Gleason v. Food City # 654 et al
Filing
34
MEMORANDUM AND OPINION as set forth in following order. Signed by District Judge Pamela L Reeves on 4/22/15. (c/m)(ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
ROBERT GLEASON,
Plaintiff,
v.
FOOD CITY 654, SAM TURNER, and
BUCKY SLAGLE,
Defendants.
)
)
)
)
)
)
)
)
)
)
No.: 3:13-CV-712-PLR-HBG
MEMORANDUM OPINION
Plaintiff, Robert Gleason, acting pro se, has filed this action against his former
employer, K-VA-T Food Stores, Inc., d/b/a Food City, Sam Turner, and Bucky Slagle.
Gleason alleges he was subjected to a hostile work environment, and he was terminated
from his employment after suffering a work-related injury. Food City has moved for
summary judgment on Gleason’s claims, asserting that (1) any claims for violation of
Tennessee law are time-barred; (2) Gleason cannot show that he was disabled under the
Americans With Disabilities Act (ADA); and (3) Gleason cannot maintain an action
against Sam Turner or Bucky Slagle, in their individual capacities. For the reasons which
follow, defendants’ motion for summary judgment will be granted and this action
dismissed.
I. Background
Food City operates grocery stores in several locations in East Tennessee. Gleason
was hired as a Bakery-Deli Manager on April 17, 2010. Gleason trained in several
different stores, and became a Bakery-Deli Manager of the Lenoir City store in July
2010. In February 2011, Gleason transferred to the Clinton store, and remained there
until his termination in December 2011.
A Bakery-Deli Manager is required to: (1) supervise employees in the department
to maximize sales and profitability; (2) control labor costs; (3) provide training and
development for employees; (4) implement marketing programs; (5) schedule work for
employees; (6) communicate regularly with the store manager and Bakery-Deli
employees; (7) attend department head meetings and communicate with other department
heads; and (8) complete all departmental paperwork.
At the Clinton store, Gleason reported to Store Manager Sam Turner. Turner
reported to the District Manager, Bucky Slagle. Food City also had a Bakery-Deli
Supervisor, who supervised the Bakery-Deli operations in stores around the district. The
Bakery-Deli Supervisor who worked with the Clinton store in 2011-2012 was Ron
Coffman.
Prior to his November 2011 work injury, Gleason received several written
disciplinary actions. On March 8, 2011, Turner issued Gleason a Written Correction
Notice, when Gleason left the store without checking with a manager. Turner noted that
the Department was not properly staffed, nor was it in good condition. Display tables
were empty and product was in the back room.
2
On May 6, 2011, Turner issued Gleason another Written Correction Notice for not
staffing the store for Mother’s Day weekend. In addition, Turner found that sales in the
Department were not in line with those of other departments in the store. Turner noted
that if Gleason did not get his “personal issues resolved so he can properly manage the
dept. further disciplinary actions up to and including demotion or termination will be
taken.” Gleason disputes that he left the Department understaffed. He states that he had
made plans to be out of town that weekend well in advance, and that he made appropriate
plans to staff the store before leaving.
On June 3, 2011, Gleason received another Written Correction Notice because he
instructed his employees to shut down the hot bar early, in contravention of a Company
email setting Bakery-Deli hours.
Gleason contended that it had previously been a
common practice to shut that area down early if business was slow.
On October 5, 2011, Turner issued Gleason a Written Correction Notice for
unsatisfactory work performance. Turner noted that Gleason had worked until the store
closed the previous night, October 4, and that the Bakery-Deli was in poor condition on
the morning of October 5. Turner found that product had not been put away; back-up
signature salads had not been made; product had not placed in a display case; and the
fryers had not been filtered. Gleason disputed that the fryers had not been filtered, and
disputed that the display case was not filled.
Gleason contends that the Bakery-Deli Department was understaffed and this
caused performance issues within the Department. When Gleason brought this matter up
in a meeting with Slagle and Turner, Slagle said that the Clinton store should hire more
3
people; however, Turner later instructed Gleason not to discuss staffing levels with Slagle
again, saying that doing so would only cause problems.
On November 18, 2011, Gleason fell down some steps at the store. He sustained
some contusions and a back strain. The physician at the emergency room held him out of
work for three days, until November 22, 2011. Prior to returning to work, Gleason saw
Dr. Lakia Brown. Dr. Brown issued a return-to-work report stating that Gleason could
return to work on November 24, 2011, with certain restrictions: “limited prolonged
standing,” and “limited lifting,” with a 10 to 15 pound limit.
Gleason asserts that Food City did not honor these work restrictions. He states
that he worked twelve hours on his first day back. He also states that many items in the
Bakery-Deli were heavier than his lifting restriction, but he was required to lift them
anyway. Gleason states that Turner told him that other employees could help him move
the pallet jack and items on it, but that another person was assigned to do so only once.
Gleason called Food City Claims Coordinator Peggy Parris to report that his work
restrictions were not being honored. Parris told him to work within his restrictions, and
indicated she would contact Turner.
Gleason also told Coffman on two or three
occasions that his restrictions were not being honored. Coffman indicated he would see
what he could do to help, but Gleason states he never received additional help.
On November 29, 2011, Gleason submitted another note from Dr. Brown, which
provided that Gleason was to work no more than eight hours per day, five days per week.
Gleason states that these restrictions were not honored by Food City.
4
In December, Gleason missed a few days of work. Dr. Brown gave him a note
stating that he could return to work on December 20, 2011. On the note, it appeared that
the “20” had been written over another number.
Turner noticed the revision, and
contacted Claims Coordinator Parris. Parris asked Dr. Brown’s office to fax the original
return-to-work note to her. The note that Dr. Brown’s office faxed to Parris stated
December 19, 2011, as the return-to-work date. The return-to-work note issued by Dr.
Brown also stated that Gleason had no work restrictions.
Food City concluded that Gleason had altered the date on the note, and Turner
terminated Gleason on December 20, 2011, for presenting a falsified note from his health
care provider. At Gleason’s request, Dr. Brown sent Food City a fax stating that she had
revised the return-to-work note, not Gleason. On the basis of Dr. Brown’s fax, Food City
rescinded the termination. Turner called Gleason and left a message letting him know the
termination had been rescinded, and that Gleason should contact him to obtain a work
schedule. Turner did not hear from Gleason for several days. Gleason eventually called
Food City’s Regional Human Resources Manager, Joe Greene. Greene told Gleason to
contact Turner to obtain a schedule and return-to-work date. Gleason contacted Turner
on December 24, and was instructed to return on December 26, 2011, to receive a work
schedule, and to meet with Turner and Coffman.
During Gleason’s absence, Turner asked Coffman to help with Bakery-Deli
operations at the Clinton Store. Coffman reported that interdepartmental transfers had
not been reported as required. Each department manager was required to complete the
5
reports monthly, so that Food City could accurately determine the profit and loss of each
department.
On December 26, 2011, Gleason went to the Clinton store and met with Turner
and Coffman. Turner and Coffman asked Gleason why the interdepartmental transfers
had not been completed. Gleason stated that he previously told Turner and Coffman that
the reports had not been completed; implied that other department managers did not
complete transfers monthly; and that he had done some himself at the Lenoir City store
with no consequences. Turner terminated Gleason in the meeting based on his failure to
submit the interdepartmental transfers timely, his previous disciplinary record, and the
poor condition of the Bakery-Deli department under his management.
Gleason filed a charge with the EEOC on May 23, 2012, alleging disability
discrimination. The EEOC issued a Notice-of-Right-to-Sue on September 10, 2013.
Gleason filed the instant Complaint on December 9, 2013.
II. Summary Judgment Standard
Food City has moved for summary judgment on all of Gleason’s claims.
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. Cattrett, 477 U.S. 317, 330 n. 2 (1986); Moore v. Philip Morris Co., Inc., 8 F.3d
335, 339 (6th Cir. 1993). All facts and inferences to be drawn therefrom must be viewed
6
in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Keifer, 301 F.3d 937, 942 (6th
Cir. 2002).
Once the moving party presents evidence sufficient to support a motion under
Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.
Celotex, 477 U.S. at 317. To establish a genuine issue as to the existence of a particular
element, the nonmoving 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. Id. 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 fact.” Street v. J.C. Bradford & Co., 886
F.2d 1472, 1479 (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.
III. State Law Claims are Time-Barred
Gleason is acting pro se, and his legal theories are not clear. To the extent that
Gleason is asserting a claim under the Tennessee Disability Act (TDA), it is time-barred
7
because the statute of limitations for bringing such an action is one year. See Tenn. Code
Ann. §§ 8-50-103(c)(2) and 4-21-311(d) (cause of action must be filed within one year of
alleged discriminatory practice). Gleason was discharged on December 26, 2011, but did
not file the instant action until December 9, 2013, almost two years later. Therefore, any
claim brought under the TDA is time-barred.
Any claim for retaliatory discharge for filing a worker’s compensation claim is
also subject to a one-year statute of limitations. See Tenn. Code Ann. § 28-3-104;
Webber v. Moses, 938 S.W.2d 387, 393 (Tenn. 1996).
Therefore, any claim for
retaliatory discharge under Tennessee law is time-barred.
In his response to defendants’ motion, Gleason asserts that because he timely filed
a charge with the EEOC, his claims under Tennessee law are timely. 1
However,
Tennessee law makes it clear that the statute of limitations for bringing a direct court
action is not tolled while administrative charges are pending with the EEOC. See Burnett
v. Tyco Corp., 932 F.Supp. 1039 (W.D.Tenn. 1996). Accordingly, the court finds that all
claims asserted by Gleason under Tennessee state law are time-barred.
IV. Supervisor Liability
Gleason has sued Turner and Slagle individually for their actions taken within
their capacity as Food City managers. Individual supervisors who do not independently
1
Despite the filing of Gleason’s response beyond the deadline, the court has exercised its
discretion to address the substantive issues raised by the parties, finding that defendants are not
prejudiced by permitting Gleason to respond to the motion out of time.
8
qualify under the statutory definition of employers may not be held personally liable in
ADA and Title VII cases. See Sullivan v. River Valley Sch. Dist., 197 F.3d 804, 808 (6th
Cir. 1999). Here, Gleason does not allege that Turner or Slagle took any actions toward
him in any capacity other than as Food City managers. Accordingly, there is no legal
basis on which to hold Turner and Slagle liable, and they will be dismissed as defendants
in this action. The court will next address Gleason’s claims for discrimination and
retaliation under the ADA.
V. Discrimination in Violation of the ADA
The ADA provides: “No covered entity shall 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.” 42 U.S.C. § 12112(a). To state a claim
under the ADA, Gleason must demonstrate (1) he is covered by the ADA; (2) he suffers
from or is regarded as suffering from a disability within the meaning of the ADA; (3) he
was qualified to perform the essential functions of the job, with or without reasonable
accommodation; and (4) he suffered an adverse employment action because of his
disability or perceived disability. Capobianco v. City of New York, 422 F.3d 47, 56 (2nd
Cir. 2005).
Not every impairment is a “disability” within the meaning of the ADA.
A
disability under the ADA is defined as: (1) a physical or mental impairment that
substantially limits a major life activity; (2) a record of such an impairment; or (3) being
9
regarded as having such an impairment. 42 U.S.C. § 12102(1). Working and lifting are
major life activities.
42 U.S.C. § 121102(2)(A).
Gleason claims that his fall and
resulting back strain on November 18, 2011, qualifies as a disability under the ADA
because it substantially limited a major life activity (working and lifting), and because he
was regarded as having a disabling impairment.
Generally, short term, temporary restrictions are not “substantially limiting” and
do not render a person disabled under the ADA. See Presutti v. Felton Brush Inc., 927
F.Supp. 545 (D.N.H. 1995) (back injury resulting in a temporary leave of absence is not a
“disability” under the ADA); Vulcu v. Trilox Research Lab. Inc., 993 F.Supp. 623, 626
(N.D.Ohio 1998) (temporary back injury not a disability because “it is well established
that the Act was never intended to apply to persons suffering from temporary conditions
or injuries”); Adams v. Citizens Advice Bureau, 187 F.3d 315, 316-17 (2nd Cir. 1999)
(temporary neck, back and knee injury lasting three and one-half months is not a
disability within the meaning of the ADA); Curry v. Cyprian Ctr., 17 Fed.Appx. 339 (6th
Cir. 2001) (temporary condition caused by back injury insufficient to render plaintiff
“disabled” within meaning of ADA); Nasser v. City of Columbus, 92 Fed.Appx. 261 (6th
Cir. 2004) (temporary back injury not disabling); De La Rosa v. Potter, 427 Fed.Appx.
28, 29 (2nd Cir. 2011) (temporary back injury not substantially limiting).
Here, Gleason’s restrictions were temporary and not severely restrictive. He fell
on November 18, missed a few days of work, then returned to work with a 10 to 15
pound lifting restriction and a restriction from excessive standing on November 24. On
November 29, he presented restrictions that limited him to working five days a week,
10
eight hours per day. On December 19, he presented a return-to-work note stating he
could return to work with no restrictions. His temporary restrictions on lifting and on the
hours he worked lasted about one month. Because his work restrictions lasted for only
one month, the court finds that Gleason’s disability was temporary. Therefore, Gleason
has failed to allege a physical impairment other than a short-term temporary restriction,
and his injury is not covered under the ADA. Accordingly, because Gleason was not
disabled; and he cannot maintain a claim under the ADA, whether based on an alleged
failure to accommodate, or on an allegedly hostile work environment, or on retaliatory
discharge.
Nor can Gleason show that Food City regarded him as disabled. Under the ADA,
a plaintiff will be regarded as having a qualifying impairment “if the individual
establishes that he or she has been subjected to an action prohibited under the Act
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).
Gleason alleges that Food City regarded him as disabled. He cannot maintain a claim on
a “regarded as disabled” basis, because his impairment lasted less than six months. The
“regarded as disabled” prong does “not apply to impairments that are transitory and
minor.” 42 U.S.C. § 12102(3). An impairment is transitory if it has “an actual or
expected duration of 6 months or less.” 42 U.S.C. § 12101(3)(B). The record shows that
Gleason’s impairments lasted only about one month.
The fact that Gleason had been
cleared to work without restriction by Dr. Brown precludes any finding that Food City
“regarded” Gleason as disabled.
Accordingly, he cannot maintain a “regarded as
11
disabled” claim. See Vulcu, 993 F.Supp. at 627 (“because plaintiff had been cleared to
work without restriction, it is impossible to conclude that the employer regarded him as
disabled”).
Because Gleason was not “disabled,” or “regarded as disabled,” he is
precluded from bringing any claim under the ADA for failure to accommodate, hostile
work environment, discriminatory/retaliatory discharge, or any other claim based on
disability.
In support of his claims, Gleason has submitted documents from the Tennessee
Department of Employment Security awarding him unemployment benefits after his
termination. However, under Tennessee Code Annotated § 50-7-304(k), unemployment
claims are not to be considered in any other action:
No finding of fact or law, judgment, conclusion, or final order made with
respect to a claim for unemployment compensation under this chapter may
be conclusive in any separate or subsequent action or proceeding in another
forum, except proceedings under this chapter, regardless of whether the
prior action was between the same or related parties or involved the same
facts.
The Sixth Circuit Court of Appeals has interpreted the Tennessee statute to mean that
decisions of the Tennessee Department of Employment Security cannot be used in civil
cases because they are the result of “quick and inexpensive hearings with different
standards of proof than civil trials. As a result, an unemployment hearing officer’s
decision should not be admitted in an employment discrimination suit.” Fleming v.
Sharp Mfg. Co. of Amer., 2012 WL 3049624 at *5 (W.D. Tenn. Jul. 25, 2012); see also
Reed v. Intermodal Logistics Serv. LLC, 2011 WL 4565450 (W.D. Tenn. Sept. 29, 2011);
12
Wright v. Columbia Sussex Corp., 2008 WL 972699 (E.D. Tenn. Apr. 7, 2008); Pascual
v. Anchor Advances Prods. Inc., 117 F.3d 1421 (6th Cir. 1997).
Based on this authority, the court finds that the Tennessee Department of
Employment Security decision submitted by Gleason is not relevant, and therefore not
admissible. As such, the decision may not be considered in connection with Gleason’s
opposition to defendants’ motion. A party opposing a motion for summary judgment
cannot meet the burden of coming forward with relevant evidence by simply relying on
legal conclusions or evidence which would be inadmissible at trial.
See Sperle v.
Michigan Dept. of Corr., 297 F.3d 483,495 (6th Cir. 2002) (“A party opposing a motion
for summary judgment cannot use inadmissible evidence to create a genuine issue of
material fact”). Accordingly, because any claims Gleason asserts under Tennessee state
law are time-barred, and because Gleason cannot show that he was “disabled” or
“regarded as disabled” under the ADA, the court finds that Food City is entitled to
judgment as a matter of law on his Complaint.
13
VI. Conclusion
In light of the foregoing discussion, defendants’ motion for summary judgment [R.
18] is GRANTED, and this action is DISMISSED in its entirety.
Enter:
____________________________________
UNITED STATES DISTRICT JUDGE
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?