Hetherington v. Wal-Mart, Inc.
MEMORANDUM OPINION-re: R&R 27 . The Magistrate Judge's Report is due to be and hereby is ADOPTED and the Recommendation is ACCEPTED. Signed by Judge R David Proctor on 6/11/2012. (AVC)
2012 Jun-11 PM 02:41
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
Case No.: 5:10-CV-01374-RDP
The Magistrate Judge filed a Report and Recommendation (Doc. # 27) on April 24, 2012,
recommending that Defendant's Motion for Summary Judgment (Doc. # 18), be granted. In
particular, the Magistrate Judge recommended that Plaintiff's Complaint alleging that his
employment with Defendant was terminated because of his disability in violation of the Americans
With Disabilities Act ("ADA")1 be dismissed. The parties were advised of their right to file specific
written objections within fifteen (15) days, and Plaintiff has filed objections to the Report and
Recommendation. (Doc. # 28). Plaintiff also filed objections (Doc. # 31) to the Magistrate Judge's
Order striking certain evidence (Doc. # 30), issued in response to Defendant's Motion to Strike
portions of Plaintiff's evidentiary submission (Doc. # 24).
The parties apparently agree that the January 1, 2009, amendments to the ADA (hereinafter
referred to as the "ADAAA") do not apply to Plaintiff's case because the ADAAA does not apply
retroactively. Although the Eleventh Circuit has not issued a published opinion on the issue, in an
unpublished per curiam decision, it has suggested that the ADAAA does not apply retroactively.
Fikes v. Wal-Mart, Inc., 322 Fed.Appx. 882, 883 n.1 (11th Cir. 2009). Other courts have held that
the ADAAA should not be applied retroactively. Milholland v. Sumner County Bd. of Educ., 569
F.3d 562, 565-66 (6th Cir. 2009); Kiesewetter v. Caterpillar, Inc., 295 Fed.Appx. 850, 851 (7th Cir.
2008); EEOC v. Agro Distr., LLC, 555 F.3d 462, 469 n.8 (5th Cir. 2009). This case truly
demonstrates the different standards that apply with the ADA on the one hand, and the ADAAA on
the other, and Plaintiff's claims must be evaluated under the former.
Having carefully reviewed and considered de novo all the materials in the court file, including
the Report and Recommendation, the Order on the Motion to Strike, and Plaintiff's objections to both
of those documents, the court concludes as follows: Even considering all of the evidence which the
Magistrate Judge ordered stricken, the Magistrate Judge's Report is due to be and hereby is
ADOPTED and the Recommendation is ACCEPTED.
The court notes that Plaintiff's disability claim fails because the assertions he relies upon to
establish a prima facie case of disability are conclusory, and certainly not descriptive as to the
impact, severity, or duration of any alleged substantial limitation on a major life activity. His prima
facie evidence simply does not afford any means of comparing his inabilities relative to the
inabilities of the average person in the general population. Hubmann v. Young, 2010 WL 3789102
*4 (11th Cir. 2010). The term "substantially limits" is defined as "significantly restricted as to the
condition, manner, or duration under which an individual can perform a particular major life activity
as compared to the condition, manner, or duration under which the average person in the general
population can perform that same major life activity." 29 C.F.R. § 1630.2(j)(1)(ii). The fact that
Plaintiff suffers from some limitations, and has been approved to receive social security benefits, is
not determinative of the issue. See Littleton v. Wal-Mart Stores, Inc., 231 Fed. Appx. 874, 877 (11th
Cir. 2007). The burden of establishing disability is on Plaintiff, and under the ADA, as opposed to
the ADAAA, that burden is a heavy one. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184,
197 (2002). Defendant's Motion for Summary Judgment (Doc. # 18) is due to be granted.
DONE and ORDERED this
day of June, 2012.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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