Stewart v. Happy Herman's Cheshire Bridge, Inc.

• Citation: 117 F.3d 1278
• Decision Date: 24 July 1997
• Docket Number: No. 96-8689,96-8689
• Parties: 6 A.D. Cases 1834, 23 A.D.D. 8, 10 NDLR P 247, 11 Fla. L. Weekly Fed. C 201 Terri L. STEWART, Plaintiff-Appellant, v. HAPPY HERMAN'S CHESHIRE BRIDGE, INC., Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1278

117 F.3d 1278

6 A.D. Cases 1834, 23 A.D.D. 8, 10

NDLR P 247,

11 Fla. L. Weekly Fed. C 201

Terri L. STEWART, Plaintiff-Appellant, v. HAPPY HERMAN'S CHESHIRE BRIDGE, INC., Defendant-Appellee.

No. 96-8689.

United States Court of Appeals Eleventh Circuit.

July 24, 1997.

Rose E. Goff, Atlanta, GA, for Plaintiff-Appellant.

Frank B. Shuster, Constangy Brooks & Smith, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT, Chief Judge, ANDERSON, Circuit Judge, and LAY ^*, Senior Circuit Judge.

HATCHETT, Chief Judge:

In this Americans With Disabilities Act (ADA) case we affirm the district court's grant of summary judgment to Happy Herman's Cheshire Bridge, Inc. (Happy Herman's), because Happy Herman's reasonably accommodated its former employee Teri Stewart, the appellant, and because Stewart failed to produce sufficient evidence of a triable issue on the question of whether Happy Herman's illegally retaliated against her. We also affirm the district court's award of sanctions and attorney's fees to Happy Herman's.

BACKGROUND

Happy Herman's, a small retail grocery store in Atlanta, has operated for twenty-two years and has approximately eighteen employees. In November 1991, Stewart applied for a part-time position at Happy Herman's. When General Manager David Levine interviewed Stewart, Stewart informed Levine that she had previously undergone pelvic surgery and could not stand for long periods of time or lift heavy objects. Stewart also indicated that if Happy Herman's hired her it would need to allow her to take frequent bathroom breaks. Stewart also inquired about the length of lunch breaks. According to Stewart, Levine replied that lunch breaks were "half an hour, but you will still have to get up and wait on customers." In addition, Levine reportedly told Stewart that she could take bathroom breaks as needed.

Levine soon hired Stewart as a part-time seasonal employee, and subsequently retained her as a permanent part-time employee. Stewart worked primarily as a cashier, four days a week for six to seven hours a day. Although Levine initially hired Stewart as a seasonal employee, Happy Herman's permitted her to participate in its health insurance plan because Stewart informed Levine that health insurance was very important to her.

Although Stewart now claims to be disabled, at the time she filled out her health insurance plan application, she answered "no" to the question, "are you currently hospitalized or disabled." In fact, Stewart suffered from a number of conditions arising from the radical pelvic surgery she underwent to combat invasive cervical cancer. These conditions include an inability to fully employ her bladder and chronic pain for which Stewart takes prescription medications. According to Stewart, her conditions make it impossible for her to stand for long periods without sitting, limit her ability to lift objects and cause her to urinate frequently.

During the period from November 1991 through April 1993, Stewart seemed to do well at Happy Herman's. She had some physical problems, but Happy Herman's management consented to every request she made for accommodations. For instance, when Stewart complained that she was unable to restock the drink cooler, Happy Herman's reassigned that duty to another employee. When Stewart asked for help carrying large bags of groceries, Happy Herman's provided it. When Stewart told Happy Herman's that she could not work additional hours, Levine did not discipline her or take any other adverse employment action. And when Stewart requested bathroom and cigarette breaks, Happy Herman's granted her requests. (On average, Stewart took four to six bathroom breaks, and five to seven cigarette breaks, per six-hour In addition to the foregoing, Stewart benefitted from Happy Herman's provision of a thirty minute paid lunch break to all of its cashiers. Stewart acknowledges, however, that the paid lunch break was often disturbed because of the need to assist customers at the cash registers. As a result, Stewart's paid lunch break generally lasted closer to twenty-five minutes.

                shift.)   Stewart admits that Happy Herman's also accommodated the needs of other employees with physical problems.  These accommodations included allowing an employee with knee problems to sit on a stool at his cash register, and allowing a diabetic employee to take her lunch break at times of her choosing in accordance with her medical needs
                

On April 27, 1993, Stewart's situation at Happy Herman's took a turn for the worse. Stewart's immediate supervisor, Guy Cassingham, approached her and told her that the paid lunch breaks would henceforth be fifteen minutes. According to Happy Herman's, Cassingham did so because Stewart's breaks were becoming excessively long--in the range of forty to fifty minutes. In response to the news about the changed break policy, Stewart promptly told Cassingham, "Yeah right, kiss my ass; sure." After ascertaining that Cassingham was serious and that the policy was being implemented at Levine's direction, Stewart responded, "Then he [Levine] can kiss my ass too."

At the end of her shift, Stewart went to see Levine and told him that fifteen minutes was not enough time to eat. Either later that day or the following day, Stewart also told Levine that the change in the lunch break policy was "causing her physical problems." It does not appear that Stewart was more specific about the nature of the physical problems--i.e., whether the new break policy aggravated conditions arising from her radical pelvic surgery or whether it caused new unrelated physical problems. Stewart did, however, attempt to give Levine a note from her doctor to buttress her claim. Levine, who was conducting a meeting in his office when Stewart approached him, refused the note at the time, although Stewart concedes that the note eventually ended up in her personnel file. ¹ Levine also declined to discuss the break policy with Stewart beyond simply telling her that the break policy had always provided for fifteen minutes of paid break time.

Following the exchange with Levine, Stewart discussed the fifteen minute break policy with her coworkers and told them of her desire to get a thirty minute paid break for all employees. According to Stewart, her coworkers "more or less nominated" her to pursue a thirty minute break policy. Stewart then proceeded to meet with several Happy Herman's management officials to discuss the break policy. During these meetings Stewart also attempted, largely without success, to raise other topics like the recycling of food, giving food to homeless shelters, a first-aid kit, a wet floor sign, a rain mat and "a number of other positive social changes."

On one of these occasions Stewart met with Ann Marie Moraitakis, a senior management official with supervisory responsibilities for all of Happy Herman's employees. Stewart told Moraitakis that she needed and wanted a thirty minute break because she couldn't eat within a shorter time period. Stewart also asked Moraitakis what the Happy Herman's policy was regarding breaks and asked Moraitakis to post the policy in writing. Moraitakis responded that the policy was that employees could take paid breaks of between fifteen and twenty minutes, or could clock out and take up to sixty minutes unpaid break time. Moraitakis also subsequently posted the break policy as Stewart requested.

The posted policy indicated that employees were entitled to a twenty minute paid break for an eight-hour shift. When Stewart later complained that the posted policy excluded her because she only worked a six-hour shift, Moraitakis amended the posted policy to read as follows:

THE FOLLOWING IS THE STATEMENT OF THE POLICY REGARDING MEAL BREAKS FOR EMPLOYEES, WITH WHICH YOU ARE EXPECTED TO COMPLY:

1. HAPPY HERMAN'S PROVIDES IT'S [sic] EMPLOYEES WITH ONE PAID TWENTY (20) MINUTE BREAK FOR MEALS PER SIX TO EIGHT HOUR SHIFT. EMPLOYEES DO NOT HAVE TO CLOCK OUT OR CLOCK IN TO TAKE THIS 20 MINUTE BREAK.

2. EMPLOYEES WHO WISH TO TAKE LONGER THAN 20 MINUTES FOR MEALS MAY DO SO ONLY UPON THE FOLLOWING CONDITIONS:

A) EMPLOYEES MUST CLOCK OUT AT THE BEGINNING OF THEIR MEAL BREAK AND CLOCK BACK IN AT THE END OF THEIR MEAL BREAK.

B) NO MEAL BREAK MAY EXCEED SIXTY (60) MINUTES.

3. REGARDLESS OF LENGTH OF MEAL BREAK, NO EMPLOYEE MAY TAKE MEAL BREAKS UNLESS THEY ARE SCHEDULED IN ADVANCE WITH SUCH EMPLOYEE'S SUPERVISOR.

The day after the policy was originally posted, Stewart issued a five-page flyer to all Happy Herman's employees. Stewart entitled the flyer "Food for Thought: The Fifteen Minute War." In the flyer Stewart alternately praised Happy Herman's for changing its policy and accused Happy Herman's of engaging in "inhumane, unhealthy, unprofitable, and illegal conduct." The flyer also compared Happy Herman's treatment of its employees with the local municipality's treatment of incarcerated criminals. With respect to the break issue in particular, Stewart's flyer stated:

Today the formal policy concerning meal breaks was posted. The break period was increased from 15 minutes to 20 minutes in accordance with my closed door negotiations with Ann Marie Moraitakis and David Levin [sic] (5/4/93). This is an extremely positive step in the right direction. According to Ms. Moraitakis the policy has been in effect at least since 1978-1979, without revision or modification, and that there are no exceptions ... The additional 5 minutes is a positive step in the negotiation process towards a fair and equitable 30 minute break per 7-10 hr. shift. It shows that management is willing to reconsider their former position and it is the first break time increase in 14 years.... We only have 10 more minutes to go in our negotiation process. I applaud the "new policy". It is 2/3 of what is needed for a humane resolution, before it was only 1/2. Employees now have the "right" to...