TAHA v. TBC CORPORATION

Filing 39

OPINION. Signed by Judge Renee Marie Bumb on 4/26/2016. (dmr)

[Dkt. No. 23]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DAVID TAHA,
Plaintiff,
v.

Civil No. 14-3377 (RMB/KMW)
OPINION

TBC CORP.,
Defendant.
APPEARANCES:
James M. Carter, Esq.
Hoffman DiMuzio
4270 Route 42
Turnersville, NJ 08012
Attorney for Plaintiff
Alexander Nemiroff, Esq.
Gordon & Rees, LLP
One Commerce Square
2005 Market Street, Suite 2900
Philadelphia, PA 19103
Attorney for Defendant
BUMB, United States District Judge:
THIS MATTER comes before the Court upon a motion for
summary judgment by Defendant TBC Corporation, doing business as
National Tire & Battery (“NTB” or the “Defendant”).
23.]

[Dkt. No.

For the reasons set forth below, the Court denies

Defendant’s motion for summary judgment.

I.

BACKGROUND
A. Plaintiff’s Employment with Defendant
It is undisputed for purposes of Defendant’s motion for

summary judgment that Plaintiff David Taha (the “Plaintiff”) was
diagnosed with an arthritic condition in 2000.

(Def.’s

Statement of Undisputed Material Facts1 [Dkt. No. 23-2] at ¶ 3.)
Plaintiff describes his condition as one of multiple-diagnoses
including Reflex Sympathetic Dystrophy Syndrome, fibromyalgia,
osteoporosis, Reiter’s syndrome, and reactive arthritis.

(Taha

Dep. at 31:12-18.)
The instant litigation arises out of Plaintiff’s employment
as a store manager at several NTB locations in New Jersey.
at p. 1 & ¶¶ 11, 12.)

(SOF

Plaintiff’s employment with NTB began

when he filled out an online application for employment on June
17, 2011.

(SOF at ¶ 8.)

In that application, Plaintiff

responded that he could perform the essential requirements of
the job and did not respond to a question asking about
reasonable accommodations required to perform it.2

(Id. at ¶ 8.)

Plaintiff also stated on his application that his reason for
leaving his previous job at a similar store was that he was

Hereinafter, references to undisputed facts in this statement
will be cited: “(SOF at ¶ ___.)”
2 During his deposition, Plaintiff did not dispute this, but did
testify that he provided a note soon after his employment began
indicating his disability. (Taha Dep. 131:1-4.)
1

2

“Laid Off/Position Eliminated.”

(Id. at ¶ 8.)

In reality,

Plaintiff had been terminated from this job and the police were
called to remove Plaintiff from the premises.

(Id.)

Application discrepancies aside, Plaintiff was trained by
Justin Immordino, who at that time was a store manager in NTB’s
Deptford, New Jersey location.

(Id. at ¶ 9.)

Although

Plaintiff claims a conflict arose later with Mr. Immordino as
described below, during Plaintiff’s training with him, Plaintiff
took no issue with him, nor did Plaintiff make any mention that
he was disabled in any way.

(Id. at ¶ 10.)

After he received

his training at the Deptford Store, Plaintiff became the store
manager of the Maple Shade, New Jersey store location.
¶ 11.)

(Id. at

Plaintiff’s chief role was to manage and direct the

operations of his NTB store, which sold tires and related
automotive parts and services.

(Id.)

Plaintiff’s duties in

that capacity included “meeting performance standards for
customers, building and maintaining a team effort in the store,
and ensuring continuous implementation of enforcement of company
policies and procedures.”

(Id. at ¶ 12.)

Plaintiff’s performance as a store manager at the Maple
Shade location was not without issues.

On January 5, 2012 NTB

received a written complaint from a regular customer stating
that Plaintiff had displayed a “lack of professionalism.”

The

complaint went on to state, “I’ve been a customer of NTB Maple
3

Shade since it opened many years ago.
and go[] at every position.

I’ve seen personnel come

I have never, ever encountered a

manager so rude, unprofessional, and pompous.”

(Id. at ¶ 12.)

Plaintiff does not contest this complaint was levied against
him, however, Plaintiff does assert that this customer had “a
long history of customer complaints . . . at least 30 prior to
[his] arrival . . .”

(Taha Dep. 107:24-108:3.)

On April 20, 2012, NTB provided Plaintiff with a written
warning for poor store performance.

(SOF at ¶ 15.)

Ten days

later, NTB received another complaint from a customer about
Plaintiff’s rude behavior.

(Id. at ¶ 16.)

Another complaint

followed also indicating that Plaintiff was rude and unhelpful
on July 22, 2014.

(Id. at ¶ 17.)

Two days after receiving the

July 22, 2012 complaint, Mr. Immordino, who had shifted from
also being a store manager to being Plaintiff’s supervisor,3 gave
Plaintiff a written warning, which stated “[Plaintiff] has
received a complaint about being rude and yelling at a customer.
This is not the first complaint that I have had about
[Plaintiff] being rude to customers.”

(Id. at ¶ 18.)

Mr.

Immordino provided Plaintiff with a copy of the written warning

Plaintiff strongly disagreed with Mr. Immordino’s management
style as his supervisor. (Taha Dep. 164:1-7 (“Q: You don’t like
Mr. Immordino; is that right? A: Mr. Immordino terminated my
employment. So if somebody is a bigot, if somebody violates the
laws of the land and does unethical things and harms you
physically, emotionally, there isn’t much to like.”).)
3

4

to sign, but Plaintiff does not contest that he refused to sign
the warning.

(Id.)

Instead, three days after receiving the written warning
from Mr. Immordino, Plaintiff e-mailed employees at NTB
indicating that he was requesting reasonable accommodations for
a disability pursuant to the Americans with Disabilities Act
(ADA).

(Id. at ¶ 19.)

He also stated that his attorney, James

Carter,4 would be contacting NTB.

(Id.).

The next day, another

complaint about Plaintiff’s behavior was made, again for being
consistently rude.

(Id. at ¶ 20.)

On July 31, 2012, Plaintiff’s attorney James Carter
represented to NTB that Plaintiff was unable to work more than
fifty hours per week and needed a stool to sit on periodically
during his shifts.

(Id. at ¶ 21.)

concerning Plaintiff’s impairment.

NTB responded with questions
(Taha Dep. Ex. 15.)

In the

answer to those questions, Plaintiff stated he was diagnosed in
2000 with reactive arthritis and in 2005 with “RDS and bone
loss.”

(Id.)

He stated that the impairment caused him to feel

fatigue and pain, but was able to perform all essential
functions of the job, provided he could periodically sit and not
work more than fifty hours per week.

(Id.)

Plaintiff also

provided a note from his physician corroborating his requested

4

Mr. Carter also represents Plaintiff in the instant action.
5

accommodations on August 2, 2012.

(SOF at ¶ 23.)

Thereafter,

Plaintiff obtained a stool to sit on and Plaintiff worked, on
average, 48.29 hours per week following the submission of his
request for accommodations.

(Id. at ¶ 24.)

On April 29, 2013, after being transferred to another store
location in Millville, New Jersey,5 Plaintiff received a written
warning for being rude to a customer after refusing to perform a
service on the customer’s car and “belittling her in front of
other customers.”

(Taha Dep. Ex. 19.)

On May 16, 2013, a

fellow employee at the Millville store complained that Plaintiff
would take credit for sales he did not perform.
21.)

(Id. at Ex.

The following month, Plaintiff sent an ADA note to NTB,

asking to begin a scheduled inventory in the morning, rather
than in the afternoon.
request.

(Id. at Ex. 22.)

NTB accommodated this

(SOF at ¶ 30.)

On July 19, 2013, Mr. Immordino contacted Plaintiff to
speak with him about a customer complaint.
Defendant contends that Plaintiff resigned.

During that call,
Plaintiff contends

that he advised Mr. Immordino that he was “considering to just
either go on FMLA or resign . . . .”

(Taha Dep. 203:3-15.)

Plaintiff concedes that it is common for store managers to be
transferred and that he did not receive a reduction in pay or
benefits. (Id. at ¶¶ 26-27.) However, Plaintiff contends that
the conditions in the new store were drastically worse that in
the previous store. (Taha Dep. at 167:11-168:1.)
5

6

After the call, Mr. Immordino contacted the human resources
manager for Plaintiff’s region, Sherif Kamel, and informed him
that Plaintiff had resigned his position.

(SOF at ¶ 32.)

Around that time, Plaintiff sent an e-mail to NTB employees
detailing complaints about having been transferred to a
different store, alleging breaches of employment contracts and
threatening legal action against Defendant.

(Id. at 33.)

Later that evening, after Plaintiff’s discussion with Mr.
Immordino and subsequent e-mail lodging complaints against his
employer, Mr. Kamel contacted Plaintiff in connection with his
complaints.

(Id. at ¶ 35.)

While it is disputed by Plaintiff,

Mr. Kamel provided an affidavit indicating that “[d]uring that
conversation, Plaintiff reiterated that he was resigning from
NTB.”

(Kamel Aff. at ¶ 10.) Mr. Kamel goes on to state that

minutes after Plaintiff reiterated his desire to resign,
Plaintiff called him back after speaking with his attorney and
stated that he was advised by his attorney not to resign.

(SOF

at ¶ 37.) According to Mr. Kamel, Plaintiff then stated that he
was unsure what he would do, but would not take any action until
speaking to his attorney the following week.

(Id.)

Plaintiff

disputes that he said anything of the sort to Mr. Kamel.6

(Taha

Dep. 201:1-22.)

The Court notes that whether Plaintiff relayed communications
with his attorney to Mr. Kamel would not be protected by
6

7

Ultimately, during a July 22, 2013 conference call between
Plaintiff, Mr. Kamel, and Mr. Kamel’s supervisor, Megan Filoon,
Plaintiff was told that Defendant accepted his resignation.
(SOF at ¶ 42.)
resigning.

Plaintiff claims he reiterated that he was not

(Taha Dep. at 211:4-7.)

Nevertheless, neither party

disputes that Plaintiff’s employment from that point onward did
not continue.
B. Plaintiff’s History with ADA Claims
Plaintiff has an extensive history litigating ADA claims,
frequently with his current counsel, Mr. Carter.

For instance,

on April 16, 2003, Plaintiff was given a performance development
plain by his then-employer, Avis Rent a Car System, LLC.
at ¶ 3.)

(SOF

Shortly after receiving that performance development

plan, Plaintiff informed his employer that he needed an
accommodation due to his disability.

Plaintiff thereafter sued

his employer for disability discrimination.

(Id.)

Plaintiff

then worked at the Hertz Corporation in 2004, whom he also sued

attorney-client privilege. The issue of whether Plaintiff’s
potential relaying of those communications acts as a waiver for
Defendant to inquire into the underlying communications with his
lawyer, for purposes of determining whether Mr. Carter
instructed Plaintiff to change his story, is a question for
another day. If indeed it is determined that Mr. Carter did
instruct Plaintiff to retroactively change his story for
purposes of preserving a litigation claim, another question may
arise: whether such action is sanctionable in the form of an
award of attorney fees to Defendant.
8

for constructively discharging him after refusing him the
accommodation he requested.

(SOF at ¶ 4.)

After that, Plaintiff worked for Jiffy Lube International,
Inc. as a store manager.

Plaintiff was again placed on a

performance improvement plan, and also received a number of
complaints and disciplinary actions, including a complaint that
Plaintiff was “yelling, cursing and berating his employees.”
(Id. at ¶ 5.)

Plaintiff again sued this employer for disability

discrimination, represented by Mr. Carter.

(Id.)

Next and finally, Plaintiff got a job as a store manager
for Tires Plus.

(Id. at ¶ 6.)

After a customer complaint was

lodged against him, Tires Plus terminated Plaintiff’s employment
and called the police to remove Plaintiff from the premises.
(Id.)

Plaintiff again filed a lawsuit alleging disability

discrimination, and again was represented by Mr. Carter.
II.

(Id.)

LEGAL STANDARD
Summary judgment shall be granted if “the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

14 Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law . . . .”
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson

A dispute is

“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
9

Id.

When deciding the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”

Meyer v. Riegel Prods.

Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983).

However, a mere

“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.

Anderson, 477 U.S. at 252.

Further,

a court does not have to adopt the version of facts asserted by
the nonmoving party if those facts are “utterly discredited by
the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 373, 380 (2007).

In the face of such

evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party . . . .”

Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ. P.
56(c)).

Then, “when a properly supported motion for summary

judgment [has been] made, the adverse party ‘must set forth
10

specific facts showing that there is a genuine issue for
trial.’”
56(e)).

Anderson, 477 U.S. at 250 (quoting Fed. R. Civ. P.
The non-movant’s burden is rigorous: it “must point to

concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995);
Jackson v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing
Acumed LLC v. Advanced Surgical Servs., Inc., 561 F.3d 199, 228
(3d Cir. 2009)) (“[S]peculation and conjecture may not defeat
summary judgment.”).
III. ANALYSIS
A. Plaintiff’s Articulated Claim
Through Plaintiff’s briefing, he argues as if his claim is
one for retaliation under the New Jersey Law Against
Discrimination (“NJLAD”).

However, the only cause of action

contained in the Complaint is for disability discrimination
under the NJLAD.

(See Compl. at p. 4 (“Violation of the Law

Against Discrimination: Disability Discrimination”)).

Moreover,

the facts as set forth under the cause of action heading reading
“Disability Discrimination” appear to track the conventional
elements for discrimination under the NJLAD, not retaliation.
(See, e.g., id. at ¶ 28 “The plaintiff, at all relevant times,
was performing his job at a level that met or exceeded or should
have met or exceeded the defendant’s legitimate expectations.”)
11

Finally, at oral argument on the motion for summary judgment,
Plaintiff conceded there was no retaliation claim in this case.
Despite this concession, Plaintiff’s supplemental brief
appears to once again go back to retaliation as the claim at
issue.

(Pl.’s Supp. Br. at 1 (“The plaintiff assumes for the

purpose of this supplemental memorandum that he has satisfied
the elements of a prima facie case of retaliation under the New
Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et
seq. for reasonable requests for accommodation of his
disability.”).
The complaint clearly states no cause of action for
retaliation.

Plaintiff conceded as much at oral argument.

The

Third Circuit has held that a plaintiff cannot shoehorn a
retaliation claim into a discrimination lawsuit when it is not
contained in the complaint.
408 n.1 (3d Cir. 1997).

Knabe v. Boury Corp., 114 F.3d 407,

Likewise, faced with a similar

predicament in Hyman v. Atlantic City Medical Center, No. Civ.
A. 97-795 (JEI), 1998 WL 135249 (D.N.J. Mar. 16, 1998), the
court held that it would “not consider[] Hyman’s assertions of
retaliation, which are raised for the first time in her brief,
as a separate claim of retaliatory discharge.

Plaintiff’s

Complaint fails to plead a retaliation count and asserts no
facts in support of such a claim.”

12

Id. at *12 n.8.

This Court

is no more willing to permit Plaintiff’s late-arriving cause of
action for retaliation to go forward.7
B. Discrimination Under the NJLAD
Plaintiff’s sole claim is for disability discrimination
under the NJLAD.

Under the NJLAD, a disability discrimination

claim such as Plaintiff’s is adjudicated under the familiar
McDonnell Douglas burden-shifting framework.

Tourtellotte v.

Eli Lilly and Co., No. 15-1090, 2016 WL 146455 (3d Cir. Jan. 13,
2016); see generally McDonnell Douglas v. Green, 411 U.S. 792
(1973).

Under that framework, to establish a prima facie case

of discriminatory discharge under the NJLAD, a plaintiff is
required to show that: “(1) she is the member of a protected
class, specifically that she has or is perceived to have a
disability as defined by the NJLAD; (2) she was otherwise
qualified to perform the essential functions of the job, with or
without reasonable accommodation by the employer; (3) she
experienced an adverse employment action; and (4) the employer
sought someone else to perform the same work, or did fill the
position with a similarly-qualified person.” Tourtellote, 2016

Plaintiff does not argue it at summary judgment, and the
Complaint does not adequately allege it, nevertheless the Court
does not find anywhere in the record sufficient evidence to
permit a hostile work environment claim to proceed, despite one
fleeting mention of the term in the Complaint. (Compl. at ¶
28.)
7

13

WL 146455, at *11 (citing Victor v. State, 203 N.J. 383, 408-409
(2010)).
Once a plaintiff has made out a prima facie case of
retaliation, a presumption arises in favor of discrimination,
which shifts the burden to the employer to “articulate a
legitimate, non-discriminatory reason for the adverse employment
action.”

Levine v. Voorhees Bd. of Educ., Civ. No. 07-1614

(RMB), 2009 WL 5171857, at *11 (D.N.J. Dec. 23, 2009).
Once the defendant carries that burden, the plaintiff must
show that the legitimate business reason is merely pretext.
More specifically, “[t]o defeat summary judgment at the pretext
stage, ‘the plaintiff must point to some evidence, direct or
circumstantial from which a factfinder could reasonably either
(1) disbelieve the employer’s articulated legitimate reasons; or
(2) believe than an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the
employer’s action.’”

DiMare v. Metlife Ins. Co., 369 Fed. Appx.

324, 328 (3d Cir. 2010).
i. Prima Facie Case
For purposes of its summary judgment motion, Defendant
contests the third and fourth elements of the prima facie case
of disability discrimination: that Plaintiff suffered an adverse
employment action, and it happened under circumstances giving

14

rise to an inference of discrimination.8

While the Court is very

swayed by the Defendant’s argument that Plaintiff has not
demonstrated a prima facie case, narrow factual disputes prevent
resolving the issue on summary judgment.
1. Adverse Employment Action
Under the NJLAD, Plaintiff must demonstrate that he
suffered an adverse employment action.

Brown v. City of Long

Branch, 380 Fed. Appx. 235, 238 (3d Cir. 2010).

With regard to

Plaintiff’s claim that he suffered an adverse employment action,
Defendant argues that the record is clear that the acceptance of
his resignation or the refusal of Defendant to rescind that

Typically, in the context of disability discrimination claims,
courts have construed this to be a requirement that Plaintiff
show that he was replaced by a similarly qualified person.
Tourtellote, 2016 WL 146455, at *11 (citing Victor v. State, 203
N.J. 383, 408-409 (2010)). Neither party seeks to make argument
concerning whether Plaintiff was replaced by a similarlyqualified individual. However, as all discrimination claims are
highly fact intensive, this is not the only manner in which a
plaintiff might demonstrate an inference of discrimination. See
Glenn v. Lawrence Tp. Police Dept., 2012 WL 933335, at *5
(D.N.J. Mar. 20, 2012) (citing Williams v. Pemberton Twp. Pub.
Sch., 733 A.2d 571, 578 (N.J. Super. Ct. App. Div. 1999) (“In
light of the various contexts in which employment
discrimination claims arise, we consider it unwise to require a
plaintiff to establish unfailingly as part of the prima facie
case that plaintiff was replaced by an individual outside the
plaintiff's protected class[; t]he appropriate fourth element of
a plaintiff's prima facie case requires a showing that the
challenged employment decision (i.e., failure to hire, failure
to promote, wrongful discharge) took place under circumstances
that give rise to an inference of unlawful discrimination[;
t]hat formulation permits a plaintiff to satisfy the fourth
element in a variety of ways.”).
8

15

resignation is not an adverse employment action, nor does any
other action taken by Defendant amount to an adverse action.
(Defs.’ Br. at 9-10.)

In so arguing, Defendant relies upon

cases which have held that refusal to rescind a resignation does
not suffice to demonstrate an adverse employment action.

E.g.,

Williams v. Rowan University, Civ. No. 10-6542, 2014 WL 7011162,
at *9 (D.N.J. Dec. 11, 2014).

Indeed, this Court held in

Williams, “[a]n employer’s refusal to allow an employee to
rescind his resignation has been held not to be an adverse
employment action.”

Id.

If Plaintiff had indeed resigned, Defendant’s would be
correct in arguing that Williams would warrant a grant of
summary judgment.

Reading the facts in the light most favorable

to Plaintiff as this Court must, however, the Court finds
Williams distinguishable.

Here, Plaintiff’s theory of the case

is that he did not communicate his resignation at any point.
(Pl.’s Br. 8-9.)

Instead, Plaintiff contends that he conveyed

his thought about resignation that was intentionally
misconstrued by Mr. Immordino and others to be a resignation for
purposes of eliminating his employment.

Such conduct, if true,

would amount to an adverse employment action.
To put it delicately, the Court is very skeptical that
Plaintiff could ever ultimately demonstrate to a jury that Mr.
Immordino intentionally misconstrued his contemplated
16

resignation into a full-fledged resignation, while Mr. Kamel in
a separate and independent conversation with Plaintiff on the
same day also came away with the same misunderstanding that
Plaintiff was resigning.

(See SOF at ¶ 37.)

Nevertheless, the

Court is required to view the facts in the light most favorable
to Plaintiff, resolving all factual disputes in his favor,
including what he said to Mr. Immordino and Mr. Kamel.

Having

done so, the Court determines that Plaintiff has demonstrated an
adverse employment action for purposes of summary judgment.9
2. Inference of Discrimination
Defendant argues that Plaintiff’s adverse employment
action, to the extent there was one, did not occur under
circumstances giving rise to an inference of discrimination.

The Court does not, however, rule that Plaintiff has adequately
supported an alternative theory of constructive discharge, which
is mentioned in passing in his opposition brief. (Pl.’s Opp.
Br. at 6 (“It is Mr. Taha’s position that the company came to
resent his request for accommodation based upon his disability
and pretextually raised bogus concerns about customer
complaints, then ultimately constructively terminated him when
it ‘accepted’ his supposed resignation.”).) Plaintiff’s
argument misconstrues the nature of constructive discharge,
which requires the employee to resign. In order to state a
claim of constructive discharge under the NJLAD, conduct must be
pointed to that is “so intolerable that a reasonable person
would be forced to resign rather than continue to endure it.”
Anastasia v. Cushman Wakefield, 455 Fed. Appx. 236, 240-41 (3d
Cir. 2011). Here, Plaintiff has vehemently denied that he
resigned. (Pl.’s Br. at 6, 8-9.) Moreover, Plaintiff has not
presented any briefing whatsoever on constructive discharge
other than this single mention of the term.
9

17

Plaintiff has, once again barely, survived his obligation of
making a prima facie of disability discrimination.
Although the Court is somewhat persuaded by Defendant’s
arguments, Plaintiff has adduced evidence that after Mr.
Immordino became his district manager, he reminded Mr. Immordino
of his disability.

(Taha Dep. Ex. 22.)

Eleven days later,

complaints against him were trumped up and misconstrued, (Taha
Dep. Ex. 25 (conversation with Mr. Kamel concerning complaints),
and that Mr. Immordino misrepresented Plaintiff’s contemplated
resignation as a resignation.

While on a neutral reading of the

facts, it would seem likely Plaintiff was terminated because he
had a copious number of complaints filed against him or did not
have a personality match with Mr. Immordino, the proximity to
Plaintiff’s reporting of his disability to Mr. Immordino is
sufficient to establish a prima facie case at summary judgment.
This is particularly the case where Plaintiff has pointed to
evidence that some complaints were to be expected against a
manger and several against him were largely easily-explained
misunderstandings.
ii.

Legitimate Business Reason

The legitimate business reason portion of the McDonnell
Douglas test becomes slightly unwieldy under the facts of this
case because it is not Defendant’s position that they fired
Plaintiff at all.

Nevertheless, construing the facts in favor
18

of Plaintiff’s narrative—that he was fired when Defendant
intentionally misinterpreted his words as a resignation,
Defendant has still shown a legitimate business reason for
terminating Plaintiff.

Specifically, the record is replete with

complaints about Plaintiff’s performance in his job.

As such,

assuming a jury were to find Plaintiff was terminated and did
not resign, a jury may also find that Plaintiff’s termination
was for a legitimate business reason.
iii. Pretext
Plaintiff claims that evidence of pretext exists in the
form of accepting a resignation that Plaintiff did not offer.
In other words: if Defendant knew that Plaintiff stated in
essence, “I am thinking about resigning,” and nevertheless,
intentionally misconstrued that as “I resign,” such an action is
evidence of pretext.

This coupled with the somewhat close

proximity between Plaintiff’s report of his disability and
ultimate termination is “some evidence” from which the Court
could disbelieve Defendant’s articulated reason.

This is

particularly so where Defendant has pointed to no evidence that
there was any plan to fire Plaintiff before his re-report of his
disability and his supposed “resignation.”
IV.

CONCLUSION
By the slimmest of margins, Plaintiff has survived summary

judgment.

While the Court is skeptical, material factual
19

disputes exist concerning Plaintiff’s claim of disability
discrimination.

As such, the Court is unable to grant summary

judgment.10
DATED: April 26, 2016

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

As noted, supra note 6, the Court does not today address
Defendant’s ultimate ability to inquire into Mr. Carter’s
counsel to Mr. Taha after his purported resignation. Likewise
saved for another day is the potential issue of whether Mr.
Carter may ultimately be disqualified as Plaintiff’s counsel, a
topic which was discussed at oral argument.
10

20