Opinion
i:02-CV-2292-MHS
October 16, 2003
ORDER
This matter is before the Court on defendant's motion for summary judgment. For the following reasons, the Court grants defendant's motion.
Background
Plaintiff initiated this action against defendant Home Depot U.S.A., Inc. (Home Depot), pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq., seeking damages and injunctive relief for Home Depot's failure to accommodate his hearing impairment and Home Depot's negligent and intentional infliction of emotional distress
Plaintiff, a deaf man who is able to speak, communicates with others by reading their lips, exchanging written notes, or reading the signs of a sign language interpreter. On June 6, 1997, plaintiff submitted a written employment application to a Home Depot assistant store manager, Steve Brumbelow. Although plaintiff was already employed by the United States Postal Service, plaintiff sought a part-time position at Home Depot so that he could take training courses that would enable him to complete home improvement projects on his own home and so that he could share home improvement advice with his friends.
Unless identified as a disputed fact, the facts in this Order are not in dispute. Plaintiff admitted to 74 of defendant's 81 statements of material facts as to which there is no genuine issue to be tried and the Court adopted the same almost verbatim. Plaintiff denied 7 of defendant's statements, but failed to cite evidence suggesting that there is a genuine issue to be tried. See Local Rule 56.1B(2) ("All material facts contained in the moving parties statement which are not specifically controverted by the respondent in respondent's statement shall be deemed to have been admitted.").
When plaintiff interviewed for the part-time Home Depot position, he did not request a sign language interpreter. Based upon plaintiff's employment application and interview, Mr. Brumbelow immediately offered employment to plaintiff as a part-time sales associate in the hardware department.
The essential functions of the Home Depot sales associate position are: (i) verbally communicating with employees and customers, (2) assisting customers and answering their questions, and (3) reading company-provided literature to develop a good knowledge of Home Depot's products.
During the first week of his employment, plaintiff participated in a five-day orientation course to learn about Home Depot policies and how to interact with customers. A sign language interpreter was not present at the class. After he completed the orientation class, plaintiff completed the class evaluation forms and wrote that the class trainers presented the material in an effective way, that the "5 days of orientation is worth it" and that "now I can prepare for a start with little frustration."
During the first three or four months of his employment, plaintiff attended monthly "Super Sunday" meetings. Home Depot encourages employees to attend Super Sundays, which are pep rallies held to foster esprit de corps among associates, to celebrate the store's sales performance, and to present service awards to associates. Infrequently, Home Depot provided product training at Super Sunday meetings. Employees who are absent from a Super Sunday meeting may obtain this training by reviewing written materials, including "Product Knowledge" books. When plaintiff stopped coming to Super Sundays, Home Depot did not discipline him.
Home Depot suggests that associates who wear hearing assistance devices wear the devices at all times to successfully perform the essential functions of offering assistance to and communicating with customers. While all Home Depot associates wear an orange apron, Home Depot suggests that hearing impaired associates wear a special apron developed by some of Home Depot's hearing impaired associates that explains the associate is hearing impaired and invites customers to tap the hearing impaired associate on the shoulder to receive assistance.
Plaintiff rejected Home Depot's suggestion that he wear his hearing aid and he told his store manager, "You can't make me wear my hearing aids. It's my choice." Pl. Dep. at 198-99, 28081. Plaintiff also rejected Home Depot's suggestion that he wear a special apron identifying him as hearing impaired. When one of plaintiff's managers asked him to wear the apron, plaintiff said he would not wear it, "threw it in the locker room[,] and left it there." Pl. Dep. at 285.
Plaintiff denied this statement in his response to defendant's statement of material facts as to which there is no genuine issue to be tried. However, the statement is incapable of being denied because it is based solely upon plaintiff's direct deposition testimony and plaintiff did not set forth specific facts showing there is a genuine issue for trial.
Plaintiff requested from Home Depot a sign language interpreter "thousands of times" and requested that Home Depot provide an interpreter "for anything." Home Depot occasionally provided plaintiff a sign language interpreter' at Super Sunday meetings, group training sessions, and a one-on-one training session in the hardware department. Employing a sign language interpreter cost Home Depot $30.00 per hour of service and travel plus $.28 per mile of travel. On at least one occasion, plaintiff failed to attend a meeting when Home Depot had obtained an interpreter for his assistance.
Plaintiff also requested, on a weekly basis, that Home Depot provide him a vibrating pager and a telecommunication device for the deaf (TDD). Plaintiff wanted the equipment to make it easier to serve customers. Home Depot denied the request.
Home Depot never disciplined plaintiff for poor customer service. During his employment at Home Depot, plaintiff received an overall rating of "acceptable" or "highly effective" on every performance evaluation he received. Plaintiff's only discipline at Home Depot occurred when plaintiff failed to work his scheduled shift and plaintiff received a raise for good performance every year he worked at Home Depot.
During his employment at Home Depot, plaintiff signed up to receive training to operate a forklift in the store. Plaintiff wanted to operate a forklift to retrieve products for customers, to provide him with experience to obtain employment with another company, and to benefit him in his job with the United States Postal Service. Plaintiff did not want to receive forklift training to obtain increased wages, increased benefits, or a promotion at Home Depot and Home Depot associates do not receive higher wages, additional benefits, or promotions based on forklift certification.
Home Depot's policy permits hearing impaired associates to receive training on lift equipment if they can hear and communicate with their spotter, other associates, and customers while operating the lift vehicle. Under this policy, many hearing impaired associates have become trained to operate lift equipment. Home Depot prohibits those who are completely unable to hear a spotter from operating forklifts.
Home Depot's policy is based on safety considerations, including regulations promulgated by the Occupational Safety and Health Administration. The ability to perform a job safely without risking injury to oneself or others is a an essential function of every job at Home Depot. Plaintiff understands that Home Depot's policy prohibiting those employees who cannot hear a spotter from operating forklifts was based on safety considerations.
Plaintiff "neither admitted nor denied" this statement in his response to defendant's statement of material facts as to which there is no genuine issue to be tried. Under the Local Rules, "[t]he response that a party has insufficient knowledge to admit or deny is not an acceptable response unless the party has complied with the provisions of Fed.R.Civ.P. 56(f)." Local Rule 56.1B(2). Because plaintiff has not shown that there is a genuine issue for trial or that additional evidence is needed in accordance with Fed.R.Civ.P. 56(f), the Court treated this statement as if there were no genuine issue to be tried.
On November 12, 1999, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging that Home Depot violated the Americans with Disability Act by denying him the opportunity to operate a forklift.
Around January 2001, plaintiff requested that he not be assigned weekends or other peak customer times because they conflicted with his job at the United States Postal Service.
Plaintiff was not denied any promotion while he worked at Home Depot. Had plaintiff applied for a promotion, he would have been required to become a full time associate because Home Depot does not employ part-time store managers, part-time assistant store managers, or part-time department heads. Plaintiff never wanted to quit his job at the United States Postal Service to seek full time employment at Home Depot.
On October 23, 2001, plaintiff requested a three-month leave of absence to care for his wife and told Home Depot that he would be able to work starting January 26, 2002. Home Depot granted plaintiff's request.
On November 5, 2001, Home Depot implemented a new scheduling policy called "customer based schedules." The policy was intended to provide more flexibility to meet customer demands. All current associates were required to complete a new form, "Scheduling Preference Worksheet," to identify the hours that they could work each day of the week.
On February 1, 2002, plaintiff filed for Chapter 7 bankruptcy with the United States Bankruptcy Court for the Northern District of Georgia. Plaintiff's bankruptcy petition includes plaintiff's "statement of financial affairs" and "schedule B-personal property." In response to question 4 on the statement of financial affairs, which asks the debtor to disclose all suits and administrative proceedings to which the debtor is a party, plaintiff checked none. In response to question 20 on schedule B-personal property, which asked the debtor to disclose "contingent and unliquidated claims of every nature," plaintiff checked none. Plaintiff never disclosed on his bankruptcy petition his then-pending charge of discrimination against Home Depot or any other legal claims against Home Depot.
Plaintiff did not return to work in January or February 2002 as Home Depot expected. On March 6, 2002, a Home Depot human resources employee, Karen Prince, mailed plaintiff a letter asking him to contact her so she could schedule his return to work. In the next eight days, Ms. Prince made eleven telephone calls to plaintiff's home, but never reached him. On March 14, 2002, Ms. Prince sent another letter to plaintiff to instruct him to attend a meeting at the store on March 22, 2002, to discuss his return to work and his new work schedule. Ms. Prince's letter indicated that an interpreter had been scheduled for the meeting.
At the March 22, 2002, meeting, plaintiff was told that the purpose of the meeting was to discuss and schedule plaintiff's return to work, explain how the scheduling policy had changed, and to answer any of plaintiff's questions. Plaintiff refused to complete the schedule preference worksheet and complained about "previous problems." Ms. Prince told plaintiff that she would not force him to complete the schedule preference worksheet and that he could voluntarily resign if he wanted to. Plaintiff agreed and signed a form that he was resigning voluntarily. Ms. Prince told plaintiff that he was eligible for rehire if he ever desired to work again for Home Depot. Plaintiff never attempted to revoke his resignation or reapply for a Home Depot position.
On March 25, 2002, plaintiff sent a letter to Home Depot claiming that it had improperly denied his requests for reasonable accommodations during his employment and that Home Depot had constructively discharged him.
On May 17, 2002, the bankruptcy court discharged plaintiff's debts. On May 20, 2002, the EEOC issued plaintiff his right to sue letter and on August 19, 2002, plaintiff filed this action against Home Depot.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure "mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The movant bears the initial responsibility of asserting the basis for his motion. Celotex. 477 U.S. at 323; Apcoa. Inc. v. Fid. Nat'l Bank. 906 F.2d 610, 611 (11th Cir. 1990). However, the movant is not required to negate his opponent's claim. The movant may discharge his burden by merely "showing — that is, pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Celotex. 477 U.S. at 325. After the movant has carried his burden, the non-moving party is then required to "go beyond the pleadings" and present competent evidence designating "specific facts showing that there is a genuine issue for trial."Id. at 324. While the court is to view all evidence and factual inferences in a light most favorable to the non-moving party,Samples v. City of Atlanta. 846 F.2d 1328, 1330 (11th Cir. 1988), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be nogenuine issue of material fact." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
A fact is material when it is identified by the controlling substantive law as an essential element of the non-moving party's case.Anderson. 477 U.S. at 248. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the nonmovant. Id. The nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial.'"Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). An issue is not genuine if it is unsupported by evidence, or if it is created by evidence that is "merely colorable" or is "not significantly probative." Anderson. 477 U.S. at 249-50. Thus, to survive a motion for summary judgment, the non-moving party must come forward with specific evidence of every element material to that party's case so as to create a genuine issue for trial.
Discussion
In its motion for summary judgment, Home Depot argues that it is entitled to judgment as a matter of law because plaintiff is judicially estopped from pursuing the claims for money damages he failed to disclose to the bankruptcy court. Home Depot also argues that plaintiff abandoned his claims for intentional and negligent infliction of emotional distress, admitted there is no dispute of material fact, and failed to allege a prima facie case of discrimination on the basis of disability.
1. Defendant's Judicial Estoppel Defense
Judicial estoppel is an equitable doctrine which prohibits a litigant from taking an inconsistent position in subsequent litigation if "the allegedly inconsistent positions were made under oath in a prior proceeding [and] such inconsistencies [are] shown to have been calculated to make a mockery of the judicial system." Salomon Smith Barney. Inc. v. Harvey. 260 F.3d 1302, 1308 (11th Cir. 2001).
Courts can dismiss money damages claims in discrimination cases such as the one before the Court when the debtor failed to disclose to the bankruptcy court his pending employment discrimination claim. See De Leon v. Comcar Indus., Inc., 321 F.3d 1289 (11th Cir. 2003) (affirming dismissal of employment discrimination action when debtor failed to disclose in Chapter 13 proceedings the discrimination charge he previously filed with EEOC); Burnes v. Pemco Aeroplex. Inc., 291 F.3d 1282 (11th Cir. 2002) (affirming dismissal of employment discrimination claim for monetary damages when debtor failed to supplement Chapter 7 disclosures to identify the discrimination charge that he subsequently filed with EEOC). In these cases, the court found that the debtors' knowledge about their claims and the obvious financial incentive to conceal assets in bankruptcy proceedings supported the district courts' inferences that the debtors "calculated to make a mockery of the judicial system."
In the case at bar, there is no dispute that plaintiff was obligated by law to make candid disclosures to the bankruptcy court, that he personally knew about his discrimination claim against Home Depot, and that he never disclosed that he had Filed a charge of discrimination with the EEOC. The only issue is whether plaintiff "calculated to make a mockery of the judicial system."
Plaintiff argues that he "inadvertently" omitted his pending EEOC charge from his bankruptcy petition and that he told his bankruptcy lawyer that "he was entangled in an employment dispute with Home Depot." Plaintiff also argues that he and his deaf wife could not easily communicate with their bankruptcy lawyer and that this "communication breakdown" resulted in the lawyer's failure to disclose the EEOC charge. Plaintiff claims that he could not understand his lawyer's written notes because sign language, not English, is "plaintiff's native or first language."
The only evidence plaintiff offers in support of his position is an affidavit from his bankruptcy lawyer, Debra McLean. Ms. McLean states that she knew her client was deaf, that she did not have a sign language interpreter present during her consultations, and that she elected to communicate with her client through the Georgia Relay Service, a service of the Georgia Public Safety Commission (PSC). Plaintiff disclosed to Ms. McLean that he was "having a problem with his then part-time employer, Home Depot, because they would not allow him to operate a forklift." Ms. McLean did not ask plaintiff if he had retained counsel to pursue the matter or if he had filed any administrative charge.
According the PSC's website, the Georgia Relay service allows a person who is deaf, hard of hearing or speech disabled to type his or her conversation using a text telephone (TDD/TTY). A Georgia Relay Service Communications Assistant (CA) relays the message by reading it to the hearing person at the other end.
Until Home Depot raised the defense of judicial estoppel, plaintiff never mentioned that he could not read and write English. In fact, his version of the facts leading up to his departure from Home Depot clearly supports the conclusion that plaintiff can read and write English: plaintiff submitted a written application for employment at Home Depot, plaintiff exchanged written notes with his classmates during the orientation program, plaintiff completed the orientation program's written evaluation form, plaintiff filed a written charge of discrimination with the EEOC, and plaintiff wrote a letter to Home Depot after his employment ended accusing Home Depot of denying him reasonable accommodation and constructively discharging him. Given this evidence, which is not in dispute, the Court gives little weight to plaintiff's convenient and unsupported "native language" argument.
The Court finds that plaintiff knew that he had personally filed the discrimination charge with the EEOC, that plaintiff later wrote the letter to Home Depot accusing the store of wrongfully discharging him, that plaintiff knew that he had an economic incentive to hide his discrimination claim, and that plaintiff, therefore, intended to manipulate the judicial system. Accordingly, plaintiff is judicially estopped from pursuing his monetary damages claims against Home Depot.
2. Plaintiff's Claims of Negligent and Intentional Infliction of Emotional Distress
Plaintiff failed to respond to Home Depot's motion for summary judgment on plaintiff's claims for negligent and intentional infliction of emotional distress. Having shown that there is no genuine issue to be tried. Home Depot is entitled to summary judgment on the claims.
3. Plaintiff's Claims for Declaratory and Injunctive Relief
Plaintiff alleges that he and similarly situated employees with disabilities were and continue to be denied an equal employment opportunity by Home Depot's forklift training policy that permits hearing impaired associates to receive forklift training only if they can hear and communicate with a spotter.
Home Depot argues that plaintiff admitted he was never qualified to operate a forklift and that its policy is legal because it is based upon actual and significant safety concerns about forklift use in stores during business hours. Home Depot contends that the abilities to hear and communicate with a spotter are essential functions of a forklift operator and cites its failed attempt to use a vibrating wrist band for forklift operators who could not hear a spotter. the test failed because the operators could not distinguish the forklift's vibrations from the vibrating signal from the spotter. Home Depot also provides evidence that it consulted with an associate at the Georgia Resource Center for the Deaf when it developed its current forklift policy. Finally, Home Depot argues that no employee is denied raises, benefits, or promotional opportunities if they are not trained to operate a forklift.
The ADA prohibits employers from discriminating against qualified individuals with disabilities because of their disabilities in regard to the terms and conditions of their employment and requires employers to reasonably accommodate qualified individuals with disabilities. 42 U.S.C. § 12112(a) and (b)(5)(A). Job qualifications that "tend to screen out an individual with a disability or a class of individuals with disabilities" are illegal unless such qualifications are shown to be "job-related for the position in question and [are] consistent with business necessity." 42 U.S.C, § 12112(b)(6). However, "[a]n ADA plaintiff bears the burden of proving that she is a `qualified individual with a disability' — that is, a person who, with or without reasonable accommodation, can perform the essential functions of her job." Cleveland v. Policy Met. Sys. Corp., 536 U.S. 795, 806 (1999) (quoting 42 U.S.C. § 12111(8)).
The Court finds that plaintiff was unable to perform the essential functions of forklift operation and that plaintiff identified no reasonable accommodation that would have enabled him to effectively communicate with a spotter. Further, the Court concludes that Home Depot's policy does not discriminate against people with disabilities because of their disability because it permits those hearing impaired persons who are capable of hearing a spotter to operate forklifts. Such a qualification is sufficiently related to the safe operation of forklifts that the Court concludes that Home Depot's forklift policy is job-related and a business necessity. Accordingly, the Court grants Home Depot's motion for summary judgment on plaintiff's injunctive and declaratory relief claims.
Summary
For the foregoing reasons, the Court GRANTS defendant Home Depot U.S.A. Inc.'s motion for summary judgment [#21-l] and DISMISSES this action.
IT IS SO ORDERED