United States District Court, E.D. Arkansas, Jonesboro Division
OPINION AND ORDER
KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE
this Court is a motion for summary judgment filed by
defendant Nucor-Yamato Steel Company (“Nucor”)
(Dkt. No. 27). Plaintiff Etter Wilkes has responded (Dkt. No.
36). Nucor filed a reply (Dkt. No. 41), to which Ms. Wilkes
has responded (Dkt. No. 42). Also before the Court is Ms.
Wilkes's motion for leave from the Court to file
statement of undisputed facts (Dkt. No. 43). Nucor opposes
Ms. Wilkes's motion for leave (Dkt. No. 44).
moves for summary judgment on Ms. Wilkes claims under Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e (“Title VII”), and the Americans
with Disabilities Act of 1990 (“ADA”), 42 U.S.C.
§ 12101. Nucor argues that Ms. Wilkes cannot prove that
she suffered an adverse employment action under Title VII.
Nucor maintains that Ms. Wilkes's ADA claim fails
concerning the provision of information to a third-party
disability insurance carrier because individuals outside of
her protected class also had claims denied. In addition,
Nucor maintains that the third-party's denial of
disability insurance does not establish an adverse employment
action by Nucor. Finally, Nucor argues that Ms. Wilkes's
ADA claim concerning a failure to accommodate fails because
Ms. Wilkes cannot prove that she is a qualified individual
under the ADA or that Nucor failed to provide a reasonable
Wilkes makes several arguments in response to Nucor's
motion for summary judgment. First, Ms. Wilkes contends that
Nucor's actions constitute an adverse employment action
under Title VII because she was required to walk a longer
distance to the restroom than her male co-workers and
continued to pursue the construction of a women's
restroom closer to her work area throughout her employment.
Next, Ms. Wilkes argues that her ADA claim concerning
Nucor's provision of information to a third-party
disability insurance carrier stands because she can show that
she was advised by a Nucor employee that her application was
the only claim known to be denied. Finally, Ms. Wilkes argues
that Nucor failed to provide her reasonable accommodation
even though she requested only additional short breaks while
following reasons, this Court denies Ms. Wilkes's motion
for leave from the Court to file statement of undisputed
facts (Dkt. No. 43) and grants the motion for summary
judgment, entering judgment in favor of Nucor (Dkt. No. 27).
Motion For Leave To File Statement Of Undisputed
January 26, 2017, Nucor filed its statement of facts (Dkt.
No. 29), along with its motion for summary judgment and
memorandum in support. These filings were made through the
Court's ECF system. Nucor represents that its statement
of facts was served on Ms. Wilkes that same day through the
Court's ECF system (Dkt. No. 44, ¶ 2). Ms. Wilkes,
in her motion for leave, represents that when she
“downloaded the Motion brief and exhibits there were no
undisputed facts that downloaded with this material.”
(Dkt. No. 43, ¶ 1).
Nucor notes, the Local Rules of the United States District
Court for the Eastern and Western District of Arkansas have
long required the filing of a separate statement of facts
with a summary judgment motion. This requirement is not new.
Local Rule 56.1(b) of the United States District Court for
the Eastern and Western District of Arkansas requires a
non-moving party to supply the Court with a statement of
material facts “as to which it contends a genuine issue
exists to be tried.” See Jackson v. United Parcel
Serv., Inc., 643 F.3d 1081, 1088 (8th Cir. 2011).
Federal Rule of Civil Procedure 56(e) states that,
“[i]f a party fails to properly support an assertion of
fact or fails to properly address another party's
assertion of fact as required by Rule 56(c), the court may:
(1) give an opportunity to properly support or address the
fact; (2) consider the fact undisputed for purposes of the
motion; (3) grant summary judgment if the motion and
supporting materials - including the facts considered
undisputed - show that the movant is entitled to it; or (4)
issue any other appropriate order.”
record evidence relied upon by Nucor in filing its motion for
summary judgment was attached to its motion, not the
statement of facts (Dkt. Nos. 27, 29). Further, the statement
of facts Nucor filed was repeated in substantially the same
form, complete with cites to record evidence, at the start of
its memorandum in support of its motion (Dkt. No. 28, 1-7).
In other words, when Ms. Wilkes downloaded the motion and
memorandum, she had available the allegations of undisputed
fact made by Nucor and the record evidence upon which Nucor
relied in filing its motion. Ms. Wilkes attached to her
response several exhibits of her own, supplying the record
evidence upon which she relied for her response (Dkt. No.
36). The Court has carefully considered these submissions. As
a result of the Court's consideration of this material,
the Court determines that Ms. Wilkes need not file a response
to the statement of facts submitted by Nucor and denies her
motion to do so (Dkt. No. 43). The Court also will not deem
admitted Nucor's statement of facts. For purposes of
resolving Nucor's motion, the Court has considered a fact
undisputed only if it is supported by all record evidence,
that submitted by Nucor and Ms. Wilkes.
otherwise noted by citation, the following facts are taken
from Nucor's statement of undisputed facts in support of
its motion for summary judgment (Dkt. No. 29) and Ms.
Wilkes's exhibits to her response to Nucor's motion
(Dkt. No. 36). Ms. Wilkes worked for Nucor from December 2,
1997, through March 5, 2014 (Dkt. No. 29, ¶ 1). Ms.
Wilkes worked both day and night shifts, with a shift
consisting of twelve hours (Dkt. No. 27-1, Wilkes Dep., at
45). She worked as an Inspector until her termination on
March 5, 2014 (Dkt. No. 2, ¶ 9).
working in the Roll Mill Finishing Department, Ms. Wilkes had
access to two women's restrooms, one in the Roll Mill
administrative office and one in the locker room. A male
restroom is located in the I-Bed area of the Roll Mill, which
was Ms. Wilkes's work area (Dkt. No 27-5, Brassfield
Aff., ¶¶ 3-4). According to Dennis Taylor, who
supervised Ms. Wilkes, the closest restroom is in shipping
“right outside of door two, which is a hundred foot
further than the one at the repair bed.” (Dkt. No.
36-2, Taylor Dep., at 22). That restroom can be locked by
anyone from the inside, is used by the cleaning service
ladies, was accessible to Ms. Wilkes without having to go
outside, and was approximately 50 feet closer to Ms.
Wilkes's work area than the Roll Mill office restroom
(Id.). According to Ms. Wilkes, the men's
restroom was located 60 feet from her work area, and the
nearest available women's restroom was approximately an
additional 75 feet past the closest men's restroom (Dkt.
No. 27-1, Wilkes Dep., at 84-85). For Ms. Wilkes to walk to
the women's restroom in the Roll Mill office, she had to
walk through a door and along a short pathway (Dkt. No 27-5,
Brassfield Aff., ¶ 4). That restroom was approximately
150 feet from where the men's restrooms were in Ms.
Wilkes's work area, a total walk of approximately 250
feet from Ms. Wilkes's work area (Dkt. No. 36-2, Taylor
Dep., at 15, 38-39). To access the Roll Mill office restroom,
Ms. Wilkes had to walk outside and approximately 30 feet of
her walk outside was not under cover (Id., at 15).
According to Aaron Brassfield, leadperson on Ms. Wilkes's
crew, it took an average of 37.1 seconds to walk the
additional distance to the Roll Mill office restroom from the
men's facility, “walking at a reasonable, normal
pace.” (Dkt. No 27-5, Brassfield Aff., ¶ 6).
the relevant period, Mr. Taylor was Ms. Wilkes's
supervisor. She admits she had a “great”
relationship with Mr. Taylor and could speak with him about
different employment issues (Dkt. No. 27-1, Wilkes Dep., at
20-21). Ms. Wilkes admits that she was never formally written
up for taking excessive breaks, and she was never told by Mr.
Taylor or any of the Nucor leads that she could not take a
break (Dkt. No. 27-1, Wilkes Dep., at 85). When she needed to
take a break, she radioed for a utility man to relieve her.
Male employees did the same when they took an extended break
for the restroom, lunch, to go to the office, or to take care
of business (Dkt. No. 36-2, Taylor Dep., at 15-16, 42-43). If
Ms. Wilkes's relief did not arrive timely, she had
instructions from her supervisor that she could push a button
and shut down the inspection bed (Id. at 17-18). Mr.
Taylor did not recall her ever being required to do that
(Id. at 43). He testified that, if that did occur,
the line would be restarted within a couple of minutes, and
no production would be lost as a result, meaning that
production bonuses would not be effected (Id. at
43). There is no record evidence that Ms. Wilkes was not paid
a production bonus during her employment with Nucor resulting
from this or any other circumstance (Id. at 27-29).
unknown date, no later than October 2008, Ms. Wilkes found a
padlock on the door of the women's restroom in the Roll
Mill office while working a night shift (Dkt. No. 29, ¶
6). According to Johnny Michael Dugan, a Roll Mill Manager,
Patrice Strickland, a clerk for Roll Mill, placed the padlock
on the door because the women's restroom was
“greasy, ” “nasty, ” or
“vandalized” (Dkt. No. 27-3, Dugan Dep., at 10).
After Ms. Wilkes complained to Mr. Dugan about the restroom
being locked, he ordered the lock removed, and the
women's restroom remain unlocked (Dkt. No. 29, ¶ 8).
The Court acknowledges that Ms. Wilkes and Mr. Dugan
characterize their conversation that day differently (Dkt.
No. 36-1, Wilkes Dep., at 75-76, 80; 36-3, Dugan Dep., at
9-11, 14-15). The parties agree that, after that date, the
women's restroom in the Roll Mill office was never locked
again (Dkt. No. 36-1, Wilkes Dep., at 82).
for the above incident, Ms. Wilkes had no other issues with
locked restrooms during her employment at Nucor. She did not
complain to Mr. Dugan about restroom access, distance,
cleanliness or anything else after complaining about this one
incident (Dkt. Nos. 36-1, Wilkes Dep., at 77-78; 36-3, Dugan
Dep., at 32-34).
she complained about the Roll Mill office restroom being
locked, Ms. Wilkes brought up for the first time the issue of
not having a women's restroom closer to her work area
(Dkt. No. 29, ¶ 9). In response to her complaint, Nucor
sought bids for building a women's restroom near Ms.
Wilke's work area (Dkt. No. 29, ¶ 10). The new
women's restroom would either be built adjacent to the
men's facility or converted from a previous men's
facility (Id.). According to Mr. Dugan's
deposition, the quotes for building a women's restroom
ranged from $50, 000 to $80, 000 (Dkt. No. 27-3, Dugan Dep.,
parties dispute how the issue of building a women's
restroom was handled. Nucor maintains that it informed Ms.
Wilkes about the restroom construction options, and Ms.
Wilkes indicated that, as long as the Roll Mill office
restroom remained unlocked, she preferred to use that
facility as opposed to a restroom out in the Mill (Dkt. No.
28, at 13; Dkt. No. 36-3, Dugan Dep., at 12-13, 31-34). Nucor
further maintains that it did not build a new women's
restroom because Ms. Wilkes stated that she was satisfied
with the women's restroom in the Roll Mill office
(Id.). Nucor contends that, based upon Ms.
Wilkes's preference for the restroom in the office, a
women's facility was not built, the Roll Mill office
restroom was never locked again, and Ms. Wilkes never had an
issue with restroom access again (Dkt. No. 29, ¶ 12).
Ms. Wilkes argues that Nucor never asked if she needed a new
women's restroom built (Dkt. No. 39, at 7). Ms. Wilkes
further argues that she was in favor of the construction of a
women's restroom near her work area after she was locked
out of the women's restroom (Id.). In her
deposition, Ms. Wilkes asserts that she was
“delighted” to use the women's restroom in
the Roll Mill office but never said that she
“didn't need” a restroom built in the Roll
Mill (Dkt. No. 27-1, Wilkes Dep., at 84). Ms. Wilkes also
admits in her deposition that she “was promised early
on” that a women's restroom would be built closer
to her work area (Id., at 13).
Ms. Wilkes's Leave For Illness
November 2012, Ms. Wilkes became ill with bronchitis and had
to take time off from work (Dkt. No. 29, ¶ 13). She
applied for leave under the Family and Medical Leave Act
(“FMLA”) and paid sick leave, which was provided
(Id. ¶ 14). While off work for bronchitis, Ms.
Wilkes was diagnosed with other ailments relating to her hip,
back, and knee, including morbid obesity, lumbar degenerative
disc disease, and degenerative knee disease (Id.
¶¶ 15, 27). Pursuant to the new diagnoses, Ms.
Wilkes's doctor extended her excuse for time off from
work (Id. ¶ 15).
Wilkes was still unable to work at the end of her 13 weeks of
paid sick leave (Id. ¶16). Subsequently, she
applied for long-term disability (“LTD”)
insurance benefits on February 13, 2013, with Nucor's
third-party disability insurance carrier, Liberty Mutual, so
that she could receive some income while she remained off
work (Dkt. No. 29, ¶16). Liberty Mutual provides LTD as
an optional, third-party benefit that Nucor employees can
sign up for at the beginning of their employment and that is
not administered by Nucor (Id.¶ 17). In her LTD
claim submitted to Liberty Mutual, Ms. Wilkes contended that
she was disabled due to cellulitis in her hip and leg and due
to bronchitis (Id. ¶ 18). Ms. Wilkes's LTD
claim was denied by Liberty Mutual because she did not meet
Liberty Mutual's definition of “disabled”
based on their review of her medical records (Id.
parties dispute Ms. Wilkes's contention that Nucor
discriminated against her based on her gender during the LTD
application process (Id. ¶ 21). She argues that
Nucor did not provide assistance with her LTD claim because
Nucor did not produce documents to Liberty Mutual in a timely
manner and, in some cases, provided inaccurate information
(Dkt. No. 29, ¶ 21). Ms. Wilkes admits that Nucor
corrected any issues with regard to the documents sent to
Liberty Mutual (Id. ¶ 22). Ms. Wilkes also
admits that Liberty Mutual denied her LTD application because
she did not meet the definition of “disabled, ”
not because of the information that Nucor did or did not
provide (Id. ¶ 20, 22). Ms. Wilkes also
contends that Nucor failed to assist her with her appeal of
the denial of benefits, but she does acknowledge that
Nucor's Controller assisted her with her appeal
(Id., ¶ 23). In her deposition, Ms. Wilkes
discusses a meeting she had with Keith Prevost where he
assisted Ms. Wilkes with a letter for her appeal (Dkt. No.
27-1, Wilkes Dep., at 102-3). According to Ms. Wilkes, Mr.
Prevost was also creating a video to send to Liberty Mutual
for her LTD appeal that would show the physical requirements
of Ms. Wilkes position at Roll Mill (Id.). However,
Ms. Wilkes states that she never saw Mr. Prevost's video
and was unclear if a video was ever sent to Liberty Mutual
(Id.). Liberty Mutual denied Ms. Wilkes's LTD
appeal because she did not meet the definition of
“disabled” required by Liberty Mutual (Dkt. No.
29, ¶ 24).