United States District Court, D. Kansas
Rachel A. Wedel, Plaintiff,
Petco Animal Supplies Stores, Inc., Defendant.
MEMORANDUM & ORDER
JOHN W. LUNGSTRUM, District Judge.
Plaintiff Rachel A. Wedel filed this suit against Petco Animal Supplies Stores, Inc. ("Petco"), her former employer, asserting numerous claims arising out of her employment with Petco. After the court dismissed certain claims on Petco's motion to dismiss and the parties stipulated to the dismissal of other claims, plaintiff's remaining claims include a claim for disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101, and three claims under Kansas state law-malicious prosecution, abuse of process and intentional infliction of emotional distress. This matter is presently before the court on Petco's motion for summary judgment on plaintiff's remaining claims (doc. 92). As will be explained, the motion is granted.
The following facts are either uncontroverted or related in the light most favorable to plaintiff as the non-moving party. Plaintiff Rachel A. Wedel was employed by defendant Petco Animal Supplies Stores, Inc. ("Petco") from 2004 through early February 2012 and during that time she was ultimately promoted to Assistant Store Manager. The first several years of plaintiff's employment with Petco passed without incident. On May 29, 2011, plaintiff was admitted to the hospital for symptoms related to Crohn's disease. Plaintiff had been diagnosed with Crohn's disease in 1994 and she advised Petco about her diagnosis when she was hired. Nonetheless, plaintiff had not required any treatment for her Crohn's disease in many years. In fact, plaintiff's Crohn's disease had not affected her employment with Petco in any way prior to her hospital admission in May 2011 and had not affected her employment with Sears in any way-where she worked from 1999 through 2007.
In early June 2011, plaintiff returned to work on a reduced schedule, working no more than 5 hours per day and 25 hours per week. She maintained this schedule through the end of July 2011. During this same time period, plaintiff was also working part-time for another employer as a dog trainer and she judged between two and four dog shows. Plaintiff also traveled to St. Louis to attend the wedding of a friend. On July 31, 2011, plaintiff began full-time medical leave in connection with a scheduled surgery related to her Crohn's disease. She returned to work in October 2011 and advised Petco that the only restrictions her Crohn's disease would place on her ability to perform her duties were "extra bathroom breaks" and time-off for illness and doctor's appointments. By December 2011, plaintiff indicated that she had "no restrictions" on her ability to work at Petco and simply asked that she be permitted to take frequent restroom breaks. There is no evidence in the record as to the frequency with which plaintiff actually required restroom breaks or the frequency with which plaintiff missed work due to illness or doctor's appointments.
On January 21, 2012, plaintiff purchased and took home nearly $150 in products from Petco. The next morning, plaintiff entered her own return transaction on a Petco register prior to the store's opening and she did so while logged into the system as another employee. The store-security video for that day reflects plaintiff walking into the store without carrying any Petco products and shows plaintiff conducting the return transaction without any products at the register. Lorie Moss, plaintiff's supervisor and the store manager, alerted Erin Reynolds, Petco's Regional Loss Prevention Manager, about the suspicious transaction. On February 7, 2012, Ms. Moss and Ms. Reynolds met with plaintiff about the suspicious return. Plaintiff admitted that she had conducted the transaction under another associate's name in violation of company policy. She further admitted that the transaction appeared suspicious and, in her deposition, testified that the circumstances suggested a fraudulent return. Neither Ms. Moss nor Ms. Reynolds interviewed Susanne Stonebraker, plaintiff's co-worker who walked into the store with plaintiff on the morning of the return and who was in the store at the time of the return. Ms. Stonebraker avers that plaintiff was "carrying bags" into the store on the morning of the return transaction.
At the conclusion of the meeting, plaintiff's employment was suspended and Ms. Reynolds contacted the Overland Park Police Department, who arrived at the store and arrested plaintiff. Later that day, Ms. Reynolds recommended the termination of plaintiff's employment to Petco's Regional Human Resource Partner. Plaintiff's employment was terminated that day for theft. Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.
II. Summary Judgment Standard
"Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed.R.Civ.P. 56(a). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). "The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue." Id. at 1143-44.
In the pretrial order, plaintiff asserts a claim for disability discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, as amended by the ADA Amendments Act of 2008 (ADAAA), Pub. L. No. 110-325, 122 Stat. 3553. According to plaintiff, Petco terminated her employment on the basis of her disability and otherwise subjected her to disparate treatment based on her disability. To establish a prima facie case of employment discrimination under the ADA, plaintiff must present evidence that (1) she is disabled within the meaning of the ADA; (2) she is qualified to perform the essential functions of her job with or without accommodations; and (3) she was terminated under circumstances which give rise to an inference that the termination was based on her disability. Smothers v. Solvay Chems., Inc., 740 F.3d 530, 544 (10th Cir. 2014) (citations omitted). As for the first element, Congress provided three statutory definitions for "disability" under the ADA: A plaintiff may show either "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." Id. (quoting 42 U.S.C. § 12102(1)). In her submissions, plaintiff contends that she is disabled for purposes of the ADA under subsections (A) and (B). In its motion for summary judgment, Petco contends that summary judgment is appropriate because plaintiff has come forward with no evidence that she is disabled such that her prima facie case fails as to the first element. As will be explained, no jury could conclude based on the undisputed evidence that plaintiff is disabled under prong (A) or (B) of the statutory definition. The court, then, grants Petco's motion for summary judgment on this claim.
To demonstrate an actual disability under subsection (A), plaintiff must have a recognized impairment, must identify one or more appropriate major life activities, and show that the impairment substantially limits one or more of those activities. Felkins v. City of Lakewood, 774 F.3d 647, 650 (10th Cir. 2014). Here, plaintiff has identified her disabling impairment as Crohn's disease and she expressly relies on only one major life activity- controlling her bowels. To show that her Crohn's disease substantially limits her ability to control her bowels, plaintiff must show that she is substantially limited in her ability to perform the major life activity "as compared to most people in the general population." 29 C.F.R. § 1630.2(j)(1)(ii). This analysis requires an "individual assessment, " id. § 1630.2(j)(1)(iv), and may take into consideration facts such as the difficulty, effort or time required to perform the major life activity; pain experienced when performing a major life activity; and/or the way the impairment affects the operation of a major bodily function. Id. § 1630.2(j)(4)(ii). A medical diagnosis is insufficient; rather, the ADA requires plaintiffs to offer evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial." Wilkerson v. Shinseki, 606 F.3d 1256, 1262 (10th Cir. 2010).
In support of her argument that her Crohn's disease substantially limits her ability to control her bowels, plaintiff has come forward with evidence that she was diagnosed with the disease in 1994; that the disease is defined as an inflammatory bowel disorder that "produces a thickening of the intestinal wall, a narrowing of the bowel channel, and a variety of symptoms including abdominal pain, fever, diarrhea, flatulence, fatigue, extreme pain, and dehydration;" that the disease generally affects the functioning of the bowel; and that there is no known cure for it. This evidence, however, does not speak to the affect that plaintiff's Crohn's disease has on her own daily activities and, thus, has no bearing on the "substantial limitation" issue. In fact, there is no evidence in the record that plaintiff's condition even on occasion prevented plaintiff from controlling her bowels. Although there is evidence that plaintiff requested "extra bathroom breaks" as an accommodation during her work shifts, there is no evidence concerning the number of restroom breaks plaintiff actually utilized or the urgency with which she required such breaks. Compare Childers v. Hardeman County Bd. of Educ., 2015 WL 225058, at *5-6 (W.D. Tenn. Jan. 15, 2015) (fact issues remained on whether impairment substantially limited plaintiff's ability to control bodily functions where evidence demonstrated that plaintiff's impairment could cause her to use the restroom immediately and frequently, as much as 20 times in one hour); Braheny v. Pennsylvania, 2012 WL 176186, at *2 (E.D. Pa. Jan. 18, 2012) (genuine issue of material fact existed as to disability where plaintiff testified that his colitis resulted in "several accidents" at work and required him to use the restroom between 30 and 60 times each day); Khan v. Bank of America, N.A., 572 F.Supp.2d 278, 288-89 (N.D.N.Y. 2008) (fact issues remained as to whether IBS substantially limited plaintiff's ability to control bowels; plaintiff's medical records and testimony reflected severe symptoms when symptomatic); with Crawford v. New York Life Ins. Co., 2006 WL 2792779, at *5 (E.D.N.Y. Sept. 27, 2006) (granting summary judgment on substantial limitation issue where plaintiff offered no evidence that IBS substantially limited her ability to eliminate waste; plaintiff did not testify that IBS caused problems controlling the elimination of waste beyond needing frequent trips to the restroom).
Moreover, the undisputed evidence reflects that plaintiff's Crohn's disease did not substantially limit her ability to control her bowels. Plaintiff concedes that her Crohn's disease did not affect her employment at Sears in any way from 1999 through 2007 and that her Crohn's disease did not affect her employment at Petco at any time from 2002 until 2011. Plaintiff stipulated in the pretrial order that prior to April 2011 she had not required any medical treatment for her Crohn's disease for many years. In fact, prior to April 2011, plaintiff required no treatment for her Crohn's disease. Following plaintiff's 2011 flare-up and resulting surgery, plaintiff was able to return to work, asking only for additional bathroom breaks and time off for doctors' appointments. This evidence does not indicate a "substantial limitation" on plaintiff's ability to control her bowels as compared to the general population and no reasonable jury could conclude otherwise. Summary judgment, then, is granted on plaintiff's claim that she suffered from an actual disability under the ADA. Moreover, because the record-of-impairment standard under prong (B) is satisfied only if plaintiff comes forward with evidence that she actually suffered an impairment that substantially limited one or more of her major life activities, plaintiff's ...