The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment [Doc. 29].
In this discrimination action, the plaintiff Kenneth Lee Roe ("Roe") alleges that the defendant Oakmont Resort Condominium Association ("Oakmont") terminated him from his employment in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. ("ADEA"); the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"); the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101, et seq. ("THRA"); and the Tennessee Handicap Act, Tenn. Code Ann. § 8-50-103 ("THA"). [Doc. 22].
It is admitted that Oakmont is an "employer" within the meaning of the various state and federal statutes under which the plaintiff brings this action; that Roe filed a charge with the Tennessee Human Rights Commission; and that he received a right to sue letter from the Equal Employment Opportunity Commission dated August 30, 2005. [Doc. 23]. The subject matter jurisdiction of the Court is not in dispute. [Doc. 40].
After carefully considering the entire record, the Court concludes that there are genuine issues of material fact which preclude the granting of the defendant's motion. Accordingly, for the reasons set forth herein, Defendant's Motion for Summary Judgment [Doc. 56] is DENIED.
As required by Rule 56 of the Federal Rules of Civil Procedure, the Court will recite and consider the relevant facts in the light most favorable to the plaintiff. In doing so, the Court relies on the depositions of the plaintiff Kenneth Roe and several Oakmont employees, and other testimony and exhibits filed with the Court.
The Oakmont Resort property ("Resort") is a timeshare resort in Sevierville, Tennessee, operated by a not-for-profit Tennessee corporation that is owned by the collective body of timeshare owners of each unit at the Resort. Roe was hired to work at Oakmont on October 6, 1988 as a security guard. His supervisors at the time were Carey and Mary Jane Lockman, the general managers of Oakmont. Roe's duties as a security guard included checking doors, checking people in and out, making rounds every fifteen minutes, helping with any problems, shutting down the outdoor pool and area in the indoor pool, and taking emergency calls on behalf of the Resort.
Although Roe's position was characterized as that of a "security guard," Roe was never licensed or bonded with the State of Tennessee to work as such.
For about the first year after he was hired, Roe worked a 10 p.m. to 1 a.m. shift, seven days per week. After the first year and until his schedule was changed in July, 2004, Roe worked from 8 p.m. until 2 a.m., seven days per week. From 1988 until July, 2004, Roe was the only employee at Oakmont who worked in a "security guard" position.
Roe was diagnosed with colon cancer in April 2003. Roe's physician, Dr. Allan M. Grossman, stated that Roe has a "high grade colon carcinoma with vascular invasion and nodal invasion, and is at high risk for recurrent disease." [Roe Dep. Ex. N]. After his diagnosis, Roe began chemotherapy for six months. Roe did not miss a day of work while on chemotherapy. By November, 2003, the cancer appeared to be in remission. Roe told the Lockmans and others at Oakmont that his cancer had gone into remission. Roe started feeling better about two months after the chemotherapy ended and the effects of the chemotherapy wore off. During the time that he worked as a security guard, Roe never asked for an accommodation for a disability.
While they were the general managers of Oakmont, the Lockmans lived on the property and were available to handle emergencies when no other personnel were on duty. In February 2004, the Lockmans left Oakmont, and the on-site general manager position was eliminated. Before the Lockmans left, Mr. Lockman ran an advertisement in a newspaper for additional security guard personnel. An individual responded to the advertisement and complained that Oakmont was operating a security guard service without a license. After reviewing the matter, Oakmont determined that it could not continue to classify Roe's position as "security guard" and therefore combined the security guard position into a "security and maintenance" or "night maintenance" position. Maintenance employees started performing the security duties Roe had handled in his prior security guard position.
David and Linda Lynch replaced the Lockmans as general managers of Oakmont in April, 2004. The Lynches did not live on the property. With the elimination of the on-site general manager position, the duty to handle any emergencies became the responsibility of whoever was working on a particular shift. Subsequently, the Maintenance Department employees' work schedule was changed to a three-shift work schedule: (1) first shift from 8:00 a.m. to 4:30 p.m.; (2) second shift from 4:30 p.m. to 1:00 a.m.; and (3) third shift from 12:00 a.m. to 8:00 a.m. Oakmont began requiring its maintenance employees to work one of these three shifts, five days a week. Maintenance employees had preference over new hires as to which shift they chose to work.
Roe was originally placed on the third shift for maintenance. Roe had liked everything about his prior security guard position. The security guard position was easier than the security/maintenance position, and he did not want to change jobs. There were increased lifting requirements with the security/maintenance position, and it was a dirtier job. Roe testified that the heavy lifting involved in this position bothered him physically and caused internal bleeding. Nevertheless, Roe told David Lynch that he could do the work required of the security/maintenance position. He did not ask for an accommodation for a disability in connection with this new position. Roe did, however, complain about being placed on third shift and asked to take the second shift so that he could spend more time with his family. Oakmont honored Roe's request for the second shift and placed him in the maintenance rotation, second shift, effective July, 2004.
Roe began working the 4:30 p.m. to 1:00 a.m. shift five days per week, beginning in July, 2004. Assistant General Manager Stephine Gregg noted in Roe's 2004 yearly performance evaluation that Roe "had a problem with changing shift schedule due to the standardization process, but seems to be adjusting." Gregg testified that Roe adequately did his job until the events that led to his termination occurred, and that other than noting his problem with the changing shift schedule, she never gave Roe a negative evaluation.
Roe testified that David Lynch knew that Roe had had cancer and repeatedly asked him if could perform the lifting requirements of the maintenance job. In April, 2004, while Roe was helping David Lynch unload a truck, Lynch noticed that Roe had lost a lot of weight and asked Roe what was wrong. Roe told him that he had had cancer for the past year and had just finished chemotherapy. Lynch asked him if he was sure he would be able to do this job, and Roe said that he could. In May or June, 2004, Roe met with Danny Oakley, David Lynch, Linda Lynch. David Lynch told Roe, "I'm going to have to put you on another shift because I can't get anybody to replace you. You're a dinosaur. Nobody will work that kind of hours and that kind of days and that kind of shift." [Roe Dep. at 64].
On July 2 or 3, 2004, David Lynch told Roe that he was being put on a five-day a week 4:30 p.m. to 1:00 a.m. shift, and that this change was being made "because of [sic] I cannot get anybody to replace you on your shift of hours and your kind of hours and seven days a week, because you're a dinosaur and nobody wants to work that."
Also during a meeting in July, 2004, Linda Lynch asked Roe if he was sure he could do this job because of his cancer. After Roe was shifted to the more physically demanding work in maintenance in July, 2004, the Lynches began checking on Roe almost every night, asking him if he was having any problems with his illness and inquiring if Roe was able to do his job. Roe testified that these comments were in the nature of "how you doing tonight Ken," "you feeling alright" and "that kind of thing."
In September, 2004, Roe started feeling his symptoms again. Other than a comment to co-worker Dennis McCarter that he was not feeling good, Roe did not tell anyone at Oakmont that he felt his symptoms coming back. Roe did not complain about his symptoms returning because he was afraid he would have been terminated if the Lynches knew about it. Roe testified that the Lynches had told him "if you can't do the job, there's the road" when he was shifted from security guard to maintenance. Roe did not find out "for sure" that his cancer had returned until January or February, 2006.
Roe was not permitted to work any overtime. Roe testified that Gregg told him that the Lynches had said that they did not want him to work anymore overtime because Roe had cancer. Gregg testified that the policy against unapproved overtime was implemented for all hourly employees at Oakmont. According to Gregg, all hourly employees had to have approval from their immediate supervisor, her or the Lynches before working any overtime. Roe does not know if other employees were told that overtime was ...