Pending before the Court is Defendant Caney Fork, LLC, d/b/a Caney Fork Fish Camp, d/b/a Caney Fork River Valley Grille’s Motion for Summary Judgment (“Motion”) (Doc. No. 14), filed with a Memorandum in Support (Doc. No. 14-1), Statement of Undisputed Material Facts (Doc. No. 14-2), several supporting documents (Doc. Nos. 14-3 to 14-13), and a subsequently-filed Supplemental Memorandum (Doc. No. 20). Plaintiff Keith R. Saley has filed a Response in Opposition (Doc. No. 21), along with a Response to Defendant’s Statement of Undisputed Material Facts and a Statement of Additional Disputed Material Facts (Doc. No. 22), and several supporting documents (Doc. Nos. 23, 24, & 25-1 to 25-9). Defendant has filed a Reply in support of its Motion (Doc. No. 26), along with a Response to Plaintiffs Statement of Additional Material Facts (Doc. No. 27) and an Exhibit Witness Statement (Doc No. 28-1). Plaintiff subsequently filed several Declarations of Authenticity (Doc. Nos. 29-1 to 29-4), to which Defendant filed an Objection (Doc. No. 30). For the reasons given herein, Defendant’s Motion is DENIED.
I. Background
A. Factual History
Defendant operates restaurants in Nashville, Tennessee and in several other states. Plaintiff worked as general manager of Defendant’s Nashville restaurant from January of 2005 to December 24, 2009. In December of 2009, the Nashville restaurant changed ownership. On November 13, 2009, Marc Barhonovich executed an agreement to assume a large share of the restaurant’s assets and liabilities from Danny York, the original owner. On December 14, 2009, the United States Bankruptcy Court for the Middle District of Tennessee signed an order approving the sale of Defendant’s ownership shares to Mr. Barhonovich.
Mr. Barhonovich began preparing to take over the restaurant sometime between late summer and November of 2009. In doing so, Mr. Barhonovich reviewed the restaurant’s sales figures for 2009. Mr. Barhonovich liked the restaurant’s location and determined that he could improve its profitability. He conducted meetings with key employees, including Wayne Harris, the Director of Operations for the restaurant. Working with Mr. Harris, Mr. Barhonovich developed plans to improve the restaurant by revamping the menu, drawing attention through more concerted marketing efforts, strengthening the reputation of the restaurant, increasing the professionalism of the staff, and upgrading the appearance and cleanliness of the restaurant.
Mr. Barhonovich also evaluated the staff as part of his company-wide review. Mr. Barhonovich wanted to discern if members of the staff would “step up” to meet the level of professionalism he desired. Mr. Harris conducted a survey of the employees to obtain their feedback regarding the positive and negative qualities of the restaurant. Mr. Harris also undertook an effort to observe the restaurant staff and solicit the advice of other managers to determine whether any staffing changes were needed. For instance, he discussed the performance of certain employees with Plaintiff to decide whether to terminate or
Plaintiff reported to Summit Medical Center to undergo an outpatient medical test on the morning of December 15, 2009 and was released later that day. The test was performed on a Tuesday and Plaintiff returned to work on Thursday of the same week. Following the test, Plaintiff was ordered not to lift more than ten pounds for a period of three days and to refrain from drinking alcoholic beverages for a week. Mr. Harris and Mr. Hembroke were aware of Plaintiffs medical test because he requested two days off in advance of the procedure. Plaintiff did not speak to Mr. Barhonovieh about the medical test.
When Plaintiff returned to work, he provided a note to Defendant, which contained information from his doctor explaining that he should lift no more than ten pounds for the next three days, and requested a modification of his responsibilities. During this three-day time period, Plaintiffs restriction was accommodated, with other employees performing lifting duties in his stead. After those three days, Plaintiff resumed all normal work activities.
On the morning of December 24, 2009, Mr. Harris, accompanied by Mr. Hem-broke, called Plaintiff into a back room at the restaurant. Mr. Harris said to Plaintiff, “this restaurant is going in different directions and right now, right now we’re feeling that you’re just not working out for us.” Plaintiff then left the restaurant. Shortly after Plaintiff departed, Mr. Harris held a staff meeting with the employees working that day. He explained to the staff that Plaintiff had been terminated. Angelina Hearn, a server at the restaurant, testified that she was shocked at Plaintiffs termination. Certain employees present at the meeting have testified that, at the meeting, Mr. Harris said Plaintiff was terminated because of a health condition (and possibly for other reasons, though the parties dispute this particular fact). Mr. Harris and other employees present at the meeting, however, have testified that no statements were made concerning Plaintiffs health condition.
On February 17, 2010, Plaintiff filed a pro se Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) against Defendant. On this form, Plaintiff checked the disability discrimination box, stated that he underwent medical examinations, noted that his employers inquired about his health, and declared his belief that he was terminated because management regarded him as disabled. Mr. Harris drafted Defendant’s response to Plaintiffs EEOC charge (“Charge”). In it he stated that Plaintiffs “termination was recommended by his immediate supervisor, Rick Hembroke.” He also stated that “Mr. Hembroke reported to the Director of Operations, Wayne Harris that Plaintiff had a drinking problem and he would disappear for long period
In his deposition testimony, Mr. Harris stated that he did not believe Plaintiff drank on the job because, after reviewing videotape footage from inside the restaurant, he did not discover any evidence to support this allegation. As to the “not following directions” allegation, which appears to be related to Plaintiffs alleged refusal to put up a banner outside of the restaurant, Mr. Harris admitted that Plaintiff “got the banners” but was apprehensive about putting them up because Defendant did not have the required approval from Nashville-Davidson County’s Codes Department to do so. Mr. Harris also testified that he worked in the restaurant business his entire adult life and wrote notices of underperformance or insubordination for employees in the past, but never wrote a notice for Plaintiff before terminating him.
The EEOC conducted an investigation into Plaintiffs claims of discrimination. Following its investigation, the Commission issued a Determination finding cause to believe that Defendant violated the American with Disabilities Act as Amended (ADAAA). The EEOC stated that Defendant “provided no evidence to support its claim that [Plaintiff] was discharged because of performance issues and witnesses deny that [Plaintiff] had any performance issues.”
B. Procedural History
Plaintiff initiated this lawsuit on August 29, 2011. (Doc. No. 1.) Plaintiff brings two claims against Defendant under the ADAAA, for disability discrimination and retaliation, and seeks back pay and benefits, front pay and benefits, compensatory damages, punitive damages, and reasonable fees and costs. (Id.)
Defendant filed the instant Motion on May 5, 2012 (Doc. No. 14), accompanied by a Memorandum in Support (Doc. No. 14-1), Statement of Undisputed Material Facts (Doc. No. 14-2), and several supporting documents (Doc. Nos. 14-3 to 14-13). On June 8, 2012, Defendant filed a Supplemental Memorandum. (Doc. No. 20.) On July 2, 2012, Plaintiff filed a Response in Opposition (Doc. No. 21), along with a Response to Defendant’s Statement of Undisputed Material Facts and Statement of Additional Disputed Material Facts (Doc. No. 22) and several supporting documents (Doc. Nos. 23, 24, & 25-1 to 25-9). On July 27, 2012, Defendant filed a Reply in support of its Motion (Doc. No. 26) and Response to Plaintiffs Statement of Additional Material Facts (Doc. No. 27), along with an Exhibit Witness Statement (Doc No. 28-1). On August 2, 2012, Plaintiff filed several Declarations of Authenticity, all of which relate to several exhibits Plaintiff had previously filed with the Court (Doc. Nos. 29-1 to 29-4), to which Defendant filed an Objection on August 3, 2012 (Doc. No. 30).
II. Preliminary Issues
Before proceeding to the merits of Plaintiffs discrimination and retaliation claims, the Court must address two preliminary issues raised by Defendant. First, Defendant argues that the Court lacks subject matter jurisdiction over Plaintiffs ADAAA claims. Second, Defendant argues that several pieces of evidence cited by Plaintiff to establish genuine disputes of material fact are inadmissible, and should therefore be disregarded in the summary judgment analysis. The Court addresses these issues in the above order.
Defendant first contends that the Court does not possess subject matter jurisdiction over the disability claim because Plaintiff did not specifically state the name or nature of the medical condition for which he was allegedly regarded as disabled. (Doc. No. 14-1 at 14; Doc. No. 14-13 at 7.) Similarly, Defendant argues that the Court does not possess subject matter jurisdiction over the retaliation claim because Plaintiff did not check the retaliation box or otherwise mention his request for a reasonable accommodation in his EEOC Charge. (Doc. No. 14-1 at 24-25; Doc. No. 14-13 at 7.)
Federal courts do not possess subject matter jurisdiction over ADAAA claims “unless the claimant explicitly files the claim in an EEOC charge or the claim can reasonably be expected to grow out of the EEOC charge.” Jones v. Sumser Retirement Vill,
Here, Plaintiff, undisputedly proceeding pro se (Doc. No. 27 at 8), checked the box for disability discrimination on his EEOC Charge, noted that he underwent several medical examinations about which management inquired, and stated his belief that he was terminated for being regarded as disabled (Doc. No. 14-13 at 7). Therefore, as to the disability claim, the Court possesses subject matter jurisdiction because Plaintiff explicitly stated his intent to pursue a disability claim in his charge. Additionally, the Court finds that requiring an EEOC claimant to list his specific medical condition in the charge would be inconsistent with the broader purpose of the ADAAA, which is to protect employees from improper disability-related inquiries. See 42 U.S.C. § 12112(d)(2)(A). In sum, the Court concludes that there is simply no requirement that a plaintiff must specifically describe his actual or perceived medical ailments in order for a district court to exercise subject matter jurisdiction over an ADAAA claim.
The Court also possesses subject matter jurisdiction over the retaliation claim. Defendant is correct that, under normal circumstances, “the failure to check the appropriate box on an EEOC charge will deprive a court of jurisdiction to hear a claim.” Duggins v. Steak ’N Shake,
B. Evidentiary Issues
Second, Defendant contends that three pieces of evidence cited by Plaintiff to establish genuine disputes of material fact are inadmissible, and should therefore be disregarded in the summary judgment analysis. (Doc. No. 26 at 3-4, 12, 18.) In particular, Defendant objects to the admissibility of Mr. Hembroke’s statements regarding the reasons for terminating Plaintiff, as recorded by an EEOC investigator (Doc. No. 25-4 at 42-43), Plaintiffs statements contained in his deposition recounting his hemochromatosis diagnosis (Doc. No. 25-1 at 140-45), and Plaintiffs single-page medical record describing his iron overload diagnosis (Doc. No. 25-8). The Court considers these arguments in the aforementioned order.
First, Defendant argues that Mr. Hembroke’s statements to EEOC investigators are inadmissible hearsay.
Turning to the second objection, Defendant argues that Plaintiffs own statements recounting his hemochromatosis diagnosis are inadmissible hearsay not subject to an exception. (Doc. No. 26 at 3.) Statements made by a patient “regarding medical opinions and diagnoses made by doctors who have examined a patient are not admissible.” Holt v. Olmsted Twp. Bd. of Trs.,
The Court notes, though, that Plaintiffs testimony concerning his physical condition and treatments is admissible pursuant to Federal Rule of Evidence 701, which allows lay opinion testimony regarding one’s physical state based on personal knowledge. As the individual personally suffering from his condition, “Plaintiff has personal knowledge of ... [his] physical condition and its symptoms.” Id. at 820. As such, the Court finds that Plaintiffs testimony regarding his physical condition and treatments falls under this exception to hearsay rule and is admissible for purposes of the pending Motion.
As to the third evidentiary objection, Defendant correctly states that Plaintiffs single page medical record is hearsay. (Doc. No. 26 at 3-4.) However, the Sixth Circuit has held that, under Federal Rule of Evidence 803(6), “medical records can qualify for the business record exception to the rule against hearsay.” Norton v. Colyer,
(A) the record was made at or near the time by-or from information transmitted by — someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
Fed.R.Evid. 803(6). The Court finds that the single-page medical record — accompanied by the declarations filed by Plaintiff (Doc. Nos. 29-1 to 29-3) — satisfies these requirements and therefore falls within the business record exception to the hearsay rule.
Defendant also argues that Plaintiffs medical record has not been authenticated. (Doc. No. 26 at 3.) Federal Rule of Evidence 901 makes authentication a condition precedent to admissibility. In its Response, Plaintiff did not include an affidavit or declaration establishing the authenticity of the document. However, on August 2, 2012, Plaintiff filed several declarations authenticating Plaintiffs medical
III. Defendant’s Motion for Summary Judgment
A. Legal Standard
Summary judgment is rendered when “there is no genuine dispute as to any material fact and ... the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party must demonstrate that the non-moving party has failed to establish a necessary element of that party’s claim. Celotex Corp. v. Catrett,
The non-moving party may not rest solely on the allegations in the complaint, but must delineate specific evidence that shows there is a genuine dispute of material fact for trial. See id. at 324,
All reasonable inferences are to be drawn in favor of the non-moving party and the evidence of the non-movant is to be believed. Anderson,
B. Discrimination Claim
The Court now turns to the merits of the summary judgment motion. The ADAAA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). Under the ADAAA, a plaintiff may establish disability discrimination by showing that: (1) he is disabled within the meaning of the statute; (2) he is otherwise qualified to perform the essential functions of the job he held or desired, with or without reasonable accommodation; and (3) he suffered an adverse employment action because of a disability. Henderson v. Ardco, Inc.,
1. Disability
“The term ‘disability’ means, with respect to an individual- — (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1). An individual is “regarded as having such an impairment” if “the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” Id. § 12102(3)(A). Whether an individual’s impairment “substantially limits” a major life activity is “not relevant” to coverage under the “regarded as” prong. 29 C.F.R. § 1630.2(j)(2). Importantly, the regulations implementing the ADAAA, consistent with Congress’s broad purpose to liberalize the ADA, broadly define “physical or mental impairment” as “[a]ny physiological disorder or condition ... affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, [or] endocrine.” Id. § 1630.2(h)(1). Therefore, the relevant inquiry for establishing a disability under the third prong is an examination of whether Defendant regarded Plaintiff as possessing one of the listed impairments.
Defendant makes several arguments as to why Plaintiff has not produced sufficient evidence to create a genuine dispute of material fact as to whether Plaintiff qualified as disabled under the “regarded as”
First, Defendant claims Plaintiff could not have been regarded as disabled because Mr. Barhonovich testified that he made the “ultimate decision” regarding Plaintiffs termination, and he had no knowledge of Plaintiffs impairment. (Doc. No. 14-4 at 45, 88-89.) Even accepting this assertion as fact, it has no bearing on Defendant’s ability to regard Plaintiff as disabled. Mr. Barhonovich testified that his “decision to terminate ... was based upon the input I received from Mr. Harris.” (Id. at 121-22.) Under the “cat’s paw” theory of liability, Defendant could still be liable if discriminatory intent influenced Mr. Harris’s input to Mr. Barhonovich. See Cobbins v. Tenn. Dep’t of Transp.,
Second, Defendant claims that Plaintiffs only impairment was a liver biopsy, which Defendant asserts is not an impairment under the ADAAA. (Doc. No. 14-1 at 14.) Plaintiff has produced a medical record confirming his diagnosis of “iron overload” contained in the blood, also known as hemochromatosis. (Doc. No. 25-8 at 1.) The medical record establishes that Plaintiffs medical condition is a “disorder[] of iron metabolism,” a life-threatening impairment which undoubtedly “affects one or more body systems, such as ... [the] hemic
Third, Defendant asserts that Plaintiff does not qualify as disabled because “high iron levels in the blood is [sic] not disabling for [Plaintiff] as it causes no symptoms.” (Doc. No. 14-1 at 15.)
Fourth, Defendant contends that Plaintiff does not qualify as disabled because his perceived impairment is “transitory and minor.” (Doc. No. 14-1 at 17.) Protection under the ADAAA’s “regarded as” prong only extends to an “actual or perceived impairment that is not both transitory and minor.” 29 C.F.R. § 1630.2(e)(2)(iii). A transitory impairment is “defined as lasting or expected to last six months or less,” id. § 1630.15(f), while a minor impairment includes “common ailments like the cold or flu,” id. § 1630.2(i), App. (2011) (citing H.R.Rep. No. 110-730, pt. 2, at 18 (2008)). The relevant inquiry is whether the actual or perceived impairment is objectively “transitory and minor,” not whether the employer subjectively believed the impairment to be transitory and minor. Id. “For example, an employer who terminates an employee whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the employee’s impairment was transitory and minor, since bipolar disorder is not objectively transitory and minor.” Id. The regulations further provide that:
[a] covered entity may not defeat “regarded as” coverage of an individual simply by demonstrating that it subjectively believed the impairment was transitory and minor; rather, the covered entity must demonstrate that the impairment is (in the case of an actual impairment) or would be (in the case of a perceived impairment) both transitory and minor.
Id. § 1630.15(f).
Plaintiff has produced medical evidence stating that he actually suffers from iron overload, or hemochromatosis (Doc. No. 25-8), which the Court finds to be distinguishable from a minor ailment like the cold or flu. Hemochromatosis is an acute disease requiring regular phlebotomy treatments, for which Plaintiff has had to seek the care of hematologists. (Doc. No. 25-2 at 140-41, 142-43, 163, 233-34.) Additionally, Plaintiff has produced evidence showing that his impairment is not transitory. To combat hemochromatosis — an incurable, lifelong, and permanent ailment— Plaintiff has received phlebotomy treatments for more than two years (Doc. No. 25-2 at 140; Doc. No. 25-8), far longer than the six-month period required to be deemed not transitory, 29 C.F.R. § 1630.2(e) (2) (iii). Moreover, even if
Defendant’s repeated attempts to analogize LaPier v. Prince George’s County, No. 10-CV-2851 AW,
Finally, Defendant contends that it lacked sufficient knowledge regarding Plaintiffs actual or perceived impairment to regard him as disabled. (Doc. No. 14-1 at 20-21.) Defendant argues that, according to the deposition testimony of Mr. Harris, only Mr. Harris possessed any knowledge about Plaintiffs medical condition, and that this knowledge was very limited. (Doc. No. 14-6 at 88-89.) Mr. Harris testified that Plaintiff never informed him that he underwent a liver biopsy or discussed a diagnosis of elevated blood-iron levels with him. (Id. at 137-45.) Additionally, Defendant argues, Mr. Harris could not have known about any doctor’s visits preceding the biopsy because Plaintiff only scheduled them during his days off. (Doc. No. 25-1 at 149.) Furthermore, Defendant argues that the only written documentation Plaintiff provided to Defendant did not include specifics about Plaintiffs health condition. (Id. at 177-78.)
Plaintiff points to specific evidence in the record to show that Defendant had knowledge of Plaintiffs actual or perceived disability. (Doc. No. 21 at 13.) Plaintiff testified that he informed Mr. Hembroke and Mr. Harris about his abnormal blood-iron levels and the potential for his condition to “do damage to the organs.” (Doc. No. 25-1 at 140411, 158-59, 160, 164.) Plaintiff purportedly advised Mr. Harris and Mr. Hembroke that that “a normal person’s [blood-iron] level is around 150, and they found me as high as 1,800, which is a big difference.” (Id. at 156.) Plaintiff testified that he told both Mr. Hembroke and Mr. Harris that he was diagnosed with “iron overload” and that his body “cannot give up iron like a normal person.” (Id. at 172.) Additionally, Plaintiff testified that he discussed his liver biopsy with Mr. Harris (id. at 158-59, 164), along with the extent of his medical restrictions after the procedure (id. at 160). Mr. Harris asked
Given this conflicting testimony about whether Defendant regarded Plaintiff as disabled, the Court finds that there is a genuine dispute of material fact as to whether the disability prong of the ADAAA is satisfied. Resolving whether Plaintiff was regarded as disabled would entail determinations of witness credibility, which is not the role of a judge on a motion for summary judgment. Anderson,
2. But-for Causation
To prevail on an ADAAA discrimination claim, a plaintiff must prove that he or she suffered an adverse employment action “because of’ a disability. 42 U.S.C. § 12112(b)(1); see also Henderson,
Defendant contends that, for several reasons, Plaintiff cannot establish a genuine dispute of material fact regarding causation because Plaintiffs termination would have transpired the same way, even in the absence of his disability. (Doc. No. 26 at 10-12.) First, Defendant argues that Mr. Barhonovich terminated Plaintiff because the restaurant needed fresh ideas to improve the business. (Doc. No. 25-5 at 75-79.) Similarly, Defendant argues that Mr. Barhonovich sought to replace Plaintiff because the restaurant was struggling financially, and he wanted to terminate employees responsible for the low profitability. (Id. at 77-79.) Furthermore, Defendant’s vendors were operating only “cash on delivery” due to business illiquidity. (Doc. No. 25-1 at 133-135; Doc. No. 25-3 at 74-75.) Defendant also asserts that Plaintiff was terminated due to his generally poor performance as a manager. Mr. Barhonovich testified that the subpar sales, atmosphere among the staff, cleanli
By contrast, Plaintiff has produced evidence of discussions with his employers about his medical condition and their questions about his medical condition, as discussed above. Plaintiff has also produced the testimony of fellow employees stating that he was an excellent manager. (Doc. No. 23 ¶ 3; Doc. No. 24 ¶¶ 3, 5; Doc. No. 25-7 at 11.) Mr. Hembroke’s written testimony states that he believed Plaintiff was a good manager. (Doc. No. 25-4 at 42-43.) Additionally, Plaintiff has produced direct evidence of statements made by his employers to establish that disability discrimination played a role in the termination decision. Specifically, Heidi Hanna, a server and host for Defendant, testified that on the day Mr. Harris discharged Plaintiff, Mr. Harris held a meeting with other employees and announced to them that “he had terminated [Plaintiffs] employment because [Plaintiff] was no longer able to meet the physical requirements of the job or work the necessary hours due to his health problems.” (Doc. No. 23 ¶ 4.) Angelina Hearn, a bartender for Defendant, testified that at the same meeting, Mr. Harris “stated that [Plaintiff] was no longer able to do the job because of his health.” (Doc. No. 24 ¶ 4.) Melissa Pyrtle, a server for Defendant, testified that Mr. Harris “said that [Plaintiff] was no longer going to be with us, because his health was not good and he couldn’t perform his duties to their — to the best of his abilities because he was in bad health.” (Doc. No. 25-7 at 17-18.) Defendant claims that another portion of Ms. Hearn’s Declaration actually supports its argument that disability was not a but-for cause of discrimination because Mr. Harris mentioned “other problems within the store,” in addition to health, as the reasons for Plaintiffs termination. (Doc. No. 26 at 14 (citing Doc. No. 24 ¶ 4).)
Ultimately, evaluating this conflicting testimony to determine whether Plaintiff would have still been terminated even in the absence of his disability requires credibility determinations, the weighing of evidence, and the drawing of inferences. On a motion for summary judgment, these are “jury functions, not those of a judge.” Anderson,
C. Retaliation Claim
As an initial matter, Defendant argues that Plaintiffs retaliation claim is barred because only plaintiffs proceeding under the first two disability prongs may pursue a retaliation claim, whereas a plaintiff proceeding under the “regarded as” prong may not pursue such a claim. (Doc. No. 14-1 at 22.) Defendant asserts that the statutory definition of “reasonable accommodation” mandates this outcome. (Id.) The relevant language from the regulations implementing the ADAAA states:
A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the “actual disability” prong (paragraph (g)(1)® of this section), or “record of’ prong (paragraph (g)(l)(ii) of this section), but is not required to provide a reasonable accommodation to an individual who meets the definition of disability solely under the “regarded as” prong (paragraph (g)(l)(iii) of this section).
The Court now turns to the merits of the retaliation claim. There are two methods by which a plaintiff can prove retaliation: direct evidence or indirect evidence.
1. Prima Facie Case
Defendant argues that Plaintiff fails to establish two elements of the prima facie retaliation claim: (1) that he was engaged in protected activity, and (2) a causal connection between the protected activity and the adverse employment action. (Doc. No. 14-1 at 22-24.) The Court considers these elements in turn.
Defendant contends that Plaintiffs request for a three-day lifting restriction, as directed by his treating physician, does not constitute a good-faith request because Plaintiff believed that his hemochromatosis was not disabling, but only temporary. (Id. at 22.) “The showing of a good-faith request for reasonable accommodations” is a “protected act” for purposes of an ADAAA retaliation claim. Baker,
Next, Defendant argues that Plaintiff has failed to establish a causal connection between his lifting restriction request and his termination. To establish a causal connection, a plaintiff must produce “sufficient evidence from which an inference could be drawn that the adverse action would not have been taken” had the plaintiff not engaged in the protected activity. Nguyen v. City of Cleveland,
2. Legitimate Reasons for Termination and Pretext
Relying on the testimony of Mr. Harris (Doc. No. 14-1 at 25-28; Doc. No. 26 at 15-17), Defendant presents evidence of several legitimate, non-discriminatory reasons for Plaintiffs adverse employment action, including: Plaintiffs disappearance for many hours during the workday (Doc. No. 14-3 at 225, 231); failure to meet “target” labor standards by refusing to
Initially, the Court notes that, in this instance, Plaintiff need not discredit every legitimate reason proffered by Defendant. Defendant has not argued that each factor alone would have independently resulted in Plaintiffs termination. (See Doc. No. 26 at 15.) Therefore, Plaintiff “need not show that all of the factors ... are false but rather, only that some of the factors are false and a mere pretext for discrimination.” Asmo v. Keane, Inc.,
Plaintiff points to particular evidence to establish that Defendant’s justifications are inconsistent and have shifted over time. “An employer’s changing rationale for making an adverse employment decision can be evidence of pretext.” Thurman v. Yellow Freight Sys.,
In contrast to these initial statements to EEOC investigators and the testimony of Plaintiff and Mr. Hembroke, Mr. Harris testified in his deposition that the decision to terminate Plaintiff was “solely [made by] Wayne Harris.” (Doc. No. 25-3 at 98-99.) Mr. Harris further testified that he “didn’t know what [Mr. Hembroke’s] role was.” (Id. at 130.) Similarly, Mr. Barhonovich testified that he didn’t know Mr. Hembroke’s role in the restaurant, and, despite “hanging around the restaurant” and attending a meeting with managerial agents, he “wasn’t part of my group of employees.” (Doc. No. 25-5 at 45-49.) Moreover, Mr. Barhonovich testified that he, not Mr. Harris, “made the determination to get rid of [Plaintiff].” (Id. at 80.) In light of these inconsistencies regarding the reasons for Plaintiffs termination, a reasonable juror could conclude that, over time, Defendant attempted to distance itself from the statements Mr. Hembroke made to EEOC investigators regarding the reasons for Plaintiffs termination.
Additionally, Plaintiff argues that Defendant has abandoned — and then offered new theories for — Plaintiffs termination as this litigation has progressed. (Doc. No. 21 at 20-22.) In his response to the EEOC filing, Mr. Harris, before stating any other reasons for Plaintiffs discharge, asserted that he terminated Plaintiff because Mr. Hembroke informed him that Plaintiff “had a drinking problem and he would disappear for long period [sic] during the day.” (Doc. No. 25-4 at 55.) However, Mr. Harris testified in his deposition that “[t]here was a suspicion, but I could not prove it. And I looked into it and looked at the videos, and there was no evidence of him drinking on the job.” (Doc. No. 25-3 at 216.) A reasonable juror could infer that Defendant’s justifications are pretextual because it relied on an allegation of drinking that lacks any factual basis. Also, inadequate restaurant cleanliness was not cited as a reason for Plaintiffs termination in Defendant’s initial response to the EEOC. (See Doc. No. 25-4 at 54-55.) Later, however, both Mr. Harris and Mr. Barhonovich testified that insufficient cleanliness was a reason for termination. (Doc. 25-3 at 111; Doc. No. 25-5 at 48.) Similarly, lackluster sales figures were not cited as a legitimate reason in the EEOC investigation, but were later offered as a cause of termination by Mr. Barhonovich. (Doc. No. 25-5 at 81.) A reasonable juror could infer that these shifting reasons for termination connote pretext.
Plaintiff presents evidence to show that resistance to change is a pretextual reason for termination. (Doc. No. 21 at 7, 23.) Defendant does not dispute that Plaintiffs resistance to placing a large banner outside the restaurant was motivated by a desire to avoid violating Metro Government of Nashville and Davidson County, Tennessee Ordinance 6.04.010. (Doc. No. 25-3 at 107.) The ordinance prohibits:
affixing] in any manner any sign, placard, poster, card, banner or other indicia of the interests of any person, group or organization on any post or pole, including, but not limited to, light and telephone poles, on any street, sidewalk, thoroughfare or public right-of-way within the jurisdiction of the metropolitan government.
Davidson Cnty., Tennessee, Municipal Code § 6.04.010 (2011). When Plaintiff objected to violating the ordinance, Mr. Harris said, “[i]f we get a ticket, we’ll deal with that issue when it comes.” (Doc. No. 25-3 at 108.) The Court finds that Plaintiff has produced sufficient evidence to rebut this proffered reason for termination because directing an employee to engage in unlawful activity does not constitute a legitimate reason for an adverse employment action.
Plaintiff also offers evidence to establish that several of Defendant’s justifications have no basis in fact. (Doc. No. 21 at 23.) For instance, with respect to the contention that Plaintiff failed to meet labor targets, Mr. Harris testified that Defendant never quantified a labor target and that no
Additionally, Plaintiff points to specific evidence in the record to establish that Defendant’s legitimate reasons are pretextual due to its failure to terminate employees engaging in similar or worse alleged conduct. (Doc. No. 21 at 23-24.) A plaintiff can show pretext by proffering “evidence that other employees ... were not fired even though they engaged in substantially identical conduct to that which the employer contends motivated its discharge of the plaintiff.” Manzer,
Furthermore, Defendant’s failure to locate Plaintiffs employment file is troublesome to the Court, and weighs against the proffered reasons for termination. Mr. Harris testified, and Defendant does not dispute, that Plaintiffs employment file has not been found. When speaking to EEOC investigators, Mr. Harris stated that he didn’t “even know if [Plaintiff] had a [personnel] file.” (Doc. No. 25-3 at 56.) Mr. Harris testified that, during the summer of 2009, all personnel files in the Nashville restaurant were moved to one of Defendant’s restaurants in Santa Fe, New Mexico for record-keeping consolidation purposes. (Doc. No. 24-3 at 82-84.) Defendants have been unable to find any of these stored personnel files. (Id. at 86-87.) Subsequently, Mr. Harris testified that he began keeping a “temporary personnel” file in which he collectively stored the records of all employees. (Id. at 179-80.) However, Mr. Harris testified that, after Plaintiffs termination, he attempted
Keeping well-organized, secure, and complete employment files makes the resolution of retaliation and discrimination claims simpler and more efficient due to the availability of documentary evidence. Losing employment files is troubling because employees are not afforded the opportunity to use documentary evidence to discredit the legitimate, nondiscriminatory explanations offered by employers. A reasonable juror could infer that the loss of Plaintiffs employment file around the time he filed an EEOC claim easts doubt on the veracity of Defendant’s explanations for the termination. Indeed, Defendant has lost both Plaintiffs individual personnel file and the temporary, collective personnel file. Because the Court must draw all reasonable inferences against the moving party, the Court finds that Defendant’s inability to locate both employment files adds weight to Plaintiffs arguments rebutting Defendant’s legitimate, non-discriminatory reasons for his termination.
For the above reasons, the Court finds that Plaintiff has presented sufficient evidence to rebut Defendant’s legitimate, non-discriminatory justifications for termination. Accordingly, Defendant’s Motion is DENIED insofar as Defendant has moved for summary judgment on Plaintiffs disability claim.
D. Punitive Damages
Lastly, Defendant has moved for summary judgment on the issue of punitive damages. An ADAAA claimant can recover punitive damages by “demonstratfing] that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(l). “The terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s knowledge that it may be acting in violation of federal law, not its awareness that it is engaging in discrimination.” Kolstad v. Am. Dental Ass’n,
Plaintiff has offered evidence of Mr. Harris’s experience in the human resources field to establish that Defendant likely knew it may have been acting in violation of federal law. Mr. Harris worked as vice-president of employee training for Captain D’s (where he advised workers about topics such as employment law), served as director of human resources at Mr. York’s Santa Fe restaurants (where he handled an EEOC claim in 2009), drafted an attempted release of claims for Plaintiff, represented Defendant before the EEOC, drafted the response to Plaintiffs Charge of Discrimination, and drafted an employee handbook and progressive discipline policy for Defendant. (Doc. No. 24-4 at 1-1, 17-18; Doc. No. 25-3 at 17-18, 20, 46-47, 93-94, 115-18, 121-
Moreover, Defendant argues that punitive damages are inappropriate in this case because the ADAAA, enacted on September 17, 2008, created an underlying theory of discrimination that is novel or otherwise poorly recognized. (Doc. No. 14-1 at 30.) However, the federal prohibition against discrimination and retaliation on the basis of disability is well-settled law and the “regarded as” prong existed before the 2008 amendments. It is true that the 2008 amendments expanded the scope of the “regarded as” prong, but the statute’s terms are clear and were publicly available for over one year prior to Plaintiffs termination. One year is well within the period of time during which human resources departments can and should obtain knowledge about major legislative enactments. In any case, a more detailed inquiry into Defendant’s state of mind and knowledge of the ADAAA can occur at trial. For the purposes of Defendant’s Motion, however, Plaintiff has shown enough evidence to create a genuine dispute of material fact as to whether Defendant “discriminate[d] in the face of a perceived risk that its actions will violate federal law.” Kolstad,
IV. Conclusion
In light of the above analysis, Defendant’s Motion is DENIED.
It is so ORDERED.
Notes
. Facts in this section are undisputed and taken from Plaintiffs Response to Defendant’s Concise Statement of Undisputed Material Facts (Doc. No. 22) and Defendant’s Response to Plaintiffs Statement of Additional Material Facts (Doc. No. 27), unless otherwise noted.
. The parties used two different spellings— "Hembrook” and "Hembroke” — to refer to this individual in their filings. For the purposes of consistency in the present Order, the Court will use the spelling "Hembroke.”
. On August 2, 2012, Plaintiff submitted a declaration authenticating the EEOC investigation file. (Doc. No. 29-4.)
. To the extent that Defendant’s Objection restates its substantive arguments regarding Plaintiff's disability (Doc. No. 30 at 1-2), the Court resolves those issues in its analysis of Defendant's Motion.
. “Of, relating to, or produced by the blood or the circulation of the blood.” Hemic, Merriam-Webster, http://www.merriam-webster. conVmedical/hemic (last visited July 24, 2012).
. Defendant's characterization of the record
. While the McDonnell Douglas/Burdine burden-shifting framework is appropriate in cases involving indirect evidence of discrimination, and the parties themselves have both applied the framework, in this case there also exists direct evidence of retaliation. “[D]irect evidence is that evidence which, if believed, requires the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp.,
. In his deposition, Mr. Harris testified that he knew Mr. Hembroke was being paid cash under the table in December of 2Q09. (Doc. No. 25-3 at 73-74.)
. In his deposition, Mr. Harris appeared to contradict his own testimony regarding the time during which Ms. Schela managed the restaurant: "I'm only aware of one health inspection when Vicki was there, and that was in January or February [of 2010].” (Doc. No. 25-3 at 111.) Later, during questioning from Plaintiffs counsel about the August 6, 2010 health inspection report, Mr. Harris testified that, “at that time, Vicki Sheila was not an employee either, I don't believe.” (Id. at 199.) Drawing all legitimate inferences against Defendant, the Court, for purposes of this Motion, assumes Vicki Sheila was the manager at the time of the August 6, 2010 health report.
. Defendant's argument that punitive damages are unavailable because the case at bar does not involve the hallmark “egregious conduct” of punitive damages cases (Doc. No. 14-1 at 30) misses the mark. Egregious conduct is not required. Even under an "egregious conduct” standard, a jury question arguably exists as to whether Defendant committed such egregious conduct by terminating Plaintiff on Christmas Eve and allegedly announcing to a room full of employees that Plaintiff could not work due to health problems.