United States District Court, W.D. Virginia, Lynchburg Division
K. MOON UNITED STATES DISTRICT JUDGE.
Harvey slipped, fell, and injured her knee while working as a
part-time biscuit maker at a Bojangles restaurant in
Lynchburg, Virginia. Her injury hampered her ability to bend
or lift, as well as stand for prolonged periods. She reported
these limitations and her related doctor's restrictions
to her employer. Not long thereafter, Harvey says, Bojangles
fired her, and the general manager refused to explain why. So
she filed suit against the owners of Bojangles, GoBo, Inc.
and GoBo2, Inc. (“Bojangles” or
“Defendants”), alleging several violations of the
Americans with Disabilities Act. She asserts Bojangles
terminated her because of her disability and in retaliation
for requesting accommodations. She also contends Bojangles
failed to accommodate her disability and retaliated against
her in other ways.
moved for summary judgment, arguing mainly (1) Plaintiff was
not disabled under the law and (2) she wasn't fired, but
voluntarily resigned to take another job. The first argument
falters on legal grounds and the second founders on the
facts. Read charitably to Plaintiff, there is sufficient
evidence to infer that Bojangles fired her because of her
disability and requests for accommodation. On the other hand,
her retaliation claim cannot be based on her worker's
compensation claim or tried to a jury. Accordingly,
Bojangles' motion will thus be granted in part and denied
Rule of Civil Procedure 56(a) provides that a court should
grant summary judgment “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” “As
to materiality . . . [o]nly disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In order to preclude summary judgment, the dispute
about a material fact must be “‘genuine, '
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Id.; see also JKC Holding Co. v. Washington
Sports Ventures, Inc., 264 F.3d 459, 465 (4th Cir.
2001). However, if the evidence of a genuine issue of
material fact “is merely colorable or is not
significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 250. In
considering a motion for summary judgment under Rule 56, a
court must view the record as a whole and draw all reasonable
inferences in the light most favorable to the nonmoving
party. See, e.g., Celotex Corp. v. Catrett, 477 U.S.
317, 322-24 (1986); Shaw v. Stroud, 13 F.3d 791, 798
(4th Cir. 1994).
Employment at Bojangles
2010, Plaintiff began work at the Bojangles on Timberlake
Road in Lynchburg, Virginia as a part-time biscuit maker.
(Dkt. 29-10 at ECF 2-3). That Bojangles is operated by
Defendant GoBo, Inc., while another Bojangles in town is
operated by Defendant GoBo2, Inc. (Dkt. 29-4 at ECF 4-6).
Phil Lynch and his son own GoBo and GoBo2, and they operate
both Bojangles' locations. (Id.). Plaintiff
worked only at the Timberlake Road location. (Dkt. 29-10 at
usual hours were 5 a.m. to 10 a.m., two days a week. (Dkt.
29-10 at ECF 3). The morning hours allowed Plaintiff to hold
other part-time jobs. (Dkt. 31-2 at 17). Specifically, she
worked at McDonald's, as well as 28 to 32 hours a week as
a janitor at a local mall. (Dkt. 31-2 at 17; dkt. 29-10 at
ECF 2-3; dkt. 29-11 at ECF 18).
occasionally would be called to work additional hours for
Bojangles, but this was not a regular occurrence. (Dkt. 29-10
at ECF 6). Thus, Plaintiff normally worked 10 hours a week at
Bojangles, with a 15-hour workweek from time to time, and a
20-hour workweek even more rarely. (Id. at ECF 6;
see dkt. 29-11 at ECF 16).
internal records indicate that Plaintiff received 23
citations (or “write-ups”) over two and half
years. Those citations document at least twelve instances of
failing to bake biscuits as required, seven instances of
failure to properly clean equipment or conduct preparatory
work, and three instances of failing to follow proper baking
procedure. (Dkt. 29-12 at ECF 7-10). Only one citation,
Plaintiff's final one on February 22, 2013, occurred
after her injury, and it-like several other reports-faulted
her for “not following biscuit making procedures”
and “not restocking her areas of” responsibility.
(Id. at ECF 10). It stated that Plaintiff had
“been coached regarding her work performance” and
“needs to work independently and complete all tasks
assigned, as well as keep the area neat and clean as you
February 13, 2013, Plaintiff fell in Bojangles' freezer
and hit her left knee on the floor; she departed her shift
early to go to the doctor but did not miss any other time.
(Dkt. 29-10 at ECF 5, 8; dkt. 29-10 at ECF 4-6). At the
doctor's office, a certified physician's assistant
diagnosed her with a “left knee contusion” and
permitted her to return to work with restrictions for
“no climbing, ” “minimal walking, ”
and wearing a knee brace. (Dkt. 29-11 at ECF 5-6). A
follow-up appointment on February 18th rendered restrictions
of a “15 minute rest every 2” hours, which
Plaintiff asserts she was denied during her shifts. (Dkt.
31-3 at ECF 27; dkt. 29-10 at ECF 4).
informed owner Phil Lynch and her managers of her
restrictions, and (she says) specifically asked to rest her
knee every two hours. (Dkt. 29-10 at ECF 5; dkt. 29-4 at ECF
11). Lynch responded by instructing the “kitchen
people, ” including a man named Kenny, to help
Plaintiff with any lifting. (Dkt. 29-4 at ECF 11-12). Thomas
Rader, the general manager of the Timberlake Road Bojangles,
observed Plaintiff limping, and he was ...