Harvey v. Am.'s Collectibles Network Inc
| Decision Date | 20 January 2011 |
| Docket Number | No. 3:09-CV-523,3:09-CV-523 |
| Parties | ETHEL HARVEY, Plaintiff, v. AMERICA'S COLLECTIBLES NETWORK, INC., d/b/a JEWELRY TELEVISION, Defendant. |
| Court | U.S. District Court — Eastern District of Tennessee |
This civil action is before the court for consideration of "Defendant's Motion for Summary Judgment" [doc. 13]. Plaintiff has filed a response in opposition [doc. 24], and defendant has submitted a reply [doc. 30]. Oral argument is not necessary, and the motion is ripe for the court's determination. For the reasons that follow, the motion will be granted, and this case will be dismissed.
Plaintiff has brought suit for alleged age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Plaintiff has also alleged causes of action under the Tennessee Disability Act ("TDA"), 1 Tenn. Code Ann. § 8-50-103, the Tennessee Human Rights Act ("THRA"), 2 Tenn. Code Ann. § 4-21-302 et seq. and § 4-21-401, and claims under Tennessee common law for retaliatory discharge and outrageous conduct.
Plaintiff began working as a shipping agent for defendant on January 10, 2005; she was 69 years old when she was hired. She left defendant's employment on May 4, 2009, at the age of 73. As a shipping agent, plaintiff packed and shipped jewelry orders. At the time she was hired, plaintiff worked a 12-hour shift, which she did for 24 days before she asked to be placed on an 8-hour shift. The request was granted, and plaintiff began working an 8-hour shift. She testified in her deposition that the need for the change was the "general fatigue" of working a 12-hour shift. Plaintiff worked the 8-hour shift first on days and then on a night shift. At plaintiff's request, she was placed back on the day shift on May 5, 2008, still working an 8-hour shift. The change was to facilitate better sleeping for the plaintiff.
Beginning in March 2006, plaintiff received approval for intermittent FMLA leave for migraine headaches, which she could suffer several times per month. She provided initially a letter from a Dr. Hetrick that was renewed each year. Her FMLA leave for migraine headaches was renewed in March 2009 with a certification by Dr. Hetrick. Plaintiff also provided a letter from a Dr. Rist. Letters from both doctors were provided by plaintiff in June 2008 to excuse her from working mandatory overtime. The letter from Dr. Rist, dated June 18, 2008, referenced that plaintiff has neurodermatitis and stated that "it is imperative that she work no more than a regular daily shift for five days a week." The letter from Dr. Hetrick, dated June 20, 2008, referenced plaintiff's migraine headaches and "recommend[ed] that [plaintiff] not be required to work more than 8 hours per day or 40 hours per week."
Effective March 1, 2009, defendant initiated a point system concerning hourly attendance. Points are assigned based upon the amount of time missed. For missing up to half a shift, 0.5 point is assigned. Once 10 points have been accumulated, termination results.
On March 10, 2009, plaintiff's entire department began working 10-hour shifts and a 37.5 hour workweek. Defendant points out that in reality employees work 9 ½ hours for three days and 9 hours on the fourth day. Once this change was made, 8-hour shifts were no longer available in the shipping department. Harvey started working the 10-hourshifts. From March 12-29, 2009, plaintiff was absent for gallbladder surgery. She returned March 30, 2009, and worked the 10-hour shifts.
According to plaintiff, after she returned from her surgery absence, she met with Omar Tekin and Linda Brack. At the relevant time, Brack was plaintiff's supervisor, and Tekin was the shipping manager. Plaintiff testified that when she returned and worked the longer shifts she suffered a migraine and went to her doctor who asked her if she was still working 8-hour shifts. She told him that she was not. After that she met with Brack and Tekin. Plaintiff's testimony is that Tekin threw the letter back at her saying they did not take doctor's letters. Brack and Tekin both testified that Human Resources ("HR") through Natalyn Webster had responsibility for addressing physician letters and restrictions.
The deposition testimony regarding the June 2008 letters is rather confusing. Plaintiff testified that Brack told her she did not have a copy of the letters, though plaintiff says she did not believe her since plaintiff had given a copy to her prior supervisor, Yvonne. Plaintiff also testified that she had kept a copy of the letters but she made the decision not to bring them to Brack's attention, though Brack said she had never seen them. Plaintiff could not recall whether she told Webster anything about the letters. Plaintiff then stated that she thought she told Webster the letters were on file. Both Brack and Webster testified that they had never seen the June 2008 letters.3 When asked at her deposition why she did not bring another copy of the letters in, plaintiff said, "Because I left."
After a break, plaintiff wanted to return to the issue of the letters. She testified that they were originally provided to keep her from working mandatory overtime and the letters state she should work 8 hours. Plaintiff then stated that she did give a copy of the letters to Brack after she gave them to Yvonne, though she did not remember when. Plaintiff further stated that originally the letters were related to mandatory overtime, but right before she left she gave them to Brack who gave them to Tekin. That is when he "throwed them back across the desk at me." Plaintiff testified that she gave the letters to Brack only once, but she was not sure whether it was after she returned from gallbladder surgery. However, she stated that after she returned from surgery and had the meeting with Tekin and Brack, she gave the letters to Brack that morning or the day before.4
Brack sent an email to Webster in the HR Department about plaintiff's request for an 8-hour shift on April 21, 2009. A meeting was scheduled for April 22, 2009, to include plaintiff, Brack, and Webster. Plaintiff testified in her deposition that she seemed to recall a meeting with Webster before she left the company, but she did not remember what it was about. She did not recall what was stated in the meeting or who was present. Plaintiff stated, "I vaguely remember being in there, but I don't remember what I went in there for. Plaintiff did recall:
Q. Do you remember Ms. Webster asking you what condition you had that prevented you from working more than eight hours a day?
A. Yes. I told her I had migraine headaches, and from--I had stress from the job. I went to a dermatologist over stuff on my head, and he said it was from stressing over work. She knows that.
Q. And you told Ms. Webster this in this meeting?
A. I may have. That may have been what it was about, but I don't know. I don't remember.
Webster testified that at the meeting on April 22 plaintiff kept saying it was her health that prevented her from working a 10-hour shift. Webster asked plaintiff to get specific information from her doctor so that options could be considered. Webster offered that day to look at other positions in the company and with interviewing skills, but told the plaintiff that until she obtained the information from her doctor she did not know what other options there were.
Brack testified that at the April 22 hearing plaintiff was given the option of looking for a position within the company that would meet her 8-hour shift request but that more information was needed from her doctor. Brack stated that Webster gave plaintiff the directives concerning obtaining the information from a doctor. Brack further testified that Webster specifically asked plaintiff what condition prevented her from working the 10 hours, and plaintiff never responded. Both Brack and Webster testified that a part-time position in the customer care department was offered to plaintiff, which she immediately rejected.
On April 27, 2009, Brack sent an email to Webster stating as follows:
Ethel Harvey said that she can not get a doctors note stating she can work over 8 hours. She wishes to be terminated after she goes home early for 20 days (10 points). She said she can draw unemployment after a waiting period. Do we have any options for her at this point? Also, did we ever see the note that statesshe cannot work over 8 hours? I know that I didn't. Does such a note exist?
When asked about this email, Webster stated,
Plaintiff worked several days leaving early and on May 4, 2009, submitted her letter of resignation. She had asked for a voluntary layoff, but defendant refused to do that.
Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party may discharge its burden by demonstrating that the non-moving party has failed to establish an essential element of that party's case for which he or she bears the ultimate burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party need not support its motion with affidavits or other materials negating the opponent's claim. Id. at 323. Although the moving party has the initial burden, that burden may be discharged by a "showing" to the district court...
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