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Hardy v. Hershey Co.

United States District Court, W.D. Tennessee, Western Division

June 20, 2019

TRACIE HARDY, Plaintiff,
v.
THE HERSHEY COMPANY, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, ORDER GRANTING DEFENDANT'S MOTION FOR LEAVE TO REPLY TO PLAINTIFF'S SUR-REPLY OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

          CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE

         Before the Court are the following motions: Defendant's Motion for Summary Judgment (Docket Entry (“D.E.” #22)); Defendant's Motion for Leave to Reply to Plaintiff's Sur-Reply in Opposition to its Motion for Summary Judgment (D.E. #33); and, Plaintiff's Motion for Summary Judgment (D.E. #34). Pursuant to Administrative Order 2013-05, the motions for summary judgment have been referred to the United States Magistrate Judge for Report and Recommendation; the non-dispositive motions have been referred to the United States Magistrate Judge for determination. For the reasons set forth herein, it is RECOMMENDED that Defendant's Motion for Summary Judgment be GRANTED and that Plaintiff's Motion for Summary Judgment be DENIED. Further, Defendant's Motion for Leave to Reply to Plaintiff's Sur-Reply in Opposition to its Motion for Summary Judgment is DENIED.

         I. Introduction

         a. Plaintiff's Complaint

         On March 27, 2018, Plaintiff filed a pro se Complaint (D.E. #1) alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112-12117, as amended by the ADA Amendments Acts of 2008 (“ADAAA”). Plaintiff alleges that the Defendant failed to accommodate her disability and committed unlawful retaliation against her. (Compl. ¶ 6). Plaintiff alleges that the discriminatory acts occurred in September 2016 and that Defendant is still committing the acts against her. (Id. ¶¶ 7-8). Plaintiff alleges that her disabilities are chronic asthma and “COPD caused by poor ventilation, employees mixing cleaners, chemicals, asbestos, [and] poor sanitation practices.” (Id. ¶ 9).

         Specifically, Plaintiff alleges various difficulties in coming to a resolution of her grievances. Plaintiff claims that a nurse for the Hershey Company, Thomas Sutphin, “based . . . [her] health condition on a personal family members [sic] condition.” (Id. ¶ 10). She alleges that she was “never given the proper workers comp doctors [sic] panel” and that certain unspecified paperwork was “never filled out.” (Id.) She states that, “[t]o make matters worse[, she] was placed on short term disability, denied long term then released or pressured to leave the company.” (Id.) Plaintiff states that the “attorney said I never communicated to Hershey which was not true as the emails will show the burden of proof.” (Id.) Plaintiff also states that Hershey “never tried to accommodate me after I asked several members of [Management] & HR.” (Id.)

         Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) on December 9, 2016 alleging discrimination on the basis of disability. Plaintiff stated that the discrimination began on September 30, 2016 and was continuing.

         Plaintiff was issued a Dismissal and Notice of Rights (“Right to Sue Letter”) by the EEOC on January 8, 2018. (Compl. at Exh. 1.)

         b. Pending Motions

         i. Defendant's Motion for Summary Judgment

         On February 4, 2019, Defendant filed its Motion for Summary Judgment. Therein, Defendant asserts that it has already entered into a settlement agreement with Plaintiff releasing it from liability for the claims at issue in the instant case. Defendant argues that summary judgment is proper when such a settlement agreement has been executed. Defendant additionally filed its Statement of Undisputed Material Fact as required by the Local Rules.

         On February 15, 2019, Plaintiff filed her response to Defendant's Motion for Summary Judgment (D.E. #28). Plaintiff argues that the settlement agreement did not “waive any of . . . [the] findings” that she sets forth-namely, various factual assertions regarding Plaintiff's alleged disability. (Pl.'s Resp. to Def.'s Mot. for Summ. J. at 2, ¶ 7; see also, id. ¶¶ 1-6). In support of this argument, Plaintiff relies on the language contained in the Settlement Agreement governing “Matters Not Waived.” (Id.)[1]

         On February 28, 2019, Defendant filed its Reply in Support of its Motion for Summary Judgment. (D.E. #31). Defendant notes that Plaintiff's Response did not deny any of the asserted facts in its Statement of Undisputed Material Fact. Thus, Defendant requests that the Court deem its facts to be undisputed. Defendant further requests that its Motion for Summary Judgment be granted because “it is beyond genuine dispute that Plaintiff unconditionally released the claims that she now asserts in this action.” (Def.'s Reply in Support of Mot. for Summ. J. at 1). Defendant further notes that Plaintiff's assertion regarding the “Matters Not Waived” in the Settlement Agreement “conveniently omitted several words and phrases” that apply in her case. (Id. at 2).

         On March 4, 2019, Plaintiff filed a Sur-Reply in opposition to Defendant's Motion for Summary Judgment without seeking leave of Court to do so. Such a filing is not permitted under Local Rule 56.1. Accordingly, it is ...


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