The opinion of the court was delivered by: Garnett Thomas Eisele United States District Judge
Presently before the Court is the Defendant's Motion for Summary Judgment. Defendant filed a statement of material facts on June 20, 2006. (Dkt. #32). Plaintiff filed no response to the Motion for Summary Judgment and failed to controvert the statement of material facts. Accordingly, pursuant to Local Rule 56.1(c), all material facts set forth in the Defendant's statement are uncontroverted and deemed admitted.
Plaintiff Jerry Duckworth was employed by Defendant Kroger as a bagger at its store in Little Rock, Arkansas. On January 24, 2005, a Kroger customer asked Plaintiff to walk her to her car. In the parking lot, the customer asked Plaintiff for a kiss whereupon Plaintiff leaned over, put his arm on her shoulder and accidentally touched her breast. Plaintiff then said to the customer, "Let's keep it between us."
The customer's mother filed a complaint with Kroger regarding this incident between her daughter and Plaintiff. The store manager, Kathy Brewer, held a meeting with Plaintiff to discuss the incident. Present at the meeting was Tommy McElmurry, Marlene Fischer and Tony Dunnick.*fn1
At this meeting, Plaintiff admitted touching the customer's breast. At the conclusion of the meeting, Ms. Brewer suspended Plaintiff's employment.
Plaintiff initiated this action on August 26, 2005, seeking damages for wrongful discharge in violation of the Americans with Disabilities Act ("ADA").
II. Summary Judgment Standard
Summary judgment is appropriate only when, in reviewing the evidence in the light most favorable to the non-moving party, there is no genuine issue as to any 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 performed 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 they may reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The Eighth Circuit set out the burdens of the parties in connection with a summary judgment motion in Counts v. M.K. Ferguson Co., 862 F.2d 1338 (8th Cir. 1988):
[T]he burden on the party moving for summary judgment is only to demonstrate, i.e., '[to] point out to the District Court,' that the record does not disclose a genuine dispute on a material fact. It is enough for the movant to bring up the fact that the record does not contain such an issue and to identify that part of the record which bears out his assertion. Once this is done, his burden is discharged, and, if the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue. If the respondent fails to carry that burden, summary judgment should be granted.
Id. at 1339 (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988) (citations omitted)(brackets in original)).
"A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the moving party is not required ...