GREG N. STIVERS, District Judge.
This matter is before the Court on the Motion for Summary Judgment filed by Defendant Best Buy Co., Inc. ("Best Buy") (DN 17). Because the time to file a response has passed, this matter is ripe for a decision. For the reasons outlined below, the motion is
Plaintiff Robert A. Sharp, Jr. ("Sharp") was employed by Defendant Best Buy Co., Inc. ("Best Buy") in its Bowling Green, Kentucky, store as an auto technician in the vehicle install bay. (Sharp Dep. 41:18-20, Sept. 23, 2014, DN 17-2). While the position was initially part-time, Sharp eventually went to full-time status and was later promoted to the position of lead auto technician, which he held until the time of his termination. (Sharp Dep. 41:23-42:3, 42:16-18, 44:8-12). As an employee of Best Buy, Sharp was familiar with Best Buy's zero-tolerance sexual harassment policy and knew that engaging in sexual harassment was grounds for termination. (Sharp Dep. 169:11-22).
The record reflects that Sharp had been diagnosed as having narcolepsy and cataplexy. (Sharp Dep. 67:7-17). During his employment, Sharp presented a note dated June 14, 2012, from his treating physician requesting that Best Buy accommodate Sharp's disability by avoiding shift work. (Def.'s Mot. for Summ. J. Ex. C, DN 17-4; Sharp Dep. 73:17-74:10). With the exception of one scheduling mistake, the uncontroverted record reflects that Best Buy provided the requested accommodation. (Sharp Dep. 73:8-16).
On June 13, 2013, Best Buy first became aware of alleged sexual harassment by Sharp when fellow employee Chloe Cesler ("Cesler") made a verbal complaint to a person named Monique
In her e-mail message, Cesler noted that many of those events had been observed by co-workers and that she was aware that other female employees had been subject to sexual harassment by Sharp. (Def.'s Mot. for Summ. J. Ex. G at 2, DN 17-8).
Monique investigated Cesler's complaint over a period of several weeks. (Crossland Decl. ¶¶ 6-8, DN 17-3). During the investigation, Monique spoke with other Best Buy employees or obtained written statements from them regarding Sharp's workplace misconduct. (Def.'s Mot. for Summ. J. Ex. H at 2-26, DN 17-9). Besides confirming Cesler's complaint, the co-workers conveyed information about other incidents of sexual harassment, which included:
As a result of its investigation, Best Buy determined that Sharp's conduct violated its sexual harassment policy. (Crossland Decl. ¶ 9). On July 26, 2013, Thomas Crossland, the store's General Manager, terminated Sharp's employment. (Crossland Decl. ¶ 9; Sharp Dep. 44:13-14).
Sharp filed this lawsuit alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101-12117; and KRS 207.150 and KRS 207.170, which are provisions of Kentucky Equal Opportunities Act ("KEOA"). (Compl. ¶¶ 17-22, DN 1). The deadline for discovery has passed, and Best Buy has moved for summary judgment. (Def.'s Mot. for Summ. J., DN 17). Sharp did not respond to the motion.
This Court has subject-matter jurisdiction of Sharp's ADA claim pursuant to 28 U.S.C. § 1331. The Court also has supplemental jurisdiction over Plaintiff's pendent state law claims. See 28 U.S.C. § 1367.
In ruling on a motion for summary judgment, the Court must determine whether there is any genuine issue of any material fact that would preclude entry of judgment for the moving party as a matter of law. See Fed. R. Civ. P. 56(a). The moving party bears the initial burden stating the basis for the motion and identifying evidence in the record that demonstrates an absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the moving party satisfies its burden, the non-moving party must the produce specific evidence proving the existence of a genuine issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
While the Court must view the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show the existence of some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (citation omitted). Rather, the non-moving party must present specific facts proving that a genuine factual issue exists by "citing to particular parts of the materials in the record" or by "showing that the materials cited do not establish the absence . . . of a genuine dispute." Fed. R. Civ. P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In its motion, Best Buy argues that summary judgment is warranted on all of Plaintiff's claims. Each claim is separately addressed below.
In the Complaint, Sharp asserts that Best Buy terminated him because of his disability in violation of the federal and state law.
Under the ADA, an employer cannot discriminate ""against a qualified individual on the basis of disability in regard to . . . discharge of employees, . . . and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a).
To prove a claim of disability discrimination, a plaintiff may rely upon direct or circumstantial evidence. See Johnson v. Kroger Co., 319 F.3d 858, 864-65 (6th Cir. 2003). In the absence of direct evidence—which does not exist in this case—a plaintiff may rely upon circumstantial evidence to prove a claim based upon the burden-shifting articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that framework, Sharp bears the initial burden of proving a prima facie case of disability discrimination. See Demyanovich v. Cadon Plating & Coatings, LLC, 747 F.3d 419, 433 (6th Cir. 2014). If he meets that burden, Best Buy must prove a legitimate, nondiscriminatory reason for terminating Sharp's employment. See Parry v. Mohawk Motors of Mich., Inc., 236 F.3d 299, 310 (6th Cir. 2000) (citation omitted). Assuming Best Buy meets its burden, Sharp has the ultimate burden of proving pretext. See id.
To meet his initial burden, Sharp had to prove a prima facie case of disability discrimination. As the Sixth Circuit has held:
Whitfield v. Tennessee, 639 F.3d 253, 258-59 (6th Cir. 2011) (citation omitted).
To establish that he has a disability, Sharp had to prove that he has "a physical or mental impairment that substantially limits one or more major life activities. . . ." 42 U.S.C. § 12102(2)(A). The applicable regulations explain that the term "substantially limits" should be broadly construed and what it means in the context of a disability:
29 C.F.R. § 1630.2(j)(i), (ii). Under the applicable regulations, the term "major life activities" includes activities like "[c]aring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working. . . ." 29 C.F.R. § 1630.2(i)(i). See also McPherson v. Fed. Express Corp., 241 F. App'x 277, 283 (6th Cir. 2007) ("[T]he mere fact that McPherson has suffered from these maladies does not mean he was "substantially limited" in the "major life activity" of seeing. The record does not demonstrate and McPherson does not argue that he was unable to see relative to how well the general population can see, or that he was "[s]ignificantly restricted as to the condition, manner or duration under which" he could see "as compared to the condition, manner, or duration under which the average person in the general population can." (citation omitted)).
In its motion, Best Buy argues that Sharp has failed to prove that he has a disability. While acknowledging his diagnosis of narcolepsy, Best Buy maintains that Sharp failed to prove that he suffers from a physical or mental impairment that substantially limits a major life activity. (Def.'s Memo. in Support of Mot. for Summ. J. 24-25). The Court agrees. While Sharp did ask for and receive a regular work shift, the record is otherwise devoid of proof as to any physical or mental impairment that substantially limited a major life activity.
Sharp has also failed to present any evidence as to the last prong relating to any replacement Best Buy may have hired after his termination. Accordingly, he cannot meet his initial burden of proving a prima facie case, which warrants the entry of summary judgment in Best Buy's favor.
Once a plaintiff has made a prima facie case, "the burden then shifts to the defendant to set forth a legitimate, nondiscriminatory reason for the adverse employment action it took against the plaintiff." Kocsis v. Multi-Care Mgmt., Inc., 97 F.3d 876, 883 (6th Cir. 1996) (citing McDonnell Douglas, 411 U.S. at 802). Best Buy has stated that Sharp was terminated due to sexual harassment in violation of its zero-tolerance sexual harassment policy. As discussed previously, it developed evidence in the record reflecting that Best Buy interviewed numerous co-workers who corroborated Cesler's initial report and brought to light additional instances of sexual harassment by Sharp. Thus, Best Buy has met its burden.
Finally, Sharp "must then prove `by a preponderance of the evidence' that the defendant's proffered reasons were not its true reasons, but were merely a pretext for illegal discrimination." Kocsis, 97 F.3d at 883 (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981)). In particular, "a plaintiff must produce enough evidence that a jury could reasonably reject the employer's explanation for its decisions." Id. (citing Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1083 (6th Cir. 1994)).
While Sharp has not responded to the motion, the Court has reviewed the evidence in the record and concludes that there is a lack of evidence to prove pretext. While Sharp testified that he disagrees with the allegations of sexual harassments, the unrefuted evidence is that Cesler's allegations were corroborated by co-workers and that Cesler's complaint was the impetus for the investigation into Sharp's workplace misconduct. (Sharp Dep. 154:12-155:1; Crossland Decl. ¶¶ 5-9).
While Sharp may wish for this Court to second-guess Best Buy's decision to terminate his employment, courts "cannot sit as a super-personnel department," and "it is inappropriate for the judiciary to substitute its judgment for that of management." Saulsberry v. Fed. Express Corp., 552 F. App'x 424, 430 (6th Cir. 2014) (citing Krenik v. Cnty. of Le Sueur, 47 F.3d 953, 960 (8th Cir. 1995) (internal quotation marks omitted)). Accordingly, Sharp's denial that he engaged in sexual harassment alone is insufficient proof to meet his burden of proving pretext. See Blizzard v. Marion Technical Coll., 598 F.3d 275, 286 (6th Cir. 2012) ("Blizzard's `disagreement with [MTC's] honest business judgment regarding [her] work does not create sufficient evidence of pretext in the fact of the substantial evidence that [MTC] had a reasonable basis to be dissatisfied.'" (alterations in original) (quoting Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001)). Likewise, he cannot rely upon speculation of an ulterior motive to prove pretext.
For these reasons, Sharp has failed to meet both his burden to prove a prima facie case and prove pretext, and Best Buy articulated a legitimate, nondiscriminatory reason for his termination. Accordingly, the Court will grant summary judgment on this claim.
Best Buy also argues that it is entitled to summary judgment on Sharp's failure to accommodate claim. To prevail on this claim, Plaintiff has to prove "that (1) he has a disability; (2) that he is `otherwise qualified' for the job; and (3) that the defendant refused to make a reasonable accommodation for his disability. . . ." Smith v. Ameritech, 129 F.3d 857, 866 (6th Cir. 1997) (citation omitted). With respect to failure to accommodate claims, courts have analyzed such claims as follows:
Turner v. City of Paris, No. 5:11-CV-351-KSF, 2012 WL 6706164, at *2 (E.D. Ky. Dec. 26, 2012) (internal citations omitted) (citation omitted). Plaintiff, however, cannot prove all of the elements of his claim.
As outlined above, Sharp has failed to prove that he has a disability. In addition, Sharp has failed to identify any specific reasonable accommodation that he requested and prove that Best Buy failed to provide it. While he did request a regular work schedule, the record reflects that Best Buy provided that accommodation. In his deposition, Sharp testified:
(Sharp Dep. 73:8-16). Thus, by Sharp's own admission, Best Buy provided the accommodation he requested. As a result, Sharp cannot prove a prima facie case.
For these reasons, Sharp failed to prove that Best Buy did not provide reasonable accommodations as required by federal or state law. The Court will grant summary judgment on this claim.
Best Buy also seeks dismissal of Sharp's retaliation claim. To prevail on this claim, Sharp must prove that "(1) [he] engaged in [a] protected activity; (2) [the employer] knew that [he] engaged in the protected activity; (3) [the employer] subsequently took an adverse employment action against [the plaintiff]; and (4) the adverse action was causally related to the protected activity." Ladd v. Grand Trunk W. R.R., 552 F.3d 495, 502 (6th Cir. 2009) (internal citations omitted) (citation omitted).
Based upon the record, Sharp can prove the first three elements of his claim but cannot prove causation. "To establish the causal connection required in the fourth prong, a plaintiff must produce sufficient evidence from which an inference could be drawn that the adverse action would not have been taken had the plaintiff not filed a discrimination action." Barlow v. Triden Constr. Supply, Inc., No. 3:01CV-271-H, 2002 WL 927422, at *6 (W.D. Ky. Apr. 26, 2002) (citing Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). See also Hollowell v. Mich. Consol. Gas Co., 18 F. App'x 332, 342 (6th Cir. 2001) ("To establish a [causal] connection between the protected activity and the adverse employment action, the plaintiff must show that his participation in the protected activity was a "significant factor" in the employer's adverse employment action, not merely that there was a causal link between the two." (citation omitted)).
In September 2012, Sharp filed a charge with the Equal Employment Opportunity Commission ("EEOC"). (Sharp Dep. 81:19-82:9; Def.'s Mot. for Summ. J., Ex. D, DN 17-5). Best Buy terminated his employment on July 26, 2013, following Cesler's report of sexual harassment on June 13, 2013. Thus, the sequence of events reflects that more than 9 months had passed between the filing of the EEOC charge and his termination, which is insufficient for the purpose of establishing causation through temporal proximity alone. See Underhill v. Caudill, 186 F.Supp.2d 736, 741 (W.D. Ky. 2001) (concluding that a period of four months is insufficient to establish temporal proximity). As the Sixth Circuit has held, "temporal proximity alone will not support an inference of retaliatory discrimination when there is no other compelling evidence." Arendale v. City of Memphis, 519 F.3d 587, 606 (6th Cir. 2008) (internal quotation marks omitted) (quoting Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir. 2000)). Thus, Sharp cannot rely upon temporal proximity to prove his retaliation claim.
As Sharp conceded during his deposition, conduct constituting sexual harassment was a violation of Best Buy's personnel policies. (Sharp Dep. 45:11-15). In addition to denying the allegations, Sharp testified that he believed that his co-workers fabricated the allegations of sexual harassment against him because they blamed him for getting a co-worker fired. (Sharp Dep. 77:9-24). Even if Sharp's suspicion were true, he cannot defeat Best Buy's motion for summary judgment "as long as [his] employer [had] an honest belief in its proffered nondiscriminatory reason." Michael v. Caterpillar Fin. Servs. Corp., 496 F.3d 584, 598 (6th Cir. 2007) (quoting Majewski v. Automatic Data Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001) (internal quotation marks omitted)). As the Sixth Circuit has stated:
Id. at 598-99 (citations omitted). During Best Buy's investigation, various co-workers corroborated Cesler's initial report of Sharp's sexual harassment and brought to light additional instances of similar inappropriate conduct directed towards other employees. Thus, there was sufficient evidence that Best Buy's determination to terminate his employment was reasonably informed and was a considered decision.
Because Sharp has failed to prove that the filing of his EEOC charge was a "significant factor" in his termination, he failed to prove a causal link required for his prima facie case.
For the foregoing reasons,
