United States District Court, W.D. Virginia, Danville Division
Lamont Wilson, Plaintiff: Brittany Michelle Haddox, Terry
Neill Grimes, LEAD ATTORNEYS, Terry N. Grimes, ESQ., P.C.,
Franklin Commons, Roanoke, VA.
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.
Jackson L. Kiser, SENIOR UNITED STATES DISTRICT JUDGE.
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
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND
Lamont Wilson (" Plaintiff" ) is a resident of
Blairs, VA, and is blind in his right eye. Defendant Dollar
General (" Defendant" ) is a small-box discount
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.
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.
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.
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
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.
asserts that, on June 14, 2013, its computer systems sent
Plaintiff an auto-generated e-mail which read, in relevant
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) .
to Defendant, this message " would not have been
generated if Mr. Wilson had completed the Assessment at
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.
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
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.
STANDARD OF REVIEW
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).
has filed a two-count Complaint against Dollar General, his
former employer. In Count I, he alleges that Dollar
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.
Count I--Discrimination under the
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)).
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, " [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
will constitute a disability within the meaning of [the
ADA]." 29 C.F.R. § 1630.2(j)(1)(ii) (2014).
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).
Plaintiff has not offered any evidence to show that his
monocular vision limits him in any way. According to his
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
(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.
compelling than his physician's conclusion, however, is
Plaintiff's own testimony detailing his lack of
A: . . . My vision got well. My vision got back ...