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Todd v. Covenant Security Services, Inc.

United States District Court, W.D. Kentucky, Owensboro Division

July 31, 2019

KEVIN K. TODD PLAINTIFF
v.
COVENANT SECURITY SERVICES, INC. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. McKINLEY JR., SENIOR JUDGE

         This matter is before the Court on a renewed motion by Defendant, Covenant Security Services, Inc., for summary judgment based on newly-discovered evidence [DN 37]. Fully briefed, this matter is ripe for decision.

         I. BACKGROUND

         Plaintiff, Kevin Todd, brought this lawsuit after he was terminated from his position as a security officer at Defendant, Covenant Security Services. On September 1, 2017, Todd filed this current action against Covenant alleging claims of disability-based discrimination pursuant to the Americans with Disabilities Act and the Kentucky Civil Rights Act, age discrimination pursuant to the Age Discrimination in Employment Act, and retaliation. In a Memorandum Opinion and Order issued December 12, 2018 [DN 26], this Court dismissed Plaintiff's claims of age discrimination and retaliation and denied summary judgment as to Plaintiff's ADA reasonable accommodation claim. With respect to the ADA reasonable accommodation claim, the Court found that a patrol round is an essential function of a Covenant security officer assigned to Kimberly Clark. Additionally, the Court found that there are genuine disputes of material fact as to whether Todd's requested accommodations were reasonable, whether Todd was qualified for the position of security officer pursuant to the ADA, and whether Covenant properly engaged in the interactive process as required by the ADA. Covenant filed a motion to reconsider the portion of the Opinion and Order denying Covenant's summary judgment on the disability-related claims of Todd. The Court denied the motion to reconsider.

         Covenant now brings a renewed motion for summary judgment on the ADA claim arguing for the third time that the Court erred in denying summary judgment based on the original evidence presented by Covenant. The Court will not revisit its decision with respect to the original evidence presented by Covenant. Covenant also argues that summary judgment is warranted based on statements made in Todd's Social Security Disability Income (“SSDI”) claim. Covenant represents that it had requested a complete copy of Todd's SSDI file in 2018, but did not receive the file until March 27, 2019.

         II. STANDARD OF REVIEW

         Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the Federal Rules of Civil Procedure require the non- moving party to present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1). “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].” Anderson, 477 U.S. at 252.

         III. DISCUSSION

         To prevail on a failure-to-accommodate claim, a plaintiff must establish that: (1) he is disabled within the meaning of the ADA, (2) he is qualified for the position with or without a reasonable accommodation, (3) his employer knew or had reason to know of his disability, (4) he requested a reasonable accommodation, and (5) his employer failed to accommodate him. Popeck v. Rawlings Co. LLC, 2018 WL 2074198, at *6 (W.D. Ky. May 3, 2018) (citing Hedrick v. Western Reserve Care Sys., 355 F.3d 444, 452 (6th Cir. 2004) (citation omitted)). Relying on Todd's SSDI claim file, Covenant contends that Todd cannot satisfy the second requirement- that he is otherwise qualified for the position with or without a reasonable accommodation- because Todd took the legal position with the Social Security Administration in his application for disability benefits that he could not work and made several admissions that would call into question his ability to operate a mobility device to accomplish the essential functions of his job as a security officer. See Mobley v. Miami Valley Hosp., 603 Fed.Appx. 405, 414 (6th Cir. 2015) (“To recover under this theory, [plaintiff] must show that he proposed a reasonable accommodation and would have been reasonably accommodated but for [defendant's] refusal to participate in good faith.”).

         A “plaintiff's sworn assertion in an application for disability benefits that [he] is, for example, ‘unable to work' will appear to negate an essential element of [his] ADA case-at least if [he] does not offer a sufficient explanation.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999)). However, an application for disability is not “conclusive evidence that an individual is completely incapable of working.” Stallings v. Detroit Pub. Sch., 658 Fed.Appx. 221, 226 (6th Cir. 2016). “[A]n ADA plaintiff cannot simply ignore the apparent contradiction that arises out of the earlier SSDI total disability claim . . . [but] must proffer a sufficient explanation.” Id. (quoting Cleveland, 526 U.S. at 806). See also Hargett v. Jefferson Cty. Bd. of Educ., 2017 WL 5664922, at *3 (6th Cir. Oct. 27, 2017). “For instance, an ADA plaintiff can survive summary judgment by explaining that he can perform the essential functions of his position with a reasonable accommodation - a consideration the Social Security Administration's (SSA's) disability determination does not take into account.” Stallings, 658 Fed.Appx. at 226 (citing Olds v. United Parcel Serv., Inc., 127 Fed.Appx. 779, 783-84 (6th Cir. 2005)).

         Applying the above standard, Todd “must adequately explain why his SSDI claim and award are consistent with his current ADA claim that he was able to perform the essential functions” of his security guard position “with or without reasonable accommodation” in October of 2015. Green v. BakeMark USA, LLC, 683 Fed.Appx. 486, 495 (6th Cir. 2017).

         The record indicates that Todd filed an application for disability benefits on October 14, 2015, alleging disability since October 4, 2015, two days before he was terminated from Covenant. (Social Security Administration Decision at 1.) In connection with his application for SSDI benefits, Todd reported that since October 2015,

[t]he pain in my upper and lower back[1] has gotten so intense, I am unable to work. I cannot keep focus or stay awake when I have taken enough pain meds to control the pain in back. I used to be able to sit for long periods. However I am getting where I cannot sit in one place for long. Then I have to be careful when I get up ...

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