Equal Emp't Opportunity Comm'n v. Dolgencorp, LLC

• Decision Date: 07 July 2016
• Docket Number: No.: 3:14-CV-441-TAV-HBG,: 3:14-CV-441-TAV-HBG
• Citation: 196 F.Supp.3d 783
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Linda K. Atkins, Intervening Plaintiff, v. DOLGENCORP, LLC, Defendant.
• Court: U.S. District Court — Eastern District of Tennessee

196 F.Supp.3d 783

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,andLinda K. Atkins, Intervening Plaintiff,

v.DOLGENCORP, LLC, Defendant.

No.: 3:14-CV-441-TAV-HBG

United States District Court, E.D. Tennessee.

Filed July 7, 2016

Anica C. Jones, Mark H. Chen, Equal Employment Opportunity Commission, Nashville, TN, Faye A. Williams, Gerald L. Thornton, Markeisha Katera Savage, Equal Employment Opportunity Commission, Memphis, TN, for Plaintiff.

Jennifer B. Morton, Maha M. Ayesh, Law Office of Jennifer B. Morton, Knoxville, TN, for Intervening Plaintiff.

Stanley E. Graham, Bahar Azhdari, John E.B. Gerth, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN, for Defendant.

MEMORANDUM OPINION AND ORDER

Thomas A. Varlan, CHIEF UNITED STATES DISTRICT JUDGE

This civil action is before the Court on the following motions: (1) plaintiff's Motion for Partial Summary Judgment Regarding Defendant's Affirmative Defense Alleging the EEOC Failed to Conciliate in Good Faith [Doc. 24]; (2) defendant's Motion for Summary Judgment [Doc. 28]; (3) plaintiff and intervening plaintiff's (hereinafter "plaintiffs") Motion for Partial Summary Judgment [Doc. 31]; (4) defendant's Motion to Strike Declaration of Wanda Shown [Doc. 40]; (5) defendant's Motion to Strike Declaration of Katharine K. Kores [Doc. 47]; and (6) defendant's Motion to Permit the Deposition of Katharine Kores Out of Time [Doc. 57]. The parties filed responses and replies to the pending motions [Docs. 37–39, 49–55, 61, 63].

Having reviewed the parties' arguments, the record in this case, and relevant law, the Court will: (1) deny as moot plaintiff's Motion for Partial Summary Judgment Regarding Defendant's Affirmative Defense Alleging the EEOC Failed to Conciliate in Good Faith [Doc. 24]; (2) grant in part and deny in part defendant's Motion for Summary Judgment [Doc. 28]; (3) deny plaintiffs' Motion for Partial Summary Judgment [Doc. 31]; (4) deny defendant's Motion to Strike Declaration of Wanda Shown [Doc. 40]; (5) deny defendant's Motion to Strike Declaration of Katharine K. Kores [Doc. 47]; and (6) grant defendant's Motion to Permit the Deposition of Katharine Kores Out of Time [Doc. 57].

I. Background¹

In March 2009, intervening plaintiff, Atkins, was diagnosed with Type 2 diabetes [Doc. 31-4 p. 2; Doc. 31-13 p. 2]. In order to treat her diabetes, Atkins takes two types of insulin a total of four times per day [Doc. 31-4 p. 5; Doc. 31-13 p. 2]. Atkins's diabetes requires her to monitor what and when she eats [Doc. 31-4 pp. 42–43]. She is limited in her daily life activities because she must ensure she has access to insulin everywhere she goes [Id. ]. Atkins monitors her blood sugar level daily to ensure that it is neither two high nor too low, as either situation can have negative effects on her health [Id. at 5–7, 11, 17].

She commonly uses orange juice or candy bars to raise her blood sugar [Id. at 7–8].

Defendant, Dollar General, hired Atkins as a Sales Associate in August 2009 [Doc. 28-1 pp. 4, 6, 69]. The day Atkins completed her initial employment paperwork, she certified that she had reviewed a document outlining the physical requirements for working in defendant's store [Doc. 28-2 p. 51]. Immediately above her initials, Atkins certified that she reviewed the following policy statement:

If you are a person with a disability, as that term is defined by the Americans with Disabilities Act ("ADA") or other law, and you believe that you require an accommodation to perform the essential job functions outlined above, please contact the ERC at 1-888-237-4114 immediately.

[Id. ]. Atkins also received a copy of Dollar General's Employee Handbook, which includes defendant's policy on requests for accommodation [Doc. 28-1 pp. 5–11, 69–91]. The handbook states: "If you believe you require an accommodation in order perform your job, please speak with your manager, Human Resources, or contact the Employee Response Center" [Doc. 31-15 p. 4]. Another version of this policy states that an employee should "speak with your supervisor, Human Resources, or contact the Employee Response Center" [Doc. 31-9 p. 1]. Atkins knew she was diabetic a few months prior to completing her employment paperwork [Doc. 28-1 pp. 4, 6, 69; Doc. 31-4 p. 2].

During her employment with defendant from August 2009 to March 2012, Atkins received annual raises and was promoted to Lead Sales Associate, also known as "third key" [Doc. 31-3 ¶¶ 2–3; Doc. 31-6 p. 6; Doc. 31-13 p. 2]. The functions of this position include the regular duties of a sales associate plus many of the responsibilities of a manager, such as opening and closing the store, handling money, and having access to the store safe [Doc. 31-3 ¶ 2; Doc. 31-6 p. 7; Doc. 31-11]. Atkins's supervisor, Wanda Shown, found Atkins to be a good worker and to be very trustworthy [Doc. 31-3 ¶ 2].

While employed with defendant, Atkins regularly brought and stored insulin and orange juice in the employee break room [Doc. 28-1 p. 109; Doc. 31-4 p. 9]. The break room was about thirty yards from the front of the store and the cash registers [Doc. 28-1 pp. 11–12]. Atkins gave herself insulin injections several times a day while on break during working hours [Doc. 31-3 ¶ 5].

Atkins commonly spoke with Shown about her diabetes and Shown was aware that Atkins would take insulin and test her blood sugar throughout the day [Doc. 21-8 pp. 48–49; Doc. 31-3 ¶¶ 4–6]. Shown's mother is also diabetic, and for this reason, Shown was aware of the possible life-threatening consequences of a hypoglycemic episode from failing to properly control blood sugar levels [Doc. 31-3 ¶ 6].

Atkins spoke to Shown on several occasions about her need to keep a snack or beverage at the register while she worked to prevent a possible hypoglycemic episode [Id. ¶ 7]. Atkins emphasized the need for this particularly while working alone in the store [Id. ]. Mary Jane Ray, Atkins's former co-worker, also confirms that these conversations took place [Doc. 31-2 ¶ 4]. In response to this request, Shown told Atkins that it was against store policy to keep food or drink at the register and that if she was going to keep such items at the register, she should be careful to avoid being seen violating policy on the cameras [Doc. 31-3 ¶ 8].

Scott Strange, District Manager for defendant, acknowledges that is would be appropriate for an employee to make a verbal accommodation request from a supervisor [Doc. 31-6 pp. 2–3]. Strange, however, is not aware of any particular training or policy regarding a store manager's role in documenting a request for accommodation [Id. at 19]. Shown did not know that she could excuse Atkins from the policy prohibiting food or drink at the register and does not recall receiving training or instruction about defendant's obligation to provide employees with reasonable accommodations for health conditions [Doc. 31-3 ¶¶ 15–16]. For that reason, she did not tell Atkins to contact anyone else to discuss the accommodation request [Id. ¶ 15].

While working for defendant, Atkins would occasionally experience low-blood sugar episodes [Id. at 11]. These episodes occur suddenly and Atkins would experience symptoms such as difficulty seeing and shakiness [Id. ]. Typically when these episodes would occur, Atkins was not alone in the store at the cash register [Id. at 20, 38]. When other employees were in the store with her, she would counter the episodes by getting orange juice from her cooler in the break room at the back of the store [Id. ]. Approximately every two or three months, Atkins would need to go to the break room and drink her juice to prevent such an episode [Id. at 17]. She did this without issue and was never disciplined for retrieving her own juice while she worked [Doc. 28-1 p. 40].

On two occasions, Atkins experienced hypoglycemic episodes while working alone in the store [Doc. 31-13 p. 2]. One occasion occurred in late 2011 and the other occurred in early 2012 [Id. at 2–3; Doc. 31-4 p. 16]. During both episodes, Atkins was the only employee in the store, was working at the register, and had customers in line [Doc. 31-4 pp. 12–14]. Both times, she took a bottle of orange juice from the store cooler and drank from it [Id. ]. As soon as she was able, she rang up the juice at the register and paid with cash [Id. ]. She did not keep a receipt for the juice on either occasion [Id. at 14].

Even though it was against company policy, Atkins would occasionally store groceries she purchased in defendant's display cooler near the front of the store [Id. at 18–23]. She did not, however, store juice in this cooler [Id. at 23]. Atkins also wore an apron with pockets as part of her uniform while she worked, but did not attempt to keep juice in it [Doc. 28-1 pp. 15–17]. She asserts it would not be conducive to do so because she was constantly moving around at work and she always had juice in the break room [Id. ].

Defendant has policies in place to deter "shrink," the retail term for store inventory that is lost or stolen [Doc. 28-1 pp. 50–51; Doc 28-3 p. 4]. One source of shrink is "grazing," which is when employees consume merchandise in the store without paying for it first [Doc. 28-1 p. 93]. Defendant's Employee Purchase Policy includes the following provisions, among others: (1) that a member of management must ring up employee purchases; (2) employees—including lead sales associates—are not allowed to ring up their own purchases; (3) employees are not allowed to hold merchandise for purchase at a later time; (4) merchandise must be paid for before it is used or consumed; (5) the receipt for purchase must be given to the employee and the employee must tape the receipt to the item [Id. at 98]. Atkins received a memorandum on grazing and she acknowledges that she was aware that defendant had a policy prohibiting it [Id. at 41–42, 94].

Atkins contends that she decided to commit a grazing violation instead of going to the break room to get her own orange juice on the two circumstances previously...