Opinion
1:99CV1010
January 4, 2001
MEMORANDUM ORDER
Plaintiff Robert Clement filed a complaint against Defendant Bojangles' Restaurants, Inc. ("Bojangles") alleging discrimination in violation of the Americans with Disabilities Act ("ADA"). In addition, Plaintiff has alleged a pendent state law claim for wrongful discharge in violation of the public policy of the State of North Carolina. This matter is now before the court on Defendant's motion for summary judgment, [Pl. no. 21], filed pursuant to Rule 56 of the Federal Rules of Civil Procedure, and Plaintiff's motion to compel discovery [Pl. no. 18]. For the reasons set forth below, Defendant's motion will be granted and Plaintiff's motion will be denied.
On August 28, 2000, Plaintiff filed a "Motion in Opposition to Defendants Motion for Summary Judgment." [Pl. no. 25.] Plaintiff asserts that he is entitled to summary judgment for reasons set forth in his motion. The court, however, construes Plaintiff's pleading not as a motion for summary judgment, but rather as a response to Defendant's properly filed summary judgment motion. Not only was Plaintiff's motion filed outside the time period established for filing dispositive motions, but based upon the reasons set forth in this memorandum opinion, the court finds that Plaintiff's motion would be futile.
FACTS
The following facts, presented in the light most favorable to Plaintiff, are contained within the pleadings, affidavits, declarations, deposition testimony, and exhibits offered by the parties. The underlying facts of this case are generally not in dispute.
On January 5, 1998, Plaintiff Robert Clement was hired by Defendant Bojangles' as a kitchen worker. Two months later, on March 15, 1998, Plaintiff voluntarily resigned from his employment with Bojangles' due to complications from a back injury he had previously sustained. Plaintiff was subsequently rehired by Defendant on November 23, 1998 to work as a kitchen worker at one of Defendant's restaurants in Salisbury, North Carolina.
On January 11, 1999, during his second term of employment, Plaintiff presented his supervisor, Eric Fowler, with a work limitation slip signed by Dr. Susan Sykes, his treating physician. (Clement Dep. at 97.) According to the limitation slip. Plaintiff was to avoid twisting, bending and lifting over 25 pounds. (Clement Dep. at 97; Sykes Aff. at ¶ 6.) When presented with this information, Mr. Fowler asked Plaintiff to explain the limitations imposed by his physician. (Clement Dep. at 97, 99.) In response, Plaintiff simply advised Mr. Fowler that the restrictions on the limitation slip needed to be followed, that he was to avoid twisting and frequent bending, and that Mr. Fowler could delegate a coworker to carry chicken for Plaintiff if Mr. Fowler deemed it necessary. (Clement Dep. at 98-100.) In addition, Plaintiff suggested that he be given a position change, from that of kitchen worker to either sandwich maker, drive-thru operator, or cashier. (Clement Dep. at 99-100.) Mr. Fowler informed Plaintiff that he "would see what he could do." (Clement Dep. at 130, 139.) During follow-up conversations on unknown dates between January 11, 1999 and January 31, 1999, Mr. fowler continued to inform Plaintiff that he was "still looking into" Plaintiff's requested accommodations. (Clement Dep. at 139.)
On February 1, 1999, Plaintiff presented Defendant with medical documentation signed by Dr. Sykes requesting that Plaintiff be allowed a two-week medical leave of absence. (Clement Dep. at 101-102; Def's Ex. 1.) Defendant granted this request. Thereafter, on February 17, 1999, Plaintiff presented Defendant with medical documentation signed by Dr. Leo Young requesting that Plaintiff be provided an additional six month medical leave. (Clement Dep. at 105-106; Def's Ex. 3.) Defendant again granted Piaintiff's request.
On or about March or April 1999, Plaintiff applied for, and was granted, unemployment benefits based on his assertion that he was required to resign from his position at Bojangles' due to medical reasons and on the advice of his physicians. Defendant did not contest Plaintiff's claim for unemployment benefits, and Plaintiff never returned to his employment at Bojangles' at any time after January 31, 1999.
DISCUSSION
A party is entitled to judgment as a matter of law upon a showing that "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The material facts are those identified by controlling law as essential elements of claims asserted by the parties. A genuine issue as to such facts exists if the evidence forecast is sufficient for a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists if the nonmoving party fails to make a sufficient showing on an essential element of its case as to which it would have the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In evaluating a forecast of evidence on summary judgment review, the court must view the facts and inferences reasonably to be drawn from them in the light most favorable to the nonmoving party. The court may not weigh conflicting evidence or resolve disputed facts. Ross v. Communications Satellite Corp., 759 F.2d 355. 364 (4th Cir. 1985).
When the moving party has carried its burden, the nonmoving party must come forward with evidence showing more than some "metaphysical doubt" that genuine and material factual issues exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), cert. denied, 481 U.S. 1029 (1987). A mere scintilla of evidence is insufficient to circumvent summary judgment. Anderson, 477 U.S. at 252. Instead, the nonmoving party must convince the court that, upon the record taken as a whole, a rational trier of fact could find for the nonmoving party. Id. at 248-49. Trial is unnecessary if "the facts are undisputed, or if disputed, the dispute is of no consequence to the dispositive question." Mitchell v. Data General Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993).
I. Defendant Bojangles' Motion for Summary Judgment
To establish a prima facie case of discrimination under the ADA based on an allegation that the defendant-employer failed to provide a reasonable accommodation, a plaintiff must offer evidence establishing that: (1) he has a disability within the meaning of the ADA; (2) he is a "qualified individual"; and (3) the defendant failed to make reasonable accommodations for the plaintiff's disability. Tyndall v. National Education Centers, Inc., 31 F.3d 209, 212 (4th Cir. 1994).
A prima facie case for unlawful discharge on account of a disability requires that a plaintiff prove three elements very similar to those required to establish an accommodation claim. Specifically, a plaintiff must offer evidence tending to show that: (1) he has a disability within the meaning of the ADA; (2) he is a "qualified individual"; and (3) he was discharged because of his disability. Halperin v. Abacus Technology Corp., 128 F.3d 191, 197 (4th Cir. 1997.)
Defendant Bojangles' does not contest that Plaintiff is an individual with a disability within the meaning of the ADA. Rather, Defendant contends that Plaintiff cannot establish the essential elements of his claims because: (1) he is not a qualified individual; (2) he was not denied a reasonable accommodation; and (3) he was not discharged from his employment.
The phrase "qualified individual with a disability" is defined by the ADA to mean "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Accordingly, the court must inquire about what are the essential functions of Plaintiff's former position with Bojangles' and whether Plaintiff has the ability to in fact perform those functions. If the court finds based upon undisputed evidence, that Plaintiff cannot perform all of the essential functions, then an examination of whether a reasonable accommodation would enable Plaintiff to perform those functions must be made.
For the purposes of determining what constitutes an "essential function" of a position, the ADA advises that "consideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job" Id. In the present case, Plaintiff was employed as a kitchen worker. The essential functions of this position are not disputed by the parties, and include the following tasks: (1) lift and carry products to be used and/or stocked; (2) stock and restock products; (3) clean the kitchen and other areas in the restaurant; (4) wash dishes; (5) sweep and mop floors; (6) change and filter the cooking shortening; (7) pick-up and discard rubbish; (8) respond at a rapid and continuous rate during peak operating times; and (9) marinate, bread, and cook the chicken. (Harris Declaration at ¶ 5; Clement Dep. at 125.)
Plaintiff testified at his deposition regarding the extent of his medical limitations both during and after his employment with Bojangles'. According to his testimony, Plaintiff's disability requires that he: (1) avoid all bending; (2) avoid twisting; (3) not stand for longer than 30 minutes at any one time without a minimum ten minute break; (4) avoid twisting and lifting simultaneously; (5) avoid twisting and bending simultaneously; (6) avoid raising his hands above shoulder level; (7) not lift over 25 pounds; (8) not walk continuously; (9) avoid all activities where "heat frustration" might occur; (10) avoid sweeping and mopping; and (11) limit standing and walking to four hours in an eight hour shift. (Clement Dep. at 16-18, 21, 37, 39, 41-44, 50, 61-63, 65, 73-74.) Based upon these limitations, Plaintiff admitted that there were several functions, essential to the position of kitchen worker, that he could not perform. Notably, Plaintiff's disability prevents him from being able to clean oven hoods, stock various products, change oil in the fryers, sweep and mop floors, pick-up and carry chicken, move continuously to work the grill during peak times, and wash windows. (Clement Dep. at 33-36, 40, 46-47, 50, 63, 71-72, 74, 98-100.) Based upon this evidence, the court finds that there is no genuine issue of material fact regarding Plaintiff's inability to perform the essential functions of his position. Having reached this conclusion, the court must next examine the issue of whether a reasonable accommodation would enable Plaintiff to perform these functions.
An individual may still be considered a "qualified individual with a disability" if reasonable accommodations would allow the individual to perform the requisite components of the employment position in question. Under the ADA, a reasonable accommodation may include "[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, [or] modifications of equipment or devices." 29 C.F.R. § 1630(o)(2)(ii). The statute does not require, however, that an employer hire an additional person to perform an essential function of a disabled employee's position or that an employer reallocate essential functions to other employees. See Martinson v. Kinney Shoe Corp., 104 F.3d 683, 687 (4th Cir. 1997); Brickers v. Cleveland Bd. of Education. 145 F.3d 846, 850 (6th Cir. 1998).
In the case at bar, Plaintiff requested as an accommodation that another employee be allowed to carry the chicken for him. (Clement Dep. at 98-100, 140.) Plaintiff did not request any additional accommodations in his position as a kitchen worker. Id. Although Plaintiff would undeniably have benefitted from another employee assisting him in the carrying of chicken, even this accommodation would not have enabled him to perform the numerous other essential functions of a kitchen worker. Defendant contends that the only way Bojangles' could have accommodated Plaintiff in that position would have been to hire an additional employee to perform all of Plaintiff's essential functions, reallocate his duties to other employees, or exempt Plaintiff from performing many of his essential functions. These accommodations are clearly not reasonable, and thus it follows that they are not required by the ADA.
Plaintiff also requested as an alternative accommodation that he be transferred to another position as a sandwich maker, drive-thru operator, or cashier. (Clement Dep. at 94, 97-100.) The undisputed evidence reveals that the essential functions of all crew member positions, including sandwich maker, drive-thru operator, and cashier, involved: (1) stocking and restocking products; (2) lifting and carrying products to be either used or stocked; (3) picking up and disposing of rubbish; (4) continuous and rapid response during peak times; (5) sweeping and mopping floors; and (6) cleaning tables, windows, counters, and restroom facilities. (Harris Declaration at ¶ 7.) Although each crew member must perform additional duties particular to a specific position, the majority of each shift is spent performing the common functions of stocking, restocking, cleaning, and responding to customer needs and demands. (Harris Declaration at ¶ 14.)
Based upon Plaintiff's extensive physical limitations, as discussed above, Plaintiff would be unable to perform virtually all aspects of every crew member position. Furthermore, any accommodation that could enable Plaintiff to perform the essential functions of these positions clearly would not have been reasonable as a matter of law. In addition, Plaintiff has presented no evidence suggesting that a sandwich-maker, cashier, or drive-thru operator position was available during the time in question. See 42 U.S.C. § 12111(9) (noting that a reasonable accommodation may include "reassignment to a vacant position") (emphasis added).
The reasonableness of a proposed accommodation is a question of fact which ordinarily should be decided by a jury. See Pandazides v. Virginia Bd. of Education, 13 F.3d 823, 833 (4th Cir. 1994). In this case, however, the undisputed facts ineluctably lead to the conclusion that Plaintiff's proposed accommodations are unreasonable. As noted above, a reasonable accommodation does not encompass reallocation of, or exemption from, essential job functions. In sum, Plaintiff has failed to articulate any reasonable accommodations that would allow him the ability to perform the essential functions of any crew member position with Defendant Bojangles'. The court therefore concludes that there are no material factual disputes and that, as a matter of law, Plaintiff is not a "qualified individual" within the meaning of the ADA. Having found that Defendant is entitled to summary judgment on this basis, the court need not further examine whether Defendant failed to provide a reasonable accommodation or if in fact Plaintiff was discharged.
In addition, the court finds that Plaintiff's pendent state law claim for wrongful discharge in violation of public policy fails as a matter of law. Because Plaintiff has failed to establish a viable cause of action under the ADA, he cannot prevail on his common law claim for wrongful discharge. See Williams v. Channel Master Satellite Systems, Inc., 101 F.3d 346 (4th Cir. 1996).
II. Plaintiff's Motion to Compel Discovery
On July 10, 2000, Plaintiff filed a motion to compel discovery, [Pl. no. 18], requesting this court to issue an order compelling Defendant "to provide documents and to answer Plaintiffs interrogatories as allowed under rules [sic]." In response to Plaintiff's motion, Defendant asserts that it has in fact responded to Plaintiff's two separate sets of interrogatories and has provided Plaintiff with all requested documents. Accordingly, Defendant contends that Plaintiff's motion should be denied.
Upon review, the court finds that Plaintiff's motion must fail for one principal reason. Namely, Plaintiff has neglected to set forth with particularity the documents and interrogatory answers he so desires. See LR 7.3(b)("All motions shall state with particularity the grounds therefor, shall cite any statute or rule of procedure relied upon, and shall set forth the relief or order sought.") Secondarily, the uncontroverted evidence shows that Plaintiff did in fact receive the discovery he now moves to compel, and thus, has suffered no prejudice. See, Exhs. B, D, and E to Defendant's Response to Motion to Compel Discovery (Pl. no. 20).
CONCLUSION
For the foregoing reasons, the court GRANTS Defendant Bojangles' motion for summary judgment on all claims and DENIES Plaintiff Robert Clement's motion to compel discovery. A Judgment in accordance with this memorandum order shall be entered contemporaneously herewith.
J-U-D-G-M-E-N-T
For the reasons set forth in the Memorandum Order filed contemporaneously with this Judgment,
IT IS HEREBY ORDERED AND ADJUDGED that this action be, and the same hereby is dismissed with prejudice.