Nelson v. PMTD Restaurants, LLC
MEMORANDUM OPINION AND ORDER as follows: 1) Dft's 40 Motion to Strike is DENIED; 2) Plf's 43 Objection to Dft's Supplemental Evidentiary Submission is OVERRULED; and 3) Dft's 29 Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. It is GRANTED to the extent is requests dismissal of Plf's failure-to-accommodate claim under the ADA, as set forth in Count One of the complaint, and that claim is DISMISSED WITH PREJUDICE. However, the motion is DENIED to the extent it requests dismissal of Plf's disparate treatment claim under the ADA, as set forth in Count One of the complaint, based on her removal from the cashier position and Plf's termination. Signed by Honorable Judge Mark E. Fuller on 8/8/2013. (Attachments: # 1 Civil Appeals Checklist)(wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
PMTD RESTAURANTS, LLC d/b/a
KENTUCKY FRIED CHICKEN,
CASE NO. 3:12-cv-369-MEF
(WO – Do Not Publish)
MEMORANDUM OPINION AND ORDER
I. I NTRODUCTION
Plaintiff Candice Nelson (“Nelson” or “Plaintiff”), who suffers from cerebral palsy,
is suing her former employer, Defendant PMTD 1 Restaurants, LLC (“PMTD” or
“Defendant”), a Kentucky Fried Chicken franchisee, seeking relief under the Americans with
Disabilities Act, as amended (the “ADA”), for alleged disability discrimination. Before the
Court are PMTD’s Motion for Summary Judgment (Doc. #29) and Reply Brief in Support
of Motion for Summary Judgment which the Court construes to contain a Motion to Strike
(Doc. #40) and Plaintiff’s Objection to Defendant’s Supplemental Evidentiary Submission
(Doc. #43). After careful consideration of the arguments and evidentiary submissions of the
parties and the relevant law, the Court finds that Plaintiff’s Objection is due to be
OVERRULED, PMTD’s Motion to Strike is due to be DENIED, and PMTD’s Motion for
PMTD stands for “People Make the Difference.”
Summary Judgment is due to be GRANTED IN PART and DENIED IN PART.
II. J URISDICTION AND V ENUE
This Court has subject-matter jurisdiction over Nelson’s claims under 28 U.S.C. §
1331 (federal question). The parties do not claim that the Court lacks personal jurisdiction
over them, nor do they dispute that venue is proper under 28 U.S.C. § 1391(b), and the Court
finds adequate allegations supporting both.
III. L EGAL S TANDARD
A motion for summary judgment looks to “pierce the pleadings and to assess the proof
in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). A court should grant summary judgment
when the pleadings and supporting materials show that no disputed issue exists as to any
material fact and that the moving party deserves judgment as a matter of law. Fed. R. Civ.
P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for
summary judgment “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying” the relevant documents that “it believes demonstrate
the absence of a [disputed] issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). To shoulder this burden, the moving party can present evidence to this effect.
Id. at 322–23. Or it can show that the non-moving party has failed to present evidence in
support of some element of its case on which it ultimately bears the burden of proof. Id.
If the moving party meets its burden, the non-movant must then designate, by
affidavits, depositions, admissions, and answers to interrogatories, specific facts showing the
existence of a genuine issue for trial. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593–94 (11th Cir. 1995). A genuine issue of material fact exists when the non-moving party
produces evidence that would allow a reasonable fact-finder to return a verdict in his or her
favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001). Thus,
summary judgment requires the non-moving party to “do more than simply show that there
is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. Indeed,
a plaintiff must present evidence demonstrating that he or she can establish the basic
elements of a claim, Celotex, 477 U.S. at 322, because “conclusory allegations without
specific supporting facts have no probative value” at the summary judgment stage. Evers v.
Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985).
A court ruling on a motion for summary judgment must believe the non-movant’s
evidence. Anderson, 477 U.S. at 255. It also must draw all justifiable inferences from the
evidence in the non-moving party’s favor. Id. After the non-moving party has responded to
the motion, the court must grant summary judgment if there exists no disputed issue of
material fact and the moving party deserves judgment as a matter of law. See Fed. R. Civ.
IV. T HE R ELEVANT F ACTS
Nelson was born with cerebral palsy (“CP”), which has weakened her left hand and
caused it to curl slightly inward; Nelson’s CP has also caused her to suffer from seizures.
In August 2009, Nelson had brain surgery to reduce her CP-related seizures. That surgery
left her with some short-term memory loss and sensitive hearing.
Positions at Valley KFC
In March 2011, Nelson applied for a job online with the KFC in Valley, Alabama,
which PMTD operates. Labor at Valley KFC is divided into four “crew member” positions:
cashier, front packer, back packer, and cook. On every shift, there are two cashiers, two
packers, and a cook scheduled to work. One of the cashiers covers the front cash register and
takes the orders of the dine-in customers, and the other cashier covers the drive-through
wearing a headset to hear the customers’ orders. The front packer loads the dine-in
customers’ food into boxes, and the back packer boxes up the food for the drive-through
customers’ orders. The back packer has to wear a headset to hear the customers’ orders and
must have the order packed ahead of time. Another job duty of packers is “prep,” which
involves making the mashed potatoes and then batching the side items—mashed potatoes,
green beans, cole slaw, etc.—into cups, placing plastic lids on the cups, and putting the
cupped side items into a warming box. The prep work is typically done before the lunch and
Nelson is Hired to Work as a Cashier at Valley KFC
In April 2011, John Teal (“Teal”), the general manager of Valley KFC, called Nelson
into the store to interview for a vacant part-time cashier position. Teal hired Nelson on April
22, 2011, to work a 90-day probationary period in this position. Nelson was to work a
maximum of twenty hours a week, but she was not guaranteed a minimum number of work
hours per week. During the interview, Teal did not give Nelson a written job description of
the cashier position (because no such job description existed) or any other information about
the job, aside from describing it as “working as a team.” Teal did not notice Nelson’s
weakened left hand during her interview. Nelson started training for the cashier position at
Valley KFC on April 26, 2011.
Nelson’s First Week of Work
On her first day of work at Valley KFC, Teal scheduled Nelson for a two-hour
training session with him packing boxes for the drive-through orders, or “back packing.” 2
During that training session, Teal observed Nelson having trouble closing the boxes of food
because of her weakened left hand. Teal observed Nelson eventually get frustrated that day
and walk away from the boxes.
On April 29, 2011, during her second shift at Valley KFC, Nelson began training
during lunchtime on the front cash register with front cashier and management team member,
Bubba Daniel (“Daniel”). In his deposition, Teal did not recall observing Nelson’s work on
the cash register that day, and he also did not recall anyone communicating to him about how
Nelson performed her cashier job that day. It is unclear from the record how many shifts
Teal trained all cashiers on packing first, so they could learn what food goes into
Nelson spent at the cash register, but it is undisputed that she did not receive any reprimands
or discipline while she worked as a cashier.
At some point during Nelson’s first week of training, she and Teal had a discussion
in which Teal told Nelson that he “didn’t think she was going to be able to make it” in a job
at Valley KFC. (Teal Dep. 65:14–17, Doc. #31-1.) Teal also asked Nelson what was wrong
with her hand, at which time Nelson informed Teal of the brain surgery she underwent for
her seizures. She explained that her hearing sensitivity also made it difficult for her to wear
the headset, which was necessary for drive-through cashiers and back packers. (Teal Dep.
65–68, Doc. #31-1.) By her second week of work, which began on May 4, 2011, Teal had
moved Nelson to the back packer position.
Nelson’s Work as a Packer
Nelson worked as a packer doing packing and prep work the rest of her time at Valley
KFC. Although Nelson continued to be slower than her co-workers at closing boxes and
placing lids on the side items, and she sometimes needed help from her co-workers to place
lids on the side items, Nelson’s pace in performing manual tasks improved over the next
three weeks. Nelson never received any written reprimands, discipline, or corrections from
Teal or other members of the management while she worked as a packer (or cashier), but it
is undisputed that a few of her coworkers made verbal complaints to Teal about Nelson’s
slow speed in packing orders.
On May 22, 2011, within a month of Nelson joining the team at Valley KFC, Teal
terminated Nelson. That same day, Teal sent a termination report to Charter HR, the
professional employer organization that handles PMTD’s payroll. After Teal sent the
termination report, James Gillespie (“Gillespie”), Teal’s supervisor and a Director of
Operations at PMTD, asked Teal to send him documentation about the specific issues that
led to Nelson’s termination. Teal responded to Gillespie with the following email:
Here is the down and dirty on Candice
1-She is hearing impaired which made it impossible for her to
effectively wear the headset and work drive through or even pack as the
headset gave her a headache and then she could not hear anything else.
2-She has no short term memory (caused from a surgery that she had),
this makes hard [sic] for her to remember prices and even where keys are on
register making it difficult to use her as a cashier. This also made it so that
management has to write her tasks for the day and does not have the ability to
remember tasks given to her verbally.
3-She has only about 50% to 60% use of her left hand that caused her
to not be able to cup side items in a quick, fast and efficient manner. It also
limited her to only being able to lift about 10 pounds without assistance. I was
not informed of any of the limitations during the interview and hiring process.
(Pl.’s Ex. 1, Doc. #35-1.)
More than three months after her termination, Nelson filed a Charge of Discrimination
with the Equal Employment Opportunity Commission (“EEOC”), alleging that she was
treated differently from other employees at Valley KFC because of her disability.
Specifically, Nelson alleged that her hours were reduced, that she received hostile treatment
from Teal in front of other employees, and that Teal would not allow her to work the cash
register because of her disability. (EEOC Charge, Doc. #1-1.)
V. D ISCUSSION
Motion to Strike
In its summary judgment reply brief, PMTD moves the Court to strike a declaration
given by Nelson a little more than two months after her termination, which she relies on
heavily in her response brief. (Def.’s Ex. D, Doc. #31-2, at 59.) A district court may
disregard a party’s affidavit as a “sham affidavit” in ruling on a summary judgment motion
only when the party “has given clear answers to unambiguous questions which negate the
existence of any genuine issue of material fact” and the party “thereafter [attempts to] create
such an issue with an affidavit that merely contradicts, without explanation, previously given
clear testimony.” Van T. Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir.
1984). In applying this rule, courts must distinguish between “discrepancies which create
transparent shams and discrepancies which create issues of credibility or go to the weight of
the evidence.” Tippens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986).
challenged affidavit or declaration merely creates witness credibility or weight-of-theevidence issues, a court must reserve these questions for the trier of fact. Id. at 954.
Although PMTD was the one to submit Nelson’s declaration 3 as an attachment to
Nelson’s deposition testimony, which was submitted in support of PMTD’s motion for
summary judgment, PMTD now argues that the declaration should be stricken from the
record because it directly contradicts Nelson’s deposition testimony, and therefore, is a
PMTD submitted Nelson’s declaration as an attachment to her deposition testimony, which was
submitted with its evidentiary submission in support of summary judgment.
prohibited “sham” declaration. Nelson responds that her declaration, which was created two
months after her termination and more than a year before her deposition, and which was
made an exhibit to Nelson’s deposition and provided to PMTD before her deposition, is not
the kind of “sham” evidence contemplated by the Court in Van T. Junkins and its progeny.
The Court agrees with Nelson. The purpose of the “sham affidavit” rule is to prevent
a party who has been examined at length in deposition from diminishing “the utility of
summary judgment as a procedure for screening sham issues of fact” by merely submitting
an affidavit that contradicts her prior testimony. See Kennett-Murray Corp. v. Bone, 622
F.2d 887, 893 (5th Cir. 1980) (quoting Perma Res. & Dev. Co. v. Singer Co., 410 F.2d 572,
578 (2d Cir. 1969)) (internal quotation marks omitted);4 Tippens, 805 F.2d at 953 (quoting
the same language from Perma Research). The challenged declaration in this case was
created soon after Nelson was terminated from her job at Valley KFC and more than a year
before PMTD took her deposition. Nelson provided PMTD with the declaration prior to her
deposition, and indeed, Nelson made it an exhibit to her deposition. PMTD, however, chose
not to test the veracity of Nelson’s declaration during her deposition. Moreover, even if
portions of Nelson’s declaration conflict with portions of her deposition testimony, the Court
finds that any such conflicts raise issues regarding Nelson’s credibility as a witness and the
weight given to her declaration, which are issues the Court must reserve for the jury. See
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down
prior to the close of business on September 30, 1981.
Tippens, 805 F.2d at 954. Therefore, PMTD’s Motion to Strike (Doc. #40) is due to be
Motion for Summary Judgment
The ADA prohibits an employer from discriminating against a “qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions,
and privileges of employment.”
42 U.S.C. § 12112(a).
An employer unlawfully
discriminates against a qualified individual with a disability by taking an adverse
employment action against her because of the disability, or by failing to provide “reasonable
accommodations” for the disability, unless doing so would impose an undue hardship on the
employer. 42 U.S.C. § 12112(b)(5)(A); 29 C.F.R. § 1630.9(a); Morisky v. Broward Cnty.,
80 F.3d 445, 447 (11th Cir. 1996).
An ADA plaintiff may prove disability discrimination through either direct or
circumstantial evidence. See Doe v. Dekalb Cnty. Sch. Dist., 145 F.3d 1441, 1451 (11th Cir.
1998). Direct evidence is “evidence which, if believed, proves the existence of fact in issue
without inference or presumption.” Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n.6 (11th
Cir. 1987) (citing Black’s Law Dictionary 413 (5th ed. 1979)). If a plaintiff produces direct
evidence of discrimination, and the plaintiff can show that discrimination was a substantial
motive for an employer’s adverse action, then the burden of persuasion shifts to the
employer. Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1394 n.8 (11th Cir.
1997). A finding that direct evidence of discrimination exists is, standing alone, normally
sufficient to defeat a motion for summary judgment. See Jones v. Bessemer Carraway Med.
Ctr., 151 F.3d 1321, 1323 n.11 (11th Cir. 1998) (per curiam).
However, if the plaintiff presents circumstantial evidence of discriminatory treatment,
different burdens of production and proof apply. In circumstantial evidence cases, a plaintiff
must first make out a prima facie case, then the burden shifts to the defendant to produce
legitimate, non-discriminatory reasons for the adverse employment action, and then the
burden shifts back to the plaintiff to establish that these reasons are pretextual. Mayfield v.
Patterson Pump Co., 101 F.3d 1371, 1375 (11th Cir. 1996) (citing McDonnell Douglas v.
Green, 411 U.S. 792, 802–04 (1973)); see also Earl v. Mervyns, Inc., 207 F.3d 1361, 1365
(11th Cir. 2000) (per curiam) (“The burden-shifting analysis of Title VII employment
discrimination claims is applicable to ADA claims.”). Under this framework, Nelson must
show that she (1) has a disability; (2) is a qualified individual under the ADA; and (3) was
subjected to unlawful discrimination because of her disability. Davis v. Fla. Power & Light
Co., 205 F.3d 1301, 1305 (11th Cir. 2000). If Nelson meets this burden, PMTD must then
provide a legitimate, non-discriminatory reason for the adverse employment action, Cooper
v. Southern Company, 390 F.3d 695, 732 (11th Cir. 2004), and if PMTD does so, the burden
shifts back to Nelson to produce substantial evidence that PMTD’s proffered reason is
pretextual. Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008); Chapman v. AI
Transport, 229 F.3d 1012, 1024–25 (11th Cir. 2000).
As an initial matter, the Court finds that Nelson has not presented direct evidence of
discrimination, and thus the burden-shifting McDonnell-Douglas framework is applicable
here. “[D]irect evidence relates to actions or statements of an employer reflecting a
discriminatory . . . attitude correlating to the discrimination . . . complained of by the
employee.” Caban-Wheeler v. Elsea, 904 F.2d 1549, 1555 (11th Cir. 1990); see also Earley
v. Champion Int’l Co., 907 F.2d 1077, 1081 (11th Cir. 1990) (“One example of direct
evidence would be a management memorandum saying, ‘Fire Earley—he is too old.’”).
Evidence that merely suggests, but does not prove, an employer’s discriminatory motive for
an adverse employment action is not direct evidence, but circumstantial evidence. See
Burrell, 125 F.3d at 1393.
Nelson alleges in her complaint that Teal took the following adverse employment
actions against her because of her disability: (1) he removed her from the cashier position
upon learning of her disability; (2) he reduced her work hours from 20 hours per week to 8
to 10 hours per week; and (3) he terminated her. In her response brief, Nelson argues that
Teal’s email to Gillespie on May 23, 2011, explaining his reasons for terminating Nelson
constitutes direct evidence of disability discrimination. Specifically, Nelson argues that
Teal’s statements to Gillespie that Nelson was hearing-impaired, suffered memory loss, and
“only had about 50% to 60% use of her left hand,” that he felt these conditions limited her,
and that she failed to inform him of these limitations in the hiring process, are direct evidence
of discrimination. These statements, while they undeniably discuss Nelson’s disability and
its effects, do not not prove that her disability was a substantial motive for her termination.
If anything, Teal’s email raises a suggestion of discrimination, which does not qualify as
direct evidence. Moreover, Teal’s email relates to only one of Nelson’s claimed adverse
employment actions–her termination–and thus, it cannot serve as direct evidence for the
Based on the foregoing, the Court analyzes this case according to the McDonnellDouglas burden-shifting framework, which places the initial burden on Nelson to prove each
each element of her prima facie case. The first element—that Nelson has a disability—is
uncontested by the parties. PMTD instead contends that it is entitled to summary judgment
because Nelson cannot prove the second two elements of her prima facie case—that she is
a qualified individual under the ADA and that PMTD discriminated against her because of
her CP. The Court will address each of these arguments in turn.
A “qualified individual with a disability” under the ADA is someone who can perform
the “essential functions” of the job, “with or without reasonable accommodation.” 42 U.S.C.
§ 12111(8). “Essential functions are ‘the fundamental job duties of the employment position
the [disabled employee] holds or desires.’” Lucas v. W.W. Grainger, Inc., 257 F.3d 1249,
1258 (11th Cir. 2001) (quoting 29 C.F.R. § 1630.2(n)(1)). When determining what those
fundamental job duties are, courts must consider the employer’s judgment and any written
job descriptions the employer produces. Id. In considering the employer’s judgment, which
is entitled to substantial weight, courts may look to testimony from the plaintiff’s supervisor.
Holly v. Clairson Indus., 492 F.3d 1247, 1257–58 (11th Cir. 2007). Other relevant factors
to consider are the amount of time the employee spends performing the function and the
consequences of not requiring the employee to perform the function.
29 C.F.R. §
1630.2(n)(3). This determination is a fact-based inquiry to be resolved on a case-by-case
basis. Lucas, 257 F.3d at 1258.
Job duties that are merely marginal are not essential
functions of the job. 29 C.F.R. § 1630.2(n)(1).
An accommodation is a “reasonable” one only if it enables the employee to perform
the essential functions of the job. Holly, 492 F.3d at 1256 (citations omitted). Such
accommodations include “modifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is customarily performed
. . . .” 29 C.F.R. § 1630.2(o)(1)(ii). But the ADA does not require an employer to eliminate
an essential function of the job to accommodate a disabled employee. See D’Angelo v.
ConAgra Foods, Inc., 422 F.3d 1220, 1229 (11th Cir. 2005).
To determine whether Nelson is a qualified individual under the ADA, the Court must
first identify the essential functions of the jobs for which Nelson was hired—a cashier—and
then decide whether she could have performed this position with or without a reasonable
accommodation. See Lucas, 257 F.3d at 1258. If Nelson could not have performed the
essential functions of this job, even with a reasonable accommodation, she is not a qualified
individual under the ADA. See Holly, 492 F.3d at 1256.
The record establishes that the job duties of the cashier position were to greet the
customers, take their orders, and process payments. (Teal Dep. 43:6–9, Doc. #31-1.) To take
customer orders, cashiers must operate the KFC cash register, which has several keys with
varying functions. The keys have both pictures of the menu items and written descriptions
of the items on them. The Court finds that these duties—including being able to operate the
cash register and recall customer orders—were the essential functions of the cashier position
for which Nelson was hired. While the evidence indicates that cashiers sometimes packed
orders as well, because performance of this duty was only occasional, the Court finds that
this was only a marginal function of the cashier job.
With that conclusion in mind, a review of the record shows that a disputed issue of
fact exists as to whether Nelson was qualified to perform the essential functions of the
cashier position for which she was hired. Teal testified that the only function of the cashier
position that Nelson could not perform was remembering the functions of the cash register
keys. However, the undisputed evidence shows that new cashiers were given three to five
shifts of training on the cash register. Nelson testified that she was put in front of the cash
register for the first time at the lunch rush hour and was given no more than ten minutes of
total training on the machine before Teal removed her from the cash register and set her to
work as a packer. While Teal contends that Nelson asked to be removed from the cashier
position, Nelson repeatedly contests this fact throughout her deposition. Moreover, Teal
could not recall during his deposition ever observing Nelson work as a cashier or hearing
reports of her working as a cashier from other KFC employees. Taking this evidence in the
light most favorable to Nelson, the Court finds that a disputed issue of fact exists as to
whether Nelson was qualified to perform the essential functions of the cashier position for
which she was hired, with or without a reasonable accommodation.
Discrimination Because of a Disability
Discrimination under the ADA includes not only adverse employment actions but also
an employer’s refusal to make “reasonable accommodations” to a plaintiff’s known
disabilities. 42 U.S.C. § 12112(a) & (b)(5)(A); LaChance v. Duffy’s Draft House, Inc., 146
F.3d 832, 835 (11th Cir. 1998). PMTD construes Nelson’s one-count complaint to include
both a disparate-treatment discrimination and a failure-to-accommodate claim. The Court
agrees with that construction and will analyze these claims separately.
Nelson’s Failure-to-Accommodate Claim
PMTD argues that Nelson’s failure-to-accommodate claim should be dismissed
because Nelson did not allege this type of discriminatory treatment in her EEOC charge, and
thus, she failed to exhaust her administrative remedies on this claim before filing suit. The
Court agrees, and Nelson does not appear to contest (indeed, she does not even respond) to
this argument in her response brief.
A plaintiff suing under the ADA must exhaust her administrative remedies prior to
filing suit in federal court by filing a charge of discrimination with the EEOC and receiving
the statutory notice from the EEOC. See 42 U.S.C. § 12117 (making the procedures and
remedies applicable to Title VII plaintiffs applicable to ADA plaintiffs suing in the
employment context); Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir. 1989) (setting forth
exhaustion requirements for plaintiffs filing suit under Title VII). The allegations in the
judicial complaint must be “reasonably related” to the EEOC charge with no “material
differences” between the two. Wu, 863 F.2d at 1547 (citing Ray v. Freeman, 626 F.2d 439,
443 (5th Cir. 1980)). While a court may entertain claims in a later complaint “which serve
to amplify, clarify, or more clearly focus earlier EEO complaints,” “[a]llegations of new acts
of discrimination, offered as the essential basis for the requested judicial review, are not
appropriate.” Ray, 626 F.2d at 443. Indeed, an employer’s failure to accommodate is a
separate act of discrimination under the ADA that gives rise to a separate cause of action
under the ADA, with a different burden of proof and different theory of liability. See 42
U.S.C. § 12112(b)(5)(A); Terrell v. USAir, 132 F.3d 621, 624 (11th Cir. 1998) (setting forth
the distinct burden of proof that applies to ADA failure-to-accommodate claims). Nelson
does not mention anywhere in her EEOC charge that PMTD failed to provide her a
reasonable accommodation so she could perform the essential functions of her job. Her
charge is limited to allegations about Teal’s hostile treatment of her and Teal’s refusal to let
her work at the cash register because he thought she was physically unable to do so. Because
Nelson did not allege that PMTD failed to accommodate her disability in her EEOC charge,
and thus, failed to exhaust her administrative remedies as to that claim, PMTD’s motion for
summary judgment on that claim is GRANTED.
Nelson’s Disparate Treatment Claim
Nelson alleges in her complaint that Teal took the following adverse employment
actions against her: (1) he removed her from the cashier position upon learning of her
disability; (2) he reduced her work hours from 20 hours per week to 8 to 10 hours per week;
and (3) he terminated her. PMTD argues that Nelson has not presented circumstantial
evidence showing that she was discriminated against because of her disability, and that even
if she had, she cannot rebut PMTD’s legitimate, non-discriminatory reasons for Teal’s
actions as being pretext for discrimination.
The Court finds that Plaintiff has presented sufficient circumstantial evidence to raise
an inference that Teal discriminated against her on the basis of her disability. First, Nelson
has presented evidence that she was removed from the cashier position she was hired to fill
before being given the same amount of training provided to other non-disabled employees.
Teal testified in her deposition that new cashiers receive three to five shifts of training on the
cash register. Indeed, Teal himself received this amount of training as a cashier. According
to Nelson, she spent no more than ten minutes training on the cash register during the peak
lunch rush before Teal moved her to a packer position—a position he had observed her have
trouble with on her previous shift. This evidence, combined with Teal’s observation of the
weakness of Nelson’s left hand in her first training session, raises a reasonable inference that
Teal removed Nelson from her cashier job without adequate training time because of her
The only legitimate, non-discriminatory reason that PMTD has offered for this action
is that Nelson requested to be removed from the cashier position because it was too difficult
for her given her CP-related short-term memory loss. Yet, Nelson disputes that she requested
to be removed from the cashier position, or that she ever told Teal that she could not
remember customer orders. Moreover, Teal could not recall observing Nelson perform the
cashier job at all or receiving any complaints or other feedback from other employees
regarding Nelson’s ability to perform the job.
Regarding Nelson’s termination from her employment, the Court finds that Nelson
has also presented sufficient circumstantial evidence in the form of statements made by Teal
to make out her prima facie case of discrimination. Nelson testified in her deposition that,
in her discussion with Teal during her first week of work, Teal told her that he felt “duped”
and that he did not think the job would work out for her because of her hand. These remarks,
at a minimum, suggest that a discriminatory intent motivated Teal’s termination of Nelson.
Additionally, Teal’s email to Gillespie, in which he stated that he was not informed of
Nelson’s limitations during the hiring process, gives rise to an inference that Teal could have
possessed a discriminatory bias against her based on her disability.
PMTD’s proffered legitimate, non-discriminatory reason for Nelson’s termination is
that she could not perform the essential functions of any crew member position at Valley
KFC. However, the Court has already concluded that Nelson has raised a disputed issue of
fact that she could have performed the cashier position for which she was hired if she had
been given the same amount of training as any other incoming cashier. Moreover, the lack
of documentation of Nelson’s deficient job performance in her month at Valley KFC, and
the undisputed fact that Nelson did not receive any complaints about her work performance
prior to her termination, could lead a reasonable juror to conclude that PMTD’s stated nondiscriminatory reason for terminating Nelson—that she could not perform any of the jobs in
which she was placed—was mere pretext for a discriminatory motive. See Stanfield v.
Answering Serv., Inc., 867 F.2d 1290, 1294 (11th Cir. 1989) (holding that lack of disciplinary
reports in employee’s work file and lack of verbal complaints to employee about her work
habits supported a reasonable jury’s conclusion that employer’s articulated nondiscriminatory
reason for terminating employee was pretextual).
With regard to Teal’s reduction of Nelson’s work hours, the Court concludes that
Nelson has failed to rebut PMTD’s legitimate, non-discriminatory reasons for the drop in her
scheduled hours from 21 hours in her first week to 12 hours in her second week. In his
deposition, Teal testified that he normally scheduled work hours according to sales
projections for that week. In a later affidavit, Teal explained that Nelson was scheduled for
21 hours her first week of employment because she was receiving training that week.5
Because Nelson has not rebutted PMTD’s articulated non-discriminatory reason for Teal’s
reduction of her work hours, the Court finds that any disparate treatment claim based on this
Plaintiff filed an objection to Teal’s affidavit (Doc. #43), arguing that it is a “sham affidavit” of
the kind prohibited by Van T. Junkins. However, the Court fails to see how this evidence directly conflicts
with Teal’s deposition testimony that he normally schedules hours and shifts depending on sales projections.
Thus, the Court will consider Teal’s affidavit in its analysis of this claim.
adverse employment action is unsupported by the record.
In sum, viewing the evidence in the light most favorable to Nelson, the Court finds
that there are disputed issues of fact as to Nelson’s disparate-treatment discrimination claim
to the extent those claims are based on her removal from the cashier position and her
eventual termination. Thus, summary judgment is not warranted on that claim.
VI. C ONCLUSION
In accordance with the foregoing, it is hereby ORDERED as follows:
1. Defendant’s Motion to Strike (Doc. #40) is DENIED;
2. Plaintiff’s Objection to Defendant’s Supplemental Evidentiary Submission (Doc.
#43) is OVERRULED; and
3. Defendant’s Motion for Summary Judgment (Doc. #29) is GRANTED IN PART
AND DENIED IN PART. It is GRANTED to the extent is requests dismissal of Plaintiff’s
failure-to-accommodate claim under the ADA, as set forth in Count One of the complaint,
and that claim is DISMISSED WITH PREJUDICE. However, the motion is DENIED to the
extent it requests dismissal of Plaintiff’s disparate treatment claim under the ADA, as set
forth in Count One of the complaint, based on her removal from the cashier position and
DONE this the 8 day of August, 2013.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?