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Sanders v. Wal-Mart Stores East, LP

United States District Court, M.D. Alabama, Northern Division

January 19, 2018

MORRIS SANDERS, Plaintiff,
v.
WAL-MART STORES EAST, LP, Defendant. MORRIS SANDERS, Plaintiff,
v.
WAL-MART STORES EAST, LP, Defendant.

          REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

          GRAY M. BORDEN, UNITED STATES MAGISTRATE JUDGE

         Pursuant to 28 U.S.C. § 636(b)(1), this case was referred to the undersigned United States Magistrate Judge for review and submission of a report with recommended findings of fact and conclusions of law. Doc. 3. On August 2, 2016, Plaintiff Morris Sanders, proceeding pro se, brought suit alleging a number of claims arising out of his employment at a Walmart retail store in Selma, Alabama. Doc. 1. Sanders filed an amended complaint on December 2, 2016. Doc. 24. On January 12, 2017, Sanders filed a separate--though closely related--lawsuit, which was consolidated with this action on March 3, 2017. See Doc. 34. At this time, both the Amended Complaint (Doc. 24) in the lead case and the Equal Employment Opportunity Commission (“EEOC”) Complaint (Doc. 1) in the member case are Sanders' operative pleadings.[1]

         Now before the court is the Motion for Judgment on the Pleadings or in the Alternative Motion for Summary Judgment filed by Defendant Wal-Mart Stores East, L.P. ("Walmart"). Doc. 57. Walmart has also filed a motion to strike (Doc. 71) portions of an affidavit Sanders submitted in support of his claims. With briefing complete, the motions are now ripe for disposition. After careful consideration of the parties' submissions, the applicable law, and the record as a whole, the undersigned recommends that the motion for judgment on the pleadings (Doc. 57) be GRANTED in part and DENIED in part, that the motion for summary judgment (Doc. 57) be GRANTED, and that all of Sanders' claims be DISMISSED with prejudice. The undersigned further recommends that the objections contained in the motion to strike (Doc. 71) be SUSTAINED in part and OVERRULED in part, as explained below.

         I. JURISDICTION AND VENUE

         The court has subject-matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3). The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations to support both.[2]

         II. STANDARDS OF REVIEW

         A. Motion to Strike

         Walmart seeks an order striking portions of Sanders' affidavit (Doc. 69-1). Under Rule 12 of the Federal Rules of Civil Procedure, the "court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed.R.Civ.P. 12(f). But affidavits are not pleadings, so a motion to strike is not the proper vehicle for Walmart's stated goal. See Lowery v. Hoffman, 188 F.R.D. 651, 653 (M.D. Ala. 1999); Fed. R Civ. P. 7(a).

         However, federal courts "often treat a party's motion to strike certain evidence as an objection to that evidence's admissibility." Taylor v. City of Gadsden, 958 F.Supp.2d 1287, 1291 (N.D. Ala. 2013); see also Zottola v. Anesthesia Consultants of Savannah, P.C., 169 F.Supp.3d 1348, 1357 (S.D. Ga. 2013) ("[C]ourts tend to treat motions to strike as objections to the challenged portions of affidavits."); Ross v. Corp. of Mercer Univ., 506 F.Supp.2d 1325, 1333-34 (M.D. Ga. 2007) (same). This course of action is supported by the 2010 revision of Rule 56 of the Federal Rules of Civil Procedure, which now provides that a "party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Fed.R.Civ.P. 56(c)(2). It also allows the court to disregard portions of an affidavit or declaration if the remainder of the document is admissible. See, e.g., Short v. Mando Am. Cop., 805 F.Supp.2d 1246, 1265 (M.D. Ala. 2011). As a result, the court will construe Walmart's requests to strike as objections under Rule 56(c)(2) and will consider the objections simultaneously with the summary judgment motion.[3] See Taylor, 958 F.Supp.2d at 1291; Campbell v. Shinseki, 546 Fed.Appx. 874, 879 (11th Cir. 2013) ("The plain meaning of [the Rule 56 amendments] show[s] that objecting to the admissibility of evidence supporting a summary judgment motion is now part of summary judgment procedure, rather than a separate motion to be handled preliminarily.") (citation omitted).

         B. Motion for Judgment on the Pleadings

         "Judgment on the pleadings is appropriate where there are no material facts in dispute and the moving party is entitled to judgment as a matter of law." Palmer & Cay, Inc. v. Marsh & McLennan Cos., Inc., 404 F.3d 1297, 1303 (11th Cir. 2005) (citation and internal quotation marks omitted). This standard is functionally the same as the standard for a Rule 12(b)(6) motion to dismiss. See United States v. Bahr, 275 F.R.D. 339, 340 (M.D. Ala. 2011). Thus, the court must accept the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Mergens v. Dreyfoos, 166 F.3d 1114, 1117 (11th Cir. 1999). To avoid judgment on the pleadings, "a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

         C. Motion for Summary Judgment

         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." Fed.R.Civ.P. 56(a). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

         The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine [dispute] of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted). In responding to a properly supported motion for summary judgment, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Indeed, the non-movant must "go beyond the pleadings" and submit admissible evidence demonstrating "specific facts showing that there is a genuine [dispute] for trial." Celotex, 477 U.S. at 324 (internal quotation marks omitted). If the evidence is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

         When a district court considers a motion for summary judgment, it "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, and must resolve all reasonable doubts about the facts in favor of the non-movant." Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008) (citation and internal quotation marks omitted). The court's role is not 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. "If a reasonable fact finder evaluating the evidence could draw more than one inference from the facts, and if that inference introduces a genuine issue of material fact, then the court should not grant summary judgment." Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir. 2007) (citation omitted). Importantly, if the non-movant "fails to adduce evidence which would be sufficient... to support a jury finding for the non-movant, summary judgment may be granted." Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370 (11th Cir. 1997) (citation omitted).

         III. STATEMENT OF FACTS

         The following facts are undisputed except as noted. Sanders is a resident of Selma, Alabama, and has been employed by Walmart on three separate occasions, most recently from 2008 to 2016. Docs. 53-1 at 9 & 58-3 at 3. Sanders is a 51-year-old black man. Docs. 53-1 at 9-10 & 58-6 at 2.

         Walmart operates retail stores throughout the United States. Sanders worked at Walmart's store in Montgomery, Alabama, before he was transferred to Selma in February 2010. Doc. 24 at 3. Sanders has held a variety of positions, including overnight maintenance supervisor, consumer department manager, support manager, people greeter, and pharmacy sales associate. Doc. 24 at 3. Matthew Joiner[4] was the manager of Walmart's Selma location from September 19, 2015 to June 9, 2017, when Walmart transferred him to a different store. Doc. 58-2 at 2.

         A. Walmart's Leave and Accommodation Request Policies

         Under Walmart's leave policy, employees must submit certain documentation to Sedgwick, a third-party administrator that processes employee leave-of-absence requests. Doc. 58-3 at 6. When a Walmart employee requests leave-whether pursuant to the Family and Medical Leave Act ("FMLA") or otherwise-the request is conditionally approved pending the employee's submission of certification documentation. Doc. 58-2 at 3. Absences, late arrivals, or early departures (all of which Walmart categorizes as "exceptions") during the conditionally-approved time period may be retroactively approved or denied by Sedgwick. Doc. 58-2 at 3.

         Certain disability-related accommodation requests, on the other hand, may be approved by store management. Doc. 58-4 at 5. Otherwise, accommodation requests are referred to the Accommodation Service Center ("ASC"), a "department within Walmart that receives, processes and makes determinations on job accommodation requests that may not be authorized at the store level."[5] Doc. 58-4 at 3. When an employee requests an accommodation that cannot be approved in the store, management provides the requesting employee with a "Request for Accommodation Packet." Doc. 58-4 at 5. Included in the packet is a form entitled "Request for Accommodation, " which the employee must provide to ASC, as well as a medical questionnaire. Doc. 58-4 at 5. If an employee is unable to submit the request form, the store manager can either assist the employee with the form or communicate the accommodation request directly to ASC. Doc. 58-4 at 5.

         When ASC receives an accommodation request, it may or may not seek additional medical information from the employee. See Doc. 58-3 at 45 ("If the associate's disability or medical condition is known or otherwise obvious, ASC may not need to request medical information. Otherwise, medical information may be requested to help understand the nature of the associate's medical condition or disability . . . ."). Employees have 15 days to provide the requested information, and the accommodation request is administratively closed if the employee does not meet this deadline. Doc. 58-3 at 45. However, a new request may be submitted at any time. Doc. 58-3 at 45. If ASC determines that a requested accommodation is reasonable, it will approve the accommodation and inform the employee. Doc. 58-3 at 46. If ASC cannot identify a reasonable accommodation that would allow an employee to perform the essential functions of his or her job, it may recommend reassignment to a new position. Doc. 58-3 at 46. To be reassigned, the employee must be qualified for the position and able to perform the essential functions of the position with or without a reasonable accommodation. Doc. 58-3 at 46. If no position is immediately available, ASC will search at least once per week for 12 weeks for a suitable position. Doc. 58-3 at 47. While waiting for reassignment, an employee may use any paid time off or other income replacement benefits to which he or she is eligible. Doc. 58-3 at 46.

         The new position is generally equivalent in pay and level of responsibility to the requesting employee's current job, but it could be a lower-level position. Doc. 58-3 at 46. ASC will not create a new position to reassign an employee. Doc. 58-3 at 46. Employees also have the ability to seek reconsideration of ASC's reassignment determination. Doc. 58-3 at 47. If ASC has not identified a suitable position for reassignment within 12 weeks, the employee is terminated. See Doc. 58-3 at 46-47.

         B. Sanders' 2015 Accommodation Request

         Sanders has experienced back injuries since at least 2013. Docs. 24 at 3-4 & 69-1 at 1. He missed work after aggravating a job-related injury while on vacation in 2014, and upon his return he was limited to lifting objects weighing no more than 40 pounds. Doc. 24 at 4. Later, on October 7, 2015, while serving as a Customer Availability Process ("CAP") Team associate, Sanders filed an accommodation request seeking continuous leave from October 8, 2015 to October 28, 2015.[6] Doc. 58-10 at 2. The request was accompanied by a medical questionnaire from Sanders' physician indicating that Sanders could return to work but that he was limited to lifting no more than 10 pounds and could not pull, stretch, reach, or strain.[7] Docs. 24 at 5, 58-5 at 16 & 58-12. Because these restrictions interfered with Sanders' ability to perform the functions of the CAP Team associate position-which included lifting up to 50 pounds-ASC reassigned him to the position of people greeter on October 26.[8] Doc. 58-5 at 16. His reassignment request was then closed. Doc. 58-15. Sanders served as a greeter for approximately 12 weeks. Doc. 24 at 6.

         After he was reassigned, Sanders filed his first charge of discrimination with the EEOC on April 20, 2016. Doc. 58-6 at 2. In the EEOC charge, Sanders referenced his October 2015 accommodation request, stating that he had been subjected to discrimination on the basis of his disability. Doc. 58-6 at 2. After receiving a Dismissal and Notice of Rights-commonly known as a right-to-sue letter-from the EEOC on May 6, 2016, Sanders brought suit in this court on August 2, 2016.

         C. Sanders' 2016 Accommodation Request

         On March 5, 2016, Joiner promoted Sanders to the position of overnight maintenance supervisor. Docs. 58-2 at 3 & 58-3 at 3. In this role, Sanders became a department manager and his hourly pay increased from $11.74 to $13.41. Doc. 58-2 at 3. At some point thereafter, Sanders aggravated his back injury on the job while picking up a box. Doc. 24 at 6. As a result, Sanders made regular trips to his primary care physician and the emergency room. Doc. 24 at 7 & 58-1 at 47. Sanders requested FMLA leave and his primary-care physician, Dr. Singh, submitted a medical certification for intermittent leave from April 8, 2016 through March 31, 2017. Doc. 58-16. Sedgwick approved Sanders' request for intermittent leave, permitting "1-2 episode(s) per 4 Week(s) or 1 Month(s) with each episode lasting up to 8-16 Hour(s) or 1-2 Day(s)" from March 3, 2016 through September 2, 2016. Doc. 58-17 at 2. The letter from Sedgwick informed Sanders that the approval would expire on September 2 and that he would need to contact Sedgwick and prepare a medical certification form to request an extension. See Doc. 58-17 at 2. Walmart's leave policy in place at the time stated that a failure to submit certification in a timely fashion could result in a delay or denial of FMLA leave. See Doc. 58-3 at 36.

         This injury also forced Sanders to take conditionally-approved continuous leave from June 13, 2016 to July 12, 2016, after which he returned to work as an overnight maintenance supervisor. Doc. 58-2 at 4. Upon his return on August 15, 2016, Sanders was officially approved for normal duty by Dr. Michael Davis, a worker's compensation doctor to whom Walmart referred him. Docs. 58-2 at 10 & 69-1 at 3. Dr. Davis later approved Sanders for normal duty in September and October 2016.[9] Doc. 58-2 at 11-12. During this period and without permission from the store's management, Sanders began using an electric cart reserved for disabled customers in an effort to alleviate his pain. See Doc. 58-1 at 43. Eventually Sanders was directed by management not to use the cart because Walmart does not permit its employees to use customer carts. Doc. 58-1 at 47; see also Doc. 58-4 at 5. Sanders nevertheless continued to use the cart because he believed that other employees were doing so. Doc. 58-1 at 47 ("I felt like it was unfair that I was asked to get out when there [were] other people utilizing [the] cart."). Sanders believed a coworker named Cedric Hamilton was also using a customer cart, but does not know if Hamilton had permission or was also told not to use one. Doc. 58-1. Sanders assumed that Hamilton was permitted to use the cart because, unlike Sanders, he had not lodged prior complaints with the EEOC. Doc. 58-1 at 48. Joiner, however, had no knowledge of Hamilton ever using a cart. Doc. 58-2 at 5.

         Once Sanders' supervisors became aware that he was using the cart, assistant manager Marquis Willis informed Joiner of the situation. Doc. 58-2 at 4. Because this was not one of the accommodations that could be approved by store management, see Doc. 58-4 at 23, Joiner provided Sanders with an accommodation request form to submit to ASC. Doc. 58-2 at 4. Sanders could not submit the documentation, so Joiner notified ASC to open a formal accommodation request related to Sanders' desire to use the customer cart. Doc. 58-2 at 4; see also Doc. 58-18. While the request was pending, Joiner placed Sanders on a leave of absence. Doc. 58-2 at 4; see also Doc. 58-21. Joiner then contacted Joe Rubino, a manager at ASC, informing Rubino that Sanders believed that he could not perform his job without using the cart. See Doc. 58-2 at 16. After noting that Walmart "did not have any medical information that would justify keeping [Sanders] off work, " Rubino determined that Joiner should give him the choice of returning to work without use of the cart or applying for a leave of absence. Doc. 58-2 at 15. Rubino also informed Joiner that Sanders could bring in his own motorized cart as a job aid. See Doc. 58-2 at 18. Additionally, Sanders spoke directly with ASC. See Doc. 58-1 at 44.

         Eventually, Sanders abandoned this accommodation request and informed ASC and Joiner on October 6, 2016 that he wanted to return to work. See Docs. 58-1 at 48 & 58-2 at 5. Sanders terminated his request because he could not submit medical documentation demonstrating his need for an accommodation. See Doc. 58-2 at 5. In his deposition, Sanders gave two explanations for his inability to submit the documentation. First, he said that his own physician, Dr. Singh, was unable to complete the medical questionnaire because Sanders also had a worker's compensation physician assigned by Walmart. See Doc. 58-1 at 44 ("I think that's why he didn't fill it out, because I was under a worker's comp[ensation] doctor. That's probably why it didn't get filled out. I don't know for sure."). Alternatively, he stated that he was "instructed by Walmart" that he "could not use [his] personal physician, " and instead was referred by Walmart to Dr. Davis. Doc. 69-1 at 3; see also Doc. 58-1 at 44 ("[Sanders' primary care physician] don't [sic] override workmen's comp[ensation] doctor. So I had to go to [Dr. Davis] .... He don't do paperwork was his words [sic]."). According to Sanders, Dr. Davis declined to verify that his injury caused his prior absences and limited his ability to work. See Docs. 69-1 at 3 & 58-1 at 43 ("[T]here was a Walmart workmen's comp[ensation] doctor [Dr. Davis] and every time I [got] into specifics about my pain, he would leave out of the office and send his nurse in and send me out.").

         D. Termination

         On October 11, 2016, Joiner learned that Sanders' requested FMLA leave had been denied for all absences after September 6, 2016 because Sanders failed to provide the necessary medical recertification information.[10] Doc. 58-1 at 35-36; Doc. 58-2 at 5 & 20.

         Joiner was unsure which of Sanders' other leave requests Sedgwick had denied, so he checked ViaOne, the portal that tracks employee leave requests, to see which dates Sedgwick had approved and denied. Doc. 58-2 at 6. Joiner recorded each approval and denial and entered those dates into Walmart's employee attendance-tracking system. Doc. 58-2 at 6. Ultimately, Sedgwick denied Sanders' request for FMLA leave for three days in May, 16 days in June, nine days in July, 13 days in August, and 14 days in September 2016. Doc. 58-2 at 6. These denials increased Sanders' unexcused absences from eight to 63 during the six-month period from April to October 2016. Doc. 58-2 at 6.

         Walmart's Field Attendance and Punctuality Policy, which was implemented on March 5, 2016, tracks absences in terms of "occurrences." Doc. 58-3 at5. Under the policy, unexcused absences, late arrivals of more than two hours, and early departures of more than two hours result in one occurrence; absences without any advance warning result in three occurrences; and a late arrival or early departure of two hours or less results in half of an occurrence. Doc. 58-3 at 5-6. The policy states that an accumulation of nine or more occurrences in any rolling six-month period subjects an employee to termination. Doc. 58-3 at 6. The policy also warns employees that any leave requests denied by Sedgwick or accrued after the last-approved day of a leave-of-absence period count as occurrences unless the absences are otherwise authorized. Doc. 58-3 at 6.

         On October 28, 2016, Joiner and co-manager Angie Relph met with Sanders and terminated his employment. Doc. 58-2 at 7. Joiner informed Sanders that because Sedgwick had denied several previous leave-of-absence requests, he had accrued 63 unexcused occurrences, violating Walmart's attendance policy. Doc. 58-2 at 7. In his deposition, Sanders confirmed that he was told that he was terminated because of his violation of the attendance policy. Doc. 58-1 at 35.

         E. Sanders' Discrimination Allegations

         Sanders' complaints and deposition testimony are not models of clarity. In the First Complaint, Sanders alleges that in March 2015 he was placed on medical leave and replaced with a white employee, who apparently also had been injured, because Sanders wore braces on his back and neck. See Doc. 24 at 5. Sanders also cites to an "inappropriate encounter" with a manager, Ms. Peetsy, which occurred "in front of customers and other employees." Doc. 24 at 6. He claims that while working as an overnight maintenance supervisor in 2016, Joiner intentionally gave him physically demanding tasks despite knowing that he was injured. See Doc. 24 at 6-7 ("Soon, Mr. Joyner [sic] started leaving notes with overnight management that was [sic] designed to keep members of maintenance busy, in order to ensure that Plaintiff was personally performing the task that Mr. Joyner [sic] had assigned to Plaintiff"). Finally, Sanders alleges that Cedric Hamilton used the same type of customer cart that Sanders was prohibited from using. See Doc. 24 at 7 ("Cedric Hamilton had been [using a cart] prior to Plaintiff without filing for accommodations and had no complaints over his use.").

         In the second EEOC charge filed in December 2016, Sanders explained that two coworkers, "Sherman Pritchett and Janice, " had "attendance problem[s]" but were presumably not terminated. See Doc. 1-1 at 3 (17-cv-31). He also stated that he "felt like" Joiner "fav[ored] whites better than . . . [people] of color (Black)." Doc. 1-1 at 3 (17-cv-31). Sanders explained that Hamilton was permitted to use an employee cart because Hamilton is "light skin[ned]" and Joiner "seem[s] to have [a] problem with color." Doc. 1-lat3(17-cv-31).

         Many of these allegations are not mentioned in Sanders' evidentiary submissions, which consist of an affidavit and his deposition testimony. See generally Docs. 58-1 & 69-1. In the affidavit, Sanders stated that he was prescribed a back brace and repeated his assertion that Joiner assigned him physically demanding work while he was injured. Doc. 69-1 at 2. He also admitted to using carts reserved for disabled customers while the store was closed. Doc. 69-1 at 2. Finally, he alleged that Walmart would not permit him to see Dr. Singh for his 2016 accommodation request and that Dr. Davis gave short shrift to his complaints of pain while reporting that he was healthy enough to work. Doc. 69-1 at 3.

         When asked in his deposition to describe his evidence that Walmart's decision to terminate him was based on his disability, Sanders responded that "every time I asked for [an] accommodation ... I was sent home. They wouldn't allow me to be accommodated." Doc. 58-1 at 36. With regard to his first request for an accommodation in 2015, Sanders believes that the delay between his request and the reassignment constituted unlawful discrimination. See Doc. 58-1 at 37. Sanders did not dispute that he was terminated in 2016 for violating Walmart's attendance policy after accruing 63 unexcused absences as a result of denied leave requests. See Doc. 58-1 at 35-36. However, he testified that the termination was in retaliation for filing a charge of discrimination with the EEOC in April 2016, and that other employees also violated Walmart's attendance policy who were not terminated. See Doc. 58-1 at 38 & 42 (responding, when asked what evidence he has that his termination was due to the April 2016 EEOC charge, "Because I filed it"). Sanders did not explain when these coworkers broke Walmart's attendance policy, which policy was in effect when they did so, and how he knew that they had accrued more occurrences than they were allowed. See Doc. 58-1 at 38. He also testified that several coworkers' injuries were accommodated while he was not allowed to wear braces on his neck and back to work. See Doc. 58-1 at 39. However, Sanders admitted that no one at Walmart told him that he could not wear a brace at work. See Docs. 58-1 at 36 & 58-2 at 7.

         IV. ...


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