Equal Employment Opportunity Commission v. Dolgencorp, LLC (TV3)
Filing
139
MEMORANDUM, OPINION AND ORDER: The Court DENIES Defendants Motion for Reconsideration of the Courts Order Denying Defendants Motion for SummaryJudgment as to Timeliness of Plaintiffs Claims or, Alternatively, Certification of Interl ocutory Appeal 96 , DENIES Intervening Plaintiffs Motion for Reconsideration of Courts Order Denying Plaintiffs Motion for Partial Summary Judgment 99 , and DENIES Defendants Motion for Reconsideration Based Upon Newly Discovered Evidence 125 . Signed by Chief District Judge Thomas A Varlan on 9/12/16. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,
and
LINDA K. ATKINS,
Intervening Plaintiff,
v.
DOLGENCORP, LLC,
Defendant.
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No.:
3:14-CV-441-TAV-HBG
MEMORANDUM OPINION AND ORDER
This civil action is before the Court on Defendant’s Motion for Reconsideration of
the Court’s Order Denying Defendant’s Motion for Summary Judgment as to Timeliness
of Plaintiffs’ Claims or, Alternatively, Certification of Interlocutory Appeal [Doc. 96],
Intervening Plaintiff’s Motion for Reconsideration of Court’s Order Denying Plaintiffs’
Motion for Partial Summary Judgment [Doc. 99], and Defendant’s Motion for
Reconsideration Based Upon Newly Discovered Evidence [Doc. 125]. The parties filed
responses, replies, and supplemental briefs in response and in further support of these
motions [Docs. 101, 102, 104, 105, 122, 127, 128, 129, 130, 133]. Defendant and
intervening plaintiff ask the Court to reconsider portions of its Memorandum Opinion and
Order issued on July 7, 2016 [Doc. 66]. Having reviewed the parties’ arguments, the
record in this case, and relevant law, the Court will deny all motions for reconsideration
[Docs. 96, 99, 125].
I.
Background1
Intervening plaintiff, Linda Atkins, was an employee of defendant, Dolgencorp,
LLC [Doc. 28-1 pp. 4, 6, 69]. Defendant terminated Atkins and she filed a Charge of
Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on
September 17, 2012—187 days after her discharge [Doc. 28-6 p. 2]. Following its
investigation of the charge, the EEOC filed a complaint against defendant on September
23, 2014, asserting claims under the Americans with Disabilities Act (“ADA”) for: (1)
failure to provide a reasonable accommodation; and (2) discriminatory discharge [Doc.
1]. Atkins filed her intervenor complaint on December 18, 2014, asserting claims under
the ADA for: (1) failure to provide a reasonable accommodation; (2) discriminatory
discharge; and (3) retaliation for activity protected by the ADA [Doc. 12].
On March 11, 2016, defendant moved for summary judgment on all claims [Doc.
28]. Also on March 11, 2016, the EEOC and Atkins (“plaintiffs”) moved for partial
summary judgment on their failure to accommodate and discriminatory discharge claims
[Doc. 31]. On July 7, 2016, the Court issued a Memorandum Opinion and Order granting
summary judgment in favor of defendant as to Atkins’s retaliation claim, and denying the
parties’ motions for summary judgment as to the failure to accommodate and
1
Although the Court discusses certain facts relevant to the Court’s analysis, the Court
presumes familiarity with the facts of this case as well as the analysis underlying the Court’s July
7, 2016, Memorandum Opinion and Order [Doc. 66].
2
discriminatory discharge claims [Doc. 66]. Defendant and Atkins now move the Court to
reconsider portions of the Court’s July 7, 2016, Memorandum Opinion and Order.
II.
Standard of Review
Pursuant to Rule 54(b) of the Federal Rules of Civil Procedure and the “inherent
power” that district courts possess, a court may reconsider interlocutory orders or reopen
portions of a case before a final judgment is entered. See Johnson v. Dollar Gen. Corp.,
No. 2:06-CV-173, 2007 WL 2746952, at *2 (E.D. Tenn. Sept. 20, 2007) (citing
Rodriguez v. Tenn. Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir.
2004); Mallory v. Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). This standard “vests
significant discretion in district courts.” Rodriguez, 89 F. App’x at 960 n.7. The Sixth
Circuit has stated that a district court’s authority allows a court to “afford such relief from
[interlocutory orders] as justice requires.”
Id. at 959 (citations omitted).
This
traditionally includes when the court finds there has been an intervening change of
controlling law, there is new evidence available, or there is a need to correct a clear error
or prevent manifest injustice. Id.
III.
Defendant’s Motions for Reconsideration
Defendant asks the Court to reconsider its July 7, 2016, Memorandum Opinion
and Order for two reasons. First, defendant argues that the Court was in clear error when
finding that the EEOC charge foundational to this action was subject to a 300-day filing
deadline, rather than a 180-day filing deadline. Should the Court decline to reconsider
this portion of the opinion, defendant asks that the Court certify the issue for
3
interlocutory appeal. Second, defendant asks the Court to reconsider its decision to deny
defendant’s motion to strike Katharine Kores’s declaration and the worksharing
agreement. Defendant presents the Court with newly discovered evidence in that regard.
Should the Court find for defendant on either issue, defendant argues that
plaintiffs’ claims are time-barred. The Court will first address defendant’s arguments
regarding the filing deadline and whether to certify the issue for interlocutory appeal.
Then, the Court will address the Kores declaration and worksharing agreement.
A.
Filing Deadline
A plaintiff asserting an ADA claim must comply with the administrative
exhaustion procedures set forth in 42 U.S.C. § 2000e-5.
42 U.S.C. § 12117(a)
(incorporating 42 U.S.C. § 2000e-5). Section 2000e-5 provides in relevant part:
A charge under this statute shall be filed within one hundred and eighty
days after the alleged unlawful employment practice . . . , except that in a
case of an unlawful employment practice with respect to which the person
aggrieved has initially instituted proceedings with a State or local agency
with authority to grant or seek relief from such practice . . . such charge
shall be filed by or on behalf of the person aggrieved within three hundred
days after the alleged unlawful employment practice occurred.
42 U.S.C. § 2000e-5(e)(1) (emphasis added). The EEOC’s regulations provide
further insight on § 2000e-5 and state that:
A jurisdiction having a FEP agency without subject matter jurisdiction over
a charge (e.g., an agency which does not cover sex discrimination or does
not cover nonprofit organizations) is equivalent to a jurisdiction having no
FEP agency. Charges over which a FEP agency has no subject matter
jurisdiction are filed with the Commission upon receipt and are timely filed
if received by the Commission within 180 days from the date of the alleged
violation.
4
29 C.F.R. § 1601.13.
Defendant argues plaintiffs’ allegation that defendant failed to reasonably
accommodate Atkins is foundational to plaintiffs’ remaining claims for failure to
accommodate and discriminatory discharge. Defendant asserts that the plain meaning of
the phrase “authority to grant or seek relief from such practice” in § 2000e-5 requires that
the state agency with which Atkins filed her charge in this case, the Tennessee Human
Rights Commission (“THRC”), have the authority to grant or seek relief from
defendant’s alleged failure to accommodate for the 300-day limit to apply. 42 U.S.C. §
2000e-5(e)(1). Because the Tennessee Disability Act (“TDA”) does not recognize the
practice of reasonable accommodation, defendant argues the THRC does not have the
authority to grant or seek relief from the challenged practice. As such, defendant asserts
that Atkins’s charge had to have been filed within 180 days, rather than within 300 days,
of the alleged unlawful employment practice. In its Memorandum Opinion and Order,
the Court applied the 300-day filing deadline to Atkins’s charge [Doc. 66 p. 27].
The Court notes that it is common for discrimination cases to involve multiple
related claims and theories of relief, some of which may be successful under state law,
and some of which may not. Courts, the EEOC, and litigants (plaintiffs and defendants
alike) have long operated under the notion that claims premised on a failure to
accommodate theory, like all other disability claims, are subject to a 300-day
administrative filing deadline applicable in Tennessee [Doc. 128-1 p. 2]. See, e.g., Oliver
v. Titlemax, 149 F. Supp. 3d 857, 862–68 (E.D. Tenn. 2016); Cockrill v. Metro. Gov’t of
5
Nashville/Davidson Cty., No. 3-13-0587, 2015 WL 136271, at *3–4 (M.D. Tenn. Jan. 9,
2015); Tate v. Sam’s E., Inc., No. 3:11-CV-87, 2013 WL 1320634, at *13 n.9 (E.D. Tenn.
Mar. 29, 2013); Arnold v. Federal-Mogul Prods., No. 2:11-126, 2013 WL 652524, at *1–
2 (M.D. Tenn. Feb. 21, 2013); Holleman v. BellSouth Telcoms., Inc., No. 3:09-CV-311,
2011 WL 3876590, at *7–8 (E.D. Tenn. Sep. 1, 2011). Although courts have consistently
applied the 300-day deadline to reasonable accommodation claims in Tennessee, the
Court notes that none of these cases directly analyze the statutory interpretation argument
defendant now makes.
A New Hampshire district court, however, did analyze the argument defendant
now makes and found that the 300-day filing deadline applied in Moher v. Chemfab
Corp., 959 F. Supp. 70 (D.N.H. 1997). Similar to the instant case, the defendant in
Moher argued that the plaintiff’s complaint was based on the defendant’s failure to
provide reasonable accommodation—a claim that was not actionable under New
Hampshire law. Id. at 71–72 (citation omitted). Consequently, the defendant argued that
the New Hampshire state agency lacked jurisdiction over that complaint, and therefore,
the plaintiff had to have filed the charge with the EEOC within 180 days. Id. at 72.
The district court in Moher rejected the defendant’s argument. To support its
ruling, the court pointed to the Supreme Court case Equal Employment Opportunity
Commission v. Commercial Office Products Co., 486 U.S. 107 (1988). In Commercial
Office Products, “[t]he Supreme Court held that applicable filing periods for EEOC
complaints are not affected by different state filing periods, because otherwise the EEOC
6
would be embroiled ‘in complicated issues of state law.’” Moher, 959 F. Supp. at 72
(quoting and discussing Commercial Office Prods., 486 U.S. at 124). The Supreme Court
emphasized that it was important “to establish ‘a rule that is both easily understood by
complainants and easily administered by the EEOC.’”
Id. (quoting and discussing
Commercial Office Prods., 486 U.S. at 124). Furthermore, the Supreme Court also
determined that “whether a state agency has ‘authority to grant or seek relief’ with
respect to a discrimination complaint is a matter properly decided based on a general
view of the enabling legislation establishing the state agency.”
Id. (quoting and
discussing Commercial Office Prods., 486 U.S. at 124). In light of the Supreme Court
precedent in Commercial Office Products, the court in Moher found that because the New
Hampshire agency protected against disability discrimination generally, it was an
appropriate and properly authorized agency with which to file employment disability
discrimination charges including a charge alleging a failure to accommodate. Id. at 72–
73.
The Court notes that Moher did not directly address the plain language of § 2000e5(e)(1), which defendant argues mandates the application of the 180-day filing deadline.
This Court, however, finds that the plain language of the statute is susceptible to multiple
meanings. Defendant argues that the 180-day limit must apply in this case because the
THRC does not have the authority to grant or seek relief from the challenged practice,
that is, a failure to reasonably accommodate. However, another permissible reading of
the text is that the THRC must be able to grant or seek relief from the practice of
7
disability discrimination more generally. The Court finds that this reading is in line with
the text of the statute and with the principles of interpretation detailed in the Supreme
Court’s ruling in Commercial Office Products.
The THRC’s power and duties include, in pertinent part, the power to “receive
initiate, investigate, seek to conciliate, hold hearings on and pass upon complaints
alleging violations of [the TDA].” See T.C.A. § 4-21-202(9). Even though the TDA
differs from the ADA in what constitutes discrimination on the basis of disability and
how to prove discrimination on the basis of disability, the TDA does cover the practice of
disability discrimination generally. By checking the “disability” box on her charge,
Atkins alleged disability discrimination, and thus, alleged that defendant violated the
TDA [Doc. 31-13]. Consequently, the THRC has the authority to grant or seek relief
over the practice that Atkins challenged, that is, disability discrimination generally. The
Court finds, therefore, that plaintiffs’ interpretation of § 2000e-5(e)(1) is consistent with
the text of the statute.
The Court notes that ruling in defendant’s favor on this issue would have complex
implications for applicants, the EEOC, and the courts. In Commercial Office Products,
the Supreme Court discouraged interpreting discrimination laws in ways that would
involve the interpretation of complicated state law issues, particularly because in
discrimination cases, “laymen, unassisted by trained lawyers, initiate the process.” See
Commercial Office Products, 486 U.S. at 123–24. The Supreme Court also emphasized
8
that courts should establish rules that are “both easily understood by complainants and
easily administered by the EEOC.” See id. at 124.
Here, defendant is asking the Court to make an on the merits determination as to
whether defendant violated the TDA before deciding which filing deadline applies. The
Court notes that the TDA and the ADA differ in respects other than whether they require
accommodations.
For example, unlike the ADA, the TDA does not prohibit
discrimination on the basis of association with a person with a disability or based on an
employer’s medical inquiries or testing procedures. Compare 42 U.S.C. § 12112(b)(4),
(d) with T.C.A. § 8-50-103. If the Court accepts defendant’s argument, employers will
be able to argue in future cases that the THRC would not have jurisdiction over any
claims of discrimination on these bases. The TDA and the ADA also have different
causation standards. Compare Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321
(6th Cir. 2012) (noting that the ADA has a “but for” causation standard) with T.C.A. § 850-103(b) (noting that the TDA requires that the adverse action was “solely because of”
the employee’s disability). Adhering to defendant’s restrictive interpretation of § 2000e5(e)(1) would require a determination of whether a practice was “solely because of” a
disability before determining whether the 300-day filing deadline applies. As such,
applicants, the EEOC, and courts would be required to make complex state law
determinations before deciding which filing deadline applies.
In addition, these determinations would not be limited to ADA claims.
In
deciding which limitations period applies, applicants, the EEOC, and the courts would
9
also need to determine whether theories of discrimination brought under Title VII—to
which the same limitations statute applies—are viable under state law. This result is
contrary to the Supreme Court’s policy considerations in Commercial Office Products
which encourage rules that are “easily understood.” 486 U.S. at 123–24.
The Sixth Circuit’s general practice in determining which filing deadline applies
also supports the application of a 300-day deadline. In discussing whether a 180-day or
300-day filing deadline applies, the Sixth Circuit has not analyzed complicated state law
issues, but instead has consistently focused on the simple determination of whether the
charge was filed in a “deferral state” or not. See e.g., Amini v. Oberlin Coll., 259 F.3d
493, 498 (6th Cir. 2001); EEOC v. Penton Indus. Pub. Co., 851 F.2d 835, 837 (6th Cir.
1998); Hall v. Ledex, Inc., 669 F.2d 397, 398 (6th Cir. 1982). Following that practice,
the 300-day deadline applies simply because Tennessee is a “deferral state.” See, e.g.,
Speck v. City of Memphis, 370 F. App’x 622, 625 (6th Cir. 2010); McDaniel v. Kindred
Healthcare, No. 1:06-CV-193, 2008 WL 522844, at *8 (E.D. Tenn. Feb. 26, 2008).
The defendant cites several cases in support of its interpretation, but the Court
finds that they are distinguishable. The defendant points to Williams v. E.I. du Pont de
Nemours & Co., No. 14-382, 2015 WL 4133067 (M.D. La. July 8, 2015). In Williams,
the district court held that because Louisiana’s equal employment law did not prohibit
retaliation, the 300-day deferral filing deadline did not apply to retaliation claims. Id. at
*10. Courts and the EEOC, however, have always treated retaliation as separate from
other forms of discrimination. See, e.g., Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
10
2517, 2519, 2528 (2013) (holding that different causation standards apply to traditional
Title VII discrimination claims and Title VII retaliation claims and also noting that
retaliation claims are authorized under separate statutory provisions contained within
anti-discrimination laws). Under the “cause of discrimination” section of the standard
EEOC form, there is a separate box for “retaliation” in addition to the boxes for “race,”
“color,” “sex,” “religion,” “age,” “national origin,” and “disability” [Doc. 31-13]. In
contrast, the EEOC form does not have a separate box for failure to provide a reasonable
accommodation. Instead, the failure to provide a reasonable accommodation falls under
the umbrella of disability discrimination. In Williams, therefore, the court was correct to
conclude that the state agency did not have the authority to grant or seek relief from the
general practice of retaliation. Here, however, the THRC does have the authority to grant
or seek relief from the general practice of disability discrimination, which in this case
includes allegations that defendant failed to reasonably accommodate Atkins.
Other cases cited by defendant involve situations in which state law did not apply
to the case because of the location where the alleged discriminatory practices took place.
Morris v. Eberle & BCI, LLC, No. 1:13-06113, 2014 WL 4352872, at *4–6 (D.N.J. Sept.
3, 2014) (state law did not apply to actions occurring in a federal enclave located within
the state); Busari-Ibe v. AGS-AECOM Co., No. 4:11-CV-625, 2012 WL 12090207, at *3–
4 (N.D. Tex. Jan. 25, 2012) (state law did not apply to actions occurring outside of the
United States); Judkins v. St. Joseph’s Coll. of Med., 483 F. Supp. 2d 60, 65–66 (D. Me.
Apr. 20, 2007) (presumption against extraterritorial application of state law precluded
11
application of anti-discrimination laws to events occurring outside of the United States).
Here, in contrast, Atkins was under the protection of Tennessee’s disability
discrimination laws when the alleged discriminatory practice took place.
Unlike the simple determination that a state does not protect against a general type
of discrimination, or that a state’s discrimination laws do not extend to a particular
defendant or location, the avenue defendant is asking the Court to travel would require
applicants, the EEOC, and courts to resolve complex state law issues before deciding
which filing deadline applies. Such a result is contrary to the Supreme Court’s decision
in Commercial Office Products.
Defendant also argues that the deposition of EEOC District Director Katharine
Kores confirms that a failure to provide reasonable accommodation is a distinct
employment practice over which the THRC has no authority to grant relief, and
consequently, the 180-day deadline should apply [Doc. 127 p. 3]. In Kores’s deposition,
counsel for defendant posed the question: “What are some unlawful employment
practices under the ADA?” [Doc. 127-1 p. 3]. In response, Kores mentioned “Failure to
hire, discharge, pay, terms and conditions of employment, harassment, reasonable
accommodation” [Id.]. The Court recognizes that a failure to provide a reasonable
accommodation can be considered a practice. The Court finds, however, a failure to
provide a reasonable accommodation is too specific to be a considered a practice as
contemplated in § 2000e-5(e)(1), particularly in light of the Sixth Circuit jurisprudence
previously discussed. See e.g., Amini, 259 F.3d at 498 (focusing solely on the simple
12
determination of whether the charge was filed in a deferral state in deciding the
applicable limitations period).
Consequently, Kores’s identification of a failure to
accommodate as a distinct practice has no bearing on the Court’s determination that the
word practice in § 2000e-5(e)(1) should refer to disability discrimination generally in this
context.
While not dispositive on this issue, Kores’s deposition is actually further evidence
that the EEOC looks to whether state agencies have subject matter jurisdiction over the
particular type of defendant as well as the particular category of charge in determining
whether the 300-day limit applies [See Doc. 130-1 pp. 10–11, 13–14 (using race, gender,
disability, and religious discrimination as examples of categories)]. Her testimony also
further supports that defendant’s interpretation of the statute would be unworkable in
practice. She states that her staff at the EEOC is not trained to examine “all the possible
minutia” of a charge to determine whether federal or state law applies to each claim [Id.
at 12]. Rather, they focus on the broader category of discrimination [Id.]. Kores’s
description of the inner workings of the EEOC is in line with what the Supreme Court
contemplated in Commercial Office Products and consistent with the policy issues
previously discussed. 486 U.S. at 124 (noting that courts should establish rules that are
“easily administered by the EEOC”). As such, the Court finds that Kores’s testimony
further supports that the word practice in § 2000e-5(e)(1) should be interpreted to mean
disability discrimination generally in this context.
13
In sum, the Court finds that it was not in clear error in determining that the 300day filing deadline applies.2
B.
Interlocutory Appeal of Filing Deadline Determination
Because the Court finds that a 300-day filing deadline applies, the Court now turns
to whether this issue is appropriate for interlocutory appeal. Defendant seeks the Court’s
leave to take an interlocutory appeal pursuant to 28 U.S.C. § 1292(b) to challenge the
Court’s decision that Atkins filed a timely charge of discrimination with the EEOC.
Section 1292(b) allows a district judge to permit that an order, which is not otherwise
appealable, to be appealable if: (1) there is substantial ground for difference of opinion;
(2) the order involves a controlling question of law; and (3) an immediate appeal may
materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). The
Sixth Circuit has determined that review under § 1292(b) should be used “sparingly” and
be reserved for “extraordinary” cases. Kraus v. Bd. of Cty. Road Comm’r for Kent Cty.,
364 F.2d 919, 922 (6th Cir. 1966).
The Court finds that defendant has not made the required showing to permit
interlocutory appeal under § 1292(b).
First, defendant has not shown that there is
substantial ground for differing opinions on the issue. As previously discussed, courts
have consistently applied a 300-day deadline for failure to accommodate claims filed in
Tennessee. Defendant has not cited any cases to suggest that there are differing opinions
2
The Court notes that Atkins also argues that in the event that the 180-day filing deadline
applies, it would be improper to dismiss any of her claims under the principle of equitable
tolling. Because the Court finds that the 300-day filing deadline applies, the Court need not
address whether equitable tolling is applicable.
14
as to this issue. Furthermore, the Court finds that both the plain meaning of the statute
and the principles of interpretation from the Supreme Court support its finding.
In addition, the filing deadline issue is not a controlling issue of law, and an
immediate appeal would not advance the ultimate termination of the litigation. A legal
issue is “controlling” when it could materially affect the outcome of the case “such as
when reversal of the District Court’s Order would terminate the action.”
Hurt v.
Commerce Energy, Inc., 92 F. Supp. 3d 683, 701 (N.D. Ohio 2015) (citations omitted).
In determining whether an appeal would materially advance the ultimate termination of
the litigation, courts consider whether the appeal will “appreciably shorten the time,
effort, and expense exhausted between the filing of a lawsuit and its termination.” Id. at
702 (citation omitted). “When litigation will be conducted in substantially the same
manner regardless of [the court’s] decision, the appeal cannot be said to materially
advance the ultimate termination of the litigation.” In re City of Memphis, 293 F.3d 345,
351 (6th Cir. 2002) (alteration in original) (citation omitted).
The Court notes that plaintiffs have the following two claims pending: a claim for
failure to provide reasonable accommodation and a claim for discriminatory discharge.
While defendant argues that the claim for discriminatory discharge is based on
defendant’s alleged failure to accommodate, the Court never reached that conclusion in
its July 7, 2016, Memorandum and Order. Aside from their argument that defendant
terminated Atkins as a result of defendant’s failure to accommodate, plaintiffs also argue
that defendant terminated Atkins for disability-related conduct. Defendant does not argue
15
that a termination for disability-related conduct would be subject to a 180-day filing
deadline. Defendant also did not ask the Court to reconsider reaching whether Atkins
was terminated for disability-related conduct.
Consequently, regardless of whether
plaintiffs’ failure to accommodate claim survives, their claim of discriminatory discharge
will need to be resolved at trial. Because there is a significant amount of overlapping
evidence between the failure to accommodate and the discriminatory discharge claims,
disposing of the failure to accommodate claim would not shorten the time, effort, or
expense needed to terminate the lawsuit and the litigation would be “conducted in
substantially the same manner.” Id.
In sum, the Court finds that defendant did not make the required showing to
permit interlocutory appeal, and interlocutory appeal is not appropriate in this case.
C.
Katharine Kores’s Declaration and Worksharing Agreement
Defendant also moves the Court to reconsider its July 7, 2016, Memorandum
Opinion and Order, based on newly discovered evidence.
In its July 7, 2016,
Memorandum Opinion and Order, the Court declined to strike Katharine Kores’s
declaration and the worksharing agreement. Defendant asks the Court to reconsider that
portion of its opinion.
The Court denied defendant’s motion to strike Kores’s declaration and the
worksharing agreement in part because the information contained in it was analogous to a
public record and equally available to both parties [Doc. 66 pp. 18–19]. In making this
16
determination, the Court found that any failure to disclose such information had a
minimal impact on defendant [Id.].
Defendant now argues that the deposition of Kores reveals that the worksharing
agreement between the EEOC and the THRC is not publically available in any
meaningful sense.
In particular, Kores admitted the worksharing agreement is not
available to the public absent a specific request and that she is not aware of the
availability of the agreement on the internet.
Defendant contends this revelation
demonstrates actual prejudice to defendant as a result of the EEOC’s failure to disclose
the worksharing agreement despite it being requested in discovery.
Defendant notes that it posed the following interrogatory to the EEOC: “If the
EEOC contends this lawsuit was timely filed, please state the factual basis for same and
identify any documents or things you contend support your contention” [Doc. 125-1 p. 3].
In response, the EEOC stated: “All documentation supporting the Commission’s
Complaint was submitted to Defendant on June 20, 2015 as part of the Commission’s
Initial Disclosures pursuant to Rule 26(a)(1). In accordance with Fed. R. Civ. P. 33(d),
see Bates No. EEOC_000001-000378” [Id. at 3–4]. In so answering, Kores, on behalf of
the EEOC, swore that the EEOC relied only on the 378 pages of documents to support its
contention that this lawsuit is timely. The worksharing agreement was nowhere in those
378 pages. Defendant argues that the EEOC should be required to stand by their original
contention that it would not use the worksharing agreement to support its argument that
the lawsuit was timely filed.
17
In the Court’s July 7, 2016, Memorandum Opinion and Order, the Court
determined that, even if plaintiffs violated their discovery obligations under Federal
Rules of Civil Procedure 26(a) or (e), the exclusion of the worksharing agreement was
not warranted as it would effectively result in dismissal of their claims. In doing so, the
Court noted that dismissal is a sanction of “last resort that may be imposed only if [a]
court concludes that a party’s failure to cooperate in discovery is due to willfulness, bad
faith, or fault.” Patton v. Aerojet Ordnance Co., 765 F.2d 604, 607 (6th Cir. 1985); see
also Signature Combs, Inc. v. United States, 222 F.R.D. 343, 345 (W.D. Tenn. 2004)
(applying this standard for dismissal when construing a motion to preclude as a request
for dismissal). Furthermore, when contemplating dismissal, a court should also assess:
(1) whether the opposing party was prejudiced by the discovery violation; (2) whether the
potentially dismissed party was warned that a discovery violation could lead to dismissal;
and (3) whether less drastic sanctions were imposed or considered before dismissal.
Fharmacy Records v. Nassar, 379 F. App’x 522, 523–24 (6th Cir. 2010).
As of July 7, 2016, when the Court issued its Memorandum Opinion and Order,
there was no evidence that plaintiffs acted with willfulness, bad faith, or fault. Defendant
now argues that Kores’s testimony reveals that “the EEOC’s litigation strategy amounted
to effectively ‘sandbagging’” defendant about the worksharing agreement [Doc. 126 p.
4].
The EEOC points out, however, that it offered the worksharing agreement in
response to defendant’s motion for summary judgment because defendant identified, for
18
the first time, an unsigned statement from the THRC indicating that the THRC does not
possess any records relating to Atkins’s charge. Notably, plaintiffs did not attach the
worksharing agreement to their own motion for summary judgment, which indicates that
they were under the impression that it was unnecessary evidence to prove their claims
were timely as a matter of law. Based on this information, the Court still finds no
evidence of willfulness, bad faith, or fault. In addition, it remains the case that the
plaintiffs were not warned that a failure to disclose the worksharing agreement could lead
to dismissal and no lesser sanctions have been imposed by the Court.
The Court’s final inquiry is whether Kores’s deposition demonstrates that
defendant was prejudiced by the late disclosure of the worksharing agreement. Even
though Kores states that she is not aware whether the worksharing agreement between the
EEOC and the THRC is available on the internet, the Court still finds that any prejudice
to defendant was minimal. In November 2015, defendant referenced the worksharing
agreement in answers to interrogatories, alleging as a basis for believing that plaintiffs’
suit was time-barred that “Atkins did not file a charge with the [THRC], and the
workshare agreement between the EEOC and the THRC does not save Atkins’s claim”
[Doc. 129-7 p. 2]. As such, defendant was aware of the worksharing agreement and
could have specifically requested it. In addition, Atkins’s EEOC charge states on its face
that it is filed contemporaneously with both the EEOC and the THRC [Doc. 129-8 p. 1].
Defendant, therefore, was on notice of a contemporaneous filing from early on in this
litigation.
19
Furthermore, the Sixth Circuit has specifically discussed the existence of a
worksharing agreement between the EEOC and THRC, noting that, pursuant to the
agreement, the THRC “acted as agent for the EEOC, and vice versa,” and that a charge
filed with one agency was simultaneously filed with both. Brown v. Crowe, 963 F.2d
895, 898 (6th Cir. 1992); see also Tate v. Shelby Cty. Road Dep’t, 19 F.3d 1434 (6th Cir.
1994).3
Defendant was therefore aware of, or at the very least should have been on notice
of, the worksharing agreement. As such, defendant could have requested the document
and the Court finds that any prejudice to the defendant as a result of the late disclosure
was minimal.
In sum, the Court still finds no reason to reconsider its decision to deny
defendant’s motion to strike Kores’s declaration and the worksharing agreement. As
such, defendant’s motion to reconsider on this basis will be denied.
IV.
Atkins’s Motion for Reconsideration
Atkins also filed a motion for reconsideration of the Court’s July 7, 2016,
Memorandum Opinion and Order. In its July 7, 2016, Memorandum Opinion and Order,
while analyzing plaintiffs’ failure to accommodate claim, the Court found that defendant
3
Defendant argues that these opinions could not put it on notice of the agreement
because they were issued nine and seven years, respectively, before the operative 2011–2012
worksharing agreement. Plaintiffs, however, point out that counsel for defendant has recently
litigated in other discrimination lawsuits on the issue of timeliness of an EEOC charge in
Tennessee. See Arnold v. Fed.-Mogul Prods., Inc., No. 2:11-126, 2013 WL 652524, at *1–3
(M.D. Tenn. Feb. 21, 2013). Also, notably, defendant does not deny or explain the fact that it
acknowledged the existence of the workshare agreement in November 2015, when responding to
interrogatories.
20
failed to engage in the interactive process [Doc. 66 pp. 35–36]. The Court, however,
ultimately denied plaintiffs’ motion for summary judgment as to the failure to
accommodate claim because the Court found a material question of fact as to whether
Atkins was actually deprived of a needed accommodation [Id. at 38]. Atkins argues that
the Court should reconsider this portion of its Memorandum Opinion and Order because
defendant’s failure to engage in the interactive process automatically constitutes a failure
to accommodate where plaintiff can prove that a reasonable accommodation would have
been possible. Atkins’s basis for the Court’s reconsideration appears to be that the Court
was in clear error in making its determination.
The fifth element necessary for a plaintiff to succeed on a failure to accommodate
claim is that “the employer failed to provide the necessary accommodation.” Johnson v.
Cleveland City Sch. Dist., 443 F. App’x 974, 982–83 (6th Cir. 2011) (emphasis added)
(citation omitted). Consequently, and as the Court noted in its Memorandum Opinion
and Order, there is no claim for a failure to accommodate if Atkins did not actually need
to be accommodated, that is, if she already had viable options available to her [Doc. 66 p.
35–36]. The Court discussed the various places defendant argued Atkins could have kept
her orange juice, and whether those were viable options [Id. at 36–38].
In her motion for reconsideration, Atkins argues that because defendant failed to
engage in the interactive process, she did not know that she had other options available to
her. She points out that it was not her responsibility to unilaterally explore all possible
21
accommodations to determine which were viable for her. Consequently, she asserts that
defendant failed to accommodate her as a matter of law.
The record establishes, however, that among other things Atkins occasionally
stored groceries in the front cooler [Doc. 31-4 pp. 18–23]. As such, there is a question of
fact as to whether plaintiff needed any accommodation because there is evidence that she
could have kept her orange juice in the front cooler. While Atkins is correct that she did
not need to unilaterally explore all options, because Atkins already stored groceries in the
front cooler, the record shows that Atkins already knew about this option.4 If storing her
orange juice in the front cooler was a viable option that Atkins knew about, she did not
need any accommodation and thus would not have a viable claim for failure to provide a
reasonable accommodation.
The Court notes that Atkins has not cited any precedent standing for the
proposition that an employee may have a valid claim for failure to provide a reasonable
accommodation where the employee did not actually need an accommodation. Because
the Court found a question of fact as to whether Atkins needed any accommodation, the
Court finds no clear error in its denial of plaintiffs’ motion for summary judgment as to
the failure to provide a reasonable accommodation claim.
4
As the Court pointed out in its Memorandum Opinion and Order, there is evidence that
storing groceries in the store cooler was against store policy [Doc. 66 p. 38]. As such, the Court
recognizes that storing orange juice in this cooler was not, necessarily, a valid option for Atkins.
However, the Court finds a material question of fact as to whether it was a valid option, and
consequently, as to whether Atkins was deprived of a needed accommodation.
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III.
Conclusion
For the reasons discussed herein, the Court DENIES Defendant’s Motion for
Reconsideration of the Court’s Order Denying Defendant’s Motion for Summary
Judgment as to Timeliness of Plaintiffs’ Claims or, Alternatively, Certification of
Interlocutory Appeal [Doc. 96], DENIES Intervening Plaintiff’s Motion for
Reconsideration of Court’s Order Denying Plaintiffs’ Motion for Partial Summary
Judgment [Doc. 99], and DENIES Defendant’s Motion for Reconsideration Based Upon
Newly Discovered Evidence [Doc. 125].
IT IS SO ORDERED.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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