KEVIN H. SHARP, District Judge.
Plaintiff William C. Powell was terminated from his employment with Lowe's Home Centers, LLC after he was observed urinating next to shopping carts located near the front entrance of the store where he worked. Defendant has filed a Motion for Summary Judgment (Docket No. 18), to which Plaintiff has responded in opposition (Docket No. 25), and Defendant has replied (Docket No. 28). Additionally, Plaintiff has also filed a Motion to Strike Declaration of Michael Limbert (Docket No. 27). For the reasons that follow, Defendants Motion will be granted while Plaintiff's Motion will be denied.
On February 6, 2008, Plaintiff was hired as an hourly employee to work at Lowe's Hendersonville, Tennessee store. In September 2011, he was transferred to a morning stocker job under Freight Flow Department Manager Tommy Huskey.
Morning stockers are responsible for stocking the inventory that is delivered to the store overnight. Those goods are stacked on pallets at the end of each aisle.
In performing their stocker duties, most employees use a handjack to roll the loaded pallet to the middle of the aisle, open the boxes there, and place the items on the aisle's shelves. Plaintiff utilized a different approach. He left the loaded pallet at the end of the aisle, opened the boxes, put the merchandise from the boxes onto a board placed across a shopping cart, wheeled the cart down the aisle, and then lifted the merchandise from the cart and placed it on the shelf.
Huskey believed that Plaintiff could reduce the amount of times he had to bend over and pick up items if he would stop transferring his items to the cart before he put the items on the shelf. Regardless of the stocking method used, Plaintiff was required to bend over to retrieve the items from the pallet.
On several occasions, Huskey told Plaintiff that he was stocking the shelves too slowly.
Sometime around July 1, 2012, and several months into Plaintiff's employment as a morning stocker, he told Huskey that his back had been bothering him. Huskey checked with Human Resources to make sure Plaintiff did not have any work restrictions, and confirmed that Plaintiff did not have any restrictions at the time.
On June 26, 2012, Plaintiff was operating an order picker, stocking upper shelves more than 10 feet off the ground. He operated the cherry picker in that fashion without aisle blockers
Failing to use blockers while operating an order picker at a height of more than eight feet while the store is open to the public is a Class A violation of Defendant's equipment policy for which an employee can be immediately terminated. Nevertheless, Plaintiff was issued a "Final Notice" or "poor job performance." (
Apparently around the same time that Plaintiff complained to Huskey about his back hurting, Plaintiff spoke with Martin and told her that the reason he used the shopping cart method and did not place items directly from the pallet onto the shelves was because of his back. Martin provided Plaintiff with an ADA Accommodation Request Form that requested medical information from his doctor.
On July 20, 2012, Plaintiff submitted the completed ADA form. On the form, Plaintiff indicated that he had to "avoid bending over at the waist and working for sustained periods," and that he needed "to stand upright as much as possible, such as working from a cart rather than a pallet." (Pf. Depo. Ex. 11). He also indicated that "it has become very difficult for me to perform the duties of morning stocker" and that "the stocking job is just too strenuous for my condition." (
In addition to the ADA form, Plaintiff submitted a note from his doctor that indicated Plaintiff suffered from herniated disks in his back. The note also explained that the "condition makes it very painful and difficult to work bending over at the waist or in low places for periods of time," and that Plaintiff "needs to work in an upright position as much as possible." (
On August 1, 2012, and in response to the submissions, Plaintiff was offered a position as cashier/telephone operator at a pay rate of $9.19 per hour. On the Interactive Process Form signed by both Plaintiff and Martin, Plaintiff "accept[ed] the provided accommodation," and wrote, "I appreciate the opportunity I have been given. I intend to do a good job and help in any way possible." (
The hourly rate for a cashier/telephone operator
On the afternoon of November 15, 2012, as Martin was exiting the store, she saw Plaintiff urinating just outside the public entrance in the area where customers retrieve shopping carts.
Defendant decided that Plaintiff's actions created or contributed to unsanitary conditions for Lowe's customers and employees, in violation of its Code of Business Conduct and Ethics. Because he was already working under a Final Notice, Defendant terminated Plaintiff's employment on November 28, 2012.
Plaintiff moves to strike the declaration of Michael Limbert that Defendant filed in support of its Motion for Summary Judgment because Limbert was not identified in Defendant's initial disclosure or discovery responses. As an alternative, Plaintiff requests that discovery be reopened so that he can depose Limbert. In response, Defendant asserts that it was compelled to use Limbert as its custodian of records because Tammie Brown, who was listed in the initial disclosures, died during the pendency of this action.
Limbert is a Field Human Resources Director for Lowe's, and his declaration is primarily that of a custodian of records. Plaintiff complains about his declaration to the extent it is used to support paragraphs 15, 18 and 24 of Defendant's Statement of Undisputed Material Facts. The Court sees no need to strike the declaration, or to allow Plaintiff to conduct additional discovery.
In paragraph 15, Defendant states that "Plaintiff worked more actual hours, on average, after he was moved to the cashier position than he worked when he was a stocker," (Docket No. 20 at 4), but the Court finds it unnecessary to rely on this statement in resolving the Motion for Summary Judgment. In paragraph 18, Defendant states that "[t]he failure to use blockers while operating an order picker is a Class A violation of the Equipment Policy, for which an employee can be immediately terminated under the Discipline Policy" (id. at 5), but Plaintiff conceded both points in his deposition.
Accordingly, Plaintiff's Motion to Strike will be denied.
The standards governing summary judgment are well known. A party may obtain summary judgment if the evidence establishes there are no genuine issues of material fact for trial and the moving party is entitled to judgment as a matter of law.
Plaintiff's Complaint is relatively short, but not a model of clarity. He begins by stating, "COMES NOW Plaintiff, by and through counsel, and alleges the following in this case against Defendant:
To the extent Plaintiff is raising a claim under the TDA, "it is time-barred because the statute of limitations for bringing such an action is one year."
Insofar as Plaintiff alleges a hostile work environment or retaliation, those claims fail because they were not mentioned in his Charge filed with the Equal Employment Opportunity Commission, nor could they be expected to arise out of any investigation of the Charge that was filed.
The ADA prohibits covered employers from discriminating against a "qualified individual on the basis of disability" with regard to hiring, advancement, training, termination, and "other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a). "The plaintiff shoulders the initial burden of showing that he is disabled and "otherwise qualified" for the position, either without accommodation from the employer, with an alleged essential job requirement eliminated, or with a proposed reasonable accommodation."
Here, Plaintiff appears to be asserting that Defendant engaged in disability discrimination and failed to provide a reasonable accommodation with respect to both his alleged incontinence and back problems.
Claims alleging discrimination under the ADA may be proven by either direct or circumstantial evidence.
In the disability discrimination section of his response brief, Plaintiff argues that "[m]ost of the evidence in this case is actually direct evidence — action taken or not, and negative feelings deriving, [sic] directly in response to Plaintiff's request for accommodations due to his disability." (Docket No. 25 at 10, emphasis in original). Despite this broad assertion, he never identifies any direct evidence in this case.
Direct evidence is evidence that proves the existence of a fact without requiring any inferences."
In the absence of direct evidence, discrimination claims under the ADA are analyzed under the burden shifting approach. "To make out a prima facie case of employment discrimination through indirect evidence under [the ADA], a plaintiff must show that `1) he or she is disabled; 2) otherwise qualified for the position, with or without reasonable accommodation; 3) suffered an adverse employment decision; 4) the employer knew or had reason to know of the plaintiff's disability; and 5) the position remained open while the employer sought other applicants or the disabled individual was replaced.'"
Insofar as his disability discrimination claim is based upon alleged incontinence, that fails at the prima facie stage because he has not shown that he was disabled within the meaning of the ADA. It also fails because he has not shown that Defendant was aware of the alleged disability.
Under the ADA, an individual is disabled if she has:
In his response brief, Plaintiff points out that "major life activity means "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing,
A better fit is probably the impairment of a major bodily function under 42 U.S.C. § 12102(2)(b) which indicates that a major life activity includes "functions of the . . . bladder." Even so, Plaintiff has not shown that he was so impaired at the time of his termination.
The record reflects that in February 2010, Plaintiff was taking medicine for incontinence, urinated in a colorant bottle in the paint department where he was working,
As for the problems with his back, Plaintiff's case fails at the prima facie stage because he cannot show an adverse employment action. "An adverse employment action is a `materially adverse change in the terms or conditions of . . . employment because of [the] employer's conduct.'"
The inability to establish a prima facie case aside, Defendant has presented legitimate, non-discriminatory reasons for its actions which Plaintiff has not shown to be pretextual. Plaintiff received a Final Warning for his admitted Class A safety violation and while under that warning was caught urinating near the front entrance of the store. That these facts presented just cause for termination cannot be seriously questioned. Thus, it falls on Plaintiff to show that the stated reasons for the adverse actions were a pretext for disability discrimination.
"Under the law of our circuit, a plaintiff can show pretext in three interrelated ways: (1) that the proffered reasons had no basis in fact, (2) that the proffered reasons did not actually motivate the employer's action, or (3) that they were insufficient to motivate the employer's action."
Plaintiff urinated on store grounds while on Final Notice for not using aisle blockers, and there is no evidence that Defendant did not truly believe that Plaintiff's admitted policy violations warranted his discharge. Moreover, Plaintiff has pointed to no other employees who suffered a lesser fate for the same or substantially similar conduct. If Defendant harbored a discriminatory animus toward Plaintiff, it likely would have terminated him after he was found to have urinated in the colorant bottle, or when he failed to use aisle blockers while using the cherry picker during open store hours.
"The key question is always whether, under the particular facts and context of the case at hand, the plaintiff has presented sufficient evidence to permit a reasonable jury to conclude that he or she suffered an adverse employment action under circumstances giving rise to an inference of unlawful discrimination."
As noted, the ADA prohibits discrimination because of disability against "a qualified individual with a disability." 42 U.S.C. § 12112(a). It also defines "discrimination" to include "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A).
"[C]laims premised upon an employer's failure to offer a reasonable accommodation necessarily involve direct evidence (the failure to accommodate) of discrimination."
Insofar as Plaintiff asserts that Defendant failed to accommodate his alleged incontinence, that claim fails because, as stated previously, Plaintiff has failed to establish that he had a disability recognized by the ADA or show that Defendant was aware of a covered disability. Regardless, that claim fails because he presents no evidence that he ever asked for a reasonable accommodation.
In his response brief, while Plaintiff claims that "the restrooms at Lowes were in the back, about 300 feet away from the cashier stations at the front of the store, he admits that he "did not think to formally request extra breaks due to the now long distance to the restroom." (Docket No. 25 at 14). Plaintiff also admits he never provided Defendant with any doctor's notes about his need for bathroom breaks. Defendant cannot be held liable for failing to engage in an interactive process when it did not know that there was a need for that dialogue.
Plaintiff's reasonable accommodation claim with respect to his back issues fails as well. He argues that he could have remained a morning stocker if he had been allowed to use his shopping cart approach, or perhaps been allowed to use a motorized cart. He does not dispute, however, that even those approaches required him to bend over and pick merchandise up off the pallet.
On the basis of the foregoing, Defendant's Motion for Summary Judgment will be granted. Plaintiff's Motion to Strike will be denied.
An appropriate Order will be entered.
(Docket No. 21-1, Pf. Depo. at 142).
