United States District Court, M.D. Tennessee
DONALD R. LOVELL, Plaintiff,
CHAMPION CAR WASH, LLC, and TIM JONES, individually, Defendants
For Donald R. Lovell, Plaintiff: Douglas B. Janney, III, Nashville, TN.
For Champion Car Wash, LLC, Tim Jones, Defendants: Richard James Braun, LEAD ATTORNEY, Braun & Associates, PLLC, Nashville, TN.
For Michael D. Ponce Associates, Interested Party: Michael D. Ponce, Michael D. Ponce & Associates, Goodlettsville, TN.
KEVIN H. SHARP, UNITED STATES DISTRICT JUDGE.
Plaintiff Donald R. Lovell sued Defendants Champion Car Wash, LLC and Tim Jones, claiming that he was terminated from employment in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Tennessee Disability Act, Tenn. Code Ann. § 8-50-103, and the Tennessee Human Rights Act, Tenn. Code Ann. § 4-21-101 et seq. He also claims that he was retaliated against for engaging in protected activity.
Pending before the Court are fully briefed Cross-Motions for Summary Judgment (Docket Nos. 34 & 37). For the reasons that follow, the Court will grant summary judgment in Plaintiff's favor on his disability discrimination claim under the ADA, but deny the remainder of the summary judgment motions.
I. FACTUAL BACKGROUND
Champion operates five car washes in the Nashville and Gallatin, Tennessee area. It is owned by Tim Jones, who also serves as its President. Bennie Lay is the Operations Manager.
All five car washes have two shifts. The morning shift runs from 7:30 a.m. to 1:00 or 2:00 p.m., and the evening shift runs from 1:00 or 2:00 p.m. to 8:00 p.m.
Plaintiff began working for Champion in October 2007, having previously worked as a manager at National Car Wash, which was owned by Jones' father. At the time of his discharge on June 19, 2011, Jones worked as an evening shift site attendant
at the Champion car wash located at 6303 Charlotte Pike. That facility has no air conditioning.
In early June 2011, Plaintiff requested a transfer to an available morning shift job at Defendants' Bellevue location, which has air conditioning in the " dog wash bay." Plaintiff claims that the request was made as a reasonable accommodation for his medical conditions, but Defendants assert that the request was made solely because Plaintiff wanted to work the first shift.
Jones denied Lovell's request for the morning shift job at Bellevue on June 10, 2011. That same day, Plaintiff was given a " Constructive Advice Form," which counseled Plaintiff about being rude to customers.
Page Drake, a non-disabled, less senior employee was given the morning shift job at the Bellevue location. In his deposition, Jones conceded that he was concerned about Plaintiff being physically able to do the job because that position is more physically demanding, and Plaintiff did not perform well when he had worked at that location in the past.
Jones was aware that Lovell has had a heart condition his entire adult life, and that he had multiple surgeries on his hip and total hip replacement surgery during his employment with Defendant. In his deposition, Jones testified:
I know that he had when he was 18 he had a problem with a staph infection getting in his heart and he had to have a valve replaced. And I know he's been on Coumadin and other blood thinners to keep his blood thin. And I know that his hip condition flared up on him in 2009, and he had to have that hip replaced. Upon his last surgery that he had in December of 2010, I know that he developed some heart problems while he was in the hospital.
(Docket No. 40-1, Jones Depo. at 54). Jones also knew that Plaintiff suffered pain and was seeing both a cardiologist and an orthopedic surgeon.
During his employment, Plaintiff took several medical leaves. In 2008 he had hip surgery, was absent from work for weeks, and Defendant held his position open. In 2009, Plaintiff had two additional surgeries that kept him out of work for weeks, but again he returned to work at Champion. Then, in 2010, he had yet another surgery that kept him out of work for several weeks but, again, he went back to work for Defendants. It was agreed at that time that Plaintiff would work at the Charlotte Pike car wash for $12 per hour.
On June 17, 2011, Plaintiff gave Jones a note from his physician that stated: " Due to cardiomyopathy he should avoid heat of day due to risk of dehydration." (Docket No. 40-2 at 21). According to Jones, the statement " heat of day" as used in the doctor's note was " not very clear." (Docket No. 40-1, Jones Depo. at 82). He did not, however, seek any further clarification, or advise Plaintiff that he needed additional information from him.  Rather, he interpreted the doctor's note to mean that Plaintiff could not perform his job " during any heat that may exist at any point during the day." (Id. at 92). 
Jones made the decision to terminate Plaintiff on June 17, ...