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Shulman v. Amazon.Com.Kydc, LLC

United States District Court, E.D. Kentucky, Central Division, Lexington

April 20, 2015

AMAZON.COM.KYDC, LLC, et al., Defendants.


DAVID L. BUNNING, District Judge.

I. Introduction

Defendants, LLC and, Inc. (collectively, "the Amazon Defendants") move for summary judgment on pro se Plaintiff Julian Shulman's ("Shulman") claim for violations of the Americans with Disabilities Act ("ADA") and Kentucky Civil Rights Act ("KCRA"). The Amazon Defendants argue that Shulman failed to establish a prima facie case of disability discrimination because his osteoarthritis does not constitute a disability within the meaning of the ADA Amendments Act of 2008 ("ADAAA"). Alternatively, the Amazon Defendants contend that Shulman's claim fails the McDonnell Douglas burden shifting test because he cannot prove that his performance-based termination was a pretext for discrimination. The Amazon Defendants then argue that summary judgment is appropriate on Shulman's breach of implied-in-fact contract and class action claims because the record is devoid of supporting evidence. The Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

II. Factual and Procedural Background

On February 8, 2008,, LLC ("Amazon Ky.") offered Shulman employment as a Warehouse Associate at their "LEX1" fulfillment center in Lexington, Kentucky. (Doc. # 72-2). The offer letter stated that Shulman would be an employee-at-will, so he or Amazon Ky. could "terminate [the] relationship at any time for any reason, with or without cause." ( Id. ). The letter set forth the terms of employment, which superseded any previous discussions or offers of employment. ( Id. ). Any additions to or modifications of these terms had to be in writing and signed by both Shulman and an Amazon Ky. officer. ( Id. ). Shulman "accept[ed] employment with under the terms set forth in th[e] letter" on February 11, 2008. ( Id. ).

Warehouse Associates are responsible for receiving and relocating products, picking customer orders "on all levels of a multi-level mezzanine, " and packing and shipping customer orders. (Doc. # 72-3). The physical demands of the position include standing, walking, lifting up to sixty pounds, bending, reaching, kneeling and crouching for eight to twelve hour shifts, with or without reasonable accommodation. ( Id. ). Shulman signed a Job Description setting forth these requirements, thus certifying that he understood the demands of the position and would be "able to meet, with or without accommodation, the expectations for employment." (Doc. # 72-3). Although he had the opportunity to ask questions about the position before signing, he does not remember doing so. (Docs. # 72-3; 72-21 at 7-8). He also acknowledged receipt of the Employee Handbook, which encouraged him to report workplace discrimination, retaliation and harassment. (Doc. # 72-5).

Amazon Ky. expects their Warehouse Associates, commonly referred to as "pickers, " to meet certain productivity standards. (Docs. # 72-7 at 3-4; 72-8 at 3, 7). These standards, which represent the expected number of units picked per hour, are calibrated by analyzing average picker performance. ( Id. ). All pickers must perform at 100% of the productivity standards. ( Id. ). Area Managers review picker productivity weekly, rather than daily or hourly, thus allowing pickers some flexibility in meeting the productivity standards. (Doc. # 72-7 at 3-4).

If a picker fails to "make rate, " their Area Manager will notify Human Resources ("HR"). ( Id. ). An HR representative reviews the picker's history of performance counseling and determines what kind of action is appropriate under the "progressive discipline" system. (Docs. # 72-6; 72-7 at 5). The representative then completes the necessary paperwork and relays the decision to the Area Managers, who discuss their performance concerns with the picker. ( Id. ).

Amazon Ky.'s "progressive discipline" system imposes escalating consequences on pickers for persistent failure to meet productivity standards. (Docs. # 72-6; 72-7 at 5). A struggling picker first receives coaching from a top performer. ( Id. ). Coaching remains active for thirty days, then "rolls off" of the picker's record if there are no further mistakes. ( Id. ). If the picker commits another mistake in that thirty day period, he or she will receive a documented verbal warning, active for another thirty days. ( Id. ). First written warnings (active for thirty days), second written warnings (active for sixty days) and final written warnings (active for ninety days) may follow. ( Id. ). If a picker receives a second final written warning or a total of six documented performance warnings (i.e. a first, second or final written warning) within a rolling twelve month period, Amazon Ky. will terminate his or her employment.[1] (Doc. # 72-6).

The record reveals that Shulman struggled to meet productivity standards. After only a month of employment, he received a first written warning. (Doc. # 72-9 at 1-2). This warning rolled off his record, but by October 2008 he earned a documented verbal warning. ( Id. at 3-4). Amazon Ky. issued two more documented verbal warnings in December 2009 and April 2010, followed by a first written warning in May 2010. ( Id. at 7-9). Shulman received as many as four coaches in the following five months.[2] (Doc. # 72-8).

Shulman's performance declined noticeably in early 2011. He received a first written warning on January 24, 2011. ( Id. at 13-14). Amazon Ky. issued a second written warning just six days later. ( Id. at 11-12). According to this warning, Shulman had failed to meet performance expectations for the six week period from December 19, 2010 to January 23, 2011 and consistently performed in the bottom 25% of all employees in his department. ( Id. ). Around this same time period, Shulman informed HR representative Vince Woodard that he was experiencing foot and ankle pain. (Doc. # 72-21 at 14). Woodard urged him to consult a doctor. ( Id. ). Shulman again failed to meet productivity expectations in early February, prompting Amazon Ky. to issue him a final written warning. (Doc. # 72-9 at 19).

On March 1, 2011, Shulman sought treatment at Lexington Podiatry. (Doc. # 72-at 5). He told Dr. Nicole Freels ("Dr. Freels") that he had been experiencing foot and ankle pain for about three years. ( Id. ). He reportedly tried over-the-counter insoles and powersteps, but they provided only temporary relief. ( Id. ). Dr. Freels ordered custom inserts for Shulman, gave him a wraptor ankle brace and night splint to wear and prescribed a non-steroidal anti-inflammatory drug called Mobic. ( Id. ). She also instructed Shulman on daily stretching exercises and referred him to Advantage Physical Therapy. ( Id. ).

When an employee asks for an accommodation, Amazon Ky. requests medical documentation. (Doc. # 72-10 at 2). Specifically, they give the employee a Request for Medical Information ("RMI") form for his or her physician to complete. ( Id. ). The physician should identify the employee's physical restrictions, the expected duration of these restrictions and whether the condition substantially limits the employee's ability to perform major life activities. ( Id.; Doc. # 72-11). Dr. Freels completed such a form for Shulman, reporting that he had a 50% restriction on standing, walking or climbing stairs. (Doc. # 72-11). Although she did not state how long she expected these restrictions to last, she indicated that his osteoarthritis did not substantially limit his ability to perform major life activities. ( Id. ).

On March 11, 2011, Shulman had his initial consultation at Advantage Physical Therapy. (Doc. # 72-22 at 11-13). He indicated that his pain was a 4 out of 10 at the worst and that work "severely exacerbate[d] his symptoms." ( Id. ). Advantage staff formulated a care plan for Shulman that included physical therapy sessions twice a week for four weeks, as well as a home exercise plan ("HEP"). ( Id. ). Staff aimed to see "a 50% improvement in his tolerance of weight bearing activities" and pain "decreased to a 2/10 at worst" at the end of six weeks. ( Id. ).

Meanwhile, Shulman's site safety team, composed of Area Manager Jason Thomas ("Thomas"), Operations Manager Shelia Durham ("Durham") and various HR personnel, reviewed his RMI and discussed whether they could accommodate his condition by putting him in another position. (Docs. # 72-10; 72-12). Shulman allegedly asked Thomas to place him in "rebin, " but Durham felt that rebin may not be an appropriate accommodation because it required standing 100% of the time. ( Id. ). The site safety team ultimately determined that they could not accommodate Shulman's limitations, so Amazon Ky. approved him for a one month leave of absence beginning on March 24, 2011. (Doc. # 72-13 at 1). They instructed Shulman to submit an updated RMI no later than April 21, 2011 in order to request an extension of his leave or to return to work. ( Id. ).

On April 11, 2011, Shulman asked Amazon Ky. to "extend [his] FMLA leave to the full 12 weeks" because his "condition ha[d] not yet substantially improved." ( Id. at 2). Amazon Ky. was "unable to extend medical leave based on [Shulman's] personal diagnosis of [his] condition, " but would consider his request if accompanied by updated medical documentation. ( Id. at 3). It again asked Shulman to submit an updated RMI on or before April 21, 2011. ( Id. ).

Shulman had a follow-up appointment with Dr. Freels on April 27, 2011. (Doc. # 72-22 at 7). Shulman informed her that he had been wearing his wraptor braces and custom orthotics, which seemed to help quite a bit, but he had not been wearing his night splint or doing his HEP.[3] ( Id. ). He had not been to physical therapy since his initial consultation. ( Id. ). Shulman indicated that he was able to work for five hours without pain, but then began experiencing discomfort. ( Id. ). Dr. Freels completed another RMI form, stating that Shulman had a permanent restriction of walking at 75% capacity and should be limited to five hour shifts. (Doc. # 72-15). When asked whether Shulman's condition substantially limited his ability to perform major life activities, Dr. Freels responded by checking exactly between the "Yes" and "No" boxes. ( Id. ).

Once Shulman provided the updated RMI, Amazon Ky. approved him for a reduced work schedule. After further prompting from Amazon Ky., Shulman finally provided the updated RMI. (Docs. # 72-13; 72-15; 72-16). He would be permitted to work five hour shifts from May 20, 2011 to July 13, 2011, at which point he would have exhausted his 480 hours FMLA time for the year. ( Id. ). Amazon Ky. stated that it would re-evaluate Shulman's situation at that time. ( Id. ).

After resuming work, Shulman asked Amy Derheim, a member of the Leave of Absence and Accommodations Team, to accommodate his disability by allowing him to work a full ten hour shift but take a ten minute break every hour. (Doc. # 72-21 at 16-17). She told him that Amazon Ky. would be willing to consider the proposed accommodation if he provided supporting medical documentation. ( Id. ). Shulman never provided the requested documents to Amazon Ky., although he insists that he was in the process of obtaining the updated RMI at the time of his termination. ( Id.; Doc. # 91-2, p. 3, ¶ 12).

Shulman attended two physical therapy sessions in June. (Docs. # 72-22 at 7, 14-15; 87-1 at 1-2). Although Shulman insists that he "went to physical therapy once or twice a week every week I worked at LEX1 after it was prescribed for me, " medical records indicate that these were Shulman's first sessions since his initial evaluation. (Docs. # 91-2, p.3, ¶ 19; 72-22 at 7, 11-15). Regardless, Shulman told Advantage staff that his symptoms were improving, even though he had not been performing his HEP. ( Id. at 14). Shulman did not experience any significant ankle pain between sessions. ( Id. at 15). However, he had been off of work, which usually resulted in an improvement in his symptoms. ( Id. ).

There is some dispute as to whether Shulman's final written warning from February 14, 2011 rolled off his record shortly after his return. Amazon Ky. maintains that the warning was still active, as Shulman's fifty six days of leave could not be counted towards the ninety day expiration date. (Doc. # 72-1 at 10-11). Shulman insists that those fifty six days did count, and thus, the warning expired on May 14, 2011. (Doc. # 87 at 20). After returning to work, Shulman received coaching twice. (Docs. # 72-9 at 20; 72-8 at 11). Although Amazon Ky. explains that it simply wanted to give Shulman time to readjust to the workplace, he believes that he received coaching because his final written warning had expired. (Doc. # 72-1 at 10-11; Doc. # 87 at 20).

After Shulman failed to meet productivity standards for the week of June 19, 2011 to June 26, 2011, Thomas notified HR representatives and a Termination Request was prepared. (Doc. # 72-17). On July 13, 2011, the expiration date for Shulman's FMLA leave, Amazon Ky. terminated his employment. (Doc. # 72-17). The termination letter offered the following explanation for this decision:

This termination is a result of not meeting productivity expectations. From 2011-06-19 - 2011-06-26 you processed 2976 units over 25.00 hours for a rate of 119.0 units per hour or 92% to expectation. Based on the expectations for the process(es) in which you worked, you should have processed 3235 units in 25.00 hours, resulting in your termination.

( Id. ).

On March 29, 2012, Shulman filed a Notice of Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Doc. # 72-18). The EEOC dismissed the claim, closed the file and notified Shulman of his right to sue on September 12, 2012. (Doc. # 72-19). Shulman then filed this lawsuit against Amazon Ky., its corporate parent company,, Inc. and John Does 1-25 in Fayette Circuit Court. (Doc. # 1-1). The Amazon Defendants promptly removed this case to federal court.[4] (Doc. # 1). Discovery has now closed and the Amazon Defendants' Motion for Summary Judgment is ripe for the Court's review. (Docs. # 72, 87 and 90).[5]

III. Analysis

A. Standard of Review

Summary judgment is appropriate when there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). If there is a dispute over facts that might affect the outcome of the case under governing law, then entry of summary judgment is precluded. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the ultimate burden of persuading the court that there are no disputed material facts and that he is entitled to judgment as a matter of law. Id. Once a party files a properly supported motion for summary judgment by either affirmatively negating an essential element of the non-moving party's claim or establishing an affirmative defense, "the adverse party must set forth specific facts showing that there is a genuine issue for trial." Id. at 250. "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Id. at 252.

B. Threshold Considerations

1. The Amazon Defendants

Pursuant to the "integrated enterprise" doctrine, "two companies may be considered so interrelated that they constitute a single employer subject to liability under the ADEA and/or the ADA." Swallows v. Barnes & Noble Book Stores, Inc., 128 F.3d 990, 994 (6th Cir. 1997) (citing Armbruster v. Quinn, 711 F.2d 1332, 1337-38 (6th Cir. 1983)). Courts should consider the following four factors in determining whether to treat two entities as a single employer: (1) interrelation of operations, i.e., common offices, common record keeping, shared bank accounts and equipment; (2) common management, common directors and boards; (3) centralized control of labor relations and personnel; and (4) common ...

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