Sanford v. Slade's Country Stores, LLC

Filing 46

MEMORANDUM OPINION AND ORDER as follows: (1) Defendant's 28 Motion for Summary Judgment is GRANTED in PART and DENIED in PART; (2) It is GRANTED with respect to Sanfords retaliation claim and her association discrimination claim relating to th e termination of her employment; (3)Defendant is entitled to judgment as a matter of law as to Sanford's retaliation claim and her association discrimination claim relating to the termination of her employment, those claims are DISMISSED WITH PR EJUDICE; and (4) The motion is DENIED with respect to Sanford's ADA association discrimination claim relating to the denial of equal opportunity to participate in the company health insurance plan. Signed by Hon. Chief Judge Mark E. Fuller on 4/7/2010. (Attachments: # 1 Civil Appeals Checklist)(cb, )

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IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION T IN A SANFORD, P L A IN T IF F , v. S L A D E 'S COUNTRY STORES, LLC, DEFEND AN T. ) ) ) ) ) ) ) ) ) C A S E NO. 2:08-cv-956-MEF (W O - PUBLISH) M E M O R A N D U M OPINION AND ORDER In this lawsuit, Tina Sanford ("Sanford") alleges that her former employer Slade's C o u n t ry Stores, LLC 1 ("Slade's Stores") discriminated against her in relation to certain e m p lo ym e n t decisions because her son had a disability and retaliated against her after she f il e d her Charge of Discrimination with the Equal Employment Opportunity Commission. P u rs u a n t to 42 U.S.C. 12101, et seq., the Americans with Disabilities Act ("ADA"), S an fo rd seeks redress. This cause is presently before the Court on Defendant Slade's C o u n try Stores, Inc.'s Motion for Summary Judgment (Doc. # 28). The Court has carefully c o n s id e re d the undisputed evidence filed with the motion and the applicable law and d is c e rn e d that the motion for summary judgment is due to be GRANTED in part and D E N IE D in part for the reasons set forth below. Slade's Stores has repeatedly noted that it is incorrectly named in the Complaint and co n seq u en tly in the style of this case. Slade's Stores' proper name is apparently Slade's C o u n try Stores, Inc. It is incumbent upon Sanford's counsel, not the Court to correct this e rr o r. 1 J U R IS D IC T I O N AND VENUE J u ris d ic tio n over this matter is properly asserted pursuant to 28 U.S.C. 1331. The p a rtie s do not contest personal jurisdiction or venue and the Court finds adequate allegations o f both. S T A N D A R D OF REVIEW FOR SUMMARY JUDGMENT U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact a n d that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). "An issue of fact is `genuine' if the record as a whole c o u ld lead a reasonable trier of fact to find for the nonmoving party. An issue is `material' if it might affect the outcome of the case under the governing law." Redwing Carriers, Inc. v . Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty L o b b y , Inc., 477 U.S. 242, 248 (1986)). The party asking for summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex, 477 U.S. at 323. The movant can meet this burden by presenting evidence s h o w in g there is no dispute of material fact, or by showing the non-moving party has failed 2 to present evidence in support of some element of its case on which it bears the ultimate b u rd e n of proof. Id. at 322-23. Once the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). I n d e e d , a party opposing a properly submitted motion for summary judgment may not rest u p o n mere allegations or denials of his pleadings, but must set forth specific facts showing th a t there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578, 1580 (11 th Cir. 1 9 9 0 ). On the other hand, a court ruling on a motion for summary judgment must believe th e evidence of the non-movant and must draw all justifiable inferences from the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255. After the n o n m o v in g party has responded to the motion for summary judgment, the court must grant su m m a ry judgment if there is no genuine issue of material fact and the moving party is e n title d to judgment as a matter of law. See Fed. R. Civ. P. 56(c). FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the 3 lig h t most favorable to the non-moving parties, establish the following material facts: S la d e ' s Stores Slade's Stores is an Alabama corporation owned by Gaines Slade and Ina Slade. They b o th worked for the corporation during the time period relevant to this case. It also appears th a t their son Gaines Slade Jr. ("Slade Jr.") played some role in the corporation's operations. W h ile he did not have a specific title, Slade Jr. had authority to make decisions in Gaines S la d e 's absence. In the relevant time period, Slade's Stores owned convenience stores at f o u r locations. These stores were located in Wetumpka, Pintlala, and Hope Hull, Alabama. H ir in g of Sanford S la d e 's Stores hired Sanford in April of 2007. It is not entirely clear who made the d e c is io n to hire Sanford. Sanford's testimony is that her initial interview involved only Slade Jr. and Gaines Slade. (Doc. # 35-4 at 3).2 During this interview, Sanford told the Slade Jr. th a t her youngest child had disabilities that required her to tend to his special medical and ed u ca tio n al needs. (Doc. # 35-1 at p. 70, lines 9-15). Sanford has further provided sworn te stim o n y to the effect that she also told Gaines Slade that her youngest child was disabled a n d had multiple medical and learning problems when she was first interviewing.3 (Doc. # Gaines Slade cannot remember for sure if he hired Sanford himself. (Doc. # 30-2 at p. 25, lines 11-13). He opined that it could have been him or it could have been Debra B a ss , who was at some point employed as bookkeeper for Slade's Stores and as such had h irin g authority. Id. Through his testimony, Gaines Slade disputes the extent to which he had knowledge a b o u t the specific problems of Sanford's youngest child. Nonetheless, for purposes of re so lv in g this motion, the Court must avoid resolving disputed issues of material fact and 4 3 2 3 5 -4 at 3). Initially, Sanford worked at one of the Hope Hull stores, but in May or June, s h e was asked to begin working at the Pintlala store. Slade's Stores increased her pay when s h e began working at the Pintlala store. Health Insurance A f ter ninety days of employment, employees of Slade's Stores had the opportunity to a p p ly for health insurance coverage. Slade's Stores paid half of the premium for each p a rtic ip a tin g employee, and each participating employee was responsible for paying half of th e premium. Slade's Stores disclosed the existence of this employment benefit in its e m p lo ye e handbook. According to Ina Slade's testimony, it was also customary for the c o m p a n y bookkeeper to disclose this to newly hired employees at the beginning of their em p loym en t and to provide new hires with a copy of the employee handbook. (Doc. # 30-3 a t p. 14, line 18 through p. 15, line 21). Ina Slade admits, however, that she was not around f o r that process and cannot say whether any particular employee was told about the health in s u ra n c e plan. Id. Sanford's testimony is that insurance was never offered to her during her employment w ith Slade's Stores. Sanford testified that no one ever discussed any company insurance w ith her at the beginning of her employment and that no one ever gave her any forms relating to insurance. There is no evidence before this Court from which a reasonable jury could find t h a t anyone from Slade's Stores ever provided Sanford with a copy of the employee must construe the evidence in the light most favorable to Sanford. 5 h a n d b o o k . Indeed, Sanford denies ever knowing one existed.4 Sometime after being moved to work at the Pintlala store in May or June of 2007, Sanford asked Gaines Slade if the c o m p a n y had any insurance, but he replied that he didn't have any company insurance.5 B e c au s e Sanford was not offered the opportunity to participate in the health insurance o f f ere d to Slade's Stores employees after ninety days of employment, she went without h e a lth insurance coverage and was responsible for paying her medical bills out of her own p o c k e t. According to Sanford, sometime in the last sixty days of her employment with Slade's S to re s,6 a coworker mentioned in passing that she had health insurance coverage through her e m p lo ym e n t with Slade's Stores. This was the first time Sanford heard anything about any S la d e 's Stores' employee having health insurance through the company. After learning that th is co-worker had insurance, Sanford eventually approached another co-worker, Mike C h e s s e r, to ask if he also had insurance. He indicated that he did and that he paid for some p a rt of that insurance. Sanford believes that Slade's Stores denied her the opportunity to participate in the h e a lth insurance plan because she had a handicapped child who required numerous There is evidence before the Court that a copy of the employee handbook was m a in ta in e d in each of the Slade's Stores locations, but there is no evidence that Sanford ever k n e w that it was there. 5 4 Gaines Slade denies that Sanford every asked about insurance. Sanford's employment was terminated at the end of October of 2007. This period is presumably sometime in September or October of 2007. 6 6 a p p o in tm e n ts and had significant medical expenses. She believes this because Gaines Slade m a d e comments about there being too many medical issues and too many personal problems w ith Sanford's family. Further, Sanford testified that Gaines Slade approached her in the sto re one day and complained about the fact that she received social security disability p a ym e n ts for that child. Gaines Slade told her she was "enabling this child." He compared h e r child to Mike Chesser ("Chesser"), a store employee who had some sort of mental d is a b ilitie s or problems. Gaines Slade stated that he had "taken care" of Chesser and that C h e ss e r had never drawn a penny (presumably, of government benefits). He said that he had p u sh e d Chesser to be independent and self-sufficient, but that she was just enabling her child a n d using his "tax-paying dollars" to do it. Sanford was very embarrassed and humiliated b y Gaines Slade's comments to her especially because customers were able to hear what he s a id . Sanford Is Promoted to Manager In mid-September of 2007, Gaines Slade approached Sanford about becoming the m a n a g er for the Pintlala store. She accepted this promotion, but conditioned her acceptance o n Gaines Slade's promise that if he was displeased with her performance as manager that s h e have a chance to be demoted to being a cashier again rather than fired outright. At some p o in t in September or October of 2007, Sanford threatened to resign. To entice her to stay, S la d e 's Stores began to pay her a salary rather than paying her by the hour. This constituted a better offer than Sanford had elsewhere and so she stayed. 7 P ro b lem s During Sanford's Employment Sanford admits that during her employment at the Pintlala store, she was late to work o n more than one occasion. She cannot recall on how many occasions she was late to work. A d d itio n a lly, Sanford admits that she failed to remember to clock in and out of work properly u sin g the time clock during her employment and that she knew it was unacceptable to fail to p ro p e rly clock in and out. She acknowledges that she and the other employees received a m e m o on this subject in April of 2007. Other employees also had problems with tardiness to work and failure to properly use the time clock. Sanford complains that during her employment she was sometimes not scheduled to w o rk as much as she would have liked and at other times she was scheduled to work when s h e would have preferred not to do so. She felt that Chesser was given preferential treatment e s p e c ia lly when it came to matters of scheduling. Shortly after Sanford became manager of the Pintlala store, Chesser confronted her b e c a u se he needed to get off work in order to attend school. Sanford was not scheduled to w o rk on this particular day because her handicapped child had a doctor's appointment. The e m p lo ye e who was supposed to relieve Chesser failed to show up for work. Chesser came to Sanford's house and insisted that she come to the store immediately to relieve him because sh e was the manager and the employee scheduled to work had not come to work. Sanford re m in d e d Chesser that she had the day off because of her child's medical appointment, but 8 C h esse r continued to insist that she come to the store so he could leave for school. Sanford f in a lly relented and told him she would come to relieve him if he would give her thirty m in u tes to try to arrange child care. Chesser cursed at her, told her to forget it, and left. S a n f o rd called Chesser to say she had arranged for childcare and would come in, but he re f u se d her offer. The next day, Gaines Slade told Sanford that she should have come in to w o r k for Chesser. Sanford replied that her child's needs were important and that Chesser k n e w she was scheduled to be off because of her child's appointment. Gaines Slade c o m p l a in e d that Sanford was having to spend too much time with her child's problems. G a in e s Slade was angry with her and told her that it was very important that nothing in te rf e re d with Mike's schooling. Gaines Slade fired the employee who had caused the p r o b l e m by failing to show up as scheduled for work. (" H o p k in s " ). Sanford worked with Hopkins to train her. Termination of Sanford's Employment H o p k in s called Gaines Slade to report that she had witnessed Sanford taking items of f o o d from the store without paying for them; that she suspected Sanford had taken money w h ile the registers at the store were down for a system conversion and sales were being tra c k ed manually; and that Sanford and her boyfriend had been in a screaming and cursing arg u m en t which escalated into a physical fight in the store's parking lot during Sanford's He then hired Ann Hopkins 9 s h if t.7 According to Hopkins' account to Gaines Slade, these events occurred during the w e e k of October 22, 2007, when the Slades were away from town. Hopkins reported the e v e n ts to Gaines Slade on October 29, 2007. O n October 30, 2007, Slade's Stores terminated Sanford's employment. Gaines Slade m a d e the decision to terminate Sanford's employment, and he communicated that decision to Sanford himself. Sanford repeatedly asked why she was being fired. Gaines Slade re p e ate d ly refused to tell her. After leaving, Sanford telephoned Ina Slade to ask why she h a d been fired, but Ina Slade said that she did not know what had happened or why Gaines S la d e was terminating Sanford's employment. During the course of this litigation, Gaines S l a d e attributed his decision to terminate Sanford's employment to: (1) the conduct that H o p k in s had reported involving theft from the store and the fight in the parking lot during S a n f o rd 's shift; and (2) Sanford's prior problems regarding failure to open the store on time, f a ilu re to clock in for her shift, complaints from customers about Sanford, and comments he h e a rd Sanford make to a customer disparaging the store's prices. Gaines Slade denied that the decision to terminate Sanford's employment had anything to do with her child's d is a b ility. After losing her job, Sanford sought unemployment compensation. Slade's Stores f o u g h t the award of benefits to Sanford, but eventually she received them. In January of Sanford denies that she did any of the things that Hopkins told Gaines Slade she had d o n e . Sanford's boyfriend also denies that he was involved in an argument with Sanford at th e Pintlala store as Hopkins has described. 10 7 2 0 0 8 , Sanford filed a Charge of Discrimination with the Equal Employment Opportunity C o m m is s io n in which she claimed to have been discriminated against on the basis of her c h ild 's disability. D IS C U S S IO N A . ADA Retaliation Claim In her Complaint, Sanford alleges that Slade's Stores retaliated against her for p u rs u in g her rights under the ADA following the termination of her employment by i n t erf e rin g with her right to qualify for and receive benefits earned and due her. Slade's S to r e s seeks judgment as a matter of law on this ADA retaliation claim on several grounds, in c lu d in g that Sanford's failure to exhaust her administrative remedies with respect to this c la im in a timely fashion presents a legal bar to her litigating this claim now. In response, S a n f o r d concedes that she did not exhaust her administrative remedies, as the law requires, w ith respect to her ADA retaliation claim. Further, she acknowledges that the claim is due to be dismissed. The Court agrees that Sanford's ADA retaliation claims are legally barred a n d Slade's Stores is entitled to judgment as a matter of law on those claims. B. Association Discrimination Claim Relating to Termination of Employment A s the Eleventh Circuit Court of Appeals has explained, [t]he ADA mandates that covered employers shall not " d i sc r im in a t e against a qualified individual with a disability b e c au s e of the disability of such individual in regard to job a p p lic a tio n procedures, the hiring, advancement, or discharge of e m p l o ye e s, employee compensation, job training, and other te rm s , conditions, and privileges of employment." 42 U.S.C. 11 1 2 1 1 2 (a ). Under the Act, the term "discriminate" is defined to in c lu d e , among other factors, "excluding or otherwise denying e q u a l jobs or benefits to a qualified individual because of the k n o w n disability of an individual with whom the qualified in d iv id u a l is known to have a relationship or association." 42 U .S .C . 12112(b)(4). Wascura v. City of South Miami, 257 F.3d 1238, 1242 (11th Cir. 2001). "A family re la tio n s h ip is the paradigmatic example of a relationship under the association provision of th e ADA." Hartog v. Wasatch Academy, 129 F.3d 1076, 1082 (10th Cir. 1997) (applying a s s o c ia tio n provision of the ADA to claims of an employee whose son suffered from a m e n tal disability); Rocky v. Columbia Lawnwood Reg'l Med. Ctr., 54 F. Supp. 2d 1159, 1164 ( S .D . Fla. 1999) (applying association provision of the ADA to claims of an employee whose so n had a disability); see also 29 C.F.R. 1630.8 (2009). As in other types of discrimination cases, a plaintiff proceeding with an association d iscrim inatio n claim under the ADA may rely on direct or circumstantial evidence. Sanford o f f e r s no direct evidence of discrimination. Accordingly, this Court will analyze this case a s one based upon circumstantial evidence. See, e.g., Wascura, 257 F.3d at 1242 (applying T itle VII burden shifting analysis 8 to case brought pursuant to the ADA based on The United States Supreme Court has set forth a burden-shifting scheme for d is c rim in a to ry-tre a tm e n t cases. Under this scheme, a plaintiff must first establish a prima fa c ie case of discrimination. The burden then shirts to the employer to articulate a legitimate, n o n d isc rim in a to ry reason for the challenged employment action. If the employer meets this b u rd e n , the presumption of intentional discrimination disappears, but the plaintiff can still p rov e disparate treatment, by offering evidence demonstrating that the employer's e x p la n a tio n is pretextual. See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 49 n.3 (2003). 12 8 c irc u m sta n tial rather than direct evidence); Doe v. Dekalb County Sch. Dist., 145 F.3d 1441 (1 1 th Cir. 1998) (applying McDonnell Douglas burden shifting framework in an ADA case); H a r to g , 129 F.3d at 1085. To establish a prima facie case of association disability d i sc r im in a t io n under either statute using circumstantial evidence, a plaintiff must establish (1 ) that she was subjected to an adverse employment action; (2) s h e was qualified for the job at that time; (3) that her employer k n e w at that time that she had a relative with a disability; and (4) th a t "the adverse employment action occurred under c irc u m s ta n c es which raised a reasonable inference that the d is a b ility of the relative was a determining factor in [the e m p l o ye r's ] decision." Wascura, 257 F.3d at 1242 (quoting Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d 1220, 1 2 2 6 (11th Cir. 1999)). Slade's Stores contends that it is entitled to summary judgment on Sanford's ADA d iscrim inatio n claim arising out of the termination of her employment because Sanford c a n n o t establish one or more of the required elements of the prima facie case. Slade's Stores c o n te n d s that Sanford was not qualified for her job at the time of her dismissal. Specifically, S lad e 's Stores contends that Sanford's failure to meet its time and attendance requirements d u rin g her employment compels the conclusion that she was not "qualified" for her position w ith i n the meaning of the ADA. Sanford counters that she was qualified because she s u c c es s f u lly performed the requirements of her position with Slade's Stores and even earned 13 a promotion shortly before the termination of her employment.9 Thus, the contentions of the p a rtie s require the Court to more fully examine the meaning of "qualified" within the context o f an ADA association discrimination claim. The Eleventh Circuit Court of Appeals has followed a line of cases which holds that a non-disabled employee who violates a neutral employer policy concerning attendance or ta rd in e ss may be dismissed even if the reason for the absence or tardiness is to care for the e m p lo ye e 's disabled associate because the failure of the employee to comply with the a tte n d a n ce requirements of her job renders her not qualified for purposes of establishing a p rim a facie case of association discrimination. See, e.g., Hilburn v. Murata Electronics N. A m ., Inc., 181 F.3d 1220, 1230-31 (11th Cir. 1999) (favorably invoking the reasoning of H a r t o g v. Wasatch Academy, 129 F.3d 1076 (10th Cir. 1997) and Tyndall v. Nat'l Educ. C tr s ., Inc., 31 F.3d 209 (4th Cir. 1994). "[T]he associational provision of the ADA does not re q u ire employers to make any `reasonable accommodations' for the disabilities of relatives o r associates of a nondisabled employee." Rocky, 54 F. Supp. 2d at 1165 (collecting cases). W h e n the legislative history for the association provision of the ADA is examined, it is clear th a t the Congress intended to "prevent an employer from making an unfounded assumption th a t an employee who has an association with a disabled person will miss work in order to c a re for that person," but allows that an employee who has an association with a disabled Importantly, Sanford neither offers case law supporting her contention that this type o f job performance satisfies the "qualifed" element of the prima facie case, nor addresses the c a s e law on which Slade's Stores relies for this contention. 14 9 p e rs o n to be dismissed for violating a neutral policy concerning attendance or tardiness even if the reason for the absence or tardiness is to care for the disabled associate. Id. (citing H.R. R e p . No. 101-485, pt.2, at 61-62). Following Hilburn, district courts have granted summary ju d g m e n t on ADA association claims in favor of employers who fired employees who failed to regularly and punctually attend work even if the reasons for the absences or tardiness were th e need to care for a disabled associate. See, Pittman v. Moseley, Warren, Prichard & P a r r is h , 3:01cv279-J-21TJC, 2002 WL 2007880, at * 4 (M.D. Fla. July 29, 2002) (Holding th a t "[a]n individual is not qualified for his job if he is unable to meet the attendance re q u ire m e n ts of the job" and granting employer summary judgment on ADA association d iscrim inatio n claim); Rocky, 54 F. Supp. 2d at 1166 (finding that employee failed to e sta b lis h first element of prima facie case of association discrimination under the ADA b e c au s e employee was repeatedly absent or tardy). Thus, while cases brought under other e m p lo ym e n t discrimination provisions impart quite a different meaning to the requirement th a t an employee be "qualified," it is clear that for the type of claim Sanford makes she must sh o w that she was qualified for her position by establishing that she regularly and punctually a tte n d e d work. While Sanford denies ever being late for work while she was assigned to the Hope H u ll location, she admits that she was late to work after she was assigned to the Pintlala lo c a tio n . She further admits that she was late to work more than once, but could not put a n u m b e r on how many times. Slade's Stores submitted into evidence the time cards it 15 r e q u ir e d Sanford and its other employees to use to track their time using a time clock. S a n f o rd also admits that during her employment she failed to remember to clock in and out p ro p e rly using the time clock and that she knew it was required that she do so. Because Sanford cannot remember how many times she was late, the Court has re v ie w e d Sanford's time cards, as submitted by Slade's Stores.1 0 It is clear that on eighteen o c c as io n s Sanford failed to clock in at the beginning of her shift.1 1 Twice she attributed that f a ilu re to the absence of the time card when she arrived at work. She also failed to clock out p r o p e r ly on two occasions. With respect to the timeliness of Sanford's arrival for her shifts, th e Court is somewhat hampered by the failure of Slade's Stores to provide any record of the tim e s Sanford was expected to be at work on each of the days she was scheduled. N e v e rth e les s, the Court has been able to identify numerous days when Sanford was late 1 2 to w o rk : June 5 (6:06 a.m.), June 11 (6:02 a.m.), June 12 (5:58 a.m.), June 20 (6:12 a.m.), June 2 2 (5:55), June 29 (5:53 a.m.), July 3 (6:00 a.m.), July 10 (6:01 a.m.), July 14 (5:57 a.m.), Ju ly 17 (6:15 a.m. per Sanford's handwritten note), August 4 (6:30 a.m. per Sanford's h a n d w r itte n note), August 7 (5:47 a.m.), August 10 (5:53 a.m.), August 19 (8:04), August 3 1 (5:46 a.m.), September 4 (5:59 a.m), September 7 (6:19 a.m.), September 15 (6:06 a.m.), Sanford has made no issue about the accuracy of any of the time cards included in S la d e 's Stores evidentiary submission. An employee's failure to properly clock in makes it difficult, if not impossible, for a n employer to document whether the employee actually arrived for work on time. All dates listed are dates when Sanford was assigned to open the store at 6:00 a.m. a n d clocked in or arrived after 5:45 a.m. 16 12 11 10 S e p te m b e r 21 (6:49 a.m.), September 25 (6:27 a.m.), September 26 (5:48 a.m.), October 3, (5 :5 8 a.m.), October 8 (5:53 a.m.), October 9 (5:55 a.m.), October 12 (5:51 a.m.), October 1 3 (6:21 a.m.), October 17 (5:51 a.m.), October 19 (6:03 a.m.), October 20 (5:48 a.m.), O ctob er 29 (6:10 a.m.), and October 30 (5:54 a.m.).1 3 Many of these shifts when Sanford w a s late, she was assigned to open the store and her tardiness meant that the store would not b e opened as scheduled. According to Gaines Slade's testimony, people were telling him th a t the store was not open as scheduled at six o'clock and this made him suspicious about th e days when Sanford reported that she had arrived at work on time, but had forgotten to c lo c k in. When Sanford was assigned to open the store at 6:00 a.m., Gaines Slade expected h e r to be present in the store at least fifteen or twenty minutes before 6:00 a.m. to get the m o n e y drawers set up and the coffee made before the store opened. No reasonable trier of fact could view the foregoing evidence and find that Sanford r e g u la rly and punctually attended work from early June of 2007 through the date of the te rm in a tio n of her employment in late October of 2007. Under the applicable case law, the C o u rt is compelled to find that as of October 30, 2007, Sanford was not qualified for her The Court notes that even Sanford seemed to understand that when she was a ss ig n e d to open the store she needed to arrive before the time at which the store was to o p en . On a number of days, Sanford arrived before 5:45 a.m. Moreover, even if the Court o n ly counts Sanford as late on days when she clocked in after 6:00 a.m. when the store was sch ed u led to open at that time, there are still approximately fourteen days on which Sanford c lo c k e d in at 6:00 a.m. or later. According to her time cards, Sanford worked in the Pintlala s to r e from mid-May of 2007, until the end of October of 2007, usually working five days a w e e k and often working at times other than the opening shift. Consequently, her tardiness is undisputably significant. 17 13 p o s itio n within the meaning of the association provision of the ADA. For this reason, the C o u rt agrees that Sanford has failed to make out a required element of her prima facie case o f association discrimination under the ADA with respect to the decision to terminate her e m p lo ym e n t. Because Sanford has failed to present evidence in support of some element of h e r case on which she bears the ultimate burden of proof, Slade's Stores is entitled to ju d g m e n t as a matter of law on this claim.14 C . Association Discrimination Claim Relating to Denial of Insurance Benefit S a n f o rd 's sole remaining claim is that Slade's Stores denied her health insurance d u rin g her employment because of her association with her disabled child. Slade's Stores s e e k s summary judgment on this claim as well, but it is not entirely clear which of the e le m e n ts of the prima facie case it contends Sanford cannot establish. Clearly, the denial of such a benefit was intended to be within the scope of the ADA a ss o c iatio n discrimination claims available to employees. "It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified i n d iv id u a l because of the known disability of an individual with whom the qualified in d iv id u a l is known to have a family, business, social or other relationship or association." 2 9 C.F.R. 1630.8 (2009) (emphasis added). In fact, this Court has said that the type of Because of this finding, the Court need not and does not reach the other issues ra is e d concerning other elements of the prima facie case or whether the proffered legitimate n o n -d is c rim in a to ry reasons for the termination of Sanford's employment were a pretext for d is c ri m in a tio n . 18 14 b e n e f its that the "ADA intended to protect from discrimination are privileges such as health a n d life insurance benefits, retirement funds, profit-sharing, paid holidays, vacation, and sick le a v e." Atkinson v. Wiley Sanders Truck Lines, Inc., 45 F. Supp. 2d 1288, 1293 (M.D. Ala. 1 9 9 8 ) (emphasis added). The Interpretive Guidance on Title I of the ADA specifically e la b o ra te s on this as well providing: " [ t]h is provision also applies to other benefits and privileges of e m p lo ym e n t. For example, an employer that provides health in s u ra n c e benefits to its employees for their dependents may not r e d u c e the level of those benefits to an employee simply because th a t employee has a dependent with a disability. This is true e v e n if the provision of such benefits would result in increased h ea lth insurance costs for the employer. 2 9 C.F.R. app. 1630.8. Despite, or perhaps because of, the clear protection provided by the A D A against this type of discrimination, this Court has had significant difficulty locating d e c isio n s involving these kinds of claims generally. The Court has only been able to locate o n e case which involved a claim that an employee was denied equal access to health in s u ra n c e coverage because of her family member's disability and associated medical ex p en se s . See Torres-Soto v. ARB Recycling, Inc., No. Civ. 04-1346(HL), 2005 WL 1 6 4 0 8 7 2 at *1 (D. Puerto Rico July 8, 2005). That case sets forth the following four element p r im a facie case for association discrimination: (1) that the employee was qualified for the jo b at the time of the adverse employment action; (2) that she suffered an adverse e m p lo ym e n t action at the hands of the employer; (3) that the employer knew that the e m p lo ye e had a relative or associate with a disability; and (4) that the adverse employment 19 a c tio n at issue occurred under circumstances raising a reasonable inference that the a s s o c ia te 's disability was a determining factor in the employer's decision. Id. at *6. In that c a se , however, the Court was not called upon to address whether the employee was " q u a lif ie d " for purposes of the prima facie case because the employer did not argue that the e m p lo ye e could not establish that element. Id. at *6. W ith respect to whether Sanford was "qualified" at the time she was denied the o p p o rtu n ity to apply for the health insurance benefits Slade's Stores provided, Slade's Stores m a y be again arguing that her chronic problems with tardiness rendered her unqualified for p u rp o s e s of establishing a prima facie case. When the evidence on this claim is viewed in th e light most favorable to Sanford, it establishes that Slade's Stores failed to disclose the e x is te n c e of its health insurance plan, lied to Sanford when she later asked about it, and f a iled to provide her with the same coverage that she and other employees became eligible to receive after ninety days of employment. This denial at the ninety day mark seems to be th e pertinent time to examine Sanford's qualifications. Even if the definition of qualified for p u rp o s e s of the prima facie case is the same as other association discrimination claims under th e ADA, Sanford would have been qualified at that point in that she would not have had the ex ce s s iv e number of instances of tardiness accumulated at that date.1 5 What seems more Evaluating Sanford's "qualification" at the end of her term of employment makes n o logical sense here as that was not when she was denied the benefit. Additionally, the C o u rt is not entirely persuaded that Sanford should be required to show that she was qualified b y virtue of her punctual and reliable attendance when the issue is not continuing to be e m p lo ye d in the position, but rather receiving access to a benefit. 20 15 g e rm a n e is whether Sanford was qualified for the benefit, here health insurance, at the time s h e was denied equal access to it. If attendance and punctuality were not specified p rereq u isites for all plan participants, they ought not to be part of what makes Sanford q u a lifie d to participate in the health insurance plan. It is well-settled that "[t]he prima facie c a se method established in McDonnell Douglas was `never intended to be rigid, mechanized, o r ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of c o m m o n experience as it bears on the critical question of discrimination.' " U.S. Postal Serv. B d . of Governors v. Aikens, 460 U.S. 711, 715 (1983) (quoting Furnco Constr. Corp. v. W a t e rs , 438 U.S. 567, 577 (1978)). To be at all logical, the term "qualified" individual w ith in the context of a denial of a benefit must be tied back to the that which was denied, n a m e ly, the decision to deny benefits. The seminal inquiry there should be whether the e m p lo ye e is "qualified" for the job benefit denied. The Court is satisfied that when the e v id e n c e is viewed in the light most favorable to Sanford, she has established that she was q u a lif ie d to be allowed to participate in the health insurance plan after ninety days of e m p lo ym e n t with Slade's Stores. Relying on facts which Sanford's sworn testimony puts into dispute, Slade's Stores c o n te n d s that Sanford suffered no adverse employment action with respect to a benefit during h e r employment. Slade's Stores argues that Sanford did not seek company health insurance. T h is ignore's Sanford's testimony that she had asked Gaines Slade about health insurance a n d told it was not available. Furthermore, Slade's Stores offers no evidence that it ever 21 in f o rm e d Sanford about the existence of the insurance or provided her with a copy of the h a n d b o o k which described it. Nevertheless, Slade's Stores faults Sanford for not asking f u r th e r questions about it after the company owner had denied its existence simply because a coworker mentioned its existence. The Court finds sufficient evidentiary support for this e le m e n t of the prima facie case. W h e n the evidence is viewed in the light most favorable to Sanford, it is also clear th a t she has adduced sufficient evidence to support the third element of the prima facie case. S a n f o rd told both Slade Jr. and Gaines Slade at her initial interview that her son had a d is a b il ity. Even Gaines Slade's own testimony belies that he was aware that her son was d is a b le d . Moreover, Sanford has established that she had requested and received time off w o rk to take her child to medical or school counseling appointment for his problems during h e r employment with Slade's Stores and had disclosed the reason for needing the time off w h en she sought it. Finally, based on the evidence before it, the Court finds that a jury q u estio n exists as to whether the circumstances raise a reasonable inference that Sanford's s o n 's disability was a determining factor in the employer's decision to deny her the o p p o rtu n ity to participate in the health insurance available. Having found that Sanford has established a prima facie case of association d isc rim in a tio n under the ADA with respect to the denial of access to the company health in su ra n c e plan, the Court turns to Slade's Stores' articulated reason for its actions with re sp e c t to health insurance for Sanford and her family. Slade's Stores' proffered reason is 22 th a t it did not provide health insurance to Sanford and her sons because Sanford never asked ab o u t it or applied for it. As previously outlined, the material facts relating to this point are d is p u te d . These factual disputes relating to the health insurance issue create a jury question a s to whether Slade's Stores' proffered legitimate, non-discriminatory reason for failing to p r o v i d e Sanford with the opportunity to participate in its health insurance benefit was a p re te x t for discrimination against Sanford on the basis of her association with her disabled s o n . For this reason, the motion for summary judgment is due to be DENIED with respect to this claim. CONCLUSION F o r the foregoing reasons, it is hereby ORDERED as follows: 1 . Defendant Slade's Country Stores, Inc.'s Motion for Summary Judgment (Doc. # 2 8 ) is GRANTED in PART and DENIED in PART. 2. It is GRANTED with respect to Sanford's retaliation claim and her association d is c rim in a tio n claim relating to the termination of her employment. 3. Having found that Defendant is entitled to judgment as a matter of law as to S a n f o rd 's retaliation claim and her association discrimination claim relating to the te rm in a tio n of her employment, those claims are DISMISSED WITH PREJUDICE. 4. The motion is DENIED with respect to Sanford's ADA association discrimination c laim relating to the denial of equal opportunity to participate in the company health in s u ra n c e plan. 23 D O N E this the 7 th day of April, 2010. /s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE 24

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