United States District Court, E.D. Tennessee
MEMORANDUM OPINION AND ORDER
A. VARLAN UNITED STATES DISTRICT JUDGE.
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,
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.
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. 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.
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].
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.
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
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.
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.].
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].
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.
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.
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 ...