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Wilkes v. Nucor-Yamato Steel Co.

United States District Court, E.D. Arkansas, Jonesboro Division

September 29, 2017

ETTER WILKES PLAINTIFF
v.
NUCOR-YAMATO STEEL COMPANY DEFENDANT

          OPINION AND ORDER

          KRISTINE G. BAKER UNITED STATES DISTRICT JUDGE

         Before 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).

         Nucor 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 accommodation.

         Ms. 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 working.

         For the 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).

         I. Motion For Leave To File Statement Of Undisputed Facts

         On 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).

         As 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.”

         The 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.

         II. Factual Background

         Unless 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).

         A. Restroom Access

         While 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.).[1] 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).

         During 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).

         At an 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).

         Except 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).

         When 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., at 14).

         The 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).

         However, 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).

         B. Ms. Wilkes's Leave For Illness

         In 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).

         Ms. 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. ¶ 20).

         The 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).

         C. Ms. ...


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