Equal Employment Opportunity Commission v. Eckerd Corporation

Filing 76

ORDER AND OPINION granting 49 Defendant's Motion for Summary Judgment and denying 53 Plaintiff's Motion for Partial Summary Judgment. Signed by Judge Julie E. Carnes on 7/1/12. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
CIVIL ACTION NO.
v.

1:10-cv-2816-JEC

ECKERD CORPORATION d/b/a RITE
AID,
Defendant.
ORDER AND OPINION
This case is before the Court on defendant’s Motion for Summary
Judgment [49] and the EEOC’s Motion for Partial Summary Judgment [53].
The Court has reviewed the record and the arguments of the parties
and, for the reasons set out below, concludes that defendant’s Motion
for Summary Judgment [49] should be GRANTED and the EEOC’s Motion for
Partial Summary Judgment [53] should be DENIED.
BACKGROUND
This

is

a

disability

discrimination

case.

(Compl.

[1].)

Charging party Fern Strickland began working as a cashier at Eckerd’s
Holcomb Bridge store in 1992.
(“DSMF”) [49] at ¶ 11.)

(Def.’s Statement of Material Facts

In 2000, Strickland transferred to Eckerd’s

Jones Bridge store, where she continued to work as a cashier.

AO 72A
(Rev.8/82)

(Id. at

¶ 12.)

Defendant Rite Aid acquired the Jones Bridge store when it

purchased the Eckerd Corporation in June, 2007.

(Id. at ¶¶ 1-2.)

Strickland worked as a cashier for the Jones Bridge Rite Aid from the
date of the acquisition until she was terminated on January 29, 2009.
(Id. at ¶ 170.)
Strickland was diagnosed with osteoarthritis in both of her knees
in June, 2001.
¶ 8.)

(Pl.’s Statement of Material Facts (“PSMF”) [53] at

Strickland’s condition made it difficult for her to walk

without the assistance of a cane or to stand for prolonged periods of
time.

(Id. at ¶¶ 9-11.)

At some point in 2001, Strickland began

intermittently sitting in a chair at work to relieve pain in her
knees.

(Id. at ¶ 11.)

Strickland had knee replacement surgery in her

right knee in 2006, but her knee pain persisted and she continued to
use the chair at work.

(Id. at ¶¶ 9-12, 19-20.)

In March, 2008, Larry Frisbie became the district manager of the
Jones Bridge Rite Aid.

(PSMF [53] at ¶ 13.)

Several months later,

Frisbie and Human Resources Manager Linda Sheffield visited the Jones
Bridge store and observed Strickland sitting in a plastic lawn chair
behind the counter.

(Id. at ¶ 16 and DSMF [49] at ¶ 102.)

Sheffield

was perplexed by this observation, as Rite Aid generally does not
permit cashiers to sit while they are on duty and she had never seen
a cashier sitting in this manner.

(DSMF [49] at ¶¶ 31, 103.)

According to Frisbie, cashiers are required to productively work on
2

AO 72A
(Rev.8/82)

the sales floor stocking, cleaning and performing other housekeeping
and general store duties when they do not have a customer at the
register.

(Id. at ¶ 31.)

When Frisbie and Sheffield asked Strickland why she was sitting
behind the counter, Strickland informed them that she had provided
Rite Aid a doctor’s note concerning her need to use the chair at work.
(PSMF [53] at ¶ 17.)

Following the store visit, Sheffield checked

Strickland’s file for a doctor’s note and found one from January,
2007.

(Id. at ¶ 18.)

The note stated that Strickland “requires a

stool or chair to sit in at work . . . throughout the day, and most of
the day due to severe arthritic symptoms.”

(Id. at ¶ 19.)

After

reviewing the note and speaking with Strickland, Sheffield determined
that she needed more information about Strickland’s limitations, as
well as her work habits and ability to meet the requirements of the
cashier position.

(DSMF [49] at ¶¶ 108, 110.)

Upon further investigation, Sheffield was informed by the store
manager, Robin Jean, that Strickland had been permitted to sit
intermittently and at her discretion for several years due to her
arthritic symptoms.

(Id. at ¶ 111.)

However, Sheffield did not find

any evidence that Eckerd or Rite Aid had ever formally approved a
sitting accommodation for Strickland.

(Id. at ¶ 113.)

Moreover,

Sheffield surmised from her interview with Jean that Strickland’s

3

AO 72A
(Rev.8/82)

frequent sitting was causing productivity and personnel problems for
the Jones Bridge store.1

(Id. at ¶¶ 115-117.)

Based on her preliminary inquiries, Sheffield concluded that the
2007 doctor’s note was outdated and vague concerning Strickland’s
precise

limitations.

requested

an

updated

(Id.
and

at

more

¶

118.)

specific

Strickland’s medical restrictions.

Accordingly,
doctor’s

note

Sheffield
regarding

(DSMF [49] at ¶ 119.)

Per

Sheffield’s request, Strickland provided a doctor’s note in December,
2008 stating that she “requires a chair at checkout and limited to 15
minutes or less at a time due to osteoarthritis.”

(Id. at ¶ 120.)

In

an accompanying handwritten note, Strickland indicated that “Dr.
Ellis’s nurse ‘Allison’” could provide more information if necessary.
(Id. at ¶ 121.)
In addition to requesting an updated doctor’s note, Sheffield
asked Rite Aid Loss Prevention Manager Gibson to review security
surveillance tapes over the register to determine how much time
Strickland spent sitting idly and how much time she spent working
productively.

(Id. at ¶ 122.)

By mid-January, 2009, Gibson had

1

The EEOC denies that Strickland was unproductive and points out
that she never was disciplined or counseled on the issue.
(Pl.’s
Resp. to DSMF [70] at ¶¶ 115-117.) However, the EEOC concedes that
Jean informed Sheffield that Strickland’s sitting interfered with her
ability to do a sufficient amount of cashiering work, increased the
workload of other employees, and was one of the reasons the store was
not meeting company standards. (Id.)
4

AO 72A
(Rev.8/82)

reviewed four days of video footage from the first week of January,
2009.

(Id. at ¶ 124.)

He reported to Sheffield that, on those four

days, Strickland was sitting down idly for about half of her shift.
(DSMF [49] at ¶ 124.)

A loss prevention associate, Scott Gloede,

reviewed two additional days of tape and reported similar findings.
(Id. at ¶ 127.)
After reviewing the updated doctor’s note and the loss prevention
reports, Sheffield determined that she and Frisbie needed to meet with
Strickland

to

determine

accommodation for her.

whether

(Id. at ¶ 131.)

Strickland on January 15, 2009.
of

the

meeting

was

interactive

her

for

dialogue

understand

accommodations.

they

with

find

and

Strickland
and

an

appropriate

They scheduled a meeting with

(Id. at ¶ 133.)

Sheffield

restrictions

could

Frisbie

so

try

The stated purpose
to

engage

that

they

could

to

identify

in

an

better

reasonable

(Id.)

The January 15 meeting occurred as planned. (PSMF [53] at ¶ 23.)
During the meeting, Sheffield and Frisbie advised Strickland that they
had received an updated doctor’s note, but that the note still was
unclear about Strickland’s limitations.

(DSMF [49] at ¶¶ 135, 142.)

They also informed Strickland about the results of the loss prevention
surveillance review indicating that Strickland was sitting down idly
for about half of her shift.

(Id. at ¶ 138.)

At some point in the

meeting, Sheffield and Frisbie asked Strickland about the permanency
5

AO 72A
(Rev.8/82)

of her requested sitting accommodation.

(Id. at ¶ 137.)

Strickland

responded that she would likely need the accommodation forever. (Id.)
Shortly

after

the

January

15

meeting,

Strickland

provided

Sheffield and Frisbie a new note from her doctor stating that she
“needs to sit at least 30 minutes per hour worked throughout the work
day.”

(Id. at ¶ 145.)

The new note was consistent with the amount of

time that Strickland had been observed to be sitting idly on video
surveillance tapes.

(DSMF [49] at ¶¶ 124, 127.)

However, the note

did not provide a rationale for the half-time sitting restriction or
a more specific assessment of Strickland’s limitations, as requested
by Sheffield and Frisbie.

(Id. at ¶ 147.)

Based on their most recent

discussions with Strickland and the new doctor’s note, Sheffield and
Frisbie concluded that they still needed more information about
Strickland’s

restrictions

accommodation.

and

needs

to

identify

a

reasonable

(Id. at ¶ 148.)

On January 19, 2009, Sheffield faxed a written cashier job
description to Dr. Ellis and asked him to review it to ensure that
Strickland was medically capable of performing the essential functions
of the job.
to

(Id. at ¶ 149.)

determine

accommodation

whether
other

The purpose of Sheffield’s request was

Strickland’s
than

the

doctor

“very

could

restrictive

recommend
50%

any

sitting

accommodation” requested by Strickland and indicated by the doctor’s
most recent note.

(Pl.’s Resp. to DSMF [70] at ¶¶ 150-152.)
6

AO 72A
(Rev.8/82)

Dr.

Ellis never responded to Sheffield’s job description inquiry. (Id. at
¶¶ 155-156.)

Strickland admits that she never asked Dr. Ellis to

provide the requested information nor otherwise followed up to see if
he had responded to Sheffield’s inquiry.

(Id. at ¶¶ 158-159.)

Within the next several days, Sheffield concluded that Rite Aid
could not provide Strickland with the sitting accommodation that she
had requested.

(PSMF [53] at ¶¶ 29.)

Frisbie, as well as Sheffield’s

direct supervisor Ron Seitler, concurred. (Id. at ¶ 30.) Frisbie and
Sheffield met with Strickland on January 29, 2009 to tell her that
Rite Aid would not allow her to sit for half of each hour that she
worked.

(Id.

at

¶

32.)

Per

Sheffield’s

recommendation

and

accommodation decision, Strickland was not permitted to continue
working on January 29.
¶ 34.)

(Id. at ¶ 34 and Def.’s Resp. to PSMF [71] at

A termination form dated February 26, 2009 reflects that

Strickland’s employment at Rite Aid was terminated effective January
29, 2009, the last day Strickland worked.
Following

her

termination,

(DSMF [49] at ¶ 170.)

Strickland

filed

a

charge

discrimination with the EEOC alleging violations of the ADA.
[1] at ¶ 7.)
behalf.

of

(Compl.

The EEOC subsequently filed this action on Strickland’s

(Id. at ¶ 3.)

In its complaint, the EEOC asserts that

defendant failed to provide Strickland a reasonable accommodation for
her disability, and then terminated Strickland on account of her
disability, in violation of the ADA.
7

AO 72A
(Rev.8/82)

(Id. at ¶ 8.)

The EEOC seeks

permanent injunctive relief against defendant, as well as compensatory
and punitive damages for Strickland.

(Id. at 5-7.)

The parties have

filed cross-motions for summary judgment on the ADA claim, which are
now before the Court.

(Def.’s Mot. for Summ. J. [49] and Pl.’s Mot.

for Partial Summ. J. [53].)
DISCUSSION
I.

Summary Judgment Standard
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 judgment as a matter of law.

FED. R. CIV. P. 56(c).

A

fact’s materiality is determined by the controlling substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

An issue

is genuine when the evidence is such that a reasonable jury could
return a verdict for the nonmovant.

Id. at 249-50.

Summary judgment is not properly viewed as a device that the
trial court may, in its discretion, implement in lieu of a trial on
the merits.

Instead, Rule 56 of the Federal Rules of Civil Procedure

mandates the entry of summary judgment against a party who fails to
make a showing sufficient to establish the existence of every element
essential to that party’s case on which that party will bear the
burden of proof at trial.
(1986).

Celotex Corp. v. Catrett, 477 U.S. 317, 322

In such a situation, there can be “‘no genuine issue as to
8

AO 72A
(Rev.8/82)

any material fact’” because “a complete failure of proof concerning an
essential element of the non[-]moving party’s case necessarily renders
Id. at 322-23 (quoting FED. R. CIV. P.

all other facts immaterial.”
56(c)).

The movant bears the initial responsibility of asserting the
basis for his motion.

Id. at 323.

However, the movant is not

required to negate his opponent’s claim. The movant may discharge his
burden by merely “‘showing’--that is, pointing out to the district
court--that

there

is

an

non[-]moving party’s case.”

absence

of

evidence

to

support

the

Id. at 325. After the movant has carried

his burden, the non-moving party is then required to “go beyond the
pleadings” and present competent evidence designating “‘specific facts
showing that there is a genuine issue for trial.’”

Id. at 324.

The

court must view all evidence and factual inferences in a light most
favorable to the non-moving party.

Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988).

However, “the mere existence of

some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment.”
477 U.S. at 247-48 (1986).

Anderson,

The requirement is that there be “no

genuine issue of material fact.” Id.
II.

Disability Discrimination
The ADA prohibits discrimination against a “qualified individual”

with a disability with respect to any term, condition or privilege of
9

AO 72A
(Rev.8/82)

employment. 42 U.S.C. § 12112(a) and D’Angelo v. ConAgra Foods, Inc.,
422 F.3d 1220, 1227 (11th Cir. 2005)(discussing the purpose of the
ADA).

Under the ADA, discrimination includes the failure to make

reasonable accommodations to the known physical or mental limitations
of an otherwise qualified individual.

42 U.S.C. § 12112(b)(5)(A) and

Lucas

F.3d

v.

W.W.

Grainger,

Inc.,

257

1249,

2001)(addressing an ADA accommodation claim).

1255

(11th

Cir.

Thus, there are two

distinct categories of disability discrimination claims under the ADA:
(1) failure to accommodate and (2) disparate treatment.
Cook Cnty., 241 F.3d 919, 927 (7th Cir. 2001).
types of claims in its complaint.
A.

Basith v.

The EEOC asserts both

(Compl. [1] at ¶ 8.)

Reasonable Accommodation

To prevail on its accommodation claim, the EEOC must prove that
Strickland has a disability and that she is qualified for the Rite Aid
cashier position.

Davis v. Florida Power & Light Co., 205 F.3d 1301,

1305 (11th Cir. 2000).

In addition, the EEOC must demonstrate that

defendant

provide

failed

to

Strickland’s disability.
Harvey,

No.

06-12692,

2007)(describing

the

accommodation claim).

a

reasonable

accommodation

Lucas, 257 F.3d at 1255.
2007

WL

evidentiary

2404705,
framework

at

for

See also Nadler v.
*5

applicable

(11th

Cir.

to

ADA

an

Assuming these requirements are met, defendant

can avoid liability under the ADA by showing that Strickland’s

10

AO 72A
(Rev.8/82)

accommodation would impose an “undue hardship” on its business or
operations.
For

42 U.S.C. § 12112(b)(5)(A).

purposes

of

summary

judgment,

defendant

assumes

that

Strickland is disabled as a result of her osteoarthritis. (Def.’s Br.
in Supp. of Summ. J. (“Def.’s Br.”) [49] at 3.)

However, defendant

contends that Strickland is not a “qualified individual” because she
cannot perform the essential functions of the cashier job with or
without a reasonable accommodation. (Id. at 3-10.) Defendant further
contends that Strickland’s requested accommodation of sitting for half
of every hour that she works would impose an undue hardship on its
business.

(Id. at 10-13.)

The undisputed evidence in the record

supports both of those arguments.
1.

Strickland is not a “qualified individual.”

A disabled individual is “qualified” under the ADA if she can
perform the “essential functions” of her job “with or without a
reasonable

accommodation.”

Wood v. Green, 323 F.3d 1309, 1312 (11th

Cir. 2003). The essential functions of a job include the fundamental,
but not the marginal, duties of the position.
and 29 C.F.R. § 1630.2(n)(1).

Lucas, 257 F.3d at 1258

To determine whether a particular duty

is an essential function, the Court must consider the employer’s
judgment, as well as any written job descriptions.
important factors are:

Id.

Other

(1) the amount of time spent on the job

performing the function, (2) the consequences of not requiring an
11

AO 72A
(Rev.8/82)

employee to perform the function, (3) the work experience of employees
in similar jobs, and (4) the number of employees among whom the
function

can

be

distributed.

Davis, 205 F.3d at 1305 and 29 C.F.R.

§ 1630.2(n)(2)(ii) and (3).
Applying the relevant factors, there is no question that the
cashier job at issue here has significant physical requirements.
(DSMF [49] at ¶¶ 28-52.)

Defendant’s written job description for the

cashier position includes several customer service and housekeeping
duties that are physically demanding, including unloading merchandise,
stocking shelves and end-caps, building merchandise displays, and
ensuring that the store is always clean and visually pleasing.
at ¶ 28.)

(Id.

To accomplish those duties, the job description specifies

that cashiers must be able, among other things, to:

(1) regularly

stand dynamically for long periods of time without a break, (2)
regularly walk about, (3) occasionally stand statically for long
periods of time without a break, and (4) occasionally lift and carry
up to fifty pounds.

(Id. at ¶ 29.)

Consistent with the written job description, store manager Jean
and district manager Frisbie testified that cashiers are expected to
productively work on the sales floor, rather than sit idly, when they
do not have a customer at the register.

(Id. at ¶¶ 30-31.)

to

their

Frisbie,

cashiers

spend

much

of

time

at

According

work

walking

customers to a department, cleaning, stocking shelves, unloading
12

AO 72A
(Rev.8/82)

trucks, implementing price changes and performing other inventory
duties throughout the store.

(Id. at ¶¶ 31, 40.)

cashiers are not permitted to sit while on duty.
51.)

For that reason,

(DSMF [49] at ¶¶ 31,

Rather, they are expected to stay busy doing tasks that

generally require movement around the store.

(Id. at ¶¶ 43, 52.)

Crediting Strickland’s testimony and her doctor’s assessments,
Strickland does not meet the physical requirements described in the
written

job

description,

and

cannot

perform

many

of

the

tasks

identified by her employer as essential, without an accommodation.
Strickland testified that her osteoarthritis makes it difficult for
her to walk unassisted and limits her ability to stand for long
periods of time without a break.

(PSMF [53] at ¶¶ 10-11.)

Dr. Ellis

confirmed in two separate assessments that Strickland needs to sit in
a chair “most of the day” or “at least 30 minutes per hour worked”
throughout the day.

(Id. at ¶¶ 19, 25.)

In addition, Strickland

testified that she is unable to do the lifting and carrying necessary
to assist with truck unloads.

(Strickland Dep. at 150.)

The determinative question is whether Strickland can perform the
functions described above with a reasonable accommodation. Lucas, 257
F.3d at 1255-56.

An ADA plaintiff has the burden of identifying a

reasonable accommodation and demonstrating that it would enable her to
perform the essential functions of her job.

Id. and Terrell v. USAir,

132 F.3d 621, 624 (11th Cir. 1998) (“‘[T]he burden of identifying an
13

AO 72A
(Rev.8/82)

accommodation that would allow a qualified individual to perform the
job rests with that individual’”) (quoting Stewart v. Happy Herman’s
Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997)).

The

EEOC has not met that burden with respect to Strickland.
The only accommodation that Strickland ever identified was to be
allowed to sit in a chair for at least half of her work day.2
[49] at ¶¶ 145-146, 160.)

(DSMF

The EEOC does not explain how sitting idly

for half of the work day would enable Strickland to: (1) work
productively on the sales floor when there is not a customer at the
register, or (2) meet the physical demands required to assist with
truck unloads and perform regular stocking, cleaning and inventory
related

duties.

(Id.

at

¶¶

28-53.)

In

fact,

the

sitting

accommodation would simply eliminate, rather than enable Strickland to
perform, many of the essential functions of the cashier job.
It is therefore per se unreasonable.

(Id.)

Lucas, 257 F.3d at 1255.

The EEOC argues that the accommodation is nevertheless required
by the ADA because Strickland was allowed to sit for the last eight
years of her employment without incident.

(Pl.’s Resp. [68] at 4-5.)

Defendant concedes that Strickland began using a chair intermittently
at work in 2002.

(Def.’s Resp. to PSMF [75] at ¶ 3.)

2

However, during

The EEOC contends that Strickland “never refused to discuss”
other potential accommodations, but it is undisputed that Strickland
failed to request or identify any alternative to the sitting
arrangement. (Pl.’s Resp. to DSMF [70] at ¶¶ 137-143, 160.)
14

AO 72A
(Rev.8/82)

the first five years that Strickland was allowed to sit her store was
operating as an Eckerd, rather than as a Rite Aid.

(Id.)

When Rite

Aid purchased Eckerd in 2007, it reduced the payroll budget and
correspondingly increased the expectations of its cashiers.
[49] at ¶¶ 5-10.)

(DSMF

Assuming that the sitting accommodation was

reasonable for an Eckerd cashier, it was not necessarily feasible once
the store became a Rite Aid, as evidenced by the fact that Frisbie and
Sheffield began questioning Strickland about her sitting within about
a year of the acquisition.

(Id. at ¶¶ 96-108.)

In any case, it is well-settled that an employer’s previous
willingness to provide a certain accommodation does not establish that
the accommodation is reasonable or required.

Holbrook v. City of

Alpharetta, 112 F.3d 1522, 1528 (11th Cir. 1997)(affirming summary
judgment on an accommodation claim, although the employer provided the
requested accommodation “for quite some time” and “with relatively
minor

disruption

or

inconvenience”).

As

the

Eleventh

Circuit

explained in Holbrook:
We do not seek to discourage other employers from
undertaking the kinds of accommodations of a disabled
employee as those performed by
[the employer in this
case]; indeed, it seems likely that the [employer] retained
a productive and highly competent employee based partly on
its willingness to make such accommodations. However, we
cannot say that [the employer’s] decision to cease making
those accommodations that pertained to the essential
functions of [the disabled employee’s] job was violative of
the ADA.

15

AO 72A
(Rev.8/82)

Id.

See also Webb v. Donley, 347 Fed. App’x 443, 446 (11th Cir.

2009)(“the fact that an employer previously has granted a requested
accommodation does not render that accommodation reasonable”).
In a related argument, the EEOC contends that the functions that
Strickland is unable to perform are not essential because she was not
personally asked to do them during the last several years of her
employment.

(Pl.’s Resp. [68] at 6-8.)

On this point, store manager

Jean testified that she exempted Strickland from any physically
demanding tasks and that she allowed Strickland to sit frequently
during the work day.

(Def.’s Resp. to PSMF [75] at ¶¶ 31-36, 45.)

However, Jean stated that she took this action in an attempt to
accommodate Strickland’s limitations and restrictions. (Id.) As with
any other type of voluntary accommodation, an employer does not
concede that a job function is unessential by temporarily removing the
function from a disabled employee’s duties.
1528.

Holbrook, 112 F.3d at

See also Nadler, 2007 WL 2404705, at *7 (an employer’s past

tolerance of tardiness does not negate evidence that punctuality is an
essential function).
Finally, the EEOC suggests that defendant is liable under the ADA
as a result of its failure to discuss alternative accommodations that
might have enabled Strickland to perform the essential functions of
her job.

(Pl.’s Resp. [68] at 14-17.)

The ADA regulations provide

that, in order to determine the appropriate reasonable accommodation:
16

AO 72A
(Rev.8/82)

it may be necessary for an employer “to initiate an
informal, interactive process with the individual with a
disability in need of an accommodation” to identify the
person’s limitations and possible accommodations.
Knowles v. Sheriff, 460 Fed. App’x 833, 835 (11th Cir. 2012)(quoting
29 C.F.R. § 1630.2(o)(3)).
engage

in

the

consequently

required

failed

to

According to the EEOC, defendant did not
interactive
consider

accommodations for Strickland.

process

the

full

in

good

range

faith

of

and

potential

(Id.)

Te Eleventh Circuit has held that an employer has no affirmative
duty even to engage in an interactive process where the disabled
employee fails to identify a reasonable accommodation.

Id. (citing

Earl v. Mervyns, Inc., 207 F.3d 1361, 1367 (11th Cir. 2000)).

As

discussed, the only accommodation that Strickland identified during
her employment with defendant is per se unreasonable.

Even now,

neither Strickland nor the EEOC can point to any accommodation that
would enable Strickland to perform the essential functions of the
cashier job. Given Strickland’s acknowledged physical limitations, it
is doubtful that any such accommodation exists.

(Strickland Dep. at

148-150.)
Moreover, and to the extent that the ADA required an interactive
process in this case, defendant clearly met its burden in that regard.
It is undisputed that Frisbie and Sheffield conducted an investigation
during which they gathered information from various sources concerning

17

AO 72A
(Rev.8/82)

Strickland’s condition, her work habits, and her ability to perform
the cashier job in spite of her physical limitations.
¶¶ 108-131.)

(DSMF [49] at

They subsequently met with Strickland several times, at

least once with the express purpose of identifying and discussing
potential accommodations.

(Id. at ¶¶ 131-133.)

Having fully engaged

in a dialogue with Strickland about her limitations and ability to be
accommodated, defendant is not liable under the ADA for failing to
consider accommodations that Strickland herself never identified or
requested.

See Stewart, 117 F.3d at 1287 (liability does not arise

under the ADA where an employer engages in an interactive process and
makes reasonable efforts to communicate with a disabled employee).
The sitting accommodation requested by Strickland is not only
unreasonable, it is patently incompatible with the essential functions
of the cashier job as identified by defendant’s management and
routinely performed by every other cashier except Strickland.
[49] at ¶¶ 28-52.)

(DSMF

It is undisputed that Strickland never identified

an alternative reasonable accommodation, and there is no indication
that such an accommodation exists.

Accordingly, Strickland is not a

“qualified individual” under the ADA.

Davis, 205 F.3d at 1305 (an

employee who is unable to do the essential functions of his job with
or

without

accommodation

is

by

definition

not

a

“qualified

individual”) and Lucas, 257 F.3d at 1255 (holding same). Defendant’s
motion for summary judgment [49] on the EEOC’s accommodation claim is
18

AO 72A
(Rev.8/82)

therefore GRANTED and the EEOC’s motion for partial summary judgment
[53] on the “qualified individual” prong is DENIED.
2.

The requested accommodation is an undue hardship.

An accommodation is an undue hardship when it can only be
accomplished with “significant difficulty or expense” to the employer.
42 U.S.C. § 12111(10)(A).

To determine whether that is the case, the

Court considers several factors, including the nature and cost of the
accommodation
workforce.

and

its

impact

on

Id. at § 12111(10)(B).

an

employer’s

operations

and

Accommodations that result in

other employees having to work harder or longer are often denied on
the ground of undue hardship.

See Dey v. Milwaukee Forge, 957 F.

Supp. 1043, 1052 (E.D. Wis. 1996)(“An accommodation that would result
in other employees having to work harder or longer is not required
under the ADA.”) and Pate v. Baker Tanks Gulf S., Inc., 34 F. Supp. 2d
411, 417 (W.D. La. 1999)(holding same).
The EEOC acknowledges that Rite Aid operates on a lean staffing
model.

(DSMF [49] at ¶¶ 5-9.)

There are generally only one or two

cashiers and a store manager or other supervisor on duty during any
given shift.

(Id. at ¶ 7.)

In addition to checking out customers at

the register, cashiers are responsible for a number of other customer
service and housekeeping duties, including unloading merchandise,
stocking shelves, cleaning, working in the photo lab, and assisting
customers with their shopping needs.
19

AO 72A
(Rev.8/82)

(Id. at ¶¶ 8-9, 30-52.)

To

fulfill those duties, cashiers are expected to productively work on
the sales floor any time they do not have a customer at the register.
(Id. at ¶¶ 31-32, 52.)
Given defendant’s business model, having a cashier sit idly for
half of her shift would necessarily cause productively and morale
issues.

(Id. at ¶¶ 31-32, 51.)

evidence

that

Strickland’s

And in fact, there is undisputed

sitting

operations in a number of ways.

interfered

with

defendant’s

Strickland admits that she: (1) did

not work in the photo lab, (2) only mopped the floor two or three
times during her entire Eckerd/Rite Aid employment, and (3) helped
stock only a small fraction of the store.
121-125, 165, 189-196.)

(Strickland Dep. at 103,

Store manager Jean and shift supervisor

Stacie Broussard testified that other Rite Aid employees became
frustrated by Strickland’s low productivity. (DSMF [49] at ¶¶ 81-87.)
During the accommodation investigation, Jean informed Sheffield more
generally that Strickland’s sitting was one of the reasons she was
struggling to maintain company standards at the store, and that other
employees in the store were having to assume Strickland’s duties.
(Id. at ¶¶ 116-117.)
The EEOC counters that the sitting accommodation is essentially
cost-free

because

defendant

can

Strickland

easily

absorb

purchased
any

her

impact

own

chair,

associated

and

that

with

the

accommodation because it is a large corporation with over 4,700 stores
20

AO 72A
(Rev.8/82)

and 80,000 employees.

(Pl.’s Resp. [68] at 9-10.)

These arguments

fail to account for the true cost of the accommodation and its impact
on the particular store where Strickland worked.

Every employee,

including Strickland, testified that the cashier job requires frequent
movement throughout the store in order to accomplish a variety of
tasks that are essential to the operations of the store.
at ¶¶ 31-51.)

(DSMF [49]

At any given time, there are only one or two cashiers

who are available to perform the required work.

(Id. at ¶ 7.)

While

Strickland is sitting, the work is either being done solely by one
person or not being done at all. Defendant’s size does not ameliorate
the impact of that arrangement on the productivity and morale of the
Jones Bridge store.
Strickland’s

Specifically

productivity,

the

EEOC

attributes

addressing

any

problems

to

defendant’s failure to properly manage and supervise Strickland rather
than

the

sitting

accommodation.

(Pl.’s

Resp.

[68]

at

11-13.)

According to the EEOC, Strickland could productively work with the
sitting accommodation if defendant’s management merely assigned more
work to her.

(Id. at 13.)

But again, most of the tasks that could be

assigned to Strickland require movement throughout the store.
[49] at ¶¶ 31-51.)
every

hour

that

Assuming that Strickland must sit for half of

she

works,

it

is

unreasonable

to

additional assignments would improve her productivity.

21

AO 72A
(Rev.8/82)

(DSMF

expect

that

As indicated above, Strickland’s requested sitting accommodation
is inconsistent with many of the essential functions of the cashier
position,

and

with

the

general

expectation

that

cashiers

work

productively on the sales floor when they do not have a customer at
the register. (Id.) Providing the accommodation essentially requires
that defendant pay Strickland for twice the hours that she actually
works while assigning many of her responsibilities to other employees.
(Id.)

As such, the accommodation meets the definition of “undue

hardship” under the ADA.

42 U.S.C. § 12111(10)(A).

F. Supp. at 1052 and Pate, 34 F. Supp. 2d at 417.

See also Dey, 957

For this additional

reason, the Court GRANTS defendant’s motion for summary judgment [49]
on plaintiff’s accommodation claim and DENIES the EEOC’s motion for
summary judgment [53] on the undue hardship issue.
B.

Disparate Treatment

The McDonnell Douglas burden shifting framework is applicable to
the EEOC’s disparate treatment claim.3
Serv. Co.,

See Collado v. United Parcel

419 F.3d 1143, 1149-1150 (11th Cir. 2005) (applying

McDonnell Douglas to an ADA case involving circumstantial evidence).
Under

this

framework,

the

EEOC

3

initially

has

the

burden

of

The McDonnell Douglas framework is inapplicable to the EEOC’s
accommodation claim because that claim does not require an inquiry
into the subjective issue of defendant’s motivation and intent.
Nadler, 2007 WL 2404705, at *8-9 and Wright v. Hosp. Auth. of Houston
Cnty., 2009 WL 274148, at *7 (M.D. Ga. 2009)(applying Nadler).
22

AO 72A
(Rev.8/82)

establishing

a

prima

facie

case

of

disability

discrimination.

Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th
Cir. 2004) (citing Wascura v. City of S. Miami, 257 F.3d 1238, 1242
(11th Cir. 2001)). Assuming the EEOC is successful, the burden shifts
to defendant to articulate a legitimate, nondiscriminatory reason for
its

adverse

employment

termination.

Id.

decision,

in

this

case

Strickland’s

To survive summary judgment, the EEOC must then

produce some evidence that defendant’s articulated reason is “unworthy
of credence” and a pretext for discrimination.

Id.

To establish a prima facie case of discrimination under the ADA,
the EEOC must at the very least show that Strickland (1) has a
disability and (2) is “qualified” for her position. Carruthers v. BSA
Adver., Inc., 357 F.3d 1213, 1215 (11th Cir. 2004).

Pursuant to the

above analysis, the EEOC cannot make out a prima facie case of
disability discrimination here because Strickland is not “qualified”
for her job.

That is, the EEOC has presented no evidence that

Strickland can perform all of the essential functions of the job with
or without a reasonable accommodation.
and

Davis,

205

F.3d

at

1305.

See Lucas, 257 F.3d at 1255

Accordingly,

the

Court

GRANTS

defendant’s motion for summary judgment [49] on the EEOC’s disparate
treatment claim.
Moreover, the undisputed evidence shows that defendant terminated
Strickland because she was unable to do the essential functions of the
23

AO 72A
(Rev.8/82)

cashier job.

See Quitto v. Bay Colony Golf Club, Inc., No. 2:06-cv-

286-FtM-29DNF, 2007 WL 2002537, at *10 (M.D. Fla. 2007)(an employer
had a legitimate, nondiscriminatory reason for terminating a disabled
employee who could no longer perform the essential functions of his
job) and White v. Georgia Dep’t of Motor Vehicle Safety, No. Civ. A.
104CV0790JOF, 2006 WL 89856, at *7 (N.D. Ga. 2006)(Forrester, J.) (the
inability to perform an essential job function is a legitimate,
nondiscriminatory reason for termination).

Specifically, defendant

terminated Strickland as a result of its determination that Strickland
has a permanent medical need to sit for at least half of every hour
that she works, but that she cannot perform the essential functions of
the cashier job while she is seated.
135 and 161-164.)

(DSMF [49] at ¶¶ 115-117, 131-

The EEOC does not present any evidence of pretext

to rebut defendant’s legitimate reason for terminating Strickland.
Accordingly, and for this additional reason, defendant’s motion for
summary judgment [49] on the EEOC’s disparate impact claim is GRANTED.
CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s Motion
for Summary Judgment [49] and DENIES the EEOC’s Motion for Partial
Summary Judgment [53].

The clerk is directed to CLOSE this case.

24

AO 72A
(Rev.8/82)

SO ORDERED, this 1st day of July, 2012.

/s/ Julie E. Carnes
JULIE E. CARNES
UNITED STATES DISTRICT JUDGE

25

AO 72A
(Rev.8/82)