United States District Court, S.D. Alabama, Southern Division
JEFFREY U. BEAVERSTOCK UNITED STATES DISTRICT JUDGE
before the Court is Defendant Lowe's Home Centers,
LLC's (“Lowe's”) Motion for Summary
Judgment (Doc. 35), Plaintiff Nathaniel Wilson's
(“Wilson”) brief in opposition thereto (Doc. 40),
and Lowe's brief in reply (Doc. 44). The Motion is now
ripe for resolution. Following the Order dated July 18, 2019
(Doc. 52), and upon due consideration, the Court concludes
that the Motion is due to be GRANTED for the reasons set
STANDARD OF REVIEW
judgment is due when 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). An issue of fact is
“material” if, under the substantive law
governing the claim, its presence or absence might affect the
outcome of the suit. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). If the movant fails to
satisfy its initial burden, the motion for summary judgment
will be denied. Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 (11th Cir. 2012). If the movant adequately
supports its motion, the burden shifts to the opposing party
to establish, “by producing affidavits or other
relevant and admissible evidence beyond the pleadings,
” specific facts raising a genuine issue for trial.
Josendis v. Wall to Wall Residence Repairs, Inc.,
662 F.3d 1292, 1315 (11th Cir. 2011); Fed.R.Civ.P.
56(c)(1)(A). “All affidavits and declarations must be
based on personal knowledge and must set forth facts that
would be admissible under the Federal Rules of
Evidence.” Josendis, 662 F.3d at 1315; see
also Fed. R. Civ. P. 56(c)(4). "In reviewing
whether the nonmoving party has met its burden, the court
must stop short of weighing the evidence and making
credibility determinations of the truth of the
matter....Instead, '[t]he evidence of the non-movant is
to be believed, and all justifiable inferences are to be
drawn in his favor.'" Dortch, Figures, &
Sons, Inc. v. City of Mobile, 2019 U.S. Dist. LEXIS
183075 at *13-14 (S.D. Ala. October 22, 2019)(quoting
Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999
(11th Cir. 1992)).
filed this lawsuit against Lowe's, his employer, under
the Americans with Disabilities Act (“ADA”), 42
U.S.C.A. §§ 12101-12213. Wilson claims that he is
“disabled” and Lowe's failed to accommodate
him as required by the ADA. He also claims that Lowe's
discriminated and retaliated against him by unfair discipline
and other miscellaneous actions.
Wilson's Employment with Lowe's, At-Work Injury, and
is a current Lowe's employee working as a Sales
Specialist in the Millworks Department at Lowe's retail
store location in Daphne, Alabama. (Doc. 36-1). Lowe's
hired Wilson in 2007 as a Customer Service Associate in the
Lawn and Garden Department. (Id.). He became a
Department Manager, performing overnight stocking, shortly
thereafter. (Id.). Over the next several years,
Wilson was a Zone Manager and subsequently an Assistant Store
Manager in several different departments. (Id.).
April 2013, Wilson suffered a back injury at work. (Doc.
36-1). He received workers' compensation medical
treatment and benefits, and has taken Family and Medical
Leave at different times over the years since his injury.
(Id.). Wilson's physician placed an 8-hour shift
restriction on Wilson's workday, as well as miscellaneous
lifting restrictions ranging between ten and thirty pounds.
(Id.). Following his injury, Wilson was kept in his
Zone Manager position, a predecessor position to the
Assistant Store Manager position, similar but with a
different title and slightly different responsibilities. At
times, other Zone Managers filled in to cover his job,
including George Strange and Justin Crist. (Docs. 36-1 and
August 2014, Wilson reached Maximum Medical Improvement and
was assigned the following permanent restrictions: no more
than an 8-hour shift and a lifting restriction of 30 pounds.
(Docs. 36-1). The Lowe's Accommodations Department is
charged with reviewing an employee's job and restrictions
after the employee reaches Maximum Medical Improvement. (Doc.
36-2). In Wilson's case, however, the Accommodations
Department did not complete that review until October 2016.
Wilson's Temporary and Permanent Accommodations and
the Interactive Process.
Wilson's permanent restrictions, he cannot perform some
of the functions of the Assistant Store Manager (or
“ASM”) position that he held at the time of his
injury; the ASM position requires that he be able to lift 50
pounds or more and to work a minimum of 48 hours per week.
(Doc. 36-1). Salaried managerial positions like the ASM role
are generally scheduled for 48 hours per week, and possibly
more based on the needs of the business. (Doc. 36-3). Members
of the salaried management team must be able to work
Lowe's corporate schedule. (Doc. 36-2). This corporate
schedule requires managers to work 9 to 10 hour days, to come
in prior to the store opening and stay after it closes to
handle zone recovery (distributing, restocking merchandise),
and to take assigned shifts (opening, middle, closing)
according to management roles on a rotating basis.
(Id.). Managers are always on call in case the store
has an emergency, someone gets hurt, or there is a natural
disaster. For these unanticipated circumstances, salaried
managers must be available to answer emails, take phone
calls, or report to the store in the middle of the night.
(Docs. 36-2 and 36-3).
The Job Description for the Assistant Store Manager Position
states as follows:
Requires morning, afternoon, and overnight availability any
day of the week. Required to work a Corporate schedule
determined by the needs of the business. Requests to be
scheduled off for a specific day require advanced
notification and approval by supervisor. Salaried positions
are generally scheduled for 48 hours. More hours may be
required based on the needs of the business.
(Doc. 36-1) (emphasis added). On the ASM job description,
Wilson drew a line through the words “generally
scheduled for 48 hours. More hours may be required based on
the needs of the business.” (Id.). Below these
crossed out words, Wilson wrote: “I can only work 8
hours per day (due to on the job injury).”
(Id.). A copy of his revision to the job description
(Id.). By his statement on the actual job
description combined with striking the 48-hour requirement,
Wilson acknowledged that by only being able to work eight
hours a day, he could not work the 48 hours per week required
of Assistant Store Managers. Further, as this job description
evidences, an Assistant Store Manager has to be available to