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Gilbert v. Kroger Limited Partnership I

United States District Court, E.D. Tennessee

May 22, 2019

BOBBY GILBERT, Plaintiff,
v.
KROGER LIMITED PARTNERSHIP I, Defendant.

          MEMORANDUM OPINION AND ORDER

          THOMAS A. VARLAN UNITED STATES DISTRICT JUDGE.

         This civil action is before the Court on defendant's motion for summary judgment [Doc. 12]. Defendant moves for summary judgment on each of plaintiff's four claims: failure to accommodate a disability, disability discrimination, and retaliation under the Americans with Disabilities Act (“ADA”), and disability discrimination under the Tennessee Disability Act (“TDA”) [Docs. 1, 12].[1] Plaintiff responded in opposition to defendant's motion [Doc. 20], and defendant replied [Doc. 22]. For the reasons discussed below, the Court will grant defendant's motion.

         I. Background

         Many facts in this case are undisputed. Plaintiff Bobby Gilbert began working as a clerk for defendant Kroger in 1968, when he was nineteen years old.[2] In 2015, plaintiff was working as the grocery department manager at Kroger Store #549 in Knoxville, Tennessee, a position he had held for over a decade. The duties assigned to the grocery manager position included supervising employees, overseeing and ensuring neat store conditions, stocking, and scheduling. This last duty is particularly important in this case.

         Also in 2015, plaintiff was diagnosed with Parkinson's disease, which caused him to develop mild tremors in his right arm. Although he continued in most of his duties without incident, these tremors made using a computer mouse, typing on a keyboard, and text messaging on a cell phone difficult. This, in turn, left plaintiff unable to enter employee schedules into the computer as he had been trained. The tremors also made responding to text messages and emails from co-workers difficult. Prior to July, 2016, plaintiff compensated for the scheduling difficulty by handwriting the schedule, which an assistant would then enter into the computer. Despite this arrangement, the schedules were entered in a timely manner without issue [Doc. 21-2 p. 15].

         Mary Keeler became the new store manager for Kroger Store #549 in May, 2016. In early July, 2016, plaintiff met with Ms. Keeler to discuss the grocery department. At some point in the conversation, Ms. Keeler asked plaintiff why he was not entering the employee schedules into the computer himself. Plaintiff explained that he had difficulty controlling a computer mouse and keyboard due to his Parkinson's and resulting tremors. From this point on, the parties' versions of events at this meeting differ.

         Ms. Keeler-and by extension, defendant-states that she asked plaintiff if he thought another type of computer keyboard or mouse would help, a question that plaintiff allegedly did not answer [Doc. 14-1 p. 2]. Ms. Keeler then states that plaintiff “sat back in his chair” and opined that it might be time that he step down from his grocery manager position [Id.]. Plaintiff also apparently mentioned a new Kroger store that had opened in Powell, Tennessee, and wondered if that store might have other positions available [Id.]. At this, Ms. Keeler states that she told plaintiff to take time to think about it and get back to her [Id.].

         Plaintiff's story differs. Plaintiff has stated that he does not recall Ms. Keeler asking if another type of mouse or keyboard would help him [Doc. 21-1 p. 12]. He does, however, assert that Ms. Keeler suggested he use his left hand instead. When plaintiff replied that he could not, plaintiff states that Ms. Keeler informed him that the company expected its grocery managers to enter schedules into the computer and recommended that plaintiff step down to a less strenuous position.

         After this meeting, plaintiff submitted a letter requesting a “step down” and transfer to Kroger Store #670 [Doc. 14-1]. Plaintiff also contacted his union representatives, one of whom, named Chris Branum, reached out the District Human Resources Coordinator for the Kroger Nashville Division, Gaynelle Herron [Doc. 14-2]. Mr. Branum indicated that he thought Mr. Gilbert had been treated badly and requested a meeting, which was ultimately held on July 21, 2016. In that meeting, Ms. Herron asked plaintiff questions regarding his request to transfer, including whether Ms. Keeler had raised her voice or asked him to step down in their meeting [Doc. 14-2 p. 2]. Ms. Herron maintains that plaintiff responded “no” to both of these questions, although plaintiff has stated that he did not respond “no” when asked if Ms. Keeler asked him to step down [Doc. 21-1 p. 42');">1 p. 42]. Plaintiff did explain to Ms. Herron that he requested to step down because he felt pressured to do so by Ms. Keeler [Doc. 14-2 p. 2]. Ms. Herron apologized that Mr. Gilbert felt pressured, told him that Kroger would retract his letter requesting a step down and transfer, and offered to let him keep his position as grocery manager at Store #549 [Id.].

         Despite this offer, plaintiff asked if he could still transfer to Store #670, which had an open lead dairy clerk position, as he had previously enjoyed working with the manager of that store [Id.]. Mr. Gilbert understood that the dairy lead position would require a decrease in his pay rate [Doc. 21-1 p. 15]. Nevertheless, Mr. Gilbert submitted another letter requesting a transfer to Store #670, which became effective on August 7, 2016 [Docs. 14-2 pp. 3, 64]. After this transfer, plaintiff received several written notices of problems with his performance, which he attributes to “understaffing and unrealistic expectations.” Defendant, however, states that plaintiff was not meeting the expectations of his position [see Doc. 14-3].

         Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) on January 21, 2017, alleging discrimination based on his age and disability [Doc. 21-4]. Defendant responded to that charge on April 18 [Doc. 23-1]. That summer, plaintiff was granted an extended medical leave to undergo knee replacement surgery [Doc. 14-3 p. 3]. During that time, plaintiff filed the complaint in this case, alleging that defendant violated his rights under the ADA by failing to accommodate his disability and retaliating against him for requesting a reasonable accommodation, and under both the ADA and TDA for discriminating against him based on his disability [Doc. 1]. Plaintiff returned from medical leave on January 13, 2018, and retired from Kroger at the end of that day [Id. p. 4].

         II. Legal Standard

         Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “if the movant shows that 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 bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339 (6th Cir. 1993). Accordingly, all facts and the inferences to be drawn from them must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).

         “Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis ex rel. Curtis v. Universal Match Corp., Inc., 778 F.Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). Likewise, the nonmoving party “cannot rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact, but must present affirmative evidence in order to defeat a properly supported motion for summary judgment.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989) (internal quotation marks omitted). That is, the nonmoving party must point to evidence in the record upon which a reasonable finder of fact ...


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