The opinion of the court was delivered by: James M. Moody United States District Judge
Pending is Defendant's motion for summary judgment. (Docket # 23). Plaintiff has responded and Defendant has filed a reply. For the reasons set forth herein, Defendant's motion is granted.
Plaintiff Tiffiny York worked part-time for Liz Claiborne, Inc. in Dillard's Park Plaza and McCain Mall stores as a fragrance model beginning in April 2002. Prior to working for Liz Claiborne, Plaintiff worked for Dillard's at the Lancome cosmetic counter at the end of 1999 and the beginning of 2000. Dillard's terminated Plaintiff from the Lancome cosmetic counter during her first employment experience for giving a store employee a cosmetic sample.
On June 23, 2003, while working for Liz Claiborne, Plaintiff showed up for work at the Park Plaza Dillard's store with a bandage covering her left eye. Plaintiff told the employees that she had been experiencing pain in her left eye and that her doctor believed that the fragrance she worked with caused an eye irritation. Plaintiff also told employees the pain in her eye was related to a past case of shingles. Plaintiff told employees that she knew the shingles were contagious, but she was not contagious. Before her shift ended that day, Jody from the Elizabeth Arden counter at Dillard's told Plaintiff that "Cindy" at the Chanel counter was upset and concerned that Plaintiff's condition was contagious.
Plaintiff alleges that the following day, June 24, 2003, when she arrived at work she was informed that Assistant Store Manager, Gil Espinosa was looking for her and asked that she come to his office. Plaintiff spoke with Espinosa later in the day about Dillard's employees questioning her condition. Espinosa apologized to her for the employees questions and asked her to get a doctor's statement to allay the employees' concerns.
On June 25, 2003, Plaintiff contacted her doctor and asked that a statement be faxed to Espinosa. Plaintiff returned to work on June 27, 2003. Upon her arrival, Store Manager Brant Musgrave and Cosmetic Sales Manager Jina Rankin approached Plaintiff to ask about her condition. Plaintiff claims that Musgrave approached her and said "I hear you have shingles." Plaintiff claims that she explained that she was not contagious and referred to the doctor's letter which had been sent. Plaintiff asked why she was being bothered about this matter. Plaintiff claims that Musgrave stated that Plaintiff was placing other employees at jeopardy, became upset and demanded that the Plaintiff leave the store. Plaintiff claims that she refused to go anywhere with Musgrave. Security was called to escort Plaintiff from the store.
Defendant alleges that when Musgrave approached Plaintiff on June 27, 2003 Plaintiff became loud, defensive and verbally abusive. Defendant claims that security was called after Plaintiff refused to leave the sales floor. The Plaintiff was terminated and banned from the store for being verbally abusive and disrespectful on the sales floor. Musgrave told Plaintiff that she was banned from the store because of her attitude not because of her condition.
Plaintiff alleges that she was banned from Dillard's because of her alleged disability. Plaintiff alleges that she is disabled because she has pain and no vision in her left eye. She also claims that Dillard's regarded her as disabled because she at one time had shingles and store employees thought she was contagious. Plaintiff never informed Musgrave that she is visually impaired in her left eye. Plaintiff has a drivers license with no restrictions. Plaintiff operates a motor vehicle, however, she does not drive at night or in the rain.
Plaintiff filed a Charge of Discrimination against Dillard's with the Equal Employment Opportunity Commission ("EEOC") on July 21, 2003, alleging that she had been terminated because she is disabled in violation of the Americans with Disabilities Act. On May 29, 2004, Plaintiff received a notice of her rights from the EEOC. Plaintiff filed this suit on August 30, 2004. Defendant claims that summary judgment is proper at this time.
Standard for Summary Judgment
Summary judgment is appropriate only when there is no genuine issue of material fact, so that the dispute may be decided solely on legal grounds. Holloway v. Lockhart, 813 F.2d 874 (8th Cir. 1987); Fed. R. Civ. P. 56. The Supreme Court has established guidelines to assist trial courts in determining whether this standard has been met:
The inquiry is the threshold inquiry of determining whether there is a need for trial -- whether, in other words, there are genuine factual issues that properly can be resolved only by a finder of fact because ...