RONNIE L. WHITE, District Judge.
This matter is before the Court on Defendant Rafco Clean, LLC's Motion for Summary Judgment. (ECF No. 24) Plaintiff Jennifer Sandbach opposes the motion. (ECF No. 29) After careful consideration, the Court grants Defendant's motion and enters summary judgment in Defendant's favor.
Defendant Rafco Clean, LLC is a janitorial company that provides cleaning and maintenance services for commercial properties. (Def. Rafco Clean, LLC's Statement of Uncontroverted Material Facts in Supp. of Its Mot. for Summ. J. ("SUMF") ¶ 1, ECF No. 24-1) Plaintiff Jennifer Sandbach began her employment with Defendant in May 2015 as a day porter, tasked with cleaning and general building upkeep. (Id. at ¶¶ 2-3) Andre Logan was Plaintiff's immediate supervisor, and Brian Gerkens was her second-level manager. (Id. at ¶¶ 4-5)
On July 14, 2017, Defendant terminated Plaintiff's employment. (Id. at ¶ 35) The termination notice specifically cited the following attendance violations over the preceding ninety days: six absences; thirty-seven instances of tardiness, which were defined as being more than seven minutes late; and twenty-four instances of leaving work early. (Id. at ¶¶ 35-36)
On January 10, 2018, Plaintiff dual filed charges of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Missouri Commission on Human Rights ("MCHR"). (Pet. for Damages ¶ 5, ECF No. 5) She received right to sue notices from the EEOC on March 19, 2018 and the MCHR on May 17, 2018. (Id. at ¶¶ 6-7) In June 2018, Plaintiff initiated this civil action against Defendant in state court asserting violations of the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. § 12101, et seq., and the Missouri Human Rights Act (MHRA), Mo. Rev. Stat. § 213.010 et seq. (Id. at 1 & 5) Plaintiff alleges that Defendant's stated reason for terminating her employment was false and a pretext for discrimination based on Gerkens's perception that Plaintiff was disabled because of her health impairments, which she asserts were the cause of her attendance issues. (Id. at ¶ 18)
Defendant removed the case to federal court pursuant to 28 U.S.C. §§ 1331, 1367, and 1441(a). (ECF No. 1) In the instant motion, Defendant argues it is entitled to summary judgment with respect to both claims of discrimination. (ECF No. 24) Plaintiff opposes the motion. (ECF No. 29)
The Court may grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986); Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011). The substantive law determines which facts are critical and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome will properly preclude summary judgment. Id. Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
A moving party always bears the burden of informing the Court of the basis of its motion. Celotex Corp., 477 U.S. at 323. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the "mere existence of some alleged factual dispute." Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 248. The nonmoving party may not rest upon mere allegations or denials of his pleading. Id.
In passing on a motion for summary judgment, the Court must view the facts in the light most favorable to the nonmoving party, and all justifiable inferences are to be drawn in his favor. Celotex Corp., 477 U.S. at 331. The Court's function is not to weigh the evidence but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Torgerson, 643 F.3d at 1042 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
Defendant moves for summary judgment by arguing that Plaintiff has failed to establish a prima facie case of discrimination under either the ADA or MHRA, that it had a legitimate and non-discriminatory reason for terminating her employment, and that Plaintiff has not shown that reason was pretextual.
The ADA prohibits covered employers from discriminating against a "qualified individual" on the basis of disability. 42 U.S.C. § 12112(a). A "qualified individual" under the ADA is defined as a person "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." Id. § 12111(8). "Under the ADA, prohibited discrimination includes discrimination against a qualified individual because of his or her disability (i.e., intentional discrimination), see 42 U.S.C. § 12112(a)—(b)(1), as shown by evidence of disparate treatment or other proof that will vary according to the specific facts of the case." Lipp v. Cargill Meat Sols. Corp., 911 F.3d 537, 543 (8th Cir. 2018) (citing Young v. Warner-Jenkinson Co., Inc., 152 F.3d 1018, 1022 (8th Cir. 1998)).
In the absence of direct evidence of an employer's discriminatory intent, a plaintiff may offer indirect evidence of disability discrimination. Id. at 544. In cases where a plaintiff relies on indirect evidence to prove intentional discrimination under the ADA, courts apply the burden-shifting framework provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination by demonstrating "(1) that the plaintiff was disabled within the meaning of the ADA; (2) that the plaintiff was qualified to perform the essential functions of the job [with or without a reasonable accommodation]; and (3) a causal connection between an adverse employment action and the disability." Lipp, 911 F.3d at 544 (quoting Oehmke v. Medtronic, Inc., 844 F.3d 748, 755 (8th Cir. 2016)). If the plaintiff establishes a prima facie case, "the burden of production then shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse action." Id. (quoting Oehmke, 844 F.3d at 755). The burden then shifts back to the plaintiff to show that the employer's proffered reason was a pretext for discrimination. Id.
Plaintiff asserts she is not disabled, but she argues Defendant — namely Gerkens — regarded her as disabled due to her admitted physical and mental impairments. As amended, the ADA defines "disability" as "(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment...." 42 U.S.C. § 12102(1). An individual is "regarded as having such an impairment" if that individual has been "subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." Id. § 12102(3)(A) (emphasis added).
According to Plaintiff, she suffered from numerous mental impairments (post-traumatic stress disorder ("PTSD"), depression, and anxiety) and physical impairments (an unspecified gynecological condition that resulted in bleeding and vomiting). While she maintains these impairments did not negatively impact her ability to perform her work functions as a day porter, she contends her absences were the result of her needing to consult various doctors during the relevant time period in early 2017. Plaintiff admits that neither Gerkens nor anyone else employed by Defendant made explicit comments indicating they regarded her as disabled. (Dep. of Jennifer Sandbach 48:3-21, ECF No. 24-3) Rather, she asks the Court to infer Gerkens perceived her as disabled when he admonished her for her absenteeism and tardiness and allegedly warned that she would be fired if she missed work to attend a medical appointment. (Id.)
Defendant argues Plaintiff has failed to demonstrate anyone regarded her as disabled. Specifically, Gerkens attests that he was not aware of any of Plaintiff's physical or mental impairments. (SUMF ¶ 19, ECF No. 24-1) At most, he knew that Plaintiff had been hospitalized at one occasion and that some of her absences were due to medical appointments. (Id. at ¶¶ 9-12) Gerkens maintains, however, that he neither asked why Plaintiff had been hospitalized nor was told the exact reason by Plaintiff.
Additionally, Defendant argues Plaintiff's allegations about Gerkens's interactions with her fail to create an inference that he regarded her as disabled. First, Plaintiff believes that Gerkens regarded her as disabled because he was "short" with her, "arrogant," and generally treated her as though she was beneath him. (SUMF ¶ 41, ECF No. 24-1) However, Plaintiff testified that Gerkens's alleged condescending treatment towards her started when she began her employment with Defendant. (Dep. of Jennifer Sandbach 68:10-24, ECF No. 24-3) Second, Gerkens denies communicating to Plaintiff or anyone else that he believed she was a "nut job," "mentally unstable," or otherwise disabled in any form as Plaintiff alleges. (SUMF ¶ 14, ECF No. 24-1) Lastly, Gerkens denies telling Plaintiff she would be fired if she missed work to attend a medical appointment.
The Court finds that Plaintiff has failed to establish a prima facie case of discrimination under the ADA. The gravamen of Plaintiff's argument is that her interactions with Gerkens suggest he believed she was disabled due to her history of tardiness and absenteeism.
The Court is mindful that it must draw all justifiable inferences in the nonmoving party's favor when ruling on a motion for summary judgment. See Celotex Corp., 477 U.S. at 331. Plaintiff, however, has failed to offer facts to suggest the inferences she seeks are reasonable. At most, Gerkens knew Plaintiff had been hospitalized on one occasion and that some of her absences were due to medical appointments. These facts, without more, are insufficient to demonstrate a reasonable inference that Gerkens regarded her as disabled.
Plaintiff has also failed to show Defendant perceived her as disabled in a way that substantially limited a major life activity. "An employer regards an employee as disabled if it `mistakenly believes that the employee has an impairment (which would substantially limit one or more major life activity), or [it] mistakenly believes that an actual impairment substantially limits one or more major life activity.'" Christensen v. Titan Distribution, Inc., 481 F.3d 1085, 1093 (8th Cir. 2007) (alteration in original) (quoting Chalfant v. Titan Distribution, Inc., 475 F.3d 982, 988-89 (8th Cir. 2007)). Working is considered a major life activity. 42 U.S.C. § 12102(2)(A). Here, Plaintiff has failed to present any evidence demonstrating how Defendant believed she was substantially limited in her ability to perform her job functions. Rather, Defendant clearly did not believe Plaintiff was limited in her ability to work because it wanted her to appear and perform the full duties as a day porter. Accordingly, because there is no evidence that Defendant believed any alleged impairment substantially limited Plaintiff's ability to work, she has failed to establish a prima facie case of discrimination under the ADA.
Furthermore, Defendant has shown a legitimate, nondiscriminatory reason for terminating Plaintiff's employment. See Lipp, 911 F.3d at 544. Defendant maintains it fired Plaintiff due to her history of excessive absences, tardiness, and leaving work early. Specifically, over the ninety-day period leading up to her termination, Plaintiff was absent from work six times,
Plaintiff has failed to show that Defendant's proffered reason was a pretext for discrimination. See Lipp, 911 F.3d at 544. "A plaintiff may show pretext, among other ways, by showing that an employer (1) failed to follow its own policies, [or] (2) treated similarly-situated employees in a disparate manner...." E.E.O.C. v. Prod. Fabricators, Inc., 763 F.3d 963, 970 (8th Cir. 2014) (alteration in original) (quoting Lake v. Yellow Transp., Inc., 596 F.3d 871, 874 (8th Cir. 2010)). Plaintiff argues Defendant failed to follow its progressive discipline procedure because her third "purported" warning was not followed by a three-day suspension. (Pl.'s Resp. to SUMF. J. ¶ 30, ECF No. 26) Defendant counters that its doing something positive for Plaintiff by not enforcing the three-day suspension is insufficient evidence to establish pretext to hide discriminatory intent. The Court agrees. It is undisputed that Plaintiff received the necessary three warnings prior to her termination. Plaintiff attempts to argue another employee, Liz Fiala, was similarly situated to her but treated more favorably. Defendant avers Fiala suffered from a temporary physical impairment (a broken wrist) and was granted a leave of absence. Plaintiff has not cited to evidence in the record to persuade the Court that Fiala had a record of attendance issues to warrant finding her similarly situated to Plaintiff. On the other hand, Defendant notes it fired four other similarly-situated non-disabled day porters between July 2017 and February 2018 due to poor attendance records similar to Plaintiff's.
Lastly, Defendant has consistently stated Plaintiff was discharged solely due to her excessive attendance violations. See Fatemi v. White, 775 F.3d 1022, 1048 (8th Cir. 2015) (noting that a plaintiff may demonstrate pretext by pointing to an employer's shifting explanations for an adverse employment decision). Here, Plaintiff has failed to present any evidence that Defendant has ever shifted its explanation or that its consistently-stated reason for her termination, her attendance violations, was false.
Because of this analysis, the Court finds that Defendant is entitled to summary judgment on Plaintiff's ADA claim.
Under the MHRA, a plaintiff asserting a disability-discrimination claim must show (1) she has a disability, (2) the employer took an adverse action against her, and (3) her disability was a factor in the adverse action. Heuton v. Ford Motor Co., 930 F.3d 1015, 1019 (8th Cir. 2019). The MHRA defines disability, in relevant part, as "a physical or mental impairment which substantially limits one or more of a person's major life activities, being regarded as having such an impairment, or a record of having such an impairment, which with or without reasonable accommodation does not interfere with performing the job." Mo. Rev. Stat. § 213.010(5). The Supreme Court of Missouri has stated that courts deciding claims brought under the MHRA "are guided by both Missouri law and federal employment discrimination caselaw that is consistent with Missouri law." Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. 2007) (en banc), abrogated on other grounds by Mo. Rev. Stat. § 213.101.4. "Where a plaintiff relies on indirect proof of discrimination, claims of age or disability discrimination under the MHRA, like those under the federal anti-discrimination statutes, are analyzed under the burden-shifting analysis set forth in [McDonnell Douglas]." Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 964 (8th Cir. 2006).
Based on the above analysis, Plaintiff's claim under the MHRA fails for the same reasons as her ADA claim. First, she has failed to show Gerkens or anyone else associated with Defendant regarded her as disabled. Second, Defendant has consistently offered a legitimate, non-discriminatory reason for discharging Plaintiff. And third, Plaintiff has failed to show that reason was pretextual. Consequently, the Court grants summary judgment in favor of Defendant on the MHRA claim.
Accordingly,
A separate Judgment accompanies this Memorandum and Order.
