Ingram v. Central Moloney Inc

Filing 21

ORDER granting deft's 16 Motion for Summary Judgment; judgment will be entered accordingly. Signed by Judge Susan Webber Wright on 4/27/12. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
BEVERLY INGRAM,
Plaintiff,
vs.

CENTRAL MOLONEY, INC.,
Defendant.

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No. 5:11-cv-00219-SWW

ORDER
Plaintiff Beverly Ingram, who is proceeding pro se, brings this action against her former
employer, defendant Central Moloney, Inc., alleging violations of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq. The matter is before the Court on
motion of defendant for summary judgment [doc.#16]. Plaintiff has not responded to
defendant’s motion and the time for doing so has passed. Having considered the matter, the
Court grants defendant’s motion for summary judgment.
I.
A.
Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The
moving party “bears the initial responsibility of informing the district court of the basis for its
motion,” and must identify “those portions of [the record] ... which it believes demonstrate the
absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Once the moving party has properly supported its motion for summary judgment, the nonmoving

party must “do more than simply show there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). The nonmoving
party must respond by submitting evidentiary materials that set out “‘specific facts showing ... a
genuine issue for trial.’” Celotex, 477 U.S. at 324 (quoting Fed.R.Civ.P. 56(e)). The inferences
to be drawn from the underlying facts must be viewed in the light most favorable to the party
opposing the motion. Matsushita, 475 U.S. at 587 (citations omitted). Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge. Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 150 (2000) (citation and quotation marks omitted). However, “[w]here the record
taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no
‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). “Only disputes over
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“Factual disputes that are irrelevant or unnecessary will not be counted.” Id.1
B.
In not responding to defendant’s motion for summary judgment, plaintiff has not
contested the arguments defendant has set forth in its motion that it states entitles it to summary
judgment. Accordingly, plaintiff has waived those arguments. See Satcher v. University of
Arkansas at Pine Bluff Bd. of Trustees, 558 F.3d 731, 735 (8th Cir. 2009) (a “failure to oppose a
basis for summary judgment constitutes a waiver of that argument”).

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“There is no ‘discrimination case exception’ to the application of summary judgment, which is a useful
pretrial tool to determine whether any case, including one alleging discrimination, merits a trial.” Torgerson v. City
of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc).

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In addition, plaintiff has failed to file, pursuant to Rule 56.1 of the Local Rules of the
United States District Court for the Eastern and Western Districts of Arkansas, a statement of the
material facts as to which she contends a genuine issue exists to be tried. Plaintiff has thus
admitted the facts as set forth by defendant in its Statement of Undisputed Facts [doc.#17] as to
which it contends there is no genuine issue to be tried.2 Accordingly, the facts as described in
defendant’s motion for summary judgment are the undisputed facts of this case. See Beavers v.
Bretherick, 227 Fed.Appx. 518, 521 (8th Cir. 2007) (citing Local Rule 56.1(c) in concluding that
the facts as described in unopposed motion for summary judgment are the undisputed facts of the
case).3
C.
“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.’” Tusing v. Des Moines Independent Community School Dist., 639
F.3d 507, 518 (8th Cir. 2011) (quoting 42 U.S.C. § 12112(a)). The familiar McDonnell Douglas

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Local Rule 56.1(a) provides that "[a]ny party moving for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure, shall annex to the notice of motion a separate, short and concise statement of the
material facts as to which it contends there is no genuine issue to be tried." Paragraph (b) of the rule provides that
"[i]f the non-moving party opposes the motion it shall file, in addition to any response and brief, a separate, short
and concise statement of the material facts as to which it contends a genuine issue exists to be tried." Paragraph (c)
of the rule provides that "[a]ll material facts set forth in the statement filed by the moving party pursuant to
paragraph (a) shall be deemed admitted unless controverted by the statement filed by the non-moving party under
paragraph (b)."
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By Order entered August 30, 2011 [doc.#7], the Court informed plaintiff that she is required to be familiar
and comply with all the Federal Rules of Civil Procedure as well as the Local Rules of this Court and that failure to
so comply can result in the dismissal of her claim. The Court noted that the Federal Rules of Civil Procedure are
available in many libraries and bookstores, that the Local Rules can be obtained from the Clerk of the Court for the
Eastern District of Arkansas, and that said rules may also be accessed from the internet website of the United States
District Court for the Eastern District of Arkansas.

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burden-shifting framework applies in ADA cases. Kosmicki v. Burlington Northern & Santa Fe
R. Co., 545 F.3d 649, 651 (8th Cir. 2008) (citation omitted). Under this framework, an employee
is first required to make out a prima facie case by showing “‘(1) that [she] has a disability within
the meaning of the ADA; (2) that [s]he is qualified to perform the essential functions of the job,
with or without reasonable accommodation; and (3) that [s]he suffered an adverse employment
action due to a disability.’” Tusing, 639 F.3d at 518 (quoting Chalfant v. Titan Distrib. Inc., 475
F.3d 982, 988 (8th Cir. 2007)). Once an employee presents a prima facie case of discrimination,
the employer must articulate a legitimate, nondiscriminatory reason for the discharge. Kosmicki,
545 F.3d at 651 (citation omitted). Once an employer presents such evidence, the burden shifts
back to the employee to produce evidence that the employer's stated reasons are a pretext for
discrimination. Id.
As set forth in defendant’s unopposed motion for summary judgment and statement of
material facts as to which it contends there is no genuine issue to be tried, plaintiff is unable to
show a violation of the ADA. Plaintiff does not dispute defendant’s claim that there is no
indication in the record that she is disabled within the meaning of the ADA as she has not
identified any disability in her testimony. Additionally, plaintiff does not dispute defendant’s
claim that there is no indication that any decision maker was motivated by or even aware of any
alleged disability with respect to terminating her employment. An employer must have known
about an employee's condition before it can be liable for discriminating against her in violation
of the ADA because of that condition. Kozisek v. County of Seward, Nebraska, 539 F.3d 930,
936 (8th Cir. 2008). Since plaintiff does not dispute defendant’s claim that there is no evidence

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that any decision maker was aware of any alleged disability suffered by plaintiff and that there is
no indication in the record that she in fact had any disability, she cannot make a prima facie case.
II.
For the foregoing reasons, the Court grants defendant’s motion for summary judgment in
its entirety and will enter judgment accordingly.
IT IS SO ORDERED this 27th day of April 2012.

/s/Susan Webber Wright
UNITED STATES DISTRICT JUDGE

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