Wilkes v. Nucor-Yamato Steel Co.

ETTER WILKES PLAINTIFF v. NUCOR-YAMATO STEEL COMPANY DEFENDANT

Case No. 3:14-cv-00224-KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION

September 29, 2015

ORDER

Plaintiff Etter Wilkes brings this action pro se against defendant Nucor-Yamato Steel Company ("Nucor") and alleges claims under Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq., and the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. (Dkt. No. 2). Before the Court is Nucor's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 7). Ms. Wilkes has responded (Dkt. No. 13), and Nucor has replied (Dkt. No. 15).

Nucor styled its reply as including, in the alternative, a motion for summary judgment. It is not clear to the Court if Nucor intends to move for summary judgment in the alternative or if Nucor styled its reply this way because of the way in which Ms. Wilkes styled her response. To the extent Nucor intends to move in the alterative for summary judgment, its filing does not comply with Federal Rule of Civil Procedure Rule 56 and Local Rule 56.1. For this reason, and because the Court determines that it need not convert Nucor's Rule 12(b)(6) motion to one for summary judgment to resolve the matters before it, the Court will not consider Nucor's alternative motion for summary judgment. For the reasons that follow, the Court grants in part and denies in part Nucor's motion to dismiss (Dkt. No. 7).

I. Factual Background

According to her complaint, Nucor employed Ms. Wilkes at its plant in Blytheville, Arkansas, from December 2, 1997, until her termination on March 5, 2014. From September 2000 until the time of her termination, Ms. Wilkes worked as an Inspector in the Roll Mill Finishing Department. She alleges that she was the only African-American female on her work crew and the only female in her department.

A. Ms. Wilkes's Claims

Ms. Wilkes alleges four groups of claims under the following headings: (1) "Discrimination on the Basis of Race and Gender - Equal Access"; (2) "Discrimination Based on Race, Sex, and Disability - Long Term Disability"; (3) "Discrimination on the Basis of Race, Sex, and Disability - Failure to Make a Reasonable Accommodation"; and (4) "Discrimination on the Basis of Race, Gender, and Disability - Wrongful Termination." (Dkt. No. 2).

First, to support her race and gender "equal access" claims, Ms. Wilkes alleges that Nucor failed to provide a women's restroom for her use in her work area. Specifically, she alleges that she had access to only two women's restrooms, both of which were a considerable distance from her work area; that Nucor locked her out of one of these restrooms for a week; that Nucor failed to fulfill its representation that it would build a women's restroom in Ms. Wilkes's work area; and that males in her work area had access to four restrooms in locations that did not require them to walk outside to gain access, as she had to do (Dkt. No. 2, ¶¶ 13-17). She further describes one occasion on November 5, 2013, in which her alleged disability, discussed below, caused her difficulty in returning to her work area from the restroom in the Roll Mill's main office (Id., ¶ 16).

Ms. Wilkes's bases her second group of claims on allegations that Nucor did not properly assist her with obtaining long-term disability insurance benefits (Dkt. No. 2, ¶¶ 19-29). She alleges that, after becoming ill at the end of November 2012 and exhausting her vacation and short-term disability benefits, Nucor provided her with the paperwork for long-term disability benefits "approximately two weeks off schedule" and provided inaccurate information to Nucor's third-party disability insurance carrier, Liberty Mutual, regarding her employment, which resulted in the denial of her long-term disability benefits. She further alleges that Nucor threatened to fire her when she had to request the paperwork a second time. Ms. Wilkes claims that she is the only African-American female who has been denied benefits, while male co-workers who have applied for long-term disability benefits have been approved without issue. In addition, Ms. Wilkes alleges that Nucor avoided and failed to respond meaningfully to her requests for Nucor's assistance in 2013 to appeal Liberty Mutual's decision to deny her long-term disability benefits.

For her third group of claims, the failure-to-accommodate claims, Ms. Wilkes alleges that, after she took off work in November 2012, she was diagnosed with morbid obesity, lumbar degenerative disc disease, and knee degenerative joint disease, all of which she asserts render her disabled within the meaning of the ADA. She contends that she informed Nucor in October 2013 of her need for an accommodation in that her doctor intended to release her to work with the restriction that she would need frequent rest breaks. Ms. Wilkes alleges that Nucor would not allow her to return to work with any restrictions and that, as a result, her doctor released her to return to work on October 27, 2013, without any restrictions. She claims that she learned upon returning to work that Nucor had already hired a white male without a disability to replace her. Although she alleges she was replaced, Ms. Wilkes states that she returned to work inOctober 2013 and worked three-and-a-half days over two pay periods. She claims that, because of the distance required for her to walk to the restroom, her doctor placed her back on restrictions, and she was forced to take off work again. She asserts that Nucor made no efforts to provide any reasonable accommodation and made negative comments to the effect that Ms. Wilkes needed to find another doctor (Dkt. No. 2, ¶¶ 30-40).

Lastly, Ms. Wilkes alleges race, gender, and disability discrimination claims for wrongful termination based on her March 5, 2014, termination. She claims that she was terminated based on a policy to terminate employees who are off work for 15 consecutive months, despite the fact that she returned to work for three-and-one-half days in October 2013. She alleges that she was told on at least two occasions that she needed to make up her mind whether she would return to work and that she was going to be fired. She further alleges that Nucor's management often made inappropriate comments to her that were discriminatory and treated her differently on the basis of her race, gender, and disability (Dkt. No. 2, ¶¶ 41-47).

B. Equal Employment Opportunity Commission Filings

Ms. Wilkes alleges in her complaint that she filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 18, 2014. She did not attach to her complaint any EEOC documents. However, Nucor has presented as an exhibit to its motion Ms. Wilkes's Form 5 charge signed February 25, 2014, and stamped as received by the EEOC on the same date (Dkt. No. 8-1). In her EEOC charge, Ms. Wilkes checked the boxes for "Sex" and "Disability" discrimination; she did not check the box for "Race." (Id.). In the section describing particulars, she stated as follows:

I was hired December 2, 1997, and my current position is Inspector. I was told a female would never be placed in my position. There has not been a ladies' room in my building for the last 14 years. When I first started using the ladies' room in the management building a deadbolt lock was placed on it and I was denied a keyto gain access. I still have to go outside to use the restroom. I developed a disability and began taking off in November 2012. I was denied short-term disability twice. My personnel office has not assisted me with accurate, professional help in dealing with claims/paperwork. I have been attending physical therapy and paying a third of my medical expenses out of pocket.

I was told males did not want to loose [sic] one of their four restrooms. I was told the cost to build one was too high. I was told that my doctor jeopardized my health. I also was told that I need to make up my mind because I was going to be fired.

I believe I was not provided/given restroom access because of my sex (female) in violation of Title VII of the Civil Rights Act of 1964, as amended. I also believe I am not being assisted with needed information to submit documents because of my disability in violation of the Americans with Disabilities Act of 1990, as amended.

(Dkt. No. 8-1).

According to Nucor, Ms. Wilkes never amended her EEOC charge after her termination, and Ms. Wilkes does not allege or argue otherwise. According to Ms. Wilkes's complaint, the EEOC issued a notice of right to sue on June 27, 2014; neither party has presented that document to the Court.

Ms. Wilkes attaches to her response to Nucor's motion to dismiss an EEOC intake questionnaire she signed on February 18, 2014, and which the EEOC stamped as received on the same date (Dkt. No. 13-1). In her intake questionnaire, Ms. Wilkes checked the boxes for race, sex, and disability discrimination; specifically attributes some alleged discrimination to her race; and mentions requesting an accommodation.

The intake questionnaire states under the signature line, in smaller print, that its principal purpose "is to solicit information about claims of employment discrimination, determine whether the EEOC has jurisdiction over those claims, and provide charge filing counseling, as appropriate. Consistent with 29 CFR 1601.12(b) and 29 CFR 1628.8(c), this questionnaire may serve as a charge if it meets the elements of a charge." (Dkt. No. 13-1, at 4).

Just above the signature line, the questionnaire provides the following instructions for checking one of two alternative boxes:

Please check one of the boxes below to tell us what you would like us to do with the information you are providing on this questionnaire. If you would like to file a charge of job discrimination, you must do so either within 180 days from the day you knew about the discrimination, or within 300 days from the

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