Aman v. Dillon Cos., Inc.
| Decision Date | 11 March 2014 |
| Docket Number | Civil Action No. 11-cv-02973-JLK |
| Parties | MOE AMAN (f/k/a/ MOHAMMED AMAN), Plaintiff, v. DILLON COMPANIES, INC. d/b/a KING SOOPERS, a Kansas Corporation Defendant. |
| Court | U.S. District Court — District of Colorado |
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR
This grocery store employment discrimination dispute is before me on a Motion for Summary Judgment, Doc. 25, filed by Defendant Dillon Companies, Inc. d/b/a/ King Soopers. For the reasons that follow, King Soopers' motion is GRANTED as to the reassignment claims and the ADA discrimination based discharge claim, and otherwise DENIED as to all remaining claims.
Mr. Aman states thirteen claims for relief under Title VII, 42 U.S.C § 1981, and the American with Disabilities Act (42 U.S.C. § 12101 et. seq.) (the "ADA"). Because Mr. Aman's causes of action arise under federal law, I have original jurisdiction per 28 U.S.C. § 1331. I also have jurisdiction under 28 U.S.C. § 1343(a) because Mr. Aman seeks relief for the alleged deprivation of his federally protected rights and privileges. The parties stipulate that a substantial part of the events or omissions giving rise to Mr.Aman's claims occurred in Colorado, therefore venue is proper under 28 U.S.C. § 1391(b)(2) . Compl. ¶ 2; Answer ¶ 2.
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adamson v. Multi Community Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008). A disputed fact is material if it could affect the outcome of the suit under the governing law. Adamson, 514 F.3d at 1145. A factual dispute is genuine if a rational jury could find for the nonmoving party on the evidence presented. Id. The moving party bears the burden of showing that no genuine issue of material fact exists. Adamson, 514 F.3d at 1145. Where, as here, the moving party does not bear the ultimate burden of persuasion at trial, it may satisfy its burden by showing a lack of evidence for an essential element of the nonmovant's claim. Id. In deciding whether the moving party has carried its burden, I may not weigh the evidence and must view the evidence and draw all reasonable inferences from it in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Adamson, 514 F.3d at 1145. Neither unsupported conclusory allegations nor a mere scintilla of evidence in support of the nonmovant's position are sufficient to create a genuine dispute of fact. See Mackenzie v. City and County of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005); Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997).
Moe Aman immigrated to the United States from Ethiopia in 1999 and shortly thereafter became an employee of Defendant King Soopers. Ex. 1, 20:15-22:14. He worked for King Soopers for 7.5 years, from November 13, 2000 until his termination on May 27, 2008. King Soopers is a Colorado-based supermarket chain wholly owned by Dillon Companies, a Kansas corporation. Mr. Aman worked at two different King Soopers stores in Denver, Colorado during his employment. The relevant events to this case took place at Store # 5 under the management of Jack Ruby, an employee with a 39 year history at King Soopers, 14 of which as a store manager. Ex. 5, 5:10-6:21. Mr. Ruby has been the store manager at Store #5 for 12 years. Id.
For most of his tenure, Mr. Aman was employed at Store #5 as a part-time produce clerk. Per the produce clerk written job description, his duties in that role included lifting and carrying loads of produce, unloading delivery trucks, and stocking the produce department. Ex. 22 (). The testimony of Mr. Aman himself as well as others repeatedly confirms this paper requirement as also a requirement in fact. Ex. 1, 52:5-55:4 (); see also Ex. 5, 16:14-17:2 ().
Mr. Aman began working at Store #5 in February 2006. Initially, his supervisors were produce manager, Don Gordy, and assistant produce manager, Chris Bateson. Both are white males. Mr. Aman claims to have endured a litany of abuses at the hands of Messrs. Gordy and Bateman from the very start of his employment at Store #5. Mr.Aman alleges that while he received a warm welcome from all of the other employees present on his first day, Mr. Bateson refused to shake his hand. Ex. 1 at 129:6-13. He was told later that day by an African American employee that Mr. Bateson does "not like black people," and referred to them as "African monkey[s]." Id. at 129:11-21. Although apparently never called an "African monkey" by Mr. Bateson, once in early 2007 Mr. Bateson called him a "lazy African" because he mistakenly believed that Mr. Aman had left a shipment of strawberries unrefrigerated. Id. at 130:9-17;131:13-25. Also in early 2007, Mr. Gordy once called Mr. Aman an "African monkey while the two were working in the stockroom, and Mr. Gordy referred to him as an "African lion" sometime after that. Id. at 143:19-25; 144:1-9.
During this time period Mr. Gordy and Mr. Bateson allegedly twice changed Mr. Aman's schedule by taking hours away from Mr. Aman and giving them to an employee with less seniority and who also happens to be Mr. Ruby's nephew-in-law. Ex. 1 at 125:6-128:19. Mr. Aman later filed a grievance over these alleged changes with his union, the United Food and Commercial Workers Union. Ex. 17 at 1094.
According to Mr. Ruby and his assistant manager, Terri Smith, however, Mr. Aman had a history of misunderstanding how the King Soopers' scheduling system operated. Ex. 5 at 145:10-148:1 (); Ex. 9 at 58:15-60:21 (Ms. Smith describing incident where she had to explain how scheduling worked after Mr. Aman complained that his lack of hours was racially motivated). Ms. Smith, who is African American, attempted to explain to Mr. Aman that King Soopers allocates a specific number of hours per department for a schedulingperiod, and managers have an obligation under the collective bargaining agreement between the company and Union to ensure that all part-time employees get at least 20 hours per week. Ex. 9 at 58:19-60:18; see also Ex. 4 at 9:14-10:15 (assistant produce manager Robbie Casados describing how hourly employees select shifts and the hours allocation process for part-time employees). According to another hourly produce employee, Marcey Goldis, Ms. Smith provided additional training on selecting shifts to all of the produce employees to prevent further disagreement. Ex. 15 at 60:9-21 (Ms. Goldis describing Ms. Smith's re-training).
Additionally, Mr. Ruby attempted to explain how the scheduling system worked when Mr. Aman complained about his hours. Ex. 5 145:25-148:1. According to Mr. Ruby, Ms. Smith spent considerable time with Mr. Aman explaining the scheduling system to him and generally attempting to help him develop as an employee. Ex. 5 at 16:11-17:7. On December 4, 2007, the Union withdrew Mr. Aman's scheduling complaint, finding he was indeed offered the most possible hours available to him at the time. Ex. 17 at 1095, 1097.
Mr. Aman's relationship with Mr. Gordy came to a head on May 7, 2007 when Mr. Gordy pushed a cart into Mr. Aman and another employee in the store's stockroom. Ex. 1 (Behavior Notice statement). Mr. Aman was injured and Mr. Gordy was fired. Id. (reason for Mr. Gordy's discharge); Ex. 2 (Termination Form for Mr. Gordy). Mr. Aman suffered back problems from the incident and filed a workers' compensation claim. Ex. 1; Ex. 5 (Physician's Report of Worker's Compensation Injury). After a course ofvarious treatment, his appointed physician, Dr. Franklin Shih, concluded on October 11, 2007 that Mr. Aman had reached his Maximum Medical Improvement (MMI). Id. Dr. Shih diagnosed Mr. Aman with a Permanent Impairment to his back, and provided the following Permanent Restrictions: Lifting, carrying, pushing, and pulling all limited to no more than thirty pounds on an occasional basis. Id.
Despite his restrictions, Mr. Aman continued to work as a produce clerk throughout 2007. King Soopers' management provided accommodation for him during this time. Specifically, King Soopers allowed Mr. Aman to rely heavily upon "buddy lifts," by which another employee would aid him to move objects over 30 pounds. Ex. 5 at 27:4-28:14 (Mr. Ruby's description of Mr. Aman's accommodation with the "buddy lift"). In addition to this accommodation, Mr. Aman, because of his seniority, was often able to avoid heavy lifting by selecting shifts working in the "cut fruit" section of the produce department. Id. at 21:9-24:11 (Mr. Ruby describing the cut fruit position, how Mr. Aman could select this shift, and the lifting accommodations made during the cut fruit shift). The cut fruit shift did not require frequent lifting over 30 pounds. Id. Mr. Ruby and Ms. Smith were both aware of Mr. Aman's restrictions and accommodation. Id.; Ex. 10 at 10:25-11:1 (Smith deposition).
In March 2008 Mr. Aman obtained a second diagnosis by requesting an Independent Medical Examination (IME) through the workers' compensation program. Ex. 24 (request for IME); Ex. 25 at 2 (IME results). The IME, performed by a different, independent physician, Dr. John Tobey confirmed that Mr. Aman had reached MMI,recommended that the earlier restrictions should remain in place, and prescribed a pain management regimen. Ex. 25 at 3, 5.
King Soopers' Personnel Policies manual requires an employee assessment to be conducted after a determination of...
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