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Denson v. Steak 'N Shake

United States District Court, E.D. Missouri, Eastern Division

December 11, 2017

GARRY DENSON, Plaintiff,
v.
STEAK ‘N SHAKE, Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         Plaintiff Gary Denson has brought suit against his former employer, Steak ‘n Shake. In his complaint, Denson alleges Steak ‘n Shake has discriminated against him because he is disabled in violation of the Americans with Disabilities Act and retaliated against him for exercising his rights under the Missouri Worker's Compensation statute. Steak ‘n Shake has moved for summary judgment on both of Denson's claims. Steak ‘n Shake argues Denson cannot establish a prima facie case of discrimination under the ADA. Steak ‘n Shake also contends that because Denson failed to oppose its basis for summary judgment with regard to Denson's worker's compensation retaliation claim, he has waived his arguments as to that claim. I agree and will grant Steak ‘n Shake's motion for summary judgment.

         I. Background [1]

         In 2011, Denson underwent left hip replacement surgery and suffered lower back pain after slipping at a previous job. That same year, Dr. Paul Lux placed Denson on permanent restrictions of clerical and sedentary work and prohibited him from lifting any weight at all. In November 2014, Denson was hired as a fountain operator for Steak ‘n Shake's O'Fallon, Missouri restaurant. Denson informed Steak ‘n Shake that he had a disability because of hip and back problems and was limited to lifting a certain amount of weight, but did not disclose his permanent work restrictions.

         Steak ‘n Shake's job description for a fountain operator states that the position requires employees to: push and pull heavy objects; lift and carry 30 pounds; and stand, bend, stretch, and walk throughout the shift. Most of Denson's duties as a fountain operator ‒ including cleaning, washing, stocking, and making milkshakes ‒ required him to remain on his feet and lift items. The only assistance Denson requested was occasional help lifting milk bags into a milk dispenser and Steak ‘n Shake accommodated his request.

         In January 2015, Denson reinjured his hip, back, and leg when he slipped and fell on the job. Denson suffered a second fall a month later. In January 2016, Denson was examined by Dr. King, an orthopedic specialist, who placed lifting, walking and standing restrictions on him. On February 5, 2016, Dr. King recommended that Denson should remain on Dr. Lux's permanent restrictions of clerical and sedentary activities because Denson had reached maximum improvement. On February 10, 2016, Steak ‘n Shake's Human Resources Manager removed Denson from the schedule for a safety evaluation.

         After being removed from the schedule, Denson filed a claim for workers' compensation against Steak ‘n Shake. Denson also filed a Charge of Discrimination with the Equal Employment Opportunity Commission and the Missouri Human Rights Commission (MHRC). In the Disability Questionnaire supporting his Charge of Discrimination, Denson claimed that Steak ‘n Shake could have accommodated his disability by making him a host, dishroom or prep person. In his deposition testimony, Denson states that he requested to work as a host at the O'Fallon restaurant, but he admitted that he knew that position and the dishroom position were already taken by other employees with disabilities.

         Denson filed his complaint in this Court on September 19, 2016, claiming Steak ‘n Shake discriminated against him because he was disabled and retaliated against him for exercising his rights under the Missouri Workers' Compensation statute. Steak ‘n Shake now moves the Court to grant summary judgment in its favor on Denson's claims.

         II. Summary Judgment Standard

         The standards for summary judgment are well settled. In determining whether to grant a motion for summary judgment, the court views the facts - and any inferences from those facts - in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The movant bears the burden of establishing that (1) it is entitled to judgment as a matter of law and (2) there are no genuine issues of material fact. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this burden, however, the non-moving party may not rest on the allegations in its pleadings but must, by affidavit and other evidence, set forth specific facts showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e). Where a factual record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita, 475 U.S. at 587. At the summary judgment stage, I will not weigh the evidence and decide the truth of the matter, but rather I need only determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

         III. Discussion

         A. Count I - ADA violation

         In Count I of the complaint, Denson maintains he was discriminated against because of his disability in violation of the ADA when Steak ‘n Shake terminated his employment. Steak ‘n Shake argues that summary judgment should be granted in its favor on Count I because Denson cannot establish a prima facie case of discrimination under the ADA. Specifically, Steak ‘n Shake maintains Denson was not qualified to perform the essential functions of a fountain operator because, at the time he was removed from the schedule, he had medical restrictions to only perform sedentary and clerical work. In response, Denson asserts he was capable of performing the essential functions of a fountain operator and that Steak ‘n Shake failed to accommodate him by offering him an alternative position at the O'Fallon restaurant or another location in the St. Louis metropolitan area.

         “To establish a prima facie case of discrimination on the basis of a disability, a plaintiff must show that he (1) has a disability within the meaning of the ADA, (2) is a qualified individual under the ADA, and (3) suffered an adverse employment action as a result of the disability.” Kowitz v. Trinity Health, 839 F.3d 742, 745 (8th Cir. 2016) (internal quotations omitted). “For an employee to be a qualified individual under the ADA, she must (1) possess the requisite skill, education, experience, and training for h[er] position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.” Id. (internal quotations omitted). “Essential functions are the fundamental job duties of the employment position.” Walz v. Ameriprise Fin., Inc., 779 F.3d 842, 845 (8th Cir. 2015) (internal ...


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