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Harvey v. GoBo, Inc.

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

November 1, 2017

Patricia Harvey, Plaintiff,
GoBo, Inc. and GoBo2, Inc., Defendants.



         Patricia 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.

         Bojangles 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 in part.


         Federal 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).


         Plaintiff's Employment at Bojangles

         In 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 ECF 3).

         Plaintiff's 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).

         Plaintiff 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).

         Bojangles' 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 go.” (Id.).

         Plaintiff's Injury

         On 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).

         Plaintiff 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 ...

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