Currently before the Court is Defendant’s motion for summary judgment.
I.Factual Background
This case arises out of Plaintiff Jeannette Stevens’s employment with Defendant Southern Nuclear Operating Company.
1. NRC Regulations
As a nuclear-power-plant operator, Defendant is required to follow numerous NRC regulations. Under these regulations, Defendant must implement a fitness-for-duty (“FFD”) program. 10 C.F.R. § 26.21. The FFD program must “[p]rovide reasonable assurance that individuals are not ... mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties .... ” 10 C.F.R. § 26.23(b). The program must “[p]rovide reasonable measures for the early detection of individuals who are not fit to perform the duties that require them- to be subject to the FFD program .” 10 C.F.R. § 26.23(c). Further, the regulations require Defendant to maintain a Behavioral Observation Plan, which is used to “detect behaviors that may indicate ... impairment from fatigue or any cause that, if left unattended, may constitute a risk to public health and safety or the common defense and security .... ” 10 C.F.R. § 26.33. “Individuals who are subject to [FFD programs] shall report any FFD concerns about other individuals to the personnel designated in the FFD policy.” Id. If an employee’s “fitness is questionable ... the licensee or other entity shall take immediate action to prevent the individual from performing the duties that require him or her to be subject to [the regulations].” 10 C.F.R. § 26.77.
2. Defendant’s FFD Policy
In accordance with NRC regulations, Defendant has implemented an FFD policy to ensure that its employees remain in compliance with those regulations. (Doc. 23-4 ¶ 7.) Under this policy, “individuals evidencing physical or mental impairment which may in any way adversely affect their ability to safely and competently perform their duties may be removed from duty” and referred for a determination of fitness (“DOF”)
3. Plaintiffs Employment
Plaintiff began working at Plant Vogtle as a nuclear security officer on January 5, 2009, and she is still employed in that position. As a nuclear security officer, Plaintiff is required to carry a weapon and is subject to the NRC regulations discussed above.
In April 2013, Plaintiffs 8-year-old son tragically drowned. Following his death, Plaintiff remained out of work for thirty days and sought counseling. Plaintiff returned to work in May 2013, at which time she reported to Defendant’s FFD Services Department. During this process, a resident nurse observed Plaintiff exhibiting aberrant behavior and, under Defendant’s FFD policy, notified the FFD Services Department. Subsequently, Defendant placed Plaintiff on may-not-work status pending Plaintiffs FFD evaluation. In early June 2013, Defendant put Plaintiff on paid administrative leave while a DOF was completed. Eventually, Plaintiffs personal physician and one of Defendant’s physicians determined that Plaintiff was not fit to return to work. In October 2013, Defendant’s physicians cleared Plaintiff to return to work as an unarmed security officer, and she returned in November 2013.
b. Plaintiffs January 2014 removal from work
In early January 2014, Defendant’s FFD Services Department received a report that Plaintiff became emotional after her 2013 performance review. Two witnesses, Rebeckah Barringer and James March, witnessed this behavior. According to Mr. March, Plaintiff was crying and physically shaking. In light of these reports, Defendant placed Plaintiff on may-not-work status and requested an FFD evaluation. One of Defendant’s physicians determined that Plaintiff was not fit to return to work as an armed security officer, and Plaintiff returned to work as an unarmed security officer in early February 2014. In May 2014, Plaintiff regained her position as an armed security officer.
c. Plaintiffs July 2014 removal from work
In July 2014, one of Plaintiffs coworkers reported that Plaintiff became emotional during one of her shifts. That same day, another employee reported that Plaintiff called him and informed him that she needed to leave work. During that shift, Plaintiff saw a child who reminded her of her son, which caused her to become upset. Because of this incident, Defendant once again placed Plaintiff on may-notwork status and required her to undergo another evaluation. Apparently, Plaintiff was cleared for work shortly after this incident, but the doctor who cleared her later determined that she was not fit for duty in September 2014. In April 2015, Plaintiff was cleared to return to work, and she returned in early May 2015.
d. Plaintiffs workplace concerns
In September 2012, Plaintiff filed a workplace concern, in which she alleged that two of her coworkers forwarded pictures from her cell phone without her permission. In response to Plaintiffs concern, Defendant conducted an investigation into the matter and terminated the two employees’ employment.
In August 2014, Plaintiff filed a second workplace concern, in which she alleged she was wrongfully denied a promotion, improperly removed from service in July 2014, and falsely accused of time-card theft. With respect to the time-card theft, in July 2014, Plaintiffs supervisor became suspicious that Plaintiff had improperly coded time. (Doc. 23-5 ¶ 12.) Accordingly, in August 2014, Defendant’s HR Business Consultant, Kevin Gillenwater, suggested that an investigation into the matter be opened. (Doc. 23-6 ¶ 6.) The investigation did not uncover any wrongdoing, and Plaintiff was not punished. (Doc. 23-5 ¶ 12.)
On September 18, 2014, Plaintiff filed a charge of discrimination with the EEOC. (Doc. 18 at 20.) In the charge, Plaintiff checked the box for disability discrimination and asserted that she was removed from her job because she was regarded as disabled. On December 29, 2014, Plaintiff initiated this action (doc. 1), and she filed an amended complaint on May 29, 2015 (doc. 18), which alleges that Defendant discriminated against her in violation of the Americans with Disabilities Act (“ADA”) when it removed her from work and that Defendant retaliated against her in violation of the ADA. Defendant has moved for summary judgment. (Doc. 28.)
III. Legal Standard
Summary judgment is appropriate only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Facts are “material” if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc.,
The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett,
If—and only if—the movant carries its initial burden, the non-movant may avoid summary judgment only by “demonstrating] that there is indeed a material issue of fact that precludes summary judgment.” Id When the non-movant bears the burden of proof at trial, the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant “must respond with evidence sufficient to withstand a directed verdict motion at trial on the material fact sought to be negated.” Fitzpatrick,
In this action, the Clerk of the Court gave Plaintiff notice of the motion for summary judgment and informed her of the summary-judgment rules, the right to file affidavits or other materials in opposition, and the consequences of default. (Doc. 24.) Therefore, the notice requirements of Griffith v. Wainwright,
IY. Discussion
Defendant moves for summary judgment on Plaintiffs discrimination and retaliation claims. The Court addresses these separately below.
1. ADA Discrimination
Under the ADA, it is unlawful to discriminate against a “qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). To prevail on a discrimination claim under the ADA, a plaintiff must first establish a pri-ma facie case of discrimination, which requires showing: (1) that she is disabled; (2) that she was a qualified individual; and (3) that she was discriminated against because of her disability. Lucas v. W.W. Grainger, Inc.,
Once a plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. Cleveland v. Home Shopping Network, Inc.,
a. Plaintiffs discrimination claim fails because she was not qualified to work as a nuclear security officer during the times she was removed from work.
A “qualified individual” is an individual who can perform the essential functions of the job, with or without reasonable accommodation. 42 U.S.C. § 12111(8). “[Cjonsideration shall be given to the employer’s judgment as to what functions of a job are essential.” Id. Written policies are considered evidence of essential job functions. See Lucas,
Moreover, “[t]he sensitive nature of the nuclear power industry and the extensive regulation of that industry by the NRC both suggest that the consideration given to the employer’s determinations in this area should be especially deferential.” Lute v. Dominion Nuclear Conn., Inc., 3:12-cv-01412,
Defendant argues that Plaintiff was not qualified to hold the position of nuclear security officer during the times she was removed from the position because she was not fit for duty. That is, Defendant maintains, being fit for duty under NRC regulations and Defendant’s internal policies is an essential function of the job. Accordingly, because Plaintiff was determined not fit to return to work during the relevant time periods, she could not perform the essential functions of the job. The Court agrees.
As noted above, employees subject to the relevant NRC regulations must be fit for duty, and NRC licensees are required to implement FFD programs. 10 C.F.R. § 26.21. And a licensee has a duty to immediately to remove an employee whose fitness is questionable. 10 C.F.R. § 26.77. In every instance, Plaintiff was removed from work after Defendant received reports of Plaintiff behaving aberrantly. In accordance with NRC regulations and its own policy, Defendant immediately removed her from work pending an FFD determination. And each time she was removed from work, Plaintiff was found not fit for duty, at least for some period of time. Because the Court finds that being fit for duty is an essential function of Plaintiffs job, she was not qualified under the ADA.
b. Even if Plaintiff could establish a prima facie case, her claim would fail because she has not produced any evidence of pretext.
Alternatively, Defendant argues that, even if Plaintiff could establish a prima facie case of discrimination under the ADA, she cannot rebut Defendant’s legitimate, nondiscriminatory reason for its actions: that she was not fit for duty under NRC regulations and its policy. See Smith v. United Parcel Serv., Inc., 104CV3812-WBH,
As for pretext, Plaintiffs argument is not entirely clear, but it appears that she takes issues with the facts surrounding her July 2014 removal and the doctors used to evaluate her. “A proffered legitimate, nondiscriminatory reason is not pretext for discrimination unless it is shown both that the reason was false and that discrimination was the real reason.” Lopez v. AT&T Corp.,
Regarding the facts surrounding her July 2014 removal, Plaintiff agrees that she became emotional at work, but she claims she did not cry at work.
Because Plaintiff has failed to establish that she was qualified for the position during the relevant time periods, and because she has not shown that Defendant’s reasons for removing her from work were pretext for discrimination, the Court GRANTS Defendant’s motion on this issue.
2. ADA Retaliation
Plaintiffs amended complaint alleges that Defendant retaliated against her for filing workplace concerns. First, Plaintiff argues that Defendant retaliated against her for reporting that her coworkers improperly forwarded pictures from her phone. Next, although it is not clear, Plaintiff seems to argue that Defendant retaliated against her for questioning her removal from work by conducting the time-card investigation. Defendant argues that summary judgment is proper on these claims because Plaintiff did not exhaust her administrative remedies and because they fail on the merits.
a. Plaintiffs claims fail because her EEOC charge did not include a retaliation claim.
Before a plaintiff may file a discrimination or retaliation lawsuit, she must exhaust her administrative remedies by filing a charge with the EEOC. Francois v. Miami Dade Cty.,
On the EEOC charge attached to Plaintiffs amended complaint, Plaintiff checked only the box for disability discrimination. (Doc. 10 at 18.) Below that, she wrote:
I. I began working for the above named employer on or about January 1, 2009, as a Nuclear Security Officer. On or about July 16, 2014,1 was placed on paid administrative leave. On July 22, 2014, I provided documentation that I could return to work without limitations.
*1381 II. No reason was given for placing me on paid leave.
III. I believe I am being regarded as having a disability, in violation of Title I of the Americans with Disabilities Act of 1990, as amended.
(Id.) Plaintiff did not check the box for retaliation or reference any facts alleging that she was retaliated against. Accordingly, Plaintiff failed to exhaust her administrative remedies, see Maxwell,
b. Plaintiffs retaliation claims also fail on the merits.
Under the ADA, employers are prohibited from discriminating “against any individual because such individual has opposed any act or practice made unlawful by [the ADA] .42 U.S.C. § 12203(a). To establish a prima facie case of retaliation, a plaintiff must show: (1) that she engaged in statutorily protected expression; (2) that she suffered an adverse employment action; and (3) that there was a causal link between the adverse action and the protected expression. Lucas v. W.W. Grainger, Inc.,
i. Plaintiffs claim based on her 2012 workplace concern fails because she did not engage in protected conduct.
As § 12203(a) specifically provides, an employer is prohibited from discriminating against an employee for opposing an act made unlawful by the ADA. See Todd v. McCahan,
ii. Plaintiffs claim based on the time-card investigation fails because she cannot establish a causal connection.
Plaintiff claims that she e-mailed her supervisor, Ms. Barringer, in late July 2014 to inquire about why she had been removed from work earlier that month.
“In order to satisfy the ‘causal link’ prong of a prima facie retaliation case, a plaintiff must, at minimum, generally establish that the defendant was actually aware of the protected expression at the time the defendant took the adverse employment action.” Raney v. Vinson Guard Serv., Inc.,
Because Plaintiff failed to exhaust her administrative remedies for her retaliation claims, and because her retaliation claims fail on the merits, the Court GRANTS Defendant’s motion on this issue.
Y. Conclusion
For the reasons explained above, the Court GRANTS Defendant’s motion for summary judgment (doc. 23). The Clerk shall terminate all motions and deadlines and CLOSE this case.
ORDER ENTERED at Augusta, Georgia this 30th day of August, 2016.
Notes
. Unless otherwise indicated, the facts contained in this Order are taken from Defendant's statement of undisputed material facts. (Doc. 23-2.) Plaintiff has failed to respond to these facts. And although Plaintiff is proceeding pro se in this matter, she is ‘‘not excused from the obligation to respond to a statement of material facts in the manner required by [Local Rule 56.1].” Mobley v. Chatham Cty., CV 408-221,
. A DOF is a process used to evaluate an individual who may be in violation of a licensee’s FFD program. (Doc. 23-4 ¶ 11.)
. In her response brief, Plaintiff seems to dispute whether she was emotional at all on the day in question. Plaintiff, however, may not create a factual dispute simply by contradicting her own deposition testimony with unsupported assertions in a court filing. See Lightsey v. Miles, CV 203-171,
. Among the numerous documents attached to Plaintiff’s response brief is one page of what looks like an EEOC intake questionnaire. (Doc. 27-1 at 197.) To the extent Plaintiff attempts to assert that this document shows that she did exhaust her administrative remedies, her argument falls short. First, the document does not indicate when Plaintiff completed it. In fact, Plaintiff's brief implies that she may have filled out the form after Defendant moved for summary judgment. (See Doc. 27 ¶ 280.) Additionally, intake questionnaires are not typically considered charges, which must be verified. See Wilkerson,
. The e-mails attached to Plaintiff’s amended complaint are dated July 29, 2014 (doc. 18 at 14), but Plaintiff claims she originally sent the e-mails on July 24, 2014 (see doc. 27-1 at 128).