United States District Court, E.D. Arkansas, Western Division
LAKIN PITTS, individually and on behalf of all others similarly situated PLAINTIFF
v.
LINDSEY & COMPANY, INC., a/k/a Accents & Gifts, Inc.; Housingmanager.com; Interiors & Gifts, Inc.; and Lindsey Software Systems, Inc. DEFENDANT
OPINION AND ORDER
J.
LEON HOLMES, UNITED STATES DISTRICT JUDGE
Lakin
Pitts was employed by Lindsey & Company, Inc., which is a
software fee accounting firm serving the property management
industry. Pitts has a disability known as attention deficit
disorder. She worked in Little Rock in an office arrangement
in which she and other persons who often were on the
telephone with customers were in a large working area with
cubicles. Her cubicle was in the center of the room. She
found the noise and activity in that area to be unduly
distracting due to her ADD, so she sought an accommodation
whereby she could have a quieter and more private place to
work. According to her, she first sought an accommodation in
June or July of 2017. In October, she was moved to a cubicle
nearer the corner of the large working area, not to a private
office. She was fired within a day or two of moving to the
cubicle nearer the corner area.
Lindsey
contends that it offered Pitts a reasonable accommodation for
her ADD by permitting her to use a conference room that was
available to employees who could reserve it for specified
periods of time and by providing her with a set of
headphones. Lindsey also contends that it fired Pitts for
reasons unrelated to the ADD - on October 13, 2017, she left
a meeting with the owner of the company before the meeting
was completed, which was an act of insubordination, and on
October 19, 2017, she terminated a training session with a
customer before it was completed after all of the employees
had been ordered not to terminate such sessions before
completion. When she terminated the session with a customer,
she told the customer that she was doing so because she had
another training session that was scheduled to begin, which
was not true. She had other work she needed to do - preparing
training videos that were overdue and had been the subject of
the meeting with the company owner - but she did not have
another training session. The next day her supervisor asked
why she terminated the training session on the afternoon
before, and she said she could not remember. Her supervisor
then terminated her employment.
Pitts
alleges three claims: (1) that Lindsey failed to provide a
reasonable accommodation for her disability; (2) that Lindsey
discriminated against her because of her disability; and (3)
that Lindsey retaliated against her for requesting an
accommodation.
Pitts's
discrimination and retaliation claims are judged under the
McDonnell-Douglas burden-shifting format.
Oemhmke v. Medtronic, Inc., 844 F.3d 748, 755, 758
(8th Cir. 2016). On a discrimination claim, the plaintiff has
the initial burden of showing that she was disabled within
the meaning of the ADA, that she was qualified to perform the
essential functions of the job, and a causal connection
between an adverse employment action and the disability.
Id. at 755. For a retaliation claim, the plaintiff
must show that she was engaged in a statutorily protected
activity, that she suffered an adverse employment action, and
a causal connection between the two. Id. at 758. If
the plaintiff meets her burden of establishing a prima facie
case, the burden of production shifts to the defendant to
provide a legitimate, nondiscriminatory reason for the
adverse employment action. Id. at 755. If the
defendant provides such a reason for the adverse employment
action, the burden shifts back to the plaintiff to show that
the proffered reason is a pretext for discrimination or
retaliation. Id.
The
McDonnell-Douglas burden-shifting format does not
apply to a claim for a failure to accommodate because a claim
for failure to accommodate does not turn on the
employer's intent or motive. Peebles v. Potter,
354 F.3d 761, 766 (8th Cir. 2004). In a reasonable
accommodation case, the failure to provide the accommodation
is the act of discrimination, whether or not the employer was
motivated by discriminatory intent. Id. at 767. An
employer who fails to make a reasonable accommodation for an
individual with a disability is liable if the individual
could have been accommodated without undue hardship on the
operation of the business. 42 U.S.C. § 12112(b)(5)(A).
Thus, for a failure to accommodate claim, the burden shifting
is modified: if the employee cannot perform the essential
functions of the job without an accommodation, the employee
must make a facial showing that a reasonable accommodation is
possible, and then the burden of production shifts to the
employer to show that it is unable to accommodate the
employee without undue hardship. Fenney v. Dakota, Minn.
& East. Rr. Co., 327 F.3d 707, 711-12 (8th Cir.
2003). The Eighth Circuit has explained that to prevail on a
failure to accommodate claim under the ADA, the plaintiff
must establish both a prima facie case of discrimination
based on a disability and a failure to accommodate it.
Moses v. Dassault Falcon Jet-Wilmington Corp., 894
F.3d 911, 923 (8th Cir. 2018). “In order for [Pitts] to
establish a prima facie case of discrimination based on
disability, [she] must show (1) a qualifying disability; (2)
qualifications to perform the essential functions of her
position with or without reasonable accommodation; and (3) an
adverse employment action due to her disability.”
Kelleher v. Wal-Mart Stores, Inc., 817 F.3d 624, 631
(8th Cir. 2016).
The
only element of a prima facie case of discrimination at issue
on summary judgment is whether Pitts suffered an adverse
employment decision because of her disability. Lindsey argues
that she did not suffer an adverse employment action due to
her disability because her termination was based on her
insubordination, violating a direct order, and dishonesty,
not her disability. On Lindsey's argument, the only
adverse employment action was the termination.
In some
instances, however, a failure to accommodate can itself be an
adverse employment action. Orr v. City of Rogers,
232 F.Supp.3d 1052, 1074 (W.D. Ark. 2017) (citing Dick v.
Dickinson St. Univ., 826 F.3d 1054, 1060 (8th Cir. 2016)
and Mershon v. St. Louis Univ., 442 F.3d 1069, 1077
n.5 (8th Cir. 2006)). The Eighth Circuit has said:
“Failure to accommodate and disparate treatment are two
separate theories of liability under the ADA.”
Voeltz v. Arctic Cat, Inc., 406 F.3d 1047, 1051 (8th
Cir. 2005). In Voeltz, a jury found that the
employer had failed to provide a reasonable accommodation to
the employee but also that the adverse employment action -
not recalling the employee from a seasonal layoff - would
have been the same even without the disability. The district
court awarded front pay damages as an equitable remedy for
the failure to accommodate, but the Eighth Circuit set aside
that award, holding that only nominal damages were available.
Id. at 1052. Voeltz shows that an employee
who has been terminated can establish a failure to
accommodate claim even if the termination was not due to the
disability, though the only remedy may be nominal damages.
Lindsey
cites Cannice v. Norwest Bank Iowa, N.A., 189 F.3d
723, 728 (8th Cir. 1999), for the proposition that Pitts must
show, as an element of her case, that the accommodation would
have allowed her to keep her job. The Cannice
opinion does say that the plaintiff needed to show, as an
element of his case, that an accommodation would have allowed
him to keep his job, but then it explains that a plaintiff
carries the burden of showing that a particular accommodation
rejected by the employer would have made the plaintiff
qualified to perform the essential functions of the job.
Id. Here, Lindsey does not contend that Pitts was
not qualified to perform the essential functions of her job
with a reasonable accommodation. Thus, Cannice is
not on point.
After
careful review of the record, the Court has concluded that a
genuine dispute of material fact exists as to whether Lindsey
provided a reasonable accommodation for Pitts's ADD.
First, the Court cannot say as a matter of law that access to
the conference room on an as-needed basis is a reasonable
accommodation. Other employees could reserve the conference
room, in which case it might be unavailable to Pitts when she
needed it. Nor can the Court judge the adequacy of the
headphones, which Pitts says did not block the noise. Second,
the delay in moving Pitts from her cubicle in the middle of
the room to a quieter cubicle near the corner, on Pitts's
account of the facts, could be deemed to be unreasonable.
Lindsey offers no explanation as to why Pitts was not moved
when she first requested an accommodation. Third, Pitts has
pointed out that a person in management based out of the
Searcy office also had a private office in the Little Rock
location, but was in her Little Rock office only two or three
days a week, which meant that it could have been available
for Pitts to use two or three days a week. Lindsey has
offered no explanation as to why it would have been an undue
hardship to allow Pitts to use that office two or three days
each week. Finally, Pitts has testified that she could have
been moved to the Searcy office, where her supervisor worked,
and she could have had a quiet location there. In fact, when
she first requested an accommodation, she was allowed to work
in Searcy for a few days. Lindsey has offered no explanation
as to why it would have been an undue hardship to move Pitts
permanently to the Searcy office where she would have had a
quiet space to work and would have been in closer proximity
to her supervisor. Cf. Equal Employment Opportunity
Comm'n v. Convergys Customer Mgmt. Group, Inc., 491
F.3d 790, 796 (8th Cir. 2007) (“Whether an
accommodation is reasonable is a question of fact to be
decided by a jury.”).
None of
this decides Pitts's claims for discrimination and
retaliation. On the face of it, Pitts has an uphill battle in
trying to show that the real reason for her termination was
discriminatory or retaliatory intent as opposed to the
apparent fact that she was insubordinate, violated a direct
order, lied to a customer, and seems to have lied to her
supervisor. Nevertheless, since there will need to be a bench
trial on the failure to accommodate claim, the Court will not
decide those issues on summary judgment. When a motion for
summary judgment raises issues that will be tried at a bench
trial regardless of the disposition of the motion, prudence
suggests that the motion should be denied and a ruling on the
issues raised in the motion addressed after the record has
been fully developed at trial. See Roberts v.
Browning, 610 F.2d 528, 536 (8th Cir. 1979)
(“However, even if a district judge feels that summary
judgment in a given case is technically proper, sound
judicial policy and the proper exercise of judicial
discretion may prompt him to Deny the motion and permit the
case to be developed fully at trial. The ultimate legal
rights of the movant can always be protected in the course of
or even after trial.”); Andrew v. Clark, 561
F.3d 261, 271 (4th Cir. 2009); 10A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure: Civil 3d § 2728, pp. 525-26 (1998)
(collecting cases). This discretion is warranted here.
See Taylor v. Rederi A/S Volo, 374 F.2d 545, 549 (3d
Cir. 1967) (“It is further settled that the trial court
may exercise its discretion in denying summary judgment where
a part of an action may be ripe for summary judgment but it
is intertwined with another claim that must be
tried.”).
For the
reasons stated, the defendant's motion for summary
...