Hughes v. Wal-Mart Stores East, LP

          MEMORANDUM OPINION AND ORDER

          ANDREW L. BRASHER, UNITED STATES DISTRICT JUDGE.

         This is an employment discrimination lawsuit pursuant to the Americans with Disabilities Act of 1990 (“ADA”), codified at 42 U.S.C. § 12101, et seq., as amended, between Tiffany Hughes (“Plaintiff”), her former employer Wal-Mart Stores East, LP (“Wal-Mart”), and former co-worker Michael R. “Rusty” Harris (collectively, “Defendants”). This matter comes before the court on Defendants' Motion for Summary Judgment (Doc. 77). The motion has been fully briefed and is ripe for decision.

         I. JURISDICTION AND VENUE

         Subject matter jurisdiction is conferred by 28 U.S.C. § 1343 as to Plaintiff's federal causes of action, and the Court may exercise supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. The parties do not contest personal jurisdiction or venue, and there are adequate allegations to support both. See 28 U.S.C. § 1391.

         II. STANDARD OF REVIEW

         Summary judgment is appropriate when 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). The Court views the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

         The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for the motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id. Alternatively, a movant who does not have a trial burden of production can assert, without citing the record, that the nonmoving party “cannot produce admissible evidence to support” a material fact. Fed.R.Civ.P. 56(c)(1)(B); see also Fed. R. Civ. P. 56 advisory committee's note (“Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials.... [A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact.”).

         If the movant meets its burden, the burden shifts to the nonmoving party to establish - with evidence beyond the pleadings - that a genuine dispute material to each of its claims for relief exists. Celotex Corp., 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).

         III. BACKGROUND

         Plaintiff is a pharmacist who was employed by Wal-Mart primarily at its Prattville, Alabama location. Defendant Harris was employed as Wal-Mart's Market Health and Wellness Director for a group of stores including the Prattville location. Plaintiff acknowledges that Harris was in her “chain of command as a member of the ‘Market Leadership Team.'” (Doc. 30 at 15). In 2015, Plaintiff sought accommodations for various medical conditions, specifically, that she be allowed to use a stool during her shifts and that she be excused from giving injections. Wal-Mart approved both of those accommodations on November 5, 2015. On January 7, 2016, Plaintiff filed her first charge with the Equal Employment Opportunity Commission (“EEOC”) alleging retaliatory activity prohibited by the ADA, specifically, that she had not yet been provided with an OSHA-approved stool to accommodate her disability. Plaintiff's stool arrived at the pharmacy in February 2016.

         On April 5, 2016, Wal-Mart's Health and Wellness Compliance Department sent an email to Plaintiff requesting that she complete a Conflict of Interest survey (“COI”). Although Plaintiff had previously submitted COIs as required, she delayed submitting her COI in 2016, claiming that she was afraid any mistakes on the form would be used as a basis to terminate her employment. There is no dispute that a COI is required of all pharmacists employed by Wal-Mart.

         On July 6, 2016, Harris visited the pharmacy while Plaintiff was at work. Harris attempted to discuss the COI and Wal-Mart's dress code with Plaintiff. Although there are disputes as to particular statements made that day, it is beyond dispute that Harris and Plaintiff engaged in a verbal confrontation which included raised voices in the presence of customers and employees. Plaintiff refused to complete her COI that day. Harris relieved Plaintiff of her duties for the remainder of her shift and informed her that she was suspended with pay. When Plaintiff began to make phone calls to various Wal-Mart corporate numbers instead of leaving, Harris informed Plaintiff that she was suspended without pay. At some point during this interaction, Plaintiff alleges that Harris said she was “unfit” while directing her to leave the pharmacy. Plaintiff eventually left the pharmacy.

         Defendants sent Plaintiff a letter giving her until July 31, 2016, to submit her COI or her employment would be terminated. Defendants received Plaintiff's completed COI on July 29, 2016. By a letter dated August 9, 2016, Wal-Mart informed Plaintiff that she would be placed back on the schedule as of August 17, 2016, but required that she “communicate with your leadership team, including engaging in discussions with [Harris]” before resuming her duties. (Doc. 78-10 at 102). The letter further stated that “If you choose not to confer with the leadership team, please let me know, and we will respond accordingly and place you on a 30 day personal leave of absence so you can find another available position for which you are qualified.” Id. Plaintiff responded to Harris that she wished to be placed back on the schedule but refused to meet with him or the leadership team. Wal-Mart placed Plaintiff on leave until September 16, 2016, and terminated her employment on September 27, 2016.

         On October 1, 2017, Plaintiff's husband presented a prescription for Plaintiff at Wal-Mart's pharmacy in Millbrook, Alabama. The prescription triggered a “red flag” in the computer system because of another prescription that Plaintiff was already taking. Pursuant to store policy, the pharmacist called another Wal-Mart pharmacist for a professional opinion and called Plaintiff's prescribing physician for clarification. The treating physician withdrew the prescription, and Wal-Mart did not fill the prescription.

         On August 22, 2016, Plaintiff filed a second charge with the EEOC, again alleging retaliatory activity prohibited by the ADA. On January 13, 2017, the EEOC issue Plaintiff a Notice of Right to Sue. Plaintiff filed her Complaint in this Court on April 17, 2017, and an Amended Complaint on February 1, ...