Mondaine v. American Drug Stores, Inc.

• Decision Date: 11 January 2006
• Docket Number: No. CIV.A. 04-2351-KHV.,CIV.A. 04-2351-KHV.
• Parties: Zenobia MONDAINE, Plaintiff, v. AMERICAN DRUG STORES, INC. d/b/a Osco's Drug Store # 5161, and Damon Shilhanek, Defendants.
• Court: U.S. District Court — District of Kansas

408 F.Supp.2d 1169

Zenobia MONDAINE, Plaintiff, v. AMERICAN DRUG STORES, INC. d/b/a Osco's Drug Store # 5161, and Damon Shilhanek, Defendants.

No. CIV.A. 04-2351-KHV.

United States District Court, D. Kansas.

January 11, 2006.

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George E. Kapke, Jr., Joseph H. Knittig, Paul D. Seyferth, Seyferth Knittig LLC, Kansas City, MO, for Plaintiff.

Catesby A. Major, Elaine D. Koch, Sarah N. Swatosh, Bryan Cave LLP, Kansas City, MO, Eric W. Smith, E.W. Smith Employment Law, LLC, Overland Park, KS, for Defendants.

MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE

VRATIL, District Judge.

Zenobia Mondaine filed suit against her former employer American Drug Stores, Inc. d/b/a Osco's Drug Store # 5161 ("Osco") and her former supervisor at Osco, Damon Shilhanek. Plaintiff asserts claims for retaliation under 42 U.S.C. § 1981, the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Family And Medical Leave Act, 29 U.S.C. § 2611 et seq. ("FMLA"), and the Americans With Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Plaintiff also asserts claims for substantive violations of the FMLA and ADA. This matter is before the Court on Defendants' Motion For Summary Judgment (Doc. # 63) filed September 2, 2005. For reasons stated below, defendant's motion is sustained in part.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir.1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on its pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

"[W]e must view the record in a light most favorable to the parties opposing the motion for summary judgment." Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the nonmoving party's evidence is merely colorable or is not significantly probative. Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are uncontroverted, deemed admitted or, where disputed, viewed in the light most favorable to plaintiff, the non-movant.¹

Zenobia Mondaine is a 46-year old African-American female. On November 5 2001, plaintiff began working for Osco as a scan coordinator at Osco Store 5161 in Leawood, Kansas. Plaintiff was required to work at least 28 hours a week to retain her benefits through Osco. Plaintiff worked 40 hours and as many as 42 hours a week. As scan coordinator, plaintiff changed merchandise prices, inserted new merchandise items on store shelves, and conducted audits to determine whether the prices displayed on merchandise matched the prices shown on the computer system. Plaintiff also performed general clerk duties such as customer service, general housekeeping and stocking.

Shortly after plaintiff started at Osco, she advised Damon Shilhanek, market manager for the Kansas City area and general manager of Store 5161, that she wanted to work days because she had glaucoma.² Plaintiff worked as the scan coordinator for Store 5161 from November 5, 2001 through mid-January of 2003.

On October 7, 2002, Shilhanek gave plaintiff a Corrective Action Associate Review ("CAAR") for excessive tardiness. Shilhanek noted that in the month of September alone, plaintiff had arrived to work late 14 times and from April to September of 2002, she had arrived to work late 79 times. Plaintiff signed the CAAR and did not note anything in the section titled "Associate Explanation and/or Response Concerning Current Review." In her deposition, plaintiff testified that she did not think that the numbers in the CAAR were correct, but that she did not know. Plaintiff told Shilhanek that if she had a business and he had been absent that many times, she would let him go.

On October 7, 2002, Shilhanek also gave plaintiff a CAAR for insubordination. Shilhanek noted that the CAAR was for three separate incidents:

• on September 30, plaintiff argued with Shilhanek and Bob Tuck (another manager) about making signs, saying that it wasn't her job;

• on October 6, plaintiff refused to follow a work order given to her by Terina Endecott; and

• on October 6, plaintiff changed her work schedule without management approval.

Plaintiff noted on the CAAR that she did not refuse to follow a work order and that Endecott was harassing her. Plaintiff refused to sign the CAAR.

Osco periodically audited plaintiff's performance as scan coordinator. When plaintiff started the job, Shilhanek explained that she needed to pass audits to keep her job. On December 12, 2002, plaintiff scored 89 on an audit, below the district standard of 95.³ Shortly thereafter, plaintiff told Shilhanek that because of a lack of cooperation from other employees and because her feet had been hurting, she wanted to work 32 hours per week. Because plaintiff was unable to perform the functions of scan coordinator in 32 hours per week, Shilhanek assigned her to a clerk position.

On January 17, 2003, Osco hired Inna Verzhbytska and plaintiff began performing only general clerk functions. Scan coordinators are paid on a higher wage scale than clerks, but Shilhanek allowed plaintiff to retain her scan coordinator salary. As a clerk, plaintiff's duties included cleaning, stocking, serving as a cashier, doing other odds and ends and "fronting and facing."⁴

In April of 2003, plaintiff had a medical condition which prevented her from lifting more than 25 pounds. On April 22, 2003, John Svoboda, a supervisor at Store 5161, asked plaintiff to assist a customer who had purchased a patio umbrella which weighed more than 25 pounds. Svoboda loaded the umbrella on a dolly, but it fell off and hit plaintiff in the stomach. Plaintiff told Svoboda that she could not take the umbrella because it was too heavy, but Svoboda insisted. Plaintiff tore her rotator cuff while trying to wheel the umbrella to the customer's car. Because of her injuries, plaintiff missed work from April 22 to 24, 2003. Svoboda completed a workers' compensation form regarding the incident. Osco's Benefits Department informed Shilhanek that plaintiff was not eligible for worker's compensation because she did not miss enough work.

Shortly after plaintiff returned to work, she developed severe foot problems. On one occasion between April 25 and July 13, 2003, plaintiff told Shilhanek about her foot problems and asked him about FMLA leave. Under Osco's policy, an oral request is sufficient to trigger the FMLA leave procedure. Shilhanek, however, simply told plaintiff that she did not qualify.⁵ Plaintiff informed Shilhanek that she might file a worker's compensation claim in connection with her foot problems. Shilhanek asked plaintiff two or three times if she really wanted to do that and told her she would regret it.⁶ Shilhanek later reprimanded plaintiff for moving too slow.

From February through June of 2003, plaintiff worked 28 to 32 hours per week as a clerk. On July 13, 2003, a non-work day, plaintiff was involved in a car accident. On September 30, 2003, plaintiff had foot surgery. From July 14 through November 26, 2003, plaintiff was absent from work on paid disability leave.

Plaintiff submitted a worker's compensation claim relating to the injuries which she sustained in the car accident and while trying to move the patio umbrella.⁷ Osco maintained an absence calendar for 2003 which indicates that from July 15 through the end of 2003, plaintiff was off work due to an injury. The absence calendar form states:

Please use this log to track any reason for tardiness or absence. Include the date of the absence, the reason, and whether the time qualifies for FMLA status. If an absence qualifies for FMLA status, you must notify the associate that date(s) will count toward their FMLA leave and make sure the appropriate documentation is on file. For FMLA leaves, indicate one of the following reasons: (1) adoption or foster care of a...