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Steven Bennett v. Kaiser Permanente

March 20, 2013


The opinion of the court was delivered by: Alexander Williams, Jr. United States District Judge


Pending before the Court is Defendant's Motion for Summary Judgment. The Court has reviewed the record and deems a hearing unnecessary. For the following reasons, the Court GRANTS Defendant's Motion for Summary Judgment.


This case sounds in employment discrimination. Plaintiff Steven Bennett is a natural person who resides in the state of Maryland. Defendant Kaiser Foundation Health Plan of the Mid-Atlantic States, Inc. (Kaiser Permanente) is a managed care consortium that is headquarted in California and that has offices in Maryland.

Defendant hired Plaintiff as a lead nurse in 1998 at its Camp Springs facility. A lead nurse performs the duties of a registered nurse and has some additional duties. Suzanne McKay-Mahaffey, who is also a registered nurse, supervised Plaintiff. McKay-Mahaffey gave Plaintiff a positive performance appraisal for the year of 2006.

On January 28, 2008, a patient went to the Camp Springs facility to get a TB test. Instead of giving the patient a TB test, Plaintiff injected him with insulin. Evidently, Plaintiff's mistake did not harm the patient.

Shortly thereafter, Plaintiff spoke with McKay-Mahaffey about the incident. Plaintiff told her that he did not know how the mistake happened and that he did not want be a "liability." See Pl.'s Dep. 82:11--17, Doc. No. 41-2; McKay-Mahaffey Aff. ¶ 3, Doc. No. 41-4. Plaintiff and McKay-Mahaffey agreed that he should see a doctor to determine if a medical condition caused his error. See Pl.'s Dep. 81--82, Doc. No. 41-2; McKay-Mahaffey Aff. ¶ 9, Doc. No. 41-4. McKay-Mahaffey gave Plaintiff a form titled "ADA-Medical Certification" for his doctor to fill out.

On February 11, 2008, Plaintiff's doctor evaluated him. Plaintiff's doctor diagnosed him with the following conditions: diabetes mellitus, post-traumatic stress disorder, sleep apnea, peripheral neuropathy, and fibromas of the feet. Doc. No. 43-1, at 15. In the space corresponding to the question whether any of the medical conditions substantially limited Plaintiff's major life activities, the form states "ability to engage in prolonged walking or standing." Id. The form also states that "[i]t is possible that the lapse in memory on the date [in] question was [caused] by his chronic pain, sleep disorder [sic]." Id. (emphasis added).

Following the medical evaluation, McKay-Mahaffey placed Plaintiff on "Level 4 corrective action," the highest level of discipline before discharge. Partly on the suggestion of Plaintiff's union representative, McKay-Mahaffey discussed the possibility of reassigning Plaintiff to the position of message management nurse with Cynthia Fields, Clinical Coordinator at the Marlow Heights Kaiser medical center. See McKay-Mahaffey Aff. ¶ 11, Doc. No. 41-4; Doc. No. 41-3, at 78. The message management nurse position was sedentary, and its duties included advising patients whether to schedule appointments with doctors and deciding which type of doctor a patient needed to see.

On a March 2008 day, apparently in the morning, Plaintiff received a message indicating that a patient had experienced weakness in her extremities the night before. Plaintiff contacted the patient and asked her about her symptoms. Although Plaintiff ruled out the possibility that the patient was having a stroke, Plaintiff was concerned that she could have been experiencing a medical problem. Plaintiff looked into scheduling the patient to see a primary care physician at the Marlow Heights care center and saw that all of the doctors were booked. Therefore, Plaintiff scheduled the patient to be seen at an urgent care facility at 5:00 p.m. on the same day. Evidently, Plaintiff's failure to schedule the patient to see a primary care physician at the Marlow Heights center did not harm her.

Fields contacted McKay-Mahaffey about the scheduling incident. Fields stated that she no longer wanted Plaintiff to work as a message management nurse. McKay-Mahaffey placed Plaintiff on administrative leave and initiated an investigation. McKay-Mahaffey determined that the patient had experienced stroke-like symptoms and that Plaintiff did not discuss scheduling her to be seen at an urgent care facility later that day with her doctor. McKay-Mahaffey concluded that Plaintiff endangered the patient. Therefore, on or around March 20, 2008, McKay-Mahaffey gave Plaintiff the option of resigning or being fired. Plaintiff chose to resign.*fn1

There is no evidence that Plaintiff requested a disability accommodation after the scheduling incident.

Plaintiff filed a charge of discrimination in September 2008. Doc. No. 43-1, at 17. In the charge's section for "particulars," Plaintiff specifies that "I believe I have been discriminated against . . . with regard to discipline and discharge based on my age . . . and disability." Id. (emphasis added). Plaintiff's charge does not state that Plaintiff requested a reasonable accommodation or that Plaintiff could have performed either nurse position with a reasonable accommodation. See id.

Plaintiff filed a Complaint in September 2010, which he amended twice. See Doc. Nos. 1, 4, 16. Plaintiff asserts claims under the ADA for disparate treatment and failure to provide a reasonable accommodation. Plaintiff also asserts an age discrimination claim under the ADEA. At the close of discovery, Defendant moved for summary judgment. Doc. No. 41. Defendant argues that the Court lacks subject matter jurisdiction over Plaintiff's reasonable accommodation claim. Defendant also contends that it terminated Plaintiff for nondiscriminatory reasons, and that the evidence does not support a reasonable inference that these reasons were pretexts for disability or age discrimination. Plaintiff filed an Opposition and Defendant a Reply, and the matter is ripe for review.


A. Subject Matter Jurisdiction

A plaintiff asserting an ADA claim "has the burden of proving the existence of subject matter jurisdiction." Jones v. Am. Postal Workers Union, 192 F.3d 417, 422 (4th Cir. 1999). Courts may consider materials outside the pleadings to determine whether they have subject matter jurisdiction. See Zander v. United States, 843 F. Supp. 2d 598, 603 (D. Md. 2012) (internal quotation marks omitted) (citing Smith v. Wash. Metro. Area Transit Auth., 290 F.3d 201, 205 (4th Cir. 2002)).

B. Summary Judgment

Summary judgment is appropriate only "if the movant shows that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323--25 (1986). The Court must "draw all justifiable inferences in favor of the nonmoving party, including questions of credibility and of the weight to be accorded particular evidence." Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). To defeat a motion for summary judgment, the nonmoving party must come forward with affidavits or similar evidence to show that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A disputed fact presents a genuine issue "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. Material disputes are those that "might affect the outcome of the suit under the governing law." Id.

Although the Court should believe the evidence of the nonmoving party and draw all justifiable inferences in his or her favor, "[t]he nonmoving party . . . cannot create a genuine dispute of material fact through mere speculation or the building of one inference upon another." See Beal v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985) (citation omitted). Further, if a party "fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2). Finally, hearsay statements or conclusory statements with no evidentiary basis cannot support or defeat a motion for summary judgment. See Greensboro Prof'l Firefighters Ass'n, Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).


A. Subject Matter Jurisdiction

Defendant argues that the Court lacks subject matter jurisdiction over Plaintiff's reasonable accommodation claim because it is not reasonably related to the allegations in his EEOC charge. Predictably, Plaintiff responds that his reasonable accommodation claim is reasonably related to his charge.

"Prior to filing a [lawsuit] alleging violations of the ADA . . . , a plaintiff must first exhaust administrative remedies." Snead v. Bd. of Educ. of Prince George's Cnty., 815 F. Supp. 2d 889, 894 (D. Md. 2011) (citations omitted). "Under [the ADA], the exhaustion requirements and filing procedures are identical to those applicable to claims under Title VII." Lewis v. MV Transp., Inc., Civil Action No. 8:12--cv--00983--AW, 2012 WL ...

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