Reynolds v. AutoZone
Filing
20
MEMORANDUM DECISION AND ORDER granting 17 Motion for Summary Judgment. Signed by Judge Ted Stewart on 7/15/2019. (las)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
APRIL M. REYNOLDS,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
Plaintiff,
v.
AUTOZONE, INC. a.k.a. AUTOZONERS,
LLC,
Case No. 2:17-CV-1319 TS
Defendant.
District Judge Ted Stewart
This matter is before the Court on Defendant’s Motion for Summary Judgment. For the
reasons discussed below, the Court will grant the Motion.
I. BACKGROUND
Plaintiff April Reynolds was hired by Defendant AutoZone, Inc. on July 16, 2009, and
was employed as a full-time sales associate. Plaintiff began having knee problems in 2010.
Plaintiff’s weight contributed to arthritis in her knees.
On December 19, 2010, Plaintiff transferred to a different AutoZone store where she
continued to work as a full-time sales associate. Plaintiff was then promoted to Parts Sales
Manager and again to Commercial Sales Manager (“CSM”). The job description for the CSM
position includes the following physical requirements:
• Frequently bending, twisting, and rotating trunk, arms and legs
• Standing 100% of the time; walking 99% of the time; climbing 10% of the time
• Working with arms extended and bent constantly
• Frequently moving parts and stock weighing up to 35 lbs., 10 to 50 feet
• Occasionally moving parts and stock weighing up to 50 lbs.; pushing and pulling
occasionally
• Frequently moving merchandise weighing 10-25 lbs. from floor to counter
1
• Occasionally moving and stocking overhead shelves with parts weighing 5 - 15
lbs .
• Constant gross hand and finder dexterity; frequently grasping and manipulating
• Constant hand and eye coordination 1
On November 8, 2013, Plaintiff received gastric sleeve bariatric surgery. On November
18, 2013, one of Plaintiff’s doctors, Richard L. Glines, M.D., stated in a letter that Plaintiff
required the use of a cane through January 2014 for degenerative joint disease of the left knee.
On November 23, 2013, Plaintiff was released to work with no restrictions in relation to her
gastric sleeve surgery.
After Plaintiff returned to work following her surgery, Victor Vickrey, AutoZone’s
Regional Human Resource Manager visited Plaintiff’s store and noticed Plaintiff using a cane.
Vickrey asked Plaintiff to provide another physician report listing her exact restrictions.
On December 19, 2013, Derek Boam, M.D., released Plaintiff to work with certain
restrictions. Those restrictions included not lifting, carrying, pushing, or pulling anything over
20 pounds. Additionally, Plaintiff was limited in her ability to squat, crouch, climb stairs or
ladders, kneel, crawl, do overhead work, stand, and walk. These restrictions were to remain in
place until February 14, 2014.
After this report was prepared, Vickrey met with Plaintiff on December 30, 2013.
Plaintiff confirmed that she had difficulty performing the following job functions: standing,
kneeling, walking, lifting, climbing, pulling, and stocking shelves. She additionally listed the
following job-related limitations: squatting, climbing, lifting over 20 pounds, and pushing or
pulling over 20 pounds.
1
Docket No. 17-1, at 80.
2
On a form completed that day, Plaintiff requested having an additional person at the store
whenever she was scheduled to assist her. 2 Plaintiff contends that Vickrey instructed her to write
this and what she was actually requesting was an informal accommodation where other workers
already present would provide help when needed. After this request, Defendant decided to place
Plaintiff on a leave of absence, effective until February 19, 2014.
Plaintiff again saw Dr. Boam on February 18, 2014. Dr. Boam noted the same
restrictions. He also stated that Plaintiff required a knee replacement and must use a cane when
ambulatory. These restrictions were in place until May 19, 2014. Defendant then extended
Plaintiff’s leave.
On June 2, 2014, Plaintiff had a partial knee replacement performed. On August 28,
2014, Dan Richards, D.O., released Plaintiff to return work on September 8, 2014, with the same
restrictions previously imposed. Defendant again extended Plaintiff’s leave. Plaintiff concedes
that she was not able to work from June 2014 to September 2014. 3
Plaintiff met with Vickrey and District Manager Barry Funk on February 3, 2015.
Plaintiff informed Vickrey and Funk that she was about to have surgery on her other knee and,
therefore, remained on leave.
On February 19, 2015, Dr. Richards performed surgery on Plaintiff’s other knee,
replacing the right knee cap.
2
Docket No. 17-1, at 82.
3
Docket No. 18, at 29 n.6.
3
On May 18, 2015, Dr. Richards released Plaintiff to return to work, again with
restrictions. On June 9, 2015, Plaintiff requested an accommodation that would allow someone
else to climb ladders for her and help put away parts.
Plaintiff returned to work on June 22, 2015. Plaintiff voluntarily terminated her
employment on August 3, 2015.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” 4 In
considering whether a genuine dispute of material fact exists, the Court determines whether a
reasonable jury could return a verdict for the nonmoving party in the face of all the evidence
presented. 5 The Court is required to construe all facts and reasonable inferences in the light most
favorable to the nonmoving party. 6
III. DISCUSSION
Plaintiff asserts the following causes of action: failure to accommodate; disability
discrimination; retaliation; and gender discrimination. Each claim will be discussed below.
4
Fed. R. Civ. P. 56(a).
5
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
6
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
4
A.
DISCRIMINATION UNDER THE ADA
Discrimination under the ADA encompasses three types of discrimination: disparate
treatment, failure to accommodate, and disparate impact. 7 Plaintiff brings claims for disparate
treatment and failure to accommodate. “Where, as here, an ADA plaintiff seeks to proceed to
trial exclusively on the basis of circumstantial evidence of discrimination, [the Tenth Circuit has]
held that ‘the analytical framework first articulated in’ McDonnell Douglas . . . controls our
analysis.” 8 Under that framework, Plaintiff must first establish a prima facie case of
discrimination. 9 If a plaintiff establishes a prima facie case of discrimination, the burden then
shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action. 10 Once the defendant articulates a legitimate, non-discriminatory reason for
its action, the burden shifts back to the plaintiff to prove, by a preponderance of the evidence,
that the defendant’s reasons are pretextual. 11
1.
Failure to Accommodate
The ADA provides that discrimination includes “not making reasonable accommodations
to the known physical or mental limitations of an otherwise qualified individual with a disability
who is an . . . employee, unless such covered entity can demonstrate that the accommodation
7
Davidson v. Am. Online, Inc., 337 F.3d 1179, 1188–89 (10th Cir. 2003).
8
Johnson v. Weld Cty. Colo., 594 F.3d 1202, 1217 (10th Cir. 2010) (quoting MacKenzie
v. City & Cty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005)). A failure-to-accommodate
claim is evaluated under a modified McDonnell Douglas burden-shifting framework. See Punt v.
Kelly Servs., 862 F.3d 1040, 1049–50 (10th Cir. 2017).
9
Johnson, 594 F.3d at 1217.
10
Id.
11
Id.
5
would impose an undue hardship on the operation of the business of such covered entity.” 12 A
reasonable accommodation “may include . . . job restructuring, part-time or modified work
schedules, reassignment to a vacant position, acquisition or modification of equipment or
devices, appropriate adjustment or modifications of examinations, training materials or policies,
the provision of qualified readers or interpreters, and other similar accommodations for
individuals with disabilities.” 13
“In order to establish a prima facie case of failure to accommodate in accordance with the
ADA, a plaintiff must show that: (1) she is a qualified individual with a disability; (2) the
employer was aware of her disability; and (3) the employer failed to reasonably accommodate
the disability.” 14
The ADA “requires an employer to provide a ‘reasonable accommodation, not the
accommodation [the employee] would prefer.’” 15
[The ADA’s] use of the word “reasonable” as an adjective for the word
“accommodate” connotes that an employer is not required to accommodate an
employee in any manner in which that employee desires. This is so because the
word “reasonable” would be rendered superfluous in the ADA if employers were
required in every instance to provide employees the maximum accommodation or
every conceivable accommodation possible. . . . Stated plainly, under the ADA a
qualified individual with a disability is not entitled to the accommodation of her
choice, but only to a reasonable accommodation. 16
12
42 U.S.C. § 12112(b)(5)(A).
13
Id. § 12111(9)(B).
14
Allen v. SouthCrest Hosp., 455 F. App’x 827, 830 n.2 (10th Cir. 2011) (quoting
Kotwica v. Rose Packing Co., Inc., 637 F.3d 74, 747–48 (7th Cir. 2011)).
15
Selenke v. Med. Imaging of Colo., 248 F.3d 1249, 1263 (10th Cir. 2001) (quoting
Rehling v. City of Chi., 207 F.3d 1009, 1014 (7th Cir. 2000)).
16
Smith v. Midland Brake, Inc., 180 F.3d 1154, 1177 (10th Cir. 1999) (quoting Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285–86 (11th Cir. 1997)).
6
Here, the evidence demonstrates that Defendant provided a reasonable accommodation.
The Tenth Circuit has repeatedly held that a leave of absence can be a reasonable
accommodation. 17 Plaintiff asserts that Defendant should have allowed her to continue working
and to rely on her fellow employees to help, when needed. However, Plaintiff is not entitled to
an accommodation of her choice. While Plaintiff may have wanted a different accommodation
than was provided by Defendant, the ADA did not require Defendant to provide Plaintiff with
her preferred accommodation, only a reasonable one. Moreover, Plaintiff’s requested
accommodation would have required other employees to perform essential functions of
Plaintiff’s job. The Tenth Circuit has consistently held “that an employee’s request to be
relieved from an essential function of her position is not, as a matter of law, a reasonable or even
plausible accommodation.” 18 Moreover, shifting Plaintiff’s job duties onto her coworkers
“would result in other employees having to work harder or longer hours,” which is not a
reasonable accommodation. 19 Therefore, Plaintiff’s reasonable accommodation claim fails.
2.
Disparate Treatment
The ADA provides: “No covered entity shall discriminate against a qualified individual
on the basis of disability in regard to job application procedures, the hiring, advancement, or
discharge of employees, employee compensation, job training, and other terms, conditions, and
17
Robert v. Bd. of Cty. Comm’rs of Brown Cty., Kan., 691 F.3d 1211, 1217–18 (10th Cir.
2012); Cisneros v. Wilson, 226 F.3d 1113, 1129 (10th Cir. 2000); Taylor v. Pepsi-Cola, Co., 196
F.3d 1106, 1110 (10th Cir. 1999); Rascon v. U.S. West Commc’ns, Inc., 143 F.3d 1324, 1333–34
(10th 1998); Hudson v. MCI Telecomms. Corp., 87 F.3d 1167, 1169 (10th Cir. 1996).
18
Mason v. Avaya Commc’ns, Inc., 357 F.3d 1114, 1122 (10th Cir. 2004).
19
Milton v. Scrivner, Inc., 53 F.3d 1118, 1125 (10th Cir. 1995).
7
privileges of employment.” 20 To establish a prima facie case of discrimination, a plaintiff must
show that: (1) she is disabled; (2) she is qualified with or without a reasonable accommodation to
perform the essential functions of her job; and (3) her employer discriminated against her
because of her disability. 21
The parties dispute whether Plaintiff was qualified to perform the essential functions of
her job. “To demonstrate that [s]he was a qualified individual, a plaintiff must first establish that
[s]he had ‘the requisite skill, experience, education and other job-related requirements of the
employment position.’” 22 “Second, [s]he must establish that he can perform the ‘essential
functions’ of the position.” 23
“Essential functions” are “the fundamental job duties of the employment position the
individual with a disability holds or desires.” 24
Evidence considered in determining whether a particular function is essential
includes: (1) the employer’s judgment as to which functions are essential; (2)
written job descriptions prepared before advertising or interviewing applicants for
the job; (3) the amount of time spent on the job performing the function; (4) the
consequences of not requiring the incumbent to perform the function; and (5) the
work experience of past incumbents in the job. 25
There is no question that Plaintiff could not perform the essential functions of her
position absent some sort of accommodation. As set forth above, the essential functions of a
20
42 U.S.C. § 12112(a).
21
Doebele v. Sprint/United Mgmt. Co., 342 F.3d 1117, 1128 (10th Cir. 2003).
22
Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1192 (10th Cir. 2018) (quoting Tate v.
Farmland Indus., Inc., 268 F.3d 989, 993 (10th Cir. 2001)).
23
Id.
24
29 C.F.R. 1630.2(n)(1).
25
Mason, 357 F.3d at 1119 (citing 29 C.F.R. § 1630.2(n)(3)).
8
CSM included a number of physical requirements that Plaintiff was not able to perform based on
her physical ailments and the restrictions placed on her by her doctors. 26
Plaintiff contends that the CSM job was mostly managerial. However, she concedes that
it entailed certain physical requirements that “required her and/or some other employee or driver
or some combination of employees to do some lifting and moving of heavy parts.” 27 Plaintiff
argues that it did not matter how this occurred, only that it did. But, by conceding that she could
not do these tasks alone, she demonstrates that she was not able to perform the essential
functions of a CSM.
Plaintiff argues that she would have been able to do her job with the use of a cane and
with the help of her coworkers. However, as discussed, Plaintiff’s requested accommodation
was not reasonable. Therefore, Plaintiff cannot demonstrate the second element of a prima facie
case.
Even if Plaintiff could meet this element, “[t]he final prong of the test requires the
plaintiff to present some affirmative evidence that disability was a determining factor in the
employer’s decision.” 28
A plaintiff may establish an inference of discrimination through (1) actions or
remarks made by decisionmakers that could be viewed as reflecting a
discriminatory animus, (2) preferential treatment given to employees outside the
26
The Court must consider the job description in determining the essential functions of
the job. See 42 U.S.C. § 12111(8) (stating that “consideration shall be given to the employer’s
judgment as to what functions of a job are essential, and if an employer has prepared a written
description before advertising or interviewing applicants for the job, this description shall be
considered evidence of the essential functions of the job”).
27
Docket No. 18, at 28; see also id. at 34 (“In the instant case, the evidence is not
disputed that, as Ms. Reynolds’ knee condition worsened, she could not climb ladders, lift heavy
parts, squat, kneel, and so forth, by herself.”).
28
Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).
9
protected class, (3) a pattern of recommending the plaintiff for positions for which
she is not qualified [or over-qualified], and (4) a failure to surface plaintiff’s name
for positions for which she is well-qualified. 29
Here, there is no evidence that Defendant placed Plaintiff on leave and continued her
leave because of her disability. Rather, the evidence shows that Defendant placed Plaintiff on
leave to accommodate her disability and Plaintiff was permitted to return to work as soon as she
was cleared to do so without restrictions. There is simply no evidence that discriminatory
animus played any role in Defendant’s decisions.
Assuming that Plaintiff could demonstrate a prima facie case, her claim still fails.
Defendant has articulated a legitimate, non-discriminatory reason for placing Plaintiff on leave.
Specifically, that Plaintiff could not perform the functions of her job and that it could not
accommodate Plaintiff’s request for additional help. While Plaintiff disputes the characterization
of her requested accommodation, this dispute is irrelevant at this step of the McDonnell Douglas
burden-shifting test.
Defendant’s burden at this step is “exceedingly light.” 30 “The defendant need not
persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the
defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the
plaintiff.” 31 Defendant’s “burden is one of production, not persuasion; it ‘can involve no
credibility assessment.’” 32 Instead, the Court must determine whether Defendants have
29
Lincoln, 900 F.3d at 1193 (internal quotation marks omitted).
30
DePaula v. Easter Seals El Mirador, 859 F.3d 957, 970 (10th Cir. 2017).
31
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (citation omitted).
32
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (quoting St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)).
10
submitted evidence that, “if believed by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action.” 33 Defendant has met its burden
here.
Thus, the burden shifts to Plaintiff to demonstrate pretext. “To establish pretext,
[Plaintiff] must present ‘evidence of such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of credence and hence infer that the
employer did not act for the asserted non-discriminatory reasons.’” 34
Plaintiff attempts to show pretext by evaluating what Defendant did and did not do.
Plaintiff first complains that Defendant did not send her for a functional capacity evaluation.
However, Defendant had information from Plaintiff’s own doctors documenting her restrictions.
Plaintiff fails to demonstrate how a functional capacity evaluation would differ from the opinions
of her doctors.
Plaintiff further complains that Defendant did not allow her a “trial run” to see if she
could continue to work as she had. However, as discussed, that accommodation shifts Plaintiff’s
responsibilities onto her coworkers and required them to do her work. Such an accommodation
is not reasonable.
Plaintiff next argues that Defendant did not try to reconfigure her job or offer a
reasonably equivalent accommodation. While such things may constitute reasonable
33
St. Mary’s Honor Ctr., 509 U.S. at 507.
34
Proctor v. UPS, 502 F.3d 1200, 1209 (10th Cir. 2007) (quoting Argo v. Blue Cross &
Blue Shield of Kan., Inc., 452 F.3d 1193, 1203 (10th Cir. 2006)).
11
accommodations, as discussed, Defendant only needed to provide a reasonable accommodation,
not one of Plaintiff’s choosing. And, again, Defendant was not required to assign essential
functions to other employees.
Plaintiff also states that Defendant did not explore transferring her to a larger store or
transferring her to a different job that did not involve the same physical requirements.
Reassignment to a vacant position constitutes a possible accommodation, but an employer need
not create new positions to accommodate an employee. 35 However, there is no evidence that
Plaintiff ever requested such a transfer and there is no evidence that there was a vacant position
to which she could transfer.
Plaintiff next argues that Defendant should have conducted a cost-benefit analysis to
determine whether hiring a full time assistance would create an undue hardship. However, in his
Declaration, Mr. Vickrey states that he did engage in such analysis and concluded that it would
have been unreasonable to schedule an additional person whenever Plaintiff was working. 36
Finally, Plaintiff complains that Defendant did not try to do anything to keep her
working. However, this argument ignores that Plaintiff could not perform the essential functions
of her job given her restrictions and, as soon as those restrictions were lifted, she was able to
return to work. Therefore, Plaintiff has failed to show pretext.
B.
RETALIATION
The ADA provides that “[n]o person shall discriminate against any individual because
such individual has opposed any act or practice made unlawful by this chapter or because such
35
See Smith, 180 F.3d at 1174–75.
36
Docket No. 17-1, at 107.
12
individual made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this chapter.” 37 To establish a prima facie case of retaliation under
the ADA, Plaintiff must show that: (1) she engaged in a protected activity; (2) a reasonable
employee would have found the challenged activity materially adverse; and (3) a causal
connection existed between the protected activity and the materially adverse action. 38 Like
Plaintiff’s claims for discrimination, Plaintiff’s claim for retaliation is subject to the McDonnell
Douglas burden-shifting framework. 39
“To establish a causal connection, [Plaintiff] must present ‘evidence of circumstances
that justify an inference of retaliatory motive.’” 40 Here, there is no such evidence and, even if
there was, Plaintiff has failed to present evidence of pretext. Plaintiff points to the temporal
proximity between her request for an accommodation and her placement on leave. However,
temporal proximity alone is not sufficient to defeat summary judgment. 41
Plaintiff further takes issue with what Defendant did and, more to the point, did not that
might have permitted her to continue working, rather than being placed on leave. However, as
discussed, these arguments fail and do not demonstrate that placing and extending Plaintiff’s
leave was pretextual.
37
42 U.S.C. § 12203.
38
Jones v. UPS, Inc., 502 F.3d 1176, 1193 (10th Cir. 2007).
39
Anderson v. Coors Brewing Co., 181 F.3d 1171, 1178 (10th Cir. 1999).
40
Ward v. Jewell, 772 F.3d 1199, 1203 (10th Cir. 2014) (quoting Williams v. W.D.
Sports, N.M., Inc., 497 F.3d 1079, 1091 (10th Cir. 2007)).
41
Medina v. Income Support Div., N.M., 413 F.3d 1131, 1138 (10th Cir. 2005).
13
C.
GENDER DISCRIMINATION
Title VII prohibits an employer from discriminating against any individual because of
“race, color, religion, sex, or national origin.” 42 “To make out a prima facie case of
discrimination, [Plaintiff] must demonstrate (1) membership in a protected class, (2) adverse
employment action, and (3) disparate treatment among similarly situated employees.” 43
Plaintiff concedes “that she likely cannot satisfy her burden of proof as to disparate
treatment on the basis of gender” and “does not challenge” Defendant’s Motion on this point. 44
Based upon these statements, the Court will enter judgment as to this claim.
IV. CONCLUSION
It is therefore
ORDERED that Defendant’s Motion for Summary Judgment (Docket No. 17) is
GRANTED.
DATED this 15th day of July, 2019.
BY THE COURT:
Ted Stewart
United States District Judge
42
42 U.S.C. § 2000e-2(a)(1).
43
Orr v. City of Albuquerque, 417 F.3d 1144, 1149 (10th Cir. 2005).
44
Docket No. 18, at 40, 39.
14
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