Equal Employment Opportunity Commission v. Dolgencorp, LLC (TV3)

Filing 219

MEMORANDUM, OPINION AND ORDER: The Court DENIES defendants Motion to Amend Judgment and Motion for Judgment as a Matter of Law or, Alternatively, for New Trial 159 ; GRANTS in part and DENIES in part the EEOCs Motion for Permanent Injunction 161 , to the extent discussed herein; GRANTS defendants Motion to Disregard Issues Raised for the First Time in EEOCs Reply, or in the Alternative, for Leave to File a Sur-Reply 200 , to the extent that the Court considered defendants su r-reply [Doc. 200-1]; OVERRULES defendants objections to the R&R 217 ; ACCEPTS IN WHOLE the R&R 214 ; and GRANTS in part and DENIES in part Atkinss Motions for Award of Attorneys Fees and Costs 163 , 202 , 211 , in that the Court AWARDS Atkins $445,322.25 in attorneys fees and $1,676.95 in litigation expenses. Signed by Chief District Judge Thomas A Varlan on 9/28/17. (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 the following motions: (1) defendant’s
Motion to Amend Judgment and Motion for Judgment as a Matter of Law or, Alternatively,
for New Trial [Doc. 159]; (2) plaintiff Equal Employment Opportunity Commission’s (the
“EEOC”) Motion for Permanent Injunction [Doc. 161]; and (3) defendant’s Motion to
Disregard Issues Raised for the First Time in EEOC’s Reply, or in the Alternative, for
Leave to File a Sur-Reply [Doc. 200]. The parties filed several responses and replies to
these pending motions [Docs. 179, 182, 188, 193, 194, 199].
Also before the Court is the Report and Recommendation (the “R&R”) issued by
the Honorable H. Bruce Guyton, United States Magistrate Judge [Doc. 214]. In the R&R,
Judge Guyton recommends granting in part and denying in part intervening plaintiff Linda

Atkins’s Motions for Award of Attorneys’ Fees and Costs [Docs. 163, 202, 211].
Defendant filed objections to the R&R [Doc. 217], and Atkins responded to those
objections [Doc. 218].
For the reasons discussed herein, the Court will: (1) deny defendant’s Motion to
Amend Judgment and Motion for Judgment as a Matter of Law or, Alternatively, for New
Trial [Doc. 159]; (2) grant in part and deny in part the EEOC’s Motion for Permanent
Injunction [Doc. 161]; (3) grant defendant’s Motion to Disregard Issues Raised for the First
Time in EEOC’s Reply, or in the Alternative, for Leave to File a Sur-Reply [Doc. 200]; (4)
overrule defendant’s objections to the R&R [Doc. 217]; (5) accept the R&R in whole [Doc.
214]; and (6) grant in part and deny in part Atkins’s Motions for Award of Attorneys’ Fees
and Costs [Docs. 163, 202, 211].
I.

Procedural Background1
This action arises from defendant’s alleged discriminatory actions against Linda

Atkins in violation of the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq.
(“ADA”). The EEOC filed its complaint against defendant on September 23, 2014 [Doc.
1], and Atkins filed her intervenor complaint on December 18, 2014 [Doc. 12].2 Plaintiffs’
ADA claims based on defendant’s failure to accommodate Atkins’s disability and
discharge of Atkins because of her disability proceeded to a jury trial, which took place

1

The Court has previously recited the facts of this case in detail [Doc. 66]. The Court will
thus forego a complete recitation of the facts here, and will instead discuss the relevant facts within
the context of its analysis of each motion.
2

The Court will refer to the EEOC and Atkins collectively as “plaintiffs.”
2

September 12–16, 2016 [Docs. 151–56]. At trial, the jury found in favor of plaintiffs on
both claims and awarded Atkins $27,565.44 in back pay and $250,000 in compensatory
damages [Doc. 148]. The jury determined, however, that plaintiffs had not met their
burden of showing that defendant acted with malice or reckless indifference to Atkins’s
rights under the ADA and, consequently, the jury declined to award punitive damages
against defendant [Id.]. Consistent with the jury verdict, the Court entered judgment in this
case on September 23, 2016 [Doc. 149].
All parties subsequently filed post-trial motions.3 The Court will address the
following motions in turn: (1) defendant’s motion to amend judgment; (2) defendant’s
motion for judgment as a matter of law; (3) defendant’s motion for a new trial; (4)
defendant’s motion to reduce the jury award; (5) defendant’s motion to disregard portions
of the EEOC’s reply or for leave to file a sur-reply; and (6) the EEOC’s motion for
injunctive relief. Lastly, the Court will address Judge Guyton’s R&R [Doc. 214], which
includes a recommended disposition of Atkins’s motions for attorney’s fees and costs
[Docs. 163, 202, 211].
II.

Motion to Amend Judgment
Defendant moves the Court to alter or amend the judgment in this case pursuant to

Federal Rule of Civil Procedure 59(e). Specifically, defendant asks the Court to reconsider
its previous analysis of 42 U.S.C. § 2000e-5(e)(1) regarding the applicable administrative

3

Defendant combined its motion to amend judgment, motion for judgment as a matter of
law, motion for a new trial, and motion to reduce the jury award into one consolidated document
[Doc. 159].
3

filing deadline, enforce a 180-day deadline, and accordingly amend the judgment to
dismiss plaintiffs’ claims as untimely.
“A district court may grant a Rule 59(e) motion to alter or amend judgment only if
there is: ‘(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change
in controlling law; or (4) a need to prevent manifest injustice.’” Henderson v. Walled Lake
Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v. Henderson, 428
F.3d 605, 620 (6th Cir. 2005)). Rule 59 motions “are not intended as a vehicle to relitigate
previously considered issues . . . and are not the proper vehicle to attempt to obtain a
reversal of a judgment by offering the same arguments previously presented.” Kenneth
Henes Special Projects Procurement v. Cont’l Biomass Indus., Inc., 86 F. Supp. 2d 721,
726 (E.D. Mich. 2000) (emphasis and citation omitted); see also Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (noting that a Rule 59(e)
motion “is not an opportunity to re-argue a case” nor an avenue to raise arguments that
“could have, but [were] not” raised before); Beltowski v. Bradshaw, No. 1:08-cv-2651,
2009 WL 5205368, at *4 (N.D. Ohio Dec. 23, 2009) (“The motion for reconsideration
should not provide the parties with an opportunity for a second bite at the apple.”).
“The grant or denial of a Rule 59(e) motion is within the informed discretion of the
district court.” Constr. Helicopters, Inc. v. Heli-Dyne Sys., Inc., Nos. 88-1166, 88-1192,
1989 WL 54111, at *4 (6th Cir. May 23, 1989) (citations omitted)). The narrow aims of
Rule 59(e) focus on empowering district courts to rectify their own mistakes immediately
following the entry of judgment. See United States v. Willyard, No. 3:07-cr-44, 2008 WL
4

471683, at *2 (E.D. Tenn. Feb. 19, 2008) (citations omitted). The moving party must “set
forth facts or law of a strongly convincing nature to induce the court to reverse its prior
decision.” McDaniel v. Am. Gen. Fin. Servs., No. 04-2667 B, 2007 WL 2084277, at *2
(W.D. Tenn. July 17, 2007).
Defendant argues the Court should amend the judgment because the Court
committed a clear error of law and there is a need to prevent manifest injustice. In
particular, defendant asserts that a 180-day administrative filing deadline is applicable to
plaintiffs’ claims. Defendant has repeated this argument in multiple filings before the
Court [Docs. 28, 29, 39, 49, 96, 97, 104, 127, 133], and the Court has rejected it in two
separate opinions [Doc. 66 pp. 24–27; Doc. 139 pp. 5–10].
The Court previously interpreted the phrase “unlawful employment practice,” set
forth in 42 U.S.C. § 2000e-5(e)(1), as encompassing the practice of disability
discrimination generally [Doc. 139 pp. 5–10]. Defendant contends that this finding
constitutes clear error as, according to defendant, the phrase unlawful employment practice
“has consistently and unambiguously referred in federal law—and the EEOC’s own
guidance—to specific employment practices as discriminatory hiring, promotion,
discipline, or failure to accommodate, not ‘disability discrimination generally’” [Doc. 172
pp. 5–6].
The Court detailed, in two different opinions, the rationale behind its interpretation
of the phrase “unlawful employment practice,” and the Court notes that Rule 59 motions
“are not intended as a vehicle to relitigate previously considered issues.” Kenneth Henes
5

Special Projects Procurement, 86 F. Supp. 2d at 726. Entertaining defendant’s previously
litigated argument would provide defendant not only with an improper “second bite at the
apple,” but a third. See Beltowski, 2009 WL 5205368, at *4. As such, the Court finds that
defendant’s argument concerning the proper interpretation of § 2000e-5(e)(1) is
inappropriate for purposes of a motion for reconsideration. Furthermore, the Court finds
that defendant has not “set forth facts or law of a strongly convincing nature to induce the
court to reverse its prior decision.” McDaniel, 2007 WL 2084277, at *2.
Accordingly, the Court will deny defendant’s motion for reconsideration for the
same reasons set forth in its previous opinions [Doc. 66 pp. 24–27; Doc. 139 pp. 5–10].
The Court incorporates by reference its previous analyses in these opinions on the issue of
the timeliness of plaintiffs’ claims.
III.

Motion for Judgment as a Matter of Law
Defendant also moves for judgment as a matter of law pursuant to Federal Rule of

Civil Procedure 50. Rule 50 permits a party to renew a motion for judgment as a matter of
law within twenty-eight days of the entry of judgment. Fed. R. Civ. P. 50(b). “In ruling
on the renewed motion, the court may: (1) allow judgment on the verdict, if the jury
returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of
law.” Id.
To succeed on a motion for judgment as a matter of law, the movant must show that
a “reasonable jury would not have a legally sufficient evidentiary basis” to find for the nonmoving party. Fed. R. Civ. P. 50(a)(1). In considering this question, the Court may not
6

weigh the evidence or question the credibility of the witnesses. Schwartz v. Sun Co.
(R&M), 276 F.3d 900, 903 (6th Cir. 2002). Ultimately, the Court may not substitute the
jury’s judgment for its own. Id. Rather, the Court “must view the evidence in the light
most favorable to the party against whom the motion is made, drawing from that evidence
all reasonable inferences in his favor.” Id. (citation and internal quotation marks omitted).
Defendant asserts that it is entitled to judgment as a matter of law as to plaintiffs’
failure to accommodate and discriminatory discharge claims. The Court will first address
the failure to accommodate claim and will then turn to the discriminatory discharge claim.
A.

Failure to Reasonably Accommodate Claim

Defendant submits that it is entitled to judgment as a matter of law on plaintiffs’
failure to reasonably accommodate claim because: (1) plaintiffs did not present proof that
Atkins actually needed an accommodation; and (2) defendant did not have an obligation to
engage in the interactive process. The Court will address these arguments in turn.
1.

Necessary Accommodation

In order to prevail on a reasonable accommodation claim, a plaintiff must show that
the employer failed to provide a necessary accommodation. Johnson v. Cleveland City
Sch. Dist., 443 F. App’x 974, 982–83 (6th Cir. 2011). Defendant asserts that no reasonable
juror could have concluded that Atkins actually needed an accommodation because Atkins
already had “numerous viable options” available to prevent a hypoglycemic episode, “none
of which required a variation from [defendant’s] policy” [Doc. 172 p. 11].

7

Defendant points out that Atkins’s primary care provider, Linda Thayer, testified
that a diabetic patient experiencing low blood sugar should “ingest glucose in some form,
approximately 100 calories” [Doc. 151 p. 104]. Thayer further provided that a patient can
fit multiple forms of glucose in her pockets, including: glucose tablets, gels, liquids, candy,
and foods with sugar in them, such as a pack of peanut butter crackers [Id. at 117–19, 21].
In addition, Thayer explained that, irrespective of a patient’s preference, all of those
options are equally viable [Id. at 119]. She also stated that she regularly discusses such
treatment options with her patients [Id. at 122].
During the trial, Atkins admitted that: (1) she has carried candy to address low blood
sugar in the past; (2) she previously purchased glucose tablets, which she kept in her car;
(3) a package of peanut butter crackers would prevent a hypoglycemic episode; and (4) she
used honey for low blood sugar episodes [Doc. 151 pp. 156–57, 161, 163; Doc. 154 p. 68].
Atkins stated that “lots of things work,” but that she preferred orange juice to other
alternatives [Doc. 154 p. 68]. Based on this evidence, defendant asserts that “[n]o
reasonable juror could conclude that Atkins did not have viable options available to her to
address her low blood sugar, options of which she was aware and which were medically
effective” [Doc. 172 p. 12].
The Court finds, however, that even if this evidence established, as a matter of law,
that these other options were medically effective, and that Atkins knew they were
medically effective, a reasonable juror could have concluded that Atkins did not know that
exercising such options would not violate defendant’s policies. Defendant’s “Personal
8

Appearance” policy states, “Employees should not chew gum or eat/drink, except during
breaks (which should not be taken on the sales floor, at registers, etc.)” [Doc. 28-1 p. 101].
Viewing this evidence in the light most favorable to plaintiffs, a reasonable jury could
conclude that a policy prohibiting an employee from chewing gum and eating food would
also prohibit an employee from consuming items such as glucose tablets, cough drops,
candy, and honey packets.
Defendant points out that plaintiffs did not present any proof that defendant has ever
prohibited its employees from taking medication. However, plaintiffs presented evidence
that Atkins’s manager, Wanda Shown, indicated it would be against company policy for
Atkins to drink orange juice at the register, even though it was for a medical purpose [Doc.
154 pp. 16–17]. Although Jeri West, defendant’s Employee Relations Manager, testified
that defendant would not prohibit Atkins from having glucose tablets, cough drops, candy,
or honey packets at the register [Doc. 155 pp. 157–58], a reasonable jury could determine
that this testimony is contrary to the information Wanda Shown gave Atkins regarding
consuming juice at the register. While defendant contends that ingesting glucose tablets,
cough drops, candy, or honey packets would not be in violation of the Personal Appearance
policy, a reasonable jury could conclude that these items are analogous to food or gum, and
that the policy prohibits eating food or chewing gum at the register. The Court also notes
that the Personal Appearance policy does not contain an exception for taking medication
[See Doc. 28-1 p. 101].

9

Because a reasonable jury could conclude that Atkins did not know whether having
glucose tablets, cough drops, candy, or honey packets at the register violated defendant’s
policies, and because Wanda Shown did not inform her that she was allowed to have these
items for a medical purpose, a reasonable jury could conclude that Atkins needed an
accommodation. If, as defendant argues, having glucose tablets, cough drops, candy, or
honey packets at the register would not violate the Personal Appearance policy, then
defendant should have engaged in the interactive process and discussed those options with
Atkins after she requested an accommodation. The Court will further address this issue
below.
2.

The Interactive Process

Defendant argues that it is entitled to judgment as a matter of law because it was not
obligated to engage in the interactive process.

Once an employee requests an

accommodation, “the employer has a duty to engage in an ‘interactive process’ to ‘identify
the precise limitations resulting from the disability and potential reasonable
accommodations that could overcome those limitations.’” Melange v. City of Center Line,
482 F. App’x 81, 84 (6th Cir. 2012) (citing Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d
862, 871 (6th Cir. 2007)). This “interactive process is mandatory, and both parties have a
duty to participate in good faith.” Kleiber, 485 F.3d at 871.
“Employers who fail to engage in this interactive process in good faith face liability
under the ADA if reasonable accommodations would have been possible.” Burress v. City
of Franklin, 809 F. Supp. 2d 795, 813 (M.D. Tenn. 2011) (quoting Lafata v. Church of
10

Christ Home for the Aged, 325 F. App’x 416, 422 (6th Cir. 2009)). A claim for a failure
to engage in an interactive process requires that the employee demonstrate that she “could
have been reasonably accommodated but for the employer’s lack of good faith.”
Breitfelder v. Leis, 151 F. App’x 379, 386 (6th Cir. 2005). However, where the reasonable
accommodation is obvious, it may not be necessary for the parties to engage in the
interactive process. See 29 C.F.R. § 1630.9, App. (“In many instances, the appropriate
reasonable accommodation may be so obvious to either or both the employer and the
individual with a disability that it may not be necessary to proceed in this step-by-step
fashion.”).
Here, defendant does not dispute that Atkins requested an accommodation and that
defendant did not engage in the interactive process. Rather, defendant argues that it did
not need to engage in the interactive process because doing so would have turned defendant
into a de facto healthcare provider and because the other options available to Atkins were
obvious.
As to defendant’s first point, it argues that engaging in the interactive process would
require it to opine on whether ingesting glucose tablets, cough drops, candy, or honey
packets are equally effective at preventing hypoglycemic attacks as drinking orange juice.
The Court finds, however, that defendant misconstrues the purpose of the interactive
process in this case. The purpose of the interactive process here would be for Atkins to
suggest medically effective solutions and for defendant to inform Atkins either that those

11

solutions did not violate defendant’s policies, or that defendant could provide exceptions
to such policies as a reasonable accommodation.
After Atkins asked Shown if she could carry orange juice at the register, instead of
telling her to be careful of the cameras, Shown could have asked Atkins whether there was
something smaller she could carry that would prevent a hypoglycemic episode. At which
point, Atkins could have either suggested items like glucose tablets, cough drops, candy,
or honey packets, or she could have consulted with her medical provider. Shown also could
have referred Atkins to Jeri West, who could have then informed Atkins that carrying and
eating glucose tablets, cough drops, candy, or honey packets at the register would not
violate defendant’s policies. Had Shown referred Atkins to another manager, the jury heard
evidence that another manager would have provided plaintiff with her requested
accommodation. Matthew Irwin, defendant’s Regional Loss Prevention Manager, testified
that defendant would have allowed Atkins to keep juice at the register for medical reasons
and that doing so would not have been an undue hardship on defendant [Doc. 153 p. 114].
Because defendant failed to engage in this process, however, a reasonable jury could
conclude that defendant failed in its obligation to “make a reasonable effort to determine
the appropriate accommodation.” Gantt v. Wilson Sporting Goods, Co., 143 F.3d 1042,
1046 (6th Cir. 1998). Consequently, the Court finds that defendant’s argument that
engaging in the interactive process would turn defendant into a de facto healthcare provider
is without merit.

12

Defendant also argues that it had no obligation to engage in the interactive process
because Atkins’s other options were obvious.

As the Court has already discussed,

however, a reasonable jury could determine that eating glucose tablets, cough drops, candy,
or honey packets at the register, even if the employee did so for a medical purpose, would
not comply with defendant’s Personal Appearance policy. As such, the Court finds that a
reasonably jury could conclude that Atkins did not have any obvious viable options
available to her.
Based on the evidence presented at trial, a reasonable jury could have concluded
that defendant had an obligation to participate in the interactive process, and failed to do
so. In sum, upon review of the evidence, the Court finds that defendant is not entitled to
judgment as a matter of law as to plaintiffs’ failure to accommodate claim because the
evidence at trial presented a legally sufficient evidentiary basis for the jury to find
defendant liable as to that claim.
B.

Discriminatory Discharge Claim

Defendant contends that it is entitled to judgment as a matter of law as to plaintiffs’
discriminatory discharge claim because: (1) no reasonable juror could have concluded
Atkins was replaced, the job remained open, or similarly situated non-protected employees
were treated more favorably; and (2) there is no cause of action for termination flowing
from a failure to accommodate. The Court will address these arguments in turn.

13

1.

Whether Atkins Was Replaced, the Job Remained Open, or
Similarly Situated Non-Protected Employees Were Treated More
Favorably

For plaintiffs to prevail on their claim for discriminatory discharge, plaintiffs must
have submitted proof that Atkins was replaced, the job remained open, or similarly situated
non-protected employees were treated more favorably. Hopkins v. Elec. Data Sys. Corp.,
196 F.3d 655, 660 (6th Cir. 1999). Defendant contends that plaintiffs did not make this
showing because defendant presented evidence at trial that two non-disabled workers,
Mark Beaver and Sandra Viefeld, were terminated on the same day as Atkins, by the same
supervisors, and for the same reason Atkins was terminated.
A plaintiff cannot show dissimilar treatment if the evidence establishes that she
“was treated the same as a similarly situated individual outside [the] protected class[].” See
Key v. Cincinnati Hamilton Cty. Cmty. Action Agency, No. 1:09-CV-139, 2011 WL
4548922, at *10 (S.D. Ohio 2011) (applying this principle to race and age discrimination).
In determining whether employees are similarly situated, it is necessary to consider
“whether the individuals have dealt with the same supervisor, have been subject to the same
standard[,] and have engaged in the same conduct without such differentiating or mitigating
circumstances that would distinguish their conduct or their employer’s treatment of them
for it.” Wright v. Murray Guard, Inc., 455 F.3d 702, 710 (6th Cir. 2007) (citations and
internal quotation marks omitted).
In the Court’s previous Memorandum Opinion and Order denying summary
judgment, the Court determined that Viefeld and Beaver were not similarly situated to
14

Atkins because they, unlike Atkins, did not violate the anti-grazing policy due to a medical
emergency [Doc. 66 p. 45].

The Court found that this distinction constituted a

differentiating or mitigating circumstance and, therefore, that Viefeld and Beaver’s
termination could not negate plaintiffs’ showing of dissimilar treatment [Id.].
During trial, the Court instructed the jury that in considering whether defendant
treated other employees the same as Atkins, it should consider whether the employees were
“the same in all relevant aspects,” and gave examples of factors to consider in making the
determination of whether the employees were “similarly situated” [Doc. 156 pp. 192–93].
Upon review of the evidence, a reasonable jury could conclude, as the Court previously
did, that Viefeld and Beaver were not similarly situated to Atkins, and thus, were not
comparable under the circumstances.
Although a reasonable jury could have determined that Viefeld and Beaver were not
comparable under the circumstances, plaintiffs still must have otherwise shown that Atkins
was replaced, the job remained open, or similarly situated non-protected employees were
treated more favorably than Atkins. Atkins argues that it would have been reasonable for
the jury to conclude that defendant treated similarly situated, non-protected employees
more favorably when it did not discipline, let alone discharge, Wanda Shown or Tracy
Choate for allowing grazing in their store.
Employees do not have to engage in identical conduct to be “similarly situated.”
Jackson v. VHS Detroit Receiving Hosp., Inc., 814 F.3d 769, 778 n.4 (6th Cir. 2016).
Rather, in determining whether employees are similarly situated, the focus should be “on
15

the severity of the differently treated employees’ actions,” including “the actual and
potential consequences of the employee’s actions.” Id. at 780.
Here, the jury heard evidence that Choate saw Atkins buy Little Debbie cakes that
she had already consumed [Doc. 154 pp. 250–51]. The jury also heard evidence that Matt
Irwin was aware that Choate had witnessed employees grazing [Doc. 155 p. 92]. Despite
defendant’s policy that store managers can be disciplined for allowing employees to violate
the grazing policy, Choate was not disciplined for her actions [Id.; Doc. 154 p. 253]. In
addition, the jury heard evidence that Matt Irwin and Scott Strange were aware that Shown
had previously excused Atkins’s grazing [Doc. 154 pp. 170–71]. However, Irwin and
Strange did not discuss this violation with Shown and did not discipline her for excusing
Atkins’s grazing. [Doc. 153 p. 112; Doc. 154 pp. 170–71].
As defendant considered grazing a terminable offense, a reasonable jury could
conclude that defendant’s decision not to terminate, or even discipline, Choate and Shown
for excusing grazing resulted in defendant treating similarly situated non-protected
employees more favorably than Atkins. Consequently, it was reasonable for the jury to
conclude that defendant treated similarly situated, non-protected employees more
favorably than Atkins.
2.

Discriminatory
Accommodate

Discharge

Resulting

From

a

Failure

to

Defendant asserts that it is entitled to judgment as a matter of law on plaintiffs’
discriminatory discharge claim because there is no separate cause of action for a

16

termination resulting from a failure to accommodate. Defendant contends that Atkins’s
termination would, at most, represent a measure of her damages, not a stand-alone claim.
One case defendant cites to support this position is Bartee v. Michelin N. Am., Inc.,
374 F.3d 906 (10th Cir. 2004). In that case, a jury returned a verdict in favor of the
employee on the failure to accommodate claim and in favor of the employer on the
wrongful termination claim. Id. at 910, 911 n.1 (indicating that the jury received a verdict
form with two separate claims). The court in Bartee found that because the elements of
the two claims differ, “they appear to present separate and distinct causes of action,” and,
consequently, that the jury verdict was consistent despite its finding that the employer was
liable for the failure to accommodate claim and that the employer was not liable for the
discriminatory discharge. Id. at 911. Although the employee asserted that the failure to
accommodate led to his discharge, the jury disagreed. Bartee v. Michelin N. Am., Inc., 160
F. App’x 810, 812–13 (10th Cir. 2006) (“Bartee II”).
Here, as in Bartee, the jury could have determined that plaintiffs satisfied the
elements of their failure to accommodate claim, but that the discharge was not
discriminatory.

For example, the jury could have credited the testimony that the

termination resulted from plaintiff’s violation of the anti-grazing policy by eating Little
Debbie cakes. Consequently, the Court finds that Bartee and Bartee II support the
proposition that a plaintiff can allege separate causes of action for a failure to accommodate
and a discriminatory discharge based on that failure to accommodate. See, e.g., Gandall v.
Flightsafety Int’l, Inc., No. 12-CV-82, 2012 WL 3000257, at *1 (N.D. Okla. July 23, 2012)
17

(citing Bartee for the proposition that a plaintiff can plead failure to accommodate and
discriminatory discharge as separate claims).
Accordingly, the Court finds that a reasonable jury could find that plaintiffs proved
their discriminatory discharge claim based on a failure to accommodate. As the Court has
determined that all of defendant’s arguments in favor of its motion for judgment as a matter
of law are without merit, the Court will deny that motion.
IV.

Motion for a New Trial
Defendant also moves for a new trial under Federal Rule of Civil Procedure 59(a).

A new trial is warranted under Rule 59(a) “when a jury has reached a ‘seriously erroneous
result’ as evidenced by: (1) the verdict being against the weight of the evidence; (2) the
damages being excessive; or (3) the trial being unfair to the moving party in some fashion,
i.e., the proceedings being influenced by prejudice or bias.” Holmes v. City of Massillion,
78 F.3d 1041, 1045–46 (6th Cir. 1996). In addition, a party may move for a new trial based
on a trial court’s erroneous admission of evidence or improper jury instructions amounting
to “more than harmless error.” Kendel v. Local 17-A UFCW, 512 F. App’x 472, 479 (6th
Cir. 2013). Harmless error results when the Court has “fair assurance” that the outcome of
the trial was not affected by the error. Id.
Defendant argues that it is entitled to a new trial because: (1) the verdict was against
the weight of the evidence; (2) the Court provided improper jury instructions; (3) the Court
erroneously excluded evidence; and (4) the damages were excessive. The Court will
address each of these arguments in turn.
18

A.

Weight of the Evidence

In deciding a Rule 59(a) motion based on the weight of the evidence, the Court
“must compare the opposing proofs, weigh the evidence, and set aside the verdict if it is of
the opinion that the verdict is against the clear weight of the evidence.” Strickland v. Owens
Corning, 142 F.3d 353, 357 (6th Cir. 1998). The Court may grant a motion for a new trial
based on the weight of the evidence upon on a lower showing than that required for granting
a motion for judgment as a matter of law. Denhof v. City of Grand Rapids, 494 F.3d 534,
543 (6th Cir. 2007). However, the Court “should deny the motion if the verdict is one
which could reasonably have been reached, and the verdict should not be considered
unreasonable simply because different inferences and conclusions could have been drawn
or because other results are more reasonable.” Strickland, 142 F.3d at 357.
In support of its argument for a new trial based on the verdict being against the
weight of the evidence, defendant refers to its arguments in favor of its motion for judgment
as a matter of law. Specifically, defendant argues that the verdict was clearly against the
weight of the evidence because Atkins had viable and obvious options to address any low
blood sugar episode, and these options would not have required defendant to excuse her
from its policies. In addition, defendant asserts that because Atkins was treated the same
as non-disabled comparable employees, plaintiffs did not establish that defendant treated
similarly situated, non-protected employees more favorably.
The Court incorporates its previous discussion of these issues and finds that even in
light of the lower standard applicable to a motion for a new trial, and after weighing the
19

evidence, the jury verdict was reasonable based on the evidence the parties presented at
trial. In particular, the Court notes that the Personal Appearance policy does not contain
an exception for taking medication [see Doc. 28-1 p. 101], and because defendant did not
engage in the interactive process, the Court finds that the weight of the evidence supports
finding that Atkins did not know about the other allegedly viable options. The Court has
also detailed the differentiating circumstances between Atkins and those of Viefeld and
Beaver, and the Court finds that such circumstances justify the jury’s determination that
Atkins was not similarly situated to Viefeld and Beaver. Accordingly, the Court finds that
the weight of the evidence does not support finding that defendant is entitled to new trial
in this matter.
B.

Improper Jury Instructions

Defendant also asserts that it is entitled to a new trial based on the Court’s allegedly
improper jury instructions. Jury instructions are proper if, as a whole, they “fairly and
adequately submitted the issues and applicable law to the jury.” Arban v. W. Publ’g Corp.,
345 F.3d 390, 404 (6th Cir. 2003). A post-trial “inquiry into jury instructions is limited to
whether, taken as a whole, the instructions adequately inform the jury of the relevant
considerations and provide the jury with a sound basis in law with which to reach a
conclusion.” Pivnick v. White, Getgey & Meyer Co., 552 F.3d 479, 488 (6th Cir. 2009).
Erroneous jury instructions do not warrant granting the defendant a new trial if the
instructions constitute harmless error. Kendel, 512 F. App’x at 479.

20

When a court refuses to give a proposed jury instruction, that refusal warrants
reversal if: “(1) the omitted instruction is a correct statement of the law, (2) the instruction
is not substantially covered by other delivered charges, and (3) the failure to give the
instruction impairs the requesting party’s theory of the case.” Decker v. GE Healthcare
Inc., 770 F.3d 378, 396 (6th Cir. 2014).
Defendant contends that the Court erroneously instructed the jury by: (1) charging
the jury with a termination for disability related conduct claim; (2) failing to provide a
business judgment rule instruction; and (3) failing to provide an honest belief instruction.
The Court will address these arguments in turn.
1.

Termination for Disability Related Conduct

Defendant asserts that the Court erroneously instructed the jury that it could find
ADA liability on a discriminatory discharge claim if it concluded that defendant terminated
Atkins for disability related misconduct, without proof of anti-disability animus or pretext.
In its charge to the jury, the Court used the McDonnell-Douglas Corp. v. Green, 411
U.S. 792 (1973), framework as the basis for its instructions on plaintiffs’ discriminatory
discharge claim [Doc. 156 pp. 192–94]. As such, the Court instructed the jury that if
plaintiffs prove each element of their prima facie case, the burden then shifts to defendant
to “proffer a legitimate nondiscriminatory reason for the adverse employment action” [Id.
at 192]. The Court further stated the following:
Defendant has argued that it terminated M[s.] Atkins for a legitimate
nondiscriminatory reason; that is, violating its employee purchase policy.
Under the ADA, if an employee committed a conduct or rule violation
because of her disability, an employer may only discipline the employee if
21

the rule she violated is job-related and enforcing that rule . . . is consistent
with business necessity.
Whether enforcing a conduct rule is job-related and consistent with business
necessity may rest on several factors, including the manifestation or
symptom of a disability affecting an employee’s conduct, the frequency of
occurrences, the nature of the job, the specific conduct at issue, and the
working environment.
If you find defendant terminated M[s.] Atkins for conduct that was caused
by her disability and that defendant’s enforcement of the conduct rule against
M[s.] Atkins was not job-related and consistent with the business necessity,
that reason is not a legitimate nondiscriminatory reason for termination, and
you must find for plaintiffs on the discriminatory discharge claim [Id. at 193–
94].
Defendant argues that this instruction is contrary to the law governing ADA claims, which
requires an improper state of mind in order to find liability for discriminatory discharge
under the ADA.
Although defendant contends that “the ultimate question in analyzing disparate
treatment claims . . . is whether a challenged employment action was motivated by animus
against a protected characteristic” [Doc. 172 p. 20], the Sixth Circuit has provided that the
ultimate question is whether discrimination is a “but-for” cause of the employer’s adverse
action. Lewis v. Humboldt Acquisition Corp., Inc., 681 F.3d 312, 321 (6th Cir. 2012) (en
banc). While the typical disparate treatment claim involves evidence of discriminatory
intent, such proof is not determinative in all cases.
For example, in Yarberry v. Gregg Appliances, Inc., 625 F. App’x 729 (6th Cir.
2015), the Sixth Circuit analyzed whether the enforcement of a conduct rule was “jobrelated and consistent with business necessity” in determining whether an employer had
22

“legitimate, nondiscriminatory reasons” for terminating an employee. Id. at 739–40. In
that case, the Sixth Circuit considered whether a bi-polar employee’s violation of company
policies concerning safety and security, as well as general behavior standards, during a
manic episode, constituted legitimate, nondiscriminatory reasons for his termination. Id.
The court looked at the manifestation or symptom of a disability affecting the employee’s
conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue,
and the working environment, and the court ultimately determined that the employer had
terminated the bi-polar employee for legitimate, nondiscriminatory reasons. Id. Only after
making this finding did the court turn to the pretext analysis. Id. at 739–41. Had the Sixth
Circuit found in Yarberry that the bi-polar employee’s violation of the policies did not
constitute legitimate, nondiscriminatory reasons for termination, the employer would have
been subject to ADA liability without a finding of animus or pretext.
The Court also finds the case Hildebrand v. Dollar General Corp., No. 3:11-cv554, 2013 WL 3761291 (M.D. Tenn. July 16, 2013), instructive. In Hildebrand, the court
considered whether summary judgment was appropriate on a discriminatory discharge
claim where the plaintiff alleged that her termination resulted from the defendant’s failure
to accommodate her disability. Id. at *6–8. The court found that the case hinged on
whether the defendant’s failure to accommodate the plaintiff’s disability “was the ‘but for’
cause of the performance deficiencies for which she was terminated.” Id. at *6. In doing
so, the court did not mention discriminatory animus.

23

Defendant points out that the court in Hildebrand referred to the defendant’s
potential animus by stating that the plaintiff’s “supervisors rebuffed [the plaintiff’s]
requests for an accommodation and even demeaned her for asking for one.” Id. at *7.
However, the court only mentioned those actions to explain why it was “not obvious what
actually would have happened if [the defendant] had engaged in the requisite interactive
process.” Id. The court did not posit that the supervisors’ actions were evidence of
discriminatory animus that would preclude summary judgment. Instead, the court denied
summary judgment because there was a question of fact as to whether the plaintiff “would
or would not have performed the essential functions of her job with an accommodation.”
Id. at *7–8.
Upon review of the parties’ arguments and the relevant law, the Court has
determined that a defendant does not need to act with an improper state of mind in order to
be liable for discriminatory discharge. As such, the Court’s instructions allowing the jury
to find defendant liable for discriminatory discharge without finding that defendant acted
with discriminatory animus is not erroneous and does not provide a basis for granting
defendant’s motion for a new trial.
2.

Business-Judgment Rule Instruction

Defendant also contends that the Court committed error in omitting an instruction on
the business-judgment rule in the jury charge. The Sixth Circuit has provided, however,
that it “has never adopted a ‘business-judgment rule’ which requires [it] to defer to the
employer’s ‘reasonable business judgment’” in discrimination cases. See White v. Baxter
24

Healthcare Corp., 533 F.3d 381, 395 n.6 (6th Cir. 2008) (stating in the context of a Title
VII claim). Indeed, the issue in most discrimination cases is “whether the employer’s
adverse employment action resulted from an objectively unreasonable business judgment.”
Id. As such, it is inappropriate to “unquestionably accept the employer’s own self-serving
claim that the decision resulted from an exercise of ‘reasonable business judgment.’” Id.
Instead, the jury should determine whether a plaintiff has presented enough evidence “that
the employer made an unlawful business decision.” Id.
As the Sixth Circuit has provided that the business-judgment rule does not apply to
discrimination cases, the Court’s decision to omit an instruction explaining the rule was
not in error and does not provide a basis for a new trial.
3.

Honest Belief Instruction

Defendant argues that the Court erred by refusing to give the jury an honest belief
instruction. The honest belief rule “provides that as long as the employer honestly believed
the reason it gave for its employment action, an employee is not able to establish pretext
even if the employer’s reason is ultimately found to be mistaken.” Ferrari v. Ford Motor
Co., 826 F.3d 885, 895 (6th Cir. 2016). Defendant contends that the Court should have
given the jury an instruction explaining this rule because defendant had an honest belief at
the time of Atkins’s termination and subsequent appeal that Atkins had engaged in several
violations of the Employee Purchase Policy, including consuming Little Debbie cakes, for
which Atkins offered no excuse.

25

The Court chose not to include an honest belief instruction because such an
instruction may have confused the jury given the Court’s instruction that the jury should
consider whether defendant’s decision to enforce a conduct rule was job-related and
consistent with business necessity. See McDole v. City of Saginaw, 471 F. App’x 464, 477
(6th Cir. 2012) (finding that a district court has discretion to omit an instruction to prevent
jury confusion). In addition, the Court finds that the instructions given substantially
covered the honest belief rule. When discussing causation, the Court instructed the jury as
follows:
Plaintiffs must prove the defendant would not have terminated M[s.] Atkins
but for her disability. Plaintiffs do not have to prove that M[s.] Atkins’
disability was the sole reason defendant terminated her. Plaintiffs must
prove, however, that defendant terminated Ms. Atkins because of her
disability or as a result of defendant’s failure to provide a reasonable
accommodation to Ms. Atkins [Doc. 156 p. 195].
If the jury believed that Atkins’s termination hinged on defendant’s honest belief
that Atkins had consumed Little Debbie cakes, then Atkins’s disability would not have
been a but-for cause of her termination.

Accordingly, including the honest belief

instruction would not have affected the outcome of the case because the jury charge
substantially covered the effect of the rule. Similarly, the Court finds that omitting the
honest belief instruction did not “impair[] [defendant’s] theory of the case” because
defendant could have argued that its honest belief underlying Atkins’s termination was not
discriminatory. See Decker, 770 F.3d at 396.
In sum, the Court finds that its instructions to the jury do not warrant granting
defendant a new trial.
26

C.

Exclusion of Evidence

Defendant argues that the Court erred in excluding Beaver and Viefeld’s
handwritten statements. District courts have “[b]road discretion” to determine whether
evidence is admissible or not, “and those decisions will not be lightly overturned.” Nolan
v. Memphis City Schs., 589 F.3d 257, 264–65 (6th Cir. 2009). Furthermore, even if an
evidentiary ruling is erroneous, a new trial is not warranted if the ruling constitutes
harmless error. Id.
Defendant argues that the Court’s exclusion of Beaver and Viefeld’s handwritten
statements unfairly prejudiced defendant. In support of this argument, defendant submits
that plaintiffs suggested to the jury that Irwin “singled Atkins out” by pressuring her to
“include assertions in her handwritten statement to set her up for termination” [Doc. 172
p. 28]. Defendant argues that Beaver and Viefeld’s handwritten statements would have
rebutted this implied assertion.
Even assuming the Court’s exclusion of this evidence was in error, defendant has
not shown that the Court’s exclusion of these handwritten statements amounts to “more
than harmless error.” Kendel, 512 F. App’x at 479. Irwin testified that Atkins’s statement
merely reflected what he and Atkins had discussed [Doc. 155 p. 622]. Under defendant’s
theory, admission of the Beaver and Viefeld statements would have provided additional
rebuttal evidence to the same argument that Irwin rebutted with his testimony. There is no
indication that exclusion of additional rebuttal evidence in the form of the Beaver and
Viefeld statements caused any harm to defendant, as plaintiff’s argument in question was
27

rebutted by live witness testimony. In light of this, even if the statements were erroneously
excluded, the Court’s exclusion of these statements does not warrant a new trial.
D.

Excessive Damages

Defendant also argues it is entitled to a new trial because the jury awarded excessive
damages. When a jury award is “so exaggerated as to indicate bias, passion, prejudice,
corruption, or other improper motive, remitter is inadequate and the only proper remedy is
a new trial.” Wells v. Dallas Indep. Sch. Dist., 793 F.2d 679, 684 (5th Cir. 1986) (internal
quotation marks and citation omitted). According to defendant, the jury award was
unsupported by the evidence and, therefore, it must have been driven by the jury’s passion
and sympathy. Consequently, defendant argues that remitter is inadequate and the proper
remedy for the excessive damages is for the Court to grant a new trial.
Defendant argues that the only evidence of Atkins’s emotional distress was her
testimony that she had been depressed, helpless, and humiliated following her termination.
Defendant further asserts that plaintiffs did not offer any evidence that Atkins suffered any
serious or long-lasting injury, pain, suffering, or humiliation because of her discharge.
Upon review of the evidence, however, Atkins testified that: (1) she was out of work
for five or six months; (2) her termination forced her to begin working in a new field; (3)
that her new job required her to work more hours; (4) she missed the fast-paced
environment she liked about working for defendant, which led to feelings of depression;
(5) being accused of theft “went to [her] core” and affected her personal pride; (6) being
accused of theft caused her anxiety when applying for subsequent employment; and (7) her
28

termination caused her to have health issues [See Doc. 154 pp. 39–54]. In light of this
evidence, and as further discussed below, Court finds that the jury’s award of $250,000 in
compensatory damages was not so excessive as to warrant a new trial.
V.

Motion to Reduce the Jury Award
In the alternative to its motion for a new trial based on excessive damages, defendant

moves the Court to reduce the jury award. A “district court should reduce a jury’s verdict
only when the judgment ‘clearly exceeds’ the maximum amount of compensatory damages
a jury could reasonably award.” Stayton v. Ohio Dept. of Youth Servs., 206 F.3d 669, 679
(6th Cir. 2000). The Court “may reduce a jury award only if it is (1) beyond the range
supportable by proof, (2) so excessive as to shock the conscience, or (3) the result of a
mistake.” Id.
Defendant contends that the Court should reduce the award because it is beyond the
range supportable by Atkins’s testimony and because the award shocks the conscious. The
Court notes that the jury award of $250,000 is below the statutory cap for non-economic
damages in employment discrimination cases. 42 U.S.C. § 1981a. In addition, while
defendant points out that Atkins’s damages were premised on her own testimony, “[a]
plaintiff’s own testimony, along with the circumstances of a particular case, can suffice to”
show that an employer’s actions caused the plaintiff emotional distress. Turic v. Holland
Hosp., Inc., 85 F.3d 1211, 1215 (6th Cir. 1996). In the previous section, the Court detailed
portions of Atkins’s testimony describing the extent of her damages, and the Court notes
that defendant did not rebut this testimony.
29

While defendant cites a number of cases ordering or affirming remittiturs of
compensatory damages [Doc. 172 pp. 29–30], and several cases where much lower awards
for compensatory damages were upheld [Id. at 30], the Sixth Circuit has cautioned against
courts attempting to reconcile widely varied past awards for analogous injuries. Fischer v.
UPS, Inc., 390 F. App’x 465, 472 (6th Cir. 2010) (upholding the district court’s denial of
the defendant’s remittitur motion when the award was $650,000 for emotional distress
based solely on the plaintiff’s own testimony).
Accordingly, in light of the evidence presented at trial, the Court does not find that
the jury award “‘clearly exceeds’ the maximum amount of compensatory damages a jury
could reasonably award.” See Stayton, 206 F.3d at 679. The Court will, therefore, deny
defendant’s motion to decrease the jury award.
VI.

Motion to Disregard Issues Raised for the First Time in the EEOC’s Reply, or
in the Alternative, for Leave to File a Sur-Reply
Before addressing the merits of the motion for a preliminary injunction, the Court

notes that defendant filed a Motion to Disregard Issues Raised for the First Time in EEOC’s
Reply, or in the Alternative, for Leave to File a Sur-Reply [Doc. 200]. In this motion,
defendant asks the Court to disregard portions of the EEOC’s reply brief [Doc. 199] filed
in support of its Motion for Permanent Injunction [Doc. 161] because the reply raises new
issues and arguments that the EEOC did not raise in its opening brief. In the alternative,
defendant ask that the Court consider its proposed sur-reply [Doc. 200-1], which addresses
the new issues raised in the EEOC’s reply. The Court finds that the EEOC’s reply brief
will aid the Court in its determination on the injunction issue. As such, the Court will
30

consider the EEOC’s reply brief. Furthermore, the Court will also consider defendant’s
proposed sur-reply. Consequently, the Court finds that, to the extent that the EEOC raised
issues for the first time in its reply brief, defendant was not prejudiced because it provided
a substantive response to those arguments. As such, the Court will grant defendant’s
Motion to Disregard Issues Raised for the First Time in EEOC’s Reply, or in the
Alternative, for Leave to File a Sur-Reply [Doc. 200], to the extent that the Court considers
defendant’s proposed sur-reply in ruling on the EEOC’s motion for injunctive relief.
VII.

Motion for a Permanent Injunction
The EEOC moves the Court to amend the judgment pursuant to Federal Rule of

Civil Procedure 59(e) to include injunctive relief. According to the EEOC, it seeks a
permanent injunction to alleviate the effects of defendant’s past discriminatory practices
and to prevent similar violations from occurring in the future. The EEOC submitted a
proposed injunctive order to the Court [Doc. 199-4].4
The ADA incorporates remedies available under Title VII of the Civil Rights Act
of 1964, which include injunctive relief. 42 U.S.C. § 12117(a) (incorporating remedies
available under Title VII); id. § 2000e-5(g)(1) (remedies available under Title VII).
Specifically, the statute provides that upon a finding that a defendant has “intentionally
engag[ed] in an unlawful employment practice charged in the complaint, the court may
enjoin the [defendant] from engaging in such unlawful employment practice, and order

4

The EEOC initially submitted a different proposed order [Doc. 162-4], but it amended
the proposed order when it filed its reply brief.
31

such affirmative action as may be appropriate, which may include . . . equitable relief as
the court deems appropriate.” Id.
Although injunctive relief is available, courts are “not automatically required to
grant injunctive relief” when a jury determines that an employer violated the law. Prentice
v. Am. Standard, Inc., Nos. 91-6126, 91-6127, 1992 WL 172662, at *2 (6th Cir. July 23,
1992). Rather, after a plaintiff establishes that the defendant is liable under the ADA, and
the plaintiff requests injunctive relief, the defendant has the burden to produce evidence
“tending to show that it has taken, and will continue to take, effective measures to prevent
a recurrence of the actionable conduct.” Id. However, the plaintiff bears the “ultimate
burden of proving that injunctive relief is necessary,” and may satisfy this burden by
“persuad[ing] the trial judge that there [is] a cognizable danger that [the] defendant [will]
not take effective steps to prevent the conduct from recurring.” Id.
If the EEOC satisfies this burden, the Court “has not merely the power, but the duty
to render a decree which will so far as possible eliminate the discriminatory effects of the
past as well as bar like discriminations in the future.” Albemarle Paper Co. v. Moody, 422
U.S. 405, 418 (1975). Furthermore, the Court “possesses broad discretion to craft an
injunction that will ensure the employer’s compliance with the law.” EEOC v. Frank’s
Nursery & Crafts, Inc., 177 F.3d 448, 468 (6th Cir. 1999).
Defendant objects to any form of injunctive relief as it argues such relief is
unnecessary because the facts demonstrate that it is unlikely there will be recurrent ADA
violations. In addition, defendant asserts that the specific terms of the EEOC’s requested
32

injunction are overbroad. The Court will first address whether any form of injunctive relief
is necessary.
A.

Whether the Injunction is Necessary

Defendant asserts that injunctive relief is unnecessary because the facts presented at
trial demonstrate it is unlikely defendant will engage in recurrent violations of the ADA.
The EEOC argues injunctive relief is necessary because the facts presented at trial show
that defendant’s employees lack a general understanding of the ADA and, consequently,
recurrent violations are likely.
In order for a plaintiff to satisfy its burden of showing that injunctive relief is
“necessary,” it must show a “cognizable danger that [the] defendant [will] not take
effective steps to prevent the conduct from recurring.” Prentice, 1992 WL 172662, at *2.
This burden requires “something more than a mere possibility” of a recurrent violation.
Kulling v. Grinders for Indus., Inc., 185 F. Supp. 2d 800, 822 (E.D. Mich. 2002) (citing
EEOC v. Gen. Lines, Inc., 865 F.2d 1555, 1565 (10th Cir. 1989)).
The Court notes that when the EEOC brings an enforcement action, “it sues both
for the benefit of specific individuals and the public interest,” and it may obtain “general
injunctive relief” even where it “does not allege a pattern or policy of discrimination.”
Frank’s Nursery, 177 F.3d at 458, 467–68. Because the Court must make its determination
based on the likelihood of an “employer’s potential future actions, the EEOC need not
prove that the employer previously engaged in widespread discrimination, and ‘injunctive
relief is appropriate even where the [EEOC] has produced no evidence of discrimination
33

going beyond the particular claimant’s case.’” EEOC v. AutoZone, Inc., 707 F.3d 824, 842
(7th Cir. 2013) (alteration in original) (quoting EEOC v. Ilona of Hungary, Inc., 108 F.3d
1569, 1578 (7th Cir. 1997)). Indeed, the EEOC may seek injunctive relief “upon proof
even of just one instance of discrimination.” Frank’s Nursery, 177 F.3d at 468.
Defendant asserts that this case presents an isolated incident where one former store
manager, Wanda Shown, mishandled Atkins’s request for an accommodation. The EEOC
argues, however, that it seeks relief to address the conduct of all the decision makers
involved in this case. Specifically, the EEOC contends that it requests injunctive relief due
to: (1) the failure of each of defendant’s decision makers involved in this case to properly
address Atkins’s requested accommodation; (2) the decision to terminate Atkins; (3) the
decision makers’ failures to properly address Atkins’s termination; and (4) defendant’s
failure to adequately inform and train its employees of their rights under the ADA.
While defendant asserts that this case centers on Shown’s failure to accommodate
Atkins, defendant does not fully acknowledge the evidence that several of defendant’s
other employees played a role in the events leading to Atkins’s termination and the
subsequent ratification of that termination. These individuals include Scott Strange, Jeri
West, Matthew Irwin, and Heather Robinson.
In particular, the Court notes that Shown did not make the decision to terminate
Atkins. Indeed, there is no evidence in the record that Shown recommended Atkins’s
termination or played any role in the decision to do so. Rather, Scott Strange, a current
District Manager for defendant, terminated Atkins [Doc. 154 pp. 158–59]. At the time he
34

made that decision, Strange was aware that Atkins was diabetic and that she wanted
“special permission to have her juice at the register” [Id. at 165].
In addition, Jeri West upheld the decision to terminate Atkins. West has worked for
defendant for thirteen years and currently works as an Employee Relations Manager [Doc.
155 pp. 117–18]. At the time of Atkins’s termination, West worked as defendant’s
Employment Practices and Dispute Resolution Manager [Id. at 118]. Both West’s current
and former positions require her to make decisions on whether to uphold or overturn
terminations [Id. at 118, 121]. When Atkins called West regarding her termination, Atkins
explained that she drank defendant’s juice prior to purchasing it because of her diabetes
[Id. at 168]. According to Atkins, she informed West that she had asked Wanda Shown if
she could keep juice at the register [Doc. 154 pp. 40–41]. Atkins also told West that she
believed Shown was unaware that the ADA requires employers to provide reasonable
accommodations [Doc. 155 p. 155]. Despite this, West did not speak to anyone else at the
company, including Shown, before deciding to uphold Atkins’s termination [Id. at 174].
Matthew Irwin, who has worked for defendant as a Regional Loss Prevention
Manager for six years, recommended Atkins’s termination [Doc. 153 pp. 46, 85–86].
When Irwin interviewed Atkins, Atkins stated that she had previously asked her manager
for an accommodation [Id. at 70–73]. Irwin advised Atkins that she could “request special
permission to keep her own orange juice at the register,” and despite Atkins’s indication
that she wanted to request such permission, Irwin recommended that Strange immediately
terminate Atkins [Id. at 85–86].
35

Heather Robertson worked for defendant for over seven years in various roles in
human resources (“HR”) and her final position was Regional HR Manager [Doc. 153 p. 9].
Atkins contacted Robertson about her termination [Doc. 154 p. 40]. Atkins testified at trial
that Robertson told Atkins that she would contact Atkins after speaking with her boss, but
Atkins never received a call back from Robertson [Id.]. Robertson thought that Atkins’s
termination was appropriate [Doc. 153 p. 40]. Additionally, she received an email from
Jeri West in which West explained that Atkins was disputing her termination [Id. at 41–
42]. In the email, West also provided that Wanda Shown did not know the reasonable
accommodation requirements and she requested that Shown receive training on the topic
[Id. at 42]. Robertson does not recall following up on this request with Strange or Shown
[Id. at 42–43].
The jury determined not only that defendant denied Atkins’s right to a reasonable
accommodation, but also that her discharge was discriminatory. There is evidence in the
record that several of defendant’s employees involved in the decision to terminate Atkins
knew that she had requested an accommodation from Shown, yet that knowledge did not
affect their decisions regarding Atkins’s termination.
Defendant argues that this case is similar to Spencer v. Gen. Elec. Co., 894 F.2d 651
(4th Cir. 1990), where the Fourth Circuit upheld a district court’s decision not to award
injunctive relief because the “case present[ed] an isolated incident of one supervisor run
amok” rather than “systematic company-wide discrimination.” Id. at 660. In Spencer, the
plaintiff’s claims arose from her allegations of sexual harassment by her supervisor. Id. at
36

654. The district court found in favor of the plaintiff on her hostile work environment
claim under Title VII, and the plaintiff moved for injunctive relief against the employer.
Id. at 654–55. The district court determined that injunctive relief was not appropriate
because there was no evidence “that employees elsewhere in the company were involved.”
Spencer v. Gen. Elec. Co., 703 F. Supp. 466, 470 (E.D. Va. 1989). The Fourth Circuit
upheld this decision in part because, in response to the events giving rise to the lawsuit, the
employer had “gotten rid of the offending supervisor, transferred plaintiff to a job of equal
grade, and instituted an extensive company-wide anti-sexual harassment policy.” Spencer,
894 F.2d at 660.
In contrast, here, several individuals were involved in the decision to terminate
Atkins. Furthermore, unlike in Spencer, defendant has not presented any evidence that it
has taken any additional steps to prevent future ADA violations. In fact, West, who
defendant still employs, does not know if defendant has reviewed its policies and training
regarding the ADA and reasonable accommodations [Doc. 155 pp. 195–96]. Although
Shown no longer works for defendant, the Court notes her cessation of employment was
unrelated to her failure to reasonably accommodate Atkins’s disability [Doc. 154 pp. 237–
38]. Indeed, there is no evidence in the record that any manager discussed Atkins’s
circumstances with Shown, that Shown was reprimanded in any way for her actions, or that
she received any training on the ADA after Atkins’s termination.
While defendant asserts that “there is no evidence that [its] nondiscrimination
policy, its ADA accommodation policy, its processes for requiring employees to review
37

and sign off on each policy, or its training programs are insufficient to maintain compliance
with the ADA,” the Court finds that there is significant evidence to the contrary [Doc. 194
p. 2]. Despite defendant’s policies and procedures, four management-level individuals—
Strange, West, Irwin, and Robertson—all agreed that Atkins’s termination was justified.
The jury, however, determined that Atkins’s termination was unlawful under the ADA. In
addition, while defendant requires employees to review and sign off on its ADA policies,
several employees testified that they had no knowledge of such policies [Doc. 151 pp. 73–
74; Doc. 155 pp. 214, 217].
The Court also notes that Strange, West, and Irwin still work for defendant, and this
fact increases the likelihood that ADA violations could recur. See Bruso v. United Airlines,
Inc., 239 F.3d 848, 864 (7th Cir. 2001) (finding that the employer’s current procedures are
not necessarily effective when management “felt free to ignore [the] policies in the past”
and “there is no reason to believe that those same members of management will abide by
them in the future”); Ilona of Hungary, 108 F.3d at 1579 (“[I]njunctive relief is justified .
. . where the individuals who were found to have discriminated remain the defendant’s
primary decision-makers.”). Furthermore, it is also telling that defendant has not admitted
any wrongdoing in this case. See EEOC v. Exel, Inc., No. 1:10-CV-3132, 2017 WL
12538889, at *2 (N.D. Ga. Mar. 13, 2014) (ordering injunctive relief in part because the
employer had not admitted to any wrongdoing, which contributed to the likelihood that
Title VII violations would recur).

38

In determining whether injunctive relief is necessary, the Court also considers the
testimony of Donna Kestler, who worked for defendant as a stocker and later as an assistant
manager [Doc. 155 pp. 214, 217]. Kestler testified that due to a health condition, she asked
Scott Strange if she could use a buggy to move boxes [Id. at 219]. Strange denied this
request and, as a result of this denial, Kestler quit her job [Id. at 220]. Strange did not tell
Kestler to contact HR or any other personnel [Id. at 221].
Defendant argues that Kestler’s testimony is insufficient to establish an ADA
violation and, therefore, it does not show that defendant has repeatedly violated the ADA.
While the Court agrees that Kestler’s testimony is not conclusive evidence that defendant
has engaged in multiple ADA violations, her statements provide some evidence as to the
likelihood of ADA violations. Furthermore, the Court notes that the EEOC may seek
injunctive relief “upon proof even of just one instance of discrimination,” and thus multiple
ADA violations are not a prerequisite to injunctive relief. Frank’s Nursery, 177 F.3d at
468.
Accordingly, the Court finds that the following factors weigh in favor of ordering
injunctive relief in this matter: (1) the number of defendant’s personnel involved in this
case; (2) the evidence that defendant’s employees do not know defendant’s ADA policies;
(3) defendant’s refusal to admit wrongdoing; (4) the lack of evidence of any action taken
against Shown, such as through training or reprimanding; (5) the lack of evidence that
defendant has implemented any additional policies or procedures to prevent future ADA
violations; (6) the evidence that Kestler’s circumstances may have constituted an ADA
39

violation; and (7) the fact that Strange and West still work for defendant. As such, the
Court finds that the EEOC has met its burden of showing that injunctive relief is necessary
in this case by showing “a cognizable danger that [the] defendant [will] not take effective
steps to prevent the conduct from recurring.” See Prentice, 1992 WL 172662, at *2. In
doing so, the Court notes that defendant has not presented any evidence that it has taken
steps to prevent future ADA violations. Rather, defendant points to its current procedures
and insists they are sufficient, despite the failure of such procedures to prevent the
circumstances giving rise to this action. For these reasons, the Court finds that the EEOC
is entitled to injunctive relief.5

5

In arguing that injunctive relief is not appropriate, defendant asserts that this case is
similar to EEOC v. New Breed Logistics, Inc., No. 10-2696, 2013 WL 12043550 (W.D. Tenn. Dec.
20, 2013), in which the court determined that a similar request for injunctive relief by the EEOC
was “overbroad and generally unnecessary.” Id. at *1. In New Breed, the court found that the
EEOC had not met its burden of showing a “cognizable danger that New Breed will not take steps
to prevent the unlawful conduct.” Id. Defendant contends that the instant case is similar to New
Breed because, like New Breed, this case “involv[es] a single punitive ‘bad actor’ and no evidence
of other incidents of discrimination” [Doc. 194 p. 10]. The Court notes, however, that New Breed
involved a “sole employee charged with sexual harassment” who “was terminated almost
immediately.” Id. While other New Breed employees were involved in the decision to terminate
the plaintiffs, the court noted that the employee who engaged in sexual harassment was “at the
heart of the retaliation claims.” Id. The court also noted that the defendant “ha[d] demonstrated
that it has a sexual harassment policy in place. Employees are required to attend an orientation,
which includes an overview of New Breed’s anti-harassment and anti-retaliation policy.” Id. at
*2. In contrast, here, there is no evidence that defendant terminated or even reprimanded Shown,
or that defendant’s employees who made the determination to terminate Atkins and to ratify that
termination did so without Shown’s input or direction, and defendant has not provided evidence
that it requires its employees to attend an orientation providing an overview of its discrimination
policies. As such, the Court finds that this case is distinguishable from New Breed.
40

B.

Specific Terms of the Requested Injunction

Having found that the EEOC is generally entitled to injunctive relief, the Court will
now consider whether the specific terms of the EEOC’s requested injunction are justified.
“The proper scope of an injunction is to enjoin conduct which has been found to have been
pursued or is related to the proven unlawful conduct.” EEOC v. Wilson Metal Casket Co.,
24 F.3d 836, 842 (6th Cir. 1994). The Court “possesses broad discretion to craft an
injunction that will ensure the employer’s compliance with the law.” Frank’s Nursery, 177
F.3d at 468. However, “this discretion is not unlimited,” and “[p]rovisions of an injunction
may be set aside if they are broader than necessary to remedy the underlying wrong.”
EEOC v. HBE Corp., 135 F.3d 543, 557 (8th Cir. 1998).
The Court notes, however, that when the EEOC files suit, it “pursues an interest
broader than the one private [discrimination] litigant pursues.” Frank’s Nursery, 177 F.3d
at 462. “[T]he EEOC possess[es] an independent authority to vindicate the public interest
by suing in its own name.” Id. at 467.
Defendant asserts that the injunctive relief the EEOC seeks is overbroad and
untethered to the jury’s determinations of liability at trial. The Court will first address the
EEOC’s proposed geographic scope of the injunction, and will then address the other
proposed provisions as laid out in the EEOC’s proposed injunction order.
1.

Geographic Scope

Several paragraphs of the EEOC’s proposed injunction reference Region 82 and the
Goodlettsville, Tennessee corporate office. Defendant submits that Region 82 contains
41

195 stores with 1,547 employees and the corporate office has another 1,018 employees.
Defendant asserts that this proposed geographic scope is overbroad and that the Court
should limit the scope of any injunctive relief to the store where Atkins worked—Store
#3988 in Maryville, Tennessee.
The EEOC argues that its proposed geographic scope “is appropriate and tailored to
the scope of authority and influence of each [defendant] official involved in the decision
to deny” Atkins her rights under the ADA [Doc. 199 p. 5]. The EEOC notes that Scott
Strange, defendant’s District Manager who terminated Atkins, is responsible for seventeen
or eighteen stores in East Tennessee and at least 120 employees [Doc. 154 pp. 158–89].
Heather Robertson, defendant’s former Regional HR Manager who did not address
Atkins’s concerns about her termination or Shown’s lack of knowledge of ADA
requirements, supported three regions, which included 600 stores and thousands of
employees [Doc. 155 pp. 10, 37]. Matthew Irwin, defendant’s Regional Loss Prevention
Manager who recommended Atkins’s termination, has oversight over Region 82, which
includes over 200 stores [Doc. 155 pp. 46, 80]. Lastly, Jeri West, defendant’s Employee
Relations Manager who did not overturn Atkins’s termination, shared responsibility with
another employee for handling employment-related disputes for the entire corporation
[Doc. 155 pp. 181–82]. West currently works in defendant’s corporate office [Doc. 153 p.
117].

Based on this evidence, the EEOC contends that it has presented evidence

demonstrating that this case reaches beyond Maryville, Tennessee. The EEOC also notes

42

that its proposed geographic scope is narrower than defendant’s nationwide operation,
which consists of over 13,000 stores and 100,000 employees.
Defendant argues that the EEOC’s proposed geographic scope is overbroad because
there was no proof at trial of any other acts of disability discrimination at stores other the
Maryville store or at the corporate headquarters. Furthermore, defendant asserts that the
geographic scope is untethered to the harm plaintiffs’ asserted at trial. According to
defendant, “[t]he record shows that this was a single incident of a single Store Manager at
a single store in Maryville, Tennessee allegedly ‘dropping the ball’ on a single
accommodation request” [Doc. 194 p. 15].

Accordingly, defendant asserts that the

injunction should not apply beyond the store in Maryville.
The Court has already determined that plaintiffs presented proof that West, Irwin,
Strange, and Robertson, in addition to Shown, each played a part in defendant’s
discriminatory conduct. While defendant contends that there is no evidence that ADA
violations will recur beyond the Maryville store, West, Irwin, Strange, and Robertson’s
duties were not confined to the Maryville store. Furthermore, defendant still employs
West, whose duties extend across defendant’s nationwide operation, as well as Strange and
Irwin. Rather than requesting that the injunction encompass the entire company, the EEOC
proposed that the geographic scope should include Region 82, over which Irwin has
oversight as a Regional Loss Manager, and defendant’s corporate office, where West
works.

43

The Court finds, therefore, that there is evidence to support implementing a
geographic scope for the injunction that goes beyond the Maryville store. The evidence
presented at trial indicates that several of defendant’s employees outside the Maryville
store either engaged in or ratified discriminatory conduct or otherwise was not
knowledgeable of the discriminatory nature of such conduct. Furthermore, West, Irwin,
Strange, and Robertson held or hold positions in which their actions affect defendant’s
employees across a large region.
The EEOC has the right to “seek[] injunctive relief to protect employees as a class
and to deter the employer from discrimination.” EEOC v. Goodyear Aerospace Corp., 813
F.2d 1539, 1543 (9th Cir. 1987). Here, the EEOC seeks to protect defendant’s employees
from recurrent ADA violations through an injunction with a geographic scope that is
tethered to the authority of the decision makers involved in this case. As the decision
makers’ actions affect employees far beyond the Maryville store, the Court finds that a
broader geographic scope is warranted. The Court further notes that the evidence at trial
indicated that defendant’s employees have a general lack of understanding as to the ADA’s
requirements. The decision makers, who have not admitted any wrongdoing in connection
with their actions against Atkins, should be further trained on the ADA in order to prevent
recurrent violations. As the EEOC has the right to seek an injunction in order to deter
defendant from engaging in further ADA violations, the Court finds that enjoining one
store, with less than twenty employees, would not serve to deter defendant from engaging
in disability discrimination.
44

In sum, the Court finds that a geographic scope which includes Region 82 and
defendant’s corporate office is tethered to the harm plaintiffs asserted at trial.
Consequently, the Court finds that the scope is necessary and is not overbroad. The Court
will, therefore, include the EEOC’s proposed geographic scope in the injunction order.
2.

Paragraph 1: Request Regarding Anti-Grazing Policy

Paragraph 1 of the EEOC’s proposed injunction provides:
Dolgencorp is enjoined from disciplining and/or discharging any employee
for violation of its anti-grazing policy without first assessing whether the
violation was due to the employee’s disability. If the anti-grazing policy
violation occurred because of an employee’s disability, Dolgencorp will not
discipline or discharge the employee. Instead, Dolgencorp will engage in the
interactive process with that employee and determine whether it can
reasonably accommodate the employee’s disability without undue hardship
to avoid any future violations of the anti-grazing policy [Doc. 199-4 p. 2].
The EEOC contends that this relief is necessary to ensure that defendant does not
unlawfully discharge or refuse to reasonably accommodate disabled employees in the
future.
Defendant asserts that the Court should not include this provision in the injunction
because it is contrary to law. It contends that this provision would “grant[] blanket,
prospective absolution to employees who violate [defendant’s] employee purchase policy
by grazing, irrespective of whether they requested an accommodation for an alleged
disability” [Doc. 200-1 p. 6]. Defendant submits that the ADA does not require employers
to excuse misconduct as an accommodation and employees are not entitled to “retroactive
leniency” for prior misconduct as a reasonable accommodation [Id. (citing DeWitt v. Sw.
Bell Tel. Co., 845 F.3d 1299 (10th Cir. 2017); Macy v. Hopkins Cty. Sch. Bd. of Educ., 484
45

F.3d 357 (6th Cir. 2007))]. Consequently, defendant asserts that the EEOC’s proposal in
paragraph 1 is “contrary to controlling law, and were it adopted, the Court would be
prohibiting employment actions expressly permitted under federal law” [Id.].
The Court notes that “[i]n fashioning relief against a party who has transgressed the
governing legal standard, a court of equity is free to proscribe activities that, standing alone,
would have been unassailable.” EEOC v. Wilson Metal Casket Co., 24 F.3d 836, 842 (6th
Cir. 1994). Accordingly, courts may enjoin lawful conduct which previously allowed
discrimination to occur. See id. (providing that courts may enjoin activities “related to the
proven unlawful conduct”).
Although the Court finds that it may enjoin lawful activity in fashioning an
appropriate injunction, the Court does not find that this particular injunctive relief is
necessary to prevent discrimination. While the EEOC has met its burden in showing a
“cognizable danger that [the] defendant [will] not take effective steps to prevent” recurring
disability discrimination, the EEOC has not shown a “cognizable danger” that such
discrimination would again arise in the context of the anti-grazing policy. See Prentice,
1992 WL 172662, at *2; see also EEOC v. DCP Midstream, L.P., 608 F. Supp. 2d 107,
111 (D. Maine 2009) (finding that the discrimination “arose in a constellation of
circumstances that may not recur” which justified “limit[ing] the relief, but not deny[ing]
an injunction altogether”).
While the EEOC contends that this provision is necessary to prevent defendant from
unlawfully discharging or refusing to reasonably accommodate disabled employees, the
46

Court finds that the provision in paragraph 1 is too specific to be necessary to prevent
defendant from, more broadly, engaging in ADA violations. Rather, the Court finds that
including several of the EEOC’s other proposed injunction provisions will be sufficient to
achieve the EEOC’s goal of deterring defendant from engaging in further violations.
3.

Paragraph 2: Letter to Employees From Defendant’s CEO

Paragraph 2 of the EEOC’s proposed injunction provides the following:
Dolgencorp must deliver a letter to all of its employees who work within
Region 82 and its Goodlettsville, Tennessee corporate office, advising them
of the verdict against Dolgencorp in this case on the claim of disability
discrimination, stating that Dolgencorp will not tolerate disability
discrimination and that Dolgencorp will take appropriate disciplinary action
against any manager, supervisor or employee who engages in disability
discrimination. The letter shall be printed on Dolgencorp’s letterhead and
shall be signed by Dolgencorp’s Chief Executive Officer [Doc. 199-4 pp. 2–
3].
The EEOC argues that this proposed relief is necessary because defendant’s employees in
Region 82 and defendant’s corporate office “are either unaware of their rights under the
ADA, denied their rights under the ADA, lack knowledge of how to apply the ADA, or
selectively chose when to apply the ADA” [Doc. 199 p. 7].
Defendant asserts that this this request is overbroad and unnecessary because the
EEOC has not produced evidence of disability discrimination prior to or since the incident
at issue. The Court notes, however, that the EEOC has produced evidence that several of
defendant’s employees, including management, non-management, store-level, field, and
corporate employees, within the geographic area, do not have a sufficient understanding of
the ADA. In addition, although the EEOC has not necessarily established that defendant
47

has engaged in other discriminatory acts, the EEOC has provided evidence of such acts
through the testimony of Donna Kestler.
Furthermore, while defendant contends that there has been extensive evidence of
defendant’s use and application of a lawful disability accommodation policy, the jury
determined that defendant’s employees acted in violation of the ADA by failing to provide
Atkins with a reasonable accommodation and subsequently discharging her. As such,
defendant’s current policy proved inadequate in that several of defendant’s employees were
either involved in the discriminatory conduct, ratified such conduct, or chose to ignore it.
Furthermore, several employees testified as to their general lack of knowledge regarding
the ADA and its requirements.
Overall, the evidence presented at trial revealed that defendant’s current policies
designed to prevent disability discrimination are inadequate in that defendant’s employees
either do not understand the policies or they are not aware of them. Consequently, the
Court finds that including a provision in the injunction that will ensure defendant’s
employees are notified of their rights under the ADA, and of defendant’s policies in place
to protect such rights, is necessary to prevent recurrent violations. However, rather than
mailing a letter with defendant’s CEO’s signature, the Court finds that training, as
suggested in paragraphs 5 and 6 of the EEOC’s proposed order, is an appropriate and
sufficient measure to ensure awareness of the ADA and defendant’s anti-discrimination
policies. See EEOC v. HBE Corp., 135 F.3d 543, 557 (8th Cir. 1998) (cautioning against

48

imposing conditions of an injunction which are broader than necessary to remedy the
underlying wrong).
4.

Paragraph 3: Posting
Discrimination Policy

of

Defendant’s

Notice

of

Non-

Paragraph 3 of the EEOC’s proposed injunction order provides:
Dolgencorp must post a copy of the remedial Notice of Non-Discrimination
Policy, hereto attached, in a conspicuous place on the premises of each store
within Region 82 and its Goodlettsville, Tennessee corporate office. The
notice must remain posted for the duration of the compliance period of this
Judgment of Injunctive Relief.
Defendant shall also continue to
conspicuously post the Notice (poster) required by Title VII, throughout the
compliance period of this Judgment of Injunctive Relief. Dolgencorp shall
ensure that the posting is placed in a location that supports unobstructed
viewing [Doc. 199-4 p. 3].
The EEOC asserts that posting its proposed Notice of Non-Discrimination Policy [Doc.
199-4 p. 8] is necessary in this case in order to raise employees’ awareness of their rights
under the ADA. As was the case with the EEOC’s request for the CEO letter, the Court
finds that this condition is unnecessary in light of the training requirement the Court will
include in the injunction.
In paragraph 3, the EEOC also includes a provision requiring defendant to
“conspicuously post” the Equal Employment Opportunity (“EEO”) poster, as Title VII
requires [Id.]. Defendant contends that this provision is unnecessary because it already
posts an EEO poster in all of its stores. While this may be true, defendant’s Assistant
Manager, Mary Jane Ray, testified at trial that the employee-rights posters located in the
break room at the Maryville store are mostly blocked from view [Doc. 151 p. 74–75]. She

49

stated that such posters have been blocked for as long as she has worked at the Maryville
store, even up until September 12, 2016, the date she testified at trial [Id.].
Despite this evidence, the Court assumes this memorandum and order, which draws
attention to Title VII’s requirements regarding the EEO poster, in combination with the
training requirement the Court will impose, will be sufficient to ensure defendant’s
compliance with the EEO poster requirements in the future. The Court therefore finds it
unnecessary to include any poster or notice related conditions in the injunction order.
5.

Paragraph 4: Neutral Job Reference

Paragraph 4 of the EEOC’s proposed injunction order provides the following:
If contacted for references by another potential employer, Dolgencorp shall
provide Linda K. Atkins a neutral job reference, stating only her dates of
employment and positions held [Doc. 199-4 p. 3].
The EEOC contends that this provision is necessary because Atkins intends to reenter the
workforce and will need a reference from defendant that does not mention her disability,
termination, charge of discrimination, or this lawsuit. In response, defendant asserts that
providing such references is its regular practice. The EEOC provides, however, that even
if defendant has that regular practice, “in a case such as this, where an employee has gone
as far to file a lawsuit against [defendant], one can never be too cautious” [Doc. 199 p. 8].
Here, unlike the obstructed posters, the EEOC has not provided any evidence that
defendant would not abide by its policy of responding to reference requests only with dates
of employment and positions held. Accordingly, the Court finds that requiring a neutral
job reference “is unnecessary and generally duplicative of procedures already in place.”
50

See EEOC v. New Prime, Inc., No. 6:11-CV-3367, 2016 WL 3033773, at *2 (W.D. Mo.
May 26, 2016) (declining to provide injunctive relief ordering the defendant to engage in
procedures similar to those it already had in place). As such, the Court will not include
this provision in the injunction order.
6.

Paragraphs 5 and 6: Training

Paragraphs 5 and 6 of the EEOC’s proposed injunction order require that: (1)
defendant provide training to all of its employees in Region 82 and its corporate office and
that the training “include an explanation of the requirements of the ADA, including the
interactive process, reasonable accommodations, and Dolgencorp’s anti-discrimination
policy”; and (2) that defendant “provide the EEOC with a copy of the training materials
and related documentation that it intends to use for the training” [Doc. 199-4 pp. 3–4]. The
EEOC asserts that this relief is necessary because the trial testimony suggests that
defendant is not adequately informing its employees on the ADA and defendant’s ADArelated policies and procedures. It argues that the lack of effective training is also
highlighted after considering the actions of Shown, Strange, Robertson, Irwin, and West,
which resulted in defendant’s failure to provide Atkins with a reasonable accommodation
and its discriminatory termination of her.
Defendant asserts that additional training is unnecessary because it already notifies
employees of its policies and its managers receive training on anti-discrimination and
accommodation. It further argues that there is no evidence that any additional training
would be more effective in preventing disability discrimination.
51

While defendant provided evidence that it notifies all employees of its EEO policies
as part of its onboarding program, it appears this notification is insufficient. As discussed
previously, the evidence at trial showed that several of defendant’s employees at various
levels of the corporate structure, including Shown, Strange, Robertson, Irwin, and West,
had either little understanding of the ADA itself or of their obligation to fulfill the ADA’s
requirements in their interactions with employees. Because of this, the EEOC’s proposed
training conditions will be included in the injunction order.
7.

Paragraph 7: Notice Regarding Paragraphs 1 and 2

Paragraph 7 of the EEOC’s proposed injunction requires that defendant certify with
the Court that it has sent the letters as provided in paragraph 2 and posted the Notice as
mentioned in paragraph 3 [Doc. 199-4 p. 7]. As the Court has declined to impose these
conditions, any such certification requirements are unnecessary.
8.

Paragraph 8: Monitoring

Paragraph 8 of the EEOC’s proposed injunction order requires that defendant report
to the EEOC once a year for the duration of the injunction certain details regarding: (1) all
requests for accommodation made by employees or applicants in Region 82 or corporate
headquarters; and (2) all employees discharged “for disability-related reasons” [Doc. 1994 pp. 4–5]. The EEOC contends that this monitoring provision is appropriate “because of
the complete failure of multiple managers at every level to adequately address Ms. Atkins’
simple request to keep orange juice at the register and her resulting termination” [Doc. 199

52

p. 9]. Defendant objects to the monitoring provision asserting, among other arguments,
that the request is speculative and unduly burdensome.
Although the jury determined that defendant engaged in unlawful discrimination,
the Court does not find that defendant’s conduct warrants imposing such monitoring
requirements. The Court finds that requiring defendant to provide additional training is
sufficient in light of the evidence presented at trial. See EEOC v. Autozone, Inc., No. CV
06-926, 2009 WL 3763682, at *4 (D. Ariz. Nov. 9, 2009) (finding monitoring and reporting
requirements unwarranted where there was “one instance of [unlawful discrimination] in a
company with 2,500 employees” and the court ordered the employer to conduct training
and to post notices). Accordingly, the Court will not include this monitoring provision in
the injunction order.
9.

Paragraph 9: Compliance

Paragraph 9 of the EEOC’s proposed injunctive order provides that “[t]he EEOC
may review compliance with this Permanent Injunction” by: (1) inspecting, without notice,
any of defendant’s stores within Region 82 for compliance with the posting provisions; and
(2) interviewing employees and examining documents related to the enforcement of the
injunction [Doc. 199-4 pp. 5–6]. The EEOC contends that this provision is necessary in
light of the testimony that defendant’s store-level employees were unaware of their rights
under the ADA and that the EEO posters were inaccessible. Defendant objects to this
request, arguing that it is overbroad and unnecessary in light of the evidence at trial.

53

In light of its decision to deny certain aspects of the EEOC’s requested injunction,
the Court finds that the EEOC’s request to inspect stores or interview employees to ensure
compliance is unnecessary. Rather, to ensure compliance with the training requirement,
the Court will order that defendant: (1) maintain attendance sheets for each training session
and forward a copy of the attendance sheets to the EEOC; and (2) submit proof to the
EEOC, via an affidavit by a person of knowledge, establishing the completion of training.
See DCP Midstream, L.P., 608 F. Supp. 2d at 113–14 (including such provisions in an
injunction against an employer as a remedy for discriminatory conduct).
10.

Paragraphs 10 and 12: Notice of Violation and the Court’s
Jurisdiction

In paragraph 10 of the EEOC’s proposed injunction order, it proposes that the EEOC
should notify defendant of any alleged violations of the injunction before exercising legal
remedies and that defendant shall have sixty days to investigate and respond to the
allegation [Doc. 199-4 p. 6; see Doc. 199 p. 11 (noting that the EEOC believes thirty days
is ample time to respond, but it will agree to sixty days)]. Paragraph 12 provides that the
Court should retain jurisdiction to monitor compliance with the injunction [Doc. 199-4 p.
7]. Defendant appears to have no objection to these provisions other than its general
argument that there is no basis for injunctive relief. As such, the Court will include these
provisions.
11.

Paragraph 11: Term of the Injunction

In paragraph 11 of the EEOC’s proposed injunction order provides that the duration
of the injunction should be three years [Doc. 199-4 p. 6; see Doc. 199 p. 12 (noting that
54

while a four-year term is justified, the EEOC is willing to reduce its request to three years).
The Court finds that a three-year term for the injunction is justified in this case.
VIII.

Motion for Attorney Fees and Costs
The Court referred Atkins’s Motion for Award of Attorneys’ Fees and Costs [Doc.

163], as well as her supplemental motions [Docs. 202, 211], to Magistrate Judge Guyton.
Judge Guyton filed an R&R [Doc. 214] in which he recommends that Atkins’s motions
[Docs. 163, 202, 211] be granted in part and denied in part and that the Court award Atkins
$445,322.25 in attorney’s fees and $1,676.95 in litigation expenses.
Defendant timely filed eight objections to the R&R [Doc. 217]. Plaintiff responded
in opposition to defendant’s objections [Doc. 218]. When ruling on objections to a
magistrate judge’s R&R, “the court must conduct a de novo review of portions of the R&R
to which a party objects unless the objections are frivolous, conclusive, or general. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Smith v. Detroit Fed'n of Teachers, Local 231,
829 F.2d 1370, 1373 (6th Cir. 1987); Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986).
Only specific objections are entitled to de novo review. Mira, 806 F.2d at 637 (“The parties
have the duty to pinpoint those portions of the magistrate's report that the district court
must specially consider.”). A general objection, or one that merely restates the arguments
previously presented, does not sufficiently identify alleged errors on the part of the
magistrate judge. Howard v. Sec’y of Health and Human Servs., 932 F.2d 505, 509 (6th
Cir. 1991). An objection that does nothing more than disagree with a magistrate judge's
findings, “without explaining the source of the error,” is not considered a valid objection.
55

Id. In fact, “[a] district court should only review for clear error where a party makes
perfunctory arguments to engage the district court in rehashing the same arguments set
forth in the original petition.” Brooks v. Invista (Koch Indus.), 528 F.Supp.2d 785, 788
(E.D. Tenn. 2007). Without specific objections, “[t]he functions of the district court are
effectively duplicated as both the magistrate and the district court perform identical tasks.
This duplication of time and effort wastes judicial resources rather than saving them, and
runs contrary to the purposes of the Magistrate's Act.” Id.
The Court finds several of defendant’s objections to be closely related. The Court
will thus forego addressing each of the eight objections under individual headings, and will
instead organize its analysis based on the substance of the objections. For the reasons
explained below, the Court will overrule each of defendant’s objections to the R&R and
accept the R&R in whole.
A.

Consideration of “degree of success” and “complexity of the case” in
determining whether the amount of attorneys’ fees requested is
reasonable (objections one and two)

Defendant objects to Judge Guyton’s consideration of plaintiff’s attorneys’ degree
of success and the complexity of the case in determining a reasonable hourly rate to use in
calculating the recommended total fee award. Defendant argues it is error to adjust the
hourly rate for the relevant market based on an attorney’s degree of success or the
complexity of the case. Specifically, Defendant argues degree of success should not be
considered when determining if enhancement of an hourly rate is appropriate, but instead
should be considered in determining the initial hourly rate that should apply in a given case,
56

and that the complexity of a given case should be reflected in the number of hours billed
for a case, not in the applicable hourly rate.
Relying on Isabel v. City of Memphis, Judge Guyton considered both the degree of
success and the complexity of the case in determining the reasonable hourly rates for
plaintiff’s attorneys. 404 F.3d 404, 415–16 (6th Cir. 2005) (identifying “time and labor
required,” “the novelty and difficulty of the questions presented,” “the skill needed to
perform the legal service properly,” and “the amount involved and the results obtained” as
factors courts should consider in determining the reasonableness of an hourly rate). After
considering the relevant factors outlined in Isabel, as well as the prevailing market rate in
the Knoxville area, fee awards in similar cases, and the rate necessary to entice competent
legal counsel to perform the work required, Judge Guyton decided to recommend reducing
the hourly rates requested by plaintiff’s attorneys from $400 to $350 for Attorney Morton
and from $300 to $250 for Attorney Ayesh [Doc. 214 pp. 9–13].
Defendant seems to assume that the appropriate hourly rates in this case are $250
for Attorney Morton and $175 for Attorney Ayesh, and thus argues Judge Guyton’s
decision to determine a fee award based on hourly rates of $350 and $250, respectively,
represent enhancements above the appropriate hourly rate based on factors that were
already considered in determining the baseline hourly rate, such as degree of success. See
Perdue v. Kenny A., 559 U.S. 542, 553 (2010) (noting that enhancements to lodestar rates
may not be based on a factor that is subsumed in the lodestar calculation). This is an
incorrect interpretation of the R&R. Judge Guyton, considering the appropriate factors,
57

determined the appropriate hourly rates for each attorney, and did not enhance those rates
on any basis, let alone on an impermissible basis. This result is consistent with Perdue, as
Perdue cautioned against adjusting or enhancing an hourly rate based on an attorney’s
performance except in rare or exceptional situations. Id. (“We have also held that the
quality of an attorney’s performance generally should not be used to adjust the lodestar
because considerations concerning the quality of a prevailing party’s counsel’s
representation normally are reflected in the reasonable hourly rate.”).
With regard to the complexity of the case, Defendant is correct that complexity is
normally accounted for in the number of billable hours applied to determine the fee award,
as opposed to the hourly rate used in calculating the fee award. See id. (“We have thus
held that the novelty and complexity of a case generally may not be used as a ground for
an enhancement because these factors presumably are fully reflected in the number of
billable hours recorded by counsel.”). The Court notes, again, that Judge Guyton does not
recommend an enhancement in this case, but does implicitly recognize the complexity of
this case in his hourly rate analysis [Doc. 214 p. 10 (“Moreover, while the Defendant refers
to this case a ‘routine’ ADA case, such allegation is contradicted by the procedural
arguments raised in the Defendant’s dispositive motions in this case.”)]. The Court finds,
however, that this single sentence does not undermine Judge Guyton’s hourly rate
recommendations, as the recommendations are supported by substantial evidence and
discussion beyond the implicit reference to the complexity of the case. For example, Judge
Guyton considered, among other factors, a number of fee awards in similar cases, including
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one in which the attorneys were awarded a $345 hourly rate, and the declarations of
experienced lawyers in the Knoxville area identifying $350–$400 as a reasonable rate.
Furthermore, the Court finds that the complexity of a given case or type of case is
inherently related to the hourly rate “which lawyers of comparable skill and experience can
reasonably expect to command within the relevant community” and the hourly rate
“necessary to cause competent legal counsel to perform the work required.” See Brooks v.
Invista (Koch Industries), 2008 WL 304893, at *3 (E.D. Tenn. Jan. 30, 2008). Thus, some
discussion of the nature of the case and its complexity in the hourly rate analysis is to be
expected, and such discussion does not justify rejection of a magistrate judge’s
recommended hourly rate where the recommended hourly rate is supported by other factors
in addition to the complexity of the case.
B.

Conflating the reasonable market rate to attract competent legal counsel
with a rate rewarding Morton and Ayesh for their contributions and
results obtained in this case (objection three)

The Court finds the substance of this objection to be the same as defendant’s “degree
of success” objection discussed above. The Court thus relies on its analysis in the previous
section in overruling this objection, and specifically notes its finding that Judge Guyton’s
recommendation was based on fee awards in similar cases and the declarations of
experienced Knoxville lawyers identifying a reasonable hourly rate in this type of case.

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C.

Failure to specify whether a $350 per hour partner rate and a $250 per
hour associate rate are intended to be the new presumptive rates in
Knoxville or are the result of extraordinary circumstances limited to this
case (objection four)

Defendant argues $250 per hour has recently been held to be a reasonable rate for
experienced attorneys in Knoxville, and objects to the fact that the R&R fails to explain
whether it recommends a new presumptive partner rate of $350 for Knoxville, or whether
the recommended hourly rate is based on extraordinary circumstances present in this case.
The Court notes that the R&R does not state that the recommended hourly rates are based
on extraordinary circumstances present in this case, so the Court infers that the
recommended hourly rates are not based on extraordinary circumstances. With regard to
the establishment of a new presumptive hourly rate for the Knoxville area, Defendant
identifies no authority requiring the R&R to make a finding that the recommended hourly
rate in this case will presumptively be the recommended hourly rate in similar cases going
forward. In light of this, the absence of such a finding in the R&R is not grounds to sustain
defendant’s objection.
In adopting Judge Guyton’s hourly rate recommendations in this case, the Court
does not purport to establish a presumptive rate that will apply to all employment cases or
even to all ADA cases in the future. In each case it is called upon to do so, the Court will
determine a reasonable and appropriate fee award based on the factors and principles
identified in controlling case law.

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D.

The R&R fails to explain why the recommended hourly rates are
different than those applied in recent, similar cases (objections five and
six)

Defendant again objects to the hourly rate calculation for both Attorney Morton and
Attorney Ayesh, this time arguing the R&R does not sufficiently explain why the
recommended hourly rates differ from those applied in recent, similar cases. The Court
finds these objections to be substantively similar to defendant’s first, second, and third
objections, and thus incorporates its analysis of those objections here.
Judge Guyton considered other, similar cases and did, in fact, distinguish recent
Knoxville employment cases identified by defendant, finding this case to be
distinguishable from a case in which an hourly rate of $250 was applied and identifying a
similar case in which an hourly rate of $345 was applied [Doc. 214 pp. 10–11]. To the
extent defendant disagrees with Judge Guyton’s analysis, or argues it is insufficient to
support a finding that lower hourly rates would not be “sufficient to encourage competent
lawyers in the relevant community to undertake legal representation,” the Court notes
Judge Guyton’s recommendation is also based on the declarations of several experienced
Knoxville lawyers who state plaintiff’s attorneys original, higher requested hourly rates of
$400 and $300 are reasonable. Judge Guyton did not recommend applying the requested
hourly rates because he determined other attorneys comparable to plaintiff’s attorneys
charge lower hourly rates than $400 and $300, and in some cases where attorneys received
hourly rates of $400 the rate was agreed to as part of a settlement. Judge Guyton also

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considered Attorney Morton’s 2014 retainer agreement, which specifies a rate of $350 per
hour.
Put simply, Judge Guyton adequately justified the recommended hourly rates, and
in doing so analyzed their relation to other, recent Knoxville employment cases. The
analysis underlying the recommendations was both sufficient and appropriate. See Van
Horn v. Nationwide Pro. & Cas. Ins., 436 F. App’x 496, 499 (6th Cir. 2011) (noting that a
district court may look to “a party’s submissions, awards in analogous cases, state bar
association guidelines, and its own knowledge and experience in handling similar fee
requests” when determining an appropriate hourly rate).
E.

Failure to analyze the reasonableness and propriety of plaintiff’s “fees
for fees’ request

Defendant objects to Judge Guyton’s finding that the 90.4 hours plaintiff’s attorneys
billed for preparation of their motion for fees was reasonable. Judge Guyton considered
the time billed by plaintiff’s attorneys for their initial motion for fees and for each of
plaintiff’s two supplemental motions for fees. Judge Guyton found that the time billed in
relation to the second supplemental motion for fees should be reduced by 50%, and
implicitly found that the hours billed in relation to plaintiff’s other motions for fees were
reasonable [Doc. 214 p. 27 (“The Court has reviewed the billing entries and recommends
that the time submitted in the Second Supplemental Motion [Doc. 213] be reduced by 50%
. . . The Court agrees with the Defendant that [these] billing entries are duplicative and
excessive”)]. Defendant argues the R&R lacks substantive analysis as to why the hours
billed in relation to the first two motions for fees were reasonable.
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By singling out the hours billed in the second supplemental motion for fees as
unreasonable, duplicative, and excessive, and recommending that the requested hours be
reduced by 50%, Judge Guyton distinguishes those hours from the other time plaintiff’s
attorneys billed in relation to litigating attorney’s fees. It is true that Judge Guyton does
not explicitly find that the hours billed in the initial motion for fees or the first supplemental
motion for fees are reasonable, but it is clear from the context of the R&R that Judge
Guyton considered the time billed in those requests to be reasonable, as he contrasted them
with the other, unreasonable hours he identified. Inherent in this comparison is Judge
Guyton’s finding that plaintiff’s first two motions for fees did not include time that was
unreasonable, duplicative, or excessive.
F.

Improperly declining to reduce the number of hours billed to account
for the EEOC’s role in litigating plaintiff’s claims

Defendant argues the R&R improperly declines to reduce the hours billed by
plaintiff’s attorneys to account for the EEOC’s role in litigating plaintiff’s claims, as the
EEOC likely contributed significantly to the overall workload involved in this litigation.
Judge Guyton specifically addressed this line of argument, and determined that no
reduction of hours was necessary in this case as Attorneys Morton and Ayesh worked
closely with the EEOC to avoid duplicative work to the maximum extent possible.
While Defendant is correct that other courts have reduced fee awards to account for
the contribution of government agencies in litigating cases, there is no evidence of
redundant or overlapping work in the present case that would support such a reduction.
Instead, there is ample evidence in the form of submissions from plaintiff’s attorneys and
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from EEOC counsel that the two groups worked efficiently and made a significant effort
to avoid duplicative work by dividing tasks such as handling depositions and responding
to motions. Having considered this evidence, Judge Guyton reasonably and appropriately
determined there was no need to reduce the hours plaintiff’s attorneys billed in this case
due to assistance from the EEOC [Doc. 214 pp. 23–26].
IX.

Conclusion
For the reasons discussed herein, the Court hereby:
A.

DENIES defendant’s Motion to Amend Judgment and Motion for Judgment
as a Matter of Law or, Alternatively, for New Trial [Doc. 159];

B.

GRANTS in part and DENIES in part the EEOC’s Motion for Permanent
Injunction [Doc. 161], to the extent discussed herein;

C.

GRANTS defendant’s Motion to Disregard Issues Raised for the First Time
in EEOC’s Reply, or in the Alternative, for Leave to File a Sur-Reply [Doc.
200], to the extent that the Court considered defendant’s sur-reply [Doc. 2001];

D.

OVERRULES defendant’s objections to the R&R [Doc. 217];

E.

ACCEPTS IN WHOLE the R&R [Doc. 214]; and

F.

GRANTS in part and DENIES in part Atkins’s Motions for Award of
Attorneys’ Fees and Costs [Docs. 163, 202, 211], in that the Court
AWARDS Atkins $445,322.25 in attorneys’ fees and $1,676.95 in litigation
expenses.

The Court will enter a separate Injunction Order including the terms discussed
herein.
ENTER:
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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