Spears v. E-Z Mart Stores, Inc.

Filing 48

OPINION AND ORDER by Judge John E Dowdell Defendant's Motion for Summary Judgment is granted. The parties' pending motions in limine (Doc. 24, 25) are moot. ; granting 26 Motion for Summary Judgment (Re: State Court Petition/Complaint ) (SAS, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
JOSHUA SPEARS,
Plaintiff,
v.
E-Z MART STORES, INC.,
Defendant.

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Case No. 12-CV-17-JED-TLW

OPINION AND ORDER
The Court has for its consideration the Motion for Summary Judgment (Doc. 26) filed by
defendant, E-Z Mart Stores, Inc. (“E-Z Mart”). Plaintiff, Joshua Spears (“Spears”), filed a
response (Doc. 37), and E-Z Mart filed a reply (Doc. 39).
I.

Background
Spears was employed by E-Z Mart from March 18 to May 9, 2010. He asserts claims

under the Americans with Disabilities Act (“ADA”), Oklahoma’s anti-discrimination law, Okla.
Stat. tit. 25, §§ 1101 et seq., and a claim for intentional infliction of emotional distress. He
alleges that he has a seizure disorder qualifying as a disability, and he claims that his supervisor
at E-Z Mart, Natasha Glass (“Glass”), terminated his employment because of his disability. He
also contends that he was discharged without reasonable accommodation.

The summary

judgment record reveals the following undisputed facts:
On May 4, 2010, Spears’ mother called Glass to inform Glass that Spears was ill and
would not be coming to work. Spears had already been off of work for several days before that
call. After speaking to Spears’ mother, Glass spoke to Spears directly, and Spears informed
Glass that he had a sore throat and was having seizures. Glass asked that Spears bring a doctor’s
note confirming the need for time off for these maladies, and Spears subsequently provided a

note from his physician stating that Spears “should be able to return to work in 2-4 days.” (Doc.
26-12). Glass then allowed for at least 4 days off and told Spears that she would see him
Sunday, May 9, 2010, five (5) days after his visit to the doctor.1
Spears did not come to work on May 9, 2010. E-Z Mart contends that Glass fired Spears
pursuant to E-Z Mart’s strict No Call / No Show policy, because he failed to show up for a
scheduled shift on May 9 and failed to call in advance to explain his absence. E-Z Mart’s No
Call / No Show policy (Doc. 26-18) provides:
Not reporting to work and not calling to report the absence is a no call / no show
and may result in discipline, up to and including immediate termination.
Management may consider extenuating circumstances when determining
discipline for a no call / no show (for instance, if the employee is in a serious
accident and is hospitalized) and has the right to exercise discretion in such cases.
E-Z Mart, as a chain and including the Collinsville, Oklahoma store at which Spears worked,
strictly enforces the No Call / No Show policy upon one incident unless there are extenuating
circumstances like those stated in the policy.

(Doc. 26-19).

E-Z Mart submitted records

substantiating that, based upon the No Call / No Show policy, five (5) other employees at the
Collinsville store were discharged from employment for failing to timely call or show to work in
2009 and 2010. (Doc. 26-21). Spears does not dispute this evidence, but asserts, in conclusory
fashion, that the policy and evidence are “irrelevant.”
Medical records of Spears’ doctor visit on May 4, 2010, as well as medical records for
the time-frame in general, specifically indicate that Spears was not having seizures on May 4,
2010 and that, as of April 28, 2010, Spears had informed his doctor that he “has not had any
seizure [sic] for some time now,” and informed the doctor on December 1, 2010 that he “has not

1

E-Z Mart is a convenience store which operates 24 hours a day, 7 days per week,
including Sundays.
2

had any seizures for about three years.” (Doc. 26-6). The physician’s record for the May 4 visit
reflects that Spears was seen for “tonsillitis.” (Doc. 26-5 at 56-67; Doc. 26-11). 2
Spears attempts to establish a discriminatory motive by claiming that (1) he received
from his cousin (who was also an employee of E-Z Mart and was residing with Spears and
Spears’ mother) a schedule that showed Spears was not scheduled to work on May 9, (2) after
receiving the schedule, he called Glass on May 9 to inquire why he was not on the schedule for
that day (when he was set to work that day according to an earlier schedule), and Glass explained
that he was fired and would not be on the schedule again, and (3) his cousin informed him that
Glass had previously asserted that she wanted to “get rid” of Spears and that Glass told the
cousin after Spears’ discharge “I hope you’re not upset with me for the way I did your cousin.”
The testimony of both Spears and his cousin is equivocal, confused, and contradictory as
to the timing of the events of the entire week that included May 4 through May 9, 2010, and the
cousin (who Spears alleges to have provided the schedule showing Spears was not scheduled to
work on May 9) ultimately testified that he did not remember if Spears worked on May 9 and
could not positively state when he received the new schedule and provided it to Spears. Spears
was also confused as to what dates he was sick and what days of the week were involved as to
certain events that week, such as when he was sick and went to the doctor. (See Doc. 26-1 at 6268; Doc. 26-9 at 102-103, 106, 109-110, 113-114).
2

As is the case in numerous places throughout his response brief, Spears did not submit
evidence to dispute E-Z Mart’s specific undisputed facts. Instead, Spears summarily asserted
that the evidence is “irrelevant” or “requires the Court to improperly draw inferences in favor of
Defendant.” (See, e.g., Doc. 37 at ¶ 5 (asserting to be “irrelevant” medical records of plaintiff’s
marijuana use as impacting possibility of seizures), ¶ 6 (stating that physician’s indication that
plaintiff reported having no seizures for years was irrelevant and would require drawing
inferences in favor of E-Z Mart), ¶ 13 (generically disputing 4 paragraphs of E-Z Mart’s
undisputed facts [regarding Spears’ report to his doctor that he had not had any seizures and was
treated only for a complaint of tonsillitis during the week his employment was terminated] “to
the extent they require the Court to improperly draw inferences in favor of Defendant”)).
3

In a further effort to support an inference of discrimination and pretext, Spears asserts
that Glass did not explain to him why he was being terminated, and that it was his cousin who
informed him that Glass reported that Spears was fired for a violation of the store’s No Call / No
Show policy. However, the cousin (Spears’ key witness) denies that Glass told him the reason
for terminating Spears. (Doc. 26-9 at 117). As to Spears’ allegation that the cousin had
overheard Glass previously state that she did not believe Spears had seizures, that Spears was
“lazy,” and that she was going to “get rid” of Spears, the cousin actually testified that he did not
remember who made the comments, he could not “remember who said exactly what,” and the
“lazy” comment did not relate to any issue of seizures. (Doc. 26-9 at 100-103, 106).
II.

General Standard Applicable to Summary Judgment
Summary judgment is appropriate “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.” Fed. R. Civ. P.
56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986). “By its terms, [the Rule 56] standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson, 477 U.S. at 247-48 (emphasis in original). In considering a
summary judgment motion, the courts determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251-52. The evidence of a non-movant is to be taken as true,
and all justifiable and reasonable inferences are to be drawn in the non-movant’s favor.
Anderson, 477 U.S. at 255; see Ribeau v. Katt, 681 F.3d 1190, 1194 (10th Cir. 2012). The plain
language of Fed. R. Civ. P. 56 mandates entry of summary judgment against a party who fails to

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make a showing sufficient to establish the existence of an element essential to the party’s case,
and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322.
The summary judgment procedure is “not . . . a disfavored procedural shortcut, but rather
[is] an integral part of the Federal Rules as a whole, which are designed ‘to secure the just,
speedy and inexpensive determination of every action.’” Id. at 327. When the moving party has
carried its burden under Rule 56(c), its “opponent must do more than simply show that there is
some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). “The
mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient;
there must be evidence on which the [trier of fact] could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.

The inquiry is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 259.
III.

Discussion
A.

ADA Claims
1.

Alleged Discrimination

The ADA prohibits “discriminat[ion] against a qualified individual on the basis of
disability in regard to job application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms, conditions, and privileges of
employment.” 42 U.S.C. § 12112(a). ADA discrimination cases are subject to the burdenshifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997). The plaintiff bears the initial

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burden of establishing a prima facie case of discrimination under the ADA. To establish a prima
facie case of discrimination under the ADA, a plaintiff must demonstrate (1) that he is “disabled”
within the meaning of the ADA, (2) that he is qualified to perform the essential functions of the
job, with or without reasonable accommodation, and 3) that he was discriminated against
because of his disability. Hennagir v. Utah Dept. of Corrections, 587 F.3d 1255, 1261 (10th Cir.
2009); Butler v. City of Prairie Vill., 172 F.3d 736, 748 (10th Cir. 1999).
If the plaintiff meets that burden, then the defendant must offer a legitimate, nondiscriminatory reason for the employment action. If the defendant satisfies that burden, the
plaintiff then has the burden of demonstrating that the defendant’s proffered reason is pretextual.
McDonnell Douglas, 411 U.S. at 802-03; Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d
1164, 1170 (10th Cir. 2006). To defeat summary judgment, the plaintiff has to show that “there
is a genuine dispute of material fact as to whether the employer’s proffered reason for the
challenged action is pretextual – i.e., unworthy of belief.” Randle v. City of Aurora, 69 F.3d 441,
451 (10th Cir. 1995). “Mere conjecture that the employer’s reason is pretext . . . will not defeat a
motion for summary judgment.” Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (10th Cir. 1997).
In this case, Spears has failed to establish his prima facie case that he was discriminated
against because of any disability.3 To establish a prima facie case, Spears must show that he was
terminated because of his disability, which “requires [that Spears] present some affirmative
3

The Court need not consider whether Spears’ alleged seizures rendered him disabled
under the ADA, as the Court finds that Spears has failed to present any evidence establishing that
E-Z Mart discriminated against him because of any disability. Nonetheless, the Court notes that
Spears’ alleged seizure disorder does not per se qualify as a disability within the meaning of the
ADA. See, e.g., Landry v. United Scaffolding, Inc., 337 F. Supp. 2d 808, 812 (M.D. La. 2004)
(plaintiff with seizures not disabled where seizures did not substantially limit any major life
activity); EEOC v. Sara Lee Corp., 237 F.3d 349, 352-53 (4th Cir. 2001) (same); Ainsworth v.
Independent Sch. Dist. No. 3 of Tulsa County, Oklahoma, 04-CV-694-JHP, 2006 WL 1548838
(N.D. Okla. May 31, 2006) (same); Durham v. McDonald’s Rest. of Oklahoma, Inc., 07-CV-273JHP, 2008 WL 3992146 (N.D. Okla. Aug. 22, 2008) (same).
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evidence that disability was a determining factor in the employer's decision.” Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997) (citation omitted). In other words, “the plaintiff must
present evidence that, if the trier of fact finds it credible, and the employer remains silent,
[plaintiff] would be entitled to judgment as a matter of law.” Id. (citation omitted). While the
burden is not onerous, it is also “not empty or perfunctory.” Id., quoting Ennis v. National Ass’n
of Bus. & Educ. Radio, Inc., 53 F.3d 55, 59 (4th Cir. 1995).
Here, viewing the record in the light most favorable to Spears, there is no evidence that
E-Z Mart’s decision to terminate plaintiff was due to a disability or seizure disorder. Spears
himself repeatedly asserts that Glass did not believe he was disabled or had seizures, which in
itself tends to refute Spears’ assertion that Glass fired him because of any disability or because
she regarded him as disabled. Moreover, most of Spears’ alleged evidence of discrimination
rests upon information that his cousin purportedly provided him, but the cousin’s testimony
discredits rather than supports Spears’ assertion of a discriminatory motivation behind his
discharge. In short, Spears has not provided any evidence that E-Z Mart discriminated against
him because of a disability. The evidence does not establish or give rise to an inference that
Spears was terminated because of a disability, and the Court concludes that a jury could not
reasonably find for Spears, as his evidence does not present “a sufficient disagreement to require
submission to a jury . . . [but rather the evidence] is so one-sided that [E-Z Mart] must prevail as
a matter of law.” Anderson, 477 U.S. at 251-52.
Even assuming that Spears’ assertions, conjecture and conflicting testimony were to
establish a prima facie case of discrimination, which it does not, E-Z Mart provided significant
evidence that Spears was discharged in accordance with the No-Call / No-Show policy, because
he did not show up or call to explain his absence from work on May 9, 2010. That is a

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legitimate, non-discriminatory reason for termination. To the extent Spears claims that his
cousin provided him a schedule showing that he had been removed from the May 9 shift before
that date and time, the testimony was equivocal, as both Spears and his cousin were unspecific,
contradictory, and confused about the exact timing of the events of the entire week, and the
cousin was unaware whether Spears did or did not actually work on May 9, 2010. (See, e.g.,
Doc. 26-1 at 62-68; Doc. 26-9 at 101-103, 106, 109-110, 113-114).
In the summary judgment briefing, E-Z Mart provided proof that Spears did not call
Glass on May 9, 2010, as Spears claims he did. E-Z Mart’s proof on this point consisted of (1)
Spears’ own interrogatory answers providing the telephone number which he stated he believed
he used to call Glass that day, and (2) Spears’ records for that telephone number, which
established that Spears did not call Glass from that number as he had claimed. Furthermore,
Spears did not provide any evidence to dispute E-Z Mart’s proof and did not provide any records
for alternative telephones that he claims he may have used. Instead, Spears merely purports to
dispute E-Z Mart’s evidence “to the extent that the referenced testimony does not support that
Plaintiff specified from what telephone number he contacted Ms. Glass at the store the morning
of May 9, 2010.” (Doc. 37, p. 6 at ¶ 16). E-Z Mart’s proof was based on the phone number
which Spears provided. Specifically, E-Z Mart provided the Court with Spears’ answers to
interrogatories in which he stated that he “believes his landline was used to call E-Z Mart [on
May 9, 2010] . . . and that number is 918-***-****.” (Doc. 26-15 at 4). E-Z Mart supplied the
records for that phone number, reflecting no calls from it to the E-Z Mart on May 9, 2010. (Doc.
26-16). Spears’ hide-and-seek response is insufficient to refute E-Z Mart’s convincing evidence
on that point. Spears has failed to provide any evidence to support his assertion of pretext.

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In summary, Spears offered no evidence which established that E-Z Mart discriminated
against him because of a disability, whether as part of a prima facie case or as a showing that E-Z
Mart’s evidence of legitimate, non-discriminatory reasons for the termination were in fact
pretextual.

His conjecture that he was discriminated against is not enough to refute the

significant and convincing record evidence provided by E-Z Mart that he was terminated for
legitimate, non-discriminatory reasons, specifically, a violation of E-Z Mart’s No-Call / NoShow policy. Accordingly, summary judgment is proper. See, e.g., Richmond, 120 F.3d at 209
(“Mere conjecture. . . will not defeat a motion for summary judgment.”); Meiri v. Dacon, 759
F.2d 989 (2d Cir. 1985) (discharged employee's conclusory allegations that supervisor conspired
to “get rid” of her, misconceived her work habits because of subjective prejudice against her
religion, that employee heard disparaging remarks but said “don't ask me to pinpoint people,
times or places,” were insufficient to establish that the employer's nondiscriminatory reasons for
discharge were merely a pretext for religious discrimination); Woodbury v. Sears, Roebuck &
Co., 901 F. Supp. 1560 (D. Fla. 1995), citing Carter v. City of Miami, 870 F.2d 578, 585 (11th
Cir. 1985) (plaintiff's subjective opinion that employer's action was discriminatory, without
supporting evidence, is not sufficient to establish pretext so as to avoid summary judgment).
2.

Alleged Failure to Accommodate

With respect to Spears’ reasonable accommodation claim, his only assertion is that his
supervisor at E-Z Mart made him provide a doctor’s note for his absence of several days, while
he asserts that other employees did not have to provide doctor notes for absences. However, E-Z
Mart provided undisputed evidence that it has terminated several other employees for violation
of the No-Call / No Show policy and that other employees who may not have been asked to
provide a doctor’s note requested only one day off of work. Spears also testified that he did not

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need any accommodation to perform the essential functions of his job, and he indicated that he
did not want any accommodation. (Doc. 26-1 at 45-46). There is no genuine dispute of material
fact regarding any failure to accommodate claim.
The failure to accommodate claim also fails because Spears failed to exhaust his
administrative remedies as to such claim. E-Z Mart provided the EEOC charge filed by Spears
(Doc. 26-4) and established that the charge does not include any claim based upon an alleged
failure to accommodate his disability. In response, Spears summarily asserts that he disputes that
point “as a legal conclusion,” but he offers no analysis of the charge to support his summary
denial. There is no genuine issue of material fact relating to Spears’ accommodation claim, and
the failure to accommodate claim must be dismissed because Spears did not exhaust his
administrative remedies for a failure to accommodate. In Jones v. United Parcel Serv., Inc., 502
F.3d 1176, 1186-87 (10th Cir. 2007), the court determined that a plaintiff failed to exhaust a
claim for failure to accommodate because the EEOC charge did not include allegations of any
failure to accommodate. The court reasoned that the plaintiff failed to exhaust because the
charge did not include any specific facts that would prompt an investigation of the plaintiff’s
claim that his employer failed to accommodate his perceived disability. Jones, 502 F.3d at 1187.
Like the plaintiff in Jones, Spears failed to exhaust his administrative remedies as to any claim
for failure to accommodate, and that claim must be dismissed.
B.

Oklahoma Discrimination Claim

Under the Oklahoma anti-discrimination act (“OADA”), “[i]t is a discriminatory practice
for an employer . . . [t]o fail or refuse to hire, to discharge, or otherwise to discriminate against
an individual with respect to compensation or the terms, conditions, privileges or responsibilities
of employment, because of race, color, religion, sex, national origin, age, genetic information or

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disability, unless the employer can demonstrate that accommodation for the disability would
impose an undue hardship on the operation of the business of such employer.” Okla. Stat. tit. 25,
§ 1302(A)(1). “Because the protections provided by the OADA are ‘co-extensive with the
protections provided by federal law under the ADA,’ a plaintiff's OADA claim fails ‘if her
federal discrimination claims fail.’” Hamilton v. Oklahoma City Univ., CIV-10-1254-D, 2012
WL 5949122 (W.D. Okla. Nov. 28, 2012) (quoting McCully v. American Airlines, Inc., 695 F.
Supp. 2d 1225, 1246–47 (N.D. Okla. 2010); Stanley v. White Swan, Inc., 2002 WL 32061753, at
*11 (W.D. Okla. Sept. 26, 2002)). For the same reasons Spears’ ADA claims fail, his claims
under the OADA cannot survive summary judgment.
C.

Intentional Infliction of Emotional Distress

Spears has asserted a claim under Oklahoma law for intentional infliction of emotional
distress (“IIED”), premised on the same allegations upon which he bases his disability claims.
To establish a claim for IIED, Spears must prove that: (1) E-Z Mart acted intentionally or
recklessly; (2) E-Z Mart’s conduct was extreme and outrageous; (3) Spears actually experienced
emotional distress; and (4) Spears’ emotional distress was severe. Taylor v. Pepsi-Cola Co., 196
F.3d 1106, 1111 (10th Cir. 1999), citing Gaylord Enter. Co. v. Thompson, 958 P.2d 128, 149
(Okla. 1998) and Restatement (Second) of Torts § 46. Spears must show that E-Z Mart’s
conduct exceeded “all possible bounds of decency” or was “utterly intolerable in a civilized
community.” Taylor, 196 F.3d at 1111 (citations omitted). In the employment context, courts
have consistently applied a very high threshold before recognizing a cause of action for
intentional infliction of emotional distress under Oklahoma law. See, e.g., Eddy v. Brown, 715
P.2d 74, 77 (Okla. 1986). The trial court is to act as a “gatekeeper” and initially determine, as a
matter of law, if the defendant's alleged conduct is sufficiently extreme and outrageous, as

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defined in Restatement of Torts (Second) § 46, to allow recovery. See Trentadue ex rel. Aguilar
v. United States, 397 F.3d 840, 856, n.7 (10th Cir. 2005); see Eddy, 715 P.2d at 76.
While the requirements to establish a claim for IIED are clear, Spears points to no facts in
the record which establish that E-Z Mart’s conduct was outrageous, utterly intolerable, or beyond
all bounds of decency. Instead, his claim is premised upon his allegation of discrimination, his
assertion that Glass required him to provide a doctor’s note the day he called in, and his
contention that Glass required him to speak directly to her the day he (and his mother) called
Glass to report that he was sick. The Court has determined that those assertions, taken in the
light most favorable to Spears, do not establish any genuine dispute of material fact supporting
his claim of discrimination. For the same reasons, the Court concludes, as a matter of law, that
the allegations do not rise to the level of sufficiently extreme or outrageous conduct as to
establish an IIED claim.
IT IS THEREFORE ORDERED that the defendant’s Motion for Summary Judgment
(Doc. 26) is granted. A separate judgment will be entered forthwith.
IT IS FURTHER ORDERED that the parties’ pending motions in limine (Doc. 24, 25)
are moot.
IT IS SO ORDERED this 26th day of March, 2013.

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