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Wilson v. Dollar General Corp.

United States District Court, W.D. Virginia, Danville Division

August 7, 2015


          For Lamont Wilson, Plaintiff: Brittany Michelle Haddox, Terry Neill Grimes, LEAD ATTORNEYS, Terry N. Grimes, ESQ., P.C., Franklin Commons, Roanoke, VA.

         For Dollar General Corporation, DolgenCorp, LLC, Dolgen, LLC, Defendants: Alexander Tevis Marshall, LEAD ATTORNEY, Ogeltree, Deakins, Nash, Smoak & Stewart, P.C., Richmond, VA; Keith D. Frazier, LEAD ATTORNEY, PRO HAC VICE, Ogletree Deakins, Nashville, TN.

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         Before me is Defendants' Second Motion for Summary Judgment. [ECF No. 67.] The issues presented in the Motion were fully briefed by the parties, and they appeared before me on July 31, 2015, to argue their respective positions on the facts and the law. The matters are now ripe for disposition. For the reasons stated in herein, Defendants' Second Motion for Summary Judgment will be granted with respect to Count I (discrimination) and denied with respect to Count II (retaliation). Plaintiff's retaliation claim will proceed to trial.


         Plaintiff Lamont Wilson (" Plaintiff" ) is a resident of Blairs, VA, and is blind in his right eye. Defendant Dollar General (" Defendant" )[1] is a small-box discount retailer

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with over 11,000 stores in 40 states. Plaintiff was previously employed by Defendant in 2010. Around that time, Plaintiff developed iritis and began having difficulty seeing in his left eye, his only functioning eye. Following several visits with his physician, Plaintiff's doctor removed him from work until his eyesight could be restored. Dollar General terminated Plaintiff's employment in April of 2010. Plaintiff contends that he was terminated because he could not return to his work as a result of his disability; Dollar General refutes that rationale. In 2012, Plaintiff filed suit against Dollar General alleging discrimination in violation of the Americans with Disabilities Act. I granted summary judgment to Dollar General, and the Fourth Circuit affirmed that decision.

         Subsequent to his termination, Plaintiff had two surgeries to restore the vision in his left eye. On or about June 12, 2013, Plaintiff reapplied for a job through Defendant's on-line employment portal. Because Plaintiff is not comfortable with computers, Plaintiff went to the Virginia Employment Commission (" VEC" ) where a counselor helped Plaintiff complete and submit the application on-line. Defendants contend that Plaintiff never completed its multi-step application process.

         According to Dollar General, the on-line application process is a two-step process. The first step--the " Gateway Questionnaire" --solicits information concerning an applicant's employment history, education history, shift availability, and other general information. After completing the Gateway Questionnaire, the applicant must then complete the " Assessment." Defendant does not assert what additional information is needed or solicited in the Assessment, but only that it is a second step. At his deposition, Plaintiff described the type of number of questions on the Assessment part of the application; Defendant does not dispute his description and, in fact, conceded at oral argument that his description of the Assessment was correct.

         On June 12, 2013, Plaintiff completed, at a minimum, the Gateway Questionnaire. Defendant then e-mailed him an auto-generated e-mail message the same day that read, in relevant part:

Thank you for the time you took applying for employment with Dollar General. We have received your application for the position of 3410 GENERAL WAREHOUSE--South Boston VA Distribution Center--1037BR and are currently reviewing your experience and qualifications. If your profile corresponds to our requirements, a member of our team will contact you.

         Plaintiff maintains that he completed the full application--the Gateway Questionnaire and the Assessment--yet yet Defendant asserts that its record do not show that Plaintiff even started the Assessment. According to Dollar General, the June 12 e-mail was not meant to inform Plaintiff that it had received his whole application or that his application was under review.

         Defendant asserts that, on June 14, 2013, its computer systems sent Plaintiff an auto-generated e-mail which read, in relevant part:

You recently began the process of applying for a position at Dollar General, but did not finish the assessment(s). Your application will not be complete and you will not be considered for employment until you have completed the assessment(s). Please follow the link below to access your pending assessment(s) .

         According to Defendant, this message " would not have been generated if Mr. Wilson had completed the Assessment at

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that time (i.e., by June 14, 2013)." Subsequent to these events, Plaintiff was not offered an interview or a job with Dollar General. Both Henry Bruining (Senior Manager of Human Resources) and Amanda Dalton (Human Resources Representative), the two people who were responsible for reviewing applications and filling positions, filed declarations stating that they never reviewed an application filed by Plaintiff.

         On July 8, 2014, Plaintiff filed suit in this Court against Dollar General, DolgenCorp, LLC, and Dolgen, LLC (collectively " Defendants" ). Plaintiff alleged that Defendants refused to hire him because he was disabled, and that they refused to hire him in retaliation for his filing of a charge of discrimination against Dollar General stemming from his prior employment and termination, all in violation of the Americans with Disabilities Act. Defendants filed their Answer on September 4, 2014. A little over a month later, on October 8, 2014, Defendants filed a Motion for Summary Judgment, in which they argued that Plaintiff never fully completed an application for employment. I denied this motion, holding that the June 12 e-mail established a genuine issue of material fact with regard to Plaintiff's application status.

         On June 25, 2015, Defendants filed a second motion for summary judgment, arguing that Plaintiff cannot establish a prima facie case of either discrimination (Count I) or retaliation (II). Alternatively, even if Plaintiff can establish the prima facie case, he cannot establish that Defendants legitimate, non-discriminatory and non-retaliatory reasons for its actions were false and a pretext for discrimination or retaliation. Plaintiff responded, and Defendants filed their reply.


         Summary judgment is appropriate where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); George & Co. LLC v. Imagination Entertainment Ltd., 575 F.3d 383, 392 (4th Cir. 2009). A genuine dispute of material fact exists " [w]here the record taken as a whole could...lead a rational trier of fact to find for the nonmoving party." Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (internal quotation marks and citing reference omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute cannot be created where there is only a scintilla of evidence favoring the nonmovant; rather, the Court must look to the quantum of proof applicable to the claim to determine whether a genuine dispute exists. Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Anderson, 477 U.S. at 249-50, 254. A fact is material where it might affect the outcome of the case in light of the controlling law. Anderson, 477 U.S. at 248. On a motion for summary judgment, the facts are taken in the light most favorable to the non-moving party insofar as there is a genuine dispute about those facts. Scott, 550 U.S. at 380. At this stage, however, the Court's role is not to weigh the evidence, but simply to determine whether a genuine dispute exists making it appropriate for the case to proceed to trial. Anderson, 477 U.S. at 249. It has been noted that " summary judgment is particularly appropriate . . . [w]here the unresolved issues are primarily legal rather than factual" in nature. Koehn v. Indian Hills Cmty. Coll., 371 F.3d 394, 396 (8th Cir. 2004).


         Plaintiff has filed a two-count Complaint against Dollar General, his former employer. In Count I, he alleges that Dollar

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General discriminated against him on the basis of his disability, in violation of the Americans with Disabilities Act (" ADA" ), when it failed to hire him in June of 2013. In Count II, he alleges that Dollar General's refusal to hire him in 2013 was in retaliation for a prior discrimination lawsuit he filed against it. Defendant has moved for summary judgment on both counts, and they are addressed in turn.

         A. Count I--Discrimination under the ADA

         " In order to establish a prima facie case of failure to hire under the ADA, the plaintiff must prove by a preponderance of the evidence that: (1) he is within the ADA's protected class; (2) he applied for the [vacant] position in question; (3) he was qualified for that position; and (4) the defendants rejected his application under circumstances that give rise to an inference of discrimination." Malone v. Greenville Cnty., C/A No. 6:06-2631-RBH, 2008 WL 4557498, at *9 (D.S.C. Aug. 11, 2008) (citing Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249, 258 (4th Cir. 2006)). Under the McDonnell Douglas burden-shifting framework, once the plaintiff has made out a prima facie case, " the burden then shifts to the defendant to provide a legitimate, non-discriminatory explanation for its decision." Heiko, 434 F.3d at 258. " Once such a neutral reason is proffered, the burden reverts to the plaintiff to establish that the employer's non-discriminatory rationale is a pretext for intentional discrimination. At this point, 'a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.'" Id. at 258-59 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).

         Regarding the first prong of the prima facie case, the ADA defines actual " disability" as " a physical or mental impairment that substantially limits one or more of the major life activities of such individual." 42 U.S.C. § 12102(1) (2014); see also id. § 12102(4); Boitnott v. Corning Inc., 669 F.3d 172, 174 (4th Cir. 2012). " The determination of whether a person is disabled is an individualized inquiry, particular to the facts of each case." E.E.O.C. v. Sara Lee Corp., 237 F.3d 349, 352 (2nd Cir. 2001); see also Taylor v. Federal Express Corp., 429 F.3d 461 (4th Cir. 2005). The general definition of a major life activity includes seeing. See 42 U.S.C. § 12102(2)(A). The Equal Employment Opportunity Commission has said,[2] " [a]n impairment is a disability . . . if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting. Nonetheless, not every impairment

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will constitute a disability within the meaning of [the ADA]." 29 C.F.R. § 1630.2(j)(1)(ii) (2014).

         In the present case, Plaintiff contends that his blindness in one eye (" monocular vision" or " monocularity" ) substantially limits him in the major life activity of seeing. (See, e.g., Lamont Wilson Dep. 61:3-10, Mar. 9, 2015 [ECF No. 80-1].) While it is true that " [t]he major life activity of seeing . . . is always substantially limited by blindness," Heiko, 434 F.3d at 256, that is not always the case with monocularity. The Supreme Court has indicated that " monocular individuals, like others claiming the [ADA]'s protections, [must] prove disability by offering evidence that the extent of the limitation in terms of their own experience, as in loss of depth perception and visual field, is substantial." Albertson's, 527 U.S. at 567. Additionally, a court must take " an individual's ability to compensate for the impairment" into consideration when determining the impact on the major life activity of seeing. Foore v. City of Richmond, Va., 6 Fed.Appx. 148, 152 (4th Cir. 2001) (citing Albertson's, 527 U.S. at 565).

         Here, Plaintiff has not offered any evidence to show that his monocular vision limits him in any way. According to his physician:

As far as I can determine there is no reason Mr[.] Wilson cannot run his own [business] and continue to work. He is simply reminded that he should wear some type of safety glass wear at all times given his monocular status. His left eye is stable and he maintaining good vision in that eye. No restrictions at this time. The only aspect we did not assess today was visual field so I do not know his horizontal degree of vision, which is only important as regards DMV requirements.

(Def.'s Mem. in Supp. of Mot. for Summ. J. Ex. G, June 25, 2015 [ECF No. 68-5, 71].) Plaintiff's own physician stated that Plaintiff has no restrictions, a conclusion which cuts strongly against Plaintiff's required showing of the extent of his limitations.

         More compelling than his physician's conclusion, however, is Plaintiff's own testimony detailing his lack of limitations:

A: . . . My vision got well. My vision got back ...

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