United States District Court, D. Kansas
MEMORANDUM AND ORDER
L. TEETER, UNITED STATES DISTRICT JUDGE
Nikita Mayfield brings this action against his employer,
Defendant Target Corporation, asserting various
employment-related claims, including: (1) disability
discrimination under the Americans with Disabilities Act
(“ADA”), as amended, 42 U.S.C. §§
12101, et seq. (Count I); (2) failure to accommodate under
the ADA (Count II); (3) race-based disparate treatment and
harassment under Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e, et
seq. (Count III); and (4) retaliation in violation of the
ADA, Title VII, and the Family Medical Leave Act
(“FMLA”), 29 U.S.C. §§ 2601, et seq.
(Counts IV-VI). Doc. 64. Defendant moves for summary judgment
on each claim. Doc. 66.
Court grants Defendant's request for summary judgment on
all of Plaintiff's claims. The Court finds that, although
Plaintiff has met the prima facie burden on his race-based
disparate treatment and FMLA retaliation claims, Plaintiff
cannot rebut Defendant's legitimate, nondiscriminatory
reasons for taking adverse employment actions against him by
showing that those reasons were mere pretext for
discrimination. And the Court finds that Plaintiff cannot
establish a prima facie case on his disability
discrimination, failure to accommodate, race-based
harassment, and ADA and Title VII retaliation claims; thus,
the Court need not even consider pretext for those claims.
The Court accordingly concludes that summary judgment is
Plaintiff's Anxiety and FMLA Leave
hired Plaintiff in 2004 as a warehouse worker at its Topeka
distribution center (the “Center”), where he
still works today. Doc. 64 at 3 ¶¶ (a)(v)-(vi). In
2014, Plaintiff's treating physician, Dr. James Barnett,
diagnosed him with generalized anxiety disorder. Doc. 67-23
at 10:8 -17. Plaintiff testified that his anxiety disorder
causes him to lose sleep, makes him irritable, and causes him
to have difficulty in social interactions, thinking, and
concentrating. It also caused him to lose weight and have
suicidal thoughts in 2017. Doc. 67-1 at 47:18-49:8.
contracts with The Reed Group to administer leaves of absence
for employees, including leave taken pursuant to the FMLA.
Doc. 67-2 at 4:1 9-5:9 . The Reed Group approves leave and
tracks time used. Id. at 3:12-18, 5:25-6:4. It
notifies Defendant when it approves or denies an
employee's request for FMLA leave but does not inform
Defendant of the underlying medical condition providing the
basis for leave. Id. at 33:5 -14; Doc. 67-9 at
10:13-22. Since 2013, Plaintiff has taken FMLA leave on
numerous occasions. Doc. 67-1 at 17:9 -18, 18:4 -8, 19-22,
23:22-24:7. He has never been denied FMLA leave and continues
to use it. Id. at 24:13-18; 12:21-13:3.
Defendant's Corrective Actions
has a progressive counseling and corrective action policy
pursuant to which employees receive counseling corrective
actions (“CCAs”) for engaging in unacceptable
conduct. Doc. 67-8 at 2. On March 3, 2017, Plaintiff received
a CCA after he told an operational manager
(“OM”): “I'm tired of people acting
like I don't know what the fuck I am doing. I have been
here for too long to be told what to do like I don't know
anything.” Doc. 67-10 at 2, Doc. 67-1 at 25:12-14;
26:20-27:10. Less than two months later, on April 28, 2017,
Plaintiff received a second CCA because he failed to report
for a scheduled half day of work or call in his absence. Doc.
67-1 at 28-29. Plaintiff subsequently met with Human Resource
(“HR”) Business Partner Haley Catterson
concerning his second CCA and, a few minutes after the
meeting, she found him in the breakroom sitting down and
using his cell phone outside of break time. Doc. 67-1 at
30:23-31:12. Plaintiff explained that his badge to get into
the warehouse had malfunctioned. Doc. 67-1 at 30:13-16. But
he neglected to use the HR radio or the phone in the
breakroom to call to be let into the warehouse. Doc. 67-1 at
30:13-31:7; Doc. 67-12. On May 9, 2017, Plaintiff received a
third CCA based on the incident for “loafing.”
Doc. 67-1 at 29:13-16; Doc. 67-13.
Plaintiff's three CCAs provided that, for a six-month
period, Plaintiff was ineligible for transfer (except under
limited circumstances with HR approval) and ineligible for
promotion. Doc. 70-4 at 35, 39-41. And because the
“loafing” CCA was Plaintiff's third within a
twelve-month period, he also received a final warning, which
extended his ineligibilities for transfer and promotion from
six months to a year. Id. at 37. The final warning
also added the possibility of termination if he incurred
another CCA. Id.
Plaintiff's Complaints and Leave of Absence
Plaintiff received the final warning, he made a complaint
through Defendant's integrity hotline claiming Defendant
issued him the CCAs in retaliation for his FMLA use. Doc.
67-16. On May 17, 2017, Paul Palazzo, a lead labor relations
consultant for Defendant, interviewed Plaintiff in connection
with his complaint. Doc. 67-15 at 6:13-17. Plaintiff claimed
his OMs talked to him about his FMLA leave in December 2016
and in 2014 and 2015. He thought they retaliated against him
specifically because he had complained about their comments
regarding his FMLA leave. Doc. 67-15 at 6:18-9:6; Doc. 67-16.
after his interview with Mr. Palazzo, on May 18, 2017,
Plaintiff sent an email to HR explaining that he had a
diagnosed anxiety disorder. Doc. 67-2 at 16:8-24; Doc. 67-17.
In the email, Plaintiff further alleged he had experienced
race- and age-based discrimination and FMLA retaliation while
working at the Center and, due to this negative work
environment-which he claimed had “caused or contributed
to [his] anxiety disorder”-he was applying for short
term disability to “keep [himself] healthy.”
Id. He stated he would rather be working and wanted
to start talking to Defendant about ways to accommodate his
disability, so he could work without anxiety. Doc. 67-17.
This was the first time Ms. Catterson or Plaintiff's OMs
heard about his diagnosis. Doc. 67-2 at 7:12-18, 8:23-9:10;
15:16-21; Doc. 67-9 at 11:7 -12:10-18; 14:21-25; 15:3 -23;
16:18-17:3; 18:6 -11; 30:4 -9; Doc. 67-6 at 6 at 3:19-24;
Doc. 67-18 at 5:4-8; 5:20-22; Doc. 67-19 at 5:3 -17.
26, 2017, Ms. Catterson emailed Plaintiff asking whether he
wanted to discuss the issues in the email or wait until he
returned from leave. Doc. 67-2 at 17:2-22; 67-20. On May 31,
2017, Mr. Palazzo informed Plaintiff that Defendant had
determined that his CCAs were issued according to
Defendant's policies-and not in retaliation for his FMLA
leave. Plaintiff and Ms. Catterson met in person on June 1,
2017. Doc. 67-2 at 23:2-8. Plaintiff claimed OM David Carlton
and a coworker, Randy, wanted to get rid of him. He also
provided the names of two employees who had cursed in front
of an OM. Doc. 67-2 at 18:8 -23. By this point,
Plaintiff's doctor had certified that Plaintiff was
unable to work due to his anxiety. Doc. 67-1 at 4:21-25. Ms.
Catterson told Plaintiff to let her know when he was ready to
return to work. Doc. 70-4 at 56.
28, 2017, while still on leave, Plaintiff filed a charge of
discrimination (“Charge”) with the Equal
Employment Opportunity Commission (“EEOC”),
claiming continuous retaliation and discrimination since 2010
on the basis of race, age, and disability. Doc. 1-1; Doc.
67-1 at 46:12-19.
Plaintiff's Return to Work
31, 2017, Plaintiff spoke with Ms. Catterson and stated that
he might be able to return to work with restrictions. Doc.
67-1 at 8:22-9:2; Doc. 67-2 at 20:13-17. He picked up an
“accommodation questionnaire” the next day. Doc.
67-2 at 21:7 -24. Plaintiff's doctor released him for
work on August 24, 2017 with one restriction: that he not
operate order picker machinery. Defendant accommodated this
restriction. Doc. 67-1 at 10:4 -11:16, 43:11-24. After his
return to work, Plaintiff claimed he needed to be able to
leave work if he experienced increased anxiety, and his OMs
permitted him to do so. Id. at 12:21-13:3. He did
not ask for any other accommodations. Doc. 67-1 at 41:14-24.
Catterson followed up with Plaintiff on September 1 and 28,
2017 to see how he was feeling and if he was comfortable at
work. Doc. 67-2 at 22:1 4-23:8. Plaintiff confirmed that he
had no concerns regarding his use of FMLA leave or because of
his race. Doc. 67-2 at 26:24-27:11; Doc. 67-21 at 2.
Plaintiff also admits that, since 2016, no one has used
racist language with him, cursed or screamed at him, or
touched him offensively at work. Doc. 67-1 at 37:3 -39:5.
nonetheless continued to pursue his EEOC action, and, on
February 14, 2018, the EEOC issued Plaintiff a notice of
right to sue letter. Plaintiff proceeded to file this action
on May 11, 2018, asserting claims for disability
discrimination and failure to accommodate his disability
under the ADA, race-based disparate treatment and harassment
under Title VII, and retaliation under the ADA, Title VII,
and the FMLA. Doc. 1; Doc. 64 at 14-15.
judgment is appropriate if 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). In
applying this standard, courts must view the facts and any
reasonable inferences that might be drawn therefrom in the
light most favorable to the non-moving party. Henderson
v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10th Cir.
1994). “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to
the non-moving party, is such that a reasonable jury could
return a verdict for the non-moving party.” Bones
v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th
Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
Counts I-II (ADA)
I and II of the complaint allege Defendant violated the ADA
by discriminating against Plaintiff based on his disability
(Count I) and failing to accommodate his disability (Count
II). Doc. 64 at 13-14. As a threshold matter, the Court
addresses whether Plaintiff is disabled within the meaning of
defines “disability” as “(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.” 42 U.S.C. § 12102(1). To satisfy the
first test for disability, “a plaintiff must (1) have a
recognized impairment, (2) identify one or more appropriate
major life activities, and (3) show that the impairment
substantially limits one or more of those activities.”
Carter v. Pathfinder Energy Servs., Inc., 662 F.3d
1134, 1142 (10th Cir. 2011). The question of whether a
plaintiff has a recognized impairment and identifies one or
more major life activities are questions of law for the
court, and the question of whether an impairment
substantially limits a major life activity is generally a
question of fact for the jury. Id.
Defendant does not contest that Plaintiff has a recognized
impairment of generalized anxiety disorder. See U.S.
EEOC, EEOC Enforcement Guidance on the Americans with
Disabilities Act and Psychiatric Disabilities (2008) (listing
anxiety disorders as a mental impairment under the ADA). And
Defendant also does not appear to contest that Plaintiff has
identified a number of major life activities affected by that
disorder, including self-care, sleeping, concentrating,
thinking, communicating, and working. See 29 C.F.R.
§ 1630.2(i)(1)(i) (defining “major life
activities” as including activities such as
“caring for oneself, ” “performing manual
tasks, ” “concentrating, ” “thinking,
” “interacting with others, ” and
“working”). Instead, Defendant argues the record
does not include any evidence establishing that Plaintiff is
substantially limited in those major life
Court disagrees, and, for the following reasons, finds there
is a genuine issue of ma terial fact regarding whether
Plaintiff's generalized anxiety disorder
“substantially limits” one or more of his major
life activities. The Court notes that the applicable
regulations dictate the term “substantially
limits” be construed broadly and that the determination
of whether an impairment substantially limits a major life
activity requires an individualized assessment. See
29 C.F.R. § 1630.2(j)(1)(i), (iv); Vannattan v.
VendTech-SGI, LLC, 2017 WL 2021475, at *3 (D. Kan.
2017). Here, Plaintiff cites The Diagnostic and Statistical
Manual of Mental Disorders for the symptoms of generalized
anxiety disorder, which include: difficulty concentrating,
irritability, and “clinically significant distress or
impairment in life functions.” Doc. 70-2 at 32. The
doctor who diagnosed Plaintiff, Dr. Barnett, testified that a
panic attack (such as those experienced by Plaintiff) can
limit an individual in performing life functions such as
walking, eating, sleeping, thinking, concentrating,
breathing, driving, or working. Doc. 70-1 at 54:10-17. He
explained that “panic attacks can cause patients to be
unable to focus on anything but their fear” and
“they may or ma y not be able to drive, work, and so
forth, ” but clarified that these symptoms would just
be during the time the individual was experiencing the panic
attacks. Id. at 54:18-24. Dr. Barnett further
testified that Plaintiff reported experiencing symptoms of
feeling “keyed up, ” fatigued, and irritable.
Id. at 56:14-25. Dr. Barnett ...