United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, Magistrate Judge.
This employment discrimination action comes before the Court on two Motions for Summary Judgment [Doc. #12, #23] filed by Defendant Flowers Baking Co. of Jamestown, LLC ("Defendant Flowers"). In the first Motion for Summary Judgment, Defendant contends that Plaintiff's claims must be dismissed as a result of Plaintiff's intervening bankruptcy proceedings and his failure to disclose this claim in that proceeding. In the Second Motion for Summary Judgment, Defendant contends that even if Plaintiff's claim is considered, there are no genuine issues of material fact and the action should be dismissed as a matter of law. For the reasons set out below, the Court concludes that Defendant Flowers' first Motion for Summary Judgment should be granted in light of the intervening bankruptcy proceedings. The Court also finds that, even if the matter were properly before the Court, there are no genuine issues of material fact, and that the action should be dismissed.
I. Facts, Claims, and Procedural History
Plaintiff Charles Dixon was employed by Defendant Flowers at Defendant's manufacturing and baking facility in Jamestown, North Carolina, where various bread products are produced. Plaintiff was employed by Defendant as a Production Technician from 1994 until April 6, 2009, when his employment was terminated. (Compl. [Doc. #4] ¶¶ 10, 11.) From October 8, 2005, until his termination, Plaintiff specifically worked as a bread oven operator. In that position, Plaintiff was required to check production schedules to verify the order in which various types of bread would be baked, monitor racks of bread dough that were rising (or "proofing"), set and operate oven temperatures, set equipment and add appropriate toppings as different varieties of bread were baked, and oversee the baking process.
Plaintiff suffers from asthma and breathing problems. (Id. ¶ 6.) As a result of his asthma, Plaintiff uses an inhaler (a small, hand-held device that he puts to his mouth, seals his lips around, and inhales from) as well as an inhale chamber, which is similar to a face mask and is used in conjunction with his inhaler to help him get his "full dosage" of medication. (Pl. Dep. [Doc. #23 Ex. A] at 13-15, 18.) Plaintiff was allowed to use his inhaler at his workstation but not the inhale chamber. (Id. at 17.) Plaintiff states that he was told by Defendant's manufacturing manager, Mr. Rod Moore, that the chamber violated the company's policy on having "brittle plastic" at the workstation. (Id. at 18.) Thereafter, he kept the chamber in his locker. Plaintiff testified that he also uses a portable nebulizer which he was also allowed to keep in his locker at work. (Id. at 15.) The portable nebulizer takes 5 minutes to use and allows him to breathe in a mist of medication. (Id. at 15-16.) The nebulizer requires an electrical connection and could not be used at his workstation because there was no electrical outlet there. (Id. at 16.) In addition, the nebulizer produced a mist which apparently raised concerns regarding potential contamination of the bread if used at Plaintiff's workstation. Plaintiff did not recall ever asking anyone for permission to use his nebulizer at his work station. (Id. at 119.)
Plaintiff was written up for various incidents during the time he worked on the bread line as an oven operator, including on December 9, 2006, in an incident when Plaintiff was not paying attention and allowed the bread to get too big, which Plaintiff admitted that he knew that he made a mistake; on June 30, 2007, when Plaintiff did not check the bread and adjust the times and as a result allowed the bread to get too big, which Plaintiff agreed occurred; on January 30, 2008, during an incident when Plaintiff did not read the card describing the bread type and the wrong toppings were put on the bread as a result of his oversight, which Plaintiff agreed occurred; on May 10, 2008, when he incorrectly read the card describing the bread type and ran the wrong type of bread, resulting in incorrect toppings; and on June 10, 2008, when he ran 4200 units with the wrong toppings. (Id. at 81, 82, 84, 85-86 and Ex. #9, #10, #11, #12, #13.) Plaintiff testified that in February or March of 2009, he asked Rod Moore about being transferred to a position in shipping, but Plaintiff did not know of any specific job opening in that department. (Id. at 123-24.) Plaintiff said that Mr. Moore told him that he had too many write-ups to be transferred. (Id. at 121, 124, 125.)
On March 4, 2009, Plaintiff received another incident report involving a failure to properly monitor the bread. Plaintiff testified that this incident occurred when he had an asthma attack and had to leave the floor to use his nebulizer. (Id. at 89.) Plaintiff said that he tried to find a "break man" but could not and "got blamed for the bread being big." (Id. at 94.) Plaintiff testified that he told his supervisor, Mr. David Chapman, that "there was about a 13-minute proof of where [he] had to use [his] inhaler" (Id. at 94.) According to Mr. Chapman, a "proof skip" occurs when the operator allows the bread dough to rise longer than normal to ensure that all of the dough catches up and rises to the appropriate levels. (Chapman Decl. [Doc. #23 Ex. D] at 6.) According to the incident report for the March 4 incident, Plaintiff "put in a 13 min proof skip to let the bread rise, " which resulted in "unusably short bread" coming out of the oven, followed a few minutes later by "very big bread." The incident report notes a loss of 1, 600 loaves of bread. Plaintiff agreed that this incident "probably did cost" the company over 1, 600 loaves of bread. (Pl. Dep. at 95.) He received a letter from Barbara DeBlaker, Director of Human Resources, advising him that if he violated company rules again before May 10, 2009, he would be subject to discharge. (Id. Ex. 16.)
Plaintiff testified that he was written up again on April 5, 2009, by supervisor David Chapman. (Id. at 102-03.) The write-up states that Plaintiff got mixed up and changed the type of bread too early, causing the loss of 920 loaves of bread. (Id. at 105-06, Ex. 17.) It is not disputed that this mix-up presented the risk that the wrapping department would mistakenly wrap the bread in wrapping which did not list the correct allergens or ingredients, and thus cause a violation of FDA regulations. (Chapman Decl. ¶ 22.) This write-up included a notation that Plaintiff had received four work performance violations within a rolling 12-month period and that the company was terminating his employment as of April 5, 2009. (Pl. Dep. at 103, Ex. 17.) Plaintiff agreed that he had accumulated the required number of counselings to be terminated. (Id. at 109.) Rod Moore and Barbara DeBlaker were present when he was terminated.
Plaintiff testified that Defendant granted the only request for an accommodation that he made, which was to be able to carry his inhaler in his pocket. (Id. at 17, 118.) A doctor's note written on April 22, 2008, requested that Plaintiff not be assigned to mixing flour dough or gluten, and Defendant granted that request as well. (Id. at 114-18, Ex. 18.) When asked if there was any accommodation that Defendant could have made that would have allowed Plaintiff to continue performing his bread oven job, Plaintiff said that if they had left the ventilation system operating he "probably would have been okay." (Id. at 126-27.) He was told that during the period February through April the ventilation system could not operate because it would "mess up the bread." (Id. at 127.) Mr. Moore states in his declaration that the ventilation system allows in ambient outside air and that during the winter months it is turned off because the cold air would excessively cool the bread and cause it to become dry, stale, and of poor quality. (Moore Decl. at 9.) The ventilation system is turned back on around mid-April. (Id.) Fans are available for employees' use according to Mr. Moore, but he says that Plaintiff never requested a fan from him. (Id. at 9-10.)
Plaintiff filed an EEOC charge of discrimination in June 2009, alleging that Defendant Flowers denied him reasonable accommodations for his health conditions, subjected him to a hostile working environment, and terminated his employment based on discrimination because of his medical conditions. (Compl. ¶ 12.) The EEOC issued Plaintiff Dixon a right-to-sue letter. (Id. ¶ 14.) Plaintiff Dixon filed his Complaint against Defendant Flowers in North Carolina state court in December 2010. His First Cause of Action is that Defendant Flowers violated the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111, by: (a) discriminating against him in the terms, conditions, and privileges of employment because of his disability; (b) terminating his employment; (c) filling his position with someone outside of the protected class; and (d) denying a reasonable accommodation that would include allowing him to keep his inhaler in his work area and providing proper ventilation. (Id. at 4-5.) Plaintiff Dixon's Second Cause of Action is for injunctive relief in the form of an injunction preventing Defendant from engaging in disability discrimination, and requiring reinstatement and restoration of wages and other benefits. (Id. at 5-6.) Defendant Flowers removed the action to this Court on January 25, 2011.
Plaintiff Dixon filed a Chapter 7 voluntary bankruptcy petition ("Petition") on February 12, 2011, after the present case had been removed to this Court. (Docket Sheet [Doc. #13-2].) As part of his Petition, Plaintiff Dixon filed several schedules listing his assets and income. Plaintiff Dixon listed his personal property on Schedule B and included in paragraph 21 a reference to a "Workers Compensation Claim" with a value of "Unknown." (Petition [Doc. #13-1] at 11.) Plaintiff also completed a Statement of Financial Affairs, which in Section 4 required him to list all suits and administrative proceedings to which he is or was a party within the one year immediately preceding the filing of his bankruptcy case. In the column where he was required to list the caption of the suit and case number, Plaintiff wrote "Workers Compensation." (Id. at 28.) For the nature of the proceeding, Plaintiff wrote "Pending Workers Compensation Lawsuit." (Id.) Plaintiff did not include any information in the columns where he was to provide the "court or agency and location" and the "status or disposition." (Id.) Finally, in his Claim for Property Exemptions, under the section for listing "Other Exemptions Claimed Under the Laws of the State of North Carolina, " Plaintiff listed "Worker's Compensation benefits, N.C. Gen. Stat. § 97-21." (Id. at 15.) The Trustee concluded that there was no property available for distribution from the estate. The bankruptcy court entered an Order Discharging Debtor on May 23, 2011. (Discharge Order [Doc. #13-3].)
Defendant Flowers argues in its first Motion for Summary Judgment that Plaintiff Dixon failed to list this pending ADA action in his bankruptcy petition. According to Defendant Flowers, this failure has resulted in Plaintiff not having standing in this action, and/or being estopped from continuing to litigate it. Plaintiff Dixon argues that he has standing and that he is not judicially estopped because the reference to a "workers' compensation" action in his Petition is a reference to this action and adequately describes this action. Defendant Flowers addresses the merits of Plaintiff's ADA claim in its second Motion for Summary Judgment.