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Alexander v. Eastern Tank Services, Inc.

Court of Appeals of Arkansas, Division II

March 30, 2016

ADAM ALEXANDER, APPELLANT
v.
EASTERN TANK SERVICES, INC., APPELLEE

          APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT. NO. CV-2014-435. HONORABLE JAMES O. COX, JUDGE.

         JOE DAN BYARS.

         MARK A MOLL.

         CLIFF HOOFMAN, Judge. KINARD and GLOVER, JJ., agree.

          OPINION

Page 814

          CLIFF HOOFMAN, Judge

         Appellant Adam Alexander appeals from the Sebastian County Circuit Court's July 14, 2015 order granting appellee's motion for summary judgment and denying appellant's motion for extension of time to respond, and from the circuit court's August 11, 2015 order denying appellant's motion for new trial or reconsideration. On appeal, appellant contends that (1) the circuit court erred in concluding that he failed to produce sufficient evidence to show that genuine issues of fact remain to be tried with respect to whether the discharge of his employment was motivated by discrimination in violation of the Americans with Disabilities Act (ADA) and the Arkansas Civil Rights Act (ACRA), and (2) the circuit court erred in denying his request for additional time to complete discovery before ruling on appellee's motion for summary judgment. We affirm in part and reverse and remand in part.

         Appellant filed his complaint against appellee Eastern Tank Services, Inc. (Eastern) on May 2, 2014. He alleged that Eastern unlawfully terminated his employment in violation of the ADA, the ACRA, and 42 U.S.C. § 2000ff (GINA). Alexander began his employment with Eastern as a dispatcher in September 2011. He alleged that he began seeing Eric Johnson, LPC, LMFT, at Vista Health in Barling, Arkansas, around August 9, 2012, for biweekly outpatient-therapy sessions. He provided a copy of a note explaining the need for his therapy to his safety manager, Paul McGehee, and Barry Zielinski with Eastern. Alexander also alleged that he had revealed to his employer that his therapist mentioned the possibility that he had Asperger's Syndrome, that he was scheduled to be tested in the future,[1] and that he felt that he could still handle his work without any problems. Alexander stated that he subsequently overheard McGehee speaking on his cell phone stating that " we are not going to have someone with that condition working in this office." However, he did not overhear who McGehee was speaking about. Alexander's employment was subsequently terminated on August 20, 2012, and Eastern told him that he was being " laid off." Alexander further alleged in his complaint that he was wrongfully terminated because of his disability, because he was regarded as having a disability, or because of his genetic information

Page 815

in violation of the ADA, the ACRA, and GINA.

         Appellee filed an answer on May 30, 2014, and a motion for summary judgment on March 11, 2015. In its motion for summary judgment, Eastern alleged that Alexander had failed to establish a prima facie case for discrimination under the ADA or the ACRA and had failed to establish any unlawful employment practice in connection with GINA. Eastern additionally alleged that Alexander was laid off because its largest customer was reducing the number of loads, and fewer dispatchers were needed. Eastern further alleged that Alexander's alleged disability and genetic information had no impact on its decision; instead, Alexander had the least seniority except for one other dispatcher who actually occupied the position of slip seat, meaning that the employee could either dispatch or drive because he held a commercial driver's license. Eastern attached several exhibits to its motion, including depositions and affidavits. In McGehee's affidavit, he revealed that the decision to lay off Alexander was made in early August before Alexander had ever mentioned Asperger's Syndrome. The termination date of the first employee that Eastern laid off was on August 8, 2012. However, McGehee explained in his affidavit that Alexander's termination was delayed until August 20, 2012, because of other dispatchers being out sick or on vacation.

         On March 17, 2015, appellant filed a motion for an extension of time to file a response,[2] which the circuit court subsequently granted and extended his time to file a response until May 1, 2015. Appellant filed a second request for an extension of time on April 27, 2015, which the circuit court granted and extended his time to file a response until May 29, 2015. On May 29, 2015, appellant filed a partial response in opposition to the motion for summary judgment and alternatively requested the court to again grant him an extension of time to respond.[3] In his partial response, he alleged that there were genuine issues of fact that still existed and that appellee's motion for summary judgment should be denied in its entirety. Alternatively, he requested additional time to conduct further discovery to show that any decline-in-business explanation offered by Eastern was merely pretext and to incorporate any further findings in a subsequent response, " if such be necessary." After Eastern filed a reply, the circuit court filed an order on July 14, 2015, stating, " The Court being well-informed declares that the [summary-judgment] motion should be and is hereby GRANTED. Plaintiff's request for a second extension of time is therefore DENIED." Although appellant filed a motion for new trial or for reconsideration, the circuit court denied this motion on August 11, 2015, without any additional findings incorporated into the order. This timely appeal followed.

         Appellant first contends that the circuit court erred in concluding that he failed to produce sufficient evidence to show that genuine issues of fact remain to be tried with respect to whether the discharge of his employment was motivated by ...


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