Smith v. Tishman

Background

Stewart M. Smith worked for Tishman Construction Corporation as a Site Security Escort at a construction project in Guantanamo Bay for about three months. His duties included escorting and monitoring people who lacked required security clearances and conducting security sweeps. Smith had a kidney condition that manifested in kidney stones. Before he arrived at the project, Tishman allowed him to remain in Virginia for two weeks for a kidney procedure.

Smith called out sick on January 10, 2019, without stating in his email that he was experiencing a kidney stone attack. He also complained that Tishman owed him overtime and that he was falling behind on mortgage payments. Tishman believed Smith had intentionally called out to interfere with the rollout of a new Construction Security Plan. When Smith returned to work the next day, he left the jobsite after being directed to complete his timesheet and handed his keys to a non-Tishman employee. Tishman viewed this as abandoning his post and violating security procedures. Tishman fired Smith effective January 21, 2019.

Smith’s amended complaint asserted two Americans with Disabilities Act claims—failure to provide a reasonable accommodation and termination because of his disability—and a state-law breach-of-contract claim. Tishman moved for summary judgment, which asks whether the evidence shows a genuine dispute requiring a trial.

ADA Claims

The court assumed, without deciding, that Smith’s kidney condition qualified as a disability under the Americans with Disabilities Act. The court therefore resolved the motion on other grounds.

For the termination claim, Tishman offered insubordination, failure to follow instructions, and failure to meet performance expectations as legitimate, nondiscriminatory reasons for firing Smith. The court held that Smith did not present evidence from which a reasonable factfinder could conclude those reasons were a pretext—a false explanation hiding disability discrimination. The court emphasized that Fleming knew about Smith’s kidney condition when he hired him and allowed him extra time in Virginia for his kidney procedure. The court also found no evidence that Fleming knew Smith had suffered a kidney stone attack on January 10, because Smith’s sick-day email did not mention one and Smith did not say that he told Fleming about such an attack.

The court separately held that Smith failed to identify a reasonable accommodation. Smith proposed spending no more than ten percent of his workday outside and the rest inside an air-conditioned trailer. The court found that the essential function of his position was physically escorting and personally or visually monitoring uncleared personnel, and Smith did not dispute Tishman’s position that he could not perform those duties from inside the trailer. The court also rejected comparisons to a coworker with a different job and to Smith’s earlier assignment in Australia because Smith did not show that those circumstances involved the same duties. To the extent Smith argued that Tishman should have hired more security escorts, the court held that hiring additional employees was not a reasonable accommodation. The court also found no evidentiary support for newly asserted claims about denied water, cooling, meal, or bathroom breaks.

State-Law Contract Claim

After granting summary judgment on the federal ADA claims, the court declined to exercise supplemental jurisdiction, meaning jurisdiction over a related state-law claim, over Smith’s breach-of-contract claim. The court found that the contract issues were not easily resolved and included unsettled or unclear questions about changing an at-will employee’s compensation terms, the contract’s provisions concerning Smith’s employment assignment, and the amount of overtime compensation allegedly paid after his termination. The court also found that fairness did not require retaining the claim and that considerations of respect for state courts favored allowing the state-law issues to be addressed there.

The court dismissed the contract claim without prejudice. It explained that Smith could refile the claim in state court and that the limitations period would be extended for the period provided by federal law after dismissal.

Requests to Add Claims and Obtain More Proceedings

Smith raised possible claims under the Fair Labor Standards Act and the New York Labor Law in his opposition to summary judgment, although those claims were not in his amended complaint. The court denied leave to amend as untimely and dilatory. It also stated that, in any event, the proposed claims would not succeed on the facts and law discussed in the opinion: the New York Labor Law did not apply to work performed outside New York, and the Fair Labor Standards Act’s foreign-workplace exemption applied to the work described here.

The court denied Smith’s requests to postpone decision on summary judgment, provide additional opportunities to respond, or allow further discovery. The court stated that the case had been pending for nearly four years and that Smith had eight months to conduct discovery. It concluded that all pending motions were moot, directed the clerk to terminate Tishman’s summary-judgment motion, and closed the case.

Disposition

Tishman’s motion for summary judgment was granted with respect to the ADA claims. Smith’s contract claim was dismissed without prejudice. Leave to amend and the requests for additional discovery or briefing were denied.