Wilson v. Dollar General Corporation et al

Filing 126

MEMORANDUM OPINION. Signed by Judge Jackson L. Kiser on 11/10/15. (ham)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
DANVILLE DIVISION
LAMONT WILSON,
Plaintiff,
v.
DOLLAR GENERAL CORPORATION,
DOLGENCORP, LLC, and DOLGEN,
LLC,
Defendants.

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Case No. 4:14-cv-00033
MEMORANDUM OPINION
By: Hon. Jackson L. Kiser
Senior United States District Judge

This matter came before the Court for trial on September 1, 2015. Following a one-day
bench trial on Plaintiff’s claim of retaliation in violation of the Americans with Disabilities Act,
see 42 U.S.C. § 12101, et seq. (2015) (“ADA”), the parties filed proposed Findings of Fact and
Conclusions of Law. For the reasons stated herein, judgment will be entered on behalf of
Defendants Dollar General Corporation, Dolgencorp, LLC, and Dolgen, LLC (collectively
“Defendants”).
I.

THE COURT’S FINDINGS OF FACT
Plaintiff Lamont Wilson (“Wilson”) is forty-two years old and is blind in his right eye.

In 2010, Defendant Dollar General (“Dollar General”) hired Wilson to work in its South Boston,
Virginia, warehouse.

During his initial employment with Dollar General, Wilson was an

exemplary employee.
In the winter of 2011, Wilson developed iritis in his left eye, his only good eye. On the
advice of his physician, Wilson took sick leave from his employment. While he was on sick
leave, Dollar General terminated Wilson’s employment.

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On June 15, 2011, Wilson filed suit against Defendants, alleging that they terminated his
employment in violation of the ADA. (See Compl., Wilson v. Dollar General Corp., et al., Case
No. 4:11-cv-00024 (W.D. Va. 2011).) I entered summary judgment for the defendants in that
suit, and my ruling was upheld by the Fourth Circuit Court of Appeals. See Wilson v. Dollar
General Corp., et al., 717 F.3d 337, 348 (4th Cir. 2013).
Shortly after the Fourth Circuit issued its opinion in Wilson’s prior case against
Defendants, Wilson decided to apply for an open position at Dollar General as a General
Warehouse Worker. At the time Wilson decided to reapply for employment, Dollar General had
moved to an entirely on-line application process.1 Wilson does not own a computer and is not
proficient in the use of computers. Wilson attempted to apply using his daughter’s mother’s
computer, but he was unable to complete the application process.

According to Wilson,

whenever he put his identifying information into the form and attempted to submit it, the online
portal would not accept his information.
In an effort to complete an online application, Wilson went to the Virginia Employment
Commission (“VEC”) on June 12, 2013, and requested the aid of a VEC counselor to assist him
in applying for the open position. Plaintiff and a VEC counselor sat down at a computer together
to complete the application.
The application contains two parts: a Gateway Questionnaire and an Assessment. The
Gateway Questionnaire solicits general information, such as an applicant’s name and
employment history. The Assessment contains various questions relating to the skills that are
required to perform the position for which the applicant is applying. The VEC counselor read

1

That process was not handled by Dollar General, but by Kenexa, a third-party company unaffiliated with
Defendants outside of its contractual relationship to manage Dollar General’s electronic application
management system.

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the Gateway Questionnaire to Wilson and typed his answers into the computer. Although some
of the information on the form was incorrect, that is immaterial to Defendants’ defense.
For the Assessment, the VEC counselor turned over control of the computer to Plaintiff,
and Plaintiff answered the questions. Plaintiff accurately recalls the format, content, and time
required to complete the Assessment, establishing that he did, in fact, begin and complete the
Assessment.

Defendants’ electronic records, which do not indicate that Plaintiff began or

completed the Assessment, are wrong on this point.
After completing the Assessment, Plaintiff relinquished control of the computer to the
VEC counselor; to the best of his knowledge, she submitted Plaintiff’s completed application.
Confirming that his application was completed, Plaintiff and the VEC counselor checked
Plaintiff’s e-mail and discovered an e-mail from Dollar General which read, in relevant part:
Thank you for the time you took applying for employment with
Dollar General. We have received your application for the
position 3410 GENERAL WAREHOUSE – South Boston VA
Distribution Center – 1037BR and are currently reviewing your
experience and qualifications. If your profile corresponds to our
requirements, a member of our team will be in contact with you.
...
Again, we thank you for your interest in Dollar General.
Dollar General Human Resources
(Pl.’s Ex. 1, Sep. 1, 2015.) That e-mail was false.2 Dollar General’s electronic records show,
however, that it sent Plaintiff another e-mail on June 14, 2013, which alerted Plaintiff that he had
not completed the Assessment. (Defs.’ Exs. 3 & 4, Sep. 1, 2015.) Plaintiff denies ever receiving
that e-mail.

2

Defendants attempt to avoid this conclusion by arguing, essentially, that “application” does not mean
“application,” but rather refers only to the Gateway Questionnaire. I disagree. Application plainly refers
to both parts of the application—the Gateway Questionnaire and the Assessment.

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As it turns out, through some human or computer error, Plaintiff’s Assessment was not
actually submitted to Defendants for consideration.
Plaintiff was not contacted by Dollar General again. According to relevant personnel
Amanda Dalton (who testified at the trial) and Henry Bruining (who passed away prior to trial
but whose testimony was admitted by affidavit), no one in Dollar General’s human resources
department was aware that Plaintiff had applied for a position.
On July 8, 2014, Plaintiff filed suit in this Court alleging that Defendants failed to hire
him in violation the ADA and in retaliation for filing his prior suit. After several pre-trial
motions, Plaintiff’s retaliation claim was tried by the Court on September 1, 2015. Both parties
submitted proposed findings of fact and conclusions of law.

This Memorandum Opinion

outlines the findings of the Court.
II.

CONCLUSIONS OF LAW
In order to succeed on his retaliation claim, “a plaintiff must show that: (1) he engaged in

a protected activity; (2) his employer acted adversely against him; and (3) the protected activity
was causally connected to the employer’s adverse action.” Coursey v. Univ. of Md. E. Shore,
577 F. App’x 167, 175 (4th Cir. 2014). “When those elements are satisfied, the burden shifts to
the employer ‘to rebut the presumption of retaliation by articulating a legitimate nonretaliatory
reason for its actions.’” Id. (quoting Rhoads v. F.D.I.C., 257 F.3d 373, 392 (4th Cir. 2001)). If
the employer satisfies that burden, “the plaintiff ‘must demonstrate that the proffered reason is a
pre-text for forbidden retaliation.’” Rhoads, 257 F.3d at 392 (quoting Haulbrook v. Michelin N.
Am., 252 F.3d 696, 706 (4th Cir. 2001)).
In the present case, Plaintiff has proven the elements of his prima facie case, and Dollar
General has offered a legitimate, non-retaliatory reason for its actions. Plaintiff’s evidence,

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however, fails to show that Dollar General’s reasons are false or are a pretext for discrimination.
The evidence does not establish that anyone at Dollar General ever reviewed Plaintiff’s
application. The facts establish that, although Plaintiff completed and submitted his Gateway
Questionnaire, he did not submit the Assessment as he thought. Dollar General’s electronic
application management system does not show any record of Plaintiff’s Assessment, and the
June 14 e-mail confirms that Dollar General did not receive Plaintiff’s Assessment. Because the
application management system was handled by a third-party, Defendants were unaware that
Plaintiff had submitted even part of the application.
Dollar General’s June 12 e-mail makes this conclusion more difficult. Dollar General
stated to Plaintiff that he had applied for a position and that his application was being reviewed.
At trial, Defendants’ position was that no one ever reviewed Plaintiff’s application. These
positions cannot be reconciled. The evidence, however, does not support the conclusion that
Plaintiff was passed over for improper reasons. Rather, the most that can be taken from evidence
is that Dollar General’s on-line application notification system is poorly designed.
Wilson was not the victim of unlawful retaliation. The evidence before the Court,
however, establishes that he was the victim of a grievously flawed and unnecessarily confusing
application process. Despite Defendants’ arguments to this Court, the June 12 e-mail was
blatantly false. If bad business practices were actionable, Plaintiff would be entitled to every
penny he seeks. But they are not. The facts do not establish that Dollar General as motivated by
some unlawful purpose; therefore, Dollar General is entitled to judgment in its favor on
Plaintiff’s retaliation claim.

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III.

CONCLUSION
Although Plaintiff completed both parts of his application for employment with Dollar

General, human or computer error resulted in Dollar General not receiving Plaintiff’s complete
application. The evidence does not establish that Dollar General’s actions were motivated by
some unlawful purpose, and therefore Defendants are entitled to judgment on Plaintiff’s claim of
retaliation under the ADA.
The clerk is directed to forward a copy of this Memorandum Opinion and accompanying
Order to all counsel of record.
Entered this 10th day of November, 2015.

s/Jackson L. Kiser
SENIOR UNITED STATES DISTRICT JUDGE

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