United States District Court, E.D. Arkansas, Western Division
OPINION AND ORDER
KRISTINE G. BAKER, District Judge.
Plaintiff Marilyn McDaniel brings this action against defendant Dennis Milligan, in his individual and official capacity, under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the Arkansas Civil Rights Act ("the ACRA"), Ark. Code Ann. § 16-123-101 et seq. Ms. McDaniel alleges discrimination based on a disability, and she also asserts claims for malicious prosecution and retaliation. Mr. Milligan filed his motion for summary judgment on Ms. McDaniel's disability discrimination claim (Dkt. No. 7). Ms. McDaniel filed a response in opposition to Mr. Milligan's motion (Dkt. No. 15), and Mr. Milligan filed a reply (Dkt. No. 21). For the reasons that follow, Mr. Milligan's motion for summary judgment is granted in part and denied in part.
I. Factual Background
Mr. Milligan, Saline County Circuit Clerk, hired Ms. McDaniel part-time on January 31, 2011. Ms. McDaniel alleges that, during her first week on the job, she worked with customers and that, during her second and all subsequent weeks, she scanned and indexed active and closed files. Ms. McDaniel admits she did not disclose herself as a person with a disability or request accommodation when Mr. Milligan hired her (Dkt. No. 15-2, ¶ 1). However, Ms. McDaniel alleges that, "[f]rom the beginning, it was understood that [she] could have a flexible work week, and Milligan initially agreed to this, " and that she was "promised" a flexible work week ( Id. at ¶¶ 1-2), although no details are provided in the record about this alleged agreement.
Mr. Milligan alleges that for many months he perceived Ms. McDaniel to be unwell and encouraged her to go to the doctor (Dkt. No. 8-1, ¶¶ 6-7). In the summer of 2011, Mr. Milligan admits that Ms. McDaniel brought him a note from a medical clinic and asked that he place it in her personnel file (Dkt. No. 8, ¶ 20). Mr. Milligan maintains that he does not believe the document addressed any sleep disorder, that Ms. McDaniel did not tell him that she had such a disorder, and that Ms. McDaniel did not request any accommodations (Dkt. No. 8-1, ¶ 8). Ms. McDaniel denies this, stating that she and Mr. Milligan talked about her sleep problems and that she requested accommodation after she gave him the doctor's letter (Dkt. No. 15-2, ¶ 21). Ms. McDaniel alleges that this note is a doctor's note of June 28, 2011, which is attached to her response. The doctor's note states that Ms. McDaniel was being treated for "(1) insulin dependent diabetes mellitus, (2) major depression, (3) osteoarthritis, (4) dyslipidemia, (5) fibromyalgia, and (6) hypertension" (Dkt. No. 15-1). It further states that, due to these conditions, Ms. McDaniel "may at times feel very fatigued and display slowed motor activity as well as possible periods of confusion especially if she doesn't eat and experiences low blood sugars. She may also feel very sleepy at times." ( Id. ). The doctor's note further states that any questions or information may be directed to the clinic and has written across the top right of the page, "file."
Ms. McDaniel states that she took the note to Christy Peterson, the personnel manager, and asked Ms. Peterson to put it in Ms. McDaniel's personnel file, that Ms. Peterson gave the note to Mr. Milligan, and that Mr. Milligan returned it to Ms. McDaniel saying that the note was rejected by Ms. Peterson because it had "too much information" and because she did not know what to do with the note (Dkt. No. 15-2, ¶ 20). In contrast, Mr. Milligan states that he asked Ms. Peterson what to do with the letter and was told that the County did not keep a medical file on part-time employees (Dkt. No. 8, ¶ 22). Mr. Milligan states that he returned the document to Ms. McDaniel with that explanation and that he did not throw the note on the floor, despite Ms. McDaniel's allegations (Dkt. No. 8-1, ¶ 7). Ms. McDaniel admits that Mr. Milligan did not retain the note but alleges that, in one conversation between them, Mr. Milligan tossed the note back at her and told her that she could not have any restrictions on her work (Dkt. No. 15-2, ¶ 23).
Mr. Milligan claims that Ms. McDaniel worked additional, unauthorized hours to make up for her lack of holiday pay as a part-time employee (Dkt. No. 8, ¶ 9-18). Ms. McDaniel admits to working additional hours on four days near the Thanksgiving holiday to make up for lost holiday pay but claims that Gary Underwood, her direct supervisor, gave her permission to do so, up to 40 hours per week (Dkt. No 15-1, ¶ 9-18).
On December 7, 2011, Mr. Underwood met with Ms. McDaniel to discuss her alleged performance issues-interference in the work of others, being distracted by other activities in the office, and resistance to direction given by her supervisors. Ms. McDaniel admits the conversation occurred but denies that such issues with her performance existed (Dkt. No. 15-2, ¶¶ 3-5). At this meeting, Mr. Underwood also discussed Ms. McDaniel's problem staying awake at work, which Ms. McDaniel admits. Ms. McDaniel alleges that she explained she had a disability and requested a flexible workweek as an accommodation ( Id., ¶ 6).
A memo from Mr. Underwood regarding that meeting touches on issues of work efficiency, work distractions, supervision, and staying awake (Dkt. No. 8-4). Before signing the memo, next to "Stay awake, " Ms. McDaniel wrote "See letter from Dr." (Dkt. No. 8-3, ¶ 10; Dkt. No. 8-4). Mr. Milligan alleges that Ms. McDaniel did not give Mr. Underwood a doctor's note or tell him of any medical condition that caused her to fall asleep at work (Dkt. No. 8, ¶ 8). Ms. McDaniel denies this, alleging that she showed the note to Mr. Underwood who advised her that he knew all about it and did not need to see it (Dkt. No. 15-2, ¶ 8). Ms. McDaniel further alleges that, at this meeting, she again requested reasonable accommodations, this time from Mr. Underwood ( Id. ).
On December 12, 2011, Jim Harris, Mr. Milligan's Chief of Staff, reviewed and approved Ms. McDaniel's timesheet and met with her to discuss working extra hours without permission from a supervisor (Dkt. No. 8, ¶ 15-18). Ms. McDaniel admits this but states that she had permission from Mr. Underwood to work extra hours (Dkt. No. 15-2, ¶ 15-18). Mr. Harris alleges, and Ms. McDaniel denies, that after the meeting Mr. Harris learned from another employee, Jennifer Davis, that Ms. McDaniel asked Ms. Davis to slow down her work allegedly as a means to force Mr. Milligan to make Ms. McDaniel a full-time employee (Dkt. No 8-6, ¶ 5; Dkt. No. 15-2, ¶ 19).
On December 22, 2011, Mr. Milligan terminated Ms. McDaniel. Mr. Milligan states that the Notice of Termination states his reasons for his decision to terminate Ms. McDaniel. The Notice states that Ms. McDaniel's work performance is unacceptable, noting her meeting with Mr. Underwood, stating that her attitude towards her job and work performance had both worsened since that meeting, and noting her meeting with Mr. Harris (Dkt. No. 8-7). Ms. McDaniel asserts these reasons were unfounded and retaliatory (Dkt. No. 15-2, ¶ 25).
II. Standard of Review
Summary judgment is proper if the evidence, when viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the defendant is entitled to entry of judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A factual dispute is genuine if the evidence could cause a reasonable jury to return a verdict for either party. Miner v. Local 373, 513 F.3d 854, 860 (8th Cir. 2008). "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather, the dispute must be outcome determinative under the prevailing law." Hollway v. Pigman, 884 F.2d 365, 366 (8th Cir. 1989). However, parties opposing a summary judgment motion may not rest merely upon the allegations in their pleadings. Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). The initial burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. The burden then shifts to the nonmoving party to establish that there is a genuine issue to be determined at trial. Prudential Ins. Co. v. Hinkel, 121 F.3d 364, 366 (8th Cir. 2008). "The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
"There is no discrimination case exception' to the application of summary judgment, which is a useful pretrial tool to determine whether any case, including one alleging discrimination, merits a trial." Torgerson v. City of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc) (citing Fercello v. Cnty. of Ramsey, 612 F.3d 1069, 1077 (8th Cir. 2010) (quoting Berg v. Norand Corp., 169 F.3d 1140, 1144 (8th Cir. 1999)) (citing Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir. 2006))). "Because summary judgment is not disfavored and is designed for every action, ' panel statements to the contrary are ...