United States District Court, D. Maryland
Paula Xinis United States District Judge.
disability discrimination case concerns the termination of
Michael Tyson from his employment at Defendant Optimal
Solutions & Technologies, Inc. (OST). Pending before the
Court is Defendant's motion for summary judgment (ECF No.
41), Defendant's motion to seal certain exhibits (ECF No.
40), Plaintiff Equal Employment Opportunity Commission's
(EEOC) motion to strike the declaration of Samia Sikander
(ECF No. 43) and Plaintiff's cross-motion for summary
judgment (ECF No. 42). The motions are fully briefed and no
hearing is necessary. See Loc. R. 105.6. For the
following reasons, the Court grants OST's motion to seal
and denies the EEOC's motion to strike Samia Sikander as
moot. As for the summary judgment motions, the
Court grants in part and denies in part the EEOC's
partial motion and denies OST's motion.
following facts are undisputed. OST is a technology,
engineering, and services contractor that serves governmental
agencies and the private sector. ECF No. 41 at 8. OST is
headquartered in McLean, Virginia, but has several other
offices, including one in Hyattsville, Maryland. Id.
At the Hyattsville location, OST serviced several contracts
with the Federal Emergency Management Administration
(“FEMA”). Id. at 9. An infrastructure
group in the office helped service those contracts and
included a help desk, systems engineers, SharePoint
administrators, and other employees. Id.; ECF No.
42-3 at 4.
is a database that allows insurance adjusters working for
FEMA to review documents in claims files. ECF No. 42-5 at 6.
SharePoint administrators at OST managed two SharePoint
servers for FEMA and were responsible for backing up the
SharePoint servers and providing users access to sites within
SharePoint. ECF No. 4-24 at 14. Mike Adibpour managed this
infrastructure group, which fell under a larger business unit
managed by Robert Wilkison. ECF No. 41-25 at 5-6; ECF No.
42-3 at 4. Adibpour directly supervised William Wang, a
senior SharePoint administrator, Eric Zarnosky, a systems
engineer, Samia Sikander, who worked the help desk, and
Tyson. ECF No. 42-3 at 4-5; ECF No. 42-5 at 5; ECF No. 41-18
applied to OST on June 3, 2016, having spent years working in
the IT field and with SharePoint. ECF No. 41-4 at 7; ECF No.
42-2 at 17-21. Days later, OST hired Tyson for the position
of senior SharePoint Administrator. ECF No. 41-6 at 2; ECF
No. 42-2 at 6. Adibpour was Tyson's direct supervisor.
ECF No. 42-3 at 4.
like all new OST employees, was subject to a six month
probationary period. ECF No. 41-5 at 16. The probationary
period is designed to “see if the employee is a good
fit with the company…[and] the role” and whether
he is “able to perform the job duties.” ECF No.
41-26 at 16-7. Once an employee completes the probationary
period, he is subject to a written progressive discipline
policy to address employment related shortcomings. The policy
provides for graduated responses to employment related
issues, to include a verbal and written warning prior to
termination. ECF No. 42-6 at 18; ECF No. 41-5 at 35-37.
came to his new position at OST having struggled for six
years with eye problems that included double vision, an
inability to adduct his right eye (inability to turn his
right eye outward), ptosis (drooping eyelid), and
exophthalmos (protruding eye). ECF No. 42-4 at 3-5, 9. Just
before Tyson started his new job, he had been diagnosed with
a meningioma or a benign tumor located in the membranes that
surround the brain and spinal cord. Id. at 9, 13,
15. Tyson's treating neurosurgeon, Dr. Howard Eisenberg,
arrived at this diagnosis after reviewing the results of
Tyson's MR scan and concluded that the tumor, which
pressed on Tyson's optic nerve, most likely was causing
the above-described symptoms. Id. at 6-7, 15;
see also ECF No. 40-3. Dr. Eisenberg noted that the
problem was “progressive” and referred Tyson to
Dr. Robert Malyapa to begin proton beam radiation therapy, a
novel and advanced treatment designed to shrink certain
tumors. ECF No. 42-4 at 16. Treatment was set to begin around
October 2016. ECF No. 42-2 at 14-15.
after Tyson began at OST, he shared with Adibpour that he had
a brain tumor. ECF No. 41-13 at 2; ECF No. 41-15 at 5.
According to Tyson, the two men discussed their respective
health conditions. ECF No. 41-23 at 35-36. Tyson also told
Adibpour that he would receive treatment on his own time so
he would not need to miss work, and that the targeted
radiation would not have any side effects. Id.; ECF
No. 41-15 at 5. Although Adibpour denies that this
conversation ever took place, ECF No. 41-24 at 27-28,
Tyson's coworker, Eric Zarnosky testified that he learned
about Tyson's brain tumor from Adibpour and that on many
occasions Adibpour expressed to Zarnosky concern about
whether Tyson could do his job in light of his health
condition. ECF No. 42-5 at 18, 20, 22; see also ECF
No. 42-7 ¶¶ 16, 18 (OST coworker Timothy
Connor's sworn declaration as to having learned of
Tyson's brain tumor from Adibpour and of his concern that
Tyson would not be able to perform his job adequately).
the time Tyson worked at OST, he and Wang were at odds. ECF
No. 41-18 ¶ 11; ECF No. 41-24 at 20-21. Although Wang
had worked at OST far longer than Tyson, Wang had become
widely known for his abrasive and combative demeanor.
See ECF No. 42-5 at 13-14 (Zarnosky describing
incident in which Adibpour stated Wang needed to be fired);
id. at 15 (“[e]verybody in that office had an
issue with [Wang] at some point. [Wang] had some type of
confrontation with almost every person he interacted
with); id. at 31; ECF No. 41-27 at 4
(OST employee Stephanie Ankrah describing that Wang behaved
disrespectfully and yelled at her, which she reported to
Adibpour); id. at 9 (Ankrah describing Wang having
lunged at another female employee); ECF No. 42-7 ¶ 9
(Connor describing Wang as “often combative and
challenged people over obscure technical matters”).
Others, including Zarnosky, also expressed concern that Wang
could not perform the necessary job requirements. ECF No.
42-5 at 14, 16- 17; ECF No. 42-7 ¶ 8. Adibpour, prior to
learning of Tyson's brain tumor, had even discussed with
Zarnosky his intent to fire Wang once Tyson familiarized
himself with the FEMA SharePoint system. ECF No. 42-5 at 13,
15, 18, 31; ECF No. 41-22 at 4.
September 14, 2016, Tyson, Wang and Zarnosky engaged in a
heated email exchange, culminating with Tyson emailing his
two coworkers to “stop this nonsense and just LOG ON TO
THE SERVER!!”. ECF No. 42-6 at 26-29. This exchange
took place on the FEMA email system, and thus was accessible
to OST's client. Id.
September 27, 2016, Adibpour issued Wang and Zarnosky verbal
warnings for the email exchange. ECF No. 47-9 at 2-3. Tyson,
in contrast, was terminated. ECF No. 41-13. ECF No. 41-21 at
8-10. Mary Homer, OST's head of Human Capital Management,
explained that Wang received only a warning because he was no
longer a probationary employee, whereas Tyson, with only
three months at OST, was fired because he was still on
probation. ECF No. 41-21 at 8, 14. However, Homer also
acknowledged that all OST personnel are at-will employees,
subject to termination at any time. Id. at 19-20.
filed a formal charge of disability discrimination with the
EEOC, and the agency elected to pursue the claim against OST.
ECF No. 41-13. In the Complaint filed before this Court, the
EEOC alleges that OST discriminated against Tyson when it
fired him on account of an actual and perceived disability,
in violation of Section 102(a) of Title I of the ADA, 42
U.S.C. § 12112(a). ECF No. 1 ¶ 22.
Standard of Review
judgment is appropriate when the Court, viewing the evidence
in the light most favorable to the non-moving party, finds no
genuine disputed issue of material fact, entitling the movant
to judgment as a matter of law. See Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th
Cir. 2008). “A party opposing a properly supported
motion for summary judgment ‘may not rest upon the mere
allegations or denials of [his] pleadings,' but rather
must ‘set forth specific facts showing that there is a
genuine issue for trial.'” Bouchat v. Baltimore
Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir.
2003) (quoting former Fed.R.Civ.P. 56(e)). “A mere
scintilla of proof . . . will not suffice to prevent summary
judgment.” Peters v. Jenney, 327 F.3d 307, 314
(4th Cir. 2003). Importantly, “a court should not grant
summary judgment ‘unless the entire record shows a
right to judgment with such clarity as to leave no room for
controversy and establishes affirmatively that the adverse
party cannot prevail under any circumstances.'”
Campbell v. Hewitt, Coleman & Assocs., Inc., 21
F.3d 52, 55 (4th Cir. 1994) (quoting Phoenix Sav. &
Loan, Inc. v. Aetna Casualty & Sur. Co., 381 F.2d
245, 249 (4th Cir. 1967)). Where the party bearing the burden
of proving a claim or defense “fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden of proof at trial, ” summary judgment
against that party is likewise warranted. Celotex,
477 U.S. at 322.
as here, cross motions for summary judgment are filed, a
court must ‘evaluate each party's motion on its own
merits, taking care [in each instance] to draw all reasonable
inferences against the party whose motion is under
consideration.'” Snyder ex rel. Snyder v.
Montgomery Cty. Pub. Sch., No. DKC 2008-1757, 2009 WL
3246579, at *5 (D. Md. Sept. 29, 2009) (quoting Mingus
Constructors, Inc. v. United States, 812 F.2d 1387, 1391
(Fed. Cir. 1987)).
parties cross move for summary judgment on whether Tyson is
protected under the ADA. The parties also vigorously dispute
whether OST fired Tyson because of his brain tumor or because
of poor job performance. The Court first discusses the
pertinent statutory and regulatory framework, and then turns
to the parties' cross motions.