United States District Court, E.D. Virginia, Norfolk Division
ROBERT E. MORRISETTE, JR., Plaintiff,
MDV SPARTANNASH, LLC, Defendant.
MEMORANDUM OPINION & ORDER
DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE.
disability discrimination and retaliation case is before the
court on Defendant MDV SpartanNash, LLC's
("Defendant" or "SpartanNash") Motion for
Summary Judgment. (ECF No. 19). SpartanNash contends that it
is entitled to judgment against Plaintiff Robert E.
Morrisette, Jr., ("Plaintiff or "Morrisette")
because the company did not discriminate against Morrisette
by failing to accommodate his disability and did not
retaliate against him after he filed a lawsuit against the
company. Morrisette argues that genuine disputes of material
fact -principally concerning the company's knowledge of
his medical condition, his pending employment claims, and
previous accommodation of other truck drivers - preclude
summary judgment on both claims. For the reasons outlined
below, the court agrees with Morrisette and DENIES Defendant
UNDISPUTED MATERIAL FACTS
Morrisette is currently, and was during the time period
relevant to this suit, employed as a truck driver with
Defendant SpartanNash, a food distribution company that
primarily serves military commissaries. Decl. of Michael
Digioia ¶¶ 3-4 (ECF No. 20-1, at 1). In 2010,
Morrisette was diagnosed with pituitary adenoma, which
involves growth in the pituitary gland, and he also learned
he had a pineal cyst. Dep. of Robert Morrisette (ECF No.
20-2, at 2). These growths are benign, but can cause vision
loss and headaches. Dep. of Dr. Joesph Aloi (ECF No. 20-3, at
4). Dr. Joseph Aloi ("Dr. Aloi") was
Morrisette's treating endocrinologist, Id. at
3-4, and in February 2011, Dr. Aloi, on behalf of Morrisette,
submitted Family and Medical Leave Act ("FLMA")
documentation to SpartanNash. (ECF No. 20-5). In this
February 2011 paperwork, Dr. Aloi stated that Morrisette had
"[f]requent headaches, fatigue, [and] intermittent
nausea, " and with regard to Morrisette's work, Dr.
Aloi noted that "it may be very difficult for him to
work overtime." Id. at 2-3.
January 2012, Dr. Aloi submitted additional FLMA paperwork,
stating that Morrisette "has frequent headaches (some
severe), fatigue, [and] intermittent nausea and
vomiting." (ECF No. 20-6, at 2). Dr. Aloi also stated
that "[i]f headache is severe causes vomiting, "
and "[it is] very difficult for pt [patient] to work
more than 10 hours per day due to severe fatigue."
Id. at 3. In January 2013, Dr. Aloi submitted FLMA
paperwork with essentially the same description of
Morrisette's condition and work restrictions as the
January 2012 paperwork. (ECF No. 20-7, at 2-3). Dr. Aloi
again submitted FLMA paperwork in January 2014, noting that
Morrisette "[h]as frequent headaches (severe), fatigue,
intermittent nausea, [and] extreme fatigue when driving for
prolonged periods." (ECF No. 20-8, at 3). Dr. Aloi
stated that "[i]f headache is severe and causes
vomiting.... Very difficult for pt [patient] to work more
than 8-10 hours per day due to severe fatigue."
Id. at 4.
July 2012 to March 2015, Michael Digioia
("Digioia") worked as SpartanNash's
Transportation Manager, and in this position, he supervised
the drivers in Norfolk, Virginia, including Morrisette.
Digioia Decl. ¶¶ 3-4 (ECF No. 20-1, at 1). On March
27, 2015, Guy Gross became the Transportation Manager at
SpartanNash, and he currently supervises Morrisette and the
other Norfolk drivers. Decl. of Guy Gross ¶ 3 (ECF No.
20-4, at 1). During the time period relevant to this suit,
Sam Tramatan served as Regional Director at SpartanNash.
and the other drivers at SpartanNash operate under a
collective bargaining agreement ("CBA") with the
Teamsters, effective April 28, 2013, to April 23, 2016.
Id. ¶ 4; see also CBA Agreement (ECF
No. 20-4, at 4-45). Under the CBA, drivers have the
opportunity to bid for different driving routes based on
seniority. Gross Decl. ¶ 5 (ECF No. 20-4, at 1); CBA
Agreement (ECF No. 20-4, at 36). Master bids, which determine
the driving schedule for a set period of time, occur at least
once annually, and two weeks prior to a master bid, the
company posts notice of the upcoming bid opportunity. (ECF
No. 20-4, at 36). Each bid opportunity includes "a set
of runs that establish a work load for a week with certain
set runs." Gross Decl. ¶ 5 (ECF No. 20-4, at 1).
These "runs" include routes to military
commissaries within the region, ports that service overseas
commissaries, or "for hire" runs to other vendor
locations. Id. The length of each run varies. Runs
to bases are usually within two hours of the distribution
center, but can be up to five hours away, and runs to ports,
such as Norfolk, Virginia, and Portsmouth, Virginia, are
typically within one hour of the distribution center.
Id. ¶ 6 (ECF No. 20-4, at 2). "For
hire" runs vary in length from one to three days.
Id. When creating the various runs, SpartanNash
seeks to "create bid sets that will result in the most
efficient use of equipment, drive time and fuel."
Id. ¶ 5. To determine the most efficient route,
SpartanNash considers the "locations of the
commissaries, distance and routes between the commissaries,
volume of goods to each commissary, how often replenishment
is needed to the goods, available back hauls, and seasonality
of goods." Id. ¶ 6. After the bidding
process ends and the runs are filled, the bids are placed on
the master schedule. (ECF No. 20-4, at 36). In addition to
the master schedule, SpartanNash uses an "extra board
which has the postings of extra runs that are not part of the
master schedule." Digioia Decl. ¶ 5 (ECF No. 20-1,
at 1). The runs on the extra board are dependent on customer
needs. Id. As part of the bidding process, there is
also one bid package in which the driver takes only runs from
the extra board, but generally selects these runs before
other drivers. Id.
December 2013, SpartanNash posted bid opportunities for a new
master schedule, which was scheduled to begin in January
2014. Id. ¶ 6 (ECF No. 20-1, at 2). There were
a variety of bid opportunities, including extra board bids.
Morrisette Dep. (ECF No. 20-2, at 25). Morrisette bid on, and
was awarded, a package with four port runs and a Saturday run
to Fort Bragg. Digioia Decl. ¶ 6 (ECF No. 20-1, at 2).
The Fort Bragg run required a longer trip than the port runs,
and when Morrisette bid on this package he knew that he could
not do the Fort Bragg run due to his medical condition.
Morrisette Dep. (ECF No. 20-2, at 18) ("Am I correct
that at the time you bid it and received that run, you knew
you couldn't do a Fort Bragg run; is that fair?"
"That's fair."). Instead of performing the Fort
Bragg runs, Morrisette offered his Fort Bragg runs to other
drivers. Digioia Decl. ¶ 7 (ECF No. 20-1, at 2).
Morrisette believed he could find other drivers to perform
the Fort Bragg run, and thought he would be able to select a
run from the extra board that he could perform within his
limitations. Morrisette Dep. (ECF No.22-1, at 4-5). When
Digioia learned that Morrisette did not intend to perform the
Saturday runs to Fort Bragg, he terminated Morrisette's
performance of the bid entirely and placed him at the bottom
of the extra board until the next bid opportunity. Digioia
Decl. ¶ 8 (ECF No. 20-1, at 2). During this period,
Morrisette bid runs on the extra board that he was able to
perform, but his position at the bottom of the board led to
less desirable runs, and he was not earning as much as he
earned performing the bid runs. Morrisette Dep. (ECF No.
20-2, at 9-10). In April 2014, a new bid occurred, and
Morrisette bid the extra board run. Digioia Decl. ¶ 8
(ECF No. 20-1, at 2). After Morrisette bid the extra board
run in April 2014, he continued to perform runs within his
limitations from the extra board until May 2015. Gross Decl.
¶ 7 (ECF No. 20-4, at 2). The vast majority of these
runs consisted of port runs. Id.
2015, a new bid occurred, and Morrisette bid on, and was
awarded, a bid with port runs only, which provided Morrisette
with a regular schedule of runs he could perform within his
limitations. Id. ¶ 8. On July 30, 2015,
SpartanNash sent a letter informing drivers that the company
planned to reduce the number of port drivers from ten drivers
to seven drivers. July 30, 2015, Letter (ECF No. 20-4, at
48). The reduction affected Morrisette and two other drivers.
Morrisette Dep. (ECF No. 20-2, at 7). The remaining seven
port drivers were all senior to Morrisette, but Morrisette
was the senior-most driver of the three drivers whose port
run positions were eliminated. Id. at 8. After
SpartanNash reduced the number of port drivers, Morrisette
was placed back on the extra board, and presently bids runs
off the extra board that work with his restrictions.
Id. at 9-10. When bidding on runs on the extra
board, Morrisette is currently the fourth most senior driver,
meaning there are three employees on the extra board who are
more senior than Morrisette. Id. at 3-4. As a result
of losing his bid of regular port runs, Morrisette has a less
desirable schedule and earns less income. Id.
(discussing the limited availability of runs on the extra
board that accommodate Morrisette's medical condition).
GENUINELY DISPUTED MATERIAL FACTS
addition to the foregoing undisputed facts, the parties have
introduced exhibits and testimony that raise disputes of
material fact. Morrisette argues that these genuine disputes
of material fact preclude summary judgment on either of his
claims because they relate to SpartanNash's rationale for
removing Morrisette from his December 2013 bid and the
company's decision to reduce the number of port drivers.
The court recites each party's position with appropriate
Whether Morrisette's Removal From His December 2013 Bid
and Placement on the Extra Board Was Discriminatory, or
Denied Him a Reasonable Accommodation.
position is that his removal from his December 2013 bid was
due to his disability, and the company's failure to
provide a comparable alternative route constituted a failure
to accommodate his medical condition. Specifically,
Morrisette states that SpartanNash knew he had "a
pituitary problem that ' cause[d] him to have frequent
severe headaches and fatigue' that precluded him from
working 'any extra hours, ' " and knew he had
difficulty working "more than 10 hours per day."
Pl.'s Br. (ECF No. 22, at 2) (citing Jan. 7, 2011, Letter
(ECF No. 22-10, at 3); 2012 FLMA Paperwork (ECF No. 20-6);
2013 FLMA Paperwork (ECF No. 20-7)). He asserts that the
company knew he would not be able to perform the Fort Bragg
run when he bid on the package in December 2013 because
SpartanNash's own calculations indicated that the Fort
Bragg run - which was to be completed on Saturdays - required
more than ten hours of work and was therefore outside the
range permitted by Morrisette's medical condition.
Id. at 3. And, when Morrisette asked for an
accommodation for "that Saturday" by asking
"to put the Bragg [run] to the extra board and [to] let
[him] choose on the extra board as far as local[ ] [runs],
" his position is that the company denied this request,
terminated his previously awarded bid package, and placed him
at the bottom of the extra board. Morrisette Dep. (ECF No.
22-1, at 4-5). He asserts that other non-disabled drivers
were permitted to maintain their bids despite being unable to
complete required runs that were a part of their bid
packages. He also claims shop rules related to interpretation
of the CBA did not prohibit run swaps. (ECF No. 22, at 3)
(citing Morrisette Dep. (ECF No. 22-1, at 7-8); Digioia Dep.
(ECF No. 22-2, at 5-12)). As a result, he claims both direct
discrimination and a failure to accommodate his medical
contrast, SpartanNash's position is that before
Morrisette bid on the package, he did not inform the company
that his medical condition would prevent him from performing
the Fort Bragg run, and he did not ask for an accommodation.
Digioia Decl. ¶ 6 (ECF No. 20-1, at 2). SpartanNash also
asserts that contrary to the company's policy, Morrisette
offered his Fort Bragg run to other drivers without informing
Digioia or the dispatcher. Id. ¶ 7. Because
Morrisette was unable to perform part of his bid package, the
company's position is that "Digioia deemed
Morrisette to have declined to perform his bid" and for
this reason, removed him from the bid package and placed him
at the bottom of the extra board until the next bid.
Def.'s Br. (ECF No. 20, at 7). The company also
distinguishes the non-disabled drivers who ...