Denson v. Steak n' Shake, Inc.

Filing 36

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Steak 'n Shake's Motion for Summary Judgment 29 is GRANTED. A separate Judgment is entered this date. Signed by District Judge Catherine D. Perry on December 11, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GARRY DENSON,
Plaintiff,
vs.
STEAK ‘N SHAKE,
Defendant.

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Case No. 4:16 CV 1266 CDP

MEMORANDUM AND ORDER
Plaintiff Gary Denson has brought suit against his former employer, Steak ‘n
Shake. In his complaint, Denson alleges Steak ‘n Shake has discriminated against
him because he is disabled in violation of the Americans with Disabilities Act and
retaliated against him for exercising his rights under the Missouri Worker’s
Compensation statute. Steak ‘n Shake has moved for summary judgment on both
of Denson’s claims. Steak ‘n Shake argues Denson cannot establish a prima facie
case of discrimination under the ADA. Steak ‘n Shake also contends that because
Denson failed to oppose its basis for summary judgment with regard to Denson’s
worker’s compensation retaliation claim, he has waived his arguments as to that
claim. I agree and will grant Steak ‘n Shake’s motion for summary judgment.

I.

Background1
In 2011, Denson underwent left hip replacement surgery and suffered lower

back pain after slipping at a previous job. That same year, Dr. Paul Lux placed
Denson on permanent restrictions of clerical and sedentary work and prohibited
him from lifting any weight at all. In November 2014, Denson was hired as a
fountain operator for Steak ‘n Shake’s O’Fallon, Missouri restaurant. Denson
informed Steak ‘n Shake that he had a disability because of hip and back problems
and was limited to lifting a certain amount of weight, but did not disclose his
permanent work restrictions.
Steak ‘n Shake’s job description for a fountain operator states that the
position requires employees to: push and pull heavy objects; lift and carry 30
pounds; and stand, bend, stretch, and walk throughout the shift. Most of Denson’s
duties as a fountain operator ‒ including cleaning, washing, stocking, and making
milkshakes ‒ required him to remain on his feet and lift items. The only assistance
Denson requested was occasional help lifting milk bags into a milk dispenser and
Steak ‘n Shake accommodated his request.
In January 2015, Denson reinjured his hip, back, and leg when he slipped
and fell on the job. Denson suffered a second fall a month later. In January 2016,
Denson was examined by Dr. King, an orthopedic specialist, who placed lifting,
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Denson did not deny any of the facts listed in defendnat’s Statement of Uncontroverted
Material Facts [ECF #31] so those facts are deemed admitted. Local Rule 7-401(E).

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walking and standing restrictions on him. On February 5, 2016, Dr. King
recommended that Denson should remain on Dr. Lux’s permanent restrictions of
clerical and sedentary activities because Denson had reached maximum
improvement. On February 10, 2016, Steak ‘n Shake’s Human Resources
Manager removed Denson from the schedule for a safety evaluation.
After being removed from the schedule, Denson filed a claim for workers’
compensation against Steak ‘n Shake. Denson also filed a Charge of
Discrimination with the Equal Employment Opportunity Commission and the
Missouri Human Rights Commission (MHRC). In the Disability Questionnaire
supporting his Charge of Discrimination, Denson claimed that Steak ‘n Shake
could have accommodated his disability by making him a host, dishroom or prep
person. In his deposition testimony, Denson states that he requested to work as a
host at the O’Fallon restaurant, but he admitted that he knew that position and the
dishroom position were already taken by other employees with disabilities.
Denson filed his complaint in this Court on September 19, 2016, claiming
Steak ‘n Shake discriminated against him because he was disabled and retaliated
against him for exercising his rights under the Missouri Workers’ Compensation
statute. Steak ‘n Shake now moves the Court to grant summary judgment in its
favor on Denson’s claims.

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II.

Summary Judgment Standard
The standards for summary judgment are well settled. In determining

whether to grant a motion for summary judgment, the court views the facts – and
any inferences from those facts – in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). The movant bears the burden of establishing that (1) it is entitled to
judgment as a matter of law and (2) there are no genuine issues of material fact.
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once
the movant has met this burden, however, the non-moving party may not rest on
the allegations in its pleadings but must, by affidavit and other evidence, set forth
specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P.
56(e). Where a factual record taken as a whole could not lead a rational trier of
fact to find for the nonmoving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 587. At the summary judgment stage, I will not weigh the
evidence and decide the truth of the matter, but rather I need only determine if
there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986).

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III.

Discussion
A. Count I – ADA violation

In Count I of the complaint, Denson maintains he was discriminated against
because of his disability in violation of the ADA when Steak ‘n Shake terminated
his employment. Steak ‘n Shake argues that summary judgment should be granted
in its favor on Count I because Denson cannot establish a prima facie case of
discrimination under the ADA. Specifically, Steak ‘n Shake maintains Denson
was not qualified to perform the essential functions of a fountain operator because,
at the time he was removed from the schedule, he had medical restrictions to only
perform sedentary and clerical work. In response, Denson asserts he was capable
of performing the essential functions of a fountain operator and that Steak ‘n Shake
failed to accommodate him by offering him an alternative position at the O’Fallon
restaurant or another location in the St. Louis metropolitan area.
“To establish a prima facie case of discrimination on the basis of a disability,
a plaintiff must show that he (1) has a disability within the meaning of the ADA,
(2) is a qualified individual under the ADA, and (3) suffered an adverse
employment action as a result of the disability.” Kowitz v. Trinity Health, 839 F.3d
742, 745 (8th Cir. 2016) (internal quotations omitted). “For an employee to be a
qualified individual under the ADA, she must (1) possess the requisite skill,
education, experience, and training for h[er] position, and (2) be able to perform
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the essential job functions, with or without reasonable accommodation.” Id.
(internal quotations omitted). “Essential functions are the fundamental job duties
of the employment position.” Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 845
(8th Cir. 2015) (internal quotations omitted). The determination of whether an
individual is qualified for purposes of the ADA should be made as of the time of
the employment decision. Browning v. Liberty Mut. Ins. Co., 178 F.3d 1043, 1047
(8th Cir. 1999).
To survive summary judgment, Denson must show he was able to perform
the fundamental job duties of a fountain operator. This position required Denson
to stand, walk, push, pull, and lift and carry objects over 30 pounds throughout his
shift. Denson argues that because he was able to do his job as a fountain operator
for two years, he has shown he was able to perform the essential functions of his
job. He asks the Court to weigh his actual performance over the medical
restrictions.
Denson’s assurances and past performance, however, are insufficient to
establish he was able to perform the essential functions of his job at the time he
was removed from the schedule. Where a physician’s medical restrictions are
inapposite to the essential functions of a job, the employee’s belief or opinion that
she can do the function is simply irrelevant. Alexander v. Northland Inn, 321 F.3d
723, 727 (8th Cir. 2003). “The ADA does not require an employer to permit an
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employee to perform a job function that the employee’s physician has forbidden.”
Id.
Here, a few days before Denson was removed from the schedule, Dr. King
confirmed Denson needed to remain on the permanent work restrictions of
clerical/sedentary work imposed by Dr. Lux in 2011. Steak ‘n Shake’s job
description of the fountain operator position confirms the position is not clerical or
sedentary, but requires standing, walking, lifting, pulling, and carrying objects. In
his deposition testimony, Denson admits Steak ‘n Shake’s job description of a
fountain operator is accurate. Therefore, because Denson’s medical restrictions
were inapposite to the essential functions of his job, Steak ‘n Shake was reasonably
justified in relying on these restrictions as grounds for removing him from the
schedule for a safety evaluation.
Denson next argues Steak ‘n Shake failed to accommodate him by
reassigning him to a different position. Specifically, Denson contends he could
have been employed as a host, dishroom or prep person at Steak ‘n Shake’s
O’Fallon restaurant or a different location in metropolitan St. Louis. The Eighth
Circuit has recognized that reassignment may not be required of employers in
every instance, but under certain circumstances, may be necessary as a reasonable
accommodation. Cravens v. Blue Cross & Blue Shield of Kansas City, 214 F.3d
1011, 1018 (8th Cir. 2000). The scope of an employer’s reassignment duty is
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limited by certain constraints. Id. at 1019. For example, the position sought by the
employee must be vacant. Id. An employer is not required to ‘bump’ another
employee in order to reassign a disabled employee to that position.” Id. In
addition, the employee must be otherwise “qualified” for the reassignment
position. Id. “To be considered qualified for this job, the individual must satisfy
the legitimate prerequisites for that alternative position, and . . . be able to perform
the essential functions of that position with or without reasonable accommodations
. . . .” Id. (internal quotations omitted).
In this case, Denson alleges he requested to work as a host at the O’Fallon
location. However, it is undisputed that the position was not vacant, but held by
another person with a disability. As noted above, Steak ‘n Shake was not required
to reassign an existing worker to accommodate Denson. Moritz v. Frontier
Airlines, Inc., 147 F.3d 784, 788 (8th Cir. 1998). Moreover, to be qualified for
reassignment as a host, dishroom or prep person, Denson had to be able to perform
the essential functions of the job. Denson acknowledged that the three positions
required employees to be on their feet most of the time and that his permanent
medical restrictions forbade all but clerical or sedentary work. Because the host,
dishroom and prep positions were not clerical or sedentary, there is no genuine
issue of fact as to whether Denson was qualified to perform their essential

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functions. Therefore, Denson cannot demonstrate that reassignment to any of these
three positions would be a reasonable accommodation.
Accordingly, I find Denson cannot show that he is a qualified individual
under the ADA and has not established a prima facie case of disability
discrimination. See Moritz, 147 F.3d at788. Therefore, I will grant defendant’s
motion for summary judgment on Count I.
B. Count II – Worker’s Compensation Retaliation claim
In Count II, Denson alleges that Steak ‘n Shake retaliated against him for the
exercise of his rights under the Missouri Workers’ Compensation statute. Steak ‘n
Shake maintains it is entitled to summary judgment on this claim because there is
no temporal connection between the exercise of workers’ compensation rights and
the removal of Denson from the work schedule; and it had a non-pretextual
legitimate reason for the removal. In Denson’s response to the motion for
summary judgment, he does not address any of Steak ‘n Shake’s arguments that it
is entitled to summary judgment on Count II.
A party opposing a properly supported motion for summary judgment may
not rest upon mere allegation or denials, but must set forth specific facts showing
that there is a genuine issue for trial. Satcher v. Univ. of Arkansas at Pine Bluff Bd.
of Trustees, 558 F.3d 731, 734–35 (8th Cir. 2009). It is not my responsibility to
sift through the record to see if, perhaps, there was an issue of fact. See Rodgers v.
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City of Des Moines, 435 F.3d 904, 908 (8th Cir. 2006). In addition to his failure to
address Steak ‘n Shake’s arguments that it is entitled to summary judgment on
Count II, Denson also fails to respond to any material fact related to his workers’
compensation claim. Under Local Rule 7-4.01(E), “[a]ll matters set forth in the
statement of the movant shall be deemed admitted for the purposes of summary
judgment unless specifically controverted by the opposing party.” See also Fed. R.
Civ. P. 56(c). In addition, “failure to oppose a basis for summary judgment
constitutes waiver of that argument.” Satcher, 558 F.3d at 735. Accordingly, I find
Denson has waived those arguments and I will grant Steak ‘n Shake’s motion for
summary judgment on Count II.
IT IS HEREBY ORDERED that Steak ‘n Shake’s Motion for Summary
Judgment [29] is GRANTED.
A separate Judgment is entered this date.

_________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 11th day of December, 2017.

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