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Rayford v. Walmart Stores, Inc.

United States District Court, S.D. Alabama, Southern Division

July 5, 2017

TERRA N. RAYFORD, Plaintiff,



         This 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), [1] and the motion is ripe for resolution. After careful consideration, the Court concludes the motion is due to be granted in part and denied in part.


         According 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 (“ADA”).[2]


         Summary 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).

         “If 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 608.

         “If, 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 ….”).

         In 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).

         There is no burden on the Court to identify unreferenced evidence supporting a party's position.[3] 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 advanced.

         The 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).

         I. Exhaustion.[4]

         “A 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).

         “[A] 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).[5] 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.

         The 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 further.[6]

         II. Reasonable Accommodation.

         “[T]he 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).

         The 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).

         The 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).

         The 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 ...

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