Opinion
2:21-cv-02719-DCN-JDA
11-13-2023
Mahmoud Tarokh, Plaintiff, v. Wal-Mart Stores East, LP; Walmart Inc., Defendants.
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Jacquelyn D. Austin United States Magistrate Judge
This matter is before the Court on Defendants' motion for summary judgment. [Doc. 53.] Plaintiff brings this case pursuant to the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973 (“Rehabilitation Act”). Pursuant to the provisions of 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2), D.S.C., all pretrial matters in employment discrimination cases are referred to a United States Magistrate Judge for consideration.
Plaintiff filed this action on August 23, 2021. [Doc. 1.] On March 3, 2023, Defendants filed a motion for summary judgment. [Doc. 53.] Plaintiff filed a response in opposition to the motion on March 31, 2023, and Defendants filed a reply on April 14, 2023. [Docs. 54; 57.] The motion is ripe for review.
BACKGROUND
In ruling on a motion for summary judgment, this Court reviews the facts and reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378 (2007); see also Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 433 (4th Cir. 2013). Viewed in the light most favorable to Plaintiff, the summary judgment record reveals the following facts.
As explained below, Plaintiff has conceded some of his claims. Accordingly, the facts included in this Background section relate only to the claims remaining in this action.
Plaintiff's Employment with Defendants
Plaintiff was employed as an assistant store manager (“ASM”) at Defendants' Walterboro, South Carolina, store. [Doc. 54-25 at 10.] The ASM job description explains that an ASM supervises and develops employees; upholds Defendants' open-door policy; ensures compliance with Defendants' policies and procedures; models, enforces, and provides direction and guidance to employees on customer service; participates and encourages employee participation in community outreach programs; drives the financial performance of his assigned area; and drives sales in his assigned area. [Doc. 53-11 at 2.]
ASMs are assigned to specific areas of the store to manage. [Doc. 54-24 at 4.]
Plaintiff's Work-Related Injuries
On July 24, 2015, Plaintiff injured his left knee while working. [Docs. 54-25 at 29; 54-3 at 3.] He saw a family practice physician on March 11, 2016, with complaints of knee pain, and an MRI of his left knee in April 2016 showed a torn meniscus. [Doc. 54-3 at 2-3.]
On November 21, 2019, Plaintiff injured his right shoulder while working. [Docs. 5312 at 2; 54-4 at 2.] In December 2019, a family practice physician limited Plaintiff to no lifting or reaching because of his right shoulder. [Doc. 54-5.] An MRI in January 2020 showed a torn rotator cuff and torn labrum. [Doc. 54-4 at 2-3.] On January 21, 2020, Plaintiff's physician changed his restriction to no lifting anything greater than 10 pounds. [Doc. 53-13.]
On February 18, 2020, Plaintiff requested short-term disability pay and a leave of absence to begin on March 10, 2020, for a knee replacement surgery. [Doc. 54-9 at 2, 5, 9.]
Plaintiff's Work Performance
Plaintiff was rated as a “solid performer” on his annual work evaluations in April 2015, April 2016, April 2017, and March 2018. [Doc. 54-2 at 3.] In March 2019, he was rated as “below expectations.” [Id.; Doc. 53-15.] Christopher Dodson, who was the store manager in Walterboro and Plaintiff's supervisor until September 2019, testified that Plaintiff was average when he first started working for Defendants but that “as time went on, he was dipping below” average and became more challenging. [Doc. 54-24 at 4, 22, 34, 37.] In the Overall Summary section of the 2019 performance evaluation, Dodson commented:
The annual evaluations that were presented to the employees in March or April of each year reviewed their performance during the previous calendar year. [Doc. 54-26 at 7-8.] Thus, Plaintiff's “solid performer” ratings were for his work performance during calendar years 2014 through 2017, and his “below expectations” rating was for his work performance during calendar year 2018. [Id.]
Sales 99% of plan
Profit 87% of below plan and goal
CFF 95 below company plan and market goal
[Plaintiff] has knowledge but lacks the drive to ensure this team is getting results on company program.
[Plaintiff doesn't] plan features or themes . . . in his areas-[Plaintiff] doesn't spend the team with his team during SWAS meeting or getting their input or his plans to them to do.
[Plaintiff] failed his frozen audit -Which he needs to touring using OBW and helping his team to OBW standard
[Plaintiff] hasn't improved outs within his areas-to company or market goal, or has a plan on how to do it.
[Plaintiff] is over CAP 1 and doesn't ha[ve] them to complete their tasks which impact[s] his areas
[Plaintiff] has improved on using the note app. And completing his notes
[Plaintiff] must learn more about process and other Apps. To do his job.
[Plaintiff] hasn't own PUT program and store results are due to him not following program and following up on 4x4 touring and putting notes into app[Doc. 53-15 at 2 (footnotes added).] In the Future Priorities section of the 2019 performance evaluation, Dodson commented, “[Plaintiff] needs to clearly focus on doing his job and leading his team to complete tasks and directions that the company is giving us. [Plaintiff] struggle[s] with the basic functions of his role and ensuring his area[s] are up to company standards- he has years of experience.” [Id. at 3.]
CFF stands for Clean, Fast, Friendly and is based on customer evaluations. [Doc. 54-24 at 38.]
For a department to pass an audit, it must receive a score of 80. [Doc. 54-24 at 39.]
OBW stands for One Best Way and is Defendants' standard for departments. [Doc. 54-24 at 39.]
Plaintiff testified that “CAP 1 is from eight o'clock at night until eight o'clock in the morning.” [Doc. 54-25 at 25.]
Between August 2018 and January 2020, Plaintiff had five disciplinary actions. [Doc. 53-14 at 2.] On August 10, 2018, he received a yellow disciplinary action from Dodson for poor business judgment. [Id. at 2, 10.] On November 28, 2018, he received two orange disciplinary actions, one for facility/housekeeping standards/sanitation and one for job performance/productivity, from Dodson. [Id. at 2, 12.] On December 22, 2018, he received a red disciplinary action from Dodson for the sale of firearms. [Id. at 2, 14.] Finally, in early February 2020, Plaintiff received a yellow disciplinary action for job performance/productivity from Tabitha Poteat, his then supervisor, for incidents that occurred between December 22, 2019, and January 24, 2020. [Id. at 2, 16-17.]
Defendants' Disciplinary Action Policy establishes levels of disciplinary action: a yellow disciplinary action is akin to a first written action; an orange disciplinary action is akin to a second written action; and a red disciplinary action is akin to a third written action. [Doc. 53-6 at 2-3.]
Around September 2019, Dodson was transferred to another store, and Poteat became the store manager in Walterboro after Dodson left. [Docs. 54-24 at 22; 54-25 at 12.]
The record is not clear about when Plaintiff received this disciplinary action. [See Doc. 54-26 at 13.] The disciplinary action form completed by Poteat lists specific issues from December 22, 2019, and January 2, 16, and 24, 2020, and Plaintiff acknowledged receiving the disciplinary action on February 16, 2020. [Doc. 53-14 at 16-17.]
Defendants' Talent-Balancing Initiative and Plaintiff's Termination
Defendants implemented a company-wide directive that all salaried managers who had received two consecutive performance evaluation ratings below “meets expectations” would be terminated. [Doc. 54-26 at 10, 28.] Poteat learned about the initiative on February 22, 2020. [Id. at 10.]
As previously noted, Plaintiff received a rating of “below expectations” on his performance evaluation in March 2019 for his work performance during calendar year 2018. [Docs. 53-15; 54-2 at 3.] For his work performance during calendar year 2019, Poteat recommended that Plaintiff be rated “below expectations.” [Doc. 54-26 at 8.] That recommendation was then taken to the regional level through a process Defendants call calibration, and because Plaintiff was going to receive a rating of “below expectations” for two consecutive years, he was terminated on February 29, 2023. [Id. at 6-7, 12; Docs. 5319; 54-25 at 31.]
Plaintiff's Post-Termination Internal Complaint and Charge of Discrimination
After he was terminated, Plaintiff called Defendants' ethics hotline to complain that he had been unfairly terminated in retaliation for his job-related injury and his request for a leave of absence. [Docs. 53-20; 54-25 at 17-18; see Doc. 53-21.] He followed up with an email and documents to support his complaint. [Doc. 53-21.] Defendants investigated Plaintiff's complaint and determined it had no merit and that Plaintiff was terminated because he was rated below expectations on his last two job performance evaluations. [Doc. 53-22.] Plaintiff subsequently filed a Charge of Discrimination (the “Charge”) with the Equal Employment Opportunity Commission (the “EEOC”) on October 7, 2020. [Docs. 1 ¶ 115; 7 ¶ 115.]
This Action
Plaintiff commenced this action on August 23, 2021, asserting eight causes of action: four causes of action for violations of the ADA-failure to accommodate, intentional discrimination, retaliation, and failure to promote [Doc. 1 ¶¶ 118-59]-and the same four causes of action for violations of the Rehabilitation Act [id. ¶¶ 160-201]. However, in his response in opposition to the motion for summary judgment, “Plaintiff concedes his Rehabilitation Act claims [and] his failure to promote claim” under the ADA. [Doc. 54 at 35 n.13.] Accordingly, it is recommended that Defendants' motion for summary judgment be granted as to those five claims, and this Report and Recommendation addresses the remaining causes of action-failure to accommodate, intentional discrimination, and retaliation in violation of the ADA.
APPLICABLE LAW
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure states, as to a party who has moved for summary judgment:
The court shall grant summary judgment 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). A fact is “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings. Id. at 324. Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue. Id. Under this standard, the existence of a mere scintilla of evidence in support of the non-movant's position is insufficient to withstand the summary judgment motion. Anderson, 477 U.S. at 252. Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion. Id. at 248. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Further, Rule 56 provides in pertinent part:
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1). Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.
General Provisions of the ADA
The ADA makes it unlawful for an employer to “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Discrimination in this context includes refusing to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless . . . the accommodation would impose an undue hardship.” Id. § 12112(b)(5)(A). The ADA's retaliation provision also makes it unlawful to “discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter.” 42 U.S.C. § 12203(a).
DISCUSSION
As stated, three claims remain in this action-failure to accommodate, intentional discrimination, and retaliation in violation of the ADA. With respect to these remaining causes of action, Defendants argue that any claims Plaintiff asserts based on facts that occurred before December 12, 2019, are time barred; that Plaintiff has not established he is disabled under the ADA; that he cannot establish that he could perform the essential functions of his job; that he failed to request any accommodation; that Defendants accommodated Plaintiff to the extent he required an accommodation for his shoulder injury; that Defendants terminated Plaintiff for poor performance; and that Defendants did not retaliate against Plaintiff based upon his alleged disability. [Doc. 53-1 at 12-24.] The Court addresses Defendants' arguments and Plaintiff's claims.
Time-Barred Claims
Defendants first argue that any claims Plaintiff asserts based on facts that occurred before December 12, 2019, are time barred. [Doc. 53-1 at 12-13.] The Court agrees.
Before filing suit under the ADA, a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC. 42 U.S.C. § 12117(a) (stating that the procedures set forth in 42 U.S.C. § 2000e-5 apply to ADA claims); see also Sydnor v. Fairfax Cnty., 681 F.3d 591, 593 (4th Cir. 2012) (“Modeled after Title VII of the Civil Rights Act of 1964, the ADA incorporates that statute's enforcement procedures, including the requirement that a plaintiff must exhaust his administrative remedies by filing a charge with the EEOC before pursuing a suit in federal court.” (internal citations omitted)). In South Carolina, the charge must be filed within 300 days after an “alleged unlawful employment practice” occurred. 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1). The failure to file a timely charge with the EEOC bars the claim in federal court. McCullough v. Branch Banking & Tr. Co., 35 F.3d 127, 131 (4th Cir. 1994) (“When the plaintiff fails to file such a complaint in a timely fashion with the EEOC, the claim is time-barred in federal court.”).
Here, as stated, Plaintiff filed his Charge on October 7, 2020. [Docs. 1 ¶ 115; 7 ¶ 115.] Therefore, Plaintiff's claims regarding any acts that occurred before December 12, 2019-300 days before he filed his Charge-are time barred.
In his opposition to the motion for summary judgment, Plaintiff did not specifically address Defendants' argument regarding time-barred claims.
Whether Plaintiff is Disabled within the Meaning of the ADA
Plaintiff's claims for failure to accommodate and intentional discrimination both require a showing that he is disabled within the meaning of the ADA. Rhoads v. F.D.I.C., 257 F.3d 373, 387 (4th Cir. 2001). Defendants argue that Plaintiff has not established that he is disabled within the meaning of the ADA. [Doc. 53-1 at 14-16.] In response to the motion for summary judgment, Plaintiff argues that he has two disabilities-a knee injury and a shoulder injury-and that he can establish that he actually has these impairments and that he has a record of these impairments. [Doc. 54 at 15-17.] The Court concludes that Plaintiff has failed to establish a genuine question of material fact as to whether his knee injury is a disability within the meaning of the ADA but that he has established a question of fact as to whether his shoulder injury is a disability within the meaning of the ADA.
The ADA provides that the term “disability” includes “a physical or mental impairment that substantially limits one or more major life activities”; “a record of such impairment”; or “being regarded as having such an impairment.” 42 U.S.C. § 12102(1). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). The EEOC's regulations state that an impairment is a disability if it “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.” 29 C.F.R. § 1630.2(j)(1)(ii). “An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” Id. Congress enacted several rules of construction regarding the definition of disability: (1) the definition should be construed in favor of broad coverage of individuals; (2) “substantially limits” should be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008; (3) an impairment needs to substantially limit only one major life activity to be considered a disability; (4) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and (5) the determination of whether an impairment substantially limits a major life activity should be made without regard to the ameliorative effects of mitigating measures such as, inter alia, medication and medical supplies. 42 U.S.C. § 12102(4).
Plaintiff's Knee Injury
The Court concludes that Plaintiff has failed to establish that his knee injury qualifies as a disability within the meaning of the ADA. In response to the summary judgment motion, Plaintiff contends that “[i]t cannot be legitimately disputed that [his knee injury] was a disability under the ADA” based on MRI results showing he had a meniscus tear in 2015; the doctor's notes regarding those results indicating that it would “likely require surgery”; Plaintiff's testimony that his knee injury impaired his ability to run, participate in sports, and walk without pain; and Defendants' third-party leave agency approving him for short-term-disability leave for knee surgery in 2020. [Doc. 54 at 16 (internal quotation marks omitted) (citing Docs. 54-3; 54-9; 54-13; 54-25).] The MRI results from April 2016 confirm a meniscus tear in Plaintiff's left knee, and a physician from Walterboro Family Practice Associates, PA, subsequently opined that Plaintiff needed orthopedic evaluations and would likely require surgery. [Doc. 54-3.] At his deposition, Plaintiff testified that he twisted his left knee in 2015 and continues to have pain in that knee and that he used to walk, bike, and play tennis as hobbies but he no longer does those activities because of his knee pain. [Doc. 54-25 at 6, 7.] In his declaration, Plaintiff avers,
Defendants argue that the Court should ignore Plaintiff's declaration under the sham affidavit doctrine because the “declaration is contradicted by his prior testimony and is nothing more than a fleeting effort to manufacture an issue of fact for this [m]otion.” [Doc. 57 at 3 n.2.] The Fourth Circuit Court of Appeals has held,
If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact. A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct.Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984) (internal quotation marks and citation omitted). However, here, Plaintiff's declaration does not appear to contradict the deposition testimony cited by Defendants because that testimony pertains to whether Plaintiff requested an accommodation for his injuries [Doc. 54-25 at 29, 31, 34], and nothing in Plaintiff's declaration states that he asked for an accommodation [Doc. 54-13]. Accordingly, the Court considers Plaintiff's declaration.
My 2015 knee injury resulted in a tear in my meniscus and it has impaired my ability to walk, kneel, and bend. I took pain relievers like advil for the pain and I would have to wear a knee brace to be able to walk. It was still painful whenever I walked.[Doc. 54-13.]
On the other hand, nothing in the record suggests that Plaintiff ever required any accommodation for his knee injury or that his knee injury interfered with his ability to walk, kneel, and bend at work. Indeed, Plaintiff testified that he did not request any accommodation for his knee injury [Doc. 54-25 at 29, 34] and that his job was “all physical,” requiring him “to walk - I don't know - 400 miles a day, every day, running around a circle, chasing people” [id. at 11]. Thus, although Plaintiff's testimony indicates that he sometimes has pain and his ability to walk, kneel, and bend is impaired, given his testimony about the amount of walking he did at work every day and his classifying his job as “all physical,” no reasonable factfinder could conclude that his knee injury substantially impairs his ability to walk, kneel, and bend. Additionally, Plaintiff has failed to direct the Court to anything in the record regarding any follow-up evaluations with an orthopedist or indicating that a physician ever placed Plaintiff on restrictions related to his knee injury. Plaintiff requested leave for knee surgery in early 2020 [Doc. 54-9], but he has failed to direct the Court to any evidence detailing the limitations he experienced that led him to schedule this surgery, and ultimately, Plaintiff never had knee surgery [Doc. 54-25 at 31].
On this record, the Court concludes that Plaintiff has failed to present sufficient evidence to create a question of fact as to whether his knee injury substantially limits a major life activity as compared to most people in the general population or whether he has a record of such an impairment. See Everett v. Horry Cnty. Police Dep't, No. 4:21-cv-01764-RBH, 2023 WL 6307401, at *5 (D.S.C. Sept. 28, 2023) (concluding that the record was insufficient to create a triable issue regarding whether the plaintiff was substantially limited in her ability to work or any other major life activity where the evidence established that she suffered from lupus anticoagulant, severe arthritis, anxiety, post traumatic stress syndrome, and significant knee issues but not that these conditions substantially limited a major life activity); Johnson v. Lexington Cnty. Sch. Dist. Two, No. 3:15-4807-JMC, 2019 WL 5542598, at *4 (D.S.C. Oct. 28, 2019) (concluding that the plaintiff was not a qualified person with a disability where she made only generalized claims that major life activities were impacted by her documented impairments); see also Zalezhnev v. Wonderworld Montessori Acad. Corp., No. 20-10277, 2021 WL 4553019, at *2 (11th Cir. Oct. 5, 2021) (concluding that “there was a dearth of record evidence showing the severity of [the plaintiff's] impairment and that his [cervical] fusion made him unable to perform an activity or significantly restricted his performance compared to an average person” where there was little medical documentation and the plaintiff's own testimony that he performed his duties despite pain undermined any alleged restriction). Although a knee injury “might substantially limit someone's mobility,” the evidence does not establish that it substantially limits Plaintiff's. Israelitt v. Enter. Servs. LLC, 78 F.4th 647, 655 (4th Cir. 2023) (concluding that an employee who had an arthritic big toe did not have a disability within the meaning of the ADA because there was no indication that the condition impacted his walking in any non-minor way).
Plaintiff's Shoulder Injury
On the other hand, with respect to Plaintiff's shoulder injury, the Court concludes that Plaintiff has established a question of fact as to whether this injury qualifies as a disability within the meaning of the ADA. MRI results confirm that Plaintiff tore his right labrum and rotator cuff. [See Doc. 54-4 at 2.] In December 2019, a physician from Walterboro Family Practice Associates, PA, restricted Plaintiff to no lifting or reaching because of his right shoulder and noted that Plaintiff would follow up two weeks later regarding the restrictions. [Doc. 54-5.] On January 21, 2020, after receiving MRI results, Plaintiff's restrictions were changed to no lifting anything greater than 10 pounds based on his right rotator cuff and labrum tear. [Doc. 53-13.] Although Defendants argue that temporary work restrictions alone are insufficient to establish an employee is disabled [Doc. 53-1 at 15; 57 at 4-5], that argument was recently rejected by this Court, see Shoptaw v. Walmart, Inc., No. 1:21-2152-SAL-PJG, 2023 WL 5830332, at *5 (D.S.C. Feb. 6, 2023) (rejecting the employer's argument that lifting restrictions are per se insufficient to establish that a plaintiff is disabled under the ADA), Report and Recommendation adopted by 2023 WL 5287066 (D.S.C. Aug. 17, 2023). Additionally, the record evidence does not show when or if Plaintiff's lifting restrictions expired. Based on this record, the Court concludes that a reasonable factfinder could determine that Plaintiff's shoulder injury substantially limits his ability to lift and thus is a disability within the meaning of the ADA.
Failure-to-Accommodate Claim
“To show an employer's failure to accommodate, the plaintiff must prove: (1) that []he had a disability within the statutory meaning; (2) that the employer knew of h[is] disability; (3) that a reasonable accommodation would permit h[im] to perform the essential functions of the position; and (4) that the employer refused to make the accommodation.” Perdue v. Sanofi-Aventis U.S., LLC, 999 F.3d 954, 959 (4th Cir. 2021). Defendants argue that Plaintiff cannot establish that he could perform the essential functions of his job, that he requested an accommodation, or that Defendants refused to accommodate Plaintiff's shoulder injury. [Doc. 53-1 at 16-20.] The Court agrees that Plaintiff has failed to establish a genuine issue of material fact as to whether Defendants refused to accommodate Plaintiff's shoulder injury and accompanying work restrictions and, thus, Defendants are entitled to summary judgment on Plaintiff's failure-to-accommodate claim.
As noted, Defendants also argue that Plaintiff is not disabled within the meaning of the ADA. However, the Court has already determined that a question of fact exists as to whether Plaintiff's shoulder injury qualifies as a disability. Thus, the Court addresses Plaintiff's failure-to-accommodate claim with respect to his shoulder injury.
Defendants' corporate designee testified repeatedly that, as an assistant manager with a 10-pound lifting restriction, Plaintiff could delegate any lifting of items weighing more than 10 pounds to other employees who reported to him. [Doc. 54-26 at 18, 19, 34, 36, 37, 59; see Doc. 54-25 at 11 (Plaintiff's testimony that he had 10 or 12 people who reported to him in 2019).] Therefore, Defendants contend that they provided a reasonable accommodation for Plaintiff's disability because he could delegate tasks that he could not perform. [Doc. 53-1 at 19-20.] In response, Plaintiff contends that Defendants “neither honored his [lifting] restriction nor allowed him to delegate.” [Doc. 54 at 23.] To support this argument, Plaintiff relies on the February 2020 disciplinary action he received from Poteat that included an issue from January 24, 2020, stating that Plaintiff was the overnight manager “on duty when several pallets w[e]re put on the top steel without being properly shrink wrapped[] or binned [and Plaintiff] personally placed items in steel without proper shrink wrap and not following OBW and binning the product.” [Id. (citing Doc. 53-16 at 2-3).] In that disciplinary action, Poteat also stated that she discussed the issue with Plaintiff and, when Plaintiff told Poteat he would “get someone to fix it,” she “instructed him to complete the pallets personally and to ensure all were completed prior to leaving.” [Doc. 53-16 at 2-3.] Plaintiff argues that this disciplinary action establishes that Defendants did not respect his lifting restriction, did not allow him to delegate tasks, and even disciplined Plaintiff for his purported accommodation. [Doc. 54 at 23-24.]
In his deposition, Plaintiff explained that
during [the] day when the [delivery] truck comes, the people shrink wrap all this pallet that doesn't go on the floor. Like if you say you have 20 pallet of shoes, that those shoes [don't] fit on the floor[, y]ou get somebody to . . . shrink wrap it and put it in [the] top bin.[Doc. 54-25 at 26.] He further explained that this particular disciplinary action indicated that “some of those shrink wrap [weren't] shrink-wrapped good enough and [he] was supposed to catch it” and that Poteat wanted Plaintiff “to bring it down, shrink wrap it at eight o'clock in the morning before [he went] home[, and] shoot it back again with a forklift.” [Id.] Defendants' corporate designee testified that she “never saw anything that said [Plaintiff] couldn't operate any machinery [or] drive a forklift” and that “[y]ou don't have to lift 10 pounds to drive a forklift” because when “you use a forklift, you're not lifting.” [Doc. 54-26 at 34-35.] Instead, “you're only driving” the forklift. [Id. at 35.]
Upon review of this testimony, the Court concludes that the disciplinary action for January 24, 2020, does not establish that Defendants required Plaintiff to do anything beyond his lifting restriction or generally did not allow him to delegate duties. As noted, Plaintiff's restriction changed on January 21, 2020, and his physician limited him to lifting no more than 10 pounds. [Doc. 53-13 at 2.] The disciplinary action indicates that on January 24, 2020, Poteat instructed Plaintiff to complete the pallets according to Defendants' standards before he left the store. [Doc. 53-16 at 2-3.] Even Plaintiff testified that Poteat was asking him to use the forklift to complete this task. [Doc. 54-25 at 26.] Although Plaintiff also testified that operating a forklift is “physical” [id. at 11], he has failed to direct the Court to anything in the record to show that asking him to operate a forklift to complete the pallets according to Defendants' standards required him to perform duties in violation of his lifting restrictions at the time. Moreover, that Poteat asked him to fix this one task-that he has not shown to violate his lifting restrictions-does not tend to show that Plaintiff was not allowed to delegate generally or not allowed to delegate any lifting over 10 pounds. Because Plaintiff has failed to forecast any evidence that Defendants refused to accommodate his disability, Defendants' motion for summary judgment should be granted on Plaintiff's failure-to-accommodate claim.
The Court notes that in Plaintiff's comments on the disciplinary action, he asserted that he “should not be the only [m]anager that drives [a] forklift[, ]clean[s] the parking lot[,] and mov[es] pallets every night,” particularly because he had “a doctor note[] not to pick up anything more than 10 pound[s],” and that he was “not suppose[d] to operate any machinery or boxes” while he was on “light duty.” [Doc. 53-16 at 2.] However, Plaintiff has failed to direct the Court to any evidence showing that he had a restriction on January 24, 2020-the date Poteat asked him to complete the pallets personally-that would have prevented him from operating a forklift.
Because the Court concludes that Defendants are entitled to summary judgment based on Plaintiff's failure to forecast evidence that they refused to accommodate his disability, the Court declines to address Defendants' other arguments. However, the Court notes that to the extent Plaintiff argues that Defendants are not entitled to summary judgment on the failure-to-accommodate claim because they failed to engage in the interactive process after learning of his shoulder disability [Doc. 54 at 20-24], “[t]he interactive process is not an end in itself,” and to impose liability for failure to engage in the interactive process, “[a]n employee must demonstrate that the employer's failure to engage in the interactive process resulted in the failure to identify an appropriate accommodation for the disabled employee,” Clark v. Sch. Dist. Five of Lexington & Richland Cntys., 247 F.Supp.3d 734, 745 (D.S.C. 2017) (internal quotation marks omitted). Here, as stated, Plaintiff has failed to forecast any evidence that Defendants did not accommodate his shoulder injury.
Intentional Discrimination and Retaliation Claims
Absent direct or indirect evidence of discrimination or retaliation in violation of the ADA, a plaintiff may proceed under the McDonnell Douglas “pretext” framework to establish claims of discrimination and retaliation. Laird v. Fairfax Cnty., 978 F.3d 887, 892 (4th Cir. 2020). Under this framework, an employee must first prove a prima facie case of discrimination or retaliation. McDonnell Douglas Corp. v. Green, 411 U.S. 792,802 (1973). If the plaintiff succeeds, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory and nonretaliatory reason for the adverse employment action. Id. By providing such an explanation, the employer rebuts the presumption of discrimination or retaliation created by the prima facie case, and “[t]he presumption, having fulfilled its role of forcing the [employer] to come forward with some response, simply drops out of the picture.” St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). If the employer articulates a legitimate, nondiscriminatory and nonretaliatory reason, the burden shifts back to the employee to show that the articulated reason was actually a pretext for discrimination or retaliation. McDonnell Douglas, 411 U.S. at 804.
The briefing by the parties addresses only the McDonnell Douglas framework; Plaintiff does not argue he has direct evidence of discrimination or retaliation.
To establish a prima facie case of discrimination under the ADA, the plaintiff must prove “(1) []he is disabled; (2) []he was a qualified individual; and (3) []he suffered an adverse employment action based on h[is] disability.” Laird, 978 F.3d at 892 n.4. To establish a prima facie case of retaliation under the ADA, the plaintiff must prove “(1) []he has engaged in protected conduct; (2) []he suffered an adverse action after engaging in the protected conduct; and (3) there was a causal link between the protected conduct and the adverse action.” Id. And a plaintiff asserting an ADA claim must establish “but-for” causation. Gentry v. E.W. Partners Club Mgmt. Co., 816 F.3d 228, 235-36 (4th Cir. 2016) (“The only remaining question is whether the ADA's text calls for a ‘but-for' causation standard. We hold that it does.”).
Here, even assuming Plaintiff can establish a prima facie case of discrimination and retaliation, Mandengue v. ADT Sec. Sys., Inc., No. ELH-09-3103, 2012 WL 892621, at *16 (D. Md. Mar. 14, 2012) (“[I]t is a common practice of the Fourth Circuit to assume, without deciding, that the plaintiff has established a prima facie case in cases where the employer has proffered evidence of a legitimate reason for its adverse action in its motion for summary judgment.” (citing cases)), Defendants have articulated a legitimate, nondiscriminatory and nonretaliatory reason for terminating Plaintiff. Specifically, Defendants assert that Plaintiff was terminated “based solely on his poor job performance and as part of its talent-balancing initiative.” [Doc. 53-1 at 2; see also id. at 23 (asserting that Plaintiff was terminated because of “his repeated substandard performance”); Doc. 57 at 13-14 (asserting that Plaintiff's performance was “the sole basis for his termination”).]
Defendants have also directed the Court to evidence supporting this reason. In March 2019, Dodson rated Plaintiff as “below expectations” on his annual work evaluation. [Docs. 53-15; 54-2 at 3.] Poteat became the store manager in Walterboro in September 2019 [Docs. 54-24 at 22; 54-25 at 12], and by January 2, 2020, she had had at least two discussions with Plaintiff for leaving “[b]reakpacks filled with returns and unworked break packs filled with live freight from the previous night” and for not binning overstock from the previous night [Doc. 53-16 at 2; see id. (noting that, on January 2, 2020, Poteat “[h]ad a follow[-]up conversation with Plaintiff” about the same issues observed on December 22, 2019)]. Two weeks later, on January 16, Plaintiff failed to ensure the area behind the store was clean in accordance with Defendants' standards, with pallets left not consolidated or stacked, bales left by receiver doors, and the bale area and behind the store not swept or clear of trash. [Id.] And on January 24, Plaintiff operated equipment without wearing a safety vest and was the overnight manager on duty when pallets were not shrink wrapped or binned according to Defendants' standards. [Id.] In early February 2020, Poteat issued a yellow disciplinary action for job performance/productivity based on the incidents that occurred between December 22, 2019, and January 24, 2020. [Id.] Plaintiff was then terminated on February 29, 2023, because he was going to receive a below expectations rating for a second consecutive year. [Doc. 53-19.] Because Defendants have met their burden to articulate a legitimate, nondiscriminatory and nonretaliatory reason for terminating Plaintiff, the Court will consider whether Plaintiff has met his burden of demonstrating that Defendants' proffered reason is merely a pretext for discrimination, which would indicate whether Plaintiff could meet his ultimate burden of persuasion and demonstrate discrimination vel non. See Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294 (4th Cir. 2010).
Generally, to prove an employer's articulated reason is a pretext for discrimination or retaliation, a plaintiff “must prove ‘both that the reason was false, and that discrimination was the real reason' for the challenged conduct.” Jiminez v. Mary Washington Coll., 57 F.3d 369, 378 (4th Cir. 1995) (quoting St. Mary's Honor Ctr., 509 U.S. at 515). However, “a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). Ultimately, to survive summary judgment on a discrimination claim, a plaintiff must demonstrate “a genuine dispute of material fact on the question of pretext sufficient to make [the employer's] proffered justification a triable issue.” Guessous v. Fairview Prop. Invs., LLC, 828 F.3d 208, 217 (4th Cir. 2016). Here, Plaintiff has failed to demonstrate a genuine factual dispute on the question of pretext.
Plaintiff first argues that Defendants have “not produced any documentary evidence” of the talent-balancing initiative and that a reasonable jury could infer that Defendants would have produced documents related to the initiative if the documents favored Defendants. [Doc. 54 at 28.] However, as an initial matter, Defendants' burden under the McDonnell Douglas burden-shifting framework “is one of production, not persuasion.” Reeves, 530 U.S. at 142. The ultimate burden of persuasion remains at all times with Plaintiff to show that Defendants intentionally discriminated against him. See id. at 143. Moreover, although Plaintiff is correct that Defendants have not put forth documentary evidence setting forth the specific criteria for being terminated under the talent-balancing initiative, they have provided evidence that the initiative existed and that Plaintiff was terminated and two other employees were reassigned pursuant to the initiative. [Doc. 5319 at 3.] On February 22, 2020, Eric Ferguson, the market human resource manager, emailed Poteat to thank her for her “leadership through the upcoming talent balancing actions” and noted that Plaintiff would be terminated and two other employees would be reassigned. [Id.] Ferguson also suggested that Poteat advise Plaintiff as follows when she covered his evaluation and terminated his employment:
Indeed, the case Plaintiff cites to support his argument regarding documentation of the talent-balancing initiative noted that “one would expect a larger corporation to document the decision to demote so many employees” in the context of whether Plaintiff had established a prima facie case of retaliatory demotion. Dunn v. Nordstrom, Inc., 260 F.3d 778, 785-86 (7th Cir. 2001).
“[Y]ou have rated Below Expectation and Development Needed for two consecutive years (FY19 and FY20). As we continue to move toward a High Performance Culture and being fit for the future, your performance over the past two years indicates that you are not performing at the level needed to remain in role, therefore your employment is being terminated today.”[Id.] Additionally, the April 2020 investigatory report following Plaintiff's ethics complaint found that Plaintiff “was terminated due to the Greater Workplace transition because of his job performance for his last two evaluations rated below expectations.” [Doc. 53-22 at 3.]
Next, Plaintiff argues that he did not meet the criteria for termination under the talent-balancing initiative because he had only one “below expectations” rating. [Doc. 54 at 28-31.] Plaintiff contends that “there is little or no admissible evidence to support” that he was slated to receive a “below expectations” rating for 2020. [Id. at 28.] Again, Defendants' burden under the McDonnell Douglas burden-shifting framework is one of production, and the ultimate burden of persuasion remains with Plaintiff. See Reeves, 530 U.S. at 142-43. And, as noted, Defendants have produced evidence that Plaintiff was terminated because he was rated “below expectations” on his evaluations in 2019 and 2020. [Docs. 53-19 at 3; 53-22 at 3.] Additionally, Ferguson's February 22nd email instructed Poteat to “cover” Plaintiff's evaluation with him on the afternoon of February 26, 2020, and Defendants' corporate designee testified that Plaintiff's 2020 evaluation is not in Defendants' system because he was terminated at the same time and did not acknowledge the 2020 evaluation. [Docs. 53-19 at 3; 54-26 at 22-23.]
Defendants' corporate designee explained that to “cover” an evaluation means to “sit down with the associate and go over the evaluation and cover the rating and any comments that [are] a result of the rating.” [Doc. 54-26 at 8.] Stated differently, it is a time when Defendants' managers “verbally cover” an employee's evaluation with him. [Id.]
Plaintiff then argues that “[a] reasonable jury could infer from the fact that [Poteat] did not coach [Plaintiff] for the[] events [in the February 2020 disciplinary action] until after her conversation with the [workers' compensation] claims manager . . . that her desire to deny the claim was the true reason for the coaching.” [Doc. 54 at 31 (footnote added).] As an initial matter, the desire to deny a workers' compensation claim is not a basis for a claim for discrimination or retaliation in violation of the ADA. Varner v. Serco, Inc., No. 2:16-2340-DCN-BM, 2017 WL 8219538, at *11 (D.S.C. Oct. 27, 2017) (“While being retaliated against for filing a workers compensation claim could constitute a cause of action under state law, . . . it does not constitute ‘protected activity' under the ADA.” (citing 42 U.S.C. § 12203(a) and cases)), Report and Recommendation adopted in part, rejected in part on other grounds by 2018 WL 1305426 (D.S.C. Mar. 12, 2018). Further, the record does not support Plaintiff's assertion that Poteat did not coach him until after her conversation with the claims manager because, although she did not issue a formal disciplinary action until after her email exchange with the claims manager, she had verbal conversations with Plaintiff about his performance before then. Defendants' Disciplinary Action Policy provides that a yellow disciplinary action may be issued if a “manager has already had a verbal conversation with [an employee] about a specific performance and/or conduct issue, and steps have not been taken to remedy it.” [Doc. 53-6 at 3.] As noted, the February 2020 disciplinary action Poteat gave to Plaintiff listed issues from four different dates. [Doc. 53-14 at 16-17.] And it indicates that it was issued after Poteat had had at least two discussions with Plaintiff by January 2, 2020 [id. (indicating that, on January 2, 2020, Poteat “[h]ad a follow[-]up conversation with [Plaintiff] about” the same issues that had been observed on December 22, 2019 (emphasis added))], which was several days before Poteat's communications with the claims manager [see also Doc. 5426 at 37 (Defendants' corporate designee's testimony that Plaintiff had been “talked to over and over again about different things[ a]nd so, finally, after prodding . . ., [Poteat] decided to have a disciplinary action, and she listed out some of those things that ha[d] come up”)].
The conversation Plaintiff references consists of communications between Poteat and Defendants' third-party workers' compensation claims manager. [See Doc. 54 at 11-12.] Plaintiff maintains that Poteat asked the claims manager if she found the claim to be questionable [id. at 11]; however, a review of the claim file shows that it was actually the workers' compensation claims manager who asked Poteat if she found the claim to be questionable [Doc. 54-8 at 6]. After Poteat responded, “Somewhat. Yes,” the claims manager asked Poteat to explain her reasoning and indicated that she, too, questioned the claim. [Id.] Poteat explained that the timing of Plaintiff's reporting the injury seemed suspicious and noted that he had been struggling with job performance. [Id.] In response, the claims manager asked if Plaintiff was on any disciplinary action plans or had recently been denied a promotion, as those are red flags she often sees in fraudulent claims. [Id.] Poteat responded, “He just dropped off a red coaching. He did well for a while and then has been underperforming. Co mgr is currently writing a coaching and his evaluation is due this month and will reflect his performance as well.” [Id. at 7.]
Poteat's communications with the claims manager regarding Plaintiff's workers' compensation claim for his shoulder injury occurred between January 7 and 13, 2020. [Doc. 54-8 at 6-7.]
Plaintiff next contends that Poteat's assertion that Plaintiff was underperforming is suspicious because she documented performance issues that occurred after his shoulder injury and that were primarily related to physical tasks. [Doc. 54 at 31.] He also contends that a reasonable jury could infer that Poteat was setting Plaintiff up to be coached by requiring him to personally complete physical tasks. [Id.] However, the Court concludes that Plaintiff has misconstrued the February 2020 disciplinary action. The disciplinary action indicates that certain tasks were not completed-overstock was not binned, breakpacks were not cleared, behind the store was not cleaned, and pallets were not consolidated or stacked-or were not completed properly-pallets were not properly shrink wrapped and OBW was not followed-but nothing in the disciplinary action indicates that Plaintiff, as the assistant manager, was solely responsible for doing all of these tasks. Defendant's corporate designee testified that, as an assistant manager, Plaintiff was responsible for making sure that all tasks in his area were completed by those he supervised. [Doc. 54-26 at 59-60; cf. Doc. 53-11 (assistant manager job description, indicating that an essential function of the position is to ensure compliance with policies and procedures by holding hourly associates accountable and that job competencies include ensuring merchandising operations and store standards are aligned with Defendants' standards, holding associates accountable for completing work within expectations and time requirements, following up to ensure all work requirements are completed in a timely and accurate manner, and assigning tasks to associates that fit their skill levels and maximizes team performance).] Even Plaintiff testified that the disciplinary action indicated that some pallets were not “shrink-wrapped good enough and [he] was supposed to catch it.” [Doc. 54-25 at 26.] When he did not ensure that his shift's tasks were completed, Poteat verbally counseled him and issued a yellow disciplinary action. Thus, the performance issues Poteat noted were not primarily related to physical tasks. Plaintiff is correct that Poteat did not counsel or discipline him until after he injured his shoulder. However, this is not a case where an employee who had never been disciplined or given a negative performance review suddenly comes under criticism for performance issues after informing his employer of a disability or engaging in protected activity. On the contrary, in March 2019, Dodson gave Plaintiff a “below expectations” rating on his annual work evaluation, noting among other issues that Plaintiff was over CAP 1 and did not have his team members complete their tasks, which in turn impacted his areas; that Plaintiff needed to focus on leading his team to complete tasks and directions; and that Plaintiff struggled with ensuring that his areas were up to company standards despite years of experience. [Doc. 53-15 at 2-3.] Then, by January 2020, Poteat had to counsel and discipline Plaintiff for some of the same issues that had been documented as performance issues many months before. [Doc. 53-14 at 16-17.]
The Court has already addressed Plaintiff's contention that Poteat required him to do physical tasks that exceeded his work restrictions.
As previously noted, Poteat became Plaintiff's store manager in September 2019. [Docs. 54-24 at 22; 54-25 at 12.] Plaintiff injured his shoulder in November 2019. [Docs. 53-12 at 2; 54-4 at 2.] Poteat first verbally counseled Plaintiff in December 2019 or early January 2020. [Doc. 53-14 at 16 (noting that, on January 2, 2020, Poteat “[h]ad a follow[-]up conversation with [Plaintiff] about” the same issues that had been observed on December 22, 2019 (emphasis added)).]
Moreover, although temporal proximity can establish a prima facie case of disability discrimination, temporal proximity alone cannot establish pretext. Batten v. Grand Strand Dermatology, LLC, No. 4:18-cv-0616-MGL-TER, 2019 WL 9667692, at *9 (D.S.C. Dec. 20, 2019), Report and Recommendation adopted by 2020 WL 2487534 (D.S.C. May 14, 2020). And, to the extent Plaintiff disagrees with the disciplinary actions he received, “[i]t is the perception of the decision maker which is relevant.” King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003) (internal quotation marks omitted). Plaintiff has not shown that Poteat did not believe Plaintiff's performance was substandard or that the disciplinary action was warranted.
Additionally, as noted, between August 10, 2018, and December 22, 2018, Dodson issued Plaintiff four disciplinary actions. [Doc. 53-14 at 2, 10, 12, 14.]
Plaintiff also argues that misrepresentations in Defendants' position letter to the EEOC support a finding a pretext. [Doc. 54 at 32-33.] Plaintiff points out four purported misrepresentations: (1) Defendants claimed in the position letter that when Poteat learned about the talent-balancing initiative on February 22, 2020, she was unaware that Plaintiff had requested a leave of absence but the record evidence establishes that she received an email on February 19, 2020, stating that Plaintiff had requested medical leave; (2) Defendants claimed in the position letter that Plaintiff's responsibilities were managerial, not physical, but the physicality of his position is established by the job description, which requires the ability to lift 25 pounds without assistance; (3) Defendants claimed in the position letter that Plaintiff had the authority to delegate any tasks he could not physically perform and that Poteat did not require Plaintiff to physically complete tasks himself but the record evidence establishes that Poteat chided Plaintiff for trying to delegate and ordered him to complete the work himself; and (4) Defendants claimed in the position letter that Poteat never asked Plaintiff to stay after the end of a shift to complete tasks but the record evidence establishes that she required him to stay after a shift to complete a task. [Id.] Thus, Plaintiff argues that these “several objectively false assertions in the position letter . . . could lead a reasonable jury to decide that [Defendants were] lying to cover up [an impermissible] motive.” [Id. at 33 (citing Castro v. DeVry Univ., Inc., 786 F.3d 559, 574 (7th Cir. 2015)).] Although “an employer's inconsistent explanations may . . . be probative of pretext,” Gomez v. Haystax Tech., Inc., 761 Fed.Appx. 220, 235 (4th Cir. 2019), the alleged inconsistencies Plaintiff relies on have nothing to do with Defendants' purported reason for terminating him, see id. at 236-37 (concluding that purported shifting explanations about the plaintiff's termination did not actually speak to the reason for her termination); see also Monroe v. Indiana Dep't of Transp., 871 F.3d 495, 506 (7th Cir. 2017) (concluding that an employer's “erroneous statement, while careless, is not significant enough to create a genuine issue of fact regarding whether [its] proferred reason for [the plaintiff's] discharge was pretextual”); Mercantanti v. WCI Operations LLC, 645 Fed.Appx. 228, 232 (3d Cir. 2016) (concluding that potentially inconsistent positions taken with the EEOC and the Court did not contradict the core facts the employer provided as support for its employment decision and were, therefore, insufficient to show that the proferred legitimate reasons were unworthy of credence); Hux v. City of Newport News, 451 F.3d 311, 315 (4th Cir. 2006) (“Once an employer has provided a non-discriminatory explanation for its decision, the plaintiff cannot seek to expose that rationale as pretextual by focusing on minor discrepancies that do not cast doubt on the explanation's validity, or by raising points that are wholly irrelevant to it.”); George v. Florence One Schs., No. 4:21-cv-2787-JD-KDW, 2023 WL 2394178, at *11 (D.S.C. Jan. 10, 2023) (“While material inconsistencies are probative of pretext, minor discrepancies or elaborative discussion will not suffice-a plaintiff must point to actual conflicting explanations which relate to the core substance of the employer's articulated justification.” (internal quotation marks omitted)), Report and Recommendation adopted as modified by 2023 WL 2042170 (D.S.C. Feb. 16, 2023). Any purported inconsistences related to whether Poteat knew about Plaintiff's request for medical leave when she learned about the talent-balancing initiative, whether Plaintiff's job was physical or managerial, whether Plaintiff had the authority to delegate tasks, and whether Poteat asked Plaintiff to stay after the end of his shift to complete tasks have nothing to do with Defendants' purported reason for terminating Plaintiff. Instead, the record shows that Defendants' explanation for Plaintiff's termination has remained unchanged since he was terminated. When he was terminated, he “was told that [he] had two poor performance evaluations and that was the reason for [his] termination.” [Doc. 5321 at 2.] After Plaintiff complained about his termination, Defendants investigated his complaint and determined that it had no merit and that Plaintiff was terminated because he rated below expectations on his last two job performance evaluations. [Doc. 53-22.] In response to the Charge, Defendants informed the EEOC that Plaintiff was terminated “as part of a Company-wide initiative in which all salaried Managers across the country who had received two consecutive below standard ratings on their performance evaluations would be terminated.” [Doc. 54-1 at 2.] As stated, in their motion for summary judgment, Defendants argue that Plaintiff was terminated as part of its talent-balancing initiative based on his job performance. [E.g., Doc. 53-1 at 2.] Therefore, this is not a case where Defendants have taken inconsistent positions regarding the reason Plaintiff was terminated.
Additionally, the Court is not convinced Plaintiff has shown that any of these are actually misstatements or that Defendants have taken a position in this litigation that is inconsistent with one taken in the position letter. The Court has already determined that Plaintiff's reliance on Poteat's requiring him to complete the pallets according to Defendants' standards fails to establish that Defendants did not generally allow him to delegate the physical duties that he could not perform. Moreover, Plaintiff's assertion that Poteat required Plaintiff to complete the pallets “prior to leaving” fails to establish any inconsistency because the disciplinary action does not indicate that Poteat told Plaintiff to complete the pallets at the end of his shift. [Doc. 53-14 at 16-17.]
Plaintiff next argues that Defendants have exaggerated Plaintiff's performance history by stating that he received multiple disciplinary actions in late 2019 and early 2020, when in fact he received one disciplinary action in early 2020 covering multiple dates. [Doc. 54 at 33; see id. at 12 n.8.] Plaintiff contends that Defendants cite these “to justify the termination.” [Id. at 33.] However, the Court disagrees. Defendants cite Plaintiff's disciplinary record to support their general position that Plaintiff's performance was substandard and that, even with opportunities for correction, it did not improve, but they have not deviated from their position that Plaintiff was terminated based on two consecutive “below expectations” evaluation ratings.
Finally, Plaintiff argues that Defendants have made arguments that contradict their own policies. [Id. at 34.] Plaintiff specifically references Defendants' position that Plaintiff did not request an accommodation because he did not use magic words and that expired disciplinary actions justified his termination. Plaintiff's argument with respect to his request for accommodation appears to be based on Defendants' Accommodations in Employment (Medical-Related) Management Guidelines, which state that “[w]henever an associate's doctor gives the associate work restrictions due to a medical condition, consider that a request for job assistance.” [Doc. 54-17 at 2; see Doc. 54 at 21 (asserting that “under [Defendants'] policy, [Plaintiff's] work restrictions should have been considered a request for accommodation”).] However, Defendants' corporate designee repeatedly testified that, as a member of management, Plaintiff would not have needed an accommodation for a lifting restriction because he could delegate any tasks that he could not perform. [Doc. 5426 at 15, 19, 24, 59.] Therefore, Defendants' position appears to be that it did not view Plaintiff's work restriction as a request for an accommodation because he would not have needed an accommodation to work within those restrictions. Additionally, as discussed, the Court concludes that Defendants referenced Plaintiff's disciplinary record to support their general position that Plaintiff's performance was substandard and not to justify his termination.
Job assistance includes reasonable accommodations. [Doc. 54-17 at 2.]
Plaintiff has failed to present sufficient evidence showing that the reasons given by Defendants for his termination were not the actual reasons, and he has also failed to raise a reasonable inference that ADA discrimination or retaliation was the real reason for termination. The ultimate question in an employment discrimination case is whether the employer intentionally discriminated against the plaintiff on a prohibited basis. Reeves, 530 U.S. at 146. Although the Court has applied the McDonnell Douglas framework in this case, it has done so while keeping that ultimate question in mind. After careful review of the record and the applicable law, the Court concludes that Plaintiff has failed to establish a “genuine, triable issue,” Celotex, 477 U.S. at 327, as to whether Defendants discriminated against him because of his disability or retaliated against him for engaging in protected activity. Accordingly, Defendants' motion for summary judgment should be granted with respect to Plaintiff's discrimination and retaliation claims.
Because the Court concludes that Defendants are entitled to summary judgment based on Plaintiff's failure to establish a question of fact as to whether Defendants' reason for terminating Plaintiff is a pretext for discrimination or retaliation, the Court declines to address Defendants' other arguments.
RECOMMENDATION
Wherefore, based upon the foregoing, the Court recommends that Defendants' motion for summary judgment [Doc. 53] be GRANTED.
IT IS SO RECOMMENDED.