The opinion of the court was delivered by: Richard D. Bennett United States District Judge
Plaintiff Equal Employment Opportunity Commission ("EEOC") brings this action for disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., on behalf of Michael Turner ("Mr. Turner") against his former employer, Defendant Greater Baltimore Medical Center, Inc. ("GBMC"). The EEOC moves for summary judgment on its claims that, since at least May 2006, GBMC has engaged in unlawful conduct under the ADA in four ways: first, by declaring Mr. Turner unable to work with or without a reasonable accommodation; second, by failing to accommodate Mr. Turner's physical limitations; third, by terminating Mr. Turner because of his disabilities; and fourth, by failing to rehire Mr. Turner in any capacity because of his record of disabilities. GBMC moves for summary judgment on the basis that the EEOC is judicially estopped from bringing this action because Mr. Turner's Social Security Disability Insurance ("SSDI") application, which states that Mr. Turner is disabled and unable to work, and Mr. Turner's continuing receipt of benefits based upon this application, contradict the EEOC's claim in this case that Mr. Turner is able to work without restrictions.
The parties' submissions have been reviewed and oral argument was presented to this Court at a hearing held on January 10, 2011. For the reasons that follow, Defendant GBMC's Motion for Summary Judgment (ECF No. 36) is GRANTED. This Court holds that the EEOC cannot establish that Mr. Turner is a qualified individual who can perform the essential functions of his job under the ADA because the EEOC has not sufficiently explained how Mr. Turner's statement in his SSDI application that he is unable to work and continuing receipt of benefits can be reconciled with Mr. Turner's later statements that he is able to work without reasonable accommodations. Accordingly, Plaintiff EEOC's Cross-Motion for Summary Judgment (ECF No. 42) is DENIED.
In 1984, Claimant Michael Turner began working at Defendant GBMC as a unit secretary. EEOC Summ. J. Mem. Ex. 11 at 13. From 1984 until 1990, Mr. Turner was a part-time nursing unit secretary. Id. In 1990, he became a full-time nursing unit secretary. Id. Before taking disability leave in 2005, Mr. Turner worked as a full-time unit secretary in the postpartum unit, working the day shift. Id. at 53. There is no dispute that as unit secretary Mr. Turner was responsible for, among other things, assisting patients, families, vendors and visitors with security badge access when they entered and left the postpartum unit, answering the phone and patient call lights, and retrieving and sending faxes. Id. Ex. 13.
On January 13, 2005, Mr. Turner became hospitalized for treatment of necrotizing fasciitis, which is commonly known as flesh-eating disease. Id. Ex. 11 at 26-27. He remained hospitalized for over five months, during which time he had multiple surgeries and completed intensive rehabilitation. Id. Though Mr. Turner was released from the hospital in July 2005, his physician, Dr. Nathan Rosenblum ("Dr. Rosenblum"), did not deem him able to return to work until November 15, 2005. Id. Ex. 9. On November 17, 2005, however, Mr. Turner had a stroke and was hospitalized for a second time. Id. He remained hospitalized for over a month, and was discharged from the hospital on December 27, 2005. Id.
Two days after Mr. Turner's discharge, on December 29, 2005, his mother, Margaret Turner ("Mrs. Turner"), applied for Social Security Disability Insurance benefits on behalf of her son, who was unable to complete the necessary forms because of the effects of his stroke. GBMC Summ. J. Mem. Exs. 2, 3. Mr. Turner's SSDI application states that he became "unable to work because of [his] disabling condition on January 15, 2005" and that he was still disabled at that time. Id. Ex. 2. Mr. Turner's SSDI application also obligates him to notify the Social Security Administration ("SSA") "if [his] medical condition improves so that [he] would be able to return to work, even though [he had] not yet returned to work." Id.
In conjunction with Mr. Turner's SSDI application, Mrs. Turner also completed a Disability Report on behalf of her son. Id. Ex. 4. In this report, Mrs. Turner represented that Mr. Turner's necrotizing fasciitis, diabetes and stroke limited his ability to work. Id. On January 9, 2006, Mr. Turner filled out and submitted a Function Report indicating that he had significant weakness on his left side, trouble ambulating and required the assistance of a walker. Id. Ex. 3. On January 22, 2006, the SSA determined that Mr. Turner was disabled and awarded him benefits retroactive to January 15, 2005, the date he was first hospitalized. Id. Ex. 6. Since that day, Mr. Turner has received monthly SSDI payments of $1,074. Id.; Turner Dep. at 190.
On or about January 15, 2005, Mr. Turner applied for and received the maximum twelve months of general leave of absence he was allowed pursuant to GBMC's leave policies. GBMC Summ. J. Mem. Ex. 9. This general leave included the twelve weeks of leave Mr. Turner was allowed to take under the Family Medical Leave Act ("FMLA"). Id. When Mr. Turner's maximum general leave expired, GBMC's Human Resources Department "stretched the rules" and granted him three extra months of general leave in recognition of his long tenure at GBMC. Id. Ex. 17 at 50-51. Thus, Mr. Turner remained employed by GBMC but on general leave from approximately January 15, 2005 until June 30, 2006. Id. at 32.
Under GBMC's general leave policies, an employee returning from leave is not guaranteed a position, but "will be considered for available vacancies for which he/she qualifies on release to return to work." GBMC Summ. J. Mem. Ex. 9 at 7. In January 2006, after Mr. Turner was released from his second stay at the hospital, Mr. Turner advised GBMC that he wanted to return to work as a unit secretary. Turner Dep. at 56. In accordance with GBMC's leave policy, Mr. Turner's personal physician, Dr. Rosenblum, filled out a Return to Duty/Medical Restriction form indicating that Mr. Turner could return to work part-time as a unit secretary as of March 6, 2006, though he would be restricted in walking and bending, and could not lift more than five pounds. Id. Ex. 12. Also in compliance with GBMC's policies, Mr. Turner scheduled a fitness for duty evaluation with a member of GBMC's Employee Health Department, Dr. Paul Valle ("Dr. Valle"). GBMC Summ. J. Mem. Ex. 9 at 6. After evaluating Mr. Turner on March 30, 2006, Dr. Valle determined that Mr. Turner could return to work, but should be limited to working four hours per day, three days a week in a low volume area with little multitasking. Id. Ex. 15 at 63, 89-90. Though Mr. Turner wanted to return to his previous position of unit secretary, Dr. Valle did not believe that Mr. Turner could complete the duties of his old position at that time because he was not medically qualified to handle the multitasking required by the unit secretary position. Id. 89-90. Dr. Valle did, however, clear Mr. Turner to return to work as a file clerk. Id. at 117. The record is unclear as to the essential functions of a file clerk, and how they differentiate from those of a unit secretary.
On April 24, 2006, Mr. Turner met with two GBMC employee relations representatives. EEOC Summ. J. Mem. Ex. 22. Mr. Turner was told that, because he was not able to return from leave to the same job classification and work the same number of hours he had previously worked, GBMC was not required to provide him a new position. Id. Mr. Turner was also informed that unless he found a suitable position, his employment with GBMC would end when his leave expired on June 30, 2006. Id. Mr. Turner was then made aware of two job openings at GBMC for a part-time unit secretary and a part-time file clerk. Id.
On April 27, 2006, Mr. Turner told the employee relations representatives that he would not be applying for the file clerk position because it required mostly standing and walking, and because he did not think the job would be challenging enough. GBMC Reply Ex. 14. Mr. Turner did apply for the part-time unit secretary position, however, which was in the surgical intensive care unit, and reiterated his desire to return to GBMC's labor and delivery unit or postpartum units as a unit secretary on a part-time or as-needed basis. EEOC Summ. J. Mem. Exs. 28-30. On May 4, 2006, a GBMC employee representative notified Mr. Turner that Dr. Valle did not recommend him for any unit secretary positions, and therefore he would not be considered for those jobs, but encouraged Mr. Turner to continue looking for open positions at GBMC that might suit his skills and abilities. Id. Ex. 30.
On May 15, 2006, Dr. Rosenblum examined Mr. Turner and found him in "much better physical condition than any time since 1992," when he first became Dr. Rosenblum's patient.
EEOC Summ. J. Mem. Ex. 31. Accordingly, Dr. Rosenblum cleared Mr. Turner to work full-time with no restrictions. Id. Despite this positive medical review, Mr. Turner did not inform the SSA that he was able to return to work. On June 1, 2006, Dr. Valle met with Mr. Turner and agreed that Mr. Turner could return to work full-time. Id. Ex. 8 at 114-16. Dr. Valle maintained, however, that Mr. Turner was not able to return to his old job as a unit secretary. Id. at 148. On June 9, 2006, a GBMC employee representative offered Mr. Turner the opportunity to apply for a float pool file clerk position. GBMC Reply Exs. 15, 16. Mr. Turner did not apply, though, because the position was at an office far from where he lived and he felt it would require too much driving. Id. That same month, Mr. Turner unsuccessfully applied for three other file clerk positions. EEOC Summ. J. Mem. Exs. 33-36. On June 30, 2006, when Mr. Turner's general leave expired, GBMC terminated Turner's employment. Id. Ex. 39.
On August 10, 2006, Mr. Turner began volunteering at GBMC's GYN and Bariatric Clinics, and has worked over 1,100 volunteer hours since that time. EEOC Summ. J. Mem. Ex. 40. Since 2006, Mr. Turner has applied to approximately twenty-eight positions at GBMC-ten of which GBMC concedes Mr. Turner was qualified for-but has never been rehired. Id. Exs. 37, 42.
On January 12, 2007, Mr. Turner completed an intake questionnaire for the EEOC in which he stated that his disability would not affect his ability to work as a unit secretary and that he never requested a reasonable accommodation because he did not need one. GBMC Summ. J. Mem. Ex. 16. On February 21, 2007, Mr. Turner presented a charge of discrimination against GBMC to the EEOC, alleging disability discrimination based upon his termination and GBMC's failure to reinstate him to the unit secretary position. Id. Ex. 18. On February 28, 2007, Mr. Turner amended his charge to add a sex discrimination claim. Id. Ex. 19. Though the EEOC subsequently investigated Mr. Turner's charges and requested documents and a position statement from GBMC, the EEOC took no further action for two years. Eventually, in March 2009, the EEOC requested more documents from GBMC. On March 31, 2009, the EEOC issued a letter of determination finding reasonable cause to believe that GBMC violated the ADA by terminating Mr. Turner because of his disability and refusing to employ Mr. ...