United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.
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
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
‘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
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.
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.
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
Summary Judgment Standard
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
Count I - ADA violation
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.
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)