United States District Court, M.D. Alabama, Northern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE
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'
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.
JURISDICTION AND VENUE
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.
STANDARDS OF REVIEW
Motion to Strike
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).
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. 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.")
Motion for Judgment on the Pleadings
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).
Motion for Summary Judgment
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.
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
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
STATEMENT OF FACTS
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.
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 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.
Walmart's Leave and Accommodation Request
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.
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." 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.
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.
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.
Sanders' 2015 Accommodation Request
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. 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. 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. 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.
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.
Sanders' 2016 Accommodation Request
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.
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. 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
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
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.").
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. Doc. 58-1 at 35-36; Doc.
58-2 at 5 & 20.
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.
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.
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.
Sanders' Discrimination Allegations
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.").
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.
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.
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.