United States District Court, M.D. Tennessee, Nashville Division
WILLIAM C. POWELL, Plaintiff,
LOWE'S HOME CENTERS, LLC, Defendant.
KEVIN H. SHARP, District Judge.
Plaintiff William C. Powell was terminated from his employment with Lowe's Home Centers, LLC after he was observed urinating next to shopping carts located near the front entrance of the store where he worked. Defendant has filed a Motion for Summary Judgment (Docket No. 18), to which Plaintiff has responded in opposition (Docket No. 25), and Defendant has replied (Docket No. 28). Additionally, Plaintiff has also filed a Motion to Strike Declaration of Michael Limbert (Docket No. 27). For the reasons that follow, Defendants Motion will be granted while Plaintiff's Motion will be denied.
I. Factual Background
On February 6, 2008, Plaintiff was hired as an hourly employee to work at Lowe's Hendersonville, Tennessee store. In September 2011, he was transferred to a morning stocker job under Freight Flow Department Manager Tommy Huskey.
Morning stockers are responsible for stocking the inventory that is delivered to the store overnight. Those goods are stacked on pallets at the end of each aisle.
In performing their stocker duties, most employees use a handjack to roll the loaded pallet to the middle of the aisle, open the boxes there, and place the items on the aisle's shelves. Plaintiff utilized a different approach. He left the loaded pallet at the end of the aisle, opened the boxes, put the merchandise from the boxes onto a board placed across a shopping cart, wheeled the cart down the aisle, and then lifted the merchandise from the cart and placed it on the shelf.
Huskey believed that Plaintiff could reduce the amount of times he had to bend over and pick up items if he would stop transferring his items to the cart before he put the items on the shelf. Regardless of the stocking method used, Plaintiff was required to bend over to retrieve the items from the pallet.
On several occasions, Huskey told Plaintiff that he was stocking the shelves too slowly. Huskey also told Jada Martin, the store's Human Resource Manager, about Plaintiff's inability to stock shelves in a timely manner, and she told Huskey that he would have to contact the Assistant Store Manager if he wanted to write Plaintiff up.
Sometime around July 1, 2012, and several months into Plaintiff's employment as a morning stocker, he told Huskey that his back had been bothering him. Huskey checked with Human Resources to make sure Plaintiff did not have any work restrictions, and confirmed that Plaintiff did not have any restrictions at the time.
On June 26, 2012, Plaintiff was operating an order picker, stocking upper shelves more than 10 feet off the ground. He operated the cherry picker in that fashion without aisle blockers at a time when the store was open to customers. Plaintiff admitted that he did not use the aisle blockers, and apologized for failing to do so.
Failing to use blockers while operating an order picker at a height of more than eight feet while the store is open to the public is a Class A violation of Defendant's equipment policy for which an employee can be immediately terminated. Nevertheless, Plaintiff was issued a "Final Notice" or "poor job performance." (Id. Ex. 17). He was specifically warned that "any future violation of policy will result in additional corrective action, up to and including termination." (Id.).
Apparently around the same time that Plaintiff complained to Huskey about his back hurting, Plaintiff spoke with Martin and told her that the reason he used the shopping cart method and did not place items directly from the pallet onto the shelves was because of his back. Martin provided Plaintiff with an ADA Accommodation Request Form that requested medical information from his doctor.
On July 20, 2012, Plaintiff submitted the completed ADA form. On the form, Plaintiff indicated that he had to "avoid bending over at the waist and working for sustained periods, " and that he needed "to stand upright as much as possible, such as working from a cart rather than a pallet." (Pf. Depo. Ex. 11). He also indicated that "it has become very difficult for me to perform the duties of morning stocker" and that "the stocking job is just too strenuous for my condition." (Id.).
In addition to the ADA form, Plaintiff submitted a note from his doctor that indicated Plaintiff suffered from herniated disks in his back. The note also explained that the "condition makes it very painful and difficult to work bending over at the waist or in low places for periods of time, " and that Plaintiff "needs to work in an upright position as much as possible." (Id. Ex. 9).
On August 1, 2012, and in response to the submissions, Plaintiff was offered a position as cashier/telephone operator at a pay rate of $9.19 per hour. On the Interactive Process Form signed by both Plaintiff and Martin, Plaintiff "accept[ed] the provided accommodation, " and wrote, "I appreciate the opportunity I have been given. I intend to do a good job and help in any way possible." (Id. Ex. 13).
The hourly rate for a cashier/telephone operator was less than Plaintiff made as a morning stocker. However, it was equal to the rate paid other cashiers.
On the afternoon of November 15, 2012, as Martin was exiting the store, she saw Plaintiff urinating just outside the public entrance in the area where customers retrieve shopping carts. In a statement, the Head Cashier on duty stated that Plaintiff had not indicated a needed to use the restroom at the time of the incident, had not requested a break for that purpose, and had never mentioned anything about having a condition that required the emergency use of a bathroom. Plaintiff admitted to, and apologized for, his public urination, explaining that he "was unable to retain his urine and had to urinate immediately." (Pf. Depo. Ex. 15).
Defendant decided that Plaintiff's actions created or contributed to unsanitary conditions for Lowe's customers and employees, in violation of its Code of Business Conduct and Ethics. Because he was already working under a Final Notice, ...