Morrisette v. MDV Spartan Nash
Filing
32
MEMORANDUM OPINION & ORDER entered and filed 8/1/16: This disability discrimination and retaliation case is before the court on Defendant MDV SpartanNash, LLC's ("Defendant" or "SpartanNash") Motion for Summary Judgment. (ECF No. 19). SpartanNash contends that it is entitled to judgment against Plaintiff Robert E. Morrisette, Jr., ("Plaintiff or "Morrisette") because the company did not discriminate against Morrisette by failing to accommodate his disability and did not retaliate against him after he filed a lawsuit against the company. Morrisette argues that genuine disputes of material fact - principally concerning the company's knowledge of his medical condition, his pend ing employment claims, and previous accommodation of other truck drivers - preclude summary judgment on both claims. The parties previously entered their consent to proceed before a United States Magistrate Judge, and all further proceedings in the case were referred in accordance with 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. For the reasons outlined in this Order, the court agrees with Morrisette and DENIES Defendant SpartanNash's 19 Motion for Summary Judgment, as outlined. (See Order and Foot Notes for Specifics) (Signed by Magistrate Judge Douglas E. Miller on 8/1/16). Copies provided to all parties on 8/1/16. (ecav, )
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
ROBERT E. MORRISETTE, JR.,
Plaintiff,
v.
Civil Action No. 2:15cvl99
MDV SPARTANNASH, LLC,
Defendant.
MEMORANDUM OPINION & ORDER
This disability discrimination and retaliation case is before the court on Defendant MDV
SpartanNash, LLC's ("Defendant" or "SpartanNash") Motion for Summary Judgment.
No. 19).
(ECF
SpartanNash contends that it is entitled to judgment against Plaintiff Robert E.
Morrisette, Jr., ("Plaintiff or "Morrisette") because the company did not discriminate against
Morrisette by failing to accommodate his disability and did not retaliate against him after he filed
a lawsuit against the company.
Morrisette argues that genuine disputes of material fact -
principally concerning the company's knowledge of his medical condition, his pending
employment claims, and previous accommodation of other truck drivers - preclude summary
judgment on both claims. For the reasons outlined below, the court agrees with Morrisette and
DENIES Defendant SpartanNash's Motion.1
1The parties previously entered their consent to proceed before a United States Magistrate Judge, and all
further proceedings in the case were referred in accordance with 28 U.S.C. § 636(c) and Rule 73 of the
Federal Rules of Civil Procedure.
1
I.
UNDISPUTED MATERIAL FACTS2
Plaintiff Morrisette is currently, and was during the time period relevant to this suit,
employed as a truck driver with Defendant SpartanNash, a food distribution company that
primarily serves military commissaries. Decl. of Michael Digioia ffl[ 3-4 (ECF No. 20-1, at 1).
In 2010, Morrisette was diagnosed with pituitary adenoma, which involves growth in the
pituitary gland, and he also learned he had a pineal cyst. Dep. of Robert Morrisette (ECF No.
20-2, at 2). These growths are benign, but can cause vision loss and headaches. Dep. of Dr.
Joesph Aloi (ECF No. 20-3, at 4).
Dr. Joseph Aloi ("Dr. Aloi") was Morrisette's treating
endocrinologist, jd. at 3-4, and in February 2011, Dr. Aloi, on behalf of Morrisette, submitted
Family and Medical Leave Act ("FLMA") documentation to SpartanNash. (ECF No. 20-5). In
this February 2011 paperwork, Dr. Aloi stated that Morrisette had "[fjrequent headaches, fatigue,
[and] intermittent nausea," and with regard to Morrisette's work, Dr. Aloi noted that "it may be
very difficult for him to work overtime." Id at 2-3.
In January 2012, Dr. Aloi submitted additional FLMA paperwork, stating that Morrisette
"has frequent headaches (some severe), fatigue, [and] intermittent nausea and vomiting." (ECF
No. 20-6, at 2). Dr. Aloi also stated that "[i]f headache is severe causes vomiting," and "[it is]
very difficult for pt [patient] to work more than 10 hours per day due to severe fatigue." Id. at 3.
In January 2013, Dr. Aloi submitted FLMA paperwork with essentially the same description of
Morrisette's condition and work restrictions as the January 2012 paperwork. (ECF No. 20-7, at
2-3). Dr. Aloi again submitted FLMA paperwork in January 2014, noting that Morrisette "[h]as
frequent headaches (severe), fatigue, intermittent nausea, [and] extreme fatigue when driving for
2Pursuant to Local Civil Rule 56, these facts are established by the movant's list of material facts that it
contends are not in dispute, as well as the nonmoving party's list of undisputed facts and exhibits in the
record. E.D. Va. Local Civil R. 56 (stating that unless "a fact is controverted in the statement of genuine
issues filed in opposition to the motion," the moving party's listing of material facts is admitted); (ECF
Nos. 20, 22, 23).
prolonged periods." (ECF No. 20-8, at 3). Dr. Aloi stated that "[i]f headache is severe and
causes vomiting.... Very difficult for pt [patient] to work more than 8-10 hours per day due to
severe fatigue." Id at 4.
From July 2012 to March 2015, Michael Digioia ("Digioia") worked as SpartanNash's
Transportation Manager, and in this position, he supervised the drivers in Norfolk, Virginia,
including Morrisette. Digioia Decl. 1fl| 3-4 (ECF No. 20-1, at 1). On March 27, 2015, Guy Gross
became the Transportation Manager at SpartanNash, and he currently supervises Morrisette and
the other Norfolk drivers. Decl. of Guy Gross U 3 (ECF No. 20-4, at 1). During the time period
relevant to this suit, Sam Tramatan served as Regional Director at SpartanNash. Id.
Morrisette and the other drivers at SpartanNash operate under a collective bargaining
agreement ("CBA") with the Teamsters, effective April 28, 2013, to April 23, 2016. Id. ^ 4; see
also CBA Agreement (ECF No. 20-4, at 4-45). Under the CBA, drivers have the opportunity to
bid for different driving routes based on seniority. Gross Decl. ^ 5 (ECF No. 20-4, at 1); CBA
Agreement (ECF No. 20-4, at 36). Master bids, which determine the driving schedule for a set
period of time, occur at least once annually, and two weeks prior to a master bid, the company
posts notice of the upcoming bid opportunity. (ECF No. 20-4, at 36). Each bid opportunity
includes "a set of runs that establish a work load for a week with certain set runs." Gross Decl. ^
5 (ECF No. 20-4, at 1). These "runs" include routes to military commissaries within the region,
ports that service overseas commissaries, or "for hire" runs to other vendor locations. Id The
length of each run varies. Runs to bases are usually within two hours of the distribution center,
but can be up to five hours away, and runs to ports, such as Norfolk, Virginia, and Portsmouth,
Virginia, are typically within one hour of the distribution center. Id. ^ 6 (ECF No. 20-4, at 2).
"For hire" runs vary in length from one to three days.
Id
When creating the various runs,
SpartanNash seeks to "create bid sets that will result in the most efficient use of equipment, drive
time and fuel."
Id. ^ 5. To determine the most efficient route, SpartanNash considers the
"locations of the commissaries, distance and routes between the commissaries, volume of goods
to each commissary, how often replenishment is needed to the goods, available back hauls, and
seasonality of goods." Id ^ 6. After the bidding process ends and the runs are filled, the bids are
placed on the master schedule. (ECF No. 20-4, at 36).
In addition to the master schedule,
SpartanNash uses an "extra board which has the postings of extra runs that are not part of the
master schedule." Digioia Decl. H 5 (ECF No. 20-1, at 1). The runs on the extra board are
dependent on customer needs. Id. As part of the bidding process, there is also one bid package
in which the driver takes only runs from the extra board, but generally selects these runs before
other drivers. Id
In December 2013, SpartanNash posted bid opportunities for a new master schedule,
which was scheduled to begin in January 2014. Id 11 6 (ECF No. 20-1, at 2). There were a
variety of bid opportunities, including extra board bids. Morrisette Dep. (ECF No. 20-2, at 25).
Morrisette bid on, and was awarded, a package with four port runs and a Saturday run to Fort
Bragg. Digioia Decl. ^ 6 (ECF No. 20-1, at 2). The Fort Bragg run required a longer trip than
the port runs, and when Morrisette bid on this package he knew that he could not do the Fort
Bragg run due to his medical condition. Morrisette Dep. (ECF No. 20-2, at 18) ("Am I correct
that at the time you bid it and received that run, you knew you couldn't do a Fort Bragg run; is
that fair?" "That's fair."). Instead of performing the Fort Bragg runs, Morrisette offered his Fort
Bragg runs to other drivers.
Digioia Decl. ^ 7 (ECF No. 20-1, at 2). Morrisette believed he
could find other drivers to perform the Fort Bragg run, and thought he would be able to select a
run from the extra board that he could perform within his limitations. Morrisette Dep. (ECF No.
22-1, at 4-5). When Digioia learned that Morrisette did not intend to perform the Saturday runs
to Fort Bragg, he terminated Morrisette's performance of the bid entirely and placed him at the
bottom of the extra board until the next bid opportunity. Digioia Decl. ^ 8 (ECF No. 20-1, at 2).
During this period, Morrisette bid runs on the extra board that he was able to perform, but his
position at the bottom of the board led to less desirable runs, and he was not earning as much as
he earned performing the bid runs. Morrisette Dep. (ECF No. 20-2, at 9-10). In April 2014, a
new bid occurred, and Morrisette bid the extra board run. Digioia Decl. ^ 8 (ECF No. 20-1, at
2). After Morrisette bid the extra board run in April 2014, he continued to perform runs within
his limitations from the extra board until May 2015. Gross Decl. ^ 1 (ECF No. 20-4, at 2). The
vast majority of these runs consisted of port runs. Id
In May 2015, a new bid occurred, and Morrisette bid on, and was awarded, a bid with
port runs only, which provided Morrisette with a regular schedule of runs he could perform
within his limitations. Id f 8. On July 30, 2015, SpartanNash sent a letter informing drivers that
the company planned to reduce the number of port drivers from ten drivers to seven drivers. July
30, 2015, Letter (ECF No. 20-4, at 48). The reduction affected Morrisette and two other drivers.
Morrisette Dep. (ECF No. 20-2, at 7).
The remaining seven port drivers were all senior to
Morrisette, but Morrisette was the senior-most driver of the three drivers whose port run
positions were eliminated. Id at 8. After SpartanNash reduced the number of port drivers,
Morrisette was placed back on the extra board, and presently bids runs off the extra board that
work with his restrictions. Id. at 9-10. When bidding on runs on the extra board, Morrisette is
currently the fourth most senior driver, meaning there are three employees on the extra board
who are more senior than Morrisette. Id at 3-4. As a result of losing his bid of regular port runs,
Morrisette has a less desirable schedule and earns less income.
Id (discussing the limited
availability of runs on the extra board that accommodate Morrisette's medical condition).
II.
GENUINELY DISPUTED MATERIAL FACTS
In addition to the foregoing undisputed facts, the parties have introduced exhibits and
testimony that raise disputes of material fact. Morrisette argues that these genuine disputes of
material fact preclude summary judgment on either of his claims because they relate to
SpartanNash's rationale for removing Morrisette from his December 2013 bid and the
company's decision to reduce the number of port drivers. The court recites each party's position
with appropriate citation.
A.
Whether Morrisette's Removal From His December 2013 Bid and Placement on the
Extra Board Was Discriminatory, or Denied Him a Reasonable Accommodation.
Morrisette's position is that his removal from his December 2013 bid was due to his
disability, and the company's failure to provide a comparable alternative route constituted a
failure to accommodate his medical condition. Specifically, Morrisette states that SpartanNash
knew he had "a pituitary problem that ' cause[d] him to have frequent severe headaches and
fatigue' that precluded him from working 'any extra hours,' " and knew he had difficulty
working "more than 10 hours per day." PL's Br. (ECF No. 22, at 2) (citing Jan. 7, 2011, Letter
(ECF No. 22-10, at 3); 2012 FLMA Paperwork (ECF No. 20-6); 2013 FLMA Paperwork (ECF
No. 20-7)). He asserts that the company knew he would not be able to perform the Fort Bragg
run when he bid on the package in December 2013 because SpartanNash's own calculations
indicated that the Fort Bragg run - which was to be completed on Saturdays - required more
than ten hours of work and was therefore outside the range permitted by Morrisette's medical
condition. Id at 3. And, when Morrisette asked for an accommodation for "that Saturday" by
asking "to put the Bragg [run] to the extra board and [to] let [him] choose on the extra board as
far as local[ ] [runs]," his position is that the company denied this request, terminated his
previously awarded bid package, and placed him at the bottom of the extra board. Morrisette
Dep. (ECF No. 22-1, at 4-5).
He asserts that other non-disabled drivers were permitted to
maintain their bids despite being unable to complete required runs that were a part of their bid
packages. He also claims shop rules related to interpretation of the CBA did not prohibit run
swaps. (ECF No. 22, at 3) (citing Morrisette Dep. (ECF No. 22-1, at 7-8); Digioia Dep. (ECF
No. 22-2, at 5-12)).
As a result, he claims both direct discrimination and a failure to
accommodate his medical condition.
In contrast, SpartanNash's position is that before Morrisette bid on the package, he did
not inform the company that his medical condition would prevent him from performing the Fort
Bragg run, and he did not ask for an accommodation. Digioia Decl. K 6 (ECF No. 20-1, at 2).
SpartanNash also asserts that contrary to the company's policy, Morrisette offered his Fort Bragg
run to other drivers without informing Digioia or the dispatcher. Id H7. Because Morrisette was
unable to perform part of his bid package, the company's position is that "Digioia deemed
Morrisette to have declined to perform his bid" and for this reason, removed him from the bid
package and placed him at the bottom of the extra board until the next bid. Def.'s Br. (ECF No.
20, at 7). The company also distinguishes the non-disabled drivers who were allowed to keep
their bids, claiming the other drivers did not enter into the bid process intending to permanently
reassign portions of the bid package to other drivers. Def.'s Reply Br. (ECF No. 23, at 7).
B.
SpartanNash's Knowledge About Morrisette's Pending Lawsuit as a Basis for
Retaliation.
With regard to Morrisette's claim that SpartanNash retaliated against him by reducing the
number of port drivers, SpartanNash asserts that the company reduced the number of port drivers
for legitimate business reasons.
Specifically, the company states that prior to July 2015,
SpartanNash dispatched its port work out of the company's Village Avenue facility. Dep. of
Guy Gross (ECF No. 20-15, at 2). In July 2015, Regional Director Sam Tramatan transferred all
dispatch work to the Kingwood Avenue facility in order "have a better eye on it." Id at 2-3.
After transferring the dispatch work, "management noticed flaws in the process," including "an
incredible amount of delay time between runs as drivers were getting paid ... [to] wait[ ] for their
next load to take to the ports." Gross Decl. U 10 (ECF No. 20-4, at 2). SpartanNash determined
that it "could take the same number of containers to the port with less drivers," and therefore
reduced the number of port drivers from ten to seven, placing the three most junior drivers on the
extra board. Id TH 10-11. Morrisette was the eighth driver in seniority, and thus his port-run bid
was the last to be cancelled.
The company also claims that the decision-maker who eliminated Morrisette's port-run
bid did not know about his lawsuit, and therefore could not have retaliated against him because
of it. In his declaration, Gross, SpartanNash's Transportation Manager, states that when "[he]
drafted a letter to all drivers informing them that the number of port drivers was being reduced
from 10 to 7 ... [he] had no idea that Mr. Morrisette had filed a lawsuit in federal court against
SpartanNash." l i t 11.
Morrisette contests SpartanNash's characterization of the reduction in drivers. He states
that SpartanNash reduced the number of port drivers less than sixty days after a new bid started
on May 10, 2015. PL's Br. (ECF No. 22, at 4) (citing Gross Dep. (ECF No. 20-4, at 6)). He has
also produced evidence to suggest that any reduction in port runs came after the company had
made the decision to reduce the number of drivers used, and that the reduction in runs was
substantially less - as a percentage - than the reduction in drivers. Id at 14-15 (discussing the
8
decline in port runs versus the elimination of drivers). Finally, Morrisette asserts that Gross's
statement in his declaration contradicts his deposition testimony regarding his knowledge of
Morrisette's lawsuit against SpartanNash. Id at 4. That is, in his declaration, Gross states that
he did not know about the pending lawsuit, but in his deposition, he stated that in June 2015 he
"heard [Morrisette] filed a lawsuit." Id (citing Gross Decl. U 11 (ECF No. 3); Gross Dep. (ECF
No. 20-4, at 6)).
III.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56 requires the court to grant a motion for summary
judgment if "the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986). "A material fact is one 'that might affect the outcome of
the suit under the governing law.' A disputed fact presents a genuine issue 'if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.' "
Spriggs v.
Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson v. Liberty Lobby,
Inc.. 477 U.S. 242, 248 (1986)).
The party seeking summary judgment has the initial burden of informing the court of the
basis of its motion and identifying materials in the record it believes demonstrates the absence of
a genuine dispute of material fact. Fed. R. Civ. P. 56(c); Celotex Corp.. 477 U.S. at 322-25.
When the moving party has met its burden to show that the evidence is insufficient to support the
nonmoving party's case, the burden shifts to the nonmoving party to present specific facts
demonstrating that there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp.. 475 U.S. 574, 586-87 (1986). The "mere existence of a scintilla of evidence in support of
the [nonmovant's] position will be insufficient." Anderson. 477 U.S. at 252. Rather, when "the
record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,
there is no genuine issue for trial." Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (internal
quotation marks omitted).
In considering a motion for summary judgment, "the court must draw all reasonable
inferences in favor of the nonmoving party, and it may not make credibility determinations or
weigh the evidence." Reeves v. Sanderson Plumbing Prods.. Inc.. 530 U.S. 133, 150 (2000); see
Anderson. 477 U.S. at 255. That is, "at the summary judgment stage the judge's function is not
himself to weigh the evidence and determine the truth of the matter but to determine whether
there is a genuine issue for trial." Anderson, 477 U.S. at 249.
IV.
A.
ANALYSIS
Disputes of Material Fact Preclude Summary Judgment on Morrisette's Claim of
Discrimination and Failure to Accommodate.
Morrisette first claims that SpartanNash discriminated against him because of his
disability when it learned he was arranging for other drivers to perform his Fort Bragg run and
terminated his bid, placing him at the bottom of the extra board. To prove a claim of disability
discrimination under the Americans with Disabilities Act ("ADA"), a Plaintiff must introduce
evidence (1) that he has a disability; (2) that he is a qualified individual for the employment in
question; and (3) that he was subject to adverse employment action because of his disability.
Jacobs v. N.C. Admin. Office of the Courts. 780 F.3d 562, 572 (4th Cir. 2015). A discrimination
claim may be proven through direct or indirect evidence, or using the McDonnell Douglas
framework.
See McDonnell Douglas Corp. v. Green. 411 U.S. 792 (1973).
Under this
framework, the Plaintiff must first satisfy an initial burden by presenting evidence to establish a
prima facie case of discrimination, and the burden then shifts to the employer to articulate a
10
legitimate, nondiscriminatory reason for the adverse employment action. See Raytheon Co. v.
Hernandez. 540 U.S. 44, 49 n.3, 49-50 (2003).
Once the employer offers a legitimate
nondiscriminatory reason for the action, the burden shifts back to the Plaintiff to prove that the
employer's asserted reasons are pretextual. Jacobs. 780 F.3d at 575-76; Ennis v. NatT. Ass'n. of
Bus. & Educ. Radio. Inc.. 53 F.3d 55, 58 (4th Cir. 1995).
At this stage of the proceedings, it is not necessary to decide whether Morrisette has
sufficient direct evidence of disparate treatment, because under the McDonnell Douglas
framework, he has presented sufficient evidence to create a dispute of material fact precluding
summary judgment. Here, Morrisette has met his burden to prove a prima facie case by offering
proof that his bid was terminated, and that he was placed at the bottom of the extra board
because he could not complete his Fort Bragg runs. He has also introduced evidence that he
could not complete the long runs due to his disability.
SpartanNash, however, claims that
Morrisette was moved to the extra board because he made the bid knowing that he could not
completely perform it, and that the company's CBA prohibited the individual parsing of bids,
which Morrisette had tried to do. This legitimate nondiscriminatory basis for the change is
sufficient to rebut the charge of discrimination. But Morrisette has also produced sufficient
evidence from which reasonable jurors could conclude that the employer's proffered rationale
was pretextual, and that his bid was terminated as a result of his disability.
Specifically,
Morrisette identified two other drivers who had chosen bids they did not fully perform, but did
not have their bids terminated.
He also identified documents suggesting the CBA did not
explicitly prohibit run swapping.
Morrisette identified Johnny Reed and Anthony Coleman as two other drivers who were
permitted to maintain their bids despite their inability to perform all of the runs they included.
11
Although the company offers distinguishing characteristics with respect to both drivers, it has not
disputed Morrisette's underlying claim that both were permitted to maintain their bids while
other drivers performed scheduled runs that were part of those bids. Specifically, Reed solicited
other drivers to perform the Fort Bragg runs that were a portion of his bid for a period of at least
seven weeks. The company has not really contested the records of Reed's run swapping. It
speculates that SpartanNash may have exercised its right to re-allocate drivers to meet emergent
customer needs, but ultimately does not dispute Morrisette's claim that Reed was permitted to
maintain his bid despite repeatedly giving up the Fort Bragg run to other drivers.
Similarly,
Coleman was unable to perform port runs associated with his bid as a result of a delay in
obtaining an appropriate clearance, but was permitted to retain his bid. Again, SpartanNash does
not dispute that the port clearance prevented Coleman from performing his runs, but points out
that the clearance issue was expected to be resolved promptly, and was extended because of an
unexpected delay in the agency processing his request. While the jury may well agree that these
differences place Coleman and Reed in a different category, Morrisette may nonetheless rely on
these similarly situated drivers to meet his burden on summary judgment.
Finally, Morrisette also offered evidence that the rule prohibiting drivers from switching
routes was implemented after Morrisette's bid was terminated and prior to the rebid of jobs in
April 2014. Digioia Dep. (ECF No. 22-2, at 19-20); Ex. 17 (ECF No. 22-3, at 1). As a result,
Morrisette has established evidence sufficient to create a dispute of material fact regarding the
company's decision to cancel his bid and transfer him to the bottom of the extra board.
Morrisette also claims he was discriminated against when SpartanNash failed to
reasonably accommodate his disability with a more flexible driving schedule. See 42 U.S.C. §
12112(b)(5)(A)-(B). To establish a prima facie case for failure to accommodate, Morrisette must
12
show: "(1) that he was an individual who had a disability within the meaning of the statute; (2)
that the [employer] had notice of his disability; (3) that with reasonable accommodation he could
perform the essential functions of the position ...; and (4) that the [employer] refused to make
such accommodations."
Wilson v. Dollar Gen. Corp.. 717 F.3d 337, 345 (4th Cir. 2013)
(alteration in original). A reasonable accommodation is one "that enables a qualified individual
with a disability ... to perform the essential functions of [a] position." Jacobs. 780 F.3d at 580.
An employer may reasonably accommodate an employee without providing the exact
accommodation that the employee requested. Revazuddin v. Montgomery Ctv.. Md.. 789 F.3d
407, 415 (4th Cir. 2015). But a reasonable accommodation must "provide a meaningful equal
employment opportunity ... [meaning] an opportunity ... to attain the same level of performance
as is available to nondisabled employees having similar skills and abilities." Id at 416 (quoting
H.R. Rep. No. 101-485, pt. 2, at 66 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 349).
Morrisette's failure to accommodate claim is also directed to the company's initial
decision to terminate his bid. At that time, in January 2014, Morrisette claims he asked if he
could be permitted to place his Fort Bragg run on the extra board and drive another run on
Saturday within his restrictions. Morrisette Dep. (ECF No. 22-1, at 4-5). The company denied
this request. SpartanNash defends its accommodation by pointing to a change that occurred four
months later during the rebid process. But even accepting the company's claims that this rebid
allowed Morrisette to receive equivalent work, he has still created a jury issue on whether the
company's failure to permit the bid modification denied him reasonable accommodation. The
company defends its initial decision to terminate the bid by arguing that Morrisette's plan to
reassign his Fort Bragg run would violate the CBA. But as discussed above, there is a dispute of
fact concerning the company's previous accommodation of such requests, and at least two other
13
drivers in similar circumstances were permitted to maintain their bids.
At the summary
judgment stage, Morrisette must only show that the accommodation he proposed "seems
reasonable on its face." U.S. Airways v. Barnett. 535 U.S. 391. 401-02 (2002). Moreover, the
statute specifically anticipates that accommodation may require job restructuring, or
modification of work schedules and policies. 42 U.S.C. § 12111(9)(B).
This is not to say that SpartanNash can be forced to accept Morrisette's preferred
modification if another accommodation is also reasonable.
"[T]he employer providing the
accommodation has the ultimate discretion to choose between effective accommodations, and
may choose the less expensive accommodation or the accommodation that is easier for it to
provide." Hankins v. The Gap. Inc.. 84 F.3d 797, 800 (6th Cir. 1996) (quoting Interpretive
Guidance on Title 1 of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, app. at 415
(2014)).
But at this stage of the proceedings, Morrisette's proposed accommodation was
"reasonable on its face," and the company's decision to terminate his bid creates a jury issue on
reasonable accommodation for that period of time until the rebid occurred.
B.
Disputes of Material Fact Preclude Summary Judgment on Morrisette's Retaliation
Claim.
In Morrisette's second claim, he asserts that SpartanNash retaliated against him by
eliminating his port-run bid after he filed an EEOC charge and present lawsuit against the
company. Am. Compl. ffl| 23-26 (ECF No. 11, at 5-6). Defendant SpartanNash argues that it is
entitled to summary judgment on this claim because "Morrisette cannot establish a causal
connection between the reduction in the number of port drivers from 10 to 7 and the service of
his lawsuit on SpartanNash on July 27, 2015." Def.'s Br. (ECF No. 20, at 18). Morrisette
disputes this, citing evidence that the decision-maker knew about his prior lawsuit. (ECF No. 22,
14
at 13-15). In addition, he claims the reason provided by SpartanNash was simply a pretext. Id
With regard to retaliation, the ADA states that "no person shall discriminate against any
individual because such individual has opposed any act or practice made unlawful by this chapter
or because such individual made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203(a). "[T]o prevail
on a claim of retaliation, a plaintiff must either offer sufficient direct and indirect evidence of
retaliation, or proceed under a burden-shifting method."
Rhoads v. FDIC. 257 F.3d 373, 391 (4th Cir. 2001)).
Jacobs. 780 F.3d at 577 (quoting
Regardless of "[w]hether a plaintiff
proceeds by direct evidence or McDonnell Douglas burden-shifting, [a Plaintiff] must show (i)
that she engaged in protected activity and, (ii) because of this, (iii) her employer took an adverse
employment action against her." Id.
SpartanNash argues - and Morrisette appears to concede - that there is "no direct
evidence of retaliation," and in the absence of direct evidence, the McDonnell Douglas
framework applies. (ECF No. 20, at 18) (citing Jacobs. 780 F.3d at 578); (ECF No. 22, at 13-
14). Under the McDonnell Douglas framework, to establish a prima facie case of retaliation, the
Plaintiff must show: "(1) that [he] engaged in protected activity; (2) that [his] employer took an
adverse action against [him]; and (3) that a causal connection existed between the adverse
activity and the protected actions." Jacobs. 780 F.3d at 578 (citing Haulbrook v. Michelin N.
Am.. 252 F.3d 696, 706 (4th Cir. 2001)). If the Plaintiff proves these three elements, "[t]he
employer then has the burden 'to rebut the presumption of retaliation by articulating a legitimate
nonretaliatory reason for its actions.' " Id (quoting Rhoads. 257 F.3d at 392)). "The burden
then shifts back to the plaintiff to show that the proffered reason is pretext."
Id.
In this
framework, the Plaintiff "always bears the ultimate burden of persuading the trier of fact that
15
[he] was the victim of retaliation." Id; see Stalev v. Gruenberg. 575 Fed. Appx. 153, 155 (4th
Cir. 2014) (" '[Plaintiff retains] the ultimate burden of persuading the trier of fact,' that her
engagement in the protected activities was a 'but for' cause of her non-conversion to permanent
status." (citations omitted)).
In the present case, the parties agree that Morrisette is able to show the first two elements
of retaliation under the McDonnell Douglas framework. Specifically, as to the first element, the
parties agree that Morrisette engaged in protected activity when he asked for an accommodation
for his disability and when he filed his EEOC charge and lawsuit. See (ECF No. 20, at 18-19);
(ECF No. 22, at 13-14). And, with regard to the second element, SpartanNash does not dispute
that the company reduced the number of port drivers from ten to seven, resulting in an adverse
action against Morrisette because he was one of the three drivers whose regular bid was
terminated. See (ECF No. 20, at 19); (ECF No. 22, at 13-15). However, the parties dispute the
third element - causation. That is, SpartanNash argues that Morrisette is not able to show a
causal connection between the protected activity and the adverse action.
To establish causation, "[t]emporal proximity between protected activity and the adverse
employment action ... [is viewed as] 'highly suspicious' and 'give[s] rise to a strong inference of
discrimination.' "
Smith v. Straver Univ. Corp.. 79 F. Supp. 3d 591, 605 (E.D. Va. 2015)
(quoting Weth v. O'Learv. 796 F. Supp. 2d 766, 782 (E.D. Va. 2011)). Here, Morrisette filed his
present lawsuit against SpartanNash in May 2015, and he perfected service on the company on
July 27, 2015. See (ECF No. 1); see also (ECF No. 3). Three days later, on July 30, 2015,
SpartanNash sent a letter notifying all drivers that the company planned to reduce the number of
port drivers from ten to seven drivers. (ECF No. 20-4, at 48). Morrisette was the last of the
three drivers whose port runs were eliminated. As stated above, temporal proximity creates a
16
strong inference of discrimination, and here, SpartanNash eliminated Morrisette's port run
package within three days of receiving service of his lawsuit. Moreover, although some courts
have held that a Plaintiff must show more than temporal proximity to establish causation under
the McDonnell Douglas framework, these cases involve employees who, unlike Morrisette, had
previously documented work performance issues. See, e.g.. Staley. 575 Fed. Appx. at 156
(noting that although the employee's nonconversion to a permanent position occurred shortly
after she filed a formal EEOC complaint, "the record reveals that [the employee] was not
converted to permanent status because she disregarded ... company policy, was disrespectful to
supervisors, and demonstrated poor judgment"); Straver Univ. Corp., 79 F. Supp. 3d at 605
("The facts here are undisputed. Plaintiff knew for over a month before she filed her formal
request for accommodation that her job was in jeopardy. Her performance did not improve
during this period of time. She even considered herself an ineffective employee. Based on these
undisputed facts, Plaintiff cannot establish the causal connection necessary between her request
for accommodation and her termination."). Accordingly, the court finds that in Morrisette's
case, the close temporal proximity between the protected activity and adverse activity establishes
a disputed issue of fact as to causation, and a reasonable jury could conclude that Morrisette has
established a prima facie case of retaliation.
Under the McDonnell Douglas burden-shifting framework, the court next assesses
whether SpartanNash is able to rebut this presumption of retaliation by articulating a legitimate
nonretaliatory reason for its actions. See Jacobs. 780 F.3d at 578 (citing McDonnell Douglas
Corp., 411 U.S. 792).
SpartanNash first claims that the company could not have retaliated
against Morrisette because the decision-makers did not know that Morrisette had filed a lawsuit
against the company. See (ECF No. 20, at 18-19). Morrisette disputes SpartanNash's claim that
17
the decision-makers did not know about his lawsuit, and from the evidence presented by
Morrisette, the court finds that reasonable jurors could determine that the decision-makers were
aware of Morrisette's suit before terminating his port-run bid package. See Gross Decl. ^| 11
(ECF No. 20-4, at 3); Gross Dep. (ECF No. 20-4, at 6). SpartanNash's second explanation is
that the company reduced the number of port drivers for economic reasons, citing a decline in the
number of port runs performed by the company. See Def.'s Reply Br. (ECF No. 23, at 14-16)
(citing (ECF No. 20-4, at 46-47)).
Although the company has stated a possible legitimate
nonretaliatory reason for the reduction in port drivers, the court finds that reasonable jurors could
conclude that SpartanNash's proffered economic rationale was pretextual.
Specifically,
Morrisette presents evidence suggesting that the company decided to reduce the number of
drivers used before it had suffered any decline in the number port runs. See (ECF No. 22, at 15)
(citing Exhibit B attached to Gross's Declaration (ECF No. 20-4, at 48)). Morrisette also argues
that the reduction in runs was substantially less - as a percentage - than the reduction in drivers.
Id. Because Morrisette was eighth in seniority, an economically driven reduction from 10 to 9 or
8 port drivers would not have affected him.
The court therefore finds that Morrisette has
presented sufficient evidence of pretext such that a reasonable jury could conclude that
SpartanNash retaliated against Morrisette in deciding to eliminate his fixed bid of port runs.
Because the court finds that a reasonable jury could conclude that Morrisette has
established a prima facie claim of retaliation and presented sufficient evidence of pretext, the
court finds that genuine disputes of material fact preclude summary judgment on this claim.
18
V.
CONCLUSION
For the foregoing reasons, the court DENIES Defendant SpartanNash's Motion for
Summary Judgment (ECF No. 19).
IT IS SO ORDERED.
®£>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?