United States District Court, W.D. Arkansas, Texarkana Division
O. Hickey United States District Judge.
the Court is Defendant Tyson Foods, Inc.'s
(“Tyson”) Motion for Summary Judgment. ECF No.
18. Plaintiff Cora Clark (“Clark”) has not
responded to the motion, and the time to do so has passed.
The Court finds this matter ripe for consideration.
case is an employment discrimination action brought under the
Americans with Disabilities Act of 1990 (“ADA”)
42 U.S.C. § 12112 and the Arkansas Civil Rights Act
(“ACRA”) Ark. Code Ann. §16-123-107(a)(1).
ECF No. 1, p. 5-6. Clark alleges that Tyson, her former
employer, manipulated its absence policy in an effort to
terminate her employment because of disabilities she incurred
as the result of workplace injuries. Id. at 7.
August 21, 2012, Clark was hired as a chicken breast
inspector at Tyson's Hope, Arkansas chicken processing
plant. ECF No. 20, p. 1. Clark worked consistently at the
plant until February 10, 2015, when she was granted a leave
of absence for health reasons. Id. Clark's leave
was eventually extended until August 17, 2015. Id.
While on leave, Clark underwent surgeries on her neck and
back. Id. On August 17, 2015, Clark returned to the
plant with a full release to return to work without any
restrictions. Id. Clark never requested an
accommodation when she returned from leave. Id.
Hope plant uses what amounts to a demerit system for tracking
employee absences. ECF No. 18-3. When an employee is going to
be late or absent from work they call into an automated
system to report their absence. ECF No. 18-1, p. 20.
Employees who are absent or late for more than half of a
shift are given a point, and employees who are absent for
less than half of a shift receive one-half a point. ECF No.
18-3. Under this system, if an employee accumulates fourteen
total points, their employment is terminated. Id. An
employee may “work off” points by showing up for
work on time and working a full shift for twenty-eight
consecutive days. ECF No. 20, p. 3. Additionally,
jury duty, bereavement, work-related injury, and other
pre-approved absences, are excused and do not result in an
employee being assessed points. Id.
October 27, 2016, Clark had accrued fourteen points worth of
absences, and Tyson subsequently terminated her employment.
Id. Clark then filed a charge of discrimination with
the Equal Employment Opportunity Commission
(“EEOC”). ECF No. 1-2. On August 8, 2017, the
EEOC sent Clark a notice-of-right to sue letter. ECF
No. 1-3. On August 31, 2017, Clark filed this suit,
alleging claims of disability discrimination in connection
with her termination from Tyson. ECF No. 1.
August 16, 2018, Tyson filed its motion for summary judgment
and supporting documents (ECF Nos. 18-20), arguing that it is
entitled to summary judgment on all of Clark's claims.
Clark did not respond to the motion, and her time to do so
expired on August 31, 2018. On September 27, 2018, the Court
entered a Show Cause Order giving Clark twenty-one days to
either show cause why she had not responded to Tysons's
summary judgment motion or to file a response to the motion.
ECF No. 25. The Show Cause Order warned Clark that failure to
respond to the motion could result in the Court granting
summary judgment and dismissing her case. As of the date of
this Memorandum Opinion, Clark has not filed a response to
Tyson's Motion for Summary Judgement.
Rule 7.2(b) of the United States District Courts for the
Eastern and Western District of Arkansas provides a
fourteen-day period for nonmoving parties to respond to a
summary judgment motion. Federal Rule of Civil Procedure
56(e) states that a court may deem undisputed a party's
asserted fact if it is not properly controverted by the other
party pursuant to Rule 56(c). Similarly, Local Rule 56.1(c)
states that all material facts asserted in the moving
party's statement of facts shall be deemed admitted if
they are not controverted by the nonmoving party's own
statement of facts. Federal Rule of Civil Procedure 56(c)(1)
provides that a party asserting a genuine dispute of material
fact must support the assertion by either citing to materials
in the record or by showing that the cited materials do not
establish the absence or presence of a genuine dispute.
did not respond to Tyson's summary judgment motion or
properly dispute any of Tyson's asserted facts within the
Court extended response period. Therefore, all facts asserted
in Tyson's statement of facts are deemed admitted for the
purpose of deciding summary judgement. See Chaffin v.
City of Fort Smith, No. 05-cv-2061 JLH, 2005 WL 3805977,
at *1 (W.D. Ark. Oct. 19, 2005).
judgment is appropriate 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.” Hess v.
Union Pac. R.R. Co., 898 F.3d 852, 856 (8th Cir. 2018)
(citation omitted). Summary judgment is a “threshold
inquiry of . . . whether there is a need for trial-whether,
in other words, there are genuine factual issues that
properly can be resolved only by a finder of fact because
they reasonably may be resolved in favor of either
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). A fact is material only when its
resolution affects the outcome of the case. Id. at
248. A dispute is genuine if the evidence is such that it
could cause a reasonable jury to return a verdict for either
party. Id. at 252.
deciding a motion for summary judgment, the Court must
consider all the evidence and all reasonable inferences that
arise from the evidence in a light most favorable to the
nonmoving party. Nitsche v. CEO of Osage Valley Elec.
Co-Op, 446 F.3d 841, 845 (8th Cir. 2006). The moving
party bears the burden of showing that there is no genuine
issue of material fact and that it is entitled to judgment as
a matter of law. See Enter. Bank v. Magna Bank, 92
F.3d 743, 747 (8th Cir. 1996). The nonmoving party must then
demonstrate the existence of specific facts in the record
that create a genuine issue for trial. Krenik v. Cnty. of
LeSueur, 47 F.3d 953, 957 (8th Cir. 1995). However, a
party opposing a properly supported summary judgment motion
“may not rest upon mere allegations or denials . . .
but must set forth specific facts showing that there is a
genuine issue for trial.” Anderson, 477 U.S.
is no ‘discrimination case exception' to the
application of summary judgment, which is a useful pretrial
tool to determine whether any case, including one alleging
discrimination, merits a trial.” Torgerson v. City
of Rochester, 643 F.3d 1031, 1043 (8th Cir. 2011).
Accordingly, the Court ...