United States District Court, N.D. Alabama, Eastern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
disability discrimination case, two employees, one with
diabetes and one without, refused the same instructions, yet
only the diabetic employee suffered punishment for
insubordination. A jury-not the court on a motion for summary
judgment-must answer whether discrimination played a part.
matter comes before the court on Defendant Imerys
Carbonates's motion for summary judgment. (Doc. 39). In
the motion, Imerys asks the court to enter summary judgment
in its favor on Plaintiff Kenneth Thomas's ADA disability
discrimination and retaliation claims because, according to
Imerys, no genuine dispute exists that it terminated Mr.
Thomas for insubordination, not because of Mr. Thomas's
diabetes, and not in retaliation for Mr. Thomas requesting a
reasonable accommodation for his diabetes.
court will DENY the motion for summary judgment because, as
explained below, several genuine disputes of material fact
exist as to both Mr. Thomas's disability discrimination
and retaliation claims. Most notably, evidence that Imerys
did not scrutinize an employee without a disability who
engaged in the same conduct that led to Mr. Thomas's
termination, and evidence that Mr. Thomas may not have been
insubordinate or was insubordinate only to request an
accommodation, creates a genuine question of the true reason
for Mr. Thomas's termination.
STANDARD OF REVIEW
court can resolve a case on summary judgment only
when the moving party establishes two essential elements: (1)
no genuine disputes of material fact exist; and (2)
the moving party is entitled to judgment as a matter of law.
the first element of the moving party's summary judgment
burden, “‘[g]enuine disputes [of material fact]
are those in which the evidence is such that a reasonable
jury could return a verdict for the
non-movant.'” Evans v. Books-A-Million,
762 F.3d 1288, 1294 (11th Cir. 2014) (emphasis added)
(quoting Mize v. Jefferson City Bd. of Educ., 93
F.3d 739, 742 (11th Cir. 1996)). And when considering whether
any genuine disputes of material fact exist, the court must
view the evidence in the record in the light most favorable
to the non-moving party and draw reasonable inferences in
favor of the non-moving party. White v. Beltram Edge Tool
Supply, Inc., 789 F.3d 1188, 1191 (11th Cir. 2015).
to these rules, the court next presents the facts in the
record in the light most favorable to Mr. Thomas.
Mr. Thomas's Employment and Diabetes
Thomas worked as a bulk bag operator in the packaging and
shipping department at Imerys's carbonate mines in
Sylacauga, Alabama for 18 years until his termination on
September 18, 2014. (Doc. 52-1 at 6). As a bulk bag operator,
Mr. Thomas used a machine to fill bags with finished products
and used a forklift to transfer the bags to a storage area.
February 2012, Mr. Thomas visited his physician for high
blood pressure, weakness, poor balance, dizziness,
significant weight loss, increased thirst, and frequent
urination. The physician diagnosed him with diabetes. (Doc.
52-1 at 14-15).
Thomas manages his diabetes by maintaining a strict diet,
exercising regularly, checking his blood sugar level twice a
day, and taking Metformin daily to stabilize his blood sugar.
If his blood sugar is low, or if he feels jittery and weak,
Mr. Thomas will eat a snack to raise his blood sugar to a
normal level. (Doc. 52-1 at 15-16, 18, 20).
Thomas took off work for a week after receiving his
diagnosis. When he returned to work, he showed his
doctor's excuse to his supervisor, Wayne Whitley, and the
packaging and shipping department manager, Jack Holley, and
told the two men that he was diabetic. Mr. Whitley and Mr.
Holley told Mr. Thomas that if he was not feeling well he
could “just go and do what you need to do.” (Doc.
52-1 at 18). Mr. Thomas had scheduled breaks at 9:00 a.m. and
12:00 p.m., but if he felt bad or needed to check his blood
sugar in between breaks, he could shut his machine down and
go get a snack, check his blood sugar, or take his medicine.
(Id.). Mr. Thomas only had to say “I need to
eat” to let his supervisor know that he was having a
diabetic episode and go eat. (Doc. 49-2 at ¶ 3).
The September 12, 2014 Sweeper Inspection Incident
September 12, 2014, officials from the Mine Safety and Health
Administration (MSHA) visited Imerys's plant to perform
an inspection. Mr. Thomas had previously experienced an MSHA
inspection at Imerys's plant and understood that Imerys
employees had to assist MSHA inspectors as a priority. (Doc.
52-1 at 26-27).
morning, the packaging and shipping crew consisted of Mr.
Thomas, Marcus McGhee, Marcellus Jackson, Eric Dark, and
Woodrow McKenzie. (Doc. 52-1 at 26). As usual, Mr. Whitley
supervised the crew that day, but Terry Ingram served as the
“Lead Man.” (Id.). As Lead Man, Mr.
Ingram coordinated MSHA inspectors' access to equipment
they wanted to inspect. (Doc. 53-1 at 19, 28).
Whitley told Mr. Ingram that an MSHA inspector wanted to
inspect each crew member's forklift. (Doc. 53-1 at
19-20). So Mr. Ingram told the crew, “you got to get
your forklift inspected.” (Id. at 21). The
crew did not have a firm time limit for the inspection, but
Mr. Ingram testified that “you ain't going to leave
the MSHA inspector out there no 30 to 40 minutes, ”
that his men “know what to do” when informed of
an inspection, and that “[w]hen the man comes and says
you need the forklift inspected, do what the man said.”
(Id.). Each crew member, including Mr. Thomas, then
drove his forklift up for inspection at the “first free
moment.” (Doc. 52-1 at 27; Doc. 53-1 at 21).
MSHA inspector also wanted to inspect the crew's sweeper.
Like a forklift, a sweeper is a drivable piece of heavy
equipment. (Doc. 53-1 at 9).
the crew's scheduled 9:00 a.m. break, Mr. Ingram asked
Mr. McGhee to drive the sweeper to the MSHA inspector. Mr.
McGhee declined. At his deposition, Mr. McGhee testified that
Mr. Ingram knew that he could not drive the sweeper because
he has a disability involving his left eye, and he cannot see
his surroundings when driving the sweeper because it does not
have mirrors. (Doc. 53-2 at 13-14).
Ingram then asked Mr. Jackson, who does not have a
disability, to drive the sweeper to the MSHA inspector. Mr.
Jackson responded “no.” (Doc. 54-1 at 9, 13). At
his deposition, Mr. Jackson testified that he “was just
messing with” Mr. Ingram and would have moved the
sweeper if Mr. Ingram asked him again. (Doc. 54-1 at 13).
Ingram then approached Mr. Thomas as he entered the break
room for the scheduled 9:00 a.m. break. Mr. Ingram told Mr.
Thomas to take the sweeper to the MSHA inspector. Mr. Thomas
said, “I need to eat something. I need to get
something to eat.” (Doc. 52-1 at 30). Mr. Ingram
responded, “[y]ou're not going to take your break
until you take that sweeper off.” (Id.). Mr.
Thomas responded, “[m]an, I need to eat me something, I
really need to eat something, ” and walked into the
break room. (Id.). At his deposition, Mr. Thomas
testified that he planned to drive the sweeper to the
inspector after he ate a snack to raise his blood sugar
Ingram immediately reported Mr. Thomas's refusal to Mr.
Whitley. Mr. Whitley then went into the break room and asked
Mr. Thomas to take the sweeper to the inspector. Mr. Thomas
said, “I need to eat something then I'll take it
out.” (Doc. 52-1 at 156). Mr. Whitley said, “no
you're going to do it now.” (Id.). Mr.
Thomas said, “can't you let your [Lead Man] do it?
I'm sure MSHA will wait until after I take my break. . .
. I'm asking you to let me eat my food.”
(Id.). Mr. Whitley then told Mr. Thomas to clock out
and go home. (Doc. 52-3 at 32). Mr. Jackson eventually moved
Investigation and Termination
same day, September 12, 2014, Mr. Whitley reported the
incident to Mr. Holley and the human resources specialist,
Anessa Osborn, who investigated the incident.
Osborn interviewed Mr. Jackson on September 15, 2014. Mr.
Jackson informed Ms. Osborn that Mr. Ingram first asked him
to move the sweeper before Mr. Ingram asked Mr. Thomas, and
that Mr. Thomas said he ...