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Hardenburg v. Dunham's Athleisure Corp.

United States District Court, E.D. Michigan

August 9, 2013


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[Copyrighted Material Omitted]

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For Darrell Hardenburg, Plaintiff: Joseph R. Furton, Jr., Dearborn, MI; Peter N. Camps, Champnella Furton & Camps PLC, Dearborn, MI.

For Dunham's Athleisure Corporation, Defendant: Louis B. Eble, Nemeth Burwell, P.C., Detroit, MI; Patricia M. Nemeth, Nemeth Burwell, Detroit, MI.


Hon. Lawrence P. Zatkoff, U.S. District Judge.

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AT A SESSION of said Court, held in the United States Courthouse, in the City of Port Huron, State of Michigan, on August 9, 2013


This matter is before the Court on Defendant's Motion for Summary Judgment [dkt 24]. The Motion has been fully briefed. The Court finds that the facts and legal arguments are adequately presented in the parties' papers such that the decision process would not be significantly aided by oral argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(e)(2), it is hereby ORDERED that the Motion be resolved on the briefs submitted. For the following reasons, Defendant's Motion for Summary Judgment is GRANTED.


A. Factual Background

Plaintiff Darrell Hardenburg (" Plaintiff" ) was hired by Defendant Dunham's Athleisure Corporation (" Defendant" ) as an accounts payable clerk in October of 1997. Plaintiff was supplied with Defendant's Associate Handbook, which, among other things, expressed that Defendant had a company policy prohibiting discriminatory conduct and harassment. The handbook also provided a reporting mechanism for victims or witnesses of discriminatory conduct or harassment as follows: the victim or witness notifies Defendant by either (1) informing a supervisor or manager; (2) informing a department head; (3) informing the Director of Human Resources; or (4) calling the alert hotline. If the victim or witness believes that matter remained unresolved, he or she must contact the Senior Vice President of Human Resources. Plaintiff acknowledged that he read and fully understood the policies contained in the handbook, as evidenced by his signature on the " Associate Handbook Receipt" page.[1]

Plaintiff's duties as an accounts payable clerk comprised processing/retailing/updating vendor invoices (collectively referred to as " processing invoices" ), processing store receiving paperwork (" processing store paperwork" ), and opening the mail. The invoices were divided among four accounts payable clerks, with Plaintiff being responsible for vendors S-Z. Likewise, the task of processing the store paperwork was divided among the four clerks.

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In approximately 1999, Plaintiff transitioned into an auditing position ( i.e., a second position) which required auditing vendor invoices. Plaintiff felt this assignment to be " more stressful" than his initial job. Late in 2006, Plaintiff again transitioned into an " extremely stressful" position ( i.e., a third position) where his primary duties included matching invoices to receipts and researching problems with Defendant's distribution center.

Plaintiff suffered a stroke on July 1, 2008, and remained off work for a number of weeks. According to Plaintiff, he is now cognitively deficient as a result of the stroke. On August 11, 2008, Plaintiff returned to work on a part-time basis. Plaintiff and Lynette Kelley (" Kelley" )--Plaintiff's direct supervisor--agreed that Plaintiff would return to his first assignment as an accounts payable clerk, but with reduced responsibilities to facilitate his assimilation back to work and to accommodate his part-time schedule. Specifically, Plaintiff's job duties only entailed processing vendor invoices A-E. Although processing store paperwork was a duty normally assigned to an accounts payable clerk, Plaintiff was relieved of that responsibility in the interim.

Plaintiff was cleared by his doctor to return to full-time status on September 15, 2008. Plaintiff gradually attempted to " [take] on more responsibilities" of his initial position, such as opening the mail. Plaintiff was, however, unable to process store paperwork subsequent to his stroke--this responsibility was eventually shouldered to the other three similarly-situated accounts payable clerks. Plaintiff admitted during his deposition that, although he hoped that he could return to processing this paperwork after his stroke, such a goal was unrealistic because Plaintiff struggled to maintain pace with his already-reduced responsibilities.

An employee evaluation of Plaintiff dated February 26, 2009, notes, among other things, that Plaintiff's invoices were accurate; that Plaintiff must improve his quantity of work as he " does not come close" to finishing his assigned tasks; that Plaintiff " continued to fall behind in his responsibilities; " that Plaintiff cannot complete the same quantity of work as the other accounts payable clerks; and that the other accounts payable clerks completed Plaintiff's share of processing store paperwork.[2] This evaluation form was signed by Plaintiff, Kelley, and Joan Long, Defendant's Vice President and Controller.

On August 25, 2009, Kelley approached Plaintiff about some overdue invoices. According to Kelley, Plaintiff became upset, stated that he was disabled, and explained that his disability prevented him from doing the " same amount of work as everyone else." Plaintiff also threatened to sue Defendant for discrimination. In response to Plaintiff's meeting with Kelley, Plaintiff met with Jan Rieckhoff (" Rieckhoff" ), Defendant's Director of Human Resources, and Dan Cieslak (" Cieslak" ), Defendant's Senior Vice President of Human Resources, on September 17, 2009. The purpose of this meeting was two-fold: (1) to address Plaintiff's " outburst" on August 25; [3] and (2) in response to Plaintiff's claim of disability, to determine if any type of accommodation(s) could be made to help Plaintiff adequately perform his job. Notably, Rieckhoff and Cieslak told Plaintiff to " think about" how Defendant could further

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accommodate him (aside from a change in job positions and already-reduced duties), and to follow-up with either Rieckhoff or Cieslak with any suggestions or proposals. Plaintiff failed to do so.

A second evaluation of Plaintiff was drafted on April 15, 2010. Of import, the evaluation states that Plaintiff's productivity is " well below the accounts payable department standards; " that he consistently fails to complete his assigned work; that portions of his assigned tasks must be shifted to other clerks to meet deadlines; that Plaintiff rarely communicates when he falls behind on assigned tasks; and, overall, that Plaintiff's quantity of work did not improve since his last evaluation. Plaintiff likewise signed this evaluation.

Plaintiff reviewed the substance of his second evaluation with Kelley and Rieckhoff on or about May 14, 2010. Rieckhoff reminded Plaintiff that he had not yet proposed any further accommodations that Defendant could provide. Rieckhoff also reiterated that Plaintiff's " current situation of reduced workload/non-performance could not continue." As a byproduct of this meeting, it was determined that Kelley would meet daily with Plaintiff to help him prioritize his work and to provide suggestions on how to be more efficient. Kelley and Plaintiff both agreed that these meetings generally kept Plaintiff " on task."

During the course of Plaintiff and Kelley's regular meetings, she noticed a few areas in which Plaintiff could improve his productivity. Kelley suggested that Plaintiff not highlight the different fields on the invoices or check off every item on the purchase orders. Kelley would later testify, " I told him to try not doing that, maybe that would help him." The suggestions, according to Kelley, would " help him have more time to . . . process more invoices." On the other hand, Plaintiff testified that unless he highlighted the invoices and checked-off the purchase orders, he " could not keep track of what [he] had to be doing."

Plaintiff was officially terminated by Defendant on January 4, 2011, because his " quantity of work ha[d] not improved since his last review." The form states Plaintiff's " productivity remain[ed] well below the accounts payable department standards[; ]" " he consistently fail[ed] to complete even [his] reduced responsibilities[; ]" and he " regularly d[id] not complete all of his assigned work[.]" The evaluation concludes by stating: " [Plaintiff's] employment will be terminated since previously noted performance deficiencies were not corrected and maintained." Plaintiff, Kelley, and Rieckhoff signed this form, as all were present at the termination meeting.

Additionally, Rieckhoff drafted notes from the January 4, 2011, meeting, which explain as follows:

When asked how he thought he had been performing since we talked last, [Plaintiff] at first stated he was doing ok and he was caught up. I reminded him we were very slow at this time of the year, and that [Kelley] got involved and got [Plaintiff] caught up in September. However, since we spoke in April, until September, [Plaintiff was] not caught up. [Plaintiff] agreed.
[Plaintiff] stated he wished we would have terminated his employment back when he first returned and it was obvious he couldn't do the job.[4] I told him

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we wanted to give him every opportunity to succeed, and that we were very patient, but we could no longer keep him in his position. By giving [Plaintiff] this much time he was able to keep getting full pay and benefits that much longer. So while he wishes we would have termed [sic] him back then we were trying to be fair and give him the opportunity to do the job. [Plaintiff] agreed that was another way of looking at it.
[Plaintiff] stated he appreciated us putting him into his old position when he returned (from his medical leave). I reminded him we didn't just put him back in his old position but also shifted many of the responsibilities of the position to others, so he was given a reduced version of the old position. And he was not completing the reduced workload.
[Plaintiff] stated he would call or email if he had any other questions, he said he had to comprehend all this. He was not emotional during the meeting as he had been in past meetings.

Since his termination, Plaintiff has not obtained--or applied for--another job. Plaintiff is, however, currently collecting social security disability benefits and unemployment benefits.

Plaintiff filed a one-count Complaint against Defendant alleging " violations of the Americans With Disabilities Act." Presently before the Court is Defendant's Motion for Summary Judgment, ...

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