United States District Court, S.D. Alabama, Southern Division
TERRA N. RAYFORD, Plaintiff,
WALMART STORES, INC., Defendant.
WILLIAM H. STEELE UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendant's motion for
summary judgment. (Doc. 50). The parties have submitted
briefs and evidentiary materials in support of their
respective positions, (Docs. 51, 52, 55-57),  and the motion is
ripe for resolution. After careful consideration, the Court
concludes the motion is due to be granted in part and denied
to the complaint, (Doc. 1), the pro se plaintiff was
employed by the defendant from November 15, 2014 to April 15,
2015. Although it knew when the plaintiff was hired that she
had ulcerative colitis, spinal stenosis and multiple
herniated discs, the defendant did not reasonably accommodate
these conditions but instead subjected her to a hostile work
environment and ultimately terminated her, all in violation
of the Americans with Disabilities Act
judgment should be granted only if “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). The
party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials
on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats
& Clark, Inc., 929 F.2d 604, 608 (11th
Cir. 1991). The moving party may meet its burden in either of
two ways: (1) by “negating an element of the non-moving
party's claim”; or (2) by “point[ing] to
materials on file that demonstrate that the party bearing the
burden of proof at trial will not be able to meet that
burden.” Id. “Even after
Celotex it is never enough simply to state that the
non-moving party cannot meet its burden at trial.”
Id.; accord Mullins v. Crowell, 228 F.3d
1305, 1313 (11th Cir. 2000); Sammons v.
Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
the party moving for summary judgment fails to discharge the
initial burden, then the motion must be denied and the court
need not consider what, if any, showing the non-movant has
made.” Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993); accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at
however, the movant carries the initial summary judgment
burden ..., the responsibility then devolves upon the
non-movant to show the existence of a genuine issue of
material fact.” Fitzpatrick, 2 F.3d at 1116.
“If the nonmoving party fails to make ‘a
sufficient showing on an essential element of her case with
respect to which she has the burden of proof, ' the
moving party is entitled to summary judgment.”
Clark, 929 F.2d at 608 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted);
see also Fed. R. Civ. P. 56(e)(2) (“If a party
fails to properly support an assertion of fact or fails to
properly address another party's assertion of fact as
required by Rule 56(c), the court may … consider the
fact undisputed for purposes of the motion ….”).
deciding a motion for summary judgment, “[t]he
evidence, and all reasonable inferences, must be viewed in
the light most favorable to the nonmovant ….”
McCormick v. City of Fort Lauderdale, 333 F.3d 1234,
1243 (11th Cir. 2003). “Therefore, the
plaintiff's version of the facts (to the extent supported
by the record) controls, though that version can be
supplemented by additional material cited by the defendants
and not in tension with the plaintiff's version.”
Rachel v. City of Mobile, 112 F.Supp.3d 1263, 1274
(S.D. Ala. 2015), aff'd, 633 Fed.Appx. 784
(11th Cir. 2016).
is no burden on the Court to identify unreferenced evidence
supporting a party's position. Accordingly, the Court
limits its review to the exhibits, and to the specific
portions of the exhibits, to which the parties have expressly
cited. Likewise, “[t]here is no burden upon the
district court to distill every potential argument that could
be made based upon the materials before it on summary
judgment.” Resolution Trust Corp. v. Dunmar
Corp., 43 F.3d 587, 599 (11th Cir. 1995);
accord Gennusa v. Canova, 748 F.3d 1103, 1116
(11th Cir. 2014). The Court accordingly limits its
review to those arguments the parties have expressly
defendant admits that the plaintiff has ulcerative colitis
and spinal stenosis, and for present purposes it concedes
that these conditions constitute disabilities within the
contemplation of the ADA. The defendant also concedes for
present purposes that the plaintiff was otherwise qualified
to perform her job in the specialized sense applicable to ADA
cases. (Doc. 51 at 4, 14-15).
discriminatory act which is not made the basis for a timely
charge is the legal equivalent of a discriminatory act which
occurred before the statute was passed. ... [I]t is merely an
unfortunate event in history which has no present legal
consequences.” United Air Lines, Inc. v.
Evans, 431 U.S. 553, 558 (1977). “Failure to file
a timely complaint with the EEOC mandates the dismissal of
the Title VII suit.” Wilson v. Bailey, 934
F.2d 301, 304 n.1 (11th Cir. 1991). What is true
under Title VII is equally true under the ADA. E.g.,
Fikes v. Wal-Mart, Inc., 322 Fed.Appx. 882, 884
(11th Cir. 2009). The defendant asserts that the
plaintiff failed to file a timely charge as to any claim
other than discriminatory termination. (Doc. 51 at 11-14).
plaintiff's judicial complaint is limited by the scope of
the EEOC investigation which can reasonably be expected to
grow out of the charge of discrimination.” Gregory
v. Department of Human Resources, 355 F.3d 1277, 1280
(11th Cir. 2004) (internal quotes omitted).
Identifying the charge and its contents is thus the critical
first step in the analysis. The defendant identifies a
particular document as the plaintiff's EEOC charge. (Doc.
52-1 at 45). The defendant, however, has failed to meet
its initial burden on motion for summary judgment of
demonstrating that this is in fact the relevant document.
EEOC's right-to-sue letter is dated October 16, 2015.
(Doc. 1 at 4; Doc. 52-1 at 46). However, the document the
defendant identifies as the charge is dated October 28, 2015
and is stamped as received by the EEOC on October 30, 2015.
(Id. at 45). The defendant has not explained how the
EEOC could have issued a right-to-sue letter before receiving
the charge on which the issuance of the right-to-sue letter
was based. On the face of things, the document on which the
defendant relies cannot be the relevant charge; certainly the
defendant has failed to demonstrate the absence of any
genuine issue of fact as to what constitutes the charge.
Because the defendant's exhaustion argument fails at this
threshold point, the Court need not consider the argument
duty to provide a reasonable accommodation is not triggered
unless a specific demand for an accommodation has been made
….” Gaston v. Bellingrath Gardens &
Home, Inc., 167 F.3d 1361, 1363 (11th Cir.
1999). “[A]t a minimum, the employee must request some
change or adjustment in the workplace and must link
that request to his disability, rather than simply presenting
the request in a vacuum.” Williamson v. Clarke
County Department of Human Resources, 834 F.Supp.2d
1310, 1320 (S.D. Ala. 2011) (emphasis in original). The
defendant argues that the plaintiff did not make such a
linked request and therefore did not trigger any duty on the
defendant to accommodate her disability. (Doc. 51 at 19-20).
plaintiff was employed as a cashier under the supervision of
assistant store manager Tedie Mulligan. (Doc. 52-3 at 2).
According to the defendant's evidence, the
plaintiff's ulcerative colitis would flare up and require
emergency trips to the restroom. (Doc. 52-1 at 17, 34-35).
According to the defendant's evidence, the registers
closest to the restroom were less busy than other registers
and more likely to have interludes with no one in line,
during which a cashier could turn off the light, log out and
go to the restroom. (Id. at 18, 35). According to
the defendant's evidence, when the plaintiff first
started work, she talked to Mulligan, who told her that, on
bad days when her stomach was bothering her, she should ask
the lower-tier supervisors to put her on those registers
since she would have to be running to the bathroom a lot.
(Id. at 17-18, 34-35).
defendant asserts that the plaintiff did not tell Mulligan
the reason she requested to work the less busy registers was
her ulcerative colitis and that she therefore did not
“link” her accommodation request to her
disability. (Doc. 51 at 19-20). However, the plaintiff's
testimony discussed above contradicts the defendant's
contention. Mulligan herself, in testimony relied upon by the
defendant, testified that the plaintiff told Mulligan she
preferred to work on a register near the restroom “due
to a medical condition.” (Doc. 52-3 at 6).
defendant notes that, when the plaintiff made this request
for accommodation, Mulligan told her to go to Human Resources
and to bring to Mulligan medical documentation of her
condition. (Doc. 52-3 at 6). The defendant says the plaintiff
never did either, (Doc. 51 at 19), but the testimony on which
it relies says only that the plaintiff did not ...