Tate v. Sam's East, Inc.
Filing
30
MEMORANDUM AND OPINION as set forth in following order.Signed by Chief District Judge Thomas A Varlan on 3/29/13. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
STEVEN TATE,
Plaintiff,
v.
SAM’S EAST, INC.,
Defendant.
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No.: 3:11-CV-87
(VARLAN/GUYTON)
MEMORANDUM OPINION
This civil action is before the Court on Defendant Sam’s East, Inc.’s Motion for
Summary Judgment [Doc. 15]. Plaintiff filed a response in opposition [Doc. 21], and
defendant replied [Doc. 23]. The Court has carefully considered the matter and for the
reasons stated herein, the Court will grant defendant’s motion.
I.
Background
Plaintiff presents claims against defendant, a membership-based wholesale club
with over 600 locations selling a wide variety of items, arising out of his employment
with defendant in various positions over a period of several years. As described herein,
plaintiff claims discrimination based on race and disability. Plaintiff also claims that he
was retaliated against and forced to work in a hostile work environment and that he was
forced to work while off the clock. Plaintiff’s race discrimination claims arise under
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and his
disability discrimination claims arise under the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq. Defendant has moved for summary judgment on all
of plaintiff’s claims.
Plaintiff Steven Tate (“plaintiff”) was hired by defendant Sam’s East, Inc.
(“defendant”) on October 23, 1993, to work as a Bakery Associate in Sam’s Club #8256
in Knoxville, Tennessee.1 When plaintiff was hired, he attended Sam’s Club orientation,
where defendant’s safety and other policies were explained to him. Plaintiff signed
various documents acknowledging that he had received and read the Sam’s Employee
Handbook. Plaintiff also takes computer based learning (“CBL”) courses at Sam’s.
There are CBLs on topics such as the Americans with Disabilities Act (“ADA”),
Associate Safety, Diversity and Inclusion, Inappropriate Behavior, and Corporate Ethics.
Plaintiff worked as a Bakery Associate until approximately October 1998.
Plaintiff was then transferred to Sam’s Club #6572, also in Knoxville, when it opened,
and he has worked in various positions there. In 2003, plaintiff sustained an injury to his
left arm in a non-work related incident at home and was required to take an
approximately three-month medical leave of absence for shoulder surgery.
When
plaintiff returned from medical leave in spring 2004, plaintiff presented defendant with a
doctor’s note from his personal physician, Dr. Brian Holloway, placing him on a lifting
restriction of no more than twenty to twenty-five pounds with no repetitive lifting. After
returning with restrictions and having a Request for Reasonable Accommodation
1
Both plaintiff and his wife, Mary Tate, are current employees of defendant. Plaintiff
currently works as a Maintenance Associate, making approximately $16.25 per hour.
2
approved, plaintiff moved to the position of People Greeter. He remained in that position
for approximately four years.
In 2007, plaintiff wanted to move from the People Greeter position to a position as
a Tire Mounting Area (“TMA”) Cashier.
The TMA Cashier position required
“frequently lifting and sorting merchandise and supplies up to 30 pounds without
assistance and over 30 pounds with team lifting” [Doc. 17-16]. On March 29, 2007,
plaintiff completed a second Request for Reasonable Accommodation form, requesting
an accommodation for the TMA Cashier position lifting requirement.
Plaintiff and
defendant’s Accommodation Service Center then went through the process of plaintiff
filing two appeals and defendant concluding that plaintiff’s request was unreasonable
because it essentially eliminated the TMA Cashier position’s requirement of lifting thirty
pounds. Several months later, plaintiff provided a new doctor’s note to defendant, with a
new lifting restriction of no more than thirty pounds.
On October 13, 2007, after
receiving the new note, defendant transferred plaintiff to the TMA Cashier position.
In February 2009, the Market team, comprised of Sam’s Club Managers, the
Market Human Resources Manager, and the Market Manager for the geographical
territory, met to evaluate staffing levels and sales performance.2
The Market team
decided to eliminate the TMA Cashier position throughout the Market, as the team
concluded that the Tire Technicians could absorb the job responsibilities of the TMA
2
The Market referenced here is comprised of the Sam’s Clubs in the State of Tennessee
and several cities bordering Tennessee [Doc. 17-19].
3
Cashier. Only a few Sam’s Clubs in the Market had a TMA Cashier position at the time,
and plaintiff was the only TMA Cashier at Club #6572 when the position was eliminated.
Two meat cutter positions and two maintenance positions were also eliminated at Club
#6572 around the same time. The other four eliminated positions were held by Caucasian
associates at the time. The two meat cutters, Jordan Bureman and Edward Philips, were
offered and accepted positions that were open when their positions were eliminated, in
the Produce and Deli Departments, respectively. Both of them had their hourly pay
reduced because of the difference in Position Pay Grade (“PPG”) from their eliminated
position to their new position, with Mr. Bureman and Mr. Philips having reductions in
their hourly wages of $1.00 and $.40, respectively.3 The two Maintenance associates,
Leonard Meyer and Knute G. Johnson, were terminated after their positions were
eliminated.
Club Manager Byron Johnson met with plaintiff on February 25, 2009, following
the elimination of the TMA Cashier position, and offered him the two open positions at
the Club location at the time, Produce Associate and a Cashier position. Mr. Johnson
also told plaintiff that he could seek employment elsewhere. Plaintiff accepted the
Produce Associate position immediately. Plaintiff’s Job Offer for the Produce Associate
position notes that the PPG for plaintiff’s TMA Cashier position was a level 4, with a pay
rate at the time of $15.25 per hour, and the PPG for plaintiff’s new Produce Associate
3
Defendant assigns each position in a Club a PPG, based upon the job responsibilities of
the position. Each step up in PPG provides an associate with a $.20 per hour pay increase [Doc.
17-1].
4
position was a level 3, with a new pay rate of $15.05 per hour. Plaintiff signed the
Produce Associate job description, thereby acknowledging that he had the ability to
perform the essential functions of the position, including a fifty pound lifting
requirement, with or without accommodation. Plaintiff’s Job Offer form indicates that he
accepted the offer on February 25, 2009, and the position start date was to be February
28, 2009 [Doc. 17-5, p. 3]. At his deposition, plaintiff testified that he “had no choice”
but to select Produce Associate and that he “would have been fired if [he] did not accept
work in the area outside of [his] restrictions” [Doc. 21-1, p. 3]. Plaintiff claims that after
informing Mr. Johnson that he had a thirty pound weight restriction with no repetitive
lifting, Mr. Johnson informed him to “[d]o it anyway” [Id.].
On February 28, 2009, plaintiff brought two doctor’s notes to Manager James
Harrison. One of the notes released plaintiff to return to work and the other note stated
that plaintiff had the restrictions of no lifting over thirty pounds and no repetitive lifting.
On that same day, when Mr. Harrison and Assistant Manager Beth Denise read the
doctor’s note containing the work restrictions, plaintiff was informed that he could not
work in the Produce Associate position and he was sent home. Plaintiff never worked in
the Produce department after February 28, 2009.
On March 3, 2009, plaintiff filled out a Worker’s Compensation Request for
Medical Care form, indicating that he suffered a shoulder strain lifting produce
merchandize on February 23, 2009. The portion of the form filled out by his physician
indicates that plaintiff was diagnosed with a left rotator cuff strain and was given
5
restrictions of a maximum lifting limit of five pounds, no overheard reaching, and no
above the shoulder work. In a doctor’s note following an appointment on March 2, 2009,
plaintiff was allowed to return to work on March 16, 2009, with the permanent restriction
of lifting twenty-five to thirty pounds with no repetitive lifting.
Defendant then conducted an accident review related to plaintiff’s injury, and
plaintiff received a written Coaching for Improvement notice for using the unsafe work
practice of lifting over thirty pounds or using improper lifting techniques. Plaintiff’s pay
was not reduced at that time. Plaintiff was then worked in two Temporary Alternative
Duty (“T.A.D.”) assignments, first as a D.V.D. Monitoring Associate for several weeks
beginning on March 6, 2009.4 Next, on March 22, 2009, plaintiff accepted a job as a
Meat Demo Associate and signed the Meat Demo Associate Job Description, with the job
to begin on March 28, 2009. As Meat Demo Associate, plaintiff gave out samples of ribs
and chicken, and his job was primarily to sell ribs and chicken.
When asked at his deposition if he remembered getting praise from managers with
regard to how well he was selling ribs and chicken, plaintiff testified “[t]hey just told me
to keep selling ribs. That’s what they told me, and the chicken” [Doc. 17-2, p. 22].
Plaintiff was given a red apron to wear that stated “Rotisserie Rib King” on the front by
Lead Supervisor Vincent Hall, who is African American. Mr. Hall received the apron
from defendant’s management; management had received it from a vendor in
4
When associates have worker’s compensation claims and have been given work
restrictions, defendant assigns them to Temporary Alternative Duty positions. T.A.D. positions
are for a limited period of time.
6
appreciation for Club #6572 being the number one rib-selling Club in the country.
Plaintiff believes that wearing the apron was discriminatory on the basis of his race
because “[i]t was associated with African American culture” [Doc. 17-2, p. 77]. Other of
defendant’s employees, including Caucasian associates, have been responsible for selling
ribs and chicken.
Plaintiff alleges that defendant’s employee Brian Heid told him to “just sell them
ribs,” and that Mr. Johnson told him he “need[ed] to work with the ribs and chicken,” and
that Mr. Johnson “want[ed] to see [plaintiff] sweat” [Doc. 22-3, pp. 3-4]. Plaintiff
testified that Mr. Hall witnessed Mr. Johnson make the second comment and that Pat
Bratton, defendant’s former Operational Manager, witnessed the third comment. Plaintiff
testified that sweating is associated with African-American culture. Plaintiff testified that
he was stereotyped on the basis of his race when he was working in the Meat Demo
Associate position and was called “the chicken man” by “[s]omeone from the home
office named Michael” [Doc. 22-3, p. 6].
On December 6, 2009, plaintiff accepted a Maintenance Associate position, which
requires plaintiff to lift less than or equal to twenty-five pounds. When plaintiff left the
position of Meat Demo Associate and moved to Maintenance he received a reduction in
pay as his PPG changed from PPG 3 to PPG 2.
Plaintiff obtained regular raises
throughout his employment with defendant and has received positive reviews. According
to Mr. Johnson and Donald Vanek, defendant’s Market Human Resources Manager, he
has generally performed well.
7
Plaintiff never used defendant’s Open Door policy, called Market Managers, or
called defendant’s anonymous 1-800 Ethics Hotline to complain about discrimination on
the basis of his race or disability or about harassment or a hostile work environment.
Posters in the break room at Club #6572 provide the names and telephone numbers for
the Club Manager and Market Managers, as well as the Sam’s 1-800 Ethics Hotline
telephone number, and complaint procedures for Harassment/Inappropriate Conduct.
Plaintiff claims that the first discrimination he suffered on the basis of his race was
“when [he] was forced to work in the produce area” [Doc. 17-2, p. 23]. The first time
plaintiff believes he was discriminated against on the basis of his disability was when he
was “forced to work in areas outside of [his] restrictions” [Id.]. “Plaintiff believes he was
discriminated against based on his race when he was forced to take the produce associate
position because he was ‘black and [had] a disability’” [Doc. 21-1, p. 4 (citation
omitted)]. Plaintiff claims that his assignment to the Meat Demo Associate position was
discriminatory on the basis of his race, but not disability [Doc. 22-3, p. 6].
Plaintiff alleges that his Caucasian co-workers were allowed more job assignments
than he was and were allowed to work in areas that he was not able to but could have
despite his disability. At his deposition, plaintiff testified in general terms that Teresa
Loveday was able to work in the clothing area in February or March of 2009, and that
Teresa Lanessa was accommodated to work from night shift to day shift after she
suffered an injury. Plaintiff testified that while defendant accommodated his lifting
restrictions after his injury, moving him to D.V.D. Monitoring, Meat Demo Associate,
8
and then Maintenance, he was treated worse than Ms. Loveday and Ms. Lanessa, who are
both Caucasian, because he was required to take a leave of absence following his on-thejob injury, while they were allowed to come back to work without leave. Plaintiff
additionally testified that Wayne Rippy, also Caucasian, was able to work as a People
Greeter following surgery, and that Mr. Rippy was thus treated more favorably than
plaintiff. Plaintiff admitted that he did not know if there was an open People Greeter
position when Mr. Rippy was placed in it and he does not remember the time period
during which that occurred.
On May 4, 2009, plaintiff filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”), alleging defendant discriminated against him on the
basis of his race and disability, retaliated against him, and forced him to work in a hostile
work environment. Plaintiff received a “right to sue” letter on November 23, 2010.
II.
Standard of Review
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is
proper “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). The
moving party bears the burden of establishing that no genuine issues of material fact
exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris
Cos., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn therefrom
must be viewed in the light most favorable to the non-moving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 301 F.3d
9
937, 942 (6th Cir. 2002). “Once the moving party presents evidence sufficient to support
a motion under Rule 56, the non-moving party is not entitled to a trial merely on the basis
of allegations.” Curtis Through Curtis v. Universal Match Corp., Inc., 778 F. Supp.
1421, 1423 (E.D. Tenn. 1991) (citing Catrett, 477 U.S. at 317). To establish a genuine
issue as to the existence of a particular element, the non-moving party must point to
evidence in the record upon which a reasonable finder of fact could find in its favor.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The genuine issue must also
be material; that is, it must involve facts that might affect the outcome of the suit under
the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper
question for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the
evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the
record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Thus, “the inquiry performed
is the threshold inquiry of determining whether there is a need for a trial—whether, in
other words, there are any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party.”
Anderson, 477 U.S. at 250.
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III.
Race Discrimination Under Title VII
In Title VII actions, “a plaintiff may establish discrimination either by introducing
direct evidence of discrimination or by proving inferential and circumstantial evidence
which would support an inference of discrimination.” DiCarlo v. Potter, 358 F.3d 408
(6th Cir. 2004) (citing Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997)).
Defendant asserts that because there is no direct evidence of discriminatory intent in this
case, plaintiff’s claim should be analyzed under the McDonnell Douglas framework;
plaintiff does not dispute this. [Doc. 12 (citing Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 252-56 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1972)]; [see Doc. 21-1]. When using circumstantial evidence to create an inference of
discrimination, the burden-shifting framework first announced by the United States
Supreme Court in McDonnell Douglas applies. Under this framework, a plaintiff carries
the initial burden of establishing, by a preponderance of the evidence, a prima facie case
of discrimination by his or her employer. In order to demonstrate a prima facie case, the
plaintiff must show: (1) membership in a protected class; (2) that the plaintiff suffered an
adverse employment action; (3) that the plaintiff was qualified for the position; and (4)
that the plaintiff was replaced by someone outside the protected class or was treated
differently than similarly situated, non-protected employees. Wright v. Murray Guard,
Inc., 455 F.3d 702, 707 (6th Cir. 2006). In reduction in workforce cases where “the most
common legitimate reason for the termination is” the reduction itself, “the fourth factor of
the prima facie burden requires ‘additional direct, circumstantial, or statistical evidence
11
tending to indicate that the employer singled out the plaintiff for discharge for
impermissible reasons.’” Nelson v. General Elec. Co., 2 F. App’x 425, 430 (6th Cir.
2001) (citations omitted). A plaintiff who successfully establishes a prima facie case
receives the benefit of a presumption that the employer unlawfully discriminated against
the plaintiff. Texas Dept. of Cmty. Affairs, 450 U.S. at 254.
The burden then “shifts to the defendant ‘to articulate some legitimate,
nondiscriminatory reason for the employee’s rejection.’” Id. at 253 (quoting McDonnell
Douglas, 411 U.S. at 802). “[S]hould the defendant carry this burden, the plaintiff must
then have an opportunity to prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but were a pretext for
discrimination.” Id. Although the burdens of production shift throughout the McDonnell
Douglas framework when circumstantial evidence is involved, “[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Id.; see also Talley v. Bravo Pitino Rest.,
Ltd., 61 F.3d 1241, 1246 (6th Cir. 1995).
Plaintiff has alleged that defendant discriminated against him based on race with
respect to his having been moved to different positions throughout his employment with
defendant, some with reduction in pay. For the purposes of establishing plaintiff’s prima
facie case, it is undisputed that plaintiff, an African-American male, is a member of a
protected class. See Wright, 455 F.3d at 706 (recognizing that an African-American male
was a member of a protected class for Title VII purposes). Defendant asserts that
12
plaintiff cannot establish a prima facie case of Title VII race discrimination because
plaintiff cannot establish the fourth element, that is that he was replaced by a person
outside of the protected class or was treated less favorably than a similarly situated
individual outside of the protected class.
Defendant argues that plaintiff cannot show that he was replaced by someone
outside of the protected class when plaintiff was removed from the TMA Cashier position
because defendant eliminated the TMA Cashier positions throughout the Market as a
whole, and the Tire Technicians took over the position’s duties. Plaintiff was the only
TMA Cashier at Club #6572 at the time, and defendant did not hire additional TMA
Cashiers at any stores in the Market. Accordingly, as plaintiff’s position no longer
existed, plaintiff was not replaced at all, let alone by someone outside of the protected
class.
Defendant also argues that plaintiff has not and cannot prove that any similarly
situated persons outside of the protected class were treated move favorably than him.
Defendant asserts that within the same time period of the elimination of plaintiff’s TMA
Cashier position, four other positions in two additional departments, all held by
Caucasian associates, were eliminated. Two of the associates were offered and accepted
alternative positions at lower PPGs in the Produce and Deli departments, and each of
those associates received a greater pay reduction than plaintiff did when he moved to the
Produce Associate position. The other two Caucasian associates whose positions were
13
eliminated, who both worked in the Maintenance department, had their employment
terminated when their positions no longer existed.5
The points at which plaintiff claims to have suffered Title VII race discrimination
are a bit unclear from his complaint [Doc. 1] and responsive brief [Doc. 21-1]; however,
as plaintiff’s brief points out, at his deposition he testified that the first time he suffered
discrimination on the basis of race was when he was “forced to work in the produce
area[,]” after the TMA Cashier position was eliminated. [Doc. 21-1, pp. 2-3]. Plaintiff
claims that Caucasian employees were given job assignments within the store that
plaintiff was not given. Specifically, plaintiff points to Teresa Loveday, who he claims
worked in the Clothing department, Wayne Rippy, who worked as a Door Greeter after
shoulder surgery, and Teresa Lanessa, who worked in the Clothes Folding section during
the day shit after an injury.
Plaintiff testified at his deposition that each of these
employees are Caucasian and that they were allowed to come back to work immediately
after injuries and work in these accommodated positions, while plaintiff was required to
take time off of work and use his personal time, sick pay, and vacation pay to take time
off.
5
Defendant additionally claims that to the extent that plaintiff claims his temporary
assignment to the Meat Demo Associate position was race discrimination, that claim is without
merit because Caucasian Meat Demo Associates have also sold chicken and ribs. To the extent
that plaintiff makes a claim that his assignment to the Meat Demo Associate position constituted
race discrimination, the Court finds that his assignment to that position was not an adverse
employment action for Title VII purposes and would dismiss such a claim.
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Plaintiff also testified that he was singled out by Pat Bratton, when she yelled at
him that he was “worthless and a bad representative of Sam’s Club” and that she did not
yell at Caucasian workers who were also there.
Plaintiff testified that co-workers
Dorothy Cain, Pat Prince, and Sandra McCroskey witnessed Ms. Bratton singling him
out. He also claims that Ms. Bratton required him to work on his lunch break and that
David Franklin, a manager at the time, witnessed this. Plaintiff additionally believes that
he was discriminated against on the basis of his race when his pay went from a PPG 3 to
a PPG 2, from $15.45 per hour to $15.25 per hour, when he was moved into the
Maintenance Associate position on December 6, 2009.
Defendant replies that summary judgment is appropriate here because plaintiff has
made vague allegations of non-protected class employees being allowed to do things that
plaintiff was not and being treated better and less harshly than plaintiff. Defendant
argues that without providing any substantive evidence, facts, or analysis as to how the
alleged non-protected employees were similarly situated to plaintiff in all relevant
aspects, such assertions by plaintiff are conclusory allegations that are insufficient to
satisfy the fourth prong of the prima facie McDonnell-Douglas case.
As plaintiff was not replaced, the Court will focus on the similarly-situated
inquiry.
A plaintiff need not demonstrate an exact correlation with the employee
receiving more favorable treatment in order for the two to be considered “similarly
situated.” Rather, a plaintiff need only show that they are similar in all relevant aspects.
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 352 (6th Cir. 1998); Clayton
15
v. Meijer, Inc., 281 F.3d 605, 611 (6th Cir. 2002). To be deemed “similarly situated,” the
Sixth Circuit has stated that the non-protected individuals with whom the plaintiff seeks
to compare his treatment must have: (1) “dealt with the same supervisor;” (2) “been
subject to the same standards;” and (3) “engaged in the same conduct without such
differentiating or mitigating circumstances that would distinguish their conduct or the
employer’s treatment of them for it.” Mitchell v. Toledo Hosp., 964 F. 2d 577, 583 (6th
Cir. 1992). The Sixth Circuit has held that under Title VII, “[d]ifferences in job titles,
responsibilities, experience, and work record can be used to determine whether two
employees are similarly situated[.]” Leadbetter v. Gilley, 385 F.3d 683, 691-92 (6th Cir.
2004) (finding a plaintiff not similarly situated to a non-protected employee with
“superior experience”).
As stated above, as to the elimination of plaintiff’s TMA Cashier position, he was
not replaced by anyone, and his was not the only position eliminated around that time.
Moreover, two of the other employees whose positions were eliminated at the same time
had their employment with defendant separated after their positions were eliminated.
Two additional employees whose positions were eliminated around the same time, who
accepted other positions at Club #6572, received greater pay reductions based on lower
PPGs than plaintiff did. Plaintiff signed and accepted the Job Offer indicating his lower
PPG, and there is no evidence that he objected to that lower PPG at any time. In fact, he
admitted at his deposition that the PPG levels are applied equally to each of defendant’s
employees and correspond with the positions in which employees work.
16
As to plaintiff’s allegation that he has been treated differently than Caucasian
employees Teresa Loveday, Teresa Lanessa, and Wayne Rippy, plaintiff has presented no
evidence to establish that those employees were similarly situated to him in any way. He
testified that the three each were allowed to work in different positions than he was after
suffering injuries, but he admitted that he was unsure whether the others were allowed to
obtain the other positions because those positions were open at the point at which they
were injured, and he did not dispute that the positions he was offered were the only open
ones at the point he returned from injury leave. While plaintiff argues that he was
required to use sick leave and vacation time when he was injured while others were not,
plaintiff has not produced any evidence to show that those employees had more or less
serious injuries than him or that they were in any other way similarly situated. Plaintiff
has likewise produced no evidence and made no allegations regarding the type
employment history the others had with defendant, their experience levels, or the
supervisors with which they dealt. See Mitchell, 964 F.2d at 582-83.
As to plaintiff’s argument that Ms. Bratton treated him more harshly than others
and called him lazy, as well as required him to work on his lunch break, plaintiff has not
identified any employees that he believes were treated differently than him or that were in
any way comparable but not treated harshly.
Plaintiff must identify some other
individuals with whom he seeks to compare his treatment by the same supervisor, and he
has failed to do so. See, e.g., Arendale v. City of Memphis, 519 F.3d 587, 605 (6th Cir.
2008) (“Conclusory assertions, supported only by plaintiff’s own opinions, cannot
17
withstand a motion for summary judgment.”); Johnson v. Sinai Hosp. of Greater Detroit,
No. 4:10-CV-12321-DT, 2012 WL 219506, at *8 (E.D. Mich. Jan. 6, 2012) (noting that
the plaintiff had pointed to no specific evidence of similar performance problems in
regard to the employees she claimed were similarly situated to her and that the plaintiff’s
own subjective beliefs were insufficient to support a finding of discrimination).
Moreover, as discussed below, defendant alleges that any interaction plaintiff would have
had with Ms. Bratton would be from the time during which plaintiff worked as a People
Greeter between 2004 and 2007 and would thus be time-barred at this point.
Accordingly, because plaintiff has not identified any similarly-situated individuals,
he has not established the fourth prong and cannot make out a prima facie case for race
discrimination under Title VII, and the Court will GRANT summary judgment as to this
claim. Because the Court finds that the plaintiff has not met the fourth prong of his prima
facie case, it need not address the other prongs or whether defendant presented a
legitimate reason for any alleged adverse employment action suffered by plaintiff.
IV.
Disability Discrimination Under the ADA
The ADA provides that an employer “‘shall [not] discriminate 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.” Whitfield v. Tennessee, 639 F.3d 253,
258 (6th Cir. 2011) (quoting 42 U.S.C. § 12112(a)). To make out a prima facie case of
employment discrimination utilizing indirect evidence under the ADA a plaintiff must
18
generally show: 1) he is disabled; 2) he was otherwise qualified for the position, with or
without reasonable accommodation; 3) he suffered an adverse employment decision; and
4) the circumstances give rise to an inference of unlawful discrimination, or a nexus
exists between the adverse action suffered and the plaintiff’s disability. See Macy v.
Hopkins Cnty. Sch. Bd. of Educ., 484 F.3d 357, 365 (6th Cir. 2007) (citing McDonnell
Douglas, 411 U.S. at 802; Monette v. Elec. Data Sys. Corp., 90 F.3d 1173, 1177-86 (6th
Cir. 1996)), abrogated on other grounds by, Lewis v. Humboldt Acquisition Corp., 681
F.3d 312, 321 (6th Cir. 2012) (en banc). A plaintiff must establish that he would not
have suffered the adverse employment action but for his disability. Frengler v. Gen.
Motors, 482 F. App’x 975, 976 (6th Cir. 2012) (citations omitted). As stated above,
under the burden-shifting framework of McDonnell Douglas, after a plaintiff makes out a
prima facie case, the burden is shifted to the defendant to articulate a non-discriminatory
reason for the employment action. 411 U.S. at 802-04. If the defendant does so, the
burden returns to the plaintiff to prove that the stated reason is pretextual. Id.
The ADA Amendments Act of 2008 took effect on January 1, 2009. Pub. L. No.
110-325, § 8. Because the adverse employment actions alleged by plaintiff took place
after that date, the amendments apply to this case. See Milholland v. Sumner Co. Bd. of
Educ., 569 F.3d 562 (2009).
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A.
Disability
Under the ADA, a person is disabled if he has “a physical or mental impairment
that substantially limits one or more of the major life activities of such individual.” 42
U.S.C. § 12102 (2006) (amended 2009).
Under the ADA, a person is disabled if he:
(A)
[has] a physical or mental impairment that substantially limits one or
more of [his] major life activities . . . ;
(B)
[has] a record of such impairment; or
(C)
[is] regarded as having such an impairment . . . .
42 U.S.C. § 12102(1). “Major life activities” include, but are not limited to, “caring for
oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating, thinking,
communicating, and working.” 42 U.S.C. § 12102(2)(A) (emphasis added).
An individual meets the requirement of “being regarded as having such an
impairment” if the individual establishes that he or she has been subjected
to an action prohibited under this chapter because of an actual or perceived
physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.
42 U.S.C. § 12102(3)(A). Under the amended ADA, the term “disability” is meant to be
construed in favor of broad coverage. 42 U.S.C. § 12102(4)(A). As lifting is a major life
activity under the amended ADA, the Court must look to the definition of “substantial
limitation.” See Jenkins v. Nat’l Bd. of Med. Exam’rs, No. 08-5371, 2009 WL 331638,
*2-3 (6th Cir. Feb. 11, 2009) (dealing with reading as a major life activity under the
20
amended ADA).6
The EEOC has determined that under the amended ADA,
“substantially limits” is “not meant to be a demanding standard.”
29 C.F.R. §
1630.2(j)(1)(i) and (iii). “An impairment need not prevent, or significantly restrict, the
individual from performing a major life activity in order to be considered substantially
limiting.” 29 C.F.R. § 1630.2(j)(ii).
Defendant argues that plaintiff cannot establish the first element of a prima facie
case of ADA discrimination because he is not disabled.
In making this argument,
defendant cites to several cases wherein it was found that an employee with only a
general lifting restriction imposed by a physician, without more, was insufficient for a
finding of a disability within the definitions of the ADA. See, e.g., Scott v. G & J PepsiCola Bottlers, Inc., 391 F. App’x 475 (6th Cir. 2010); Snow v. Ridgeview Med. Ctr., 128
F.3d 1201, 1207 (8th Cir. 1997), abrogated on other grounds by Torgerson v. City of
Rochester, 643 F.3d 1031 (8th Cir. 2011); Williams v. Avnet, Inc., 910 F. Supp. 1124,
1132 (E.D.N.C. 1995). A review of the cases cited by defendant, and of others finding
that a weight lifting restriction is insufficient for a finding of disability, shows that the
6
In the ADA Amendments Act, Congress indicated its intention for the ADA to give
broad protection to individuals with disabilities, and in repudiating the Supreme Court’s decision
in Toyota Motor Manufacturing, Kentucky, Inc., v. Williams, 534 U.S. 184 (2002), rejected its
holding “that the terms ‘substantially’ and ‘major’ in the definition of disability under the ADA
‘need to be interpreted strictly to create a demanding standard for qualifying as disabled,’ and
that to be substantially limited in performing a major life activity under the ADA ‘an individual
must have an impairment that prevents or severely restricts the individual from doing activities
that are of central importance to most people’s daily lives[.]’” Pub. L. No. 110-325, § 2(b)(4).
In enacting the ADA Amendments Act, “Congress overturned the definition of ‘substantially
limits’ put forward in Toyota and directed the courts to interpret the term in a more inclusive
manner.” Jenkins, 2009 WL 331638, at *3.
21
cases having so found applied the Toyota rules, prior to the ADA Amendments Act. See,
e.g., Scott, 391 F. App’x at 479 n.3 (“Mr. Scott’s termination occurred before the 2008
amendments became effective[,]” and “we consider his disability discrimination claim
under the law as it existed before the amendments.” (citation omitted)); see also Rico v.
Xcel Energy, Inc., --- F. Supp. 2d. ---, 2012 WL 4466631, *4-5 (D.N.M. Sept. 25, 2012)
(finding that the express language of the ADA Amendments Act “calls into question the
continued precedential value of pre-amendment cases” and declining to look to pre-ADA
Amendments Act Tenth Circuit cases finding that lifting restrictions did not substantially
limit major life activities as “valid guidance” in a post-ADA Amendments Act lifting
restriction case).
Prior to the broadened definition of disability under the ADA Amendments Act,
“[f]ederal case law support[ed] that a maximum weight restriction [wa]s not a disability
as defined by the ADA.” Law v. City of Scottsville, 221 F.3d 1335, *4 (6th Cir. June 15,
2000) (table) (reviewing cases from this and other circuits finding that weight restrictions
on lifting did not constitute a disability for ADA purposes). However, “[f]ew courts have
had the occasion to consider the effects of the ADAAA[,] and [t]hose that have, apply it
broadly to encompass disabilities that previously might have been excluded.” Harty v.
City of Sanford, No. 11-cv-1041, 2012 WL 3243282, *5 (M.D. Fla. Aug. 8, 2012).
Accordingly, prior to the adoption of the ADA Amendments Act, plaintiff’s lifting
restriction, combined with his restriction against repetitive lifting, would likely not have
sufficed to established plaintiff as disabled for disability discrimination purposes. Given
22
the expansion of the definition of disability, however, several district courts have recently
found weight lifting restrictions to be adequate to constitute a disability under the ADA,
or at least sufficient to avoid summary judgment on the issue. See, e.g., Lohf v. Great
Plains Mfg., Inc., No. 10-1177-RDR, 2012 WL 2568170, *4-6 (D. Kan. July 2, 2012)
(recognizing that it was a close question but finding under the less restrictive standards of
the amended ADA that plaintiff had offered sufficient evidence to raise a genuine issue of
fact as to disability where he had a twenty-five to thirty pound lifting restriction and a
need to alternate sitting and standing); Mills v. Temple Univ., 869 F. Supp. 2d 609, 62122 (E.D. Pa. 2012) (finding a three pound lifting restriction sufficient to establish a
genuine issue of fact as to disability and to survive summary judgment); Williams v.
United Parcel Servs., Inc., 2:10-1546-RMG, 2012 WL 601867, *3 (D.S.C. Feb. 23, 2012)
(adopting a report and recommendation finding a disputed issue of fact as to whether
plaintiff with twenty pound lifting restriction was disabled for ADA discrimination
purposes); Farina v. Branford Bd. of Educ., No. 09-CV-49, 2010 WL 3829160, *11
(D.Conn. Sept. 23, 2010) (noting that in light of the lowered disability threshold of the
ADA Amendments Act, and the inclusion of lifting as a major life activity, “it is possible
that even a relatively minor lifting restriction could qualify as a disability within the
statute”), aff’d, 456 F. App’x 13 (2d Cir. 2011).
Accordingly, in light of the broadened standard for determining disability under
the ADA Amendments Act, along with the recent district court decisions analyzing lifting
restrictions in light of the Act, the Court finds plaintiff’s weight restriction, as evidenced
23
through doctor’s notes in the record, sufficient to create a question of fact as to disability.
Therefore, the Court will address additional aspects of plaintiff’s ADA discrimination
claim to determine if it will survive defendant’s motion for summary judgment.
B.
Adverse Employment Action
Defendant argues that plaintiff cannot show that he suffered an adverse
employment action because of his alleged disability.7 As possibly related to disability
discrimination, plaintiff apparently argues that the adverse employment actions he
suffered were: “(1) Being given an ultimatum that he could either work as a cashier
associate, a produce associate (both of which were outside his restrictions) or quit;” “(2)
Being given another ultimatum that he would be fired if he did not work in an area
outside of his restrictions;” “(3) Being given another ultimatum that if he did not work in
the produce position, he would be fired;” and “(5) Having his pay reduced when he went
from the position of meat demo associate to maintenance” [Doc. 21-1].
7
Defendant argues that plaintiff cannot show he was otherwise qualified for the Produce
Associate position, with or without a reasonable accommodation. As defendant points out,
plaintiff signed the Job Offer for the Produce Associate position acknowledging with the
certification: “I have the ability to perform the essential functions of this position either with or
without a reasonable accommodation” [Doc. 17-5, p. 3]. The Produce Sales Associate Job
Description, signed by plaintiff and initialed at the box “I have the ability to perform the
essential functions of this position either with or without a reasonable accommodation,” includes
under Physical Activities that the employee “moves, lifts, carries, and places merchandise and
supplies weighting less than or equal to 50 pounds without assistance” [Doc. 17-10, p. 7].
Plaintiff had a weight lifting restriction much lower than that required for the position at the
time. Accordingly, as defendant argues, plaintiff was not otherwise qualified for the Produce
Associate position, because the lifting requirement was necessary to perform the essential
functions of the position and he could not perform them with or without a reasonable
accommodation.
24
Defendant asserts that the only positions available at the time the TMA Cashier
positions were eliminated in the Market through a reduction of workforce were the lowerpaying positions of the Produce Associate and the Cashier position.8 Plaintiff’s Job Offer
indicated that he was moving from a PPG 3 to a PPG 2 when he accepted the Produce
Associate position and the PPG levels apply the same to all associates, with the level of
responsibility determining the pay grade.
Defendant also argues that even if plaintiff could establish that he was treated
adversely as compared to a non-disabled person, his claim still must fail because he has
not shown that any adverse action was taken “because of” his impairment. “The . . .
ADA bar[s] discrimination ‘because of’ an employee’s . . . disability, meaning that [it]
prohibit[s] discrimination that is a ‘“but-for” cause of the employer’s adverse decision.’”
Lewis, 681 F.3d at 321 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176
(2009)).
Assuming arguendo that plaintiff established a prima facie case, defendant has
articulated a non-discriminatory reason for offering plaintiff the decision to take Produce
Associate position, take the Cashier position, or seek employment elsewhere. Defendant
has shown that the Market Managers made the business decision during a reduction in
workforce to eliminate the TMA Cashier position and that plaintiff was offered the only
open positions at Club # 6572 at the time. Defendant has also shown that the reduction in
8
Upon review of plaintiff’s complaint and responsive brief, it does not appear to the
Court that plaintiff argues that the elimination of the TMA Cashier position itself was an adverse
employment action or constituted race or disability discrimination.
25
pay plaintiff incurred was because the Produce Associate position, which he accepted,
was assigned a different PPG level than the TMA Cashier position. Others whose
positions were eliminated during the reductions in January and February 2009 either had
their employment terminated or were forced to take a similar PPG cut with their new
positions. Accordingly, defendant has asserted a legitimate non-discriminatory reason for
plaintiff being offered the Produce Associate position and for his reduction in hourly
wage when he accepted that position. Nothing in the record indicates that defendant’s
Market Managers’ decision to eliminate the TMA Cashier position had anything to do
with plaintiff’s alleged disability. Likewise, no evidence indicates that but for plaintiff’s
weight lifting restriction, he would not have been offered the Produce Associate or
Cashier positions. Defendant could have separated plaintiff’s employment, as it did for
two others at the time his position was eliminated, but it instead allowed him to continue
at the Club and offered him the only positions available at the time.
To the extent that plaintiff claims the reduction in pay when he moved to his
Maintenance Associate position in December 2009 was an adverse employment action
suffered because of his disability, the Court again finds that plaintiff signed the Job Offer
indicating his pay level would go from PPG 3 to PPG 2 when he moved to that position
and that plaintiff has not shown that this pay level change was for any reason other than
the new position, obtained when he no longer worked in a T.A.D. position, being
assigned a lower PPG.
26
Accordingly, because plaintiff has not shown that any adverse employment action
he may have suffered was because of his alleged disability and has also not shown that
defendant’s non-discriminatory reason for any such adverse action was merely pretext for
its true discriminatory intent, the Court finds that no genuine issue of fact exists to
preclude summary judgment on plaintiff’s ADA discrimination claim.
C.
Failure to Accommodate
In his complaint, plaintiff asserts: “Plaintiff requested on several different
occasions to be moved to a position that would accommodate his disability but was
denied, although other job opportunities were given to his Caucasian counterparts, as well
as, individuals who were not suffering from a disability” [Doc. 1 ¶ 21].9 In his response,
plaintiff claims that defendant failed to act in good faith by “forcing Plaintiff to work
outside of his restrictions and not even caring about how he became under restrictions nor
how the injury occurred” [Doc. 21-1, p. 28]. Plaintiff argues that “Sam’s Club never
accommodated the Plaintiff” and “it is crystal clear that the Defendant perceived him as
9
It is unclear the points at which plaintiff alleges that he requested to be moved to
different positions, as the record indicates only that he requested to be moved in 2007, when he
submitted a Request for Reasonable Accommodation form and went through the process of
negotiating such an accommodation. The record does not support a finding that plaintiff made
any requests in 2009, and he does not allege that he did so. Accordingly, to the extent that
plaintiff asserts that he made a request for a reasonable accommodation such that he would
satisfy that element of a claim for failure to accommodate in 2007 or before, a failure to
accommodate based on that time frame would be time-barred. An individual alleging
discrimination under the ADA must file an administrative charge of discrimination with the
EEOC within 300 days of the alleged unlawful discriminatory practice occurring. 42 U.S.C. §
2000e-5(e)(1) (applicable to ADA claims under 42 U.S.C. § 12117(a)); see Kovacevick v. Kent
State Univ., 224 F.3d 806, 831 (6th Cir. 2000). Plaintiff filed his charge with the EEOC on May
4, 2009 [Doc. 1].
27
disabled” [Id., p. 29]. Plaintiff also claims that Mr. Johnson told him “to ‘do it anyway’ .
. . when the Plaintiff informed him that said work was outside his restriction” [Doc. 21-1,
p. 24].
“In order to establish a prima facie case for failure to accommodate, a plaintiff
must show that: (1) she is disabled within the meaning of the Act; (2) she is otherwise
qualified for the position, with or without reasonable accommodation; (3) her employer
knew or had reason to know about her disability; (4) she requested an accommodation;
and (5) the employer failed to provide the necessary accommodation.”
Johnson v.
Cleveland City Sch. Dist., 443 F. App’x 974, 982-83 (6th Cir. 2011) (citation omitted).
“The employee . . . bears the burden of proposing reasonable accommodations; an
employee’s claim must be dismissed if the employee fails to identify and request such
reasonable accommodations.” Id. at 983 (citation omitted).
At his deposition, plaintiff admitted that he did not request for a reasonable
accommodation in 2009. To the contrary, he signed the Job Offer for the Produce
Associate position and indicated that he was able to perform all job functions, which
included lifting up to fifty pounds.
When plaintiff requested a reasonable
accommodation in 2007, defendant’s ADA department went through the process of
negotiating that accommodation with plaintiff, exchanging many letters, and he was
aware of how the process worked. While plaintiff’s complaint alleges that he “requested
on several different occasions to be moved to a position that would accommodate his
disability,” nothing in the record, including the deposition of plaintiff, supports such an
28
allegation. The evidence shows that on February 28, 2009, the day plaintiff came to work
and showed doctors’ notes to his managers, indicating that he had weight restriction of no
repetitive lifting and no lifting over thirty pounds, plaintiff was told he could not work in
the Produce department and no longer did so. After plaintiff returned to work, he was
placed in T.A.D. positions, the essential duties of which he could perform with his lifting
restrictions recommended by his doctors.
Viewing the facts in the light most favorable to plaintiff, when considering the
process defendant went through with plaintiff when he requested a reasonable
accommodation in 2007, and the fact that as soon as his managers saw that he had a
restriction beyond what was required to work in the Produce Associate position they
removed him from the position, it appears that had plaintiff requested a reasonable
accommodation in 2009, defendant may have been receptive to the informal process
required.
Accordingly, plaintiff cannot establish a prima facie case for failure to
accommodate, and the Court will GRANT summary judgment on that claim.
V.
Hostile Work Environment
A.
Racially Hostile Work Environment Under Title VII
The McDonnell Douglas burden-shifting analysis also applies to claims of hostile
work environments. Clay v. United Parcel Serv., Inc., 501 F.3d 695, 706 (6th Cir. 2007).
“To succeed on a claim of a racially hostile work environment, a plaintiff must
demonstrate that (1) she belonged to a protected group, (2) she was subject to unwelcome
harassment, (3) the harassment was based on race, (4) the harassment was sufficiently
29
severe or pervasive to alter the conditions of employment and create an abusive working
environment, and (5) the defendant knew or should have known about the harassment and
failed to act.” Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011) (citation
omitted).
“The conduct must be severe enough or pervasive enough to create an
environment that a reasonable person would find hostile or abusive.”
Bowman v.
Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). “[W]hether an environment is
‘hostile’ or ‘abusive’ can only be determined by looking at all the circumstances.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). A court should consider harassment
“by all perpetrators combined,” instead of “divid[ing] and categoriz[ing] the reported
incidents.” Williams v. Gen. Motors Corp., 187 F.3d 553, 562 (6th Cir. 1999) (dealing
with a claim of a sexually hostile work environment); see Jackson v. Quanex Corp., 191
F.3d 647, 658 (6th Cir. 1999) (“[T]he same principles that govern sexual harassment also
govern claims of racial harassment.”). “[O]nly harassment based on the plaintiff’s race
may be considered.” Williams, 643 F.3d at 511 (citing Bowman v. Shawnee State Univ.,
220 F.3d at 464) (emphasis in original).
“A plaintiff may prove that harassment was based on race by either (1) direct
evidence of the use of race-specific and derogatory terms or (2) comparative evidence
about how the alleged harasser treated members of both races in a mixed-race
workplace.” Id. at 511 (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
80-81 (1998) (approving these methods in the analogous context of sexual harassment)).
30
Harassment need not be explicitly based on race to be illegally race-based if the plaintiff
shows that but for his race he would not have been subjected to the harassment. Clay,
501 F.3d at 706.
Plaintiff alleges that he was subject to hostile work environment based on his race
when he was “forced to sell chicken and ribs” [Doc. 21-1, p. 24]. Plaintiff claims that
while working as a Meat Demo Associate he was told by several of defendant’s
employees and supervisors “just sell them ribs,” “you need to work with the ribs and
chicken,” and “let me see you sweat” [Docs. 1, 21-1]. Plaintiff also claims that he was
referred to as “the chicken man” and “rib king” by defendant’s member customers and by
“management” [Doc. 21-1, p. 24]. Plaintiff alleges that he was “forced” by defendant to
wear a red apron that had the words “Rotisserie Rib King” on the front, while other
Caucasian employees wore plain black aprons.
Defendant argues that plaintiff cannot establish the third and fourth elements of his
prima facie case. First, defendant asserts that plaintiff admits that these comments were
made while plaintiff’s “actual job was to sell ribs and chicken as a Meat Demo Associate
for an approximate six-month period” [Doc. 16, p. 16 (emphasis omitted)]. Defendant
points out that the only exception is plaintiff’s allegation that a man named “Michael”
from the “home office” called him the “chicken man” once after he left his position as a
Meat Demo Associate.
As to plaintiff’s allegation that Mr. Johnson told him he
“want[ed] to see [him] sweat,” defendant denies that the comment was made, and further
argues that even if it was made, the comment does not evidence racial animus.
31
Defendant contends when taken in totality, the comments do not create a severe and
pervasive hostile work environment as contemplated by Title VII. Defendant points out
that the only evidence produced by plaintiff of Mr. Johnson telling him to “do the job
anyway,” despite his lifting restrictions, and that he wanted to “see [plaintiff] sweat,” are
plaintiff’s own self-serving statements to that effect. Defendant also argues that plaintiff
has failed to show that any of these comments were made because he is an African
American.
Defendant submits that the “alleged comments are not objectively hostile and
abusive” and suggests that cases with far more egregious circumstances than the one at
issue have been dismissed at the summary judgment stage [Doc. 16, p. 22 (citing
Berryman v. SuperValu Holdings, Inc., 669 F.3d 714 (6th Cir. 2012) (upholding district
court grant of summary judgment on plaintiff’s claim of hostile work environment where
plaintiff experienced vulgar graffiti, overtly racist comments, and racially motivated
pranks over a period of twenty-five years)].
Plaintiff also claims that he was singled out by Ms. Bratton, who is no longer
employed by defendant, when she allegedly yelled at him in front of his Caucasian coworkers and told him he was “worthless and a bad representative of Sam’s Club” [Doc.
21-1, p. 25]. Plaintiff alleges that Ms. Bratton did not make any similar comments to
others. He asserts that the instance was witnessed by Dorothy Cain, Pat Prince, and
Sandra McCroskey. Defendant replies to this claim that in asserting it, plaintiff is
attempting to create a dispute of fact where none exists. Defendant asserts that it is
32
undisputed that plaintiff was a People Greeter from 2004 to 2007. Defendant represents
that Ms. Bratton was defendant’s Operational Manager during the time when plaintiff
was a People Greeter. Accordingly, defendant asserts that any “vague claims regarding
conduct and/or comments by Pat Bratton sometime between 2004 and 2007 are timebarred and must be disregarded” [Doc. 23, p. 6]. Moreover, defendant argues, plaintiff
has provided no evidence to show that any comments made by Ms. Bratton had to do
with plaintiff’s race or alleged disability.10
In looking at the allegations related to plaintiff’s position as the Meat Demo
Associate, the Court first finds that a reasonable jury could not find that the comments
were made based on plaintiff’s race. Plaintiff’s admits that his primary duty while
working as a Meat Demo Associate was selling ribs and chicken. Plaintiff does not
10
Defendant argues that plaintiff unreasonably failed to take advantage of defendant’s
policies and procedures for complaining about the allegedly hostile work environment.
Defendant also asserts that plaintiff never complained to anyone at Sam’s about the alleged
discrimination or harassment. Plaintiff did not call the 1-800 Ethics Hotline, and he never
complained using the open door policy on which he was trained. Defendant asserts that “[a]n
employee’s subjective fears of confrontation, unpleasantness or retaliation do not alleviate the
employee’s duty under Ellerth to alert the employer of the allegedly hostile work environment”
[Doc. 23, p. 6 (quotation marks and citations omitted)]. In plaintiff’s affidavit, attached to his
response in opposition to defendant’s motion for summary judgment, he attempts to clarify that
when he answered in the negative when asked whether he had ever complained about any
discrimination or harassment to anyone at Sam’s Club, he had thought that counsel for defendant
was asking if he had complained to anyone in the corporate office, rather than to the managers at
his Club [Doc. 22-1]. Plaintiff asserts that he “most assuredly complained to my managers
inside my club such as Byron Johnson, Pat Bratten, Brian Heid about me being discriminated
and harassed at work” [Id. at 2 (emphasis in original)]. “[A] party cannot create a genuine issue
of material fact by filing an affidavit, after a motion for summary judgment has been made, that
essentially contradicts his earlier deposition testimony.” Penny v. United Parcel Serv., 128 F.3d
408, 417 (6th Cir. 1997). Moreover, in light of the Court’s finding below that plaintiff has not
established a prima facie case of a hostile work environment, the Court need not address
defendant’s knowledge of plaintiff’s perceived harassment.
33
allege that anyone from Sam’s made comments to plaintiff that could be considered
overtly race-specific or derogatory. To the extent that plaintiff argues that his wearing
the red apron stating “Rotisserie Rib King” on the front, given to him by an AfricanAmerican supervisor, while Caucasian employees wore black aprons, defendant argues
that Caucasian employees have worn the red apron since plaintiff moved out of the
position. While plaintiff’s affidavit indicates that he “ha[s] no knowledge of that[,]” he
has presented no evidence to disprove that fact [Doc. 22-1 (emphasis omitted)].
Additionally, it appears based on the record that the apron was given to the Club at which
plaintiff worked as appreciation for their large number of rib sales, and defendant asserts
that plaintiff was given the apron as a successful rib and chicken seller. As to plaintiff’s
allegation that Mr. Johnson told him he “want[ed] to see [him] sweat,” and that such
comment as based on his race, no context was given to this comment and no evidence
before the Court leads to the conclusion that a reasonable jury could find that any such
comment was made based on plaintiff’s race.
Moreover, even if a reasonable jury could find that the comments alleged by
plaintiff were made based on his race, the Court finds that the totality of the alleged
harassment was not “sufficiently severe or pervasive to alter the conditions of his
employment and create an abusive working environment.” Harris, 510 U.S. at 21.
Considering the relevant factors of “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee’s work performance,”
34
the Court finds that the alleged comments were not physically threatening or humiliating,
were not severe, were not objectively offensive, and did not unreasonably interfere with
plaintiff’s work performance. See Id. at 23.
Last, assuming that any comparative-evidence claims related to Ms. Bratton’s
treatment of plaintiff are not time-barred, plaintiff’s allegation that he was treated adverse
to others based on his race is unpersuasive. He alleges that Ms. Bratton yelled at him and
told him that he was a bad representative of the company, but did not yell at others.
Plaintiff has not alleged that any of the comments made by Ms. Bratton included any
racist language and has produced no direct evidence that any of the alleged adverse
treatment was based on race. While plaintiff argues that Caucasian employees were not
yelled at on their “idle time,” he does not present any evidence that any of the other
employees were doing the same activities as he was when Ms. Bratton yelled at him.
Accordingly, no reasonable jury could find that the alleged adverse treatment was based
on plaintiff’s race. See Williams, 643 F.3d at 512 (finding that no reasonable jury could
find that plaintiff’s allegations of adverse treatment was based on race where plaintiff
presented insufficient evidence to compare her treatment with that of her white coworkers and supervisors used no racist language).
Accordingly, for the reasons explained above, the Court will GRANT summary
judgment in favor of the defendant as to plaintiff’s Title VII hostile work environment
claim, and the claim will be dismissed.
35
B.
Hostile Work Environment Under the ADA
Defendant asserts that to the extent plaintiff makes a claim for hostile work
environment under the ADA, the “claim is bereft of substantive evidence and must be
dismissed” [Doc. 16, p. 23]. While plaintiff asserts in passing in his memorandum in
support of his response to defendant’s motion for summary judgment [Doc. 21-1] that he
is making advancing a claim for hostile work environment under the ADA, upon review,
it does not appear that he makes any such argument to that effect or points to any facts to
support a claim of a hostile work environment based upon his alleged disability.
Accordingly, to the extent that plaintiff asserts an ADA hostile work environment claim,
summary judgment is GRANTED as to that claim, and it is dismissed at this time.
VI.
Retaliation
A.
Retaliation Under the ADA
To make out a prima facie case of ADA retaliation, a plaintiff must prove (1) the
employee engaged in protected activity; (2) the employer took adverse action against the
employee; and (3) a causal connection between the protected activity and the adverse
employment action. Penny, 128 F.3d at 417. If the plaintiff establishes the prima facie
case, the burden will shift to the employer to show a legitimate, non-discriminatory basis
for the action. Id. The plaintiff employee must then show that the proffered reason was a
pretext for discrimination. Id. “[T]o establish a retaliation claim the plaintiff need not
prove that he had a disability under the ADA[;] [r]ather the protected activity is the
36
showing of a good-faith request for reasonable accommodations.” Baker v. Windsor
Republic Doors, 414 F. App’x 764, 777 n.8 (6th Cir. 2011) (citation omitted).
Defendant argues that plaintiff’s ADA retaliation claim fails as a matter of law
because plaintiff has not provided substantive facts to support his claim.
Citing
plaintiff’s deposition testimony, defendant asserts that plaintiff admitted to never having
requested a reasonable accommodation for his alleged disability in 2009. Defendant
argues that plaintiff’s requests for a reasonable accommodation in 2004 and 2007
occurred too remote in time to establish a causal connection between any protected
activity and any 2009 adverse employment action [Doc. 16, p. 27]. See Timm v. Wright
State Univ., 375 F.3d 418, 423 (6th Cir. 2004) (affirming district court’s grant of
summary judgment on First Amendment retaliation claim, finding eight months to be a
long period for employer to have retaliated against employee); Holley v. Giles Cnty.,
Tenn., 165 F. App’x 447, 452 (6th Cir. 2006) (“Hayward’s resignation occurred eleven
months after the personal injury suits were filed. Such a long time lag between the
speech and the adverse employment action is a strong indication that the action was not
retaliatory.”).
Plaintiff claims that he made a request for a reasonable accommodation [Doc. 225] and that such request was a “protected activity,” of which defendant was aware, for
purposes of ADA retaliation. As to the adverse employment action he suffered, plaintiff
submits that a reasonable jury could determine that he suffered an adverse action when he
was forced to choose between the Produce Associate position and quitting his position
37
with defendant. Without presenting evidence in support, plaintiff additionally claims that
he was required to use vacation and leave time when he was injured and that this was an
adverse action. Plaintiff argues that a reasonable jury could conclude that the adverse
employment actions he suffered were caused by his insistence that he be given an
accommodation to allow him to continue working.11
Defendant replies that plaintiff has not provided any facts to support a finding of a
causal connection between plaintiff’s request for a reasonable accommodation in 2007
and any adverse action alleged taken by defendant in 2009. The Court agrees. In light of
the Market group decision to eliminate the TMA Cashier position and the fact that
plaintiff was offered the open positions at the Club at the time, as discussed more fully
above, a reasonable jury could not find that defendant offering plaintiff the Produce
Associate position, a Cashier position, or to separate his employment in February 2009,
was in any way linked to plaintiff’s undisputed protected activity of his 2007 request for
a reasonable accommodation. The Court finds that plaintiff has failed “to establish the
requisite causal connection between the alleged incidents of retaliation and the protected
activity.” Walborn v. Erie Cnty. Care Facility, 150 F.3d 584, 589 (6th Cir. 1998) (citing
11
Plaintiff also claims that he was “given a retaliatory write-up for allegedly using unsafe
work practices when he sustained his on-the-job injury” [Doc. 21-1, p. 25]. Plaintiff in no way
expands upon this argument or alleges facts to support it. In fact, plaintiff’s responsive
memorandum characterizes this “retaliatory write-up” as harassment, rather than alleging it in
the context of retaliation. Plaintiff did not receive a pay reduction or any other disciplinary
action following the unsafe work practices write-up. “[A]n employee’s work violations
constitute a legitimate, nondiscriminatory reason for adverse employment decisions.” Walborn
v. Erie Cnty. Care Facility, 150 F.3d 584, 589 (6th Cir. 1998). Plaintiff does not claim that he
did not use unsafe work practices or that he was not responsible for the conduct described in the
write-up. The record includes no evidence that the write-up was retaliation.
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Zanders v. Nat’l R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir. 1990) (requiring
plaintiff to produce evidence “sufficient to raise the inference that her protected activity
was the likely reason for the adverse action”).
Accordingly, because plaintiff has failed to establish a prima facie case, the Court
hereby GRANTS summary judgment as to plaintiff’s ADA retaliation claim.
B.
Retaliation Under Title VII
Upon review of plaintiff’s complaint [Doc. 1] and his memorandum in support of
his response to defendant’s motion for summary judgment [Doc. 21-1], it does not appear
that he is advancing a claim for retaliation under Title VII, as he alleges no facts which
could support such a claim. Accordingly, to the extent that plaintiff attempts to assert a
claim for retaliation under Title VII, summary judgment is GRANTED as to that claim,
and the claim is dismissed at this time.
VII.
Working Off the Clock
Defendant also argues that to the extent that plaintiff sufficiently alleges a claim
for working off the clock in his complaint, such claim fails as a matter of law. In support,
defendant points out that plaintiff testified at his deposition that he only worked off the
clock while in his position as a People Greeter. As defendant claims that plaintiff only
worked in the People Greeter position prior to October 2007, defendant argues that even
taking plaintiff’s allegation as true, his claim fails because that would mean that his last
time working off the clock was approximately two years before he filed this Charge with
the EEOC, making the claims time-barred under Title VII and the ADA.
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While
plaintiff’s response notes some deposition testimony related to working off the clock,
[Doc. 21-1, p. 19], and claims that his being forced to work off the clock without
payment is a factor supporting his claim of hostile work environment, [Doc. 21-1, p. 25],
he does not respond to defendant’s argument that any separate claim of working off the
clock is time-barred.
The Court agrees with defendant that any claim sought to be brought under Title
VII or the ADA for working off the clock would be time-barred here, as having occurred
more than 300 days prior to the filing of the EEOC Charge. See 42 U.S.C. § 2000e5(e)(1); Alexander v. Local 496, 177 F.3d 394, 407 (6th Cir. 1999). Additionally, as
defendant points out, plaintiff’s Complaint does not reference the Fair Labor Standards
Act (“FLSA”) and even if it had, a claim under the FLSA would likewise be time-barred.
Accordingly, the Court GRANTS summary judgment as to plaintiff’s claim for working
off the clock, and it is dismissed at this time.
VIII. Conclusion
For the reasons stated herein, the Court will GRANT Defendant Sam’s East,
Inc.’s Motion for Summary Judgment [Doc. 15] in all respects.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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