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Davis v. Kimbel Mechanical Systems, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

October 25, 2017




         Currently before the Court are an Amended Motion for Summary Judgment (Doc. 23), Brief in Support (Doc. 24), and Statement of Undisputed Facts (Doc. 25) submitted by Defendants Kimbel Mechanical Systems (“KMS”), Rob Kimbel, Brad Smith, and Dustin Hughes (collectively “Defendants”). Plaintiff Sheilah Davis (“Davis”) has submitted a Response in Opposition (Doc. 29) and a Statement of Facts in Dispute (Doc. 30) to which the Defendants have submitted a Reply (Doc. 33). The briefs referenced above are amended and substituted versions of briefs first submitted in March of 2017. The Amended Motion for Summary Judgment is now ripe for decision, and for the reasons stated herein, is GRANTED IN PART AND DENIED IN PART.

         I. BACKGROUND

         A. Factual Background

         Many of the crucial events surrounding this litigation are not in dispute, as the parties generally agree that most in fact occurred. However, the parties paint radically different portraits of the importance of these events to the present case. Because the instant Motion is one for summary judgment, the Court will recite the facts in the light most favorable to Davis, the non-moving party, and will limit its discussion only to what is necessary to provide context for the Court's decision. In addition, because the temporal ordering of events is crucial for certain of Davis's claims-especially the retaliation claims-the Court will recount events chronologically.

         Davis began working for KMS as a receptionist on August 29, 2011. Sometime in or about April of 2014, Davis was promoted and put in charge of the newly established Warranty Department.[1] As Defendants note, “for all practical purposes, she was the Warranty Department as initially constituted.” (Doc. 19, p. 1). During the early part of her time managing the Warranty Department, Davis was paid at a rate of $22.00 per hour. Due to the amount of overtime she accrued, Davis earned around $90, 000 in 2014- approximately twice the amount she would have made working a 40-hour work week.

         As a result of the company's substantial growth, in or around January 2015, KMS began a company-wide restructuring. KMS initially restructured both the accounting and pre-con departments as part of this process. At around that same time, KMS assigned Sean DeWitt, [2] a Project Manager who handled special projects for the company, to work inside the department.[3] In part due to the tremendous number of overtime hours she had been required to work, Davis requested that KMS provide her department with help, acknowledging that KMS's growth meant that to accomplish the Warranty Department's work, the job now required the addition of at least several people.[4] In fact, she “begged” that the Warranty Department be the next department to be restructured. See Doc. 33-1, p. 8.

         Sometime in or around February 2015, Davis was diagnosed with diabetes ketoacidosis, diabetes mellitus, fibromyalgia, Bell's palsy, depression, and thyroid disorders. Although Davis was hospitalized around this time, her health problems initially did not prohibit her from working. On a couple of occasions, she requested to work a day or two at home, which her supervisor, Dustin Hughes, approved.

         Although neither could remember the exact timeframe, both Davis and another employee of the Warranty Department, Madison Spears, stated that sometime before KMS officially announced that it was restructuring the Warranty Department to the rest of the company, an intra-department meeting was held where these changes were announced. In preparation for the meeting, Dustin Hughes, KMS's Chief Operations Officer (COO) and Davis's direct supervisor, had drawn circles on a white board, with him occupying the highest circle, Sean DeWitt occupying the circle under Hughes, and Davis and Spears occupying circles below DeWitt. At that meeting, Davis asked Hughes if he needed to put her name up there as the director still, and Hughes reportedly told her that “I guess you're not the manager, you're demoted” and that she was “no longer in the title role.” (Doc. 30-1, pp. 19, 21).

         On or about April 9, 2015, KMS officially announced the restructuring of the Warranty Department to the rest of its employees via a company-wide email.[5] See Doc. 25-3, p. 3. The restructuring divided the Warranty Department into four regions, with one person in charge of each region. As part of its restructuring, KMS requested that employees needing assistance from the Warranty Department on particular projects should work with the coordinator who was assigned to oversee that region. Id. Davis was placed in charge of the Northwest Arkansas Market Housing region, which she recognized as the most important role, due to the nature and responsibility associated with the region and the fact that it was essentially KMS's “home base.” (Doc. 25-2, pp. 130-31). DeWitt was also placed over one of the four regions. The other two regions were assigned to two females: Madison Spears and Brandy McGough.

         Davis testified that after the email was sent to all KMS employees, she was called in for yet another meeting with Hughes. Davis alleges that at this second meeting, Hughes stated that Davis was being demoted to manager of the Northwest Arkansas Housing Market due to health reasons. (Doc. 30-1, pp. 20-21). Davis alleges that Hughes repeated this statement the next day in the presence of DeWitt. At this second meeting, Davis “kept repeating different questions to [Hughes], you know, you really can't tell me why you demoted me? And he said, it's your health, your health.” (Doc. 30-1, p. 23).

         On May 26, 2015, Davis presented a doctor's note requesting that she be allowed to work from home for six months due to her medical conditions. After she presented the doctor's note, Davis met twice with Hughes to discuss whether an accommodation could be made. Davis alleges that the first meeting lasted only five minutes. (Doc. 30, ¶ 45). She further alleges that DeWitt was present for the second meeting, but then alleges that this meeting was actually an email. Id. The email, sent by Hughes on June 19, sets forth the terms of Davis's accommodation, which she agreed to in writing on June 21, 2015. (Doc. 25-3, p. 5). That email also confirmed Davis's position with the company, including that she had been officially changed from an hourly position to a salary (earning $71, 500 per year).[6] According to the terms of the accommodation, Davis was to work from home three days a week for six months with the intention of returning full-time at the end of the six-month period or sooner, if possible. Id. Davis alleges that KMS eventually had her working four days a week before the six-month period ended due in part to the fact that DeWitt had a standing engagement on Thursdays and she was needed at the office to cover.

         On July 6, 2015, Davis informed KMS that she needed to take time off effective immediately and requested to use her accrued vacation time. Although KMS's policy usually required two weeks advanced notice before using vacation time, KMS approved the request. Around this same time, DeWitt was tasked with managing the Warranty Department. As Defendants note, because Davis was away from the job due to her disability, DeWitt had to stay longer in the Warranty Department and fill Davis's role until new people could be hired and trained. (Doc. 30-8, p. 8). On or about August 10, 2015, Davis's husband asked KMS if Davis could use un-accrued vacation time to cover additional time off. KMS granted this request.

         On September 9, 2015, Davis's physician assessed that she would be able to work “0 hours per day.” (Doc. 25-2, p. 21-22). Although she had to call KMS to inquire about the process, on or about September 25, 2015, Davis requested leave under the FMLA, which KMS granted and made retroactive to the first day of her leave period-July 7, 2015. Davis has stated that her condition has steadily worsened so that, since September of 2015, she now spends around 80-90% of each day in bed. (Doc. 25-2, p.16). Although she has not returned to work since July of 2015, Davis is still an employee for KMS. While she is considered an “inactive” employee, KMS currently pays portions of Davis's health insurance, Short and Long-Term Disability Insurance Coverage, and all of her life insurance premium. (Doc. 24, p. 6; Doc. 29, p. 2).

         B. Procedural Background

         Although she never filed a formal complaint or report of discrimination with KMS, Davis filed a charge of discrimination with the EEOC on or about September 24, 2015. Davis subsequently filed the present Complaint in the Circuit Court of Washington County, Arkansas, on June 14, 2016, against KMS and Individual Defendants Rob Kimbel (Owner, KMS), Brad Smith (CEO of KMS), and Dustin Hughes (again, her direct supervisor and KMS COO). Her Complaint asserts as a basis for the lawsuit that her reduction in pay from $90, 000 to $71, 500 and her demotion from overseeing the entire Warranty Department to being just a Manager (along with the reduction in responsibilities that this entailed) were made for discriminatory reasons. In addition, Davis asserts that KMS retaliated against her for engaging in statutorily protected activities, including asking to work at home because of her disability, filing for FMLA benefits, and filing an E.E.O.C. complaint. As such, the Complaint alleges eight causes of action[7]: 1) disability discrimination under the Americans with Disabilities Act (“ADA”), 2) retaliation for requesting reasonable accommodation under the ADA, 3) age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”), 4) gender discrimination in violation of Title VII of the Civil Rights Act, 5) interference with rights protected by the Family and Medical Leave Act (“FMLA”), 6) retaliation for asserting her FMLA rights, 7) violations of the Equal Pay Act (“EPA”), 8) and violations of the Arkansas Civil Rights Act (“ACRA”). (Doc. 3). The Defendants promptly removed the action to this Court (Doc. 1).

         On August 26, 2016, the individual Defendants (Kimbel, Smith, and Hughes) filed a Motion to Dismiss (Doc. 10) and Supporting Brief (Doc. 11) on the grounds that Davis's Title VII, ADA, ADEA, and non-retaliation ACRA claims are not cognizable against these individuals in their individual capacities. On September 16, 2016, the Court granted the Motion, dismissing Davis's Title VII, ADA, ADEA, and non-retaliation ACRA claims against these individual Defendants with prejudice. (Doc. 14).

         Following that Order, the Defendants filed a Motion for Summary Judgment on March 14, 2017 (Doc. 18) to which Davis filed a Response (Doc. 21) on March 27, 2017. Davis's Response indicated that because the parties were still in the midst of discovery, summary judgment would be improper. The Defendants' Reply Brief (Doc. 22), filed on March 29, 2017, stated that because the discovery deadline was only a couple of months away, Defendants were agreeable to postponing a decision until after that time so that they could file an Amended Motion for Summary Judgment. A week after the discovery deadline passed, Defendants filed an Amended and Substituted Motion for Summary Judgment (Doc. 23), Brief in Support (Doc. 24), and Statement of Facts (Doc. 25). Davis submitted a timely Response (Doc. 29), to which the Defendants submitted a Reply (Doc. 33). This Amended Motion for Summary Judgment is ripe for decision.


         The standard for summary judgment is well established. Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The Court must review the facts in the light most favorable to the opposing party and give that party the benefit of any inferences that can be drawn from those facts. Canada v. Union Elec. Co., 135 F.3d 1211, 1212-13 (8th Cir. 1997). The moving party bears the burden of proving the absence of a genuine dispute of material fact and that it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Nat'l. Bank of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165 F.3d 602 (8th Cir. 1999).

         Once the moving party has met its burden, the non-moving party must “come forward with ‘specific facts showing that there is a genuine issue for trial.'” Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ.P. 56(c)). However, “the mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient” to survive summary judgment. Anderson v. Durham D&M, L.L.C., 606 F.3d 513, 518 (8th Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)). Rather, in order for there to be a genuine issue of material fact that would preclude summary judgment, the non-moving party must produce evidence “such that a reasonable jury could return a verdict for the nonmoving party.” Allison v. Flexway Trucking, Inc., 28 F.3d 64, 66 (8th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). To meet its burden, “[t]he nonmoving party must do more than rely on allegations or denials in the pleadings, and the court should grant summary judgment if any essential element of the prima facie case is not supported by specific facts sufficient to raise a genuine issue for trial.” Register v. Honeywell Fed. Mfg. & Techs., LLC, 397 F.3d 1130, 1136 (8th Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).


         Davis has asserted eight different causes of action against the Defendants.[9] These range from claims of age and gender discrimination to violations of the ADA and the ACRA. Because of the sheer number of claims against the Defendants and for organizational clarity, the Court will divide this section into two sub-sections: one focusing on the claims that are subject to the familiar McDonnell Douglas burden-shifting framework and one focusing on the remaining, analytically distinct claims that are analyzed according to different standards. Within each sub-section, the Court will consider each claim in turn to determine whether it should survive the Defendants' Motion for Summary Judgment.

         A. The McDonnell Douglas Claims

         While the elements required to establish prima facie cases for each of the causes of action Davis asserts are different (and therefore discussed below when evaluating each cause of action), certain of her causes of action are analyzed using a now familiar burden-shifting framework. Indeed, Davis's ADA disparate treatment and retaliation, gender and age discrimination, and FMLA retaliation claims are analyzed through nearly identical processes.[10] The Court would note here that because her ADA reasonable accommodation claim, FMLA interference claim, and EPA claim are not governed by this identical framework, the process for setting forth those claims is discussed in the next sub-section when the Court considers the non-McDonnell Douglas claims.

         A plaintiff may establish a discrimination or retaliation claim through either direct or indirect evidence. See King v. United States, 553 F.3d 1156, 1160 (8th Cir. 2009). In the absence of direct evidence, “the court analyzes [a plaintiff's] claim under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Tusing 639 F.3d at 515 (citing King v. United States, 553 F.3d at 1160). Under that framework, a plaintiff bears the initial burden of establishing a prima facie case. Id. (citing King, 553 F.3d at 1162). Once the plaintiff does so, “the burden of production then shifts to the employer to articulate a legitimate non-discriminatory reason for its employment action.” Id. (citing King, 553 F.3d at 1160). If the Defendant can meet that burden of production, then the burden shifts back to the plaintiff “to demonstrate by a preponderance of the evidence that the stated non-discriminatory rationale was a mere pretext for discrimination.” Id. (quotation and citation omitted).

         Therefore, for Davis's ADA discrimination and retaliation, age and gender discrimination, and FMLA retaliation claims, the Court will first evaluate whether Davis has presented direct evidence showing discrimination. If so, then the claim is entitled to go to the jury. If not, the Court will follow the burden-shifting framework outlined above to determine whether summary judgment is proper.

         The Court would also note that the McDonnell Douglas framework is not all that these claims have in common. In addition, each requires the plaintiff to prove, as part of establishing a prima facie case, that she has suffered an adverse employment action. As such, before turning to the individual claims, the Court feels compelled to address an argument made by Defendants in both their Amended Motion for Summary Judgment and their Reply Brief that Davis has not shown that she suffered an adverse employment action. See Doc. 24, pp. 9-12; Doc. 33, pp. 1-2. To them, this failure means that she cannot establish a prima facie case for any discrimination cause of action or for her FMLA retaliation claim and, therefore, that summary judgment is proper on all of these claims.

         In essence, Defendants' argument is that none of the three employment actions that Davis has alleged qualifies as an adverse employment action because they were all after-effects of the company-wide restructuring that KMS began in the early part of 2015 and/or because they were in fact favorable to her. Davis has alleged that these three actions were: 1) changing her from an hourly employee to a salary of $71, 500, 2) effectively demoting her from her former position as the director of the Warranty Department to a manager of one region of the restructured department, and 3) the concomitant reduction in responsibilities as part of her new job.

         Courts define an “adverse employment action” to be one that involves a “tangible change in working conditions that produces a material employment disadvantage.” Spears v. Mo. Dep't of Corr. & Human Res., 210 F.3d 850, 853 (8th Cir. 2000). The Eighth Circuit has held that a number of events qualify as adverse employment actions, including termination, reductions in benefits or pay, changes in title, or changes in employment that significantly affect an employer's future career prospects. Id. However, “minor changes in working conditions that merely inconvenience an employee or alter an employee's work responsibilities do not [qualify].” Id. (citing to Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997)). This is so because employers have wide latitude to make business decisions and because “[f]ederal courts do not sit as a super-personnel department that reexamines an entity's business decisions.” Torlowei v. Target, 401 F.3d 933, 935 (8th Cir. 2005) (quoting Wilking v. Cnty. of Ramsey, 153 F.3d 869, 873 (8th Cir. 1998)) (quotation omitted). In fact, “an employer has the right to assign work . . . to change an employee's duties, to refuse to assign a particular job . . . and to discharge an employee for good reason, bad reason, or no reason at all absent intentional . . . discrimination.” Walker v. AT&T Tech., 995 F.2d 846, 849-50 (8th Cir. 1993).

         The Court agrees with the Defendants that Davis cannot establish that her change from an hourly employee to a salaried employee was an adverse employment action. As an initial matter, the Court would note that the undisputed evidence in the record establishes that the only reason that Davis made $90, 000 the year prior to the change to a salary was because she was working inordinate amounts of overtime. (Doc. 30-1, p. 25). This $90, 000 figure was not some base, guaranteed pay amount that Davis was entitled to each year. In fact, as the Court noted in the background section above, in order to earn $90, 000 at a salary of $22 per hour, Davis was likely working almost double what her regular hours would have been. Davis herself admitted during her deposition that her high pay was due to this amount of overtime. See, e.g., Doc. 30-1, p. 4 (“I'm working 70, 80 hours for the company . . . .”). Perhaps more importantly, Davis put forward no evidence to counter the Defendant's evidence that she was actually helped by conversion to salary because it enabled her to benefit from more favorable leave time/pay and because she made more after the conversion to salary than she had in the preceding months when still an hourly employee. See Doc. 24, p. 12; Doc. 25-1, ¶ 7. In fact, Davis's counsel acknowledged in the Reply Brief that, “on paper, this was a raise.” (Doc. 29, p. 16). The evidence thus confirms that the change was in fact beneficial to her, as this is not a situation where both pre-and-post change to salary, Davis was doing the same amount of work and being paid less for it. Therefore, Davis has not demonstrated that this change was materially adverse to her and it cannot constitute an adverse employment action.

         As for the alleged demotion from Warranty Director to Northwest Arkansas Regional Manager and the concomitant reduction in responsibilities, it is clear that Defendants dispute that Davis ever held the official title of Warranty Director and/or that she ever suffered a demotion.[11] Defendants also argue that Davis requested help because of the excessive number of hours she was working and that the company, as part of its restructuring process, ended up agreeing to restructure her department. They contend that, at bottom, this case centers on the fact that Davis simply did not like the form that the assistance she received took. While Defendants do adduce evidence in the record to support their contention that the actions it took were related to the company-wide restructure, this Court is not persuaded that it can simply hold as a matter of law at this point that these two actions do not constitute adverse employment actions and thereby dispose of most of Davis's claims in one fell swoop.

         To the contrary, where there is some dispute as to facts which would be central to establishing an element of Davis's prima facie case (here, whether she suffered an adverse employment action in the form of a demotion during the restructure), the Court finds that these two actions and Davis's supporting evidence satisfies the minimal showing necessary at the prima facie stage to meet the requirement of demonstrating that she suffered an adverse employment action. In short, at the summary judgment stage, where there is a genuine dispute about material facts necessary to establish an element of the prima facie case, ties go to the plaintiff. Davis has alleged injurious effects caused by Defendants' actions in restructuring the Warranty Department, and this is enough at the prima facie stage to demonstrate that she suffered an adverse employment action. Johnson v. Ark. State Police, 10 F.3d 547, 551 (8th Cir. 1993) (noting that the threshold of proof necessary to make a prima facie case is “minimal”).

         The evidence that Defendants produce about the restructure should not have the dispositive effect that Defendants urge in their briefing, but rather is more appropriately considered once the plaintiff meets the rest of her prima facie case and the burden of production shifts to the employer to advance a legitimate, non-discriminatory reason for taking those two actions. Thus, to the extent that Davis has to demonstrate that she suffered an adverse employment action as an element of her prima facie case for the claims discussed below, she has done so.

         As such, because all of her discrimination and retaliation claims are analyzed under the burden-shifting framework of McDonnell Douglas, the Court will first analyze below whether Davis has met the remaining elements of her prima facie case. If she does not, then summary judgment is proper for the Defendants. If she can make out the rest of the prima facie case for each of the claims that require proof of an adverse employment action, the Court must consider whether the Defendants have produced sufficient evidence of legitimate, non-discriminatory reasons for the actions it took. If that occurs, Davis must then provide sufficient evidence indicating that these asserted reasons were merely a pretext for unlawful discrimination.

         1. ADA Discrimination (Disparate Treatment) Claim

         The ADA makes it unlawful for a covered employer to discriminate against any “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a); Hill v. Walker, 737 F.3d 1209, 1216 (8th Cir. 2013). Discrimination under the ADA includes, in relevant part, “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability.” 42 U.S.C. § 12112(b)(5). And, the ADA prevents employers from retaliating against persons who invoke the Act's protections. 42 U.S.C. § 12203(a). A plaintiff thus can bring claims under the ADA for failure to accommodate, retaliation, and other forms of disparate treatment. Although the parties have often talked past each other in their filings in this case, it is clear to the Court from the briefings that Davis alleges three distinct disability discrimination claims: a disparate treatment claim (alleging that she suffered an adverse employment action because of her disability), a retaliation claim, and a reasonable accommodation claim. The Court considers the first two claims in this section, and it will consider the analytically distinct accommodation claim in a later section because it does not apply the traditional McDonnell Douglas burden-shifting framework.

         Before evaluating the evidence in the record, the Court must first determine that Davis was entitled to ADA protection. As the Eighth Circuit held in Peyton v. Fred's Stores of Arkansas, Inc., because of the statutory language, “ADA protection extends only to a qualified individual with a disability.” 561 F.3d 900, 902 (8th Cir. 2009) (emphasis added). The ADA defines a qualified individual as one who “with or without reasonable accommodation, can ...

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