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FERNBACH v. DOMINICK'S FINER FOODS

July 26, 1996

MICHAEL J. FERNBACH, Plaintiff,
v.
DOMINICK'S FINER FOODS, a Delaware corporation, Defendant.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Michael Fernbach brings this employment discrimination action against Dominick's Finer Foods, claiming that the defendant discriminated against him on the basis of his mental disability in violation of the American with Disabilities Act, 42 U.S.C. § 12101 et seq. Presently before the court is the defendant's motion for summary judgment. For the reasons set forth below, the motion is granted.

 I. Background

 At age seventeen, Fernbach began his Dominick's career in April 1980, first working as a check-out bagger, then as a cashier, and later as a stock clerk. Unfortunately, in September 1984, the plaintiff required emergency brain surgery for a cerebral aneurysm. During the surgery, Fernbach suffered a stroke that caused "substantial neurological impairments, including . . . a seizure disorder, cognitive impairment[,] and a speech impediment." Pl.'s 12(N)(3)(b) P 1. *fn1" According to the plaintiff, the mental impairments render mental tasks difficult, including reading comprehension, performing mathematical functions, and remembering and following instructions. Id. P 2.

 After the surgery, Fernbach returned to Dominick's part-time in March 1985, performing inventory duties in the dairy section. However, he had some difficulty fulfilling his duties, see Def.'s 12(M) PP 33-34; Pl.'s 12(N) PP 33-34, and eventually asked to return to the night stock clerk position. After this request was granted, Fernbach was transferred to another store in July 1986. A supervisor and eventual store manager, Eddie Santiago, thought the plaintiff was "hard-working and dedicated," but Santiago had to occasionally reassign tasks from Fernbach to other employees in exchange for other "less complicated" tasks. Santiago Aff. PP 3-4. For example, when the plaintiff encountered trouble using an ordering gun, Santiago told Fernbach that "he no longer had to use the ordering gun." Def.'s 12(M) P 41. According to Santiago,

 
On several occasions, it was necessary that I repeat or explain in detail instructions to MICHAEL FERNBACH so that he could fully understand tasks that were being assigned to him.

 Santiago Aff. P 5.

 Fernbach continued to work at Dominick's until 1995. In early January 1995, *fn2" the plaintiff wanted to buy some Dominick's store merchandise, specifically, Fred Flintstone picture frames, a Christmas ornament, and a Burl Ives compact disc. See Pl.'s 12(N)(3)(b) P 8; Def.'s 12(M) P 64. However, he was not carrying enough money with him, and thus stored the items in his employee locker, intending to purchase the items when he returned from the vacation on which he was about to depart. Pl.'s 12(N)(3)(b) P 8. On January 9 or 10, 1995, the plaintiff returned to work. Prior to the start of his shift, Fernbach took Wolverine comic books from the magazine rack and placed them in his locker. Def.'s 12(M) P 62. According to Fernbach, and uncontested by the defendant, the plaintiff "had sufficient money with him to purchase the items, which he intended to do at the end of his shift." Pl.'s 12(N)(3)(b) P 9; Def.'s Reply to 12(N) P 9.

 However, after Dominick's "Loss Prevention Officer" Bradley Kister spotted Fernbach placing the comics in the locker, Pl.'s 12(M) Appdx., Ex. C at F56, Kister and store security chief Dan Dietterle *fn3" found the merchandise in the locker after Fernbach willingly opened it. See Def.'s 12(M) P 63; Pl.'s 12(N)(3)(b) P 10. According to reports prepared by Kister and Dietterle, Fernbach stated that he intended to pay for the merchandise after the shift. Pl.'s 12(N)(3)(b) P 10, Appdx., Ex.C at F55-56. Fernbach was escorted to the security office where, according to the plaintiff, he was "pressured" to sign a preprinted "Employee Statement" form that he did not understand; the form stated that Fernbach admitted to taking merchandise "without paying for said merchandise and intending to permanently deprive said company of such merchandise." Pl.'s 12(N)(3) P 12. According to Kister's report, the plaintiff "was sent home," Pl.'s 12(N)(3)(b), Appdx. Ex. C at F56, and apparently suspended, see Pl.'s 12(N)(3)(b) P 18.

 At the second meeting, on January 18, Howell met with Fernbach and Santiago, who had been on vacation since January 10. Fernbach explained to Howell that the plaintiff "understood the receipt policy to mean that he could not take food or drink items into the break area, but that he did not understand that the policy prohibited him from taking other non-consumable items to his locker to be purchased before removing them from the store." Id. P 16. Notwithstanding Santiago's protests to Howell against disciplining Fernbach, Pl.'s 12(N)(3)(b) P 19, Howell's case report indicates that Fernbach was terminated, apparently on January 18, Pl.'s 12(N)(3)(b) Appdx., Ex. C at F53. Soon after the discharge, Fernbach's attorney wrote to Dominick's, unsuccessfully requesting reinstatement in light of the plaintiff's disability and other circumstances. Pl.'s 12(N)(3)(b) P 21, Appdx., Ex. C at F19-21.

 Fernbach now brings this action pursuant to title I of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111-12117, alleging that Dominick's discriminated against him based on his mental disability. Dominick's moves for summary ...


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