Equal Employment Opportunity Commission v. Sappyann, Inc.

MOTION for Summary Judgment

M.D.N.C.May 26, 2017

1 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SAPPYANN, INC. d/b/a YESTERDAY’S PUB & GRILLE, Defendant. ___________________________________ ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:16-cv-104 EEOC’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT Pursuant to FED. R. CIV. P. 56(c), Plaintiff, Equal Employment Opportunity Commission (EEOC) respectfully submits this Memorandum of Law in Support of its Motion for Summary Judgment against Defendant, Sappyann, Inc., d/b/a Yesterday’s Pub & Grille. In this lawsuit, EEOC has alleged that Defendant failed to hire Aubrey Hawkins because he is HIV-positive, in violation of the Americans with Disabilities Act of 1990, as amended (“ADA”). EEOC has also alleged that Defendant failed to preserve Hawkins’ employment application for a minimum of (1) year in violation of Section 107(a) of the ADA, 42 U.S.C. § 12117(a) which incorporates by reference Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), and pursuant to 29 C.F.R. § 1602.14. EEOC is entitled to summary judgment as a matter of law because there is no genuine issue as to any material fact with regard to either claim. Accordingly, for the reasons herein, EEOC requests that the Court grant this Motion for Summary Judgment in its entirety. Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 1 of 15 2 I. STATEMENT OF UNDISPUTED FACTS A. Defendant’s Failure to Hire Aubrey Hawkins as a Server Aubrey Hawkins (“Hawkins”) has Human Immunodeficiency Virus (HIV). See Exh. 2 to Deposition of Joel Damin (hereafter “Damin Dep.”). In approximately mid- to late- April 2015, Hawkins submitted a paper employment application for employment in Defendant’s restaurant. Deposition of Ashley Gillespie1 (hereafter “Gillespie Dep.”) at 54. Hawkins was interested in a vacant Server position. Gillespie Dep. at 55. Servers are responsible for taking orders and delivering orders to tables, being hospitable to their guests, getting them what they need, cashing out their tables, and various duties associated with closing out their shifts such as stocking up for the next day. Gillespie Dep. at 47. See also Damin Dep.at 61-62. In evaluating applicants for Server positions, Defendant’s General Manager, Ashley Gillespie, looked for applicants who had previous experience serving in the restaurant industry. Gillespie Dep. at 46-47. Gillespie reviewed Hawkins’ application, and decided to contact him for an interview. Gillespie Dep. at 54-55. On or about April 22, 2015, Hawkins interviewed with Gillespie for a Server position. Gillespie Dep. at 55-56. Immediately following his interview with Gillespie, Hawkins met briefly with Defendant’s owner, Joel Damin, who also reviewed his application. Damin Dep. at 61-62. After the brief meeting with Damin, Hawkins again 1 Excerpts of the Deposition of Ashley Gillespie and the Deposition of Joel Damin are attached as Exhibits A and B, respectively. Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 2 of 15 3 met with Gillespie, who, with Damin’s approval, hired Hawkins as a Server. Gillespie Dep. at 25-26, 56, 61. Gillespie gave Hawkins the paperwork he needed to complete in order to begin working for Defendant, and told Hawkins to report to work at 5:00pm the following afternoon, April 23, 2015, to begin his first shift. Gillespie Dep. at 56-57. On April 23, 2015, Damin requested a meeting with Hawkins to discuss a rumor that Hawkins was HIV-positive. Damin Dep. at 69-70. Hawkins confirmed to Damin that he was HIV-positive. Damin Dep. at 71. Damin told Hawkins that because Hawkins was HIV-positive, he would not be able to work for Defendant. Damin Dep. at 70-72. Damin specifically told Hawkins that based on his, Damin’s, understanding of the Food Health and Safety Code, because of Hawkins condition, he would not be able to continue in the process for employment at Yesterday’s. Damin Dep. at 71-72. Hawkins subsequently provided Damin with some information about HIV and working in restaurants. In a letter to Damin dated April 24, 2015, Hawkins provided information about the limited ways HIV can be transmitted from one person to another, as well as information that it is illegal for employers to discriminate against persons who are HIV-positive. Damin Dep. at 72-75, Exh. 2 to Damin Dep. Damin reviewed the information Hawkins sent, but stood firm in his belief that Hawkins was not suitable to work as a Server because of his HIV status. Id. at 74-76. Hawkins and Defendant did not have any further discussion about Hawkins’ prospective employment. Damin Dep. at 76. Damin had final authority over Defendant’s hiring, and made the final decision not to hire Hawkins. Damin Dep. at 51, 69-72. Damon believed Hawkins posed a risk as a Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 3 of 15 4 Server in Defendant’s restaurant because he had a contagious disease and a blood-borne illness. Id. at 77. Damin was concerned Hawkins could spread HIV to Defendant’s customers if he sustained an injury which caused him to bleed, the risk resulting from the blood “possibly coming into contact with the food or beverage . . . which would be then ingested.” Damin Dep. at 78. Damin also believes HIV can be transmitted by ingesting food handled and contaminated by an HIV positive person if blood is involved. Id. at 80- 81. B. Facts Regarding HIV2 According to the Centers for Disease Control and Prevention (“CDC”), HIV can only be transmitted through sexual contact with an infected individual, contact between infected blood or blood products and a mucus membrane or damaged tissue or by receiving transfusions or the like from HIV contaminated blood or blood products,3 or prenatally from an infected mother to an infant during pregnancy, birth, or breast feeding. 2 Courts have taken judicial notice of facts about HIV and AIDS infection that are publicly available through the website for the Centers for Disease Control and Prevention (CDC) - www.cdc.gov. See, e.g., Wright v. Hayden, Civil Action No. 5-08-cv-179-R, 2009 U.S. Dist. LEXIS 26399, *7-8 (W.D. Ky. Mar. 31, 2009)(taking judicial notice of CDC’s guidelines regarding the known methods of HIV transmission); Muniz v. AMEC Constr. Mgmt., Civil Action No. CV-07-8066, 2009 U.S. Dist. LEXIS 26970, *17-18 (C.D. Cal. Mar. 30, 2009) (taking judicial notice of information about the plaintiff’s AIDS diagnosis available on the CDC’s website, which the court characterized as a “highly reputable source”); Steffan v. Cheney, 780 F. Supp. 1, 8 n.14 (D.D.C. 1991) (taking judicial notice of statistics compiled by the CDC regarding the manner in which HIV is usually contracted), rev'd on other grounds sub nom. Steffan v. Aspin, 8 F.3d 57, 303 U.S. App. D.C. 404 (D.C. Cir. 1993), and aff'd on reh'g en banc sub nom. Steffan v. Perry, 41 F.3d 677, 309 U.S. App. D.C. 281 (D.C. Cir. 1994). 3 According to the CDC, “You can’t get HIV from consuming food handled by an HIV-infected person. Even if the food contained small amounts of HIV-infected blood . . . exposure to the air, heat from cooking, and stomach acid would destroy the virus.” See https://www.cdc.gov/hiv/basics/transmission.html. Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 4 of 15 5 See www.cdc.gov/hiv/basics/transmission.html. The CDC’s most recent publication, effective January 31, 2014, does not include HIV or AIDS on its list of infectious and communicable diseases that are transmitted through the handling of food. “Department of Health and Human Services, Centers for Disease Control and Prevention, Diseases Transmitted through the Food Supply,” available at www.cdc.gov/foodsafety/pdfs/pathogens-by-food-handlers-508c.pdf. See also EEOC v. Prevo’s Family Market, Inc., 135 F.3d 1089, 1099-1100 (6th Cir. 1998) (Moore., J. dissenting) (observing that since the ADA’s enactment, neither HIV nor AIDS has ever appeared on the list of infectious diseases that could be communicated through the handling of food). HIV is not included on the North Carolina Food Code list of illnesses which must be reported by a restaurant employee to his or her manager. Exh. C, Excerpt from “North Carolina Food Code Manual,” Chap. 2: Management and Personnel, available at http://ehs.ncpublichealth.com/faf/index.htm. C. Facts Regarding Defendant’s ADA Record-Keeping Violation for Failure to Preserve Hawkins’ Employment Application As stated above, Hawkins submitted a paper employment application for a position in Defendant’s restaurant sometime in mid- to late- April 2015. Gillespie Dep. at 54. Gillespie personally received and reviewed Hawkins’ application before interviewing him on April 22, 2015. Gillespie Dep. at 54-55. Damin also reviewed Hawkins’ application on April 22, 2015, and returned the application to Gillespie. Damin Dep. at 61-62. Once the manager “on duty” receives an employment application he or she places Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 5 of 15 6 the application in a file cabinet in Defendant’s office within the restaurant. Gillespie Dep. at 34, 41-43. Damin admits that when EEOC asked Defendant to submit a copy of Hawkins’ application during the EEOC’s investigation of Hawkins’ underlying charge, Defendant was unable to locate the application. Damin Dep. at 37-38. Although Hawkins’ application should have been in Defendant’s office with all other applications Defendant received, Damin, who personally searched for the application and spoke with the managers to determine the whereabouts of the application, could not locate the application. Id. at 38-39. Damin admits that on or about July 2, 2015, he received EEOC’s “Notice of Charge of Discrimination” that accompanied Hawkins’ EEOC charge. Id. at 83-84. The Notice of Charge of Discrimination provided Defendant with information on Defendant’s obligation to preserve relevant personnel records in connection with the EEOC charge. See Exh. 4 to Damin Dep. (Notice of Charge of Discrimination). Defendant admitted in its Answer to EEOC’s Complaint that it “was unable to find the original or a copy of Hawkins’ employment application and produce the same for inspection by [EEOC] on [EEOC’s] onsite visit on August 27, 2015.” See ECF Doc. 4 (Defendant’s Answer) at ¶26. II. LEGAL ARGUMENT A. Summary Judgment Standard Summary judgment is appropriate where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 6 of 15 7 56(c); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995). Summary judgment may only be granted if the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). The moving party has the initial burden to show absence of evidence to support the non-moving party’s case. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994) (citing Celotex, 477 U.S. at 325). If the moving party carries this burden, the burden shifts to the nonmoving party that must come forward with evidence showing a genuine issue for trial. Matsushita Electric Industrial Vo. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). An issue is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). B. Failure to Hire Direct evidence of discrimination is evidence which, if believed, would prove the existence of a fact without any inferences or presumptions. O'Connor v. Consolidated Coin Caterers Corp., 56 F.3d 542, 548-549 (4th Cir. 1995), rev'd on other grounds, 517 U.S. 308 (1996). To avail itself of summary judgment based on direct evidence, a plaintiff must point to “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006) (quoting Taylor v. Virginia Union Univ., 193 F.3d 219, 232 (4th Cir. 1999)). “[T]he evidence must show that the employer announced, admitted, or ‘otherwise unmistakably indicated’ Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 7 of 15 8 that an impermissible consideration was a determining factor, or that discrimination can properly be assumed from the circumstances.” EEOC v. CTI Global Solutions, Inc., 815 F. Supp. 2d 897, 906 (D. Md. Sept. 2, 2011) (citing Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir. 1982)). Courts in the Fourth Circuit have held that statements can constitute direct evidence when they show that a discriminatory bias influenced a manager’s personnel decision. See, e.g., Taylor v. Virginia Union Univ., 193 F.3d 219, 243-244 (4th Cir. 1999) (court held unequivocal statement that Chief of Police would never send a woman to policy academy was direct evidence of discrimination against female plaintiffs); Wilhelm v. Blue Bell, Inc., 773 F.2d 1429 (4th Cir. 1985) (court held there was direct evidence of age discrimination when a manager stated he wanted “young men” not “old guys”); Bass v. Wilson, 155 F.R.D 130, 135 (E.D.N.C. 1994) (direct evidence of age discrimination established when hiring manager stated plaintiff was not hired because the manager had a chance to hire “a boy…who was a lot younger”). See also Boldridge v. Tyson Foods, Inc., Case No. 05-4055-SAC, 2007 U.S. Dist. LEXIS 19942, *16 (D. Kan. Mar. 20, 2007) (court held decision-maker's explanation to plaintiff that “[w]e don’t hire disabled people” was direct evidence of defendant’s intent to discriminate based on plaintiff’s disability). 1. Hawkins has a disability within the meaning of the ADA. Hawkins has a disability within meaning of the ADA. Hawkins is HIV-positive. See Exh. 2 to Damin Dep. The ADA recognizes HIV as a physical impairment because it Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 8 of 15 9 is a “physiological disorder or condition . . . affecting one or more body systems,” which is inclusive of the immune system. 29 C.F.R. § 1630.2(h)(1); see also 42 U.S.C. §12102(2)(A). The “functions of the immune system” are also recognized as major life activities. 42 U.S.C §12102(2)(A); (29 C.F.R. § 1630.2(i)(1)(ii). Thus, he has a physical impairment that substantially limits him in one or more major life activities. 42 U.S.C. §12102(2)(A); 29 C.F.R. §1630.2(g)(1)(i). 2. Defendant failed to hire Hawkins because Hawkins is HIV-positive. Here, the discriminatory attitude of Damin, Defendant’s owner, toward Hawkins is reflected in the evidence before the Court. Damin’s discriminatory attitude bears directly on the contested employment decision, Defendant’s failure to hire Hawkins. Damin made the final decision not to hire Hawkins. Damin Dep. at 69-72; Gillespie Dep. at 61. Damin admits that he did not hire Hawkins because Hawkins is HIV-positive, and testified in detail about his reasoning. See Damin Dep. at 69-72, 77-81. Damin admits that even though he received and reviewed the information Hawkins’ provided about HIV and the ways in which it can be transmitted, he, Damin, stood firm in his position that Hawkins was not suitable to work for Defendant because he is HIV-positive. Id. at 72-76. Damin believed Hawkins posed a risk as a Server in Defendant’s restaurant because he has a contagious disease and a blood-borne illness. Damin at 77. Damin was concerned that Hawkins could spread HIV to Defendant’s customers if Hawkins sustained an injury which caused him to bleed, the risk resulting from the blood “possibly coming into contact with the food or beverage . . .which would be then ingested.” Id. at 77-78. Damin Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 9 of 15 10 believes HIV can be transmitted by ingesting food handled and contaminated by an HIV positive person if blood is involved. Id. at 80-81. Notably, Damin is mistaken as to virtually every belief he has about HIV. See Section I.B, above. Damin’s testimony plainly shows Defendant refused to hire Hawkins because he is HIV-positive. His testimony provides direct evidence that discrimination occurred without the need for any inferences or presumptions whatsoever. Based on this evidence, a rational trier of fact would have to conclude that Defendant violated the ADA by failing to hire Hawkins because he is HIV-positive. Accordingly, EEOC is entitled to summary judgment on its failure to hire claim. C. The Record Conclusively Establishes that Defendant Failed to Preserve Hawkins’ Employment Application in Violation of the ADA’s Record- Keeping Regulations. EEOC alleged in its Complaint that “[s]ince at least on or about August 27, 2015, Defendant has failed, in violation of Section 107(a) of the ADA, 42 U.S.C. § 12117(a), which incorporates by reference Section 709(c) of Title VII, 42 U.S.C. § 2000e-8(c), to make and preserve records relevant to the determination of whether unlawful employment practices have been or are being committed.” See ECF Doc. 1 (Complaint) at ¶26. Specifically, “[d]uring an EEOC onsite tour of Defendant’s restaurant on or about August 27, 2015, Defendant was unable to locate or provide EEOC with a copy of Hawkins’ application for employment which was given to Defendant less than one (1) year prior to August 27, 2015.” Id. EEOC’s regulation on preservation of records in ADA cases is further codified at Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 10 of 15 11 29 C.F.R. §1602.14: Any personnel or employment record made or kept by an employer (including but not necessarily limited to requests for reasonable accommodation, application forms submitted by applicants and other records having to do with hiring, promotion, demotion, transfer, lay- off or termination, rates of pay or other terms of compensation, and selection for training or apprenticeship) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later . . . 29 C.F.R. §1602.14 (emphases added). The Fourth Circuit has long recognized the importance of the EEOC’s record- keeping provisions in litigation. See EEOC v. American Nat'l Bank, 652 F.2d 1176, 1195- 1196 (4th Cir. Va. June 26, 1981) (“The affirmative obligation imposed by § 1602.14(a) to preserve records was clearly designed to protect [ADA] plaintiffs from an employer's destruction of possibly damaging evidence . . . In consequence, holding [an] employer to the normal litigation consequences of a failure to maintain relevant employment records imposes no higher standard than that dictated by sound business judgment in respect of the maintenance of all business records having potential relevance in any of the litigation patterns to which businesses stand constantly exposed.”). District courts have granted partial summary judgment to EEOC in cases where defendants failed to preserve employment records in violation of 29 C.F.R. §1602.14. See, e.g., EEOC v. LA Weight Loss, 509 F. Supp. 2d 527, 537-538 (D. Md. Aug. 31, 2007) (holding defendant breached duty under 42 U.S.C. § 2000e-8(c) and 29 C.F.R. §1602.14 to preserve employment records relevant to underlying retaliation claim and awarding partial summary judgment to EEOC). EEOC v. C.M.I., Inc., Civil Action No. 87-2213-O, 1988 U.S. Dist. LEXIS Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 11 of 15 12 12147 (D. Kan. Oct. 3, 1988)(granting partial summary judgment to EEOC because evidence clearly showed defendant failed to preserve employment applications pursuant to §1602.14). Here, the record irrefutably shows Defendant failed to preserve Hawkins’ employment application for the requisite one year minimum. Hawkins submitted a written employment application to Defendant in mid- to late-April 2015. Gillespie Dep. at 54. Defendant clearly acknowledges it was in possession of Hawkins’ application because Gillespie testified that she personally received and reviewed Hawkins’ application. Gillespie Dep. at 54. Damin testified that at one point, he, too, was in physical possession of Hawkins’ application, when he briefly met with Hawkins on April 22, 2015. Damin Dep. at 61-62. Damin admitted that when EEOC asked Defendant to submit a copy of Hawkins’ application during the EEOC’s onsite investigation on August 27, 2015, Defendant was unable to locate the application. Id. at 37-38; see also ECF Doc. 4 at ¶26. According to Damin, Hawkins’ application should have been in Defendant’s office along with all other applications Defendant had received. Damin at 38. Damin personally searched for the application and spoke with the managers to determine the whereabouts of the application, but was unable to locate the application. Id. at 38-39. Defendant admitted in its Answer to EEOC’s Complaint that Defendant “was unable to find the original or a copy of Hawkins’ employment application and produce the same for inspection by [EEOC] on [EEOC’s] onsite visit on August 27, 2015.” See ECF Doc. 4 at ¶26. Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 12 of 15 13 The evidence clearly shows Defendant failed to preserve Hawkins’ application within approximately four months of when Hawkins applied, which amounts to a violation of the ADA’s requirement to keep such record for at least one year.4 Considering all record evidence, no trier of fact could reasonably conclude that Defendant preserved Hawkins’ application in compliance with the ADA’s record-keeping requirement. Accordingly, EEOC is entitled to summary judgment on its record keeping claim. III. CONCLUSION Based on the record evidence in this case, there is no genuine issue of material fact as to either: (1) EEOC’s claim that Defendant violated the ADA by failing to hire Hawkins; or (2) EEOC’s claim that Defendant violated the ADA record-keeping requirement by failing to preserve Hawkins’ employment application. Accordingly, EEOC is entitled to judgment as a matter of law, and requests that this Court grant summary judgment for EEOC on all claims. Respectfully submitted, This 26th day of May, 2017. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 4 Moreover, Defendant failed to preserve Hawkins’ employment application throughout final disposition of this action. See 29 C.F.R. §1602.14 ( “Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under title VII, the ADA, or GINA, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action.”). EEOC did not plead this specific violation in the Complaint because Defendant failed even to preserve the application for the minimum period of one year. Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 13 of 15 14 JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel LYNETTE A. BARNES (NC Bar 19732) Regional Attorney KARA GIBBON HADEN Supervisory Trial Attorney /s/ Darryl L. Edwards_______________ DARRYL L. EDWARDS (PA Bar ID #205906) Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, NC 28202 Telephone: (704) 954-6467 Facsimile: (704) 954-6412 E-mail: darryl.edwards@eeoc.gov Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 14 of 15 15 CERTIFICATE OF SERVICE I hereby certify that I have this day electronically filed the above Plaintiff EEOC’s Memorandum of Law in Support of Its Motion for Summary Judgment with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to counsel of record at the e-mail address listed below. Counsel for Defendant: Richard M. Wiggins rwiggins@mccoywiggins.com Kenneth B. Dantinne kdantinne@mccoywiggins.com This 26th day of May, 2017. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION /s/ Darryl L. Edwards_______________ DARRYL L. EDWARDS (PA Bar ID #205906) Senior Trial Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Charlotte District Office 129 West Trade Street, Suite 400 Charlotte, NC 28202 Telephone: (704) 954-6467 Facsimile: (704) 954-6412 E-mail: darryl.edwards@eeoc.gov Case 1:16-cv-00104-TDS-JEP Document 27 Filed 05/26/17 Page 15 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. SAPPYANN, INC. d/b/a YESTERDAY’S PUB & GRILLE, Defendant. ___________________________________ ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:16-cv-104 INDEX OF EXHIBITS REFERENCED IN EEOC’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT EXHIBIT DESCRIPTION A Excerpts from Deposition of Ashley Gillespie B Excerpts from Deposition of Joel Damin C Excerpt from “North Carolina Food Code Manual” D Unpublished Opinions Cited in EEOC’s Memorandum of Law Case 1:16-cv-00104-TDS-JEP Document 27-1 Filed 05/26/17 Page 1 of 1 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 25 1 have anyone at the time, so it was kind of lack of 2 options as well. 3 Q. Okay. And did you have a conversation with Joel about 4 your disagreement? 5 A. I don't really recall having a conversation. I mean, 6 Joel and I had a good relationship as far as there never 7 had to be a formal meeting. We, you know, just 8 conversed with each other. So I'm sure I expressed that 9 we should hire outside, we should look for someone that 10 is experienced, and we did try people here and there but 11 never -- but she was the head honcho of the kitchen. 12 Q. Do you know of any reason why he would have selected 13 her, Kat? 14 A. Lack of options. 15 Q. Did you disagree over any other employee-type matters 16 with Joel that you can think of? 17 A. I'm assuming the reason I'm also here, with the Aubrey 18 situation, correct? 19 Q. Yeah, we'll get to that. 20 A. Okay. 21 Q. So you disagreed with him over that, is that what you're 22 saying? 23 A. Yes. 24 Q. And to be clear, you disagreed with him over the hiring, 25 if you will, of Aubrey Hawkins? Exhibit A Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 1 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 26 1 A. No, I'm the one that actually hired him. 2 Q. Okay, so we'll clear that up as well. 3 A. Okay. 4 Q. Other than over Aubrey and over Kat, can you think of 5 any other situations involving employees where you 6 disagreed with Joel? 7 A. Not right off the top of my head. I'm sure there were 8 times. 9 Q. Okay. Overall though. you said you think you had a good 10 working relationship with him? 11 A. Yes. 12 Q. And you said that you disagreed with him over raises? 13 A. Uh-huh. 14 Q. Is there a particular person that you can recall he gave 15 a raise and you didn't agree with it? 16 A. Yes, Kevin, one of our kitchen guys. 17 Q. And what was Kevin's title? Was he a cook or -- 18 A. He was a cook. 19 Q. And he received a raise? 20 A. He did. 21 Q. Do you know how much the raise was for? 22 A. I don't remember. It was a couple of dollars an hour 23 raise. 24 Q. Why do you believe he got the raise from Joel? 25 A. I'm not really sure. Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 2 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 34 1 yes, we would do a written warning following up that we 2 had to sign, they had to sign, and Joel kept all of 3 those in our employee folders. 4 Q. So all of the, like, written warnings were kept where? 5 A. In their individual employee file in the office. 6 Q. Were they -- you say each employee had a file? 7 A. Yes. 8 Q. Was it maintained in like a file cabinet -- 9 A. Yes. 10 Q. -- or how? 11 A. File cabinet. 12 Q. In a file cabinet, all right. Do you know of anything 13 else that was maintained in the file cabinet that had to 14 do with Yesterday's employees? 15 A. Well, in that file cabinet was all of their information, 16 so documents that they had to sign prior to being hired, 17 as well as, you know, if they had direct deposit, 18 usually a copy of a voided check of theirs and pretty 19 much write-ups. 20 Q. Do you know if Yesterday's had an employee handbook 21 after Joel took over? 22 A. I believe he just continued the employee handbook that 23 was there previously from the Pikes, so yes. 24 Q. And where was that kept or maintained? 25 A. We had a master copy, and the employee handbook was Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 3 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 41 1 factors. 2 Q. Factors like what? 3 A. Joel's inexperience. You know, he didn't -- he never 4 owned a business or a restaurant before. So you know, 5 again, like I said, he would pay this guy at the bar to 6 fix the chairs and this guy to power wash the stuff when 7 it was kind of, you know, unnecessary. Extra little 8 money here and there that was going out the window. 9 I mean, my ex-husband owned a restaurant. We 10 tried to, you know, cut ties here and there, you know, 11 save nickels and pennies here that, you know, could 12 eventually add up to a couple of dollars that you would 13 save, and I don't feel like he did that. And I think it 14 was mainly because he was absent so much with his other 15 job trying to maintain the bills, you know, to make sure 16 he at least had this money coming in to pay bills for 17 the restaurant. I think his absence created almost a 18 daycare for people to do what they wanted to do, which 19 was the reason that I kind of left. I just was kind of 20 fed up with it. 21 Q. All right. You said that you did have the authority to 22 hire employees at Yesterday's? 23 A. Yes. 24 Q. So how does the application process or how does the 25 hiring process get started? Is that when someone comes Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 4 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 42 1 in and applies for a job? 2 A. Yes. 3 Q. And does the person fill out an application? 4 A. They do. 5 Q. They fill out a paper application? 6 A. Paper application. 7 Q. What happens to the application when someone fills it 8 out? What's the next step? 9 A. It's given to whatever manager is on duty the day of. 10 We keep them on file, and when we start our hiring 11 process we kind of go to last in. You know, we look at 12 all of the applications that have been coming in. We 13 look at the best candidates, we call them back. We 14 usually sit down for an interview, usually two 15 interviews. Since we did have a couple of managers 16 there, we didn't want one person's opinion. We wanted a 17 couple of different people's opinions so -- 18 Q. Okay, I'm going to back up just a bit and then kind of 19 go through all those that you mentioned, all the steps 20 that you mentioned. You said that you keep applications 21 on file? 22 A. Yes. 23 Q. On file where? 24 A. File cabinet in the folder. 25 Q. Who places the application there? Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 5 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 43 1 A. Managers. 2 Q. So that would be you, correct? Would Kat receive 3 applications? 4 A. Yes. 5 Q. Would Joel himself receive applications? 6 A. Yes. 7 Q. Are there any other managers who would receive -- 8 A. Mike. 9 Q. And that's Stockdale? 10 A. Yes. 11 Q. All right. How long did you maintain applications in 12 the file? 13 A. Years. 14 Q. How many years? 15 A. Probably three years at least. I mean, we were -- we 16 just always kept them around. 17 Q. Okay, so a person who applied, their application should 18 be in that file for about three years, is that what you 19 are saying? 20 A. Should be, uh-huh. I don't remember ever throwing any 21 away. 22 Q. Okay. Interesting that you volunteered that. Why would 23 you bring that up? 24 A. I'm just saying we just always keep papers around all 25 the time. Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 6 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 46 1 Q. Who would normally do the first interview? 2 A. There was no set in stone record of who would do first. 3 Usually whoever called them would do the first 4 interview. 5 Q. Whichever manager? 6 A. Whichever manager called would do the first interview, 7 and if that manager liked them and thought that we could 8 possibly bring them on our staff, then another manager 9 would sit down and talk to them, maybe with Joel, maybe 10 without Joel. Maybe Joel would be a second interview. 11 It just all depended on who was around. 12 Q. Okay. Would you say that you would be able to hire your 13 staff and have final authority to do so, or would it 14 always have to go through -- 15 A. We worked as a team, so we -- I don't feel one of us 16 would hire without the other's acceptance and knowledge 17 of it. 18 Q. So if you thought a candidate would be a good fit for a 19 certain position, you'd hire them but you would also run 20 it by your fellow managers, is that fair to say? 21 A. Yes. Yes. Usually that's what the first interview was 22 for. If they passed that, then we would let the other 23 managers interview, make sure they had the same feeling 24 that we did and thought they were a good candidate. 25 Q. All right. Did you ever have to do hiring for the Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 7 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 47 1 server position in particular? 2 A. Yes. 3 Q. What exactly is a server responsible for? 4 A. Knowledge of the menu, food and beverages, have 5 personality, cleanliness, able to talk to people, work 6 well with others. 7 Q. You gave me all -- is it fair to say would that be 8 qualities that you would look for in a server? 9 A. For sure, yeah, experience, you know. 10 Q. When you say experience, what do you mean? 11 A. Experience, past experience of being in the server 12 industry. Those are always pluses. 13 Q. Okay, and then what would you say are the duties of the 14 servers? 15 A. Duties of the servers would be, you know, to take 16 orders, to be hospitable to their guests, you know, kind 17 of get them what they need, you know, take their food to 18 them, keep their drinks full, napkins, cashing out their 19 tables, be it cash, credit, however, and then end of the 20 night duties or end of their shift duties, things to 21 stock up for the day, ice, you know, things like that. 22 Q. When you brought an employee on board, let's say the 23 person was a server -- 24 A. Uh-huh. 25 Q. Do you remember any type of practice where you hired Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 8 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 54 1 friends with and said that he wanted a job application. 2 So I gave his friend one, and I -- the first time I met 3 him was when he came in for his interview with me. 4 Q. Okay. Do you know the friend's name? 5 A. Zack Herman. 6 Q. And so you gave Zack the application for Aubrey? 7 A. I believe that's how it went, yes. 8 Q. And was that in April 2015? 9 A. I am assuming. 10 Q. All right. About how long went by between the time that 11 you gave Zack the application for Aubrey and then the 12 time that you interviewed him? 13 A. I don't remember. 14 Q. Was it -- 15 A. A few -- a couple days maybe. It wasn't -- 16 Q. Okay, fair enough. 17 A. -- a lengthy amount of time. 18 Q. And did you personally review his application? 19 A. I did. 20 Q. What, if anything, do you remember about -- remember 21 from his application? 22 A. I don't remember a lot. I remember he was doing like 23 personal training stuff, like at a gym. And he had, 24 from what I recall, had just recently moved back to the 25 area because he was originally from the area but left, Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 9 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 55 1 moved out of state for a while, and then he was back. 2 So he was just trying to get a job under his belt. 3 Q. Do you remember anything about his experience in the 4 restaurant business? 5 A. I don't really recall a lot of experience. It doesn't 6 mean he didn't have it, I just don't remember a lot. I 7 know he did some modeling stuff, like I said, and 8 personal training. I don't remember a lot of experience 9 in the restaurant. 10 Q. So then did you make the decision to reach out to him 11 for an interview? 12 A. Yes, I believe I did. Yes. That was one of those days 13 -- that I interviewed him was one of those days that we 14 had interviewed multiple people. 15 Q. Okay. 16 A. So it was one of those hiring -- where we had a couple 17 of spots that we needed to fill pretty soon. 18 Q. Okay. Were you interviewing him for any particular 19 position? 20 A. Nothing in particular. A server, I think, is what he 21 was interested in. 22 Q. Okay. When you interviewed Aubrey, do you remember 23 anything about how the interview went? 24 A. Nothing really stands out. I thought it was just a 25 normal interview. Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 10 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 56 1 Q. Based on his interview did you want to proceed with 2 hiring him? 3 A. At the time, yes. He was -- I had given him the 4 paperwork to be hired and had asked him to come in the 5 next day. 6 Q. What paperwork are you referring to? 7 A. His employee handbook for him to review, to make sure he 8 wanted to work for us, as well as W-2 papers and other 9 important documents that he needed to fill out if he did 10 want to work for us. 11 Q. Okay. And did he complete those documents, do you 12 recall? 13 A. I do not recall because the next time he came back in, 14 which was the following day, he spoke and saw Joel. So 15 I don't know if he gave Joel those documents or not. 16 Q. When you gave him the documents, you told him to come 17 back the next day? 18 A. I did. 19 Q. And he was going to start working that day? 20 A. Yes, I assume he was. 21 Q. Okay, did -- 22 A. I assumed he was via Joel approval. 23 Q. Okay. Did you give him a schedule to work at that time? 24 A. I don't think I did. I may have. I may have said -- I 25 told him to be back at a certain time, at 5 o'clock the Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 11 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 57 1 next day. I don't know if I gave him -- I don't recall 2 giving him any previous days at the time, but again, I 3 had hired a couple of people that day so -- 4 Q. Okay, why did you tell him to come back at 5 o'clock? 5 Is that when that shift started or what? 6 A. Yes. 7 Q. All right. So then the next day Aubrey comes into the 8 restaurant, correct, and you said he spoke with Joel 9 then? 10 A. The next day, from my understanding, Joel called him and 11 asked him to come in a little earlier to talk to him, 12 and I wasn't there that day. 13 Q. Why were you not there? Were you not scheduled? 14 A. I think I worked that night. I think I was off during 15 the day when he spoke and he came by. 16 Q. Why did Joel call him to come in earlier that day? 17 A. He wanted to, I guess, do his part of the interview with 18 him and review his paperwork. 19 Q. Okay. Do you know at that time -- or let me back up. 20 Before Joel spoke to him would you have considered 21 Aubrey to be hired? Would you say that you had hired 22 him or -- 23 A. I would say Aubrey was probably -- had the understanding 24 that he was hired, yes. 25 Q. Okay. And did he ever start, like, officially working Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 12 of 13 Ashley Harrington Gillespie 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 61 1 about Aubrey working there to Joel? 2 A. I sure she -- yes, I believe she did. 3 Q. You believe that based on what, did she tell you that? 4 A. Yes. 5 Q. Okay. Have you told me about everyone who you think 6 didn't want to work with Aubrey because of his status? 7 A. Everyone that I can recall. 8 Q. Okay, and what is McKenna's last name? 9 A. I have no idea. 10 Q. I think I can handle that one. That's a pretty unique 11 name. 12 A. Yes. 13 Q. Did Joel make the final decision in not hiring Aubrey? 14 A. Yes. 15 Q. And my question was phrased badly, because you said you 16 thought he was hired? 17 A. Yes. 18 Q. So Joel made the final decision not to have him actually 19 start working as a server? 20 A. Yes. 21 Q. Okay, thank you. Did you ever have a conversation with 22 Aubrey after you interviewed him? 23 A. I've actually gotten to know Aubrey pretty well since 24 then. 25 Q. Okay. Case 1:16-cv-00104-TDS-JEP Document 27-2 Filed 05/26/17 Page 13 of 13 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 37 1 A. Anne, A-N-N-E, Wondrasek, W-O-N-D-R-A-S-E-K. 2 Q. I have never seen that name, so I'm going to have to 3 go with your spelling. Close enough. 4 Are there any other managers? 5 A. Jonathan Nyquist. 6 Q. Any others? 7 A. None that I can recall. 8 Q. So are you saying that jointly, yourself, Ashley, 9 Katherine, Anne, and Jonathan would share 10 responsibility for maintaining the applications? 11 A. Yes, sir. 12 Q. How long did you keep the applications maintained? 13 A. I believe we were required to keep them two years. 14 Q. You were required to keep them two years, based on 15 what, if you know? 16 A. Their application date. 17 Q. Okay. So you keep them two years after the 18 application date, but why would you do that? Based on 19 what? Is that what you understood the law to be? 20 A. Yes, sir. 21 Q. Okay. Now, you remember Aubrey Hawkins; correct? 22 A. Yes, sir. 23 Q. Do you remember -- well, first, who was he? Was he an 24 applicant to the restaurant? 25 A. Oh, yes, sir. Exhibit B Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 1 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 38 1 Q. Do you remember being asked to provide, during the 2 EEOC's investigation, a copy of Mr. Hawkins' 3 application? 4 A. Yes, sir, they asked for it. 5 Q. And do you recall that you were unable to find it, to 6 provide it to the EEOC? 7 A. Yes, sir. 8 Q. Do you know why it would have not been available? 9 A. I do not know. 10 Q. Did you check to see if the applications -- excuse 11 me -- Mr. Hawkins' application was in the same place 12 as all of the applications were maintained? 13 A. Yes, sir -- could you repeat the question? 14 Q. Sure. 15 Did you check to see, yourself, whether 16 Mr. Hawkins' application was in the place where you 17 maintained the rest of the applications? 18 A. Yes, sir. 19 Q. And it was not there? 20 A. Correct. 21 Q. Were there other applications there? 22 A. Yes, sir. 23 Q. Did you ever attempt to find out where his application 24 might have gone; say, talk to the other managers in 25 the store? Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 2 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 39 1 A. Yes, sir. 2 Q. What was -- who did you speak to? Did you speak to 3 all of the managers? 4 A. Yes, sir. At -- I do not recall if Ashley Harrington 5 still worked there at the time of the EEOC interviews. 6 Q. Okay. Thanks for clarifying that. 7 Who did you speak with and what did they say 8 about where Mr. Hawkins' application might have gone? 9 A. I spoke with all of the remaining managers, and they 10 were not able to locate it either. 11 Q. If you were -- well, this assumes that you can 12 actually access the applications, I know that you 13 can't, but if you were able to access them, at the 14 time that you closed the restaurant, would those 15 applications still have all been there, in the office? 16 A. Unless they had been moved, yes, sir. 17 Q. Once a person completes an application, who then 18 reviews the application? 19 A. Normally, the manager on duty, when the application 20 was received. 21 Q. And then after -- after an application is reviewed by 22 the manager on duty, do you extend interviews, on the 23 spot, to some of the applicants? 24 A. No, sir. I would not know. 25 Q. All right. Well, tell me what would happen -- what Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 3 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 51 1 A. Yes, sir. 2 Q. Okay. Would you say you have final authority on 3 hiring matters, as far as hiring employees? 4 A. At the time, yes. 5 Q. At the time, meaning when the restaurant was open? 6 A. Yes, sir. 7 Q. Okay. When you hire -- strike that. 8 When you bring in someone on a trial basis, 9 what would be reasons why you would do that, bring 10 them in on a trial basis, as opposed to hire them 11 outright? 12 A. We had some bad experiences with past employees, where 13 they were not able to accomplish their assigned 14 duties. 15 Q. Okay. So then you started, in essence, doing trial 16 runs for employees? 17 A. Yes, sir. 18 Q. When did you start that practice? 19 A. I do not recall the specific date. 20 Q. Okay. During the trial period, is that employee being 21 paid? 22 A. Yes, sir. 23 Q. Does that person, who's on the trial period, they 24 receive a schedule ahead of time, of the hours that 25 they're supposed to work for the week; is that Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 4 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 61 1 correct? 2 A. Yes, sir. 3 Q. Tell me when you first met him and how you guys came 4 to interact. 5 A. Ms. Harrington said there was a gentleman there, 6 applying for a job, and asked if I had time to meet 7 him. 8 Q. All right. Had she interviewed him before she 9 introduced or told you to meet with him? 10 A. I don't remember. 11 Q. All right. So then you -- did you then interview him? 12 A. I spoke with him. I did not interview him. 13 Q. Okay. What did you speak with him about? 14 A. Generalities, in regards to his application. 15 Q. Do you know if he had applied to be a server? 16 A. I think he applied to be a server. 17 Q. What are -- it may sound obvious, but I'd like to have 18 your answer on the record -- what is it that servers 19 are responsible for, all of their responsibilities? 20 A. All of their responsibilities? 21 Q. Yes. 22 A. Interacting with the customers. Receiving food orders 23 and drink orders. Placing the orders into the 24 computer system. Receiving the food from the kitchen 25 and taking it to the customers. Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 5 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 62 1 Q. Okay. 2 A. Addressing needs the customers may have, during their 3 experience. Presenting the check and receiving 4 payment. And then associated cleaning tasks before, 5 during, and after shift. 6 Q. All right. So the first time you spoke with 7 Mr. Hawkins, you -- that was not an interview; right? 8 A. Not by myself, no. 9 Q. Okay. How long did your conversation with him last, 10 the first time you interacted with him? 11 A. It was very brief. I don't recall what was going on, 12 but I was doing a number of things at the time. 13 Q. Okay. Was it, you know, five minutes or less? 14 A. Approximately. 15 Q. Do you recall how your encounter with him ended on 16 that occasion? Like what was the resolution, I guess, 17 of your interaction with him that time? 18 A. I did not have any resolution. I gave his 19 information -- his application back to Ms. Harrington, 20 and then proceeded on with my additional duties. 21 Q. Okay. Do you know why Ashley Harrington wanted you to 22 meet with him? 23 A. I generally met with most of the applicants, even if 24 for basic introductions. 25 Q. After you met with him -- at that time, he wasn't made Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 6 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 69 1 A. It was at the same time. 2 Q. Okay. Did you ever meet with him again, after the 3 brief encounter that you had with him on April -- 4 about April 22nd? 5 A. Yes, sir. The next -- it was not the next day. In 6 the day or two later, on the record, April 23rd. 7 Q. Okay. So you believe that you met with Mr. Hawkins on 8 April 23rd? 9 A. Yes, sir. 10 Q. And what was your reason for meeting with him on the 11 23rd? 12 A. As stated in the document, I had received information 13 indicating that Mr. Hawkins may have been HIV 14 positive. 15 Q. And you said that it stated in the document, do you 16 agree with that? 17 A. Yes, sir. 18 Q. Okay. Where did you receive the information that 19 Mr. Hawkins is HIV positive? 20 A. Through other people, not Ms. Harrington. 21 Q. Who are the other people? Were they employees of the 22 restaurant? 23 A. No, it was through other people that were friends or 24 acquaintances of the people that told me. So it's 25 coming through like second, and third, and fourth Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 7 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 70 1 parties, by the time it got to me. 2 Q. Okay. 3 A. To where they specifically got the information from, I 4 do not know. 5 Q. Okay. How did the information, that Mr. Hawkins was 6 HIV positive, make you feel about him as an employee? 7 A. I believed that he would no longer be able to be an 8 employee, as he had a contagious condition, in 9 compliance with the Food and Health Safety Code. 10 Q. Did you then -- strike that. 11 Did you ask to meet with Mr. Hawkins the 12 next day, on April 23rd? 13 A. Yes, sir. 14 Q. Okay. So that meeting was initiated by you? 15 A. Through -- I believe, through Ms. Harrington. 16 Q. Okay. Fair enough. 17 And then you did meet with Mr. Hawkins on 18 the 23rd? 19 A. I believe that date to be correct, yes, sir. 20 Q. And when -- what did you discuss with him? 21 A. I asked him to clarify some of the statements that he 22 had made, from when I had initially spoken with him. 23 Q. Okay. What statements did you ask him to clarify? 24 A. He had disclosed he had an autoimmune disorder. 25 Q. So are you saying that he had disclosed that he had an Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 8 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 71 1 autoimmune disorder before you got, kind of, the 2 rumors that he was HIV positive? 3 A. Yes, sir. 4 Q. Okay. Why, at the time, in the initial conversation 5 you had with Mr. Hawkins, did you not ask about the 6 autoimmune disorder? 7 A. I'm not a medical professional, and I had no clue to 8 what he was referring, at the time. 9 Q. Did you know what an autoimmune disorder was? 10 A. In reflection now, yes. At the time, I was busy with 11 other things, and just simply did not consider it. 12 Q. Did he tell you about the autoimmune disorder or was 13 that on his application? 14 A. I believe he told me. 15 Q. Okay. When you asked Mr. Hawkins, in this second 16 follow-up conversation with him, about clarifying his 17 statements from your initial conversation, what was 18 his response? 19 A. He fully disclosed that he was HIV positive. 20 Q. What did you say to him in response -- or how did you 21 react to him, in response, once he disclosed that 22 information to you? 23 A. I told him that based off of my understanding of the 24 Food Health and Safety Code, that due to his 25 condition, that he would not be able to continue in Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 9 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 72 1 the process, for possibly becoming an employee at 2 Yesterday's. 3 Q. Okay. And what do you recall he said in response or 4 how he reacted in response? 5 A. He said he disagreed with me and that wanted -- he 6 wanted to provide me some documentation, I don't 7 recall specifically as to what, that essentially 8 proved that he thought he should be able to continue. 9 Q. Okay. Did he submit the documentation to you at that 10 time? 11 A. Not at that moment, no, sir. 12 Q. Okay. Did he say that he was going to get it to you 13 in the future? 14 A. Yes, sir. 15 Q. Either later that day or the next day? 16 A. He did not specify a time. 17 Q. Okay. And did he ever provide the documentation to 18 you? 19 A. I did receive some e-mails from him, at a later point 20 in time. 21 Q. Do you recall how much time passed between the last 22 conversation you had with him, where he disclosed he 23 was HIV positive, and the time you received his 24 e-mail? And I'm just asking you if you know how much 25 time went by? Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 10 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 73 1 A. If I recall, it was a few weeks. 2 Q. Okay. Do you recall what documentation he provided to 3 you, about his HIV status? 4 A. No, sir, I do not. 5 Q. You remember the e-mail, though; correct? 6 A. I remember receiving an e-mail from him. 7 Q. Did the e-mail have attachments or did it have 8 information in it about his status? 9 A. I believe it had attachments. 10 Q. Okay. I'm going to mark a document, Exhibit 2, and 11 have you take a look at it. 12 (PLAINTIFF EXHIBIT NUMBER 2 WAS MARKED.) 13 Q. (Handing.) 14 A. (Perusing.) 15 Q. All right. Do you recognize the document, Exhibit 2, 16 that I've handed you? 17 A. Not particularly, in any great detail. 18 Q. Okay. Have you seen it before, before today? 19 A. He may have included this in the e-mail. 20 Q. Okay. Does the e-mail that you kind of have in 21 mind -- I mean, do you have in mind something 22 different than the document I've showed you? 23 A. Not -- not generally, no, sir. 24 Q. Okay. So do you believe that this -- do you believe 25 this is the -- the e-mail that he provided you? Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 11 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 74 1 A. It very well could be, sir. 2 Q. Now, at the top, I will acknowledge that it has -- it 3 says Aubrey Hawkins, it has his address, and cell and 4 e-mail, but it does not look as an e-mail would look, 5 if you printed that off -- if you printed off the 6 e-mail. Do you think it's possible that you received 7 a letter from him, that didn't come to you by e-mail? 8 A. Did I receive? 9 Q. Do you think it's possible that you received, from 10 him, a letter that didn't come from e-mail? 11 A. I'm sure the only thing I got from him was an e-mail. 12 Q. Okay. That's all I was asking. 13 A. Okay. 14 Q. If you turn to page 2 of the document, after 15 Mr. Hawkins' e-mail to you, which is about a little 16 over a page long, a page and five or so lines, after 17 his signature, it says that there are two enclosures 18 to this letter, and then some helpful links. Do you 19 see where I'm referring? 20 A. Yes, sir. 21 Q. And there is a link to the U.S. Equal Employment 22 Opportunity Commission, EEOC dot gov. There's a link 23 to the Institute of Food Science and Technology, 24 www.ifst.org. And then a link to the Center for 25 Disease Control and Prevention. Did you -- do you Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 12 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 75 1 recall reviewing -- strike that. 2 Did you review any of the information that 3 he sent to you, at that point? 4 A. I remember looking at the information that he sent in 5 the e-mail. 6 Q. Okay. Do you believe that, you know, based -- just 7 from what you recall, that the enclosures he sent to 8 you, were the e-mail addresses or were there 9 attachments to the e-mail? Do you not know? 10 A. I don't recall, sir. I do not. 11 Q. At some point, though, you did review the information 12 that he sent you? 13 A. Either the attachments or the websites themselves. 14 Q. Okay. Did your impression change, at all, with 15 respect to hiring him, with his HIV positive 16 condition? 17 A. I was overseas at the time, working, and did not -- 18 was not able to fully go into it, as I would have. 19 Q. Okay. You were overseas at the time you received his 20 e-mail? 21 A. Yes, sir. 22 Q. Okay. Where were you overseas? 23 A. Kenya. 24 Q. Why were you in Kenya? 25 A. I was sent there as part of my job. Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 13 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 76 1 Q. How long were you over in Kenya? 2 A. That particular contract was one month, if I recall. 3 Four weeks. 4 Q. Okay. So then do you -- did you return to the U.S. 5 sometime in May or early June of 2015? 6 A. It could have been June, yes, sir. 7 Q. Did you -- once you returned to the States, did you 8 have any further conversations or communications with 9 Mr. Hawkins? 10 A. Not in regard to this matter, no, sir. 11 Q. And when you say "not in regard to this matter," do 12 you mean his letter to you? 13 A. You mean the e-mail? 14 Q. Yes. 15 A. Okay. No, we -- I don't recall that we discussed it 16 further. 17 Q. Okay. I'll ask it, just so it's clear. Did you ever 18 have any further communication with Mr. Hawkins about 19 the letter or e-mail that he sent to you? 20 A. I don't believe so, sir. 21 Q. Okay. After you returned to the States, was it still 22 your position that Mr. Hawkins just wasn't suitable to 23 work as a server, because he was HIV positive? 24 A. That was my belief, yes, sir. 25 Q. You said that you had reviewed the -- is it the North Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 14 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 77 1 Carolina -- 2 A. Food Code. 3 Q. -- Food Code? 4 A. Yeah, Food Health and Safety. It's all -- 5 Q. Okay. I just didn't want to call it the wrong thing. 6 What specific risk do you perceive that 7 Mr. Hawkins would have posed, as a server in the 8 restaurant? 9 A. Contagious diseases. Blood-borne illnesses. 10 Q. Do you believe that Mr. Hawkins could have infected a 11 customer -- strike that question. 12 Do you believe that Mr. Hawkins could have 13 infected a customer with HIV? 14 A. Do I believe it is possible? 15 Q. Yes. 16 A. There were several instances of various employees 17 receiving injuries that would cause them to bleed, 18 myself included. 19 Q. Okay. 20 A. And anyone could possibly be exposed to it at that 21 point. 22 Q. Okay. Do you believe that he posed a threat to 23 customers, or other employees, or both, as result of 24 his being HIV positive? 25 A. He could have possibly exposed himself to both Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 15 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 78 1 audiences. 2 Q. In what ways do you believe that Mr. Hawkins could 3 have spread HIV to customers of the restaurant? 4 A. In working at the restaurant, any member of the staff 5 could receive various injuries or cuts with, or 6 sometimes without, their knowledge, which would then, 7 if you're in the area with customers, you would then 8 be exposing that to them. 9 Q. Do you mean exposed them to the HIV, just by virtue of 10 having an injury and bleeding? 11 A. No. That you can sometimes be bleeding, not realize 12 it, and accidently expose a customer or other staff 13 member to it without your necessary knowledge. 14 Q. Okay. Expose them how? Just by the blood having 15 contact with another person? 16 A. The -- possibly with the contact or possibly coming 17 into contact with the food or beverage. 18 Q. Okay. 19 A. Which would be then ingested. 20 Q. Okay. And then I have the same question, how do you 21 believe that Mr. Hawkins could have spread the HIV to 22 employees, other employees? 23 A. In the same manner, sir. In cross contamination of 24 work spaces and work environments, utensils, eating 25 and drinking areas. Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 16 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 79 1 Q. Did you ask Mr. Hawkins to submit more information 2 about his HIV status or did he do that -- did he 3 volunteer to do that on his own? 4 A. He volunteered it. 5 Q. Okay. Let me show you an exhibit that I'll mark as 6 Exhibit 3. 7 (PLAINTIFF EXHIBIT NUMBER 3 WAS MARKED.) 8 Q. (Handing.) 9 A. (Perusing.) 10 Q. All right. Have you had enough time to review the 11 document? 12 A. Yes, sir. 13 Q. Do you recognize the document in front of you? 14 A. Yes, sir, it's a greater detail of some of the Food 15 Health and Safety Code. 16 Q. Okay. Now, can you tell me, is this a document that 17 you found to justify what you thought about 18 Mr. Hawkins working in the restaurant or how did this 19 document come about? 20 A. I do not, sir. 21 Q. Okay. Is this a document that you pulled off the 22 Internet or pulled from a source yourself? 23 A. I have no clue who pulled this. 24 Q. Okay. Well, that answers my question. 25 You believe this to be a portion of the Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 17 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 80 1 North Carolina Food Code? 2 A. It appears to be a portion of it, yes, sir. 3 Q. Okay. In the North Carolina Food Code, is there a 4 specific reference to communicable diseases or 5 contagious diseases, that you're aware of? 6 A. I would have to go back and reference the manual. 7 Q. And how are you aware -- were you aware of the North 8 Carolina Food Code because you ran a restaurant; 9 correct? 10 A. Yes, sir. 11 Q. So at the time that you made the decision about 12 Mr. Hawkins, were you aware of that specific portion 13 of the food code about contagious diseases or 14 communicable disease? 15 A. I'm aware that it existed. 16 Q. Okay. All right. In what ways, to your knowledge, 17 can HIV be transmitted? 18 A. Sexually. Through a shared needle. The blood or 19 saliva. 20 Q. Okay. Any other ways? 21 A. Through medical operations, but that would be 22 incapsulated in the blood and organs. 23 Q. Okay. To your knowledge, and I believe you said so 24 earlier, can HIV be transmitted by ingesting food, 25 handled and contaminated by an HIV positive person? Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 18 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 81 1 A. If the blood is involved, yes, sir. 2 Q. So that it's clear, did you have any further 3 conversations, directly, with Mr. Hawkins, after you 4 decided to not hire him? 5 A. Yes. But not conversations related to this matter. 6 Q. Okay. When did you have a conversation with him, 7 afterward? 8 A. Periodically. 9 Q. So there's more than one conversation? 10 A. Yes, but not in regards to his employment. 11 Q. Okay. In regards to what? 12 A. Just general conversation. 13 Q. About what? 14 A. Nothing in specific. Just general politeness and 15 pleasantries. 16 Q. Okay. Do you happen to see him out and about or how 17 do you come in contact? 18 A. He repeatedly kept coming back to my place of 19 business, as a patron. 20 Q. Okay. That's what I was getting at. 21 A. Yes, sir. 22 Q. I didn't know that. 23 So he came back to eat or to drink, but not, 24 you know -- it had nothing to do with him trying to be 25 hired or anything like that? Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 19 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 83 1 there any other basis for your belief that Mr. Hawkins 2 shouldn't have been employed by the restaurant, 3 because of his HIV status? 4 A. Can you repeat the question, please? 5 MR. EDWARDS: Can you read that back? I 6 thought I did a good job. 7 THE WITNESS: It was complex. 8 (REQUESTED TESTIMONY WAS READ BACK.) 9 A. No, sir. 10 BY MR. EDWARDS: 11 Q. Okay. I am going to now show you a series of 12 documents. Just give me one second to mark them all. 13 (PLAINTIFF EXHIBIT NUMBERS 4, 5, 6, AND 7 WERE MARKED.) 14 Q. (Handing.) 15 A. (Perusing.) 16 Q. Once you've had an opportunity to review them all, 17 just let me know. No rush. 18 (A RECESS WAS TAKEN FROM 12:00 TO 12:01.) 19 Q. Okay. Back on the record. 20 All right. I have handed you a series of 21 documents marked Exhibit 4 through Exhibit 7. Now 22 Exhibit 4, is this a document that you've seen before 23 today? 24 A. Quite possibly. 25 Q. Would you agree with me that the document represents a Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 20 of 25 Joel Damin (3/28/17) 704-543-7995 www.lowrancereporting.com Lowrance Reporting Service, Inc. Page 84 1 Notice of Charge of Discrimination, from the U.S. 2 EEOC? 3 A. Yes, sir. 4 Q. And it is addressed to Mr. Joel Damin; that is you? 5 A. Yes, sir. 6 Q. As the owner of the restaurant? 7 A. Then owner, yes, sir. 8 Q. Then owner, of the restaurant. 9 And would you agree that it is in regard to 10 a charge of discrimination, filed by Aubrey T. 11 Hawkins? 12 A. Yes, sir. 13 Q. Okay. And that you received this document from the 14 EEOC on July 2, 2015; do you see that? 15 A. That is the date of it; however, my day of receipt, I 16 do not know. 17 Q. Okay. Fair enough. 18 But you believe you did, at some point, 19 receive this document? 20 A. It is very possible, yes, sir. 21 Q. Then I'm going to ask you to look at Exhibit Number 5. 22 Have you seen this document before? 23 A. (Witness complies.) Again, it's possible, sir. I do 24 not recall all of the documents. 25 Q. Okay. Would you agree that this is Charge of Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 21 of 25 Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 22 of 25 Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 23 of 25 Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 24 of 25 Case 1:16-cv-00104-TDS-JEP Document 27-3 Filed 05/26/17 Page 25 of 25 Exhibit C Case 1:16-cv-00104-TDS-JEP Document 27-4 Filed 05/26/17 Page 1 of 7 Case 1:16-cv-00104-TDS-JEP Document 27-4 Filed 05/26/17 Page 2 of 7 Case 1:16-cv-00104-TDS-JEP Document 27-4 Filed 05/26/17 Page 3 of 7 Case 1:16-cv-00104-TDS-JEP Document 27-4 Filed 05/26/17 Page 4 of 7 Case 1:16-cv-00104-TDS-JEP Document 27-4 Filed 05/26/17 Page 5 of 7 Case 1:16-cv-00104-TDS-JEP Document 27-4 Filed 05/26/17 Page 6 of 7 Case 1:16-cv-00104-TDS-JEP Document 27-4 Filed 05/26/17 Page 7 of 7 LEXSEE LARRY ERNEST WRIGHT et al., PLAINTIFFS v. JON HAYDEN et al., DEFENDANTS CIVIL ACTION NO. 5:08CV-179-R UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF KENTUCKY 2009 U.S. Dist. LEXIS 26399 March 31, 2009, Decided March 31, 2009, Filed COUNSEL: [*1] Larry Ernest Wright, Plaintiff, Pro se, Rock Spring, GA. Richard Allen Gribble, Plaintiff, Pro se, Paducah, KY. Charles Joseph Sharp, Plaintiff, Pro se, Paducah, KY. Joshua Bruce Reynolds, Plaintiff, Pro se, Benton, KY. JUDGES: Thomas B. Russell, U.S. District Court Chief Judge. OPINION BY: Thomas B. Russell OPINION MEMORANDUM OPINION Four pro se plaintiffs: 1) Larry Ernest Wright; 2) Richard Allen Gribble; 3) Charles Joseph Sharp; and 4) Joshua Bruce Reynolds initiated this civil action under 42 U.S.C. § 1983. All four of the plaintiffs were incarcerated at the time that they initiated this action. The complaint is before the Court for initial screening under 28 U.S.C. § 1915A and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons explained below, the Court will dismiss the complaint for failure to state a claim upon which relief can be granted. I. SUMMARY OF CLAIMS Plaintiffs were previously incarcerated together in the Eighth Pod at the McCracken County Jail. Thirteen other inmates were also incarcerated in the Eighth Pod. On or about August 21, 2008, Inmate G.E. was placed in the Eighth Pod. After approximately four days, Inmate G.E. informed the other inmates of the Eighth Pod that he was infected [*2] with the HIV virus and had been for the past ten years. Inmate G.E. told Plaintiffs that he had informed jail and medical staff about his HIV infection before he was placed in the Eighth Pod. Plaintiffs allege that during the first four days that Inmate G.E. was in the Eighth Pod they shared food and drink with him unwittingly exposing themselves to the HIV virus. After Inmate G.E. informed Plaintiffs about his HIV infection, Plaintiffs and seven other inmates filed grievances with the jail. As a result, all of the residents of the Eighth Pod were brought before Officer Craig Garrison, Dr. Smock, and a nurse for an educational meeting. At this meeting, Plaintiffs were told that they could not contract HIV from eating and drinking after Inmate G.E. They were also told that they could even "safely kiss Inmate G.E. on the mouth." Plaintiffs claim, however, that under "institutional and CDC guidelines" Inmate G.E. should have been housed separately. Plaintiffs allege that after twelve days of being housed in the Eighth Pod with them, Inmate G.E. was removed on September 2, 2008, and placed in an isolation cell. Plaintiffs have sued Sheriff Jon Hayden, Chief Jailer Bill Adams, the McCracken [*3] County Jail, and Southern Health Partners. Each Defendant is sued in both his individual and official capacities. Plaintiffs allege that Defendants violated their constitutional right to be free from cruel and unusual punishment by placing Inmate G.E. in their pod thereby exposing them to a risk of contracting a serious illness. They are seeking one Page 1 Exhibit D Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 1 of 22 million dollars each in compensatory damages and periodic HIV testing for the next five years. II. STANDARD OF REVIEW When a prisoner initiates a civil action seeking redress from a governmental entity, officer or employee, the trial court must review the complaint and dismiss the action, if the court determines that it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2); McGore, 114 F.3d at 604. A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 104 L. Ed. 2d 338 (1989). The trial court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Id. at 327. [*4] In order to survive dismissal for failure to state a claim, "[f]actual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (internal citations omitted). "[A] plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. In reviewing a complaint under this standard, the Court must construe the pleading in the light most favorable to Plaintiff. Bibbo v. Dean Witter Reynolds, Inc., 151 F.3d 559, 561 (6th Cir. 1998). Although this Court recognizes that pro se pleadings are to be held to a less stringent standard than formal pleadings drafted by lawyers, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), "[o]ur duty to be 'less stringent' with pro se complaints does not require us to conjure up unpled allegations." McDonald v. Hall, 610 F.2d 16, 19 (1st Cir. 1979) (citation omitted). And this Court is not required to create [*5] a claim for the plaintiff. Clark v. Nat'l Travelers Life Ins. Co., 518 F.2d 1167, 1169 (6th Cir. 1975). To command otherwise would require the Court "to explore exhaustively all potential claims of a pro se plaintiff, [and] would also transform the district court from its legitimate advisory role to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). III. ANALYSIS Section 1983 authorizes an injured person to assert a claim for relief against a person who, acting under color of state law, violated the claimant's federally protected rights. The United States Supreme Court has identified two elements in a prima facie § 1983 claim: (1) a deprivation of a federal right; and (2) that the person who deprived the plaintiff of that right acted under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). Prison conditions will not violate the Constitution unless they involve "the wanton and unnecessary infliction of pain." Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 69 L. Ed. 2d 59 (1981). Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with [*6] food, clothing, shelter, sanitation, medical care, and personal safety. Id. at 347-48. Where a prisoner alleges he suffered injuries that stem from conditions of confinement, prison officials may be held liable only if they act with deliberate indifference to a substantial risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 835, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994). "An Eighth Amendment claim may be premised on deliberate indifference to exposing an inmate to an unreasonable risk of serious harm in the future." Dodson v. Wilkinson, No. 06-4136, 304 Fed. Appx. 434, 2008 U.S. App. LEXIS 26369 at *10 (6th Cir. Dec. 24, 2008) (citing Helling v. McKinney, 509 U.S. 25, 36, 113 S. Ct. 2475, 125 L. Ed. 2d 22 (1993)). "A claim of deliberate indifference to future serious harm requires proof of both the objective and subjective elements of an Eighth Amendment claim." Id. Courts interpreting Helling have held that inmates can state an Eighth Amendment claim for confinement in a cell with an inmate who has a serious contagious disease that is spread by airborne particles, such as tuberculosis. See Bolton v. Goord, 992 F. Supp. 604, 628 (S.D.N.Y. 1998) (acknowledging that prisoner could state Eighth Amendment claim for confinement in same cell as inmate with serious contagious [*7] disease, but rejecting claim in this case because prisoner had not shown that inmates with active infectious tuberculosis were double-celled). Courts have consistently held, however, that mere confinement in the same cell as an HIV-positive inmate by itself does not violate the Constitution because HIV is 2009 U.S. Dist. LEXIS 26399, *3 Page 2 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 2 of 22 not spread by social contact. 1 See Glick v. Henderson, 855 F.2d 536, 539 (8th Cir. 1998) (holding that prison's failure to segregate inmates with HIV/AIDS did not violate the Eighth Amendment); Whitmore v. Trushenski, No. 3:08-cv-00276-LRH-VPC, 2009 U.S. Dist LEXIS 3665 (D. Nev. Jan. 9, 2009) (holding that plaintiff who was placed in a cell with an HIV-positive inmate was not exposed to a serious risk of harm); McGowan v. Cantrell, No. 1:05-cv-334, 2007 U.S. Dist. LEXIS 64534 (E.D. Tenn. Aug. 30, 2007) (same); Crocamo v. Hudson County Corr. Ctr., No. 06-1441 (PGS), 2007 U.S. Dist. LEXIS 28857 (D.N.J. Apr. 18, 2007) (finding that housing an inmate in the same pod with an HIV/AIDS-infected inmate absent other circumstances is not a form of punishment and does not give rise to a violation under the Eighth Amendment). 1 The court takes judicial notice of the Centers for Disease Control [*8] and Prevention's guidelines for the transmission of HIV that state: HIV is spread by sexual contact with an infected person, by sharing needles and/or syringes (primarily for drug injection) with someone who is infected, or, less commonly (and now very rarely in countries where blood is screened for HIV antibodies), through transfusions of infected blood or blood clotting factors. Babies born to HIV-infected women may become infected before or during birth or through breast-feeding after birth. http://www.cdc.gov/Hiv/resources/factshe ets/transmission.htm. See Seddens v. McGinnis, No. 91-1500, 1992 U.S. App. LEXIS 17945 (7th Cir. July 24, 1992) (taking judicial notice of "recent federal publications stating that AIDS cannot be transmitted through non-sexual social contact"). Plaintiffs have failed to allege that they were harmed in any way or that they were subjected to a substantial risk of serious harm. That Plaintiffs believe that they were at risk of contracting HIV from Inmate G.E. merely by sharing a pod with him does not mean that Plaintiffs were subjected to a substantial risk of harm. Plaintiffs do not allege that Inmate G.E. had open wounds, attempted to have sexual contact with [*9] them, or took any actions to purposefully expose Plaintiffs to the HIV virus. Furthermore, Inmate G.E. was moved to a different cell after Plaintiffs and others filed grievances with the jail. Plaintiffs' allegations fail to state a viable claim for violation of their constitutional rights, and their claims will be dismissed. The Court will enter an Order consistent with this Memorandum Opinion. Date: March 31, 2009 /s/ Thomas B. Russell Thomas B. Russell Chief Judge, U.S. District Court 2009 U.S. Dist. LEXIS 26399, *7 Page 3 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 3 of 22 LEXSEE DIERRO MUNIZ, Plaintiff, vs. AMEC CONSTRUCTION MANAGEMENT, et al., Defendants. Case No. CV-07-8066 CAS (AJWx) UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 2009 U.S. Dist. LEXIS 26970 March 30, 2009, Decided March 30, 2009, Filed SUBSEQUENT HISTORY: Motion denied by, Motion for new trial denied by Muniz v. Amec Constr. Mgmt., 2009 U.S. Dist. LEXIS 41947 (C.D. Cal., May 5, 2009) Affirmed by Muniz v. Amec Constr. Mgmt., 2010 U.S. App. LEXIS 22112 (9th Cir. Cal., Oct. 27, 2010) COUNSEL: [*1] For Dierro Muniz, Plaintiff: Charles J Fleishman, LEAD ATTORNEY, Charles J Fleishman Law Offices, Northridge, CA. For Amec Construction Management, Inc., a corporation, Defendant: Adrienne C Publicover, LEAD ATTORNEY, Wilson Elser Moskowitz Edelman & Dicker LLP, San Francisco, CA; Russell H Birner, LEAD ATTORNEY, Wilson Elser Moskowitz Edelman & Dicker LLP, Los Angeles, CA. For Attorney Settlement Officer, Attorney Settlement Officer: William V McTaggart, Jr, LEAD ATTORNEY, Parker Milliken Clark O'Hara & Samuelian, Culver City, CA. JUDGES: CHRISTINA A. SNYDER, United States District Judge. OPINION BY: CHRISTINA A. SNYDER OPINION FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter was tried to the Court on December 16, 2008. On January 5, 2009, the Court ordered the plaintiff to submit to a functional capacity evaluation ("FCE") in order to provide the Court with a more complete record upon which to evaluate his capacity to work. The report of that FCE was lodged with the Court on March 26, 2009 (the "2009 FCE"). Having now carefully considered the full record and the arguments of the parties, the Court finds and concludes as follows: I. FACTUAL BACKGROUND Plaintiff Dierro Muniz was employed by defendant AMEC Construction [*2] Management until August 1, 1991, when he stopped work due to the effects of his infection with the human immunodeficiency virus (HIV). Pl.'s Trial Br. at 1; Def.'s Trial Br. at 2. As an AMEC employee, he was covered by a long-term disability insurance policy ("the Policy") issued by the Connecticut General Life Insurance Company ("CGLIC"). Under the Policy, a claimant will only receive benefits after 24 months if he is "totally disabled," defined as "unable to perform all the essential duties of any occupation for which [he is] or may reasonably become qualified...." Administrative Record ("AR") 120. Muniz received benefits under the Policy from February 1992 through September 8, 2006, when the benefits were terminated based on a lack of medical documentation to support a determination of total disability. AR 289-292. A. The 2005 Benefits Review The termination of benefits was the culmination of an eighteen-month process which began in 2005 as part of CGLIC's regular review process. CGLIC sent plaintiff Page 1 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 4 of 22 two forms to complete, which plaintiff completed and returned on April 19, 2005. AR 96, 536-39. On these forms, Muniz indicated he had "debilitating fatigue" and "intermitant [sic] malaise." [*3] AR 537. Muniz also stated his asthma limited his ambulation, and that he had difficulties with concentration and his attention span. Id. He noted that, in his daily life, he engaged in a variety of light household activities, as well as exercise at a gym two to three days per week doing "light cardio," stretching, and light weight resistance training. AR 538. Upon receiving and reviewing these forms, CGLIC then requested that Muniz's treating physician, Dr. William Towner of Kaiser Permanente, complete and return a Physical Activities Assessment ("PAA"). AR 532. The PAA instructs a physician to check boxes corresponding to the duration which "[t]hroughout an 8-hour workday, the patient can tolerate, with positional changes and meal breaks, the following activites." AR 524. Each of a variety of physical functions is then listed alongside five columns, marked: "Not applicable to diagnosis(es)," "Continuously (67-100%) (5.5 + hrs)," "Frequently (34-66%) (2.5-5.5 hrs)," "Occasionally (1-33%) (<2.5 hrs)," and "Check if supported by objective findings." Id. There is no column to check for a function that a patient cannot perform at all (less than occasionally or 1%). Id. Dr. Towner completed [*4] the form and returned it to CGLIC. AR 524. He had marked all of the items "not applicable" except sitting, standing, walking, and ability to work extended shifts overtime. Id. For these functions, Dr. Towner had marked "Occasionally." Id. He did not check the "supported by objective findings" box for any of the functions. Id. CGLIC also obtained Muniz's medical records, and used the data from those records and the PAA to perform a vocational assessment, determining that Muniz could perform "sedentary employment," which qualified him for a variety of clerical positions. AR 080, 410. CGLIC's Nurse Case Manager also reviewed the medical records, and determined that the records did not "support the severity of symptoms stated by" Muniz, and characterized Dr. Towner's PAA as stating that Muniz had the "ability to [] sit, stand, and walk occasionally." AR 077-078. CGLIC shared the results of the assessment and review with Dr. Towner on December 12, 2005, and requested that he respond and indicate if he agreed with the analysis and, if not, to provide "medical documentation to support [his] position" as to Muniz's ability to "perform any occupation at a sedentary physical work category in an [*5] 8 hour day." AR 402. Dr. Towner responded via letter on January 2, 2006, indicating that he "completely disagree[d]" with CGLIC's findings, noting the "multitude of medications" Muniz was taking, which "often leave him extremely fatigued and unable to concentrate throughout the day." AR 384. Dr. Towner also noted Muniz's persistent contraction of methicillin resistant staph aureus (MRSA) infections. Id. He noted his "profesional medical opinion that Mr. Muniz will be unable to work in any field, sedentary or otherwise, in the foreseeable future." Id. CGLIC requested more records, including testing of Muniz's cognitive status. AR 386. Records from Dr. Towner were received after repeated requests on February 13, 2006. AR 361-376. However, the records did not include any documentation of cognitive deficits. Id. As such, CGLIC determined Muniz would need to undergo a Functional Capacity Evaluation ("FCE"). B. CGLIC Attempts to Obtain an FCE CGLIC and its outside vendor unsuccessfully attempted to contact Muniz via certified and uncertified postal mail and telephone (though ultimately, the voice mailbox was full) to schedule the FCE several times in March, April, May, and June 2006. AR 065-067, [*6] 069, 071, 342-353. On June 22, 2006, CGLIC sent Muniz a letter informing him it was suspending his benefits due to his failure to comply with the FCE request, and that his case would be closed effective July 21, 2006, should he not respond by that date. AR 339. On July 5, 2006, Muniz called CGLIC to inquire about his benefits, and said he had never received any of the phone messages or letters prior to the June 22, 2006 letter. He explained he had only been at his California address intermittently, as he had been caring for his ill parents in Texas. AR 338. After discussing the need for the FCE with a claim manager, Adrienne Brumfield, Muniz asked if he could complete the FCE at a facility near his parents' home in Texas. Id. Brumfield indicated she would look into such an arrangement and let Muniz know. Id. On July 24, 2006, Muniz followed up on the July 5 conversation with a letter to CGLIC, again explaining he had failed to receive the earlier letters and/or phone calls, 2009 U.S. Dist. LEXIS 26970, *2 Page 2 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 5 of 22 and that he had yet to receive any information about completing the FCE in Texas. AR 320. Unbeknownst to Muniz, CGLIC had already contacted Dr. Towner about the FCE in Texas. Since the facility in Texas required a [*7] patient be medically released before undergoing a FCE, CGLIC requested such a release from Dr. Towner on July 17, 2006. AR 324-26, 336. The following day, Dr. Towner responded that, due to his wasting 1 and fatigue, Muniz was medically "unable to participate in any functional evaluation." AR 324-26. On July 19, 2006, Brumfield then mailed Muniz a letter, explaining that the Texas facility would not be able to perform the FCE since it had been "unable to obtain the necessary requirement from [his] provider." AR 321. Muniz did not make any other attempts to obtain clearance for the FCE. 1 Defendant points out that Muniz's medical records do not support any conclusion of wasting, since Muniz weight was relatively stable - and increasing - at the time of this comment, and wasting has not been noted anywhere in his medical record. Def.'s Trial Br. at 11. Without the FCE, CGLIC went forward with another evaluation of Muniz's case based on the existing file and eight pages of additional records from Dr. Towner, sent on August 2, 2006. The reviewing Nurse Case Manager again found that Muniz's record was "insufficient to provide a severity of symptoms that impact function." AR 124. As such, CGLIC [*8] determined it would close Muniz's claim, and on August 16, 2006, sent him a letter to this effect. The letter informed Muniz that: Your medical documentation does not contain any current findings or document the severity of your current condition that would prevent you from performing the essential duties of any occupation. The available medical records and your medical history does not demonstrate that you are not capable of sustaining the endurance to perform in the sedentary duty category for an 8 hour day, in accord with the U.S. Department of Labor Standards [for] the duties of any occupation. AR 283. C. Muniz's Appeals On January 26, 2007, Muniz filed an administrative appeal, and was invited to present additional medical evidence to support his contentions. AR 260-61. In affirming its decision on March 7, 2007, CGLIC again noted that the record failed to include any testing to support Muniz's claims of cognitive impairment, or other documentation to support "the severity of a physical or mental health conditions [sic] that would cause functional deficits severe enough to prevent [him] from functioning at a sedentary capacity for the period in question." AR 261-62. Muniz replied to [*9] the denial with a letter alleging procedural errors on the part of CGLIC, and including records from a February 2007 appointment with Dr. Towner, which he had also submitted before the denial of the first appeal. AR 254. At that appointment, Dr. Towner had noted Muniz was responsive to treatment for cellulitis, a skin infection, and noted a normal neurological examination, and that Muniz appeared alert and oriented. AR 254-256. CGLIC again upheld its decision to terminate the claim, finding that the records failed to provide evidence of functional impairment precluding Muniz from working as of September 8, 2006. AR 249. Having exhausted his administrative appeals, Muniz then filed this action on December 11, 2007, pursuant to the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132(a)(1)(B). D. The Court-Ordered Evaluation Having concluded that the administrative record provided insufficient evidence for the Court to determine whether Muniz was "totally disabled" at the time his benefits were terminated, the Court ordered Muniz to submit to a current FCE, relying upon Fed. R. of Evid. 706(a) and Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065 (9th Cir. 1999). [*10] The parties mutually agreed upon a facility to conduct the evaluation. On March 25, 2009, Muniz attended Source One Rehabilitation in Fort Worth, Texas, where he was tested and evaluated by Robert Larson, a licensed physical therapist. Larson's report was lodged with the Court on March 26, 2009 (the "2009 FCE"). Larson concluded that, on the day of the evaluation, "Muniz demonstrated the capacity to perform at a sustained light to light-medium demand level." 2009 FCE at 1. Muniz was able to perform "at competitive levels when compared to individuals within the same population 2009 U.S. Dist. LEXIS 26970, *6 Page 3 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 6 of 22 demographic" in several tasks. Id. at 1. During the FCE, Muniz was able to sit for 45 minutes with his hip/knee at a 90 degree angle, and to stand for a period of 30 minutes without sitting. Id. at 4. The norm for both of these activities is 30 minutes. Id. In stair climbing, overhead reaching and trunk bending tasks, despite his fatigue, Muniz performed at or above the norm. Id. In lifting tasks, Muniz was able to repetitively lift weights of thirty to forty pounds. Id. Muniz performed below the norm at several other tasks, including walking, 2 sustained squatting, and kneeling. Id. at 1, 4. Such tasks are all [*11] either "occasional" or "very occasional" for sedentary work according to the Department of Labor Physical Demand Characteristics. Id. at 4. Throughout the evaluation, Muniz reported pain in his hip and knees, and Larson noted tightness in Muniz's lumbar region. Id. at 5. 2 It was Larson's expert opinion that Muniz terminated the walking evaluation prematurely. 2009 FCE at 4. Based on Muniz's performance, Larson characterized Muniz's activity tolerance and endurance as "fair to poor"; his body mechanics, pain/behavior correlation, and upper/lower extremity strength as "fair to good"; and his coordination and pace object control as "good." Id. at 5. II. LEGAL STANDARD Muniz argues that CGLIC's determination that he was not "totally disabled" was factually and legally incorrect. 3 The parties agree that the Court is to review this determination under a de novo standard, since the Policy does not confer any discretion upon CGLIC. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 962 (9th Cir. 2006) (en banc), citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S. Ct. 948, 103 L. Ed. 2d 80 (1989). In considering whether Muniz was indeed totally disabled, the Court is to analyze the record anew and "evaluate [*12] the persuasiveness of conflicting testimony and decide which is more likely true." Kearney v. Standard Ins. Co., 175 F.3d 1084, 1095 (9th Cir. 1999) (en banc). 3 Muniz also appears to challenge the procedures used by CGLIC, in that the decision to deny benefits was not based upon a "full and fair review," as required by statute. 29 U.S.C. § 1133. For example, Muniz, both in his briefs and at trial, argues that CGLIC relied only upon a misinterpretation of the PAA in determining that he was not totally disabled, and thus fit for sedentary employment. A review of the administrative record shows this is not the case. Regardless, since the Court is providing an independent de novo review of the evidence, the sufficiency of CGLIC's review of the evidence is not at issue. III. DISCUSSION The Court is presented with one question: whether Muniz was "totally disabled" as defined by the policy as of September 9, 2006. A. Burden of Proof The parties dispute which party bears the burden of proof in this case. Generally, a plaintiff suing for benefits under ERISA, 29 U.S.C. § 1132(a)(1)(B), must establish his entitlement to benefits. See Farley v. Benefit Trust Life Ins. Co., 979 F.2d 653, 658 (8th Cir. 1992); [*13] see also Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038 (11th Cir. 1998) (citing Farley). Muniz attempts to argue that, as here, where an insurer seeks to terminate disability benefits as opposed to refusing to award them in the first place, the burden of proof shifts to the defendant. This is unsupported by case law, as numerous courts, including several within this circuit, have consistently held that the burden of proof remains with the plaintiff in just such a case. See, e.g., Clifford v. Prudential Ins. Co. of Am., No. 07-CV-126-ST, 2008 U.S. Dist. LEXIS 67118, 2008 WL 4164750, at *9 (D. Or. Aug. 27, 2008); Gardner v. Bear Creek Corp., No. C 06-02822 MHP, 2007 U.S. Dist. LEXIS 58615, 2007 WL 2318969 (N.D. Cal. Aug. 6, 2007); Fulayter v. Prudential Ins. Co. of Amer., No. CV06-1435-PCT-NVW, 2007 U.S. Dist. LEXIS 8394, 2007 WL 433580, at *8 (D. Ariz. Feb. 6, 2007); Gatti v. Reliance Standard Life Ins. Co., No. CV01175-TUC-FRZ, 2006 U.S. Dist. LEXIS 11844, 2006 WL 664422, at *6 (D. Ariz. Mar. 13, 2006). In attempting to argue otherwise, Muniz claims "there is an exception to the rule that the burden of proof is on an ERISA claimant." Pl.'s Reply Br. at 2. However, he cites no cases which support this conclusion, and instead points to three inapposite cases from other circuits. 4 In McOsker v. Paul Revere, 279 F.3d 586, 589 (8th Cir. 2002), [*14] reviewing de novo a decision to discontinue benefits, the court gave weight to the fact that 2009 U.S. Dist. LEXIS 26970, *10 Page 4 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 7 of 22 a treating physician's opinion did not "vary significantly" from that which he had given before and "on the basis of which [the insurer] had been paying benefits for some time." Similarly, in Gunderson v. W.R. Grace & Co., 874 F.2d 496 (8th Cir. 1989), the court focused on the similarity between the medical evidence presented at the time the plaintiff was initially deemed disabled and when he was deemed no longer disabled. These courts did not shift the burden because the insurer had previously made a determination of disability; rather, they noted that the data the plan had relied on in initially determining that the plaintiff was disabled had remained constant. In the other case cited, Connors v. Connecticut General Life Insurance Co., 272 F.3d 127, 136 (2d Cir. 2001), the Court of Appeals merely noted that the court had made an error in treating the case as an initial denial of an application for benefits instead of as a termination of benefits, and this distinction "may have" influenced the weight afforded to certain evidence. This does not suggest a burden-shifting exception. 4 At trial, [*15] Muniz's counsel also cited Saffon v. Wells Fargo & Co. Long Term Disability Plan, 522 F.3d 863 (9th Cir. 2008). Saffon, though, largely concerned an interpretation of Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955 (9th Cir. 2006), which Muniz's counsel agreed is irrelevant to the instant case. Nowhere in the court's opinion in Saffon is the burden of proof addressed. Rather, evaluating a termination of benefits under an abuse of discretion standard, the court focused on the vague and confusing nature of the Plan's communications with the claimant. For this same reason, Solien v. Raytheon Long Term Disability Plan, No. CV 07-456 TUC DCB, 2008 U.S. Dist. LEXIS 109593, 2008 WL 524391 (D. Ariz. Dec. 17, 2008), which Muniz's counsel brought to the Court's attention via a "Notice of New Authority" filed on December 29, 2008, is inapposite. There, the Court examined a decision to terminate benefits based on a lack of evidence, including mental status testing, under an abuse of discretion standard. The question in abuse of discretion cases is whether a plan had a sufficient justification for concluding a plaintiff was not disabled. Here, the question is whether the plaintiff was disabled. The reasoning of the Solien [*16] does not apply to the latter determination. In the parties' Joint Request for Clarification, Muniz added two more cases that he claims support his argument, Ermovick v. Mitchell Silberberg, 282 Fed. Appx 623, 623 n.l (9th Cir. 2008) and Snow v. Standard, 87 F.3d 327 (9th Cir. 1996). Neither support Muniz's argument, as the court in Ermovick criticized a district court for being improperly deferential to a plan's factual findings and Snow concerns the application of the abuse of discretion standard. As the Court has repeatedly stated, it is reviewing the factual record here de novo. B. Analysis of the Record The parties do not dispute Muniz's diagnosis of "advanced AIDS." 5 His medical records from 2004 through 2007 show a viral load ranging from 136 to 781. AR 303, 315, 369, 395. Muniz's reported CD4 Cell counts, ranging from 248 to 361 cells per microliter (AR 268, 303, 369), tend to correlate with a variety of infectious and noninfectious complications, including fatigue. AIDS Education & Training Centers National Resource Center, CD4 Monitoring and Viral Load Testing, Clinical Manual for Management of the HIV-Infected Adult (July 2007), available at http://www.aids-etc.org/aidsetc?page=cm- 107_cd4_monitor. [*17] But while both fatigue and acute alteration in a patient's level of alertness are common in patients with Muniz's diagnosis, they can range in both severity and etiology. See Lisa Capaldini, Symptom Management Guidelines, HIV InSite Knowledge Base (July 2004), available at http://hivinsite.ucsf.edu/InSite?page=kb -03-01-06. A mere report of these symptoms therefore does not inform the Court whether these symptoms are so disabling as to make him "unable to perform all the essential duties of any occupation for which [he is] or may reasonably become qualified," as the Policy requires. AR 120. 5 The Centers for Disease Control case definitions for HIV infection include four stages: Stage 1, Stage 2, Stage 3 (AIDS), and Stage unknown. An individual with HIV infection enters Stage 3 when they present with one of 21 "AIDS-defining conditions" or their CD4 cell count drops below 200 cells per microliter or below 14 percent. Eileen Schneider, et al., Revised Surveillance Case Definitions for HIV 2009 U.S. Dist. LEXIS 26970, *14 Page 5 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 8 of 22 Infection Among Adults, Adolescents, and Children Aged <<18 Months and for HIV Infection and AIDS Among Children Aged 18 Months to <<13 Years -- United States, 2008, 57 Morbidity [*18] and Mortality Weekly Report RR10 (Dec. 5, 2008), available at http://www.cdc.gov/mmwr/preview/mmwrhtml /rr5710a1.htm. The Court takes judicial notice of this and other information about HIV/AIDS from highly-reputable sources. See Intri-Plex Technologies, Inc. v. Crest Group, Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) ("a court may take judicial notice of matters of public record ... as long as the facts noticed are not "subject to reasonable dispute"); see also Barnes v. Ind. Auto. Dealers Ass'n of Cal. Health & Welfare Benefit Plan, 64 F.3d 1389, 1394, n.2 (9th Cir. 1995), quoting Hines on behalf of Sevier v. Secretary of HHS, 940 F.2d 1518, 1527 (Fed. Cir. 1991) ("Well-known medical facts are the types of matters of which judicial notice may be taken."). The record here provides the opinion of two health care professionals who actually examined Muniz. Dr. Towner, the treating physician, explained that he is of the professional medical opinion that Muniz is unable to work, even in a sedentary occupation, due to primary symptoms of AIDS, as well as the debilitating side effects of his medications. 6 Neither CGLIC nor this Court are required to agree with Dr. Towner, [*19] though, or even "to accord special weight to the opinions of a claimant's physician." Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834, 123 S. Ct. 1965, 155 L. Ed. 2d 1034 (2003). The Court shares many of CGLIC's reservations about Dr. Towner's opinion. Not only did he fail to provide any measurable test results to confirm Muniz's functional deficits despite several requests to do so, but his records show some inconsistency. For example, the notes from Muniz's February 2007 visit make no mention of any cognitive difficulties whatsoever, nor do they indicate a concern about wasting or fatigue- conditions that Towner opined made Muniz unable to proceed with the FCE in the summer of 2006. Moreover, many of Towner's opinions were provided months after he had last seen Muniz. 6 The Social Security Administration has also determined that, under their regulations, since 1992, Muniz has been unable to work and continues to be permanently disabled. AR 699-701. Larson, on the other hand, produced a report the day after he met with Muniz, and concluded Muniz is not "totally disabled." Larson provided a detailed analysis of Muniz's capabilities, and included objective measurements and charts in support of his observations. [*20] His report shows that Muniz can perform sedentary work at light or light-medium demand levels. Both parties have argued against reliance on a 2009 FCE, though. Defendant argued that any evaluation of Muniz's current functional capacity has no probative value as to his functional capacity over two years ago. Def.'s Resp. to Pl.'s Post-Trial Mem. at 3. Although Muniz did not agree with this proposition at trial or at the time of post-trial briefing, he subsequently sought clarification of the Court's order appointing an expert witness on the basis that "Plaintiff believes that a functional capacity evaluation conducted in the present cannot determine his functional capacity as of September 8, 2006." Joint Request for Clarification (Dkt. No. 43) at 4. The Court agrees that the 2009 evaluation does not, in and of itself, establish what Muniz's ability was in 2006. As Larson noted, the FCE is based on "a snap shot performance of [Muniz's] capacity" on the date of the test. 2009 FCE at 1. However, the evaluation is still probative, and, for several reasons, Muniz's ability to function today makes it more likely that he was able to function in 2006. First, the 2009 evaluation was conducted [*21] by an independent evaluator, with no interest in the case, jointly selected by the parties. Second, Muniz has self-reported the same symptoms (fatigue, chronic back pain, and swelling and pain in his feet) and the same activity levels that he did in April 2005. Compare AR 538 with 2009 FCE at 1, 3. Finally, Muniz's underlying diagnosis has not changed. In an ideal situation, the Court would have a 2006 evaluation before it in order to make a disability determination. No such document exists, however, since Muniz and his physician failed to comply with CGLIC's repeated requests for an evaluation. As discussed above, the only primary evidence from 2006 are Dr. Towner's brief, unsupported, and otherwise problematic statements and Muniz's self-reports. Weighing this evidence, along 2009 U.S. Dist. LEXIS 26970, *17 Page 6 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 9 of 22 with the 2009 FCE and the evaluations of Towner and Muniz's submissions to CGLIC by CGLIC staff, the Court cannot conclude that Muniz was "totally disabled." While the Court has no doubt that Muniz does experience real, debilitating symptoms and side effects as a result of HIV/AIDS and his treatment, the record does not support a finding that these symptoms rise to the level of total disability, and leave Muniz [*22] "unable to perform all the essential duties of any occupation for which [he is] or may reasonably become qualified." III. CONCLUSION For the reasons discussed herein, the Court finds for defendant and against plaintiff. The Court finds it appropriate for CGLIC to bear the cost of the preparation of the 2009 FCE. Except as otherwise noted herein, each party is to bear its own attorneys' fees and costs. IT IS SO ORDERED. Dated: March 30, 2009 /s/ Christina A. Snyder CHRISTINA A. SNYDER United States District Judge 2009 U.S. Dist. LEXIS 26970, *21 Page 7 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 10 of 22 LEXSEE GREGORY A. BOLDRIDGE, Plaintiff, vs. TYSON FOODS, INC., Defendant. Case No. 05-4055-SAC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS 2007 U.S. Dist. LEXIS 19942 March 20, 2007, Decided March 20, 2007, Filed SUBSEQUENT HISTORY: Reconsideration denied by Boldridge v. Tyson Foods, Inc., 2007 U.S. Dist. LEXIS 32719 (D. Kan., May 2, 2007) Affirmed by Boldridge v. Tyson Foods, Inc., 2008 U.S. App. LEXIS 11606 (10th Cir., May 30, 2008) PRIOR HISTORY: Boldridge v. Tyson Foods, Inc., 2005 U.S. Dist. LEXIS 41609 (D. Kan., Oct. 17, 2005) COUNSEL: [*1] For Gregory A Boldridge, Plaintiff: David O. Alegria, LEAD ATTORNEY, McCullough, Wareheim & LaBunker, P.A., Topeka, KS. For Tyson Foods IBP Inc., Defendant: Michael A. Williams, Robert W. McKinley, LEAD ATTORNEYS, Lathrop & Gage, LC - KC, Kansas City, MO. JUDGES: Sam A. Crow, U.S. District Senior Judge. OPINION BY: Sam A. Crow OPINION MEMORANDUM AND ORDER This failure to hire case, based on diversity and federal question jurisdiction, comes before the court on defendant's motion for summary judgment. In the pretrial order, plaintiff states six theories of recovery: two under Kansas law and four under the Americans with Disabilities Act. Summary Judgment Standards The standards and procedures for summary judgment are well established and will not be fully repeated here. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In essence, summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Id. [*2] Exhibits/authentication Because both parties challenge the authentication and admissibility of certain exhibits, the court finds it necessary to review the basic principles relating to summary judgment exhibits. "For purposes of summary judgment, each document must be authenticated through a supporting affidavit or deposition excerpt from anyone with personal knowledge of the facts contained in the exhibit." Bunker v. City of Olathe, Kan., 97 F. Supp. 2d 1241, 1246 (D. Kan. 2000). See Fed. R. Civ. P. 56(c) and (e); D.Kan. Rule 56.1(d). "[T]he court may disregard facts supported only by references to documents unless the parties have stipulated to the admissibility of the documents or the documents have been authenticated by and attached to an affidavit meeting the requirements of Rule 56(e)." Powers v. Tweco Prods., Inc., 206 F. Supp. 2d 1097, 1103 (D. Kan. 2002) (citing Fed. R.Civ. P. 56(e). See, e.g., Getz v. Board of County Comm'rs, 194 F. Supp. 2d 1154, 1157 n. 1 (D. Kan. 2002); Patterson v. Dahlsten Truck Line, Inc., 130 F. Supp. 2d 1228, 1234 (D. Kan. 2000). [*3] Certain exhibits cannot reasonably be construed to be within the stipulation in the Pretrial Order, Dk. 33, p. 2-3, and are not authenticated by affidavit or adopted in depositions. Accordingly, the court has disregarded all Page 1 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 11 of 22 factual allegations supported by reference to plaintiff's exhibits 4 (transcript from Emporia Human Relations Commission pre-investigation conference) 1; 5 (April 17, 2006 letter from Dr. Baker to plaintiff's attorney) and 6(Case summary report) of Dk. 46. 1 An uncertified copy of testimony before an administrative agency is not admissible evidence in a summary judgment proceeding. Steven v. Roscoe Turner Aeronautical Corp., 324 F.2d 157, 161 (7th Cir. 1963). This transcript is unsworn, is not made under penalty of perjury, and lacks other authentication. The court specifically addresses the job descriptions relied upon by the parties. Plaintiff alleges that "[t]he real job description for the position that Mr. Boldridge applied for is dated November 3, 2003..." Dk. [*4] 46, p. 17. That job description contains a list of physical demands which state that "maximal forces are occasionally required to perform this task," but makes no reference to repetitive motion. Dk. 46, Exh. 1. Mr. Brownrigg, defendant's Human Resources Manager for the complex at which plaintiff applied for work, confirmed that this job description was a general description of the mechanic job for which plaintiff applied, and defendant does not object to it. Plaintiff objects to the job description submitted by defendant because it is dated November 16, 2004, over a year after plaintiff applied for the position at issue. Dk. 39, Exh. I. This job description states, in pertinent part: "A great majority of these jobs involve light to heavy lifting, with occasional to repetitive and forceful gripping, pinching, pulling and pushing." Id. p. 1. The record confirms that this job description was created at some unspecified date after plaintiff applied for the job, at Mr. Brownrigg's request, for purposes of this litigation. He testified that he asked the maintenance supervisors to put something in writing to show "specifically what the job entailed." Dk. 39, Exh. B, p. 131-32. The job description [*5] thus was not used by the defendant in making the decision not to hire the plaintiff and was not in effect at the relevant time. Nonetheless, the document reflects defendant's assessment in November of 2004 of tasks required in the position for which plaintiff applied and is admissible for that limited purpose only. 2 2 Defendant contends that this job description was reviewed by plaintiff during his deposition, but the record reveals it was used merely as a basis of reference for asking plaintiff which job duties he subjectively expected to perform in the maintenance position. Dk. 39, Exh. A, p. 81-84. That inquiry is separate and distinct from the determination of whether the employer actually required employees in the position to perform certain functions at the time plaintiff applied for work, or considered them to be essential. Plaintiff testified that he was never given any documents during his application process, and did not testify that he had ever seen this job description before his deposition. Id. [*6] The report dated December 8, 2003 by Dr. Chris Fevurly, MD similarly lacks authentication. This physician apparently conducted a "fitness for duty assessment" of plaintiff's application for employment on December 8, 2003, having reviewed, among other documents, an unidentified "job analyses" for the position. Defendant's brief seems to imply that Dr. Fevurly relied upon the job description included as part of that same exhibit (Dk. 39 Exh I), but that job description, addressed above and dated in November of 2004, postdates Fevurly's report by 11 months. The court additionally finds it curious that of the twelve documents which Dr. Fevurly's report indicates he reviewed, he specifically references each by its exact date except for the job description. Dr. Fevurly's report neither authenticates the 2004 job description, nor is itself properly authenticated. Uncontroverted Facts Plaintiff completed an application for an open maintenance mechanic position at Defendant on August 8, 2003. Prior to applying for work with defendant, plaintiff had worked for other employers, had sustained injuries, had undergone surgery on both arms, had received workers compensation, and had [*7] medical restrictions imposed. When he applied for work with defendant, plaintiff apparently believed that he had fully recovered from his previous injuries, that his medical restrictions had been lifted, and that he was capable of performing what he believed to be the tasks of the maintenance mechanic position for which he applied. Plaintiff understood that a maintenance mechanic would be required to perform certain tasks including working from floor to ceilings and overheads, working outside on rooftop equipment with occasional work on silos that are 40 feet in the air, working in a climate 2007 U.S. Dist. LEXIS 19942, *3 Page 2 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 12 of 22 varying from very cold to very hot, and working in areas that may be wet, dry, steamy and slippery. Plaintiff also understood that the maintenance mechanic rotated to different areas which may involve overhead work, climbing, crawling, stooping, nailing, bending and being in awkward positions to complete the tasks. Plaintiff understood that a great majority of the jobs a maintenance mechanic performed involved light and heavy lifting with occasional repetitive gripping, pinching, pulling and pushing, and that the job also entailed the use of wrenches, all kinds of screwdrivers, crowbars, hammers, [*8] sledge hammers, hand tools, etc. The application which plaintiff completed and signed contained the following statements which plaintiff read: Please read before signing this application. I understand that the application and any other company documents are not contracts for employment and that any individual who is hired may voluntarily leave upon proper notice and may be terminated by the company at any time for any reason. I understand any oral or written statements to be contrary are hereby expressly disavowed and should not be relied upon by any prospective or existing employee or contractor. I also understand that I will be subject to a probationary period. I understand that Tyson does not intend to enter into any contract of employment unless expressly stated in writing signed by the highest ranking Human Resources officer. I acknowledge that I have been advised that this application will remain active for not more than 30 days from the date it is made. This certifies that I agree with the above information and that all entries on this application and all related forms are true and complete to the best of my knowledge. Dk. 39, Exh. D. On or about August 13, 2003, plaintiff [*9] completed a maintenance exam and interviewed with the personnel department. After interviewing with the maintenance supervisor, plaintiff received a conditional job offer for the position of maintenance mechanic. Plaintiff understood the offer was conditioned solely upon his passing a physical examination. This conditional offer was made prior to any communication with the plant medical department. On August 25, 2003, plaintiff completed a medical questionnaire. The following day, he successfully completed a pre-employment drug test and met with Sandra Fleming, the plant nurse. Fleming asked plaintiff about the scars on his elbows and plaintiff indicated he had had surgery. Fleming indicated on the pre-placement physical examination summary report that plaintiff, "may not be placed until additional information is returned," Dk. 39, Exh. E, and told plaintiff he would have to see Jay O'Daniel 3 so he could be properly placed without violation of any restrictions. 3 The parties do not indicate what Mr. O'Daniel's title or duties are. [*10] O'Daniel asked plaintiff to bring in his medical records for placement purposes. Plaintiff provided some medical records to O'Daniel who two days later told plaintiff that he needed his workers' compensation ratings. O'Daniel asked plaintiff to complete a medical release so his physicians could send the medical records directly to him. Although plaintiff did so, plaintiff's doctors would not send the requested medical records to O'Daniel. Plaintiff then contacted Dr. Moore, Dr. Bruce and Dr. Prostic, who confirmed that they would not send plaintiff's medical records to O'Daniel. Plaintiff then contacted the workers' compensation archives and asked them to send his medical records to O'Daniel, but they declined to fax the records directly to O'Daniel. Plaintiff subsequently provided to O'Daniel a letter from the workers' compensation archives directed to O'Daniel and the attached records. O'Daniel indicated that he would review them and get plaintiff properly placed. On September 11, 2003, O'Daniel signed a form indicating claimant had completed the pre-placement physical examination and could be placed as follows: 11/25/98 Dr. Bruce Smith, No repetitive gripping bilaterally, [*11] No pounding bilaterally; 4/13/99 Dr. Edward J. Prostic, No repeticious 4 (sic) use right arm, 2007 U.S. Dist. LEXIS 19942, *7 Page 3 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 13 of 22 especially hand above shoulder, No heaving lifting/carrying. Dk. 39, Exh. G. O'Daniel told plaintiff that defendant had to look at and comply with the medical restrictions unless a physician changed them. 4 Footnote here in original to "forceful." Plaintiff admits that physicians Smith and Prostic assigned him the stated restrictions, but claims he had been released to full duty by the time he applied for employment with defendant. No allegation is made that plaintiff asked either physician to review and update their medical restrictions, or informed defendant that these restrictions had been lifted, or provided defendant with a release to full duty from any physician, prior to this lawsuit. O'Daniel provided the pre-placement form to Rodger Brownrigg, defendant's Human Resources Manager for the complex at which plaintiff applied for work. On September 12, 2003, Brownrigg drafted an e-mail to Rick Nimrick, [*12] defendant's Regional Human Resource Manager, detailing the information received from O'Daniel and indicating he did not believe plaintiff could perform the maintenance mechanic position without violating his medical restrictions. Nimrick concurred with Brownrigg's assessment, advising him to tell plaintiff "the Maintenance position does not fit with or without a reasonable accommodation [but] if he is interested in another position within the plant, we will keep his application active for thirty days and contact him if we have something for him with or without a reasonable accommodation." Dk. 39, Exh. H. The record does not reflect that plaintiff requested any accommodation from defendant, or that defendant asked plaintiff about any potential accommodation. Plaintiff contacted O'Daniel a couple days later and O'Daniel transferred him to Brownrigg, who informed plaintiff he was not hired. Plaintiff alleges that he asked Brownrigg if it was due to his medical records and Brownrigg replied, "Yes, we don't hire handicapped people and we are not going to start with you. This conversation is over with. Goodbye." 5 5 Plaintiff's brief alleges that he "explained that he had no restrictions," Dk. 46, p. 16, 23. Because no record is cited in support of this assertion, the court has disregarded it, as well as other unsupported assertions. [*13] Plaintiff's EEOC charge alleges solely that he was "denied employment due to a perceived disability," based upon the following: I was perceived as disabled. I applied for a position of employment with the Respondent in August 2003. On September 22, 2003, I was informed by the Human Resources Director that I was denied employment due to my medical condition. Further more, he stated, "We don't hire disabled people." Dk. 39, Exh. K. Plaintiff is not aware of any employee allowed to commence work with defendant without completing a pre-employment physical or without being required to have a doctor submit medical records. Plaintiff is not aware of any employee with restrictions similar to his who was discharged by defendant, or of any employee who was treated differently than plaintiff was during the application process and pre-employment physical. ADA Plaintiff admits he is not disabled, but contends defendant perceived him as disabled and discriminated against him on that basis. The ADA provides that no covered employer "shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to ... the hiring, advancement, [*14] or discharge of employees." 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA in a failure to hire case, a plaintiff must show: (1) that [he] is a disabled person within the meaning of the ADA; (2) that [he] is qualified, that is, [he] is able to perform the essential functions of the job, with or without reasonable accommodation; and (3) that the employer [failed to hire him] under circumstances which give rise to an inference that the [failure to hire] was based on [his] disability. See Morgan v. Hilti, 108 F.3d 1319, 1323 (10th Cir.1997) (citations omitted); Endlich v. Yellow Corp., 182 2007 U.S. Dist. LEXIS 19942, *11 Page 4 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 14 of 22 Fed.Appx. 825, *828, 2006 WL 1520177, *2 (10th Cir. 2006). Defendant challenges each of these three elements. The burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) generally applies to ADA disparate treatment claims. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076, 1079 (10th Cir.1999). However, where the plaintiff has direct evidence of discrimination based on disability, the burden-shifting framework [*15] may be "unnecessary and inappropriate." Morgan v. Hilti, Inc., 108 F.3d 1319, 1323 n. 3 (10th Cir.1997) (citing White v. York Int'l Corp., 45 F.3d 357, 361 n. 6 (10th Cir.1995)). In direct evidence cases, ? an employer will defend its decision on the ground that the plaintiff is not otherwise qualified for the position, with or without reasonable accommodation. The McDonnell Douglas burden shifting approach is unnecessary because the issue of the employer's intent has been admitted and the plaintiff has direct evidence of discrimination on the basis of his disability. If the plaintiff in such a case is in fact statutorily disabled, the determinative issue in the case will not be the employer's intent, but whether the employee is "otherwise qualified," with or without reasonable accommodation, to perform the job, a factual dispute that is resolved through traditional methods of proof. Monette v. Electronic Data Systems Corp., 90 F.3d 1173, 1182 (6th Cir. 1996) (discussing White, 45 F.3d at 361 n. 6). Davidson v. America Online, Inc., 337 F.3d 1179, 1189 (10th Cir. 2003) (emphasis [*16] added). In this case, the facts, read in the light most favorable to plaintiff, arguably show direct evidence of defendant's intent to discriminate against plaintiff on the basis of his "disability." See Hall v. U.S. Dept. of Labor, Admin. Review Bd., 476 F.3d 847, 2007 WL 458009, *6 (10th Cir. 2007) (defining and explaining direct evidence); Dk. 39, Exh. K. (decision-maker's alleged explanation to plaintiff why he was not hired, as "We don't hire disabled people.") Accordingly, the court first addresses whether the plaintiff is in fact statutorily disabled. See Davidson, 337 F.3d at 1189. Regarded as disabled The ADA broadly defines 'disability' " to include "being regarded as having ... an impairment" that substantially limits one or more of an individual's major life activities." 42 U.S.C. § 12102(2). Plaintiff's only claim that he meets the statutory definition of disability is that he was erroneously perceived as disabled by the defendant. As the regulations interpreting the ADA explain, [t]he purpose of the "regarded as" prong is to provide a cause of action to individuals "rejected from a job because of the 'myths, fears [*17] and stereotypes' associated with disabilities." See Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S. Ct. 2139, 144 L. Ed. 2d 450 (1999) (quoting 29 CFR pt. 1630, App. § 1630.2(i)). The court finds it unnecessary to recite at length the legal standards governing this determination, and instead refers the parties to the case of E.E.O.C. v. Heartway Corp., 466 F.3d 1156, 1162 (10th Cir. 2006). The only major life activity asserted in this case is the activity of working. The claim that an employer regarded a plaintiff as substantially limited in the major life activity of working is a "particularly difficult" claim on which to prevail. Heartway Corp., 466 F.3d at 1162. The EEOC regulations state that "[w]ith respect to the major life activity of working," [t]he term "substantially limit[ed]" means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j)(3)(i) [*18] (quotation marks added); see also Bolton v. Scrivner, Inc., 36 F.3d 939, 942 (10th Cir.1994) (applying this regulation); C.F.R. § 1630.2(j)[(3)](ii)(C); MacDonald v. Delta Air Lines, Inc., 94 F.3d 1437, 1444-45 (10th Cir. 1996). It is thus insufficient for plaintiff to show that defendant treated his medical restrictions as significantly restricting his ability to perform the maintenance job for which he applied. He must additionally show that defendant treated those restrictions as significantly restricting his ability to perform either (a) "jobs utilizing similar training, knowledge, skills or abilities" within his geographical area or (b) a broad range of "jobs not 2007 U.S. Dist. LEXIS 19942, *14 Page 5 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 15 of 22 utilizing similar training, knowledge, skills or abilities" within the geographical area. See Siemon v. AT & T Corp., 117 F.3d 1173, 1176 (10th Cir. 1997). To meet this burden, plaintiff relies solely on Mr. Brownrigg's testimony before the Emporia Human Rights Commission, which the court has found to be inadmissible. See Dk. 46, pp 25-27. For this reason alone, plaintiff cannot avoid summary judgment on this claim. Additionally, although the direct evidence [*19] shows defendant's belief that plaintiff was unable to perform the maintenance position, other evidence reveals defendant's belief that plaintiff could be considered for other jobs within the plant. See Dk. 39, Exh. H (Nimrick's recommendation to Brownrigg that he tell plaintiff "the Maintenance position does not fit with or without a reasonable accommodation [but] if he is interested in another position within the plant, we will keep his application active for thirty days and contact him if we have something for him with or without a reasonable accommodation.") Such evidence tends to show that defendant did not regard plaintiff as substantially limited in his ability to work. See McGeshick v. Principi, 357 F.3d 1146, 1151 (10th Cir. 2004); Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284, 1290 (10th Cir. 2000). Further, the evidence bearing on defendant's perception of plaintiff's impairment indicates that defendant's perception was not based upon speculation, stereotype, or myth, but upon the very information plaintiff gave to defendant regarding doctors' written restrictions of plaintiff's physical abilities. The doctor's restrictions give [*20] no indication that plaintiff's major life activities were substantially limited, but instead indicated that plaintiff was restricted from doing certain tasks. No evidence tends to show that defendant had work available which would not have required plaintiff to do the tasks defendant reasonably believed plaintiff could not do without violating his restrictions. Plaintiff thus fails to present evidence to establish a genuine issue of material fact that defendant regarded him as disabled from either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. See Wooten v. Farmland Foods, 58 F.3d 382, 386 (8th Cir. 1995); Rebarchek v. Farmers Co-op. Elevator and Mercantile Ass'n., 60 F. Supp. 2d 1145 (D. Kan. 1999); Ouzts v. USAir, Inc., 1996 U.S. Dist. LEXIS 11610, 1996 WL 578514 (W.D.Pa.1996); see also Bernhard v. Doskocil Cos., 861 F. Supp. 1006, 1013 n. 13 (D. Kan. 1994) (citing legislative history in support of proposition that this prong of the disability definition was not intended to apply where an employer relies on limitations imposed by a doctor). [*21] The court finds it unnecessary to reach the other elements of this claim, including whether plaintiff is "otherwise qualified" for the position. Failure to Accommodate/ Disparate Impact The court similarly finds it unnecessary to reach plaintiff's claim that defendant refused to provide any accommodations for him. See generally Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1124 n. 4 (10th Cir. 2004). The court additionally finds that plaintiff's disparate impact claim 6 is not "like or reasonably related to" plaintiff's allegations in his EEOC charge and is thus barred by plaintiff's failure to exhaust his administrative remedies. See Pacheco v. Mineta, 448 F.3d 783 (5th Cir.2006); Noreuil v. Peabody Coal Co., 96 F.3d 254, 258-59 (7th Cir. 1996); see generally, Aramburu v. Boeing Co., 112 F.3d 1398, 1410 (10th Cir. 1997). Alternatively, the court finds that the record fails to present a material question of fact that defendant had a policy or practice of ascertaining whether job applicants had filed workers' compensation claims against previous employers. Accordingly, summary judgment is warranted on [*22] these ADA claims. 6 Plaintiff contends that defendant has a practice of ascertaining whether job applicants have previously filed workers' compensation claims against previous employers, which causes a significant disparate impact upon potential employees who have exercised such rights. Prohibited Inquiry The pretrial order includes one claim on which defendant has not moved for summary judgment - plaintiff's claim that defendant illegally inquired about plaintiff's previous workers' compensation claim because that inquiry was not shown to be job-related and consistent with business necessity. (Dk. 33, p. 8-9.) See generally, Endlich v. Yellow Corp., 182 Fed. Appx. 825, 829-830, 2006 WL 1520177,*4 (10th Cir. 2006). Plaintiff relies upon 42 U.S.C.A. § 12112 (d)(4)(A). Assuming, arguendo, that defendant did ask about plaintiff's prior workers' compensation claims after 2007 U.S. Dist. LEXIS 19942, *18 Page 6 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 16 of 22 making a conditional job offer to plaintiff, 7 plaintiff is not entitled to relief. The statute [*23] upon which plaintiff relies, 42 U.S.C.A. § 12112 (d)(4)(A), gives protection to "employees." No showing has been made that plaintiff was an employee of defendant, or should be considered to be so for purposes of this statute. 7 No claim is made that defendant asked about plaintiff's medical history or workers' compensation claims prior to making a conditional job offer. Further, even assuming the applicability of the cited statute, plaintiff cannot show that he would have been hired but for such inquiry. See Hunter v. Habegger Corp. 1998 U.S. App. LEXIS 4167, 1998 WL 104635, *2 (7th Cir. 1998) (finding plaintiff would have to show more than a wrongful inquiry to prevail on anything other than a request for an injunction, would have to demonstrate that but for the wrongful inquiry plaintiff would have been hired as an employee.) Had defendant not inquired about plaintiff's workers' compensation history but asked solely for plaintiff's medical restrictions, defendant nonetheless would not have hired [*24] plaintiff because it reasonably believed that there were no jobs available that plaintiff could have performed within the medical restrictions plaintiff provided to defendant. Implied Contract Claim Plaintiff asserts an implied contract claim that he was offered and accepted a job conditioned solely upon his passing a physical examination, and that because he passed the physical examination but did not get the job, defendant breached their implied agreement. See Dk. 33, p. 6-7, Dk. 46, p. 28. Defendant asserts that the job offer was conditioned not only upon plaintiff's passing a physical examination, but also upon plaintiff's ability to perform the functions of the position without violating his medical restrictions, which plaintiff could not do. The court does not believe that the doctrine of implied contract has any application under Kansas law where, as here, the words used express that the agreement is conditional. See Adair v. Transcontinental Oil Co., 184 Kan. 454, 469-470, 338 P.2d 79,91 (Kan. 1959). "Contract implied-in-fact is a doctrine applicable to a meeting of the minds, inferred without explicit words from the conduct of the parties [*25] as showing their tacit understanding; it can have no application where the explicit words actually used express the thought that agreement is conditional." Lewis v. United States, 231 Ct. Cl. 799, 1982 WL 36718, (Ct. CI. 1982), citing Colonial Metals Co. v. U. S., 494 F.2d 1355, 1359, 204 Ct. Cl. 320 (Ct. CI. 1974), overruled on other grounds, Torncello v. U. S., 231 Ct. CI. 20, 681 F.2d 756, 231 Ct. Cl. 20,(Ct. CI. Jun 16, 1982). Even if a legal basis for this claim were recognized, this case presents no question of fact about any meeting of the minds. Plaintiff signed an application clearly stating the defendant had no intention to enter into any kind of contract with plaintiff. Although a disclaimer does not necessarily preclude the formation of an implied contract of employment, see, e.g., Morriss v. Coleman Co., 241 Kan. 501, 738 P.2d 841, 849 (Kan. 1987), a disclaimer signed by a plaintiff can be dispositive of the employer's intent. Buckley v. Keebler Co., 153 F.3d 726, 1998 WL 314566, *3 (10th Cir. 1998). Summary judgment is proper on a claim of implied contract where the plaintiff presents only evidence of his own unilateral expectations of employment. [*26] Buckley, 153 F.3d 726, 1998 WL 314566, *2 (10th Cir. 1998). There is no "meeting of the minds" created by unilateral expectations of an employee. Conyers v. Safelite Glass Corp., 825 F. Supp. 974 (D. Kan. 1993). Plaintiff thus fails to raise a material question of fact on this issue. Kansas Public Policy - Retaliatory Failure to Hire Plaintiff additionally claims that defendant's refusal to hire him was in retaliation for plaintiff's having filed a worker's compensation claim against a previous employer. Both parties agree that recognition of this cause of action would require an extension of Kansas law. Assuming, arguendo, that Kansas courts would recognize this cause of action, plaintiff would have to show, among other elements, that there is a causal connection between defendant's decision not to hire plaintiff and plaintiff's prior worker's compensation filings. See Garcia v. IBP, Inc., 1994 U.S. Dist. LEXIS 15554, 1994 WL 590905, *4 (D. Kan.1994); Ortega v. IBP, Inc., No. 92-2351, 1994 U.S. Dist. LEXIS 9857, 1994 WL 373887, *6 (D. Kan. July 1, 1994); Rebarchek v. Farmers Co-op Elevator, 272 Kan. 546, 35 P.3d 892, 899 (Kan. 2001); Pilcher v. Board of Co. Commissioners, 14 Kan. App. 2d 206, 213, 787 P.2d 1204 (1990). [*27] The court does not decide whether this claim is cognizable in Kansas because even if such a claim were actionable, plaintiff has not presented substantial evidence tending to prove his protected activity was a 2007 U.S. Dist. LEXIS 19942, *22 Page 7 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 17 of 22 determining factor in defendant's decision not to hire him. In support of the causal element of this tort claim of retaliatory failure to hire, plaintiff contends that he has direct evidence of "discrimination on the basis of his disability." Dk. 46, p. 14. Although plaintiff fails to specify the evidence he alludes to, the court believes it can only be Brownrigg's alleged statements that plaintiff was not hired because of his medical restrictions and that "we don't hire disabled/handicapped people." Plaintiff rests its case upon the fact that the court must view this evidence in the light most favorable to plaintiff, and must assume that this statement was made. But plaintiff does not show how these references to "medical restrictions" or "handicapped people" relate to the filing of a prior worker's compensation claim. One can have medical restrictions and be disabled without ever having engaged in the protected activity of filing a worker's compensation claim. In light of [*28] the other evidence of record, this statement fails to raise a reasonable inference that defendant was referring to plaintiff's worker's compensation claim. Plaintiff thus fails to show a material question of fact that defendant refused to hire him because of his prior worker's compensation filings. IT IS THEREFORE ORDERED that defendant's motion for summary judgment (Dk. 38) is granted. Dated this 20th day of March, 2007, Topeka, Kansas. s/ Sam A. Crow, U.S. District Senior Judge 2007 U.S. Dist. LEXIS 19942, *27 Page 8 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 18 of 22 LEXSEE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, v. C.M.I., INC., d/b/a SHAWNEE PRICE CHOPPER, Defendant Civil Action No. 87-2213-O UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS 1988 U.S. Dist. LEXIS 12147 October 3, 1988, Decided and Filed CASE SUMMARY: PROCEDURAL POSTURE: Plaintiff Equal Employment Opportunity Commission (EEOC) filed a motion for partial summary judgment on the issue of defendant employer's violation of the record-keeping provision of 29 C.F.R. § 1602.14(a) and for separate trials on the issues of liability and remedy. OVERVIEW: The EEOC filed an action against the employer for alleged discriminatory hiring practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq. The EEOC's motions for partial summary judgment and to bifurcate the trial were pending before the court. The employer raised numerous defenses to the motion for partial summary judgment. In granting both motions, the court held that (1) the employer's claim that the EEOC was estopped from asserting a record-keeping violation in light of the settlement of an action brought by an individual against the employer was without merit, and the suit had no preclusive effect upon the case; (2) the employer's claim that its employment applications were not "records" within the meaning of 29 C.F.R. § 1602.14(a) was rejected because the regulation explicitly covered employment applications; (3) the defense of laches was not available to the employer; and (4) separating the action into two trials would be conducive to expeditious resolution of the dispute and judicial economy. OUTCOME: The court granted the EEOC's motion for partial summary on the issue of the employer's violation of regulations requiring record-keeping. The court also granted separate trials on the issues of liability and remedy. LexisNexis(R) Headnotes Administrative Law > Separation of Powers > Executive Controls Labor & Employment Law > Posting & Recordkeeping Labor & Employment Law > U.S. Equal Employment Opportunity Commission > Enforcement > Investigative Authority [HN1] 29 C.F.R. § 1602.14(a) provides in part: Any personnel or employment record made or kept by an employer, including but not necessarily limited to application forms submitted by applicants, shall be preserved by the employer for a period of six months from the date of the making of the record or the personnel action involved, whichever occurs later. Where a charge of discrimination has been filed, or an action brought by the Equal Employment Opportunity Commission (EEOC) or the Attorney General, against an employer under Title VII, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. The date of "final disposition of the charge or the action" means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where an action is brought against an employer either by the aggrieved person, the EEOC, or by the Attorney General, the date on which such litigation is terminated. Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > Laches Page 1 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 19 of 22 Labor & Employment Law > Posting & Recordkeeping Labor & Employment Law > U.S. Equal Employment Opportunity Commission > Enforcement > Investigative Authority [HN2]The court finds that the use of the disjunctive term "or" throughout section 29 C.F.R. § 1602.14(a) means that an employer is required to keep the records covered by that section until (1) the final disposition of all litigation based upon those records against that employer, whether brought by an individual or the government, or (2) the equitable doctrine of laches reasonably becomes available to the employer, whichever is later. Civil Procedure > Pleading & Practice > Defenses, Demurrers & Objections > Affirmative Defenses > General Overview Civil Procedure > Pleading & Practice > Pleadings > Complaints > General Overview Governments > Legislation > Statutes of Limitations > Time Limitations [HN3]The court concludes that the defendant employer can successfully raise the defense of laches when the Equal Employment Opportunity Commission waited over five and one-half years after the initial complaint to file a class action against the employer, during which time the employer destroyed certain records essential to a defense of the action. COUNSEL: [*1] Charles A. Shanor, General Counsel, Philip Sklover, Associate General Counsel, Equal Employment Opportunity Commission, Washington, D.C., James R. Neely, Jr., Regional Attorney, S. Robert Royal, Supervisory Trial Attorney, C. Felix Miller, Senior Trial Attorney, Equal Employment Opportunity Commission, St. Louis, Missouri, Robert A. Olsen, Assistant U.S. Attorney, Kansas City, Kansas, for Plaintiff C.M.I., Inc. d/b/a Shawnee Price Chopper, David K. Duckers, Kansas City, Kansas Richard W. Noble/Eugene F. DeShaz, G. Adolph Schmidt, Kansas City, Missouri, for Defendant OPINION BY: O'CONNOR OPINION MEMORANDUM AND ORDER EARL E. O'CONNOR, CHIEF UNITED STATES DISTRICT JUDGE This is an action by the Equal Employment Opportunity Commission ("EEOC") against defendant for alleged discriminatory hiring practices, in violation of Title VII of the Civil Rights Act of 1964, Title 42, United States Code, section 2000e et seq. ("Title VII"). The matter is before the court on plaintiff's motion for partial summary judgment and its motion for separate trials. Defendant responded (out of time) only to the former motion. Because the court finds that oral argument on the motion for partial summary judgment would not [*2] be of material assistance, it hereby denies defendant's request for same, pursuant to Local Rule 206(d). I. Motion for Partial Summary Judgment Plaintiff moves the court for partial summary judgment on the issue of defendant's violation of the record-keeping provision of 29 C.F.R. § 1602.14(a). Defendant raises a number of defenses to this motion, all to no avail. 1 1 Even if the court were to accept defendant's purported defenses to plaintiff's motion, partial summary judgment in favor of plaintiff would still be appropriate because defendant failed to respond to plaintiff's request to admit the violation until after the time allowed, thus admitting the allegations, pursuant to Rule 36 of the Federal Rules of Civil Procedure. Moreover, Magistrate Rushfelt has already denied defendant's motion to file responses to plaintiff's request for admissions out of time for failure to show good cause. See Order entered June 30, 1988. A. Collateral Estoppel The bulk of defendant's contentions are directed at convincing the court that the EEOC is estopped from asserting a records-keeping violation, in light of the settlement of the action brought by Anthony Fuller in Fuller [*3] v. Price Chopper, No. 86-2344-S (filed August 4, 1986). 2 This court has already dealt with the issue of whether Fuller's suit has any preclusive effect upon this action, concluding that it does not. See Equal Employment Opportunity Commission v. C.M.I., Inc., d/b/a Shawnee Price Shopper [sic], No. 87-2213 (D. Kan., unpublished, November 9, 1987). Accordingly, defendant's assertion of collateral estoppel is without 1988 U.S. Dist. LEXIS 12147, * Page 2 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 20 of 22 merit. 3 2 The EEOC initially learned of defendant's possible discrimination in hiring through a complaint lodged by Fuller. 3 In passing, the court notes that, even if the Fuller case were relevant to the issue of estoppel, the elements of that defense have not been met. B. Violation of § 1602.14(a) Defendant claims that it has not violated the record-keeping provision relied upon by plaintiff, [HN1] 29 C.F.R. § 1602.14(a). That regulation provides, in relevant part, that Any personnel or employment record made or kept by an employer (including but not necessarily limited to application forms submitted by applicants . . .) shall be preserved by the employer for a period of 6 months from the date of the making of the record or the personnel action involved, [*4] whichever occurs later. . . . Where a charge of discrimination has been filed, or an action brought by the Commission or the Attorney General, against an employer under title VII, the respondent employer shall preserve all personnel records relevant to the charge or action until final disposition of the charge or the action. . . . The date of "final disposition of the charge or the action" means the date of expiration of the statutory period within which the aggrieved person may bring an action in a U.S. District Court or, where an action is brought against an employer either by the aggrieved person, the Commission, or by the Attorney General, the date on which such litigation is terminated. 29 C.F.R. § 1602.14(a). Defendant's claim that its employment applications are not "records" within the meaning of the regulation is obviously not warranted by existing law, as the regulation explicitly covers employment applications. Furthermore, [HN2]the court finds that the use of the disjunctive term "or" throughout section 1602.14(a) means that an employer is required to keep the records covered by that section until (1) the final disposition of all litigation based upon those records against [*5] that employer, whether brought by an individual or the government, or (2) the equitable doctrine of laches reasonably becomes available to the employer, whichever is later. In reaching this conclusion, the court relies, in part, upon the observation of the Fourth Circuit in Equal Employment Opportunity Commission v. Am. Nat. Bank, 652 F.2d 1176 (4th Cir. 1981): Employers have been on notice since the earliest days of Title VII's enforcement of the critical importance of the maintenance of employment records going back at least to the effective date of the Title. In consequence, holding this employer to the normal litigation consequences of a failure to maintain relevant employment records imposes no higher standard than that dictated by sound business judgment in respect of the maintenance of all business records having potential relevance in any of the litigation patterns to which businesses stand constantly exposed. Id. at 1195-96. Of course, if the delay between the individual and governmental complaints were excessively long, it is possible that the destruction of records could be justified on equitable grounds, as in Equal Employment Opportunity Commission v. Dresser [*6] Industries, Inc., 668 F.2d 1199 (11th Cir. 1982). In that case, [HN3]the court concluded that the defendant employer could successfully raise the defense of laches when the EEOC waited over five and one-half years after the initial complaint to file a class action against the employer, during which time the employer destroyed certain records essential to a defense of the action. In the case at bar, the EEOC filed its complaint in this court on May 8, 1987, two and one-half years after the initial complaints by Anthony Fuller against defendant and less than two months after settlement was reached in the Fuller case. Accordingly, the defense of laches is not available. C. Sanctions In its reply memorandum, plaintiff raises the question of sanctioning defendant for certain alleged misstatements of fact contained in defendant's response. Because the question was not squarely presented, the court declines to rule on the issue at this time. II. Separation of Trials Plaintiff moves the court, pursuant to Rule 42(b) of the Federal Rules of Civil Procedure, for separation of this action into two trials, one to determine liability and a subsequent one to determine any remedy. Defendant [*7] has not responded to this motion. The court is persuaded that, in this case, such a bifurcation will be conducive to 1988 U.S. Dist. LEXIS 12147, *3 Page 3 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 21 of 22 expeditious resolution of the dispute and judicial economy, in that it will accelerate discovery. See Martin v. Bell Helicopter Co., 85 F.R.D. 654, 659 (D. Colo. 1980), and cases cited therein. IT IS THEREFORE ORDERED that plaintiff's motion for partial summary judgment is granted. IT IS FURTHER ORDERED that plaintiff's motion for separate trials is granted. Dated this 3rd day of October, 1988, at Kansas City, Kansas. 1988 U.S. Dist. LEXIS 12147, *7 Page 4 Case 1:16-cv-00104-TDS-JEP Document 27-5 Filed 05/26/17 Page 22 of 22