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Aguilera v. Davis

United States District Court, D. Delaware

September 12, 2017

JORGE SANTIAGO AGUILERA, Plaintiff,
v.
ZACHARY W. DAVIS, et al., Defendants.

          Jorge Santiago Aguilera, New Castle, Delaware. Pro Se Plaintiff.

          Lauren Patrice DeLuca, Esquire, and Matthew F. Boyer, Esquire, Connolly Gallagher LLP, Wilmington, Delaware. Counsel for Defendants.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE.

         Plaintiff 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.[1] (D.I. 31, 34). Briefing on the matters has been completed.

         I. LEGAL AND FACTUAL BACKGROUND

         Plaintiff 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 appointment. (Id.).

         Plaintiff 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).

         Plaintiff 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).

         Plaintiff 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).[2] 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).

         Davis 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. (Id.).

         Plaintiff 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.)

         Plaintiff 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).[3] 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.)

         Plaintiff 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).

         II. ...


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