United States District Court, W.D. Tennessee, Western Division
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
CHARMIANE G. CLAXTON UNITED STATES MAGISTRATE JUDGE
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.
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).
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] &
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.
was issued a Dismissal and Notice of Rights (“Right to
Sue Letter”) by the EEOC on January 8, 2018. (Compl. at
Defendant's Motion for Summary Judgment
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.
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
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).
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 ...