Hoy v. Country Pride Cooperative, Inc.
OPINION ORDER granting in part and denying in part 14 Motion for Summary Judgment. Signed by U. S. District Judge Roberto A. Lange on 3/30/12. (CMS)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
COUNTRY PRIDE COOPERATIVE,
MAR 30 2012
OPINION AND ORDER
GRANTING IN PART
AND DENYING IN PART
DEFENDANT'S MOTION FOR
Plaintiff Sandra Hoy ("Hoy") sued Defendant Country Pride Cooperative, Inc. ("Country
Pride"), alleging that Country Pride violated the Americans with Disabilities Act ("ADA") with
regard to Hoy's employment. Country Pride filed a Motion for Summary Judgment, Doc. 14,
which Hoy resisted.
I. Undisputed Material Facts
Hoy worked at Platte Cooperative Association (,'Platte Cooperative") in Platte, South
Dakota, as a bookkeeper/secretary from November of 1974 until sometime in 2007. 1 Doc. 16
at ~ 1; Doc. 24 at ~ 1. Hoy has suffered with rheumatoid arthritis since childhood, began having
Under Rule 56 of the Federal Rules of Civil Procedure, this Court at this stage of the case
must resolve all genuine disputes of material fact in favor of Hoy as the non-moving party. As
will become apparent later in this Opinion, there is a significant dispute of fact over whether Hoy
ever worked for Country Pride, or somehow was continued as an employee of Platte Cooperative
Association after that entity was merged into Country Pride and apparently ceased operations. In
Plaintiffs Responsive Statement of Material Facts, Plaintiff admits to being a
bookkeeper/secretary for Platte Cooperative "from November 1974 to December 31, 2007."
Doc. 24 at ~ 1. However, throughout the remainder of Hoy's material resisting summary
judgment, she clearly puts at issue whether she was working for Country Pride or Platte
Cooperative after the merger and apparent cessation of operations of Platte Cooperative in
September of 2007. See Doc. 24 at ~~ 47,48,50,51,53,54,57,61,62, 71; Doc. 23; Doc. 27.
significant problems with how this autoimmune disease affected her hip by age 17 or 18, had a
total hip replacement at age 18, and has undergone joint replacement in both her knees and her
shoulders. Doc. 23 at ~~ 2-3. Over the years, Hoy has had all the joints removed from her toes,
has had her right knee joint completely removed, and had her left hip joint replaced with a bar.
3-4. During part of her employment with Platte Cooperative, Hoy used a walker to
ambulate. By 2005, Hoy was using a wheelchair for mobility. Id. at
5. Hoy has lived
essentially her entire life in the town of Platte, living in recent years in a horne with her friend
Ron Sternburg, who assists her with many of her daily activities ofliving. Id. at ~~ 1,9.
Hoy worked for approximately 33 years at Platte Cooperative. For much of the time,
including all times relevant to resolution of the Motion for Summary Judgment, Platte
Cooperative had just three other full-time employees-general manager Gene Gukeisen and
laborers/delivery men Vernon League and Mike Schoenrock. Doc. 16 at ~~ 1,3; Doc. 24 at ~~
I, 3. Platte Cooperative was in the business of serving its cooperative members with propane,
fuel oil, gas, and diesel sales and delivery; tire service; and feed and farm products sales and
delivery. Doc. 16 at ~ 2; Doc. 24 at ~ 2. Gukeisen, League, and Schoenrock delivered fuel, feed
and farm products, and fixed tires. Doc. 16
3; Doc. 24 at
3. Hoy did bookkeeping and
secretarial functions, including answering the phone, cleaning until her physical condition no
longer permitted her to do so, turning on fuel pumps for customers, payroll, and handling mail
and bank deposits, among other things. Doc. 16 at ~ 5; Doc. 24 at ~ 5.
Hoy's rheumatoid arthritis had progressively limited her ability to walk, stand, carry, lift,
and perform certain work. Doc. 16 at ~ 6; Doc. 24 at ~ 6; Doc. 23 at ~~ 2-6. After Hoy became
wheelchair dependent, Platte Cooperative hired Vicky Kimball to clean once a week. Doc. 23
at ~ 15. Hoy sometimes relied on her friend Ron Sternburg, who was not an employee ofPlatte
Cooperative, to assist her in performing some of her job functions, such as driving her to Platte
Cooperative's bank and the post office, turning on a fuel pump switch at Platte Cooperative
which Hoy could not reach from her wheelchair, and assisting her in transfers to and from her
wheelchair and the Platte Cooperative toilet which was at a standard height. Doc. 23 at ~~ 37 -39.
In November of 2006, the Board of Directors of Platte Cooperative passed a motion to
recommend that Hoy "take her retirement" because "there needed to be a change in the secretarial
position." Doc. 23 at ~ 22. Platte Cooperative gave various reasons for the vote, including Hoy's
lack of productivity, Hoy's declining ability to perform work, and Hoy's reportedly souring
attitude. Doc. 16 at~~ 9, 11; Doc. 23 at~ 25. Platte Cooperative let Hoy know that they wanted
her to quit her job and take early retirement, or else they would fire her. Doc. 23 at ~ 26.
After being told of the Platte Cooperative Board decision that she should retire or risk
being fired, Hoy called the South Dakota Department of Labor. Id. at
30. In December of
2006, Hoy left a note for the Platte Cooperative Board advising that she had approached the
Department ofLabor about her rights and that she did not intend to resign. Doc. 16 at,-r 12; Doc.
12. The Platte Cooperative Board sought legal advice, and the attorney for Platte
Cooperative wrote to Sternburg telling him to cease and desist from "taking any action at the Co
op that should be handled by Co-op employees," or risk being barred from the premises. Doc.
The Platte Cooperative Board then wrote to Hoy, acknowledged that she had turned
down early retirement, and identified inadequacies in her performance of her job duties. Id. at
,-r 40. The Platte Cooperative Board, for the first time in its history with respect to any employee,
listed the essential functions of Hoy's job: greeting customers, turning on the gas pump, writing
out tickets for customers, assisting customers who are purchasing products, running deposits and
other errands to the bank, running mail to and from the post office, running errands for the office,
bookkeeping, cleaning the office, doing inventory of the store, answering phones, and payroll.
Doc. 23 at ~ 41; Doc. 16 at ~ 16; Doc. 24 at ~ 16. The Platte Cooperative Board advised Hoy of
customer complaints, taking too much overtime, and failing to do such things as inventory and
cleaning. Doc. 16 at ~ 17; Doc. 24 at
17. Hoy had not been able to perform inventory and
cleaning for a number of months and had allowed her friend and at times customers to tum on
the gas pump and assist in certain tasks. Doc. 16 at ~ 20; Doc. 24 at ~ 20. The Board directed
Hoy to discontinue from having non-employees assist her with such job duties. Doc. 16 at ~ 18;
Doc. 24 at ~ 18.
On January 15,2007, Hoy met with the Platte Cooperative Board to discuss her request
for accommodations in her job. Hoy, whose rheumatoid arthritis affects her dexterity, requested
a computer update to reduce times when she has to hand-write tickets, a change in inventory
practice, installation of an intercom for her to call for help to the employees in a backroom,
moving the fuel pump switch to be within reach of her when she was in a wheelchair, moving
a bookshelf to a lower position, and installing a wheelchair-accessible toilet. Doc. 23 at ~ 44.
The Platte Cooperative Board initially agreed to many ofthese accommodations, but ultimately
did not make them, in part because of financial reasons and in part because it then decided to
merge with another entity and discontinue operations. Doc. 23 at ~~ 45,49. Platte Cooperative
restructured the jobs of the three other employees, so that Hoy would not be left alone at Platte
Cooperative and would have another employee available to help her. Doc. 16 at ~ 29; Doc. 24
In 2006 and 2007, Platte Cooperative's financial situation was so perilous that it
questioned whether it could continue business beyond 2007. Doc. 16 at ~ 32; Doc. 24 at ~ 32.
Carl Dickinson, the general manager of Country Pride, approached Gene Gukeisen, the general
manager of Platte Cooperative, regarding a possible merger. Doc. 16 at ~ 33; Doc. 24 at ~ 33.
Country Pride is a business based out ofWinner, South Dakota, which has 13 locations in South
Dakota, providing services and products similar to that of Platte Cooperative. Doc. 16 at ~ 34;
Doc. 24 at
34. Dickinson met with the Platte Cooperative Board on February 22, 2007,
regarding a possible merger. Doc. 16 at
33; Doc. 24 at
In June of 2007, the Platte
Cooperative Board passed a resolution to proceed with a merger with Country Pride. Doc. 16
35; Doc. 24 at
35. The terms of the merger were reduced to a written Unification
Agreement dated July 27,2007. Doc. 17-19; Doc. 23 at ~ 54. The voting patrons of the Platte
Cooperative approved the merger in August of2007. Doc. 16 at ~ 36; Doc. 24 at ~ 36.
The Unification Agreement called for a merger whereby substantially "all assets ofPlatte
Cooperative become assets of Country Pride and Platte members become members of Country
Pride." Doc. 17-19; Doc. 23 at ~ 54. Under the Unification Agreement, Platte Cooperative was
required to terminate the employment of all of its employees effective August 31,2007. Doc.
17-19 at ~ 9.g; Doc. 23 at ~ 57; Doc. 16 at ~ 40; Doc. 24 at ~ 40. Country Pride thereafter was
to provide all personnel necessary to complete winding up ofPlatte Cooperative's business. Doc.
17-19 at~ 14.c. The merger date initially was contemplated as being September 1,2007, but was
moved to October 1,2007. Doc. 16 at ~ 37; Doc. 24 at ~ 37. As a result, Platte Cooperative
terminated all of its employees effective September 30,2007. Doc. 23 at ~ 57; Doc. 16 at ~ 40;
Doc. 24 at ~ 40.
All Platte Cooperative employees who wanted to be considered for employment with
Country Pride had to apply for a job. Doc. 16 at ,-r 41; Doc. 24 at ,-r 41. Hoy applied for
employment in "secretarylbookkeeping." Doc. 16 at,-r 42; Doc. 24 at,-r 42. Country Pride hired
the other three full-time Platte Cooperative employees-Gene Gukeisen, Vernon League, and
Mike Schoenrock. Doc. 16 at,-r 43; Doc. 24 at,-r 43. Country Pride, during the course of its
negotiation ofthe Unification Agreement and merger with Platte Cooperative, learned that Hoy
was in a wheelchair, that Hoy did not want to work part time, and that Hoy had threatened some
type oflitigation. Doc. 23 at,-r 56; Doc. 25-21 at p. 6-7 of21. Country Pride did not want to hire
Hoy as a permanent employee.
Country Pride general manager Dickinson and Platte
Cooperative's manager Gukeisen met with Hoy shortly before the merger. During the meeting,
Dickinson told Hoy that she would not have ajob with Country Pride. As had been authorized
by Dickinson, Gukeisen, according to Hoy, then told Hoy that she could continue to
work-ostensibly for Platte Cooperative-until the end of the year, at which time she could get
her retirement and perhaps could go on Social Security Disability Insurance ("SSDI"). Doc. 23
at,-r,-r 74-75. Dickinson acknowledged that Country Pride came up with this idea in part because
Country Pride wanted Hoy to help wind down the business of Platte Cooperative and in part
because "Country Pride did not want to open itselfup to anymore liability than we had to." Doc.
23 at,-r 77. Country Pride claims that it did not hire Hoy because no position existed in Platte
for a secretarylbookkeeper, but Hoy did continue to work in Platte at the Country Pride location
through December 31,2007. See Doc. 16 at,-r,-r 1,44.
Platte Cooperative appears to have dissolved as of the date of the merger. Doc. 23 at,-r
61; see Doc. 17-19 at,-r,-r 9.g, 13, 14.c. As a result, Platte Cooperative apparently ceased to exist
on October 1, 2007? Id. Country Pride took over the Platte Cooperative store on October 1,
2007. Hoy continued at this new Country Pride store in Platte doing book work to convert Platte
Cooperative records to Country Pride records, paying remaining Platte Cooperative debts,
answering the phone and taking orders from customers for Country Pride, and filling out tickets
for Country Pride customers. Doc. 16 at
47,50; Doc. 24 at ~~ 47,50; Doc. 80. After the
merger, Country Pride planned to and did do the bulk ofthe bookkeeping for the Country Pride
store in Platte at its headquarters in Winner. Hoy did the payroll for herself, paid Platte
Cooperative bills and taxes, and used a Platte Cooperative checking account for these purposes.
Doc. 16 at
47-48; Doc. 24 at
47-48. Hoy was the only employee paid from the Platte
Cooperative account following the merger. Doc. 16 at ~ 54; Doc. 24 at ~ 54. Consistent with
what she had been told, Hoy testified during her deposition that she was not a Country Pride
employee during this time, but worked for Platte Cooperative. Doc. 16 at ~ 59; Doc. 24 at ~ 59.
On October 25, 2007, Hoy applied for SSDI benefits advising the Social Security
Administration that she was totally disabled as of October 7,2007. Doc. 16 at ~ 68; Doc. 24 at
68. Hoy's physician opined that she was one-hundred percent disabled because she was in a
wheelchair and had difficulty with transfers. Doc. 16 at
69; Doc. 24 at
69. The Social
Security Administration determined Hoy to be disabled as ofNovember 30, 2007, and the award
of benefits began on June 25, 2008. Doc. 16 at ~ 70; Doc. 24 at ~ 70. Hoy herself testified that
2 The website of the Secretary of State of the State of South Dakota shows that Platte
Cooperative last filed an annual statement in January of2007 and has been administratively
dissolved by the Secretary of State for failure to file an annual statement. South Dakota
Secretary of State, http://sdsos.govlbusiness/Documents.aspx?cid=coooo 154 (last visited March
by December 31, 2007, she was totally disabled and could not lift, stand, or carry. Doc. 16 at ~
71; Doc. 24 at~ 71. Hoy's last day of work was December 31,2007.
Country Pride maintains that it did not initially intend to hire a clerk for the Platte
location. Toward the end of 2007, the manager of the Country Pride location in Platte was
requesting the hiring of a clerk, so that he could do more work off site. Doc. 23 at ~~ 99-100.
At Dickinson's request, the manager drafted a written job description, something Country Pride
had not previously done for a clerk position. Doc. 23 at
101-102. The job description
contained certain physical requirements-lifting up to 70 pounds, tire repair, and driving a feed
truck and forklift-that ultimately were not part of the clerk's job and that Hoy believes were
drafted intentionally to exclude her from being qualified for such a job. Doc. 23 at ~~ 103-106.
The job description also included cleaning, stocking shelves, entering tickets, waiting on
customers, and reconciling daily bank statements, but did not include paying bills or handling
payroll. Doc. 16 at~~ 74-75; Doc. 24 at~~ 74-75. This clerk job was to be a part-time job and
was posted at Country Pride in Platte. Doc. 16 at~ 76; Doc. 24 at~ 76. Hoy claims that she did
not see the posting. Hoy, some months previously, had applied for a secretarial and bookkeeping
position, but the clerk job description listed different job duties, some of which were outside of
Hoy's physical abilities. When no one applied for the clerk position, the manager of Country
Pride in Platte asked Vicky Kimball, the same person who had worked in cleaning and
occasionally to substitute for Hoy, to apply. Kimball was hired in February of 2008 to fill the
new position. Doc. 16 at ~ 82; Doc. 24 at ~ 82. Kimball did not help with tire repair, operate a
forklift, lift up to 70 pounds, or drive a feed truck, which were some of the duties listed in the
job description, but she did wait on customers, clean, greet customers, stock shelves, and enter
tickets. Doc. 16 at ~~ 74,82; Doc. 24 at ~~ 74,82.
Kimball left the clerk job in or before June of 2008. At that time, Country Pride
advertised for a clerk position, but Hoy did not apply. Country Pride hired Suzanne Barbee in
June of2008. Barbee cleaned, waited on customers, loaded oil and feed, and fixed tires. Doc.
16 at ~ 85; Doc. 24 at ~ 85. The clerkjob opened up again in February of201 0, and Hoy again
did not apply for it. Hoy has not applied for a single job with any employer since her application
to Country Pride in the Fall of2007. Doc. 16 at ~ 87; Doc. 24 at ~ 87.
On May 22, 2008, Hoy filed a charge of discrimination with the Equal Employment
Opportunity Commission ("EEOC"). Doc. 16 at ~ 96; Doc. 24 at ~ 96. Hoy did not raise in her
charge ofdiscrimination any complaint about a lack ofaccommodations in her employment, nor
did she ever amend her charge to assert claims about a lack of accommodations. Doc. 16 at .
98; Doc. 24 at ~ 98. The EEOC neither addressed nor made any determination regarding an issue
of lack of accommodations. Doc. 16 at
101; Doc. 24 at ~ 101. The EEOC determined that
there was reasonable cause to believe that Hoy had been discriminated against when Country
Pride did not offer her continued employment. Doc. 16 at ~ 100; Doc. 24 at ~ 100.
A. Summary Judgment Standard
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper
when "the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter oflaw." Summary judgment is not "a disfavored procedural
shortcut, but rather ... an integral part of the Federal Rules as a whole, which are designed 'to
secure the just, speedy, and inexpensive detennination of every action. m
Celotex Corp. v.
Catrett, 477 u.s. 317, 327 (1986) (quoting Rule 1 of the Federal Rules of Civil Procedure). On
summary judgment, courts view "the evidence and the inferences that may be reasonably drawn
from the evidence in the light most favorable to the nonmoving party." E.E.O.C. v. CRST Van
Expedited, Inc., 2012 WL 555510, at *20 (8th Cir. Feb. 22, 2012). A party opposing a properly
made and supported motion for summary judgment must cite to particular materials in the record
supporting the assertion that a fact is genuinely disputed. Fed. R. Civ. P. 56(c)(1); Gacek v.
Owens & Minor Distrib., Inc., 666 F.3d 1142, 1145 (8th Cir. 2012).
B. Country Pride as a Defendant
Country Pride argues that Hoy never was employed with Country Pride and thus has no
viable claim against Country Pride. Doc. 15 at 6-9. According to Country Pride, Hoy remained
employed with Platte Cooperative after the merger from October 1 through December 31, 2007.
There is no doubt that Country Pride wanted to distance itself from employing Hoy. The irony
ofCountry Pride's position is, however, Platte Cooperative apparently was merged into Country
Pride and thus apparently ceased to exist after the October 1, 2007 merger. 3 See Doc. 17-19.
Equally ironic, the best evidence that Hoy may not have been a Country Pride employee
comes from Hoy who testified during her deposition:
You knew that you were not a Country Pride employee,
did you not?
Under South Dakota law, SDCL § 47-18-3, "After the effective date ofa merger or
consolidation, the cooperatives which are parties to the plan become a single cooperative ...
[t]he separate existence of all cooperatives which are parties to the plan, except the surviving or
new cooperative, then ceases."
Doc. 17-1 at p. 60 of 78. Country Pride invokes the familiar axiom from South Dakota state
court that a party opposing summary judgment cannot "assert a better version of the facts than
[her] prior testimony and 'cannot now claim a material issue offact which assumes a conclusion
contrary to [her] own testimony.'" Vaughn v. John Morrell & Co., 2000 S.D. 31,
N.W.2d 919,926 (quoting Loewen v. Hyman Freightways, Inc., 1997 S.D. 2, ~ 16,557 N.W.2d
This Court would have no hesitation in applying this principle when a party is testifying
under oath about a subject that the party knows as a matter of fact or when judicial estoppel
would prevent a party from later taking an opposite or contrary legal position. 4 However, there
are several reasons why this principle of South Dakota law does not conclusively establish Hoy
to have never been in actuality an employee of Country Pride. First, the principle that a party
opposing summary judgment cannot "assert a better version of the facts than [her] prior
Hoy's inconsistent positions do not rise to the level of invoking judicial estoppel to prevent
her from now claiming she was a Country Pride employee. In considering whether to apply the
doctrine ofjudicial estoppel, this Court must look to three factors:
First, a party's later position must be clearly inconsistent with its earlier
position. Second, courts regularly inquire whether the party has succeeded in
persuading a court to accept that party's earlier position, so that judicial acceptance
of an inconsistent position in a later proceeding would create the perception that
either the first or the second court was misled. Absent success in a prior proceeding,
a party's later inconsistent position introduces no risk of inconsistent court
determinations, and thus poses little threat to judicial integrity. A third consideration
is whether the party seeking to assert an inconsistent position would derive an unfair
advantage or impose an unfair detriment on the opposing party if not estopped.
Stallings v. Hussmann Corp., 447 F.3d 1041, 1047 (8th Cir. 2006) (quoting New Hampshire v.
Maine, 532 U.S. 742, 750-51 (2001)). Here, Hoy's statement that she was employed with Platte
Cooperative after the merger has not been adopted by any prior court, presents little risk of
inconsistent court determinations, and does not result in an unfair advantage to her or unfair
detriment to Country Pride if there is no judicial estoppel.
testimony" is a procedural, not substantive, rule oflaw, and thus is not binding on a federal court.
See Sayre v. Musicland Group, Inc., a Subsidiary of Am. Can Co., 850 F.2d 350, 353 (8th Cir.
1988) ("Reference to state law can be helpful, but it is certainly not required when a federal court
decides a purely procedural question.") Second, the claims in this case are governed by a federal
statute-the ADA-rather than by state law as in a diversity jurisdiction case.
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4520 (2d. ed. 2011) C'[T]he
choice of applicable law turns upon the source of the right or issue being adjudicated. "). Third,
this principle ought not to apply when a party is testifying to an understanding of a situation
gained from other individuals or to a conclusion that appears to be contrary to the facts. In this
case, there is no doubt that the general managers of Country Pride and Platte Cooperative
attempted to create an arrangement where Hoy would remain employed with Platte Cooperative,
even after Platte Cooperative apparently stopped to exist as a separate legal entity. See Doc. 17
19 at~~·I, 9.g, 13, 14.c. The general managers ofCountry Pride and Platte Cooperative told Hoy
that she was not being hired by Country Pride, but rather would remain employed with Platte
Cooperative through December 31,2007. Under these circumstances, this Court cannot take the
excerpt of Hoy's deposition-testimony in part based on what she was told-to foreclose her
from a claim that it was Country Pride that employed her from October 1 through December 31,
2007. At a minimum, there is a genuine question of fact regarding that issue, given that Platte
Cooperative appeared to be merged into Country Pride as of October 1, 2007, and thereafter
ceased to exist.
Under federal law, to qualify for protection under the ADA, a plaintiff must be an
"employee" under 42 U.S.c. § 12111(4). An "employee" is tautologically defined as an
individual employed by an employer.
The Supreme Court of the United States has
considered two different methods to determine employee status under the ADA-the payroll
method, Walters v. Metro. Educ. Enter., Inc., 519 U.S. 202,206-07 (1997); and the common law
definition ofthe master-servant relationship, Clackamas Gastroenterology Assoc., P.e. v. Wells,
538 U.S. 440, 448 (2003). Under the payroll approach, Hoy might be considered an employee
of Platte Cooperative, because she never was on the payroll for Country Pride, although postmerger Country Pride controlled the account of Platte Cooperative. See Doc. 17-19 at
Under the common law definition ofthe master-servant relationship, the test primarily is one of
control of the employee. Here, it is unclear who had control over Hoy's employment from
October 1,2007 to December 31,2007. Hoy remained working at the Platte location ofCountry
Pride where there was a manager and an assistant manager both employed by Country Pride at
the time. Although Country Pride disclaims authority over Hoy during that time frame, Country
Pride under the Unification Agreement actually was the entity obligated to provide all personnel
necessary to complete the winding up of Platte Cooperative's business. s Doc. 27 at p. 6; Doc.
17-19 at ~ 14.c. According to Hoy, she assisted Country Pride customers, transferred records of
Platte Cooperative to the Country Pride system, followed directives of Country Pride on paying
herself, and used a checking account of Platte Cooperative that was under the actual control of
Country Pride. Doc. 24 at ~~ 47-48. Under these circumstances, particularly with fact questions
The Unification Agreement, at paragraph 14.c. stated: "Country Pride will pay for and
provide Platte [Cooperative] with all necessary equipment, personnel, and assistance necessary to
complete the liquidation and winding up of the affairs of Platte [Cooperative] which Country
Pride may charge against [Platte Cooperative] equities on the books of Country Pride." Doc. 17
19 at~ 14.c.
existing about whether Platte Cooperative remained a separate legal entity after the merger,
summary judgment is not appropriate to grant.
C. Claim for Lack of Accommodation
Hoy's Complaint contains a single cause of action for violation of the ADA. Doc. 1.
Some ofthe allegations in her Complaint, and indeed portions ofthe Statement ofMaterial Facts
from both parties, refer to Hoy's requests for accommodations to Platte Cooperative pre-dating
its merger with Country Pride. Hoy admits that she made no claim concerning any lack of
accommodations in her charge of discrimination before the EEOC, nor did she suffer any
damages as a consequence of the lack of accommodations from Platte Cooperative. Doc. 16 at
98-101; Doc. 24 at ~~ 98-101.
A person making a claim under the ADA must exhaust administrative remedies before
bringing suit in federal court. Cottrill v. MFA, Inc., 443 F.3d 629, 634 (8th Cir. 2006); Ross v.
Advance Am. CashAdvanceCtrs., Inc., 605 F. Supp. 2d 1025, 1031 (E.D. Ark. 2009);42 U.S.C.
§ 2000e-5(e). To do so, a claimant is to file an administrative charge with the EEOC that is
sufficiently precise to identify the parties and to describe generally the action or practices
complained about. Cottrill, 443 F.3d at 634; Nichols v. Am. Nat'l Ins. Co., 154 F.3d 875, 886
(8th Cir. 1998); see also 29 C.F.R. § 1601. 12(b). The court should "liberally construe an
administrative charge" when it considers whether there has been an exhaustion of remedies.
Cottrill, 443 F.3d at 635. Yet, the charge must be sufficient "to give the employer notice ofthe
subject matter ofthe charge and identify generally the basis for a claim." Humphries v. Pulaski
Cnty. Special Sch. Dist., 580 F.3d 688, 697 (8th Cir. 2009).
Hoy has admitted that her charge ofdiscrimination filed with the EEOC did not contain
any claim ofa lack of accommodation. Doc. 16 at ~~ 98-1 01; Doc. 24 at ~ 98-101. Hoy cannot
now make such a claim in this lawsuit against Platte Cooperative or its alleged successor in
D. Successor Liability Issue
Country Pride argues that it does not bear any successor liability for actions of Platte
Because there is no viable claim in this case concerning the lack of
accommodations provided by Platte Cooperative and because there is a genuine issue ofmaterial
fact as to whether Country Pride was the actual employer ofHoy after October 1, 2007, the issue
of alleged lack of successor liability as a grounds for summary judgment becomes somewhat
moot. However, because that issue may affect whether Hoy has any claim related to conduct
attributable to Platte Cooperative, this Court will address the issue.
The question of successor liability, within the Eighth Circuit, is considered using nine
factors set forth in EEOC v. MacMillan Bloedel Container, 503 F.2d 1086, 1094 (6th Cir. 1974).
See Prince v. Kids Ark Learning Ctr., LLC, 622 F.3d 992,995 (8th Cir. 2010) (adopting and
applying the MacMillan factors). The MacMillan factors are:
whether the successor company had notice of the charge;
the ability of the predecessor to provide relief;
whether there has been a substantial continuation of
whether the new employer uses the same plant;
whether the new employer uses the same or substantially
the same work force;
whether the new employer uses the same or substantially
the same supervisory personnel;
whether the same jobs exist under substantially the same
whether the new employer uses the same machinery, equipment,
and methods of production; and
whether the new employer produces the same product.
MacMillan Bloedel Container, 503 F.2d at 1094. The Eighth Circuit considers these factors, but
the "ultimate inquiry always remains whether the imposition of the particular legal obligation at
issue would be equitable and in keeping with federal policy." Kids Ark, 622 F.3d at 995
The analysis under the MacMillan factors results in a mixed picture. Country Pride had
some notice that Hoy and Platte Cooperative had been at odds concerning Hoy's job performance
and accommodations ofher disabilities. Platte Cooperative, notwithstanding its financial stress,
had the ability to provide accommodations to Hoy. Country Pride has substantially continued
the business operations ofPlatte Cooperative, using the same plant, the same workforce except
arguably for Hoy, and some of the same machinery and equipment and methods. However,
Country Pride uses different supervisory personnel, manages the business differently, and does
not presently employ a secretarylbookkeeper in Platte, but rather a clerk with somewhat different
responsibilities. Country Pride has the same sort ofbusiness as Platte Cooperative did. In short,
the MacMillan factors do not provide a clear answer to whether successor liability ought to
extend to Country Pride for conduct of Platte Cooperative.
Country Pride points to the Kids Ark case as being analogous. In Kids Ark, a mother
faced closure of a daycare business due to, among other things, licensure problems. Kids Ark,
622 F.3d at 993. A daughter, at the mother's urging, sought a new daycare license, leased the
building and assets from her mother, hired her mother's five employees and an office manager,
and started operation of a daycare in the same location serving the same customer base. The
Eighth Circuit, after noting that application of the MacMillan factors produced mixed results,
chose not to impose successor liability because the mother's operation could not stay in business
and the new management and new financing demonstrated an absence of connection between
the formation of the daughter's business and the claim of discrimination that the mother was
facing for one of her employees.
Unlike this case, Kids Ark involved a start-up business. The transaction between Country
Pride and Platte Cooperative, however, was a merger. Albeit, this was not a merger of equals:
Platte Cooperative faced financial stress and appears to have ceased to exist following the
merger. However, the Unification Agreement was not an asset purchase or similarly structured
transaction where Country Pride was expressly not acquiring liabilities of Platte Cooperative.
Under South Dakota law, when two cooperatives merge, the surviving cooperative "possesses
all the rights and all the property of each of the individual cooperatives, and is responsible for
all their obligations." SDCL § 47-18-4. Under the circumstances, Country Pride is not entitled
to summary judgment based on an argument of having no successor liability.
E. ADA Claim Against Country Pride for Termination of Employment
A plaintiff alleging discrimination based on a disability under the ADA must establish
a prima facia case by having evidence of the following three elements: (I) the plaintiff has a
disability within the meaning of the ADA; (2) the plaintiff is qualified to perform the essential
functions of the job, with or without reasonable accommodation; and (3) the plaintiff suffered
an adverse employment action due to a disability. Chalfant v. Titon Distrib., Inc., 475 F.3d 982,
988 (8th Cir. 2007); Wenzel v. Missouri-Am. Water Co., 404 F.3d 1038, 1040 (8th Cir. 2005).
There is no question in this case that Hoy has a disability within the meaning of the ADA.
Country Pride seeks summary judgment because it believes that the two other elements-that
Hoy was qualified to perform the essential functions of the job, with or without reasonable
accommodations, and that Hoy suffered an adverse employment action due to her disability-are
The ADA protection extends only to "a qualified individual with a disability." Benson
v. Northwest Airlines, Inc., 62 F.3d 1108, 1111 (8th Cir. 1995)(citing 42 U.S.C. § 12112(a)).
This in turn involves a two-part analysis: "(1) whether the individual meets the necessary
prerequisites for the job, such as education, experience, training and the like; and (2) whether the
individual can perform the essential job functions, with or without reasonable accommodation."
Benson, 62 F.3d at 1111-12; 42 U.S.c. § 12114(8). Country Pride does not dispute the first
prong ofthis test, but maintains that, as a matter oflaw, Hoy could not perform the essential job
functions, with or without reasonable accommodation.
An essentialjob function "means the fundamental job duties ofthe employment position
the individual with a disability holds or desires" and does not include the marginal functions of
the position. 29 C.F.R. § I 630.2(n)(1 ); Moritz v. Frontier Airlines, Inc., 147 F.3d 784, 787 (8th
Cir. 1998). In looking at essential job functions, factors include the employer's judgment as to
what functions are essential, written job descriptions prepared before advertising or interviewing
applicants for the job, the amount of time spent on the job performing each function,
similar jobs. Moritz, 147 F. 3d at 787; 29 C.F.R. § 1630.2(n)(3). It is not for a court to "second-
guess the business decisions of employers." Dorsey v. Pinnacle Automation Co., 278 F.3d 830,
consequences of not performing the function, and the current work experience of those doing
837 (8th Cir. 2002).
Taking the facts in the light most favorable to Hoy as the party opposing summary
judgment, Hoy was able to perform the essential job functions, with or without reasonable
accommodations, ofherjob as a bookkeeper/secretary for Platte Cooperative. However, as Hoy
acknowledges, Platte Cooperative apparently came to an end effective October 1, 2007, thereby
ending that position.
Hoy was then hired-whether by Platte Cooperative or Country Pride is a genuine dispute
of material fact on this record-to assist in winding down Platte Cooperative business and to
provide assistance to Country Pride in transferring information to Country Pride's computer
system, answering phones, and providing some services to customers who came to the Platte
location of Country Pride between October 1, 2007 and December 31, 2007. Hoy was able to
perform the essential functions ofthat job, with or without reasonable accommodation. Hoy lost
that job on December 31, 2007, which constitutes an adverse employment action. Any claim
Hoy has for violation of the ADA through termination of her position survives summary
As it relates to any claim for not being hired for the subsequent position of clerk, Hoy
admits that she did not meet the job duties as listed in the job description written by Country
Pride. However, there exists a substantial question of fact over whether Country Pride wrote the
job description intentionally to exclude Hoy. The clerk's job description-which included a 70
pound weight lifting requirement, the need to drive a feed truck and forklift, and assisting in tire
repair-were ones that Country Pride itself did not apply in its choice ofwhom to hire as a clerk
in Platte. Some ofthe other job functions--enter tickets, wait on customers, and reconcile daily
bank statements-were ones within the realm of what Hoy could do with reasonable
accommodation and had in fact been doing. The remaining description ofthe job--cleaning and
stocking shelves-are ones that Hoy probably could not perform, even with accommodations.
This Court is mindful that "an employer is not required to create a new position as an
accommodation" under the ADA. Cravens v. Blue Cross and Blue Shield of Kansas, 214 F.3d
1011,1019 (8th Cir. 2000); Fiellestad v. Pizza Hut ofAmerica, Inc., 188 F.3d 944,950 (8th Cir.
1999). Thus, there is nothing inherently inappropriate about Country Pride expecting that a clerk
be able to clean and do inventory. The question becomes whether those items were "essential
job functions" for the clerk and the amount of time that those functions would require. Given
the questions surrounding whether the job description was written intentionally to exclude Hoy
with arguably bogus requirements for lifting, tire repair, and operating machinery, and given the
obligation of the Court to view the facts in the light most favorable to the non-movant in ruling
on a summary judgment motion, there exists a genuine question of material fact over whether
cleaning and doing inventory were essential job functions of the clerk.
Country Pride points to Hoy's application for SSDI benefits in October of 2007 as
evidence that she could not perform the essential functions of such a job. Indeed, Hoy's
physician deemed her one-hundred percent disabled, the Social Security Administration found
her to be disabled in November of2007, and Hoy herself considered herself to be disabled as of
December 31,2007. Doc. 16 at~' 68-71; Doc. 24 at" 68-71. An ADA plaintiff like Hoy who
claims disability for purposes of a SSDI claim must proffer a sufficient explanation for the
apparent contradiction to have her ADA claim survive summary judgment. Cleveland v. Policy
Mgmt. Sys. Corp., 526 U.S. 795, 806-07 (1997).
Hoy proffers the explanation that her employer urged her to apply for SSDI benefits and
that she always believed herself able to work with accommodations, as she had done for the
previous approximately 33 years. Hoy notes that she had applied to Country Pride for a position
in "secretarylbookkeeping" shortly before she sought SSDI benefits. Under the totality of the
circumstances and viewing the facts in the light most favorable to the Plaintiff, this Court
believes it a jury issue to determine whether Hoy's explanation is credible and sufficient to
overcome the apparent contradiction arising out ofher SSDI claim to be totally disabled with her
ADA claim that she could perform essential job functions with "reasonable accommodation."
See Cleveland, 526 U.S. at 806.
Country Pride also claims that Hoy suffered no adverse employment action with respect
to not receiving the clerk's job because she did not apply for the job. Hoy explains that she was
unaware that there had been posting of such a position.
Hoy had applied for a
bookkeeper/secretary position shortly before the merger and made known her interest in
continuing to work at the Platte location of Country Pride.
The Eighth Circuit has stated that "an employee who does not formally apply must make
'every reasonable attempt to convey his [or her] interest in the job to the employer' before he or
she may prevail on a discrimination claim." Lockridge v. Bd. ofTr., 315 F.3d 1005, 1011 (8th
Cir. 2003) (internal cites omitted) (quoting EEOC v. Metal Service Co., 892 F.2d 341,348 (3rd
Cir. 1990)). Hoy applied to Country Pride for ajob as bookkeeper/secretary in the Fall of2007,
but not for the clerk position in 2008 or at any time thereafter when the position has opened.
Hoy's testimony indicates that she has applied for no jobs at all since applying for SSDlbenefits.
Hoy's ADA claim regarding not being hired for the clerk position--especially in the wake ofher
SSDI claim and testimony-appears to be thin and possibly susceptible to judgment as a matter
oflawat triaL However, there remain questions about the arguably bogus job description written
for the clerk position and what the "essential job functions" of the clerk position truly was and
is. Those fact questions drive this Court not to grant summary judgment on that portion ofHoy's
For the reasons explained herein, it is hereby
ORDERED that Defendant's Motion for Summary Judgment (Doc. 14) is granted in part
as to any claim of lack of accommodation and is otherwise denied.
Dated March 30, 2012.
BY THE COURT:
ROBERTO A. LANG
UNITED STATES DISTRICT JUDGE
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