United States District Court, District of Columbia
L. FRIEDRICH United States District Judge
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.
Ball's Employment History and Requests for Medical and
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.
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.
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. 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.
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
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.
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.
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.
GW's Investigation of Ball's Potential Workplace
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.
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. ¶
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.
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.
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.
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.
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. ¶
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.
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
Tr. at 61:7-64:9, Dkt. 28-20. 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.
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. ¶ 140. However, he used his