United States District Court, D. Delaware
Santiago Aguilera, New Castle, Delaware. Pro Se Plaintiff.
Patrice DeLuca, Esquire, and Matthew F. Boyer, Esquire,
Connolly Gallagher LLP, Wilmington, Delaware. Counsel for
ANDREWS, U.S. DISTRICT JUDGE.
Jorge Santiago Aguilera appears pro se and has been
granted leave to proceed in forma pauperis. He
commenced this employment discrimination action against
Defendants Zachary W. Davis ("Davis") and
Davis-Young Associates, Inc. ("Davis-Young") on
October 1, 2015. (D.I. 2). The complaint alleges employment
discrimination by reason of disability pursuant to the
Rehabilitation Act of 1973, as amended, 29 U.S.C.
§§ 701, etseq. ("Rehab Act"),
and the Americans with Disabilities Act of 1990, as amended,
42 U.S.C. §§ 12101, etseq.
("ADA"). The Court has jurisdiction pursuant to 28
U.S.C. § 1331. Before the Court are the parties'
cross-motions for summary judgment. (D.I. 31, 34). Briefing on
the matters has been completed.
LEGAL AND FACTUAL BACKGROUND
alleges employment discrimination by reason of disability
resulted in the termination of his employment (D.I. 2).
Approximately twenty-two years ago, Plaintiff began working
as a laborer for Davis-Young, a landscaping company. (D.I. 33
at Ex. 1; D.I. 33-1 at Ex. 2 at p.7). Plaintiff became a
master mason. (D.I. 33-1 at Ex. 2 at p.7). As a master mason,
Plaintiff reported to Davis for his work assignments. (D.I.
33 at Ex. 1; D.I. 33-1 at Ex. 2 at p.8). Plaintiff worked 40
hours per week, depending on the weather. (D.I. 33-1 at Ex. 2
at p.8). Plaintiff understood that he was to "always
notify either Mr. Davis or Mr. [Timothy] Young, " the
other co-owner of Davis-Young, when he had a doctor's
suffered a work related back injury on February 26, 2003,
received workers' compensation benefits, and returned to
work on March 8, 2003. (D.I. 33 at Ex. 1). Davis never
considered the back injury a reason to terminate Plaintiffs
employment as long as he was willing and able to work.
(Id.). Plaintiff suffered another work related back
injury in July 2013. (D.I. 33 at Ex. 1; D.I. 33-1 at Ex. 2 at
p.10; D.I. 37 at p.1). Davis-Young accommodated Plaintiff and
provided him full-time work within his doctor's work
restrictions, on "medium duty" as of August 2013.
(D.I. 33 at Ex. 1; D.I. 33-1 at Ex. 2 at p.11).
reported to work at 7:30 a.m. on the morning of October 24,
2014. (D.I. 33 at Ex. 1; D.I. 33-1 at Ex. 2 at p.11). He was
performing a work related duty and was laying under a
wheelbarrow when he had very intense back pain and could not
get up. (D.I. 33-1 at Ex. 2 at p.11; D.I. 37 at p.1).
Plaintiff called his father, who is also employed at
Davis-Young, for a ride home. (Id.). After he was
taken home, Plaintiff drove to see a physician who evaluated
him for low back pain. (D.I. 33-1 at Ex. 2 at p. 12, Ex. 3 at
p.1). The physician recommended a follow-up appointment and
for Plaintiff to rest, avoid strenuous activity, apply heat
and ice to the area, avoid heavy lifting, and take medication
as prescribed. (Id. at Ex. 3 at p.1). The physician
provided Plaintiff a Duty Form that indicated his work status
was "Modified duty as of 10/24/14. Anticipated date of
return to full duty 10/31/14." (D.I. 33 at Ex. 1E; D.I.
33-1 at Ex. 2 at p.13). During his deposition, Plaintiff
testified that the form meant he could return to work as of
October 24, 2014. (D.I. 33-1 at Ex. 2 at p. 13). He also
testified that he could not return to work because he could
not walk. (D.I. 33-1 at Ex. 2 at p.13; D.I. 37 at p.1).
Plaintiff gave the Duty Form to his father to deliver to
Davis-Young the following Monday, October 27, 2014.
(Id.) Davis believes he saw the form about a week or
a week and a half later. (D.I. 33 at Ex. 1).
believes he left a voicemail message for Davis on October 24,
2014 to let him know why he left work and cell phone records
indicate that Plaintiff called Davis at 8:48 a.m. in the
morning. (D.I. 11 at p.2; D.I. 32 at Ex. 5 D.I. 33-1 at Ex. 2
at p.12; D.I. 35 at p.3). Plaintiff testified that he did not
tell Davis how much time he needed off from work, "I
didn't tell him how long, no because, and maybe it was my
mistake, that I thought it was the same treatment as the
first injury." (D.I 33-1 at EX 2 at p.15). He also
testified that, while he did not actually speak with Davis,
he left a voicemail telling Davis "what the doctor had
said, which was to take medication and rest for two
weeks." (Id. at p.12). Plaintiff did not report to
work the following week, beginning October 27, 2014, or
communicate with Davis or anyone at Davis-Young that week,
outside of having his father deliver the Duty Form on October
27, 2014, that indicated he was able to work. (D.I. 33 at Ex.
1; D.I. 33-1 at Ex. 2 at 13). Telephone records indicate
that, other than on October 24, 2014, Plaintiff made no calls
to Davis or to Davis-Young between October 24, 2014 and
November 17, 2014. (D.I. 32-5 at Ex. 5).
was under pressure from a customer to complete a job at the
job site where Plaintiff had been working and, as a result,
he was forced to find a laborer to fill in for Plaintiff to
finish the job. (D.I. 33 at Ex. 1). Around October 28, 2014,
Davis filled the job with a laborer from Hardy Landscape,
LLC, who was already a subcontractor at that worksite.
did not report for work or communicate with Davis-Young from
October 30, 2014 through November 6, 2014. (D.I. 33 at Ex.
1). Both Davis and Young asked Plaintiffs father where
Plaintiff was, but he had no information other than that
Plaintiff was hanging out in the basement in the house he
shared with his father. (Id.). Davis recalled an
earlier conversation with Plaintiff when he was told that
Plaintiff was looking for other employment. (Id.).
Davis concluded that Plaintiff had decided to abandon his job
with Davis-Young since he left his job and did not return or
update Davis. (Id.)
had no contact with Davis or Davis-Young until November 7,
2014, when he came to the office to collect his pay check.
(D.I. 33 at Ex. 1; D.I. 33-1 at Ex. 2 at p.17). Plaintiff
testified that at that time, Davis informed him he no longer
had a job with Davis-Young. (D.I. 33-1 at Ex. 2 at
p.17). Plaintiff returned to Davis-Young on
November 17, 2014, and he testified that on that date Davis
again told him that he no longer had a job at Davis-Young.
(Id. at 20). Davis agrees that he told Plaintiff on
November 17, 2014, that he no longer had a job. (D.I. 33 at
Ex. 1). According to Davis, Davis-Young was prepared to
accommodate Plaintiff's work limitations and had medium
duty work available for Plaintiff to complete when he
abandoned his job on October 24, 2014. (Id.)
filed a charge of discrimination on December 23, 2014,
alleging disability discrimination following his October 2014
injury for failure to accommodate and employment termination.
(D.I. 2 at p.4).