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Rogers v. Wal-Mart Stores East

February 26, 2008


The opinion of the court was delivered by: Curtis L. Collier Chief United States District Judge

Chief Judge Curtis L. Collier


Before the Court is defendant Wal-Mart Stores East, L.P.'s ("Defendant's") motion for summary judgment (Court File No. 46). Plaintiff Ida M. Rogers ("Plaintiff") filed a response (Court File No. 50), and Defendant replied to this response (Court File No. 51). The parties have filed all necessary briefs, and this matter is now ripe for decision. For the following reasons the Court will GRANT IN PART and DENY IN PART Defendant's motion for summary judgment (Court File No. 46).


Plaintiff worked for Defendant from April 16, 1999 to May 17, 2004 (Court File No. 50 at 1). On January 10, 2002, Plaintiff was stacking pallets for Defendant when one of the pallets started to fall (Court File No. 50, Ex. 1 "Pl.'s Dep." at 22-23). Plaintiff braced the pallet with her knee to prevent the pallet from falling (id.). After Plaintiff left work for the day, her knee started to swell, and the next day she reported her injury to her supervisor (id.). According to Plaintiff, her supervisor's reply was "get over it and deal with it and go back to work, and they were not going to allow [her] to file a claim." (Id.).

Plaintiff suffered from a swollen joint, pain from her entire leg down to her foot, muscle spasms, and a constant pain in her knee (Pl.'s Dep. at 25). Plaintiff suffered two ruptured discs in her lower back near her sciatic nerve (id. at 27).

In April 2002, Plaintiff underwent her first surgical operation (id at 62). Her surgeon had to surgically realign the kneecap (id. at 24). The record clearly indicates there were subsequent surgical operations, but it is unclear as to how many operations, when they were performed, or of what nature. Albeit the record does reflect a second surgery took place in August 2005 (id. at 25).

Plaintiff was off work for 212 days in 2002 (Court File No. 50 Ex. 3), and only worked 48 days from January 1, 2003 to March 1, 2004 (Court File No. 50 Ex. 4). During these last two years of her employment, Plaintiff alleges she experienced hardship and insults constituting a course of harassment.

Plaintiff was released to return to light duty work in May 2002, and Plaintiff's supervisor Keith Kitchens ("Kitchens") told her he did not want to accommodate her injury and she should "stay home until [she] was ready to come back and earn [her] paycheck." (Id. at 38). Kitchens then assigned Plaintiff to work as a people greeter.

During winter, Kitchens moved Plaintiff close to an exit under an air-conditioning vent, turned the air conditioning on, propped the outside doors open, and told her she better not move from that position (id. at 63-64, 67). When Plaintiff turned the heat on in the break room another employee said if Plaintiff would get off of her rear and "work for a living like the rest of us, you wouldn't be cold." (Id. at 65). When Plaintiff complained to a supervisor the supervisor said she should just get used to it, and as soon as Plaintiff was released with no restrictions the supervisor would "coach [her] out the door." (Id. at 66).

Plaintiff also alleged her supervisor frequently told her she was worthless because of her restrictions (id. at 70). And her employment was not fair when everybody else had to work for a living (id.).

According to Plaintiff, if an employee is injured in a store the other employees are not eligible for a stakeholder's bonus because of the cost of the injury (id at 75). At a stakeholder meeting, the supervisor introduced Plaintiff by saying, "We won't be getting a stakeholder's bonus . . . [b]ecause we've had too many injured workers and each injured worker costs us $50,000. And by the way, I'd like to welcome [Plaintiff] back from workers' comp leave." (Id. at 76).

Eventually, Plaintiff was reassigned to the garden center (id. at 83). Kitchens did not give her a chair with a back, but instead gave her a high stool which did not have a back and did not allow her feet to touch the floor, both accommodations Plaintiff required (id. at 83-84). After Plaintiff objected to the stool the assistant manager brought over a lawn chair (id. at 86). However, later while Plaintiff was on break the assistant manager replaced the chair with the stool before she left for the day (id. at 84). When Plaintiff complained to the remaining supervisor, he put his hands over his ears, started shaking his head, and said, "Don't want to see it. Don't want to hear it. Don't want to know it." (Id. at 85). When Plaintiff persisted, her supervisor said the assistant manager told him Plaintiff was to "sit in the stool and to like it." (id at 87). Having thus reached an impasse, Plaintiff followed the advice of another employee, clocked out, and left to complain to Kitchens the next morning (id. at 88).

Initially, Kitchens refused any accommodation and said Plaintiff could go home, but if she went she "would be fired like everybody else." (Id.). Plaintiff called her husband who called her doctor who called the store (id.). Her doctor told the store they needed to follow her restrictions because otherwise she would damage her knee (id.). After the call, Kitchens went to Plaintiff and said in his opinion she did not need an accommodation (id. at 89). Kitchens then made a spectacle of himself as he stacked metal buckets in front of the stool to a cacophonous effect (id.). His idea, apparently, was he would create a platform high enough so Plaintiff could sit on the stool with her feet resting on the buckets like a floor. He also instructed Plaintiff to lean against a chain link fence to compensate for the lack of a chair back. Plaintiff argues this still did not meet her needs because the chain link fence was too flexible, and the posture Plaintiff had to use to keep her feet on the buckets was uncomfortable (id. at 91-92).

Defendant finally supplied Plaintiff with a chair, but first removed the chair's arms (Pl's Dep. at 95). The arms prevented the back of the chair from going too far backwards (id.). When Plaintiff returned from a day off, she was told someone else broke the chair because they leaned too far backwards and the chair flipped over (id. at 96).

In February 2004, Plaintiff underwent a functional capacity examination ("FCE") at the request of her workers' compensation physician, Dr. Scott Hodges. (Court File No. 50 Ex. 5 at 15). The FCE indicated that Plaintiff's permanent, long-term restrictions included: lifting from hand to shoulder 20 pounds occasionally; lifting from floor to shoulder 15 pounds occasionally; carrying 15 pounds occasionally; pushing less than 40 pounds occasionally; pulling less than 40 pounds occasionally; sitting only 10-15 minutes; standing only 40 minutes; and walking only 10 minutes (id. at 16) Dr. Hodges adopted the FCE restrictions and forwarded them to Defendant (Court File No. 50 Ex. 6 at 35-40).

Plaintiff obtained the opinion of Mark Boatner ("Boatner") a vocational expert. Boatner noted Dr. Hodges assigned restrictions substantially similar to a "light-strength rated job." (Court File No. 46 Ex. 6 at 28). Boatner also noted the FCE indicated Plaintiff should be restricted to sedentary strength positions, and even for those she would need a "sit/stand option." (Id.). Boatner himself ascribed "a 100% vocational disability rating because there are no jobs in the local or national economy in significant numbers that make provision for an employee to recline or lie down." (Id.).

On April 27, 2004, Plaintiff took her return to work notice into Kitchens. Kitchens, on reading the restrictions, said "[she] was worthless to Wal-Mart, and if [she were] a decent human being that [she] would just go ahead and quit." (Pl's Dep. at 136-37).

Following her final return to work in April 2004 (and until her date of termination), Plaintiff's employee identification badge did not work (id. at. 157-58). Thus, she could not clock in like the other employees (id. at 157). Instead, she was required to sign paper documents called time adjustments, which had to be authorized by a member of management (id. at 157). An Assistant Manager informed her that he been instructed by Mr. Kitchens not to key her back into the system as an active employee (id. at 157-58).

The last time that Plaintiff physically worked for Defendant was on the night of May 16, 2004. Following this evening, Plaintiff became dehydrated and was out of work for several days. On May 27, 2004, Plaintiff's husband went to the store to request leave of absence forms for Plaintiff (Court File No. 50 Ex. 7 at 20). He was informed that Plaintiff needed to call Kitchens (id.). When Plaintiff called Kitchens, he told her she was no longer employed at Wal-Mart (Pl's Dep. at 158). When Plaintiff inquired into why she had been fired, Kitchens' first explanation was that she was a "no-call/no-show" for several weeks (id. at 158). When Plaintiff stated that she had in her possession signed time adjustments showing that she had worked, Kitchens became upset (id. at 158-59). He then gave a different reason, and said she had been sleeping on the job (id.).

Plaintiff alleges the conduct of Defendant violated her rights under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 ("ADA"). Plaintiff filed this law suit on April 7, 2006 (Court File No. 3). Plaintiff originally appeared in this action pro se (id.). Defendant answered on May 22, 2006 (Court File No. 8). Plaintiff in her original complaint joined her supervisor and the two employees she claims falsely accused her of sleeping on the job, Kitchens, Tonya Martin, and Angela Moffett. These defendants filed motions to dismiss (Court File Nos. 13, 15, 22). Plaintiff obtained representation, and then Magistrate Judge William B. Mitchell Carter accepted an Amended Complaint filed by Plaintiff, but reserved judgment on whether to allow Plaintiff to add a jury demand (Court File No. 30). Defendant then answered the amended complaint, and District Judge Harry S. Mattice dismissed the defendants' various motions to dismiss Plaintiff's co-workers as moot because the amended complaint did not name them as defendants (Court File No. 32). This Court permitted plaintiff's motion to amend her complaint to include a jury demand (Court File No. 40). Defendant moved for summary judgment on November 30, 2007 (Court File No. 47). Plaintiff filed a response on January 7, 2008 (Court File No. 50), which Defendant replied to on January 14, 2008 (Court File No. 51).


A. Defendant's motion

Defendant argues all claims by Plaintiff should be dismissed for two reasons. First, Defendant argues Plaintiff cannot show she was a qualified individual with a disability as required by the ADA. Defendant argues Plaintiff made representations in her claims for Social Security Disability Insurance ("SSDI") benefits and workers' compensation ...

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