Shaske v. Carmike Cinemas, Inc.

Filing 65

MEMORANDUM AND ORDER - Carmike's Motion for Summary Judgment (filing 54 is denied. This matter is referred to the United States Magistrate Judge for case progression. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOEY SHASKE, a minor child, by and
through his parents, natural
guardians, and next friends, JODIE
SHASKE and JOSHUA SHASKE,
Plaintiff,

4:13-CV-3137
MEMORANDUM AND ORDER

vs.
CARMIKE CINEMAS, INC., a
Delaware corporation,
Defendant.
The plaintiff, Joey Shaske, alleges that the defendant, Carmike
Cinemas, discriminated against him in violation of the Americans with
Disabilities Act (ADA) when it terminated his employment at its theater in
Scottsbluff, Nebraska. Carmike, however, contends that the plaintiff was
terminated as part of a reduction-in-force, and has moved for summary
judgment. Filing 54. Because there are genuine issues of material fact
precluding summary judgment, the Court will deny Carmike's motion.
BACKGROUND1
Carmike is a motion picture exhibitor that operates movie theaters
across the United States, including the Monument Mall 6 Theater in
Scottsbluff. Filing 55 at 9. In the spring of 2012, the Theater's manager,
Cynthia Hamilton, hired several employees in anticipation of the busy
summer movie season: Ashley Longoria, Tristan Scott, Ashley Shimek, and
the plaintiff. Filing 55 at 9-10; filing 59 at 5.
When he was interviewed, the plaintiff told Hamilton that he had
previously been afflicted with brain cancer. Filing 55 at 10; filing 59 at 1. It is
undisputed for purposes of the present motion that the plaintiff has
anterograde amnesia, which limits his ability to form new memories. Filing
55 at 10; filing 59 at 1-2. The plaintiff told Hamilton that he had problems
Many of the salient facts are uncontroverted, and are set forth in the parties' respective
statements of undisputed material facts. See NECivR 56.1.
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relating to short-term memory loss and had difficulty memorizing long lists of
information. Filing 55 at 10. But, the plaintiff explained, he had learned
coping skills such as writing notes to himself, and leaving things in the same
place so he could find them. Filing 55 at 10. The plaintiff also told Hamilton
that he would have to miss work from time to time for medical appointments.
Filing 55 at 10.
The plaintiff began work at the Theater on May 12, 2012, working as a
concessions attendant. Filing 55 at 11. He also worked, at times, as a cashier,
usher, and arcade attendant. Filing 59 at 1. The plaintiff was permitted to
write messages to himself as reminders, and to use his mobile phone to take
pictures of his schedule. Filing 55 at 11. And Hamilton provided the plaintiff
with written checklists to help him in his duties. Filing 55 at 11. Those duties
included cleaning, taking tickets and offering directions, serving concessions,
and giving change. Filing 59 at 2. He was generally able to perform these
tasks. Filing 59 at 3. No verbal or written warnings, or disciplinary action, or
complaints from other employees, were documented with respect to the
plaintiff. Filing 59 at 2-3.
The plaintiff's employment was not without incident, however, at least
according to Carmike. The Theater's assistant manager says that other
employees complained about the plaintiff leaning on counters and not
working while other employees were, stopping during house checks to watch
movies, and talking to friends instead of helping his coworkers. Filing 61 at
90-91. And Hamilton says there were a couple of reports that the plaintiff
had used profanity in front of the Theater's customers. Filing 61 at 102.
Hamilton says she "coached" the plaintiff about such things as leaning on the
counters and hanging out with his friends. Filing 61 at 70. The Theater's
employee manual would suggest that at least some of the infractions
attributed to the plaintiff should have been formally documented by
management. Filing 59-2 at 24-25. But Hamilton says she prefers not to
employ formal discipline during an employee's first few months, because it's
discouraging and bad for morale. Filing 61 at 105. The plaintiff, for his part,
denies swearing in front of customers. Filing 59 at 1-2.
On June 14, 2012, the plaintiff went with his mother to Denver for a
doctor's appointment. Filing 59 at 6. He received a text message from
Hamilton's husband asking if he was on his way to work, and noting that he
was scheduled to work that day. Filing 59 at 6. He replied, apologizing for
any confusion but stating that he was "pretty sure" he had told Hamilton that
he had a doctor's appointment. Filing 59 at 6. Hamilton texted the plaintiff
telling him that he would need to bring a doctor's note verifying the
appointment. Filing 59 at 6. The plaintiff replied, asking when he was
scheduled to work again. Filing 59 at 7. Hamilton responded that the plaintiff
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was scheduled to work the next day—June 15—from 6 to close. Filing 59 at 7.
The plaintiff claims that he had informed Hamilton of the doctor's
appointment. Filing 59-1 at 2. Hamilton, however, says she had not been
informed, and that the plaintiff never submitted a "Time Off Request Form,"
which she requires of employees who want to be removed from a scheduled
shift. Filing 59-2 at 52; filing 61 at 106.
In the meantime, in May 2012, Hamilton (and other theater managers
in the same district) began receiving emails from the Carmike district
manager, advising them that business was slow and emphasizing the need to
control expenses, including payroll. Filing 55 at 11; filing 59 at 4. Those
emails did not require any layoffs, and there are other ways to cut payroll,
such as sending employees home or adjusting scheduling. Filing 59 at 4;
filing 59-2 at 120-21. But the emails did emphasize cutting payroll "as much
as possible in the month of June." Filing 59 at 4; filing 61 at 113, 133, 148.
Hamilton decided to terminate three employees. Filing 55 at 12. Hamilton
says she wanted to retain more experienced workers, so she focused her
attention on the four recently-hired employees: Longoria, Scott, Shimek, and
the plaintiff. Filing 55 at 12. According to Hamilton, Scott had distinguished
herself, and was a better employee than the other three, so she decided to
retain Scott and terminate the others.2 Filing 55 at 12. Hamilton says she
decided to terminate the plaintiff on June 10 or 11. Filing 59-2 at 55. The
plaintiff was told of his termination when he reported to work on June 15—
the day after he had missed work for his doctor's appointment. Filing 59 at 7.
Hamilton says that she had asked the plaintiff to provide a doctor's note
anyway—despite the fact that she had already decided to terminate him—
because it could affect whether he was eligible to be rehired. Filing 61 at 106.
When the plaintiff was informed of his termination on June 15, 2012,
he was told by the assistant manager who spoke to him that he "had done
nothing wrong." Filing 59 at 8. The next day, the plaintiff's mother called and
spoke with Hamilton, who said that the plaintiff had been terminated
because Carmike did not have enough hours for him to work. Filing 59 at 8.
When the plaintiff's mother questioned that explanation, however, Hamilton
said that she didn't want to hurt the plaintiff's feelings, but the reason the
plaintiff was terminated was that Hamilton did not think the plaintiff was
capable of doing the job. Filing 59 at 8. The plaintiff's mother ended the
telephone call before Hamilton could elaborate. Filing 59-2 at 76. Hamilton
says that all she meant by her statement was that the plaintiff was too
immature for the work force. Filing 61 at 73-74.
The plaintiff contends that Longoria quit before being fired, filing 59-4, but the Court does
not view that factual dispute as material.
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Carmike asserts that the decision to terminate the plaintiff was based
on economic necessity, but the plaintiff disputes that assertion. The plaintiff
points to evidence that the Theater was hiring during the same timeframe.
One potential new employee was contacted on June 6, 2012, and
subsequently interviewed for a position at the Theater; he was told by the
interviewer that the Theater was looking to immediately hire for weekends,
holidays, and some weekdays. Filing 59 at 5-6. That interviewee was not
hired, filing 61 at 105, but on July 11, two other new employees were. Filing
59 at 8. In addition, Shimek (one of the other employees terminated at the
same time as the plaintiff) was contacted in August to gauge her interest in
returning to work; the plaintiff, however, was not contacted. Filing 59 at 9.
Hamilton says that when the plaintiff had been terminated by the assistant
manager, the plaintiff had suggested that he thought he already had another
job anyway. Filing 61 at 106-07. That, Hamilton says, was why the plaintiff
was not later contacted about returning to work. Filing 61 at 106-07. The
plaintiff, however, denies making such a statement. Filing 59-1 at 3.
After exhausting his administrative remedies, the plaintiff sued
Carmike in state court, alleging, among other things, a violation of the ADA.
Filing 1-1. Carmike removed the case to federal court, denied the plaintiff's
claims, and now moves for summary judgment. Filing 1; filing 9; filing 54.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The mere existence of a scintilla of evidence in support of the
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nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the 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. Torgerson, 643 F.3d at 1042.
DISCUSSION
The burden of proof in an ADA case3 depends on whether the plaintiff
is raising a disparate treatment claim or a reasonable accommodation claim.
See Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d 707, 711 (8th Cir. 2003).
In this case, the plaintiff alleges discriminatory disparate treatment;
accordingly, the traditional burden-shifting framework of McDonnell
Douglas4 will apply. See Fenney, 327 F.3d at 711-12. The plaintiff must
initially establish each element of the prima facie case. Id. To establish a
prima facie case of discrimination under the ADA, an employee must show
that he is disabled within the meaning of the ADA, is a qualified individual
under the ADA, and has suffered an adverse employment decision because of
the disability. Kallail v. Alliant Energy Corp. Servs., Inc., 691 F.3d 925, 930
(8th Cir. 2012). The employer must then rebut the presumption of
discrimination by articulating a legitimate, non-discriminatory reason for the
adverse employment action. Fenney, 327 F.3d at 712. If the employer does
this, then the burden of production shifts back to the plaintiff to demonstrate
that the employer's non-discriminatory reason is pretextual. Id.
For purposes of summary judgment, Carmike does not dispute that the
plaintiff is disabled within the meaning of the ADA and is a qualified
individual under the ADA—that is, that the plaintiff has a physical or mental
impairment that substantially limits one or more of his major life activities;
possesses the requisite skill, education, experience, and training for his
position; and is able to perform the essential job functions, with or without
reasonable accommodation. See, e.g., Fenney, 327 F.3d at 711-12. But
Carmike contends that the plaintiff has failed to meet the third part of his
prima facie case—that he has suffered an adverse employment action
because of his disability.
The Court disagrees. First, the plaintiff points to Hamilton's statement
to his mother that Hamilton did not think the plaintiff "can do this job."
The plaintiff's complaint also refers to the Nebraska Fair Employment Practices Act, Neb.
Rev. Stat. § 48-1101 et seq. Filing 1-1 at 4. But the plaintiff has not identified any way in
which the Nebraska law is meaningfully broader than federal law, and they are generally
held to be coextensive in this regard. See Ryan v. Capital Contractors, Inc., 679 F.3d 772,
777 n.3 (8th Cir. 2012).
3

4

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).

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Filing 59-2 at 78. Hamilton says all she meant by that was that the plaintiff
was too immature for employment, and perhaps that is true. But it could also
be interpreted as referring to limitations imposed by the plaintiff's disability.
The plaintiff's termination also took place just 1 day after he missed work as
a result of his disability, and a temporal connection between an
accommodation and termination may permit an inference of causation. See,
Smith v. Allen Health Sys., Inc., 302 F.3d 827, 832-33 (8th Cir. 2002); Foster
v. Time Warner Entm't, 250 F.3d 1189, 1195-96 (8th Cir. 2001). Hamilton
says that the decision to terminate the plaintiff had already been made, and
that may also be true—but it begs the question of why Hamilton told the
plaintiff to report to work for a shift she already knew he wouldn't complete,
and why she required a doctor's note. There are explanations for that too—
but at this point, there are sufficient inferences going both ways to create a
jury question as to credibility. The Court finds that the plaintiff's evidence is
sufficient to permit a finding that he was terminated as a result of disability.
Carmike, of course, contends that there is a legitimate, nondiscriminatory reason for the plaintiff's termination: necessary payroll cuts.
And a reduction-in-force is a legitimate, non-discriminatory reason for an
adverse employment action. E.g., Groves v. Cost Planning and Mgmt. Int'l,
Inc., 372 F.3d 1008, 1009 (8th Cir. 2004). It is, therefore, the plaintiff's
burden to demonstrate that this reason is pretextual. There are at least two
routes by which a plaintiff may demonstrate a material question of fact at
this final step of the analysis. Gibson v. American Greetings Corp., 670 F.3d
844, 854 (8th Cir. 2012). First, the plaintiff may succeed indirectly by
showing the proffered explanation has no basis in fact. Id. Second, the
plaintiff can directly persuade the Court that a prohibited reason more likely
motivated the defendants. Id.
Under the first approach, the plaintiff must show that the employer's
proffered reason was "unworthy of credence." Wallace v. Sparks Health Sys.,
415 F.3d 853, 860 (8th Cir. 2005) (quotation omitted). He may do so by
showing, for instance, that similarly situated employees were treated more
leniently, or that the employer deviated from its policies. EEOC v. Prod.
Fabricators, 763 F.3d 963, 970 (8th Cir. 2014); see Stallings v. Hussmann
Corp., 447 F.3d 1041, 1052 (8th Cir. 2006). Under the second approach, the
employee rebuts the employer's ultimate factual claim regarding the absence
of discriminatory intent by demonstrating that sufficient evidence of
discrimination exists for a jury to believe the plaintiff's allegations and find
that the proffered explanation was not the true motivating explanation. See
Stallings, 447 F.3d at 1052. In other words, the employee may concede that
the proffered reason for the termination would have been a sufficient basis for

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the adverse action while arguing that the employer's proffered reason was
not the true reason for the action. Id.
The plaintiff combines aspects of both approaches here. He points to
evidence that, he says, suggests that terminations were not economically
necessary. And, of course, he points to Hamilton's remark to his mother,
among other things, as evidence that even if the reduction-in-force was
legitimate, he was selected for termination based on his disability. See
Kinsella v. Rumsfeld, 320 F.3d 309, 314 (2d Cir. 2003); compare, Cable v. Ivy
Tech State Coll., 200 F.3d 467, 478 (7th Cir. 1999), overruled on other
grounds, Hill v. Tangherlini, 724 F.3d 965 (7th Cir. 2013); Aucutt v. Six Flags
Over Mid-America, Inc., 85 F.3d 1311, 1317 (8th Cir. 1996).
The Court finds that the evidence, taken in the light most favorable to
the plaintiff, would support a finding that Carmike's stated justification for
his termination was pretextual. While Carmike's evidence establishes that
there was a need to cut "payroll," that falls short of showing that
terminations were necessary, as the evidence also shows that there were
steps short of terminating employees that could (and often were) taken to
temporarily cut payroll. The interview and hiring of other personnel around
the same time could suggest, to a reasonable jury, that instead of cutting
payroll, Hamilton was trying to cut new employees whose performance was
unsatisfactory. In July, the Theater hired new employees instead of recalling
those who had purportedly been terminated for lack of work. And the Theater
later contacted one of the employees who had been terminated along with the
plaintiff, but did not contact the plaintiff. Of course, Hamilton explained each
of those events, and a reasonable jury could believe her explanations. But the
evidence falls short of establishing her credibility as a matter of law.
Hamilton's remark to the plaintiff's mother also establishes some
inconsistency in Carmike's stated justification for the plaintiff's termination,
and such inconsistencies have been held to support a finding of pretext., See,
e.g., Young v. Warner-Jenkinson Co., 152 F.3d 1018, 1023 (8th Cir. 1998). To
be fair, Carmike's evidence accounts for that inconsistency to some extent:
there is no dispute that the three employees chosen for Carmike's reductionin-force were chosen partly based on deficient performance. But that creates
a different problem for Carmike, because the line between the plaintiff's
"performance" and his disability cannot be definitively plotted. The plaintiff
denies some of the allegations regarding his performance, 5 and those
Neither party addresses whether any of the plaintiff's reported performance issues could
be attributed to his disability. For instance, there is evidence suggesting that one aspect of
the plaintiff's medical condition is "filter loss," which may cause inappropriate speech.
Filing 59-2 at 86. But because it has not been raised by the parties, the Court does not
consider it.
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allegations and others were not documented pursuant to the Theater's
policies. Again, Hamilton has provided an explanation, and a reasonable jury
might fully credit that explanation. But it might not.
In sum, the Court finds that it is for a jury to decide what was meant
by the statement that the plaintiff was unable to "do this job." Filing 61 at 40.
And it is for a jury to decide whether Carmike's explanation of a reduction-inforce is to be believed—and, if not, whether the evidence of pretext supports
an inference of discrimination. See Young, 152 F.3d at 1024. The Court
recognizes that it is not a super-personnel department with authority to
review the wisdom or fairness of the business judgments made by employers.
See, Guimaraes v. SuperValu, Inc., 674 F.3d 962, 977 (8th Cir. 2012);
Stallings, 447 F.3d at 1052; Wallace, 415 F.3d at 860. But the question here
is not wisdom or fairness—it is credibility. And as the evidence stands, there
are enough variables to warrant consideration by a jury.
IT IS ORDERED:
1.

Carmike's Motion for Summary Judgment (filing 54) is
denied.

2.

This matter is referred to the United States Magistrate
Judge for case progression.

Dated this 21st day of January, 2015.
BY THE COURT:

John M. Gerrard
United States District Judge

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