Thomas v. AT&T et al

Filing 45

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED, ADJUDGED and DECREED that Defendant Southwestern Bell Telephone Company's Motion for Summary Judgment [ECF No. 30 ] is GRANTED. IT IS FURTHER ORDERED that all claims against Defendant Southwestern Bell Telephone Company are DISMISSED, with prejudice. Signed by District Judge E. Richard Webber on 5/9/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MARNICE R. THOMAS,
Plaintiff,
v.
SOUTHWESTERN BELL TELEPHONE
COMPANY,
Defendant.

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No. 4:14-CV-01993 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Defendant Southwestern Bell Telephone Company’s
Motion for Summary Judgment [ECF No. 30].
I.

BACKGROUND

On October 15, 2014, Plaintiff Marnice R. Thomas (“Plaintiff”) filed a petition in the Circuit
Court of the County of St. Louis, Missouri, alleging AT&T and Pamela Nash discriminated
against her on the basis of her disability in violation of Missouri Revised Statutes §§ 213.055 and
213.070 [ECF No. 8]. On December 2, 2014, AT&T removed the case to this Court pursuant to
28 U.S.C. §§ 1332, 1441, and 1446 [ECF No. 1]. On December 16, 2014, the Court granted
AT&T’s motion to substitute improper defendant and Defendant Southwestern Bell Telephone
Company (“Defendant”) was added as the correct defendant [ECF No. 11].
Plaintiff’s Petition alleges her former supervisor, Pamela Nash, and Defendant retaliated
against her as a result of Plaintiff reporting Defendant to the Missouri Human Rights
Commission (“MHRC”) for disability discrimination. According to the Petition, in her charge of
discrimination, Plaintiff alleged her personal medical information was disclosed by Pamela Nash
to other employees and Plaintiff suffered from asthma and hypertension. ECF No. 8. Plaintiff

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also alleges she was constructively discharged after she was forced to leave due to harassment
from Pamela Nash and Defendant failed to accommodate her disability.
Defendant filed this Motion for Summary Judgment asserting Plaintiff did not
administratively exhaust her claims, she did not suffer an adverse employment action by
Defendant, and neither her asthma nor hypertension qualify as a disability, because they do not
substantially limit any major life activities.
A. Uncontroverted Facts
From May 18, 1999, until August 4, 2014, Plaintiff worked for Defendant as a service
representative. ECF Nos. 32, 34. During the period August 2011, until May 2013, Pamela Nash
was Plaintiff’s immediate supervisor. ECF Nos. 32, 34. Ms. Nash never issued any discipline to
Plaintiff, reduced her pay, changed her work hours, or changed her job duties. ECF Nos. 32, 34.
On May 17, 2013, Plaintiff filed a charge of discrimination against Defendant Southwestern
Bell. ECF Nos. 32, 34. Ms. Nash was not aware of this charge until after this lawsuit was filed.
ECF Nos. 32, 34. After a leave of absence, Plaintiff returned to work on June 12, 2013, and she
was assigned to a new manager, Gail Sanders, on a different floor of the building. ECF Nos. 32,
34. In October 2013, Ms. Nash was transferred to a different building than the one Plaintiff
occupied. ECF Nos. 32, 34.
On July 1, 2014, Plaintiff filed a second charge of discrimination against AT&T for disability
discrimination and retaliation with the Equal Employment Opportunity Commission (“EEOC”)
and MCHR. ECF Nos. 32, 34. In her charge, Plaintiff specified “retaliation” as the basis of her
claim. ECF Nos. 32, 34. Plaintiff asserted Ms. Nash made unwelcomed visits to her home and
unwanted phone calls in 2013. ECF Nos. 32, 34. Plaintiff further asserted Ms. Nash continued
the harassment and phone calls, and on June 15, 2014, made an unwelcomed visit to her home,

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all of which Plaintiff alleged was retaliation for her complaint of unlawful employment
practices. ECF Nos. 32, 34. Plaintiff also specified “disability” as the basis of her claim, and
stated “I believe I have been discriminated against due to my disability.” ECF Nos. 32, 34.
In the summer of 2014, all service representatives at Defendant’s location in Des Peres,
Missouri, were notified their positions were being eliminated and they could either quit with a
voluntary severance payment or attempt to find a different position within the company.1 ECF
Nos. 32, 24. On July 28, 2014, Plaintiff signed documentation accepting a voluntary severance
payment. ECF Nos. 32, 34. Plaintiff’s employment with Defendant ended on August 4, 2014.
ECF Nos. 32, 34. She was on leave from April 2014, until the end of her employment. ECF
Nos. 32, 34.
II.

STANDARD

A court shall grant a motion for summary judgment only if the moving party shows “there is
no genuine dispute as to any material fact and that the movant is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
By definition, material facts “might affect the outcome of the suit under the governing law,” and
a genuine dispute of material fact is one “such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the nonmoving party has failed to “make a showing sufficient to establish the existence of an element
essential to that party’s case, . . . there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the non-moving party’s case
necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.

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Plaintiff disputes she was notified in a timely manner she could find a different position within the company. ECF
Nos. 34, 42.

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The moving party bears the initial burden of proof in establishing “the non-existence of any
genuine issue of fact that is material to a judgment in his favor.” City of Mt. Pleasant, Iowa v.
Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). The moving party must show
that “there is an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S.
at 325. If the moving party meets this initial burden, the non-moving party must then set forth
affirmative evidence and specific facts that demonstrate a genuine dispute on that issue.
Anderson, 477 U.S. at 250. When the burden shifts, the non-moving party may not rest on the
allegations in its pleadings, but, by affidavit and other evidence, must set forth specific facts
showing that a genuine dispute of material fact exists. Fed. R. Civ. P. 56(c)(1); Stone Motor Co.
v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). To meet its burden and survive
summary judgment, the non-moving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). Instead, the non-moving party must demonstrate sufficient favorable
evidence that could enable a jury to return a verdict for it. Anderson, 477 U.S. at 249. “If the
non-moving party fails to produce such evidence, summary judgment is proper.” Olson v.
Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).
In ruling on a motion for summary judgment, the Court may not “weigh the evidence in the
summary judgment record, decide credibility questions, or determine the truth of any factual
issue.” Kampouris v. St. Louis Symphony Soc., 210 F.3d 845, 847 (8th Cir. 2000). The Court
instead “perform[s] only a gatekeeper function of determining whether there is evidence in the
summary judgment record generating a genuine issue of material fact for trial on each essential
element of a claim.” Id. The Court must view the facts and all reasonable inferences in the light

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most favorable to the nonmoving party. Reed v. City of St. Charles, 561 F.3d 788, 790 (8th Cir.
2009).
III.

DISCUSSION

Plaintiff asserts three claims in her Petition. ECF No. 8. The first is a claim of disability
discrimination on the basis Defendant did not accommodate Plaintiff’s medical condition. In her
second claim, Plaintiff alleges she was constructively discharged when she was not given a
timely option to pursue another job in the company. Plaintiff’s third claim alleges Ms. Nash
retaliated against her through Ms. Nash’s alleged harassment and stalking following Plaintiff’s
charge of discrimination against Defendant. Defendant argues Plaintiff did not suffer any adverse
event against her for purposes of retaliation, and the asthma and hypertension alleged in
Plaintiff’s Petition do not rise to the level of a disability and do not substantially limit any of
Plaintiff’s major life activities. Lastly, Defendant contends Plaintiff has failed to administratively
exhaust her claims.
A. Administrative Exhaustion
Plaintiff’s failure to accommodate her disability claim cannot succeed because Plaintiff has
failed to exhaust this claim in her charges of discrimination filed with the EEOC and MCHR.
“Exhaustion of administrative remedies is a condition precedent to the filing of a claim of failure
to accommodate under the ADA.” Evans v. Hardee's Food Sys., Inc., No. 4:12CV01675 ERW,
2013 WL 6732105, at *6 (E.D. Mo. Dec. 19, 2013) (citing McNeil v. Metro, 748 F.Supp.2d
1047, 1056 (E.D.Mo. Oct. 25, 2010); Mo. Rev. Stat. § 213.075. For exhaustion to be achieved,
the charges of discrimination must supply the employer with notice of the subject matter and the
basis of the claim. Evans, 2013 WL 6732105 at *6.

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A claimant must exhaust her administrative remedies by timely filing an administrative
complaint and either adjudicating the claim through the MCHR or EEOC or obtaining a right-tosue letter. Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994). Although
administrative claims are interpreted liberally, to deem administrative remedies exhausted,
Plaintiff’s claims in her petition must be “like or reasonably related to the allegations of the
[administrative] charge.” Tart, 31 F.3d at 671 (quoting Anderson v. Block, 807 F.2d 145, 148
(8th Cir.1986)). The judicial suit may be only “as broad as the scope of the [administrative]
‘investigation which could reasonably be expected to grow out of the charge of discrimination.’”
Id. (quoting Cobb v. Stringer, 850 F.2d 356, 359 (8th Cir. 1988)).
Here, similarly to Evans, Plaintiff’s July 2014 charge of disability discrimination to the
EEOC and MCHR, on which Plaintiff’s Petition is based, consists entirely of checking the box
marked “disability” and stating “I am a person with a disability” and “I believe I have been
discriminated against due to my disability…” ECF No. 32-4. Nowhere in the charge of
discrimination does Plaintiff identify her claim Defendant failed to accommodate her by not
relocating her to another building. Further, Plaintiff’s claim of failure to accommodate has
changed since the filing of her Petition. In her Petition, Plaintiff alleges her disability which was
not accommodated was asthma and hypertension. ECF No. 8. In her response to Defendant’s
Motion for Summary Judgment, Plaintiff is arguing her disability is adjustment disorder,
schizophrenia and dementia. ECF No. 34-2. None of these are mentioned in her charge of
discrimination before the MCHR and EEOC. Plaintiff’s failure to exhaust this claim resulted in
depriving the MCHR or EEOC of its opportunity to perform its investigatory role into the merits
of Plaintiff’s disability discrimination claims. See Evans, 2013 WL 6732105 at *7. Because

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Plaintiff has failed to administratively exhaust her failure to accommodate her disability claim,
the Court will grant summary judgment in favor of Defendant.
Likewise, Plaintiff’s July 2014 charge of discrimination does not allege any fact which would
notify the MCHR and EEOC and Defendant of Plaintiff’s constructive discharge on the grounds
Plaintiff advances in her Petition and Affidavit. ECF No. 32-4. It is impossible for Plaintiff’s
charge to have included this information as Plaintiff’s discharge post-dated the charge of
discrimination filed with the MCHR and EEOC. Further, Plaintiff’s reasoning for her
constructive discharge has changed since the filing of her Petition. In her Petition, Plaintiff
asserts she left her employment with Defendant due to the harassment by Ms. Nash and a failure
to accommodate her disability. ECF No. 8. In her response to Defendant’s Motion for Summary
Judgment, Plaintiff argues she was forced to leave because she was not given the opportunity to
sign up for the program to find a different position within the company. ECF No. 34-2. There
was no basis from which either of these claims could have grown from the MCHR or EEOC’s
investigation based on Plaintiff’s charge of discrimination filed with the MCHR and EEOC.
Plaintiff should have filed an additional charge with the MCHR or EEOC after she was allegedly
constructively discharged from the company. The Court finds summary judgment in favor of
Defendant on Plaintiff’s failure to accommodate claim and constructive discharge claim is
proper.
B. Retaliation Claims
Plaintiff’s second claim is for retaliation. Plaintiff alleges Ms. Nash retaliated against her
after she filed her initial charge of discrimination in 2013. Plaintiff states in her Response to
Defendant’s Statement of Uncontroverted Material Facts, she withdraws her claim for retaliation.
ECF No. 34. Additionally, Plaintiff makes no arguments in support of her retaliation claim, nor

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does she submit any facts in support of the claim. Therefore, the Court will dismiss Plaintiff’s
claim on the basis of retaliation.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED and DECREED that Defendant Southwestern
Bell Telephone Company’s Motion for Summary Judgment [ECF No. 30] is GRANTED.
IT IS FURTHER ORDERED that all claims against Defendant Southwestern Bell
Telephone Company are DISMISSED, with prejudice.
So Ordered this 9th day of May, 2016.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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