Davis v. Golden Partners, Inc.

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE

         Currently before the Court is a Motion for Summary Judgment (Doc. 22) filed by Defendant Golden Partners, Inc. ("Golden Partners"). Golden Partners also filed a Statement of Undisputed Material Facts. (Doc. 24). Plaintiff Jimmy Davis filed a Response in Opposition (Doc. 25) and a Response to Golden Partners' Statement of Undisputed Material Facts, which included his own Statement of Uncontroverted Facts. (Doc. 26). Golden Partners then filed a Reply (Doc. 29) to Mr. Davis's Response and a Response (Doc. 30) to Mr. Davis's statement of uncontroverted facts. For the reasons explained below, the Court DENIES Golden Partners' Motion for Summary Judgment.

         I. FACTUAL BACKGROUND

         Golden Partners is a corporate franchisee of several Golden Corral restaurants in Arkansas and Missouri.^[1] At all times relevant to this action, Mr. Davis worked at the Golden Corral restaurant in Rogers, Arkansas. Mr. Davis has tested positive for human immunodeficiency virus ("HIV"), and Golden Partners concedes for the purposes of its Motion for Summary Judgment that Mr. Davis is a "qualified individual" with a "disability" as those terms are defined under the Americans with Disabilities Act ("ADA"). See 42 U.S.C. §§12102(1), 12111(8).

         A. Mr. Davis's Employment and Termination

         Mr. Davis started with Golden Partners as a server and, at the time of his termination, was enrolled in Golden Corral's management training program. Mr. Davis's supervisor at the management training program was Jon Fritchey. Mr. Davis scheduled a vacation from Monday, September 4, 2017, until Wednesday, September 13, 2017. Golden Partners agreed to work around Mr. Davis's planned vacation to facilitate his enrollment in the management training program. When he returned from vacation, Mr. Davis was scheduled to work at the Golden Corral in Tulsa, Oklahoma, on Thursday, September 14, 2017. Mr. Davis took Mr. Fritchey's personal laptop and a food safety book with him on vacation. (Doc. 30, p. 16).

         Shortly after his scheduled vacation began, Mr. Davis sent a text message to Mr. Fritchey informing him that his vacation had been impacted by Hurricane Irma. Mr. Davis asked Mr. Fritchey if he could return to work early on Monday, September 11, 2017, and Mr. Fritchey replied, "Yes, I'll adjust your schedule." Mr. Davis did not respond to this text message.

         Mr. Fritchey then sent a text message to Mr. Davis on Sunday, September 10, 2017, and requested that Mr. Davis return the food safety book when he returned to work on Monday, September 11, 2017. Mr. Davis did not respond to this text message. Mr. Davis did not report to work that Monday. At 10:29 p.m. on Tuesday, September 12, 2017, Mr. Fritchey sent Mr. Davis the following text: "As I'm preparing for the meeting tomorrow, I realized I haven't heard from you at all. I hope everything is ok. I will see you at 9 am in the morning." Mr. Davis did not respond to this text message, and Mr. Davis had not contacted anyone with Golden Partners to inform them that he would not be at work on Monday or Tuesday of that week after all.

         When Mr. Fritchey came to work on Wednesday, September 13, 2017, he realized that Mr. Davis was not there and sent another text to him, which said, "Are you ok? Hadn't heard from you." Mr. Davis did not respond to this text and did not contact anyone at Golden Partners to notify them that he would not be coming to work.

         Mr. Davis was originally scheduled to return from his vacation on Thursday, September 14, 2017, and he did not appear for work that day either. Mr. Davis did not contact Mr. Fritchey or anyone else at Golden Partners to notify them that he would not appear for work as scheduled. Based upon Mr. Davis's failure to report to work and his failure to notify anyone of his inability to report to work, Mr. Fritchey testified that he made the decision to terminate Mr. Davis on Thursday evening. That same night, Mr. Fritchey called his supervisor, Roger Schmidt, to discuss his decision.

         The next morning, Friday, September 15, 2017, at 7:35 a.m. Mr. Fritchey sent the following email to Golden Partners' payroll department:

Jimmy took a few days off starting 9/3/17. We assume he is not coming back. He has basically disappeared. So no more pay. I will term him in all pay this weekend.

(Doc. 24-2, p. 11). Two minutes later, Mr. Fritchey emailed Golden Partners' security department and asked them to deactivate Mr. Davis's security code. (Doc. 24-4). Then, at 9:09 a.m. on the same day, Mr. Fritchey sent Mr. Davis the following text message:

Really need to hear from you. If you just decided that this was not what you want, which would really surprise me. If something has happened, you need to let me know. I'm sure we can figure this out.

(Doc. 24-1, pp. 96-97). At his deposition, Mr. Fritchey testified that Mr. Davis had been terminated for "about two and a half hours" when the 9:09 a.m. text was sent to Mr. Davis on Friday morning. (Doc. 26-1, p. 56).

         Mr. Davis sent the following response at 11:25 a.m. the same day:

I can't talk at the moment but I would like to stay. Yes I'm going through some personal issues right now that has [sic] blindsided me and did not want to bring them up there with me. If you could give me until Wednesday I'd be more than willing to return. I want to talk to you but at this moment I'm not able to.

(Doc. 24-1, p. 98-100). The following exchange then ensued:

• Mr. Fritchey: "Ok give me a call as soon as you can."

• Mr. Davis: "Will do. Thank you for reaching out to me I felt like I was backed into a corner with no where to turn. I don't have to[o] many people in my life that reaches [sic] out to me so thank you."

• Mr. Fritchey: "I just need to hear from you and know what has happened."

• Mr. Davis: "K I will call you later this evening ....”

         Mr. Fritchey testified at his deposition that he did not inform Mr. Davis about his termination during that exchange because he ...