CARTER v. FAMILY VIDEO MOVIE CLUB, INC.

Filing 60

ENTRY - Mr. Carter has shown that there are disputes of material fact that would preclude summary judgment on his ADA claim for failure to hire at the Rockville Store. He has demonstrated that he can meet the definition of a "qualified individ ual" under the ADA, and Mr. Carter has presented evidence that Family Video's proffered reason for not hiring him was pretext for discrimination. For the forgoing reasons, Family Video's Motion for Summary Judgment (Dkt. 38 ) is GR ANTED with respect to the claim for failure to hire based only upon his expressed interest in working at the Raceway Store, and DENIED with respect to the claim at the Rockville Store. The parties are directed to contact the Magistrate Judge to discuss rescheduling of the settlement conference, final pretrial conference and trial date. (See Dkt. 59 ). Signed by Judge Tanya Walton Pratt on 8/2/2013. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MICHAEL CARTER,
Plaintiff,
v.
FAMILY VIDEO MOVIE CLUB, INC. doing
business as FAMILY VIDEO,
Defendant.

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) Case No. 1:12-cv-00108-TWP-MJD
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ENTRY ON MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Defendant Family Video Movie Club, Inc.’s (“Family
Video”) Motion for Summary Judgment (Dkt. 38). Plaintiff Michael Carter (“Mr. Carter”)
claims that Family Video violated the Americans with Disabilities Act of 1990, 42 U.S.C. §§
12101-12113, as amended by the ADA Amendments Act of 2008, Pub. L. No. 110-325, §
2(b)(1) (collectively, “ the ADA”) by failing to hire him as a Customer Service Representative.
For the reasons set forth below, Family Video’s Motion for Summary Judgment is GRANTED
in part and DENIED in part.
I. BACKGROUND
The following material facts are not in dispute and are viewed in the light most favorable
to Mr. Carter as the non-moving party. See Luster v. Ill. Dep’t of Corrs., 652 F.3d 726, 728 (7th
Cir. 2011). Family Video operates a chain of more than 750 video rental stores across nineteen
states, including Store #245, located at 7301 Rockville Road, Indianapolis, Indiana (“the
Rockville Store”), and Store #199, located at 9250 West 10th Street, Indianapolis, Indiana (“the
Raceway Store”). Mr. Carter was a regular customer of the Raceway Store. Following a tragic

automobile accident in October 2001, Mr. Carter was diagnosed with T4-5 paraplegia and is
permanently paralyzed, which requires him to use a wheelchair.
A.

Family Video’s Hiring & Employment Practices
Family Video is not a franchisor; rather, the company owns all of its stores directly and

employs all of the individuals who work in its stores. Employees hired at one Family Video
store frequently pick up shifts at other Family Video locations, and when a Family Video store
becomes short-staffed, employees from other stores will help out. Employees also transfer for
promotional opportunities, to help train staff at other locations, or for personal reasons.
However, hiring decisions are made independently at each location.
Family Video places a heavy emphasis on customer service, which is addressed
throughout its Employee Handbook. Family Video believes its commitment to customer service
provides a competitive advantage over “no service” video rental options, such as Netflix and
Redbox. To carry out this goal, Family Video places an emphasis on hiring “friendly, intelligent,
positive people, then giv[ing] them the ability to think and solve problems.” Dkt. 39-3 at 8. In
addition to their customer service responsibilities, all Family Video employees are required to
perform a variety of operational and maintenance functions in the store, including checking out
customers, processing applications for memberships, handling customer service issues, giving
store tours, returning videos to the walls and shelves, conducting inventory, cleaning the store
and restrooms, taking out the trash, keeping the parking lot clear, and changing light bulbs when
they burn out. During certain times, Family Video stores may be staffed with only one employee
who must be able to perform all of these tasks.
Family Video’s interviewing and hiring policies are set forth in a document called the
S.T.A.R. Binder. The S.T.A.R. Binder indicates that interviews should be conducted in two

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phases. Phase one includes biographical questions on topics such as school, family, and free
time, and is intended to give the interviewer the opportunity to assess whether the applicant has
the six “Qualities a Person Should Have.” The six qualities outlined in the S.T.A.R. Binder
include 1) friendly; 2) outgoing; 3) sensitive; 4) ambitious; 5) energetic; and 6) good appearance.
The first phase of the interview is considered the “meet and greet” interview, and typically lasts
between five and ten minutes. The interview is designed to allow the store manager to assess the
candidate’s work ethic, friendliness, self-motivation, enthusiasm, communication skills, and
other qualities that Family Video believes are important to provide good customer service. If the
candidate displays the qualities the manager has been trained to look for, the manager may
extend the “meet and greet” into a phase two full interview; if not, the manager is trained to end
the interview after the phase one questions. The applicant will not receive further consideration
for employment, and the manager typically informs the applicant that Family Video is still
interviewing other candidates. If an applicant does satisfactorily display the six qualities during
the interview process, the next step in the hiring process is for the applicant to take a general
clerical test. If the applicant passes the clerical test, Family Video checks the applicant’s
references, followed by a final interview with the District Manager who makes all final hiring
decisions in the district.
Family Video requires everyone interested in working in one of its stores to fill out an
application for that store. The Rockville and Raceway Stores accept electronic applications,
either through Family Video’s website or by using the kiosk located in each store. Each
application is reviewed by a member of the store management, and a manager will typically
contact applicants he or she wants to interview within a day or two to schedule an initial “meet
and greet” interview in the store. Family Video calls a high percentage of applicants into the

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stores for “meet and greet” interviews; however, only a small percentage of applicants pass the
“meet and greet” interview phase.
B.

Mr. Carter’s Application to Family Video
From 1992 until approximately 2002, Mr. Carter was employed in the furniture rental

business in the areas of delivery, sales and customer service.

After the 2001 automobile

accident, Mr. Carter was absent from the workforce for several years.

In anticipation of

rejoining the workforce, Mr. Carter completed training in the job interview process through
Crossroads Rehabilitation Center.
Since 2006, Mr. Carter has been a frequent customer of the Raceway Store location and
has had numerous casual conversations with the Raceway Store manager, Phil Scott (“Mr.
Scott”). During one of his regular visits to the Raceway Store in January 2010, Mr. Carter had a
conversation with Mr. Scott and inquired about applying to work as a part-time Customer
Service Representative. Mr. Scott did not direct Mr. Carter to apply online or at the store’s
application kiosk, but instead informed Mr. Carter that he would not be able to work at the
Raceway Store because “you have to be able to change light bulbs.” Assuming this comment
was an isolated incident, Mr. Carter submitted an online application for a position at the
Rockville Store on February 18, 2010. His application indicated that he was seeking a part-time
position at the Rockville Store, and that he had not previously applied to a Family Video store.
Jennifer Heilman, the assistant manager at the Rockville Store, reviewed Mr. Carter’s
application, and on February 19, 2010, Ms. Heilman scheduled him for a “meet and greet”
interview with store manager Amanda Watson (“Ms. Watson”).
On February 24, 2010, Mr. Carter arrived at the Rockville Store in his wheelchair for the
interview. When Mr. Carter informed Ms. Watson that he was there for his interview, her jaw

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dropped and she responded, “okay, nice to meet you.” Ms. Watson reviewed Mr. Carter’s
application for the first time on the day of the interview and noticed that it contained several
typographical errors and that he had an eight year gap in his employment history. Ms. Watson
directed him to the game room where there were not many customers, as Family Video stores do
not have offices or break rooms in which to conduct interviews. Ms. Watson asked Mr. Carter a
series of basic interview questions, including about his first job, school, home life, and greatest
accomplishment. Mr. Carter admits that he was very quiet during the interview, and gave brief
responses to Ms. Watson’s questions, in part because the interview was being conducted in the
game area where customers were present. After about five minutes, Ms. Watson concluded the
interview by informing Mr. Carter that Family Video was still interviewing candidates and
would contact those individuals it was interested in pursuing further in a few days. On that same
day, Ms. Watson indicated on Mr. Carter’s electronic application that he would not be hired
based upon his interview and noted “very quiet, hardly smiled” in the comment section of his
application. Several days after his interview, Mr. Carter called the Rockville Store to follow-up
on his application. At the time, Ms. Watson falsely told Mr. Carter that someone had transferred
from another store and they were no longer seeking new employees at the Rockville Store.
However, Family Video subsequently hired Brooke Redford in April 2010 based upon the
friendly and enthusiastic personality that she displayed during her interview and her good
appearance. Additional facts will be addressed below as necessary.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate if “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

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party is entitled to a judgment as a matter of law.” Hemsworth v. Quotesmith.Com, Inc., 476
F.3d 487, 489–90 (7th Cir. 2007). In ruling on a motion for summary judgment, the court
reviews “the record in the light most favorable to the nonmoving party and draw[s] all
reasonable inferences in that party’s favor.” Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir.
2009) (citation omitted). However, “[a] party who bears the burden of proof on a particular issue
may not rest on its pleadings, but must affirmatively demonstrate, by specific factual allegations,
that there is a genuine issue of material fact that requires trial.” Hemsworth, 476 F.3d at 490
(citation omitted). “In much the same way that a court is not required to scour the record in
search of evidence to defeat the motion for summary judgment, nor is it permitted to conduct a
paper trial on the merits of a claim.” Ritchie v. Glidden Co., 242 F.3d 713, 723 (7th Cir. 2001)
(citation and internal quotations omitted). “[N]either the mere existence of some alleged factual
dispute between the parties . . . nor the existence of some metaphysical doubt as to the material
facts . . . is sufficient to defeat a motion for summary judgment.” Chiaramonte v. Fashion Bed
Grp., Inc., 129 F.3d 391, 395 (7th Cir. 1997) (citations and internal quotations omitted).
III. DISCUSSION
Mr. Carter claims that Family Video discriminated against him based upon his disability
by failing to give him fair consideration for employment opportunities at the Raceway Store, and
refusing to hire him at the Rockville Store because he is in a wheelchair.

Unlawful

discrimination under the ADA includes discrimination on the basis of disability with regard to
job application procedures, hiring, and the failure to provide reasonable accommodation. 42
U.S.C. § 12112(a), (b)(5)(A). In order to challenge such activity under the ADA, the plaintiff
must meet the definition of a “qualified individual with a disability.” 42 U.S.C. § 12112(a); see
also 29 C.F.R. § 1630.4; Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir.

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1996). Family Video argues that Mr. Carter cannot establish a prima facie case for failure to hire
at the Raceway Store because he never filled out an application for that store, and the failure to
hire him at the Rockville Store was not for discriminatory reasons.
In order to defeat summary judgment on his ADA claim, Mr. Carter must establish
discrimination using either the direct or indirect methods. Dickerson v. Bd. of Trs. of Cmty. Coll.
Dist. No. 522, 657 F.3d 595, 601 (7th Cir. 2011). Under the direct method, the plaintiff can
present either direct evidence of discrimination, which requires an admission by the decision
maker that his or her actions were based upon discriminatory animus, or by presenting
circumstantial evidence that would allow a jury to infer intentional discrimination. Id. Under
the indirect method of proof, a plaintiff must establish a prima facie case of discrimination by
showing: 1) he is a member of a protected class; 2) he applied for and was qualified for an open
position; 3) he was rejected for the position; and 4) the position was filled with a person not in
the protected class who had similar or lesser qualifications than the plaintiff. Grigsby v. LaHood,
628 F.3d 354, 358 (7th Cir. 2010). The burden then shifts to the defendant to articulate a
legitimate, non-discriminatory reason for not hiring the plaintiff. Id. Once this burden is met,
the plaintiff must prove that the employer’s stated reason is pretext for intentional discrimination.
Id. The Court will address each of Mr. Carter’s claims in turn.
A.

Failure to Hire at the Raceway Store
Mr. Carter asserts that he can bring a failure to hire claim against Family Video based

upon his conversation with Mr. Scott at the Raceway Store, despite acknowledging that he did
not fill out an actual application for a position at that location. This claim fails as a matter of law
because Mr. Carter never applied to the Raceway Store, and therefore could not have been
considered for employment. In order to bring a failure to hire discrimination claim, the plaintiff

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must actually apply for a position that requires an application to be considered for employment.
Loyd v. Phillips Bros., Inc., 25 F.3d 518, 523 (7th Cir. 1994). “If an employer has a ‘formal
system of posting job openings and allowing employees to apply for them,’ then the employee’s
failure to apply for an open position ‘would prevent [him] from establishing a prima facie case.’”
Coleman v. City of Chi., No. 02 C 4141, 2003 WL 22057018, at *6 (N.D. Ill. Sept. 4, 2003)
(quoting Box v. A & P Tea Co., 772 F.2d 1372, 1376 (7th Cir. 1985)). It is undisputed that
Family Video requires all prospective employees to submit an application to be considered for
employment, and Mr. Carter only submitted an application for a position at the Rockville Store.
Mr. Carter argues that he did not submit an application to the Raceway Store because he
believed it would have been futile. However, regardless of whether a plaintiff is discouraged
from applying for a position, an informal expression of interest in a position will not substitute
for an application for employment where the employer’s hiring process requires one. See
Mitchell v. Old Nat’l Bank, No. 3:07-cv-00167-RLY-WGH, 2010 WL 561804, at *6 (S.D. Ind.
Feb. 9, 2010) (“[A]llegations that an employer discouraged a plaintiff from applying for a
position and led her to believe she had no chance of getting the opening do not relieve an
employee from her obligation to show that she applied for the position.”); Wilkerson v. Menard,
Inc., No. 2:08-cv-0026, 2009 WL 1011099, at *6 (N.D. Ind. Apr. 15, 2009) (plaintiff could not
maintain failure to hire action when she had not formally applied for the position despite clearly
expressing interest); Russell v. Eli Lilly & Co., No. TH01-0160-C T/H, 2002 WL 31427441, at
*2 (S.D. Ind. Oct. 16, 2002) (“Plaintiff testified she did not apply for other positions because she
was discouraged and believed she had no chance of being promoted. The failure to apply is fatal
to any claim based on a failure to promote to such other positions.”); cf. Lloyd, 25 F.3d at 523
(application not required where promotion recommendations were made upon the initiative of

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the company). Additionally, Mr. Carter’s statement that he believed that Mr. Scott’s comment
was a one-time occurrence, leading him to apply at another Family Video location, does not
demonstrate that Family Video had a known policy of not hiring disabled applicants. Cf.
E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1275 (11th Cir. 2002) (futility doctrine
applied where restaurant had known policy in the community of only hiring male servers).
Therefore, Mr. Carter cannot bring a claim for failure to hire based only upon his expressed
interest in working at the Raceway Store, or his belief that an application at the Raceway Store
would have been futile based upon Mr. Scott’s comment. Family Video’s motion is GRANTED
on this claim.
B.

Failure to Hire at the Rockville Store
Next, Mr. Carter argues that he can establish a prima facie case of disability

discrimination for Family Video’s failure to hire him at the Rockville Store location.

To

establish a prima facie case under the ADA in a failure to hire case, a plaintiff must show: (1)
that he is a disabled person within the meaning of the ADA; (2) that he is qualified, that is, he is
able to perform the essential functions of the job, with or without reasonable accommodation;
and (3) that the employer failed to hire him under circumstances which give rise to an inference
that the failure to hire was based on his disability. See Morgan v. Hilti, 108 F.3d 1319, 1323
(10th Cir. 1997) (citations omitted).
There is no dispute that Mr. Carter can show that he was a member of a protected class
because he is in a wheelchair, that his application for employment at the Rockville Store was
rejected, and that Family Video filled the position with someone outside of his protected class
when it hired Brooke Redford for the position. However, the parties dispute whether Mr. Carter
can satisfy the second prong of his prima facie case and show that he was qualified for the

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Customer Service Representative position, which also calls into question whether Mr. Carter was
a “qualified individual” under the ADA.
1.

Is Mr. Carter a “qualified individual” under the ADA?

In order to receive protection under the ADA, an applicant must be a “qualified
individual.” A “qualified individual” is defined, in relevant part, as “an individual who, with or
without reasonable accommodation, can perform the essential functions of the employment
position that such individual holds or desires.” 42 U.S.C. § 12111(8). Whether someone meets
the definition of a “qualified individual” under the ADA involves a two-step determination. 29
C.F.R. app. § 1630.2(m).

First, the court considers whether the individual “satisfies the

prerequisites for the position, such as possessing the appropriate educational background,
employment experience, skills, licenses, etc.”

Id.

The ADA does not shelter disabled

individuals from adverse employment actions “if the individual, for reasons unrelated to his
disability (such as a poor work ethic . . . or unprofessional demeanor), is not qualified for the job
or is unable to . . . fulfill the requirements of the position as prescribed by the employer.”
Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 862 (7th Cir. 2005) (emphasis in original).
If the individual satisfies these requirements, then the court must consider “whether or not the
individual can perform the essential functions of the position held or desired, with or without
reasonable accommodation.” 29 C.F.R. app. § 1630.2(m). The determination as to whether an
individual is a “qualified individual” must be made as of the time of the employment decision.
Id. The plaintiff bears the burden of proof on this issue; he must be able to show that he is a
“qualified individual with a disability” in order to successfully prosecute an ADA claim.
Bombard, 92 F.3d at 563 (citing DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995)).

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In determining whether an applicant is qualified for a position, consideration is given to
the employer’s judgment as to what functions of the job are “essential,” and an employer’s
written description of the job prepared before advertising the position or interviewing applicants
is considered evidence of the essential functions of the job. 42 U.S.C. § 12111(8). “An
employer may define the job in question, ‘in terms of both its essential scope and the
qualifications required for it,’ . . . as long as such qualifications are ‘job-related and consistent
with business necessity.’” Lawson v. CSX Transp., Inc., 245 F.3d 916, 929 (7th Cir. 2001)
(quoting Bay v. Cassens Trans. Co., 212 F.3d 969, 974 (7th Cir. 2000)) (additional citations
omitted).
With respect to the position at the Rockville Store, Family Video asserts this claim fails
because Mr. Carter cannot show that he was qualified for the position. Family Video says Mr.
Carter was not hired because he did not display an “enthusiastic and outgoing personality” that it
expects of all of its employees. Mr. Carter does not dispute the fact that Family Video heavily
emphasizes customer service, and that it is Family Video’s policy to hire friendly, enthusiastic
and outgoing individuals. This requirement is stated throughout Family Video’s Employee
Handbook and in the S.T.A.R. Binder, and was established well before Mr. Carter applied for the
Customer Service Representative position. Dkts. 39-3 at 2-29; 46-6 at 10. At the time of Mr.
Carter’s interview, Ms. Watson noted on his application that he was “very quiet and hardly
smiled”. In his deposition testimony, Mr. Carter confirmed that he was indeed quiet. Dkts. 39-6
at 4; 39-11 at 45, 43:14-20. However, he says was quiet because the interview was held in the
game room and Mr. Carter did not want the store’s customers to overhear his interview,
especially when answering personal questions about his family.

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Family Video has demonstrated that a friendly, outgoing personality is essential to the job
of Customer Service Representative, and there is a business necessity for such a requirement.
But the Court is not convinced that Mr. Carter is not a “qualified individual” able to perform the
duties of a customer service representative. Afterall, the circumstances of the interview being
held in the game room were hardly conducive to smiling or speaking loudly. Mr. Carter asserts
that during his interview, a customer actually bumped into the back of his wheelchair. Dkt. 39-1
at 43. Mr. Carter says he possesses the requisite skills and experience necessary for the job and
disputes that he lacks a friendly and outgoing personality. Before his disabling accident, Mr.
Carter had almost 10 years of experience as a customer service representative and he had
recently completed training at Crossroads Rehabilitation Center to hone his interview and work
skills.
As for the second inquiry, whether Mr. Carter can, despite his impairments, perform the
essential functions of the job either with or without reasonable accommodations, the Court
believes a reasonable jury could conclude that he can. If Mr. Carter is required to change light
bulbs, a reasonable accommodation can be made as he can use an assisting device. Further, Ms.
Watson herself testified that she believed Mr. Carter could perform the functions of the job with
accommodation. (Watson Dep. 74:5-13).

Applying the two-step analysis, Mr. Carter has

presented sufficient evidence that he is “qualified” for the customer service position and a
reasonable accommodation would enable him to perform all of the essential functions of the
position.

The record establishes contested facts as to whether Mr. Carter was a qualified

individual. Based on these factors, the Court finds Mr. Carter has presented evidence that he is a
“qualified individual” under the ADA, and he has satisfied the second prong of his prima facie
case.

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2.

Has Mr. Carter has shown that Family Video’s proffered reason is pretext?

Mr. Carter must next show by a preponderance of the evidence that Family Video’s
proffered reason for its failure to hire him was pretext for discrimination. A plaintiff may
establish pretext by proving one of the following: “(1) the proffered reasons are factually
baseless; (2) the proffered reasons were not the actual motivation for the [adverse action]; or (3)
the proffered reasons were insufficient to motivate the [adverse action].” Wolf v. Buss (Am.),
Inc., 77 F.3d 914, 919 (7th Cir. 1996). Family Video’s stated reason for its failure to hire Mr.
Carter was due to his demeanor during the meet and greet interview. As stated above, Mr. Carter
does not dispute that he was quiet nor does he dispute that Family Video places a strong
emphasis on its employees being outgoing and friendly as an essential part of the Customer
Service Representative position. Mr. Carter argues that other circumstances prove that Family
Video’s proffered reason was not the actual motivation for its failure to hire him.
First, he argues that Mr. Scott’s statement regarding his inability to work at the Raceway
Store because he could not change light bulbs is evidence of discriminatory animus. However, a
remark revealing discriminatory animus can only create an inference of discrimination if it was
made by the decision-maker around the time of the decision and referred to the challenged
employment action; if not, the plaintiff must establish that the person who made the comment
had the ability to influence the decision. Mach v. Will Cnty. Sheriff, 580 F.3d 495, 499 (7th Cir.
2009). Mr. Carter has not shown that Mr. Scott had any influence on Ms. Watson’s decision not
to further interview Mr. Carter, and the comment was made several weeks before Mr. Carter
applied to the Rockville Store. Dkt. 39-11 at 56-57, 55:14 – 56:4.
Second, Mr. Carter argues that Ms. Watson conducted his interview differently from
other applicants, as he felt rushed during his interview. However, according to Family Video’s

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interviewing and hiring policies in the S.T.A.R. Binder, managers are trained to end the
interview after the first few biographical questions if the interviewee does not display the desired
qualities, which typically takes about five to ten minutes. Dkts. 39-2 at 5, ¶15; 39-9 at 23, 22:1825; 46-2 at 7. Mr. Carter stated that his interview lasted about five or six minutes, during which
he was “trying to be a little bit quiet during the interview, as to not interrupt the customers that
were in the area” and he did not want to vocalize his personal business. In accordance with
Family Video’s policies, Ms. Watson says she was to terminate the interview. Aside from
speculation regarding Ms. Watson’s demeanor during the interview, Mr. Carter has not shown
that there were any differences between his interview and interviews conducted with applicants
outside of his protected class, nor does he even know whether his interview was actually
conducted differently than non-disabled applicants. Dkt. 39-11 at 65-66, 85:12 – 86:5.
Finally, Mr. Carter alleges that Family Video’s proffered reason for not hiring him was
pretext and insufficient to justify the adverse action. Family Video maintains that Mr. Carter’s
poor performance at the interview, not his wheelchair, made him undesirable for the position.
Poor performance at an interview has been held to be a legitimate basis for failure to hire or
promote, and the Seventh Circuit has stated that the court does not sit as a “superpersonnel
department that reexamines an entity’s business decisions.” Baron v. City of Highland Park, 195
F.3d 333, 341 (7th Cir. 1999) (quoting Lindemann v. Mobil Oil Corp., 141 F.3d 290, 300 (7th
Cir. 1998)). Courts cannot force an employer to hire an applicant that does not meet its needs.
Id.
But, because the employer’s motive and intent are at the heart of a discrimination case,
the central inquiry “is whether [disability] was a factor in the employment decision at the
moment it was made.” E.E.O.C. v Wal-Mart Stores, Inc., 477 F.3d 561, 570 (8th Cir. 2007)

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(emphasis in original). According to Family Video, Mr. Carter did not display the qualities that
they seek in its employees during his interview for the Rockville Store position, despite his
assertions that he received interview training and performed well in interviews with other
companies. As evidence of pretext, Mr. Carter asserts that Ms. Watson’s untruthfulness when
she told him the position had been filled when it had not, and that Family Video had hired from
within demonstrates a discriminatory motive. “A showing by the plaintiff that his employer lied
about the reason for its action may support an inference that the employer’s real motive was
discriminatory.” Onuorah v. Kmart Corp., 102 F. Supp. 2d 992, 996 (S.D. Ind. 1999) (citing
Jackson v. E.J. Brach Corp., 176 F.3d 971, 984 (7th Cir. 1999)). Because a fact-finder may infer
intentional discrimination in violation of ADA from an employer’s untruthfulness, “evidence that
calls truthfulness into question precludes a summary judgment.” Cleveland v. Prairie St. Coll.,
208 F. Supp. 2d 967, 983 (N.D. Ill. 2002) (citing O’Neal v. City of New Albany, 293 F.3d 998,
1005 (7th Cir. 2002)).
Mr. Carter also points out that Ms. Redford, an applicant outside of the protected class,
submitted an online application which contained as many typographical errors as his application.
Additionally, Ms. Watson indicated the eight year gap in Mr. Carter’s work history was cause for
concern regarding his experience; however Ms. Redford’s application shows that she had very
minimal experience having previously worked for only four months at a Victoria’s Secret store
and eight months at a Wal-Mart store. Family Video says Ms. Redford was hired based on her
appearance and demeanor during her interview. She is described in the Applicant Log as “NICE
LOOK. BRIGHT AND CHEERY.” Mr. Carter asserts that Family Video’s focus on physical
appearance as criteria for the Customer Service Representative position—in particular the
emphasis that employees should “stand straight and tall” and “walk with a purpose”—influenced

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Ms. Watson’s decision to not allow him to proceed to the next step in the interview process. He
argues a reasonable jury could find Family Video’s focus on appearance in the hiring decision
for the position to be a pre-textural rationalization for not hiring a disabled person confined to a
wheelchair. Additionally, Mr. Carter stated that Ms. Watson had a shocked expression and her
“jaw dropped” upon seeing him arrive for his interview in his wheelchair, which he asserts is
evidence of discriminatory intent. While the Seventh Circuit has held that demeanor evidence
alone does not create an inference of discriminatory motive, Grigsby, 628 F.3d at 358, it is still
circumstantial evidence that a jury could consider in determining whether the Family Video’s
stated reasons for not hiring him were pretext for discrimination.
Mr. Carter has demonstrated sufficient evidence from which a jury could find that Family
Video’s proffered reasons for not hiring him were pretext for discrimination. While the alleged
discriminatory actions separately may not rise to the level of pretext, based on the totality of
circumstances, a reasonable jury should be allowed to determine whether Mr. Carter’s demeanor
– his failure to smile, and speak loudly – were the actual motive for Family Video’s decision to
not proceed with his interview process or to hire Mr. Carter as a part-time Customer Service
Representative. Summary judgment on this claim is therefore DENIED.
IV. CONCLUSION
Mr. Carter has shown that there are disputes of material fact that would preclude
summary judgment on his ADA claim for failure to hire at the Rockville Store.

He has

demonstrated that he can meet the definition of a “qualified individual” under the ADA, and Mr.
Carter has presented evidence that Family Video’s proffered reason for not hiring him was
pretext for discrimination. For the forgoing reasons, Family Video’s Motion for Summary
Judgment (Dkt. 38) is GRANTED with respect to the claim for failure to hire based only upon

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his expressed interest in working at the Raceway Store, and DENIED with respect to the claim
at the Rockville Store.
The parties are directed to contact the Magistrate Judge to discuss rescheduling of the
settlement conference, final pretrial conference and trial date. (See Dkt. 59).

SO ORDERED.
08/02/2013
Date: _____________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Quincy Erica Sauer
MACEY SWANSON & ALLMAN
[e-mail]

Michael L. Mulhern
WINSTON & STRAWN, LLP
[e-mail]

Barry A. Macey
MACEY SWANSON AND ALLMAN
[e-mail]
Brian L. McDermott
OGLETREE, DEAKINS, NASH, SMOAK & STEWART
[e-mail]
Daniel J. Fazio
SEYFARTH SHAW LLP
[e-mail]
Jonathan E. Rosemeyer
WINSTON & STRAWN, LLP
[e-mail]

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