015, GW denied Ball's request to remain on medical leave on the ground that granting the accommodation would impose an undue hardship on GW's operations. Owens Decl. Ex. O., Dkt. 28-4. Eight days later, on March 19, 2015, Ball became eligible for and requested leave under the FMLA and DCFMLA. Pl.'s Response ¶ 92. GW granted Ball leave from March 19, 2015 to June 10, 2015, when Ball's FMLA leave was exhausted. Id. ¶¶ 92-93. GW later extended Ball's leave through June 23, 2015 under the DCFMLA. Id. ¶ 94.

         On June 23, 2015, Ball returned to work. Id. ¶¶ 94, 96. His physician cleared him of all restrictions but recommended that he attend between two to three physical therapy appointments per week for his first few weeks back on the job. Id. ¶¶ 94-95. Although Ball did not have any annual or sick leave available, GW let him take unpaid leave for a few hours on June 23 and again on June 25 and June 26. Id. ¶¶ 99-100. In early July, Ball began regular physical therapy appointments on Mondays and Wednesdays. Id. ¶¶ 101-02. On July 7, 2015, Ball requested “intermittent” medical leave under the FMLA and DCFMLA to accommodate his physical therapy schedule. Id. ¶ 105. GW denied Ball's request under the FMLA because he had exhausted his FMLA leave, but it granted his request under the DCFMLA. Id. ¶ 106. Later, on August 7, 2015, Ball requested continuous leave under the DCFMLA. Id. ¶ 203. By that time, however, GW had suspended Ball pending an investigation into potential workplace misconduct, as discussed below. Id.

         Ultimately, GW denied Ball's final request for DCFMLA leave. Id. ¶ 204. GW insists that it did so because Ball “was on an unpaid suspension, was not scheduled to work, and thus had no need for leave, ” but Ball maintains that he “still had a medical need for the leave” and that GW really denied his request to strip him of “job protection.” Id. Six days after Ball's final leave request, GW terminated him on August 13, 2015. Id. ¶ 205. GW informed Ball that the termination was based on GW's conclusions that he had “falsified his work assignment logs, regularly clocked in and out from a cell phone in violation of University policy, and engaged in a pattern of disregarding work rules.” Id. (internal quotation marks omitted). Ball agrees that “those were the reasons proffered by GW” but maintains that GW in fact terminated him because of his disability, and as retaliation for his requests for medical leave. Id.; Pl.'s Opp'n at 17, Dkt. 29.

         B. GW's Investigation of Ball's Potential Workplace Misconduct

         GW's disciplinary policy provides that GW may terminate employees either as the last step in a progressive discipline process “or immediately if the employee's conduct, in GW's judgment, warrants immediate termination.” Pl.'s Response ¶ 21. When GW suspects an employee of misconduct, the employee's supervisor will typically conduct an initial review. Id. ¶ 28. If that review suggests a need for disciplinary action, the supervisor then seeks “review and advice” from the HR representative responsible for the employee's work unit. Id. “If, in the HR representative's judgment, the suspected infraction is serious, ” the representative may recommend that the supervisor suspend the employee pending an investigation by the HR representative. Id. ¶ 29. If the results of the HR investigation warrant termination, the HR representative will recommend termination to the employee's “division head, ” who then decides whether to terminate the employee. Id. ¶ 30.

         GW's disciplinary policy lists “dishonesty, falsification of records, stealing, and sleeping on the job as infractions that may result in immediate termination.” Id. ¶ 22. GW's plumbers must also comply with the facilities department's “Work Rules, ” designed to keep staff accountable for their work, time, and whereabouts. Id. ¶ 23. The work rules prohibit employees from, among other things, “loafing” during work hours, entering certain areas in University residence halls, working outside of their assigned work locations without supervisor approval, and falsifying University records. Id. ¶ 26. They also require employees to “take reasonable directions” from their supervisors, and they warn that the failure to do so may result in termination. Id. ¶ 27 (internal quotation marks omitted). Finally, the work rules require employees to “punch in or call in” from particular locations designated by a supervisor “so that supervisors can verify that employees have actually reported to work when the employees say they have.” Id. ¶ 24 (internal quotation marks omitted). GW contends that its plumbers are specifically required to clock in from a landline located on campus, but Ball disputes that this policy existed and maintains that he was never instructed to clock in from a landline. Id. ¶ 25.

         During Ball's employment, he reported to plumbing supervisor Thomas Wells, who reported to the interim director of the facilities department, Harold Speed. Id. ¶ 44. Claude Owens and Marion Flythe served as the facilities department's HR representatives. Id. ¶ 45.

         Shortly after Ball returned to work on June 23, 2015, he was investigated for potential workplace misconduct. To understand that investigation, it is first helpful to know a few things about GW's technology and procedures.

         First, GW issues each of its employees a “GWorld card” that allows the employee to enter secure University buildings by swiping the card in a card reader at the building's entrance. Id. ¶¶ 31-33. All GW buildings relevant to this suit are secured with GWorld card readers that record every card swipe, along with the cardholder's unique “Patron ID.” Id. ¶¶ 32-33, 35. In addition, each building has a second “GWorld card swipe point inside the entrance that is intended to prevent piggybacking by requiring visitors to swipe their GWorld card twice when entering the building.” Id. ¶ 36. GW contends that its employees are specifically instructed not to let others follow them into University buildings or to lend their GWorld cards to others, but Ball maintains that “[p]iggybacking was the custom at GW” and that “there was no enforced official policy against” it. Id. ¶ 34.

         Second, GW uses a CCTV video surveillance system to monitor certain buildings. Id. ¶¶ 39-42. The system records footage temporarily to a hard drive. Id. ¶ 42. When the hard drive is full, new footage automatically overwrites old footage “on a ‘first-in, first-out' basis.” Id.

         Third, GW's plumbing unit uses a software program called “AiM” that enables customers to submit requests and supervisors to assign work orders. Id. ¶¶ 49-50. The system was designed in part to help supervisors “hold their staff accountable for their time” and to “identify employees who we[re] fudging timecards.” Id. ¶ 50 (alteration adopted and internal quotation marks omitted). In July 2015, plumbers accessed AiM using GW-issued iPods. Id. ¶ 51. Typically, the plumbing supervisor would send daily work assignments to each plumber's iPod, id. ¶ 55, and the plumbers would “view their assignments, record their completed tasks, and record the amount of time they spent on each task” using the AiM software, id. ¶ 56. To GW, it was imperative that all plumbers “accurately record[ed] their completed assignments and the amount of time they spent on each task” because the facilities department “bill[ed] the cost of all labor hours, materials, and equipment” to the division within GW that served as the “customer” for the project. Id. ¶ 58.

         When Ball returned to work in June 2015, he did not have an iPod. Id. ¶ 110; Pl.'s Statement of Material Facts in Dispute (Pl.'s Statement) ¶ 6, Dkt. 29-1. The reason remains in dispute. According to GW, Ball had forgotten his email username and password, and Wells told him he had to visit the IT desk at the library to get them reset before he could obtain an iPod. Pl.'s Response ¶¶ 110-11. GW also claims that Ball lied to Wells by claiming he had visited the library multiple times for assistance when he had not. Id. ¶¶ 113, 120. Ball, however, maintains that he was never told to visit the library and never claimed to have done so. Ball Decl. ¶¶ 8-9, Dkt. 29-5. Rather, he was told that the individual in charge of setting iPods was on vacation and that Wells would take care of getting Ball an iPod when the individual returned. Id. ¶ 10.

         Regardless of the reason, Ball's lack of an iPod meant Wells had to place paper copies of Ball's work assignment logs in Ball's mailbox each day. Pl.'s Response ¶ 112. Ball would then fill the logs out by hand and give them to a co-worker, Silene de Almeida, to input into AiM. Id. ¶ 115. After a few weeks of this process, de Almeida told Wells that Ball had been charging an inordinate amount of time to an expired work order for a single building named Lafayette Hall.

         Wells Tr. at 61:7-64:9, Dkt. 28-20.[3] After speaking with de Almeida, Wells began an initial review of Ball's work assignment logs to determine whether Ball had violated GW's policies or the facilities department's work rules. Pl.'s Response ¶ 117. In the course of his investigation, Wells reviewed video surveillance footage, GWorld card swipe records, daily assignment logs, physical key checkout records, and “written documentation provided by [Ball] directly.” GW Tr. Ex. 1 at Ball001303, Dkt. 28-9. When he finished, Wells submitted a memorandum to HR on July 27, 2015 summarizing his conclusions. Pl.'s Response ¶ 119. The memo stated that:

• Ball was told to visit the library to get his email password reset, but he claimed he could not do so because nobody was manning the IT desk. Wells considered this explanation a lie and an act of “insubordination” because there was “always someone at [the IT] desk during business hours.” GW Tr. Ex. 1 at Ball001302.
• Ball's GWorld swipe records and video surveillance footage showed that Ball spent significant time in a TV lounge in Guthridge Hall even though Ball had no work assignments in that building and “no reason to be there.” Id. Specifically, Ball entered Guthridge Hall ten times in five days and stayed there for approximately twenty-four hours. Id.[4]

         The work logs and GWorld card records on which Wells purported to rely are undisputed. They indicate that:

• Ball entered the Guthridge Hall basement fifty-five times between June 29, 2015 and July 30, 2015. Pl.'s Response ¶ 130.
• On at least eight days during that time period, Ball entered the Guthridge Hall basement before his shift ended and did not use his GWorld card to swipe into any other GW building for the rest of his shift. Id. ¶ 131.
• On July 2, 2015, Guthridge Hall was the only GW building Ball entered using his GWorld card, even though he had no work assignments in Guthridge Hall that day. Id. ¶ 132.
• On July 6, 2015, Ball recorded two hours of work in Munson Hall and two hours of work in Jacqueline Bouvier Kennedy Onassis Hall (JBKO). Id. ¶ 134. Ball used his GWorld card to enter Munson Hall only once, at 9:42 A.M., and swiped into Madison Hall, where Ball had no work assignments, nine minutes later. Id. ¶ 135. Ball never used his GWorld card to enter JBKO that day. Id. ¶ 136. He entered the Guthridge Hall basement at 11:44 A.M. and did not use his GWorld card to enter any other buildings between then and the end of his shift. Id. ¶ 138.
• On July 7, 2015, Ball recorded seven completed work orders in Lafayette Hall, Rice Hall, Munson Hall, and Madison Hall. Id. ¶ 139. Ball never used his GWorld card to enter Lafayette Hall, Munson Hall, or Madison Hall that day. Id. ΒΆ 140. However, he used his GWorld ...

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