Case 2:06-cv-02611-JDB-dkv Document 1-1 Filed 09/19/2006 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,
v.
SHARP MANUFACTURING COMPANY OF AMERICA, A DIVISION OF SHARP ELECTRONICS CORPORATION,
Defendant.

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Civil Action No.

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COMPLAINT

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JURY TRIAL DEMANDED

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NATURE OF THE ACTION

This is an action under Title I of the Americans With Disabilities Act of 1990 and Title I

of the Civil Rights Act of 1991, to correct unlawful employment practices on the basis of

disability and to make whole the Charging Party, Delores Vaughn. The Commission alleges that

the Defendant failed to provide Ms. Vaughn with a reasonable accommodation and discharged

her because of her disability, osteoarthritis.

JURISDICTION AND VENUE

1. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §§451, 1331, 1337,

1343, and 1345. This action is authorized and instituted pursuant to Section 107(a) of the

Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C. §12117(a), which incorporates by

reference Sections 706(f)(1) and (3) of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. §§2000e-5(f)(1) and (3), and pursuant to Section 102 of the Civil Rights Act of 1991, 42

U.S.C. §1981a.

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2. The unlawful employment practices alleged below were and are now being committed in the Western District of Tennessee, Western Division.
PARTIES 3. Plaintiff, Equal Employment Opportunity Commission (the “Commission”) is an agency of the United States of America charged with the administration, interpretation, and enforcement of Title I of the ADA and is expressly authorized to bring this action by Section 107(a) of the ADA, 42 U.S.C. §12117(a), which incorporates by reference Sections 706(f)(1) of Title VII, 42 U.S.C. §2000e-5(f)(1). 4. At all relevant times, Defendant, Sharp Manufacturing Company of America, (hereinafter referred to as “Employer” “Defendant” or “Sharp”) has been and is now a corporation doing business in the State of Tennessee and has continuously had and does now have at least fifteen (15) employees. Defendant employer is a company engaged in the manufacture of a variety of products including, among other things, facsimile machines, microwave ovens and solar modules 5. At all relevant times, Defendant Employer has continuously been an employer engaged in an industry affecting commerce within the meaning of §101(5) of the ADA, 42 U.S.C. §12111(5), and Section 107(7) of the ADA, 42 U.S.C. §12117(a), which incorporates by reference Sections 701(g) and (h) of Title VII, 42 U.S.C. §§ 2000e(g) and (h). 6. At all relevant times, Defendant Employer has been a covered entity under Section 101(2) of the ADA, 42 U.S.C. §12111(2).
STATEMENT OF CLAIMS 7. More than thirty (30) days prior to the institution of this lawsuit, Delores Vaughn filed a charge with the Commission alleging a violation of Title I of the ADA by Defendant
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Employer. All conditions precedent to the institution of this lawsuit have been fulfilled. 8. The Commission alleges that Delores Vaughn is a qualified individual with a
disability under the definition of the Americans with Disabilities Act. She has osteoarthritis and as a result of her condition she is substantially limited in the major life activity of standing and walking.
9. Charging Party started working for Defendant in 1993 as an assembler. She was initially placed as a temporary worker through a temporary agency. She assembled televisions on an assembly line. Her job duties included plugging up the speakers and putting the backs on the televisions. She sat at one station and used a stool while performing her job duties. Charging Party was hired on as a casual in 1994 and in 1996, she became a permanent assembler in the Microwave Oven Production Department. After Defendant instituted an ergonomic policy, requiring workers to rotate from station to station, Charging Party continued to use a stool while she moved from station to station. Other workers also used a stool while working in that department.
10. In the winter of 2003, Ms. Vaughn was moved to a part of the assembly line that required constant standing. She asked her manager to place her back to her original position because the constant standing caused her severe pain and swelling. Her request was denied. Hoping to find a sitting position, Ms. Vaughn requested a transfer to the Solar Production Department. Once there, however, she learned that she would not be able to perform the duties of her new job while seated. She attempted to perform the job while standing, but the pain was too great.
11. Ms. Vaughn then contacted the company nurse and the manager of safety and
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environment in May of 2004. She told them about the limitation in her ability to stand and her need to use a stool while working. As requested by the company officials, she followed up with medical documentation. She also requested a transfer back to a vacant position in the Microwave Oven Production Department so she could use a stool, as she had done for several years in the past. Thereafter, Charging Party was told to clock out pending an investigation of her situation. Her badge was taken and she was not allowed on the premises after she was sent home. Charging Party was not reassigned to her old position. Instead, she was terminated on or around June 11, 2006. Her separation notice stated that she was: “Physically unable to maintain industrial employment.”
12. The effect of these practices complained of above has been to deprive Ms. Vaughn of equal employment opportunities and otherwise adversely affect her status as an employee because Defendant Employer failed to provide her with a reasonable accommodation and discharged her because she is disabled, as defined by the ADA.
13. The unlawful employment practices complained of above were and are intentional. 14. Defendant Sharp, at all relevant times, has been acting with malice or reckless indifference to the federally protected rights of Delores Vaughn in violation of the ADA, 42 U.S.C. Ss12101 et seq.
PRAYER FOR RELIEF WHEREFORE, the Commission respectfully prays that this Court: A. Grant a permanent injunction enjoining the Defendant Sharp, its officers, successors, assigns and all persons in active concert or participation with it, from engaging in any employment practice which discriminates on the basis of disability.
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B. Order Defendant to institute and carry out policies, practices and programs which provide equal employment opportunities for qualified individuals with disabilities, and which eradicate the effects of past and present unlawful employment practices.
C. Order Defendant Sharp to make whole Delores Vaughn by providing her with appropriate back pay with prejudgment interest, in amounts to be proved at trial, reinstatement with a reasonable accommodation and other affirmative relief necessary to eradicate the effects of its unlawful employment practices.
D. Order Defendant Sharp to make whole Delores Vaughn by providing compensation for nonpecuniary losses, including emotional pain, suffering, inconvenience and mental anguish in amounts to be proven at trial.
E. Order Defendant Sharp to pay punitive damages for its malicious and/or reckless conduct, in an amount to be determined at trial.
F. Grant such further relief as the Court deems necessary and proper; and, G. Award the Commission its costs in this action.
JURY TRIAL DEMAND The Commission requests a jury trial on all questions of fact, raised by the Complaint.
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Respectfully submitted, RONALD S. COOPER General Counsel JAMES L. LEE Deputy General Counsel GWENDOLYN YOUNG REAMS Associate General Counsel s/ Faye A. Williams (by permission DS) FAYE A. WILLIAMS Regional Attorney TN Bar No. 11730 s/ Terry Beck (by permission DS) TERRY BECK Supervisory Trial Attorney TN Bar No. 9346 s/ Deidre Smith DEIDRE SMITH Senior Trial Attorney TN Bar No. 18499 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue, Suite 621 Memphis, Tennessee 38104 Telephone: (901) 544-0140
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff,

v.
SHARP MANUFACTURING COMPANY OF AMERICA, A DIVISION OF SHARP ELECTRONICS CORPORATION,

No. 06-2611

Defendant. _____________________________________________________________________________
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT _____________________________________________________________________________ The Plaintiff, Equal Employment Opportunity Commission (“EEOC”), brought the instant action against Defendant Sharp Manufacturing Company of America (“Sharp”) on behalf of Delores Vaughn, one of Sharp’s former employees, based on allegations that the Defendant violated the Americans with Disabilities Act (“ADA”). Before the Court is Sharp’s motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. No. 16.) The EEOC has responded, and this motion is appropriate for disposition. For the reasons set forth below, the motion is granted in part and denied in part.
BACKGROUND The following facts are undisputed unless noted. Vaughn began working for Sharp in 1993 as a temporary hire, but became a permanent employee two years later. (Doc. No. 16, Def.’s Statement of Facts ¶ 1.) Vaughn worked on the second shift of the “B-line” as an F-2 Microwave

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Assembler until that line was shut down in January of 2004. (Id. ¶ 2.) She then moved to the first shift of the “C-line.” (Id.) Vaughn’s job duties on the C-line were different than those on the B-line, although she was still assembling microwaves. (Id. ¶ 3.) She was assigned to a standing station on the C-line, even though, as the EEOC contends, there were seated positions available. (Doc No. 19, Pl.’s Statement of Facts ¶ 3.) Shortly thereafter, she had to go to the hospital because she was experiencing severe pain in her legs as a result of her osteoarthritis. (Id. ¶¶ 3,11.) Vaughn then made her first request for a seated position, which was denied. (Id. ¶ 3.)
In late February or early March of 2004, Vaughn successfully bid on a position as an assembler in the Solar Production Department (“Solar”) and began that work on March 22.1 (Doc. No. 16, Def.’s Statement of Facts ¶ 4.) According to the EEOC, Vaughn sought the assembler position because her pain had become unbearable and she hoped that she would be able to sit in Solar. (Doc No. 19, Pl.’s Statement of Facts ¶ 4.) Unfortunately, her new position also required her to stand. (Doc. No. 16, Def.’s Statement of Facts ¶ 6.) After two months of working at Solar, Vaughn brought in a statement from her internal medicine doctor and an orthopedist advising that she should no longer stand at work. (Doc No. 19, Pl.’s Statement of Facts ¶ 5.) Thus, she asked to be assigned to a seated position. (Id.) After denying the request, Sharp sent her home. (Doc. No. 16, Def.’s Statement of Facts ¶ 7; Doc No. 19, Pl.’s Statement of Facts ¶ 7.)
Subsequently, Vaughn requested that she be moved back to the Microwave Oven Production Department (the “Microwave Department”) and be allowed to sit on a stool for her entire shift. (Doc. No. 16, Def.’s Statement of Facts ¶ 8.) Sharp alleges that it had no F-2 Assembler positions
1 Article 7 of the Collective Bargaining Agreement between Sharp and its union, the International Brotherhood of Electrical Workers, outlines how Sharp employees bid on available jobs. (Doc. No. 19 Ex. 9 to Dep. of T.C. Jones.) In order to bid on a vacant position, employees must have been at their present job for at least sixth months. (Id. ¶ 7.8.)
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in the Microwave Department available and posted for bidding. (Id. ¶ 9.) The EEOC disputes this contention, claiming that the Defendant began hiring “casuals” and F-2 Assemblers within only a few days of sending Vaughn home. (Doc No. 19, Pl.’s Statement of Facts ¶ 9.) Vaughn filed a Charge of Discrimination with the EEOC on May 26, 2004, which initiated the present case. (Doc. No. 16, Def.’s Statement of Facts ¶ 23.) On June 8, 2007, approximately two weeks after being sent home, Vaughn was terminated by Sharp. (Doc. No. 19 Ex. 9, Separation Notice.) Vaughn submitted an application for Social Security Disability Insurance (“SSDI”) on June 18, 2004, wherein she claimed that she became disabled on June 8. (Doc. No. 16, Def.’s Statement of Facts ¶¶ 24-25.)
The EEOC filed the instant lawsuit in this Court on September 19, 2006, contending that Sharp’s actions violated the ADA. (Doc. No. 1, Compl. at 4.) The Complaint seeks a permanent injunction enjoining the Defendant from further discrimination on the basis of disability, as well as back pay, punitive damages, and other forms of relief. (Id. at 5.) The Defendant filed the instant dispositive motion on October 31, 2007.
STANDARD OF REVIEW Rule 56 (c) provides that a
judgment . . . shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Canderm Pharmacal, Ltd. v. Elder Pharms, Inc., 862 F.2d 597, 601 (6th Cir. 1988). In reviewing a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When the motion is
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supported by documentary proof such as depositions and affidavits, the nonmoving party may not rest on his pleadings but, rather, must present some “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. It is not sufficient “simply [to] show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. These facts must be more than a scintilla of evidence and must meet the standard of whether a reasonable juror could find by a preponderance of the evidence that the nonmoving party is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. In this Circuit, “this requires the nonmoving party to ‘put up or shut up’ [on] the critical issues of [his] asserted causes of action.” Lord v. Saratoga Capital, Inc., 920 F. Supp. 840, 847 (W.D. Tenn. 1995) (citing Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989)). Finally, the “judge may not make credibility determinations or weigh the evidence.” Adams v. Metiva, 31 F.3d 375, 379 (6th Cir. 1994).
ANALYSIS The ADA prohibits employers from discriminating against a qualified individual with a disability based on that disability. 42 U.S.C. § 12112(a). In a direct evidence case, such as the one before the Court, (1) The plaintiff bears the burden of establishing that he or she is disabled. (2) The plaintiff bears the burden of establishing that he or she is ‘otherwise qualified’ for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged ‘essential’ job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.
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Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 869 (6th Cir. 2007) (quoting Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 452 (6th Cir.), cert. denied, 543 U.S. 817 (2004)). Sharp makes three arguments in support of its motion. First, it contends that the EEOC cannot produce sufficient evidence that Vaughn is disabled. Second, it claims that Vaughn is not a qualified individual with a disability. Last, it insists that Vaughn could not reasonably be accommodated. (Doc. No. 16, Def.’s Mem. in Supp. Mot. Summ. J., at 10-28.) The Court will address these arguments in turn. A. WHETHER VAUGHN IS DISABLED
A “disability” under the ADA is defined as (A) a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.
42 U.S.C. § 12102(2). The EEOC seeks only to satisfy the first definition of disability by proving that Vaughn suffers from osteoarthritis that is severe enough to substantially limit her ability to stand and walk. (Doc. No. 16, Def.’s Statement of Facts ¶ 11.) Standing and walking are both considered major life activities. See 29 C.F.R. § 1630.2(i) (walking); Plant v. Morton Int’l, Inc., 212 F.3d 929, 937 (6th Cir. 2000) (standing) (citations omitted). A person is substantially limited within the meaning of the ADA if he or she is: “(i) [u]nable to perform a major life activity that the average person in the general population can perform; or (ii) [s]ignificantly restricted as to the condition, manner or duration under which [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.” 29 C.F.R. § 1630.2(j)(1).
In this case, the medical evidence is as follows. On May 14, 2004, almost a month before Sharp terminated Vaughn, Dr. Dana Wright, who treated her arthritis, wrote a letter to Sharp stating that “a sitting position [for Vaughn] would be better than standing.” (Doc. No. 19 Ex. 6.) Five days
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later, Dr. W. Lee Moffatt, Vaughn’s orthopedist, included in a note that “she should be permanently restricted from standing to work.” (Doc. No. 19 Ex. 4 to Dep. of Dr. Moffatt.) In his deposition, Dr. Moffatt testified that Vaughn told him that she was able to stand for two hours and walk for two to three hours. (Doc. No. 19 Ex. 7, Dep. of Dr. Moffatt, at 6, 10-11.) On June 1, 2004, Dr. Moffatt wrote another memo to Sharp, stating that Vaughn “wants to return to work, but she will have some difficulties with prolonged standing. I will try brace supports to both knees and both ankles while standing at work. Return to regular duty Thursday 6/3/04.” (Doc. No. 19 Ex. 4 to Dep. of Dr. Moffatt.) In his deposition, Dr. Moffatt admitted that he agreed to release her to return to work full duty, without restrictions. (Doc. No. 19 Ex. 7, Dep. of Dr. Moffatt, at 10.) According to Dr. Moffatt, Vaughn reported that her knee pain had improved. (Id. at 9.) Dr. Arsen Manugian, a Sharp physician, examined Vaughn several days later, on June 7, 2004. (Doc. No. 19 Ex. 8, Dep. of Dr. Manugian, at 5.) He testified that she walked with considerable difficulty and that he thought she could “go back to a sedentary type position where she could sit, occasionally stand, wear her braces . . .” (Id. at 8.) Specifically, he thought she could stand for about an hour at a time three times during an eight hour shift, depending on whether her arthritis was flaring up or not. (Id. at 5, 9.) According to Dr. Manugian, Vaughn stated that “she didn’t feel she could go back to . . . the position she was in where she had to stand for long periods of time.” (Id. at 8.)2
Vaughn herself testified that she could stand, but that it became very painful after five or ten minutes. (Doc. No. 19 Ex. 1, Dep. of Delores Vaughn, at 77.) Even her knee braces did not help. (Id. at 80.) In addition, Vaughn estimated that she could walk about a block at a time, or from her
2 The EEOC has also introduced the testimony of Dr. Anna M. Hicks, who examined Vaughn in September of 2004. Because this examination took place approximately three months after Vaughn was discharged, the Court will not consider it.
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car in the employee parking lot to her work station. (Id. at 84.) Vaughn also stated that by the time she was terminated, her condition had been greatly aggravated after months of standing. (Id. at 88.) Her health further deteriorated when she lost her insurance as a result of being terminated and had no medication (Id.)
1. Standing The Sixth Circuit recently held that a hairdresser who could only stand for fifteen to twenty minutes at a time, or sometimes for an hour or two, was not substantially limited in her ability to stand. Bryson v. Regis Corp., 498 F.3d 561, 575 (6th Cir. 2007). Other circuits have come to similar conclusions. See, e.g., Williams v. Excel Foundry & Mach., Inc., 489 F.3d 309, 312 (7th Cir. 2007) (“Because we also believe that thirty to forty minutes is not a ‘very brief’ period, we find that Williams's inability to stand for longer periods does not constitute a substantial limitation on the major life activity of standing.”); Dupre v. Charter Behavioral Health Sys., Inc., 242 F.3d 610, 614 (5th Cir. 2001) (rejecting claim of an individual who could not stand continuously for more than one hour without sitting for a while thereafter); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 186 (3d Cir. 1999) (upholding summary judgment against an employee who could only stand or walk for 50 minutes in an hour). In Bryson, however, the employee only needed a three to four minute break to recover from standing for fifteen to twenty minutes. 498 F.3d at 567. Thus, she could work in a standing position for over forty-five minutes during the course of an hour. Similarly, in Williams, the employee needed to sit or lie down for only “a brief period” after standing for thirty to forty minutes. 489 F.3d at 310. The employee in Taylor required a ten minute break after standing for an hour. 177 F.3d at 186. The Court finds that there is a material issue of fact as to the extent of Vaughn’s limitation. If true, Vaughn’s own testimony that by the end of May she could only stand for about ten minutes without severe pain and Dr. Manugian’s finding that she was only physically capable of standing
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for about three hours in the course of an eight hour shift indicate that she may have been substantially limited in her ability to stand. However, that testimony appears to be contradicted by Dr. Wright’s mildly worded suggestion that a seated position would suit Vaughn better than a standing one and Dr. Moffatt’s June 1, 2004 finding that Vaughn could return to work without restrictions. A reasonable jury could find in the EEOC’s favor, however, especially in light of the fact that Dr. Moffatt’s note can be interpreted as a reluctant concession to Vaughn’s own desire to attempt to return to work, rather than lose all income and benefits. (See Doc. No. 19 Ex.. 4 to Dep. of Dr. Moffatt (stating that Vaughn “wants to return to work, but she will have some difficulties with prolonged standing.”).)
2. Walking The Defendant argues that even if Vaughn was substantially limited in her ability to walk, that limitation has no bearing on this case because her proposed accommodation, being able to work seated, only relates to her alleged inability to stand. (Doc. No. 16, Def.’s Mem. in Supp. Mot. Summ. J., at 12.) The Eighth Circuit has held that “there must be a causal connection between the major life activity that is limited and the accommodation sought.” Wood v. Crown Redi-Mix, Inc., 339 F.3d 682, 687 (8th Cir. 2003). In this case, there is no evidence that it was Vaughn’s inability to walk that motivated her accommodation request. Rather, Vaughn’s own testimony supports the Defendant’s argument that her request to be allowed to work in a seated position was based on the pain she experienced standing, not walking. (See, e.g., Doc. No. 19 Ex. 1, Dep. of Delores Vaughn, at 31, 41, 46.) Thus, no ADA claim is permitted on the basis that Vaughn was substantially limited in her ability to walk. B. WHETHER VAUGHN IS A QUALIFIED INDIVIDUAL WITH A DISABILITY According to the ADA, a qualified individual with a disability is someone with a disability
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“who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The Defendant argues that Vaughn is not a qualified individual with a disability in light of the fact that she submitted a sworn statement in her application for SSDI that asserted that she was unable to work because she was disabled. (Doc. No. 16, Def.’s Mem. in Supp. Mot. Summ. J., at 15-19.) The Supreme Court has held that “pursuit, and receipt, of SSDI benefits does not automatically estop the recipient from pursuing an ADA claim.” Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 797 (1999). This is because while the ADA defines a “qualified individual” as one who can perform the essential functions of her job with reasonable accommodation, the Social Security Act “does not take the possibility of ‘reasonable accommodation’ into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI.” Id. at 803. “Nonetheless, an ADA plaintiff cannot simply ignore her SSDI contention that she was too disabled to work. To survive a defendant's motion for summary judgment, she must explain why that SSDI contention is consistent with her ADA claim that she could ‘perform the essential functions’ of her previous job, at least with ‘reasonable accommodation.’” Id. at 798.
In this case, the Plaintiff argues that there is no inconsistency between her ADA claim and her SSDI application because her “situation changed” from the time when she filed her EEOC charge to when she completed her SSDI application. (Doc. No. 19, Pl.’s Mem. in Opp. to Def.’s Mot. Summ. J. (“Pl.’s Mem. in Opp.”), at 18.) According to the EEOC, Vaughn was able to work with a reasonable accommodation when she filed her charge of discrimination, but
[w]hen she completed her SSDI application, her condition had worsened after being forced to stand for several months. She said she was in such pain that even morphine didn’t help. She had also run out of the medicine: she had no pain meds and she was having seizures because she was without insulin. (Id. (internal citations to the record omitted).) Thus, the Defendant submits, by the time Vaughn filed for SSDI benefits, she could no longer have worked at Sharp even with a reasonable accommodation. (Doc. No. 16, Dep. of Delores Vaughn, at 101 (admitting that she was unable to perform any job by the time she applied for SSDI).) The record reveals that Vaughn filed the EEOC
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charge on May 26, 2004, exactly one week after Sharp sent Vaughn home after denying her latest request for a seated position. (Doc. No. 16, Ex. 5 to Dep. of Delores Vaughn, Charge of Discrimination.) Vaughn’s SSDI application, which was filed on June 18, 2004, states that Vaughn became unable to work because of a disabling condition on June 8, 2004, the same day she was officially discharged from Sharp and only two weeks after she filed her EEOC charge. (Doc. No. 16, Ex. 6 to Dep. of Delores Vaughn, SSDI Application, at 1.)
In light of this evidence, the Court must ask whether the Plaintiff’s explanation of the apparent inconsistency between Vaughn’s EEOC charge and her SSDI application is “sufficient to warrant a reasonable juror's concluding that, assuming the truth of, or the plaintiff's good-faith belief in, the [SSDI application statement], the plaintiff could nonetheless [have] ‘perform[ed] the essential functions’ of her job, with or without ‘reasonable accommodation’” at the time she filed the EEOC charge. Cleveland, 526 U.S. at 807. The Seventh Circuit has recognized that “it is possible that the passage of time and a concomitant change in the disability could explain an inconsistency between SSDI and ADA status.” Feldman v. Am. Mem’l Life Ins. Co., 196 F.3d 783, 791 (7th Cir. 1999). In this case, that passage of time is quite short. Nonetheless, the Court believes that a reasonable jury could find that Vaughn’s medical condition deteriorated within that time to the point where she was incapable of performing any work, particular in light of the fact that she did not have any medication for her pain or diabetes. (Doc. No. 19 Ex. 1, Dep. of Delores Vaughn, at 101, 137.) Thus, there is a question of material fact as to whether Vaughn was a qualified individual with a disability at the time she filed her EEOC charge.
C. WHETHER VAUGHN’S DISABILITY COULD NOT REASONABLY BE ACCOMMODATED
According to the ADA, reasonable accommodation may include
(A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of
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qualified readers or interpreters, and other similar accommodations for individuals with disabilities. 42 U.S.C. § 12111(9). The Defendant argues that Vaughn’s disability could not reasonably be accommodated because 1) there is no evidence that there were any available F-2 Assembler positions in the Microwave Department; 2) Vaughn could not have been made a casual employee in the Microwave Department; 3) transferring her into the Microwave Department would have violated the collective bargaining agreement between Sharp and the union Vaughn was a member of; and 4) being able to stand is an essential function of an F-2 Assembler. (Doc. No. 16, Def.’s Mem. in Supp. Mot. Summ. J., at 20-19.) The EEOC counters that 1) Vaughn could perform the essential job functions of an F-2 Assembler, as long as she was accommodated by being allowed to sit on a stool; 2) Sharp failed to engage in the interactive process; 3) the Defendant has failed to show that Vaughn’s accommodation request was unreasonable or would impose an undue hardship; and 4) Sharp has not demonstrated that Vaughn could not be reasonably accommodated with a transfer out of Solar . The Court will address these arguments in turn. (Doc. No. 19, Pl.’s Mem. in Opp., at 11-17.) 1. Whether Vaughn Could Have Been Accommodated with a Transfer to a Vacant F-2
Position A reasonable accommodation under the ADA may include reassignment to a vacant position. Kleiber, 485 F.3d at 869 (citation omitted). Thus, “an employer has a duty under the ADA to consider transferring a disabled employee who can no longer perform [her] old job even with accommodation to a new position within the Company for which that employee is otherwise qualified.” Burns v. Coca-Cola Enter., 222 F.3d 247, 257 (6th Cir. 2000). However, “[e]mployers are not required to create new jobs, displace existing employees from their positions, or violate other
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employees' rights under a collective bargaining agreement or other non-discriminatory policy in order to accommodate a disabled individual.” Id. (citation omitted).
The Court finds that there is a material issue of fact as to whether there were any F-2 Assembler positions available when Vaughn requested a reassignment in May of 2004. In support of its argument that there were no vacant positions, Sharp submitted an affidavit by T.C. Jones, its Vice President of Human Resources and General Affairs, in which he confirms that “there were no job postings for grade F-2 Assemblers in the Microwave Oven Department nor were any new employees hired as grade F-2 Assemblers.” (Doc. No. 19 Ex.3, Aff. of T.C. Jones ¶ 3.) A list of vacant jobs between April 30, 2004 and July 6, 2004 also established that there were no job postings for F-2 Assemblers. (Doc. No. 19 Ex.3, Ex. 1 to Aff. of T.C. Jones.) Vaughn indicated, however, that she saw postings for both casuals and F-2 Assemblers on the B-line at the time she was terminated. (Doc. No. 19 Ex. 1, Dep. of Delores Vaughn, at 48-49.) Furthermore, the EEOC has attached a list of employees hired by Sharp in the months between May 3, 2004 and August 16, 2004. (Doc. No. 19 Ex. 8 to Dep. of Karin Tanaka.) Most of these hires were characterized as casuals, although a few were called assemblers. (See id.) Sharp’s Department Manager of Personnel, Karin Tanaka, attempted to explain this apparent contradiction by asserting that the assemblers were originally hired as casuals and were only later converted to assemblers. (Doc. No. 16 Ex. 9, Aff. of Karin Tanaka ¶ 4.) At this stage, however, the Court cannot weigh the evidence and determine whose interpretation of the document is more credible. Adams, 31 F.3d at 379 (“The judge may not make credibility determinations or weigh the evidence.”). Thus, it must deny Sharp’s
12

Case 2:06-cv-02611-JDB-dkv Document 33 Filed 02/01/2008 Page 13 of 16
motion for summary judgment on the basis that there were no vacant F-2 Assembler positions at the time Vaughn made her accommodation request.3
2. Whether Vaughn Could Have Been Accommodated with a Transfer to a Vacant Casual Position
Next, Sharp argues that Vaughn was not eligible to be transferred to a vacant casual position, because her disability would not permit her to perform some of the job assignments demanded of casual employees, rendering her not “otherwise qualified.” (Doc. No. 16, Def.’s Mem. in Supp. Mot. Summ. J., at 22.) Sharp cites a 1995 case wherein this court held that a prospective employee with spina bifida was not qualified to work as a casual at Sharp, even with the accommodation of a stool and wheeled cart, when he walked with the aid of crutches, could not stand for prolonged periods of time, or lift and carry significant weight. (EEOC v. Sharp Mfg. Co. of Am., No. 95-2405, Doc. No. 36 at 5-6.) In reaching this conclusion, the court examined the official job description for casuals, as well as the collective bargaining agreement, and found that casuals were often assigned “to the most difficult tasks as a temporary replacement for absent regular employees, in accordance with defendant’s collective bargaining agreement.” (Id. at 5.) The Plaintiff correctly points out that the 1995 case is factually distinguishable from this matter because the prospective employee not only had difficulty standing and walking, but could not lift either. (Doc. No. 19, Pl.’s Mem. in Opp., at 16.) However, the EEOC cannot deny that casuals are required to take any job assigned to them and that it is at best “likely” that a casual will be assigned a seated position. (See id.; Doc. No. 19
3 The Defendant argues that even if there had been a vacant F-2 Assembler position available in the Microwave Department, there is no guarantee that Vaughn would have gotten a seated position or would have been able to “bump” a casual from a seated job. (Doc. No. 16, Def.’s Mem. in Supp. Mot. Summ. J., at 22.) However, Vaughn’s testimony as to the abundance of seated positions in both the B and C-lines creates a material issue of fact. (See Doc. No. 19 Ex. 1, Dep. of Delores Vaughn, at 22, 28.)
13

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Ex. 1, Dep. of Delores Vaughn, at 51.) Thus, because the flexibility to take any available position, even a standing one, is an essential function of the job, the Court concludes that Vaughn was not “otherwise qualified” to be a casual. See 42 U.S.C. § 12111(8) (stating that a “qualified individual with a disability” must be able to perform the “essential functions of the employment position” with or without a reasonable accommodation); 29 C.F.R. § 1630.2(n)(2)(i) (“The job function may be considered essential . . . [when] the reason the position exists is to perform that function.”).
3. Whether Transferring Vaughn to a Vacant F-2 Assembler or Casual Position Would Have Violated the Collective Bargaining Agreement
Last, Sharp contends that allowing Vaughn to transfer to either a regular or casual position in the Microwave Department would have violated the collective bargaining agreement, which provides that an employee must have been at his or her current position for at least six months before being eligible to bid on another position. (Doc. No. 19 Ex. 9 to Dep. of T.C. Jones, Collective Bargaining Agreement Article ¶ 7.8.) When Vaughn requested to be transferred out of the Solar, she had been working there less than three months. The collective bargaining agreement further states, however, that even though employees who have been at their post for less than six months are not eligible to bid on vacant positions, they can be considered for such jobs if there are no eligible bidders. (Id. ¶ 7.9.) Sharp in fact had an obligation to consider these and other qualified employees “on layoff” before hiring “from outside.” (Id.) Because the Court has found that there is a material issue of fact as to whether Sharp was hiring new F-2 Assemblers when Vaughn made her accommodation request, the Court cannot properly hold that allowing Vaughn to transfer to the Microwave Department would have violated the collective bargaining agreement.
14

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4. Whether Standing is an Essential Job Function for F-2 Assemblers After an employee has established that he or she is disabled, but “otherwise qualified” for a position, either with or without a reasonable accommodation or with an allegedly “essential” job requirement eliminated, “the employer then bears the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that the proposed accommodation would impose an undue hardship.” Kiphart v. Saturn Corp., 251 F.3d 573, 581 (6th Cir. 2001) (citation omitted). Evidence of whether a particular function is essential includes, but is not limited to
(i) The employer's judgment as to which functions are essential; (ii) Written job descriptions prepared before advertising or interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs 29 C.F.R. § 1630.2(n)(3). The Defendant argues that standing is an essential job requirement because F-2 Assemblers must rotate into different positions as part of an ergonomic program instituted in the Microwave Department in 2003. (Doc. No. 16, Pl.’s Mem. in Supp. Mot. Summ. J., at 26.) Some of the positions employees are required to rotate into involve standing and some include sitting. (Id.) According to Daniel Wilburn, Sharp’s Department Manager for Safety and Environment, “[i]t is physically impossible to perform the job tasks associated with the standing positions in a sitting position.” (Doc. No. 16 Ex. 7, Aff. of Daniel Wilburn ¶ 4.) The Plaintiff rebuts this evidence with Vaughn’s own testimony that she worked as an F-2 Assembler in the B-line from 1995 until 2004 without standing. (Doc. No. 19 Ex. 1, Dep. of Delores Vaughn, at 18-23.) Furthermore, the EEOC has submitted the F-2 Assembler job description, which makes no mention of any such requirement. (Doc. No. 19 Ex. 2 to Dep. of T.C. Jones.) Last, T.C. Jones testified that the Defendant’s
15

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Ergonomic Program does not explicitly require that any of the positions be performed standing. (Doc. No. 19 Ex. 5, Dep. of T.C. Jones, at 45.) Jones also admitted that Class A and Class B, two of the positions described by the Program, can be performed in a seated position and that employees need only rotate every four hours, or once during an eight-hour shift. (Id. at 41.) Thus, if Vaughn rotated back and forth between Classes A and B, she could perform an entire day’s work seated. In light of this evidence, the Court finds that the Defendant has not established that standing is an essential job function.4
CONCLUSION For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the Defendant’s motion for summary judgment. (Doc. No. 16.) Specifically, it finds that the Plaintiff has raised an issue of material fact as to whether Vaughn is a disabled individual who is otherwise qualified, either with or without a reasonable accommodation or with an allegedly “essential” job requirement eliminated. The Court grants the Defendant’s motion for summary judgment to the extent that Sharp argues 1) that no ADA claim is permitted on the basis that Vaughn was substantially limited in her ability to walk and 2) that Vaughn was not otherwise qualified to be a casual employee. IT IS SO ORDERED this 1st day of February, 2008.
s/ J. DANIEL BREEN UNITED STATES DISTRICT JUDGE
4 The EEOC also argues that the Defendant failed to engage in the interactive process. (Doc. No. 19, Pl.’s Mem. in Opp., at 12-13.) However, this contention does not respond to any argument made by Sharp in its motion for summary judgment and the EEOC itself has not moved for summary judgment on this or any other issue. Thus, the Court will not address this question in its current Order.
16

 Case 2:06-cv-02611-STA-dkv Document 48 Filed 01/22/09 Page 1 of 8 PageID 719

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION ______________________________________________________________________

EQUAL EMPLOYMENT OPPORTUNITY

)

COMMISSION,

)

)

PLAINTIFF,

)

)

v.

)

No. 2:06-cv-02611-STA-dkv

)

SHARP MANUFACTURING COMPANY

)

OF AMERICA, A DIVISION OF

)

SHARP ELECTRONICS CORPORATION, )

)

DEFENDANT.

)

______________________________________________________________________

CONSENT DECREE ______________________________________________________________________

INTRODUCTION

For purposes of settlement and compromise only, the parties have advised the

Court that they wish to resolve the instant controversy without the expense, delay, and

burden of further litigation.

This action was instituted by Plaintiff Equal Employment Opportunity Commission

(“the Commission”) under Title I of the Americans with Disabilities Act of 1990 (“the

ADA”) and Title I of the Civil Rights Act of 1991, to correct alleged unlawful employment

practices on the basis of disability and to make whole the Charging Party, Delores

Vaughn. The Commission alleged that the Defendant failed to provide Ms. Vaughn with

a reasonable accommodation and discharged her because of her disability,

osteoarthritis.

Defendant has consistently denied and continues to deny that it engaged in any

unlawful employment practices as alleged by the Commission or that it otherwise

Case 2:06-cv-02611-STA-dkv Document 48 Filed 01/22/09 Page 2 of 8 PageID 720
violated the ADA. Defendant maintains that the actions of its officials were proper and lawful in all regards.
This Consent Decree, being entered with the consent of the parties for purposes of settlement, shall not constitute an adjudication on the merits of this lawsuit and shall not be construed as an admission by Defendant of any violation of the Americans with Disabilities Act or any executive order, law, rule or regulation dealing with or in connection with discrimination in employment.
This Consent Decree constitutes the complete and exclusive agreement between the parties. No waiver, modification, or amendment of any provision of this Decree shall be effective unless made in writing. No representations or inducements to compromise this action have been made other than those recited or referenced in this Decree. In the event this proposed Consent Decree is not approved or does not become final, it shall not be admissible in evidence in any subsequent proceeding in this action.
The Court has reviewed the terms of the proposed Consent Decree in light of the applicable laws and regulations, the statements and representations of counsel for all parties, and hereby approves the Consent Decree.
It is hereby ORDERED, ADJUDGED AND DECREED: I. JURISDICTION
The United States District Court for the Western District of Tennessee, Western Division, has jurisdiction over the parties and subject matter of this litigation.
II. GENERAL PROVISIONS This Consent Decree, being entered with the consent of the parties for purposes of settlement, shall not constitute an adjudication on the merits of this lawsuit and shall
2

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not be considered as an admission by Defendant of any violation of the ADA or any executive order, law, rule or regulation dealing with or in connection with discrimination in employment.
III. SCOPE AND DURATION OF DECREE A. This Consent Decree resolves all issues and claims that were alleged or could have been alleged in the Commission’s Complaint in this cause or Charge of Discrimination No. 250-2004-03132 filed by Delores Vaughn with the Commission. This Consent Decree shall not be considered to be dispositive of any charge or issue now pending before any office of the Commission other than Charge of Discrimination No. 250-2004-03132. B. The provisions of this Consent Decree shall continue to be effective and binding upon the parties to this action for one (1) year.
IV. NON-DISCRIMINATION AND NON-RETALIATION PROVISONS A. Defendant shall not engage in any employment practice which has the purpose or effect of discriminating against any individual on the basis of their disability as prohibited by the Americans with Disabilities Act of 1990. B. Defendant shall not take any retaliatory action or measure against any employee, former employee or applicant for opposing practices made unlawful under the Americans with Disabilities Act of 1990 or for making a charge or complaint to the Commission, testifying, assisting or participating in any manner in any investigation, proceeding or hearing under Americans with Disabilities Act of 1990.
3

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V. AMERICANS WITH DISABILITIES ACT POLICIES RELATING TO REASONABLE ACCOMMODATIONS Defendant will revise its policies, procedures and protocols related to the provision of reasonable accommodations to employees within sixty (60) days of the entry of the Consent Decree by the Clerk of the Court. The revised policies shall include a written procedure for requesting a reasonable accommodation and engaging in the interactive process. It shall also include the name of the contact person who will be responsible for commencing the reasonable accommodation process when an employee requests an accommodation. Upon completion of the revised policy relating to reasonable accommodations, Defendant shall distribute the policy within thirty (30) days of its adoption to all current employees then assigned and working for Defendant; distribute the policy to all new employees of Defendant upon the employee’s hire; and Defendant shall submit a copy of the revised policy to the Commission to the attention of Deidre Smith, Supervisory Trial Attorney.
VI. NOTICE POSTING It is the practice of the Commission to require, as part of a Consent Decree resolving cases under the ADA, the posting of a notice at an employer’s facility for an extended period of time containing the terms of the settlement. As such, Defendant shall conspicuously post at its Memphis, Tennessee, facility the notice (posters) required to be posted pursuant to the Americans with Disabilities Act of 1990. Furthermore, Defendant shall conspicuously post the notice attached to this Decree as Appendix A at its Memphis, Tennessee facility for six (6) months commencing within ten days after entry of this Decree by the Court. Defendant shall confirm in writing to the
4

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Commission within 30 days of the entry of the Decree that the Notice has been posted by the deadline and specifically where it has been posted.
VII. INDIVIDUAL RELIEF Defendant shall pay Delores Vaughn $30,000.00 as compensatory damages, and Defendant will issue a 1099. Delores Vaughn, as a part of the settlement has opted to receive disability payments. For this purpose, the date of disability is established as July 1, 2004. Through January 1, 2009, Vaughn has missed 55 payments at her rate of $178.80, totaling $9,655.20, for which she will receive a check. Disability payments will end at retirement age, and normal pension payments of $178.80 will begin at that time unless she does not have a spouse or elects no survivorship option for her spouse if she has one. Within 20 days after entry of the Decree, Defendant shall mail a check payable to Delores Vaughn for this amount to the following address: Delores Vaughn 741 Adams Ave. Apt. 805 Memphis, TN 38105 A copy of the check shall be sent to Deidre Smith, Supervisory Trial Attorney, 1407 Union, Suite 901, Memphis, Tennessee 38104.
VIII. REPORTING A. Defendant will submit two reports to the Commission. The first report will be submitted 6 months after the entry of the Decree and will describe any complaints of alleged failure to provide a reasonable accommodation to employees during the time following the entry of the Decree. The report shall include the name of the complainant, the name of the alleged discriminator, a summary of the complaint, the results of any
5

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investigation of the complaint, any action taken by Defendant in response to each complaint, and how each complaint was resolved.
B. The second report will be submitted 12 months after the entry of the Decree and will provide the same information described in paragraph A above for the period from when the first report was submitted through the date the second report is submitted.
C. Each report will be submitted to Supervisory Trial Attorney, Deidre Smith, at the address on the signature page of this Decree.
IX. COSTS Each of the parties shall bear its own costs, including attorneys’ fees. IT IS SO ORDERED THIS 22nd DAY OF January, 2009.
s/ S. Thomas Anderson S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE
6

Case 2:06-cv-02611-STA-dkv Document 48 Filed 01/22/09 Page 7 of 8 PageID 725

FOR DEFENDANT:
s/Joseph M. Crout JOSEPH M. CROUT TN BAR NO. 12957
s/Charles W. Cavagnaro, Jr. CHARLES W. CAVAGNARO, JR. TN BAR NO. 17917 EVANS PETREE BOGATIN, PC 1661 International Place Drive, Suite 300 Memphis, Tennessee 38120 (901) 767-1234

FOR THE COMMISSION:
RONALD S. COOPER General Counsel
JAMES L. LEE Deputy General Counsel
GWENDOLYN YOUNG REAMS Associate General Counsel
s/Faye A. Williams FAYE A. WILLIAMS Regional Attorney TN BAR NO. 11730 1407 Union Ave., Suite 901 Memphis, TN 38104
(901) 544-0088

s/Deidre Smith DEIDRE SMITH Supervisory Trial Attorney TN BAR NO. 018499 1407 Union Ave., Ste. 901 Memphis, TN 38104
(901) 544-0140

s/Steven W. Dills STEVEN W. DILLS Senior Trial Attorney TN BAR NO. 11970 1407 Union Ave., Ste. 901 Memphis, TN 38104
(901) 544-0136

7

Case 2:06-cv-02611-STA-dkv Document 48 Filed 01/22/09 Page 8 of 8 PageID 726
NOTICE
1. This Notice to all employees of Sharp Manufacturing Company of America is being posted as part of the remedy agreed to between Sharp Manufacturing Company of America and the Equal Employment Opportunity Commission in settlement of a complaint of employment discrimination filed by a former employee.
2. Federal law (the Americans with Disabilities Act) prohibits discrimination against any employee because of the employee’s physical or mental disability.
3. Sharp Manufacturing Company of America supports such Federal law in all respects. Sharp Manufacturing Company shall not take any action against employees because they have exercised their rights under Federal law by filing charges with the Equal Employment Opportunity Commission and/or testifying, assisting or participating in any manner in any investigation, proceeding or hearing under the Americans with Disabilities Act.
4. Defendant has consistently denied and continues to deny that it engaged in any violation of Federal law or that it otherwise violated the Americans with Disabilities Act. The posting of this Notice by Sharp Manufacturing Company of America does not constitute an admission by Sharp Manufacturing Company of America of any violation of Federal law.
5. This Notice shall be posted by Sharp Manufacturing Company of America for six (6) months.
SIGNED this ____day of __________, 2009.
Sharp Manufacturing Company of America
8

 Case: 2:06-cv-2611 As of: 06/08/2017 03:25 PM CDT 1 of 6
U.S. District Court Western District of Tennessee (Memphis) CIVIL DOCKET FOR CASE #: 2:06−cv−02611−STA−dkv

CLOSED

Equal Employment Opportunity Commission v. Sharp Manufacturing Company of America Assigned to: Judge S. Thomas Anderson Referred to: Chief Magistrate Judge Diane K. Vescovo Cause: 42:2000e Job Discrimination (Employment)
Plaintiff

Date Filed: 09/19/2006 Date Terminated: 01/22/2009 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: U.S. Government Plaintiff

Equal Employment Opportunity Commission

represented by Deidre Smith BREWER & BARLOW PLC 1755 Kirby Parkway Suite 110 Memphis, TN 38120 901−757−3360 Fax: 901−757−3361 Email: deidre@brewerbarlow.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Faye A. Williams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION− Memphis 1407 Union Avenue Ste. 901 Memphis, TN 38104 901−544−0088 Email: faye.williams@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gwendolyn Young Reams EQUAL EMPLOYMENT OPPORTUNITY COMMISSION− Memphis 1407 Union Avenue Ste. 901 Memphis, TN 38104 901−544−0136 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Lee EQUAL EMPLOYMENT OPPORTUNITY COMMISSION− Memphis 1407 Union Avenue Ste. 901 Memphis, TN 38104 901−544−0136 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ronald S. Cooper EQUAL EMPLOYMENT OPPORTUNITY COMMISSION− Memphis 1407 Union Avenue Ste. 901

Case: 2:06-cv-2611 As of: 06/08/2017 03:25 PM CDT 2 of 6
Memphis, TN 38104 901−544−0133 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Terry L. Beck EQUAL EMPLOYMENT OPPORTUNITY COMMISSION− Memphis 1407 Union Avenue Ste. 901 Memphis, TN 38104 901−544−0138 Fax: 901−544−0111 TERMINATED: 01/10/2008 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven W. Dills EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1407 Union Avenue Suite 901 Memphis, TN 38104 901−544−0107 Fax: 901−544−0107 Email: steven.dills@eeoc.gov ATTORNEY TO BE NOTICED

V.
Defendant
Sharp Manufacturing Company of America a division of Sharp Electronics Corporation

represented by Joseph M. Crout EQUAL EMPLOYMENT OPPORTUNITY COMMISSION− Memphis 1407 Union Avenue Ste. 901 Memphis, TN 38104 901−544−0136 Fax: 901−544−0111 Email: joseph.crout@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Kerby Bowling , II EVANS PETREE, PC 1000 Ridgeway Loop Road Ste. 200 Memphis, TN 38120 901−767−1234 Fax: 901−767−2803 Email: kbowling@evanspetree.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Charles W. Cavagnaro , Jr. EVANS PETREE, PC 1000 Ridgeway Loop Road Ste. 200 Memphis, TN 38120 901−474−6142 Fax: 901−374−7569 Email: ccavagnaro@evanspetree.com

Case: 2:06-cv-2611 As of: 06/08/2017 03:25 PM CDT 3 of 6 ATTORNEY TO BE NOTICED

Date Filed 09/19/2006 10/06/2006 10/11/2006
10/23/2006
10/24/2006
04/11/2007
04/12/2007 04/12/2007 06/18/2007 06/18/2007 07/17/2007 07/17/2007 07/27/2007 07/31/2007
10/25/2007

# Docket Text
1 COMPLAINT against Sharp Manufacturing Company of America , filed by Equal Employment Opportunity Commission. (Attachments: # 1 Civil Cover Sheet)(cas) (Entered: 09/19/2006)
2 ANSWER to Complaint by Sharp Manufacturing Company of America.(Cavagnaro, Charles) (Entered: 10/06/2006)
3 SETTING LETTER: Scheduling Conference set for 10/26/2006 09:30 AM in Courtroom 5 − Memphis before Diane K. Vescovo. Please email the proposed joint scheduling order to ECF_Judge_Vescovo@tnwd.uscourts.gov by Monday, October 23, 2006. If the order is approved and filed, the conference will be canceled.Please see Judge Vescovo's Rule 16(b) instructions at www.tnwd.uscourts.gov under Instructions, Procedures and Attachments to Notices.(crv) (Entered: 10/11/2006)
4 SCHEDULING ORDER: (Plaintiff) Join Parties and/or Amended Pleadings due by 12/29/2006. Discovery due by 6/29/2007. (Defendant) Join Parties and/or Amend Pleadings due by 1/31/2007. Motions due by 7/31/2007.. Signed by Judge Diane K. Vescovo on 10/23/06. (bag, ) (Entered: 10/23/2006)
5 SETTING LETTER: Jury Trial set for 11/5/2007 09:30 AM in Courtroom 1 − Memphis before J. Daniel Breen. Pretrial Conference set for 10/30/2007 09:00 AM in Courtroom 1 − Memphis before J. Daniel Breen. Proposed Joint Pretrial Order due 10/23/2007.(tpe, ) (Entered: 10/24/2006)
6 MOTION Modify Scheduing Order re 4 Scheduling Order, Proposed Order submitted by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support of Motion to Modify Scheduling Order# 2 Certificate of Consultation)(Smith, Deidre) (Entered: 04/11/2007)
7 ORDER granting 6 Motion to Modify Scheduling Order . Signed by Magistrate Judge Diane K. Vescovo on 4/12/07. (Vescovo, Diane) (Entered: 04/12/2007)
Set/Reset Scheduling Order Deadlines: Discovery ddl by 7/31/2007. Dispositive Motions ddl by 8/31/2007. (ehg, ) (Entered: 04/13/2007)
8 NOTICE to Take Deposition of Arsen H. Manugian, M.D. by Sharp Manufacturing Company of America.(Cavagnaro, Charles) (Entered: 06/18/2007)
9 NOTICE to Take Deposition of W. Lee Moffatt, M.D. by Sharp Manufacturing Company of America.(Cavagnaro, Charles) (Entered: 06/18/2007)
10 MOTION for Protective Order by Sharp Manufacturing Company of America. (Cavagnaro, Charles) (Entered: 07/17/2007)
11 AGREED PROTECTIVE ORDER. Signed by Judge J. Daniel Breen on 7/17/07. (Breen, J.) (Entered: 07/17/2007)
12 MOTION for Extension of Time to Complete Discovery and Continue Trial Date proposed order submitted by Sharp Manufacturing Company of America. (Cavagnaro, Charles) (Entered: 07/27/2007)
13 ORDER, Motions terminated: 12 MOTION for Extension of Time to Complete Discovery and Continue Trial Date proposed order submitted filed by Sharp Manufacturing Company of America. Jury Trial re−set for 2/19/2008 09:30 AM in Courtroom 1 − Memphis before Judge J. Daniel Breen. Pretrial Conference re−set for 2/12/2008 09:00 AM in Courtroom 1 − Memphis before Judge J. Daniel Breen. Proposed Joint Pretrial Order due 2/5/2008. Signed by Judge J. Daniel Breen on 7/31/07. (tpe, ) (Entered: 07/31/2007)
14 MOTION for Leave to File Excess Pages proposed order submitted by Sharp Manufacturing Company of America. (Attachments: # 1 Memorandum in Support of Defendant's Motion for Leave to File Excess Pages# 2 Certificate of Consultation)(Cavagnaro, Charles) (Entered: 10/25/2007)

Case: 2:06-cv-2611 As of: 06/08/2017 03:25 PM CDT 4 of 6

10/29/2007 10/31/2007
11/20/2007 11/21/2007 12/07/2007
12/21/2007 12/21/2007 12/26/2007 12/27/2007

15 ORDER Granting 14 Unopposed Motion for Leave to File Excess Pages. Signed by Judge J. Daniel Breen on 10/29/07. (Breen, J.) (Entered: 10/29/2007)
16 MOTION for Summary Judgment by Sharp Manufacturing Company of America. (Attachments: # 1 Memorandum in Support of Defendant's Motion for Summary Judgment# 2 Exhibit 1 − Deposition Excerpts of Delores Vaughn# 3 Exhibit 2 − Deposition Excerpts of Daniel Wilburn# 4 Exhibit 3 − Affidavit of T.C. Jones, Jr.# 5 Exhibit 4 − Plaintiff's Response to Defendant's First Set of Interrogatories# 6 Exhibit 5 − Deposition Excerpts of W. Lee Moffatt, M.D.# 7 Exhibit 6 − Deposition Excerpts of Arsen H. Manugian, M.D.# 8 Exhibit 7 − Affidavit of Daniel Wilburn# 9 Exhibit 8 − Deposition Excerpts of Karin Tanaka# 10 Exhibit 9 − Affidavit of Karin Tanaka# 11 Exhibit 10 − Deposition Excerpts of T.C. Jones, Jr.# 12 Johnson v. St. Clare Hosp. 1998 WL 236235# 13 Inaviuc v. Hauer 1998 WL 57077# 14 Fields v. St. Bernard 11 AD Cases 1845# 15 EEOC v. Sharp Docket No. 95−2405)(Cavagnaro, Charles) (Entered: 10/31/2007)
17 MOTION for Extension of Time to File Response/Reply as to 16 MOTION for Summary Judgment (proposed order submitted), MOTION for Leave to File Excess Pages (proposed order submitted) by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support of Unopposed Motion for Extension of Time to Respond to Defendant's Motion for Summary Judgment and for Enlargement of the Page Limitation# 2 Certificate of Consultation)(Smith, Deidre) (Entered: 11/20/2007)
18 ORDER Granting 17 Plaintiff's Unopposed Motion for Extension of Time to Respond re 16 MOTION for Summary Judgment and Granting 17 Motion for Enlargement of the Page Limitation; Responses due by 12/7/2007. Signed by Judge J. Daniel Breen on 11/21/07. (Breen, J.) (Entered: 11/21/2007)
19 RESPONSE in Opposition re 16 MOTION for Summary Judgment filed by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support of Response to MSJ# 2 Exhibit No. 1 − Vaughn depo excerpts# 3 Exhibit No. 2 − Sullivan Depo excerpts# 4 Exhibit No. 3 − Rice depo excerpts# 5 Exhibit No. 4 − Tanaka depo excerpts# 6 Errata No. 5 − Jones depo excerpts# 7 Exhibit No. 6− Letter from Dr. Wright# 8 Exhibit No. 7 − Moffatt depo excerpts# 9 Exhibit No. 8 − Manugian depo excerpts# 10 Exhibit No. 9 − Vaughn Separation Notice# 11 Exhibit No. 10 − Declaration of Dr. Hicks# 12 Exhibit No. 11 − Sullivan EEOC Affidavit# 13 Exhibit No. 12 − Wilburn depo excerpts# 14 Exhibit No. 13 − Chalmers EEOC Affidavit# 15 Exhibit No. 14 − Employment List, page 1# 16 Exhibit No.15 − Charge of Discrimination# 17 Exhibit No. 16 − Rice EEOC Affidavit# 18 Exhibit Vaughn Performance Evaluation, Exh. 13 to Vaughn depo# 19 Exhibit Leave Request Form, Exh. 2 to Vaughn depo# 20 Exhibit Article 34.5 of CBA, Exh. 10 to Jones depo# 21 Exhibit Notes from Dr. Moffatt, Exh. 3 and 4 to Moffatt depo# 22 Exhibit Job Description Assembler F 2, Exh. 7 to Jones Depo# 23 Exhibit Job Description, Exh. 2 to Wilburn Depo# 24 Exhibit Ergonomic Policy, Exh. 2 to Jones Depo# 25 Exhibit Article 30.5 of the CBA, Exh. 6 to Jones Depo# 26 Exhibit Employee List of Hires, Exh. 8 to Tanaka Depo# 27 Exhibit Article 7.8 of the CBA, Exh. 9 to Jones# 28 Exhibit Unreported Case − Adams v. TRW Automotive# 29 Exhibit Appl. for SS Disability, Exh. 6 to Vaughn Depo# 30 Exhibit Unreported Case − Pipkin v. M−I, LLC# 31 Exhibit Stafne v. Unicare Homes, Inc.# 32 Exhibit Unreported Case − Stephenson v. United Airlines# 33 Exhibit EEOC's Response to Defendant's Interrogatories# 34 Response to Defendant's Statement of Undisputed Facts)(Smith, Deidre) (Entered: 12/07/2007)
20 MOTION to Strike proposed order submitted by Sharp Manufacturing Company of America. (Attachments: # 1 Memorandum in Support of Defendant's Motion to Strike)(Cavagnaro, Charles) (Entered: 12/21/2007)
21 MOTION for Leave to File Reply Brief and Memorandum in Support proposed order submitted by Sharp Manufacturing Company of America. (Attachments: # 1 Exhibit A − proposed Reply Brief)(Cavagnaro, Charles) (Entered: 12/21/2007)
22 ORDER Granting 21 Defendant's Motion for Leave to File Reply. Signed by Judge J. Daniel Breen on 12/26/07. (Breen, J.) (Entered: 12/26/2007)
23 REPLY to Response to Motion re 16 MOTION for Summary Judgment filed by Sharp Manufacturing Company of America. (Attachments: # 1 Exhibit B − Deposition of

Case: 2:06-cv-2611 As of: 06/08/2017 03:25 PM CDT 5 of 6

01/07/2008
01/07/2008 01/09/2008 01/10/2008 01/22/2008 01/22/2008 01/22/2008 01/23/2008 01/31/2008 02/01/2008 02/05/2008
02/05/2008
02/05/2008 02/05/2008
02/05/2008 02/05/2008

Nicole Sullivan)(Cavagnaro, Charles) (Entered: 12/27/2007)
24 RESPONSE in Opposition re 20 MOTION to Strike proposed order submitted filed by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support of Response in Opposition of Motion to Strke, # 2 Exhibit No. 1 − Declaration of Investigator Timothy Williams, # 3 Exhibit (Collective) No. 2 − Unreported Case #1, # 4 Exhibit (Collective) No. 2 − Unreported Case #2)(Smith, Deidre) (Entered: 01/07/2008)
25 ATTACHMENT Exhibit No. 3 − Affidavit and Certificate (inadvertently omitted from previous filing) to 24 Response in Opposition to Motion, by Equal Employment Opportunity Commission. (Smith, Deidre) (Entered: 01/07/2008)
26 MOTION to Withdraw as Attorney (Proposed Order Submitted) by Equal Employment Opportunity Commission. (Smith, Deidre) (Entered: 01/09/2008)
27 ORDER Granting 26 Plaintiff's Motion to Withdraw Counsel. Attorney Terry L. Beck terminated. Signed by Judge J. Daniel Breen on 1/10/08. (Breen, J.) (Entered: 01/10/2008)
28 NOTICE by Equal Employment Opportunity Commission Plaintiff's PreTria Disclosures Pursuant to Fed.R.Civ.P. 26(a)(3)(C) (Smith, Deidre) (Entered: 01/22/2008)
29 ORDER granting 20 Motion to Strike. Signed by Judge J. Daniel Breen on 1/22/2008. (Breen, J.) (Entered: 01/22/2008)
30 NOTICE by Sharp Manufacturing Company of America of Rule 26(a)(3)(A) Pre−Trial Disclosures (Cavagnaro, Charles) (Entered: 01/22/2008)
31 NOTICE of Appearance by Steven W. Dills on behalf of Equal Employment Opportunity Commission (Dills, Steven) (Entered: 01/23/2008)
32 RE−SETTING LETTER: Pretrial Conference re−set for 2/11/2008 09:30 AM in Courtroom 1 − Memphis before Judge J. Daniel Breen. (tpe, ) (Entered: 01/31/2008)
33 ORDER granting in part and denying in part 16 Motion for Summary Judgment. Signed by Judge J. Daniel Breen on 2/1/2008. (Breen, J.) (Entered: 02/01/2008)
34 MOTION in Limine to Exclude Disciplinary Actions (Proposed Order submitted) by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support, # 2 Exhibit No. 1− Vaughn depo excerpts, # 3 Exhibit No. 2 − Separation Notice, # 4 Exhibit No. 3 − Collective Exhibit, # 5 Exhibit No. 4 − Jones depo excerpts, # 6 Exhibit No. 5 − Unreported Case)(Smith, Deidre) (Entered: 02/05/2008)
35 MOTION in Limine to Exclude Testimony of Green and Leoncavallo (Proposed Order submitted) by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support, # 2 Exhibit No.1 − Vaughn depo excerpts, # 3 Exhibit No. 2 − Separation Notice, # 4 Exhibit No. 3 − Jones depo excerpts, # 5 Exhibit No. 4 − Def's Rule 26a1 Disclosures, # 6 Exhibit No. 5 − Doctor's Notes)(Smith, Deidre) (Entered: 02/05/2008)
36 MOTION in Limine to Exclude Previous Case (Proposed Order submitted) by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support, # 2 Exhibit No. 1)(Smith, Deidre) (Entered: 02/05/2008)
37 MOTION in Limine to Exclude Evidence Related to SSA Records (Proposed Order submitted) by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support, # 2 Exhibit No. 1 − Collective Exhibit, # 3 Exhibit No. 2 − Separation Notice, # 4 Exhibit No. 3 − Vaughn depo excerpts)(Smith, Deidre) (Entered: 02/05/2008)
38 MOTION in Limine to Exclude Evidence Related to Decision of TN Dept of Workforce (Proposed Order submitted) by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support)(Smith, Deidre) (Entered: 02/05/2008)
39 MOTION in Limine to Exclude Testimony of Paul Shaffer (Proposed Order submitted) by Equal Employment Opportunity Commission. (Attachments: # 1 Memorandum in Support)(Smith, Deidre) (Entered: 02/05/2008)

Case: 2:06-cv-2611 As of: 06/08/2017 03:25 PM CDT 6 of 6

02/07/2008 02/11/2008 05/21/2008 07/23/2008 09/02/2008 09/23/2008
10/14/2008
11/25/2008 01/22/2009 01/23/2009

40 Joint MOTION to Continue Trial Date proposed orde submitted by Sharp Manufacturing Company of America. (Attachments: # 1 Affidavit of Reginald Yurchik)(Cavagnaro, Charles) (Entered: 02/07/2008)
41 ORDER Granting 40 Joint Motion to Continue Trial Date. Signed by Judge J. Daniel Breen on 2/11/08. (Breen, J.) (Entered: 02/11/2008)
42 ORDER REASSIGNING CASE. Case reassigned to Judge S. Thomas Anderson for all further proceedings. Judge J. Daniel Breen no longer assigned to case. Signed by Judge J. Daniel Breen on 5/21/08. (jae, ) (Entered: 05/22/2008)
43 SETTING LETTER: Status Conference set for 9/22/2008 01:30 PM in Courtroom 4 − Memphis before Judge S. Thomas Anderson. (tlh) (Entered: 07/23/2008)
44 SETTING LETTER: Status Conference RESET for 9/23/2008 10:00 AM in Courtroom 4 − Memphis before Judge S. Thomas Anderson. (tlh) (Entered: 09/02/2008)
45 Minute Entry for proceedings held before Judge S. Thomas Anderson: Status Conference held on 9/23/2008; Parties provided Court with history and status of case; Mediation held − case did not settle; Parties to meet with mediator again; Parties open to Judicial Mediation; Matter set for trial: Motions due by 11/21/2008; Pretrial Order due by 2/2/2009; Pretrial Conference set for 2/9/2009 01:30 PM in Courtroom 4 − Memphis before Judge S. Thomas Anderson; Jury Trial set for 2/23/2009 09:30 AM in Courtroom 4 − Memphis before Judge S. Thomas Anderson. (Plf Atty: D. Smith; Dft Attys: J. Crout, K. Bowling,III) (Court Reporter Mark Dodson.)(10:07−10:17) (tlh) (Entered: 09/23/2008)
46 ORDER REFERRING MOTION: 39 MOTION in Limine to Exclude Testimony of Paul Shaffer (Proposed Order submitted) filed by Equal Employment Opportunity Commission, 37 MOTION in Limine to Exclude Evidence Related to SSA Records (Proposed Order submitted) filed by Equal Employment Opportunity Commission, 38 MOTION in Limine to Exclude Evidence Related to Decision of TN Dept of Workforce (Proposed Order submitted) filed by Equal Employment Opportunity Commission, 35 MOTION in Limine to Exclude Testimony of Green and Leoncavallo (Proposed Order submitted) filed by Equal Employment Opportunity Commission, 34 MOTION in Limine to Exclude Disciplinary Actions (Proposed Order submitted) filed by Equal Employment Opportunity Commission, 36 MOTION in Limine to Exclude Previous Case (Proposed Order submitted) filed by Equal Employment Opportunity Commission. Signed by Judge S. Thomas Anderson on 10/14/08. (Anderson, S.) (Entered: 10/14/2008)
47 NOTICE of Settlement by Sharp Manufacturing Company of America (Crout, Joseph) (Entered: 11/25/2008)
48 CONSENT DECREE DISMISSING CASE. Signed by Judge S. Thomas Anderson on 1/22/09. (Anderson, S.) (Entered: 01/22/2009)
49 JUDGMENT In accordance with the Consent Decree entered on 1/22/2009, this cause is hereby dismissed. Signed by Judge S. Thomas Anderson on 1/23/2009. (Anderson, S.) (Entered: 01/23/2009)


The EEOC sued a manufacturing company in Tennessee on behalf of a former employee who was allegedly fired because of her physically limiting osteoarthritis. The parties settled and the defendant was enjoined from discrimination under Title VII (W.D. Tenn.).