Opinion
7:00CV5004.
March 12, 2002
MEMORANDUM AND ORDER
Background
This matter is before the court on defendant's motion for summary judgment, Filing No. 41. Plaintiff has filed a complaint under the Americans With Disabilities Act, 42 U.S.C. § 12112 (ADA). Plaintiff contends that she was employed by the defendant as Director of Sales Catering/Dining Room Manager from approximately November 1989 until she was terminated on June 29, 1998. She claims the discharge was due to her drug addiction disability. On or about February 3, 1998, plaintiff filed a charge of discrimination with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Opportunity Commission (EEOC). Plaintiff also contends that she was fired in retaliation for filing the NEOC/EEOC charges. She filed this lawsuit and alleges damages for past and future compensation, emotional distress, pain and suffering.
Toward the end of her employment, plaintiff attended an alcohol/drug treatment program. She alleges that after completing the program and returning to work on May 14, 1997, the manager and other employees began harassing her in an attempt to cause her to quit. She further contends that she received a 25% reduction in pay and had to listen to derogatory comments by the manager. Plaintiff contends that the defendant treated her status as a recovering alcoholic/drug addict as a motivating factor in its decision to reduce her pay and to fire her.
Defendant, in its Amended Answer, Filing No. 50, denies plaintiff's allegations of discrimination and affirmatively alleges that the plaintiff violated company rules and policies. Further, defendant contends that plaintiff never informed its management of any disability and did not ever ask for any accommodations. I have reviewed the motion, opposition, supporting briefs, evidence, and relevant case law. I conclude that the motion for summary judgment should not be granted.
Standard of Review
Summary judgment is properly granted "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." Fed.R.Civ.P. 56(c). Summary judgment will not be granted if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To prevail, the moving party must demonstrate to the court that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material only when its resolution affects the outcome of the case. Anderson, 477 U.S. at 248. A material issue is genuine if it has any real basis in the record. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).
On a motion for summary judgment, the court must view all evidence and inferences in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 250. However, the nonmoving party may not rest on the mere denials or allegations in the pleadings, but must set forth specific facts sufficient to raise a genuine issue for trial. Celotex, 477 U.S. at 324. Further, if the plaintiff cannot support each essential element of the claim, summary judgment must be granted because a complete failure of proof regarding an essential element necessarily renders other facts immaterial. Id. at 322-23. In cases alleging employment discrimination, however, summary judgment is often an inappropriate remedy since discrimination is difficult to prove by direct evidence. "Summary judgment should be sparingly used and then only in those rare instances where there is no dispute of fact and where there exists only one conclusion. All evidence must point one way and be susceptible of no reasonable inferences sustaining the position of the non-moving party." Johnson v. Minnesota Historical Soc'y, 931 F.2d 1239, 1244 (8th Cir. 1991).
Analysis 1. Discrimination
The ADA states that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions and privileges of employment." 42 U.S.C. § 12112(a). Plaintiff must show that: (1) she is disabled within the meaning of the ADA; (2) that she is qualified for the position, with or without reasonable accommodation; and (3) that the employer discriminated against her on the basis of her alleged disability that caused her to suffer adverse employment action. 42 U.S.C. § 12101 et seq; Conant v. Hibbing, 271 F.3d 782, 784 (8th Cir. 2001); Cooper v. Olin Corp., 246 F.3d 1083, 1087 (8th Cir. 2001). Under the ADA disability is defined as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2)(A)-(C). Further, the law states that a person who is "currently engaging in the use of illegal drugs" is not covered by the ADA. 42 U.S.C. § 12114(a). However, the statute has a safe harbor provision if the employee is in or has successfully finished a rehabilitation program and no longer uses illegal drugs. 42 U.S.C. § 12114(b)(2).
Plaintiff agrees that for purposes of this lawsuit, her lupus is irrelevant.
Defendant contends that plaintiff was discharged for legitimate business reasons. Defendant argues that these reasons had absolutely nothing to do with plaintiff's alleged disability.
I find very little in the record, prior to entering treatment, that plaintiff had an impairment as defined under the law. There is no evidence that the employer considered her disabled, and according to the uncontradicted affidavits as set forth below, her coworkers did not consider her to be impaired. See Roberts v. Unidynamics, 126 F.3d 1088, 1092 (8th Cir. 1997) (beliefs of other coworkers relevant). There is absolutely no evidence that the plaintiff told her employer, prior to her return from the treatment center, that she had a drug/alcohol problem. In fact, her deposition is to the contrary. (Foland Dep. 158:11-15.) No employees had knowledge or a belief that the plaintiff had a disability. (Grieb Aff. ¶ 10; Knaub Aff. ¶¶ 7-8, 12; Cole Aff. ¶¶ 9-10; Dobrinski Aff. ¶ 10; Hopper Aff. ¶ 6; Skinner Aff. ¶ 5.) No evidence has been presented that there is any record of a disability. In that same regard, there is absolutely no evidence that the plaintiff ever asked for an accommodation for her drug/alcohol problem, other than possibly for church on Sunday. (Simpson Aff. ¶¶ 3-4; Foland Dep. 148:18-149:1). Further, after reviewing the plaintiff's deposition, it is clear that her alleged disability did not impair any major life activities. See Sutton v. United Airlines, Inc, 527 U.S. 471, 483 (1999) (court must evaluate whether individual has an impairment that substantially limits major life activities). She was still able to cook, clean, shop, have a social life, work, and so forth. Nor does the evidence presented indicate that she was unable to perform the functions of her job. (Foland Dep. 95-102; 123-130.)
The only issues, then, are whether the plaintiff was treated adversely once knowledge of her drug use and treatment were known and why plaintiff was terminated. Plaintiff agrees in her deposition that she distributed drugs to some of her friends and coworkers. (Grieb Aff. ¶ 4; Foland Dep. 71:13-15.) Also, she testified that she went to the Gambler Lounge during working hours and drank alcohol and used drugs. (Foland Dep. 137:18-23). There was testimony from coworkers that she was involved in extramarital relationships in the motel, and that monies were allegedly stolen by plaintiff from the defendant. (Dobrinski Aff. ¶¶ 6, 7, 8; Grieb Aff. ¶¶ 6-9.) One of the employees testified by affidavit that she and the plaintiff went drinking during work time hours. (Cole Aff. ¶¶ 7, 11.) However, it does not appear that any of these alleged transgressions were ever documented by the defendant, nor does it appear that these issues were even discussed with the plaintiff prior to entering drug treatment. In fact, plaintiff's evaluations for 1994-1996 were very positive, with no mention of any of these issues. (Ex. I, J and K). Plaintiff also contends that she did not receive a bonus because of her drug addiction. However, defendant contends that bonuses, which had previously been given in the past, were not given in 1997 due to financial losses in 1996, not for any discriminatory reason. The evidence presented to me shows that plaintiff may have been terminated for poor performance; however, the facts are disputed. First, it appears that she has been accused by the defendant of theft. Char Reynolds, a client of the defendant, states that she was given a verbal quote of $400.00 for a wedding, but following the wedding her daughter, Kiffany Weidow, was charged and paid to the plaintiff $1,000.00. (Reynolds Aff.; Weidow Aff.) Plaintiff testified that she received $397.86 from Char Reynolds. (Foland Dep. 170:19-25.) At the very least, the evidence shows that she marked down a booking by at least fifty percent and caused the defendant to lose money on the booking, in violation of defendant's work policy. (Simpson Aff. ¶ 5.) Plaintiff contends, however, that she has marked down bookings in the past, and she also argues that there is no written policy regarding markdowns and approval of markdowns. Further, defendant argues that plaintiff refused to immediately return to work after her treatment, citing her desire to not see a particular male or a particular group staying at the motel. (Knaub Aff. ¶ 5; Foland Dep. 69:16-24.) Plaintiff says she needed extra time following her treatment. I conclude that there exists enough contradictory evidence to submit this issue to the jury.
2. Retaliation
It is illegal to retaliate against an employee because she has communicated or assisted in an investigation or proceeding. 42 U.S.C. § 2000e-3(a). Plaintiff must show a causal connection between the adverse employment action and the protected activity. Flannery v. Trans World Airlines, Inc., 160 F.3d 425, 428 (8th Cir. 1998); Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 692 (8th Cir. 1997). Again, the defendant argues that plaintiff was discharged purely for performance reasons unrelated to the NEOC filing. Further, the evidence shows that other employees, Deb Cole and Tracy Green, went through drug treatment and were not terminated which, according to defendant, is evidence that it does not discriminate on the basis of drug/alcohol treatment or addictions. However, I think plaintiff has offered evidence that might allow a reasonable trier of fact to conclude that she was fired due to her filing of the NEOC claim. She was terminated within four months of filing her claim, and she has statements from management that, if in fact they were made, could allow a jury to conclude that the firing was related to the filing of the NEOC charge. I conclude that summary judgment should be not be granted on this claim. 3. NEOC Filing Requirement
Defendant alleges that plaintiff has failed to allege or produce a right-to-sue letter. Absent such a letter, defendant contends that plaintiff is barred from suit. "The receipt of a right-to-sue notice is not a jurisdictional prerequisite, but rather is a condition precedent to filing a TITLE VII claim, curable after the action has commenced." See Jones v. American State Bank, 857 F.2d 494, 499-500 (8th Cir. 1988). No right-to-sue letter has been offered in this case, although the plaintiff has now presented the NEOC determinations. (Ex. Q and R.) Plaintiff raised the issue early on in this case and again in this motion for summary judgment. Defendant has not responded in its opposition to summary judgment. Thus, I must assume that no right-to-sue letter was ever issued. Consequently, I conclude that, although not a jurisdictional prerequisite to suit, the right-to-sue letter is a condition precedent to suit. It has not been filed in this case, and plaintiff has not attempted to cure the problem. Consequently, the case should be dismissed on this basis alone. I will, however, give the plaintiff 30 days from the date of this order to produce a copy of the right-to-sue letter to this court.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that defendant's motion for summary judgment, Filing No. 41, should be and hereby is denied. It is further ordered that defendant shall have 30 days from the date of this order to produce a copy of the NEOC right-to-sue letter.