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Alexander v. Eastern Tank Services, Inc.

Court of Appeals of Arkansas, Division I

November 9, 2016

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

         APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT [NO. 66CV-2014-435] HONORABLE JAMES O. COX, JUDGE AFFIRMED

          Byars & Hall PLLC, by: Joe D. Byars, Jr., for appellant.

          Jones, Jackson & Moll, PLC, by: Kathryn A. Stocks, for appellee.

          CLIFF HOOFMAN, Judge

         Appellant Adam Alexander appeals from the Sebastian County Circuit Court's April 19, 2016 order and April 27, 2016 amended order granting appellee Eastern Tank Services' motion for summary judgment. These orders were filed after our court remanded for the trial court to analyze the appropriate factors related to whether there was employment discrimination in deciding whether the employer was entitled to judgment as a matter of law. See Alexander v. E. Tank Servs., Inc., 2016 Ark.App. 185, 486 S.W.3d 813. Now on appeal, appellant 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 discrimination in violation of the Americans with Disabilities Act (ADA) and the Arkansas Civil Rights Act (ACRA). We affirm.

         Eastern Tank Services, Inc. (Eastern) is in the business of hauling water for oil and gas rigs in commercial trucks. Alexander began his employment with Eastern as a dispatcher in September 2011 at its Fort Smith, Arkansas, location. The dispatcher job required that Alexander answer calls and direct drivers to various locations for hauling purposes. Appellant was terminated in August 2012.

         Appellant filed his complaint against appellee 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).[1] Appellant alleged that he began seeing a therapist at Vista Health in Barling, Arkansas, on August 9, 2012, for biweekly outpatient therapy sessions for the management of stress. 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 revealed to his employer that he went to the therapist to address anxiety and stress, that his therapist mentioned the possibility that he had Asperger's Syndrome, that he was scheduled to be tested in the future, [2] and that he felt he could still handle his work without any problems. His therapy sessions would not interfere with his work schedule. 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 whom McGehee was speaking about or to whom the call was made. Alexander's employment was subsequently terminated on August 20, 2012, and Eastern told him that he was being "laid off." Appellant alleged that not long after being laid off, a person with less seniority was placed into appellant's job position. Alexander further alleged in his complaint that he was wrongfully terminated because of his disability or because he was regarded as having a disability, in violation of the ADA and ACRA.

         Appellee filed an answer on May 30, 2014, denying that Alexander's termination of employment had anything to do with any alleged medical condition or alleged disability, and furthermore, appellee did not understand Alexander to be disabled nor did it treat Alexander as if he were disabled. Appellee denied all material allegations and asked that the complaint be dismissed.

         Appellee filed a motion for summary judgment on March 11, 2015. In its motion, Eastern alleged that Alexander had failed to establish a prima facie case for discrimination under the ADA or ACRA. Eastern asserted that Alexander was laid off because its largest customer was reducing the number of loads, and fewer dispatchers were needed; thus, Alexander was terminated due to business necessity. Eastern stated that Alexander's position had never been filled, and there were fewer dispatchers at present than there were at the time of Alexander's termination. Eastern maintained that the layoffs were directed primarily by seniority. Eastern further alleged that Alexander's alleged disability 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, as well as Alexander's Equal Employment Opportunity Commission (EEOC) intake questionnaire. In his EEOC questionnaire filled out in December 2012, Alexander stated that he worked at Eastern's Fort Smith location, and he believed Eastern to employ between 101 and 500 employees. Alexander did not claim to have a disability but claimed that "the organization treats me as if I am disabled." Alexander believed that he was terminated as a consequence of revealing that he might have Asperger's Syndrome.

         In McGehee's affidavit, he stated that the decision to lay off Alexander was made in early August before Alexander had ever mentioned Asperger's Syndrome. The first layoff occurred on August 8, 2012. McGehee explained in his affidavit that Alexander's termination was delayed until August 20, 2012, because other dispatchers were out sick or on vacation. McGehee stated that appellant had satisfactorily performed his job since his hire in September 2011 and therefore his possible Asperger's Syndrome diagnosis had no impact on his position with Eastern. McGehee stated that Eastern was advised by one of its largest customers that it would be significantly reducing its daily truck loads; that Alexander was the newest dispatcher without a commercial driver's license; that the only dispatcher with less seniority also had a commercial driver's license and this dual capacity was an asset for Eastern; and that after appellant's being laid off, there had not been more than three dispatchers per shift. McGehee swore that fourteen other employees were laid off in August and September 2012; that due to voluntary resignations and the reduction in force, Eastern's employees were reduced from 153 in July 2012 to 109 in October 2012; and that as of January 2015, Eastern had 90 employees.

         In the appended portions of Alexander's deposition, he explained that the only time he felt that he was treated unfairly during his tenure at Eastern was from the time of the discussion about therapy sessions to the point that he was terminated. Alexander said that after he revealed that he would be having therapy sessions, there was a "different type of vibe between me and the management." Alexander agreed that quite a few people were stressed out at that time because of layoffs, and he stated that the only legitimate reason he could think of for Eastern reducing its manpower was that they had four night dispatchers and three day dispatchers. Alexander agreed that he was the least senior dispatcher, except for the one person who also held a commercial driver's license.

         After receiving extensions of time to respond to the motion for summary judgment, appellant filed a partial response in opposition to the motion for summary judgment on May 29, 2015. Appellant appended his own deposition testimony and an affidavit, deposition testimony from McGehee, and samples and summaries of Eastern's business records. Appellant 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.[3] Appellant challenged the accuracy of the affidavit and business documentation provided by Eastern, and appellant argued that dispatchers were not required to have commercial driver's licenses, undercutting the explanation about why appellant was laid off and the remaining less senior dispatcher was not. Alexander agreed that he was aware that fourteen other persons were laid off in August and September 2012, but Alexander thought those were truck drivers and that the loss in truck drivers did not affect the dispatcher work load. He stated that he felt discriminated against because of the possibility of having a disability, and he asserted that genuine issues of fact existed as to the truth of the reason given for his termination. Appellant focused on the timing of the "true" reduction in business and consequential layoffs, asserting that this did not appear to occur until some time in September 2012, after he was laid off.

         After Eastern filed a reply, the circuit court filed an order on July 14, 2015, granting the summary-judgment motion without articulating the basis for entering judgment in favor of the employer. In appellant's first appeal, we reversed and remanded for the trial court to explain its findings under the analysis required by McDonnell Douglas Corp. v. ...


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