Collins v. Compass Grp., Inc.

• Citation: 965 F.Supp.2d 1321
• Decision Date: 16 August 2013
• Docket Number: Case No. 2:10–cv–02689–JEO.
• Parties: Robert COLLINS, Plaintiff, v. COMPASS GROUP, INC., and Morrison Management Specialists, Inc., Defendants.
• Court: U.S. District Court — Northern District of Alabama

965 F.Supp.2d 1321

Robert COLLINS, Plaintiff,
v.
COMPASS GROUP, INC., and Morrison Management Specialists, Inc., Defendants.

Case No. 2:10–cv–02689–JEO.

United States District Court,
N.D. Alabama,
Southern Division.

Aug. 16, 2013.

[965 F.Supp.2d 1324]

Daniel E. Arciniegas, Jon C. Goldfarb, L. William Smith, Wiggins Childs Quinn & Pantazis LLC, Birmingham, AL, for Plaintiff.

William K. Hancock, Galloway Scott Moss & Hancock LLC, Aaron G. McLeod, Adams & Reese LLP, Birmingham, AL, Lauren L. Tafaro, Leslie A. Lanusse, Adams & Reese LLP, New Orleans, LA, for Defendants.

MEMORANDUM OPINION
ABDUL K. KALLON, District Judge.

This case involves claims under the Americans With Disabilities Act, the Age Discrimination in Employment Act, the Alabama Age Discrimination in Employment Act, and the Family and Medical Leave Act. The defendants filed a motion for summary judgment. (Doc. 18). On June 14, 2013, the magistrate judge assigned this case entered a Report and Recommendation, finding that the motion for summary judgment was due to be granted in part and denied in part. (Doc. 26). Defendants filed an objection to the Report and Recommendation. (Doc. 27).

The court has considered the entire file in this action together with the magistrate judge's Report and Recommendation and Defendants' objections and has reached an independent conclusion that the magistrate judge's Report and Recommendation is due to be adopted and approved. Accordingly, the court hereby ADOPTS and APPROVES the findings and recommendation of the magistrate judge as the findings and conclusions of the court. In accordance with the recommendation, the defendants' motion for summary judgment (doc. 18) is due to be granted in part and denied in part. Specifically, summary judgment is due to be granted as to plaintiff's ADEA discrimination claim (count 1); AADEA discrimination claim (count 2); ADEA retaliation claim as it pertains to plaintiff's alleged retaliatory write-ups in count 3; AADEA retaliation claim (count 4); FMLA interference claim (count 7); and, FMLA retaliation claim (count 8). Summary judgment is due to be denied as to plaintiff's ADEA retaliation claim to the extent it is premised on his termination (count 3); ADA discrimination claim as it pertains to his work schedule and termination (count 5); and, ADA retaliation claim (count 6). An appropriate order will be entered.

ORDER

In accordance with the Memorandum Opinion entered contemporaneously herewith, the defendants' motion for summary judgment (doc. 18) is GRANTED IN PART AND DENIED IN PART.

REPORT AND RECOMMENDATION JOHN E. OTT, United States Chief Magistrate Judge.

This case is before the court on the Motion for Summary Judgment filed by Compass Group, Inc. (“Compass”) and Morrison Management Specialists, Inc. (“Morrison”) (collectively “defendants”)

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and their evidence and memorandum in support thereof. (Docs. 18–20).¹ Plaintiff, Robert Collins (“plaintiff” or “Collins”), has filed a response in opposition to defendants' motion and defendants have filed a reply brief. (Docs. 23 & 24). Upon consideration of the record and the arguments of counsel, the undersigned hereby recommends that the motion for summary judgment be granted in part and denied in part.

I. BACKGROUND A. Procedural History

Plaintiff alleges Compass and Morrison discriminated against him premised on his age and disability and that they interfered with his right to intermittent leave under the Family and Medical Leave Act (“FMLA”). (Doc. 1). He specifically alleges violations of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq., the Alabama Age Discrimination in Employment Act (“AADEA”), ALABAMA CODE § 25–21–20 et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., as amended by the ADA Amendments Act of 2008 (“ADAAA”), and the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq.( Id.) Defendants move for summary judgment on all claims. (Doc. 18).

B. Factual History²1. Plaintiff's Basic Employment History with Defendants

Plaintiff worked for Morrison, a subsidiary of Compass, from September 2007 until July 28, 2010, as a dishwasher.³ (Doc. 19–1 at 10, 14, 19–21, 28; Doc. 20 at ¶ 1). He was assigned to retrieve dishes and trays from patient floors and then scrape, wash, and store them. (Doc. 19–1 at 21).

2. Plaintiff's Dialysis and First Request for Accommodation

Plaintiff suffered from kidney failure and required dialysis treatment three days per week—Tuesday, Thursday, and Saturday. ( Id. at 28). He was scheduled to work from 6 a.m. until 2 p.m. to accommodate his dialysis. ( Id. at 39). However, Collins had difficulty working full time due to the weakness he experienced from dialysis, and, in March 2009, he asked Executive Chef Blake Wilbanks if he could change his schedule from full time to part time, only working Mondays, Wednesdays, and Fridays. ( Id. at 26–7; Doc. 23–4 at 3). Wilbanks told Collins that he “would do it for him, because [he] wanted to try to work with his [plaintiff's] situation,” but he also said that he did not have to adjust an employee's schedule. (Doc. 19–5 at 43). Although he was not in charge of adjusting plaintiff's status to part time, he did arrange for plaintiff to be off on Tuesdays

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and Thursdays and to work as few Saturdays as possible. ( Id. at 43–44).

3. Sous Chef Davis's Ageist Comments Toward Plaintiff

Cornelius Davis was the sous chef at St. Vincent's East while plaintiff worked there as a dishwasher. (Doc. 19–4 at 6, 9). Plaintiff testified that Davis would call him “old man,” tell him “to go somewhere and sit down,” and tell him that he was as old as Davis's grandfather. (Doc. 19–1 at 50). According to plaintiff, Davis also said that “he didn't want the old guy working around there,” and that “he was going to get rid of [plaintiff].” ( Id. at 52–53, 55–56). Additionally, plaintiff testified that Davis said, “old guy go on in the back and do your work.” ( Id. at 55). These comments are corroborated by former employee Tyrone Ball who also stated that he heard Davis “talk about how he was going to get rid of ... Collins,” referring to him as an “ ‘old man’ who he needed to get rid of.” (Doc. 23–1 at 2, ¶ 2).

Plaintiff testified that he complained three times about Davis's ageist comments toward him.⁴ (Doc. 19–1 at 49–50). The first complaint was to the director, known to plaintiff as “Mr. Richard.” ⁵ ( Id. at 49). The other two complaints were made to Director of Food Services Greg Richmond (doc. 19–7 at 10), once in September 2009 and another time “just before” he was fired at the end of July 2010. (Doc. 19–1 at 50–51). Following plaintiff's complaints in 2009, Wilbanks spoke with Richmond and informed him “that he had spoken with Cornelius [Davis] and Robert [Collins] and that things were okay.” (Doc. 19–7 at 68).

4. Plaintiff's Disciplinary Write–Ups

Plaintiff's employment file consists of multiple associate counseling reports (“write-ups” or “ACRs”), including the following:

(1) January 17, 2008, for failing to clock out on breaks ⁶ (doc. 19–11 at 33 of 40),

(2) December 9, 2008, for having eighteen tardies and two call-ins in a twelve-month period ⁷ ( id. at 34),

(3) August 11, 2009,⁸ for failing to clean the dishwasher and leaving it dirty ⁹ ( id. at 35),

(4) August 21, 2009, for failing to clean dishes and utensils for the tray line ¹⁰ ( id. at 36),

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(5) October 9, 2009, for having a 32–ounce Coca–Cola drink on his station ¹¹ ( id. at 37),

(6) December 21, 2009, for failing to ask permission to go on break, and for taking a 38–minute break instead of the assigned 15–minute break ¹² ( id. at 38), and

(7) December 21, 2009, for telling another supervisor, Michael Benson, that he was not his supervisor when Benson asked him a question ¹³ ( id. at 39).

Of these seven write-ups, plaintiff signed only the December 9, 2008 write-up and asserts that while the other six are marked that he refused to sign, he was not presented with these write-ups. Regarding his alleged refusal to sign six of the write-ups, plaintiff asserts that he did not receive them ( see doc. 19–1 at 66–81) and that he “ain't never refused to sign nothing [sic]” ( id. at 81).

5. Plaintiff's First EEOC Charge

On September 23, 2009, plaintiff filed his first charge with the Equal Employment Opportunity Commission (“EEOC”), alleging retaliation, age discrimination, and disability discrimination.¹⁴ (Doc. 19–2 at 1 of 78). In his charge, he complained of Davis's ageist comments, and he also wrote that, following his complaints regarding Davis's comments, he had “received written warnings on a continuing basis for misconducts that [he] did not commit or others have committed.” ¹⁵ ( Id.) The EEOC sent notice of the charge of discrimination to Morrison's senior vice president, located in Atlanta, Georgia, on September 31, 2009. (Doc. 19–12 at 3 of 38). On July 8, 2010, the EEOC notified both Collins and an attorney for Compass in Atlanta, Georgia, that it had completed its investigation into Collins's allegations and determined that it was “unable to conclude that the information obtained establishes violations of the statutes.” ( Id. at 6).

6. Plaintiff's Second Request for a Reasonable Accommodation

Wilbanks, who originally accommodated plaintiff's scheduling, changed jobs within the company and no longer worked at St. Vincent's East as of July 2010. (Doc. 19–5 at 8). Following his departure, Davis did the scheduling for a short time. (Doc. 19–1 at 30; 19–7 at 80). Plaintiff asked Davis

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if he could work Mondays, Wednesdays, and Fridays to accommodate his dialysis schedule, and, according to plaintiff, Davis responded by saying, “ ‘well, I can replace you—you can have it off permanent, I can replace you with a younger guy.’ ” (Doc. 19–1 at 97–98). Plaintiff also alleges that Davis said, “they wasn't [sic] going to have no [sic] part-time working [sic].” ( Id. at 27).

7....