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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND DARNELL HART, ) ) Plaintiff, ) ) v. ) ) GIANT FOOD INC., et al., ) ) Defendants. ) ____________________________________)

Civil No. JFM-00-3466

MEMORANDUM Plaintiff Darnell Hart ("Hart") has brought this action under federal law against Defendant Giant Food, Inc. ("Giant") for employment discrimination. He asserts claims for race discrimination, religious discrimination, and disability discrimination. He also asserts claims under state law for breach of contract and wrongful discharge. Discovery has been completed, and Giant has moved for summary judgment. The motion will be granted. I. Hart, an African American, was employed by Defendant Giant for 17 years. Hart worked as a grocery clerk from 1992 to 1996. As a grocery clerk, one of Hart's main responsibilities was to stock cases of groceries on the shelves. From 1992 through 1996, Hart was formally disciplined five times by Giant. In 1994, Hart suffered a back injury. As a result, Hart was put on a medical restriction by his doctor, Martin Kanner. Giant accommodated his restriction by putting him on light duty and assigning

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him the lightest cases to stack. In August of 1996, Dr. Kanner changed Hart's restriction by increasing the amount he could lift to 75 pounds, the amount he could push/pull to 200 pounds, and the amount of time he could stand without a break to three hours. Giant took Hart off light duty but continued to accommodate his Doctor's restriction by assigning him cases less than 75 pounds. Hart fell well short of Giant's production standard for stocking shelves. Giant expected grocery clerks to stock between 34 and 36 cases per hour. During October and November of 1996, Hart routinely failed to stock above 100 cases during an entire eight hour shift. Hart was given verbal and written warnings concerning his poor work performance. In late October, at Giant's request, Dr. Kanner confirmed that Hart's medical restriction was appropriate. On November 1, Hart was suspended for poor job performance. After returning from his suspension, Hart's performance did not improve. Hart stated that 25 to 30 pounds was the most he could lift despite his Doctor's statement that he could lift up to 75 pounds. On November 9th, Hart was terminated for poor job performance. Hart filed a charge against Giant with the Equal Employment Opportunity Commission ("EEOC"). In March 1997, the parties reached a Negotiated Settlement Agreement ("Agreement"). Under the agreement, Giant was to reinstate Hart with a 75 pound lifting restriction. Immediately after the Agreement was reached, Hart submitted a new restriction from his doctor. This restriction limited Hart to lifting 40 pounds. Because Hart was unable to fulfill the Agreement, Giant refused to rehire Hart. In addition, Hart requested that he not be assigned work on Saturday night or Sunday morning so he could honor his Sabbath. Giant respected this request until 1992. Hart alleges that on several occasions in 1992 and 1993, Giant refused to honor his request and scheduled him for work on 2

Saturday night. II. Hart alleges that he injured his back and that Giant refused to reasonably accommodate him. To establish a prima facie case of discrimination under the ADA, Hart must show that (1) he has a disability; (2) he is otherwise qualified for the job; and (3) his disability played a motivating role in the employment decision. See, e.g., Baird v. Rose, 192 F.3d 462, 467 (4th Cir. 1999). Hart has not established the second of these elements, which is that he was otherwise qualified for the job.1 Hart is otherwise qualified if, "with or without reasonable accommodation [he] can perform the essential functions" of his job. Cleveland v. Policy Management System Corp., 526 U.S. 796, 806 (1999). One of the essential functions of the grocery clerk position is to stock shelves. Hart fell well short of Giant's production standard for stocking shelves. Giant expected grocery clerks to stock between 34 and 36 cases per hour. During October and November of 1996, Hart routinely failed to stock above 100 cases during an entire eight hour shift. Hart's doctor, Dr. Kanner, restricted Hart's ability to work by requiring him to not lift more than 75 pounds, not push or pull more than 200 pounds, and to take a break after standing for more than three hours. Giant accommodated these restrictions. On October 16th, Hart claimed that, despite the accommodations, his back injury was still preventing him from completing the work. On October 31st, Dr. Kanner wrote a letter to Giant stating that Hart's current restrictions were satisfactory. Giant's accommodations were reasonable, and Hart has not presented any evidence concerning other

Giant argues that he has not established the first and third elements as well. I need not consider these arguments. 3

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possible accommodations. Hart was unable to stock shelves, an essential job function, within Giant's performance standard. Hart was unable to perform despite Giant's reasonable accommodations. Whether, despite reasonable accommodations, Hart was unable to perform because of his back injury or some other reason is irrelevant. See Martinson v. Kinney Shoe Corp., 104 F.3d 683, d686-689 (4th Cir. 1997). In Martinson, a shoe salesman was fired because seizures caused by his epilepsy left him unable to perform an essential job function. The court held that he was legally fired even though his disability directly caused his inability to perform. Id. (reasonable accommodations were not possible). Martinson governs here, and it is fatal to Hart's ADA claim. III. To establish a prima facie case for disparate treatment under Title VII, Hart must show: (1) he is a member of a protected class; (2) his conduct was comparable to that of an employee outside of the protected class; and (3) he was treated differently from the other employee. See, e.g., Taylor v. Virginia Union University, 193 F.3d 219, 234 (4th Cir. 1999) (en banc).2 A. Hart claims that he was discriminated against with respect to work assignments, discipline, and the denial of his transfer. These claims do not constitute adverse employment decisions. Adverse

Hart asserts many of his discrimination claims under 42 U.S.C.

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