Opinion
Case No. 4:20-cv-00976-HFS
2022-08-03
Roby ANDERSON, Plaintiff, v. KAR GLOBAL d/b/a ADESA Missouri, LLC, Defendant.
John J. Ziegelmeyer, III, Kevin Todd, Brad K. Thoenen, HKM Employment Attorneys LLP, Kansas City, MO, for Plaintiff. Craig Borowski, Pro Hac Vice, Littler Medelson, P.C., Indianapolis, IN, Dylan Murphy Long, Littler Mendelson, PC, Kansas City, MO, for Defendant.
John J. Ziegelmeyer, III, Kevin Todd, Brad K. Thoenen, HKM Employment Attorneys LLP, Kansas City, MO, for Plaintiff.
Craig Borowski, Pro Hac Vice, Littler Medelson, P.C., Indianapolis, IN, Dylan Murphy Long, Littler Mendelson, PC, Kansas City, MO, for Defendant.
MEMORANDUM AND ORDER
HOWARD F. SACHS, UNITED STATES DISTRICT JUDGE
Defendant, ADESA Missouri, LLC , has filed a motion for summary judgment. Plaintiff, Roby Anderson, has filed opposition, and ADESA has filed its reply. Thus, the matter is ripe for disposition.
Defendant states that ADESA Missouri, LLC is plaintiff's employer and the proper defendant. (Doc. 30, Mot. Summ. Judg. p. 1, n. 1). ADESA Missouri further states that it is wholly-owned by ADESA, Inc., which is wholly-owned by KAR Auction Services, Inc. – not a legal entity. (Id.).
Background
Plaintiff began employment with ADESA in February 2018, as an outside sales representative, and suffered a seizure on or about November 16, 2019, while attending his daughter's soccer game. (Complaint: ¶¶ 7-8). Plaintiff returned to work within two days, and informed his management team and Human Resources of his doctor's order prohibiting him from driving for six months. (Id.: ¶¶ 9, 10-11).
Plaintiff states that HR personnel and his management team developed a plan for accommodation in which he would work in-house three days a week, and an inside sales representative would drive him to appointments two days a week. (Id.: ¶ 12). He was later told this would not work going forward. (Doc. 52, p. 45). On November 26, 2019, supervisor Lindsey Comer asked him why he could not drive for six months, and advised him that she was advised by supervisor Kevin Rhoades to disclose the driving-prohibition problem to her boss and HR. (Id.: ¶¶ 13-15).
On or about December 2, 2019, plaintiff met with Comer who advised him of a plan to move him to a "hunter" role, described as one in which plaintiff would go to the physical locations of potential customers in an attempt to gain their business. (Id.: ¶ 16) . Plaintiff advised Comer that he made his own arrangements to handle his driving restriction. (Id.: ¶ 17). Defendant concluded this was not feasible because the proposed driver was not an employee. (Doc. 49, p. 8). On December 17, 2019, plaintiff was terminated but advised that it was due to his low sales numbers. (Id.: ¶¶ 18-19). About 50 other sales-related positions were eliminated. (Doc. 49, p. 14).
A "farmer" position required the ability to service and maintain customers. (Doc. 49, ¶ 21).
Plaintiff commenced this action alleging violation of the Americans with Disabilities Act ("the ADA"), 42 U.S.C. § 12101, specifically in Count I for retaliation, and in Count II for disability discrimination.
Discussion
Standard of Review
Summary judgment is appropriate if the evidence demonstrates 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. Ciszewski v. Engineered Polymers Corp., 179 F.Supp.2d 1072, 1083 (D. Minn. 2001) ; citing, Fed.R.Civ.P. 56(c). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Id. However, the nonmoving party may not merely rest upon allegations or denials in its pleadings, but must set forth specific facts by affidavits or otherwise showing that there is a genuine issue for trial. Id.
Although the Eighth circuit has stated that summary judgment should seldom be granted in employment discrimination cases, summary judgment is proper when a plaintiff fails to establish a factual dispute on an essential element of her case. Id., at 1084.
Americans With Disabilities Act ("ADA")
Under the ADA, employers are barred from discriminating against a qualified individual because of the disability of such individual. Ciszewski, at 1084 ; citing, 42 U.S.C. § 12112(a). To establish a prima facie case under the ADA, the plaintiff must demonstrate that (1) his condition qualifies as a disability within the meaning of the ADA; (2) he is qualified to perform the essential functions of his position with or without a reasonable accommodation; and (3) he has suffered an adverse employment action due to his disability. Id.
If a plaintiff can establish these three elements of his or her prima facie case, then the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its actions. Id. Once such a reason is proffered, the burden shifts back to the plaintiff to show that the employer's stated reason is pretextual. Id. To ultimately prevail, the plaintiff must establish that the employer treated plaintiff adversely because of a disability. Id.
The presence or absence of a disability is a threshold question, and under the ADA, disability is broadly defined to include a physical or mental impairment that substantially limits one or more of the major life activities of an individual. Id., at 1085 ; citing, 42 U.S.C. § 12102(2)(A). The Equal Employment Opportunity Commission ("EEOC") regulations define major life activities as caring for one's self, performing manual tasks, walking, seeing, hearing, breathing, learning and working as well as sitting, standing, lifting, and reaching. Id., at 1085 ; citing, Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 948 (8th Cir. 1999) ; see, 29 C.F.R. § 1630.2(i) (1998). An individual's major life activities are substantially limited if he is unable to perform a basic function the average person in the general population can perform, or is significantly restricted in the condition, manner, or duration under which he can perform a major life activity as compared to an average person in the general population. Ciszewski, at 1085. In determining whether a person is substantially limited in a major life activity, factors considered are (1) the nature and severity of the impairment; (2) its duration or anticipated duration; and (3) its actual or expected long-term impact. Id.
The court in Ciszewski, found that several plaintiffs failed to create a genuine issue of fact as to whether they were substantially limited in the major life activity of working because they relied almost exclusively on their medical restrictions to establish their disability, as opposed to the plaintiff in Fjellestad, who provided testimony from occupational experts regarding the number of available jobs in the plaintiff's market area, and jobs from which she was precluded by her medical restrictions. Ciszewski, 179 F.Supp.2d at 1088 ; citing, Fjellestad, 188 F.3d at 949.
Before proceeding further, it is noted that the issue of disability discrimination as ruled under the ADA in Ciszewski and numerous cases decided in this circuit must be decided under the liberalizing amendments enacted by Congress in 2008, sometimes referred to as ADAA. These amendments explicitly rejected the strict standard applied by the Court in Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) and its progenies in what constitutes a disability. Hawkins v. Arkansas Dept. of Human Services, 2017 WL 10621235 *5 (E.D.Ark.2017), ADAA, Pub.L. No. 110-325, § 2(b)(4), 122 Stat. 3553, 3554 (2008). In enacting the ADAA, Congress did not define a disability, but directed that it should be construed more broadly, and also focus on the employer's compliance with the ADA. Id. However, while the ADAA makes it easier to prove a disability, it does not absolve a party from proving one, and not every impairment will constitute a disability under the ADAA. Hawkins, at *6.
Against this backdrop, plaintiff contends that the very minor stroke ("seizure") he suffered in November 2019 as well as the subsequent event that occurred after termination in October 2021 from an undiagnosed underlying condition should be considered a disability under the ADA. (Doc. 49, Opp. Sugg., pp. 20-22). Plaintiff urges this court to consider broadly, as promulgated by the ADAA, his resulting short term driving restriction as a substantial limitation of a major life activity. (Doc. 49, pp. 22-24).
Turning first to plaintiff's contention that he is generally disabled, because of being susceptible to seizures, this was of course unknown to defendant when he was terminated and there is no authority supporting such a condition as a "disability" that requires accommodation. The six month driving limitation is, however, a very different question. The two problems are (1) brevity and (2) the possibility of different, non-driving, employment as precluding describing him as "disabled." Under current, post-amendment law, I cannot conclude he was not disabled at the time of termination.
It is true that Judge Ketchmark, in Travis v. Perdue, 2021 WL 328916 (W.D.Mo.) used a "temporary impairment" limitation to support a dismissal, based on a 2010 district court case and a pre-amendment Circuit Court ruling. But, post-amendment rejection of the narrow brevity bar is carefully spelled out in Shields v. Credit One Bank, N.A., 32 F.4th 1218 (9th Cir. 2022), where it was ruled that a disabling condition is not necessarily an insubstantial limitation simply because it may be corrected in a few months. For present purposes I accept Shields as precluding summary judgment on "brevity" grounds.
Current law probably supports plaintiff, who was essentially a traveling salesperson, when a physical condition precluded him from driving himself, as was his normal practice, and a separate driver would be needed. In Romeo v. Dart, 222 F.Supp.3d 707, 711 (N.D. Ill. 2016), it was suggested that "truck driving is a class of jobs", and that "a bus driver transporting inmates between the prison and the courthouse" would likely be engaged in driving activities "covered by the ADA". This rationale was based on an appellate decision which anticipated the generous application of the ADA favored by Congress in the later amendment. Best v. Shell Oil Company, 107 F.3d 544 (7th Cir. 1997). Another Circuit agreed with Best that "undoubtedly, an inability to drive will sometimes enable a plaintiff to meet (the) standard" required for disability coverage. Kellogg v. Energy Safety Services, Inc., 544 F.3d 1121, 1125 (10th Cir. 2008). Truck driving and bus driving would adequately satisfy the need for a class of cases where an inability to drive would be a "working" disability for ADA purposes. Therefore, a traveling salesperson's driving disability would apparently suffice at this stage of the proceedings.
Whether this would be unduly burdensome for the employer is a separate question not resolved here.
In this Circuit, plaintiff can probably find analogous help in Hawkins v. Arkansas Department of Human Services, 2017 WL 1062135, (E.D.Ark.2017), where "fragrance sensitivity" impeding employment in a group of perfume users was treated as a working disability issue for failure to accommodate purposes. I note, however as a problem case in this district Judge Laughrey's ruling in Stewart v. City of Osage Beach, 2011 WL 2693177 (W.D.Mo.2011), where a condition precluding night-time work was deemed insufficient as a class of work handicap to qualify as a disability under the ADA. I respectfully disagree with that characterization if the plaintiff there was subject to the amended law, an issue not considered in the opinion. The Stewart approach does seem closer to the line of cases disapproved by Congress in 2008.
In ruling the motion for summary judgment, I therefore assume plaintiff's driving limitation at the time of his termination would be a qualifying disability – although still requiring him to satisfy the causation issue for his termination, which he failed to do as discussed below.
Retaliation Claim - ADA
The ADA also provides that no person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter. Hutson v. Covidien, Inc., 654 F.Supp.2d 1014, 1023 (D. Neb. 2009) ; citing, 42 U.S.C. § 12203(a).
To establish a prima facie case of retaliation which plaintiff emphasizes by alleging it as Count I, he must show that (1) he engaged in a statutorily protected activity; (2) suffered an adverse employment action; and (3) there was a causal connection between the adverse employment action and the protected activity. Hutson, at 1023 ; see also, Hill v. Walker, 737 F.3d 1209, 1218 (8th Cir. 2013).
Plaintiff claims that once he requested an accommodation, he was terminated less than three weeks later, thereby raising an inference of discrimination. (Doc. 49, p. 32). An inference of a causal connection between a charge of discrimination and an adverse employment action can be drawn from the timing of the two events, but in general more than a temporal connection is required to present a genuine factual issue on retaliation. Hutson, at 1024, ; citing, Arraleh v. County of Ramsey, 461 F.3d 967, 977 (8th Cir. 2006). Thus, under present Eighth Circuit law, the first two elements of a prima facie case are satisfied, leaving open the issue of whether a causal connection between the two factors exists.
There is however a serious legal question as to whether a simple request for an accommodation can trigger a retaliation claim. See Part III in Kirkeberg v. Canadian Pacific Railway, 619 F.3d 898, 907 (8th Cir. 2010). This question remains, for possible Court en Banc consideration; it would be ruled against plaintiff if the rationale of the Missouri Supreme Court were adopted. Li Lin v. Ellis, 594 S.W.3d 238 (Mo. banc 2020).
Plaintiff claims further discriminatory intent is evident in email exchanges in which his supervisors, Lindsey Comer, Kevin Rhoades, urged Human Resources Manager, Marty Nowlin, to accommodate plaintiff's temporary driving restriction by permitting Jim Miller, an inside sales rep, to drive him to appointments two days a week. (Doc. 49, p. 32, Exh. E). Plaintiff states that both Comer and Rhoades "pushed hard" for the accommodation because he "was a high performer." (Id.). Plaintiff claims that when he proposed that his father-in-law could drive him to appointments as an alternate accommodation, supervisor, Kathy Hopkins, decided to terminate his employment. (Id.). The post-termination emails relied on by plaintiff between Hopkins and HR staff state in relevant part:
Dec. 6, 2019, at 12:55 p.m., from Hopkins to Nowlin, stating that an employee in Kansas City who has a six-month driving restriction has been identified for termination of employment; also, asking will it be an issue.
At 3:10 p.m., Nowlin responded to Hopkins, stating that it could be an issue because an accommodation had been provided to him as a high performer, however, Nowlin acknowledged that the role was changing. Nowlin asked what had changed, since Comer and Rhoades pushed hard for the accommodation.
At 3:28 p.m., Hopkins responded, stating her understanding that while plaintiff is best at closing a deal he doesn't like to manage the details, and that Rhoades previously found that plaintiff was not good at relationship building. Hopkins also noted that stronger candidates had been identified in every territory reasonable for plaintiff to cover, and that Comer and Rhoades advised against an alternative position for plaintiff because it was not his strength and he would not do well.
On Dec. 7, 2019, at 5:57 a.m., Nowlin acknowledged that in view of the role
change, the unreasonable nature of the accommodation, and plaintiff's skill set, the decision was defendable, and an attempt would be made to find plaintiff a position in auction.
(Doc. 31-12).
Plaintiff claims that certain decisions regarding merger and/or staffing reassignments on which defendant relies were not decided until after he had a seizure and sought accommodation in November 2019. (Doc. 49, p. 27). Yet, in his deposition he admitted that he heard about a reorganization of the sales force prior to the seizure. (Doc. 31, Mot. Summ. Judg., Exh. 2, pp. 65-66). Specifically, that TradeRev, a business entity under the KAR Global brand, would be merged with KAR. (Id., p. 67). TradeRev was an online auction requiring sales representatives to get dealers to post their vehicles online as opposed to his job to persuade dealers to get cars physically to auction; which would result in the overlapping of some sales territories. (Id., pp. 67-68).
Comer testified without rebuttal or impeachment that in September/October 2019, prior to plaintiff's seizure, she learned of the company's plan, after the merger of ADESA with TradeRev, to reorganize and redraw territories. (Doc. 31-8, p. 22). The company was joining two sales teams and a certain number of territories, with the goal of completion by January 2020. (Id., pp. 8-11). Statistics from Human Resources ranking employees by performance and goal achievement were used in determining which employees would be on the combined sales force teams. (Id., pp. 13-14). After the merger, sales force roles would be defined as Senior Dealer Solutions Executive "SDSE," or Dealer Solutions Executive "DSE" requiring selection of team members who exceeded their goals. Comer stated that plaintiff's failure to meet his goals led to Hopkins’ decision to terminate his employment. Rhoades testified similarly, confirming that in October 2019, he received company communication about the creation of a global sales team that would no longer be auctioned-based, but would involve assigned territories so that the sales force would cover multiple auctions, and depending on the overlap there would be a change of positions and roles. (Doc. 31-10, pp. 13-15) – which would be prior to plaintiff's seizure. Although Hopkins could not recall the exact date of the merger – possibly November or December 2019 – she testified that the decision to merge teams had been going on for some time. (Doc. 31-9, pp. 9-12).
Plaintiff also claims that the email correspondence between Hopkins and HR staff shows that Hopkins’ decision to terminate his employment was based on medical reasons. This is conclusory, and unsupported by the text, and insufficient to show an unlawful motive. As held in Hill, the reviewing official never suggested that the plaintiff was terminated because she requested an accommodation, as is necessary to establish liability for retaliation; rather, read in context, the reference to medical reasons was simply shorthand for the agency's conclusion that the plaintiff was not able to perform the essential functions of her position. 737 F.3d at 1219. Here, while Hopkins noted that plaintiff had a medical restriction (Doc. 49-5, p. 2), she also explained that based on feedback she received, plaintiff is a good "hunter" but not the best at relationship building. (Id., p. 1). Hopkins further explained that in every territory reasonable for plaintiff to cover, a stronger SDSE was identified, and both Comer and Rhoades advised her that the available DSE position was not a good fit for plaintiff and he would not do well in that role. (Id.). Thus, the evidence does not support a claim that Hopkins’ termination decision was based on medical reasons.
Plaintiff's claim of retaliation is essentially based only on the proximity of time between his reported seizure and termination as well as purported status as a high achiever at work, but his argument in support of these claims fails to show a causal connection between his seizure and termination of employment, and there is no evidence of hostility related to the accommodations discussed. Plaintiff's claim of retaliation is thus essentially based on the proximity of time between his reported seizure and termination as well as one favorable reference to one aspect of his work. There is no evidence of hostility relating to his request for accommodation. Thus, plaintiff has failed to establish a prima facie case of retaliation because the record reflects that plaintiff was one of many displaced employees because of the merger and plaintiff's general work record made him vulnerable to being terminated. There were thus causes unconnected with either his temporary disability or his request for accommodation that resulted in his inclusion in the terminated group.
Accordingly, defendant's motion for summary judgment (Doc. 30) is GRANTED, and the Clerk of the court is directed to enter judgment in favor of defendant.