Adigun v. Express Scripts, Inc.
Filing
80
ORDER denying Plaintiff Loretta C. Adigun's 71 Motion for Reconsideration re 69 Order on Motion for Reconsideration ; granting Defendant's 73 Motion for Summary Judgment. The Clerk is DIRECTED to enter the appropriate judgment and close this case. Signed by Judge Lisa G. Wood on 11/21/2017. (ca)
|[it tj^e dititteii
Idisstrtct Court
for tl^e ^ontl^rti ISiotrict of 4leorgia
PnttiObiftk IBttiioion
LORETTA C. ADIGUN,
Plaintiff,
2:16-CV-39
V.
EXPRESS SCRIPTS, INC.,
Defendant.
ORDER
Presently before the Court are Defendant Express Scripts,
Inc.'s Motion for Summary Judgment (Dkt. No. 73) and Plaintiff
Loretta C. Adigun's Motion for Reconsideration (Dkt. No. 71).
These motions have been fully briefed and are ripe for review.
For the reasons stated below. Defendant's Motion is GRANTED, and
Plaintiff's Motion is DENIED.
BACKGRODND
Plaintiff Adigun sued Express Scripts, Inc. on March 21,
2016, and amended her complaint on June 13, 2016.
7.
Dkt. Nos. 1,
Adigun alleges that Defendant violated the Americans with
Disabilities Act (^^ADA") by denying her request for a reasonable
accommodation in the form of additional medical leave.
was diagnosed
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with coronary artery disease,
which
Id.
She
limits her
ability to breathe, walk, bend, and lift.
Dkt. No, 7 S3.
After Plaintiff suffered a heart attack on August 23, 2014, she
was on
Family and Medical Leave Act (^^FMLA") leave through
November 14, 2014.
paid
short-term
Dkt. No. 73-2, p. 146.
disability
leave
from
her
She also received
employer through
November 5, 2014, after being granted multiple extensions.
Dkt.
No. 73-2, 166:11-167:4, 176:1-7, 95:10-24.
While
the
parties
dispute
the
date
of
Plaintiff's
termination, they agree that she was employed at least until
February 25, 2015.
Dkt. No. 73-2, 75:18-20.
That same month,
Adigun applied for Social Security Disability Insurance C'SSDI")
benefits based on her heart attack.
Dkt. No. 66-1, p. 11.
In
that application. Plaintiff supplied, ^^No," next to ^*Now able to
work."
Id., p. 5.
The Social Security Administration (^'SSA")
determined that Plaintiff was disabled and granted her monthly
SSDI benefits, which she continues to receive (at least until
the time of her deposition in this case).
Dkt. No. 73-2, 229:9-
11, 234:12-14.
Plaintiff filed
a
motion for
Court on December 19, 2016.
motion
on
March
30,
2017,
summary judgment
Dkt. No. 21.
explaining
with this
The Court denied that
that
the
motion
premature because discovery had not been concluded.
49.
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Dkt. No.
Plaintiff then asked the Court to reconsider that denial in
a motion for reconsideration filed on April 20, 2017.
(Rev.8/82)
was
Dkt. No.
50.
The
Court
denied
that
motion/
too,
explaining
Plaintiff had not met the standards for reconsideration.
No. 58.
that
Dkt.
Plaintiff then filed a new motion for summary judgment
on May 22, 2017.
Dkt. No. 59.
This Court denied that motion,
too, on June 27, 2017, because discovery was not completed.
Dkt. No. 69.
A few days later, on July 3, 2017, Plaintiff filed
the
Motion
present
for
Reconsideration.
Discovery
is
now
complete.
LEGAL STAZIDAED
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 {1986)
.
To
satisfy this burden, the movant must show the court that there
is an absence of evidence to support the nonmoving party's case.
Id. at 325.
If the moving party discharges this burden, the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist.
257 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The nonmovant may satisfy this burden in two ways.
First, the nonmovant ^^may show that the record in fact contains
supporting evidence, sufficient to withstand a directed verdict
motion, which was ^overlooked or ignored' by the moving party,
who has thus failed to meet the initial burden of showing an
absence
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of evidence."
Fitzpatrick
v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at
332 (Brennan, J., dissenting)).
forward
with
directed
additional
verdict
motion
Second, the nonmovant ^'may come
evidence
at
evidentiary deficiency."
sufficient
trial
based
at 1117.
to
on
withstand, a
the
alleged
Where the nonmovant
instead attempts to carry this burden with nothing more *^than a
repetition of his conclusional allegations, summary judgment for
the defendants [is] not only proper but required."
Morris v.
Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).
DISCUSSION
I.
Defendant's Stmmary Judgment Motion
Defendant argues that it is entitled to summary judgment
because it is not Plaintiff's employer, that Plaintiff did not
request a reasonable accommodation from it, and that Plaintiff
is not a ^'qualified individual."
The Court takes up each
argument in turn in finding that Defendant's Motion should be
granted.
A. Iden'bity of Plaintiff's employer
A plaintiff may only bring an employment discrimination
claim—including a claim under the ADA—against her employer.
42
U.S.C. § 12111(2) & (4) ("MC]overed entity' means an
employer . . . .")
.
entity itself.
Parent companies of an entity are not the
Hegre v. Alberto-Culver USA, Inc., 508 F. Supp.
2d 1320, 1333-34 (S.D. Ga. 2007), aff'd 275 F. Appx. 873 (11th
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Cir. 2008) (dismissing an ADA claim against a parent entity who
was not the plaintiff's actual employer).
The undisputed evidence in this case shows that Express
Scripts, Inc. has never employed Plaintiff.
Defendant has
brought forth unrefuted proof that Plaintiff was employed by
Express Scripts Services Company.
In support of this
contention. Defendant points to Plaintiff's paychecks, IRS W-2
forms, earnings statements, and employment benefits, all of
which identify Express Scripts Services Company as Plaintiff's
employer.
Dkt. No. 73-3, pp. 8-13.
She cannot claim ignorance
of her employer's identity in light of all these documents
evidencing it with which she regularly interacted.
See Allocco
V. City of Coral Gables, 221 F. Supp. 2d 1317, 1359 (S.D. Fla.
2002), aff'd 88 F. Appx. 380 (11th Cir. 2003) (^^The plaintiffs
cannot justifiably claim ignorance of [their employer] when
their [] paychecks, IRS forms, and pension benefits
indicated . . . the employer responsible for paying their
salaries and conferring employment benefits).
Plaintiff argues that there does exist some evidence
showing that she was employed by Express Scripts, Inc. located
at 2603 Osborne Road, St. Marys, GA.
Dkt No. 76, pp. 19-20.
support of this argument, she points to the hire letter.
But
the hire letter merely refers to Plaintiff s employer as
^^Express Scripts."
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Dkt. No. 71-4.
As Defendant correctly
In
points out, this description is equally as likely to support
Defendant's contention as Plaintiff s-''Express Scripts" can
abbreviate Express Scripts, Inc. or Express Scripts Services
Company.
While the hire letter identifies her work site as 2603
Osborne Road, St. Marys, GA, it makes no mention of ''Express
Scripts, Inc."
Dkt. No. 71-4, pp. 1-2.
Plaintiff's argument
that she could not have been employed by Express Scripts Service
Company because she did not fly to Minnesota every day is
without merit.
Companies commonly have work sites at places
other than their headquarters.
Plaintiff knows this, as
evidenced by her identifying as Defendant in this action Express
Scripts, Inc., One Express Way, Saint Louis, MO 63121, while
contending that her work site was not in Saint Louis.
Dkt. No.
7.
Plaintiff points to the EEOC's Charge of Discrimination,
Exhibit 2.5, as evidence that Defendant acknowledged it was her
employer and that the EEOC found Defendant to be her employer<
Dkt. No. 76, pp. 20-21.
Discrimination.
Neither is evidenced by that Charge of
Dkt. No. 76-1, p. 20.
This was merely a form
Plaintiff filled out herself, identifying "Express Scripts Inc."
as her employer.
Id.
Neither the EEOC nor Defendant adopted
this finding on that form.
Id.
Plaintiff correctly points out that the issue of the proper
identity of her employer was reported in Defendant's Rule 26(f)
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report.
Dkt. No. 24, pp. 4, 13.
deny Defendant's motion.
But that is not a reason to
To the contrary, both the Defendant
and the Court have identified this issue for the Plaintiff, but-
she elected not to amend her Complaint to name the correct
entity.
See Dkt. No. 12, p. 1 n.l (''Defendant states that it
was never Plaintiff's employer . . . .
Defendant is willing to
accept an amended complaint, substituting the correct defendant,
or Defendant otherwise reserves the right to file an appropriate
motion seeking dismissal on these grounds."); Dkt. No. 32, p. 2
(setting deadline for motions to add parties in response to the
parties joint report).
There is no evidence that the entity
sued—Express Scripts, Inc.—employed Plaintiff.
There is
evidence that an entity not sued—Express Scripts Services
Company—employed Plaintiffs.
As such, the Defendant—Express
Scripts, Inc.-is entitled to summary judgment.
B. "Qualified" Individual
Even if Plaintiff had sued her actual employer, that
employer would be entitled to summary judgment because Plaintiff
is estopped from claiming to be a qualified individual.
provides a claim for "qualified individuals."
§ 12112(a).
The ADA
42 U.S.C.
A qualified individual is "an individual who, with
or without reasonable accommodation, can perform the essential
functions of the employment position" in question.
§ 12111(8).
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42 U.S.C.
In other words, if an individual cannot perform the
essential functions of the job, even with a reasonable
accommodation, then she is not qualified.
So, **a plaintiff who
is totally disabled and unable to work at all is precluded from
suing for discrimination" under the ADA.
Slomcenski v.
Citibank, N.A., 432 F.Sd 1271, 1280 (11th Cir. 2005).
This means that a plaintiff suing under the ADA must
grapple with any previous assertions that she is ^^unable to
work" that she made on an SSDI claim.
Cleveland v. Policy Mqmt.
Sys. Corp., 526 U.S. 795, 805-06 (1999).
The Eleventh Circuit
clarified that an ADA plaintiff may survive summary judgment
only by adequately explaining ^^why [her] claim to the [SSA] that
[she] was too disabled for work is consistent with [her] ADA
claim that [she] could perform the essential functions of the
job with reasonable accommodations."
Siudock v. Volusia Cnty.
Sch. Bd., 568 F. Appx. 659, 662-63 (11th Cir. 2014).
The
doctrine of judicial estoppel is ^Mesigned to prevent parties
from making a mockery of justice by inconsistent pleadings."
Talavera v. Sch. Bd. of Palm Beach Cnty., 129 F.3d 1214, 1217
(11th Cir. 1997).
In arguing that Plaintiff is judicially
estopped from pursuing her ADA claim in light of her assertions
to the SSA, Defendant points to her application for SSDI
benefits in which she supplied ^*No" after ^^Now able to work."
The Court finds that Defendant mischaracterizes this assertion
as one that Plaintiff was permanently unable to work rather than
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one that she was then unable to work.
In fact. Plaintiff
asserted in her application that she ^*hope[d] to be
rehabilitated in the future" and to '"return to work."
Dkt. No.
66-1, p. 11.
Nevertheless, she had a duty to update the SSA at such a
time as her disability improved—that is, at the very least, when
she regained her ability to work.
failed to do so.
Dkt. No. 73-8, p. 8.
She
Failure to inform the SSA that her medical
condition improved was an assertion that it had not improved.
Yet she asserts that she was able to work as of April 7, 2015.
Dkt. No. 59, p. 6.
If that were not enough, the inconsistency
is made further apparent by Plaintiff's response to her "Cardiac
Treatment Questionnaire" on May 16, 2015.
25.
Dkt. No. 73-8, p. 23,
Operating on Plaintiff's continued assertion that she was
unable
to
work,
the
questionnaire
condition kept her from working.
asked
Id. at 25.
Plaintiff
how
her
She did not take
her response as an opportunity to change her position and assert
that it did not but explained her "extreme endurance problem."
Id.
Plaintiff was approved to receive monthly SSDI benefits
beginning in February 2015 and has continued to receive them at
least through the time of her deposition on March 23, 2017.
Dkt. No. 73-2, 229:9-11, 234:12-14
Thus, Plaintiff represented and continues to represent to
the SSA that she is unable to work while simultaneously arguing
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to this Court that she can perform the essential functions of
the job in question.
She must explain this inconsistency in
order to avoid estoppel.
explanation.
But Plaintiff has offered no
Plaintiff's responsive.brief includes a- section
entitled ^^Qualified Individual under The Americans with
Disabilities Act."
Dkt. No. 76, p. 23.
But she presents no •
argument explaining the inconsistency that Defendant identified.
As a result, she is estopped from arguing that she is able
to work, and the Court finds that she therefore cannot provide
sufficient evidence that she is a qualified individual as
defined by the ADA.
II.
PlcdLntiff s Motion for Reconsideration
Plaintiff s latest Motion for Reconsideration is without
merit.
well.
Her underlying Motion for Summary Judgment lack merit as
Her Motions for Summary Judgment and Motions for
Reconsideration must be DENIED.
CONCLUSION
For the reasons stated above. Plaintiff Loretta C. Adigun's
Motion for Reconsideration (Dkt. No. 71) is DENIED.
Motion for Summary Judgment (Dkt. No. 73) is GRANTED.
Defendant's
The Clerk
of Court is DIRECTED to enter the appropriate judgment and close
this case.
10
so OBDEBED, this 21st day of November 2017.
HOl^
UNITED STATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
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