Tae V. Nc Pepsi Case

Submitted By lurchvegas
Words: 2383
Pages: 10

No. 3:09cv36.
United States District Court, W.D. North Carolina, Charlotte Division.
August 29, 2011.

MAX O. COGBURN, Jr., District Judge.
This matter is before the court on a motion for summary judgment by Defendant Bottling Group, LLC [docket #21].
I. Background
This is an employment discrimination action in which plaintiff has filed claims against defendant for violation of the Americans with Disabilities Act; race discrimination under Title VII and 42 U.S.C. § 1981; and intentional infliction of emotional distress.
II. Undisputed Facts
Plaintiff, an African-American male who suffers from diabetes, was employed as a vending/cooler delivery driver for defendant beginning in August 2004. Plaintiff's position required him to deliver and restock Pepsi product in stores, businesses, and freestanding vending machines on a pre-determined route. (Affidavit of Mitzi T. Gechter ¶ 5, Ex. A. to Def.'s Br. Supp. Mot. Summ. J., docket no. 22.) As part of his delivery driver responsibilities, plaintiff operated a 10,000-plus pound truck filled with defendant's merchandise on Charlotte-area streets and highways. (Id.)

Because defendant's fleet includes commercial motor vehicles, defendant is required to comply with Department of Transportation ("DOT") rules and regulations governing the operation of oversized vehicles. (Id. ¶ 6.) DOT regulations require defendant's drivers to pass a physical examination given by an independent physician before receiving the certification necessary to operate a vehicle legally. See 49 C.F.R. §§ 391.41, 391.43(f), 391.45. To comply with the DOT regulations, defendant requires all of its employees to pass DOT certification before being permitted to drive. (Gechter Aff. ¶ 6.)
After working for defendant for approximately two years without incident, plaintiff made numerous trips to a Charlotte-area emergency room over the course of several days because he believed he was a danger to himself and others. He was eventually admitted to Gaston Memorial Hospital's psychiatric ward for in-patient treatment for what treating physicians ultimately diagnosed as "psychotic disorder . . . with paranoid delusions," with possible schizophreniform disorder.2 (See Ex. L to Def.'s Br. Supp. Mot. Summ. J., docket no. 22.)
Plaintiff took a disability related leave of absence from December 14, 2006, until his return to defendant's facility on February 5, 2007. (Gechter Aff. ¶ 10.) When plaintiff returned from his two-month leave of absence, defendant sent him for medical re-certification pursuant to the DOT regulations.3 (Id. ¶ 11.) Plaintiff was unable to obtain the required DOT certification. (Id. ¶ 14.) Defendant, therefore, refused to allow plaintiff to continue in his position as a driver. Defendant offered to let plaintiff apply for other positions within the company that did not require the required DOT certification, but plaintiff refused such positions.4
Plaintiff filed a complaint in this court on February 1, 2009. Plaintiff brings the following claims against defendant: race discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981; disability discrimination under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq.; and intentional infliction of emotional distress.
III. Standard of Review on Summary Judgment
Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the burden of initially coming forward and demonstrating the absence of a genuine issue of material fact. Celotex Corp. v.