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Morrisette v. MDV Spartannash, LLC

United States District Court, E.D. Virginia, Norfolk Division

August 1, 2016

ROBERT E. MORRISETTE, JR., Plaintiff,
v.
MDV SPARTANNASH, LLC, Defendant.

          MEMORANDUM OPINION & ORDER

          DOUGLAS E. MILLER UNITED STATES MAGISTRATE JUDGE.

         This 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 SpartanNash's Motion.[1]

         I. UNDISPUTED MATERIAL FACTS[2]

         Plaintiff 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.

         In 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.

         From 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. Id.

         Morrisette 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.

         In 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.

         In May 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).

         II. GENUINELY DISPUTED MATERIAL FACTS

         In 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 citation.

         A. Whether Morrisette's Removal From His December 2013 Bid and Placement on the Extra Board Was Discriminatory, or Denied Him a Reasonable Accommodation.

         Morrisette's 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 condition.

         In 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 ...


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