Opinion
CIVIL ACTION NO. 99-1106-AH-M.
March 15, 2001.
JUDGMENT
This matter having come before the Court on Defendant's Motion for Summary Judgment and in accordance with the findings of fact and conclusions of law entered this day, it is hereby ORDERED, ADJUDGED, and DECREED that Plaintiff shall have and recover nothing from Defendant and that Plaintiff's claims are due to be, and hereby are, DISMISSED WITH PREJUDICE.
ORDER
This matter is before the Court on Plaintiff's "Motion to Withdraw this Complaint/Action" (Doc. 44). Though not specifically stated in the Motion, the Court will assume that Plaintiff's request contemplates the Court dismissing his complaint without prejudice. The Defendant, Vanity Fair Intimates, has filed a timely response (Doc. 46). This action originates with a complaint filed against Vanity Fair pursuant to the Americans with Disabilities Act of 1990. Plaintiff Roy A. Harville has continued to prosecute this action pro se since October 24, 2000, the date this Court granted the `motion to withdraw' of Harville's former counsel, Thomas F. Campbell (Doc. 38). Defendant's Motion for Summary Judgment, filed December 20, 2000, is currently pending before the Court (Doc. 42). Plaintiff's instant Motion was filed on December 21, 2000 (Doc. 44).
DISCUSSION
The Federal Rules of Civil Procedure, Rule 41(a)(1) states:
(1) By Plaintiff; by Stipulation. Subject to the provisions of Rule 23(e), of Rule 66, and of any statute of the United States, an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.
F.R.C.P. (West 2000)
The general purpose of Federal Civil Rule 41(a), which governs voluntary dismissals, is to preserve a plaintiff's right to take a voluntary non-suit and start over, so long as a given defendant is not unduly prejudiced. Thus, a plaintiff can dismiss without a court's permission, and without prejudice to its being able to bring a new suit, if the defendant has not yet answered the complaint or moved for summary judgment. Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 394 (1990) ("Once the defendant has filed a summary judgment or answer, the plaintiff may dismiss the action only by stipulation") ( citations omitted). The rule also serves to fix the point at which the resources of the court and the defendant are so committed that dismissal without preclusive consequences can no longer be had as of right. In re Piper Aircraft Distribution System Antitrust Litigation, 551 F.2d 213, 220 (8th Cir. 1977).
In view of the provisions of Rule 41(a)(2), Plaintiff does not have the absolute right to take non-suit in this matter, as two triggering events barring the absolute right to voluntary dismissal have come into play. Service of both Defendant's Answer and Motion for Summary Judgment having been effected, Plaintiff may not voluntary dismiss without securing either an order from this Court or a stipulation from both parties. As no stipulation has been filed in this matter, the Court must decide whether the complaint should be dismissed without prejudice, and if so, upon what terms and conditions. This is a matter within the sound exercise of the Court's judicial discretion, subject to those terms and conditions the Court deems proper. See Grivas v. Parmelee Transp. Co., 207 F.2d 334 (7th Cir. 1953), cert. denied 347 U.S. 913.
Where a dismissal without prejudice would subject the defendant to substantial legal prejudice, as contrasted to mere inconvenience or vexation incident to defending a subsequent suit, permission to so dismiss should be denied. See Kennedy v. State Farm Mut. Auto. Ins. Co., 46 F.R.D. 12, 14 (E.D.Ark. 1969) ( emphasis supplied). Defendant observes that the current Motion was only proffered subsequent to a lengthy, full and extensive pre-trial discovery period, involving proceedings which not only interrupted the normal activities of Defendant's deposed officers and employees, but which also imposed upon Defendant the burden of substantial legal fees and other expenses. Defendant thus urges the Court to deny Plaintiff's Motion on the grounds that a dismissal without prejudice would result in undue prejudice, particularly since Defendant has already prepared a comprehensive Motion for Summary Judgment.
Though the chronologically advanced state of this litigation and the legal and other expenses incurred by Vanity Fair do not mandate a denial of Plaintiff's motion, real or potential prejudices to one party are certainly proper and persuasive factors to be evaluated. In this matter especially, given the ripeness of Defendant's Motion for Summary Judgment, the Court cannot help but be aware of the real prejudice Defendants would suffer were Plaintiff's Motion to be granted. Accordingly, given the advanced state of the proceedings, the currently pending Motion for Summary Judgment and the potential prejudice that would accrue to Defendant Vanity Fair if Plaintiff's Motion were granted, proper exercise of the Court's discretion mandates that Plaintiff's Motion to Voluntarily Dismiss should be, and it hereby is, DENIED.
ORDER
This matter is before the Court on Defendant Vanity Fair Intimates' ("Vanity Fair" or "VFI") Motion for Summary Judgment with supporting memoranda (Docs. 42, 43). The pro se Plaintiff in this matter, Roy A. Harville, has filed his timely response, also with supporting memoranda (Docs. 48, 49). Harville claims that Vanity Fair violated the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") by (1) discriminating against him because of his alleged disability; and (2) retaliating against him by cutting his hours. After considering Vanity Fair's Motion, supporting briefs, the evidence on file and applicable law, the Court finds for the reasons set forth below that Defendant's Motion for Summary Judgment is due to be granted.
I. FACTS
The Court hereby adopts the parties' "Agreed Facts" from the Joint Pre-Trial Order, which both parties have signed. The Court's findings of fact are as follows:
The defendant employs more than fifteen (15) employees and is thus an employer subject to Title VII. On May 2, 1993, the plaintiff, Roy A. Harville, applied for employment with VFI and was hired by the Company on August 16, 1993, as a temporary employee at VFI's plant located in Monroeville, Alabama (Harville Exs. 22 and 23). Harville worked less than a month and resigned on September 13, 1993, because "his legs were bothering him" due to his work as a material layup person (Harville Ex. 24). Harville submitted another job application on October 30, 1997, and was hired again by VFI as a temporary employee in the dye/finish facility on November 17, 1997 (Harville Exs. 25 and 26).
Citations to the plaintiff's deposition transcript are designated by "Tr." or "Ex." and the appropriate page or exhibit number.
Harville became a regular employee on February 15, 1998, and received a pay increase from $6.45 per hour to $7.15 per hour (Harville Ex. 28). Harville received a pay increase to $7.50 per hour on June 8, 1998, as the result of bidding for and being promoted to a laminator job in the cutting facility (Harville Ex. 29). An essential responsibility of the laminator job is the full operation of the cloth laminating machine, which includes the frequent lifting and/or moving of up to 50 pounds and the occasional lifting and/or moving of up to 100 pounds (Harville Tr. 80, Ex. 30). Only by performing each essential duty in a satisfactory manner, including the lifting requirements, is an employee able to perform the laminator job successfully (Harville Tr. 81, 138).
On July 7, 1998, Harville underwent heart bypass surgery (Harville Tr. 83-84). Harville experienced no complications during or after his surgery and convalesced normally (Harville Tr. 85). Harville's physician authorized him to return to work with a 25 to 30 pound lifting restriction, and he returned to work on September 4, 1998 (Harville Tr. 86, Ex. 33). On October 8, 1998, Harville requested another light duty note for that month from his physician, stating that "he still cannot hardly lift anything" (Harville Ex. 34). According to Harville, he requested this note because Merle Roley, the VFI plant nurse, asked for another note for her records. On October 8, 1998, Harville's physician restricted him to light duty for an extra month (Harville Ex. 35).
On December 4, 1998, Harville discussed his medical restrictions which prevented him from performing the heavy lifting required for the laminator job with Patsy Andress, his supervisor; Merle Roley, the plant nurse; and Lou Dunn, the Human Resource Manager (Harville Tr. 91-95, Ex. 36). To run the laminator job, Harville had to lift fifty-pound rolls of fabric and place them on a rolling table which he wheeled into position so that a hoist could be used to lift the roll of cloth and load the cloth laminating machine. Id. Each of these rolls exceeded Harville's lifting restrictions. Id. On the days Harville had to load the laminating machine, the fifty-pound rolls of fabric would accumulate since he was restricted from lifting them. Id.
During the meeting with VFI's representatives, Harville inquired about obtaining a "sit down job, " and the group discussed several alternatives, none of which existed at the time. Id. At the time of the meeting in December 1998, the plant's production required the cloth laminator to be run on one shift with the two lace machines (the narrow lace machine and the three lane lace machine) to be run on all three shifts (Harville Tr. 118-19, Ex. 45). Because the lace machines used rolls of lace weighing 10 pounds or less, VFI was able to accommodate Harville by transferring him to another shift so that he would not have to lift the 50-pound rolls of fabric required with running the cloth laminator machine. Id. The new shift accommodation worked fine until March 8, 1999, when Harville submitted a note from his physician which stated he was to avoid running the three lane lace machine and to rest his arm for three weeks due to a torn muscle in his chest (Harville Ex. 44, 74). On Harville's claim form for short-term disability, Dr. Sage marked the "Yes" box to the question about whether in his opinion the disability was the result of an injury arising from employment (Harville Ex. 74).
Under this restriction, Harville could only work on the narrow lace machine during his shift (Harville Tr. 11 8-19). The production needs of the plant required both the narrow lace machine and the three lane lace machine to be run (Harville Tr. 119). VFI could not accommodate Harville's request by putting two people on the shift to do the work normally done by one (operation of both lace machines), and it could not absorb the lost production that would result from shutting down the three lane lace machine on Harville's shift. Id. Harville was released to return to work on March 29, 1999, with a renewed lifting restriction of 25 pounds (Harville Ex. 51). During Harville's medical leave, VFI's production requirements had changed so that the cloth laminator had to be run on all shifts along with the two lace machines, so there was no shift available where Harville would be able to avoid running the laminator, which required lifting up to 100 pounds, and the lace machines (Harville Tr. 131-33). Since the first meeting with Harville on December 4, 1998, VFI asked Harville to supply VFI verification from his doctor giving a diagnosis and expected duration of his restriction (Harville Ex. 55). On April 26, 1999, VFI received a letter dated April 21 from Dr. Chernick, Harville's treating physician, which did not diagnose Harville's condition and did not address the expected duration of his restriction. Id. Harville was offered and accepted a ring, slide and link job in the strap department when the job became available (Harville Ex. 57).
During the last year of his employment with VFI, Harville was reprimanded on several occasions for poor attendance (Harville Exs. 60-62, 64). When an employee exceeds 5% absenteeism for a six-month period, he receives the first step in the progressive discipline policy: an oral warning, " after which the employee is given probation for three months. Id. If the employee's absenteeism still exceeds 5% at the end of the probationary period, he is given a "first written warning." Id. If at the end of the next three months the employee's absenteeism remains over 5%, he is given a "final written warning" and another probationary period. Id. At the end of that probationary period, if the employee's absenteeism still exceeds 5%, he is terminated. Id. Harville received an "oral warning" for poor attendance on December 4, 1998, when his absenteeism was 7%. Harville noted his explanation for his absenteeism in the "Comments" portion of the Employee Counseling Record (Harville Ex. 60). Harville also failed to qualify for an increase in pay on February 1, 1999, because his absenteeism was excessive at 7.5% (Harville Ex. 61). On September 7, 1999, Harville received an "oral warning" (dated September 3, 1999) for an absenteeism rate of 9.0% (Harville Ex. 62). On September 7, 1999, Harville left a letter about the verbal warning with Mike Mixon (Harville Ex. 63). On September 10, 1999, Human Resources representatives met with Harville and discussed with him in depth the attendance policy and his absences (Harville Ex. 64). As of September 10, 1999, Harville had missed approximately twelve days, in addition to the more than 50 days he was on leave of absence, which did not count as attendance violations (Harville Tr. 172-75, Exs. 63-64).
Harville continued to work in the ring, slide and link job until September 7, 1999, when he wrote VFI claiming that another disability, diabetes, kept him from performing the major life activity of standing for long periods of time (Harville Ex. 59). Harville asked VFI to provide him with an adjustable chair so that he could perform his job while alternating sitting and standing Id. A Short-term Disability Claim Form dated July 7, 1998, stated a diagnosis of "Coronary artery disease, diabetes" (Plaintiff's Ex. 80). On November 3, 1999, as a result of a reduction in force, VFI laid off thirteen strap department employees, including Harville (Harville Tr. 188-89). Harville filed a timely charge with the Equal Employment Opportunity Commission, and filed this lawsuit within 90 days of receiving his Notice of Right to Sue (Harville Ex. 72).
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be 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). "A factual dispute is `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. A fact is `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); accord Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992).
The basic issue before the Court on a motion for summary judgment is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." See Anderson, 477 U.S. at 251-252. The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden the Court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. See Adickes v. S.H Kress Co., 398 U.S. 144, 157 (1970); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). "If reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Miranda v. B B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank Trust v. Fidelity Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies their initial burden under Rule 56(c) of demonstrating the absence of a genuine issue of material fact, as the movant has done in this case, the burden shifts to the nonmovant to "come forward with `specific facts showing that there is a genuine issue for trial.'" See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)). Otherwise stated, the nonmovant must "demonstrate that there is indeed a material issue of fact that precludes summary judgment." See Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). "A mere `scintilla' of evidence supporting the [nonmoving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party." Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted). "[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole." Tipton, 965 F.2d at 998 (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). "`The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.'" Tipton, 965 F.2d at 999 (quoting Anderson, 477 U.S. at 255). "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, 475 U.S. at 587 (internal quotation and citation omitted).
III. DISCUSSION
The ADA prohibits discrimination against a qualified individual with a disability based on that disability when the discrimination involves the hiring, advancement, termination or conditions of employment of that qualified individual. Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1326 (11th Cir. 1998); 42 U.S.C. § 12112(a). Under the ADA rubric of discrimination, an employer must make reasonable accommodations that allow a disabled individual to perform his or her job, unless that accommodation would cause an undue hardship. Harris v. HW Contracting Co., 102 F.3d 516, 519 (11th Cir. 1996); 42 U.S.C. § 12112 (b)(5)(A). A disability, for the purposes of the ADA, is "(A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). The burden of proof for an ADA claim is based on the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973).
In order to state a claim for discrimination under the ADA, a plaintiff must first prove that he has a disability, as defined by the Act. See, e.g., Gordon v. E.L. Hamm Associates, Inc., 100 F.3d 907, 910 (11th Cir. 1996), cert. denied, 522 U.S. 1030, 118 S.Ct. 630, 139 L. Ed.2d 610 (1997). Merely proving the existence of a physical impairment, without addressing any limitation on major life activities, is not sufficient to prove disability under the Act. Id., at 911. Although the ADA does not explicitly define the term "major life activity, " we are guided by E.E.O.C. regulations. The ADA regulations adopt the definition set forth in the Rehabilitation Act regulations. 34 C.F.R. § 104. Major life activities are defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(I). Under the ADA, a physical impairment does not substantially limit the major life activity of working merely because it precludes the performance of one particular job. 29 C.F.R. § 1630.2(j)(3)(i). Instead, the impairment must significantly restrict "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." Id.
To establish what is termed a prima facie ADA violation, Harville must demonstrate that he is a qualified individual with a disability and was discriminated against because of that disability. Witter v. Delta Air Lines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998). This often occurs when the individual's employer does not reasonably accommodate the disability, unless, as noted above, such an accommodation would impose an undue hardship on the employer. 42 U.S.C. § 12112(b)(5)(A). Under the ADA, the term "reasonable accommodation" may include, inter alia, "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." 42 U.S.C. § 12111 (9)(B).
This list notwithstanding, "[t]he use of the word `reasonable' as an adjective for the word `accommodate' connotes that an employer is not required to accommodate an employee in any manner in which that employee desires." Lewis v. Zilog, Inc., 908 F. Supp. 931, 947 (N.D.Ga. 1995). This is so because the word "reasonable" would be rendered superfluous in the ADA if employers were required in every instance to provide employees "the maximum accommodation or every conceivable accommodation possible." Lewis, 908 F. Supp. at 947; see also Vande Zande v. State of Wis. Dept. of Admin., 851 F. Supp. 353, 360 (W.D.Wis. 1994) ("an employee is entitled only to a reasonable accommodation and not to [a] preferred accommodation"), aff'd, 44 F.3d 538 (7th Cir. 1995). Stated plainly, under the ADA a qualified individual with a disability is "not entitled to the accommodation of her choice, but only to a reasonable accommodation." Lewis, 908 F. Supp. at 948. Moreover, the burden of identifying an accommodation that would allow a qualified individual to perform the job rests with that individual, as does the ultimate burden of persuasion with respect to demonstrating that such an accommodation is reasonable. Willis v. Conopco, 108 F.3d 282, 283 (11th Cir. 1997).
Harville's Discrimination Claim
In his response to Vanity Fair's Motion for Summary Judgment, Harville writes "[t]he Defendant has not presented any evidence that the Plaintiff is not a qualified individual with a disability . . . [and] has not presented any evidence that the Plaintiff can not perform the essential functions of his job with reasonable accommodations." Plaintiff's Response to Defendant's Motion for Summary Judgment, p. 1. Harville's Memorandum, filed in Support of said Response, adds little to the conclusory assertions above, and almost nothing in the way of any substantive offerings to refute Vanity Fair's arguments. In the final three paragraphs of this Memorandum, Harville writes:
I have a history of heart trouble which has and will continue to substantially limit my major life activities such as standing, lifting, walking, etc. . . . I am a qualified individual with a disability within the meaning of . . . [the] ADA . . . To my knowledge, the defendant has not disclosed any expert testimony to disprove that I am not a qualified individual with a disability within the meaning of the ADA.Plaintiff's Memorandum Supporting its Response to Defendant's Motion for Summary Judgment, pp. 5-6.
Aside from the conclusiveness of his assertions, Harville's memorandum is unsatisfactory in an even more glaring way: there is no discussion of, reference or even allusion to the circumstances surrounding his layoff on November 3, 1999, allegedly the main adverse employment action upon which Harville is basing his ADA claims. of course it follows that there is also no discussion or argument attempting to rebut Vanity Fair's position that the admittedly adverse employment action of laying off Harville was taken for legitimate, nondiscriminatory reasons. Apparently unaware that the failure to make such arguments renders his claims meritless, Harville instead spends the majority of his Memorandum describing to the Court the difficulty he has encountered in securing legal representation for his claims. This confusing narrative, detailing as it does the parties' various settlement negotiations, Harville's relationship with his initial attorney, and his unsuccessful attempts to find replacement counsel, add nothing substantive to bolster Harville's ostensible claim that he was mistreated in an employment context as a result of an alleged disability.
Vanity Fair does not dispute that Harville's voluntary resignation after being laid off was in fact an adverse employment action.
Courts do and should show a leniency to pro se litigants not enjoyed by those with the benefit of a legal education. See, e.g., Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990). Yet even in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party, see Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991), or to rewrite an otherwise deficient pleading in order to sustain an action, see Pontier v. City of Clearwater, 881 F. Supp. 1565, 1568 (M.D.Fla. 1995). Thus, while sympathetic to Mr. Harville's pro se status, the Court notes that Harville has been without counsel since October, and has therefore had considerable time to secure replacement counsel. As Vanity Fair's Motion for Summary Judgment was filed nearly three months ago, on December 20th 2000, the Court feels that there is no justification for any further delay in adjudicating this matter. Additionally, now that the Court has denied Harville's Motion to Voluntarily Withdraw his Complaint Without Prejudice, any further postponement of a decision on these claims would be unfair and prejudicial to Vanity Fair.
See the Court's concurrently issued Order of March 15, 2001. As the Order explains in detail, Harville filed his Motion to Voluntarily Withdraw one day after Vanity Fair filed its Motion for Summary Judgment; finding too great a measure of prejudice would attach to Defendant if Harville were to be allowed to retreat without prejudice, the Court denied Harville's Motion.
Turning to the merits of Harville's claims, there is no question that heart disease constitutes a physical impairment under the ADA. 45 C.F.R. pt. 84, App. A., subpart (A)(3) (1997). However, in order to constitute a disability within the meaning of the statute, a physical impairment must "substantially limit one or more of the major life activities of an individual." 42 U.S.C. § 12102(2)(A). Applying this standard, the Court is doubtful that Harville has presented a sufficient quantum of evidence to demonstrate that he has a qualifying disability, as he offers little in the way of showing that his various physical impairments have substantially limited one of his major life activities, i.e. working. Without such a showing, Harville would of course fail to establish the requisite prima facie case of discrimination under the ADA.
The Court need not determine whether Harville had a qualifying disability, however, because it finds that even if he were to establish a prima facie case, he has failed to present sufficient evidence to rebut Vanity Fair's legitimate, non-discriminatory reasons for laying him off. Put another way, assuming arguendo that Harville has demonstrated that he has an ADA-qualifying disability, the Court finds that Vanity Fair has met their burden of showing the absence of any genuine issues of material fact with respect to the required showings that 1) Vanity Fair had legitimate and nondiscriminatory reasons for the adverse employment action taken against Harville and 2) Vanity Fair's proffered reasons are not a pretext for ADA discrimination.
Thus, assuming for present purposes that Harville has established his prima facie case, the Court's factual inquiry must focus on determining whether (1) there were legitimate and nondiscriminatory reasons for the adverse employment action, and (2) if such reasons are shown to the Court, has Harville presented evidence of pretext sufficient to create a question of fact for a jury with respect to the adverse employment action. See Durley v. APAC, Inc., 236 F.3d 651 (11th Cir. 2000). As the facts of this case amply demonstrate, Vanity Fair accommodated Harville on numerous occasions, trying everything from transferring him to various departments (so that he could continue employment with the company) to attempting to devise more comfortable working conditions as a response to Harville's heart troubles and his complaints about chest and leg pains. Vanity Fair was in fact considering alternative ways to accommodate Harville latest request, which was to work while sitting down, when plans were developed for a major lay-off in the strap department (Harville's department) due to a decrease in sales. As a result of this downsizing, Vanity Fair laid off thirteen strap department employees on November 3, 1999, including Harville. Harville has presented no evidence to show that these layoffs of multiple persons in his same department were in any way, shape or form related to his alleged disability or to any discrimination on the part of Vanity Fair. See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ("[A] reason cannot be proved to be `a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason."). Consequently, Vanity Fair is entitled to Summary Judgment on Harville's discrimination claim in all respects.
Harville's Retaliation Claim
On June 14, 1999, Harville filed an E.E.O.C. charge alleging disability discrimination under the ADA. A Dismissal and Notice of Rights was issued on October 5, 1999. On March 6, 2000, Harville filed a charge alleging retaliation. Despite Harville's assertions to the contrary, both his discrimination and retaliation claims are before the Court, because both charges are the subject of the Complaint that is currently before this Court. Harville alleges in Paragraph 27 of his Complaint that Vanity Fair retaliated against him "with a cut in hours and eventual termination." He also claims in his deposition that Vanity Fair retaliated against him by disciplining him because of his attendance (Harville Tr. 190-202). Where a retaliation charge grows out of an earlier charge, exhaustion of remedies is not required. Baker v. Buckeye Cellulose Corp., 856 F.2d 167 (11th Cir. 1988); Gupta v. East Texas State Univ., 654 F.2d 411 (5th Cir. 1981); Sanchez v. Standard Brands, Inc., 431 F.2d 455, 456 (5th Cir. 1970). Since Harville's retaliation claim stems from his earlier charge, both charges are properly before the Court.
To establish a prima facie case of retaliation, the plaintiff must show: (1) that he engaged in statutorily protected expression; (2) that he suffered an adverse employment action; and (3) that there is some causal relationship between the two events. Meeks v. Computer Associates Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994); E.E.O.C. v. Ohio Edison Co., 7 F.3d 541 (6th Cir. 1993); Archuleta v. Colorado Dept. of Institutions, 936 F.2d 483 (10th Cir. 1991). To recover for retaliation, the plaintiff "need not prove the underlying claim of discrimination which led to [his] protest;" however, the plaintiff must have had a reasonable good faith belief that the discrimination existed. Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989). To meet the causal link requirement, the plaintiff "merely has to prove that the protected activity and the negative employment action are not completely unrelated." E.E.O.C. v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993).
The plaintiff must at least establish that the employer was actually aware of the protected expression at the time the employer took adverse employment action against the plaintiff. Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993); Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1524 (11th Cir. 1991). The employer's awareness of the statement may be established by circumstantial evidence. Id. Once the plaintiff establishes his prima facie case, the employer must proffer a legitimate, non-discriminatory reason for the adverse employment action. E.E.O.C. v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993). If the employer offers legitimate reasons for the employment action, the plaintiff must then demonstrate that the employer's proffered explanation is a pretext for retaliation. Meeks, 15 F.3d at 1021; City of Atmore, 996 F.2d at 1163.
Here, it is clear that Harville engaged in statutorily protected expression, as evidenced by his E.E.O.C. complaint filed in June of 1999. Vanity Fair does not dispute that Harville engaged in a statutorily protected activity, does not dispute that it was aware of that activity, and does not dispute that with respect to Harville's layoff, an adverse employment action occurred. Vanity Fair vigorously disputes, however, that an adverse employment action occurred with respect to Harville's discipline for attendance, or that there is any evidence to show either of these allegedly adverse employment actions (the discipline or the layoff) were causally related to Harville's protected activity.
While Harville presents little evidence of any discrimination, the plaintiff "need not prove the underlying claim of discrimination which led to [his] protest." Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989). Taken in a light most favorable to the plaintiff, the evidence shows that Vanity Fair was aware of the protected activity when it disciplined Harville and when it laid him off. Additionally, taken in a light most favorable to Harville, "the protected activity and the negative employment action[s] are not completely unrelated." E.E.O.C. v. Reichhold Chemicals, Inc., 988 F.2d 1564, 1571-72 (11th Cir. 1993). Though Vanity Fair disputes that Harville has established a prima facie case of retaliation concerning either his layoff or his discipline for attendance, the Court will assume for the present purposes that Harville's discipline for attendance did constitute an adverse employment action, and that both of these adverse actions were sufficiently related to Harville's E.E.O.C. filing to warrant a finding that he has met his initial burden of establishing a prima facie case.
Accordingly, the Court turns to Vanity Fair's proffered reasons for the adverse actions. As stated earlier with regard to Harville's discrimination claim, the facts in this case demonstrate that Vanity Fair has met its burden of presenting legitimate, non-discriminatory reasons, both for its discipline of Harville and for his eventual layoff. As with the discrimination claim, Harville has failed to demonstrate that his former employer's proffered explanation is a pretext for retaliation. Meeks, 15 F.3d at 1021; City of Atmore, 996 F.2d at 1163. The repeated warnings given to Harville about his absenteeism, followed by his continued disregard for Vanity Fair's policies, show that the discipline meted out to Harville was both appropriate and justified. As to Harville's eventual layoff, the Court finds Vanity Fair's explanation of its legitimate, non-discriminatory reason for its action so strong that it would rebut completely any inference raised by the plaintiff's prima facie case, assuming arguendo that Harville would even be able to establish such a prima facie case of retaliation. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 596 (11th Cir. 1987).
As concerns both of the allegedly adverse employment actions, and keeping in mind the Court does not decide today whether the attendance discipline was in fact an adverse employment action, Harville's offer of evidence in support of his prima facie case is simply not sufficient to create an issue of fact in light of the strong and substantial evidence of lawful motive presented by the defendant in both instances. As a result, Vanity Fair is entitled to Summary Judgment on Harville's retaliation claims, both as to the discipline meted out and as to his eventual termination.
III. CONCLUSION
For the reasons discussed above, Defendant's Motion for Summary Judgment is GRANTED on Plaintiff's ADA discrimination claim and on Plaintiff's retaliation claim.