United States District Court, D. Nebraska
JOEY SHASKE, a minor child, by and through his parents, natural guardians, and next friends, JODIE SHASKE and JOSHUA SHASKE, Plaintiff,
CARMIKE CINEMAS, INC., a Delaware corporation, Defendant.
MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
The plaintiff, Joey Shaske, alleges that the defendant, Carmike Cinemas, discriminated against him in violation of the Americans with Disabilities Act (ADA) when it terminated his employment at its theater in Scottsbluff, Nebraska. Carmike, however, contends that the plaintiff was terminated as part of a reduction-in-force, and has moved for summary judgment. Filing 54. Because there are genuine issues of material fact precluding summary judgment, the Court will deny Carmike's motion.
Carmike is a motion picture exhibitor that operates movie theaters across the United States, including the Monument Mall 6 Theater in Scottsbluff. Filing 55 at 9. In the spring of 2012, the Theater's manager, Cynthia Hamilton, hired several employees in anticipation of the busy summer movie season: Ashley Longoria, Tristan Scott, Ashley Shimek, and the plaintiff. Filing 55 at 9-10; filing 59 at 5.
When he was interviewed, the plaintiff told Hamilton that he had previously been afflicted with brain cancer. Filing 55 at 10; filing 59 at 1. It is undisputed for purposes of the present motion that the plaintiff has anterograde amnesia, which limits his ability to form new memories. Filing 55 at 10; filing 59 at 1-2. The plaintiff told Hamilton that he had problems relating to short-term memory loss and had difficulty memorizing long lists of information. Filing 55 at 10. But, the plaintiff explained, he had learned coping skills such as writing notes to himself, and leaving things in the same place so he could find them. Filing 55 at 10. The plaintiff also told Hamilton that he would have to miss work from time to time for medical appointments. Filing 55 at 10.
The plaintiff began work at the Theater on May 12, 2012, working as a concessions attendant. Filing 55 at 11. He also worked, at times, as a cashier, usher, and arcade attendant. Filing 59 at 1. The plaintiff was permitted to write messages to himself as reminders, and to use his mobile phone to take pictures of his schedule. Filing 55 at 11. And Hamilton provided the plaintiff with written checklists to help him in his duties. Filing 55 at 11. Those duties included cleaning, taking tickets and offering directions, serving concessions, and giving change. Filing 59 at 2. He was generally able to perform these tasks. Filing 59 at 3. No verbal or written warnings, or disciplinary action, or complaints from other employees, were documented with respect to the plaintiff. Filing 59 at 2-3.
The plaintiff's employment was not without incident, however, at least according to Carmike. The Theater's assistant manager says that other employees complained about the plaintiff leaning on counters and not working while other employees were, stopping during house checks to watch movies, and talking to friends instead of helping his coworkers. Filing 61 at 90-91. And Hamilton says there were a couple of reports that the plaintiff had used profanity in front of the Theater's customers. Filing 61 at 102. Hamilton says she "coached" the plaintiff about such things as leaning on the counters and hanging out with his friends. Filing 61 at 70. The Theater's employee manual would suggest that at least some of the infractions attributed to the plaintiff should have been formally documented by management. Filing 59-2 at 24-25. But Hamilton says she prefers not to employ formal discipline during an employee's first few months, because it's discouraging and bad for morale. Filing 61 at 105. The plaintiff, for his part, denies swearing in front of customers. Filing 59 at 1-2.
On June 14, 2012, the plaintiff went with his mother to Denver for a doctor's appointment. Filing 59 at 6. He received a text message from Hamilton's husband asking if he was on his way to work, and noting that he was scheduled to work that day. Filing 59 at 6. He replied, apologizing for any confusion but stating that he was "pretty sure" he had told Hamilton that he had a doctor's appointment. Filing 59 at 6. Hamilton texted the plaintiff telling him that he would need to bring a doctor's note verifying the appointment. Filing 59 at 6. The plaintiff replied, asking when he was scheduled to work again. Filing 59 at 7. Hamilton responded that the plaintiff was scheduled to work the next day-June 15-from 6 to close. Filing 59 at 7. The plaintiff claims that he had informed Hamilton of the doctor's appointment. Filing 59-1 at 2. Hamilton, however, says she had not been informed, and that the plaintiff never submitted a "Time Off Request Form, " which she requires of employees who want to be removed from a scheduled shift. Filing 59-2 at 52; filing 61 at 106.
In the meantime, in May 2012, Hamilton (and other theater managers in the same district) began receiving emails from the Carmike district manager, advising them that business was slow and emphasizing the need to control expenses, including payroll. Filing 55 at 11; filing 59 at 4. Those emails did not require any layoffs, and there are other ways to cut payroll, such as sending employees home or adjusting scheduling. Filing 59 at 4; filing 59-2 at 120-21. But the emails did emphasize cutting payroll "as much as possible in the month of June." Filing 59 at 4; filing 61 at 113, 133, 148. Hamilton decided to terminate three employees. Filing 55 at 12. Hamilton says she wanted to retain more experienced workers, so she focused her attention on the four recently-hired employees: Longoria, Scott, Shimek, and the plaintiff. Filing 55 at 12. According to Hamilton, Scott had distinguished herself, and was a better employee than the other three, so she decided to retain Scott and terminate the others. Filing 55 at 12. Hamilton says she decided to terminate the plaintiff on June 10 or 11. Filing 59-2 at 55. The plaintiff was told of his termination when he reported to work on June 15- the day after he had missed work for his doctor's appointment. Filing 59 at 7. Hamilton says that she had asked the plaintiff to provide a doctor's note anyway-despite the fact that she had already decided to terminate him- because it could affect whether he was eligible to be rehired. Filing 61 at 106.
When the plaintiff was informed of his termination on June 15, 2012, he was told by the assistant manager who spoke to him that he "had done nothing wrong." Filing 59 at 8. The next day, the plaintiff's mother called and spoke with Hamilton, who said that the plaintiff had been terminated because Carmike did not have enough hours for him to work. Filing 59 at 8. When the plaintiff's mother questioned that explanation, however, Hamilton said that she didn't want to hurt the plaintiff's feelings, but the reason the plaintiff was terminated was that Hamilton did not think the plaintiff was capable of doing the job. Filing 59 at 8. The plaintiff's mother ended the telephone call before Hamilton could elaborate. Filing 59-2 at 76. Hamilton says that all she meant by her statement was that the plaintiff was too immature for the work force. Filing 61 at 73-74.
Carmike asserts that the decision to terminate the plaintiff was based on economic necessity, but the plaintiff disputes that assertion. The plaintiff points to evidence that the Theater was hiring during the same timeframe. One potential new employee was contacted on June 6, 2012, and subsequently interviewed for a position at the Theater; he was told by the interviewer that the Theater was looking to immediately hire for weekends, holidays, and some weekdays. Filing 59 at 5-6. That interviewee was not hired, filing 61 at 105, but on July 11, two other new employees were. Filing 59 at 8. In addition, Shimek (one of the other employees terminated at the same time as the plaintiff) was contacted in August to gauge her interest in returning to work; the plaintiff, however, was not contacted. Filing 59 at 9. Hamilton says that when the plaintiff had been terminated by the assistant manager, the plaintiff had suggested that he thought he already had another job anyway. Filing 61 at 106-07. That, Hamilton says, was why the plaintiff was not later contacted about returning to work. Filing 61 at 106-07. The plaintiff, however, denies making such a statement. Filing 59-1 at 3.
After exhausting his administrative remedies, the plaintiff sued Carmike in state court, alleging, among other things, a violation of the ADA. Filing 1-1. Carmike removed the case to federal court, denied the plaintiff's claims, and now moves for summary judgment. Filing 1; filing 9; filing 54.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a). The movant bears the initial responsibility of informing the Court of the basis for the motion, and must identify those portions of the record which the movant believes demonstrate the absence of a genuine issue of material fact. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant does so, the ...